MAY 1994

CC>JMISSIQN DECISIONS AND ORPERS
05-02-94
05-10-94
05-26-94

Mission Valley Concrete
WEST 92-702-M
United States Steel Mining Co.
WEVA ·92-783
Prabhu Deshetty empl. by Island Creek Coal KENT 92-549

Pg. 1041
Pg. 1043
Pg. 1046

ADMINISTRATIVE LAW JUDGE DECISIONS
05-09-94
05-10-94
05-11-94
05-12-94
05-12-94
05-12-94
05-13-94
05-13-94
05-16-94
05-16-94
05-18-94
05-23-94
05-23-94
05-25-94
05-25-94
05-27-94
05-27-94
05-31-94

Arizona Portland Cement
Blue Bayou Sand & Gravel
Thunder .Basin Coal Company
T and F Sand & Gravel, Inc.
RB Coal Company, Inc.
New Warwick Mining Company
Randall Patsy v. Big 'B' Mining Co.
Southern Ohio Coal Company
Remp Sand & Gravel
W.J. Bokus Industries, Inc.
Thunder Basin Coal Company
Kenneth D. Kellar v. Owl Rock Products
BHP Minerals International
Donnie Skidmore d/b/a 3-Boy Coal
United States Steel Mining Co.
Sec. Labor on behalf of Mitchell Bostic &
William Wood v. Jim Walter Resources
S & H Mining, Inc.
Hickory Coal Company

.WEST 93-627-M
CENT 93-216-M
WEST 94-238-R
CENT 91-215-M
KENT 93-853
PENN 93-199-R
PENN 94-132-D
LAKE 93-233
WEST 93-295-M
YORK 92-106-M
WEST 94-148-R
WEST 93-136-DM
CENT 92-329
KENT 94-125
WEVA 92-783

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

1055
1059
1070
1077
1078
1083
1094
l.096
1134
1136
1142
1148
1177
1185
J.189

SE
93-629-D
SE
93-386
PENN 93-86

Pg. 1194
Pg. 1195
Pg. 1197

KENT 94-278-D
YORK 93-149-M

Pg. 1201
Pg. 1203

ADMINISTRATIVE LAW JUDGE ORDERS
05-02-94
05-27-94

Douglas DeRossett v. Martin County Coal
Fletcher Granite Company, Inc.

i

MAY

1994

Reyiew was granted in the following cases <luring the month of May:
Secretary of Labor, MSHA v. Mission Valley Concrete, Docket Nos.
WEST 92-702-M, etc.
(Judge Cetti, Default Order of Maren 21, 1994 unpublished)
Secretary of Labor, MSHA v. Power Operating Company, Docket No . PENN 93-51.
(Judge Weisberger, March 23, 1994)
Secretary of Labor, MSHA v. U.S. Coal, Inc., Docket No . SE 93-119.
Fauver, March 29, 1994)

(Judge

Lion Mining Company v. Secretary of Labor, MSHA, Docket No. PENN 94-71-R.
(Judge Hodgdon, March 29, 1994)
Secretary of Labor, MSHA v . Doss Fork Coal Company, Inc . , Docket No.
WEVA 93 - 129.
(Judge Melick, April 12, 1994)
Secretary of Labor, MSHA v. Energy West Mining Company, Docket No.
WEST 93-169.
(Judge Morris, April 18, 1994)
Jim Walter Resources, Inc., v . Secretary of Labor, MSHA, Docket No.
SE 93-56-R, etc.
(Judge Melick, April 18, 1994)
Keystone Coal Mining Corporation v . Secretary of Labor, MSHA, Docket No.
PENN 91-451-R - Master Docket No. 91-1.
(Judge Broderick, April 20, 1994)
The following is a list of cases in wbich reyiew was denied;
Secretary of Labor, MSHA v. United States Steel Mining Company, Docket No.
WEVA 92-783.
(Judge Fauver certification of Interlocutory Ruling, April 15,
1994)
Secretary of Labor, MSHA v. L & J Energy Company, Docket No. PENN 93-15.
(Judge Weisberger, April 12, 1994)

ii

COMMISSION DECISIONS AND ORDERS

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

May 2, 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. WEST 92-702 -M
WEST 92-703 - M
WEST 92-704-M

v.
MISSION VALLEY CONCRETE

BEFORE:

Jordan, Chairman; Backley, Doyle, and Holen, Commissioners
ORDER

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On August 24,
1993, Administrative Law Judge August F. Cetti issued a Prehearing Order to
Mission Valley Concrete ("MVC"). MVC did not respond to the Prehearing order.
On February 4, 1994, the judge i.ssued an Order to Show Cause directing MVC to
respond to the Prehearing Order. MVC failed to respond to that ·order. On
March 21, 1994, the judge issued an Order of Default to MVC and assessed a
civil penalty of $1,949. For the reasons that follow, we vacate the default
order and remand for further proceedings.
On March 28, 1994, the Commission received a letter, filed by facsimile
transmission, from MVC. The letter, signed by MVC President W. Greg Hard ing,
asked that the case be reconsidered. MVC asserted that it had two settlement
discussions with an attorney representing the Secretary of Labor and that,
notwithstanding a commitment to respond to its settlemen t offer, the
Secretary's attorney had not done so.
The judge's jurisdiction in this matter terminated when his decision was
issued on March 21, 1994. Commission Procedural Rule 69(b), 29 C.F.R.
§ 2700.69(b)(l993) . Under the Mine Act and the Commission's procedur al rules,
relief from a judge ' s decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823( d )(2);
29 C.F.R. § 2700.70(a). We deem MVC's letter to be a timel y filed Petition
for Discretionary Review, which we grant . See, .!L..&.:,.. . Middle States Re~ ources.
Inc. , 10 FMSHRC 1130 (September 1988) .

1041

We note that MVC has not asserted that it did not receive the judge's
Prehearing Order or his Order to Show Cause . On the basis o; the present
record, we are unable to evaluate the merits, if any, of MVC's position.
Accordingly, we remand this matter to the judge, who shall determine whether
default is warranted. See Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990).

airman

/,~/~~

Richard V. Backley, Commissioner(/'

Arlene Holen, Commissioner

Distribution:
Susan J. Eckert, Esq.
Office of the Solicitor
U.S . Department of Labor
1999 Broadway, Sutie 1600
Denver, Colorado 80202- 5716

W. Greg Harding, President
Mission Valley Concrete
P.O. Box 395
Pablo, MT 59855
Administrative Law Judge August F. Cetti
Federal Mine Safety and Health Review Commission
1244 Speer Boulevard #280
Denver, Colorado 80204-3582

1042

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

May 10, 1994
SECRETARY OF I.ABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 92-783

v.

UNITED STATES STEEL MINING CO., INC.

BEFORE:

Jordan, Chairman; Backley, Doyle and Holen, Commissioners ·

ORDER
~y

THE COMMISSION:

The issue in this civil penalty proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988), is whether
interlocutory review should be granted. See Commission Procedural Rule 76, 29
C.F.R. § 2700.76 (1993)("Rule 76"). The Commission remanded this case to
Administrative Law Judge William Fauver for his determination, within the
framework of Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), of whether the
violation at issue was "significant and substantial." U.S. Steel Mining Co.,
15 FMSHRC 2445, 2448-49 (December 1993). On April 15, 1994, the judge issued
a "Decision on Remand," in which, on his own motion, he certified his ruling
for interlocutory review. See Rule 76(a)(l)(i). Both parties have filed in
opposition to interlocutory review.

1043

We conclude that Judge Fauver's ruling does not meet the criteria for
interlocutory review set forth in Rule 76(a)(2) and, accordingly, review is
denied. The judge is directed to issue a final disposition, on the existing
record, pursuant to the Commission's previous remand instructions. 15 FMSHRC
at 2448-49.

Arlene Holen, Commissioner

1044

Distribution
Billy M. Tennant, Esq .
U.S. Steel Mining Company
600 Grant Street
Pittsburgh, PA 15219
Colleen A. Geraghty, Esq.
Office of the Soiicitor
U.S. Department of Labor
4015 Wilson Blvd .
Arlington, VA 22203
Administrative Law Judge William Fauver
Federal rline Safety & Health Review Commission
5203 Leesburg Pike, Suite luOO
Falls Church, VP. 22041

1045

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

May 26, 1994

SECRETARY OF LABOR,
MINE SAFETY AND H~TH
ADMINISTRATION (MSHA)

v.

Docket No. KENT 92-549

PRABHU DESHETTY, employed by
ISLAND CREEK COAL COMPANY

BEFORE:

Backley, Doyle and Holen, Commissioners 1

DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"). The
issue is whether Prabhu Deshetty, employe~ by Island Creek Coal Company
("Island Creek"), knowingly authorized a violation of a mandatory standard (30
C.F.R. § 75.400) 2 and, thus, is individually liable under section llO(c) of

1

Chairman Jordan has elected not to participate in this matter. She
assumed office after this case had been considered at a Commission decisional
meeting. A new Commissioner possesses legal authority to participate i~
pending cases, but such participation is discretionary. Commissioner Nelson
participated in the consideration of this case but passed away before the
decision was issued. Pursuant to section 113(c) of the Mine Act, 30 U.S.C.
§ 823(c), we have designated ourselves a panel of three members to exercise
the powers of the Commission.
2

Section 75.400 provides:
Accumulation of combustible materials.
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.

1046

the Mine -Act, 30 U.S.C. § 820(c). 3 Administrative Law Judge Gary Melick
concluded that
violation of section 75.400 occurred and that Deshetty was
individually liable for it under section llO(c) of the Act. 15 FMSHRC 830
(May 1993)(ALJ). He assessed a $1,500 civil penalty. Id. at 835. Deshetty
filed a petition for discretionary review challenging the judge's liability
and penalty findings. For the reasons set forth below, we affirm the judge's
decision.

-a

I.
Factual and Procedural Background
Island Creek operates the Hamilton No. 2 Mine, an underground coal mine
in Union County, Kentucky. On January 15, 1991, Inspector Harold Gamblin of
the Department of Labor's Mine Safety and Health Administration ("MSHA"),
observed a black area near the header of the No. 1 belt drive, consisting of
fine coal and float coal dust 100 to 125 feet in length. I Tr. 41-42. 4
Inspector Gamblin also observed another pile of fine coal and coal dust 36
inches in height near the belt takeup. 15 FMSHRC at 831-32; I Tr. 42-43. The
inspector saw additional substantial accumulations along the belt, which he
determined had been there for a week or longer. 15 FMSHRC at 831, 832, 834; I
Tr. 43, 45-47, 56-58.
The inspector orally ordered the closing of the belt and issued an
order, pursuant to section 104(d)(2) of the Mine Act, 30 U.S.C. § 814(d)(2),
alleging a violation of section 75.400. In the belt examiners' books from
January 7, 1991, through the date of the inspection, he found 12 entries
noting that the No. 1 belt needed cleaning. 15 FMSHRC a~ 834; G. Ex. 3. The
inspector determined that Island Creek's negligence was aggravated. MSHA
3

Section llO(c) provides:
Whenever a corporate operator violates a
mandatory health or safety standard or knowingly
violates or fails or refuses to comply with any order
issued under this [Act) or any order incorporated in a
final decision issued under this [Act], except an
order incorporated in a decision issued under
subsection (a) of this section or section [lOS(c)]
... ,any director, officer, or agent of such
corporation who knowingly authorized, ordered, or
carried out such violation, failure, or refusal shall
be subject to the same civil penalties, fines, and
imprisonment that may be imposed upon a person under
subsections (a) and (d) of this section.

30 U.S.C. § 820(c) .
4

A hearing in this matter was held on November 18-19, 1992. "I Tr."
refers to the transcript for November 18; "II Tr." refers to the transcript
for November 19.

1047

conducted a special investigation into the circumstances surrounding the
alleged violation and ~rought section llO(c) civil penalty proceedings against
Prabhu Deshetty, the general mine foreman, and other supervisory personnel. 5
At the hearing, Deshetty defended on the grounds that no violation had
occurred and that, even if a violation had occurred, he had not been
responsible for it within the meaning of section llO(c) . 6 The judge found
that significant loose coal and coal dust accumulations existed along the No.
1 belt in violation of section 75.400. 15 FMSHR.C at 832. lQ...... The judge
determined that Deshetty knowingly authorized, ordered or carried out the
violation of section 75 . 400, and was therefore liable under section llO(c) of
the Mine Act . Id . at 833-35 . In assessing a $1,500 civil penalty against
Deshetty, the judge found both high gravity and high negligence . Id. at 835 .
II .
Disposition
Section llO(c) of the Mine Act provides that, whenever a corporate
operator violates a safety or health standard, an agent of the corporate
operator who "knowingly authorized, ordered, or carried out such violation"
shall be subject to individual civil penalty under the Act. Deshetty contends
on review that no violation of section 75.400 occurred. He contends
alternatively that, if the finding of violation is affirmed, he had not
knowingly authorized, ordered, or carried it out . Deshetty also argues that
the civil penalty is excessive because the judge ' s findings of high gravity
and negligence are not supported by substantial evidence and are contrary to
law. The Secretary responds that substantial evidence supports the judge's
findings that an accumulation violation occurred and Deshetty knowingly
authorized, ordered, or carried out that violation.
A.

Section llO( c ) Liability
1.

Violation of section 75.400

Deshetty raises both legal and evidentiary objections to the judge's
finding of violation . He asserts that the cited coal accumulations were wet
and, therefore, were incombustible material not subject to section 75.400.
5

The Secretary also brought section llO(c) penalty proceedings against
Curtis Crick, mine shift foreman, James Bo Jones, shift belt foreman, and
Charles Wright, mine foreman, which were consolidated before Judge Melick.
The judge dismissed the proceedings against Crick, Jones and Wright because
the Secretary failed to file the penalty petitions within the 45-day time
limit set forth in former Commission Procedural Rule 27(a), 29 C.F. R.
§ 2700 . 27(a)(l992)(penalty proposal). 15 FMSHR.C 735 (April 1993) (ALJ).
6

The Secretary also proceeded against Island Creek for the alleged
violation. Island Creek Coal Co . , Docket No. KENT 92-1034-A . Upon the
request of the parties, that proceeding was stayed by Judge Melick in October
1993, pending resolution of the present matter .

1048

However, the C~mmission has held, as the judge noted, that material consisting
of wet or damp coal falls within the prohibition of section 75 . 400 because
such material may, when it dries out, ignite or propagate a mine fire. 7 See
Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120-21 (August 1985); Utah
Power & Light Co .. Mining Division, 12 FMSHRC 965, 969 (May 1990), aff'd, 951
F . 2d 292 (10th Cir. 199l)("UP&L").
Deshetty also argues that a violation of section 75.400 occurs only when
an accumulation of combustible materials has built up over a period of time
and that the spillage in question had not been present long enough to qualify
as an accumulation. · He contends that the cited coal material was merely the
type of spillage that is inevitable in mining operations.
We reject Deshetty's assertions. Congress intended to proscribe "masses
of combustible materials which could cause or propagate a fire or explosion."
UP&L, 12 FMSHRC at 968, quoting Old Ben Coal Co., 2 FMSHRC 2806, 2808 (October
1980). We conclude that the accumulations in question, which were
substantial, were prohibited within the meaning of the standard.
Further, the inspector, whose testimony was credited by the judge,
testified that a 36 - inch high accumulation near the belt takeup had been there
for some time and that the operator was aware of it because it had been
rockdusted at least twice . 15 FMSHRC at 831-32; I Tr. 41 - 45; G. Ex. 4.
Island Creek witness Stan Bealmar, who had accompanied the inspector, conceded
this accumulation and testified that it probably had developed over two or
three shifts. 15 FMSHRC at 832; II Tr. 207. Both Deshetty and shuttle car
driver James Hill acknowledged the existence of a pile of coal near the
header. 15 FMSHRC at 831-32; II Tr. 88 - 89, 219.
The inspector also discovered various other accumulations along 800 feet
of belt, ranging from 4 to 36 inches in depth and including a black area
consisting of fine coal and float coal dust that extended 100 to 125 feet. I
Tr. 41-49. The inspector determined that these accumulations had also been
there for some time because they consisted of fine coal and coal dust. I Tr.
46-47. According to the inspector, a new spillage would consist of "large
lumps of coal . " I Tr. 47. The evidence of long-standing accumulations is
corroborated by the belt examiners' reports, which indicated that the No. 1
- ·7

We also note that, as Inspector Gamblin explained, there was a
likelihood under the circumstances that the cited coal accumulations would dry
out:
We were in the winter alert which was from
October through March . We ' re about to mid-point in it
in January. That's at the time when the [dry air]
enters the mine ventilation system traveling through
the mines . . . causing very dry and hazardous
conditions, if the combustible materials are allowed
to accumulate and not be cleaned up.
Tr. 73.

1049

belt was dirty or needed cleaning on 12 out of the 13 shifts immediately
preceding the order. G. Ex. 3.
We conclude that substantial evidence8 supports the judge's
determination that the cited accumulations violated section 75.400 and,
therefore, we affirm it. 9
2.

Deshetty's liability under section llO(c)

On both legal and evidentiary bases, Deshetty challenges the judge's
conclusion that he Knowingly authorized, ordered, or carried out the
violation. Deshetty raises arguments concerning the proper interpretation and
scope of secti,on llO(c). See D. Br. 17-33. Based on Chevron U.S.A. Inc. v.
Natural Resources Defense Council. Inc., 467 U.S. 837 (1984), he asks the
Commission to revisit its interpretation of the term "knowingly" in Kenny
Richardson, 3 FMSHR.C 8 (January 1981), aff'd on other grounds, 689 F.2d 632
(6th Cir. 1982), cert. denied, 461 U.S. 928 (1983), and to redefine the level
of awareness or conduct sufficient to subject a corporate agent to individual
liability. Deshetty proposes that "knowingly" in section llO(c) signifies
actual knowledge or "egregious conduct , not ... mere negligence." See D. Br.
21. We do not reach these issues.
Substantial evidence supports the judge's
conclusion that Deshetty possessed actual knowledge of the accumulation
problem along the No. 1 beltline. His failure to address that ongoing problem
was a knowing authorization of the violation within the meaning of section
llO(c).
During the time in question, Deshetty, as general mine foreman, was in
charge of the day-to-day operations of the mine . II Tr. 52 . He was familiar
with the workings and maintenance of the belt, and he reviewed and countersigned the belt examiners' reports for every shift. II Tr. 62 , 73 - 78. Those
reports revealed that the No. 1 belt was "dirty" or "need[ed] cleaning" every
working day from January 7 to January 15, the day of the inspection. G. Ex.
3. Deshetty testified that, when he read a report indicating the belt
8

The Commission is bound by the terms of the Mine Act to apply the
substantial evidence test when reviewing factual determination in an
administrative law judge's decision. 30 U.S.C. § 823(d)(2)(A)(ii)(I). The
term "substantial evidence" means "such relevant evidence as a reasonab;_e mind
might accept as adequate to support [the judge ' s] conclusion. " Rochester &
Pittsburgh Coal Co., 11 'FMSHR.C 2159, 2163 (November 1989), quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) .
9

Deshetty also contends that the inspector possessed a faulty
recollection of what he had written in his order . Although the inspector did
not remember the exact locations of the accumulations, he recalled the 36-inch
pile as well as the existence of other coal piles and their overall
characteristics . The inspector's notes, written contemporaneously with his
inspection, support the inspector's testimony at the hearing. G. Ex . 2. The
notes indicated that loose fine coal and coal dust had been found along
approximately 800 feet of the belt. Id. The order similarly described the
accumulations . G. Ex. 4.

1050

"need[ed) cleaning" or was "dirty," he understood that a violative or
hazardous accumulation was present. II Tr . 131, 133-34. Thus, he had actual
knowledge of the specific accumulation problem along the No. 1 beltline. He
acknowledged that he knew he was "supposed to verify that corrective action
was taken with respect to each and every entry [of] violation or hazard
reported by the belt examiner, " but that, in fact, he did not know whether
those conditions had been corrected. II Tr . 131, 132, 152.
Deshetty also reviewed all citations for the mine. II Tr. 129. During
the preceding year~ the mine was cited 45 times for accumulations of
combustible materials. 15 FMSHRC at 833; G. Ex. 1. Inspector Gamblin
testified that he had discussed with Deshetty the large number of violations
and had recently warned him that the mine needed to "take a closer look" at
the accumulation problem . I Tr. 33-34. Deshetty admitted that he knew of
these prior violations as a result of his review of the mine's citations. 15
FMSHRC at 833; II Tr. 129, 140. The record thus supports the judge's finding
that Deshetty was placed on "specific notice of problems regarding. combustible
accumulations at this mine." 15 FMSHRC at 833 . This notice should have
engendered in Deshetty a heightened awareness of a serious accumulation
problem. ~Peabody Coal Co., 14 FMSHRC 1258, 1264 (August 1992)(for
purposes of determining whether a violation resulted from an operator's
unwarrantable failure to comply with a standard (see 30 U.S.C. § 814(d)(l)), a
"history of similar violations at a mine may put an operator on notice that it
has a recurring safety problem").
Deshetty was aware of the ongoing spillage problem along the No. 1
beltline that ultimately resulted in the citation, but failed to take measures
to remedy the problem. Such inaction by the responsible supervisor, placed on
actual notice by MSHA of the problem, constituted a knowing authorization of
the violation.
In defense, Deshetty argues that, although he was aware that spillage
existed along the No. 1 beltline, he was not aware of its extent and, thus, of
whether it was a prohibited accumulation. See II Tr . 133. 10 In Warren Steen
Construction . Inc. and Warren Steen, 14 FMSHRC 1125 (July 1992), the
Commission explained: "In order to establish section llO(c) liability, the
Secretary must prove only that an individual knowingly acted, not that the
individual knowingly violated the law. " 14 FMSHRC at 1131. Thus, Deshetty ' s
claim of ignorance fails.
Deshetty also asserts that he relied on his fore~3n to remedy the
accumulations and asks the Commission to assess his liability in light of Roy
Glenn, 6 FMSHRC 1583 (July 1984). As noted, however, Deshetty admitted that
it was his responsibility to verify that the foremen took corrective action on
the belts and that he only assumed the foremen had done so. See II Tr. 13132. In Roy Glenn, the Commission said that supervisors "could not close their
eyes to violations, and then assert lack of responsibility for those
10 As the judge found, Deshetty believed that, to be violative, an
accumulation must touch a frictional area and be of a very substantial mass.
15 FMSHRC at 832; II Tr. 139, 163.

1051

violations because of self-induced ignorance." 6 FMSHR.C at 1587. Deshetty
ignored the specific warnings from MSHA about the large number of accumulation
violations at the mine and disregarded the repeated entries in the belt
examiners' reports indicating that the No. 1 belt was in serious need of
cleaning. Therefore, we affirm the judge's determination that Deshetty
knowingly authorized the violation of section 75 . 400.
B.

Penalty

Deshetty ch~llenges the judge's penalty assessment, contending that the
judge's findings of high gravity and high negligence are not supported by the
record and are contrary to law. The Commission has stated: "When a judge's
penalty assessment is at issue on review, the Commission must determine
whether the penalty is supported by substantial evidence and is consistent
with the statutory penalty criteria set forth in section llO(i) of the Mine
Act, 30 U.S.C. § 820(i)." 'Warren Steen, 14 FMSHRC at 1131. 11
'With respect to gravity, the judge determined that the violation was
very serious because of the long-standing nature of the accumulations and
because, in places, the belt rollers were in physical contact with the
accumulations. 15 FMSHRC at 834-35. Deshetty takes issue with the finding
that the rollers were actually in the coal and Island Creek witnesses did not
recall seeing them there. Although Inspector Gamblin could not identify the
exact locations where the accumulations touched the rollers, he testified that
such contact occurred . I Tr . 55-56; II Tr. 354-55 . The judge credited and
accorded great weight to this testimony. 15 FMSHRC at 834. A "judge's
credibility findings ... should not be overturned lightly." Ouinland Coals.
Inc., 9 FMSHRC 1614, 1618 (September 1987), quoting Robinette v. United Castle
Coal Co., 3 FMSHRC: 803, 813 (April 1981) . The fact that the inspector did not
recall the specific areas where the coal touched the rollers is not a
sufficient basis on which to overturn the judge's credibility determinations.
Deshetty also asserts that the accumulations posed no grave danger because the
coal was damp. For the reasons set forth above, we reject this argument.
Accordingly, we affirm the judge's gravity finding .

Section llO(i) sets forth six criteria for assessment of penal~ies
under the Act:
11

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.
30 u.s.c. § 820(i).

1052

Deshetty . argues that a finding of high negligence was not appropriate
under the Secre't ary' s penalty regulations at 30 C.F.R. Part 100 because he had
no actual knowledge of the p:~·ohibited accumulatiollS and because there were
other mitigating circumstauces .. It is well settled that the Secretary's Part
100 regulations apply only to Che Secretary's penalty proposals and that the
Commission exercises independent authority to assess penalties pursuant to the
six statutory criteria set forth in section llO(i). Sellersburg Stone Co., 5
FMSHRC 287, 291 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). We have
concluded that Deshetty had actual knowledge of the accumulations along the
No. 1 belt and that he failed to remedy the conditions, thereby displaying a
high degree of negl'igence.
We conclude that the findings relied upon by the judge in assessing a
$1,500 penalty are supported by substantial evidence and that the penalty is
consistent with the statutory penalty criteria. Therefore, we affirm the
judge's penalty assessment.
III.

Conclusion
For the reasons set forth above, we affirm the judge's decision.

L~v-7fJ~
.Richard V. Backley, Commissioner\?

Arlene Holen, Commissioner

1053

Distribution
Timothy X. Biddle, Esq.
Thomas C. Means, Esq.
J. Michael Klise, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C:-. 20004
Susan E. Long, Esq.
Office of the Solicitor
U.S . Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Comnission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1054

ADMINISTRATIVE LAW JUDGE DECISIONS

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

MAY 9 1994
-

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

.: CIVIL PENALTY PROCEEDING
: Docket No. WEST 93-627-M
. A.C. No. 02-01138-05529
. Rillito Mill
..
DECISION

Appearances:

Susanne Lewald, Esq., Office of the Solicitor,

u. s. Department of Labor, San Francisco,

California, for Petitioner;
Williams. Jameson, Esq., O'Melveny & Myers, Los
Angeles, California, for Respondent .
Before:

Judge Amchan
Factual Background

On April 29, 1993, Michael Pritchard, a welder-repairman
employed by Respondent, fell through the roof of the old mill
building at the company's Rillito, Arizona concrete plant
(Jt . Exh-1, Stipulation# 6, Tr . 69) . A small section of the
roof, which had rusted, gave way when Pritchard stepped on it
(Tr. 26, Exh. R-1, G-4) . He landed on a catwalk 20 feet below
and sustained a concussion and broken elbow (Tr. 9).
Pritchard and his partner, Charles Doty, went to the roof to
repair · an exhaust fan in accordance with the instructions from
their supervisor, Joe Vigil (Tr. 69, Exh. R-1). Mr. Vigil did
not check the integrity of the roof, on which employees rarely
worked, before assigning Pritchard and Doty to their task
(Tr. 28).
The roof, which apparently was the original one installed on
the building in 1969, had last been inspected in May 1992, by
David Carrekner, a mechanical engineer employed by Respondent
(Exh R-1, R-2, Tr. 102-106). At that time, Mr. Carrekner found
nothing wrong with the roof (Exh. R-2, Tr. 104) . Sections of
this roof had been replaced in June, 1991 (Exh. R-2). Prior to
the accident, an inspection of the roof had been scheduled for
May, 1993 (Tr. 106).
1055

The .' roof was made of corrugated steel supported by steel
beams running perpendicular to the corrugations in the steel at
f our foot intervals (Tr. 47, 107) . It was approximately 28 feet
long, 3 9 feet wide and 72 feet above the ground (Exh. R-1) 1 •
At no time on April 29, did Mr. Pritchard and Mr . Doty approach
the edge of the roof (Tr. 73). 2
The accident was immediately reported to MSHA (Tr . 109).
The next day- inspector Benito Orozco came to Respondent's Rillito
plant to conduct an investigation (Tr. 9). As a result of that
investigation he issued citation number 4124227 to Respondent .
This citation alleged a "significant and substantial" violation
of section 104(a) of the Act and the regulation found at 30
c.F.R. § 56.15005. The regulation provides :
Safety belts and lines shall be worn when persons work
where there is a danger of falling • ••
Subsequently, a $1,800 civil penalty was proposed for the
violation .
Analysis
In deciding whether an operator has violated MSHA's
regulations pertaining to the use of safety belts, the commission
determines whether a reasonably prudent person familiar with the
mining industry would recognize a danger of falling warranting
the wearing of safety belts and lines . Great Western Electric
company, 5 FMSHRC 840, 842 (Maj 1983); Lanham coal company, 13
FMSHRC 1341 (September, 1991).
A threshold issue in the instant case is whether you
evaluate Respondent's conduct in light of what it knew or should
have known prior to the accident, or in light of what it knew
after Mr. Pritchard fell through the roof . I find that
Respondent's conduct is to be judged in the context of what it

1

The dimensions of the roof of the old mill building given
at hearing by inspector Orozco appear to be those of the adjacent
structure (Tr. 12, Exh. R-1).
2Mr.

Pritchard testified that he was never closer to the
edge than 15 feet (Tr . 73). Exhibit R-1, however, indicates that
the fan on which he was working was only 8 feet from the North
end of the building .
3

The cited cases involve standards with identical wording to
section 56.15006, which are found at 30 C. F.R. S 57.15-5 and
§ 77.1710.

1056

knew or reasonably should have known prior to sending
Mr. Pritchard to repair the fan on the roof of the old mill
building .
One can speculate that the fact that the April 29, 1993,
accident occurred establishes that either the Respondent's
May 1992 inspection of the roof was inadequate or that the roof ,
given its age, needed to be inspected more frequently than once a
year to assure employee safety. However, nothing in the record
of this proceeding provides any basis for converting such
speculation into a finding of fact.
Inspector Orozco, the Secretary's only witness, opined that
a prudent employer cannot rely on a roof inspection made 11
months earlier (Tr. 41). However, he does not have a background
in chemical or structural engineering and has had no training
with regard to how frequently roofs should be inspected · (Tr. 4243).

So far as this record shows, Respondent conducted a roof
inspection in May, 1992, that was adequate. Further, there is
nothing in this record to suggest that a prudent employer would
have inspected the roof of the old mill building more frequently.
Finally, the evidence suggests that the appearance of the roof
from above and below provided no basis for suspecting that any
part of it would not support the weight of the employees working
on it.
Mr. Pritchard testified that the roof looked fine to him
before he fell (Tr. 71-72). Employee safety representative Frank
Obregon testified that examination of the roof from below, after
the accident, revealed no obvious signs of deterioration (Tr. 9293).

An employer may be obligated to require the use of safety
belts if it has an inadequate basis for assumi ng that the roof
will support an employee's weight. However, the record in this
case allows only an inquiry as to whether a reasonably prudent
operator would require his employees to wear a safety belt, tied
off to a safety line, when he is going on a roof which the
operator can reasonably assume will not collapse, and the
employees will not approach the edge of the roof.
There is nothing in this record to indicate that a
reasonably prudent operator would require his employees to use
safety belts in such a situation. While Inspector Orozco may be
very capable at other aspects of· his job, nothing in the record
indicates that he has any experience which would qualify him to
determine whether a reasonably prudent operator would have
required the use of safety belts on April 29.
Respondent was unaware of any other instance in which a

1057

person had fallen through a corrugated. steel roof (Tr . 110-111).
Given this fact and the fact that on this record there was no
reason to believe that the roof might not support the weight of
the employees, the company safety rule requiring the use of
safety belts only when employees were working near the edge of
the roof fulfills Respondent's obligations under the cited
standard.
Since the Secretary has tailed to prove that a reasonably
prudent operator would have required the use of safety belts by
the employees working on the roof of the old mill building on
April 29, 1993, citation number 4124227 is VACATED .
ORDER
Citation number 4124227 is hereby VACATED and this case is
DISMISSED.

Ar hur J. Amchan
Administrative Law Judge
703-756-6210

Distribution:
Susanne Lewald, Esq . , Office of the Solicitor, u. s. Department
of Labor, 71 Stevenson St., Suite 110, San Francisco, CA 94105
(Certified Mail)
Williams. Jameson, Esq . , O'Melveny & Myers, 400 South Hope St . ,
Los Angeles, CA 90071-2899 (Certified Mail)
/jf

1058

FEDERAL MINE SAFE1Y AND HEALlll REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE .
FALLS CHURCH, VIRGINIA 22041

MAY 1 0 1994
:

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

••

:

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 93-216-M
A. C. No. 03-01619-05502

.
: Docket No. CENT 93-238-M
: A. C. No. 03-01619-05503
..•
Blue Bayou Sand and Gravel

v.

BLUE BAYOU SAND & GRAVEL,
Respondent

DECISION
Appearance:

Nancy B. Carpentier, Esq., Of·f ice of the Solicitor
U.S. Department of Labor, Dallas, Texas for
Petitioner;
David J. Potter, Esq., Texarkana, Texas for
Respondent

Before:

Judge Weisberger
statement of the case

The Respondent, Blue Bayou Sand and Gravel, operates a
gravel mine on a 10 acre portion of the subject site. 1 At issue
herein is whether Respondent violated various mandatory
regulatory standards set forth in Title 30 of the Code of Federal
Regulations. PUrsuant to notice, a hearing was held in Little
Rock, Arkansas on February 9, 1994. Subsequent to the hearing,
Respondent waived its right to file a post-hearing brief, and in
lieu thereof presented oral argument, and reserved the right to
file a reply to Petitioner's brief within seven days after
service of the brief. Petitioner's brief was to have been filed
three weeks after receipt of the transcript. The transcript was
received by the Commission on March 3, 1994. To date, Petitioner
has not filed any brief.
1

Danny Jewell took over the operation of the subject site
on April 13, 1993. on May 6, 1993, Articles of Incorporation
were issued too. Jewell Co., Inc., "· •• a corporation owned
and created tor D. Jewell Co., Inc. for the purpose of owning
this mine owned by Danny Jewell" (sic) (Tr. 6). A fictional
name, Blue Bayou Sand and Gravel, was issued on December 18,
1993.

1059

Pindings of Paet and Discussion

I.

Citation No. 4116494
Larry D. Slycord has been an MSHA inspector for the last
three years. Prior to that time, his work experience included
working in a quarry for 12 years as a mechanic and, as a
supervisor in the maintenance department.
On April ~8, 1993 , at approximately 9:30 a . m. Slycord, in
the presence of his supervisor, Billy G. Ritchey, inspected the
subj ect site. He observed a pump located on a barqe. The barge
was floating in a creek that was approximately 4 feet deep. The
barge was secured by cables that ran from each of the two front
corners of the barge to the bank where they were attached to
steel stakes. Slycord said that he "would guess" (Tr. 27) that
the barge was 10 feet from the shore .
According to Slycord, the pump, which is attached to a pipe,
pumps water from the creek to the shore. Slycord said that the
pipe was above the water, but he did not recall if it was
suspended. He estimated that the diameter of the pipe was
between 8 to 10 inches.
According to Slycord, when he made his inspection, he was
told that persons go to the barge for maintenance purposes, but
he could not recall the source of this information . Slycord
assumed that Respondent's employees walked on the pipe to get to
the barge to perform maintenance on the pump. He said there were
no handrails on the pipe, nor was there any walkway or catwalk to
the barge. Slycord said that, in essence, a person walking on
the p i pe would have been reasonably likely to have slipped and
fallen. In this ev ent, the person could have hit his head on an
object, or could have drowned. He issued a citation alleging a
violation of 30 C.F . R. § 56 . 11001 which provides as follows:
"Safe means of access shall be provided and maintained to all
working places." (Emphasis added . ) The term "working place", is
defined in 30 C. F.R. § 56 . 2 as follows: "· •• any place in or
about a mine where work is being performed . "
J.E. Jewell, Respondent's safety supervisor, who works at
the site in question, explained that the hose (pipe) running
from the pump to the shore is 6 inches in diameter and

1060

-

flexible. ~ccording to J.E. Jewell, because the pumps' valves
are located . underwater, repairs to the pump are made on the
shore. 2
J.E. Jewell indicated that he has not observed anyone
walking on the pipe to go from the shore to the barge.
Slycord did not observe any person working on the pump while
it was on the barge in the creek . Nor has his testimony
established that, in Respondent's normal operations, persons go
to the barge . I do not accord any weight to his hearsay
testimony that ~omeone whom he could not identify informed him
that such was Respondent's practice. I thus conclude that it has
not been established that the barge, when located on the creek
with a pump on it, was a "working place." Accordingly, there was
no requirement, pursuant to Section 56.1101 supra, to provide
access to the barge while it was floating in the water. Hence,
citation no. 4116494 should be dismissed.
Citation No. 4116495
Slycord testified that on April 28, he climbed on the loader
platform of a K-85ZII loader. He noticed that the windshield,
which he described as having an irregular shape that he esti mated
to be 30 inches high at the highest point, and 26 inches wide at
the widest point, had several cracks that extended from the top
to the bottom, and from one side to the other side. Slycord said
that when he observed the windshield, he was outside the loader,
but that his field of vision was level with the operator's field
of vision. According to Slycord, he looked through the
windshield from the inside out. He indicated that i t was his
opinion that visibility was obscured by the cracks to the extent
that the operator of the vehicle could not operate it safely. He
said that the glare of the sun on the cracks would "impede" the
safe operation of the loader . (Tr. 67) According to Slycord, due
to the impeded vision, a crushing injury could result if the
operator did not see a person in the area, and ran over him, or
ran into another vehicle.
Slycord issued a citation alleging a violation of
30 C. F.R. I 56 . 14103(b). Section 56.14103(b}°, supra, as
pertinent, provides as follows: "If damaged windows obscure
visibility necessary for safe operation, or create a hazard to
the equipment operator, the windows shall be replaced or
removed."
2

J.E. Jewell indicated that the pump is picked up from the
water by a front-end loader located on the shore, and then set
out on the bank to be serviced . He indicated that, in addition,
it is possible to move the barge to the shore by pulling it in by
its cables. Also, a board, 2 inches by 12 inches, located on the
shore can be used to gain access to the barge.

1061

Danny Jewell testified that he saw the windshield on
April 28, after it was cited. He opined that vision was not
obscured. He testified that the previous Saturday he had
operated the loader liftinq motors out of a houseboat. He said
that, in qeneral, vision was not obscured. Specifically he said
he was able to see chains, and persons in the area. He said that
he could see e"(..erythinq, and nothinq was blockinq his vision.
J.E. Jewell testified that he operated the loader before the
windshield had been replaced. He testified that there was
nothinq outside the vehicle that he could not see due to cracks.
He opined that the cracks did not obstruct vision.
Section 56.l4103(b), supra, provides that, in essence,
damaged windows shall be replaced or removed, if they either
obscured visibility, 21: created a hazard to the equipment
operator. The evidence does establish that the windshield was
cracked as described by Slycord. His testimony, however, does
not establish with any deqree of specificity, the extent of the
cracks, 1.e., the percentaqe of total windshield space that was
cracked . He opined, in essence, that the cracks would "impede"
an operator's vision creatinq the hazard of an injury to another
person. However, he indicated that althouqh he observed the
cracks, he did not look at anythinq through the windshield from
the operator's position inside the cab. Hence, his opinion that
vision was impeded, is not supported by his own observations, I
also take coqnizance of the testimony of Respondent's witnesses
who operated the vehicle in question, looked throuqh the
windshield, and did not have their vision obscured. On this
record, I find that it has not been established that the
cracks in the windowshield obscured visibility necessary for safe
operation . Slycord does not alleqe, nor does the evidence
establish, that the cracks created any hazard to the equipment
operator as opposed to a hazard to persons outside the vehicle.
I thus conclude that it has not been established that Respondent
violated Section 56.14103(b) supra. Accordinqly, Citation No .
4116495 shall be dismissed.
Order/Citation No . 4116491. Citation No. 4116493, and Citation
No. 4116492.
Slycord testified that he observed a Euclid haul-truck
loaded with material. He indicated that the material had been
loaded on the truck by a "track hoe" (Tr. 100) that had removed
the material from the pit. When Slycord observed the truck it

1062

was going up an incline, but it had not yet reached the crest. 3
Slycord motioned for the driver of the truck to stop, and
the truck stopped. Slycord said that he told the driver,
William Jewell 4 , (W. Jewell) that he wanted to test the service
and parking ·brakes .of the vehicle, and w. Jewell said that they
do not work. Slycord related that w. Jewell told him that he
uses the transmission to hold the truck.
Slycord then asked w. Jewell to continue driving along the
next portion of the road which, according to Slycord, was almost
level. As the truck continued, Slycord motioned for w. Jewell to
stop. Slycord then heard "air exhaust" (sic) (Tr. 106). He
estimated that ~the truck, which was going 2 to 4 miles an hour,
continued to move, but eventually did stop. Ritchey also
indicated that he heard an exhaust of air from the rear of the
truck that sounded like the sound that air brakes make when they
are applied. Ritchey said that the truck's wheels did not stop
or slow down, and that it looked like the vehicle went faster.
Slycord then had the truck continue down the road. He estimated
that the road was at a 3 percent decline. According to Slycord,
the truck's speed was 2 to 4 miles an hour, when he motioned for
w. Jewell to stop. Slycord indicated that the truck continued to
roll, and came to a stop when the truck reached a level portion
of the road. Ritchey, in essence, corroborated Slycord's
testimony regarding his observations.
Slycord said that he asked w. Jewell if he had inspected the
brakes, and reported the problem with the brakes to the mine
operator. According to Slycord, W. Jewell said that he did not,
and that everybody on the job knew that the brakes did not work.
Slycord indicated that w. Jewell also told him that the truck did
not have any brakes when he was laid off the previous January.
Ritchey testified that when he informed the plant operator
that the truck did not have any brakes, the latter said that
everybody around the plant knew it did not have any brakes.
Neither w. Jewell, nor the plant operator testified. I thus do
not accord much weight to the hearsay testimony of Slycord and
Ritchey.

3
He estimated that the distance from the point where the
truck was loaded by the track hoe at the pit to the crest in the
road was 40 to 50 feet. He also estimated that the road rises in
elevation approximately 7 feet from the point where the Euclid
truck was loaded, to the crest of the road.

4

William Jewell is not related to Danny Jewell. The date
the citation at issue was issued was his first day back on the
site after having been laid off, during the previous winter.

1063

Accordinq to Slycord, he also asked w. Jewell to apply the
parkinq brake and he tried, but it did no~ hold.
Slycord issued an imminent danqer withdrawal order under
Section 107 of the Act, and citations alleqinq violations of
30 c.F.R. §§56.1410l(a) (2), 56.1410l(a), and 56.14lOO(d).
A.

Section 107(a) Withdrawal Order (Order/Citation No.
4116491) .

Section 107(a) of the Act provides as follows:
If, upon any inspection or investiqation of a
coal or other mine which is subject to this
Act, an authorized representative of the
Secretary finds that an imminent danqer
exists, such representative shall determine
the extent of the area of such mine
throuqhout which the danqer exists, and issue
an order requirinq the operator of such mine
to cause all persons, except those referred
to in Section 104(c), to be withdrawn from,
and to be prohibited from enterinq, such area
until an authorized representative of the
Secretary determines that such imminent
danger and the conditions or practices which
caused such imminent danger no longer exist .
The term "imminent danger" is defined in Section J(j) of the
Act to mean "· •• the existence of any condition or practice in
a coal or other mine which could reasonably be expected to cause
death or serious physical harm before such condition or practice
can be abated." 30 u.s.c. § 802(j).
To support a finding of imminent danger, the inspector must
find that the hazardous condition has a reasonable potential to
cause death or serious injury within a short period of time. An
inspector abuses his discretion when he orders the immediate
withdrawal of a mine under section 107(a) in circumstances where
there is not an imminent threat to miners. Utah Power & Light
Co., 13 FMSHRC 1617 (1991).
Due to the presence of inclines and declines in the road on
which the truck in question trav els as part of its normal
operations; the presence of persons working in proximity to the
location of the truck at the track hoe and hopper, both of which
are down an incline from the area where the truck parks in
performance of its work at these locations; the possibility of
another vehicle being on the road at the same time as the truck
in question; and the presence of persons performing construction
work in the area of the route taken by the truck, it is possible
that because a truck at issue had inadequate brakes it might hit
one another object and thus cause injuries. However, the record

1064

before me does not establish that such an event was iJllltlinent
qiven continued mininq operations~ Indeed, after Slycord had
observed th~ truck not stoppinq, and after he was aware of the
comment by w~ Jewell that the truck did no.t have brakes, he
allowed the operator to drive the truck down a qrade to dump its
materials at the hopper.
B.

Citation/Order No. 4116491
1.

Violation of 30 C.F.R.

§

56.14101Cal.

citation/Order No. 4116491, as modified on May 18, 1993, in
addition to alleqinq an imminent danqer also alleqes a violation
of 30 C.F.R. § 56.l410l(a). Section 56.l410l(a), as pertinent,
provides as follows: "(a) Minimum requirements. (1) Selfpropelled mobile equipment shall be equipped with a service brake
system capable of stoppinq and holdinq the equipment with its
typical load on the maximum qrade it travels."
J.E. Jewell testified that prior to April 28, 1993, the
date Respondent was cited, he was not aware of any problems
concerninq the brakes on the truck. on April 29, he inspected
the service brakes. He said that the only problem that he found
in the brakes was that "there was an 'o' rinq out in the air
pod." (Tr. 219) Accordinq to J.E. Jewell, this leak would have
affected brakinq ability only if the brakes were applied for
about 15 minutes. The only repair he performed in order to abate
the citation was to replace the "o" rinq. Danny Jewell,
indicated in response to leadinq questions, that prior to the
issuance of the citation he had observed the truck operatinq, and
it operated in a proper fashion.
In essence, Respondent arques that the citation should be
dismissed because Petitioner did not perform any testinq of the
brakes as required by 30 C.F.R. § 56.l410l(b). Section
56.1410l(b), supra provides, as pertinent, that "service brake
tests shall be conducted when an MSHA inspector has reasonable
cause to believe that the service brake system does not function
as required, • • • ." Section 56.1410l(b) supra, further
provides that the testinq shall be evaluated accordinq to
stoppinq distances set forth in Tables M-l and M-2. In essence,
Respondent arques that had such testinq been performed as
required the vehicle would have stopped as required accordinq to
the tables in Section 56.1410l(b) supra, and the citation would
not have been issued.
While it is true that Petitioner did not test the brakes in
spite of the inspector's conclusion that the service brake system
did not function as required, Respondent is not relieved of its
responsibilities to comply with Section 56.1410l(a) supra.
(Conca-Western Stone co., 13 FMSHRC 1908 (December 1991)
(Judqe Maurer)). To hold, as apparently beinq arqued by
Respondent, that Section 56 . 1410l(a) is not violated in absence

1065

of proof that the vehicle in question had been tested pursuant to
section 56.1410l(b), would render meaninqless the plain languaqe
of section 56.1410l(a) which provides that the truck in question
"shall be equipped .with a service brake system capable of
stoppinq and holdinq the equipment with its typical load on the
maximum qrade of travel."
The truck stopped on an incline road when initially observed
by Slycord. However, both Slycord and Ritchey testified that
when Slycord directed the truck to be stopped, they heard noise
indicatinq to them that the brakes were applied, but that the
truck did not stop, and it continued to roll forward. Their
testimony was n9t contradicted or impeached. I find that the
weight of the evidence establishes that Respondent did violate
Section 56.1410l(a) supra.
2.

Significant and Substantial

Essentially, according to Slycord, the violation he cited is
significant and substantial.
In Mathies Coal co., 6 FMSHRC 1 (January 1984), the
Commission set forth the elements of a "significant and
substantial" violation as follows:
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: (1) 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 reasonable
likelihood that the hazard contributed to will result
in an injury; and, (4) a reasonable likelihood that
the injury in question will be of a reasonable serious
nature. (6 FMSHRC, supra, at 3-4.)
In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129
(August 1985), the Commission stated further 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, 1336
(August 1984).
Clearly the failure of the service brakes to stop the
vehicle in question violates Section 56.1410l(a), and contributes
to the hazard of the truck hitting and injuring a person.
However, the record fails to established that such an event was
reasonably likely to have occurred. In this connection, I take
cognizance of the following conditions: the amount of dirt placed

1 066

between the truck and the track hoe ; the placement of a "bump
block" between the area where the truck stops to load in to the
hopper~ and the hopper; the fact that vehicle normally operates,
at a speed of only, . at the most, 10 miles an hour; and the lack
of evidence of steep grades, or the presence of significant
traffic on the road during times which the vehicle in .question
travels. Accordingly, I find that the violation was not
siqnificant and substantial.
3.

Penalty

In evaluat!ng the gravity of this violation, I consider
the above conditions and take into account (1) the testimony of
J.E. Jewell, that has not been contradicted, that the only thing
wrong with the brakes was a leak in the brake pod which under
normal operations would not affect the brakes; and (2) the fact
that after the leak had been repaired the order at issue was
terminated. I find that the violation was only of a low level of
gravity. since the problem with the brakes appears to have been
only minor, and there is not sufficient evidence that tne truck
continued to roll for any significant distance after the brakes
were applied, I conclude that Respondent's negligence was only a
low degree. Taking into account the remaining factors set forth
in Secti on llO(i) of the Act, I conclude that a penalty of $50 . 00
is appropriate for the violation.

c.

Citation No . 4116493.

Citation No. 4116493 alleges a violation of Section
56 . 14100(d) whi ch requires as follows:
(d) Defects on self-propelled mobile equipment affecting
safety, which are not corrected immediately, shall be
reported to and recorded by the mine operator. The records
shall be kept at the mine or nearest mine off ice from the
date the defects are recorded, until the defects are
corrected. Such records shall be made available for
inspection by an authorized representative of the Secretary.
According to Slycord, he asked w. Jewell , if he did an
inspection of the brakes and reported to the mine operator, and
w. Jewell indicated that he did not. Slycord did not ask to
examine the operator's records. He was informed by Danny Jewell
subsequent to the issuance of this citation, that the latter was
not aware of recordkeeping requirements. Since the service
brakes did not function as required by Section 56.14110(a) supra,
and since no report was made of this condition to the mine
operator, I find that Respondent did violate Section 56.l4100(d)
supra. However, I take note of the parties' stipulation that
Danny Jewell took over the operation of Respondent only 11 days
prior to the issuance of the citation at issue. I also find
Danny Jewell's testimony reliable that prior to the issuance of
the citation, he watched the truck in operation, and did not see

1057

·-

any indi cat_ion that the brakes were not working properly.
Accordingly; I find Respondent's negligence herein to be
extremely low, and find that a penalty of· $20.00 is
appropriate for this violation.

o.

Citation No. 4116492.

Slycord testified that when he initially spoke to w. Jewell,
the driver of the truck in issue, and told him that he wanted to
test the ser'Vice brakes and parking brake the latter driver told
him that "he didn't have any brakes" (Tr. 101). According to
Slycord, at the point in the road before- it reaches the crest in
the incline away from the track hoe, he asked w. Jewell to apply
the parking brake. Slycord indicated that the latter tried to
apply the parking brake, "and it wouldn't hold . " (Tr . 129).
Slycord issued a Citation No. 4116492 alleging a violation
of 30 c.F.R. I 56 . 1410l(a) (2) which provides as follows:
"(a) If equipped on self-propelled mobile equipment, parking
brakes shall be capable of holding the equipment with its
typical load on the maximum grade it travels." Respondent,
in its defense, cites the fact that when the inspector
initially motioned the truck to stop on the incline up from
the track hoe, it came to a stop. Slycord did not indicate
that once the truck had stopped, the parking brake at that
time did not hold the truck . Also, J.E. Jewell testified

that to abate the citation the day after the citation was

issued, he inspected the park ing brake. He explained that
the parking brake is set by pulling on a stick located
inside the truck. He said that when he examined the stick
it was loose and , would not pull up the parking brake, and
set it. J.E. Jewell tightened the stick to get the parking
brake to work . He explained that this procedure is to be
performed by the driver of the truck. No further repairs
were performed on the parking brake, and when reinspected by
the inspector the citati on was abated.

The record before me does not contain any specific
contradiction or impeachment of the inspector's testimony that
after he asked w. Jewell to apply the parking brake it would not
hold. I give considerable weight to the disinterested testimony
of the inspector (See, Texas Industry Inc., 12 FMSHRC 235
(February 1990) (Judge Melick)). I thus find that Respondent
herein did violate Section 56.l410l(a)(2) as alleged.
Considering the mound of dirt protecting the t -r uck from
rolling into the track hoe when parked to receive a load from the
track hoe, and the fact that a bump block protected the truck

1068

from rollinq into the hopper when parked in front of the hopper
to dump into the hopper, I find that the violation was of a low
level qravity. I find that a penalty of $20.00 is appropriate.

ORPIR
It is ordered as follows:
1.
Citation numbers 4116494, 4116495, and the imminent
danqer order set forth in Order/Citation No. 4116491 be
dismissed;
2.
Order/Citation No. 4116491 b& amended to a non
siqnificant and substantial citation; and
3.
Within 30 days of this decision,· Respondent shall pay a
penalty of $90.

al~
Av~erqer

Administrative Law Judge

Distribution:
Nancy B. Carpentier, Esq., Office of the Solicitor,

u.s. Department of Labor, 525 Griffin Street, suite 501,
Dallas, TX

75202 (Certified Mail)

David J. Potter, Esq., 901 N. State Line Avenue, Texarkana, TX
75501 (Certitied Mail)
/efw

1069

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

MAY 1 1 1994
THUNDER BASIN COAL COMPANY,
contestant

CONTEST PROCEEDING
Docket No. WEST 94-238-R
Citation No. 3589040; 2/22/94

v.

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

..
Docket No. WEST 94-239-R
... order No. 3589101; 2/22/94

.. Black Thunder Mine

SUMMARY DECISION

Before: Judge Amchan
overview of the decision
On April 20, 1994, Contestant, Thunder Basin Coa~ Company,
filed a motion for summary decision pursuant to Commission rule
67, 29 C.F.R. § 2700.67. In response, the Secretary of Labor
requested that the motion be denied. The Secretary did not file
a cross-motion and contends that these matters are not ripe for
summary decision for either party.
While the Secretary does not rule out the possibility that
he may file a motion for summary decision in the future, he asks
that these matters be set for hearing. Contestant, replying to
the Secretary, asks that, if its motion is not .granted, that
summary decision be entered for the Secretary.
For the reasons set forth below, I grant summary decision in
favor of the Secretary of Labor despite the fact that he neither
asked for, nor desires such disposition of these matters.
Conversely, I deny contestant's motion for summary decision.
Rule 67 provides that summary decision shall be granted only
if the entire record shows that there is no qenuine issue as to
any material fact; and the moving party is entitled to summary
decision as a · matter of law. Although there is no precedent for
granting summary decision for the non-moving party under the
Federal Mine Safety and Health Act, the weight of authority under
Rule 56 of the Federal Rules of Civil Procedure is that such a
disposition is appropriate if supported by the record.

1070

"Even where the non-movant vigorously opposes a motion for
summary judgment on the ground that triable issues of fact exist,
the trial court is not precluded from entering summary judgment,
if, in reality, no factual dispute exists and the non-movant is
entitled to summary judgment as a matter of law." 6 James w.
Moore, et al., Moore's Federal Practice, §56.12 at 165 (2d ed.
1994). F.D . I.C. v. Sumner Financial Corp., 376 F. Supp. 772
(M.D. Fla. 1974) (Court held that what non-moving party asserted
was a genuine i~sue of fact was only a dispute regarding the
legal significance of the facts); See also In re: Continental
Airlines, 981 F. 2d 1450, 1458 (5th cir. 1993) . 1
Most of the facts on which the Secretary takes issue with
Respondent's "Undisputed Facts Supporting Motion for summary
Decision" pertain to the motivation of the United Mine Workers of
America in fostering the designation of two of its employees as
walkaround representatives for eight employees at Respon4ent's
non-union mine under Part 40 of Volume 30 of the Code of Federal
Regulations . Some of these facts also pertain to the motivation
of the Thunder Basin employees who signed the "UMWA" walkaround
designation.
I grant summary decision for the Secretary because I
conclude that under the controlling precedent, Kerr-McGee Coal
Corporation, 15 FMSHRC 352 (March 1993), appeal pending, D. c.
Cir. No. 93-1250, the motivation of these individuals is
irrelevant. The Secretary states at page 3 of his response to
Contestant's motion, "[i]n addition, the Commission decided that
designating a union member as a walkaround representative or
completing a designation form for the purpose of union organizing
is not an abuse of the walkaround right." As I believe that is
an accurate interpretation of the Kerr-McGee decision, I conclude
there are no genuine issues of material fact and that under KerrMcGee the Secretary is entitled to summary decision as a matter
of law. 2
1

The Commission in Missouri Gravel Company, 2 BNA MSHC 1481,
1482 n. 2 (November 1981) stated that summary decision without a
motion should not be issued except in the most exceptional
circumstances. In so stating, the Commission appears to
recognize that there may be situations in which summary decision
may appropriately be issued without a motion from either party.
Further, the analysis cited above from Moore's Federal Practice
indicates that prevailing authority deems summary judgment in
favor of the non-moving party more appropriate than summary
judgment wh~n neither party has asked for such disposition of the
case.
2

I essentially agree with Contestant that the disputed facts
are neither material nor genuinely disputed, contestant's reply
to the Secretary's response to motion for summary decision, at

1071

Rather than set this matter for hearing to determine, if
possible, facts that I believe have no bearing of the outcome
under Kerr-McGee, I conclude that is far better to allow
Contestant to pursue this case before the Commission and the
appropriate court of appeals. Before these tribunals Contestant
can either argue that the instant case is distinguishable from
Kerr-McGee or that Kerr-McGee was wrongly decided.
I am convinced that further evidentiary proceedings before
the undersigned would serve little purpose. I conclude that the
instant case is indistinguishable from Kerr-McGee in any manner
that is material. Further, as a Commission judge, I am bound to
follow Kerr-McGee unless it is overruled.
Factual Findings
In September 1990, eight miners employed at contestant's
non-union mine near Wright, Wyoming, signed a form designating
Dallas Wolf and Robert Butera as their representatives under
section 103(f) and Part 40 of volume 30 of Code of Federal
Regulations. 3 Wolf and Butera are employees of the United Mine
Workers of America (UMWA) and not of Contestant (Contestant's
page 2. For example, Judge Lasher's conclusion in Kerr-McGee at
13 FMSHRC 1898, that "[t)he use of 30 C.F.R. Part 40 and the
designation of miner's representatives was part of (the) UMWA's
organizing strategy and was an organizing "tool.", cannot be
seriously questioned. This does not mean that the UMWA or the
Thunder Basin employees who signed the UMWA walkaround
designation are not also genuinely interested in safety at
Contestant's mine or employee walkaround rights.
In paragraph 9, pages 2-5 of its "Response To Undisputed
Facts," the Secretary contends that there is no evidence that the
designation was done for organizing and that, to the contrary,
the deposition testimony of the miners indicates that they wanted
the opportunity to accompany MSHA inspectors and were interested
in safety. Secretary's counsel has conceded to me that these
employees could have satisfied their desire to accompany the
inspector by designating each other as miners• representatives
(Oral argtiment of March 17, 1994, Tr. 131-138). While this does
not mean that these employees may not have a legitimate safety
interest in desiring the assistance of the UMWA during MSHA
inspections, _I find that assisting the UMWA organizational drive
was a major factor in the designation at issue.
3

The principal function of a miners• representative is to
accompany MSHA personnel during their inspections of operators•
worksites .

1 072

Exhibit 2). · Dallas ·wolf is the principal UMWA organizer in the
Powder River Basin (Contestant's Exhibit 1; pp. 39-47). Robert
Butero is a health and safety representative of the UMWA, who
lives in Trinidad, Colorado. He is an employee of the UMWA
department of occupational safety and health, not the organizing
department (Secretary's Exhibit 18). Mr. Butero•s tasks include
serving as an employee walkaround representative during MSHA
inspections. The eight Thunder Basin employees listed themselves
as alternate miners' representatives.
Thunder Basin Coal Corporation refused to recognize the
validity of this designation. The primary reason for this
refusal is that contestant believes that the designation of Wolf
and Butero is an abuse of walkaround provisions of the Federal
Mine Safety and Health Act because it is motivated solely by a
desire to aid the UMWA in its effort to organize the mine. The
company contends that it, thus, infringes on its rights under the
National Labor Relations Act to exclude union organizers from its
property (Contestant's brief in support of motion for summary
judgment, pp. 6-8). 4
In March 1992, contestant obtained an injunction in the
United States District Court for the District of Wyoming
prohibiting MSHA from enforcing the Part 40 designation of the
UMWA employees. However, both the United States Court of Appeals
for the Tenth Circuit and the United States Supreme Court held
that the District Court did not have jurisdiction to issue the
injunction. Thunder Basin Coal Company v. Martin, 969 F. 2d 970,
973 (10th Cir. 1992); Thunder Basin Coal Co. v. Reich, 62
U.S . L.W. at 4062 (U . S. Jan. 19, 1994).
On January 21, 1994, Thunder Basin's President,
J. A. Herickoff, wrote MSHA District Manager William Holgate
inviting MSHA to issue a citation in order to achieve swift
resolution of the legal validity of the designation of the UMWA
employees . Contestant also stated that it expected MSHA to
specify an abatement time "sufficient for the ·parties to pursue
resolution of this important issue before the Commission and the
courts." (Secretary's Exhibit 22).
While MSHA accommodated contestant in its request for a
citation, it declined to set an abatement period which would
delay posting of the UMWA designation on the company bulletin
board until Thunder Basin's challenge to the validity to that
designation was resolved before the Commission and reviewing
4Thus far Thunder Basin coal has successfully resisted the
UMWA's persistent efforts to organize its mine. In 1987, the UMW
.lost an election conducted pursuant to the National Labor
Relations Act at the Black Thunder Mine by a vote of 307 to 56
(FMSHRC Docket No. WEST 93-652-D, Tr. 420).

107 3

Federal courts. At 8:10 a.m., on February .22, 1994, MSHA
Inspector James M. Beam issued citation number 3589040 to
contestant for failure to post the UMWA designation on the
bulletin board near the mine•s bath house. He set an abatement
period of 15 minutes (Citation number 3589040, blocks 2 and 18).
When. 15 minutes elapsed, Inspector Beam issued order number
3589101 pursuant_ to section 104(b) of the Act.
Within hours,
Contestant filed. an application for temporary relief with the
commission and an application for an expedited hearing on its
application. Subsequently, MSHA informed contestant that it
intends to propose a $2,000 daily penalty for the company's
refusal to post the disputed designation .
On March 25, 1994, I issued an order denying temporary
relief . That order was affirmed by the Commission on April 8,
1994, on the grounds that Contestant had not demonstrated a
substantial likelihood that the Commission's findings would be
favorable to it. The Commission also ruled that Thunder Basin
had not shown that the 15 minutes allowed for abatement was
unreasonable.
On April 8, 1994, Contestant abated the alleged violation by·
posting the disputed walkaround designation form (Exh. 1 to
Contestant's Opposition to the Secretary's Motion · for Extension
of Time). on April 20, 1994, Contestant filed the instant Motion
for summary Decision.
The record establishes that there is no genuine issue of material
fact and that the Secretary is entitled to summary decision as a
matter of law.
The Commission's decision in Kerr-McGee Coal Corporation, 15
FMSHRC 352 (March 1993), appeal pending, D. c. Cir. No. 93-1250,
held that it is the conduct of a miners• representative, during a
walkaround under section 103(f), rather than the motivation of
such representative, that must be examined to determine whether
there has been an abuse of the Mine Safety Act's walkaround
provisions, 13 FMSHRC at 361 . The Commission also held that the
Secretary is not required to integrate National Labor Relations
Act concepts into his regulations implementing the walkaround
provisions of the Mine Act, 13 FMSHRC at 362.
In Kerr-McGee, the Commission also addressed evidence of the
sort that Thunder Basin contends distinguishes this case from
Kerr-McGee.
After its evidentiary hearing Kerr-McGee moved the
trial judge to reopen the record to receive newly discovered
evidence. Included in the evidence proffered was "a series of
internal UMWA memoranda to and from [Dallas) Wolf, which it
asserted, revealed that Wolf had been designated as a walkaround

1074

representative in order to facilitate on-going UMWA organizing
activities.", 13 FMSHRC at 355 . The judge denied the motion to
reopen, finding that the documents merely revealed that union
organizing was taking place and that this was established and
undisputed at trial.
The Commission's decision in affirming the tria·1 judge's
denial of the motion to reopen. the record· in Kerr-McGee
implies that the- Commission also did not consider documents
indicating that the walkaround designation · was motivated by UMWA
organizing activities to be material . Therefore, I conclude all
the documentation offered to establish the same conclusion in
this case is irrelevant to its disposition.
In short, the black letter law on the issue involved in this
case is the Kerr-McGee decision. That decision stands for the
proposition that designation of union employees, including one
whose principal function is to organize non-union mines, as
walkaround representatives at a non-union mine, which they are
trying to organize, is not invalid per ~· That decision is
controlling and leads me to conclude that the Secretary is
entitled to summary decision.
CONCLUSION
For the reasons stated herein , I grant summary decision in
favor of the Secretary and affirm citation number 3589040 and
order number 3589101.

21~

Administrative Law Judge
(7 03) 7 56-6210

1075

Distribution:
Thomas c. Means, Esq., Timothy M. Biddle, Esq., Crowell & Moring,
1001 Pennsylvania Ave., N.W., Washington, o.c . 20004 (Certified
Mail)
Thomas F. Linn, Esq., Atlantic Richfield company, 555 Seventeenth
Street, 20th Floor, Denver, co 80202 (Certified Mail)
Margaret Miller~ Esq., Office of the Solicitor, U.S. Dept. of
Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Colleen Geraghty, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Charles W. Newcom, Esq., Sherman & Howard, 633 17th Street,
Denver, co 80202 (Certified Mail)
Ray Mcintosh, P. o. Box 414, Wright, WY

82732 (Certified Mail)

Roy Earle Knutson, Jr., 601 N. Plains Dr., Gillette, WY 82716
(Certified Mail)
Everett Kraft, P. o. Box 127, Upton, WY 82730 (Certified Mail)
/jf

1076

PBDBRAL IUllB SAPB'J.'Y DD JIRAJ.TJI RBV1BW CQK'1"SSIOH
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 1 2 1994
SECRETARY OF LABOR,
MINE SAFETY -AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

:

. CIVIL PENALTY PROCEEDING
:

v.

Docket No. CENT 91-215-M
A.C. No. 25-01054-05504

..: Portable Dredge No. 3
.•

T AND F SAND AND GRAVEL, INC.,
Respondent

DECISION APPROVING SE'l'Tl.IDmfT

Before:

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety
and Health Act of 1977 (the Act). Petitioner has filed a motion
to approve a settlement agreement and to dismiss the case. A
reduction in penalty from $227 to $105 is proposed. I have considered the representations and documentation submitted in this
case, and I conclude that the proffered settlement is acceptable
under the criteria set forth in Section llO(i) of the Act.
WHEREFORE, the motion for approval
and it is ORDERED that Respondent pay a penalty of
30 days of this order. The hea ;'ng scheduled for
is accordingly canceled .

is GRANTED,
5 within
4, 1994,

1

i
!
I

GJ~y Meli

Adfiinistr
Distribution:

.

Tambra Leonard, Esq., Office of the Solicitor,
U.S . Department of Labor, 1999 Broadway, Suite 1600,
Denver, CO 80202-5716
Rick Follmer, President, T and F sand and Gravel, Inc.,
Route 1, Box 106, Elm Creek, NE 68836
/lh

1077

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

MAY 1 2 1994

.
..

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 93-853
A. C. No. 15-13362-03616
RB No. 3 Mine

RB COAL COMPANY, INC.,
Respondent
DECISION

Appearances:

Before:

Donna E. Sonner, Esq., Office of the Solicitor,
U. S. Department of Labor, Nashville, Tennessee,
for the Secretary;
David J. Partin, Engineer, RB Coal Company, Inc.,
Pathfork, Kentucky, for Respondent.

Judge Maurer

This case is before me upon a petition for assessment of a
civil penalty filed by the Secretary of Labor (Secretary) pursuant to section 105(d) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801, et seq., the "Act," charging RB Coal
Company, Inc. (RB} with two violations of the mandatory standards
and seeking civil penalties of $4500 for those violations.
Pursuant to notice, the case was heard in London, Kentucky, on
January 6, 1994. Both parties have since filed post hearing
submissions with proposed findings and conclusions and I have
considered them in the course of my adjudication of this matter.
The two citations at bar, Citation Nos. 3829472 and 3829473,
were both issued by Inspector Roger Dingess of the Mine Safety
and Health Administration (MSHA} as a result of his inspection at
the RB No. 3 Mine on April 8, 1993. The citations were issued
pursuant to section 104(a} of the Act and allege "significant and
substantial" violations of the standards cited therein, which are
30 C.F.R. § 75.220 and 30 C.F.R. § 75.202, respectively. The
former charges that: "The approved roof control plan was not
being complied with on 001 Section where second mining was being
preformed. Breaker Post Q were not set prior to lift 17 which
was cut and lift 18 was taken out." And the latter alleges that:
"The roof of the No. 3 entry was not adequately supported where

1078

persons were -'traveling. Dislodged conventional roof bolts which
had not been replaced. An area 12 X 20 was unsupported and
second mining was being conducted."
Inspector Dingess issued Citation No. 3829472 to RB because
he found an area that the operator had just finished cutting,
where the Q breaker post(s) were not set on either side of the
intersection prior to lift 17. He further testified that the
approved roof control plan in effect at that time provided for
these breaker posts to be installed prior to lift 17.
While second, or pillar mining is being performed, the
purpose of these breaker posts is to insure safe access from this
area while the pillar supports are being removed and to prevent
roof falls from occurring in the intersection.
Inspector Dingess opined that this was a "significant and
substantial" violation because second mining was being p~rformed
on this section and the roof in the area was popping and moving,
already in the process of breaking up, as it started to take the
weight from the pillar removal. Coal ribs were also bursting off
in places in that particular area. In his opinion, with some
14 years experience as a roof control specialist, the inspector
believed that the lack of proper breaker posts as called for in
the roof control plan exposed the continuous miner operator to a
roof fall hazard, and that the failure to so comply with that
provision of the roof control plan was highly likely to lead to a
fatal injury to the miner operator.
The operator concedes the violation of the roof control
plan. It only remains to decide the "significant and substantial" issue and set a penalty for the violation.
A "significant and substantial" violation is described in
section 104(d)(l) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C. F.R. § 814{d)(l). A violation is properly designated
significant and substantial "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 825 (April 1981).
In Mathies Coal Co . , 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and

1 079

substant~al under National Gypsum the Secretary of
Labor must prove: (1) 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 reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature .

In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further 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 contribute~ 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) .
Based on the record evidence -- including the admission by
the operator of the underlying violation, I accept and credit as
~odified below the inspector's expert opinion and find that in
the normal course of continued mining, it was at least reasonably
likely that a roof fall accident would have occurred, and in that
event, injuries of a reasonably serious nature or even a fatal
injury, would have been reasonably likely to occur. Accordingly,
I conclude that the cited violation was "significant and substantial" and serious .
The Secretary has specially assessed this citation at $2000.
I think this is plainly excessive taking into consideration all
the section llO(i) criteria, particularly the fact that this is a
medium-sized operator and the RB No. 3 Mine is now closed, having
been sealed since July 1993. Accordingly, I am going to affirm
the citation, but reduce the civil penalty to $1000.
Inspector Dingess. issued Citation No. 3829473 because he
found that the roof in the No. 3 entry was not adequately
supported in that draw rock had fallen out around the conventional roof bolts, resulting in a 12 foot by 20 foot area being
unsupported. · The inspector testified that there was draw rock
laying against the rib where the continuous miner had pushed or

1080

cleaned it up., _and that roof bolts were hanging down approximately 12 inches from the mine roof. The draw rock in this area
ranged from 2 to 18 inches thick, and the mine roof was popping
and cracking because they had just pulled a pillar in the area
close to this one at the time of the inspector's visit.
The inspector opined that this violation was "significant
and substantial" because of the presence of draw rock in the
unsupported roof and the fact that miners were required to travel
through this area to get to their work place. He stated that in
his experience, miners had been killed by roof falls involving no
more than 3 or 4 inches of draw rock while traveling in areas
which had not been adequately supported.
The operator does not contest the proposed finding that
Citation No. 3829473 recites a "significant and substantial"
violation of the cited standard, and I accordingly find 'it to be
such. The citation will therefore be affirmed. I further find
that this citation involved circumstances where a potentially
life-threatening situation existed and I therefore consider it a
serious violation.
Turning once again to the civil penalty, I find the
Secretary's proposed assessment of $2500 to be excessive under
all the circumstances presented in this case. This operator is a
medium-sized one and this particular mine has been shut down and
sealed since July 1993. Accordingly, taking into consideration
all of the statutory criteria contained in section llO(i) of the
Act, I find that a civil penalty of $1600 is appropriate,
reasonable, and in the public interest.
ORDER
1. Section 104(a) Citation No. 3829472 IS AFFIRMED.
Respondent is directed to pay a civil penalty of $1000 for the
violation found.
2. Section 104(a) Citation No. 3829473 IS AFFIRMED.
Respondent is directed to pay a civil penalty of $1600 for the
violation found.
3. Respondent is ORDERED TO PAY the above civil penalties
($2600) within 30 days of the date of this decision.

Law Judge·

1081

Distribution:
Donna E. Sonner, Esq., Office of the Solicitor, u. s. Department
of Labor, 2002 Richard Jones Road, suite B~201, Nashville, TN
37215 (Certified Mail)
David J . Partin, Engineer, RB Coal Company, Inc., HC 61, Box 610,
Pathfork, KY 40863 (Certified Mail)
dcp

1082

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

MAY 1 2 199..4
NEW WARWICK MIN-ING COMPANY,
Contestant

v.

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

. CONTEST PROCEEDING
.
Docket No. PENN 93-199-R
. Order
No. 3658608; 2/25/93
.
. Mine ID 36-02374
.
: CIVIL PENALTY PROCEEDING
:

v.

Docket No. PENN 93-308
A.C. No. 36-02374-03863
Warwick Mine

NEW WARWICK MINING COMPANY
Respondent

DECISION
Appearances:

Mark v. Swirsky, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelpia,
Pennsylvania, for the Petitioner;
Joseph A. Yuhas, Esq., Barnesboro, Pennsylvania,
for Respondent.

Before:

Judge Amchan
Oyerview of the Case

On February 8, 9, and 10, 1993, at its Warwick mine in
Greene County, Pennsylvania, New Warwick Mining Company took its
bimonthly respirable dust samples underneath the face shield of
RACAL airstream helmets worn by its employees working on the
longwall section of the mine. The RACAL airstream helmet is a
power air-purified respirator.
On February 25, 1993, MSHA issued New Warwick Order
No. 3658608 alleging a violation of section 104(d}(l) of the Act
and 30 C.F.R. S 70.207(a} for sampling inside the RACAL helmet.
The unwarrantable failure allegation of the order was based on
conversations between Rod Rodavich, the mine•s safety director,
and MSHA personnel about taking such samples which occurred prior
to the sampling. Subsequent to the commencement of litigation
before the Commission, the Secretary amended the order to allege
also that the samples were taken with a sampling device that was
1083

unapproved ·d ue to modifications made by Mr. Rodavich.
civil penalty was proposed by the Secretary.

An

$800

For the reasons stated below, I affirm the 104(d) Ci> order
with regard to sampling inside the RACAL helmet. I also find a
violation of the Act with regard to the use of a modified nonapproved sampling device . However, I find that the use of such
device did not constitute an unwarrantable failure to comply with
the Act, as dia-sampling underneath the helmet. I assess a $500
civil penalty. ·
Statement of Facts
On January 15, 1993, Rod Rodavich, the safety director at
the Warwick Mine, attended a meeting of company safety directors
in Western Pennsylvania, at which he inquired as to whether
respirable dust sampling could be conducted underneath the RACAL
airstream helmet (Tr. 203}. After the meeting Rodavich and Gary
Klinefelter, another safety director, stopped at the MSHA Field
Office in Waynesburg, Pennsylvania, seeking to discuss the matter
with Thomas Light, the supervisory coal mine inspector in that
office who had responsibility for the Warwick mine (Tr. 74, 204,
250).
Mr. Light was unavailable and, therefore, Rodavich and
Klinefelter spoke instead with Robert Newhouse, a field office
supervisor (Tr . 114, 204). Newhouse told the two safety
directors that samples taken inside a respirator had not been
acceptable to MSHA in the past , but when pressed by Rodavich and
Klinefelter for a specific regulation that forbid this practice,
Newhouse was unable to cite one (Tr. 117-118, 204). 1
Sometime later in January 1993, Mr. Rodavich also discussed
the issue of sampling inside the RACAL helmet with MSHA Inspector
William Wilson (Tr. 14-15, 229-231). Like Mr. Newhouse,
Mr . Wilson was unable to point to a specific regulation that
would be violated by such sampling (Tr. 15) • ·However, he did

1

Mr. Rodavich's account of his conversation with Newhouse is
that Newhouse said nothing other than he couldn't find anything
prohibiting sampling inside the respirator (Tr . 235-238). While
I find it unnecessary to resolve all the differences in the
testimony of the two men, I find that Mr . Newhouse did indicate
that such sampling was not permitted by MSHA and that he gave no
indication that the agency would consider samples taken inside
the RACAL as complying with the Act (Tr. 117-119).

1 084

indicate to Mr. Rodavich that sampling inside the RACAL helmet
was not acceptable to MSHA (Tr. 15) . 2
·
On February s, 1993, Supervisory Inspector Light accompanied
Inspector Wilson to the Warwick mine (Tr. 79). Light and Wilson
began their inspection by going to Mr. Rodavich's office. While
they were in his office Mr. Rodavich again raised the question of
respiratory dus~ sampling inside the RACAL helmet. Light told
Rodavich that such samples were against MSHA policy and that he
would be cited if he took such samples for compliance purposes.
Like Mr. Newhouse and Mr. Wilson, Light was unable to
specify the regulation for which the citation would be issued.
However, he did tell Rodavich that the MSHA regulations require
sampling in the mine atmosphere and that samples taken underneath
the RACAL helmet were not samples taken in the mine atmosphere
(Tr. 79-80, 104). 3 Inspector Light also suggested that Rodavich
read the preamble to MSHA's Part 70 regulations (Tr. 80-81).
On February 8, 9, and 10, 1993, pursuant to Mr. Rodavich's
directions, sampling was conducted by Respondent of the
respirable dust exposure of the longwall shear operator on the
tailgate side (Tr. 23, G-8). These samples were collected
underneath the visor of the RACAL airstream helmet worn by the
operator (Jt. Exh. 1, p. 3, stipulations 11 and 12, Exh. G-15,
Production number 5). Although Mr. Radovich had informed MSHA
personnel that he intended to take such samples unless. they were
able to point him to the regulation that forbid them, he did not

2

While Mr. Wilson and Mr. Radovich disagree as to what was
said in this conversation, I find that Mr. Wilson did, in some
manner, communicate that Radovich's proposed sampling method was
unacceptable to MSHA. There is nothing in the record to indicate
that he said anything that would have led Radovich to believe
that such sampling would comply with the Act. As it is clear
from the record that the subject was discussed, I find it very
unlikely that Mr. Wilson did not offer an opinion as to the
legality or acceptability of sampling inside the RACAL helmet and
I find it very unlikely that he did not indicate some manner of
disapproval (Tr. 15-16, 230-231).
3

Mr. Rodavich concedes that Light told him such sampling
would be against MSHA policy {Tr. 220, 229). Although his
testimony as to whether Light also said he would be cited is
somewhat confusing (Tr. 220, 232-233), I find that Light
specifically told Rodavich that he would get a citation and that
sampling underneath the RACAL did not constitute sampling of the
mine atmosphere (Tr. 104). Mr . Rodavich was also advised by
Respondent's attorney that he would probably be cited if he
sampled underneath the airstream helmet (Tr . 232-233).

1 085

advise any representative of MSHA that the sampling would be done
on February 8-10 (Tr. 42, 80-81, 120, 228 ,· 234, 24 7, 249} .
In taking the samples, Mr . Radovich modified the sampling
mechanism from that which he normally used so that it would fit
inside the RACAL helmet. These modifications rendered invalid
the approval given by the National Institute for Occupational
Safety and Health (NIOSH} for both the sampling device and the
RACAL helmet . (Tr. 132-133, Exh. G-11) .
These modifications most likely resulted in the collection
of less respirable dust than if an approved sampling assembly had
been used (Tr. 157-160). Among the more significant differences
between the device used by Respondent and an approved sampling
device were the absence of a locking bracket which rigidly aligns
and holds the major components of the sampling head (Tr . ... 138139).
Another was the addition to the sampling device of
14 inches of tubing which was bent inside the top of the helmet
(Tr. 141-142, Exh. G-15, production 5) . The bent tubing and
other modifications would tend to result in some of the
respirable dust adhering to the walls of the tubing, instead of
reaching the sampling cassette (Tr. 143).
The cassette is also likely to pick up less dust than that
to which the sampled miner is exposed because it will pick up
only that dust which is exhaled by the miner. It will not pick
up the dust which sticks to his lungs when inhaled (Tr. 159-160).
A few days after the sampling was completed , MSHA inspector
Wilson observed carbon copies of the dust data cards (Tr . 21-22).
Because he suspected that these samples had been taken inside the
RACAL helmet, Wilson wrote the numbers of the samples down . He
then asked his supervisor Thomas Light to ask the MSHA laboratory
in Pittsburgh for the results of the sampling (Tr. 25-26) .
About a week later, Light informed Wilson of the results of
the samples. The highest respirable dust reading was
0.5 milligrams (Tr. 33, Exh. G-9) . Since these results were less
than half what one would expect for a longwall shear operator at
the levels of coal production recorded, Wilson's suspicion that
the samples had been taken inside the helmet increased (Tr. 27).
on February 22, 1993, Wilson was informed by a nonsupervisory employee at the mine that the samples had been taken
underneath the airstream helmet (Tr. 28-29). This was confirmed
by Safety Director Radovich on February 23 (Tr. 28-30).
Therefore, on . February 25, 1993, MSHA issued Respondent order

1086

3658608 alleging that it violated section 70 . 207(a) in sampling
inside the RACAL helmet. 4
on February 24, 1993, MSHA conducted its own sampling, with
the filter cassette placed outside the RACAL helmet. The result
of this sampling, which was reported several days later, was in
excess of the permissible exposure limit of 2.0 milligrams
per cubic meter (Tr. 32-34). The highest full-shift sample
measured an exposure of 4.4 milligrams (Tr. 33, Exh. G-2, p. 3,
G-8, p. 9).
MSHA then modified the section 104(d)(l) order at issue in
this case to prohibit operation of the longwall shear until
environmental dust control steps were taken which reduced the
respirable dust concentrations sampled to levels below the
2.0 limit (Exh. G-2). New Warwick was able to reduce respirable
dust levels below 2 . 0 mg/m3 and, thus, the order was terminated
on April 7, 1993 (Exh G-2, p. 8). Months after the commencement
of this litigation order number 3658608 was amended to also
allege a violation for Respondent's use of an unapproved sampling
device.
Conclusions
Respondent's use of an unapproved sampling device violated
30 C.F . R. § 70.207(a}
Even if MSHA regulations did not prohibit respirable dust
sampling underneath the RACAL helmet, Respondent's samples in
this case violated section 70 . 207(a) because they were not taken
with an approved sampling device. Section 70.207(a) requires an
operator to take 5 "valid respirable dust samples" from the
designated occupation in each bi-monthly sampling period. A
"valid respirable dust sample" is defined in section 70.2(p) as
one collected and submitted as required by part 70 of the Code of
Federal Regulations. "Respirable dust" is defined in 70.2(n) as
dust collected with a sampling device that has been approved in
accordance with 30 C.F.R. Part 74 .
Respondent concedes the modifications made to the dust
sampling device by Mr. Rodavich rendered the approval of the
device invalid (Respondent's brief, page 8). However, it
contends that it had insufficient notice of this fact to sustain
a violation of 30 C.F.R. § 70.207. Although one must read
through several regulations to ascertain what is required
regarding sampling devices, MSHA's regulations make it abundantly
clear that sampling with a modified sampling unit, which has not
4The immediate predicate for the section 104(d)(l) order in
this case was a 104(d)(l) order issued on January 25, 1993
(Exh. G-6).

1 087

been approved by the National Institute for occupational Safety
and Health (NIOSH), violates 30 C.F.R. § 70 . 207(a).
Section 74.10 requires an applicant, normally the
manufacturer of the sampling device, to obtain the approval of
NIOSH for a change to any feature of a certified coal mine
sampling device. Therefore, I conclude that a person of ordinary
intelligence who has read through MSHA's regulations pertaining
to respirable - dust sampling had a reasonable opportunity to
ascertain that sampling with a modified sampling device violates
section 70.207(a), if the modification had not been approved by
NIOSH.
None of the MSHA personnel with whom Mr. Rodavich discussed
his proposal to sample underneath the RACAL helmet, including
Inspector Wilson, to whom he showed a prototype of the·· device he
used, informed Respondentis safety director of the fact that use
of the device would violate the Act unless the modified device
was approved by NIOSH. Moreover, MSHA apparently did not
recognize that the use of the device violated its regulations
until the discovery phase of this litigation .
These factors are appropriately considered in assessing
the degree of negligence exhibited by Mr. Rodavich and the
appropriate civil penalty, not in determining whether the
regulation was violated. In view of the circumstances, I

conclude that the degree of negligence on the part of
Mr. Rodavich, in using an unapproved sampling device, was
infinitesimal and worthy of a nominal penalty at best. However,
as discussed later herein, I view the degree of negligence in
proceeding with sampling underneath the RACAL helmet to be an
entirely different question.
Respondent violated section 70.207 in taking respirable dust
samples underneath the face shield of the RACAL airstream helmet
Although nothing in MSHA's regulations specifically states
that an operator may not take respiratory dust samples underneath
a RACAL helmet or other respirator, the practice is clearly
prohibited by subpart A - D of 30 c.F.R. Part 70 when these
regulations are considered in their totality. Section 70.lOO(a)
requires each operator to maintain the average concentration of
respirable dust, in the mine atmosphere, at or below
2.0 milligrams of respirable dust per cubic meter of air.
The sampling required by subpart C (30 C.F.R. S 70.20170.220) is required to determine whether the operator is in
compliance with section 70 . lOO(a). If an operator's samples
provide no basis for determining compliance with S 70.lOO(a),
they cannot be considered to be valid respirable dust samples
within the meaning of§ 70.2(p) or§ 70.207(a).

1088

More specifically, the issue is whether a sample taken
underneath a '"respirator can be considered a sample taken "in the
mine atmosphere." If the answer is affirmative, then a reading
below 2.0 mg/m3 satisfies the requirements of section 70.lOO(a).
MSHA's regulations regarding respiratory equipment make it clear
that a sample taken underneath a respirator cannot establish
compliance with 70.lOO(a} and also that such samples cannot
comply with 70.207 .
Section 10.ioo provides that respiratory equipment shall be
made available to persons exposed to respirable dust in excess of
the levels required to be maintained in 30 C.F.R. Part 70 . That
regulation also states," (u)se of respirators shall not be
substituted for environmental control measures in the active
workings."
This provision makes it clear that an operator
cannot comply with 70.lOO(a) by having miners use a respiratory
device . It also makes it clear by implication that one cannot
determine compliance with section 70.100 by sampling underneath a
respirator.
An indication of what the regulations require is provided by
the preamble to MSHA's regulations regarding respirable dust
which appeared in the Federal Register when they were promulgated
as a final rule in April, 1980. The agency addressed the issue
of use of the airstream helmet as a substitute for engineering
controls to achieve compliance with 2.0 mg/m3 standard.

During the course of the public hearings, MSHA was
urged to accept the use of a particular type of
personal protective device as a means of compliance
with the respirable dust standard in certain longwall
mining operations. It was argued that, in these
operations, it has not been proven feasible at this
time to institute engineering controls adequate to
reduce dust to within permissible concentrations
without substantially impairing coal production. MSHA
has begun a careful study of the device--known as the
"airstream helmet"--to determine its potential
usefulness under very limited circumstances . It is
currently being field tested under close MSHA scrutiny
in a coal mine in New Mexico. Until testing is
completed and the results evaluated, MSHA will continue
to require implementation of engineering controls in
coal mines as the means of achieving compliance with
the applicable dust standard . 45 Fed. Reg. 23993
(April 8, 1980)
While there is nothing in the record that indicates the
results of the test performed on the airstream helmet in
New Mexico, the record does establish that MSHA policy with
regard to the substitution of the airstream helmet for
environmental controls has not changed (Tr. 177-187, Exh. G-19).

1089

As deference. is due to MSHA' s interpretation of its own
regulation, -I conclude that section 70 . lOO(a) precludes
compliance with the 2 . 0 mg/m3 respirable dust limit through use
of the airstream helmet Secretary of Labor v. Western Fuels-Utah,
900 F.2d 318 (D. c. Dir . 1990) . This being the case, it would be
patently illogical to conclude that one can sample to determine
compliance with 70.lOO(a) by placing the sampling cassette
underneath the airstream helmet.
Respondent -contends that it had inadequate notice of the
requirements of ·the 70.207(a). I find the notice provided is not
inadequate simply because one must read a number of related
sections of MSHA's regulations to determine the illegality of
sampling inside the RACAL helmet. Moreover, additional notice
was provided in the above cited portion of the Federal Register.
The fact that MSHA personnel could not point Mr. Rodavich to
the precise provision prohibiting his proposed sampling technique
does not establish that the regulations are impermissibly vague.
Indeed, Mr. Light's response that the regulations require
sampling of the mine atmosphere was in large part a satisfactory
response to Respondent's inquiry. A more formal inquiry may well
have elicited from MSHA a fuller explanation as to why the Agency
does not regard sampling underneath a respirator to be sampling
of the mine atmosphere.
Respondent's respirable dust sampling of February 8-10. 1993.
constitutes an unwarrantable failure to comply with 30 C.F . R.
S 70.207Cal
The Commission has held that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence by
a mine operator in relation to a violation of the Act. Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December, 1987); Youghiogheny
& Ohio coal Co., 9 FMSHRC 2007, 2010 (December 1987) . In this
case Respondent's violative act was not negligent, it was
intentional. Mr. Rodavich did not accidently sample underneath
the airstream helmet, he did so purposely. Intentional
noncompliance in the absence of adequate mitigating circumstances
constitutes unwarrantable failure Rochester & Pittsburgh Coal
Company, 13 FMSHRC 189 (February 1991).
Respondent contends that Safety Director Rodavich's conduct
does not constitute unwarrantable failure despite the fact that
he conducted this sampling after being told by Inspectors Wilson,
Newhouse, and Light that it was contrary to MSHA policy. Whether
Respondent's conduct was "aggravated" or "unwarrantable" turns on
the reasonableness of Mr. Rodavich's conduct.
The first reason for Respondent's contention that its
violation was not an "unwarrantable failure" is that Mr. Rodavich
did not get a satisfactory response from MSHA to his inquiries.

1090

More specifically, the argument implies that because MSHA
personnel could not specify which regulation his sampling would
violate, Respondent was entitled to sample underneath the
airstream helmet. I find, however, that Mr. Rodavich's conduct
was highly unreasonable under the circumstances .
Mr. Rodavich was aware that his proposed sampling technique
was a major departure from conventional practice (Tr. 217-218).
Further, nothing in this record indicates that he followed up on
Mr. Light's suggestion that he read the preamble to Part 70.
Given this and the fact that three different inspectors told him
that his proposal would not comply with MSHA policy, I find that
Mr . Rodavich was under an obligation to proceed further with his
inquiries before unilaterally deciding to conduct sampling
underneath the RACAL helmet.
I conclude that Mr. Rodavich did not act reasonably in
proceeding without contacting MSHA's District Office as he had on
other matters (Tr . 243). When an operator ·essentially desires to
"reinvent the wheel" on a matter as important as respirable dust
sampling, I find that it is under an obligation to provide MSHA
with an opportunity to focus on the issues involved and provide a
comprehensive explanation as to why the operator's proposed
departure from common practice and MSHA policy is or is not
consistent with the Act and its regulations.
Had Mr. Rodavich proceeded up the MSHA hierarchy , he may
well have received a satisfactory explanation, including a more
specific reference to the April 1980 preamble . He may also have
been apprised of the inconsistency of the proposed method of
sampling with the designated occupation concept inherent in the
MSHA sampling scheme (Tr. 181-182) 5 • It was not at all
reasonable for Rodavich to proceed simply because the local MSHA
inspectors could not instantaneously cite persuasive authority
for their position .
The second major reason for which Respondent contends that
its conduct does not constitute an "unwarrantable failure" is the
fact that Mr. Rodavich had informed several MSHA inspectors and
the union safety committee (Tr. 206) of his intention to sample
inside the airstream helmet. Respondent thus contends that its
safety director was obviously not trying to hide anything from
5

An obvious shortcoming of Respondent's sampling is that it
gave no indication of the respirable dust exposure of employees
working in the longwall operation who were not sampled. For
example, the sampling inside the helmet of the shear operator
provides no basis for determining the respirable dust exposure of
the section foreman, who spends close to 65% of his time near the
shear operator and who was not wearing an airstream helmet
(Tr. 241-242) .

1091

the agency .~Pd cannot, therefore, be deemed to have unwarrantably
failed to comply with the regulation.
I have no reason to believe that Mr . Rodavich was trying to
conceal his sampling by failing to inform MSHA as to the exact
dates on which it would occur. However, I conclude that by
proceeding with this sampling and submitting it as Respondent's
bimonthly sample _for the January-February 1993 period, his
conduct was sufiiciently aggravated to constitute an
" unwarrantable failure . "
The result of proceeding as Mr. Rodavich did is that
New Warwick submitted no valid respirable dust sample for the
January-February sampling period. Although it may be fortuitous,
the valid samples taken by MSHA did, indeed, indicate significant
overexposure. By taking the invalid samples after havi~g been
told that MSHA would not accept them, Mr. Rodavich delayed the
corrective action required to reduce atmospheric dust.
The better course, and the only prudent way to test his
theories of dust sampling, would have been for Mr. Rodavich to
take his samples and immediately follow them with samples taken
in accordance with MSHA policy. He could then have tested the
validitl of his sampling method without compromising employee
health.
In conclusion, given the factual circumstances of this case,
I find Respondent's submission of respirable dust samples taken
inside the RACAL airstream helmet as its only bimonthly sample
for the longwall operation to be an unwarrantable failure to
comply with the provisions of section 70 . 207(a).
Assessment of the Civil Penalty
Considering the factors specified in section llO(i) of the
Act I assess a $500 civil penalty for Respondent's violation of
section 70.207(a) in taking its bimonthly respirable dust sample
inside the RACAL airstream helmet. For the reasons set forth in
finding the violation to be an unwarrantable failure, I find
Respondent's negligence to be very high. I also find the gravity
of the violation to be high, given the fact that the sampling
6

Although this violation was cited as a non-significant and
substantial violation because the shear operator was wearing a
RACAL helmet, the standard assumes that employee health is not
adequately protected by any respirator, if respirable dust in the
mine atmosphere exceeds 2.0 mg/m3. Moreover, given the fact that
the section foreman was not wearing the airstream helmet, one
could consider MSHA's characterization of the violation as nonsignificant and substantial to be somewhat generous to
Respondent.

1 092

provided no basis for determining the exposure of the section
foremen, who were not wearing a positive pressure respirator. 7
The parties have stipulated that payment of the proposed
penalty will not affect the operator's ability to continue in
business and that New Warwick demonstrated good faith in abating
the order. A $500 penalty is also appropriate given Respondent's
size and history- of prior violations (Jt . Exh. 1,
stipulations ·6 -9) •
ORDER
Order number 3658608 is affirmed and a civil penalty of $500
is assessed. Respondent is ordered to pay said penalty within
30 days of this decision.

Q_
Arth r J. Amchan
Administrative Law Judge
Distribution:
Mark v. Swirsky, Esq., Office of the Solicitor, U.S. Department
of Labor, 14480 Gateway Bldg., 3535 Market st., Philadelphia, PA
19104 (Certified Mail}
Joseph A. Yuhas, Esq., 1809 Chestnut Ave., P.
Barnesboro, PA 15714 (Certified Mail}

o. Box 25,

/jf

70n

February s-10, 1993, Section Foremen Kevin Friday and
Paul Wells wore the Dustfoe 88, a negative pressure respirator
(Exh. G-13, p. 3, Responses to interrogatories 3 and 4).

1093

FBDBRAL llJllB .SUBTY AID> BBALTll RBVJ:BW COlllllSSJ:OIJ
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

May 13, 1994
RANDALL PATSY

I

.

Complainant

v.
BIG "B" MINING COMPANY,
Respondent

. DISCRIMINATION PROCEEDING
.. Docket No. PENN 94-132-D
. PITT CD 93-27

ORDER OF DISMISSAL

Before:

Judge Feldman

on February 24, 1994, I issued a Prehearing Order in the
above captioned discrimination proceeding requesting the parties
to summarize their expected legal arguments on or before
March 18, 1994. The alleged protected activity apparently
concerns an incident that occurred on or about October 23, 1992,
associated with the preparation of a trailer site in the Peter
Rabbit Campgrounds. This matter was investigated by the Mine
Safety and Health Administration (MSHA). As a result of its
investigation, MSHA concluded, citing the Commission's decision
in Cyprus Empire Corporation, 15 FMSHRC 10, 13 (January 1993),
that the complainant was not a "miner" as defined by Section 3(g)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 802(g), at the time of the alleged discharge because he was not
working in a mine. consequently, MSHA determined it does not
have jurisdiction over the campground job site.
The complainant responded to the Prehearing Order on
April 11, 1994. In his response, the complainant expressed
doubts about whether or not he had a "good case." He also
indicated that there may be " ••• no sense o'f pursuing this any
farther (sic)." In view of the equivocal nature of the
complainant's response, on April 14, 1994, I issued an Order
setting this case for trial on June 7, 1994, and ordering Patsy
to show cause why this matter should not be dismissed by
requesting Patsy to unequivocally state whether he wished to
pursue his complaint.
Patsy responded on May 4, 1994, indicating that "I feel I
would be better off to pursue this as a civil suit locally."
I construe Patsy's response as an indication on the part of the
complainant that he no longer wishes to pursue this matter.

1094

Accordingiy, the discrimination comp~aint filed by Randall
Patsy in this docket proceeding IS DISMISSED with prejudice.
Consequently, the hearing of this case scheduled for June 7,
1994, in the vicinity of Butler, Pennsylvania is canceled.

/} s:9 ~ --...,

~.;:::;,d
Feldman
Administrative Law Judge
Distribution:
Mr. Randall Patsy, R.D. #1, Box 290, E. Brady, PA 16028
Ms. Susan Mackalica, Big "B" Mining Co., Inc., R.D. 1, West
Sunbury, PA 16061

/11

1095

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

\fAY 1 3 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

SOUTHERN OHIO COAL COMPANY,
Respondent

:

. CIVIL PENALTY PROCEEDING
: Docket No. LAKE 93-233
No. 33-01173-04015
.:
.. Meigs No. 2 Mine
.
A~c .

DECISION
Appearances:

Maureen M. Cafferkey, Esq., Office of the
Solicitor, U.S. Department of Labor, Cleveland,
Ohio, for the Petitioner;
David M. Cohen, Esq., American Power
Service Corporation, Lancaster, Ohio,
for the Respondent .

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the
petitioner against the respondent pursuant to section llO{a) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
S 820(a), seeking a civil penalty assessment in the amount of $50
for an alleged violation of mandatory respirable dust standard
30 C. F.R. S 10.101. The respondent filed a timely answer
contesting the alleged violation, ahd a hearing was held in
Columbus, Ohio. The parties filed posthearing arguments, and I
have considered them in my adjudication of this matter.
Issues
The issues presented in this proceeding are {l) whether the
respondent vio_lated the cited standard as alleged in the proposal
for assessment of civil penalty and (2) the appropriate civil
penalty that should be assessed for the violation based upon the
civil penalty assessment criteria found in section llO{i) of the
Act. Additional issues raised by the parties are identified and
disposed of in the course of this decision.

1096

Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of
1977; Pub. L. 95-164, 30 U.S.C. S 801 ~ ~·

2.

Section llO(i) of the 1977 Act, 30 u.s.c .
s a20(i) .

3.

30 C. F.R . S 70.101 .

4.

Commission Rules, 29· C. F.R. S 2700 . l

~

seg.

Stipulations
The parties stipulated to the following (Tr. 5-6. ) :
1.

The Commission has jurisdiction in this matter.

2.

The respondent is a large mine operator and the Meigs
No. 2 Mine is subject to the Mine Act.

3.

On August 12, 1992, the Mine Safety and Health
Administration ("MSHA") collected samples during one
shift at the Meigs No. 2 Mine 4 South Longwall
Section, MMU 023-0. Based upon five face occupational
samples, the average concentration of respirable dust
was 0 . 8 milligrams per cubic meter of air (Joint
Exhibit 1).

4.

By a Notice of Option to Submit dated August 20, 1992,
MSHA notified SOCCO that, based upon the one sample of
August 12, 1992, from the shearer operator, the
designated occupation, the quartz percentage was 22%.
The Notice provided that socco may submit an additional
sample for quartz analysis (Joint Exhibit 2).

5.

By a September 17, 1992, notice, MSHA notified socco
that the quartz percentage in SOCCO's submitted sample
was 10% and that socco had the option of submitting a
second sample for quartz analysis, (Joint Exhibit 3).

6.

By an October 6, 1992 notice, MSHA notified socco that
the quartz percentage in socco•s submitted second
sample was 10% and that the new respirable dust
standard was 0.8 milligrams per cubic meter of air,
· (Joint Exhibit 4).

7.

By a report dated January 13, 1993, American Electric
Power Serv.i ce Corp. Environmental Laboratory determined
that there was 4.38% silica, i.e. quartz, in a sample
submitted by SOCCO's Meigs Mine No. 2 (Joint Exhibit 5)

1097

8.

By a lette~ from James F. Tompkins, Vice
President/General Manager of socco, to Ronald L.
Keaton, · District Manager of MSHA, dated January 15,
1993, SOCCO's Meigs Mine No. 2 requested a Repeat
Respirable Dust Survey based on an in-house
determination of a significant reduction of quartz
(Joint Exhibit 6).

9.

During _a January 26, 1993 inspection of the Meigs No. 2
Mine, MSHA Inspector Thomas Zirkle was informed that
the Mine had requested a quartz technical inspection.

10.

On February 8, 1993, MSHA collected samples during one
shift at the Meigs No. 2 mine 4 South Longwall Section,
MMU 023-0. Based upon five face occupational samples
the average concentration of respirable dust wa~ .
1.0 milligrams per cubic met.e r of air (Joint
Exhibit 7).

11 .

On February 18, 1993, MSHA issued Citation No. 3540906
alleging that five valid respirable dust samples
collected during an MSHA inspection of February a,
1993, showed the average concentration of the section
average was 1.0 milligram per cubic meter, which
exceeded the allowable standard of 0.8 milligram per
cubic meter in the MMU 023-0, 4 South longwall section
(Joint Exhibit 8).

12.

By a Notice of Option to Submit dated February 19,
1993, MSHA notified socco that, based upon the one
sample of February 8, 1993, from the shearer operator the designed occupation - the quartz percentage was 2%
and the operator was afforded the option to submit a
sample (Joint Exhibit 9).

13.

On February 26, 1993, socco submitted its first
optional sample. socco was provided the option to
submit a second optional sample, but declined to do so
(Joint Exhibit 11).

14.

By an MSHA Advisory of Termination of Excessive Dust
dated March 4, 1993, MSHA advised socco that the Mine's
abatement samples (which also satisfied bimonthly
sampling) for January - February 1993 had an average
concentration of o.s milligrams of respirable dust per
cubic meter of air, less than the applicable standard
of 0.8, see (Joint Exhibit 10).

15.

On March 8, 1993, the citation was terminated (Joint
Exhibit 8) .

1 09 8

16.

By a Reper~ of Results of Additional Quartz Samples
date«:i March 30, 1993, MSHA notified socco that its
first optional sample contained 5% quartz and that the
sample with the highest percentage was used to
determine the new quartz percentage . The new
respirable dust standard was set at 2.0 milligrams per
cubic meter (Joint Exhibit 11) .

17.

As repo%ted on an MSHA Conference Worksheet concerning
a May 18, 1993, conference, Citation No. 3540906 was
sustained because it complies with current MSHA policy,
but the Citation was modified to non-S&S because the
environment of the miners was only 2% quartz (Joint
Exhibit 12).

The parties further agreed that the violation was timely
abated in good faith, and that it resulted from moderate ·
negligence (Tr . 1 , · 10).
The contested section 104(a) non"S&S" Citation No. 3540906,
issued on February 18, 1993, by MSHA Inspector Thomas Zirkle,
cites an alleged violation of mandatory respirable dust standard
30 C.F.R. S 70 . 101, and the cited condition or practice is
described as follows:
The results of five (5) valid respirable dust samples
collected during an MSHA inspection (Laboratory Report,
dated 2-8-93 attached) show the average concentration
of the section average was 1.0 mg/m3 which exceeds the
allowable standard of 0 . 8 mg/m3 in the MMU 023-0,
4 South Longwall Section.
The mine operator shall take corrective action to lower
the amount of respirable dust and then sample the
longwall occupation 044 Longwall shearer operator
(tailgate end) each production shift until five valid
respirable dust samples are taken and sub~itted to the
MSHA off ice in st. Clairsville, Ohio. The mine
operator shall make available respiratory protection to
all workers in the affected area.
Petitioner's Testimony and Evidence
MSHA Health Specialist Thomas Zirkle, testified that his
duties include taking respirable dust samples at surface and
underground coal mines, and he confirmed that he issued the
citation dated February 18, 1993, and that it was based on dust
samples that he took on the South Longwall MMU 23, (mechanized
mining unit), on February 8, 1993 (Tr. 24). He explained the
procedures that he follows in taking dust samples, including the
information shown on the laboratory reports and occupation codes
associated with his sampling (Tr . 24-28) .

1099

;

Mr. Zirkle stated that during his sampling at the mine he
observed the miners working and operating their equipment, took
air readings, and checked the water sprays to insure that they
complied with the dust control plan, and he explained that the
dust sample cassettes are then weighed and analyzed for quartz by
a lab technician at the MSHA Pittsburgh Laboratory (Tr. 29-30) .

Mr. Zirkle stated that the testing of the five samples that
he took reflected an average concentration of 1.0 milligrams of
respirable dust per cubic meter of air on the cited MMU section
in question. He stated that this exceeded the applicable
standard of .8 , which reflects a reduced respirable dust standard
because of the presence of quartz. He confirmed that he knew
from a review of his mine records and file that the cited MMU
section was on a .8 standard (Tr. 27-28) . He stat~d tbat even
though the respondent exceeded its dust control plan by having
more air velocity and water sprays than required, it still
exceeded the allowable respirable dust standard for the period in
question (Tr . 30) .
Mr. Zirkle stated that when he issued the citation, he was
following MSHA procedures and inspection manual guidelines, and
he confirmed that the respondent was required to comply with the
applicable .8 standard that was in effect on February 8, 1993
(Tr . 31).

On cross-examination, Mr. Zirkle stated that the percentage
of quartz in the mine varies with the roof conditions and
location of stone which produces more quartz (Tr. 32). Referring
to' Joint Exhibits 2 through 4, concerning the quartz sampling
which reflect the 3rd South Longwall Panel as the sampling
location, Mr. Zirkle did not know whether that was the correct
location, or whether it should have referenced the 4 South
Longwall Panel (Tr . 34). Respondent's counsel confirmed that all
of the samples were taken on the 044 occupation, which is the
shearer operator, and he suggested that the notation to the 3rd
South panel is a typographical error, and that the samples
actually apply to the 4 South panel (Tr. 34-35).
The petitioner's counsel confirmed that the three
044 occupation sample results showed the quartz exposure for
the designated occupation. Mr. Zirkle stated that once the
designated occupation is placed on a particular reduced
respirable dust standard because of the presence of quartz, all
of the remaining miners on that MMU are also placed on the same
standard because of their exposure to that same MMU environment
(Tr. 37-40) ·•

Mr. Zirkle confirmed that he was at the mine on January 26,
1993, and that he spoke with safety manager John Merrifield, who
informed him that the respondent had requested MSHA to retest the
mine for quartz on the cited MMU as well as a second longwall.
1100

Mr. Zirkle · -stated that he was not aware of this request before he
spoke to Mr. Merrified (Tr. 43). He next returned to . the mine on
February 8, 1993, took some samples, and then issued the
February 18, citation based on those samples. He confirmed that
the samples reflect the mine conditions on February 8, and not
February 18 (Tr. 44).
Mr. Zirkle stated that he was at the mine on February 8,
partly for the - purpose of determining the quartz conte~t . He
explained that .he first determines compliance with the respirable
dust standard in effect at that time, and after the samples taken
that day are analyzed, a new dust standard based on the new
quartz content is then established. He confirmed that he took
five samples and that the sample for the designated occupation
was used to determine the percentage of quartz. He believed the
samples were taken on the 4 South Longwall panel (Tr. 45).
Mr. Zirkle stated that when the longwall areas were sampled
in August, 1992, as reflected in Joint Exhibits 2 though 4, they
were considered "active workings", and those samples established
the allowable respirable dust limit of 0.8 milligrams that was in
effect on February 8, 1993. However, on February 8, 1993, the
previously sampled August, 1992, areas had been mined out and
were gob areas on February 8, 1993 (Tr. 46-49) . Mr . Zirkle
stated that "anywhere you sample on a longwall today is going to
be gob area tomorrow" (Tr . SO) . He confirmed that but for the
application of MSHA's guidelines, since the February 8 ·, 1993,
samples showed 2 percent quartz, which was less than s percent ,
the allowable respirable dust limit would have been
2;0 milligrams . He stated that although the February 8,
sampling showed 2% quartz and l . O milligrams of respirable dust,
there would still be a violation until the MSHA labatory finished
its analysis of the sample and established the new standard
(Tr. 51).
Mr. Zirkle stated that the actual amount of quartz on the
MMU on February 8, 1993, was irrelevant in determining whether
there was a respirable dust violation that day, and he explained
further at. (Tr. 51-52):
Q.

You just ignore what the percent quartz is on
February 8th?

A.

No, we follow the guidelines to determine the final
analysis so everybody knows what the quartz is .

Q.

So what you are saying is it is not the percent of
quartz that the man is breathing on February 8th, 1993
that determines a violation; to determine a violation

1101

you. look at actually what the last standard was that
was-·set by -MSHA. The actual condi tions of the mine are
immaterial, is that correct?
·
A.

Yeah.

Mr. Zirkle confirmed that regulatory section 70 . 101,
provides that when there is less than 5% quartz, up to
2 . 0 milligrams of respirable dust is allowable. He further
confirmed that his February 8, 1993, samples were taken in the
active workings of the mine, but these were not the same active
working areas sampled in Auqust and September, 1992 (Tr. 53).
Mr. Zirkle agreed that if a miner is breathing 1 . 0 milligram of
respirable dust in an atmosphere of 2% quartz, he is not being
subjected to a health hazard (Tr . 56). He confirmed that his
original "S&S" citation was subsequently modified by MSHA to non"S&S" because of a reduced gravity finding (Tr. 56).
··
Mr . Zirkle confirmed that he also issued a March 1, 1993,
citation for a violation on another MMU (posthearing Exhibit R-1;
Tr. 58) . He explained that the citation was based on samples
submitted by the respondent, and the cited area was on a reduced
.9 milligram standard based on the quartz content, and the
violation was issued because the sample result indicated
1.4 milligrams of respirable dust, which exceeded the
.9 standard. He confirmed that the citation was subsequently
vacated at the direction of his supervisor, and he explained the
reason for this at (Tr. 60-63; Exhibits R-2 through R-4):
A.

I was directed by my supervisor .
It wasn't my choice.

Q.

Let me ask you: Was the standard changed because
shortly thereafter it was determi ned by MSHA that the
quartz percentage had decreased in that particular MMU?

A.

Well, the reason it was vacated is on the -- standard - the new respirable dust standard of 2.0 milligram was
established by the computer during the time the
citation was issued for exceeding the nine-tenths that
-- I was directed to put that on there. That's why -the reason they gave me to do it.

Q.

Okay. So it was basically changed because there was
later a determination that at the time you wrote the
violation the quartz was less than it had previously
had been?

A.

Yes. ·

*

*

*

*

1 1 02

*

That's all I can say.

*

*

Q.

Mr. -Zirkle, I understand that maybe what happened with
the SOCCO Exhibits 1 through 4 ·weren't completely your
doing; can you explain why SOCCO Exhibit 1 was vacated
but the citation in this particular case was not
vacated?

A.

Well, I was told this one was vacated .
was set before the samples were taken .
othe~ case, they wasn't .

Q.

Okay. So you are saying in the case that we're
discussing today, the 2 percent quartz standard wasn't
established at the time the citation was written?

A.

Yeah.

Q.

Even though the reason why it wasn't established
related to the time it took for MSHA to process it, not
due to any fault of the operator; is that correct?

A.

Right.

The standard
But in the

·-

In response to further questions, Mr. Zirkle stated that he
followed MSHA's policy manual in issuing the prior violation in
question, and that the respondent's sample was collected before
the new standard was established. He identified Exhibit P-1, as

the policy in question that he followed in issuing both of the
violations (Tr. 65). He stated that when he conducted his
sampling on February 8, 1993, he did not know the percentage of
quartz in the samples, but once this was determined, he could
have issued a citation anytime after the date of the laboratory
determination which was February 9, 1993 (Tr. 65-67). He
confirmed that the change in the allowable respirable dust
standard for the cited 023 MMU changed from 0 . 8 to 2.0, on
March 30, 1993 {Tr. 68) . He- further confirmed that on most
occasions MSHA considers more than one sample and an operator
is afforded an opportunity to submit samples· (Tr . 67).

Mr . Zirkle confirmed that he could have waited three or four
days before issuing the violation, and had he done so he could
have determined from the February 19 , laboratory analysis that
the quartz percentage for the cited MMU on February 8, was less
than 5%, and the respondent would have been entitled to have up
to 2.0 milligrams of respirable dust per cubic meter of air
(Tr. 71) •
Respondent's counsel asserted that if Mr . Zirkle had waited
until February 20, he would have known the quartz percentage, and
since it was less than 5%, with an allowable respirable dust
limit of 2.0, there would be no violation and he would not have
issued the citation (Tr. 72).

1103

Mr. -zirk·le confirmed that there was no particular time limit
in which to issue the violation (Tr. 73); and he indicated that
"you issue the citation as soon as you can get back to the mine"
(Tr . 70, 73). However, he could not explain the delay in this
case (Tr. 75). He agreed that although the respondent had the
option of submitting additional samples when it was informed that
it was under a 2.0 milligram standard, it would have nothing to
gain by doing so (Tr. 73-74). When asked "if it made sense to
issue a viola~ion on February 8th based upon the quartz that
existed in another area that is gob as of February 8th,"
Mr. Zirkle responded "that's been the procedure for years"
(Tr. 75) .

George Niewiadomski, Mine Safety and Health Specialist,
MSHA, Arlington, Virginia, was qualified and admitted as an
expert in MSHA health regulations and policy (Exhibit ··p-2;
Tr. 77-78). Referring to a document labeled "Coal Mine Health
Inspection Procedures", 89-V-1, February 15, 1989, (Exhibit P-3),
Mr. Niewiadomski stated that MSHA has been adjusting the
applicable respirable dust standard due to high quartz levels
since 1971, when the formula it uses was developed by HEW , and
that section 205 of the Mine Act states that the Secretary shall
apply that formula in his enforcement of Title II of the Act . He
further stated that from 1971 through 1985, the standards were
adjusted based on MSHA single samples, and that in 1985 the
procedures were changed to afford mine operators an opportunity
to participate in the standard-setting process by basing the
standard on one MSHA sample and up to two operator samples . He
stated that "we would never adjust a standard based on a single
sample" (Tr . 82-83) .
With regard to the instant case, Mr. Niewiadomski stated
that the standard was set on October 6, 1992 , when "the average
of one MSHA sample which initiated the whole process" showed that
it contained 22% quartz. No citation was issued on October 6 ,
1992, because at that point in time it was ~ot known what the
standard would be because the respondent was not afforded an
opportunity to submit samples and MSHA did not analyze the
required samples. In response to a notice sent to the
respondent,it submitted its first optional sample, and it showed
10% quartz. Since there was a difference of greater than 2%, the
respondent was afforded an option to submit a second sample, and
all three samples were used to establish the new average quartz
level used to adjust the standard to . 8 milligrams. Pursuant to
MSHA's policy that has been in effect since 1985, once a standard
is established on an entity, such as the MMU 023 in this case,
when that MMU moves to a different part of the mine the standard
(.8 in thi s case) moves with the MMU until such time it is
adjusted (Tr. 83-85).

Mr. Niewiadomski stated that when Inspector Zirkle took the
samples on February 8, 1993, he "only enforced what was in

1104

place" , and..·that the respondent "knew what the standard was and
what we knew and it was aware that he had to comply with the .8"
(Tr . 85) . He further stated that MSHA's procedures and policies
were known by the respondent, that they are available to all
operators, and he believed they are reasonable. He further
stated as follows at (Tr. 86-87):
That policy very clearly states that whenever an
inspector-goes out to do a sampling inspection, whether
it's something that originated in the office or whether.
it was a request made by an operator or by a representative of the miner, the inspector must first determine
whether or not there is a violation of the standard in
place.
Those samples are then subsequently sent to Pittsburgh
for quartz analysis . We analyze all samples that have
sufficient weight gain and by sufficient weight gain I
mean they have at least .5 milligrams of dust on the
filter . All samples are analyzed .
Mr. Niewiadomski further explained the sampling of the MMU
designated occupations, including the 044 and 041 occupations,
and he confirmed that as a result of 5% quartz from the sampling,
the new 2.0 milligram respirable dust standard was established
and became effective on March 30, 1993 (Tr. 88-91). He also
explained MSHA's quartz procedures and policy as reflected in
Exhibits P-3 through P-5 (Tr. 94-100).
Mr . Niewiadomski explained the sequence of events in
connection with the February 8, 1993 citation issued by Inspector
Zirkle. The MSHA laboratory testing report (Joint Exhibit 1),
for the five samples taken on August 12, 1992, reflected an
average concentration of .8 milligrams of respirable dust, and
this was in compliance with the 2.0 milligram standard in place
at that time . Subsequent testing analysis for quartz for one of
the August 12, samples for the designated 044 occupation on the
023 MMU (Longwall Tailgate operator), indicated 22% quartz, and
since this exceeded the 5% threshold, the respondent was informed
on August 20, 1992, that it could submit an optional additional
sample. No citation was issued for the high quartz concentration
at that time because MSHA's procedures required more than one
sample to support a violation, and it was premature to ascertain
what the standard would be for the occupation in question without
additional samples to determine the average quartz level for
that environment (Joint Exhibit 1, Tr. 101-103).
Mr. Niewiadomski stated that on September 17, 1992, MSHA
notified the respondent that the results of the testing of the
previously submitted optional sample of September 11, 1992 , for
the 044 occupation reflected 10% quartz, and since this differed
by more than 2% from the quartz percentage obtained by MSHA's

1105

sampling of .August 12, 1992, the respondent was given a further
opportunity · to ·submlt a second optional sample for quartz
analysis by October 2, 1992 (Joint Exhibit 3; Tr. 103). He
confirmed that at this point in time, the respondent was not
under a reduced standard since the process was still ongoing and
MSHA had to wait until the respondent exercised its option to
submit another sample before calculating the average quartz level
in the designated environment and determining a new standard
(Tr . 104) .
Mr. Niewiadomski stated that the respondent submitted a
second optional sample on September 29, 1992, which reflected a
testing analysis of 10% quartz . As a result of the testing of
the MSHA sample of August 12, 1992, and the two optional samples
taken by the respondent on September 11 and 29, 1992, the

respondent was placed on a new respirable dust standard of
0.8 milligrams for the 023 MMU in question, effective October 6,
1992, and this standard applied to the 023 MMU regardless. of
where it moved to in the mine, and he stated "the standard moves
along with the MMU" (Tr. 105). He confirmed that MSHA did not
require the respondent to comply with the 0 . 8 milligram standard
on the date that it collected its sample (August 12, 1992), nor
would MSHA require the respondent to comply with the 0 . 8 standard
based on its sampling in September, 1992 . He stated that "It's
very clear when an operator is requested to submit optional
samples, those are only going to be used for quartz analysis and
not for making compliance determinations" (Tr . 105).
Mr. Niewiadomski stated that Inspector Zirkle took five
023 MMU samples, including the 004 designated occupation, on
February 8, 1993 (Joint Exhibit 7), and he knew at that time that
the applicable standard for that MMU was still 0 . 8 milligrams .
The calculated sampling average reflected a 1.0 milligram average

concentration of respirable dust, and since this exceeded the
0.8 standard that was still in effect, the Inspector determined
that the respondent -was in violation and issued the citation on
February 18, 1993 (Tr. 106).
Mr. Niewiadomski identified Joint Exhibit G, as the
notification of the results of MSHA's quartz analysis made on
February 19, 1993, for the February 8, 1993, sample and i t
reflects a test result of 2% quartz for the 023 MMU, and afforded
the respondent an opportunity to submit an additional sample by
March 6, 1993 (Tr. 1 07-109). He stated that the respondent could
have opted not to submit an additional sample, and in that case
the standard would have been adjusted automatically based on the
results of MSHA's February 8, 1993 , sampling and it was reported
as 5% quartz (Joint Exhibit 11). Since the difference between
this sample and MSHA's sample was greater than 2%, the respondent
was afforded an opportunity to submit a second sample, but
declined to do so. Under the circumstances, the new standard
was based "on the higher of the two quartz levels, which was

1106

5 percent divided into ten resulting in a 2.0 milligram standard
effective March ~O, 1993" (Tr. 109-110). He confirmed that if
this 2.0 standard had been applied on February 18, 1993, when the
citation was issued, the respondent would have been in compliance
if the standard were in effect on that day (Tr. 110). He further
explained as follows at (Tr. 110-112):
A. - - - - there is no way to tell on February the 8th
whether or not we're going to have 2 percent quartz or
50 percent quartz and so we cannot ascertain
prematurely what the standard is going to be. If in
fact we had waited, we had waited and no enforcement
action was taken, we had waited until the quartz
process was fully completed, we could have had a
standard that was equal to .a or lower or maybe higher,
but if in fact it was lower and no corrective action
was taken, people would have been needlessly
overexposed to excessive levels of quartz.
THE COURT: But in fact that wasn't the case here; was
that correct? Were they in compliance on February the
8th?
THE WITNESS:

No, they were not.

THE COURT: They weren't in compliance with the
standard that was carried forward but were they in
compliance with the actual quartz exposure that was
tested on that day?
THE WITNESS: We would not .make a decision on 2 percent
either . We would not make a decision on one sample.
The process requires the standard to be based on
multiple standards . We would not -- just because we
have 2 percent, we would not adjust the standard based
on that. That was the procedure we used prior to 1985.
THE COURT: I understand that, but logically and
realistically, you really, when you are applying a
standard that's been carried forward, that actually
tested in an environment that's no longer in being, you
really don't know -- what are you accomplishing? Are
you actually testing what the actual exposure was on
the 18th, I mean on the 8th, February the 8th?
·THE WITNESS: We're sampling and we're enforcing, I
mean, we're sampling to determine whether or not the
standard that we know, the standard of record, that the
operator knows that we know whether or not that
standard is being violated. That's all we really know.

1107

THE COuRT: - But ·that standard was based on some other
environment, wasn't it, that's no longer in being?
THE WITNESS :
THE COURT:

It could have been the same environment .
But it isn't.

THE WITNESS: In this particular case, the MMU moved to
another. The standard moves with it .
Mr. Niewiadomski identified Exhibit P-6 as a June 16, 1993,
quartz analysis of a sample taken by the respondent on June 7,
1993, following the 2.0 milligram standard that became effective
on March 30, 1993, and the sample reflected 11% quartz, which
would result in a significantly reduced dust standard . However,
no citation was issued based on the June 7, sample because the
process required additional samples to be used in making a final
determination . The respondent took a second sample on June 28,
1993 , which indicated 13% quartz, and when averaged with the
previous 11% quartz sample, established a new standard of
0.9 milligrams, effective July 2, 1993 (Tr. 116-117).
Mr. Niewiadomski stated that once an inspector takes
samples, the entire process for determining a new standard can
take from three to eight weeks because sufficient time must be
allowed for an operator to collect samples and for the laboratory
analysis to be completed (Tr . 119). He confirmed that the quartz
content of a sample is used to establish the respirable dust
standard because of the hazard associated with silicosis
(Tr. 120).
On cross-examination, Mr . Niewiadomski stated that MSHA
would never automatically establish a respirable dust standard
based on a single quartz analysis unless the operator does not
available itself of the opportunity to file another sample, and
the time for doing so has expired (Tr. 121). He confirmed that
MSHA's policy allows an operator to request a reevaluation of the
standard based on changing mine conditions (Tr. 122). He
confirmed that Joint Exhibit 6, is a letter dated January 15,
1993, from the respondent to MSHA's District Manager, requesting
a reanalysis of quartz based upon changing geological mine
conditions (Tr. 123). He explained that in the instant case, the
inspector "is conducting a sampling inspection and is making a
determination whether the existing standard is being complied
with." Although the respondent believed conditions had changed,
this cannot be verified until the samples are analyzed for
quartz. He agreed that in the instant case the inspection that
was conducted ·after the reevaluation request confirmed that the
conditions had changed because of the quartz reduction, and as
a result of the February 8, samples, the standard was adjusted
as of March 30, after the sampling process was completed
(Tr . 123-126).

1108

In r~~ponse ~o a question as to whether the quartz
percentage of the active mine workings is correlated to the
respirable dust in the active workings as of any particular day,
Mr. Niewiadomski stated as follows at (Tr. 126-127):
A. It is intended to be a long-term standard and in
the quartz situation, that -- because percent of quartz
can vary, then the applicable standard can vary from
time to iime and that stan~ard really doesn't change
and we have recognized that and there's a process in
place to make those adjustments.
Q. But that standard doesn't relate to the active
workings?

A.

Yes, it does.

It relates to the active workings as of the time
the sample was taken but not to the time as to when
MSHA makes a determination as to what the revised
standard is that correct?
·
Q.

A. It would be unrealistic to come up with a standard
every day because basically what you are implying is in
the case of a longwall as Mr. Zirkle -- Inspector
Zirkle indicated, today I'm sampling here. This is my
location. Tomorrow, I'm further along and -- it would
be unrealistic to say we have a fluctuating standard
and no one knows what that standard is . So to provide
the maximum level of protection, we have to come up
with a reasonable process and we feel that's what it
is.

Now I realize that in this particular instance you felt
that the citation was not a valid one. But there are
two other circumstances that I have talked -- that I
have mentioned where in fact there was . a quartz
problem . We did not go back and cite you for violating
that standard.
Mr. Niewiadomski stated that in order for an operator to
develop a sound dust control strategy it must know what the
standard is going to be that it has to comply with. He stated
that section 70.101, states that if there is quartz in the
environment, the dust standard will be reduced and the respondent
would be expected to comply. The standard "doesn't say on what
the quartz percentage was on that very day" (Tr. 129). He stated
further at (Tr. 133-134):

What would have been wrong in this particular
instance with Mr. Zirkle having the authority under
MSHA policy to say based upon the percent quartz and
Q.

1109

the amount of respirable dust in the mine atmosphere on
February··ath, 19.9 3, socco was in compliance and no
violation should be issued?
A. Inspector Zirkle is required to enforce the
applicable st~ndard . The applicable standard was .8
and Inspector Zirkle in fact did enforce that. He
can't -- first of all, he can't make -- ascertain what
the standard would be at the time that he collected
those samples .
But he can establish that prior to issuing the
violation, is that correct?

Q.

A. No, he is required to issue the violation as soon
as a determination is made that the standard has been
violated . Because -- because we need to implement
corrective action immediately so people are not
needlessly overexposed .
Mr. Niewiadomski confirmed that once the respirable dust
standard is established for the MMU, the standard would follow
the MMU, even if it were moved to another mine. He stated that
the geological conditions in the other mine "are probably the
same" . He explained that an evaluation of the environmental
conditions would be done subsequent to the move, and not before,
but that an operator could request a reevaluation if he can
provide evidence that its dust controls warranted such a
reevaluation. However, notwithstanding any reevaluation request,
the inspector must enforce the standard of record (Tr . 135-136).
He further explained as follows at (Tr . 141):
THE WITNESS: I want to clarify something . We have
over a thousand reduced dust standards in place. We do
thousands of quartz analyses, and as far as we know
this policy is well understood and everyone knows that
there are established procedures how a standard is set .
They know exactly how samples are used and they know
exactly what standards are being enforced and we make
it very clear, even in policy, the policy manual, which
was issued back in '88, exactly -- when you have a
reduced dust standard in place , how our samples are
evaluated based on that reduced dust sample because the
operator collects bimonthly samples. He collects
additional samples. He may collect citation samples.
So that's pretty clearly explained which standard
applies when.
Respondent ' s Testimony and Evidence
Stephen Poe, employed by the respondent as a Senior
Geologist, testified that he holds a B.S. Degree in Geoloqy from

1 110

West Virginia University, and has taken graduate courses at Ohio
University. ·ae is ' certified by the American Institute of
Professional Geologists, and has been employed by the respondent
for eleven years. He confirmed that he is familiar with the roof
conditions at the mine in question, and that he has walked the
entries and "mapped the roof rock types, the lithologies and I
also drill core holes". This information will indicate what the
future mining conditions will be with regard to the quartz that
is in the mine a~mosphere (Tr. 147).

Mr. Doe stated that the normal mine roof is limestone, and
that quartz is related to the sandstone systems that are in the
roof above the coal seam.
He confirmed that the respondent
occasionally takes samples of its own to determine the quartz
content in the mine atmosphere. He identified Joint Exhibit s,
as a sample analysis by the respondent's laboratory of the quartz
percentage in the mine atmosphere on January 18, 1993, the date
the sample was taken. The report reflects a 4.38 percent quartz
content (Tr. 148).
on cross-examination, Mr. Doe stated that the sample in
question was received on January 8, 1993, but he did not know
when it was taken. Although Mr. Doe stated that the reports
shows the sample was taken on the "230 South Longwall, tailgate
operator", a handwritten notation on the document shows "237
(South) L/W tail operator" (Joint Exhibit 5, Tr. 149). Although
he indicated that at the time the sample was taken, the mine roof
was limestone and the bottom was sandstone, he confirmed that he
did not take the sample and did not know what dust controls were
in place at that time (Tr. 151).
Discussion
The essential facts in this case are not in dispute. Based
upon five (5) respirable dust samples taken by MSHA on August 12,
1992, in the 4 South Longwall section from Mechanized Mining Unit
(MMU) 023-0, MSHA determined that the average concentration of
respirable dust in that location was 0.8 milligrams per cubic
meter of air. One of the five samples was from the longwall
shearer operator, the "designated occupation" that was determined by the samples to have the greatest respirable dust
concentration. That sample was analyzed for quartz content, and
it was determined that the quartz percentage was 22%.
Pursuant to MSHA policy, the respondent was afforded an
opportunity on August 20, 1992, to submit an additional sample
for quartz analysis, and it did so. The sample was determined to
contain 10% quartz. on September 17, 1992, the respondent was
given the option to take and submit a second sample for quartz
analysis, and it did so. That sample showed 10% quartz content.
Based upon.an average of the three quartz sample percentages and
the application of the formula found in 30 C.F.R. S 70.101, MSHA

1111

established a new respirable dust standard of 0 . 8 milligrams per
cubic_ meter of air, and the respondent was informed of this by an
MSHA notic~ of October 6, 1992 .
Subsequent to MSHA's notification to· the respondent of the
newly established 0.8 standard, the respondent submitted a sample
to its laboratory for analysis and it was determined in a
January 13 , 1993, report that there was 4 . 38% silica (quartz),
in the sample submitted . Thereafter, on January 15, 1993, the
respondent wrote to MSHA's district manager requesting a "Repeat
Respirable Dust Survey" to determine the quartz content in the
active longwal~ section, and this request was based on the
respondent's in-house determination of a significant reduction of
quartz. Inspector Zirkle was informed of this request during a
mine inspection on January 26, 1993 .
In the course of the inspection on February 8, 1993, which
was unrelated to the respondent's request for a dust survey,
Inspector Zirkle collected five face occupational samples during
one shift on the 4 South Longwall section MMU 023-0. The
sampling results showed that the average concentration of
respirable dust was 1.0 milligrams per cubic meter of a i r, which
exceeded the allowable standard of o. a milligrams per cubic meter
of air in the 4 South Longwall Section MMU-023-0 . The analysis
for the sample taken from the shearer operator designated
occupation reflected a quartz percentage of 2%.
On February 18, 1993, Inspector Zirkle issued the disputed
citation based on the results of the five respirable dust samples
that he collected on February 8, and he did so because the sample
results of 1 . 0 milligrams per cubic meter of air exceeded the
existing allowable standard of 0.8 milligrams that was in place
at that time.
Pursuant to section 70.100, the respondent is required to
maintain the average concentration of respirable dust during each
shift to which each miner in the active workings of the mine is
exposed at or below 2.0 milligrams of respirable dust per cubic
meter of air . However, pursuant to section 70.101, if the
respirable dust in the atmosphere of the active workings contains
more than five percent quartz, the respondent is required to
comply with a reduced dust standard computed in accordance with
section 70.101 . In the instant case, the February 8, quartz
sample for the designated occupation reflected two percent
quartz, which was less than the five percent that would
ordinarily trigger a reduced respirable dust standard for
compliance with section 70.101. Under the circumstances, the
respondent believes that it was entitled .to rely on a two percent
respirable dust standard because the quartz content in the
sampled atmosphere was less than five percent.

1112

Even th~ugh the February s, 1993, respirable dust samples
taken by the·- inspector reflected 1.0 milligrams per cubic meter
of air·, which was below the normal 2. o milligram standai;-d, MSHA
refused to vacate the citation and held the respondent to the
0.8 milligram reduced standard and required it to meet that
reduced standard in order to abate the violation.
On February 19, 1993, MSHA notified the respondent of its
option to submit an additional sample for quartz analysis, and it
did so. The respondent subsequently declined an invitation to
submit a second optional sample, an~ on March 4, 1993, MSHA
advised the respondent that its abatement samples had an
average concentration of 0.5 milligrams of respirable dust per
cubic meter of air, less than the applicable standard of
0.8 milligrams, and the citation was terminated on March 8, 1993,
MSHA notified the respondent that its new respirable dust
standard was 2.0 milligrams.
The respondent availed itself of an MSHA citation conference
on May 18, 1993. The violation was sustained "because it
complies with current MSHA policy", but the· "citation was modified
from "S&S" to non-"S&S", because the environment of the miners
was - only 2% quartz.
Petitioner's Arguments
MSHA states that the facts in this case are not in dispute
and that the critical issue is whether or not its policy and
procedure with respect to the application and enforcement of
mandatory standard 30 C.F.R. § 70 . 101, as stated in its Program
Policy Manual, Health Manual, and other memoranda is consistent
with the regulatory language (Exhibits P-1, P-3 through P-5).
MSHA asserts that pursuant to the requirements of
section 205 of the Mine Act, it has applied the appropriate
formula found in section 70.101, to insure the health of coal
miners, by reducing the standards for respirable dust when
excessive levels of quartz are detected in the· atmosphere of any
mine working place, and that it has determined the procedures to
be followed in implementing such a formula, citing American
Mining Congress v. Marshall, 671 F.2d 1251, 1256 (10th Cir.
1982).
MSHA believes that its action in reducing the dust standard
for the cited MMU 023-0 when the mine atmosphere was found to
include greater than 5 percent quartz is reasonable and entirely
consistent with the plain wording of both the standard and the
Mine Act. MSHA maintains that it must apply section 70.101, in a
realistic setting, and must formulate a policy and procedure
which can be complied with and enforced. To do this, MSHA
concludes that it must establish a standard which is known to the
respondent so it may establish dust controls and a dust control

111 3

mine atmosphere supports its position. MSHA points out that in
this case it is undisputed that the o. a milligram dust standard
applicable to MMU 023-0 was established on October 6, 1993, on
the basis of an MSHA dust sample that had a quartz content of 22
percent {collected on August 12, 1992) and two operator optional
samples that had a quartz content of 10 percent each (collected
on September 11, 1992 and September 29, 1992, respectively) .
Accordingly, MSHA concludes that its action in reducing the dust
standard for MMU 023-0 "when" the mine atmosphere was found to
include greater than 5 percent quartz is entirely consistent with
the plain wording of both the standard at issue and the Mine Act.
Further, as previously argued, MSHA believes that interpreting
"active workings" as following the MMU is reasonable and entirely
consistent with the regulation and the Act .
In response to the respondent's argument that neither the
inspector nor MSHA's conference officer thought the 2 . 0 quartz
atmosphere on February s, 1993, presented a health hazard to
miners, MSHA asserts that what these individuals thought is
irrelevant and that they were not qualified to give an opinion as
to the health consequences of exposure to quartz. Although MSHA
maintains that the classification of the violation was wrongly
changed from S&S to non-S&S, it does not believe this is relevant
because the S&S classification is not an issue in this case .
MSHA also believes that the violation issued by Inspector Zirkle
in March, 1993, is also irrelevant.
In response to the respondent's argument that MSHA should
have sampled in response to its January 15, 1993, request, and
that it was unfair to cite it when it requests a resurvey, MSHA
asserts that it did not have the resources to resurvey at the
time it was requested, and that its policy clearly states that
even in a resurvey the inspector will first determine compliance
with the applicable standard of record. MSHA believes this is
fair because that standard of record is known by the operator and
the operator is aware that it must comply with that standard.
Respondent's Arguments
The respondent asserts that for purposes of determining the
average concentration of respirable dust in the mine atmosphere
for compliance with section 70.101, the samples must be taken at
approximately the same time and location in which the sample to
determine the percentage of quartz in the mine atmosphere of the
active workings is taken .
Citing the dictionary definition of the word "when", the
first word in section 70.101, as "at or during the time that,"
and the definition of the phrase "active workings," the
respondent concludes that the concentration of respirable dust
must be determined during the time that the percentage of quartz
is determined .

1 1 14

taken is unrealistic. However, MSHA points out that this is
exactly what is being advanced by the respondent in this case.
MSHA believes that not knowing what standard to comply with or to
enforce on any particular day would create an untenable situation
from a compliance and enforcement standpoint, and would be
unreasonable.
MSHA further explains that following established procedur~s,
the respondent was given the opportunity to submit an optional
sample, which was taken on June 28, 1993, and submitted to MSHA
for analysis. That sample contained 13.8 percent quartz, ~nd in
accordance with established MSHA procedures, since the 2 samples
were within 2 percent, they were averaged and a new standard of
0.9 milligrams was set and became effective on July 2, 1993 .
From March 30, 1993 to July 2, 1993, the respondent was on a 2.0
milligram standard, and even though the designated MMU occupation
was exposed to 11 percent quartz on June 6, 1993, the respondent
did not receive a citation nor was the dust. standard adjusted
based on that sample because this would be inconsistent with
established policy.
MSHA concludes that its current dust standard setting
procedure is fair because operators had adequate notice of how
the standard would be adjusted and that it would be applied to
everyone, and on any given day, operators and MSHA know what
standard is in effect. MSHA believes that the procedures, kno.wn
to everyone since 1985, have a scientific basis, and constitut~ a
reasonable approach to enforcing Section 70.101, since everyo~e
knows to what standard they are held, and because specific
features of the program are advantageous to the operator.
As a further safeguard for operators, MSHA points out tha~
to ensure that the quartz levels at entities on a reduced dust
standard are periodically evaluated and that operators are not
unduly penalized by a reduced standard that may no longer be
valid, MSHA procedures also provide for automatic reevaluation pf
quartz levels every six months. If an entity is on a reduced
standard and has not been sampled by MSHA during a six month
period, an operator's bimonthly sample is automatically select~d
by the computer for quartz processing to determine whether the
applicable dust standard should be adjusted. Additionally,
should conditions change that may significantly impact the amount
of quartz dust in the work environment to which miners are
exposed, operators can request MSHA to resample as the respondent
did in this case. But MSHA makes it clear that an inspector w~ll
first make a determination of compliance with the existing
standard.
MSHA argues that its policy is not inconsistent with the
requirements or language of section 70.101. MSHA asserts that
the statutory and regulatory requirement for a reduced dust
standard "when" there is greater than 5 percent quartz in the

111 5

dust control plan, daily. MSHA concludes that if it were to do
this, the respondent would cry "foul," and would argue that this
constant monitoring would be an impossible burden and it would
have no up-to-the-minute knowledge of changes in conditions, and
would have no knowledge of whether or not it was on a reduced
standard . MSHA points out that it does not obligate an operator
to comply with an unknown, and concludes that the existing
procedures that it follows in adjusting dust standards are
reasonable because mine operators always know to what standard
they are being held, thereby assuring that miners are protected
on a continuous basis as the Act requires.
MSHA points out that the contested procedure in question has
been in place since 1985, has been followed consistent!.Y and
applied to everyone, and reflects its interpretation as to the
intended meaning and application of Section 10 . 101. As such,
MSHA concludes that it is entitled to considerable deference .
MSHA points out further that prior to 1985, dust standards were
adjusted based solely on the results of MSHA samples, with no
operator participation in the process. The current procedure
establishes a dust standard to be complied with on a continuous
basis based on the results of up to three samples (one MSHA and
up .. to two operator samples). Operators know what standard they
are being held to on any given day and, as set forth in the
Program Policy Manual, know how respirable dust samples taken by
either MSHA or the operator will be processed against a reduced
dust standard .
MSHA states that in this case, the respondent knew it was on
a reduced standard of o.s milligrams on February 8, 1993, and
knew it had to comply with that standard. Following the
established procedures referred to in MSHA's policy and health
manuals, the February 8th inspector sample, which indicated 2
percent quartz, triggered a computer message to the respondent
affording it the opportunity to submit a quartz sample. The
respondent opted to participate by collecting a sample on
February 26, 1993, which was found to contain 5 percent quartz.
Not until March 30, 1993, was the dust standard for MMU 023-0
adjusted back to 2.0 milligrams.
MSHA further explains that it conducted another inspection
in June 6, 1993, and the 2.0 milligram standard was in effect at
that time. The average of the five inspector dust samples was
less than the applicable standard, and following established
procedures, one of the samples was analyzed for quartz and was
fou.n d to contain 11 percent quartz . However, the standard was
not reduced based on that sample's quartz content, nor was a
citation issued for exceeding the reduced standard based on that
sample because .the respondent was aware of only the particular
standard in effect at the time the sample was taken. Requiring
the respondent to maintain compliance with a standard to be
established at a later date on the day the particular sample was

1116

miners will not be exposed to the same levels of quartz. MSHA
concludes that in order to prov ide the maximum level of health
protection on every shift it is not unreasonable to have the
respirable dust standard follow the unit upon which it was
established, as provided for in MSHA's Health Manual (Exhibit P-3
at paragraph 8, pg . 1.26), and as stated by Mr. Niewiadomski that
"··· when MMU 023 moves to a different part of the mine, the
standard moves w~th that entity until such time when that
standard is adju~ted." (Tr. 85).
MSHA points out that in American Mining Congress v.
Marshall, 671 F.2d 1251 (10th Cir . 1982) the Tenth Circuit upheld
its "designated area sampling" program which was designed to
measure the concentration of respirable dust to which coal miners
were exposed as they worked and traveled in outby areas . . The
Court held that this method, although not perfect, was not beyond
the scope of MSHA's discretion, stating as follows.
Since there is no perfect sampling method, the
Secretary has discretion to adopt any sampling method
that approximates exposure with reasonable accuracy.
The Secretary is not required to impose an arguably
superior sampling method as long as the one he imposes
is reasonably calculated to prevent excessive exposure
to respirable dust. On this record, the difference
between area and personal sampling is not shown to be
so great as to make the Secretary's choice of an area
sampling program irrational. American Mining Congress,
at 1256 .
MSHA acknowledges that its interpretation of "active
workings" as following the MMU may not be perfect. However, it
takes the position that it is rational and well within its
discretion, and maintains that in light of the need for the
respondent to comply with a set standard, and the need for an
inspector to enforce a set standard, this interpretation of
"active workings" is the only viable one. MSHA further believes
that if there is evidence that the operating conditions in the
area of the mine where the MMU has moved to do not pose a quartz
risk, it has procedures in place which the respondent is familiar
with, by which it can request a reevaluation of the quartz levels
in the environment .
MSHA maintains that if it were to follow the respondent's
logic the standard would need to be adjusted whenever MSHA
detected a quartz level of over 5 percent. This could result in
the issuance .of dust citations if the actual dust concentration
exceeded the adjusted standard. In this case, a citation would
have issued after the August 12, 1992, sample of 22 percent
quartz. Therefore, to comply with section 70.101, as the
respondent interprets it, the respondent would have to monitor
dust daily and would have to change its dust controls, and its
1117

of controlling weight unless it is plainly erroneous or
inconsistent with the regulation . " (citation omitted). MSHA
concludes that its interpretation of section 70.101, is neither
erroneous nor inconsistent with the regulation, although the
respondent argues that its interpretation of "active working" is
unreasonable.
In reply to the respondent's contention that since the
0.8 milligram reduced standard was established from a sample
collected on August 12, 1992, from an area that was an "active
workings" at that time, but not an "active workings" on
February 8 , 1993, MSHA must use samples collected on February 8,
1993, to determine compliance with section 70.101, MSHA asserts
that the respondent would never be on a reduced standard, and it
concludes that the respondent's argument is flawed in two .....
respects: the reduced standard was not established solely from
the August 12, sample, and following the respondent ' s reasoning
"active workings" could never be. measured because it changes from
day to day .
MSHA states that the reduced dust standard was not
established from a sample collected on August 12, 1992, and that
this sample began a process within which the respondent was able
to and did participate. MSHA points out that the August 12
sample was sent to Pittsburgh to be analyzed for quartz, and on
August 20, 1992, it was determined that the designated occupation
miner was exposed to 22 percent quartz, well over the 5 percent
quartz permitted by the standard. The respondent was immediately
notified of this and given the opportunity to submit an optional
sample, and no citation was issued even though the designated
occupation was exposed to 22 percent quartz on August 12, 1992.
The MSHA Program Policy Manual and Health Manual was followed .
The respondent submitted its own sample on September 17, 1992,
which indicated 10 percent quartz . Since there is more than a
2 percent difference between 10 percent and 22 percent, the
respondent was given the opportunity to submit a second optional
sample, and it did so. This sample revealed 10 percent quartz .
On October 6, 1992, the standard was reduced to 0.8 mg/m3 and
this reduction was based upon one MSHA sample and two of the
respondent's samples. Again, no citation was issued based upon
that 22 percent exposure because at that time, the respondent did
not know of the overexposure, and MSHA believed it would be
unfair to hold the respondent to a standard it did not know.
MSHA argues that the mine "active workings" change from day
to day on a longwall and would be impossible to measure . It
believes that a reasonable determination of the "active workings"·
in the case of respirable dust sampling is to follow the
mechanical mining unit (MMU). Since the same type of coal
extraction equipment is involved in the MMU, and since the same
occupations are working that MMU, including the designated
occupation, MSHA concludes th~t there is no reason to assume that

1118

plan to decrease the· amount of respirable dust a min~r inhales.
MSHA further concludes that it must also establish this standard
so that it is able to enforce section 70.101, and that without a
known respirable dust standard, it would be impossible to enforce
this regulation.
Citing the testimony of its expert witness George
Niewiadomski that compliance and enforcement of a reduced
respirable dust st~ndard can only be achieved if the standard is
known, MSHA asserts that the establishment of such a known
standard is accomplished by following a reasonable and fair
process set out in its Health Manual. MSHA explains that when a
dust sample indicates that exposure to quartz is over 5 percent,
it notifies the operator of the results of the quartz analysis
and the operator is given an option to take a sample and send it
to Pittsburgh to be analyzed for quartz, and no citation for a
violation of section 70.101 is issued. If the difference between
these two samples is more than 2 percent quartz, the operator ~s
given a second option to submit another sampl~, and up to three
samples may be averaged to determine the average quartz
percentage which is used to establish the dust standard . Only
after this process is completed is the operator placed on a
reduced dust standard. At that point, the reduced dust standard
is known to the operator and to MSHA. The operator can then
determine the controls needed to comply with this standard and
the MSHA inspector then knows what standard is to be enforced.
When the inspector samples in the future, whether it is a
regularly scheduled sampling, or a reevaluation requested by the
operator, he must first determine whether the operator is
complying with the standard in place. If the operator fails to
comply with the reduced standard, a citation will be issued.
MSHA states that this procedure is clearly stated at paragraph 6,
page 1.24, of its Health Manual (Exhibit P-3).
MSHA further argues that it is well established that its
interpretation of a regulation must be given great deference,
citing Secretary of Labor v. Cannelton Industries, 867 F.2d 1432,
1435 (D.C. Cir. 1989), where the court stated that "the
legislative history of the Mine Act indicates that the
Secretary's interpretations of the law and regulations shall be
given weight by both the Commission and the courts. S.Rep .
No. 181, 95th Cong., 1st Sess. 49 (1977) reprinted in 1977
U. S. Code Cong. & Admin. News 3401, 3448."
In those instances where MSHA and a mine operator may both
have reasonable interpretations of a regulation, MSHA concludes
that its interpretation is preferred, citing Secretary of Labor
v. Western Fuels-Utah, 900 F.2d 318, 321 (D.C. Cir. 1990), where
given a choice between competing interpretations of 30 C.F.R .
S 48.2 "Supervisory personnel" exception, the court held that it
must defe~ to MSHA's interpretation, stating that "It is well
settled that an agency's interpretation of its own regulation i$

1119

The respondent maintains that the citation was not issued
based upon the concentration of respirable dust and percentage of
quartz in the mine atmosphere of the active workings on February
8, 1993, but rather, MSHA issued the citation based upon the
average concentration of respirable dust on February 8, 1993, and
the percentage of quartz in the mine atmosphere at a different
location during August and September 1992 . The respondent points
out that the pei;..centage of quartz in the mine atmosphere of the
active workings ·o f the MMU 023-0 on February 8, 1993, was deemed
by MSHA to be irrelevant in determining whether a violation of
section 70.101 occurred on that day.
In further support of its position, the respondent relies on
the reference in section 70.101 to the quartz content of the
respirable dust in the mine atmosphere of the active workings
and the average concentration of respirable dust in the mine
atmosphere during each shift to which each miner in the active
workings is exposed. "Acting workings" is defined by
section 70.2(b) as "any place in a coal mine where miners are
normally required to work or travel." The evidence establishes
that the area in which the sample was ta.k en that established the
respirable dust standard that the respondent allegedly violated
on February 8, 1993 (i . e . , the area in which MMU 023-0 was
operating during August and September 1992) was part of the gob
area on February 8, 1993 , and the respondent maintains that this
area was unquestionably not an area where miners were normally
required to work or travel on February 8, 1993. However, the
MSHA samples that were taken on February 8, 1993 , that determined
an average concentration of respirable dust of 1.0 milligrams and
two percent quartz were from the active workings.
Respondent asserts that it did not violate section 70.101,
on February 8, 1993. In support of its position , the respondent
relies on the fact that based on the February 8, 1993, MMU 023-0
samples, MSHA determined that the average concentration of
respirable dust was 1 . 0 milligrams per cubic meter of air, and
determined the quartz percentage to be two percent, and the
inspector acknowledged that this was the case. However, the
respondent points out that if the mine atmosphere contains two
percent quartz, then according to section 70.101 , it would be
allowed up to 2.0 milligrams of respirable dust per cubic-meter
of air.
The respondent concludes that on February s, 1993, when the
respirable dust in the mine atmosphere of the active workings of
.MMU 023-0 contained less than five percent quartz, it was in fact
maintaining the average concentration of respirable dust in the
mine atmosphere during the shift in which the sample was taken in
the active work ings below two milligrams per cubic meter of air
as measured with an approved sampling device, and as determined
by MS~ . Accordingly, no violation of section 70.101 occurred as
alleged in the citation.

. 1120

The respondent ·argues that contrary to the inspector's
testimony, MSHA's health specialist George Niewiadomski stated
that according to MSHA policy MSHA cannot make a determination of
the quartz percentage in the cited area on February 8, 1993,
based upon the one sample taken that day, and that the standard
would be based on multiple samples. Respondent emphasizes MSHA's
contention that it could not readjust the respirable standard to
2.0 milligrams ttased upon the February 8, 1993 sample because, as
the inspector stated, "You got to go through the guidelines . "
(Tr. 50) •
The respondent asserts that there are . many occasions in
which MSHA establishes a new standard based upon one sample. It
cites Mr. Niewiadomski's testimony that a quartz determination is
based upon one sample when the operator does not submit any
optional samples, when an optional sample lacks adequate···weight
for purposes of testing for quartz, or when the operator's sample
is damaged in transit. Acknowledging the fact that MSHA policy
allows it the right to submit one or two optional samples, the
respondent believes that there is no incentive for it to do so if
the quartz is determined to be less than five percent by MSHA's
anaiysis. Based upon the one MSHA analysis of two percent
quartz, the respondent would have the reduced standard eliminated
and be placed again on the 2 . 0 milligrams per cubic meter of air
respirable dust standard. Even if it had submitted two more
samples for quartz analysis and MSHA determined that these two
samples contained zero percent quartz, the respondent points out
that it would still have been placed on the 2 . 0 milligram
standard .
The respondent confirms that in this case it did submit a
first optional sample but not a second one, and that it did so
because it was informed by the MSHA district office that the
quartz percentage would not be determined by the February 8, 1993
sample, but rather on a rolling basis. The respondent concludes
that neither MSHA's district office nor the r~~pondent understood
the policy MSHA was enforcing and that the confusion created by
the existing policy is evidenced by MSHA's need to bring a
specialist from Arlington, Virginia to the hearing to explain
the policy.
The respondent asserts that MSHA does establish a new
respirable dust standard based upon one quartz analysis if the
operator does not submit additional samples. Since an operator
would receive no benefit from submitting additional samples when
MSHA's quartz analysis determined the mine atmosphere to contain
less than five -percent quartz, the respondent believes it would
be reasonable for MSHA to then eliminate the reduced standard
requirement for the operator as of the date MSHA took the sample.
In this case, the respondent points out that while MSHA took a
sample evidencing two percent quartz on February 8, 1993, the

1121

respirable dust standard was not adjusted to the 2.0 milligram
standard until March 30, 1993, when it was officially notified of
the new standard.
The respondent argues that MSHA's respirable dust compliance
policy is inconsistent with the requirements of section 70.101,
for determining the amount of quartz in the active workings. The
respondent maintains that it is the MSHA samples that were taken
on February a, 1993, in the active workings of the 4 South
Longwall Panel, and not those taken in August and September 1992,
that were relevant for determining compliance with this section.
Yet, MSHA policy required that compliance be based upon a sample
taken approximately six months earlier in an area that was no
longer part of the active workings as of February 1993.
The respondent takes the position that MSHA's policy fails
to achieve the stated purpose to protect miners, and that MSHA
has acknowledged that the actual amount of quartz present in the
mine atmosphere of the cited MMU on February ·s, 1993, is
irrelevant to determining whether a violation of the respirable
dust standard existed on that day . Even though it is undisputed
that the amount of quartz in the atmosphere varies with the
location in the mine, respondent believes that MSHA's policy does
not take this into account, and, as Mr. Niewiadomski testified,
the established quartz standard remains even if the MMU is moved
to another mine. Conceding that it could request another survey
if it provides evidence justifying a reevaluation, the respondent
believes it could easily be several months before a new standard
would be established following such a request .
The respondent argues that the obvious intent of the
regulation is to provide for the miners to breathe a smaller
concentration of respirable dust when the percent of quartz in
the mine atmosphere at the active workings is higher and to
provide for the issuance of a violation when the concentration of
respirable dust is higher than section 70.101 permits, based upon
the percent of quartz present. However, in this case, the
respondent points out that it received the Citation despite the
mine atmosphere at MMU 023-0 on February 8, 1993, being well in
compliance with section 70.101, when the mine atmosphere
contained only two percent quartz and the average concentration
of respirable dust was only one milligram, one-half of the
concentration deemed acceptable in a mine atmosphere containing
as high as five percent quartz .
The respondent concludes that MSHA has basically
acknowledged the failure of its policy to protect miners, and
points out that the citation in. this case was modified to non"S&S" because the mine environment was only two percent quartz,
and the inspector was of the opinion that breathing one milligram
of respirable dust in an atmosphere of two percent quartz does
not subject one to a health hazard.

1122

The respondent cites the fact that MSHA vacated a citation
issued in a similar situation. Respondent states that on
March 1, 1993, Inspector Zirkle issued a violation based upon the
result of five respirable dust samples collected by the
respondent during the January/February 1993 bi-monthly sampling
cycle. The average concentration of respirable dust for the
applicable mechanical mining unit was 1.4 milligrams per cubic
meter of air which exceeded the reduced standard then in effect
of 0.9 milligrams per cubic meter of air. However, based upon
the 3% quartz found in MSHA's sample from the same MMU on
February 5 , 1993, and the 2% quartz found in the operator's first
optional sample of February 26, 1993, MSHA vacated the citation
and acknowledged that the quartz percentage at the subject
location was sufficiently low at the time the samples were taken
that the reduced standard was applicable (Exhibits R-1 through
R-4; Tr. 59-63) .
..
The respondent states that the amount of quartz in the mine
varies with the mine location and is dependent upon the material
in the roof, bottom, and face areas. Respondent points out that
the amount of quartz that will be encountered can be approxiimately determinated by its geologist Steve Doe as he explained
in the course of the hearing, and that based on the anticipated
mining conditions, it submitted a sample to its laboratory. The
laboratory analysis showe d 4.38 percent quartz in the sample, and
as a result, the respondent's general manager sent a letter to ,
MSHA's district manager on January 15, 1993, requesting a repeat
respirable dust survey (Joint Exhibit 6). However, the standard
was not revised until more than two months later.
The respondent believes it is clear that MSHA policy does
not provide for there to be any correlation between the
concentration of respirable dust and the amount of quartz that
the miner is breathing in the active workings, and it points to
the testimony of Mr. Niewiadonski that the entire process from
the time the inspector takes a sample until a new standard is
established can be from three to eight weeks, and this time is
required in order for an operator to be able to collect and mail
optional samples and have those samples analyzed. Respondent
also believes that the February 8, 1993, quartz sampling was the
result of chance rather than a response to its request. The
respondent concludes that but for the chance quartz analysis of
February s, an even greater time would have expired before its
request and MSHA's response.
The respondent argues that "the absurdity of the MSHA
policy" is further exemplified by the procedure by which an
operator is granted a repeat respirable dust survey. The
respondent states that according to MSHA policy, "In those
instances when a mine operator or miner representative makes a
justifiable request for a repeat respirable dust survey to
determine quartz content, MSHA will collect samples to first

11 23

determine wh·ether there is compliance with the applicable dust
standard before submitting for quartz analysis , " (Exhibit P-3,
paragraph 6, p. 1 . 24, Tr . 97). If there is a violation of the
existing standard at the time of the repeat respirable dust
survey, the inspector will issue a citation and require
corrective action to be taken so that the operator will be in
compliance with the then existing standard (Tr . 97-99).
The responaent further asserts that after an operator has
presented a "justifiable request" for a repeat survey , which
request would presumably be based upon the operator having
acquired evidence that the reduced quartz standard should no
longer be applicable due to changed mining conditions, MSHA will
issue a violation if the operator is not in compliance with an
outdated standard based upon a quartz percentage determined in an
area that the operator believes to have had considerably more
quartz than the area in which the operator is then mining. Thus,
by requesting a survey, the respondent concludes that an operator
is exposing itself to the issuance of a violation based upon a
standard that the operator (and most likely in many situation
MSHA) believes to be no longer applicable. Then, if a violation
is issued , the operator must comply with the no longer applicable
reduced standard. The respondent finds it difficult to
comprehend how this policy promotes the health of the miners.
The respondent states that in the instant case MSHA took the
samples on February 8, 1993, issued the violation on February 18,
1993, and issued a notice on February 19, 1993, that the quartz
percentage was 2% based on the sample taken on February 8. The
respondent points out that there is no particular time period
during which an inspector is required to issue a citation, and
had the inspector here waited until February 19, 1993, or had he
been immediately notified of the results of the analysis of the
quartz sample, he would have known both the quartz percentage and
the average concentration of respirable dust in the mine
atmosphere at the cited location on February a, 1993, prior to
issuing the citation . The respondent submits -that in order for
MSHA to act in accordance with § 70 . 101, the inspector should
have then not issued the citation, although this is contrary to
MSHA policy.
In response to MSHA's argument that enforcement "works both
ways", and that it cannot tell on the date it takes the sample
what the quartz percentage is going to be, and thus must enforce
the standard that was previously established, the respondent
asserts that by simply waiting until the quartz analysis is
completed MSHA can at least determine in situations in which the
sample has less than 5% quartz and the average concentration of
respirable dust is less than the 2.0 milligram standard that no
citation is warranted.

1 124

-

how rapidly mining conditions change, the
respondent maintains that MSHA is not making a determined effort
to bring the time in which the average concentration of
respirable dust is determined as close as possible to the time in
which the quartz percentage is determined. Even though the
inspector testified that he conducted sampling at the Meigs No. 2
Mine approximately 12 times per year, according to MSHA policy,
MSHI\ determines quartz percentage only two times per year. Based
upon the MSHA district manager's letter of February 23, 1993,
advising that its request for a dust reevaluation "will be
complied with as soon as the work load permits", the respondent
concludes that months could easily pass before a justifiable
request for a repeat survey to determine quartz percentage would
be· acted upon by MSHA.
Consid~ring

Responding to Mr. Niewiadomski's testimony that MSHA does
not know the quartz .percentage in the mine atmosphere as of the
date it takes the samples to determine the concentration· ·of
respirable dust, the respondent believes that MSHA could have
known in this particular case because during a January 26, 1993,
inspection of the mine, the inspector was informed that the
respondent had requested a quartz technical inspection, and this
was almost two weeks before the inspector took the samples to
determine compliance with the standard that was established the
previous August.
The respondent points out that MSHA has acknowledged that a
policy interpretation that is inconsistent with the regulation is
not controlling. The respondent asserts that while section
10.101, . requires a correlation in time and location between the .
quartz percentage in the active workings and the concentration of
respirable dust 'in the active workings, MSHA's interpretation of
this section does not. The respondent maintains that MSHA's
interpretation clearly ignores the percent of quartz in the mine
atmosphere at the time during which the samples that provide the
basis for a violation are taken. Citing Anierican Mining Congress
v. Marshall, 671 F.2d 1251, 1256 (10th Cir. 1982), where the
court ruled that a new procedure instituting a "designated area
sampling" program was proper, the respondent noted that the court
observed that such a program was "· • • • designed to measure the
concentration of respirable dust to which miners are exposed as
they work and travel in outby areas."
On the facts of this case, the respondent concludes that
MSHA's pol~cy is not fair, logical, or reasonable, because the
respirable dust standard was based upon the percentage of quartz
present in an abandoned area that was mined six months earlier,
and MSHA's method imposes a standard unrelated to the miner's
exposure. The respondent points out that based upon changed
mining conditions, it knew more than a month prior to the
issuance of the citation, that the quartz percentage used by MSHA
in determining compliance with S 70.101, did not approximate the

1125

miner's exposure and so informed MSHA . Yet, · according to its
policy MSHA is bound to not revise the standard which it may have
already determined to be outdated since the repeat respirable
dust survey is done when it receives a "justifiable request."
The respondent argues that while the clear objective of
section 70 . 101, is for miners to breath a lesser concentration of
respirable dust when the percent of quartz is higher, MSHA's
policy is not in ·harmony with this objective .
The respondent maintains that MSHA'S interpretation of
section 70.101, impermissibly broadens the meaning of "active
workings" . The respondent attacks the correctness of MSHA's
contention that the respondent's interpretation of "active
workings" is impracticable because the respondent would not have
knowledge of the applicable standard that it must meet if it were
continually. changing, that the phrase "active workings" . is not
intended to mean "any place in a normally required to work or
travel," as defil')ed by section 75.2, but rather the area in which
the mechanic.al mining unit (MMU) was previously in operation, and
MSHA's presumption that since the same equipment and occupations
follow the MMU, there is no reason to assume that miners will not
be exposed to the same levels of quartz.
In response to MSHA's contentions, the respondent argues
that the percent of quartz in the mine atmosphere is related to
the geological conditions, not the MMU. While the respondent may
not be able to determine on a daily basis the exact percentage of
quartz i~ the mine atmosphere, it maintains that it does know
when geological conditions have changed and the quartz percentage
has greatly increased or decreased, but that MSHA's policy
ignores these changes. Because MSHA only takes samples for
quartz percentages two times a year·' the respondent concludes
that it can easily take two months thereafter for a new quartz
percentage to be established, and it is unlikely that MSHA policy
ever results in a correlation between the quartz percentage and
the amount of respirable dust in the mine atmosphere.
Recognizing that MSHA policy acknowledges that changed mining
conditions result in changes in the level of quartz by providing
for rechecking the quartz percentage every six months and
supposedly rechecking upon an operator's request , the respondent
believes that the checks are too infrequent to accurately reflect
mining conditions.
The respondent concludes that based on the MSHA samples
taken on February s, 1993, only MSHA policy and not section
70.101, was violated . Since it believes that the policy is
inconsistent with both the plain language and purpose of section
70.101, and should not be enforced, the respondent maintains that
the citation should be vacated and no penalty should be assessed.

1126

The respondent suggests that MSHA can readily implement
three improvements to its policy to reflect the requirements of
section 70.101:
(1) MSHA could more rapidly respond to an
operator's request for a repeat respirable dust survey and
expedite the process of establishing a new standard when it is
appropriate; (2) MSHA could more frequently determine quartz
analysis by making such a determination each time it checks to
determine compliance by sampling for the average concentration of
respirable dust; - and (3) MSHA should not cite an operator when
the operator has · requested a repeat respirable survey and
determines that the quartz percentage and the amount of
respirable dust in the active workings as of the day the samples
are taken are in compliance with the formula set forth in
§ 70.101.
Findings and Conclusions
The fundamental statutory Mine Act requirement with respect
to the respirable dust standard is that the average concentration
of dust be continuously maintained at or below 2 milligrams per
cubic meter of air (2.0 mg/m3) . Section 202(b) (2) of the Act,
30 u.s.c. 842(b) (2) provides in relevant part as follows:
. • • each operator shall continuously maintain the
average concentration of respirable dust in the mine
atmosphere during each shift to which each miner in the
active workings of such mine is exposed at or below
2.0 milligrams of respirable dust . • • (emphasis
added) .
The statutory limitation of 2 . 0 milligrams of respirable
dust is codified as part of MSHA's mandatory regulations at
30 C.F.R. § 70 . lOO(a), which provides as follows :
(a) Each operator shall continuously maintain the
average concentration of respirable dust in the mine
atmosphere during each shift to which each miner in the
active workings of each mine is exposed at or below
2 . 0 milligrams of respirable dust per cubic meter of
air as measured with an approved sampling device and in
terms of an equivalent concentration determined in
accordance with S 70.206 (Approved sampling devices;
equivalent concentrations). (Emphasis added).
Pursuant to section 205 of the Act, whenever the respirable
dust in the mine atmosphere contains more than 5 percent quartz,
the 2 milligram standard must be lowered, and the operator is
required to maintain the respirable dust below the 2 milligram
average concentration. Section 205 of the Act, provides as
follows:

1127

In coal mining operations where the concentration of
respirable dust in the mine atmosphere of any working
place contains more than 5 percent quartz, the
Secretary of Health, Education and Welfare shall
prescribe an appropriate formula for determining the
applicable respirable dust standard under this title
for such working place and the Secretary [of Labor]
shall appLy such formula in carrying out his duties
under this· title.
(Emphasis Added)
The regulatory lowered respirable dust standard when more
than 5 percent quartz is present is codified at 30 C.F.R .
§ 70 . 101, the regulation allegedly violated by the respondent in
this case, and it states as follows:
When the respirable dust in the mine atmosphere of the
active workings contains more than 5 percent quartz,
the operator shall continuously maintain the average
concentration of respirable dust in the mine atmosphere
during each shift to which each miner in the active
workings is exposed at or below a concentration of
respirable dust, expressed in milligrams per cubic
meter of air as measured with an approved sampling
device and in terms of an equivalent concentration
determined in accordance with § 70.206 (Approved
sampling devices; equivalent concentrations), computed
by dividing the percent of quartz in to the number 10.
(Emphasis added).
30 C.F.R. § 70.207(a) requires a mine operator to take
bimonthly samples of respirable dust from the designated
occupation in each mechanized mining unit (MMU). A mechanized
mining unit is defined in relevant part by section 70.2(h), as "a
unit of mining equipment including hand loading equipment used
for the production of material . " The designated occupation is
defined in section 70.2(f), as "the occupation- on a mechanized
mining unit that has been determined by results of respirable
dust samples to have the greatest respirable dust concentration . "
In the instant case the MMU consists of the longwall tail
shearer, shield puller, headgate operator, mechanic, and foreman
(Joint Exhibit-1), and the designated high risk occupation is the
tail shearer.
MSHA's policies and procedures with respect to a reduced
dust standard due to excessive levels of quartz are set out in
four exhibits consisting of a February 15, 1989, six-page portion
of MSHA's coal Mine Health Inspection Procedures (Exhibit P-3);
two pages from the July 1, 1988, Program Policy Manual (Exhibit
P-1); a one-page Policy Memorandum No. 85-7c, dated November 12,
1985 (Exhibit P-5); and a four page memorandum HQ-85-133-H, dated
November 11, 1985 {Exhibit P-4).

1128

MSHA's inspection procedures provide in relevant part at
pgs 1.26 and 1.27 (Exhibit P-3):
8.

MSHA's procedures for applying a reduced
standard will parallel those of issuing
citations on an MMU. This includes keeping
the raduced standard, as well as any
citations issued for exceeding the reduced
standard, with an entity when it moves to a
new location. Some situations that may occur
as sampling results are received and entities
move to new locations are addressed in the
following:
a.

An MMU is operating in location 1

under a reduced standard and is
moved to location 2 (for example,
3000 feet away). The reduced
standard remains in effect on that
MMU in location 2. If subsequent
sampling by MSHA or the operator
indicates a violation of the
reduced standard at location 2, the
inspector issues a citation.
b.

9.

An MMU is operating in location 1
under a reduced standard and a
citation is in effect. Mining is
completed in location 1 and the MMU
is moved to location 2 (for
example, 3000 feet away). The
citation remains in effect until
the violation is abated.

Revaluation of an entity's airborne quartz
levels may become necessary because of the
following:
a.

Changing conditions - such as
cutting more or less roof or bottom
variation in the coal seam parting,
etc. - have resulted in increased
or decreased quartz content.

b.

Improved dust controls - mine
operator requests MSHA to resample
because of improved mining methods,
ventilation controls or engineering
controls.

The evidence in this case establishes that the 0.8 milligram
standard for the cited MMU was based on dust samples collected by

1129

MSHA on August 12, 1992, and subsequent samples submitted for
quartz analysis during August and September 1992 . The respondent
was notified on October 6, 1992, that the 0 . 8 milligram standard
applied to the MMU . It is undisputed that the reduced respirable
dust standard for the cited MMU was the result of levels of
quartz in excess of five percent at the sampled MMU atmosphere .
Accordingly, I conclude and find that there is a direct
correlation between the presence of quartz at the MMU location
where sampling is done and any reduced dust standard that may
follow from such sampling.
In the instant case, the respondent is charged in a citation
issued on February 18, 1993, with an alleged violation of
section 70.101, that purportedly occurred on February 8, 1993,
when the results of five valid respirable dust samples collected
that day by MSHA reflected an average concentration of respirable
dust of 1.0 mg/m3, which exceeded the allowable standard of 0.8
mg/m3 that had previously been established for the cited MMU as
the result of sampling that took place some six months earlier
beginning on August 12, 1992.
The term "active workings" is defined by section 70.2(b), as
"any place in a coal mine where miners are normally required to
work or travel". Although the evidence in this case establishes
that the reduced 0 . 8 milligram respirable dust standard for the
cited MMU was based on sampled quartz levels taken during August
and September 1992, when the MMU was located in the active
workings of the mine, when the citation was issued on February 8,
1993, the prior MMU location was a gob area and no longer part of
the mine active workings where miners were required to work or
travel. Even though the evidence establishes that the average
concentration of respirable dust on the MMU on February 8, 1993,
was 1.0 milligrams, and that the reduced quartz level of 2
percent would normally have allowed for 2.0 milligrams of
respirable dust at that location, the inspector ignored this and
issued the violation because the respondent exceeded the
previously fixed reduced standard of 0.8 milligrams, based on
quartz sampling at the earlier active working area which no
longer existed when the violation was issued.
Inspector Zirkle confirmed that even though the respondent
had more than complied with its approved dust control plan by
increasing the air velocity and adding additional water sprays,
it still exceeded the 0.8 milligram standard that he applied when
he issued the violation on February 8, 1993, pursuant to MSHA's
policy procedures that require him to consider the fact that the
reduced dust standard in place at that time moves with the MMU
and remains in place regardless of the actual mine atmosphere
conditions at the new MMU location, and the decreased levels of
quartz exposure at that location.

1 1 30

Inspectdr. Zirkle agreed that the quartz percentage in the
mine varies with the roof conditions and the presence and
location of stone which ·produces quartz when it is cut (Tr. 32).
Mr. Niewiadomski agreed that quartz levels can vary significantly
and he confirmed that the mine conditions had changed on
February 8, 1993, as reflected by the sampling on that day which
indicated a reduction in the quartz present in the MMU atmosphere
(Tr. 108, 124). Notwithstanding these changed mining and
atmospheric conditions, and the increased air velocity and water
sprays in excess · of the approved dust control plan, the inspector
considered the atmosphere of that unit to be irrelevant to any
determination of a violation in this case.
As noted earlier, Mr. Niewiadomski agreed that quartz levels
can vary significantly and he believed that it was important that
any sampling that is done is representative of typical mining
conditions (Tr. 108, 144). Under the circumstances, I find it
difficult to comprehend the logic of MSHA's policy interpretation
that the "active workings" follow the MMU, and that once a
reduced respirable dust standard based on the level or percentage
of quartz present in the MMU atmosphere is established, that
standard follows the MMU to the new location regardless of the
presence or absence of quartz at that location . Indeed, under
MSHA's policy interpretation, if the MMU in this case were moved
to another mine the reduced allowable average respirable dust
exposure standard would move with it without regard to the
atmospheric quartz environment at that new location, and the
r~spondent would be held accountable and liable for a penalty
assessment for not complying with a standard at that location
based on a quartz exposure that may not exist. I cannot
reconcile this contradictory logic, nor can I conclude that such
a procedure provides a credible or probative evidentiary basis
for establishing non-compliance and proving a violation in this
case .
As correctly stated by MSHA, the Tenth Circuit in Aineri can
Mining Congress v. Marshall, supra, held that the Secretary had
discretion to adopt the "designated area sampling" program to
measure the concentration of respirable dust to which coal miners
are exposed as they go about their daily business. I agree that
the Secretary need only show a rational basis for such a program
as long as it is reasonably calculated to prevent excessive
exposure to respirable dust . However, on the facts of the
instant case, I cannot conclude that MSHA's policy interpretation
of "active workings" as following the MMU, when applied in an
enforcement action seeking to hold the respondent accountable for
a violation of section 70.101, for exceeding the lowered
respirable dust standard due to the presence of quartz is
rational, particularly since it requires the inspector to ignore
the absence of quartz, or reduced quartz exposure at the MMU
location where the alleged violation occurred.

1131

It seems clear to me that the objective and intent of the
requirement found in Section 10.101, for maintaining a reduced
respirable dust exposure level when quartz is present, is to
insure that miners are protected from the hazards associated with
breathing respirable dust containing quartz levels in excess of
five percent in the atmosphere of the active workings. What
troubles me in this case is that the alleged violation is based
on a reduced qtiartz respirable dust standard that was based on
sampling that occurred some six months earlier on an MMU in an
active working area that had been mined out and no longer existed
when the MMU moved to a new location where further sampling
established reduced levels of quartz and compliance with the
newly computed standard at that location. In short, on the facts
of this case, it would appear to me that miners working ._ at the
cited MMU location on February a, 1993, were not in fact exposed
to hazards associated with breathing respirable dust containing
quartz levels in excess of 5 percent in the environment of that
MMU at that particular location.
I conclude that in order to establish a violation of
section 70.101, in this case, MSHA must prove by a preponderance
of the credible evidence that on February 8, 1993, the respirable
dust in the active workings atmosphere where the cited MMU was
located contained more than 5 percent quartz, and that the
respondent failed to maintain the average concentration of
respirable dust in the active working mine atmosphere at that
location at or below a concentration computed in accordance with
the formula found in section 70.101, based on the presence of
quartz in excess of five percent.
Based on the facts and evidence adduced in this case, I find
that on February 8, 1993, the day of the alleged violation, the
respirable dust in the mine atmosphere of the cited MMU active
workings contained less than 5 percent quartz, and that the
respondent maintained the average concentration of respirable
dust in the mine atmosphere during the shift in which the sample
was taken in the active workings below 2 milligrams per cubic
meter of air. Under the circumstances, I find that the
respondent was in compliance with the cited standard and that
MSHA has failed to prove a violation. Accordingly, the contested
citation IS VACATED.

1132

ORDER
In view of the foregoing findings and conclusions,
section 104(a) non-"S&S" Citation No . 3540906, February 18, 1993,
citing an alieged violatin of 30 C. F. R. S 70 . 101, IS VACATED, and
the petitioner's civil penalty proposal IS DENIED AND DISMISSED .

~

~~~

Ge~~tr~
Administrative Law Judge

Distributi on:
Maureen M. Cafferkey, Esq., Office of the Solicitor,
U.S. Department of Labor, 881 Federal Bldg., 1240 East Ninth
Street, Cleveland, OH 44199 (Certified Mail)
David M. Cohen, Esq., American Power Service Corp. , One Memoria l
Drive, Box 700, Lancaster, OH 43130 (Certified Mail)
/ml

1 133

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

NAY 1 6 1994
-

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

..: CIVIL PENALTY PROCEEDING
:
:

Docket No . WEST 93-295-M
A.C. No. 24-01967-05505

.
: Crusher No . 3 Mine
.

v.

REMP SAND & GRAVEL,
Respondent

DECISION APPROVING SETTLEMENT

Before:

Judge Barbour
Statement of the Proceeding

This proceeding concerns proposals for assessment of civil
penalties filed by the Petitioner against the Respondent pursuant
to Section 110{a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. S 820{a), seeking civil penalty assessments for
three alleged violations of certain mandatory safety standards
found in Part 56, Title 30, Code of Federal Regulations. The
Respondent filed a timely answer.
The parties now have decided to settle the matter,
and the Secretary has filed a motion pursuant to Commission
Rule 31, 29 C.F.R. S 2700.31, seeking approval of the proposed
settlement. The citations, initial assessments, and the proposed
settlement amounts are as follows:
Citation No.

pate

4122868
4122875
4122880

07-29-92
07-29-92
07-29-92

30 C.P.R.

s Assessment

56 . 14107(a)
$195
56 . 14107(a)
$136
56 . 14130(a)(3) $ 84

settlement
$195
$135
$ 84

The record contains information pertaining to the six
statutory civil penalty criteria found in Section llO(i) of the
Act, included information regarding Respondent's size, ability to
continue in business and history of previous violations. In
addition, the petitioner states respondent has paid in full the
proposed penalties.

1134

CONCLUSION
After review and consideration of the pleadings, arguments,
and submissions in support of the motion to approve the proposed
settlement of this case, I find that full payment of the
penalties assessed for the subject violations is warranted and
that the settlement disposition is reasonable and in the public
interest. Pursuant to 29 C. F.R. S 2700.31, the motion IS
GRANTED, and the settlement is APPROVED.
ORPER

This proceeding is DISMISSED.

JJ~/d£~---David F. Barbour
Administrative Law Judge
Distribution:
Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
Raymond H. Remp, Remp Sand & Gravel, North 208 Colorado, Libby,
MT 59923

/fb

1135

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

MAY 1 6 1994

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

v.

W. J. BOKUS INDUSTRIES, INC.,
Respondent

..
.•
.

CIVIL PENALTY PROCEEDINGS
Docket No. YORK 92-106-M
A. C. No. 30-02790-05512
Docket No. YORK 92-107-M
A. C. No. 30-02790-05513
High Peaks Asphalt

DECISION ON REMAND

Before:

Judge Weisberger

on April 21, 1994 the Commission issued a decision in this
civil penalty proceeding remanding the matter to me to resolve
the merits of the citations and orders issued concerning
cylinders 1 , a grinder2 , and a fan on a wood stove 3 • Also to be
resolved are the special findings, and appropriate penalties for
violations found.
I.
On October 22, 1991, MSHA Inspector Randall Gadway observed
seven compressed gas cylinders which were standing unsecured .
Four or five of the cylinders contain oxygen, and two or three of
the cylinders contained acetylene. Gadway handled two of the
oxygen cylinders, and determined that they were full. Gadway
issued an order alleging a violation of 30 C.F.R. § 16005 which
provides as follows: "Compressed and liquid gas cylinders shall
be secured in a safe manner." There is no evidence in the record
to contradict or impeach Gadway's testimony. Accordingly, based
upon his testimony, I conclude that Respondent did violate
Section 56.16005, supra .

1

A Section 104(d) (1) order was issued alleging a violation
of 30 C.F.R. § 16005, and another Section 104(d) (1) order was
issued alleging violations of 30 C.F.R. § 56.16006.
2

A Section 104(d) (1) order was issued alleging a violation
of 30 C.F.R. § 56.14115.
An imminent danger order was issued with an accompanying
citation alleging a violation 30 C.F.R. § 56.12030.
3

1136

According to Gadway, the violation resulted from
Respondent 'ef· unwarrantable failure. Petitioner must
establish that there was aggregated conducted on the part of
Respondent (See, Emery Mining Corp., 9 FMSHRC 1997, 2004
(December 1987)). According to Gadway, when he informed
Respondent's employee, James McGee, that the cylinders must be
secured, McGee stated that "'I will tell Mr. Bokus about it'; but
he doesn't do anything about it." (Tr . 21) (sic). McGee, who
testified, did not specifically rebut or impeach this testimony .
William J . Bok~s, who represented Respondent at the hearing, did
not testify to rebut or impeach this testimony. Hence, based
upon the testimony of Gadway, I conclude that the violation
herein resulted from Respondent's aggravated conduct . I thus
find that the violation resulted from its unwarrantable failure.
(See, Emery supra).
In essence, according to Gadway, should one of the... oxygen
cylinders fall or be knocked over, the valve on the cylinder
could break, and cause the cylinder to become a "missile" which
could strike an employee, and cause a seri~us or fatal injury.
At the time of Gadway's observation, one of Respondent's
employees and one employee of Pallette Stone Corporation were
performing work in the garage where the cylinders were located.
This garage was generally used by employees of Respondent and
Pallette stone for the repair of vehicles and equipment . Given
these uncontested facts, I concluded that the violation herein
was significant and substantial (See, Mathies coal co . , 6 FMSHRC
1, 3-4 (January 1984)).
Taking into account the factors set forth in Section llO(i)
of the Act, I find that a penalty of $550.00 is appropriate for
this violation .
II.
Gadway also observed that the two full oxygen cylinders were
not provided with valve covers . He issued a citation alleging a
violation of 30 C.F.R. § 56 . 16006, which provides as follows :
"Valves on compressed gas cylinders shall be protected by covers
when being transported or stored, and by a safe location when the
cylinders are in use." The record does not contain any evidence
from Respondent which impeaches or contradicts Gadway•s
testimony . Based upon his testimony, I conclude that since two
of the oxygen cylinders lacked valve covers, Respondent did
violate section 56.16006 supra.
Since the lack of valve covers was observed by Gadway, it is
likely that this condition was obvious. However, there is no
specific evidence in the record to indicate how long this

1137

condition existed until it was noted and cited by Gadway. I thus
conclude that the violation herein did not result from any
aggravated conduct on the part of Respondent. Hence, I find that
the violation was not as a result of Respondent's unwarrantable
failure . (See, Emery , supra).
According to Gadway, the unsecured oxygen cylinders could
have been easily knocked over. He indicated that, since there
were not any va~ve covers on the cylinders, the impact of hitting
the floor could break the valves off. Gadway opined that in this
event, the cylinders would become "missile[s)", and a fatal
accident would be likely. Respondent did present any evidence to
impeach or rebut Gadway•s testimony in these regards.
Accordingly, I conclude that the violation herein was significant
and substantial (See U.S. Steel) . I find that a penalty of
$400.00 is appropriate for this violation.
III .
According to Gadway , when he made his · inspection he observed
a stationary grinder that lacked a peripheral hood. The hood
enclosed the grinding wheel in order to capture any fragments in
the event that the wheel bursts. Gadway indi cated that the
grinder also lacked an adjustable tool rest . He observed an
opening of approximately an inch and a half between the wheel,
apd the frame of the grinder . Gadway issued an order alleging a
violati on of 30 C.F.R. § 56.14115 which, as pertinent, provides
as follows: "Stationary grinding machines • • • shall be
equipped with (a) Peripheral hoods capable of withstanding the force of a
bursting wheel • •• ;
(b) Adjustable tool rests set so that the distance between
the grinding surf ace of the wheel and the tool rest is not
greater than l/8 inch • • •• "
Respondent did not specifically rebut or impeach Gadway's
testimony. Based upon his testimony I find that Respondent did
violate Section 56.14115 supra.
According to Gadway, McGee told him regarding the grinder,
that " · •• he tells Mr . Bokus, but he does nothing about it."
(sic) (Tr. 220). McGee who testified did not impeach or
contradict this testimony. Bokus did not testify to impeach or
rebut this statement. Hence, based upon the testimony of Gadway,
I conclude that the violation of Section 56 . 14115, supra resulted
from Responde?t's unwarrantable failure.
(See, Emery, supra.)

1138

Gadway characterized the violation as significant and
substantial. According to Gadway, fatalities have resulted
" · •• where the stone burst and went through the employee's
head." (sic) (Tr. 218) There is no evidence in the record
containing any description of any physical conditions present
which would have made it reasonably likely that an injury
producing event i.e. bursting of the wheel, or an operators
fingers being drawn into the wheel was reasonably likely to have
occurred. (See Mathies, supra . )
Accordingly, I conclude that it
has not been established that the violation was significant and
substantial. I find that a penalty of $500.00 is appropriate for
this violation.
IV.

Gadway also observed a wood stove located in the garage.
This stove was used to provide heat for employees . A 110 volt
electric fan was located next to the stove to circulate warm
air . According to Gadway, the cord supplying electricity to the
fan had a 1-1/2 inch bare spot in the insulation which was
located approximately 8 inches from the stove, and 4 feet above
the floor. He opined that the energized conductors were exposed
to physical contact by employees. He opined that in the event
that an employee came into contact with the exposed conductors,
he could be electrocuted. He issued an imminent danger order,
and an accompanying citation alleging a violation of
30 C.F.R. § 56.12030.
According to Gadway, he issued an imminent danger order
because of the following factors: the existence of a bare
energized wire; the lack of a fitting where the wire entered the
fan which could cause the wire to rub against the metal frame and
short out; and the lack of any ground wire which could result in
the stove becoming energized. He concluded that if a person
would have inadvertently touched the stove, he would have been
electrocuted.
Section 107(a) of the Act provides as follows:
If, upon any inspection or investigation of a
coal or other mine which is subject to this
Act, an authorized representative of the
Secretary finds that an imminent danger
exists, such representative shall determine
the extent of the area of such mine
throughout which the danger exists, and issue
an order requiring the operator of such mine
to cause all persons, except those referred
to in Section 104(c), to be withdrawn from,
and to be prohibited from entering, such area
until an authorized representative of the

1139

-s·ecretary determines that such imminent
danger and the conditions or p·r actices which
caused such imminent danger no longer exist.
The term "imminent danger" is defined in Section 3(j) of the
Act to mean "· •• the existence of any condition or practice in
a coal or other mine which could reasonably be expected to cause
death or serious physical harm before such condition or practice
can be abated.-:'' 30 u.s .c. § 802(j).
To support a finding of imminent danger, the inspector must
find that the hazardous condition has a reasonable potential to
cause death or serious injury within a short period of time. An
inspector abuses his discretion when he orders the immediate
withdrawal of a mine under Section l07(a) in circumstances where
there is not an imminent threat to miners. Utah Power-..·& Light
Co., 13 FMSHRC 1617 (1991).
Within the framework of the above s~arized evidence, and
based on Gadway's testimony that I accept, I conclude that he did
not abuse his discretion, and that the imminent danger order was
properly issued.
In addition, Gadway cited Respondent with a violation of
30 C.F.R. § 56.12030 which provides as follows: "When a
potentially dangerous condition is found, it shall be corrected
before equipment or wiring is energized." As indicated above,
there not any contradiction or impeachment of Gadway's testimony
regarding the lack of insulation on the cord supplying electric
to the fan being used to circulate warm air. I thus find that
Respondent did violate Section 56.12030 as cited. Further,
within the framework of the above summarized evidence, I conclude
that the violation was significant and substantial. (See
Mathies, supra . ) I find that a penalty of $550 is appropriate
for this violation.
ORDER

It is ordered as follows:
(1) Order No. 3593042 be amended to a Section 104(a}
citation.
(2) Order No. 359~752 be amended to indicate a violation
that is not significant and substantial.

1140

(3)
30 days

Resp9ndent shall pay a civil penalty of $2,000 within
of thi$ decision.

vram Weisberger
Administrative Law Judge
Distribution:
William G. Staton, Esq., Office of the Solicitor, u.s. Department
of Labor, 201 Varick street, New York, NY 10014 (Certified Mail)
William J. Bokus, President, W. J. Bokus Industries, Inc . , Inc.,
30 Mill Road, Greenfield Center, NY 12833 (Certified Mail)
/efw

1141

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

MAY 1 8 1994
THUNDER BASIN COAL COMPANY,
Cqntestant

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

v.
THUNDER BASIN COAL COMPANY,
Respondent

CONTEST PROCEEDING

..
.
.
.
..
..
..
:

Docket No. WEST 94-148-R
Citation No. 3589022; 11/22/93

CIVIL PENALTY PROCEEDING
Docket No. WEST 94-303
A. C. No . 48-00977-03524

.
:

Black Thunder Mine

SUMMARY DECISION

Before:

Judge Amchan

The instant case is before me upon cross-motions for summary
decision. The issue is whether contestant, Thunder Basin Coal
company, violated section 109(a) of the Federal Mine Safety and
Health Act in failing to post on its mine bulletin board the
Order of Temporary Reinstatement issued by the undersigned in
Commission Docket No. WEST 93-652-D. For the reasons stated
below I grant summary decision in favor of Contestant .
Factual Background
on November 2, 1993, I issued an Order of Temporary
Reinstatement in Commission Docket No. WEST 93-652-D, 15 FMSHRC
2290. This order was predicated on my findings that the
discrimination complaints of Loy Peters, Darryl Anderson, and
Donald GregoryJ who were laid off by Thunder Basin in July, 1993,
were "not frivolous." I also found that the Secretary of Labor's
decision to seek temporary reinstatement for these employees was
"not frivolous."
On November 22, 1993, MSHA Inspector James Beam was assigned
to conduct an inspection of the Black Thunder Mine as a result of
a written complaint filed pursuant to section 103(g) of the Act.
1142

This complaint-alleged that Thunder Basin had failed to post the
temporary reinstatement order (Affidavit of Larry Keller,
paragraph 3, Affidavit of Jerry W. stanart, p aragraph 2). The
order had, in fact, not been posted and Beam issued Thunder Basin
citation number 3589022, alleging a violation of section 109(a)
of the Act.
After some discussion, the entire order was posted
(Affidavit of Willlam s. Mather, paragraph 2). Beam was asked
how long the order had to be posted and replied, "long enough for
me to see it up . " The order remained on the company bulletin
board for several days (Mather Affidavit, paragraph 3).
Issue Presented
Does Section 109(a} of Federal Mine Safety and Health ··Act
require an operator to post on the company bulletin board an
Order of Temporary Reinstatement?
Analysis and Conclusions
Section 109(a} provides:
At each coal or other mine there shall be maintained an
off ice with a conspicuous sign designating it as the
off ice of such mine. There shall be a bulletin board
at such off ice or located at a conspicuous place near
an entrance of such mine, in such manner that orders,
citations, notices and decisions required by law or
regulation to be posted, may be posted thereon, and be
easily visible to all persons desiring to read them,
and be protected against damage by weather and against
unauthorized removal. A copy of any order, citation,
notice or decision required by this Act to be given to
an operator shall be delivered to the office of the
affected mine, and a copy shall be immediately posted
on the bulletin board of such mine by the operator or
his agent.
The Secretary contends that the language of the statute is
clear on its face and that resort to rules of statutory
construction is unnecessary. At first blush the language of the
last sentence of section 109(a} appears determinative . When the
statute refers to "decisions required by this Act to be given to
an operator", the Secretary argues this can only refer to
decisions of the Commission and its judges .
Nevertheless, I agree with Contestant, and conclude that
section 109(a} is not clear on its face and that the last
sentence must be read in the context of the rest of the section .
Had Congress intended that all decisions, orders, citations and
notices be posted, it would not have modified the second sentence

11 43

. ...
of section 109(a) with the phrase "required by law or regulation
to be posted."
• ....

The Secretary, at page 4 of its brief in support of its
motion for summary judgment, concedes that "it is not asserting
that every document generated during the course of litigation
must be posted, instead only those documents that evidence a
final decision -of the Court must be posted." Since any order
issued by a Commission judge during the course of litigation,
i.e. prehearing orders, notices of hearing, and discovery orders
must be given to the operator, even the secretary seems to
realize that the last sentence of section 109(a) must be read in
the context of something else.
The "something else" is the second to last sentence··· of
section 109(a) which requires the operator to maintain a bulletin
board for orders, citations, notices and decisions required by
law or regulation to be posted. Thus, I conclude that what must
be posted under the last sentence of section 109(a) are
documents, that are required to be posted pursuant to another
statutory provision or by a regulation, such as 30 C.F . R . § 40.4,
requiring posting of an employee walkaround designation, or
30 C. F.R. § 44.9, requiring posting of petitions for modification
of a standard.
I agree with Contestant that the fact that section 109(a)
gives no indication as to how long a document must be posted is a
further indication that it is not a free-standing requirement to
post all the documents mentioned. In contrast to MSHA, the
Occupational Safety and Health Administration (OSHA} has
promulgated regulations requiring citations to be posted for 3
working days or until abatement is completed, whichever is later,
29 c.F.R. § 1903.16(b). OSHA also promulgated a regulation at 29
C.F.R. § 1903.2 requiring the perpetual display of a poster
explaining employee rights and obligations. I conclude that
Congress contemplated promulgation of similar regulations by MSHA
pursuant to section 508 of the 1969 Mine Act, 30 u.s.c. § 957.
The Secretary's "interpretation" of section 109(a) is not
entitled to deference.
It is well established that courts should defer to
permissible agency interpretations of ambiguous legislation.
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 us 837, 843, 81 L Ed 2d 694, 104 s Ct 2778 (1984). Not all
agency interpretations are entitled to the same weight. An
interpretation that has gone through notice and comment
rulemaking is entitled to greater deference than one which has
not. An interpretative rule that appeared in the Federal
Register is entitled to greater deference than an interpretation
that appears only in agency internal documents.

1144

Farther -down the hierarchy of agency interpretations are
those immaculately conceived in the course of litigation.
Professors Kenneth Culp Davis and Richard J . Pierce, Jr., have
expressed this idea as follows:
Congress has not delegated to any agency the power to make
policy decisions that bind courts and citizens through
formats like letters, manuals, guidelines, and briefs. No
court should allow an agency to bind citizens or courts by
applying Chevron step two to agency policy decisions
announced in formats Congress has not authorized for that
purpose. Statements in such informal formats may not even
represent the agency's choice of policies. statements of
agency lawyers in briefs and oral arguments are particularly
unreliable evidence of an agency's policy, given the
powerful incentive for lawyers to take any position that is
likely to further their clients interests in a case ·and the
uneven level of supervision of the work product of agency
lawyers. I Davis, Kenneth Culp and Pierce, Richard J. Jr . ,
Administrative Law Treatise, §3 . 5 at paqe 120 (3d ed. 1994).
Justice White, dissenting in National Railroad Passenger
Corporation v. Boston & Maine Corp . , 503 US
, 112 s. Ct. 1394,
118 L . Ed 2d 52, 70, 72 (1992), observed that deferring to a
federal agency's construction of the legislation it is charged
with administering is one thing, but deferring to the post-hoc

rationalization of a government lawyer is another matter
entirely. The undersigned has the same reservations towards the
interpretation of MSHA policy in this case .
There is no written MSHA policy or interpretation regarding
the posting of Commission judge's decisions, including temporary
reinstatement orders . The only evidence of such an
interpretation or policy is the affidavit of supervisory coal
mine inspector Larry Keller, which is attached to the Secretary's
motion for summary decision. Mr . Keller states in paragraph 6
that he has always construed section 109(a) to require posting of
judge's decisions. There is no indication from where his
understanding arises and, indeed, no indication that Mr. Keller
ever considered the issue before. Indeed, I suspect that Mr.
Keller never thought much about this issue until confronted with
the section 103(g) complaint in this case .
I also believe that it would be a mistake to ignore the
context in which the instant case arose, before deferring to the
Secretary's "interpretation" of section 109(a). This citation is
but another episode in the continuing struggle between Thunder
Basin and the United Mine Workers regarding the unionization of
its mine, and between Thunder Basin and MSHA regarding
contestant's refusal to recognize the designation of UMWA
employees as miners' representatives under 30 C.F.R. Part 40, 15
FMSHRC 2290-2291. Given this context it is not surprising that,

1 14 5

upon receipt of ·tne· s ·e ction 103 (g) complaint in this case, MSHA
would conclude that posting of the temporary reinstatement order
was required by section 109(a).
I conclude that there is no agency "interpretation" to which
deference must be paid. A subjective understanding of what the
statute requires, which is not obvious and has never been
communicated to the public, is not an agency interpretation
entitled to dererence under Chevron.
Even if Judges' decisions must be posted, there is no requirement
under section 109(a) that a temporary reinstatement order be
posted.
A temporary reinstatement order does not constitute a
determination that a violation of the Act has occurred : ·· It is
merely a finding that the complaint of discrimination is not
frivolous and enables the complainant to endure the litigation
process without economic loss .
In this sense a temporary reinstatement order is much more
in the nature of an interim order than a judge's decision. As
the Secretary concedes that not every interim order of a judge
during the course of litigation need be posted, I conclude that a
temporary reinstatement order need not be posted even if section
109(a) requires the posting of final judge's decisions.
The secretary argues that posting of temporary reinstatement
orders is the means by which employees learn that they too can be
protected if they chose to exercise their rights pursuant to the
Mine Act (Keller affidavit, page 2, paragraph 2). This may be so
but miners wouldn't have to rely on temporary reinstatement
orders or judge's decisions if the MSHA exercised its authority
under section 508 of the Act, 30 U.S.C. § 957, and promulgated
regulations requiring the posting of appropriate notices
regarding employee rights .
In this vein, I again note that the Occupational Safety and
Health Administration has promulgated a regulation requiring
employers to post a notice informing employees of their rights
under the Act, including their right not to be discriminated
against. 29 C.F.R. § 1903 . 2 , BNA Occupational Safety and Health
Reporter 27:1211.

1146

Conclusion
For the reasons stated herein I grant Thunder Basin's motion
for summary decision and vacate both citation number 3589022 and
the penalty proposed for that alleged violation.

Ort£~£-~~

Arthur J. Amchan
Administrative Law Judge
Distribution:
Margaret Miller, Esq., Office of the Solicitor, U.S . Dept. of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716 -·(Certified Mail)
Russells. Jones, Esq., Thomas F. Linn, Esq., Atlantic Richfield
Company, 555 Seventeenth Street, 20th Floor·; Denver, co 80202
(Certified Mail)
/jf

1147

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
· DENVER, CO 80204-3582
(303) 844-5267/FAX (303) 844~5268

MAY 2 3 1994
KENNETH D. KELLAR,
. Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 93-136-DM
WE MD 92-31

v.

Lytle Creek Mine

OWL ROCK PRODUCTS,
Respondent

DECISION
Appearances:

Kathryn A. Kellar, Lucerne Valley, California,
pro se, for Complainant;
Patrick J . Brady, Esq., ALLEN, MATKINS, LECK,
GAMBLE & MALLORY, Irvine, California,
for Respondent.

Before:

Judge Morris
STATEMENT OF THE CASE

This proceeding concerns a complaint of alleged discrimination filed with the Commission by complainant against Respondent
pursuant to Section 105(c) (3) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq. (the "Act").
Complainant Kenneth D. Kellar, age 41, was employed by Owl
Rock Products, Inc. {"Owl Rock") on October 21, 1989, and terminated August 6, 1992.
(Tr. 27, 28). In the course of his employment, he complained to supervisors and to the Department of
Labor, Mine Safety and Health Administration ("MSHA") over safety
and non-safety related issues. The evidence also deals with his
job activities.
The Complainant filed his initial discrimination complaint
with MSHA. A·fter completion of its investigation, MSHA advised
the Complainant that the information received during the investigation did not establish a violation of Section 105(c) of the
Act. Thereafter, the Complainant filed a complaint with the
Commission .

1148

Owl Rock filed an answer denying any discrimination and asserting that. it automatically terminated Complainant after two
consecutive ·ttD" ·· job ·performance ratings.
A hearing on the merits commenced on September 14, 1993, in
Victorville, California. complainant did not file a post-trial
brief; Owl Rock filed a brief.
Section 105(c) (1) of the Act provides, in part, as follows:
No person shall discharge or in any manner discriminate ag'a inst or cause to be discharged or cause discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, representative of miners or applicant for employment in any
coal or other mine subject to this Act because such
miner, representative of miners or applicant for employment in any coal or other mine subject to this Act
because such miner, representative of miners or applicant for employment, has filed or made a complaint
under or related to this Act, including a complaint
notifying the operator or the operator's agent, or the
representative of the miners at the coal or other mine
of an alleged danger or safety or health violation in
a coal or other mine or because such miner, representative of miners or applicant for employment is the
subject of medical evaluations and potential transfer
under a standard published pursuant to section 101 or
because such for employment has instituted or cause to
be instituted any proceedings under or related to this
Act or has testified or is about to testify in any
such proceeding, or because of the exercise by such
miner, representative of miners or applicant for employment on behalf of himself of others of any statutory right afforded by this Act.

JURISDICTION

Owl Rock is a ready-mix sand and gravel plant operating in
four counties in Southern California.
No issue is raised as to jurisdiction.
APPLICABLE CASE LAW

The general principles governing analysis of discrimination
cases under the Mine Act are settled. In order to establish a
prima facie case of discrimination under Section 105{c) of the
Mine Act, a complaining miner bears the burden of proof to establish 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 Fasula v. Consolidation coal Co.,
2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds
sub nom., Consolidated Coal Co. v. Marshall, 663 F.2d 1211 (3d
Cir. 1981); Secretary on behalf of Robinette v. United Castle

1149

coal co., 3 FMSHRC 803, 817-818 (April 1981). The operator may
rebut the prima facie case by showing either that no protected
activity occurred or that the adverse action was in no part motivated by protected activity. If the operator cannot rebut the
prima facie case, it nevertheless may defend affirmatively by
proving that it also was motivated by the miner's unprotected
activity and would have taken the adverse action in any event for
the unprotected activity alone. Pasula, supra; Robinette, supra;
see also, Eastern Assoc. Coal corp. v. FMSHRC, 813 F.2d 639, 642
{4th cir . 1987);- Donovan v. Stafford Construction co., 732 F.2d
954, 958-959 (D.C . Cir. 1984) Boich v . FMSHRC, 719 F.2d 194, 195196 (6th Cir. 1983) {specifically approving the Commission's
Pasula-Robinette test). Cf. NLRB v. Transportation Management
Corp., 462 U.S. 393, 397-403 {1983) {approving nearly identical
test under National Labor Relations Act).
Secretary on behalf of Chacon v. Phelps Dodge Corp.,.. 3
FMSHRC 2508, 2510-2511 (November 1981}, rev'd on other grounds
sub nom., Donovan v. Phelps Dodge Corp., 709 F.2d 86 {O.C. Cir.
1983); Sammons v. Mine Services Co . , 6 FMSHRC 1391, 1398-1399
(June 1984). As the Eighth Circuit analogously stated with
regard to discrimination cases arising under the National Labor
Relations Act in NLRB v . Melrose Processing Co . , 351 F.2d 693,
698 {8th Cir . 1965):
It would indeed be the unusual case in which the link
between the discharge and the protected activity could
be suppli ed exclusively by direct evidence . Intent is
subject ive and i n many cas es the discrimination can be
proven only by the use of circumstantial evidence.
Furthermore, the (NLRB) is free to draw any reasonable
inferences.

Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of the protected activity;
coincidence in time between the protected activity and the adverse action complained of; and disparate treatment of the complaining miner by the operator.
In Bradley v . Belva Coal Company, 4 FMSHRC 982, 993 (June
1982), the commission stated as follows:
As we emphas i zed in Pasula, and recently re-emphasized in Chacon, the operator must prove that it would
have disciplined the miner anyway for the unprotected
act i vity alone. Ordinarily, an operator can attempt
to demonstrate this by showing, for example, past
disc i pline consistent with that meted to the alleged
discriminatee, the miner's unsatisfactory past work
record, prior warning to the miner, or personnel rules
or prac tices forb i dding the conduct in question. Our
function is not to pass on the wisdom or fairness of

1150

such .asserted business justifications, but rather,
only--to determine · whether they are credible and, if
so, whether they would have motivated the particular
operator as claimed.

XS COMPLAINANT'S CLAIM BARRED AS A MATTER OP LAW
BASED UPON THE RULING OP TBE APPEALS GRIEVANCE COMMITTEE?
As a threshold matter, Owl Rock asserts Complainant's case
is barred as a matter of law.
Complainant appealed the August 1992 "D" evaluation which
resulted in his termination, and the grievance committee upheld
the evaluation by a 4-0 Decision.
(Tr. 635, 636). Therefore,
Owl Rock argues that, as set forth in the recent United States
District Court decision of Delaney v. Continental Airlines, SACV
92-762 (June 1993), the ruling by the grievance committee ..operates to entirely bar Complainant's claim.
In the Delaney case, Continental Airlin~s maintained a
grievance appeal procedure similar to Respondent's appeal procedure whereby a committee of individuals hears evidence from the
aggrieved employee and company supervisors, and renders a decision which is "final and binding." In fact, it is argued that
Owl Rock's appeal procedures are even fairer to employees than
the procedures in Delaney, because Continental Airlines' committee was composed of only three executive level employees whereas
Owl Rock's procedures provide for a more diverse and representative committee made up of two co-employees selected at random,
two totally uninterested supervisors, and one human resources
representative (who only acts as a tie-breaker if needed).
(Tr . 6 2 6 , 6 2 7 ) .
After analyzing Continental Airlines' appeal process, and
the strong presumption favoring upholding of such grievance committee rulings, the District Judge held that:
The arbitration award is given the same legal effect
as a judgment. Therefore, Delaney's present action
must be dismissed in its entirety because none of the
claims survives the arbitration award's issue preclusive effect."
(Delaney Decision, p . 3).

Accordingly, Owl Rock asserts Complainant's claim should
equally be barred because Complainant availed himself of owl
Rock's final, binding, and fair appeal procedures which upheld
his second "D" evaluation.
I am unable to agree that Complainant is barred by the arbitration decision. such a decision can be considered but it
does not act as an absolute bar to a discrimination suit. Hollis

1151

v. Consolidation coal Co., 6 FMSHRC 21, 26-27 (January 1984);
Casebolt v •. Fal.c~n Coal Co., 6 FMSHRC 485, 495 (February 1984).
The case at bar deals with the Federal Mine Safety Law.
Delaney construes California law relating to arbitration.
Accordingly, Owl Rock's motion for a summary decision is
DENIED.
SUMMARY OP EVIDENCE
At the time Mr. Kellar was hired, the company was engaged in
a labor dispute with the Operating Engineers Union, and a large
number of new employees were hired when the union went on strike.
(Tr . 604).
Mr. Kellar lacked mining experience but for 19 yea+.? he had
been a warehouse person and a steelworker.
(Tr. 29, 264). He
initially was assigned to Owl Rock's mine in Prado, California.
After a week, he was transferred to the owl Rock mine in Barstow,
California. He worked there first as a repairman welder and
later bid for a bulldozer operator position.
(Tr. 28, 265). He
bumped over to the company's Lytle creek operation on January 6,
19 9 2 .
(Tr • 2 9 5 , 61 7 ) .
Although there were no significant problems with Mr. Kellar's job performance after his employment began, he was at times

a difficult employee who had trouble getting along with others .
(Tr. 146, 199).

'

In 1990, Mr. Kellar was working on a guard on the head pulley on the wet side of the shaker. Mr . Kellar did as he was told
by his supervisor Bob Kelley.
(Tr. 30-32). However, he was unable to affect the repair . Bob Kelley said to leave the guard
off and "he would look at it on his way home."
(Tr . 32). Before
the guard was replaced, MSHA cited owl Rock.
(Tr. 33).
Company representatives Dan Scorza, Dave Tompkins, and Bob
Kelley (or Vince Bommarito) held a "mock" MSHA meeting. When
Dave Tompkins got an answer he thought was a good one, he would
say, "That's the kind of answer you need to put in there."
(Tr. 33) .
Mr. Scorza later testified that employee Ferman Romero
didn't tell the MSHA Inspector the truth as to when the guards
were removed . They sat down and explained it was not necessary
to give false statements on owl Rock's behalf .
(Tr. 610).
Mr . Romero confirmed the company version of this incident.
Mr. Romero testified he had "lied" to the MSHA Inspector. The
meeting was held to tell the workers what to expect in the way

1152

of questions~. .. Mr.. Romero agrees the company also told them to
tell the truth to the Inspectors.
(Tr. 514, 519, 520).
At the MSHA investigation, Mr. Kellar stated that, "Bob
Kelley told me to leave the guard off."
Bob Kelley "got distant" after that and had no time for
Mr. Kellar.
(Tr. 34-35). He was too busy to give Mr. Kellar
any help. Kell&y was transferred to Victorville and was succeeded by Vince Bommarito who had no mechanical or repair experience.
(Tr. 37).
There was hardly any time for safety precautions at Owl
Rock. However, after the MSHA investigation, safety was no
longer lax.
(Tr. 40).
Dave Tompkins held Mr . Kellar directly responsible because
the safety work wasn't being done. Mr. Kellar was the maintenance man.
(Tr . 40, 48}.
At Lytle Creek Mr. Kellar's duties included writing mechanical reports on Owl Rock equipment.
(Exhibit c-2 consists of 137
such mechanical reports.} on the pink sheet for October 31,
1991, Mr. Kellar did not identify any mechanical defects but on
the back of the report he wrote the following:
"Bob Kelley says
not to put so much on the reports cause Tommy [Craig) work [sic)}
alone and this is only temp so I don't need to be filling these
out."
(Exhibit c-1 is page 76 of Exhibit c-2; Tr. 47-49).
On January 9, 1992, as to Equipment No. 8220, various mechanical defects were noted and on the back of the pink slip
Mr. Kellar wrote:
"Brian Sterling says that this can get me in
the same kind of trouble like at Barstow."
(Ex. c-2, p. 77; Tr .
53). This bothered Mr. Kellar because he had started complaining
about the safety of the crane (Equipment No. 8220}.
(Tr. 53).
Concerning the writing on the pink slip, I credit Mr. Brian
Sterling's contrary testimony. He testified he didn't know where
the statement [attributed to him] came from.
His testimony,
which I find credible, basically denies any knowledge of what
might have happened to Mr. Kellar at Barstow. Mr. Sterling
testified as follows :
At the time when Ken Kellar came to the plant, I
went through what I normally went through with any
o t her employee that came in. Everything was the same .
At that time he seemed very concerned that he tell
me and give me his side of the story of what problems
he had in Barstow, and he wanted to make sure that I
got his side of this story.

1153

The thing was I had never heard the story, and I
wasn't interested in the story. I had no contact with
any of the supervisory personnel at Barstow. I didn't
even know who they were, I had never met any of them.
I had never had any discussion about the Barstow
plant; I was unfamiliar with it; I was unaware of
where it even was.
And so, I told him, "No, I don't care what your problems wei:e. I don't need to hear your side of it because I haven't heard anything about it at all. I
will take your performance here at this plant and my
evaluation of you, and how you do here will be based
strictly on what your performance is here. And what
happened at Barstow is in the past. I'm not concerned
with it. I don't want to know about it. Let's just
go out there. You're starting with a clean slate
here."
You know, I'm not going to form my conclusion on
each person that comes under my control by myself. I
don't want all this feedback ahead of time to give me
some coloration because it might be totally different.
I have had people come to my plant that I found out
later were considered to be very poor employees somewhere and have turned out to be outstanding employees
for me. And I'm sure vice versa. People that maybe
didn't work real well for me might have worked quite
well for someone else.
But I did tell Mr. Kellar I didn't want, I wasn't
concerned with, I didn't want to hear about it. And
that was the end of the discussion, and we went ahead
and sent him out to get his familiarization with the
plant, and we moved out from there. (Tr. 819-821).

The first time he heard about Mr. Kellar's problems (except
through him) was when he had to give him his evaluation prepared
by Barstow supervisors. Mr. Sterling had no real input into that
evaluation.
(Tr. 825).
All of the mechanical reports (pink sheets) were given to
the MSHA Inspectors.
(Tr. 50). In addition, during the MSHA
investigation, owl Rock's safety man and Dan Scorza (Human Resources Manager) said it was alright for Mr. Kellar to keep a
copy of the reports. However, Mr. Kellar described his conversation with management as "argumentative." "MSHA said I could
record i t and keep the record in my possession."
(Tr. 51, 53).
Rob Reid also told Mr. Kellar to quit filling out the mechanical forms. This was described by Mr. Kellar as "argumentative conversat~on" with management.
(Tr. 52, 53).
Mr. Kellar also frequently complained about other safety and
non-safety issues from almost the beginning of his employment.
With respect to safety issues, he complained at the Barstow Mine
to different levels of supervisors about a crane, inadequate

1154

lighting, fireaJ;.1lls_, .. .~ . head pulley, a deck, welding in water,
hanging plates, of being overworked, of inju~ies, and other
matters.
(Tr. 110, 271, 274, 278-282).
concerninq the crane: the equipment had a dry cable and it
would fall six to eight inches with a load. No effort had been
made to grease it and a new cable was needed.
(Tr. 110, 354,
355). The cable also had no load capacities and no stickers.
(Tr. 355). Mr. Kellar told supervisors Kelley, Bommarito, and
Tompkins about the · crane.
(Tr. 110, 355). The crane at Barstow
was a constant safety issue.
(Tr. 499, 754). 1 Mr. Kellar told
MSHA the crane was unsafe and it was red-tagged when he complained about it in front of MSHA.
(Tr. 111).
concerninq inadequate liqhtinq: Mr. Kellar didn't know the
dates but he complained continually about the lights in the pit
after he went on the night shift .
(Tr. 271). This was before
the PVC and electrical disconnect incidents.
(Tr.273). In response to the inadequate lighting complaint, the company hooked
up a light bar and purchased drop lights. 2
concerninq the firearms: Mr. Kellar confronted Supervisor
Bob Kelley about company employees shooting firearms adjacent to
company property. A bullet can ricochet and there were residences within one-quarter of mile. This occurred once or twice a
week.
(Tr. 91-94).
Witness De Forge testified that he, Bob Kelley, Dave Fortin,
and Vince Bommarito, were shooting on property not owned by Owl
Rock. The shooting was after working hours and before dark.
(Tr. 147). This was not a sanctioned gun range; however, it was
used by the local sheriff's department.
(Tr. 148, 161).
Firearms are forbidden on company property but others who
brought them on company property didn't discharge them during
working hours.
(Tr. 169, 400, 440). Exhibit C-13 was marked by
Mr. Kellar to show the gun range. (Tr. 561).
concerninq the head pulley: Rob Reid asked Mr. Kellar to
grease the head pulley on the radial arm stacker. Extension
ladders were available as the head pulley was 32 feet above
ground.
(Tr. 849) . Mr . Kellar refused the request by both

I find Mr. Kellar's uncontroverted testimony of complaints about the
crane to be credible. The testimony is supported by fellow workers Faust and
Romero.
(Tr. 499, 537-538).
2

I find the uncontroverted evidence by Mr .
inadequat e lighting to be credible.

1155

Kellar concerning the

Messrs. Reid and . S~erling. Mr. Reid testified that he was not
aware that Mi:-:· Kellar had called MSHA. No one from MSHA ever
talked to him about it.
(Tr. 130, 132, 794, 795).
Mr. Reid felt that Mr. Kellar was a qualified maintenance
mechanic. Greasing the head pulley should have been no problem.
(Tr. 850) •

concerninq the deck: The deck was a replacement which replaced an old Cedar Rapids with a new LJ and also replaced the
old cantilevered deck made out of two-inch channel.
About the time of the first MSHA discrimination investigation or along about that time, Mr. Kellar raised a concern that
the deck was not being fully welded.
Mr. Kelley had a subcontractor inspect it. He said it was
adequately welded but Kelley told him to put a weld anyplace he
could.
(Tr. 721-722).
An employee, who the company believes to be Mr. Kellar,
filed an OSHA complaint about the deck. An engineering study was
done . The engineer said the deck was more than adequate and
probably three times overbuilt. The engineer said it did not
have to be 100 percent welded nor did the cross-ties.
(Tr. 724).
OSHA did not issue any citations.
(Tr. 725).
Concerning welding under wet conditions: On one occasion,
Mr. Kellar was working on a conveyor when the water was turned on
in the plant. After being shocked, Mr. Kellar refused to work.
(Tr. 127).
Mr. Kellar talked about the incident at safety meetings;
everybody complained. Mr. Marlo replied that " A little shock
won't hurt you." This is a common pun in the welding industry.
(Tr. 461) .
When Rob Reid testified, he denied directing Mr. Kellar to a
specific location before turning on the water. When the water is
turned on, there are areas where it can run down.
(Tr. 797).
According to Mr. Reid, there are times when a welder has to get
wet. Mr. Reid would try to prioritize the job so it didn't have
to be done in adverse weather conditions.
(Tr. 798). If the
welder is not using DC reverse polarity, it is not unsafe to weld
in wet conditions. (Tr. 797; Ex. 4).
Hanging heavy screens (plates) and injuries: This incident
occurred April 10, 1991, while four or five men were sheeting a
building. The wind was blowing in 45-mile per hour gusts.
Mr . Kellar's previous experience was that workers do not sheet in
such wind.
(Tr. 335, 364). Mr. Kellar confronted Foreman Todd

1156

Craig who contacted yince Bommarito. Mr. Bommarito stated they
should either....do the job or he'll get someone that will.
Mr. Kellar took that to mean his job was ori the line.
(Tr. 364).

Mr. Bommarito testified and claimed the windy conditions
were not a safety issue. If they could not get the job done, the
company would hire a subcontractor to do the work.
(Tr. 870).
[The eviden~e is uncontroverted that the workers all complained about the windy conditions whole hanging the plates.
This was an activity protected under the Mine Act.]
A secondary issue involves whether Mr . Kellar was injured
when he was struck by an SO-pound plate. Mr. Kellar claims that
one of the plates struck him flat on the back.
(Tr . 364).
However, Mr. Bommarito testified that Mr. Kellar told him he
had "staged" the incident. He stated he had seen the plate moving about six times. He lined up so that if the plate flopped
over it would hit him.
(Tr. 871, 873).
Witnesses Romero and Craig stated they didn ' t see the plate
strike him, but Mr . Kellar complained of being injured. If a
worker reported an injury, it was held against him in his evaluation.
(Tr. 243, 506, 507).
supervisor Kelley also testified that Mr. Kellar stated he
had "staged out" the incident of being struck by the plate. As a
motive he told Kelley he wanted to "get to" Vince [Bommarito) and
"worry him."
(Tr . 717) .
[I credit the unrebutted testimony of witnesses Bommarito
and Kelley on this issue. Their unrebutted testimony is supported by the fact that Mr. Kellar declined to see a doctor.. )
In the conversation that followed Vince Bommarito's redirection concerning the plates, Elbert Evans told Mr. Kellar they
could either work now and grieve later, or call MSHA, or they
could go home. Messrs. Byron and Evans went back to work on the
screens .
(Tr . 764).
Elbert Evans also testified concerning the plate incident.
Based on his experience and in reviewing Exhibit T, he concluded
that the accident to Mr. Kellar could not have happened as
claimed.
(Tr. 764-766) .
The day following the alleged back injury, Mr. Kellar came
in very angry and told Mr. Bommarito that he had endangered his
life and he wanted to go home. However, he did not want to see a
doctor.
(Tr. 870, 871).

1157

The next job performance evaluation for Mr. Kellar was in
September 199-f. · At that time Mr. Kellar's score was a "30". In
the safety category he dropped from an "S" ·to a "1". Under the
safety category were noted the electrical disconnect, the PVC
pipe (infra) as well as the injury to his finger and back. For
the evaluations, definitions, rating criteria, and performance
levels, see Tab E in Respondent's trial exhibits.
(Tr. 664).
Tab E includes evaluations of Mr. Kellar dated February 14, 1991;
September 1991; ¥ebruary 13, 1992; June 11, 1992, and June 12,
1992; and August . 5, 1992. The Owl Rock process also allows a
self-evaluation by the employee involved. The self evaluation by
Mr. Kellar-- (a "C") --was dated August 12, 1992.
(Tr. 664) •
Mr. Kellar testified his second injury occurred when he was
repairing a ten-inch hose. Pressure caused him to catch his
finger between the hose and the barbed fitting.
(Tr. 135, 365).
Complaints of overwork: Mr. Kellar complained to Rob Reid
that there was too much work for the crew.
(Tr. 41, 815, 816).
Brian Sterling testified that when employees were overworked,
they'd hire subcontractors, especially on project work.
(Tr. 818) .
Other incidents: On one occasion during a heavy rain,
Mr. Kellar told the company he was going home. He was docked
three hours but the other crew behind Mr. Kellar was not docked.
(Tr. 132, 133). Mr. Kellar stated that not everyone is treated
fairly. The continuation of the heavy rain or lack of it was not
established. I am unable to conclude that this minimal evidence
establishes discrimination.
Mr. Kellar complained to Vince [Bommarito] when he was told
to drive a truck without a clutch. He ended up driving the truck
that night. Karl Byron drove it for almost a week without a
clutch. Mr. Kellar had already told the company that he didn't
want to be a part of the team but he would be a good employee.
(Tr. 108, 109) .
Other incidents included the presence of rocks on the catwalks. This condition, according to witness Barnes, was brought
up at safety meetings. This was a protected activity but it adds
little to the case.
(Tr. 452).
Incidents involving burying oil and the use of safety
glasses fail to add any dimension to the case.
(Tr. 466, 467,
510, 551-553, 561-562).
Mr. Kellar also raised numerous complaints which were
unrelated to safety and which he would escalate into disputes
requiring excessive management time to resolve. Mr. Kellar's
general approach was to be very combative and not accept any
resolution until he had involved other supervisors and often the

1158

corporate Human Resources manager. For example, these instances
involve marking time cards, the cigarette incident, the crowbar
fabrication, the flex-cose and belt clamp incidents.

concerning marking time cards: Mr. Kellar refused to fill
in the job code number in pencil on his time card in accordance with Owl Rock's standard procedure.
(Tr. 713). He told the
dispatcher it was- illegal; however, internal billing procedures
require a correct· job number.
(Tr. 714). The issue had nothing
to do with safety.
(Tr. 715).
Mr. Kellar was not satisfied with the explanation he received from his immediate supervisor concerning this procedure
and he only acquiesced to the company's request after meetings
with two highest management representatives in the district.
This required approximately 10 hours of management time . ...
(Tr • 7 13 - 715 ) •
concerning the "cigarette incident":
·This involved Messrs.
Kellar and Bommarito and different versions of what occurred.
According to Mr. Bommarito, once in a while Mr. Kellar would offer him a cigarette. Occasionally, Mr. Bommarito would ask for a
cigarette. On one occasion, Mr. Kellar was doing some welding.
His gloves were on and he had a stinger and a rod in one hand
when Mr. Bommarito asked for a cigarette. Mr. Kellar started to
put his gloves down and Mr. Bommarito said he would get them. He
then took the pack out of Mr. Kellar's pocket. Mr . Kellar then
put his gloves down, got his lighter out and lit the cigarette
for Mr. Bommarito . The two men went on with their conversation.
(Tr . 8 6 5 , 8 6 6 ) .
According to Mr. Bommarito, it was the next morning that
Mr. Kellar accused him more or less of breaking into his house
and getting involved in his personal property.
(Tr. 866).
Mr. Kellar testified that he and Mr. Bommarito were not
friends at all before this incident.
(Tr. 360, 361). Mr. Kellar
further stated that Mr. Bommarito asked for a cigarette and
Mr. Kellar reached for them. At this point Mr . Bommarito grabbed
the pack. This infuriated Mr. Kellar and he complained to Supervisor Bob Kelley. Mr. Kelley stated he was outside the chain of
command. Mr . Kellar said he needed a mediator. Shortly after
this incident the two men became friends and their attitudes

11 59

improved3 at~ .le_~st until Mr. Kellar thought Mr. Bommarito lied at
Mr. Kellar's grievance hearing.
(T. 361, .362).
concerninq the "crowbar fabrication": Supervisor Bob Reid
was in the office organizing the work for the evening's maintenance.
(Tr. 785-786). Mr . Dan Anaya, shift leadman, approached
and said Mr. Kellar was working the shop area and he should have
been conducting his plant inspection duties.
(Tr. 786-787).

-

Reid went to the shop area and Mr. Kellar said he was building a bar. Reid told him he should return to the plant and conduct his inspection duties.
(Tr. 786-787). Reid thought that
would be the end of it, but Mr. Kellar decided the leadman was
out of line in questioning him.
In short, no one should question
what he was doing.
(Tr. 788). There was a little more name
calling on Mr. Kellar's part. Later that morning, the :p)..ant
foreman arrived and Mr. Kellar complained about the way Reid
dealt with the problem; it was unfair.
(Tr. 788, 789).
Witness Barnes stated the crowbar involved a safety factor
because if they don't have proper tools, they can't do the job
safely. 4 (Tr. 479-480).
When Brian Sterling (plant foreman) came to the plant,
Mr. Kellar said people had accused him of wasting time because he
was preparing a tool to be used elsewhere on the shift.
(Tr.
830). Brian Sterling said he would check it out. It was decided
they would tell Mr. Kellar that management had made a mistake.
The matter took an additional hour and a half because Mr. Kellar
kept returning and inquiring why no one had faith in him and
would this incident affect his evaluation.
(Tr. 830, 831).
Mr. Sterling tried to calm him down but Mr. Kellar would not
"let go."
(Tr. 833).

3

While this was not a protected activity, I credit Mr. Bommarito's
versio n.
It is uncontroverted that Mr. Kellar lit Mr. Bommarito's cigarette
and the men engaged in conversation. These a c tions indicate Mr. Kellar was not
infuriated as he claimed. In addition, he did not complain until the following
d ay .

4

I am not persuaded by Mr. Barnes ' s testimony.
He made the above
statement immediately after stating that Mr. Kellar made the crowbar because it
would make the job "easier." Mr. Barnes also stated that he didn't think it was
a safety issue . · (Tr . 478).
I credit the testimony of John Reid, maintenance
leadman at the Lytle Creek plant during Mr. Kellar's employment. Mr. Reid would
be mo re knowledgeable concerning this issue and he stated the crowbar fabrication
had nothing to do with safety .
(Tr. 791).

11 6 0

Rob Reid apologized in front of Mr. Kellar for any part he
had in the confusion. - In Reid's opinion, Mr. Kellar should not
have been fabricating the crowbar.
(Tr. 789, 790). Mr. Kellar
claimed he was making a bar for a job they were about to do.
(Tr. 790).
concerninq the use of flex-cose: John R. Reid was the maintenance leadman, night shift, at Lytle creek. He had conflicts
with Mr. Kellar over his attitude . There was always an argument
over how a job w:-ould be performed.
In one case, Mr. Reid observed a rip in the splice and he
directed Mr. Kellar to use flex-cose to fix the rip.
[A flexcose is a mechanical clamping device used to clamp conveyor belts
together.
(Tr. 8 ·1 5) ) • About 45 minutes later he observed
Mr. Kellar cutting out a patch of belting and he stated he was
going to put the patch in. Mr. Reid said, "I don't think. so."
Mr. Kellar stormed off and ultimately he put the flex-cose in.
Concerning building belt-clamps: On another occasion Mr.
Kellar was building belt clamps in the shop .area. When Mr. Reid
pointed out that clamps were available, he said he didn't want to
spend the time looking for them. Mr. Reid walked over to the
shop area and found the clamps himself. Mr . Kellar finished the
job, bothered that Mr. Reid had questioned his motives.
(Tr. 782-783) •
concerning light fixtures: On another occasion, Reid observed Mr. Kellar putting together a light fixture . Reid suggested that Mr. Kellar look around for a light instead of constructing one. Mr. Kellar said he didn't want to spend the time doing
that. Reid found a light and gave it to Mr. Kellar.
(Tr . 783,
784) . Mr. Kellar was upset because Reid questioned his motive.
Reid explained that if a light is available, why not use it.
(Tr. 785) .
RUNNING OVER PVC PIPE AND ELECTRICAL DISCONNECT
On July 27, 1991, Mr. Kellar, driving a 966 skip loader, was
digging an eight-foot trench. While driving back and forth, he
clipped and broke some PVC pipe.
(Tr. 74-76).
Mr. Kellar advised his supervisor (Vince Bommarito) who
stated they would bury the trench that night. Mr . Kellar bermed
the road and continued working.
(Tr . 75). Owl Rock had not furnished Mr. Kellar with a spotter.
(Tr. 76) . Mr. Bommarito declined to call underground services .
(See Ex. C-23, California
"Call Before_ You Dig" pamphlet).
On August 1, 1991, Mr. Kellar was written up when he received an "Employee Warning Report" from his supervisor Mr.
Vince Bommarito . The report involved stated as follows:

1161

Violation. of Company Rule E-22 - careless or unsatisfactory performance of job duty - ran over electrical connector while operating skip loader. This
incident warrants a one-day suspension. Another
incident of this nature will result in further disciplinary action including suspension and/or
discharge.
[Ex. 4(a)).

Mr. Kellar opposed the warning report by filing an employee
complaint resolu~ion form.
rt stated in part as follows:
Company replaced a permanent line with a temp. cable
approx. 2 months ago, this left the line exposed to
traffic, personnel, etc •• During the process of backfilling (per supervisor) the pipeline, the cable was
pulled apart, or snapped, by the pressure of the skip
loader.
[Ex. C-4(b)) .

The immediate supervisor's (Vince Bommarito) response in
writing was as follows:
The cord is 1.24 inch 4-4 s.o. Cord 600 v. with a
Crouse-Hinds disconnect which is approved by N.E.C. as
a 90-temp cord. The cord was installed on July 17,
1991 . All employees were informed the cord was there
and the reason for the Crouse-Hinds disconnect was to
avoid drive-over traffic. The procedure was to shut
down the pump, disconnect the Crouse-Hinds and move it
out of the way of traffic. Ken got out of the loader
twice to move the cord out of his way without disconnecting the cord. Ken ran over it to the point of
breaking the Crouse-Hinds disconnect.
[Ex. C-4(b)).

Bob Kelley, the immediate supervisor of Vince Bommarito,
stated in writing as follows:
I (Kelley) issued the warning report based on Ken's
admission that he was aware that the connection was in
danger of being run over but made no attempt to prevent doing so. This - just a few days after running
over some new P.V.C.

Owl Rock's Human Resource Manager Mr. Scorza's written
response stated:
Ken indicated he did not know the electrical line's
location and did in fact attempt to control his
vehicle to prevent damage but got too close. Ken's
concern was in the wording which indicated he was
informed of the procedure. Ken was not informed of
the procedure and assumed incorrectly what should have
been done, leaving the line connected and then--but
not waiting until the plant--be shut down, then again
by rolling over the line

1162

Witness Bommarito confirmed that Mr. Kellar knew the electrical disconn.~ct w.as in. the way of the skip loader. Bommarito
also believed the one-day suspension was proper. (Tr. 861).
OWL ROCK'S JOB PERFORMANCE EVALUATION SYSTEM

Witness Daniel P. scorza, Human Resources manager for Owl
Rock, testified concerning the company's performance evaluation
system. He expla~ned that the system applicable to the hourly
employees rates the employees in categories of A, B, c, and D.
"A" is exceptional; "B" is good; "C" is standard; and "D" is
below standard.
An evaluation is made every six months. The Owl Rock policy
is to cover six months in all categories except safety which
covers the previous 12 months.
(Tr. 680). The five cate9~ries
are:
VERSATILITY AND JOB SKILLS
ATTITUDE
ATTENDANCE AND DISCIPLINE
SAFETY
JOB PERFORMANCE
About 50 percent of the employees are in the category A and
B; the remaining (less D ratings) are in Category c.
FRIENDLY WARNINGS

On November 7, 1991, Mr. Kellar received a "friendly"
warning5 from Supervisor El bert Evans for erratic behavior in
operating a bulldozer. (Ex. C) .
Mr. Kellar also received a separate "friendly" warning from
Bob Burmeister on December 10, 1991, for refusing to use a pencil
to write the job code on his time card. (Ex . c; Tr. 615).

s
A "friendly warning" is an option on the employee counseling form.
The available "action taken" can be:
FRIENDLY WARNING
WRITTEN WARNING
SUSPENSION
DISCHARGE
COMMENDATION
Exhibit C.

/

1163

/

The same date, December 10, 1991, he received a friendly
warning from- supervisor Kelley for pushing oversized rocks
through the plant after they had been ejected by the No. 5 belt.
(Ex. c; Tr. 615).
If these supervisors had given Mr. Kellar formal (instead of
friendly) warnings, he would have been terminated under the company's disciplinary program.
(Tr. 615).
PARTICULAR JOB PERFORMANCE RATINGS
(See Exhibit c for employee warning reports and friendly
warnings; see Exhibit E for evaluations, criteria, performance
levels, definitions, and Job Performance).
Mr. Kellar's initial job performance evaluation was in
February 1991 when he scored a 42, a "B" rating.
(Ex. E) .
In September 1991, Mr. Kellar received a "C" evaluation.
He appealed this evaluation under the appeals grievance process
available to Owl Rock employees for resolving disputes regarding
such an evaluation.
(Tr. 626, 627; Ex. E).
In accordance with the evaluation program, the grievance
committee was composed of two of Mr. Kellar's hourly co-workers
selected at random, two supervisors who had no prior working experience with the employee, and one Human Resources representative to act as a tie breaker if needed.
(Tr. 626-628; Ex. A;
Ex. 0) •
Mr. Kellar and supervisors Vince Bommarito and Todd Craig,
who prepared the "C" evaluation attended the hearing to present
evidence.
During the hearing, Mr. Kellar became very angry and walked
out before the hearing was completed.
(Tr. 318, 319, 628). The
grievance committee ruled in a unanimous 4-0 decision to uphold
the "C" rating. The Human Resources representative abstained.
(Tr. 63 5) .
About February 13 ,_ 1992, Mr. Kellar was given a "D" performance evaluation.
(Ex. E, 2-13-92 review) . The valuation covered
the period of August 1, 1991, to January 31, 1992. It was based
solely on input from his supervisors at Barstow concerning his
performance at that mine.
(Tr. 868) .
At the new mine and with new supervisors, Mr. Kellar
continued to engage in disputes with his supervisors about
non-safety issues.

116 4

At -Lytle Creek, Mr. Kellar also received two warnings as a
result of fail.ing--.to -follow proper time card procedures.
(Tr.
834-836). Other employees at Lytle Creek received similar warnings but Mr. Kellar called Mr. Scorza to complain about the warnings, requiring 45 minutes of his time.
(Tr. 617, 618, 834,
836). Brian Sterling, the Lytle creek foreman, gave himself
a one-day suspension for failing to clock out properly.
(Tr. 835-836).
In June 1992-Mr. Kellar received an informal review from
Mr. Scorza and two supervisors from Lytle Creek. The two supervisors were Brian Sterling and Marlo Ommen, the assistant operations manager.
(Ex. E, 6-12-92 review; Tr. 621). In light of
owl Rock's policy of immediate termination after two consecutive
"D" performance evaluations, the operator's purpose in giving
Mr . Kellar this review was to discuss how his current performance
could improve from a "D" to a "C" and thereby avoid being __.:terminated.
(Tr. 621). Although Mr. Kellar's supervisors offered him
numerous suggestions during this meeting for improving his performance to a "C" rating, Mr. Kellar's attitude remained argumentative and combative. He told his supervisors he would not be a
team player and he had no loyalty to the company.
(Tr. 320, 623,
842 I 843) •
Some of Mr. Kellar's other statements confirming his confrontational approach to supervisors were:
I will not ask any more questions at these meetings
because of your response, and if you continue to talk
to me this way, I'll deal with you myself.

* * *
Give me the job performance area because I am not
going to change in the attitude area. This is me,
and I'll only give in the area I want to.

* * *
You cut me off and that aggravates me, and this is not
the way to deal with a person that has an attitude
problem.
(Ex. N; Tr. 622).

Mr. Kellar was given a "D" rating in his next performance
evaluation on.August 5, 1992. (Ex. E, 8-5-92 review). This evaluation was prepared by Brian sterling with input from John Reid,
the shift leadman, and Mr. Ommen . Mr. Sterling also consulted
Mr. Scorza to discuss the review.
(Tr. 844, 847).

1165

Mr. Kei-lar ·filed · an appeal to his second "D" valuation.
(Tr. 632). The grievance committee for thls appeal was completely different from the prior review committee that considered his
"C" evaluation in Barstow. (Tr. 632, 633, 634). Messrs. Kellar
and sterling presented their evidence and the committee unanimously voted 4-0 to uphold the "D" evaluation with the Human
Resources representative abstaining. (Tr. 634-636). Based on
the second "D" evaluation, Mr. Kellar was terminated.

Exhibit M shows various factors were involved in Mr. Kellar's evaluation. The following chart combines various facets of
the evidence.

1166

'"""'
I-'

-..J

O'I

6-92

7-92

Informal
evaluation

Warning

'

one-day
suspension

Four-month
review

6-01-91 to
1-31-92

2-01-92 to
7-31-91

one-day
suspension

8-01-90 to
1-31-91

Period

Failure to
punch in

Time cards,
Buried #5 belt,
oversized rock
returned to system

PCV pipe
disconnect

Event
K. Kellar hired

:

D

D

'

Evaluation

Barstow

Evaluation

See detailed analysis of evaluations, infra.

2-13-92

9-X-91

Evaluation

Evaluation

7-27-91
7-31-91

warnings

11-91 and
12-91

2-14-91

Evaluation

Three friendly
warnings

6-19-90

MSHA
Investigation

Date
10-21-89

I

(D)

23 (D)

23

30 (C)

.

42 (B)

Score

c

E

c

E

c

E

Exhibit

'·

J.

I

DISCUSSION AND FURTHER FINDINGS

Mr. Kellar made various complaints to MSHA concerning
safety. These activities and other safety related complaints
were protected under the Act. Mr. Kellar has established a prima
facie case of discrimination under the Act. The issue thus
presented is whether the adverse action complained of was motivated in any part by his protected activities. In other words,
would Owl Rock ~ave taken adverse action in any event for
Mr. Kellar's unprotected activity alone.
Mr. Kellar's unprotected activities included his argumentative and antagonistic attitude towards Owl Rock's management.
His attitude is reflected in the matter of the time cards, the
cigarette incident, the crowbar fabrication, use of flex-cose,
building belt clamps and light fixtures, and running over the PVC
pipe and electrical disconnect.
Brian Sterling was the owl Rock plant foreman while
Mr. Kellar was at Lytle Creek. When Mr. Kellar came to Lytle
creek, Mr. Sterling instructed him in the safety ramifications,
work rules, locking out, etc.
As the plant foreman, Mr. sterling would be in the best position to know Mr . Kellar's attitudes. He testified at length
stating:
Ken Kellar was a difficult employee in that he was
very rebellious. He was very antagonistic against
management. He came to Lytle Creek with an apparent
attitude that he was going to be discriminated
against, not treated fairly, that I wouldn't give him
a fair shake or be straight up with him.
And one of the problems we had right off the bat,
was he constantly questioned management and supervisory personnel. It didn't matter what it was .
If we
gave him a job, he would have to question it. He
would have to say, "Well, it should be done this way;
it should be done that way."
In a lot of situations due to the time frame that
we had to get work done. we would have to patch something, we wouldn't have time to take the whole plant
apart and put it together right. We are building a
bridge. We are putting a piece of metal back in where
we are just going to wear it right back out by beating
rock against it. And, we would want him to just cut a
piece of metal put (it] up there, stab it in, burn it
in, and leave it there. "Don't worry about it."
But he would insist that it was necessary and the
correct way would be to cut that out, trim it up, polish it up, cut a new piece of steel. It's steel
that's laid on the ground; it's all rusty. He wants

1168

to polish it up, he wants to put it in there, he wants
100 percent penetration weld to get through there, and
it was a· constant· ongoing battle to get him to do
this.
One ti.Jne--and we had this discussion several
ti.Jnes--about whether to patch or whether to fix. One
time I had a bunch of work to do, and they were staying over to get some of it done; and I came out there,
and he was supposed to be preparing some patches to be
put on and all he should have had to do was go over
there anq cut it.
Ken Kellar represented himself as being an expert
welder, an expert fabricator; this was his background,
this was his trade. Yet, he comes in there, and I
said, "I just want a patch on there."
I came back a little while later, and he is over
there, and he's got his patches cut, and he is grinding the corners, and he is polishing the metal.
I got a little impatient, and I told him, "Hey,
look. Don't bother with that. Just take it over
there and put it on."
His comment to me at that time was that wasn't
the right way to do it. He didn't want to do it that
way. He didn't think we were doing things correctly,
and that he was afraid that he would forget how to do
his trade correctly if he continued to it the way we
were doing it; that we would detrain him to a point
where he would have to worry about whether he could
go back to his old job and still be able to do the
job correctly.
And that was his statement to me: that he didn't
want to do a quick patch job because he wouldn't be
able to--he could lose his ability to correct welding.
And this to me seemed like an unrealistic attitude,
but we had that problem.
Q.

Let me stop you for a minute. Does the issue whether
metal is polished or a weld is polished have anything
to do with safety?

A.

Not unless you're talking about structural welds, not
unless you're building a bridge or putting up a catwalk or something like that.
If you're just patching up a bunker, or you are just
patching a chute that you're going to run rock down,
water, sand, and gravel down, then there is no safety
involved here. All you are trying to do is keep it
from leaking and keep the gravel inside the chute.
(Tr. 826-829).

Mr. Kellar himself confirmed Mr. sterling's views when he
testified without equivocation at trial that as far as he was

1169

concerned, the two write-ups (involving the operation of the skip
loader) was:_.!'the-point of no return" and "my attitude turned
negative towards the company on July 31, 1991." (Tr. 286).
The Judge is aware that witnesses Bazzelle, Barnes, and
Romero described Mr. Kellar as a "good and safe worker," "good
employee," and "not a difficult employee." (Tr. 442, 443, 463,
500). However, it is apparent from the credible record that
Mr. Kellar's negative attitude confirmed by Mr. Kellar himself,
was towards his- immediate supervisors.
Numerous actions by Owl Rock demonstrate the operator lacked
retaliatory intent as a result of the MSHA investigation or safety complaints thereafter . These actions included giving Mr. Kellar a "B" (good) performance evaluation in February 1991 and a
"C" (standard) performance evaluation in July 1991. In addition,
the company by Supervisor Kelley granted Mr. Kellar's request to
change positions from a welder repairman to a bulldozer operator.
Further, Mr. Kellar was given "friendly" warnings in late 1991
carrying no disciplinary consequences. Formal written warnings
could have resulted in Mr . Kellar's termination.
Finally, Mr. Kellar's performance at Barstow involved a
separate group of supervisors and co-employees from the second
"D" at Lytle Creek in August 1992 .
EMPLOYEE EVALUATION PROCESS

was it merely a transparency for Disparate Treatment?
Mr. Kellar seeks to persuade the Commission that the evaluation process is merely a show to disguise discriminatory intent.
Witness Raymond Barnes testified that "this evaluation system was set up to eliminate blacks, minorities_, and other undesirables on the job." (Tr. 482).
Mr. Barnes bases his view of disparate treatment on an occasion when Owl Rock hired a maintenance trainee. At the time,
Mr. Barnes, a repairman, went on vacation. The trainee scored
higher than Mr. Barnes did. However, Owl Rock brought in three
men to replace him. In short, Mr. Barnes was not promoted to
journeyman mechanic and he felt the evaluation system was penalizing him because he couldn't perform certain types of duties.
(Tr . 4 8 2 , 4 8 4 ) . 6
6
Mr . Barnes simply fails to offer a credible testimony to support his
broad allegat ions.

1 170

On one 0ccasion·, ·-Mr. Reid said Mr. Barnes had a negative
influence on Mr. Kellar. Mr. Barnes got upset because there were
no other blacks on the job and he felt they were discriminating
against him.
(Tr. 453, 454).
Witness Ferman Romero testified7 that whether someone was
written up depends on the person involved. He (Romero) would
probably be written up but Bill OeForge8 (front-end loader
operator) would ~ot.
(Tr. 512).
Witness Faust also described the appeal process as a "joke."
(Tr. 549). It would have been fairer if he had been able to ask
questions.
(Tr. 550). You couldn't bring in witness statements
and Bob Kelley was asked not to be at the hearing.
(Tr. 551).
Contrary to Complainant's position, I credit Owl Rock's evidence which shows numerous other employees routinely received
warnings or were disciplined for careless or erratic operation of
equipment, safety violations, time card, attendance, or performance problems.
(Tr. 195, 312, 511, 665, 666, 711, 732, 745).
With respect to the time card warnings, discussed supra,
Mr. Sterling estimated that out of 436 employees at that facility, 40 received warnings for failure to follow time card procedures.
(Tr. 834, 836).
(See also Exhibit F for analysis of
1990 and 1991 Disciplinary Actions.
It shows that in 1991 the
company issued 233 warning notices and 108 suspensions; there
were 15 discharges.)
Further, supervisors and co-workers testified they frequently raised safety issues to management and they did not receive any discriminatory treatment for doing so. In addition,
Owl Rock encouraged its employees to raise safety issues.
(Tr . 7 5 7 , 7 5 8 , 8 5 3 , 8 5 6 ) •
Elbert Evans testified that even though he complained to
MSHA witfi Owl Rock's full knowledge, he was never discriminated
against or subjected to any discipline for having done so.
(Tr. 758) .

7

I do not find Mr. Romero's testimony to be credible. If there is a
degree of discretion involved as to a write-up, the record fails to establish how
the person involved affects such a write-up .
8

William De Forge testified but neither party explored this issue with
him.
(Tr. 144-167). However, Mr. De Forge testified Mr. Kellar's attitude towards the company was "very negative. He always had something bad to say about
them."
(Tr. 163).

1171

Many employees, including some of Mr. Kellar's supervisors,
raised some of the same safety concerns as .Mr. Kellar.
(Tr. 718,
720, 721) . Mr. Evans testified he gave Mr. Kellar a pamphlet
with MSHA's phone number so he could call MSHA with his safety
concerns.
(Tr. 757). Even though Mr. Evans complained about
safety he was described as the type of employee Owl Rock liked.
(Tr. 103, 104, 315).
Mr. Kellar ~dmitted there was an emphasis on safety as time
went by after the union strike at Barstow. Further, management
was encouraging employees to report safety violations and other
employees also received written warning and a suspension for
safety-related violations .
[For example, Ferman Romero was
written up for not putting the lock on an electrical box.
(Tr . 311 , 312 ) ] •

A lack of disparate treatment is also shown by the uncontroverted evidence that Mr. Kellar was one of five employees with a
"DD" in 1992.
(Tr. 693). In 1990 owl Rock discharged 13 employees ; in 1991, 15 were discharged.
(Tr. ~90-694).
The evaluations of Mr. Kellar's job performance are critical
to a resolution of this case.
(Exhibit M is a written chronology
of a portion of the evidence.)
HISTORY OF COMPLAINANT'S JOB EVALUATIONS
As previously noted, Mr. Kellar's first evaluation from
Vince Bommarito in February 1991 covered the period from August 1, 1990, to January 31, 1991. He received a "B" (Good)
rating with a total score of 42. A maximum rating is a score
of 50.
In July 1991 he received two warnings and a one-day suspension for the skip loader incident.
His next evaluation from
Vince Bommarito was in September 1991 for the period from February 1, 1991, to July 31, 1991. His "versatility and job skills"
dropped one point from 8 to 7. His "attitude" dropped from an 8
to 7.
"Attendance and discipline" dropped from a 10 to an 8 .
"Safety" dropped from an 8 to 1. The form reflects the safety
items involved the electrical disconnect, the PCV pipe, and a
finger and back injury. A total score of 30, a "C" was
recorded.
It is apparent the incidents involving the electrical disconnect and the PVC pipe had the most severe effect on Mr. Kellar's subsequent evaluations. However, the record fails to
reveal any discriminatory intent by Owl Rock for activities
protected by the Mine Act.

1 17 2

Mr. Bommar-ito testified the 1991 evaluation for safety was a
1. 11 This was due to a lost-time injury and two warnings in
July.
(Tr. 866-867).
11

In November and December 1991 Mr. Kellar received three
friendly warnings. In January 1992, Mr. Kellar exercised bumping rights and moved to Lytle Creek. His next evaluation from
Vince Bommarito and Elbert Evans was in February 1992 for: the
period of August 1, 1991, to January 31, 1992. In this ~valua
tion, his "versatility and job skills" remained at a 7. His
attitude dropped from a 7 to a 3. The category of "Attendance
and Discipline" dropped from an 8 to a 7. The category of
"Safety" remained a 1 and "Job Performance" went from 7 to 5.
His total score was 23, a "D."
In March 1992, Mr. Kellar received a warning for failing to
punch out at the end of a shift.
In June 1992 Brian Sterling gave Mr. Kellar a four-month
informal review.
"Versatility and Job Skill's" remained at a 7.
"Attitude" 9 increased to a 4 from a 3. "Attendance and Discipline" decreased from a 7 to a 5 . "Safety" increased from a 1
to a 4. "Job Performance" remained a 5. Using the same criteria, the score was 25 for the four-month review.
In July 1992 Mr. Kellar received a warning and a one-day
suspension.
His next evaluation was in August 1992 for the period from
February 1, 1992, to July 31, 1992. The evaluation by Mr. Omman
remained the same as the informal evaluation of June 1992. It was
a "D" evaluation scoring 25 points.
In finding Owl Rock's performance evaluation to be credible,
I note that each of the five performance categories contains specific criteria to be followed when rating an employee. The valuation further contains definitions of performance. A careful review of the evaluation as to Mr. Kellar fails to show any intent
by Owl Rock to discriminate against him in violation of the Mine
Act.
(See Exs. E and M).

9
~valuations

Exhibit M shows a score of 23 points, but I credit the individual
for August 1992 as the individual categories add up to 25 points.

1173

The following format indicates the performance evaluations
for Mr. Kellar:
*Self
8-12-92

2-14-91

3-X-91

2-13-92

6-11-92

6-12-92

8-5-92

Versatility
& Job Skills

8

7

7

7

7

6

8

Attitude

8

7

3

4

4

3

7

- 10

8

7

5

5

5

5

Safety

8

1

1

4

4

4

7

Job Performance

8

7

5

5

5

5

6

Total

42

30

23

25

25

23

33

Attendance &
Discipline

* Mr. Kellar's self-serving evaluation is not persuasive since attitude,
safety, and job performance are excessively high.
HOSTILITY
The record fails to establish hostility on the part of Owl
Rock in relation to Mr. Kellar's protected activities.
The evidence also establishes legitimate reasons for
Mr. Kellar to receive the written and friendly warnings as well
as the "C" and two "D" evaluations.

Mr . Kellar received a "C" in September 1991, based mainly on
problems with the PVC pipe and electrical connector on July 1991,
as well as attendance and Mr. Kellar's performance in his new job
as a bulldozer operator.
[Ex . E (9-91 review); Tr. 867).
Mr .. Kellar's evaluation in February 1992 dropped from a "C"
to a "D" because of continuing problems with his attendance and
job performance, and problems with his attitude.
[Tr. 748, 868;
Ex. E {2-13-92 review}]. Mr. Kellar's supervisor Vince Bommarito, who prepared both the "C" and "D" evaluations, testified
that after Mr. Kellar was given the written warnings for the PVC
pipe and electrical connector accidents in July 1991 he became
very argumentative and negative and was unable to concentrate on
his job tasks.
(Tr. 868}.
Similarly, the written warnings for running over the PVC
pipe and the electrical connector were justified. Even though
Mr. Kellar wa_s fully aware of the location of both the PVC pipe
and the electrical connector, he carelessly operated his skip
loader and ran over them.
(Tr. 243, 245). Mr. Kellar admitted
to Robert Kelley, Elbert Evans, and Vince Bommarito that he had

1174

made a mistake; he felt "so stupid"; he had been in a hurry; he
was wrong; and__h~- ~ll~~. )~e was going to be written up.
(Tr. 709,
743 I 861) •
Brian Sterling also testified at length why Mr. Kellar received his second "D" evaluation in August 1992. Mr. Sterling's
evaluation was based in part on Mr. Kellar's poor work attitude.
(Ex . E (8-5-92 review); Tr. 844, 847). In addition, the appropriateness and fairness of the evaluations and warnings are evidenced by the fact that independent appeals committees upheld
his "C" and second "D" evaluations as well as the grievance regarding the warning for the electrical disconnect.
{Tr. 624,
625, 635, 636).
In sum, Mr. Kellar was at times a difficult, hostile, and
combative employee, who constantly debated and challenged his
supervisors' directions, who told his supervisors that he did not
want to be a team player, and that he had no loyalty and who experienced job performance problems for things such as the careless operation of equipment, attendance and failure to follow
time card procedures.
(Tr. 285, 286, 618, 703, 704, 780, 785,
826, 829, 842, 844).
Even though owl Rock attempted to assist Mr. Kellar to improve his performance, as evidenced by the personal meetings and
informal reviews, Mr. Kellar did not make the effort to try to
improve his performance.
(Tr. 842, 844) .
Contrary to any "hostility," Owl Rock encouraged employees
to raise safety issues and investigated and took corrective action when employees (including Mr. Kellar) did so.
(Tr. 718-720,
751, 753).
The MSHA investigation occurred in June 1990. The record
here fails to show any coincidence in time, particularly when
Mr. Kellar received a "B" evaluation in February 1991.
In sum, Mr. Kellar has not proven that Owl Rock discriminated against him.
CLOSING ARGUMENT

Mr . Kellar, through his representative, Ms. Kellar, argues
the Owl Rock appeals process is biased because they don't give
you any witnesses or rights to bring into the hearing, but the
the company can bring in supervisors and management personnel.
Further, the company can carry over a safety incident up to
one-year or two evaluations. Mr. Kellar argues that such a carryover would leave Mr. Kellar with only 33 days to bring up his
score.
(Tr. 881-884) .

117 5

These t~o issues relate to the emplo:Yment contr~ct between
owl Rock and-- its·· employees. It is the Judge's function to determine whether Owl Rock discriminated against Mr. Kellar in violation of the Federal Mine Law. I find no such discrimination on
this record. Whether the employment contract is fair or unfair
is a matter to be resolved by the parties.
Whether an employee can bring witnesses and present evidence
at a company hearing was only minimally developed in the evidence. (Faust, Tr. 549-551). However, the failure to furnish
such an opportunity, depending on the evidence, could tarnish the
results of the hearing.
However, on the record of this case and assuming that the
operator's actions were motivated in part by Mr. Kellar's protected activities, the operator established by a clear preponderance of the evidence that it was also motivated by business reasons (its employee job performance requirements) and Mr. Kellar's
unprotected activities, and on that basis the operator would
have taken the adverse action of termination in any event.
Accordingly, I enter the following:
ORDER

For the reasons stated herein, this proceeding is DISMISSED .

Law Judge

Distribution:
Mr . Kenneth D. Kellar, Mrs. Kathryn A. Kellar, 10298 Custer,
Lucerne Valley, CA 92356 (Certified Mail)
Patrick J. Grady, Esq., ALLEN, MATKINS, LECK, GAMBLE & MALLORY,
18400 Von Karman, Fourth Floor, Irvine, CA 92715-1597
(Certified
Mail)
ek

1 176

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

MAY 2 3 1994
SECRETARY OF LABO~,
MINE SAFETY AND .HEALTH
ADMINISTRATION (MSHA),
Petitioner

:

Docket No. CENT 92-329
A.C. No. 29-00097-03540
:
:

..

v.

CIVIL PENALTY PROCEEDINGS

Docket No. CENT 93-272
A.C. No. 29-00097-03545

.. Navajo Mine

BHP MINERALS INTERNATIONAL,
Respondent
DECISION

Appearances:

Before:

Nancy B. Carpentier, Esq., Office of the
Solicitor, U. s. Department of Labor, Dallas,
Texas, for Petitioner;
K. T. Johnson, Jr., Esq., BHP Minerals
International, Inc., San Francisco, California,
for Respondent.

Judge Amchan
Overview

These cases involve 6 citations issued as the result of 2
inspections at Respondent's Navajo surface coal _mine in
northwestern New Mexico. The first inspection occurred in the
spring of 1992 and the second in the spring of 1993.
Five of the citations allege violations of electrical safety
standards. Three allege violations of 30 C.F.R. § 77.516 for
insufficient clearance in front of a circuit breaker box. One
alleges an improper setting on a circuit breaker and another
alleges a failure to examine a breaker box inside of a
contractor's trailer. The 1 non-electrical citation alleges
improper storage of an 11-foot high, 4 1/2 foot wide tire.
For the reasons stated below, I vacate all the citations at
issue except for the one alleging a violation with regard to
Respondent's failure to perform an electrical inspection in its

1177

contractor's .trailer. I affirm a non-significant and substantial
violation in .this instance and assess a $50. civil penalty.
The tir.e storage vio·l ation
On June 1, 1993, MSHA Inspector Larry Ramey observed a 11
foot high, 4 1/2 foot wide tire, which weighed 4 tons, stored in
a vertical position in the front of the tire shop at the Navajo
mine (Tr. 13-15, 29-30) . The tire was not restrained in any way,
except possibly for a chock on one side (Tr. 21-22, 34~35, 4951).
Ramey issued Respondent citation number 4061294 for this
condition, alleging a violation of 30 C.F.R. § 77.208(a). That
standard provides that, "Materials shall be stored and stacked in
a manner which minimizes stumbling or fall-of-material ha?,§lrds."
The citation was characterized as non-significant and substantial
because although the tire was standing next to an exit door at
the front of the building, employees generally used the back
entrance (Tr. 15-17).
The cited standard does not state that tires may not be
stored vertically; its requirements are of a very general nature .
Therefore, the test as to whether Respondent violated the
standard is whether a reasonably prudent person, familiar with
the mining industry and the protective purposes of the standard,
would have recognized that vertical storage of this tire violated
the regulation, Ideal Cement Company, 12 FMSHRC 2409 (November
1990), Alabama By-Products Company, 4 FMSHRC 2128, 2129 (December
1982).
I conclude that the Secretary has not met his burden of
proving a violation of this standard.
Jack Vaughn II, the
supervisor of Respondent's tire shop, testified without
contradiction that wide-based tires are generally stored upright
to keep the beads (the inside edge of the tire) from coming
together (Tr. 29-32, 43-44). Mr. Vaughn worked for
B. F. Goodrich and for Goodyear Tire Company (Tr. 28-29). He
testified that all the companies he worked for stored wide-based
tires upright, without the use of tireracks (Tr. 46). He has
never seen such a tire fall (Tr. 47)

1

I have not resolved the conflicting testimony regarding the
presence or the absence of the chock because Mr. Ramey would have
issued the citation even if the tire was chocked. The essence of
the citation is the vertical storage of the tire without a means
to prevent it from falling (Tr. 44-46, 51). Moreover, the record
indicates that there was little, if any chance, that the tire
would roll due to the absence of a chock (Tr. JO, 45-46).

1178

Mr. vaugnn· testified that it is "very, very unlikely that
the tire would fall (Tr . 29)." While I assume that there is some
possibility that the tire could fall, or roll, I cannot conclude
that a reasonably prudent person, familiar with the storage of
tires in the mining industry, would recognize that storing widebased tires vertically is sufficiently hazardous that use of tire
racks, horizontal storage, or other means of restraint, was
necessary.
Mr. Vaughn's testimony indicates that industry practice is
to store the wide-based tires vertically. While industry
practice may not be controlling as to what a "reasonably prudent
person" would do in this situation, there is no evidence in this
record that the industry practice is not reasonably prudent.
Therefore, I conclude that Respondent's vertical storage of the
tire in question did not violate section 77.208(a).

The setting on the circuit breaker for the compressor of the high
wall drill
On April 28, 1992, MSHA electrical Inspector Daniel Head
observed a circuit breaker for the 350 horsepower, 480-volt, 3phase motor for ·an air compressor of a high wall drill belonging
to Respondent (Tr. 61-64) . The highest setting on the circuit
breaker, according to Head, was 6,000 amperes, which is the point
at which the breaker will shut off power to the compressor motor
if there is a short circuit (Tr. 64-66).
Inspector Head concluded that the circuit breaker setting
was too high to comply with the requirements of the National
Electric Code and, therefore, issued citation number 4060870,
alleging a violation of 30 C.F.R. S 77 . 506 . That regulation
provides:
Automatic circuit breaking devices or fuses of the
correct type and capacity shall be installed so as to
protect all electric equipment and circuits against
short circuits and overloads.
The danger of setting a circuit breaker too high is that, in
case of a short circuit, dangerous amounts of current may reach
the motor in the event of a short circuit, even if the tripping
of the circuit breaker is delayed 1/200 or 1/300 of a second,
thus, exposing miners to electrical burns or shock (Tr. 66, 109112}. The parties agree that the criteria for complying with
section 77.506 are found in the National Electric Code (NEC} and,
more specifically, NEC section 430-52 . That section provides
that the setting of an instantaneous trip circuit-breaker be no
more than 1300% of the motor's full-load current (Respondent's
brief at page 7, Petitioner's brief at page 4).

11 79

The dispu~e. b~tween the parties is whether the circuit
breaker settirig in this case exceeded 130·0%. Inspector Head
utilizes a figure of 400 amperes for the full load current of the
motor (Tr. 64-65). He obtained this number from the nameplate of
the motor (Tr. 65). Respondent, through Lynn Byers, the chief
mechanic at the Navajo mine, contends that the motor's full load
capacity is 438 amperes, which you derive from the manufacturer's
instructions (Tr. 97-102). Inspector Head appeared at times to
concede that o~e was not limited to the nameplate in calculating
the full load capacity (Tr. 76-78, 91). Therefore, with regard
to this issue, I credit Mr. Byers and find that the full load
capacity of the motor was 438 amperes, or as the Secretary's
expert Terrence Dinkel testified, "a few amps less," (Tr. 97-102,
121-122).
The parties also disagree as to the setting on cited circuit
breaker. Inspector Head concluded that the breaker would trip at
6000 amperes, which is in excess of 5694 amperes, which is 1300%
of the full load capacity of the motor--using Mr. Byers' figures
(Tr. 73-76). Mr. Byers, however, believes that the circuit
breaker will trip at 5400 amperes, within the 1300% of the full
load motor current allowed by the NEC (Tr. 104).
Terrence Dinkel, an electrical engineer in MSHA's
technologies center (Tr. 115), testified that Mr. Byers was
correct in stating that General Electric, the manufacturer of the

circuit breaker, advises that the circuit breaker will trip
between 9 and 11 times the breaker rating of 600 amperes
(Tr . 102-105, 120-121). However, Mr. Dinkel further stated that
given this range one must assume the average figure of 10 times
the breaker rating as the point at which the circuit breaker will
trip (6000 amperes) (Tr. 120-121).
I credit the testimony of Mr. Dinkel and find that
Respondent's circuit breaker was set to trip at 6000 amperes at
the high setting . This figure exceeds the 1300% limit in the
NEC. Nevertheless, I do not conclude that Respondent violated
section 77.506.
Neither the cited regulation nor the NEC is crystal clear in
specifying the allowable circuit breaker settings for motors with
a 600 ampere thermal rating. As with the prior citation, I
believe the Commission must apply the "reasonably prudent person"
test in adjudicating this citation. As the proper setting for
Respondent's circuit breaker was far from obvious, I cannot
conclude that a reasonably prudent operator's electrician would
have recognized that BHP's circuit breaker was set in violation
of the standard or the NEC.
Mr . Byers was a master electrician at the Navajo mine for 12
years and appears to be quite competent in his field (Tr-. 93-94).
I see nothing in the record that would lead me to conclude that

1180

Mr. Byers di~. n_g_t . act in reasonably prudent manner in setting the

cited circuit breaker or that he should re.asonably have known
that it was not set in conformance with the standard or the NEC .
Applying the test set forth in Alabama By-Products, supra, I
conclude that the standard did not provide Respondent with notice
of its requirements that was adequate to sustain a violation
under the circumstances in this case .
Failure to examine the electrical panel box in a contractor's
trailer
An independent contractor of Respondent, Navajo Engineering
construction Authority (NECA) maintained a trailer on
Respondent's property (Tr. 126-128, 149). This trailer was used
infrequently by the contractor for such purposes as filling out
timecards and planning its work (Tr. 149-150) .
In May 1992, MSHA Inspector Ramey found an electrical
circuit breaker box inside this trailer, which qid not comply
with MSHA's electrical standards (Tr. 129-130) . Most notably,
there were exposed buss bars which are live electrical parts.
These buss bars are in an opening several inches long and several
inches wide. They are recessed approximately 2 inches from the
face of the panel box (Tr. 139-141, 150-151). The Secretary
cited NECA for the specific violations found and also issued
citation number 3588747 to Respondent, alleging a violation of
30 C.F.R . S 77.502 for failing to inspect the panel box during
the prior 2 months (Exhibit P-5).
Respondent concedes that it did not inspect the panel box in
the contractor's trailer (Tr. 153); however, it argues that it
was under no legal obligation to do so, and that the record does
not establish that its contractor failed to inspect the circuitbreaker box.
Mr . Byers conceded that, "(o]f the hundreds and hundreds of
detailed inspections of areas and individual equipment, we missed
it (Tr. 153)." From this concession, I infer that Respondent had
assumed the responsibility for conducting the necessary
examinations of its contractors' electrical equipment. I also
infer from the violations found by MSHA that the panel box had
not been inspected by NECA. Even if Respondent were relying on
NECA to inspect the electrical installations in its trailer, BHP
would be liable for its contractor's failure to do so, Bulk
Transportation Services, Inc . , 13 FMSHRC 1354, 1359-60 (September
1991) . Therefore, I affirm citation number 3588747.
Respondent's violation of section 77.502 was non-significant and
substantial

11 81

The Commission formula for a "significant and substantial"
violation was.. aet . foFth in Mathies Coal Co. 6 FMSHRC 1 (January
1984):
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: (1)
the underlying violation of a mandatory safety
stand~rd; (2) a discrete safety hazard--that is, a
measure of danger to saf ety--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 of a reasonably serious nature.
I conclude that it was not reasonably likely that anyone
would be shocked or burned in the normal course of mining
operations, due to the hazards created by Respondent's failure to
inspect the NECA panel box. First of all, it was rare that
anyone used the trailer (Tr. 150, 153-4). Secondly, rarely would
anyone need to open the panel box, which is no different than a
circuit breaker box in a person's home (Tr. 142, 148). Finally,
even if a person opened the panel box to manipulate the circuit
breakers, it is not reasonably likely that they would stick their
fingers or another object beyond the circuit breakers and contact
the exposed buss bars (Tr. 151-153). Therefore, I find this
violation to be non-significant and substantial at step 3 of the
Mathies test.
Assessed Civil Penalty
The Secretary proposed a $903 civil penalty for this
violation. I conclude that under the statutory criteria in
section llO(i), a $50 civil penalty is appropriate. Of the 6
criteria, the 2 that are most important in determining the
appropriate penalty for this violation are the gravity and the
Respondent's negligence. Given the fact that the trailer in
question was often padlocked and rarely used, I conclude that
Respondent's negligence was fairly low.
Similarly, since employees were rarely exposed to the
uninspected circuit breaker box and it is not reasonably likely
that they would have been injured due to Respondent's failure to
inspect the box, even if they did open it, I believe that the
gravity of this violation is also low. After also considering
the other four statutory criteria, I assess a $50 civil penalty.
The ·clearance below the electrical panel boxes
Three of the citations in this case, numbers 4061289,
3588749, and 3588744, allege violations of 30 C.F.R. § 77.516,

1182

which requires that all electrical equipment and wiring installed
after June 3cr; - 1"9·1·1 ; - meet the requirements of the National
Electrical Code (NEC) in effect at the time· of installation.
More specifically, these 3 citations allege that Respondent
violated section 110-16(a) of the NEC which requires a working
space of 30 inches in the direction of access to live parts,
operating at not more than 600 volts, which are likely to require
examination, adjustment, servicing or maintenance while alive.
The 3 citations involve 3 different circuit breaker boxes.
citation number 4061289 involved a breaker box in
Respondent's safety trailer, which a had a metal f i le cabinet
directly below it. The top of the file cabinet was 30 11 long x
19 11 wide, and 12 - 18 inches below the breaker box (Tr. 156-159) .
Citation number 3588749 involved a circuit breaker box in
the BHP lube area complex which had 6 5-gallon buckets directly
underneath i t (Tr. 164-165). Finally, citation number 3588744
involved a box in the main shop complex, which had a metal desk
directly below it (Tr. 167-168).
Respondent contends that while NEC section 110-16 is
applicable to the boxes, 110-16(a) is not because the breaker
boxes do not contain live parts which are likely to require
examination, adjustment, servicing, or maintenance while alive.
In all 3 cases there was nothing directly in front of the
electrical panel box, but there were objects directly below the
box. Section 110-16 of 1968 NEC requires that "sufficient access
and working space be provided and maintained about all electrical
equipment to permit ready and safe operation and maintenance of
such equipment (Exhibit P-2)."
I conclude that Respondent complied with section 110-16 and
that 110-16(a) does not apply to the conditions cited. I credit
the opinion of BHP's Lynn Byers, a master electrician, that
circuit breaker boxes do not normally have exposed live parts
(Tr. 190) and that there is no reason to work inside such a box
when the box is energized (Tr. 181-3, 187-190). I , therefore,
vacate all three citations.
ORDER

Citation number 3588747 is affirmed as a non-significant and
substantial violation and a $50 civil penalty is assessed . This
penalty shall be paid within 30 days of this decision.

1183

Citation numbers 4060870, 3588744, 3588749, 4061289, and
4061294 are---vacatetl ~

Art r J. Amchan
Administrative Law Judge
Distribution:
Nancy B. Carpentier, Esq., Office of the Solicitor, U. s.
Department of Labor, 525 Griffin St., Suite 501, Dallas, TX 75202
{Certified Mail)
K. T. Johnson, Jr., Esq . , Associate General Counsel, BHP. Minerals
International Inc., 550 California st., San Francisco, CA 941041020 (Certified Mail)
/jf

118 4

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

MAY 2 5 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-125
A.C. No. 15-17301-03516

v.
No. 1 Mine
DONNIE SKIDMORE, d/b/a
3-BOY COAL and T & H
CONSTRUCTION,
Respondent
DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner.

Before:

Judge Barbour

In this proceeding the Secretary of Labor (Secretary), on
behalf of Mine Safety and Health Administration (MSHA) and
pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977 (Mine Act or Act), seeks assessment of a civil
penalty of $5,000 against Donnie Skidmore, d/b/a 3-Boy Coal and
T & H Construction for a violation of 30 C. F.R. § 48.6, a
mandatory safety standard requiring training for newly employed
experienced miners. The alleged violation was cited in an order
of withdrawal issued on June 16, 1993, pursuant to section
104(g)(l) of the Act. 30 u.s.c. § 814(g}(l). The order states
that six named employees were observed working at the
Respondent's mine and that no record exists of the employees
having received newly employed experienced miner training as
required by the standard. The proposed assessment was calculated
through implementation of the Secretary's special assessment
regulations found at 30 C.F.R. § 100.5.
Donnie Skidmore answered on behalf of the Respondent,
asserting that he was not a partner of T & H Construction when
the alleged violation was cited, that four of the cited employees
had received the required training, although their training
records had been destroyed subsequently.
He further stated that
two of the cited employees had been trained but their training
records had not been completed. Skidmore requested that "the
assessment be waived . "

1 185

Followi.n g the issuance of a prehearing order and a
responsive verbal · communication from Skidmore, in which he listed
the witnesses he intended to call, the case was noticed for
hearing on March 14, 1994 in London, Kentucky. Subsequently, the
hearing was rescheduled to be heard on April 21, 1994, commencing
at 8 : 30 a.m. On April 12, 1994, a notice of hearing site was
issued that set forth the address in London wherein the hearing
would be convened.
All of the -Orders and notices were mailed to Skidmore at the
Respondent's address of record by certified mail. None were
returned as undeliverable by the u.s. Postal Service. Tr. 10.
THE HEARING
On April 21, 1994, at 8:30 a.m., and as previously noticed I
called the matter for hearing in the City Hall, 501 South .. Main
Street. No person representing the Respondent was present and I
delayed the hearing for one hour, during which time counsel for
the Secretary, at my request, made several telephone calls in an
effort to locate Donnie Skidmore or some other representative of
Respondent.
At approximately 9:30 a.m. the hearing commenced. Counsel
for the Secretary entered an appearance . No one was present to
represent the Respondent . Tr. 7 . I questioned counsel regarding
his contacts with Donnie Skidmore or any representatives of the
Respondent. Counsel advised me that he had a telephone number
for the Respondent and that a week or two prior to April 21, he
had tried to call the Respondent. The attempt was unsuccessful
because the number was for a mobile telephone that had been taken
out of its service area. counsel further stated that on April
20, he had received a telephone call from Sherry Crawford, a
person identified as a witness in Respondent's prehearing
response. Ms . Crawford asked counsel about the time and location
of the hearing and counsel provided the information. Counsel
explained to Ms. Crawford that he had been unable to contact
Donnie Skidmore or anyone from the company. Ms. Crawford gave
counsel a different telephone number, which counsel tried.
However, again counsel got a recorded message that the telephone
to which the number connected was out of range of its signal.
In addition to these attempts to contact Skidmore, or other
representatives of the Respondent, on April 21, between the hours
of 8:30 a . m. and 9:30 a . m. , and, as noted previously, counsel
placed several more unsuccessful telephone calls to the
Respondent's telephone numbers. Counsel also called his office
and determined a representative of the Respondent had not
attempted to contact counsel there. Tr. 7-9.
Finally, I determined that no person representing Respondent
had called the city Hall to speak with me .

118 6

--· . ..

..-- -

-

FINDING OF DEFAULT

After describing his efforts to locate the Respondent,
counsel moved for a default judgement and an order requiring
Respondent to pay the proposed penalty. Tr. 13-14. I exp~essed
reservations about the amount of the proposed penalty based · o~
what appeared to be the Respondent's small size and no history of
previous violations. In response counsel stated in part:
(T]o require • • . the Secretary, where (a)
party fails to attend (a hearing and] in a
situation where the Secretary and the
[C]ommission have been put to the expense of
appearing . • • to benefit from . . • a
determination of a penalty less than
proposed, sets a bad precedent for
(r)espondents who are so neglectfully
cavalier as not to appear at the hearing.
Tr. 13-14.
As I noted at the hearing, the rules of the Commission are
clear regarding the judge's powers if a party fails to attend a
scheduled hearing.
"The Judge, where appropriate, may find t~
party in default • . • without issuing an order to show cause."
Further, "[w)hen the Judge finds a party in default in a civil
penalty proceeding, the Judge shall also enter an order assessing
appropriate civil penalties and directing that such penalties be
paid." 29 C.F.R. SS 2700.66(b), 2700.66(c). Whatever
reservations I may have had about the amount of the penalty, I
find counsel's point to be well taken. Therefore, I will hold
Respondent in default and will assess the penalty as proposed.
See Tr. 15-16.
The hearing process will function efficiently and as
intended only if the parties take seriously their obligations
under the Act. One of the most important obligations is to
comply with the notices and orders of the Commission.
Disregarding the Commission's directives, especially a notice to
appear at a hearing, results in a waste of the Commission's and
other parties' limited resources. Perhaps even more important,
it indicates a disdain for the hearing process that can undermine
public confidence in the Act and its administration. As counsel
implied, rewarding such contemptuous conduct with anything less
than the penalty proposed encourages its repetition.
Therefore, I find that Donnie Skidmore, d/b/a 3-Boy Coal and
T & H Construction, is in DEFAULT, that the violation of
section 48.6 existed as charged and that i t is appropriate to
assess Respondent the proposed civil penalty of $5,000.

1187

ORDER
Order No. 3831991 is AFFIRMED. Donnie Skidmore, d/b/a 3-Boy
Coal and T & H Construction, is ORDERED to pay a civil penalty of
$5,000 to MSHA within 30 days of the date of this decision and
upon receipt of payment this matter i-s DISMISSED.

JPV;r/f£/~

David F. Barbour~
Administrative Law Judge

D,istribution :
Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, Tennessee 37215
Donnie Skidmore , d/b/a 3-Boy Coal and T & H Construction,
P . O. Box 1798, Corbin, Kentucky 40702
/fb

1 1 88

PBDBDL -llXllB·-SUBTY DD BBAL'.rll RBVZBW COJOUSS:IOB

OPPJ:CB OP ADllJ:JllS'l'JlATJ:VB LAW JUDGBS
2 SKYLXBB, 10th PLOOR
5203 LBBSBURG PXKB
J'ALL8 CllURCB, VJ:RGXJlll 22041

MAY 2 5 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

v.
UNITED STATES STEEL MINING
COMPANY, INCORPORATED,
Respondent

. CIVIL PENALTY PROCEEDING
.

Docket No. WEVA 92-783
A.C. No. 46-01816-03805
Gary No. 50 Mine

.

DECISION ON REMAND
Appearances:

Before:

Javier I. Romanach, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
Billy M. Tennant, Esq., United States Steel Mining
Company, Inc., Pittsburgh, Pennsylvania, for the
Respondent

Judge Fauver

Beginning in 1981, the Commission has held that a
"significant and substantial" violation under § 104(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seg., 1 requires proof of "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 (1981); Mathies Coal Co., 6 FMSHRC 1,
3-4 (1984). In Mathies the Commission further stated:
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:
(1) 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 reasonable likelihood that the
1

Section 104(d) defines a significant and substantial
violation as a violation of such nature as "could significantly
and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard."

1189

hazard· contributed to will result in an injury; and (4)
a reasc»nab.le likelihood that the injury in question
will be of a reasonably serious nature.
In my original decision in this case, I interpreted the
Mathies "reasonable likelihood" test to mean that an S&S
violation exists if there is a substantial possibility that the
violation will result in injury or disease, and that the
Secretary is nQt required to establish that it was more probable
than not that injury or disease would result.
The Commission reversed my decision, holding that a
"substantial possibility test" is "contrary to Commission
precedent" and "does not lend itself to review under the third
Mathies standard." It remanded "for proper application of the
third Mathies element, i . ~., whether there was a reasonable
likelihood that the hazard contributed to would result in an
injury."
On remand, the parties remain in sharp conflict as to the
meaning of the Mathies test. U.S. Steel contends that "an
objective reading of Mathies compels the conclusion that the
Secretary must prove that it was more probable or likely than not
that the hazard contributed to would result in an injury."
Respondent's Brief on Remand, p. 4. The Secretary contends that
"the Mathies test does not require proof that it is more probable
than not that a violation will result in an injury." Secretary's
Brief on Remand, p. 3.
The Commission has not resolved this issue. Although it
ruled that a "substantial possibility test" is contrary to
Mathies, it has not ruled whether the term "reasonable
likelihood" in Mathies means "more probable than not" or includes
a lesser degree of possibility or probability. To comply with
the remand "for proper application of the third Mathies element,"
it will be necessary to decide this issue.
The parties' conflict is understandable because the term
"reasonable likelihood" may convey different meanings. To u.s.
steel, the word "likelihood" governs, and the term "reasonable
likelihood" means "more probable than not." To the Secretary,
the word "reasonable" modifies "likelihood" to mean a reasonable
potential, not "more probable than not . "
For the reasons that follow, it is my interpretation that
the third Mathies element -- "a reasonable likelihood that the
hazard contributed to will result in an injury or illness"
does not mean· "more probable than not."
I begin by noting the commission's discussion of a
"significant and substantial" violation as falling "between two
extremes" (in National Gypsum):

1190

Section 104(d) says that to be of. a significant and
substantial nature, the conditions created by the violation
need not be so grave as to constitute an imminent danger.
(An "imminent danger" is a condition "which could reasonably
be expected to cause death or serious physical harm" before
the condition can be abated. Section 3(j)). At the other
extreme, there must be more than just a violation, which
itself presapposes at least a remote possibility of an
injury, because the inspector is to make significant and
substantial findings in addition to a finding of violation.
Our interpretation of the significant and substantial
language as applying to violations where there exists a
reasonable likelihood of an injury or illness of a
reasonably serious nature occurring, falls between these two
extremes -- mere existence of a violation, and existence of
an imminent danger • . . . [3 FMSHRC at 828.]
As the commission observed, a "significant and substantial"
violation in § 104(d) is less than an "imminent danger" in
§ 3(j).
The legislative history of the Act makes clear that an
"imminent danger" is not to be defined in terms of "a percentage
of probability":
The committee disavows any notion that imminent danger
can be defined in terms of a percentage of probability that
an accident will happen; rather the concept of imminent
danger requires an examination of the potential of the risk
to cause serious physical harm at any time. It is the
Committee's view that the authority under this section is
essential to the protection of miners and should be
construed expansively by inspectors and the commission.

* * *

2

It follows that an S&S violation, which by statute is less
than an imminent danger, 3 is to be defined not "in terms of a
percentage of probability" but in terms of "the potential of the
risk" of injury or illness (Legislative History cited above).
Tests such as "more probable than not" or some other percentage
of probability are inconsistent with § 104(d) and the Act's
legislative history.

2

s. Rep. No. 95-181, 95th Cong. 1st Sess. (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 626 (1978).
3

Section 104(d) excludes imminent dangers from its
definition of an S&S violation.
1191

This interpretation is also indicated by Commission
decisions finding an S&S violation where the facts do not show
injury or illness was "more probable than not." For example, in
U.S. Steel Mining Co., 7 FMSHRC 327 (1985), the issue was whether
the failure to install a bushing for a cable entering a water
pump was an S&S violation. The judge found that the pump
vibrated, vibration could eventually cause a cut in the
insulation, an4 if the circuit protection systems failed, a worn
spot in the cable could energize the pump frame and cause an
electrical shock. The judge found an S&S violation, holding that
injury was "reasonably likely" to occur. 5 FMSHRC 1788 (1983).
In affirming, the Commission stated, inter alia:
On review, U.S. Steel argues that the facts indicated
that the occurrence of the events necessary to create the
hazard, the cutting of the wires' insulation and failure of
the electrical safety systems, are too remote and
speculative for the hazard to be reas.o nably likely to happen
and, consequently, that the judge erred in concluding that
the violation was significant and substantial.

* * *
* * *

The fact that the insulation was not cut at the
time the violation was cited does not negate the possibility
that the violation could result in the feared accident. As
we have concluded previously, a determination of the
significant and substantial nature of a violation must be
made in the context of continued normal mining operations.
U.S. Steel Mining Co., 6 FMSHRC 1673, 1574 (July 1984). The
administrative law judge correctly considered such continued
normal mining operations. He noted that the pump vibrated
when in operation and that the vibration could cause a cut
in the power wires' insulation in the absence of a
protective bushing. In view of the fact _that the vibration
was constant and in view of the testimony of the inspector
that the insulation of the power wires could be cut and that
the cut could result in the pump becoming the ground, we
agree that in the context of normal mining operations, an
electrical accident was reasonably likely to occur.
In u.s. steel Mining Co., the finding that injury was
"reasonably likely to occur" was based upon a reasonable
potential for injury, not a finding that it was more probable
than not that injury would result. Indeed, based upon the facts
found by the. trial judge and relied upon by the Commission, one
could not find that it was "more probable than not" that, had a
bare spot in the cable touched the frame, the circuit protection
systems would have failed to function to prevent injury.

1192

For the above reasons, I conclude that the term "reasonable
likelihood" as used in the Mathies test does not mean "more
probable than not."
Based on the record as a whole, I find that the violation of
the safeguard was significant and substantial. The reliable
evidence shows the area in which the violation occurred was lower
in height than other areas of the mine and uneven, with grades
and swags. These conditions increased the likelihood of injuries
resulting from a disconnected trolley pole. When the trolley
pole falls off the trolley wire, it de-energizes the vehicle,
resulting in an immediate loss of lights, communication, and
electrical powered brakes. If the vehicle lost power at the
bottom of a rise or dip in the trackway, the vehicle would not be
seen by other vehicles. The disconnected trolley pole could
strike miners, dislodge rocks from the roof striking miners, or
cause sparks that could ignite methane. Also, a wide gauge
between the track and trolley wire could tempt employees or
supervisors to block out the anti-swing device in order to keep
the pole from disconnecting. This would create another hazard of
the pole striking miners. Inspector Cook testified that, taken
as whole, the hazards presented by this violation made it
reasonably likely that serious injuries would result. I find
that the reliable evidence supports this finding.
Considering the criteria for a civil penalty in § llO(i) of
the Act, I find that a penalty of $690 is appropriate.
ORDER
Respondent shall pay a civil penalty of $690 within 30 days
of the date of this decision.

W~ -~AfAVeA--

wi11iam Fauver
Administrative Law Judge

Distribution:
Javier I. Romanach, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, suite 516, Arlington,
VA 22203 (Certified Mail)
Billy M. Tennant, Esq., United State Steel Mining Company, Inc.,
600 Grant Street, Pittsburgh, PA 15219 (Certified Mail)
/lt

1193

FEDERAL ICIRB SAFBTY ARD BBAI.'l'B RBVJEW O WfilTSSI:OR
OFFICE Of ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA . 22041

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of MITCHELL BOSTIC
AND WILLIAM WOOD,
Complainants

v.

JIM WALTER RESOURCES, INC.,
Respondent

May 27, 1994

.: DISCRIMINATION
.: Docket No. SE 93-629-D
.: No. 4 Mine
...
..
:

PROCEEDIN~

DECISION APPROVING Sfi'M'IRMRNT
Before :

Judge Melick

This Discrimination Proceeding is before me pursuant
to Section 105(c) of the Federal Mine Safety and Health Act
of 1977 (the Act). The Secretary, with the concurrence of
the individual complainants, has filed a motion to approve
a settlement agreement and to dismiss the case. I have considered the representations and documentation submitted
in this case, and I conclude that the proffered settlement
is acceptable .
WHEREFORE, the motion for approval of settlement is
GRANTED and this case is DISMISSED.
It is therefore
ORDERED that Respondent pay a civil penalty of $1,000 within
30 days of this order, that Respondent pay each Complainant,
Mitchell Bostic and William R. Wood, damages of four hours
premium time, plus corresponding i terest, w thin 30 days of
this order, and that Respond t
t a copy f the settlement
agreement on the mine bullet
bo
for a
riod of 60 days.

Law Judge
Distribution:
William Lawson, Esq., Office of the Solicitor,
u.s. Department of Labor, Chambers Bldg., Highpoint Office
Center, suite 150, 100 Centerview Drive, Birmingham, AL 35216
(Certified Mail)
David Smith, Esq., Maynard, Cooper and Gale, P.c.,
1901 Sixth Avenue North, 2400 AmSouth/Harbert Plaza,
Birmingham, AL 35203-2602 (Certified Mail)
R. Stanley Morrow, Esq., Jim Walter Resources, Inc.,
P.O. Box 133, Brookwood, AL 35444 (Certified Mail)
1194

OFFICE OP ADJUNISTRATIVB LAW JUDGES
2 SltYLIBB, 10th FLOOR
5203 LEESBURG PIICB
FALLS CHURCH, VIRGINIA 22041

MAY 2 7 f994
SECRETARY OF-LABOR,
MINE AND SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

v.

s & H Mining, INC.,
Respondent

... CIVIL PENALTY PROCEEDINGS
. Docket No. SE 93-386
.. A. c . No. 40-02045-03595
.
.. Docket No. SE 93-587
... A. c. No. 40-02045-03596
. Docket No. SE 93-595
. A• c. No. 40-02045-03597
-·-

DECISION
Appearances:

Before:

Thomas A. Grooms, Esq., Office of the Solicitor,
u. s. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Imogene A. King, Esq., Franz, McConnell & Seymour,
Knoxville, Tennessee, for the Respondent.

Judge Feldman

The above matters were called for consolidated hearing on
May 3, 1994, in Knoxville, Tennessee. The respondent, S & H
Mining, Incorporated, stipulated that it is a mining operator
subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977 (the Act), 30 u.s.c. § 801 et. seq. These matters
concern petitions for civil penalty filed by the Secretary of
Labor pursuant to Section 105(d) of the Act.
These cases involve five citations that were all designated
as significant and substantial. Proposed penalties for three of
the citations were derived under the Secretary's special
assessment procedures set forth in Section 100.5 of the
regulations, 30 C.F.R. § 100.5. The total proposed penalty for
all citations was $3,913. After the parties presented their
direct cases on two of the subject citations, the parties
requested to confer for the purpose of reaching a comprehensive
settlement of all matters in issue. The parties ultimately
reached an accord and presented their settlement motion on the
record. · (Tr. 200-208). The terms of the settlement agreement
include the respondent's payment of a total civil penalty of
$1,424. In return, the Secretary has agreed to remove the
special assessment from Citation Nos. 4041554, 4041544 and
4041553. In addition, the Secretary moves to delete the
significant and substantial designation from Citation

1195

No. 4041559. The Secretary also moves to vacate Citation
No. 4041555. The specific citation numbers, initial proposed
penalties, a·n d -···
agr~~<L upon penalties are as follows:
..
- ·~

Initial Proposed
Penalty

Dkt. No.

Citation No.

SE 93-386

4041554
4041555

$900
$235

SE 93-587

4041544
4041559

$1,400
$178

$600
$100

SE 93-595

4041553

$1,200

$362

$3,913

$1, 42.4

TOTAL

Settlement

$362

Vacated

In view of the information presented on the record
pertaining to the statutory penalty criteria in Section llO(i) of
the Act as well as information related to the appropriate
circumstances for imposition of a special assessment under
Section 100.5 of the regulations, I issued a bench decision
approving the settlement terms noted above.
ORDER
Accordingly, the parties' Motion to Approve Settlement IS
GRANTED. The settlement terms presented on the record and
summarized above are incorporated herein. IT IS ORDERED that the
respondent pay a total civil penalty of $1,424 in total
satisfaction of the citations in question. Payment is to be made
to the Mine Safety and Health Administration within 30 days of
the date of this Decision. Upon timely receipt of payment, these
cases ARE DJ:BXJ:BBED.

1?__{);, ~~-·. ·---~
.

~;:,ld
Feldman
Administrative Law Judge
(703) 756-5233

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, u. s. Department
of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN
37215-2862

Imogene A. King, Esq., Frantz, McConnell & Seymour, 550 Main
Avenue, Suite soo, Knoxville, TN 37902
/11

1196

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

MAY 3 1 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
:

Docket No. PENN 93-86
A. C. No. 36-07783-03528

v.
Slope No. 1
HICKORY COAL COMPANY,
Respondent
DECISION
Appearances:

Pedro p. Forment I Esq. I Off ice··· of the Solicitor I
u. s. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary;
William Kutsey, Hickory Coal Company, Pine Grove,
Pennsylvania, for Respondent.

Before:

Judge Maurer

This case is before me upon a petition for assessment of
civil penalty filed by the Secretary of Labor (Secretary),
pursuant to section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 U. s. C. § 801, et seq., the "Mine Act" or "Act,"
charging Hickory Coal Company (Hickory) with three violations of
the mandatory standards and seeking civil penalties of $112 for
those violations. Pursuant to notice, the case was heard in
Easton, Pennsylvania, on April 21, 1994.
The three citations at bar, citation Nos. - 3079885, 3079890,
and 3079891, were all issued by Inspector Howard J. Smith of the
Mine Safety and Health Administration (MSHA) as a result of his
inspection at Hickory's Slope No. 1 on August 28, 1991.
Citation No. 3079885, issued pursuant to section 104(a) of
the Mine Act, alleges a "significant and substantial" violation
of 30 C.F.R. § 75.1401 and charges that:
The hoist indicator, located on the hoist was
not operational. A miner was being hoisted at the
time this was observed. An accurate and reliable
indicator of the position of the gunboat shall be
provided.

1197

-

citation No. 3079890, issued pursuant to section 104{a) of
the Act, aliege--s ..a ·· -11 s1gnificant and substantial" violation of
30 c.F.R. § 75.1402 and charges that:
The operator has failed to provide two effective
methods of signaling between the No . 7 West Slant and
the hoist room . The operator has provided a bell
system and needs to provide one which shall be a
telephone or speaking tube .
Citation No. 3079891, also issued pursuant to section 104(a)
of the Mine Act, alleges a violation of 30 C.F.R. § 75.303{a) and
charges that:
The results of the pre-shift examinations were
not recorded as requ·i red . The last entry was 4-23-~_1.
Inspector smith testified that when he arrived in the hoist
house on the day in question, Mr. Kutsey was underground working.
He spoke with a Mr . Deeter, who identified himself as the
hoisting engineer. After some discussion about how to contact
Mr. Kutsey, it was decided to shut the compressor off as a signal
and Mr. Kutsey would then know to come out of the mine .
While Mr . Kutsey was in the process of coming out, the
inspector checked the hoist indicator , that indicates the
position of the gunboat in the slope. It was not working. The
indicator is supposed to indicate the position of the gunboat in
the slope, whether it is being raised or lowered. The hoist
indicator moves along a graph to show exactly where the gunboat
is in the slope. Apparently, the hoisting engineer was using a
mark on the cable for some sort of guidance, but the inspector
testified that this is not an approved method of indicating where
the mine gunboat might be because it only shows the position of
the gunboat in the slope while that mark is visible. There was
some evidence that there was a mark on the cable for the top of
the slope and another to mark the bottom of the slope where
Mr. Kutsey would be working .
The operator also had a pull cord and a horn arrangement
that could be used for signalling. For instance, if Mr. Kutsey
was underground and he wanted the gunboat to be raised or lowered
he could give whatever prearranged signal to the hoisting
engineer to raise or lower the gunboat . This is an approved
signalling method, but it does not satisfy the requirement for
a hoist indicator contained in 30 C.F.R. § 75.1401.
While I find this violation of the cited standard to be
proven, I do not believe that the Secretary has carried his
burden of proof with respect to the "significant and substantial"
special finding because the markings on the cable at least
provided sufficient information as to the whereabouts of the

119 8

gunboat near the top and bottom of the slope, which are the two
most critical locations and, accordingly, it will be deleted.
Mathies Coal Co . , 6 FMSHRC 1,3-4 (January 1984).
It is also a significant factor in this case that this is a
very small miniRg operation and the owner/operator, Mr . Kutsey,
is the only miner who goes underground. His only other employee
or two remain on the surface at all times .
I also conclude that based on the evidence contained in this
record, respondent's negligence was "ordinary" or "moderate" and
an appropriate penalty for the violation is $20.
While waiting for Mr. Kutsey to come out of the mine,
Inspector Smith checked the pre-shift examin~r's book and found
the last entry to be 4/23/91. Clearly, this i~ - a violation of
the cited standard as Mr . Kutsey was operating the mine on the
date of the inspection and had operated the mine between April 23
and August 28, 1991 . Based on the record evidence, I conclude
that it is a properly issued non "S&S" citation, due to the
operator's ordinary negligence and the Secretary's proposed
assessment of $20 is appropriate.
The inspector also determined that day that the operator had
failed to provide two effective means of signalling between the
Seven West Slant and the hoist room. He further explained that
Mr. Kutsey has a bell system and a phone system, but on the day
in question the phone was located at the Six West Slant while
Mr. Kutsey was working at the Seven West Slant. Essentially, the
violation is that he only had one system available at No. 7. He
could either have moved the existing phone at No. 6 to No . 7, or
he could have installed another phone at No . 7. The standard and
the record are clear that the phone system was required to be
installed and available where the miner was working. Again, the
violation is clear cut, but I conclude that it has not been
established that the violation was "significant and substantial,"
since at least one usable system of communications was in working
order, i.e., the bell system. See, Mathies, supra. Once again,
I also find the respondent's negligence to be "ordinary" or
"moderate" and will assess a civil penalty of $20.
ORDER
In view of the above, IT IS ORDERED that:
1.

Citation No. 3079891 IS AFFIRMED.

2.
Citation Nos. 3079885 and 3079890 ARE MODIFIED by
deleting the "significant and substantial" designations.

1 199

--·· ..

3.
Respondent shall pay a total civil penalty of $60
within 30 days of the date of this decision.

Law Judge
Distribution:
Pedro P. Ferment, Esq . , Office of the Solicitor, U. S. Department
of Labor, 14480 Gateway Building, 3535 Market St., Philadelphia,
PA 19104 (Certified Mail)
William Kutsey, owner, Hickory Coal Company, _ R.D ~ #2, Box 479,
Pine Grove, PA 17963 (Certified Mail)
dcp

1200

ADMINISTRATIVE LAW JUDGE ORDERS

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY
DOUGLAS E. DEROSSETT,
Complainant
v.

MARTIN COUNTY COAL CORP.,
Respondent

2 1994

.: DISCRIMINATION PROCEEDING
. ·Docket No. KENT 94-278-D
.• MSHA Case Nos. PIKE CD 93-10
.
PIKE CD 93-20
. Diamond No. l Mine

ORDER OF PARTIAL DISMISSAL

Appearances:

Douglas E. DeRossett, Allen, Kentucky, pro se;
Diane M. Carlton, Esq . , stoll,_.Keenon and Park,
Lexington, Kentucky, for Respondent.

Before:

Judge Melick

on May 19, 1993 and on July 29, 1993, pursuant to Section
l05(c)(2) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c . § 801, ~ ~ . , the "Act," Complainant DeRossett
filed separate complaints of discrimination with the Department
of Labor's Mine Safety and Health Administration (MSHA) alleging
separate and distinct factual circumstances (MSHA Case Nos.
PIKE CD 93-10 and PIKE CD 93-20, respectively). 1 On December 11,
1993, DeRossett filed a complaint with this Commission which,
although not an example of clarity; made reference to both of the
above MSHA cases. DeRossett has failed, however, after many
opportunities, to produce any correspondence from the Secretary
(or MSHA) finding no violation of the Act in regard to these
complaints . He did not do so in his original complaint before
this commission, nor in response to the specific request for such
correspondence in Chief Judge Merlin's Order dated December 16,
1993, nor in response to the Show Cause Order issued February 16,
1994, nor at the hearing on the Respondent's Motion to Dismiss
held April 26, 1994.

Section 105(c)(2) provides, in part, as follows:
"Any miner or applicant for employment of representative
of miners who believes that he has been discharged, interfered
with, or otherwise discriminated against by any persons in
violation of this subsection may, within 60 days after such
violation occurs, file a complaint with the secretary alleging
such discrimination."

1201

Section 105(c)(3) of the Act provides, in part, as follows:
Within·-90 -days of. the receipt of a cqmplaint filed
under paragraph (2), the Secretary shall notify,
in writing, the miner, applicant for employment,
or representative of miners of his determination
whether a violation has occurred. If the Secretary,
upon investigation, determines that the provisions
of this subsection have not been violated, the complainant shall have the right, within 30 days of
notice of ~he Secretary's determination, to file
an action in his own behalf before the Commission,
charging discrimination or interference in violation
of paragraph (a).
In the absence of evidence that the Secretary has
issued such notification, this Commission is, therefore,
without jurisdiction to proceed under that section of the Act.
Since Respondent produced at hearing from its own
files a copy of MSHA's letter dated Novemb~r.- 22, 1993,
f inding no violation of the Act regarding its Case No.
PIKE CD 93-20, I find that the jurisdictional prerequisites
have been met for that part of DeRossett ' s Complaint before
this Commission under Section 105(c)(3).
In the absence of
any evidence of such a letter relating to the complaint under
MSHA Case No. PIKE CD 93-10, I do not find that the jurisdictional prerequisite has been met for that complaint.
Accordingly, that part of the complaint before this commission
that is based upon the allegations set forth in MSHA Case
No. PIKE CD 93-10 is therefore DISMISSED. A hearing limited
to the four corners of the complaint initially file under
MSHA case No . PIKE CD 93-20 will accordingly be sch duled in
the near future.

Distribution :
Douglas E. DeRossett, Box 56 , Allen, KY 41601 (Certified Mail)
Charles E. Shivel, Jr., Esq., Diane M. Carlton, Esq.,
Stoll, Keenort and Park, counsel for Martin County Coal Corp.,
210 East Main street, Suite 1000, Lexington, KY 40507
(Certified Mail)
\ lh

1202

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
_..... . - -

1730 K STREET NW, 6TH Ft.OOR
WASHINGTON, D.C. 20006

May 27, 1994

CIVIL PENALTY PROCEEDING

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

v.
FLETCHER GRANITE COMPANY,
INCORPORATED,
Respondent

Docket No. YORK 93-149-M
A. C. No. 19-00008-05522

.

Chelmsford Quarry

ORDER DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION

Before:

Judge Merlin

This case is before me upon a petition -for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977.
On March 9, 1994, I issued a prehearing order directing the
parties to confer about possible settlement and advise by May 4,
1994, the results of these discussions. I also set a hearing
date of May 26, 1994. The Solicitor orally advised my law clerk
by May 4 that this case settled and subsequently on May 9,
1994, filed a motion to approve settlement for the four violations involved in this case. In his motion for approval of
settlement filed May 9, 1994, the Solicitor seeks a reduction in
the penalties from $7,500 to $5,250.
The four violations in this case were all designated significant and substantial and found to be a result of unwarrantable
failure on the part of the operator. In addition, the violations
were specially assessed .
In his motion for settlement approval the Solicitor gives no
reasons to support the proposed reductions in the penalties.
Where, as here, the violations are serious and the operator's
conduct has been characterized as unwarrantable, the Solicitor
must provide a basis to support the settlements for which he
seeks approval . The fact that the suggested penalties remain
substantial does not in and of itself, warrant approval.
The Solicitor is reminded that the Commission and its judges
bear a heavy. responsibility in settlement cases pursuant to
section llO(k) of the Act. 30 u .s . c. § 820(k); See, s. Rep. No.
95-181, 95th Cong., 1st Sess. 44-45, 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 632-633 (1978). It is the judge's responsibility
to determine the appropriate amount of penalty, in accordance

1203

with the six cr:.iteria . set forth in section 110{i) of the Act.
3 o U.S. c. §~·a 2 i) ; Sellersburg stone Company v. Federal Mine
Safety and Health Review Commission, 736 F.2d 1147 (7th Cir.
1984).

o{

Based upon the Solicitor's motion, I have no grounds upon
which to conclude that the recommended penalties of $5,250 are
appropriate under the six criteria of section 110{i).

-

In light of the foregoing, it is ORDERED that the motion for
approval of settlem~nt be DENIED.
It is further ORDERED that within 30 days of the date of
this order the Solicitor submit additional information to support
his motion for settlement. Otherwise, this case will be set for
hearing.

\

~·

Paul Merlin
Chief Administrative Law Judge
Distribution:

{Certified Mail)

Ralph R. Minichiello, Esq., Office of the Solicitor,

u. s.

Department of Labor, One congress Street, 11th Floor, P. o. Box

8396, Boston, MA

02114

Ms. Cheryl A. Gaulin, Payroll Coordinator, Fletcher Granite co.,
Inc., Groton Road, West Chelmsford, MA 01863
/gl

1204