July 1983
Commission Decisions
7-15-83

Jones & Laughlin Steel Corp.

PENN 81-96-R

Pg. 1209

LAKE 82-97

Pg.
Pg.
Pg.
Pg.

1223
1240
1245
1251

Pg.
WEST 81-301-M
Pg.
CENT 83-4
Pg.
CENT 83-20
Pg.
PENN 83-80
Pg.
SE 83-26-M
Pg.
VA 83-7
Pg.
VA 83-16
Pg.
VA 83-17
Pg.
WEST 83-37-M
Pg.
WEST 83-64-M
Pg.
WEVA 83-171
CENT 82-105/106 Pg.
Pg.
CENT 83-10
Pg.
KENT 83-44
Pg.
PENN 83-72-M
Pg.
PENN 83-90
Pg.
VA 83-29
Pg.
WEVA 83-63
Pg.
CENT 82-107
Pg.
LAKE 83-53
Pg.
PENN 82-326
Pg.
PENN 83-67
Pg.
SE 82-60
Pg.
VA 83-18
Pg.
WEST 82-208-M
Pg.
WEST 83-30-M
Pg.
CENT 83-24
Pg.
WEVA 83-183
Pg.
PENN 82-335
Pg.
EAJ 83-1
Pg.
CENT 82-31-M
Pg.
SE 82-55-D
Pg.
WEST 82-184-M

1256
1262
1264
1266
1268
1271
1273
1276
1278
1281
1283
1285
1291
1293
1296
1299
1301
1304
1307
1310
1313
1316
1318
1320
1323
1325
1328
1331
1334
1339
1359
1367
1376

Administrative Law Judge Decisions
Monterey Coal Co.
Industrial Generating Co.
James Eldridge v. Sunfire Coal Co.
Jimmy Sizemore & David Rife v. Dollar Branch
Coal Co.
7-12-83 American Borate Co.
7-15-83 Mich Coal Co.
7-15-83 Arroyo Mining Co.
7-15-83 Mishbucha Enterprises, Ltd.
7-15-83 Macasphalt, Inc.
7-15-83 C.J. Langenfelder & Son, Inc.
7-15-83 Humphreys Enterprises, Inc.
7-15-83 Viking Mining Corp.
7-15-83 Yakima Cement Products Co., Inc.
7-15-83 Kaiser Sand & Gravel Co.
7-15-83 Ridge Land Co.
7-18-83 R&S Coal Co.
7-18-83 San Juan Coal Co.
7-18-83 Abraxis Coal Co., Inc.
7-18-83 Mercer Lime & Stone Co.
7-18-83 Power Operating Co., Inc.
7-18-83 D. L. & P. Coal Co., Inc.
7-18-83 Energy Coal Corp.
7-19-83 R & S Coal Co., Inc.
7-19-83 Black Beauty Coal Co., Inc.
7-19-83 Crescent Hills Coal Co., Inc.
7-19-83 Ansco, Inc.
7-19-83 Dean Coal Co.
7-19-83 Eastover Mining Co.
7-19-83 Magma Copper Co.
7-19-83 Casper Concrete Co.
7-26-83 Thurber Coal Co.
7-26-83 Maiden Mining Co.
7-27-83 U.S. Steel Mining Co., Inc.
7-27-83 Russell Collins & Virgil Kelley v. MSHA
7-28-83 Servtex Materials Co.
7-29-83 Ray Ward v. Volunteer Mining Corp.
7-29-83 C F & I Steel Corp.
7-06-83
7-08-83
7-11-83
7-11-83

CENT 79-203
KENT 82-41-D
KENT 83-130-D

Commission Decisions

JULY
The following case was Directed for Review during the month of July:
Secretary of Labor, MSHA v. TAMMSCO, Inc., and Harold Schmarje, Docket
Nos. LAKE 81-190-M, LAKE 82-65-M (Judge Koutras, June 9, 1983)
No reviews were filed in which a Denial was issued.

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

20006

July 15, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATiON (MSHA)
Docket No. PENN 81-96-R
and
UNITED MINE WORKERS OF AMERICA
v.
JONES & LAUGHLIN STEEL CORPORATION
DECISION
This case arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V 1981), and involves the
interpretation of the ~ndatory safety standard contained in section
303(d)(l) of the Act, 30 U.S.C. § 863(d)(l)(l976), and the identical
implementing standard, 30 C.F.R. § 75.303. 1/ For the reasons that
1/
Section 303(d)(l) of the Mine Act, and 30 C.F.R. § 75.303, provide
in part:
[l] Within three hours immediately preceding the beginning of
any shift, and before any miner in such shift enters the active
workings of a coal mine, certified persons designated by the
operator of the mine shall examine such workings and any other
underground area of the mine designated by the Secretary or his
authorized representative.
[2] Each such examiner shall examine
every working section in such workings and shall make tests in each
such working section for accumulations of methane with means
approved by the Secretary for detecting methane and shall make
tests for oxygen deficiency with a permissible flame safety lamp or
other means approved by the Secretary; examine seals and doors to
determine whether they are functioning properly; examine and test
the roof, face, and rib conditions in such working section; examine
active roadways, travelways, and belt conveyors on which men are
carried, approaches to abandoned areas, and a~cessible falls in
such section for hazards; test by means of an anemometer or other
device approved by the Secretary to determine whether the air in
each split is traveling in its proper course and in normal volume
and velocity; and examine for such other hazards and violations of
the mandatory health or safety standards, as an authorized representative of the Secretary may from time to time require. [3] Belt
conveyors on which coal is carried shall he examined after each
coal-producing shift has begun. [Sentence numbers added.]
(footnote 1 continued)

83-7-7

follow, we affirm the administrative law judge's holding that coa.1carrying conveyor belts are specifically excepted from this mandatory
standard's requirements for pre-shift examination. 2/ We emphasize
at the outset, however, that we are not deciding whether all entries
around belt conveyors are "active workings," and subject to some form
of inspection under the first sentence of the standard, because that
issue was not litigated below.
On February 17, 1981, Jones & Laughlin Steel Corporation was
issued a citation under section 104(d)(l) of the Mine Act alleging
that it had violated 30 C.F.R. § 75.303 by not pre-shift examining
certain coal-carrying conveyor belt "flights"--that is, sections of
the conveyor beltline system. See Bureau of Mines, U.S. Dept. of
the Interior, A Dictionary of M"iri:ing Mineral, and Related Terms 440
(1968), On February 19, 1981, an order of withdrawal was issued
under section 104(d)(l) for another alleged failure to pre-shift
coal-carrying conveyor belt flights. On both occasions miners had
entered the area where the beltlines were located and begun working
before an examination of the beltline had been conducted. Jones &
Laughlin's Vesta No. 5 Mine, where the citation and order were issued,
is an underground coal mine in which coal haulage is accomplished
largely by a conveyor belt system.
Jones & Laughlin contested the citation and order and a hearing
was held before a Commission administrative law judge. At the hearing,
Jones & Laughlin and the Secretary of Labor stipulated that the belts
in question carried coal, not persons, and that coal was produced on
the shifts during which the citation and order were written. The
parties also agreed that an examination "of the nature specified in
30 C.F.R. § 75.303" was made, but was not conducted within three
hours preceding the beginning of the shift, or before miners entered
and began to work in the areas cited. The belt conveyors were
stipulated to be in "good condition" at the time of the citation
and withdrawal order. ]./

footnote 1 cont'd.
Further, section 318(g) of the Mine Act and the Secretary's
standards identically define key terms used in section 303(d)(l):
"[W]orking section" means all areas of the coal mine from the
loading point of the section to and including the working faces,
"active workings" means any place in a coal mine where miners
are normally required to work or travel.
30 U.S.C. § 878(g)(3) and (4); 30 C.F.R. § 75.2(g)(3) and (4).
The judge's decision is reported at 3 FMSHRC 1721 (July 198l)(ALJ).
]./
The United Mine Workers of America ("UHWA") intervened after the
hearing.

Y

l~J.O

We granted petitions of the Secretary and the ln~lA for discretionary review of the judge's decision. 4/ On review the UMWA.asserts that
the coal-carrying conveyor belts are-"active workings" and must be preshift examined under the first sentence of the standard, and that the
third sentence requires a separate on-shift examination. The UMWA
further asserts that these two examinations cannot be combined. As
discussed below, we reject the UMWA's position that the conveyor belt
equipment at issue is, in and of itself, an active working. Given
our disposition of this case, we need not address the UMWA's other
assertions. ·
The Secretary's position is more involved. He does not argue
that coal-carrying beltlines are "active workings." Further, he
concludes, as we do, that there is no requirement that coal-carrying
belt equipment be pre-shift inspected. Br. 10-13. He argues, however,
that section 303(d)(l) does require a pre-shift examination of all
areas in coal-carrying conveyor belt entries where miners will be
assigned to work on the upcoming shift. The Secretary asserts that,
when examining belts on-shift, both the entry and the belt must be
examined if the entry has not been pre-shift inspected. The Secretary would allow these two inspections to be merged in certain
circumstances.
The Secretary thus asks us to decide whether the areas surrounding
the coal-carrying belt equipment must be pre-shift inspected under the
first sentence of the standard, which refers to "active workings."
After careful examination of the record, we are satisfied that the
Secretary did not present to the judge this complex argument distinguishing between the belt equipment and the entries in which
the equipment is located. Further, the citation and order in this
case both refer to "conveyor belt flights"--as noted above, specific
sections of conveyor belt equipment. In short, the Secretary failed
to litigate below the argument he now asks us to review. As a result,
we have an incomplete and unsatisfactory record on this important
question. Similarly, the judge did not decide this issue, and his
opinion does not contain any discussion of a distinction between belt

!!._/
The American Mining Congress, Bituminous Coal Operators Association,
and Keystone Bituminous Coal Association filed briefs as amici curiae.
Keystone Bituminous Coal Association in its amicus brief requested that
the Commission issue a declaratory order to the Secretary requiring him
to publish his interpretive and policy memoranda regarding 30 C.F.R.
§ 75.303 in the Federal Register. An amicus curiae cannot control the
course of litigation and, generally, may not request relief. See, for
example, Ring v. Roadway Express, Inc., 485 F.2d 441, 452 (5th Cir.
1973); lB J. Moore, T. Currier, Moore's Federal Practice ,[0.411[6] (2d
ed. 1982). Keystone lacks standing to ~ake this request, and therefore
it is denied. Further, no request for a declaratory judgment was
presented to the administrative law judge, or in the petitions for
discretionary review and, thus, such a request is not properly before
us. 30 u.s.c. § 823(d)(2)(A)(iii) and B.

1211

equipment and the entries in which the equipment is located. Absent
a showing of good cause, section 113(d)(2)(A)(iii) of the Mine Act
precludes our review of questions of law and fact not presented to
the judge. 30 U.S.C. § 823(d)(2)(A)(iii). Such good cause has not
been demonstrated. 5/
Under these circumstances, our decision concerns only coalcarrying belt equipment, which is specifically treated in the third
sentence of section 303(d)(l), and which the Secretary agrees need
not be pre-shifted. We interpret the judge's decision as referring
to belt equipment only, and reject any reading to the contrary. If
the Secretary wishes to litigate the question of whether coalcarrying beltline entries must be pre-shifted, he should in a future
case issue a citation and file pleadings and briefs clearly raising
that issue. We now turn to the narrow question before us.
The inspection requirements imposed by section 303(d)(l) are
to be determined by reading that section as a whole. Elementary
principles of statutory construction require that the individual
inspection requirements be read in an harmonious and consistent
manner. Philbrook v. Glodgett, 421 U.S. 707, 713 (1975). See 2A
Sands, Sutherland Statutory Construction§ 46.05 (4th ed. 1973).
The first sentence of section 303(d)(l), which requires pre-shift
inspection of "active workings," is the most general of the three
sentences. Thereafter, Congress proceeded to impose more particular
inspection requirements. In the second sentence of that section,
Congress required pre-shift examination of "working sections," a less
inclusive area than "active workings." In the second sentence,
Congress also specifically mandated inspections of particular areas
and objects in underground mines, e.g., seals and doors, roofs, faces,
and ribs, and active roadways, travelways, "and belt conveyors on
which men are carried ••• " (Emphasis added.) Finally, in the third
sentence Congress specifically directed, "Belt conveyors on which coal
is carried shall be examined after each coal-producing shift has begun."
(Emphasis added.)
Based on the structure of section 303(d)(l), as well as on the
definition of "active workings" in section 318(g) (3)(quoted inn. 1
above), we first conclude, in agreement with the Secretary,__t_b.at--coal-carrying equipment per se is not an active workirrg:-___Active

5/
Indeed, we note that the Secretary's position has evolved
through several stages. The judge held below that the Secretary had
no "consistent or coherent construction of the section in controversy"
and was "unable to cite any written policy or procedure" describing
his interpretation of the standard at issue. 3 FMSHRC at 1733. The
Secretary's current position was not refined and clarified until his
reply brief to us in this case and was not announced to the public
until 3 months after we granted review in this case. Further, there
are discrepancies between his present position and relevant material
in the inspector's manual in effect at the time of the judge's decision.

1 '.' f ·~)
...L ·~· _j_ (...,

workings generally are areas or places in a mine, not equipment. !:_/
As we have emphasized above, we do not decide here whether· the entries
or areas surrounding the belt equipment are active workings.
Further, in section 303(d)(l), Congress distinguished between
coal-carrying beltlines and those that carry miners. Congress in
the second sentence of the standard required pre-shift inspection
of man-carrying belts, and, in the third sentence, required on-shift
inspection of coal-carrying belts. These discrete references to
different belt functions, and clear differences in inspection requirements, demonstrate congressional knowledge of the operation and use
of conveyor belt systems in coal mines. Given this evident
congressional understanding and the specific inspection requirements
imposed as to each type of conveyor belt system, we conclude that
coal-carrying conveyor belts do not have to be pre-shifted.
Our construction of section 303(d)(l) is supported by the
legislative history. Section 303(d)(l) of the Mine Act was adopted
without change from the 1969 Coal Act, and the legislative history
of the Mine Act does not discuss this section. Accordingly, we look
to the legislative history of the 1969 Coal Act and the intent of
the original promulgators of this section. Section 303(d)(l) of the
1969 Coal Act was a revision of a 1952 Coal Act inspection provision
that did not expressly mention beltlines. See section 209(d)(7) of
the 1952 Coal Act, 30 U.S.C. § 471 ~seq. (1964) (repealed 1969).
In the process of amending the provisions of the 1952 Act, the
Senate passed a bill that provided in part that "all belt conveyors"
shall be pre-shift examined. S. 2197, 9lst Cong., 1st Sess. § 204(d)
(1)(1969) reprinted in Senate Subcommittee on Labor, Committee on Labor
and Public Welfare, 94th Cong., 1st Sess., Legislative History of the
Federal Coal Mine Health and Safety Act of 1969, Part 1 at 815-16 (1975)
("Legis. Hist."). The bill to amend the 1952 Act that passed the House
required pre-shift examination of "all belt conveyors on which men are
carried"; it also contained a sentence not found in the Senate version:
"Belt conveyors on which coal is carried shall be examined after each
coal-producing shift has begun." H.R. 13950 § 303(d)(l), Legis. Hist.,
Part 1 at 1417.
The Conference Committee adopted neither all of the Senate version
nor all of the House version. Instead, a hybrid provision appearing in
the Conference Report was enacted as section 303(d)(l) of the Coal Act,
and was re-enacted as section 303(d)(l) of in the Mine Act. Legis. Hist.,
Part I at 1470-71; section 303(d)(l) of the Mine Act (quoted above,
n. 1). The statutory standard enacted by Congress adopted the House
language requiring pre-shift examination of conveyor belts that carry
6/
To the extent that the judge's decision might be read as holding
that the belt equipment involved in this case is an "active working,"
we disagree. We agree with the judge, however, that these belt
conveyors are not within the definition of "working section" in the
Hine Act. Section 318(g) (3) (quoted in n. l above).

1213

persons, and examination of coal-carrying belts "after each coal-producing shift· has begun." Thus, Congress rejected the prop.osed requirement for pre-shift examination of all belt conveyors. We agree with the
judge that this factor is important in determining congressional intent.
3 FMSHRC at 1732-33. Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186,
199-200 (1974). 7I
For the foregoing reasons, we hold that section 303(d)(l) does not
require pre-shift inspection of coal-carrying beltlines. Rather, that
belt equipment must be examined, pursuant to the third sentence of
section 303(d)(l), "after each coal producing shift has begun." We
leave for another day the question of whether entries in which coalcarrying beltlines are located must be pre-shift-inspected.§_/
Accordingly, on the bases explained above the
affirmed and the citation and withdra al order

is

Clair Nfelson, /Commissioner

inte~ ~und

7/
Further evidence of congressional
is
in the sectionby-section analysis and explanation presented by/Senator Williams, a
conferee and manager of the bill, to the Senat~jon its debate on the bill
that became the 1969 Coal Act. Concerning ~~on 303(d), this analysis
states:

Subsection (d) sets forth requirements that the
operator must follow for preshift examinations. This [sic]
provisions are similar to the 1952 act provisions, •••
except for several additional requirements including •.•
an examination of belt conveyors on which men are carried
before each shift, [and]- an examination of coal carrying
belt conveyors after each shift begins ••.•
Legis. Hist., Part I at 1610 (emphasis added). This explanation hy a
key conferee also clearly indicates that Congress distinguished between
conveyor belts that carry persons and those that carry coal, and that
Congress intended that inspections of coal-carrying belts occur after
coal-producing shifts begin.
8/
Our resolution of this case makes it unnecessary to decide whether pre-shift and on-shift inspections may be combined in some
circumstances, a question on which the Secretary and the UMWA differ.

1 '.)

·f

f ~ ...l,. I

j

Commissioner .Lawson dissenting:
Plato observed that "The life which is unexamined is not worth
living." Bartlett's Familiar Quotations 93 (14th ed. 1968). The mine
which is unexamined, however, may snuff the life and moot its examination.
Progress in the two millenia since Plato has been hard won, but one would
hope we have advanced beyond requiring helots to face the perils of an
uninspected mine.
The majority nevertheless is determined to avoid deciding whether
the uninspected entries in which these miners were working, and in which
these coal carrying conveyor belts were located, are active workings,
and therefore subject to preshift inspection. I find this misdirected
diligence to be extraordinary given the operator's concession that these
are active workings 1/ and since this is the central issue before us,
on which the Secretary's and UMW's appeals are premised.
The situation here presented is one of frequent, indeed, daily
repetition, at virtually every coal mine in the nation, and my colleagues'
decision fails to provide future guidance for the industry, the miners,
and the Secretary.
The assertion that the question of " ..• whether the areas surrounding
the coal carrying belt equipment must be preshift inspected •.. " was not
presented by the Secretary to the judge below is simply wrong. Slip op.
at 3. Contrary to the majority's determination, the language of the
citation, withdrawal order, and action to terminate was directed towards
this operator's failure to preshift examine the mine entry or area in
which the equipment was located. ]:_! Indeed, in my view, a violation is
established whether or not the citation was of the area, or the area
with the equipment therein, so long as the mine entry or area was part
of the cited locale. Here, of course, there is no dispute that this
area was not preshift examined. Tr. 7.
The citation stated:
Evidence indicated that the A, B, and C conveyor belt
flights of 44 Face had not been preshift examined for
the day shift. An entry was not in the mine examiner's
report or at the date board along the belt flights indicating that an examination was made before workmen of
the day shift entered the area along each belt flight.
[Emphasis added.]

1__/ J&L admitted the cited areas were active workings before this Commission.
Tr. oral arg. 33-35. See also Tr. 18-19.
2/ "Entry" is defined as: a. In coal mining a haulage road, gangway or airway
to the surface. b. An underground passage used for haulage or ventilation, or
as a manway •.. c. A coal heading. Bureau of Mines, U.S. Department of Interior,
A Dictionary of Mining, Mineral and Related Terms, at 389 (1968).

1 r-:.." ...l·• ~).·

Similarly, in the withdrawal order, alleging a violation of the same
standard and issued two days after the citation, the insp~ctor wrote, in
describing the "Area or Equipment":
The area not preshifted was the 1 Face conveyor belt
haulage A and B flights. [Emphasis added.]
Further, the Secretary's Opposition to J&L's application for temporary
relief--filed by the Secretary on March 19, 1981, following the citation
(February 17, 1981) and order (February 19, 1981) contained the following
statements:
b.

MSHA not only can cite an explicit requirement of
30 CFR 75.303 which mandates preshift examinations
of conveyor belt (and other) entries regardless of
the transportation of men, it can show that this
requirement was the basis for the issuance of the
subject citation and order.

c.

The holding of the Consol case specifically dealt
with on-shift examination, and therefore is not
advisory precedent for this case where the material
issue centers upon preshift examinations of areas
where miners are required to work or travel.
[Emphasis added.]

See also Tr. 40, 47 (testimony of Inspector Beck).
The issue of failing to preshift the areas cited where miners were
observed working along coal carrying belts was also presented to the
administrative law judge by the Secretary. In his post hearing brief to
the judge, the Secretary argued:
At the outset, the Secretary reiterates that "the material
issue centers on preshift examinations of an area where miners
are required to work or travel" (Tr. 30).
Secretary's post hearing brief at 8.
J & L urges this proposition while admitting that the
areas involved in the citation and order were not only in
belt entries, but were also active workings (Tr. 18-19).
Id. at 9.
The construction urged by J&L would ascribe to Congress
the untenable, illogical intent that all miners except those
working in the coal-carrying belt conveyor entries should
receive the benefit of having a preshift examination of their
work place.
Id. at 17.

On the basis of common sense, experience, legislative
history, sound statutory construction and case authority, the
Secretary urges that all places where miners are normally
required to work or travel be examined within three hours
preceding the beginning of any shift and before any miners
in such shift enter these areas.
Id. at 22.
Beyond .these obvious, forceful and repeated assertions, the Secretary
petitioned this Commission to review the ALJ's failure to find a violation
for the operator's failure to preshift the area here involved. That petition
was granted in its entirety. In his petition, the Secretary left no doubt
that he was citing the area, not the coal-carrying belts when he concluded:
The preshift examiner is not required to test the
Conveyor belts itself.

In sum, under the standard, an operator must provide a
pre-shift examination of those parts of the coal-carrying
conveyor belt entries where miners normally work or travel.
The examination must cover the items enumerated in the
second sentence of the standard.
Petition for discretionary review at 9.
The Secretary supported this argument in his brief (hr. at 9-14, 17,
22) and reply brief (r. hr. at 3 & n. 1, 14, 16, 17) to the Commission.
Since it is undisputed that there was no preshift examination of these
areas involved (Stip. 119, Tr. 7) where the inspector observed miners working
along the belts (Tr. 109, 110), only one conclusion can be drawn--that a
violation of 75.303 occurred.
The majority has, however, parsed the statutory language beyond the
fondest desires of the most scrupulous grammarian. The issue presented
is whether the mine operator is required by section 303(d)(l) to preshift
active workings of mines along coal conveyor belts. By refusing to consider
these cited areas as active workings even though this is not in serious
dispute between any of the parties, and although miners wer~ regularly
assigned to work, and were observed working along this operator's coal
carrying belt lines (Tr. 109, 110), the majority has denied these miners
a preshift examination of their work area.
The statute in relevant part provides:
Within three hours immediately preceding the beginning
of any shift, and before any miner in such shift enters
the active workings of a coal mine, certified persons
designated by the operator of the mine shall examine
such workings and any other underground area of the mine
designated by the Secretary .••. Belt conveyors on which
coal is carried shall be examined after each coal-producing
shift has begun. [Emphasis added.]

l (.,n J..'··:iI

The first sentence of section 303(d) -thus requires a preshift
examination of active workings " .•• before any miner in such shift enters
the active workings." Section 303(d), supra. The judge found the cited
areas to be active workings and the parties do not disagree with this
finding. See n. 1, supra. As active workings, the cited areas are
therefore required to be preshif t examined, unless otherwise excluded or
exempted by the statute. The last quoted sentence (supra), argues
against any exclusion, and for the requirement of a preshift examination
of the area cited by the inspector in this case. The first sentence of
section 303 (d) (1) describes locales, i.e., "active workings." Section
318(g)(4) of the Act in turn defines "active workings" as "any place in
a coal mine where miners are normally required to work or travel."
In 1969 Congress amended the preshift examination provisions of the
1952 Act. This became section 303(d)(l) of the 1969 Coal Act, now section
303(d)(l) of the 1977 Mine Act. The Senate Report accompanying the bill
in 1969 stated the reason for requiring examinations of all belt conveyors:
Many mine fires occur along belt conveyors as a result
of defective electric wiring, overheated bearings, and
friction; therefore, an examination of the belt conveyors
is necessary.
S. Rep. No. 411, 9lst Cong., 1st Sess. 57 (1969), reprinted in Senate
Subcommittee on Labor, Committee on Labor and Public Welfare, 94th Cong.,
1st Sess., Legislative History of the Federal Coal Mine Health and Safety
Act of 1969, Part I at 183 (1975).
Only a strained reading of the plain language of the Act could lead
to the conclusion that by the 1969 amendments, or their 1977 reenactment,
Congress intended to deny miners working along coal carrying belt conveyors
the protection of preshift examination of their working places. Congress,
as reflected in both the legislative history and the statutory language,
was increasing, not decreasing examinations, and certainly never contemplated
miners working in uninspected areas.
The majority's view of 75.303 and its sponsoring statutory provision,
section 303(d)(l), would not improve or promote safety, but would reduce
the protection afforded to miners. This apparently would deny preshift
examinations of active workings along coal conveyor belts, and would
certainly deny onshift examinations of coal conveyor belts, as in this
case for 3-1/2 hours or until the operator performed such during the
shift. It would also deny a miner working along a coal conveyor belt on
a non coal-producing shift both a preshift and an onshif t examination of
his working place, and would eliminate all preshift examinations of an
active working if the operator placed a coal conveyor belt in such
workings. Such a construction is contrary to the intent of Congress as
expressed literally in the standard and statute involved here. Instead,
the Act should be construed liberally when improved health and safety
for the miners will result, or when it will carry out the purpose of the
Act. United States v. American Trucking Association, Inc., 310 U.S. 534,
543-544 (1940).

1

.\

t .-,
;,,, ..I..()

The possibility of ignition, a fortiori in a "gassy" mine such as
the one here operated by J&L, presents the spectre of a major calamity. ]./
To understate the case considerably, sending miners to work in uninspected
areas of a gassy mine is not in accord with my understanding of the mandate
of the Act.
As the Secretary has well stated:
The construction urged by J&L would ascribe to Congress
the untenable, illogical intent that all miners except
those working in coal-carrying belt conveyor entries
should receive the benefit of having a preshift examination of their work place.
Secretary's post hearing brief at 17.
The statute, the legislative history and the majority's analysis
fail to demonstrate how a requirement of an examination of "active
workings" prior to the start of a shift, and an examination of coal
carrying conveyor belts while the mining is underway on the shift,
imposes a burden on the operator which outweighs the miner's need to be
protected in an area in which he or she is to work. The language of the
Act requires no less, and the preventive purpose and thrust of the
statute, even if subjected to a balancing analysis, mandates in favor of
such a requirement.
The problem with the majority's ignoring the failure to preshift the
areas along the belts where miners were working is that, if there were
no belts in an active working, the area would be subject to preshift
examination. If, however, the operator installed a coal-carrying conveyor
belt in such ah area, then the requirement of preshift inspection for
such active working vanishes. This makes no sense as a matter of either law
or logic, and indeed turns enforcement on its head, since the additional
potential hazard of adding belts to a mine entry, perversely under the
majority's view, eliminates the preshift inspection of the area.
The judge below has drawn no distinction between entries with, or
without, coal carrying belts, nor I suggest should we, since such is
unnecessary to our decision. A more exact delineation of the inspection
of conveyor belts in mine entries may well be more appropriately left to
further clarification by the Secretary. Whether or not combined inspections
are appropriate is also better left to the process of regulatory promulgation, particularly given the varying circumstances and ramifications of

)_/The mine here involved is classified as "gassy", and therefore presents
even more potential hazards than most. Tr. oral arg. 41-43; and see section
103(i) of the 1977 Act. Interestingly, too, J&L--all of whose mines are
located in West Virginia and Pennsylvania--has concededly examined all of its
mines, preshift, including coal carrying belts, since 1961, although allegedly
only before the first coal producing shift of each work week. Tr. oral arg.
42, 43.

1 ') ..L., ,J0
f-..1

one, two or three shift operations, in which the hazard presented may be
of markedly varying potential severity, and the time between inspections
accordingly widely disparate. !±./ Finally, the issue of whether a preshift
examination of coal-carrying belts is mandated for entries, when no miners
are working along such belts, is not presented by this case.
In summary, as the ALJ found and the parties here conceded, these
are active workings. They are thus required to be preshift examined
pursuant to the first sentence of section 303(d)(l). The prophylactic
purpose of the statute requires that such active workings be inspected,
and that such inspection not be denied because of either the presence,
or the absence, of coal-carrying conveyor belts in those entries.
Based on the clear language of section 303(d)(l) of the Act and its
sponsored regulation (30 CFR § 75.303), the legislative history, and in
the interest of promoting safety for the miner, 'i/ I would find that the
statute and the standard involved require a preshif t examination of those
active workings along a coal conveyor belt, on any shift, before a miner
enters his or her work place.
I therefore dissent from the majority's decision, would hold that
this operator violated the Act as alleged in the citation and order, and
would remand for further proceedings.

/

'
~7!-{J·':-J-i-1
........

A. E. Lawson, Commissioner

!±_/ Whether or not all or only part of these coal-carrying conveyor belts must
be examined preshift may bear further scrutiny, inasmuch as the Secretary has
the authority to designate more precisely the underground areas of the mine
to be examined. Section 303(d)(l). In any event, the promulgation of
specific regulations, with all parties having the opportunity to comment
thereon, appears obviously preferable to the enunciation of dicta in the
instant case.
5/ If section 303(d)(l) is ambiguous, and I do not believe this to be the
case, any ambiguity must be interpreted to promote safety and prevent death
and injury to miners. Section 2(e) of the Act. District 6, United Mine
Workers of America v. United States Dept. of the Interior, Board of Mine
Operations Appeals, 562 F.2d 1260, 1265 (1977); UMWA v. Kleppe, 532 F.2d
1403, 1406 (1976), cert. denied 429 U.S. 858 (1976); Munsey v. Horton,
507 F.2d 1202, 1210 (1974); Reliable Coal Corp. v. Morton, 478 F.2d 257,
262 (1973); and Old Ben Coal Co., 1 FMSHRC 1954, 1957, 1958 (December 1979).

1n_.'f)
- - •"-i l'·"'r;I

...

Distribution
Henry McC. Ingram, Esq.
R. Henry Moore, Esq.
Thomas C. Reed, Esq.
Rose, Schmidt, Dixon & Hasley
900 Oliver Building
Pittsburgh, PA 15222
Debra L. Feuer
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Kurt Kobelt, Esq.
United Mineworkers of America
900 15th St., N.W.
Washington, D.C. 20005
Charles P. O'Connor, Esq.
E. Carl Uehlein, Jr., Esq.
Robert A. Dufek, Esq.
Morgan, Lewis & Bockius
1800 M Street, N.W.
Washington, D.C. 20036
Henry Chajet, Esq.
American Mining Congress
1920 N Street, N.W.
Washington, D.C. 20036
Robert C. Gombar, Esq.
Rose, Schmidt, Dixon & Hasley
1575 Eye Street, N.W.
Washington, D.C. 20005

nn

l r-~

,.::,

.r

l.

Administrative Law Judge Decisions

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

22041

(703) 756-6210/11/12

JUL

Civil Penalty Proceeding

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

Docket No. LAKE 82-97
A.O. No. 11-00726-03502
Contest of Citation

v.

Docket No. LAKE 82-82-R
Citation No. 1004993;4/28/82

MONTEREY COAL COMPANY,
Contestant-Respondent

No. 1 Mine

v.
UNITED MINE WORKERS OF AMERICA,
Intervenor

DECISIONS
Appearances:

Edward H. Fitch, IV, Attorney, U.S. Department of Labor,
Arlington, Virginia, for the Petitioner-Respondent MSHA;
Carla K. Ryhal, Esquire, Houston, Texas, for the ContestantRespondent Monterey Coal Company; Mary Lu Jordan and
Joyce A. Hanula, Esquires, Washington, D.C., for the
Intervenor UMWA.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern a citation issued by an
HSHA inspector pursuant to Section 104(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 820(a), charging the respondent-contestant
Monterey Coal Company with a violation of Section 103(f) of the Act. The
citation no. 1004993, was issued on April 28, 1982, by MSHA Inspector
Lonnie D. Conner, and the "condition or practice" is described as follows:
The operator has refused to pay Miner's Representative
Frank H. Barrett, Jr., for the period of time that he
accompanied Federal Coal Mine Inspector Joe S. Gibson
on a roof control technical investigation of the mine.
The investigation was conducted on March 23, 1982.
These cases were docketed for hearing in St. Louis, ~·fissouri, commencing
on March 17, 1983. However, the hearing was cancelled after the parties agreed
to submit the matter to me for summary disposition based on joint stipulations
by the parties, with supporting briefs.

1 003·
,_. i~

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
30 U.S.C. § 801 et~·
2.

Sections 105 and llO(i) of the Act.

3.

Commission Rules, 29 CFR 2700.1

4.

Section 103(a) of the Act provides:

et~·

Authorized representatives of the Secretary or the
Secretary of Health, Education, and Welfare shall
make frequent inspections and investigations in
coal or other mines each year for the purpose of
(1) obtaining, ultilizing, and disseminating
information relating to health and safety conditions,
the causes of accidents, and the causes of diseases
and physical impairments originating in such mines,
(2) gathering information with respect to mandatory
health or safety standards, (3) determining whether
an imminent danger exists, and (4) determining whether
there is compliance with the mandatory health or
safety standards or with any citation, order, or
other requirements of this Act. In carrying out
the requirements of this subsection, no advance
notice of an inspection shall be provided to any
person, except that in carrying out the requirements
of clauses (1) and (2) of this subsection, the Secretary
of Health, Education, and Welfare may give advance
notice of inspections. In carrying out the requirements
of clauses (3) and (4) of this subsection, the Secretary
shall make inspections of each underground coal or
other mine in its entirety at least four times a year,
and of each surf ace coal or other mine in its entirety
at least two times a year. The Secretary shall
develop guidelines for additional inspections of
mines based on criteria including, but not limited
to, the hazards found in mines subject to this Act,
and his experience under this Act and other health
and safety laws. For the purpose of making any
inspection or investigation under this Act, the
Secretary, or the Secretary of Health, Education,
and Welfare, with respect to fulfilling his
responsibilities under this Act, or any authorizied
representative of the Secretary or the Secretary of
Health, Education, and Welfare, shall have a right
of entry to, upon, or through any coal or other
mine. [Emphasis supplied].

5.

Section 103(f) of the Act provides:
Subject to regulations issued by the Secretary,
a representative of the operator and a representative authorized by his miners shall be given an
opportunity to accompany the Secretary or his
authorized representative during the physical
inspection of any coal or other mine made pursuant
to the provisions of subsection (a), for the
p~rpose of aiding such inspection and to participate
in pre- or post-inspection conferences held at the
mine. Where there is no authorized miner representative, the Secretary or his authorized representative
shall consult with a reasonable number of miners
concerning matters of health and safety in such mine.
Such representative of miners whq is also an employee
of the operator shall suffer no loss of pay during
the period of his participation in the inspection
made under this subsection. To the extent that
the Secretary or authorized representative of the
Secretary or authorized representative of the
Secretary determines that more than one representative
from each party would further aid the inspection, he
can permit each party to have an equal number of such
additional representatives. However, only one such
representative of miners who is an employee of the
operator shall be entitled to suffer.no loss of pay
during the period of such participation under the
provisions of this subsection. Compliance with this
subsection shall not be a jurisdictional prerequisite
to the enforcement of any provision of this Act.
[Emphasis Supplied].

Issues
The parties stipulated that the following issues are presented for
decision by me in these proceedings:
1. Is an operator required by Section 103(f) of the Act to
compensate a miner's representative for the time spent accompanying a
federal inspector on a spot inspection?
The parties agree that relevant decisions regarding
this issue have been rendered by the United States
Court of Appeals for the District of Columbia
in United Mine Workers of America v. Federal Mine
Safety and Health Review Commission, 671 F.2d 615
(D.C. Cir. 1982) cert. denied, 74 L.Ed 2d 189

l ''~l ',.:). , ., •.:. J

(Oct. 12, 1982) and by the Federal Mine Safety
and Health Review Commission Nos. 79-2537 and
79-2518, Secretary of Labor v. Helan Mining Company,
Docket No. PITT 79-11-P (Nov. 21, 1979); Nos. 79-2536
and 79-2503; Kentland-Elkhorn Coal Corp~ v. Secretary
of Labor, Docket No. PIKE 78-399 (Nov. 30, 1979); and
No. 80-1021; Secretary of Labor v. Allied Chemical
Corp., Docket No. WEVA 79-148-D (Dec. 6, 1979).
2. Is a roof control technical investigation different from a spot
inspection for purposes of determining an operator's obligation to compensate a miner's representative for the time spent accompanying a federal
inspector pursuant to Section 103(f) of the Federal Mine Safety and Health
Act of 1977?
Any additional issues raised by the pleadings and briefs are identified
and disposed of in the course of these decisions.
The parties stipulated and agreed to the following:
1. Monterey Coal Company owns and operates the No. 1 Mine (Identification
No. 11-00726), which is located in Carlinville, Macoupin County, Illinois,
and the mine is subject to the Act.
2. Respondent is subject to the jurisdiction of the Act, the presiding
Judge has jurisdiction to hear and decide these cases, and the citation
in issue was properly served on the respondent.
3. On March 23, 1982, Federal Coal Hine Inspector Joe S. Gibson,
a duly authorized representative of the Secretary and a roof control
specialist, conducted what is referred to by MSHA as a "CEA-Roof Control
Technical Investigation" (Investigation) of tl:J,e Monterey No. 1 Mine.
4. A "CEA-Roof Control Technical Investigation" is different from a
"regular" inspection. Each activity code, including a "CEA-Roof Control
Technical Investigation," is defined as indicated in an attached Exhibit "A",
dated June 3, 1979. These activity codes and definitions are included
in the MSHA Citation and Order Manual. The activity codes are used by
the Department of Labor's Mine Safety and Health Administration both to
substantively describe the various enforcement procedures conducted by
MSHA and to record the utilization of inspector work hours by means of
an automated computerized coding system. The activity codes cover a
broad range of activities which are variously applicable to individual
inspectors, but collectively are applicable to the entire agency's function.
5. The Secretary and the UMWA consider a CEA-Roof Control Technical
Investigation enforcement procedure to be a type of spot inspection covered
by Section 103(f) walk-around pay provisions. Monterey does not agree
with this determination and maintains that this type of investigation is
not a type of spot inspection, nor any type of inspection, and that it is
a type of investigation which does not constitute an inspection for purposes
of Section 103(f)'s walk-around pay provisions.

1 n Ii.'_..,
.1. ..... ·- t)

6. The parties agree that the activities involved in the March 23,
1982, enforcement procedure consisted of a one day investigation to determine
if the operator was complying with the provisions of 30 C.F.R. 75.200 throug~
75.205 in particular and all other standards in general. The parties
further agree that during said enforcement procedure, Inspector Gibson
may and does cite violations of any standard observed. However, his
primary responsibility is to observe the roof bolting activities, to
measure room, ~try, crosscut widths, and roof bc•lt spacing, to sound
the roof and ribs, and to determine if the operator is in compliance with
all the provisions of the mine's roof control plan. In fact, during the
investigation in question, a citation of alleging a violation of the
Monterey No. 1 Mine's roof control plan was issued, as well as a termination
thereof. This enforcement procedure is a regular function of MSHA roof
control specialists.
7. During said investigation, Frank H. Barrett, Jr., a representative
of the United Mine Workers of America, accompanied Mr. Gibson, but
Mr. Barrett was not paid by Monterey for the period of his participation
in said investigation.
8. On April 28, 1982, Federal Coal Mine Inspector Lonnie D. Conner,
a duly authorized representative of the Secretary, issued Citation No. 1004993
(Citation) and served the same upon Dick Mottershaw, Safety Coordinator for
Monterey. The Citation stated that it was issued pursuant to Section 104(a)
of the Act and alleged a violation of Section 103(f) of the Act. Under the
heading "Condition or Practice" the Citation alleges that:
The operator has refused to pay miner's representative
Frank H. Barrett, Jr. for the period of time that he
accompanied Federal Coal Mine Inspector Joe S. Gibson
on a Roof Control Technical Investigation of the mine.
The investigation was conducted on March 23, 1982.
9. On April 30, 1982, Monterey paid Mr. Barrett for the period of his
participation in said investigation. Thereafter, on May 3, 1982, Mr. Conner
issued Termination No. 1004993-1, which under the heading "Justification
for Action Checked Below" stated that:
The operator has paid Miner's Representative Frank H. Barrett,
Jr. for the period of time that he accompanied Federal
Coal Mine Inspector Joe S. Gibson on a (sic) investigation
of the mine.
10. Monterey is a large operator and the assessment of a civil penalty
in this matter, if appropriate, would not adversely affect Monterey's
ability to remain in business.
11. The Monterey No. 1 Mine's history of previous violations is
indicated in a computer printout of violations issued in the two years
preceding April 28, 1982 (see exhibit "G").

Discussion
These proceedings deal with the scope of the right, pursuant to
Section 103(f) of the Act, of a representative of miners to be compensated
for the time spent accompanying the Secretary's authorized representative
during the inspection of a mine ("walkaround pay"). The material facts
are not in dispute and have been sti~ulated to by the parties. Thus, the
matter for determination is one involving a question of law, and the
parties seek summary decisions pursuant to Commission Rule 29 CFR 2700.64(b).
MSHA and the UMWA contend that Monterey's declination to compensate
the miners' representative for the period of his participation of the roof
control technical investigation on the occasion in question constitutes
a violation of Section 103(f) pursuant to the holding in United Mine Workers
of America v. Federal Mine Safety and Health Review Commission, 671 F.2d
615 (D.C. Cir. 1982), cert. denied, 74 L.Ed. 2d 189 (Oct. 12, 1982) ("UMWA
v. FMSHRC"). Monterey submits, however, that the right to walkaround pay
is limited to mandatory inspections of a mine as required by Section 103(a)
of the Act, and does not extend to other inspections or investigations
required, authorized or permitted by the Act. Xonterey asserts that a roof
control technical investigation is not such a mandatory inspection
required by Section 103(a). Thus, it is Monterey's position that its
declination to pay the miners' representative for the period of his
participation in the Roof Control Technical Investigation on the occasion
in question was not a violation of the Act and, consequently, the citation
and proposal for a penalty are invalid and should be vacated and dismissed.
Monterey's Arguments
Monterey concedes that there is a right to walkaround pay under
Section 103(f) of the Act in connection with ''.regular inspections" conducted
under Section 103(a). Monterey suggests that the term "regular inspections"
has been interpreted by MSHA and the mining industry to connote the
mandatory inspections mandated by Section 103(a), and that the term
"spot inspection" has come to have the accepted meaning of any inspection
other than the mandatory inspections of the entire mine.
Monterey argues that when read together, Sections 103(f) and 103(a)
limit the right of the miners' representative to compensation for walkaround
activities to only the miners' representative's participation in the
"regular inspections" mandated by Section 103(a) of the Act. Further,
Monterey argues that if Congress had intended the walkaround pay right to
apply to all inspections, then it could easily have used the phrase
"any inspection" in Section 103(f) instead of referring to an inspection
"made pursuant to the provisions of subsection (a)," the language actually
chosen. Monterey points out that Section 103(h) of the 1969 Act did
refer to "any inspection," and in other sections of the Act where Congress
intended a provision to apply to all inspections, Congress specifically
used the term "any inspection."

1 n

( l ~J

.J..,-;~U

Monterey maintains that Section 103(a) provides the substantive
authority fqr virtually all of the inspections and investigations conducted
by MSHA under the Act, probably including those specifically authorized
by other sections of the Act. However, if walkaround pay is not limited
to the statutory minimum number of inspections at each mine, then the phrase
"pursuant to subsection (a)" in Section 103(f) is rendered meaningless.
Recognizing the fact that the Court of Appeals for the District of Columbia
Circuit held to the contrary in UMWA v. FMSHRC, supra, and held that miners'
representatives have the right to be compensated for the time spent
accompanying MSHA inspectors during spot and regular inspections, Monterey
takes the position that the Court's decision w~s erroneous, and that it
is not binding on the Commission or its Judges. Citing a number of
Commission decisions which uniformly held that Section 103(f) grants
walkaround pay rights to miners' representatives only with respect to
regular inspections required by Section 103(a), and not with respect to
spot inspections, and citing the legislative history remarks of Representative
Carl D. Perkins in support of its argument., Monterey strongly suggests
that the Court's decision in UMWA v. FMSHRC should be ignored.
With regard to MSHA's Interpretive Bulletin, 43 Fed. Reg. 17546,
April 25, 1980, which lists spot inspections, as well as regular inspections,
among the types of activities giving rise to walkaround rights, Monterey
argues that I am not bound by the information contained therein.
In further support of its position, Monterey states that even if
its obligation to compensate the miners' representative for the time spent
accompanying an inspector extends to spot inspections, it does not extend
to a roof control technical investigation. In support of this argument,
Monterey maintains that investigations and inspections are distinguishable,
and the fact that Congress included both inspections and investigations
within the coverage of Section 103(a), but used only the term insoection
in Section 103(f), clearly indicates that it qid not intend investigations
to be included within the walkaround provisions of Section 103(f).

lI
I

.--·---_J

Monterey points to the fact that throughout the Act some provisions
use only the terms "inspection", and some use only the term "investigation",
and some use both terms. However, Honterey suggests that the two terms
are never used interchangeably in the Act, and that they are used to mean
different things. Since, in all cases, the usage of the terms is logical
and consistent with the different meanings of the terms, Monterey concludes
that it is inescapable that throughout the Act, and specifically in
Section 103(f), Congress made a purposeful and intelligent distinction
between the two terms. As an example, Monterey cites the Act's provision
in Section llO(e) restricting a person from giving advance notice of an
inspection, while there is no restriction in connection with investigations.
Monterey cites the Activity Codes included in MSHA's Citation and Order
Manual, as a further indication that the Secretary also recognizes the
distinction between an inspection and an investigation (Exhibit "A",
Stipulations). Under Categories A ("Mandatory Inspections and Investigations"),

B ("Policy Inspections and Investigations"), and C ("Auxiliary Inspections,
and Investigations"), types of inspections and investigations are distinctly
delineated. Further, although other inspections coded and defined in
the Manual do not have counterpart investigations, Monterey points to
the fact that in Category C several of the inspections and investigations
parallel one another, namely: CCA-Roof Control Technical Inspection;
CEA-Roof Control Technical Investigation; CCB-Haulage Technical Inspection;
GEE-Haulage Technical Investigation; CCC-Ventilation Technical Inspection;
and CEC-Ventilation Technical Investigation. This shows that inspections
and investigations are different activities, otherwise MSHA would not
have coded and defined an inspection and an investigation to address
the same concern.
In response to MSHA's assertion that a roof control technical
investigation is an enforcement procedure and, as such, is similar to
an inspection since the inspector may cite violations of any standards
observed during such an investigation, thereby making it subject to the
walkaround provisions of the Act, Monterey maintains that while the purposes
for conducting inspections and investigations may be the same under Section 103(a)
of the Act, there is no indication that the two terms were intended to
mean the same thing. The fact that while conducting a roof control
technical investigation an inspector may issue citations for violations
of standards other than the roof support standards does not render inspections
and investigations synonymous, and Section 104(a) requires an inspector
conducting either an inspection or investigation to issue a citation whenever
he observes a violation of the "Act, or any mandatory health or safety
standard . . . "
In further support of its position in these proceedings, Monterey
maintains that sound policy reasons exist for distinguishing between
technical investigations, if not spot inspections, and regular inspections,
consistent with the remedial functions of the Act. The first sentence of
Section 103(f) expressly states that the purpose of the right to accompany
inspectors, and the right to be paid therefor, is to aid in the inspection.
Regular inspections and technical investigations are entirely different
in scope and purpose. Because regular inspections are detailed and extensive,
covering every aspect of health and safety in the mine, it is conceivable that
the miners' representative accompanying an inspector on a regular inspection
could improve the inspector's effectiveness by contributing personal
familiarity with the particular mine and by providing another "pair of eyes,"
and could enhance miner consciousness as to the complex regulatory scheme
created by the Act.
In contrast, argues Monterey, a technical inspection, by its very
nature, focuses on one hazard and usually involves narrow, technical
procedures. Inspectors who conduct technical investigations are normally
specialists who specialize in one type of safety or health standard, such
as respirable dust, ventilation control, or electrical standards. They
are especially qualified by training, experience and familiarity with a
particular problem. The presence of the miners' representative is not likely

("") ''· ()
1 r:.0.

to be terribly helpful to a specialized inspector conducting narrow
technical proc.edures. Nor would the observation by the miners'
representative of the inspector conducting these narrow technical
procedures enhance the consciousness of miners who perform or observe
similar procedures on a regular basis. Monterey points out that a
Roof Control Technical Investigation, such as that conducted on the
occasion in question, is conducted to determine an operator's compliance
with the standards relating to roof support and includes observation
of roof bolting activities, measurement of room, entry, crosscut widths,
and roof bolt spacing; and sounding of the roof. and ribs, and the inspector
who conducted the Roof Control Technical Investigation in question was,
indeed, a roof control specialist.
Monterey concludes that because the primary purposes for the miners'
representatives to accompany an inspector are not applicable in the
situation of a technical investigation, its obligation to compensate
the representative for doing so should noi extend to technical inspections
in general, nor to roof control technical investigations in particular.
MSHA's Arguments
In support of its case, MSHA relies on the February 23, 1982, decision
by the U.S. Court of Appeals for the District of Columbia Circuit in ill~JA v.
Federal Mine Safety and Health Review Commission, 671 F.2d 615 (D.C. Cir.
1982), cert denied, 74 L. Ed. 2d 189 (Oct. 12, 1982), holding that the right
to walkaround pay is coextensive with the right to accompany an inspector
under Section 103(f) of the Act, and that spot inspections, as well as
regular inspections, were included in the coverage of Section 103(f)
for walkaround pay purposes.
HSHA asserts that the Court of Appeals interpretation of Sect~on 103(f)
should be followed and applied until such time as that interpretation is
reversed or modified by the D.C. Circuit, another Federal Court of appeals,
or the Supreme Court. MSHA argues that the D.C. Circuit properly interpreted
the scope and application of Section 103(f) to require an operator to
compensate a miner's representative for the time spent accompanying an
inspector on a spot inspection, and that Monterey's suggestion that I
should ignore the Court's interpretation should be rejected.
MSHA maintains that the inspection at issue in this proceeding is a
type of spot inspection activity which has been described as a roof control
technical investigation. It is MSHA's view that the use of the word
"investigation" does not negate the reality that the activity involved an
inspection of the mine related to its roof control plan, that the enforcement
procedure was an inspection activity related to the specifics of the mine's
roof control plan and was conducted by an authorized representative of the
Secretary with special expertise in roof control, and that the procedure
concerns one of the most important aspects of maintaining a safe roof
control program.

1n

'~ '

....L' ~ u ..l

MSHA points to the fact that the various enforcement procedures it
conducts are-described and coded as indicated in Exhibit D, which is a part
of the stipulations. MSHA states that these codes are used by the agency
to keep track of the utilization of inspector work hours, and that the
substance of an inspector's activity must serve as the foundation to
determine the applicability of Section 103(f), not the code chosen to
track the inspector's use of his time.
MSHA concludes that if the Commission and its Judges were to ignore
the Court of Appeals precedent, the Secretary would be placed in the
burdensome and costly position of repeatedly issuing citations, defending
them before the Commission, and then seeking review before the D.C. Circuit.
Such a result, suggests MSHA, would be contrary to public policy and
practical reality and would make a travesty of the Court's ruling. MSHA
concludes further that I should give full force and effect to the Court
of Appeals decision and implement the Court's statutory construction of
Section 103(f) by affirming the citation, determining an appropriate penalty,
and dismissing the notice of contest filed. in this matter.
The UMWA's arguments
The UMWA's position in this case is similar to that taken by MSHA.
Citing UMWA v. FMSHRC, supra, the UMWA emphasizes the fact that the D.C.
Circuit rejected the position taken by Monterey in the instant proceeding
and upheld the Secretary's Interpretive Bulletin, requiring walkaround
pay for spot inspections. In so doing, the Court reversed the Commission's
decision in Secretary of Labor v. Helen 11ining Company, 1 FHSHRC 1796
(1979), and the UMWA urges that I reject the notion advanced by Monterey
that I should ignore the D.C. Circuit and apply the Helen Mining decision.
In support of its position, the UMWA points out that the Commission
remanded the UMWA v. FMSHRC line of cases to the appropriate Judges,
with directions for adjudicating the cases consistent with the D.C.
Circuit's decision. Further, the UMWA emphasizes that the conditions
generally advanced to support the cited NLRB's policy of nonacquiescense
with Court precedents are not present in the instant proceedings. The
UMWA maintains that the Commission's decision in Secretary of Labor v.
Magma Copper Co., 1 FMSHRC 1948, aff'd, 645 F.2d 694 (oth Cir. 1981), cert.
denied, 454 U.S. 940 (1981), illustrates the Commission's view that the
active participation of miners in the enforcement of the Act will lead
to improved health and safety in the mines.
The UMWA maintains that the Commission's decision in Helen Mining
restricted walkaround pay, not because the majority felt, on the basis of
its expertise, that the purposes of the Act would best be served by
compensating miners only during the quarterly inspections of the entire
mine. The majority reached that result only because of their determination
concerning how much weight should be given to Congressman Perkins' remarks
in determining Congressional intent. The D.C. Circuit has determined
that the Commission majority erred by concluding that the Congressman's
remarks were "dispositive" of the question of legislative intent. particularly
since those remarks conflicted with the statutory language. It .is obvious,

1 ...., '.l

>

..!.; • \.){:...,

argues the UMWA, that the Circuit opinion does not articulate a rule of
law which, ·in the Commission's view, undermines the purposes and policies
of the Act. As such, it would not appear to present a situation where
the Commission, relying on its expertise, would determine it must adhere
to a particular interpretation, in the face of contrary court rulings,
until it is overruled by the Supreme Court.
The UMWA argues that regardless of which "activity code" the inspector
chose, his activities on March 23, 1982, were clearly enforcement related
and were the type of actions contemplated in the Secretary's Interpretive
Bulletin as giving rise to Section 103(f) rights. Further, the ill1WA
maintains that it was entirely appropriate for MSHA to determine that,
for purposes of Section 103(f) the enforcement activity conducted at the
mine on March 23 was a type of spot inspection, even though, for purposes
of MSHA's computer activity code, the action was listed under "CEA", which
is designated a "Safety and Health Roof Control Technical Investigation".
Regardless of what "activity code" the inspector's actions came under,
the UMWA maintains that they clearly fell within the type of activity
described in the Interpretive Bulletin as givin rise to Section 103(f)
participation rights.
The U:MWA concludes that given the fact that Congress considered an
important purpose of the walkaround right to be the improvement of the
miners' knowledge of health and safety standards, and given the fact
that Congress saw a particular need for the improvement of such knowledge
in the area of roof control, it would be completely contrary to Congressional
int~nt to interpret Section 103(f) in a manner that precluded miner
participation in MSHA's roof control investigations. The UMWA points
out that unlike most other mandatory safety standards, the roof control
requirements are contained in individual plans, tailored to the specific
conditions of each mine, and they are subject to review by MSHA District
Managers every 6 months. The District Manage~s are required to consider
any instances of inadequate support and may require improvements in the
plan if they deem it necessary (30 C.F.R. § 75.200). Allowing miners to
actively participate in "roof control technical investigations," such as
the one that occurred at the No. 1 Mine, will assist MSHA in carrying out
its obligations to review the plans. If miners are traveling with MSHA
inspectors when they monitor compliance with the plan, the inspectors will
be more likely to be made aware of any occasion when the plan has proved
inadequate and will be able to obtain suggestions from the miners as to
necessary improvements. The fact that roof control plans are subject
to continual revision makes it all the more necessary that miners participate
in "roof control technical investigations," so they can be kept abreast of
the changes and improvements.
Findings and Conclusions
Section 103(a) of the Act directs the Secretary to make "frequent
inspections and investigations" for the purpose of--

(1) obtaining, utilizing, and disseminating
information relating to health and safety conditions,
the causes of accidents, and the causes of diseases
and physical impairments originating in such mines,
(2) gathering information with respect to mandatory
health or safety standards,
(3) determining whether an imminent danger exists,
and
(4) determining whether there is compliance with the
mandatory health or safety standards or with any
citation, order, or decision issued under this title
or other requirements of this Act.
Section 103(f) mandates that a miners~ representative be given an
opportunity to accompany an inspector during his physical inspection of
the mine for the purpose of aiding him in his inspection, and it seems
clear to me that the representative is entitled to be compensated during
the time spent on the inspection. In the instant case, the question presented
is whether or not such compensation is limited to the four annual regular
inspections authorized by Section 103(a), and whether or not the roof control
technical investigation conducted by Inspector Gibson on March 23, 1982, was
in fact a "spot inspection". If one can conclude that the investigation
in question was a spot inspection, the question next presented is whether
the miners' representative was entitled to be compensated.
The Commission has previously considered the walkaround provisions
found in Section 103(f) of the Act in five consolidated cases which resulted
from certain MSHA spot inspections for excessive levels of methane gas
and electrical hazards; Helen Mining Company, FJ:.1SHRC 2193 (1979);
Kentland-Elkhorn Coal Corporation, 1 FMSHRC 2230 (1979), and Allied Chemical
Corporation, 1 FMSHRC 2232 (1979). In each of those cases, the Commission
held that while miners had a right to participate in all mine inspections,
mine operators were required to pay them only for their participation in
the regular mandatory inspections mandated by Section 103(a) of the Act,
and not for "spot" inspections authorized by other sections of the law.
On appeal to the United States Court of Appeals for the District of Columbia
Circuit, the Court, in a split decision issued on February 23, 1982,
reversed the Commission and held that miners were entitled to walkaround
pay for "spot" inspections, as well as for regularly scheduled inspections,
UMWA v. Federal Mine Safety and Health Review Commission, 671 F.2d 615
(D.C. Cir. 1982), cert. denied, 74 L. Ed. 2d 189, October 12, 1982.
In its supporting brief, Monterey argues that the Court of Appeals
decision in U1'fWA f. FMSHRC, supra, was erroneous and that it is not
binding on the Commission or its Judges. In a recent decision issued by
Judge Kennedy in MSHA v. Southern Ohio Coal Company, LAKE 80-142, 5 FMSHRC

1 ')3 '1
t-v

l.

479, March 14, 1983, he rejected an identical argument, and held that
the Commission's direction to him was to dispose of the case in a manner
"consistent with the court's order", 4 FMSHRC 856 (1982). '!:..._/ The Commission's
remand order to Judge Kennedy specifically makes reference to UMWA v. FMSHRC,
and similar orders were issued in a number of cases decided before UMWA v.
FMSHRC (See Orders reported at 4 FMSHRC pgs. 854 through 881). In each
instance, the Commission's remand orders directed the Judges to adjudicate
them in a manner consistent with the decision in ill£vA v. FMSHRC. Thus, I
am in agreement with the UMWA's arguments in this case that the Commission
has not been inclined to deviate from the D.C. Circuit Court of Appeal's
ruling in UMWA v. FMSHRC, supra.
Upon review of Judge Kennedy's decision on remand in Southern Ohio
Coal Company, I agree with his holding that he is bound by the Court's
decision in UMWA v. FMSHRC, that he should not consider de nova the
question of law decided in that case, and I incorporate herein by reference
his rationale in support of that holding as grounds for my rejection of the
respondent's identical argument in this case. I conclude that I am bound
by the Court's decision, and that spot inspections are compensable under
Section 103(f).
Exhibit "A" to the stipulations is a June 30, 1979, itemized computer
"Activity Codes" listing
defining each of the various types of inspections
and investigations conducted by MSHA. Category "A" is styled Mandatory
Inspection and Investigations, and included among the twenty (20) kinds of
inspections in this category are the AAA and AAB regular and saturation
inspections of the entire mine, eight different types of "spot inspections",
a "reopening inspection" covering mines formerly abandoned or inactive, a
"toxic substance or harmful physical agent inspection", two "technical
inspections" dealing with section 101 petitions, four different kinds of
"accident investigations", one "special investigation" dealing with willful
violations, and one investigation dealing with discrimination comnlaints.
Category "B" is styled Policy Inspections and Investigations, and
included in this category are eleven (11) different kinds of "technical
and special investigations and inspections."
Category "C" is styled Auxiliary Inspections and Investigations, and
included in this category are nineteen (19) different kinds of ''technical
and special investigations and inspections."
Since the avowed purpose of the codes is to track the inspector's
time for fiscal and budget purposes, logic dictates that each code is
for a particular and specific type of activity, whether it be styled
"investigation" or "inspection". Although it is true that the computerized
coding system facilitates the tracking of inspector work hours, those
inspector activities connected with .MSHA's actual on-site enforcement
The Commission denied review of Judge Kennedy's remand decision in
April 1983.
"!:.._/

functions are clearly distinguishable from administrative and personnel
activities such as inspector leave, training, attendance at meetings, and
seminars, which are listed in code categories E, F, and G.
Both MSHA and the UMWA argue that a liberal construction of the
provisions of the Act require that miners' representatives be compensated
by the mine operator for the time spent on the roof control investigation
in question. If one were to accept the arguments advanced by MSHA and
the Ul1WA, then it would logically follow that a miners' representative
would be entitled to compensation each time he leaves his regular job
in the mine to accompany an MSHA inspector on any of the fifty (50)
inspections-investigations covered by MSHA's regulations. While it is
not clear that Congress ever intended such a result, MSHA's Interpretive
Bulletin distinguishes between pure enforcement inspection activities
and those of a purely technical nature unrelated to enforcement. See
Interpretive Bulletin, 43 Fed. Reg. 17547, which states as follows:
Section 103(f) does not necessarily apply to every
situation in which a representative of the Secretary
is at a mine. Rather, section 103(f) contemplates
activities where the inspector is present for purposes
of physically observing or monitoring safety and health
conditions as part of a direct enforcement activity.
This is indicated by the text of section 103(f) itself,
which refers to "physical inspection" where the presence
of miners' representatives will "aid" the inspection.
The Bulletin goes on to explain the types of activities which do not
give rise to miners' representative participation and compensation, and
included in the explanation of the matters excluded from such participation
and compensation is the following, at pg. 17548:
In these types of activities, while there may sometimes
be a need to physically observe or monitor certain
conditions or practices, this aspect of the overall
primary activity is incidental to other purposes.
Although enforcement action could result from certain
of these activities, the relationship of the
activities to·enforcement of safety and health requirements is indirect, or the activity is being carried
out in accordance other duties under the Act. The
continuing presence of a representative of miners
in all phases of these activities would not necessarily
aid the activity.
The parties have stipulated that the type of inspection conducted
by Inspector Gibson on March 23, 1982 is known as a "CEA-Roof Control
Technical Investigation", which is defined by MSHA as follows in Exhibit "A",
pg. A3-6:

1 •') q

·"

~; .. ub

Safety and Health Roof Control Technical Investigation
of a mine in~luding engineering and indepth studies of
roof problems or potential roof problems, roof control
surveys, and pull tests.
The parties also stipulated that Inspector Gibson's activities
on March 23, 1982, constituted an enforcement procedure consisting of
a one-day investigation to determine whether the respondent was complying
with the particular mandatory roof support safety standards found at 30
CFR 75.200 through 75.205, as well as all standards in general. Although
the parties agreed that Inspector Gibson's primary responsibility was
to observe the roof bolting activities, to measure room, entry, crosscut
widths, roof bolt spacing, and to sould the roof and ribs, all for the
purpose of determining respondent's compliance with the applicable mine
roof control plan, they further agreed that during this enforcement
procedure Inspector Gibson may and does cite any observable violations
of any mandatory standards. As a matter of fact, during the investigation
in question, Inspector Gibson issued a citation for a violation of the
roof control plan, and a copy is attached as Exhibit "B" to the stipulations.
The citation was issued pursuant to section 104(a) of the Act, and it
charges a violation of mandatory standard section 75.200, because one
of the mined intersections of a track entry had a diagonal measurement
of 43 feet, which was in excess of the 38-foot requirement stated in the
roof control plan. Inspector Gibson terminated the citation within an
hour of its issuance after abatement was achieved by the installation of
additional roof posts to narrow the cited diagonal to the required width.
The crux of Monterey's arguments that the roof control technical
investigation conducted by Inspector Gibson in this case was not compensable
under Section 103(f), is the assertion that the terms "inspections" and
"investigations" have different meanings and are never used interchangeably
in the Act. Monterey maintains that the fact that Congress included both
terms within the coverage of Section 103(a), but used only the term
"inspection" in Section 103(f), indicates that Congress clearly intended
that compensation only be paid for inspections and not for investigations.
In my view, the fact that a technical investigation may focus on ~-. ------<.\
one hazard, and may only involve an inspector's review of narrow and
\
,\
technical procedures,is really not that important in distinguishing this
\
activity from an inspection. A spot inspection often focuses on one
hazard, and often involves narrow technical matters dealing with ventilation,
electrical matters, etc., and I fail to see the distinction in the two
Ji
procedures. I have difficulty understanding any real distinction between
a spot inspection and an investigation or inspection to determine whether
a mine operator is in compliance with his required roof control plan.
Simply because MSHA chooses to place different computer code lables on
the two activities does not ipso facto change or alter the inspector's
authority or the manner in which he goes about his inspection in any given
case. I believe that an examination of the prevailing facts, on a case-by-case
basis, should permit one to distinguish precisely what the inspector is

1 ') ') .,
u I

...L 1-

actually doing at any given time. As a practical matter, once this is
done, labeling the activity an "inspection", as opposed to an Investigation", for the purpose of deciding whether it fits the category of "spot"
inspection for walkaround compensation purposes in line with the D.C.
Circuit's holding should be a relatively simple matter.
On the facts of this case, and after careful consideration of all
of the arguments presented by the parties in support of their respective
positions, I conclude that the position taken by MSHA and the UMWA is
correct, and I reject the arguments advanced by Monterey. I conclude
and find that Inspector Gibson's enforcement ac,tivities at the mine on
March 23, 1982, constituted a spot inspection, and that the walkaround
representative was entitled to be compensated for the time spent accompanying
the inspector. Under the circumstances, Monterey's initial refusal to
pay the representative constitutes a violation of section 103(f) of
the Act, and Citation No. 1004993, issued on April 28, 1982, IS AFFIRMED.
Negligence
The parties have advanced no arguments concerning negligence.
However, it seems obvious to me that Monterey's refusal to pay the walkaround representative was based on a legal interpretation of the scope and
application of section 103(f), and its obvious intent was to test the
law. Taken in this context, I do not believe that the facts here presented
lend themselves to an appropriate negligence finding.
Size of Business and Effect of Civil Penalty on Monterey's Ability to
Remain in Business.
The parties have stipulated that Monterey is a large mine operator
and that the proposed civil penalty will not adversely affect its ability
to remain in business. I adopt these stipulations as my findings and
conclusions.
History of Prior Violations
The parties have stipulated to the history of prior violations for
the two years preceding the issuance of the citation in question in this
case (computer print-out, Exhibit G). I take note of the fact that
Monterey has paid civil penalty assessments for all but two of 362 citations
issued during this time period, and for an operation of its size, and
on the facts of this case, I cannot conclude that the record warrants
an increase in the penalty assessed in this case.
Gravity
The parties have advanced no arguments concerning the gravity of
the violation, and I conclude that it was nonserious.

Good Faith Abatement
The parties have stipulated that Monterey paid walkaround representative
Frank H. Barrett, Jr., on April 30, 1982, and payment was made within
the time fixed for abatement. Accordingly, I conclude that Monterey
demonstrated good faith compliance once the citation issued.
Penalty Assessment and Order
MSHA's initial proposed civil penalty assessment of $20 for the violation in question seems reasonable in the circumstances and I accept it.
Monterey IS ORDERED to pay the $20 civil penalty assessment within thirty
(30) days of the date of this decision.
In view of the disposition of the civil penalty proceeding, Monterey's
contest (LAKE 82-82-R) IS DENIED and DISMISSED.

Administrative Law Judge
Distribution:
Edward H. Fitch, Esq., U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Carla K. Ryhal, Esq., P.O. Box·Zl80, 1305 Dresser Tower, Houston, TX 77001
(Certified Mail)
Mary Lu Jordan, Joyce A. Hanula, Esqs., UMWA, 900 15th St., NW, Washington,
DC 20005 (Certified Mail)

/slk

1"'Ji.}

...L.~J•.

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

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

JUL

8 1983

CIVIL PENALTY PROCEEDING
Docket No. CENT 79-203
A. C. No. 41-00356-03008

v.

Mine:

Sandow Strip

INDUSTRIAL GENERATING COMPANY,
Respondent
DECISION
Appearances:

Donald W. Hill, Esq., Office of the Solicitor
U.S. Department of Labor, Dallas, Texas,
for Petitioner;
Mike Holloway, Esq., Dallas, Texas,
for Respondent.

Before:

Judge Morris

The petitioner, the Secretary of Labor, charges respondent with
violating Title 30, Code of Federal Regulations§ 77.701, a safety regulation
promulgated under the Federal Mine Safety and Health Act, 30 U.S.C. § 801 et
seq. The cited regulation provides as follows:
Metallic frames, casings, and other enclosures of electric
equipment that can become "alive" through failure of insulation
or by contact with energized parts shall be grounded by methods
approved by an authorized representative of the Secretary.
After notice to the parties a hearing was held in Dallas, Texas on
October 26, 1982.
Procedural History
This matter was originally scheduled for hearing on August 21, 1980
before Judge Jon D. Boltz. A continuance was granted and the case was reset for December 4, 1981. That hearing date was vacated and this case was
transferred to the writer on February 5, 1982.

1 "' . (}

..1... -

1 .

At a hearing that connnenced on October 26, 1982, in Dallas, Texas the
Secretary's inspector was unavailable because of a recent injury. The judge
denied the Secretary's motion for a continuance. Respondent requested a
hearing on the merits.
After considerable discussion on the record the parties stipulated to
certain facts. The judge prepared the formal stipulation and submitted it
to the parties for comments. No person objected to the facts as prepared by
the judge.
The parties waived post hearing briefs.
Issues
The issues are whether respondent violated the above regulation and, if
so, what penalties are appropriate?
Stipulated Facts
Inside its maintenance building, or shop, respondent maintains three
overhead cranes. The cranes have a capacity of 5, 10, and 20 tons (Tr. 10,
14, 16; Exhibit Rl-R4). They rest and move on railroad rails 30 feet above
the concrete floor. The cranes, with attached cables, move heavy equipment
such as bulldozers and scrapers (Tr. 10, 15).
The area in front of the maintenance building is paved and the area to
the side of the building is paved with rock (Tr. 18). Lignite, moved by a
closed conveyor system, passes in front of the shop (Tr. 17).
There is no significant accumulation of dust particles in the building.
Any accumulation would be routine dust such as the dust particles in the air
in any room (Tr. 10, 17).
The cranes sit on rails which are attached to the sides of the building
which are grounded (Tr. 6).
The strip mining itself does not cause any significant amount of dust or
other substance to accumulate in the air at the maintenance shop (Tr. 10).
The crusher is two miles away and the strip mining is three miles away (Tr.
10, 17). No spray painting or anything of that nature is carried on in the
shop ( Tr • 1 6 ) •
The MSHA inspector did not go up and look at the wheels and the rails
(Tr. 19).
The citation was issued because of some past experience with crane
systems supposedly similar to this system (Tr. 20).
The Secretary acknowledges that respondent's expert witnesses, present
for the hearing, are very knowledgeable (Tr. 19).

Expert Pittman [who was to have been a witness for respondent] has been
with the Alco Company for 34 years. The company has over 1,000 cranes
worldwide. Respondent's cranes, manufactured by HARNISCHFEGER CORPORATION,
have steel wheels and steel rails that are as shiny as a mirror (Tr. 21, 22).
The shiny portion is polished raw steel. In 34 years expert Pittman had
never experienced a failure of a ground because of a dust condition between
the wheels and the rails. Respondent's expert in his research contacted many
operators. They all indicated there was no need for an additional ground
(Tr. 23).
The National Electrical Code, 1978 Edition, Section 610-61 entitled
"Grounding" provides as follows:
All exposed metal parts of cranes, monorail hoists, hoists and
accessories, including pendant controls, shall be metallically
joined together into a continuous electrical conductor so that
the entire crane or hoist will be grounded in accordance with
Article 250. Moving parts, other than removable accessories or
attachments having metal-to-metal bearing surfaces, shall be considered to be electrically connected to each other through the
bearing surfaces for grounding purposes. The trolley frame and
bridge frame shall be considered as electrically grounded through
the bridge and trolley wheels and its respective tracks unless
local conditions, such as paint or other insulating material
prevent reliable metal-to-metal contact. In this case a separate
bonding conductor shall be provided. (Transcript at 28).
Discussion
Respondent asserts it did not violate 30 C.F.R. § 77.701 since there is
no possibility that the equipment could become "alive" because of a failure
of insulation or through contact with energized parts.
I agree with this view since the metal wheels of the cranes roll on
metal rails; accordingly, the equipment is grounded by virtue of the
continuous metal to metal contact between the two surfaces.
This method of metal to metal grounding is recognized under the National
Electrical Code (NEC) § 610-61. In its pertinent part it provides as
follows:
All exposed metal parts of cranes •.. shall be metallically
joined together into a continuous electrical conductor so that
the entire crane ..• will be grounded in accordance with Article
250 ••.• The trolley frame and bridge frame shall be considered
as electrically grounded through the bridge and trolley wheels •••.
(emphasis added).

1 n A .· J_.~ 1~

The gist of the Secretary's case appears to be that metal to metal
grounding is inadequate and that an additional grounding mechanism is
necessary to insure proper safety. He suggests that dust particles or other
insulating materials could collect on the wheels or rails and thereby
eliminate the metal to metal ground.
This occurence would allow the crane
to become "alive."
I find the Secretary's argument unpersuasive for several reasons.
The cranes are all housed inside a building. They are 30 feet above a
concrete floor and they are located approximately three miles from the mining
area. The amount of dust particles accumulating in the building is minimal
and insignificant. The citation issued at the inspection is void of any
notation concerning any dust accumulation. Further, the inspector did not
examine the wheels and rails for any such accumulation.
In addition, respondent's expert, (whom the Secretary recognizes as very
knowledgeable), indicated that the ground of the metal to metal contact would
not be lost due to the amount of dust that could accumulate here (Tr. 14, 17,
21). Further, in his 34 years in the field, respondent's expert had never
seen a ground loss occur under the conditions urged by the inspector.
Respondent's expert, in researching other operators, universally found no
need for an additional ground.
Due to the considerable expertise of respondent's experts I find such
evidence to be very credible.
The Secretary appears to advance an argument that the grounding method
used by respondent is inadequate because accidents, or loss of grounding, had
occurred where such cranes were not equipped with a supplemental grounding
mechanism. No documentation or evidence was produced showing loss of ground
in these or similar circumstances. On the other hand respondent's expert
testimony, reviewed above, was directly to the contrary indicating no history
of such accidents. I therefore conclude that there is no history of
accidents in similar circumstances to suggest that the electrical equipment
cit~d here could become alive.
Section 610-61 of the NEC does indicate that a separate ground would be
necessary if, "[l]ocal conditions, such as paint or other insulating mat.erial
prevent reliable metal-to-metal contact." However, the parties have stipulated that no significant accumulation of dust occurs in the area of the
cranes. The record shows that there is no painting in the building which
houses the cranes and that the building is used exclusively for maintenance
purposes. No mining activity takes place (Tr. 16). There was also testimony
by respondent's expert that there were no insulating materials on the wheels
or rails (Tr. 23).
I conclude that there is no realistic possibility that the cranes
operated by respondent could become alive by reason of failure of insulation
or contact with energized parts. No violation of 30 C.F.R. § 77.701
occurred.

It further follows that respondent is not required to maintain
additional grounding that it installed to abate the citation issued in this
case.
Based upon the foregoing findings of fact and conclusions of law I enter
the following
ORDER
Citations No. 792310 and 792311 and all proposed penalties therefor are
vacated.

Distribution:
Donald W. Hill, Esq. (Certified Mail)
Office of the Solicitor
United States Department of Labor
555 Griffin Square, Suite 501
Dallas, Texas 75202
Mike Holloway, Esq. (Certified Mail)
1511 Fidelity Union Life Building
Dallas, Texas 75201

/blc
1 .·' ~ ..,
....L. - i 'k

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

22041

(703) 756-6210/11/12
July 11, 1983
Complaint of Discrimination

JAMES ELDRIDGE,
Complainant

Docket No. KENT 82-41-D
v.
SUNFIRE COAL COMPANY,
Respondent
ORDER AWARDING BACKPAY AND LEGAL FEES
In response to my Order of April 5, 1983, the parties filed their
claims and supporting arguments with respect to the compensation due
the complainant in this case. Respondent's "calculations of lost wages",
filed with me on April 27, 1983, covers the period from August 6, 1981,
the date of the complainant's discharge, through and including September 9, 1982,
the date on which the respondent claims it ceased operations and terminated
its work force, and the date that the complainant would have been finally
terminated had he continued in respondent's employment. Respondent's
calculations for the total gross wages, without deductions for withholdings,
state and local taxes, which the complainant would have earned had he
continued in respondent's employment is $18,634.60, and those calculations
were arrived at by an affidavit executed by respondent's personnel director.
Included in those calculations is the sum of $17,879.40 in gross wages,
plus accrued vacation time in the amount of $755.20, for a total of $18,634.60.
The wage calculations include a weekly summary for each company payroll
period in 1981 and 1982, the hours worked, the hourly wage, and periods
of lay-offs. The calculations for 1981 are based on the payroll periods
ending August 15, 1981 through December 25, 1981, and for the year 1982,
they are computed for the payroll period ending January 4, 1982, through
September 10, 1982, when the respondent asserts the mine was closed and
all employees were terminated.
In addition to its calculation of the complainant's gross wages,
respondent asserts that the complainant earned gross wages in the amount
of $255.20 as an employee of Linefork Coal Corporation, and the sum of
$3,005 as an employee of P.M. Coal Company, and in support of this
assertion included copies of the complainant's withholding statements
for these employments subsequent to his discharge.
Respondent asserted that subsequent to his discharge, the complainant
had received unemployment insurance benefits in the amount of $3,444; $560
from an extended benefits claim; and $2,240 for federal supplemental
compensation, the sum of which totals $6,244. Respondent maintained that
it is entitled to deduct this amount from complainant's gross wages, and
based on its submitted calculations, stated that the total gross wages
which complainant should receive subsequent to his discharge of August 6, 1981,
is $9,130.40, based on the following:
n

l .-.:..

'

1,.-~)

$18,634.60.
- 3,260.20.
$15,374.40
- 6,244.00.
$ 9'130. 40. •

• Wages complainant would have earned had he
not been discharged.
Less wages earned subsequent to discharge.
Less unemployment benefits and compensation.
Total respondent claims is due.

With regard to any award of costs and attorneys fees, respondent
argued that the complainant in this case was represented by the Appalachian
Research & Defense Fund of Kentucky, Inc., an organization which respondent
believes is federally funded. Although recognizing the fact that an
attorney would ordinarily be entitled to be compensated for services
performed in representing the complainant in this matter, respondent
apparently takes the position that since the legal services organization
which pursued his claim is federally funded, by its mandate, it should not
have accepted this case. By doing so, respondent infers that the organization
which represented the complainant provided free legal service, and the
complainant incurred no legal expenses in pursuing his claim. Accordingly,
respondent concluded that no amount should be awarded as attorney's fees
for complainant's legal representation in this case.
In its response to my Order of April 5, 1983, complainant's counsel
took issue with the following items submitted by the respondent in its
calculation of lost wages, and requested an opportunity for additional
discovery:
--lack of documentation for the assertion that complainant would have worked less than 40 hours during
several weeks of the back-pay period.
--lack of documentation to support the assertion that the
complainant would have been laid off during a three
month period from October-December 1982.
--failure by the respondent to address the question of
reinstatement, particularly in view of information
-received- by the complainant that any sale of Sunfire
Coal Company includes a clause providing for reinstatement by the purchaser of laid-off miners.
Complainant's calculations of the backpay and costs due are stated
in a copy of a letter dated March 24, 1983, to respondent's counsel, and they
are as follows:
Wages through September 10, 1982
Minus wages earned
Back owed
Interest
Backpay + interest
Mileage
TOTAL

$25,804
- 3,260
$22,544
x
.12
$ 2,705
$25,249
92
$25,341

+

1 n

J..,;.,•

1b·-

Complainant's calculations of attorneys' fees and costs are reflected
in itemized exhibits which show the dates the work and expenses were
performed and incurred, the type of work or expense, and the number of
hours devoted to each task. In summary, these fees and costs, for legal
services through October 21, 1982, are as follows:
Tony Oppegard: 284.3 hours at $70/hr.
Stephen A. Sanders: 34.5 hours at $50/hr.
attorneys' fees
mileage
phone
other expenses
(depositions, transcript, witness fees,
etc.)
TOTAL

$19,901
1,625
$21,526
+ 289
+
53
+
304

$22,172

In response to the respondent's assertion that unemployment compensation benefits should be deducted from any back-pay due the complainant,
complainant's counsel asserted that such benefits should not be considered
interim earnings, and thus should not be deducted from any backpay award,
and in support of this argument he cites 3 NLRB Casehandling Manual § 10604.1,
Bradley v. Belva Coal Co., 3 FMSHRC 921 (1981); Neal v. Boich, 3 FMSHRC 443
(1981); Wilson & Rummel v. Laurel Shaft Const. C~2 FMSHRC 2623 (1980);
NLRB v. Pan Scape Corp., 607 F.2d 198 (7th Cir. 1979); Marshall v. Goodyear
Tire & Rubber Co., 554 F.2d 730 (5th Cir. 1977).
In response to the respondent's argument that the complainant has
incurred no legal expenses in pursuing his claim because of legal representation furnished him by the Appalachian Research & Defense Fund of Kentucky,
Inc., a legal services organization, complainant's counsel states that
this argument is wholly without merit and that similar challenges have
been rejected not only by a Commission Judge, Bradley v. Belva Coal, 3 FMSHRC
921, 924 (1981), but by the eight U.S. Circuit Courts of Appeals that
have considered the issue. Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979);
Weisenberger v. Huecker, 593 F.2d 49 (6th Cir. 1979); Mid-Hudson Legal Services
v. G & U, Inc., 578 F.2d 34 (2nd Cir. 1978); Perez v. Rodriguez Bou, 575
F.2d 21 (1st Cir. 1978); Rodriguez v. Taylor, 569 F.2d 1231 (3rd Cir. 1977);
Bond v. Stanton, 555 F.2d 172 (7th Cir. 1977), cert. denied, 438 U.S. 916
(1978); Sellers v. Wallman, 510 F.2d 119 (5th Cir. 1975); Brandenburger v.
Thompson, 494 F.2d 885 (9th Cir. 1974).
Complainant's counsel points out that respondent has cited no authority
to support its argument that the Appalachian Research & Defense Fund of
Kentucky, Inc., should not have accepted this case because of its Congressional
"mandate". Counsel states further that Federal Courts have uniformly held
that challenges to the propriety of Legal Services programs representing
clients in particular access are improper in a lawsuit because eligibility
for federally-funded legal services is a question of internal program
administration, to be resolved according to administrative procedures. Harris
v. Tower Loan of Mississippi, 609 F.2d 120 (5th Cir. 1980); Martens v. Hall,
444 F.Supp 34 (S.D. Fla. 1977); Jacobs v. Board of School Comm'rs, 349 F.Supp.
605 (S.D. Ind. 1972), aff'd, 490 F.2d 601 (7th Cir. 1973), dismissed as moot
on other grounds, 420 U.S. 128 (1975).

1~·11

After receipt of the responses to my April 5, 1983 o~der, I issued another
order on May 3, 1983, granting the complainant's motion for further
discovery, and I also ordered production of certain personnel and payroll records in the custody of the respondent for the complainant's
review. Subsequently, complainant's counsel filed a motion for a subpoena
duces tecum requesting certain payroll records for the years 1980-1983,
a second set of interrogatories, and a motion for a hearing date. Respondent
has filed oppositions to these motions and states that the company has
ceased mining operations and no longer has any regular employees with
knowledge of the further information requested by the complainant.
The respondent has answered complainant's first set of post-hearing
interrogatories and has also made available certain company payroll and
personnel documents requested by complainant's attorney for their joint
review. Complainant's counsel states that he has reviewed the information
provided, but has advanced no valid argument justifying any subpoena duces
tecum for these records. Accordingly, the motion for a subpoena IS DENIED.
Although I did indicate in one of my previous orders that I would
consider scheduling a hearing if the parties could not agree on the
compensation due to the complainant, I have reconsidered the matter and
have now decided that any further hearing in this case is not warranted.
Accordingly, complainant's motion for a hearing date IS DENIED.
With regard to the complainant's motion for additional discovery, I
believe that there is enough information of record to enable me to rule on
the compensation question without the need of further discovery. It seems
obvious to me that counsel for both sides are at odds with each other over
the claimed compensation, and any further discovery will be nonproductive.
Accordingly, complainant's motion for further discovery IS DENIED.
Attorneys Fees and Costs
Respondent's objections to the awarding of any attorney fees and other
costs of litigation is limited to a legal argument that Counsel Opuegard's
employer is a quasi-public corporation funded in part by Federal funds.
Counsel Roark has filed no objection to the reasonableness of the claimed
attorney fees and costs, and Counsel Oppegard has filed a detailed itemized
statement of expenses and costs.
After careful review and consideration of the arguments and documentation
filed by the parties, I conclude and find that respondent's arguments
concerning the eligibility of the Appalachian Research & Defense Fund of
Kentucky, Inc., to be compensated for its services in this case are without
merit and they are rejected. I conclude and find that Mr. Oppegard's
employing agency is entitled to be compensated for the services performed
on behalf of Mr. Eldridge in pursuing his claim in this case. I also conclude
and find that the claimed legal fees and costs itemized by Mr. Oppegard,
including the $92 in mileage costs incurred by Mr. Eldridge, appear to
be reasonable and they are APPROVED.

Complainant's unemployment compensation benefits
Respondent's arguments that any unemployment payment·s made to
Mr. Eldridge should be deducted from any award of backpay are REJECTED.
I accept the arguments advanced by complainant in support of the proposition
that such payments should not be deducted. If such payments to Mr. Eldridge
are illegal under state or local laws, I leave it to those jurisdictions
to pursue their claims against Mr. Eldridge.
Complainant's backpay
The only thing that the parties agree on is that the sum of $3260,
representing wages earned by Mr. Eldridge during the time he was discharged,
should be deducted from any base backpay figure. Although the record
contains a letter of June 17, 1983, indicating that Mr. Eldridge is willing
to compromise with the respondent by accepting a base backpay figure of
$25,804, less interest, in exchange for Mr. Eldridge's foregoing his
additional claims for overtime, vacation time, and a bonus, the parties
obviously cannot compromise or otherwise settle the matter of compensation.
The initial submission on behalf of Mr. Eldridge concerning his claimed
backpay is in the form of a letter from Counsel Oppegard to Counsel Roark,
stating that his earnings through September 10, 1982, were $25,804. Although
Counsel Oppegard submitted a detailed itemized breakdown of hours worked
in support of his claimed attorney fees, the claimed backpay is simply
stated as a lump sum figure with no supporting documentation or itemization.
On the other hand, respondent's submissions concerning Mr. Eldridge's
back wages are supported by an itemized breakdown, by payroll period, with
supporting affidavits.
With regard to the respondent's calculations of lost wages, Mr. Eldridge's
counsel takes issue with the assertion by the respondent that Mr. Eldridge
would only have worked 36 hours during the pay period ending 3/20/82 and 32
hours during the pay period ending 6/11/82. Counsel Oppegard states that
the respondent's payroll records reflect that 74 mine employees worked
a full 40 hour week during the first disputed payroll period, and that 86
mine employees worked a full 40 hour week during the second disputed period.
He therefore concludes that Mr. Eldridge would more than likely have worked
full 40 hour weeks during these periods which are in dispute. After review
and consideration of the information furnished by the parties concerning
these disputed pay periods, I conclude that Mr. Eldridge should be compensated
for the full 40 hour weeks in question, rather than the 32 hour and 36 hour
weeks as stated by the respondent.
It seems clear to me that the backpay period in this case begins
on August 6, 1981, the date of Mr. Eldridge's discharge, and ends on
September 9, 198;, the date that the mine closed and mine operations ceased.
Counsel Oppegard s lump sum backpay claim of $25,804, up to and including
Sep~ember 10, 1982, obviously does not take into account the 1981 lavoff
periods shown in respondent's detailed statement of wages earned tw~ davs
on July 2 and 9, 1982, where respondent claims Mr. Eldridge was ~ot due ·
any vacation pay, and some possible overtime which may have been earned
by Mr. Eldridge but omitted in the respondent's calculations.

The affidavits and other information filed by the respondent
indicates that the Sunfire Coal Company has ceased all mining operations
and no longer has any regular employees. Given these circumstances, I
believe that any further efforts attempting to document such matters as
speculative and estimated overtime hours, layoffs which took place over
a year or so ago, etc., etc., would be a fruitless exercise, and would
only result in additional delays in bringing this matter to finality,
plus additional legal costs, none of which are to Mr. Eldridge's benefit.
Accordingly, in order to bring this matter to finality, I will decide the
backpay compensation due Mr. Eldridge on the basis of the information
of record, and in particular, the detailed compensation calculations
submitted by the respondent, as supported by a sworn affidavit of its
personnel director. On the basis of that information, which I find
credible, I award backpay and other compensation as follows:
Total 1981 Gross Wages . •
$ 3,616.00
$ 14,263.40
Total 1982 Gross Wages . .
12 additional work hours for
payroll periods ending 3/20
141. 60
and 6/11/82 at $11.80 hrly. rate . . . $
$ 18,021.00
755.20
$
$ 18,776.20
.-$ 3,260.00
$ 15,516.20
$ 1,861.95
$ 17,378.15

Accrued Vacation Days (8)
Minus wages earned.
Interest at 12%

. .

Mileage expenses incurred by
Hr. Eldridge .
. .

.

. . . . $

92.00
$ 17,470.15 TOTAL

ORDER
Respondent shall pay to Mr. Eldridge the sum ~f $17,470.15, less any
amounts withheld pursuant to state and Federal law, and payment is to be
made within thirty (30) days of the date of this Order.
Respondent shall pay to the Appalachian Research & Defense Fund of
Kentucky, Inc., Hazard, Kentucky, the sum of $22,172, as attorneys fees
and legal costs, and payment is likewise to be made within thirty (30)
days of the date of this Order.

Administrative Law Judge
Distribution:
J. L. Roark, Esq., Craft, Barret & Haynes, P.O. Drawer 1017, Hazard, KY
41701 (Certified Mail)
Tony Oppegard, Esq., Appalachian Research & Defense Fund of Ky., Inc., Box
360, Hazard, KY 41701 (Certified Mail)

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

22041

'i983..
)
!

...:;:

DISCRIMINATION PROCEEDINGS

JIMMY SIZEMORE and
DAVID RIFE,
Complainants

Docket No. KENT 83-130-D

v.
DOLLAR BRANCH COAL COMPANY,
Respondent

MSHA Case Nos. CD 83-07
CD 83-10
No. 3 White Oak Mine

DECISION
Appearances:

Tony Oppegard, Esq., and Martha P. Owen, Esq.,
Hazard, Kentucky, for Complainants;
Thomas w. Miller, Miller, Griffin & Marks,
Lexington, Kentucky, for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
Complainants Jimmy Sizemore and David Rife contend they were
discharged from their employment by Respondent, on November 10,
1982, because of activity protected under the Federal Mine Safety
and HeaJ_J:.h Act of 1977, 30 u.s.c. § 801 et seq. ("the Act").
Pursuant to notice, the case was called for hearing on April 18,
1983, in Hazard, Kentucky. At the commencement of the hearing,
the parties stated that a settlement had been reached with respect
to the claim of David Rife, whereby Rife agreed to withdraw his
complai~t before the Commission, and to withdraw a complaint filed
with the National Labor Relations Board, and Respondent agreed to
reinstate Rife effective April 25, 1983, at the same rate of pay
he wasrearning when discharged. Based on the settlement agreement,
this proceeding will be dismissed insofar as it involves the complaint of David Rife.
Jimmy Sizemore, Roscoe Collett, Donnie Mosley, David Rife,
Ricky Napier, Cecil Harris, and Glenn Caldwell testified on behalf
of Complainant Sizemore; John Chaney, Ronnie Napier and Daryl
Napier testified on behalf of Respondent. Both parties have filed
posthearing briefs. Based on the entire record and considering
the contentions of the parties, I make the following decision.

1251

FINDINGS OF FACT
Complainant Sizemore was employed on the third shift at
Respondent's mine as a roof bolter. The third shift was a
maintenance shift. The hours of work for this shift were changed
in approximately October, 1982, from 11:00 p.m. - 7:00 a.m., to
2:00 a.m. - 10:00 a.m.
The third shift foreman was Ronnie Napier.
Employees on the shift were Jimmy Sizemore, David Rife, Delbert
Couch (also known as "Lightning"), and Ricky Napier. Donnie Mosley
also worked on the third shift as outside man, but his hours continued to be 11:00 p.m. to 7:00 a.m. All of the third shift miners
were unhappy about the change in hours of work.
The first shift
worked from 6:00 a.m. to 2:00 p.m. and the second shift from
4:00 p.m. to 2:00 a.m.
Thus, there was an overlap of 4 hours in
the working time of the third and first shifts. Sizemore complained
that he was required to install bolts in 4 hours in the cuts made
by the second shift and it was not possible to accomplish this in
the allotted time. When the third shift arrived, Sizemore discontinued bolting and did general cleanup work.
During the afternoon of November 8, 1982, Ronnie Napier,
Delbert Couch and David Rife were out drinking beer and playing
pool.
They were travelling in Ronnie Napier's jeep. Sometime in
the evening, Rife fell asleep in the back of the jeep. Napier and
Couch decided to stage a protest at the mine because of the change
in the hours of the shift.
They drove to the mine site, arriving
some time between 10:00 p.m. and midnight. Napier and Couch had
consumed approximately 10 bottles of beer each and Rife had drunk
six. Couch continued to drink after arriving at the mine. Napier
had a rifle in his possession and Couch had a pistol.
The second shift was underground mining coal when they
arrived. Napier called the second shift foreman, Terry Ward, from
the mine office and directed him to bring his crew out of the mine.
When they didn't respond quickly enough, he directed the second
shift outside man to cut off the power to the mine, which resulted
in shut-Qdng off the mine fan.
The second shift then came out of the
mine.
Couch called Glenn Caldwell, the mine superintendent, and
Ronnie Napier told him to come out to the mine.
Caldwell called the
police put they refused to come out to the mine, after being told on
calling the mine office that there was no trouble there. After
further telephone conversations between Caldwell and Ronnie Napier,
Caldwell agreed to come out to the mine at 5:00 a.m., believing that
this would allow time for Napier to sober up.
Napier, who was armed told the second shift crew that they
were going on strike because of the change in working hours, The
second shift crew remained outside the mine and were instructed to
remain on the mine property. Napier then gave his rifle to Terry
Ward who placed it in Napier's jeep. Couch kept his pistol. Both
Couch and Napier were intoxicated.

1 '' ~ .)
.l_ . ~ .. l.....J ··-

Complainant Sizemore arrived at the mine at approximately
1:45 a.m. prepared to begin work at 2:00 a.m. When he saw the
second shift outside, he went to the mine office.
Ronnie Napier
was there and was complaining about the change in hours and a
problem he was having with insurance.
Since the power had been
shut off, none of the third shift went into the mine.
Napier
told them no one could go to work until Caldwell came, and said
or implied that no one should go home either.
The third shift
workers therefore remained in or around the mine office. Between
2:00 a.m. and 5:00 a.m., Napier and Couch refused to permit the
loading of coal trucks which were at the mine waiting to be
loaded. Napier shot a hole in the door of the mine office and
both Napier and Couch shot at insulators on light poles or power
lines. A hole or holes had been kicked through the wall of the
mine office.
Beer cans were scattered over the parking lot.
Tires had apparently been cut.
Caldwell arrived at the mine about 5:00 a.m. and met with the
third shift miners all of whom had remained at the mine site.
Ronnie Napier and Delbert Couch did most of the talking, and voiced
complaints of the change in hours of the shift, an insurance problem
Napier had, and Couch's demand for a raise in pay. When he was
asked what his complaint was, Sizemore told Caldwell he would like
to see the hours changed back to the old schedule.
Sizemore had not been drinking or taking drugs.
He did not
carry a gun.
He was not involved in calling the second shift from
the mine or in shutting down the mine. He was ready and willing
to work his shift. He was not involved in cutting off the power
to the mine or in d~maging mine property.
FolJf.owing his meeting with the third shift miners, Caldwell
discussed the matter with John Chaney, the owner of the mine, and
Daryl Napier, the mine superintendent. Chaney was told, or at
least understood, that the entire third shift was involved in
drinkinj and property destruction. Based on that understanding,
he told Caldwell to fire all the miners on the third shift.
"I
told Glenn to fire everybody, that way we would for sure have the
right people."
(Tr. 136). Later Ricky Napier was rehired when
Chaney 1found out he did not participate in the drinking and
destruction of mine property.
ISSUE
Whether Complainant Sizemore was discharged for activity
protected under the Mine Safety Act.

1°~i

..1..hJU

CONCLUSIONS OF LAW
To establish a prima facie case of discrimination under the
Act, Complainant must show that he was engaged in activity protected by the Act and that his discharge was motivated in any part
by the protected activity. Secretary/Pasula v. Consolidation Coal
Company, 2 FMSHRC 2786 (1980), rev'd on other grounds sub nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3rd Cir.
1981); Secretary/Robinette v. United Castle Coal Co., 3 FMSHRC 803
(1981); Secretary/Bush v. Union Carbide Corporation, 5 FMSHRC
(1983).
-Comolainant contends that he was fired in part for failing to
work on November 9, 1982, and that his· failure ~o enter the mine
and work his shift was protected activity. He asserts that it was
protected activity because to enter the mine when the power (including the fan) was shut off and the preshift examination had not been
performed would be (1) dangerous and (2) in violation of sections
303(d) (1) and 303(t) of the Act.
It certainly is true that it would have been dangerous for
Complainant to enter the mine when his shift was scheduled to
begin on November 9. The danger, however, arose not so much from
the fact that the fan was shut off and the mine had not been
preshifted as from the fact that an intoxicated man with a gun
made it clear that no one should.enter the mine.
Complainant
recognizes that this is not a case of a refusal of a miner to
enter a dangerous area or perform dangerous work.
The mine was
shut down in part because of a labor dispute concerning hours of
employment, and in part because two employees, including a supervisor, vrere drunk.
It is stretching the notion of protected
activity under the Mine Act to hold that it includes not going to
work under these circumstances.
As~uming, however, that the "activity" was protected, was
Complainant's discharge motivated in any part by such activity?

It is true that Caldwell testified before the Kentucky
Unempldyment Commission that Sizemore was fired because he didn't
go to work or go home.
I think it distorts the real situation,
however, to conclude that Sizemore (or any of the third shift
miners) was fired for failing to enter an unsafe mine.
The reality
is that they were all fired because management believed that the
entire third shift was involved in shutting down the mine, drinking
on the mine site, and wantonly destroying mine property. So far as
the record before me shows, management was in error about Sizemore's
participation in any of these activities (as it was, and admitted
it was, in error concerning the participation of Ricky Napier).

Because his discharge was based on false information, it
seems grossly unfair. However, the Commission has no responsibility to assure fairness in employment relations or to determine
whether an employee was discharged for cause, but only to protect
miners exercising their rights under the Act. Complainant was
unfortunately caught by a collective - guilt dragnet and discharged
though, according to this record, he was entirely innocent of the
charges properly levelled at some of his fellow miners (including
his foreman).
·
I conclude that the discharge of Complainant Sizemore was not
motivated in any part by activity protected under the Act.
Therefore, no violation of section 105(c) has been established.
ORDER
Based upon the above findings of fact and conclusions of law,
(1) the complaint of David Rife is WITHDRAWN and the proceeding is
DISMISSED pursuant to a settlement agreement between Rife and
Respondent; (2) the Complaint of Jimmy Sizemore and this proceeding
is DISMISSED for failure to establish a violation of section 105(c)
of the Act.

/I(Z,tM-£-~ klffvv cJ..,,,·-TC:/(_

J Administrative
James A. Broderick
Law Judge
Distribution:
Tony Opp~gard, Esq., and Martha P. Owen, Esq., Appalachian
Research and Defense Fund of Kentucky, Inc., P.O. Box 360,
Hazard, KY 41701 (Certified Mail)
Thomas W. Miller, Esq., Miller, Griffin & Marks, 700 Security
Trust Bllilding, Lexington, KY 40507 (Certified Mail)

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

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

Jul ..!, ...

ji1'11:~_;
~

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 81-301-M
A.C. No. 04-04218-05014 F
MINE: Bi 11 ie

AMERICAN BORATE COMPANY,
Respondent
DECISION
Appearances:

Theresa Kalaski, Esq., Office of the Solicitor
U. S. Department of Labor, Los Angeles, California,
for Petitioner;
Stephen G. Saleson, Esq., San Bernardino, California,
for Respondent.

Before: Judge Vail
STATEMENT OF CASE
On December 2, 1980, a miner at American Borate's Billie mine was killed
when struck by a slab of rock that fell from the roof. The Secretary of
Labor, after investigating the accident, issued to American Borate a 107(a)
irrnninent danger withdrawal order. The Secretary also alleged American Borate
violated 30 C.F.R. § 57.3-20 which reads:
Mandatory. Ground support shall be used if the operating
experience of the mine, or any, particular area of the mine,
indicates that it is required. If it is required, support, including timbering,_ rock bolting, or other methods shall be
consistent with the nature of the ground and the mining method
used.
In this proceeding, American Borate contests both the Secretary's finding of
a violation and the proposed penalty based upon it.
A hearing was held, pursuant to notice, in Las Vegas, Nevada, on March
2, 1982. Witness for the Secretary was Vaughn Duaine Cowley, official of the
Mine Safety and Health Administration (MSHA), who investigated the accident.
Witnesses for American Borate were Dale Parson Bess, shift superintendent in
charge on the day the fatality occurred, Charles Garrett, mine manager at the
Billie mine, Lupe Regalado, employed in the safety department to provide
employees the forty hours and annual refresher training, Henry Mcintire,

1 ,. \ . .
~

1"

...L ... JO

associate safety engineer for mining for the Division of Industrial Safety,
State of California, and Richard Russel Renner, Chief Criminologist for the
Las Vegas Metropolitan Police Department, Las Vegas, Nevada.
Both parties were afforded the opportunity to file post-hearing briefs
but only American Borate chose to do so. Having considered American Borate's
brief and contentions of the parties, and the whole record, I make the
following decision. To the extent that the contentions of the parties are
not incorporated in this decision, they are rejected.
FINDINGS OF FACT
1. American Borate's Billie mine is an underground borate minerals,
primarily colemanite, mine near Death Valley, California. Mining proceeds by
cut and fill using room and pillar method. Drifts are cut with a continuous
mining machine followed by roof bolting using mats with five foot roof bolts
on four foot centers.
2. On December 2, 1980, miners Donald Pribbenow and Orval Duncan were
assigned the task of rock bolting in the No. 1 south cross cut off the No. 1
drift west of the 1160 level. Immediately prior to the fatal accident that
occurred this day, they had installed approximately twenty bolts, four or
five mats, and one roll of wire across the back near the face. When Pete
Quick, the shift foreman left this area of the mine, Pribbenow and Duncan had
approximately two more bolts to put in with the existing mat in place.
Shortly thereafter, a slab of rock fell from the roof striking Duncan and
causing his death.
3. The process used in the Billie mine for roof bolting consisted of
securing steel mats onto the back of the drift with a split set roof bolt
with a ring and six by six inch or eight by eight inch plate on the bottom to
hold the mat against the roof. Mats are steel straps five to eight feet long
with holes drilled for the roof bolts. These mats are placed over the wire
mesh used to control the roof (Tr. 20-21).
4. Duncan and Pribbenow had both received the required forty hour
training course in mine safety followed by an eight hour refresher course.
Both miners had worked for American Borate approximately 12 months (Tr.
119-120).
5. At approximately 5:45 a.m., Duncan and Pribbenow drove a Young buggy
to a point where the back railing on the work platform was approximately 2 to
2 1/2 feet from the face of the drift. The roof bolts and steel mats had
been installed on the roof up to a point 4 to 6 feet from the face. Duncan
and Pribbenow were standing on the work platform of the Young buggy operating
a jackleg used to drill holes in the roof for the bolts. The two miners were
approximately two to three feet back of the back railing of the Young buggy
drilling a hole in the roof two feet back from the face. This hole was
drilled at a seventy degree angle. While standing in this position, Duncan
and Pribbenow were under supported roof (Tr. 51-59, and Resp. Ex. R4). A

slab of rock fell striking the Young buggy on the left side rail and tipping
onto the platform hitting Duncan.
6. Vaughan Duaine Cowley, investigating the accident for MSHA, issued a
107(a) imminent danger withdrawal order to American Borate on December 4,
1980, which is the subject of this case. In the order, American Borate is
cited for an alleged violation of "57.3-20" and, under "condition or
practice" reads,
A ground fall fatality occurred in the underground workings.
The ground support used was not consistent with the nature
of the ground and mining method because temporary support was
not used to protect miners working ahead of permanent supported
ground. The mine operator shall immediately institute a program of temporary ground support to protect mine workers working under ground not permanently supported and shall develop
and institute standardized ground support plans for each type
of mine opening. The ground support plan shall be submitted
to an authorized representative of the Secretary for review
and shall be updated as mining conditions change.
ISSUES
1. Was American Borate properly charged with a violation of the ground
support requirements under the standard cited?
2. Did the violation occur as alleged and, if so, what is the
appropriate penalty?
DISCUSSION
The Secretary has the burden in this case to prove that a violation of
the cited standard occurred. Based upon a careful review of all of the
evidence of record, I find that the alleged violation was not proven and that
the citation should be vacated. This conclusion is based principally on the
testimony of the Secretary's only witness. Inspector Cowley testified that
upon arriving at the Billie mine after notification of the fatal accident, he
went underground to investigate. Upon arriving at the location in the mine
where the fall had occurred, he discovered that the Young buggy on which the
miners had been standing and working had been moved to allow the deceased
miner to be removed. Cowley was able to determine where the Young buggy had
previously been standing from the tire tracks in the wet ground. Cowley was
given information surrounding the facts of the accident by Pribbenow who had
been working with Duncan when the roof fall occurred. Pribbenow told Cowley
that after Quick, the shift foreman left, he and Duncan decided to put up two
more mats between the last existing mat and the face. They backed the Young
buggy up to the face and started to drill a hole for a roof bolt. Duncan had
just changed the starter drill on the jackleg drill to a four foot steel and
Pribbenow started drilling in the hole again when the slab fell hitting on
the left side rail of the Young buggy and bouncing into the flatbed area
striking Duncan.

1''r-:;

..l. '·- J

(j

Cowley testified that during the first day's investigation he determined
that the back of the buggy was approximately two feet from the face but that
he did not locate the hole in the roof where the drill had been placed. The
next day, after a conversation with Pribbenow, Cowley went back to the scene
and located the drill hole. On direct examination, Cowley stated that after
finding the drill hole, he put a tamping stick or scaling bar in the hole and
ran an imaginary line down to where he though the jackleg drill would be and
concluded that the two miners were under unprotected roof (Tr. 33). Based
upon this, Cowley concluded the miners should have used temporary support,
either steel hydraulic jacks or wooden timber stalls, to continue the roof
bolting in this area. Several days later, on December 4, 1980, Cowley issued
the 107(a) order and indicated that when American Borate came up with a
positive plan for ground control, he would modify the order (Tr. 37).
The record shows that American Borate had an approved roof control plan
which had been in existence for sometime. The method of roof control being
used at the time of the accident was consistent with the roof control plan
and in compliance with its requirements. Cowley stated that he did not cite
American Borate for a violation of their roof control plan but rather to improve on the plan by incorporating temporary ground control methods along
with what already was required (Tr. 74).
At the hearing, Cowley testified on cross-examination that the back of
the Young buggy was approximately 2 to 2 1/2 feet from the face of the drift
and that the hole which was being drilled was also approximately 2 1/2 feet
from the face. He also stated that the last row of mats supporting the roof
was 4 to 6 feet from the face, and that he determined the hole being drilled
was at a 70 degree angle to the vertical. He determined that the jackleg
drill was most likely located in the middle of the flat bed of the Young
buggy and probably four feet from the back railing. In response to questions
by counsel for American Borate, Cowley testified as follows (Tr. 58-60):

Q. Apparently, Mr. Cowley, perhaps I am wrong but apparently
based on what we have drawn here from your facts and figures
it appears that the person at the time the drilling was done
would have been standing under supported ground, is that correct,
sir?
A. It shows that, yes.

Q. Do you wish to change your opinion now as to whether at the
time of the accident Mr. Duncan was standing under supported or
unsupported ground?
A. No, my figures 1s wrong.

Q. Your figures?
A. On that distances.

Q. Well, what I am saying 1s do you think that what we have

drawn here today as respondent's four is more accurate based
on all the statements, and measurements, and photographs that
were taken than perhaps the measurements that you made that
morning, the 4th.
A. Yes.

Q. Thank you, sir.

You may resume the witness stand.

(Witness resumed the witness stand)

Q.

So as of today then it is your belief that "in fact based on
representations as we have gone through them today that Mr. Duncan
was standing under supported ground at the time of the accident
rather than unsupported ground?

A. I guess.

Q. And if he was standing under unsupported ground then the fact as
to whether there had been temporary ground support placed or not
would have no bearing on the accident, isn't that true?
A. On those measurements, yes.

Q. Would it not be correct, sir, based on our drawing today and
the accuracy of it that in fact a violation did not occur on the
morning of December 2nd, 1980?
A. According to that diagram there was no violation.
Cowley was asked the following questions by this writer (Tr. 76-79).

Q. Now, is it your contention that Duncan was standing under unsupported roof when he was standing there by A?
A. Not according to that, sir.

Q. Well, what is your contention then as far as what you stated
here as far as the violation is concerned there?
A. My measurements was lousy.

Q.

If Duncan were standing under supported roof do you still
feel that there was a violation by the Company of the Section
fifty-seven point three dash twenty?

A.

If he was standing under supported ground there was none.

I conclude from the testimony above and other evidence presented in this
case, that the Secretary failed to prove by a preponderance thereof a
violation of the cited regulation. In the course of the inspector's
testimony, he has stated that if the miners were not working under
unsupported roof, there was no violation. The most credible evidence
indicates that the miners were under supported roof when the fall occurred.
The procedure used in the mining process by American Borate in this
instance was in compliance with the approved roof control plan and what had
been successful in the past and was considered by management as proper
procedure for the area Duncan and Pribbenow were working in. In the normal
sequence of its mfning operations American Borate has taken steps to provide
adequate support consistent with the nature of the ground in compliance with
the cited regulation and thus, the Secretary has failed to sustain the burden
of proof by a preponderance of the evidence that the regulation was violated.
ORDER
Citation No. 380358 and the proposed penalty therefore are VACATED.

Virgi 1 Wfvail
Adminisfrative Law Judge

Distribution:
Theresa Kalaski, Esq. (Certified Mail)
Office of the Solicitor
United States Department of Labor
3247 Federal Building
300 N. Los Angeles Street
Los Angeles, California 90012
Stephan G. Saleson, Esq. (Certified Mail)
Gresham, Varner, Savage, Nolan & Tilden
398 West Fourth Street
San Bernardino, California 92401

/blc

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

20006

July 15, 1983

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 83-4
A.C. No. 13-01855-03501
No. 6 Mine

MICH COAL COMPANY,
Respondent
DENIAL OF MOTION TO DISMISS
ORDER TO SUBMIT INFORMATION
In accordance with what apparently now is becoming
standard practice the Solicitor has filed a motion to dismiss
the petition for assessment of a civil penalty for the one
violation involved in this matter predicated solely upon
section 100.4 of the regulations of the Mine Safety and
Health Administration, 30 C.F.R. § 100.4. According to the
Solicitor this regulation provides for the assessment of a
$20 single penalty for a violation which is not reasonably
likely to result in reasonably serious injury or illness.
The Solicitor has orally advised that his records disclose
no evidence on gravity or negligence.
The citation was
issued for a failure to submit a valid respirable dust
sample or giving a valid reason for not sampling the designated work position for the bimonthly period June-July
1982.
I am unable to grant the Solicitor's motion on the
basis of the present record. The Act makes very clear that
penalty proceedings before the Commission are de novo. The
Commission itself recently recognized that it is not bound
by penalty assessment regulations adopted by the Secretary
but rather that in a proceeding before the Commission the
amount of the penalty to be assessed is a de novo determination based upon the six statutory criteria specified in
section llO(i) of the Act and the information relevant
thereto developed in the course of the adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March
1983). Indeed, if this were not so, the Commission would be
nothing but a rubber stamp for the Secretary. This case

1 '' f' . J
0 ,·__.

-1..

1 •.-

demonstrates the point.
Not only would granting the motion
to dismiss make the Commission a rubber stamp for MSHA but
it would allow the Solicitor to be one too because the
Solicitor has freely admitted that he does not have any
information regarding negligence and gravity.
I cannot
determine that a nominal penalty of $20 is appropriate
when I am given no information regarding negligence and
gravity or any of the other statutory criteria.
The fact that MSHA may have determined that this violation
is not "significant and substantial" as that term presently
is defined by the Commission, is not determinative or even
relevant in these proceedings.
I agree with Administrative
Law Judge Broderick that whether a cited violation is checked
as significant and substantial is per se irrelevant to the
determination of the appropriate penalty to be assessed.
United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983),
PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for dismissal be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalty is justified and
dismissal warranted.
Otherwise, this case will be assigned
and set down for hearing on the merits.

Law Judge
Distribution:
Robert S. Bass, Esq., Office of the Solicitor, u. S. Department
of Labor, Room 2106, 911 Walnut Street, Kansas City, MO
64106 (Certified Mail)
Mr. Dale Mich, Mich Coal Company, P. 0. Box 16, Oskaloosa,
IA 52577
(Certified Mail)

/ln

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

July 15, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (.MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 83-20
A.C. No. 29-01820-03505

v.
Arroyo Mine No. 1
ARROYO MINING COMPANY, INC.,
Respondent
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
In accordance with what apparently now is becoming
standard practice, the Solicitor has filed a motion for
settlement in the amount of $20 for the one violation
involved in this matter. The motion is predicated solely
upon section 100.4 of the regulations of the Mine Safety and
Health Administration, 30 C.F.R. § 100.4 which provides for
the assessment of a $20 penalty for a violation which is not
reasonably likely to result in a reasonably serious injury
or illness. The citation was issued for a failure to submit
the required respirable dust samples.
I am unable to grant the Solicitor's motion on the
basis of the present record.
The Solicitor has furnished
no information. The citation itself contains boxes which
were checked by the inspector indicating the feared event
was reasonably likely and that negligence was moderate.
I cannot approve a settlement based upon checks in boxes
but even if I could the checks in this case would contraindicate a $20 penalty.
Even more importantly, the Act makes very clear that
penalty proceedings before the Commission are de novo. The
Commission itself recently recognized that it is not bound
by penalty assessment regulations adopted by the Secretary
but rather that in a proceeding before the Commission the
amount of the penalty to be assessed is a de novo determination based upon the six statutory criteria specified in
section llO(i) of the Act and the information relevant
thereto developed in the course of the adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March
1983).
Indeed, if this were not so, the Commission would be
nothing but a rubber stamp for the Secretary.

"f I' I \ .

'

_._. ·, ......

, ·J

The fact that MSHA may have determined that this
violation is not "significant and substantial" as that term
presently is defined by the Commission, is not determinative
or even relevant in these proceedings.
I agree with
Administrative Law Judge Broderick that whether a cited
violation is checked as significant and substantial is
per se irrelevant to the determination of the appropriate
penalty to be assessed. United States Steel Mining Co.,
Inc., 5 FMSHRC 934 (May 1983), PDR granted- June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalty is justified and
settlement warranted. Otherwise, this case will be assigned
and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Jack F. Ostrander, Esq., Office of the Solicitor, u. S.
Department of Labor, 555 Griffin Square Building, Dallas, TX
75202
(Certified Mail)
Mr. Jack A. Lawrence, Arroyo Mining Company, Inc., Star
Route, Box 16B, Bernalillo, NM 87004
(Certified Mail)

/ln

() (' )
1 :-OU

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

20006

July 15, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 83-80
A.C. No. 36-04702-03501

v.
Skidmore Slope
MISHBUCHA ENTERPRISES, LTD.
Respondent
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
In accordance with what apparently now is becoming
standard practice, the Solicitor has filed a motion for
settlement in the amount of $40, $20 apiece for the two
violations involved in this matter. This motion is predicated solely upon section 100.4 of the regulations of the
Mine Safety and Health Administration, 30 C.F.R. § 100.4
which provides for the assessment of a $20 single penalty
for a violation MSHA believes is not reasonably likely to
result in a reasonably serious injury or illness. The
violations involve a failure to take a required valid dust
sample.
I am unable to approve the motion for settlement on the
basis of the present record.
In my opinion $20 is a nominal
penalty which indicates a lack of gravity.
I note that on
the citation form the inspector checked the box indicating
that the occurrence of the event against which the mandatory
standard is directed was unlikely. However, I am unwilling
to accept a check in a box on a form without knowing any of
the reasons for the inspector's conclusion. Moreover, I
have been told nothing about negligence or any of the other
statutory factors which would enable me to make an informed
judgement as to proper penalty amounts.
The MSHA regulation in question is not binding upon the
Commission.
Indeed, it is not even relevant.
The Act makes
very clear that penalty proceedings before the Commission
are de novo. The Commission itself recently recognized that
it isnot bound by penalty assessment regulations adopted by
the Secretary but rather that in a proceeding before the

1

,-~

f >

.L·. ..._.,l.1

Commission the amount of the penalty to be assessed is a
de novo determination based upon the six statutory criteria
specified in section llO(i) of the Act and the information
relevant thereto developed in the course of the adjudicative
proceeding.
Sellersburg Stone Company, 5 FMSHRC 287 (March
1983).
Indeed, if this were not so, the Commission would be
nothing but a rubber stamp for the Secretary.
The fact that MSHA may have determined that these
violations are not "significant and substantial" as that
term presently is defined by the Commission, is not determinative or even relevant in these proceedings.
I agree
with Administrative Law Judge Broderick that whether a cited
violation is checked as significant and substantial is per se
irrelevant to the determination of the appropriate penalty
to be assessed.
United States Steel Mining Co., Inc.,
5 FMSHRC 934 (May 1983), PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalties are justified
and settlement warranted.
Otherwise, this case will be
assigned and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Thomas A. Brown, Esq., Office of the Solicitor, U. S.
Department of Labor, Rm. 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104
(Certified Mail)
Mishbucha Enterprises, LTD, Mr. Roy Harner, President,
Spring Glen, PA 17978

/ln

1 :wU (
(.\fl

J

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

July 15, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AD~INISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. SE 83-26-M
A.C. No. 08-00826-05501
Newburn Pit

MACASPHALT, INC.,
Respondent
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFOH.MATION
In accordance with what apparently now is becoming
standard practice, the Solicitor has filed a motion for
settlement in the amount of $60, $20 each, for the three
violations involved in this matter.
The Solicitor does not discuss any of the violations.
He only attaches the proposed assessment sheet and the
citations. He states that the inspector's evaluation is
attached but it is not.
In my opinion $20 is a nominal penalty which indicates
a lack of gravity. The first violation was issued for an
inoperative automatic reverse signal alarm on a front end
loader. The second violation was issued because brakes on
the front end loader needed adjustment or repair. The third
viol~tion was issued for a missing section of hand railing
on the walkway on the first floor of the plant in front of
the roll screen. On the face of these violations I would
have no basis to conclude they are nonserious. Moreover,
I have been told nothing by the Solicitor about the rest
of the six statutory criteria.
The assessment sheet indicates that the $20 penalties
were issued in accordance with the so-called "single penalty
assessment" under section 100.4 of the regulations of the
Mine Safety and Health Administration, 30 C.F.R. § 100.4
which provides for the assessment of a $20 single penalty
for a violation MSHA believes is not reasonably likely to
result in a reasonably serious injury or illness. This
regulation is, however, not binding upon the Commission or

1

I

'

I>

•.

l

..L .. 0U

even relevant in these proceedings.
The fact the operator
has paid the original assessed amounts cannot preclude the
Commission from acting in accordance with the governing
statute.
The Act makes very clear that penalty proceedings
before the Commission are de novo.
The Commission itself
recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in
a proceeding before the Commission the amount of the penalty
to be assessed is a de novo determination based upon the six
statutory criteria specified in section llO(i) of the Act
and the information relevant thereto developed in the course
of the adjudicative proceeding. Sellersburg Stone Company,
5 FMSHRC 287 (March 1983).
Indeed, if this were not so, the
Commission would be nothing but a rubber stamp for the
Secretary.
The fact that MSHA may have determined that these
violations are not "significant and substantial" as that
term presently is defined by the Commission, is not determinative or even relevant in these proceedings.
I agree
with Administrative Law Judge Broderick that whether a cited
violation is checked as significant and substantial is
per se irrelevant to the determination of the appropriate
penalty to be assessed.
United States Steel Mining Co.,
Inc., 5 FMSHRC 934 (May 1983), PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalties are justified
and settlement warranted.
Otherwise, this case will be
assigned and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge

Distribution:
James L. Stine, Esq., Office of the Solicitor, U.S. Department
of Labor, 1371 Peachtree Street, N.E., Atlanta, GA 30367
(Certified Mail)
Mr. Raymond H. Garriott, Safety Director, Macasphalt, Inc.,
P. 0. Box 2579, Myrtle Street & SCL Railroad, Sarasota, FL
33578
(Certified Mail)

/ln

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

20006

July 15, 1983
CIVIL PENALTY PROCEEDING

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

Docket No. VA 83-7
A.C. No. 44-0404856-03501-I37
Buchanan No. 1 Mine

C. J. LANGENFELDER & SON,
INC.,
Respondent
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
In accordance with what apparently now is becoming
standard practice, the Solicitor has filed a motion for
settlement in the amount of $240 for the 12 violations
involved in this matter.
This motion is predicated solely
upon section 100.4 of the regulations of the Mine Safety and
Health Administration, 30 C.F.R. § 100.4 which provides for
the assessment of a $20 single penalty for a violation MSHA
believes is not reasonably likely to result in a reasonably
serious injury or illness.
I have reviewed the 12 violations.
They were issued for a variety of conditions including
inoperative automatic warning device, lack of a suitable
fire extinquisher and inoperative lights.
I am unable to approve the motion for settlement on the
basis of the present record.
In my opinion $20 is a nominal
penalty which indicates a lack of gravity.
I have been told
nothing about gravity, negligence or any of the other
statutory factors which would enable me to make an informed
judgment as to proper penalty amounts.
The fact the operator
has paid the $240 cannot preclude the Commission from acting
in accordance with the governing statute.
Section 100.4 is not binding upon this Commission.
Indeed, it is not even relevant. The Act makes very clear
that penalty proceedings before the Commission are de novo.
The Commission itself recently recognized that it iS-n~
bound by penalty assessment regulations adopted by the
Secretary but rather that in a proceeding before the Commission the amount of the penalty to be assessed is a de novo

1:·271

determination based upon the six statutory criteria specified
in section llO(i) of the Act and the information relevant
thereto developed in the course of the adjudicative proceeding.
Sellersburg Stone Company, 5 FMSHRC 287 (March 1983).
Indeed, if this were not so, the Commission would be nothing
but a rubber stamp for the Secretary.
The fact that MSHA may have determined that these
violations are not "significant and substantial" as that
term presently is defined by the Commission, is not determinative or even relevant in these proceedings.
I agree
with Administrative Law Judge Broderick that whether a cited
violation is checked as significant and substantial is
per se irrelevant to the determination of the appropriate
penalty to be assessed.
United States Steel Mining Co.,
Inc., 5 FMSHRC 934 (May 1983), PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for
me to determine whether the proposed penalties are justified
and settlement warranted. Otherwise, this case will be
assigned and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Agnes M. Johnson-Wilson, Esq., Office of the Solicitor,
u. S. Department of Labor, Rm. 14480-Gateway Building,
3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
C. J. Langenfelder & Son, Inc., Mr. Harry M. Elliott,
Treasurer, 8427 Pulaski Highway, Baltimore, MD 21237
(Certified Mail)

/ln

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

July 15, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. VA 83-16
A.C. No. 44-05217-03501
No. 1 Strip

HUMPHREYS ENTERPRISES, INC.,
Respondent
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion for settlement for the
eight violations involved in this matter. With respect to
seven violations the Solicitor seeks settlements in the
amount of $20 apiece. For the eighth violation the Solicitor
seeks a settlement in the amount of $147.
First, I will discuss the seven violations.
The Solicitor
does not discuss the circumstances of any of these violations.
He merely states that they did not constitute an imminent
danger and are not significant and substantial, paraphrasing
the Commission's present interpretation of the term "significant
and substantial." In accordance with what apparently now is
becoming standard practice, the Solicitor relies upon section
100.4 of the regulations of the Mine Safety ~nd Health
Administration, 30 C.F.R. § 100.4 which provides for the
assessment of a $20 single penalty for a violation MSHA
believes is not reasonably likely to result in a reasonably
serious injury or illness.
I am unable to approve the proposed settlements for
these seven violations on the basis of the present record.
In my opinion $20 is a nominal penalty which indicates a
lack of gravity.
I have been told nothing about gravity,
negligence or any of the other six statutory factors which
would enable me to make an informed judgement as to proper
penalty amounts.

The MSHA regulation in question is not binding upon the
Commission.
Indeed, it is not even relevant. The Act makes
very clear that penalty proceedings before the Commission
are de novo. The Commission itself recently recognized that
it iS-not bound by penalty assessment regulations adopted by
the Secretary but rather that in a proceeding before the
Commission the amount of the penalty to be assessed is a
de novo determination based upon the six statutory criteria
specified in section llO(i) of the Act and the information
relevant thereto developed in the course of the adjudicative
proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March
1983). Indeed, if this were not so, the Commission would be
nothing but a rubber stamp for the Secretary.
The fact that MSHA may have determined that these
violations are not "significant and substantial" as that
term presently is defined by the Commission, is not determinative or even relevant in these proceedings.
I agree
with Administrative Law Judge Broderick that whether a cited
violation is checked as significant and substantial is
per se irrelevant to the determination of the appropriate
penalty to be assessed.
United States Steel Mining Co.,
Inc., 5 FMSHRC 934 (May 1983), PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge. This can only be
done on the basis of an adequate record.
Finally, I am unable to approve the proposed $147
settlement for the eighth violation which was issued for
ineffective brakes on a 35-ton truck.
The Solicitor states
that gravity and negligence were high but that the operator
demonstrated good faith abatement and has a relatively good
history of complying with the Act.
I have been told nothing
about the operator's size and its ability to continue in
business. When the Solicitor advises that gravity and
negligence were high a penalty of $147 seems relatively low
unless other factors mitigate against imposition of a more
severe penalty. The Solicitor should inform me as to all
statutory criteria.

ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalties are justified
and settlement warranted.
Otherwise, this case will be
assigned and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Craig W. Hukill, Esq., Office of the Solicitor, U. S.
Department of Labor, 4015 Wilson Blvd., Rm. 1237A, Arlington,
VA 22203
(Certified Mail)
Mr. Mike Thomas, Humphreys Enterprises, Inc., P. 0. Box 668,
Norton, VA 24273
(Certified Mail)

/ln
nr-~;.

l ,. ., 'u

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

20006

July 15, 1983
CIVIL PENALTY PROCEEDING

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

Docket No. VA 83-17
A.C. No. 44-03604-03504
Mine No. 1

VIKING MINING CORPORATION,
Respondent
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
In accordance with what apparently now is becoming
standard practice, the Solicitor has filed a motion for
settlement in the amount of $20 for the one violation
involved in this matter. The motion is predicated solely
upon section 100.4 of the regulations of the Mine Safety and
Health Administration, 30 C.F.R. § 100.4 which provides for
the assessment of a $20 single penalty for a violation MSHA
believes is not reasonably likely to result in a reasonably
serious injury or illness. This violation was issued because
the operator did not take one valid respirable dust sample
from the designated area for the bimonthly sampling period
of October-November 1982.
I am unable to approve the motion fo{ settlement on the
basis of the present record.
In my opinion $20 is a nominal
penalty which indicates a lack of gravity. I have been told
nothing about gravity, negligence or any other factors which
would enable me to make an informed judgement as to proper
penalty amounts.
The MSHA regulation in question is not binding upon the
Commission.
Indeed, it is not even relevant. Moreover, the
fact that the operator has tendered payment cannot preclude
the Commission from acting in accordance with the governing
statute.
The Act makes very clear that penalty proceedings
before the Commission are de novo.
The Commission itself
recently recognized that it is not bound by penalty assessment
regulations adopted by the Secretary but rather that in a

1 ,. . . . _ ,,.., ,·1
..i. ' - I

tJ

proceeding before the Commission the amount of the penalty
to be assessed is a de novo determination based upon the six
statutory criteria specified in section llO(i) of the Act
and the information relevant thereto developed in the course
of the adjudicative proceeding. Sellersburg Stone Company,
5 FMSHRC 287 (March 1983).
Indeed, if this were not so, the
Commission would be nothing but a rubber stamp for the
Secretary.
The fact that MSHA may have determined that this
violation is not "significant and substantial" as that term
presently is defined by the Commission, is not determinative
or even relevant in these proceedings.
I agree with Administrative Law Judge Broderick that whether a cited violation
is checked as significant and substantial is per se irrelevant
to the determination of the appropriate penalty t~be assessed.
United States Steel Mining Co., Inc., 5 FMSHRC 934 (May
1983), PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfull and discharge.
This can only be
done on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalty is justified and
settlement warranted. Otherwise, this case will be assigned
and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Leo McGinn, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Blvd., Rm. 1237A, Arlington, VA 22203
(Certified Mail)
Viking Mining Corporation, Leon or David Stevenson, Drawer
II, Grundy, VA 24614
(Certified Mail)

/ln

l .. _ ' {

nt-,',

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

20006

July 15, 1983

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-37-M
A.C. No. 45-00727-05501
East Salah Pit & Plant

YAKIMA CEMENT PRODUCTS
COMP ANY I INC. I
Respondent
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion to approve a settlement
for the five violations involved in this matter. The proposed settlement in the amount of $110 is the originally
assessed amount. !/
The Solicitor has given me no basis whatsoever to
approve the proposed settlement. None of the violations are
explained or analyzed.
The Solicitor merely states that the
operator has paid the originally assessed amount. Four of
the violations were assessed at $20 apiece and one violation
was assessed at $30. In my opinion these amounts denote a
lack of gravity.
The citations are for lack of guarding on
a belt drive, missing or misplaced covers on various equipment
which might create a shock hazard and an unintentional
ground fault.
I do not know whether these conditions are
serious or not but I certainly could not find lack of gravity
on the face of the subject violations. On two of the
citations the inspector has checked boxes relating to gravity
and negligence.
I do not believe I can approve settlements
based upon checking boxes when no reasons are given. Also
here in one case negligence was checked as moderate and in
the other occurrence of the feared event was thought likely.
It appears from the assessment sheet that the four
violations which are assessed at $20 each were done so as
the result of the so-called "single penalty assessment"
which is set forth in section 100.4 of the regulations of
the-Mine Safety and Health Administration, 30 C.F.R.
§ 100.4 which provides for the assessment of a $20 single

!/

The Solicitor's motion mistakenly sets forth the amount
as $100. This is obviously wrong since both the assessment
sheet and the memorandum to the Solicitor from MSHA set forth
the amount as $110.
1 """'~'-.i

..l..~10

penalty for a violation MSHA believes is not reasonably
likely to result in a reasonably serious injury or illness.
This regulation is not binding upon the Commission and is
not a basis upon which I could approve a settlement.
The Act makes very clear that penalty proceedings
before the Commission are de novo.
The Commission itself
recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in
a proceeding before the Commission the amount of the penalty
to be assessed is a de novo determination based upon the six
statutory criteria specified in section llO(i) of the Act
and the information relevant thereto developed in the course
of the adjudicative proceeding. Sellersburg Stone Company,
5 FMSHRC 287 (March 1983).
Indeed, if this were not so, the
Commission would be nothing but a rubber stamp for the
Secretary.
The fact that MSHA may have determined that these
violations are not "significant and substantial" as that
term presently is defined by the Commission, is not determinative or even relevant in these proceedings.
I agree
with Administrative Law Judge Broderick that whether a cited
violation is checked as significant and substantial is per se
irrelevant to the determination of the appropriate penalty
to be assessed.
United States Steel Mining Co., Inc.,
5 FMSHRC 934 (May 1983), PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalties are justified
and settlement warranted.
Otherwise, this case will be
assigned and set down for hearing on the merits.

c__--~----\~~

Paul Merlin
Chief Administrative Law Judge

Distribution:
Ernest Scott, Jr., Esq., Office of the Solicitor, U. S.
Department of Labor, 8003 Federal Office Building, Seattle,
WA 98174
(Certified Mail)
Yakima Cement Products Company, Inc., 1202 South 1st Street,
Box 436, Yakima, WA 98901
(Certified Mail)

/ln
1r·c1)
_:._ • -.

~ j

\ '

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

July 15, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-64-M
A.C. No. 04-01959-05501

v.
Sisquic Pit and Mill
KAISER SAND & GRAVEL CO.,
Respondent
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion for settlement for the
one violation involved in this matter.
She advises that the
operator has paid the originally assessed amount of $20 and
has withdrawn its notice of contest.
Since the Commission's jurisdiction has attached, the
operator's proposed withdrawal of its notice of contest is
not determinative.
Under section 110 of the Act the Commission has the responsibility to insure that all settlements
comply with the requirements of the law including the six
statutory criteria.
In her motion the Solicitor sets forth
information regarding history, size and ability to continue
in business. With respect to abatement, negligence and
gravity the Solicitor directs my attention to the "inspector's
statement, Exhibit 1 attached hereto, which reflects the
testimony of the inspector if he were to testify." There
is, however, no inspector's statement attached to the motion.
Such carelessness is unfortunately all too typical of these
settlement motions. The Commission and its Judges should not
have to waste time repeatedly attempting to obtain information
necessary to dispose of settlement motions.
Moreover, on the face of the matter, I cannot approve
the proposed settlement.
In my opinion, $20 is a nominal
penalty which denotes a lack of gravity.
The dry vegetation
cited by the inspector appears to fall squarely within the
mandatory standard.
The proximity of this vegetation to the
electrical substation does not necessarily mandate a finding
that the condition was serious but if there was no gravity
there must be an explanation why.

ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalty is justified and
settlement warranted. Otherwise, this case will be assigned
and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Theresa Kalinski, Esq., Office of the Solicitor, U. S.
Department of Labor, Room 3247 Federal Building, 300 North
Los Angeles Street, Los Angeles, CA 90012
(Certified Mail)
Mr. Clair E. Hay, Kaiser Sand & Gravel Company, P. 0. Box
580, Pleasanton, CA 94566
(Certified Mail)

/ln

1 ('

,\

~)
...LI~ l ) 1-v

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

20006

July 15, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 83-171
A.C. No. 46-05963-03503
Ridge Land No. 22

RIDGE LAND COMPANY,
Respondent
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
In accordance with what apparently now is becoming
standard practice, the Solicitor has filed a motion for
settlement in the amount of $60 for the three violations
involved in this matter. This motion is predicated solely
upon sectidn 100.4 of the regulations of the Mine Safety
and Health Administration, 30 C.F.R. § 100.4 which provides
for the assessment of a $20 single penalty for a violation
which MSHA believes is not reasonably likely to result in
a reasonably serious injury or illness. The first violation
was issued for failure to properly install a fire sensor
system. The second violation was issued for failure to
have proper lighting on a continuous mining machine and
failure to properly illuminate the working place. The
third violation was issued for failure to have proper
lighting on the roof bolting machine and failure to
properly illuminate the working place.
I am unable to approve the motion for settlement on
the basis of the present record.
In my opinion $20 is a
nominal penalty which indicates a lack of gravity.
I have
been told nothing about gravity, negligence or any other
factors which would enable me to make an informed judgment
as to proper penalty amounts.
The Act makes very clear that penalty proceedings
before the Commission are de novo. The Commission itself
recently recognized that i~is not bound by penalty assessment regulations adopted by the Secretary but rather that
in a proceeding before the Commission the amount of the
penalty to be assessed is a de novo determination based
upon the six statutory criteria specified in section llO(i)

of the Act and the information relevant thereto developed
in the course of the adjudicative proceeding.
Sellersburg
Stone Company, 5 FMSHRC 287 (March 1983).
Indeed, if this
were not so, the Commission would be nothing but a rubber
stamp for the Secretary.
The fact that MSHA may have determined that these
violations are not "significant and substantial" as that
term presently is defined by the Commission, is not determinative or even relevant in these proceedings.
I agree
with Administrative Law Judge Broderick that whether a
cited violation is checked as significant and substantial
is per se irrelevant to the determination of the appropriate
penalty to be assessed.
United States Steel Mining Co.,
Inc., 5 FMSHRC 934 (May 1983), PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only
be done on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for
me to determine whether the proposed penalties are justified
and settlement warranted.
Otherwise, this case will be
assigned and set down for hearing on the merits.

:

Paul Merlin
Chief Administrative Law Judge

Distribution:
David A. Pennington, Esq., Office of the Solicitor, u. s.
Department of Labor, Rm. 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104
(Certified Mail)
Mr. Edward A. Asbury, President, Ridge Land Company, Inc.,
Drawer 240, Anawalt, WV 24808
(Certified Mail)

/ln

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

July 18, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 82-105
A. C. No. 03-01384-03019
J & B No. 1 Mine

v.
R & S COAL COMPANY, INC.,
Respondent

DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion to approve settlements
for the five violations involved in this matter.
The proposed
settlements are for $20 apiece.
Based upon the present record, I am unable to approve
the proposed settlements.
In my opinion, $20 is a nominal
penalty which indicates a lack of gravity.
~wo citations
were issued for failure to secure compressed gas cylinders.
The third violation was for the lack of a portable fire
extinguisher on a diesel storage tank.
The fourth citation
was issued for the absence of an automatic warning device on
a front end loader.
The fifth citation was issued because a
gasoline container was not a safety can. On the face of
these citations, therefore, it appears that there may well
have been some degree of gravity present in all of them.
The proposed penalties, therefore, do not appear appropriate
or in the public interest.
The Solicitor further states that the violations were
not considered significant and substantial since they were
not reasonably likely to result in a reasonably serious injury or illness.
This motion does not mention section 100.4
of the regulations of the Mine Safety and Health Administration, 30 C.F.R. 100.4, which provides for the assessment of
a $20 single penalty for a violation which MSHA believes is
not reasonably likely to result in a reasonably serious injury or illness.
The rationale employed in this motion is,
however, just like that underlying the regulation since it
relies upon the fact that the violation was not significant
and substantial.
The MSHA regulation and the rationale expressing it are
not binding upon this Commission.
Indeed, they are not even
relevant.
The Act makes very clear that penalty proceedings
before the Commission are de novo.
The Commission itself

recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in
a proceeding before the Commission the amount of the penalty
to be assessed is a de novo determination based upon the six
statutory criteria specified in section llO(i) of the Act
and the information relevant thereto developed in the course
of the adjudicative proceeding. Sellersburg Stone Company,
5 FMSHRC 287 (March 1983). Indeed, if this were not so, the
Commission would be nothing but a rubber stamp for the
Secretary.
The fact that MSHA may have determined that these violations are not ''significant and substantial" as that term presently is defined by the Commission, is not determinative or
even relevant in these proceedings.
I agree with Administrative Law Judge Broderick that whether a cited violation is
checked as significant and substantial is per se irrelevant
to the determination of the appropriate penaltY-to be assessed.
United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983),
PDR granted June 22, 1983. Once this Commission's jurisdiction attaches we h~ve our own statutory responsibilities to
fulfill and discharge.
This can only be done on the basis
of an adequate record.
The Solicitor states with respect to all the violations
that exposure was minimal to none.
I do not know what this
means and even if I did, one such bare conclusion most certainly would not satisfy the requirement that I assess a
penalty amount in accordance with the six statutory criteria.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlements be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalties are justified
and settlements warranted. Otherwise, this case will be
assigned and set down for hearing on the merits.

Paul: Merlin
Chief Administrative Law Judge

-1 I \ p t

.i. ,_ <J \)

Distribution:
Jack F. Ostrander, Esq., Office of the Solicitor, U. S.
Department of Labor, 555 Griffin Square Bldg., Dallas, TX
75202 (Certified Mail)
Rick Brown, R & S Coal Company, Inc., P.
AR 72846 (Certified Mail)

u(
1 r.;,')')'··
yh

o. Box 468, Lamar,

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

July 18, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 82-106
A. C. No. 03-01384-03018
J & B No. 1 Mine

R & S COAL COMPANY, INC.,
Respondent
PARTIAL APPROVAL/DISAPPROVAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion to approve settlements
with respect to the four citations involved in this matter.
The proposed settlements are for $20 apiece.
In my opinion, $20 is a nominal penalty which indicates
a lack of gravity.
Citations Nos. 1025765 and 1024911 are
record-keeping violations.
They are, therefore, on their
face not serious, and I approve the proposed settlements of
$20 each for these violations.
However, I will not issue an
order for the operator to pay these violations until additional information is submitted with respect to the remaining
two violations.
Citation No. 1025764 involves an inadequate braking
system on the front end loader.
Citation No. 1025767 was
issued because the grader did not have an audible warning
device.
The Solicitor represents that the negligence of the
respondent was low and that there were no employees on foot
in the area, thereby reducing the probability of occurrence.
I accept these representations. Nevertheless, it appears
that some degree of gravity may have been present and that
therefore a $20 penalty for each of these violations would
be inappropriate.
In addition, the Solicitor states that the violations
were not considered significant and substantial.
This motion does not specifically mention section 100.4
of the regulations of the Mine Safety and Health Administration,
30 C.F.R. § 100.4, which provides for the assessment of a
$20 single penalty for a violation which MSHA believes is
not reasonably likely to result in a reasonably serious injury or illness.
The rationale advanced by the Solicitor is,
however, the same as appears in the regulation since the
Solicitor relies upon the fact that the violations were not
significant and substantial.
The regulation and the rationale
expressing it are not binding upon this Commission.
Indeed,

they are not even relevant.
The Act makes very clear that
penalty proceedings before the Commission are de ~· The
Commission itself recently recognized that it is not bound
by penalty assessment regulations adopted by the Secretary
but rather that in a proceeding before the Commission the
amount of the penalty to be assessed is a de novo determination based upon the six statutory criteria-Specified in
section llO(i) of the Act and the information relevant
thereto developed in the course of the adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March
1983). Indeed, if this were not so, the Commission would be
nothing but a rubber stamp for the Secretary.
The fact that MSHA may have determined that this violation is not "significant and substantial" as that term presently is defined by the Commission, is not determinative or
even relevant in these proceedings.
I agree with Administrative Law Judge Broderick that whether a cited violation is
checked as significant and substantial is per se irrelevant
to the determination of the appropriate penaltY-to be assessed.
United States Steel Mining Co., Inc., 5 FMSHRC 934 (May
1983), PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the
proposed settlements for Citations No. 1025765 and No.
1024911 are hereby Approved.
It is further Ordered that the proposed settlements for
Citations No. 1025764 and No. 1025767 are hereby Denied.
It
is further Ordered that within 30 days from the date of this
order the Solicitor file information adequate for me to
determine whether the proposed penalties are justified and
settlements warranted for these two violatior-s. Otherwise,
this case will be assigned and set down for hearing on the
merits.

~J_

Paul Merlin
Chief Administrative Law Judge

Distribution:
Jack F. Ostrander, Esq., Office of the Solicitor, U.S.
Department of Labor, 555 Griffin Square Bldg., Dallas, TX
75202 (Certified Mail)
Rick Brown, R & S Coal Company, Inc., P.O. Box 468, Lamar,
AR 72846 (Certified Mail)

/yh

1 ,,.~. .,. .,J (.·1

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

20006

July 18, 1983
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 83-10
A. C. No. 29-01153-03502
San Juan Mine - Prep Plant

v.
SAN JUAN COAL COMPANY,
Respondent

DENIAL OF SETTLEMENT
DENIAL OF DISMISSAL
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion to dismiss this matter
on the grounds that the operator has paid the proposed penalty
in this case thereby making further action unwarranted.
The
fact that the operator has made payment is not dispositive of
this matter and cannot preclude the Commission from acting in
accordance with the governing statute.
Moreover, an examination of the file in this case indicates that more is involved than payment of the proposed penalty
by the operator. There is one violation involved in this case
and the proposed penalty is $20. The assessment sheet indicates that this was a ''single penalty assessment" which was made
pursuant to section 100.4 of the regulations of the Mine Safety
and Health Administration, 30 C.F.R. § 100.4, which provides
for the assessment of a $20 single penalty for a violation which
MSHA believes is not reasonably likely to result in a reasonably
serious injury or illness. The subject citation was issued because the operator did not take a valid respirable dust sample
during the August-September 1982 bi-monthly period from a designated work position as shown on an attached computer printout.
In my opinion, $20 is a nominal penalty which indicates,
among other things, a lack of gravity.
I cannot say on the
face of this violation alone that it is nonserious. Moreover,
I have been told nothing about any of the other statutory criteria which would enable me to make an informed judgment as to
a proper penalty assessment for this violation.
The Act makes very clear that penalty proceedings before
the Commission are de novo. The Commission itself recently
recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in a proceeding before the Commission the amount of the penalty to be

1 0Q'l
{.., \J

assessed is a de novo determination based upon the six statutory criteria specified in section llO(i) of the Act and the
information relevant thereto developed in the course of the
adjudicative proceeding.
Sellersburg Stone Company, 5 FMSHRC
287 (March 1983). Indeed, if this were not so, the Commission
would be nothing but a rubber stamp for the Secretary.
The fact that MSHA may have determined that this violation is not "significant and substantial" as that term
presently is defined by the Commission, is not determinative
or even relevant in these proceedings.
I agree with Administrative Law Judge Broderick that whether a cited violation
is checked as significant and substantial is per se irrelevant
to the determination of the appropriate penalty tO--be assessed.
United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983),
PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
The Solicitor cannot
finesse the matter by purporting to ignore the MSHA regulation
in merely asking for dismissal because the operator has paid
the minimal penalty of $20.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for dismissal be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine the proper amount of a penalty.
Otherwise, this
case will be assigned and set down for hearing on the merits.

-=-?~\\~

Paul Merlin
Chief Administrative Law Judge

Distribution:
Jack F. Ostrander, Esq., Office of the Solicitor, U. S. Department of Labor, 555 Griffin Sq., Suite 501, Dallas, TX 75202
(Certified Mail)
Bert T. Wisner, Safety Supervisor, San Juan Coal Company, P. O.
Box 561, Waterflow, NM 87421 (Certified Mail)

1 ,,

'~·)

,-,.Jt...,

yh

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

20006

July 18, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 83-44
A. C. No. 15-12403-03504
No. 2 Mine

v.
ABRAXIS COAL COMPANY, INC.,
Respondent

DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has submitted a motion for set~lement with
respect to the five violations involved in this matter. The
Solicitor's motion cannot be granted on the basis of the
present record.
Citations No. 2053271 and 2053272 each allege a violation
of 30 C.F.R. § 75.1719-l(d). These concern the failure of the
operator to provide illumination in addition to the illumination provided by the cap lamp of the operator, on a shuttle
car.
The Solicitor states in his motion that the Office of
Assessments correctly evaluated the six criteria when it
assessed a penalty of $130 for each of these two violations.
However, the assessment sheet indicates that the proposed penalty assessment for each of these violations was $91 reduced
from $130 and the operator's check indicates that it paid $91
apiece. Accordingly, I cannot approve the proposed settlements
for these violations because the Solicitor's motion is based
upon one amount whereas MSHA has accepted payment of a lesser
figure.
The proposed settlements for the remaining three violations are for $20 each. The Solicitor states only that he
believes that the Assessment Office correctly determined that
a "single penalty assessment" was appropriate and that the
inspector did not indicate that the respondent was negligent,
the gravity contemplated, or the number of persons affected.
The proposed settlements for these three violations is therefore predicated solely upon section 100.4 of the regulations
of the Mine Safety and Health Administration, 30 C.F.R. 100.4.
This regulation provides for the assessment of a $20 single
penalty for a violation which is not reasonably likely to
result in a serious injury or illness. However, the regulation in question is not binding upon the Commission.
Indeed,

it is not even relevant. Moreover, the fact that the operator
has tendered payment cannot preclude the Commission from acting in accordance with the governing statute.
In my opinion,
$20 is a nominal penalty which indicates a lack of gravity.
As already indicated, the Solicitor has told me nothing about
gravity, negligence, or any other factors which would enable
me to make an informed judgment as to proper penalty amounts
for these three citations.
The Act makes very clear that penalty proceedings before
the Commission are de novo. The Commission itself recently
recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in a proceeding before the Commission the amount of the penalty to be
assessed is a de novo determination based upon the six statutory criteria specified in section llO(i) of the Act and the
information relevant thereto developed in the course of the
adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC
287 (March 1983). Indeed, if this were not so, the Commission
would be nothing but a rubber stamp for the Secretary.
The fact that MSHA may have determined that this violation is not ''significant and substantial" as that term presently is defined by the Commission, is not determinative or
even relevant in these proceedings.
I agree with Administrative Law Judge Broderick that whether a cited violation is
checked as significant and substantial is per se irrelevant
to the determination of the appropriate penaltY-to be assessed.
United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983),
PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlements be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalties are justified and
settlements warranted.
Otherwise, this case will be assigned
and set down for hearing on the merits.

r

<

\

Jn
\~

Paul Merlin
Chief Administrative Law Judge

Distribution:
Darryl A. Stewart, Esq., Office of the Solicitor, U. S.
Department of Labor, 280 U.S. Courthouse, 801 Broadway,
Nashville, TN 37203 (Certified Mail)
Sheridan Booth, Superintendent, Abraxis Coal Co., Inc.,
General Delivery, Inez, KY 41224 (Certified Mail)

yh

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

20006

July 18, 1983
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 83-72-M
A. C. No. 36-03448-05502
Mercer Lime & Stone Co. Mine

v.
MERCER LIME & STONE COMPANY,
Respondent

PARTIAL APPROVAL AND PARTIAL DISAPPROVAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion to approve settlement
for the two violations involved in this matter.
The Solicitor submits a proposed settlement in the amount
of $48 for Citation No. 2007509 which was issued for a violation of 30 C.F.R. 56.9-22.
The inspector observed that a berm
was not provided for the outer bank of the elevated roadway
around the No. 1 and No. 2 ponds.
The Solicitor advises that
the operator demonstrated good faith efforts to abate the cited
condition by constructing a berm for the outer bank of the
elevated roadway around both ponds well within the time specified for abatement.
The proposed settlement is not large but
in view of the Solicitor's advice that the operator is small
and that it has a very small history of prior violations, I
will approve the recommended settlement for this item.
With respect to the second item which was issued for a
violation of 30 C.F.R. 56.11-1 when the inspector observed that
a safe means of access was not provided at the dust screws
under the cyclones, ·the Solicitor recommends a $20 penalty.
This proposed settlement is predicated solely upon section
100.4 of the regulations of the Mine Safety and Health Administration, 30 C.F.R. 100.4 which provides for the assessment
of a $20 single penalty for a violation which is not reasonably
likely to result in a reasonably serious injury or illness.
I am unable to approve the proposed $20 settlement.
In
my opinion, $20 is a nominal penalty which indicates a lack
of gravity.
A reading of the citation indicates that gravity
may well have been present.
In any event, I have been told
nothing about gravity or negligence so as to enable me to
make an informed judgment with respect to the proper penalty
amount for this citation.

"f •' '· I l (.
_J... •.• ' j \ }

The MSHA regulation in question is not binding upon the
Commission.
Indeed, it is not even relevant.
The Act makes
very clear that penalty proceedings before the Commission are
de nova.
The Commission itself recently recognized that it
is not bound by penalty assessment regulations adopted by the
Secretary but rather that in a proceeding before the Commission
the amount of the penalty to be assessed is a de nova determination based upon the six statutory criteria-Specified in
section llO(i) of the Act and the information relevant thereto
developed in the course of the adjudicative proceeding.
Sellersburg Stone Company, 5 FMSHRC 287 (March 1983). Indeed,
if this were not so, the Commission would be nothing but a
rubber stamp for the Secretary.
The fact that MSHA may have determined that this violation is not "significant and substantial" as that term presently is defined by the Commission, is not determinative or
even relevant in these proceedings.
I agree with Administrative
Law Judge Broderick that whether a cited violation is checked
as significant and substantial is per se irrelevant to the
determination of the appropriate penalty to be assessed.
United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983),
PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement with respect to Citation
2007509 be approved.
I will not issue an order directing the
operator to pay $48 for this citation until information is
submitted with respect to the other citation as set forth
immediately hereafter.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalty in settlement is
warranted for Citation No. 2007508.
If the Solicitor does
not do so, this case will be assigned and set down for hearing
on the merits.

~J_~~
.

yh

Paul Merlin
Chief Administrative Law Judge

Distribution:
Thomas A. Brown, Esq., Office of the Solicitor, U.S. Department
of Labor, Rm. 14480-Gateway Bldg., 3535 Market St., Philadelphia,
PA 19104 (Certified Mail)
James Christy, Foreman, Mercer Lime & Stone Co., P. 0. Box 4,
Branchton, PA 16021 (Certified Mail)

1r-,,.,·,
...L··- ...;O

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

20006

July 18, 1983
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 83-90
A. C. No. 36-04999-03501
Leslie Tipple Mine

v.
POWER OPERATING COMPANY, INC.,
Respondent

DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion for a decision and
order approving settlement in the amount of $20 for the one
violation involved in this matter.
The motion is predicated
solely upon section 100.4 of the regulations of the Mine
Safety and Health Administration, 30 C.F.R. § 100.4, which
provides for the assessment of a $20 single penalty for a
violation which MSHA believes is not reasonably likely to
result in a reasonably serious injury or illness.
The
violation was issued because a suitable backguard was not
provided for the vertical ladder that extended to the feeder
platform approximately 9 feet from ground level.
I am unable to approve the motion for settlement on the
basis of the present record.
In my opinion, $20 is a nominal
penalty which indicates a lack of gravity.
I note that the
inspector has checked Item 21 on the citation form to indicate
that the occurrence of the event against which the cited
standard directed was unlikely.
I also note that he has
checked Item 20 to indicate that negligence was low.
However,
I have been told nothing about the circumstances which led
the inspector to reach these conclusions, nor have I been
given any information about the other statutory factors
which would enable me to make an informed judgment as to
the proper penalty amount.
The Act makes very clear that penalty proceedings
before the Commission are de novo.
The Commission itself
--recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in
a proceeding before the Commission the amount of the penalty
to be assessed is a de novo determination based upon the six
statutory criteria specified in section llO(i) of the Act
and the information relevant thereto developed in the course
of the adjudicative,proceeding.
Sellersburg'Stone Company,
5 FMSHRC 287 (March 1983).
Indeed, if this were not so, the
Commission would be nothing but a rubber stamp for the
Secretary.

1 "q d1

-1...-...u\J

The fact that MSHA may have determined that this violation is not "signi£icant and substantial" as that term presently is defined by the Commission, is not determinative or
even relevant in these proceedings.
I agree with Administrative Law Judge Broderick that whether a cited violation is
checked as significant and substantial is per se irrelevant
to the determination of the appropriate penaltY-to be assessed.
United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983),
PDR granted June 22, 1983.
The MSHA regulation in question is not binding upon the
Commission.
Indeed, it is not even relevant.
Moreover, the
fact that the operator has tendered payment cannot preclude
the Commission from acting in accordance with the governing
statute.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalty is justified and
settlement warranted.
Otherwise, this case will be assigned
and set down for hearing on the merits.

~~~~

Paul Merlin
Chief Administrative Law Judge

Distribution:
William M. Connor, Esq., Office of the Solicitor, U. S.
Department of Labor, Rm. 14480-Gateway Bldg., 3535 Market
St., Philadelphia, PA 19104 (Certified Mail)
Larry Kanour, Supt., Power Operating Co., Inc., P. 0. Box 684,
Philipsburg, PA 16866 (Certified Mail)

i

Ir;.

w;_ {.._~,:

"

I.

j '. . ::

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

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

20006

July 18, 1983
CIVIL PENALTY PROCEEDING
Docket No. VA 83-29
A. C. No. 44-05340-03508
No. 1 Mine

v.
D. L. & P. COAL CO., INC.,
Respondent

DENIAL OF MOTION TO WITHDRAW PETITION
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Secretary has moved to withdraw his petition for
the assessment of civil penalties for the 11 citations
involved in this matter.
The Solicitor states that the
operator has paid $20 each for the 11 proposed penalties or
a total of $220.
The Solicitor further states that the
citations did not cause an imminent danger nor did they
significantly and substantially contribute to a coal mine
safety or health hazard.
He stated that these violations
were not reasonably likely to result in a reasonably serious
injury or illness and were abated within the time set by the
inspector and that in addition the employer demonstrated
good faith in abating these violations and has a relatively
good history of complying with the requirements of the Act.
The 11 violations were issued for a variety of conditions
including ventilation and dust violations, inadequate temporary splices, lack of guarding, improperly installed fire
outlets on a water line, permissibility violations, and
improperly located battery-charging stations.
In my opinion,
$20 is a nominal penalty which indicates a lack of gravity.
With respect to these 11 violations, I have been told nothing
about gravity, negligence, or any of the other statutory
factors sufficient to enable me to make an informed judgment
as to proper penalty amounts.
The assessment sheet indicates that the $20 penalties
in this matter are the so-called "single penalty assessments"
made pursuant to section 100.4 of the regulations of the Mine
Safety and Health Administration, 30 C.F.R. § 100.4, which
provides for the assessment of a $20 single penalty for a
violation which MSHA believes is not reasonably likely to
result in a reasonably serious injury or illness.

1301

The MSHA regulation in question is not binding upon the
Commission.
Indeed, it is not even relevant.
Moreover, the
fact that the operator has tendered payment cannot preclude
the Commission from acting in accordance with the governing
statute.
The Act makes very clear that penalty proceedings before
the Commission are de novo.
The Commission itself recently
recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in a proceeding
before the Commission the amount of the penalty to be assessed
is a de novo determination based upon the six statutory criteria ---Specified in section llO(i) of the Act and the information
relevant thereto developed in the course of the adjudicative
proceeding.
Sellersburg Stone Company, 5 FMSHRC 287 (March
1983).
Indeed, if this were not so, the Commission would be
nothing but a rubber stamp for the Secretary.
The fact that MSHA may have determined that this violation
is not "significant and substantial" as that term presently
is defined by the Commission, is not determinative or even
relevant in these proceedings.
I agree with Administrative
Law Judge Broderick that whether a cited violation is checked
as significant and substantial is per se irrelevant to the
determination of the appropriate penalty to be assessed.
United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983),
PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion to withdraw be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine appropriate penalty amounts for the 11 citations.
Otherwise, this case will be assigned and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge

Distribution:
Jonathan M. Kronheim, Esq., Office of the Solicitor, U. S.
Department of Labor, 4015 Wilson Blvd., Rm. 1237A, Arlington,
VA 22203 (Certified Mail)
Ronnie Lester, D. L. & P. Coal Company, P. O. Box 143,
Birchleaf, VA 24220 (Certified Mail)

13 Uu
~"

yh

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

July 18, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 83-63
A. C. No. 46-05793-03505
No. 14 Mine

ENERGY COAL CORPORATION,
Respondent
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion for a settlement
approval for the two citations involved in this matter.
The
original assessments totaled $148 and the proposed settlements are for $20 apiece.
This motion is predicated solely upon section 100.4 of
the regulations of the Mine Safety and Health Administration,
30 C.F.R. 100.4, which provides for the assessment of a $20
single penalty for a violation which MSHA believes is not
reasonably likely to result in a reasonably serious injury
or illness.
The Solicitor attaches to his motion copies of
modifications to the subject citations deleting the "significant and substantial" description. On this basis he seeks
approval of the so-called "single penalty assessment".
The first violation was issued for accumulation of combustible materials, creating fire hazards.
The second citation was issued for an unguarded drive chain and sprockets
on a wall drill.
The inspector indicated that negligence in
both cases was moderate and that occurrence was reasonably
likely.
I am unable to approve the motion for settlements
on the basis of the present record. In my opinion, $20 is a
nominal penalty which indicates a lack of gravity.
From the
face of the two citations, and based upon the inspector's
statements, it appears that the violations were serious and
that the operator was negligent.
Under such circumstances,
a nominal penalty would not be warranted. See Orders Rejecting Proposed Settlement issued by Administrative Law Judge
George A. Koutras in Glen Irvan Corporation, PENN 82-23
(April 4, 1983) and PENN 82-25 (April 6, 1983).
The MSHA "single penalty assessment" regulation is not
binding upon the Commission. Indeed, it is not even relevant.
Certainly the fact that the operator has agreed to tender

payment cannot preclude the Commission from acting in accordance with the governing statute.
The Act makes very clear that penalty proceedings before
the Commission are de novo.
The Commission itself recently
recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in a proceeding
before the Commission the amount of the penalty to be assessed
is a de novo determination based upon the six statutory criteria -Specified in section llO(i) of the Act and the information relevant thereto developed in the course of the adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC 287
(March 1983). Indeed, if this were not so, the Commission
would be nothing but a rubber stamp for the Secretary.
The fact that MSHA may have determined that this violation is not "significant and substantial'' as that term presently is defined by the Commission, is not determinative or
even relevant in these proceedings.
I agree with Administrative Law Judge Broderick that whether a cited violation is
checked as significant and substantial is per se irrelevant
to the determination of the appropriate penaltY:-to be assessed.
United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983),
PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlements be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalties are justified
and settlements warranted. Otherwise, this case will be
assigned and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge

1305

Distribution:
Thomas A. Brown, Esq., Office of the Solicitor, U.S. Department
of Labor, Rm. 14480-Gateway Bldg., 3535 Market St., Philadelphia,
PA 19104 (Certified Mail)
Donald McConnell, Director of Safety and Training, Energy Coal
Corporation, P. O. Box 72, Paintsville, KY 41240 (Certified
Mail)

'Jn r:
1 vvO
yh

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

20006

July 19, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 82-107
A.C. No. 03-01384-03020

v.
J & B No. 1 Mine
R & S COAL COMPANY, INC.,
Respondent
PARTIAL APPROVAL AND PARTIAL DISAPPROVAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion to approve settlements
for the two violations involved in this matter. The original
assessments for the violations totaled $56. The proposed
settlement totals $40.
Citation No. 1025373 was issued for failure to provide
potable drinking water.
I find this a nonserious violation
on its face.
The Solicitor advises that the operator
exhibited a low degree of negligence.
The Solicitor proposes
a penalty of $20. Accordingly, I accept the proposed settlement.
Citation No. 1025375 was issued for failure to keep
walkways free of extraneous materials. The Solicitor
advises that negligence was low and proposes a reduction in
penalty from $28 to $20.
In my opinion, $20 denotes a lack
of gravity.
In this instance, the citation states that a
stumbling and slipping hazard existed. This violation
appears serious on the face of the citation. Therefore,
although I have not overlooked the operator's small size
and small history, I cannot approve the proposed settlement
on the basis of the information submitted to date.
The Solicitor also advises that this citation was not
"significant and substantial." It appears that the proposal
to settle the citation for $20 was done as the result of the
so-called "single penalty assessment" which is set forth in
section 100.4 of the regulations of the Mine Safety and
Health Administration, 30 C.F.R. § 100.4 which provides for

130'1

the assessment of a $20 single penalty for a violation MSHA
believes is not reasonably likely to result in a reasonably
serious injury or illness. This regulation is not binding
upon the Commission and is not a basis upon which I could
approve a settlement.
The Act makes very clear that penalty proceedings
before the Commission are de novo.
The Commission itself
recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in
a proceeding before the Commission the amount of the penalty
to be assessed is a de novo determination based upon the six
statutory criteria specified in section llO(i) of the Act
and the information relevant thereto developed in the course
of the adjudicative proceeding. Sellersburg Stone Company,
5 FMSHRC 287 (March 1983).
Indeed, if this were not so, the
Commission would be nothing but a rubber stamp for the
Secretary.
The fact that MSHA may have determined that this
violation is not ''significant and substantial" as that term
presently is defined by the Commission, is not determinative
or even relevant in this proceeding.
I agree with Administrative Law Judge Broderick that whether a cited violation
is checked as significant and substantial is per se irrelevant
to the determination of the appropriate penalty tO-be
assessed.
United States Steel Mining Co., Inc., 5 FMSHRC
934 (May 1983), PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
I wil~ not order payment of the settlement amount for
Citation No. 1025373 pending final disposition of Citation
No. 1025375.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me

1308

to determine whether the proposed penalty for Citation
No. 1025375 is justified and settlement warranted.
Otherwise, this case will be assigned and set down for hearing on
the merits.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Jack F. Ostrander, Esq., Office of the Solicitor, u. S.
Department of Labor, 555 Griffin Square Building, Dallas, TX
75202
(Certified Mail)
Mr. Rick Brown, R & S Coal Company, Inc., P. 0. Box 468,
Lamar, AR 72846
(Certified Mail)

/ln

1303

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

July 19, 1983
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 83-53
A. C. No. 12-01897-03501
Arlen No. 1 Mine

v.
BLACK BEAUTY COAL COMPANY,
INC.,
Respondent

DENIAL OF MOTION TO WITHDRAW PROPOSAL FOR PENALTY
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion to withdraw his petition
for civil penalties for the 8 violations involved· in this
matter. As grounds for this motion, the Solicitor recites
that he has received a check from the operator in the amount
of $160 in full payment for the 8 penalties. The Solicitor
further states that the operator has represented that it desires to withdraw its contest of the proposed penalties and
that the full payment of these penalties is a satisfactory and
appropriate resolution of this controversy. The citations
were issued for a variety of conditions, including lack of
audible warning devices, lack of seat belts, and inoperative
parking brakes on various types of equipment.
The Solicitor does not refer to any MSHA regulations in
support of his motion but rather relies upon the operator's
payment, its wish to withdraw its contest, and the allegation
that the payment already made is a satisfactory and appropriate resolution of this matter.
It appears from the assessment
sheet that all of these violations were so-called "single
penalty assessments''. Such assessments are made pursuant to
section 100.4 of the regulations of the Mine Safety and Health
Administration, 30 C.F.R. § 100.4, which provides for the
assessment of a $20 single penalty for a violation which MSHA
believes is not reasonably likely to result in a reasonably
serious injury or illness.
I am unable to approve the motion to withdraw on the
basis of the present record.
In my opinion, $20 is a nominal
penalty which indicates, among other things, a lack of gravity.
I have been told nothing about gravity, negligence, or any of
the other statutory factors which would enable me to make an
informed judgment as to proper penalty amounts for these citations. Certainly, each citation on its face does not indicate
a lack of gravity.

1310

The MSHA regulation in question is not binding upon the
Corrunission.
Indeed, it is not even relevant. Moreover, the
fact that the operator has tendered payment cannot preclude
the Corrunission from acting in accordance with the governing
statute.
The Act makes very clear that penalty proceedings before
the Corrunission are de novo. The Corrunission itself recently
recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in a proceeding
before the Corrunission the amount of the penalty to be assessed
is a de novo determination based upon the six statutory criteria -Specified in section llO(i) of the Act and the information relevant thereto developed in the course of the adjudicative proceeding.
Sellersburg Stone Comoany, 5 FMSHRC 287
(March 1983).
Indeed, if this were not so, the Corrunission
would be nothing but a rubber stamp for the Secretary.
The fact that MSHA may have determined that this violation
is not "significant and substantial" as that term presently is
defined by the Corrunission, is not determinative or even relevant in these proceedings.
I agree with Administrative Law
Judge Broderick that whether a cited violation is checked as
significant and substantial is per se irrelevant to the determination of the appropriate penalty~o be assessed.
United
States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983), PDR
granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Corrunission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion to withdraw be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalties are justified and
settlements warranted.
Otherwise, this case will be assigned
and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge

1311

Distribution:
Mark A. Holbert, Esq., Office of the Solicitor, u. S. Department
of Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)
T. C. Chambers, Safety Director, Black Beauty Coal Co.,
Inc., R.R. #1, Box 133, Plainville, IN 47568 (Certified
Mail)

..

r'1 -"4

.-··~

l.01.~

yh

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

July 19, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 82-326
A. C. No. 36-03554-03501
Crescent Mine

v.
CRESCENT HILLS COAL COMPANY,
INC.,
Respondent

DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion to approve settlements
for the 12 violations involved in this case. Based upon the
present record, I am unable to approve the motion.
Nine of the violations carry proposed penalty settlements
ranging from $74 to $158. The Solicitor does not discuss
these violations individually.
Rather in a summary paragraph
he states that all of them were serious, that the operator's
negligence ranged from ordinary to moderately high, and that
all were abated within the time set by the inspectors.
I
have been given no information about the operator's size,
prior history and ability to continue in business. The
proposed settlements may be appropriate but since I do not
have complete information, I cannot act in accordance with
all statutory criteria set forth in section llO(i) of the
Act.
I recognize that the proposed settlements are for the
originally assessed amounts but this is not determinative.
The Solicitor must furnish the required information.
The Solicitor proposes settlements for the remaining
three violations in the amounts of $20 apiece.
These proposed
settlements are predicated solely upon section 100.4 of the
regulations of the Mine Safety and Health Administration, 30
C.F.R. 100.4 which provides for the assessment of a $20 single
penalty for a violation which is not reasonably likely to result in a reasonably serious injury or illness~
I am unable to approve the motion for the $20 settlements.
In my opinion, $20 is a nominal penalty which indicates a lack
of gravity. With respect to these three violations, I have
been told nothing about gravity, negligence, or any other factors which would enable me to make an informed judgment· as
to proper penalty amounts for these items.
The MSHA regulation
in question is not binding upon the Commission.
Indeed, it

1313

is not even relevant. Moreover, the fact that the operator
has tendered payment cannot preclude the Commission from
acting in accordance with the governing statute.
The Act makes very clear that penalty proceedings
before the Commission are de novo.
The Commission itself
recently recognized that it is not bound by penalty assessment
regulations adopted by the Secretary but rather that in a proceeding before the Commission the amount of the penalty to be
assessed is a de novo determination based upon the six statutory criteria specified in section llO(i) of the Act and the
information relevant thereto developed in the course of the
adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC
287 (March 1983). Indeed, if this were not so, the Commission
would be nothing but a rubber stamp for the Secretary.
The fact that MSHA may have determined that this vio.1.
lation is not "significant and substantial" as that terci
presently is defined by the Commission, is not determinative
or even relevant in these proceedings.
I agree with Administrative Law Judge Broderick that whether a cited violation
is checked as significant and substantial is per se irrelevant
to the determination of the appropriate penalty tO-be assessed.
United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983),
PDR granted June 22, 1983.
Regardless of the Secretary's
regulations, once this Commission's jurisdiction attaches we
have our own statutory responsibilities to fulfill and discharge.
This can only be done on the basis of an adequate
record.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlements be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalties are justified
and settlements warranted. Otherwise, this case will be
assigned and set down for hearing on the merits.

-Chief Administrative Law Judge

1314

Distribution:
David E. Street, Esq., Office of the Solicitor, U. s. Department
of Labor, Rm. 14480-Gateway Bldg., 3535 Market St., Philadelphia,
PA 19104 (Certified Mail)
Melvin E. Peluchette, Vice President, Crescent Hills Coal
Company, Inc., 408 Millcraft Center, Washington, PA 15301
(Certified Mail)

yh

1315

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

July 19, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 83-67
A.C. No. 36-02713-03501 B43

v.
Frenchtown Strip Mine
ANSCO, INCORPORATED,
Respondent
PARTIAL DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion to approve settlements for
the three violations involved in this matter.
The proposed
settlements are for the originally assessed amounts. Two violations
were assessed at $20 apiece and one violation was assessed at $98.
While the motion for settlement contains sufficient information to approve settlement of the $98 violation, there is little
information regarding the two $20 violations.
In my opinion, $20
denotes a lack of gravity.
However, the $20 violations are for
lack of insulated bushings and proper fittings for power wires in
a generator and lack of non-conductive material at a circuit box.
The inspector has checked boxes on the citations which indicate
that negligence was low and an accident was unlikely to occur in
each case.
I cannot approve a settlement on the basis of checks
in boxes because no reasons are given for the bare conclusions
represented by the checks.
The Solicitor advises that the two violations which are
assessed at $20 each were done so as the result of the so-called
"single penalty assessment'' which is set forth in section 100.4
of the regulations of the Mine Safety and Health Administration,
30 C.F.R. § 100.4 which provides for the assessment of a $20 single
penalty for a violation MSHA believes is not reasonably likely to
result in a reasonably serious injury or illness.
This regulation
is not binding upon the Commission and is not a basis upon which I
could approve a settlement.
The Act makes very clear that penalty proceedings before the
Commission are de novo.
The Commission itself recently recognized
th~t it is not bound by penalty assessment regulations adopted by
the Secretary but rather that in a proceeding before the Commission
the amount of the penalty to be assessed is a de novo determination
based upon the six statutory criteria specifiecr-in-section llO(i)

of the Act and the information relevant thereto developed in the
course of the adjudicative proceeding. Sellersburg Stone Company,
5 FMSHRC 287 (March 1983). Indeed, if this were not so, the
Commission would be nothing but a rubber stamp for the Secretary.
The fact that MSHA may have determined that these violations
are not ''significant and substantial" as that term presently is
defined by the Commission, is not determinative or even relevant
in this proceeding.
I agree with Administrative Law Judge Broderick
that whether a cited violation is checked as significant and substantial is per se irrelevant to the determination of the appropriate penalty tO-be assessed. United States Steel Mining Co., Inc.,
5 FMSHRC 934 (May 1983), PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge. This can only be done
on the basis of an adequate record.
I approve of the settlement of the $98 violation but will
not direct payment until information is furnished for the two
$20 violations.
ORDER
In light of the foregoing, it is Ordered that the Solicitor's
motion for settlement be Denied.
It is further Ordered that within 30 days from the date of
this order the Solicitor file information adequate for me to
determine whether the proposed $20 penalties for the two citations
discussed above are justified and settlement warranted. Otherwise,
this case will be ass~~wn for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge
Distribution:
William M. Connor, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Ansco, Incorporated, P.O. Box 4371, 901 Neubling Ave.,
Evansville, IN 47711 (Certified Mail)

/fb

1317

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

July 19, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL P~ALTY PROCEEDING
Docket No. SE 82-60
A.C. No. 40-00650-03501
No. 4 Surface Mine

DEAN COAL COMPANY,
Respondent
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
In accordance with what now is apparently becoming standard
practice, the Solicitor has filed a motion for settlement in the
amount of $20 for the one violation involved in this matter. The
motion is predicated solely upon section 100.4 of the regulations
of the Mine Safety and Health Administration, 30 C.F.R. § 100.4
which provides for the assessment of a $20 penalty for a violation
which is not reasonably likely to result in a reasonably serious
injury or illness.
In my opinion, $20 indicates a lack of gravity.
The citation was issued for the use of a refuse truck with an
inoperative automatic reverse warning device.
I cannot say the
violation appears to be nonserious on the face of the citation.
In any event, I have been told nothing by the Solicitor about
gravity or negligence or any other of the statutory factors which
would enable me to make an informed judgment as to the proper
penalty for this violation.
I am unable to grant the Solicitor's motion on the basis of
the present record.
The Act makes very clear that penalty proceedings before the Commission are de novo.
The Commission itself
recently recognized that it is not bound by penalty assessment
regulations adopted by the Secretary but rather that in a proceeding before the Commission the amount of the penalty to be assessed
is a de novo determination based upon the six statutory criteria
specified in section llO(i) of the Act and the information relevant
thereto developed in the course of the adjudicative proceeding.
Sellersburg Stone Company, 5 FMSHRC 287 (March 1983). Indeed, if
this were not so, the Commission would be nothing but a rubber stamp
for the Secretary.
The fact that MSHA may have determined that this violation
is not "significant and substantial" as that term presently is
defined by the Commission, is not determinative or even relevant

1313

in this proceeding.
I agree with Administrative Law Judge Broderick
that whether a cited violation is checked as significant and substantial is per se irrelevant to the determination of the appropriate penalty tO-be assessed. United States Steel Mining Co., Inc.,
5 FMSHRC 934 (May 1983), PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be done
on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the Solicitor's
motion for settlement be Denied.
It is further Ordered that within 30 days from the date of
this order the Solicitor file information adequate for me to
determine whether the proposed penalty is justified and settlement
warranted.
Otherwise, this case will be assigned and set down for
hearing on the merits. ~---~r~~-....~-

~
C.---+--\
Paul Merlin
Chief Administrative Law Judge
Distribution:
Carole M. Fernandez, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203
(Certified Mail)
Mr. Ralph M. Ross, President, Dean Coal Company, 4912 Westover
Terrace S.E., Knoxville, TN 37914 (Certified Mail)

/fb

1319

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

July 19, 1983

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

CIVIL PENALTY PROCEEDING
Docket No. VA 83-18
A.C. No. 44-00294-03516
No. 1 Mine

EASTOVER MINING COMPANY,
Respondent
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has submitted a motion to withdraw his
petition for the assessment of civil penalty on the ground
that the operator has agreed to payment of the proposed
penalties in full.
The motion must be denied.
This case involves three citations.
The first item is a Section 104(d) order, 00930034,
which was subsequently modified to a Section 104(a) citation.
According to the Solicitor after MSHA review it was determined that the violation involved no reasonable likelihood
of a reasonably serious injury occurring. On this basis the
Solicitor proposes a "single penalty assessment" of $20.
This penalty amount apparently is predicated upon section
100.4 of the regulations of the Mine Safety and Health
Administration, 30 C.F.R. § 100.4 which provides for the
assessment of a $20 single penalty for a violation which
MSHA believes is not reasonably likely to result in a
reasonably serious injury or illness.
In my opinion, $20 is a nominal penalty which indicates
a lack of gravity.
It may be that this violation was nonserious, but I have been told nothing by the Solicitor about
gravity or negligence or any of the other statutory factors
which would enable me to make an informed judgment as to a
proper penalty for this violation. The violation which was
cited for a failure to lock out and tag a disconnecting
device was said by the inspector in a modification to involve no negligence or gravity, but the inspector gave no
reasons.
I cannot accept this.

1 Vf..,'.).O
<)

The MSHA regulation in question is not binding upon the
Commission.
Indeed, it is not even relevant. The Act makes
very clear that penalty proceedings before the Commission
are de novo.
The Commission itself recently recognized that
it iS-not bound by penalty assessment regulations adopted by
the Secretary but rather that in a proceeding before the
Commission the amount of the penalty to be assessed is a
de novo determination based upon the six statutory criteria
specified in section llO(i) of the Act and the information
relevant thereto developed in the course of the adjudicative
proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March
1983). Indeed, if this were not so, the Commission would be
nothing but a rubber stamp for the Secretary.
The fact that MSHA may have determined that this violation is not ''significant and substantial" as that term
presently is defined by the Commission, is not determinative
or even relevant in these proceedings.
I agree with Administrative Law Judge Broderick that whether a cited violation
is checked as significant and substantial is per se irrelevant
to the determination of the appropriate penalty t~be assessed.
United States Steel Mining Co., Inc., 5 FMSHRC 934 (May
1983), PDR granted June 22, 1983. Regardless of the Secretary's regulations, once this Commission's jurisdiction
attaches we have our own statutory responsibilities to
fulfill and discharge.
This can only be done on the basis
of an adequate record.
The Solicitor further advises that a penalty of $136
has been proposed by MSHA for the next item which was a
104(d) order, 00932049, involving a roof violation under
30 C.F.R. § 75.200. The Solicitor, however, gives no discussion of the subject condition and, as already pointed
out, this ~s a de novo proceeding in which the original
assessment amount is not in any way determinative. The
inspector said in a modification that negligence was high
and occurrence of the event reasonably likely. The inspector gave no reasons, but even his bare conclusions cast
some doubt upon a $136 penalty.
The same is true of the third item which is a section
104(d) (2) order, 00931995, alleging a violation of 30 C.F.R.
§ 75.1725.
For this item the Solicitor advises that MSHA
has proposed a penalty of $275. However, beyond stating
the bare conclusion that the operator exhibited a high

1321

degree of negligence and that the violation was significant
and substantial, the Solicitor gives no basis for approval
of this amount.
I cannot accept bare conclusions which have
no supporting rationale.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion to withdraw be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalties are justified and
settlements warranted.
Otherwise, this case will be assigned
and set down for hearing on the merits.

-Paul Merlin
Chief Administrative Law Judge
Distribution:
Leo J. McGinn, Esq., Office of the Solicitor, u. S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Eastover Mining Company, General Delivery, Brookside, KY
40801
(Certified Mail)

/ln

1322

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

July 19, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 82-208-M
A.C. No. 02-00151-05501

v.
San Manuel Mine
MAGMA COPPER COMPANY,
Respondent
DENIAL OF MOTION TO WITHDRAW
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion to withdraw based on
full payment of the original assessment of the one violation
involved in this matter. The citation was assessed at $20.
The Solicitor, however, has given me no basis to
approve the proposed settlement. There is no analysis of
why $20 is an appropriate penalty for the violation. The
Solicitor merely states that the operator has paid the
originally assessed amount and has filed for a modification
of the cited standard.
The citation is for failure to
properly bush insulated wires extending out of three
junction boxes.
I cannot find a lack of gravity on the
face of the subject citation. I have not overlooked the
statements in the motion to withdraw that the only issue
presented is whether a strain relief clamp is the equivalent
of the bushing requirement in the standard and that the
operator has filed a petition for modification on this
·question. However, I have not been specifically told
whether a clamp was used here and if it was, whether such
use rendered the violation nonserious.
It appears from the assessment sheet that the one
violation which was assessed at $20 was done so as the
result of the so-called "single penalty assessment" which
is set forth in section 100.4 of the regulations of the
Mine Safety and Health Administration, 30 C.F.R. § 100.4
which provides for the assessment of a $20 single penalty
for a violation MSHA believes is not reasonably likely to
result in a reasonably serious injury or illness.
This .
regulation is not binding upon the Commission and is not
a basis upon which I could approve a settlement.

1323

The Act makes very clear that penalty proceedings before the
Commission are de novo. The Commission itself recently recognized
that it is not bound by penalty assessment regulations adopted by
the Secretary but rather that in a proceeding before the Commission
the amount of the penalty to be assessed is a de novo determination
based upon the six statutory criteria specifiecr-in section llO(i)
of the Act and the information relevant thereto developed in the
course of the adjudicative proceeding. Sellersburg Stone Company,
5 FMSHRC 287 (March 1983). Indeed, if this were not so, the
Commission would be nothing but a rubber stamp for the Secretary.
The fact that MSHA may have determined that this violation is
not "si~nificant and substantial" as that term presently is defined
by the Commission, is not determinative or even relevant in this
proceeding.
I agree with Administrative Law Judge Broderick that
whether a cited violation is checked as significant and substantial
is per se irrelevant to the determination of the appropriate penalty
to be assessed. United States Steel Mining Co., Inc., 5 FMSHRC 934
(May 1983), PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be done
on the basis of an adequate record.
ORDER
In light of the foregoing, it is Ordered that the Solicitor's
motion be Denied.
It is further Ordered that within 30 days from the date of
this order the Solicitor file information adequate for me to
determine whether the proposed penalty is justified and withdrawal
based upon an appropriate payment warranted. Otherwise, this case
will be assigned and set down for hearing on the merits.
F

&£&aol

Distribution:
Theresa Fay Bustillos, Esq., Office of the Solicitor, U.S.
Department of Labor, 11071 Federal Building, 450 Golden Gate
Avenue, Box 36017, San Francisco, CA 94102 (Certified Mail)
N. Douglas Grimwood, Esq~, Twitty, Sievwright & Mills,
1700 TowneHouse Tower, 100 West Clarendon, Phoenix, AZ 85013
(Certified Mail)

/fb

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

20006

July 19, 1983
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 83-30-M
A.C. No. 48-00715-05501
Casper Gravel Pit

CASPER CONCRETE COMPANY,
Respondent
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The parties have filed a motion to approve settlements
for the seven violations involved in this matter. The proposed settlements are for the originally assessed amounts.
Six violations were assessed at $20 apiece and one violation
was assessed at $98.
The motion for settlement approval contains no discussion
whatsoever regarding any of the alleged violations.
Rather
the motion merely states that the Secretary agrees with and
relies upon MSHA's evaluation of the statutory criteria and
concludes:
WHEREFORE, the parties pray that the
proposed penalties be approved, respondent be
granted leave to withdraw its contest to the
penalties as proposed by the agency, and an
order be entered requiring respondent to pay
the proposed penalties within forty days of
the filing of an order approving the penalties.
Although the Secretary may be willing to rely upon
MSHA's evaluation of the statutory criteria, this Commission
most certainly cannot do so without violating its statutory
mandate.
In my opinion, $20 is a nominal penalty which
denotes a lack of gravity. A reading of these citations
indicates that at least on their face the possibility that
some degree of gravity may have been present.
I have been
told nothing about any of the other six statutory criteria.

1325

The $20 "single penalty assessments" are obviously
predicated upon section 100.4 of the regulations of the Mine
Safety and Health Administration, 30 C.F.R. § 100.4 which
provides for the assessment of a $20 single penalty for a
violation MSHA believes is not reasonably likely to result
in a reasonably serious injury or illness. These regulations
are not binding upon the Commission and indeed are not even
relevant in these proceedings.
The Act makes very clear that penalty proceedings
before the Commission are de nova. The Commission itself
recently recognized that it is not bound by penalty assessment
regulations adopted by the Secretary but rather that in a
proceeding before the Commission the amount of the penalty
to be assessed is a de novo determination based upon the six
statutory criteria specified in section llO(i) of the Act
and the information relevant thereto developed in the course
of the adjudicative proceeding. Sellersburg Stone Company,
5 FMSHRC 287 (March 1983). Indeed, if this were not so, the
Commission would be nothing but a rubber stamp for the
Secretary.
~

~~

The fact that MSHA may have determined that these
violations are not "significant and substantial'' as that
term presently is defined by the Commission, is not determinative or even relevant in these proceedings.
I agree
with Administrative Law Judge Broderick that whether a cited
violation is checked as significant and substantial is
per se irrelevant to the determination of the appropriate
penalty to be assessed. United States Steel Mining Co.,
Inc., 5 FMSHRC 934 (May 1983), PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge. This can only be
done on the basis of an adequate record.
Moreover, I cannot approve the $98 settlement for the
remaining violation. This citation was issued for a failure
to ground a wire in violation of section 56.12-25. On the
citation form the inspector indicated occurrence of the
feared event was reasonably likely, injury could be fatal
and negligence was moderate.
I do not believe I can predicate approval or disapproval of a proposed settlement on
nothing more than boxes checked by an inspector. But I
note that these checks, without more, indicate that the
proposed $98 penalty would be too low.

1326

ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalties are justified
and settlement warranted.
Otherwise, this case will be
assigned and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge
Distribution:
James H. Barkley, Esq., Office of the Solicitor, u. s.
Department of Labor, 1585 Federal Building, 1961 Stout
Street, Denver, CO 80294
(Certified Mail)
Eugene A. Lalonde, Esq., Casper Concrete Company, P. O.
Box 30238, Billings, MT 59107
(Certified Mail)

/ln

1327

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

July 26, 1983

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 83-24
A.C. No. 41-02867-03502
Thurber Coal Mine

THURBER COAL COMPANY,
Respondent
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The parties have filed a motion to approve settlement
for the seven violations involved in this matter. The proposed settlement is for the originally assessed amount. Six
violations were assessed at $68 apiece and one violation was
assessed at $20.
The motion for settlement contains no discussion or
analysis regarding the factual circumstances of the alleged
violations. No information is given regarding gravity or
negligence. The inspector checked various boxes on the
citation forms indicating his opinion regarding levels of
negligence and gravity but as I have indicated in other
cases I cannot rely upon these "checks" as a basis for
settlement approval when the Solicitor does not explain what
the checks mean.
I recognize that the Solicitor's motion
sets forth that in the 24 months prior to the inspection the
operator was inspected 29 times and received 14 assessed
violations. The motion further advises that payment of the
proposed penalties will not impair the operator's ability to
continue in business. However, in addition to being given
insufficient advice about gravity and negligence, no information is given by the Solicitor regarding size and good
faith abatement.
I am unable to determine whether the
proposed settlement amounts are appropriate.
With respect to the one proposed settlement amount of
$20, I further make the following observations. This proposed settlement is a "single penalty assessment" apparently

1328

predicated upon section 100.4 of the regulations of the Mine
Safety and Health Administration, 30 C.F.R. § 100.4 which
provides for the assessment of a $20 single penalty for a
violation MSHA believes is not reasonably likely to result
in a reasonably serious injury or illness.
This regulation
is not binding upon the Commission and is not a basis upon
which I could approve a settlement.
The Act makes very clear that penalty proceedings
before the Commission are de nova.
The Commission itself
recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in
a proceeding before the Commission the amount of the penalty
to be assessed is a de nova determination based upon the six
statutory criteria specified in section llO(i) of the Act
and the information relevant thereto developed in the course
of the adjudicative proceeding.
Sellersburg Stone Company,
5 FMSHRC 287 (March 1983).
Indeed, if this were not so, the
Commission would be nothing but a rubber stamp for the
Secretary.
The fact that MSHA may have determined that this
violation is not "significant and substantial" as that term
presently is defined by the Commission, is not determinative
or even relevant in this proceeding.
I agree with Administrative Law Judge Broderick that whether a cited violation
is checked as significant and substantial is per se irrelevant
to the determination of the appropriate penalty tO-be assessed.
United States Steel Mining Co., Inc., 5 FMSHRC 934 (May
1983), PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge.
This can only be
done on the basis of an adequate record.
Finally, the fact of payment by the operator is not
determinative of the Commission's duties and obligations in
this matter.

1329

ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalties are justified
and settlement warranted.
Otherwise, this case will be
assigned and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Jack F. Ostrander, Esq., Office of the Solicitor, U. S.
Department of Labor, 555 Griffin Square Building, Dallas, TX
75202
(Certified Mail)
Mr. Bobby Williams, Thurber Coal Company, P. O. Box 400,
Arlington, TX 76010
(Certified Mail)

/ln

13~30

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

20006

July 26, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 83-183
A.C. No. 46-05806-03505
No. 3 Mine

MAIDEN MINING COMPANY,
Respondent
PARTIAL APPROVAL AND PARTIAL DISAPPROVAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion to approve settlement
for the four violations involved in this matter. The proposed settlement is for the originally assessed amounts.
Three violations were assessed at $20 apiece and one violation
was assessed at $126. The operator has already tendered
payment of $186.
Citation No. 2122147 was issued because a disconnect
plug was not marked for identification. The violation was
serious and the operator was moderately negligent. The
Solicitor proposes to settle this violation for the original
assessment of $126.
I accept the Solicitor's representations.
The Solicitor proposes to settle the other three
citations for the original assessments of $20 apiece.
In
my opinion, $20 is a nominal penalty which denotes a lack of
gravity. The three citations involve accumulations of coal
and coal dust, and permissibility violations. A reading of
these citations indicates on their face the possibility that
some degree of gravity may have been present. The Solicitor
provides no information about the gravity or negligence
involved in these citations. I cannot approve these proposed
settlements on the basis of the information submitted to date.
The $20 "single penalty assessments" were obviously
predicated upon section 100.4 of the regulations of the Mine
Safety and Health Administration, 30 C.F.R. § 100.4 which
provides for the assessment of a $20 single penalty for a

1331

violation MSHA believes is not reasonably likely to result
in a reasonably serious injury or illness. This regulation
is not binding upon the Commission and is not a basis upon
which I could approve a settlement.
The Act makes very clear that penalty proceedings
before the Commission are de novo. The Commission itself
recently recognized that itisnot bound by penalty assessment
regulations adopted by the Secretary but rather that in a
proceeding before the Commission the amount of the penalty
to be assessed is a de novo determination based upon the six
statutory criteria specified in section llO(i) of the Act
and the information relevant thereto developed in the course
of tne adjudicative proceeding. Sellersburg Stone Company,
5 FMSHRC 287 (March 1983). Indeed~ if this were not so, the
Commission would be nothing but a rubber stamp for the
Secretary.
The fact that MSHA may have determined that these
violations are not "significant and substantial" as that
term presently is defined by the Commission, is not determinative or even relevant in this proceeding.
I agree with
Administrative Law Judge Broderick that whether a cited
violation is checked as significant and substantial is
per se irrelevant to the determination of the appropriate
penalty to be assessed. United States Steel Mining Co.,
Inc., 5 FMSHRC 934 (May 1983), PDR granted June 22, 1983.
Regardless of the Secretary's regulations, once this
Commission's jurisdiction attaches we have our own statutory
responsibilities to fulfill and discharge. This can only be
done on the basis of an adequate record.
I will not order that the case be dismissed with respect
to Citation No. 2122147 pending final disposition of the
three other citations.
ORDER
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed $20 penalties for the

·~ 'J
13- ur.,.,

three citations discussed above are justified and settlement
warranted.
Otherwise, this case will be assigned and set
down for hearing on the merits.

~~

Paul Merlin
Chief Administrative Law Judge

Distribution:
David A. Pennington, Esq., Office of the Solicitor, U. S.
Department of Labor, Rm. 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104
(Certified Mail)
Mr. Robert 0. Weedfall, Maiden Mining Company, P. O. Box
235, Maidsville, WV 26541
(Certified Mail)

/ln

1330

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

JUL~ i 1983

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 82-335
A.C. No. 36-00970-03503
Maple Creek No. 1 Mine

U.S. STEEL MINING COMPANY, INC.,
Respondent
DECISION
Appearances:

Covette Rooney, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania,
and Frederick w. Moncrief, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
This is a civil penalty proceeding wherein the Secretary seeks
penalties for five alleged violations of mandatory health and safety
standards.
Petitioner filed a motion for summary decision with
respect to the violation charged in Citation No. 9901317 which was
denied by an order issued April 6, 1983. Pursuant to notice, the
case was heard in Uniontown, Pennsylvania, on April 27 and 28, 1983.
During the course of the proceeding, Petitioner moved to withdraw
the petition with respect to one citation - 9901316 - on the ground
that it could not establish a violation, and to have the citation
vacated.
The motion was granted on the record.
Respondent admitted
that the violations charged occurred but challenged the designation
of the violations as significant and substantial and contested the
amount of the penalties proposed. Joe Garcia, Thomas K. Hodous, M.D.,
William H. Sutherland, William R. Brown, Alvin Shade and Gerald E.
Davis testified for Petitioner. Samuel Cortis, Joseph G. Ritz,
Paul Shipley and John Pecko testified for Respondent.

133,1

Both parties have filed posthearing briefs. Based on the
entire record and considering the contentions of the parties, I
make the following decision.
FINDINGS OF FACT AND CONCLUSIONS OF LAW COMMON TO ALL CITF.TIONS
1. At all times pertinent to this proceeding, Respondent
owned and operated an underground mine in Washington County,
Pennsylvania, known as Maple Creek No. 1 Mine.
2. Respondent has an annual production of coal of approximately
15 million tons.
The subject mine has an annual production of
approximately 540 thousand tons.
Respondent is a large operator.
3. Between June 3, 1980 and June 2, 1982, Respondent's history
shows 656 paid violations at the subject mine. Of these, four were
violations-of 30 C.F.R. § 70.101, 71 were violations of 30 C.F.R.
§ 75.200, and 73 were violations of 30 C.F.R. § 75.503, the health
and safety standards involved in this case. This is a moderate
history of prior violations, and penalties otherwise appropriate
will not be increased because of this history.
4. Each of the violations charged herein occurred except as
otherwise found herein, and in each case the violation was abated
promptly and in good faith.
5. The imposition of penalties for the violations will not
affect Respondent's ability to continue in business.
6.
Respondent is subject to the provisions of the Federal Mine
Safety and Health Act of 1977 in the operation of the subject mine,
and the undersigned Administrative Law Judge has jurisdiction over
the parties and the subject matter of this proceeding.
CITATION NO. 9901317 ISSUED MAY 27, 1982
1. On October 26, 1981, a respirable dust technical inspection
was conducted on mechanized mining unit 010-0 in the subject mine.
A sample collected at that time for occupation 036 showed 10 percent
quartz. Based on this finding the respirable d~st limit on the unit
was reduced to 1.0 mg/m3. A sample taken on February 10, 1982,
showed 8 percent quartz and the dust limit was raised to 1.2 mg/m3.
In response to a request from Respondent, a technical investigation
was conducted from February 22 to March 1, 1982. This showed an
average dust concentration of 2.3 mg/m3. A citation was issued for
a violation of the dust standard. The same investigation showed a
quartz percentage of 7 and the respirable dust level was raised to
1.4 mg/m3. Between May 11 and 18, five respirable dust samples were
taken which showed an average concentration of 1.8 mg/m3 for which
the citation with which we are here concerned was issued.

,. .
133 v

2. Exposure to excessive amounts of respirable dust with a
quartz content in excess of five percent can contribute to silicosis
and coal workers pneumoconiosis.
The quartz content in the dust can
be a factor in the progression of simple coal workers pneumoconiosis.
It can also cause silicosis, a progressive, serious disease of the
lungs resulting from deposition of silica in the lung and the body's
reaction to it.
Coal workers pneumoconiosis and silicosis are
reasonably serious illnesses.
3. An exposure to 1.8 mg/m3 of respirable dust which contains
approximately seven percent quartz over a 2-month period, would not
in itself cause silicosis but would contribute in a substantial way
to the risk of acquiring silicosis.
See Secretary v. U.S. Steel
Mining Co., Inc., 5 FMSHRC 46, 67-68 (1983) (ALJ).
4.
The violation of 30 C.F.R. § 70.101 which occurred in this
case was reasonably likely to result in a reasonably serious disease.
Therefore, it was of such nature as could significantly and substantially contribute to the cause and effect of a coal mine safety or
health hazard.
See Secretary v. Cement Division, National Gypsum
Company, 3 FMSHRC 822 (1981); Secretary v. U.S. Steel Mining Co.,
Inc., supra; I should note that the precise issue raised by Respondent in this case was raised by it in the case of Secretary v.
U.S. Steel Mining Co., lnc., supra, before Judge Kennedy.
A decision
by a tribunal of competent jurisdiction is res judicata in a subsequent proceeding between the same parties involving the same issue.
46 Am. Jur. Judgments§ 397 (1969); lB Moore's Federal Practice
§ 0.405 (1982). Factual differences not essential to the prior
judgment do not render the doctrine inapplicable. Montana v. United
States, 440 U.S. 147 (1979); Hicks v. Quaker Oats Co., 662 F.2d 1158
(5th Cir. 1981).
Respondent had a full and fair opportunity to litigate this issue before Judge Kennedy and to petition the Commission
for review.
Based on the doctrine of res judicata, it should be
precluded from relitigating it here.
The government, however, did
not raise this issue, and the case was heard on the merits. My
conclusion here is based on a consideration of the evidence in the
case before me.
Respondent should not be permitted to endlessly
raise this issue, however.
I accept and adopt the analysis and
conclusions of Judge Kennedy that exposure to respirable dust with
a quartz content that exceeds 100 micrograms per cubic meter of air
constitutes a significant risk of a serious health hazard.
See also
Consolidation Coal Co. v. Secretary, 5 FMSHRC 378 (1983) (ALJ).
5.
There is no evidence that the violation was the result of
Respondent's negligence.
6.
I conclude that an appropriate penalty for the violation
is $200.

CITATION NO. 1250101 ISSUED MAY 21, 1982
1. The subject citation was issued because the inspector
found a broken torque wrench on the roof bolter. Roof bolting was
being performed at the time.
The torque wrench gauge had been
damaged and could not be used to determine the torque of the bolts.
The approved roof control plan requires that the first bolt be
checked prior to removing any temporary supports. Only one bolt
had been installed by the crew and no attempt to torque the bolt
had been made prior to the citation being issued. The roof control
plan is not violated by the fact that the torque wrench was defective, but only if the operator fails to torque the bolts in accordance with the plan.
Despite the fact that Respondent at the
commencement of the hearing admitted a violation, I conclude that
the evidence does not show a violation of the roof control plan and
will dismiss the petition with respect to this citation, and the
citation will be vacated.
CITATION NO. 1249541 ISSUED JUNE 1, 1982
1. The subject citation was issued charging a violation of
30 C.F.R. § 75.503 because of a permissibility violation in a
shuttle car resulting from a conduit being pulled out of the packing gland.
The violation was originally designated as significant
and substantial but this designation was subsequently deleted.
2. The violation was not serious but it was the result of
Respondent's negligence.
Respondent had been cited for the same
condition "quite a few times."
3.
I conclude that an appropriate penalty for the violation
is $75 based on the criteria in section llO(i) of the Act.
CITATION NO. 1250107 ISSUED JUNE 3, 1981
1. The subject citation was issued because of a permissibility
violation, 30 C.F.R. § 75.503, resulting from the absence of a bolt
on the control compartment on the foot switch of a shuttle car.
2.
In the event of methane entering the control compartment,
an internal explosion would be less likely to be contained within
the compartment and could get into the mine atmosphere. The shuttle
car was energized and was being prepared to load coal from the face.
3. The subject mine has been classified as a gassy mine.
Ignitions have occurred in the subject mine.
4.
I conclude that the violation was reasonably likely to
cause an injury of a reasonably serious nature.
The citation was
properly designated significant and substantial. The violation was
serious. The absence of the bolt should have been known to Respondent.
The violation was the result of Respondent's negligence.

1337

5.
I conclude that an appropriate penalty for the violation
is $200 based on the criteria in section llO(i) of the Act.
ORDER
Based on the above findings of fact and conclusions of law
IT IS ORDERED

(1)
The penalty proceeding is DISMISSED with respect to the
violations charged in Citation Nos. 9901316 issued May 27, 1982,
and 1250101 issued May 21, 1982, and the citations are VACATED.
(2)
Respondent shall pay within 30 days of the date of this
decision civil penalties for the following violations:
Citation No.

9901317
1249541
1250107

Date

Penalty Amount

05/27/82
06/01/82
06/03/82

$200
$ 75
$200
$475

(3)
The citation Nos. 9901317 and 1250107 were properly
designated "significant and substantial" and are AFFIRMED as issued.
(4)
In Citation No. 1249541, the designation "significant and
substantial" was deleted.

_

.·

11,Av, ' ,.,,..
J

. I

I

,, ,.,,-?

/_

r'V- '; ![) ,JJ 1J i l d{_, ., I{; ,,,...____

J

,

" James A. Broderick
Administrative Law Judge

Distribution:
Covette Rooney, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelpha, PA 19104 (Certified Mail)
Frederick w. Moncrief, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh,
PA 15230 (Certified Mail)

/fb

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

I\ l'
-~-, :"1..'
j~;l.

ln.M
~

APPLICATIO!l FOR ATTORNEYS FEES

RUSSELL COLLINS AND
VIRGIL KELLEY,
Applicants

Docket No. EAJ 83-1

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Respondent
DECISION
Statement of the Case
Following my decision dismissing a civil penalty
proceeding brought by the Secretary of Labor under section
llO(c) of the Mine Safety Law, 4 FMSHRC 1816 (1982), two of
the six individuals charged moved for an award of costs and
attorneys fees. 1/ Jurisdiction over the claim arises under
the Equal Access-to Justice Act (EAJA), 5 U.S.C. § 504(a).
The bench decision dismissing the charges occurred
after lengthy pretrial discovery and a four-day evidentiary
hearing.
It was predicated on a failure of proof with
respect to both the underlying violation and applicants'
alleged knowing participation therein.
Thereafter, counsel for the Secretary waived his right
to challenge the tentative bench decision; agreed there was
insufficient evidence to show applicants knowingly authorized,
ordered or carried out the violation charged; joined nunc
pro tune applicants' motion to dismiss at the close of the

1/

The gravamen of the charge was that applicants, a
superintendent and a foreman at the Annapolis, Missouri
quarry of the GAF Corporation, with knowledge that the
braking system of a large haulage truck was unsafe,
authorized or ordered miners to operate the truck on a
steep haulage road thereby endangering their lives. The
relevant mandatory safety standard, 30 C.F.R. 56.9-2,
prohibits the use of self-propelled equipment with "defects
affecting safety."

1339

receipt of· evidence; and in the alternative independently
moved to dismiss the Secretary's charges on the grounds
stated in the decision of the trial judge. 2/
An exhaustive review of the record shows the Secretary's
evidence failed to rise above a level of suspicion.
Indeed,
the countervailing evidence as to the drivers' negligence
and reckless disregard for safe operation of the truck,
which both the underlying investigation and the solicitor's
pretrial discovery largely ignored, convincingly shows that
the government's litigation position was factually and
legally untenable.
The failure to properly evaluate the
probative force of this evidence, including the implausibility
of the characterizations of the operative facts by the
Secretary's witnesses, led to an improvident decision to
proceed where no prosecutable offense had, in fact, been
committed.

2/ The Secretary contends the trial judge's denial of
applicants' motion to dismiss at the close of MSHA's casein-chief shows the government's litigation position was
substantially justified. As my decision made clear, because
of the need for clarification of the testimony given by the
bench witness Warnecke I resolved all questions of credibility and conflicts in favor of the Secretary. This afforded
applicants the opportunity to present the trial judge with
a full exposition of the claimed flaws in the government's
position.
The first benefit of that decision was the Secretary's
accedence in the correctness of the trial judge's tentative
decision as to the final disposition of the matter. ~he
second benefit was the light which that record affords for
making this decision.
For these reasons, I find the Secretary's threshold
contention without merit. The Secretary vigorously opposed
the motion to dismiss at the close of MSHA's case-in-chief
although at that time counsel had to be painfully aware of
the unreliability of MSHA's witnesses. There is authority,
of course, for holding the government liable for attorney
fees and expenses where it adopts, even briefly, a litigation position lacking substantial justification. H.R. Rep.
1418, 96th Cong., 2d Sess., 11 (1980); S. Rep. 253, 96th
Cong., 1st Sess. 7 (1979); Stanley Spencer v. NLRB, D.C.
Cir. No. 82-1851, decided June 28, 1983, Slip Op. at 34,
n. 58. But since counsel for applicants' has not separately
argued the point I will treat it as subsumed under the
argument that the record considered as a whole shows the
government's position in the underlying litigation was no~
substantially justified.

The record at trial confirmed the fatal flaws in the
pretrial investigation and preparation of the case.
The
same considerations that led to the decision to dismiss four
of the six respondents after two days of trial supported my
finding that the claimed mechanical defect in the braking
system was not a defect affecting safety. Further, applicants' knowledge of the complaining drivers' improper and
unsafe operating procedures justified applicants' reliance on
brake adjustments to correct the condition and did not
violate applicants' duty under the law to provide a vehicle
capable of safe operation.
As the court of appeals has recently pointed out, the
fact that government counsel may have felt reasonably
justified in putting applicants to their proof does not mean
the agency was substantially justified in pursuing the
litigation.
One of the principal purposes of the EAJA was
to deter prosecutors from pursuing weak cases or to pay the
price in sizeable awards of attorneys fees. 3/ Stanley Spencer,
supra, Slip Op. at 22, n. 40; 39-41. Thus, it would be
improper for me to accept as a substantial justification the
bald assertion that the testimony of the complaining drivers,
if uncritically accepted, was sufficient to warrant this
prosecution. As the court noted, where the controversy
revolves around competing characterizations of the underlying facts, here a defect in the braking system allegedly
affecting safety, the ''trial judge must a-ssess the plausibility
of the government's original depiction of the situation that
gave rise to the suit." This "involves evaluation of the
probative force of evidence submitted by the government."
Stanley Spencer, supra at 51-52.
The government's only disinterested witness, Mr. Zancauske,
was reliable but gave no evidence probative of a defect in
the braking system affecting safety.
It is true that he
testified there might have been a defect in the braking
system but he could not say it affected safe operation of
the truck. On the other hand, he unreservedly expressed the
view that the principal problem was the drivers' habit of
riding the brakes on the steep inclines instead of gearing
down and engaging the retarder.
Counsel, who admitted he
had never interviewed Mr. Zancauske before he testified,
made a serious error in believing Mr. Zancauske would provide
probative evidence of the underlying violation. Absent
reliable, probative and substantial evidence of the underlying
3/ Indeed the EAJA seems to be a specific grant of authority
to review the exercise of prosecutorial discretion.

1341

violation, the Secretary could never hope to prove applicants
knew or should have known of its existence.
It is impossible
for an individual to have knowledge of the unknowable or of
the existence of the nonexistent.
A review of the investigative file further shows the
inspection and investigation were botched due to a lack of
diligence, if not competence, on the part of both the
inspector and investigator. Nor did their failure to appear
as witnesses because they chose to take a vacation enhance
the worth of their efforts.
Applying what I understand is the applicable standard,
a standard which Congress and the courts deem to be "slightly
more stringent than one of reasonableness," I conclude that
neither the underlying nor the ligitation position of the
Secretary was substantially justified. 4/ S. Rep. 96-253,
supra, at 8; Stanley Spencer, supra, Slip Op. 16, n. 31, 25,
39.
Because this case presents a matter of first impression
under the EAJA for the trial judge and the Commission as
well as an issue of eligibility which has never before been
decided by any tribunal, administrative or judicial, I set
forth below my formal findings and conclusions.
Findings and Conclusions
Attorney Fees - Eligibility
The Equal Access to Justice Act (EAJA} requires the
award of attorney fees and expenses to a qualified party
prevailing against a regulatory agency unless the administrative law judge who heard and determined the matter finds

4/ While the EAJA indicates that it was the Secretary's
position "as a party," on which I should focus, I agree with
the court's observation that "Examination of the variety of
kinds of controversies covered by the Act reveals that, in
the large majority of contexts, it makes no functional
difference how one conceives of the government's 'position.'
In actions brought by the United States, the governmental
action that precipitates the controversy almost invariably
is its litigation position." Stanley Spencer, supra at 25.
That was certainly true in this case.

134~2

that "th~ position·of the agency as a party to the proceedings
was substantially justified or that special circumstances
make an award unjust." ~/
Administrative Law Judges of the Federal Mine Safety
and Health Review Commission are by law the designated
adjudicative officers under the Mine Safety Law for charges
brought under section llO(c) of the Act.
30 U.S.C. § 823(d) (1).
The Commission has determined therefore that they are
authorized to hear and determine claims for fees and expenses
arising under the EAJA against the Department of Labor which
is charged with responsibility for enforcing the Mine Safety
Law.
29 C.F.R. 2704.20l(f). Unlike the old line regulatory
agencies such as the FTC, SEC, ICC, FCC, CAB and NLRB, the
Federal Mine Safety and Health Review Commission (FMSHRC)
does not initiate or prosecute the adversary administrative
adjudications that it hears and decides.
This Commission is
an independent administrative agency that functions as an
administrative trial and appellate court.
30 U.S.C. § 823.
The Commission possesses only adjudicative powers, has no
prosecutorial prerogatives, is not a party to proceedings
brought before it, and is not responsible for the actions of
the Department of Labor in initiating or prosecuting alleged
violations of the law. Under the Commission's rules, awards
are made by the Commission and its judges against the Department of Labor.
29 C.F.R. 2704.108. Findings by the Commission's
trial judges are final and conclusive if supported by substantial evidence. Chacon v. Phelps Dodge Corporation, D.C.
Cir. No. 81-2300, decided June 7, 1983, Slip Op. at 9-10.
Judicial review is available in the courts of appeals under
an abuse of discretion standard only to the extent that a
decision denies an award or there is a dispute over the
calculation of an award.
5 U.S.C. § 504(c) (2). §_I
~

5 U.S.C. § 504(a) provides:
An agency that conducts an adversary adjudication shall
award, to a prevailing party other than the United
States, fees and other expenses incurred by that party
in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of
the agency was substantially justified or that special
circumstances make an award unjust.

6/ Stewart, Beat Big Government and Recover Your Legal
Fees, 69 ABAJ 912 (1983); Few Claimants Win Fee Awards in
Agency Actions, Legal Times, Monday, April 25, 1983, p. l;
Courts Debate Reach of EAJA, Legal Times, Monday, May 16,
1983, p. 16.

1343

There is no d1spute about the fact that applicants were
prevailing parties whose individual net worth was less than
$1,000,000.
The Secretary suggests a special circumstance
warranting denial of applicants' eligibility, however, is
the fact that they incurred no expense in defending themselves.
Applicants' employer, GAF Corporation, a large, multinational corporation with more than 500 employees and a net
worth that exceeds $5,000,000 authorized one of its fulltime house counsel, Mr. Patrick Daly, to represent applicants
with the understanding that (1) GAF would defray all of the
expense involved without right of reimbursement from applicants and (2) if applicants prevailed Mr. Daly would be
entitled to keep whatever attorney fees and expenses he
succeeded in recovering.
If the allowance of fees for
Mr. Daly's services is in accord with the purposes and
policy of the Act, I can perceive no valid basis for denying
applicants' eligibility even if payment to Mr. Daly amounts
to a bonus to him over and above the salary and benefits he
earned from GAF during the period of his pro bono representation of applicants. Under the Commission~rules and the
applicable case law the fact that services are rendered on a
pro bono basis is no bar to the recovery of fees for such
services by a prevailing party. Rule 2704.106(a); Hornal v.
Schweiker, 551 F. Supp. 612, 615-616 (M.D. Tenn. 1982);
Kinne v. Schweiker, Civ. No. 80-81, D. Vt., December 29,
1982. Compare Munsey v. FMSHRC, No. 82-1079, D.C. Cir.,
March 11, 1983. Contra, Cornella v. Schweiker, 553 F. Supp.
240, 245-248 (D.S.D. 1982).
The language of the Act and its legislative history
lead me to conclude the underlying policy of the EAJA is
served by awarding applicants Mr. Daly's fees regardless of
the source of the funds advanced to enable him to def end
applicants.
The Act, as well as the House and Senate
Committee Reports, show that to be allowable fees and expenses
need not be actually owed to attorneys.
The Act provides
that awards are to be based on "prevailing market rates,"
5 U.S.C. § 504(b) (1) (A), and that this is to be the measure
of the prevailing party's recovery.
The "measure" of applicants' entitlement has nothing to do with whether they owe
all, some, or none of it to the attorney or anyone else.
The House Report states:
In general, consistent with the above limitations
[$75.00 per hour], the computation of attorney fees
should be based on prevailing market rates without
reference to the fee arrangements between the attorney
and client. The fact that attorneys may be providing

1 un ':i.t1 '1•

services at salaries or hourly rates below the standard
commercial rates which attorneys might normally receive
for services rendered is not relevant to the computation of compensation under the Act.
H.R. Rep. 96-1418, supra, at 15. The Senate Report is to
the same effect. For these reasons, I conclude that in
considering applicants' claims for Mr. Daly's fees the
source of the funds used to defray Mr. Daly's expenses
pendente lite and the actual fee arrangement between applicants and Mr. Daly is irrelevant.
On the other hand, I find special circumstances bar the
award of fees and expenses for services rendered by outside
attorneys employed by GAF to assist Mr. Daly in his representation
of applicants.
These attorneys did not enter appearances in
the matter on behalf of applicants, had no colorable attorneyclient relationship with applicants, and no pro bono or
other fee arrangement with applicants.
They were employed
by Mr. Daly in his capacity as labor attorney for GAF on the
understanding that their billings would be sent to and paid
for by GAF.
These fees and expenses, which totalled $13,139.31,
were, in fact, paid by GAF Corporation for the services
rendered. Under these circumstances, payment of these sums
to Mr. Daly or applicants would be a pure windfall. Further,
since the outside attorneys have been paid by GAF the statute
does not authorize further payment to them.
The remaining question is whether GAF Corporation
qualifies directly for reimbursement of the fees and expenses
incurred on behalf of applicants.
I find payment of these
monies is not compensable to GAF because this tax deductible
business expense was made not only on behalf of applicants
but in pursuit of GAF's own business interests.
These were
GAF's interests in (1) supporting and defending its supervisory management against what it firmly believed to be
trumped-up charges of reckless disregard for safety and
(2) creating a precedent against MSHA's easy acceptance of
charges of wrongdoing against supervisors by union representatives and rank-and-file miners.
In other words, GAF
had a large stake in this litigation from the standpoint of
preserving management's valued right to manage its quarry
without unwarranted intrusion on that right by the union and
MSHA.
While it is clear that a deterrent to improvident
regulatory action is in accord with the purposes and policy
of the Act for eligible applicants, here GAF was not an
eligible applicant.
5 U.S.C. § 504(b) (1) (B); H.R. Rep. 961418, supra, at 15. Because of its size and wealth the

1345

economic deterrent the Act sought to remove with respect to
applicants was never present with respect to GAF which,
quite properly, chose to join in applicants' defense as a
matter of sound and prudent business policy. Further, as a
necessary and proper business expense incurred by GAF, up to
54% of the sums in question have already been fee-shifted to
the government under the applicable provisions of the
Internal Revenue Code.
Under the circumstances shown, I believe GAF's participation was sufficient to make it a privy to applicants'
defense.
The claim for fees and expenses for the outside
attorneys and law firms is therefore, disallowed on the
ground that this expense was primarily incurred on behalf of
an entity ineligible to receive compensation under the terms
of the statute. 7/ It is also denied on the ground that to
allow an award oF the outside attorney fees and expenses to
applicants or GAF would, under the special circumstances
shown, be unjust and inequitable. ~/
The Standard
The EAJA does not require the Government to compensate
prevailing parties automatically for fees and expenses.
Instead, it adopts a compromise position, embodied in the
standard of "substantial justification," which "balances the
constitutional obligation of the executive branch to see
that the laws are faithfully executed against the public
interest in encouraging parties to vindicate their rights." 9/
H.R. Rep. No. 96-1418, supra, at 10.
In particular, Congress
rejected the liberal standard of recovery under the civil
rights statutes which generally entitle prevailing plaintiffs

2/

Rule 2704.104(g) provides:
An applicant that participates in a proceeding primarily
on behalf of one or more other persons or entities that
would be ineligible is not itself eligible for an
award.

8/ The House Report notes the "special circumstances"
exception was intended to give the trial judge "discretion
to deny awards where equitable consideration dictate an
award should not be made." H.R. Rep. 96-1418, supra, at 11.
9/ An analogous provision, 28 U.S.C. § 2412 affords a
similar entitlement to attorney fees and expenses to prevailing parties in the courts.

1346

to receive an award of attorney fees unless special circumstances would render an award unjust. See Newman v. Piggie
Park Enterprises, Inc., 390 U.S. 400, 402 (1968).
At the same time, Congress rejected a standard proposed
by the Department of Justice which would have authorized
recovery of fees and expenses against the Government only if
a _prevailing party could prove that the government's position
was arbitrary, frivolous, unreasonable, or groundless. H.R.
Rep. 96-1418, supra, at 10, 14. See, Christianbery Garment
Co. v. EEOC, 434 U.S. 412, 420-421 (1978). Such a restrictive
approach, Congress reasoned, would maintain significant
barriers to recovery of fees by prevailing litigants and
would not appreciably diminish existing deterrents created
by the high cost of vindicating legal rights in the face of
arbitrary and unreasonable government action. Id.
The standard of recovery that ultimately emerged
represents a "middle ground" between an automatic award of
fees to a prevailing party engaged in litigation with an
agency and the standard proposed by the Department of
Justice. Although the Act itself is silent on the meaning
of the "substantially justified" standard, the House Report
contains an instructive passage:
The test of whether or not a Government action is
substantially justified is essentially .one of reasonableness. Where the Government can show that its case
had a reasonable basis both in law and fact, no award
will be made.
In this regard the strong deterrents to
contesting Government action require that the burden of
proof rest with the Government.
This allocation of the
burden, in fact, reflects a general tendency to place
the burden of proof on the party who has readier access
to and knowledge of the facts in question. The committee
believes that it is far easier for the Government,
which has control of the evidence, to prove the reasonableness of its action than it is for a private party
to marshal the facts to prove that the government was
unreasonable.

*

*

*

*

*

*

The standard, however, should not be read to raise a
presumption that the Government position was not
substantially justified, simply because it lost the
case. Nor, in fact, does the standard require the
Government to establish that its decision was based on
a substantial probability of prevailing.
H.R. Rep. 96-1418, supra, 10-11.

134'1

The legislative history also teaches that the government
must "make a positive showing that its position and actions
during the course of the proceedings were substantially
justified." H.R. Rep. 96-1418, supra 13.
In Tyler Business
Services v. NLRB, 695 F.2d 73, 75 (4th Cir. 1982), the court
held this requires an agency to substantially justify not
only its actions as a party to the proceeding but also its
preliminary decision to initiate the proceeding. Contra,
Stanley Spencer, supra.
In cases charging knowing violations by supervisors,
MSHA acts as the investigator.
The decision as to whether
there is a prosecutable offense and the conduct of the
prosecution, however, rests with the Office of the Solicitor,
Department of Labor. While the record is replete with
indications of the ineptness of the investigation, this
would not require an award if the solicitor's pretrial
preparation and discovery filled the voids in the investigative record to the point where it can fairly be said that
by the time of the evidentiary hearing the solicitor had
substantial, legally competent evidence of the violations
charged.
If, on the other hand, the solicitor's case, as
presented, shows that at no time did he have such relevant
evidence as a reasonable mind might accept as adequate to
support a finding that the underlying violation occurred and
that applicants knew or should have known of the putative
condition I cannot find the Secretary's litigation position
was substantially justified.
Since the advent of the EAJA, the quality of departmental in-house lawyering must obviously improve. No
longer may the solicitor ''wing" it or rest on MSHA's recommendation as the justification for pursuing weak and tenuous
cases.
The solicito~ must make an independent evaluation of
the probative force of his evidence in the light of the
expected defense and whatever else fairly detracts from the
probative value of his evidence.
The need to raise the level of the plane of litigating
competence in administrative proceedings was foreshadowed by
the legislative history's admonition that the EAJA was
intended "to caution agencies to carefully evaluate their
case and not to pursue those which are weak or tenuous." 10/
10/ The Act was intended to "induce government counsel to
evaluate carefully each of the various claims they might
make in a particular controversy, and to assert only those
that are substantially justified." Stanley Spencer, supra,
at 36.

1346

H.R. Rep. 96-1418, supra, 14. The requirement for pretrial
evaluation of the worth of evidence when coupled with the
burden of demonstrating that a litigation position was
substantially justified were purposely designed to press
agencies "to address the problem of abusive and harassing
regulatory practices." H.R. Rep. 96-1418, supra, 14.
Further, because this was a case in which the government conceded only after there was a substantial investment
of effort and money the Secretary was required to make an
"especially strong showing that [his] persistence in litigation was justified." Stanley Spencer, supra, at 43.
Compare Id. 16, n. 31, 22, n. 40, 33-34, n. 58.
Insight as to the Secretary's burden is gleaned from
the following passage of the legislative history:
Certain types of case dispositions may indicate that
the Government action was not substantially justified.
A court should look closely at cases, for example,
where there has been a judgment on the pleadings or
where there is a directed verdict or where a prior suit
on the same claim had been dismissed.
Such cases
clearly raise the possibility that the Government was
unreasonable in pursuing the litigation.
H.R. Rep. No. 96-1418, supra, at 10-11; S. Rep. No. 96-253,
supra, at 6-7.
Here, of course, the record shows that after protracted
litigation the Secretary acceded by joining the applicants'
motion to dismiss the charges.
Nevertheless, the Secretary argues that because the
underlying case involved questions of credibility it was per
se "reasonable" for government counsel to pursue the litigation.
I do not agree.
A central objective of the Act was to require government counsel to carefully evaluate the worth of informers'
testimony. No longer may counsel for the Secretary offer
such testimony "for whatever its worth." At least not
without risk of the imposition of substantial awards for
attorney fees and expenses.
As the court of appeals so trenchantly observed, the
purposes of the Act will "not be promoted by treating the
question of whether the position taken by the United States
in a particular case was 'substantially justified' as

134U

equivalent to the question whether it was 'reasonable' for
government counsel to pursue the litigat~on." Stanley
Spencer, supra, at 39. My analysis of the government's
litigation position shows its counsel gullibly accepted
totally implausible stories by witnesses who had every
incentive to disinform if not outright lie.
The fact that
bureaucratic constraints may have encouraged counsel to
accept their stories at face value does not justify a conclusion that the decision to proceed, followed by dogged pursuit
of a "long shot" was substantially justified.
I conclude, therefore, that the standard to be applied
in determining whether the Secretary's case was substantially
justified was not whether it was arguably or reasonably
justified by the investigatory record but whether an objective evaluation of the probative force of the evidence
adduced at the hearing shows that there was sub~tantial
credible evidence that the braking system of the Euclid
truck had a defect affecting safety; that applicants knew or
should have known of this condition; and that with such
knowledge or awareness they tacitly ordered or authorized
continued use of the truck. 11/
Evidence which was discredited or which did not directly
or circumstantially raise an inference of the existence of
an operative fact was not substantial and therefore did not
constitute a substantial justification fo~ the agency's
litigation position.
In this context substantial evidence
is used, to mean "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion'' and
not "a certain quantity [or preponderance] of evidence."
Steadman v. SEC 450 U.S. 69, 98-100 (1980).

11/ Substantial evidence may consist of either direct or
circumstantial evidence.
It need not be dispositive but
standing unrebutted must be capable of raising an inference
of the existence of the operative fact or facts in issue.
If it does not raise such an inference it is not substantial
and cannot provide a substantial justification for prosecution of a case.
I recognize that statutory formulations for
reviewing discretion are among the most unsatisfactory of
legislative standards. Words such as "substantial justification" or "abuse of discretion" state conclusions, not
premises from which a conclusion may be derived. While
these verbal formulas provide the terms in which the conclusion of invalidity may be pronounced, they do nothing to
articulate the process of analysis by which the issue of
invalidity is to be litigated and decided.

1

..J_

3 <..)r '0

The Evidence
At the outset of the hearing the Secretary offered a
document subpoenaed from the files of the Midco Sales &
Service Company which showed that after the imminent danger
closure order (later modified to an unwarrantable failure
citation) was issued GAF immediately employed Midco to
perform repairs on the braking system of the Euclid truck
(GX-1).
This document, a purchase order, invoice, and
service report covering the work done, was offered through
Mr. Jerry D. Zancauske, service manager for Midco, to establish
(1) the fact of violation under the strict liability standard
of the Act, and (2) culpable conduct, i.e., consciousness of
fault through awareness of the existence of a defect affecting
safety on the part of the six individual respondents (Tr.
38-39).
Counsel for respondents objected to the receipt of this
document and testimony pursuant to the exclusionary rule set
forth in Rule 407 of the Federal Rules of Evidence (Tr. 24,
39). Rule 407 provides:
When, after an event, measures are taken which, if
taken previously, would have made the event less
likely to occur, evidence of the subsequent measures is
not admissible to prove negligence or culpable conduct
in connection with the event. This rule does not
require the exclusion of evidence of subsequent
measures when offered for another purpose, such as
proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. 12/
The trial judge admitted the document and Mr. Zancauske's
testimony solely to prove the fact of violation under the
strict liability standard of the Mine Safety Law.
(Tr. 3941).
13/
12/ The document was never used for impeachment nor was the
fact of ownership, control or feasibility of precautionary
measures ever controverted.
13/ The trial judge also admitted the invoice, service
report and G~F's purchase order, all of which were part of
the same document, as records kept in the regular course of
business (Tr. 64, 75-76), and as an implied admission under
Rules 801 (d) (2) (A), (B), (D), and 803 (6) (Tr. 78). Since
this evidence was barred under Rule 407, it was not properly
received under these rules.
23 Wright & Graham, Federal
Practice & Procedure § 5284, at 109-110 (1980).

1351

A review of the applicable case law shows that since at
least 1980 the weight of authority has supported the view
that Rule 407 bars the receipt of post hoc remedial measures
with respect not only to culpable conduct but also strict
liability. Neither counsel brought these authorities to
the attention of the trial judge during the hearing.
Nevertheless, in deciding whether the Secretary's action in
prosecuting this matter was substantially justified I find
it necessary to consider whether in view of the practical
unaniminity of the decisions interpreting Rule 407 as
precluding the receipt of evidence of post-event repairs to
show strict liability, negligence, or culpable conduct it
was reasonable for the Secretary to rely on this inadmissible
evidence as the keystone of his case against these applicants.
I conclude it was not. 14/
Rule 407 of the Federal Rules of Evidence bars postevent remedial evidence to prove (1) strict liability,
(2) negligence, or (3) culpable conduct.
The rationale for
this exclusionary rule is the public interest in encouraging
the adoption of safety measures and the questionable relevancy
of evidence of subsequent repairs.
2 Wigmore, Evidence
§ 283, at 151 (3 Ed. 1940); Columbia and P.S.R.R. v. Hawthorne,
144 U.S. 202, 207-208 (1892); Weinstein's Evidence, ~ 407(02)
(1982); Louisell and Mueller, Federal Evidence, §§ 163, 164
(1978); 23 Wright & Graham, Federal Practice and Procedure,
§ 5382 (1980).
While there is, and will probably continue to be,
considerable debate, at least among the commentators, over
whether the quasi-privilege created by Rule 407 encourages
people to correct unsafe conditions or practices, there is
practical unanimity among the courts of appeals on the
question of relevance. Because of its equivocal nature, the
courts have held that evidence of subsequent repair has
little relevance with respect to whether a defect affecting
safety existed in a machine or product prior to its repair .

.!.!/

Even if properly received, which I find it was not, the
repair report was of little or no probative value since
standing alone it did not establish that the drivers' complaints
over the need for frequent adjustments was attributable to
any defect affecting safety in the equipment. Further,
Mr. Zancauske's testimony served only to corroborate the
respondents' claim that the principal defect affecting
safety was the improper driving habits of the drivers
assigned to operate the equipment (Tr. 104-105).

1 '{ dr:-,'r::.
t.J

Grenada Steel Industries v. Alabama Oxygen Co., 695 F.2d
883, 887 (5th Cir. 1983), and cases cited.
The commentators also favor the view that Rule 407 does
not apply in strict liability cases. Again the federal
circuit courts have disagreed.
Research discloses that long
before this case went to trial it had been authoritatively
held in the First, Second, Third, Fourth, Fifth, Sixth and
Seventh Circuits that post hoc remedial measures were not
admissible in strict liability cases. Grenada Steel Industries,
supra, at 888; Oberst v. International Harvester Company,
640 F.2d 863, 866 & n. 5 (7th Cir. 1980). Compare DeLuryea
v. Winthrop Labs., 697 F.2d 222, 229 (8th Cir. 1983).
Counsel for the Secretary was chargeable with knowledge
of these developments in the law of evidence, including the
fact that the Supreme Court had denied certiorari in two of
the leading cases that support application of the exclusionary
rule in strict liability proceedings. Werner v. Upjohn Co.,
628 F.2d 848 (4th Cir. 1980); cert. denied, 449 U.S. 1080
(1981); Cann v. Ford Motor Co.~8 F.2d 54, 59-60 (2d Cir.
1981), cert. denied
U.S.
, 72 L Ed. 484 (1982).
In
Cann, the court observed:
The failure of Rule 407 to refer explicitly to actions
in strict liability does not prevent its application to
such actions. When Congress enacted the Federal Rules
of Evidence, it left many gaps and omissions in the
rules in the expectation that common law principles
would be applied to fill them . . . . The application
of those principles convinces us that although negligence and strict product liability causes of action are
distinguishable, no distinction between the two justified
the admission of evidence of subsequent remedial measures
in strict product liability actions.
Id. at 60.
The question of admissibility aside, a review of the
totality of the evidence as to the repairs effected by Midco
shows the Secretary was not justified in believing the
brakes on the Euclid truck were defective at the time the
closure order issued. Mr. Zancauske candidly admitted that
while he supervised the brake repairs he had no personal
knowledge or "hands on" experience with the condition of the
brakes either before or after the closure order issued and
that from the service report he could not testify as to what
the "holding ability or stopping ability of the brakes of
this truck" were prior to the time Midco worked on it (Tr.
59). When pressed for an opinion he could only say he
"surmised" that safety of the brakes may have been adversely
affected by the presence of an unknown quantity of oil or

1353

grease on one of the brake linings (Tr. 59-63, 107-109).
Whether this was a "major" or "minor" defect and whether it
affected safety he said he could not say (Tr. 108-109).
Most telling was the foli'owing colloquy between counsel for
the Secretary and Mr. Zancauske:
Counsel:

Q. Can you explain what it means to adjust the brakes
on this type of machine, on this very machine, let's say,
the Euclid truck?
Judge:

If you know.

Counsel:

Q. If you know. If you were to adjust the brakes, and
they get hot and have to be backed off, what does that
indicate to you, sir?
A.
That somebody might be riding the brakes overheating them.
Q. And if this continues over a two month period for
practically every eight-hour shift at this quarry, and
sometimes even eight and nine times during this shift that
the brakes have to be adjusted they get hot and have to be
backed off, and this occurs for a two month period, what
would that indicate to you, sir?
A. Well you could assume several things. One, that
the operator is driving too fast, he's not using the retarder.
Q.

Let's assume he's using the retarder.

Judge: Let him answer the question, don't interrupt.
Go ahead, sir.
A. Not using the retarder, he's driving too fast, or
the hauls are in such a short sequence that the brakes are
having to be used too much, that maybe not all of the
wheels are not holding to their ability that they were
designed for.

*

*

*

*

*

*

Counsel:

Q. What is the effect of the brakes heating up, does
that help deteriorate them?

A.
If you have an overheating condition of the brakes
for a period of time, you'll heat crack the drums and glaze
the lining, which will affect your stopping ability. Tr.
104-105.
Three days and many hundreds of transcript pages later
the undisputed testimony of Mr. Weigenstein, an experienced
quarry foreman and GAF's expert on the repair and maintenance
of the Euclid truck gave substantially the same reasons for
the need for repeated adjustments to the brakes, namely, the
fact that the complaining drivers drove too fast, failed or
refused to use the retarder and continually rode the brakes
on the steep inclines thus overheating the brakes and impairing
their braking power (Tr. 861-868).
Counsel for the Secretary admitted neither he nor
MSHA's investigator had interviewed either Mr. Zancauske or
Mr. Weigenstein before they testified and apparently had no
idea that they would be in agreement as to the causes for
the brakes overheating and losing their braking power.
Despite this the Secretary contends that he was substantially justified in pursuing these matters because (1) a
mechanic of admittedly limited experience and knowledge but
who worked on the truck believed the adjustments were not
effective to remedy the condition because of a break in a
seal on the right rear wheels which allowed grease to leak
on the brake lining causing the lining to crystallize and
lose braking power, (2) the mechanic related this defect to
applicants at a meeting on February 15, 1980, (3) applicants
reportedly took no corrective action but authorized continued
use of the truck, and (4) Mr. Zancauske the service manager
for Midco who supervised the post-citation repair work
believed that if there was oil or grease on the right rear
brake lining it could result in a "slipping effect" on that
wheel assembly that could diminish the degree of friction
necessary for proper braking of the truck.
Facts developed on cross examination showed that the
mechanic's testimony was highly unreliable. He was an
individual with an obviously selective memory and little
experience as a heavy equipment mechanic. The only completely
candid testimony he gave was persuasive of the fact that he
had never pulled the right rear wheel assembly of the truck
to examine the alleged oil or grease leak and that the
crystallization of the lining on the other wheels was, he
believed, due to the complaining drivers' penchant for
riding the brakes down the steep grades (Tr. 324, 327, 364).
Had a thorough pretrial interview of the witness been

1355

conducted, these facts would have been .known to governr,1ent
counsel before Mr. Stevens testified. ~
With respect to the Secretary's other contentions,
applicants claim the Secretary knew or should have known
(1) that after the meeting on Friday, February 15, 1980,
applicant Collins assigned applicant Kelley to investigate
the complaints about the truck, (2) Mr. Kelley went to the
day shift driver, Mr. Warnecke, and asked him to check the
brakes, (3) Mr. Warnecke checked the brakes and reported
they were "adequate," (4) the truck was not operated thereafter (because of the intervening weekend and Washington's
Birthday holiday) until Tuesday, February 19, 1980, (5) that
Mr. Collins told Mr. Weigenstein the quarry foreman who had
over 3o years experience in maintaining heavy haulage equipment (20 years on this truck alone) to perform a thorough
check of the braking system of the truck on the afternoon of
Tuesday, February 19, 1980, (6) that Mr. Weigenstein took
the truck out of service on the evening shift of Tuesday,
February 19, and for four hours performed a complete overhaul of the braking system, (7) that Mr. Weigenstein did not
find any measurable amount of oil or grease leaking on the
right rear brake drum but did find and correct a leak in the
hose that serviced the retarder, (8) that Mr. Howard, one
of the complaining drivers, knew this work was performed on
the truck, (9) that when the truck was put back into service
on the midnight shift on February 20, it had no defect
affecting safety, (10) that Mr. Johnson one of the complaining
drivers drove the truck during that entire shift without
adjusting the brakes, (11) when Mr. Warnecke the day shift
driver took the truck over at 7:00 a.m. the morning of
Wednesday, February 20 he found the brakes were in need of
adjustment, (12) that Mr. Johnson was known to drive at
excessive speeds and to ride the brakes instead of using the
retarder in order to move his loads faster, (13) that
foreman Goodman approached Mr. Warnecke and asked him if the
brakes were adequate at about the time he, Mr. Warnecke, had
decided to take the truck to the repair shop for a brake
adjustment, (14) that the inspector Mr. Ryan arrived on the
mine site around 7:00 a.m., announced he was there to investigate a complaint from the union about the truck and asked
for the union representative, Mr. Mathes, (15) that when
told Mr. Mathes was not there Mr. Ryan left the mine site to
find Mr. Mathes, (16) that when the inspector returned about
an hour later he found the truck parked at the repair shop,
awaiting a brake adjustment, (17) that without making a
static check of the condition of the brakes, the inspector,
Mr. Ryan, directed the driver Mr. Warnecke to drive him to
the loading area, (18) that Mr. Ryan directed Mr. Warnecke

135b

to ride the brakes .in taking the loaded truck down the steep
grades, (19) that Mr. Warnecke did this but had to put the
truck into reverse to stop it at one point because the
brakes had not been adjusted, and (20) that Mr. Zancauske
could not persuasively identify the defect that allegedly
affected the safety of the brakes on the truck.
These undisputed facts lead me to concur in the applicants' claim that there never was any credible evidence that
applicants failed to act in a responsible manner to correct
the claimed defect affecting safety; that the defect claimed
did not, in fact, affect safety either because it did not
exist, or if it did, it was not serious enough to affect
safety; that the retarder and other failsafe mechanisms
described by Mr. Weigenstein were unaffected by the claimed
oil leak; that the inspector, the investigator and the
Secretary's trial counsel knew or should have known that the
witnesses Warnecke and Weigenstein would testify that as a
result of the complaint on February 15 corrective action was
promptly taken; that no amount of corrective action could
offset the drivers' bad driving habits; that the brakes ran
hot because the complaining drivers operated the truck with
a reckless disregard for their own safety; that the failure
to take statements from the witnesses Warnecke and Weigenstein
was not justified since both were material witnesses of
applicants claimed dereliction and, in fact, Mr. Weigenstein
was charged with the same dereliction.
Accordingly, I conclude there was (1) no credible
evidence that applicants knew or should have known the truck
was being operated with a defect affecting safety, (2) no
probative evidence that the truck was at any time operated
with a defect affecting safety, and (3) in the exercise of
due diligence the Secretary and his duly authorized representatives including his trial counsel knew or should have
known this.
In view of the oversights and deficiencies in the
agency investigation and prosecution of this matter, I find
there was no substantial justification for the agency to
believe it could prove the underlying violation or applicants
participation therein.
Order
The premises considered, it is ORDERED that the application for award of attorney fees and expenses be, and hereby

135'(

is, GRANTED as to the fees claimed by Mr~ Daly, 0theiwise it
is DENIED.
It is FURTHER ORDERED that, there being no
objection of record to the amount of fees claimed by Mr. Daly,
the Department of Labor pay attorne fees in the amount of
$15,600 to Patrick E. Daly on or b
re Tuesday, August 30,
1983.

Jo eph B. Ken
Administrative
Distribution:
Patrick E. Daly, Esq., GAF Corporation, 140 West 51 St., New
York, NY 10020
(Certified Mail)
J. Phillip Smith, Esq., and Anna L. Wolgast, Esq., Office of
the Solicitor U.S. Department of Labor, 4015 Wilson Blvd.,
Arlington, VA 22203
(Certified Mail)
Mike Mathes, United Steelworkers of America, P.O. Box 351,
Ellington, MO 63638
(Certified Mail)

ejp

1358

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

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

JUL 2 8 1983

CIVIL PENALTY PROCEEDING
Docket No. CENT 82-31-M
A.C. No. 41-00059-05013

v.
Ogden Quarry & Plant Mine
SERVTEX MATERIALS COMPANY,
Respondent
DECISION
Appearances:

James J. Manzanares, Esq., Office of the Solicitor,
U. S. Department, Dallas, Texas,
for Petitioner;
Ed S. Chapline, III, Esq., Dallas, Texas,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and Health
Administration (MSHA), charges respondent, Servtex Materials Company,
( Servtex), with violating five safety regulations promulgated under the
Federal Mine Safety and Health Act, 30 U.S.C. § 801 ~seq. (the "Act").
After notice to the parties, a hearing on the merits was held in San
Antonio, Texas on November 30, 1982.
The parties filed post trial briefs.
Issues
1) Is the Secretary estopped from issuing citations for safety
violations when no citations for the same conditions were issued during
previous inspections?
2)

If not, did respondent violate the regulations?

3)

If a violation occurred, what penalties are appropriate?

1358

Synopsis of the Case
During an inspection in June 1981 of respondent's New Braunfels
facility (engaged in crushing limestone), MSHA Inspector Pascual Herrera
issue~ five citations under the authority of section 104(a) of the
Act. /The citations charge violations of the Act's safety regulations
due to an unguarded coupling, insufficiently guarded pulleys, as well as an
inadequate transformer fence.
Approximately fifty-three previous inspections of the facility by
Herrera and other MSHA inspectors had not resulted in the issuance of
citations for the violations charged in this case (Tr. 71). Petitioner seeks
an order affirming four citations and proposed civil penalties. Petitioner
also moved to vacate one of his citations.
Discussion
Failure of MSHA to issue citations at previous inspections.
As a threshold matter Servtex contends the citations are invalid. This
defense arises from the fact that on 53 prior inspections no citations were
issued on these conditions. Servtex suggests that Herrera's issuance of
citations for newly noticed safety violations demonstrates an incorrect use
of subjective standards and a minimal understanding of the operation and
function of the machinery involved, Servtex further contends that an
operator must rely, in part, on the results of previous inspections to
determine the efficiency of its compliance with safety regulations.
Servtex's arguments lack merit. The evidence of record does not support
Servtex. Further, the case law is contrary to that view. Generally, an
operator's reliance on prior inspections does not estop the Secretary from
bringing an action on newly discovered safety violations. Midwest Minerals,
Inc., 3 FMSHRC 251 (January 198l)(ALJ); Missouri Gravel Co., 3 FMSHRC 1465
(June 198l)(ALJ). Furthermore, Inspector's Herrera's 27 years of mine safety
experience, and an additional seven and a half years as a MSHA inspector
hardly suggest lack of knowledge and experience in dealing with mine
machinery and related safety issues (Tr. 10, 11).

1/

Section 104(a) provides 1n pertinent part:

If, upon inspection or investigation, the Secretary or his authorized
representative believes that an operator of a coal or other mine subject to
this Act has violated this Act, or any mandatory health or safety standard,
rule, order, or regulation promulgated pursuant to this Act, he shall, with
reasonable promptness, issue a citation to the operator. Each citation shall
be in writing and shall describe with particularity the nature of the
violation, including a reference to the provision of the Act, standard, rule,
regulation, or order alleged to have been violated. In addition, the
citation shall fix a reasonable time for the abatement of the violation.

The failure of previous inspections to result in the issuance of
citations for the safety violations charged in this case does not indicate
that the Servtex facility is in automatic compliance with the appropriate
safety regulations. It is necessary, then, to examine each of the citations
issued to determine if any violations occurred.
Citation 174561
Inspector Herrera issued this citation for an unguarded coupling on a
drill at Servtex;s plant. It alleges a violation of Title 30, C.F.R.,
Section 56.14-1 _/(Tr. 17, P2, P6).
Herrera testified that a six inch coupling connects and lies between the
V-belt drive shaft and the transmission. While the coupling on the drill is
only 18 inches from a walkway, it is separated from the walkway by a guard
for the V-belt drive; the guard is 14 to 15 inches high. The area is further
enclosed by a hand rail (Tr. 52).
Petitioner claims that a serious or fatal accident could occur if a
miner were to become entangled in the coupling due to a fall or in the
performance" of maintenance duties (Tr. 21).
In conflict with such testimony, Servtex claims that the coupling was
enclosed in a box-type guard, and was effectively separated from the walkway
by the 24 inch V-belt drive guard (Tr. 33). In addition, witness John Faust
(assistant plant manager) testified that an injury due to the coupling is
unlikely. The coupling moves only when the transmission is engaged by the
drill operator in the cab. In addition, the coupling is not serviced or
repaired while the drill is in operation (Tr. 87, 88).
I accept MSHA's evidence but a fair reading of the record and a study of
the drawing (P6) establishes that this coupling was guarded by location.
Section 30 C.F.R. 56.14-1 only requires guarding when the moving parts "may
be contacted by persons ... " It follows that when the Secretary charges a
violation of Section 56.14-1 he must show that the unguarded part may be
"contacted by persons." Kincheloe & Sons, Inc., 2 FMSHRC 1570 (June
1980)(ALJ).
In Applegate Aggregates 2 FMSHRC 2403 (August 1980) I vacated a citation
charging a violation of Section 56.14-1. In that case the unguarded machine
part was in a location where it was unlikely that a worker would come in
contact with it; further, a guard rail prevented ready access to the part;
in addition, the equipment was shut down when maintenance was performed.

2/

The cited section, 30 C.F.R. 56.14-1, provides as follows:
Mandatory. Gears; sprockets; chains; drive, head, tail and
takeup pulleys; flywheels; couplings; shaft; sawblades; fan
inlets; and similar exposed moving machine parts which may
be contacted by persons, and which may cause injury to persons,
shall be guarded.

13f)l

Similar facts exist tn this case. The coupling cited as a safety
violation is separated from the walkway by both a V-belt drive guard and a
hand rail, and it is not serviced while the drill is in operation. The
mandatory regulation was therefore improperly applied. Citation 174561
should be vacated.
Citation 174568
At the commencement of the hearing the Secretary moved to vacate this
citation (Tr. 7). The motion was granted and the order is formalized in this
decision (Tr. 8).
Citation 174569
This~citation

56.14-3.

JI

alleges a violation of Title 30, C.F.R., Section

The citation was issued for an insufficient guard at the head and tail
pulley on a reversible conveyor at Servtex's plant. Herrera testi~ied that
the guard extended eight inches above the pulley's top pinch point. But the
bottom pinch point was exposed as the pinch point was 3 1/2 feet beneath the
bottom of the guard. The exposed pinch point was adjacent to a walkway (Tr.
72, Exhibit P7).
Herrera stated that both pinch points subjected miners to potential
dangers. The guard extending above the pulley was felt to be inadequate
because the conveyor belt was smaller than the pulley, thereby creating an
exposed pinch point. A person performing service duties or removing debris
from the top of the conveyor could therefore be caught (Tr. 30). The
unguarded pinch point on the bottom of the pulley (and adjacent to the
walkway) exposed miners to potentially serious injuries should they fall or
reach into the area (Tr. 29).
Servtex offered evidence that the space between the shaft of the pulley
and the walkway was a distance of 20 to 24 inches and that the radius of the
pulley was approximately nine inches (Tr. 89, 100). I find additional

3/

The cited section 30 C.F.R. § 56.14-3 provides as follows:
Mandatory. Guards at conveyor-drive, conveyor-head, and
conveyor-tail pulleys shall extend a distance sufficient to
prevent a person from accidentally reaching behind the guard
and becoming caught between the belt and the pulley.

conflicting testimony offered by Servtex to be unconvincing. 4 / A
photograph of the pulley, offered by Servtex, does not shed light on the
dispute: the angle of the photograph and a person's foot effectively obstruct
the view of both the pulley and the alleged gap in the guard (Ekhibit R8).
I find from MSHA's evidence that: the bottom pinch point was a~proxi
mately 27 inches below the guard, and 15 inches above the walkway. I I
therefore accept MSHA's evidence that the bottom pinch point on the-pulley
was unguarded. The unguarded pinch point, adjacent to a walkway, posed a
foreseeable hazard to a miner's safety. It was readily accessible to mine~s
in the normal course of their duties, and was not indirectly guarded by
location. A previous case has upheld a citation issued for a similar
condition. Central Pre-Mix Concrete Co., 1 FMSHRC 1424 (September (1979)
(ALJ).
Citation 174569 should be affirmed.
Citation 174575
This citation also all6ges a violation of a mandatory safety standard,
30 C.F.R. Section 56.14-3. / Servtex is charged with failing to provide
an adequate head pulley guard.
Inspector Herrera testified that the 4 1/2 foot pulley guard extended
ten inches above the pinch point created by the pulley and conveyor belt (Tr.
58, 65). The width of the conveyor belt was smaller than that of the pulfoy,
creating an exposed area on each end of the pulley of about four inches (Tr.
34, 35). Such a situation created two pinch points and made the guard less
effective than it would have been if the conveyor belt and guard were
directly adjacent to one another (Tr. 29, 34). The pulley was surrounded on
three sides by a walkway (Tr. 35). Serious injuries could be suffered should
a miner fall against the exposed part of the pulley, or reach in and be
caught in the pinch point (Tr. 35).

4/ Respondent also claims that the bottom of the pulley and the lower pinch
point extend below the walk way, and that both pinch points were covered by a
guard (Tr. 89).
5/

Figures are derived from the following measurements:
(a) Distance from guard to walkway = 42"
(b) Distance from shaft of pulley to walkway = 24"
(c) Radius of pulley = 9"
(d) Distance between walkway and bottom of pulley (and pinch point)
= (b)-(c) = 15"
(e) Distance from bottom of guard and pinch point = (a)-(d) = 27".
(Transcript at 72, 89, 100, P7).

6/

The standard is cited in footnote 3.

1360

On the other hand, Servtex claims that its pulley guard was adequate.
It asserts that MSHA Management Letter No. 80-39 requires guards to extend
only "a distance sufficient to prevent a person from accidentally reaching
behind the guard· and becoming caught between the belt and the pulley."
Servtex also argues in its reply brief (page 2) that accidental contact with
the pinch points is "extremely unlikely" and that deliberate acts of reaching
over the guard cannot be prevented.
I disagree with Servtex's construction of the evidence. It is true that
it is unlikely that a miner would reach behind the guard and be caught in the
pinch point. But in the unguarded area contact could readily be made.
Exhibit P8 illustrates this point. A photograph of a pulley guard offered by
Servtex (Exhibit Rll) does not alter my conclusion, since statements made
during the hearing suggest that the pulley guard depicted in the photograph
was not the one cited by Herrera (Tr. 68).
The Commission case law establishes that where a miner can become entangled in pinch points during the ordinary course of duties then the
citation should be affirmed. Belcher Mine, Inc., 5 FMSHRC 584 (March 1983)
(ALJ); Central Pre-Mix Cement Co., 1 FMSHRC 1424 (September 1979)(ALJ).
Therefore, I accept Herrera's assessment of the hazard involved with the
head pulley guard. The potential of entanglement in the pinch point, even
though""extremely unlikely," does exist. Accordingly, Citation 174575 should
be aff:t;rmed.
This is an appropriate place to discuss the factual differences between
Citation 174561 and the remaining guarding citations. In citation 174561:
Exhibit P6 shows the coupling in this citation to be guarded by location. It
would virtually be impossible for a miner to be exposed to the hazard of the
unguarded coupling. On the other hand, exposed pinch points in the other
citations are not so guarded. In sum, the later violative conditions expose
a miner in the ordinary course of his work to the hazard of entanglement.
Citation 174573.
This citation charges respondent with a violation of Title 30, C.F.R.,
Section 56.12-67, 7_; due to an allegedly inadequate transformer fence.
The uncontroverted evidence establishes the following facts:
The fence around the transformer was 6 to 6 1/2 feet high (Tr. 39, 91).

7/

The section provides as follows:
Mandatory. Transformers shall be totally enclosed, or shall
be placed at least 8 feet above the ground, or installed in
a transformer house, or surrounded by a substantial fence at
least 6 feet high and at least 3 feet from any energized parts,
casings, or wirings.

A "muck pile" had been allowed to accumulate outside the fence, with
one foot to 18 inches of debris settling against the fence over a distance of
6 to 8 feet (Tr. 91, 121, P9).
The foregoing facts establish a violation of Section 56.12-67. The pile
of debris that had accumulated against the transformer fence effectively
reduced the fence's height to less than 6 feet. Therefore, Citation 174573
was properly issued, and it should be affirmed.
t.:ivil Penalties
Petitioner proposes the following civil penalties for the three
citations that are to be affirmed:
Citation 174569
174573
174575
Total

$98
60
44
$202

Section llO(i) [now 30 U.S.C. 820(i)] of the Act sets forth six criteria
to be considered in determining civil penalties:
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.
Concerning prior history: The MSHA computer printout indicates that
Servtex was assessed 22 violations from June 1979 to the beginning of June
1981 (Exhibit Pl). Fifteen citations were issued during June 1981, four of
which are at issue in this case (Tr. 15).
Concerning size: Servtex is a medium-sized operator. The evidence
indicates that 105 people are employed at Servtex's Ogden Quarry and Plant.
The number of man-hours worked was approximately 54,605 hours for the first
quarter of 1981 (Tr. 42, 43).
Concerning negligence: The violative conditions should have been obvious
to the operator.
Concerning the effect on operator's ability to continue in business:
This is essentially an affirmative issue to be established by the operator.
Buffalo Mining Co., 2 IBMA 226 (1973). Since no argument was advanced by
Servtex that payment of the proposed penalties would impair its ability to
continue in business, I assume that no such adverse affect will be suffered
through payment of assessed penalties.

136tJ

Concerning gravity: The gravity of each violation is moderate. Protective devices had been provided in each instance, but such devices were
insufficient.
Concerning good faith: The record establishes that Servtex promptly
abated the violative conditions.
After considering all the statutory criteria, I conclude that the
penalties proposed by petitioner for Citations 174569, 174575, and 174573 are
appropriate.
The Solicitor and Servtex's counsel filed detailed briefs which have
been most helpful in analyzing the record and defining the issues. I have
reviewed and considered these excellent briefs. However, to the extent they
are inconsistent with this decision, they are rejected.
Based on the findings of fact and conclusions of law herein, I enter the
the following:
ORDER
1.

Citations 174561 and all penalties therefor are vacated.

2.

Citation 174568 and all penalties therefor are vacated.

3.

Citation 174569 and the proposed penalty of $98 are affirmed.

4.

Citation 174573 and the proposed penalty of $60 are affirmed.

5.

Citation 174575 and the proposed penalty of $44 are affirmed.

6. Respondent 1.S ordered to pay the sum of $202 within forty (40) days
of the date of this order.

Distribution:
James J. Manzanares, Esq., (Certified Mail), Office of the Solicitor
United States Department of Labor, 555 Griffin Square, Suite 501
Dallas, Texas 75202
Mr. Ed S. Chapline, III (Certified Mail), Gifford Hill Corporation
8435 Stemmons Frwy., P.O. Box 47127
Dallas, Texas 75247

/blc

136()

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

RAY WARD,

JUL 2 9 191B

DISCRIMINATION PROCEEDING
Conplainant
Docket No. SE 82-55-D

v.
BARB CD 81-38
VOLUNl'EER MINING CORPORATICN,
Respondent
DECISION
This proceeding was brought by the Conplainant under section
105(c)(l) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
801 et~., seeking relief for alleged acts of discrimination.

Tre

case was heard at Knoxville, Tennessee.
Having considered the contentions of the parties and the record
as a 'Whole, I find that the preponderance of the reliable, probative,
and substantial evidence establishes the following:
FINDINGS OF FACT
1.

At all pertinent tines, Respondent cperated an underground

coal mine that produced coal for sale or use in or substantially
affecting interstate conrcerce.
2.

Conplainant was hired at Respondent's mine on CCtober 30,

1978, as an cperator of a continuous miner, a machine used to extract
coal, and operated such equipnEnt until April 10, 1981.

On that date,

Conplainant was tenporarily assigned to relieve a roof-bolter

operator, Paul McKarrey, \\ho left on sick leave.

Cooplainant had

severe stomach pains at that time, because of an ulcerous condition,
and was also upset by being assigned to run the roof bolter without
instruction as to the roof control plan.

He told his iITIITEdiate

supervisor that he was leaving the mine to talk to the mine
superintendent, Everett Davidson, because Canplainant needed to see a
doctor about his pain.
3~

He told Davidson that he needed to see a doctor because of

stomach pains and that he was upset about being assigned to the roof
bolter without training.

Davidson denied him sick leave and told him

that, as far as Davidson was concerned, Canplainant had quit his job.
Corrplainant saw a doctor for examination and treatrrent and later that
day, April 10, reported the job incident to the local off ice of the
Mine Safety and Health Administration, United States Deparbrent of
Labor (MSHA) •
4.

When Corrplainant reported for work the following

Monday, April 13, and was denied errployrrent, Corrplainant filed a
discrimination corrplaint with MSHA under section 105(c)(l) of the Act.
This complaint was settled by an agreerrent to reinstate Corrplainant
with back wages for 108 hours.

Canplainant interpreted the

agreerrent as a right to be reinstated in his regular position,
continuous miner operator, but the written agreerrent did not specify a
position in which he was to be reinstated.
5.

Corrplainant was reinstated on April 29, 1981.

His supervisor

told him that, since McKarrey was still on sick leave, Complainant
v.uuld be assigned to roof bolter until McKarrey returned, and the
supervisor estimated that McKarrey v-Duld be back in a few days.

1368

McKarrey returned to work in two or three days, but management
kept Complainant on the roof-bolter job.
6.

On July 10, 1981, Respondent laid off a number of miners,

including Corrplainant, for the stated reason that the section where
they v.ere working was being closed and sOIIE tirre would be needed
before a new section would open.
7.

All of the miners on Corrplainant's shift who v.ere laid off

v.ere later rehired except Corrplainant, and an additional employee was
hired after the layoff.
rehired v.ere:

The miners on Corrplainant's shift who v.ere

Paul McKarney, rehired on August 3, 1981, Herman

Carroll, rehired on August 3, 1981, Joe Ward, rehired on August 10,
1981, and Hoyle West, rehired on August 17, 1981.

Bayless Phillips,

Ca prior errployee), who was not errployed at the tirre of the layoff,
was hired on August 17, 1981.

D.Iring the layoff, Canplainant asked

Davidson for reinstatement but was not rehired; instead, Davidson told
him that he could not tell when or if he would be rehired and
recormended that Corrplainant seek employrrent elsewhere.
8.

The layoff on July 10, 1981, was the only layoff at the mine

in the tirre Corrplainant was errployed there.

The record does not

indicate whether or not there had been a layoff at the mine before
Corrplainant's errployrrent.
9.

At all pertinent tirres, Respondent' s employees did not have a

collective bargaining agreerrent.

Respondent paid all non-supervisory

miners the sarre rate, regardless of position or length of employrrent
with Respondent.

10.

During the period of Corrplainant's errployrrent by Respondent,

1368

until July 10, 1981, Respondent operated two coal-producing sections
on the day shift and one section on the night shift.
DISCUSSION 'WITH FURTHER FINDINGS
Section 105(c)(l) of the Act provides:
(c) (1) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal or other mine subject to this
Act because such miner, representative of miners or applicant
for employment has filed or made a comP.laint 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
miner, representative of miners or applicant for employment
has instituted or caused to be instituted any proceeding 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 or others of any statutory right afforded by
this Act.

This section protects a miner from discrimination because of
safety complaints or his exercise of other rights under the
statute.
Corrplainant's complaint to Respondent's mine rnanagerrent on April
10, 1981, and to MSHA later that day, because of his assignrrent to run
the roofbolter without adequate training, was a protected activity
under section 105(c) (1) of the Act.

His discrimination complaint on

April 13, 1981, filed 'with MSHA under section 105(c) (1) of the Act,
YS.S

also a protected activity under that section.
Complainant's regular job with Respondent, for over 2 1/2 years,

was a continuous miner operator.

He was hired for that position on

October 30, 1978, and perfonred this skilled position without incident
or any problem until April 10, 1981.
His first discrimination corrplaint was settled by

13'?0

Respondent's agreerrent to reinstate him with back pay for 108 hours
and Corrplainant's agreerent to drop the charges.
Pursuant to this settlerent, he was reinstated on April 29, 1981.
He was not reinstated in his regular position but was given a
terrporary assign.ItEnt to relieve Paul McKarcey as roof bolter until
McKarcey returned from sick leave.

Corrplainant' s supervisor, Otis

Cross, stated that this assign.ItEnt ~uld be only a few days, since
McKarcey was expected to return to ~rk in a few days.
The circumstances of the tenporary assign.ItEnt on April 29 raise a
suspicion of a discriminatory intent to penalize Carplainant because
of his prior safety and discrimination corrplaints.

Respcndent did not

show a legitimate business reason for this tenporary assign.ItEnt, to
explain why Corrplainant could not have reasonably been reinstated as a
continuous miner operator and another errployee assigned to the job of
roof bolter until McKarrey's return.
However, without resolving whether the April 29 terrporary
assign.ItEnt was discriminatory, I conclude that the pennanent
assign.ItEnt of Corrq;>lainant as a roof bolter helper, on or about May 4,
1981, w:i.s discriminatory.
When McKama::z returned in a few days, on or about May 4,
1981, Respondent did not return Corrplainant to his regular position of
continuous miner operator but, instead, made him a permanent roof
bolter helper.

I find that this assign.ItEnt was discriminatory, and

rrotivated by an intention to retaliate against Carplainant because of
his exercise of his rights under the statute on April 10 and April 13,
1981.

Respondent offered no credible business explantion for its

assign.ItEnt of Corrplainant as a roof bolter helper after M::Karrey

1371

returned, or· its transfer of Dolphus Carroll fran roof bolter to
continuous miner operator helper, in order to make Corrplainant a roof
bolter helper.

Carroll was not trained as a continuous miner

operator, but was an experienced roof bolter.

The assignrrent of him

as a continuous miner operator helper was contrary to Res_pondent's
practice of assigning two qualified continuous miner operators on the
sane shift, so that they could take turns as miner operator and
helper in order to achieve the best production.

Conplainant was a

qualified miner operator, and had worked effectively with Joe Ward,
another qualified miner operator, as a team for over two years and
nine nonths -

rotating with him as operator and helper.

The

disturbance of this assignrrent of the two miner operators, by noving
Carroll to miner operator helper, displaced Conplainant from his
regular _position with no showing of a legitimate business reason for
this job change.

I find that the permanent assignrrent of Conplainant

as a roof bolter operator or helper was discriminatory.

In addition,

I find that Davidson denonstrated a discriminatory intent toward
Corrplainant by his hostility in not talking to Corrplainant at various
times when Carplainant greeted him after Corrplainant's reinstaterrent.
This hostility is consistent with, and is further evidence of, an
intention by Davidson to discriminate against Conplainant because of
his prior discrimination corrplaint and safety canplaint.
The layoff on June 10, 1981, was for the purported reason that
the section where corrplainant's shift was mining was being closed and
sorre time was needed before a new section would be opened.

This

decision by Res_pondent was different from past practices, in that

1372

Davidson testified that he usually kept a crew on when a section was
being closed and gave them duties in order to keep their jobs while
the next section was being prepared for mining.

The decision to lay-

off Corrplainant's shift on July 10 raises a suspicion of a
discriminatory intent to use the layoff as a rreans of discharging
Corrplainant.

Ho~ver,

without resolving whether the layoff was

discriminatory, I conclude that the decision not to rehire Complainant
after the layoff was rcotivated by an intention to discriminiate
against him because of his prior discrimination complaint and safety
corrplaint.

Everyone on Complainant's shift who was laid off was later

rehired except Complainant, an additional errployee was hired in
preference to Corrplainant, Corrplainant requested but was denied
reerrployrrent during the layoff, and Respondent provided no credible,
legitimate business reason for its failure to rehire Complainant.

In

addition, as discussed above, there was discriminatory treatrrent of
Corrplainant before the layoff.
Corrplainant has not rret his burden of proof on the charge that
Respondent violated section 105(c)(l) by denying him the cpportunity
to IDrk overtirre after April 29, 1981.

His proof raises a suspicion

of a discriminatory intent to deny him overtirre cpportunities after
April 29, 19811J, b.lt Complainant did not prove sufficient facts to
1/ The errployrrent records show that, prior to April 29, 1981,
Corrplainant IDrked overtirre an average of about one week a rconth but
h= IDrked no overtirre from the tirre of his reinstaterrent on April 29,
1981, until his layoff on July 10, 1981; a number of errployees IDrked
overtirre both before April 29, 1981, and in the period from April 29,
1981, until July 10, 1981.

nake a prirna: facie case on this charge.

He did not prove either

Respondent's practice with respect to how overtirce asignnents were
made or any specific incidents in which Corrplainant requested but was
denied overtirce assignnents.
CONCLUSIONS OF LAW
1.

The judge has jurisdiction over this proceeding.

2.

Respondent violated section 105(c}(l) of the Act by failing

to assign Corrplainant to his regular position of continuous miner

operator on or about May 4, 1981, when Paul McKaney returned fran sick
leave.
3.

Respondent violated section 105 (c) (1) of the Act by

failing to reerrploy Corrplainant on and after August 3, 1981, when the
other errployees on layoff v.Bre reerrployed, and on August 17, 1981,
when Bayless Phillips was errployed.
4.

Corrplainant has not net his burden of proof on the charge

that Respondent violated section 105(c)(l) of the Act by denying
Corrplainant the cpportunity to work overtirce after April 29, 1981.
5.

Conplainant is entitled to reinstatement, back pay with

interest, a reasonable attorney's fee and costs, and such other relief
as may be deerred equitable and just.
Proposed findings of fact and conclusions of law inconsistent
with the above are rejected.
PENDING A FINAL ORDER

Jurisdiction of this proceeding is retained by the judge pending
a final order for relief.

Counsel for the parties should confer in an

effort to stipulate the anounts and other relief due under this
Decision.

Such stipulation will be without prejudice of Respondent's

1374

right to seek review of this Decision.
to file a proposed order,

Conplainant shall have 10 days

and Respondent shall have 10 days to reply

to Complainant's proposed order.

If necessary, a further hearing

will be held on issues relevant to relief.

-ul;,u.~
?6iMV~
William Fauver
Administrative Law Judge
Distribution Certified Mail:
Dorothy B. Stulberg, Esq., Mostoller and Stulberg, 100 Tulsa Road at
Illinois Avenue, Oak Ridge, TN 37830
Joseph H. Van Hook, Esq., Dra~r M, Oliver Springs, TN 37840

kg

1375

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

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

JOL 2 9 1983

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 82-184-M
A.C. No. 48-00144-05010
Sunrise Mine & Mill

C F & I STEEL CORPORATION,
Respondent
DECISION
Appearances:

Robert J. Lesnick, Esq., Office of the Solicitor
U. S. Department of Labor, Denver, Colorado
for Petitioner;
Allan R. Cooter, Esq., Pueblo, Colorado
for Respondent.

Before: Judge Carlson
The Secretary of Labor petitions this Cormnission for the affirmance of a
penalty assessed against C F & I Steel Corporation (CF&I) for the alleged
violation of 30 C.F.R. § 57.19-124, (1982) a safety regulation promulgated
under the Federal Mine Safety and Health Act, 30 U.S.C. § 801 ~seq. (1976
and Supp. 1982). The cited regulation provides as follows:
Mandatory. Hoist ropes other than those on friction hoists
shall be cut off at least six (6) feet above the highest
connection to the conveyance at time intervals not to exceed
one (1) year unless a shorter time is required by standard
57.19-126, or by conditions of use. The portion of the rope
that is cut off sh al 1 be examined by a competent person for
damage, corrosion, wear and fatigue.
After notice to the parties a hearing was held on February 2, 1983, in
Denver, Colorado. The parties stipulated to all the material facts. Certain
of the stipulations were oral; others were based upon agreement that all
factual representations contained in the pleadings and supporting documents
already in the file were true. Both parties submitted post-hearing briefs.
THE FACTS
The material facts as revealed by the stipulations may be sunnnarized as
follows:
(1)

CF&I's Sunrise mine is subject to the coverage of the Act.

(2) The Sunrise operation is large with an average history of
citations.

137b

(3) The mine hoist, a non-friction hoist, is the type of hoist
described in 30 C.F.R. § 57.19-124.
(4) On May· 21, 1981, CF&I filed a petition for modification of the
application of that standard, seeking to avoid the annual requirement for
cutting off a six foot length of hoist rope for inspection.
(5) CF&I sought this modification from the Secretary because the mine
was shut down on July 13, 1980, after which the hoist was used by eight to
ten maintenance people with an approximate frequency of five percent of the
normal operating use.
(6)

The rope was last replaced on June 20, 1980.

(7) On January 21, 1982, while CF&I's petition for modification was
pending, a representative of the Secretary inspected the mine and issued a
citation for violation of 30 C.F.R. § 57.19-124.
(8) In the year prior to inspection CF&I did not cut and examine the
rope as required by 30 C.F.R. § 57.19-124.
(9) At no time prior to the hearing did CF&I file an application for
interim relief under 30 C.F.R. § 44.16 ~seq.
(10) On March 18, 1982, CF&I received notice that its petition for
modification was denied.
(11) CF&I exercised good faith in abating the violation shortly after
receiving the inspection citation.
ISSUE
Does the pendency of a petition for modification, filed in good faith,
abrogate or limit the Secretary's authority to issue a valid citation for
violation of the standard from which the petitioner seeks relief?
DISCUSSION
CF&I sought its modification of the hoist rope standard because the
hoist in question received less-than-normal use and the hoist rope would
therefore suffer less-than-ordinary wear. In defense against the Secretary's
charge, CF&I basically argues that it was improper for the Secretary to issue
the citation for violation of 30 C.F.R. § 57.19-124 because it had a petition
for modification pending on that very regulation. Because of its good faith
in pursuing a variance in the application of the standard to the hoist in
question, and a reasonable expectation that it would ultimately be granted,
CF&I contends it should not be subject to a citation while a decision on the
modification request was pending.

1377

The difficulty with this argumenl is rrnnifest.
Ncith1.'r the Act nor th'~
Secretary's regulations relating to m1dificatinris provid~~ f•Jr any s11spension
l)f the Secretary's enforcement powers or duti~s whil.P. a rnf~re p8tition for
r;iodification is pendin~.
The regulations do pro-..ri.<ir~ an avenue of 1:elicf,
however, in the form of an application for interi.JT1 rr~li.cf, which may b~ filed
under 30 C.F.R.. § 44.16.
Such :rn application is adjunctive to the original
p·.~t it ion and opens the way for an admi.nistrat: ivc suspension of enforcement
pending a final determination on the petition itself.
llnfortunAtely, CF&I
failed to file an applicAtion for interim rr!lief.
In this present proceeding CF&l suggests that its original petition for
1n'l•ii.fication is the _equivalent of an interi1n npplicatitrn, or includes one by
irnplication. The argumi:nt cannot pre'.rai.l.
The provi3ions of 30 C.F.R.. 44.16
;,~rp.1ire extensive speci;;il showings of fact h'~Y'·)llr! those speci fi.ed for a
netition for modification.
Specifically, 30 C.F.R.. ~ 44.16(c) provides:
Before interim relief i.s granted, the ripplicanr- must clearly
show that (1) the petition seel<ing modi.fic-'lti0n h:is hcen filed
in good fA.ith, ;:ind the ;ipplic:i.nt is not 11sing thr> proceedi.:-ig
solely to postpone or avoid ah!lte1~P.nt; (2) th(~ u~q11ested re1 i.ef will not adversl'l.y affect the heril.th or saf·,ty 0f miners
in the affected min·~; and (3) t1H~re is a suhstanti;:il likelihood
that the decision on the merits of the petition for 1nl)<lific:ition
will he favorable to the applicant.
According to 30 C.F.R.. ~ !~IL l6(d) these representat:ions M:1st be ser- 011t and
c:uppor:-ted in the application.
T.n addi·~ion to th·~ rnure h11rilr'n~>•)l11~ spe•:ial
:;!1·T.Jings required, the intP.rim relief 1nc~chnni.s111 providi~s pr<>r:•~cl•.ir.11 safe~11:-1rcls t0 insure that the enf1)rcement pow•,!rs '>f tht:> ;,,~crr'tnry "1n~ not
'1:JS\J€~nded by uni. lateral act ion on tlw p"11·L of 'i r•-~t it i011i :ig party, to the
I' J ~ s i h 1e de t r i rn en t of the s !i fe t y of m i ., ~rs .
Sec t i on /1 4 . lf.i ( f) :i l lows a ll
parties three days in r,.,-11ich to respond to thi: int-J~rim :ipplicntion, -'Ind
Li4 • .l6(h) allows for speedy hearings up•rn any •Jf the is~"1es 1·aised. Thus, the
r~~g11lat:ions mnke a clear di_stinction h~twc•..!n a P'~tition f0r mnrli.fic::it:ion and
nn application for temporary relief.
The forn11;::r proci:ecls thro 1gh the various
prcicedural phases outlined in the Secr•~tary's regulations i.:i a vmy which does
nr)f: affect the interim enfor.cC'ahility ()f the standard in 'JlH~stion.
On the
other hand, the operator seeking tempnr.ary relief must supplement his
IT!Oci if icat ion efforts by special showin;~s and must he prcpareJ for a speedy
h1~aring in which the facts pertaining t.o all issues 1nny be :li red in an
adversarial setting. Only in this way can there he~ a 1"C"'.Vi•rnahle assuranc~~
that the s!lfety or health of 1TJiners wi. l l not he jeopard i?.<'d by a pr.ecipitous
-1nd unwarranted suspension of the Secr·~tary's cnfor.ce1;ient duties.
In short,
the difference between the petition fnr m()1iifi_cnr.-i.on and the nppli.c::ition for
interim relief is one of substance, nn1- 1ne1·0 no~rienclat-un~ or f1>rm.
For that
n~asrrn, CF'&l's petition f'Jr mtidificntirrn c.innnt he cnnst"rned tr) cmhndy an
implied request fur interim relief.
1

CF&I plac•~s m11ch empha:>is 11pon it:; ~!O<ld faith :ippn>n1·h t•l the hoist
rr'Jhlem, and its reasonahle E~xp•~ct.1.on if s11•:r:r~:;s in ir:-s 'Jttest f•Jr a

1378

modification. The case for modification doe~ indeed seem strong. These
factors, however, are simply not material to the issues before me. That CF&I
may ultimately have been successful cannot affect the outcome here. Its
miners, the Secretary, and other potential parties in interest were entitled
to notice of any intent to seek a suspension of the hoist rope standard
pending final action on the modification petition. That notice was required
to be in the form of a formal application for interim relief. No such
application was filed, and that oversight cannot be remedied in this present
penalty proceeding.
Similarly, it is not material that the petition for modification was
prepared pro se. It is likely true that had the company been aided by
counsel an application would have been filed. Pro se ·status, however, cannot
transform a petition for modification into an application for interim relief.
A further matter deserves note. After the hearing, CF&I submitted
copies of correspondence showing that the company had asked the Secretary for
further consideration of its modification request in view of MSHA's proposal
to eliminate the part of the standard which requires cutting of the rope for
examination. A letter to CF&I's General Superintendent by MSHA's Administrator for Metal & Nonmetal Mines dated March 14, 1983 appears to waive the
cutting requirement for March 29, 1983. This correspondence cannot influence
the outcome of this present proceeding. First, it was submitted after the
factual record was closed, and was accompanied by no motion to reopen the
record. Second, even if given consideration, MSHA's later action as to
respondent's 1983 responsibilities does not alter the previously discussed
legal precepts which govern the resolution of the issue before me.
PENALTY
The parties stipulate that if CF&I does not prevail upon the legal issue
presented here, the $90.00 proposed by the Secretary should be affirmed (Tr.
4). Since I find the citation valid, and conclude that the $90.00 proposed
penalty accords with the statutory criteria set out in section llO(i) of the
Act, CF&I shall be required to pay a civil penalty of $90.00
ORDER
CF&I is therefore ordered to pay to the Secretary a civil penalty of
$90.00 within 30 days of this decision.

Administrative Law Judge
Distribution:
Robert J. Lesnick, Esq., (Certified Mail), Office of the Solicitor
United States Department of Labor, 1585 Federal Building
1961 Stout Street, Denver, Colorado 80294
Allan R. Cotter, Esq.,(Certified Mail), P.O. Box 316, Pueblo, Colorado
81102
/blc

1378