August 1983
Commission Decisions
8-04-83
8-05-83
8-08-83
8-10-83
8-11-83
8-12-83

Earth Coal Co., Inc.
LAKE 83-32
Pg.
Inverness Mining Co.
LAKE 81-45-M
Pg.
MSHA ex rel. Bennett, Cox, et al. UMWA
WEST 80-489-D(A) Pg.
v. Emery Mining Corp.
Monterey Coal Co.
Pg.
LAKE 80-413-R
Emery Mining Corp.
Pg.
WEST 81-400-R
Local 1889 UMWA, MSHA v. Westmoreland Coal WEVA 81-256-C
Pg.

1383
1384
1391
1399
1400
1406

Administrative Law Judge Decisions
8-02-83
8-08-83
8-09-83
8-12-83
8-16-83
8-17-83
8-18-83
8-19-83
8-22-83
8-23-83
8-29-83
8-30-83
8-30-83
8-30-83
8-31-83
8-31-83

Consolidation Coal Co.
Nugent Sand Co., Inc.
Richard Klppstein & W.O. Pickett, Jr.
Richard D. Clemens v. Anaconda Minerals
Co.,(Atlantic Richfield Co.)
Calvin Black Enterprises
Old Ben Coal Co.
Old Ben Coal Co.
Riverside Clay Co.
Consolidation Coal Co.
Emery Mining Corp.
Yakima Cement Products Co., Inc.
Consolidation Coal Co.
U.S. Steel Mining Co., Inc.
Joseph D. Burns v. Asarco, Inc.
Nugent Sand Co., Inc.
Medusa Cement Co.

PENN 82-133
LAKE 83-57-M
WEST 81-383
WEST 81-298-DM

Pg.
Pg.
Pg.
Pg.

1416
1421
1424
1434

WEST 80-6-M
LAKE 82-79
LAKE 82-75-R
SE 81-62-M
WEVA 83-32
WEST 82-48
WEST 83-37-M
PENN 82-323-D
WEVA 82-387
YORK 82-19-DM
LAKE 83-57-M
LAKE 83-80-M

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

1440
1448
1454
1457
1463
1465
1468
1469
1474
1497
1512
1514

Commission Decisions

AUGUST
The following cases were Directed for Review during the month of August:
Secretary of Labor, MSHA v. Southwestern Illinois Coal Corporation, Docket
No. LAKE 82-38. (Judge Broderick, June 30, 1983)
Secretary of Labor, MSHA v. Earth Coal Company, Docket No. LAKE 83-32. (Judge
Merlin, Default Decision, June 28, 1983)
James Eldridge v. Sunfire Coal Company, Docket No. KENT 82-41-D. (Judge Koutras,
July 11, 1983)
Review was Denied in the following cases during the month of August:
Secretary of Labor, MSHA v. Monterey Coal Company, Docket Nos. LAKE 80-413-R,
LAKE 81-59. (Petition for Reconsideration of Commission Decision, June 13, 1983)
Secretary of Labor, MSHA v. Monterey Coal Company, Docket Nos. LAKE 82-82-R,
LAKE 82-97. (Judge Koutras, June 6, 1983)

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

20006

August 4, 1983

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

v.

Docket No. LAKE 83-32

EARTH COAL COMPANY, INC.
DIRECTION FOR REVIEW AND ORDER
The petition for discretionary review filed by the operator on July 27,
1983 is granted. We find the order of default entered by the chief
administrative law judge to have been appropriate under the circumstances
then before him. However, the operator, who is ~ se in this matter,
has made statements in the petition for review which the judge has not
had an opportunity to evaluate. Accordingly, the case is remanded to
the chief administrative law judge for such proceedings as he may deem
appropriate, including but not limited to actions to ascertain and
evaluate the operator's reasons for failing to respond to the judge's
April 26, 1983 Order to Show Cause.

~=

Richard V. Backley, Commissioner

A. E. Lawson, Commissioner

138~3
83-8-2

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

August 5, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. LAKE 81-45-M

INVERNESS MINING COMPANY
DECISION
This civil penalty case, arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et~· (1976 & Supp. V 1981),
presents the question of whether a Connnission administrative law judge
appropriately approved the parties' settlement motion. 1/ The operator,
Inverness Mining Company, filed a petition for discreti~nary review
complaining of various statements in the judge's decision. For the
reasons that follow, we affirm the judge's settlement approval as hereinafter modified.
Inverness operates an underground fluorspar mine in Illinois. On
August 4, 1980, a non-fatal roof fall accident occurred towards the end
of the second shift at the mine. A miner received injuries when a slab
of shale fell from the back or· face of the drift in which he was working.
It appears that during the preceding shift, the back and ribs of the
drift had been scaled or barred down--that is, loose shale had been
scraped away. The back was bolted up to the working face. It is not
clear whether the miners on the second shift engaged in any testing,
barring, or scaling in the drift, although they did visually examine
ground conditions. Conflicting pretrial statements were submitted
concerning the condition of the back and the face during the second
shift.
The day following the accident, an inspector from the Department of
Labor's Mine Safety and Health Administration (MSHA) arrived to conduct
an accident investigation. At the conclusion of his investigation, the
MSHA inspector issued to Inverness a section 104(a) citation, alleging a
violation of 30 C.F.R. § 57.3-22, a ground control standard, in

!/

The judge's decision is reported at 3 FMSHRC 2576 (November 1981)

(ALJ).

83-8-3

1384

connection with the accident. !:_/ The citation states in part, "The back
of the drift was not tested before the beginning of the work shift or
any time during the work shift." During his investigation the inspector
obtained oral statements from the victim, his co-worker, and the second
shift foreman. The gist of these statements was that no barring or
scaling had been done during the second shift, that the shale looked
pretty good, but that it was always hard to tell whether shale was in
fact as good as it looked.
During the close-out conference at the conclusion of the investigation, the inspector informed Inverness management officials of his
intention to issue a citation for failure to test the back during the
second shift. According to the inspector's field notes memorandum, the
mine manager and the mine superintendent exchanged words with the inspector concerning the citation. The inspector's memorandum states in
part:
At the close out confer[e]nce ••• [the mine manager]
said that I was out of line and that he was going to
take this to court and that he was going to call my
superviso[r]. I told him that it was all right with
me if he took the citation to court. He ask[ed] me
if I had ever worked around shale. I told him that
I had worked around shale a lot and that [is] why I
knew that you can not tell if the top is good just
by looking at it. [The mine superintendent] said
that the roof was checked by the foreman before the
shift started. I told him that the foreman by his
own statement said that he checked the roof by
looking at it, not testing it. [The superintendent]
said that he did not think it was right for me to
give them a citation and looked and sounded mad ••••
The inspector's subsequent formal accident report notes, however, that
the "cooperation of company officials and employees during this investigation is gratefully acknowledged."
On January 5, 1981, MSHA filed with the Commission its proposal for
a penalty, seeking a penalty of $2,500 for the~alleged violation. The
narrative findings for a special assessment, attached to the proposal,
allege that the gravity of the violation was serious and that the
violation resulted from the operator's negligence. Inverness filed an
answer, denying that it had violated the standard.

!:_/

Section 57.3-22 provides:
Mandatory. Miners shall examine and test the back, face, and
rib of their working places at the beginning of each shift and
frequently thereafter. Supervisors shall examine the ground
conditions during daily visits to insure that proper testing and
ground control practices are being followed. Loose ground shall be
taken down or adequately supported before any other work is done.
Ground conditions along haulageways and travelways shall be examined
periodically and scaled or supported as necessary.

1385

On February 6, 1981, the Commission administrative law judge issued
a notice of hearing and pretrial order which required the-parties to
make extensive submissions of information relevant to the case. In its
first response, Inverness contended that the back, ribs, and face of the
drift 'had been examined, tested, and scaled down prior to the accident.
The operator submitted a number of signed and notarized statements from
its employees obtained by Inverness' safety director.
'

In his statement, the victim claimed that there "was no loose stuff
on the walls whatsoever," that he and a co-worker made "a visual inspection of everything" when they started work, and that "you could tell
definitely that [the area] had been scaled down, and there was no loose
shale or rock hanging anywhere ••• that you could see." A statement
from the foreman on the preceding shift indicated that during that
shift, scaling and barring were done in the drift. In his statement,
the second shift foreman stated he "inspect[ed]" the drift at the start
of his shift, that the drift "was bolted right up to the working face,"
and that there "was no loose material hanging anywhere." Finally,
Inverness submitted the daily work inspection log, which includes
notations that preshif t and onshif t inspections were made in the drift
in question.
On October 13, 1981, following the various submissions summarized
above, the parties filed a jointly signed motion to dismiss and approve
settlement. The motion proposed an "agreed penalty" of $1,000. The
parties also stipulated that respondent demonstrated "ordinary or low
negligence." The parties made the following representations:
The company inspected the mine on a preshift inspection
and on a shift inspection as evidenced by the company
records presented in response to the Court's pretrial
order. This page was copied from the Work Inspection
Log of Inverness ••••
The statements ascertained by both [MSHA] and Inverness
are replete with contradictions. The Accident
Investigative Report concludes the cause of the accident was the failure of the miners to examine and test
the back and face of the drift and the failure of the
operator to insure that this was done. A reading of
the transcriptions of the tapes [of oral statements]
indicates that the face looked "pretty good, and the
injury occurred when [the victim's co-worker] scratched
the rock in one of the holes."
Every statement submitted by respondent conflicts with
the original statements made at the time of or near
the day of the accident. Each statement received from
the employees indicates that the drift had been scaled
down with the heading roofbolted .•• up to the working
face which is contradictory to the citation itself
which states that the back of the drift was not tested
before the beginning of the work shift.

138G

After the judge received the parties' motion, he engaged in telephone conversations with counsel for Inverness. In those conversations,
he indicated that he would not approve a $1,000 penalty and suggested a
$1,500 penalty instead. On October 31, 1981, Inverness' counsel sent
the judge a letter in which he stated:
Pursuant to our previous telephone conversation, I
am hereby confirming that the Inverness Mining
Compqny agrees to settle this matter by payment
of a $1,500 penalty rather than the $1,000 mentioned
in the Motion to Dismiss ••••
The judge granted the settlement motion, approved a $1,500 penalty,
and dismissed the case. In the course of granting the relief sought and
agreed to by the parties, the judge expressed certain opinions that are
the subject of Inverness' petition for review. First, the judge attributed the accident mainly to managerial production pressure and a lax
attitude towards safety:
The accident investigation established that at the
beginning and throughout the shift the miners and
their supervisor were at all times aware of the
fact that there was questionable shale at the back of
the drift, but tha~ due to the pressure to catch up
with production the miners and their supervisor decided to take a chance that it could be worked without testing. That this was in accord with the policy
of top management was established by the angry reaction
of the plant manager ••• and the superintendent •••
to the inspector's decision to issue the citation.
It is just this "take a chance" attitude toward safety
that leads to so many fatal and disabling accidents •••.
Here experienced miners were encouraged to ignore
sound safety practices because the top management of
a new operation was pushing for production.
3 FMSHRC at 2576.
Second, the judge accused the operator of questionable litigation
tactics:
Top management's attitude alone justified the penalty
of $2,500 originally proposed. Because of the effort
made to muddy the waters, MSHA proposed a settlement
of $1,000 or 40% of the amount initially proposed.
The trial judge rejected this and suggested $1,500.
This proposal was accepted by counsel for the operator
on October 31, 1981.
[I]t is my opinion that this operation bears close
scrutiny and that unless top management's attitude
changes serious violations will continue to occur.
I will expect that the next time around the Solicitor
will recognize that miners who are induced to contradict their contemporaneous statements are still

1387

reliable witnesses of what actually transpired and
that little weight is to be accorded self-serving
afterthought statements elicited under pressure from
the operator.
3 FMSHRC at 2576-77.
Inverness ultimately asks the Commission on review "to set aside
the decision and order entered by the [judge] insofar as his conclusions
are inconsis·tent with the motion to dismiss and approve settlement."
Petition at 9 (emphasis added). Inverness does not request the Commission to reduce or to vacate the $1,500 penalty. l_/
We have examined the record, the salient portions of which are
summarized above, and fail to find evidentiary support for the judge's
critical comments. No statement lends support to his observation that
this particular operator had a "take a chance" attitude towards safety
out of its desire or policy to increase production. The "angry"
reaction of company officials to the citation seems nothing more than
the exchange of disagreements to be expected at many close-out conferences. Certainly, operators have the right to take MSHA "to court."
The inspector himself in his accident report expressly thanked Inverness
officials for their cooperation with his investigation. Similarly,
there is nothing in the record that indicates Inverness' employees were
"pressured" to change their statements in an effort "to muddy the
waters." The statements do conflict, but only trial and cross-examination could have revealed the credibility of the employees and the
veracity of their various statements. Accordingly, we disapprove and
strike, for lack of record foundation, the judge's criticisms of the
operator's safety attitudes and litigation tactics contained in the
passages from the three paragraphs of his decision quoted above.

3/
The operator states that "it is interesting to note the circumS-tances under which [the] $1,500 [penalty] was arrived at." Petition at
2. Inverness points to its request that the hearing be held in Indiana,
and then refers to the judge's telephone calls on the subject of settlement. The operator alleges that the judge "suggested" a $1,500 penalty
"or else a prehearing conference would be held in Washington, D.c.,· and
thereafter a hearing would be held in Washington, D.C. The Inverness
Mining Company, recognizing the economics of the 'choice' that [the
judge] 'suggested,' reluctantly consented to a $1,500 settlement figure."
Petition at 2-3. After review was granted, the judge filed with the
Commission his own affidavit, in which he denied pressuring Inverness to
settle. Inverness does not present any due process argument in connection with this incident. While we need not address this matter in
detail, it illustrates the risk of possible misunderstandings, conflicting interpretations, and differing recollections, resulting from a
judge's telephonic communications on such matters with one party off the
formal record. Such a practice is not condoned or approved by this
Commission. See generally Knox County Stone Co., Inc., 3 FMSHRC 2478
(November 1981).

1388

No party objects to the remainder of the judge's decision, and it
is supported by the record. The parties agreed to a $1,500 penalty and,
among other things, stipulated to the operator's negligence. The mine
did not have a significant prior history of violations. Based on our
review of the record, we conclude that the penalty is consistent with
the six statutory penalty criteria. 30 U.S.C. § 820(i)(Supp. V 1981).
Therefore, we affirm the judge's settlement approval on the narrow
grounds on which it actually rests.
For the foregoing reasons, we affirm the judge's approval of the
$1,500 penalty in settlement of this case as modified.

A. E. Lawson, Commissioner

'J-~11.u~

L. Clair Nelson, Commissioner

1389

· Distribution
Linda Leasure
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Gordon E. Maag, Esq.
Walker and Williams
4343 West Main Street
Belleville, Illinois 62223
John Mcclurg, President
Seaforth Mineral & Ore Co., Inc.
P.O. Box 22290
Cleveland, Ohio 44122
Administrative Law Judge Joseph Kennedy
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

1380

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

August 8, 1983
SECRETARY OF LABOR,
MINE SAFETY AND·HEALTH
ADMINISTRATION (MSHA),
EX REL. BENNETT,. COX, ET AL.
Docket No. WEST 80-489-D(A)
UNITED MINE WORKERS OF AMERICA,
Intervenor
v.

EMERY MINING 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 sections _115 and 105(c) of the Act. An administrative
law judge of this Commission determined that section 115(b) imposed an
obligation on operators to provide and pay for new miner training and,
as a corollary, granted miners a statutorily protected right to receive
training. He concluded that Emery's policy of requiring job applicants
to have 32.hours of miner training as a qualification for employment
denied them their right to receive such training, and discriminated
against them in violation of section 105(c) of the Act. ];./
For the reasons that follow, we affirm the judge's conclusion that
Emery violated the Mine Act, but do not agree with his determination
that Emery's hiring qualifications policy constituted a per se violation
of the Act. Rather, we hold that Emery violated the Act by refusing to
reimburse the complainants for wages for the time spent in training and
the cost of their training, while relying on that training, following
their employment by Emery, to fulfill the requirements of section 115.
The facts in this case are uncontroverted. The twelve complainants
are employed as underground miners by Emery Mining Corporation.

1/
The judge's decision is reported at 3 FMSHRC 2648 (November 1981)
(ALJ). After the hearing before the judge, the Secretary was granted
leave to amend his complaint to add 127 complainants. The judge then
severed the amended complaint from the present case and assigned it
docket number WEST 80-489-D(B). 3 FMSHRC at 2659-60. That case is now
pending before the administrative law judge.

1391

83-8-4

As a pre-condition for employment, Emery required completion of 32 hours
of safety ~raining for underground miners at an MSHA-approv~d miners'
training course. 3 FMSHRC at 2650. 2/ Emery did not reimburse those
hired either for the cost of the training or pay wages for the hours
spent in training. Emery did, however, rely on the training tha~ new
hires had acquired, at their own expense, to satisfy the training
requirements of the Mine Act.
Emery's policy 6f accepting applications only from those who had
completed a training course began Jpnuary 1, 1980. Prior to that time,
Emery sent newly hired miners to the College of Eastern Utah for training,
and gave the requisite further training at Emery's facilities. 3 FMSHRC
at 2653. The judge found, "The new policy was that no person would be
hired unless he had completed a new miner orientation program through an
MSHA approved institution (Tr. 82)." 3 FMSHRC at 2654. 3/ The judge
further found; "The reason for Emery's change in personnel policy was
to screen out those persons who weren't interested in a mining career
and thereby reduce the turnover rate (Tr. 89, 96)." Id.
The complainants in this cas~ successfully completed the training
courses at their own expense. The record shows the costs to eight of
the complainants for tuition as well as estimates of their transportation
expenses to and from the courses. 3 FMSHRC at 2651-54. For two of the
twelve complainants, the cost of motel rooms and meals is in the record,
and another of the complainants testified to the cost of four lunches.
3 FMSHRC at 2652. Upon completion of training, Emery checked the
complainants' references and, after physical examinations, they were
hired. 3 FMSHRC at 2650. The starting wage for each complainant is
in the record.
The judge first examined section 115 of the Mine Act and the legislative history relating to miner training in order to determine the
statutory rights granted to miners by that section, and whether Emery's
policy was in violation thereof. !:!:../ He concluded that section 115 places
2/
In addition to notifying applicants for employment who came directly
to the mine of its policy, Emery also notified the State of Utah's Job
Service which often referred job applicants to Emery. Of the complainants
in this case, five went to Emery and were informed of its policy, and
three went to Job Service and were told there that 32 hours of miner
training was required. There is no information on this point concerning the four remaining complainants.
3/
Emery had experienced a high turnover rate of 48% during 1979 among
its inexperienced miners. Emery hired 450 miners and 190 terminated in
the first 3 months. The judge found that the turnover rate was reduc~d . .
to 25% after January 1980, but also found that the evidence did not reveal
the exact cause of the reduction.
!±_/
Section 115 states in part:
(a) Each operator of a coal or other mine shall .have a
health and safety training program which shall be
approved by the Secretary •••• Each training program
approved by the Secretary shall provide as a minimum
that ·
(Foot~ote continued)

the responsibility for, and the cost of, training miners on the operator. The section also requires that new miners be provided with 40 hours
of training. The judge held that by requiring its prospective miners to
obtain 32 hours of pre-employment training, Emery left itself responsible
for only eight hours of training, and improperly shifted the burden of
those 32 hours of training to the complainants. 3 FMSHRC at 2654-55, 2659.
The judge further held that the requirements of section 115(b) were not
satisfied by Emery because the complainants did not receive any compensation while they attended their training courses, and were not reimbursed
for costs of attending the training. 3 FMSHRC at 2655. The judge found
that the legislative history of the Mine Act supported his interpretation
of section 115. He held that Emery's policy "clearly violate[d] section
115 of the Act." 3 FMSHRC at 2659.
The judge next considered whether the company's policy "constitute[d]
a discriminatory practice under Section 105(c) of the Act." 3 FMSHRC
at 2656. 5/ The judge held that the complainants were "applicants
Fn. 4/ continued
(1) new miners having no underground mining
experience shall receive no less than 40 hours
of training if they are to work underground.

5/

(b) Any health and safety training provided under subsection {a) shall be provided during normal working
hours. Miners shall be paid at their normal rate of
compensation while they take such training, and new
miners shall be paid at their starting wage rate
when they take the new miner training. If such
training shall be given at a location other than the
normal place of work, miners shall also be compensated
for the additional costs they may incur in attending
such training sessions.
Section 105(c)(l) provides in part:
No person shall discharge or in any manner discriminate
against ·•· or otherwise interfere with the exercise of
the statutory rights of any miner, representative of
miners or applicant for employment in any coal or other
mine subject to this Act because such miner, representative of miners or applicant for employment has filed or
made a complaint under or related to this Act, ••• or
because such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential transfer ••• 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 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.

139J

for employment" under section 105(c). 3 FMSHRC at 2656-57. He noted the
broad scope of the discrimination section and its express ·inclusion of
"applicants for employment" in its coverage. The judge held that the
statutory right to safety training and compensation is therefore protected from interference by section 105(c) of the Act, and Emery
discriminated against the complainants by requiring them to secure
training on their time at their expense. 3 FMSHRC at 2657.
The judge awarded each miner compensation at his starting rate
for the four days of training, the amount of tuition paid, and the
expenses incur.red in taking the training course plus 12.5% interest.
A penalty of $1,000 for the violation of section 105(c) was assessed
also. 6/
We granted Emery's petition for review, and allowed the United Mine
Workers of America to intervene. Oral argument was heard before us on
October 20, 1982. The questions on review are: What rights are granted
to miners by section 115 of the Act; whether Emery interfered with those
rights in violation of the Act; and, if interference is shown, what
remedy is due the complainants. We turn to examination of the first two
issues, and will address the remedy separately.
Section 115 sets forth miner training requirements under the Mine
Act. It neither dictates whom an operator should hire, nor refers
to qualifications for hire. Indeed, the parties and the judge agree
than an operator could hire only experienced miners and not run afoul
of section 115. In this case, however, we are concerned specifically
with section 115's requirements for training "new miners."
Section 115(a) requires operators to have an approved health and
safety program that provides 40 hours of training to "new miners" who
will work underground. It also mandates that an operator who hires
new miners. pay them at their "starting wage rate" while they are being
trained, and compensate them for "additional costs" incurred in receiving training away from the mine. Section 115(b). Section 115 does not
refer to a new miner's duty to obtain training but rather to an
operator's responsibility to provide it.
The legislative history
of this section also demonstrates that the responsibility to ensure
that new miners are trained unquestionably is imposed by statute upon
the operator. See S. Rep. No. 181, 95th Cong., 1st Sess. 50 (1977),
reprinted in Senate Subcommittee on Labor, Committee on Human Resources,
95th Cong.-,-2d Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 638 (1978)("Legis. Hist"); S. Conf. Rep. 461,
95th Cong., 1st Sess., 61-63 (1977), reprinted in Legis. Hist. 1339-41.
Further, this section imposes a duty on the operator to see that new
miners are trained before they begin their mining tasks. See National
Indus. Sand Ass'n. v. Marshall, 601 F.2d 689, 710 (3d Cir.-:l979).

2/

6/
No issues concerning the rate of interest assessed on the awards
or the penalty are presented on review.
7/
Similarly, section 104(g) of the Mine Act protects from retaliation
miners who are discovered working without the required training; it also
requires an operator to pay a miner removed from the mine under 104(g)
while that miner receives the necessary training.

13~4

We conclude that section 115 grants two separate, related rights
to new miners: To receive 40 hours of safety training before working
underground and to be compensated for the time and expenses of that
training by the mine operator. The right to training is assured by
section 115(a). The right to compensation for the time and expenses
of training is specifically provided in section 115(b). As we discuss
more fully below, failure to compensate miners for the time and costs
of training relied upon by an operator to fulfill its statutory obligations interferes with the new miners' rights. Here the complainants
had been hired by Emery and worked in Emery's mine. They were all
inexperienced miners when they took the training course and Emery was
their first employer after they received safety training. Thus, once
hired, they became new miners under the Act entitled to the rights
granted by section 115(a) and (b).
Section 105(c)(l) of the Mine Act prohibits interference with rights
provided by the Act, including rights provided under section 115. The
Senate Committee on Human Resources, which largely drafted the bill that
became the Mine Act, specifically mentioned safety training in discussing
the discrimination section of that bill:
The Committee also intends to cover within the ambit of
this protection any discrimination against a miner which
is the result of the safety training provisions of section
11[5] or the enforcement of those provisions under section
10 [ 4] [ g] •
Legis. Hist. 624. Further, as we noted in Moses v. Whitley Development,
4 FMSHRC 1475, 1478 (August 1982), Congress expressed in the same passage
of legislative history its intention that section 105 protect miners "not
only against the common forms of discrimination, such as discharge,
suspension, demotion ••• , but also against the more subtle forms of
interference •••• " Id. Thus, section 105(c) prohibits denial of or
interference with the right to receive safety training. We next
consider the specific question of whether Emery interfered with these
complainants' rights by requiring them to obtain training prior to
applying for employment, and by relying on, and refusing to reimburse
them for, their training after hiring them.
Initially we note our divergence from the judge's conclusion that
Emery's policy of requiring the training prior to employment violated
the Mine Act. An employer has the right to choose its employees. See
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45-46 (1937). This
principle has been stated succinctly as follows: "[A]n employer may
exercise its right to refuse to hire for any reason or no reason at all
as long as statutory or constitutional provisions are not violated."
Carter v. Seaboard Coast Line Railroad Co., 392 F. Supp. 494, 499 (S.D.
Ga. 1974). Further, statutes that potentially limit an employer's right
to select its employees, for example Title VII, are not violated when an
employer refuses to hire an applicant protected by such an Act because
the applicant lacks bona fide occupational qualifications. See,~··
Griggs v. Duke Power Co., 401 U.S. 424, 436 (1971). We believe that in

the Mine Act Congress did not restrict a mine operator's prerogative of
setting pre-employment qualifications based on experience or training.
Thus, Emery's policy of requiring inexperienced job applicants to obtain
32 hours of MSHA-approved training prior to hire does not violate the
Mine Act.
Emery did, however, violate section 105(c) when, after hiring the
complainants as new miners, it refused to compensate the miners for
their 32 hours of training and yet relied on that training to satisfy
its training obligations to them under section 115. Emery provided
only eight of the forty hours of training required by section 115(a);
the operator relied on the prehire 32 hours of training for which the
complainants themselves had paid to comply with the full requirements
of the Act. (Emery supplied the 8 hours of mine-specific training
required by section 115(a)(5) and 30 C.F.R. § 48.5.) Emery thus
attempted to discharge its statutory obligations by obtaining the
"benefit" of the new miners' prehire MSHA training without reimbursing them for the cost of that training. This action circumvented the
statutory mandate that operators provide and pay for new miners'
training, and thus interfered with the new miners' rights under section
115 in violation of section 105(c)(l). If Emery's approach to compliance
with section 115 were adopted throughout the mining industry, section 115
would effectively be read out of the Act and the cost of training would
be shifted from operators to miners. In short, if Emery wished to rely
on the prehire training to satisfy its statutory obligation to provide
training for new miners, it must compensate the new miners for that
training.
We emphasize that our decision is limited to the facts of this case:
Emery was the first operator for whom these new miners worked upon completing their 32 hours of training; they undertook the prehire training because
of Emery's hiring policies; the complainants were not reimbursed for their
training after hire; and Emery took advantage of that unreimbursed training
to attempt. to comply with section 115. Emery, in effect, "provided" that
training under section 115. Therefore, under section 115(b), Emery must
reimburse the complainants for the cost of their training, and the equivalent of wages for four days, at their starting pay rate, for the time
spent in training.
We also emphasize that none of the Secretary's otherwise extensive
training regulations at 30 C.F.R. Part 48 addresses the situation encountered
in this case. Our decision therefore is based on the statute; there simply
is no relevant training regulation bearing directly on the issue.
We now turn to the remedial aspects of the judge's decision. The
judge awarded each miner the amount of tuition paid for the training
course which that person attended and four day's wages at the starting
wage rate. He also awarded some miners the expenses incurred in attending
the courses, including an allowance for mileage for six miners, the cost
of meals and a motel for two miners, and the cost of meals alone for one
miner. Emery does not challenge the amount of tuition or back pay awarded,
but rather argues in its petition for review and accompanying briefs
that the judge erred in calculating the amount of other expenses to be

reimbursed to ·the complainants. Emery urges that, under section llS(b),
the miners are entitled only to those expenses "above and beyond that
which an individual would have incurred had he taken the training at
the mine." Emery br. at 13.
At the hearing, counsel for the Secretary introduced evidence on
the distance each miner traveled, the tuition fee paid, and incidental
expenses. This was received into the record without objection and was
before the judge when he made his findings. The issue now raised was
not first presented to the judge below. The question of appropriate
remedy, therefore, is not properly before us in this case. See section
113(d)(2)(A)(iii) of the Mine Act. Accordingly, we do not disturb the
judge's award of damages, and leave for another day discussion of the
correct measure of relief for similar violations of section 105(c)
and/or 115 of the Mine Act.
On the bases explained above, we affirm the decision of the
administrative law judge.

y
I

139/

Distribution
Linda Leasure
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Timothy M. Biddle, Esq.
Crowell & Moring
1100 Connecticut Ave., N.W.
Washington, D.C. 20036
Mary Lu Jordan
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
333 West Colfax, Suite 400
Denver, Colorado 80204

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

August 10, 1983

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. LAKE 80-413-R
LAKE 81-59

v.

MONTEREY COAL COMPANY

ORDER

Upon consideration of the petition for reconsideration of the
Commission's June 13, 1983, decision in this matter, and the opposition
thereto, the petition is denied. The request for reconsideration
identifies no material factual or legal issue that was not fully
considered, addressed, and resolved by the Commission. Therefore,
further consideration by us is not warranted.
1

!

[~J,.d~u--

Rosemary: Collyer, Gairman

L. Clair Nelson, Commissioner

1398

83-8-5

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

August 11, 19.83
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,,, {MSHA) ,
Docket Nos.

v.

EMERY MINING CORPORATION

WEST 81-400-R
WEST 82-48
WEST 82-80

DECISION
This consolidated proceeding under the 1977 Mine Act, 30 U.S.C.
801 et~· (1976 & Supp. V 1981), involves the interpretation and
application of 30 C.F.R. § 48.8(a). The cited mandatory standard
provides that:
§

Each miner shall receive a minimum of 8 hours of
annual refresher training as prescribed in this
section.
The administrative law judge concluded that the regulation requires that
refresher training be given once every calendar year, and dismissed the
proceeding because the calendar year in question had not ended when the
Secretary of Labor issued the withdrawal order that initiated the case.
4 FMSHRC 1450 (July 1982)(ALJ). For the reasons set forth below, we
reverse and hold that the key language, "annual refresher training,"
means that refresher training is to occur within twelve months of the
last received training.
The essential facts are not in dispute. On September 9, 1981, a
Mine Safety and Health Administration ("MSHA") inspector issued Emery
Mining Corporation a withdrawal order under section 104(g)(l) of the
Mine.Act. 1/ The order stated that five of Emery's miners at one of its
underground mines had not received the minimum 8 hours of annual refresher
training. The five miners had all received refresher training in June
1980. Thus, at the time of the withdrawal order, fifteen months had
elapsed since their last training.

!/

Section 104(g)(l)(30 U.S.C. § 814(g)(l)) directs the Secretary to
issue a withdrawal order withdrawing miners from a mine if the Secretary
finds that the miners have not received their requisite training under
section 115 of the Act (30 U.S.C. § 825).

83-8-6

The administrative law judge concluded that complianc~ with section
48.8(a) is achieved if retraining occurs by December 31 of the calendar
year following the calendar year in which the last training had been
given. Tde judge acknowledged that Congress may have intended that refresher training be given within twelve months of the previous training.
However, he determined that section 48.8(a) controlled and that the
regulation mandates only calendar-year training. In reaching this conclusion, the judge relied upon language in some of the Secretary's other
regulations dealing with the training of miners as well as on Emery's
training plan app:;.:oved by MSHA. He specifically found that Emery had
notified MSHA that training would be given "By December 31st Annually"
on the MSHA form asking "PREDICTED TIME WHEN REGULARLY SCHEDULED REFRESHER TRAINING WILL BE GIVEN." Since this response was approved by
MSHA, the judge concluded that only calendar year retraining was mandated.
He then applied these findings and conclusions to the sequence of
training dates for the five miners involved and held that Emery had not
violated section 48.8(a) as to any of the miners. We disagree.
The regulation must be interpreted in light of the statutory provisions that it implements. Section 115(a)(3) of the Mine Act states in
relevant part:
Each operator of a coal or other mine shall have
a health and safety training program which shall be
approved by the Secretary. The Secretary shall promulgate regulations with respect to such health and
safety training programs not more than 180 days after
the effective date of the Federal Mine Safety and
Health Amendments Act of 1977. Each training program
approved by the Secretary shall provide as a minimum
that--

(3) all miners shall receive no less than eight
hours of refresher training no less frequently than
once each 12 months, except that miners already employed on the effective date of the Federal Mine
Safety and Health Amendments Act of 1977 shall receive
this refresher training no more than 90 days after
the date of approval of the training plan required by
this section •..•
30 U.S.C. § 825(a)(3)(emphasis added.) We first construe the meaning of
the statutory words, "no less frequently than once each 12 months."

1401

The overall scheme of section.115 is one of sequential, periodic
training. A new mirier receives 40 hours of training if he is to work
underground, or 24 hours if he is to wor_k on the surface. Sections
115(a)(l) & (2). J:/ All miners thereafter must receive at least 8 hours
of refre~her training, in accordance with the requirement stated in
section 115 (a) (3), supra. To determine the timing for refres_her training
"no less frequently than once each twelve months," an operator necessarily
must determine when the previous training session occurred. Thus, the
scheduling of refresher training is dependent upon a sp~cific event or
date -- that is, a miner receives refresher training "no less frequently
than once each t\;elve months" from the completion of the previous training
session. This interpretation of the statutory words accords with well
established principles of construction that periods of time associated
with an event or contingency ordinarily imply an anniversary connotation.
See, for example, Matter of PRS Products, Inc., 574 F.2d 414, 419 (8th
Cir. 1978). More important, a twelve-month interval between training
sessions far better accomplishes the safety objectives of section 115
and the Mine Act as a whole than a calendar-year approach, which could
permit almost twenty-four month intervals between training.
Because the regulation in issue was promulgated to effectuate the
statute, we therefore apply to the regulation the same anniversary
interpretation given its statutory counterpart. The operator contends
that the Secretary's choice of "annual" as a "catchword for the corresponding statutory phrase" (Sec'y Br. at 6) renders the regulation
unclear on its face. Although "annual" could refer to twelve-month

2/

Sections 115(a)(l) & (2) provide:
••• Each training program approved by the Secretary shall provide
as a minimum that-(1) new miners having no underground mining experience shall
receive no less than 40 hours of training if they are to work
underground. Such training shall include instruction in the
statutory rights of miners and their representatives under this
Act, use of the self-rescue device and use of respiratory devices,
hazard recognition, escapeways, walk around training, emergency
procedures, basic ventilation, basic roof control, electrical
hazards, first aid, and the health and safety aspects of the task
to which he will be assigned;

(2) new miners having no surf ace mining experience shall receive no less than 24 hours of training if they are to work
on the surface. Such training shall include instruction in
the statutory rights of miners and their representatives under
this Act, use of the self-rescue device where appropriate, hazard
recognition, emergency procedure electrical hazards, first aid,
walk around training and the health and safety aspects of the
task to which he will be assigned •..•
30 U.S.C. §§ 825(a)(l) & (2).

1 '1 'l\.; {',,')
~

intervals, it might also be construed to connote a calendar year beginning
January 1 and ending December 31. However, when "annual"· is read, as it
must be, in conjunction with the clear statutory mandate for refresher
training at twelve-month intervals, any possible facial ambiguity is
dissipated. We therefore hold that 30 C.F.R. § 48.8(a), implementing
section 115 of the Act, requires refresher training to be given within
twelve months of the last received training. In view of our decision,
the Secretary may wish to consider clarifying the regulation through
amendment.
We also rej~ct Emery's argument that MSHA's approval of its training
plan constituted a "contemporaneous construction" of the regulation in
favor of a calendar year interpretation. The judge found that MSHA's
approval of Emery's insertion of the words, "By December 31st Annually",
in provision number 6 of the plan was tantamount to approval of refresher
training on a calendar-year basis. Substantial evidence does not
support the conclusion that MSHA knowingly agreed to a retraining plan
on a calendar-year basis. Emery and MSHA officials appear to have read
provision number 6 to mean the date when Emery would notify MSHA of the
specific dates that its miners would undergo refresher training, rather
than a date specifying when each miner's refresher training was to
occur. ]_/ One Emery witness testified that an MSHA representative at a
joint meeting of MSHA and Emery officials envisioned that there would be
a number of notifications coming out throughout the year as refresher
training for miners arose. Tr. 76-77. Moreover, the simple act of

)_/

For example, Emery's assistant training director testified:

Q.

[B]ut putting one date in there that just happened to be the
last date of the year did not resolve that, did it?

A.

Resolve what?

Q.

The agency's problem. That plan does not put them on notice
when a refresher training is going to take place, does it?

A.

No, it does not.

*

Not the December 31st date.

*

*

*

Q.

[A]nd the fact that the agency was concerned about when they
would be notified of a refresher training does not even touch
on the subject of the period in between the refresher training
does it?

A.

No, it doesn't.

Tr. 63, 64.

140 . ~

approving one operator's training plan would not constitute a dispositive or consistently-applied national pronouncement by the administrative agency that would amount to a "contemporaneous construction" of
the regulation. See Florence Mining Co., 5 FMSHRC 189, 196 (February
1983), petition for review filed, 3rd Cir., March 15, 1983; King Knob
Coal Co., 3 FMSHRC 1417, 1420-21 (June 1981).
Emery's "contemporaneous construction" claim could also be read as
an estoppel defense, in that MSHA's approval of Emery's training plan,
assuming it provided for calendar year retraining, estopped the Secretary
from enforcing section 48.8(a) against Emery. We adhere to our position
in King Knob Coal Company, supra, that under Federal Crop Insurance Corp.
v. Merrill, 332 U.S. 381 (1947), estoppel does not run against the
federal government. 3 FMSHRC at 1421-22. We note, however, that some
confusion did surround MSHA's approval of Emery's training plan, and the
government appears partly responsible for the situation. In King Knob,
we held that confusing governmental enforcement mitigated the degree of
an operator's negligence in the assessment of civil penalty. 3 FMSHRC
at 1422-23. On remand, the judge can apply this mitigating principle
in assessing Emery's negligence.
For the foregoing reasons, we reverse the judge's decision. The
stipulated facts show a violation of section 48.8(a) as to the five
miners in question. We remand for a determination of penalty in light
of our decision in King Knob.

L. Clair Nelson, Commissioner

Distribution
Linda Leasure
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Timothy M. Biddle, Esq.
Crowell & Moring
1100 Connecticut Ave., N.W.
Washington, D.C.
Mary Lu Jordan

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

20005

Administrative Law Judge Charles C. Moore
Federal Mine Safety and Health Review Connnission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22043

1400

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

August 12, 1983
LOCAL UNION 1889, DISTRICT 17,
UNITED MINE WORKERS OF AMERICA
v.

Docket No. WEVA 81-256-C

WESTMORELAND COAL COMPANY
DECISION
This is a compensation proceeding arising under section 111 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1976 & Supp. V 1981). The United Mine Workers of America ("Union")
sought, in part, one week's compensation based on an imminent danger
withdrawal order issued under section 107(a) of the Mine Act to
Westmoreland Coal Company following an explosion at one of the
company's mines. The Union requested in the alternative that if the
judge were not prepared to resolve that claim, he reserve a final
decision until the Department of Labor's Mine Safety and Health
Administration ("MSHA") completed its investigation of the cause of
the explosion. The Union believed that MSHA would then terminate
the order either with or without modifying it to allege a violation
of a mandatory health or safety standard. J:./
The judge denied the Union's claim for a week's compensation
because the language of the order, as it currently stands, does not
contain an allegation that the operator failed to comply with any
mandatory health or safety standard. He also declined to retain jurisdiction and dismissed the claim without prejudice. The Union's petition
for discretionary review raises the issue of whether the judge should
have retained jurisdiction over the proceeding. For the reasons that
follow, we vacate the judge's order dismissing the claim for one week's
compensation without prejudice and remand for further proceedings. II
The facts were stipulated by the parties. 2./ In the early morning
hours of November 7, 1980, an explosion occurred inside Westmoreland's
1/
Section 111 provides for miners' compensation for up to one week only
if the miners are idled by a section 104 or section 107 order issued "for
a failure of the operator to comply with any mandatory health or safety
standards." See full text of section 111, note 7, infra.
2/
The Secretary of Labor was not a party below but has filed an amicus
brief before the Commission.
3/
The parties filed a set of joint stipulations on February 5, 1982,
which are incorporated in the judge's decision at 4 FMSHRC 773, 774-75
(April 1982)(ALJ).

1408
83-8-9

Ferrell No. 17 mine, an underground coal mine located in West Virginia.
When management became aware th.at an explosion occurred, it withdrew the
miners working on the 12:01 a.m. to 8:00 a.m. shift from the mine. At
7:30 a.m. an MSHA inspector issued withdrawal order No. 0668337 pursuant
to section 103(j) of the Mine Act. 4/ The order applied to .all areas of
the mine, and provided in part:
An ignition has occurred in 2 South off
1 East. Th.is was established by a power
failure at 3:30 a.m. and while searching
for the cause of the power failure, smoke
was encountered in the 2-South section.
Five employees in the mine could not be
accounted for. [The area or equipment
involved is] the entire mine ••••
At 8:00 a.m. on November 7th, one half hour after the 103(j) order
had been issued, an MSHA inspector issued Order No. 0668338 pursuant to
section 107(a) of the Mine Act. }_/ This imminent danger withdrawal order,
which also applied to all areas of the mine, did not allege a violation
of any mandatory health or safety standard. The order stated:
All evidence indicates that an ignition of
unknown sources has occurred and five
employees cannot be accounted for.
4/

}_/

Section 103(j) provides:
In the event of any accident occurring in any coal or other
mine, the operator shall notify the Secretary thereof and shall
take appropriate measures to prevent the destruction of any
evidence which would assist in investigating the cause or causes
thereof. In the event of any accident occurring in a coal or other
mine; where rescue and recovery work is necessary, the Secretary or
an authorized representative of the Secretary shall take whatever
action he deems appropriate to protect the life of any person, and
he may, if he deems it appropriate, supervise and direct the rescue
and recovery activities in such mine.
30 u.s.c. § 813(j).
Section 107(a) provides:
If, upon any inspection or investigation of a coal or other
mine which is subject to this Act, an authorized representative of
the Secretary finds that an imminent danger exists, such representative shall determine the extent of the area of such mine
throughout which the danger exists, and issue an order requiring
the operator of such mine to cause all persons, except those
referred to in section 104(c), to be withdrawn from, and to be
prohibited from entering, such area until an authorized representative of the Secretary determines that such imminent danger and
the conditions or practices which caused such imminent danger no
longer exist. The issuance of an order under this subsection shall
not preclude the issuance of a citation under section 104 or the
proposing of a penalty under section 110.
30 U.S.C. § 817(a).

140'(

The bodies of all five miners were recovered on November 8, 1980.
Subsequently, the 2-South area of the mine was sealed off. On
December 10, 1980, both orders were modified to show that the area of
the mine affected by the orders was limited to the seals and the area
inby the seals. Neither of the orders has been terminated so that they
both remain in effect.
The miners who were withdrawn from the mine during the 12:01 a.m. to
8:00 a.m. shift on November 7, were paid for their entire shift. Seventysix miners were expected to work the November 7 day shift (8:00 a.m. to
4:00 p.m.) at the mine. Eight of these miners reported for work, remained
at the mine, worked for eight hours, and were fully paid for that work.
At least some of the remaining sixty-eight miners, however, were prevented
from entering the mine property by state police, who had erected a roadblock at the entrance to Westmoreland's property. Westmoreland later paid
all sixty-eight miners four hours of compensation. ~/
On February 5, 1981, the Union filed its original complaint for compensation under section 111 of the Mine Act. 7/ The complaint alleged
that "the imminent danger that existed on November 7, 1980, and which led
to the issuance of Order Nos. [0668337] and [0668338] was caused by the
operator's failure to comply with mandatory safety and health standards."
Complaint at 4. Thus, under the third sentence of section 111, the Union
claimed that each miner was entitled to up to one week's compensation
based on the imminent danger order. The Union subsequently filed an
amended complaint on November 9, 1981, seeking limited compensation for
both the 103(j) and 107(a) orders under the first two sentences of
section 111. The Union also repeated its original claim for a week's
compensation under the third sentence of section 111.
6/
Westmoreland broadly characterized the payment of 4 hours to the
day shift as "compensation." It argued that the payment of 4 hours
compensation fulfilled both the "reporting pay" obligations under its
collective bargaining agreement with the Union and section 111 of the
Mine Act. The judge found the miners were entitled to four hours
reporting pay under the contract and four hours under section 111. 4
FMSHRC 776-79. This issue is not raised on review.
7/
The first three sentences of section 111 provide:
[l] If a coal or other mine or area of such mine is closed by
an order issued under section 103, section 104, or section 107, all
miners working during the shift when such order was issued who are
idled by such order shall be entitled, regardless of the result of
any review of such order, to full compensation by the operator at
their regular rates of pay for the period they are idled, but for
not more than the balance of such shift. [2] If such order is not
terminated prior to the next working shift, all miners on that
shift who are idled by such order shall be entitled to full compensation by the operator at their regular rates of pay for the
period they are idled, but for not more than four hours of such
shift. [3] If a coal or other mine or area of such mine is closed
(Footnote continued)

140()

Thereafter on February 19, 1982 the Union filed a motion for partial
summary decision. In discussing its claim for a week's compensation, the
Union acknowledged that the judge may feel "unable to grant this part of
the UMWA' s motion on the basis of the current record." Motion at 11. If
this occurred, the Union requested the judge to reserve final decision until
MSHA completes its investigation. Id. At that time the order would presumably be terminated either with or-without modifying the order to allege
a violation of a mandatory health or safety standard. §_/ Westmoreland
answered by filing a cross-motion for summary decision.
The judge issued a summary decision on April 28, 1982. He granted the
Union's request for fpur hours of compensation for the day shift based on
the section 103(j) order and the second sentence of section 111. The judge
denied the Union's concurrent claims for limited compensation under the
first two sentences of section 111 based on the section 107(a) order.
Regarding the· Union's claim for one week's compensation under the third
sentence of section 111, the judge concluded, "Inasmuch as imminent danger
Order No. 668338, here involved, does not cite Westmoreland for failure to
comply with any mandatory health or safety standard ••• the obvious conclusion is that the miners cannot claim compensation for 1 week of pay under
section 111 of the Act." 4 FMSHRC at 785 (emphasis in original). The Union
had also sought permission to introduce evidence at a hearing to show that
the ignition was the result of Westmoreland's failure to comply with one or
more mandatory health or safety standards. The judge refused to permit the
Union to present such evidence. He believed it would result in the Union's
usurping the Secretary's prosecutorial role. 4 FMSHRC at 785-86.
Finally, the judge declined to reserve ruling on the Union's request
for one week's compensation based on legal and practical reasons. First,
the judge referred to the fact that he was reversed by the Commission in
Council of Southern Mountains v. Martin County Coal Corp., 2 FMSHRC 3216
(November 1980), for issuing a decision that failed to dispose of all
Fn. 7/ continued
by an order issued under section 104 or section 107 of this title
for a failure of the operator to comply with any mandatory health
or safety standards, all miners who are idled due to such order
shall be fully compensated after all interested parties are given
an opportunity for a public hearing, which shall be expedited in
such cases, and after such order is final, by the operator for lost
time at their regular rates of pay for such time as the miners are
idled by such closing, or for one week, whichever is the lesser ••••
30 u. s. c. § 821.
8/
As noted earlier, the 2-South section of the mine was sealed after the
explosion. MSHA will not complete its investigation until the section is
reopened. Westmoreland expected to unseal the area in approximately July,
1983. 4 FMSHRC at 785. The Union believes that once MSHA completes its
investigation the Union will be able to establish that the 107(a) order
was issued for Westmoreland's failure to comply with a mandatory health
or safety standard.

1409

pending issues. He also relied on section 113(d)(2)(C), which requires that
when a decision is ready for issuanc~, the judge must forward the record to
the Commission. Then, if a petition for discretionary review is filed, the
Commission has the complete record. The judge's last reason for denying
the Union's request was that:
[T]here is nothing to prevent UMWA from
filing a complaint for a week of compensation under the third sentence of
section 111 if and when MSHA does modify
outstanding imminent danger Order No.
668338 to allege one or more violations
of the mandatory health or safety standards by Westmoreland.
4 FMSHRC at 789. Accordingly, the judge denied the Union's request for
deferral of his decision and dismissed the claim without prejudice.
We hold that the judge erred in not retaining jurisdiction over the
one week's compensation claim. First, Council of Southern Mountains does
not require dismissal of the Union's claim; that case is distinguishable
from the facts presented here. It involved a single claim of discrimination under section lOS(c) of the Mine Act. The judge issued a decision
finding that the operator had discriminated against the Council and ordered
the operator to reimburse the Council for expenses and attorneys' fees
pursuant to section 10S(c)(3) of the Act. The judge's decision did not
specify the amount of this award. We held that section 113(d)(l) of the
Act and Commission Rule 6S(a), 29 C.F.R. § 2700.65(a), require that the
judge's decision finally dispose of the proceedings. The judge could
have obtained an accounting of the expenses and attorneys' fees tied to
the discrimination claim and specified the amount in his decision.
Because the judge failed to resolve the amount of fees and expenses in
that case; his decision did not finally dispose of the one claim.
In contrast, here the Union has made three separate claims for
compensation. The judge finally disposed of all issues relating to the
first two claims. At the time of his decision, however, MSHA had not
completed its investigation of the cause of the mine explosion and,
accordingly, the judge was not prepared to issue a decision on the
merits of the claim for a week's compensation. Council of Southern
Mountains does not mandate that a judge resolve all claims when he is
not ready to do so. It is limited to cases where the judge could
resolve all claims but fails to do so.
Second, dismissal without prejudice could cause possible time
limitation problems under Commission Rule 35, 29 C.F.R. § 2700.35.
That rule provides:
A complaint for compensation under section 111 of the
Act, 30 U.S.C. § 821, shall be filed within 90 days
after the commencement of the period the complainants
are idled or would have been idled as a result of the
order which gives rise to the claim.

1110

The Union timely filed its claim for a week's compensation within 90 days
from the time the miners were idled by the orders. Had the Union later
refiled its claim following the judge's dismissal, the operator could have
opposed the complaint on the ground that it was not timely filed. We
need not resolve in this case whether Rule 35 would have barred later
refiling. We hold, however, that retention of the Union's claim was the
preferable procedural course because it prevented, rather than created,
possible time limitation problems. 2_/
We also emphasize that compliance with Rule 35 enhances judicial
administration of compensation claims. Records needed to identify the
complainants as well as their rates of pay are easily accessible within
90 days of idlement. In the event a mine is closed for some length of
time, as here, it is preferable to have a claim remain on a judge's
docket than to have the parties establish or defend a claim several
months or years later. In short, retention of the Union's compensation
claim during the pendency of the MSHA investigation would have provided the miners with more certain protection of their interests under
section 111 than dismissal without prejudice. Cf. Eastern Assoc. Coal
Corp., 2 FMSHRC 2774, 2775-78 (October 1980)(stay of a notice of
contest preferable to dismissal without prejudice.)
In addition, there is procedural authority for separate adjudication
of multiple claims. The Commission's rules do not expressly address the
issuance of decisions in cases involving multiple claims. 10/ Therefore,
we apply Commission Rule l(b), 29 C.F.R. § 2700.l(b), whici:i-states:
Applicability of other rules. On any
procedural question not regulated by the
Act, these Procedural Rules, or the
Administrative Procedure Act (particularly
5 U.S.C. §§ 554 and 556), the Commission
-0r any judge shall be guided so far as
practicable by any pertinent provisions of
the Federal Rules of Civil Procedure as
appropriate.
Under Rule l(b), it is thus appropriate to turn for guidance to the
Federal Rules, which provide for separate adjudication of multiple
claims.
Rule 54(b), Fed. R. Civ. P. permits adjudication of fewer than all
claims presented in an action. 11/ Had the judge applied Rule 54(b), he
9/

Cases may arise in the future involving the issue of whether, under

~ertain circumstances, the 90-day time limitation in Rule 35 may be

waived. We intimate no view at this time as to the resolution of such
questions.
10/ Commission Rule 65, which deals with judge's decisions, is silent
on the issuance of decisions involving multiple claims.
_!l/ Rule 54(b) provides:
Judgment Upon Multiple Claims or Involving Multiple Parties. When
more than one claim for relief is presented in an action, whether
(Footnote continued)

1411

could have resolved the Union's first two claims while retaining jurisdiction
of the third claim. See Curtis-Wright Corp. v. General Electric Co., 446 U.S.
1 (1980), and Sears Roebuck and Co. v. Mackay, 351 U.S. 427 (1956). The judge
was prepared to issue a decision resolving the first two claims, and there
was "no just reason to delay" that decision. Under theRule, his adjudication
of the first two claims would have been a final decision, subject to the review
procedures of the Mine Act. Utilizing Rule 54(b) would also have been in
harmony with Commission Rule 64(a), 29 C.F.R. § 2700.64(a), which provides:
At any time after commencement of a proceeding
and before the scheduling of a hearing on the
merits, a party to the proceeding may move the
judge to render summary decision disposing of
all or part of the proceeding.
29 C.F.R. § 2700.64(a)(emphasis added). Indeed, the Union had filed a motion
under Commission Rule 64(a) for "partial" summary decision seeking resolution of its first two claims.
In general, the question of separate adjudication of claims belongs
within the informed discretion of the judge. He is in the best position
to evaluate the various procedural alternatives available "to secure the
just, speedy and inexpensive determination of all proceedings." Commission
Rule l(c), 29 C.F.R. § 2700.l(c). In this instance, however, the judge
apparently did not consider applying Federal Rule 54(b), nor was such a
course suggested by either party below. We find that in this particular
factual situation of a pending MSHA investigation, the judge should have
applied Federal Rule 54(b) "so far as practicable" and "appropriate," and
separately adjudicated the claims. This action would have secured the
"just, speedy and inexpensive determination" of all the proceedings. The
claims for limited compensation, which were ripe for decision, could have
been adjudicated. This would be in harmony with Congressional intent for
expedited ·compensation proceedings. And, as we have indicated above,
retention of the remaining claim would have avoided time limitation
problems and better protected the miners' interests.
There is also an important practical aspect to our decision to remand.
The status of the case has changed. The Union repeatedly advised the judge
that MSHA would be taking enforcement action against Westmoreland. On Ju.Ly 15,
1982, MSHA issued thirteen section 104(d)(2) orders to Westmoreland. The
Fn. 11/ continued
as a claim, counterclaim, cross-claim, or third-party claim, or
when multiple parties are involved, the court may direct the entry
of a final judgment as to one or more but fewer than all of the
claims or parties only upon an express determination that there is
no just reason for delay and upon an express direction for the
entry of judgment. In the absence of such determination and
direction, any order or other form of decision, however designated,
which adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate the
action as to any of the claims or parties, and the order or other
form of decision is subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.

orders are based on statements taken during MSHA's investigation into the
ignition. Westmoreland filed notices of contest of all thirteen orders and
MSHA has initiated civil penalty proceedings. ll:_/ These cases are currently
pending before the same judge who adjudicated these compensation claims. The
question of whether the order litigated here was issued "for a failure of the
operator to comply with any mandatory" standard may be resolved in the context
of the notices of contest and penalty proceedings currently pending before the
judge. In the alternative, because Westmoreland apparently plans to unseal the
2-South section during the summer of 1983, it may be feasible to proceed after
MSHA completes its investigation.
We express no view about whether these thirteen 104(d)(2) orders or any
later modification of the 107(a) Order No. 668338, may provide the basis for a
week's compensation under the third sentence of section 111. We also do not
reach the legal arguments raised by Westmoreland concerning whether the imminent
danger order as issued must contain an allegation of a violation for purposes of
section 111 compensation. All of these questions on the merits of the Union's
claim are appropriate for resolution in the first instance by the judge.
We commend the judge's conscientious efforts to resolve this complicated
litigation but, for the reasons discussed above, vacate his order dismissing
without prejudice the Union's claim for a week's compensation. The case is
remanded to the judge with instructions to hold the record open as to the
Union's claim for a week's compensation. The parties are free to submit any
appropriate motions or showings. If the Union fails to make appropriate
showings upon the completion of MSHA's investigation, Westmoreland may file
an application for a show cause order to determine if the claim should be
dismissed. The judge's resolutions of the Union's other claims are final,
since no review was taken as to those aspects of his decision.

12/ The notices of contest are contained in docket numbers WEVA 82-340-R
through WEVA 82-352-R. The judge has consolidated these cases with the
related civil penalty cases, docket numbers WEVA 83-73 and WEVA 83-143.

1413

Distribution
Timothy M. Biddle, Esq.
Crowell & Moring
1100 Connecticut Ave., N.W.
Washington, D.C.. 20036
Mary Lu Jordan
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Debra L. Feuer
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Richard C. Steffey
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22043

111. <1

Administrative Law Judge Decisions

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

August 2, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. PENN 82-133
A.C. No. 36-00807-03110
Renton Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION
This is a petition for the assessment of a civil penalty
for a violation of 30 C.F.R. § 75.1702.
The parties have filed motions for summary decision
together with supporting affidavits and briefs. Since there
is no genuine ~ssue of material fact and judgment can be
rendered as a matter of law, summary decision is appropriate.
29 C.F.R. § 2700. 64 (b).
30 C.F.R.
§

§§

75.1702

75.1702 and 75.1702-1 provide as follows:

Smoking; prohibition.

No person shall smoke, carry smoking
materials, matches, or lighters underground,
or smoke in or around oil houses, explosives
magazines, or other surface areas where such
practice may cause a fire or explosion. The
operator shall institute a program, approved
by the Secretary, to insure that any person
entering the underground area of the mine
does not carry smoking materials, matches, or
lighters.
§

75.1702-1

Smoking programs.

Programs required under § 75.1702 shall
be submitted to the Coal Mine Safety District
Manager for approval on or before May 30, 1970.

A

t

.,

1 .Llb
1

Citation No. 1143766, dated January 5, 1982, cites a
violation of § 75.1702 as follows:
The mines [sic] program for the searching
of smoking articles was not being followed in
that the week of Dec~mber 21 to 25 the "A"
and "C" crews were not reportedly examined,
and the week of December 27 to January 1 the
"C" crew was not reportedly examined. All
crews are to be systematically searched
weekly.
In his sworn affidavit the operator's superintendent
admits that the facts described in the "Condition or Practice"
are true.
He further advises that the operator's program
for searching miners for smoking materials involves one
search per week for each crew.
The parties agree that the issue presented for resolution
is whether this.violation is significant and substantial.
In National Gypsum Company, 3 FMSHRC 822 (1981), the
Commission considered at length what would constitute a
violation which "could significantly and substantially
contribute to the cause and effect of a coal or other mine
safety or health hazard." The Commission held that a
violation was of such a nature as could significantly and
substantially contribute to the cause and effect of a mine
safety or health hazard if, based upon the particular facts
surrounding that violation, there existed a reasonable
likelihood that the hazard contributed to would result in an
injury or illness of a reasonably serious nature.
3 FMSHRC
at 825.
In addition, the Commission expressed its understanding that the word "hazard" denoted a measure of danger
to safety or health, and that a violation significantly and
substantially contributed to the cause and effect of a
hazard if the violation could be a major cause of danger to
safety or health.
3 FMSHRC at 827.
The operator's position that the violation is not
significant and substantial relies upon the facts that
during the two week period involved work was not performed
every day and that on the shifts in question all of the
miners did not work.
The superintendent's affidavit states
in part:

141·1

4.
For the period December 21 through
December 25, the Renton Mine worked a total
of three days, during which period the "A"
and "C" crews were not searched for smoking
materials. During that period, of the
normally scheduled workforce on the "A" crew
approximately twenty-five percent of the
miners did not work.
During that period, of
the normally scheduled workforce on the "C"
crew approximately one-third of the miners
did not work;
5. For the period December 27 through
January 1, the Renton Mine worked a total of
five days, during which period the "C" crew
was not searched for smoking materials.
During that period, of the normally scheduled
workforce on the "C" crew approximately
twenty-eight percent of the miners did not
work [.]
The superintendent's affidavit further reports that
searches for smoking materials involve a pat-down of the
miner and an inquiry to him whether or not he has such
materials in his lunch pail.
After careful consideration I do not find the circumstances as described by the superintendent and as interpreted
by operator's counsel persuasive on the issue of "significant
and substantial." Moreover the factors relied upon by the
operator are greatly outweighed by the fact this mine is
extremely gassy. The affidavit of the MSHA sub-district
office manager recites in part that:
4. Renton Mine is a particularly gassy
mine that, due to its liberation of high
quantities of methane, is subject to statutorilymandated spot inspections under § 103(i) of
the Act.
Specifically, between the inception
of the 1977 Mine Safety and Health Act and
July 1, 1982, Renton Mine liberated between
500,000 and 999,999 cubic feet of methane
every 24 hours.
As such, it was subject to
spot inspections under § 103(i) every ten
working days at irregular intervals.
Beginning July 1, 1982, Renton Mine was determined to be liberating quantities of methane

in excess of 1 million cubic feet per 24
hours and is accordingly now subject to spot
inspections every five working days under
§

10 3 ( i) .

It is clear from the affidavit that in this mine a
methane liberation can occur at any time and at any place.
Under such circumstances, the fact that the work crews which
were not examined were two-thirds or three-fourths of their
total personnel strength does not render the violation
insignificant and insubstantial. Nor does the fact that
full weeks were not worked or that only a limited period of
time was involved make any difference.
In a mine like this
every moment is fraught with peril from a methane explosion.
As some of the exhibits submitted by the Solicitor demonstrate,
smoking and smoking materials underground may cause or
contribute to a mine explosion. Where so much methane can
be liberated at any time the great danger created or con~
tributed to by this violation, is ever-present. Under such
circumstances there exists the reasonable likelihood that
the hazard contributed to will result in an injury of a
reasonably serious nature.
The operator argues that the violation is not significant
and substantial because the search is a mere pat-down and an
inquiry to the miner regarding his lunch pail whereas a
daily strip search would be necessary to eliminate the
possibility of miners taking smoking materials into the
mine. The operator's approach appears based upon the faulty
premise that because the operator cannot do everything, it
really is not important for it to do anything. Such a
rationale would all but nullify the mandatory standard and
its underlying purpose.
I am persuaded by the Solicitor
that searches such as should have been performed here have a
deterrent effect.
I agree with her assertion that without
the required inspections, miners may either inadvertently or
purposefully carry smoking materials underground. The
operator inconsistently points to the deterrent effect its
own work rules and Pennsylvania law would have upon a miner
who is found taking smoking materials underground but
apparently would accord no such effect to Federal law.
The operator argues that the circumstances peculiar to
this mine should be determinative, not what has happened at
other mines.
I agree.
That is why I decide this case
on the basis of the factor peculiar to this mine which

141U

eclipses all other considerationsi i.e., its extremely gassy
nature.
The fact that this mine liberates so much methane
renders continuously crucial the deterrent effect of the
search for smoking materials.
In light of the foregoing, I conclude that the violation
was significant and substantial.
Finally, the operator alleges that the proposed penalty
of $210 is excessive. Whether a cited violation is significant
and substantial is irrelevant to the determination of the
appropriate penalty amount to be assessed. Penalty proceedings
before the Commission are de nova and the amount of the
penalty to be assessed is 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. As already pointed out, the
violation was serious.
I find the operator was guilty of
ordinary negligence.
The mine is large, assessment of the
penalty will not affect the operator's ability to continue
in business and there was good faith abatement.
Based on
the record there is no history of prior violations of this
standard.
After consideration of all the statutory factors,
I conclude the proposed penalty is appropriate.
It is ORDERED that the operator pay $210 within 30 days
from the date of this decision.

c

-

Paul Merlin
Chief Administrative Law Judge

Distribution:
Janine c. Gismondi, Esq., Office of the Solicitor, U. S.
Department of Labor, Rm. 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104
(Certified Mail)
Robert M. Vukas; Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241
(Certified Mail)

/ln

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

August 8, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 83-57-M
A.C. No. 20-00801-05501
Nugent Sand Mine

NUGENT SAND 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 six 1/ violations involved in this matter. The proposed settlements are for the originally assessed amounts.
Three violations were assessed at $20 apiece and the others
were assessed at $91, $126 and $136, respectively. The
operator has already tendered payment of $413.
One citation was issued for failure to properly maintain
a guard at the head pulley. The violation was serious and
negligence was low. This violation was originally assessed
for $91. A second citation was issued because a grinding
machine did not have an adjustable tool rest. The violation
was serious and negligence was moderate. This violation was
originally assessed for $126. A third citation was issued
because miners were working on the drive gear of a dryer
machine without the power control box being locked out.
The violation was serious and negligence was moderate. This
violation was originally assessed for $136. The Solicitor
proposes to settle these citations for the originally
assessed amounts. On the basis of the foregoing, I conclude
these settlement amounts are appropriate.

l/

The Solicitor's motion mistakenly states that there are
eight citations. The record, including the assessment
sheet shows that only six citations are involved.

1421

There is insufficient information, however, regarding
the three $20 violations.
In my opinion, $20 denotes a lack
of gravity. However, the $20 violations are for lack of a
fire extinguisher on a front-end loader, lack of a guard on
a take-up pulley and lack of a guard on a head pulley.
I do
not know whether these conditions are serious or not but I
could not find a lack of gravity on the face of the subject
violations.
It appears from the assessment sheet that the three
violations which are assessed at $20 each were done so as
the result of the so-called "single penalty assessment"
set forth in 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 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 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 fulfull and discharge. This can only be
done on the basis of an adequate record.
I will not order that this case be dismissed with
respect to the $91, $126 and $136 proposed settlements
pending final disposition of the three $20 proposed settlements.
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 three proposed $20 penalties are
justified and if not, what settlement amounts the parties
believe are warranted. Otherwise, this case will be assigned
and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U. S. Department
of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL
60604
(Certified Mail)
Mr. Glenn Adams, General Manager, Nugent Sand Company, Inc.,
2875 Lincoln, P. O. Box 506, Muskegon, MI 49443
(Certified
Mail)

/ln

1423

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.

AUG

ov um
l\.IVV

CIVIL PENALTY PROCEEDING
Docket No. WEST 81-383
A.C. No. 05-03648-03001
Big 3 Mine

RICHARD KLIPPSTEIN and
W. 0. PICKETT, JR.,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Mr. Richard Klippstein, Rifle, Colorado
Pro Se.

Before:

Judge Carlson

This civil penalty proceeding arises out of respondents' alleged
operation of a coal mine near Rifle, Colorado. The matter is before me under
the provisions of the Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (the "Act"). The five alleged violations for which the Secretary nowseeks civil penalties were cited in a federal mine inspector's imminent
danger withdrawal order under section 107(a) of the Act. Although given
notice, respondents failed to appear at the hearing scheduled for 8:30 a.m.
on October 8, 1982. I personally contacted respondent Klippstein to remind
him of the time and date. He then appeared, and the hearing began two and
one half hours late.
Petitioner filed a post-trial brief, to which respondent Klippstein
replied.
Issues
1) Was W.O. Pickett, Jr. properly named as co-respondent in this
proceeding?

2)
proper?

Was a MSHA inspector's entry and inspection of the Big 3 Mine

3) Were exploration activities at the Big 3 Mine sufficient to mandate
compliance with the Act and its safety regulations, and if so, did the
alleged violations occur and were .the assessed penalties appropriate?
SUMMARY AND DISCUSSION OF THE
EVIDENCE
General Background
The undisputed evidence shows that the Big 3 coal mine was first worked
in the 1920's, and was operated a second time during the 1940's. The mine
consisted of a single drift some 1300 feet in length, contained several coal
seams, and ended at a 40 foot seam of unmined coal.
The evidence shows that in 1980 Klippstein purchased the lana upon which
the mine was located. His intent, he testified, was to build and sell houses
on the new property, which was adjacent to the rural acreage upon which his
own home was located. The building project appeared promising at the time
because of the proximity of the mine to a large public reservoir. Statements
by Klippstein in his written pleadings and at the hearing showed that he
re-opened the mine drift for a dual purpose: to develop a water right to
spring water in the mine and to assess the coal deposits. A confirmed water
source was necessary to provide water to the proposed housing project. In
re-opening the drift, respondent, with the occasional help of his two sons,
did drilling and blasting, and used a front-end loader to remove debris.
In January 1981, MSHA inspector Villegos and a supervisor learned of
apparent mining-related activities on Klippstein's property, and entered the
land to further investigate. Once there, they observed an independent
contractor and two crew members using a front-end loader and dump trucks to
remove piles of mine tailings. The inspector was told that two men had been
seen on another day going up to the mine to remove coal.
When Villegas approached the mine portal, he observed a front-end loader
near the mine. The machine was covered with coal dust and its tracks led
into the mine. Since no mine representative could be found, Villegos entered
the mine without one. Inside, he testified, he discovered signs of recent
activity; electrical wiring for lighting, blasting caps, and signs of
drilling were noted. In addition, two piles of coal (each about 250 to 300
pounds) lay beneath a coal seam.
After testing air movement in the drift, Villegos issued a withdrawal
order based upon violation of five mandatory standards. The order specified

1425

that it was issued pursuant to sections 107(a) and 104(a) of the Act. l;
The order was issued to both Richard Kiippstein and W.O. Pickett, Jr.,believed by the inspector to be co-owners and operators of the mine.
Klippstein succeeded in acquiring a conditional water right to the
mine's spring water by decree of a Colorado Water Judge on June 18, 1982
(exhibit R-1). He had closed the mine around October, 1981.
Status of Co-respondent Pickett
Undisputed testimony at the hearing indicated that respondent Pickett
had no financial interest in the mine, nor any surface or mineral rights to
the property. I therefore conclude that Pickett should not have been named
as co-respondent, and should suffer no liability for the charges involved in
this proceeding. All further discussion in this case will concern respondent
Klippstein. The proceeding will be dismissed as to Pickett.
Unauthorized Entry and Inspection of Mine
Respondent denies operating a mine, and maintains that while an access
road was open on the day of the inspection, his property was well posted
against trespassing. He therefore contends that Inspector Villegas' unauthorized entry onto his property, and inspection of the Big 3 mine, were
improper.
1/

Section 107(a) provides:

If, upon any inspection or investigation of a coal or other mine which
is subject to this Act, an authorized representative of the Secretary finds
that an imminent danger exists, such representative shall determine the
extent of the area of such mine throughout which the danger exists, and issue
an order requiring the operator of such mine to cause all persons, except
those referred to in section 104(c), to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the
Secretary determines that such irrnninent danger and the conditions or
practices which caused such imminent danger no longer exist. The issuance of
an order under this subsection shall not preclude the issuance of a citation
under section 104 or the proposing of a penalty under section 110.
Section 104(a) provides in 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.

In contrast, petitioner contends that the entry and inspection were
proper. There was no expectation of privacy, no guard at the mine, nor any
mine representative present (Tr. 88).
I accept petitioner's arguments and find Villegos' entry onto
Klippstein's property and the mine inspection to be reasonable under the
circumstances. Section 103(a) of the Act provides MSHA inspectors with the
right of entry to, upon, or through any mine. No advance notice of an
inspection need be given. Furthermore, the Supreme Court has ruled that
warrantless inspections authorized under section 103(a) do not violate the
Fourth Amendment; the certainty and regularity of the Act's inspection
program provide a constitutionally adequate substitute for a warrant.
Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534 (1981).
The propriety of inspections turns, then, on a MSHA inspector's reasonable belief in the existence of a mine and associated mining activities.
Inspector Villegas had such a belief when he entered respondent's property
and inspected the mine. Removal of mine tailings provided a prima facie
indication of mining operations. Furthermore, Villegas was informed (whether
correctly or not) that coal was being removed from the mine. The condition
of the mine itself gave additional indication of present mining activity: the
portal was open, signs of drilling and blasting were evident, and a frontend loader was parked near-by.
Therefore, under the Act's provisions and based upon the evidence, I
find the inspection to be proper. I next turn to the issue of MSHA's
jurisdiction in the issuance of a withdrawal order, based upon the violation
of mandatory standards, and the proposed penalties.
MSHA Jurisdiction
Respondent claims that the Big 3 Mine was not being operated for
purposes of mineral extraction at the time of the inspection. He therefore
contends that issuance of a withdrawal order and citations was not within
MSHA's jurisdiction.
On the other hand, petitioner argues that Klippstein's operation is a
mine as defined by the Act, and comes within the Act's coverage by virtue of
its affect on commerce. I agree with petitioner, and find that respondent's
exploratory activities in the mine were sufficient to invoke MSHA's
jurisdiction and mandate compliance with the Act's safety regulations.
Section 3(h)(l) of the Act defines a mine as "underground passageways
used in, or to be used in, or resulting from the work of extracting
[minerals] from their natural deposits." Mines subject to the Act are those
whose products enter commerce, or "the operations or products of which affect

142."i

commerce •••• " 30 U.h.C. § 803. The legislative history of the Act 2;,
and court decisions encourage a liberal reading of such provisions in order
to achieve the Act's purpose of protecting miners' safety. Westmoreland
Coal Co. v. Federal Mine Safety and Health Review Commission, 606 F. 2d 417
(4th Cir. 1979).
Accordingly, the Connni.ssion has not limited mining activities covered by
the Act to operations involving actual mineral extraction, Instead, attempts
to drive a shaft and establish a portal, merely to evaluate a mineral deposit
and mining feasibility, have been ruled sufficient activity to involve
hazards intended to be regulated by the Act. Cyprus Industrial Minerals
Corp., 3 FMSHRC 1 (January 1981), aff'd, 664 F. 2d 1116 (6th Cir. 1981).
I find respondent's activities to involve similar motives of mineral
exploration with associated hazards. As admitted in an answer to the
Secretary's proposal for penalties, Klippstein re-opened the Big 3 Mine "for
two reasons, to secure a water right to the water in the mine and to see if
there was any coal in it." Had valuable amounts of coal been discovered,
Klippstein testified that he would have sought someone to mine the deposits
(Tr. 88). By re-opening the mine to determine the feasibility of mining its
coal ~eposits, Klippstein brought himself within the coverage of the
Act. _/
Respondent cannot avoid MSHA's jurisdiction by claiming to individually
perform all work in the mine. The provisions of the Act are applicable even
where an owner-operator works a mine. Marshall v. Conway, 491 F. Supp. 1123
(D.C. Pa 1980).
Finally, respondent can not avoid the jurisdiction of the Act by
claiming that his activities failed to affect commerce. Unsafe working
conditions of one operation, even if in initial and preparatory stages,
influence all other operations similarly situated, and consequently affect
interstate connnerce. Godwin v. Occupational Safety and Health Review Comm.,
540 F. 2d 1013 (9th Cir. 1976).

2/ S. Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d"""Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 602
(1978).
3/ The removal of tailings by an independent contractor was relevant to the
issue of the propriety of the inspection. Klippstein testified, in essence,
that the contractor approached him and offered a price for the tailings as
salvage. There was no evidence linking the tailings salvage to the reestablishment of the drift, Thus, while the tailings activity was among
those facts which gave the inspector good cause to suspect that mining was in
progress, I must agree with Klippstein that it quite likely may not have
constituted mining. The finding on jurisdiction is based on Klippstein's own
activities and those of his two sons within the drift.

In the present case, Klippstein's exploratory act1v1t1es involved working conditions governed by the Act, and therefore affected interstate
commerce as it relates to the mining industry. The mere fact that the exploratory activity also included development of a water right does not allow
respondent to deny an affect on commerce or escape the Act's regulatory
powers as they affect mineral development.
Citations and Proposed Penalties
The citations 4 / issued for violations of regulations promulgated
under the Act, and proposed penalties are as follows:
Citation No.
1127905 A

Violation
Charged
No mechanical
ventilation

Applicable
30 C.F.R. §
75.300

Proposed
Penalty
$ 240

1127905 B

Impermissible
power connection
units

75.507

$

56

1127905 c

No notice given
of mine reopening

75.1721

$

24

1127905 D

No books or recording of mine
tests

75.1800

$

24

1127905 E

No notice given
of legal identity
of operator

41.ll(a)

$

24

Total

$ 368

The first citation charges respondent with failure to provide mechanical
ventilation in the mine. The standard allegedly violated, 30 C.F.R.
§ 75.300, provides as follows:
All coal mines shall be ventilated by mechanical ventilation
equipment installed and operated in a manner approved by an
authorized representative of the Secretary and such equipment
shall be examined daily and a record shall be kept of such
examination.

4/ The withdrawal order specified that it was issued under both 107(a) and
l04(a) (as is the Secretary's connnon practice where a 107(a) order is based
upon alleged violations of mandatory standards). Thus, MSHA denominated the
five violations a "citation" for penalty purposes, and divided it into a
sub-part for each standard cited. In the interest of consistency the term
"citation" shall be used through the remainder of this decision.

1428

Villegos testified that at the time of his inspection, no ventilation
machinery was in place at the mine. M~chanical ventilation would have been
indicated by the presence of fans on the ground's surface.
A second citation was issued for the us.e of impermissible electrical
wiring in the mine. Respondent allegedly failed to supply a proper ground
wire when providing electric lighting inside the tunnel. The standard allegedly violated, 30 C.F.R. § 75.507, provides:
Except where permissible power connection units are used,
all power connection points outby the last open crosscut
shall be in intake air.
Due to the presence of some detectable methane as well as some coal dust
in the mine, and respondent's failure to provide proper ventilation and
electrical wiring, Villegas felt that an imminent danger of explosion
existed. He therefore issued a withdrawal order.
Villegos charged three additional violations because of respondent's
alleged failure to comply with certain administrative requirements. Under
the Act's regulations, an operator must notify the Coal Mine gealth and
Safety District Manager before opening an inactive coal mine, and must submit
preliminary mining plans for approval before commencing with mine development. 30 C.F.R. § 75.1721. The legal identity of the operator must also be
filed with MSHA. 30 C.F.R. § 41.ll(a). Furthermore, certain tests and
examinations must be conducted in underground coal mines, and results are to
be recorded in books approved by MSHA. 30 C.F.R. § 75.1800.
Petitioner shows that respondent failed to satisfy these regulatory
requirements. No notice of mine reopening was given, the legal identity of
the mine operator was not filed, and no records of mandatory mine tests were
kept (Tr. 25-27).
Respondent's defense in this case rested solely on the issue of whether
the operation was a mine regulated under the Act. During the hearing,
Klippstein did not directly dispute the evidence of the violations, or the
appropriateness of the penalties.
In his reply to petitioner's post-trial brief, however, respondent
suggests that he was misled into thinking that the purpose of the hearing was
to decide only if MSHA did have jurisdiction over the matter. He claims to
have believed that specific charges would be dealt with after the jurisdictional decision was made.
I find such beliefs to be unfounded. Klippstein was afforded the opportunity to challenge the citations and penalty assessments at two different
points during the hearing - after I informed him that it might be wise to do
so in the event that I ruled against him on the jurisdictional issue (Tr. 56,
70). Respondent's later dissatisfaction with his failure to dispute such
charges therefore has no bearing on the outcome of this case.

Since the -uncontroverted evidence shows that respondent conducted his
exploratory operations in a manner contrary to the Act's regulations, I find
that the violations were properly charged.
Penalties
We now turn to the matter of appropriate penalties. Section llO(i) of
the Act sets forth six criteria to be considered in determining a reasonable
penalty. It provides:
In assessing civil monetary penalties, the Connnission 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.
Respondent's mine had no history of previous violations, and would be
considered a small operation. Klippstein testified at the hearing that he
was unemployed, and owned only the property involved in this ~ase. These
facts suggest imposition of even a modest penalty would have a significant
deterrent effect.
Respondent's failure to comply with the Act's regulations was negligent.
Under the facts of this case, respondent failed to exercise reasonable care
in complying with regulatory requirements in the operation of his mine.
Nevertheless, the respondent's inexperience with federal mine safety
regu~ation, and seemingly honest belief that his operations were lawful and
did not fall within MSHA jurisdiction are mitigating factors in the finding
of negligence,
In determining the gravity of the violations, consideration must include
the probability of injury, seriousness of potential injury, and the number of
workers exposed to such hazard. Lack of proper mechanical ventilation and
the possible presence of methane could have resulted in a serious or fatal
injury. However, work in the mine was limited in extent and duration, and
typically involved only one worker. Consequently, I consider the gravity to
be less than originally determined by the Secretary.
There is no indication that respondent abated the hazardous conditions
upon notification of the violations and order of withdrawal. Instead, at a
chance meeting several months after the citations and order were issued,
respondent informed the inspector that he and his sons were still working the
mine (Tr. 21). Such factors weigh against respondent.
On balance, however, I conclude that the $368 total of proposed
penalties is excessive. Based upon the criteria for assessing civil
penalties as set forth in the Act, and the evidence of record, I conclude
that the civil penalties for violations should be reduced and assessed as
follows:

1431

Citation No.
1127905 A
1127905 B
1127905 c
1127905 D
1127905 E

Reduced Penalty
$ 70.00
28.00
12.00
12.00
12.00
$134.00

CONCLUSIONS OF LAW
Based upon the findings made in the narrative portion of this decision
the following conclusions of law are entered:
1. W. O. Pickett, Jr. should not have been named co-respondent and
shall sµffer no liability for the charges involved in this proceeding.
2. The mine and exploratory activities of respondent Klippstein were
under the jurisdiction of the Act.
3. Respondent violated the standard published at 30 C.F.R. § 75.300 as
charged in citation 1127905 A.
4. Respondent violated the standard published at 30 C.F.R. § 75.507 as
charged in citation 1127905 B.
5. Respondent violated the standard published at 30 C.F.R. § 75.1721 as
charged in citation 1127905 c.
6. Respondent violated the standard published at 30 C.F.R. § 75.1800 as
charged in citation 1127905 D.

7. Respondent violated the standard published at 30 C.F.R. § 41.ll(a)
as charged in citation 1127905 E.
8.

The appropriate civil penalties total $134.00
ORDER

Accordingly, the Secretary's pet1t1on proposing penalties, as modified
by this decision, is affirmed, and respondent Klippstein is ORDERED to pay
the above assessed penalties, totaling $134.00, within 30 days of issuance of
this order.

~~

.J John A. Carlson

/:?

Administrative Law Judge

Distribution:·
James H. Barkley, Esq. [Certified Mail]
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Mr. Richard Klippstein
P.O. Box 1391
Rifle, Colorado 81650

[Certified Mail]

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1433

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

RICHARD D. CLEMENS,

AUG J ~~ 19fS

DISCRIMINATION PROCEEDING

Complainant

Docket No. WEST 81-298-DM

v.

MSHA Case No. MD 80-176

ANACONDA MINERALS COMPANY,
Division of ATLANTIC
RICHFIELD COMPANY,
Respondent

Carr Fork Mine

DECISION
Appearances:

James E. Hawkes, Esq., King and Hawkes
Salt Lake City, Utah,
for Complainant;
Leslie M. Lawson, Esq., Anaconda Minerals Company,
Denver, Colorado,
for Respondent.

Before:

Judge Vail
Procedural History

This case is before me upon the complaint of Richarq Clemens under
section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (the "Act"). Clemens alleges that Anaconda Minerals
Company (Anaconda)""reduced his pay following a job transfer made within the
Carr Fork copper mine for health reasons, and that such pay reduction
constitutes a discriminatory action prohibited by section lOS(c)(l) of the
Act.
Anaconda filed a moti.on for summary decision, claiming no genuine issue
of fact and that Clemens' allegations did not constitute a violation of the
Act or any federal regulations promulgated thereunder. Clemens responded,
and the matter was set for hearing on October 26, 1982 at Salt Lake City,
Utah. At the hearing, the parties submitted stipulated facts, and elected to
argue all further legal issues in post trial briefs.
Stipulated Facts
In summary, the stipulated facts establish that Clemens was employed by
Anaconda on April 17, 1978 as a miner first-class. Clemens had been a miner
for over thirty years, including fifteen years working underground. Prior to
June 1980, he went to his own private physician due to illness and was told
that he suffered from "Restrictive Pulmonary Disease with hypoxemia."
Clemens provided Anaconda with the medical diagnosis, and consequently was
transferred from underground duties to the job of toplander. The toplander
job normally carries a lower pay-grade. Clemens claims that he accepted the

job transfer believing that his pay would not be lowered, while Anaconda
claims that Clemens understood that his pay-grade would be changed upon
transfer. Clemens' salary was reduced on September 2, 1980 (approximately
three months after his transfer).
Issues
1) Did Clemens' reduction in pay following his job trans£er constitute
a discriminatory act in violation of section lOS(c)(l) of the Act?
2) If so, what is the appropriate relief to be awarded Clemens and what
are the proper civil penalties to be assessed against Anaconda for such
discrimination?
Discussion
Section lOS(c)(l) provides in pertinent part as follows:
No person shall .•• in any manner discriminate against ••• or
cause discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner ••• in any coal
or other mine subject to this Act because such miner ••• is the
subject of medical evaluations and potential transfer under a
standard published pursuant to§ 101 ..• or because of the exercise by such miner •.. on behalf of himself or others of any
statutory right afforded by this Act.
To establish a prima facie case showing violation of section lOS(c)(l),
complainant must introduce evidence of a connection between an adverse
action and exercise by a miner of a protected activity. Two protected
activities recognized by the Commission are 1) the filing or making of a
complaint under or related to the Acti !_! and 2) the exercise of any
statutory right afforded by the Act. / Clemens alleges that he
exercised both forms of protected activity, and therefore claims that his pay
reduction upon job transfer constitutes unlawful discrimination under section
lOS(c)(l) of the Act.
a

Protected activity of making a complaint.
Clemens contends that he engaged in a protected activity when he
complained to Anaconda's personnel manager of unsafe and hazardous mine
conditions. His good faith belief in the existence of such conditions is
said to be supported by his doctor's report, urging Clemens' transfer from
underground work due to work related respiratory problems. Such factors
1/ Sec. ex rel. Long v. Island Creek Coal Company, 2 FMSHRC 1529 (June 1980)
(ALJ); aff'd., No. 80-1799 (4th Cir. September 14, 1981).
2/ United Mine Workers of America on behalf of Beaver v. North American Coal
Corp., 3 FMSHRC 1428 (June 198l)(ALJ).

143~

are claimed to establish existence of a protected activity under the
criteria of Sec. ex rel. Pasula v. Consolidation Coal Company, 2 FMSHRC 2786
(October 1980), rev'd on other grounds sub. nom., Consolidation Coal Company
v. Marshall, 663 F. 2d 1211 (3rd Cir. 1981), and Sec. ex rel. Robinette v.
United Castle Coal Company, 3 FMSHRC 803 (April 1981).
Clemens accuses Anaconda of granting his transfer merely to prevent
further complaints. Reduction of his pay upon transfer is therefore claimed
to be an unlawful, discriminatory act. The fact that such pay reduction was
delayed for three months is said to do nothing to alleviate the discriminatory impact of Anaconda's action. Anaconda, on the other hand, fails to
acknowledge Clemens' exercise of such a protected activity and rejects his
claim that the delay in reducing his pay upon transfer to a toplander job was
an attempt to mask a discriminatory act. Instead, it claims that the delay
was due only to an oversight.
Upon review of the stipulated facts, I find Clemens fails to substantiate his claimed exercise of a protected activity under the- .criteria of
Pasula and related cases. In addressing the protected activity of filing or
making a complaint, the Commission recognized in Pasula that the scope of
protected activities under the Act included a miner's right to refuse to work
where the miner had a reasonable good faith belief of a sufficiently severe
safety hazard. However, for a miner to claim the protection of section 105
(c)(l), he must, at the time he refuses to work, expressly ground his refusal
on an unsafe condition. Sec. ex rel. Duncan v. T. K. Jessup,. Inc., 3 FMSHRC
1880 (July 198l)(ALJ); Kaestner v. Colorado Westmoreland Inc., 3 FMSHRC 1994
(August 198l)(ALJ).
Clemens fails to satisfy such conditions as there is no indication in
the stipulated facts that he indeed refused to work underground due to his
belief that mine conditions presented a safety hazard. Instead, the evidence
shows Clemens requested a transfer based upon his physician's advice that it
might be wise to do so due to his respiratory problems. Furthermore, Clemens
failed to establish that he expressly based his request for transfer on a
complaint of unsafe mine conditions. The stipulated facts show no evidence
of any such complaint being made, nor existence of any health or safety
violations in the mine.
Therefore, I reject Clemens' claim of unlawful discrimination provoked
by the protected activity of expressing a mine safety complaint. As such, I
find it unnecessary to address the reason for Anaconda's delay in reducing
Clemens' pay.
Protected activity of exercising a statutory right.
Clemens further contends that unlawful discrimination occurred following
his exercise of a statutory right, where such statutory right constitutes a
second form of protected activity under section 105(c)(l) of the Act.
Clemens claims that mandatory standard 30 C.F.R. § 57.18-2 affords a basic
right of transfer upon discovery of health or safety hazards in non-coal
mines. Such a standard, he argues, triggers the language of section

10l(a)(7) of the Act, which provides in pertinent part as follows:
Where. appropriate, the mandatory standard shall provide that
where a determination is made that a miner may suffer material
impairment of health or functional capacity by reason of exposure to the hazard covered by such mandatory standard, that
miner shall be removed from such exposure and reassigned. Any
miner transferred as a result of such exposure shall continue to
receive compensation for such work at no less than the regular
rate of pay for miners in the classification such miner held
inunediately prior to his transfer.
Anaconda dismisses Clemens' arguments by pointing to the actual
provisions of the Act and its health and safety regulations. Anaconda claims
that Clemens' pay reduction would constitute discrimination under section
lOS(c)(l) only if he had been the subject of medical evaluations and
potential transfer or actually transferred under the authority of a standard
published pursuant to section 10l(a)(7) of the Act. Anaconda contends that
provisions of section 10l(a)(7), regarding maintenance of pay upon transfer,
cannot be read as creating an independent statutory right, but instead are to
take effect only upon promulgation of related health and safety regulations.
However, such mandatory health and safety regulations have only been
promulgated for coal mines, under 30 C.F.R. 90 ("Health Standards for Coal
Miners with Evidence of Pneumoconiosis"). Since no similar regulations
(allowing transfer for medical reasons with no reduction of pay) have been
promulgated for non-coal mines, Anaconda argues that there is no legal
requirement to pay Clemens a wage other than that normally paid for the job
into which he was transferred. Therefore, Anaconda denies that discrimination under section lOS(c)(l) of the Act has occurred.
Upon careful examination of the Act and its regulatory provisions, I
concur with Anaconda's arguments and conclude that no statutory right to
medical evaluation, and resulting transfer with maintenance of pay, exists
for non-coal mines. Section 101 of the Act provides guidelines for the
development and promulgation of mandatory health and safety standards.
Within that section, the Secretary is given the discretionary power to issue
standards providing for the transfer of a miner upon a medical determination
that exposure to hazards "covered by such mandatory standards" may result in
health impairment. Further, any miner transferred under mandatory standards
and as a result of exposure to such hazards shall not suffer a reduction in
pay. 30 U.S.C. § 8ll(a)(7).
Under these provisions, the key to the right of transfer with maintenance of pay is the promulgation of regulations where deemed appropriate by
the Secretary. The Secretary has exercised such discretionary rule-making
power by affording coal miners having evidence of mine-related lung disease
the option of transfer while retaining their regular rate of pay. 30 C.F.R.
§§ 90.3, 90.102-103. However, no similar rule pertaining to non-coal mines
has been promulgated. Clemens therefore fails in his attempt to establish
discrimination based upon his alleged exercise of a second form of protected
activity at the Carr Fork copper mine.

143'1

Clemens argues that existence of specific regulations (including medical
examination procedures, optional transfer and pay-maintenance provisions) is
not necessary to guarantee the maintenance o'f pay as provided in section
10l(a)(7) of the Act. Instead, Clemens claims that the provisions of
standard 30 C.F.R. § 57.18-2 afford a general right of transfer, thereby
triggering pay-maintenance provisions of se~tion 10l(a)(7) of the Act.
I find this argument to be based on a misinterpretation of the Act and
30 C.F.R. § 57.18-2. The regulation provides in 57.18-2(a) that each working
place shall be examined at least once each shift_ (by a person designated by
the operator) for conditions which may adversely affect safety or health.
Furthermore, 57.18-2(c) provides in pertinent part as follows:
Conditions that may present an imminent danger which are
noted by the person conducting the examination shall be
brought to the immediate attention of the operator who
shall withdraw all persons from the area affected ••••
Such regulatory provision does not afford automatic rights of transfer
upon a finding of conditions that may affect health or safety. Instead the
operator is required to withdraw miners from an area presenting potential
imminent danger. The Act defines imminent danger as a "condition or practice
in a coal or other mine which could reasonably be expected to cause death or
serious physical harm before such condition or practice can be abated." 30
u.s.c. § 802(j).
No evidence of such imminent danger was presented in this case.
Therefore, Clemens incorrectly claims that the pay maintenance provisions of
section 101(a)(7) of the Act are triggered through application of standard
57.18-2. Nor should the provisions of 10l(a)(7) be read as creating an
independent right to continued pay levels upon transfer, as the provision is
applicable only where specific regulations regarding the right to transfer
have been promulgated. Accordingly, I find that Anaconda had no duty to
withdraw or transfer Clemens, and hence no duty to maintain Clemens' salary
upon voluntarily granting his request for a transfer.
Swnmary
I find Clemens' claims of protected activities to be unsubstantiated.
Therefore, I conclude that Clemens' pay reduction, following his transfer
made for health reasons, does not constitute a prima facie case of discrimination in violation of section 105(c)(l) of the Act. Accordingly, a discussion of appropriate relief for the alleged discrimination is unnecessary.

, ,. -1 'l ~i ()

ORDER

Anaconda's motion, heretofore reserved, is therefore granted and the
complaint is dismissed.

C~d?~.
vi;f:f: Vail
Administrative Law Judge
Distribution:
James E. Hawkes, Esq., King and Hawkes, (Certified Mail)
301 Gump & Ayers Building, 2120 South 1300 East, Salt Lake City, Utah
Leslie M. Lawson, Esq., Anaconda Minerals Company (Certified Mafl)
555 Seventeenth Street, Denver, Colorado 80202

/blc

143~

84106

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

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

AUG 1. 0 1983

CIVIL PENALTY PROCEEDINGS
Docket NO. WEST 80-6-M
A.C. No. 42-00784-05001
Docket No. WEST 80-81-M
A.C. No. 42-00550-05001 R
Docket No. WEST 80-82-M
A.C. No. 42-00784-05002 R
Blue Lizard and Markey Mines
DECISION

Appearances:

James H. Barkley, Esq., Office of the Solicitor
U. S. Department of Labor, Denver, Colorado
for Petitioner;
Calvin Black, Blanding, Utah,
for Respondent.

Before:

Judge Vail
PROCEDURAL HISTORY

In these cases, petitioner seeks to have citations affirmed and civil
penalties assessed against respondent Calvin Black Enterprises. Respondent
is charged with mine safety violations, and refusal to allow unrestricted
MSHA mine inspections. Pursuant to agreement by the parties, the cases were
consolidated for hearing and decision. Upon notice to the parties, a hearing
on the merits was held on February 9, 1982 in Salt Lake City, Utah under the
provisions of the Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(the "Act"). Subsequent to the hearing, the parties filed letter memoranda.
ISSUES
1) Was respondent properly charged with safety violations in the Markey
Mine, and if so, what civil penalties are appropriate?
2) Were representatives of the Secretary unlawfully barred by
respondent from conducting an inspection of respondent's Blue Lizard and
Markey Mines, and if so, what civil penalties should be assessed?
Docket No. WEST 80-6-M·
Citation Nos. 336808 and 336809 were issued on May 17, 1979, when MSHA
inspector Ronald Beason visited respondent's Markey uranium mine near

1'1·10

Blanding, Utah. During the inspection, Beason noted employees of an independent contractor (Sanders Exploration Co.) working underground in
conditions allegedly violating mandatory safety standards promulgated under
the Act.
Citation No. 336808 charges respondent with violation of mandatory
safety standard 30 C.F.R. § 57.15-30 which provides as follows:
A 1-hour self-rescue device approved by the Mine
Safety and Health Administration shall be made
available by the operator to all personnel underground.
Each operator shall maintain self-rescue devices in
good condition.
Beason testified that at the time of his inspection, he observed a geologist
and two helpers (all employees of Sanders Exploration Co.) working underground in a return air area without self-rescue devices. The geologist had
been issued a self-rescuer, but left it in a jeep approximately 750 feet
away. His two helpers had not been issued self-rescuers, nor had they been
instructed in the use and need for such devices (Tr. 36, 37, 56). Inspector
Beason testified that self-rescuers filter contaminated air, and in the event
of a fire, smoke and fumes could overcome employees not equipped with these
devices (Tr. 20).
Citation No. 336809 charges respondent with failure to provide adequate
escape routes before allowing use of a gasoline-powered jeep underground in
the mine. Petitioner contends that such a situation violates mandatory
safety standard 30 C.F.R. § 57.4-52, which provides as follows:
Gasoline shall not be stored underground, but may
be used only to power internal combustion engines
in non-gassy mines that have multiple horizontal
or inclined roadways from the surface large enough
to accommodate vehicular traffic. Roadways and
other openings shall not be supported or lined with
combustible material. All roadways and other openings
shall be connected with another opening every 100 feet
by a passage large enough to accommodate any vehicle
in the mine.
Beason testified that during his mine inspection he observed the geologist
and his crew using a jeep approximately 3,000 to 4,000 feet underground, in
the fresh air side of a drift. Mine supervisory personnel informed him that
the jeep's engine was gasoline-powered. The mine did not have cross-cuts
every 100 feet. Such cross-cuts, Beason contends, are necessary to allow
workers to bypass an area in the event of fire or air contamination
(including that caused by gasoline engine exhaust) (Tr. 40-42).
While respondent does not specifically deny the alleged violations, the
citations are contested on several other grounds. First, the geologist and
his crew are said to be employees not of the mine, but of an independent

1441

contractor. In addition, respondent claims that on the day of the
inspection,. the geologists and two helpers arrived at the mine and began
working before mine personnel could supervise their activities. Accordingly,
respondent suggests that it should not be held responsible for the workers'
failure to comply with safety standards. Secondly, respondent's owner
maintains that he knows of no fires having e~er occurred in uranitnn mines,
and contends that the safety violations are insignificant (Tr. 105).
Furthermore, he characterizes the citations in general as being "nit-picky,"
and suggests that the safety violations were issued by MSHA in an attempt to
create a confrontational situation, and set an example in the community (Tr.
106' 112).
I find that respondent's arguments are without merit. It is well
established that an owner-operator of a mine can be held responsible without
fault for a violation of the Act committed by an independent contractor. In
reviewing the Secretary's decision to proceed against an operator for a
contractor's violation, the Commission must determine if such choice was made
for reasons consistent with the purposes and policies of the Act. Old Ben
Coal Co., 1 FMSHRC 1480 (October 1979), aff'd., No. 79-2367 (D.C. Cir.
(January 6, 1981); Cyprus Industrial Minerals Company, 3 FMSHRC 1 (January
1981), aff'd, 664 F. 2d 1116 (6th Cir. 1981); Phillips Uranium Corp., 4
FMSHRC 549 (April 1982). Part of such a determination includes an evaluation
of the degree of control retained by an operator, and whether the operator's
miners are exposed to the hazard.
In this case, the independent contractor was hired by the respondent to
conduct geological surveys in an operating mine. The activities involved
workers untrained in mine safety, and extended over the period of one year
(Tr. 105). Safety violations occurring during the course of such activities
endangered not only the employees of the independent contractor, but also
employees of the mine. It was therefore the operator's duty to monitor and
control the independent contractor's workers and their activities as they
affected general mine safety considerations. Accordingly, I find that
respondent is liable for the safety violations at issue.
Furthermore, I reject respondent's contention that the citations should
be dismissed because they involved "insignificant" safety violations, and
represented improper motives on the part of MSHA. The fact that respondent
knows of no accidents in uranium mines caused by the safety violations involved in this case does not excuse his non-compliance with mandatory safety
regulations. Nor does the evidence show that the inspector had other than
proper motives in issuing citations for violations of mandatory safety
regulations in this case. I therefore conclude that respondent should be
held responsible for violation of the Act's safety standards, and that
citation Nos. 336808 and 336809 were properly issued.
Docket Nos. WEST 80-81-M and 80-82-M.
Citation Nos. 336695 and 336696 were issued for respondent's alleged
refusal to allow entry by representatives of the Secretary into the Blue
Lizard and Markey Mines for the purpose of conducting mine inspections.
Respondent is charged with violating section 103(a) of the Act, which

1 l. '-1,.·.:..,>
i ,r.

requires that underground mines be inspected at least four times a year, and
provides MSHA inspectors with the right of entry to, upon, or through any_
mine. Advance· notice of an inspection is not required.
Ronald Beason (MSHA inspector) and Benjamin Johnson (special investigator for MSHA) testified that on July 2, 1979 they arrived at respondent's
Blue Lizard Mine for the purpose of conducting a safety inspection. Johnson
had been instructed to accompany Beason following a telephone call from
Calvin Black (owner of the Blue Lizard and Markey Mines) to the MSHA area
office made shortly after the Markey Mine inspection of May 17, 1979, which
resulted in the issuance of two safety violation citations. During the call,
Black allegedly stated that he did not intend to allow any further inspections of his mine properties (Tr. 76).
Beason testified that upon arrival at the Blue Lizard Mine, two of
respondent's representatives informed Beason and Johnson that they were
trespassing, and denied them entry into the mine. The mine representatives
claimed that they had neither the authority nor the permission of the owner,
Calvin Black, to allow such entry. In addition, they produced a notice
issued by Black, stating that no person was to be permitted on the property
without specific written permission from the owner. Beason and Johnson were
then asked by mine personnel to fill out a form. Although the inspectors
orally provided the requested information, they refused to sign the
form. 1; Following further heated discussion, during which the mine
representatives were read applicable portions of Section 103(.a) of the Act
and informed of MSHA's legal right to inspect, Beason and Johnson abandoned
their attempt to gain entry to the mine. They had not been specifically
informed that they would be prevented from conducting an inspection, but due
to the hostile and emotional confrontation, believed that they would be
physically restrained from doing so (Tr. 59, 83). Accordingly, citation and
withdrawal order No. 336695 was issued.
A second citation No. 336696, with associated withdrawal order, was
issued on the same day at the Markey Mine. A similar confrontation and
denial of entry allegedly prevented Beason and Johnson from conducting an
inspection of that mine (Tr. 28-30, 79).
Respondent, on the other hand, claims that Beason and Johnson were not
prevented from conducting an investigation. Instead, under the express
orders of respondent's owner, they were given notice that they were trespassing, as anyone else entering the mine property without permission would
be (Tr. 108). Such notice, respondent contends, was necessary due to general
liability concerns and because the owner "didn't want the MSHA inspectors to

1/ At the hearing, however, respondent admitted that Beason's "signature"
had been added to the form by the mine personnel (Tr. 63-65).

go there without notice and without permission" (Tr. 106, 107). However,
respondent's owner testified that mine personnel were given specific instructions not to use force in preventing "trespassers" from entering the
mine properties (Tr. 108). Respondent further denies informing MSHA by
telephone that inspections subsequent to the one at the Markey Mine would not
be allowed. Rather, respondent maintains that the call was made merely to
give notice to MSHA of the owner's intent to see an attorney and take
appropriate action against people (both MSHA inspectors and others) entering
his property without permission (Tr. 107).
Despite respondent's claims that Beason and Johnson were not expressly
prohibited from conducting mine inspections, I find that the mine personnel
(acting under the owner's express instructions) effectively prevented access
to the mines by demanding that notice and permission precede entry onto
respondent's property. A mandatory inspection, as provided in section l03(a)
of the Act, was therefore obs.tructed.
Section 103(a) of the Act requires no advance notice beforaAn inspection. Furthermore, although the language of the Act makes no reference
to obtaining search warrants or owner permission prior to a mine inspection,
courts have recognized a Congressional intent to provide an absolute right of
entry to conduct legitimate inspections of mines covered by the Act, without
need for a search warrant. Such a mine inspection program has been justified
as necessary to protect miners from unusually severe occupational health and
safety hazards. Marshall v. Nolichuckey Sand Co., Inc., 606 F. 2d 693 (6th
Cir. 1979). In addition, warrantless inspections have been held by the
United States·supreme Court to satisfy the constitutional constraints of the
Fourth Amendment, since the certainty and regularity of the Act's inspection
program provide an adequate substitute to a warrant. Donovan v. Dewey, 452
U.S. 594, 101 S.Ct. 2534 (1981). Failure of an operator to permit an
inspection has been held by the Commission to be a violation of the Act, for
which a penalty must be imposed. Waukesha Lime and Stone Company, 3 FMSHRC
1702 (July 1981).
In accord with the Act and the above cases, a MSHA inspector's right to
inspect a mine is not dependent upon first obtaining permission of entry from
an owner. Furthermore, an owner's denial of entry without such permission
may reasonably be interpreted as obstructing the exercise of mandatory mine
inspections under the Act. Upon encountering such denial of access to a
mine, a MSHA inspector need not test his or her need to force entry to conduct an inspection. Upon a careful review of the evidence in this case, I
find that respondent's owner required his permission for entry to the Blue
Lizard and Markey Mines, and therefore effectively prevented a lawful,
warrantless inspection of the premises by representatives of the Secretary.
Beason and Johnson identified themselves and their purpose at the mines, and
yet were notified by mine personnel that their presence, without permission
granted by the mine owner, constituted a trespass (Tr. 13, 29, 94). The mine
personnel's statements were authorized by the mine owner, and reflected the
owner's admitted desire to prevent MSHA inspectors from entering the property
without notice and permission (Tr. 107).

1 l_t ':i .J
JJ

"

•

Since the provisions of section 103(a) of the Act and case law do not
require notice and permission to precede an inspection, I conclude that
Beason and Johnson were effectively denied free and ready access to
respondent's mines. The MSHA inspectors were not required to force entry to
conduct a mine inspection. Therefore, Beason rightly issued citations based
upon respondent's failure to provide unconstrained entry to the mines for the
purpose of conducting an inspection mandated by the Act. Accordingly,
citation Nos. 336695 and 336696 are affirmed.
PENALTIES
Upon determining that the four citations described above were properly
issued, the next issue is determining the appropriate civil penalties to be
assessed for each violation. Section llO(i) of the Act sets forth six
criteria to be considered in determining the amount of civil penalty:
In assessing civil monetary penalties, the Commission shall
consider the operator's history of previous violations, the
appropriateness of such penalty to the size of the business
of the operator charged, whether the operator was negligent,
the effect on the operator's ability to continue in business,
the gravity of the violation, and the demonstrated good faith
of the person charged in attempting to achieve rapid compliance
after notification of a violation.
The Secretary's proposed civil penalties for each of respondent's
violations are as follows:
Citation No.
336808
336809
336695
336696

Violation Charged
30 C.F.R. § 57.15-30
30 C.F.R. § 57.4-52
30 u.s.c. § 813(a)
30 u.s.c. § 813(a)

$

Amount
8.00
10.00
100.00
100.00

Mine History, Size, Financial Status.
At the hearing, no evidence of previous violations was introduced.
Eight miners were employed at the Markey Mine, while three worked at the Blue
Lizard Mine (Tr. 99, 100). Respondent's owner, Calvin Black, stipulated that
payment of the proposed penalties would not impair the company's ability to
continue in business (Tr. 45).
Negligence.
Respondent's failure to comply with regulatory requirements involving
self-rescuing devices and the operation of gasoline-powered engines underground constitutes ordinary negligence. Under the Act, the mine operator is
required to be on the alert for, and correct, conditions representing hazards
to the health and safety of people working in the mine. Under the facts of
this case, respondent failed to exercise reasonable care in ensuring that all
workers in his mine Cir.eluding employees of an independent contractor)
complied with mandatory regulatory requirements.

144~

On the other hand, respondent's violation of section 103(a) of the Act
was intentional and thus the equivalent of gross negligence. Following an
inspection of the Markey Mine, which resulted in the issuance of citations
termed by respondent's personnel as "nit-picky and asinine" (Tr. 56, 111),
respondent enforced a policy designed to prevent further inspections without
notice or permission, and denied free mine entry for MSHA inspections. I
find that such factors support petitioner's request that the associated
proposed penalties be increased.
Gravity.
The gravity involved in respondent's violation of mandatory safety
standards is moderate. Only two workers were not equipped with self-rescuing
devices, and their use of a gasoline-powered jeep would end with the
completion of their temporary surveying assignment. In contrast, I conclude
that respondent's violation of section 103(a) of the Act was serious.
Respondent's desire to restrict MSHA inspections, and its disdainful attitude
toward citations that had already been issued, indicates disregard for the
Act and the enforcement of its provisions. Again, such factors indicate that
the associated proposed penalties should properly be increased.
Good Faith.
While respondent demonstrated good faith in rapidly abating the
conditions violating mandatory safety standards, such good faith was not
shown in the situation involving respondent's refusal to admit MSHA inspectors without notice or permission. Upon issuance of citations and
withdrawal orders, respondent ignored the withdrawal orders and continued
mine operations (Tr. 26, 32, 79). Respondent's attempt to introduce into
evidence a document in which the inspector's "signature" had been filled in
by mine personnel seems to indicate a further lack of good faith.
CONCLUSION
Accordingly, based upon the testimony introduced at the hearing and the
contentions of the parties, and considering the criteria of section llO(i) of
the Act, I conclude that the proposed penalties for respondent's violation of
the mandatory safety standards stated in Citation Nos. 336808 and 336809 are
appropriate and should be affirmed.
The Secretary originally proposed penalties of $200 each for citation
Nos. 336695 and 336696. That amount was subsequently reduced to $100 each by
a compliance officer following the operator's assertion that there was a
personality conflict involved in the issuance of the citations (Tr. 110).
Based upon a careful review of all the evidence of record in this case, I am
persuaded that the penalty of $100 each for these two citations is too low.
The credible evidence of record shows that respondent deliberately
attempted to prevent MSHA inspections conducted without notice by requiring
owner permission prior to entry onto mine property. I find that respondent's

11·1G

representatives, in their continued demands for such permission, attempted to
discourage and .intimidate the MSHA inspectors. I accept as most credible the
inspectors' testimony that they believed the mine inspections could not be
conducted without continued altercation and the possibility of encountering
physical restraint. In addition, respondent's continuation of mining
operations following issuance of withdrawal orders reinforces my conclusion
that respondent deliberately disregarded MSHA's authority in this matter.
Accordingly, I find the penalty as originally assessed at $200 for each
violation to be fair under the circumstances. My determination to assess
penalties in this case is consistent with Commission decisions, stating that
the assessment of penalties during penalty proceedings involves a de novo
determination based upon the criteria of section llO(i) of the Act-,-a~
information developed in the course of the adjudicatory proceeding.
Sellersburg Stone Company, 5 FMSHRC 287 (March 1983); Eastover Mining
Company,
FMSHRC
(July 1983) (ALJ).
I therefore assess the following penalties for respondent's violation of
a provision of the Act, and its mandatory safety standards:
Citation No.
336808
336809
336695
336696
Total:

Amount
$ 8.00
10.00
200.00
200.00
$418.00

ORDER
WHEREFORE IT IS ORDERED that citations Nos. 336808, 336809, 336695 and
336697 are affirmed and respondent shall pay the above-assessed penalties
totaling $418.00 within 30 days of the date of this decision.

~-,! ~?.~/

;:;~/1;f-t-(. &,,-? c-~ ~--t--vi ri{'1 E. Vail
Administrative Law Judge

Distribution:
James H. Barkley, Esq., (Certified Mail) Office of the Solicitor
United States Department of Labor
1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294
Mr. Calvin Black, President, (Certified Mail) Calvin Black Enterprises
P.O. Box 906, Blanding, Utah 84511

/blc

144'/

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

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

AUG 1 71983

Civil Penalty Proceeding
Docket No: LAKE 82-79
A.C. No: 11-00590-03145

v.
OLD BEN COAL COMPANY,
Respondent

.

OLD BEN COAL COMPANY,
Contestant

Contest Proceeding
Docket No: LAKE 82-67-R
Order No: 1222 940; 3/15/82

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
and
UNITED MINE WORKERS OF
AMERICA,
Respondents

No. 26 Mine

DECISION
Appearances:

Mark M. Pierce, Esq., Chicago, Illinois, for
Old Ben Coal Company,
Miguel J. Carmona, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois for
Secretary of Labor

Before:

Judge Moore

This consolidated review anq penalty proceeding~was tried
in Evansville, Indiana, on October 19-20, 1982. Final briefs for
the parties were submitted on January 25, 1983. The parties have
been advised that the cases were reassigned to me and, by their
silence, are deemed to have waived any objections to my deciding
the case on the basis of the record already made.
The controversy involved here stems from a withdrawal order
issued on March 15, 1982, charging an unwarrantable failure
pursuant to section 104(d), of the Mine Safety Act, for an
alleged violation of 30 C.F.R. § 75.1722(a).

On the date in question, MSHA Inspector Wolfgang Kaak,
accompanied by his supervisor Michael Wolfe, and Deputy Inspector
Gary Brandon, conducted a spot inspection on respondent's No. 26
mine,
(Tr. 272). They proceeded underground, and at approximately
10:30 a.m., they arrived at the 12CM-5 area in the 16th East
section (Tr. 274).
Once there, Inspector Kaak noticed tre belt drive head was
not guarded as required in the standard. He then issued Withdrawal
Order No. 1222940, which reads in part as follows: "The belt drive
for the 12CM-5 belt was not adequately guarded. to prevent persons
from coming in contact with the moving drive. The guarding had
been removed and was lying along the ribs and on the floor."
(Tr. 274}.

~

The area that needed guarding was approximately 6 to 8 feet in
length along each side of the belt drive.
However, other than one
4 foot by 6 foot section on the east side, no guarding was installed.
This one installed section matched the pieces of guarding lying
on the floor. (Tr. 278, 279, 280, 290-292).
Inspector Kaak's decision to issue the order was based in
part on the conditions present at the belt head drive. He determined
an accident was likely because thE: working section was ready to
load coal;
the belt was energized with the remote control switch
in operation; there were repairmen working in the area and the
floor was slippery. Voltage on belt starter boxes is usually
about 480 volts, the starter box was about five feet from the belt
drive. (Tr. 281, 283-284, 292, 293, 295, 310,311).
The belt transported coal from the working unit to a main line
belt which then transported the c"oal out of the mine. When in
operation, the belt ran at 350 to 400 feet per minute.
If a miner
or other person brushed against these rollers while the belt was
operating, i t was likely they would become caught and injured or
killed.
Because the belt was in a highly accessible area, and it
was common for those in the area to walk close by or underneath
the belt, rather than going around it, the chance of such an accident
assuming the belt was running, was likely.
In fact, Inspector
Kaak had been personally involved in one such accident.
(Tr. 275-277,
295-297, 307-308, 334.)
Based on these considerations and his determination, caused
by his belief that an accumulation of at least one inch of float
coal dust covered the sections of guarding on the floor, that the
guard had been off for at least one week, Inspector Kaak issued the
order.
Inspector Wolfe concurred with Inspector Kaak's decision
that a 104(n) violation was warranted. (Tr. 282, 310, 314, 332,
337-338, 349).
Respondent asserted that the sections of guarding lying on
the floor had been there several months and were not part of the
guarding that was supposed to be installed around the 12CM-5
belt drive.
(Tr. 366,367, 381). While Old Ben concedes a violation
in that at the time of the inspection the drive was not properly
guarded, several of its employees denied allegations concerning
the duration that the drive was inadequately guarded.

1449

On March 16, 1982, Kenny Kondoudis, a belt shoveler and
UMWA Safety Committeeman, told Inspector Kaak that the guarding
was on the belt drive in question the night before and that he
had not taken the guarding off to clean the drive. (Tr. 363-365,
376~77).
Kondoudis had, Inspector Wolfe claimed, reported to him
during the hearing that he had been confused about which belt
,
drive the citation had been written on. (Tr. 351-3). However, he
was not called as a witness and as Old Ben pointed out, Kondoudis
was very familiar with the areas of the mine. (Tr. 399).
Later, on the day the citation was issued, Old Ben had a
crew reinstall guarding on the 12CM-5 belt drive.
In place of the
hog wire type screen that the old guarding and sections on the
floor were made of, a new wire mesh type guarding was installed.
(Tr. 386-387, 390-303).
One additional fact concerning the Pre-Shift Report deserves
mention. Normally, the preshift examiner for the 8:00 a.m.
shift would have observed the belt drive at approximately 5:00 a.m.
(Tr. 379). However, the Pre-Shift Exam Book (Exhibit R-4),
contained no reference to the missing guard. (Tr. 377-379, 391).
Old Ben concedes and the evidence clearly establishes that
a violation of 30 C.F.R. 75.1722(a), did occur. Old Ben contends
that Withdrawal Order No. 1222940 was improperly issued under
Section 104(d) (1) and should be vacated and "declared void ab
--initio" for three reasons:
(1)
It is not based on a valid underlying citation issued
under Section 104(d) (1). This citation (No. 1222597 dated
3/11/82) was upheld in the bench decisions in related dockets
numbered LAKE 82-85 and LAKE 82-66-R.
(2) That the conditions cited in Order No. 1222940 did not
meet the significant and substantial criteria of 104(d), the
conditions then in existence "did not pose a reasonable likelihood that an injury would occur."
This argument is rejected for two reasons. First, the
facts in existence when the subject order was issued did show
that this was a significant and substantial violation. Second,
Old Ben's attorneys have demonstrated in their West ~irginia Law Review
article (attachment 2 to the brief}
"significant and substantial"
is not a necessary finding for a 104(d} (1) order.
(3)
The final argument is that the cited violation did
not constitute an unwarrantable failure under 104(d} (1). In order
to be considered unwarrantable, Old Ben's failure to comply with
the mandatory safety standard must have been a result of its
negligence, or attributable to it through the negligence of its

1450

As stated, there was a clear violation of 30 C.F.R.
§75.1722(a), a mandatory safety and health standard. However,
for such violation to be unwarrantable the violative condition
must have been one that the operator knew or should have
known existed or which the operator failed to correct through
indifference or lack of reasonable care.
The determination of whether Old Ben should have known about the
violation largely depends on how long it was in existance. If,
as Inspectors Kaak and Wolfe represented, the guard on the 12CM-5
belt had been off "for at least one week", it would be easy to
infer that Old Ben "knew or should have known" about the
violation.
The belt drive was in an easily accessible working
area of themine.
However, this inference can not be so easily drawn if the
guard had been.in place during the previous shift as Old Ben
contends. At best, the circumstances surrounding the guarding's
removal are questionable. There is no evidence to support
Inspector Kaak's assumption that the pieces of guarding on the
floor were part of the missing guarding.
In fact, when later
on that day the guarding was reinstalled, a new wire mesh type,
different from what was found on the floor, was installed. The
discovery of these sections and the Inspector's determination
that they had been there for at least one week forms the basis
of the Secretary's contention that the guarding had been off
for a period long enough for Old Ben to have known about the
violation.
This evidence is not strong enough to rebut Old Ben's
contrary evidence. This contrary evidence consists of:
(1)
The direct testimony of Donald Kellerman, the belt
supervisor, that the 12CM-5 belt drive was properly guarded at
3:30 a.m. the morning the citation was issued.
(2)
UMWA Safety Committeeman Kenny Kondoudis' report to
his supervisors and Inspector Kaak that the 12CM-5 belt drive
had been properly guarded that morning.
(3)
The failure of the Pre-Shift Exam Report, filled out at
approximately 5:00 a.m. that morning, to indicate any irregularity
in the guarding on the 12CM-5 belt drive.
The only rebuttal to this evidence was Inspector Wolfe's
assertion that Kenny Kondoudis admitted to him that he had been
confused about which belt drive was in question. However,
Kondoudis was thoroughly familiar with the mine. Additionally,
several persons had heard him say that the guard had been up.
(Tr. 351, 364, 398). Inspector Wolfe's assertion that Kenny
Kondoudis was confused stands alone.

1451

The weight of evidence points in favor of Old Ben and its
contention that the belt drive had been properly guarded earlier
that morning.
Thus, since the circumstances surrounding the
occurrence of this violation are unknown, the Secretary'·s determination that the violation occurred as a result of Old Ben's
unwarrantable failure to comply with the relevant safety standard
is found to be unsupportable. The inference that Old Ben "knew
or should have known" of the violation can not stand based on
the evidence as presented.
In this case, it has been found that
the violation did not occur as a result of the unwarrantable
failure of tbe mine operator to comply with the cited standard,
thus failing the (d) (1) criteria. However, the significant and
substantial finding as well as the underlying (d) (1) citation
have been upheld.. Accordingly, Withdrawal Order No: 1222 94 0
is modified to reflect that it is a citation issued pursuant to
§ 104(a) of the Act.
As to the penalty, there was no negligence proved and based
on prior findings with respect to the likelihood of an accident
occurring due to the violative condition, and the injuries
which could have resulted therefrom, I conclude that the
violation was serious.
I find that Old Ben is a large coal mine operator but not
one of the giants of the industry; it has an unsatisfactory history
of previous violations; and Old Ben proceeded in good faith to
achieve compliance with the violated safety standard after
receiving notification of the violation.
Weighing these various factors, it is concluded that a penalty
of $300 is appropriate and the same is assessed.
ORDER
(1)
Old Ben is ordered to pay a civil penalty of $300 to
the Secretary of Labor within 30 days of the issuance of this
decision.
(2)
All proposed findings of fact and conclusions of law not
incorporated herein are rejected.

~ (\ 'In #k/
Charles C. Moore, Jr.,
Administrative Law Judge

1452

a-

Distribution:
Mark M. Pierce, Esq., Law Department, Old Ben Coal C0mpany,
69 W. Washington Street, Chicago, IL 60602 (Certified Mail)
Miguel J. Carmona, Esq., Office of the Solicitor, U.S.
Department of Labor, 230 So. Dearborn Street, Chicago, IL 60602
(Certified Mail)
Harrison Combs, Esq., United Mine Workers of America, 900 15th
Street, NW., Washington, D.C. 20005 (Certified Mail)

1453
/db

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

22041

AUG -18 11)3

CONTEST PROCEEDINGS

OLD BEN COAL COMPANY,
Contestant

Docket No: LAKE' 82-75-R
Order No: 1223403 3/3/82

v.
SECRETARY OF LABOR, and
UNITED MINE WORKERS OF
AMERICA,
Respondents
DECISION
Appearance:

Mark M. Pierce, Esq., Old Ben Coal Company,
Chicago, Illinois, for Contestant;
Miguel J. Carmona, Esq., Office of the
Solicitor, U.S. Department of Labor, Chicago,
Illinois, for Respondents.

Before:

Judge Moore

The above case was re-assigned from Judge Lasher to me
on June 23, 1983. Withdrawal order No: 1223403 was issued
under §104(d) (1) of the Federal Mine Act and the underlying
citation listed on the order is No: 1222957 issued on March
11, 1982. The matter came on for hearing before Judge·
Lasher on October 20, 1982, in Evansville, Indiana. At that
time certain stipulations were read into the record. Old
Ben admits the violation occurred, admits it was due to an
unwarrantable failure and that it was significant and
substantial.
In fact it has agreed to pay the full proposed
assessment associated with this citation.
It challenges,
however, the technical validity of the order.
Old Ben argues that the underlying citation was .. invalid.
It also argues that even if the underlying citation is
valid, the order in issue in this case is not valid·because
it should have been issued under §104(d) (2) instead, of
104 (d) (1). Old Ben argues that once a citation is· issued
under §104(d) (1) only one order can be issued thereafter
under that section.
It bases this argument on the fact that
the wording of the section states that if the inspector
finds an unwarrantable violation within 90 days after issuing

the citation "he shall forthwith issue an order requiring
• • • • " Old Ben contends that that section does not authorize
issuing multiple orders under 104(d) (1).
I disagree.
If a 104(d) (1) citation is issued early in
an inspection and shortly thereafter a 104(d) (1) order is
issued, any additional order for unwarrantable failure
issued during that inspection would have to be issued under
§(d) (1). The (d) (2) orders cari only be issued during "any
subsequent inspection • • • • " Old Ben's interpretation
would not allow for the issuance of (d) (1) orders during the
same inspection in which the (d) (1) citation was issued and
for that reason alone is incorrect.
I would agree, however,
that once a (d) (1) order is issued, that any unwarrantable
violation found during a subsequent inspection, should be
issued under 104(d) (2).
At the time that the briefs were prepared Judge Lasher
had already rendered a bench decision in which he had upheld
the underlying 104(d) (1) citation. Counsel for Old Ben
nevertheless requested Judge Lasher to vacate the order
because Judge Lasher's decision on the underlying citation
was erroneous.
No reasons as to why counsel thought the
decision to be erroneous were given.
It is curious as to
how counsel expected to prevail in that kind of argument.
I can see no difference in the effect of the two orders
that can be issued under §104(d). Once the orders start
issuing they continue until an inspection of the mine "disclose
no similar violations." Such an inspection puts the operator
back at the beginning of 104(d) (1). I therefore can not see
any prejudice to Old Ben resulting from the fact that this
order was issued under a (d) (1) rather than a (d) (2) •
In Secretary of Labor v. Old Ben Coal Company, 2 FMSHRC
1187 (June 1980) the Commission approved Judge Broderick's
treatment of a notice of violation and 3 withdrawal orders
issued under (104) (c) of the 1969 Coal Act. All of the
withdrawal orders had been issued under§ 104(c) (1) of the
old act, but only one of the three had been issued within
90 days of the notice of violation. The Commission held
that the effect of Judge Broderick's decision was to modify
the third and fourth orders so as to base them on t~ first
order rather than on the notice of violation. The Commission
said he had that authority.
In Secretary of Labor v. Consolidation Coal Company,
FMSHRC 1791 (October 1982) the Commission approved Judge
Melick's action of converting a 104(d) (1) order into a
104(d) (1) citation and then holding a hearing on the citation.
Judge Melick had earlier held the original 104(d) (1) citation
upon which the order in question was based to be invalid.

1455

Counsel for Old Ben Coal Company considers the Commission's
1980 Old Ben Company case discussed above as "illadvised, un.sound and premature • • • • "
(See brief at P.14).
The brief goes on to urge Judge Lasher, and me by substitution,
"to discount" the Commission's decision.
I have no authority
to disregard or "discount" a Commission decision and I am
surprised that counsel would urge that action.
In my view both of these cases are helpful to Old Ben.
Relying on these ~ases, I am converting the instant§ 104(d) (1)
order to a § 104(d) (2) order. Since the citation was issued
during an "ABC" inspection and the order in question here
was issued during a "CAA" inspection, this order was issued
during a subsequent inspection and should have been issued
under § 104 (d) (2) •
As such, its validity does not depend on the validity
of the 104(d) (1) citation but on the validity of 104(d) (1)
order No: 1222940. which was converted to a 104(a) citation
in Docket No: LAKE 82-67-R.
The order therefore fails since it is not underlain by
a valid 104(d) (1) order. But because Old Ben admits the
violation was unwarrantable and significant and substantial,
I can not convert the order to a 104(a) citation. I hereby
convert it to a 104(d) (1) citation and as such it is AFFIRMED.

~cJJt~t,

Charles C. Moore, Jr.,
Administrative Law Judge
Distribution:

Mark M. Pierce, Esq., Law Department, Old Ben Coal Company,
69 W. Washington Street, Chicago, Illinois 60602 (Certified Mail)
Miguel J. Carmona and Richard J. Fiore, Esqs., Office of the
Solicitor, U.S. Department of Labor, 230 So. Dearborn Street,
Chicago, Illinois 60604

1456

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

22041

1 9 l1:111r
-.'._:;:ij"
• ..,
I'"''""
t]

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

CIVIL PENALTY PROCEEDING
Docket No. SE 81-62-M
A.C. No. 01-01112-05002R

v.
Riverside Pit & Plant
RIVEPSIDE CLAY COMPANY,
Respondent
DECISION
Appearances:

Terry Price, Esq., Office of the Solicitor, U.S
Department of Labor, Birmingham, Alabama, for
Petitioner;
Lee H. Zell, Esq., Berkowitz, Lefkovits and Patrick,
Birmingham, Alabama, for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
Petitioner seeks a civil penalty for an alleged violation of
section 103(a) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 813 (a) ("the Mine Act"), for Respondent's refusal to
permit a duly authorized representative of the Secretary of Labor
to conduct an inspection of its facility.
Respondent contends
that its facility is not a mine but a refractory plant, and that
pursuant to an Interagency Agreement between MSHA and the Occupational Safety and Health Administration ("OSHA"), the jurisdiction
to regulate the facility is under OSHA. Pursuant to notice, the
case was called for hearing in Birmingham, Alabama, on April 12,
1983. Barton M. Collinge and Lawrence J. E. Hofer testified on
behalf of Petitioner. John c. Morris and Denis A. Brosnan testified on behalf of Respondent.
Both parties have filed posthearing
briefs with proposed findings of fact and conclusions of law.
Based on the entire record, and considering the contentions of the
parties, I make the following decision.

FINDINGS OF FACT
1. Respondent operates a clay pit from which it extracts
clay and a plant, located several miles from the pit, in which
it produces a re~ractory clay called Alapatch and various other
clay and non-clay refractories which it sells to customers.
2.
The plant employs about 60 workers, five of whom are
engaged in milling the clay preparatory to either bagging it and
shipping it to customers, or transporting it to a mixing area
in the plant.
3.
In the mixing area the clay is mixed with other materials
including silicon carbide, graphites, tar and other materials to
make products such as anhydrous tap hole materials used in blast
furnances, plastic refractories, and castable refractories.
Alapatch is used in some of the refractory manufacturing processes,
as well as clay from other sources.
Thus, some of the plastic
refractories contain Alapatch and some do not.
The so called
neutral refractories and fixed shape refractories, also produced at
the plant, do not contain Alapatch.
4.
In fiscal year 1981, approximately 70 to 75 percent of
the dollar volume of Respondent's sales from the plant was received
for refractory specialties and 25 to 30 percent for Alapatch.
5. MSHA conducted regular, spot and survey inspections of
Respondent's Pit and Plant beginning in August, 1973.
[Respondent
does not contest MSHA's jurisdiction to inspect its clay pit, but
only its jurisdiction over the plant].
The last regular inspection
was conducted on May 8, 1979. An accident investigation was conducted at the plant on February 4 and 5, 1981, following a fatal
accident on February 3. On February 10 and 11, an attempt was made
to follow up the investigation and the inspector was refused entry.
This proceeding arose out of that refusal of entry.
6. On May 9, 1979, following the execution of an Interagency
Agreement between MSHA and OSHA on March 29, 1979, MSHA notified
Respondent by letter that it was agreed that refractory clay
operations such as Respondent's plant would come under the
authority of OSHA while the clay mining would remain under MSHA.
On September 6, 1979, this decision was reversed and Respondent
was notified that MSHA and OSHA agreed that MSHA would have jurisdiction over the pit and plant. OSHA has never inspected the
plant.

7. Section A(3) of the Interagency Agreement provides that
the Mine Act would apply to mine sites and milling operations,
except where the Mine Act does not cover or apply to occupational
safety and health hazards on mine or mill sites (e.g. hospitals on
mine sites), or where no MSHA standards are applicable, then the
OSHAct would be applied.
8. Section B(2) of the Agreement refers to the Mine Act
which gives MSHA authority over mineral extraction and mineral
milling, and directs the Secretary in making a determination of
what constitutes mineral milling, "to give due consideration to
the convenience of administration resulting from the delegation to
one Assistant Secretary of all authority with respect to the health
and safety of miners employed at one physical establishment."
9.
Section B(4) of the Agreement provides that the term
milling may be expanded to apply to mineral product manufacturing
processes which are related to milling or the term may be narrowed
to exclude processes listed in Appendix A where such processes are
unrelated technologically or geographically to mineral milling.
Determinations shall be made by agreements between MSHA and OSHA.
10. Section B(5) of the Agreement provides that the following factors shall be considered in determining what constitutes
mineral milling:
the processes conducted at the facility, the
relation of all processes at the facility to each other, the
number of individuals employed in each process, and the expertise
and enforcement capability of each agency with respect to the
safety and health hazards associated with all the processes conducted at the facility.
The consideration of these factors will
reflect Congress' intention that doubts be resolved in favor of
inclusion of a facility under Mine Act coverage.
11. Section B(6) (b) provides inter alia that OSHA jurisdiction includes refractory plants whether or not located on mine
property.
12. Section B(8) provides that questions of jurisdiction
shall be resolved if possible by MSHA District Manager and OSHA
Regional Administrator in accordance with this agreement and
existing law and policy.
If a question cannot be resolved at the
local level it will be transmitted to the National offices and, if
necessary, to the Secretary.
13. Appendix A to the Agreement defines milling as "the art
of treating the crude crust of the earth to produce therefrom the
primary consumer derivatives.
The essential operation in all such
processes is separation of one or more valuable desired constituents of the crude from the undesired contaminants with which it
is associated." The Appendix further provides that milling consists

145~

of one or more of the following processes: crushing, grinding,
pulverizing, sizing, concentrating, washing~ drying~ roasting,
pelletizing, sintering, evaporating, calcining, kiln treatment,
sawing and cutting stone, heat expansion, retorting, leaching,
and briquetting.
Each of these processes is defined in the
Appendix.
ISSUE
Whethe~ MSHA has jurisdiction under the Mine Act to inspect
the operation of Respondent's Plant.

CONCLUSIONS OF LAW
1. The Federal Mine Safety and Health Review Commission and
the undersigned Administrative Law Judge are empowered to determine
whether the operation of the facility in question come within the
coverage of the Mine Act.
"MSHA's authority to regulate a workplace
is determined by the scope of the Mine Act's coverage . . • . "
Secretary v. Carolina Stalite Company, 4 FMSHRC 423, 425 (1982).
2. Doubts as to whether a facility is covered under the Mine
Act are to be resolved in favor of coverage.
DISCUSSION
In its Report on S. 717 which became the Mine Act, the Senate
Committee Human Resources stated
"The Committee notes that there may be a need to resolve
jurisdictional conflicts, but it is the Committee's
intention that what is considered to be a mine and to
be regulated under this Act be given the broadest
possible interpretation, and it is the intent of this
Committee that doubts be resolved in favor of inclusion
of a facility within the coverage of the Act."
S. Rep. No. 95-181, 95th Cong., 1st Sess. at 14 (1977), reprinted
in Legislative History of the Federal Mine Safety and Health Act
of 1977 at 602 (1978).
3. The Mine Act includes in its coverage the "milling of
. minerals, or the work of preparing . . . minerals." Section
3(h) (1) of the Act directs the Secretary "in making a determination
of what constitutes mineral milling" t6 ''give due consideration to
the convenience of administration resulting from the delegation to
one Assistant Secretary of all authority with respect to the health
and safety of miners employed at one physical establishment."

4. Although the MSHA-OSHA Interagency Agreement cannot
finally determine the jurisdiction of .the agencies involved,
Secretary v. Carolina Stalite Company, supra, the Commission will
give due deference to the interpretation of that agreement
advanced by the Secretary.
5. Respondent is subj~ct to the provisions of the Federal
Mine Safety and Health Act of 1977 in the operation of the
Riverside Plant.
DISCUSSION
It is clear and Respondent concedes that part of the work
performed in the Plant consists of mineral milling and is therefore under the coverage of the Mine Act.
Respondent argues that
milling constitutes only a small part of the operation of what is
essentially a refractory plant.
The expert witnesses for Petitioner
and Respondent differ sharply in their definition of refractory.
MSHA's expert testified that in his opinion at least some of the
refractory producing activities in Respondent's plant involved
milling. The Commission observed in Carolina Stalite, supra at
p. 424 that ".
'milling' and 'preparation' can be perceived
as words used, in a loose sense, interchangeably to describe the
entire process of treating mined materials for market .
. we
believe the 1977 Mine Act's use of both terms signals an expansive
reading is to be given to mineral processes covered by the Mine
Act, rather than requiring a clear distinction between what is a
milling or a preparation process."
I conclude based on an expansive reading of the term that at
least a part of Respondent's refractory production (that using
mined or milled minerals) involves the milling or preparing of
minerals and therefore comes under the Mine Act. All of the work
at the Plant is performed in a single facility, although in
separate buildings.
The Secretary has determined that administrative convenience would be served by delegating the authority
over health and safety at Respondent's plant to MSHA even though
part of the plant activities would normally fall under OSHA's
jurisdiction. The Mine Act gives the Secretary this authority and
there is no evidence in this case to justify the Commission's
overturning his exercise of that authority.
6. The refusal of Respondent to permit the MSHA inspector
to enter its plant to conduct an inspection is a violation of
section 103(a) of the Mine Act.
7.
Respondent is not a large operator.
It employs 60 people
at its plant and an unknown additional number at its clay pit.
From July 1, 1980 to February 28, 1982, its sales of Alapatch
amounted to $352,376.11, and its sales of "specialties" amounted

14G1

to $2,639,781.84.
From July 1, 1982 to December 31, 1982, it sold
276,085.86 Alapatch and 1,995,160.85 specialties.
I conclude that
it is of moderate size.
From August 1973 to February 1981, approximately 274 violations
were assessed against Respondent's pit and plant.
I conclude that
this is a moderate history and a penalty otherwise appropriate in
this case should not be increased because of it.
There is no evidence that a penalty in this case will have any effect on Respondent's ability to continue in business, and I conclude that it will
not.
8.
I conclude that the violation here was very serious.
It
involved the refusal to permit an inspector to follow up on a
fatality investigation.
The facts surrounding the fatality are not
part of the record in this case, but such an investigation is of the
greatest importance to the proper enforcement of the Act and the
protection of the safety and health of the employees.
Cf. Secretary
v. Waukesha Lime & Stone Company, 1 FMSHRC 512 (1979) (ALJ).
9.
Respondent contends that any penalty assessed in this case
should be nominal since Respondent is merely seeking through this
proceeding to have a determination made as to whether MSHA or OSHA
has jurisdiction. But the evidence shows that MSHA has inspected
the facility for many years.
Although one letter from MSHA indicated that OSHA had jurisdiction, it was promptly corrected. OSHA
has never inspected the facility.
It is important to note that
Respondent's refusal to admit the inspector followed a fatal injury
to an employee.
I conclude that Respondent knew or should have
known that MSHA had authority to inspect.
The violation was willful.
10. Based on the criteria in section llO(i) of the Act, I
conclude that an appropriate penalty for the violation is $500.
ORDER
Based on the above findings of fact and conclusions of law,
Respondent is ORDERED to pay the sum of $500 within 30 days of
the date of this decision for the violation found herein to have
occurred.

). p-'/

(Vl/\UZ __s'
1)

·

I

'

;

/,Y(,J i/~-'cf::.+7 {:'/<..__

James A. Broderick
Administrative Law Judge

Distribution:
Terry Price, Esq., Office of the Solicitor, U.S. Department of
Labor, 1929 South Ninth Avenue, Birmingham, AL 35256
(Certified Mail)
Lee H. Zell, Esq., Berkowitz, Lefkovits & Patrick, 1400 City
National Bank Building, Birmingham, AL 35203 (Certified Mail)

/fb

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

August 22, 1983

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 83-32
A.C. No. 46-01436-03509
Shoemaker Mine

CONSOLIDATION COAL COMPANY,
Respondent
ORDER TO SOLICITOR TO SUBMIT INFORMATION
The Solicitor has filed a motion to withdraw his
Petition for the Assessment of Civil Penalty in this case.
The subject citation was issued on May 7, 1982, for a
violation of 30 C.F.R. § 75.200 because center bolting was
not completed within 24 hours as required by the approved
roof control plan. According to the Solicitor the inspector
determined that center bolts had not been installed at the
cited location for a period of 34 hours.
However, the Solicitor further states that "The condition had been abated even before issuance of the citation."
The Solicitor then states that the operator has paid
the penalty assessment of $20.
If as the Solicitor states, the condition was corrected
before the citation was issued then no violation existed at
the critical time.
Republic Steel Corp., 5 FMSHRC 1158
(June 1983) . Under such circumstances the citation should
not have been issued and no penalty should have been assessed.
It is inconsistent for the Solicitor to seek to withdraw his
penalty petition and at the same time allow the operator to
pay a $20 penalty.
Accordingly, the Solicitor should review this matter
and determine whether or not a violation actually existed at
the time the citation was issued and if it did not, then to
free the operator of liability.

148~3

In light of the foregoing, it is Ordered that the
Solicitor advise me with respect to the foregoing within 30
days of the date of this order.

f

Law Judge
Distribution:
Howard K. Aqran, Esq., Office of the Solicitor, U. S.
Department of Labor, Rm. 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104
(Certified Mail)
Robert M. Vukas, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburqh, PA 15241
(Certified Mail)

/ln

1~64

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

AUG 2 31983

Civil Penalty Proceeding

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

Docket No: WEST 82-48
A.O. No: 42-00121-03103
Docket No: WEST 82-80
A.O. No: 42-00121-03106 H

v.
Deer Creek Mine
:

EMERY MINING CORPORATION,
Respondent
and
EMERY MINING CORPORATION,
Applicant

CONTEST PROCEEDINGS
Docket No: WEST 81-400-R
Order No: 1022357; 9/9/81

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

Deer Creek Mine

DECISION ON REMAND
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Evert w. Winder, Manager, Health and Safety,
Emery Mining Corporation, Huntington, Utah,
Todd D. Peterson, Esq., Attorney for Respondent

Before:

Judge Moore

146~

On August 11, 1983, the Commission remanded the above
case to me for the purpose of assessing the appropriate civil
penalty. The Commission has decided that the violations occurred,
hence I have only the criteria to ·consider. The regulation
in question states:
i•each miner shall receive a minimum of 8 hours
of annual refresher training as prescribed in
this section."
The company and I interpreted the words "annual refresher
training" as meaning once every calendar year. The government
argues that the words mean "within 12 months", but in its
appeal brief sort of "weazel" words it in such a way that it
means every 13 months (see government exhibit 1 and page 9 of
the government's main brief). The Commission interprets the
words to mean "within 12 months of the last received training". */
The Commission's ruling necessitates the recision of
government exhibit 1, which is a MSHA policy memorandum No:
81-2ET. MSHA is accordingly ordered to rescind that policy
memorandum.
I can not find that the respondent was negligent when
I agree with respondent's interpretation of the regulation.
The fact that the Commission disagreed does not mean that
respondent was negligent.
I therefore find no negligence.
There was no gravity proved and I therefore find none.
Also, the fact that MSHA approved respondent's refresher
training plan, militates against substantial penalties. A
total penalty of $100 is assessed for all violations involved.
Emery Mining Company is accordingly ORDERED to pay tc MSHA
within 30 days, a civil penalty in the total sum of $100.

Charles C. Moore, Jr.,
Administrative Law Judge

The Commission's ruling will result in the continual
advance of the retraining date.
If a miner is trained on
June 5 of one year then June 5 of the following year is
not within the last 12 months. A miner must be retrained
before June 5.

ife··
l •:tob

Distribution:
Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut
Avenue, NW., Washington, D.C. 20036 (Certified Mail)
Linda Leisure, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203
(Certified Mail)
Mary Lu Jordan, Esq., UMWA, 900 15th Street, NW., Washington,
D.C. 20005 (Certified Mail)

/db

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

August 29, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-37-M
A.C. No. 45-00727-05501

v.
East $alah Pit & Plant
YAKIMA CEMENT PRODUCTS
COMPANY, INC. ,
Respondent
FURTHER ORDER TO SUBMIT INFORMATION
In response to my order of July 15, 1983, the Solicitor
now has submitted a response. The response sets forth the
size of the operator's business, history of prior violations,
good faith compliance and ability to continue in business.
However, with respect to negligence and gravity the
Solicitor merely refers me to Items 20 and 21 on each
citation. In my prior order f stated that I could not
approve settlements based upon checking boxes when no
reasons are given. I adhere to this view. Other Regional
Solicitors in response to orders just like the one issued in
this case have submitted the necessary information in order
for their proposed settlements to be approved.
I do not see
why I should accept anything less from this Regional Solicitor.
I particularly note settlement motions recently received from
the Regional Solicitor, Philadelphia and the Regional Solicitor,
Nashville.
It is hereby Ordered that within 45 days of the date of
this order the Solicitor file information adequate for me to
determine the statutory criteria of negligence and gravity
sufficient to make a determination as to proper penalty
amounts.

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

1463

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

UNITED MINE WORKERS OF AMERICA
CUMWA) on behalf of
DONALD E. COLCHAGIE,
Complainant

v.
CONSOLIDATION COAL COMPANY,
Respondent

..

.

.
.
..
.

22041

AUG 3 Dum

DISCRIMINATION PROCEEDING
Docket No. PENN 82-323-D
PITT CD 82-13
Renton Mine

DECISION
Appearances:

Joyce A. Hanula, United Mine Workers of America,
Washington, D. C. for Complainant;
Robert M. Vukas, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Melick

This case is before me upon the complaint of the United Mine
Workers of America (Union) on behalf of Donald E. Colchagie,
under section 105Cc)(3) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801, et seg., the "Act," alleging that the
Consolidation Coal Company (Consol) discriminated against Mr.
Colchagie in violation of section 105(c)(l) of the Actl by:
(1) failing to pay him in accordance with Section 103(f) of the

!section 105(c)(l) of the Act provides in part as follows:
No person shall *** in any manner discriminate
against or *** cause discrimination against or otherwise interfere with the exercise of the statutory
rights of any miner, [or] representative of miners ***
in any coal *** mine subject to this Act *** because of
the exercise by such miner [or] representative of
miners *** on behalf of himself or others of any statutory right afforded by this Act.

14G!J

2

Act2 for accompanying a Federal Mine Safety and Health Administration CMSHA) inspector on a mine inspection during the 8:00
a.m. to 4:00 p.m. shift on Monday, April 5, 1982, and (2) issuing
him an unexcused absence for missing his regular 12:00 midnight
to 8:00 a.m. shift on April 6, 1982. Evidentiary hearings were
held on the complaint in Washington, Pennsylvania.
During relevant times, Donald Colchagie was an elected member of the Union safety committee at the Renton Mine.
On Friday,
April 2, 1982, in accordance with the provisions of Section
103Cf>, Mr. Colchagie accompanied MSHA inspector Richard Zilka as
the representative of miners on a mine inspection. On April 5,
1982, after completing his regular 12:00 midnight to 8:00 a.m.
work shift, Mr. Colchagie met Inspector Zilka for a continuation
of the inspection.3. Colchagie left the mine between 4:30
and 5:30 p.m. that day. He then lived only ten to fifteen minutes driving time from the mine. He did not report for his regular 12:00 midnight to 8:00 a.m. shift on Tuesday, April 6, 1982,
and was given an unexcused absence. Although Colchagie was paid
for his regular workshift on April 5, 1982, (12:00 midnight to
8:00 a.m.), he was not given any additional "walkaround" pay for
accompanying Inspector Zilka on the inspection performed during
the 8:00 a.m. to 4:00 p.m. shift on April 5.
The Union first alleges that Mr. Colchagie was discriminated
against because he was not given "walkaround" pay for the 8:00
a.m. to 4:00 p.m. shift on April 5, 1982, purportedly in viola-

2section 103Cf) of the Act provides in part as follows:
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 Ca>, for the purpose 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 who 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. ***·
3It is not a-lleged that it was necessary for Mr. Colchagie to be
present at this inspection on the grounds that it was a continuation of the earlier inspection.

11 t'O

3

tion of that part of section 103(f) which requires that the representative of miners who is also an employee "shall suffer no loss
of pay during the period of his participation in the inspection".
However, since Mr. Colchagie had already worked on the 12:00 to
8:00 a.m. shift on April 5, 1982, was paid for that work, and was
not scheduled to work on the 8:00 a.m. to 4:00 p.m. shift, I find
that indeed he did not suffer any loss of pay during the period
of his participation in that inspection on the 8:00 a.m. to 4:00
p.m. shift. See UMWA, ex rel. Norman Beaver v. North American
Coal Corporation, 3 FMSHRC 1428 (1981). Since there was accordingly no adverse action taken against Colchagie in this regard,
there was no unlawful discrimination against him under section
lOSCc)(l). Secretary, ex rel. David Fasula v. Consolidation Coal
Co., 2 FMSHRC 2786 (1980), rev'd on other grounds sub nom Consolidation Coal Co. v. Secretary, 663 F. 2d 1211 C3d Cir. 1981).
The Union would attempt to distinguish the Beaver case on
the grounds that Mr. Colchagie, unlike Mr. Beaver, was purportedly the only qualified miner available to accompany Inspector Zilka on the April 5 inspection. The evidence does not, however,
support the distinction. According to the undisputed testimony
of Inspector Zilka, the sole purpose of his visit at that time
was to continue interviewing motormen in regard to the "drags",
i.e., an emergency braking mechanism on the coal cars.
In fact,
it is clear that Zilka had already interviewed most of the
motormen before Colchagie appeared and, according to Zilka, there
was no need for Colchagie to have been present for those
interviews.
It is undisputed, moreover, that another safety committeeman, Phil Mastowski, or any other miner working the 8 a.m. to 4
p.m. shift on April 5 could have accompanied Inspector Zilka and
could have received "walkaround" pay for that service. Mastowski
admitted that he could have accompanied Zilka at that time and
was aware of the problem with the "drags" from discussions at a
safety committee meeting. The fact that Mastowski may not have
physically examined the "drags" up to that point in time would
not, of course, have necessarily made him unqualified, or even
less qualified, to have accompanied the inspector. Under these
circumstances, it is apparent that Colchagie was not the only
miner or representative of miners capable of accompanying the
MSHA inspector during his interviews and that Colchagie was not
uniquely qualified to perform this function.
The Union also argues, however, that there was unlawful
discrimination against Colchagie because he was denied an excused
absence for failing to work his regular 12 midnight to 8 a.m.
shift on the following day, April 6. He claims that he was
charged with an unexcused absence because of his participation in
the walkaround on the 8 a.m. to 4 p.m. shift on April 5. Since

1471

4

there is no dispute that Mr. Colchagie's participation in the
walkaround was a protected activity, the issue is whether the
operator was motivated in any part by this protected activity in
giving Colchagie an unexcused absence for his failure to work on
April 6. Pasula, supra.
In particular, Colchagie claims that since he had worked his
regular 12:00 midnight to 8:00 a.m. shift on April 5, and had
"double shifted" that day by accompanying Inspector Zilka during
his interviews on the 8:00 a.m. to 4:00 p.m. shift, he was too
tired to report for his regular 12:00 midnight to 8:00 a.m. shift
on April 6.
I note, however, that according to Colchagie himself, he left the mine between 4:30 and 5:30 p.m. on April 5 and
lived only ten to fifteen minutes travel time from the mine.
In
spite of his alleged fatigued condition, however, he did not retire to bed until sometime after 10:30 or 11:00 that night.
Since Colchagie did not use the more than six hours between
shifts to rest, I do not find his alleged inability to work his
regular 12 midnight to 8 a.m. shift on April 6th to be reasonably
related to his "walkaround" with Inspector Zilka on the afternoon
of April 5th.
In addition, Mr. Colchagie has failed to cite any case in
which any other employee who had similarly double shifted had
received an excused absence from reporting to his regular work
shift after a similar break between shifts on the basis of his
previous double shifting alone.
Indeed, according to the undisputed testimony of Mine Superintendent Hathaway, it was not uncommon for miners to work their regular shift after having "double
shifted" eight hours before that regular workshift. Moreover, it
is undisputed that no one had ever been granted an excused absence under those circumstances.
The issuance of an unexcused absence on the facts of this
case was also consistent with of Consol's Attendance Control Program (Operator's Ex. 1). Item (a)(7) of the program provides as
follows:
Management may excuse days off for good cause
provided: (a) the employee has made a reasonable effort
to notify management in advance of the absence; and Cb>
written verification is furnished, addressing the reason for the absence. Management will make a determination of good cause on an individual case by case basis.
According to Superintendent Hathaway and the records clerk,
there was no evidence in the company records that Mr. Colchagie
had notified management to request an excused absence prior to
his shift on April 6, 1982. While this testimony does not in

5

itself prove that Colchagie did not call in and credible evidence
exists that Colchagie did in fact call in to notify management of
his anticipated absence, there was admittedly no written verification addressing the reasons for the absence. Hathaway testified,
moreover, that even had Colchagie given proper notice, he would
not have been granted an excused absence, since the basis for his
absence, i.e., doubleshifting under these circumstances, had
never been accepted as "good cause". As previously noted, an
excused absence had never previously been granted for any other
person under similar circumstances.
Under all the circumstances, I cannot find that in denying
Mr. Colchagie an excused absence for his regular workshift on
April 6, 1982, Consol treated him in ny discriminatory manner.
Thus, the Complainant has not succeed d in establishing a prima
facie case of unlawful discrimination under the Act. Accordingly, the complaint is denied and this ase is d smissed.

Distribution Cby certified
Joyce A. Hanula, Legal Assis a t, Unite Mine Workers of America,
United Mine Workers Building, 900 Fifteenth Street, N.W., Washington, DC 20005
Robert M. Vukas, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241

1473

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

SECRETARY OF LABOR,
MINE S.AFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

AUS 30 •

CIVIL PENALTY PROCEEDING
Docket No. WEVA 82-387
A. C. No. 46-01816-03501

v.

Gary No. 50 Mine

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

David E. Street, Esq., Office of the Solicitor,
U. s. Department of Labor, Philadelphia, Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Steffey

A hearing in the above-entitled proceeding was held in
Beckley, West Virginia, on May 10, 1983, under section 105(d),
30 U.S.C. § 815(d), of the Federal Mine Safety and Health Act
of 1977. Simultaneous initial posthearing briefs were filed
on July 13, 1983, by counsel for both petitioner and respondent.
Counsel for petitioner filed on July 25, 1983, a reply to
respondent's brief.
Issues
The petition for assessment of civil penalty filed on
October 27, 1982, by the Secretary of Labor in Docket No. WEVA
82-387 seeks to have civil penalties assessed for one alleged
violation of 30 C.F.R. § 75.1106-2(c) and two alleged violations of 30 C.F.R. § 75.1003. Counsel for the Secretary stated
at the hearing that one of the citations (No. 1066939) alleging
a violation of section 75.1003 had been vacated and moved that
the petition for assessment of civil penalty be withdrawn with
respect to that alleged violation.
I granted the motion at the
hearing (Tr. 5) and indicated that my decision would reflect
the Secretary's withdrawal of the petition to that extent.
Counsel for U. s. Steel Mining Co., Inc. (USS) indicates
in her brief (p. 2) and stated at the hearing (Tr. 6) that she
is not contesting the question of whether violations of sections 75.1106-2(c) and 75.1003 occurred, but only that the

circumstances cited by the inspector did not constitute "significant and substantial" violations as that term has been
defined by the Commission in Cement Division, National Gypsum
Co., 3 FMSHRC 822 (1981).
The second issue raised by the petition for assessment of
civil penalty is the amount of the civil penalty which should
be assessed for each violation.
Counsel for USS contends in
her brief (p. 6) and argued at the hearing (Tr. 6-7) that a
judge is required to assess the civil penalty of $20 provided
for in 30 C.F.R. § 100.4 if the judge finds that an alleged
violation is not significant and substantial.
Findings of Fact and Decision as to Citation No. 1066938 dated
May 6, 1982
Findings
The parties entered into four stipulations which apply to
consideration of both violations.
Those are as follows:
(1)
The administrative law judge has jurisdiction to hold a hearing
and decide the issues.
(2)
USS and the Gary No. 50 Mine are
covered by the Act.
(3)
USS is a large operator and the No.
50 Mine is a large mine.
(4)
During the 24 months preceding
the occurrence of the violations here involved, USS was cited
for 288 alleged violations and there were 1,086 inspection days.
The preponderance of the evidence supports the following
findings of fact:
1. Earl Barnett, a duly authorized representative of the
Secretary for the past 14 years and with 34 years of mining
experience before becoming an inspector, works out of MSHA's
Princeton, West Virginia, subdistrict office (Tr. 9-10).
2. Barnett was requested by his supervisor to make a
haulage survey after occurrence of a fatal accident involving
a collision of vehicles in the Gary No. 50 Mine (Tr. 29; 98).
3. Barnett arrived at the No. 50 Mine on May 6, 1982,
about 7 a.m. and checked some personnel haulage equipment just
before the mantrips were due to enter the mine at about 8 a.m.
(Tr. 23; 120). Barnett observed on the floor of one of the
buses used to transport people into the mine a cylinder of
oxygen and a cylinder of acetylene (Tr. 23; 110; 124). Barnett
advised Russell Burge, USS's senior mine inspector, that the
cylinders would have to be removed from the bus or mantrip and
Burge instructed some men to remove them from the mantrip.
The cylinders weigh about 50 or 60 pounds and are about 4-1/2
to 5 feet in length {Tr. 23; 78; 90; 123).

147~

4.
!~specter Barnett wrote Citation No. 1066938 alleging
a violation of section 75.1106-2(c) because that regulation
provides that "[l]iquefied and nonliquefied compressed gas cylinders shall not be transported on mantrips."
5. The bus or mantrip in which the cylinders were found
was about 18 feet long and consisted of three compartments (Tr.
35; 149). The two end compartments were covered, while the
center portion was open (Tr. 46; 69; 123). From 3 to 4 persons
could ride in either end of the bus, but up to 8 miners could
ride in the uncovered or center portion of the bus (Tr. 95).
6. Both Barnett and Floyd Cox, a UMWA safety committeeman
who accompanied Barnett on his inspection and who has worked as
a welder for USS for about 6-1/2 years, understood that when
the two cylinders were taken from the bus or mantrip, they were
taken to USS's shop (Tr. 23; 75; 91-92; 115). As a matter of
fact, however, when the cylinders were removed from the bus,
they were placed in another vehicle exactly like the bus from
which they were removed except that the vehicle in which they
were placed had no cover over any part of it because the top
had been removed to facilitate use of the other vehicle by shop
personnel (Tr. 123). Since the vehicle in which the two cylinders were placed after removal from the bus had no top to·
interfere with placement of long objects in the vehicle, the
two cylinders were placed in a semi-upright position and were
steadied on the way into the mine by the mechanics who rode in
the same compartment with the cylinders (Tr. 123; 127).
7. Burge said that the cylinders were transported into
the mine in the second vehicle along with personnel because he
had been advised by an MSHA supervisory inspector from MSHA's
Pineville Office that oxygen and acetylene cylinders could be
transported in a jeep or other vehicle, so long as the cylinders
are in a separate compartment, and provided the persons who ride
in the vehicle with the cylinders are among the group of persons
who are going to be using the cylinders (Tr. 122). It was
Burge's opinion that Barnett's requiring him to remove the cylinders from the bus or mantrip resulted in USS's taking the
cylinders into the mine in a less safe manner than they would
have been transported if the cylinders had been taken into the
mine in the mantrip where the cylinders were first placed (Tr.
126-127).
8. Barnett, who was from MSHA's Princeton Office, said
that he was unaware of the policy expressed by the supervisor
from the Pineville Off ice and that if he had seen USS taking
the cylinders into the mine in the manner described by Burge,
he would have cited USS for another violation (Tr. 63-64). As
a matter of fact, USS violated the policy which had been expressed by the Pineville supervisor because that policy was

that the cylinders had to be transported in a separate compartment (Tr. 122), but Burge stated that the two cylinders had
been taken into the mine with the cylinders standing in a semiupright position and that mechanics were riding in the same
compartment with the cylinders and steadying them as they went
into the mine (Tr. 127).
9. Barnett said that carrying unsecured cylinders-loose
on the floor of a mantrip exposed the miners to a possible mine
fire or an explosion. A fire could occur if the cover on the
valve on an oxygen cylinder should be shaken loose and fall off
so as to expose the valve which might be knocked off in a collision or derailment so as to allow the highly compressed oxygen
to be released suddenly, thereby transforming the cylinder into
a projectile which could fly through the air and injure or kill
a miner riding in the bus (Tr. 25; 70-71; 76). Although the
valve on an acetylene cylinder is located in a depression in
the cylinder so as to require no cover, Barnett said that the
valve could become loose from vibration and allow highly explosive acetylene to escape into the atmosphere where it could be
ignited by sparks from the trolley wire (Tr. 24; 73).
10. Cox supported Barnett's belief that transporting _oxygen
and acetylene cylinders was hazardous, but he believed that a
collision in the mine or a derailment could cause the cylinders
to move about with sufficient force to kill or injure anyone
riding in the bus with the cylinders (Tr. 97; 112). Cox referred to the fatal accident which occurred on April 5, 1982,
and said that cylinders like the ones involved in this case
were found along the rib after that accident. While he did not
think that the valves on the cylinders involved in the accident
had become loose enough to allow acetylene or oxygen to escape
into the air, he still believed that hauling the cylinders in
the bus with people going in to work was hazardous (Tr. 98-100).
11.
Cox, who is a welder, said that they had tried to
accommodate with USS's policy that they haul the cylinders in
the vehicle in which they enter the mine when they comprise the
crew which is going to be using the cylinders, but he did not
think that was a safe practice because the cylinders are not
properly secured when so transported and can injure anyone riding in the vehicle with the cylinders in case of derailment or
collision (Tr. 96-97; 110).
12. Burge expressed the opinion that transporting the cylinders in a covered mantrip was not reasonably likely to result
in a reasonably serious injury. He believed that if the miners
had transported the cylinders into the mine in the covered bus
or mantrip, there would have been no likelihood of the cylinders
causing an injury because the cover or top on the mantrip would
have protected the cylinders from coming into contact with any
possible falling of electrical wires and from the possibility

14'11

of the roof or rib falling upon the cylinders so as to cause
them to rupture (Tr. 127; 145).
13 • . The cylinders which Inspector Barnett had USS remove
from the mantrip had beeri placed in covers made of plastic
reinforced with nylon strands (Tr. 124-125). The bags were
very thin and Barnett expressed the opinion that the bags were
not substantial enough to comply with the regulations [§75.
1106-2(b}] requiring that such cylinders be transported in well
insulated containers and the inspector said that he would have
issued a citation for another violation as to the kind of
covers being used if he had not required the cylinders to be
removed from the bus before the cylinders could be transported
into the mine in the mantrip (Tr. 73-74). The bags were used
primarily by USS as carrying devices and neither Barnett, Cox,
nor Burge believed that the bags provided the tanks with any
significant impedance from rolling, or would have reduced the
extent of injury to anyone who might have been hit by a cylinder thrown about in a collision or derailment (Tr. 70; 76; 94;
99; 124-125).
Consideration of Parties' Arguments
USS's counsel stated at the hearing (Tr. 6) that she was
not contesting the question of whether violations had occurred,
but only whether the violations were "significant and substantial" as that term has been defined by the Commission in
National Gypsum, supra. Citation No. 1066938, here under consideration, alleges that a violation of section 75.1106-2(c)
occurred because oxygen and acetylene cylinders were being
transported in a mantrip (Finding No. 4, supra). USS's brief
(p. 2) claims that the self-propelled personnel carrier [§75.
1403-6], in which the cylinders had first been placed, is not
actually a "mantrip" as that term has been defined by MSHA's
Pineville Off ice which has advised USS that a mantrip is one
or more cars pulled by a locomotive. The Pineville Office has
further advised USS that it may haul oxygen and acetylene cylinders in its buses so long as they are placed in a separate
compartment and are accompanied by the personnel who are going
to use the cylinders in the mine (Finding No. 7, supra).
USS's brief (p. 2) relies on the Pineville Office's oral
interpretation of section 75.1106-2(c) to argue that it could
have transported the cylinders in this instance in the bus in
which they had been placed if the only persons who had been
going to accompany the cylinders had been the personnel who
were going to use them (Br. 2). While USS argues that the
personnel who would have gone underground in the bus with the
cylinders had not yet entered the bus, it is a fact that USS's
witness Burge testified (Tr. 122) that he made a specific inquiry to find out who was going to ride in the bus and he said
that the people standing around while the inspector examined

1478

the bus consisted of "* * * a roof bolter, or mason, or both,
and there were mechanics there." Later Burge stated that the
cylinders were removed from the first bus and placed in another
bus exactly like the one from which the cylinders were removed,
except that the second bus had no tops over the end compartments, and that the cylinders were taken into the mine in the
second bus by "[t] he same people that had them in the f·irst bus"
(Tr. 123). Subsequently, Burge testified that he had specifically inquired of MSHA's Pineville Office whether a mason could
be among the personnel who ride with cylinders andhe was advised that the mason would not be one of the persons who would
be using the cylinders and that the mason, therefore, could not
go into the mine in the same vehicle in which the cylinders
were to be transported (Tr. 128).
The only conclusion which can be reached from the abovedescribed contradictory testimony is that either the mason did
not go into the mine with the personnel who rode with the cylinders in the second bus, or Burge did not know the occupations
of the persons who intended to go into the mine in the first
bus. There would have been no reason for Burge to make a specific inquiry as to the occupations of the personnel who were
standing around the first bus other than to persuade the inspector that USS would not be violating section 75.1106-2(c) by
hauling the cylinders in the first bus because the persons who
would be riding in the bus with the cylinders would be the personnel who were going to be using the cylinders. When Burge
found that one of them was a mason or a roof bolter, or both,
he knew that if that person intended to ride into the mine with
the cylinders, USS would be in violation of the Pineville
Office's interpretation of section 75.1106-2(c). Therefore,
Burge had the cylinders moved to the second bus and the "same
personnel" who rode with the cylinders in the second bus necessarily had to exclude the miner whose occupation was roof bolter
or mason, or both.
As noted in Finding No. 8, supra, the inspector who wrote
the Gitation was from MSHA's Princeton Office and had not heard
of the Pineville Office's interpretation of section 75.1106-2(c)
and stated that if he had known that USS took the cylinders out
of one bus and placed them in a second bus, also lacking proper
restraining devices, he would have cited USS for another violation [§75.1106-2(a) (1)).
It should also be noted that USS violated the policy expressed by the Pineville Off ice in any event
because Burge stated that the cylinders had been placed in the
second bus in a semi-upright position and that mechanics rode
in the same compartment with the cylinders so as to steady them
on the way into the mine. Under the Pineville Office's interpretation, the cylinders were required to be placed in a separate compartment from the personnel who were riding with the
cylinders (Finding No. 8, supra).

147t•

Burge is correct in arguing that the way the cylinders were
actually taken into the mine was more haz.ardous than the way
they would have been taken into the mine if the inspector had
not required the cylinders to be removed from the first bus. At
least, if they had been taken into the mine in the first bus,
the cylinders would have be~n transported in a compartment with
a top over it. While Burge implies that no one would have ridden
in the same compartment with the cylinders if Barnett had not
required the cylinders to be removed, there is no certainty that
miners would not have ridden in the first bus in the same compartment with the cylinders because Barnett said that only three
miners were in the bus at the time he examined it and that other
miners standing around the bus had not yet been loaded into the
bus to make the trip underground (Tr. 24; 68; 72).
There is another flaw about USS's claim that it could lawfully transport the cylinders in the mine under the Pineville
Office's oral interpretation of section 75.1106-2(c). That flaw
comes from the fact that there is nothing to prevent MSHA from
holding that USS's bus is a self-propelled personnel carrier if
it is not a mantrip under the Pineville Office's definition of a
mantrip being mine cars pulled by a locomotive. As to selfpropelled equipment, section 75.1106-2(a) provides as follows:
(a) Liquefied and nonliquefied compressed gas
cylinders transported into or through an underground
coal mine shall be:
(1) Placed securely in devices designed to hold
the cylinder in place during transit on self-propelled
equipment or belt conveyors;
Barnett could just as easily have cited USS for a violation of
section 75.1106-2(a) (1) as he did for a violation of section
75.1106-2(c) because the latter section requires that the cylinders not be transported at all on mantrips, whereas USS can only
transport such cylinders on its self-propelled personnel carrier
if they are "* * * [p]laced securely in devices designed to hold
the cylinder in place during transit". Obviously, propping the
cylinders in a semi-upright position, steadied by mechanics, is
not in compliance with section 75.1106-2(a) (1).
USS's brief (p. 2) asserts that the cylinders "* * * present no hazard if properly secured in correct containers (73)",
but USS cites Barnett's testimony in support of that assertion
and in that testimony, transcript pages 73 and 74, Barnett
states that USS failed to secure the cylinders and that the
plastic bags in which USS placed the cylinders were not in compliance with the regulations (Finding No. 13, supra).
USS's brief (p. 5) states that "[i]n order for oxygen and
acetylene cylinders to become a hazard during transportation
into the mine, they have to receive a blow significant enough

1~80

to break the gauges on the ends (24, 25)". While it is true
that Barnett emphasized the worst possible hazards which can be
expected to occur from transporting unsecured cylinders into
the mine, such as a valve being knocked off an oxygen cylinder
or gas leaking from an acetylene cylinder so as to be ignited
by a spark from a trolley wire (Finding No. 9, supra), Cox
testified that the unsecured cylinders could inJure a person
just by being thrown against him in a collision or derailment
(Finding No. 10, supra). Although Cox agreed that the cylinders
which were thrown along the rib after a head-on collision occurring on April 5, 1982, did not explode or leak, the fact remains that they left the vehicle in which they had been placed
and a 50- or 60-pound cylinder flying through the air in a collision could certainly injure or kill a person who may happen
to be in the cylinder's trajectory.
One must keep in mind that the cylinders in this case were
first merely laid on the floor of a bus. Then they were removed
from that bus and placed in another bus in a semi-upright position.
They were actually transported into the mine with mechanics riding in the same uncovered compartment in which the
cylinders had been placed. The seats in the buses used by USS
are not vertical like those in an automobile, but are built in
a reclining position so that the floor of the bus is not a.flat
place like that in an automobile (Tr. 111-112). In a collision
or derailment, there is no seat to protect the person riding
with the cylinders from the movement of the heavy cylinders.
When miners are riding beside the cylinders, they are exposed
to almost certain injury of some kind in case of an accident
or even a sudden stopping.or starting of the bus.
USS's brief (p. 5) also argues that Barnett could not explain why cylinders hauled into a mine are going to leak as
compared with identical cylinders which are hauled daily at
construction sites without rupturing. Contrary to USS's claim,
Barnett was not bereft of an explanation for the alleged difference in hazards between haulage of cylinders into a mine and
haulage of cylinders at a construction site because he stated
that cylinders transported at construction sites are "properly
secured" (Tr. 70). MSHA's reply brief (p. 2) cites 29 C.F.R.
§ 1926.350(a) in support of the inspector's claim that cylinders
used at construction sites have to be "properly secured". ·That
section provides for cylinders transported in powered vehicles
at construction sites to be secured in a vertical position. Of
course, as previously noted, section 75.1106-2(a) (1) requires
USS to place the cylinders "* * * in devices designed to hold
the cylinder in place during transit on self-propelled equipment". Therefore, OSHA's and MSHA's requirements for haulage
of cylinders are consistent.
The final defense in USS's brief as to its method of transporting cylinders is as follows (p. 6):

1481

The unrebutted testimony -in this case is that the
MSHA district has advised the mine that they.can transport these cylinders into the mine if the only people
on the vehicle are people who will use the tanks underground (122). If MSHA honestly believes transportation
of cylinders on the track mounted vehicles is reasonably likely to result in a reasonably serious injury,
it is incomprehensible that it is acceptable if mechanics are injured but not continuous miner operators.
Practical experience has shown that a collision of
track mounted vehicles is not sufficient to injure the
valves on cylinders (98), so there is no reason to believe that the vibration of a portal bus on the track
will damage the valves.
I have already pointed out the fallacies inherent in the
above allegations, but I shall briefly summarize them at this
point. First,.the Pineville Office's instructions as to how
USS could transport the cylinders was not followed in this
case because that Off ice advised USS that the cylinders could
be transported in a vehicle if they were placed in a separate
compartment from the mechanics or welders who were going to be
using the cylinders, whereas Burge stated that mechanics sat
in the compartment beside the cylinders and steadied them on
the way into the mine (Finding No. 8, supra).
Second, USS knows that it is using a self-propelled vehicle
and both the Pineville Office and USS know, or should know,
that section 75.1106-2(a) (1) specifically provides that the
cylinders shall be "[p)laced securely in devices designed to
hold the cylinder in place during transit on self-propelled
equipment".
Third, Cox, one of USS's own welders who has been
persuaded to haul the cylinders in accordance with the Pineville Office's instructions, testified at the hearing that he
believed that taking the cylinders into the mine in accordance
with the Pineville instructions is hazardous simply because the
cylinders may be thrown against a person in case of a collision
or derailment. Cox certainly did not believe the valves had to
be knocked off the cylinders before they became a hazard (Finding No. 10, supra).
USS also expresses its inability to comprehend why the
Pineville Office would give it instructions as to transporting
cylinders which expose mechanics to serious injury if the inspectors from the Princeton Off ice believe that transporting
cylinders in a mantrip would expose a continuous-mining machine
operator to serious injury. Although it is obviously hazardous
to transport the unsecured cylinders in any vehicle, the Pineville Office's proviso as to the occupational speciality of the
personnel who can accompany the cylinders relates to the fact
that welders and mechanics who are actually trained in the use
of the cylinders will be less likely to be injured in handling

,.
1 .ibr1

n

<}

and transporting them than continuous-mining machine operators
who normally do not receive training in the handling and use of
oxygen and acetylene cylinders.
Insofar as USS appears to defend its placement of the cylinders on the floor of the bus on the Pineville Office's interpretation of section 75.1106-2(c), the Commission has held in
Old Ben Coal Co., 2 FMSHRC 2806 (1980)', and in King Knob Coal Co.,
Inc., 3 FMSHRC 1417 (1981), that an inspector is not bound by
the provisions of MSHA's inspection manual because the manual
is not officially promulgated and does not prescribe rules which
are binding on an agency.
In the King Knob case, however, the
Commission said that there was some merit to King Knob's claim
that it had relied upon the provisions set forth in the manual.
Inasmuch as the manual fails to state that it is.not a source
of law binding upon MSHA or the Commission, the Commission said
that MSHA's confusion in application of the law in that instance
might be taken into consideration in evaluating the criterion of
negligence in determining a civil penalty under section llO(i)
of the Act.
In this instance, of course, the Pineville Office's interpretation was given orally by a supervisor in that office. At
the hearing I granted the request of MSHA's counsel that the
record be subject for 72 hours to receipt of additional testimony if an inquiry he was going to make should show an error in
USS's representation of the Pineville Office's interpretation
of section 75.1106-2(c) (Tr. 185). Since no request was ever
made for receipt of further testimony, I assume that USS made a
correct statement as to the interpretation given by the Pineville Office. As pointed out above, since the Commission has
held that provisions in MSHA's manual do not have the force of
binding law, it follows that oral instructions from a single
MSHA office do not have sufficient authority to overcome the
clear meaning of the regulations themselves.
For the reasons given above, I find that USS did violate
section 75.1106-2(c) when it placed the unsecured cylinders in
the mantrip or bus for the purpose of transporting them into
the mine.
The following definition of a "significant and substantial"
violation was given by the Commission in its National Gypsum
decision (at page 825):

* * * we hold that a violation is of such a nature
as could significantly and substantially contribute
to the cause and effect of a mine safety or health
hazard if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in
an injury or illness of a reasonably serious nature.

1483

As Finding Nos. 9 and 10, supra, indicate, there was a
reasonable likelihood that the cylinders could be tossed about
in a collision or derailment and cause a serious injury even
if the valves did not get knocked off or become loose so as to
expose the miners to being hit by a jet-propelled oxygen cylinder or to being injured by an explosion of leaking acetylene.
Barnett said that the jeep in which he was riding was derailed
on the day he wrote the citations involved in this proceeding
{Tr. 72). The No. 50 Mine has 46 miles of track in it {Tr. 71).
It is reasonable to expect that collisions and derailments will
occur on a transportation system as extensive as the one here
under consideration. Cox testified that '.'[a]ny time I go into
the portal of that mines I'm aware of the fact that there could
be a bad accident in the jeep that I'm irt" {Tr. 98). The preponderance of the evidence clearly supports a finding that it
was reasonably likely that hauling unsecured cylinders in the
mantrip or bus could contribute to the cause and effect of a
mine safety hazard which could result in an injury of a reasonably serious nature. Therefore, the inspector who wrote Citation No. 1066938 properly considered the violation of section
75.1106-2(c) to be a "significant and substantial" violation.
Assessment of Penalty
Having found above that a violation of section 75.1106-2
{c) occurred, it is necessary that a civil penalty be assessed
under the six criteria listed in section llO(i) of the Act.
As to the criterion of the size of the operator's business,
the parties have stipulated that USS is a large operator and
that the No. 50 Mine is a large mine (Tr. 4). Therefore, any
penalty assessed should be in an upper range of magnitude to
the extent it is determined under the criterion of the size of
the operator's business.
As to the criterion of whether the payment of penalties
will have an adverse effect on USS's ability to continue in
business, the parties made no stipulation and USS presented no
financial evidence.
In Sellersburg Stone Co., 5 FMSHRC 287,
294 (1983), the Commission indicated agreement with the holdings of the former Board of Mine Operations Appeals in Buffalo
Mining Co., 2 IBMA 226 (1973), and Associated Drilling, Inc.,
3 IBMA 164 (1974), to the effect that if an operator fails to
produce any financial evidence, a judge may presume that payment of penalties will not cause the operator to discontinue
in business.
In the absence of any facts to support a contrary conclusion, I find that payment of the penalties assessed
in this proceeding will not cause USS to discontinue in business.
The parties stipulated that during the 24-month period
preceding the citing of the violations involved in this pro~
ceeding, USS had been assessed for 288 alleged violations in
a total of 1,086 inspection days. Those figures support a
finding that USS has a favorable or moderate history of previous

1484

violations.
Therefore, only a very small part of the penalty
should be attributed to the criterion of respondent's history
of previous violations.
Barnett testified that USS demonstrated a good faith
effort to achieve rapid compliance after he cited the violation by abating the violation within the time given in his
citation (Tr. 20; Exh. 3).
It has always been my practice to
lower any penalty which I would otherwise assess under the
other five criteria if I find that an operator has made an unusual effort to achieve rapid compliance.
If the operator
abates the violation within the time allowed by the inspector,
I neither reduce nor raise the penalty under the criterion of
good-faith abatement. Of course, if an operator refuses to
abate a violation and has an insufficient reason for failing
to abate within the time given, the penalty otherwise assessable under the other five criteria is raised accordingly.
In
this instance, the inspector wrote the citation at 8:05 a.m.
and gave USS until 8:15 a.m., or 10 minutes, within which to
abate the violation (Exh. 3).
Inasmuch as USS only had to remove the cylinders from the bus or mantrip in order to abate
the violation, I find that the inspector provided a sufficient
time for abatement and that the penalty should neither be
raised nor lowered under the criterion of good-faith abatement.
The fifth criterion to be considered is the degree of
negligence which should be assigned to the occurrence of the
-violation. As I indicated above, the Commission held in the
King Knob case that if MSHA's enforcement of a given standard
has caused confusion so that the operator violated the standard
in the belief that its method of· operation was in compliance
with MSHA's interpretation of the standard, the inconsistent
application of the standard should be taken into consideration
in evaluating the criterion of negligence. As has been shown
in the preceding portion of this decision, the Pineville Office
had interpreted section 75.1106-2(c) in a fashion which caused
USS to believe that the cylinders could be transported in a
self-propelled personnel carrier so long as the cylinders were
placed in a separate compartment and provided the miners in
the vehicle carrying the cylinders were a part of the crew of
workers who would be using the cylinders.
As I have also indicated above, both the Pineville Office
and USS should have been aware of the provisions of section
75.1106-2(a) (1) to the effect that cylinders can be transported
in self-propelled vehicles only if "[p]laced securely in devices designed to hold the cylinder in place during transit",
but the fact remains that the Pineville Off ice did mislead USS
in giving an interpretation of section 75.1106-2(c) with which
the MSHA inspector who wrote the citation did not agree. On
the other hand, USS did not actually comply with the Pineville
Office's interpretation of section 75.1106-2(c) in that USS
failed to place the cylinders in a separate compartment (Finding Nos; 7 and 8, supra).

1485

In su·ch circumstances, I believe that the violation was
associated with at least ordinary negligence because USS did
not justify its actions in light of section 75.1106-2(a) (1)
which clearly does not allow USS to transport cylinders in
self-propelled ~ehicles without.placing them in devices des'igned to hold them in place during transit. The former Board
of Mine Operations Appeals held in Freeman Coal .Mining Co., 3
IBMA 434, 442 (1974), that an operator is conclusively presumed
to know what the mandatory health and safety standards are.
Therefore, before I can find that USS was not negligent at all
in violating section 75.1106-2(c), I would need some explanation from USS's witness as to why he did not inquire of the
Pineville Office whether transporting unsecured cylinders in a
self-propelled vehicle would be in violation of section 75.11062 (a) (1), assuming that the Pineville Office did not know the
difference between a self-propelled personnel carrier and a mantrip which the Pineville Office defined as a locomotive pulling
cars designed to transport people, as opposed to transporting
coal or supplies.
The final criterion which requires consideration is the
gravity of the violation.
In this instance, the cylinders were
removed from the bus before it traveled underground, but the
only reason the cylinders were removed before being transported
was that the inspector observed them lying loosely on the floor
of the bus and asked that they be removed.
In National Gypsum,
supra, the Commission noted that the hazard associated with the
violation should be analyzed in terms of whether the violation
could cause a danger to health or safety. As Finding Nos. 9
and 10, supra, show, transporting the unsecured cylinders in
the bus exposed the miners to serious injury or death if the
event which section 75.1106-2(c) is designed to prevent had
actually occurred.
In view of the fact that a large operator is involved,
that payment of penalties will not cause it to discontinue in
business, that the operator has a moderate history of previous
violations, that the operator showed a good-faith effort to
achieve rapid compliance, that the violation was associated
with ordinary negligence, and that the violation was serious, I
find that a penalty of $250 is appropriate.
It should be noted
that both MSHA's initial and reply brief suggested that a penalty of $170 be imposed because that was the amount proposed by
MSHA in its petition for assessment of civil penalty. Actually,
MSHA proposed a penalty of only $119 because the amount of $170
was reduced by 30 percent because USS had abated the violation
within the time fixed in Citation No. 1066938. The Commission
has held many times that penalty cases before a judge are de
novo and that the Commission and its judges are not bound by
the penalty formula, set forth in Part 100 of Title 30 of the
Code of Federal Regulations, and used by MSHA in proposing penalties (Rushton Mining Co., 1 FMSHRC 794 (1979); Shamrock Coal

148b

Co., 1 FMSHRC 799 (1979); Kaiser Steel Corp., 1 FMSHRC 984
(T979); U.S. Steel Corp., 1 FMSHRC 1306 (1979); Pittsburgh Coal
Co., 1 FMSHRC 1468 (1979); Peabody Coal Co., 1 FMSHRC 1494
TI979); Co-Op Mining Co., 2 FMSHRC 784 (1980); and Sellersburg
Stone Co., 5 FMSHRC 287 (1983)).
In its brief (p. 6), USS argues that a judge must assess
the $20 penalty provided for in 30 C.F.R. § 100.4 if he finds
that a violation has been improperly evaluated as "significant
and substantial" by an inspector.
USS acknowledges, however,
that if MSHA derives its proposed penalty under section 100.3,
as it did in this instance, and the judge agrees with MSHA's
finding of "significant and substantial", the judge is not
bound by the provisions of section 100.3.
Therefore, it is unnecessary in this proceeding for me to discuss USS's contention
that I am required to assess a penalty of only $20 if I find
that a given violation is not "significant and substantial".
Findings of Fact and Decision as to Citation No. 1066940 dated
May 6, 1982
The parties' stipulations which have been summarized at the
beginning of the findings of fact for the previous citation. are,
of course, also applicable to the issues raised by the parties
with respect to Citation No. 1066940. The witnesses who testified with respect to both alleged violations were identical,
viz., MSHA Inspector Barnett, UMWA Safety Committeeman Cox, and
USS's Senior Safety Inspector Burge. Their full names and mining experience have been given above with respect to the previous
violation and will not be repeated in this portion of my decision.
The preponderance of the evidence supports the following
findings of fact (numbering of paragraphs is continued from
previous findings, supra).
14. Inspector Barnett, while engaged in a haulage survey
in USS's No. 50 Mine on May 6, 1982, traveled to the B Panel
Section. He was accompanied by Cox and Burge. When the jeep
in which they were riding reached B Panel, the jeep was brought
to a stop behind the portal bus or mantrip which had already
delivered miners to the working section.
The mantrip was sitting about 40 feet outby the end of the track (Tr. 12; 41; 128;
175). i.\lhen Barnett got out of the jeep, he observed that the
trolley wire was unguarded except for the first 10 or 12 feet
of the wire at the end of the track (Tr. 20; 47; 128; 148).
Therefore, Barnett wrote Citation No. 1066940 alleging a violation of section 75.1003 because "[t]he trolley wire at the end
of the supply track in the B panel section where men and supplies are unloaded was not adequately guarded" (Tr. 11; Exh. 1).
15.
follows:

Section 75.10p3, in pertinent part, provides as

* * * Trolley wires and trolley feeder wires shall be
guarded adequately:
(a) At all points where men are required to
work or pass regularly under the wires;
(b)
On both sides of all doors and stoppings;
and
(c) At man-trip stations.
1.6. Since neither Barnett nor the two men traveling with
him had seen the miners on the working section get out of the
portal bus or mantrip, none of the witnesses knew for certain
where the bus had been sitting at the time the men exited the
bus (Tr. 81; 150; 158). It was assumed that the men got off
the mantrip at the end of the track because that would have been
the safest place for unloading, inasmuch as a guard for the
trolley wire had been provided for 10 to 12 feet at the end of
the track (Tr. 129). The bus or mantrip was 18 feet long (Tr.
35; 149). The bus had a covered compartment at each end, but
the central compartment in the middle of the bus was open or
topless (Tr. 46; 155). Each covered end compartment has room
for three or four persons and the middle or open compartment
will accommodate eight people (Tr. 95; 106). The open part of
the bus was exposed to the unguarded trolley wire for part of
its length and was exposed to the guarded part of the wire for
the remainder of its length (Tr. 155). The jeep in which
Barnett rode to the B Panel had no top at all and the persons
who got out of the jeep at B Panel were exposed to the unguarded,
energized trolley wire when they left the jeep (Tr. 55-56).
17. Barnett considered the violation of section 75.1003
to be a "significant and substantial" violation because he believed that it was reasonably likely that an accident would
occur which could reasonably be expected to cause an injury of
a reasonably serious nature (Tr. 18). Barnett based the aforesaid conclusion on the fact that the mantrip had been unloaded
where a portion of unguarded trolley wire existed, as discussed
above, and because he saw supplies along both sides of the
track.
In such circumstances, he concluded that the miners who
unloaded the supplies did so under the unguarded, 250-volt,
energized trolley wire (Tr. 16-17). Barnett also believed that
the miners from the working section would at some time during
each working shift come to the area with the unguarded wire for
the purpose of obtaining supplies, such as timbers, rock dust,
hydraulic oil, roof bolts, and header boards (Tr. 13-14; 36).
In Barnett's opinion, the miners would be beneath unguarded,
energized trolley wire when obtaining such supplies (Tr. 45; 54;
56; 84).
18. Burge gave several reasons for his belief that failure
to guard the trolley wire was improperly considered by Barnett
to be a "significant and substantial" violation. He said that

148d

there was a cut-off switch for turning off power to the trolley
wire without affecting the power supply used to run coal-producing
equipment (Tr. 132). Burge said that the cut-off switch was
located only 160 feet outby the end of the track and that the
miners would cut off all power to the trolley wire at any time
they found it necessary t~ obtain supplies which were located
close to the trolley wire (Tr. 133; 143-144).
19. Burge testified that he had never heard of any miner
who had been injured by contacting an unguarded trolley wire in
the No. 50 Mine (Tr. 138). He said he himself had come ~n contact with an energized trolley wire on one occasion, but the
wire hit his miner's safety hat and caused no problem. He also
stated that the wire he touched was guarded and that he felt a
person was more likely to contact a guarded wire than an unguarded wire because the guarded wires are harder to see than
the unguarded wires (Tr. 142; 150).
20. Burge additionally observed that the guards for trolley wires are open at the bottom.
In this instance, the 10 to
12 feet of guarding consisted of yellow neoprene (Tr. 140).
Burge maintained that the neoprene hangs down on each side of
the wire and will protect a person walking along beside the
track from coming into contact with the wire, but the opening
directly under the guard has to allow for passage of the trolley pole and provides no protection whatever to anyone coming
up directly under the guard (Tr. 141-142).
21. Burge described the exact procedure which is used to
cut off power to the trolley wire when it is necessary to obtain supplies at any place along the track where supplies are
close to the trolley wire. He said that the section foreman
will come to the supply area and will direct a miner to turn off
the power at the cut-off switch located outby the end of the
track. He said that the miner will take the closest vehicle and
ride to the switch by going into the track entry at the point
where the track ends (Exh. A). When the miner reaches the switch,
he will turn off the power to the trolley wire and the lights on
his vehicle will go out and he will call out that the power is
off. He will stay at the switch to be sure the trolley wire is
not reenergized while supplies are being loaded. Then the foreman will tell the scoop operator to get the supplies from along
the track. After the supplies have been obtained, the foreman
will tell the miner to reenergize the trolley wire and he will
turn the power on and the lights on his vehicle will come back
on and he will drive his vehicle back to the end of the track
(Tr. 164).
22. The hearing in this proceeding was held on May 10,
1983, but both citations under consideration in this case were
written on May 6, 1982. Therefore, the hearing was held over
a year after the citations were written. Barnett. said that this

148U

was the first time he had ever inspected the No. 50 Mine and
that his memory of the location of the various types of supplies
was not very good (Tr. 29; 34; 173). He was, nevertheless, positive that he saw timbers, rock dust, roof bolts, barrels of oil,
grease, and header boards along the track and he insisted that
some of them were on the "tight" side, or left side, of the
track where the trolley wire was closer to the ribs than the
trolley wire was on the "wide" side, or right side, of the track
where the wire was farthest removed from the ribs (Tr. 15-16;
Exh. 2) • Burge was certain that he had observed hydraulic oil
in barrels at a point marked with the word "oil" on Exhibit A.
Burge marked four other places with the letter "B" on Exhibit A
to show where he saw supplies (Tr. 146). Burge also marked a
double "X" at the end of the track to show where he had observed
six or eight timbers, two bundles of wedges, and four or five
cap pieces (Tr. 135; 147).
23. While Barnett conceded that he was not certain as to
which side of the tracks he saw various types of supplies (Tr.
34-35; 53), he was certain that some of them were on the "tight"
side as well as the "wide" side (Tr. 16; 46; 82; 168; 172-174).
While Burge appeared to be certain about all the physical evidence in existence at the time the unguarded trolley wire was
cited, he did vary his estimates as to the distance that some
supplies were from the trolley wire. For example, he first
stated that the hydraulic oil was from 8 to 10 feet from the
trolley wire (Tr. 136) and later estimated the distance from the
wire to be 17 feet (Tr. 157). Additionally, Burge first said
that there were six or eight timbers, two bundles of wedges, and
four or five cap pieces at a point marked with a double "X" on
Exhibit A (Tr. 135) and later stated that he saw eight timbers
and six or eight cap pieces at that same location (Tr. 147).
Although a considerable amount of cross-examination was used in
trying to discredit Barnett for his lack of memory as to which
kinds of supplies were on the "tight", as opposed to "wide",
side of the track, Barnett's inability to recall that precise
information is not of great importance because Burge testified
during direct examination that some supplies were within 3 or 4
feet of the trolley wire and that is close enough to make the
loading of supplies a hazardous type of work (Tr. 134).
24. Another aspect of the testimony which conflicted was
that Burge stated that there was no stopping at a point one
break outby the end of the track as shown by the letter "A" on
Exhibit A (Tr. 133; 182). On the other hand, both Barnett and
Cox said that there were permanent stoppings between each and
every pillar of coal extending along each side of the track entry
at the place where the unguarded trolley wire was observed (Tr.
39; 175). Here, again, the variances in the witnesses' recollection as to the existence or nonexistence of the stopping makes
no essential difference in determining whether the violation was
"significant and substantial" because Burge agreed with Barnett

14BO

that it would be reasonable to expect the miners on the working
section to pick up some of the supplies by having the scoop operator come into the track entry from the end of the track rather
than having the scoop operator come into the track entry through
the disputed opening between two pillars (Tr. 133; 144; 161).
25.
The unguarded trolley wire was about 5 feet above the
mine floor.
The beds of the rail cars from which supplies were
unloaded were 2-1/2 to 3 feet above the mine floor (Tr. 15; 84).
Therefore, when the miners were unloading supplies from the rail
cars, their operating space between the beds of the cars and the
trolley wire was only about 2-1/2 feet.
The floor of the mantrip
or jeep in which personnel ride is closer to the mine floor than
the beds of the supply cars, so Barnett estimated that miners
getting out of a mantrip or jeep have a space of about 4 feet in
which to move when getting out of the cars (Tr. 84). They would
be in a stooped position when getting out of the cars (Tr. 62).
If they should become unbalanced, the normal reaction for a person off balance is to throw his hands up in the air to try to
regain his equilibrium. Consequently, a miner could easily get
his hand against the trolley wire if he should lose his balance
while getting out of a jeep or mantrip (Tr. 63). Even Burge conceded that the miner who moved the bus or mantrip out of the supply area to facilitate the loading or unloading of supplies would
be entering or leaving the bus while the unguarded trolley wire
was still energized (Tr. 149).
26. Another time when a miner could be exposed to an unguarded, energized trolley wire would be when he goes to the
cut-off switch to deenergize the trolley wire before supplies
are obtained along the unguarded trolley wire.
The basis for
the aforesaid observation is that the cut-off switch is on the
"tight" side of the track entry where there is little space between the wire and the ribs (Exh. A). A miner taking a vehicle,
as described in Finding No. 21, supra, to the cut~off switch
would have to travel under the energized wire from the end of
the track to the switch, or travel down the opposite "wide" side
of the track and then cross the track beneath the unguarded,
energized trolley wire, in orqer to get to the switch. He would
have the same exposure to the energized trolley wire while
traveling back to the end of the track after reenergizing the
trolley wire. Moreover, as Burge recognized (Tr. 161), the
scoop or other vehicle driven to the cut-off switch could touch
the energized trolley wire so that its frame would be energized.
As long as the miner driving the vehicle remained in the vehicle,
he would be insulated from the shock hazard by the rubber tires
on the vehicle (Tr. 161), but if he should step out of the vehicle to turn off the switch while the frame of the vehicle was
still energized, he could be injured or electrocuted when his
feet touched the mine floor if any part of his body happened to
remain in contact with the scoop's energized frame. Even if he
should stay in the energized vehicle, he could be shocked when
his hand touched the grounded frame of the cut-off switch to deenergize .the trolley wire.
·

1491

Consideration of Parties' Arguments
USS contends that its failure to guard the trolley wire
did not result in a.violation which can be considered to be
"significant and sµbstantial" as that term has beeri defined by
the Commission in the National Gypsum case, supra. Inspector
Barnett based his belief that the violation was "significant and
substantial" on his claim that people were exposed to the unguarded, energized wire when they got out of the portal bus or
mantrip or any other vehicle, that they were exposed to the wire
when they unloaded supplies from the rail cars, and that miners
were exposed to the wire when they went to the area of the unguarded wire to obtain supplies which had been unloaded in the
vicinity of the track (Finding Nos. 16 and 17, supra).
USS counters Barnett's bases for concluding that the violation was "significant and substantial" by arguing that the guard
is open at the bottom and therefore does not protect anyone,
such as a motorman, who might touch the wire as a result of ris· ing up directly under the wire (Finding No. 20, supra). USS also
contends that only 1 percent of the length of trolley wires is
guarded and that, in the vast majority of instances, miners ride
under unguarded wires all the time and get out of vehicles under
unguarded wires when they work along a track (Br., p. 5).
Although Barnett agreed that the only fatality he could recall resulting from a miner's coming in contact with a trolley
wire was "last year" when a motorman contacted a wire and was
killed, he still believed that a guard protects a motorman when
it is present (Tr. 43). While Barnett also agreed that the guard
was not designed to protect the motorman, since he travels under
an unguarded wire most of the time, he still believed that the
guard protected the motorman for the 1 percent of the time when
the guard is present (Tr. 43). Of course, as Barnett emphasized,
the citation was written for USS's failure to guard the wire
"where men and supplies are unloaded" (Exh. 1). Section 75.1003
does not require guarding for 99 percent of USS's track, so the
violation consisted of USS's failure to guard part of the 1 percent of trolley wire which is required to be protected.
For the foregoing reasons, USS' s claim that the guard i.s
not designed to protect motormen has little relevance in showing
that Barnett improperly classified the violation as being "significant and substantial".
USS stakes its contention that the unguarded wire was not
a "significant and substantial" violation on three other claims
which are not supported by the preponderance of the evidence.
First, USS contends that the bus in which miners traveled to
the working section was covered at each end so that the miners
riding in each end were protected from the unguarded wire when
leaving the bus. No one challenges the fact that the miners

riding in each end of the bus would have been protected, but it
is a fact that the center portion of the bus is open and up to
8 miners may ride in the center or open portion of the bus (Finding Nos. 5 and 16, supra). Additionally, USS claims that, in
this instance, since the first 10 or 12 feet of the wire was
guarded, the open portion of the bus was entirely under the portion of the wire which was guarded (Br., p. 2). USS cites Barnett's testimony at transcript page 36 in support of that assertion, but USS's own witness, Burge, specifically stated that
part of the open section of the bus was under unguarded wire (Tr.
155). Therefore, USS's claim that no one was exposed to a portion of unguarded wire when leaving the bus on the day when the
citation was written is not supported by the preponderance of
the evidence (Finding No. 16, supra).
Second, USS argues that the trolley wire is always deenergized before supplies are unloaded under the wire and that
Barnett did not take into consideration USS's policy of deenergizing the wire when he made his determination that miners had
unloaded supplies under the unguarded, energized wire (Br., p. 3).
Assuming that the miners always deenergize the trolley wire before unloading supplies brought from outside the mine and before
obtaining supplies for use on the working section, the miners
are still exposed at times to traveling on a regular basis under
the unguarded, energized wire.
The cut-off switch is on the
"tight" side of the unloading area (Finding No. 23, supra; Exh.
A). Therefore, miners bringing in supplies on a rail car would
have to get off the car under the unguarded, energized wire to
turn off the power and, in doing so, would come within 2-1/2
feet of the wire when getting off the car, and would have to
repeat that process in order to turn the power back on after
unloading the supplies (Finding No. 25, supra).
Any time the miners move the portal bus to facilitate the
loading or unloading of supplies, they have to get in and out of
the bus under the unguarded, energized wire for the purpose of
moving the bus (Tr. 149).
If the miners want to obtain supplies
located along the track at a point where entry to the track area
would have to be from the end of the track, the miner who is
ordered to cut off the power and turn the power back on would be
exposed to passing under the wire or getting close to it (Finding Nos. 21 and 26, supra). Finally, any time people come to
the working section, as Barnett, Cox, and Burge did on May 6,
1982, they are exposed to the unguarded, energized wire when
they get out of and return to the jeep in which they have traveled to the section (Finding No. 16, supra).
Another argument USS makes in support of its claim that the
violation was not "significant and substantial" is that in order
for anyone getting out of a mantrip to come in contact with a
trolley wire, he would have to fall backward and up before he
could contact the wire (Br., p. 1). That a person might fall

1493

back and up and thereby come into contact with the unguarded,
energized trolley wire is an event which is reasonably likely
to occur as I have pointed out in Finding No. 25., supra.
USS's claim (Br., p. 5) that its miners would have to forget all of their training in order for an unguarded, energized
trolley wire to constitute a "significant and substantial" violation is rejected as not supported by the preponderance of the
evidence. Finding Nos. 14, 16-17, and 25-26, supra, clearly
show that the _violation of section 75.1003 alleged in Citation
No. 1066940 occurred and that it was reasonably likely that the
violation could have resulted in an injury of a reasonably serious nature.
I find that the inspector properly considered the
violation to be "significant and substantial" as that term has
been defined by the Commission in the National Gypsum case,
supra.
Assessment of Penalty
Findings applicable to the instant violation have already
been made with respect to three of the six criteria which are
required to be used in assessing civil penalties. Specifically,
it has already been shown above in assessing a penalty for the
previous violation of section 75.1106-2(c) that_ USS is a large
operator, that the Gary No. 50 Mine is a large mine, that payment of penalties will not cause USS to discontinue in business,
and that USS has a favorable or moderate history of previous
violations.
As to the fourth criterion of whether USS demonstrated a
good-faith effort to achieve compliance after the violation of
section 75.1003 was cited, Barnett testified that the violation
was abated within the time allowed (Tr. 20) and the termination
sheet also states that the violation was abated within the time
allowed (Exh. 1). As I explained above, it has been my practice
neither to increase nor decrease a penalty otherwise assessable
under the other five criteria if I find that an operator has
abated a violation within the time allowed by the inspector.
As to the fifth criterion of negligence, there is no allegation in this instance, as there was with respect to the previous violation of section 75.1106-2(c), that MSHA's enforcement
of section 75.1003 has been confusing because of conflicting
interpretations of the same standard. The reason that the trolley wire had not been guarded for the distance required to protect the miners getting into and out of mantrips and other vehicles and while working in the supply area was that the track
had been pulled back from the working face.
The only guarding
consisted of 10 or 12 feet which still existed following the
action of removing some of the track closest to the faces of the
working section which was engaged in retreat mining at the time

1484
-------

the citation· was written (Tr. 34; 133). The fact that 10 or 12
feet of the guarding still remained should have been a reminder
to the person in charge of shortening the track that the guarding needed to be extended for a considerable distance outby the
place where it then existed. Failure to extend the guarding in
such circumstances was the result of a high degree of negligence.
There has already been an extensive discussion of the sixth
criterion of gravity. The preponderance of the evidence clearly
shows that failure to guard a 250-volt trolley wire which is
only 2-1/2 feet above a supply car and 4 feet above personnel
carriers is a serious violation because there is always a chance
that the miners' protective hats and shoes may not be an adequate
shield against shock or electrocution if they happen to touch the
energized trolley wire (Tr. 150). After all, even a motorman,
under USS's theory, is protected by his hat and shoes from a
shock hazard, yet a motorman was killed by coming into contact
with a trolley wire (Tr. 43). Miners were also exposed to coming
into contact with the unguarded, energized wire when they went to
the cut-off switch to turn the power on and off (Finding Nos. 21
and 26, supra).
In such circumstances, the preponderance of the
evidence supports a finding that the violation was serious.
In summary, the evidence shows that a large operator is involved, that payment of penalties will not cause it to discontinue in business, that it has a moderate history of previous
violations, that the violation was associated with a high degree of negligence, and that the violation was serious. Those
findings support assessment of a penalty of $750 for the violation of section 75.1003.
WHEREFORE, it is ordered:
(A)
The granting (Tr. 5) of the motion by counsel for the
Secretary of Labor to withdraw the petition for assessment of
civil penalty to the extent that it alleges a violation of section 75.1003 in Citation No. 1066939 is confirmed and the oetition is deemed to have been withdrawn with respect to the violation of section 75.1003 alleged in Citation No. 1066939.
(B)
U. S. Steel Mining Co., Inc., shall, within 30 days
from the date of this decision, pay civil penalties totaling
$1,000.00 for the violations of section 75.1106-2(c) alleged in
Citation No. 1066938 ($250) and section 75.1003 alleged in
Citation No. 1066940 ($750).

~C.r<i~

~

Richard C. Steffey
Administrative Law Judge

1495

Distribution:
David E. Street, Esq., Office of the Solicitor, u. S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Ce.rtified Mail)
Louise Q. Symons, Attorney, U. S. Steel Mining Co., Inc., 600
Grant Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail)

yh

1 '.IQ'"t1.
lk_
'·
~v

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

AUG 30 118
JOSEPH D. BURNS,
Complainant

...

v.
ASARCO I

COMPLAINT OF DISCRIMINATION
(Fee Application)
Docket No. YORK 82-19-DM

INC. I

Manchester Unit
Respondent
DECISION
Statement of the Case

This case is before me on complainant's application for
attorney fees 1/ pursuant to section 105(c) (3) of the Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(c) (3). The
fee application is the final phase of a discrimination complaint filed by Joseph D. Burns against ASARCO, Incorporated,
a large multinational non-ferrous metal company.
From 1973 to March 1981, Burns was employed as a repairman at ASARCO's Manchester Unit, an open-pit illemite mine
located in Lakehurst, New Jersey. One of Burns' duties was
to repair a floating suction tlredge utilized to extract
alluvial sands from a water-filled pond approximately
65 feet deep.
On March 20, 1981, Burns was instructed by his foreman,
Thomas Wheeler, to repair cracks in the cross braces of a
dredge ladder. Burns refused to do the work because the
ladder was improperly braced and stabilized and he feared
for his safety. As a result, he was discharged for
insubordination.

1/

While the accepted practice is to use the word •iattorney"
as a noun in either the singular or plural possessive, I
find it simpler to use it as an adjective.

149'1

Believing his refusal to work was a protected activity
within the meaning of section 105(c) (1) of the Mine Act,
Burns filed a complaint with the Mine Safety and Health
Administration (MSHA). Nine months later, MSHA advised
Burns that his disciplinary discharge did not constitute a
violation of section 105(c) (1) of the Act. Persisting in
the belief that he was unlawfully discharged, Burns filed a
complaint pro se with the Commission.
In February 1982,
perfecting amendments to the complaint were received and
after ASARCO filed its answer in March the matter was
assigned to this trial judge. The trial judge requested a
copy of the MSHA investigative report. Upon its receipt,
copies were furnished the parties together with an order to
furnish additional pretrial information. 2/ The prehearing
conference scheduled for July 22, was continued and reset
for September 21 when complainant succeeded in engaging the
firm of Terris & Sunderland of Washington, D.C. on a pro
bono basis.
Representing complainant thereafter were~
Philip G. Sunderland, a partner in the firm and David A.
Klibaner, an associate.
Burns' counsel quickly familiarized themselves with the
case and on August 12, 1982. endeavored to initiate settlement discussions with William O. Hart, counsel for ASARCO.
When Mr. Hart rebuffed these overtures, they were renewed on
August 30 and again on September 20, the day before the
prehearing/settlement conference.
In each instance, Mr. Hart unequivocally rejected
settlement discussions because "ASARCO felt strongly that
the complainant was insubordinate, that he was attempting to
harass the company and get whatever monies he could from the
company through the very liberally worded (and interpreted)
discrimination provisions of the Act." At the conference,
Mr. Hart was not prepared to consider the strengths and

2/ In pro se cases, particularly, the trial judge believes
the decisionmaker has a "duty of inquiry" which imposes an
obligation to scrupulously and conscientiously explore all
relevant facts.
Inherent in the concept of a due process
hearing is the trial judge's obligation, especially in cases
involving unrepresented parties, to inform himself of all
facts relevant to his decision. Goss v. Lopez, 419 U.S.
465, 580 (1975); Heckler v. CampbeIT; 51 L.W. 4561, 4564, n.
(1983) , (concurring opinion of Justice Brennan) •

weaknesses of his case. His excuse was that in five and
one-half years of practice before OSHRC and FMSHRC he was
never before expected to have reviewed the facts of his case
before appearing at a prehearing/settlement conference.
What transpired at the conference of September 21,
convinced Mr. Hart to review his case carefully and discuss
it with his employer. His concern was triggered by his
belief that complainant would be able to establish a prima
facie case and.thus would be likely to prevail on the
merits. Nonetheless settlement attempts during October and
November were unproductive, the parties disagreeing on the
amount of backpay for overtime to which Burns was entitled,
and the necessity for treating complainant's damage claim
separately from the claim for attorney fees in any settlement. On December 3, 1982, four days before the date set
for trial in Toms River, New Jersey, the parties agreed to
bifurcate the matter by settling Mr. Burns' claim for $4,000
and leaving the question of attorney fees and expenses for
determination by the trial judge.
Thereafter, counsel for Burns submitted a fully documented fee application and a reply to ASARCO's opposition.
Supplementing the application is a memorandum in support
thereof, an affidavit by Philip Sunderland, and copies of
all time sheets and expense receipts pertaining to the work
done by Terris & Sunderland personn~l on the Burns case.
Applicants ask for $11,011.14 in fees and expenses resulting
from 170.25 hours of work.
Respondent submitted a generalized opposition to the
application claiming the case was so simple, obvious and
straightforward that any award should be limited to not more
than $2,000. After consideration of the application,
opposition and reply, I determined respondent had not
supported with sufficient particularity its challenge to the
number of hours expended and issued an order requiring
respondent to show cause why ·the application should not be
granted. Respondent filed its response on July 22, 1983.
The following chart summarizes the amounts claimed by
Terris & Sunderland for Attorney fees and expenses:

1499

_y

AMOUNT

WORK CATEGORIES

HOURS

I - Initial Preparation

30.75

$2,325.00

II - Preparation of Proposed
Stipulations of Fact,
Conclusions of Law and
Proposed Findings of Fact
and Conclusions of Law

27. 25 .

1,835.00

III - Hearing Preparation

40.25 4/

2,511.25

IV - Calculation of Damages

16.25

596.25

V - Settlement Discussions

10.00

718.75

VI - Subpoenas

4.75 5/

315.00

VII - Preparation of Attorney
Fees Application
Total

41.00 6/

2,402.50

Expenses

$10,703.75
307.39

Total

$11,011.14

170.25

3/ These figures do not include 35 hours of time eliminated
from the fee request by applicants in the exercise of
"billing judgment."
4/ AS.ARCO's response to the show cause order suggests the
total for categories I, II, and III of 98.25 hours was
excessive because this work "to a large extent, merged into
the general subject of becoming acquainted with the record."
This was not time spent becoming acquainted with an existing
record, it was time spent in preparing for trial. It was
the thoroughness of this preparation that convinced ASARCO
to rethink its intransigent position with respect to settlement.
5/ Nothing in AS.ARCO's discursive submittals specifically
challenges the time spent on categories IV, V, and VI.
6/ The only specific challenge is to the time spent in
preparing applicants' supporting memorandum.
I consider the
time well spent since it contributed greatly to my understanding of the context against which this dispute must be
resolved.
The discussion of the principles that underlie
the lodestar approach was directly relevant to AS.ARCO's claim
that the fees sought are disproportionate to the amount
recovered.
I can find nothing in the record to support the
assertion that ASARCO was prepared to stipulate that the
hourly rate was reasonable. On the contrary, ASARCO suggests
that at one time it felt the hourly rate should not exceed
$60.00.
It was not until after the application was prepared
and filed that ASARCO conceded the hourly rates were reasonable.

1500

The trial judge has reviewed the fee application in
considerable detail and concludes (1) ASARCO failed to show
any of the time claimed was excessive or unreasonable,
(2) the fair market value of the services rendered is the
amount claimed, $11,011.14 plus interest from the time the
application was filed.
Market Value Formula
While the Commission has not addressed the question, 7/
the Supreme Court and the federal courts of appeal have held
that under statutes that provide for public interest enforcement the award of fees to prevailing parties should include
compensation (1) for all time reasonably expended, (2) at
rates that reflect the full market value (hourly rates) for
such time.
Hensley v. Eckerhart, 51 L.W. 4552, 4554-4555,
4558 (1983); Copeland v. Marshall, 614 F.2d 880, 890-900
(D.C. Cir. 1980) (en bane); Lindy Bros. Bldrs. v. American
Radiator Standard Sanitary Corp., 540 F.2d 102, 112-118 (3d
Cir. 1976); Johnson v. Georgia Highway Express, Inc., 488
F.2d 714, 717-719 (5th Cir. 1974); Laffey v. Northwest
Airlines, C.A. 2111-70, (D.D.C., July 29, 1983). Under this
formula, known as the Copeland III or market value formµla,
the number of hours reasonably expended is multiplied by
the applicable hourly rates for the attorneys to arrive at
the "lodestar" calculation. Copeland, supra, 641 F.2d at
891. A reasonable hourly rate is defined as that prevailing
in the community for similar work.
Id. at 892. Once established, the lodestar may be adjusted--Upward or downward to
reflect the characteristics of the case (or counsel) for
which the award is sought. A premium is usually awarded if
counsel would have received no fee if the suit was unsuccessful,
unless the hourly rate reflects that factor.
In addition,
the lodestar may be increased or decreased to recognize a
delay in payment or legal representation of superior or
inferior quality.
Id. at 892-894.
In multi-claim proceedings
no fee is recoverable for services on unsuccessful claims.
Henseley, supra.

7/ In Glen Munsey, 3 FMSHRC 2056 (1981), rev'd in part and
remanded Glen Munsey v. FMSHRC, No. 82-1079, D.C. Cir. 1983,
Judge Stewart used the market value or Copeland III approach
in awarding fees and expenses of $26,462.50 on a recovery of
$2,858.26.
See also Joseph D. Christian, 1 FMSHRC 126 (1979)
($26,231.32 awarded in attorney fees and expenses on a
recovery of $12,072.52); Council of the Southern Mountains, Inc.,
3 FMSHRC 526 (1981), appeal pending, ($14,108.32 awarded in
fees and expenses on a recovery of $626.69).

1501

In evaluating fee applications the trial judge is
required to exercise considerable discretion and to articulate his analysis as clearly as possible. Unless the end
product falls outside a rough "zorie of reasonableness," or
unless the explanation articulated is patently inadequate,
a reviewing authority as a matter of sound judicial administration will not disturb the trial judge's solution to the
problem of balancing the many factors that have to be taken
into account. Cf. Permian Basin Area Rate Cases, 390 U.S.
747, 767 (1968). To accomplish the statutory purpose
attorneys must feel confident they will receive fair compensation for their efforts when they are successful. By the
same token, operators must be assured that judicial oversight
and discretion will be exercised to prevent "windfalls." 8/
Burden of Proof
Recognizing that the analytical framework established
by the market value formula places a difficult, sometimes
onerous, burden on the trial judge 9/ the courts have held
this burden can only be lightened by placing on the fee
applicant a "heavy obligation" to document the various
facets of his claim.
To meet this burden and to establish
the time expended was reasonable, the fee application must
contain detailed information about the hours logged and the
work done. Nat. Ass'n of Concerned Vets. v. Sec. of Defense,
675 F.2d 1319, 1323-1324 (D.C. Cir. 1982). While the fee
application need not present "the exact number of minutes
spent nor the precise activity to which each hour was
devoted nor the specific attainments of each attorney," the
application must be sufficiently detailed to permit the
8/ The attorney fees remedy is actually an independent
cause of action designed by Congress to facilitate litigation
by otherwise unrepresented litigants in furtherance of more
effective enforcement--enforcement essentiallv freed of the
bureaucratic, political and fiscal constraints that otherwise impairs agency enforcement. The existence of this
remedy encourages miners to perform their deputized police
function, gives operators a strong incentive to comply and
tends to deter unnecessary protraction of public interest
litigation.
9/ In Council of Southern Mountains, Inc., supra, Judge
Steffey complained of having to spend "weeks" evaluating a
fee application, apparently assuming the entire burden of
doing so was on him. On the other hand, in Glen Munsei,
supra, Judge Stewart found that allocation to the parties of
the Copeland III burden greatly facilitated his disposition
of the matter.

rr;'.J
l Uv,...,

trial judge to make an independent determination of whether
the hours claimed are justified. Id. at 1327. Casual,
after-the-fact estimates are insufficient. Attorneys who
anticipate making fee applications must maintain contemporaneous, complete and standardized time records which
accurately reflect the work done. 10/ Ibid. The application should also indicate whether nonproductive time or time
expended on unsuccessful claims was excluded. 11/
Once a properly documented application is submitted,
the burden shifts to the party opposing the fee award, who
must submit facts and detailed affidavits to show why the
applicants' request should be reduced or denied. 12/
Donnell v. United States, 682 F.2d 240, 250 (D.C.-Cir.
1982); Concerned Veterans, supra, at 1337-1338 (concurring
opinion of Judge Tamm) . Opposing counsel must frame his
objections with particularity and specificity. The trial
judge is not expected sua sponte to "inquire into the
reasonableness of every action taken and every hour spent by
counsel, and will consider objections to filed hours only
where [he] has been presented with a reasonable basis for
believing the filing is excessive." Donnell, supra, at 250.
It is not enough for opposing counsel to state the hours
claimed are excessive and/or the rates too high and expect
the trial judge to make a line item audit and assume the
burden of making the particularized showing necessary to
support such a conclusory position. Concerned Veterans,
supra, at 1338, Copeland, supra, 903.
ASARCO did not seek discovery to support its assertion
that the hours claimed were excessive.
It simply asserts
that the application as presented and supported was too
vague and indefinite to permit a rational evaluation.
10/ This requirement may have to be flexibly applied in
Commission proceedings that involve attorneys or parties
that do not have the resources to maintain such records.
Compare Kling v. Dept. of Justice, 2 MSPB 620 (1980) with
O'Donnell v. MSPB, 2 MSPB 604 (1980).
11/ Here applicants state 35 hours of time was excluded in
the exercise of "billing judgment" which I assume means time
considered largely unproductive. Because the nature of the
work and the individuals involved were not specified, I have
disregarded this factor in evaluating the fee application.
12/ Discovery is, of course, available to assist a party in
preparing his opposition. Discovery requests should be
precisely framed and promptly advanced before final opposition papers are filed. Unfocused requests serve no useful
purpose and will be denied.
If discovery is pursued for
purpose~ of delay or other improper purposes the final award
may take that into account. Compare, Concerned Veterans,
supra, at 1329.

150J

ASARCO concedes Burns was the prevailing party, the reasonableness of applicants' hourly rates and the applicability
of the lodestar or market value method of evaluating the
application.
The sole challenge made is to the reasonableness of
the number of hours claimed for the particular services
performed. My independent analysis concludes the hours
claimed were reasonable in view of the difficulties
encountered in developing the necessary support for
complainant's prima facie case and ASARCO's'total lack of
cooperation ih limiting, until after the fact, the issues
to be considered in deciding the fee application.
Hours Reasonably Expended
Sufficiency of the Application
Applicant's submission was sufficiently detailed to
permit opposing counsel to conduct an informed appraisal of
the merits of the application or to file a detailed and
focused request for any discovery deemed essential to permit
such an attack. The trial judge's analysis finds that,
in accordance with the market value formula, the application
includes a breakdown and itemization within seven categories
of the work performed, an affidavit describing in adequate
detail the work actually performed by counsel and the paralegals, the time sheets of the attorneys and paralegals who
performed the work, documentation of the expenses claimed
and resumes of the qualifications and attainments of the
lawyers involved. From this data, detailed schedules for
each attorney and paralegal who worked on the case listing
specific tasks performed (e.g., "prehearing conference,"
"prepare stipulations," "draft findings," "draft FOIA request,"
"calculate damages,""discuss settlement," "research and
prepare fee affidavit") were compiled.
In addition, applicants
submitted a supporting memorandum and a response to ASARCO's
opposition. Each of these documents were independently
researched in order to evaluate their worth and to form my
own independent view of the many procedural, policy and
factual issues presented 13/ iri this the first separately
contested fee application---Submitted to the Commission under

13/ No pleading by pleading evaluation was made of the
underlying case file.
In Copeland, supra, at 903, the court
held it is neither practical nor desirable to expect the
trial court to examine each paper in the case file to
decide whether it should have been prepared or could have
been prepared in less time.

the market value formula. 14/ I find ASARCO's claim that
the application is too conclusory to permit anything other
than a generalized attack lacking in merit.
As the courts have admonished, fee contests should not
be allowed to evolve into exhaustive trial-type proceedings
or result in a second major litigation. Henseley, supra, at
4555; Concerned Veterans, supra, at 1324; Copeland, supra at
896, 903.
If each victory on the merits is but the prelude
to an all-out war over the reasonableness of the fee claimed
attorneys may be deterred from pro bono representation of
miners asserting their rights to be free of unlawful coercion,
retaliation, interference, and discrimination. Should this
occur, the legislative purpose will be frustrated. 15/
Challenges to the Lodestar
ASARCO's opposition and its response to the show cause
order reflect its disdain for the whole proceeding and smack
more of a dilatory, blunderbuss attack than a well conceived,
lawyerlike, challenge. That opposing counsel allegedly
chose to spend only 32 to 45 hours in defending the case may
be of interest to his employer but is hardly the measure of

14/ In view of the amounts involved in both the claim on
the merits and the fee application, my initial reaction was
that the litigants should settle the amount of the fee.
I
was somewhat shocked, therefore, to find they were so far
apart. My "displeasure" over this difference--and not the
amount of either--caused me to urge the parties to stipulate
away some of their differences and to attempt further
settlement discussions.
15/ In view of the number of cases in which the Solicitor
declines prosecution that are later found to be meritorious
in public interest proceedings, it is obvious the agency's
enforcement policy leaves much to be desired. During the
last 18 months, miners refused protection by the Labor
Department were filing cases at almost three times the rate
of filing by the agency. Most of these miners are unrepresented but must appear against experienced attorneys representing
the operators. This puts a tremendous strain on the trial
judge charged,as he often is, with both developing and at
the same time trying the facts.
See note 2, supra.

1503

the effort reasonably warranted in- behalf of a complainant. 16/
The trial judge is not in a position to take such a bald
~
assertion seriously. 17/ As a basis for comparison not only
is it irrelevant, it is also wholly undocumented.
After all, if applicants did not win they got nothing,
whereas opposing counsel would be on the corporate payroll
regardless of the outcome. 18/ In a case he did not believe
he could win and with generous authority to settle at any
time, opposing counsel chose to sit back and let complainant's
counsel "sweat it out."
The fact that opposing counsel chose to spend so little
time in preparation for both the pretrial and the trial is
more a commentary on his own evaluation of the lack of merit
of his defense than a basis for criticizing the efforts by
complainant's counsel. It is true, of course, that the
Solicitor's finding of no violation gave opposing counsel
some grounds for complacency and complainant's counsel
considerable cause for concern. With this concern in mind,
applicants were hardly in a position to take the matter of
trial preparation lightly. Counsel working on a contingent
fee basis, unlike counsel who work on a guaranteed salary
basis, have to make money the old fashioned way. They have
to earn it.
I reject, therefore, the "invidious comparison
of time expended" approach espoused by opposing counsel as
a sound basis for reducing or denying any of the time
claimed by applicants.
ASARCO's claim that 170 hours is far too much for a
"straighforward" case such as this is equally without
merit. As respondent admits there were seven disputed
issues of fact, several of which turned on the credibility
of opposing, extremely hostile witnesses. This case had to
be prepared in the manner of all classic swearing matches-leave no stone unturned to develop information useful in
impeaching the opposition's witnesses, and thoroughly
prepare your own witnesses for a rigorous cross examination.
In view of the number of witnesses involved (12 to 15) and
16/ Casual, after-the-fact estimates of time expended by
opposing counsel are no more-acceptable than those by fee
applicants.
17/ Sworn, undocumented assertions are not a lawyerlike way
to establish time expended in a matter.
18/ The total absence of a risk factor makes time expended
by opposing counsel an unacceptable calculus of the time
expended by complainant's counsel.

150G

the incentive for them to be selective in their testimony, I
cannot conscientiously find that the 98.25 hours of time
expended in preparation for the trial of this matter was by
any reasonable standard excessive.
The proposed stipulations and proposed findings of fact
challenged were contemplated by the pretrial orders. Their
function was to clarify and narrow the issues in order to
save trial time.
It is undisputed that respondent's counsel
depended heavily on applicants' work product in preparing
his own proposed findings.
It hardly lies in opposing
counsel's mouth, therefore, to argue that the time expended,
27.25 hours, was unnecessary. My review of these proposals
shows applicants did a thorough, competent and responsible
job, particularly with respect to the damage calculations.
I am unable to conclude that the time expended was unreasonable.
Certainly respondent has furnished no probative basis for my
doing so.
If anything, I find the work performed by the paralegals
in calculating the damages was extremely efficient considering
the difficulties they encountered. Reconstructing complainant's
overtime in the face of respondent's reluctance to cooperate
was no mean feat.
I cannot fault the 16.25 hours expended
for this work.
Respondent has not questioned the 10 hours spent in
settlement discussion. Nor has any question been raised
about the 4.75 hours expended in preparing subpoenas for
witnesses.
The extra work involved in persuading the
Department of Labor to allow the MSHA Special Investigator
to appear was certainly time well spent even though his
appearance later became unnecessary. His prospective
appearance was obviously a factor that contributed to the
settlement.
The claim that time spent in trial preparation on and
after October 7, 1982, was unnecessary is without substance. 19/
Counsel admits that shortly after the pretrial conference of
September 21, 1982, ASARCO authorized him to settle the
matter for $5,000. Despite this, he delayed making the
off er until applicants called him on October 7 and proposed

19/ Mr. Hart was warned that unless the matter was settled
a heavy expenditure of time would be necessary to prepare
for trial.

150~

settling the matter for $7,000. 20/ Mr. Hart rejected this
but countered with an offer to settle both claims for $4,000.
When the counteroffer was rejected, applicants again proposed
separating the damage claim from the fees claim and to
settle the former for $5,750. This was on November 22,
1982. Mr. Hirt considered the proposal "insulting" and
never responded.
In the meantime, applicants were expending considerable
time in preparation for the trial which had been set for
December 7, 1982. On the eve of trial, December 3, 1982,
Mr. Hart suddenly reversed his position and thereafter the
parties agreed to settle complainant's claim for $4,000 and
to submit applicants' fees for determination by the trial
judge.
While attorney fee applications are closely related to
the merits proceeding, they are at the same time more akin
to separate causes of action.
It is the mixed nature of
such proceedings that gives rise to much misunderstanding
and procedural floundering. ASARCO's claim that applicants'
refusal to take their fees and expenses out of a common fund
was a ploy to prolong unnecessary trial preparations shows
a lack of sensitivity to the relevant ethical and tactical
considerations. The Code of Professional Responsibility
prohibits an attorney from representing a client where the
lawyer's personal financial interest may be in conflict with
that of his client. DR 5-lOl(A). Thus, where a lump sum
settlement is offered to cover both damages and fees the
lawyer and his client are invited to compete over how the
fund shall be shared. This creates a conflict of interest
which is best avoided and resolved by settling the two
claims separately. Prandini v. National Tea Co., 557 F.2d
1015, 1021 (3d Cir. 1977); Mendoza v. United States, 623
F.2d 1338, 1352-1353 (9th Cir. 1980); Obin v. Dis. 9 of
Intern. Ass'n. etc., 651 F.2d 574, 582(8th Cir. 1981).
It was not, therefore, improper for applicants to
insist that the fees question be decided separately from the
settlement on the merits. Further, it would be contrary to
the legislative purpose to force miners to absorb attorney
fees and expenses or to allow operators to force their
attorneys to compete with their clients for reimbursement
for such fees and expenses.
20/ At that time it appears the attorney fees may have
amounted to only $3,000.

lfJOd

Counsel for ASARCO was aware from the beginning that
applicants were reluctant to take a discounted common fund
settlement and were insisting on separating the two issues.
At any time on or after October 7, 1982, Mr. Hart could have
saved the expenditure of time for trial preparation by
agreeing to bifurcate the matter. Applicants were ·duty
bound to continue their preparation until the matter was
settled. The pressure of such preparation and the imminence
of the trial date undoubtedly encouraged reversal of ASARCO's
position with respect to separation of the issues. To deny
or reduce the hours spent in trial preparation would unfairly
penalize applicants and encourage a practice inimical to the
purpose of the statute and high professional standards.
For reasons previously stated, ASARCO's objection to
the time spent in preparing applicants' supporting memorandum
is denied. 21/ Once Mr. Hart made the decision to require
applicants to prepare and file a fully supported lodestar
application rather than to stipulate with respect to matters
that have subsequently been conceded, applicants in the
exercise of responsible professional judgment had no choice
but to follow the applicable precedents and to furnish the
trial judge and the Commission with a fully articulated
rationale for awarding the same fees that would be charged
a fee-paying client under the market value approach. 22/
The hourly rates of $90 for Mr. Sunderland, $65.00 for
Mr. Klibaner, and $25.00 for the paralegals are not contested

21/ Note 6, supra. Time reasonably devoted to obtaining
attorney fees is, of course, itself subject to an award of
fees.
Environmental Defense Fund v. EPA, 672 F.2d 42, 62
(D.C. Cir. 1982).
22/ ASARCO, of course, cannot expect the trial judge to
protect it against actions by its own counsel that increased
its exposure to liability for complainant's fees and expenses.
Operators should not be given an incentive to protract
litigation in which miners seek to vindicate rights guaranteed
by the statute. The prospect of liability for fees and
expenses should deter not only violations of the statute but
obviate any incentive to litigate imprudently. Copeland,
supra, at 899.

150U

and are certainly reasonable. 23/ No request is made for an
increase in the lodestar due tC>"the contingent nature of the
arrangement because the billing rate already includes an
allowance for that contingency.
I find the quality of representation was at the level
of skill. normally expected for attorneys practicing at these
rates and that no upward or downward adjustment in the
lodestar is called for on the basis of the results achieved. 24/
To account for the delay in payment, however, the award
should include interest at the market rate from the date of
filing of the application. Donnell, supra at 254; EDF v.
EPA, supra, at 51-52; Copeland, supra, at 893; Concerned
veterans, supra, at 1329. Interest, of course, reflec;:ts ~he
time-value of money. That when coupled with what I find is
a fully compensable hourly rate for all hours reasonab~y
expended constitutes the full market value of the services
rendered.
Expenses, which were undisputed, amounted to $307.39.
23/ There is no claim or showing that the associate's
efforts were unorganized, wasteful, or duplicative or that
the associate's labors were inadequately supervised by the
partner. The ratio of the associate's time to the partner's
time (3:1) is within an acceptable zone or reasonableness.
24/ The suggestion that the fee claimed is disproportionate
to the monetary relief obtained reflects a basic misunderstanding of the fee remedy. The purpose of the fee provision
is to give miners victimized by discrimination the resources
to vindicate their rights through litigation. Attorneys who
undertake such representation face not only the risk of
losing but also the· fact that in most instances the monetary
recovery is relatively modest. It is comparatively easy to
obtain competent counsel when the litigation is likely to
produce a substantial monetary award.
It is much more
difficult to attract counsel when a substantial part of the
relief sought is intangible and nonmonetary. Here the
nonmonetary effect of the litigation is a deterrent to
future acts of retaliation against miners who refuse to
work under unsafe conditions.
If that results in preventing
one fatality or one disabling injury the socio-economic
purpose of the statute and the litigation will be achieved
and will more than justify the fee claimed.
"Fee awards
that produce substantial nonmonetary benefits must not be
reduced simply because the litigation produced little
cash." Copeland, supra, at 907.

1510

Order
The premises considered, it is ORDERED that on or
before Thursday, September 15, 1983, ASARCO, Incorporated
pay attorney fees and expenses in the amount of $11,011.14
with interest at the rate of 12% per annum from the date of
the fee application, February 15, 1983, to the date of
payment to the law firm of Terris & Sunderland, 1526 18th St.,
N.W., Washington, D.C., and that subject to payment the
captioned matter be DISMISSED.

Josepn B. Kenn
Administrative
Distribution:
Joseph D. Burns, 159 L Stafford Forge Rd., West Creek, NJ
08092
(Certified Mail)
Philip G. Sunderland, Esq., Terris & Sunderland, 1526 18th St.,
N.W., Washington, DC 20036
(Certified Mail)
William o. Hart, Esq., Industrial Relations Department,
Asarco, Inc., 120 Broadway, New York, NY 10271
(Certified
Mail)

ejp

1511

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

August 31, 1983

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 83-57-M
A.C. No. 20-00801-05501
Nugent Sand Mine

NUGENT SAND COMPANY, I~C.,
Respondent
FURTHER ORDER TO SUBMIT INFORMATION
On August 8, 1983, I issued an order disapproving the
Solicitor's motion for settlement with respect to three of
the six violations involved in this matter. With respect to
these three which are assessed at $20 apiece, I ordered the
Solicitor to submit additional information sufficient for me
to determine whether the proposed penalties are justified.
The Solicitor has now submitted an amended motion.
Unfortunately, this motion also is inadequate. With respect
to Citation No. 2088974, absence of a fire extinguisher on a
front-end loader, the Solicitor advises that there was no
likelihood of injury and a moderate degree of negligence.
He does not, however; furnish any reasons to support these
conclusions.
Indeed, the relevant boxes on the citation are
not even checked.
I have previously stated that the mere
checking of the boxes does not constitute a sufficient
basis upon which I could approve settlement. However, the
absence of even these checks leads me to wonder how the
Solicitor reached the conclusions set forth in this motion.
With respect to Citation No. 2088975, the absence of a
guard on a take-up pulley, the Solicitor advises that there
was a low degree of negligence and no likelihood of injury.
However, once again no reasons were given to support these
conclusions. Moreover, the boxes were not even checked on
the citation form. - The same is also true of Citation No.
2088976 with respect to which the Solicitor states there is
low negligence and no likelihood of injury.

1512

I very much regret having to send this case back to the
Solicitor.
However, the Commission has its statutory
responsibilities to fulfill and cannot rubber stamp bare
conclusions especially where as here, the citations on their
face do not appear to support the Solicitor's representations.
Accordingly, the amended settlement motion is disapproved
and the Solicitor is Ordered to furnish further information
within 30 days of the date of this order adequate for me to
determine whether the three proposed $20 penalties are
justified.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U. S. Department
of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL
60604
(Certified Mail)
Mr. Glenn Adams, General Manager, Nugent Sand Company, Inc.,
2875 Lincoln, P. o. Box 506, Muskegon, MI 49443
(Certified
Mail)

/ln

151d

FEDERAL MINE SAFETY AND. HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, o.c; 20006

August 31,_ 1983

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 83-80-M
A.C. Nti. 20-00038-05504

v.

Medusa Cement Company
Plant

MEDUSA CEMENT COMPANY,
Respondent

DISAPPROVAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion to approve settlement
in the above-captioned proceeding. The Solicitor proposes
to settle the one violation in this case for the original
assessment of $56.
Citation No. 2089073 was issued for a violation of 30
C.F.R. § 56.16-6 because the covers on oxygen and acetylene
cylinders being transported were not in place to protect the
sterns of the cylinders. The Solicitor states that the
operator demonstrated no negligence but he gives no basis
for this assertion. The Solicitor further states that the
violation was significant and substantial but again he gives
no reasons.
I note that the inspector stated on the citation
that falling materials from the conveyors could easily
strike one of the sterns and create a serious hazard. The
inspector checked boxes indicating occurrence was reasonably
likely and could reasonably be expected to result in lost
workdays or restricted duty.
I have recently held in many other cases that the term
"significant and substantial" is irrelevant in a penalty
proceeding before the Commission. Such a proceeding before
the Commission under section 110 of the Act is entirely
de novo. Whether or not the Secretary looks to the present
definition of "significant and substantial" does not affect
these proceedings. Here the relevant criterion is gravity.
Moreover, I also have stated that I cannot base a settlement
approval upon an inspector's checks in boxes on a form
without some explanation from the Solicitor.

1514

The Solicitor has told me nothing about size, prior
history, or ability to continue in business.
Under section llO(i) of the Act I am charged with the
responsibility of determining an appropriate penalty in
light of the six specified criteria. The Solicitor has not
even mentioned most of these criteria and where he has, he
either gives no reasons (negligence) or misstates the standard
(gravity).
The Solicitor must tell me why $56 is an appropriate
penalty in light of the six statutory criteria. The fact
that this was the originally assessed amount is not, of
course, .determinative in this de novo proceeding.
Accordingly, the settlement motion is Denied and the
Solicitor is Ordered to submit the necessary information
within 30 days from the date of this order.

;----~
Paul Merlin
Chief Administrative Law Judge
Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, u. S. Department
of Labor, 230 South Dearborn Street, Chicago, IL 60604
(Certified Mail)
Mr. Thomas Thimm, Medusa Cement Company, Bells Bay Road,
P. O. Box 367, Charlevoix, MI 49720
(Certified Mail)

/ln

1515