December 1981
Commission Decisions
12-02-81
12-03-81
12-04-81
12-18-81
12-22-81
12-22-81
12-31-81

Joseph A Campbell v. 111.e Anaconda Co.
Cowin & Co., Inc.
Phelps Dodge Corp.
Penn Allegh Coal Co.
Consolidation Coal Co.
Maben Energy Corp.
Royalty Smokeless Coal Co.

WEST 80-221-IM
HOPE 76-210-P
WEST 79-349-DM
PENN 81-6-R
WEVA 80-116-R
WEVA 79-447-R
HOPE 76X409

Pg. 2763
Pg. 2764
Pg. 2765
Pg. 2767
Pg. 2775
Pg. 2776
Pg. -2780

LAKE 81-106-·m.f
PITT 78-97-P
LAKE 82-1-C
LAKE 81-73-M
LAKE 81-117-M
WEVA 81-495
PENN 81·-154
KENT 81-167-D
PENN 81-154
PENN 81-240-R
WEST 80-350-R
WEST 80-467-M
VA 80-'-171
CENT 80-388-M
WEST 80-494-R
WEVA 81-248-D
KENT 80-273
KENT 81-74
KENT 81-89-D
LAKE 80-352-R
VA 81-32-D
VA 81-51-M
VA-81-61
CENT 80-306-M

Pg. 2782
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Pg. 2858
Pg. 2871
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Pg. 2896
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Pg. 2917
Pg. 2927
Pg. 2936
Pg. 2947

Administrative Law Judge Decisions
12-01-81
12-07-81
12-07-81
12-09-81
12-09-81
12-15-81
12-16-81
12-21-81
12-22-81
12-22-81
12-23-81
12-23-81
12-29-81
12-29-81
12-29-81
12-29-81
12-30-81
12-30-81
12-30-81
12-30-81
12-30-81
12-30-81
12-30-81
12-31-81

White Pine Copper Div., Copper Range Co.
Penn Allegh Coal Co.
Local 2250, UMWA v. Old Ben Coal Co.
Elbert Baugh Excavating Inc.
Southwestern Portland Cement Co.
Beckley Coal Mining Co.
Penn Allegh Coal Co.
Marlene Finn v. Brown Badgett, Inc.
Penn Allegh Coal Co.
Mathies Coal Co. & Consolidation v. MSHA
CF & I Steel Corp.
Richard M Atkinson dba Somis Sand & Rock Co.
Absolute Coal Corp.
111.e Quapaw Co.
Kaiser Steel Corp.
Nicholas Ramirez v. W-P Coal Co.
Martiki Coal Corp.
Connnonwealth Mining Co.
Ernest Dials v. Wolf Creek Collieries
Consolidation Coal Co.
MSHA ex rel Ricky Ray Ferrell v. R&E Coal Co.
A H Smith Stone
Hannan Mining Co.
Kaiser Cement Corp.

Commission Decisions

DECEMBER
The following cases were Directed for Review during the month of December:
William Haro v. Magma Copper Company, WEST 79-49-DM, 80-116-DM. (Judge Morris,
October 23, 1981)
Richard Clemons v. Anaconda Copper Company, WEST 81-298-DM. (Judge Broderick,
Dismissal of October 28, 1981)
Secretary of Labor, MSHA v. Central Ohio Coal Company, LAKE 81-78. (Judge
Cook, Settlement Approval of November 13, 1981)
Secretary of Labor, MSHA v. Inverness Mining Company, LAKE 81-45.
Kennedy, November 4, 1981)
Secretary of Labor, MSHA v. Sewell Coal Company, WEVA 79-31.
November 4, 1981)
Rosalie Edwards v. Aaron Mining, Inc., WEST 80-441-DM.
November 17, 1981)

(Judge

(Judge Kennedy,

(Judge Morris,

Secretary of Labor, MSHA, on behalf of Gordon Bennett, et al v. Emery Mining
Company, WEST 80-489-D(A). (Judge Morris, November 24, 1981)
Secretary of Labor? MSHA v. Kocher Coal Company, PENN 80-174-R, 80-197.
(Judge Laurenson, Petition for Interlocutory Revi.ew of December 14, 1981
order)
Review was Denied in the following case

during the month of December:

Juan Munoz v. Summit Minerals Company, CENT 80-331-DM.
October 23, 1981)

(Judge Boltz,

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

December 2, 1981

JOSEPH A. CAMPBELL,
Complainant

v.

Docket No. WEST 80-221-DM

THE ANACONDA COMPANY,
Respondent
ORDER
On November 23, 1981 Anaconda filed a petition for review raising
questions of law and fact relating to the judge's decision issued on
October 23, 1981. That decision includes a finding that Complainant
Campbell was discharged on October 26, 1979 in violation of the discrimination provisions of § 105(c) of the Mine Safety and Health Act of
1977, 30 U.S.C. § 815 (Supp. III, 1979). Back pay and attorney's fees
for the Complainant also are awarded, but the judge requests that counsel
for both parties advise him in writing by November 16, 1981 whether they
have agreed. on the amounts due under those awards and if so, to submit
those amounts to him for approval. The decision provides that if approval
is given, an order will be issued which finally disposes of the proceedings;
if counsel are unable to agree, further posthearing orders will be
issued.
The October 23 decision does not resolve the monetary amounts.
Consequently, it is not a final disposition and does not initiate the
statutory review period under § 113 of the Mine Act, 30 U.S.C. § 823.
Accordingly, Anaconda's petition for review filed on November 23, 1981
is dismissed as premature. Victor McCoy v. Crescent Coal Company,
(November 5, 1981). The parties may file appropriate
3 FMSHRC
petitions for discretionary review in accordance with § 113 of the Mine
Act and Commission Rule 70, 29 C.F.R. § 2700.70, after the judge enters
his final disposition of this proceeding.

2763
81-12-5

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

December 3, 1981

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

Docket Nos. HOPE 76-210-P
HOPE 76-211-P
HOPE 76-212-P
HOPE 76-213-P

v.
COWIN AND COMPANY, INC.
ORDER

The Secretary has filed a petition for reconsideration of a Commission decision issued November 6, 1981. He requests clarification of
that decision through an express statement that only two petitions for
assessment of penalties were dismissed.
The Commission's order granting review limited the issue to whether
30 CFR §77.1903(b) is a mandatory safety standard. We held that it is
not. The only petitions and penalties that were before the Commission,
and hence were dismissed, involved section 77.1903(b). In context, we
believe it is clear that the Commission did not review and the decision
did not affect violations of other standards at issue before the judge.
Accordingly, the petition for reconsideration is denied.

2764

81-12-6

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

December 4, 1981

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

Docket No. WEST 79-349-DM

on behalf of Johnny Chacon

v.
PHELPS DODGE CORPORATION
ORDER
The Secretary has petitioned for reconsideration of our decision
issued November 23, 1981. The Secretary argues that the decision was
based largely on our resolution of factual issues not properly before
us. The Secretary relies on our direction for review, which stated in
part, "The issues on review are limited to those raised in section IV(E)
of [Phelps Dodge's] petition· [for discretionary review]." That section
of Phelps Dodge's lengthy petition raised issues concerning the judge's
application of the burdens of proof in this case. The issue reviewed
was a broad one requiring discussion of both legal and factual questions.
In declining to review a section of the petition challenging ten specific
factual findings, we did not don a straightjacket. Rather, we selected
a statement of the issue designed to focus the parties' attention on
whether the appropriate analytical and evidentiary tests for a discrimination case had been properly applied. The fact that Phelps Dodge
raised a question regarding a particular finding of the judge in one
subsection of its petition did not preclude evaluation of that finding
as an integral part of the section directed for review. Neither §113 of
the Mine Act, 30 U.S.C. §823 (Supp. III),nor the Commission's rules
require or encourage rigid rules of pleading.

2765

To determine whether the judge properly applied the various burdens
of proof in this case, it was necessary to exam1ne the evidentiary
factors he considered in arriving at his conclusions. Indeed, the
Secretary himself discussed facts in his brief to the Connnission.
Discrimination cases involve many mixed factual and legal questions.
We could not determine whether the Secretary "had sustained [his] burden
of proof and/or burden of establishing a prima facie case" -- the
essential question directed for review -- without examining the evidence
pertaining to the prima facie case and the operator's defense against
that case.
Accordingly, the petition for reconsideration is denied.

2766

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

December 18, 1981

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 81-6-R

v.
PENN ALLEGH COAL COMPANY

DECISION

This case arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §801 et~· (Supp. III 1979). The proceeding involves
the validity of a section 104(b) withdrawal order and the underlying
citation issued to Penn Allegh Coal Company for an alleged failure to
comply with a provision in its dust-control plan. For the reasons discussed below, we affirm the judge's decision. ];/
The citation alleges a violation of 30 CFR §75.316, which implements section 303(0), 30 U.S.C. §813(0), of the Act. Section 75.316
states in part:
A ..• dust-control plan and revisions thereof suitable to the
conditions and the mining system of the coal mine and approved
by the Secretary shall be adopted by the operator and set out in
printed form •••• Such plan shall be reviewed by the operator and
the Secretary at least every 6 months.
(Emphasis added.)

1./

Chairman Collyer assumed office after this case had been considered
at a Commission decisional meeting and took no part in the decision.
A new Commissioner possesses legal authority to participate in pending
cases, but such participation is discretionary and is not required for
the Commission to take official action. The other Commissioners reached
agreement on the disposition of the case prior to Chairman Collyer's
assumption of office, and participation by Chairman Collyer would therefore not affect the outcome. In the interest of efficient decisionmaking, Chairman Collyer elects not to participate in this case.
Former Commissioner Nease participated in considering this case and
voted to affirm the judge's decision, but resigned from the Commission
before the decision was ready for signature.

2761"(

81-12-16

The dust control plan at issue required Penn Allegh to maintain a
minimum water pressure of 150 psi (pounds per square inch) in all
continuous mining machines. This provision of the plan dated January 12,
1977, was in effect since some time prior to March 1978. The purpose of
this requirement is to insure that an adequate amount of water is dispensed from the machines' sprays thereby diminishing respirable dust.
The plan, however, was unclear in two respects: it did not specify the
location at which the water pressure was to be measured, and did not
indicate whether the reading was to be taken while the machine was
operating ("flow condition") or while the machine was turned off ("static
condition").
Despite these ambiguities, no controversy apparently arose until
April 1980, when an inspector issued two citations for alleged failure
to meet the 150 psi requirement. ]:_/ The inspector measured the pressure
near the shutoff valve under flow conditions. Penn Allegh abated the
citation under protest claiming the plan called for, and previous
measurements had been taken under, static conditions. 11 In light of
the April citations, Penn Allegh sought to amend the plan to require 70
psi-flow. MSHA indicated it would tentatively approve the modification
while it conducted a brief dust survey; it would grant final approval
only if the survey showed that respirable dust remained at an acceptable
level. However, Penn Allegh declined to submit to the survey claiming,
among other things, that it was not "technically and scientifically
sound." As a result, MSHA notified Penn Allegh that a 150 psi-flow
requirement would remain in effect.
In late July 1980, Penn Allegh submitted its scheduled 6-month dust
plan review. It changed the 150 psi requirement of the plan to require
either 150 psi-static or 70 psi-flow. An MSHA District 2 mining engineer
John Karp, approved the revision on September 22, 1980. This official
had seen MSHA's letter offering to conduct a survey and had mistakenly
'
assumed that
the survey had been conducted and the change made in
accordance with the survey results.
MSHA first noticed its mistaken approval in October 1980, when an
inspector preparing for a dust-compliance inspection discovered the
change. On Thursday, October 2, 1980, MSHA officials informed Penn
Allegh by telephone and a follow-up letter mailed the same day that 150
psi-flow would be the enforced provision. On the following Monday
morning, an inspector issued the citation at issue in the present case
after he measured a water pressure of 80 psi-flow near the shut-off
valve. He returned the next morning to see if the condition had been
abated. He measured the machine's water pressure at 110 psi-flow. When
]:_/
These April citations are pending in a different proceeding before
an administrative law judge. Docket Nos. PENN 80-208-R and 80-209-R.
We note that Penn Allegh abated and did not contest a previous citation
issued on January 29, 1980, alleging a violation of the 150 psi water
pressure requirement. However, this citation did not specify whether
the pressure was measured under flow or static conditions and therefore
it does not help resolve the ambiguity.
l_/
Both parties agreed that regardless of the measurement method, the
water -pressure was to be measured at a location near the machines'
shutoff valves.

2768

Penn Allegh informed him that no action would be taken to bring the
machine into compliance with MSHA's interpretation of the plan (150 psiflow) he issued the §104(b) withdrawal order which is also contested on
review.
The judge affirmed the citation and withdrawal order. 4/ He
construed the plan's "150 psi" term to mean 150 psi measured under flow
conditions. Turning to the revision, the judge found that MSHA made a
good faith mistake in its approval. He found that MSHA validly repudiated
its approval of the revision and concluded that the original plan's 150
psi-flow provision was the enforceable water pressure. Accordingly, the
judge upheld the citation and withdrawal order.
We first address the meaning of "150 psi" as the term is used in
the plan. The 150 psi water pressure provision is listed on page 6(a)
of the dust plan. Originally the page was one of several standard form
sheets provided by MSHA for use in submitting a plan. The latent ambiguity
occurs because the column headed PSI, under which the 150 requirement is
listed, does not specify whether the measure is to be taken under static
or flow conditions. The parties' arguments are largely conflicting
assertions. Penn Allegh asserts the 150 psi requirement was to be
measured under static conditions. Conversely, MSHA contends the water
pressure was to be measured under flow conditions.
The strongest evidence indicating that measurement under flow
conditions was required is MSHA's District 2 policy of measuring all
continuous miner water pressures under flow conditions. MSHA's coal
mine technical health specialist, Robert Davis, who reviewed all dustcontrol plans in District 2, testified that he had always instructed
inspectors to measure water pressure under flow conditions. He stated
he knew of no District 2 dust-plans that called for measurement under
static conditions. He concluded that MSHA had adopted the policy because
a static measure failed to accurately indicate the water volume at the
sprays to suppress dust. His testimony was corroborated by three other
MSHA witnesses.
Balanced against this evidence of District 2's practice of measuring under flow conditions is the testimony of Penn Allegh's chief
engineer, Alfred Reisz. He stated that when he drafted and submitted
Plan A, using the form sheets which MESA (MSHA's predecessor) provided,
he contemplated a static measure taken at a location near the shut-off
valve. He assumed that since the form did not have a space for the
location or condition of measure he did not need to specify them. 5/
4/

The judge's decision is reported at 2 FMSHRC 3072 (1980).
Additionally, Penn Allegh produced evidence indicating that because
District 2 measured the water pressure at the shut-off valve, a flow
measure was not a better indicator of the water available at the sprays
for dust suppression. After the water enters the continuous miner, it
continues through the machine performing a cooling function. It passes
through two devices, a pressure regulator and a booster pump. These
devices coupled with the circuitous path it takes, change the water
pressure so that the entering pressure does not bear any relation to the
existing pressure at the sprays. Penn Allegh's explanation of the inner
workings of the machine supports a conclusion that a flow measure taken
at the shut-off valve might not be more logical than a static measure
taken at the same location. However, the relative merits of the locations
at which pressure could be measured is not before us.

"'i_!

The statute and the standard require the parties to agree on a dust
control plan in the interest of miner safety. Therefore, after a plan
has been implemented (having gone through the adoption/approval process)
it should not be presumed lightly that terms in the plan do not have an
agreed-upon meaning. See Ideal Mutual Ins. Co. v. CDI Construction Inc.,
640 F.2d 654, 658 n.7 (5th Cir. 1981). We find the record contains
substantial evidence to support the judge's finding that the plan encompassed a flow measure. We believe that the evidence of consistent
enforcement supports the conclusion that a flow measure was intended in
Penn Allegh's dust plan. We note that in light of the very purpose of
the provision, i. ~· suppression of dust during the operation of continuous miners, measurement under flow conditions, rather than measurement with the shut-off valve closed, seems eminently appropriate (but
seen. 4). We further hold that to the extent the judge's conclusion
reflects a credibility determination, i.e., accepting the testimony of
MSHA's witnesses as to the meaning of th; term, rather than Penn Allegh's,
that credibility determination should be given deference.
With the proper interpretation of the plan established, we address
the effects of the revision. We believe the fact that the citation and
withdrawal order were issued against the backdrop of an ongoing dispute
is important. Penn Allegh had sought to amend its plan before it
submitted its plan for the 6-month review under section 75.316.
However, this early modification attempt failed when Penn Allegh declined
to permit a dust survey that MSHA indicated was a prerequisite to lowering the required water pressure. MSHA official Robert Davis, both by
letter and in conversation with Penn Allegh's chief engineer, made it
clear that it was not MSHA's policy to modify a plan provision without
first conducting a survey. Nevertheless, Penn Allegh submitted its six
month review plan without submitting to the survey and without calling
attention to the change made in the existing plan. In this regard, we
believe that Penn Allegh could have been more open in its discussions
with MSHA concerning the plan at this point.
In contrast, the judge found that MSHA made a good faith mistake.
The MSHA mining engineer who approved the revision freely admitted his
error. He stated that in his review, he interpreted MSHA's letter
offering tentative approval of 70 psi-flow reduction as conditioned on
the results of a dust survey. He was unaware of and not involved in the
ongoing water pressure dispute. He assumed the survey had been successfully concluded and therefore that the reduction was permissible. He
admitted that if he had examined Penn Allegh's file more carefully he
would have noted that the survey had not been conducted and, in accordance with MSHA's survey policy, would have disapproved the change. In
the light of the circumstances, we affirm the judge's findings that the
mistake was made in good faith, and that MSHA could repudiate the 70-psi
revision. !!../

&_I

We note that the present situation, where a revision of a plan is
approved by mistake, is an infrequent occurrence. It is to be distinguished from the situation where during a review, MSHA decides that a
dust plan provision must be revised. In the latter situation, MSHA
would have to notify Penn Allegh of its view that a revision is necessary,
provide a reasonable time for adopting and filing a revised plan, and,
if a satisfactory solution is not reached, citations would be issued.
See di~cussion infra.

2770

The final question concerns the ramifications of the Secretary's
revocation. After rescinding its mistaken approval of the revision,
MSHA unilaterally informed Penn Allegh that the former 150 psi-flow
requirement was to be followed. The heart of Penn Allegh's argument is
that MSHA thereby attempted to enforce a provision that Penn Allegh had
not adopted. This, Penn Allegh asserts, violates section 75.316's
adoption/approval scheme as interpreted in Bishop Coal Co., 5 IBMA 231
(1975), and Zeigler Coal Co. v. Kleppe, 536 F.2d 398 (D.C. Cir., 1976).
In Bishop, MESA attempted to impose a requirement for rib supports
in an operator's roof control plan. ]_/ The operator's previous plan
contained no rib support provision. It was added to the plan by a MESA
official who, after preliminary discussions, obtained the operator's
signature on a blank page of the plan and later added the rib support
requirement ex parte. In reviewing withdrawal orders issued by MESA,
the Board expounded on the adoption/approval process, stating first:
[MESA] is required, in our view, to notify the operator in
writing of a disapproval of, or the need for changes in, a roof
control plan proposal adopted and filed by such operator for
approval, and must include in such notice a concise, general
statement of the reasons for such action.
(Emphasis in the original) 5 IBMA at 243.
discuss the parties' responsibilities:

The Board continued to

[I]f a[n operator's] proposal has a legitimate objective, but
is in need of change, the District Manager under the subject regulation, must specify in writing the nature of the changes and afford
the opportunity to discuss and negotiate over such changes. It is
of course implicit that the District Manager also specify a reasonable time within which to adopt and file an amended proposal for
approval .•. In notifying an operator in writing of the deficiencies
of its proposal and suggested changes, a District Manager must be
sufficiently specific to adequately apprise an operator of what
they are. When outlining changes, a District Manager does have the
leeway to suggest draft language or deletions from the proposal at
hand, but he cannot impose them by fiat upon an operator who refuses
to "adopt" such changes. It is after all the operator who must
determine whether to adopt suggested or negotiated changes or to
litigate in the face of enforcement actions by MESA which are bound
to follow an impasse with the District Manager.
(Footnotes omitted; emphasis added) 5 IBMA at 244.
In Zeigler Coal Co. v. Kleppe, the operator contested MESA's issuance
of a withdrawal order on the basis that the ventilation plan requirements
that MESA sought to enforce were not enforceable mandatory standards
even though the operator had adopted the questioned provision. The
operator contended that, if the plan's requirements were deemed to be
enforceable mandatory standards, arbitrary enforcement would result
]_/
Although Bishop dealt with roof control plans under the 1969 Coal Act,
a similar "approval by the Secretary" and "adoption by the operator"
process was mandated.

2771

because the plan was not subject to the consultative procedures in
either section 101 of the Mine Act or section 553 of the Administrative
Procedure Act. The D.C. Circuit rejected the operator's argument and held
that the plan's requirements were enforceable as if they were mandatory
standards. The Court adopted the Board's rationale in Bishop and found
the operator was adequately protected from the imposition of requirements
unilaterally created by the Secretary because a plan had to be adopted
by the operator. The Court stated:
The statute makes clear that the ventilation plan is not formulated by the Secretary, but is "adopted by the operator."
While the plan must also be approved by the Secretary's representative, who may on that account have some significant leverage in
determining its contents, it does not follow that he has anything
close to unrestrained power to impose terms. For even where the
agency representative is adamant in his insistence that certain
conditions be included, the operator retains the option to refuse
to adopt the plan in the form required ••••
The agency's recourse to such a refusal to adopt a particular
plan appears to be invocation of the civil and criminal penalties
of §109, which require an opportunity for public hearing and,
ultimately, appeal to the courts. At such a hearing, the operator
may offer argument as to why certain terms sought to be included
are not proper subjects for coverage in the plan. Because we
believe that the statute offers sound basis for narrowly circumscribing the subject matter of ventilation plans, we conclude that
this opportunity for review is a substantial safeguard against
significant circumvention of the §101 procedures.
(Footnotes omitted; emphasis added) 536 F.2d at 406-407.
Penn Allegh asserts that MSHA's return to the original plan's
requirement breached two duties imposed by the Bishop rationale. First,
MSHA failed to negotiate and discuss the reimposition of the original
plan with Penn Allegh. The Secretary merely informed Penn Allegh that
150 psi-flow would be the enforced provision. Second, MSHA failed to
give Penn Allegh a reasonable time within which it could adopt and file
an amended plan. MSHA issued the citation on the second working day
after the inspector's telephone call. MSHA counters that Penn Allegh
misperceives the negotiation process.
The Secretary argues that after
MSHA rescinded the revision that had been inadvertently approved, "[t]he
duty to initiate straightforward, above-board renegotiation belong[ed]
to the party seeking the revision." MSHA argues that Penn Allegh precluded the possibility of negotiation because of its absolute and
unreasonable refusal to submit to the dust survey or to offer other
adequate assurance that the dust level would remain acceptable.
The important role that ventilation and dust control plans play in
the overall statutory scheme cannot be overstated. Congressional
recognition of the urgent need for adequate ventilation and dust control
in the nation's coal mines is clearly reflected in the legislative

history, as well as in section 303(o)'s requirement that such plans were
to be adopted in the first ninety days following the passage of the 1969
Coal Act. See also Zeigler Coal Co., supra, 536 F.2d at 408-409. Under
section 303(0) and 30 CFR §75.316, after initial implementation the
plans can be reviewed and revised. We hold that ventilation and dust
control plans are continuous in nature; a plan does not expire at the
end of a six month period simply because the parties have failed to
finally resolve a suggested revision. In the present case, in light of
our previous conclusion that the Secretary validly rescinded the mistaken approval of Penn Allegh's revision to the original plan, we
conclude that the original plan remained in effect. This leaves the
parties with the ability, in fact the duty, to negotiate in good faith
over a resolution of the "flow-static" measurement controversy. At the
same time it affords miners the protections of the plan previously
adopted by Penn Allegh and approved by the Secretary. §_/
The only remaining issue is the timing of MSHA's issuance of the
involved citation and order. On Thursday, October 2, 1980, MSHA informed
Penn Allegh by telephone and by a letter that 150 psi-flow would be the
enforced water pressure rather than Penn Allegh's 70 psi provision. On
Monday, October 6th, the citation was issued after the inspector obtained
a reading of 80 psi-flow. On the following day a reading of 110 psiflow was obtained and the 104(b) order was issued. Although the citation
and orders were issued very soon after MSHA discovered its error and
informed Penn Allegh that it no longer deemed the revision to be in
effect, we believe that any questions as to notice and fairness to Penn
Allegh are allayed by Penn Allegh's insistence that it would comply with
the revision, or no plan at all. Thus, the timing of the issuance of
the citation and order is of little significance.
In sum, we conclude that substantial evidence supports the judge's
conclusion that the dust control plan required a water pressure of 150
psi measured under flow conditions; MSHA validly rescinded its mistaken
approv~l of Penn Allegh's revision of this requirement; and the 150 psi
provision validly was enforced against Penn Allegh. For these reasons,
we affirm the judge's decision.

§}

The requirement of good faith negotiations by both parties eliminates
any fear that an operator must forever labor under a provision that has
been adopted and approved. If an operator believes a revision is warranted,
has engaged in a reasonable period of good faith negotiation, and believes
the Secretary has acted in bad faith in refusing to approve the revision,
he can obtain review of the Secretary's action by refusing to comply
with the disputed provision, thus triggering litigation before the
Commission. The present case does not present this situation due to the
apparent lack of good faith negotiation by Penn Allegh over the desired
revision.

2773

Distribution
Ronald S. Cusano, Esq.
Rose, Schmidt, Dixon, Hasley, Whyte & Hardesty
900 Oliver Building
Pittsburgh, PA 15222
Linda Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Harrison Combs, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge Forrest Stewart
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

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

December 22, 1981

CONSOLIDATION COAL COMPANY

Docket Nos. WEVA 80-116-R
WEVA 80-117-R
WEVA 80-118-R

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

This case is remanded to the administrative law judge for further
proceedings consistent with the court's opinion in Consolidation Coal
Company v. Secretary of Labor, No. 80-1862, 4th Cir., October 13, 1981.

2775
81-12-19

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

December 22, 1981

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

Docket Nos. WEVA 79-447-R
WEVA 79-448-R
WEVA 79-449-R
WEVA 79-450-R
WEVA 79-451-R
WEVA 79-452-R

MABEN ENERGY CORPORATION
DECISION
This case arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §801 et seq. (Supp. III 1979). It involves citations
issued for conditionsrelating to the same dam and retent.ion pond that
was the subject of the recent Commission decision in Maben Energy Corp.,
3 FMSHRC 2280 (1981) ("Maben I"). In that case we decided Maben operated
or controlled the dam and pond for purposes of the regulation in issue
and the citation was affirmed. 1/
The instant citations remained pending before the administrative
law judge during the resolution of Maben L '!:._/ Early in this proceeding,
a letter was sent by counsel for Maben to the judge in which it was agreed
that Maben would be bound by the final Commission decision in Maben I unless
"the Commission's decision is adverse to [Maben's] interest ••. and in such
event [Maben] would be bound by the ultimate outcome of a final decision
of the highest court hearing the same, not by the Commission's decision."
In addition, a formal stipulation was filed on October 6, 1980, setting
forth the agreement of the parties that the facts in the instant case are
"identical" to those in Maben I, but with no reference to the outcome of
Maben l
Those two documents comprise the entire evidentiary record before
us.

1/

The regulation cited in Maben I was 30 CFR §77 .216-3(a) which
requires inspection of impoundments by persons owning, operating or
controlling the structure.
'!:_/
The citations at issue in the instant case, which were written
about five months after the citation in Maben I, involve alleged
violations of 30 CFR §§77.216-1 and 77.216(c) for failure to name an
individual responsible for the impoundment and to develop a use plan
for it.

2776

81-12-20

The judge issued his decision in this proceeding shortly after we
issued our opinion in Maben I. He cited our decision in Maben I and
stated that the parties had agreed to be "governed" by it. Accordingly,
he affirmed the instant citations and dismissed the notices of contest
on the basis of that "agreement."
Maben petitioned for review of the judge's decision and we granted
that petition on November 24, 1981. The petition argued that the judge's
decision was "premature" and that Maben had not agreed to be bound by the
Commission decision in Maben I until the question was resolved by the highest
court to hear any appeal. 3/ Maben also raised questions as to the propriety
of findings in Maben I as incorporated in the judge's decision in this case.
We do not agree with the operator that the judge's decision in this
case is "premature." A decision issued by this Commission is binding on
the parties unless and until stayed or overturned by a reviewing court
of appeals. 30 U.S.C. §816(c). The parties may not stipulate to the
contrary and Maben may not otherwise be relieved from the legal effect
of that decision.
It appears, however, that the operator is correct that the parties
did not, as the judge held, stipulate that they would necessarily be
bound by the Commission decision in Maben I. Our reading of the August
1979 letter, which is the only "stipulation" that refers to the outcome
of Maben I, persuades us that the judge misinterpreted the operator's
language. Accordingly, we hold that the judge was in error in basing
his disposition of the case solely on the parties' "agreement" to be
bound by Maben I and we do not adopt that portion of his opinion.
Nevertheless, we affirm the judge as to result. The parties agreed
in the stipulation dated October 6, 1980, that the facts in this case are
identical to those in Maben I. Only the question of the legal effect of
the facts remains at issue here. We decided in Maben 1 that under these
facts, Maben maintained the requisite control to find a violation of the
Act. Accordingly, that point is resolved against Maben in the present
case as well. !!_/

l/

In fact, Maben I has been appealed to the Fourth Circuit where it
is now pending. Maben Energy Corp. v. Secretary Of Labor and Federal
Mine Safety and Health Review Commission, No. 81-2075. This Commission
denied Maben's request for stay of Maben I pending the outcome of the
appeal and on December 9, 1981, the Fourth Circuit also declined to
issue a stay.
!!_/
There being no dispute as to operative facts, no evidentiary
controversy exists which would require us to return this case to the
presiding judge for resolution. Rather, economy and efficiency of
adjudication dictate that the Commission itself apply the previously
established law to the stipulated facts. We anticipate no prejudice to
any party by our action. Cf. Knox County Stone Co., Inc., DENV 79-359PM, November 6, 1981, slip. op. at 4 (approving disposition at review
level in appropriate circumstances).

For the reasons set forth above, the citations are affirmed and
the notices of contest are dismissed.

Commissioner

2778

Distribution
James M. Brown, Esq.
File, Payne, Scherer & Brown
P.O. Drawer L
Beckley, West Virginia 25801
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Gary Melick
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

2779

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

December 31, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. HOPE 76X409
IBMA 77-26

v.
ROYALTY SMOKELESS COAL COMPANY
ORDER

The Secretary of Labor's unopposed motion for voluntary dismissal
is granted.

2780

81-12-26

Administrative Law Judge Decisions

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

DEC 1 1181
WHITE PINE COPPER DIVISION,
COPPER RANGE COMPANY,
Contestant
v.

Contest of Citation
Docket No. LAKE 81-106-RM
White Pine Mine

SECRETARY OF LABOR,
Respondent
UNITED STEEU10RKERS OF AMERICA,
Intervenor
SECRETARY OF LABOR,

Civil Penalty Proceeding
Petitioner
Docket No. LAKE 81-171-M
A.C. No. 20-00371-05037

v.

WHITE PINE COPPER DIVISION,
COPPER RANGE COMPANY,
Respondent

White Pine Mine

UNITED STEELWORKERS OF AMERICA,
Intervenor
DECISION
Appearances:

Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman, Graybill
& Greenlee, Ishpeming, Michigan, for White Pine Copper
Division, Copper Range Co.;
Leo J. McGinn, Esq., Office of the Solicitor, U.S. Department
of Labor, Arlington, Virginia, for Secretary of Labor;
Harry Tuggle, Assistant Safety Director, United Steelworkers
of America, Pittsburgh, Pennsylvania, for United Steelworkers
of America.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This proceeding was commenced on March 12, 1981, when White Pine Copper
Division, Copper Range Company (hereinafter "White Pine") filed a notice of
contest under section lOS(d) of the Federal Mine Safety and Health Act of

2782

1977, 30 U. s.C. § 815(d) (hereinafter "the Act") to contest a citation issued
by the Mine Safety and Health Administration (hereinafter "MSHA") for violation of a mandatory safety standard, 30 C.F.R. § 57-3.20. Thereafter, the
United Steelworkers of America (hereinafter "USWA") intervened in this proceeding and the civil penalty proceeding arising out of this citation was
consolidated with the contest action.
A hearing was held in Houghton, Michigan on June 2-3, 1981. MSHA's
witnesses were Walter Leppanen and William Letzens. White Pine called the
following witnesses: William Carlson, Glenn Scott, Albert Ozanich, David
Charles, Albert Goodreau, Julio Thaler, Joseph Maher, and Jack Parker. The
USWA called the following witnesses: Ed Hocking, Dale Sain, Frank Dove,
Malcolm Penegor, Eugene DeHut, Gordon Seid, Joe Aknisko, and John Cestkowski.
All three parties filed posthearing briefs.
A brief historical review is necessary to place the instant controversy
in its proper perspective. White Pine management believed that no valid
purpose was served by using roof bolts in certain parts of its mine.
Accordingly, it decided to demonstrate that uniform installation of 4 foot
roof bolts on 4 foot centers was not necessary and did not enhance safety.
As White Pine's first initiative in this direction it removed roof bolts from
an area in Unit 56 on February 5, 1980. Two weeks later, an MSHA inspector
issued an imminent danger order pursuant to section 107(a) of the Act. The
validity of this order was litigated before Judge Edwin S. Bernstein. On
January 14, 1981, Judge Bernstein vacated the order and found that an imminent
danger did not exist at the time the order was issued. White Pine Copper
Division v. Secretary, 3 FMSHRC 211 (January 14, 1981). Neither MSHA nor the
USWA petitioned for review of that decision. On February 27, 1981, White
Pine began the next phase of its demonstration program by mining an area in
Unit 56 without using roof bolts or other roof support. Thereupon, the instant
citation was issued on March 3, 1981.
ISSUES
Whether White Pine violated the Act or regulations as charged by MSHA
and, if so, the amount of a civil penalty which should be assessed.
APPLICABLE LAW
30 C.F.R. § 57.3-20 states as follows:
Mandatory. Ground support shall be used if the operating
experience of the mine, or any particular area of the mine,
indicates that it is required. If it is required, support,
including timbering, rock bolting, or other methods shall be
consistent with the nature of the ground and the mining
method used.
Section llO(i) of the Act, 30 U.S.C. § 820(i), provides in pertinent
part as follows:

2783

In assessing civil monetary penalties, the Conunission
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.
STIPULATIONS
The parties stipulated as follows:
The White Pine Mine is an underground copper mine owned and operated by
the Contestant. The mine has products which enter commerce and has operations and products which affect conunerce. The mine is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977. The
Administrative Law Judge has jurisdiction pursuant to section lOS(d) of the
Federal Mine Safety and Health Act of 1977. Walter Leppanen is and was a
duly authorized representative of the Secretary of Labor to represent him at
all times relevant herein as a federal mine inspector.
FINDINGS OF FACT
I find that the evidence of record establishes the following facts:
1. White Pine Mine is a large underground copper mine located at
White Pine, Michigan.
2. Mining is done by the room and pillar method at depths ranging
from 150 feet to 2,100 feet.
3. White Pine has used three different mining configurations:
shale, full column, and upper shale.

parting

4. Underground m~ning began at White Pine in the mid 19SO's. At that
time, the parting shale configuration was used but uniform roof bolting was
not employed. Roof bolting was used in 60 to 70 percent of the area mined
during the 1950's. All areas developed since the 1960's have used uniform
roof bolts except for the area involved in the instant citation.
S. At various times in various areas, White Pine used the following
types of roof bolts: 4 foot mechanical bolts on 4 foot centers; alternating
4 foot and 7 foot bolts; alternating 4 foot and 6 foot bolts; and finally,
4 foot resin roof bolts. Today, the entire mine, except for the area in
controversy here, employs 4 foot resin bolts.
6. White Pine's ground control department monitors movement of the
mine roof or back through use of extensometers, lights and gauges. This

2784

equipment can measure convergence of as little as 1/1000 of an inch.
Flashlights attached to some of this equipment will light up if the ground
converges a tiny fraction of an inch. The purpose of these lights is to
warn miners of roof movement which might indicate instability.
7. On February 12, 1981, White Pine Superintendent, Julio Thaler,
notified MSHA that White Pine intended to mine a drift in Unit 56 without
the use of uniform roof bolts.
8.
drift.

On February 27, 1981, White Pine began to mine the demonstration

9. Approximately three pulls 1/ of 10 feet each had been completed by
March 3, 1981. No roof bolts or other ground control had been installed
in this area.
10. On March 3, 1981, MSHA inspector Walter Leppanen was conducting
a regular health and safety inspection of the White Pine Mine. Before going
underground on that date, he was informed that mining was being performed
in Unit 56 without roof bolts.
11. Inspector Leppanen traveled to the demonstration drift in Unit 56.
He observed that the sandstone roof or back was unsupported for a distance
of approximately 32 feet from the face to the last row of bolts. White Pine
foreman Joseph Lobeck informed the inspector that White Pine did not intend
to install any bolts in the area. The inspector heard a popping and snapping
sound in the roof or back which indicated to him a movement caused by
pressure. He also observed a slip running a distance of about 27 feet
diagonally through the roof. He also heard loose material falling from the
roof to the floor. He saw a 3 foot area from which brown granular material
had fallen from the roof. He saw a discoloration or oily substance along
the edge of the slip for the entire length. Later, he observed a foreman
standing in the area in controversy scaling the loose back in the unbolted
area.
12. On March 3, 1981, Inspector Leppanen issued Citation No. 294190
pursuant to section 104(a) of the Act alleging a violation of 30 C.F.R.
§ 57.3-20 as follows:
"Roof support was not provided in N-94 & W-53
intersection in Unit 56. Prior operating experience of the mine indicates
that roof support is required. Miners were/had been working under the
unsupported roof."
13. The citation was terminated when White Pine abated the condition
by permanently closing the area and posting it against entry.
1/ A pull is the unit or linear advance of each drilling and blasting
cycle.

2785

14.

There had been approximately eight roof fall fatalities at this

mine.
DISCUSSION
Contentions of the Parties
White Pine asserts the following: (1) The mine roof in the cited area
does not require ground control; (2) White Pine's prior operating experience
in parting shale establishes that uniform ground control is not required in
the cited area; and (3) the issuance of the citation constituted a denial
of due process of law. MSHA contends that the operating experience of the
mine requires the use of ground support and the condition of the particular
cited areas indicates a need for ground support. The USWA supports MSHA's
position herein but goes on to assert the novel argument that "it is
psychologically unhealthy to mine at White Pine without roof support even
under the most ideal conditions." USWA Brief at 9.
The merits of this controversy will be discussed in detail infra.
However, White Pine's "due process" and USWA's "psychologically unhealthy"
arguments will be dealt with summarily. White Pine claims that the issuing
inspector failed to consider data proffered by White Pine and that an MSHA
supervisor failed to promptly respond to White Pine's request for advice
concerning the demonstration project. It is not surprising that White Pine
cites no -authority in support of its claim since there is none. i find that
the procedures followed by MSHA concerning the issuance of this citation
afford White Pine the due process of law guaranteed by the Constitution.
The USWA argues that "it is psychologically unhealthy to mine at
White Pine without roof support even under the most ideal conditions."
Resolution of the issue of whether the mental health of miners, absent a
contemporaneous threat to the physical health of miners, falls within the
ambit of the Act must be postponed to another day. Suffice it to say at
this time that the USWA failed to present any probative or credible evidence
of probable impairment of the mental health of the miners due to the cited
condition. Hence, this argument is without merit.
Condition of Roof or Ground in Cited Area
The citation was issued in the demonstration area where White Pine was
attempting to establish that neither roof bolts nor ground support was needed.
The citation does not allege any specific problem with the roof in the
particular area cited. However, MSHA devoted much time at the hearing to
establishing that roof bolts or ground support was needed in the particular
area. It is undisputed that no roof bolts were used for a distance of
approximately 32 feet in the drift in controversy.
While there is a dispute as to the condition of this particular roof,
White Pine's safety engineer, Albert Goodreau, conceded the following: he
heard cracking and popping in the roof; he observed loose on the floor

2786

measuring up to 1 by 5 inches; and there was a 3 inch band of discoloration
extending diagonally across the roof for a distance of 27 feet. MSHA
Inspector Leppanen testified that in addition to the facts conceded by
Mr. Goodreau, he observed a slip in the discolored area which was unstable.
The inspector also observed loose falling from the roof. The miners' representative essentially confirmed the testimony of the inspector.
White Pine's witnesses testified that the condition of the roof in the
cited area was good and that only a slight amount of scaling was necessary.
MSHA witnesses testified that the combination of roof noise, falling loose,
and a slip of considerable length in the roof mandated the use of ground
control in the particular area. I find that the testimony of MSHA's
witnesses was more credible and persuasive than the testimony of Wh-ite Pine's
witnesses. Hence, I accept MSHA' s contention that ground support was
required in this particular area.
while it might be possible to terminate the decision at this point, that
would leave undecided the basic controversy surrounding the entire demonstration project and the substance of the citation, to wit: whether the operating experience of the mine indicates that ground support is required.
Failure to address and resolve this issue would lead to further attempts to
mine without ground support under different roof conditions. I believe that
it is unfortunate that the provisions of 30 C.F.R. § 75.200 do not apply outside of coal mining. Under that regulation, a coal mine operator must adopt
a roof control plan approved by MSHA. Such plans must be reviewed every
6 months. There is no comparable requirement in metal mines such as
White Pine. Thus, there is no formal method by which an operator may obtain
MSHA approval for a roof or ground control plan. This is the second time
within a year that White Pine has litigated its asserted right to employ an
alternative ground support plan. I believe that, without further ado, White
Pine is entitled to an answer to the question of whether the operating
experience of the mine indicates that ground support is required.
Condition of Roof or Ground of Entire Mine
White Pine posits its contention that uniform ground control is not
needed upon the fact that during the 1950's "thousands of lineal feet of mine
drift were mined without the use of any roof bolts whatsoever." White Pine
Brief at 20. Moreover, much of the bolting which was done in those days was
added "after many feet of mining and blasting had been accomplished under
unsupported roof." Ibid. MSHA's objection, that such evidence was irrelevant
to the instant proceeding because there was no federal law applicable to
underground metal mines during the period of time when White Pine Mine was
without ground support, was overruled. However, the weight to be given to
such evidence remains to be decided.
For the past 20 years, White Pine has followed a uniform roof bolting
plan throughout its mine. Previously, roof bolting was used in the majority
of areas mined but not in all of them. Even with roof bolting, White Pine
has a history of approximately eight fatalities due to roof falls. White Pine

2787

presented evidence that the roof in Unit 56 consists of massive sandstone and
that roof bolts do nothing to insure the stability of the roof. Joseph Maher,
White Pine's Director of Mine Planning and Engineering, testified that the
only function of roof bolts in this area was to suspend the immediate roof
from the main roof. On the other hand, MSHA mining engineer, William Lutzens,
testified that, in his opinion, roof control was required throughout the mine
because of factors such as the location of the mine in horizontal bedding,
the presence of square openings rather than arched openings, and the fact that
sandstone rock is not the most competent rock.
The removal of roof bolts was the subject of a prior imminent danger
order which was vacated after a hearing. MSHA's objection to the evidence
concerning this demonstration project was overruled. The evidence on this
matter is subject to different interpretations. White Pine claims that all
of the loose which fell upon the bolt removal was anticipated. Moreover,
White Pine asserts that no material fell above the roof bolt line. MSHA
doubts that White Pine expected some of the roof falls and noted that loose
of up to 2 feet in depth fell after bolt removal. Furthermore, MSHA asserts
that the roof bolting had already accomplished its purpose by the time the
bolts were removed and this demonstration area was not an active production
section which was subject to blasting. I conclude that the roof bolt removal
project and the results thereof are entitled to little weight because of the
failure to connect those results with the instant controversy. In other
words, White Pine failed to establish that the evidence gathered from the
bolt removal project shows that mining without any roof support is as safe
as mining under uniform roof bolts. Likewise, I find that the evidence con-·
cerning convergence data is also entitled to little weight in this proceeding
because it is not connected to predicting when a roof fall will occur. In
fact, Joseph Maher, White Pine's Director of Mine Planning and Engineering,
conceded that even with all of the data and devices for measuring convergence,
White Pine was unable to predict with any precision when a roof fall would
occur. Thus, the methds of measuring convergence and the convergence data
do not establish that roof support is unnecessary.
Returning to the issue of whether the operating experience of the mine
indicates that roof or ground support is required, I am persuaded that the
most relevant evidence on this subject is the uninterrupted 20 year history
of uniform roof bolting. Although the regulation speaks only of the
"operating history" as relevant to the issue of roof or ground control, I
believe that even without any operating history, a new program would be
acceptable if the operator proved that it was just as safe as the prior
program. However, in the instant case, White Pine's evidence fails to meet
that test. I have previously found that the roof in the·cited area included
a slip which was unstable and required bolting. The testimony of Jack Parker,
a self-employed consultant from White Pine, Michigan, is not entitled to much
weight in this proceeding because he appears to be an advocate of "no bolt"
mining rather than an impartial expert. In fact, Mr. Parker was employed by
White Pine from 1961 to 1971 and, during that period of employment, he recommended "no bolt" mining. I find the testimony of MSHA mining engineer William
Lutzen to be more credible. Thus, I conclude that the pertinent operating

2788

history of this mine requires the use of roof bolts in all areas of the mine.
White Pine failed to establish that "no bolt" mining or "bolting as required"
mining would be as safe as uniform bolting. The citation is affirmed and
White Pine's contest is denied.
Civil Penalty
MSHA proposed a civil penalty of $500 for the violation in this case.
Although White Pine failed in its contest of this citation, I find that it
was acting in good faith and was not negligent in choosing to eliminate the
need for ground support in this manner. However, the gravity of this violation was serious because miners were exposed to severe injury or death in
the event of a roof fall. The preponderance of the evidence further establishes that without ground support in the affected area, a roof fall was
likely.
Based upon all the evidence of record and the criteria set forth in
section llO(i) of the Act, I conclude that a civil penalty of $250 should be
imposed for the violation found to have occurred.
CONCLUSIONS OF LAW
1. The administrative law judge has jurisdiction over the parties and
subject matter of this proceeding.
2.

White Pine and its White Pine Mine are subject to the Act.

3. The operating experience of the White Pine Mine indicates that
ground or roof support is required throughout the mine.
4. The condition of the unsupported ground or roof in the area cited
herein indicated that the area required ground or roof support.
5. Hhite Pine's evidence concerning certain areas of the mine which
were mined in the 1950's without ground or roof support is entitled to
little weight.
6. White Pine's evidence concerning the demonstration roof bolt removal
project in Unit 56 is entitled to little weight.
7. Citation No. 294190 issued on March 3, 1981, charging a violation
of mandatory safety standard 30 C.F.R. § 57.3-20 is affirmed.
8. Pursuant to section llO(i) of the Act, a civil penalty in the amount
of $250 is assessed against White Pine.
ORDER
WHEREFORE IT IS ORDERED that White Pine's contest of Citation No. 294190
is DENIED and Citation No. 294190 is APPROVED.

2789

IT IS FURTHER ORDERED that White Pine pay the sum of $250 within
30 days of the date of this decision as a civil penalty for the violation
of 30 C.F.R. § 57.3-20.

Distribution Certified Mail:
Ronald E. Greenlee, Esq., Clancey,' Hansen, Chilman, Graybill & Greenlee,
P.C., Peninsula Bank Building, Ishpeming, MI 49849
Leo McGinn, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203
John Cestkowski, President Local 5024, U.S.W.A., Box 101,
Watersmeet, MI 49969
Harry Tuggle, Ass't Safety Director, U.S.W.A. 115 Gateway Center,
Pittsburgh, PA 15222
Ernest Ronn, 706 Chippewa Square, Marquette, MI 49855
Sylvia Guisfredi, 80 Elm St., White Pine, MI 49971
Linus Wampler, District Director II 33 U.S.W.A., 609 Providence Bldg.,
Duluth, MN 55802
Gerald A. Hudson, Esq., Office of the Solicitor, U.S. Department of Labor,
231 W. Lafayette, Room 657, Detroit, MI 48226

2790

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

DEC 7(8
SECRETARY OF LABOR,
MINE SAFETY AND HEAtTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. PITT 78-97-P
Allegheny No. 2 Mine

v.
PENN ALLEGH COAL CO., INC.,
Respondent
DECISION AND ORDER
After remand, this matter is before me on the parties' motion to
approve settlement of this much protracted litigation at a reduction
in the penalty from $106 to $25 .. 00.
While it appears that the Commission was without authority or
jurisdiction to consider the issue it found dispositive, namely the
claimed unavailability of the "diminution of. safety" defense in an
enforcement proceeding, there is no necessity to pursue the consequences
of that further in this proceeding. l/
Accordingly, it is ORDERED that for good cause shown the motion
to approve settlement be, and hereby is, GRANTED. It is FURTHER ORDERED
that the operator pay the penalty
upon, $25.00, on or before
Monday, December 28, 1981.

Administrative

l/

Under the Mine Safety Law the Commission does not have de novo review
powers. Section 113(d)(2)(iii)(A) and (B) of the Act preclude~view of
any issue not raised before the administrative law judge or covered by
the Order Directing Review. In this case the record shows and the
Commission's decision admits that the issue concerning the "diminution
of safety" defense was raised by the Commission ~ sponte and that
neither the trial judge nor the parties were afforded an opportunity to
pass on the matter. Compare, Brown & Root, Inc. v. Marshall, __ F.2d
, 1981 OSHD Par. 25,741, p. 32110 (5th Cir. 1981); McGowan v. Marshall
604 F.2d 885, 889 (5th Cir. 1979).
-

2791

Distribution:
Stephen P. Kramer, Esq. U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Glenn E. Bost, Esq., Thorp, Reed & Armstrong, 2900 Grant Bldg., Pittsburgh,
PA 15219 (Certified Mail)

.. --. -

..

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..,

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-.. ';.,.

.·_, :'...-

2792
......~·.

.,

:,#··'

.

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

LOCAL UNION 2250, DISTRICT 12,
UNITED MINE WORKERS OF
AMERICA (UMWA),
Complainant

Complaint for Compensation
Docket No. LAKE 82-1-C
Mine No. 25

v.
OLD BEN COAL COMPANY,
Respondent
DECISION
This matter came on for oral argument on the parties' cross
motions for summary disposition on December 2, 1981, in Falls Church,
Virginia. Based on an independent evaluation and de novo review of the
circumstances I find there is no need for an evidentiary hearing; that
there is no genuine issue as to any material fact; and that as a matter
of law the Union is entitled to recover on behalf of the seventy-four
claimant miners short-term compensation claimed under section 111 of
the Act, 30 U.S.C. § 821.
The facts which give rise to this claim are undisputed. On
Saturday, August 1, 1981, at approximately 7:30 a.m. a fire occurred
in the "A" shaft at the No. 25 mine. The miners were immediately
withdrawn from the mine, and management began efforts to extinguish
the fire. When the Federal inspector, Jessie Melvin, arrived at the
mine sometime after 8:15 a.m., he issued a 103(k) withdrawal Order No.
1117966 requiring that only persons necessary to investigate the fire
scene and conduct an air examination of the immediate vacinity should
enter the mine. At 12:45 p.m. the order was modified to allow rehabilitation
of the accident area and to resume normal operations at the mine.
The afternoon shift (4 p.m. - 12 a.m.) worked their full shift that day.
The morning shift was paid four hours reporting pay pursuant to the
UMWA contract.
The union claims that under Section 111 of the Act the miners are
entitled to compensation for an additional four hours pay for the
balance of the shift. 1.f The operator has raised as a defense the

!/

Sec. 111 reads in part, "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 compensat:ipn by the operator at their regular ·
·rates of pay
the period they are. idled, but for not more than the
balance of such shift • . • " Tliis'order was issued under Section 103(k)
of the-Act.

for

2793

claim that where the miners were immediately withdrawn from the mine
before the 103(k) order was written it is not in accord with the
policy of the Act to award compensation. !:../
In the legislative history accompanying section 111 Congress
made clear that " • . • miners should not lose pay because of the operator's
violation, or because of an imminent danger which was totally outside
their control." (Emphasis added). S. Rep. No. 95-181, 95th Cong. 1st
Sess. 46-47 (1977), in Legislative History of the Federal Mine Safety
and Health Act of 1977, at 634-635. This case presents a situation in
which an order was written to facilitate an investigation of an immin~nt
danger outside the miners control. The prior Interior Board of Mine
Operations Appeals, the Commission and its judges have consistently
awarded compensation in cases where the miners had been withdrawn prior to
the issuance of an order. Peabody Coal Co. v. Mine Workers, 1 FMSHRC
1785 (November 14, 1979); UMWA v. Consolidation Coal Co., 1 MSHC 1668
(1978); UMWA v. Consolidation Coal Co., 1 MSHC 1674 (1978); UMWA v.
Clinchfi~Coal Co., 1 IBMA 33 (May 4, 1971); Roscoe Page v~lley
Camp Coal Co., 6 IBMA 1 (January 28, 1976).
Unlike UMWA v. Eastern Associated Coal Corp., 3 FMSHRC 1175
(May 11, 1981), where the miners had withdrawn prior to the issuance of
an order in observation of a contractual memorial period, the miners
here were idled by the same condition which led to the issuance of the
order, i.e., the mine fire in shaft A on August 1, 1981. There was,
therefore, a clear "nexus between the underlying reasons for the idlement
and pay loss and the reasons for the order". Id. at 1178. I conclude
that the existence of the "exigent or emergencyconditions" created by
the mine fire was the proximate and effective occasion for issuance of
the closure order. Id. at 1178.
While the order was modified to permit operations to clear the mine
of smoke and to conduct the necessary preshift operations at 12:45, the
record shows these actions were not accomplished until just after 4:00 p.m.
The period of idlement that was occasioned by the condition that caused.the
order to issue was not terminated until that time. For this reason,
the miners are entitled to be compensated for an additional four hours,
the balance of· their shift.
']} At oral argument, counsel for the operator suggested voluntary withdrawal
of the miners on the midnight shift be treated as the effective time of
idlement for the purposes of statutory entitlement and that the four
hours reporting pay for which the next shift was paid be considered as
payment for the four hours to which the "next working shift" would be
entitled under the second sentence of section 111. This afterthought
contention is obviously without merit under the uncontested facts of this
case, and would not affect the right of recovery of the morning shift
for four hours compensation in any event. See, Local 1374, UMWA v. Beatrice
Pocahontas Co., 3 FMSHRC 2004 (August 27, 1981); Local 5869, UMWA v.
Youngstown Mines Corp., 1 FMSHRC 990 (August 15, 1979).

2794

It is ·in accord with the "make whole" policy of the Act to award
interest on the sums due the miners from the date of the idlement until
the date of payment. UMWA v. Youngstown Mines Corp., 1 FMSHRC 990
(August 14, 1979); UMWA v. Kanawha Coal Co., 1 FMSHRC 1299 (September 4,
1979); Peabody Coal--;:-UMWA, 1 FMSHRC 1785 (November 1979). I find,
therefore, that the requested rate of interest, 12%, is reasonable.
UMWA v. Beatrice Pocahontas Co., 3 FMSHRC 2004, 2013 (August 27, 1981);
Johnny Howard v. Martin-Marietta Corp., 3 FMSHRC 1876 (July 31, 1981).
The Union's request for an award of attorney fees is without merit.
The statute, of course, does not provide for an award of attorney fees
in compensation cases. UMW v. Tansy Beth Mining Company, 3 FMSHRC 466,
471 (February 19, 1981); UMW v. Royal Coal Company, 3 FMSHRC 1738,
1747-48 (July 7, 1981). The Union seeks to bring itself within the
exception to the American Rule. That exception permits an award of
attorney fees in the absence of statutory authority where a party has
acted in bad faith, vexatiously, wantonly or for oppressive reasons.
Roadway Express v. Piper, 447 U.S. 752 (1980).
While the operator's denial of total liability in this matter may
be viewed as unwarranted, if not frivolous, in view of the extensive
case law,it must be remembered that it was not until November 18, 1981,
that the Union filed an Amended Complaint deleting its claim for
compensation for the evening shift which might also be viewed as ·
vexatious. Furthermore, the Union had the burden of proof and, as
the record shows, it was, with an assist from the trial judge, able
to discover the facts necessary to sustain that burden with a minimum
of time, trouble, and expense. The operator's resistance to the Union's
interrogatories while obviously very annoying to Union counsel was
justified to the extent the interrogatories covered a subject matter
later found to be without the scope of the Union's claim. The record
discloses nothing more than that the operator, while somewhat intransigent
in the face of the Union's interrogatories, furnished the information
necessary to resolve the factual issues promptly and in good faith in
response to the trial judge's pretrial order. This disclosure mooted
the Union's motion to compel answers and enabled the Union to file its
cross motion for summary judgment.
While the hostility between counsel that emanates from the record
is regrettable, it seems a necessary byproduct of the industry's
generally poor labor relations. '}_/ In any event, the law does not
recognize the ordinary and necessary costs of litigation, however
unwarranted and vexatious they may appear to the parties, as grounds
for an award of costs or attorney fees. As Justice Powell noted in
Roadway Express:

1/

One would hope that professionals would eschew use of some of the
pettifogging tactics observed, such as respondent's denial of receipt
of the order at issue because counsel for the Union had inadvertently
misstated the proper number.

2795

Due to sloth, inattention, or desire to seize tactical
advantage, lawyers have long indulged in dilatory
practices. Cf. Dickens, Bleak House 205 (1948). A
number of factors legitimately may lengthen a lawsuit,
and the parties themselves may cause some of the delays.
Nevertheless, many actions are extended unnecessarily
by lawyers who exploit or abuse judicial procedures,
especially the liberal rules for discovery • . • The
glacial pace of much litigation breeds frustration with
the federal courts and, ultimately, disrespect for the
law. 447 U.S. at 757, n. 4.
The same problems plague the administrative process, as I have so often
pointed out. The problem is what sanctions may be imposed on lawyers
who abuse the administrative process and unreasonably protract administrative
proceedings. In Roadway Express, the Supreme Court held that under
Rule 37(b) of the F.R.C.P., which, I believe, apply to Commission
proceedings, "both parties and counsel may be held personally liable
for expenses 'including attorney's fees,' caused by the failure to comply
with discovery orders." 447 U.S. at 763. The Court also held that the
courts, and presumably administrative adjudicative agencies, have,
after notice and an opportunity for hearing, inherent power to levy
sanctions against litigants and counsel who "willfully abuse judicial
processes." 447 U.S. 766.
The record here fails to show that either party was put to any added
expense to prove facts that the other should have admitted or that there
was any willful abuse of the administrative process. Only the usual
"sloth, inattention and desire to seize tactical advantage" that
characterizes our vaunted adversary system.
Accordingly, complainant's Motion for Summary Decision is GRANTED.
It is ORDERED that the operator forthwith pay the sums agreed upon to
the individuals listed in the Appendix attached hereto plus 12% interest
from August 1, 1981 to the date of payment, and that subject to payment
the captioned matter be DISMISSED.
/}

(IL ·.

~-

Kenned
Administrative Law Judge

Distribution:
Robert J. Araujo, Esq., Old Ben Coal Company, 69 West Washington,
Room 700, Chicago, IL 60602 (Certified Mail)
Joyce Hanula, Esq., UMWA, 900 15th St., NW, Washington, DC 30005
(Certified Mail)

2796

APPENDIX A
NAME

AMOUNT PAID

Larry J. Barton
Larry Wharton
James D. Moore
Dwight Spiller
James D. Cook
Frank W. Maynor
Carl Brannan
Franklin Abbott
Ronald D. Cullum
David B. Cullum
Vincent Baker
Gary A. Hill
Bob J. Johnson
Jerry C. Pigg
Maurice Hill
Ken W. Cochrum
Duglas R. Hitt
Kenneth L. Hargis
Frank Varis
Marvin Eberhart
Randall Roberts
Phil Grosshenrich
Donald W. Snyder
Donald Herring
Richard Knapp
Charles Laurenti
Lawrence Bragg
Jeff S. Davidson
Randy Spreitler
James R. Allen
Ralph L. House
Stephen Reese
Ron Tate
Joseph Ruzich
C. Dean Haseker
Kevin Rudolph
Bill E. Mueller
Michael Merrett
Robert Smith
Roger Melvin
Mike Durkota
Gary Beavers
Gary D. Mueller
Ronald Niblett
George Willard
Steven L. Tolbert
Gary W. Kelton

$

2797

70.59
70.59
70.59
70.59
70.59
70.59
70.59
70.59
70.59
70.59
70.59
70.59
70.59
70.59
70.59
70.59
70.59
70.59
64.62
64.19
68.16
68.16
68.16
68.16
68.16
68.16
68 .• 16
68.16
68.16
70.59
70.59
70.59
70.59
68.16
70.59
70.59
68.16
70.59
70.59
70.59
70.59
70.59
70.59
65.96
68.16
68.16
68.16

APPENDIX A (cont.)

Page 2.
NAME

AMOUNT PAID

Floyd Smith
Betty Tennison
Troy E. Colp, Jr.
Darryl Rendleman
Randy K. Evans
Robert Chamness
Stella Powers
Greggory Collins
Vern L. Rodgers
Pete Golio
O. Joe Tasky
Lyndell Kelley
Obe Roberts
Terry L. Ollis
Freddie Coyser
Daryl L. Melvin
Donald Richerson
Michael Grant
Ronald Rowe
James Wagner
Dale Rentfro
Lloyd Wilburn
Greg Sloan
Frank R. Hess
T. Scott Williams
Jaceson K. Wall
Floyd S. Rotramel

$ 65.96
65.96
65.96
64.19
64.19
64.19
64.19
64.19
64.19
64.19
65.96
65.96
65.96
65.96
65.96
65.96
64.19
64.19
64.19
64.19
64.19
64.19
64.19
64.19
64.19
64.19
65.96

2798

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

DEC 9\9

Civil Penalty Proceeding

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

Docket No. LAKE 81-73-M
A/O No. 11-01098-05001

v.
Baugh Pit & Mill
ELBERT BAUGH EXCAVATING, INC.,
Respondent
DECISION
Appearances:

Miguel J. Carmona, Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Don C. Hammer, Esq., Hayes, Schneider, Hammer & Miles,
Ltd., Bloomington, Illinois, for Respondent.

Before:

Judge Charles C. Moore, Jr.

On October 15, 1980, Inspector Henson issued Citation No. 049957
alleging a violation of 30 C.F.R. § 56.9-22 because "the elevated roads
around the top of the pit walls were not provided with berms." Respondent
operates a gravel pit which is more or less rectangular. The east-west
road cited is at the southern end of the pit and the north-south road
cited is at the eastern edge of the pit. The inspector thought that 300
feet of the east-west road needed berms and that 200 feet of the northsouth road needed them.
The mine is developing toward the east, and the western edge of the
pit is being filled in as the mine advances. The north-south road is
therefore one which moves eastward as the mine is advanced. When the
overburden is stripped on the eastern edge of the pit, it creates a
drop-off of some 8 to 10 feet and a bench is created, but when the
gravel is later taken out, the bench disappears and the drop-off is in
the neighborhood of 20 to 25 feet. Respondent maintains that its roadway running north and south is always 60 feet from the edge of the pit
and that the roadway advances eastward as the stockpiles, sandpiles, and
gravel piles advance in that direction. The Government inspector saw no
vehicles near this edge of the pit but he did see tire tracks which
indicated to him that vehicles had been driven near the edge of the
drop-off. Respondent's response is that these were old tire tracks
having been made ba~k when the road was in that location and when the
edge of the pit was farther west. It maintains that there is no reason
for any of its vehicles to be closer than 60 feet from the edge of the
drop-off and that that edge is not a road.

2799

I find Respondent's position persuasive insofar as the north-south
road goes. If it were a bench with a highwall on one side and a dropoff on the other, 80 or 90 feet wide, I might well hold that the entire
plateau was a roadway, but where there is no evidence that equipment had
to turn around in the area and the route that the equipment was required
to travel was never closer than 60 feet from the drop-off, I hold that
the roadway did not extend over to the edge of the pit. There is no
requirement that pit walls be bermed. The requirement is only that
elevated roadways used for loading, hauling, and dumping be bermed and
I am holding, in the circumstances, that the north-south road was not a
roadway which was elevated so as to require berms.
The east-west road is a permanent road used by both the mine and
the farmer who owns the land to the south of that road. While the
primary use of this east-west road is not related to loading, hauling,
or dumping, it is occasionally used for that purpose and, in my opinion,
it is subject to the berm standard. This road, or at least that part of
it that Respondent contends is the road, is separated from the south
edge of the pit by about 10 feet. There may be grass or weeds in this
10-foot strip but it is level ground and I hold that it is part of the
road. If it is part of the road, then it is elevated and requires
berms. '!:._/ I am not sure where the line should be drawn as to how close
the used part of the roadway needs to be to the drop-off so that it can
be considered an elevated roadway, but I think driving within 10 feet of
such a drop-off is sufficiently dangerous that the area should be considered an elevated roadway. The fact that Respondent does not own the
road is not controlling. (See section 3(h)(l) of the Federal Mine
Safety and Health Act of 1977).
I therefore find that the inspector was correct in issuing the
citation for the east-west roadway but incorrect for issuing it as to
the north-south roadway. He issued only one citation and since there
was justification insofar as the east-west road was concerned, I affirm
the citation. In my opinion, the negligence here was small. The company
is a small company and there was good faith abatement. Gravity is high
because a 10-foot deviation in the route could have caused a serious
injury. There is no history of prior violations. Irt fact, in the last
4 years there have been some eight inspections with no citations issued.
In the circumstances, the Assessment Office thought $38 was an appropriate
penalty. To me, that seems entirely too low an assessment; but in the
circumstances of this case where Respondent has won half of this case, I
do not feel it would be fair to raise the proposed assessment. It would
be like punishing Respondent for daring to challenge the propriety of
the citation. On the other hand, I see no reason to cut the penalty in
half just because I agree with Respondent as to the north-south road. A
penalty of $38 will therefore be assessed.

*I

I happened to hear the first non-coal case under the Federal Mine
Safety and Health Act of 1977, and it involved berms. Cleveland Cliffs
Iron Company v. Secretary of Labor, VINC 78-300-M (Sept. 8, 1978). I am
attaching a copy of that decision and I adopt the discussion of the berm
standard contained therein.

2800

ORDER
Respondent is therefore ORDERED to pay to MSHA, within 30 days, a
civil penalty of $38.

~f.J/l~~·

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

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department
of Labor, 230 South Dearborn.Street, 8th Floor, Chicago, IL 60604
(Certified Mail)
Don C. Hammer, Esq., Hayes, Schneider, Hammer & Miles, Ltd., 202 N.
Center, P. 0. Box 3067, Bloomington, IL 61701 (Certified Mail)

2801

ATTACHMENT
FEDERAL rt.11NE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

September 8, 1978
CLEVELAND CLIFFS IRON COMPANY,

Application for Review

Applic~nt

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

Docket No. VINC 78-300-M
Order No. 286165
March 20, 1978
Empire Mine

DECISION
Appearances:

Ronald E. Greenlee, Esq., Clancey, Hansen, Davidson,
Chilman & Graybill, Ishpeming, Michigan, for Applicant;
David F. Barbour, Esq., Office of the Solicitor, Department of Labor, for Respondent;
Paul Gravedoni, Local Union #4950, United Steel Workers
of America, Negaunee, Michigan.

Before:

Administrative Law Judge Moore

This is the first noncoal case filed and heard under the new
Act 1/ but it involves the old safety standard requiring berms or
guards published at 30 CFR 55.9-22 under section 55.9 entitled
"Loading, Hauling, Dumping." On page 254 of Volume 30 of the Code
of Federal Regulations as revised July 1, 1977, the standard i-n~
question is designated section 155.9-22 but since it is preceded
by 55.9-21 and succeeded by 55.9-23, I assume the numbering of the
standard is a typographical error. In any event, it provides:
Mandatory. Berms or guards shall be provided on the
outer bank of elevated roadways.
The standards applicable to surface coal mines and surface areas
of underground coal mines have an identical provision although with
a somewhat different heading at 30 CFR 77.1605(k).
Withdrawal Order No. 286165, which alleges a violation of 30 CFR
55.9-22, was issued on March 20, 1978. This order was based on Citation No. 286163 which was issued on March 16, 1978. The citation and
withdrawal order referred to the following conditions:

1/ The Federal Mine Safety and Health Act of 1977, P.L. 95-164,
91 Stat. 1290, which supersedes the 1969 Act.

2802

Berms or guards were not provided along either side
of the elevated pipeline roadway from the laydown area,
approximately 600' south to the end of the existing roadway.
Vehicles of various types up to and including 120 ton haulage
trucks were used on the roadway.
A hearing was held on the merits on May 23, 1978, in Ishpeming,
Michigan. The evidence pertaining to the Application for Review
and also the Civil Penalty Case stemming from Withdrawal Order
No. 286165 was presented in this proceeding by stipulation of the
parties.
While the facts in the instant case are quite clear, the applicability of the regulation to those facts is not at all clear. The
road in question is under construction (Tr. 52), is elevated in some
areas (Tr. 32, 51) and is approximately 100 feet wide (Tr. 26). When
completed it will be used to carry a tailings pipe to a tailings dump
and as an access road to the pipe for repair and maintenance purposes
(Tr. 114). At the present time, however, or at least until the order
was issued, it was a road under construction and the operator was
constructing it by having trucks haul rock and dirt along the road,
dumping them over the end and then having a bulldozer smooth the
surface (Tr. 58), I visited the site of the alleged violation and
in my opinion the roadway in that area was elevated approximately
40 feet above the surrounding terrain. In fact, on one side of the
road it was about treetop level. The banks were constructed of rock
at an angle sharper than 45 degrees, probably closer to 60 degrees.
There is therefore no question but that the road is elevated and
that it has steep banks which would involve an extreme hazard if
a truck were to go over the side. The questions are whether the
road was used for "loading, hauling, dumping" and the meaning of
the term "outer bank" in the regulation,
I disagree with MSHA's position that all roads are haulage roads
and thus require berms when they are elevated (Tr. 64, 74). The standard is restricted to roads where either loading, hauling or dumping
is taking place (30 CFR 55.9). On the other hand I cannot agree with
the contentions of Applicant's witness Joseph Crites, the mine
manager, to the effect that only ore haulage constitutes "haulage"
(Tr. 123, 124, 130). The trucks involved in building this road were
hauling rock and dumping it over the edge and I do not see how I
could possibly find that this road, at least while it is under
construction, is not used for hauling and dumping.
If this road is constructed and used eventually as a pipeline
road as described by the witnesses and depicted in one of the
exhibits (App. Exh. 1, Tr. 112, 114, 119), it may not be involved in
hauling, loading, or dumping and the standard in question, unless it
is amended may not require berms. The necessity of berms will depend
on the facts. I see no logical reason for providing less protection

2803

to the users of an elevated road .1erely because it is no longer used
for hauling, dumping or loading, but I do not promulgate the standards. But in any event, the road while being constructed, is
covered by the standard and in its elevated portions requires berms
"on the outer bank."
The use of the term "outer bank" in the regulation indicates
that the drafters were thinking of a road elevated by virtue of the
fact that it was going"up the side of a mountain or other elevated
topography so that one side of the road would be next to the mountain and the other side, the outer bank, would be the only place
where there was a danger of driving over the edge. With that type
of road in mind, the outer bank is obviously the only place where
berms would be necessary to protect the vehicle from leaving the
road. But while the drafters must have been thinking of that type
of road they did not so restrict the stand~rd, because it applies
to all elevated roadways used in loading, hauling or dumping. And
while a curved road, which is elevated, might be" described as having
an outer bank and inner bank, a relatively straight road such as the
one involved in this case has no outer or inner banks. But it nevertheless has banks.
Inasmuch as it is the elevation which creates the hazard that
berms are designed to alleviate, the intent of the regulation must
be to require those berms wherever there is a hazard created by the
elevation. Therefore, the term "outer bank" means whichever bank
is hazardous because of the elevation, and if both sides of the
road present a hazard of rolling do~m a steep embankment, then both
sides of the roads are required to have berms.
I find that the road in question, or at least the elevated portions thereof, is required to have berms as long as it is used for
hauling and dumping. I therefore affirm the citation and order
issued by the inspector.
In affirming the citation and order, I am not accepting MSHA's
position that the regulation requires that berms be as high as the
midaxle on the biggest piece of equipment which uses the road (Tr.
36). That position raay or may not be reasonable but there was no
evidence presented which would allow me to decide the issue. Since
it uas not contested, I am assuming that the piles of rocks that
existed on the sides of the road in question were insufficient and
that it was therefore proper for the HSHA inspector to issue his
citation and order on the ground that the berms cequired by the
regulations did not exist. I cannot decide the appropriate height
required merely on the basis of the written publications of :HSHA
which are referred to as "applications" in the testimony and in
one of the exhibits (Tr. 36, Govt. Exh. #3). The decision here is
that berms are required on the road in question and the assumption,
because of the absence of a challenge, is that such piles of rocks
C;lS did exist did not constitute the required berms.

28Qil

Inasmuch as the evidence normally associated with a civil penalty case was, by agreement of the parties, presented in this case
so that only one hearing and decision would be necessary to decide
all issues, I find that the company is large, that no penalty
assessed will affect its ability to continue in business, that the
violation could contribute to serious injury but that in view of
the doubts about the requirement of the regulation very little
negligence was involved. The operator has no history of prior
violations and insofar as "the safety of the miners is concerned
ceasing construction of the road had the same effect as good faith
compliance because it eliminated the possibility of injury to a
miner. In fact, ceasing construction was even more to the interest of the miner than rapid compliance since the berms of the height
which MSHA considers necessary would not stop a runaway coal truck,
but at best, might slow it down in order to give the driver sufficient time to jump (Tr. 99).
In the circumstances I find that a penalty of $·200 is
appropriate.
ORDER
It is therefore ORDERED that Cleveland Cliffs Iron Company,
within 30 days of the issuance of this decision, pay to the Secretary of Labor a civil penalty in the amount of $200.
It is further ORDERED that the citation and o:i:der of withdrawal
are AFFIRMED.

~f.1/7~~.

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

Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman & Graybill,
P.C., Law Offices, Peninsula Bank Building, Ishpeming, MI 49849
David F. Barbour, Esq., Mine Safety and Health Administration,
Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203
Marco D. Vestich, Assistant to Director, Safety and Health Dept.,
United Steelworkers of America, Five Gateway Center,
Pittsburgh, PA 15222
Mr. Paul Gravedoni, President, Union Local #4950, United
Steelworkers of America, 936 Baldwin Street, Negaunee, MI 49866
Acting Administrator, Mine Safety and Health Administratio~, U,S.
Department of Labor
Standard Distribution

··2805

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

DEC 9 9Jl

Civil Penalty Proceeding

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

Docket No. LAKE 81-117-M
A/O No. 33-00161-05011F

v.
Fairborn Plant Mine
SOUTHWESTERN PORTLAND CEMENT,
COMPANY,
Respondent
DECISION
The Secretary has filed a motion to withdraw its penalty proposal
and dismiss this case. His motion is not filed because there is some
infirmity in the case, but because Respondent has tendered the full
amount of the proposed assessment and "withdrew its Notice of Contest of
the Civil Penalty . • • • " The Secretary relies on the Commission's
decision in Secretary of Labor v. Mettiki Coal Corp., Docket No. YORK
80-140 (Oct. 16, 1981).
I am not sure what the Commission intended by its Mettiki opinion,
but there are clearly some things that it did not intend. It did not
intend to indicate that the fact that the amount of the penalty the
Respondent proposed to pay was the same as the "proposed assessment" was
of great significance. And it did not hold that the parties could
circumvent the Commission's settlement procedures by trying to accomplish by motion to withdraw what they could not do by a motion to approve
settlement. Regardless of the form, this is in essence a settlement and
the same standards apply.
In the instant case there was a fatal accident but it appears from
the special assessment and the accident report that Respondent was in no
way responsible. It appears to be a "no fault" violation and the nominal
$200 assessment seems reasonable. I would have approved this amount if
the motion had been for settlement approval and I will approve it by
granting the motion.
The motion to withdraw is granted and the case is DISMISSED.

~e
?noo4P,.
Charles C. Moore, Jr.
'/
Administrative Law Judge
Distribution:
Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department of
Labor, 881 Federal Office Building, 1240 East Ninth St., Cleveland, OH
44199 (Certified Mail)
Ronald E. Meisburg, Esq., Smith, Heenan, Althen & Zanolli, 1110 Vermont
Avenue, NW., Washington, D.C. 20005 (Certified Mail)

28.06

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

DEC 15 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINSTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. WEVA 81-495
A.O. No. 46-03092...g~g21
0308 f
Beckley Mine

v.
BECKLEY COAL MINING CO.,
Respondent

DECISION AND ORDER
For the reasons set forth in my interim decision of November 24,
1981, a copy of which is attached hereto and incorporated herein,
the parties' amended motion to approve settlement in this matter in the
total amount of $660 is GRANTED. Accordingly, it is ORDERED that on or
before Thursday, December 31, 1981, the operator pay the amount of the
penalty agreed upon, •$660, and that sub' t to payment the captioned
matter be DISMISSED.

Joseph B. Kenne y
Administrative Law
Distribution:
Harold S. Albertson, Jr., Esq., Hall, Albertson & Jones, Box 1989,
Charleston, WV 25327 (Certified Mail)
David E. Street, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market St., Philadelphia, PA 19104 (Certified Mail)

280?

ATTACHMENT TO FINAL DECISION DATED DECEMBER 15, 1981.

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

22041

November 24, 1981
Civil Penalty Proceeding

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

Docket No. WEVA 81-495
A.O. No. 46-03092 93981
0308 I

v.

Beckley Mine

BECKLEY COAL MINING CO.,
Respondent
INTERIM DECISION AND ORDER
The parties move for approval of a settlement at 100% of the
amount initially assessed for the two serious violations of the
ventilation standards charged, namely $320.
Keeping line curtain within 10 feet of the working face at all
times is, admittedly,•a difficult requirement; checking for the presence
of a dangerous amount of methane before energizing electric face
equipment at a working face is not. Furthermore, line curtain
violations that vary up to 10 feet from the norm are not exceptionally
hazardous as they are unlikely to trigger a fire or explosion and are
easily detected. Detection of a failure to make a methane check is,
on the other hand, almost fortuituous. This is because there is no
requirement that a record of these checks be made or entered in the onshif t or any other permanent report.
It is not surprising, therefore, that there were 25 previous
violations of the line curtain requirement and only one of the methane
check requirement during the preceding 24 months.
Because the latter requirement is so vital to safety, so difficult
to detect and may result in what amounts to reckless endangerment, I
find the amount proposed for settlement of this violation is insufficient
to deter future violations and ensure voluntary compliance. It is my
considered judgment that this violation, if proved, warrants the
imposition of a penalty of $500, not the $160 proposed.
Accordingly, it is ORDERED:
1.

That the motion to approve settlement be, and hereby
is, GRANTED as to the line curtain violation and
DENIED as to the methane check violation.

2808

2.

That the operator pay the amount of the penalty agreed
upon and approved for the line curtain violation, $160,
on or before Friday, December 4, 1981.

3.

That unless on or before Friday, December 4, 1981, the
parties amend their motion to approve settlement consistent with the views expressed herein, the requirements
of the Pretrial Order of October 2, 1981 are reinstated
as to the methane check violation, 30 C.F.R. 75.307 with
compliance due as to Part A on Decem er 18, 1981 and
Part B on January 4, 1982.

Joseph B. Kennedy
Administrative Law
Distribution:
Harold S. Albertson, Jr., Esq., Hall, Albertson & Jones, Box 1989,
Charleston, WV 253~7 (Certified Mail)
David E. Street, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market ST., Philadelphia, PA 19104 (Certified Mail)

2809

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

DEC 16 1981
Civil Penalty Proceedings

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

Docket No. PENN 81-154
A.O. No. 36-02581-03043
Docket No. PENN 81-183
A.O. No. 36-02581-03044

v.
PENN ALLEGH COAL CO., INC.,
Respondent

Allegheny No. 2 Mine
ORDER

Counsel for the Secretary has filed a motion for approval of a
settlement agreement in the amount of $1400, 48% of the amount originally
assessed for the seven citations at issue. As grounds for 'this
reduction the Secretary cites the respondent's allegedly mistaken
reliance on the April 7, 1978 decision of the Administrative Law Judge
declaring the cited standard null, void and unenforceable. That
decision has been reversed by the Commission. 1/ In addition, the
respondent is now participating in a program to retrofit its equipment
with cabs or canopies.
In light of the recent Commission decision holding that the
defense of diminution of safety is unavailable where the operator has not
filed a prior petition for modification, regardless of the danger
enforcement of the standard may present to the miners, '.!:_/ the defense
raised by the operator has been foreclosed. While it appears that the
Commission was without authority or jurisdiction to consider the issue
it found dispositive, namely the claimed unavailibility of the "diminution

!/ Secretary of Labor v. Penn Allegh Coal Co., Inc., 3 FMSHRC
1392 (June 29, 1981). See also, Secretary of Labor v. Sewell Coal Co.,
3 FMSHRC 1402 (June 29,J:98U-:-2/

Id. at 1398-99.

2810

of safety" defense in an enforcement proceeding, there is no necessity
to pursue the consequences of that further in this proceeding. lf
Accordingly, it is ORDERED that for good cause shown the motion to
approve settlement be, and hereby is, GRANTED. It is FURTHER ORDERED
that the operator pay the penalty agreed upon, $1400.00, on or before
Monday, January 4, 1982.

Distribution:
Stephen P. Kramer, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Glenn E. Bost, II, Esq., Thorp, Reed & Armstrong, 2900 Grant Bldg.,
Pittsburgh, PA 15219 (Certified Mail)

1_/ Under the Mine Safety Law the Conunission does not have de novo
review powers. Section 113(d)(2)(iii)(A) and (B) of the Act precludes
review of any issue not raised before the administrative law judge or
covered by the Order Directing Review. In Labor v. Penn Allegh, supra,
the record shows and the Comniission's decision admits that the issue
concerning the "diminution of safety" defense was raised by the
Conunission ~ sponte &nd that neither the trial judge nor the parties
were afforded an opportunity to pass on the matter. Compare, Brown &
Root, Inc. v. Marshall,~- F.2d ~-' 1981 OSHD Par. 25,741, p. 32110
(5th Cir. 1981); McGowan v. Marshall, 604 F.2d 885, 889 (5th Cir. 1979).

2811

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

DEC 21 81

Complaint of Discharge,
Discrimination, or
Interference

MARLENE FINN,
Complainant

v.
Docket No. KENT 81-167-D
BROWN BADGETT, INC.,
Respondent

MSHA Case No. MADI
CD 81-19
ORDER OF DEFAULT

The case was scheduled for hearing on the merits December 11, 1981 at
9:30 a.m. in Louisville, Kentucky pursuant to a notice of hearing served on
both parties.
Upon the Applicant's failure to appear at the hearing at 9:30 a.m.
and after waiting two hours for her to appear, the Applicant was held in
default at Ll:30 a.m. on December 11, 1981.
Wherefore, the Applicant's complaint of Discrimination is DISMISSED
on the merits for default and for want of prosecution.

•of"')

w~~ /~<i/.~t:
WILLIAM FAUVER, JUDGE
Distribution Certified Mail:
Mrs. Marlene D. Finn, Route 3, Bruce School Rqad, Beaver Dam, Ky. 42320
Ralph W. Wible, Esq., 100 St. Ann Building, PO Box 727, Owensboro, Ky. 42320

2812

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

22041

DEC 2 2 1981
SECRETARY OF LABOR,
MINE SAFETY 1\.ND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceedings
Docket No. PENN 81-154
A.O. No. 36-02581-03043

v.

Docket No. PENN 81-183
A.O. No. 36-02581-03044

PENN ALLEGH COAL CO., INC.,
Respondent

Allegheny No. 2 Mine
ORDER

Pursuant to Commission Rule 65(c) the order issued December 16,
1981 is corrected to reflect approval of the agreement of the parties
to settle the above captioned cases for a total of $1800.00. The
last sentence of the order is therefore corrected to read: "It is
FURTHER ORDERED that the operator pay the penalty agreed upon,
$1800.00, on or before Monday, January
1982, and that subject
to payment the captioned matters be,
hereby are, DISMISSED."

Ji•

r,'f

Distribution:
Stephen P. Kramer, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Glenn E. Bost, II, Esq., Thorp, Reed & Armstrong, 2900 Grant Bldg.,
Pittsburgh, PA 15219 (Certified Mail)

2813

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

Contests of Citations

MATHIES COAL COMPANY,
Contestant

Docket No. PENN 81-240-R
and
CONSOLIDATION COAL COMPANY,
Contestant

v.

Citation No. 1142325
September 11, 1981
Mathies Mine

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

Docket No. PENN 81-241-R
Respondent

Citation No. 1050290
September 11, 1981
Westland Mine

DECISION
Appearances:

Jerry F. Palmer, Esq., Pittsburgh, Pennsylvania, for
Contestant;
Covette Rooney, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for Respondent.

Before:

Judge Melick

These consolidated cases are before me upon notices of contest filed
by the Mathies Coal Company (Mathies) and the Consolidation Coal Company
(Consolidation) under section 105(b) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et seq., the "Act," challenging the validity
of citations issued pursuant to section 104(a) of the Act. Hearings were
held in these cases in Pittsburgh, Pennsylvania, commencing October 27,
1981.
Docket No. PENN 81-240-R
The issue before me in this case is whether there was a violation of the
mandatory standard at 30 C.F.R. § 75.1405 as alleged in Citation No. 1142325,
and if so, whether that violation was "significant and substantial" as defined
in the Act and as interpreted in Secretary of Labor v. Cement Division, National
Gypsum Company, 3 FMSHRC at 825 (1981).

2814

Citation No. 1142325 alleges as follows:
There were four supply cars located on the No. 2 Thomas
supply track, at Thomas Portal bottom, that were equipped with
automatic couplers. However, chains or rings in addition to
automatic couplers are used on the automatic couplers, and a
bar is used to uncouple the supply cars which is not approved
device.
The cited standard provides as follows:
All haulage equipment acquired by an operator of a coal
mine on or after March 30, 1971, shall be equipped with automatic couplers which couple by impact and uncouple without
the necessity of persons going between the ends of such
equipment. All haulage equipment without automatic couplers
in use in a mine on March 30, 1970, shall also be equipped
within 4 years after March 30, 1970.
The essential facts are not in dispute. On September i1, 1981, Francis
Wehr, a coal mine inspector for the Mine Safety and Health Administration
(MSHA), was performing a regular inspection of the Mathies Mine accompanied
by his supervisor, William Dupree, the company safety inspector, Mr. Hamilton,
and a union representative. At the Thomas portal, they observed eight to
10 rail cars coupled together on the supply track. A combination of coupling
systems was employed on the cars. Two of the systems were found by Inspector
Wehr to be in violation of the cited standard. The cited coupling systems
combined an automatic coupler, which coupled by impact and which uncoupled
without the necessity of persons going between the ends of the rail cars, and
a link chain or metal ring which did not couple by impact but which could have
been uncoupled without the necessity of persons going between the ends of the
rail cars if a specialized "safety bar" was used. The chains and rings were
engaged and disengaged from hooks attached to the automatic couplers either
by hand or by the use of the "safety bar." In the former instance, miners
would necessarily place themselves between the ends of the rail cars to engage
or disengage the chain or ring. In the latter instance, if the "safety bar"
was correctly used, miners would not necessarily be positioned between the
ends of the rail cars.
The purpose of the standard here cited 30 C.F.R. § 75.1405, is to prevent miners who must couple and uncouple haulage equipment from subjecting
themselves to injury by going between the ends of haulage cars. Pittsburgh
Coal Company v. Secretary, 1 FMSHRC 1468 (October 1979). In that case, a
miner was fatally injured while attempting to uncouple two haulage cars. All
of the haulage cars had operable disconnect levers on one side, and some of
the cars had additional disconnect levers on the other side as well. Not all
of the additional levers were operable, however, and the victim had attempted
to uncouple with one of the inoperable levers. When the lever failed to
work, he reached between the ends of the cars to manually disconnect them.
The locomotive operator, unaware that the victim was between the cars,

2815

started the train and the victim was crushed. In rejecting the operator's
argmnent that it had been in compliance with the cited standard because it
had uncoupling devices operable on one side, the Commission stated that the
purpose of the standard was best effectuated by requiring that all uncoupling
devices be maintained in an operable condition. The Commission observed
that an inoperable device might induce a miner to go between the ends of the
haulage equipment to attempt manual uncoupling. As the Commission further
noted, the miner was killed after going between the ends of haulage cars
after unsuccessfully attempting to use an inoperable device and that the
standard was designed to prevent exactly that type of accident.
In Canterbury Coal Company, 6 IBMA 276 (1976), aff'd., Canterbury Coal
Company v. Kleppe, 559 F.2d 1207 (3rd Cir. 1977), a petition for modification
of the application of the standard here cited was rejected because a linkaligner system used by Canterbury was found to be unacceptable. Canterbury's
link-aligner system was apparently similar to the chain, ring and hook systems
used by Mathies in this case in that if certain specific procedures were
invariably followed, there would be no need for mine personnel to go between
rail cars during coupling and uncoupling operations. The problem with any of
these systems is, however, similar to that described by the former Interior
Board of Mine Operations Appeals in Canterbury:
While the testifying motorman might well do as he said at
all times, we must always consider what might occur if someone else were performing the coupling. Another miner, substituting for the regular motorman, might not be so conscientious
or might be confronted with an emergency situation and perform
a coupling or uncoupling without thinking to use the link
aligner. Further, * * * even though only a short distance
away * * * a substitute might be inclined to perform a
coupling without employing the li~k aligner. Such is not the
case with automatic couplers which couple on impact. An
automatic coupler is always available and except for the possibility that it might require positioning within its gathering range, it does not require hmnan input to perform a
coupling.
The chain and ring systems utilized by Mathies present the same hazard as
the link-aligner found inadequate in Canterbury. Thus, a miner not familiar
with the coupling and uncoupling operations might be called upon to perform
such work. In addition, the "safety bar" needed under Mathies' system to
position the chain and ring might not be immediately available to the miner.
Indeed, the undisputed testimony in this case is that "8 out of 10 times" the
"safety bar" was in fact not available when needed. Moreover, because of the
difficulty of manipulating with an extended bar, there is always the temptation for the miner to perform the task manually without the safety bar. As
noted in Canterbury, the automatic coupling system mandated in the cited
standard essentially eliminates the possibility of these occurrences.
Under the circmnstances, I conclude that the coupling systems here cited
do not meet the requirements of the standard at 30 C.F.R. § 75.1405. Th.e

2816

systems as a whole admittedly did not couple on impact under any circumstance.
In addition, since the uncoupling operation of these systems presents the same
hazard found unacceptable in the Pittsburgh Coal and Canterbury Coal cases, it
is clear for this additional reason that the systems are in violation of the
cited standard. 1/
Whether a violation is "significant and substantial" depends on whether
"based upon the particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to would result in an inJury
of a reasonably serious nature." Secretary v. Cement Division, National Gypsum
Company, 3 FMSHRC at page 825 (1981). The test has essentially two aspects:
the probability of resulting injury and the seriousness of resulting injury.
Within this framework, I indeed find that the violation here was "significant
and substantial."
The undisputed evidence in this case demonstrates that serious injuries
and fatalities have resulted from miners positioning themselves between the
ends of rail cars. In particular, case histories have shown that such incidents occurred where the miner placed himself between the cars in efforts to
manually operate a coupling mechanism. While the hazard herein may have been
reduced somewhat as a result of company directives and training given subsequent to the citation at issue, the determination of "significant and substantial" must be made in view of the facts existing at the time the citation was
issued. The undisputed evidence in this case shows that before company
directives were issued and a training program was instituted on September 23,
1981, employees responsible for coupling and uncoupling the subject rail cars
had received no training in the use of the "safety bar." One witness testified that in any event "eight times out of 10" the safety bars were not even
available during coupling and uncoupling operations. It was accordingly not
uncommon for employees to manually engage and disengage the chains and rings
while positioned between the rail cars. MSHA supervisor William Dupree also
opined that serious injuries and fatalities were highly probable under the
circumstances. If the cars should move while the miner is between them,
crushed or broken fingers and hands and even fatal injuries were likely.
According to Dupree, not even the so-called "safety bar" was free of hazard.
An employee could be dragged by the "safety bar" into the path of the cars
upon sudden movement of those cars.
1/ Mathies appears to suggest that, even assuming there was a violation, it
would diminish safety to require abandonment of the chain and ring system
here employed. It is now clearly established however that such a contention
must be first resolved in a modification proceeding under section lOl(c) of
the Act. Secretary v. Penn Allegh Coal Company, 3 FMSHRC 1392 (1981). The
assertion is accordingly premature in this proceeding. Apparently, in
anticipation of a petition for modification being filed in the matter here
at issue, MSHA had, presumably under the provisions of 30 C.F.R. § 44.16,
allowed interim relief to Mathies to permit continuing operations under
strict controls.

2817

While Mine Safety and Health Committeeman Jack Schmitt testified that he
had begun, at least a month before the citation herein was issued, to notify
miners to use the safety bar for coupling and uncoupling operations, it is
not clear how many miners were actually so notified or what effect that advice
might have actually had. Accordingly, I do not find that the hazard was
reduced in any significant way by Schmitt's efforts.
Under the circumstances, Citation No. 1142325 is AFFIRMED with its
attendant "significant and substantial" findings. The contest, Docket
No. PENN 81-240-R, is accordingly DISMISSED.
Docket No. PENN 81-241-R
Because of the legal and factual similarities between the citation in
this case, No. 1050290, and the citation in Docket No. PENN 81-240-R, the
parties agreed at hearing that the disposition of that case would be controlling in this case. Accordingly, Citation No. 1050290 is also AFFIRMED
and the contest, Docket No. PENN 81-241-R, is D SMISSED.

Distribution:
Je1rry F. Palmer, Esq.,
Pittsburgh, PA 15241
Covette Rooney, Esq., Office of the Solicitor, U.S. Department of Labor,
14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Harrison Combs, Esq., United Mine Workers of America, 900 15th Street,
NW., Washington, DC 20005 (Certified Mail)

2818

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

_ _ _ _ _ _ _D_E_C2 3 1981
C F &I

)
)
)
)
)
)
)
)
)
)
)
)

STEEL CORPORATION,
Applicant,
v.

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

APPLICATION FOR REVIEW
DOCKET NO. WEST 80-350-R
Order of Withdrawal No. 827038
Mine: AU en

DECISION AND ORDER
APPEARANCES:
Phillip D. Barber, Esq.
Wellborn, Dufford, Cook & Brown
1100 United Bank Center
Denver, Colorado 80290
For the Applicant
James H. Barkley, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
For the Respondent
BEFORE: Judge Jon D. Boltz
STATEMENT OF THE CASE
This proceeding involves an application for review of an innninent
danger order of withdrawal pursuant to the provisions of section 107 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1978)
[hereinafter cited as "the 1977 Act" or "the Act"]. On Junel2-:-T980,
Applicant, C F & I Steel Corporation [hereinafter "C F & I ] , filed with
the Connnission its Application for Review. Respondent, the Secretary of
Labor, Mine Safety and Health Administration (MSHA) [hereinafter "the
Secretary"] responded to the application for review by filing an Answer
with the Connnission on July 14, 1980. Pursuant to notice, a hearing on the
merits was held in Pueblo, Colorado.

2819

FINDINGS OF FACT
1.

C F & I is the operator of an underground coal mine located nenr
Weston, Colorado, known as the Allen Mine.

2.

Products of the Allen Mine enter or affect interstate connnerce.

3. On May 8, 1980, a C F & I section foreman, in the company of MSHA
inspectors, was conducting face checks for accumulations of methane prior
to the commencement of work by his crew. In the crosscut between entries
No. 2 and No. 1, the section foreman detected a 1.5 per centum concentration of methane near a rib. Utilizing a permissible methane detector
similar to the one used by the foreman, an inspector detected accumulations
of methane in concentrations of 1.8 and 2.1 per cent. Two vacuum bottle
air samples were taken by the inspector at a point twelve inches from the
roof, the right rib and the face area of the advancing crosscut. Upon
subsequent analysis, the two air samples revealed methane concentrations of
1.53 and 1.83 per cent.
4. Order of Withdrawal No. 827038 1 / was issued to C F & I by the
inspector pursuant to the imminent danger provision of the Act, section
107(a), and a citation provision of the Act, section 104(a). I~ the part
and section category of the order, the inspector alleged a violation of

1/

The "CONDITION OR PRACTICE" cited alleges:

"Upon arriving in section 1 south off 1 east section [unintelligible
characters] 041-0 at 7:00 am an accumulation of methane was detected in
the face by a prmissible (sic) methane detector The CH4 ranged from 1.8 to
2.1 per centum citation 75.308 This section is normaly (sic) provided
ventilation by an auxiliary fan had been deenigized (sic) by the night
shift and no means was provided to ventilate the face area to prevent
accumulations of methane a citation of 75.302-4(d) This condition was
observed in the last crosscut between No 1 and 2 - entry".

2820

30 C.F.R. § 75.308. 2 / The inspector did not mark the "CITATION" box on
the order issued to C F & I , hut the "ORDER OF WITHDRAWAL" box was markr'.i
with an "X".
5. Upon discovering the accumulation of methan~, the section foreman
assembled his crew and put them to work clearing the mine atmosphere of
the gas. The crew tightened the existing brattice line, eliminating any
gaps, and installed additional brattice in the crosscut extending towards
the face area. Within 35 minutes of the time the order of withdrawal was
issued, the condition was abated by increased ventilation of the crosscut.
6. Methane is potentially explosive in air when present in
concentrations of 5 to 15 per cent by volume.
7. At the time the imminent danger withdrawal order was issued, and
immediately prior thereto, no miners were present at the working face where
the methane was detected. The miners waited in a lunchroom in a different
entry while the section foreman completed his face checks for methane. No
power was energized in the section at the time the order was issued or
prior to its termination. No production was ongoing. The area covered by
the order of withdrawal was well rock dusted. A volume of approximately
13,000 c.f.m. of air was present at the last open crosscut at the time the
order issued. After the order of withdrawal was issued, only authorized
personnel were allowed into the subject area and the only work performed
there were attempts to establish a greater volume of ventilation.

2/

§ 75.308 Methane accumulations in face areas.

[STATUTORY PROVISIONS]
If at any time the air at any working place, when tested at
a point not less than 12 inches from the roof, face, or rib,
contains 1.0 volume per centum or more of methane, changes
or adjustments shall be made at once in the ventilation in
such mine so that such air shall contain less than 1.0 volume
per centum of methane. While such changes or adjustments are
underway and until they have been achieved, power to electric
face equipment located in such place shall be cut off, no
other work shall be permitted in such place, and due precautions
shall be carried out under the direction of the operator or his
agent so as not to endanger other areas of the mine. If at any
time such air contains 1.5 volume per centum or more of methane,
all persons, except those referred to in section 104[c] of the
Act, shall be withdrawn from the area of the mine endangered
thereby to a safe area, and all electric power shall be cut off
from the endangered area of the mine, until the air in such
working place shall contain less than 1.0 volume per centum of
methane.

2821

ISSUES PRESENTED
1. Whether the conditions which existed in C F & I 's Allen Mine, at
the time the order of withdrawal was issued, constituted an imminent
danger?
2. Whether a violation of a mandatory safety and health standard,
capable of supporting a penalty, occurred at C F & I 's Allen Mine?
DISCUSSION
Supporting its case for vacation of the imminent danger order of
withdrawal, C F & I cites the decision of Secretary of Labor, Mine Safety
and Health Administration (MSHA) v. C F & I Steel Corporation, 3 FMSHRC 99
(1981). In that case, I dismissed an imminent danger order of withdrawal
issued to C F & I when mine personnel were in the process of attempting to
clear an accumulation of methane in a belt haulage entry by increasing
ventilation of the area. The concentration of methane involved was
demonstrated to be somewhere between 1.42 and 1.86 per cent.
The significant fact involved in that case was that when the inspector
issued the order of withdrawal, C F & I was already doing everything it
possibly could do to pbate the condition. The work was being done only by
those persons who would have been authorized to be in the area had an
imminent danger order been in effect. The critical distinction between the
cited case and the case at bar is that, in the former case, abatement was
already in progress and being performed by authorized personnel. Here,
even though no production was ongoing, abatement had not yet commenced.
C F & I emphasizes that no miners were present in the section covered
by the imminent danger order of withdrawal. Pursuant to C F & I preshift
policy, the miners waited in a lunchroom located in a different entry, some
300 feet from where the methane was detected, while the section foreman
completed his face checks for methane. Following that practice, only when
the section foreman had completed his face checks, determined it was safe
and personally energized the section power source would the miners be
allowed to enter the working section. I must conclude, however, that the
conditions which existed at C F & I 's Allen Mine, at the time the order of
withdrawal was issued, constituted an imminent danger.
For the proposition that the presence of 1.5 volume per centum or more
of methane, as a matter of law, requires the issuance of a withdrawal
order, the Secretary cites the decision of Pittsburgh Coal Company, 2 IBMA
277 (1973). The Secretary contends that an imminent danger order must be
issued even though no miners are in the affected area since one purpose of
a withdrawal order is to insure that miners remain out of the affected area
until the condition is corrected. For this proposition, the Secretary
cites the decision of The Valley Camp Coal Company, 1 IBMA 243 (1972).

2822

I would characterize the holding of the first cited case :>amewhat
differently. Pittsburg Coal Company, supra, stands for the proposition
that the presence of 1. 5 volume per cent um or more oF methane •·1ill suppo•·t
the issuance of an innninent danger withdrawal order. Id. at 277, 279. Tf1e
Valley Camp Coal Company, supra, stands for the proposition that an orde-~
of withdrawal can properly be issued if no miners are in the mine because
an order of withdrawal not only takes the miners out of the mine, but also
keeps them out until the danger has been eliminated. Id. at 248. In
Secretary of Labor, Mine Safety and Health AdministratTOn (MSHA) v. C F & I
Steel Corporation, supra. I concluded that the danger presented by the
accumulation of methane had been eliminated. That is not the case with the
matter at hand. The accumulation of methane that existed on May 8, 1980,
having been only recently discovered, could reasonably be expected to cause
death or serious physical harm before the danger posed had been eliminated.
No abatement was in progress. Therefore, I find that the order of
withdrawal is valid and should be affirmed.
On the issue of whether or not a mandatory safety or health violation
occurred, I find for the Applicant. The mandatory safety and health
standard allegedly violated was 30 C.F.R. § 75.308 (see footnote 2/ page
2). Given the facts as found, it is clear that when the air at the working
face was found to contain 1.0 volume per centum or more of methane, C F & I
at once made changes or adjustments in the ventilation of the Allen Mine to
reduce the methane concentration to less than 1.0 per cent.
While such changes or adjustments were underway and until they had been
achieved, the power to electric equipment in the area remained off, no
production was ongoing, and due precautions were exercised by C F & I so
as not to endanger other areas of the mine. Additionally, all persons
other than those referred to in section 104(c) of the Act were withdrawn to
a safe area of the mine. On these facts, no violation of the mandatory
safety and health standard contained in 30 C.F.R. § 75.308 occurred and I
cannot sustain the violation alleged in Order of Withdrawal No. 827038.
The condition or practice cited in the orde~ also makes reference to
an alleged violation of 30 C.F.R. § 75.302-4(d). I No evidence is
contained in the record regarding the use vel non of auxiliary fans, the
existance of scheduled idle periods or the--ventilation scheme in use at the
Allen Mine. Therefore, I have no basis upon which to sustain the violation
of 30 C.F.R. § 75.302-4(d) alleged in Order of Withdrawal No. 827038.

3/

§ 75.302-4 Auxiliary fans and tubing.

(d) In places where auxiliary fans are used, the ventilation during
scheduled idle periods such as weekends and idle shifts, shall be by means
of the primary air current conducted into the place in a manner to prevent
accumulations of methane.

2823

As no viol at ion of a mandatory s11fety or health standard was found ro
exist, it is not necessary for me to rule on the s{gnificance of the fact
that the "CITATION" box on the order was not marked, how that fact af feet. s
the sufficiency of the order as a section 104(a) citation or ~1ether
C F & I was given adequate notice that a citation alleging a violation oE
30 C.F.R. § 75.302-4(d) was being issued.
CONCLUSIONS OF LAW
1. The undersigned Administrative Law Judge has jurisdiction over the
parties and subject matter of this proceeding.
2. The conditions which existed at C F & I 's Allen Mine on. May 8,
1980, did constitute an imminent danger at the moment that Order of Withdrawal No. 827038 was issued.
3.

The order was valid and should be affirmed.

4. The alleged violation of 30 C.F.R. § 75.308 contained in Order of
Withdrawal No. 827038 was not proven by a preponderance of the evidence.
5.

The allegation was not sustained and should be vacated.

6. The alleged violation of 30 C.F.R. § 75.302-4(d) contained in
Order of Withdrawal No. 827038 was not proven by a preponderance of the
evidence.
7.

The allegation was not sustained and should be vacated.
ORDER

Based upon the foregoing findings of fact and conclusions of law,
Order of Withdrawal No. 827038 is AFFIRMED, the violation of 30 C.F.R.
§ 75.308 alleged therein is VACATED and the violation of 30 C.F.R. § 75.
302-4(d) alleged therein is VACATED. This proceeding is hereby DISMISSED
WITH PREJUDICE.

/~~. -;:.~
'_//.-!iJ\~
.·,

/>ion n. !fotf7-==z7

,_/ Administrative Law'Judge

2824

Distribution:
Phillip D. Barber, Esq.
Wellborn, Dufford, Cook & Brown
1100 United Bank Center
Denver, Colorado 80290
James H. Barkley, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294

2825

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

)
)
)
)
)
)
)
)

RICHARD M. ATKINSON, doing business as )
SOMIS SAND & ROCK CO.,
)

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 80-467-M
A/C No. 04-01951-05003
MINE: Balcolm Canyon Plant

)
)
)

Respondent.
~~~~~~~~~~~~~~~~~~~~-

Appearances:
Theresa Kalinski, Esq., Office of the Solicitor
United States Department of Labor
Room 3247 Federal Building
300 North Los Angeles Street
Los Angeles, California 90012
For the Petitioner,
Annie Verdries, Esq.
4115 East Live Oak Avenue, Suite 108
Arcadia, California 91006
For the Respondent
Before: Judge Jon D. Boltz
DECISION AND ORDER
The Petitioner filed a petition proposing that civil penalties be
assessed against the Respondent for the alleged violation of five
regulations promulgated pursuant to the Federal Mine Safety and Health Act
of 1977 ("Act"). The alleged violations took place at Respondent's sand
and rock operation on April 2 and April 3, 1980. In its answer, the
Respondent generally denied the allegations of the Petitioner.
At the connnencement of the hearing on the issues, counsel for the
Petitioner stated that the parties had reached a proposed settlement of all
issues. Based upon statements of counsel for the Petitioner, I make the
following findings:
1.

Respondent has a history of eight assessed violations.

2.

Respondent is a small operator with production

year.

282-S

of 11,943 tons per

3. The proposed penalties will not impair the ability of the
Respondent to continue in business.
4. There was demonstrated good faith by the Respondent in achieving
rapid compliance after notification of the alleged violations.
Considering the above findings, the statements filed by counsel for
the parties, as well as the proposal for settlement as stated by counsel
for the Petitioner, I find that the proposal for settlement should be
approved.
Citation No. 384514
A violation of 30 C.F.R. 56.11-12 was alleged as a result of an unsafe
travelway in that there was an open hole approximately 18" x 18" in the
work deck at the discharge hopper. A worker could have fallen into it and
been injured. Respondent's statement is that there was a support platform
approximately 3 inches under the deck which contained the opening, thereby
preventing men and material from falling into and being injured by the
opening. The parties agreed that a penalty of $70.00 would be reasonable
for the violation.
Citation No. 384516
This citation alleges a violation of 30 C.F.R. 56.4-11. The
Petitioner alleges that the power supply to a cone crusher, that had been
removed, had three bare leads coming out of the cable. There was a shock
hazard because this cable could have been contacted by persons working in
the area, The Respondent's statement is that the circuits were
deenergized. The parties stipulate that a reasonable penalty would be
$90.00.
Citation No. 384517
This citation alleges a violation of 30 C.F.R. 56.9-7. It is alleged
that the walkway side of the gravel conveyor was not provided with adequate
guarding or an emergency stop device along the length of the elevated
conveyor, The Respondent's statement is that parts of the existing guards
were temporarily removed for cleaning and repair work. The parties have
agreed that a reasonable penalty for the violation would be $65.00.
Citation No. 384518
A violation of 30 C.F.R. 56.12-32 is cited. The Petitioner alleges
that there was wiring coming out of the junction box on the southeast
support leg of the dry plaster sand storage bin. This condition presented
a potential shock hazard to persons coming into contact with the structure.
The Respondent's statement is that the equipment involved was situated in
an abandoned part of the mine. All lines were deenergized and the wires
were taped off and had been isolated, No employees were working in the
abandoned section of the mine. The parties stipulate that proposed penalty
of $65.00 would be reasonable,

2827

Citation No. 384529
Petitioner alleges a violation of 30 C.F.R. 50.40(b) and specifically
alleges that records, including quarterly reports and accident reports,
were not being maintained at the mine office located on the property.
Respondent's statement is that the reports were temporarily transferred to
the main office for information necessary to answer allegations contained
in a complaint filed by MSHA against the mine operator. The parties agree
that a penalty assessment of $10.00 would be reasonable.
The foregoing penalty assessments total $300.00. The parties further
stipulate that to ease the difficulty of making payment in full immediately, four consecutive monthly installments of $75.00 each will be paid
corrnnencing December 15, 1981. The final monthly installment will thus be
paid March 15, 1982, making a total of $300.00.
From the bench I approve the proposed settlement, including the method
of payment. This approval was made after considering the statutory
criteria set forth in section llO(i) of the Act.
ORDER
The settlement approved from the bench is hereby AFFIRMED.
The Respondent is ORDERED to pay civil penalties in the total amount
of $300.00. This judgment is to be satisfied by paying monthly installments of $75.00 each, commencing December 15, 1981, and on the 15th day of
each month thereafter, including March 15, 1982, until a total of $300.00
has been paid.

J ~ n D. Bo 1 t z

Administrative Law Judge
Distribution:
Theresa Kalinski, Esq.
Office of the Solicitor
United States Department of Labor
3247 Federal Building
300 N. Los Angeles Street
Los Angeles, California 90012
Annie Verdries, Esq.
4115 East Live Oak Avenue, Suite 108
Ar~adia, California
91006

2828

"( )

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

DEC 2 9 1981
SECRETARY OF LABOR,
MINE SAFETY Afm HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. VA 80-171
Assessment Control
No. 44-04880-03027 V

v.
No. 1 Mine
ABSOLUTE COAL CORPORATION,
Respondent
SUMMARY DECISION
A notice of hearing was issued on August 10, 1981, in the above-entitled
proceeding providing for a hearing to be held on September 16, 1981. Prior to
the date of the hearing, counsel for the parties filed on September 15, 1981,
a joint stipulation of undisputed material facts and a motion for stmmlary decision pursuant to 30 C.F.R. § 2700.64. Counsel for the parties also indicated
that they would file briefs in support of their respective positions. Counsel
for respondent ];/ submitted on November 3, 1981, a memorandum in support of his
request for summary decision and counsel for the Secretary of Labor submitted
on November 19, 1981, a memorandum in reply to respondent's memorandum.
Stipulations
The parties' stipulations are set forth below:
1. The Administrative Law Judge has jurisdiction over the parties and
subject matter of this proceeding.
2. Absolute Coal Corporation and its No. 1 Mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et
~·

3. Absolute Coal Corporation owns and operates the No. 1 Mine located in
Bee, Dickenson County, Virginia.
4. A violation of mandatory safety standard 30 C.F.R. 75.316 occurred on
January 2, 1980, at Absolute's No. 1 Mine as charged in Withdrawal Order No.
0686121.

1_/ After the decision in this proceeding had been written, but before the
decision had been issued in final form, the attorney who wrote respondent's
memorandum in this proceeding filed a letter on December 23, 1981, stating
that he no longer is employed by respondent and that respondent's parent, AOV
Industries, Inc., has initiated bankruptcy proceedings. Therefore, this decision is being sent to the attorney who represents respondent's parent in the
bankruptcy proceedings instead of to the attorney who wrote respondent's
memorandum.

2829

5. A violation of mandatory safety standard 30 C.F.R. 75.200 occurred
on January 2, 1980, at Absolute's No. 1 Mine as charged in Withdrawal Order
No. 0686122.
6. The civil penalty of $2,000.00 that has been proposed for the violation charged in Withdrawal Order No. 0686121 is reasonable in light of the
six statutory criteria set forth in Section llO(i) of the Act.
7. The civil penalty of $2,000.00 that has been proposed for the violation charged in Withdrawal Order No. 0686122 is reasonable in light of the six
statutory criteria set forth in Section llO(i) of the Act.
8. On or about October 26, 1979, Respondent retained Apple Mountain Coal
Company (Joe Davis) as a contract miner (hereinafter the "contractor"), for
the Absolute No. 1 Mine, pursuant to a Contract Mining Agreement ("Agreement") and equipment lease. (See Discovery Documents.)
9. These contracts constitute the only relationship or affiliation between Respondent and the contractor. (See Respondent's Answers to Petitioner's
Interrogatories; "Answers" No. 3, 12, 15, et al.).
10. On or about January 2, 1980, Petitioner issued citations for violations of federal law committed by the contractor. (See answer No. 12).
11. On July 1, 1980, Petitioner promulgated certain amendments to 30
C.F.R. Part 45 and further published an Enforcement Policy and Guidelines
for Independent Contractors ("Guidelines") 45 F.R. 44494-98.
When respondent's counsel submitted his memorandum in support of his
request for sunnnary decision, he prefaced his arguments with four paragraphs
under the heading "Statement of Material Facts Concerning Which There Is No
Material Dispute". His memorandum does not specifically state that counsel
for the Secretary has jointly agreed to sponsor the additional "Statement of
Material Facts" and, while the Secretary's counsel does not deny the accuracy
of the additional "Material Facts", she does not state that she agrees with
them or that she participated in their preparation. Except for Stipulation
No. 11 above, which is simply a statement of that which has been published in
the Federal Register, the additional facts are taken from materials which
respondent supplied in reply to petitioner's interrogatories and the additional
statement of facts appears to be accurate. Therefore, I have added the four
additional statements of material fact set forth in the preface to respondent's
memorandum to the original stipulations submitted by the parties. The four additional statements appear as Nos. 8 through 11 in the stipulations above.
Issue
The only issue raised in respondent's memorandum (p. 2) is whether respondent should be cited or assessed penalties for violations of law committed by a
third-party contract miner.
Consideration of Parties' Arguments

2830

Respondent Should Not Be Cited for the Violations Here Involved
In ~upport of its argument that it should not be cited for the violations
involved in this proceeding, respondent's IDemorandum (p. 2) relies upon the
provisions of its mining agreeIDent with Apple Mountain Coal Company, or contractor, to argue that the contractor should be held liable for the violations.
Respondent refers to the prbvisions of the mining agreement for the purpose of
showing that the contractor was obligated (1) to produce the coal reserves
until they were exbausted, (2) to conduct mining operations in a workmanlike
manner, (3) to comply with all applicable laws and regulations, (4) to indemnify respondent against any breach of MSHA's regulations or the Act, (5) to
accept the coal properties as they existed at the time the agreement was signed
in October 1979, and (6) to perform as an independent contractor with power to
control the acts of its employees. Respondent uses the aforesaid contractual
obligations to reach a conclusion that it was the contractor's responsibility
to comply fully with the Act and the regulations promulgated thereunder.
After having asserted that the contractor was liable for its own violations, respondent's memorandum (p. 3) proceeds to review MSHA's connnents in
the Federal Register (Stipulation No. 11, supra) pertaining to MSHA's decision
to cite independent contractors for violations which occur as a result of
their work at coal or other mines. Respondent emphasizes MSHA's comments to
the effect that health and safety interests at mines will best be served by
placing responsibility for compliance with health and safety standards on
independent contractors because they are in the best position to prevent safety
and health violations in the course of their work and to abate any violations
which may occur.
While respondent concedes that MSHA's comments in the Federal Register
show that MSHA might hold production-operators liable for violations in some
circumstances, respondent argues that those circumstances do not apply in this
instance because (1) it was the contractor, not respondent, who failed to comply
with the mine's ventilation plan, (2) it was the contractor, not respondent,
who failed to comply with the mine's roof-control plan, and (3) it was the contractor's employees, not respondent's employees, who were exposed to hazardous
conditions because of the contractor's violations. For the foregoing reasons,
respondent contends that only the contractor should be cited for the violations
observed by the inspector on January 2, 1980 (Stipulation Nos. 4 and 5, supra).
Petitioner's reply memorandum (pp. 1-2) argues that respondent was properly
cited for the violations of section 75.316 and 75.200 because (1) respondent
retained the U.S. Department of Labor Legal Identification Number for the mining property involved and also obtained all necessary licenses and permits for
authorization to produce coal from respondent's No. 1 Mine, (2) respondent retained the right to have all coal produced from the mine delivered to respondent's preparation plant, (3) respondent reserved the right to enter upon the
mine property at all suitable times for the purpose of inspecting the contractor's
operations, (4) respondent may require the contractor to cure any potential violations of legally mandated health or safety standards, and (5) respondent owned
all the equipment which the contractor used to produce coal. Petitioner concludes
from the aforementioned extensive control which respondent exercised over the
contractor's operations, that respondent was properly cited for the violations
which occurred at respondent's mine.

2831

Petitioner's reply memorandtnn (p. 3) also argues that an owner of a coal
mine should not be able to escape all statutory duties and responsibilities
under the Act by entering into contracts under which the owner seeks to transfer all of the owner's obligations under the Act to the contractor who is
carrying out the owner's interest in seeing that coal is produced.
I believe that petitioner has correctly pointed out that respondent retained so much control over the operation of the No. 1 Mine that MSHA may
properly hold respondent liable for the violations which occurred at respondent's mine ... Respondent controlled the operations at the the mine to an even
greater extent than petitioner's reply memorandum has indicated. It should be
noted that the mining agreement allows the contractor to be paid only $16.50
per ton for clean coal delivered to-respondent's preparation plant. From the
payment of $16.50 per ton, respondent deducts 50 cents per ton to hold in
escrow. The mining agreement also provides that the contractor must deliver a
minimum amount of coal per month. If the contractor fails to deliver the
minimum monthly tonnage, respondent reserves the right to cancel the agre~
ment and retain all money held in escrow. Respondent also deducts 50 cents
per ton from the $16.50 payable to the contractor to reimburse respondent for
supplies which the contractor is required to obtain from respondent.
Respondent owns the mining equipment required for the contractor's production of respondent's coal. The only rent which the contractor has to pay for
use of respondent's equipment is the contractor's obligation to fulfill the
terms of the mining agreement described above. Of course, the contractor has
to pay for any repairs which have to be made to respondent's equipment and the
contractor must pay for or replace any lost or stolen equipment. The contractor is also required to carry insurance and pay the premiums on insurance
covering respondent's equipment.
It is obvious from the above-described provisions of the agreements between
respondent and contractor, that respondent has absolute control over the operation of the No. 1 Mine and that the agreements place such severe economic limitations on the contractor that the contractor will find it very difficult to
make a profit from extracting respondent's coal. Moreover, the financial constraints placed upon the contractor by respondent will put pressure on the
contractor to scrimp on compliance with safety standards in order to save money.
An indication of the contractor's lack of funds is shown by the inspector's
language in Order No. 686122 which states that the contractor was installing
only three rows of roof bolts instead of the four rows required by the roofcontrol plan. The roof bolts were supposed to have been no more than 48 inches
apart, but they were 67 to 68 inches apart, or 20 inches farther apart than they
should have been. One way to save money, of course, is to install as few roof
bolts as possible. Nothing is more hazardous in an underground coal mine than
failing to install an adequate number of roof bolts. The violation of section
75.~16 cited in Order No. 686l21 also shows a failure of the contractor to supply adequate materials because, according to the inspector's order, the contractor
was using line curtain only 48 inches long to ventilate the face area at a time
when the mining height was 55 inches.
As I have previously noted, respondent's memorandum (p. 3) concedes that
MSHA's connnents in the Federal Register refer to circumstances under which it
would be appropriate to cite the production-operator for violations, as well as

2832

the independent contractor, but respondent claims that MSHA's comments about
citing production-operators do not apply to the circumstances which exist in
this proceeding. The comments to which respondent refers are set forth below
(45 Fed. Reg. 44,497):

* * * Accordingly~ as a general rule; a production-operator may be
properly cited for a viola~ioli involving an independent contractor:
(1) when the p~oduction-operator has contributed either an act or an
omission to the occu:r.rence of a violation in the course of an independent contractor's work, or (2) when the production-operator has contributed by either an act or omission to the continued existence of a
violation committed by an independent contractor, or (3) when the
production-operator's miners are exposed to the hazard, or (4) when
the production-operator has control over the condition that needs
abatement. * * *
An examination of the above-quoted comments of MSHA in light of the facts
in this proceeding shows that respondent comes within MSHA's guidelines under
which the production-operator should be cited, in either a separate or joint
proceeding, for violations committed by the independent contractor. Although
respondent had reserved the right to inspect the contractor's production operations to determine whether the contractor was complying with all safety regulations (Agrement, par. 7), respondent either did not make such inspections or
failed to assure that the contractor was complying with the health and safety
standards. Such failures constituted an "omission" within the meaning of MSHA's
guidelines which would make respondent liable for the violations which occurred
while the contractor was producing respondent's coal.
An "act" by respondent which would make respondent liable for being cited
for the contractor's violations is the insertion in the agreement between
respondent and the contractor of a minimum monthly volume of coal which the
contractor is required to produce or run the risk of having the agreement
canceled with escrowed funds being retained by respondent (Agreement, pars.
3(c) and 13). Cancellation of the contractor's agreement with respondent
would also have exposed the contractor to loss of any funds which it had expended for insurance and repairs on respondent's equipment. Clearly, respondent exercised sufficient control over the production of coal at its No. 1
Mine to subject it to being cited for violations committed by the contractor
at its No. 1 Mine.
Petitioner Should Apply its Enforcement Policy Retroactively
The last portion of respondent's memorandum (pp. 3-4) is devoted to contending that MSHA.'s policy for citing independent contractors for violations
of the mandatory health and safety standards should be applied retroactively.
Respondent supports its argument about retroactive application of the policy
of citing independent contractors by reference to a number of persuasive court
decisions, but it is unnecessary to consider those cases because MSHA has
already retroactively applied its policy of citing independent contractors
for violations of the mandatory standards. In fact, the most recent actions
taken by the Commission with respect to citing independent contractors, as
opposed to production-operators, or both, was in Pittsburgh & Midway Coal
Mining Co., 2 FMSHRC 2042 (1980), in which the Commission remanded a case to

2833

an administrative law judge so that the Secretary of Labor could determine
whether to apply the procedures for citing independent contractors for violations as those procedures were set forth in Volume 45 of the Federal Register
(Stipulation No. 11, supra). The Connnission indicated in its decision that
the Secretary was free to proceed against either the independent contractor or
the production-operator, or both. The Connnission has issued similar orders in
at least two other pr6eeedings, remanding the cases for the purpose of allowing
the Secretary to apply the rules pertaining to citing ·i:ndependent contractors
for violations of the mandatory safety standards (C and K Coal Co., 2 FMSHRC
2047 (1980), and Phillips Uranium Corp., 2 FMSHRC 2050 (1980)).
My decision issued November 30, 1981, in Old Dominion Power Company, Docket
No, VA 81-40-R, describes a factual situation in which MSHA applied its procedures for citing independent contractors on a retroactive basis. In the Old
Dominion case, an electric power company had installed some metering facilities
in a substation located on a coal operator's mine property. One of the power
company's employees was electrocuted while performing some work at the substation. The accident occurred on January 22, 1980. After inspecting the
site of the fatal accident, an MSHA inspector cited the production-operator
for a violation of the mandatory safety standards. After the promulgation of
MSHA's regulations providing for the citing of independent contractors, the
inspector modified his citation to allege that the power company, or independent
contractor, should be cited for the violation instead of the production-operator.
The citation was issued against the power company on January 21, 1981, or almost
a year after the production-operator had been cited for the violation and about
6 months after the rules for citing independent contractors had been promulgated.
Petitioner's reply memorandum (p. 4) first argues that MSHA's regulations
for citing independent contractors should not be applied retroactively. Petitioner's reply memorandum (p. 5) then takes a realistic alternative position
and argues that even if the policy for citing independent contractors is applied retroactively, that respondent should be held liable in this proceeding.
In support of petitioner's claim that respondent should be held liable, petitioner again refers to the facts in this proceeding which show that respondent
retained control of the mine property, retained the right to inspect the operator's activities to assure that the contractor complied with the safety standards, provided the equipment used in mining operations, and otherwise controlled
the mining operations sufficiently to be held liable for the violations which
occurred at respondent's mine.
As I have indicated above, the Commission has not ruled that MSHA is precluded from proceeding against an owner or a production-operator in any given
situation. It is only necessary that MSHA advance reasons for having cited
the production-operator in addition or instead of the independent contractor.
In this proceeding, MSHA's inspector first wrote the orders in the name of the
contractor and then modified the orders to cite respondent because the inspector
found that respondent was still shown in MSHA's files as the company which had
filed the Legal Identity Report required by 30 C.F.R. § 41.10. If respondent
wished to have the contractor shown as the operator of the No. 1 Mine, it should
have filed, pursuant to section 41.12, a change showing that respondent was no
longer operating the No. 1 Mine.

2834

Respondent's failure to file a change in its Legal Identity Report and its
retention of· complete control over the mine and all mining operations make it
liable for being cited for the violations of section 75.316 and 75.200 as alleged in Order Nos. 686121 and 6861220 Inasmuch as respondent has already
stipulated that the penalties of $2,000 proposed by the Assessment Office for
each violation is reasonable ln light of the six assessment criteria set forth
in section llO(i) of the Act (Stipulatien Nos. 6 and 7, supra), the order accompanying this decision will require that respondent pay penalties totaling
$4,000.00.
Nonexistence of an Independent Contractor in This Proceeding
While I have considered the parties' arguments in this proceeding under the
assumption that the facts warrant treatment of Apple Mountain Coal Company as
an independent contract (Stipulation No. 8, supra), Apple Mountain does not
really come within the meaning of an independent contractor as that term is
used in the regulations promulgated by MSHA in the Federal Register in Volume
45, pages 44,494 through 44,498.
If one examines the definition of the word "operator" as that term was
modified by the 1977 Act, it may be seen at a glance that the ind~pendent contractor is described in the last clause of that definition which provides as
follows: "'operator' means any owner, lessee, or other person who operates,
controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine." The facts in this proceeding
show that Apple Mountain would qualify as an "operator" under the foregoing
definition 9 but it would qualify under the word "lessee" because Apple Mountain
had become the lessee of respondent's mining equipment and had become the "person" who operated a coal mine for the purpose of producing coal for respondent
which was and still is the owner of the No. 1 Mine here involved.
When MSHA promulgated its rules for citing independent contractors, it
defined an "independent contractor" in section 45.2(c) as "* * * any person,
partnership, corporation, subsidiary of a corporation, firm, association or
other organization that contracts to perform services or construction at a
mine," whereas a "production-operator" was defined in section 45.2(d) as "* * *
any owner, lessee, or other person who operates, controls or supervises a coal
or other mine". MSHA's definition of an independent contractor would clearly
exclude Apple Mountain as a qualified "independent contractor" and would obviously
include Apple Mountain as a "production-operator".
One of the primary reasons for MSHA's having promulgated Part 45 of the Code
of Federal Regulations was to establish a procedure whereby actual independent
contractors could obtain an indentification number for use by an inspectbr when
he is writing citations or orders for the purpose of alleging that an independent
contractor has violated a health or safety standard. The inspector used an independent contractor's identification number when he issued the citation to which
I referred in the Old Dominion case, supra. Apple Mountain, as the entity which
actually produced the coal at respondent's No. 1 Mine, would not qualify for an
independent contractor's identification number under section 45.3 because Apple
Mountain was not performing mere services or construction at respondent's No. 1
Mine. Additionally, Apple Mountain would have had no need to comply with section

2835

45.4 of the regulations because they require independent contractors to report
to the production-operator the type of work to be performed at the productionoperator' s mine and the place at the mine where such work is to be performed.
Section 45.5 also requires production-operators to provide a complete description of independent contractors' work at their mines, and keep a record of
their names and addresses for service of documents, and be able to supply such
in.formation to MSHA upon request.
Although respondent was the owner and therefore a production-operator at
the time the orders here involved were written 9 Apple Mountain was also a production-operator at the time the orders were written. Therefore, neither Apple
Mountain nor respondent was obligated to keep a record of the type of information required by section 45.4 because there was no independent contractor performing services or construction work at respondent's mine at the time the
o~ders involved in this proceeding were written.
Since both Apple Mountain
and respondent were production-operators, they were both liable for the violations that occurred at respondent's mine and either or both of them could
have been cited for the violations, but the inspector properly issued the
orders in the name of the production-operator which had filed a Legal Identity
Report with MSHA showing that respondent was the production-operator in charge
of all operations at the No. 1 Mine at the time the orders were issued on
January 2, 1980.
WHEREFORE, it is ordered:
Absolute Coal Corporation, as the operator of the No. 1 Mine on January 2,
1980 9 was properly cited for violations on January 2, 1980, and shall, within
30 days from the date of this decision, pay civil penalties totaling $4,000.00
which are allocated to the respective violations as follows:
Order No. 686121 1/2/80 § 75.316 .•.•.•...••....•..•..... $ 2,000.00
2,000.00
Order No. 686122 1/2/80 § 75.200 ....•.....•••••.••.•..••
Total Civil Penalties Assessed in This Proceeding •...... $ 4,000.00

~.f~~.;J~

Administrative Law Judge
(Phone: 703-756-6225)
Distribution:

Catherine M. Oliver, Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 14480-Gate~ay Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)
Stanley Salus, Esq., Docter, Docter & Salus, Suite 700, 1612 K Street, NW,
Washington, DC 20006 (Certifed Mail)

2836

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

DEC 2 91981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Petitioner

Docket No. CENT 80-388-M
A/O No. 34-00033-05003

v.

Badger Mine
THE QUAPAW COMPANY,
Respondent
DECISION
Appearances:

Ron Howell, Esq., Office of the Solicitor, U.S. Department
of Labor, Dallas, Texa8, for the Petitioner;
Wo L. Childress~ President, The Quapaw Company, Dumright~
Oklahoma, for the Respondent.

Before:

Judge Stewart

I.

Procedural_Bac~round

On February 6, 1981, the Secretary of Labor (Petitioner) filed a complaint proposing penalty in the above~captioned case pursuant to section
llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (Supp. III 1979) (Act), charging The Quapaw Company (Respondent)
w~th one violation of mandatory standard 30 C.F.R. § 56.5-50(a). On
March 26, 1981, the Respondent filed an answer to the complaint in response
to an order to show cause issued by Chief Administrative Law Judge James A.
Broderick on March 16, 1981. Subsequent thereto, a notice of hearing was
issued.
The hearing was held in Oklahoma City, Oklahoma, with representatives
of both parties present and participatingo The Petitioner called one witness~ Federal mine inspector Millard Smith.
The Respondent was represented
by Mro W. Lo Childress, the company president, who took·the stand and testified as a witness fo:r the Respondent.
Following the presentation of the evidence, a schedule was set for the
filing of postheariug briefs and proposed findings of fact and conclusions
of law. However 9 neither party filecl a posthearing br:l:ef or p:rnposed find~
ings of fact ar1d con~lusions of lawa

2837

II.

Opinion

Two basic issues are involved in this civil penalty proceeding: (1)
did a violation of mandatory standard 30 C.F.R. § 56.5-50(a) occur, and (2)
what amount should be assessed as a penalty if a violation is found to have
occurred? In determining the amount of civil penalty that should be assessed
for a violation, the law requires that six factors be considered: (1) history
of previous violations; (2) appropriateness of the penalty to the size of the
operator's business; (3) whether the operator was negligent; (4) effect of
the penalty on the operator's ability to continue in business; (5) gravity of
the violation; and (6) the operator's good faith in attempting rapid abatement
of the violation. Section llO(i) of the Act.
Federal mine inspector Millard Smith issued Citation No. 167396 during
the course of his April 1, 1980, inspection of the Respondent's Badger Mine
(Exh. P-2; Tr. 5, 19). 1,/ The citation charges the Respondent with a violation of mandatory standard 30 C.F.R. § 56.5-50(a) 2/ in that "[t]he 988 Cat
loader, S/N 87A6382, was exposed to noise at the level of 157.9%. The
maxim\llll permissible limit at any time is 100%. Hearing protection was not
being worn" (Exh. P-2).
1/ The Badger Mine was en open-pit limestone mine and related milling
operation (Tr. 6).
2/ Mandatory standard 30 C.F.R. § 56.5-50(a) provides as follows:
"No employee shall be permitted an exposure to noise in excess of that
specified in the table below. Noise level measurements shall be made using
a sound level meter meeting specifications for type 2 meters contained in
American National Standards Institute (ANSI) Standard Sl.4-1971, 'General
Purpose Sound Level Meters,' approved April 27, 1971, which is hereby
incorporated by reference and made a part hereof, or by a dosimeter with
similar accuracy. This publication may be obtained from the American
National Standards Institute 9 Inc. 1430 Broadway, New York, New York 10018,
or may be examined in any Metal and Nonmetal Mine Safety and Health District
or Subdistrict Office of the Mine Safety and Health Administration.
PERMISSIBLE NOISE EXPOSURES
Sound level
Duration per day,
dBA, slow
hours of exposure
response
8 ••o••oeoeeoeoooeoeosooeooeoeoeooooo•••••oeeooooo
6 eeooooooooeooooeoaeeeoooooooooe•••o•e•ooo•oooooo
4 o o • o " o o o • o o o o o o o o o o • o o o o o o o • o o • o o o o o o ·o o o o o o o o o o
3 eooo•ooeeooeoogo"ooooeoeooooa•oooeoooooeooe<..eooo
2
1 It 2 o " o o o " o o o o o o o o ~ o o • o o ~ o :a. " ~ .. a o o e a o • o a c o o o o • o a
0

90
92
95
97
100

1

ooonoooo.-i.000.0000000013000000000':103000000000000000

105

~

0

0

0

0

0

•

0

0

0

•

0

0

0

:"'i f\ 0

Q

Q

0

0

0

0

•

0

0

0

!>

0

0

~

0

0

0

0

•

0

0

0

~

0

0

0

•

0

0

';) 0

Q

102

1/2 •
'S.
c
c
110
115
1/4 or less ••••••••••••••••••••••••••••••••••••••
No exposure shall exceed 115 dBA. Impact or impulsive noises shall not
exceed 140 dB, peak sound pressure level.
0

0. 0. 0

0

0.

0

0

0

0

0

•••• 0

0

0

0. 0

2838

0

0

0 . '.). 0

0

0

0. 0

0

•• 0

0

As relates to the fact of violation, the record discloses that the
inspector arrived at the mine early enough to obtain an 8-hour noise exposure
reading for each of the four employees to whom he attached dosimeters. He
calibrated the dosimeters prior to attaching them to the four individuals,
and obtained an 8-hour noise exposure reading for each of the four (Tr. 6-7).
The results of the survey disclosed that the operator of the Model No. 988
Caterpillar loader was overexposed to noise in that the exposure meter on the
the dosimeter read between 157 and 158 percent (Tr. 7-9, 11). Of the four
employees sampled,. only the loader operator was overexposed to ·noise (Tr •. 7).
The inspector then performed some calculations which disclosed that the
loader operator had been exposed ·to noise rated at more than 92 dBA but less
than 93 dBA during the 8-hour sampling period (Tr. 8-9, 19-21). 3/ The
inspector also noted that hearing protection was not being worn (Exh. P-2). !!_/
fn. 2 (continued)
"NOTE: When the daily noise exposure is composed of two or more periods
of noise exposure at different levels, their combined effect shall be considered rather than the individual effect of each.
If the sum
(C1/T1)+(C2/T2)+. • • (Cn/Tn)
exceeds unity, then the mixed exposure sha·ll be considered to exceed the
permissible exposure. Gn indicates the total time of ·exposure at a specified
noise leve·l, and Tn indicates the tota·l time of exposure permitted at that
level. Interpolation between tabulated values may be determined by the
following formula~
"Log T=6.322-·0.0602 SL
Where T is the time· in hours and SL is the sound .level in dBA. 11
1_/ It appears that the calculations must reveal that the individual has been
exposed to more than 91 dBA during an 8-hour sampling period before a cita-,
tion will be issued on the basis of noise exposure exceeding 90 dBA for an
8-hour period. The inspector testified that both the manufacturer of the
dosimeter. and the U.S. Department of Labor allow 1 dBA as an error factor
for the equipment (Tr. 7, 20, 22).
4/ The use or absence of personal hearing protection on the facts of this
case is immaterial to the determination as to whether a violation occurred,
Mandatory standard 30 C.F.R. § 56.5-50(b) provides that!
"When employees' exposure exceeds t'hat listed in the [table set forth
in 30 C.F.R. § 56.5-50(a)], feasible administrative or engineering controls
shall be utilized. If such controls fail to reduce exposure t~ within permissible levels, personal protection equipment shall be provided and used to
reduce sound levels to within the levels of the table."
Thus, the law authorizes the use of personal protection e·quipment as a
means of achieving compliance. with 30 C-.F.R, § 56.5-50(a) only i f feasible
administrative or engineering controls fail to reduce noise exposure to
within permissible levels. The evidence presented· in tlris case clearly
shows that feasible adm±nistTative or engineering ·conteo1s existed which
could have been utilized by the Respondent to reduce noise exposure to
within permissible levels.

2839

Mandatory standard 30 C.F.R. § 56.5-50(a) provides, in part, that no
employee shall be permitted an exposure to noise in excess of 90 dBA during
an 8-hour period. The results of the April 1, 1980, noise survey disclosed
that the loader operator was exposed to noise rated at more than 92 dBA but
less than 93 dBA during the 8-hour sampling period. Even allowing for the
1 dBA margin of error (see footnote 3, supra), it is clear that the loader
operator was exposed to noise in excess of 90 dBA during the 8-hour sampling
period. Accordingly, it is found that a violation of mandatory standard
30 C.F.R. § 56.5-50(a) has been proved by a preponderance of the evidence.
As relates to the· gravity of the violation, the standard is designed
primarily to afford protection against a partial or total loss of hearing
as a result of exposure to excessive noise over a period of time (see,~·_&•,
Tr. 9-10). 5/ Any eventual loss of hearing occasioned by overexposure to
noise could-reasonably be expected to· be permanent (Tr. 9-10).
Applying the 1 dBA margin of error (see footnote 3, supra), the record
discloses that the loader operator was exposed to greater than 1 dBA but
less than 2 dBA in excess of the allowable exposure during the 8-hour sampling period. Although the inspector testified that he felt the violation was
"serious enough" (Tr. 24), he also gave testimony which indicated that the
overexposure was not great (Tr. 24). In view of all of the circumstances, it
is found that the violat.i.on was nonserious and that the gravity was of a
moderate nature. 6/
In order to establish that the. Respondent demonstrated negligence in
connection with the v.iolation, the Petitioner must prove by a preponderance
of the evidence that the Respondent either knew or should have known of the
violative condition. When asked whether he believed that the mine operator
either knew or should have known of the violative condition, the inspector
testified that it was "pretty hard to say" that the mine operator knew because
he did not believe that a noise inspection had ever been performed on the
fn. 4 (continued)
Inspector Smith testified that such controls existed in the form of
lining the cab with insulation and/or relocating the muffler and exhaust
sy·stem (Tr. 11-12). In fact, the Respondent abated the citation by relocating the muffler and by running the exhaust pipe approximately 4 to 5 feet
farther from the equipment operator's cab. The actions taken to abate the
citation achieved compliance with the standard (Tr. 12).
2_./ In this-regard, it should be noted that the standard prohibits exposure
to greater than 115 dBA.
6/ Although it is not deternii.native of the gl'.'avity issue~ it should be noted
that earplugs had been issued to the loader opet:ator.; Mr.; Childress gave
testimony which seemed .t(., indica.t.:e e:LEher_.that the loc:i.det~- operator simply was
not weariug the eaq,lngo 0r that he had lost the earplugs and had not sought
replacements from the Respondent. The Respondent has issued earplugs to its
employees several times and always keeps replacements available (Tr. 28).

2840

cited loader by the Mine Safety and Health Administration. He also testified
that it is rather difficult to detect the difference between 90 and 92 dBA by
listening to the equipment because (1) the noise survey measurements are made
over an 8-hour period; (2) the difference between 90 dBA and 92 dBA is not
very great; and (3) the type of sound involved is a variable which must be
taken into account (Tr. 24).
Mr. Childress testified that the Respondent had "no way to know about
the noise level" (Tr. 27). He also testified that the Respondent purchased
the equipment new in the late 1960's or early 1970's, that the loader was
exactly the way it was when it came from the factory, and that it had a good
muffler, a cab, doors, and glass (Tr. 27, 29). It should be noted, however,
that the windows and doors were open at the time of the inspection (Tr. 23)o
In view of the foregoing circumstances, it is found that the Petitioner
has failed to prove operator negligence by a preponderance of the evidence. 7/
The inspector testified that the Respondent was cooperative (Tr. 14)
and that the Respondent demonstrated good faith in abating the violation
(Tr. 23). Accordingly, it is found that the Respondent demonstrated good
faith in attempting rapid abatement of the violation.
The evidence presented shows that the size of the Badger Mine was rated
at approximately 69,938 man~hours in 1977, 69,089 man-hours in 1978, 57,902
man-hours in 1979, and 15,509 man-·hours as of the first 3 months of 1980
(Exh. P-1; Tr. 18)0 The inspector testified that the facility-was a mediunc·
size mine for the state of Oklahoma, but indicated that the mine would be
classified as small when compared to mine operations throughout the country
(Tr. 19). Mr. Childress testified that, as of the date of the hearing, the
mine was no longer operational because it had been shut down and the equipment sold (Tr. 29). He also testified that another mine was opened but that
it too had been shut down and all of its equipment sold (T1· o 30), The
Respondent operated two mines as of the date of the hearing, one a quarry and
the other a sand pit. The Respondent operates the sand pit only approximately
1 day per month and the sand extracted is for the Respondent's own use (Tr.
30··31). In view of the foregoing, i t is found that the Respondent is a small
operator.
7/ The inspector recorded on his inspector's statement that the loader
operator led him "to believe that he had complained to management about
excess noise on this particular machine" (Exh, P~·2) o However, the inspector never gave testimony on this point so as to explain the foundation for
this belief, and the Petitioner did not prove that the loader operator had
in fact complained to the Respondent concerning excessive noiseo 1'he state~~
ment appearing on the inspector 9 s statement is itot considered reliable
evidence that such a complaint had been lodged with the-Respondent, and
cannot form the basis for a finding that the Respondent knew or should have
known of the violative condition.

2841

The evidence presented as to the Respondent's history of previous
violations shows that the Respondent has no history of violations prior to
November 1978. The Respondent was cited for a total of 19 violations from
November 1978 through December 1980, and paid assessments for 18 of those
cited violations. The 19th violation cited, i.eo, the one for which no
assessment has been paid, is the violation which is the subject matter of
this proceeding. Of the 18 violations for which assessments have been
paid, 12 occurred prior to April 1, 1980.
It is well settled that paid assessments are the only assessments
properly included in a mine operator's history of previous violations. See
Peggs Run Coal Company, Inc., 6 IBMA. 212, 83 IoD. 245, 1976-1977 CCR OSH~
par. 20,839 (1976); Peggs Run Coal Company, Inc., 5 IBMA 144, 148-150,
82 I.D. 445, 1 BNA MSHC 1343, 1975-1976 CCH OSHD par. 20,001 (1975); Old Ben
Coal Company, 4 IBMA 198, 217-218, 82 I.D. 264? 1 BNA MSHC 1279, 1974-1975
CCR OSHD par. 19,723 (1975); Corporation of the Presiding Bi!!hop, Church o~
Jesus Christ of Latter Day Saints 9 2 IBMA 285, 80 I.Do 633, 1973-1974 CCR
OSHD par. 16,913 (1973); Valley €amp Coal Company, 1 IBMA 196, 203-204,
79 I.D. 625, 1 BNA MSHC 1043, 1971-1973 CCR OSHD par. 15,385 (1972). Additionally, only those paid assessments for violations charged prior to the
one in issue may be properly considered in determin:i,ng a mine operator's
history of previous violations. §ee Peggs Run Coal Company, Inc., 5 IBMA
144, 82 I.D. 445, 1 BNA tMSHC 1343, 1975-·1976 CCR OSHD par. 20,001 (1975).
Accordingly, I conclude that the Respondent has a history of 12 prev:f.ous
violations which are cognizable in this proceeding. I further conclude that
the Respondent·'s history of previous viqlations is f;'JOdo
The Respondent did not introduce in evidence any business-or tax records
to establish that the assessment of a civil penalty will impair its ability
to remain in business. Hall Coal Company. 1 IBMA 175, 180, 79 I.D. 668,
1 BNA MSHC 1037, 1971-1973 CCR OSHD par. 15,380 (1972); see also Davis Coal
Company, 2 FMSHRC 619, 1 BNA MSHC 2305, 1980 CCR OSHD par:-24,291 (1980)0
-It should be noted that the Respondent was specifically accorded the oppor~,
tunity to present evidence on this point, but that the Respondent declined
to do so (Tr. 29-30). Mr. Childress did testify that the Respondent has
assets (Tr. 30).
In Hall Coal Company, 1IBMA175,,79 IoDo 668, 1 BNA MSHG 1037, 19711973 CCR OSHD par. 15,980 (1972), the Federal Mine Safety and Health Review
Commission's predecessor, the Interior Board of Mine Operations Appeals,
held that evidence relating to whether a civil penalty will affect the
operator's ability to remain in business is within the operator's control,
resulting in a rebuttable pr.esump.t:lou that the operatorJs ability to continue in business will not: be affected by the assessment of a civil pen~
altyo Therefore, I find that a civil ~enalty oth~rwise properly assessed
in this proceeding willLnot imp~ir the Respondent's ability to remain in
business.
Upon consideration of~the entire record in this case and the foregoing
findings of fact and conclu~;ions of lawp I find that the assessment of a $25

2842

civil penalty is warranted for the April 1, 1980, violation of mandatory
standard 30 C.F.R. § 56.5-50(a) set forth in Citation No. 167396.
ORDER
Accordingly, IT IS ORDERED that the Respondent pay a civil penalty in
the amount of $25 within 30 days of the date of this decision.

Forrest E. Stewart
Administrative Law Judge
Distribution:
Ron Howell, Esq., Office of the Solicitor, UoS. Department of Labor,
555 Griffin Square Building~ Suite 501, Dallas, TX 75202 (Certified
Mail)
W. L. Childress, President, The Quapaw Company, P.Oo Box 72, Dumright,
OK 74030 (Certified Mail)
Administrator for M'etal and Nonmetal Mine Safety and Health, U.S.
Department of Labor
AdministTator fo1· Coal Nine '5'a:Eet.y an:Ct He":Jth? U._,_S" D::opa<:tment of Labor
Standard Dist1·ibution

2843

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENYER. COLQRADO 80204

)
)

KAISER STEEL CORPORATION,

)
)
)
)
)
)
)
)
)
)

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

DEC 2 9 1981

CONTEST OF CITATION PROCEEDING
DOCKET NO. WEST 80-494-R
Citation No. 827208; 9/23/80
DOCKET NO. CENT 81-26-R
Citation No. 827236; 9/1.4/80
MINE: York Canyon Mine No. 1

~~~~~~~~~~~~~~~~~~~~~

DECISION
APPEARANCES:
David B. Reeves, Esq., Kaiser Steel Corporation
P.O. Box 217, Fontana, California
For the Contestant,
Robert Cohen, Esq., Office of the Solicitor
United States Department of Labor, 4015 Wilson Boulevard
Arlington, Virginia 22203
For the Respondent
Before: Judge Virgil E. Vail
STATEMENT OF PROCEEDINGS
Pursuant to section 105(d) 1 / of the Federal Mine Safety and Health

1/

Section 105(d) provides as follows:
''If, within 30 days of receipt thereof, an operator of a coal or other
mine notifies the Secretary that he intends to contest the issuance or
modification of an order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or
(b) of this section, or the reasonableness of the length of abatement time
fixed in a citation or modification thereof issued under section 104, or
any miner or representative of miners notifies the Secretary of an intention to contest the issuance, modification, or termination of any order
issued under section 104, or the reasonableness of the length of time set
for abatement by a citation or modification thereof issued under section
104, the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing (in
accordance with section 554 of title 5, United States Code, but without
regard to subsection (a)(3) of such section), and thereafter shall issue an
order, based on findings of fact, affirming, modifying, or vacating the
Secretary's citation, order or proposed penalty, or directing other appropriate relief. Such order shall become final 30 days after its
issuance. The rules of procedure prescribed by the Commission shall provide affected miners or representatives of affected miners an opportunity
to participate as parties to hearings under this section. The Commission
shall tak~ whatever action is necessary to expedite proceedings for hearing
appeals of orders issued under section 104."

2844

Act of 1977, 30 U.S.C. ~ 801 et seq. (hereinafter referred to as "the
Act"), the contestant filed two separate Notices of Contest challenging the
validity of two citations issued at two different mine sites.
The contestant's motion to consolidate these two cases and expedite
the proceedings was-granted and a hearing on both cases was held in Raton,
New Mexico, on December 17, 1980.
CENT 81-26-R
STIPULATIONS
At the outset of the hearing, the parties stipulated as follows:
1.

The West York Strip mine produces 800,000 tons of coal a year.

2. The products produced at the mines enter into and affect interstate commerce.
3. That the said mine is under the jurisdiction of the Federal Mine
Safety and Health Act of 1977.
ISSUES
1.

Whether the Contestant violated safety standard 30 C.F.R.

§ 77.404(a) by operating a pickup truck after it was determined that said

truck was in an unsafe condition?
2. Whether the alleged violation was of such a nature as could
significantly and substantially contribute to the cause and effect of a
mine safety or health hazard?
FINDINGS OF FACT
1. Contestant operates a strip coal mine in the State of New Mexico
designated as the West York Strip Mine.
2. Daniel R. Martinez, safety inspector for the Mine Safety and
Health Administration, issued a citation to the contestant on September 23,
1980, for a violation of 77.404(a) as the result of an inspection of a
motor vehicle.
3. The inspection of the motor vehicle was prompted by a statement of
a representative of the miners that said vehicle was in an unsafe condition
(Tr. 10).
4. The motor vehicle inspected was a light blue pickup truck, license
number CG-7344 usually operated by Michael Stairwalt, assistant superintendent of strip operations during the day shift. The vehicle was also
driven by Rocky Sanchez on the second shift and Manuel D. Romero on the
third shift.

2845

5. A bent steering stabilizing ~ar was observed on the pickup truck
by the mine inspector.
6. During a test drive of the truck, the steering wheel and truck
would vibrate at a speed of 25 miles per hour (Tr. 14). The "shaking" of
the vehicle increased as the speed was increased (Tr. 15).
7. The mine inspector issued a 104(d)(l) citation removing the motor
vehicle from service until it was repaired. The violation was abated on
September 26, 1980 after the stabilizing bar was replaced (Tr. 21 and Exhibit 1).
8. The condition cited herein was classified by the inspector as
"significant and substantial."
DISCUSSION
Citation number 827236 2 / charges the contestant violated mandatory
safety standard 77.404(a). -The standard provides that:
Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or
equipment in unsafe condition shall be removed from service
immediately.
Further, the inspector issued the above citation pursuant to section
104(d)( 1) of the Federal Mine Safety and Health Act of 1977 which provides
as follows:
If, upon any inspection of a coal or other mine, an authorized
representative of the Secretary finds that there has been
a violation of any mandatory health or safety standard, and
if he also finds that, while the conditions created by such
violation do not cause imminent danger, such violation is of
such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard, and if he finds such violation
to be caused by an unwarrantable failure of such operator
to comply with such mandatory health or safety staridards,
he shall include such finding in any citation given to the
operator under this Act. If, during the same inspection or
any subsequent inspection of such mine within 90 days after
the issuance of such citation, an authorized representative
of the Secretary finds another violation of any mandatory
health or safety standard and finds such violation to be also

2/ Citation No. 827236 states as follows:
The light-blue Ford truck (N.M. license No. CG-7344) used on the mine
property for transportation of Mike St~irwalt was not maintained in a safe
operating condition. The stabilizing jack for the steering of the truck
was bent and the truck would shake at speeds ranging from 25-45 miles per
hour. Mike Stairwalt stated he knew the violation existed.

2846

caused by an unwarrantable failur= of such operator to so
comply, he shall forthwith issue an order requiring the
operator to cause all persons in the area affected by such
violation, except those persons referred to in subsection
(c) to be withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the Secretary
determines that such violation has been abated.
The contestant in its Notice of Contest alleged, inter alia, (1) that
no violation of the cited mandatory standard existed to support the
issuance of the citation; (2) that the citation was improper since the
alleged violati-on was not "caused by unwarrantable failure" of contestant
to comply with the cited standard or any other mandatory health or safety
standard; and (3) that the conditions set forth in the citation were not
"of such nature as could significantly and substantially contribute to the
cause and effect of a mine safety or health hazard." An answer was filed
by the Mine Safety and Health Administration (MSHA) on October 29, 1980.
The facts in this case, as developed through the testimony of the
witnesses, do not support the contestant's position regarding the violation
of the standard. It was uncontroverted that the pickup truck cited herein
would "vibrate and shimmy" at speeds over 25 miles per hour. The testimony
of Mike Stairwalt, contestant's assistant superintendent of Strip
Operations, who operated this vehicle on his shift, testified that the
pickup had a bent stabilizer on the front and that the part was on order
(Tr. 38). During the test drive, Stairwalt was driving the pickup
accompanied by the mine inspector and testified that the vehicle started to
"shake" around 27 and 28 miles per hour. He then stated as follows: 11 1
slowed it down and got it back under control and drove it back up and
turned it around and came back down, and the second time it started to
shimmy was probably 45 miles per hour" (Tr. 39).
The question here is whether this pickup continued to be used and
driven by the miners after it developed the unsafe condition referred to in
safety standard 77.404(a). The bent stabilizing bar, as part of the
steering mechanism of this pickup truck, caused it to vibrate and shake at
speeds over 25 miles per hour. This had the potential of causing the
driver to loose control of the vehicle and either collide with other
vehicles or roll. over. Either occurrence would endanger the health and
safety of the driver or other miners in the area. This obviously was an
unsafe condition, and the standard requires that the equipment be removed
from service.
The contestant. argues that the condition is not different from other
mechanical defects of vehicles, such as broken head lights, faulty
windshield wipers, etc. I find a distinct difference between these items
and the more essential parts of a vehicle such as brakes and .the steering
mechanism involved herein.

2847

The subject 104(d)(l) citation contains the allegation that the cited
condition was caused by the contestant's unw~rrantable failure to comply
with mandatory safety standard 30 C.F.R. § 77.404(a). A violation of a
mandatory health or safety standard is caused by an unwarrantable failur~
to comply where "the operator involved has failed to abate the condition
or practices the operator knew or should have known existed or which it
failed to abate because of a lack of due diligence, or because of
indifference or lack of reasonable care" Zeigler Coal Company, 7 IBMA 280,
295-296, 84I. D-127, I BNA MSHC 1518, 1977-1978 CCH OSHD par. 21, 676
(1977). The findings of fact as set forth in this decision clearly show
that the contestant, through its' employees, knew of the damaged part on
the cited pickup truck and failed to abate this violative condition by removing said truck from service. Accordingly, it is found that the
violation wa·s caused by the contestant's unwarrantable failure to comply
with mandatory safety standard 30 C.F.R. § 77.404(a).
The citation contains the allegation that the violation was of such
nature as could significantly and substantially contribute to the cause and
effect of a mine safety or health hazard. In National Gypsum Company, 3
FMSHRC 822, 2 BNA MSHC 1201, 1981 CCH OSHD par 25, 294 (1981), the Review
Corrnnission held "that a violation is of such 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 the
violation, there exists a reasonable likelihood that the hazard contributed
to will result in an injury or illness of a reasonably serious nature." 3
FMSHRC at 825. Additionally, the Review Corrnnission stated that "[a]lthough
the [1977 Mine Act] does not define the key terms 'hazard' or 'significantly and substantially,' in this context we understand the word 'hazard'
to denote a measure of danger to safety or health, and that a violation
'significantly and substantially' contributes to the cause and effect of a
hazard if the violation could be a major cause of a danger to safety or
health. In other words, the contribution to cause and effect must be
significant and substantial." 3 FMSHRC at 827. (Footnote omitted).
The particular facts surrounding the violation involved herein reveal
that the condition of the steering mechanism on the pickup truck could have
been a major cause of a serious accident with a reasonable likelihood that
it would result in an injury of a reasonably serious nature. Accordingly,
I conclude that the violation was of such a nature as could significantly
and substantially contribute to the cause and effect of a mine safety or
health hazard.
Accordingly, IT IS ORDERED that the contestant's contest in Docket No.
CENT 81-26-R be, and hereby is DENIED, and that Citation no. 827236 be, and
hereby is AFFIRMED.
WEST 80-494-R
This proceeding was initiated by the contestant filing a Notice of
Contest pursuant to section lOS(d) of the Federal Mine Safety and Health

2848

Act of 1977, 30 U.S.C. § 801 et seq. (1978) 3 / to contest the issuance of
Citation No. 827208, dated September 23, 1980. The citation alleged that
the contestant failed to follow its approved roof control plan in violation
of 30 C.F.R. 75.200. Specifically, it alleged that miners were allowed to
proceed a gistance of 12 feet beyond permanent support and under temporary
supports._/
STIPULATIONS
The parties stipulated that the contestant's York Canyon No. 1 Mine is
a large, underground, coal mine and is under the jurisdiction of the
Federal Mine Safety and Health Act of 1977 (Tr. 68). Also, stipulated to
and received into evidence were the following Exhibits:
Government Exhibit No.
and Abatement
Government Exhibit No.
Government Exhibit No.
Contestant Exhibit No.
section
Contestant Exhibit No.

1 : Citation No. 827208, Modification,

2: Roof Control Plan
3: Drawing of Entry 1 and 2, ten left section.
l : Drawing of Entry No. l and 2, ten left
2: Ins_pectors notes and drawing of area.

FINDINGS OF FACT, DISCUSSION AND CONCLUSION
The question of whether or not there was a violation of 30 C.F.R.
75.200 centers around an interpretation of this section of the Act and
several provisions of the contestant's roof control plan. Section 75.200
provides as follows:
Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system
of each coal mine and the means and measures to accomplish
such system. The roof and ribs of all active underground
roadways, travelways, and working places shall be supported
or otherwise controlled adequately to protect persons from
falls of the roof or ribs. A roof control plan and revisions
thereof suitable to the roof conditions and mining system of
each coal mine and approved by the Secretary shall be adopted
and set out in printed form on or before May 29, 1980. The
plan shall show the type of support and spacing approved by
the Secretary. Such plan shall be reviewed periodically, at

1

3/

See footnote No. 1.

4/

Citation No. 827208 alleges the following:

The roof control plan was not been complied with in that miners (jack leg
drillers) were allowed to proceed beyond the last permanent support for a
distance of 12 feet under temporary supports to drill 5 - 6 foot holes and
shot down 3 to 4 feet of top sandrock to allow for height in the No. 1 room
in the 10 feet section, I.D. No. 008-0. This was conducted during the
third shift.

2849

least every 6 months by the Secr~tary, taking into consideration any falls of roof or ribs. No perso~ shall proceed beyond the last permanent support unless adequate-temporary
support is provided or unless such temporary support is not
required under the approved roof control plan and the absence
of such support will not pose a hazard to the miners. A copy
of the plan shall be furnished to the Secretary or his authorized representative and shall be available to the miners
and their representatives. [Emphasis added.]
MSHA mine inspector Anthony Duron testified that he congucted a
regular safety and health inspection during the "grave yard" I shift at
the contestant's York Canyon Mine No. 1 on September 23, 1980. While
accompanying the fire boss on his tour of the mine, the inspector observed
what he described as something wrong in the No. 1 entry of the ten left
section (Tr. 75 and 76). A sign was posted near the last permanent roof
supports in the No. 1 entry saying "unsupported roof." Further investigation by the inspector indicated that there was a distance of
approximately 19 feet from the last permanent support to the working face
(Tr. 95).
Inspector Duran testified that the mining sequence followed in this
two entry section was to first have the continuous miner cut a 20 foot cut,
approximately four foot high or the height of the coal seam. This is done
under permanent roof supports. Then the continuous miner moves to the
other entry while the "jack leg drillers 116 / come into the area vacated by
the continuous miner and "drills" and "shoots" 7/ the sandrock overlay or
cap which is approximately 4 foot thick. When-cleaned out, the entry is
then approximately 8 feet high so other equipment and machinery can enter
(Tr. 99 and 100).
The inspector testified that the jack leg or drill is operated by two
miners. One miner, described as a helper, will hold the end of the "bit"
at the face while the operator proceeds to move the drill forward on its
hydraulic leg towards the face to drill a 6 foot hole to receive the
explosives. In this instance, the operator starts approximately six feet
from the face due to the six foot steel or drill (Tr. 100). Under normal
procedures, the helper and operator of the drill are under supported roof,

5/ The night shift usually beginning at 11 or 12 p.m. and relieved by the
day shift.
6/ An operator of a compresses-air, percussion type rock drilling machine
mounted on a leg called a jack.
7/

To break coal or rock away from seam with explosives.

2850

as the roof bolter will have previously installed permanent roof supports
up to at least five foot of the working face of the entry. If it is over
five feet away from the face, temporary supports wil 1 be placed to support
the roof (Tr. 101).
Inspector Duran testified that what he saw as an "unusual situation"
was that the "jack leg" operators had gone in under temporary supports in
entry No. 1 to drill the overlay of rock. He concluded this from observing
that there was a distance of 12 feet from the last permanent support to the
area where drilling and shooting had occurred and then the additional 6
foot of rubble which showed that the area had been drilled and "shot"
(Government's Ex. No. 3 and Tr. 102). Duran testified that in his opinion,
the operator and helper would have been under temporary and then
unsupported roof (Tr. 102). There were three temporary jacks installed as
shown on Contestant's Exhibit No. 1 as "x" and on Government's Exhibit No.
3 as 11 0 11 • Two additional temporary supports were observed laying in the
last open cross cut near the continuous miner (Government's Ex. 2 and Tr.
124).
Pertinent parts of the contestant's approved roof bolting plan described the roof bolting sequence as follows:
Page 6-3 (a) Upon completion of the loading cycle, a reflectorized warning device, such as a "stop" sign, shall be
conspicuously placed to warn persons approaching any area that
is not permanently supported. It is to be emphasized that the
warning device has been placed to cause the person to stop, examine, and evaluate the roof and rib conditions prior to entering the area--even after temporary supports have been installed.
(b) Where required, temporary supports shall be installed immediately after the loading cycle is completed unless roof bolting machines are equipped with acceptable automated temporary
supports.
(i) Except when the District Manager has determined that
more than 5 minutes are needed, "irmnediately" is interpreted to mean that the installation of such temporary
supports shall be started no later than 5 minutes after
mining of the cut is completed and, after the installation
of such sup~orts is started, the installation of supports
shall be continued until at least the minimum number are
installed as required in the approved plan. If the installation of permanent supports is not started within
60 minutes after the loading cycle is completed, temporary
supports shall be installed in the entire cut on 5 foot
centers.
Page 7 (c) Only those persons engaged in installing temporary
supports shall be allowed to proceed beyond the last row of
permanent supports until temporary supports are installed. Before any person proceeds inby permanently supported roof, a
thorough visual exaITTination of the unsupported roof and ribs
shall be made. If the visual examination does not disclose any
hazardous condition, persons proceeding inby permanent supports

2851

for the purpose of testing the roof by the sound and
vibration method and installing supports shall do so with
caution and shall be within 5 feet (less if indicated on
sketch Nos. D) of a temporary or permanent support. If
hazardous conditions are detected, corrective action shall
be taken to give adequate protection to the workmen in the
area involved.
4. When installing permanent supports, temporary supports may be
repositioned in the sequence indicated on the attached sketch (Nos. C).
However, if it is necessary to remove temporary supports (other than those
specified above) before permanent supports are installed, such temporary
supports shall be removed by some remote means, or another temporary
support shall be installed in such a manner that the workman removing the
support remains in a supported area. Means of removal of such supports
shall be approved by the District Manager.
5. Work such as extending line curtains, other ventilating devices or
making methane tests inby the roof bolts shall not be done unless a minimum
or two temporary supports are installed. This minimum is applicable only
if they are within 5 feet of the face or rib and the work is done between
such supports and the nearest face or rib. Other methods of providing
temporary supports for this work will be accepted if equivalent protection
is provided.
6. Where rehabilitation work is being done, the following temporary
support pattern shall apply:
a. Where bolts are being replaced in isolated
instances (such as where equipment has knocked bolts
loose) one temporary support shall be installed within
a radius of 4 feet from each bolt to be replaced.
b. Where crossbars or roof bolts are being ins·talled
in an area where roof failure is indicated, a minimlllll
of two rows of temporary supports shall be installed
on not more than 5 foot centers across the place so that
the work in progress is done between the installed temporary supports and adequate permanent supports in sound roof,
7. (a) Where loose material is being taken down, a minimum of two
temporary supports on not more than 5 foot centers shall be installed
between the miner and the material being taken down unless such work can be
done from an area supported adequately by permanent roof supports.
(Emphasis added).
Section 75.200 requires a mine operator to adopt and maintain a roof
control plan suitable for its mine and it is well settled that any
violation of the approved plan is a violation of Section 75.200, Peabody
Coal Company,8 IBMA 121 (1977) and Affinity Mining Company, 6 IBMA 100
0976).

2852

Citation No. 827208 contains a d~scription by ti1e inspector of what
condition or practice he considered caused a violation of Section 75.200.
It states in part: "The roof control plan was not complied with in that
miners (Jack leg drillers) were allowed to proceed beyond the last
permanent support for a distance of 12 feet under temporary supports to
drill ..• " (Government's Exhibit No. 1). A further understanding of the
inspector's interpretation of how the roof control plan was violated is
provided in a review of the following transcript colloquy at pages 120,
121, and 122:
Mr. Reeves (Contestant's counsel): Mr. Duran, did you issue the
citation because you believed the roof control plan was not being
complied with?
Mr. Duran (MSHA inspector): Yes.
Mr. Reeves: Was the company violating a specific section?
Mr. Duran: 75.200.
Mr. Reeves: Was the company violating a specific section of its
roof control plan?
Mr. Duran: Yes.
Mr. Reeves: What section is that?
Mr. Duran: That is Page 7, Item C.
Mr. Reeves: Item C at the top?
Mr. Duran: Yes.
Mr. Reeves: Was that the only section that was violated?
Mr. Duran: Yes.
Mr. Reeves: If that section had not been violated, you would not
have issued a citation, is that correct?
Mr. Duran: I didn't quite get that question.
Mr. Reeves: If that Section C on Page 7 had not been violated, then
you would have not issued a cit at ion; is that correct?
Mr. Duran: I might have not.
Mr. Reeves: Is it your testimony, that you issued the citation
because you believed the company was in violation of Section C on
Page 7?
Mr. Duran: Yes.

2853

Mr. Reeves: ls it your testimony that you believed the company was
in violation of any other section?
Mr. Duran: No, only to allow people to go in by the last permanent
support.
Mr. Reeves: Well, you issued the citation because you believed the
company was in violation of its roof control plan?
Mr. Duran: Yes.
Mr. Reeves: And is it correct, that the only section you believed
the company violated was Section C, which is found on Page 7?
Mr. Duran: Yes.
Mr. Reeves: I would like you to examine Section Con Page 7 and tell
us how the company violated that section?
Mr. Duran: "Only those persons engaged in installing temporary
supports shall be allowed to proceed beyond the last row of permanent
supports."
Mr. Reeves: Does your copy have a period there, or does it go on?
Mr. Duran: No, it don't.
Mr. Reeves: It continues on to say "until temporary supports are
installed."
Mr. Duran: Until temporary supports are installed.
Mr. Reeves: What about the second section, did the company violate
that?
Mr. Duran: I do not know that.
Mr. Reeves: And the third sentence, did the company violate that?
Mr. Duran: I cannot answer because I didn't observe that.
Mr. Reeves: And the fourth sentence, did the company violate that?
Mr. Duran: We are talking about No. 4.
Mr. Reeves: The fourth sentence of Paragraph Con Page 7?
Mr. Duran: I cannot answer that either because I don't know they
would have found hazardous conditions.

2854

Mr. Reeves: I would like to direct your attention to Sketch A.
the company violate Sketch A in some fashion?

Did

Mr. Duran: Yes, they did.
Mr. Reeves: And the provisions of Sketch A, did they violate that?
Mr. Duran: The last permanent support was over four foot as required
of the working face.
Mr. Reeves: What particular sentence are you referring to?
Mr. Duran: I'm referring to the maximum distance from the last roof
bolts to the face shall equal four feet before continuous mining
starts.
Mr. Reeves: Wasn't the last permanent support within four feet of the
face before the continuous mining started?
Mr. Duran: I cannot answer that, because I didn't observe the mining
cycle.
Mr. Reeves: Do you know that it wasn't?
Mr. Duran: No, I don't.
Mr. Reeves: So you can't say the company violated that?
Mr. Duran: No, sir.
Mr. Reeves: When is the loading cycle completed?
Mr. Duran: In this particular condition, I would say when the loading
cycle is completed is when the rock is cleaned up.
Mr. Reeves: And you saw the rock hadn't been cleaned up?
Mr. Duran: No, sir.
Mr. Reeves: Would you say the loading cycle had not been completed?
Mr. Duran: In this particular condition, I would say, yes.
Mr. Reeves: Did the company violate Sketch B in any way?
Mr. Duran: I would say, no.
Mr. Reeves: Did the company violate Sketch C in any way?
Mr. Duran: I would say, yes.

2855

Mr. Reeves: And a particular prov1s1on was violated?
Mr. Duran: In that only three temporary jacks were used.
Mr. Reeves: Do you know how many were used?
Mr. Duran: No, I don't.
Mr. Reeves: So maybe more than three were used; 1s that correct?
Mr. Duran: That 1s possible.
Mr. Reeves: So you don't know how many were used?
Mr. Duran: I only seen two, and I won't say they were not there.
They were thrown over by the miner if they did use temporary
supports there was only two that I could observe at the time of the
citation.
Mr. Reeves: Is that why you wrote the citation, because you believe
only two temporary jacks were used?
Mr-. Duran: No, I wrote the violation because people were allowed to
go in by the last permanent support under the temporary support.
Much of the trial time in this case involved questioning the inspector
as to his interpretation of how the roof control plan and Section 75.200
was violated. The sole issue appears to be that miners were allowed to go
in by the last permanent support to advance the working face under
temporary supports (Tr. 97 and 126).
In earlier testimony, the inspector indicated that it was usual
practice for the miner's helper to go beyond the permanent roof support,
and under temporary supports to hold the end of the drill bit near the face
(Tr; 101). Also, testimony was given that the "fire boss" was permitted to
go to the entry and check for methane under temporary support. At the
conclusion of the Secretary's case he argues that, although the plan does
not specifically address this particular situation, it is obvious from
tradition and from the inferences drawn from the plan itself, that this
type of activity is prohibited (Tr. 150).
If, as the Secretary argues, the Contestant's roof control plan or
Section 75.200 does not address this particular situation, and the
Secretary is relying on "tradition" or "inference" then an ambiguity exists
here. In a similar case where the documents resulted in an absolute
ambiguity in the points which were the crux of the case, it was determined
that MSHA has a duty to immediately make an effort to clarify the plan so.
that no quest ion exists in the future as to what is required for the safety
of the miners. Secretary of Labor v. Penn Allegh Coal Company, Inc.,
Docket No. PITT 79-190-P; (February 28, 1979), 1 MSHC 2028.

2856

The roof control plan and Sectio11. 75.200 both provide that only those
persons engaged in installing temporary supports shall be allowed to
proceed beyond the last row of permanent supports until temporary supports
are installed. After careful review of this approved roof control plan, I
am persuaded that there are no specific restrictions that would notify the
contestant that the activity described in the citation in this case was
either a violation of the plan or Section 75.200.
At the con~lusion of the presentation of the Secretary's case, Contestant moved for a summary judgment on the grounds that the Secretary had
not established a prima facie case in that the Secretary failed to prove
that the Contestant did not follow the approved roof control plan and
violated Section 30 C.F.R. 75.200.
At the hearing, I granted the Contestant's Motion and ordered that
Citation No. 827208 be vacated. That bench decision is hereby AFFIRMED.
Accordingly, it is ORDERED that the Citation is VACATED and the case
DISMISSED.

v~ cf. ~
Administrative Law Judge
Distribution:
Robert Cohen, Esq.
Office of the Solicitor
United States Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22203
David B. Reeves, Esq.
Kaiser Steel Corporation
P.O. Box 217
Fontana, California 92335

2857

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

NICHOLAS RAMIREZ,
Complainant

DEC 2 9 J98J

Complaint of Discharge,
Discrimination or Interference

v.
Docket No. WEVA 81-248-D
W-P COAL COMPANY,
Respondent

No. 21 Mine

DECISION
Appearances:

Larry Harless, Esq., Charleston, West Virginia, on behalf
of Complainant;
Harold S~ Albertson, Esq., Hall, Albertson and Jones,
Charleston, West Virginia, on behalf of Respondent.

Before:
I.

Judge Stewart
•
Procedural Background

This is a discrimination or interference proceeding arising under section lOS(c) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et~· (hereinafter, the Act).
Nicholas Ramirez (Complainant) alleges that W-P Coal Company (Respondent) committed acts of discrimination or interference in violation of
section lOS(c)(l) of the Act. The complaint was filed before the Federal
Mine Safety and Health Review Commission (Commission) pursuant to section
105(c)(3) of the Act following the Complainant's receipt of a written
notification of the Secretary of Labor's determination that no violation
of section lOS(c)(l) occurred. };/
};/ The Complainant, acting pro se, filed various documents between January 28,
1981, and March 16, 1981, which collectively constitute the complaint of discrimination or interference. All documents, except the one filed on January 28,
1981, were filed in response to various orders to show cause issued by Chief
Administrative Law Judge James A. Broderick. The Respondent's answer was filed
on April 3, 1981.
It is undisputed that the Complainant was not suspended or discharged by
the Respondent (~, ~·_&•, Tr. 67). The claim, as set forth in the various
documents constituting the complaint, is one of discrimination or interference
not entailing suspension or discharge.

2858

The hearing in this matter was held on June 17, 1981, in Charleston,
West Virginia, with representatives of both parties present and participating. The Complainant called three witnesses: Nicholas Ramirez, Charles
Blankenship, and Thomas Marcum. The Respondent called one witness, Kenneth
Cooper. Both parties submitted posthearing briefs.
II.

Findings of Fact and Conclusions of Law

The Complainant has been employed as a roof bolter at the Respondent's
No. 21 Mine for over 4-1/2 years.
When the Complainant arrived on the Second South Section on November 5,
1980, he was directed by one of his supervisors, William Meade, .to drill test
fn. 1 (continued)
One of the documents which is part of the complaint is a copy of a
February 2, 1981, letter from the Complainant to the Respondent addressed to
the attention of Mr. Joe. Bragg, foreman; Mr. Ray Herndon, superintendent; and
Mr. Kenneth Cooper, general manager. The letter advises the Respondent of the
Complainant's disagreement with the Secretary of Labor's determination that no
violation of section 105(c) occurred, and states that the Complainant has
"requested that the [Convnission] review my case." The letter further states
that "I have filed this complaint because of your (Mr. Cooper's) decision to
have me discharged because of my opinion (requested by MSHA Mine Inspector)
on roof conditions on my section."
Another document which is part of the complaint is a February 23, 1981,
letter from the Complainant to the Commission which states, in part, as
follows:
"The company more or less requested that I keep quiet on safety or loose
[sic] my job. I feel that I was wronged in picking me as a guinny [sic] pig
t~how the other men (union members) what could happen to them if they spoke
up on safety problems.
"I was not the person who requested the safety inspection, but I was the
one who they threatened to punish for it. If these practices by the company
continue, I fear not only for the safety of myself but for my fellow workers
who will be reluctant to report safety violations for fear of their jobs."
Another document which is part of the complaint is a March 12, 1981,
statement by the Complainant setting forth a detailed statement as to the
facts upon which the claim of discrimination or interference is based. In
the statement, the Complainant maintains that "I fear not only for myself but
[also] for my fellow workmen who must work under the fear of being punished
for reporting safety violations."
As to the relief requested, the February 23, 1981, letter requested
"$20,000 in damages for myself and my family stemming from the pressures put
on us by the company (W-P Coal Co.)." The posthearing brief filed by the
Complainant, acting through counsel, requests that the "complaint be upheld;
that the company be required to post appropriate notices; that reasonable
attorney fees and other costs incident to this matter be awarded; and that
Your Honor grant such other and further relief as seems proper and just."

2859

holes in the Nos. 1 and 2 Entries. The test drilling confirmed reports that
the roof therein was bad. Mr. Meade then directed the Complainant to bolt
No. 3 Entry at 3 Left Break. Upon entering that area, the Complainant
observed a board lying in the break which read "needs six foot bolts." After
the Complainant drilled test holes in the No. 3 Entry, he discovered that
the roof had broken at 5 feet and conveyed this information to Mr. Meade.
Mr. Meade ordered the Complainant to proceed elsewhere.
Before the Complainant left the area, Joe Bragg, the assistant min~ foreman, ordered him to drill yet another test hole. Mr. Bragg then ordered the
Complainant to bolt the area with 30-inch bolts. The Complainant questioned
Mr. Bragg's decision, pointing out that the roof was broken, but Mr. Bragg
responded "we'll take care of it later on." The Complainant performed the
work as ordered until Mr. Meade returned and ordered the Complainant to work
elsewhere.
Federal mine inspector Thomas Marcum conducted a regular inspection at
the Respondent's No. 21 Mine on November 5, 1980. While conducting this
inspection, he was informed, during a telephone conversation with his supervisor, of a complaint that had been made during the earlier shift concerning
the roof conditions in the Nos. 1 and 2 Entries on Second South Section. He
proceeded to the Second South Section accompanied by Charles Blankenship, the
chairman of the local UMWA safety committee and an employee of the Respondent,
Mr. Hawkins, the Respondent's safety representative, and Ray Herndon, the
superintendent of the Respondent's property in West Virginia. After a number
of test holes were drilled in the roof and it was confirmed that the roof in
the two entries had broken, the inspection party discussed the alternative
methods for supporting the roof. Inspector Marcum, Mr. Blankenship, and
management ultimately agreed that the use of straps, headers, legs, and pins
would be appropriate. After this agreement had been reached, Inspector
Marcum asked the Complainant for his opinion. The Complainant replied that
he did not think that the methods proposed would be safe. As a consequence,
Inspector Marcum decided to call in a Mine Safety and Health Administration
(MSHA) roof-control specialist and obtain his opinion. Management agreed,
dangered off the Nos. 1 and 2 Entries and directed that work continue only
on the left side of the mine.
Before the inspector left, the Complainant informed him of the conditions in the No. 3 Entry at 3 Left Break, including Mr. Bragg's instruction
that 30-inch roof bolts be used. Inspector Marcum thereafter told Mr. Bragg
that he wished to speak with him outside.
If the roof conditions were discussed by Inspector Marcum and mine
management either on the way out of the mine or upon reaching the surface,
they did so casually. Inspector Marcum, Mr. Blankenship, Mr. Hawkins,
Mr. Herndon, and Mr. Kenneth Cooper gathered in the trailer which served
as the mine office. Kenneth Cooper was the general manager of the Respondent's property in West Virginia. Inspector Marc tnn, Mr. Blankenship, and
Mr. Hawkins were in one office, either filling out forms or eating lunch.
Messrs. Herndon and Cooper went into the adjoining office, closing the door

2860

behind them. These two remained in that office for approximately 5 to
10 minutes. Inspector Marcum testified that some loud talking went on in
Mr. Cooper's office, but that he did not recall anything that was said.
After Mr. Herndon left Mr. Cooper's office, and while Mr. Blankenship
sat approximately 3 to 5 feet from the door eating his lunch, Mr. Blankenship
overheard Mr. Cooper make a telephone call and ask for Cleve Campbell,
Director of Public Relations for Picketts and Mathes Company.
Mr. Blankenship heard Mr. Cooper say that "one man has the whole operation
shut down up here".and asked i f he had grounds to discharge him.
Mr. Blankenship, who testified that Mr. Cooper talked on the telephone in
a "hollering manner," believed that Kenneth Cooper intended for him to
overhear the conversation.
Mr. Cooper testified that he called Cleve Campbell because he felt that
management "had exercised every option." Mr. Cooper knew Mr. Blankenship
was in the adjoining office but the telephone call was not staged for
Mr. Blankenship's benefit. Although Mr. Blankenship testified that the
office door was open, the testimony of Mr. Cooper and that of the disinterested witness Inspector Marcum that the door was closed is more persuasive.
However, notwithstanding the fact that the office door was closed, Mr. Cooper
testified that he has no doubt that Mr. Blankenship overheard the conversation
because the office door was thin.
Mr. Cooper called Mr. Campbell because he believed that the Complainant
had caused a drop in production. Mr. Campbell told Mr. Cooper to get the
facts, weigh them and make a decision. When the shift ended, Mr. Cooper
asked his foremen whether they had directed the Complainant to pin the
affected area and was told that they had not. Because the Complainant had
not disobeyed orders, Mr. Cooper felt that he did not have grounds to
suspend him with intent to discharge. Mr. Cooper testified that "that was
the end of it." 2/
When the shift concluded, the Complainant found Mr. Bragg waiting for
him in the parking lot. Mr. Bragg asked the Complainant what he had told
Inspector Marcum. The Complainant responded that he had told Inspector
Marcum what Mr. Bragg had ordered him to do. Mr. Bragg then accused the
Complainant of lying. The Complainant responded that he would not lie for
Mr. Bragg to keep Mr. Bragg out of trouble because Mr. Bragg knew that what
he did was wrong.
2/ There is some uncertainty in the record as to whether Mr. Cooper received
accurate information when the inspection party returned to the surface. The
Complainant had informed Inspector Marcum that Mr. Bragg had instructed him
to install 30-inch roof bolts in the No. 3 Entry at 3 Left Break. However,
Mr. Cooper may have been told, or he may have concluded from what he was
told, that the Complainant had been ordered to bolt the roof in the Nos. 1
and 2 Entries. However, it is clear that the Complainant was never ordered
to install roof bolts in the Nos. 1 and 2 Entries.

2861

Mr. Blankenship observed Joe Bragg and the Complainant in the parking
lot. Mr. Blankenship testified that Mr. Bragg was "kind of yelling." However, Mr. Blankenship did not hear what was said. After Mr. Bragg left,
Mr. Blankenship informed the Complainant of the telephone call and stated
that he would contact Richard Cooper, the union safety representative, for
assistance.
On the following day, an inspection party comprised of Inspector Marcum,

Mr. Alitzer (Inspector Marcum's supervisor), Mr. J. C. Wharf (an MSHA roofcontrol specialist), Mr. Griffin (a state roof-control man), Richard Cooper,
the Complainant, Clifford Tomlin (the Complainant's helper), Mr. Herndon,
Mr. Meade, Mr. Bragg, and Mr. Blankenship returned to the Second South Section. Kenneth Cooper did not enter the mine. Earlier that morning, Kenneth
Cooper was asked by Mr. Alitzer if somebody was "going to lose their job
over this." Mr. Cooper responded to the question by asking Mr. Alitzer what
he was referring to. Mr. Alitzer then said "We're here because we heard
somebody was going to be discharged." Mr. Cooper stated that no one was to
be discharged.
The inspection party observed the condition and discussed resolution of
the problem. They agreed among themselves that the area should be supported
with 5-foot roof bolts, and with "headers and legs." }_/ This conclusion was
the same as that reached on November 5. The miners working in the area were
called together and asked if they thought this would be safeo No one
responded. Mr. Wharf then asked the Complainant what he thought of this
method of supporting the roof. The Complainant responded with the following
statement: "Well, I heard the company was trying to fire me yesterday for
what I had suggested or the statement that I had made and I don't want to
say anything about it today."
One week later, Ray Herndon approached the Complainant while the
Complainant and his helper, Clifford Tomlin, were putting up headers and were
roof bolting. There were four or five other union men in the area helping to
put up the headers. Mr. Herndon watched the work for a while and then asked
the Complainant who had told him that the company was trying to fire him. The
Complainant "didn't say anything." Mr. Meade, who was present at the time,
said, "Well, I guess he don't want to tell you Ray; he's not saying anything."
The Complainant replied, "No, I don't." Herndon then said, "Well, there must
be something wrong with you." The Complainant replied, "No, Ray. There's not.
What's wrong up here is bad management; you've got bad management up here."
Mr. Herndon "got kind of mad at that." The Complainant "just went about his
job and started to bolt the headers." Mr. Herndon ordered Clifford Tomlin to
shut the machine off, but the Complainant turned the machine off before Tomlin
could do so. Mr. Herndon told the Complainant that, if the conditions were

}_/

Mr. Blankenship testified that the Nos. 2 and 3 Entries were timbered off
as a result of the November 6, 1980, inspection. He further testified that
mining continued in the No. 1 Entry which was headered and timbered, and that
"forty-some inch" pins were used to bolt the No. 1 Entry.

2862

as bad as the Complainant thought, he should find employment somewhere else.
Mr. Herndon stated that the Complainant was given his job through Pedro Mendez,
a night foreman at the mine who was a distant relative of the Complainant. 'lb.e
Complainant interpreted the statement as implying that he was somehow indebted
to the company for hiring him, and he responded by stating, "Well, what does
that mean, Ray; am I supposed to kiss your butt or something for it * * *·"
When Mr. Herndon attempted to continue arguing, the Complainant did not say
anything in response because he felt that Mr. Herndon was trying to "start
something up." This opinion as to Mr. Herndon' s motive stemmed from the
Complainant's belief that the Respondent was attempting to discharge him.
The Complainant finished his shift.
Mr. Herndon reported this incident to Mr. Cooper. He stated that he had
gone to the Complainant because he "want[ed] things to be different" but when
he attempted to talk with the Complainant, the latter began cursing and said
that he was not a fit mine manager; that the Complainant had called Mr. Herndon
a liar in the presence of other miners but, when questioned, had failed to
identify the occasions on which Mr. Herndon had lied. Mr. Herndon also told
Mr. Cooper that he wanted to bring suit against the Complainant because he
felt that the statements jeopardized his job. Mr. Cooper advised Mr. Herndon
to simply forget the incident.
Section lOS(c)(l)•of the Act- provides as follows:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject
to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under
or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of
the miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine, or because
such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential
transfer under a standard published pursuant to section 101
or because such miner, representative of miners or applicant
for employment has instituted or caused to be instituted any
proceeding under or related to this Act or has testified or
is about to testify in any such proceeding, or because of the
exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any
statutory right afforded by this Act.
In order to establish illegal discrimination or interference within the
meaning of section lOS(c)(l) of the Act, the Complainant must prove by a
preponderance of the evidence: (1) that he engaged in protected activity,
and (2) that an adverse action was taken against him which was motivated in

2863

any part by the protected activity. Secretary of Labor ex rel. David Fasula
v. Consolidation Coal Company, 2 FMSHRC 2786, 2 BNA MSRC 1001, 1980 CCR OSRD
par. 24,878 (1980), rev'd. on other grounds sub nom. Consolidation Coal
Company v. Marshall, No. 80-2600 (3rd Cir., filed October 30, 1981);
Secretary of Labor ex rel. Thomas Robinette v. United Castle Coal Company,
3 FMSHRC 803, 2 BNA MSRC 1213, 1981 CCR OSRD par. 25,287 (1981); Secretary
of Labor ex rel. Johnny N. Chacon v. Phelps Dodge Corporation, No. WEST
79-349-DM (FMSHRC, filed November 13, 1981).
The Complainant maintains in his posthearing brief that he engaged in
protected activity on November 5, 1980, when he voiced his disagreement with
the decision reached by Inspector Marcum and the other members of the inspection party regarding correction of the roof problems in the Nos. 1 and 2
Entries. The Complainant argues that the Respondent's management employees
reacted to such protected activity in such a fashion as to discriminate
against him and interfere with the exercise of his statutory rights under
the Act; and that such unlawful discrimination or interference can reasonably be expected to have a chilling effect on the exercise of statutory
rights by other miners in that they will be deterred either from reporting
safety violations or from expressing their concerns over safety matters.
The initial question presented is whether the Complainant engaged in
protected activity on No~ember 5, 1980. The evidence establishes three
separate instances of protected activity occurring on that dayo The first
instance of protected activity occurred when the Complainant questioned
Mr. Bragg's decision to use 30-inch roof bolts iI1 the Noo" 3 Entry of the
Second South Section. The second instance occurred when the Complainant
voiced his disagreement with the decision reached by Inspector Marcum and
the other members of the inspection party regarding the roof problems in
the Nos. 1 and 2 Entries. In challenging the proposed solution, the
Complainant engaged in protected activity. 4/ The third instance of protected activity occurred when the Complainant informed Inspector Marcum of
the roof conditions in the No. 3 Entry and of Mr. Bragg's instructions to
use 30-inch roof bolts there.
The second question presented is whether the Respondent either discriminated against the Complainant or otherwise interfered with the exercise of
the Complainant's statutory rights. The burden is upon the Complainant to
prove by a preponderance of the evidence that the Respondent took adverse
action against him and that such action was motivated in any part by the
Complainant's participation in protected activityo
It is undisputed that the Respondent neither suspended nor discharged
the Complainant. Instead, the Complainant argues that adverse action was

4/ This is the sole incident of protected activity expressly relied upon by
the Complainant in his posthearing brief as forming the basis for the claim
of discrimination or interference.

2864

taken against him in that he was the "recipient of a series of threats or
verbal reprisals merely because he gave an honest answer to a directed
question by a federal safety inspector" (Complainant's Posthearing Brief,
p. 1). The so-called series of threats or verbal reprisals which allegedly
constitute the adverse action taken against the Complainant allegedly
occurred when the Respondent's agents allegedly (1) berated the Complainant,
(2) threatened him with the loss of his job through his safety committeeman,
and (3) impliedly threatened him with the loss of his job on November 12,
1980, because he luid participated in a Federal mine safety inspection. For
the reasons set forth below, I conclude that no threats or verbal reprisals
were directed against the Complainant in retaliation for his having engaged
in protected activities.
The incident in which the Respondent's agent allegedly berated the
Complainant occurred at the end of the November 5, 1980, day shift when
Mr. Bragg, the assistant mine foreman, confronted the Complainant on the
parking lot (Complainant's Posthearing Brief, p. 2). The relevant facts and
circumstances surrounding the incident show that the Complainant was never
ordered to bolt the roof in the Nos. 1 and 2 Entries. However, early in the
day shift on Novembe·r 5, 1980, Mr. Bragg ordered the Complainant to perform
roof bolting in the No. 3 Entry at 3 Left Break. Mr. Bragg ordered the
Complainant to use 30-inch roof bolts despite the fact that the roof was
broken at a depth of apRroximately 5 feet. The Complainant questioned
Mr. Bragg's decision, but performed the work as ordered until told by
Mr. Meade to work elsewhere.
Later that shift, during the inspection of the Second South Section,
the Complainant informed Inspector Marctnn of the conditions in the No. 3
Entry at 3 Left Break and of Mr. Bragg's instructi~n to use 30-inch roof
bolts. The Complainant subsequently overheard Inspector Marctnn tell
Mr. Bragg that he wanted to talk to him outside.
After the November 5, 1980, day shift, Mr. Bragg confronted the
Complainant on the parking lot. He asked the Complainant what he had said to
Inspector Marcum and accused the Complainant of lying to the inspector.
Mr. Bragg left after the Complainant responded forcefully.
The Complainant has failed to prove either that this confrontation
amounted to adverse action or that it was motivated in any part by the
Complainant's participation in protected activity. First, the
Complainant's characterization of the parking lot episode is palpably
inaccurate. The Complainant argues that the confrontation on the parking
lot addressed the incident in which he voiced his disagreement with the
decision reached by Inspector Marcum and the other members of the inspection party regarding correction of the roof problems in the Nos. 1 and 2
Entries. In his posthearing brief (p. 2), Complainant states:
Surely the accusation of a supervisor to an employee that
the latter is "lying" about his participation in a safety
inspection, when all the employee did was to voice his
solicited, unenforceable opinion to a government safety

inspector, constitutes a clear violation of the Act and
undermines its effective enforcement.
The record clearly discloses that Mr. Bragg was not motivated by such
considerations. Additionally, it should be noted that during the confrontation neither the Complainant nor Mr. Bragg addressed the incident of protected activity which the Complainant relies upon in his posthearing brief
as forming the basis for the claim of unlawful discrimination or interference.
Second, Mr. Bragg did not challenge the Complainant for his having spoken
with Inspector Marcum concerning the situation in the No. 3 Entry at 3 Left
Break. Rather, he disputed only the accuracy of that commllllication and the
truthfulness of the Complainant. 'J../ The Complainant did not establish that
Mr. Bragg attempted to intimidate or threaten the Complainant in any manner.
In fact, the record indicates that Mr. Bragg walked away from the Complainant
and did not raise the matter again. To put things in complete perspective,
note should be taken of the inflamatory statements made by the Complainant
to Mr. Herndon on November 12, 1980, in which the Complainant vilified
Mr. Herndon in the presence of other miners, cursing and berating him, and
calling him a liar and an unfit mine manager.
In view of the foregoing, the Complainant's assertion that Mr. Bragg's
action amounted to a violation of section 105(c)(l) of the Act is rejected.
The Complainant also argues that one o.f the Respondent's agents employed
Mr. Blankenship, the union safety committeeman 9 as a conduit to threaten the
Complainant with the loss of his job. The Complainant is referring to the
November 5, 1980, telephone call placed by Mr. Kenneth Cooper to Mr. Cleve
Campbell from the trailer which served as the mine office, a telephone call
which concerned the possibility of discharging the Complainant. The
Complainant maintains that Mr. Cooper either staged the telephone call exclusively for Mr. Blankenship's benefit or at least intended for Mr. Blankenship
to overhear the call, and, accordingly, argues that Mr. Cooper relied upon
Mr. Blankenship to unwittingly act as a company agent by relaying the threat
to the Complainant.
The specific facts surrounding the alleged threat show that during the
course of the November 5, 1980, inspection of the Second South Section, mine
management, Inspector Marcum, and the union safety representative reached a
conclusion as to the proper method of supporting the bad roof in the Nos. 1
and 2 Entries. When Inspector Marcum questioned the Complainant, he objected
to the methods agreed upon by the others. As a result, the inspector and
management agreed to danger off the area and to postpone final decision as
to the proper methods for support until the following day when the opinion
of a roof-control expert could be obtainedo Work was to continue in another
area of the mine.

5/- See footnote 2, supra.

2866

After this decision had been reached, members of the inspection party
proceeded to the mine office. Mr. Ray Herndon went into Mr. Kenneth Cooper's
office, closing the door after himself. Inspector Marcum, Mr·. Hawkins, and
Mr. Blankenship remained in the adjoining office. After a few minutes,
Mr. Herndon left Mr. Cooper's office, and Mr. Cooper then placed a phone
call to Cleve Campbell. Mr. Cooper was aware that Mr. Blankenshi·p and
Inspector Marcum were in the adjoining office and that the conversation
might be overheard by them. Although· the door to the office was closed,
the construction of the trailer which housed the offices was such that
Mr. Blankenship did overhear the conversation. Although Inspector Marcum
was in the room with Mr. Blankenship, he did not know that Mr. Cooper was
talking on the telephone and he did not overhear what was said.
Mr. Cooper told Mr. Campbell of the earlier safety complaint filed with
MSHA by some unknown individual concerning the roof conditions in the Nos. 1
and 2 Entries of Second South Section, ~/ of the subsequent inspection of
the two entries, and of the concurrence of all but the Complainant as to the
proper method of roof support. Mr. Cooper asked if he had grounds to discharge the Complainant. Mr. Campbell responded by asking whether the
Complainant had disobeyed direct orders, and he advised Mr. Cooper to gather
and weigh the facts and to thereafter make a decision. At the end of the
shift, Mr. Cooper questioned his foremen and found that the Complainant had
not disobeyed a direct.order to work. He therefore dropped the matter. J_/
As noted above, the gist of Complainant's position here is that
Mr. Cooper. intended Mr. Blankenship to overhear, his conversat:lon with
Mr o Campbell, to comprehend it as a: threat and to -relay the threat to
the Complainant. According to the Complainant, Mr. Cooper intended the
Complainant to be influenced thereby to drop his objections to the method
proposed for supporting the roof in the Second South Section and hesitate
to voice safety complaints in the future.

Mr. Cooper testified, and it is accepted herein, that he did not stage
a demonstration for Mr. Blankenship's benefit. He had no intention of conveying a threat either to Mr. Blankenship or to the Complainant through the
agency of Mr. Blankenship. The surrounding circumstances lend credence to
Mr. Cooper's assertion that he did not intend to threaten the Complainant.
To begin with, Mr. Cooper knew that Inspector Marcum was also in the adjoining office and that he might overhear the telephone call. It is highly
improbable that he would threaten a miner for safety-related activity within
hearing of a representative of the Secretary of Labor, the entity with
principal responsibility for ensuring compliance with section 105(c) of the
6/ Mr. Cooper testified that he never discovered the -identit~ of the indi~
vidual who lodged the complaint with MSHA concerning xhe roo£--conditions in
the Nos. 1 and 2 entries of Second South Section (Tr.• 80-81). It appears
that Mr. Cooper also discussed this unidentified individual with Ml·. Campbell
during their November 5, 1980, telephone conversation (see Tr.- 9lp lines 5-8).
!_/ See footnote 2, supra.
--

2867

Act. Furtherinore, the testimony of both Mr. Cooper and Inspector Marcum
establishes that the door between the offices was closed. That the door
was closed further reduces the likelihood that Mr. Cooper intended to have
Mr. Blankenship overhear his conversation.
In addition to the foregoing, the telephone conversation was limited to
a discussion of the propriety of discharging the Complainant. Clearly, a
decision to discharge had not been made. The question was raised as to
whether grounds for discharge existed and the conversation concluded with·
the decision to seek more information.
Mr. Cooper's follow-up actions are also inconsistent with the theory
that the conversation was a threat. When Mr. Cooper questioned the
Complainant's supervisors and discovered that grounds for discharge did
not exist, he dropped the matter.
Finally, it is noted that Mr. Herndon initiated his conversation with
the Complainant on November 12, 1980, by asking who had told him that he was
to be discharged for having voiced a safety complaint. Mro Herndon left
Mr. Cooper's office immediately prior to the telephone call to Mro Campbell
and was present on November· 6 when the Complainant stated that he was to be
discharged for his safety complaints. If it was the intent of mine manage~
ment to have threatened ~he Complainant on November 5, it is likely that
Mr. Herndon would have been aware of the threat. His posing the question
to the Complainant on November 12, 1980, is inconsistent with his having had
such knowledge.
In view of the foregoing, I conclude that Mro Cooper did not make the
telephone call for the purpose of having Mr. Blankenship overhear the telephone conversation and conveying it to the Complainant. I further conclude
that in conducting the telephone call, Mr. Cooper neither threatened nor
intended to threaten the Complainant, either directly or indirectly, with
the loss of his job. Accordingly, the telephone conversation did not constitute discrimination or interference in violation of section lOS(c)(l) of
the Act.
The Complainant also maintains that an agent of the Respondent, Mr. Ray
Herndon, impliedly threatened him with the loss of his job on November 12,
1980, because he had participated in a Federal mine safety inspection. The
Complainant argues that one "perceive[sJ the unmistakable hues of illegal
reprisal" in this conversation.
The record shows that Mro Herndon approached the Complainant in a conciliatory manner and attempted to discuss the Complainant's allegation that
the company was trying to discharge him. The Complainant made little or no
effort to accommodate Mr~ Herndon. The testimony of both the Complainant and
Mr. Cooper established that the Complainant was antagonistic in the presence
of other miners to the point of cursing and berating Mr. Herndon, and calling
him both a liar and an unfit mine manager. It is Complainantws contention
that Mr. Herndon threatened him by suggesting 11 that, if the conditions were

2868

as bad as [the Complainant] thought they were * * * maybe [the Complainant]
should find employment somewhere else"; and by reminding him that he had
obtained his job through a company supervisor who was also one of the
Complainant's distant relatives. However, Mr. Herndon made these statements
after the Complainant antagonistically stated that management at the mine was
bad. Mr. Herndon reported to Mr. Cooper that the Complainant had specifically stated in the presence of other miners that Mr. Herndon was both a liar
and an unfit mine manager. Mr. Herndon's statements are mild even taken out
of context. When considered in context, they cannot be considered a threat
or reprisal of any sort.
Additionally, a preponderance of the evidence does not support the position that the Respondent, acting through Mr. Herndon, discriminated against
the Complainant or interfered with the exercise of his statutory rights when
Mr. Herndon approached the Complainant and sought the identity of the individual who had informed him that the Respondent was trying to discharge him.
As noted above, Mr. Herndon was aware of the November 5, 1980, telephone conversation between Mr. Kenneth Cooper and Mr. Cleve Campbell during which the
latter directed the former to seek more information and to thereafter reach a
decision respecting whether or not to discharge the Complainant. Mr. Cooper
followed Mr. Campbell's instructions and concluded that grounds for the
Complainant's discharge pid not exist. The November 5, 1980, telephone call
was intended to be a communication between or among members of the
Respondent's management, and was not intended for dissemination outside mine
management. .Additionally, it app.ears that Mro Cooper's further inquiries as
to whether the Complainant had disobeyed orders were not intended for disclosure to anyone outside mine management.
Mr. Herndon approached the Complainant on November 12, 1980, because he
"want[ed] things to be different," which has been construed to mean that he
approached the Complainant in a concil-iatory manner. This at least arguably
implies that the question as to the informant's identity was directed toward
ultimately reassuring the Complainant that the informant had been misinformed
and that the Respondent was not trying to discharge him. It is also arguable
that Mr. Herndon asked the question, at least in part, in order to determine
the identity of the individual who had "leaked" confidential information.
In summary, I conclude that although the Complainant engaged in three
instances of protected activity on November 5, 1980, he has failed to establish that the Respondent illegally discriminated against him or interfered
with the exercise of his statutory rights in violation of section 105(c)(l)
of the Act as a result of his having engaged in such protected activities.
Accordingly, the complaint will be dismissed.
Proposed findings of fact and conclusions of law which are not expressly
or impliedly adopted herein are rejected on the grounds that ·i:hey are, in
whole or in part, contrary to the facts and law or becuase they are immaterial
to the decision in this case.

2869

ORDER
Accordingly, IT IS ORDERED that the above-captioned complaint be, and
hereby is, DISMISSED.

Forrest E. Stewart
Administrative Law Judge
Distribution:
Larry Harless, Esq., P.O. Box 1313, Charleston, WV 25328 (Certified
Mail)
Harold Albertson, Esq., Hall, Albertson and Jones, P.O. Box 1989,
Charleston, WV 25327 (Certified Mail)

2870

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

DEC 3 0 1981

Civil Penalty Proceeding

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

Docket No. KENT 80-273
Assessment Control
No. 15-07295-03013

v.

Hartiki Surface Mine
MARTIKI COAL CORPORATION,
Respondent
DECISION
Appearances:

George Drumming, Jr., Esq., and Darryl A. Stewart, Esq.,
Office of the Solicitor, U.S. Department of Labor, for
Petitioner;
William G. Francis, Esq., Francis, Kazee and Francis,
Prestonsburg, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued March 12, 1931, as &'!lended April 30,
1981, July 15, 1981, and August 5, 1981, a hearing in the above-entitled proceeding was held on May 6, 1981, and October 7, 1981, in Prestonsburg, Kentucky,
under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815(d).
After the parties had completed their presentations of evidence, I rendered the bench decisions which are reproduced below. Two of the bench decisions are contained in the first volume of transcript and the third decision is
contained in the second volume of transcript.
Citation No. 707702 1/8/80 § 71.603(c)(Tr. 48-52)
In order to rule on Mr. Francis' raotion that Citation No. 707702
be dismissed for failure of the Government to prove that a violation of
section 71.603(c) existed, I should make some findings of fact.
1.
Inspector Dingess, on January 8th 1980, which was a Tuesday,
examined the shop area belonging to Martiki Coal Corporation. At that
time, he issued Citation No. 707702 stating that the drinking water
fountain was not being maintained in a sanitary condition. He subsequently modified the citation by issuance of a subsequent action sheet
on February 14, 1980, in which he changed the original section alleged
to have been violated from section 71.602(c) to section 71.603(c).
2.
There was introduced in evidence as Exhibits A and B two
pictures which show that the water fountain was adjacent to a refrigerator. The inspector stated that the citation was primarily issued

2871

on the ground that an excessive amount of dust, in his opinion, had
been allowed to accumulate on the drinking cups which were hanging
at the drinking fountain. The cups had been inverted and the dust
was on the outside of the cups. The inspector also said that an
excessive amount of dust was on the valve which is pressed to obtain
water from the inverted container of water on top of the fountain.
The inspector did not know how long it had been since the drinking
fountain had been cleaned, but he pressed the valve and water did
come out of the. fountain. Therefore, the fountain was capable of
being used. The inspector admitted that the refrigerator contained
a supply of sanitary water containers in individual cups.
3.
Respondent's witness, Justice, testified that he is the
welding supervisor in the area adjacent to the location of the water
fountain and refrigerator and he stated that the man who normally did
the cleaning of the fountain had been off for a period of time and had
been unable to clean the fountain, but that he had assigned other people
to clean the bathrooms and the fountain from time to time. He was uncertain as to how long it had been since the cleaning person had become
sick, but he testified that he believed that the fountain had been cleaned
within a week prior to the inspector's writing of the citation and that
in his opinion more dust would have been on the fountain than was there
on the day the citation was written if the fountain had not been cleaned
for 7 days.
I think those are the basic facts on which a decision will have to
be based. The section at issue, namely, 71.603(c), reads as follows:
"Drinking fountains from which water is dispensed shall be thoroughly
cleaned once each week." The inspector definitely satisfied the first
part of that provision in that he tested the drinking fountain and found
that water could be dispensed through it, and while the respondent's
evidence shows that some of the employees had been told to use the water
in the refrigerator until the cleaning employee was able to resume his
duties,or until someone had been designated permanently to do his work
in his absence, the fact remains that the water fountain could have been
used by other employees who had not been advised to get their water from
the refrigerator.
The difficulty I have with finding a violation, of course, is that
the last part of section 71.603(c) provides that the fountain shall be
thoroughly cleaned once each week. The inspector did not find out for
certain that the fountain had not been cleaned within a week's time.
The gap in his proof, therefore, as to whether the fountain had been
cleaned for a week is filled in by Justice's testimony which indicated
that in his opinion the fountain had been cleaned within a period of
1 week prior to the time the citation was written.
I am aware that the Commission has been very liberal in the interpretation of the standards. For example, in Ideal Basic Industries,
Cement Division, 3 FMSHRC 843 (1981), the Commission dealt with a citation which had alleged a violation of section 56.9-2, which provides
that equipment defects affecting safety shall be corrected before the
equipment is used. In that decision the Commission interpreted that

2872

section to mean that use of a piece of equipment containing a defective
component that could be used, and which if used, could affect safety,
constitutes a violation of section 56.9-2. The Commission said that
its interpretation of that section would come closer to requiring
corrective action before an accident occurred than the broader interpretation which had been used by an administrative law judge. The Commission then made a very broad interpretation of that section by saying
that if equipment with defects affecting safety is located in a normal
work area fully capable of being operated, that constitutes use within
the meaning of that section. So I am sure, based on what the Commission
said in that case, by analogy the Commission would take a very broad
interpretation of the section that's before me in this instance, but
I don't see how I can ignore language stating that fountains "shall be
thoroughly cleaned once each week."
Since I have the testimony of an inspector who is not certain that
the fountain had been cleaned within a week's period and I have the
opinion of the welding supervisor, who worked in the area, who says that
it was cleaned in less time than a week prior to the citation, I believe
that I am required to rely upon his testimony for the latter part of
that section and find that no violation of section 71.603(c) was proven.
That does not mean that I am critical of the inspector for having issued
the citation because the Commission has constantly pointed out that the
purpose of the regulations is to achieve healthful and safe conditions
in coal mines and surface facilities and the inspector's testimony shows
that this particular drinking fountain needed attention and probably the
inspector did the company a service in issuing the citation by showing
them that they were not cleaning this fountain as often as was desirable,
even though it may have been cleaned 7 days before January 8, 1930. Since
I have found that no violation was proven the Proposal for Assessment of
Civil Penalty is dismissed to the extent that it alleges a violation of
section 71.603(c) in Citation No. 707702.
Citation No. 708229 1/8/80 § 77.1605(d) (Tr. 105-113)
I shall make some findings of fact upon which my decision will be
based:
1.
On January 8, 1980, Inspector Barry Lawson inspected Martiki
Coal Corporation's surface mine. While the inspector was checking equipment, a Caterpillar 992 end loader was driven into the area where the
inspector was located. The inspector checked the end loader and then
discussed with the operator of the end loader whether the operator had
any problems that the inspector had not noted and the operator of the
end loader stated that there was a light on the top of the cab which
was not working and that the operator would appreciate it if the inspector would have the company replace that light because it helped him
when he was operating the end loader. The inspector had noted that the
light had been damaged and was not functioning but he wanted to determine
whether the lack of light was a problem for the operator. When the operator indicated to the inspector that he would appreciate having the
light replaced, the inspector wrote Citation No. 703229 at 9:45 p.m.,
alleging a violation of section 77.1605(d).

2873

2.
There was introduced in evidence as Exhibit C a picture of the
end loader here involved after the right topmost light had been replaced.
The end loader not only has two topmost lights on each corner of the
uppermost part of the cab but also has dual headlights on each side of
the cab located at the bottom of the windshield. The evidence shows that
all of the lights were functional on the end loader except for the topmost corner light at the top of the cab.
3.
Respondent's testimony shows that the Caterpillar Company produces the end loader of the type here involved with what is known as
standard lighting and also offers optional lighting. If the Caterpillar
992 end loader is ordered with standard equipment only the dual lights
at the bottom of the windshield on each side of the cab are provided.
The testimony of one of respondent's witnesses was to the effect that
respondent always ordered its 992 end loaders with the two optional headlights at the top of the cab because in respondent's opinion the additional lighting is helpful to the operator of the 992 end loader when
they're being used.
4.
The foreman of the night operations testified that any light,
including those at the top of the cab of the 992 loader, would be replaced immediately if he were aware of the fact that such a light is
missing or damaged and he said that in his opinion the lights at the top
of the cab do provide illumination which is helpful and that he approves
of the fact that his company ordered the equipment with the additional
optional lighting at the top of the cab.
5.
The inspector believes that the two lights at the top of the
cab are very helpful because he says that when the end loader is being
operated and the bucket is raised that the lower lights have a tendency
to reflect off the bucket into the operator's eyes and that the two
additional lights at the top of the cab definitely provide illumination
for the operator which is very helpful and would not otherwise be available to the operator to assist him in operating the equipment.
6.
The end loader in question had been used during the shift for
the purpose of widening a roadway. The work for which it was intended to
be used on that shift had been completed and the operator of the end loader
was returning it to the storage area, but on the way to the storage area
he stopped to ask the foreman, who was in the company of the inspector,
if any further work needed to be done with that end loader before it was
returned to the parking lot. It was at that point that the inspector
examined the lights and other equipment on the end loader and wrote the
citation which I have previously described. The inspector stated that
the end loader had no other defects and that the only violation that he
observed was the lack of a headlight at the top of the cab on the right
side.
I think that those are the basic facts which have been adduced by
both parties in support or in opposition to the violation alleged in
';tation No. 708229.

2874

The section here involved is 77.1605(d), which states in pertinent
part that, "Lights shall be provided on both ends when required." The
first part of that section refers to mobile equipment. The argument
advanced by respondent in this case is that since respondent had provided lights on both ends of the mobile equipment here involved, that
respondent was not in violation of that provision because it had purchased this Caterpillar end loader with both standard and optional lighting, that is, with lights at the bottom of the windshield, and those
lights were burning, plus one of the optional lights at the top of the
windshield, and there were lights on the rear of the end loader. Therefore, it is respondent's position that both ends had been provided with
lights as required.
Counsel for the Secretary of Labor, on the other hand, states that
he would agree that if the two words, "when required", simply refer to
the condition of a piece of equipment as it is delivered with standard
equipment, that respondent had complied with section 77.1605(d) because
there were in fact lights on both ends. The Secretary's counsel contends,
however, that the words, "when required", in that section mean lights required to give the type of illumination that is desirable when a person
is operating the end loader. He believes that since the testimony shows
that the optional lighting, or both lights, at the top of the cab do
provide the light that is required for the best possible vision and
illumination when the end loader is being used, that respondent violated
section 77.1605(d) when it allowed the end loader to be used without
having the optional topmost right lamp in operation.
I cited, in dealing with the previous alleged violation, the Commission's decision in the Ideal Basic Industries case, 3 FMSHRC 843(1981),
and I think that that decision is very pertinent to the interpretation
that's required in this instance. In that case, as I indicated, the Commission had said that if a piece of equipment is in a work area and it's
fully capable of being operated, that that constitutes use of the equipment.
So in this case we're sure that this equipment had been used and the
question then is whether the words, "when required", mean lights required
for the best possible illumination or lights required simply because the
manufacturer happens to put them on both ends of the equipment as standard
equipment.
The Commission stated in the Ideal Industries case that it believed
that interpretations to be given to the statute are those which are likely
to prevent accidents, which is the primary goal of the Act. I believe
that the interpretation argued for here by the Secretary's counsel is the
one which I am required to follow because even respondent's own witness
agreed that that one light could make a difference if it were missing.
The operation of this equipment is facilitated and the likelihood of
accidents is prevented when the operator has the maximum illumination
that the equipment was purchased to have on it. Since the operator of
the equipment himself is the one who noted to the inspector that he
found the extra light to be an advantage, I believe that the words, "when
required", in this case must be that interpretation which would require
both lights at the top of the cab to be functional. Therefore, I find
that a violation of section 77.1605(d) was proven.

2875

Having found a violation, section llO(i) of the Act requires that
a civil penalty be assessed. The parties have entered into stipulations
which cover some of the six criteria which must be considered pursuant
to section llO(i). It has been stipulated that respondent is subject
to the Act and that I have jurisdiction to hear the case and that respondent operates the Martiki surface mine here involved.
With respect to the size of the operator's business, it has been
stipulated that respondent is a large operator with an annual tonnage of
six million, and approximately three million tons for the Martiki surface
mine on an annual basis.
Exhibit 1 in this proceeding, and also an additional statement submitted by respondent, show that there has been no previous history of a
violation of section 77.1605(d). It has been my practice to increase a
penalty under the criterion of history of previous violation only if the
evidence before me shows that the violation being considered has been
previously violated. Since there has been no previous violation in this
instance, the penalty should not be increased under the criterion of
history of previous violations.
It has been stipulated that the operator's ability to continue in
business would not be adversely affected by the assessment of a civil
penalty. It has also been stipulated that all of the violations alleged
in this case were abated after the operator had demonstrated a good-faith
effort to achieve compliance. In this instance, abatement of the violation alleged in Citation No. 708229 is indicated in a Subsequent Action
sheet written by a different inspector from the one who wrote the citation,
but it is obvious that respondent demonstrated a good-faith effort to
achieve compliance.
As to respondent's negligence, the evidence shows that the end loader
here involved was a spare end loader and was only used when one of the
other end loaders was not available or that a special job needed to be
done that wouldn't take but a short period of time. In this instance,
an operator who normally operated a Caterpillar tractor had been asked
to use the end loader to widen a place in the road. Consequently, he
would not have had any reason to know how long this light had been off
the piece of equipment. The supervisor who testified stated that he
was not aware of the missing light prior to the time that the end loader
was driven to his vicinity. Consequently, the evidence does not support
a finding of a high degree of negligence but I assume, since anyone who
operates a piece of equipment is required to check it and make sure that
it is without defects before it is operated, that we must attribute some
negligence in this instance to the fact that this particular piece of
equipment was used without having this one light replaced. So I find
that ordinary negligence existed.
As to gr:avity, the final criterion to be considered, there is
not any real testimony to show that people were exposed to any great
hazard in this instance by the lack of the one light on the right side
of the cab because the operator of the end loader did not tell the

2876

inspector where he had used the end loader. The purpose for which it
had been used had already been completed. At the time that the end
loader was pulled up in the vicinity of the inspector, there was another
truck and another end loader in that area, but there was no one on foot,
so no one was apparently exposed to any hazard in the circumstances that
we have in this case. Consequently, since there's a lack of evidence as
to just exactly what was done with the end loader in this instance, I find
that there was a low degree of gravity based on the evidence that we have
in this proceeding. Considering all those six criteria, as outlined above,
I find that a penalty of $50 is adequate.
Citation No. 726078 3/21/80 § 77.1001 (Tr. 326-335)
I shall make some findings of fact on which my decision will be based.
1.
Inspector William Creech went to the surface mine of Martiki
Coal Corporation on March 21, 1980, to make an inspection based on a
complaint which had been submitted to MSHA through another inspector. The
complaint was an oral one and apparently alleged that the highwall at the
dragline area was unsafe. The inspector was accompanied to the area of
the highwall by respondent's assistant safety director. At the highwall
the inspector noted some coal production was in progress but the coal was
being scraped up about 300 feet from the highwall at the far end of the
pit and no actual production was going on close to the highwall.
The inspector noticed a rock near the top of the highwall about 2 to
3 feet in size and which was located about 10 to 12 feet from the top of
the highwall. He could not tell whether the rock was loose, but as a
matter of judgment, he concluded that it was a hazard because it might
be loose. Additionally, he felt there were loose materials at the top
of the highwall about 2 to 3 feet in depth, and consequently he wrote
Citation No. 726078 stating that loose and unconsolidated material had not
been stripped from the top of the highwall in an active dragline pit.
2.
The inspector introduced as Exhibit 9 the ground control plan
which was then in effect, and he stated that page 4 of the ground control
plan showed a sketch of the type of mining activity which was in progress.
That particular sketch does not show any bench on the highwall. The
inspector stated that the highwall was about 90 to 100 feet in height,
and the inspector said that he examined the highwall from a distance of
100 to 125 feet and that he saw no bench on the highwall. He also testified that trucks and other vehicles coming into the pit area would have
to travel fairly close to the highwall in going in and out.
Based on those conditions, the inspector believed that a violation
existed and that it was fairly serious. The dragline had already been
moved from the area and there apparently was no equipment around which
could be used to remove either the rock or any other loose material at
the top of the wall; consequently, the citation was abated within 1.hour
after its issuance by the construction of a berm about 20 feet out from

237~;

the highwall which forced all traffic to go on .the outby side of the
berm and therefore insured no people would be closer to the highwall
than 20 feet.
3.
Respondent presented five witnesses in support of its contention that no violation existed. The composite testimony of all five
witnesses is to the effect that, first, the highwall was not unsafe
because the rock which the inspector had said was along the face of the
highwall was imbedded so far into the basic rock strata that it could
not have fallen; and second, respondent's witnesses claim that even if
the rock had fallen, it would have been contained by a bench which had
been constructed about 25 feet from the bottom of the pit with a width
of 15 to 25 feet and therefore anything falling from the highwall would
not have endangered anyone working in the pit.
Respondent's witnesses additionally explain that under the ground
control plan which they were following but which was technically not in
effect at that moment because they had never started using the one which
was actually in effect on March 21, 1980, and that under the plan they
were actually following, respondent had been cutting a bench along the
highwall at all times. Respondent further contends that the ground control plan introduced by the inspector -- that is, Exhibit 9 -- which
reflected no bench along the highwall was erroneous because that plan
had been submitted in anticipation of respondent's encountering solid
sandstone as a highwall, when, in fact, solid sandstone did not materialize for a sufficient length of time to merit going to a vertical highwall without a bench along the highwall.
4.
The rock at the top of the highwall which was discussed by the
inspector was also the subject of considerable testimony by respondent's
witness, James Lewis, who said that he had inspected the rock on March 21,
1980, and that he did not see any cracks in the rock; but he apparently
agreed with the inspector that the rock was on the face of the highwall
a little distance down from the top.
The other witness was respondent's superintendent, Jerry Lewis, and
it was his testimony that the rock was imbedded in the actual top of the
highwall but extended down over the face of the highwall so that, if
examined from the ground, the rock would appear to be a hazard, but if
inspected from the top, it could be seen the rock was thoroughly
anchored in the basic strata of the ground and therefore served as no
hazard to the people working in the pit area. Jerry Lewis also said
that there is some loose material at times on the highwall but that most
of the time the dragline succeeds in cleaning it up so as to present no
loose material to speak of.
5.
Respondent presented as Exhibit D an aerial photograph which
shows areas, primarily in the form of shadows, indicating where flat
places exist and where elevated places exist. According to James Lewis,
a bench was constructed along the highwall at the area which is shown on
Exhibit D as of March 21, 1980, and that is quite obvious if one looks
at the pit area which is still visible on the aerial photograph at about
one inch from the arrow shown on Exhibit D below the words "Pit Area
3-21-80. 11

2878

I believe those are sufficient findings of fact for rendering a
decision in this proceeding. Section 77.1001 provides, '~oose hazardous
material shall be stripped for a safe distance from the top of pit or
highwalls, and the loose unconsolidated material shall be sloped to the
angle of repose, or barriers, baffle boards, screens or other devices
be provided that afford equivalent protection."
If one examines the actual language of the inspector in Citation
No. 726078, it can be seen that he stated "loose and unconsolidated
material had not been stripped from top of highwall in active dragline
pit." It's been my experience over the years that inspectors tend to
use the exact language from any of the sections that they are alleging
have been violated, and that would be true in this case because the
inspector uses the exact language of the first few words of the section
by saying that loose and unconsolidated material had not been stripped
from the top of the highwall.
Now, if the inspector's testimony had been that the only thing he
saw was a rock which he was afraid might fall, then one could say that
the only loose material that he was citing was the rock. But he referred
to other material sufficiently to have discussed the fact that he thought
it was 2 or 3 feet in depth, so I cannot agree with respondent that the
only thing that is cited in the citation is a single rock.
Assuming 9 nevertheless, that the only thing the inspector was concerned about was a rock, we have the other unreassuring testimony of
respondent's witness Jerry Lewis, who had examined the rock most carefully, and said that he would want to have examined the rock from both
the bottom and the top to be sure that it would not fall or that it was
anchored thoroughly in the ground. Since Lewis had looked at the rock
from the bottom and the top and felt you could not be sure about it without inspecting both the top and the bottom, it seems to me that he was
saying that he couldn't be sure it was thoroughly grounded in the earth
from the bottom, and he couldn't be sure of it from the top and it was
a judgment matter as to whether this rock could have fallen or not have
fallen.
To his credit, we must say he at least looked at it from both the
top and the bottom, whereas the inspector did not look at it from both
the top and the bottom. If the inspector had looked at it from the top
and the bottom, perhaps he would have come to a different conclusion.
There is also a difference of opinion between Jerry Lewis and the inspector, and apparently as to James Lewis as well, because James Lewis seemed
to think that this rock was somewhere down the side of the highwall,
whereas Jerry Lewis thought the rock was solely at the top, with an
extension over the side of the highwall.
So, based on the testimony of those who examined this rock, there
must be some doubt about whether the rock was safe or not, because according to the inspector, it was doubtful that the rock was safe because he
said it was 10 feet or so from the top; and, if it had come loose, it
would have come on down the highwall. Jerry Lewis felt you couldn't be

2879

sure about its safety without checking it from both the top and bottom.
In evaluating the conflicting testimony, it should be borne in mind
that the inspector is required to cite anything which looks to him as
if it is a hazard. All of the people who testified in this proceeding
agree that this rock could have been a hazard if it had come loose.
Consequently, I don't think I can say the inspector was entirely
out of line for being concerned about this rock. Based on the testimony
I have received from the two Lewises, I think I would have to find that
the rock was not loose and therefore it did not constitute hazardous
material.
On the other hand, the problem that bothers me about this rock is
that it either was hanging out over the highwall or it was on the highwall in such a position that it might have been hazardous material, and
it seems to me the operator should have been able to knock off a piece
of rock that big with this huge dragline they use, because they apparently
didn't have any trouble doing it anywhere else. So, I don't think this
rock should have been left there in the first place, regardless of
whether it was loose or not.
In addition to the foregoing observations, there is no testimony
by respondent's witnesses which really addresses the inspector's allegation that there were other loose materials at the top of the highwall.
Therefore, I shall take the inspector's word that he wrote the citation
on the basis of loose materials at the top of the highwall as well as
this rock that has been extensively discussed.
The next question that must be decided is whether the section here
involved is violated if there is a shelf on this highwall to catch any
material that might fall off of it; because the section says, "The
loose unconsolidated material shall be sloped to the angle of repose or
barriers, baffle boards, screens or other devices be provided that afford
equivalent protection." The inspector agreed in his testimony that if
there had been a bench 15 to 20 feet wide in this highwall, he would have
to say that that would eliminate the violation of section 77.1001. The
part of the testimony that is troubling in this area is that it is hard
to conceive how the inspector could have been 125 feet from the highwall
and not have seen the bench if, in fact, the bench was there.
On the other hand, it's just as hard to conclude that five witnesses
presented by respondent would have come into this proceeding and testified
in what I felt was a very convincing and straightforward manner that the
bench existed if, in fact, it did not. The aerial photograph shows that
the bench was there, because it is shown in the picture.
The only explanation I can conjecture which would possibly reconcile
the inspector's failure to see this bench with the testimony of respondent's witnesses, who say it was there, is that there may have been
some sort of dragline work at one end of this highwall which might have
obliterated the bench at the point of entrance into the pit area; but
I have no testimony to show that that actually happened. I do believe,

2880

since the inspector had gone here on a complaint, that it would have
been possible for him to have been concerned so much about what was at
the top of the highwall that he might not have noticed that there was
a bench toward the bottom of it. The bench was high enough above the
bottom of the pit to have protected anyone in the pit from a fall of
this rock or other loose material, because all witnesses stated that the
bench was anywhere from 15 to 25 feet wide, and the inspector said that
that would be wide enough to provide safety.
I think the preponderance of the evidence, therefore, supports a
conclusion that the bench did exist and that it did afford sufficient
protection to eliminate a violation of section 77.1001; therefore, I find
no violation of section 77.1001 occurred and the Government's proposal
for assessment of civil penalty will be dismissed as to the alleged violation of section 77.1001 in Citation No. 726078.
After I had rendered the third bench decision set forth above, counsel for
the Secretary of Labor orally moved for reconsideration of the third bench
decision on the ground that section 77.1001 is intended not only to protect
employees in the pit below the highwall from injury, but also to protect employees from stumbling in loose material on top of the highwall and falling
from the highwall into the pit below. The Secretary's counsel stated that
although a bench would keep material from falling on men working below a highwall, he did not believe that a bench could be interpreted as being in accord
with the rule of ejusdem generis in that a bench was not the same as the other
ite~s enumerated in section 77.1001 because the bench would be situated well
below the other enumerated devices of "barriers", "baffle boards", and "screens".
It was the position of the Secretary's counsel that barriers, etc., would be
placed at the top of the highwall to protect men and equipment from going
over the edge of the highwall and he believed that a violation had been proven
because respondent had not placed any barriers, baffle boards, or screens at
the top of the highwall.
Counsel for respondent argued that the Secretary's counsel was belatedly
raising an issue and argument on which no testimony whatsoever had been presented and that the Secretary's motion for reconsideration should be denied for
raising novel issues as to which the inspector had not testified.
I denied the motion for reconsideration at transcript pages 339 and 340.
My reasons for denying the motion should be set out in more detail than they
were at the hearing.
As for the argument that benches located a considerable distance from the
top of the highwall cannot be considered to be in accord with the principle of
ejusdem generis because a bench is not in the same category as the enumerated
devices of "barriers", "baffle boards", and "screens" which would be at the
top of the highwall, I disagree with the Secretary's argument for at least
two reasons. First, I do not believe that the barriers, baffle boards, and
screens necessarily have to be placed at the top of the highwall, as was contended by the Secretary's counsel. Section 77.1001 states that "[l]oose
hazardous material shall be stripped for a safe distance from the top of pit
or highwalls * * *"· The section then states that if such materials can't be

2881

sloped to the angle of repose, barriers, baffle boards, screens, or other
devices shall be used to afford "equivalent" protection. The words "for a
safe distance", in my opinion, mean that no person is required to strip
loose materials from the top if doing so would endanger that person's life.
Therefore, if the loose materials are too far from the top to be stripped
from the top, it may well be that the only way persons in the pit below the
highwall can be protected from falling materials is for the operator to construct barriers, baffle boards, screens, and other devices near the bottom
of the highwall so that any loose materials will not fall on employees working in the pit.
Second, it must be recalled that the highwall in this instance was about
100 feet in height. Respondent had cut a bench about 25 feet from the bottom
of the highwall to protect employees from materials which might fall off the
highwall. The construction of barriers, baffle boards, or screens near the
top of a highwall which is 100 feet high would be a hazardous undertaking.
Yet the inspector wanted employees in the pit to be protected from the possibility that a rock, which was located from 10 to 12 feet from the top of the
highwall, might fall from the highwall into the pit below. In such circumstances, I believe that the bench cut along the highwall was the safest way
that employees could have been protected and that the bench may properly be
considered as the use of a satisfactory "other device" within the meaning of
section 77.1001 and application of the principle of ejusdem generis.
As to the argument by the Secretary's counsel that the barriers, etc.,
required by section 77.1001 must be adequate to protect both equipment and
persons from falling from the top of the highwall, it is obviously impractical,
if not impossible, to construct a barrier of sufficient strength and size to
prevent a dragline 300 feet high (Tr. 338) from slipping or rolling off the
top of the highwall if its operator should happen to position it close enough
to the edge of the highwall for it to fall off the highwall.
Finally, as I stated at the hearing, there is no language in section
77.1001 which even implies that that section is designed to protect employees
from falling off the top of the highwall. Perhaps the most damaging evidence
showing that the inspector did not interpret section 77.1001 in the same
fashion as the Secretary's counsel argued in support of his motion for reconsideration, is that the inspector allowed respondent to abate the violation
in this instance by having respondent construct a berm in the bottom of the pit
which would prevent vehicles from getting closer than 20 feet to the highwall.
If section 77.1001 is really intended to require barriers at the top of the
highwall to prevent employees from falling off the highwall, nothing was done
by the inspector in this case to carry out that intent of section 77.1001
because the only protection provided was constructed in the bottom of the pit
solely to prevent loose material from falling on employees working in the pit.
For the reasons given above, I find that the motion for reconsideration
should be denied.
WHEREFORE, it is ordered:
(A) Respondent, within 30 days from the date of this decision, shall pay
a civil penalty of $50.00 for the violation of section 77.1605(d) alleged in
Citation No. 708229 issued January 8, 1980.

2882

(B) The Proposal for Assessment of Civil Penalty filed in Docket No.
KENT 80-273 is dismissed insofar as it seeks assessment of civil penalties
for the violation of section 71.603(c) alleged in Citation No. 707702 issued
January 8, 1980, and for the violation of section 77.1001 alleged in Citation
No. 726078 issued March 21, 1980.
(C) The oral motion of the Secretary's counsel for reconsideration of
the bench decision appearing at transcript pages 326 to 335 is denied for the
reasons hereinbef ore given.

~ C. r;/;J:tJll,~

Richard C. Steffey
~
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
George Drumming, Jr., and Darryl A. Stewart, Attorneys, Office of the
Solicitor, U.S. Department of Labor, Room 280, U.S. Courthouse,
801 Broadway, Nashville, TN 37203 (Certified Mail)
William G. Francis, Esq., Attorney for Martiki Coal Corp., Francis,
Kazee and Francis, 111 East Court Street, P.O. Rox 110, Prestonsburg,
KY 41653 (Certified Mail)

2883

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

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

22041

DEC :3 o· 1991
~ivil Penalty Proceeding
Docket ~o. KENT 81-74
Assessment Control
No. 15-12484-03001

v.
No. 1 Tipple
COMMONWE-ALTH MINING CO., INC.,
Respondent
DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner;
Michael Templeman, President, Commonwealth Mining Co., Inc.,
Pikeville, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued August 4, 1981, as amended
October 30, 1981, a hearing in the above-entitled proceeding was held on
November 3, 1981, in Prestonsburg, Kentucky, under section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 315(d).
After the parties had completed their presentations of evidence, I rendered the bench decision which is reproduced below (Tr. 160-184):
This proceeding involves a Proposal for Assessment of Civil Penalty
filed on March 5, 1981, by the Secretary of Labor in Docket No. KENT 8174 alleging four violations of the mandatory safety standards by Commonwealth Mining Co., Inc. A hearing was held and, after testimony had
been presented by petitioner and by respondent as to Citation No. 720668,
respondent's representative stated that he had another commitment and
that he would have time to present testimony only as to one other citation which is No. 947345. During a recess, respondent agreed to pay
the full amount of $52.00 proposed by the Assessment Office with respect
to two other citations. The result of the settlement as to two citations
out of the four alleged by the Proposal for Assessment of Civil Penalty
is that the contested aspect of this proceeding involves only two cita·tons. My bench decision will first deal with the two contested citations; the remaining part of my decision will approve the settlement
agreed to by the parties.
Contested Citations
Jurisdictional Issue. Respondent raised an issue as to whether
the citations involved in this proceeding were properly written with
respect to facilities which are subject to the provisions of the Federal
Mine Safety and Health Act of 1977. That issue pertains to all four of
the citations even though a settlement was reached as to two of them
because the settlement was based on the assumption that if I decide

2884

the jurisdictional issue adversely to respondent that the other matters
would be considered on the assumption that everything involved in this
case is subject to the provisions of the Act. The facilities involved
in this proceeding constituted a crushing and processing plant and
loading facility for loading coal into railroad cars. The plant had
been constructed just a few days before the inspection was made and,
in fact, the inspectors wrote their citations on the day that the plant
first engaged in a trial period of operation. Consequently, the plant
had been run to produce only about a half railroad car of coal before
it was shut down in order that the belts could be realigned on the conveyor. It was at that point in time that the citations were written,
that is, while the plant was inoperative. It is respondent's position
that since coal had neither been sold in interstate commerce or sold
so as to affect interstate commerce at the time the citations were
written, no jurisdiction should attach to the facilities here involved.
Section 4 of the Act provides, with respect to jurisdiction, as follows:
"[e]ach coal or other mine, the products of which enter commerce, or the
operation or products of which affect commerce, and each operator of
such mine, and every miner in such mine shall be subj ec.t to the provisions of this Act."
The courts have held that when Congress uses the phrase "affecting
commerce", that Congress intends for a statute written with that provision in it with respect to jurisdiction to be interpreted to the farthest
possible reach of the commerce clause, and a court so stated in Secretary
of Interior v. Shingara, 418 F. Supp. 693 (M.D.PA. 1976). In Ray Marshall
v. Wade Kilgore, 478 F. Supp. 4 (E.D. TENN. 1979), the court stated that
even activity which appears to be entirely intrastate commerce may be regulated where the activity affects commerce. In the Kilgore case, the court
indicated the extent to which jurisdiction may be held to apply by citing
the Supreme Court's opinion in Wickard v. Filburn, 317 U.S. 111 (1942), in
which the Court held that wheat grown for one's. own consumption had an
effect on commerce because if sold in the market, it would affect the
price of wheat, or if eaten, would affect the market because the grower
of the wheat would not have to buy wheat. Since the commerce clause has
been applied to a person who grows and eats his own wheat, it is certain
that the commerce clause would apply to a facility from which coal is sold
only in the intrastate market, as apparently was the case for the coal
ultimately sold by respondent in this proceeding.
The real thrust of respondent's argument as to jurisdiction, however,
is that until coal processed from its plant had actually been sold in
interstate or intrastate commerce, no jurisdiction should attach to such
facilities or coal. The obvious response to that argument is that independent contractors have been held subject to the jurisdiction of the
Act, even though they may construct a shaft or do other work in connection
with a coal mine that has never sold any coal at the time they do their
work and they may leave the premises and be gone for a month or two before
any coal is sold. Yet, the courts have held that their activities and

2885

their workers are subject to the provisions of the Act and that they
can be cited for violations which were committed on mine property. ".};_/
There is no merit to respondent's jurisdictional argument in this
case based on the fact that· the coal, which has been run through respon·dent' s tipple and processing facilities, had not yet been sold to anyone
at the time the citations were written. Obviously, the facilities had
been constructed for the purpose of processing coal and the coal, even
if ultimately used only in intrastate connnerce, would have en affect
on commerce and, therefore, be jurisdictional. The mere fact that the
inspectors wrote the citations before such coal had started moving in
intrastate commerce is immaterial. Therefore, I find that the facilities
here in issue were jurisdictional and that all the citations written by
the inspectors were properly issued to an operator which was subject to
the jurisdiction of the Secretary of Labor and the Commission under the
Act.
Citation No. 720668 dated 9/18/80, § 77.701
I shall make some findings of fact with respect to Citation No.
720668 and they will be set forth in enumerated paragraphs.
1.
On September 17, 1980, Inspector Martin C. Sma~lwood was at
the No. 1 tipple of Commonwealth Mining Co., Inc., in order to inquire
about the operator's training program and some other matters in contemplation that the facility being constructed would soon become operable.
While Inspector Smallwood was there, respondent's President requested
that the inspector come back the next <lay, if possible, and bring an
electrical inspector with him so that the two inspectors could advise
respondent's President as to whether his facility properly complied
with the safety standards.
2.
The next day, September 18, 1980, two inspectors, Smallwood
and Waddles, appeared at the plant. Inspector Waddles is an electrical
inspector and he wrote Citation No. 720668, or Exhibit 1, in this proceeding. In that citation, the inspector stated that the crusher plant
was not provided with frame grounding for the respective metallic structures where electrical motors and circuits are located. The inspector
considered the lack of frame grounding to be a violation of section 77.701
which provides "[m]etallic frames, casings, and other enclosures of
electric equipment that can become 'alive' through failure of insulation
or by contact with energized parts shall be grounded by methods approved
by an authorized representative of the Secretary."
3.
The inspector testified that there was one grounding rod in the
vicinity of the crusher plant. He was uncertain whether the grounding rod
was actually attached to the crusher plant because his citation was
written over a year before the testimony in this case was given and his
1/
Bituminous Coal Operators' Assn. v. Secretary of the Interior, 547 F.2d
Z40 (4th Cir. 1977), and Association of Bituminous Contractors v. Andrus,
581 F.2d 853 (D.C. Cir. 1978).

2886

memory simply wasn't sufficiently perfect to enable him to be certain
as to that point. The inspector said, however, that if one grounding
point had been attached, and he had known it was attached at the time
he wrote his citation, that he would not have written the citation with
respect to the crusher plante It is a fa.ctj however, that the crushing
plant was only part of the facility here because the crusher plant was
also attached to a screening plant and the inspector said that there was
no connection between the screening p.J.ant and the crushing plant which
would have permitted him to find that the screening plant was properly
grounded. Therefore, he stated that his citation had primarily been
written because there was no interconnection between the crushing plant
and the screening plant in the sense that a grounding conductor between
the two facilities had actually been installed.
4.
The inspector was asked several questions about whether the
conveyor belt and its associated framework, which did pass from the
crushing facility to the screening facility, would be sufficient to act
as a ground, and he stated that it was possible that the metal framework on the crusher extending over to the screening facility might act
as a ground in a given situation but that he could not, under the regulations, officially sanction the use of a metal framework on a conveyor
belt as an adequate ground within the meaning of sec.tion 77. 701.
5.
The inspector was also asked by respondent's representative
in this case if the radial. stackers constituted a ground between the
crushing facility and the screening facility and the inspector stated
that he would not accept that as a grounding mechanism either; and,
that he was not acquainted with the exact way that a radial stacker was
constructed, but he still would not consider that to be an adequate
ground for the purpose of meeting the provisions of section 77.701.
6.
The alleged violation was abated rapidly because respondent
sent one of its employees to obtain grounding rods and wire immediately
after the citation was written and some of the grounds were installed on
the same day the citation was written, that is, September 18, 1980; but
there was not at the supply house sufficient wire to complete installation of all of the grounds on September 18 and the remainder were
installed the following Monday, September 22. Therefore, respondent
showed an effort to abate the violation as soon as possible and should
be given full credit for that mitigating factor.
7.
Counsel for the Secretary of Labor stated that since this was
the first inspection made of the facilities of Commonwealth Mining Co.,
Inc., that no previous citation or alleged violations had been written
with respect to Commonwealth Mining Co., Inc.; consequently, there is
no history of previous violations to be considered in this proceeding.
8.
The facilities involved here were leased from another company
and were installed by respondent. Only three employees, plus respondent's
President, worked at the facility which never did process more than 500
tons of coal per day. The facility was not operated by respondent after

July 1981 and has now been removed from the premises where the facilitie~
were located at the time the citations were written. On the basis of
those facts, I find that respondent is a small operator and that insofar
as penalties should be assessed under the criterion of the size of respondent's business, they should be in a low range of magnitude.
9.
Respondent first introduced some exhibits with respect to the
criterion of whether the payment of penalties would cause respondent
to discontinue in business and respondent's representative later stated
that he did not wish to avail himself of a defense insofar as respondent's
financial condition is concerned; and, therefore, respondent's position
in this case is that payment of penalties would not cause respondent to
discontinue in business. Respondent is in business at the present time,
in that it now operates a surface mining facility, but it is no longer
the operator of the tipple which is involved in this proceeding.
10. Respondent's position in this proceeding is based on a combination of arguments and facts. First of all, respondent's testimony
in this proceeding was to the effect that when the facilities here involved were moved from a location in the vicinity of Pikeville to the
place in the vicinity of Whitesburg, where the facilities were operated
at the time the citation was written, a single grounding rod had been
attached to the crusher. When respondent reconstructed the facilities
after moving them from Pikeville to Whitesburg, a single grounding rod
was installed in the same manner that it existed at the previous Pikeville location.
11. Additionally, respondent's President testified that the radial
stackers at the plant had been constructed by driving rods through a
metal plate into the ground and then attaching the radial stackers to
that metal plate, somewhat like a trailer is situated on the fifth
wheel of a tractor. Respondent's position is that the radial stackers,
plus the framework of the conveyor belt referred to in Finding No. 4
above, constituted a grounding mechanism or connection between the screening plant and the crusher. For abatement in this instance, the inspector
required that six grounding rods be driven into the ground around the
screening facility and that an additional five grounding rods be driven
into the ground around the crushing facility.
Those nine findings constitute the necessary facts required for
rendering a decision as to the parties' arguments.
I find that a violation of section 77.701 occurred. I base that
conclusion on the fact that the regulation here involved provided that
the metal frames, casings and other enclosures of electrical equipment
that could become "alive" through failure of insulation should be grounded
by methods approved by an authorized representative of the Secretary.
Respondent's argument that the facility, as it was installed in Pikeville, met all of the criteria of section 77.701 when it was used in
Pikeville and then was cited for a violation under that same section
after it was moved to Whitesburg, is not relevant when it comes to

2888

determining whether there was a violation sufficient to bring about a
possible hazard to people working at the plant.
There is no proof that the facility was inspected in Pikeville for
compliance with the same section here involved. Different inspectors go
to the different facilities and they each have certain points that they
are trying to check for and they are not always uniform in their interpretation of the regulationso The important thing is that an inspector,
in this instance~ examined the facilities here involved after they were
ready to operate in Whitesburg; and, as far as he was concerned, there
was a possibility that the ground that was attached to the crusher was
not sufficient to take care of the possible hazard of an "alive" frame
or piece of equipment in the screening facility. Since he could not be
certain that the metal radial stackers or metal frame on a conveyor belt
was a proper ground, he legitimately came to the conclusion that a violation had occurred.
Respondent's other argument was that since respondent had provided
a single grounding rod for the crusher that it had, at least, made a
bona fide effort to ground the facility. That is a correct statement,
and the inspector's having conceded that there probably was a single
ground for the crusher, is sufficient to show that respondent was nonnegligent in having, so far as it understood the provisions of section
77.701, tried to install a proper ground. In other words, respondent
thought it was complying with section 77.701 until it found a different
interpretation had been given to that section from the one that respondent had previously expected.
In UMWA v. Kleppe, 562 F.2d 1260, p. 1265, (D.C. Cir. 1977), the
Court stated "[s]hould a conflict develop between a statutory interpretation that would promote safety and an interpretation that would serve
another purpose at a possible compromise to safety, the first should be
preferred." In Secretary of Labor v. Ideal Basic Industries, Cement
Division, 3 FMSHRC 843 (1981), the Commission stated that the primary
goal of the regulations and of the Act is to prevent accidents and the
Commission stated that the interpretation which gets closer to the
occurrence of an accident before a correction is required is the one
to be avoided.
In this instance, the inspector could have taken the position, as
was apparently done in Pikeville that a special grounding facility was
not required for the processing plant or to be placed between the two
facilities. The inspector might have taken that position and then,
there might have occurred an improper grounding situation in which someone might have been electrocuted. The inspector took a strict approach
to the effect that additional grounding was required here and I think
that he should be upheld in that position. It is true that the inspector could have stated in his citation that there was not adequate
grounding but, since the testimony shows that that is what the inspector
intended, the factor of whether there was inadequate grounding or no
grounding, can be taken into consideration in assessing the penalty and
it is not a reason for vacating the citation or finding that no violation
occurred.

2889

Respondent has also pointed out that during his testimony, the
inspector stated that there were methods for testing to see whether
grounding is adequate but that the inspector did not make those tests
in this instance. Respondent takes the position that the inspector's
lack of testing prevents the inspector from being certain that respon·dent 1 s single ground was inadequate" Inasmuch as there did not exist
a connection between the crushing facility and the screening facility
which could even be considered to be a proper ground, the inspector
was within a proper interpretation of section 77.701 to say that he was
issuing the citation primarily because of that lack of connection for
the screening facility. Since there was not a proper ground between the
two facilities, it was unnecessary for him to get into the question of
what might have been adequate for the crusher because he thought that
whatever safety that ground might have provided for the crusher, it was
insufficient to make the installation safe as a total facility.
By way of summary, the violation of section 77.701 involves a
small operator. There was no negligence on the part of respondent
because it thought it had installed a satisfactory ground. The violation did not, at the time the inspector made his interpretation, involve
a serious matter because he stated that he saw no poor insulation on
any of the conductors or electrical facilities. Nevertheless, there
existed a potential hazard to the extent of possible electrocution.
Since electrocution still accounts for a lot of deaths in coal mines
and related facilities, there was a cogent reason for this facility to
be grounded properly. At the same time, the evidence fails to show that
there was a hazard at the time the citation was issued. The operator
showed a very rapid effort to achieve compliance by getting the necessary
equipment and beginning the installation of the grounds within the same
day. There is no history of previous violations. Consequently, a large
penalty in this instance would be contrary to the six criteria which are
required to be considered under section llO(i) of the Act. In such circumstances, I find that a penalty of $5 should be assessed.
Citation No. 947345, dated 9/18/80, § 77.206(c)
A few findings of fact are required before a decision is rendered
as to whether a violation occurred.
1.
Inspector Smallwood issued Citation No. 947345 on the same day
that the previous citation discussed above was written. That citation
provides that vertical ladders at fixed locations were not provided with
backguards which extended no more than 7 feet from the bottom of the
ladder to the top of the ladder.
2.
The inspector cited section 77.206(c) as having been violated
and that Regulation reads as follows: "[s]teep or vertical ladders which
are used regularly at fixed locations shall be anchored securely and provided with backguards extending from a point not more than 7 feet from
the bottom of the ladder to the top of the ladder."

2890

3.
In order to understand the factual situation with respect to
the violation here involved, it is necessary to refer to a diagram
which was introduced at the hearing as Exhibit 3. That exhibit shows
that the fixed ladder involved was actually 6-1/2 feet tall and its
bottom began 1-1/2 feet off the ground. The exhibit shows that the
top of the ladder ended at the platform shown on the exhibit and a
handrail is provided on the platform but the handrail is not a part of
the ladder itself. The exhibit also shows that the bottom of the ladder
was 1-1/2 feet off the ground.
4.
The inspector took the position at the hearing that section
77.206(c) requires backguards to be installed if the height of a ladder
is more than 7 feet. The inspector believed that the ladder here involved was more than 7 feet high because he measured the distance from
the ground to the top of the ladder and found the space between the
ground and the top of the ladder to be eight (8') feet and he believed
that the requirements of section 77.206(c) should be applied to any situation where the ladder was in a position enabling a person to climb it
and be off the ground by more than 7 feet and he believed that the protection of the backguard was required in this instance if the height of
the ladder, from the ground to the top, was an 8-foot distance even
though the ladder itself only measured 6-1/2 feet.
I believe that those four findings are all that are needed for
discussing whether a violation occurred because the violation depends on
the interpretation which is given to the language of section 77.206(c).
Respondent took the position at the hearing that the ladder did not
require a backguard because it was only 6-1/2 feet long. Since it was
less than 7 feet, respondent concluded that the section did not require
a backguard on the ladder. Respondent's representative also believed
that adding the 1-1/2 foot distance between the bottom of the ladder
and the ground to obtain the ladder's true height was not appropriate
within the meaning of the regulation becaµse he said that there was no
provision about the distance between the top of the ladder and the
ground or any platform that might be beneath the ladder. He quoted
section 77.206(c) to emphasize that the backguard should not be at a
point more than 7 feet from the bottom of the ladder.
As I have previously indicated in making my conclusions with respect to the violation of section 77.701 discussed above, the courts and
the Commission have emphasized interpretations to be given to the regulations which will promote safety. The interpretation which would
promote safety in this instance is the inspector's interpretation and
the interpretation urged by counsel for the Secretary. If a ladder
starts at a distance above the ground which can be reached by a person
who lifts his or her foot to start the initial ascent of the ladder,
then, at that point, the person taking the first step to the bottom of
the ladder is already off the ground by 1-1/2 feet in this instance.
It could just as easily be 2 feet in another case. By the time a person
reaches the top of the ladder, he or she is 8 feet off the ground in
this instance. If the 7 foot requirement for backguards were applied

2891

on the assumption that a fall for a distance of 7 feet, or more, is
likely to result in serious injury, then, obviously, anyone climbing
a distance which is more than 7 feet off the ground would be exposed
to a possible fall; therefore, the backguard should be required.
In this instance·, the inspector allowed the operator to abate
the violation by placing cinder blocks beneath the bottom of the
ladder so as to make a platform from which a person would ascend the
ladder. Obviously, if one brings the earth or the platform up to the
bottom of the ladder, one eliminates a distance of 1-1/2 feet. Therefore, the ladder did not have to have backguards constructed at all
because increasing the ground level below the ladder eliminated the
possible fall of 7 feet or more. The inspector stated that although
he had allowed abatement to be done in this instance by the construction of a cinder block platform beneath the ladder, he was not certain
that that was the proper way to abate the citation.
Another argument which respondent's representative made in opposition to having to install backguards on a ladder which is only 6-1/2 feet
long, is that he said there was a hinge point in the middle of the ladder
which enabled the operator to raise the ladder for the purpose of cleaning beneath it. He stated that if one were to put a backguard on the
ladder and it extended down past the hinge point, that the ladder would
then be rendered rigid and could not be raised for cleaning purposes.
The obvious reply to that argument is that the backguard can begin at
a point not more than 7 feet from the bottom of the ladder. Therefore,
the backguard could begin just above the center point of the ladder
and provide protection for a person climbing the ladder and still allow
the ladder to be raised for cleaning beneath it.
An additional argument relied upon by respondent is that the facility involved here had been previously installed in Pikeville and had
been approved by MSHA as it was there installed and, that since it had
been approved by MSHA as it existed in Pikeville, that is, using a 6-1/2
foot ladder which did not require a backguard, that it was improper for
the inspector to cite a facility as being in violation of section 77.206(c),
when, in fact, that facility had already been approved by MSHA. Respondent's representative claimed that he had checked with the company that
constructed this facility with the 6-1/2 foot ladder on it and that the
company told him that the ladders had been made 6-1/2 feet tall for the
specific purpose of eliminating the need for the ladders to be equipped
with backguards.
Whether or not the facility had previously been approved by MSHA
is not material when it comes to an interpretation of what section
77.206 means. As counsel for the Secretary has appropriately argued in
this proceeding, the regulation still exists and if MSHA, in approving
this facility, made an interpretation of that regulation which would
bring about less protection than a correct interpretation would provide
for miners, then the facility as it was installed needed to be modified
to provide that protection by either raising the platform or ground
beneath the ladder to a point that a person is not subjected to a fall

2892

of more than 7 feet, or by having the backguard·s installed, as required
by section 77.206(c). Therefore, I find that a violation of section
77.206(c) occurr~d.
In dealing with assessment of a penalty 9 the findings that have
been given above with respect to -se:veral of the assessment criteria are
applicable for this violation also. Respondent is a small operator.
There is no history of previous viola.tions. The work for abating the
violation was_cornrnencecl the same day ·that the violation was cited and was
continued over a period of time until all of the ladders, of which there
were four or five at both the screening plant and the crushing plant,
were all modified to provide for abatement. Insofar as negligence is
concerned, I think here again, respondent would have to be considered
nonnegligent because respondent was relying on its interpretation of
section 77.206(c) as well as the fact that it claims the facility had
been approved by MSHA as it then existed and as it had been originally
constructed. Insofar as gravity is concerned, it was just barely high
enough to require a backguard, so any fall would have been at most from
a height of 8 feet, but it still could have caused an injury which might
have required several days of absence from work and, therefore, was at
least moderately serious. Considering those findings as to the six
criteria, I believe that a penalty of $10 should be assessed for this
violationo
Settlement Agreement
As indicated in the opening paragraph of my bench decision, the parties
entered into a settlement agreement with respect to two of the four violations
for which civil penalties are sought in this proceeding (Tr. 103-104). Under
the settlement agreement, respondent would pay the full amount proposed by
the Assessment Office with respect to a violation of section 77.400 ($24.00)
and a violation of section 77.205(b) ($28.00).
In determining whether the settlement agreement should be accepted,
it is unnecessary to discuss three of the six assessment criteria because
my bench decision already contains findings to the effect that respondent is
a small operator, that payment of penalties will not cause it to discontinue
in business, and that respondent has no history of previous violations.
The remaining three criteria of whether respondent demonstrated a goodf ai th effort to achieve rapid compliance, whether the violation were associated
with negligence, and whether the violations exposed miners to serious or nonserious injury will be considered in evaluating each of the two alleged
violations.
The first violation was alleged in Citation No. 947343 which stated that
respondent had violated section 77.400 by failing to provide a guard on the
chain drive for the feeder under the raw coal hopper. The location of the chain
drive was in a remote place where employees go only when they need to work on
the equipment, so the likelihood of injury was reduced by the location of the

2893

chain drive. The violation was associated with ordinary negligence and a
normal effort was made to achieve rapid compliance because respondent placed
a guard on the chain drive within the time period given by the inspector.
Inasmuch as a small operator is involved, it appears that the penalty o·f
$24 00 proposed by the Assessmen.t Office was Teasonably determined and that
respondent's agreement to pay the full amount pr.oposed by the Assessment Office
should be approved"
c

The second violation involved in the settlement agreement was a violation
of section 77e205(b) alleged in Citation No. 947346 which stated that the
travelways in and around the tipple were not kept free of extraneous material
which constituted stumbling or slipping hazards. In the absence of any details
as to the size and extent of the material which caused the stumbling or slipping
hazards, it is difficult to evaluate respondent's negligence as well as the
gravity of the stumbling or slipping hazards. The subsequent action sheet shows,
however, that respondent cleaned up the extraneous material within the time
allowed by the inspector. In view of the operator's small size, it appears that
the Assessment Office appropriately proposed a penalty of $23.00 for this alleged
violation of section 77.205(b) and that respondent's agreement to pay the full
amount should be approved.
WHEREFORE, it is ordered:
(A) Respondent, within 30 days from the date of this decision, shall
pay civil penalties of $15.00, of which an amount of $5.00 is assessed
for the violation of section 77.701 alleged in Citation No. 720668 dated
September 18, 1980, and of which the remaining amount of $10.00 is assessed
for the violation of section 77.206(c) alleged in Citation No. 947345 dated
September 18, 1980.
(B) The parties' oral request for approval of settlement is granted
and the settlement agreement is approved.
(C) Pursuant to the settlement agreement, respondent, within 30 days
from the date of this decision, shall pay civil penalties totaling $52.00
of which an amount of $24.00 is allocated to the violation of section
77.400 alleged in Citation No. 947343 dated September 18, 1980, and of
which an amount of $28.00 is allocated to the violation of section 77.205(b)
alleged in Citation No. 947346 dated September 18, 1980.
(D)

The total amount due under paragraphs (A) and (C) above is $67.00.

R~eff:~~~

Administrative Law Judge
(Phone: 703-756-6225)

2894

Distribution:
Thomas A. Grooms, Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 280, U.S. Courthouse,. 801 Broadway, Nashville, TN
37203 (Certified Mail)
Commonwealth Mining Co., Inc., Attention: Michael Templeman, President,
P.O. Box 2497, Pikeville, KY 41501 (Certified Mail)

2895

~EDERAL MINE' SAFETY A~~ H{!ALTH REVIEW COMMISSfON
OFFICE OF ADMINISTRATIVE LAW JUDGES

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

DEC 301981

Complaint of Discharge~
Discrimination, or Interference

ERNEST DIALS,
Complainant

v.

Docket No. KENT 81-89-D

WOLF CREEK COLLIERIES,
Respondent
DECISION
Appearances:

Reginald E. Wilcox, Esq., Kirk & Wilcox, Inez, Kentucky,
for Complainant;
Donald Combs, Esq., Stephens, Combs & Page, Pikeville,
Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to an order issued July 15, 1981, as amended August 5, 1981,
October 1, 1981, October 16, 1981, and November 2, 1981, a hearing in the
above-entitled proceeding was held on November 6, 1981, in Prestonsburg,
Kentucky, under section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 815(c)(3).
After the parties had completed their presentations of evidence,
I rendered the bench decision which is reproduced below (Tr. 282-303):
This hearing involves a Complaint of Discharge, Discrimination or
Interference filed on February 19, 1981,. in Docket No. KENT 81-89-D,
by Ernest Dials pursuant to section 105(c)(3) of the Federal Mine Safety
and Health Act of 1977, alleging that complainant was discharged by
respondent, Uolf Creek Collieries, on November 20, 1930, in violation
of section 105(c)(l) of the Act because complainant had made health or
safety complaints to respondent or respondent's agent regarding conditions at respondent's mine.
The issue in this case is whether respondent violated section
105(c)(l) of the Act so as to entitle complainant to the relief of payment of backpay and reinstatement to his former job as requested in his
complaint. The pertinent part of section 105(c)(l) which is involved
in this proceeding, reads as follows:
No person shall discharge or in any manner discriminate against
or cause to be discharged or cause discrimination against or
otherwise interfere with the exercise of the statutory rights
of any miner, representative of miners or applicant for employment in any coal or other mine subject to this Act because such
miner * * * has filed or made a complaint under or related to this
Act, including a complaint notifying the operator or the operator's
agent * * * of an alleged danger or safety or health violation in a
coal or other mine * * * .

2896

I shall ma.ke some findings of fact on which my decision will be
based. The findings will be set forth in enumerated paragraphs.
1.
Complainant, Ernest Dials, had been working for respondent,
Wolf Creek Collieries for about 11-1/2 years before he was discharged
on November 20, 1980. His official job title was truck foreman on the
second shift but, because of an injury unrelated to performance of his
work for respondent, complainant,had been unable to work for about
6 weeks. During complainant's recuperation, respondent appointed
another employee, Raymond Haney, to be truck foreman in complainant's
absence.
2.
When complainant reported to work after his illness, he was
given many different kinds of work to do, ranging from constructing a
bridge floor to substituting for other foremen when they were absent
because of vacation or other reasons. Complainant received his full
salary during his convalescence and his salary was not reduced after
he returned to work and was given a wide variety of duties to perform.
3.
The events of November 18, 19, and 20 leading up to complainant's discharge were discussed by several witnesses. On Tuesday,
November 13, complainant worked with two other men under supervision of
the mine superintendent, Luster Sluss, in installing a floor in a bridge.
On Wednesday, November 19, complainant was ill and did not report for
work on the day shift, but complainant did come to the mine office about
4:00 p.m. on that day to discuss with the Vice President of Operations,
Raymond Freal Mize, a report to the effect that complainant had taken
two tires after work on Tuesday night. Mize had already checked on the
tires and found that they had been taken from the mine site for use on
a piece of respondent's equipment which had previously been loaned to
the Sheriff of Martin County.
4.
Mize told complainant that no one was blaming him for the
tires' disappearance and Mize advised complainant to go home and report
back to work on the day shift at 6:30 a.m. the next day. After Mize
left the office, he went to the supply shop and talked to a mechanic
named Cecil Butcher. Some spare parts were loaded into the truck which
complainant was driving and complainant started to drive to the lOD Mine
which was located some 4 or 5 miles from the mine office. On complainant's way to the lOD Mine, he came to an end loader which was idle.
The operator of the end loader, Brian Webb, was standing near the end
loader and complainant asked Webb if the end loader was in safe condition. Complainant then proceeded to check the lights, the back-up
alarm and other aspects of the end loader and found them to be in satisfactory condition. Complainant then asked Webb if the brakes were
satisfactory and Hebb stated that the brakes on the 560 end loader
being used at that time were not as good as the brakes on one of the
other 560 end loaders, but that the brakes were satisfactory for the
work being done at that time. When Webb indicated to complainant that
the brakes might not be sufficiently adequate on a hill to stop the end
loader readily, complainant ordered Webb to park the end loader and not
operate it until a mechanic had been called to check the brakes.

5.
Complainant did not get out of his truck to operate the end
loader and simply took Webb's statement to be an indication that the
end loader was unsafe. Complainant then called the supervisor on the
second shift, Raymond Haney, and told him that the end loader had been
parked and would not be operated until it could be checked by the mechanic. Complainant had already advised Haney that the trucks which were
hauling coal from the place where Webb was working were unsafe and would
not be permitted to operate. Complainant thereafter called Cecil Butcher,
the mechanic, and asked him to come and check the end loader's brakes.
The mechanic was not certain that complainant had authority to request
him to check the brakes and called Haney to ask if he should do so.
Haney told the mechanic to go ahead and check the brakes.
6.
Butcher went to the location of the end loader and examined
the brakes and decided to adjust them but he did not get into the end
loader and operate it. After he had adjusted the brakes, Butcher left
without checking to see whether the end loader's brakes were in any
better condition after the adjustment than they had been before the
adjustment. The operator of the end loader resumed loading coal because
Haney had succeeded in getting some trucks back to the mine site after
he had examined the trucks and determined that they were satisf actorily equipped with adequate brakes.

7.
Complainant subsequently went from the site of the end loader
to the lOD Mine where the spare parts which had been put in his truck
were unloaded. At approximately that time, complainant received a call
from the Vice President of the company, Freal Mize, to report to the
guard house. Complainant went to the guard house where there were other
personnel, including two truck drivers and a security guard. While
Mize and complainant were talking, the Sheriff of Martin County also
came to the guard house. Mize and complainant had a discussion during
which some additional reference was made to the incident of the tires
having been taken and also to the fact that complainant had stopped the
end loader from operating; finally, Mize told complainant that he should
leave the mine site and go home and return to work the next day, as he
had previously been instructed to do.
8.
Complainant states that Mize indicated, at that time, that if
complainant did not get off of the mine property and start following
instructions that he might be discharged and complainant asked Mize
if that meant that he was discharged and Mize said that complainant
could interpret that remark any way he wished to.

9.
The next morning, November 20, 1930, complainant returned to
the mine as he had been instructed to do. Complainant went to the mine
office and stayed in the vicinity of the mine office because he claimed
that he could not locate Sluss, the superintendent, to whom he had been
instructed to report on November 20. After complainant had been in the
vicinity of the mine office for approximately 1-1/2 hours, Mize appeared
and told complainant that he was being discharged for unsatisfactory
work.

2898

10. Complainant contends that the only reason that Hize could have
had for discharging him was that he had stopped the end loader and trucks
from operating on the previous day and that Mize was upset with his having
done so. Complainant also states that it was a frequent, in fact, almost
daily, occurrence that he would order equ.ipment to be taken out of service
because it was unsafe. He also allege.s that he was told to operate a
truck, on one occasion, with defective Jacobs brake at a time when the
oil gauge showed only 30 pounds of pressure, whereas, according to com·-:
plainant, the oil pressure should be in the neighborhood of 85 pounds in
order for the Jacobs brake to work properly. Complainant also contends
that he was told to allow equipment to be operated on other occasions when
he considered it to be unsafe.
11. The Vice President of Operations, Freal Mize, testified that
complainant had been discharged on November 20 for the many disruptive
acts that he had committed on November 19. After Mize had returned home
and had eaten dinner on November 19, he started getting reports about
complainant's activities at the mine site. Around 8:30 p.m. Mize was informed that complainant had returned to mine property and had been challenged by the security guard, but the guard had allowed entrance because
complainant had said that if the security guard didn't let him go by the
guard house, that there were other ways he could enter mine property.
Even though the security guard allowed complainant to enter mine property,
he called Hize about it because he was not sure that complainant should
be on mine property at that time of night because it was not complainant's wm:king shift at that time.
The activities in which complainant engaged that evening are hereinafter described. Complainant went to the area of the unloading of coal
and told Haney, who was supervising the surface activity of the loading
and unloading of coal on the second shift, that he was going to close
down Haney's operation. Complainant then went to the lOD underground
mine and talked to Clay Dials, who was working at the lOD Mine, and advised the employees in the lOD Mine that they should come out of the mine
because a Federal inspection was going to be made at the mine at 9:00 p.m.
Complainant thereafter went to the No. 11 underground mine and used the
mine telephone to call underground and talk to a roof. bolter named Joey
Stepp. A considerable discussion ensued which was overheard by the mine
foreman, Roger Scott. At first, complainant tried to get Stepp to have
the men leave the mine because complainant said that he was on strike
because of his treatment by the Vice President. According to Scott,
the latter part of Stepp's and complainant's conversation showed that
complainant had decided not to ask the men to walk out on strike. Instead, complainant asked Stepp to meet him about 12:30 a.m., after the
second shift had been completed, for the purpose of helping complainant
to set up a picket line at the mine site.
12. Mize also testified that complainant had returned to mine
property so late in the evening of November 19 that the security guards
were worried about his presence and Mize advised them to find complainant and remove him bodily from mine property. The security guards were
reluctant to do so by themselves. Therefore, a deputy sheriff was asked

2899

to come and assist the security guards in getting complainant to leave
mine property. As it turned out, the security guard and the deputy
sheriff were unable to find complainant and it is assumed that complainant left mine property by some exit other than coming by the guard
house. It was Mize's contention at the hearing that he had discharged
complainant because complainant had interfered with the mine's operation
and had tried to close down the surface activity, as well as the underground mine Noso 11 and lOD. Complainant has never had any authority
at all in the operation of the underground mines and, as has been indicated above, complainant's employment status on November 19 was not that
of a truck foreman on any of the shifts. Instead, after the convalescence referred to in Finding No. 2 above, complainant had been given work
as a substitute foreman and had been assigned other kinds of work on a
day-to-day basis.
13. The testimony of Mize was corroborated in this proceeding by
other witnesses. Raymond Haney, the truck foreman on the night shift,
stated that it was a fact that complainant had tried to close down his
operation on the evening of November 19. Haney testified that he checked
the end loader after its brakes had been adjusted by Butcher, the mechanic,
and that Webb, the operator of the end loader, was satisfied that the
brakes were in satisfactory condition; that there was no reason that coal
could not be loaded without any hazardous exposure of miners to injury.
Haney also testified that, insofar as a Jacobs brake on a truck is concerned, he had operated a truck for a number of years even though he does
not have a left arni. Since a Jacobs brake is operated by a lever located
in the left corner of the windshield, it would have been difficult for
him to have used such a brake because of his missing left arm. Therefore, Haney stated that he never used a Jacobs brake and felt that any
truck was safe so long as its other brakes were working. In fact, Haney
did not even think Jacobs brakes were desirable. Haney stated that he
checked with the drivers of the coal trucks on the evening of November 19,
and that they assured him their brakes were satisfactory. He asked a
number of the drivers to stop their trucks while loaded, and they were
able to stop in a normal distance; therefore, he believed that there was
no basis for complainant's contention that the trucks were unsafe.
14. Brian Webb, the operator of the end loader, which was ordered
to be parked by complainant, stated that he was standing by the end
loader at the time that complainant came by and that he had not stopped
operating the end loader because of any unsafe condition on it, but
because there were no trucks available to load at that moment, and he
had gotten out of the end loader to stretch himself and to get close to
a nearby fire to warm himself. He said the end loader was parked at
complainant's instructions only because complainant had previously been
a foreman and Webb had never been told not to take instructions from
complainant even though Webb knew on November 19 that complainant was
not his immediate supervisor on that shift. After the brakes had been
adjusted by Butcher, Webb continued to load coal on the second shift
without any further problems. Webb also testified, contrary to complainant's contention, that he had not been told by the mechanic that the end
loader should be used only on the level on which it was being used the
evening that complainant had required the end loader to be stopped.

2900

15. The mechanic who repaired the end loader, Cecil Butcher, stated
that he could not recall for certain whether he had ever told Haney or
Webb that the end loader should be used only on level ground; that is,
that it should not be taken down a hill. Butcher's testimony is somewhat
inconsistent as to whether he did or did not know that the end loader
needed additional work to be done on its brakes because he first stated
that he might or might not have said that the end loader should not be
operated on a hill. Later he stated that he had not operated the end
loader, personally, on November 19 and could not state for certain whether
it was safe on a hill or not. Thereafter, though, he stated that about
a week after the incident of November 19, the brakes on the end loader
had been overhauled. Therefore, it is possible that the brakes on the
end loader would not have been sufficient to hold it on a hill; but since
complainant didn't operate the end loader and Butcher did not personally
operate the end loader, the only testimony in the proceeding which is reliable and probative is the testimony of the operator of the end loader,
Brian Webb, who stated that the brakes were satisfactory; that he had had
no problem with them before complainant ordered the end loader to be
stopped, and that he had no problem with the end loader after the brakes
had been adjusted.
16. The superintendent or foreman at the No. 11 Mine, Roger Dale
Scott, testified that it was correct that complainant had come to his
No. 11 Mine about 8:30 p.m. and had asked to speak to Joey Stepp on the
mine phone; that Scott allowed complainant to do so, and it was at that
time that Scott overheard complainant state that he was going to set up
a picket line. There are exhibits in evidence which show that complainant did subsequently set up a picket line at the mine and it was necessary for respondent to get a temporary restraining order to prohibit
complainant from continuing to picket at the mine.
The above findings of fact are sufficient for rendering a decision
in this case. Although it is true that complainant on November 19 did
have an end loader to stop operating because there was a doubt about the
effectiveness of the end loader's brakes, there has been no testimony by
anyone that any of the trucks which were stopped by complainant actually
had defective brakes. Even complainant did not state that he personally
had examined any of the trucks and knew for a fact that their brakes
were defective. Therefore, if there is to be any finding to the effect
that complainant was discharged because of his having made safety complaints at respondent's mine, that finding would have to be made with
respect to the end loader.
It is probably true that Mize, the Vice President who discharged
complainant, was upset about complainant's having stopped the end loader
from operating because of alleged unsafe brakes. The testimony, however,
shows that Mize was upset more because complainant had done that stopping
of the end loader at a time when he was not officially in charge of the
personnel who were working at the mine. The complainant had been told
to go home and return the next day to work on the day shift. Complainant had come to the mine on his own volition on November 19 to complain
about questions having been raised as to his integrity in allowing tires

2901

to be put ·on some of respondent~s equipment which had been loaned to the
sheriff. Complainant then ignored his supervisor's instructions about
his need to be on mine property. Consequently, even though the brakes
may have needed adjusting on the end loader, the fact that that adjustment was performed and th~t complainant had asked that the brakes be
inspected 9 appears in no way to have had a bearing on complainant's
discharge.
It is a fact that when complainant was told to leave the mine on
November 19 in the neighborhood of 5:00 p.m., and later in the neighborhood of 7:00 to 7:30 p.m., there was no mention that he had been discharged for certain. If complainant had known that he had been discharged,
or thought for certain that he had been discharged on November 19, he,
of course, would not have reported for work at the mine on November 20,
as Mize had instructed him to do.
The fact that complainant was discharged early in the morning on
November 20 shows that something unusual had to have occurred between the
time complainant left the mine on November 19 and the time that he was
dscharged on November 20. Since complainant had engaged in a large number
of disruptive activities which were certainly not in pursuit of tasks that
he had been officially hired to do, his authority for engaging in any of
the aforementioned activities on November 19 is entirely lacking. Complainant tried to justify his having stopped the end loader on November 19,
on the basis that he had previously been a supervisor and that it was the
company's policy that any supervisor could stop unsafe activities no
matter when he saw those activities or whether they occurred on his own
shift or some other supervisor's shift.
It is significant that no specific action was' taken by Mize to fire
complainant on November 19 at a time when the only knowledge Mize had
as to complainant's activities was that he had stopped the end loader
until its brakes could be checked. If Mize was upset over that incident
enough to have discharged him, there is no reason for Mize to have told
complainant that complainant could use his own judgment as to whether
Mize's remarks meant that complainant had been discharged on November 19.
On November 20, when Mize did discharge complainant, he left no doubt
about the fact that complainant had been discharged. The reason for the
discharge on November 20 was solely related to complainant's unauthorized and unwarranted attempt to cause trouble at three different mines
in retaliation for the fact that complainant had been told to go home
and come back to work the next day when his anger about the incident of
the tires had subsided.
It should be noted that complainant's action of trying to get the
superintendent of the !OD Mine to withdraw his miners because there was
allegedly going to be ·a Federal inspection at the mine at 9:00 p.m. was
especially reprehensible conduct in view of the fact that section llO(e)
of the Act provides that "[u]nless otherwise authorized by this Act, any
person who gives advance notice of any inspection to be conducted under
this Act shall, upon conviction, be punished by a fine of not more than
$1,000 or by imprisonment for not more than six months, or both." In
light of the fact that complainant had violated the spirit of the Act in

2902

deliberately announcing a bogus inspection as part of his retaliatory
conduct of November 19, it ill behooves him to come into this proceeding
with a claim that he was discharged because respondent had violated
section 105(c)(l) of the Act by discharging him because of alleged complaints about the lack of adequete brakes on an end loader.
In Fasula v. Consolidation Coal Co., ~ FMSHRC 2786 (1980), 1/ the
Commission stated that if a miner's evidence, in general, shows that he
engaged in a protected activity and thatthe adverse action or discharge
was motivated in any part by the protected activity, it is complainant's
obligation to prove that he was discharged for such protected activity.
The Commission stated that if complainant sustains his burden in the
first instance, respondent then has the burden of showing by a preponderance of the evidence that even if some aspects of its discharge were
motivated by the complainant's protected activity, that complainant
would, nevertheless, have been discharged in any event for unprotected
activities alone.
At the conclusion of complainant's testimony, I denied a motion by
respondent's counsel to dismiss the complaint because of complainant's
failure to maintain a prima facie case of discharge for protected activity. On the basis of complainant's testimony, if it had not been completely rebutted by respondent, I would have held that there was no
apparent reason for complainant to have been discharged other than for
his having stopped the end loader from operating on November 19.
Now that I have heard respondent's evidence, however, it is clear
that complainant's credibility has been greatly impaired by his omission
of occurrences on November 19 and by his failure to explain or justify
his activities at the mine on the evening of November 19. Respondent's
evidence supports a finding that complainant would have been discharged
regardless of his alleged protected activity and shows, in addition,
that respondent's reason for discharging complainant had no actual relationship to the stopping of the end loader from operating. The most
that can be said as to complainant's alleged protected activity is that
he stopped an end loader from operating at a time when he was not on
official duty and was not clothed with supervisory powers. After complainant had stopped the end loader, he thereafter tried to stop normal
mining activities at three different mines even though he made absolutely
no allegations that his disruptive acts had any relation to health or
safety matters of any kind.
Consequently, I believe that the Fasula case, supra, is inapplicable to this proceeding because respondent's evidence shows that complainant was solely discharged for reasons other than his alleged
protected activities.

1/
The Fasula case was reversed on grounds not here discussed in Consolidation
Coal Co. v. Fasula, et al.,
F.2d
(No. 80-2600, 3d Cir., decided
Oct. 30, 1981).
~~

2903

WHEREFORE, it is ordered:
The Complaint of Discharge, Discrimination, or Interference filed in
Docket No. KENT 81-89-D is denied because of complainant's failure to prove
that his discharge was motivated by any activity protected under section
105(c) (1) of the Federal Mine Safety a.nd Health Act of 1977.

R~ff~sJ~

Administrative Law Judge
(Phone: 703-756-6225)
Distribution:

Reginald E. Wilcox, Esq., Attorney for Ernest Dials, Kirk & Wilcox,
Cain Building, Inez, KY 41224 (Certified Mail)
Donald Combs, Esq., Attorney for Wolf Creek Collieries, Stephens,
Combs & Page, First National Bank Building, P.O. Drawer 31,
Pikeville, KY 41501 (Certified Mail)
MSHA, Special Investigations, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203
Assistant Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203

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

DEC 3o1981
CONSOLIDATION COAL COMPANY,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Notice of Contest
Docket No. LAKE 80-352-R
Citation No. 823213
June 9, 1980

Respondent

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

Franklin Highwall No. 65 Mine

Civil Penalty Proceeding
Petitioner

Docket No. LAKE 81-67
A/O No. 33-01065-03028F

v.

Franklin Highwall No. 65 Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Patrick M. Zohn, Esq., Office of the Solicitor, U.S.
Department of Labor, Cleveland, Ohio, for the Secretary of
Labor;
Jerry F. Palmer, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for Consolidation Coal Company.

Before:

Judge Cook

I.

Procedural Background

On July 7, 1980, Consolidation Coal Company (Consol) filed a notice of
contest in Docket No. LAKE 80-352-R pursuant to section 105(d) ±./ of the

1_/

Section 105(d) of the 1977 Mine Act provides as follows:
"If, within 30 days of receipt thereof, an operator of a coal or other
mine notifies the Secretary that he intends to contest the issuance or
modification of an order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or
(b) of this section, or the reasonableness of the length of abatement time
fixed in a citation or modification thereof issued under section 104, or

2905

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~·
(Supp. III 1979) (1977 Mine Act), to contest section 104(d)(l) 2/ Citation
No. 823213. The notice of contest states, in part, as follows:1. At or about 1200 hours on June 9, 1980, Federal
Coal Mine Inspector, Jack C. Cologie, (A.R. 2-1548) representing himself to be a duly authorized representative of
the Secretary of Labor (hereinafter "Inspector") issued
Citation No. 0823213 (hereinafter "Citation") pursuant to
the provisions contained in Section 104(d)(l) of the Act to
Mike Torchik, Safety Supervisor, for a condition he allegedly
fn. 1 (continued)
any miner or representative of miners notifies the Secretary of an intention to contest the issuance, modification, or termination of any order
issued under section 104, or the reasonableness of the length of time set
for abatement by a citation or modification thereof issued under section
104, the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing (in
accordance with section 554 of title 5, United States Code, but without
regard to subsection (a)(3) of such section), and thereafter shall issue
an order, based on findings of fact, affirming, modifying, or vacating the
Secretary's citation, order, or proposed penalty, or directing other appropriate relief. Such order shall become final 30 days after its issuance.
The rules of procedure prescribed by the Commission shall provide affected
miners or representatives of affected miners an opportunity to participate
as parties to hearings under this section. The Commission shall take whatever action is necessary to expedite proceedings for hearing appeals of
orders issued under section 104."
2/ Section 104(d)(l) of the 1977 Mine Act provides as follows:
"If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any
mandatory health or safety standard, and if he also finds that, while the
conditions created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health
hazard, and if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation given to the
operator under this Act. If, during the same inspection or any subsequent
inspection of such mine within 90 days after the issuance of such citation,
an authorized representative of the Secretary finds another violation of
any mandatory health or safety standard and finds such violation to be also
caused by an unwarrantable failure of such operator to so comply, he shall
forthwith issue an order requiring the operator to cause all persons in the
area affected by such violation, except those persons referred to in subsection (c) to be withdrawn from, and to be prohibited from entering, such
area until an authorized representative of the Secretary determines that
such violation has been abated."

2906

observed during an "AFB" inspection (accident inspection) in
the Franklin Highwall #65 Mine, Identification No. 33-01065,
located in Ohio. A copy of this Citation is attached hereto
as Exhibit "A" in accordance with 29 C.F.R. Section 2700.20(c).
2. Said Citation under that heading captioned "Condition
or Practice" alleges that:
"Ari accident investigation revealed that
work was being performed underneath an automobile
in the outside maintenance shop on June 7, 1980.
The automobile was raised with an electric hoist
and was not blocked before the maintenan~e foreman began working underneath the vehicle. Ed
Blazeski was the maintenance foreman. This was
unwarrantable failure.

3. Said Citation contained the allegation that the above
condition or practice constituted a violation of 30 C.F.R.
77.405(b), a mandatory health or safety standard and that
the alleged violation was of such a nature that it could
significantly and substantially contribute to the cause and
effect of a mine safety or health ha.zard. The Inspector
further determined that the alleged violation was caused by
an unwarrantable failure to comply with the stated standard.
4. At or about 0900 hours on June 10, 1980, Inspector
Cologie issued a termination of said Citation. A copy of
this termination is attached hereto as Exhibit "Al."
5. Consol avers that the Citation is invalid and void,
and in support of its position states:
(a) That the Citation fails to cite a condition or
practice which constituted a violation of mandatory health
or safety standard 30 C.F.R. 77.405(b), and
(b) That the Citation fails to cite a condition or
practice caused by an unwarrantable failure of Consol to
comply with any mandatory health or safety standard;
(c) That the Citation fails to state a condition or
practice which could significantly and substantially
contribute to the cause and/or effect of a mine safety
or health hazard;
(d) That several assertions contained in the Citation
and upon which the Citation was based are inaccurate.

2907

6. Consol requests an investigation of this Citation and
further requests Cadiz, Ohio as the site for a public hearing
on this Notice of Contest.
WHEREFORE, Consol respectfully requests that its Notice
of Contest be granted and for all of the above and other
good reasons, Consol additionally requests that the subject
Citation be vacated or set aside and that all actions taken
or to be taken with respect thereto or in consequence
thereof be declared null, void and of no effect.
An answer was filed by the Secretary of Labor (Secretary) on October 27,
1980. In his answer, the Secretary (1) admitted the issuance of Citation
No. 823213 and stated that it was properly issued pursuant to section 104(d)
of the 1977 Mine Act; (2) submitted that Consol violated a mandatory standard
and that such violation was caused by Consol's unwarrantable failure to comply with the cited mandatory standard; (3) specifically denied the allegations set forth in Paragraph Nos. S(a), S(b), 5(c), and S(d) of Consol's
notice of contest; and (4) denied all other allegations set forth in Consol's
notice of contest. The Secretary prayed for the entry of an order denying
the relief requested by Consol and affirming the citation.
On November 10, 1980, Consol filed a motion requesting, amongst other
things, the entry of an order continuing the proceeding pending the filing
of the associated civil penalty case. The requested continuance was granted
on December 9, 1980.

On January 26, 1981, the Secretary filed a proposal for a penalty in the
associated civil penalty case, Docket No. LAKE 81-67, pursuant to section
llO(a) of the 1977 Act praying for the assessment of a civil penalty for the
alleged violation of mandatory safety standard 30 C.F.R. § 77.405(b) set
forth in Citation No. 823213. Consol filed an answer on February 13, 1981.
Rule 27(d) of the Rules of Procedure of the Federal Mine Safety and
Health Review Commission, 29 C.F.R. § 2700.27(d) (1980), requires that "[a]
legible copy of each citation or order for which a penalty is sought shall
be attached to the proposal [for a penalty filed by the Secretary]." The
proposal for a penalty filed on January 26, 1981, failed, to comply with this
requirement in th~t a copy of section 103(k) Order No. 823212 was attached
thereto instead of a copy of Citation No. 823213. On April 7, 1981, the
Secretary filed a motion to amend the proposal for a penalty to substitute
a copy of Citation No. 823213 and related attachments for those filed on
January 26, 1981. The motion was granted on April 23, 1981.
Pursuant to various notices, the hearing was held on May 1, 1981, with
representatives of both parties present and participating. Consol moved to
dismiss the charge of violation at the close of the Secretary's case-in-chief.
A ruling on the motion is set forth herein. Additionally, the record was left
open for the posthearing filing of a computer printout setting forth the

2900

history of previous violations at Consol's Franklin Highwall No. 65 Mine.
On May 27, 1981, the Secretary filed the computer printout, and on June 12,
1981, Consol filed a written communication stating that it had no objection
to the document's receipt in evidence. Accordingly, on June 15, 1981, an
order was issued receiving the computer printout, denominated as Exhibit M-1,
in evidence.
At the conclusion of the hearing on May 1, 1981, a schedule was set for
the filing of posthearing briefs and proposed findings of fact and conclusions
of law. However, the schedule was later revised due to difficulties experienced by counsel. The Secretary and Consol filed posthearing briefs on July 7,
1981, and July 8, 1981, respectively. The Secretary filed a reply brief on
July 27, 1981. Consol filed a reply brief and proposed findings of fact and
proposed conclusions of law on July 27, 1981.
II.

III.

Violation Charged in Docket No. LAKE 81-67
Citation No.

Date

30 C.F.R. Standard

823213

June 9, 1980

77.405(b)

Witnesses and Exhibits
A.

Witnesses

The Secretary called Federal mine inspector Jack Ao Cologie as a witness.
Consol called as its witnesses Mr. Ted Kovalski, superintendent of the
Franklin Highwall No. 65 Mine; Mr. James M. Maynard, the mine engineer at the
Franklin Highwall No. 65 Mine; and Mr. Michael A. Torchik, a safety supervisor at the Franklin Highwall No. 65 Mine.
B.

Exhibits

1.

The Secretary introduced the following exhibits in evidence:

M-1 is a computer printout compiled by the Directorate of Assessments
setting forth the history of previous violations at Consol's Franklin Highwall
No. 65 Mine, beginning June 6, 1978, and ending June 5, 1980.
M-2 is a diagram of the maintenance shop where the accident occurred.
§

M-3 is a copy of Citation No. 823213, June 9, 1980, 30 C.F.Ro
77.405(b), and a copy of the termination thereof.
2.

Consol introduced the following exhibit in evidence:

0-1 is a diagram styled "Franklin Highwall No. 65 Mine New Portal
Facilities" which depicts the layout of the mine showing the office, the
parking lot, and the maintenance shop where the accident occurred.

2909

IV.

Issues

A. The general question presented in the above-captioned notice of contest proceeding is whether Citation No. 823213 was validly issued pursuant to
section 104(d)(l) of the 1977 Mine Act. 1/ The specific issues presented as
to the citation's validity are as follows:
1. Whether the condition or practice described in Citation No. 823213
occurred.
2. If the condition or practice described in Citation No. 823213
occurred, then whether such condition or practice constituted a violation
of mandatory safety standard 30 C.F.R. § 77.405(b).
3. If the condition or practice described in Citation No. 823213
occurred, and if such condition or practice constituted a violation of
mandatory safety standard 30 C.F.R. § 77.405(b), then whether such violation was caused by Consol's unwarrantable failure to comply with such
mandatory safety standard.
B. Two basic issues are involved in the above-captioned civil penalty
proceeding: (1) did a violation of mandatory safety standard 30 C.F.R.
§ 77.405(b) occur, and (2) what amount should be assessed as a penalty if a
violation is found to have occurred? In determining the amount of civil penalty that should be assessed for a violation, the law requires that six factors be considered: (1) history of previous violations; (2) appropriateness
of the penalty to the size of the operator's business; (3) whether the operator was negligent; (4) effect of the penalty on the operator's ability to
continue in business; (5) gravity of the violation; and (6) the operator's
good faith in attempting rapid abatement of the violation.
3/ Section 104(d)(l) of the 1977 Mine Act provides for the issuance of a
citation when an authorized representative of the Secretary of Labor, upon
any inspection of a coal or other mine, finds: (1) that there has been a
violation of any mandatory health or safety standard; (2) that, while the
conditions created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and substantially
contribute to the cause and effect of a mine safety or health hazard; and
(3) that such violation was caused by the mine operator's unwarrantable
failure to comply with such mandatory health or safety standard.
Consol's July 7, 1980, notice of contest specifically raised the issue
as to whether the alleged violation was of such nature as could significantly
and substantially contribute to the cause and effect of a mine safety or
health hazard. However, at the beginning of the hearing on May 1, 1981,
counsel for Consol withdrew his challenge to the significant and substantial
criterion by stating that he would not make it an issue. Accordingly, the
Secretary was relieved of his burden of presenting· a prima facie case as
to such issue. See Youngstown Mines Corporation, 3 FMSHRC 1793, 1802-1803
(1981) (Cook, J.).

2910

V.

Opinion and Findings of Fact
A.

Stipulations

1. Consol is the owner and operator of the Franklin Highwall No. 65 Mine
located in Harrison County, Ohio (Tr. 8-10).
2. Consol and its Franklin Highwall No. 65 Mine are subject to the jurisdiction of the 1977 Mine Act (Tr. 8-10).
3. The Federal Mine Safety and Health Review Commission has jurisdiction
of this case (Tr. 8-10).
4. The inspector who issued Citation No. 823213 was a duly authorized
representative of the Secretary (Tr. 8-10).
5. A true and correct copy of Citation No. 823213 was properly served
upon the mine operator (Tr. 8-10).
6.

The alleged violation was abated in good faith (Tr. 8-10).

7. Any civil penalty assessed in Docket No. LAKE 81-67 will not affect
the mine operator's ability to continue in business (Tr. 8-10).
8. The size of Consol is rated at 44,855,465 tons annually and the size
of the Franklin Highwall No. 65 Mine is rated at 409,437 tons annually (Tr.

9).
B.

Consol's Motion to Vacate the Citation at the Close of the Secretary's
Case-in-chief

Citation No. 823213 charges Consol with a violation of mandatory safety
standard 30 C.F.R. § 77.405(b) in connection with an accident which occurred
at its Franklin Highwall No. 65 Mine on June 7, 1980. !:!:../ The citation
alleges, in pertinent part, as follows:

An accident investigation revealed that work was being
performed underneath an automobile in the outside maintenance shop on June 7, 1980. The automobile was raised with
an electric hoist and was not blocked before the maintenance
foreman began working underneath the vehicle. Edmund
Blazeski was the maintenance foreman.
(Exh. M-3).
Mandatory safety standard 30 C.F.R. § 77.405(b) requires that "[n]o
work shall be performed under machinery or equipment that has been raised
until such machinery or equipment has been securely blocked in position."
4/ The citation was issued on June 9, 1980, by Federal mine inspector Jack Ao
Cologie.

2911

Consol moved to dismiss the charge of violation at the close of the
Secretary's case-in-chief and set forth two grounds in support thereof. The
motion was taken under advisement to be ruled upon at the time of the writing
of the decision based solely upon the evidence contained in the record when
the motion was made.
Neither the Rules of Procedure of the Federal Mine Safety and Healtlt
Review Commission, nor the Administrative Procedure Act, nor the 1977 Mine
Act set forth express standards governing the disposition of motions to dis~
miss at the close of an opposing party's case-in-chief. It is therefore
appropriate to consult the Federal Rules of Civil Procedure for guidance.
29 C.F.R. § 2700.l(b) (1980).
Rule 4l(b) of the Federal Rules of Civil Procedure provides, in part,
as follows:
After the plaintiff, in an action tried by the court without
a jury, has completed the presentation of his evidence, the
defendant, without waiving his right to offer evidence in the
event the motion is not granted, may move for a dismissal on
the ground that upon the facts and the law the plaintiff has
shown no right to relief. The court as trier of the facts
may then determine them and render judgment against the
plaintiff or may decline to render any judgment until the
close of all the evidence.
In ruling upon a Rule 41(b) motion to dismiss, the trial court is
empowered to weigh the evidence, consider the law, and find for the defendant
at the close of the plaintiff's case-in-chief. 5 J. MOORE, FEDERAL PRACTICE 9
, 41.13[4] at pp. 41-189 - 41-192 (1980). The trial court may grant the
defendant's motion when the plaintiff fails to present sufficient evidence
during its case-in-chief to satisfy its burden of proof. See Brennan v. Sine,
495 F.2d 875 (10th Cir. 1974); Woods v. North American Rock.Well Corporati~
480 F.2d 644 (10th Cir. 1973); Pittston-Luzerne Corporation v. United States,
176 F. Supp. 641 (M.D. Pa. 1959).
The Secretary proved during his case-in-chief, and I find, that on
Saturday, June 7, 1980, Mr. Edmond Blazeski, the master mechanic 5/ at
Consol's Franklin Highwall No. 65 Mine, used the facilities at the maintenance
shop to perform work on his personal 1974 Cadillac. He had previously welded
5/ The evidence shows that a master mechanic is a high-ranking supervisory
employee. According to Inspector Cologie, a master mechanic is in overall
charge of maintenance and equipment with a nwnber of workers and foremen
under him. Mr. Ted Kovalski, the superintendent of the Franklin Highwall
No. 65 Mine, testified during Consol's case-in-chief that a master mechanic
ranks higher than a maintenance foreman. According to Mr. Kovalski,
Mr. Blazeski was in charge of five maintenance foremen and 15 to 20 union
people. Mr. Blazeski, in turn, reported to Mr. Kovalski.

2912

the muffler and was wiring it back to prevent it from rubbing against the
drive shaft. The rear of the car was held in a raised position by a nylon
sling attached to an overhead electric traveling hoist. Header blocks were
placed in front of the front wheels to block the car against forward motiono
However, the rear portion of the car was not blocked so as to prevent the car
from falling on an individual performing work under it. At some point in time
between 11 a.m. and 12:30 p.m., the nylon sling broke causing the car to~
fall on Mr. Blazeski. ~/ He died of his injuries on June 27, 1980. !_/
The first argument advanced by Consol in support of its motion to dismiss the charge of violation is that the Secretary failed to adduce reliable,
probative, and substantial evidence to prove that the car was not securely
and properly blocked. Consol's argument is without foundation. The evidence
adduced by the Secretary and the rational inferences drawn therefrom prove
that at the time of the accident, Mr. Blazeski was working under the car and
that it was not properly and securely blocked. Accordingly, it must be concluded that the Secretary met his burden of proof on this issue during his
case-in-chief. ~/
The second argument advanced by Consol in support of its motion to dismiss the charge of violation is that the phrase "machinery or equipment" used
6/

There were no eyewitnesses to the accident (Tr. 55).
The evidence presented during the Secretary's case-in-chief and the
rational inferences drawn therefrom show that Mr. Blazeski was acting outside
the scope of his employment duties at the time of the accident. Although not
dispositve of the issues presented herein, the evidence presented during
Consol's case-in-chief shows: (1) that Mr. Blazeski was off duty at the time
of the accident; (2) that Mr. Blazeski was in violation of company policy at
the time of the accident in that company policy prohibited the use of company
facilities, supplies, or equipment for anything other than company business;
and (3) that neither Mr. Kovalski, Mr. Blazeski's supervisor, nor Mr. James M.
Maynard, the mine engineer, knew or had reason to know of Mr. Blazeski's
unauthorized activities.
8/ There was considerable conflict in the evidence on the record as a whole
as to whether suitable blocking material was present in or around the maintenance shop. Inspector Cologie testified during the Secretary's case-inchief that a search was conducted during the Mine Safety and Health
Administration's accident investigation but that no blocks suitable for
blocking were found either inside or outside the maintenance shop. He
reiterated this position when recalled as a rebuttal witness on behalf of the
Secretary. However, Messrs. Kovalski and Torchik testified during Consol's
case-in-chief that crib blocks were present at the maintenance shop.
It is unnecessary to resolve this conflict in the testimony. The evi~
dence presented during the Secretary's case-in-chief and the evidence on the
record as a whole shows that the car was not properly and securely blocked
at the time of the accident. It should be noted that Consol failed to present persuasive evidence during its case-in-chief to rebut the Secretary's
prima facie case on this issue.

71

2913

in mandatory safety standard 30 C.F.R. § 77.405(b) does not encompass personal automobiles. According to Consol, the mandatory safety standard
applies only with respect to machinery or equipment used in the operation of
a coal mine. The Secretary disagrees, maintaining that the mandatory safety
standard applies to any type of machinery or equipment, including personal
automobiles, as long as such machinery or equipment is located on coal mine
property.
~
Mandatory safety standard 30 CoF.R. § 77.405(b) was originally promulgated pursuant to section lOl(i) of the Federal Coal Mine Health and Safety
Act of 1969, 30 U.S.C. § 801 et seq. (1970) (1969 Coal Act); see 36 Fed. Reg.
9364, 9370 (May 22, 1971). J../~The 1969 Coal Act was remedial legislation~
designed to secure a safe and healthful work environment for those miners
working in coal mines which were subject to its provisions. See section 2
of the 1969 Coal Act. To this end, Congress set forth both a-series of
interim mandatory health and safety standards and procedures for the promulgation of new and improved mandatory health and safety standards. See sections 101, 201 through 206, and 301 through 317 of the 1969 Coal Act. The
purpose of a mandatory safety standard was summarized on the floor of the
United States Senate by Senator Harrison Williams as follows:
To ward off the heavy toll of on-the-job fatalities and
injuries, S. 2917 provides both a comprehensive set of interim
safety standards and authority in the Secretary of the Interior
to promulgate new and improved standardso The interim safety.
standards in the bill are directed at eliminating the extreme
hazards of coal mining. [Emphasis added.]
LEGISLATIVE HISTORY OF THE FEDERAL COAL MINE HEALTH AND SAFETY ACT OF L969
at 244 (1975).
Although the terms "machinery" and "equipment" are not defined within
Part 77 of Title 30 of the Code of Federal Regulations, it is clear that the
mandatory safety standard in which they appear is propertly directed only
towards the prevention of job-related injuries and fatalities. Therefore,
I conclude that the phrase "machinery or equipment," as used in mandatory
safety standard 30 C.F.R. § 77.405(b), encompasses only machinery or equipment used in or to be used in the operation of a coal mine. A personal
automobile, such as the one involved herein and in the status it then
occupied, which has no functional relationship to the operation of a coal
mine is not "machinery or "equipment" within the meaning of the standard.
In view of the foregoing, I conclude that the condition or practice
cited in Citation Noo 823213 does not constitute a violation of mandatory
9/ Mandatory safety standard 30 CoF.R. § 77.405(b) remains in effect as a
mandatory safety standard under the 1977 Mine Act pursuant to the provisions
of sections 30l(b)(l) and 30l(c)(2) of the Federal Mine Safety and Health
Amendments Act of 1977, Pub. L. No. 95-164, 91 STAT. §§ 1290-1322.

safety standard 30 C.F.R. § 77.405(b). Consol's motion to dismiss the
charge of violation at the close of the Secretary's case-in-chief will be
granted.
VI.

Conclusions of Law

1. The Administrative Law Judge has jurisdiction over the subject matter
of, and the parties to, these proceedings.
2. Consolidation Coal Company and its Franklin Highwall Noo 65 Mine have
been subject to the provisions of the 1977 Mine Act at all times relevant to
these proceedings.
3. Federal mine inspector Jack A. Cologie was a duly authorized representative of the Secretary of Labor at all times relevant to these proceedings.
4. The condition or practice cited in Citation No. 823213 does not constitute a violation of mandatory safety standard 30 C.F.R. § 77.405(b).
5. All of the conclusions of law set forth in Part V,
reaffirmed and incorporated herein.
VII.

supr~,

are

Proposed Findings of Fact and Conclusions of Law

The parties filed the posthearing submissions identified in Part I~
supra. Such submissions, insofar as they can· be· cunside:red to have contained
proposed findings of fact and conclusions of law have been considered fully~
and except to the extent that such findings and conclusions have been expressly
or impliedly affirmed in this decision, they are rejected on the grounds that
they are, in whole or in part, contrary to the facts and law or because they
are immaterial to the decision in this case.
ORDER
Accordingly, IT IS ORDERED that Consol's motion to dismiss the charge of
violation at the close of the Secretary's case-in-chief be, and hereby is,
GRANTED.
IT IS FURTHER ORDERED that the notice of contest in Docket Noo LAKE
80-352-R be, and hereby is, GRANTED, and that Citation No. 823213 be, and
hereby is, VACATED.
IT IS FURTHER ORDERED that the proposal for a penalty in Docket No. LAKE
81-67 bep and hereby is, DISMISSED.

2915

Distribution:
Jerry F. Palmer, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department of
Labor, 881 Federal Office Building, 1240 East Ninth Street,
Cleveland, OH 44199 (Certified Mail)
Administrator for Metal and Nonmetal Mine Safety and Health, U.S.
Department of Labor
Administrator for Coal Mine Safety and Health, U.S. Department of
Labor
Standard Distribution

2916

~

~~D~RtlL MINE SAi=IC'fY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLl~E, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR,
MINE SAFETY AND.HEALTH
ADMINISTRATION (MSHA)~
on behalf of RICKY RAY
'FERRELL,
Complainant

.

CompQfi~t 3op J~!lrge,

Discrimination, or Interference

<

Docket No. VA 81-32-D

.

No. 11 Mine

v.
R & E COAL COMPANY,
Respondent.
DECISION
Appearances:

Covette Rooney, Attorney, Office of the Solicitor,
U.S. Department of Labor, for Complainant;
Ronald L. King, Esq., Coleman, Robertson, Cecil &
King, Grundy, Virginia, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued August 10, 1981, a hearing in the
above-entitled proceeding was held on. September 15, 1981, in Richlands,
Virginia, under section 105(c)(2) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 815(c)(2).
After the parties had completed their presentations of evidence, I
rendered the bench decision which is reproduced below (Tr. 346-364):
This proceeding involves a Complaint of Discharge, Discrimination
or Interference filed on January 19, 1931, in Docket No. VA 81-32-D, by
the Secretary of Labor on behalf of Ricky Ray Ferrell, pursuant to
section 105(c)(2) of the Federal Mine Safety and Health Act of 1977,
alleging that complainant was discharged by respondent, R & E Coal
Company, on September 4, 1980, in violation of section 105(c)(l) of the
Act, because Ferrell had made health and safety complaints to respondent
or respondent's agent regarding conditions in the mine.
I also consolidated for hearing in this proceeding the civil penalty
issue which would be raised if respondent should have been found to have
violated section 105(c)(l) of the Act, but my decision as to the merits
of the complaint renders moot the civil penalty issue.
At the conunencement of the hearing, counsel for complainant and
respondent entered into the following stipulations:
1.
The Administrative Law Judge has jurisdiction over the subject
matter of the hearing.

291~;

2.
R & E Coal Corporation is a Virginia corporation engaged in
the operation of a coal mine and is an operator within the meaning of
section 3(d) of the Act.
3.
Respondent's No. 11 Mine involved in this case p:roduces
products which enter commerce or affect commerce so that respondent
·is subject to the provisions of the Act.
4.
Respondent has no history of a previous violation of section
105(c)(l).
5.
The No. 11 Mine began operating in April 1980. Its annual
production in 1980 was 83,160 tons and its annual production in 1981
is estimated to be 81,428 tons. Respondent also operates another
coal mine besides the No. 11 Hine and the total annual production of
both mines for 1930, and estimated annual production for 1981, total
155,895 and 159,456 tons, respectively. Those production figures support a finding that respondent operates a small coal business.
6.
Complainant in this proceeding was paid $63.70 per day while
he worked for respondent.
7.
The parties stipulated as to the authenticity of exhibits
but not to their relevance.
My decision will be based on the following findings of fact. My
findings of fact are based on the composite credible testimony of all
witnesses. I shall indicate in my decision why I have used parts or
all of the testimony of some witnesses and have rejected parts or all
of the testimony of other witnesses.
1.
Complainant began working for respondent as a general inside
laborer toward the end of July 1980 and worked for respondent until
September 4, 1980, at which time he voluntarily left the mine between
10:00 and 11:00 a.m. after complaining about excessive dust.
2.
Some background information is needed for understanding what
happened on September 4 to cause complainant to leave the mine. Complainant's regular job was to remain at the tailpiece in order to clean
up any coal spillage at the feeder to the conveyor belt and to stop
the belt in case of a malfunction of the belt.
3.
On September 4, complainant went into the mine arid started
the day at the tailpiece, but Justus, the mine foreman, came to the
tailpiece shortly after the shift started and told complainant he would
have to assist Junior Sesco, the operator of the coal drill and cutting
machine, because Sesco's regular helper, Jarret Praeter, had been reassigned to be the shot fireman because an inspector had cited respondent
for failing to have a certified person present when bore holes were being
charged. Since Praeter was a certified shot firer, Praeter was put in
charge of shooting the coal with explosives and it was, therefore, necessary to assign complainant to the position of helping the operator of
the coal drill and cutting machine.

2918

4.
After complainant had assisted the operator of the drill in
making 10 holes in the working face of the No. 6 entry and 10 in the
adjacent crosscut, complainant told the operator of the coal drill and
cutting machine that he did not like holding the drill or working in
the dust which was generated by the drill. Therefore, when complainant
came out of the No. 6 entrys he told Justus, the foreman, that he needed
a respirator. Justus replied to complainant that respondent did not
have any respirators and that complainant would have to purchase a respirator, if complainant wanted to use one.

S.
Complainant returned to the drill and helped Sesco drill three
holes in the No. 7 entry, at which time complainant stopped helping Sesco
drill and again complained to Justus about the coal drill and the dust.
Complainant asked Justus if working on the drill was going to be complainant's regular job, and Justµs told complainant that helping on the drill
was the only job he had for complainant at that time.
Complainant stood in the crosscut outby the No. 7 entry while Justus
helped Sesco drill and cut the face of the No. 7 heading. Sesco said it
took 15 minutes for him to drill the three holes in the No. 7 heading
when complainant acted as his helper, and took only 10 minutes to drill
the remaining seven holes with Justus, the foreman,acting as his helper.
Sesco estimated that it took 3 additional minutes to undercut the
face of No. 7 heading and required 10 minutes for him, with the help of
Justus, to get his cutting machine over to the No. 4 entry because of his
having to get the trailing cable to the cutting machine past the roofbolting machine. Sesco stated that Justus then told Sesco that a problem
at the feeder required his attention, and Justus left Sesco at the No. 4
entry and went toward the feeder. Sesco said that complainant was still
in the crosscut outby No. 7 entry when he and Justus finished drilling
and cutting in the No. 7 entry, but Sesco stated that complainant did not
come over to the No. 1 entry where Sesco next went. Therefore, Sesco
drilled all 10 holes in that heading by himself.
Sesco learned that complainant had left the mine when Jarret Praeter,
the shot firer, came to the No. 1 entry and helped Sesco undercut the
No. 1 entry. Praeter had already shot the coal in the No. 7 entry before
coming to the No. 1 entry. Complainant told Praeter when he left the
mine on September 4, that he wouldn't drill coal for his daddy and that
he was leaving.
6.
When complainant left the mine on September 4, he told Bobby
Coleman, the operator of the roof-bolting machine, that he was quitting.
Coleman said Ferrell left before lunch, somewhere in the neighborhood
of 10:30 or 11:00 a.m.
Complainant also passed Ned Taylor, the operator of the scoop, when
he was leaving. Taylor said complainant held up his dinner bucket as a
sign that he was leaving the mine. Taylor stated that complainant left
before lunch time. Finally, when complainant left the mine on September 4,
he walked past one of the owners of the mine, Robert Lester. Lester
said that complainant did not tell him that complainant was leaving the

2919

mine, even though Lester was sitting on a barrel at the time within
20 or 30 feet of the portal. Lester .said that lre was not aware that
complainant was leaving until complainant got in the truck he drove
to the mine and left. Complainant agreed that he said nothing to
Lester about the fact that he was leaving or why he was leaving,
although Lester was outside the mine when complainant left. Complainant stated he said nothing to-Lester when he left because Lester had
once said that whatever Justus-~ the mine foreman, said about running
the mine was supported by Lester, as Justus had been put in charge of
operating the mine.
7.
Complainant stated that the mine foreman, Justus, placed tape
over the intake of some dust pumps when they were put on some miners by
an MSHA inspector. Complainant said he knew for certain Justus had put
tape on the pump at complainant's position at the tailpiece, because
complainant put the tape on his own pump when Justus told complainant
to do so.
Justus admitted that he had taped or had had tape put on complainant's
pump so as to reduce the particles going into the pump, and that he had
some other miners stay out of the dust on one day so that little dust would
enter the pump. Justus said he did that after the inspector told him that
some pumps were used for obtaining quartz samples instead of respirable
dust samples. The mine foreman had deliberately placed the pump in the
dirtiest place he could find at the tailpiece after misunderstanding
the inspector's instructions for obtaining quartz samples.
The inspector testified that he himself was unfamiliar with the
procedure for obtaining quartz samples, and that he went to the mine on
5 days, August 25, 26 and 27, and September 2 and 3, because five different
samples were required for a sampling of quartz. The inspector could not
say for certain how many samples were voided by heavy particles accidentally passing into the cyclone, as opposed to the number of samples which
were so light in weight as to have no validity for sampling purposes.
The inspector did say that his five repeated trips to the mine on the
aforesaid dates would have been necessary in any event to obtain the
number of samples needed for the testing of the quartz content of the
mine atmosphere.
8.
Complainant also testified that during the five weeks he worked
for respondent, he saw the miners haul explosives on the canopy of the
cutting machine, and that the caps or detonators were not separated from
the explosives at one time. Complainant said, however, that the mishandling of explosives did not contribute to his decision to leave the
mine on September 4.
9.
Complainant testified further that Justus did not keep curtains
up at the face or maintain the mine in good condition unless an MSHA
inspector happened to come to the mine. The inspector's presence at the
mine would be reported to the miners underground. At that time, the
miners would all stop whatever they were doing and erect curtains, apply
rock dust, and do whatever was necessary to make the mine pass inspection.
Justus, the mine foreman, agreed that he was given a signal or call
when an inspector was coming into the mine, and he said they did extra

2920

work to make the mine pass inspection. But Justus denied that he ever
had the miners deliberately take down curtains just to get them out of
the scoop operator's way.
10. The inspector, Franklin Perkins~ who took the quartz and
respirable dust samples on August 25, 26,and 27, and September 2 and 3,
went into the mine to check all pumps within 15 or 20 minutes after the
miners went underground. The inspector also checked all pumps on at
least one other occasion on each of the 5 days. The inspector wrote two
citations on August 25, 1980, at 9:00 and 9:30 a.m., which are Exhibit
Nos. 1 and 2 in this proceeding. The inspector wrote three citations at
about 8:30 or 9:00 a.m. on August 27, 1980, which are Exhibit Nos. 3,
4 and 5 in this proceeding. Exhibit No. 3 was an unwarrantable-failure
violation. The inspector thereafter wrote three unwarrantable-failure
orders on September 3, 1980, between 8:00 and 9:30 a.m. which are Exhibit
Nos. 6, ~ and 8 in this proceeding. Specifically, the inspector wrote
three roof-control violations which were Citation No. 938172, or Exhibit
No. 4, Citation No. 938173, or Exhibit No. 5, and Order No. 938176, or
Exhibit No. 8. The inspector cited three violations pertaining to
explosives which were Citation No. 938171, or Exhibit No. 3, Order No.
938174, or Exhibit No. 6, and Order No. 938175, or Exhibit No. 7. The
inspector wrote one citation pertaining to failure to maintain brattice
curtains in the Nos. 1 and 2 entries which was Citation No. 938170,
or Exhibit No. 2. Finally, the inspector wrote a citation regarding
a bare wire in a trailing cable which was Citation No. 938169, or Exhibit
No. 1.
Complainant's credibiility was impaired for the following reasons
which are not necessarily given in the order of greatest or least
importance:
1.
Sherman Adkins worked at R & E's No. 11 Mine while complainant
was working at the mine. Adkins was a relief man and ran any item of
equipment when an operator of such equipment was absent. He was complainant's brother-in-law and could be expected to support complainant's
testimony, especially since Adkins had left because of a back injury and
had brought suit against respondent when respondent failed to help him
get unemployment compensation. Adkins, however, failed to support complainant as to a number of complainant's allegations: (a) Whereas
complainant said that Justus, the mine foreman, had curtains taken down
deliberately to get them out of the scoop's way 1 Adkins said curtains
were along the rib in each entry and that Adkins never asked for curtains
to be put up; also Junior Sesco, the operator of the drill and cutting
machine, no longer works for respondent and had no reason to feel intimidated by telling the truth, said that curtains were in each entry and
could have been installed if complainant had wanted to put up curtains.
(b) Whereas complainant testified that he went out of the mine on
September 4, about 2:00 p.m. 1 and waited in Adkins' truck until Adkins
left the mine at the end of the shift, Adkins testified that he was sick
with a back injury and was not at the mine on September 4 and that complainant had driven Adkins' truck to the mine on September 4. (c) Whereas
complainant said he left the mine about 2:00 p.m. on September 4, all
other miners who saw complainant leave, including the scoop operator,

2921

bolting-machine operator, and part owner of the mine, testified that
complainant left well before noon on September 4 and the owner of the
mine said complainant got in his truck and left immediately without
waiting for anyone.
2.
Complainant testified that the MSHA inspector who placed the
pumps on the miners on August 25 and 26 stayed out of the mine all day
on August 25 and 26, whereas the. inspector testified he checked the pumps
at least twice by going underground to check the pumps and make an inspection of the working face. The citations and orders written by the inspector on August 25 and 27 and September 3, and described in Finding No. 10
above, show beyond any doubt that the inspector was underground checking
the pumps on all 5 days he was at the mine to collect samples.
3.
Although complainant stated that another miner stopped working
on the drill because of dust, complainant could not give the miner's
first or last name. The preponderance of the evidence shows that the man
whose place the complainant took on the drill was transferred to the
position of certified shot firer and that no one left the position of
helper to the operator of the drill because of dusty conditions.
4.
Complainant stated that the curtains were deliberately taken
down in all entries and piled up in the return entry three crosscuts
outby the working face. That testimony was disputed by Adkins, complainant 1 s brother-in-law, and by Junior Sesco,both of whom testified
that the curtains were lying along the rib in the headings if the miners
wanted to use them. Also, since the tailpiece was situatiod only two
crosscuts from the working face, there would have been no need or reason
to carry the curtains three breaks or crosscuts outby the face.
5.
Complainant testified that he helped drill 10 holes in the No. 5
heading and 10 in the crosscut at No. 5. He said it took 2 minutes per
hole, so that would be 40 minutes plus time required for undercutting.
Complainant also said he drilled 10 holes in the No. 6 heading which
would have taken 20 minutes plus time for undercutting and that he
helped drill seven holes in the No. 7 heading which would have required
14 minutes. Therefore, drilling time amounted to 40 minutes plus 20
minutes plus 14 minutes, or 1 hour and 14 minutes plus time for undercutting. Sesco stated that only 3 minutes were required to undercut
the No. 7 heading, so even if one adds 30 minutes for undercutting in
No. 5 heading and the crosscut and in Nos. 6 and 7 headings, complainant
would have worked on the drill for 1 hour and 45 minutes, whereas complainant testified that he worked on the drill for 3-1/2 or 4 hours
on September 4.
6.
Complainant testified he drilled in the No. 5 heading and the
break at No. 5 and then in the No. 6 heading and seven holes in the No. 7
heading, whereas both Praeter and Sesco stated that they had already
drilled in the No. 5 heading and the break at No. 5 before complainant
started helping. Sesco's recollection of having to get assistance from
Justus to finish drilling in the No. 7 entry and his taking the cutting
machine to the No. 4 entry with the help of Justus and about Justus

2922

having to go to the feeder shows that Sesco's recollection was vivid
and contained sufficient details to support my conclusion that Sesco's
version of the drilling sequence is more credible than complainant's
recollection of the facts.
7.
Complainant testified that Justus, the mine foreman, told him
on September 4, after he had complained about dust for the second time,
that he would have to drill coal or else, whereas Sesco, the operator
of the coal drill, testified that Justus told complainant that he would
have to drill coal on September 4 because that was the job which had
to be done on that day in view of the fact that Praeter had been transferred from the position of helping to drill coal to the position of
shot firer. I believe that Sesco's version is more credible than complainant's version because in his complaint filed with MSHA, complainant
stated that he asked Justus if the position of helper on the coal drill
was going to be complainant's regular job. A reply to that question by
Justus to the effect that the helper to the operator of the coal drill
was the only job he had for complainant that day is a more likely reply
to the question which the complainant says he asked than the complainant's
allegation that Justus told complainant he would have to drill coal or
else.
In Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980), the Commission held that a miner has a right under the Act to refuse to work
in a hazardous condition. ];./ The Commission stated that the miner has
established a prima-facie case if he shows that he was engaged in a
protected activity and that the act of discharge or discrimination was
motivated in any part by the protected activity. The Commission said
,that it is respondent's burden to show, if the miner makes out a primafacie case, by a preponderance of evidence that the adverse action would
have been taken in any event for the unprotected activity alone. In
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (1981), the Commission
extended its holding in Pasula as to the miner's right to refuse to work
in hazardous conditions by ruling that a miner may engage in affirmative
action to abate the hazardous condition which caused him to refuse to
work.
The evidence in this proceeding shows beyond any doubt, particularly
as set out in Finding Nos. 5 and 6 above, that complainant refused to
drill coal on September 4. Under the Pasula case, complainant was engaged
in a protected activity when he refused to continue drilling coal. One
of the witnesses called by the complainant in this proceeding was Junior
Sesco, the operator of the coal drill and cutting machine on September 4.
Sesco had to take his wife to the hospital on the day of the hearing in
this proceeding. Before Sesco had testified, I denied a motion by
respondent's counsel for dismissal of the complaint for failure to prove
a violation of section lOS(c)(l). After respondent had presented two of
its witnesses, respondent's case was interrupted so that complainant's
final witness, Sesco, could be presented. If Sesco's testimony had been
in the record when respondent's counsel made his motion to dismiss,
1/

Reversed on other grounds, No. 80-2600 (3d Cir. Oct. 30. 1981).

2923

I would have been very doubtful that complainant had proven a prima-f acie
case, or that the alleged discrimination involved in this proceeding had
occurred, because Sesco's testimony was devastating to complainant's
contention that he was told he had to drill coal in dusty conditions
without being provided with curtains or any other type of relief.
Although Sesco's testimony supports complainant's allegation that
Justus told the complainant he would have to purchase his own respirator,
Sesco 1 s testimony rebuts complainant's contentions by showing that Justus
did not object to complainant's hanging a curtain and that Justus did not
tell complainant that he would have to drill coal in unmitigated dusty
conditions or else. Instead, Sesco testified that Justus only stated
that he could not offer the complainant an alternate job on September 4
in answer to the complainant's question as to whether his regular job in
the mine would continue to be as helper to the operator of the coal drill
and cutting machine.
The complainant, from the filing of his initial complaint with MSHA
to the conclusion of this hearing, had a very tenuous case at best because
his only hope of showing a violation of section lOS(c)(l) was to establish
that he was told that his complaint about dust would in no way be mitigated
and that he would either work in dust or else -- which for the purposes
of this case must be interpreted to mean that he would be discharged if
he either tried to engage in affirmative action by erecting a brattice
curtain or insisted that repondent provide him with a respirator.
I believe that Justus' testimony in this proceeding has a rather
low credibility rating because nearly all the witnesses testified that he
failed to make them put up curtains when they were working in a heading,
whereas Justus stated that he made the miners hang curtains when he saw
them working without curtains. The miners had no reason to say that they
weren't using curtains if, in fact, they were. Also one of the inspector's
citations (Exhibit No. 2) issued on August 25, 1980, was for failure of
respondent to use brattice curtains in all entries. Moreover, Sesco's
testimony and that of the part owner, Robert Lester, show that Justus
made no attempt to get a respirator by going outside for one until after
the complainant had already left the mine. Under Sesco's testimony,
Justus helped Sesco drill and undercut and move the cutting machine for
at least 23 minutes before Justus went to check the feeder. The complainant did not leave for at least 28 minutes after asking Justus for
the respirator. Thus, if Justus had actually told the complainant he
would go outside for a respirator, he could have gone out and been back
in the mine with a respirator before complainant left the mine. Therefore, the preponderance of the evidence supports the complainant's contention that Justus refused even to try obtaining a respirator for
complainant.
Nevertheless, Sesco's testimony established that Justus did not
threaten to discharge complainant for asking about the use of curtains,
assuming complainant really did press Justus for permission to use
curtains. Adkins had left respondent's mine after an injury and had
sued respondent for some compensation. Therefore, Adkins would have had
no reason to fail to support complainant's case, especially since Adkins

292~

was compla1nant's brother-in-law, but Adkins' testimony also shows that
the miners had no need to fear using curtains if they wished to do so
and that the curtains were left lying in the entries if they were knocked
down by the scoop.
For the foregoing reasons, I find that while complainant was engaged
in a protected activity when he asked for a respirator to work in a dusty
or unhealthful environment, he failed to prove that he would have been
discharged for asking for the respirator or for hanging a curtain to
alleviate the dust while he was helping to operate the coal drill.
The complainant does -not even allege that he was discharged; at most,
his case depended on his being able to prove that he had to drill coal
in an unmitigated dusty condition or be discharged. His evidence simply
does not rise to that height of proof which is necessary for him to
prove that respondent violated section 105(c)(l) when complainant left
the mine on September 4.
I find that the preponderance of the evidence shows that the complainant did not like to help operate the coal drill in the first instance. Part of complainant's dislike for the coal drill may well have
been Sesco's fault for using a dull bit longer than he should have
because Sesco stated that it took him and complainant 5 minutes to drill
each of the three holes which complainant helped Sesco drill in the No. 7
entry, or a total of 15 minutes, whereas after Justus started helping
Sesco in the No. 7 entry, Sesco and Justus drilled seven holes in 10
minutes or about 1-1/2 minutes per hole. Consequently, there were many
aspects of working on the coal drill which were not to complainant's
liking. When complainant left on September 4, he told Praeter that he
wouldn't drill coal for his daddy, but he failed to state to anyone on
September 4 that he was forced to leave or be fired for failure to drill
coal in a dusty environment. Therefore, the evidence simply does not
prove that complainant was discharged for making a health or safety
complaint.
WHEREFORE, it is ordered:
The Complaint of Discharge, Discrimination, or Interference filed
on January 19, 1981, in Docket No. VA 81-32-D is denied for failure to
prove that a violation of section 105(c)(l) occurred.

~e.~~
~

Richard C. Steffey
Administrative Law Judge
(Phone: 703-756-6225)

2925

Distribution:·
Covette Rooney, Attorney, Office of the Solicitor, U.S. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)
Ronald L. King, Esq., Attorney for R & E Coal Company, Coleman, Robertson,
Cecil & King, P.O. Box 1560 9 Grundy, VA 24614 (Certified Mail)
MSHA, Special Investigation, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203
Assistant Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203

2926

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

Civil Penalty Proceeding

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

Docket No. VA 81-51-M
A.O. No. 44-03995-05007F

Petitioner

v.
Culpepper Plant
A. H. SMITH STONE,
Respondent
DECISION
Appearances:

David T. Bush, Attorney, Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for the petitioner;
Wheeler Green, Safety Director, A. H. Smith Stone,
Branchville, Maryland, for the respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil penalty
filed by the petitioner against the respondent pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), charging
the respondent with one alleged violation pursuant to the Act and the implementing mandatory safety and health standards. Respondent filed a timely
answer in the proceeding and a hearing was held on November 5, 1981, in
Falls Church, Virginia, and the parties appeared and participated therein.
The parties waived the filing of posthearing proposed findings and conclusions 9 but were afforded the opportunity to make arguments on the record and
those have been considered by me in the course of this decision.
Issues
The principal issues presented in this proceeding are (1) whether respondent has violated the provisions of the Act and implementing regulations as
alleged in the proposal for assessment of civil penalty filed in this proceeding, and, if so, (2) the appropriate civil penalty that should be assessed
against the respondent for the alleged violation based upon the criteria set
forth in section llO(i) of the Act. Additional issues raised by the parties
are identified and disposed of in the course of this decision.

2927

In determining the amount of a civil penalty assessment, section llO(i)
of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty
to the size of the business of the operator, (3) whether the operator was
negligent, (4) the effect on the operator's ability to continue in business,
(5) the gravity of the violation, and (6) the demonstrated good faith of the
operator in attempting to achieve rapid compliance after notification of the
violation.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Realth Act of 1977, Pub. L. 95-164,
30 U.S. C. § 801 et seq.
2.

Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i).

3.

Commission Rules, 29 C.F.R. § 2700.1 et seq.

4. 30 C.F.R. § 56.4-35 provides as follows: "Mandatory. Before any
heat is applied to pipelines or containers which have contained flammable
or combustible substances, they shall be drained, ventilated, thoroughly
cleaned of residual substances and filled with either an inert gas or,
where compatible, filled with water."
Stipulations
The parties stipulated to the following:
l•

A. H. Smith Stone owns and operates the Culpeper Plant.

2. A. H. Smith Stone and the Culpeper Plant are subject to the Mine
Safety and Health Act of 1977.
3.

The Administrative Law Judge has jurisdiction over this proceeding.

4. Citation No. 309243 was properly served upon A. H. Smith Stone by
Carl Liddeke and may be admitted into evidence to show its issuance and not
for the relevancy or truthfulness of the statements contained therein.
5. The size of A.H. Smith Stone is as follows: 167,966 annual production tonnage; 17,462 annual production tonnage for the Culpeper Pla~t.
6. Prior to the issuance of the subject citation, the operator had a
history of eight assessed violations.
Discussion
Citation No. 309243, November 26, 1980, alleged the following:
An employee was critically injured on November 24, 1980,
at about 1:53 p.m. by an explosion and resulting fire when he

2928

attempted to cut a fifty-five gallon oil drum with a Victor
C-1400 cutting torch. The oil drum had contained Exxon
XD3-30 engine lubricating oil, but was considered empty. The
fill plugs had not been purged of fumes or filled with an
inert gas or water.
Action to terminate: "All employees were instructed in the proper procedures to use when cutting or welding containers that have had flammable
liquids."
Testimony and Evidence adduced by Petitioner
MSHA inspector Carl W. Liddeke testified that he issued the citation in
question after he conducted an investigation on November 2S, 1980, the day
after the accident. He spoke with employee Henry K. Nicholson and
Superintendent Lonnie Fields about the accident. He observed a SS-gallon oil
drum that had the bottom blown out of it. It appeared that the drum had
exploded when a cutting torch had been applied to it. Mr. Liddeke stated
that Mr. Fields had told him that he was unaware of any permission given to
an employee to cut the drum. Since Mr. Fields also stated that he had no
knowledge that the injured employee, actaully cut the drum, he determined
that there was no negligence. Mr. Liddeke then testified that his opinion
had changed regarding the operator's degree of negligence, since subsequent
to his investigation, he received conflicting statements from the victim's
wife (Rachael Morton) regarding kr.owledge on the part of the operator.
Mr. Fields had told him that employees frequently took barrels for their own
use, and Mr. Lirldeke stated that the barrels are normally emptied and stored
without being purged (Tr. 17-30).
On cross-examination, Mr. Liddeke stated that the respondent was
negligent because the accide,nt happened on company property during working
hours. He also testified that he knew from the conversations he had with the
employees that the company had cut oil drums, but he did not know whether
any instructions for cutting the barrels had been given to the employees (Tr.
30-31, S3-S4).
In response to bench questioning, Mr. Liddeke stated that the employees
could have the barrels by merely asking for them. Mrs. Morton had learned
from Mr. Fields that her husband had asked for the barrel which later
exploded. He testified that normally the barrels are not purged of liquid
before they are stored, and he confirmed that the only barrel he examined
and tested was the one Mr. Morton had tried to cut. He determined that an
explodable liquid was present since the barrel ignited when a torch was
applied to it. He felt that if the barrel had been purged of the flammable
liquid, it would not have exploded. Furthermore, part of the barrel had been
sent to a state laboratory which showed that a petroleum distillate-type
material was present (Exh. ALJ-1; Tr. 31-37).
Mr. Liddeke testified that Mr. Morton intended to use the barrel as an
oil-drain pan for his personal tractor, and that Mr. Fields told him that

2929

sometimes barrels were used to transport diesel fuel to vehicles. Also, they
often were cut and used as garbage cans, but Mr. Liddeke could not recall
seeing these barrels used in these ways (Tr. 38-49).
Henry K. Nicholson, who was a loader operator at A. H. Smith Stone at
the time of the accident, testified that he is presently employed as a
correction officer by the State of Virginia. He had been an employee of
A. H. Smith Stone for 3 years and on the day of the accident he was using a
welder and a torch to construct a rack on which to store tools.
Mr. Nicholson testified that Mr. Morton came to him in his work trailer to
ask whether he could use a torch later on that day to cut a barrel so that
he could drain oil at his house. Mr. Nicholson stated that Mr. Fields would
let employees have these barrels if they asked for them. Mr. Morton had
always asked permission to take the barrels and Mr. Nicholson remembered
seeing him use a torch on them in the past. After obtaining permission,
Mr. Morton returned to the trailer and took the torch. Mr. Nicholson
stated that the next thing he heard was an explosion and then he saw
Mr. Morton on fire. Looking at the barrel afterwards, he could tell that
a torch had been applied to it (Tr. 54-58, 59-60).
~

On cross-examination, Hr. Nicholson testified that Mr. Fields had
instructed the employees as to how barrels should be cut. Plugs were to be
taken out and the barrels allowed to ventilate, after which they should be
filled with
water and rinsed out. After this procedure was completed,
if the barrels were to be used as trash cans, they could be torched.
Mr. Nicholson stated that the barrel which exploded still had a plug in it,
so no air could get in. He also indicated that the normal storage area for
barrels was behind the trailer. The antifreeze barrels were returnable but
he was not sure whether the Exxon barrels were returnable. Sometimes empty
oil drums were refilled to transport fuel. The barrel that exploded had
contained Exxon motor oil for the loaders and dozers (Tr. 58-59, 60-63).
Mrs. Rachel Morton, wife of the accident victim, testified that her
husband had taken company barrels before and used a torch on them. She
stated that she spoke with Mr. Fields in the hospital on Thanksgiving Day
and he had told her that her husband had asked specifically for the barrel
and that Mr. Fields told him that he could use a torch on it as long as it
would not interfere with Henry Nicholson's job. Mrs. Morton stated further
that during her hospital visit she repeatedly asked her husband whether he
had asked permission to take a barrel and cut it with a torch. Although he
could not speak at the time, he nodded affirmatively. Her husband also
indicated that he had checked to see whether anything was in the barrel
(Tr. 63-67).
On cross-examination, Mrs. Morton testified that Mr. Morton brought the
barrels home for various uses. She knew that he always asked Mr. Fields for
them,and had observed Mr. Morton cut these barrels at home (Tr. 67-69).
Ms. Sarah C. Honenberger testified that she was retained by Mrs. Morton
to determine whether she was entitled to any insurance or workmen's compensation benefits as a result of Mr. Morton's death after the accident in

2930

question. She stated that Mrs. Morton has received all available benefits
and has no present claims against the company. She testified that she had
spoken with Mr. Fields regarding the circumstances surrounding the accident
in order to know how the company would report it to the state industrial
commission. Mr. Fields stated that Mr. Morton had asked for a barrel to
take home as this was his usual practice. After the accident, Mr. Nicholson
advised him that Mr. Morton had borrowed his welding torch (Tr. 70-73).
On cross-examination, Ms. Hanenberger testified that she did not recall
Mr. Fields stating that he specifically told Mr. Morton to use a cutting
torch on the barrel. The only purpose of her conversation with Mr. Fields
was to determine whether Mr. Morton's activities were work-related (Tr. 73-

74).
Testimony and Evidence Adduced by Respondent
Lonnie Fields, superintendent at A. H. Smith Stone at the time of the
accident, testified that Mr. Morton had asked permission to take the barrel
in qeustion, and he assumed Mr. Morton would take it home. Mr. Morton did
not ask to use the torch although he had used it before. Mr. Fields stated
that he had no knowledge that Mr. Morton was going to use the torch, but he
had instructed him in the past on torching barrels, telling him to remove
the plugs and to check whether anything remained inside. This was part of
A. H. Smith Stone's regular safety program in which all regulations were
discussed. Mr. Fields indicated that the employees knew that Exxon takes
back empty drums (Tr. 75-82).
On cross-examination, Mr. Fields stated that there was no doubt
Mr. Morton had used a torch on the barrel on the day in question as he had
used a torch on them in the past. On this particular day, however,
Mr. Fields assumed that he was taking the barrel home with him for his own
use. Mr. Fields gave him no instructions to cut it for some specific
purpose, and he admitted that he would probably have given Mr. Morton
permission to cut the barrel on company time since Mr. Morton had always
taken proper safeguards and purged the barrels. Mr. Fields indicated that
all the barrels were stored outside in a trailer. He stated that the empty
drums still had the plugs in because they were returnable and the company
wanted the used ones (Tr. 83-90).
Findings and Conclusions
Fact of Violation
Upon examining the evidence of record and considering the testimony
elicited at the hearing, I have made the following factual conclusions
regarding the events leading t~ the accident of November 24, 1980. Mr. Morton
asked Mr. Fields for one of the empty Exxon oil barrels which were stored
behind the trailer waiting to be picked up by the oil company. It was
Mr. Fields' practice to allow the barrels to be taken by the employees if
they asked permission for them. On this particular day, Mr. Fields assumed

2931

that Mr. Morton would take the barrel home for his personal use. After asking for the barrel, Mr. Morton then obtained a torch from Mr. Nicholson.
Mr. Nicholson had seen Mr. Morton use a torch on the barrels before.
Mr. Morton then took the torch outside, applied it to the barrel, and caused
an explosion which resulted in fatal injuries. The explosion was the result
of a flammable liquid which was in the barrel, and the investigation aft~r
the accident indicated that the plug in the barrel had not been removed and
the barrel had not been ventilated or rinsed out.
The em~loyees at A. H. Smith Stone were sometimes ordered to cut the
barrels with a torch to make trash cans for the company's property. The
employees had been instructed in the proper procedure for purging the
barrels. They were supposed to take the plug out of the barrel and allow
it to ventilate. After it was rinsed out with water, it could be torched.
There is no question that a violation of 30 C.F.R. § 56.4-35 took place.
The evidence indicates that Mr. Morton applied a torch to a container which
had contained combustible or flammable oil without draining, ventilating, and
cleaning the barrel. After the explosion 9 the barrel was examined revealing
that the plug was still intact. An examination of the plug revealed a
residue of the fuel oil which had been in the barrel (Exh. ALJ-1). All the
parties agree that the barrel would not have exploded if it had been properly
cleaned and drained. Accordingly, there was a violation of the cited mandatory safety standard and the citation is AFFIRMED.
Gravity
The presence of empty oil drums which contained residue of the oil,
together with a practice of using cut-off drums as garbage cans, presented a
hazardous situation since torches were used on the drumso As indicated here,
the danger is extremely serious, since an explosion is likely to result when
a torch is applied to an unclean barrelo Here, Mr. Morton suffered serious
burns which eventually led to his deatho Accordingly, I find this violation
to be very serious.
Negligence
The inspector originally made a finding of no negligence because the
oil drum was cut without the operator's knowledge. At the hearing, MSHA
counsel stated that based on newly uncovered evidence, it was revealed that
the operator was negligent and this negligence resulted in the accident and
death of Mr. Mortono
The facts in this case indicate that the barrels were stored in an
accessible location near the trailer on the propertyo Although these empty
barrels were returnable and sometimes picked up by the oil company, it was
not an unusual practice for the barrels to be taken by the employees or used
on the property. Management was liberal in granting permission to take these
empty barrels. Management had also in the past instructed employees to cut
the barrels into trash cans by using a torch. The employees had been told to

2932

take the plugs out of the barrels and to ventilate them before cutting them.
Therefore, it was not unforeseeable that an employee who asked permission for
a barrel might use a torch on it. In fact, Mr. Fields stated that he probably
would have given permission to Mr. Morton to cut the drum on company time
(Tr. 87). It is fair to assume then that the operator knew or should have
known that there was a likelihood that Mr. Morton would use a torch on the
~

oil drum in question.

Respondent has raised the argument that since Mr. Morton was negligent
in not removing the plugs from the oil drum prior to applying the torch, the
operator should not have been found negligent. This is based on the premise
that since the employees had been instructed in the proper and safe way to
purge a barrel before torching it, the operator had fulfilled ~ts
reponsibility.
I conclude that respondent knew or should have known of the possibility
of an employee using a torch on a barrel before purging it. See Secretary of
Labor v. Heldenfels Brothers, Inc., 2 FMSHRC 851 (1980). I find that the
events of November 24, 1980, were highly foreseeable because employees often
took barrels, and using torches on them was not an uncommon practice. Knowing
this, respondent should have taken extra precautions to insure that all
barrels were purged. Since the consequences of an employee putting a torch
to a barrel containing oil residue could predictably result in an explosion
resulting in serious or fatal injuries to one or more people, the duty of the
operator is much greater. While Respondent did attempt to instruct the
employees as to the t)roper procedur.e for purgJng barrels~ management could
have been more diligent in its attempts to insure that all barrels were
prop~rly ventilated and cleaned.
It could have ·required that ev-ery barrel be
ventilated and cleaned as soon as they were empty and before they were stored
behind the trailer. By not doing so~ the operator took the risk that someone
might torch a barrel before taking all the necessary steps to clean it.
Mr. Morton's conduct was "not aberrational or unforeseeable, but ordinary
human error that stemmed from a lack of safety consciousness." See
Secretary of Labor v. Warner Company, 2 FMSHRC 972, 973 (1980)0 Accordingly~
I conclude and find that the respondent was negligent for not foreseeing
Mr. Morton's conduct and taking action to prevent a possible accident.
This situation is not analogous to the facts of Secretary of Labor v.
Nacco Mining Company, 3 FMSHRC 848. There the Commission found the operator
not negligent for the acts of the foreman where the foreman proceeded alone
past the last row of permanent supports under loose, unsupported roof where
a large rock fell on him causing the injuries from which he later died. The
Commission ruled that "where an operator has taken reasonable steps to avoid
a particular class of accident and the erring supervisor unf oreseeably exposes
only himself to risk, it makes little enforcement sense to penalize the aper,,
ator for 'negligence."' 3 FMSHRC at 850. But here the employee's conduct
and subsequent accident were foreseeable and I have found that the operator
did not take all reasonable steps to insure that the barrels were properly
drained and cleaned. Therefore~ the operator was negligent.

2933

In considering the degree of negligence to be imposed for this violaion,
I have taken into account the fact that the operator had instructed the
employees in the proper cleaning procedures. While these efforts were inadequate to fulfill the operator's duty of care for avoiding an accident, I
cannot conclude that the record in this case supports a finding that the
operator was grossly negligent. I find that the operator did not exercise
reckless disregard of mandatory health and safety standards or recklessly or
deliberately fail to correct an unsafe condition or practice which was known
to exist.
Good Faith Compliance
On the facts of this case it is clear that abatement took place by means
of the post-accident instructions to all employees concerning the proper
procedures and safeguards when cutting or welding containers that have
contained flammable or combustible materials. Inspector Liddeke found that
the violation was abated within a reasonable time and the respondent complied
with the instructional requirements of the abatement. Thus, it is clear that
the respondent exhibited good faith in the abatement requirements imposed by
the inspector. However, some comment is in order with regard to the language
of section 56.4-35, and these follow below.
In my view, the inspector should have considered requiring the respondent
to purge all empty oil drums which remained in storage on respondent's prop·erty after the accident in question so as to preclude another unfortunate
accident. Hopefully, as a result of· this incident~ the respondent will insure
that steps are taken to purge all such oil drums so as to render them safe
while in storage or awaiting shipment to the supplier. Further, I suggest
that MSHA consider the possibility of amending the standard to specifically
require that all such flammable containers be purged and rendered safe. The
regulatory language "[B]efore any heat is applied" leaves much to the imagination and whim of any employee who may put a torch to an oil drum which may
or may not have been purged of flammable or combustible residue. By requiring this to be done as soon as the drum is empty and stored on company
property where it is readily available to anyone would eliminate any
uncertainty.
History of Prior Violations
The parties stipulated that prior to the issuance of the subject citation, the operator had a history of eight violations. This indicates that
respondent has a good record with respect to safety and I have considered
this in assessing a civil penaltyo
Size of Business and Effect of Penalty on the Respondent's Ability to Remain
in Business
The parties stipulated that A. Ho Smith Stone produces 167,966 annual
tons and 17,462 tons is produced at the Culpepper Plant. I find that this
is a small operation and that fact is reflected in the penalty assessed.
The penalty will not adversely affect its ability to remain in business.

2934

Penalty Assessment and Order
On the basis of the foregoing findings and conclusions, _and taking into
account the requirements of section llO(i) of the Act, I conclude and find
that a penalty assessment in the amount of $1,000 is reasonable and appro~
priate for the citation which I have affirmed, and the respondent IS ORD~RED
to pay the assessed penalty within thirty (30) days of the date of this
decision and order.

~~

Geo
A. Koutras
Administrative Law Judge
Distribution:

David Bush, Attorney, Office of the Solicitor, U.S. Department of Labor,
Room 14480-Gateway Building, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Wheeler Green, Safety Director, A. H. Smith, Stone Office, Branchville 9
MD 20740 (Certified Mail)

2935

~EDER.AL MIN~ SAFETV AND HEALTH R'EYIEW COMMtSSHlN
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCli, VIRGINIA 22041

DEC 3 o1981Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (HSI-IA) ,
Petitioner

Docket No. VA 81-61
Assessment Control
No. 44-01519-03025 V

v.

No. 3 Mine
HARMAN MINING COMPANY,
Respondent
DECISION
Appearances:

Covette Rooney, Attorney, Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Robert H. Richardson, Esq., Richardson, Kemper,
Hancock & Davis, Bluefield, West Virginia, for
Respondent.

Before;

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued August 10, 1981, a hearing in
the above-entitled proceeding was held on September 16, 1981, in Richlands,
Virginia, under section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 815(d).
After the parties had completed their presentations of evidence, I
rendered the bench decision which is reproduced below (Tr. 106-127):
This proceeding involves a petition for assessment of civil penalty
filed in Docket No. VA 81-61 on June 23, 1981, by the Secretary of Labor,
seeking to have a civil penalty assessed for a violation of 30 C.F.R.
§ 75.316 by Harman Mining Company.
The issues in civil penalty cases are whether a violation occurred
and, if so, what civil penalty should be assessed based on the six
criteria which are set forth in section llO(i) of the Federal Mine
Safety and Health Act of 1977.
In order to determine whether a violation has occurred, I must
first make some findings of fact, which will be set forth in enur.1erated paragraphs.
1.
On January 26, 1931, Inspector Larry Clevinger made an examination of the No. 3 Mine of Harman Mining Company, Incorporated. At
that time he wrote Citation No. 939522 under section 104(d)(l) of the
Act citing a violation of section 75.316, and stating that the ventilation system, methan~ and dust control plan was not being complied
with and that the line brattice was not being maintained from the
last open crosscut to within 10 feet of the face of the Nos. 1, 2, 3,
and 4 entries; and that the check curtains were not installed in the
Nos •. 1, 2, 3, and 4 entries.

2936

2.
The inspector introduced as Exhibit 4A a diagram which
showed the distances which various entries had been driven without
there having been erected line brattices. Those distances range
from 115 feet maximum to 80 feet minimum in the Nos. 2 and 1 entries,
respectively. There were also some crosscuts to the left of the
Nos. 4, 3, and 2 entries~ which'were .20, 45, and 30 .feet in depth,
respectively. The inspector introdueed as Exhibit 4B a diagram of
that same area and those same distances, on which he had drawn the
brattice curtairts which should have been erected, i f the ventilation
plan had been followed.
3.
The inspector stated specifically that the portion of the
ventilation plan which was not complied with was paragraph r2 on page
four of the plan, which is Exhibit 3 in this proceeding. The first
sentence in that paragraph states: "Properly installed and adequately
maintained line brattice or other approved devices shall be continuously used from the last open crosscut in each working place of the working section." The inspector stated that was the provision that he
specifically had in mind when he alleged the violation in Citation
No. 939522.
4.
The inspector defended his citing or issuing the citation
under section 104(d)(l) of the Act by pointing out that prior to the
time the Commission's decision was issued in MSHA v. Cement Division,
National Gypsum Company, 3 FMSHRC 822 (1981),~used criteria under
which he wrote unwarrantable failure orders and citations, based on a
decision issued by the former Board of Mine Operations Appeals after
the Board had been reversed by a circuit court. After reversal, the
Board held that the term, "significant and substantial," which has
to be found as to a given violation before a citation can be issued
under section 104(d), needs to involve no more than a remote or speculative possibility that an injury might occur. The inspector indicated
that a violation did not have to be very serious at all in order to be
considered a "significant and substantial" violation under the criteria
he was then following.
In the Commission's decision in the National Gypsum case that I
just cited, the Commission stated that it believed that the previous
criteria for finding a violation to be significant and substantial
had been so broadly defined that the words had lost their basic meaning.
The Commission stated on page 828 of its decision that " * * * [o]ur interpretation of the significant and substantial language as applying to violations where there exists a reasonable likelihood of an injury or illness
of a reasonably serious nature occurring, falls between these two extremes
-- mere existence of a violation, and existence of imminent danger, the
latter of which contains elements of both likelihood and gravity."
5.
The inspector in this case at first said that the holding of
the Commission in National Gypsum Company caused him to have some doubt
as to whether his citation would have been issued, if he had been following
the Commission's new criteria for establishing whether a violation is
significant and substantial, but after considerable reflection on the

2937

matter, he. concluded that he believed that failure to have the curtains
continuously maintained in the four entries was sufficient to be a
reasonable likelihood of injury or illness and that if it occurred, it
would have been of a reasonably serious nature. Consequently, he
reaffirmed his belief that his unwarrantable failure citation should
have been issued. He also explained that he had made the other findings
required, namely, that a violation: had occurred, that it was n:ot an
imminent danger, that it was significant and substantial, and finally
that an unwarrantable failure had occurred.
6.
The respondent in this proceeding has presented three witnesses who have testified that the reason that the company was having·
difficulty with keeping line curtains in the entries described in the
inspector's citation was that they had been mining in a coal seam with
heights of 9 to 10 fe~t, including a rock seam in the middle. They then
encountered a rock seam that was so thick they couldn't mine it with the
coal and did not want to cut it down. Consequently, they went under
the rock portion which had the effect of reducing the mine height from
a 9 or 10-foot height down to 50 or 54 inches. Also, in order to improve
the stability of the roof, the company narrowed the entries from about
20 feet to 14 to 18 feet. This particular block of coal was approximately 120 feet long, and it only took the company about 5 days to mine
completely through it, at which time they resumed mining at the normal
height and returned to the normal 20-foot width for entries.
7.
The witnesses for respondent stated that during the period
when their entries were narrow, the inspector had inspected the mine
and had issued his citation about 2 days after they had started into the
above-described low area with the narrow width in the entries and that
their equipment measured 10 feet 6 inches in width, and it was almost
impossible to keep a brattice curtain up at the same time the equipment
was operating in the entries. That accounted for the fact that the
curtains had not been hung on January 26 when they were cited by the
inspector.
8.
There were some stipulations entered into by the parties. It
was stipulated that the No. 3 Hine is owned and operated by Harman
Mining Company and that Harman Mining Company is subject to the Act;
that I have jurisdiction to hold this hearing and decide the case;
that the citation was duly issued by an authorized representative of
the Secretary; that the assessment of a civil penalty would not cause
respondent to discontinue in business; and that insofar as the size of
the company is concerned, the annual production for the total company
is 265,134 tons and for the No. 3 Mine, production is 103,716 tons
annually.
It was also stipulated that the company showed a good-faith effort
to achieve compliance after the citation was issued, and that the No. 3
Mine had 54 previous violations during the 24 months preceding the
issuance of the citation involved in this case. There was some additional
testimony by one of respondent's witnesses, Mr. Hurley, to the effect
that there were a large number of inspection days at the mine and that
if you took that into consideration, the company had a very low ratio of
violations to inspection days.

2938

9.
Mro Hurley also introduced as Exhibit. B a sheet printed by
MSHA's computer. That exhibit reflects that during January of 1981
the company was within compliance with the respirable dust standard
by having an average concentration of 1.3 milligrams per cubic meter
of air.
lOo
It was stated by Mr. OWens, one -of respondent's witnesses,
that he was in this mine on Thursday, January 22, 1981, when the company
first began to mine the narrow entries and go to the lower height than
was normal. This particular Exhibit B shows that on that day a respirable dust sample for the cutting machine operator's environment showed
a concentration of 1.4 milligrams per cubic meter.
The first issue to be considered is whether a violation occurred.
We don't have any real problem with making a finding as to whether the
violation occurred, because everybody concedes that the curtains weren't
up on January 26 when the inspector wrote this citation at 8:15 a.m.
Everybody concedes that the ventilation plan required them to be maintained continuously; therefore, I find that a violation of section 75.316
occurred. While in a normal civil penalty case, an issue or issues concerning the validity of the inspector's citation or order is not normally
a matter to be considered, I held in this case that it was permissible
for respondent to go into the matters of whether the citation had been
validly issued under Section 104(d)(l) because I interpreted the Commission's National Gypsum decision as indicating that a respondent may
raise matters concerning the validity of citations and orders in a civil
penalty proceeding under the 1977 Act.
It is true, as Ms. Rooney has pointed out in her argument, that the
Commission agreed with the former Board that when a civil penalty case
arising under the 1969 Act had been set for hearing and was in progress,
that it was not permissible for respondent to raise issues as to the
validity of the citation or order, because the only issues in a civil
penalty proceeding are whether a violation occurred and, if so, what
penalty should be assessed. The reason that the former Board held that
you could not go into the merits of the issuance of a citation or order
in a civil penalty case was that the 1969 Act very clearly provided for
review of citations, which were then called notices of violation, and
orders as a separate matter; whereas, in the 1977 Act, the provision for
review of the merits of a citation or order are not really very clearly
set forth in the Act because it appears that under the language in section
105(d) of the Act, a respondent might take the position as to civil penalty
issues that he would not seek review by means of a notice of contest and
would, instead, await the occurrence of a proceeding under the civil
penalty aspect of the Act, at which time he would raise issues both as
to the merits of the citation or order being considered in the civil
penalty case, as >Jell as the issue of whether a violation occurred and
what penalty should be assessed.
Consequently, I believe that the Connnission has opened the door to
allow an operator to raise issues as to the validity of a citation or
order in a civil penalty case. I believe that is the result of the
Commission's consideration in the National Gypsum Company of the criteria

2939

for making "significant and substantial" findings because that case
was not a notice of contest cases but arose as an ordinary civil
penalty case. ~_/
Now that I have so ruled it is neces.sary for me to consider
whether the inspector properly issued an unwarrantable failure citation
in this instance. We don't have any pr:oblern with t:he first .part of the
inspector's finding as to a 104(d)(l) citation because we have already
agreed that a violation occuFred. Nobody has felt that the violation
approached anything like an imminent danger, so we don't have any problem with finding that the violation_ did not constitute imminent danger.
We do have a problem when we go to the language of section 104(d)(l)
which provides that an inspector must also find " -l< -l< * that such violation is of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or
health hazard."
As I already pointed out in my findings above, the Commission held
in the National Gypsum case that the words "significantly and substantially" should be applied so as to determine whether there was a reasonable
likelihood of an injury or illness which would have been of a reasonably
serious nature.
The respondent in this case has argued very strenuously that the
mere fact that these brattice curtains were not up at the beginning of
the working shift on Monday, January 26,. cannot possibly be found to be
significant and substantial within the meaning of the Commission's test,
because, according to the inspector, there was only a roof-bolting machine
in the actual working section or in any of these entries where the brattice
curtains had not been erected, but there were other pieces of energized
equipment outby such entries. Respondent contends that since there was
almost no likelihood of any ignition occurring and since the mine generated only from .01 to .02 of 1 per cent of methane, even when analyzed
in a bottle sample, that the likelihood of any explosive quantity of
methane occurring was so remote that it would be a misuse of the Commission's test to say that leaving these brattice curtains down at a time
like that -- that is, when there was no activity in the entries and no
production going on -- would contribute to a mine safety or health hazard.
The Government, of course, has argued that even though at the moment
the inspector issued Citation No. 939522, there was only a minute quantity
of methane in the mine; that when you have a mine which has the possibility or the potential of liberating methane, that there is also the possibility that an explosive quantity of methane could accumulate in the
inadequately ventilated entries. Consequently, if any kind of spark
should have come from any of this equipment while these curtains were not
up, that an explosion could have occurred. Of course, if it should have
occurred, it could have had serious consequences.
1/
A further statement of the reasons for my belief that an operator may
obtain review of the validity of a citation, as opposed to an order, in a
civil penalty proceeding is set forth at the end of.my bench decision.

2940

As to that part of the argument, I think that I shall have to go
along with the Government's contentions. In R~liable Coal Corp. v.
Morton, 478 F.2d 257 (4th Cir. 1973), the court held that Congress has
done away with the gaseous and nongaseous distinction in coal mines.
That case shows that we must assume under both the '77 and '69 Acts that
all coal mines are to be considered gaseous.
Despite the court's holding in the Reliable case, we still look at
the actual amount of methane which exists in any given situation and if
we find that there is no presence of methane, or if a mine above the
water table is involved and has never liberated methane, we still in a
case citing a violation of a ventilation provision, we hold that that
is a less serious violation than one which occurs in a mine which does
liberate large quantities of methane. But be that as it may, the liberation of methane is unpredictable. Methane has been known to be found
and accidents have occurred in mines which have no prior history of
liberating methane. Consequently, I think I shall have to go along with
the Government and find that the possibility exists that a large accumulation of methane could occur, and the fact that an explosion can occur
in these situations, requires me to find that the inspector was correct
when he said that there was a reasonable likelihood of an injury from
the fact that these curtains were not up and that a reasonably serious
injury could have occurred as a result of that explosion, if it had
occurred.
Now, we have also an argument here by respondent's counsel in which
he says that the citation was not valid because the inspector failed to
make the final findings required by section 104(d), which is that there
was unwarrantable failure of the operator to comply with the standard
cited. As Ms. Rooney has pointed out and as the inspector said in reply
to one of my questions, it is a fact that when an operator is given a
citation or an order, there is a provision on the face of the citation
or order which states that the operator should see the reverse side of
the citation or order of withdrawal. If that is done, it will be found
that the reverse side explains the provisions of section 104(a), section
104(d)(l), section 104(f), and other provisions. That is why the two
words "see reverse" are placed on the front of the citation, so that an
operator will be notified, when section 104(d) is entered on the front of
the citation or order, if the operator looks on the back, he will find
what that section involves. In this case, the explanation on the back of
the citation indicates that an unwarrantable failure has been found to
exist in order for the citation to be issued under section 104(d)(l) of
the Act.
I wrote a decision in Pontiki Coal Corp., 2 FMSHRC 370 (1980), in
which the primary issue was whether the fact that the citation or order
stated on its face "see reverse" was sufficient notice to the operator
that the findings required for issuing an unwarrantable failure citation
had been made by the inspector. I held in that case that the fact that
unwarrantable failure was explained on the back of the form was sufficient
for the purpose of making the necessary findings. The Pontiki case was
not appealed to the Commission, so I find in this case, consistent with

2941

my holdings in that case, that the inspector did make the required findings as to unwarrantable failure and that his Citation No. 939522 should
be affirmed.
Now, as to the other contentions by the operator in this case, it
was stated that he didn't really have the opportunity to make suggestions
when the ventilation plan was renewed each 6 months and that he pretty
much is required to agree with whatever sort of new provisions MSHA
may put in his new plan when it is sent to him for his signature. I am
in sympathy with the operator on those things, both the roof control plan
and the ventilation plan, in that I think an operator does pretty much
find himself trying to get his views into the plan when they are pretty
much dictated to him by MSHA.
But in this instance, I think that the Act itself provides a pretty
specific indication that MSHA may amend these ventilation plans to provide
for the continuous maintenance of the line brattice, whether work is being
performed or not. Because of injuries and fatalities that have occurred
on account of methane accumulation, MSHA personnel feel they must become
increasingly strict in these plans. In doing -so, however, they are not
going beyond the original provisions of the safety standards because
section 303(c)(l) of the 1969 Act provided the language which is now
section 75.302 of the Regulations. That section provides that:
Properly installed and adequately maintained line brattice
or other approved devices shall be continuously used from the
last open crosscut of an entry or room of each working section
to provide adequate ventilation to the working faces for the miners
and to remove flannnable, explosive, and noxious gases, dust and
explosive fumes, unless the Secretary or his authorized representative permits an exception to this requirement, where such exception
will not pose a hazard to the miners.
So, I believe that MSHA was well within the original provisions of the
Act when it amended the plan as originally issued to require that those
line brattices be continuously maintained.
I believe that I have covered most of the arguments that have been
made by the parties and the only thing that remains to be done is to
consider the six criteria before assessing a penalty. The stipuJations
show that two of the criteria have already been stipulated to, namely,
that the size of respondent's business is small, and that the operator
did abate this citation of a violation within the time provided for by
the inspector. In fact, the inspector gave the operator until 9:30 to
abate the violation, and he wrote a termination by 9:15, which would
have been only one hour after he issued it. For the men to have put up
curtains in four entries in an hour's time, when you consider how much
distance was involved, indicates that respondent abated the violation
in a rapid manner and should have some consideration for the promptn~ss
of its action in so doing. It has also been stipulated as to another of
the criteria that payment of a penalty would not cause respondent to
discontinue in business.

2942

As to the history of previous violations, it was stated that there
have been eight previous violations of section 75.316 in the last 24
months. While Mr. Hurley indicated he felt I should consider some of the
matters about the number of inspection days involved, it, of course, is
not necessary for judges to follow the assessment formula in 30 C.F.-Rr
§ 100.3 when a case has gone to hearing and the judge is making findings
of facts on the record conta.inj_ng testimony and exhibits presented by the
partieso Since it has not been my prclctice to pay any attention to what
the Assessment Office may have done before a case comes to hearing before
me 9 I find that it is immaterial that .the Assessment Office may have made
some calculations as to the number of inspection days and that there may
be a certain number of violations in the last 24 months, because it has
been my consistent practice since starting this work in 1972 to make
assessments under the criterion of history of previous violations entirely
on whether previous violations of the section before me in a given case
have occurred.
Since eight previous violations occurred in a 24-month period,
I consider that to be more than I usually encounter in these cases. Consequently, I believe that whatever other penalty might be assessed in this
case, a penalty of $100 should be assessed under the criterion of history
of previous violations.
The only two criteria that remain to be considered are negligence
and gravity. The inspector's finding of a high degree of negligence
was based al.most entirely on his statement that the weekend entry in the
preshift book shows that these curtains had been left down from the
previous Friday by the evening crew, and it was his opinion that the
curtains should have been rehung during Saturday or Sunday. He felt the
failure to do so, especially after it was written up by one of the examiners of the mine, indicated a high degree of negligence. There is, of
course, nothing in the ventilation plan in Exhibit 3 which indicates
occurrences of changes in the mining height or the width of the entries
which have been mentioned in this proceeding and which have been noted
in my findings of fact, supra~ I recognize that the company had a problem
here in trying to use the curtains at an entry which was barely wide enough
for the equipment. I'm taking that into consideration as a mitigating
factor in assessing the penalty; but the fact that the operator failed to
install curtains on Saturday and Sunday cannot be ignored because that is
what the plan requires, and the Act too, for that matter. The curtain is
required to be maintained continuously and should, therefore, have been
erected whether or not any production was being performed. Consequently 9
I find that there was a relatively high degree of negligence.
Now, we come to the final criterion of gravity. I don't think that
we can say that this constituted more than a moderate amount of gravity
because it is a fact that no production was going on. At the time the
citation was actually written, it is a fact that methane was only .01 to
.02 of 1 per cent. An inspector checked all the entries with his methane
detector and could not even get a reading, so while there was a potential
there for a possible injury, the fact is that at the time the inspector
issued the citation there was, at most, a moderate seriousness in the
violation.

2943

In conclusion, I find that the company abated the violation in less
than the time given by the inspector, that it is a small company, that
the gravity of the violation was not great, and that there was a relatively high degree of negligence. In such circumstances, I find that a
penalty of $300 is appropriate, to which $100 will be added under the
criterion of history of previous violations, making a total penalty of
$400c
After I had rendered the bench decision set forth above, I learned that
the Commission had issued in Secretary of Labor (MSHA) v. Paramont Mining
Corporation, Docket No. VA 81-45, on September 21, 1981, an order denying a
petition for interlocutory review of an order issued on August 19, 1981, by
Administrative Law Judge George A. Koutras in that proceeding. Judge Koutras'
order had granted the Secretary's motion for partial summary decision as to
the question of whether respondent Paramont Mining Corporation could raise the
issue of the validity of an unwarrantable-failure order in a civil penalty
proceeding. Inasmuch as the Commission declined to grant Paramonth's petition
for interlocutory review, it may appear that I erred in considering the merits
of the unwarrantable-failure citation in this civil penalty proceeding. In
C.C.C.-Pompey Coal Co., Inc.,2 FMSHRC 1195 (1980), the Commission held that a
judge should not issue a bench decision in final written form without considering the holdings in Commission decisions which were issued between the time
the bench decision was rendered at the hearing and the time the bench decision
is issued in final form.
The primary basis for my ruling in this case that respondent could obtain
a review of the validity of the unwarrantable-failure citation in a civil
penalty proceeding was that the Commission had considered the meaning to be
assigned to the phrase "significant and substantial" in its decision in
Cement Divison, National Gypsum Co., 3 FMSHRC 822 (1981), even though the
proceeding in which the Commission considered that issue was a civil penalty
proceeding. Upon further examination of the Connnission's decision in the
National Gypsum case, I have noted that all of the alleged violations in that
proceeding involved citations on which the inspector had checked a "block"
showing that he considered all of the alleged violations to be "significant
and substantial" as that term is used in section 104(d) of the Act. The Commission considered the meaning of that phrase in order to clarify the interpretation which should be given to the words "significant and substantial" in
light of some decisions issued by the former Board of Hine Operations Appeals
after its decision in Zeigler Coal Co., 3 IBMA 448 (1974), was reversed in
UMWA v. Kleppe, 532 F.2d 1403 (D.C. Cir. 1976), because the Board had held
that findings as to "significant and substantial" had to be made before unwarrantable failure orders could be issued under section 104(c) of the Federal Coal
Mine Health and Safety Act of 1969. The Commission clarified the definition
which should be ascribed to "significant and substantial" in a civil penalty
case because the inspectors were routinely designating ordinary violations
alleged in citations written under section 104(a) of the 1977 Act as being
"significant and substantial". The Connnission believed that such routine
employment of the term "significant and substantial" might eventually be used
as a basis for finding an operator to have a "pattern of violations" pursuant
to the provisions of section 104(e) of the Act.

My conclusion in the bench decision, supra, to the effect that the Commission's consideration of "significant and substantial" in the National
Gypsum case indicated that the Commission has not prohibited consideration
of the validity of citations in civil penalty cases failed to comment on
the difference between the breadth of review which is permitted of citations
issued under the 1977 Act as opposed to the constraints of review which are
placed on orders issued under the 1977 Act. The change in the language as
to review of citations under the 1977 Act, as opposed to review of notices of
violation under the 1969 Act, '!:_/ was discussed by the Commission in Energy
Fuels Corp., 1 FMSHRC 299 (1979), in which the Commission stated (at p. 302):
***On the other hand, section 105(a), when read with section 105(d),
may be read to permit an operator to await the issuance of the notification of proposed assessment of penalty before deciding whether to
contest the entire citation, rather than require the operator to so wait.
[Emphasis in original.]
At page 309 of the Energy Fuels case, the Commission further stated:
* * * If the citation lacked special findings, and the operator otherwise lacked a need for an immediate hearing, we would expect him to
postpone his contest of the entire citation until a penalty is
proposed. ,·~ * '~
In Wolf Creek Collieries Co., Docket No. PIKE 78-70-P, issued March 26,
1979, the Commission agreed with the former Board's consistent holdings that,
under the 1969 Act, a respondent could not obtain review of the validity of
orders in civil penalty proceedings (Eastern Associated Coal Corp., 1 IBMA 233
(1972); Zeigler Coal Co., 1 IBMA 216 (1973); Plateau Mining Co., 2 IBMA 303
(1973); Buffalo Mining Co., 2 IBMA 327 (1973); North American Coal Corp.,
3 IBMA 93 (1974); Zeigler Coal Co., 3 IBMA 366 (1974); Jewel Ridge Coal Corp.,
3 IBMA 376 (1974); Peggs Run Coal Co., 5 IBMA 3 (1975); and Ashland Mining
Development Co., Inc., 5 IBMA 259 (1975)). The Commission made a similar
holding as to the 1969 Act in Pontiki Coal Corp., 1 FMSHRC 1476 (1979). In
Van Mulvehill Coal Co., Inc., 2 FMSHRC 283 (1980), the Commission held that
the validity of orders issued under the 1977 Act is not to be considered in
civil penalty proceedings.
My review of the Commission's holdings with respect to obtaining review
of the validity of citations in civil penalty proceedings, as opposed to obtaining review of the validity of orders in civil penalty cases, shows that
I correctly interpreted the Commission's consideration of the term "significant
and substantial" in the National Gypsum case, supra, to mean that an operator
may obtain review of the validity of citations in civil penalty proceedings,
but may not obtain review of the validity of orders in civil penalty proceedings. Inasmuch as the question of the validity of a citation was before
me in this proceeding, I reaffirm my finding that it is permissible for an

'!:_/
Under the 1969 Act, review of a notice of violation was restricted to the
question of whether the time set by the inspector for abatamant was unreasonable
(UMWA v. Andrus, 581 F.2d 888 (D.C. Cir. 1978)).

2945

operator to contest the validity of a citation in a civil penalty proceeding
even if the operator has failed ta seek review of that citation by filing
a notice of contest under section 105(d) of the Act within 30 days after the
citation was issued. Therefore, the fact that the Connnission declined to
grant an interlocutory review of Judge Koutras' decision in the Paramont
Mining ca.se in which he had held tha.t an opara:.tor may not obtain a review
of the validity of an order, as opposed £0 a citation, in a civil penalty
proceeding, is consistent with my holding in this proceeding that an operator
may obtain review of the validity of a citation, but not an order, in a civil
penalty proceeding. In short, I find that Lt was not error for me to grant
review of the validity of a citation in thi·s proceeding and that portion of
my decision which so held is confirmed.
WHEREFORE, it is ordered:
(A) Citation No. 939522 was correctly issued on January 26, 1931, under
section 104(d)(l) of the Act and the citation is affirmed.
(B) Within 30 days from the date of this decision, respondent shall pay
a civil penalty of $400.00 for the violation of section 75.316 alleged in
Citation No. 939522.

~ff;.rJ~
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
Covette Rooney, Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Robert M. Richardson, Esq., Attorney for Harman Mining Company,
Richardson, Kemper, Hancock & Davis, P.O. Box 411, Bluefield, WV
24701 (Certified Mail)

2946

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

DEC 311981
Civil Penalty Proceedings

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

Docket No. CENT 80-306-M
A/O No. 41-00038-05007

v.

KAISER CEMENT CORPORATION,
Respondent

Docket No. CENT 80-354-M
A/O No. 41-00038-05008-I
Longhorn Cement Plant

DECISION
Appearances:

Donald w. Hill, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
Secretary of Labor, Mine Safety and Health
Administration, Petitioner;
Robert E. Bettac, Esq., Foster & Associates, Inc.,
San Antonio, Texas, for Kaiser Cement Corporation,
Respondent.

Before:

Judge Stewart

These are proceedings filed by the Secretary of Labor, Mine Safety and
Health Administration (hereinafter MSHA), under section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a) (hereafter the Act),
t9 assess civil penalties against Kaiser Cement Corporation (hereafter Kaiser)
for violations of mandatory safety standards. 1-_/
1/

Sections llO(i) and (k) of the Act provide:
"(i) The Commission shall have authority to assess all civil penalties
provided in this Act. In assessing civil monetary penalties, the Commission
shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator's ability to
continue in business, the gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve rapid compliance after
notification of a violation. In proposing civil penalties under this Act,
the Secretary may rely upon a SlllllDlary review of the information available to
him and shall not be required to make findings of fact concerning the above
factors.
"(k) No proposed penalty which has been contested before the Commission
under section 105(a) shall be compromised, mitigated, or settled except with
the approval of the Commission. No penalty assessment which has become a
final order of the Commission shall be compromised, mitigated, or settled
except with the approval of the court."

2947

STIPULATIONS
On November 24, 1980, the parties filed stipulations of fact to constitute
the entire record in these proceedings. On May 18, 1981, the parties filed
supplementary stipulations including the following which pertain to the statutory criteria applicable to all citations:
Size of mining operation - medimn
History o-f previous violations - moderate
Neligence on the part of Kaiser - none
Effect of the proposed penalties on the ability of
Kaiser to continue in business - none
Kaiser demonstrated good faith in attempting to
achieve rapid compliance after notification of each
violation.
Docket No. CENT 80-306-M (Three Citations)
The stipulations applicable to Citation Nos. 172310, 172311, 170580, and
170681 were as follows:
1. Jurisdiction over this proceeding is conferred upon
the Federal Mine Safety and Health Review Commission under
the Federal Mine Safety and Health Act, 30 u.s.c. § 801,
et seq. The alleged violations of the Act took place in or
involve a mine that has products which enter commerce or has
operations or products which affect commerce.
2. All statements made by the Secretary's safety inspectors on the face of the Citation forms, as amended, are true.
All Citation Forms attached to the Complaint Proposing Penalty
are incorporated by reference-, as if fully set forth herein.
3. Each of the instant citations was issued during the
course of a special inspection as described at 30 C.F.R.
Part 43, which inspection was initiated by a miner or representative of miners upon written notice or complaint.
4. No copy of such written notice or complaint was provided to the Respondent by the Secretary's safety inspectors
on or before the date of said special inspection, notwithstanding that Respondent requested such written notice prior
to the beginning of said special inspection. The Secretary's
safety inspector did, however, describe the general contents
of said written complaint to an authorized representative of
the Respondent prior to beginning said special inspection.

2948

5. The violation alleged in each Citation was not due to
any negligence on the part of the Respondent, and the penalty
points attributable to the "Negligence" factor should be
"O". [ 2/] The preceding stipulation is based on the following, further stipulations applicable to each of the alleged
violations: (1) Respondent did not contribute by act or omission to the occurrence of the alleged violation; (2) the
Respondent did not contribute by act or omission to the continued existence of the alleged violation; (3) none of
Respondent's employees was exposed or likely to be exposed
to the unsafe conditions alleged; and (4) Respondent neither
knew or should have known of the allegedly unsafe conditions.
6. The unsafe practices alleged in each Citation were
committed only by employees of independent contractors perfonning construction work at the Respondent's mine. Each
such independent contractor exercised an independent employment and contracted to do the work according to its own
judgment and methods, and without being subject to the control of Respondent except as to the results of the work,
and each independent contractor had the right to employ
and direct the actions of their respective employees,
independently of Respondent and free from any superior
authority of Respondent to say how the work would be done
or what the laborers would do as it progressed.
7. Employees at Respondent's mine collectively worked
between three-hundred thousand and five-hundred thousand
hours annually, and penalty points for mine size, if any,
would be 7. Employees of the company which controls the
Respondent work between nine-hundred thousand and three
million hours annually, and the penalty points, if any,
based on the size of the controlling company would be 3.
The average number of violations assessed per year in the
24 months preceding the instant alleged violations was 10.5,
2/ The penalty points referred to in the stipulation are from Part 100 of
Title 30 Code of Federal Regulations which sets forth the criteria and procedures for the proposed assessment of civil penalties by the Assessment
office. The point system is not utilized in the assessment of penal tie.s
herein. 29 C.F.R. § 2700.29 provides as follows:
"(a) In assessing a penalty the Judge shall detennine the amount of
penalty in accordance with the six statutory criteria contained in section
llO(i) of the Act, 30 U.S.C. § 820(i), and incorporate such detennination in
a decision containing findings of fact, conclusions of law, and an order
requiring that the penalty be paid.
"(b) In determining the amount of penalty neither the Judge nor the
Commission shall be bound by a penalty recommended by the Secretary or by any
offer of settlement made by any party."

and the penalty points, if any, for history of violations
would be 1. The average nunber of violations assessed per
inspection day in the 24 months preceding the instant alleged
violations was .88, and the penalty points, if any, under the
"Inspection Day" factor would be 6.
Stipulations Applicable to Citation No. 170580 3/
8. The applicable mandatory safety standard, if any, is
contained at 30 C.F.R. 56.9-40(c) of the Secretary's Rules
and Regulations.
9. The unsafe practice alleged herein occurred on mobile
equiµnent owned by, and was committed by a person employed by,
Jud Plumbing, Heating and Air Conditioning, an independent
contractor.
10. As part of its construction contract with Jud,
Respondent required Jud to keep itself fully informed and to
comply with all state and federal laws affecting safety; to
be responsible for accident prevention and safety in performance of the work; to take all reasonable measures to
prevent injury to persons or property as a result of the
performance of the contract work; to comply with all applicable safety laws, including OSHA and MSHA; to make suitable
arrangements to supply first aid facilities to its employees;
to guard work performed on the construction site as necessary
with fences, barriers, lights, signs, etc.; to furnish all
necessary protective safety equiµnent to its employees; to
implement a safety program for its employees and to designate
a coordinator of safety, security, and fire control; and to
notify the Respondent of any hazardous conditions, property,
or equiµnent at the work site that are not under Jud's control.
11. The probability, under normal circumstances, that an
injury would result from a violation of the cited standard is
3/ Citation No. 170580 was issued on February 6, 1980, and described the
pertinent condition or practice as follows:
"An employee of Jud Plumbing, Heating, and Air Conditioning, a subcontractor working at the long horn cement plant, was observed riding on
the tongue of a gas welder (tag No.) 5568 that was hooked up to a state
bed truck (tag No.) CT 7555, that was traveling over a rough road where the
hazard of the employee falling off and being ran over by the welder causing
serious injury."
The inspector asserted that Respondent abated the violation as follows:
"The truck was shut down at once. The employee was made aware of the hazard."
The citation alleged a violation of 30 C.F.R. § 56.9-40(c) which provides that men shall not be transported on top of loaded haulage equiµnento

2950

"probable," and the penalty points, if any, to be assigned to
the "Probability of Occurrence" factor is 3. The gravity of
an injury resulting from violation of the cited standard may
normally be expected to involve lost work days or restricted
duty, and the penalty points, if any, to be assessed under
the "Gravity of Injury Expected" factor should be 3. None of
the Respondent's employees was exposed to the alleged hazard,
and the ntunber of penalty points to be assessed under the
"Number of Persons Affected" factor should be "O".
12. Respondent demonstrated its good faith by making
the Jud employees aware of the alleged hazard immediately.
Accordingly, the penalty points, if any, to be assessed to
Respondent under the "Demonstrated Good Faith" factor should
be -5.
Stipulations Applicable to Citation No. 172310 !!_/
13. The applicable mandatory safety standard, if any, is
contained at 30 C.F.R. § 56.16-7(a) of the Secretary's Rules
and Regulations.
14. The unsafe practice alleged in this Citation involved
the use of a crane owned by Phillips Crane Company, subcontractor to Aaction Building Systems, which in turn was subcontrac··
tor to Watson Building Systems, the general construction
4/ Citation No. 172310 was issued on February 6, 1980, and described the
pertinent condition or practice as follows:
"I observed purlines supports being hoisted into place and no taglines
to prevent the purline supports from swinging around in air, creating a
hazard of knocking the connector men from the trusses on which they were
setting to concrete floor 45 feet to 59 feet below."
On February 7, 1980, the citation was modified as noted on a subsequent
action form as follows:
"This is to modify Citation No. 172310 condition or practice section
to read as follows: I observed purline support being hoisted into place by
employee of Watson Building Systems, sub-contractor of Aaction Building
Systems, Inc, with no taglines attached to prevent the purline supports from
swinging around in air, creating a hazard of knocking the connector men from
the trusses on which they were setting, and falling to concrete floor approximately 50 feet below."
In terminating the citation on February 6, 1980, the inspector noted:
"All employees were instructed, and signatures were required that taglines
would be used on all material being hoisted."
The citation alleged a violation of 30 C.F.R. § 56.16-7(a) which provides
that: "Taglines shall be attached to loads that may require steadying or
guidance while suspended."

2951

contractor on the site. The alleged unsafe practice was committed by employees of one or more of the aforementioned subcontractors or general contractor.
15. As part of its construction contract with Watson
Building Systems, Respondent required Watson to keep itself
fully informed and to comply with all state and federal laws
affecting safety; to be responsible for accident prevention
and safety in performance of the work; to take all reasonable
measures to -prevent injury to persons or property as a result
of the performance of the contract work; to comply with all
applicable safety laws, including OSHA and MSHA, to make
suitable arrangements to supply first aid facilities to its
employees; to guard work performed on the construction site
as necessary with fences, barriers, lights, signs, etc.; to
furnish all necessary protective safety equipment to its
employees; to implement a safety program for its employees
and to designate a coordinator of safety, security, and fire
control; and to notify the Respondent of any hazardous conditions, property, or equipment at the work site that were
not under Watson's control. At the time of the alleged
violation, Watson had assigned a Safety Director to the
construction site.
16. The probability that an injury would result from a
violation of the cited standard is "improbable," for there is
no evidence that the affected employees were not wearing appropriate safety belts and tag lines; the penalty points, if any,
to be assigned to the "Probability of Occurrence: factor is
"O". For the same reason, the gravity of an injury resulting
from violation of the cited standard may normally be expected
to involve no lost work days, and the penalty points, if any,
to be assessed under the "Gravity of Injury Expected" factor
should be "O". None of Respondent's employees was. exposed to
the alleged hazard, and the nunber of penalty points to be
assessed under the "Number of Persons Affected" factor should
be 11 0 11 •

17. Respondent demonstrated its good faith by persuading
the general contractor and the two subcontractors to meet with
their respective employees immediately, instruct the employees
in the "tag lines" requirement, and obtain the signatures of
affected employees on a written statement of the rule.
Accordingly, the penalty points, if any, to be assessed to
Respondent under the "Demonstrated Good Faith" factor should
be -5.

Stipulations Applicable to Citation No. 172311 'J_/
18. The applicable mandatory safety standard, if any, is
contained at 30 C.F.R. § 56.16-11.
19. The unsafe practice alleged involved a crane owned
and operated by Phillips Crane Company, a third-tier contractor. The alleged unsafe practice was committed by employees
of Watson Building Systems and/or Aaction Building Systems
and/or Phillips Crane Company.
20. Stipulation No. 15 above applies equally to this
citation.
21. The probability, under normal circumstances, that an
injury would result from a violation of the cited standard is
"probable," and the penalty points, if any, to be assigned to
the "Probability of Occurrence" factor is 3. The gravity of
an injury resulting from violation of the cited standard may
normally be expected to involve lost work days or restricted
duty, and the penalty points, if any, to be assessed under the
"Gravity of Injury Expected" factor should be 3. None of
Respondent's employees was exposed to the alleged hazard, and
the number of penalty points to be assessed under the "Number
of Persons Affected" factor should be "O".
5/ Citation No. 172311 was issued on February 6, 1980, and described the
pertinent condition or practice to be as follows:
"Pat Patton, operator of a Grove M:>del TMS-160 18-ton crane~ for Phillip
Crane Co, working for Watson Building Systems, Sub-contractor of Aaction
Building Systems, Inc., stated on February 5, 1980, he did hoist men on the
hoisting hook. Man cage was available at the cite for safe means of hoisting
men."
This citation was modified on February 22, 1980, as follows:
"This is to modify the original Citation No. 172311 condition or practice
section to read as follows: Pat Patton operator of a Grove Model TMS-160
18-ton crane for Phillip Crane Co., working for Watson Building Systems Subcontractor of Aaction Building Systems Inc, stated on February 5, 1980, he
did hoist men on the hoisting hook. Man cage was available at the cite [sic]
for safe means of hoisting men. The hazard of the men slipping off the hook
and falling to concrete floor and resulting in serious injurieso"
In terminating the citation on February 6, 1980, the inspector noted:
''Employees were instructed and * * * understood not to hoist men on the
hoisting hook; employee signatures were required (to show) that they understood the rules."
The citation alleged a violation of 30 C.F.R. § 56.16-11 which provides
as follows: "Mandatory. Men shall not ride on loads being moved by cranes
or derricks, nor shall they ride the hoisting hooks unless such method
eliminates a greater hazard."

2953

22. Respondent demonstrated its good faith by persuading
the general contractor and the two subcontractors to meet
with their respective employees immediately, instruct them of
the "man cage" requirement, and obtain their signatures to a
written rule to this effect. .Accordingly, the penalty points,
if any, to be assessed to Respondent under the "Demonstrated
Good Faith" factor should be -5.
SUPPLEMENTARY STIPULATIONS
Statutory Criteria Applicable to Citation No. 170580
Gravity of violation - low
Statutory Criteria Applicable to Citation No. 172310
Gravity of violation - low
Statutory Criteria Applicable to Citation No. 172311
Gravity of violation - moderate (It is understood, however, that Respondent does not hereby stipulate that the
violation has been proved.)
Dismissal of Citation No. 172311
The motion for decision on the record was disapproved because of the
statement that Respondent did not stipulate that Citation No. 172311 had
been proved. On July 20, 1981, the parties filed the following additional
stipulation by Western Union Mailgram:
Pursuant to an agreement by telephone 7-17-81 the parties
do hereby propose to withdraw a stipulation and to offer an
additional stipulation concerning Citation Number 172311 as
follows:
The parties hereby move to withdraw the second sentence
of stipulation Ntmber 19 contained at Page 7 of the stipulated record submitted by the parties on 11-24-80 which read
as follows: "The alleged unsafe practice was committed by
employees of Watson Building Systems and/or Aaction Building
Systems and/or Phillips Crane Company."
The parties hereby offer the following additional stipulation: On February 6, 1980 Pat Patton opepator [sic] of a
Grove :t-bdel TMS-160 18 ton crane for Phillips Crane Company,
subcontractor to Watson Building Systems, subcontractor to
Aaction Building Systems, stated to the Secretary's inspector that he hoisted men on the hoisting hook on February 5,
1980. Alan Redeker the Respondent's plant manager was

2954

present when the statement was made. There is no evidence
that any of Respondent's employees engaged in or was exposed
to the practice described by Mr. Patton.
The foregoing stipulation is made with the understanding
that the Respondent preserves its objection to the nonadmissibility of such statement into evidence.
The Secretary of Labor hereby rests his case as to all
citations herein and the parties ask the honorable judge to
enter a decision without the need for further proceedings.
The stipulation that the alleged unsafe practice was committed by employees of three named independent contractors has been withdrawn by the parties.
The stipulations as amended are inadequate to prove a violation by either an
independent contractor or by Respondent. Citation No. 172311 is accordingly
dismissed.
Docket No. CENT 80-354-M (One Citation)
Citation No. 170681 was issued on October 11, 1979, and described the
pertinent condition or practice as follows:

On October 11, 1979, about 10:15, a 8 foot 10 inch by
2 foot beam weighing about 900 pounds was being unloaded from
the bed of semi-trailer by M. M. Sundt Construction Co. to be
laid on the ground level storage area. As the beam was being
swung about 90' degrees by the Grove truck crane, one of the
shake out hooks slipped out allowing the beam to fall from
about 6 and 1/2 feet on the ground on top of two supervisors
checking for lay out of iron on ground level in the area. The
beam pinned both men to the ground. The extent of the injuries:
The Foreman received - cracked ribs and bruises, abrasions.
The General Foreman received - cracked ribs, bruises, abrasions.
In terminating the citation on October 12, 1979, the inspector noted:
The M. M. Sundt Construction Co., Michael Zimmer, Project
Manager, presented a safety meeting to all their employees on
staying clear of suspended loads and being aware of work
environment at 07:30 hr., 10-12-79.
The citation alleged a violation of 30 C.F.R. § 56.16-9 which provides
that "men shall stay clear of suspended loads."
STIPULATIONS
The stipulations relating to Citation No. 170681 were as follows:
1. Jurisdiction over this proceeding is conferred upon
the Federal Mine Safety and Health Review Commission under

2955

the Federal Mine Safety and Health Act, 30 u.s.c. § 801,
et seq. The alleged violation of the Act took place in or
involves a mine that has products which enter commerce or
has operations or products which affect commerce.
2. The applicable mandatory safety standard, if any, is
contained at 30 C.F.R. § 56.15-9 of the Secretary's Rules
and Regulations.
3. All statements made by the Secretary's safety inspector on the face of the Citation forms, as amended, are true.
All Citation forms attached to the Complaint Proposing Penalty
are incorporated by reference, as if fully set forth herein.
4. The unloading of said beam by Sundt employees was in
performance of a construction contract between Respondent and
Sundt which required Sundt to provide all necessary labor,
supervision, materials, equiµnent, and tools required to
erect certain mechanical equipment and structural steel for
the 2nd Preheater Addition at the Longhorn Plant of Kaiser,
.at a lump SlUil contract price of $1,492,000.00. Sundt exercised an independent employment and contracted to do the work
according to its own judment and methods, and without being
subject to the control of Respondent except as to the results
of the work, and Sundt had the right to employ and direct the
actions of the workmen, independently of Respondent and free
from any superior· authority of Respondent to say how the work
would be done or what the laborers would do as it progressedo
At the time of said occurrence, Sundt was employing approximately 104 employees in the performance of said contract.
5. As part of said construction contract, Respondent
required Sundt to keep itself fully informed and to comply
with all state and federal laws affecting safety; to be
responsible for accident prevention and safety in performance
of the work; to take all reasonable measures to prevent
injury to persons or property as a result of the performance
of the contract work; to comply with all applicable safety
laws, including OSHA and MSHA; to make suitable arrangements
to supply first aid facilities to its employees; to guard
work performed on the construction site as necessary with
fences, barriers, lights, signs, etc.; to furnish all
necessary protective safety equiµnent to its employees; to
implement a safety program for its employees and to designate
a coordinator of safety; security, and fire control; and to
notify the Respondent of any hazardous conditions, property,
or equiµnent at the work site not under Sundt's control. At
the time of the alleged violation, Sundt had assigned a
Safety Director to the construction site.

2956

6. Respondent knew at all relevant times that Sundt
distributes written safety rules to each employee at the
time he or she is hired; and that these rules instruct the
employee, inter alia, "Never work under a suspended load."
7. Employees at Respondent's mine collectively work
between three-hundred thousand and five-hundred thousand
hours annually, and penalty points for mine size, if any,
would be 7. Employees of the company which controls
Respondent work between nine-hundred thousand and three
million hours annually, and the penalty points, if any,
based on the size of the controlling company would be 3.
The average nunber of violatons assessed per year in the
24 months preceding the instant alleged violation was 10.5,
and the penalty points, if any, for history of violations
would be 1. The average number of violations assessed per
inspection day in the 24 months preceding the instant
alleged violation was 1.05, and the penalty points, if
any, under the "Inspection Day'' factor would be 8.
8. The alleged violation was not due to any negligence
on the part of the Respondent, and the penalty points attributable to the "Negligence" factor should be "O". The preceding stipulation is based on the following, further
stipulations: (1) Respondent did not contribute by act or
omission to the occnrrence of the. allegen violation; (2) the
Respondent did not contribute by act or omission to the con-·
tinued existence of the alleged violation; (3) none of
Respondent's employees was exposed or likely to be exposed to
the unsafe conditions alleged; and (4) Respondent neither knew
nor should have known of the allegedly unsafe condition.
9. The probability, under normal circumstances, that an
injury would result from a violation of the cited standard is
"probable," and the penalty points, if any, to be assigned to
the "Probability of Occurrence" factor is 3. The gravity of
an injury resulting from violation of the cited standard may
normally be expected to involve lost work days or restricted
duty, and the penalty points, if any, to be assessed under
the "Gravity of Injury Expected" factor should be 3. None of
Respondent's employees was exposed to the alleged hazard, and
the nunber of penalty points to be assessed under the "Nunber
of Persons Affected" factor should be "O".
10. Respondent demonstrated its good faith by immediately persuading Sundt to meet with its employees and
reaffirm Sundt's safety rule requiring employees to stand
clear of suspended lo~ds; such meeting occurred within
24 hours of the alleged violations. Accordingly, the penalty points, if any, to be assessed to Respondent under the
"Demonstrated Good Faith" factor should be -5.

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11. The factors or criteria upon which the Petitioner
relies in proposing a discretionary penalty of $3,000.00 for
the instant citation consist solely of those articulated in
30 C.F.R. § 100.4 and in the Federal Mine Safety and Health
Act.
Supplementary Stipulation Docket No. CENT 80-354-M
Statutory Criteria Applicable to Violation No. 170681
Gravity of violation - moderate.
VIOLATIONS
The parties have stipulated all issues in the case with the exception
of the liability of Kaiser for violation due to acts committed by the
independent contractors and the sufficiency of the evidence of record to
establish the violation of 30 C.F.R. § 56.16-11 alleged in Citation
No. 172311 which has been dismissed.
Although the Federal Mine Safety and Health .Amendments Act of 1977
(Pub. L. 965-164, 30 u.s.c. § 801 et seq.) amended the definitions of "operator" to include an "independent contractor," conditions under which the
independent contractor rather than the owner-operator should be cited were
not prescribed. The Act still impo.ses. strict liability on the owner-operator
for violations and Kaiser has not been relieved of its liability by contracts
and understandings with the independent contractors.
The liability of the operator for violations by independent contractors
has been established by the Federal Mine Safety and Health Review Commission.
Secretary of Labor, Mine Safety and Health Review Commission v. Old Ben Coal
Company (MSHRC Docket No. VINC 79-119, 1 MSHC 2177, affirmed by the Court of
Appeals of the District of Colunbia Circuit, Docket No. 79-2367, December 9,
1980), and Monterey Coal Company v. Secretary of Labor, Mine Safety and Health
Administration and United Mine Workers, 1 FMSHRC 1781 (1979), appeal dismissed
sub nom. Monterey Coal Company v. Federal Mine Safety and Health Review
Commission, 635 F.2d 291 (4th Cir. 1980) (appeal dismissed as premature). In
Old Ben, the Commission held that the Secretary of Labor retained the discretion under the Act to cite the mine owner even though the 1977 .Amendments
amended the definition of "operator" to include "any independent contractor
performing services or construe tion" at a mine. In Monterey Coal, the
Commission, citing Old Ben, reversed an administrative law judge's decision
in which he had held the owner not liable.
The Federal Mine Safety and Health Review Commission, on August 4, 1980,
issued its decision in Secretary of Labor, Mine Safety and Health Administration (MSHA) v. Pittsburgh & Midway Coal Mining Company (P&M). 'Th.at case was
remanded to the judge to allow Petitioner an additional opportunity to elect
the parties against which it desired to proceed. In view of the Commission's
decision, an order was issued affording the Secretary of Labor an opportunity
determine whether to continue to prosecute the citations against Kaiser, or

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the independent contractor which was claimed to have violated the standards
cited, or both. On April 16, 1981, the Secretary formally complied with that
order by filing a response stating that it had elected to continue to proceed
against Kaiser with respect to each of the citations herein.
It is found as a matter of law that Kaiser may be held liable for violations committed by its independent contractor.
ASSESSMENTS
Citation No.

Amount

170S80
172310
172311
170681

$100
100
100
100
$400

Total
ORDER

Respondent is ORDERED to pay Petitioner the .slllll of $400 within 30 days
of the date of this order.

Forrest Eo S~ewart
Administrative Law Judge
Distribution:
Donald W. Hill, Esq., Office of the Solicitor, U.S. Department of Labor,
SSS Griffin Square Building, Suite 501, Dallas, TX 7S202 (Certified
Mail)

Robert E. Bettac, Esq., Foster & Associates, Inc., Suite 1313, National
Bank of Connnerce Building, San Antonio, TX 7820S (Certified Mail)
* United States Government Printing Office:l982--361-638/4365

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