January 1983
O:xrmission Decisions
1-27-83
1-27-83
1-28-83
1-28-83

Joseph W. Herman v. Imco Services
United States Steel Corp.
William A. Haro v. Magma Copper Co.
A. H. &nith Stone Co.

WEST 81-109-Jll.f
KENT 81-136
WEST 81-365-Jll.f
VA 81-51-M

Pg. 1
Pg. 3
Pg. 9
Pg. 13

SE 82-34-R
PENN 81-209-D
CENT 82-66-Jll.f
CENT 82-33-:-M
PENN 82-177
VA 79-128-D
PENN 82-63
KENT 80-14-D
WEVA 82-152-R
WEST 81-329-D
WEST 82-87-RM
WEVA 79-148-D
SE 81-34-Ild
WEST 82-136-M
wEsr 82-186-IM

Pg. 20
Pg. 28
Pg. 30
Pg. 38
Pg. 46
Pg. 78
Pg. 81
Pg. 131
Pg. 132
Pg. 139
Pg. 155
Pg. 164
Pg. 166
Pg. 168
Pg. 176

Administrative Law Judge Decisions
1-05-83
1-06-83
1-11-83
1-12-83
1-13~83

1-14-83
1-14-83
1-18-83
1-18-83
1-19-83
1-24-83
1-25-83
1-25-83
1-28-83
1-31-83

Jim Walter Resources, Inc.
Shannopin Mining Co.
Rex Allen v. UNC Mining and Milling
Phelps Dodge Corp.
U. S. Steel Mining Co.
J:IDger L. Hall v. B & B Mining, Inc.
Austin Powder Co. , Doan Coal Co.
Island Creek Coal Co.
Westnnreland Coal Co.
Charles J. Frazier v. Morrison-Knudsen, Inc.
CUmax Molybdenum
Allied Chemical Corp.
MSHA ex rel. Ray Gann & Dennis Gann v. Asarco
Minerals Exploration Co.
Walter Joe Blanc v. Brown & Root, Inc.

Coilll'lission Decisions

JANUARY

The following case was Directed for Review during the month of January:
Secretary of Labor on behalf of Phillip Cameron v. Consolidation Coal Company~
Docket No. WEVA 82-190-D. (Judge Merlin, December 13, 1982)
Review was Denied in the following cases during the month of January:
Secretary of Labor, MSHA v. Consolidation Coal Company, Docket Nos. PENN 82-89-R,
PENN 82-208(a). (Judge Melick, December 1, 1982)
Secretary of Labor, MSHA v. Allied Chemical Corporation, Docket No. WEST 82-97-RM.
(Judge Kennedy, December 6, 1982)
Secretary of Labor, MSHA v. Consolidation Coal Company, Docket Nos. PENN 82-64-R,
PENN 82-66-R, 82-109, 82-184. (Judge Broderick, December 6, 1982)
Secretary. of Labor, MSHA v. Southwestern Illinois Coal Corporation, Docket No.
LAKE 82-38. (Interlocutory Review of December 16·, 1982 Order of Judge Broderick)
William Haro v. Magma Copper Company, Docket No. WEST 81-365-DM. (Judge Boltz,
November 1, 1982)

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

January 27, 1983
JOSEPH W. HERMAN

v.

Docket No. WEST 81-109-DM

IMCO SERVICES
ORDER
On December 15, 1982, the Commission issued its decision in this
case affirming the administrative law judge's dismissal of Joseph W.
Herman's discrimination complaint as untimely filed under section
lOS(c) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 815(c). On January 18, 1983, we received a document filed by
Mr. Herman. We construe the document to be a request for reconsideration of the Commission's decision. 29 C.F.R. § 2700.75. We find
no merit in the request and, accordingly, it is denied.
We note Mr. Herman's request for "an appeal ••• to the next
judicial court available to me." We can take no action regarding
this request.. If complainant desires to appeal the Commission's
decision to a United States Court of Appeals, the appropriate procedures set forth in section 106(a) (1) of the Act (30 U.S .• C.
§ 816(a)(l)) and the Federal Rules of A pellate Procedure must be
followed by him.
/

1

83-1-11

Distribution
Joseph W. Herman
3525 San Mateo Ave.
Reno, Nevada 89509
Richard 0. Kwapil, Jr., Esq.
Woodburn, Wedge, Blakey and Jeppson
First Interstate Bank Bldg., 16th Fl.
One East First St.
Reno, Nevada · 89509
Aduiinistrative Law Judge John Morris
Fed. Mine Safety & Health Rev. Commission
333 West Colfax Avenue, Suite 400
Denver, Colorado 80204

2

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

January 27, .1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. KENT 81-13.6

UNITED STATES STEEL CORPORATION
DECISION
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 _!! ~· (1976 & Supp. V 1981),
and involves the interpretation of the surface coal standard, 30 C.F.R.
§ 77.1605(k) •. The standard states that "[b]erms or guards shall be
provided on the outer bank of elevated roadways." 1/ In granting summary decision for United States Steel Corporation,-the administrative
law judge concluded that the standard was unconstitutionally vague and,
therefore, unenforceable. 2/ For the reasons discussed below, we
reverse and remand for further proceedings •.
Following an inspection of U.S. Steel's No. 32 Mine in Lynch,
Kentucky, an MSHA inspector issued a citation alleging that the company
violated section 77.1605(k) by failing to install appropriate berms or
guards at three areas along a mine roadway. At one location, the inspector observed a guard dislodged for a distance of 29 feet. At one of
the other two cited locations there was a berm.6 to 8 inches high and
22 feet long, and at the remaining location there was a berm 16 inches
high and 29 feet long. The i~spector noted on the citation that the
height of these berms was less than 22 inches, the axle height of what
the inspector believed was the largest vehicle using the roadway, a
Pettibone tractor. The relevant MSHA inspector's manual contains a
policy providing that under section 77.1605(k) berms "shall be at

1/
"Berm" is defined in 30 C.F.R. § 77.2(d) as "a pile or mound of
material capable of restraining a vehicie."
]j
The judge's decision is ·repor.ted at 4 FMSHRC 563 (April 1982) (ALJ) •

83-1-12

3

least as high as the mid-axle height of the largest vehicle using the
roadway." 1./
At the hearing before the administrative law judge, the parties
filed a joint stipulation in which they agreed that the citation stated
that there were berms along the roadway except where the guard was.
dislodged. U.S. Steel claimed in the stipulation that it was replacing
the guard when the citation was issued. The parties filed cross motions
for summary decision.
The judge concluded that "the language of section 77.1605(k) •••
is so vague and ambiguous as to render [the standard] unenforceable."
4 FMSHRC at 571. The judge also held that the Surface Manual guideline
on mid-axle height, which he found formed the basis of the citation, was
not part of the standard and could not be applied as though it were.
4 FMSHRC at 570-71. The judge accordingly vacated the citation. We
directed review~ sponte. 30 U.S.C. § 813(d)(2)(B). The issues before
us are the constitutional validity of the standard and the judge's treatment of the MSHA Surface Manual guidelines.
We first address the question of whether section 77.1605(k) is
unconstitutionally vague. 4/ This standard is not detailed but, as we
have observed previously in a similar context, "[m]a~y standards must
be 'simple and brief in order to be broadly adaptable to myriad
circumstances.'" Alabama By-Products Corp., infra, slip op. at 3,
quoting from Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November 1981).
Nevertheless, such broad standards must afford reasonable notice of what
is required· or proscribed. As we stated in Alabama By-Products, supra:
In order to pass constitutional muster, a statute or
standard adopted thereunder cannot be "so incomplete,
vague, indefinite or uncertain that men of common
intelligence must necessarily guess at its meaning

l/

MSHA, Coal Mine Health and Safety Inspection Manual For Surface Coal
Mines and Surface Work Areas of Underground Coal Mines, at III-338 (1978)
("the Surface Manual 11 ). The Surface Manual is Chapter III of MSHA's Mine
Inspection and Investigation Manual, Federal Mine Safety and Health AC't"Of
1977 (1978)("the Inspection Manual"). The "Introduction," at vii, states
that the primary purpose of the Inspection Manual is to provide MSHA
inspection personnel with "definite guidelines" to aid them in.their official
duties.

4/ We reject the Secretary's contention that the Commission is without
authority to pass upon the constitutional soundness of this st'andard.
The standard was.promulgated under the 1969 Coal Act, and we have held
previously that challenges to the validity of a Coal Act standard,
including a vagueness challenge, can be raised and decided in an adjudication before the Commission. Alabama By-Products Corp., FMSHRC Docket
No. BARB 76-153, slip op. at 2 (December 9, 1982); Sewell Coal Company,
3 FMSHRC 1402, 1403-05 (June 1981).

4

and differ as to·its application." Connolly v. Gerald
Constr. Co., 269 U.S. 385, 391 (1926). Rather, "laws
[must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he
may act accordingly." Grayned v. City of Rockford, 408 U.S.
104, 108-109 (1972).
Slip op. at 2. We resolved a vagueness challenge in Alabama By-Products
by interpreting the standard at issue in light of a "reasonably prudent
person" test (slip op. at 2-3), and we adopt the same approach in the
present case.
We hold that the adequacy of a berm or guard under section
77 .1605(k) is to be measured against the standard of.. whether the
berm or guard is one a reasonably prudent person familiar with all
the facts, including those peculiar to the mining industry, would
have constructed to provide the protection intended by the standard.
See Alabama By-Products, supra. See also Voegele Company, Inc. v.
OSHRC, 625 F.2d 1075, 1077-79 (3rd Cir. 1980). 5f The definition of
berm in section 77.2(d) makes clear that the standard's protective
purpose is the provision of berms and, by implication, guards that
are "capable of restraining a vehicle." 2_/
Under. our interpretation of the standard, the adequacy of an operator's berms or guards should thus be evaluated in each case by reference
to an objective standard of a reasonably prudent person familiar with
the mining industry and in the context of the preventive purpose of the
statute. When alleging a violation of the standard, the Secretary is
required to present evidence showing that the operator's berms or guards
do not measur.e up to the kind that a reasonably prudent person would
provide under the circumstances. This evidence could include accepted
safety standards in the field of road construction, considerations unique
to the mining industry, and the circumstances at the operator's mine.
Various construction factors could bear upon what a reasonable person
would do, such as the condition of the roadway in issue, the roadway's
elevation and angle of incline, and the amount, type, and size of traffic
using the roadway. In sum, we hold that section 77.1605(k), as construed
herein, is not unconstitutionally vague and that it is therefore an
enforceable standard. LI

2_/

On review the Secretary now proposes a similar test for judging the
adequacy of a berm or guard. Brief for Sec'y at 14-16.
6/
"Restraining a vehicle" does not mean, as U.S. Steel suggests,
absolute prevention of overtravel by all vehicles under all circumstances. Given the heavy weights and. large sizes of many mine vehicles,
that would probably be an unattainable regulatory goal. Rather, the
standard requires reasonable control and guidance of vehicular motion.
7/
The Secretary is privileged under the Mine Act to write a more
specific berm standard setting forth more detailed specifications for
construction of safe berms and guards.

5

We agree with the judge that the citation in this case was issued
and litigated by the Secretary largely, if not solely, on the basis of
the Surface Manual's mid-axle "policy guideline." Although the citation
makes no reference to the Surface Manual, previously we have cautioned
the Secretary that informal materials like the Inspection Manual are
not binding on the Commission and do not control over the language of
standards. See Alabama By-Products, supra, slip op. at 5; King Knob
Coal Co., Inc., 3 FMSHRC 1417, 1419-23 (June 1981); Old Ben Coal Co.,
2 FMSHRC 2806, 2809 (October 1980). Reliance on the mid-axle guideline,
without more, does not necessarily establish the berm or gu~rd that a
reasonably prudent person would have constructed under the circumstances.
If the Secretary believes that a berm of mid-axle height is indeed what .
a reasonable person would provide in a particular case, the Secretary
must prove that by a preponderance of credible evidence. We thus approve
in result the judge's determination that the Secretary was not entitled
to summary decision on the basis of his internal guideline alone.
Under our rules, a motion for summary decision may be granted only
if the entire record shows no genuine issue of material fact and the
moving party is entitled to a·decision as a matter of law. 29 C.F.R.
§ 2700.64(b).
Having found the standard invalid, the judge did not
determine all factual issues necessary to
decision in this case. We
have concluded above that the standard is valid, and our review of the
record indicates to us that material factual issues remain to be decided
before it can be determined whether a violation occurred.

a

To prove 'the allegation of "inadequate" berms requires evidence as
to what type of berm or guard a reasonably prudent person would install
under the circumstances. With respect to the area where the guard was
dislodged, a prima facie case o~ violation may have been established, but
the judge must make findings as to whether the guard was actually missing
and whether U.S. Steel established a valid defense in its claim that the
guard ·was being replaced·. 8/ Without this kind of evidence and such
!indings, the entry of sumiiiary decision was inappropriate. Accordingly,
~e remand this proceeding in order to afford the parties the opportunity
to present any additional evidence and argument with respect to the alleged
violation in accordance with the principles set forth above.

8/ ·we express no view at this time on the viability of U.S. Steel's
asserted defense to this' aspect of the citation.

6

For the foregoing reasons, the judge's decision is reve~sed and the
proceeding is remanded for proceedings consistent with this decision.

L. Clair Nelson, Commissioner

7

Distribution
Louise Q. Symons, Esq.
U.S. Steel Corporation
600 Grant Street, Rm. 1580·
Pittsburgh, Pennsylvania 15230
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge George Koutras
Fed. Mine Safety & Health Rev. Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

8

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

January 28, 1983
WILLIAM A. HARO

v.

Docket No. WEST 81-365-DM

MAGMA COPPER COMPANY
ORDER
William, A. Haro has petitioned for discretionary review prose of
a decision of an administrative law judge issued on November 1, 1982.
Magma Copper has filed a motion requesting that the petition be dismissed as. untimely. For the reasons that follow, the petition is
dismissed as untimely.
·
The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., provides that "any person adversely affected or aggrieved by a
decision of·an administrative law judge, may file and serve a petition
for discretionary review by the Commission of such decision within 30
days after the issuance of such decision." 30 U.S.C. § 823(d)(2)(A)(i)
(emphasis added). Rules 5(d) and 70(a) of the Commission's rules or
procedure provide that "filing of a petition for discretionary review is
effective only upon receipt." 29 C.F.R. §§ 2700.5(d), 70(a). The
decision of the administrative law. judge becomes the final decision of
the Commission 40 days after its issuance unless the Commission has
directed review 6f the decision during that period. 30 U.S.C. § 823(d)(l).
The administrative law judge's decision in this case was issued on
November 1, 1982. The fortieth day following the issuance of the judge's
decision was December 11, 1982. The petition for discretionary review
was not mailed until December 22, 1982. It was not received, and therefore filed, at the Commission until December 27, 1982, fifty-six days
after the issuance of the judge's decision. Accordingly, the petit~on
for discretionary review was not filed until after the decision of the
judge became a final order of the Commission by operation of law.
30 u.s.c. § 823(d)(l).
In the petition, Haro states that he first learned of the judge's
decision on December 6, 1982, and that the attorney who represented him
in the proceedings before the judge can confirm the date of his notif ication of the judge's decision. Haro also states that the attorney did
not petition for review of the judge's decision because of a potential
conflict of interest with Magma Copper Company. We construe these

9

83-1-14

representations to be in effect a request for relief from a final
Commission order. 29 C.F.R. § 2700.l(b) (Federal Rules of Civil Procedure apply in absence of applicable Commission rule); Fed. R. Civ. P.
60 {Relief from Judgment or Order).
We have reviewed Haro's representations concerning the late filing
of the petition against the standards set forth in Fed. R. Civ·. P.
60(b)(l). 1./ Boone v. Rebel Coal Company, 4 FMSHRC 1232 (1982). See 7
Moore's Federal Practice § 60.22[2]; 11 Wright & Miller, Federal
Practice and· Procedure § 2858. Even if Haro's assertion that he first
learned of the decision on December 6 is accepted as fact, Haro has not
made any representations that his late receipt of the decision was due
to factors outside of his control or that of his attorney. The potential
conflict of interest that allegedly prevented Haro's attorney, who
represented him at the hearing and filed a post-hearing brief on his
behalf, from filing a petition with the Commission is not explained. In
view of the extraordinary nature of reopening final judgments, lack of
sufficient information substantiating a request for relief can be fatal
to such claims. 7 Moore's at § 60.22[2], p. 257. Moreover, Haro waited
more than two weeks after D~cember 6 to prepare and mail a petition two
paragraphs in length. ·This delay does not demonstrate diligence under
the circumstances. Haro has had two previous cases before the Commission
and should b_e familiar with its procedures. :?:._/

1./

Fed. R. ·Civ •. P. 60(b)(l) provides:·
On motion and upon such terms as are just, the court may relieve a
party or his legal representative from a final judgment, order, or
proceedi~g for the following reasons: (1) mistake, inadvertence,
surprise~ or .excusable ne·glect. •••
2/
The present situation is not analogous to that involved in Duval
Corp~ v. Donovan & FMSHRC, 650 F.2d 1051 (9th Cir. 1981).
In Duval the
operator's petition for discretionary review was filed on the thirtyfirst day after the issuance of the administrative law judge's decision.
Thus, although the petition for review was untimely filed under the Act
and the Counnission's rules, the judge's decision had not become a final
order of the Commission because 40 days had not passed since its .issuance.
30 U.S.C. § 823(d)(l). In a Duval situation, the inquiry is whether
good cause for the untimely filing has been. established. Valley Rock
& Sand Corp., WEST80;..3-M (March 29, 1982); McCoy v. Cresent Coal Co., 2
FMSHRC 1202 (June 1980). In the present case, however, the judge's
decision became a final order of the Commission and, therefore, the
request for relief is appropriately addressed under Fed. R. Civ. P.
60(b).

10

Accordingly, we grant Magma's motion to dismiss the petition as
untimely.

Commissioner

L. Clai

11

~

Nelson, Commissioner

Distribution
William A. Haro, Esq.
P.O. Box 1462
Florence, Arizona 85323
N. Douglas Grimwood, Esq.
Twitty, Sievwright & Mills
1700 Townehouse Tower
100 West Clarendon
.Phoenix, Arizona 85013

12

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

January 28, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 81-51-M

v.

A. H. SMITH STONE COMPANY
DECISION
This civil penaltyproceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 !:!~· (1976 & Supp. V 1981),
and involves the interpretation and application of 30 C.F.R. § 56.4-35.
The cited ~tandard provides:
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.
The administrative law judge concluded that A. H. Smith Stone Company
("Smith") violated the standard and assessed a $1,000 penalty. 1/ For
the following reasons, we affirm the judge's decision.
On November 24, 1980, an accident occurred at Smith's Culpeper,
Virginia crushed stone operation, when a miner attempted to cut with a
welding torch a used 55-gallon oil drum. The drum exploded and the
employee was critically injured. After an investigation of the accident,
MSHA issued a citation charging a violation of the standard for a
failure to _have the drum purged of flammable substances before heat was
applied to it.

Used drums that had contained flammable substances, such as fuel
oil, lubricants, or antifreeze, were customarily stored at Smith's
Culpeper plant behind a company trailer. The used drums were returnable for credit towards purchase of full barrels, and were picked up at
the plant for that purpose by the distributor. Some drums were kept at
the plant for re-use as trash barrels or as storage drums for fuel or
lubricants. When a drum was to be re-used as a·trash receptacle, Smith
would have its employees cut off the drum top with a torch on company

:!I

The judge's decision is reported at 3 FMSHRC 2927 (December 198l)(ALJ).

83-1-15

13

premises. Smith also had a practice of giving used drums to employees
upon request for their personal use. 3 FMSHRC at 2931-32; Tr. 55-56,
85-86. The used drums at the Culpeper plant were not drained, ventilated,
cleaned, or filled with inert gas or water before being put behind the
trailer, and were stored with their plugs in place. J:../

On the day of the accident, the miner in question asked the plant
superintendent for a used 55-gallon oil drum. Although i t appears that
the employee did not explain the reason for his request, the superintendent assumed that he wanted the drum for his personal use. 3 FMSHRC
at 2931-32; Tr. 83-86. 3/ The superintendent gave the employee permission
to take the drum. The employee then obtained from a fellow miner a
torch for cutting the drum, but he did not remove the plug or purge the
drum before using the torch. The drum exploded when he applied the
torch to it and he received fatal injuries. A subsequent investigation
revealed that a residue of petroleum distillate inside the drum had been
ignited by the heat of the torch.
The judge based hi$ conclusion that Smith violated section 56.4-35
on the evidence that "[the employee] applied a. torch to a container
which had contained combustible or flammable oil without draining,
ventilating, and cleaning the barrel." 3 FMSHRC at 2932. In assessing
the penalty, the judge also determined that Smith was negligent. The
judge found that Smith knew or should have known that it was possible
the miner would cut the oil drum on company premises. 3 FMSHRC at 2933.
The judge emphasized that Smith permitted its employees to take used
drums for personal use, and also at times instructed employees to cut
drums on company property for such company uses as making trash barrels.
Id. The judge concluded that "[w]hile [Smith] did attempt to instruct
the employees as to the proper procedure for purging drums, management
could have been more diligent in its attempts to insure that all drums
were properly ventilated and cleaned." Id.

On review Smith, proceeding pro se, commingles liability and
negligence arguments. Smith does not deny that the miner cut the drum
without first purging it. The operator contends, however, that it is
neither liable nor negligent in connection with the incident because it
had previously instructed the employee in proper purging procedures,
did not specifically authorize him to cut th~ ~rum on company premises,
and could not have foreseen that he would do so. We are not persuaded.

2/
The plant superintendent testified that the plugs were not pulled
(a procedure that would have allowed some ventilation of the drums)
because the distributor had requested that the plugs not be removed on
drums being returned for credit.
.
3/
Testimony at the hearing indicated that the miner intended to use
the drum at his home as a receptacle for draining oil. Tr. 38, 56-57.

14

Concerning the question of liability for a violation, the standard's
purging requirements are stated in mandatory terms: Before heat is
applied to a container that has held flammable substances, the container
"shall be" purged of those substances in the manner prescribed. There
is no dispute.that on mine premises Smith's employee applied heat to a·
container that had contained a flammable substance without first purging the container. Smith's various arguments that it should escape
liability because the miner's actions were unauthorized and careless
cannot be squared with either the broad and mandatory language of the
standard or the liability without fault structure of the Mine Act.
See Southern Ohio Coal Co., 4 FMSHRC 1459, 1462-64 (August 1982).
also Sewell Coal Co. v. FMSHRC, 686 F.2d 1066, 1071 (4th Cir.
1982); Allied Products Co. v. FMSHRC, 666 F.2d 890, 893-94 (5th Cir.
1982). We therefore affirm the judge's conclusion that a violation
of the standard occurred.

see

Regarding negligence, section llO(i) of the Mine Act requires that
in assessing penalties the Commission must consider, among other criteria,
"whether the operator was negligent." 30 U.S.C. § 820(i). Each mandatory
standard thus carries with it an accompanying duty of care to avoid violations of the standard, and an operator's failure to meet the appropriate
duty can lead to a finding of negligence if a violation of the standard
occurs. The fact that a violation was committed by a non-supervisory
employee does not necessarily shield an operator from being deemed
negligent. In this type of case, we look to such considerations as
the foreseeability of the miner's conduct, the risks involved, and the
operator's supervising, training, and disciplining of its employees to.
prevent violations of the standard in issue. Southern Ohio Coal Co.,
4 FMSHRC at 1463-64. See also Nacco Mining Co., 3 FMSHRC at 848, 850-51
(April 198l)(construing the analogous penalty· provision in 1969 Coal
Act where a foreman committed.a violation). In light of these general
principles, we affirm the judge's conclusion that the employee's conduct
was foreseeable and that Smith did not meet its duty of care under the
circumstances.
-An employee's cutting of a used drum with a torch at Smith's mining
operation was not an uncommon occurrence. Smith's employees performed
that task to make barrels for storing or burning trash at the plant.
The employee in question had previously cut drums on company premises for
such business purposes, and that function was part of his job description.
3 FMSRHC at 2931; Tr. 76, 83, 85-86. As the judge found, Smith was also
"liberal" in allowing its employees to take used drums for their own use
(3 FMSHRC at 2932), and the same employee had been given drums in the past
for his personal use. Tr. 55-56, 85. Cutting used drums to make receptacles was a common use of the drums. We thus affirm the judge's finding
that on the day of the accident ~t was reasonably foreseeable that the
employee might cut the drum on company property.
The used drum taken by the employee had.not been purged nor had
its plug been removed. A plugged, unpurged drum that has contained a
flammable substance is a highly dangerous instrumentality given an
ignition source and the consequent possibility of an explosion if heat
is applied. An operator must address a situation presenting a potential
source of explosion, as here, with a degree of care commensurate.with
that danger. Accordingly, it is incumbent upon an operator to maintain
proper control over a dangerous instrumentality like an unpurged oil drum.

15

The judge found that in the past Smith had orally instructed its
employees in the proper procedures for purging a used drum before
-cutting it to fuake a trash barrel. We conclude, however, that Smith's
reliance on past oral instructions when it allowed the employee to take
the unpurged oil drum did not amount to proper control of that dangerous
instrumentality. There are a number of potentially a'ppropriate precautions that an operator in Smith's position could have taken to
maintain control over unpurged drums. For example, Smith could have
marked unpurged drums, "purge before cutting"; it t:ould have posted at
the storage area a warning sign reminding employees of appropriate
purging procedures; cutting could have been permitted only under proper
supervision in designated areas. The record does not show that Smith
took any such precautions.
Indeed, the superintendent did not repeat
company instructions on purging when he let the employee take .the
unpurged drum even though, as we have concluded, it was. foreseeable
that the employee might cut it with a torch on company premises. !±../
Thus, we agree in result with the judge that Smith was negligent
in not discharging an appropriate duty of care under the circumstances
of this case. In reaching this conclusion, however, we do not endorse
the judge's reasoning that an operator in Smith's position should have
purged all containers that held flammable substances before storing them.
Although this may indeed be a safe practice to follow, the standard only
requires purging before heat is applied. Thus, in this case Smith's duty
of care could have been met by something more than mere reliance on p~st
oral instruction, but less than the across-the-board purging procedure
suggested by the judge. 1/

4/
Although the superintendent denied authorizing the employee to
cut the drum on company property, he did not forbid a~y cutting and,
indeed, testified that he would have given permission for cutting
had the employee requested it. 3 FMSHRC at 2933; Tr. 87. This
testimony reveals a manager·ial disposition to allow cutting for
personal purposes and underscores our conclusion that insufficient
care was taken when personal use of the drum was approved.
5/
We also reject two· additional arguments posed by Smith. Smith
complains that the transcript of the hearing was not made available to
it. At the hearing, however, ·the judge specifically stated in response
to Smith's request that transcripts c.ould be obtained from the reporter.
Tr. 133. Smith also complains of the Secretary's change of position
from not pleading negligence to alleging negligence just before the
trial •. Smith fails to show how this pre-trial change of theory was
prejudicial to it. Smith was informed prior to trial that the Secretary
would attempt to prove negligence on the basis of new evidence. Tr.
8-9. A shifting of legal theories based on evidence. revealed through
discovery or other sources after the initial pleadings is certainly not
(Footnote continued)

16

For the foregoing reasons, we affirm the judge's decision.

fn. 2_/ continued
uncommon. The Secretary orally sought a continuance to prepare his
negligence claim, and Smith did not oppose the motion. Tr. 8-12. Smith
did not specifically explain to the judge.how it would be legally prejudiced by the change of theory, did not state that it would need extra
time to prepare any additional defense, and did not attempt to show bad
faith or dila.tory motive on the Secretary's part. Tr. 8-15. Finally,
at no time during the administrative hearing did Smith object to the
introduction of this evidence on the grounds that it was outside the
scope of the pleadings. We find Smith's conduct tantamount to consent
to trial of the negligence issue. See in general, Mineral Industries
and Heavy Construction Group v. OSHRC, 639 F.2d 1289, 1293-94 (5th Cir •
. 1981).

17

Distribution
Anna Wolgast, Esq.
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Wheeler Green, Safety Director
A. H. Smith Stone
Branchville, Maryland 20740
Administrative Law Judge George Koutras
Fed. Mine Safety & Health Rev. Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

18

Administrative Law Jud~e Decisions

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

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

22041

Application for Review

JIM WALTER RESOURCES, INC.,
Contestant
v.

Docket No. SE 82-34~R
Order No. 0757586; 2/19/32

SECRETARY OF LABOR,
HINE SAFETY Alm HEALTH
ADHINISTRATim~ (HSP..A) ,
Respondent

No. 7 ~line

Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY Alm HEALTH
ADMINISTRATION (USHA),
Petitioner
v.

Docket No. SE 32-53
A/O llo. 01-01401-03041 F
No. 7 ~line

JHI HALTER RESOUJlCES, INC.,

Respondent
DEC IS IOU
Appearances:

Robert W.-Pollard, Esq., Birmingham, Alabama, and E. Gerald
Reynolds, Esq., Tampa, Florida, for Jim Walter Resources, Inc.;
Frederick H. Moncrief, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the Secretary
of Labor.

Before:

Aclrainistrative Law Judge Broderick

STATEMEHT OF THE CASE
On February 15, 1982, a fatal roof fall occurred at the ~To. 7 Mine of
Jim Walter Resources (the operator). 'Following an investir:;ation which comnenced
on February 16, 1982;, HSHA on February 19, 1982,_ issued an imminent danger Order
of Withdrawal under section 107(a) of the Federal Hine Safety and Health Act
of 1977, 30 U.S.C. § 817(a) (the Act). The order also alle~ed that the practice
described in the order was proscribed by the a?proved roof control plan and
therefore violated JO C.F.R. § 75.200.
'

20

Pursuant .to notice, a hearing was held in the Review proceeding in
Birmingham, Alabama, on September 21, 1982. Uilliam H. ·Pitts, an HSHA roof
control specialist, testified for the Secretary. Ed Melhorn, an USHA mine
inspector, was called as a witness by the operator and Charles J. Hager, III
and Frederick Carr also testified on the operator's behalf. A civil penalty
case was subsequently filed. Because the ciyil penalty proceeding and the
review proceeding involve the same order, and similar issues of fact and law,
they are hereby COUSOl.IDATED.
Both parties have filed posthearing briefs. On the basis of the evidence
introduced at the hearing and cons·idering the contentions of the parties, I
make the following decision.
FIHDINGS OF FACT
1. At all times pertinent to these proceedings, Jim Walter was the owner
and operator ·of the No. 7 ~1ine in Tuscaloosa County, Alabama.

2. On February 15, 1932, a fatal roof fall occurred in the subject mine
in the face area of No. 4 entry, Uo. 1 section.
3. An order of withdrawal was issued on February 19, 1932, which alleged
that the followinE condition or practice occurring on February 15, 1982,
constituted an imminent danger and a violation of the approved roof control
plan:
A fatal roof fall a~cident occurred on the No. 1 section at
the face of the No. 4 entry and based on evidence and testimony,
the victim was installing a support to install line curtain
and while installing the support the victim was standing more
than 5 feet inby the permanent roof supports and more than 5 feet
from the rib or face. The approved roof control plan requires
that workmen shall be within 5 feet of the face or rib or
permanent supports while extending line curtain.
4. On February 19, 1932, a modification of the order of withdrawal was
issued which permitted mining operations to continue "while the following
sequence of roof supports are installed to advance the line· curtain and to
permit HSIIA personnel to evaluate this system:" A minimum of two temporary
supports are required when any work is performed inby the last row of
permanent supports. One must be a jack or timber set no more than 5 feet from
the rib and the other the miner head placed ae;ainst the top. These supports
shall be not more than 4 feet apqrt and not more than 5 feet inby the last row
of permanent supports or last temporary support. Any work done inby the last
row of roof supports shall be <lone between such supports and the nearest face
or rib.

21

5. On February 15, 1982, the continuous miner dislodged the last inby
safety jack.to which the end of the line curtain was attached as the min~r was
tranunins back from the face.
6. The miner operator and miner helper then proceeded inby the permanent
supports to reset the jack and reattach the line curtain to it. They travelled
on the left side (the "wide side") of the curtain after examining the roof
visually and sounding it with a hammer. The miner operator was holding the
jack to the right side of it and the helper began tightening the screw while
standing on the left side. A roof rock fell brushing the miner operator and
knocking him back against the right rib. I t fell on top of the helper and
killed him. The victim was approximately 7-1/2 feet from the right rib and
5 feet inby the last standing roof jack. He was 10 feet inby the last row of
permanent roof supports.
7. The approved roof control plan in effect for the subject mine at the
time of the.fatality contained the following safety precautions among others:
"4. When testing roof or installing supports in the face
area, the work.-nen shall be within 5 feet (less i f indicated on
sketch) of a temporary or permanent support."
"5. llhen it is necessary to perform any work such as extend
line curtains or other ventilating devices inby the roof bolts or
to make methane tests inby the roof bolts, a minimum of two
temporary supports shall-be 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."
8. .The approved ventilation plan in effect for the subject mine at the
time of the fatality required that a line curtain be maintained to within
10 feet of the face. The mine liberated considerable methane which required
an exceptionally high velocity and quantity of air to ventilate the face area.
Because of this it was necessary to fasten the curtain to the top, the miJ<lle,
and the bottom of the. temporary support.
·
9. A fatal roof fall occurred at the No. 3 Hine of JiI!l. Walters' on
November 21, 1979, under circumstances similar to those involved in this case.
A citation was issued in the prior case charging a violation of 30 C.F.R.
§ 75.200 because of failure to comply with the approved roof control plan.
The
citation was contested before the Commission. After a hearing, Judge James
Laurenson found that paragraph 4 of the roof control plan (which is identical
to the same paragraph in the roof control plan applicable in this case) did not
require that miners travel between the temporary support and the nearest rib
when setting supports to extend the line curtain. The Judge granted the notice
of contest and vacated the citation. Jim Halters v. Secretary, 2 FHSHRC 3276
(1930).

22

10. The Secretary states that Judge Laurenson's decision involved circumstances "virtually identical"·to those in the case before me.
· 11. The Secretary did not petition for review of Judge Laurenson's
decision.
12. Subsequent to Judge Laurenson's decision, there were discussions
between i1SHA officials and the operator attempting to clarify the requirements
of paragraphs 4 and 5 of the safety precautions in the roof control plan, but
no changes were agreed upon.
13. Subsequent to the fatal roof fall involved herein, there have been
discussions between HSHA and the operator relating to ..paragraphs 4 and 5 of .
the precautions in the approved roof control plan. Specifically, a rewriting
of the above paragraphs permitting the use of the miner head a's roof support
has been discussed, but the plan has not yet been modified.
STATUTORY PROVISION
Section 3(j) of the Act defines an ir:uninent danger as "the existence of any
condition or practice in a coal or other mine which could reas~nably be expected
to cause death or serious physical harm before such condition or practice can
be abated."
REGULATORY PROVISION
30 C.F.R. § 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, 1970. The plan shall show·the type of support and
spacing approved by the S~cretary. Such plan shall be reviewed
periodically, at least every 6 months by the Secretary, taking
into consideration any falls of roof or ribs or inadequately of
support of roof or ribs. no person 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.

23

ISSUES
1. Whether the condition or practice described in the order of withdrawal
existed in the subject mine and, if so, whether it constituted an innninent
danger.

2. Whether a violation of the approved roof control plan and therefore
of 30 C.F.R. § 75.200 was established.
(a) Hhether the Secretary is estopped or barred from
asserting that the condition is a violation of the standard by
reason of the decision in Jim Halters Resources Inc., 2 FMSHRC
3276 (1980).
3. If a violation of .the mandatory standard was established, what is the
appropriate penalty therefor?
CON CL US IOl~S OF LAW
Jim Halter Resources, Inc. was subject to ·the provisions of the Federal
Hine Safety and Health Act in the operation of the No. 7 Hine at all times
pertinent hereto, and the undersigned Administrative Law Judge has jurisdiction
over the parties and subject matter of this proceeding.
IMMINENT DANGER
The existence of an imminent danger and the propriety of an imminent danger
order of withdrawal do not depend upon the existence of a violation of a
mandatory standard. Freeman Coal l1ining Corporation, 2 IBMA 197. An inu:iinent
danger under the Act is not limited to situations involving "immediate danger"
but includes conditions that "would induce a reasonable man to estimate that,
if normal operations • . . proceeded, it is at least just as probable as not
that the feared accident or disaster would occur before elimination of the
danger." Old Ben Coal Corp. v. Interior Bd. of Hine Op. App., 523 F.2d 25, 32
(7th Cir. 1975), quoting Freeman Coal ~1ining Co. v. Interior Bd. of :1ine Op. App.
504 F.2d 741, 743 (7th Cir. 1974).
The order under review here alleges that a miner was standing more than
5 feet inby the permanent.roof supports and more than 5 feet from the rib or
face, and the evidence introduced at the hearing establishes that such were the
facts (Finding of fact No. 6). I1SIIA roof control specialist Pitts considers
this practice equivalent to travelling or working under unsupported roof and
therefore an imminent danger. His opinion was based in part on the fatality
which occurred here and the one which occurred in Jim Halters No. 3 !.1ine
referred to in F:tnding uf Fact No. 9.

24

I conclude that Mr. Pitt's opinion that the condition or practice which
was shown to exist here would probably re~ult in an injury was certainly a
reasonable one. The evidence is clear that the condition or practice described
not only could reasonably be expected to cause death or serious physical harm,
but that in fact it did cause or at least contribute to the death of two of the
operator's employees. The contention of the operator that the rib conditions
may also present a hazar<l in no way negates the dan3er posed by unsupported
roof. The fact that the condition or practice was permitted by the roof control
plan (if it was) does not negate the existence of an im..'1inent danger. Therefore,
I conclude that working or travelling more than 5 feet inby permanent supports
and more than 5 feet from a rib or face is an· imminent danger and the withdrawal
order was properly issued.
The operator argues that the practice cannot constitute an imminent danger
since it has been followed for many years in the subject mine and in other
mines in the district. Non sequitur. The fact that an imminently dangerous
condition has existed and been tolerated is no argument for its continuance.
The operator also argues that the 3 day delay between the investigation and
the issuance of the order indicates that the condition was not imminently
dangerous. HSIIA' s explanation for the time period is that there were discussions with State officials, Mine ManaGement and Union representatives concerning
the practice, and that when· ~line Uanagement stated that the practice would
continue, it was decided to issue the withdrawal order. Clearly, the withdrawal
order should have been issued immediately after the investigation, but the delay
hardly establishes that the condition or practice was not imminently dangerous.
RES JUDICATA/COLLATERAL ESTOPPEL
Judge Laurenson's decision, which involved, as the Solicitor states,
"virtually identical circumstances" to those in the case before me, held that
paragraph 4 of the precautions in the roof control plan governswhen roof
supports are being installed to extend the line curtains. Since paragraph 4
does not require that miners stay within 5 feet of a rib or face, he vacated
the citation and dismissed the civil penalty proposal. Judge Laurenson's
decision followed .a formal adversary hearing; both parties filed posthearing
briefs. The government did not file a petition for discretionary review with
the Commission. Counsel states "that some consideration was given to whether
or not to file a [petition for review]" but in any event, it was not filed.
Therefore, Judge Laurenson's decision was the final decision of the Colih~ission.
Following that decision MSHA could have petitioned for review (and
appealed to the Court of Appeals i f the petition was denied) or it could have
proceeded to modify the roof control plan. It <lid neither, but rather chose
to isnore the decision and yet continue to enforce its interpretation of the
roof control plan which had been rejected. The parties to the two proceedings
are the same, the roof control plan has not been changed, the circumstances 1~n
the two cases· are "virtually identical." It would appear that if ~ judicata
is ever applicable to administrative proceedings, it is applicable here.

25

The Supreme Court stated in United States v. Utah Construction and Mining
Co., 384 U.S. 394 (1966) at 421:
When an administrative agency is acting in a judicial
capacity and resolves disputed issues of fact properly before it
which the parties have had an adequate opportunity to litigate,
the courts have not hesitated to apply res judicata to enforce
repose.

*

*

*

*

*

*

In the present case, the Board was acting in a judicial
capacity when it considered the • • • claims, the factual disputes
resolved were clearly relevant to issues properly before it and
·both parties had a full and fair opportunity to argue their
version of the facts and an opportunity to seek court review of
any adverse findings. There is, therefore, neit·her need nor
justification for a second evidentiary hearing on these matters
already resolved as between the two parties.
See also Mitchell v. National Broadcasting Co., 553 F.2d 265 (2nd Cir.
1977); Atlantic Richfield Company v. Federal Energy Administration, 556 F.2d
542 (T.E;C.A. 1977); Bowen v. United States, 570 F.2d 1311 (7th Cir. 1973);
Continental Can v. Marshall, 603 F.2d 590 (7th Cir. 1979). In the Continental
Can case, the court held (594-5) that the tests are whether the issue raised in
the subsequent case is the same as that decided in the prior case; ~Vhether the
issue was actually litigated; whether the decision in the prior case depended
on the resolution of the issue; and whether the decision was final. ~he
Secretary asserts in his brief that Judge Laurenson's decision was not "final"
and refers to Commission Rule 73 which states that an unreviewed decision of a
judge is not a precedent. This rule has nothing to do with finality or
res judicata, but with stare decisis, a wholly different doctrine. I concluJe,
following the tests in Continental Can that Judge Laurenson's decision is
res judicata and the Secretary is precluded from challenging it in the proceeding
before me.
It is grossly unfair to assert, as the Solicitor does in his brief, that
"What is at stake, as these two cases dramatically illustrate,
is human life. However well ·intentioqal nanagement may have been
in relying on the prior decision, the cost of that reliance was a
life. Such a result is not to be tolerated by a law the stated
purpC?se of which is the preservation of life."
Judge Laurenson's decision was issued ~ovember 14, i980. The fatal injury
involved herein occurred February 15, 1982. Since the Secretary chose not to
appeal, he had ample opportunity to effect changes in the roof control plan.
I!e failed to do so.

26

Since I have concluded that Judge Laurenson's decision is res judicata as
between the parties, I conclude that a violation of 30 C.F.R. § 75.200 has not
been shown. Further discussion of the merits of the case or of Judge Laurenson's
decision is unnecessary and inappropriate.
PENALTY
Since I have concluded that a violation of a l!landatory safety standard was
not established, the penalty proceeding must be dismissed. An imminent danger
order of withdrawal will not per ~ support a penalty assessment.
ORDER
Based upon the above findings of fact and conclusions of law, IT IS
ORDERED:
1. The withdrawal order issued under section 107 of the Act, as a
withdrawal order is AFFIRMED.

§

2. The withdrawal order, insofar as it charges a violation of 30 C.F.R.
75.200, is VACATED.
3.

The penalty proceeding is DISHISSED.

J

~uw.s
A1Jwdvvi:£
James A. Broderick

Distribution:

· Administrative Law Judge

By certified mail

Robert W. Pollard, Esq., Post Office Box C-79, Birmingham, AL 35233
H. Gerald Reynolds, Esq., 1500 N. Dale Mabry Highway, Tampa, FL 33607
Frederick 1-!. Moncrief, Esq., Office of the Solicitor, U.S. i)e·partment of Labor,
4015 Wilson Blvd., Arlington, VA 22203
George D. Palmer, Esq., Associate Re8ional Solicitor, U.S.
1929 9th Avenue South, Birningha1~, AL 35256

27

nepart~ent

of Labor,

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

JAN 61983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Applicant

Application for Review
of Discrimination
Docket No. PENN 81-209-D
MSHA Case No. PITT cn-81-10

v.
SHANNOPIN MINING COMPANY,
Respondent

Shannopin Mine
Sol No. 12874

FURTHER FINDINGS OF FACT
AND

FINAL ORDER
On November 30, 1982, a decision was entered on the issue of a violation
of section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801, et ~·
The decision deferred a final order pending submissions from
the parties as to the appropriate relief to be granted based on the decision.
FINAL ORDER
Having considered the parties' submissions with respect to a proposed final
order, and a post-decision motion by the United.Mine Workers of America to
intervene for the purpose df submitting a proposed order for relief, it is hereby
ORDERED:
1. The UMWA's motion to intervene is DENIED as being untimely and lacking
good cause oµ the merits.
2. The Secretary's proposed supplemental stipulations are APPROVED and
hereby INCORPORATED as FURTHER FINDINGS OF FACT in this proceeding.
3. Based on the record as a whole, and on the statutory criteria for
ass.essing a civil penalty for a violation of ·the Act, Respondent is ASSESSED a
civil penalty of $800 for its violation of section 105(c) of the Act as found in
the above-mentioned decision; Respondent shall pay such penalty to the Secretary
within 30 days from the date of this Order.
4. Respondent shall make payment to George Mateleska in the amount of
$392.40, with interest.at the rate of 12 percent per annum accruing from March 5,
1981, until paid, to comp·ensate him for the 5 days lost pay incurred as a result
of Respondent's unlawful suspension of him.

28

5. Respondent shall make payment to George Mateleska in the amount of
.$235.44, with interest at the rate of 12 percent per annum accruing from
Dec.ember 16, 1981, until paid, to compensate him for his expenses in connection
with this litigation.
6. Respondent shall expunge from its records all references to the suspension
of George Mateleska which has been found herein to have been a violation of
section 105(c.) of the Act.
7. Respondent shall post a copy of the decision of November 30, 1982, and
a copy of this Order on the mine bulletin board, or at s·uch other conspicuous
place where notices are normally posted for employees of the Shannopin Mine,
and keep such copies posted, unobstructed and protected from the weather, for·a
consecutive period of at least 60 days.

WILLIAM FAUVER, JUDGE
Distribution Certified Mail:
Covette Rooney, Esq., Office of the Solicitor, U.S. Department of Labor,
Room 14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104
Jane A. Lewis, Esq., Thorp., Reed & Armstrong, 2900 Grant BUilding; Pittsburgh,
PA 15219
. Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th Street, N.W.,
Washington, DC 20005

29

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

JAN 111983
REX ALLEN,
Complainant

Complaint of Discharge,
Discrimination, or Interference

v.
Docket No. CENT 82-66-DM
UNC MINING AND MILLING,
Respondent

MD 80-156
Churchrock Operations
DECISION

Appearances:

Grant L. Foutz, Esq., Gallup, New Mexico, appeared for
Complainant;
Lindsay Lovejoy, Esq., Stephenson, Carpenter, Crout & Olmsted
and Lea Brownfield, Esq., all of Santa Fe, New Mexico, appeared
for Respondent.

STATEMENT OF THE CASE
The complaint filed herein alleges that Complainant was discharged on
March 26, 1980, from the position he h~ld with Respondent, as a result of activity protected under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801.
Complainant filed a complaint of discrimination with l1SHA on August 9,
1980. MSHA denied the complaint by a lett~r dated January 6, 1982. The complaint was filed with the Review Commission on January 25, 198.2. Pursuant to
notice, the case was heard in Gallup, New Mexico, on October 19, 1982. Rex
Allen, Gilbert MacLellan, Robert Robb and Ron MacLel!an were called as witnesses
by Complainant. No witnesses were called by Respondent. Both parties have
filed posthearing briefs with proposed findings of fact and conclusions of law.
Based on the entire record, and considering the contentions of the parties, I
make the following decision.
FINDINGS OF FACT
1. At all dues pertinent to this proceeding, Respondent was the operator
of the Northeast Church Rock Mine near Gallup, New Mexico.

30

2. Complaint was employed by Respondent beginning September 15, 1972, as
an oiler. He was promoted to mechanic trainee and then journeyman mechanic in
1973. Later that year he became lead mechanic. In 1974 he was temporarily
maintenance superintendent and then became general underground foreman. He
supervised approximately ·150 employees while in this position. For about
1-1/2 years he was placed in charge of planning and coordinating and in about
1976 became underground general maintenance foreman in which position he
continued until January, 1980, when he temporarily did some surface projects.
He returned to his underground duties in February 1980, and was classified as
1700 level foreman. He left the employ of Respondent on March 26, 1980. He
. was reemployed by Respondent in November 1980 washing and servicing cars. He
was a journeyman mechanic ~t the time of the hearing.
3. In 1977 and 1978, Complainant received very few complaints regarding
safety from those who worked under him--approximately 10 each year. In 1979,
such safety complaints went up to perhaps 10 each day. At least two employees
left the company because they were concerned about safety. The alleged unsafe
conditions included loose rock, cave-ins, and improper ventilation. Complainant's
employees were required to travel over muck piles and ground fall piles to get
to equipment. A number of citations were issued by MSHA inspectors in 1979 for
these conditions. Complainant reported these conditions to his supervisors and
to the Safety Department "plenty of times."
'
4. On one occaston in April of 1979, a loader had been taken out of
service by Complainant's crew because it did not have brakeS'. Thevload~r was
"red-tagged." However, the production crew ignored the red tag and put the
loader in service. An MSHA inspector discovered that it had no br.akes and
issued a citation. Complainant was upset and voiced his feelings to his
supervisors. In February, 1980, a haulage truck was taken out from the shop
even though it had a faulty shift lever. An accident occurred when the truck
jumped out of gear.

5. On many occasions, Complainant reported inadequate ventilation in his
shops which caused dizzyness and disorientation in his employees. His supervisors told him they were trying to correct the condition and that if his
employees didn't like it they could quit.
6. Production meetings attended by Complaint were held twice daily.
Complainant brought up safety complaints at thes_e meetings and was accused of
complaining and griping.
7. In_ early 1979, Complainant reported that .loose rock and ground falls
affected part of the maintenance shop •. The roof bolts had become loose. An
attempt was made to .correct the sitation but eventually the shop roof caved
in.

31

9. In January 1980, Complainant was transferred to the surface and was
under the supervision of Jack Miller. From January 25, 1980 until March 26,
1980, his supervisor was Mike Robb who took over as maintenance superintendent.
For about 9 months prior to January 25, 1980, Robb had been resident engineer
at the subject mine, but during that time, he had no supervisory duties with
respect to Complainant. Complainant returned to underground duties in early
February, 1980. His job title was 1700 level foreman and he was under the
immediate supervision of Jerry Troxell who became general underground maintenance
foreman.
10. In February or early March, 1980, Robb told Complainant that he
thought the truck shop "was a complete mess" and that he would have to improve
the condition of the shop.
11. During the time Robb was his supervisor, Complainant did not make
any safety complaints, oral or written, to him, nor was Robb aware of safety
complaints made to prior supervisors.
12. On March 25, 1980, Complainant was asked by Troxell to come in to
Mike-Robb's office. Robb, Troxell, Wayne Bennett, head of Respondent's
Industrial Relations Department and Complainant were present. Robb informed
Complainant that lack of water control had caused equipment to break down,
parts were not being properly handled and Complainant "did a great deal of
complaining and very little action." The complaints concerned lack of parts
availability and production abuse of equipment. Robb told ~ompla~~ant_that
his performance was not satisfactory and that henceforth he would confer with
Robb and Troxell every Monday morning and discuss his job performance the
previous week. A deadline of May 1 was set for Complainant to show improvement.
Complainant did not bring up any safety complaints or concerns during this
meeting.
· DISCUSSION
There is sharp disagreement between Complainant and Robb as to what took
place at the meeting. Neither Bennett nor Troxell was called as a witness.
According to Robb both were employed by other companies out of the State of
New Mexico. Complainant stated that Robb told him he (Complainant) was not
doing his job, but was going around complaining all the time. Complainant took
this to refer to safety complaining. Robb testified that he pointed out
specific instances where Complainant's work was unsatisfactory. Complainant
testified that at the conclusions of the meeting he was told that he could
resign and have "layoff status, severance pay (~nd) insurance coverage" for a
period of time, or he would be terminated. An answer was demanded by 8:00 the
following morning. Robb testified that at the conclusion of the meeting,
Complainant was told that he would in effect be placed on probation, would be
counselled every Monday and would have to show improvement by May 1, 1980. I
am generally accepting Mr •.Robb's version of the meeting. This is based in part

32

on my assessment of- the credibility of the two men as witnesses and on the
interest or lack of interest in the outcome of this litigation. More
importantly, it is based on the memorandum of the meeting prepared by Robb on
March 27, 1980, which is part of Complainant's Exhibit 2 and which supports
Robb's version of the meeting.
13. On March 26, 1980, Complainant met with Bennett and submitted a
"resignation with layoff status." He continued on the payroll with severance
pay to July 15, 1980. He also retained insurance benefits.
14. Complainant's mother was seriously .ill in April.and May, 1980, and
was under intensive care and thought to be dying.
15. On August 8, 1980, Complainant filed his initial complaint with MSHA.
An investigation was conducted andMSHA denied the complaint on January 6, 1982.
Complainant filed his complaint with the Review Commission on January 25, 1982.
DISCUSSION
Complainant offered in evidence a copy of the MSHA Investigation file
which he received from MSHA Dallas Office. Respondent objected and I excluded
the documents primarily because substantial portion of the investigation report
and of the transcripts of interviews had been excised. ·complainant did not
attempt to subpoena the record or the investigator. The exhibit as offered is
to some extent unintelligible and possibly prejudicial. I conclude that it
would be unfair to the parties and unhelpful to me to admit~the exhibi~.
16. Robb left Respondent's employ on March 30, 1980. He knew on March 25,
1980, that he was going to leave on March 30. He expected that the counselling
of Complainant referred to in Finding of Fact No. 12 would be conducted by
Troxell.
STATUTORY PROVISION
Section 105(c) of the Act provides in part as follows:
(c)(l) 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 of the
exercise by such miner, representative of miners or applicant for
employment on behalf of himself or others of any stautory right
afforded by this Act.

33

(2) Any miner or applicant for employment or representative
of miners who believes that he has been discharged, interfered
with, or otherwise discriminated against by any person in violation of this subsection may, within 60 days after such violation
occurrs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall
forward a copy of the complaint to the respondent and shall cause
such investigation to be made as he deems appropriate. Such
investigation shall commence within 15 days of the Secretary's
receipt of the complaint, and if the Secretary finds that such
complaint was not frivolously brought, the Commission on an
expedited basis upon application of the Secretary, shall order
the immediate reinstatement of the miner pending final order on
the complaint. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated,
he shall immediately file a complaint with the Commission, with
service upon the alleged violator and the miner, applicant for
employment, or representative of miners alleging such discrimination or interference and propose an order granting appropriate
relief. 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 upon findings of fact,
affirming,_ modifying, or vacating the Secretary's proposed order,.
or directing other appropriate relief.. Such order shall become
final 30 days after its issuance. The Commission shal~ have ·
authority in such proceedings to require a person committing a
violation of this subsection to take such affirmative action to
abate the violation as the Commission deem~ appropriate, including,
but not limited .to, th~ rehiring or reinstatement of the miner to
his former position with back pay and interest. The complaining
miner, applicant, or representative of miners may present additional evidence on his own behalf during any hearing held pursuant
to his paragraph~
(3) Within 90 days of the receipt of a complaint filed under
paragraph (2), the Secretary shall notify, in writing, the miner,
applicant for employment, or representative of miners of his
determination wli.ether a violation has occurred. If the Secretary,
upon investigation, determines that the provisions of this subsection have not been violated, the complainant shall have the
right, within 30 days of notice of the Secretary's determination,
to file an action in his own behalf before the Commission, charging discrimination or interference in violation of paragraph (1).
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 upon findings of fact, dismissing or
sustaining the complainant's charges and, if the charges are
sustained, granting such relief as it deems appropriate, including
but not limited to, an order requiring the rehiring or reinstatement of the miner to his former position with back pay and interest
or such remedy as may be appropriate. Such order shall become
final 30.days after its issuance. Whenever an order is issued
sustaining the complainant's charges under this subsection, a sum
equal to the aggregate amount of all costs and expenses (including
attorney's fees) as determined by the Commission to have been
reasonably incurred by the miner, applicant for employment or
representative of miners for, or in connection with, the institution and prosecution of such proceedings shall be assessed against
the person committing such violation. Proceedings under this section shall be expedited by the Secretary and the Commission. Any
order issued by the Commission under this paragraph shall be
subject to judicial review in accordance with section 106.
Violations by any person of paragraph (1) shall be subject to the
provisions of sections 108 and llO(a).
·
ISSUES
1.
laches.

Whether the complaint is barred by the statute of limitations or

2. Whether Complainant voluntarily left his employment with Respondent on
March 26, 1980, o.r was discharged, actually or constructively.
3. If Complainant was discharged, was it related to activity protected
under the Act.
4. If Complainant was discharged for protected activity, what relief
should be awarded.
CONCLUSIONS OF LAW
1. Complainant and Respondent were subject to the provisions of the
Federal Mine Safety and Health Act at all times pertinent hereto, and the
undersigned Administrative Law Judge has jurisdiction over the parties an~
subject matter of this proceeding.
2. The complaint is not barred by the limitations for filing claims set
out in section lOS(c) of the Act or by laches.

35

DISCUSSION
Complainant filed his complaint with MSHA on August 8, 1980, and his
employment was terminated March 26, 1980. However, he remained on the payroll
by reason of severance pay to July 15, 1980. He claims that he was distracted
because of his mother's illness at the time. Respondent asserts that prejudice
resulted from the delay because former supervisors Jack Miller, Wayne Bennett,
Jerry Troxell and Mike Robb have left Respondent's employ, and all but Robb
are now living and working outside of New Mexico.
It has been held that the statutory filing deadlines are not jurisdictional. Secretary/Bennett v. Kaiser Aluminun and Chemical Corporation, 3 FMSHRC
1539 (1981). See also Christi~n v. South Hopkins Coal Co., 1 FMSHRC 126 (1979);
Local 5429 v. Consolidation Coal Co., 1 FMSHRC 1300 (1979); S. Rep. No. 95-181,
95th Cong., 1st Sess. at 36, reprinted in LEGISLATIVE HISTORY of the FEDERAL
MINE SAFETY AND HEALTH ACT OF 1977, Senate Subcommittee on Labor, Connnittee on
Human Resources (July 1978) 624 (hereinafter.LEG. HIST.) ("It should be
emphasized, however, that these time-frames [in 105(c)] are not intended to be
jurisdictional.")
The questions to be considered here are whether Complainant showed
justifiable circumstances for his delay in filing and whether the delay
prejudiced Respondent. See Herman v. Imco Services, 4 FMSHRC
(December 15, 1982).

---

The fact that Complainant remained on the payroll and s_µffereg no.Jllonetary
loss is, I conclude, sufficient reason justifying a delay in filing. It is
conceivable that Complainant feared that filing a claim could jeopardize his
·severance pay rights. Although Respondent claims prejudice, it did not show
that an attempt was made to preserve testimony when it became aware that the
claim was filed, or that it attempted to obtain the testimony of the former
employees by deposition.· Complainant cannot be blamed for the delay between
the time he filed with MSHA and MSHA's decision 16 months later.
3. The complaints which Complainant voiced to his superiors concerning
unsafe and unhealthful conditions under which he and his crew worked, such as
those described in findings of fact 3 through 7, constituted activity protected
under the Mine Safety Act. Any adverse action because of this protected
activity would violate section 105 of the Act.
4. Complainant left his employment with Respondent on March 26, 1982,
voluntarily. He was not discharged and the termination of his employment was
not related to any activity protected under the Mine Safety Act.

36

DISCUSSION
In Finding of Fact No. 12, I accepted the testimony of Robb to the effect
that the discipline imposed on Complainant at the March 25, 1980, meeting was
to place him on a form of probation. He was not discharged. ·Apparently
unwilling to accept the probationary status, he voluntarily resigned. The
discipline was imposed solely by Robb. It resulted.from Robb's evaluation .of
Complainant's work performance. Whether the evaluation was accurate or whether
it was fair is not a matter for me to decide. I accept the testimony of Robb
that Complainant made no safety related complaints to him and that he (Robb)
was not aware of any such complaints having been made to others. Therefore,
the discipline imposed by Robb, such as it was, was not related to activity
protected under the Act.
5. Since Complainant·failed to establish that he was discharged or
otherwise discriminated against in violation of section 105(c) of the Act, he
is not entitled to the relief sought in his complaint.
ORDER
On the basis of the above findings of fact and conclusions of law, the
complaint and this proceeding are DISMISSED.

J
· ·

Distribution:

"'ct/1,'1v2- e

. #18vvck 1r1-t''/(__

James A. Broderick
Administrative Law Judge

By certified mail

Grant L. Foutz, Esq., 409 South Second, P.O. Drawer 38, Gallup, NM 87301
Lindsay A. Lovejoy, Jr., Esq., Stephenson, Carpenter, Crout & Olmsted,
Post Office Box 669, Santa Fe, NM 87504-0669
M. Lea Brown~ield, Esq., United Nuclear Corporation, Post Office Box 2248,
Santa Fe, NM 87501

37

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

January 12, 1983

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

Civil Penalty Proceeding
Docket No. CENT 82-33-M
A.C. No. 29-00159-05018

v.

Tyrone Mine & Mill

PHELPS DODGE CORPORATION,
Respondent
DECISION
Appearances:

Marigny A. Lanier, Esq., Office of the
Solicitor, U. S. Department of Labor,
Dallas, Texas, for Petitioner, MSHA;
James G. Speer, Esq. and Stephen W.
Pogson, Esq., Evans, Kitchel & Jenckes,
P.C., Phoenix, Arizona, for Respondent.

Before:

Judge Merlin

This case is a petition for the assessment of a civil
penalty filed by the Secretary of Labor against Phelps Dodge
Corporation for an alleged violation of 30 C.F.R. § 55.9-2.
Section 55.9-2 provides as follows:
Equipment defects affecting s~fety shall be
corrected before the equipment is used.
The subject citation which is dated May 15, 1981 reads
as follows:
After talking with Kim Kerseyi Maintenance
Foreman, ~aye Staley, Driver, Milo Lambert,
Miners Representative and Dave Kuester,
Miners Representative, I have reason to
believe there was a safety defect.affecting
safety on the #214 Muck Truck involving the
front suspension in that prior to my arrival
on the property there had been much controversy

38

about the suspension. The drive[r] went so
far as to ask for a blue card in order to go
to the doctor if not taken off the truck or
the truck repaired.
On 5/8/81 a telephone
call was received by the MSHA Office in
Carlsbad, N.M. to voice their complaint.
They were advised to contact Milo Lambert or
Dave Kuester the Miners Representatives.
I
arrived on the property at approximately 1800
hours on the 13th of May 1981 on other business.
We returned the following morning .to complete
the other business and to serve other complaints.
When we arrived we noted. that the #214 Muck
Truck was in the truck.shop being repaired.
The morning of the 15th of May 1981 we served
the complaint on the #214 truck. We le·arned
that the ·#214 truck had been put into the
shop for a routine maintenance service on the
same morning that we were driving to Silver. City,
N.M. in that the company was aware that we
were on the way over, because of a phone call
to the company made by Sidney R. Kirk, Supervisory
Inspector MSHA concerning the investigation
of an accident.
The inspector who issued the citation testified that a
miner complained to MSHA that the suspension on the No. 214
haulage truck was bottoming out and represented a hazard to
safety (Tr. 10-11). As a result of this complaint the
inspector was told to visit the mine and check out the truck
(Tr. 10-11). At the hearing the inspector was confused and
inconsistent about when he visited the mine and talked to
the drivers (Tr. 11, 14, 17, 25, 27-28, 33-34, 41-47, 55).
After reviewing his testimony I find that on or about
May 15 during the day he visited the repair shop at the mine
and spoke to the repair shop foreman about the 214 truck
·
(Tr. 27-28, 34, 43). When the inspector arrived the front
suspension already had been removed and a new suspension had
been installed (Tr. 14, 73-74). The shop foreman complained
to the inspector about spending $6,000 to replace a front
suspension.that was still good but he said that the replacement was being done because it was called for under the
company's preventive maintenance schedule (Tr. 15-).6, 55-5-8).
The old suspension was in the back of the shop where the
inspector could have seen it but he did not (Tr. 191-192.,
194). The inspector admitted that he had no personal

39

knowledge of the condition of the removed suspension and
that he was not familiar with the company's preventive
maintenance schedule (Tr. 31-33, 48-50).
The inspector told
the operator.'s safety inspector that he would decide whether
or not to issue a citation after he had spoken to the
drivers of the 214 truck (Tr. 21-22, 25).
That evening the inspector spoke to several drivers of
the 214 truck including Kay Stailey, Pedro Mondragon,
K. W. Donaldson, Emory Baker, Juan Verdugo, and Ramon Nava
(Tr. 36-37, 45-46). According to the inspector they told
him that because of worn out suspensions the truck bottomed
out, was unstable and control of its steering could not be
maintained (Tr. 17-18, 36). They also advised the truck
rode rough and Ms. Stailey who told the inspector she drove
the truck on May &, said she had hurt her back because of
the bad suspension (Tr. 46-48). Based upon what the drivers
told him the inspector decided to issue a citation, wrote it
up 2 days later and then mailed it to the operator (Tr. 2022, 5.4). However, the inspector erroneously put down the
issuance date as the day he had spoken to the foreman and
the drivers (MSHA Exh. No. 1).
·Five of the drivers whp had operated the 214 truck
testified at the hearing. The first and most important was
Ms. Stailey. It was she who complained to MSHA that oh May 8
when driving the truck she injured her back due to the bad
suspension (Tr. 47-48, 85). She repeated these complaints
at the hearing, testifying that ·on May 8 the· truck drove
like a jackhamrrier due to bad suspension (Tr. 85-86, 92).
She also contended that the cab and back of the truck were
loose (Tr •. 86, 93). She said she had complained· three times
that night and finally because her back hurt she asked for a
blue card which would have enabled.her to go to the hospital
(Tr. 87-88). On cross examination Ms. Stailey agreed that
according to established procedures the drivers fill out a
checklist for each truck they drive (Tr.• 95).
If more than
one truck per shift is driven by a driver, the driver must
fill out a checklist for each truck (Tr. 128). The checklist
sets forth several items including suspension, with respect
to which the driver is supposed to report any problems or
deficiencies (Tr. 96, Optr's. Exh. Nos. 2-8). There is also
a place on the form for driver comments. The checklist
which Ms. Stailey filled out for May 8 indicates she drove
the 219 truck, ·not the 214 (Optr's. Exh. No. 2). Ms. Stailey
contended that she made her 9's like 4's but the operator
produced her checklists for the period April 1 through
May 16 (Tr. 103-104, Optr's. Exh. Nos. 2 and 3). It is clear

40

from an examination of these lists that Ms. Stailey does not
make her 9's like 4's and at the hearing MSHA did not produce
any evidence or even argue in support of Ms. Stailey's
contention.
I find that on May 8 Ms. Stailey drove the 219
truck.
I also find in accordance with the checklist that
the last day she drove the 214 truck was April 6 (Optr's.
Exh. Nos. 2 and 3). Ms. Stailey admitted that the April 6
checklist did not indicate any problem with the suspension
but she said she orally told her foreman the suspension was
bad (Tr. 109).
In addition, on cross examination Ms. Stailey admitted
that on May 4 she had an accident driving the 217 truck when
she ran into a berm (Tr. 109). She also admitted that on
May 5 she received a written warning from the operator for
her failure to report the accident and for damage to the 217
truck from the accident (Tr. 112). At first she denied
there was any damage, but subsequent.ly she acknowledged
there had been some to the truck's ladder (Tr. 110, 118, 121).
Finally, when asked whether ~he had visited a d6ctor on May 6
on her _own volition, Ms. Stailey first stated it was for
allergies but when confronted with the medical report of
that visit agreed it was for back pain (Tr. 112-114).
Based upon the foregoing I do not find Ms. Stailey a
credible witness in any respect.
I conclude she last drove
the 214 truck more than a month before she complained to
MSHA. Moreover, she complained to MSHA only a few days
after she had an accident with another truck, received a
warning from the operator and visited a doctor for back
pain. These circumstances demonstrate that her assertions
regarding the alleged lack of safety on the 214 truck due to
bad suspension cannot be accepted.
As already noted, four other drivers of the 214 truck
testified. Mr. Mondragon who according to the checklist
drove that truck only on April 5 and April 25, stated it
rode rough and fishtailed although he did not indicate this
on his checklist (Tr. 125-126, 131, Optr's.Exh. No. 4). He
said he orally told the dispatcher in the tower about the
rough riding and fishtailing and that the dispatcher was
supposed to tell the foreman (Tr. 132). However, he admitted
that management "chewed out" drivers who did not cpmplete
accurate lists (Tr. 134).

41

Similarly, Mr. Baker testified that when he drove the
214 truck, it rode rough but his checklist for May 3, the
only date he drove it after April 1, did not contain anything
about the suspension (Tr. 141, Optr's. Exh. No. 5). He said
it must have slipped his mind but alleged that he orally
told the dispatcher about the suspension (Tr. 147-148). I
conclude the weight to be accorded the allegations of these
two witnesses regarding the suspension on the 214 truck
is greatly diminished because they did not put anything on
their checklist although they knew this was required.
Moreover, these two drivers drove the 214 truck on few
occasions.
A third driver, Mr. Verdugo, did indicate a suspension
problem on his checklist for May 2 when he drove the 214
truck (Optr's. Exh. No. 7). However, he acknowledged he did
not drive the 214 truck very often since his assigned truck
was the 216 (Tr. 174). Even more importantly, Mr. Verdugo's
complaints regarding the rough riding of the 214 truck must
be viewed in light of the fact that he had a severe back
problem, was operated on for a ruptured disc on July 28,
1981 and was out of work for this condition from June 17,
1981 to October 7, 1981 and from November 7, 1981 to
January 4, 1982 (Tr. 183-184). Finally, Mr. Verdugo continued to complain about rough riding on the 214 truck after
the suspension had been replaced (Tr. 180-182). In light of
the foregoing circumstances, I do not find Mr .. verdugo's
testimony persuasive regarding alleged safety hazards and
the nature of the ride on the 214 truck.
The fourth driver who testified was Mr. Donaldson.
He
was assigned to the 220 truck but because he traded shifts
with a driver named Dave Brown, he drove the 214 truck
around the time Ms. Stailey made her complaint (Tr. 150151). Mr. Donaldson said that the 214 truck rode rough
compared to the other trucks but the only checklist he
completed for the 214 truck which mentioned the suspension
was dated May 12, 4 days after Ms. Stailey complained
(Tr. 151-152, Optr's. Exh. No. 6). Mr. Donaldson admitted
he did not always £ill out the lists accurately (Tr. 157).
He stated that he did not know for sure whether he had noted
the suspension as a problem on May 12 because Ms. Stailey
had spoken to him about her complaint, but he readily
admitted he wished to help her (Tr. 167, 171-172). Even
more importantly, Mr. Donaldson admitted that he did not
consider the 214 truck unsafe for him when he was driving it
(Tr. 171).
I find Mr. Donaldson's opinion regarding the
safety of the 214 truck which was given with candor to be
persuasive and I accept it.

42

The operator submitted copies of all checklists for the
214 truck from April 1 to May 13 (Optr's. Exh. Nos. 2-8).
Many items needing repair were noted on these lists but the
front suspension was identified as a problem only three
times. Even rough riding, without specifying the cause, was
noted only eight times (Optr's. Exh. Nos. 2-8).
Also the
drivers who testified did not use the 214 very often. The
checklists for the 214 truck reveal other drivers used that
vehicle with greater frequency than those who testified.
The operator's repair shop foreman, Mr. Kersey, testified that haulage trucks are given priority in maintenance
and repairs because they are essential to production (Tr.
66-67). Suspensions are changed on haulage trucks every
9,000 to 10,000 hours (Tr. 70, 201). On April 17 a work
order was issued to change the suspensions on the 214
because it was the truck whose suspensions had the most
hours (Tr. 68-70). On April 21 and May 2 the operator
received rebuilt suspensions which were installed on the 214
truck on May 13 (Tr. 78, 83). The foreman looked at the
suspensions before and after they were changed and he saw no
defects (Tr. 211). As already noted, the inspector did not
see them.
In addition, x-rays of the suspensions taken off
the 214 truck showed no cracks (Tr. 204). The foreman
stated that when the suspensions were removed, "donuts",
which are rubber cushions in the suspensions and which would
have disintegrated if there had been a bottoming out of the
truck, were found to be intact (Tr. 198, 204-205, 216). The
foreman further testified that the suspensions were being
replaced pursuant to the company's maintenance program and
he said that up to the time of the inspector's visit he did
not know of any miner compl.aint to· MSHA about the 214 truck
(Tr. 69-70, 203, 208-209). I find the foreman credible and
I accept his testimony.
I conclude therefore, that the
suspensions were being replaced pursuant to the regular
preventive maintenance program and I reject any suggestion
they were changed in order to avoid issuance of a citation
because a complaint had been made to MSHA.
I further conclude
that the suspensions were free from defect and that there
was no bottoming out on the 214 truck.
Mr. Chandler, the parts and service consultant for the
manufacturer of the 214 truck, testified that he had driven
every truck Phelps Dodge had and that trucks like the 214
tend to drive bumpy (Tr. 230). Both Mr. Kersey and
Mr. Chandler listed a number of factors which would cause a
rough riding truck including speed and road conditions
(Tr. 209, 230-231). Finally, the 214 truck as described by

43

Mr. Kersey and as shown by photographic evidence is a
massive off-the-highway vehicle designed for hauling heavy
loads over rough terrain (Tr. 194-196). Its enormous
dimensions are apparent when it is pictured next to an
ordinary sized pick-up truck (Optr's. Exh. No. 10).
Based upon all the evidence I conclude that there were
no defects in the suspension of the 214 which affected
safety. For reasons already noted, the principal complainant
upon whom MSHA relied is not credible.
But to the extent
that some of the other drivers believe the 214 was unsafe
_because of the suspension, I find more persuasive the contrary evidence of the operator which demonstrates that there
was nothing wrong with the suspensions and that they were
being replaced pursuant to routine maintenance procedures.
I already noted the opinion of one of the drivers,
Mr. Donaldson, that the 214 truck was not unsafe but only
rough riding and I rely also upon the infrequency with which
the checklist for the 214 identified suspension as a problem.
I recognize that under the Act miners are strongly
encouraged to participate in the preservation and maintenance
of health and safety in the mines. They are after all, the
ones whose lives are on the line.
But the positions miners
take and the complaints they make must be supportable and
prevail over contrary evidence produced by operators accused
of violations.
In this case MSHA failed to prove a violation.
The great weight of probative evidence favors the operator.
ORDER
Accordingly, it is ORDERED that Citation No. 173586
be Vacated and that the petition for the assessment of civil
penalty be DISMISSED.

Law Judge

44

Distribution:

Certified Mail.

Marigny A. Lanier, Esq., Office of the Solicitor, U. S.
Department of Labor, Suite 501, 555 Griffin Square,
Dallas, TX 75202
James G. Speer, Esq. and Stephen W. Pogson, Esq., Evans,
Kitchel & Jenckes, P.C., 363 North First Avenue,
Phoenix, AZ 85003

45

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

(703) 756-6210/11 /12

JAN 131983

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

Civil Penalty Proceedings
Docket No. PENN 82-177
A.O. No. 36-00970-03 120

v.

Maple Creek No. 1 Mine

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

Docket No. PENN 82-220
A.O. No. 36-03425-03104
Maple Creek No. 2 Mine

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

Contest of Citations
Docket ·No. PENN 82-73-R
Citation No. 9901282; 1/20/82

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

Maple Creek No. 1 Mine
Docket No. PENN 82-76-R
Citation No. 9901285; 1/22/82
Maple Creek No. 2 Mine

DECISION AND ORDER
These consolidated review-penalty cases are before me on
the parties' waiver of hearing and cross motions for summary
decision on stipulated facts.

The dispute centers on the

proper interpretation of the facts and applicable law.

The

core issues are:
..1..

Whe .. :her a sample o '.: respirable dust taken on
a single shift by a duly certified representative
of the Secretary (a coal mine inspector) is in
acccrd with the procedure prescribed by the statute.

46

2.

Whether a sample of respirable dust taken on
a single shift was, as a matter of scientific
fact, sufficient to determine the average concentration of respirable quartz present in
the atmosphere of the mechanized mining units
sampled.

3.

Whether the violations charged "could have
contributed to a significant and substantial"
mine health hazard.
Findings and Conclusions

The fundamental requirement of the respirable dust standard
is that the average concentration be continuously ~aintained at
or below 2 milligrams per cubic meter of air (2mg/m 3 ).
Section 202(a), 30 C.F.R. 70.100.

The two milligram standard

must be lowered, however, whenever the total respirable dust
mass in the mine atmosphere contains more than. 5% quartz.
Section 205, 30 C.F.R. 70.101.

Consequently, when sections

202(a) and 205 are read together the statutory respirabl~
coal mine dust standard is 2 milligrams (not to exceed 5%
quartz) per cubic meter of air.
When the presence of an excessive concentration of quartz
is detected, the operator is thereafter required to maintain
the respirable dust mass below an average concentration of
2 milligrams of air cubed.

The applicable standard is determined

by dividing the percentage of quartz into the number 10.
30 C.F.R. 70.101.

The formula for determining the applicable

respirable dust standard when quartz is present was prescribed
by the Secretary of Health Education and Welfare, now the
Secretary of Health and Human Services.

47

It was derived from

the Threshold Limit Values (TLV) first published for free
silica by the American Conference of Governmental Industrial
Hygienists in 1968.
In these cases, the percent of quartz present on the
mechanized mining units in question was 11% .. Therefore,
the average concentration of respirable dust in the mine
atmosphere associated with the t~o units had to be thereafter
maintained at 0.9 milligrams of respirable dust· per cubic
meter of air (10/11 equals 0.9 mg/m3).
I

Samples for determining the percent of concentration of
quartz in the respirable dust mass present in the mine atmosphere
are taken by the Secretary of Labor through duly certified coal
mine inspectors.

Such single shift samples are not used to
/

.....

.,,,..,

determine compliance with the mine dust standard in effect
at the time the sample is taken.

The percent of quartz is

merely used to set the standard for future sampling.

But

if the percent of quartz in the sample analyzed is more than
S the Secretary will give the operator notice of a lowered
standard which will thereafter be used to establish compliance.
or noncompliance on the basis of averaging multi-shift samples
taken by the operator during his next bi-monthly samplin~ period.
30 C.F.R. 70.201, 20·7.
The operator says -this procedure is contrary to the Act
which, it contends, requires all respirable dust samples be
taken by the operator.

MSHA, the operator claims can only

/

48

take dust samples for the purpose of checking "on the accuracy
of the operator's sampling program".

For this reason, the

operator asserts the respirable·dust samples taken by certified
persons who are not employed by the operator are not samples
that can be used to lower the 2 m.illigram standard.
I find the contention without merit.
Section 202(g) specifically authorizes the Secretary of
Labor or his delegate to "cause to be made such frequent spot
inspections as he deems appropriate of the active workings of
coal mines for the purpose of obtaining compliance with {the
respirable dust standards? of {Title I!?.
Coal Act, 1124 (1970).

Legislative History,

This authority is complemented by that

found in section 104(f) which sanctions use of "samples taken
during an inspection by an authorized representative of the
Secretary" to determine whether the "applicable limit -on···the
concentration of respirable dust required to be maintained
under this Act is exceeded'', and, if so, for

issuanc~

of a

"ci ta ti on fixing a reasonable time for aba temenL"
The broad underlying authority, of course, is section
103(a)(l) and (4) which authorize inspections, and therefore
sampling, to obtain "information relating to health conditions
and the causes of diseases" and to determine "whether there
is compliance with the mandatory health standards . . . or
other requirements of this Act".

The cumulative import of

this authority provides compelling support for the view that
Congress intended the Secretary have power, independent of

49

the

operate~,

to police compliance with the quartz limi--

tation mandated by section 205. 1/
II
Under section 205 of the Coal Act the Secretaries of
Interior and of Health, Education and Welfare were delgated
authority to develop and promulgate a formula that would permit
a reduction in the applicable respirable dust standard whenever
the quartz content of respirable dust in the atmosphere
exceeded 5 percent. '!:_/

The formula, which issued in March 1971,

30 C.F.R. 70.101, required that whenever_ the "concentration of
respirable dust in the mine atmosphere" containe.d "more than
5 percent quartz" the applicable respirable dust standard
for-that working place should be reduced by an amount computed
"by dividing the percent of quartz into the number 10". 3/
1/ The operator has withdrawn its improvident assertion that as
a "practical matter" the trial judge should take notice of the
fact that the integrity of the entire sampling program may be
jeopardized by allowing federal coal mine inspectors to take
samples. Counsel for the operator admit they have no evidence
to support such inflammatory assertions.
2/ Section 205 constitutes a legislativ,~ recognition of the fact
that epidemiological studies show that the different components
of inhaled dust such as quartz and coal dust as well as its total
atmospheric concentration or density are factors which affect the
formation of fibrotic lung tissue and the development of
pulmonary massive fibrosis.
3/ Quartz (crystalline silicon dioxide) is classified as a
ribrogenic dust that causes scar tissue (fibrosis) to be formed
in the lungs when inhaled in excessive amounts. In 1968, the
American Conference of Governmental I~dustrial Hygienists established a Threshold Limit Value (TLV) rif 100 micrograms (.1 milligrams) per cubic meter of air over an eight hour period. This
(footnote 3 continued on page 6)

50

For many years the threshold limits for dust containing
quartz have been based on the concept that the magnitude of
the toxicity of the dust is proportional to the concentration
of quartz in the dust.
it was

determine~

Based on studies done in 1929 and 1935,

the toxicity limit (TLV) for quartz dust

was 0.1 milligrams per cubic meter of air..

The formula

developed by the National Institute for Occupational Safety and
Health (NIOSH) for applying this limit was: TLV equals 10
divided by the percent of respirab1e quartz found in a sample
of respirable dust. 4/
Thus, if the quartz component of the average concentration
of respirable. dust during a single shift is 5 percent of a
2 milligram mass, the concentration of quartz is 100 micrograms
(.1 milligrams) per cubic meter of air and no reduction in the

--

-·

-··

total concentration of respirable dust (2mg/m3) is mandated.
(10/5 equals 2).

On the other hand, if the respirable mass

standard was 3 milligrams of air cubed, the 5 percent limit would
still require it be lowered to 2 (10/5 equals 2) if the
quartz content exceeded 5 percent.
is the airborne concentration of quartz to which it is believed
most workers, including miners, may be repeatedly .exposed day
after day without adverse effect. NIOSH has recommended that
the concentration level be reduced to SO micrograms (.05 milligrams) but thus far MSHA has declined to adopt this as the basis
for its' formula for reducing the applicable respi rable dust
standard. 45 F.R. 23995 (1980).
4/ Documentation of the Threshold Limit Values for Airborne
Contaminants, ACGIH, 1981 Supplement 364-365. This report
notes that because the "percent quartz in respirable dust is
often quite different from the percentage in ... total airborne
dust, ... the percent quartz for use in the respirable-mass TLV
formula must be determined in a sample of respirable dust. Id.

51

In the instant case, it was found that the quartz
component had increased to a concentration level of 11 percent.
Consequently, the miners were being exposed to approximaiely
190 micrograms of concentrated quartz dust which was almost
twice the permis~ible dosage-exposure for each shift.

The

record shows this exposure which began some time in September 1981
continued until abated in January 1982.
The quartz standard issued in March 1971 and was reissued
without substantive change in April 1980.

45 F.R. 23995. 5/

From the inception of the enforcement program to February 1981,
the procedure for evaluation of respirable quartz concentrations
was known as the Standard Method A7, or KBr (Potassium bromide)
method.

To perform the necessary chemical analysis and

infrared spectrophotography a sample of respirable dust
weighing 1 to 4 milligrams was !'equired.

Because samples·

collected during a mine health inspection usually contained
less than this amount it was often necessary to combine from
10 to 30 samples ta make a composite sample of 1 to 4 milligrams.
The composite sample was then ash~d, combined with potassium
promide, pelletized and analyzed for quartz content by making
an infrared spectrophotograph of the absorbance traces for
crystalline silicon dioxide.
5/ Apparently through inadvertance the phrase "concentration
of" was deleted before the words "respirable dust" in the
rule as reissued. Since no notice was given of any proposal
to change the statutory definition found in section 202(e),
it seems obvious the Secretaries did not intend to change
the "average concentration" standard.

52

Collecting and making composite samples was not only
time consuming but also severely limited the number of mines
on w~ich quartz determination could be made.

For example,

in 1980 approximately 59,000 samples were collected and
submitted for quartz analysis.

From these, only 1,500 quartz

analyses could be performed.
To increase the number of samples available for testing,
MSHA modified its analytical method in February 1981.

The

new method permits a quartz content determination to 'be made
on a single sample containing as little as 0.5 milligrams
of respirable mine dust.

It was first developed by the

National Institute of Occupational Safety and Health (NIOSH)
in 1977.
Under· the new method, the sample is ashed in a low-tempera-

ture, radio-frequency (RF) asher, the ashed residue is combined
with potassium bromide, pelletized and analyzed for quartz using
infrared spectrophotometry.

Use of the RF asher affords the

advantage of being able to make a quartz analysis of a sample
containing as little as 0.5 milligrams of respirable mine dust.
The new method, which is capable of detecting about one percent
quartz in an ashed sample weighing 0.5 milligrams is known as
the Single Sample, Low Temperature Ash (LTA) method of
quantifying the quartz in a single valid sample of respirable
mine dust.

Mine Safety and Health Administration's Procedure

for Determining Quartz Content of Respirable Coal' Mine Dust
(Unpublished 1982).

53

Equivalency between the "old" and the "new" methods was
demonstrated by analyzing replicate samples of respirable
dust using both methods and comparing the analytical results.
This showed that quartz determinations with the "new" method
were within app~oximately 1 percent of the determinations
obtained with the "old" method (i.e., for a determination of
8 percent with the "old" method, the.determination with the
"new" method would be 7, 8 or 9 percent).

In addi t.ion, a number

of single samples were analyzed to quantify the intersample
variability of the "new" method.

This showed the coefficient

of variability was 17 percent as compared to the "old" method
which was 10.8 percent.

The difference in variability was

of no practical significance since the results of quartz
determinations are truncated and reported as whole percentages,
that is, an analysis that results in a determination of 5.9
percent quartz is reported as 5 percent.
The variability of disparate samples is admittidly based
on a limited amount of data.

Samples to determine the day-to-day

or multi-shift variability were collected from five mines and
17 sections.

From a quantitative standpoint, 80 percent of

the time the average standard deviation about the mean,
determined from at least five samples, was 2 percent.

For single

shift samples, i.e., those collected from the same face on
the same day, the variability was within a range of plus or
minus 1 percent.

The evidence shows, and the operator does not

dispute, that the variability between and among the analyses

54

of single and multi-shift samples of respirable mine dust
for quartz c9ntent is relatively low.
The operator claims all

thi~

Ibid.

is irrelevant because,

the single sample method fails to comply with the requirement
that the quartz determination be based on averaging five
samples of respirable dust.

30 C.F.R. 207.

The dispositive issue, therefore, is whether the limit
on respirable quartz dust can be enforced on the basis of a
single shift gravimetric sample of the atmosphere of the
mechanized mining units cited or must be a composite of the
five multi-shift samples taken to determine compliance with
the total respirable mine dust concentration.
Support for the operator's position is found, it is claimed,
in MSHA's determination that "a single-shift respirable dust
sample should not be relied upon for compliance determinations
when the respirable dust concentration being measured" is near
2 milligrams.

45 F.R. 23997 (1980).

Pointing out that each

of the samples in question was less than 2 milligrams, the
operator argues the sampling procedure followed to determine
quartz content was not a valid statistical technique because
it violated the long-established re~uirement for multiple
sample averaging.

30 C.F.R. 207.

The Secretary's answer is that the statute does not
mandate multi··sample averaging to determine the concentration
of respirable q11artz dust.

Section 202(f)(2).

MSHA further

claims that all the regulation requires is that enforcement

55

of a loweied standard be based on operator samples collected
on five consecutive production shifts or five production shifts
worked on consecutive days.

30 C.F.R. 207.

Neither Congress,

nor the Secretary, it is argued ever intended the pre-compliance
quartz sample, i.e., the sample used to establish the lowered
dust standard, be derived from a statistically valid sample
of the average concentration of the total airborne respirable
dust to which the miners were exposed.

The Secretary carries

his burden, it is claimed, if he shows persuasively that,
after applying valid statistical techniques, a single shift
sample of respirable mine dust pictures, with scientific
accuracy, the concentration of respirable quartz dust in
the atmosphere during the shift on which the sample was

take~.

Since a single shift sample of each of the continuous
miner operators (high risk occupations) cited skowed ·a qy-artz
concentration of 11 percent, the Secretary claims he had a nondiscretionary duty to lower the total respirable dust standard
to .9 milligrams of air cubed and thereafter to enforce
that standard on the basis of multi-sample averaged "compliance"
samples. §_/
6/ While the Secretary claims s·ingle shift samples are never
used to find a violation, one of the "Enforcement Examples"
given in the directive to inspectors states that where an
anaiysis of a single sample from an area subject to a lowered
standard has generated an even higher concentration or
percentage of quartz, "the inspector should issue a citation
upon receipt of the quartz analysis because there was a
violation at the time the sample was collected". Coal Mine
Safety &Health Memorandum No. 81-183-H, p. 8.

56

Resolution of the parties' dispute requires an analysis
and interpretation of sections 202(e), 202(f), and 205 of the
Mine Safety Law.
Section 205 provides:
In coal mining operations where the concentration
of respirable dust in the mine atmosphere of any
working place contains more than S percent quartz,
the Secretary of Health, Education and Welfare shall
prescribe an appropriate formula for determining the
applicable respirable dust standard under this title
for such working place and the Secretary /of Labor?
shall apply such formula in carrying out nis duties
under this title.
Section 202(e) provides:
References to concentrations of respirable dust in
this title mean the average concentration of respirable
dust measured with a device approved by the Secretary
and the Secretary of Health, Education and Welfare.
Section 202(f) provides:
For the purpose o:f this title, the term "average _.coµcentra tion" means a determination which accurately
represents the atmospheric conditions with regard to
respirable dust to which each miner in the active
workings of a mine is exposed (1) as measured during
the 18 month period following the date of enactment
of this Act, over a number of continuous production
shifts to be determined by the /Secretaries/, and (2)
as measured thereafter, over a single shift only, unless
/the Secretaries/ find, in accordance with the provisions of sect1on 101 of this Act, that such single
shift measurements will not, after applying valid
statistical techniques, to such measurement, accurately
represent such atmospheric conditions during such
shift.
The legislative history of section 202(f) shows there
was a sharp disagreement between the Se·nate and House over
the most reliable method for sampling atmospheric conditions
to determine the "average concentration" of respirable dust.

The Senate bill mandated single shift sampling and prohibited
the averaging of dust measurements over several shifts.

As

the operator points out, however, Congressmen representing
the operators' interests succeeded in persuading the House
to adopt an amendment that would have required multi-shift
sampling to determine the "average concentration".

The

matter was finally resolved in the Conference Committee.

Its

report states:
The substitute adopted by the conference requires
the operator to maintain continuously the average
concentration of respirable dust in the mine
atmosphere during each shift to which each miner
is exposed at or below the established maximum
standard or the permitted maximum standard. It
also provides that the term "average concentration"
means that for a maximum period of 18 months after
enactment, measurements of a minimum number of
the same production shifts in consecutive order
are authorized to obtain a statistically valid
sample. At the end of this 18-month period, it
requires that the measurements be over one/production shift only, unless the Secretary and the
Secretary of Health, Education and Welfare find,
in accordance with the standard setting provisions
of section 101, that single-shift measurements
will not accurately represent the atmosph~ric
conditions during the measured shift to which the
miner is continuously exposed. H. Rpt. 91-761,
9lst Cong., 1st Sess.; 75; Legislative History
Coal Act 1037 (1970).
From this-, it is clear that the legislativi preference is
for single shift sampling and that multi-shift averaging
is the exception, not the rule.

The operator, in fact,

concedes that "the Secretaries have never expressly determined
that a single shift sample will not accurately represent
[the average concentration of respirable quartz dust7 after

58

applying valid statistical techniques''.
have

determi~ed

All the Secretaries

is that application of valid statistical

techniques mandates continued use of the exceptional method,
i.e., multi-sample averaging as the basis for the issuance
of citations to enforce a lowered standard.

45 F.R. 23997.

I find that as a matter of law, section 202(f) of the
Act plainly authorizes use of single shift samples as the
basis for determining the concentration of quartz and that
the best available scientific evidence supports use· of such
a procedure.
The operator has chosen not to challenge the evidence
adduced by the Secretary to show that,. after applying valid
statistical techniques, a single shift sample of respirable
mine dust can be analyzed by a method which accurately measures
the concentration of r~spirable quartz dust in the at~6sphere
during that shift. 7/

Instead it has generally cited studies

relating to the validity of gravimetric measurements of
respirable coal mine dust masses.
There is, of course, no dispute about the fact that
personal gravimetric samplers were used to collect the respirable·
mine dust in question.

Furthermore, the relevant literature

shows that true dust concentrations in coal mines vary from
7/ The operator's claim that the standard as applied arbitrarily
reduces the total dust level no matter how insignificant the
amount of quartz present is demonstrably incorrect. (Exh. 2).
The operator makes no claim that exposure to more than 100
micrograms of respirable quartz dust for eight hours a day, dayafter-day, is a biologically benign atmospheric condition.
The
purpose of section 205 is to insure that concentrations of
quartz in the workplace atmosrlieTe will be maintained at
or below 100 micrograms per cubic meter of air.

59

shift to shift with a coefficient of variation between 30
and 70 percent.

Indeed, it is not unusual to find that the

dust concentration in the atmosphere of a continuous miner
operator has a standard deviation of 70 percent.

IC 8753,

Respirable Dust Measurement 13-14 (1977).
But, says the Secretary, all this is irrelevant because
after applying valid statistical techniques to the infrared
spectroscopy method of analyzing single shift samples for
quartz it was found that the variability between and among
single and multiple samples was relatively low, plus or minus
1 or 2 percent.

Indeed, this conclusion seems to be

corroborated by a study done by the operator's own industrial
hygienists in 1970 or 1971.

This study found it was possible

using an x-ray diffraction technique to "estimate the quartz
and calcite on individual filters where the dust loading
was 0.20 mg."

The same report recommended that infrared

techniques being used in England and Germany be carefully
studied to "determine whether this analytical procedure can
be applied to individual respirable dust samples".

MSHA

claims, and I find its evidence supports the conclusion,
that by 1981 the infrared technique had been perfected to
the point where it could be applied to samples with as little
as 0.5 milligrams of dust with

~he

reproductibility error

(coefficient of variation) between single and multiple samples
so small as ·to be negligible.

60

From the standpoint of scientific reliability, it makes
no difference whether the quartz analysis is made from a
composite of the operator's five samples or an inspector's
single sample because only 0.5 milligrams of dust is analyzed
in either instance to determine the quartz content.

As a

practical matter, of course, it makes quite a difference
because of the time and effort required to work with
five rather than one sample.

~/

The percent quartz content, as previously indicated, is
not used as a standard but only as a factor in the formula
for reducing the total respirable dust mass.

The object is

to keep the quartz exposure within the permissible limit.
The fact that a 7% quartz content of a .7 milligram sample
might be used to reduce the 2 milligram standard to 1.4
milligrams does not mean that a 49 microgram standard for
quartz is being enforced.

A simple calculation shows the

quartz content of the .7 mg sample would have to reach 14%
before. it would equal 100 micrograms (.7 mg equals 700 ug X
14% equals 98 ug).

The formula, on the other hand, is designed

to ensure that the quartz content of the reduced standard
7

(mass) does not exceed 100 micrograms or 0.1 mg quartz/m·'
(1.4 mg/m 3 X 7% equals 0.1 mg/m 3 quartz).

Obviously, if

the operator is achieving a .7 mg/m3 concentration of respirable
dust he will have no difficulty in complying with the lowered
1.4 mg standard.

8/ It is estimated that the use of the single sample procedure
will result in "an annual decrease of about 2 inspector years
in sampling''. CHS&H Memo 81-lb3 tt.

61

Accordingly, I conclude that the Secretary has carried
his burden of showing that the single shift samples of respirable
mine dust in question provided scientifically valid samples
(representative samples) of the average concentration of quartz
dust in the relevant atmosphere during the shifts in question.
The operator's contest of the validity of the pre-compliance
samples, i.e., those used-to lower the total dust standard
is, therefore, denied.
III
The operator claims the violations in question were not
"significant and substantial" because there is no probative
evidence that exposure of miners to free silica (quartz dust)
generated "naturally in mining" is a significant health hazard.
The Secretary responded with a report and supporting documentation
from the National Institute for Occupational Safety and rrealth
(NIOSH).

This report concluded that an "intermittant or

continuous" exposure to more than 100 micrograms per cubic
meter of respirable quartz dust, regardless of the size of
the total respirable dust mass, "const.i tutes a serious and
substantial hazard to the health of miners." (Exhibit 3). 9/
9/ As the Goldberg affidavit and the NIOSH report point out,
the operator has failed to understand that the threshold
limit of 100 micrograms per cubic meter of air for quartz
is not a standard but the resultant of the formula adopted
to reduce the 2 milligram standard when the free silica content
of an analyzed sample exceeds 5 percent.
The 100 microgram
limit is a constant that does not vary with the size of the
sample analyzed and is used solely as a regulator of the
permissible respirable dust mass of 2 milligrams.
The purpose
is to insure that the concentration of respirable quartz
in the atmosphere is maintained at or below 100 micrograms.
(footnote 9 continued on page 18)
•

62

Based Qn the expert opinion expressed in the NIOSH report
and the accompanying medical literature, the Secretary
contends that exposure to high levels of silica dust (100
plus micrograms) in the presence of coal dust rb3Ults in a
synergistic effect that exacerabates the health risk involved
in exposure to respirable mine dust.

The Secretary argues

Congress intended a finding of "significant and substantial"
be made whenever an "incipient" health hazard can, on the basis
of the best available evidence, be said to pose a significant
risk of material health impairment over the long run.

Finally,

it is claimed that a finding of "significant and substantial"
is warran.ted wherever the fraction of free silica in the mine
For example, 1£ a single analyzed sample weighs .5 milligrams
and the free silica content is 6 percent, the 2 milligram
standard will be rerluced to 1.6 (10/6 equals 1.6 mg).
Thereafter compliance is measured against the reduced-~e~pirable
dust standard of 1.6 mg, not the threshold limit of 100
micrograms for quartz. The fact that the quartz content of
the sample analyzed weighed only 25 micrograms (.5 mg equals
500 ug x 5% equals 25 ug) is irrelevant and does not mean
that a 25 ug "standard" is being enforced when the limit is
100 ug. It simply means that since the compliance or enforcement
standard is 1.6 mg the actual amount of quartz in the environment may regress to 100 micrograms or 20 percent of the
total mass (.5 mg equals 500 ug x 20% equals 100 ug) before
the reduced standard {1.6 mg) would be violated. In the
cases at hand, it appears the analyzed samples were 1.7
milligrams and contained 11 percent quartz. This means the
analyzed sample had 190 micrograms of quartz ((.11) (1.7)) equals
0.19 mg per meter cubed or 190 ug per meter cubea) . . The
enforcement or compliance samples averaged 1.3 mg and 1 mg
respectively. This means that in the case of the 1.3 mg
sample the quartz content may have been approximately 15
percent (1.3 mg/.19 mg equals 0.146%) and in the case of the
1 mg sample approximately 19 percent (1 mg/.19 equals 19%).

63
.id

atmosphere exceeds 5 percent of the total respirable dust
mass ·because such a condition can, standing alone, contribute
to a serious health hazard, namely silicosis.
As noted, the NIOSH report found that "intermittant
or continuous"· exposure to any concentration of quartz dust
in excess of theestablished hygientically safe level of
100 micrograms per meter of air cubed and more particularly
a concentration of 11 percent (190 micrograms) in a respirable
dust mass of 1.7 milligrams ''constitutes a serious and substantial
hazard to the health of a worker". _!_Q_/ (Exhibit 3).

The

operator offered no fact-specific rebuttal to this evidence.
Thus, the matter is before me on the operator's claim that
the Secretary's evidence is, as a matter of law, insufficient
to establish the violations charged were "of such nature as
could have significantly and· substantially contribute-cl tcr the
cause and effect" of a mine health hazard .

.!...!/ Section 104(e).

lO/ 1. 7 milligrams was apparently the weight ·of the single
samples analyzed for quartz (11% x 1.7 mg equals .19 mg or
190 ug). Inasmuch as the compliance samples averaged 1.3
and 1 milliira~s, respectively, it appears that the concentrations of q~artz involved in the violations charged ranged from
190 to 200 micrograms. This was substantially in excess of the
permissible exposure limit value of 100 micrograms.
11/ Although the matters are before me on the parties' cross
motions .for summary decision, each has the burden of showing
the indisputability of the facts which warrant judgment in
his favor. Moore's Federal Practice Par. 56.13. The Secretary's
evidence clearly establishes that the 100 plus microgram limit
is indisputably accepted by the scientific and medical community
as the safe limit for exposure to free silica. The operator
does not challenge this but claims such an exposure does not
constitute a."significant and substantial" health hazard
(footnote 11 continued on page 20)

The NIOSH report is probative of the realtionship
between quartz exposure and the severity of the resultant
health hazard.

Well-reasoned expert testimony and opinion

based on what is known and uncontradicted may in and of itself
be substantial evidence when first-hand evidence on the
question is unavailable.

Industrial Union v. American Petroleum

Institute, 448 U.S. 607, 707 (1980), Dissenting Opinion;
Richardson v. Parales, 402 U.S. 389 (1971).

I

no~e

that

while the NIOSH report and its supporting documentation are
not part of the stipulated record the operator, in the face
of that report, continues to stand on its cross motion and
has offered no evidence to contradict the report.

With the

matter in this posture, I am free to infer there is no
evidence other than the pleadings and supporting instruments
because there is no evidence that the inhalation of quartz
dust generated naturally increases the risk of developing
silicosis or black lung in either the short or long term.
This bald assertion is unsupported by any medical or scientific
evidence. It apparently depends upon a claim that an examination of studies conducted in Great Britain concerning the
relationship between quartz dust and the development of
coal-workers' pneumonocoiosis shows there is no correlation.
These studies are unidentified and were not submitted for
the record. The NIOSH report, on the other hand, deals specifically
with this issue and concludes the weight of reputable scientific
and medical thought is that "a key factor in the development'
of silicosis is the duration of exposure multiplied by dust
concentration".
(Exhibit 3, Para. 8). The studies submitted
by NIOSH, and not disputed by the operator, also show that
quartz must be regarded as a possible cause of black lung,
"especially where mixed dust exposure may be low, but the
proportion of quartz high".
(Exhibit 3, Refer;ence 7, p. 1275;
Reference 11, pp. 123-125, Reference 14, p. 191).

65

to be considered, and so need only examine those materials
to ascertain whether an issue of material fact exists.

S.E.C.

v. Am Commodity Exch., 546 F.Zd 1361, 1365-66 (10th Cir. 1976);
Manetas v. International Petroleum Carriers, Inc., 541 F.Zd 408,
414 (3d Cir. 1976); Commission Rule 64.

My review of the

parties materials leads me to conclude there is no triable
issue of fact with respect to the charge that the violations
cited were "significant and substantial".
I deal first with the Secretary's claim that any concentration of quartz in excess of the 100 micrograms allowed
by section 205, 30 C.F.R. 70.101, is per se a significant
and substantial violation.
Silicosis is a condition of massive fibrosis of the lungs
marked by shortness of breath.

It results from inhalation
_..,.

-

of silica dust, is dose and time dependent and medically
incurable.

.....

Only technical preventive measures in the workplace

can control or eliminate the problem.

A description of

silicosis, extracted from a primer prepared for workers,
graphically illustrates the disease's progress.
The main symptom is shortness of breath, at first
occurring only during physical activity, but soon
appearing after less and less exertion, until
eventually the victim is short of breath even at
rest. This is caused by many small round lung
scars that dev~lop from irritation by silica
dust. These hard inelastic scars -- just like
those on skin that result ·from an operation -make the lungs stiff, so that it takes more
work to inflate them with air. The scars also
thicke~ the walls of the air sacs, blocking
transfer of oxygen into the blood; tired blood is

66

a characteristic finding in silicosis. The
area surrounding each scar becomes stretched and
distorted, breaking down the normally tiny, delicate air sacs so that they form larger thicker-walled
sacs, a form of localized emphysema. Further
reaction to the silica may cause scars to join
into larger scars; some may occupy the entire
lung. This process, progressive massive fibrosis,
is frequently accompanied by increasing susceptibility
to tubercuolsis and other infections. Finally, the
heart, which must pump blood through these stiff,
inelastic lungs, becomes weakened and enlarged and
fails to pump effectively. _!l/
Silicosis is a "continuum" or progres·sive disease.

The

amount of silica estimated to be inhaled in 50% of those who
die from silicosis is 5 grams.

(Exhibit 3, Reference 5).

This is about one-half a teaspoon.

While there is some

uncertainty over the manner in which the disease progresses
from its least serious to its disabling stage, it is certain
that prolonged exposure above safe limits contributes to the
progression.

It also appears that a severe stage of the

disease may result from brief as ~ell as intermittant or
interrupted exposure.

(Exhibit 3, References 5, 6).

In its

most serious form, silicosis is a chronic and irreversible
obstructive pulmonary disease that like black lung or in
association with black lung can create an additional strain
_!l/ Stellman and Daum, Work is Dangerous to Your Health, Vintage
Books, New York (1973), 168. Only dust containing free (uncombined)
silica can cause silicosis. The disease is one of the
pneumon6conioses, a group of lung diseases which result from
inhalation of excessive amounts of respirable dust in industrial
environments such as mining, quarrying, foundrys and textile
mills. See, American Textile Mfgrs. Inst. v. Donovan, 452
u·. s. 420 (1981).
--

67

on cardiovascular functions and can contribute to death from
heart failure.

While there is some disagreement in the

scientific and medical community over the true role of quartz
in the development of black lung~ the present consensus
in reputable medical and scientific thinking is that quartz
dust exposure in excess_ of the established and accepted
threshold limit of 0.1 milligrams per cubic meter of air
may be an important factor in the development and rapid
progression of coalworkers' pneumonoconiosis.

In fact, there

is no discernable disagreement over the fact that exposure
of miners to high concentrations of free silica (in excess
·of 5%) may, standing alone, or when mixed with coal mine
dust trigger over the short or long run, depending on individual
susceptibility, adverse pathogenic or fibrogenic reactions in
lung tissue. 11_/
13/ Contrary to the operator's contention, the statute does not
restrain MSHA from acting to prevent irreversible health damage
until miners actually suffer the early symptoms of silicosis or
black lung. Instead the law is a ma~date to reduce the risk of
that irreversible damage--especially for those miners who have
regular exposure to the causal agent, respirable mine dust. In
the present case, MSHA and NIOSH have adequately documented the
risk of such damage attributable to continued exposure to quartz
dust. The medical evidence ~hows that the acute symptoms of
silicosis alone or in conjunction with black lung (anthracosis)
weaken the miner's pulmonary system and increase his or her
~usceptibility to the adverse effects of subsequent pathogenic
exposure. See sections 106(a)(6), (7), 202, 205 and relevant
legislative history together with-.E:xhibit 3 and its attached
References and Bibliography. For these reasons, I hold MSHA
is authorized to categorize as significant and substantial
any level of exposure to quartz dust that passes the threshold
of the medically permissible exposure level of 100 micrograms.

68

IV
A serie~ of studies of mining and other dusty occupation~
in the second decade of the twentieth century revealed that
silicosis was a ~evere health problem in the United States.
In 1933, the United Mine Workers of America and the Pennsylvania
Department of Labor and Industry surveyed pulmonary disease
among anthracite miners. 14/

This study confirmed that the

threshold or permissible quartz

con~entration

of a respirable

dust mass should not exceed 5 percent.
In 1950 the U. S. Department of Interior, Bureau of Mines,
reviewed the literature on dusts, with emphasis on the relationship to dust diseases.

Efforts to control industrial dusts

have historically relied on the medicolegal principle of dose
response.

This principle holds there is a systematic relationship

between the severity of a· response to an industrial dust
hazard such as quartz and the degree of exposure.

This in

turn is based on the concept that the magnitude of toxicity
of quartz dust is proportional to its concentration in the
total respirable coal mine dust mass.

Thus, as the level of

exposure decreases there is a decrease in the risk of injury,
and the risk becomes negligible when exposure falls below
certain tolerable (threshold or permissible) levels or
concentrations.

(Exhibit 3, Reference 3).

14/ Sayers, Anthraco-S1licosis Among Hard Coal Miners, U.S.
Public Health Service Bulletin #221 (Dec. 1935).

69

.Utilizing this principle and concept, the American
Conference of Governmental Industrial Hygienists (ACGIH)
adopted a formula known as the Threshold Limit Value~Time
Weighted Average (TLV-TWA) respirable-mass formula.

Under

this formula as the percent of quartz increases the allowable
total respirable coal mine dust mass is decreased. 12._/

This

is the type of formula which Congress had in mind in enacting
section 205 and from which the Secretary of HEW derived the
formula promulgated in 30 C.F.R. 70.101.
(1977).

42 P.R. 59294

It is specifically designed to accommodate the 2

milligram limit on the total respirable dust mass in surface
and underground coal mines.
NIOSH and the ACGIH continuously review and monitor
the toxicity of airborne cont.aminants to determine the safe
concentrations to which most workers can be exposed with.out
endangering health.

TLV-TWA's and NIOSH's criteria papers

(Exhibit 3, Reference 8) are based on the best available
evidence from industrial

~xperience,

from experimental human

and animal studies, and, when possible, from a combination
of the three . .!!_/

The medical and scientific basis for the

15/ Documentation of Threshold Limit Values, (ACGIH, 4th ed.)
364-365 (1981). The formula was first adopted in 1968 based
on work done by Ayer. See, Ayer, H.E., The proposed ACGHI
mass limits for quartz: Review and Evaluation. Am. Ind.
Hyg. Assoc. J. 1968; 29:336-342; Id. 30:117 (1969).
16/ TLV's Threshold Limit Values for Chemical Substances and
Pliysical Agents in_ the Workroom Environment (1982), at 2.

70

quartz limit is carefully documented in the ACGIH's publication entitleQ. "Documentation of Threshold Limit Values".
(Exhibit

3~

Reference 8).

Since the TLV respirable mass

formula for quartz dust has been incorporated in an improved
health standard, 30 C.F.R. 70.101, it has the force and effect
of law.
Applying .the formula to the cases in question, the
Secretary reduced the applicable 2 milligram standard to .9
milligrams.

Thereafter compliance or enforcement sampling

showed the lowered standard had been violated.
does not dispute this.

The operator

It is clear that the violations

charged did, in fact occur.
Further a preponderance of the evidence shows that for
many years the medical and scientific com~unities have accepted
as established fact that the exposure of miners to free silica
in concentrations that exceed 5 percent of the total respirable
dust mass in their environment poses a significant risk to
their short and long term health.~/ (Exhibits 2, 3).
It is obvious that in enacting section 205 Congress made
a conscious decision to call upon the expertise of NIOSH
and MSHA and to delegate to them the authority to make a
policy determination that would strike a balance between what
is and is not the safe upper limit of quartz exposure.
I7Tin fact, NIOSH has urged that the limit be reduced to 2.5
percent or 50 micr0grams. 42 F. R. 23995 (1980).

71

They have done that by promulgating the TLV-TWA respirable
mass formula for use wherever the free silica in the atmosphere
of a single production shift exceeds 5 percent of the total
respirable dust mass.

All of this was done with prudence

and deliberation in a lengthy public rulemaking proceeding.
The operator's suggestion that the formula was plucked out of
thin air and arbitrarily applied is clearly mistaken.
I find there is an indisputable correlation between
the level and duration of exposure of the respiratory tract
to free silica and the development of fibrogenic tissue in
the lungs.

Where, as here, the exposure substantially exceeded

the threshold limit for an extended peri6d of time all doubts
as to the significance of the risk of a material health impairment must be resolved in favor of the miners. 18/
18/ When Congress enacted section 10l(a)(6) of the Act in
1977, it recognized that the validity and enforceability
of health standards should be judged by criteria that are
different than those applied to safety standards. The
Supreme Court has confirmed this. See Industrial Union Dept.
v. American Petroleum Institute, 448 U.S., supra, 649, n. 54;
American Textile M~frs. Inst. v. Donovan, 452 U.S. 490,
512 (1981). Indee in the Benzene case the Court held that
so long as an agency's findings as to the safe level of a
toxic or carcinogenic substance or physical agent are supported
by a body of reputable medical and scientific thought "the
agency is free to use conservative assumptions in interpreting
the date . . . risking error on the side of overprotection
rather than underprotection''. Industrial Union, supra, at
656. It is axiomatic that occupational health legislation
is to be liberally construed to effectuate the Congressional
purpose. Whirlpool Corp. v. Marshall, 445 U.S. 1, 13 (1980)~

72

This postulate, I find, was recognized by Congress when
it defined i~ section 205 the basic. relationship between
the level of quartz concentrations that do and do not present
significant risks of material health impairment.

I further

find the Secretaries' complementary determination of the
line between the safe and the unsafe while not demonstrable
with mathematical nicety accords with the best available
medical and scientific evidence.
that is required.

This, I

beli~ve,

is all

Compare American Textile Mfgrs. Inst.

v. Donovan, 452 U.S., supra, 495-504, 509.

Indeed in view of

the legislative determination that the dose response curve
is to be set at a 5 percent concentration in a total respirable
dust mass of 2 milligrams (0.1 mg) any attempt to alter that
curve and thereby reduce the protection afforded the miners
by the existing standafd would fall afoul ·of section r61(~)(9)

.

of the Act unless and until it can be shown that a less
stringent standard will provide the same protection.

~/

The operator's reliance on Consolidation Coal Company v.
Secretary, 4 FMSHRC 1559 (1982) is misplaced.

There the trial

judge vacated an S&S charge on the ground the Secretary failed
19/ Section 10l(a)(9) provides that "No mandatory health or
safety standard promulgated under this title shall reduce
the protection afforded miners by an existing mandatory health
or safety standard". A rejection of the S&S charge would be
tantamount to a finding that exposure to quartz dust above
the threshold or safe level is insignificant or de minimis
and the risk insubstantial. This would vitiate tne deterrent
effect of the S&S charge and run counter to the Congressional
purpose that underlies section 104(e).

73

to prove any relationship between the do~e .exposure and a
.

significant risk to the health of the miners.

That deficiency

was cured in this case.
A preponderance of the probative medical and scientific
evidence in these cases shows there was a measurable relationship between the concentrations of respirable quartz found
and the pulmonary disorders of miners regularly exposed to
such concentrations.

There is therefore substantial evidence

to support the conclusion that the concentrations in question
"could be a major cause of a danger to . . . health".

Secretary

v. National Gypsum Company, 3 FMSHRC 822, 827 (1981).
I am mindful that the statute does not require that an
exposure to fibrogenic concentrations of quartz dust present
an imminent health hazard, only a "reasonable likelihood of
an . . . illness of a reasonably serious nature" during a·
miner's normal working life as the result of such exposure.
National Gypsum, supra, 828.

It is undeniable that silicosis

is an illness of a "reasonably serious,f.lature".

Further,

the undisputed medical and scientific evidence shows that
even intermittant exposure creates a "likelihood" or
possibility that a one-time (single shift) exposure could
lead to a serious health impairment or functional disability.
Indeed, unless the threshold lin1it is; to be rendered meaningless
it must be accorded the status of the determinant between what
is and is not significant and substantial.

74

A statute may

not be construed to impute to Congress a purpose to paralyze
with one hand what it sought to promote with another.

v
Section 10l(a)(6) of the 1977 amendments to the 1969
Coal Act adopted almost in haec verba the language of section
6(b)(5) of the Occupational Safety and Health Act. '!:.!l_/ Under
section section 10l(a)(6), the validity of procedures and.
standards designed to attain "the highest degree of health
and safety p.rotection for the miner" are to be judged by
whether the Secretary has shown by the "best available evidence"
that "it is more likely than not" that the permissible exposure
limit (100 plus micrograms) presents a significant risk of
material health impairment.

Industrial Union v. American

Petrol. Inst., 448 U.S. 607, 653 (1980).

This standard

constitutes a recognition by Congress of special problems in
regulating health risks as opposed to safety risks.

Id. at 649,

n. 54; American Textile Inst. v. Donovan, 452 U.S. 490,
512 (1981).

As the

Co~rt

noted, in the case of safety hazards

the risks are generally immediate and obvious, while in the
case of health hazards the risks may not be apparent until
20/ The only difference was the omission of the "feasibility"
requirement found in the first sentence of section 6(b)(5).
A "feasibility" requirement is, however, to be found in
the third sentence of section 10l(a)(6). The operator
does not claim that the 100 microgram standard is technologically
or economically infeasible.

75

a worker has been exposed for a long period of time.

~/

In both the Benzene and Brown Lung cases, the Court took
notice of the fact that to protect workers from material
hialth impairment,

~

regulatory agency must rely on predictions

of possible future events and extrapolations from limited
data.

Industrial Union, supra, at 655-656; American Textile

Mfgrs., supra, at 495-505, and n. 25.

This does not mean

that MSHA is clothed with unreviewable discretion.

What it

does mean is that MSHA's mandate necessarily requires it
to act, even where information is incomplete, when the best
available evidence indicates a serious threat to the health
of miners.

At the same time, to support a finding that a

health hazard is significant and substantial MSHA has a duty
to pinpoint the factual evidence ~nd the policy consideritions
upon which it relied.

This requires explication- of the

assumptions underlying predictions and extrapolations and
of the basis for its resolution of conflicts and ambiguities.
Thus, as I view the matter a Commission trial judge must examine
not only MSHA's factual support, but also the "judgment calls"
and reasoning that contribute to its final decision.

American

Federation of Labor, ETC. v. Marshall, 617 F.2d 636, 651 (D.C.
Cir. 1979), affd. 452 U.S. 490 (1981); Industrial Union Dept.,
AFL-CIO v. Hodgson, 499 F.2d 467, 475-476 (1974).
21/ Congress wanted tne Secretary to protect miners not only
against known harms, but also against risks of harms not wholly
understood. Comparable provisions in the OSH Act have been construed to embrace protection from the "subclinical effects" of a
toxic substance. United Steelworkers of America v. Marshall,
647 F.2d 1189, 1251-1252 (D.C. Cir. 1980). Use of the S&S charge
to deter violations is obviously in furtherance of MSHA's authority
to control not only actual symptoms but to prevent early symptoms
from becoming chronic.
·

76

This I have, to the best of my ability, endeavored to
do.

And hav~ng done so, I conclude that the latest and best

scientific and medical evidence available supports the view
that the violations in question were significant and substantial.
Accordingly, I find the report and documentation supplied
by the Secretary and NIOSH are legally .sufficient to support
the S&S charges.
Order
Th~

premises considered, it is ORDERED that the contest

of the citations in question be, and hereby are, DENIED.

It

is FURTHER ORDERED that for the violations of 30 C.F.R.
70.101 found the operator pay a total pen~lty of $198 and
that subject to payment the capti6ned matters be DISMISSED.

Distribution:
Frederick W. Moncrief, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA
22203 (Certified Mail)
Louise Q. Symons, Esq., U.S. Steel Mining Co., Inc., 600
Grant Street, Pittsburgh, PA 15230 (Certified Mail)

7'7

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

. JAN 141983

Complaint of Discharge,
Discrimination, or Interference

ROGER L. HALL,
Complainant

v.

Docket Nos. VA 79-128-D
VA 80-170-D

B & B MINING, INC.,
Respondent
DECISION APPROVING SETTLEMENT
This proceeding involves two complaints of discharge, discrimination,
or interference filed by Roger L. Hall against B & B Mining, Inc., pursuant
to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977.
The complaint filed in Docket No. VA 79-128-D alleges that respondent dis-_
charged Hall on or about June 4, 1979, in violation of section.lOS(c)(l) of
the Act. Respondent alleges that it discharged Hall because he missed 2 or
more days of work without obtaining permission to be absent, whereas Hall
contends that he was discharged because he requ~sted that the Mine Safety and
Health Administration conduct a special inspection of respondent's mine.
Hall requested an immediate arbitration hearing with respect to his discharge
of June 4, 1979, and, as a result of that hearing, Hall was reinstated to his
prior position and awarded back pay.
The complaint filed by Hall in Docket No. VA 80-170-D alleges that respondent again discharged him on or about April 7, 1980, in violation of
section 105(c)(l) of the Act. Hall claims that respondent's mine was closed
for 1 week and 2 days. When the miners were called back to work, Hall alleges that he asked that the mine be inspected before the miners returned to
work. The primary reason for requesting the inspection related to Hall's
claim that respondent was using 12-inch roof bolts which had been falsely
labeled as 36-inch bolts. Management denied Hall's request. Hall then
asked for 2 days of personal leave which, Hall says, were granted. Hall
then claims that when he returned to work, he was discharged. Respondent's
answer to the complaint in Docket No. VA 80-170-D alleges that Hall was discharged for illegal picketing activities.
These cases were first assigned to Administrative Law Judge James A.
Laurenson who convened a hearing in Abingdon, Virginia, on November 5, 1980,
to consider the issues raised by the complaints. At the hearing, counsel
for respondent stated that respondent had filed a petition in bankruptcy on
February 21, 1980, and that the filing of a bankruptcy action automatically
stays all proceedings against a corporation until a party has obtained permission from the bankr~ptcy court to proceed. Judge Laurenson ruled at the
hearing that he was required by the provisions of 11 U.S.C. j 362 to continue the cases until counsel for complainant had obtained permission from
the bankruptcy court to proceed.

'i' 8

Subsequently·, the counsel who had represented respondent at the hearing
on November 5, 1980, withdrew as counsel in this proceeding because a dispute
among respondent's stockholders had created a conflict of interest which made
it improper for him to represent respondent in this proceeding.
Judge Laurenson rescheduled a hearing after permission to proceed had
been obtained from the bankruptcy court, but that hearing had to be canceled
because of budgetary constraints. Judge Laurenson again scheduled the cases
for hearing, but that hearing also had to be canceled when Judge Laurenson
became one of the judges who were subject to a reduction in force.
The cases were thereafter reassigned to me and I issued a prehearing
order on February 12, 1982, requesting that the parties provide answers to
basic factual and procedural questions by March 12, 1982, but the time for
answering had to be extended so that respondent's newly assigned counsel
could obtain records from the former counsel who had withdrawn. Thereafter,
additional extensions of time had to be granted because complainant's counsel
was forced to undergo surgery for a serious back problem which involved a
long period of post-operative recuperation.
The cases were finally scheduled for hearing on January 11, 1983, in
Abingdon, Virginia. Before a formal hearing had begun, I asked counsel for
the parties if they had discussed settlement. Complainant's counsel stated
that he had not tri~d to settle the cases with the lawyer who was now representing respondent, but that he had tried unsuccessfully to settle the cases
with respondent's former attorney. Counsel for respondent indicatetl that he
was quite willing to discuss settlement. Therefore, the parties·were given
an opportunity to discuss settlement. Shortly thereafter, counsel for complainant advised me that the parties had reached a settlement agreement under
which respondent had agreed to pay complainant an amount of $1,300 with respect to the complaint filed in Docket No. VA 79-128-D and an amount of $700
with respect to the complaint filed in Docket .No. 80-170-D, or a total of
$2,000 for both cases, including attorney's fees.
I find that the settlement agreement should be approved. Complainant
had obtained a job with another employer after his second discharge and
there was not a long period for which back pay could have been required even
if a hearing had been.held on the merits and an outcome favorable to complainant had resulted. Additionally, in view of the fact that respondent is
now involved in formal bankruptcy proceedings, the usual relief of reinstatement of complainant to his former position would not be possible.
WHEREFORE, for the reasons hereinbefore given it is ordered:
(A)

The parties' settlement agreement is approved.

(B) Within 30 days from the date of this decision, the complaint filed
in Docket No. VA 79-128-D shall be considered satisfied and dismissed upon
payment by respondent of $1,300.00 to complainant and the complaint in Docket

No. VA 80-170-D ~hall be considered satisfied and dismissed upon payment by
respondent of $700.00 to complainant. The total payment of $2,000.00 includes
allowance for attorney's fees.

~ef£;~~{7-

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

Distribution:
S. Strother Smith III, Esq., Attorney for Roger L. Hall, Exit 9 - I 81,
P. O. Box 1204, Abingdon, VA 24210 (Certified Mail)
Stephen A. Vickers, Esq., Attorney for B & B Mining, Inc., Copeland. &
Molinary, 212 West Valley Street, P. 0. Drawer 1036, Abingdon, VA 24210
(Certified Mail)
Roger L. Hall, Route 2, Box 465A, Chilhowie, VA

24319 (Certified Mail)

Special Investigations, -MSHA, U. S. Department of Labor, 4015-l-l;ifson
Boulevard, Arlington, VA 22203

80

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

JAN .14 1983

(l03) 756-6210111112

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

v.

Civil Penalty Proceedings
Docket No. PENN 82-63
A.O. No. 36-02695-03001 F E24
Docket No. PENN 82-33
A.O. No. 36-02695-03012 F

AUSTIN POWDER COMPANY,
DOAN COAL COMPANY,
Respondent

Doan Strip Mine

DECISIONS
Appearances:

Robert Cohen, Attorney, U.S. Department of Labor~
Arlington, Virginia, for the petitioner; William M. Hanna,
Esquire, Cleveland, Ohio, for the respondent Austin Powder
Company; Robert M. Hanak, Esquire, Reynoldsville, Pennsylvania, for the respondent Doan Coal Company.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings involve proposals for an assessment of civil
penalties brought by the petitioner against the respondents pursuant
to § llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(a) (1978), for three alleged violations of 30 C.F.R. § 77.1303(h).
The citations were the result of a blasting fatality which occurred at
the Doan Strip Mine on July 30, 1981, and a resulting MSHA accident
investigation with regard to that fatality. One of the citations was
issued on July 31, 1981, and was served on the respondent ~oan Coal
Company, the operator of the mine in question, and the other two·were
issued on July 31 and August 6, 1981, and were served on the respondent
Austin Powder Company, an explosives company who MSHA claims was performing blasting activities on the mine property.
The cases were hearl in Pittsburgh, Pennsylvania, and all parties
appeared and were repre,ented by counsel. All parties were afforded
an opportunity to file posthearing proposed findings, conclusions, and
briefs. MSHA and respondent Austin Powder filed post-hearing arguments,
but respondent Doan Coal Company did not, but has opted to join the
arguments advanced by Austin Powder. All arguments presented by the parties,
including those made at the hea~ing on the record, have been considered
by me in the course of these decisions.

81

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

Section 110-i) of the 1977 Act, 30 U.S.C. § 820(i).

3.

Commission Rules, 29 CFR 2700.1 et ~·
Issues

The issues presented in these proceedings include (1) whether the
named respondents have violated the provisions of the Act and implementing
regulations as alleged in the proposals for assessment of civil penalties
filed in these proceedings, and, if so, (2) the appropriate civil penalties
that should be assessed against each respondent for the alleged violations
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.
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 notificati_on of the violation.
Additional issues, as stated by petitioner MSHA in its post-hearing
brief, are as follows:
1.

Do the fact$ in this case support the conclusion that
Austin Powder performed services at the Doan Strip
Mine and therefore is liable under the Act for any
violations resulting from the actions of its agents?
Can Austin Powder limit its liability under the Mine
Act pursuant to its service contract with Doan Coal?

2.

Is the concept of strict liability applicable to
the alleged violations of 30 CFR 77.1303(h) at issue?

3.

July 30, 1981, were the miners at the Doan Strip
Mine given ample warning that a blast was about to
occur?

4.

If the violations of 30 CFR 77.1303(h) did occur,
were they caused by the negligence of either Austin
Powder a?d/or Doan Coal?

On

82

The issues, as stated by respondent Austin Powder Company in its
post-hearing brief, are as follows:
1.

No violation of 30 C.F.R. § 77.1303(h) in fact occurred.

2.

Austin Powder was not, at the time of the alleged violations, and is not now, an operator, agent, or independent
contractor within the meaning of the Act, and is not subject
to the jurisdiction of MSHA with regard to the actions and
events alleged in this proceeding.

3.

All individuals allegedly committing violations were, as
a matter of law, not employees or agents of Austin Powder
at the time of the alleged violations.

4.

The regulation which Austin Powder is charged with yiolating
is unenforceably vague and ambiguous, as applied to the facts
here.
Discussion

On Thursday, July 30, 1981, a fatal blasting accident occurred at
the Doan Coal Company's strip mine, No. 1 Pit' (stock pile area).
Dennis Alvatroha, a laborer employed by Doan Coal Company, was observing
the blasting operation from a stock pile, and while seated·at, or running
from that.location, was struck by flyrock and other debris from the blast.
The actual blasting work was being performed by Austin Powder Company,
in the person of a licensed blaster, Jeffrey Lucas and hi9 crew,.. and~.the
blasting work was performed at the specific request of Doan Coal Company,
who had no experienced blasters of its own. MSHA conducted an investigation
of the accident, and at the conclusion of same issued the three citations
in question.
All of the citations charge the named respondents with
violations of mandatory safety standard 30 CFR 77.1303(h), which provides
as follows:
Ample warnings shall be given before blasts are
fired. All persons shall be cleared and removed
from the blasting area unless suitable blasting
shelters are provided to protect men endangered
by concussion or flyrock from blasting.
The citations which were issued in these proceedings were issued
after the investigation conducted by MSHA to determine the facts and
circumstances surrounding a fatality which occurred when a miner was
struck by flyrock during blasting of overburden. None of the conditions
or practices cited as alleged violations were actually observed by the
inspectors, and they issued the citations on the basis of information
which came to their attention during the investigation. Two of the citations
served on respondent Austin Powder Company by MSHA Inspector Lyle F. Bixler
are as follows:

83

Section 104(a) Citation No. 1041342, July 31, 1981, which states
the following cpnditions or practices:
All persons were not cleared and removed from
the blasting area and suitable blasting shelters
were not provided to protect men endangered by
concussion or flyrock from blasting at the No. 1
Pit in that the contracted Austin Powder Co. blaster,
Jeffery A. Lucas stated during testimony that flyrock
fell across him and up to 30. feet behind him while
he was detonating a charge. This citation will not
be terminated until all persons are instructed on
the hazards of flyrock. This citation was issued
dur~ng an investigation of a fatal accident.
Section 104(a)-107(a) Citation/Order No. 1041345, August 6, 1981,
which states as follows:
The proper warning was not given by the contract
blaster Jeffery A. Lucas, Austin Powder Co., prior
to detonation of a shot at Pit 010 of Doan Coal Co.
according to the posted requirements. This is a
violation of § 77 .1303 (h) Part .77, 30 CFR. The
blast signals which were posted at the mine entrance
were: 3 ten second signals, 5 minutes before blasting
and short pulsating signals 1 minute before blast, all
clear, 1 prolongeq 30 second blast (air horn) according.,
to testimony given during the investigation of a fatal.
blasting accident that occurred on 7/30/81 Pit 001,
Doan Coal Co., the signal given was three blasts (air
horn) that were sounded 30.seconds to 1 minute before
the shot was detonated. This Order will not be terminated
until this unsafe practice is eliminated by the employees
being properly instructed on th~ safe procedures of
blasting and such procedures are observed by an authorized
Representative of the Secretary at Doan Strip mine I.D.
36 02695.
The third citation was served on the respondent Doan Coal Company by
MSHA Inspector Michael Bondra, on July 31, 1981, and the conditions or
practices cited are as follows:
All persons were not cleared and removed from
the blasting area and suitable blasting shelters were
not provided to protect men endangered by concussion
or flyrock from blasting at the No. 1 Pit (001) in
that Dennis Alvatrona, laborer was fatally injured
by f'lyrock when blasting was done. This citation
was issued during a fatality investigation and
will not be terminated until all persons are
instructed ·on the hazards from flyrock when blasting
is done and remove themselves to a safe area. Dave
Doan was Supervisor.

84

Testimony· and evidence adduced by MSHA
Jeffrey A. Lucas testified that he is employed by the Austin Powder
Company as a licensed blaster for approximately a year and a half, and
that prior to that time he worked as a laborer helping on shots and
loading trucks. He was licensed by the State of Pennsylvania at the
time of the shot in question on July 31, 1981,. and he gained his experience
as a blaster while working part time with Austin Powder while he was
in school. He stated that he was faimilar with Doan Coal Company's
strip mining operation, and he confirmed that he went to the mine site
on July 30, 1981, for a "shot", and he did so after being requested to go
there by Doan Coal. He stated that the mine site is some 20 to 25 miles
from his office, and that prior to the shot in question he had been at
the Doal strip mine four or five times a week with other blasters. During
1981, he spent 50% of his work time at the Doan strip mine performing
blasting, and that he usually-spends from two to five hours a day there,
or as long as it takes to get the job done (Tr. 23-26).
Mr. Lucas stated that when he goes to the Doan strip mine he
does so in response to a specific telephone or other request from Doan.
He has a two or three man crew who assists him during the blasting
operation, and he is in charge of his crew. He gives them their work
assignments, and depending on the job, two or three vehicles are taken
along with the crew. The vehicles are driven off mine property at the
end of the day and are not left there. He explained that the first thing
he does when he arrives at the mine site is to locate the shot area so
as to determine whether the drilling has been completed. The site of the
shot is given to him by Doan Coal, and his job is to load'' and shoot i:he
shot. This entails the wiring of the shot, and one of his drivers will
notify Doan Coal's employees where the shot will be fired, a~d this is
usually done approximately ten minutes before the shot is fired so that
everything is shut down (Tr. 26-29).
Mr. Lucas stated that blasting signs are posted "coming into" the
Doan property, but not at every shot blasting area. After the shot is
wired and the circuits tested, all mine machinery is shut down, and it
is the usual practice for one of his truck drivers to sound a signal.
The usual procedure calls for him to tell the driver to sound a signal,
and he does so by means of an air horn. At the time of the shot in
question, the signal used was three 20-second blasts immediately prior
to the shot. The siren would be sounding tor at least a minute prior
to the blast, but prior to that signal, no horns would be sounded. He
believed this was enough time for anyone to get out of the area because
the area is actually cleared before these signals are given. He explained
that it was his responsibility to clear the blasting area, and he indicated
that he did so by notifying everyone initially by radio and visually.
The radio notification is usually given 10 to 15 minutes before the actual
detonation, and everyone at the mine who has a radio is on the same frequency.
Those not in radio contact are notified personally (Tr. 29-33). However,
he acknowledged that prior to a shot he does not actually ascertain what
every employee on mine property happens to be doing before he notifies
them all individually by telephone, but that a call is made to the mine
superintendent's office (Tr. 26).

85

Mr. Lucas defined the "blasting area" as "an area that is safe when
the blast goes off" (Tr. 37). He indicated that this area would vary
depending on the size of the shot and how it is loaded~ and the terrain.
He also indicated that he has "a good idea" as tp what this area is
before blasting (Tr. 38). He stated that since the events of July 30, 1981,
the signalling procedure has changed so that five minutes before any
shot is fired, three 20-second blasts of a horn are sounded, arid one minute
prior to the actual shot there is a one minute blast (Tr. 29). He examined
a photograph (exhibit G-7-k), of a sign, and he indicated that he believed,
but was not sure, that such a sign was posted on July 30, and that it
calls for three 10-second signals five mintues before detonation and
short pulsating signals one minute before the blast, and that it also
calls for an "all clear" signal (Tr. 41). He believed that an all-clear
was given, but again was not sure since he indicated that the actual
signalling responsibility is delegated to his truck driver (Tr. 41).
Mr. Lucas confirmed that he detonated the blast in question, and
that he was positioned about 300 feet away when he set it off. He
indicated that he was positioned "behind the blast", and he explained
that the blast is put into an open space or cut, and that the blast
"is going the opposite direction from me" (Tr. 44). He examined several
exhibits, but could not state where he was located at the time of the
actual shot, but did state that it was "in from the scale house" (Tr. 47).
Mr. Lucas stated that after the shot was wired, five to ten minutes
elapsed before it was actually shot, and that he observed no one inside
the blasting area during this time. He further defined the "blast area"
as "·anywhere that you suspect rock might fall", and he conceded that he
was responsible to make sure that anyone in that area is in a safe
location or protected (Tr. 50). He confirmed that he spent three hours
at the Doan mine on July 30, and that he is paid by Austin Powder Company
(Tr. 51).
On cross-examination, Mr. Lucas stated that when he arrived at the
blast scene, and before setting off the shot, he secured the area by
making a determination that no one was in the foreseeable danger
area of the blast, and as far as he knew the area where the victim was
found had been cleared. Part of the procedu~e for securing the area
included calling the mine office over the telephone and his truck driver
went to the scale house to notify persons of the blast. All mine equipment
was shut down prior to the blast, and while he did not personally hear
the radio announcement, he is sure ,it was made (Tr. 51-52). He indicated
that Austin Powder's policy is to give radio warnings of impending blasts,
and that policy is still in use. This is in addition to the sounding
or air horn signals and personal contact (Tr. 55). He secured the area
on the day in question and he did not see the victim when the area was
secured.
Mr. Lucas confirmed that as a result of the accident, the State
of Pennsylvania suspended his blaster's license for 90 days, and it was
restored after he took a test before the 90 days were up. He does not

86

know the specific reasons for the suspension, but he confirmed that he
had a license when the blast in question was set off (Tr. 58).
Mr. Lucas stated that a dragline was located some 75 feet from
the shot, but that several loaders and the scale house were three to
four hundred feet away and he could not see them from where the blasting
took place (Tr. 60). In his view, the loaders and scale house were out
of danger, but whether they were in the "blast area" would depend on
the definition of that term. The drag line was shut down and the operator
was secure before the blast, and the other locations would normally be
advised personally to shut down and secure (Tr. 62).
Mr. Lucas stated that at the time of the blast they were using
Austin 80% extra gel dynamite and Aus.tinite 15 ammonium nitrate 'Jlasting
agents and that 24 holes were charged to a depth of some 45 to 50 feet.
Each hole contained approximately 400 or 450 pounds of explosives, but
each hole was detonated on a delayed basis, and did not go off all at
once (Tr. 64). When asked how one determines what is a safe distance
from such a shot, he stated that "there is no set formula for figuring
the safe distance, * * * it is pretty much from experience you know where
the shot is going'' (Tr. 66). He also indicated that a drill rig, a shot
truck, and a driller's maintenance truck were all present near the blast
site and that these constituted suitable blast shelters. If one is at
a safe distance, there is no reason to crawl under these vehicles. The
shot was triggered electrically, and he confirmed that during 1981 he was
at the Doan Coal site three or five times a week performing blasting,
and that 20 to 40 holes are usually charged at any given time (Tr. 6.9).
He also confirmed that he is paid by Austin Powder Company, and that Austin
Powder also provides and pays for other benefits such as vacation and
insurance (Tr. 70). He does not belong to any union, and has performed
blasting work for other strip mine operators similar to the work performed
for Doan (Tr. 71).
Mr. Lucas stated that he was "surprised" by the blast of July 30,
in relation to other shots that he had in the same cut, and a lot more
fly rock came out of the holes than he had expected. Some rock weighing
approximately a pound or so', and four inches diameter landed near him,
but most of the material was mud. He and his crew were around the truck,
but no one was under it, and he was 20 feet from the truck while the
closest rock fell about six feet from where he was standing~ Everyone
had hard hats on, and no none from his crew advised him that any rocks
had fallen near where they were standing (Tr. 73). He confirmed that he
was standing some 300 feet from the blast itself, and he stated that the
charged holes were vertical and that the shot went out from the open cuts
that had been charged (Tr. 74). Mr. Lucas stated that Doan Coal Company
.:::oes not have any licensed blasters, and since he has been working at
the Doan Strip Mine they have never had any licensed blasters of their
own (Tr. 74-75).

87

Theodore R. Williams, Blasting Inspector, State of Pennsylvania
Department of Environmental Resources, testified that is a qualified
blaster, and he· described the types of blaster classifications and the
training required by the State. He stated that warning signs concerning
blasting are usually posted at the entrance to the job site, and on
occasion he has observed such a sign posted in the blast area itself.
The purpose of such signs is to warn people entering the mine site or
to control the blasting area. He believed that information on the
warning signs should be the same as the actual warning signals given.
He identified exhibit G-7(k) as a photograph of a warning sign showing
the blasting signals which are to be used, and he believed the exhibit
depicted a proper or adequate warning system. He believed it was adequate
since the signal system depicted gives a signal five minutes before any
blast, provides for pulsating blasts before the actual blast, and this
sequence would be ample time for anyone to get clear of the blast. He
did not believe that a one minute signal before the actual blast would
be adequate (Tr. 84-93).
On cross-examination, Mr. Williams conceded that in a noisy strip
mining operation where a horn blast signal possibly could not be heard,
he would personally contact people to warn them of any impending blast
(Tr. 95). He also agreed that personal contact or radio contact would
be sufficient notice to employees of any blasting. He also agreed that
means other than a posted sign would be adequate notice to employees in
any given circumstances (Tr. 96-97), and he explained this further when
he stated (Tr. 98-99):

Q. So, what is posted on a sign is not determinative, is not adequate notice in a particular
factual situation?
A. The sign itself should be proper as far as
signals; however; to have communication with your
employees with equipment on the site, there is no
doubt in my mind that this .would have to do with
communication to the operator, however, the signals
should be sounded properly for people on the job.that
are not on equipment and otherwise.

Q. The important factor is to make sure that those
employees do have notice that a blast is about to
take place, right?
A. This is my concern.
notified.

I think they should be

Q. The method by which those employees are notified
will carry from one situation to another, depending
on the factual circumstances?

88

A.

Definitely.

Q. You cannot say here as based on your experience
as a blaster that there is one particular method which
is mandated to be followed in all instances everywhere?
A.

No.

Mr. Williams also indicated that any posted sign signals should be
followed, and ever though hand signals or radio communications are used,
the posted warning signals should definitely be followed (Tr. 99).
David Potempa, testified that at the time of the blast in question
he was employed by Doan Coal doing "a little bit of everything", but
that he is no longer employed there. He was .at the mine site at the time
of the blast, and he stated that he arrived there in a pick-up and went
to the scale house. He arrived at the mine property "about. less than
five minutes before the blast" and was on the main road and driveway
to the scale house. No one told him to take cover, but he knew there
would be a shot, and when he got out of his truck he went to the
scale house to get a can of pop, but he did not go there for the specific
purpose of getting out of the blast area (Tr. 100-102).
Mr. Potempa stated that the scale house is a "good 300 to 400 feet"
from the area where the blast was fired, and when asked whether he believed
the scale house is a designated "safe area"' he replied ''it depends on
what you are hiding from". He believed it was probably safe from any
blasting, but indicated that the scale house was not post~d wit~ any~·
blasting warning signs. He also stated that a member of mine management,
in the person of the owner's grandson, told him to go to the scale
house. In addition, Mr. Potempa stated that he heard the blast warning
signals as soon as he pulled up in front of the scale house and he
shut off the pick up. The blast went off "probably less than a minute
after the last warning signal was given, and he was in the scale house
when the blast went off. He looked out the window and saw "all kinds of
rock and debris thrown all over the place", but none hit the scale house,
and none came close enough to cause any danger (Tr. 105).
Mr. Potempa stated that when the blast was over, he drove his truck
to the stockpile area which he described as being "off to the right"
of the blast area, and while he was there he observed the accident victim
lying on the roadway leading to the stockpile. His hard hat was off, and
he was at the edge of the stockpile. Mr. Potempa stated that he did
'
not believe the accident victim's body was "inside the blasting area",
which is described as "probably about 300 feet away", but that the victim
was found "probably close to 300 feet" (Tr. 107).
Mr. Potempa testified that he was familiar with the posted blasting
warning signs which were on the mine property, and he indicated that the
signals given on the day in question were the "same type as the sign",
but he could not specifically recall how many signals were sounded
because he did not pay that much attention to it because "it is really

89

like an everyday thing to me" (Tr. 107). The roadway he used to get
to the scale house was not barricaded, and he knew that there would
be a blast becaµse he observed the trucks coming on to mine property
and he also saw the victim earlier in the day. He knew when the blast
was going off when he drove up to the scale house and heard the warning
signals go off five minutes before the blast, and one minute before it
was actually detonated. He believed that he received adequate warning
of the blast and he also believed that he was in no danger because he
was not in the blast area (Tr. 109). He observed no trucks driving
around immediately before the blast, and he confirmed that he saw rock
into and around the coal pile where the victim was found. He also
confirmed that he could not see the blaster from the scale house (Tr. 110).
On cross-examination, Mr. Potempa confirmed that he knew the accident
victim, and that when he first discovered him he was about 300 feet from
the actual location of the blast. He knew that the victim was working
near the stockpile on a crusher, and his normal work station would be
"the back part of the stock pile" (Tr. 112). His normal work station
was farther from the blasting area than where he found him (Tr. 113).
Mr. Potempa stated that he went to the scale house for some shovels
for Mr. Doan's grandson Mike Stiles, and the scale house was located
"on the other side of the hill from the blasting area". He heard no
call over his pick-up radio pecause he had turned off the motor and was
outside the truck. He also stated that "there wasn't a bit of danger
over there" (Tr. 114). He described his normal procedure for shutting
down prior to a blast as follows (Tr. 116-118):
ADMINISTRATIVE LAW JUDGE KOUTRAS: Had you just
been out on the road when you heard the last one
minute signal prior to the blast, what would
you have done?
THE WITNESS:
pickup off.

I would have stopped and shut the

ADMINISTRATIVE LAW JUDGE KOUTRAS:
have shut the pickup off?

Why would you

THE WITNESS: It is a natural thing. We always
do it when they are going to shoot. If you are
within so much range, because you know, the
vibration, well, not too much in the pickup, but
the dozer when it is run, it will crack the crank
on it.
ADMINISTRATIVE LAW JUDGE KOUTRAS: You are saying
regardless of where you are on the mine site, if
there is a blast, the normal procedure for all
equipment is to stop it even though you are outside
the danger zone?

90

THE WITNESS: Yes, it depends what job you are.
on or how close you are, but everyone shuts down.
ADMINISTRATIVE LAW JUDGE KOUTRAS: Back up a little
bit. Prior to this particular blast, had you been on
the mine property when at.her blasts were shot by
Austin Powder?
THE WITNESS:

Yes.

ADMINISTRATIVE LAW JUDGE KOUTRAS: And is the procedure that you followed on those other occasions
approximately the same as on this date?
THE WITNESS:

Right, right.

MSHA Inspector Mi.chael Bondra confirmed that he· conducted an investigation of the blasting fatality on July 31, 1981, and he identified exhibit
G-4 as a copy of the report he prepared. He stated that he measured
the distance from the actual blasting location to where the accident
victim was last seen and it was 223 feet. He observed large rocks and
clay in the area where the victim was found, and his investigation
disclosed that the victim was struck by a single large rock weighing
approximately 39 pounds (Tr. 125-129).
Mr. Bondra stated that based upon interviews and measurements,
he determined that there was a clear view from the area where the victim
was last seen and the location where the blast occurred. /The distance
from the shot to the blasting portion was 300 feet, and Mr. Bondra
believed that if the blaster were looking where the victim was last
seen he should have seen his yellow hard hat (Tr. 130).
Mr. Bondra stated that the distance from the blasting location
to the scale house was 400 feet, and that the house did not have a sign
on it designating it a "safe area". In his opinion, the persons inside
the house would not have been protected from a rock the size of the one
which struck the victim in the event that it hit the roof (Tr. 131).
The scale house had a metal roof· and framed material, and he believed
the rock would have gone through (Tr. 132).
'

Mr. Bondra identified a sketch which he made as part of his investigative
report, and in which he labeled an area 100 feet long by 100 feet wide
as the "blasting area". He stated that this was a mistake, and that this
area should have been labeled "blasting location". The "blasting area"
is defined by section 77.2, and it means "the entire area around the
blasting iocation where the blasting is being done shall be cleared in
which concussion or flyrock material can reasonably be expected to cause
injury" (Tr. 136).
Mr. Bondra believed that the victim, the scale house, and the blaster
and his crew were all within the "blasting area", and he reached this
conclusion because flyrock and debris from the blast went beyond the
areas where they were all located (Tr. 137).

91

Mr. Bondra testified that during his investigation, a truck driver
(Martz) from another company who had just driven to the scale house told
him that he saw.the victim near the stockpile prior to the blast. Mr. Martz
knew that there would be a blast when he came to the scale house (Tr. 143).
Mr. Bondra confirmed that he observed a blast warning signal sign posted
on the property, and he also confirmed that such a sign is not required
by any MSHA standard (Tr. 145).
Mr. Bondra confirmed that he issued the citation charging a violation
of section 77.1303(h), and he did so because the victim, the blaster, his
crew, and the people in the scale house were not removed from the blasting
area. He determined there were no suitable shelters by the scale house,
and he considered the violation to be very serious. He issued the citation
to Doan Coal because as the mine operator, Doan has the responsibility
to comply and cannot delegate to this to an independent contractor. He
believed that Doan should have been aware of the fact that all of the
individuals mentioned were in the blasting area, and Doan should have
seen to it that they were all removed. When asked what he believed to
be a "safe haven for miners", he replied "out, say 500 feet" (Tr. 148-150).
Mr. Bondra confirmed that he interviewed loader operator Bloom
who told him that he had received the blast warning over the radio and
that he in turn gestured to the accident victim. The victim then started
to go back to the scale house, and Mr. Bloom assumed that's where he
was going (Tr. 153). Mr. Bloom told Mr. Bondra that his motion to the
victim was to "shut down your equipment" (Tr. 155).
Mr. Bondra believed that Mr. Bloom should have seen to it that the
victim went to a safe place, and that his negligence in failing t~ d·~
so is Doan Coal's negligence, and that Doan Coal should also have blocked
the road to and from the scale house and posted someone there to secure
the area (Tr. 156, 160).
On cross-examination, Mr. Bondra testified that he is not a licensed
blaster and is not trained in the use of explosives or in geology. He
stated that his opinion that 500 feet would be a "secure area" was "an
arbitrary stab" on his part, and that he does not have the background
in explosives to say it is safe or unsafe (T,r.• 161).
Mr. Bondra conceded that his investigation report abstract, at page 4,
contained a statement that "the accident occurred when Dennis Alvatrona
went to observe blasting operations" (Tr. 166). Mr. Bondra also conceded
that it was his reasonable belief that the victim, Mr. Alvatrona, walked
in to view the blasting operation" (Tr. 167). He also conceded that
Mr. Alvatrona must have been notified of the impending blast because he
went in to view it (Tr. 167).
Mr. Bondra confirmed further that he h~s never had a blaster's
license, has never taken a blaster's test, had had no training or education
in blasting, has never read any blasting literature, and does not hold
himself out as an expert in explosives or blasting (Tr. 171).

92

.Mr. Bondra ·confirmed that at the time he conducted his investigation
none of the people he interviewed were under oath, they were not given
an opportunity to sign any statements, no transcript was prepared, and
the persons interviewed did not review their purported statements. He
also confirmed that his accident ·report was compiled from notes made
by him and others, that the purported statements made by individuals
interviewed are not verbatim (Tr. 171-173).
Mr. Bondra stated that a piece of equipment can be a blasting shelter,
and he confirmed that a drill rig was near the blaster. He also stated
that the rig would be a sufficient shelter if the blaster were under
it or very close to it (Tr. 182) . He believed that the blaster should be in
a safe position in a sheltered area so he can jump back where no flying
material will strike him (Tr. 182). He indicated that his irivestigation
did not determine where the trucks were located, and as far as he is
concerned the only safe area within the 500 blast area was under the drill
rig (Tr. 185).
Mr. Bondra confirmed that there would be no violation if the blasting
crew were under the trucks, and while he als·o confirmed that he heard
Mr. Lucas testify that his crew took cover by or under the trucks, he
stated that he was not aware where the crew was (Tr. 188).
·In further response to questions from the bench, Mr. Bondra stated
as follows (Tr. 193-196):

Q.

You were influenced by the fact that you had some
testimony by the blaster himself that the debris went
sailing over his head, right?

THE WITNESS:

Yes.

Q.

You came to the conclusion that these guys were
in the blasting area and were not safe and were exposed
to a hazard, right?

THE WITNESS:

Q.

In a sense, yes.

Well, I mean that is a fact, is it not?

THE WITNESS:

Yes.

Q.

Had the fact shown that no debris went as far as
the scale house and no debris went as far as the blaster,.
then those two people would not have been in the blast _
area, would they have, in your opinion? You would
not have concluded that in your report?
THE WITNESS:
area, no.

According to the definition of blasting

93

Q. So, the definition of blasting area that you
applied in this case was directly related to the force of the
blast and how far the material went, right?
THE WITNESS:

In this case.

Q.

In any case? What I am suggesting to you, sir,
is that the only way a blaster can guarantee what the
blasting area is is to blast first to find out how far ·
the deb'ris goes, and then blast again to make sure everybody is out beyond that; is that correct?
THE WITNESS: No. Would his experience tell him what
the blast area is?

Q. Did you hear Mr. Lucas' testimony in this case that
based on his experience he felt he had his men removed
from the blasting area; and, later on in his testimony,
he said that this was an unusual blast?
THE WITNESS:

Was that an opinion?

Q. Well, do not the regulations put the responsibility
on the blasting man to determine what a reasonable
distance is?
THE WITNESS:

Yes.

Q. I am trying t.o determine what is the blasting area.
What if the blaster came to you and said, Mr. Inspector,
I would like you to give me your opinion of what you
believe the blasting area is. I have 24 holes loaded,
and we are ready to shoot. Before I shoot, I want to make
sure I am in compliance with the standard. I need some
technical advice from you, and I would like you to tell
me how far I have to remove these guys, my crew, to make sure
that none of them are hurt by.flying debris. What would
you tell them, or what would you in a position like this ·
advise him?
THE WITNESS: I am not really in a position, but the State
has a ruling of 500 feet, and we have accepted that for a
long time.

Q.

The State has what?

THE WITNESS: They have a rule in effect approximately
500 feet. They have issued that situation, and I think
-- I don't know how -- like I said, I'm not a state
inspector.

94

Q.

The State has some specific standard that has set
down in some kind of regulatory language what would be
a safe distance from a blast?
THE WITNESS:

Not in the regulations, I don't think.

MSHA Inspector Lyle F. Bixler, confirmed that he was at the mine
on'July 31, 1981, to assist in the accident investigation. He stated
that he has underground blasting experience, and he indicated that a
sketch labeled "Iban exhibit 4" fairly depicts the area he observed on
July 31, except for the presence of a crusher near the stock pile. He
indicated that the distance from the blast to where the victim was sitting
was 223 feet, and that the distance from the blast to where the blaster
was located was 300 feet (Tr. 204-208).
Mr. Bixler confirmed that he issued a citation to the Austin Powder
Company, exhibit G-2, and he did so because of MSHA '.s policy to serve
both the contractor and mine operator when their personnel are involved.
He believed that Doan Coal Company depended on Austin Powder' to provide
a service safely. Austin Powder had a continuing presence at the mine
because "they would be there pretty much of the time" on six or seven
blasting jobs for Doan Coal (Tr. 212).
Mr. Bixler confirmed that he issued the citation to Austin Powder
because the blasting crew was not out of the ·blasting area, and he determined
this fact "because of the flyrock an_d debris that fell around the blasting
area". He also stated that he did not know whether it was· unusual for
a blaster to be within 300 feet of a shot area, and he "gyessed'~. thaj:
the size of the explosive shot and the terrain would have a bearing on
this question (Tr. 214). He believed that the citation was very serious
in that more people could have been killed or injured, and he also believed
the citation was "significant and substantial" because it was likely
that serious injuries could have occurred because of the flying debris
and rock that fell around the blaster (TR. 216).
Mr. Bixler stated that he considered Mr. Lucas to be an employee
of Austin Powder, and he believed that Austin Powder was negligent for
not removing the blaster and his crew from the blasting area. He confirmed
that he filled out an "inspector's statement", and that he indicated that
he stated that Austin Powder, as the "operator", was responsible for the blast:
and for clearing the area. As the employer of the blaster, he considered
that Austin Powder was responsible for the blaster's actions. He also
believed that three or four people were exposed to a hazard, namely,
the blasting crew, the blaster himself, and the people in the scale
house (Tr. 219-221).
Mr. Bixler also confirmed that he issued a second citation to Austin
Powder on August 6, 1981, for a separate violation of section 77.1303(h),
namely, that portion that requires an ample warning to be given before
any blast (Tr~ 222). He made the determination that no ample warning
was given on the basis of statements made by persons during his investigation.

95

Those statements indicated that the actual warning signals which were
given were different from those posted on a sign ori the mine road. He
did not believe· that three 2 - second blasts within a minute or less gives
any one ample time to get to a safe area, but that following the warnings
shown on the sign would have (Tr. 223).
Mr. Bixler stated that during his investigation Mr. Bloom stated
that he motioned the accident victim that a shot was going to be fired,
but that he (Bixler) did not follow up and ask Mr. Bloom what he meant
by his motions to the victim (Tr. 224). Mr. Bixler also concluded that
since the victim was only 223 feet from the blasting location, "he probably
wasn't warned" (Tr. 225). Mr. Bixler believed that the blaster was negligent
in not following the posted warning sign (Tr. 228).
On cross-examination, Mr. Bixler confirmed that most of the findings
made in MSHA's accident investigation report were made by Inspector Bondra,
and that he (Bixler) assisted in the making of the measurements reflected
in the report (Tr. 228). Mr. Bixler conceded that at the time he issued.
the citation to Austin Powder, he did not take into account Mr. Lucas'
assertion that he believed 300 feet to be a safe distance from the blast.
Mr. Bixler also stated that he could not recall discussing this with
Mr. Lucas, and that he did not take into account any geological or
atmospheric conditions which may have been considered by Mr. Lucas prior
to the blast (Tr. 231). Mr. Bixler also conceded that Mr. Lucas did
have the safety of his crew in mind prior to the blast, but probably did
not anticipate the actual force of the bl~st (Tr. 234).
In response to further·cross-examination, Mr. Bixler confirmed
that he is not a blaster and has never held a blaster's lincense. He
also indicated that he has never done any surface blasting, is not a
blasting expert, and that in the event he has need for information concerning
blasting techniques or procedures he would have to consult a blasting
expert (Tr. 236). In this case, he indicated that he spoke with
Austin Powder's licensed blasting technical representative Ray Thrush,
but he was not aware of the fact that Mr. Thrush holds a certificate
from MSHA qualifying him to train other blasters. He could not recall
Mr. Thrush telling him that Mr. Lucas acted in a normal and prudent
manner at the time of the blast in question, nor could he recall Mr. Lucas
and Mr. Thrush advising him that the particular flyrock shot in Mr. Lucas'
direction could not have been anticipated (Tr. 237).
Mr. Bixler identified a copy of his "inspector's statement" which
he filled out on July 31, 1981, with respect to citation no. 1041342,
(exhibit AP-8). He confirmed that he nmrked the first block under
the heading "negligence" to show that the condition or practice cited
"could not have been known or predicted, or occurred due to circumstances
beyond the operator's control". He also confirmed that he explained this
under the "remarks" column of the form where he indicated that "the
blaster notified all persons of the impending blast about 10 minutes before

96

blasting and again half to one minute·prior to blasting. Blast holes
do not normally blow out". He explained the last remark a.s "that meant
that it was not anticipated or capable of being anticipated that this
blast hole would blow out and send fly rock back that far away from the
front of the face" (Tr. 238-240).
Mr. Bixler confirmed that when he submitted his inspector's statement
of July 31, 1981, it was returned to him by his supervisor who advised
him that the form had been returned by someone in the "Washington Solicitor's
Office" who advised his supervisor that he (Bixler) could not conclude
that Austin Powder was not negligent (Tr. 242). Mr. Bixler did not know
the identity of the solicitor, and on the basis of instructions received
from his own supervisor, Mr. Bixler prepared another form stating that
Austin Powder was negligent (exhibit ALJ-1), and that form was resubmitted
on November 16, 1981. He reached his "new" opinion that Austin Powder
should have cleared everyone from the area on the basis of his observations
on how far the flyrock went after the occurrence (Tr. 243; 257-261).
Mr. Bixler stated that he did not have the technical background or
expertise to question Mr. Lucas' judgment that he believed he was at a
safe distance prior to the blast (Tr. 244). Mr. Bixler believed that the
drill rig at the blast area was a "safe area" if men were under or in
it (Tr. 244). He also believed that the blaster "should be at least close
enough to it that in the event he needs to get under it, he could" (Tr. 244).
In the instant case, he believed that Mr. Lucas "should have been closer
to the drilling rig", and did not think that he could have gotten under
it from a distance of 25 or 30 feet. Mr. Bixler also stated that Mr. Lucas
probably thought he was at a safe distance, and when asked what'"advi-te he
would give someone who may ask him how far back from a blast would be "safe",
he replied "on the side of safety; and, from what we found out here, I
would say at least 500 feet. That's a rough guideline" (Tr. 245-246).
However, he also stated as follows (Tr. 246):

Q.

You would say that in very instance blasters
should be at least 500 feet?

A.

Not necessarily, no.

Q.

It could vary depending upon a number of factors?

A.

Son1etimes 500 feet, it wouldn't be enough.

Q.

Other times it would be more than enough?

A.

That's right.

Q.· And you really do not have the technical expertise
or background to give advice to someone on whether he
would be in violation of the law or whether he would
be safe at a certain distance?

97

A. ·That's why I would go on the side of safety.

Q. Because you really do not know enough about
blasting techniques and safety factors to know how
far back would be safe under particular factual
circumstances?
A.

Under normal conditions, yes, but under extreme
conditions, no.

With regard to his conclusions that an adequate blast warning was
not given to employees in this case, Mr. Bixler testified as follows
(Tr. 247-250):

Q.

The purpose of this statute is to make sure
that those employees who were in the area would be
given a sufficient opportunity to go to a safe place;
isn't that correct?

A.

That's correct.

Q. And any warning device which is understood by the
blaster and the other employees and which provides that
type of notice would be adequate under the statute,
would it not?
A.

Would you re£~at that again, please?

Q.

Any warning, technique or procedure which is understood by the blaster and by the employees on the premises
and which gives the employees that notice so that they can
go to a safe area would be sufficient under the statute,
would it not?
A. In this case, it was posted, and I would think that
the signal given could be misleading.

Q. But do you know whether or not Mr. Alvatrona relied
upon the sign?
A.

That I couldn't say.

Q.

You have no way of knowing that one way or the other?

A.

No.

Q. You have no way of knowing what Mr. Alvatrona understood by the motion from Mr. Bloom?~
A.

I have no way of knowing that either.

98

Q. · And you did not follow up with Mr. Bloom and ask
him what that motion meant and whether based upon his
working relationship with Mr. Alvatrona he could testify
to what Mr. Alvatrona understood the motion to mean?
A. Mr. Bloom stated that he motioned Mr. Alvatrona to
shut down.

Q. You were satisfied at that point that those employees
at Doan understood that motion to mean he was supposed to
shut down because the blast was going to take place?
A.

Yes.

Q. That is why you did not feel it necessary to ask
Mr. Bloom any further questions about the motion and the
meaning of the motion?
A.

That's right.

Q. And any warning device or procedure or technique
which furnishes an employee with the information the
blast is about to take place and sufficient time to find
a safe haven does satisfy the statues, does it not?
A.

I would say so, yes.

Q. And certainly direct personal knowledge to an
employee given to him either over the radio or in person
would be sufficient notice?
A.

Probably would be, yes.

Q. You do not have any factual basis for any opinion
on whether Mr. Alvatrona would be alive today under
any different hypothetical circumstances with regard
to notice of hypothetical conduct on the part of anyone
else who was on that property, do you?
A.

Would you repeat that, please.

Q. Surely. Do you have any factual basis for drawing
any conclusion as to whether Mr. Alvatrona would be
alive today based on any hypothetical actions or conduct
by anyone else who was on the Doan Coal Company property
on that day in July of 1981?
A.

That I wouldn't know.

Q.

It is complete speculation?

A.

That's right.

99

Testimony and evidence adduced by Respondent Doan Coal Company
Albert Bloom, testified that he is employed by Doan Coal Company as
a loader operator and was so employed on the day of the accident. He
confirmed that he and the victim Dennis Alvatrona were co-workers and
on the day of the accident Mr. Alvatrona was operating the crusher near
the coal stock pile and Mr. Bloom was operating a loader. Mr. Bloom
stated that ten minutes before the blast he received notice of this over
the company radio.installed in his loader. He was called by the dragline
operator, and told.to shut the equipment down. Since the crusher had no
radio he motioned and signaled Mr. Alvatrona to shut the crusher down.
The hand signal he used is a standard procedure which everyone understands.
He had used them before and he believed Mr. Alvatrona understood them
and he shut the crusher down. After he shut down, Mr. Bloom observed
Mr. Alvatrona heading in the direction of the scale house, and he indicated
that he habitually spent most of his time there (Tr. 272~279).
Mr. Bloom st~ted that it was company policy to warn employees of
impending blasts personally or over the radio. He confirmed that he heard
three airhorn blasts immediately before the blast on the day in question,
but it was his view that such warning sounds cannot be heard over the
noise of back-up alarms and loaders (Tr. 281).
On cross-examination, Mr. Bloom stated that he never saw Mr. Alvatrona
or any other employees inside the blast area prior to the blast. He had
no idea as to why anyone would walk into a blast area "unless it fascinated
you to watch it" (Tr. 284). Mr. Bloom stated that no barrier was on the
road coming onto mine prope·rty, that he had never ·seen such a barrie·r
in the past, and he did not believe it possible that Mr. Alvatrona was
serving as a guard the day of the blast (Tr. 286). He confirmed that
five to seven minutes, and at most 10 minutes, elapsed between the.time
he received the radio information about the blast and the actual blast
(Tr. 286). He confirmed that the "blow out" surprised him because there
was more fly rock than usual. He had no contact with the blaster prior
to the shot, and when he saw Mr. Martz driving into the area he stopped
him and told him to shut his truck down by means of a hand signal, and
this was before the warning signals were sounded (Tr. 288) •
. In response to further questions, Mr. Bloom stated that he stayed
inside his loader where it was parked and that he.did not consider himself
to be in "danger. Since he saw Mr. Alvatrona heading for the scale house
he assumed that is where he was going and did not speak to him further
(Tr. 291). He believed he was safe, and if he observed fly rock going
over him after the blast, he would not stay in the same location the
next time a blast was fired (Tr. 293). Other similar shots had been
fired the same day of the accident (Tr. 294). He had never known
Mr. Alvatrona to go and observe shots in the past, and he did not know
what he was doing the day he was killed since "after he got passed a
a certain point I couldn't see him" (Tr. 296).

100

Mr. Bloom confirmed that it was normal procedure to shut down all
equipment as soon as notice of a blast is received, and if others around
him did not have radios, he would notify them personally (Tr. 300).
He also confirmed that he determined the safe blasting area for himself,
no supervisor told him what it was, and he did not know how much explosives
were going to be set off since he did not speak with the blaster (Tr. 301).
Alvin Mitchell, testified that he is an engineer and safety director
for Doan Coal Company, and was so employed at the time of the accident.
He confirmed that the company has a qualified training program, that he is
in charge of it and is certified to conduct training, and that he trained
Mr. Alvatrona. He identified exhibit R-1 as a copy of Mr. Alvatrona's
training certificate, and indicated that he was trained in hazards
identification as well as in the use and danger of explosives (Tr. 312).
Mr. Mitchell testified as to the company's blasting signal policy and
procedure, and confirmed that there are 33 mobile radio units at the
mine on most of the equipment. He also confirmed that he was present
during the accident investigation, and stated that the distance from the
shot area to where Mr. Alvatron~'s body was found was 260 feet, and he
indicated the normal route he would have taken to get to the scale house
from the stock pile area.
Mr. Mitchell confirmed that the location of the blast where the drill
holes were at was at the edge of the pit and that Mr. Alvatrona would
have no reason to be in the area where he was found (Tr. 319). Mr. Mitchell
stated that part of Mr. Alvatrona's training included pro'cedures concerning
the shutting down of equipment and blasting signals (Tr. 322). Mr. Mitchell
also indicated that the procedure followed by Mr. Bloom in notifying~·
Mr. Alvatrona about the blast, as well as the mirte procedure for notifying
other employees was normal and no different from any other day (Tr. 323).
Mr. Mitchell identified several photographs depicting the spoil pile
where it is believed Mr. Alvatrona was sitting at the time of the blast,
and the general scale house area (Tr. 323-328; exhibits AP-1 through AP-7).
Mr. Mitchell testified that he was at the blast scene after the
accident, and in his opinion had Mr. Lucas been looking in the direction
of the spoil pile he could have seen Mr. Alvatrona (Tr. 333). M~. Mitchell
identified exhibit G-7(k) as a photograph of a typical blasting signal
sign posted at the entrance to the mine property, but could not say whether.
that particular sign was posted on the day of the blast. However, he did
indicate that a similar sign was posted, and that the men are instructed
to listen for the signals depicted on the sign (Tr. 334). He did not know
whether the mine road is normally barricaded because he is not at the
'
mine when blasting takes place (Tr. 335). Mr. Mitchell stated further
that the spoil pile was 13 to 14 feet high, and that Mr. Alvatrona's
work would not require his presence there (Tr. 338).
Mr. Mitchell considered the seal house, the drill truck, and the loader
and crusher to be suitable blasting shelters (Tr. 343). Mr. Mitchell
conceded that Mr. Lucas may not have followed the literal blasting

101

warning signals shown on the sign posted on mine property, and he explained
this by statin~ that Austin Powder's personnel are not trained at the same
time as Doan's employees (Tr. 357). Mr. Mitchell stated that on the
particular shot in question, a distance of 200 feet would probably not be
a safe distance, and had he known that 24 holes were loaded with 400
pounds of explosives that he would have ordered men to be removed 200
feet since there was a chance that flyrock would reach that distance.
However, the blaster was 300 feet away and he believed this was safe
(Tr. 362).
David G. Doan, testified that he is the managing owner of Doan Coal
Company and that he has been in the coal business since 1944. Mr. Doan
stated that all mine equipment except for bulldozers are equipped with
radios and that everyone on the site is given actual notice, either
personally or by radio, before a blast is fired. Everyone on the site is
notified to shut down and await the shot regardless of how far away from
the actual blast they are located. Mr. Doan confirmed that he is
experienced in the use of explosives, and as far as he is concerned the
use of air horns is not effective because of the roar of the equipment
and that is why mine procedure calls for the shut down of all equipment
before a blast and personal notification given to all employees (Tr. 365371).

Mr. Doan stated that the scale house was a secure area and that
"there is no way that a rock could go through the scale house" (Tr. 372).
He also indicated that the crusher is made of structural steel and would
make "a wonderful shelter" (Tr. 372), and that since he has been in j:he
coal business he has never-had any problems with notifying employee~ and
clearning out blast areas. He confirmed that the accident in question
was his first fatality, and that there have never been any explosive
related injuries at the site since he has been in busine~s (Tr. 373-374).
With regard to the signals given and the definition of "blast area",
Mr. Doan testified as follows (Tr. 376-377):

Q.

Mr. Doan, you mentioned that the victim was
personally told that there was going to be a blast.

A.

Well, he was personally notified with the signals.

Q. There is a distinction between personally told
and personally signaled; would you not agree?
A. Well, that depends on how fine a little thin .line
you want to ·draw. He personally understood the signals
because he had been taking. them and giving them up
until then. It was nothing new that he got. The signals
that he got that day were the same as he always got.

Q.. Do you mean he never got them before on the radio?

102

A.

If he was at a machine with a radio he got them.

If not, he got them from Mr. Bloom, his buddy that he

worked with. Because Mr. Bloom always had a radio
where he was.

Q.

You heard the safety director testify or state
that he believed that the victim at .the time of the
blast was in the blast area. Would you agree with that?
A. No. It has not been defined to me yet where the
blast area is. I have sat in this Court for two days
now. I haven't heard anybody define the blast area. It
seems that the blast area, according to MSHA, is anyplace
a man can get hurt. There doesn't seem to be any regulation
to it that I can understand from what I have listened to.
Austin Powder Company's Testimony
Jeffrey A. Lucas confirmed that he is a licensed blaster and holds
a college B.S. degree in mathematics. He stated that the warning signals
used before and during the blast in question consisted of radio contacts
ten to fifteen minutes before the blast and three signals immediately
prior to the blast, and no one ever requested that this be changed. To
his knowledge he has never known of any Doan employee to ignore the signals,
and he had no reason to believe that anyone did not understand them.
He believed he was in a safe location on the day of the incident, that
the shot was laid out to go away from where he and the crew were located,
and that he had previously made five to six previous shota at that le>cation
(Tr. 400, 412). There were no blowouts from the previous shots, and had
the one in question gone the same as the others no one would.have been
in danger 100 feet from the shot. There was nothing unsual about the size
of the shot in question, and in relation to the others they were all the
same, including the amount of explosive used (Tr. 402).
Mr. Lucas stat.ed that he believed his crew was in a safe location
and he also believed that the scale house was safe because it was further
from him and away from the shot location. He confirmed that he was looking
at the blast area and he indicated that he prefers not to be under a truck
because he wants to view the blast and can always move away from any
flyrock. On the day in question, he never expected the flyrock to come
as far as it did and he was not aware that anyone was on the spoil bank
and saw no one in the area that he considered to be the blast area (Tr. 408).
After the incident, MSHA suggested to him that he move further back, seek
some sort of protection, and suggested a 500 foot distance as a guideline.
He personatly would not like to be 500 feet from a shot and would prefer
to be somewhere where he can see it (Tr. 409).
Mr. Lucas testified that from where he was standing at the time the
bla.st was set off he was unable to see the crusher because it was behind
the coal stock pile and there was line of trees in the area. He personally

103

did not walk to the crusher area, but he sent the truck driver to notify
anyone in the area and he believed the.area was a safe area (Tr. 415).
Mr. Lucas ident·ified a copy of exhibit G-8 as a· company blast report
which he filled out immediately following the shot, and he confirmed that.
He concluded the scale house as a "possible hazard" on the form. He
explained that this was done because the State requires buildings and
houses to be identified on the form (Tr. 420).
Mr. Lucas explained the characteristics of a "blowout", and he
confirmed that he checked all of the holes for potential signs of such
an incident. He explained the wiring and detonation of the shot, and he
confirmed that since the accident he has changed his signaling procedure
to comply with the blast warning sign which is on the property, but that
the radio signal system is also being used (Tr. 441-446).
Ray Thrush, testified that he has been employed with Austin Powder
for approximately eleven years as a sales and technical representative.
He confirmed that he has been a licensed blaster since 1967 and is licensed
in the States of Pennsylvania, Maryland, and West Virginia. He also
indicated that he is an MSHA certified surface and underground blasting
instructor. Mr. Thrush confirmed that he has been going to Doan Coal's
property since 1971, and prior to his employment with Austin Powder he
was on the site doing blasting work with the National Powder Company.
He also indicated that prior to July 30, 1981, and before radios were
obtained, the warning signals which were used were "personal contact with
all machinery". Since that time radio contact is used, and the threeblasts on an air horn was also used as a signal within the past several
years and before July 30, 1981 (Tr. 454-458).
Mr. Thrush confirmed that he was at the mine the day after the accident
during the investigation and was familiar with where Mr. Lucas was
positioned at the time of the blast. In his opinion, Mr. Lucas was at
a safe distance, and he indicated that based on the number of holes and
the amount of the powder used, he could have been 100 feet closer and
still been safe. Mr. Thrush described the 24 charged holes as a "small
one", and he also indicated that as a blaster: 'he would like to be positioned
so that he can observe a shot. He also indicated that during his conversation
with Inspector Bixler, Mr. Bixler indicated to him that he could not find
anyghing wrong with what Mr. Lucas had done (Tr. 458-462).
Hr. Thrush indicated that he wa's present when MSHA Inspector Zangary
terminated the citation and he indicated that he did so by coming to the
mine to observe the manner in which another shot was fired. The shot was
in ·front of the spoil pile and the crew and the inspector were by an old
equipment trailer when the blast was fired. _Inspector Zangary indicated
that this was sufficient coverage. However,.'the shct could not be seen,
and after the blast two boys on trailbikes came out >f the nearby woods,
and Mr. Thrush stated that when he asked Mr. Zangary how he would characterize
the event if the boys had ventured into the shot area and been killed,
Mr. Zangary replied that it would have an "accident" (Tr. 464).

104

Mr. Thrush confirmed that Mr. Lucas was not reprimanded or disciplined
by Austin Powder and he stated that had he been there he would have acted
just as Mr. Lucas did in firing off the shot (Tr. 469-470). Mr. Thrush
believed that the "sphere of danger" on the day of the accident was about
200 feet from the blast site, and that wo~ld be the area he would have
been concerned about keeping secured (Tr. 471). Mr. Thrush confirmed
that he has had some 30 years experience working in coal mines and gas
fields "shooting gas and oil wells and stripping" (Tr. 472).
The Jurisdictional Question
Apart from any factual disputes concerning the alleged violations,
there is no jurisdictional dispute between MSHA and the respondent Doan
Coal Company. Doan Coal is a Pennsylvania strip mine operator and it
concedes that its mining operations are subject to the Act and to MSHA's
enforcement jurisdiction. The jurisdictional dispute in this case is
between MSHA and the respondent Austin Powde'r Company.
The Nature of Austin Powder's Business
·In its posthearing brief, Austin Powder states that it is a manµfacturer
and supplier of explosives to a number of different industries, including
the coal mine industry (Tr. 466, 507). To ensure the safe use of its
products and safety of both its customers and the general public, Austin
Powder, at no charge, provides technical expertise and advice to those
customers who desire such assistance (Tr. 465, 476). As one component
of the assistance which is available to the customer, Austin Powder has
licensed blasters who may be loaned to a customer upon request,··but-"
Austin Powder is not obligated to provide a blaster to a customer, nor
is there any guarantee that at any particular time a blaster will be
available (Tr. 508). Austin Powder maintains that this situation must
be contrasted with that of a contract blaster who enters into a contract
with an individual to perform blasting services. In such arrangements,
the contract blaster is contractually obligated to provide blasting
services and is paid for such services. In contrast, there is no
obligation whatsoever upon Austin Powder to provide blasting services
for customers, and if a blaster is made available no charge is paid for
such service (Tr. 465-466).
Austin Powder maintains that in instances where a customer desires
to utilize Austin Powder's technical expertise, the parties enter into
a service agreement. Under the agreement, Austin Powder agrees to lend
the customer the temporary use of Austin Powder's employees and equipment
free of charge (Tr. 465, 476). In return, Austin Powder states that
the customer agrees that while it is using such employees and equipment,
the employees are under the sole supervision and control of the customer
and that all work and services performed by such individuals are at the
sole risk and responsibility of the customer.
Austin Powder states that on January 19, 1981, it entered into a
service agreement with the respondent Doan Coal (A.P. Exh. No. 11).

105

Doan Coal would periodically order explosives from Austin Powder and
would utilize Austin Powder's technical expertise to detonate th~
explosives it purchased from Austin Powder. However, Austin Powder
asserts that Doan Coal determined the number o.f holes to be drilled,
the location of the holes, and the holes' depth, and the coal company
drilled all the holes (Tr. 340-342, 366, 410-411). Moreover, Doan Coal
decided when to plast and had the right to control the details of the
blast (Tr. 410-411).
Whether Austin Powder is an "Operator" within the Meaning of the Act
Austin Powder maintains that before MSHA can assert jurisdiction
in this matter it must: establish that Austin Powder is an "operator"
within the meaning of 30 U.S.C. 802(d). Austin Powder states that it
is abundantly clear, and that MSHA has conceded.as much, that Austin
Powder does not own, lease, operate, control or supervise a coal mine.
Although MSHA does allege that Austin Powder was an independent contractor
performing blasting services for Doal Coal. on the day in question and as
such was subject to MSHA's jurisdiction, Austin Powder asserts that
MSHA's position is wholly untenable because the clear evidence establishes
Austin Powder was not an independent contractor performing blasting services.
Austin Powder argues that before it can be found to be an independent
contractor under the Act, MSHA must establish the existence o.f a contract
between Austin Powder and Doan Coal whereby Austin Powder contracted to
provide services for Doan Coal. Austin Powder maintains that MSHA has
failed to introduce any evidence t~at such a contract existed. In fact,
it states that MSHA has not-· even tried to establish the existence- of such
a contract.
Austin Powder maintains that it is not, and was not a contract blaster,
has no drilling capacity, and does not contract blasting services. Rather,
it is a manufacture·r and supplier of explosives to numerous industries,
including the coal industry, and that it entered into a sales agreement
with Doan Coal in which Doan Coal purchased a quantity of explo~ives.
To ensure the.safe use of its products, Austin Powder, pursuant to a
service agreement voluntarily entered into ·by the parties, allowed Doan
Coal to draw upon its technical expertise to assist in detonating the
explosives. The agreement is a legally binding, valid document whereby
Austin Powder loaned Doal Coai its employees for Doan Coal's use. Citing:
New River Crushed Stone v. Austin Powder, 210 S.E.2d 285 (N.C. 1974);
Fralin v. l\merican Cyanamid Co., 239 F. Supp. 178 (W.D. Va. 1965); Oregon
Portland Cement Co. v. DuPont, 118 F. Supp. 603 (D. Ore. 1953); Hercules
Powder Co. v. Campbell & Sons Co., 144 At!. 510 (Md. App. 1929). No charge
was made for this technical expertise (A.P. Exh. No. 11; Tr. 466, 512).
Moreover, Austin Powder states that it had no obligation under the service
agreement to provide such technical service, and if its people were not
available, Doan Coal could not require that Austin Powder furnish blasters.
In short, Austin· Powder maintains that the loaning of its employees to
Doan Coal to ensure safe use of its product was a gratuity and not required
by contract.

106

Austin Powder. concludes that since the record is absolutely void
of any evidence even suggesting the existence of an implied or express
contract between Austin Powder and Doan Coal requiring the provision of
services, MSHA has failed to establish Austin Powder was an independent
contractor as defined by the Act. Since Austin Powder does not otherwise
fall within the Act's definition of "operator," it maintains that it
was not subject to MSHA's jurisdiction.
Austin Powder argues that on the facts of this case, those individuals
who allegedly conunitted the cited violations were, as a matter of law,
Doan Coal Company employees, and not employees of Austin Powder. In support
of this argument, Austin Powder argues that the express terms of the service
agreement clearly and unambiguously state that while the Blaster Lucas
and his crew were on Doan Coal property they were for all intents and
purposes Doan Coal employees. Doan Coal had the sole right to supervise
and control the activities of Lucas and his crew, and Doan Coal performed
all the drilling and decided how many holes to drill, the depth of the
holes and the location of the holes (Tr. 410). Doan Coal had the right
to supervise the details of the blasters' work and when a question arose,
the blaster looked to Doan Coal for direction (Tr. 411).
Austin Powder asserts further that Courts have long held that the
paramount consideration in determining whether an independent contractor or
an employer-employee relationship exists is who has the r'ight to control
and supe!vise the details of the work activity. See ~Joint Council
of Teamsters No. 42 v. N.L.R.B.,. 450 F.2d 1322 (D.C. Cir. 1971); Assoc.
Independent Owner-Operators, Inc. v. N.L.R.B., 407 F.2d 1383 (9th Cir. 1969).
In this case, given the service agreement's clear languag~ and the a~tual
uncontradicted testimony of the witnesses, Austin Powder concludes that
it is clear .that Lucas and his crew were., as a matter of law, Doan Coal
employees and accordingly, Austin Powder cannot be held subject to
MSHA's jurisdiction.
Finally, Austin Powder maintains that MSHA's latest policy memorandum
concerning the identification of independent contractors under the Act
makes it clear that Austin.Powder falls outside the scope of an "operator"
as defined by the Act. Under this memorandum, before a company will be
considered an independent contractor for the purposes of the Act, it must,
inter alia, perform both drilling and blasting services, the precise services
which a contract blaster provides. Austin Powder notes that it is significant
that MSHA chose the conjunctive in this subsection, but in all other
,
subsections where more than one factor was listed chose the disjunctive,
thereby clearly intending to include the definition of an independent
contractor only to those companies which provide both drilling and blasting
services. Since it is not a contract blaster, Austin Powder concludes
that it falls outside of MSHA's own criteria for determining whether an
individual is an independent contractor and is not subject to MSHA's
jurisdiction.

107

MSHA' s Arguments
In its po~thearing brief, MSHA denies Austin Powder's assertion
that the its service agreement with Doan Coal somehow transforms blaster
Jeffrey Lucas into an employee of Doan Coal under Doan's direct control
and supervision. MSHA maintains that the evidence in this case supports
the opposite conclusion. Namely, that the blaster, Jeffrey Lucas, was
a full time employee of Austin Powder, whose services were paid for by
Austin Powder as part of the price from selling explosives to mining
companies.
MSHA argues that as a private business, Austin Powder has a right
to conduct its business in a.manner which it finds the most convenient
in accordance with general industry practice, and that MSHA has no
objection to "service contracts" per se, between companies providing
services to coal mining companies, like Doan Coal. However, MSHA
maintains that it should be obvious that the Secretary of Labor and
the Federal Mine Safety and Health Review Commission are not bound
to accept, on face value, the so called "gratuitous nature" of a
service contract, especially if its intended purpose is to limit liability
which would otherwise be imposed under the Act. MSHA asserts that to
follow Austin Powder's viewpoints with regard to its attempt to award
liability in this matter.would amount to a total disregard of the
Congressional intent expressed in the·l977 Mine Act, of placing liability
for violations according to actual conduct.
MSHA maintains that a review of the service contract entered into
between Austin Powder and Doan
Coal indicates that.. it has little .._,,,.to ..··do
-·
with any actual services performed by Austin Powder, and that it is
merely an indemnification agreement which Austin Powder requires its
customers to sign prior to allowing them to use its blast.ing services.
MSHA states that the customer is really not given any choice and is
required to assume all the risks and· responsibilities inherent in an
extremely dangerous occupation.
MSHA points to the fact that Jeffrey Lucas, the blaster, testified
that he considered himself a full time employee of Austin Powder, was
never told anything to the contrary, believed that he was in charge of
the blasting area, and acknowledged that it was up to him to make sure
that everyone in the blasting zone was notified (Tr. 29). It was his
function to check the wiring for the explosives prior to the blast and
notify members of his crew when to give the signal that a blast was going
to occur, after he checked the pit area visually.
MSHA also points out that Mr. Lucas' presence at the Doan Strip Mine
was long term and continuous, and that Mr. Lucas testified that at least
50% of his blasting work was at the Doan Strip Mine and he was generally
on the property four to five times a week for up to five hours a day.
Also, Mr. Lucas usually brought a crew of men with him to assist them.
with the blasting operations and proceeded directly to the pit area
without waiting for any instructions from the supervisory personnel
employed by Doan Coal. Under the circumstances, MSHA submits that

108

Austin Powderis argument that blaster Lucas was under the direct
control of Doan Coal is totally without merit and should be rejected.
In addition, MSHA submits that Austin Powder's attempt to limit its
liabilities and responsibilities under the Mine Act is against public
policy. Recognizing that private parties can contract between themselves
to limit their respective liabilities to each other, MSHA asserts that
the courts have frowned on attempts by private parties to limit their
public duties under Federal law and generally will not enforce ageeements
of that nature. MSHA concludes that companies like Austin Powder who
perform vital services for mining companies on mine property have specific
responsibilities and liabilities under the 1977 Mine Act, and that their
statutory obligations cannot be contrac~ed away or limited since the
duty to the public is paramount. Citing: Southwestern Sugar and Molgasses
Company, Inc. v. River Terminals Corporation, 360 U.S. 411 (1959),
Headnote 9, Northwest Airlines, Inc. v. Alaska Airlines, Inc., 351
F.2d 253 (1965), and Conco, Inc. v. Andrews Van Lines, Inc., 526 F.Supp.
720 (1981).
Findings and Conclusions
The Jurisdictional Question
Section 3(d) of the Act defines "operator" as "any owner, lessee,
or other person who operates, controls, or supervisors a coal or other
mine or any independent contractor performing services or construction
at such mine;". (emphasis added) •
Section. 3(g) defines "miner" as "any individual working in a coal
or other mine''., and section 3(h) (1) defines "coal or other ·mine" as
including, inter alis, "lands, excavati·ons, structures, facilities,
equipment, machines, tools, or other property * * used in, or to be used
in * * * the work of extracting such minerals from their natural deposits

* * *"

The legislative history of the Act clearly contemplates that
jurisdictional doubts be resolved in favor of Mine Act jurisdiction.
report of the Senate Committee on Human Resources states:

The

The Committee notes that there may be a need to
resolve jurisdictional conflicts, but it is the
Committee's intention that what is considered to be
a mine and to be regulated under this Act be given
the broadest possible interpretation, and it is the
intent of this Committee that doubts be resolved in
favor of inclusion of a facility within the coverage
of the Act.
S. Rep. 95-181, 95th Cong., 1st Sess. (May 16, 1977) at 14: Legislative
History of the Mine Safety and Health Act, Committee Print at 602 (hereinafter cited as Leg. Hist.).

109

Doan Coal's mine engineer and safety director Ray Mitchell testified
that Doan conducts its own drilling of the blas·t holes, and determines the
specific locations of the holes, including the depth and diameter of
the holes. After the drilling is completed, Doan then calls Austin
Powder to come in and do the actual blasting. If Doan Coal decided not
to blast on any given day, it would send Austin Powder away and instruct
them to come back another time. Doan has also used other blasters,
and if Doan had a preference it may determine the direction that it wishes
the blast to go. While Doan may prefer that the blast be directed away
from equipment, the direction of the blast would be left to the blaster
(Tr. 340-342). Mr. Mitchell .stated that during his three and one-half
years at the mine Austin Powder conducted 90 percent of the blasting
which was done at the mine site (Tr. 353). The only thing he is required
to do insofar as Austin Powder's employees are concerned is to insure
that they have signed the hazard recognition sheet before they enter the
mine site (Tr. 355).
Blaster Jeffrey Lucas confirmed that Doan Coal Company determines
the number of blast holes to be drilled, as well as the diameter and depth
of the holes. Doan Coal also determines when the holes are to be loaded
and then notifies Austin Powder. Should a hole be plugged, Austin Powder
will attempt to take care of the problem, but "if there is anything out
of the ordinary Doan Coal will tell us how they want things done" (Tr. 411).
Mr. Lucas testified that he considered himself to be an employee of
Austin Powder Company and has never considered himself to be employed
by Doan Coal (Tr. 416). None of his supervisors have ever advised him to
the contrary, and he consiq~red the services he was performing aj:,. tge mine
to be an important part of the mining process. He conceded that he
was at the Doan site performing a service, but he denied that Doan Coal
paid for his services. He explained this by stating that Doan buys
powder from Austin and he makes up the billings for the shots and there
is no specific charge for his services. He had no knowledge that the
charges for his services, which are paid for by Austin, are included
in the price that Doan pays for the powder _which is used (Tr. 418).
Austin Powder's technical representative Ray Thrush identified
exhibit AP-11 as the "service agreement" between Austin Powder and Doan
Coal, and he confirmed that he signed it on behalf of Austin Powder,
and that it was the only·agreement between the two companies. */
He denied that Austin Powder is a' "contract blaster", and he defined
~/
A copy of the "Service Agreement" is included herein as an
attachment to this decision, and the docu~ent is incorporated herein by
reference.

110

that term as someone who "goes and shoots for other people" (Tr. 466).
When asked· to explain the difference between what Austin Powder does
and what a "contract blaster" would do, he stated "we manufacture and
sell and we assist the customer in his blasting procedures" (Tr. 466).
Mr. Thrush indicated the agreement was in effect in the summer of 1981,
and he indicated that Austin Powder's invoices and price quotations
to a customer is for the amount of powder used and that there is no
separate charge for blasting. He could not state for sure whether or
not other powder manufacturers have similar agreements.
Mr. Thrush confirmed that the term "blaster" means "the man who
is in charge of detonating the explosive, securing the area, making sure
everything is done right", and confirmed that his technical expertise
is relied upon in firing the shot and removing the overburden. He also
indicated that as part of the selling of the powder, Austin Powder
provides its technical experience or advice in detonating the powder
which it sells, and the electronic detonating devices are owned by Austin
Powder (Tr. 466-468). He also confirmed that the blaster is responsible
foe the safety of the blast (Tr. 468).
Mr. Thrush could not state how much business Austin Powder did with
Doan Coal in 1981, and he had no knowledge as to any prior business volume
between the two companies. He indicated that Austin Powder probably
has no more than ten blasters working in the State of Pennsylvania, and
that customers are not charged for their services; When asked about the
cost of trucks and blasting equipment, he answered "the same setup"
(Tr. 476). When asked whether these costs are passed on to the customer
as part of the purchase price of the dynamite he replied YI guess" and
"that is very possible" (Tr. 4 77).
With regard to the service agreement, Mr. Thrush stated that a new
one is executed every year, and that it is not done on a job-by-job
basis. The services performed under the agreement are on a continuing
basis for a year (Tr. 477). Mr. Thrush indicated that when he worked
for the National Powder Company, there were no such service agreements
in effect, but he did not know why "because I was not involved" (Tr. 478).
Mr. Thrush confirmed that the Austin Powder agreement is signed every
year on the advice of the company's counsel (Tr. 479).
Contrary to Mr. Thrush's testimony that his previou~ employer did
not have- a "service contract" with its customers, Austin Powder's counsel
asserted that "virtually all" of its competitors have such contracts
and that "it is an industry practice" (Tr. 512). Counsel also contended
that when the blaster, Mr. Lucas, goes to Doan Coal's property to perform
his blasting chores under the service agreement he is Doan Coal Company's
employee (Tr. 513-514). However, counsel conceded that Austin Powder
still.pays alJ. of Mr. Lucas' regular benefits, such as health coverage
for his family (Tr. 514). With regard to the right of Doan Coal to
supervise Mr. Lucas, Austin Powder's counsel took the position that mine
operator Doan believed that he may exercise supervision or control over

111

anyone that is on his property, and that Mr. Lucas is not an employee
·of Mr. Doan for lawful purposes until he comes on the property (Tr. 515).
With .regard to .any supervisory control by mine operator Doan over blaster
Lucas, counsel stated as follows (Tr. 515-519):
ADMINISTRATIVE LAW JUDGE KOUTRAS: When he comes on
the property to do blasting Mr. Doan is not sitting
there looking over his shoulder as to how he loads
the ho.les and wires up the shots, is he?
MR. WALL: I am not aware that he commonly does.
He could if he wanted to.
ADMINISTRATIVE LAW JUDGE KOUTRAS: Do you mean that
he could supervise Mr. Lucas in the manner he wires
up and loads the shots and puts them off?
MR. WALL:

He certainly could.

ADMINISTRATIVE LAW JUDGE KOUTRAS: Why doesn't Mr. Doan
do the blasting himself? He could save a little bit
of money.
MR. WALL: Mr. Doan does not want to do the blasting
anymore. He has other things to do. He started ·out
with a small operation. Now he has some ten pits. He
has a larger operation and has other people doing lots of
things that he us_ed to do himself.
ADMINISTRATIVE LAW JUDGE KOUTRAS: Mr. Wall, if you know,
with regard to the activities of Austin Powder, is this a
connnon arrangement in strip mining in this area to have
the manufacturer of the explosives do the actual blasting
for the mine operator?
MR. WALL: It is not at all unusual, no. I cannot say
that it is the normal practice in every instance. Be·cause
I .am not familiar with the practices here. But I know
that most of the larger manufacturers also have similar
arrangements.
ADMINISTRATIVE LAW JUDGE KOUTRAS: Again, I am not making
light of this service agreement. In the section where
it says Austin Powder Company is not engaged in blasting
:.,rork. How can one say that Austin Powder is not engaged
in blasting work when, in fact, they set the wheels in
motion? They dispatch three people when the call comes.
Three people, vehicles, equipment and the product come.
They charge the holes, the blast goes off. Now~ you
say that is not blasting? Is that blasting work, setting
the charge and blasting?

112

MR. WALL:

Certainly.

ADMINISTRATIVE LAW JUDGE KOUTRAS:
MR. WALL:

That is blasting work?

Absolutely.

ADMINISTRATIVE LAW JUDGE KOUTRAS: Under this service
agreement the blasting work is performed by Doan
not Austin Powder?
MR. WALL: That is correct. It is an arrangement which
is made in our industry as well. It is not uncommon for
example, for heavy equipment with its operator to be loaned
to another employer. A crane, for example, could be
loaned to some particular employer with its operator for
use during a particular period of time.
ADMINISTRATIVE LAW JUDGE KOUTRAS: Yes, but usually in
those kinds of arrangements they pay for them, do they not?
In this case had MSHA opted not to cite Austin Powder as a
respondent in this case and decided only to go against Doan
Coal Company and issued the citations only to Doan and sought
the maximum civil penalties in this case on the theory that
Mr. Lucas as an employee of Doan Coal Company was negligent
and, therefore, that negligence is imputed to his employer
Doan Coal Company. How do you think Mr. Hanak sitting
next to you would be arguing in that case?
MR. WALL:

I cannot speak to that.

ADMINISTRATIVE LAW JUDGE KOUTRAS: Mr. Hanak, does your client
realize that this service agreement, when those people and
equipment come in the Government would consider those people
to be .his employees from now on?
MR. HANAK: We have never thought of the impact as far as
any criminal action like here.
During the course of the hearing, Austin Powder's counsel indicated
that the company sells explosives "in about 37 states" (Tr. 507). He
also indicated that in terms of sales volume, Austin Powder ranks second
or third in terms of national sales volume, but emphasized the fact that
there are only "a handfull of explosives manufacturers" (Tr. 507).
During the hearing, Doan Coal's counsel took the position that in
the event that it is decided that Austin Powder is not subject to MSHA's
enforcement jurisdiction and are found not to be liable because of the
service agreement, this would serve as a basis for immediately imputing
Austin Powder's liability to Doan Coal simply because of the agreement
(Tr. 479). Austin Powder's response was that "Austin is not within the
reach of MSHA's inspectors because they are not in the mining business
and they are not subject to the act as operators or independent contractors"
(Tr. 480).

113

Austin Powder's counsel agreed that the reason Doan Coal Company
utilizes Austin Powder's expertise rather than conducting its own
blasting operations is that Doan Coal would prefer to have "an expert"
do the job rather than to subject itself to possible citations for
violations of MSHA's blasting regulations (Tr. 508-509). Austin Powder's
counsel also conceded that it was not unique for a mine operator to
utilize experts in the field of drilling or blasting (Tr. 509). In
summarizing his position concerning the blaster's "independent contractor"
status in this case, Austin Powder's counsel argued as follows (T'r. 510-512):
MR. WALL: There are two reasons. One is that under
the service agreement it is the intention of the
parties that Mr. Lucas and others be loan servants in
essence of Doan Coal. Loan servants is a well established
common law concept. It has been accepted in the industry
in every state. The normal detriment of the status of the
particular individual is the intention of the party at the
time. That intention is clearly explained here in that
document. The intention of the parties is that Mr. Lucas
be, for lawful purposes, freed as an employee of Doan
Coal Company at the time so that Austin Powder as a
corporate entity would not have liability.
Mr. Lucas while at Doan Goal Company is under the
control of Doan Coal Company. When Mr. Lucas is at a
mine operator's property Austin Powder does not· have
control over those operations. It does not have insurance for
those operations;· It does not anticipate having liabi·Hty
for those operations and seeks to-be protected from that, is
willing to furnish that service to a customer in exchange
for the customer's agreement to be responsible.for any
of the actions and to be responsible for that employee
while he is on the property.
The second factor is that· there are very few guidelines
in the statute for the regulation for what constitutes an
operator. One goes back to the history of the 1977
Amendment of the Bituminous Coal Association's argument.
Because they were upset with construction companies who
were coming on to their property and committing violations
for which the mine operators were held responsible. If one
looks at the limited guideline that is available and that
limited guid~line is in the regulation. The regulatory
definition of an operator there is that there is a requirement that there be a contract for services.
In this instance there is no such contract wherein
Powder is contractually bound to provide any
services. Hence, within the strict technical means of

Au~tin

114

that regulatory definition from MSHA Austin Powder
is not in the position as a contract driller who
comes in and for a fee will drill holes. Some companies
use contract blasters. That is a common practice.
Some use contract drillers. Some use consultants
and a variety of things. In each instance normally
there is a charge for those_people and they come in
on a contract basis and are paid for· this. This is
not an arrangement of that type.
I take note of the fact that MSHA considered Austin Powder as an
"independent contractor" subject to the Act, and in fact assigned Austin
Powder a contractor Identification Number. While the assignment of such
an identification number does not ipso factor bestow "contractor" status
on any company, I find nothing in the record to suggest that Austin
Powder has protested MSHA's characterization of its ~ctivities in this
regard. MSHA's Independent Contractor regulations found in Part 45,
Title 30, Code of Federal Regulations, section 45.1 et~-, defines
an "independent contractor" as follows at section 45.2(c):
"Independent Contractor" means any person,
partnership, corporation, subsidiary of a corporation, firm, association or other organization that contracts to perform services or
construction at a mine; * * *
Although Part 41, of the regulations dealing with the application
of the requirements of section 109(d) of the Act that mine operators-·
submit certain "legal identity" information to MSHA does not apparently
cover "independent contractors", Part 45 does. Further, other regulatory
requirements such as those found in Parts 48 and 50, Title 30, Code of
Federal Regulations, require contractors to comply with certain training
and recordkeeping requirements of the law. As a matter of fact, in this
case Austin Powder's technical representative Ray Thrusy is an MSHA
certified blasting instructor, and the blaster Lucas testified that he
regularly performed blasting at Dean's mine. This being the case, I
assume that Mr. Lucas is "MSHA certified" to perform the duties required
by blaster's under Part 77, Title 30, Code of Federal Regulations, and that
Mr. Thrush also has_ MSHA's stamp of approval to train blaster's in
accordance with MSHA's requirements.
In addition to the foregoing, I take note of the fact that in response·
to my Order directing MSHA to submit any evidence concerning Austin Powder's
history of prior violations, MSHA submitted a copy of a Decision and Order
by Judge Kennedy on November 26, 1980, approving a settlement between
Austin Powder and MSHA providing for the payment of $20,000, for five
violations served on Austin Powder in 1979 for five violations of several
mandatory blasting standards found in Part.56, Title 30, Code of Federal
Regulations. Although a copy of the "compromise settlement agreement"
executed by Austin Powder's counsel Wall and MSHA's counsel contains a

115

"disclaimer" as to MSHA's jurisdiction, counsel Wall nonetheless indicated
his understanding that "the agreement to pay.the proposed settlement
amounts will be. considered a history of prior violations in future
proceedings (if any), brought by the Secretary.of Labor under the provisions
of the Mine Safety and Health Act" (pg. 2, settlement agreement), MSHA
v. Austin Powder Company, Docket No. YORK 80-82-M.
Although the aforesaid "settlement ~greement" also contains a
statement that it is the "intent of the parties" that the settlement
approved by Judge Kennedy shall not be "offered, disclosed, used or
admitted in evidence" in future litigation involving the parties except
for the limited purpose of showing prior history by Austin Powder, I am
not bound by the parties intent in that case. It seems to me that the
payment of $20,000, by a company who vigorously disclaims it is covered
by the Act is somewhat contradictory. If Austin Powder is not subject
to the Act as a mine operator or independent contractor, the question
of prior history is totally irrelevant. Further, in at least one decision
concerning the approval by a judge of a settlement entered into by the
parties, the Commission has not recognized the use of "disclaimers"
or "exculpatory language" in its review of approval or disapproval of
settlements in such settlement negotiations when it appears that the use
of such language is for the purpose of insulating an operator from further
enforcement jurisdiction. See: MSHA v. Amax Lead Company of Missouri, 4
Ft1SHRC 975 (1982). See also, Co-Op Mining Company, 2 FMSHRC 3474
(1980), where the Commission rejected a Judge's approval of a settlement
when it appeared that no violation of any mandatory standard had occurred.
In my view, Austin Po~~er is more than a merE? sales conduit __fo~.
blasting powder and explosives used in .the removal of overburden by
mine operators for the express purpose of mining the coal which lies
immediately below of the surface. Austin Powder is directly involved
in the coal removal process when it provides the blaster, trucks, equipment,
and trained personnel to do the actual blasting and removal of overburden.
Under these circumstances, Austin Powder is an independent contractor
within the reach and jurisdiction of the 1977 Mine Act. Austin is no
different from other independent contractors who are retained by coal
companies for the express purpose of utilizing' their expertise and
experience in different phases of the coal extraction process. For example,
a mine operator may retain the services of a contractor to sink mine shafts
or to construct other necessary facilities such as cleaning plants,
tipples, or even bathhouses.. or to perform certain drilling or mine
excavation work. As a matter of law', these contractors are "operators"
under the Mine Act's definition. On the facts of the instant proceedings,
the citations issued to Austin Powder described conditions or practices
by ·an employee of Austin Powder relating to the work that Austin Powder
was engaged to perform. As a matter of fact, Austin Powder was directly
involved in the abatement of the citations attributed to its alleged
violations.
Notwithstanding Mr. Thrush's "loss of memory" concerning the matter
of who absorbs the costs of the services provided by the blaster, and
.•

116

Austin '·s assertion that there is no charge for these services, there
is a strong inference in this case that these costs are included in the
price of the explosives and powder used by Doan Coal Company. I assume
that Austin Powder is in business to make money, and I assume further
that its success has not come from "free services". In any event, even·
if Austin gave its powder away I would still conclude that it was engaged ..
in provided a blasting service, albeit gratuitously.
It seems clear to me from the record in this case, that contrary
to any intent on the part of the parties as to the status of the blaster
Lucas, he is in fact an employee of the Austin Powder Company. It is
also clear to me that on the day of the accident in question Mr. Lucas
was performing an important service at the Doan Mine site and that
this service was directly related to the extraction of coal. While it
may be true that anyone on Doan's mine property is subject to the "control"
of the mine owner and operator, this is no different from the "control"
that any land owner of businessman exercises over persons who come onto
to his property or enter his business establishment. The critical question
here is whether Doan Coal exercises supervision and control over Austin
Powder's blas·ter while the blaster is performing his blasting duties.
I conclude and find that while engaged in the work of the actual
blasting and removal of the overburden on the day of the accident, the
blaster, Mr. Lucas, was performing his duties as a "miner" as defined by
section 3(g) of the Act, that he was not under the control of Doan Coal
Company while performing these duties, but rather, acted as an employee
and agent of the Austin Powder Company. In addition, I also find and
conclude that as the licensed blaster Mr. Lucas acted in.dependentl)ifrom any direct supervision or control by Doan Coal Company, and that
in his capacity as the licens.ed blaster he exercised direct supervision
and control over his crew, all of whom are in the employ of Austin Powder,
and that he also had direct control of the trucks and equipment owned
by Austin Powder and used in the blasting process. Further, Mr. Lucas
had full responsibility for the blast, including the charging of the
holes, and the final detonation. ·He was also responsible for insuring
the safety of his crew and other miners, and he issued the order to shut
down all mine equipment immediately preceding the blast. As a matter
of fact, Doan's own safety director Mitchell testified that once the
blasting crew comes onto mine property, the only contact he has with them
is to make sure that they have signed a "hazard recognition" form.
After careful consideration of all of the evidence and testimony
adduced in this case with respect to the jurisdictional question, including
the arguments advanced by the parties in support of their respective
positions, I conclude and find that for the purposes of this proceeding,
Austin Powder Company is an independent contractor who was performing
blasting services at the mine site in question on the day of the accident
and as such is, as a matter of law and fact an "operator" within the meaning
of the Act and is therefore subject to the Act as well as to MSHA's
enforcement jurisdiction. I reject Austin Powder's "common law loan servant"

117

argument, and ·I also reject its arguments that the "service agreement"
fixes the parameters of MSHA's enforcement jurisdiction, and that the
agreement places Austin Powder beyond the reach of the Act. I also
reject the notion that before Austin Powder can be considered an
.
independent contractor there must
first be in existence an implied
or express contract between Austin Powder and Doan Coal requiring the
provision of services. It seems clear to me on the facts of this case
that Austin Powder did in fact provide rather extensive and continuous
services for Doan Coal Company, and that the services provided were
directly related to the mining of coal. Austin's attempts to limit its
liability through the use of a "service agreement" may be recognized
as valid as between the parties, but I reject it as a means of absolving
Austin from any responsibility or accountability under the Mine Act.
I accept MSHA's arguments that acceptance of Austin Powder's attempts
to limit its liability by means of the "service contract" would amount
to a total disregard of the Congressional intent expressed in the Act
of placing liability for violations according to .actual conduct, and
would be contrary to public policy.
Fact of Violation - Citation No. 1041345, August 6, 1981, 30 CFR 77.1303(h)
Citation No. 1041345 was issued because the inspector believed that
Mr. Lucas failed to give "a proper warning according to the posted requirements", and that his asserted failure to do so constituted a .violation of
section 77.1303(h). The first sentence of this standard states that
"Ample warning shall be given before blasts are fired".
The requirement state~ in section 77 .1303 (h) . is that an ame.le warning
be given before a shot is fired. MSHA's position in this case appears
to be that by failing to follow the blasting warning signal system which
wa~ posted on a sign on the road coming on.to the mine site, Mr. Lucas
failed to give the kind of warning required by the standard. In short,
MSHA contends that the signal system posted on the sign was required to
be followed by Mr. Lucas, and when he failed to follow it he violated
section 77.1303(h). A short answer to this argument is that the standard
itself does not provide for any specific signals to be given. ·It. seems
to me that since blasting and the use of explosives is inherently hazardous,
MSHA should as a minimum promulgate a standard that makes it absolutely
clear· as to what is required. The use of such broad language as "ample
warnings" leaves much to the imagination, and the instant case is a classic
example of this. MSHA's counsel conceded during the hearing that the
cited regulation does not require the use of any particular signal system,
the posting of signs, barricades, or road guards for the purpose of warning
persons about blasting.
MSHA's counsel conceded that there is no specific regulatory standard
as to what constitutes a "proper" or "ample" warning signal prior to the
detonation of any shot (Tr. 42). His position is that if a sign gives
sufficient warning of a pending blast and gives the mine operator's and
contractor's emp~oyees time to remove themselves from a blast area, if
that sign is followed, then ample warning is given (Tr. 43). Given the

118

facts in this case, MSHA's position appears to be that since the accident
victim was killed when struck by flyrock from the blast, the signal which
was given by the blaster was obviously per se inadequate to properly warn
the victim.
Section 77.1303(h) only requires that an ample warning be given.

The term "ample warning" is not further defined, and MSHA's counsel conceded
that the question as to what constitutes an "ample warning" within the
meaning of the standard "has to be determined by the facts" (Tr. 78).
Further, since the standard itself does not require any particular form
of warning such as signs, flags, barricades, or the sounding or horns,
MSHA's arguments that the blaster was required to follow the signal system
posted on a sign which was located on a mine road leading onto the property
is rejected.
MSHA's counsel conceded that there is no requirement for the use of
blast warning signs, and there is no requirement that such 3: sign be
posted on the mine roadway (Tr. 451-452). As a matter of fact, the sign which
was on Doan's property and which has been referred to in this case was
in fact a sign approved or furnished by the Office of Surface Mining (OSM),
U.S. Department of the Interior (Tr. 450). However, counsel took the
position that if the sign is posted, it becomes the blast warning plan,
and the operator should follow it (Tr. 452). Absent any showing that
the mine operator or contractor in this case were required by any MSHA
standard to adopt a signal system and post it on such a sign, I cannot
conclude that Mr. Lucas' failure to do so ipso facto const·itutes a
violatio~ of the warning requirements of the cited regulation.
MSHA
has conceded as much when it agreed that the question of what constitutes
an "ample warning" has to be determined by the facts of any given case.
Further, I believe that the question as to whether any blasting warnings
are "proper", as charged in the citation in question, is a highly subjective
matter which is not even addressed by the regulatory language in question.
What may be "proper" to an experienced and licensed blaster who is at
the blast site supervisinga shot, may not be "proper" in the judgment
of an inspector who is called upon (in hindsight) to render a judgment
after an accident such as the one which occurred in this case.
In a case decided by Judge Broderick on October 13, 1981, MSHA v.
Domtar Industries, Inc., 3 FMSHRC 2345 (1981),
a salt mine operator
was charged with a violation of section 57.6-175, an underground blasting
regulation, the first sentence of which is identical to the first sentence
of &ection 77.1303(h). In that case two miners were killed in a blasting
accident, and MSHA charged that the blasting crews had failed "to use
effective voice communications between themselves to provide ample warning
when firing blasts". Although Judge Broderick ruled that since two miners
were killed it was obvious that they were not warned, he also observed
that oral communication is not the only way to provide "ample warning" in
compliance with the standard, and he rejected MSHA's suggestions to the
contrary.

119

MSHA's conclusions at page nine of its posthearing brief that "the
blast warning signals given by the blaster apparently varied from day to
day" are unsupp"orted conclusions by counsel and he cites no transcript
references or testimony in this regard. Further, MSHA's reliance on the
opinion by State Inspector Williams that the warning signals used by the
blaster on the day of the accident did not constitute a "proper warning"
to miners is rejected. I conclude and find that the respondents in these
proceedings presented credible evidence and testimony that Mr. Lucas
did all that could reasonably be expected of him on the day in
question to insure that miners were apprised of the fact that there would
be a shot or blast, and my reasons for these findings follow.
Mr. Lucas' unrebutted testimony is that five-to-ten minutes elapsed
between the time the shot was fired and actually detonated. During this
time a call was placed over the mine radio communications system advisi~g
the personnel in the scale house, as well as the mine office, that the
blast would be set off and that all equipment should be shut down. In
addition, prior to the actual detonation, three 20 second blasts of an
air horn were sounded, and a siren signal was sounded for at least a
minute prior to the blast.
David Potempa testified that when he arrived on mine property some
five minutes before the blast, he knew there was going to be a blast
because he had seen the blasting crew earlier in the day, and he went
directly to the scale house. He also testified that he knew the shot
would be fired because he heard the warning signals go off five minutes
before the blast and one minute before it was actually detonated. He
believed that he received adequate warning, did not feel that he··-Was· in
danger, and believed that the signals sounded on the day in question were
the same as those posted on the signal sign by the mine roadway.
Crusher operator Albert Bloom testified that ten minutes before the
blast he received notice over the company radio installed in his loader,
and he received the notice from the dragline operator who instructed him
to shut the equipment down. Since the crusher where the accident victim
Alvatrona was working had no radio on it Mr. Bloom signaled him by hand
to shut the crusher down, and Mr. Alvatrona complied. Mr. Bloom indicated
that the hand signal which he gave to Mr. Alvatrona to shut down the crusher
was one that is regularly used and it is a procedure that everyone knew
and followed. As a matter of fact, he indicated that when he observed
truck driver Martz driving into the area he signaled him to stop his truck
and to shut it down. Once the loader and crusher were shut down, Mr. Bloom
observed Mr. Alvatrona heading toward the scale house and he assumed
that he was going there .and did not speak to him further. Mr. Bloom
also confirmed that company policy calls for personally advising all
employees of an impending blast over the radio communication system, and
that five to seven or ten minutes elapsed between the time he received
the radio notice and the actual blast. He also confirmed that it was
normal operating procedure to shut down all equipment as soon as a notice
of a blast is received, and if any of his fellow workers do have radios,

120

he personally sees to it that they are notified. Further, Mr." Bloom
indicated that in addition to personal notification, he also heard three
airhorn signals sounded immediately before the blast.
In view of the foregoing, I conclude and find that the signal system
used on the day of the accident, namely the sounding of air horns,
coupled with the direct personal contact made over the mine radio
communications system was an ample warning within the meaning of the
first sentence of section 77.1303(h). Accordingly, respondent Austin
Powder Company was in compliance with the cited standard and the section
104(a) Citation No. 1041345 IS VACATED.
Factof Violation - Citation No. 1041342, July 31, 1981, 30 CFR 77.1303(h)
Citation No. 1041342 contains two "specifications" which the inspector
apparently believed constituted violations of the second s·entence of
mandatory safety standard section 77.1303(h). The citation asserts that
(1) "ail persons were not cleared and removed from the blasting area",
and (2) that "suitable blasting shelters were not provided to protect
men endangered by concussion or flyrock from blasting". The pertinent
portion of section 77.1303(h), is as follows:
All persons shall be cleared and removed from
the blasting area unless suitable blasting shelters
are provided to protect men endangered by concussion
or flyrock from blasting.
The alleged failure to clear persons from the "blasting a.rea"
The term "blasting area" is defined by section 77.2(f) as "the area
near blasting operations in which concussion or flying material can
reasonably be expected to cause injury". MSHA's theory in this case seems
to be that since someone was killed, the victim was obviously not removed
or cleared from the blasting area. In the circumstances, MSHA argues
that since the standard deals with explosives and blasting, an operator
is absolutely liable for any resulting injuries or deaths. MSHA's theory
of absolute liability was expounded on by its counsel during the course
of a colloquy from the bench (Tr. 177-182). MSHA's counsel takes the
position that since the standard deals with explosives there is absolute
liability when the operator fails to remove all persons from the blasting
area, even though the operator may have made a reasonable physical search
of the area prior to blasting. MSHA's position is highlighted by its
answer to the following question asked by me during the course of the
hearing (Tr. 181):
ADMINISTRATIVE LAW JUDGE KOUTRAS: If some back packer
came on the site, crawled in his sleeping bag and fell
asleep; and, during the hoot owl shift, a shot fired off,
the mine operator took reasonable steps to remove and to
account for all of his people, and every man was taken

121

away from the shot, and the next morning they found
this guy that was knap sacking killed, would you have
a citation, and would you charge the operator for
failing to insure that that kid was not removed from the
site prior to the shot?
MR. COHEN: It may be a technical violation, no negligence,
but you are dealing with explosives,. and we do think there
is an absolute liability to remove all persons.
In the Domtar Industries case, supra, MSHA amended the citation
after the action before Judge Brode:r:ick was begun to include an allegation
that the two men who were killed were not cleared and removed from areas
endangered by the blast as required by the second sentence of section
57.6-175. This standard uses the phrase "areas endangered by the blast"
rather than "hlasting area". In affirming the violation, Judge Broderick
ruled that "the fact that the miners' bodies were found in that area is
irrefutable proof" that all persons were not cleared from the area
endangered by the blast. In a footnote to this ruling, Judge Broderick
stated as follows at 3 FMSHRC 2348:
The Mine Act is generally a strict liability statute.
The language of the cited standard and the wording of
§ llO(a) of the Act make it plain that unforeseeability
is not a defense to a violation, nor can the operator avoid
a violation by placing the blame on a careless employee.
MSHA v. El Paso Rock Quarries, 3 FMSHRC 35 (1981); Hend~nsfels
v. Drilling Co., 2 FMSHRC 790 (1980).
In the instant case, MSHA does not cite the Domtar Industries decision
or the cases cited by Judge Broderick in support of a strict liability
theory. MSHA's brief simply states that the use of explosives have generally
been considered areas where strict liability concepts are specifically
applicable, and concludes that the language of section 77.1303(h) "directly
incorporates the strict liability principals applicable to blasting, into
its requirements".MSHA argues that the mere fact tpat the blast victim
and blaster and his crew were not clear of the area' where flyrock from the
blast did fall is sufficient to impose liability under section 77.1303(h).
I agree with the position taken by Austin Powder Company in its
posthearing arguments that before MSHA can establish that all persons were
not cleared from the blast area, it has the burden of first establishing
what that area is. As correctly pointed out by Austin Powder's counsel
in his brief, MSHA has attempted to establish the "blast area" in two ways.
First, MSHA maintains that the blast area was an area within 500 feet
of the actual blasting location, a.nd. it arrives at this distance by citing
and relying on a State of Pennsyl~ania regulation'which only requires
that machinery within 500 feet be shut down and that persons retreat to
a safe distance.

122

MSHA's second attempt to establish the parameters of the blast area
was to determine after the accident during its investigation how far
the furthest flyrock traveled. Anything inside that area would be considered
the "blast area" and anything beyond the farthest point where the rock landed
would be outside' the "blast area" and presumably in the "safe zone"
MSHA's interpretations and arguments with respect to what the "blasting
area" should be in this case border on fantasy. It seems to me that when
one is dealing with regulations concerning explosives and blasting, the
standards sought to be invoked by MSHA should be clearly and precisely
drawn and applied by the inspectors in the field so that they are readily
understood by those being regulated, as well as those who have the enforcement
responsibility for insuring compliance. The theories advanced by MSHA in
this case are different from those recently advanced in another blasting
case concerning a mine operator in Pennsylvania, and a discussion of this
case follows.
On August 25, 1982, I issued a decision in the case of MSHA v.
Rockville Mining Company, Docket No. WEVA 82-10. The case concerned an
allegation that a Pennsylvania mine operator failed to clear and remove
miners from a blasting area in violation of section 77.1304(h). Even
though the mine was located in Pennsylvania, MSHA made no mention of any
500 foot requirement or absolute liability, and the inspector who issued
the citation, as well as a second inspector who was a qualified MSHA
explosives instructor, said absolutely nothing about any 500 foot "safe
distance" requirement. In fact, the instructor gave an opinion that based
on the size of the charge in the two bore holes in question, 130 feet
was a safe distance, and the inspector who issued the citation rendered
an opinion that ·if all of the holes in question were charged with 800
pounds of explosives each, a safe distance would be· 2,000 feet away. In
short, in the Rockville Mining case~ the question as to what constituted
the "blasting area" was dependent on a number of variables, such as the
amount of explosives used, the number and depth of the holes which
constituted the "shot", the topography, and the expertise of the blaster.
On the facts of the instant case, I conclude and find that in order
to establish a violation of the first specification noted in the citation
MSHA must establish by a prepondance of the evidence that Austin Powder
failed to insure that persons within the "blasting area", as that term
is defined by section 77.2(f), were not cleared or removed prior to the
blast. I reject MSHA's "absolute liability" theory, and I also reject
the notion advanced by MSHA that the mere fact that the blast victim
and the blaster and his crew were in an area where flyrock fell is sufficient
to impose liability under section 77.1304(h). In order for this standard
to make any sense at all, it seems to me that it has to be interpreted
rationally and consistently. "Hindsight" and after-the-fact interpretations
for the purpose of laying the blame on someone for an unfortunate accident
do not in my view advance the interests of safety, particularly when the
standard in question is obviously being inconsistently applied and
interpreted.

123

In this case, MSHA also advances the argument that the blaster should
hav.e followed the recommendations or requirements· of Pennsylvania State
law and positioned himself 500 feet from the blast. I find nothing in
section 77.1304(h) that supports this theory, and as correctly pointed
out by Austin Powder's counsel, the state code provision relied on does
not define the "blast area", and counsel's observations that requiring
mine operators to follow different state law regulations on this issue
can only lead to chaos are well taken. In my view, if MSHA believes that
such state requirements should be followed then it should promulgate an
appropriate standard and say so. Here, although MSHA fixes the "blasting
area" by measuring the distance where the farthest rock fell, it also takes the
position that 500 feet was a safe distance for people to be. Had the rock
only gone 100 feet, that would have fixed the "blasting area", yet MSHA
would probably still insist that miners be cleared to a distance of 500
feet. I simply cannot accept such contradictory interpretations and
applications of the cited standard, and I reject MSHA' s "500-foot theory".
While I agree with the argument that the blaster in this case had a
duty under section 77.1304(h), to locate anyone who happens to be in the
"blasting area" prior to the shot and to insure that he is removed and
cleared away, I disagree with MSHA counsel's argument that the blaster
has such a duty even though he may not be able to.visually observe such
a person prior to the shot (Tr. 34-35). I conclude and find that in light
of the definition of the term "blasting area", the blaster has a duty
to take reasonable and prudent measures to insure that all persons are
cleared and removed from the "blasting area" as reasonably and prudently
determined by him at the q,me of the shot, and not as determined:.bY_.nonexperts after the fact.
In the instant case, MSHA conceded that the procedures followed
by the blaster were technically correct. MSHA found nothing wrong in the
manner in which Mr. Lucas loaded, wired, and fired the shot. Further, as
the record here established, at the time the citation was issued Inspector
Bixler filled out an "inspector's statement" in which he candidly
acknowledged that the accident could not have been predicted and that
it resulted from circumstances beyond the operator's control. He later
filled.out a new statement at the direction of his supervisor after someone
from the solicitor's office made a "lawyer's judgment" that the case obviously
could not be defended on its merits. Mr. Bondra candidly admitted during
the hearing that the sketch of the "blasting area" as shown in his accident
investigation report was a mistake.
Mr. Lucas testified that he and his crew were positioned some 300
feet from the blast, and he confirmed that in determining what constitutes
the "blasting area", he takes into consideration the size of the shot,
the manner in which it is loaded, and th~ surrounding terrain. On the
day in question, he determined that the shot would go in the opposite
direction from where he and his crew were located, but that for some
unexplained reaso'n there was a "blowout" which caused the flyrock in
question.

124

The record reflects that at the time of the blast, Mr. Lucas was
an experienced and licensed blaster. He holds a college degree in
mathematics, and as indicated earlier, MSHA's investigation disclosed
nothing wrong with the manner in which the shot was fired. Further, since
Inspectors Bondra and Bixler are not blasting experts, do not hold
blaster's licenses, and have no experience in surface blasting, they
were in no position to offer any credible testimony as to the technical
aspects of the shot or the "blowout". Mr. Bixler conceded that at the
time he issued his citation he did not take into account Mr. Lucas' opinion
that 300 feet was a safe distance from the blast, and he also conceded
that Mr. Lucas did have the safety of his crew in mind prior to the blast~
Mr. Lucas testified that prior to the "blowout" he had made five
to six other shots.using the same amount of explosives and that there
was nothing unusual about those shots. Under the circumstances, he
obviously had no reason to believe that a "blowout" or flyrock would
occur, and he confirmed that prior to the detonation of the shot, he
checked all of the charged holes for potential signs of a "blowout".
Further, as indicated earlier in my findings concerning the sounding of
a warning, Mr. Lucas did all that was reasonably possible to alert
all persons within the blasting zone of hazard to shut down all equipment
and to seek shelter.
I conclude and find that Austin Powder Company has established by
a preponderance of the evidence adduced in this case that prior to the
detonation of the blast in question, Mr. Lucas acted in a reasonable
and prudent manner in securing the area, and that he removed himself and
his crew to a safe distance and to a location which he re)isonabJy b~ieved
was outside the "blasting area" as defined by section 77.2(f). I also
conclude and find that Mr. Lucas acted in a reasonable manner in clearing
all other persons from the blasting area, and that he did all that could
be expected of a reasonable and prudent blaster to insure that all persons,
including the accident victim, were outside the blasting area. Under
these circumstances, I conclude that MSHA has failed to establish a
violation and that portion of Citation No. 1041342, which charges Austin
Powder with failing to remove and clear all persons from the blasting area
IS VACATED.
The alleged failure to provide suitable blasting shelters
Citation No. 1041342 also charges Austin P0wder with a failure to
provide suitable blasting shelters. Section 77.1303(h) requires that
all persons be cleared and removed from the blasting a·rea unless suitable
blasting shelters are provided to protect men endangered by concussion or
flyrock from blasting. The regulations do not specify what a "suitable
blasting shelter" is, and this matter is apparently left to the discretion
and judgment of the blaster.
MSHA's counsel asserted during the course of the hearing that the
citation was issued in part for failure to remove persons from the scale
house, a location which counsel asserts was inside the blasting area (Tr. 132-134).

125

In an attempt to justify the inspector's opinion that the scale house
was not a suitable shelter, he was asked to speculate on whether or not
a large rock w~uld crash through the roof of the scale house, and when
he answered in the affirmative, counsel grasped at this as evidence that
the scale house was not a suitable shelter. I find this conclusion on
the part of the inspector to be sheer speculation and a feeble attempt
to justify his after-the-fact lay opinion that the scale house was not a
suitable shelter and that the failure to remove personnel from that
location also constituted a violation of section 77.1303(h).
I take note of the fact that nowhere in the official MSHA report of
investigation compiled by Inspector Bondra is there any mention of the
fact that the scale house was not a suitable shelter, or that the failure
to remove persons from that location concerned the inspector. Further,
I take note of the fact that the conditions or practices described by
Inspector Bondra on the face of his citation do not even mention the
scale house or anyone in it as part of the alleged violative conditions
or practices. His citation is limited to an assertion that the accident
victim was not removed to a safe area, and his conclusions in this regard
were obviously based on the fact that the accident victim suffered fatal
injuries as a result of being struck by flyrock. Since the citation was
issued after the investigation was completed, and since it is based on
information which came to the inspector's attention in the course of
that investigation, one would think that the inspector would have
included the "scale house theory" in the citation. I believe that his
failure to do so stemmed from the fact that at that point in time Mr. Bondra
did not believe that the scale house was in the blasting area. I also
believe that the inclusion of the scale house personnel during t~ 9ourse
of the hearing was an afte~-thought to bolster MSHA's theory of the definition
of "blasting area".
Although Mr. Lucas conceded that there were no designated blasting
shelters at the location of the shot, a drill rig, a shot truck, and a
driller's maintenance truck were present and he considered this equipment
to be suitable blast shelters (Tr. 67-69). However, in his opinion, if
the men are at a safe distance there is no need for them to crawl under
the equipment. As for himself, he conceded that he was not in or under
any piece of equipment because he believed he was at a safe distance some
300 feet from the actual blast operating his detonating device. Aside from
the fact that he believed he was at a safe distance, Mr. Lucas also was
of the opinion that a blaster must be able to observe the blast so as
to detect any misfires and to insure that the proper blasting sequence
takes place. Mr. Doan testified that the scale house was in a secure
area and that a rock would not penetrate the roof. He also testified
that the crush~r is constructed of structural steel and was a ''wonderful
shelter".
Inspector Bondra conceded that a piece of equipment can serve as
an adequate blasting shelter, and he confirmed that the drill rig which
was some thirty feet from where Mr. Lucas was standing at the time of
the detonation would be a shelter. Even though he indicated that his

126

investigation did not determine where the other trucks were located or
where the crew was standing~ his opinion was that the only safe shelter
within 500 feet of the blast was under the drill rig. He also confirmed
that had the blasting crew been under the trucks, he would not have issued
the citation for this violation.
I have some difficulty in comprehending precisely what MSHA's position
is with respect to the alleged failure by Austin Powder to provide the
type of shelter contemplated by the second sentence of section 77.1303(h).
I suspect that the inspector decided to include this specification in his
citation after determining during his investigation that Mr. Lucas was
standing some thirty feet from the drill rig and was not under it when
debris from the blast went over his head. Since the inspector apparently
did not determine where the rest of the crew was positioned, I have no way
of knowing what .he had in mind with respect to the rest of the crew.

As I interpret the cited standard, if suitable blasting shelters are
provided, there is no requirement that persons be cleared and removed from
the blasting area. Conversely, if persons are not within the blasting
area, there is no logical reason for requiring suitable blasting shelters.
The language of the standard leaves much to the imagination, and I suspect
that this is the reason for MSHA's anemic argument which appears at pg. 8
of its brief as follows:

* * * the fact that there were some trucks inside
the blasting zones at the time of the blast is not a
substitute for specifically designating and pro..viding..
suitable shelters for the protection of miners. Unless
the miners are trained in using shelters and know where
the designated shelters are, they do not serve their
intended purpose.
On the facts of this case, it would appear that the fatality which
occurred prompted the inspector to conclude that suitable shelters were
not provided. However, a fatality·, in and of itself, does not establish
a violation of any mandatory safety standard. On the facts of this case,
I cannot conclude that MSHA has established by a preponderance of any
credible evidence, that Austin Powder failed to provide suitable shelters.
To the contrary, I conclude and find that the evidence establishes that
suitable shelters, within the language of the cited standard, were in
fact provided. If MSHA chooses to penalize a mine operator or its independent
contractor everytime a fatality occurs, without regard to whether or not
the facts presented justify such a course of action, then I suggest it
seriously co'nsider completely outlawing blasting or the use of explosives,
or in the alternative, promulgating standards which make sense. I conclude
and find that MSHA has failed to establish that suitable shelters were.
not provided, and that portion of the citation which alleges that were
not IS VACATED.

127

Docket No. PENN 82~33
Fact of Violati.on - Citation No. 1042215, July 31, 1981, 30 CFR 77.1303(h)
This citation was served on Doan Coal Company, and it seems clear
that the inspector issued it because of the fatality. An identical citation
was served on Austin Powder Company after the inspector concluded that
blaster Lucas was not under a suitable shelter because debris from the
blast in question flew over his head while he was standing some thirty
feet from a drill rig which the inspector believed constituted a suitable
shelter. Here, since the victim was struck and killed by flyrock while
apparently sitting on a spoil pile observing the blast, the inspector
concluded that a suitable shelter was not provided, and that the accident
the victim was not cleared and removed from the blasting area.
For the same reasons articulated in my findings and conclusions
concerning Austin Powder's alleged failure to provide suitable blasting
shelters or to remove persons from the blasting, I conclude and find
that MSHA has failed to establish violations of the part of respondent
Doan Coal Company. I find that Doan Coal took all reasonable steps to
remove persons from the blasting area prior to the detonation. Once the
call came over the mine radio communications system, the loader operator,
Albert Bloom, signaled the victim to shut down the crusher, and when last
seen by Mr. Bloom the victim was walking on the road in the direction
of the scale house. I conclude that the victim must have known about the
impending blast since he shut down his equipment and apparently decided
to go on a frolic of his own to the coal spoil pile to view the blast. In
these circumstances, I con~lude that Doan acted reasonably, and !ilJse.nt
any requirement that a mine operator take a physical inventory of all of
its personnel and lead them individually to a safe shelter, I cannot
conclude that Doan Coal Company could have done anything else to prevent
the tragic accident which occurred in this case. Under the circumstances,
the specification in the citation charging Doan Coal Company with failing
to remove all persons from the blasting area IS VACATED.
With regard to the charge that Doan Coal Company failed to provide
suitable blasting shelters, I conclude and find'that the primary responsibility
for providing such shelters fell on Austin Powder. MSHA's attempts to
hold Doan Coal Company responsible after the fact on the theory that the
scale house was not a suitable shelter and did not have a sign posted on
the door identifying it as such is rejected. If MSHA believes that a mine
operator should label every piece of 'equipment or building as a "suitable
blast shelter", similar to those buildings labeled "civil defense shelters"
to be used in the event of a nuclear holocust, then MSHA should seriously
think about promulgating some standards and guidelines in this regard. This
specificat:j..on noted in the citation ls also V$,CATED.
ORDER
In view of the foregoing findings and conclusions, MSHA's proposals

128

for assessment of civil penalties against the named respondents are
rejected, and these proceedings are DISMISSED.

~?.Kot!~~
Administrative Law Judge

Distribution:
Robert A. Cohen, Esq., U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Donald A. Wall, William Michael Hanna, Esqs., Squire, Sanders & Dempsey,
1800 Union Commerce Bldg., Cleveland, OH 44115 (Certified Mail)
Robert M. Hanak, Esq., 311 Main St., Box 250, Reynoldsville, PA 15851
(Certified Mail)

129

SERVICE AGREEMENT
AUSTIN POWDER COMPANY
Cleveland, Ohio·

11

'

192/

WHEREAS, the undersigned customer may hereafter, from time to time, request certain assistance of AUSTIN
POWDER COMPANY in connection with the performance of certain blasting work; and

WHEREAS, AUSTIN POWDER COMPANY is not ef!gaged in blasting work, its business in explosives being confined
solely to the manufacture and sale thereof, but to assist tl~e said customer, the said AUSTIN POWDER COMPANY has agreed, at
certain times, to permit said customer the temporary use, free of charge, of the services of said company's ~mployees, together
with or without certain needed equipment.
·NOW, THEREFORE, the undersigned customer hereby expressly agrees that, while engaged in s~id work, said emrloyees
and equipment are and shall be, on each occasion, to .•II intents and purposes, the employees and equipment of the said
cusmm" and subject to said customer's sole supervision and control in all respects, and that all work and services so performed
shaU ·be at the sole risk and responsibility of the said customer. The undersigned customer further expressly agrees to indem·
nify and hold harmless the AUSTIN POWDER COMPANY, hs employees and agents, from any and all liabilities, damages,
losses or claims of any character, whether caused by negligence or otherwise, as a result of injuries to any property, any
person or the said customer from such services or work ( ex~pting only liability for injury or. death of AUSTIN PowDJ:R
COMPANY employees). The undersigned customer hereby expressly recognizes and assumes sole and absolute responsibility
for the result of the services or work of such employees ot the use of equipment gratuitously furnished by said AUsTm
POWDER CoMPANY.

·

This agreement shall continue In force until either party notifies the other, in writing, of its desire to terminate the
same, but such termination shall not relieve either party of any liability arising thereunder prior to such termination.
A.USTIN POWDER COMPANY

Dy

¥~.,,,{_

Dist. NoO.LJ

ORIGINAL• CLS.YS.L.\ND CO..Y

FOllM ea llllV.•l•T•

- _::[)~ · ~mM&Y

u~~~&l,~~ZE~:::::::::::::::__=

.. INK• CUHOMIE!t"a CO..Y

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

SECRETARY OF LABOR',
on behalf of
ANTHONY HERIGES., TOM ANTONINI,
JOHNNY GIBSON and LARRY HALEY,
Complainant

v.

JAN 18 1983

Complaint of Discharge, Discrimination,
or Interference
Docket Nos. KENT 80-14-D
KENT 80-15-D
KENT 80-22-D
KENT 80-23-D
KENT 80-42-D
KENT 80-52-D

ISLAND CREEK COAL COMPANY,
Respondent
ORDER OF DISMISSAL
FOR GOOD CAUSE SHOWN, the Secretary's motion to withdraw his complaint
in each of the above cases is GRANTED.
WHEREFORE IT IS ORDERED that the above proceedings are DISMISSED.

?)/~~vVL:
WILLIAM FAUVER, JUDGE
Distribution Certified Mail:
Ann Rosenthal, Esq., Office of the Solicitor, US Department of Labor, 4015
Wilson Boulevard, Arlington, VA 22203
Marshall S. Peace, Esq,, Assistant Corporate Counsel, Island Creek Coal
Company, 2355 Harrodsburg Road, PO Box 11430, Lexington, KY 40575
Harrison Combs, Esq., UMWA, 900 15th St., NW, Washington, DC 20005

131

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

WES'J110RELAND COAL COMP ANY,
Contestant

JAN 18 1983

CONTEST OF ORDER

v.

Docket No. WEVA 82-152-R

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

Order No. 886894; 1/12/82

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 82-369
A.C. No. 46-01514-03501

. v.

WESTMORELAND COAL COMPANY,
Respondent
Eccles No. 6 Mine
DECISION
Appearances:

John A. Macleod, Esq., Crowell & Moring, Washington, D.C.,
for Westmoreland Coal Company;
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia, for the Secretary
of Labor.

Before:

Judge Melick.

These consolidated cases are before me pursuant to sections 105(a) and ·
105(d) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq., "the Act", to contest an order of withdrawal issued to the Westmoreland
Coal Company (Westmoreland) under § 104(d)(l) of the Act and for review of a
civil penalty proposed by the Mine Safety and Health Administration (MSHA), for
the violation charged in that order. 1/ The order before me (No. 886894) issued
1/--S-ection 104(d)(l) of the 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

132

by MSHA inspector Homer Gross on January 12, 1982, charges a violation of
the regulatory standard at 30 C.F.R. § 7S.202 and alleges as follows:
During a fatal accident investigation, it was revealed that
the known overhanging rib in the old two north entry on two south
west section (0270), SS' inby survey station number 9363, was
not supported or taken down, which resulted in a fatal accident.
The section was supervised by Robert Hairston, who was aware of
the condition.
The cited standard provides as relevant herein that "overhanging or loose faces
and ribs shall be taken down or supported."
At approximately lO:lS p.m., on January 11, 1982, a roof fall occurred at
Westmoreland's Eccles No. 6 Mine, resulting in the death of scoop operator John
H. Clay. The fall occurred in an area of "old works" last mined in the 1930's
known as the old No. 2 Entry of the two southwest main section. A work crew
under the supervision of section foreman Robert Hairston, was sent to the section on Friday, January 8, 1982, and again on Monday, January 11, 1982, to pre-_
pare to build a stopping needed to maintain required ventilation. On the latter
date, the crew arrived on the section around 4·:30 p.m. Hairston first performed
the required examination of the work places and then assigned duties to the
crew members. In the sequence of operations, the continuous mining machine was
first trammed to the last open crosscut, left, connecting southwest main with
the No. 2 entry of the old inactive two north haulway. Albert Honaker, the
miner operator, proceeded to clean rock and coal from the mine floor across the
20 foot wide entry. While working there, Honaker observed what he described as
a "brow" !:.._/ at the top of the No. 2 entry that protruded from the i-eft "fib some
];./

(contd.) 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 represen~ative of the Secretary determines that such violation has been abated.

2/
West Virginia State Coal Mine Inspector Danny Graham, testifying on behalf
of the operator·, explained that the terms "brow" and "overhanging rib" a:re essentially synonymous. Both terms were used in this case to describe the same phenomenon and I conclude that the terminology is indeed synonymous.

133

10 to 14 inches along 8 feet of the entry. 3/ Honaker was unable to reach the
"brow" because it was then too far inby the-roof bolts, but as he left, he
warned the "pin" crew (roof bolting crew) and ·Arthur Burdiss, the bolter helper,
in particular, to "watch it". After cleaning as much as he could, Honaker left
to work in another area. Honaker told foreman Hairston of the brow condition
and they both later returned with a slate bar. They tried "four or five times"
to bring it down but left the area without succeeding. !!:_/
Arthur Burdiss, a roof bolter helper on Hairston's crew that afternoon,
recalled being warned by Honaker of the "overhanging brow'' in the old No. 2
entry. Burdiss estimated that the brow protruded some 10 to.12 inches along 4
feet of the rib. He and his co~worker, George Ayers, also tried to take down
·the brow with the slate bar but they too were unsuccessful. They were also
unable to bolt into the overhanging brow because of the position of the roof
bolter canopy. Four roof· bolts were, however, installed to within 4 inches
of the outby edge of the brow.
Jim Milam was working with the deceased just before the roof fall. They
unloaded the supplies needed to build the stopping and Milam examined the entry
to determine where to locate the stopping. At this same time, Honaker and Hairston were continuing in their efforts to take down the brow. According to
Milam, it projected 12 to 14 inches into the entry and had a "hairline" crack
or separation in it. He recalls commenting that it looked like a "bad brow''
and asked if it had been checked. Milam and the deceased then also tried unsuccessfully to pull the brow down. Because of their inability to· bring it down
with the slate bar, Milam thought it was safe and both men began pr.epara.tory

1/

There is some divergence of opinibn regarding the size of this "brow".
The operator's witnesses who actually saw it before it fell described it variously as protruding from 10 to 14 inches from the rib along 4 to 22 feet of the
entry. The MSHA inspectors, basing their estimates on the amount of debris
after the fall, thought the overhang woul4 have been 22 feet long, 16 to 34
inches thick, and with a brow of up to 68 inches. West Virginia Coal Mine Inspector Graham, testifying for the operator, estimated, based on the same debris, that the brow had projected 30 to 31 inches into the entry. I do not consider the testimonial discrepancies in the size of the brow to be significant
for purposes of this decision.

!!_/
Mr. Hairston, the section foreman, declined to answer questions relating
to the subject matter of this case citing as grounds therefor the protections
afforded by the Fifth Amendment to the U.S. Constitution. Counsel for MSHA
could give no assurance that Hairston would not be subject to criminal liability based on the subject matter of this case and did not contest the asserted
privilege. No inferences have been drawn from Mr. Hairston's refusal to testify in this regard based on his invocation of the Fifth Amendment privilege.

134

work on the stopping. As they began shoveling loose coal from the rib beneath
the brow, Milam saw some "flakes" begin to fall. This convinced him that the
top was indeed "no good" but before he could shout a warning, the brow and some
additional roof and rib fell onto Mr. Clay, causing his death. Milam later admitted, after seeing the amount and size of th~ debris from the fall, that the
full brow had indeed extended some 22 feet along the entry and that "there was
more to it" than he initially thought.
As a preliminary matter, Westmoreland claims that the regulatory standard
here cited, 30 CFR 75.202, is unenforceably vague as applied to the facts of
this case. The standard provides as relevant herein that "overhanging or loose
faces and ribs shall be taken down or supported." Westmoreland appears to argue
·that because an MSHA inspector testified that he would not necessarily cite
every overhanging rib (for example, a one inch overhang) that in his opinion
posed no hazard, enforcement of the standard was therefore based upon the subjective discretion of the various inspectors. Westmoreland also cites in this
regard an internal MSHA memorandum which provides in essence that overhanging
ribs should be cited only when they present a hazard (Government Ex. No. 2).
In determining the constitutional validity of a regulatory standard where challenged for vagueness, however, the language of the standard itself must first
be examined. In this regard I find that the language provides constitutionally
"reasonable certainty" and is indeed facially unambiguous. Accordingly, MSHA' s
enforcement practices under the standard are irrelevant to the defense asserted.
Connally v. General Construction Co., 269 U.S. 385, 391; Boyce Motor Lines, Inc.
v. United States, 342 U.S. 337.
Westmoreland next argues that the brow which fell did not constitute an
"overhanging rib" within the meaning of the cited standard. As previously noted,
however, West Virginia State Coal Mine Inspector Danny Graham testified on behalf of Westmoreland that the terms "brow" and "overhanging rib" were essentially synonymous. The terms were used in this case by counsel and various witnesses to describe the same phenomenon and I have already concluded that the
words are indeed synonymous. It is accordingly immaterial whether the cited
phenomenon is referred to as a "brow" or "overhang1.ng rib". I find that the
phenomenon was, regardless of the terminology used, an "overhanging rib" within
the meaning of the cited standard.
Westmoreland further contends that a violation of the cited standard cannot be supported where "every means of taking down or supporting an alleged
overhanging rib was either infeasible or presented a potential hazard equal to
or greater than the hazard presented by that overhanging rib." The contentions
involve· elements of two affirmative defences, i.e. impossibility of performance
(or compliance) and the "greater hazard defense". In order to establish the
former defense, the operator must· prove that (1) ·:compliance with the requirements of the cited standard either would be functionally impossible or would
preclude performance of required work, and (2) alternative means of employee
protection are unavailable. Diamond Roofing Company, Inc., 80 OSAHRC 76-3653,
8 BNA OSHC 1080, 1980 CCR OSHD , 24,274 (Feb. 29, 1980); Secretary v. Sewell
Coal Co., 3 FMSHRC 1380 (1981), aff'd 686 F.2d 1066 (4th Cir. 1982). In order to
establish the latter defense, the operator must prove that (1) the hazards of

135

compliance are greater than the hazards of non-compliance; (2) alternative
means of protecting miners are unavailable; and (3) modification proceedings
under Section llO(c) of the Act would have been inappropriate. Secretary v. ·
Penn Allegh Coal Co., Inc., 3 FMSHRC 1392 (1981). Even assuming that modification proceedings would have been inappropriate under the unique facts of this
case (an evidentiary matter which was not, however, fully developed at hearing),
Westmoreland has failed to sustain its burden of proving the other necessary
elements of either the impossibility of compliance or the "greater hazard"
defense.
It has not been shown for example that it was necessary in the first instance to have required the miners to have erected a stopping beneath the overhanging brow. Evidence has not been presented to demonstrate that the stopping
could not have been erected in a safer location or that other alternative means
of meeting the ventilation requirements were.unavailable. Even assuming, arguendo, that such alternatives were unavailable, Westmoreland has failed to prove
that it would have been more hazardous to have supported or taken the overhanging brow down.
MSHA apparently concedes that the overhanging roof in this case could not
reasonably have been blasted down or supported with roof bolts (because the canopy on the roof-bolting machine would not allow the machine to be placed under
the subject brow) and that posts or crib blocks could not have been installed
because of the angle of the brow (Government Ex. No. 4,- page 4). MSHA maintains, however, that the overhanging roof could have been cut down by using the
continuous mining machine. There is no dispute that no efforts were made to do
this. Westmoreland concedes, moreover, that the continuous mJ.ner cpuld~have
been brought in parallel to the old No. 2 entry·if additional roof bolting had
been first provided in the entry. It contends, however, that once in the vicinity of the brow, the ripper heads of the miner might have come into contact
with roof bolts located in close proximity to the brow, causing sparks and possibly tearing down part of the roof. Westmoreland's argument fails, however, to
take into consideration that the continuous miner could have been safely used
to trim the brow just ahead of the roof bolting operation. Thus, the miner operator could have progressed alternately with the roof bolter, cutting down the
brow without the ripper head of the miner ever being in close proximity to the
inserted roof bolts.
Westmoreland also contends that the brow was beyond the reach of the ripper head and therefore the miner could not have been used to oring it down.
Westmoreland ignores the evidence, however, that the miner could have been elevated onto blocks that would have given the ripper head sufficient height to
have reached the brow. While Westmoreland also claims that it would not have
been safe to have placed roof bolts in the area between the last open crosscut
and the second last crosscut in the old No. 2 entry in order to properly position the miner, no specific safety problems have been cited. To the contrary,
MSHA inspector Homer Gross opined that the continuous miner could have been
safely used to bring down the brow. Under all the circumstances, it is clear
that Westmoreland has not met its burden of proving either the "greater hazard"
or "impossibility of compliance" defense. The cited violation is accordingly
sustained.

136

Whether that violation was "significant and substantial", however, depends
on whether, based on the particular facts surrounding the violation, there
existed a reasonable likelihood that the hazard contributed to would have re;sulted in an injury of a reasonably serious nature. Secretary v. Cement Division, National Gypsum Co., 3 FMSHRC 822 at 825. The test essentially involves
two considerations, (1) t.he probability of resulting injury, and (2) the ·seriousness of the resulting injury. Even considering only the testimony from the
operator's witnesses, it is clear that a substantial overhanging brow existed
in the cited entry in which at least a hairline fracture or separation could be
observed. According to these witnesses, the brow protruded from 10 to 31 inches
from the rib for as long as 22 feet of the entry. Even had the fracture or sep. aration not been observed, Westmoreland's expert witness, Dr. Syd Peng, conceded
that fractures may very well exist that are not visible. In addition, the overhanging brow in this case was sufficiently obvious to have attracted the attention of at least six experienced miners who were sufficiently concerned to have
all made efforts to bring it down with a slate bar. It may reasonably be inferred therefore that all of these miners, at some point in time, perceived the
brow as a serious hazard. Under all the circumstances, I conclude that the violation presented a high probability of serious or fatal injuries. There indeed
existed a reasonable likelihood that the hazard of a roof fall would occur,
resulting in injuries of a serious nature. Accordingly, I find the. violation
to have been "significant and substantial". For the same reasons, I find that
the violation reflected a high level of gravity.
I further find that the violation was the result of the unwarrantable failure of the operator to comply with the law. A violation is fhe res.ult of "unwarrantable failure" if the violative condition was one which the operator knew or
should have known existed or which the operator failed to correct through indifference or lack of reasonable care. Zeigler Coal Co., 7 IBMA 280. In this regard, the n~gligent acts of section foreman Robert Hairston are attributable-to
the operator. Secretary v. Ace Drilling Co, Inc., 2 FMSHRC 790 (1980). It is
undisputed in this case that Hairston had been warned about the overhanging brow
at issue, had seen the condiUon, and had apparently deemed it sufficiently dangerous to have made efforts on his own to bring it down with a slate bar. The
very existence of this brow as described by the operator's own witnesses clearly
constituted a violation·of the cited standard. It may reasonably be ·inferred,
therefore, that Hairston had knowledge of the violative condition but failed
to correct that condition through indifference or lack of reasonable care.
Zeigler Coal Co., supra. The violation was accordingly the result of the unwarrantable failure of the operator to comply with the law and, indeed, of gross
negligence. Accordingly, I affirm the order at bar •.
In determining the amount of civil penalty that is appropriate in this
case, I also consider that the operator is large in size, that it has a fairly
substant:l.al history of violations, and that the penalty here imposed would not
affect its ability to stay in business. Within this framework of evidence, I
find that a penalty of $8000 is appropriate.

137

Order
Order No. 886894 is affirmed and the contest of that order\is dismissed.
A civil penalty of $8000 shall be paid by the Wes oreland Coalr,Company within
30 days of the date of this decision.
l
f!
ii

I
Distribution:

By certified mail.

John A. MacLeod, Esq. and Orin H. Kutinplan,
Avenue, N.W., Washington, DC 20036

1100 Connecticut

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, 4015
Wilson Boulevard, Arlington, VA 22203

138

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

JAN 19 1983
)

CHARLES J. FRAZIER,

)
)
Complainant, )
)

v.

COMPLAINT OF DISCRIMINATION
DOCKET NO. WEST 81-329-D

)
)

MORRISON-KNUDSEN, INC.,

)
)

Respondent.

)
)

~~~~~~~~~~~~~~~~~~---

Appearances:
Gary Overfelt, Esq.
417 Petroleum Building
Billings, Montana
for Complainant
Earl K. Madsen, Esq.
1717 Washington Avenue
Golden, Colorado
for Respondent
Before: Judge John J• Morris
DECISION
Complainant Charles J. Frazier, (Fra~ier), brings this action on his
own behalf alleging he was discriminated against by his employer,
Morrison-Knudsen Company, Inc., (MK), in violation of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et~·
The applicable statutory provision, Section lOS(c)(l) of the Act, now
codified at 30 U.S.C. 815(c)(l), in its pertinent part provides as
follows:
No person shall discharge or in any other manner discriminate
against ••• or otherwise interfere with the exercise of the
statutory rights of any miner ••• because such miner ••• has
filed or made a complaint under or relating to this Act, including a complaint notifying the operator or the operator's
agent, or the representative of the miners ••• of an alleged
danger or safety or health violation ••• or because such miner
••• has instituted or caused to be instituted any proceeding

13S

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 ••• on behalf of himself or others of
any statutory right afforded by this Act.
After notice to the parties a hearing on the merits was held in
Billings, Montana on June 7-8, 1982.
The parties filed post trials briefs.
ISSUES
The threshold issues are whether complainant, as a management
supervisor, is within the coverage of the Act and, further, whether the
complaint was timely filed.
The issue on the merits is whether respondent discriminated against
complainant, a safety supervisor, in violation of the Act.
COVERAGE
Respondent contends that complainant does not come within the
coverage of the Act since he is a member of management.
The uncontroverted facts establish that complainant was employed as a
safety specialist in respondent's surface coal mine operation (Tr. 99,
199). The answer to the coverage issue is found in the Act itself where a
"miner" is unambiguously defined as any individual working in a coal or
other mine, Section 3(g). Management personnel working in a coal mine are
therefore "miners" within section 105(c)(l) and they are accordingly
entitled to the protections afforded therein. Accord: Miller v. Fe·deral
Mine Safet and Health Review Connnission, 687 F. 2d 194, (7th Cir August
1982 • Eagle v. Southern Ohio Coal Company, 2 FMSHRC 3728, December 1980,
(Merlick, J.). Herman v. IMCO Services, 4 FMSHRC 1540, August 1982
(Morr~s, J.).
The motion to dismiss for lack of coverage is denied.
TIMELY FILING OF COMPLAINANT
MK asserts the complaint of discriminatory discharge was not timely
filed. The discharge occurred on April 28, 1981 and the first notice MK
received was when Frazier filed his amended petition in this case on August
25, 1981, approximately four months later.

140

A review of the sequence of events is necessary to consider this ·
issue. On April 10, 1981, Frazier was permanently assigned to the swing
shift (Tr. 46, .74). He considered this assignment to be discriminatory and
on April 24, 1981 he filed a discrimination complaint with MSHA. Frazier
alleged his transfer was motivated by four different 'incidents. He alleged
these occurred on September 25, 1980, September 30, 1980, April 6, 1981,
and April 7, 1981.
On May 12, 1981, in the process of investigating his discrimination
complaint, MSHA took a 12 page handwritten statement from Frazier
(Connnission File).
On June 15, 1981 MSHA advised Frazier that on the basis of their investigation they concluded that no violation of Section 105(c) had
occurred. On July 14, 1981 Frazier appealed to the Corrnnission. On August
26, 1981 an "amended complaint" was filed before the Corrnnission alleging
Frazier was unlawfully discharged on April 28, 1981 for engaging in a
protected activity.
DISCUSSION
It has been held that none of the filing deadlines in the
discrimination section of the Act are jurisdictional in nature. Christian
v. South Hopkins Coal Company, 1 FMSHRC 126, 134-136 (1979), Bennett v.
Kaiser Aluminum & Chemical Corporation, 3 FMSHRC 1539, (1981).
All of the above facts indicate that Frazier was pursuing his
discimination complaint in a timely manner. To support MK's argument would
be to exalt form above substance.
The motion to dismiss for· untimely filing of the complaint is denied.
COMPLAINANT'S EVIDENCE
Complainant's evidence consists of the testimony of Charles J.
Frazier, Jewell Davisson, and numerous exhibits.
Charles J. Frazier was employed with Morrison•Knudsen as a safety
supervisor 2 on April 24, 1979 (Tr. 14, 19, 56). He was terminated April
28, 1981 (Tr. 14). Frazier's initial assignment was at the MK mine in
Kennnerer, Wyoming. At that location Frazier reported to Gary Kilstrom, the
senior safety supervisor (Tr. 58). Frazier's relationship with Kilstrom
developed into a personality conflict (Tr. 58). Frazier was not as severe
as Kilstrom (Tr. 62-63).
Frazier was subsequently transferred to the MK Absoloka Mine in
Billings, Montana where he worked under Jed Tayl?r, mine manager (Tr. 19).
He also reported to Richard Daly in the home office. Daly was in charge of
safety and environmental services (Tr. 19).
In February 1980, Frazier was restricted to his office (Tr. 141).

141

In March 1980 an MSHA audit found MK in violation of the dust
standard (Tr. 32,· 125, 126). Frazier complained that MK's dust sampling
program was inadequate (Tr. 28). Frazier was reprimanded numerous times
and Jed Taylor reprimanded him about the dust and noise violation. Taylor
told Frazier that we got away with it and keep your nose out of it (Tr.
31-32). It wasn't Frazier's responsibility to take dust samples (Tr.
127).
In September 1980 MK had a ground control problem in pit No. 4 (Tr.
27-28). MSHA inspector Clayton issued a citation and told Taylor (mine
manager) what he expected to be done (Tr. 28). Taylor made the remark that
"that's the way the Good Lord meant it to be and there wasn't nothing he
could do to change it." Frazier felt this was a poor safety attitude and
behavior (Tr. 28).
In September 1980 Frazier reported an unsafe condition to Wunderlick
(mine superintendent) in pit No. 4 (Tr. 33). Wunderlick told Frazier he
wasn't to be in the pit (Tr. 33).
In December 1980 Frazier gave a company safety citation to Chaps Lix
in a local bar (Tr. 89, 158). The union complained and Taylor was upset
stating that company business shouldn't be conducted in a bar (Tr. 101).
Frazier said he'd apologize to Lix for giving it to him in a bar but he
would 'nt apologize for the citation. He told Taylor he could "eat it" (Tr.
101).
On one occasion Taylor told Frazier that his [miner] training was
inadequate (Tr. 35). Frazier felt the Company's facilities and training
aids were inadequate. Frazier made requests for teaching aids from when he
arrived until he ceased to conduct miner training which was about four
months before he was terminated (Tr. 37). Frazier received no response
from his supervisors and no aids except a projector (Tr. 37). The only
text books he had were those he had brought from MSHA (Tr. 38).
Frazier and Doug Harper, an MSHA inspector, have a personality
conflict. On one occasion Frazier flunked Harper in a mine rescue course.
Harper felt Frazier didn't have sufficient education in safety and health
(Tr. 40).
In December, 1980, and January, 1981, Frazier was aware that MK and
Local 400 of the Operating Engineers were negotiating a labor contract (Tr.
40-41). Frazier hadn't made his union preference known to other miners
except about a year before his discharge he told Chaps Lix that he felt for

142

the money that we were paying for dues and initiation into the Operators
Local 400, they weren't getting proper representation (Tr. 42, 43).
Frazier did not express any union preference after being advised by MK
policy of the supervisors role (Tr. 42, 43). Frazier attended a meeting in
January 1981 concerning the necessity of supervisors remaining neutral (in
the conflict between the unions) (Tr. 81, 82).
Frazier went to the home office in Boise in midwinter, 1981 (Tr. 41,
42). Taylor said Frazier was being sent to the home office because of a
complaint he (Taylor) had received from the Operating Engineers (Tr. 76).
On April 7, 198.1 Frazier talked to Dean Gilson in the home office.
Gilson told Frazier he'd have to get along with Taylor or his career would
be in jeopardy (Tr. 44, 45). Frazier replied he wouldn't take any guff off
of Taylor and "to hell with his· career" (Tr. 44-45). Frazier isn't overly
fond of Taylor (Tr. 149).
On April 8, 1981 Frazier told fellow safety superviso~ Barnett that he
had no recourse but to go to MSHA (Tr. 46).
On April 10, 1981 1; Frazier was transferred to the swing shift
(Tr. 46). Frazier was told that Barnett was going to do the training.
They said Frazier wasn't qualified and Frazier agrees he wasn't qualified
( Tr • 46 , 4 7) •
On April 11 Frazier went to the home of MSHA inspector Dick Clayton.
At that time he listed 12 violations (Tr. 45, 46).· [A detailed analysis of
the complaints is set forth, infra, pages 13-14.] An MSHA inspection took
place on April 24, 1981 (Tr. 47).
About this time Frazier posted the NLRB election decision on the union
bulletin board (Tr. 96, R3).
·on April 28, 1981 Taylor called Frazier to the office and accused him
of preferring one union over the other (Tr. 105). Frazier said he wanted
to see his accuser. At this juncture Taylor terminated Frazier (Tr. 105).
Frazier then told Taylor he hadn't seen the last of him. Further, he said
he had turned MK into MSHA. In addition, Frazier said he had filed a
discrimination complaint (Tr. 107).
·

1/ Frazier's testimony is that he was put on the straight swing shift on
April 14 but the manag~r's memorandum of transfer is dated April 10, 1981
(R2). Frazier was already on the swing shift and management's directive
established that the shift would be "non rotating". I accordingly consider
Friday, April 10th, 1981 as the first date Frazier knew he would continue
on the swing shift.

143

RESPONDENT'S EVIDENCE
Respondent's evidence consists of the testimony of William Harper,
Elwood Burge, Robert Whempner, David Camden, Robert Wunderlick, Jeffrey
Barnett, Howard Clayton, Bruce Zimmerman, George (Chaps) Lix, James
Vanderslott, Dean Gilson, Jed Taylor and numerous exhibits.
Frazier's first assignment was at the Kemmerer, Wyoming mine where he
reported to Gary Kilstrom (Tr. 407, 417). Problems with Frazier at the
Kemmerer Mine included tardiness, an odor of alcohol, and failure to stay
awake (Tr. 418).
MSHA inspector Doug Harper, a safety trainer, first inspected MK in
1979. He evaluated the training and except for first aid he concluded that
the miner training was insufficient (Tr. 175-180). Charles Frazier was
conducting the training (Tr. 76). Harper prepared a written report which
was dated December 18, 1979 (Tr. 178, 179, R7). The final report and
conclusion was issued on January 9, 1981 by Walter R. Schell, MSHA training
administrator located in Denver, Colorado (Tr. 178, R7). The MSHA report
states, in part, that use should be made of the large body of information,
visuals, films and tapes available (R7).
Harper had never received any training from Frazier although he had
spent four to five hours monitoring Frazier's class as an observer (Tr.
186, 195).
On May 31, 1979 Bruce Zimmerman, MK's training manager, in a
interoffice memorandum to his supervisors reviewed the on going training
and program development to meet the requirements of MSHA at three MK mines
(Tr. 357, Rl3). The memorandum states in part: "In addition Charlie
[Frazier] has a vast resource library of overheads, handouts and written
material" (Rl3, Tr. 367, 368).
Dean Gilson, MK's manager for safety and training, asked that the MSHA
report be withheld until MK could improve its training (Tr. 426). Bruce
Zimmerman was sent to work with Frazier in an effort to change the negative
comments on his performance (Tr. 427). At a meeting on January 9, 1980
Zimmerman related the feelings of George Herman and Doug Harper (MSHA
personnel) to Frazier (Tr. 364). Zimmerman further suggested that Frazier
should be less confrontive and less antagonistic. Frazier agreed (Tr.
365). About the first of December, 1980, the local union, Operating
Engineers Local 400, was negotiating with the company over the terms of
labor contract (Tr. 322). At this time workers complained to David
Camden, a union stewart, about Frazier's efforts to influence union
representation at the mine. Frazier was advocating that the MK workers
weren't getting representation from Local 400. Further, Frazier was
advocating that Local 400 should be kicked out and the workers should vote
in the United.Mine Workers (UMW) (Tr. 261, 332). There were approximately
15 such complaints over an eight to ten month period (Tr. 264-265). Camden
and Mike Pascal reported these conversations to David Whempner, an official
of Local 400 (Tr. 226, 232-233, 263). At that time Whempner complained to
mine manager Jed Taylor, who suggested that the matter be tabled (Tr.
233-234). On the same day Whempner talked to worker Chaps Lix who told

144

Whempner that such conversations were taking place in neighborhood bars
(Tr. 234). Whempner again told Jed Taylor to have it stopped (Tr. 235).
On January 6, 1981 Elwood Burge, MK's assistant director of Industrial
Relations, came to the Absoloka Mine from the home office in Boise, Idaho.
The visit was because of complaints MK was receiving from Whempner that
Frazier was showing his preference for the United Mine Workers over Local
400 (Tr. 200-201, 205-208, 322). There were a number of meetings
discussing the company policy that MK was to remain neutral between the two
unions. Frazier was present at the January 6, 1981 meeting. Whempner, a
union official and Taylor, mine manager, identified Frazier at the meeting
(Tr. 207-208, 276-277).
A week or two later Camden told Whempner that Frazier and Lix had been
in an argument in a bar about the union. At that time F·razier wrote
Chaps Lix a company safety violation in a local bar (Tr. 235). Lix brought
the citation to Camden. Whempner in turn went to the mine and "raised
hell" with the Board of Adjustments and threatened Jed Taylor with an NLRB
unfair labor charge. Specifically, the stewards had been telling Whernpner
that Frazier was telling everybody that Local 400 had given away over half
of their labor contract. In addition to "raising hell" with Jed Taylor
Whempner contacted his boss, Vince Bosch, in Helena, Montana and "raised
hell" with him (Tr. 238). Bosch indicated that unfair labor charges would
be filed by Local 400 against MK (Tr. 240). [No such charges were in fact
ever filed (Tr. 241).]
Vince Bosch, Whempner's boss, contacted Burge (Industrial Relations
for MK), after Whempner complained. The problems ceased. Frazier was
temporarily transferred to the home office in Boise, Idaho on January 28,
1981 where he remained until March 10, 1981 (Tr. 241, Rl). Problems for
Whempner resumed when Frazier returned to the mine (Tr. 241-242).
After he returned from Boise Taylor assigned Frazier to the second
shift (Tr. 468). The shift assignment was no different from any other
assignment (Tr. 468). The notice to·Barnett and Frazier dated April 10,
1981 states "It is not beneficial to have rotating shift in the Safety
Department at this time because of our busy schedule and various activities
such as training sessions and meetings. Therefore, we will continue to
operate on "straight" shift until further notice. Should you have any
question on this, please do not hestitate to call me" (R2).
In the meantime the United Mine Workers had petitioned the NLRB
requesting an election between the UMW and Local 400 (R3). The order
directing the election was entered on April 13, 1981 and the notice was
timed stamped as received by MK on April 16, 1981 (R3). Shortly thereafter
union steward Camden called Whempner and told him that Frazier was passing
around the notice of the election at the mine site and urging the miners to
vote for the "right outfit" (Tr. 243, 401-403). Whempner "raised hell"
(Tr. 244-245). Whempner's complaint were that Frazier was passing the
election notice around in the lunchroom and change room (Tr. 248). The

145

NLRB order wasn't posted on the union bulletin board until about three or
four days later (Tr. 269). Whempner was in a huff because Frazier, a
company man, was passing the election around before the union knew about it
(Tr. 256). Whempner could handle criticism of himself but he couldn't
discipline a company man (Tr. 251-252).
James Vandersloot testified that Frazier came into the lunchroom with
the NLRB order and he said they should vote for the right out fit so "you
can get some representation out there" (Tr. 403). At this time the whole
swing shift was in the lunchroom (Tr. 403).
Whempner again tried to get Frazier removed and he called Burge,
(Industrial Relations), who told him to review the problem with mine
manager Jed Taylor (Tr. 209-210, 246).
Robert Wunderlick, the mine superintendent, told Taylor that Frazier
was in the lunchroom with the [NLRB] petition. Further, he related to
Taylor that Frazier was claiming the contract was no good, that there ~as
going to be a new election, and that everything that had been done was no
longer good (Tr. 469-470). Taylor called his superiors in Boise who told
him to irmnediately fire Frazier. Taylor said he wouldn't fire Frazier
until he verified the report of Frazier's activities (Tr. 470-471). Taylor
asked Wunderlick to double check the facts. He did. Camden told
Wunderlick that Frazier had presented the paper to the workers (Tr. 278).
Taylor had called his supervisors at the home office because home office
concurrence is necessary to discharge a safety supervisor (Tr. 410).
Burge, (Industrial Relations) and Dean Gilson, manager of safety and
training, concurred with Taylor that his decision to terminate was
appropriate (Tr. 210-216, 435-436).
Frazier was called to the office on the same day and terminated for
union involvement and for not following instructions (Tr. 470-471). He had
been told three or four times to remain neutral (Tr. 474, 486-487).
Frazier asked Taylor who was,accusing him (Tr. 472).
When he was terminated Frazier said MK hadn't heard the last of him
(Tr. 477). Taylor didn't know of any MSHA charges brought by Frazier (Tr.
478).
The safety record at the Absolka mine is excellent. It has two years
without a lost time acident for 500,000 man hours (Tr. 438-440, Rl9). The
mine incident rate is 0.0 compared with the average for the coal industry
of 3.5 (Tr. 440, R20).
DISCUSSION
The Cormnission established the general principles for analyzing discrimination cases under the Mine Act in Secretary ex rel. Pasula v.
Consolidation Coal Co., 2 FMSHRC (October 1980), rev'd on other grounds

146

sub nom, Consolidation Coal Co., v. Marshall, 663 F. 2d 1211, (3d Cir.
1981), and Secretar ex rel Robinette v. United Castle Coal Co., 3 FMSHRC
803 (April 1981 • In these cases the Commission ruled that a complainant,
in order to establish a prima facie case of discrimination bears a burden
of production and persuasion to show that he was engaged in protected
activity and that the adverse action was motivated in any part by the
protected activity. Pasula, 2 FMSHRC 2799-2800; Robinette, 3 FMSHRC at
817-818.
At this point is appropriate to consider the status of Frazier's
activities. The vast majority of discrimination claims arising under the
Act are generated by miners engaged in duties other than those of a safety
inspector. But I find nothing in the text of the Act nor in the
legislative history that indicates Congress intended to exclude a safety
inspector from the protection of the discrimination portion of the Act. An
operator's safety inspecto.r bears an important function. in helping fulfill
the purposes of the Act since his duties will ordinarily seek to promote
safety and health. Under Pasula and Robinette and their progeny I conclude
that good faith complaints of unsafe and unhealthy conditions by a safety
inspector in the ordinary course of his duties are protected under the
Act.
Having resolved Frazier's status we will go to the Commission's
further ruling in Robinette: to rebut a prima facie case a operator must
show either that no protected activity occurred (in view of the ruling as
to Frazier's status MK cannot establish that defense) or that the adverse
action was in no part motivated by protected activity, 3 FMSHRC 817-818 and
N. 20. If an operator cannot rebut the prima facie case in the foregoing
manner it may nevertheless defend by proving that it was also motivated by
the miner's unprotected activities and that it would have taken the adverse
action in any event for the unprotected activities alone, Pasula, 2 FMSHRC
2799-2800.
The operator bears an intermediate burden of production and persuasion
with regard to these elements of defense. Robinette, 3 FMSHRC at 818 N.
20. This· further line of defense applies only in. "mixed motive" cases,
i.e., cases where the adverse act.ion is motivated by both protected and
unprotected activity. The Commission made clear in Robinette that the
ultimate burden of persuasion does not shift from the complainant in either
kind of case. 3 FMSHRC at 818 N. 20. The foregoing Pasula-Robinette test
is based in part on the Supreme Court's articulation of similar principles
in Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, U.S. 274, 285-87
( 1977).
In Sec. e·x rel. Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November
1981), pet. for review filed, N~. 81-2300 (D.C. Cir. December 11, 1981),
the Commission affirmed the Pasula-Robinette test, and explained the
following proper criteria for analyzing an operator's business justification for adverse action:

147

Commission judges must often analyze the merits of an
operator's alleged business justification for the
challenged adverse action. In appropriate cases, they may
conclude that the justification is so weak, so implausible,
or so out of line with normal practice that it was a mere
pretext seized upon to cloak discriminatory motive. But such
inquiries must be restrained.
The Commission and its judges have neither the statutory
charter nor the specialized expe~tise to sit as a super
grievance or arbitration board meting out industrial
equity. Cf. Youngstown Mines Corp., 1 FMSHRC 990, 994 (1979).
Once it appears that a proffered business justification is
not plainly incredible-or implausible, a finding of pretext
is inappropriate. We and our judges should not substitute
for the operator's business judgment our views on "good"
business practice or on whether a particular adverse action
was "just" or "wise." Cf. NLRB v. Eastern Smelting & Refining
Corp., 598 F. 2d 666, 671 (fst:"cir. 1979). The proper focus,
pursuant to Pasula, is on whether a credible justification
figured into motivation and, if it did, whether it would have
led to the adverse action apart from the miner's protected
activities. If a proffered justification survives pretext
analysis ••. , then a limited examination of its substantiality
becomes appropriate. The question, however, is not whether
such a justification comports with a judge's or our sense of
fairness or enlightened business practice. Rather, the
narrow statutory question is whether the reason was enough
to have legitimately moved that operator to have disciplined
the miner. Cf. R-W Service System Inc., 243 NLRB 1202, 120304 (1979) (articulating an analogous standard).
3 FMSHRC at 2516-17. Thus, the Commission first approved restrained
analysis of an operator's proffered business justification to determine
whether it amounts to a pretext. Second, the Commission held that once it
is determined that a business justification is not pretextual, then the
judge should determine whether "the reason was enough to have legitimately
moved the operator" to take adverse action.
' '
By a "limited" or "restrained" examination of the operator's business
justification the Commission does not mean that an operator's business
justification defense should be examined superficially or automatically
approved once offered. Rather, the Connnission intends that its Judges, in
carefuly analyzing such defenses, should not substitute his business
judgment or sense of "industrial just ice" for that of the operator. As the
Commission recently stated "our function is not to pass on the wisdom or
fairness of such asserted business justifications but rather only to
determine whether they are credible and, if so, whether they would have
motivated the particular operator as claimed." Bradley v. Belva Coal Co.,
4 FMSHRC 982, 993 (June 1982).

148

With the Conunission directives in mind we will examine the proferred
business justification asserted by MK. The defense is that Frazier was
fired for showing a preference for the United Mine Workers over Local 400.
As herein noted I find MK's version of the facts to be generally credible.
The credibility of the business justification is established by activities
predating Frazier's termination. Burge came to the Absoloka Mine and all
supervisors were told to remain neutral. This visit came about because MK
was receiving complaints from the union official. After this Frazier was
transferred to the home office. Taylor, the mine superintendent told
Frazier he was being transferred because of complaints by Local 400. Prior
warning of unsatisfactory conduct is one of the criteria mentioned in
Bradley v. Belva Coal Company. I accordingly conclude MK's business
justification is clearly credible. Having made that determination the next
issue is whether MK was motivated as claimed: Yes. The mine manager heard
about Frazier's actions involving the NLRB petition. He had the facts
verified by Wunderlick and Frazier was terminated that very afternoon. In
the midst of two unions struggling to represent its workers company
neutrality would be normal practice. In short, Frazier was fired for
violating MK policy.
Frazier's post trial brief asserts that MK discriminated against him
when he was transferred to the swing shift and thereafter terminated.
A vital element of· a prima facie case is a showing that adverse action
was motivated in any part by the protected activity. If there is no direct
evidence then the Conunission suggests four criteria to be utilized in
analyzing the operator's motivation with regard to adverse personnel
action. This criteria includes knowledge of the protected action,
hostility toward the protected activity, coincidence in time between the
protected activity and the adverse action and disparate treatment of the
complainant, Johnny N. ·Chacon v. Phelps Dodge Corporation.·
Guided by the above case law we will review Frazier's initial
contention that he was transferred because he was overzealous in the enforcement of safety regulations. I disagree with Frazier's position. I do
not find it credible, and no evidence supports the view, that MK waited
until April 1981 to take adverse action against Frazier for events in March
1980 (dust sampling program), in September 1980 (problems in pit #4), and
·
December 1980 (citation issued in a bar). 2 /
In short, there is no coincidental timing as required by Johnny N.
Chacon v. Phelps Dodge.
Frazier complaints about the miner training aids, even if true, could
hardly have affected MK's action since Frazier had been transferred from
the training duties four months before he was terminated (Tr. 37).

2/

The events of April 7, 1981 is hereafter discussed.

149

Frazier's evidence is not a model of clarity and the events of April
7, 1981 require special review. Frazier's only evidence is that on April
7, 1981 he talked to Dean Gilson in the home office. Gilson told Frazier
he'd have to get along with manager Taylor or his career would be in
jeopardy. Frazier replied he wouldn't take any guff off of Taylor and "to
hell with his career" (Tr. 44, 45). Dean Gilson testified in the case but
neither party inquired into the reason for Frazier's telephone call on or
about April 7, 1981 (Tr. 405-444). There is accordingly no evidence
establishing that Frazier was engaged in any protected activity on or about
that date.
·
Frazier's post trial brief asserts that there is evidence that
Wunderlick [superintendent] ordered Frazier to stay out of safety matters
in the pit. This event apparently occurred in September, 1980. It
occurred when Frazier reported an unsafe condition to Wunderlick. Frazier
took Rob Williamson, the then senior safety officer, down to the pit.
Wunderlick told Frazier he wasn't to be in the pit (Tr. 33).
This event, like the other 1980 incidents, lacks coincidental timing
as required by Johnny N. Chacon.
Frazier's post trial brief further asserts that whenever a safety
violation was issued Frazier was blamed for reporting the violation to
MSHA. I have carefully reviewed the record and absolutely no evidence
supports this proposition.
Frazier's post trial brief states there are indications that both
Taylor and Wunderlick were upset because Frazier went over their heads and
contacted the home office about safety. Even if Taylor and Wunderlick were
"upset" with Frazier the record fails to establish the prerequisite
coincidental timing.
The evidence here shows that Frazier was restricted to his office in
March 1980. On this point I credit Wunderlick's uncontroverted testimony
that this restriction came about because Frazier wasn't abiding by orders
to work out matters of safety with supervisors (Tr. 284, 296). Further,
this event occurred in early 1980 and like the other incidents I am not
persuaded that it generated adverse personnel action approximately a year
later.
Frazier's brief argues that, although there is some dispute as to the
exact working, it is clear that Dean Gilson reprimanded Frazier for his
"demanding attitude."

150

I disagree· with Frazier's construct ion of the evidence. It is not
indicated that Gilson reprimanded Frazier. Gilson testified Frazier didn't
work well with management and he was extremely demanding in things he
wanted done. In any event the evidence fails to establish adverse action
against Frazier.
I find all of Frazier's contentions to be without merit. I do not
find that Taylor's permanent assignment of Frazier to the swing shift was
to cloak a discriminatory move. Taylor's stated reason was that "it is not
beneficial to have rotating shift in the Safety Department at this time
because of our busy schedule and various activities such as training
sessions and meetings. Therefore, we will continue to operate on
"straight" shift until further notice." (R2). Independent facts support
the operator's decision since Barnett, MK's only other safety officer at
this mine, had taken over the training duties. I further credit Taylor's
testimony that the shift assignment was no different involving Frazier than
anyone else (Tr. 468). In short, the proferred business justification here
is not plain'iy incredible or implausible.
It should be noted that Frazier engaged in two additional activities
which have been held to be protected under the Act. One protected activity
involved Frazier's complaint of discrimination filed with MSHA when he was
transferred to the swing shift. But the record here fafls to establish
that MK knew of Frazier's complaint. If MK didn't know that Frazier had
filed a discrimination complaint then that protected activity could not
have influenced MK's decision to fire Frazier.
Frazier also contends he was fired because he filed safety complaints
with MSHA.
An in depth review of such complaints is in order. The scenario: the
day after Taylor made Frazier's swing shift assignment permanent Frazier
went to the home of Howard R. Clayton, an MSHA inspector (Tr •. 331-332).
Frazier's complaints to MSHA's Clayton involved ground control, the mining
plan, dust sampling, excessive noise, dust accumulations, oxygen
deficiencies, draglirie moving over miners, inadequate fire trainirig,
superintendent's mining papers, ambulance training, explosives, OSM
violations for not dewatering pits, improper ground on a 280 B shovel, all
hoists, transformer, watering work roads, keys to electrical unit, and
records required to be kept (Tr. 331-345).

MSHA investigated and for various reasons concluded that Frazier's
allegations did not support the issuance of any citations except for the
alleged violation of the fire training regulations, 30 C.F.R.

151

77-1100 3 / (Tr. 331-345). A second citation 4 / was issued on the
day of the inspection, April 27, 1981. This citation did not result from
Frazier's complaints but was initiated by an MSHA priority directive to the
inspectors to check guarding underneath new loading shovels (Tr. 333).
Concerning the filing of the MSHA safety complaints: Frazier's
argument of discriminatory retaliation fails because no evidence
establishes that MK knew Frazier was the informant.
On this record MK could only have learned of the MSHA safety
complaints from MSHA inspector Clayton, from Barnett, or from Frazier himself.
Concerning Inspector Clayton: I credit the professionalism of
Clayton who observed at the hearing that it was against the law to notify
an operator of the identity of an informant (Tr. 346-347). Further,
Clayton couldn't recall telling anyone with MK that Frazier was the informant (Tr. 345-346).
Concerning Barnett: Frazier says he told Barnett about going to MSHA.
However, no evidence establishes that Barnett connnunicated this information
to his supervisors. I find Barnett's testimony illustrates the situation,
namely "I heard from the day I walked on that mine site to [the] day he
[Frazier] left that at some time or another 'I [Frazier] should file
charges with MSHA' or 'I'm [Frazier] going to call the feds', ·or 'I'm
[Frazier] going to call my friends back in Pittsburg' or whatever, and file
charges. That was just a rhetoric of something that went on all the time"
(Tr. 354).
Concerning Frazier himself: Frazier does not claim, before he was
terminated, to have notified MK supervisors that he was the MSHA informant.
In fact, Frazier indicates it was he who told Taylor after his termination
that he was the informant (Tr. 107).

3/

Citation 827683 alleges as follows:

There is no record or indication that the mine operator is complying with
77.1100 of the CFR, in that employees are not being instructed or trained
annually in the use of firegighting facilities and equipment.
4/

Citation 827682 alleges as follows:

The opening under.the Bucyrus Erie 280B shovel located in 004-0 pit did not
have a guard or cover over it. This allowed access in through the frame of
the machine to the high voltage collector rings (4160 volts). This is a
non-compliance of Article 710-44 of the 1975 National Electrical Code.

152

In this basic credibility confrontation Frazier objects to the "totem
Pole" hearsay of his union activities. Further, he complains that no one
with MK interviewed Chaps Lix whom he asserts was the person responsible
for making the "original" complaint concerning Frazier's union activities.
Contrary to Frazier's argument it is not important whether the
statements concerning Frazier's activities were in fact truthful. The
vital issue is whether MK could reasonably believe that such information
was truthful. On the basis of the facts previously stated I cpnclude MK
could have such a reasonable brief. I further find MK did not seize on
these events as a pretext to cloak a discriminatory move.
Further bearing on a resolution of the credibility in this case are
the facts that Frazier agrees he expressed a union preference although he
claims this occurred before contrary instructions were issued by MK (Tr.
43). In addition, direct testimony confirms the event that triggered
Frazier's discharge: Vandersloot testified Frazier came into the lunchroom
with the NLRB order and told the men to vote for the "right outfit" so "you
can get some representation out there" (Tr. 401-403). Frazier's testimony
itself reflects that he had the NLRB decision (Tr. 96).
The Connnission does not attempt to count witnesses but I find that
MK's evidence, a combination of witnesses from management, union, and
fellow workers, has carried the operator's burden of proof as required in
David Pasula. In short, I find that MK would have fired Frazier for his
activities preferring one union over the other regardless of any protected
activity.
Frazier's final content ion that no one from MK interviewed Chaps Lix
lacks merit. There is no obligation on MK to seek out Chaps Lix especially
where some 15 complaints arose about Frazier's union activities (Tr. 265).
In addition, I find that union official Whempner who was the person
complaining of Frazier's activities did, in fact, talk to Lix. This
occurred at the same time Whempner first went to Jed Taylor in December,
1980 (Tr. 233-234).
Since no discrimination occurred in violation of the Act it is unnecessary to consider Frazier's claim for damages.
Based on the foregoing findings of fact and conclusions of law I enter
the following:
ORDER
The complaint of discrimination is dismissed.

Judge

153

Distribution:·
Gary Overfelt, Esq.
Petroleum Building, Suite 417
Billings, Montana 59101
Earl k. Madsen, Esq.
Bradley, Campbell & Carney
1717 Washington Avenue
Golden, Colorado !0401
Gail Lindsay SilIDilons, Esq.
Cotten, Day & Doyle
1899 L Street, N.W.
Washington, D. C. 20036

154

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

JAN 2 4 1933

333 W. COLFAX AVENUE, SUITE 400
. OENVER, COLORADO

80204

)

CLIMAX MOLYBDENUM COMPANY, a Division )
)
of AMAX, INC.,
Contestant,

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

)
)
)
)
)
)
)
)
)

CONTEST OF CITATION PROCEEDINGS
DOCKET NO. WEST 82-87-RM
Citation 567341; 12/3/81
DOCKET NO. WEST 80-453-RM
Citation No. 566900
(Consolidated)
MINE: ·Climax

~~~~~~~~~~~~~~~~-)
Appearances:
Todd D. Peterson, Esq., Crowell & Moring
1100 Connecticut Avenue, N.W., Washington, D.C.
For the Contestant
Richard W. Manning, Esq., Climax Molybdenum Company
1707 Cole Boulevard, Golden, Colorado
For the Contestant
Robert J. Lesnick, Esq., and James H. Barkley, Esq.
Office of the Solicitor, United States Department of Labor
1585 Federal Building, 1961 Stout Street, Denver, Colorado
For the Respondent
Before: John A. Carlson, Judge
DECISION AND ORDER
These two cases were consolidated for decision upon joint motion of
the parties. Docket WEST 80-453-RM was fully tried upon the merits; WEST
82-87-RM was not tried, but as shown in the pleadings, involves an
identical question of law. Upon the parties' representation that the
underlying facts were the same as those adduced at hearing in WEST 80-453,
the motion for consolidation for decision was granted. Both cases arose
out of contests of a 104(a) citation. The citations in both cases alleged
violation of the mandatory standard published at 30 C.F.R. § 57.20-11. It
provides:
Areas where health or safety hazards exist that are not
innnediately obvious to employees shall be barricaded, or
warning signs shall be posted at all approaches. Warning
signs shall be readily visible, legible, display the nature
of the hazard, and any protective action required.

155

The case presents this issue: In parts of the Climax Molybdenum Mine
where miners are exposed to 0.1 working levels or more of radon daughter
radiation, do~s the cited standard require the operator to post signs
warning miners that cigarette smoking, in the mine br outside the mine may
significantly increase their risk of contracting respiratory cancer?
Both parties submitted extensive post-hearing briefs.
Commission's jurisdiction was stipulated.

The

REVIEW AND DISCUSSION OF THE EVIDENCE
I

The parties have no significant disagreement as to most of the facts.
Climax Molybdenum Company (Climax) operates a large molybdenum mine near
Leadville, Colorado. Radon gas is naturally present in measurable
quantities in certain underground areas of the mine. The gas which
emanates from uranium in the ore body or surrounding rock is not itself
dangerous to miners, but as it decays it liberates radioactive particles
known as radon daughters. Health authorities recognize that certain of
these particles cause respiratory cancer when inhaled over prolonged
periods of time. Consequently, the Secretary has promulgated a number of
specific mandatory health standards regulating exposure levels to radon
progeny. These are found at 30 C.F.R. § 57.5-37 through 57.5-47. The
standards yse the "working level" as the measurement of radon daughter
exposure,' / Four working level months exposure are permitted in any
calendar year under 30 C.F.R. § 50.5-38. Other standards prescribe
sampling techniques, the frequency of testing, and record keeping methods.
In a non-uranium mine such as Climax, 30 C.F.R. § 57.5-40 requires the
operator to record the exposure received by all miners working in areas
where concentrations exceed 0.3 WL.
None of the radiation standards mention smoking except for 30 C.F.R.
§ 57.5-41 which provides:

Smoking shall be prohibited in all areas of a mine where
exposure records are required to be kept in compliance with
standard 57.5-40.

1/

The term is defined at 30 C.F.R. § 57.2 as:
any combination of the short-lived radon daughters in
one liter of air that will result in ultimate admission of
1~3 x 105 MeV (million electron volts) of potential alpha
energy, and exposure to those radon daughters over a period
of time is expressed in terms of "working level months" (WLM).
Inhalation of air containing a radon daughter concentration of
1 WL for 173 hours results in an exposure of 1 WLM.

15f)

The parties agree that Climax mine has a number of areas where
exposures ~re high enough to require recording of individual miner
exposure. _!
The Secretary has never contended that Climax failed to comply with
any of the specific radon daughter standards. On the contrary, he makes no
effort to dispute the operator's evidence that it maintains an effective
computerized system for regulating miner's exposure. He also concedes that
the north hanging wall area, on the date of inspection, displayed a "no
smoking" sign in conformity with section 57 .5-41.
The Secretary contends, however, that scientific data disclose that
persons who smoke cigarettes and who are also exposed to radon daughters
experience a far higher incidence of respiratory cancer than do miners who
do not smoke, or smokers who are non-miners. Moreover, according to the
Secretary, the incidence of cancer in smoking miners who are exposed to
radon daughters significantly exceeds the rate predictable from adding the
incidence observable for non-smoking miners and the incidence for nonminer smokers. In other words, the Secretary maintains cigarette smoking
and radon daughter exposure interact synergistically to create
significantly greater probabilities of cancer than one would expect from
looking at either type of exposure alone, or from the sum of the two.
The Secretary provided evidentiary support for his position through
the testimony of Victor E. Archer, M.D., Clinical Professor at the
University of Utah School of Medicine. Dr. Archer, a Fellow of the
American College of Preventive Medicine, has specialized in the study of
the biological effects of radon daughter exposure on humans (Tr. 32). His
testimony traced the history of epidemiological studies in this country and
elsewhere which indicate that radon daughter exposure has a linear
relationship to the incidence of cancer - the greater the exposure, the
higher the respiratory cancer rate. Studies of uranium miners conducted
under his direction, he testified, further showed respiratory cancer rates
were higher among cigarette smokers than non-smokers where radon daughter
exposures were the same. He presented a graph based upon data obtained
from his uranium miner stud1es and those of the American Cancer Society
which investigated the relationship between lung cancer and smoking.

2/ A stipulation made during the hearing shows that radon daughter
concentrations monitored in the Climax Mine during the year preceding the
issuance of the citation ranged from .00 to 5.77 working levels (Tr.
74-75). Respondent's exhibit 3 shows readings at various locations,
including the "north hanging wall," which was the area singled out in the
citation. The highest reading disclosed in the exhibit for that area is
0.33 working levels, recorded on August 11, 1980. There is no dispute as
to the exhibits's accuracy.

157

The graph compares the incidence of respiratory cancer (in terms of
incidence rates per 10,000 person years) between uranium miners who smoked
and who did not smoke in contrast to non-miners who smoked and who did not
smoke (respondent's exhibit 2). These data disclose, among other things,
that the rate observed in miners who smoked was six times greater than ·
miners who had never smoked, and ten times greater than for non-miners who
smoked (Tr. 41). According to Dr. Archer, two Swedish studies inquiring
into the same areas produced results consistent with his. He further
asserted that the data establish that the "induction latent period" (the
time between initial exposure and ultimate onset of cancer) was
"considerably" shorter ·for smoking miners than for non-smoking miners (Tr.
45). From the studies and his experience and training he was of th~
opinion that for miners exposed to radon daughter concentrations:
••• the first 25 years the lung cancer rate substantially increased and that the induction latent
period would be shorter among smokers. (Tr. 47.)
He further believed that this would be true for exposure levels below the 4
working level months allowed as a maximum annual exposure under the
Secretary's radiation rules. In fact, according to Dr. Archer, some cancer
risk exists at any level of radon daughter exposure, and that risk would in
all instances be enhanced by smoking (Tr. 57-58).
In Dr. Archer's opinion, miners should be warned of the effects of
smoking whenever radon daughter concentrations substantially exceed normal
ambient air or "background" levels. When questioned regarding the precise
concentration which should trigger a warning, he responded with this
specific recommendation:
Any level one sets is somewhat arbitrary, but I would
suggest that one-tenth working level would be a reasonable place (Tr. 60).
This is the proposition upon which the Secretary founds his citation.
He concedes that the north hanging wall area displayed a "no smoking" sign
in compliance with standard 57.5-40. Because miners who smoke cigarettes
at any time or place and also inhale radon decay particles in the min~
environment are especially vulnerable to respiratory cancer, the Secretary
reasons that that hazard must be spelled out to miners. The standard at 30
CFR § 57.20-11, he maintains, imposes a clear duty upon Climax to post such
a sign wherever radon readings exceed 0.1 working levels. This is so
because smoking, when combined with radiation exposure, is a health hazard
"not immediately obvious to employees," in the words of the standa~d, and
thus one which-must be emphasized and explained by a warning sign._/

3/ The Secretary does not contend that Climax's duty extends beyond the
giving of a warning; he has not suggested, for example, that compliance
with any standard demands any sanctions against miners who smoke outside
the mine.

158

Climax relied upon_ the testimony of Dr. Keith J. Schiager, a health
physicist, to dispute Dr. Archer~s opinion concerning a radon ·
daughter-smoking synergism. Dr. Schiager conceded that over the long-term
there is a relationship between radon daughters and smoking in that both
increase the risk of lung cancer (Tr. 123). He asserted, however, that.
agreement among scientists ends there. No concensus exists within the
scientific community, he testified, as to the proof of a synergistic
re.lationship (Tr. 123). 4 /
Climax also stresses an admission from Dr. Archer that the various
studies which led him to his conclusions were conducted at a time before
today's stringent limitations on radon daughter exposure were in ef<ect
(Tr. 56). Exposures of the studied miners could thus have been many times
higher than those now permitted at Climax.
II

Climax's basic defenses may be surrnnarized as follows:
(1) The evidence does not prove that risk of respiratory cancer
associated with radon daughter exposure is increased synergistically by
cigarette smoking.
(2) The plain language of section 57.20-11, together with its
history, show that the standard was not intended to address hazardous
conduct outside the mine - including smoking at home.
(3) A comprehensive body of regulations covers the admitted hazards
arising from radon daughters. At section 57.5-41 these regulations cover
smoking in radiation areas. Operators are entitled to rely on these
regulations as encompassing the requirements with respect to smoking as it
relates to radon daughters. Consequently, the Se~retary cannot properly
rely upon a "general" regulation such as 57 .20-11 to impose a requirement
for signs warning against smoking at home.
III

In resolving this dispute I do not decide whether the Secretary's
assessment of the combined smoking and radiation hazard is valid. Such a
finding is unnecessary to reach a correct result. Therefore, for the
purposes of this decision, the existence of the hazard is assumed. The
central issue presented here concerns the cited standard: Does it fairly
encompass the hazard perceived by the Secretary? For the reasons which
follow, I hold that it does not,

4/ However, Raymond Rivera, Climax's occupational health manager at the
mine, agreed o~ cross examination that there is a synergistic relationship ( Tr • 9 7) •

159

In analyzing the scope of the standard which the Secretary seeks to
apply, we must. first recognize that the enforcement and review processes
contemplated by the Act are accusatory and adversarial. Thus, while mine
operators are obliged to comply with every mandatory standard, the language
of each standard must reasonably convey to the operator the nature of the
practices or procedures required or forbidden.
Diamond Roofing Co., v.
OSHRC 528 F. 2d 645 (5th Cir. 1976); Phelps Dodge Corp., v. FMSHRC, 681 F.
2d 1189 (9th Cir. 1982). Put another way, a standard must import reasonable notice of conduct expected. Climax concedes that the standard has
valid application to non-obvious safety or health hazards originating in
the mine. The thrust of its claim is that a good faith reading does not
fairly suggest any obligation to place warning signs in the mine co~cerning
miners' non-work-related conduct outside the mine.
Much of the specific argument of the parties centers around the
relationship between the group of standards which deal specifically with
radiation, and the more general standard cited by the Secretary. Climax
stresses those cases arising under the Occupational Safety and Health Act
which declare that specific standards dealing with a certain subject matter
must take precedence over those of a more general application. In the same
vein, Climax argues that by promulgating the discrete body of radiation
standards beginning at section 57.5-37, the Secretary has worked a species
of preemption. Operators, that is to say, reading this seemingly com~
prehensive collection of standards naturally are lead to believe that they
need look no further to find all the requirements for radiation protection.
Climax further suggests that, other considerations aside, the plain words
of the standard, speaking as they do of "barricades" in addition to warning
signs, imply that section 57.20-H was intended to apply solely to
5
definable hazards within the posted or barricaded area. _/

5/ In a refinement of that argument, counsel for Climax attached to his
post-hearing brief an excerpt from the proceedings of the Federal Metal and
Non-Metal Safety Advisory Committee, which recommended adoption of the
regulation in 1975. According to counsel, the comments of committee
members show their explicit concern was the protection of miners from
non-obvious hazards in underground travelways or mined out areas. The
Secretary objects to this post-trial submission as an improper attempt to
adduce evidence after the closing of the evidentiary record. While it is
probable that the Advisory Committee's proceeding (42 Fed. Reg. 5546, 29418
(1977)) is subject to official notice as an aid to interpretation of the
standard, I give it no weight because of its content. The hurried
discussion of the participants is random and superficial, giving few useful clues to the true intended scope of the standard.

160

The Secretary contends that the distinctions Climax attempts to draw
are invalid because the hazard contemplated here is not exclusively a
radiation hazard, but a unique combination of smoking and radiation
exposure, and therefore beyond the cognizance of the radiation standards.
Thus, he contends, the hazard fits squarely within the cited
"miscellaneous" standard. The Secretary also stresses that every standard
must be read with an appreciation of the remedial intent of the Act, which
gives the safety of miners paramount consideration.
I agree that the existence of a body of regulations dealing wi..th a
specific class of hazards does not invariably operate to exclude coverage
of the same sort of hazard by a more general regulation, unless the general
in some way conflicts with the specific. Also, the remedial aims of the
Act are beyond cavil. The cited standard must be liberally construed.
Given the most liberal construction consistent with the constraints of
due process, however, Climax's arguments must prevail in this case. I am
simply unable to conclude that a mine operator, even supposing his knowledge of the alleged synergistic effect of smoking and radon daughter
exposure, could read section 57.20-11 in conjunction with the radiation
standards and perceive a requirement to post signs in radiation areas of
the mine to warn miners against smoking outside those areas. The standards, taken together, do not fairly convey such a notion to the most
prudent and conscientious operator. This is particularly so for the
following reasons:
(1)
The specific radiation standards do not ignore smoking. Section
57.5-41 addresses the matter quite clearly. As mentioned earlier, this
standard requires simple "no smoking" signs in all mine areas where
exposure records must be kept in compliance with section 57.5-41 (0.3
working levels). This implies that the Secretary considered the combined
effects of smoking and radiation exposure, and was satisfied with this mode
of protection. Moreover, the Secretary predicates his case for signs
warning against smoking at home on a 0.1 working level threshold. Such a
level appears wholly inconsistent with the 0.3 level specified in sections
57.5-40 and 41. Operators may scarcely be expected to read section
57.20-11 to imply the necessity for more elaborate and intensive warnings
at a lower level of exposure than does the specific radiation standard
which speaks directly to the issue of smoking.

(2) The cited standard identifies no particular hazards. It refers
to those "[a]n:as where health or safety hazards exist that are not immediately obvious to employees •••• " It is specific, however, concerning
means of abatement. It names but two: barricades and warning signs. This
specificity concerning corrective measures may properly be considered in
determining the intended reach of the standard. Assume that a mine
operator, through 'its own exploration of the scientific and medical data

161

on the relationship between smoking and radon daughter exposure, is
convinced of a need to warn its miners against smoking away from the mine.
Would that operator be likely to see any connection between that need and
the section 57.20-11 requirement for on-site signs? I think not. I mu.st
agree with Climax that the operator would be inclined to regard the act of
smoking at home as a unique off-site hazard, and to iook for corrections
through such common devices as safety meeting presentations, employee
safety handbook coverage, or paycheck inserts.
(3) As mentioned earlier, this decision does not purport to ~cide
whether the Secretary correctly identifies and assesses the
smoking-radiation hazard. One aspect o·f this issue, however, is material
to efforts to determine the application of the cited standard. The
Secretary's expert, Dr. Archer, was commendably frank in acknowledging that
he was "somewhat arbitrary" in fingering one-tenth working level as the
trigger point for a warning under section 57.20-11. Nowhere does his
testimony or any other evidence suggest a general agreement among experts
that this, rather than some other point, is where the operator's duty
should commence. As a regulated party, the operator is entitled to some
concrete guidance in the scientific literature, if not the standard itself,
as to the radiation level which poses a danger sufficient to necessitate
worker warnings. It is likely true, as Dr. Archer suggests, that there is
no "safe" radiation level; and that the minimum radiation level requiring
warning would of necessity be somewhat arbitrary. The point is, however,
that under the regulatory scheme of the Act the Secretary bears the duty of
determining where that level is, and making it known to mine operators.
The ad hoc quality of the determination in this case is all too
6
apparent. _/
Climax did not violate the cited standard.
fore be vacated.

The citations must there-

6/ I do not fault the Secretary for his concern over the hazard which he
perceives. Much of his evidence on the issue is impressive. I must
suggest, however, that his effort to protect again~t the hazard through an
existing standard was misplaced. The lack of a finite threshold radiation
level for warnings illustrates the need for recourse to the rule making
powers granted by the Act. Use of those powers would provide ample
opportunity for a full airing of all data, the making of a decision based
upon that data, and the promulgation of a clear and precise regulation.

162

ORDER
In ~ccord with the findings and conclusions embodied in the narrative
portions of this decision, the citation in Docket WEST 80-453-RM is ORDERED
vacated.
Further, in accord with the findings and conclusions made in Docket
WEST 80-453-RM, and pursuant to the parties' agreement that the determination in WEST 82-87-RM should be governed by the result reached in WEST
80-453-RM, the citation in WEST 82-87-RM is likewise ORDERED vacated.
Consequently, this consolidated proceeding is dismissed.

Judge
Distribution:
Todd D. Peterson, Esq., Crowell & Moring
1100 Connecticut Avenue, N.W., Washington, D.C.

20036

Richard W. Manning, Esq., Climax Molybdenum Company
1707 Cole Boulevard, Golden, Colorado 80401
Robert J. Lesnick, Esq., Office of the Solicitor
United States Department of Labor, 1585 Federal Building
1961 Stout Street, Denver, Colorado 80294
James H. Barkley, Esq., Office of the Solicitor
United States Department of Labor, 1585 Federal Building
1961 Stout Street, Denver, Colorado 80294

163

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
Arnold J. Sparks, Jr.,
Complainant

JAM 25 \983

Complaint of Discharge,
Discrimination, or
Interference
Docket No. WEVA 79-148-D
Shannon Branch Coal Mine

v.
ALLIED CHE~ITCAL CORPORATION,
Respondent
ORDER REINSTATING DECISION AND ORDER
OF SEPTEMBER 27., 1979
On May 20, 1982, the Commission remanded the captioned matter for
"further proceedings consistent with the court's decision" in UMWA v.
FMSHRC, 671 F.2d 615 (D.C. Cir. 1982), cert. denied October 1.2, 1982,
U.S.

---

,
Accordingly, on July 1, 1982, the trial judge issued an order to
show cause~why his decision and order of September 27, 1979 should not
be reinstated.
Counsel for the Secretary respo~ded saying he had no objection
to reinstatement of my finding of discrimination in Allied's refusal
to pay walkaround compensation.· 1 FMSHRC 1451 (1979). Counsel for
the operator· suggested reinstatement be stayed pending disposition of
a petition for certiorari in Helen Mining et. al. The petition for
certiorari was denied on October 12, 1982.
In the meantime the American Electric Power Company through its
coal subsidiaries filed contests designed to provoke relitigation of
the issue of the applicability of section 103(f) to "spot" inspections.
Under settled principles of issue preclusion, however, and by the
specific terms of the Commission's order of remand, relitigation of the
issue in these matters is foreclosed.
The record shows that while its appeal was pending counsel for
Allied assured.the Commission that all but paragraphs 1, 2 and 6 of my
order of September 27, 1979, had been obeyed. Accordingly, it is

164

ORDERED that in compliance with the order of remand paragraphs 1, 2
and 6 of my order of September 27, 1979, be, and hereby are, REINSTATED
and the operator pay a penalty of $100 o
r before Friday, February 11,
1983.

Judge'
Distribution:
Frederick W. Moncrief, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Arnold J. Sparks, Jr., General Delivery, Pineville, WV
(Certified Mail)

24874

Marsha.11 C. Spradling, Esq., Spillman, Thomas, Battle & Klostermeyer,
P.O. Box 273, Charleston, WV 25321 (Certified Mail)

165

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

SECRETARY OF LABOR,
MINE SAFETY Ai.~D HEALTH
ADMINISTRATION (MSHA),
'On behalf of Ray Gann ·
and Dennis Gann
Complainants

JAN 25 1983

Complaint of Discharge
Discrimination or Interference
Docket No: SE 81-34-DM
Young Mine

v.
ASARCO, INCORPORATED,
Respondent
DECISION ON CROSS MOTIONS FOR SUMMARY JUDGEMENT
All of the pertinent facts in this discrimination case have been
stipulated and the matter has been presented to me on cross motions for
summary judgement. At the time in question the two complainants were
classif~ed as production machine men earning $5. 43 pe;: hour .... Wh~n
production machine men do the work of drilling and blasting they are
paid an incentive bonus which is based upon the time they l·;ere engaged
in drilling and blasting and upon the total tonnage broken by all employees
in a particular week.
On July 29, 30 and 31, 1980, federal mine inspector Frank Mouser
inspected respondent's mine. On the first two days he was accompanied
by Mr. Ray Gann for two 8-hour works~ifts and on July 31, 1980, Mr.
Dennis Gann accompanied the inspector for an entire 8-hour workshift.
The two complainants were paid "walkaround pay" at the rate of a production
· machine man, and the alleged act of discrimination is they did not get
the incentive bonus that they otherwise would have earned. Stipulation
VII states:
"On the days in question all other employees in the
machine man classification did drilling and blasting work
for their entire shifts and received incentive pay 1.n direct
proportion to the number of hours actually worked in the
classification."
It is therefore clear that it cost each of the complainants a certain
amount of money when they accompanied the inspector during the inspection.

166

Section 103(f) of the Act authorizes a representative of the miners
to accompany an inspector on his rounds and states:
"Such representative of miners who is also an employee of the
operator shall suffer no loss of pay during the period of his
participation in the inspection made under this subsection."
It is not necessary to resort to legislative history to determine
that each of these two miners did suffer a "loss of pay during the
period of his participation in the inspection ••• " There was a violation
of the Act and a citation would have been appropriate. If a citation
_ was issued, and I do not know whether one was, then the appropriate
civil penalty should be considered during the normal assessment procedures
connected with a citation. Unless and until the Commission rules that
it is appropriate to bypass the established assessment procedures, I am
not going to assess civil penalties in discrimination cases. If I were
to assess a civil penalty in this case, however, it would be nominal
because the hazard and negligence are of such a low degree.
It is hereby ORDERED that respondent, Asarco, Inc. pay to Dennis
Gann the sum of $7.94 */and pay to Ray Gann the sum of $15.88 and that
each be paid interest at the rate of 10% beginning on the day when they
normally would have received the incentive pay involved herein and
continuing until payment is made.
/

Administrative Law Judge
Distribution: By Certified Mail
Darryl A. Stewart, Esq., Office of the Solicitor, U.S. Department of
Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203

Mr. Dennis Gann,

Riverbend Road,

Mascot, TN

37806

Mr. Ray G~nn, Route 3, Park Street, Strawberry Plains,

TN

Mr. Don H. Walters, Mine Superintendent,

ASARCO, Inc.,

Highway 11-E,

Knoxville,

37902

Strawberry Plains,

TN

37871

C.T. Corporate Systems, 503 Gay Street,

'!:._/

37871

The amounts of pay whe.re stipulated

167

TN

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

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

JAN 28 1983

CIVIL PENALTY PROCEEDING
Docket No. WEST 82-136-M
A.C. No. 48-01181-05040

Petiti.oner ·
v.

Sweetwater Uranium Project
MINERALS EXPLORATION COMPANY,
Respondent
DECISION
Appearances:

Robert J. Lesnick, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for Petitioner;
Anthony D. Weber, Esq., Los Angeles, California, for
Respondent.

Before:

Judge Melick

This case is before m~ upon a petition for assessment of civil penalty
under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. secti0n 801, et~·, the "Act", in which the Secretary charges...-the
Minerals Exploration Company with one violation of the mandatory standard at
30 C.F.R. § 55.9-3. The cited standard requires that "powered mobile equipment shall be provided with adequate brakes." The general i.ssues before me
are whether the company has violated the regulatory standard as alleged in
the petition and, if so, the appropriate civil penalty to be assessed for t·he
violation.
I have previously determined in connection with violations alleged under
the identical standard at 30 C.F.R. § 56.9-3, that the regulatory language
does not provide sufficient guidance as to what is to be considered "adequate
brakes." 1/ In order to pass constitutional muster, a statute or standard
adopted thereunder cannot be "so incomplete, vague, indefinite or uncertain
that men of common intelligence must r~ecessarily guess at its meaning and differ as to its application." Connolly v. General Construction Co., 269 U.S.
385,.391 (1926). Rather, "laws [must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act
accordingly." Grayned v. City of Rockford, 40,8 U.S. 109, 108-109 (1972)"
See Secretary v. Alabama By-Products Corporation, 4 FMSHRC
(December 9,
1982).

l:/

Secretary v. Concrete Materials, Inc., 2 FMSHRC 3105 (1980~·; Secretary
v. A.H. Smith, 4 FMSHRC 1371 (1982) rev. grntd. SeRtember 3, 1982.

168

In deciding whether powered mobile equipment is provided with adequate
brakes under 30 C.F.R. § 55.9-3, the alleged violative condition may appropriately be measured against the standard of whether a reasonably prudent person
familiar with the factual circumstances surrounding the allegedly hazardous
condition, including any facts peculiar to the mining industry, would recognize
a hazard warranting corrective action. Alabama By-Products, supra.
The one citation at issue in this case (No. 578809) charges as follows:
A Michigan 280 rubber tired dozer No. Z506 was being operated in the C-3 Pit with inadequate brakes. It would slowly
stop on level ground at less than 5 miles per hour. The parking
brake would not hold on level ground with the engine idling and
transmission engaged. This created a hazard to the operator and
other persons working in the pit.·
On the unique facts of this case, I cannot conclude that a reasonably
prudent person familiar with the factual circumstances surrounding this allegedly hazardous condition would recognize that there was in fact a hazard warranting corrective action within the purview of the cited regulation. This
determination is based in part upon the failure of MSHA to have followed the
standardized brake testing procedures approved by industry and accepted by
MSHA. According to MSHA inspector Merrill Wolford, brake testing standards
established by the Society of Automotive Engineeers (SAE) then existed for
rubber-tired construction equipment such as the Michigan 280 dozer here cited
(See Appendix A attached hereto). Wolford conceded that the SAE tests were
the only "recognized" tests, but for reasons not made cleat', he devis~d anc
followed his own testing procedures in this case which admittedly did not meet
the SAE standards. 2/ By devising and using his own ad hoc testing procedures,
procedures not shown to have had scientific validity or reliability, the inspector was, indeed, exercising completely arbitrary enforcement practices.
The actual tests performed by Wolford, first on the parking brake and
then on the service brakes, were described by him in the following colloquy:
A. I asked the operator to set the parking brake, to engage
the transmission on the vehicle with the engine in idle speed,
and then let off of the service brakes, and the vehicle moved
forward with no hesitation * * * then I asked the operator -explained to him what I wanted to do: to have him back up a
ways. And while he was doing that, I checked the backup alarm
'!:_/ Wolford testifie.d at one point that it would have been hazardous to have
followed the SAE tests on the cited machine, but he also testified that he
nevertheless offered to perform those tests for the operator and was prepared
to do so. Wolford subsequently recanted and admitted that he did not in fact
advise the operator that he would perform the SAE tests. I do not find Wolford' s testimony to be credible in light of these inconsistencies.

169

-- the audible warning device, rather -~ and asked him to run
it forward at slow speed and when I waved to him, to set the
service brakes. Q. Did he do that? A. Yes, sir. Q. When
you say "slow speed," how fast did he proceed? A. Estimated
at 3 to 5 mile~ an hour. Q. Now, when you signaled him to set
the service brake, what then occurred? A. The vehicle slowly
came to a halt -- what I estimated to be in excess of what
would constitute adequate brakes -- approximately 25, 30 feet.
(T. 14-15).
In light of Inspector Wolford's admission that his own ad hoc testing
procedures were not the recognized industry and MSHA procedures, that Wolfo~d's testing procedures had no correlation to those recognized SAE procedures and that no evidence has been presented to show that Wolford's testing procedures have any scientific validity or reliability, I cannot conclude
that a reasonably prudent person would have recognized that the brakes on the
Michigan 280 loader here cited were inadequate in that they presented a hazard
warranting corrective action within the purview of 30 CFR 55.9-3. }_/ Accordingly, the operator was denied fair notice of any alleged violation and the
citation must be vacated.
Even assuming, arguendo, that the apparent partial admission by safety
supervisor Casey Conway that the parking brakes were indeed bad (see footnote
3, supra) and that therefore due process problems stemming from the operator's
asserted lack of notice may be considered waived, I do not find from the credible evidene-e of record that MSHA has'in any event met its~burdea of ..proving
that the parking and service brakes on the Michigan 280 loader here cited
were ·indeed "inadequate". For the reasons previously stated, I reject the unproven testing procedures followed by Inspector Wolford. In any event, I give
no weight to Conway's apparent admissions that the parking. brakes were bad,
in light of his testimony that he had no expertise in brake testing procedures
and that indeed he was then confused by the procedures followed by Wolford.
3/ Wolford also claims that Casey Conway, the·company safety supervisor, admitted after Wolford's testing that the brakes were bad. Ordinarily, if the
operator has actual knowledge that a cited condition is hazardous, the problem of fair notice does not exist. Cape and Vineyard Division of the New
Bedford Gas and Edison Light Company v. OSHRC, 512 F.2d 1148 (1st Cir. 1975).
However, Conway testified, and credibly I believe, that although he did initially agree with Wolford, he was inexperienced in brake testing and confused
by Wolford's tests and that indeed he subsequently learned in talking with
his maintenance "people" that Wolford's tests were indeed improper. Under
the circumstances, I do not find Conway's apparent admission to be probative
and, because of his inexperience in the testing of brakes, I would not consider him to have been a qualified person sufficiently "familiar with the factual circumstances s·urrounding the allegedly hazardous condition". Alabama
By-Products, supra.

170

On the other hand, I accord significant weight to the firsthand testimony
of David Martinez, the man who was actually operating the cited dozer both
before and after it was cited, that the brakes were working "real good". I
also accord significant weight to the firsthand testimony of field mechanic
George Baker, who drove the cited dozer to the shop after it was cited. He
too found the brakes to be in "very good" condition and upon inspection, found
no need for repairs. In addition, inspection docmnents produced at hearing,
buttressed by the testimony of Conway, show that the cited dozer had been subjected to a "150 hour" inspection, including an inspection for brake adjustment, only the day before the citation herein was issued. I find it unlikely
that the cited dozer would have been returned to service with defective brakes
after such an inspection.
Finally, I accept as credible the testimony of mine operations supervisor
Jerome Connor that he did not personally believe that the brakes on the cited
dozer were defective and that he agreed to withdraw the dozer to the shop
only to avoid an argument with Inspector Wolford. Under these circumstances,
I do not consider either Connor's silence in the face of accusations by the
inspector or his agreement to withdraw the cited equipment to constitute admissions that either the testing procedures followed by Wolford were proper,
or that the brakes on the cited equipment were indeed defective. For these
additional reasons, then, I find that the cited standard was not violated in
this case and that Citation No. 578809 should be vacated.
ORDER
Citation No. 578809 is hereby vacated and

Distribution:

By certified mail~

Anthony D. Weber, Esq., Union Oil Company o
Box 7600, Los Angeles, CA 90017

Union Oil Center,

Robert J. Lesnick, Esq., Office of the Solicitor, u•. s. Department of Labor,
1585 Federal Building, 1961 Stout Street, Denver, CO 802 94

171

APPENDIX A

-

Page l

SAE
STANDARD
RECOMMENDED PRACTICE

INFORMATION REPORT
J~ l/J"J.

This material appears in tlte
SAE Handbook

SAE, 400 COMMONWEALTH DRIVE, WARRENDALE, PA 15096

172

APPENDIX A ~· Page 2
41.187

1tL BRAKING

PERFORMANCE-RUBBER-TIRED
CONSTRUCTION MACHINES-SAE Jl 152 APRSO

SAE Recommended Practice

Repon nf 1he Conttructinn ll<1chinery Tcchnic::al Committee, appro"'·cd July 1976, editorial change April 1980. This document incorporaccs material from SAE J166.

J2J6.J.!J7,JJl9. andjlOHU. "'·hich have been discontinued. Rationale stat~ment available.

event of any single failure in the service braking system.
/. Scope-~finimum performance criteria for service braking systems,
3.3 Parking System-A system to hold stopped machine stationary.
. emergency stoppin~ sy~tems, and parking systems for off-highway, rubberNoTE: Common (;omponents_:_The above braking systems may use com·
tired, self-propelled loaders, dumpers, tractor scrapers, graders, cranes, exmon components: However, a failure .of a common component shall not
td. cavators, and tractors with dozer are provided in this SAE Recommended
reduce the effectiveness of the machines stopping capability below the emerPractice. Refer to SAE J 1057 <July, 1973) and JI 116 (July, 1975) (Sections
I.I, 1.2, and 2) for machine identification.
gency stopping performance as defined in paragraph i.2.1.
4. Braking Systnn Performance
2. Purpo11
4.1 Service Braking System-All tractor scrapers and dum~er5 shall
2.1 To define minimum braking system performance for in-service mahave braked wheels on at least one axle of the prime mover and one axle of
chines.
each trailing unit. All other machines shall have at least two braked wheels
NoTE: This is not a design standard.
2.2 To provide test criteria by which machine braking system compliante ·(one right hand and one left halld).
4.1.1 STOPPING PERFORMANCE-The service braking system, when tested in
may be \·erified.
·accordance with Section 5, shall stop the machine within the distance speci3. Braking Sjslnn1
3.1 Sen·ice Braking System-The primary system of any type used for fied in the appropriate table.
stopping and holding the machine.
·
.
4.1.2 HOLDING PERFORMANCE-The service braking system shall have capa3.2 Emergency Stopping System-The .system used for stopping in· the .bility equivalent to holding the machine stationary on a dry swept concrete

173

APPENDIX A - Page 3
41.188
td. TABLE !-LOADERS, TRACTORS WITH DOZERS-Brake Performance Requirements (SI Units)
Machine Speed, km/h
Machine
Mats
kg

14

10

6

22

11

26

30

34

38

42

Service Brake Maximum Stopping Distance-Metres
(Emergency Brake Stopping Maximum Stopping Distance-Metres)

Up to

1.5
(4.S)

2.9
(8.7)

-

-

-

-

-

-

-

-

-

-

....:

-

0.3
(0.9)

16000

Over
16000
le
32000

Over
32000

S.2
(15.6)

7.1
(21.3)

9.2
(27.6)

11.6
(34.8)

14.4
(43.2)

. 17.2
(51.6)

20.4
(61.2)

6.6
(19.8)

9.2
(27.6)

12.2
(36.6)

lS.5
(46.S)

19.3
(S7.9)

23.5
(70.5)

28.1
(84.3)

7.9
(23.7)

11.l
(33.3)

14.8
(44.4)

19.0
(S7.0)

23.8
(68.4)

29.2
(87.6)

3S.O
(lOS.0)

9.1
(27.3)

12.9
(38.7)

17.4
(S2.2)

22.S
(67.5)

28.3
(84.9)

34.8
(104.4)

41.9
(215.7)

11.0
(33.0)

lS.8
(47.4)

21.3
(63.9)

27.8
(83.4)

35.0
(105.0)

43.2
(129.6)

S2.2
(156.6)

le
'4000

Over
64000

to
127000

Over
127 000

Brake Performance Requirements (U.S. Customary Units)
Machine SpHd, mph
Machine

4

Mau,

6

8

12

10

14

16

18

20

22

24

26

61
(183)

70
(212)

84
(252)

97
(292)

lb
Service Brake Maximum Stopping Distance-Feet
(Emergency Brake Maximum Stopping Distance-Feet)

Up to

2
(6.0)

s

36000

(IS.0)

8
(24.0)

IS
(45)

20
(60)

2S
(75)

31
(93)

38
(114)

4S
(135)

53
(159)

-

-

-·

19
(S7) __

2S
(75)

33
(99)

41
(123)

SI
(153)

61
(1 ~3)

-~16)

-

-

-

22
(66)

31
(93)

40
(120)

(ISO)

so

62
(186)

75
(225)

(267)

105
(315)

121
(364)

-

-

-

26
(78)

36
(108)

47
(141)

60
(180)

74
(222)

89
(267)

107
(321)

125
(375)

145
(435)

-

-

-

31
(93)

43
(129)

S7
(171)

73
(219)

91
(273)

111
(333)

132
(396)

156
(468)

181
(543)

Over
36000
up to
70000

.

Over
70000

72

89

.

up to

140000
Over

140000

to
210000
Over
210000

grade under conditions as listed:
Machine.

Grade

Condition

Loader>

30%

Loaded to manufacturers gross masi (weight)
rating and distribution. Bucket to be in
SAE carry position.

Dumpero &

2S'!.

Loaded to manufacturers gross machine
moss (weight} roting and distribution.

Grod.r1

30%

Cutting edge to be in the transport

Cranes &

25%

Unloaded, with components in the
transport position as recommended by

30%

Lowest port of cutting edge to be 460 mm
(I B in) above test surface.

Tractor Scrapers

position.
Excavotor1

the manufacturer.

Trocton with

td. Dozer

The criteria shall apply to both forward and reverse directions.
4.1.3 SYSTEM RECOVERY-With the machine stationary, the service braking
systems primary power source shall have capability of delivering at least 703
of maximum brake pressure measured at the brakes when the brakes are fully
applied twelve ( 121 times at the rate of four (4) applications per minute with
the engine at maximum governed rpm for dumpers, tractor scrapers, cranes
and exca•·ators; and twenty (20) times at the rate of six (6) applications per
~inute with the engine at maximum governed rpm for loaders, graders, and
td. tractors with dozer.
4.1 A \VA1t.'<ING DEVICE-The service braking system using stored energy
shall be equipped with a warning device which actuates before system cir~

drops below 50% of the manufacturers specified maximum operating energy
level. The device shall be readily visible and/or audible to the operator, and
provide a continuous warning. Gauges indicating pressure or vacuum shall not
be acceptable to meet these requirements.
4.2 Emergency Stopping System-AU machines shall be equipped with
an emergency stopping system.
·4.2.l STOPPING PERFORMANCE-The emergency stopping system, when..
tested in accordance with Section 5, shall stop the machine within the distances shown in parenthesis in the appropriate table.
4.2.2 EMERGENCY APPLICATION-The emergency system shall be capable of
being applied by a person seated in the operator's seat. The system shall be
arranged so that it cannot be released from the operator's seat after any
application unless immediate reapplication can be made from the operator's
seat to stop the machine or combination of machines.
·
4.2.2.l In addition to the manual control, the emergency stopping system
may also be applied automatically. If an automatic emergency stopping
system is used, the automatic application shall occur after the warning device
is actuated.
4.3 Parking System-All machines shall be equipped with a parking
system capable of being applied by a person seated in the operator's seat.
4.3.1 PARKING SYSTEM PERFORMANCE-The parking system shall have capability equivalent to holding the machine stationary on a 15% ·dry swept
concrete grade under all conditions of loading. This criterion shall apply to
both forward and reverse directions.
4.3.2 REMAIN APPLIED-The parking system while applied shall maintain
the parking performance in compliance with paragraph 4.3.1 despite any
contraction of the brake parts, exhaustion of the source of energy or leakage of
any kind.
.

4

APPENDIX A

Page 4
41.189

TABLE 3-COMBINATION DUMPERS AND DUMPER TRAINSBrake Performance Requirements {SI Units)

T~BLE 2-DUMPERS-Braktt Performance Requirements (SI Units)

' Mac~ine Speed, km/h
Machine

24

MC.11,

32

Machine Speed, km/h

40

48

kg

Service Brake Maximum Stopping Distance-Metres
(Emergency Brake Maximum Stopping Distance-Metres)
Up to
45000

10.9
(27.1)

17.0
(46.2)

26.5
(70.4)

36.0
(99.5)

Over
45000

14.2
(31.6)

22.3
(52.1)

32.1
(77.7)

43.5
(108.5)

lo·

90000

Over
90000
to
180 000

19.2
(38.1)

Over
180 000

24.2
(44.9)

29.0
(60.9)

35.6
(69.9)

40.4
(88.7)

48.8
(99.9)

53.5
(121.6)

63.5
(135.0)

Machine
Mass,
kg

24

40

32

48

Service Brake Maximum Stopping Distance-Metres
(Emergency Brake Maximum Stopping Distance-Metres)
Up to
45000

10.9
(27.1)

17.9
(46.2)

26.5
(70.4)

36.9
(99.5)

Over

17.6
(36.0)

26.8
(58.1)

37.6
(85.1)

50.2
(117.3)

25.9
(47.1)

37.9
(72.9)

51.5
(103.7)

(139.5)

37.6
(62.7)

53.4
(93.6)

71.0
(129.6)

90.2
(170.6)

45000
to
90000
Over

90000
to
180 000
Over
180000

Brake Performance Requirements (U.S. Cust 0mary Units)

65.9

Brake Performance Requirements (U.S. Customary Units)

Machine Speed, mph
Machine Speed, mph

Machine
Mass,
lb

15

20

25

30

Service Brake Maximum Stopping Distance-Feet
{Emergency Brake Maximum Stopping Distance-Feet)
Up to
100 000

36
(90)

59
(153)

88
(234)

122
(330)

Over
100 000
lo
200 000

47
(105)

74
(173)

106
(258)

144
(360)

Over

64
(126)

96
(202)

134
(294)

177
(403)

200000
lo
400 000

Over
400 000

80
(149)

118
(231)

161
(331)

210
(448)

5. Brake Criteria
5.1 Facilities and Instrumentation
5.1.1 The test course shall consist of a clean swept, level, dry concrete or
other specified surface of adequate length to conduct the test. The approach
will be of sufficient length, smoothness, and uniformity of grade to assure
stabilized travel speed of the machine. The braking surface shall not have over
13 grad,;_ in the direction of travel, or more than 33 grade at right angles to
the direction of travel.
5.1.2 An instrument to measure the stopping distance with an accuracy of
::!:1%.
5.1.3 A means to measure the test speed with an accuracy of ::!:5% of actual
speed.
5.1.4 A means for detcrminin~ the machine mass (weight).
5.1.5 A means for measuring the brakin.~ system etiergy level as required in
paragraphs 4.1.3 and 4.1.4.
5.1.6 A means for measuring the force required by the operator to actuate
the braking system.
5.2 Test Requirements
5.2.I All tests to be conducted with the applicable braking system fully
charged.
5.2.2 Stoppin.i: tests to be conducted under the following conditions:
Machine

loaders

Condition
Unloaded, with bucket in SAE carry position

{Reference SAE J732c {June, 1975)).
Dumpers &
Tractor Saapers

loaded to manufacturers gross machine moss
(weight) rating and diStribution.

Graders

Cutting ·edge to be in the transport position.

Cranes &

Unloaded, with componenh in the transport

Excavators

position as recommended by the manufacturer.

Tractors with

Lowest port of cutting edge to be 460 mm
{ 18 in) above test surface.

td. Dozen

Machine
Moss,
lb

15

25

20

30

Service Brake Maximum Stopping-Feet
(Emergency Brake Maximum Stopping Distance-Feet)
Up to
100 000

36
(90)

(153)

88
,(234)

122
(330)

Over
100 000
to
200000

58
(119)

89
(192)

125
(282)

166
(389)

86
(156)

125
(241)

...171
(344)

221
(462)

124
(207)

177
(310)

235
(429)

290
(565)

Over

,•'

200000
to
400 000
Over
400000

59

"'

5.2.3 Stopping distance to be measured in metres (feet) from the point at
which the brake control is applied to the point at which the machine is
stopped.
5.2.4 Stopping tests to be conducted from at least one speed for each
machine as listed:
Machine

Speeds

Loaders, Tractors

Not less than 26 km/h (16 mph) or maximum
speed if less than 26 km/h (16 mph).

ed. with Dozen
Dumpers, Tractor

Scrapers

Not less than 32 km/h (20 mph) or maximum
speed if less than 32 km/h (20 mph).

Graders

Not less than 30 km/h { 18 mph) or
maximum speed if less than 30 km/h
(18 mph).

Crones,

Not less than 32 km/h (20 mph) no more
than 48 km/h. (30 mph) or maximum speed if
less than 32 km/h (20 mph).

Excavators

5.2.5 Stopping test shall be conducted with the transmission in gear commensurate with the speed required in paragraph 5.2.4. The power train may
be disengaged prior to completing the stop.
5.2.6 Auxiliary ret'lrders shall not be used in the test unless the retarder is
simultaneously actuated by the applicable brake system control.
5.2. 7 Maximum allowable operator forces to actuate braking sys!ems as
defined in Section 3 are 890 N (200 lb) for a foot operated system,.and 535 N
( 120 -lb) for a hand operated system.

175

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

... 31 l9\D

333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

WALTER JOE BLANC,
Complainant,
v.
BROWN & ROOT, INC.,

)
)
)
)
)
)
)
)

COMPLAINT OF DISCHARGE,
DISCRIMINATION OR INTeRFERENCE
DOCKET NO. WEST 82-186-DM

)

Respondent.

)

)
~~~~~~~~~~~~~~~~~~

Appearances:
Mr. Walter Joe Blanc
722 Hemlock Drive, Grand Junction, Colorado
Appearing Pro Se

81501

Peter R. McLain, Esq., Wilson, Brown & Faulk
P.O. Box 4611, Houston, Texas 77210
For the Respondent
Before: Judge John J. Morris
DECISION
Complainant Walter Joe Blanc, (Blanc), brings this action on his. own
behalf alleging he was discriminated against by his employer, Brown and
Root, (B&R), in violation of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 ~seq.
The applicable statutory provision, Section 105(c)(l) of the Act, now
codified at 30 u.s.c. 815(c)(l), in its pertinent part provides as
follows:
No person shall discharge or in any other manner discriminate
against ••• or. otherwise interfere with the exercise of the
statutory rights of any miner ••• because such miner ••• has
filed or made a complaint under or relating to this Act, including a complaint notifying the operator or the operator's
agent, or the representative of the miners ••• of an alleged
dang~r or safety or health violation ••• or because such minet
••• 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 ••• on behalf of himself or others of any
statutory right afforded by this Act.

176

After notice to the parties a hearing on the merits was held in Grand
Junction, Colorado on November 3, 1982.
Complainant elected not to file a post trial brief.
a post trial brief.

Respondent filed

ISSUE AND SUMMARY
The issue on the merits is whether respondent discriminated against
complainant, a safety supervisor, in violation of the Act.
The evidence is generally without substantial conflicts. Complainant's evidence seeks to prove he was fired because he detected and
required the abatement of· substandard mining practices by Gilbert Western,
(Gilbert), a subcontractor. Respondent's evidence seeks to establish a
business justification for discharging complainant. The proffered
justification arises from incidents of unprotected activity.
COMPLAINANT'S EVIDENCE
Walter Joe Blanc testified on his own behalf:
He was employed by B&R on September 24, 1981 (Tr. 8). Wayne Pierce, a
B&R supervisor, offered him the position of safety supervisor at $2400 a
month (Tr. 9, 12). Pierce also offered Blanc additional employment
incentives (Tr. 9). Blanc had 10 years experience as an MSHA coal mine
inspector (Tr. 13, 14, 16).
Blanc was, in fact, hired as a safety inspector at $14.50 an hour (Tr.
52-53, Rl). After two or three weeks he was told he would-not receive the
safety supervisor's position (Tr. 20, 54). Blanc was terminated on
November 3, 1981 (Tr. 8).
Blanc's duties included the inspection of the work areas of Tectonic
Construction, Sunnnit Construction, and Gilbert at the Colony Shale Oil
project. These companies were all subcontractors of B&R, the general
contractor (Tr. 19, 20, 22).
After he started Blanc found explosives and dynamite scattered around
the Gilbert area (Tr. 22). Prior to this time Blanc detected many unsafe
conditions (Tr. 23, Cl). He kept a daily list of these substandard
conditions which he gave to William Minton, his supervisor, when he was
terminated (Tr. 24).
Gilbert personnel would become outraged on almost every substandard
condition Blanc. would point out to them (Tr. 25). Blanc discussed such
conditions with Gilbert supervisors Reseigh, Schnopp, Burkey, or Neff (Tr.
26). At least five substandard conditions would be corrected each day (Tr.
27).
After he was terminated Blanc prepared an additional list of these
substandard conditions. The list, only partially complete, contains fewer

177

conditions than the list he gave to his supervisor when he was terminated.
The list, as supplemented by the tes.timony, shows the following substandard conditions were detected by Blanc:
1. No berm along the elevated haulage road for a distance of
about 40 feet (Cl). This condition was discussed with Reseigh or Schnopp.
Blanc could not recall their reaction (Tr. 28).
2. Various pieces of mobile equipment were parked unblocked and
unattended (Cl). Blanc discussed this condition with Reseigh or Schnopp.
They would "get mad" about having to abate but they would eventually do it
(Tr. 3, 28).
3. Inoperative ·overwind device on the crane (Cl).
condition was discussed with Reseigh or Schnopp (Tr. 28).

This

4. Safety equipment check card not filled out on the triple boom
drill (Cl). This was discussed with Reseigh or Schnopp but they didn't get
too upset (Tr. 29).
5. Battery lid cover loose and unsecured on triple boom drill
(Cl). This would have been discussed with Gilbert's mechanic, Minton. He
didn't get upset like the rest of them (Tr. 30).
6. No fire extinguishers on triple and double boom drills, two
air compressors, and oil storage station (Cl). This condition was
discussed with Schnopp (Tr. 30).

7.

Inoperative backup alarm on crane (Cl).

8. Broken roof glass in crane (Cl). This condition and the
preceding one were discussed with mechanic Minton who didn't get out of
hand (Tr. 30, 31).

9. From October 19, 1981 to November 3, 1981 tagline was not
used on suspended equipment (Cl). This practice was discussed with Reseigh
or Schnopp (Tr. 31). They got upset and aggravated (Tr. 31).
'.

10. October 19, 1981 to November 3, 1981 workmen were observed
below suspended load (CI). This practice was discussed with Reseigh or
Schnopp (Tr. 31).
11. Paper, aluminum cans, anq other trash was scattered throughout the area (Cl). Reseigh and Schnopp were not upset over this condition
(Tr. 32).
12. The truck carrying explosives: it lacked a cover lid for detonators, it was not identified .as one carrying·; explosives, and it was not
blocked to prevent motion. Smoking was observed within ten feet of the
truck (Cl). This was discussed with Reseigh. He was angry .and upset but
took care of it right away (Tr. 32).

178

13. On two separate days two sticks of damaged explosives were
observed outside of and in the tunnel. A detonator cap was found in the
back of the explosives truck. Truck was not blocked to prevent motion
(Cl). This condition was discussed with Schnopp (Tr. 32). He got upset
and aggravated but took care of it right away (Tr. 33).

14. No smoking signs were not placed on the truck carrying
diesel fuel (Cl). This was discussed with Schnopp or Bill Milton
(mechanic)(Tr. 33). Blanc didn't think this was abated (Tr. 33).
15. Diesel fuel was stored in two 5 gallon containers (Cl).
Blanc discussed this with Schnopp but couldn't recall his reaction (Tr.
33).

16. A backhoe and front end loader were taken into the tunnel
without emissions control for the diesel exhaust (Cl). This situation was
discussed with Reseigh or Schnopp who tried to convince Blanc that the
equipment had emissions controls (Tr. 33).
17. The lunchroom was cluttered with tin cans and paper trash
(Cl) • . This condition was discussed with Schnopp who didn't seem to get too
upset (Tr. 34).
18. The roof in the tunnel was not supported in an area about
six feet wide and ten feet in length (Cl). Blanc discussed this with
Reseigh who became outraged. Blanc had a copy of the ground support plan.
Reseigh through up his hands, replied with an obscenity, and left the
property like a wild man (Tr. 34, 43). Schnopp with whom Blanc also
discussed this was upset because they'd have to put in ground support (Tr.
34). The roof support incident happened the same day Blanc was terminated
(Tr. 43, 61).

In the three and one half weeks Blanc was on the Gilbert site the only
conditions not abated were the roof support problem [No. 18] and the broken
glass in the crane [No. 8] (Tr. 60). Blanc didn't know if the roof
supports were installed since this incident occurred on the day of his
termination (Tr. 61).
Minton terminated Blanc on November 3, 1981 between noon· and 3 p .m.
(Tr. 35). Minton said he was terminating Blanc for his failure ~o get
along with the contractor. Minton said he couldn't go around "putting· out
fires" (Tr. 30). At this meeting no statements were made about Blanc's
safety complaints issued against Gilbert nor was there any discussion about
Blanc's job activities (Tr. 38, 40, 41). At the termination conference
Hohon said Blanc was in his hair and he (Hohon) had only been there a week
(Tr. 41).
On two prior occasions Blanc's supervisor, Minton, had told him to
take it easy on Gilbert because they had a hard money contract (Tr. 41-42).
Hard money, according to Blanc, means they don't want any slowdown (Tr.
43).

179

On one occasion Blanc was riding the mantrip van down the mountain.
When riding the van everyone must sign his name to a piece of paper.
Except for the driver only Gilbert employees were present. When the paper
was returned from the rear of the van someone had written "sucks" by
Blanc's name (Tr. 62). Blanc stated if any one was man enough to admit it'
he'd stop the van, get out, and take care of the situation (Tr. 62). By
that Blanc meant he was going to "knock him on his ass" (Tr. 62-63). This
was not Blanc's normal approach to problems although he did get upset with
safety director Dave Allen over a flagrant violation (Tr. 63).
On another occasion, after the van incident, Blanc noticed part of his
lunch was missing from his lunchbox. Blanc didn't say anything until he
checked with his wife (Tr. 65). The next morning he held his only safety
meeting. At the meeting he told the Gilbert employees that whoever got
into his lunchbox would need an ambulance, i.e., Blanc was going to "knock
them on their ass" (Tr. 65, 66).
RESPONDENT'S EVIDENCE
Respondent's witnesses were William Minton (B&R safety director),
Walter Saunders (Blanc's inunediate supervisor), Gary Bates (Exxon's mine
superintendent and client's representative), and Bob Reseigh (Gilbert
project manager).
Witness William Minton testified as follows:
As B&R's safety director, he was responsible for safety and health at
Colony Shale Oil Project (Tr. 94, 95). Blanc was responsible for the mine
bench area (Tr. 96). Blanc was hired as a safety inspector at $14.50 per
hour because of his knowledge about MSHA and mining practices (Tr. 106).
Minton explained to Blanc that he shouldn't shut down Gilbert for
non-serious violations (Tr. 111). B&R could be back charged for this and
it would affect productivity (Tr. 111). Blanc was counselled on two
different occasions because of complaints by Reseigh (Gilbert project
manager) and Gary Bates (Exxon man~ger) (Tr. 111).
Minton first heard about the middle of October from Vance English that
Gilbert was being shut down for improperly marked gas cans and for workers
being on top of a trailer (Tr. 112, 113). Minton went up to the mountain
and didn't see anything that would cause a shutdown (Tr. 113-114).
It is B&R pol.icy that if a safety inspector sees employees in a
situation of inuninent danger he has the authority to shut down the
operation (Tr. 115). Various remedies are available to the inspector (Tr.
116-117). Minton did nothing about this particular complaint (Tr.
117-118).

It was over two weeks later when Reseigh came to Minton and said they
were being harassed by Rlanc and shut down for no reason at all (Tr. 118,
119). Minton's investigation showed nothing serious that should cause a
shutdown (Tr. 119). Minton counselled with Blanc. He explained that B&R
was subject to back charges if a shutdown occurred and the situation was
not one of imminent danger and life threatening (Tr. 120, 121). Minton

180

explained that Gilbert had a "hard money contract" .that is, a unit price
contract (Tr. 122).
Gary Bates (Exxon) complained to Minton about an incident that arose
when Blanc, Bills, and Reseigh were talking. Bills brushed against Blanc
who automatically took offense. He put his fists up and told Bills he
better never touch him again (Tr. 122). Minton talked to Bills and
Reseigh, but not Blanc, about this incident (Tr. 123).
About November 3 Gates came to Minton about a shutdown (Tr. 124-125).
Minton felt Blanc was abusing his authority as an inspector (Tr. 125).
At his termination meeting Minton told Blanc he had no alternative but
to terminate him for failure to get along with the subcontractor (Tr. 125).
Blanc was quiet. He did not deny the lunchbox, the van, and the Bills
incidents (Tr. 125). Blanc's discharge slip reads that he was fired for
failure to get along with the subcontractor (Tr. 145-146).
Minton's first counselling session with Blanc was after Reseigh
complained about Blanc shutting Gilbert down. The second session was over
what hours Blanc was to work. The fourth session was after the Bills
incident. This was on the date of termination (Tr. 128). There were five
counselling sessions before Blanc was terminated (Tr. 129). The fifth and
final session was on the day Blanc was fired (Tr. 129). Minton never
threatened Blanc's job nor did he at any time tell him not to note or
correct viola.tions or defects (Tr. 129, 133-134).
Minton learned of the incident involving ro6f supports in the tunnel
on November 3 after Blanc had been terminated (Tr. 135). Bates and Reseigh
came to Parachute (Colorado), after Blanc had left, and explained they had
put in additional bolts (Tr. 135). Reseigh said this was not an innninent
danger situation although bolts were required in the drawings (Tr. 135).
~lane hadn't talked about the bolts at the termination meeting (Tr. 135).
Prior to Blanc being terminated Minton didn't have any knowledge of the
unsafe conditions for which Gilbert was cited (Tr. 158-159).
Blanc never told Minton he was having problems with the subcontractors (Tr. 161).
Blanc's termination on November 3, 1981 was triggered by the
complaints of the subcontractor, the client, and the [disregard by Blanc of
the] counselling sessions. The final straw was the lunchbox incident (Tr.

159).
Witness Walter Saunders testified as follows:
He was Blanc's supervisor (Tr. 163). Saunders returned from leave
about October 26 •. At that time Minton informed him that there were some
problems on the mine bench. Some animosity had developed between Gilbert
personnel and Blanc. Gilbert was complaining they were being shutdown
unnecessarily. Allen and Schnopp said the same thing (Tr. 165-166).
Saunders did nothing but he intended to keep his eye on the situation (Tr.

166).

181

Saunders was asked by Minton to investigate the lunchbox incident. He
interviewed most of the people who had been at the safety meeting (Tr. 167,
168). The only topic at the safety meeting was Blanc's lunchbox (Tr. 168).
Saunders related this information to Minton (Tr. 168).
Saunders was present at the November 3 termination meeting. Blanc's
defense, in essence, was that this was the only way he knew how to do it
(Tr. 169, 170).
B&R procedure is for an inspector to note violations and report them
to his supervisor (Tr. 170). Blanc mentioned explosives lying around (Tr.
171). The problems Blanc related to Saunders were the lunchbox and the
van incidents as well as the lack of communication with Gilbert (Tr. 171).

Saunders never threatened Blanc for shutting down the job when there
was no imminent danger (Tr. 173).
Dave Allen's complaints were that Blanc was either shutting down the
operation or threatening to do so when it wasn't justified (Tr. 177).
Blanc was terminated because of his inability to talk with subcontractors and because he was abrasive (Tr. 179, 180). It is improper for
an inspector to threaten someone.with bodily harm (Tr. 182).
Witness Gary Bates testified as follows:.
He was the representative for Exxon USA, and as such he was
responsible for the day to day operation of the Colony Shale Oil Project
(Tr. 184).
Joe Blanc first came to Bates' attention shortly after Gilbert.
mobilized (Tr. 188). A series of statements were made to Bates which he
considered to be overzealousness on Blanc's part (Tr. 189). It was not so
much what Blanc said but how he stated it (Tr. 189). Blanc was using
abusive language and a tough guy attitud~ (Tr. 190). Bates asked Minton to
straighten this out (Tr. 190).
About a week later the Bills incident (when Bills brushed against
Blanc) was brought to Bates' attention (Tr. 191). Bates contacted Minton
because he was concerned abput a fight (Tr. 191). Minton told Bates he'd
talk to Blanc (Tr. 191).
Another matter brought to Bates' attention was the lunchbox incident
which Bates describes as Blanc "lining up" the Reseigh grol,lp and saying
he'd send them off the hill in an ambulance if it happened again (Tr. 192).
Bates told Minton this conduct is "completely unacceptable and we can't
have that" (Tr. 192). Minton said he'd look into it and try to get it
resolved (Tr. 192).
Bates never made any recommendation concerning Blanc's-personnel
status (Tr. 192).

182

Bates learned of the roof bolts incident after Blanc had gone (Tr.
193).
Bob Reseigh testified as follows:
He was Gilbert's project manager, and he started on the project on
October 26, 1981. By November 5, 1981 the tunnel extended 60 to 70 feet
(Tr. 211-213). Gilbert had a fixed price contract where Gilbert was paid
in lineal feet of tunnel (Tr. 213).
Reseigh and Blanc disagreed over the way things should be done. Blanc
would note violations and bring them to Reseigh's attention (Tr. 214, 215).
Basically Blanc wanted it corrected now (Tr. 215). It was Gilbert's policy
to correct, if possible (Tr. 215).
On several occasions Blanc shutdown several pieces of equipment for
not having fire suppressors. MSHA did not require such suppressors (Tr.
215-217). Reseigh complained to Bates (Tr. 216-217).
About a week or 10 days later they were about 40 to SO feet into the
access tunnel (Tr. 219). Blanc wanted ventilation. Reseigh hestitated
because subsequent blasting would blow it up (Tr. 219). Reseigh went to
Bates and told him they could legally advance 100 feet (Tr. 219). Bates
agreed. Reseigh didn't know if Blanc had shut down the tunnel (Tr. 219).
Blanc called a safety meeting and threatened to carry some people off
of the mountain because a sandwich was missing from his lunchbox. Reseigh
told Saunders about it. Reseigh felt they couldn't have that kind of
animosity on the site (Tr. 220).
On one occasion [November 3] Blanc said Gilbert couldn 1 t dri 11. · The
plan called for rock bolts in back of the rib (Tr. 221). Normally such
bolts are installed behind the Jumbo (Tr. 222). The Jumbo was pulled out,
muck brought in, and Gilbert installed the roof bolts (Tr. 222). Reseigh
went down and talked to Bates and after lunch they both went to Minton in
Parachute, some 16 to 20 miles from the job site (Tr. 222).
Reseigh said something had to be done about Blanc (Tr. 222-223).
was told that something had been done (Tr. 222-223).

He

Reseigh's workers were instructed to get along with Blanc (Tr.
223-224).
On one occasion Bills was talking with his hands and he touched Blanc,
who got "stiff". 'Blanc told Bills not to touch him again, that he did not
like to be touched. He was not belligerent but there was no question he
didn't want to be touched (Tr. 226-227). Bills is 5 foot, 7 inches tall
and 68 to 75 years old (Tr. 227). [At the hearing the Judge observed that
Blanc appears taller and younger than Bills].
On one occasion Blanc wanted all work to cease in the tunnel face
during blasting operations (Tr. 230). When Gilbert blasts in a tunnel they

183

remove the workers out but they_do not remove them during the charging
process (Tr. 230).
As a rule Gilbert was given time to correct [a defect] before they
were shut down (Tr. 231).
It is very possible that Blanc brought up five safety or health
violations every day (Tr. 243).
Reseigh only complained twice about Blanc. The first instance was
that Blanc was inspecting them unnecessarily for trivial problems. On the
day Blanc was no longer assigned to the mine bench Reseigh wanted to be
sure the problem had been taken care of so he went to see Minton (Tr. 247).
DISCUSSION
The Cormnission established the general principles for analyzing
discrimination cases under the Mine Act in Secretary ex rel. Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on other
grounds sub nom, Consolidation Coal Co. v. Marshall, 663 F 2d 1211,
(3d Cir. 1981), and Secretary ex rel Robinette v. United Castle Coal Co., 3
FMSHRC 803 (April 1981). In these cases the Cormnission ruled that a
complainant, in order to establish a prima facie case of discrimination
bears a burden of production and persuasion to show that he was engaged in
protected activity and that the adverse action was motivated in any part by
the protected activity. Pasula 2 FMSHRC 2799-2800; Robinette, 3 FMSHRC at
817-818.
At this point it is appropriate to consider the status of Blanc's
activities. The vast majority of discrimination claims arising under the
Act are generated by miners engaged in duties other than those of a safety
inspector. I find nothing in the text of the Act or in the legislative
history that indicates Congress intended to exclude a safety inspector
from the protection of the discrimination portion of the Act. An
operator's safety inspector bears an important function in helping fulfill
the purposes of the Act since his duties will ordinarily seek to promote
safety and health. Under Pasula and Robinette and'their progeny I conclude
that good faith complaints of unsafe and unhealthy conditions by a safety
inspector in the ordinary course of his duties are protected under the
Act.
Having resolved Blanc's status we wi'll go to the Commission's further
ruling in Robinette: to rebut a prima facie case a operator must show
either that no protected activity occurred (in view of the ruling as to
Blanc's status B&R cannot establish that defense) or that the adverse
action was in no part motivated by protected acti_vity, 3 FMSHRC 817-818 and
N. 20. If an operator cannot rebut the prima fac'ie case in the foregoing
manner it may nevertheless defend by proving that it was also motivated by
the miner's unprotected activities and that it would have taken the adverse
action in any event for the unprotected activities alone, Pasula, 2 FMSHRC
2799-2800.

184

The operator bears an intermediate burden of production and persuasion
with regard to these elements of defense. Robinette, 3 FMSHRC at 818 n.
20. This further line of defense applies only in "mixed motive" cases,
i.e., cases where the ·adverse action is motivated by both protected and
unprotected activity. The Commission made clear in Robinette that the
ultimate burden of persuasion does not shift from the complainant in either
kind of case. 3 FMSHRC at 818 n. 20. The foregoing Pasula-Robinette test
is based in part on the Supreme Court's articulation of similar principles
in Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
285-87 (1977).
In Sec. ex rel. Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November
1981), pet. for review filed, No. 81-2300 (D.C. Cir. December 11, 1981),
the Commission affirmed the Pas~la-Robinette test, and set out the
following proper criteria for analyzing an operator's business justification for adverse action:
Commission judges must often analyze the merits of an
operator's alleged business justification for the
challenged adverse action. In appropriate cases, they may
conclude that the justification is so weak, so implausible,
.or so out of line with normal practice that it was a mere
pretext seized upon to cloak discriminatory motive. But such
inquiries must be restrained.
The Commission and its judges have neither the statutory
charter nor the specialized expertise to sit as a super
grievance or arbitration board meting out industrial
equity. Cf. Youngstown Mines Corp., 1 FMSHRC 990, 994 (1979).
Once it appears that a proffered business justification is
not plainly incredible or implausible, a finding of pretext
is inappropriate. We and our judges should not substitute
for the operator's business judgment our views on "good"
business practice or on whether a particular adverse action
was "just" or "wise." Cf. NLRB v. Eastern Smelting & Refining
Corp., 598 F. 2d 666, 6TI (~Cir. 1979). The proper focus,
pursuant to Pasula, is on whether a credible justification
figured into motivation and, if it did, whether it would have
led to the adverse action apart from the miner's protected
act1v1t1es. If a proffered justification survives pretext
analysis •.• , then a limited examination of its substantiality
becomes appropriate. The question, however, is not whether
such a justification comports with a judge's or our sense of
fairness or enlightened business practice. Rather, the·
narrow statutory question is whether the reason was enough
to have legitimately moved that operator to have disciplined
the miner. Cf. R-W Service System Inc., 243 NLRB 1202, 120304 (1979) (articulating an analogous standard).
3 FMSHRC at 2516-17. Thus, the Commission first approved restrained
analysis of an operator's proffered business justification to determine
whether it amounts to a pretext. Second, the Commission held that once it
is determined that a business justification is not pretextual, then the

185

I

judge should .determine whether "the reason was eno.ugh to have legitimately
moved the operato~' to take adverse acti~n.
By a "limited" or "restrained" examination of the operator's business
justification the Commission does not mean that an operator's business
justification defense should be examined s~perficially or automatically
approved once offered. Rather, the Cormnission intends that its Judges, in
carefuly analyzing such defenses, should not substitute his business
judgment or sense of "industrial justice" for that of the operator. As the
Commission recently stated "our fµnction is not to pass on the wisdom or
fairness of such asserted business justifications but rather only to
determine whether they are credible and, if so, whether they would have
motivated the particular operator as claimed." Bradley v. Belva Coal Co.,
4 FMSHRC 982, 993 (June 1~82).
With the Commission directives in mind we will examine the defense
asserted by B&R. The defenses are succinctly stated by Blanc's supervisor
Minton. Blanc was terminated because of complaints by the subcontractor
(Gilbert), the client (Exxon), and the counselling sessions. The final
straw was the lunchbox incident (Tr. 159). B&R in its post trial brief
also argues that the Bills and the van incidents support B&R's business
justifications.
We will examine the record. Gilbert's complaints: Manager Reseigh
complained twice. Once was over being unnecessarily inspected over trivial
problems (Tr. 247). The second time was apparently when Reseigh went to
see Minton himself (Tr. 247). At that point Blanc had already been
terminated.
The client's complaints: Exxon, through its manager Gary Bates, asked
Minton to "straighten out" Blanc's attitude. Bates dislikes an attitude
of "I am not here to help your safety program, I'm here to shut you down"
(Tr. 190).
Further complaints by the client arose from the Bills incident.
was concerned about a fight and again contacted Minton (Tr. 191).

Bates

Bates describes the lunchbox incident as Blanc "lining up" Reseigh's
group (Tr. 192). Bates admonished Minton stating "that type of behavior is
completely unacceptable and we can't have that" (Tr. 192).
Three complaints by a client-owner in less than a three week period
would motivate Minton to fire Blanc. A miner's unsatisfactory past work
record is one of the criteria discussed in Br~dley v. Belva Coal Company.
On the basis of the Commission directives I conclude that the business
justification is not pretextual and the reasons were enough to have
legitimately moved B&R to take adverse action against Blanc.
I have carefully examined Blanc's evidence. A cursory.review might
indicate that his facts establish a claim of retaliatory conduct. The
scenario: Blanc has been overzealous in enforcing safety regulations

186

against Messers.Reseigh, Schopp, Burkey, and Neff of the Gilbert Company.
The culmination comes when Blanc requires that roof bolts be installed in
the tunnel. This delays production. Reseigh storms out, goes to .Exxon's
Bates, and in turn they go to Minton who immediately fires Blanc for his
overzealous enforcement of the safety regulations.
For several reasons the evidence does not support this theory of the
case.
Blanc testified that he never advised Minton of the problems he was
having with Gilbert (Tr. 67, 68). Minton confirms this fact (Tr. 161).
Further, concerning the two hour termination meeting Blanc testified there
was no discussion about safety complaints Blanc has issued against Gilbert
(Tr. 38). This evidence combines with Minton's uncontroverted testimony
that he didn't learn of the roof bolts incident until after he had
terminated Blanc (Tr. 135).
Since Minton generally did not know about Blanc's disagreement over
safety conditions with Gilbert ·personnel nor about the roof bolt incident
these. factors could not have motivated Minton to fire Blanc.
Since the evidence fails to establish a case of discriminatory conduct
1n violation of the Act it is unnecessary to consider Blanc's claim of lost
wages and expenses.
Based on the foregoing facts and conlusions of law I enter the
following:
ORDER
The complaint of discrimination is dismissed.

Distribution:
Mr. Joe Walter Blanc, 722 Hemlock Drive
Grand Junction, Colorado 81501
Peter R. McLain, Esq., Wilson, Brown & Faulk
P.O. Box 4611, Houston, Texas 77210

18'1
*U.S. GOVERNMENT PRINTING OFFICE : 1983 0-381-569/5276