:MAY 1988
COMMISSION DECISIONS
05-12-88
05-10-88
05-13-88
05-13-88
05-26-88

WEST 86-108-R
SE
86-40-M
LAKE 86-121-R
WEVA 86-439-C
KENT 88-23-R

Pg.
Pg.
Pg.
Pg.
Pg.

591
594
603
612
624

Otis Elevator Company
Kenneth B. Miracle
J & K Construction Company
Sec. Labor for Jerry D. Aleshire and
others v. Westmoreland Coal Co. & UMWA
North American Sand & Gravel Co.
Sec. Labor for James E. Bowman v.
Consolidation Coal Company
Triple B. Corporation

PENN 87-97
LAKE 88-44
WEVA 87-61
WEVA 84-344-D

Pg.
Pg.
Pg.
Pg.

627
640
646
653

LAKE 88-7-M
WEVA 88-217-D

Pg. 660
Pg. 664

KENT 87-40

Pg. 666

William G. Binion v. Keystone Coal Co.
Charles H. Sisk v. Charolais Corp., etc.
Sec. Labor for William Lee Cook v. Patton
Rock Products
Mary M. Ball v. FMC Wyoming & MSHA
Sec. Labor for Harry Thomas v. Arch of
Kentucky, Inc.
H. B. Zachry Company
Kenneth J. Pedersen v. Darmac Associates
Cen-Tex Ready Mix Concrete Co.
Consolidation Coal Company
Cen-Tex Ready Mix Concrete Co.

PENN 87-209-D
KENT 87-212-D
SE
88-39-DM

Pg. 6 72
Pg. 674
Pg. 6 75

WEST 88-5-DM
KENT 88-37-D

Pg. 678
Pg. 679

CENT 88-29
PENN 88-58-D
CENT 88-19-M
WEVA 88-76
CENT 87-83-RM

Pg.
Pg.
Pg.
Pg.
Pg.

WEST 87-130-R

Pg. 689

Western Fuels-Utah, Inc. (Order)
Michael W. Brunson
Youghiogheny & Ohio Coal Company
Local 2333, UMWA v. Ranger Fuel Corporation
Rivco Dredging Corporation

ADMINISTRATIVE LAW JUDGE DECISIONS
05-02-88
05-04-88
05-05-88
05-10-88
05-12-88
05-12-88
05..;...13-88
05-13-88
05-17-88
05-17-88
05-18-88
05-18-88
05-23-88
05-25-88
05-26-88
05-26-88
05-31-88

680
683
684
685
687

ORDER
05-20-88

Emery Mining Corporation and/or
Utah Power & Light Company

MAY

1988

Review was granted in the following cases during the month of May:
Charles Conatser v. Red Flame Coal Company, Docket No. KENT 87-168-D.
(Judge Koutras, March 29, 1988)
Secretary of Labor, MSHA v. Kaiser Coal Corporation, Docket No.
WEST 88-131-R. (Judge Melick, April 20, 1988)
No cases were filed in which review was denied.

COMMISSION DECISIONS

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

May 12, 1988

WESTERN FUELS-UTAH, INC.
Docket No. WEST 86-108-R

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 86-245

. v.

WESTERN FUELS-UTAH, INC.

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners
ORDER

BY THE COMMISSION:
The Commission issued its decision in this matter on March 25,
1988, affirming the decision of Commission Administrative Law Judge Roy
J. Maurer, in which the judge concluded Western Fuels-Utah, Inc.
("Western Fuels") was liable for a violation of a mandatory safety
standard and assessed a civil penalty of $250 for the violation.
10 FMSHRC 256 (March 1988). On April 22, 1988, Western Fuels filed a
petition for review of the Commission's decision in the United States
Court of Appeals for the District of Columbia Circuit (No. 88-1313). In
connection with its appeal, Western Fuels has submitted to the
Commission a motion requesting a stay of the Commission's decision,
during the pendency of judicial review, insofar as that decision
requires payment of the $250 civil penalty. See 30 U.S.C. § 816(c);
Fed. R. App. P. 18. Counsel for the Secretary of Labor has filed an
opposition to this moti9n, which states in part:
While a contested civil penalty continues to be
litigated, the Mine Safety and Health Administration
Off ice of Assessments routinely suspends any action
to collect the [civil penalty] monies involved.

591

This policy has been and continues to be followed in
this case.
Secretary's Opposition at 1. Given the Secretary's representation that
the Department of Labor will not attempt to collect the civil penalty
involved in this matter during the pendency of appellate litigation,
there is no need for a stay of the Connnission's decision.
Accordingly, upon consideration of the motion and opposition, the
motion is denied.

c ,(~ ,,,t4..t,.__-·

Backley, Connnissioner

~~d.~-~
foyce A. Doyle, Connnissi6ner

.LJ

·y /I

Lastowka, Connnissioner

'JI
~~ I LLl<L~-i'-/
L. Clair Nelson, Commissioner

592

Distribution
Karl F. Anuta, Esq.
2120 13th St.
P.O. Box 1001
Boulder, Colorado 80306
Frederick L. Miller, Jr., Esq.
Jeffery N. Luthi, Esq.
Duncan, Weinberg, Miller & Pembroke, P.C.
1615 M Street, N.W.
Suite 800
Washington, D.C. 20036
Linda L. Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Roy Maurer
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia
22041

593

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

May 10, 1988

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 86-40-M

v.

MICHAEL W. BRUNSON

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982)(the "Mine Act" or
"Act"). The issue presented is whether Michael Brunson, within the
meaning of section llO(c) of the Mine Act, knowingly authorized a
violation of 30 C.F.R. § 56.9003. lf Commission Administrative Law

ll

Section llO(c) of the Mine Act states:
Whenever a corporate operator violates a mandatory
health or safety standard or knowingly violates or
fails or refuses to comply with any order issued
under this [Act] or any order incorporated in a
final decision issued under this [Act], except an
order incorporated in a decision issued under
subsection (a) of this section or section [105(c)]
of this [Act], any director, officer, or agent of
such corporation who knowingly authorized, ordered,
or carried out such violation, failure, or refusal
shall be subject to the same civil penalties, fines,
and imprisonment that may be imposed upon a person

594

Judge James A. Broderick determined that Michael Brunson, as an agent of
a corporate mine operator, knowingly authorized a violation of that
mandatory safety standard. The judge assessed a civil penalty of $300
against him. 9 FMSHRC 257 (February 1987)(ALJ). We conclude that
substantial evidence does not support the judge's decision.
Accordingly, we reverse.
In January 1985, the Brunson Construction Company~ Inc. ("Brunson
Construction"), an Alabama corporation, operated two sand and gravel
pits in Clarke County, Alabama, including Pit No. 4, the site involved
in this case. Two unsupervised employees, Charles Gwin, the operator of
a front-end loader, and Dwight Garrick, a laborer, worked at Pit No. 4.
W.D. Brunson was president of the corporation and, according to Gwin,
routinely visited Pit No. 4 "to see [if] everything [was] fine and then
he [would go] out." Tr. 42. W.D. Brunson 1 s son, Michael Brunson, was
Vice President of Brunson Construction, and was listed on the Department
of Labor's Mine Safety and Health Administration ("MSHA") legal identity
report as the company official with overall responsibility for health
and safety matters. Michael Brunson had never been to Pit No. 4 and had
visited the company's other pit only a few times. Most of his time was
spent in the company office at Saraland, Alabama. Tr. 63; Exh. G-1.
T.J. Johnson, listed on the MSHA report as superintendent in charge of
safety and health at Pit No. 4, had left the company some months prior
to January 1985.
On January 23, 1985, during a regular inspection at Pit No. 4,
MSHA Inspector Charles A. Bates observed Gwin seated in the front-end
loader with the motor running. The inspector joined Gwin in the cab and
proceeded to test the loader's brakes on level ground and inclines.
Having determined that the brakes were not holding due to leaks in the
air line and in the left front wheel brake booster, the inspector issued
a combined section 104(a) citation/section 107(a) imminent danger withdrawal order, 30 U.S.C. §§ 814(a) & 817(a), alleging a violation of 30
C.F.R. § 56.9003. (Although the citation/order stated that it had been
issued to Michael Brunson, it was actually issued to Gwin. Tr. 22-23;
Exh. G-2.) Repairs to the brakes were made, and the citation/order was
terminated on February 11, 1985.
Brunson Construction subsequently paid a civil penalty of $500
proposed by the Secretary of Labor for the violation of 30 C.F.R.
§ 56.9003. On February 25, 1986, the Secretary, pursuant to section
llO(c) of the Mine Act, filed a petition for assessment of an individual
civil penalty against Michael Brunson, alleging that, as an agent of the
under subsections (a) and (d) of this section.
30 U.S.C. § 820(c).
30 C.F.R. § 56.9003 provides:
Mobile equipment brakes:
Powered mobile equipment shall be provided with
adequate brakes.

595

corporate mine operator, he had knowingly authorized, ordered, or
carried out the violation of section 56.9003.
At the hearing in this matter, Michael Brunson represented
himself. ~/ The Secretary's principal witness at the hearing was Gwin,
upon whose testimony the judge based his findings of fact. Gwin
initially testified that he had not reported any brake problem to "Mike
Brunson" but had told "Mr. Brunson" of "a slight leak in the brakes"
either a long time before or at least four or five days prior to
issuance of the citation/order. Tr. 35. Judge Broderick asked Gwin to
which of the Brunsons he referred. In answer, Gwin repeated several
times that he meant W.D. Brunson. Tr. 35-36.
Counsel for the Secretary then asked for "a moment" and the
hearing went off the record. When the record reopened -- without
explanation as to what had transpired while off the record -- Gwin
testified that after the citation and innninent danger order had been
issued, he telephoned Michael Brunson at the company office to inform
him of MSHA's actions. Tr. 36.
The following exchange among counsel for the Secretary, Judge
Broderick and Gwin then occurred:

Q.

Do you remember telling [MSHA Special Investigator] Bob Everett that approximately one week
before [MSHA Inspector] Charlie Bates got there that
you reported to the boss man, Mr. Mike Brunson, that
the brakes were bad?

A. I can't recall that right now.
you said, before then?

It was a week,

Q.

Approximately a week before Charlie Bates got
there that you reported the brakes going bad to Mr.
Michael Brunson, your "boss man" as you called him?
A. I believe I told him, I do remember that now. I
told him, I did report it to Mr. Brunson, Mr. Mike,
yes, I did.

Q.

Mr. Mike, you mean this man right here?

A. Yes, sir.
before then.

Yes, sir.

JUDGE BRODERICK:

That was a week, I think,

Before the order was issued?

~/

Michael Brunson did not contest the violation of section 56.9003.
The only question before us is whether Michael Brunson knowingly
authorized the violation.

596

THE WITNESS:
they was bad.

Yes.

Was going bad, I didn't say

Tr. 37.
On cross-examination by Michael Brunson, Gwin testified that he
had told W.D. Brunson that, despite the leak, the brakes were holding.
Tr. 40. He also stated that the loader's brakes were working when he
started work on the day that the violation was cited, but that they were
not holding when Inspector Bates examined them later that day. Tr. 40.
When Gwin was asked again by the judge whether he had informed
W.D. or Michael Brunson of the brake problem, he again responded that he
had told "Mr. Brunson" of the brake leak. Tr. 43. Gwin also stated he
had informed "Mr. Brunson" that there was no danger at that time, and
had been told that "if there was any danger to shut the machine down and
as soon as he can [Mr. Brunson was] going to get the mechanic up there
to check it out •••• 11 Tr. 43. Asked again by the judge whether he had
talked with Michael Brunson, Gwin answered: "I had talked to Mr.
I
believe I had talked -- I can't recall but I believe I had talked to Mr.
Mike along about the same time. 11 Tr. 43. In answer to a further
question, Gwin indicated that he had called Michael Brunson after
talking with W.D. Brunson; the date of this later telephone conversation
was not established. Tr. 43-44. Gwin also testified that he could "not
recall" just what he had said to Michael Brunson but had told him that
the brakes were leaking yet holding, and had been instructed as follows:
"If the brakes is bad, Charlie, make sure you shut the machine down. 11
Tr. 44. Lastly, Gwin testified that company instructions to him had
always been to shut down equipment if there was any danger. Tr. 48.
Michael Brunson, under questioning by the judge, unequivocally
stated that he had not been informed by Gwin of any brake problem prior
to the issuance of the citation/order on January 23, 1985, and that his
father had not reported any such problem to him. Tr. 60-61, 62, 66.
The administrative law judge found that Gwin's testimony established that Gwin knew of the leak in the brakes and that he had reported
that condition to the company mechanic and to W.D. Brunson. 9 FMSHRC at
258. The judge summarized Gwin 1 s testimony concerning Michael Brunson
as follows:
[Gwin's] testimony concerning when he reported the
brake problem to Respondent Michael Brunson was
contradictory, but he finally stated that he told
Michael Brunson about one week before the order was
issued that the brakes were going bad. Respondent
told him if the brakes were bad to shut down the
machine. Gwin replied that the brakes had a leak
but were holding.
Id. The judge "accepted as factual the testimony of Charles Gwin" that
he had told Michael Brunson about a week before the citation/order was
issued that the brakes on the loader "were going bad, 11 i.e., were not
adequate. 9 FMSHRC at 259. Also, it is undisputed and the judge found

597

that Michael Brunson "took no action to have the brakes repaired until
after the order was issued." 9 FMSHRC at 258. Citing Secretary v.
Kenny Richardson, 3 FMSHRC 8, 16 (January 1981), aff'd, 689 F.2d 632
(6th Cir. 1982), cert. denied, 461 U.S. 928 (1983), the judge concluded
that "[Michael Br~n] knew or had reason to know that the brakes were
not adequate" and "knowingly permitted the violation of 30 C.F.R.
§ 56.9003. 11 9 FMSHRC at 259. The judge assessed a civil penalty of
$300 against Michael Brunson. Id.
We granted Michael Brunson's petition for discretionary review,
which was prepared without assistance of counsel. On review, he
challenges the judge's factual findings. He contends that Gwin did not
inform him of the condition of the loader's brakes until January 23,
1985, after issuance of the citation/order, and that he had left
standing instructions with the company's equipment operators to shut
down immediately any equipment with insufficient brakes. After carefully examining the entire record, we conclude that Gwin's testimony
does not constitute substantial evidence in support of the judge's key
finding that Michael Brunson was informed of a problem with the loader's
brakes prior to issuance of the citation/ order. Even if we were to
affirm this finding, we conclude that Gwin's account of the substance of
these communications is insufficient to establish that Michael Brunson
knowingly authorized a violation of the cited standard within the
meaning of section llO(c) of the Act.
The Commission has held previously that the proper legal inquiry
for purposes of determining corporate agent liability under section
llO(c) of the Act is whether the corporate agent "knew or had reason to
know" of a violative condition. Secretary v. Roy Glenn, 6 FMSHRC 1583,
1586 (July 1984), citing Kenny Richardson, supra, 3 FMSHRC at 16. In
Kenny Richardson, the Commission stated:
If a person in a position to protect safety and
health fails to act on the basis of information that
gives him knowledge or reason to know of the
existence of a violative condition, he has acted
knowingly and in a manner contrary to the remedial
nature of the statute.
3 FMSHRC at 16. The Commission has applied a similar test in situations
in which a violation of a mandatory standard may not exist at the time
of the corporate agent's failure to act but does occur subsequent to
such failure. In that context, the Commission has held that the agent
acts "knowingly" in violation of section llO(c) "when, based upon facts
available to him, he either knew or had reason to know that a violative
condition would occur, but he failed to take appropriate preventive
steps." Roy Glenn, supra, 6 FMSHRC at 1586.
Within the foregoing framework, we must determine whether
substantial evidence supports the administrative law judge's findings.
30 U.S.C. § 823(d)(2)(A)(ii). As we have consistently recognized, the
term "substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." See, ~·
Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1137 (May 1982) guoting

598

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). While we do
not lightly overturn a judge's factual findings and credibility
resolutions (~., Hall v. Clinchfield Coal Co., 8 FMSHRC 1624, 1629-30
(November 1986)), neither are we bound to affirm such determinations if
only slight or dubious evidence is present to support them. See,~.,
Krispy Kreeme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir.
1984); Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th
Cir. 1980). We are guided by the settled principle that in reviewing
the whole record, an appellate tribunal must also consider anything that
"fairly detracts" from the weight of the evidence that may be considered
as supporting a challenged finding. Universal Camera Corp. v. NLRB, 340
U.S. 474, 487 (1951).
Here, the judge's material finding is that Gwin informed Michael
Brunson approximately one week prior to the issuance of the citation/
order on January 23, 1985, that there was a problem with the loader's
brakes. This is the only basis upon which it has been claimed throughout this proceeding that Michael Brunson "knew or had reason to know" of
a violative condition. Our review of the record convinces us that
Gwin's testimony concerning this alleged conversation with Michael
Brunson is too slender a reed. As the judge himself acknowledged
(9 FMSHRC at 259), Gwin's testimony is contradictory. We go further:
the testimony in question is also confusing, unclear, and ambiguous and
it does not constitute substantial evidence.
As noted, on direct examination by the Secretary's counsel, Gwin
initially stated that he had not reported the brake problem to Michael
Brunson, but rather had spoken with "Mr. Brunson." .Tr. 35. If anything
emerges with some clarity from Gwin's account, it is that he used the
name "Mr. Brunson" to refer to W.D. Brunson, Michael Brunson's father.
After the judge intervened to ask Gwin to which Brunson he referred,
Gwin confirmed several times that he meant W.D. Brunson. Tr. 31-36.
Counsel then asked "for a moment," and the hearing went off the record.
The transcript contains no explanation as to why government counsel
interrupted his direct examination or what transpired while the hearing
was off the record. When the hearing resumed, Gwin testified that he
had called "my boss man here, Mike Brunson," after Inspector Bates had
issued the order. Tr. 36. He next replied to counsel that he could not
recall telling an MSHA special investigator, Robert Everett, that he had
reported the brake problem to Michael Brunson about a week prior to
January 23, 1985. Tr. 37.· At this juncture, counsel reiterated the
same leading question as to whether Gwin had spoken with Michael Brunson
prior to January 23 and Gwin replied, "I believe I told him, I do
remember that now," and repeated "Yes, sir. Yes, sir. That was a week,
I think, before then." Tr. 37. However, when the judge next sought to
elicit clarification as to the Brunson with whom Gwin had spoken, Gwin
yet again referred to "Mr. Brunson" -- not "Mr. Mike" or "Michael
Brunson." Tr. 43. The final attempted clarification resulted in Gwin's
answer that he "can't recall" but "believe[d]" that he had talked with
Michael Brunson "along about the same time," or perhaps after, he had
spoken to W.D. Brunson. Tr. 43-44. The exact date or proper
chronological sequence of this conversation in relation to MSHA's
enforcement actions on January 23 was not established.

599

Considered as a whole, we conclude that this testimony does not
supply adequate or reasonable support for the judge's finding that Gwin
informed Michael Brunson of a brake problem before January 23, 1985.
Nor do we find Gwin's testimony to be corroborated by that of Inspector
Bates, who issued the citation/order, or by Special Investigator
Everett, whose investigation led to the institution of the section
llO(c) proceeding against Michael Brunson. In relevant part, Bates
testified that Michael Brunson was apparently Gwin's only boss -- an
inaccurate statement, given the uncontroverted evidence of W.D.
Brunson's role at Pit No. 4. Special Investigator Everett testified
that when he interviewed Gwin, Gwin told him that he had informed both
Brunsons of the brake problem prior to the issuance of the citation/
order. Tr. 51-52. However, Gwin stated on direct examination that he
could not recall this conversation. Tr. 37. Indeed, Everett's special
investigation appears to have been based in large part on his assumption
that because Michael Brunson was the company safety and health official,
he must have known of the brake problem and the continuing operation of
the loader by Gwin at Pit No. 4. Tr. 52, 68.
Under these circumstances, we hold that substantial evidence does
not support the judge's finding that Gwin informed Michael Brunson prior
to January 23 of a brake problem and that there is no basis in the
record for concluding that Michael Brunson "knew or had reason to know"
of a violative condition involving the loader's brakes. This conclusion
is sufficient to dispose of this case. We further hold, however, that
even if the judge's finding that Gwin had spoken to Michael Brunson
about the brakes prior to January 23 were affirmed, the substance of the
communications as testified to by Gwin is insufficient as a matter of
law to show that he knowingly authorized a violation of section 56.9003
within the meaning of section llO(c).
Under the principles of Kenny Richardson and Roy Glenn, supra, in
order to establish Michael Brunson's liability under section llO(c), the
Secretary was obligated to prove that Michael Brunson knew of the
violation or possible future violation of section 56.9003 but failed to
take appropriate corrective or preventive steps. Section 56.9003 states
that mobile equipment shall be provided with "adequate" brakes. Gwin
testified that in his conversations with management about the brakes he
gave assurances that the brakes were holding and that there was no
danger. Tr. 34-35, 37, 40, 43, 44. In fact, Gwin testified that on
January 23, the brakes were holding prior to the inspection but had
"softened" because he was operating the loader in water, and that prior
to the inspection he was unaware of any leak in the line between the
tank and the air compressor. Tr. 44. These communications to
~anagement failed to provide clear notification that the brakes were not
adequate.
More importantly, Gwin testified repeatedly that when he informed
management about the brakes, he was told to "shut the machine down" if
the brakes were bad. Tr. 43-44. On cross-examination, Gwin stated that
company instructions to him had always been, "If there's any danger,
shut it down." Tr. 48. These instructions manifest managerial
directions to Gwin that the loader was not to be used if the brakes were
inadequate. Considered in conjunction with Gwin's ambiguous communi-

600

cations, the instructions that he received do not provide the basis
necessary to support a finding that Michael Brunson knowingly authorized
a violation of 30 C.F.R. § 56.9003.
Accordingly, we reverse the judge's decision, vacate the civil
penalty, and dismiss the Secretary's petition for civil penalty.

~

~I/£,,Cdt::/~~
Richard V. Backley, Commissioner

~e~~&0
L. Clair Nelson, Commissioner

601

Distribution
Michael W. Brunson
Brunson Construction Co., Inc.
35 Station Street
Saraland, Alabama 36571
Vicki Shteir-Dunn, Esq.
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

602

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

May 13, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos. LAKE 86-121-R
LAKE 87-9

YOUGHIOGHENY & OHIO COAL COMPANY
BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Conunissioners
DECISION

BY THE COMMISSION:
In this consolidated contest and civil penalty proceeding arising
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et. seq. (1982)("Mine Act" or "Act"), two issues are presented: (1)
Whether Connnission Administrative Law Judge Gary Melick erred in
concluding that the violation cited in a withdrawal order issued
pursuant to section 104(d)(l) of the Mine Act was not of such nature as
could significantly and substantially contribute to the cause and effect
of a mine safety hazard; and (2) whether the judge erred in modifying
the withdrawal order to a citation issued pursuant to section 104(a) of
the Act solely because the violation was not of a significant and
substantial nature. l/ We affirm the judge's finding that the violation

l/

Section 104(d)(l) states:
If, upon any inspection of a coal or other mine,
an authorized representative of the Secretary finds
that there has been a violation of any mandatory
health or safety standard, and if he also finds
that, while the conditions created by such violation
do not cause imminent danger, such violation is of
such nature as could significantly and substantially
contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds
such violation to be caused by an unwarrantable
failure of such operator to comply with such
mandatory health or safety standards, he shall
include such finding in any citation given to the

603

did not significantly and substantially contribute to the cause and
effect of a mine safety hazard. In addition, we hold that such a
"significant and substantial" finding is not a prerequisite for the
issuance of a section 104(d)(l) order of withdrawal. Accordingly, we
reverse the judge's modification of the withdrawal order and remand this
matter to the judge for further proceedings.
Youghiogheny and Ohio Coal Company ( 11 Y&0 11 ) operates the Nelms No.
2 Mine, an underground coal mine located in Harrison County, Ohio. On
August 1, 1986, Y&O was in the process of restarting mining inby the
last open crosscut in the main north section of the mine. Y&O section
foreman John Slates requested that the haulage road leading to the last
open crosscut be cleaned of coal and other debris. The roof of the
haulage road was fully and properly supported with resin-grouted roof
bolts spaced on four-foot centers. David Parrish, a qualified scoop
operator, offered to clean the road using a scoop.
Parrish's electrically powered, self-propelled scoop was not
equipped with a canopy. After operating the scoop for about 45 minutes,
Parrish needed to dump some refuse and waste material ("gob") left from
previous mining. Parrish could not take the gob to the feeder because a
buggy and another scoop were in the way. Pursuant to instructions from
foreman Slates, Parrish proceeded to dump the gob at a beltline located
inby the last open crosscut. After Parrish dumped the gob, Larry Ward,
a union safety committeeman at the mine, alerted Parrish to the fact
that it was a violation of a mandatory safety standard to operate the
scoop without a canopy in the beltline area where Parrish had dumped the
gob. Ward then discussed the situation with Slates, who agreed to have
the scoop removed from that area.
On August 4, 1986, Department of Labor Mine Safety and Health
Administration ("MSHA") Inspector Ervin Roy Dean was at the mine
conducting an inspection pursuant to section 103(i) of the Act, 30
U.S.C. § 813(i). While on this inspection, Dean received a request from
Ward, pursuant to section 103(g)(l) of the Act, to conduct an immediate
inspection at the mine regarding Parrish's operation of the scoop inby
operator under this [Act]. If, during the same
inspection or any subsequent inspection of such mine
within 90 days after the issuance of such citation,
an authorized representative of the Secretary finds
another violation of any mandatory health or safety
standard and finds such violation to be also caused
by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area
affected by such violation, except those persons
referred to in subsection (c) to be withdrawn from,
and to be prohibited from entering, such area until
an authorized representative of the Secretary
determines that such violation has been abated.
30 U.S.C. § 814(d)(l) (emphasis added).

604

the last open crosscut. ~/ In response to this request, Dean went to
the main north section and examined the area in question. Dean
determined that the area had a mining height of 62 inches and concluded
that operation of the scoop in that area without a canopy violated 30
C.F.R. § 75.1710-l(a)(2), which requires that all self-propelled
electric face equipment operated in the active workings of mines having
mining heights of 60 inches or more be equipped with substantially
constructed canopies or cabs. lf Dean issued to Y&O an order of
withdrawal that required Y&O to refrain from using the scoop in the area
until the scoop was provided with a substantially constructed canopy.
Dean issued the order pursuant to section 104(d)(l) of the Act because
he found that Slates authorized Parrish to operate the scoop in the area
at issue even though Slates knew the scoop did not have a canopy and
knew that a canopy was required. Dean found that Slates' actions
constituted an unwarrantable failure to comply with the standard. (The
parties stipulated at the hearing that a preceding valid citation issued
pursuant to section 104(d)(l) was in existence when Dean issued the
section 104(d)(l) order. Tr. 6.) Dean also found that the violation
significantly and substantially contributed to the cause and effect of a
mine safety hazard.
Y&O contested the validity of the section 104(d)(l) order as well
as the Secretary's proposed civil penalty for the violation of section
75.1710-l(a)(2). In its notice of contest of the order of withdrawal,
2/
Section 103(g)(l) of the Act provides in part that a miners'
;epresentative may obtain an "immediate inspection" of a mine by MSHA
whenever the representative "has reasonable grounds to believe that a
violation of this [Act] or a mandatory health or safety standard
exists •.•• " 30 U.S.C. § 813(g)(l).

lf

In relevant part, 30 C.F.R. § 75.1710-l(a)(2) provides:
(a)
Except as provided in paragraph (f) of this
section, all self-propelled electric face equipment,
including shuttle cars, which is employed in the
active workings of each underground coal mine on and
after January 1, 1973, shall, in accordance with the
schedule of time specified in paragraphs (a)(l),
(2), (3), (4), (5), and (6) of this section, be
equipped with substantially constructed canopies or
cabs, located and installed in such a manner that
when the operator is at the operating controls of
such equipment, he shall be protected from falls of
roof, face, or rib, or from rib and face rolls. The
requirements of this paragraph (a) shall be met as
follows:

*

*

*

*

(2) On and after July 1, 1974~ in coal mines having
mining heights of 60 inches or more, but less than
72 inches.

605

Y&O conceded that it had violated section 75.1710-l(a)(2) but argued
that 11 [t]he·facts surrounding the issuance of [the] order do not meet
the requirements for unwarrantable failure. 11 At the hearing, Y&O also
asserted that during a section 103(g)(l) inspection it is improper for
an inspector to cite a violation that has occurred in the past.
In his decision the judge found it unnecessary to address Y&O's
section 103(g)(l) argument due to his conclusion that the order of
withdrawal was otherwise deficient. 9 FMSHRC at 1066. The judge found
that because the Secretary did not prove that the violation significantly and substantially contributed to the cause of a mine safety
hazard, the order must fail under section 104(d)(l). Accordingly, the
judge modified the order to a section 104(a) citation. 30 U.S.C. §
814(a). The judge made no finding as to whether the violation was the
result of Y&O's unwarrantable failure to comply with the cited standard,
but found that the violation was the result of "gross operator
negligence" and assessed a civil penalty of $400. 9 FMSHRC at 1067. ~/
We granted the Secretary's petition for discretionary review of
the judge's decision. The Secretary asserts that, contrary to the
judge's decision, the evidence of record establishes that the violation
was of a significant and substantial nature. In addition, the Secretary
argues that the judge erred by modifying the section 104(d)(l)
withdrawal order to a section 104(a) citation,on the basis of his
conclusion that the violation did not significantly and substantially
contribute to the cause and effect of a mine safety hazard. 2/
The first issue is whether the judge erred in concluding that the
violation was not of a significant and substantial nature. The judge
found that the Secretary had not "met the requisite burden of proof for
establishing the [violation] was
significant and substantial." 9
FMSHRC at 1067. Because we find the judge's finding to be supported by
substantial evidence, we affirm.
A violation is properly designated as being of a significant and
substantial nature "if, based on the particular facts surrounding that
~/

ri:'he Mine Act authorizes the Conunission to make an independent
penalty assessment based upon the criteria set forth in section llO(i)
of the Act. 30 U.S.C. § 820(i). See, e.g., Black Diamond Coal Mining
Co., 7 FMSHRC 1117, 1121 (August 1985). One of the statutory criteria
upon which the assessment of a civil penalty is based is "whether the
operator was negligent." 30 U.S.C. § 820(i). The Conunission has
recognized thac the penalty criterion of negligence and an inspector's
finding of unwarrantable failure made pursuant to section 104(d) of the
Act are not identical, although frequently they are based upon the same
or similar factual circumstances. Quinland Coals, Inc., 9 FMSHRC 1614,
1622. (September 1987).

21

Before the judge, however, the Secretary asserted that a
significant and substantial finding was a prerequisite for the issuance
of a section 104(d)(l) order, and the inspector testified to the same
effect. S. Post-Hearing Br. 8; Tr. 18.

606

violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably
serious nature." Cement Division, National Gypsum, 3 FMSHRC at 822, 825
(April 1981); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 677 (April
1987); see also Consolidation Coal Co. v. FMSHRC, 824 F.2d 1071, 1078-79
(D.C. Cir. 1987). In Mathies Coal Co., 6 FMSHRC at 1, 3-4 (January
1984) the Commission explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary
must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard -- that is, a measure of danger to safety
contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably
serious nature.
The third element of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard contributed to will
result in an event in which there is an injury."
U.S. Steel Mining
Co.,Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that,
in accordance with the language of section 104(d)(l), it is the
contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. 6 FMSHRC at 1836. Further, the
violation itself "must be evaluated in terms of continued normal mining
operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July
1984).
In the present case, there is no dispute as to the fact of
violation or that the discrete safety hazard contributed to by the
violation was the danger posed to the scoop operator by the lack of a
canopy in the event of a roof fall. Additionally, there is no dispute
that any injury resulting from the roof fall would likely be serious.
The chief issue, therefore, is whether there was a reasonable likelihood
of a roof fall.
As noted above, the significant and substantial nature of a
violation must be determined "based on the particular facts surrounding
the violation." National Gypsum, supra, 3 FMSHRC at 825. The
particular facts surrounding the violation at issue support a finding
that a roof fall was not reasonably likely to occur. It is undisputed
that while operating the scoop in the area of the violation, Parrish was
under roof supported with resin-grouted rods on centers of four-feet or
less at all times.
Although the inspector stated that the roof was
"shaly" and had been given a chance to "work" while the area was being
rehabilitated, the Secretary does not argue nor imply that the roof
support in the area was out of compliance with the mine's MSHA-approved
roof control plan or was not adequately supported as required by 30
C.F.R. § 75.200. Because the particular facts surrounding this
violation indicate that the roof was properly and adequately supported,
the judge correctly accorded little weight to the general rationale of

607

the inspector that "most roof falls occur" within 25 feet of the face -a zone in which the scoop was operated. 9 FMSHRC at 1067.
In sum, given the undisputed fact that the scoop was operated at
all times under supported roof, and the lack of evidence to establish a
reasonable likelihood of a roof fall in the area involved, we conclude
that substantial evidence supports the judge's finding that this
violation was not of a significant and substantial nature. Compare
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-13 (December 1987).
We now turn to the issue of whether the judge erred by modifying
the section 104(d)(l) withdrawal order to a section 104(a) citation. We
agree with the Secretary's argument on review that the basis of the
judge's modification was erroneous. The statutory language of section
104(d)( 1) expressly makes a significant and substantial finding a
prerequisite for the issuance of a section 104(d)(l) citation. There
is, however, no statutory requirement that the inspector base a section
104(d)(l) order upon a finding that the violation significantly and
substantially contributes to the cause and effect of a mine safety or
health hazard. Rather, the plain language of section 104(d)(l)
establishes three prerequisites for the issuance of a section 104(d)(l)
withdrawal order: (1) an underlying section 104(d)(l) citation; (2) a
violation of a mandatory health or safety standard found within 90 days
after the issuance of the section 104(d)(l) citation; and (3) a finding
by the inspector that the violation was "caused by an unwarrantable
failure of [the) operator to .•• comply." See n.1 supra.
This construction is confirmed by judicial precedent and
legislative history. Section 104(d)(l) of the Mine Act was carried over
without substantive change from section 104(c)(l) of the Federal Coal
Mine Health and Safety Act of 1969. 30 U.S.C. § 814(c)(l) (1976)
(amended 1977). In UMWA v. Kleppe, 532 F.2d 1403 (D.C. Cir. 1976),
cert. denied sub nom. Bituminous Coal Operators' Assn., Inc. v. Kleppe,
429 U.S. 858 (1976), the United States Court of Appeals for the District
of Columbia Circuit addressed the issue of whether a significant and
substantial finding was a "prerequisite to be met before a withdrawal
order may issue pursuant to section [104(c)(l)J" of the Coal Act. 532
F.2d at 1405. £/ After reviewing the language of section 104(c)(l) and
the legislative history of the section, the court concluded: "The
statute and the legislative history are clear. There is no [significant
and substantial finding) required to be met before a section [104(c)(l)]
withdrawal order may properly issue. 11 532 F.2d at 1407. The Mine Act's
legislative history indicates no Congressional intent to change this
interpretation when enacting section 104(d)(l). S. Rep. No. 181, 95th
Cong., 1st Sess. 30-31 (1977), reprinted in Senate Subcommittee on

£/

The court in Kleppe referred to the significant and substantial
finding requirement of section 104(c)(l) as the section's "gravity
criterion." It is clear that the phrase "gravity criterion" is the
court's shorthand for the statutory language of section 104(c)(l) that
the violation be "of such nature as could significantly and
substantially contribute to the cause and effect of a mine safety or
health hazard." 532 F.2d at 1405.

608

Labor, Committee on Human Resources, 95th Cong., 2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 618-19
(1978).
This Commission has, on numerous occasions, addressed the
statutory prerequisites for the issuance of sanctions pursuant to
section 104(d) and has never held nor implied that a significant and
substantial finding is required to sustain a section 104(d)(l) order.
See United States Steel Corp., 6 FMSHRC 1908, 1915 n.3 (August 1984);
see also Nacco Mining Co., 9 FMSHRC 1541, 1545 (September 1987), pet.
for review filed, No. 88-1053 (D.C. Cir. January 27, 1988).
Accordingly, we hold that a "significant and substantial" finding is not
a prerequisite for the issuance of a section 104(d)(l) order.
Since the judge ruled in error that a significant and substantial
finding was necessary to sustain a section 104(d)(l) order, he did not
reach Y&O's contention that the violation of section 75.1710-l(a)(2) was
not the result of its unwarrantable failure to comply with that
mandatory safety standard. We remand this matter in order that the
judge may rule on this issue and re-examine the penalty in light of that
ruling. Compare Youghiogheny & Ohio Coal Co., supra, 9 FMSHP..C at
2003. Jj

If

On remand it is unnecessary for the judge to consider Y&O's
assertion that the violation was invalidly cited because the violative
condition was no longer in existence when cited by the inspector during
an inspection conducted pursuant to section 103(g)(l) of the Act. 30
U.S.C. § 813(g)(l). Following issuance of the judge's decision, the
Commission held (Chairman Ford, dissenting) that a section 104(d)
sanction may be based upon a prior violation cited during a section
103(g)(l) inspection. Nacco Mining Co., supra. See also Emerald Mines
Corp., 9 FMSHRC 1590 (September 1987), pet. for review filed, No. 871816 (D.C. Cir. December 23, 1987).

609

Accordingly, we affirm the judge 1 s finding that the violation was
not of a significant and substantial nature. In addition, we vacate the
judge's modification of the section 104(d)(l) order to a section 104(a)
citation and remand this matter to the judge to determine whether the
violation was caused by Y&O's unwarrantable failure to comply with the
cited standard and to re-examine the penalty .

. ~-c~.,C,-e?/~t-Lt-<....
Richard V. Backley, Commissioner

J.----

~~e{mm~
L. Clair Nelson, Commissioner

610

Distribution
Robert C. Kota, Esq.
Youghiogheny & Ohio Coal Co.
P.O. Box 1000
St. Clairsville, Ohio 43950
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Connnission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

611

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

May 13, 1988
LOCAL UNION 2333, DISTRICT 29,
UNITED MINE WORKERS OF
AMERICA (UMWA)
Docket No. WEVA 86-439-C

v.
RANGER FUEL CORPORATION

Before: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners
DECISION
BY THE COMMISSION:
This compensation proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982) ("Mine Act" or
"Act"). The United Mine Workers of America ("UMWA") seeks compensation
from Ranger Fuel Corporation ("Ranger") pursuant to the third sentence
of section 111 of the Mine Act for an idling of miners following the
issuance of an imminent danger withdrawal order. l/ In denying the

!/

In relevant part, section 111 provides:
Entitlement of miners to full compensation
[1] If a coal or other mine or area of such mine
is closed by an order issued under section [103]
••• , section [104] ••• , or section [107] of this
[Act], all miners working during the shift when such
order was issued who are idled by such order shall
be entitled, regardless of the result of any review
of such order, to full compensation by the operator
at their regular rates of pay for the period they
are idled, but for not more than the balance of such
shift. [2] If such order is not terminated prior to
the next working shift, all miners on that shift who
are idled by such order shall be entitled to full
compensation by the operator at their regular rates
of pay for the period they are idled, but for not
more than four hours of such shift. [3] If a coal
or other mine or area of such mine is closed by an

612

parties' cross-motions for sununary decision, Commission Administrative
Law Judge Gary Melick held that Ranger's payment of a civil penalty
proposed for a citation issued after the imminent danger withdrawal
order was issued did not preclude Ranger from contesting in the
compensation proceeding the violation itself or the causal relationship
noted in the citation between the violation alleged therein and the
withdrawal order. We granted the UMWA's petition for interlocutory
review and stayed proceedings before the judge. For the reasons that
follow, we conclude that Ranger's payment of the civil penalty
extinguished its right to challenge the violation alleged in the
citation, but we hold that Ranger may litigate in the compensation
proceeding the issue of the causal relationship between the violation
and the withdrawal order. Accordingly, we reverse in part, affirm in
part, and remand for further proceedings.
Miners employed by Ranger at its Beckley No. 2 underground coal
mine in West Virginia are represented by Local Union 2333, District 29,
UMWA. ~/ At 11:30 a.m., on May 29, 1986, MSHA Inspector William Uhl
issued to Ranger an imminent danger withdrawal order pursuant to section
107(a) of the Mine Act, 30 U.S.C. § 817(a), on the basis of his finding
that an explosive mixture of methane gas in excess of 57. was present in
order issued under section [104) ... or section
[107) of this [Act] for a failure of the operator to
comply with any mandatory health or safety
standards, all miners who are idled due to such
order shall be fully compensated after all
interested parties are given an opportunity for a
public hearing, which shall be expedited in such
cases, and after such order is final, by the
operator for lost time at their regular rates of pay
for such time as the miners are idled by such
closing, or for one week, whichever is the lesser.
[4] Whenever an operator violates or fails or
refuses to comply with any order issued under
section [103) ... , section [104) .•. , or section
[107) of this [Act], all miners employed at the
affected mine who would have been withdrawn from, or
prevented from entering, such mine or area thereof
as a result of such order shall be entitled to full
compensation by the operator at their regular rates
of pay, in addition to pay received for work
performed after such order was issued, for the
period beginning when such order was issued and
ending when such order is complied with, vacated, or
terminated. . ..
30 U.S.C. § 821 (sentence numbers added).
~/
Because there has been no evidentiary hearing as yet in this
matter, the factual background set forth in the text is based on the
parties' pleadings and briefs and on the relevant order and citation
issued by the Department of Labor's Mine Safety and Health
Administration ("MSHA").

613

the mine's 7 East Section located in the longwall area of the mine.
(Methane becomes explosive at a 5% concentration. See,~·· Monterey
Coal Co., 7 FMSHRC 996, 1000-01 (July 1985).) Following issuance of the
withdrawal order, Ranger withdrew all miners then underground. The mine
was idled from 11:30 a.m., May 29, to 7:00 p.m., May 31, 1986, when the
order was modified to permit the resumption of production in certain
areas of the mine other than the 7 East Section.
On June 3, 1986, Inspector Uhl issued a citation to Ranger
pursuant to section l04(a) of the Mine Act, 30 U.S.C. § 814(a). The
citation asserted that it was "based on laboratory analysis of an air
sample collected on May 29, 1986" and charged Ranger with a violation of
30 C.F.R. § 75.329 in that "[t)he bleeder system [had) failed to
function adequately to carry away an explosive mixture of methane in the
tail entries of the 7 East Longwall Section." 3/ The citation also
stated: "The citation was a factor that contributed to the issuance of
the inuninent danger order .... 11 The next day, June 4, 1986, the section
107(a) withdrawal order and the section 104(a) citation were terminated
following a determination by the inspector that the methane level in the
mine was below the maximum permissible level as a result of Ranger's
installation of ventilation controls.
Ranger did not contest the section 107(a) withdrawal order or the
citation alleging the violation of section 75.329. Rather, after
receiving MSHA's notice of a proposed civil penalty assessment of $213
for the alleged violation, Ranger paid the penalty on August 29, 1986,
without requesting a hearing. Ranger's payment of the penalty for the
violation occurred 14 days after the UMWA had filed a section 111
complaint for compensation with the Commission and 10 days after Ranger

lf

Section 75.329, which restates section 303(z)(2) of the Mine Act,
30 U.S.C. § 863(z)(2), provides in pertinent part:
On or before December 30, 1970, all areas from
which pillars have been wholly or partially
extracted and abandoned areas ... shall be ventilated by bleeder entries or by bleeder systems or
equivalent means, or be sealed .... When ventilation of such areas is required, such ventilation
shall be maintained so as continuously to dilute,
render harmless, and carry away methane and other
explosive gases within such areas and to protect the
active workings of the mine from the hazards of such
methane and other explosive gases. Air coursed
through underground areas from which pillars have
been wholly or partially extracted which enters
another split of air shall not contain more than 2.0
volume per centum of methane, when tested at the
point it enters such other split. When sealing is
required, such seals shall be made in an approved
manner so as to isolate with explosion-proof
bulkheads such areas from the active workings of the
mine.

614

had been served with the complaint for compensation at its Beckley No. 2
Mine.
The miners working the 8 a.m. to 4 p.m. shift at the time the mine
was idled on May 29 were compensated by Ranger for the remainder of that
shift. Those scheduled to work the following shift from 4 p.m. to
midnight on May 29 were also compensated for that shift. The complaint
filed by the UMWA on August 15, 1986, sought "one-week compensation"
under the provisions of the third sentence of section 111 on behalf of
those miners who had been previously scheduled to work on May 30 and 31,
but were idled by the withdrawal order. (Under the third sentence of
section 111, miners idled as a result of a section 104 or 107 withdrawal
order issued "for a failure of the operator to comply with any mandatory
health or safety standards" are entitled to compensation "for such time"
as they are idled "or for one week, whichever is the lesser." See n.1
supra.)
Prior to a hearing on the compensation complaint, both parties
filed motions for summary decision. In its motion for summary decision,
the UMWA asserted that: (1) Ranger's payment of the civil penalty
proposed in connection with the section 104(a) citation established that
the charged violation of section 75.329 had occurred for purposes of any
subsequent proceeding under the Mine Act; and (2) the inspector's
notation on the citation that there was a causal relationship between
the violation and the imminent danger should be regarded, by reason of
Ranger's payment of the penalty, as establishing for compensation
purposes the requisite nexus between the imminent danger order and an
underlying violation of a mandatory standard. Thus, the UMWA argued
that all the elements necessary to sustain a compensation claim under
the third sentence of section 111 were established and the idled miners
were entitled to compensation as a matter of law.
In opposition to the UMWA's motion for summary decision, Ranger
asserted that there were numerous factual allegations in dispute, such
as the identity of the individual miners who might be entitled to
compensation. Arguing for summary decision in its favor, Ranger
contended that the section 107(a) withdrawal order did not allege on its
face a failure by the operator to comply with a mandatory health or
safety standard as required by the third sentence of section 111.
Ranger further argued that the citation alleging a violation of section
75.329 was invalid because the standard applies only to bleeders
ventilating old abandoned areas developed before December 30, 1970, and
not to areas developed after that date, which it asserted was the case
here. Ranger also argued that it should not be precluded in a
compensation proceeding from contesting the validity of the citation or
the violation alleged therein, even though it had paid the civil penalty
proposed for the violation.
In denying both motions for summary decision, the judge found that
the citation upon which the UMWA sought to establish a "causal nexus"
with the imminent danger order was not contested by Ranger and that the
proposed penalty had, in fact, been paid. Order Denying Motions for
Summary Decision at 2 (May 14, 1987) ("Order"). However, the judge held
that Ranger's payment of the civil penalty did not preclude Ranger "from

615

challenging either the validity of the citation (or the causal relation
between the violation cited therein and the closure order at issue)" in
this compensation proceeding. Id. He stated:
Section 111 of the Act expressly provides that the
form of compensation sought herein can be awarded
only "after all interested parties are given an
opportunity for a public hearing." That right to a
public hearing would indeed be hollow if the mine
operator could not litigate the critical issue of
whether the order that idled the miners was issued
"for a failure of the operator to comply with any
mandatory health or safety standard."
Id. The judge further determined that collateral estoppel did not
preclude Ranger from contesting the validity of the citation because
there had been no actual litigation with respect to the existence of the
alleged violation. Id. Finally, the judge held that Ranger's argument
that the withdrawal order must allege a violation of a mandatory
standard on its face was contrary to the Commission's holding in Loe. U.
1889, UMWA v. Westmoreland Coal Co., 8 FMSHRC 1317 (September 1986),
which stated that for purposes of entitlement to compensation it is not
necessary for an idling order itself to allege a violation of a
standard. Order at 2-3.
We granted the UMWA's petition for interlocutory review and stayed
proceedings before the judge. We also permitted the Secretary of Labor
to file an amicus curiae brief. On review, Ranger and the UMWA
essentially rely on the same arguments that they asserted before the
judge. In brief, the UMWA argues that under the Commission's decisions
in Old Ben Coal Co., 7 FMSHRC 205 (February 1985), and Westmoreland,
supra, Ranger's payment of the civil penalty prevents it from
challenging in this proceeding either the violation of section 75.329 as
alleged in the section 104(a) citation or the inspector's notation in
that citation of a causal relationship, i.e., a "nexus," between the
violation and the imminent danger withdrawal order. PIR 3-4. Ranger
counters that it should be permitted to demonstrate in this compensation
proceeding "that no violation in fact occurred" (R. Br. 22) and to
litigate the question of nexus in addition to other issues regarding
entitlement of individual miners to specific sums of compensation. R.
Br. 6-7. The Secretary as amicus curiae submits that Ranger's payment
of the civil penalty must be "deemed a final order of the Commission" by
operation of section 105(a) of the Mine Act. S. Br. 6-8. ~/ The
~/

Section 105(a) provides in relevant part:
Notification of civil penalty; contest
If, after an inspection or investigation, the
Secretary issues a citation or order under section
[104) of this [Act], he shall, within a reasonable
time after the termination of such inspection or
investigation, notify the operator by certified mail

616

Secretary further asserts that permitting Ranger to contest the citation
in this proceeding would place miners and their representatives in the
"disadvantaged litigation posture" of having to establish de ~ the
validity of a secretarial enforcement action. S. Br. 6, 12.
We first address the question of whether Ranger's payment of the
civil penalty proposed for the violation of section 75.329 precludes it
from contesting that violation in this compensation proceeding. Ranger
contends that such a challenge would be limited in nature -- confined
strictly to the purpose of defending itself against the sP.ction 111
compensation claim. If Ranger could establish that no violation
occurred, then the UMWA would be unable to demonstrate the required
nexus between a violation and issuance of the idling withdrawal order.
We conclude, however, that Ranger's position cannot be reconciled with
the statutory framework of sections 105 and 111 of the Mine Act and with
decisions interpreting those provisions.
Section 105 of the Mine Act provides operators with two
opportunities to contest and request a hearing concerning issuance of a
section 104 citation. It is well-established that section 105(d) grants
an operator the right to seek immediate review of an abated citation
before the Secretary has proposed a civil penalty. Energy Fuels Corp.,
1 FMSHRC 299, 300-09 (May 1979); Old Ben Coal Co., 7 FMSHRC 205, 207-08
(February 1985); Quinland Coals, Inc., 9 FMSHRC 1614, 1620-21 (September
1987). ~/ After a civil penalty assessment is proposed, an operator has
of the civil penalty proposed to be assessed under
section [llO(a)] of this [Act] for the violation
cited and that the operator has 30 days within which
to notify the Secretary that he wishes to contest
the citation or proposed assessment of penalty.
If, within 30 days from the receipt of the notification issued by the Secretary, the operator fails
to notify the Secretary that he intends to contest
the citation or the proposed assessment of penalty,
and no notice is filed by any miner or representative of miners under subsection (d) of this
section within such time, the citation and the
proposed assessment of penalty shall be deemed a
final order of the Commission and not subject to
review by any court or agency.
30 U.S.C. § 815(a) (emphasis added).
~/

Section 105(d) provides in relevant part:
Contest proceedings; hearing; findings of fact;
affirmance, modification, or vacation of citation,
order, or proposed penalty; procedure before
Commission
If, within 30 days of receipt thereof, an operator
of a coal or other mine notifies the Secretary that
he intends to contest the issuance or modification

617

another opportunity under section lOS(a) to file a notice of contest of
the proposed penalty. Id. Moreover, an immediate contest of a citation
under section lOS(d) is not a procedural prerequisite to initiating a
contest under section lOS(a) of the penalty assessment proposed for that
citation, and in such a penalty contest the operator may challenge the
penalty as well as the fact of violation. 30 U.S.C. § 815(a); Quinland
Coals, supra, 9 FMSHRC at 1621-22.
If, however, an operator fails to contest a civil penalty proposed
for a citation, section lOS(a) expressly provides that both "the
citation and the proposed assessment of penalty shall be deemed a final
order of the Commission and not subject to review by any court or
agency." 30 U.S.C. § 815(a); see also Senate Rep. No. 181, 95th Cong.,
1st Sess. 34 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, Legislative History of the Federal Mine
Safety and Health Act of 1977, at 622 (1978). Further, an operator's
payment of a proposed civil penalty constitutes an admission of the
underlying violation and precludes the operator from continuing a
pending section 105(d) contest of the violation. Old Ben, supra,
7 FMSHRC at 209. "For purposes of the Act, paid penalties that have
become final orders [pursuant to section 105(a)] reflect violations of
the Act and the assertion of violation contained in the citation is
regarded as true." Id. See also Amax Lead Co. of Missouri, 4 FMSHRC
975, 978-79 (June 1982) (payment of a penalty in settlement operates as
a concession that "for purposes of any proceedings under the Mine Act,
the violations [are] to be treated as i f established.") Thus, the Act's
enforcement provisions have consistently been interpreted to mean that
once a civil penalty is paid or becomes a final order by operation of
section 105(a), the assertion of violation contained in the citation
cannot be contested in a subsequent proceeding under the Mine Act. In
fact, the Old Ben-Amax Lead rationale has been expressly applied in the
context of a compensation proceeding to foreclose challenges of
violations for which penalties were paid. Westmoreland, supra, 8 FMSHRC
of an order issued under section [104] of this
[Act], or citation or a notification of proposed
assessment of a penalty issued under subsection (a)
or (b) of this section, or the reasonableness of the
length of abatement time fixed in a citation or
modification thereof issued under section [104] of
this [Act], ••. the Secretary shall immediately
advise the Commission of such notification, and the
Commission shall afford an opportunity for a hearing
(in accordance with section 554 of title 5, but
without regard to subsection (a)(3) of such
section), and thereafter shall issue an order, based
on findings of fact, affirming, modifying, or
vacating the Secretary's citation, order, or
proposed penalty, or directing other appropriate
relief. Such order shall become final 30 days after
its issuance.
30 u.s.c. § 815(d).

618

at 1330; Loe. U. 2274, UMWA v. Clinchfield Coal Co., 8 FMSHRC at 1310,
1314 (September 1986).
Here, Ranger did not avail itself of either of the two
opportunities granted by the Mine Act to contest the allegation of
violation made in the citation. Instead, it paid the civil penalty
proposed for the violation. Under these circumstances, both the
validity of the citation and the amount of the civil penalty are final
under section 105(a) of the Act and not subject to review. Thus, Ranger
is precluded in this proceeding from challenging the violation. ~/
In addition, we agree with the Secretary that allowing an operator
to challenge in a compensation proceeding the fact of violation despite
having paid the relevant civil penalty would improperly place miners and
their representatives in a prosecutorial role. The Secretary, as
enforcer and prosecutor of the Mine Act, is a party to a section 105
enforcement proceeding but not to a section 111 compensation proceeding.
30 U.S.C. §§ 815 & 821. See Int'l U., UMWA v. FMSHRC, 840 F.2d 77, 8182 (D.C. Cir. 1988). If an operator were permitted to make the kind of
challenge advocated by Ranger, miners and their representatives would be
required to perform functions properly resting within the Secretary's
domain in order to prove the underlying violation or the validity of the
citation or order in which the allegation of violation was contained.
Given the unified scheme of the Mine Act, we find unconvincing Ranger's
assertion that it would not be inconsistent to allow it to challenge the
fact of violation in a compensation proceeding even though it chose not
to contest the allegation of violation in an enforcement proceeding.
Accordingly, we reverse the judge's determination that Ranger should be

£/

Ranger cites Secretary v. Kenny Richardson, 3 FMSHRC 8 (January
1981), aff'd, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928
(1983), in support of its contention that a final order pursuant to
section 105(a) does not have preclusive effect in a subsequent
proceeding under the Mine Act. Ranger's reliance on Kenny Richardson is
misplaced. In that proceeding, the corporate agent, Richardson, had
been cited pursuant to section 109(c) of the Federal Coal Mine Health
and Safety Act of 1969, 30 U.S.C. § 801 et seg. (1976)(amended 1977),
the identical predecessor provision to section llO(c) of the Mine Act,
30 U.S.C. § 820(c). The corporate operator also had been cited. In the
separate proceeding against the operator, the operator had paid the
proposed penalties without contesting the charges against it. At issue
in the Richardson case was the Secretary's power to pursue the corporate
agent even though the corporate operator had paid the penalty and was
not a party in the· subsequent proceeding against the agent. The
Conunission held that despite the operator's payment of the penalty, the
Secretary was not precluded from proving the operator's violation of the
standard as an element of proof in the case against the agent and the
agent was not barred from contesting the allegation that a violation had
occurred. 3 FMSHRC at 10. Thus, Kenny Richardson concerned the effect
of a final Commission order on the enforcement of the Act against a
separate respondent, whereas the present proceeding concerns the effect
of a final order on the same party that had paid the penalty, i.e., the
operator.

619

permitted in this proceeding to challenge the validity of the citation
or the underlying violation.
We turn to consideration of whether Ranger's payment of the
penalty also operated as an admission of a causal nexus between the
violation and the imminent danger withdrawal order for purposes of
determining entitlement to compensation under section 111. In Eastern
Associated Coal Corp., 3 FMSHRC 1175, 1178 (May 1981), the Commission
discussed the concept of "nexus" in the compensation context in
describing the causal relationships between the operation of withdrawal
orders and idling of miners necessary to sustain various compensation
awards. One-week compensation under the third sentence of section 111
is keyed to idlements resulting from section 104 or 107 withdrawal
orders issued "for a failure of the operator to comply with any
mandatory health or safety standards .... " In Westmoreland, the
Commission held that allegations of violation of mandatory standards
contained in section 104(a) citations or section 104(d) citations or
orders could provide the causal nexus with a previously issued section
107(a) imminent danger withdrawal order. 8 FMSHRC at 1329-30. Thus,
under applicable precedent the section 104(a) citation in the present
proceeding may be examined to determine whether a nexus existed between
the violative condition and the section 107(a) withdrawal order.
There is a crucial distinction, however, between the issue of the
fact of violation for enforcement purposes and the separate issue of
causal nexus for compensation purposes. In Westmoreland, following
application of the Old Ben principle that the operator's payment of
penalties established the underlying violations, the Commission
nevertheless remanded the matter for a determination of whether nexus
existed:
Left unresolved, however, is the specific question
of whether any of these charges of violation of
mandatory standards in fact provide the necessary
relationships to the section 107(a) order so as to
initiate compensation under the third sentence of
section 111.
Because the relationship or nexus between the
violations of mandatory standards and the imminent
danger order is the critical issue on which
statutory entitlement to one-week compensation
hinges, we remand ... for further proceedings ....
If such a relationship is determined, the judge
shall take appropriate action to identify the
affected miners and the amount of compensation due
to each.
8 FMSHRC at 1330. ZI

Thus, the issue of causal nexus in a compensation

7/
Clinchfield, supra, also involved one uncontested section
l04(d)(l) citation and three section 104(d)(l) orders for which
penalties had been paid. The Commission concluded that the citation and

620

proceeding is independent of the allegation of violation and must be
addressed separately in order to determine entitlement to one-week
compensation under the third sentence of section 111.
The UMWA acknowledges that the issue of causal nexus is compensation-related but relies on Old Ben to argue that Ranger should have
known "full well that findings in an uncontested citation are regarded
as true for purposes of all subsequent proceedings under the Act .... "
PIR 4 (emphasis added). We do not agree. Old Ben states only that
"[p]aid penalties that have become final orders reflect violations of
the Act and the assertion of violation contained in the citation is
regarded as true." 7 FMSHRC at 209 (emphasis added). Old Ben in no way
involved the issue of whether causal nexus is admitted for purposes of
section 111 when an operator pays the civil penalty associated with a
citation containing a specific notation regarding nexus.
As we have emphasized, section 105 provides two opportunities for
review by which an operator may contest citations and orders issued
pursuant to section 104 and proposed penalty assessments for those
orders and citations. Such contest proceedings include consideration by
the administrative law judge of the statutory elements necessary to
prove the alleged violation and to assess a penalty. A finding of
"causal nexus" is not one such element. There is no statutory basis for
the compensation-related issue of causal nexus to be addressed in a
section 105 enforcement hearing. Had Ranger timely contested the
citation, the judge in a section 105 proceeding would properly have
reserved the nexus issue for consideration in the compensation
proceeding. Whatever importance the inspector's notation of nexus on a
citation may serve in the Secretary's enforcement of the Act, the
subject of nexus between a withdrawal order and an underlying violation
becomes relevant only in a section 111 compensation proceeding.
We therefore affirm the judge's conclusion that Ranger may contest
the issue of the causal nexus between the violation and the section
107(a) withdrawal order in the compensation proceeding. Finally, we
conclude in agreement with Ranger that issues remain to be tried in this
proceeding regarding the entitlement of individual miners to specific
sums of compensation. See Loe. U. 1889, etc., UMWA v. Westmoreland Coal
Co., 9 FMSHRC 1195, 1196 (July 1987).

orders could supply the required causal nexus and remanded the matter
for a determination of whether the nexus existed. 8 FMSHRC at 1314.
Likewise, in Greenwich, supra, the matter was remanded to afford the
parties the opportunity to litigate the question of nexus once the
merits of the alleged violations were resolved. 8 FMSHRC at 1307.

621

Accordingly, the judge's decision is reversed insofar as it held
that Ranger may contest in this compensation proceeding the fact of
violation or the validity of the citation for which it has paid the
civil penalty. We affirm the judge's decision insofar as it permitted
Ranger to litigate the issue of the causal nexus between the fact of
violation and the section 107(a) withdrawal order. We dissolve the stay
and remand this matter for further proceedings consistent with this
decision.

J

Doyle, Commissio

'Ys /;Last~wk~mmis:ioner

CT:'l-e-~v / Le__Ltf_-0---rL/
L. Clair Nelson, Commissioner

622

Distribution
John T. Scott, Esq.
Timothy M. Biddle, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Joyce Hanula, Legal Asst.

mruA
900 15th St., N.W.
Washington, D.C. 20005
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Gary Melick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

623

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

May 26, 1988

RIVCO DREDGING CORPORATION

v.

Docket Nos. KENT 88-23-R
KENT 88-24-R
KENT 88-25-R
KENT 88-26-R
KENT 88-27-R

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

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners
ORDER

BY THE COMMISSION:
In this contest proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982), the Secretary of
Labor filed a motion to dismiss the contest proceeding based upon the
failure of Rivco Dredging Corporation ("Rivco") to notify the Secretary
that it intended to contest the civil penalties subsequently proposed
for the contested citations and orders. On April 20, 1988 Commission
Administrative Law Judge Roy J. Maurer issued an order of dismissal.
Rivco filed a response in opposition to the Secretary's motion, claiming
that it believed that its previous contest of the citations and orders
was sufficient to place the penalties in issue. However, the response
was not received until after the judge entered his dismissal order.
Rivco filed a Petition for Discretionary Review alleging, in
essence, that it had failed to notify the Secretary of its intent to
contest the penalties because it had already filed a timely Notice of
Contest relating to these alleged violations, and was unaware that a
contest of the civil penalty proposals was also required. On May 25,
1988, the Secretary filed a response to Rivco's Petition for Discretionary Review.
It appears that this operator, acting pro se, acted in good faith
but misunderstood the need to object separately to the two different
aspects of the same dispute. See 30 U.S.C. § 815(a) (contest of
proposed civil penalties). Cf. Old Ben Coal Co., 7 FMSHRC 205 (February
1985). This Commission has recognized that, in cases like this,
innocent procedural missteps alone should not operate to deny a party
the opportunity to present its objections to citations or orders. See,
~. M.M. Sundt Constr. Co., 8 FMSHRC 1269 (September 1986); Kelley
Trucking Co., 8 FMSHRC 1867 (December 1986).

624

In the interest of justice, we conclude that Rivco should be given
the opportunity to present to the administrative law judge the reasons
for its failure to contest the civil penalty proposals and the judge
should evaluate its explanation in light of the precedents cited above.
The judge should also address the timeliness issue raised by the
Secretary in its response to Rivco's petition for discretionary review.
Accordingly, we grant the petition for review, vacate the judge's order
of dismissal of the contest proceeding, and remand the matter for
proceedings consistent with this order.

~:=:?~~~

L. Clair Nelson, Commissioner

625

Distribution
Gene A. Wilson, President
Rivco Dredging Corporation
P.O. Box 702
Louisa, Kentucky 41230
G. Elaine Smith, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Road
Suite B-201
Nashville, TN 37215
Dennis Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Roy Maurer
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

626

ADMINISTRATIVE LAW JUDGE DECISIONS

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

MAY 2 1988
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

Docket No. PENN 87-97
A.C. No. 36-02404-03501 B-70

v.
Greenwich No. 2 Mine
OTIS ELEVATOR COMPANY,
Respondent
DECISION
Appearances:

Linda M. Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner~
Gary L. Melampy, Esq., Reed, Smith, Shaw &
Mcclay, Washington, D.C., for Respondent.

Before:

Judge Maurer
STATEMENT OF THE CASE

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801, et seq., (the "Act") for two alleged violations of the
regulatory standard found at 30 C.F.R. § 77.205(b).~/
The issues before me are the respondent's status as an
"operator" under the Act, and whether the respondent, if
properly charged as an operator in this instance with violating the subject regulation, violated that regulation as
alleged, and, if so, whether those violations were of such a

!I

§ 77.205(b) Travelways and platforms or other means of
access to areas where persons are required to travel or work,
shall be kept clear of all extraneous material and other
stumbling or slipping hazards.

627

nature as could significantly and substantially contribute to
the cause and effect of a mine safety or health hazard, i.e.,
whether the violations were "significant and substantial." If
violations are found, it will also be necessary to determine
the appropriate civil penalty to be assessed in accordance
with section llO(i) of the Act.
The case was heard in Pittsburgh, Pennsylvania, on
October 23, 1987. The parties have filed posthearing briefs
and proposed findings and conclusions, and they have been
considered by me in the course of this decision.
·section 104(a) "S&S" Citation No. 2690794 issued on
October 29, 1986, cites a violation of 30 C.F.R. § 77.205Cb)
and the cited condition or practice is described as follows:
Otis elevator personnel have created a slipping
hazard when they oil the suspension ropes and
grease the bearings on the suspension rope
shieve (sic) drum on the 580 portal shaft elevator. An excess of oil and grease has fallen on
to the travelway below this shieve (sic) drum.
Employees of this coal operator have to use
this travelway when they make their daily elevator examinations.
Section 104Ca> "S&S" Citation No. 2690795 also issued on
October 29, 1986, cites another violation of 30 C.F.R.
§ 77.205(b) and the cited condition or practice is described
as follows:
Otis Elevator personnel have created a slipping
hazard when they oiled the suspension ropes and
also when they greased the bearings on the suspension rope shieve (sic) drum on the Cookport
Elevator. An excess of oil and grease has
fallen on to the travelway below this shieve
(sic) drum. Employees of this coal operator
have to use this travelway when they make their
daily examination on the Cookport Shaft
Elevator.
RESPONDENT'S STATUS AS OPERATOR
All during 1986 the Otis Elevator Company (Otis) had a
contract with the Pennsylvania Mines Corporation CPMC) to
furnish and provide supervision, labor, equipment, tools, materials and spare parts to inspect and maintain elevators including the Cookport and 580 Shaft Elevators at PMC's Greenwich
No. 2 Mine. This maintenance and service contract provided
that Otis would maintain the elevator equipment in safe operating condition and more specifically that Otis would regularly

628

and systematically examine, adjust, lubricate, repair or
replace elevator parts, as required. Under the terms of this
contract, Otis was further obliged to examine periodically all
safety devices and governors and make periodic no load and full
load safety tests. As a practical matter, this amounted to
Otis conducting weekly inspections of the elevators, performing
bi-monthly safety tests and responding to trouble calls and
repairing the elevators on an as-required basis. In consideration for the performance of these services, Otis received
$2,604.61 per month for the 580 Shaft Elevator and $2,633.29
per month for the Cookport Shaft Elevator at the Greenwich
No. 2 Mine.
There is an attachment to this contract, signed for Otis
by one Carl M. Dick as Branch Manager, ~hat arguably registers
Otis as an independent contractor, including providing an
address for service of MSHA citations. Further, Government
Exhibit No. 9 is a Bureau of Mines Legal Identity Report which
also identifies the Corporation as an independent contractor
providing "servicing".
The Act contains a rather broad definition of "operator"
at section 3(d):
For the purpose of this Act, the term--

*

*

*

*

*

*

*

(d) "operator" means any owner, lessee, or
other person who operates, controls, or supervises a coal or other mine or any independent
contractor performing services or construction
at such mine <emphasis added).
Against the background that Otis is an elevator service
company whose employees, pursuant to a service contract between
Otis and PMC performed inspections and conducted safety tests
on a regular basis on the two elevators at the Greenwich No. 2
Mine as well as performing more extensive maintenance and
repair work on those elevators on an as-needed basis, it seems
patently clear to me that the language of section 3Cd) of the
Act intended to include them within the definition of "operator".
I have previously so held in Secretary v. Otis Elevator
Co., 9 FMSHRC 1933, 1935 (November 10, 1987) appeal docketed,
No. PENN 86-262 (December 18, 1987). That case involved an
elevator at PMC's Greenwich No. 1 Mine which was being serviced
and maintained by Otis pursuant to the same contract as is
herein involved.

629

Otis contends that it is not an "operator" subject to the
jurisdiction of the Mine Act notwithstanding its service contract with PMC because of its allegedly minimal presence at
the mine. The company argues that the U.S. Courts of Appeals
for the Third and Fourth Circuits have concluded, based on the
Act's language and its legislative history, that Congress did
not intend to classify all independent contractors who might
have employees on mine property as "operators" within the meaning of the Act, citing National Industrial Sand Association v.
Marshall, 601 F.2d 689 (3d Cir. 1979), and Old Dominion Power
Co. v. Donovan, 772 F.2d 92 (4th Cir. 1985).
Both cases are distinguishable.
In National Industrial
Sand Association, the issue the court was faced with was substantially different. The issue before the Third Circuit was
whether the Secretary was statutorily authorized to include
fewer than all independent contractors as operators for purposes of the training regulations. The Court, however, at the
beginning of its analysis did set forth some general guidance:
'Operator' is defined in the Mine Act as 'any
owner, lessee, or other person who operates,
controls or supervises a coal or other mine or
any independent contractor performing services
or construction at such mine.' As this definition indicates, some, if not all, independent
contractors are to be regarded as operators.
The reference made in the statute only to independent contractors who 'perform [] services or
construction' may be understood as indicating,
however, that not all independent contractors
are to be considered operators. There may be a
point, at least, at which an independent contractor's contact with a mine is so infrequent
or de minimis that it would be difficult to
conclude that services were being performed.
601 F.2d at 701 (footnote omitted).
Old Dominion, supra, while an enforcement proceeding
similar to the instant case, presents a very different situation factually.
In Old Dominion, the utility's contacts with
the mine were truly de minimis.
The sole revenue derived by Old Dominion from
its relationship with Westmoreland is for the
sale of electric power. Old Dominion does not
perform any maintenance at the substation, or
of the transmission or distribution lines leading to and from the substation. Old Dominion's

630

employees install equipment to measure voltage
and amperage for its meter, maintain the meter
and read it approximately once per month for
purposes of billing. 772 F.2d at 93.
In holding that the MSHA regulations do not apply and
were not intended to apply to electric utilities whose sole
relationship to the mine is the sale of electricity, the Court
stated that:
Old Dominion's only contact with the mine is
the inspection, maintenance, and monthly reading of a meter for the purpose of sending a
bill to a mine company for the sale of electricity. Petitioner's employees rarely go upon
mine property and hardly, if ever, come into
contact with the hazards of mining.

*

*

*

*

*

*

*

MSHA seeks to regulate those few moments every
month when electric utility workers read or
maintain meters on mine property.

*

*

*

*

*

*

*

Plainly, Congress intended to exclude electric
utilities, such as 01.d Dominion, whose only
presence on the site is to read the meter once
a month and to provide occasional equipment
servicing. 772 F.2d at 96-97.
In stark contrast to the Old Dominion factual situation,
I find as a fact that Otis' contractual obligations and performance thereof constituted a substantial, as opposed to a
de minimis continuing presence at the Greenwich No. 2 Mine.
Pursuant to its service contract, an Otis maintenance examiner
conducted a weekly routine inspection of the elevators and
performed any necessary maintenance work as well as preventive
maintenance at that time. Every other month, he would also be
required by the terms of the contract to conduct a no load
safety test. Additionally, Otis responded to service calls at
each elevator on average at least once per month, with more
frequent calls during the winter months. Furthermore, during
1986 (the term of this contract), the Otis technician had on
one or more occasions added oil to the automatic lubricating
boxes for the hoisting ropes and greased the bearings on the
deflector sheaves on these two elevators. Oil from these
ropes and grease from these bearings are most likely the

631

source of the accumulations of oil and grease complained of in
the citations at bar. I note here parenthetically, however,
that the inspector has not, nor has anyone else, ever determined who was responsible for the specific accumulations he
found on October 29, 1986. Quite frankly, as I will discuss
later in this decision, it could very well have been the coal
operator's employees who were responsible for the excess accumulations the inspector found.
Both Otis and PMC employees had
equal access to the elevator equipment, and as I will discuss
later, both entities had their own motivations to lubricate or
over-lubricate it.
Otis also urges and I am satisfied that they do not
extract coal from the mine or perform construction work at the
mine nor exclusively control any portion of the mine, including the elevators at issue herein. I also agree that they did
not maintain a daily presence at the mine. Nevertheless, they
were an independent contractor performing substantial services
on critical equipment at the mine. These elevators, although
not used to transport coal out of the mine and thus, not
per se part of the coal production or extraction process, are
used as "man-trips" to transport the production crews into and
out of the mine and additionally, are designated escapeways
for the mine.
Otis employees regularly and frequently inspect, service
and repair these elevators and while Otis does not have exclusive physical control over the elevators themselves, it most
certainly did have the responsibility by way of contractual
obligation for their inspection, maintenance and repair.
Therefore, I agree with the Secretary, as I have before, that
the Otis Elevator Company is exactly the type of independent
contractor which Congress intended be subject to the Mine Act.
FACT OF VIOLATION - 30 C.F.R. § 77.205(b)
On October 29, 1986, Inspector Niehenke observed an accumulation of oil on the platform below the deflector sheave on
both the Cookport and 580 Shaft Elevators. He described the
accumulation as covering the entire platforms with anywhere
from a thin film to a quarter of an inch of light-colored oil.
There were also scattered piles of grease, approximately an
inch high, on the platforms, below the sheave wheels in this
oil. These platforms were used by mine personnel at least
weekly at that time to perform their required inspections of
the elevator equipment. Mr. Gach, the Greenwich employee who
was responsible for inspecting the elevators, testified that
there was no other way to inspect the sheave wheels or hoisting ropes without going out onto these platforms.

632

Based on the foregoing, I find that the oil accumulations
found by Inspector Niehenke on the two platforms presented an
unquestionable slipping hazard and therefore constituted violations of the cited mandatory safety standard as alleged in the
two citations at bar.
The harder question is which operator, Otis or PMC, is
responsible for these violations.
RESPONSIBILITY FOR THE VIOLATION
STRICT
LIABILITY UNDER THE MINE ACT

1

The Commission has often held that an operator is liable,
without regard to fault, for violations of the Act or its regulations committed by its employees. The majority most recently
re-affirmed this principle in Western Fuels-Utah, Inc.,
10 FMSHRC
(March 25, 1988).
It is also clear that there can be more than one "operator" at any particular time in a given mine. As I have already
found in this case, Otis was an independent contractor type
operator during the term of its contract while FMC remained the
mine operator or "owner-operator" throughout the same time
period.
The Secretary states and I agree that MSHA may cite either
the independent contractor or the mine operator for violations
committed by independent contractor employees. Both the
Commission and the federal courts have held that owners of coal
mines can .be held strictly liable for violations of the Act
committed by their independent contractors. Republic Steel
Corp., 1 FMSHRC 5, 9 (1979); Old Ben Coal Co., 1 FMSHRC 1480,
1481-83 (1979); Cyprus Industrial Minerals Co. v. FMSHRC,
664 F.2d 1116, 1119 (9th Cir. 1981). However, I am unaware of
any authority that stands for the obverse proposition--that the
independent contractor is strictly liable for the actions of
the coal operator's employees. That very well may be the
factual situation we are confronted with in this case, although
there is no direct evidence of that.
In fact, there is no
direct evidence of any identifiable individual or entity that
is responsible for the violative condition found by Inspector
Niehenke. It is clear that there were two violations extant
and that someone's negligence was the cause of their existence.
It remains unknown, however, who the negligent actor was and by
whom he was employed.
Inspector Niehenke, in his discretion, exercised his
judgment and cited Otis Elevator Company for causing the two

633

violations at bar, rather than the coal operator. I note,
however, that the coal operator did not escape unscathed. PMC
was also issued two citations that day by Inspector Niehenke
for violations of the identical mandatory standard for permitting the slipping hazard to exist on the same two elevator
platforms. It appears to me as though the inspector is making
the two pools of oil serve double duty as the basis for four
rather than two citations, because had he also alleged that
PMC was responsible for causing the violative accumulations,
since the same mandatory standard is involved, the four "violations" would have merged into two, one for each elevator.
-The inspector arrived at his decision to cite Otis, rather
then PMC, primarily on the basis of talking with Mr. Gach and
his alternate, Mr. Burskey CTr. 109-110):
I asked them if they oiled the ropes. They
told me no, they did not. They were given
instructions not to oil the ropes. I asked
them who they thought could have done this, and
they felt Otis done it, because Otis does the
service contract work on the elevators. That's
basically how I came to the conclusion that the
contract operator certainly had involvement in
these proceedings.
At trial, however, Mr. Gach, who was responsible for
servicing the elevators prior to the contract with Otis,
admitted that on occasion he still serviced the elevators (Tr.
23):

Q. Did you ever fill the box with oil when the
Otis Elevator people were the contractors?
A.
I probably did it once or twice in the
years they were there. If you went up there, I
was doing my inspection, and the box was dry,
you would have to put oil in it.
The inspector did not ask the assigned Otis employee or
any Otis employee for that matter what work he had performed
on the elevator or who he thought might be responsible for the
accumulations. Had he done so, Mr. Shaffer presumably would

634

have told him, as he did testify, that at the beginning of
1986 he used to add oil to the lubricating boxes 2/ whenever
he thought the ropes needed lubrication. Otherwise, he let
them run dry. PMC, however, was concerned that the ropes be
lubricated at all times because MSHA had cited it for instances
in the past when the hoisting ropes had become rusted. So,
beginning in May, 1986, Shaffer added oil to each lubricating
box during his inspections at the insistence of mine management.
He categorically denies, however, taking any further action
with regard to iubricating the ropes at any time during the
term of the contract. He specifically denies ever applying oil
to those portions of the ropes which do not pass by the lubricating boxes. 3/ He stated that such lubrication was unnecessary because those 20-30 feet of rope also do not go over the
sheave wheel and therefore the internal hemp core of the rope
provides sufficient lubrication for those lengths. Shaffer
also specifically denies ever adjusting or replacing the wicks
on the lubricating devices or in fact doing anything to them
other than putting oil in the boxes.
With regard to the grease droppings, Mr. Shaffer testified
that he greased the bearings on the deflector sheaves on
the two elevators in May of 1986. That was the one and only
time he greased those bearings and he never noticed more than a
drop or two of grease leaking out of those bearings in the
2/ There were automatic lubricating devices consisting of a
lubricating box which holds a quantity of oil and a wick made
from a felt pad, installed in the elevator machine room for
each of the nine hoisting ropes. The wick extends out of the
box so as to be near the rope without actually touching it.
The oil is then applied electrostatically to the rope as it
passes near the wick. Once the ropes are coated with a thin
film of oil, the electrostatic action stops until the rope
becomes dry again. At that point, oil is again applied to the
rope by electrostatic action.
~/ Mr. Gach described a procedure that he has used to manually
oil the 20-30 feet of rope that do not pass by the lubricating
boxes at Tr. 30:
"There is a certain amount of ropes on the sheave wheel
that don't go through the oil, and you have got to go down
there with a brush and brush oil on them.
I think there are in
the neighborhood of twenty feet of rope that won't go through
the oil."
He described this as a "messy" procedure and opined that
perhaps the Otis technician had done this and not cleaned up
after himself.

635

nearly 6 months between May and October of 1986. Prior to
that time, when Otis first took over the maintenance on the
elevators from the coal operator, he states those bearings
were grossly over-greased and that he had to clean them up
weekly, but that by May of 1986, he had the old over-greasing
under control.
I find the testimony of Lynn Shaff er to be cogent and
internally consistent throughout. I therefore find that testimony to be very credible and I do credit it in making this
decision.
'The testimony of Mr. Gach by comparison contradicts the
Secretary's allegations in places and is internally inconsistent on a critical bit of evidence. He first stated at (Tr.
38-40):

Q. When had you last had occasion to be on the
platform before the citation?
A.

It was probably two or three days.

Q.

About the time the Otis employee was there?

A.

I would say so.

Q.

Sometime after he was there?

A.

Yes.

But before Leroy [Inspector Niehenke] was
there?

Q.

A.

Yes.

*

*

*

*

*

*

*

Did you see an oil accumulation on that
day; the last day prior to the inspection?

Q.

A.

No.

This is the same for both of these two elevators I take it?

Q.
A.

Yes.

Then later he testified at (Tr. 56):

636

Q. The last time you were on the platform
there was no accumulation?
A.
I'm absolutely sure there wasn't, and I'm
sure Otis was there afterwards.
My reading of the record herein including the fact that
PMC was very concerned with lubricating these ropes leads me
to believe that it is at least as likely that an overzealous
PMC employee over-lubricated these ropes and bearings, as an
Otis employee.
Apropos this point, Inspector Niehenke was cross-examined
concerning his testimony at an earlier hearing about another
citation he issued at PMC's North Portal elevator (Tr.
151-153):
Q.
I am reading from page 126 of your testimony at a hearing, which is PENN 86-262, which
was given on March 31, 1987.
"Question. On February 27 you issued a
citation to the mine operator, but on March 3
you issued a citation to Otis?" "Answer. That
is correct."

*

*

*

*

*

*

*

Q.

The previous citations that you issued were
issued to the mine operator because the ropes
were over lubricated?
A.

Yes.

*

*

*

*

*

*

*

Q. So, you were testifying that the mine operator, Greenwich Collieries, was responsible for
over lubrication of the governor ropes on
February 27?
A.

Yes.

Q.

Would you agree that the services that Otis
provided to the Cookport and 580 elevators did
not differ in any way in the services Otis
provided to the North Portal elevator?
A.

They provide the same service, yes.

637

Q. And you determined in issuing your citation
that it was the mine operator that was responsible for the over lubrication of the ropes on
the North Portal elevator?
·
A.

I couldn't establish it was Otis.

On redirect examination, he reiterated (Tr. 156-157):

Q. Mr. Niehenke, remembering back to the March
.hearing and what you were talking about there,
when you issued those citations on the governor
ropes to Greenwich Collieries, why did you
issue them to Greenwich instead of to Otis?
A. Because I couldn't establish that Otis put
the lubrication on the ropes.
The same problem exists for the Secretary in this case.
She cannot establish that Otis put the lubrication on the
ropes or over-greased the bearings. In sum, she cannot establish that Otis was the responsible operator. I also find and
conclude that the party who was in the best position to eliminate the hazard was the party who in fact did abate the violation, the coal mine operator. Furthermore, I expressly reject
the Secretary's contention that Otis can be held strictly
liable for violative conditions that were caused by the coal
mine operator's employees.
I am not persuaded that the Secretary has met her burden
of proof on the issue of whose employees caused these violative conditions and absent a preponderance of the evidence
which would tend to establish that it was an Otis employee, I
do not believe the citations were properly issued to Otis.
Accordingly, I am going to vacate the two citations at bar.
ORDER
It is ORDERED THAT:
1. Section 104(a) Citation Nos. 2690794 and 2690795 ARE
VACATED.

638

2. MSHA's petition for assessment of a civil penalty IS
DISMISSED.

urer
rative Law Judge
Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Gary L. Melampy, Esq., Reed, Smith, Shaw & Mcclay,
1150 Connecticut Avenue, Suite 900, Washington, DC 20036
(Certified Mail)
/fb

639

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

MAY 4 \988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING

.

KENNETH-B. MIRACLE,
Respondent

Docket No. LAKE 88-44
A. C. No. 11-00598-03638-A
Peabody Coal Company
Eagle No. 2 Mine

DECISION
Appearances:

Before:

Edward H. Fitch, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia for
Petitioner;
Davids. Hemenway, Esq., Senior Counsel,
Peabody Holding Company, Inc., St. Louis, Missouri,
for Respondent.

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section llO(c) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq., the "Act", charging that "on or about May 28, 1986,
Respondent, acting as an agent of the corporate mine operator
within the meaning and scope of sections 3(e) and llO(c) of the
Act, knowingly authorized, ordered, or carried out, said
operator's violation of 30 C.F.R. § 75.200."
Section llO(c) provides as relevant hereto that "[w]henever
a corporate operator violates a mandatory health or safety
standard ••• any ••• agent of such co~poration who knowingly
authorized, ordered, or carried out such violation ••• shall be
subject to the same civil penalties, fines and imprisonment that
may be imposed upon a person under subsections (a) and Cd).
Since in this case it is alleged that the Respondent,
Kenneth B. Miracle, committed the violation as an agent of the
corporate operator, proof of this allegation would be sufficient
to also prove that the corporate operator violated the cited
regulation. The citation under which the corporate operator was
charged alleges as follows:

640

The assistant superintendent, K. Miracle, was observed
to have come through an area of unsupported roof where
a roof fall had occurred. The area of unsupported roof
was about 4 to 5 feet wide and 8 to 10 feet between
permanent roof supports. The area was located in the
first cross-cut outby the tail of the first section of
the second main west belt conveyor.
The Secretary maintains that the cited practice constituted
a violation of that part of the regulatory standard at 30 C.F.R.
§ 75.200 that provides "no person shall proceed beyond the last
permanent support unless adequate temporary support is provided,
or unl~ss 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" (Tr. 8).
Motion to Dismiss
In a Motion to Dismiss filed with his Answer,
Respondent Miracle states six grounds for dismissal, namely:
1. Respondent has not been served with a duly authorized and
issued citation or order as required under section 104 of the
Act.
2. The petition cites no material or relevant citation or order
issued against Respondent as required by 29 C.F.R. § 2700.27.
3. Respondent has been denied due process in that he has been
deprived of the right to contest a citation or order as provided
in section 105(a) of the Act and 29 C.F.R Sections 2900.20 et.
seq.
4. Petitioner has violated its own regulations in proposing to
assess a civil penalty without having first reviewed the citation
or order as provided in 30 C.F.R. § 100.2.
5. The citation/order attached to said petition was fully
disposed of in a civil penalty action brought against the
operator and petitioner is estopped to seek additional penalties.
6. Petitioner is guilty of laches in seeking a civil penalty in
this cause in tha~ an unreasonable length of time has elapsed and
Respondent has materially changed his position.
Mr. Miracle cites no legal authority for his proposition
that a respondent in a proceeding under section llOCc> of the Act
must be served with a citation pursuant to section 104 of the Act.
Indeed the provisions of section 104(a) of the Act specifically
limit the issuance of citations to "an operator of a coal or

641

other mine". See also Secretary of Labor v. Kenny Richardson, 3
FMSHRC 8 (1981), aff'd 689 F.2d 632 (6th Cir. 1982), cert.
denied, 461 U.S. 928 (1983). The contention is without merit.
Respondent Miracle alleges, secondly, that the Petition for
Civil Penalty in this case "cites no material or relevant
citation or order issued against [him] as required by 29 C.F.R.
2700.27". The short answer is that Commission Rule 27, 29 C.F.R
§ 2700.27 is limited by its own terms to proposed assessments of
civil penalties against mine operators. There is no similar
requirement for cases under section llO(c) of the Act. This
contention is therefore also without merit. I note however that,
in any event, the Respondent herein was served with a copy of the
citation issued to the mine operator and which provided the basis
for the proceedings against him under section llO(c) of the Act.
Respondent claims, thirdly, that he was denied due process
"in that he has been deprived of the right to contest a citation
or order as provided in section 105Ca) of the Act and 29 C.F.R. §
2900.20 et. seq." Section 105Ca) of the Act is again however
specifically limited to citations or orders issued to the mine
operator and not to individuals in proceedings under section
llO(c) of the Act. In any event the Respondent has had, contrary
to his allegation, the opportunity in these proceedingi to
contest the underlying violation charged in the citation against
the mine operator. See Richardson, supra. 3 FMSllRC 8 at p.10.
Respondent maintains, fourthly, that "Petitioner has
violated its own regulations in proposing to assess a civil
penalty without having first reviewed the citation or order as
provided in 30 C.F.R. § 100.2." Respondent has failed to prove
as a factual matter that the Secretary did not indeed perform a
review pursuant to her own regulations under 30 C.F.R. § 100.
Indeed the Secretary denies the allegation. In any event
Respondent cites no authority for the proposition that the
Secretary must first review a case under section 110(~) of the
Act pursuant to those regulations before initiating an action
before this independent Commission. Indeed I do not find that it
is a statutory precondition to the instant proceedings.
Respondent maintains, fifthly, that "the citation/order
attached to said Petition was fully disposed of in a civil
penalty action brought against the operator and Petitioner is
estopped to seek additional penalties". It is not disputed that
Peabody Coal Company, the corporate mine operator, has already
paid a civil penalty for the violation of 30 C.F.R. § 75.200
cited in Order/Citation No. 2819724. However the Commission has
held that these separate proceedings against the corporate agent
under section llO(c) of the Act are not foreclosed by the

642

separate action against the corporate operator.
supra., 3 FMSHRC at 10-11.

Richarson,

Finally Respondent alleges that "Petitioner is guilty of
laches in seeking a civil penalty in this cause and that an
unreasonable length of time has elapsed and Respondent has
materially changed his position". Respondent has failed to
support this allegation with any evidence that he has "materially
changed his position" as a result of any alleged delay in
bringing the instant action. In any event the Federal Government
is not affected by the doctrine of laches when enforcing a public
right. See Occidental Life Insurance Co. v. EEOC, 432 U.S. 355
(1977); Under the circumstances the Motion to Dismiss is denied.
The Merits
Wolfgang Kaak, an inspector for the Federal Mine Safety and
Health Administration CMSHA) was conducting a spot inspection of
the Peabody Coal Company Eagle No. 2 Mine on the morning of
May 28, 1986, when he learned of a rock fall at the tail piece of
the 1 South Belt. Unable to obtain a clear view from the west
side of the fall because of obstruction from the fall material,
Kaak viewed the area from the east side of the fall through a
mandoor. Kaak observed material still "dribbling down" from the
roof, observed that the rib on the left side was r.agged and loose
and that the fall area came to within one or two feet of the rib.
Kaak also saw that a roof bolt remained in the brow and that
there were cracks in the cross-cut on the far side.
(See Exhibit
R-2). Kaak also observed that the distance between the remaining
roof bolts was 13 feet 3 inches in the area of the roof fall.
The roof control plan required bolts at 5 foot centers beginning
5 feet from the ribs.
Later, while standing 50 feet to the east of the mandoor Cat
point Don Exhibit R-2), Kaak saw what appeared to be a caplight
emerge from the mandoor.
It turned out to be the Respondent, Mr.
Miracle. Miracle admitted that he had passed from the south
cross-cut through to the east belt. Kaak asked:
"Kenny was that
area bolted?" and Miracle purportedly responded "yes it was".
Later at a meeting in the.mine superintendent's office Kaak asked
Miracle: "did you go through that area of unsupported roof?",
and Miracle allegedly replied "Yes, I hugged the ribline and
thought I was in a safe position".
Miracle also admitted at hearing that he had proceeded that
morning through the general area of the rock fall but had "hugged
the left rib from point B to A" (Exhibit R-2). Miracle explained
that he first listened to determine that the top was not working
and then proceeded into the subject area on his stomach. He then
turned over on his side to look back at the south brow to examine

643

the crack to determine the length of roof bolt needed to go
through the brow. Miracle testified that as he passed through
the area he also checked the east brow. The roof in that
location was only about 3 feet high because of the debris and it
took less than 3 minutes to pass through. Miracle testified that
he felt he was protected by the adjacent rib and that the roof
support was in fact the rib itself. He further described the
area between the rib and the edge of the rock fall as some 2 feet
to 3 feet and the actual distance traversed was about 8 feet
along this rib. Miracle claims that it was necessary for him to
proceed out in the rock fall area as the only way to determine
the length of bolts to place in the brow to enable work to
resume.- Miracle claims that when asked by Kaak if he had come
through the unsupported fall area he responded "no, I came along
the rib line". Miracle testified that it was not unsafe for him
to travel that route but conceded that he would "not probably"
have sent someone else into the area.
There is no dispute in this case that the Respondent was, as
assistant mine superintendent, an agent of the corporate mine
operator. The issue is whether he knowingly carried out a
violation of the mandatory standard cited in this case i.e. 30
C.F.R. § 75.202. In this regard I place significant weight on
Inspector Kaak's testimony that in response to his question at
the meeting in the mine superintendent's office shortly after the
issuance of the citation: "did you go through that area of
unsupported roof?"; Miracle responded "yes, but I hugged the
ribline and thought I was in a safe position". Although in
testimony at hearing Miracle essentially denied making that
statement, it is apparent that by the date of hearing he had
ample opportunity to reflect upon and change the damaging aspects
of that prior statement. He also had opportunity to call others
present at that meeting as corroborating witnesses at hearing but
failed to do so. Under the circumstances I find Inspector Kaak's
testimony as to Miracle's admission to be fully credible. This
admission in itself is sufficient to prove that Miracle violated
the cited standard and that he did so "knowingly".
I also note in this case that Miracle testified that he
would "not probably" have sent any other mine personnel into the
rock fall area he traversed. Accordingly it may reasonably be
inferred from this testimony that Miracle, as a reasonably
prudent person familiar with the mining industry and protective
purposes of the standard, would not have sent anyone into the
subject area because it was not safe for the reason that it was
not properly supported within the meaning of section 75.200. See
Secretary of Labor v. Canon Coal Co., 9 FMSHRC 667 (1987). This
evidence also supports the reasonable inference that Miracle,
"knowlingly" violated the standard.

In light of Inspector Kaak's testimony that the roof was
still "working", with rock material dribbling down from the area
of the rock fall and that the adjacent rib was ragged, loose and
with cracks, it is readily appa~ent that the violation was of the
highest gravity. This finding is corroborated by Miracle's
acknowledgment that he would not have sent anyone else though
this area.
In assessing a civil penalty in this case I have considered
the evidence that other Peabody supervisory personnel, who were
the subject of Federal criminal indictments for similar
violations at the same mine, had been placed on a
probat1onary-type status through a pretrial diversion agreement.
I nevertheless believe that a civil penalty is appropriate in
this case because of the flagrant nature of this violation and in
the presence of other miners. The Respondent thereby
demonstrated a contemptuous disregard for a significant safety
regulation and set an improper example for his subordinates.
Moreover by placing himself in a dangerous position in an area of
unsupported roof, Miracle was creating a potentially serious
hazard not only to himself but to others who might be called upon
to rescue him in the event of a further roof fall.
Under the circumstances I find that a civil penalty of $200
is appropriate.
ORDER
Kenneth B. Miracle is hereby directed\~o pay a civil penalty
of $200 within 30 days of the date of this \ecision.

0 \

\.

(,' (

\_.. ',, ~'---"--/ \'v ·~ ,
Gary Melick
"\.
/ Administrativ Law Judge
(703). 756-626

Distribution:

i

'{_J{

\

\ :

Edward H. Fitch, Esq., Office of the Solicitor, u. s. Department
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(Certified Mail)
Davids. Hemenway, Esq., Peabody Coal Company, Inc., 201 N.
Memorial Drive, P. O. Box 373, St. Louis, MO 63166 (Certified
Mail)
npt

645

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

MAY 5 1988
SEC.RETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

v.
J & K CONSTRUCTION COMPANY,
Respondent

.
.
..

Docket No. WEVA 87-61
A.C. No. 46-01433-03505 -S46
Loveridge Mine

DECISION
Appearances:

William T. Salzer, Esq., Office of the Solicitor
U.S. Department of Labor, Philadelphia, PA, for
Petitioner~

William A. Johnson, Esq., Washington, PA, for
Respondent.
Before:

Judge Fauver

This civil penalty proceeding was brought by the Secretary
of Labor uQder the Federal Mine Safety and Health Act of 1977, 30
C.F.R. § 801 et ~
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following:
FINDINGS OF FACT
Order 2698660
1. On September 19, 1986, MSHA Inspector Wayne Fetty
inspected a worksite under the control of Respondent, a
subcontractor, at the Loveridge Mine No. 22. Respondent was
performing metal sheeting work on the outer walls of a
preparation plant.
2.
Inspector Fetty inspected three scaffolds used by
Respondent at the Loveridge worksite. Each scaffold was an
electrically powered "working platform" (or hoist) used by two
individuals to raise and lower themselves alongside a building.
At the time of the inspection no workers were on the scaffolds
because of a work stoppage after an accident.
3. The scaffolds were 15 to 75 feet above ground, suspended
from outrigger beams on the roof. Two outrigger beams were used

646

for each scaffold. Counterweights on the outrigger beams
balanced the weight placed on the scaffolds; The counterweights
were concrete discs held on a retaining rod.
4. On September 19 Inspector Fetty .observed seven scaffold
rope hooks with defective safety latches in that a spring
operated latch was missing or broken. He found a hazardous
condition for each latch because of the possibility that the
scaffold rope would slip off the hook attached to the outrigger
beam.
5. The September 18 entries in Respondent's examination
book did not mention defective safety latches. The book
contained safety checklists that were to be filled in by the
examiner and countersigned by a supervisory official. However,
no one countersigned the examination book on September 18 and as
a matter of policy and practice, the lead sheeters conducted
inspections of the scaffolds and rigging but the foreman made the
entries and signed the book in the place for the examiner. The
foreman had not been informed by the lead sheeter that the safety
latches were missing or defective. As a result of investigations
by MSHA prior to September 18, 1986, Respondent was placed on
notice of the necessity for thorough daily examinations of the
scaffolding equipment.
6.
Inspector Fetty found that the counterweight assembly
for Scaffold No. 1 did not hqve a pin for the retainer rod. A
missing pin creates a hazardous situation. If the counterweight
assembly were tipped to one side, the weights could slip off the
retainer rod and the beams and scaffold could fall to the ground.
At the time of inspection, Scaffold No. 1 was about 75 feet above
ground. Respondent asserted at the hearing that the scaffold was
going to be moved and that the retainer pin had been removed for
the purpose of relocating the counterwights, but there was no
evidence or claim of an intended move at the time of the
inspection. The missing pin was was not recorded in the hoist
inspection book on September 18.
7.
Inspector Fetty observed that No. 2 Scaffold, which was
about 15 feet above ground, was missing a backrail. The function
of the backrail is to prevent persons from falling backwards off
the scaffold. The missing backrail was not noted in the
examination book for September 18. The foreman had not been
informed by the lead sheeter that the backrail was missing.
8. Based upon his findings of safety defects in the
scaffolds and rigging, and his inspection of the examination book
for September 18, Inspector Fetty issued Order 2698660, which
charges a violation of 30 C.F.R. § 77.1403 based upon the
following "Condition or Practice":
According to the records entered in the approved book
9-18-86 of the daily inspections of the powered
scaffolding, used by sheathing personnel, are
647

inadequate in that upon my inspection of the
scaffolding the following conditions was observed. The
safety devices for the hooks attached to the outrigger
beam located on the 7th floor roof is missing, the
missing device is required to prevent the attached rope
or cable from slipping off the hook. The two required
hooks on each of the scaffolds were found the same way
(Safety latches missing a total of seven) the bottom
scaffold is not provided with a back guard to prevent a
worker from falling, this scaffold is about 14 feet
above the ground. The outrigging device installed on
tbe seventh floor is not provided with pins to keep the
counterweights from falling off should the outrigger
beams turn sideways. A complete inspection of the
scaffolding shall be made and the findings recorded in
the approved book. Huey Kowcheck is the responsible
foreman. The area is the Ludridge coal preparation
plant.
Order 2698946
9. On September 18, 1986, MSHA Inspector Homer Delovich
inspected Respondent's worksite at the Loveridge Mine No. 22
preparation plant. He was called to the worksite after being
informed of an accident there that morning.
10. At the time of the inspection no workers were on the
scaffolds because of a work stoppage after the accident.
Respondent's contract work was to replace the sheeting on the
outside of the preparation plant. Work began around 7:00 a.m.
On the morning of September 18 John Carlisle and Dick Guthrie
were working in the area of the Nos. 1, 2, and 3 scaffolds shown
on Government Exhibit No. 9. Mr. Kowcheck was the foreman for
the entire worksite. Inspector Delovich arrived at the worksite
between 9:45 and 10:00 a.m. The accident occurred about 9:30
a.m.
11. No protection against falling objects was provided to
persons working or traveling under Scaffold Nos. 1, 2 and 3.
Individuals were exposed to the hazard of being hit by falling
tools, equipment or aluminum sheeting. The area underneath
Scaffolds Nos. 1 and 2 was traveled frequently by employees
entering or leaving the preparation plant through the lunchroom
door or equipment doors. This area was not roped off and danger
signs were not provided. Inspector Delovich observed these
conditions before the arrival of the ambulance (at 10:10 a.m.)
and the removal of the accident victim from the worksite.
12. Respondent was informed by MSHA on prior occasions of
the necessity of protecting persons from falling objects from
scaffolds.

648

Order 2698945
13. On September 18, 1986, Inspector Delovich observed that
Scaffold No. 2 (Gov. Ex. 9) was resting on top of a tin canopy
structure that partially covered an elevated conveyor belt. The
tin canopy was bordered by a walkway along the belt. A
preponderance of the reliable evidence indicates that the
sheeters climbed on the canopy below the scaffold to board or
exit No. 2 Scaffold.
Order 2698947
15. On September 19, 1986, Inspector Delovich observed that
No. 3 scaffold was located directly beneath an elevated belt
conveyor.
16. Workers on No. 3 Scaffold were exposed to a hazard of
being struck by broken conveyor belting in the event of an
accident or malfunction of the conveyor above them. Broken belt
sections could fall through the structure housing the conveyor
and strike. a worker on the scaffold. This condition exposed
workers to a risk of serious injuries.
17. The foreman, Huey Kowcheck, had directed an
employee, Scott Morgan, to install a water deflector above
Scaffold No. 3 so that sheeters would not be hit with water
draining off the conveyor belt. Mr. Kowcheck indicated to MSHA
Inspector Paul Moore that the belt was running while sheeters
were working on the No. 3 Scaffold.
DISCUSSION WITH FURTHER FINDINGS
Order 2698660
This order cites a violation of 30 C.F.R. § 77.1403 on the
ground that an adequate examination had not been made of the
three scaffolds on September 18, 1986. The inspector found a
number of unsafe conditions but these were not reported in the
required examination book and the person who signed the book was
not the examiner who actually made the inspection. Inspector
Fetty testified that the unsafe conditions included missing
safety latches for the suspension ropes on the three scaffolds, a
missing retaining pin for a counterweight assembly on one
scaffold, and a missing backrail for another scaffold. None of
these conditions was reported in the examination book.
Respondent acknowledges fault for one missing safety latch,
for a well wheel hoist that transported parts and equipment to a
scaffold (Tr. 159-160), but contends that the six outrigger beams
were missing safety latches intentionally because they were not
required.
Inspector Fetty disagreed, and testified that he
observed hooks that did not have a required spring safety latch
and that when he told the foreman of this the foreman showed him
hooks with safety latches that were available but had not been
installed.
649

I accept the inspector's testimony that required safety
latches for hooks used to suspend the scaffolds were missing or
broken.
With respect to the missing pin for the retaining rod,
Respondent contends that the pin had been removed in order to
move the scaffold. The inspector tescif ied that the two
outrigger beams were approximately parallel and there was no
evidence or statement during the inspection of plans to move the
scaffold. The post-inspection explanation of Respondent as to
the missing pin is not persuasive. There was ample opportunity
for Respondent to offer an explanation as to the missing pin at
the time the inspector was there, so that the inspector could
have investigated the explanation by interviewing witnesses and
verifying their statements against the physical evidence.
Respondent failed to use this evidentiary opportunity and has not
effectively rebutted the inspector's testimony on this point.
Similarly, the missing backrail was not explained by
Respondent at the time of the inspection, and its post-inspection
explanation is not found persuasive.
Respondent acknowledges that its policy was to have the
foreman sign the examination book and not make the safety
inspections himself (occasionally he made an inspection) (Tr.
203). This practice does not comply with the requirements of 30
C.F.R. §§ 1403 and 1404, which are interrelated. Section 1403
requires daily examinations of hoists and § 1404 provides that
"the person making the [§ 1404] examination shall certify, by
signature and date, that the examination has been made" and "If
any unsafe condition is found ••• the person conducting the
examination shall make a record of the condition and the date."
Neither of these requirements was met by Respondent, with the
result that an adequate examination within the meaning of § 1403
was not made on September 18, 1986. This violation was serious
because the purported examination signed by the foreman gave the
erroneous representation that the hoists were safe when in fact
there were serious safety defects. Given the background of prior
accidents, investigations and clear notice to Respondent of the
necessity for thorough, accurate safety examinations of the
hoists, I find that Responden't violation was unwarrantable.
Considering all of the criteria for a civil penalty under
of th~ Act, I find that a civil penalty of $800 is
appropriate for this violation.
§ llO(i)

650

Order 2698946
The inspector arrived at the accident site before the
ambulance arrived. He saw no evidence of a danger sign or rope
to keep people from the area beneath Scaffolds Nos. 1 and 2.
Those scaffolds were being used for overhead work before the
accident.
Respondent's witness Raymond Jennings testified that the
area had been roped off with a danger sign on September 16 and
17, but he was not there on September 18. Respondent's witness
Michael Cruny testified that the area was roped off with a danger
sign tfie morning of September 18, but the inspector saw no
evidence of a rope or danger sign when he arrived. I accept the
inspector's testimony, and find that the inspector reasonably
concluded that the area beneath active scaffolds was not
protected from falling objects. This was a serious and
unwarranted safety hazard in violation of § 77.203.
Considering all of the criteria for a civil penalty in
find that a civil penalty of $300 is
appropriate for this violation.
§ llOCi) of the Act, I

Order 2698945
The inspector was justified in finding that employees were
boarding and exiting No. 2 Scaffold by climbing on top of a tin
canopy. This was not a safe means of access to or from a working
place. Respondent contends that each employee was protected by a
life line. However, a life line is not intended as a meams of
access to or from a scaffold and does not justify subjecting
employees to falling hazards by unsafe access means. This was a
serious and unwarranted violation of § 77.205.
Considering all of the criteria for a civil penalty in
of the Act, I find that a civil penalty of $500 is
appropriate for this violation.

§ llOCi)

Order 2698947
Section 77.400(b) of 30 C.F.R. provides that "Overhead belts
shall be guarded if the whipping action from a broken line would
be hazardous to persons below." Respondent violated this section
by assigning employees to work on a scaffold directly beneath a
running, unguarded conveyor belt.
During his inspection, the inspector asked the foreman
whether the belt was running when employees were assigned to work
on the scaffold beneath the belt and he said, "Yes, the belt was
running." Tr. 449. It was not necessary for the Government to
prove that the belt had been running when employees were on the

651

scaffold. It was sufficient to show that, had work progressed
without the intervention of the Federal irispection, the employees
would, in reasonable probability; be subjected to the hazardous
condition cited. This was a serious and unwarranted safety
hazard in violation of§ 77.400(b).
Considering all of the criteria for a civil penalty in
§ llO(i) of the Act, I find that a civil penalty of $300 is
appropriate for this violation.
CONCLUSIONS OF LAW

1:

The undersigned judge has jurisdiction in this
proceeding.
2. Respondent violated the safety standards as charged in
Orders 2698660, 2698945, 2698946, and 2698947.
ORDER
WHEREFORE IT IS ORDERED that:
1. Respondent shall pay the above civil penalties of $1,900
within 30 days of this Decision.

2. The Secretary's motion to withdraw the charge of a
violation in Order 2698948 is GRANTED, and that charge is
DISMISSED.

tV~?-~vVL

William Fauver
Administrative Law Judge

Distribution:
William T. Salzer, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
William A. Johnson, Esq., 8 East Pine Street, Washington, PA
15304 (Certified Mail)
kg

652

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

MAY 1O1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
JERRY DALE ALESHIRE,
ROY E. CHAMBERS,
CLYDE W. COLIN,
DENIS R. GILLIAM,
RICKY RAY ROE,
WILEY R. KENT,
JOHN E. NEWMAN,
Complainants

v.
WESTMORELAND COAL COMPANY,
Respondent
and
UNITED MINE WORKERS OF
AMERICA (UMWA),
Intervenor

DISCRIMINATION PROCEEDING
Docket No. WEVA 84-344-D

.

HOPE CD 84-6
Farrell No. 17 Mine

.

..
.
DECISION

Appearances:

Before:

Frederick w. Moncrief, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia for Complainants: F. Thomas Rubenstein,
Esq., Big Stone Gap, Virginia, and Thomas C. Means,
Esq., Crowell & Moring, Washington, D.C. for
Respondent: Mary Lu Jordan, Esq., Washington, D.C.,
for Intervenor, United Mine workers of America.

Judge Broderick

STATEMENT OF THE CASE
On August 2, 1984, the Secretary of Labor (Secretary)
brought this complaint under section 105{c) of the Federal Mine
Safety and Health Act (Act) on behalf of seven l; miners who
1/ The Secretary filed a motion on October 2, 1984, to remove
the name Robert L. Harmon and add the name Ricky Ray Roe to the
list of Complainants. The motion apparently has not been acted
upon. I hereby grant the motion.

653

worked as surf ace miners in the subject mine until they were
laid off on December 17, 1982. The matter was stayed after the
answer was filed, pending decisions in the case of Emery Mining
Co. v. Secretary of Labor in the 10th Circuit Court of
Appeals,and in the case of Rowe v. Peabody Coal Company, before
the Review Commission. The case was assigned to me on October 3,
1986. After the decisions in the Emery case and the Rowe v.
Peabody case, this proceeding was further continued because the
parties were attempting to stipulate as to the facts.
On
December 23, 1987, the parties filed Stipulations of Fact and
submitted the case for decision as to the question of liability
on the basis of the stipulations. The parties have agreed that
if the issue of liability is decided in Complainants' favor, they
would endeavor to stipulate on "the appropriate damages award."
The Secretary filed a Motion for Summary Decision and a
Memorandum in Support of the Motion on February 29, 1988.
Respondent filed a Cross-Motion for Summary Decision and a
Memorandum in Support thereof on April 12, 1988.
FINDINGS OF FACT
I accept the stipulations as the facts in this case.
I note
that the briefs filed disagree as to the cause of the layoff in
December 1982: the Secretary asserts that it resulted from a
disaster at the mine necessitating indefinite cessation of mining.
Respondent states that the layoff was the result of weak market
conditions which caused the mine to be idled in December 1982,
and that the disaster had occurred in November 1980. I do not
consider that a resolution of this dispute is necessary for my
decision in this case. Both of the parties state in their
memoranda that Complainant Newman had been employed as an
experienced underground miner on October 13, 1978, when 30 C.F.R.
Part 48 became effective and was therefore "grandfathered" and
did not need the training which he received to be eligible for
recall to an underground position. These facts are not included
in the stipulation, but I accept them as facts in the case.
Each of the Complainants was employed at the subject mine in
surface positions for three or more years prior to
December 17, 1982. Each had underground mining experience prior
to working on the surface, but only Complainant Newman was
working as an experienced underground miner on October 17, 1978.
On December 17, 1982, Complainants were laid off from their
surface mining. positions. After the lay off, Respondent advised
miners at a union meeting, attended by one or more of the
Complainants, that they would require new miner underground
training before they could work underground. Respondent
suggested that to improve their chances for recall, "they would

654

be well-advised" to obtain such training on their own time and at
their own expense.
In May and June 1983, Complainants obtained new miner
underground training at the Boone County Career and Technical
Center. The training was paid for by the County Board of
Education except as to Newman and Gilliam, "each of whom claim
they paid $20."
On October 21, 1983, Complainants were recalled to
Respondents Hampton No. 3 Mine in underground positions. Under
the governing labor contract, miners are entitled to be recalled
in accordance with seniority, but seniority presumes the ability
to perform the work of the awarded job, which includes having all
necessary training. As of October 21, 1983, Complainants would
have been eligible for recall to surface positions without
additional training. Except for Newman, they would not have been
eligible for recall to underground training as of October 21,
1983, had they not taken the underground training referred to
above.
On December 21, 1983, Complainants filed a complaint with
the Secretary alleging that Respondent discriminated against them
by not providing or paying them for the underground training
referred to above. They seek an order requiring Respondent to
pay them for the 40 hours which they spent taking the underground
training course.
ISSUES
1. Whether miners laid off from surface mining jobs who
obtained training while on layoff at the mine operator's
suggestion, which training is required for reemployment in
underground jobs, are entitled to compensation from the mine
operator for the time and expenses of such training after being
recalled to underground jobs?
2. Whether a miner laid off from a surface mining job who
obtained training at the mine operator's suggestion, which
training he did not require for reemployment in an underground
job, is entitled to compensation from the mine operator for the
time and expenses of such training after being recalled to an
underground job?
3. Whether the failure by a mine operator to reimburse
miners for required safety training under section 115 of the Act
is a violation of section 105{c) of the Act?

655

CONCLUSIONS OF LAW
STATUTORY OBLIGATION
Under section 115 of the Act, mine operators are required to
have an approved health and safety training program, which, among
other things, must provide that new miners having no underground
. mining experience shall receive no less than 40 hours of training
if they are to work underground. Section 115 requires also that
such training shall be provided during normal working hours, and
miners shall be paid at their normal rate of compensation while
they take such training. New miners must be paid at their
starting wage rate.
PART 48 REGULATIONS
Pursuant to the mandate of section 115, the Secretary
promulgated training and retraining regulations effective
October 13, 1978. 30 C.F.R. Part 48. Subpart A is concerned
with underground miners.
It defines a new miner as one not
employed as an underground miner on the effective date of the
rules, and who has not received training acceptable to MSHA from
an appropriate State Agency, or in accordance with the
requirments of § 48.5, within the preceding 12 months, and who
has not had at least 12 months experience working in an
underground mine during the preceding three years.
Section 48.10 repeats the requirements of § 115 of the Act
that training be provided during normal working hours and that
miners attending such training be paid at their normal rate of
compensation, which is defined as the rate of pay they would have
received had they been performing their normal work tasks.
If
the training is given at a location other than the normal place
of work, miners shall be compensated for the additional costs,
such as mileage, meals, and lodging incurred in attending the
training sessions.
The term "miner" for the purposes of §§ 48.3 through 48.10
is defined as "any person working in an underground mine and who
is engaged in the extraction and production process, or who is
regularly exposed to mine hazards, or who is a maintenance or
service worker contracted by the operator to work at the mine for
frequent or extended periods." The regulations do not refer to
laid-off miners or to applicants for underground mine employment.
EMERY
In the case of Emery Mining Corporation, 5 FMSHRC 1391
(1983), the Review Commission held (1) the policy of requiring
job applicants to have training as a qualification for employment

656

is not a per se violation of the Act; and (2) the refusal of the
mine operator to reimburse newly hired miners for the time spent
in training and costs of training, while relying on the training
to fulfill the operator's obligations under section 115, is a
violation of the Act. The 10th Circuit Court of Appeals reversed
the Commission in the case of Emery Mining Corporation v.
Secretary of Labor, 783 F.2d 155 (10th Cir. 1986). The Court
held that because the applicants for employment were not miners
as defined in the Act, they were not entitled to compensation for
the time spent or the costs incurred in the training they
received before being employed.
PEABODY AND JIM WALTER
Before the 10th Circuit decision in Emery, the Commission
issued its decisions in the Peabody Coal Co. case, 7 FMSHRC 1357
(1985) and the Jim Walter Resources case, 7 FMSHRC 1348 (1985).
In the former case, it held that Peabody's policy requiring
laid-off miners to obtain necessary training prior to rehire did
not violate section 115 of the Act. This was grounded on the
theory that laid-off individuals are not miners protected under
section 115 until they are rehired. The Commission declined to
treat laid-off miners differently for this purpose from
applicants for employment, or to interpret the requirements of
section 115 in the light of the collective bargaining contract
between the mine operator and the union. The Commission further
concluded that section 115 requires an operator to reimburse
rehired miners for the expenses of their training "if it relies
upon the prehire training of those whom it rehires to satisfy its
statutory training obligations with respect to 'new miners'."
Peabody, at 1364. Peabody had fulfilled this obligation.
In Jim
Walter (JWR), the Commission addressed the same issues.
It
repeated its determination that the operator did not violate the
Act in by-passing for hire laid-off individuals who lack required
training. It also affirmed the ALJ's decision which required JWR
to reimburse the rehired miners who had obtained such prehire
training for the time and expense of the training. The Secretary
appealed the Commission decisions that Peabody and JWR did not
violate the Act in refusing to recall laid off miners because
they lacked the required training. JWR did not appeal the
Commission decision that JWR violated the Act by refusing to
compensate recalled miners for the time and expense of training
taken while on layoff. The Court affirmed the Commission
decisions.
Brock v. Peabody Coal Co., 822 F.2d 1134 (D.C. Cir.
1987). The Court stated that "the success of the Secretary's
argument depends almost entirely on whether the individuals
passed over qualified as 'miners' under section 115 while on
layoff." Id., at 1140. The Court affirmed the Commission
holding that laid off employees were not "miners" even though
they might be "contractually entitled to employment," i.e.,

657

employees on layoff entitled to recall without reference to
training status.
In the case of Secretary/Beavers v. Kitt Energy Corporation,
8 FMSHRC 1342 (1986), Commission Judge Maurer held that a mine
operator who laid off surface miners, with seniority and the
technical ability to perform available underground jobs, solely
because they lacked the additional training required under Part
48, was in violation of the Act. On March 17, 1988, the
Commission in an open meeting voted to reverse this decision.
See 9 Mine Safety and Health Reporter, Current Report at p. 627
(March 18, 1988). The Commission decision has not been issued as
of this date.
The statute and the case law make clear (1) a mine operator
who hires an untrained 2; miner must provide training; (2) a mine
operator may hire a miner (newly hired, not on lay-off) who has
received training on his own without compensating him for the
time and expense of training; (3) "work assignments" made by an
operator based on a miner's training status are permissible,
i.e., a miner may be laid off if he lacks training required for
available positions; (4) a mine operator is not required by the
Act to provide safety training for a laid off miner who requires
such training for recall. The remaining question is whether a
mine operator is required to compensate recalled miners for
necessary safety training taken during layoff. More narrowly,
are miners covered by a labor agreement who are on layoff
entitled to different treatment under section 115 than new
applicants for employment? In the Peabody case, the Commission
declined to look to the collective bargaining agreement to
determine miners' entitlement under section 115. I find nothing
in the Act, the regulations or the case law which would permit me
to treat differently under section 115, miners laid off with
contractual recall rights and new applicants for employment.
In
Peabody the Commission held that "nothing mandates that we go
beyond the Act and the legislative history to determine whether
laid off individuals are entitled to section 115 safety training."
7 FMSHRC at 1364. Similarly, nothing mandates going beyond the
Act and legislative history to determine whether individuals
recalled from layoff are entitled to compensation for section 115
training. Neither miners on layoff nor applicants for mine
employment. are "miners" for whom the mine operator is required to
provide health and safety training, or to reimburse for the time
and expense of training taken on their own. To the extent that
this interpretation "would result in the effective elimination of
2/ In using the words training here, I am referring to the
health and safety training mandated by section 115.

658

section 115 and the total frustration of the intent of Congress"
(Secretary's brief, p. 8), the remedy, as the Court of Appeals
said in Brock v. Peabody, supra, lies with Congress.
Therefore, I conclude that miners laid off from surf ace
mining jobs who obtained training while on layoff at Respondent's
suggestion, which training was required for reemployment in
underground jobs, are not entitled to compensation from the mine
operator for the time and expenses of such training after being
recalled to underground jobs.
Because of this conclusion, it is not necessary to decide
issues 2 and 3, i.e., whether miner Newman who did not need the
training is entitled to compensation because he was misled by
Respondent into thinking he did require it, and whether a
violation of section 115 by refusing to pay compensation for
training constitutes adverse action against the miners which can
be remedied under section 105(c).
ORDER
Based on the above findings of fact and conclusions of law
IT IS ORDERED:

Cl)

The Secretary of Labor's Motion for Summary Decision is

DENIED;
(2)

Respondent's Motion for Summary Decision is GRANTED;

(3)

This proceeding is DISMISSED.

7

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a.. v~u...-..) /'rj .J/l
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['

James A. Broderick
Administrative Law Judge

Distribution:
Frederick W. Moncrief, Esq., U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd., Arlington, Va 22203 (Certified
Mail)
F. Thomas Rubenstein, Esq., P.O. Drawer A&B, Big Stone Gap, VA
24219 (Certified Mail)
Thomas C. Means, Esq., Crowell & Moring, 1001 Pennsylvania Ave.,
N.W., Washington, D.C. 20004-2505 (Certified Mail)

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th St.,
N.W., Washington, D.C. 20005 (Certified Mail)
slk
659

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

MAY 121988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 88-7-M
A.C. No. 11-02666-05501

v.
Vandalia Mine
NORTH AMERICAN SAND AND
GRAVEL CO.,
Respondent
DECISION
Appearances:

Before:

Miguel J. Carmona, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois, for
the Petitioner;
Charles w. Barenfanger, Jr., President, North
American Sand and Gravel Co., Vandalia, Illinois,
pro se.

Judge Maurer

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges respondent with a violation
of the safety regulations promulgated under the Federal Mine
Safety and Health Act, 30 u.s.c. § 801 et seq., (the Act).
After notice to the parties~ a hearing was held on the
merits at St. Louis, Missouri, on March 28, 1988.
Gene Upton, a mine inspector employed by MSHA, had occasion
on June 25, 1987, to inspect the Vandalia Mine.
On that occasion he observed a 440-volt power cable which
was being used to supply electrical power to the pea gravel
conveyor belt. This power cable had several cracks and breaks in
the outer layer of its double insulation, which allowed both
rainwater and sunlight to reach the inner insulation. There was
wet ground under the cable where it drooped down to within three
feet of the ground near the steps used to gain access to the
plant, and the cable was energized at the time the inspector saw
it.

660

The inspector issued S&S Citation No. 3058100 and cited the
respondent for a violation of 30 C.F.R. § 56.12030 which states
in its entirety:
When a potentially dangerous condition is found it
shall be corrected before equipment or wiring is
energized.
The inspector felt that because of the wet conditions under
the cable where it drooped down within three feet of the ground
and that people did travel in this area, the fact that the outer
insulation was missing in places was a potentially dangerous
condition.
I saw the cable in question at the hearing and I
agree that it is a potentially dangerous condition and is
therefore a violation of the cited standard.
I disagree, however, that this violation is a "significant
and substantial" one.
A "significant and substantial" violation is described in
section 104(d)(l) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30
C.F.R. § 814(d)(l). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove:
Cl) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a
reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, (1985) the Commission stated further as follows:

661

we have explained further that the third element
of the Mathies formula 'requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury.'
U.S. Steel Mining Co., 6 FMSHRC 1834,
1836, (August 1984). We have emphasized that, in
accordance with the language of section 104Cd)(l), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The facts of this case are to the effect that the interior
insulation on all the individual wires was still intact and in
good condition at the time of the inspector's visit. It was the
outer jacket or the double insulation which was in a deteriorated
condition.
The potential hazard involved is electrical shock, but the
only way for a person to actually receive such a shock would be
for him to come into contact directly with one or more of the
bare wires, or if there is sufficient "leakage" through the first
layer of insulation. The testimony was that the first layer of
insulation was in good condition and I likewise observed it to be
so at the hearing. That negates any possibility of a person
actually touching a bare wire and receiving an electrical shock.
The other possibility simply fails of proof. The inspector
testified at (Tr. 27):
Q. Is there any danger of electrical shock by touching
a wire like this with the insulation in this condition?
A. The -- it depends on how good the insulation is. I'm
not an electrician and I don't have the instruments to tell
me how much leakage there is through that, and that would be
the only way I could determine if there's a shock potential
there, or how much of a shock potential is by putting a
meter on it, and actually measuring the voltage.
Therefore, I find and conclude that the record in this case
establishes a nonsignif icant and substantial violation of the
cited regulation and I further conclude that a civil penalty of
$20 is appropriate.
Conclusions of Law
1.

The Commission has jurisdiction to decide this case.

662

2. Respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.12030 as alleged in Citation No.
3058100.
3. The violation was not "significant and substantial"
within the meaning of the Act.
4.

The appropriate penalty for the violation is $20.
ORDER

Citation No. 3058100 is affirmed as nonsignificant and
substantial and the respondent IS ORDERED to pay a civil penalty
of $20 to the Secretary within 30 days of the date of this
decision.

/vti~

!Ma,urer
tiative Law Judge
Distribution:

Miguel J. Carmona, Esq., Office of the Solicitor, U.S.
Department of Labor, 230 Dearborn St., 8th Floor, Chicago, IL
60604 {Certified Mail)
Charles w. Barenfanger, Jr., North American Sand and Gravel Co.,
P.O. Box 190, Vandalia, IL 62471 {Certified Mail>
slk

663

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

May 12, 1988

DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY ANO HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
JAMES E. BOWMAN,
Complainant

Docket No. WEVA 88-217-D
MORG CD 87-19
Blacksville ~o. 1 Mine

v.

CONSOLIDATION COAL COMPANY,
Respondent
ORDER APPROVING SETTLEMENT
ORDER TO COMPLY
ORDER OF DISMISSAL
Before:

Judge Merlin

The Secretary on behalf of the complainant has filed a
motion to withdraw the complaint and to dismiss this proceeding
on the grounds that a settlement has been reached with the
respondent. The settlement agreement requires the respondent to;
(1) pay the complainant $121.72 for lost wages, (2) expunge from
the personal record of the complainant all reference to the
illegally issued discipline, (3) post a notice that the
respondent will not violate section 105(c) of the Act, and (4)
pay a civil penalty of $800.
The settlement is APPROVED as in accordance with the
purposes of the Federal Mine Safety and Health Act of 1977.
Accordingly, the motion to withdraw is GRANTED and the
parties, if they have not already done so, are ORDERED to comply
with the settlement agreement, including the payment of $121.72
for lost wages and payment of an $800 civil penalty, within 30
days from the date of this decision.
It is further ORDERED that once the parties have complied
with the settlement agreement this case is DISMISSED.

-

Paul Merlin
Chief Administrative Law Judge

664

Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Mr. James E. Bowman, 16 Garfield Street, Westover, WV
(Certified Mail)

/gl

665

26505

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

MAY 131988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA},
Petitioner

CIVIL PENALTY PROCEEDINGS

.

v.

Docket No. KENT 87-40
A.C. No. 15-08382-03502 M75
Docket No. KENT 87-47
A.C. No. 15-08382-03503 M75

TRIPLE B CORPORATION,
Respondent

South Side Surface Mine
DECISION

Appearances:

efore:

G. Elaine Smith, Esq., Office of the Solicitor,
U.S. Department of ~abor, Nashville, TN, for
Petitioner;
Gary A. Branham, President, Triple B Corporation,
Prestonburg, KY, for Respondent.

Judge Fauver

These consolidated proceedings were brought by the Secretary
of Labor for civil penalties for alleged violations of safety
standards under the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et ~
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following:
FINDINGS OF FACT
Docket KENT 87-40
1. On September 30, 1986, Mine Safety and Health
Administration Inspector Andrew Reed, Jr., conducted an
inspection at South Side Surface Mine No. 1 operated by the
Martin County Coal Corporation. While conducting this.
inspection, Mr. Reed inspected equipment of the Respondent, an
independent contractor engaged in reclamation work at the site.
Citation 2776271
2.
alarm.

A Komatsu bulldozer was not equipped with a reverse

666

Order 2776272
3. A Mack truck used for rock haulage was not equipped with
an adequate braking system.
Order 2776273
4.

A Mack truck was not equipped with a reverse alarm.
Order 2776274

5.

A Mack truck was not equipped with a fire extinguisher.
Order 2776275

6. The windshield of a Mack truck contained 11 cracks
extending from the center divider and tha right side portion was
badly broken with a 4" x 6" hole near the bottom of the glass.
Order 2776276
7.

A Mack truck was not equipped with a fire extinguisher.
Order 2776277

8. Bryan Childers was observed operating a Mack truck and
had not received the required miner training prior to being
assigned work duties. He had not received any training since
being hired Con September 18, 1986) and according to his 5000.25
Form, his last training in the industry was annual refresher
training on March 29, 1985.
Order 2776278
9. A Mack truck used for rock haulage was not equipped with
an adequate braking system in that both the right front and right
rear wheel brakes were inoperative. The truck was being used on
a 17% grade.
Order 2776279
10. A Mack truck had an equipment defect in that the
driver's side rear view mirror was broken in three places near
the bottom of the mirror, causing a distorted side rear view.
Order 2776280
11.

A Komatsu loader was not equipped with a reverse alarm.
Order 2784241

12. A Komatsu loader was not equipped with a fire
extinguisher.

667

Docket KENT 87-47
Order 2784242
13. A Komatsu loader, which was equipped with a roll over
protection system, was not equipped with seat belts.
DISCUSSION WITH FURTHER FINDINGS
Respondent contends that its reclamation work was not
covered by the Act. This same issue was tried between the same
parties and decided in Secretary of Labor v. Triple B
Corporation, KENT 87-21 and KENT 87-23 (Judge's Decision, March
15, 1988). That decision controls here by res adjudicata. I
hold that Respondent's work at issue was covered by the Act.
Citation 2776271 and Order 2776273
Respondent asserts that at the time of the inspection no one
was on foot in the area of the vehicle that had no reverse alarm.
I find that this fact does not lower the degree of gravity proved
by the Secretary.
Order 2776272
Respondent contends that the cited vehicle "had enough
brakes to stop" (Tr. 12), but does not deny that both front
brakes were inoperative and the brake drums, shoes, chamber and
air line were missing from the right front wheal, and does not
deny that the air fitting was plugged off on the right and left
front wheels and that the left front wheel brakes line was
missing. I find that the brakes were detective and unsafe as
charged.
Orders 2776274, 2776276, and 2776280
Respondent contends that the purpose of a fire extinguisher
on a vehicle is to protect the vehicle and that, since the driver
can escape from the vehicle, the gravity of the violation should
be lowered to nonserious. I reject this argument. The driver
could be trapped or injuried, so that his access to a fire
extinguisher or the access of a rescuer to a fire extinguisher on
the vehicle could save the driver's life or lessen burn injuries
in a fire emergency.
In Consolidation Coal Corporation v. FMSHRC, 824 F. 2d
1071, 1085 (D.C. Cir. 1987, the court stated:
The legislative history of the Federal Mine Safety
and Health Amendments Act suggests that Congress
intended all except "technical violations" of

668

mandatory standards to be considered significant
and substantial. The 1977 amendments redesignated
§ 104(c) of the Coal Act as § 104(d) of the Mine
Act without substantive change.
In Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1, 3 (1984),
the Commission stated:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gyp~um [3 FMSHRC 822], the Secretary of Labor
must prove:
Cl> the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a
reasonably serious nature. As a practical matter, the
last two elements will often be combined in a single
showing.
[Footnote omitted.]
The fire extinguisher violations meet the above test. The
MSHA supervisor's modifications of the inspector's orders to
change gravity to a nonserious violation is inconsistent with the
evidence. I agree with the inspector's testimony and the
Secretary's contention that the violations were significant and
substantial.
Order 2776278
4. Respondent contends that the braking system on the Mack
truck was adequate. However, the right rear wheel brakes were
inoperative. The Secretary contends that the MSHA supervisor's
modification of the inspector's order to a§ 104(a) citation "is
inappropriate and should be disregarded" because the supervisor
failed to obtain information from the inspector and gave no basis
for his decision other than the conclusory statement of the
operator's representative, who was not present at the time the
order was issued. I agree with the Secretary's argument based
upon the facts shown by the inspector's testimony.
Order 2776279
Respondent does not deny that the driver's side view mirror
on the Mack truck was broken in three places near the bottom of
the mirror. Respondent challenges the gravity finding of the
inspector on the grounds that the truck driver did not complain
about the mirror and part of the mirror gave an undistorted side
view. I agree with the Secretary's position that the distortion
of part of the driver's side view, because of brakes in the
mirror, constituted a substantial and significant violation. The
fact that the driver did not complain about the mirror does not

669

alter the gravity of the violation. I agree with the Secretary's
position that the modification of the order oy MSHA Supervisor
Wilder should be disregarded as being ~ontrary to the evidence.
I accept the testimony of the inspector that the broken part of
the mirror substantially distorted the driver's side rear view
and created a substantial and significant violation.
Order 27784242
Respondent contends that seat belts were not needed because
the loader was being operated on level ground. The loader is
included in a class of vehicles C§ 77.403a) requiring rollover
protection because of a general history of such vehicles turning
over. I accept the inspector's testimony that there was a danger
of overturning and, therefore, that seat belts were required.
Respondent violated the safety standards as charged in the
following citation and orders, and the Secretary proved, by a
preponderance of the reliable evidence, the allegations of
negligence, gravity, and unwarranted violations. Considering all
of the criteria of § llOCi) of the Act for assessment of civil
penalties, I find that the following penalties are appropriate:
Violation (30 C.F.R.)
Citation
Order
Order
Order
Order
Order
Order
Order
Order
Order
Order
Order

2776271
2776272
2776273
2776274
2776275
2776276
2776277
2776278
2776279
2776280
2784241
2784242

Civil Penalty
(§ 77.410)
$ 68
(§ 77.1605(b})
98
140
C§ 77.410)
(§ 77.1109Cc)(l))
66
(§ 77.1605(a))
140
(§ 77.1109(c)(l))
66
(§ 48.26(a))
140
68
C§ 77.160(b})
(§ 77.1606(c)
114
(§ 77.410)
140
66
C§ 77.1109Cc)(l))
(§ 77.1710(i))
140
$1,246
CONCLUSIONS OF LAW

1. The undersigned judge has jurisdiction in these
proceedings.
2. Respondent violated the safety standards as charged in
the above citation and orders.
ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay the above
civil penalties of $1,246 within 30 days of this Decision.

670

(A);a~
1-MAv~
William Fauver
Administrative Law Judge
Distribution:
G. Elaine Smith, Esq., U.S. Department of Labor, Office of the
Solicitor, 2002 Richard Jones Rd., Suite 201-B, Nashville, TN
37215 (Certified Mail)
Mr. Gary A. Branham, President, Triple B Corporation, P.O. Box
428, Prestonsburg, KY 41653 (Certified Mail)

671

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

MAY 131988
WILLIAM G. BINION,
Complainant
v.

:

DISCRIMINATION PROCEEDING
Docket No. PENN 87-209-D
MSHA Case No. PITT CD 87-11

KEYSTONE COAL MINING COMPANY,
Respondent

Urling No. 2 Mine

DECISION APPROVING SETTLEMENT
AND
ORDER OF DISMISSAL
Before:

Judge Koutras
Statement of the Case

This proceeding concerns a complaint of alleged discrimination filed by the Complainant William G. Binion against the
respondent pursuant to section 105(c) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seq. The complainant
alleged that he was transferred from his--Working section to
another section out of retaliation "for my safety and health
efforts for myself and other employees." Complainant maintained
that he operated his roof-bolting machine at a safe speed,
exercising necessary precaution, but that mine management
threatened him with another change if he did not bolt faster.
The complainant filed his initial complaint with the
Secretary of Labor, Mine Safety and Health Administration (MSHA),
and upon completion of its investigation, MSHA advised the
complainant that the information received during the investigation did not establish any violation of section lOS(c) of the
Act. Thereafter, the complainant filed a pro se complaint with
the Commission, but subsequently retained counsel and the United
Mine Workers of America (UMWA) to represent him in this matter.
The case was scheduled for a hearing on the merits on
December 8, 1987, in Indiana, Pennsylvania. However, the hearing
was subsequently continued and the matter was stayed after the
parties informed me that they had mutually agreed to resolve
their differences.

672

Discussion
On April 28, 1988, Mr. Binion's counsel filed a motion to
withdraw the complaint in this matter. As grounds for the motion,
counsel has submitted a sworn statement executed by Mr. Binion on
May 2, 1988, and it states as follows:
I, WILLIAM G. BINION,, the Complainant in the
above captioned action, hereby authorize my
attorneys, District #2 Legal Counsel, to withdraw
the complaint in the above captioned case.
I have
amicably resolved this matter with my employer.
My counsel has explained my-rights, duties and
obligations relative to this matter, and I am
authorizing the withdrawal of the complaint as my
free and voluntary act.
In view of the foregoing, it would appear to me that the
parties have settled their differences and have reached an
amicable resolution of the dispute which gave rise to the filing
of the complaint in this matter. Under the circumstances, I see
no reason why the Motion to Withdraw should not be granted.
ORDER
The complainant's Motion to Withdraw his complaint IS
GRANTED, and this matter IS DISMISSED. My previously issued
Stay Order of December 3, 1987, IS TERMINATED.

~ti,~
~eo~
Kod(f1.s

~dministrative Law Judge

Distribution:
David Tulowitski, Attorney-at-Law, 603 N. Julian Street,
Ebensburg, PA 15931 (Certified Mail)
Lester Poorman, International Representative, UMWA District #2,
521 West Horner Street, Ebensburg, PA 15931 (Certified Mail)
William M. Darr, Esq., Keystone Coal Mining Company, 655 Church
Street, Indiana, PA 15701 (Certified M.ail)
/fb

673

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

MAY 171988
CHARLES H. SISK,
·complainant

v.

..

CHAROLAIS CORPORATION,
E. R. MINING, INC.,
D.B.A. as E. R. TRUCKING CO.:
Respondent

DISCRIMINATION PROCEEDING
Docket No. KENT 87-212-D
MADI CD 87-3
No. 1 Mine

ORDER OF DISMISSAL
Before: Judge Melick
Complainant requests approval to amend his Complaint by
dismissing Charolais Corporation as a party Respondent in the
captioned case. No objection has been filed to the request and
under the circumstances permission to amend is granted.
29 C.F.R. § 2700.11. Charolais Corporatia is therefore dismissed
as a party Respondent.

Distribution:
Daniel N. Thomas, J<.::sq., Thomas & Ison, P.S.C., 1302 South Main
Street, P.O. Box 673, Hopkinsville, KY 42240 (Certified Mail)
Pam Corbin, Esq., Little & Corbin, 161 Sugg Street, Madisonville,
KY 42431 (Certified Mail)
D. Patton Pelfrey, Esq., Brown, Todd & Heyburn, 1600 Citizens
Plaza, Louisville, KY 40202 (Certified Mail)
nt

674

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

MAY 171988
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHP..LF OF
WILLIAM LEE COOK,
Complainant

Docket No. SE 88-39-DM
MSHA Case No. MD 87-22
Patton Quarry

v.
PATTON ROCK PRODUCTS,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

This proceeding concerns a complaint of alleged discrimination filed by the Secretary of Labor on behalf of
William Lee Cook against the respondent pursuant to section
105(c) (2) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et seq. The complaint alleges that Mr. Cook
was discharged from his employment with the respondent
because he complained about bad brakes on a front-end loader
and threatened to refuse to operate the loader without brakes
because he believed it would be unsafe to do so.
In addition
to Mr. Cook's reinstatement, employee benefits, back pay with
interest, and the expungement of the discharge from Mr. Cook's
employment records, the Secretary requested a civil penalty
assessment of $1,200 against the respondent for a violation of
section 105(c) (1) of the Act.
The respondent filed a timely answer denying any corporate
liability and the matter was scheduled for a hearing in
Chattanooga, Tennessee on June 7, 1988. However, by motion
received on May 12, 1988, the Secretary requests approval of a
settlement executed by the parties, including Mr. Cook. The
terms of the settlement are as follows:

675

(1)
Respondent will pay to Mr. Cook the sum
of $756.35 in full and complete settlement of the
case, which represents net compensation for the
period March 7, 1987, to April 13, 1987, (5 weeks)
based on a 40 hour week at $4.50 per hour, plus
interest at the rate of 6.13% per annum.
Respondent has permanently reinstated Mr. Cook and there
is no longer any issue of reinstatement in this
case.

(2)
Respondent will expunge from the
personnel record of Mr. Cook any and all references
to his termination from its employ on March 7,
1987, and will not make any adverse comment or
recommendation concerning Mr. Cook's employment
for the period March 7, 1987, to April 13, 1987,
if any inquiries are made.
(3)
As part of the settlement, the Secretary
agrees to reduce the penalty to $500.00, taking
into account the fact that testimony as to what
actually occurred during the events which resulted
in Mr. Cook's termination would be at variance,
particularly as to the authority of the corporate
officer who discharged him, and respondent has acted
in good faith in agreeing to settle this claim.
The Secretary represents that the respondent has
agreed to pay the reduced civil penalty assessment
of $500.
Conclusion
After careful review and consideration of the settlement
terms and conditions executed by the parties in this proceeding,
including Mr. Cook, I conclude and find that it reflects a
reasonable resolution of the complaint filed by MSHA on
Mr. Cook's behalf. Since it seems clear to me that all parties
are in accord with the agreed upon disposition of the complaint,
I see no reason why it should not be approved.
I also find no
reason for not approving the reduction of the civil penalty
assessment as proposed by the Secretary.
ORDER
The Secretary's motion IS GRANTED and the settlement IS
APPROVED.
The parties ARE ORDERED to fully comply forthwith
with the terms of the settlement. The respondent IS FURTHER

676

ORDERED to pay to the Secretary a civil penalty assessment of
$500 for the violation in question, and payment is to be made
within thirty (30) days of the date of this decision and order.
Upon receipt of payment by the Secretary, and full compliance
with the terms of the settlement, this matter is dismissed.
The scheduled hearing is cancelled.

a~
/~.
~dtras
Administrative Law Judge
/// ..

Distribution:
Glenn M. Embree, James L. Stine, Esqs., Office of the Solicitor,
U.S. Department of Labor, Room 339, 1371 Peachtree Street, N.E.
Atlanta, GA 30367 (Certified Mail)
Kenneth D. Bruce, Esq., 116 East Patton Avenue, Lafayette, GA
30728 (Certified Mail)
/fb

677

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

MARY M. BALL,

MAY 181988

DISCRIMINATION PROCEEDING

Complainant

v.

Docket No. WEST 88-5-DM

FMC WYOMING CORPORATION,
and
SECRETARY OF LABOR,
MIN~ SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
and
VERNON GOMEZ, DISTRICT
MANAGER, ROCKY MOUNTAIN
DISTRICT, MINE SAFETY
AND HEALTH ADMINISTRATION,
Respondents

FMC Trona Mine

ORDER OF DISMISSAL
Before:

Judge Broderick

On May 16, 1988, Complainant filed a motion to dismiss
this proceeding, based on a letter from counsel for MSHA
to counsel for Complainant, stating that the Administrator
for Metal and Non-metal Safety and Health, MSHA, would advise
the District Managers that before complaint correspondence
is forwarded to state agencies, the forwarding official should
confirm that state agency will keep the names of miner
complainants confidential. The letter above referred to is
made part of the record in this case.
Premises considered, the motion is GRANTED, and this
proceeding is DISMISSED.
'

j

/}

/

; ..

>~ ~":_,,' f'&/(ll,,v? t/&
, I

. ·

James A. Broderick
Administrative Law Judge

Distribution:
J. Davitt McAteer, Esq., Occupational S&H Law Ctr., 1536 16th St.,
N.W., Washington, D.C. 20036 (Certified Mail)
James Holtkamp, Esq., Vancott, Bagley, Cornwall & McCarthy, 50 S.
Main, Suite 1600, Salt Lake City, UT 84145 (Certified Mail)
Thomas Mascolino, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
slk
678

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

M~'< 18\988
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR, MSHA
on behalf of
HARRY THOMAS_,
Petitioner

Docket No. KENT 88-37-D
BARB CD 87-51

v.

No. 37 Mine

ARCH OF KENTUCKY, INC.,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

This case is before me upon a complaint alleging discrimination
against a miner under section 105(c) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. 801, et~ The parties have filed
a motion to approve a settlement agreement and to dismiss the case.
I have considered the representations and documentation submitted
and I conclude that the proffered settlement is consistent with
the purposes of the statute.
ORDER
WHEREFORE IT IS ORDERED that the motion for approval of
settlement is GRANTED and Respondent shall pay the approved
compensation to Harvey Thomas in the amount of $6,151.02 within
30 days of this Decision. Upon such payment this proceeding is
DISMISSED.

W~?rMAv,,._
William Fauver
Administrative Law Judge
Distribution:
W.F. Taylor, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
R. Henry Moore, Esq., Professional Corporation, 57th Floor,
600 Grant Street, Pittsburgh, PA 15219 (Certified Mail)

kg

679

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

May 23, 1988

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

Docket No. CENT 88-29
A. C. No. 41-02632-03509 DB3

v.
Martin Lake Strip Mine
H. B. ZACHRY COMPANY,
Respondent
DECISION
Appearances:

Jerome Kearney, Esq., Office of the Solicitor, U.S.
Department of Labor, Dallas, Texas for Petitioner;
Richard L. Reed, Esq., Johnston, Ralph, Reed &
Watt, San Antonio, Texas for Respondent

Before: Judge Melick
This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section lOSCd) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et. seq., the "Act." The Secretary charged the H. B. Zachry
Company (Zachry) with three violations of mandatory standards
following an investigation by the Federal Mine Safety and Health
Administration CMSHA) of a fatal accident at the Texas Utilities
Mining Company's Martin Lake Strip Mine on December 23, 1986.
Zachry thereafter filed a Motion for Summary Decision pursuant to
Commission Rule 64, 29 C.F.R. § 2700.64 and a preliminary hearing
was held limited, at Respondent's request, to that motion.
Zachry argues that it is not subject to the Act because it
did not have a continuing presence at a "mine" as defined in the
Act and that it was not an "independent contractor" within the
scope of the Act while performing repairs outside the bucket
repair shop area. It further argues that its repair services
were in any event "de minimis" and, therefore, under the
principles set forth in Old Dominion Power Co. v. Donovan, 772
F.2d 92 (4th Cir. 1985) it was not subject to the Act. For the
reasons that follow I find the contentions to be without merit.
Section 3(h)(l) of the Act reads in part as follows:
"Coal or other mine" means CA) an area of land from
which minerals are extracted in nonliquid form

680

(B) private ways and roads appurtenant to such area,
and (C) lands, excavations ••• and workings,
structures, facilities, equipment, machines, tools, or
other property •• used in, or to be used in, or
resulting from, the work of extracting such miaerals
from their natural deposits in nonliquid form •••
This definition, while not without bounds, is expansive and
is to be interpreted broadly. Secretary v. u. S. Steel Mining
Inc., 10 FMSHRC 146 (1988); Dilip K. Paul v. P.B.-KBB Inc.
7 FMSHRC 1784 (1985), aff'd sub. nom. Dilip K. Paul v. FMSHRC,
812 F.2d 717 (DC Cir. 1987), cert. denied 107 s. Ct. 3269 (1987).
The evidence in this case shows that Zachry maintains a
repair shop and repair yard at the Texas Utilities Mining
Company's (TUMCO) Martin Lake Strip Mine. According to Ronald
Goodwin, project manager for Zachry, Zachry had contracted with
TUMCO to perform repair work at its mine under which TUMCO
directs what is to be done and pays Zachry at an hourly rate to
complete the job. Goodwin acknowledged that Zachry keeps 6 to 7
employees at the repair shop on a full-time, 40-hour-work-week
basis. According to Goodwin the Zachry employees spend 90
percent of the time repairing dragline buckets at the repair yard
but occasionally go to the pit areas to work at the draglines.
These employees also operate forklifts or "cherry pickers" around
the repair shop to lift parts or equipment necessary to make
repairs.
Zachry uses its own forklift, and welding and hand
tools.
MSHA Inspector Donald Summers testified that the Martin Lake
Strip Mine had been under his inspection area for nine years and
that Zachry had been operating there for about the same period.
Zachry was primarily responsible for repairs on the dragline
bucket but also performed work on bulldozers, and haulers and
"whatever else that the operator deems necessary for them to do".
He noted that the dragline bucket is an integral part of the
mining process and was used to remove the overburden from the
lignite ore. Summers observed that Zachry personnel also
performed repair work at the mine pit, the crusher area and the
silo area of the mine.
According to Summers the shop area where most of zachry's
work is performed is not physically separated from any other part
of the mine but is located between the haulage road and the mine
railroad to the north of the crusher. This is approximately 60
to 80 feet from the mine haulage road, 40 to 60 feet from the
mine railroad, 800 feet from the crusher area 3.nd 600 feet from
the fuel truck stop.

681

Within this framework of evidence it is clear that Zachry
was indeed an "independent contractor" performing repair work on
a daily basis at the Martin Lake Strip Mine and that its services
were accordingly not "de minimis" within the meaning of Old
Dominion Power Company-,-supra.
~~
Zachry's other arguments--that it was not "properly
notified" that the citations would be enforced and that the
Secretary failed to set forth sufficient reasons for her special
assessment--are also without merit. Neither allega ion has an
undisputed factual basis nor legal merit. The Moti n for Summary
Decision is accordingly denied.

Gary Mel
Ad.minis
(703) 7
Distribution:
Jerome T. Kearney, Esq., U.S. Department of Labor, Office of the
Solicitor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Richard L. Reed, Esq., Johnston, Ralph, Reed & Watt, 2600 Tower
Life Building, San Antonio, TX 78205-3107 (Certified Mail)
nt

682

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

MAY 2 51988
KENNETH J. PEDERSEN,
Complainant

DISCRIMINATION PROCEEDING

.

v.
DARMAC ASSOCIATES CORP.,
Respondent

Docket No. PENN 88-58-D
PITT CD 87-17

ORDER OF DISMISSAL
Before:

Judge Weisberger

On May 6, 1988, Respondent filed a Motion to Dismiss
Complaint's complaint on the ground that his claims has been
resolved in the settlement of a related proceeding before the
National Labor Relations Board. In its Motion Respondent alleged
that the Complainant consented to this Motion. On May 6, 1988,
the Complainant filed a signed statement in which he indicated as
follows "Based upon a resolution of all outstanding claims
arising from discharge from DARMAC Associates Corp., I hereby
wish to withdraw my discrimination complaint and the appeal
pending before you."
Therefore, in the interest of justice, the complaint herein
is DISMISSED, and this case is DISMISSED pursuant to 29 C.F.R.
§ 2700.11.

Avram Weisberger
Administrative Law Judge
Distribution:
Mr. Kenneth J. Pedersen, Box 206, R. D. 1, Barnesboro, PA 15714
(Certified Mail)
Stanley R. Geary, Esq., Rose, Schmidt, Hasley & DiSalle,
900 Oliver Building, Pittsburgh, PA 15222-5369 (Certified Mail)
dcp

683

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

MAY 261988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 88-19-M
A.C. No. 41-03055-05506

v.
CEN-TEX READY MIX CONCRETE,
COMPANY, INCORPORATED,
Respondent

Docket No. CENT 88-41-M
A. C. No. 41-03055-05507
Lampasas Quarry

DECISION APPROVING SETTLEMENT
Appearances:

Before:

Mary E. Witherow, Esq., U.S. Department of
Labor, Office of the Solicitor, Dallas, Texas
for Petitioner;
John D. Austin, Esq., Arter & Haden,
Washington, D.C. for Respondent.

Judge Melick

These cases are before me upon petitions for assessment
of civil penalty under Section 105(d} of the Federal Mine
Safety and Health Act of 1977 (the Act). Petitioner has
filed an original and an amended motion to approve a
settlement agreement proposing a reduction in penalty from
$10,957 to $6,957.
I have considered the representations
and documentation submitted in these cases, and while I do
not accept Respondent's claim that an independent contractor
was responsible for several of the violations, nevertheless
conclude that the proffered settlement is appropriate under
the criteria set forth in Section llOCi> of the Act.
WHEREFORE, the motion for approval of\ settlement is
GRANTED, and it is ORDERED that Respondenti\pay penalti\;·s of
$6,957 within 30 days of this ord •
\~
/
~ J
t
I

~/ ~J~/\/\11..~):\___

Gary Mel ck
.
Administ tive La Judge
C703 > 75Gn6261
\ \
Distribution:

\\
!

\ ...., \

Mary E. Witherow, Esq., Office of the Solicitor, U.S.
Department of Labor, 525 South Griffin Street, Suite 501,
Dallas, TX 75202 (Certified Mail)
John D. Austin, Esq., Arter and Hadden, 1919 Pennsylvania
Ave., N.W., Suite 400, Washington, D.C. 20006 (Certified
Mail)
nt
684

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

May 26, 1988

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 88-76
A. C. No. 46-01454-03725
Pursglove No. 15 Mine

v.
CONSOLIDATION COAL COMPANY,
Respondent
CONSOLIDATION COAL COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. WEVA 88-4-R
Order No. 2903242; 9/8/87

v.

Pursglove No. 15 Mine

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

Mine TD 46-01454

DECISION
ORDER OF DISMISSAL
Appearances:

Anita O. Eve, Esq., Office of the Solicitor,
U. S. Department of Labor, Pittsburgh,
Pennsylvania, for Petitioner.

Before:

Judge Merlin

These cases are a petition for the assessment of a civil
penalty filed by the Secretary of Labor against Consolidation
Coal Company, and the accompanying notice of contest filed by the
operator. At the hearing, the Solicitor moved to withdraw the
petition and have the notice of contest dismissed on the grounds
that the subject citation was vacated by MSHA. On the record the
Solicitor's motion to withdraw was granted. This hearing took
place at the time other cases involving the parties were heard on
the merits.

685

ORDER

The order of dismissal rendered from the bench is hereby
AFFIRMED and these cases are DISMISSED.

= p~

Paul Merlin
Chief Administrative Law Judge

Distribution:
Anita D. Eve, Esq., Office of the Solicitor, U. S. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street,
Pittsburgh, PA 15241 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
UMWA, 900 15th Street, N.W., Washington, OC
Mai 1 )

20005

(Certified

Lawrence Beeman, Director, Office of Assessments, U. S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
(Handcarried)

I gl

686

22203

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

MAY 311988
CEN-TEX READY MIX CONCRETE
COMPANY, INCORPORATED,
Contestant

CONTEST PROCEEDINGS

.

v.

.
.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Respondent

.
.
.
.
..
:

.
:

Docket No. CENT 87-83-RM
Citation No. 28"46001; 6/2/87
Docket No. CENT 87-84-RM
Citation No. 284602; 6/2/87
Docket No. CENT 87-85-RM
Citation No. 2846003; 6/2/87
Docket No. CENT 87-86-RM
Citation No. 2868356; 6/2/87
Docket No. CENT 87-87-RM
Order No. 2868356; 6/2/87
Docket No. CENT 87-88-RM
Citation No. 2868357; 6/2/87
Docket No. CENT 87-89-RM
Citation No. 2868358; 6/2/87
Docket No. CENT 87-90-RM
Citation No. 2868471; 6/2/87

:

.

Docket No. CENT 87-91-RM
Citation No. 2868473; 6/2/87
Lampasas Quarry
Mine I.D. No. 41-03055

687

ORDER OF DISMISSAL
Appearances:

Before:

Mary E. Witherow, Esq., U.S. Department of
Labor, Office of the Solicitor, Dallas, Texas
for Petitioner~
;
John D. Austin, Esq., Arter & Haden,
Washington, D.C. for Respondent.

Judge Melick

Contestant has requested to withdraw its Contests in the
captioned cases in connection with a settlement agreement
reached in the related civil penalty proceedings. Under the
circumstances herein, permission to withdraw is granted.
29
C.F.R. § 2700.11. These cases are therefore. ismissed.
;
I

CL.1
j

I
/il~--~ _L
_1

G~ry Meli' k

\
Administnative aw Judge
1
(703) 751t6261 .J
;;

Distribution:

John D. Austin, Esq., Arter and Hadden, 1919 Pennsylvania
Ave., N.W., Suite 400, Washington, D.C.
20006 (Certified
Mail)
Mary E. Witherow, Esq., Office of the Solicitor, U.S.
Department of Labor, 525 South Griffin Street, Suite 501,
Dallas, TX 75202 (Certified Mail)
nt

688

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

May 20, 1988
EMERY MINING CORPORATION
AND/OR UTAH POWER & LIGHT
COMPANY,
Contestant

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Respondent
and
UNITED MINE WORKERS OF
AMERICA CUMWA) ,
Intervenor
Docket No. WEST 87-155-R
Citation 2844811; 3/24/87
Docket No. WEST 87-156-R
Order 2844813; 3/24/87
Docket No. WEST 87-157-R
Order 2844815; 3/24/87
Docket No. WEST 87-158-R
Citation 2844816; 3/24/87

.
..
.
.

.
..

Docket No. WEST 87-161-R
Order 2844823; 3/24/87
Docket No. WEST 87-163-R
Citation 2844826; 3/24/87

.
.
.

Docket No. WEST 87-132-R
Order 2844488; 3/24/87
Docket No. WEST 87-133-R
Order 2844489; 3/24/87

Docket No. WEST 87-135-R
Citation 2848891; 3/24/87
Docket No. WEST 87-136-R
Citation 2844492; 3/24/87
Docket No. WEST 87-137-R
Citation 2844493; 3/24/87
Docket No. WEST 87-144-R
Order 2844795; 3/24/87
Docket No. WEST 87-145-R
Order 2844796; 3/24/87

.

Docket No. WEST 87-146-R
Order 2844798; 3/24/87
Docket No. WEST 87-147-R
Order 2844800; 3/24/87

Docket No. WEST 87-244-R
Citation 2844830; 8/13/87

Docket No. WEST 87-246-R
Citation 2844832; 8/13/87

Docket No. WEST 87-131-R
Order 2844486; 3/24/87

...

Docket No. WEST 87-243-R
Citation 2844828; 8/13/87

Docket No. WEST 87-245-R
Citation 2844831; 8/13/87

Docket No. WEST 87-130-R
Citation 2844485; 3/24/87

Docket No. WEST 87-134-R
Citation 2844490; 3/24/87

Docket No. WEST 87-159-R
Citation 2844817; 3/24/87
Docket No. WEST 87-160-R
Order 2844822; 3/24/87

CONTEST PROCEEDINGS

Docket No. WEST 87-150-R
Order 2844805; 3/24/87

.

Docket No. WEST 87-152-R
Order 2844807; 3/24/87
Docket No. WEST 87-153-R
Order 2844808; 3/24/87

Docket No. WEST 87-247-R
Citation 2844833; 8/13/87
Docket No. WEST 87-248-R
Citation 2844835; 8/13/87
Docket No. WEST 87-249-R
Citation 2844837; 8/13/87

089

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

CIVIL PENALTY PROCEEDINGS

.
..

Docket No. WEST 87-208
A.C. No. 42-00080-03578
Docket No. WEST 87-209
A.C. No. 42-00080-03579

v.

Docket No. WEST 88-25
A.C. No. 42-00080-03584

EMERY MINING CORPORATION,
UTAH POWER & LIGHT COMPANY,
Respondent
and
UNITED MINE WORKERS OF
AMERICA ( UMWA) ,
Intervenor

Wilberg Mine

.
ORDER

The matter at issue involves a motion in limine filed by
Emery Mining Company, (EMC), to exclude as evidence a document
entitled "Report of Investigation, Underground Coal Mine Fire,
Wilberg Mine, I.D. No. 42-00080, Emery Mining Corporation,
Orangeville, Emery County, Utah, December 19, 1984", hereafter
referred to as "Wilberg Mine Fire Report" or "Report".
The Secretary and Emery have filed briefs in support of
their positions.
The admissibility of the Report was set for oral argument
but in the interest of informed litigation planning the parties
waived oral arguments and submitted the issues.
As a foundational matter the parties also stipulated that
Donald W. Huntley, a witness offered by t.he Secretary, would
testify and identify the Wilberg Mine Fire Report as the document
prepared by the Secretary. Further, the document is the final
and official MSHA report on the fire and that it was released on
August 7, 1987.
The abstract of the report indicates that it deals with the
Wilberg mine fire that occurred on December 19, 1984. The
authors are identified as Cavanaugh, Denning, Huntley, Oakes and
Painter. The originating office is that of the Administrator,
Coal Mine Safety and Health, 4015 Wilson Boulevard, Arlington,
Virginia 22203.
The table of contents of the report (omitting page
references) reads as follows:

690

ABSTRACT
GENERAL INFORMATION ·
Mining Methods
Mine Inspections
Roof Support
ventilation
Combustible Material and Rock Dusting
Electricity
Fire Protection and Emergency Procedures
Designated Escapeways
Explosives
Transportation and Haulage
Communications
Oil Wells and Gas Wells
Smoking
Mine Rescue and Self-Rescuers
Identification Check System
Training Program
Emergency Medical Assistance
Illumination
Mine Drainage System
FIRE, FIRE FIGHTING, SEARCH AND RESCUE ATTEMPTS,
AND SEALING OF THE MINE
Fire
Activities Prior to the Fire
Discovery of the Fire
Activ1ties on the 5th Right Section and Escape
of only survivor
Mine Evacuation and Notification of Mine Emergency
Personnel
Activities of MSHA Personnel
Fire Fighting
Initial Fire Fighting Activities
Restoration of Water and Additional Water Problems
Fire Fighting Activities and Advance of the Fire
Search and Rescue Attempts
Initial Explorations
Mine Rescue Team Response
Sealing of the Mine
RECOVERY AND INVESTIGATION
Recovery
Recovery of the Mine
Recovery Entries
Recovery of the Fire Area
Investigation of the Accident
Participants
Sworn Statements
Underground Investigation

691

Extensive Testing and Involvement of Experts
and Specialists
Independent Expert Analysis
DISCUSSION AND EVALUATION
Longwall Panel Development
Ventilation of 5th Right
Ventilation Control devices for 5th Right
Escapeways and Travelways
Escapeways
5th Right Return
Bleeder Entries
Fire Fighting and Evacuation Training
Products of the Fire
Contaminates From the Fire
Mine Equipment and Substances
Carbon Monoxide, oxygen, and Carbon Dioxide
Carbon and Soot
Self-Rescuers - Location and Use
Self-Contained Self-Rescuers
Filter Self-Rescuers
Use of Rescue Devices by the Victims
Electricity
Examination and Maintenance of Electric Equipment
Location of the Source of Fire
Location of Fire when First Observed
Fire Spread in the Direction of Airflow
Burn Pattern of the Fire
Cable Damage
Energized Equipment
Source of Fire - Air Compressor
Underground Use of Air Compressors
Installation and Ventilation - Air Compressor Station
Examination and Maintenance of 5th Right Air Compressor
History of 5th Right Air Compressor
Recovery of the Air Compressor
Air Compressor Operating While Flames Present
Indications of Sudden Over-Pressure
Evidence of Localized High Temperatures
Oil Used in 5th Right Air Compressor - An Accelerant
Electrical Deficiencies - Over-Temperature Safety
Switch and On/Off Switch
Other Potential Fire Sources Considered by MSHA
Spontaneous Combustion
Smoking Articles
Diesel Equipment
Arson or Sabotage
Electrical Circuits and Equipment
No. 4 Entry - High-Voltage Circuits and Equipment
High-Voltage Cable
Belt Drive Power Center

692

Protective Switchgear
No. 4 Entry - Low-Voltage Circuits and Equipment
Roof Drill Cable and Satellite Pump Cable
Air Compressor Cable
Motor Starter Cable
EMC Source of Fire Scenario
Belt Entry - Low-Voltage Circuits and Equipment
Belt Drive Motor Starter
Belt Drive Motor Cables and Electric Enclosure Cable
Belt Control Cables
Belt Take-Up and Power Cable
Super 500 and Protective Line Starter
5th Right Belt Conveyor
Belt Fire Detection and Fire Suppression
Fire Detection System
Fire Suppression System
CONTRIBUTORY VIOLATIONS AND MSHA ACTIONS
Contributory Violations
Actions Taken by MSHA to Reduce the Likelihood of Similar
Occurrences
CONCLUSION
Conclusion
Appendix A
Appendix B
Appendix c
Appendix D
Appendix E
Appendix F
Appendix G
Appendix H
Appendix I
Appendix J
Appendix K
Appendix L
Appendix M
Appendix N

APPENDICES
Victim Data Sheets
Rescue Team Members Who Participated in the
Rescue and Recovery Operation
Persons Who Participated in the Investigation
Persons Who Provided Sworn Statements During
the Investigation
Mine Fan Pressure Recording Chart Dated
12/19/84
Copy of Kenneth Blake's Handwritten Statement
Dated 12/19/84
Wilberg Mine Fire: Contamination of the 5th
Right Section Report
Wilberg Mine Fire: Cause, Location, and Initial
Development by John Nagy
Wilberg Mine Disaster Self-Rescuer Evaluation
Ingersoll-Rand Models SM, 7M, and 9M Air Compressor Operating and Maintenance Manual
PTL-Inspectorate, Inc., Report of Testing and
Analysis of Air Compressor Parts from Wilberg
Mine Fire
Tests of similar Air Compressor
Calculated Temperatures Inside Air Compressor
Station
Wilberg Mine Fire Investigation: Lubricating
Oil Samples Tests

693

Appendix 0
Appendix p
Appendix Q
Appendix R
Appendix

s

Appendix T
Appendix u
Appendix v
Appendix w
Appendix x
Appendix y
Appendix z
Appendix Zl

Appendix Z2
Appendix Z3
Appendix Z4
Appendix ZS

Detailed Account of Recovery Activities
Test Results, Evaluation, and Discussion of
Potential Electrical Sources of Fire
Electrical Wiring Diagrams and UP&L/CRSP Power
Report
Test and Evaluation of Fire Detection and Fire
Suppression Systems
Test and Evaluation of Mine Communication
System
Reports Evaluating the EMC Source of Fire
Scenario
Selected Photographs Taken During the Investigation
Copies of the Contributory Citations and Orders
Issued as a Result of the Investigation
Mine Map - Entire Mine
Mine Map - 5th Right to 8th Right Panels and
Ventilating Air Current Directions
Mine Map Showing Location of Detailed Information Maps
Detailed Information Mine Maps
Mine Map (Detail A) - Detailed Information of
fire fighting activities and spread of fire in
1st North between crosscuts 37 and 43, as
gathered by the investigation team
Mine Map (Detail B) - Information of the
initial fire area in 1st North, as gathered by
the investigation team
Mine Map (Detail C) - Detailed information of
5th Right section between crosscuts 2 and 7, as
gathered by the investigation team
Mine Map (Detail D) - Detailed information of
5th Right section between crosscuts 8 and 21,
as gathered by the investigation team
Mine Map (Detail E) - Detailed information of
5th Right section between crosscuts 20 and 23,
as gathered by the investigation team

Appendix Z6

Mine Map (Detail F) - Detailed information of
5th Right section between shields 20 and 115,
as gathered by the investigation team
Appendix Z7 Mine Map (Detail G) - Detailed information of
5th Right return between crosscuts 18 and 23,
_as gathered by the investigation team
Appendix Z8 Mine Map (Detail H) - Detailed information of
bleeder entry for 5th Right section between 6th
and 7th Rights, as gathered by the
investigation team.

694

Discussion and Evaluation of Report
The Commission has previously ruled that properly admitted
hearsay testimony, and the reasonable inferences drawn from it,
may constitute substantial evidence if the hearsay testimony is
surrounded by adequate indicia of probativeness and trustworthiness.
It is accordingly necessary to explore the crucial issue
of trustworthiness to avoid unfairness to Emery and UP&L at an
evidentiary hearing. Mid-Continent Resources, Inc., 6 FMSHRC Br
12n. 7, aff'd, 689 F.2d 632 (6th Cir. 1982), cert denied,
U.S.
, 77 L.Ed. 2d 299 (1983); Richardson v:--Ferales, 402 U.S.
389, (1971); Commission Rule 60(a), 29 C.F.R. § 2700.GO(a). To
determine such issues it is necessary to review in detail the
proffered exhibit.
Basically, the Report is a characterization of the events of
the Wilberg Fire.
It focuses on MSHA's enforcement actions regarding the alleged regulatory violations now in dispute and
pending for a hearing. For example, see pages 88-92 of the
Report which summarize the severity of the fire and specify
alleged contributory violations of the Mine Act and implementing
MSHA regulations. The MSHA officials who signed the citations
and orders (James E. Kirk and Lawrence J. Ganser) are listed in
Appendix c of the Report as persons who participated in the investigation. MSHA's dual roles both as author of the report and
as regulator are thus inextricably connected. Thus, I believe
the Secretary's Report is at the opposite end of the reliability
spectrum from the routine medical reports prepared by independent
physicians deemed admissible by the Supreme Court in Richardson
v. Perales, supra.
Further in support of the view that the exhibit should be
excluded I find the Report is a wealth of factual and legal
conclusions simply stated but without any apparent foundation.
For example, the GENERAL INFORMATION l; section contains certain
detail relating to Emery, its principal officers and mine management and it deals with the history of the mine. The section has
19 subparts. A reading of these subparts shows they should not
be received in evidence without further foundation.
For example,
DESIGNATED ESCAPEWAYS ~/ reads as follows:
Generally, the two designated escapeways from working
sections to the surface were the diesel roadway (intake)
1/

2/

Pages 1-7.
Page 5.

695

and the belt conveyor entries. The escapeways were parallel
and adjacent in the 1st North areas of the mine. Concrete
block stoppings, aluminum overcasts and material doors were
used to separate the two escapeways in the 1st North area.
Ladders or ramps were provided at overcasts to facilitate
travel over these structures. There were deficiencies in
both the route and condition of these escapeways, details
of which are discussed in other parts of the report.
Needless to say the deficiencies, if any, in the escapeways
are contested issues in WEST 87-133-R, WEST 87-157-R, WEST
87-163-R and in penalty case WEST 87-208.
Further, the subpart dealing with SMOKING~/ provides as
follows:
EMC had not submitted to MSHA a search program to ensure
that smoking articles were not taken into the mine. A
search program had been submitted by Peabody Coal Company
and approved by MSHA on May 8, 1974, but EMC had not
formally adopted the program. Records indicating that
searches for smoking articles were being made were contained in a book on the surface; however, sworn statements
from several miners indicated that they had not been searched for several months.
Again, these are contested issues in WEST 87-156-R and in
the penalty case WEST 87-209.
Further, the subpart dealing with a TRAINING PROGRAM~/
reads as follows:
EMC's training and retraining plan, which was submitted
in accordance with 30 CFR Part 48, was approved by MSHA
on April 28, 1983. According to sworn statements, instruction was being given in accordance with this plan.
However, the SCSR training was not adequate and is discussed in other parts of this report.
Again, these issues are contested in WEST 87-134-R and the
penalty case, WEST 87-208.
Further, and by way of illustration, it is apparent that a
closely contested issue, both legally and factually, focuses on
the source of the fire.
The Report deals extensively with

3/
4/

Page 6.
Page 7.

696

MSHA's analysis of how the fire started 5;, considers and
eliminates other potential sources ~/ and reviews the EMC
version. ~/
These assertions may or may not be true but credibility
issues abound in the case.
It is the judge's vlew that the hearing such as involved
here, conducted under the Administrative Procedure Act, en~itles
mine operators to conduct such cross-examination "as may be required for a full and true disclosure of the facts." 5 u.s.c.
§ 556.
Hearing procedures under the Act must comport with
procedural due process and be fundamentally fair.
Southern Ohio
Coal Co. v. Donovan, 774 F.2d 693 (6th Cir. 1985). See also
Calhoun v. Bailar, 626 F.2d 145, 148 (9th Cir. 1980).
The Secretary contends the Report is admissible because it
is a public report investigated and issued under Section 103 of
the Act. ~/
I agree the Secretary certainly has the statutory authority
to disseminate information relating to the causes of accidents
and disasters, but the trustworthiness limitation on its
admissibility in an administrative hearing has been expressly
articulated by the Supreme Court in Richardson v. Perales, 402
U.S. at 403-405.
In addition, while the Secretary may
disseminate information to the public his posture here is
substantially different in that in these proceedings he is
seeking substantial monetary penalties against Emery and UP&L.
I agree with the case law cited by the Secretary that an
investigative report prepared by a government agency pursuant to

5/

6/
7/

8/

Page 56-68.
Page 68.
Page 79-80.
Section 103 provides in relevant part:
INSPECTIONS, INVESTIGATIONS, AND RECORDKEEPING

SEC. 103. (a) Authorized representatives of the Secretary of the
Secretary of Health, Education, and Welfare shall make frequent
inspections and investigations in coal or other mines each year
for the purpose of (1) obtaining, utilizing, and disseminating
information relating to health and safety conditions, the causes
of accidents, and the causes of diseases and physical impairments
originating in such mines, (2) gathering information with respect
to mandatory health or safety standards, (3) determining whether
an imminent danger exists, and (4) determining whether there is
compliance with the mandatory health or safety standards or with
any citation, order, or decision issued under this title or other
requirements of this Act. •
(emphasis added).
697

law creates a presumption of a admissibility. However, often
this presumption of trustworthiness is rebutted on the basis of
factors which are present in this case. For example, in Miller
v. Caterpillar Tractor Co., 697 F.2d 141, (6th Cir. 1983) the
Court observed that the investigative report which was refused
admission was prepared by [the] ••• United States Bureau of
Mines, ~ursuant to authority vested by statute, 30 u.s.c. §§ 3and 5. I
The fact that the investigative report in Miller was
prepared pursuant to a duty imposed by law was the beginning, not
the end, of the trustworthiness analysis. In Miller, the Court
excluded the Bureau of Mines report relying on a determination of
untrustworthiness.
Miller is now reviewed in detail since it illustrates some
of the issues that arose in that case. We will consider each of
the six factual determinations made by the trial court in Miller
to determine a lack of trustworthiness.
First, the investigation commenced approximately three days
after the accident occurred. The writer does not consider that
the time lapse is a factor in the Wilberg Fire Report. The fire
commenced December 19, 1984 and MSHA's personnel were present at
the scene that day.

30 u.s.c. § 3 provides, in part:
It shall be the province and duty of the Bureau of Mines, subject
to the approval of the Secretary of the Interior, to conduct
inquiries and scientific and technologic investigations
concerning mining, and the preparation, treatment, and
utilization of mineral substances with a view to improving health
conditions, and increasing safety • • • •
(emphasis added)

~/

30

u.s.c. § 5 provides:

The Director of the Bureau of Mines shall prepare and publish,
subject to the direction of the Secretary of the Interior, under
the appropriations made from time to time by Congress, reports of
inquiries and investigations, with appropriate recommendations of
the bureau, concerning the nature, causes, and prevention of
accidents, and the improvement of conditions, methods, and
equipment, with·special reference to health, safety, and prevention of waste in the mining, quarrying, metallurgical, and
other mineral industries; the use of explosives and electricity,
safety methods and appliances, and rescue and first-aid work in
said industries; the causes and prevention of mine fires; and
other subjects included under the provisions of sections 1, 3,
and 5 to 7 of this title.
(emphasis added)

698

The second factor in Miller was that "the author of the
report possessed no first hand knowledge of the incident".
In
the instant case it is not facially shown what knowledge the
authors had concerning the fire.
The third factor is that "the author of the report relied
upon information received from various other persons". This
element is apparent from the context of the Report.
Fourth, "the sources of information were suspect as to
hearsay". While hearsay is admissible the hearsay here no doubt
forms bases that are supportive of MSHA's position.
Fifth, Miller's author was a mining engineer and was not
facially qualified to render opinions and conclusions relating to
mechanical operations and/or failures. The writer finds this
facet is most troublesome in this case. The only reference to
the qualifications of the experts and specialists appears in the
Report. 10/ Initially, the Report furnished a broad umbrella for
the experts and specialists. It reads:
Extensive Testing and Involvement of Experts
and Specialists
The underground investigation consisted of detailed examination of the affected areas of the mine, particularly
the accident area to determine the origin of the fire and
the circumstances surrounding it. Extensive evidence was
gathered and equipment was tested. All of the information
and data was throughly analyzed. The investigation was a
painstaking process which involved many experts and specialists from the various segments of MSHA. Other government entities and the private sector were also involved.
A structured analysis (fault tree) was conducted and consisted of potential sources based on examinations and
laboratory test results, analysis of sworn statements, and
other physical factors and phenomena of the mine fire.
Special laboratory services from the FBI, the Bureau of
Mines, and MSHA Technical Support were obtained for the
expert examination of many important items.
Further, concerning an independent expert the Report reads:
Independent Expert Analysis
MSHA engaged John Nagy as a consultant to perform an
independent study and analysis of the Wilberg fire. Mr.
Nagy is a renowned mine expert, having spent his entire
10/

Page 28, 29.

699

42-year career, most of it with the Bureau of Mines, researching and investigating mine fires and explosions.
Mr. Nagy's report of his findings can be found in Appendix
H.
The services of PTL-Inspectorate, Inc. CPTL) were also
engaged to perform tests and analysis on critical compressor
parts. Their independent opinions and conclusions are
discussed in the Discussion and Evaluation section of
this report. PTL's test results can be found in Appendix K.
John Nagy may well be a "renowned mine expert" but his
expertise is not shown on page 29 of the Report, nor in his
findings in Appendix H.
Sixth, in Miller the report "included a conclusion as to the
cause of an accident which was not independently verifiable".
In this case the Report contains a wealth of conclusions not independently verifible. See also McKennon v. Skil Corporation,
638 F.2d 270, 278 Clst Cir. 1981), a products liability case,
where the Court excluded as untrustworthy [under Rule 803(8),
FRE] an accident report prepared by the Consumer Product Safety
Commission.
The Secretary, in support of his position on admissibility
and trustworthiness cites Richardson v. Perales, supra, as well
as In Re Japanese Electronics Products, 723 F.2d 238, 265 (3rd
Cir. 1983); Melville v. American Home Assurance Co., 584 F.2d
1306, 1316 (3rd Cir. 1978); and Moran v. Pittsburgh-Des Moines
Steel Co., 183 F.2d 467, 473 C3rd Cir. 1950); Robbins v. Whelan,
653 F.2d 47 Clst Cir. 1981); cert denied 454 u.s. 1123, (1981).
He further seeks to distinguish Miller from the facts in the
Wj.lberg Report.
The Supreme Court case, Richardson v. Perales, 11/ has been
discussed, supra. It supports Emery rather than the Secretary,
402 U.S. at 403-405.
In Re Japa~ese Electronics Products 12/ merely states the
general law that an investigative report prepared by a government
agency creates a presumption of admissibility. For the reasons
previously outlined I believe this presumption has been overcome.
In Melville v. American Home 13/ the Court ruled that
documents prepared by the FAA pursuant to FAA regulations were
admissible unless the party challenging the directives comes
11/ Medical reports admitted.
12/ Findings by Japanese Fair Trade Commission pursuant to
Japanese Anti-Trust Law held admissible.
13/ Air worthiness Directives prepared by FAA held admissible.

700

forward with evidence impuning their trustworthiness, 584 F.2d at
1316. Air worthiness directives are vastly different from the
Fire Report here. Further, the Report itself, as previously
noted contains the material supporting its own exclusion.
In Moran v. Pittsburgh-Des Moines 14/ the Court allowed in
evidence a report on the cause of a gasoline tank explosion.
However, the Secretary's reliance on Moran is misplaced. The
Moran case arose before Rule 803(8)(c) and its trustworthiness
standard was adopted. Specifically, it arose under the old
business record statute. As the Sixth Circuit recently stated
the "precedential value of Moran is suspect •••• " Miller v.
Caterpillar Tractor Co., 697 F.2d at 144 n. 1.
In Robbins v. Whelan 15/ the Court ruled that the jury
should have been permitted--"to hear evidence of the braking performance of new cars.
The Secretary also seeks to distinguish Miller. She claims
Miller is not persuasive because the engineer who drafted the
report did not arrive on the scene until three days after the
accident. At that time the accident had been cleared up.
Further, the engineer based her findings solely on interviews.
In contrast, the Secretary asserts her report is based on an
investigation by a "team of experienced investigators and
experts". As previously noted the experience and skill of the
investigators is not facially apparent.
For the reasons previously stated I conclude that the
Wilberg Mine Fire Report should be and is excluded as evidence.
Additional issues urged by Emery should be considered.
Emery argues the Report is untrustworthy because of political
motivation. This arose because the report was prepared during
Congressional hearings relating to the fire.
It is claimed that
the Congressional committee questioned MSHA's ability to protect
miners, its ability to conscientiously enforce the Act, its own
alleged culpability and the adequacy of its accident investigation.
Political motivation can be a basis to exclude government
reports. 16; However, only minimal portions of the transcript of
the hearings were filed in this case.
It is accordingly not
possible to form a conclusion that the report was politically
motivated. Emery's contentions in this respect are accordingly
rejected.
14/ Bureau of Mines report on cause of gasoline tank explosion
admitted.
15/ The Appellate Court ruled it was error to exclude Department
of Transportation braking performance report.
16/ Baker v. Firestone Tire and Rubber Co., 793 F. 2d 1196, 1199
Tilth Cir. 1986); United States v. Durrani, 659 F. Supp. 1183 (D.
Conn. 1987).
701

Emery also contends that the company and a number of its
former employees are currently the subject of a criminal
investigation being conducted by MSHA for submission to the U.S.
Attorney for the District of Utah. Contrary to Emery's views,
the admissibility of the Report is not related to the criminal
investigation. Rather, its admissibility is determined by the
Mine Act, the Commission's rules, and the case law precedent
cited above.
Accordingly, for the reasons stated herein I enter the
following:
ORDER
The proffer of the exhibit 17; identified as "Report of
Investigation, Underground Coal Mine Fire, Wilberg Mine, I.D. No~
42-00080, Emery Mining Corporation, Orangeville, Emery County,
Utah, December 19, 1984" is refused.

Law Judge
Distribution:
Timothy Biddle, Esq., Thomas Means, Esq., Susan Chetlin, Esq.,
Crowell & Moring, 1001 Pennsylvania Avenue, N.W., Washington, D.C.
20004-2505
James Crawford, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Mary Lu Jordan, Esq., United Mine Workers of America, 900
Fifteenth Street, N.W., Washington, D.C.
20005

17/ The exhibit is filed in Official Commission File No. 7 of
WEST 87-130-R.
/bls
702

~

u. s. GOVERNlllENT PRINTING orr ICE• 1988-201-735 :83004