AUGUST 1986
COMMISSION DECISIONS
08-07-86
08-20-86
08-27-86

Cotter Corporation
Harry Wadding v. Tunnelton Mining Co.
Amax Chemical Company

WEST 84-26-M
PENN 84-186-D
CENT 84-91-M

Pg. 1135
Pg. 1142
Pg. 1146

PENN 86-217-R
CENT 85-36-M
CENT 86-64-M
WEVA 86-311-R
KENT 86-93-D
PENN 86-65-R
PENN 86-135-R
WEVA 85-169
WEST 86-126-R
WEST 86-131-R
WEST 86-140-R
WEST 86-141-R
SE
86-46
WEST 86-19
YORK'85-12-D
SE
86-67
WEST 85-77-DM
WEVA 86-46-R
SE
86-47-DM
SE
86-12-M
KENT 86-63-D
SE
86-57
KENT 85-140-M
SE
86-28-M
SE
86-31-M

Pg. 1153
Pg. 1160
Pg. 1162
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Pg. 1170
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Pg. 1175
Pg. 1182
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Pg. 1220
Pg. 1226
Pg. 1229
Pg. 1231
Pg. 1242
Pg. 1243
Pg. 1251
Pg. 1253
Pg. 1256
Pg. 1261
Pg. 1263

ADMINISTRATIVE LAW JUDGE DECISIONS
08-01-86
08-05-86
08-05-86
08-05-86
08-06-86
08-06-86
08-06-86
08-06-86
08-07-86
08-07-86
08-07-86
08-07-86
08-08-86
08-08-86
08-12-86
08-13-86
08-14-86
08-14-86
08-19-86
08-21-86
08-26-86
08-25-86
08-26-86
08-28-86
08-28-86

Rushton Mining Company
Homestake Mining Company
D. P. Frost Construction Co.
Consolidation Coal Company
Sec. for Charles Ball v. Arch of KY, Inc.
Tunnelton Mining Company
Greenwich Collieries
Quinland Coals, Inc.
Emery Mining Corporation
Utah Power & Light, Emery Mining Corp.
Utah Power & Light, Emery Mining Corp.
Utah Power & Light, Emery Mining Corp.
Alabama By-Products Corp.
Empire Energy Corporation
Martha Perando v. Mettiki Coal Corp.
Jim Walter Resources, Inc.
Dan Thompson v. Gilbert Industrial
Southern Ohio Coal Company
Fred O.W. Arntz v. Metric Constructors
Brown Brothers Sand Company
Frank McCoart v. Elm Coal Co.
Jim Walter Resources, Inc.
M.A. Walker Company, Inc.
Yates Construction Co., Inc.
Martin Marietta Aggregates

AUGUST 1986
Review was granted in the following cases during the month of August:
White County Coal Corporation v. Secretary of Labor, MSHA, Docket No.
LAKE 86-58-R, 86-59-R. (Judge Melick, June 30, 1986).
Secretary of Labor on behalf of John Gilbert v. Sandy Fork Mining Co.,
and, John Gilbert v. Sandy Fork Mining Co., Docket No. KENT 86-76-D, and
KENT 86-49-D. (Judge Melick, July 3, 1986).
Greenwich Collieries, Div. of Pennsyl~ania Mines Corporation v. Secretary
of Labor, MSHA, Docket No. PENN 85-188-R, etc. (Judge Maurer, June 14, 1986
partial decision - Petition for Interlocutory Review).
Review was denied in the

the month of

Harry L. Wadding v. Tunnelton Mining Co., Docket No. PENN 84-186-D.
(Judge Melick, June 18, 1985).

COMMISSION DECISIONS

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

August 7, 1986

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

Docket No. WEST 84-26-M

COTTER CORPORATION

BEFORE:

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

DECISION
BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), Commission
Administrative Law Judge John A. Carlson concluded that Cotter Corporation
("Cotter") violated 30 C.F.R. § 57.18-25 (1984), a mandatory metal-nonmetal
underground safety standard providing:
No employee shall be assigned, or allowed, or be
required to perform work alone in any area where hazardous
conditions exist that would endanger his safety unless
his cries for help can be heard or he can be seen.
7 FMSHRC 360 (March 1985)(ALJ). };/

For the following reasons, we reverse.

Cotter's Schwartzwalder Mine is an underground uranium mining
operation located in Jefferson County, Colorado. On October 6, 1984,
Pete Redmond, a Cotter shift boss, assigned three miners to work in
stopes 17-3 and 17-4 of the mine. (Stopes are excavated areas from
which ore is mined in a series of steps.) The work crew consisted of
Romolo Lopez, Paul Herrera and Bobby Varela. Because Lopez's partner
had not reported for work that day, Redmond instructed Herrera to "bounce
back and forth" between Lopez and Varela. Lopez was assigned to stope
17-3 and Varela was assigned to stope 17-4. The distance between stopes
17-3 and 17-4 was approximately 50-60 feet. In order to move from one
stope to another, it was necessary to climb down a ladderway, walk 50-60
feet and then climb up another ladderway.
1/
Following the Secretary of Labor's revision of the metal-nonmetal
standards in January 1985, this standard now is found unchanged at 30
C.F.R. § 57.18025 (1985).

1135

Lopez was assigned to drill three boreholes with a jackleg drill.
(A jackleg drill, sometimes referred to as a "jackdrill, 11 is an airoperated rock drill that has a single support leg or "jackleg".) The
shift had begun at 8:00 a.m. and Lopez reached his work area at around
8:30 a.m. After completing some preparatory work not involving drilling,
Lopez was ready to drill at about 8:40 a.m. Herrera checked on Lopez at
around 9:00 a.m. and stayed with him for approximately 15 minutes. As
Herrera left stope 17-3 to go back to stope 17-4, he met Redmond, the
shift boss, at the manway leading into stope 17-3. Redmond also was on
his way to check on Lopez. Redmond stayed with Lopez for approximately
15 minutes, during which time Lopez was operating the drill. As Redmond
left the work area, he met an inspector of the Department of Labor's
Mine Safety and Health Administration ("MSHAn), Richard Coon, and one of
Cotter's safety and training specialists at the bottom of the manway
leading into stope 17-3.
Inspector Coon entered stope 17-3 at approximately 10:00 a.m. and
observed Lopez operating the jackleg drill by himself. Coon asked Lopez
where his partner was and Lopez informed him that there was no one
working with him directly, but that the other two members of the crew,
who were in stope 17-4, checked on him periodically. Inspector Coon
asked to speak to the other two crew members and sent Lopez to find
them. On his way down the ladderway, Lopez met Herrera, who was coming
up to stope 17-3 to check on him. Inspector Coon thereafter issued an
imminent danger withdrawal order and citation alleging a violation of 30
C.F.R. § 57.18-25. 2/
In his decision, Judge Carlson concluded that Cotter had violated
section 57.18-25. Relying on statistical reports concerning accidents
involving rock drilling and on testimony from Inspector Coon, he found
that an area in which jackleg drilling takes place is one where "hazardous
conditions" exist within the meaning of section 57.18-25. 7 FMSHRC at
361-62. The judge applied the reasoning in Old Ben Coal Co., 4 FMSHRC
1800 (October 1982), in which, analyzing a comparable "working alone"
standard (30 C.F.R. § 77.1700), the Commission held:
[T]he standard requires [that where miners are
working alone where hazardous conditions exist,
there must be] communication or contact of a
regular and dependable nature commensurate with
the risk present in a particular situation.
4 FMSHRC at 1803. The judge found that the contact that Lopez had with
other Cotter employees was insufficient to meet the Old Ben test.
7 FMSHRC at 365-68. He ultimately held that Lopez was allowed to work
alone in an area where hazardous conditions existed without sufficient
contact with other miners. 7 FMSHRC at 368.
2/
The withdrawal order was not at issue in the proceedings before
Judge Carlson.

1136

We granted Cotter's petition for review. The American Mining
Congress ("AMC") filed an amicus brief and we heard oral argument in
this matter. Cotter and the AMC contend that jackleg drilling is not a
per se hazardous mining activity. Cotter also asserts that there is no
evidence to support the conclusion that Lopez was working in an area
where specific hazardous conditions existed. Cotter argues that, even
assuming hazardous conditions were present, the contact that Lopez had
with other Cotter personnel was sufficient to meet the Commission's
Old Ben test.
We conclude that the evidence presented by the Secretary on the
present record fails to demonstrate that jackleg drilling is per se
hazardous within the meaning of section 57.18-25. We further conclude
that even had hazardous conditions existed in connection with Lopez's
drilling, the level of contact that he had with others satisfied the
requirements of the cited standard as a matter of law.
At the outset, we must dispel misconceptions as to the general
meaning of this "working alone" standard. Section 57.18-25 does not
prohibit employees from working alone. 3/ Contrary to some of the-testimony in this case (Tr. 14-15), this standard also does not contemplate that, merely because an employee is working alone, "hazardous
conditions" automatically exist. If that were the intended meaning of
the regulation, its reference to "hazardous conditions" would be surplusage. Rather, under section 57.18-25, an employee assigned a task
alone must have sufficient contact with others (i.e., must be able to be
heard or seen) if, and only if, hazardous conditions within the meaning
of the regulation are associated with that task. It is equally clear
that the standard does not require constant contact in such circumstances.
Cf. Old Ben, supra, 4 FMSHRC at 1803-04. Thus, the real question in
cases arising under section 57.18-25 where hazardous conditions are
shown to exist is whether the employee's contact with others, which need
not be continual, was sufficient to satisfy the protective purposes of
the standard.
The judge found that an area in which jackleg drilling occurs is
one where "hazardous conditions" exist within the meaning of section
57.18-25. 7 FMSHRC at 261-62. The Secretary's position concerning this
point is not clear. In his reply brief counsel for the Secretary disclaimed the view that jackleg drilling is per se hazardous, yet during
oral argument seemed to agree with the judge 1 s-Yinding in that regard.
Tr. Oral Arg. 35-38, 42. In any event, we conclude that the judge's
finding is not supported by substantial evidence.

3/
If the Secretary wishes to prohibit certain tasks from being performed alone, he may promulgate standards that expressly accomplish that
end. Such a standard is not involved here.

1137

The judge relied primarily on MSHA computer-generated summaries of
drilling accidents in underground metal-nonmetal mines during the years
1981-1984. Exhs. P-2 through P-5. These summaries cover a wide range
of different drilling operations and it is impossible to determine from
the brief descriptions in many of the summaries whether jackleg drilling
was specifically involved in a given accident. Moreover, some of the
accidents appear to have stemmed from incidents that may not have involved
drilling at all. See, e.g., Exh. P-4, Items 1, 3, 4, 5, 6 & 7. On the
basis of evidence SO'"""lacking in substantive explanation, we cannot
endorse the judge's virtual legislative determination that jackleg
drilling is per se hazardous within the intendment of section
57 .18-25. 4 / - Returning to our examination of the standard in light of the facts
surrounding Lopez's drilling, we agree in result with the judge that
Lopez was working "alone" as that term is used in section 5 7 .18-25.
7 FMSHRC at 364-65. As discussed above, the three-man crew that included
Lopez was divided between two worksites, stopes 17-3 and 17-4. Lopez
was working in stope 17-3 while the other two members of the crew,
Herrera and Varela, were assigned to stope 17-4. The distance between
the stopes was approximately 50-60 feet, and travel between the stopes
required climbing up one ladderway and down another. Under these circumstances, we conclude that "for practical purposes" Lopez was working
alone in the particular work area to which he was assigned. See Old Ben,
not
4 FMSHRC at 1802. (As previously noted, such an assignment
forbidden by the standard and does not, by itself, imply any violation
of the standard.)
For purposes of this decision only, we will assume that specific
hazardous conditions existed in connection with Lopez's work and turn to
the crucial issue of whether Lopez had sufficient contact with other
miners. In establishing in Old Ben a test under which such contact
issues could be resolved, the Commission rejected approaches either
4/ The judge also relied upon the testimony of the inspector who issued
the citation. Without detracting from the inspector's qualifications as
a general expert in mine health and safety, we note his statement that
he had never operated a jackleg drill (Tr. 60), his candid admission
that he was not an expert on drilling (Tr. 61), and his apparent misconceptions as to the general meaning of the cited regulation. Tr. 14-16.
We further note that because of its age, the judge expressed some doubt
as to the weight to be accorded Exh. P-1, a 1975 report on jackleg
drilling prepared by MSHA's predecessor agency, MESA, based on data for
the years 1973-74. 7 FMSHRC at 362. The judge assigned weight to the
report largely on the basis of the subsequently prepared MSHA computer
summaries but, for the reasons discussed above, we cannot conclude that
these summaries lend weight to the older MESA report, Finally, some
evidence was presented that the practice of Cotter and the industry is
to have miners operate jackleg drills in pairs. However, the evidence
in this record falls short of establishing that any such industry norm
exists or whether any such practice is founded primarily on safety or
production considerations.

1138

requiring constant contact under all conditions or allowing any minimum
level of contact to satisfy the standard. The standard involved in
Old Ben, 30 C.F.R. § 77.1700, provides that no employee shall be required
to "work alone in any area where hazardous conditions exist that would
endanger his safety unless he can communicate with others, can be heard,
or can be seen." The Commission held that this standard requires:
communication or contact of a regular and dependable nature commensurate with the risk present in
a particular situation. As the hazard increases,
the required level of communication or contact
increases.
4 FMSHRC at 1803. 5/
Thus, the precise issue presented is whether the contact Lopez had
with the other Cotter employees was (1) of a regular and dependable
nature, and (2) commensurate with the hazard presented. The judge
answered the first question in the affirmative and we agree. 7 FMSHRC
at 367. Herrera, who had been assigned by the shift boss, Redmond, to
assist Lopez, was aware that he was to check on Lopez on a periodic
basis. He did check on Lopez around 9:00 a.m., staying with him
approximat
15 minutes. He also attempted to check on Lopez a second
time shortly after 10:00 a.m.; however, the citation had already been
issued. In between these two visits, Redmond also checked on Lopez,
staying with him for approximately 15 minutes. Under these circumstances,
we affirm the judge's finding that the presence of Herrera and Redmond
"was in general accord with a plan to provide periodic contact with
Lopez on a regularized basis." 7 FMSHRC at 367.
The actual amount of time that other miners spent with Lopez is
particularly compelling. The judge found, and the evidence shows, that
Lopez was in contact with other miners for a total of approximately 30
of the 80 minutes before being observed by the inspector. 7 FMSHRC at
366-67. This is nearly 40% of the time during which he was engaged in
drilling-related activities in stope 17-3. Moreover, the actual drilling
consumed only about 30 minutes of the 8:40-10:00 a.m. time period
involved. Also during this period Varela twice walked down towards
the entrance to stope 17-3 to check on Lopez. From the sound of
the drill, Varela could hear that the drilling was proceeding normally.
We conclude that, as a matter of law, such a substantial level of
contact is sufficient to satisfy the requirements of the standard
during the
operation at issue.
was an experienced

2./

Section 57.18-25 refers to being heard or seen but, unlike section
77.1700, does not refer to "communication" with others. Like the judge
(7 FMSHRC at 365-66), we do not view this difference in wording as
important in this specific case, although we recognize that different
issues may arise under each standard. We use the term "contact" here as
a convenient summary term for being heard or seen apart from any notions
of interactive "communication."

1139

miner (Tr. 108), his drilling assignment appears to have been routine,
and the record does not reflect that any unusual mining conditions were
present. We emphasize that the facts here differ significantly from the
nearly total lack of contact involved in Old Ben. See 4 FMSHRC at
1801-02. Therefore, on the facts involved in the present case, the
judge erred in concluding that a violation of the standard occurred.
For the foregoing reasons, the decision of the administrative law
judge is reversed and the civil penalty assessed by the judge is vacated.

'RicllardV:BaCk, Commissioner
VJoyce ~. Doyle, Commission

L. Clair Nelson, Commissioner

1140

Distribution
Barry F. Wisor, Esquire
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, Virginia
22203
Barry D. Lindgren, Esquire
Mountain States Employers Council
P.O. Box 539
Denver, Colorado
80201
for Cotter Corporation
Michael Duffy, Esquire
American Mining Congress
Suite 300
1920 N Street, N.W.
Washington, D.C.
20036
Administrative Law Judge John A. Carlson
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
333 W. Colfax Avenue, Suite 400
Denver, Colorado 80204

1141

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

August 20, 1986

Harry L. Wadding

v.

Docket No. PENN 84-186-D

Tunnelton Mining Co.

BEFORE:

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

BY THE COMMISSION:
On June 16, 1986, Harry L. Wadding filed with the Commission a
Motion to Have the Judgment Set Aside in the above matter. The decision
of Commission Administrative Law Judge Gary Melick in this proceeding,
dismissing Mr. Wadding's discrimination complaint, was issued on June
18, 1985. 7 FMSHRC 896 (June 1985)(ALJ). Wadding failed to file a
timely petition for discretionary review of Judge Melick's decision
within the 30-day period prescribed by the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). 30 U.S.C.
§ 823(d)(2)(A)(i). See also 29 C.F.R:-§~00.70(a),
The Commission did
not direct review on its own motion, and by operation of the statute the
judge's decision became a final decision of the Commission 40 days after
its issuance. 30 U.S.C. § 823(d)(l). Under these circumstances, we
construe Wadding's motion as a request for relief from a final Commission
order. 29 C.F.R. § 2700.l(b) (Federal Rules of Civil Procedure apply in
absence of applicable Commission rule); Fed. R. Civ. P. 60 (Relief from
Judgment or Order). See William A. Haro v. Magma Copper Co., 5 FMSHRC
9-10 (January 1983); Gerald D, Boone v. Rebel Coal Co., 4 FMSHRC 1232,
1233 (July 1982).

1142

Wadding, who prepared his motion and supporting materials without
the assistance of counsel, alleges that Tunnelton Mining Company engaged
in fraud, through perjured testimony and other deception, during the
hearing below. See Fed. R. Civ. P. 60(b)(3). We have reviewed Wadding's
motion and related papers, the voluminous materials that Wadding has
submitted in support of his motion, the operator's response, and the
judge's decision. The motion is denied for two reasons.
First, the motion is seriously untimely. A Rule 60 motion based on
allegations of fraud "shall be made within a reasonable time, and •••
not more than one year after the judgment, order, or proceeding was
entered or taken." Fed. R. Civ. P. 60(b) (emphasis added). Although
Wadding's motion falls within the one-year period, we do not find the
lapse of time between the issuance of the judge's decision and the
submission of his motion to be reasonable under the circumstances.
Wadding's motion is not based on newly discovered material evidence, but.
rather on evidence and allegations pertaining to the merits of his
discrimination complaint and contested at the hearing below. There is
no apparent reason why Wadding could not have filed a timely petition
for discretionary review challenging the judge's findings and credibility
resolutions with respect to the matters that he now seeks to raise.
Rule 60 is not a substitute for appeal, and under settled principles of
finality and repose the present motion is untimely. See, e.g., Central
Operating Co. v. Utility Wk.rs. of America, 491 F.2d 245, 252-53 (4th
Cir. 1974); 11 Wright & Miller, Federal Practice and Procedure § 2866
(p. 232) (1973).
Second, even were the motion to be entertained as timely, it is
insufficient on the merits to justify relief. A movant under Rule
60(b) (3) must establish by clear and convincing evidence that the
adverse party engaged in fraud or other misconduct, and that the
wrongdoing prevented the moving party from fully and fairly presenting
his case. E.g., Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.
1978). Wadding has made no such showing but rather, as noted, merely
attempts to relitigate evidentiary matters and assertions ruled upon by
the judge. We also observe that Wadding was represented by counsel at
the hearing below. We find no clear and convincing evidence of fraud,
misconduct or illegality on this record.

1143

For the foregoing reasons, the motion is denied.

~an

~,(t J/)u H-t.

Richard V. Backley, Commissioner

v~a.. ~

Joyce A. Doyle, CommiSSiO!l

~~fs;; Last(~;; Co~issioner

cL'Lt~v f Llf.-"LCI'-.,.
L. Clair Nelson, Commissioner

1144

Distribution
Harry L. Wadding
Box 348
Blacklick, Pennsylvania

15716

R. Henry Moore, Esq.
Rose, Schmidt, Chapman, Duff & Hasley
~00 Oliver Bldg.
Pittsburgh, Pennsylvania 15222
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1145

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0.C.

20006

August 27, 1986

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

v.

Docket No. CENT 84-91-M

AMAX CHEMICAL COMP&'iY

BEFORE:

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

DECISION
BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), Commission
Administrative Law Judge Gary Melick concluded that Amax Chemical Company
("Amax") violated 30 C.F.R. § 57.3-22 (1984) by failing to provide
adequate support for loose ground (roof). 1/ 7 FMSHRC 447 (March 1985)
(ALJ). We granted Amax's petition for discretionary review and heard
oral argument. On the bases that follow, we affirm.

1/
This mandatory ground control safety standard, which applies to
metal-nonmetal underground mines, provides:
Miners shall examine and test the back, face, and rib
of their working places at the beginning of each shift and
frequently thereafter. Supervisors shall examine the ground
conditions during daily visits to insure that proper testing
and ground control practices are being followed. Loose ground
shall be taken down or adequately supported before any other
work is done. Ground conditions along haulageways and
travelways shall be examined periodically and scaled or
supported as necessary.
30 C.F.R.§ 57.3-22 (1984) (emphasis added). In 1985, this provision
was renumbered as 30 C.F.R. § 57.3022 but its wording was not changed.

1146

Amax operates an underground potash mine and surface preparation
mill located in Eddy County, New Mexico. The mine's ore is composed of
potash and sodium chloride (salt) and contains seams of clay, mud, and
carnallite. 2/ On June 19, 1984, Clyde E. Bays, an inspector of the
Department of Labor's Mine Safety and Health Administration ( 11 MSHA 11 ) ,
conducted an inspection of Amax's mine. In the shuttle car unloading
area Inspector Bays observed an area of roof 15-feet by 8-feet in which
a crack or separation was visible. Eight to ten roof bolts had been
installed around the visible crack. Inspector Bays proceeded to sound
the roof with his hammer. The inspector testified that when a solid
roof is sounded a clear ringing sound is generally produced but that if
there is "some separation in the strata" of the immediate roof a dull,
"drummy" sound is heard. Tr. 27-28.
When Inspector Bays sounded the
area in question, he encountered a drummy, "dull thud" sound. Because
of the presence of the visible crack and the restilts of his sounding
test, the inspector believed that the roof was loose and inadequately
supported and issued the subject citation alleging a violation of
section 57.3-22. The inspector designated the alleged roof control
violation as "significant and substantial." 30 U. S .C. § 814 (d) (1).
The citation was terminated after Amax installed six additional
roof bolts in the cited area. After installation of those bolts,
Inspector Bays again tested the roof and found that it no longer sounded
drummy.
At the hearing before Judge Melick, Amax's general mine superintendent,
Robert Kirby, acknowledged that a drummy sound suggests that there is a
separation at some point above the ceiling. He state<l, however, that
this does not necessarily mean that the material is loose and will fall.
Kirby testified that the practice at Amax was to install roof bolts in
drummy-sounding areas as insurance against roof falls. Kirby conceded
on cross-examination that, despite his past experience in the mine, he is
unable to determine with absolute certainty whether a drummy area will
fall. S.K. Desai, Amax's production superintendent, testified that
drummy-sounding roof is evidence of either a physical separation in the
roof strata or loosened adhesion between the strata because of the
presence of carnallite or mud seams. Desai testified that when carnallite
comes in contact with salt it will produce a drummy sound when tapped.
He further stated that the presence of carnallite poses the same hazard
as separation in the seams and the material could fall.
2/
Carnallite is a massive, granular, greasy, milk-white, soluble,
hydrous magnesium-potassium chloride. Bureau of Mines, U.S. Department
of Interior, A Dictionary of Mining, Mineral and Related Terms 177
(1968)

("DMMRT").

3/
Drummy is defined as, 11 [l]oose coal or rock that produces a hollow,
loose, open, weak, or dangerous sound when tapped with any hard substance
to test condition of strata; said especially of a mine roof." DNMRT 356.

1147

In affirming the citation, the judge seemed to indicate that the
critical issue was whether drummy-sounding roof alone is sufficient to
support a finding that ground is loose and inadequately supported within
the meaning of section 57.3-22. 7 FMSHRC at 448-49. The judge relied
in part on the testimony of Desai that "drummy sounding roof is evidence
of either a physical separation in the roof strata or loosened adhesion
between the strata resulting from the presence of carnallite or mud
seams." 7 FMSHRC at 449. The judge determined that even using Amax's
"definition of 'loose' as 'not rigidly fastened, or securely attached'
or as 'loosely cemented •.• material, rn the cited drummy roof was loose
and required additional support. 7 FMSHRC at 449. Accordingly, the
judge found a violation. He further concluded that the evidence was
insufficient to establish a "significant and substantial" violation
within the meaning of section 104(d)(l) of the Act, as no effort had
been made by the MSHA inspector to bar down the area around the fracture.
7 FMSHRC at 450. !!_/ The judge assessed a $50.00 civil penalty.
We conclude that substantial evidence supports the judge's finding
of a violation in this particular instance but, on the present record,
we disavow any implication in the judge's decision that the presence of
drummy-sounding roof (back) in a metal-nonmetal mine always signifies
"loose" ground within the meaning of the standard.
Section 5 7. 3-22 requires in pertinent part: "Loose ground shall be
taken down or adequately supported before any other work is done."
(Emphasis added). In light of the arguments advanced in this case, we
emphasize at the outset that this standard does not provide that "drummy"
ground be taken down or adequately supported but rather requires that
"loose ground" be taken down or supported. "Loose ground" is not defined
in the standard, and we therefore turn to the commonly accepted meanings
of the term.
Both the Secretary and Amax note that "loose" is defined as "not
rigidly fastened or securely attached." Webster's Third World New
International Dictionary (Unabridged) 1335 (1966). The term "loose
ground" has a specific meaning within the mining industry and is defined
as "[b]roken, fragmented, or loosely cemented bedrock material that
tends to slough from sidewalls into a borehole . . . • As used by miners,
rock that must be barred down to make an underground workplace safe •••• "
D~T 658.
Accordingly, the term loose ground, as used in this standard,
refers generally to material in the roof (back), face, or ribs that is
not rigidly fastened or securely attached and thus presents some danger
of falling.
While this definition is generally useful, the crux of the matter
is how it is determined that ground is, in fact, loose within the meaning
of section 57.3-22. As discussed in recognized texts, practical roof
testing is not yet a precise science served by a sophisticated technology.
4/
The Secretary did not seek review of the judge's finding that the
Violation WaS not "significant and SUbStantial. II

1148

See, e.g., S.M. Cassidy (ed.), Elements of Practical Coal Mining 76-77
(1973). Certainly, a major means of detecting loose roof is the one
employed by the inspector in this matter: the sound-and-vibration
method, which is a simple test involving tapping the roof with a hammer.
Generally, loose roof will give off a dull, hollow, drummy sound as
compared with the solid ring of firm roof. While a drummy sound is
generally an indication of loose roof, circumstances may be present in
which the sound-and-vibration test is not reliable. See, e.g., Cassidy,
id., at 77. We note the concession of Inspector Bays that there are
instances when a drummy sound is produced during testing but the roof is
not, in fact, loose. Tr. 64-65.
In this regard, it bears emphasis that Amax's mine is a potash
mine. Unlike the regulatory scheme that obtains with respect to underground coal mines, approved roof control plans are not required in
underground metal-nonmetal mining operations. Rather, "[g]round support
shall be used if the operating experience of the mine, or any particular
area of the mine, indicates that it is required." (30 C.F.R. §57.3020
· (1985) (formerly numbered as 30 C.F.R. § 57.3-20 (1984)). See generally,
White Pine Copper Div., Copper Range Co., 5 FMSHRC 825, 835-37 (May
1983). (Of course, the standard involved in the present case also
imposes the continuing duty to examine ground conditions in such mines
and to take down or adequately support any loose ground.)
In view of the distinctive nature of ground control in metalnonmetal mines and the uncertainties that may be involved in any
particular sound-and-vibration test, and on the basis of the present
record, a per se rule equating drumminess with loose ground in underground metal-nonmetal mines cannot be endorsed. Rather, we hold that in
evaluating ground conditions and the adequacy of support under this
standard, all relevant factors and circumstances must be taken into
account. The result of a sounding test is an important factor, but is
not necessarily dispositive. The size of the drummy area and other
possible explanations for the drumminess must also be considered.
Visible fractures, sloughed material, "popping" and ''snapping" sounds in
the ground, the presence, if any, of roof support, and the operating
experience of the mine or any of its particular areas, are also relevant
factors to be considered. Cf. White Pine, supra, 5 FMSHRC at 833-37.
In the present case, we conclude that substantial evidence, which
includes but is not limited to the inspector's sounding test, supports
the judge 1 s finding that the cited ground was loose. Here, the inspector
carefully examined the area of roof in question. His attention was
engaged first by the presence of a clearly visible crack surrounded by
8 to 10 previously installed roof bolts. A fracture often signifies loose
roof, and Amax's previous bolting efforts indicated some level of concern
by the operator itself. As noted, the inspector's sound test produced a
drummy sound despite the existing bolting. The testimony of production
superintendent Desai regarding ground conditions in Amax's mine lends

1149

corroborative support to the inspector's belief that the cited area was
loose. As noted, Desai testified that drummy-sounding roof is evidence
of either a physical separation in the roof strata or loosened adhesion
between the strata because of the presence of carnallite or mud seams.
Desai also testified that carnallite poses the same hazard as does
separation in the seams. Although Amax correctly contends that its
operating experience must also be considered, we discern no persuasive
reason on this record to challenge the inspector's informed judgment or
to overturn the judge's finding that the roof was loose. !}_/

5/
We reject any suggestion that the ground control measures required
by the standard apply only when ground is in immediate danger of falling.
The standard contains no such qualification. If an operator disagrees
with an inspector's determination that the ground is loose, it can
attempt to demonstrate the soundness of the ground by barring the area
in question. Tr. 68. The operator also can point to the operating
history of the mine and any other relevant factors tending to show that
the ground is not loose, Here, rather than barring the area in question
Amax installed additional roof bolts. However, as the facts of this
case show the fact that roof bolts have previously been installed does
not guarantee compliance with the standard. The standard requires not
just support but adequate support.

1150

On

the foregoing bases, the judge's decision is affirmed.

·'/
/~·
/
~tL.-Lz~
{.(,.
c··
·L.e:_
Joyce A; Doyle, Commissione

££g Lasto'Jwkalc,
~ .-LLc v

:"}

f

r./~

. ·'-.- ~-1-t.../

L. Clair Nelson, Commissioner

1151

Distribution
Charles C. High, Jr., Esq.
Kemp, Smith, Duncan & Hammond
P.O. Drawer 2800
El Paso, Texas 79999
James L. Dow, Esq.
Dow, Feezer & Williams, P.A.
P.O. Box 128
Carlsbad, New Mexico 88221
Linda Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1152

ADMINISTRATIVE LAW JUDGE DECISIONS

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

22041

AUG 1 1986
RUSHTON MINING COMPANY,
contestant

CONTEST PROCEEDING
Docket No. PENN 86-217-R
Citation No. 26 9 2281; 6/23/86

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

Rushton Mine

DECISION
Appearances:

Timothy M. Biddle, Esq., and Susan E. Chetlin,
Esq., Crowell & Moring, Washington, D.C., for
Contestant;
Robert A. Cohen, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Respondent.

Before:

Judge Maurer

This case is before me upon the notice of contest and
motion to expedite filed by the Rushton Mining Company
(Rushton) under section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq., the "Act"
and Commission Rule 52, 29 C.F.R. § 2700:52-;-challenging the
validity of Citation No. 2692281 issued pursuant to section
104(a) of the Act.
A hearing was held in Pittsburgh, Pennsylvania, on July 3, 1986.
The issue in this case is whether a violation of the
mandatory standard at 30 C.F.R. § 75.1400(c) exis
as
alleged in Citation No. 2692281.
The citation, as modified,
reads as follows:
The devices used to transport persons in the
slope [do] not provide assurance they will act
quickly and effectively in the event of an
emergency in that the Sanford-Day Brakecar is
the trailing car when entering the slope and
the lead car when exiting the slope.
[S]hould
uncoupling take place the Sanford-Day Brakecar
could not control or stop the other mantrip
car used· in conjunction with the brakecar.

1153

cited standard provides as follows:
(c) Cages, platforms, or other devices used
to transport p~rsons in shafts and slopes shall
be equipped with safety catches or other no less
effective devices approved by the Secretary that
act quickly and effectively in an emergency.
Such catches or devices shall be tested at least
once
two months.
Rushton has f il
a post-hearing motion to supplement
the record to of
into evidence the affidavit of Raymond G.
Roeder, Mine Manager of. the Rushton Mine (marked as Exhibit
C-7) and the affidavit of Gerald P. Scanlon, Resident Mining
Engineer-of the Rushton Mine (marked as Exhibit C-8). The
stated purpose of these two exhibits is to supplement
Rushton's evidence concerning the likelihood of a faiiure
in the coupling between the brakecar and mancar, which
question is at issue i.n this case.
These exhibits contain
technical analyses of the coupling strength between the
brakecar and the mancar, as well as the loads the various
components are subjected to, which are clearly relevant, at
least inso
as they concern the equipment as it existed
on the day the citation was written, June 23, 1986. The
Secretary·objects to these submissions on the grounds that
they go beyond the·· scope of the testimony adduced at the
hearing and obviously do not provide an opportunity for
cross-examination.
Considering the proffered exhibits in
"their entirety, I agree.
However, I am going to admit
Exhibits C-7 and C-8 into evidence for the very limited
purpose of clarifying certain estimates that were made on
the record at
hearing and which are applicable to the
equipment as it existed on June 23, 1986. These estimates
were subj
to cross-examination at the hearing and I see
no reason not to admit the more correct data into evidence
if the party sponsoring it has taken the trouble to
ine
it.
In each case the estimate which is
the hearing
record a_nd the
computation are relatively close and
the raw data is available for anyone to verify or differ
with the mathematical computations.
Findings of Fact
1. Access
and out of the Rushton Mine is via a
16 degree slope approximately 700 feet in length beginning
at the surface.
2.
In its existing configuration,
is a hoist
with a one-inch diameter steel cable rated to hold approximately fifty tons dead weight attached to a brakecar which
is in turn coupled to a mancar or a supply car to take men
and supplies, respectively, into and out of the mine.

·1154

3. A "man-trip" is composed of two cars, the brakecar
and a mancar, which can take a maximum of 52 people, 32 in
the mancar and 20 in the brakecar, into or out of the mine.
It is used at the beginning and end of each shift, of which
there are· three, to take the full complement of miners into
and out of the mine.
4. Normal procedure is for the mancar to be disconnected from the brakecar during the shift and left on a side
track on the surface.
The brakecar remains attached to the
hoist rope and a supply car is coupled to the brakecar to
make up a "supply-trip."
5. The brakecar is only detached from the hoist rope
when the cable is changed, which is approximately every 4
to 6 months and on those occasions when heavy equipment is
moved into or out of the mine.
6. Attaching the hoist rope to either the brakecar
as is presently done or the mancar as is proposed by MSHA,
requires a relatively complex (compared to the brakecarmancar attachment) multi-step connection process which takes
two men to accomplish because the coupling assembly weighs
177 pounds.
7. The brakecar contains a braking system which can
be activated either manually by a person seated in the
front seat of the car or automatically if either of two
centrifugal switches senses an overspeed condition which
would occur when the brakecar reaches a speed of approximately
300 feet per minute.
The hoist normally runs at 100 feet
per minute when hoisting people in the mantrip.
In the
event 0f an overspeed condition, such as would be caused
by a hoist rope break, the brakes would automatically stop
the brakecar and the coupled mancar.
8. These brakes are tested in the slope at least
monthly and when tested together with the mancar, the
brakes have performed properly, holding both the brakecar
and the rnancar.
9.
The mancar is connected to the down-slope end of
the brakecar by means of a steel drawbar that is 23 inches
long, from 6 to 5-1/4 inches wide and 1-1/4 inches thick.
There are two three-inch holes in either end of this bar
through which a 2-1/2 inch steel pin connects the drawbar
to the mancar. A 2-1/4 inch steel pin connects the drawbar
to the brakecar by a coupling lever which obviates the
need for anyone to go between the cars to connect them.

1155

In addition to the drawbar assembly, two separate one-inch
link safety chains independently connect the brakecar and
mancar.
10. The steel drawbar assembly existent at the time
the citation was written is estimated to be capable of
withstanding a load of fifty tons. 1/ The safety chains,
whose purpose is to keep the two cars connected in the event
the drawbar or one of the pins should fail, can withstand
eighteen tons of stress on each chain.
11. ·The brakecar weighs approximately 13,500 pounds
and the mancar weighs 11,280 pounds. Thus, the total
weight of the empty mantrip is 24,780 pounds. When fully
load.ed with 52 men (assuming 200 pounds per man), the mantrip will weigh an additional 10,400 pounds or approximately
35,180 pounds total. When the fully loaded mantrip is on
the 16-degree slope track, however, resolution of the force
of gravity into two components determines that 72.5% of the
total weight acts perpendicular to the surf ace of the slope
and is absorbed by the slope track leaving only 27.5% or approximately 5 tons of dead weight acting parallel to the
slope and.pulling on the hoist rope that is capable of
supporting fifty tons.
12. When fully loaded (at 200 pounds per man) the
mancar weighs 17,680 pounds. On the 16 degree slope track,
the perpendicular component of gravity again absorbs 72.5%
of the total weight. Thus the actual weight drawing on the
pin and drawbar coupling assembly between the cars is approximate
5,000 pounds or 2.5 tons of dead weight pulling on
a drawbar capable of supporting fifty tons.
13. The mantrip, in its existing configuration, was
placed in service in late 1972. Since that time, the instant
citation is the only one written by MSHA
the alleged
failure of this equipment to meet the cited mandatory
standard. In that time there has never 'been an accident
involving the cable attachment or the coupling assembly
between the cars. Nor have the brakes ever f
led.

1/ Because the manufacturer could not define with certainty
the steel characteristics of the existing drawbar and pins,
Rushton has purchased a new drawbar and new pins. The load
capacity of the new drawbar is 405,000 pounds or 202~5 tons.
The new 2-1/4 inch pin has a load capacity of 248,125 pounds
or 124.06 tons and the new 2-1/2 inch pin a load capacity of
306,875 pounds or 153.43 tons.

1156

DISCUSSION, FURTHER FINDINGS OF FACT, AND CONCLUSIONS OF LAW
MSHA's interest in the Rushton mantrip dates back to
sometime in 1984 when at least one inspector became concerned
with whether i t met the regulations in its present configuration..
The matter begari to come to a head in April of 1986
when an MSHA inspection party visited the mine to observe
hoist operations. At that time they requested that Rushton
relocate the brakecar to place it inby the mancar, i.e.,
switch the cars around. When Rushton balked at doing this,
his "superiors" directed Inspector Reichenbach to issue
the instant citation, which he did on June 23, 1986.
MSHA's concern over this configuration of the cars in
the mantrip sterns from the fact that the rnancar has no
independent braking system or anything else for that matter
to stop it from running away down the slope should it become detached from the brakecar. While MSHA agrees that
the coupling assembly, together with the two one-inch link
safety chaitis appears to be a secure method of attaching
the two cars, MSHA argues that in order to satisfy the
cited regulation, the attachment must be permanent, or the
rnancar must be up-slope from the brakecar. Mr. Gossard,
the chief witness for the Secretary at the hearing testified on direct examination at Tr. 59:

Q. Now, the mantrip car and the braking car
are attached by means of a link aligner?
A.

It's a pin and link arrangement, yes, sir.

Q.

Okay.

A.

That's correct, bridle chains.

And, safety chains?

Q. And, in order for the mantrip car to come
unattached from the braking car, would both of those
devices have to fail?
A.
Both devices, if they were both hooked up,
initially, both devices would have to fail to cause
a situation.

Q.
occur?

And, in your opinion could that situation

A.
It may.
I wouldn't want to bet thirty men's
lives on that it wouldn't occur.
The key phrase in the above-quoted testimony is that "[i]t
may", and that is the crux of the Secretary's case.

1157

Since the mancar has no independent means of stopping,
it is axiomatic that it cannot comply with the regulation
unless
is attached to the brakecar. The issue herein,
however, is does the regulatory standard require a downslope mancar to be a permanent fixture on the brakecar in
order to have the brakes on the brakecar satisfy the regulatory requirement for the mancar.
It is not disputed
herein that the brakes on the brakecar would stop both
cars
loaded should there be a hoist rope break or
other overspeed condition, as long as the two cars remained
attached.
In fact, the preferred method of abatement of
this citation is to simply reverse the order of the cars,
putting the brakecar on the down-slope end.
In that configuration per MSHA, the mancar would not require an independent braking system, but rather the brakes on the
brakecar would suffice to handle the braking for both cars.
I conclude that the regulation does not require a
permanent brakecar-mancar attachment. On the contrary, I
conclude that if these two cars are Sufficiently tied
together, they are in fact operating as a single device used
to
persons in a slope and that device (i.e., the
mantrip) is equipped with an adequate automatic braking
system
of stopping both cars in an emergency (such
as a hoist rope break) •
the ultimate issue is the adequacy of the
attachment between the mancar and the brakecar since everyone appears to agree that so long as the mancar remains
coupled to the brakecar there is no hazard under any conce
emergency situation. The
ssibility of brakecaring is the hazard the Secretary is concerned
only empirical data or scientific evidence concerning
strength of the coupling assembly between the
two cars,
luding the safety chains, came from the contestant and I find such evidence to
credible. The gist
of that
was that the coup
assembly can withstand
the maximum ful
weight of the
, the safety
in the event that
coupling did break would be sufficient, by
r of at least 8 (eight) , to keep the mancar
to the brakecar. This evidence was unrebutted.
Also unrebutted was the fact that Rushton has 13 years
experience operating this mantrip in that configuration
without
iencing any separation of the cars or any other
problem associated with the coupling or safety chains.
In
brief, the Secretary states that "[T]here is
still a possibility that the connection between the [mancar]

1158

and brakecar could fail due to either excess wear or human
error." That may be, but the Secretary has the burden of
proving that allegation and he· introduced no evidence of
either.
The clear preponderance of the relevant evidence in
this record does not support the alleged violation. Accordingly, I find that there has been no violation of the cited
standard.
ORDER
Citation No. 2692281 is VACATED and the contest is
GRANTED.

a rer
strative Law Judge

Distribution:
Timothy M. Biddle, Esq., and Susan E. Chetlin, Esq., Crowell
& Moring, 1100 Connecticut Avenue, Washington, o.c.
20036
(Certified Mail)
Robert A. Cohen, Esq., Office of the Solicitor,
ment of Labor, 4015 Wilson Blvd., Arlington, VA
(Certified Mail)

yh

1159

u. s. Depart22203

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

AUG 5 1986

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

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 85-36-M
A.C. No. 39-00055-05539

v.

Homestake Mine

HOMESTAKE MINING COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Lasher

The parties have reached a settlement of the four violations
involved in the total sum of $8,290.00. MSHA's initial assessment therefor totaled $11,040.00.
The terms of the settlement are as follows:
Citation
2097234
2097564
2097965
2097966

Assessment
$10,000.00
1,000.00
20.00
20.00

Settlement
$8,000.00 (fatality)
250.00
20.00
20.00

This settlement is approved for the following reasons:
With respect to Citation No. 2097234, it appears that the
workman who had fallen to his death would have not have fallen
had he used a safety belt. While his foreman was aware he was
not utilizing the safety belt, nevertheless it appears he had
been issued a s ety belt by Respondent, and instructed as to the
need and use of such.
In view thereof, the 20% reduction from
the statutory maximum penalty ($10,000) appears justified and
this compromise is approved.
For the same reasons the reduced
penalty for Citation No. 2097564 (failure to install a handrail)
is also approved.
I take notice from prior matters involving this Respondent
that, in terms of size, Respondent is a large gold mine operator.
It also appears from the settlement motion that Respondent abated
the violative conditions and demonstrated 11 a good faith desire to
comply with the health and safety standards in the future.
Citation Nos. 2097965 and 2097966 were not the subject of
reduced penalties.

1160

The settlement, viewed in its totality, involves a
substantial penalty sum, and the reduction of the penalties for
the major violations appear warranted in the circumstances.
ORDER
Respondent, if it has not previously done so, is ordered to
pay $8,290.00 to the Secretary of Labor within 30 days from the
date of this decision.

iffe;.~1-e tf· fiG~~A

_

Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Eliehue C. Brunson, Esq., Office of the Solicitor, U.S. Department of Labor, 911 Walnut Street, Room 2106, Kansas City, MO
64106 (Certified Mail)
Robert A. Amundson, Esq., Amundson, Fuller & Delaney, 203
P.O. Box 898, Lead, SD 57754 (Certified Mail)

w. Main

Mr. Dallas Tinnell, United Steelworkers of America, 315 1/2 Main
Street, Lead, SD 57754 (Certified Mail)

/blc

1161

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

AUG 5
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

1986
CIVIL PENALTY PROCEEDINGS

.:
.
.

Docket No. CENT 86-64-M
A.C. No. 41-03281-05503
Carter Pit

:

D. P. FROST CONSTRUCTION CO.,:
Respondent

..

Docket No. CENT 86-65-M
A.C. No. 41-02422-05519

:

Docket No. CENT 86-66-M
A.C. No. 41-02422-05520

.

Yelverton Pit

ORDER APPROVING IN PART AND DENYING IN PART
THE PROPOSED SETTLEMENT AGREEMENT
Before:

Judge Broderick

On July 22 and August 4, 1986, the Secretary filed motions
to approve settlement agreements in the above cases presently
scheduled for hearing {with Docket No. CENT 86-29-M) on
September 16, 1986.
Docket No. CENT 86-64-M contains three alleged violations
originally assessed at $689. The parties propose to settle for
$297. Citation 2661194 charged a violation of 30 C.F.R. §
56.11027 because of a sagging work platform with two of eight
welds separated. It was assessed at $168, and the parties
propose to settle for $126 because the area in question is a
metal walkway and if it sagged it would contact a flywheel
located below it and the resulting sound would have warned of the
deteriorated condition of the platform/walkway.
In my judgment,
the reduction in the penalty is not supported by the motion.
Citation 2261195 charged a violation of 30 C.F.R. § 56.15005
because an employee was standing on a conveyor belt shovelling
material and was not wearing a safety belt. No handrails were on
the belt. It was originally assessed at $227 and the parties
proposed to settle for $151 because "Defendant states this was an
isolated incident • • • there was little or no negligence
involved since the violation could not have been reasonably
predicted." I conclude again that the proposed reduction is not
justified by the motion. Citation 2661196 charged a violation of

1162

30 c.F.R. § 56.14003 because the guard on the head pulley was not
of sufficient length to protect against a pinch point. The
violation was assessed at $294, and the parties propose to settle
·for $20 because "Defendant states that this head pulley is 8'
above the ground. 11 Does the government accept this statement?
If it is impossible to reach the pinch point, why was the
citation issued? The motion does not provide justification for
the settlement. Therefore the motion is DENIED.
Docket No. CENT 86-65-M contains 20 alleged violations
originally assessed at $1141. The parties propose to settle for
$804. Eleven of the violations were treated as 11 single penalty
assessments" and assessed at $20 each. The motion states that
the parties agree that the proposed penalties for these
violations are appropriate. I concur. Citation 2662166 charged
a violation of 30 C.F.R. § 56.14008B because of a bench grinder
without a tool rest. It was assessed at $79 and the motion
states that the parties agree that the violation occurred and the
proposed penalty was appropriate. I concur. Citation 2662178
charged a violation of 30 C.F.R. § 56.12025 because of a loose
ground wire and improper fittings in the coarse conveyor box.
It
was assessed at $63, and the parties agree that the violation
occurred and the proposed penalty was appropriate. I concur.
Citation 2661182 charging a violation of 30 C.F.R. § 56.14001
because .of an unguarded tail pulley was assessed at $147. The
parties propose to settle for $110 because the violation "was
over-evaluated by the inspector." This statement does not
justify the proposed reduction. With respect to citations
2661183 (the violation was originally assessed at $105, the
proposed settlement is for $78), 2661187 {originally assessed at
$112; proposed settlement $20), 2662171 (originally assessed at
$79~ proposed settlement $60), 2662175 {originally assessed at
$79; proposed settlement $20), the motion provides justification
for the proposed settlement, and I will approve it. With respect
to citations 2662169 (charging a violation of 30 C.F.R. §
56.12030 because of exposed electrical conductors and a leaking
fuel valve, originally assessed at $178; proposed settlement
$134) and citation 2662176 (charging a violation of 30 C.F.R. §.
56.11012 because of an open hole in the floor of the generator
trailer, originally assessed at $79; proposed settlement $20),
the motion does not justify the proposed settlement and I will
DENY it.
Docket No. CENT 86-66-M contains three citations, two of
which charged violations assessed as "single penalty
assessmentsn at $20 each. The parties propose to settle these
violations for the assessed amounts, and I will approve the
settlement. Citation 2661186 charges a violation of 30 C.F.R. §
56.11001 because of an opening in a berm at the dump of the
crusher feeder and hopper. It was originally assessed at $112

1163

and the parties propose to settle for $84. The motion states
that the violation was the result of ordinary negligence and "was
over-evaluated by the inspector." This statement does not
justify the settlement proposal and I will deny it.
The case will be called for hearing in Dallas, Texas
commencing September 16, 1986 for all the alleged violations with
respect to which I have indicated that I will not approve the
proposed settlement agreement.

J

~~~

James A. Broderick
Administrative Law Judge

Distribution:
Jack Ostrander, Esq., U.S. Department of Labor, Office of the
Solicitor, 525 s. Griffin Street, Suite.501, Dallas, TX 75202
(Certified Mail)
John Hawkins, Esq., Naman, Howell, Smith & Lee, Box 1470, Waco,
TX 76703 (Certified Mail)
slk

1164

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

AUG 5 1986
CONSOLIDA~ION

CONTEST PROCEEDINGS

COAL COMPANY,
Contestant

v.

Docket No. WEVA 86-311-R
Order No. 2711294; 4/16/86

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

Docket No. WEVA 86-312-R
Order No. 2711295; 4/16/86
Docket No. WEVA 86-313-R
Order No. 2711298; 4/16/86
Blacksville No. 1 Mine

ORDER DISMISSING CONTESTS
Before:

Judge Koutras

The captioned cases were scheduled for hearing with
several other dockets heard in Morgantown, West Virginia,
during the term July 29 - 31, 1986. When the cases were
called, counsel for the parties advised me on the record that
they have reached an agreement which will enable me to dispose
of the cases without the necessity of hearings.
With regard to Docket No. WEVA 86-311-R, counsel advised
me that the contested section 104(d) (2) order should be
affirmed as issued and that the contestant no longer desired
to contest the order and would file a motion to withdraw its
contest.
With regard to Docket Nos. WEVA 86-312-R and WEVA 86-313-R,
counsel advised me that MSHA has agreed to modify the contested
section 104(d) (2) orders to section 104(a) citations, with
"significant and substantial" (S&S) findings.
Under the circumstances, contestant moved to withdraw the contests, and the
request was granted.

1165

In view of the foregoing agreements by the parties, I
see no reason why these contests should not be dismissed.
·Accordingly, they are dismissed .

v·

.L1f)1,~~
/ :k£u~&({:~:;7
/

~orger,.
ras
.Administrative Law Judge

stribufion:

w. Henry Lawrence, Esq., Steptoe and Johnson, P.O. Box 2190,
Clarksburg, WV 26301 (Certified Mail}
Mark Swirsky, and William T. Salzer, E s., Office of the
Solicitor, U.S. Department of Labor, Room 14480 Gateway
Building, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
/fb

1166

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

AUG 6 1986
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
CHARLES BALL,
Complainant

Docket No. KENT 86-93-D
MSHA Case No. BARB CD 85-52
No. 37 Mine

v.
ARCH OF KENTUCKY, INC.,
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 Charles
Ball 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
The complaint alleges that on or about June 6,
1985, the complainant was discriminated against and suspended
by the respondent because he had complained to the respondent
about
ety violations and ref used to continue to work under
certain alleged existing hazardous conditions. The matter was
scheduled for hearing in Duffield, Virginia, on August 26,
1986.
On August 4, 1986, the parties filed a motion for my
approval of a proposed settlement of the case. Counsel for
both part s, including the complainant Charles Ball, have
executed the proposed settlement, the terms of which are in
pertinent part as follows:
1. Respondent agrees to pay to Mr. Charles
Ball wages in the amount of $534.20 representing
wages he would have earned had he not been placed
on suspension for 3 days without pay.
In addition
to this, respondent agrees to make appropriate

1167

adjustment in payment of any benefits which may
have accrued to Mr. Ba
during the period of
3 days during which he was subject to suspension
without pay on or about June 6, 1985, including
but not exclusively pension and welfare benefits.
2.
Respondent agrees to remove any references to any derogatory comments about the suspension of Mr. Ball on or about June 6, 1985,
from Mr. Ball's personnel and company records.
3.
In light of the difficulties and contingencies necessarily attendant to litigation
of the subject case together with the complex
factual disputes requiring many witnesses and the
minimal nature of the economic loss to the complainant which will be entirely recompensed as a
result of this settlement, the parties agree that
the proposed settlement in this case is appropriate in consideration of all the circumstances.
4. The Secretary recognizes that satisfaction of the miner's interests is paramount to the
imposition
a discrimination civil money penalty. The miner's interests in this case are
well served by the settlement in which he
recovers lost wages and has all adverse references to the circumstances involved in his suspension removed from his employment record. The
Secretary agrees to waive the proposed discrimination c
1 penalty because such a waiver is
necessary to achieve a prompt and favorable
disposition of the miner's claim. The Secretary
asserts that the respondent has no known history
of previous violations of section 105(c) of the
Act.
5.
In consideration of the willingness of
the respondent to resolve the claim quickly by
payment of restitution to the complainant and
the willingness of the respondent to take what
other action is necessary to make the complainant
whole, the Secretary agrees to waive imposition
of any civil penalty. The sum being advanced by
the respondent to the benefit of the miner is
such that all purposes which would be served by
a civil penalty assessment in this case are
sati ied.
Since section 105(c) of the Act is
uniquely designed to benefit individual miners

1168

as well as the public interests by restitution to
those affected by violations of section 105(c) of
the Act, the Secretary believes that such purposes
are fulfilled in this case by the settlement terms.
6.
It is the parties' bel
that approval of
this settlement is in the public interest and will
further the intent and purpose of the Federal Mine
Safety and Health Act
1977.
7. Each party agrees to bear its own fees and
other expenses incurred by such party in connection
with any stage of this proceeding.
Conclusion
After careful review and consideration of the settlement
terms and conditions executed by the parties in this proceeding, including Mr. Ball, I conclude and find that it reflects
a reasonable resolution of the complaint :filed by MSHA on
Mr. Ball'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.
ORDER
The proposed settlement IS APPROVED.
Respondent IS
ORDERED AND DIRECTED to fully comply forthwith with the terms
of the agreement. Upon full and complete compliance with the
terms of
agreement, this matter is dismissed.
The
scheduled hearing is cancelled.

~-i~d[~
Administrative Law Judge

Distribution:
Theresa Ball, Esq., Off
of the Solicitor, U.S. Department of
Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203
(Certif
Mail)
H. Juanita M. Littl ohn, Esq., Arch of Kentucky, Inc.,
200 North Broadway, St. Louis, MO 63102 (Certified Mail)
/fb

1169

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

22041

AUG 6 1986
TUNNELTON MINING COMPANY,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. PENN 86-65-R
Citation No. 2696550; 12/11/85

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

Docket No. PENN 86-66-R
Citation No. 2696551; 12/11/85
Docket No. PENN 86-67-R
Citation No. 2696552; 12/11/85
Docket No. PENN 86-68-R
Citation No. 2696554; 12/12/85
Docket No. PENN 86-69-R
Citation No. 2696555t 12/13/85
Docket No. PENN 86-70-R
Citation No. 2696556; 12/13/85
Docket No. PENN 86-71-R
Citation No. 2696557; 12/13/85
Docket No. PENN 86-108-R
Citation No. 2696464; 2/10/86
Docket No. PENN 86-111-R
Citation No. 2696473; 2/27/86
Marion Mine

ORDER OF DISMISSAL
Before:

Judge Koutras

These proceedings concern notices of contests filed by
the Contestant Tunnelton Mining Company pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977,
challenging the validity of nine section 104(a) non-uS&S"

1170

citations issued by an MSHA inspector at its Marion Mine on
December 11, 12, and 13, 1985. The citations charge Tunnelton
with nine alleged violations of mandatory safety standard
30 C.F.R. § 75.1101-5(a), because of its purported failure to
provide foam generator fire supression devices capable of
discharging foam to certain electrical components used in conjunction with certain belt conveyor drives at different locations in the mine.
Tunnelton filed a motion for summary decision and requested
expedited consideration in light of the abatement deadlines
imposed by MSHA. The abatement times were extended by MSHA, and
extensions were also granted for the purpose of permitting MSHA
to file its responses to the request for summary decision.
Subsequently, the parties resolved the dispute and MSHA agreed
to accept Tunnelton's alternative means of compliance with the
mandatory safety standard in issue. At the same time, MSHA
vacated the contested citations, and the parties are now in
agreement that these contests may be dismissed.
ORDER
In view of th~ fact that the disputed citations have now
been vacated, and with the agreement of the parties, these
contests ARE DISMISSED.

~,~/Ltl(~~
.~fgeft. t~utras

Administrative Law Judge

Distribution:
Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut
Avenue, N.W., Washington, DC 20036 (Certified Mail)
Joseph T. Kosek, Esq., Pennsylvania Mines Corporation, P.O.
Box 367, Ebensburg, PA 15931 (Certified Mail)
Covette Rooney, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
/fb

1171

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

AUG 6 1986
GREENWICH COLLIERIES,
DIVISION OF PENNSYLVANIA
MINES CORPORATION,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. PENN 86-135-R
Order No. 2689830-02; 3/31/86
Docket No. PENN 86-136-R
Order No. 2689831-02; 3/31/86

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

Docket No. PENN 86-137-R
Order No. 2689832-02; 3/31/86
Docket No. PENN 86-138-R
Order No. 2689833-02; 3/31/86
Docket No. PENN 86-139-R
Order No. 2689834-02; 3/31/86
Docket No. PENN 86-140-R
Order No. 2689835-02; 3/31/86
Docket No. PENN 86-141-R
Order No. 2689837-01; 3/31/86
Docket No. PENN 86-142-R
Order No. 2689838-01; 3/31/86
Docket No. PENN 86-143-R
Order No. 2689839-01; 3/31/86
Docket No. PENN 86-144-R
Order No. 2689840-02; 3/31/86
Docket No. PENN 86-145-R
Order No. 2689884-01; 3/31/86
Docket No. PENN 86-146-R
Order No. 2689885-02; 3/31/86
Docket No. PENN 86-147-R
Order No. 2689886-02; 3/31/86

1172

Docket No. PENN 86-148-R
Order No. 2689887-02; 3/31/86
Docket No. PENN 86-149-R
Order No. 2689888-02; 3/31/86
Docket No. PENN 86-150-R
Order No. 2689891-01; 3/31/86
Docket No. PENN 86-151-R
Order No. 2689892-01; 3/31/86
Docket No. PENN 86- 2-R
Order No. 2689893-01; 3/31/86
Docket No. PENN 86-153-R
Order No. 2689894-01; 3/31/86
Docket No. PENN 86-154-R
Order No. 2689895-02; 3/31/86
Docket No. PENN 86-155-R
Order No. 2690021-02; 3/31/86
Greenwich No. 2 Mine
ORDER OF DISMISSAL
Before:

Judge Koutras

These proceedings concern Notices of Contests filed by the
contestant pursuant to section lOS(d) of the Federal Mine Safety
and Health Act of 1977, challenging the legality of 21 section
104(d) (2) orders issued by MSHA inspectors for alleged violations
of the training requirements found in 30 C.F.R. § 48.6. The
orders were issued because of the alleged failure by the contestant to train newly employed experienced miners.
The alleged
violations were originally issued as section 104(a)
tations,
but were subsequently modified by MSHA to section 104(d) (2)
orders after an MSHA "manager's conference."
The contestant raised several defenses to the issuance of
the orders, including claims that they were not issued promptly
as required by section 104(d) (2), and that they were not issued
as a result of any inspection as required by that section. The
cases were scheduled for hearing in Indiana, Pennsylvania, during the term August 5-7, 1986, but the hearings were continued
after the parties informed me of a possible settlement of the
dispute. As a result of further conferences by the parties,

1173

they informed me that MSHA has agreed to modify each of the
orders to a non-S&S section 104(a) citation, with a reduction
of the gravity findings to "No Lost Workdays." This agreement
was confirmed by letter dated August 1, 1986.
In view of the
modification of the contested orders, the parties agree that
these contests may now be dismissed.
ORDER
In view of the foregoing, the Notices of Contest filed by
the contestant in these dockets ARE DISMISSED.

,~*'-tL~-r
Administrative Law Judge

Distribution:
Joseph T. Kosek, Esq., Greenwich Collieries, P.O. Box 367,
Ebensburg, PA 15931 (Certif
Mail)
Deborah A. Persico, Esq.,
ice of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
/fb

1174

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

22041

AUG 6 \986
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 85-169
A.C. No. 46-02493-03536
Quinland No. 1 Mine

v.

QUINLAND COALS, INC.,
Respondent
DECISION
Appearances:

Sheila K. Cronan, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, VA, for
Petitioner;
William D. Stover, Esq., Quinland Coals, Inc.,
Beckley, WV, for Respondent

Before:

Judge Fauver

The Secretary of Labor brought thi~ action for civil
penalties under section lOS(d) of the Federal Mine Safety
and Health Act
1977, 30 u.s.c. § 801, et seq. 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 FACTS
1. Respondent's Quinland No. 1 Mine was formerly owned and
operated by Westmoreland Coal Company under the name of
Ferrell Mine.
1/ Respondent's Objection to Acceptance of Posthearing Evidence
Is rejected. The preshift reports of Dayton Lane are the best
evidence of
reports filed by Lane.
They are received as
evidence in this proceeding. Respondent's Motion for a
Protective Order is moot, because no other preshif t reports
Lane were submitted by the Secretary after such motion
and before entry of this Decision.

1175

2.
In November, 1980, at Westmoreland's mine there was
a methane explosion that killed five people. After the
explosion and recovery
the bodies, seven seals were
installed in the Main East area of the mine to seal off the
explosion area from the active workings.
The atmosphere in
the area behind the seals consists of a high level of methane
and a low level of oxygen.
This is desirable because an
explosive concentration of methane is between five and
fifteen percent.
That is, if methane is above 15 percent,
or below five percent, it is scientifically considered to be
nonexplosive.
If the oxygen level is kept below sixteen
percent, it is also scientifically considered that there
. will not be enough oxygen for combustion.
It is important
for the seals to operate effectively to prevent the atmosphere
behind them from leaking out into the active workings, since
th.e high methane and low oxygen content would present a
serious hazard to persons in the active workings.
3. As a result of the 1980 accident, the mine was
designated by MSHA to receive a spot inspection every five
days pursuant to§ 103(i) of the Act.
In a spot inspection,
an inspector takes samples of the atmosphere behind the
seals, checks the seals to make sure that they are not
leaking or being crushed and that the roof conditions are
adequate, and tests to be sure the methane is staying behind
the seals.
4. On October 11, 1984, Inspector Ernest Thompson made
a spot inspection of Respondent's mine under§ 103(i). In
the Main East area he took samples of the atmosphere from
behind the seals. At the No. 7 seal he observed a large
roof fall in the entry, which he described as follows in
his testimony at the hearing:
There was cribs at the end of the falls.
They had
all the weight they could stand.
They were crushing.
There was eight or ten posts broke in the center of
the entry. The top was broke all to pieces, and I
could hear the gas hissing out of the top coming
through the cracks
the top (Tr. 24).

1176

*

*

*

*

Their top had dropped down.
Part of the top dropped
down approximately an inch from the remainder.
The
roof, in my opinion, had already fallen.
It wasn't
on the mine floor.
It was leaning on what supports
they had in there and the seal.
It was crushing out
the seal (Tr. 26).
Inspector Thompson also observed that the broken posts had
not been replaced.
In his opinion, the condition had been
in existence
some time because the broken posts had
a lot of dust on them, leading him to believe that they had
been broken for at least a month to two months.
The roof
site was an active working place where preshift examiners.
and other workers were required to go on a regular basis.
Inspector Thompson found an inadequate roof condition,
and issued § 104 (d) (1) order (No. 2144040) charging a
violation of 30 C.F.R. § 75.200, alleging that this was a
significant and substanti
violation, that negligence was
high, and that the violation was reasonably likely to result
in a fatal injury.
5. On the same day Inspector Thompson issued§ 104(d) (1)
Order No. 2144047,
leging a violation of 30 C.F.R. §
75.303, as follows:
The preshift examination made by Dayton Lane on
10/10 and 10/11/84 for No. 7
in Main East
area was inadequate in that No. 7 seal was leaking
excessively (more than 5% methane was detected) and
the mine roof was inadequately supported and Mr.
Lane certifi
this area to be clear.
Inspector Thompson testified that
tes
the air for methane
about s
feet from
No. 7 seal and detected methane in the
area. He took a bottle sample which, when analyzed, showed a
methane level of 5.64 and oxygen level of 19.21 (Ex. G-9).
This was an explosive level of methane and a low level of
oxygen.
6.
The preshift examiner, Dayton Lane, had certified
the area to be clear during the examination he conducted
between 5:00 and 7:50 a.m. on October 11, 1984 (Ex. G-15).

1177

DISCUSSION WITH FURTHER FINDINGS
in Order No.
The cited standard, 30 CFR § 75.200, requires, in part,
that "the roof and ribs of all active underground roadways,
travelways, and working places be supported or otherwise
controlled adequately to protect persons from falls of the
roof or
." I credit Inspector Thompson's testimony as
to the
conditions and find that the roof support in the
No. 7 s
entry was inadequate to protect persons from roof
falls. There were broken timbers that had not been replaced,
contrary to Respondent's roof control plan.
The roof was
breaking or damaging the
, and methane was leaking into
the active working area.
This was a dangerous condition.
Respondent was negligent in allowing this violation to
exist. Dust on the broken posts indicated that the condition
had been in existence for a long time.
In addition, Respondent's
witness McClure tes fied that the condition of broken
timbers was longstanding, having been in existence when he
started work there in August of 1984. Although McClure was
of the opinion that the unbroken timbers and cribs provided
adequate roof support, he was aware that the roof control
plan required that broken timbers be replaced and that there
were some broken timbers that had not been replaced as of
October 11, 1984.
The Preshift Examination Cited
in Order No. 2144047
The
standard, 30 CFR § 75.303, requires that
within three hours immediately preceding the beginning
any shift a certified person examine all active workings of
the mine, examine seals to determine whether they are functioning
proper , and examine active roadways, travelways and approaches
to abandoned areas. Dayton Lane tes fied that he was the
cer fied person responsible for conducting the preshift
examination of the Main East seals on October 11, 1984. He
conducted a pre
ft examination between 5:00 and 5:45 a.m.
Although he was aware of the broken timbers, roof fall, and
cracks in the roof in the area of the No. 7 seal, he did not
report these conditions in his preshift report.
Instead, he
noted "clear 11 in the preshift mine examiner's book for that
day (Ex. G-15, p. 4).
It was his opinion that the roof was
adequate
supported.

1178

I credit the inspector's testimony on this point~ and I
find that the roof was inadequately supported and that this
condition should have been reported in Lane's preshift
report.
It was a violation of § 75.303 to fail to report
this condition.
However, the methane hazard found by Inspector Thompson
does not establish a violation
the preshift examination
requirements cited in Order No. 2144047. As noted above,
the preshif t examiner is required to examine seals to
determine whether they are functioning properly. This would
include examining them to make sure they are not leaking
methane.
Inspector Thompson heard a hissing sound from the
cracks in the roof above the seal. This fact, when combined
with the high methane reading obtained from the methane
detector and bottle sample, establishes that methane was
leaking at the time Inspector Thompson was there. However,
methane leakage was not a constant condition, and there is
no proof that there was methane leakage at
time of Lane's
preshift examination.
Lane testified that he tested for methane at the No. 7
seal and found none, and he did not hear hissing in that
area.
There is no evidence that conditions were otherwise
when he made his inspection.
The Test of a Significant
and Substantial Violation
In Secretary of Labor v. Consolidation Coal Company, 6
FMSHRC 189 (1984), the Commission held that the Secretary
must prove the following elements to establish that a violation
of a safety standard is significant and substantial:
(1)
the violation of a safety standard; (2) a discrete safety
hazard, that is, a measure of danger contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in injury; and (4) a reasonable
likelihood that the injury will be of a reasonably serious
nature.

1179

The roof conditions cited in Order No. 2144040 created
the danger of a roof fall.
Since a number of people (about
seven) regularly went into this area, there was a reasonable
likelihood that one of them would be injured if a roof fall
occurred. The type of injury which could result, of course,
could be a fatality. Also, the roof conditions were allowing
methane to escape. This could result in an explosion or, if
a person were present when a large quantity of gas was
escaping, he or she could be kil
as a result of low
oxygen.
The practice cited in one part of Order No. 2144047,
i.e., failing to conduct an adequate preshift inspection of
roof, created a serious hazard.· The purpose of the
shift examination is to detect and report hazardous
conditions, so that corrective measures can be taken. The
failure to report the dangerous roof condition could have
signi cantly and substantially contributed to a serious
mine accident.
However, the second part of Order No. 2144047, the
failure to report leaking methane, was not proved by a
preponderance
the evidence.
Respondent is a large operator. At the time of the
inspection, Quinland Mine No. 1 was produing about 800,000
tons of coal a year and employed about 150 employees.
Considering all of the criteria of section llO(i)
the Act a c
1 penalty of $850 is ASSESSED
the roof
violation (30 C.F.R. § 75.200).
Considering all of the criteria of section llO(i) of
the Act, a civil penalty of $450 is ASSESSED for the preshift
examination violation (30 C.F.R. § 75.303). This penalty is
reduced from the Secretary's proposal of $900 because of the
failure to prove the part of the charge concerning failure
to report a methane hazard in the preshift
t.
CONCLUSIONS OF LAW
1. The Commission's administrat
jurisdiction in this proceeding.

1180

law judge has

2.
Respondent violated 30 C.F.R. § 75.200 on October
11, 1984, as charged in Order No. 2144040.
3. Respondent violated 30 C.F.R. § 75.303 on October
11, 1984, as charged in that part of Order No. 2144047 pertaining
to a roof hazard, but the Secretary did not meet his burden
of proving a violation as to the part alleging a failure to
report a methane hazard.
ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay the
above-assessed civil penalties in the total amount of $1,300
within 30 days of this Decision.

. '1

~~

liam Fduver
Administrative Law Judge
Distribution:
Sheila K. Cronan, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wison Boulevard, Arlington, VA 22203 (Certified
Mail)
William D. Stover, Esq., Quinland Coals, Inc., 41 Eagles
Road, Beckley, WV 25801 (Cert1fied Mail)
kg

1181

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

EMERY MINING CORPORATION,
Contestant

AUG 7 1986

CONTEST PROCEEDING
Docket No. WEST 86-126-R
Citation No. 2834575; 4/15/86

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
and
UNITED MINE WORKERS OF AMERICA,:
(UMWA),
Intervenor

Deer Creek Mine

DECISION
Appearances:

John A. Macleod, Esq., and Ellen Moran, Esq.,
Crowell & Moring, Washington, D.C.,
for Contestant;
Edward Fitch, Esq., Office
the Solicitor, U.S.
Department of Labor, Arlington, Virginia,
for Respondent;
Mary Lu Jordan, Esq., United Mine Workers of
America, Washington, D.C.,
for Intervenor.

Before:

Judge Morris

This is a contest proceedings initiated by contestant Emery
ning Corporation pursuant to § 105(d) of t
Federal Mine
ety and Health Act of 1977v 30 U.S.C. § 801 et~., (the Act).
Emery has contested a citation issued under § 104(a) of the Act
by the Mine Safety and Health Administration, (MSHA), on April
15, 1986.
The citation alleged Emery violated § 103(f) of the Act in
refusing to permit an international representative of the United
Mine Workers of America (Intervenor UMWA) to accompany an MSHA
inspector on a regular inspection of Emery's Deer Creek mine.
Emery, in its notice of contest, asserts that it did not
violate § 103(f) of the Act because it permitted a representative
authorized by his miners to accompany the inspector. Further,
Emery permitted the UMWA representative (Mr. Rabbitt) to
accompany the inspector subject to his compliance with Emery's
policy at the mine. Emery's policy requires that a written
notice be given at least 24 hours before the UMWA representative
visits the mine. Further, the policy requires that the UMWA representative sign a release and waiver form before entering the
mine.

1182

(The form itself is entitled "release and waiver." A hazard
training check list also appears on the form. The witnesses in
this case at various times referred to the form as a "waiver," a
"release" and as a "hazard checklist." For the convenience of
the reader all such references are to the document received in
evidence as Contestant Exhibits 3 and 6). The portion of the instrument particularly relied on by Emery provides as follows:
Waiver of Liability
The undersigned, in consideration of being allowed to come
upon the
Deer Creek
mine property (insert name of mine),
hereby forever releases, discharges and waives as to Emery
Mining Corporation ("Emery"), any and all claims rights of
causes of action that the undersigned now has or may hereafter acquire against Emery on account of any damages sustained or injuries suffered, presently or hereafter, while
present upon or within the mine property. The undersigned
further agrees to hold Emery harmless on account of any and
all liability which may attach to Emery on account of
damages sustained or injuries suffered by the undersigned
while upon or within the mine property. All references to
Emery shall include its officers, directors, shareholders,
employees and agents.
Emery, in its notice of contest, asserts that Mr. Rabbitt
failed to comply with Emery's notice and waiver requirements.
When MSHA supported Mr. Rabbitt and issued a citation Emery
permitted Mr. Rabbitt to enter the mine without signing the required release form.
In its contest seeking to vacate this citation Emery insists
that its requirements are reasonable and prudent; further, Emery
asserts it did not violate§ 103(f), the statutory grant of walkaround rights.
Section 103(f) of the Act, 30 U.S.C. § 813(£), the statutory
provision in issue here, provides as follows:
Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by his miners shall be given an opportunity to accompany the Secretary or his authorized representative
during the physical inspection of any coal or other mine
made pursuant to the provisions of subsection (a), for
the purpose of aiding such inspection and to participate
in pre- or post-inspection conferences held at the mine.
Where there is no authorized miner representative, the
Secretary or his authorized representative shall consult
with a reasonable number of miners concerning matters of
health and safety in such mine. Such representative of

1183

miners who is also an employee of the operator shall
suffer no loss of pay during the period of his participation in the inspection made under this subsection. To
the extent that the Secretary or authorized representative of the Secretary determines that more than one representative from each party would further aid the inspection, he can permit each party to have an equal
number of such additional representatives. However, only
one such representative of miners who is an employee of
the operator shall be entitled to suffer no loss of pay
during the period of such participation under the provisions of this subsection. Compliance with this subsection shall not be a jurisdictional prerequisite to
the enforcement of any provision of this Act.
The Hearing
A hearing on the merits commenced in Denver, Colorado on May
14, 1986. The evidence was essentially credible and uncontroverted.
The Secretary's Evidence
Vern Boston, an MSHA inspector for eight years, was the sole
witness called by the Secretary.
Inspector Boston, a person experienced in mining, has been
stationed in the Orangeville, Utah MSHA off ice for the last two
years (Tr. 30, 31).
On April 15, 1986 the inspector met Mr. Rabbitt at the mine
gate. Boston knew Rabbitt by reputation, but he didn't know if
Rabbitt had ever previously been in the Deer Creek mine. Rabbitt
introduced himself as the International Representative of the
UMWA. The inspector knew Rabbitt had been in Utah for sometime.
The two men agreed that Rabbitt would travel with the inspector
during the inspection (Tr. 32-35, 52). Dixon Peacock, a representative of Emery's safety department who frequently accompanied the inspector, concurred.
After changing clothes the inspector entered the company
safety department. Mr. White, the Deer Creek mine manager~/,
stated he had a problem with Rabbitt accompanying the inspector.
Mr. White recognized Rabbitt as a member of the International
Health and Safety Department of the UMWA but he did not believe
Rabbitt was a representative of the miners because he was not an
employee of the mine. Also the company had its own miner representative on the property. In addition, he had come on the
property without giving any advance notice (Tr. 32-38).

1/ As mine manager he is in charge of all phases of the mining
operation (Tr. 37}.

1184

At this point the inspector issued a § 104(a) citation
alleging a violation of § 103(f) of the Act. White was given ten
minutes to abate the citation. White agreed Rabbitt could accompany the inspector. The citation was then terminated (Tr. 33).
White then indicated Rabbitt should sign a waiver form.
Inspector Boston checked with his supervisor. He was directed to
proceed. White asked for an additional citation but the inspector added the waiver allegation to the prior citation. 2;
Rabbitt did not sign the waiver and Emery abated the citation by
permitting Rabbitt to accompany the inspector (Tr. 33-42, 61).
Boston believed it was clear to White that if he did not permit
Rabbitt to enter the mine without signing the waiver the inspector would issue a closure order. But it was not clear to the
inspector at the time whether White knew that the closure order
would be a "no-area affected order"~/ (Tr. 63).
This was a AAA inspection. It was not an inspection under
section 103(g) of the Act. Rabbitt was not abrasive and acted in
an orderly manner (Tr. 45, 51). Boston had been instructed that
international representatives are miners' representatives (Tr.
55) •
2/ After the inspection the inspector decided he was not
satisfied with the wording of the original citation, so he voided
the original and issued a new citation No. 2834575 (Tr. 34-44,
49, 64-67; Gov't. Ex. 5).
3/ A "no area affected order" arises from the Secretary's
interpretative bulletin published in F.R. Vol. 43, No. 80 April
25, 1978 and contained in Government Exhibit 4. It provides in
part as follows:
It should be noted that section 104(b) of the Act provides
for issuance of withdrawal orders if an inspector finds that
a violation described in a citation has not been abated.
Pursuant to the requirements of section 104(b), orders under
that provision will be issued in cases where there has been
a failure to abate violations of section 103(f). However,
actual withdrawal of miners will not ordinarily occur in
cases arising under section 103(f), because section 104(b)
also requires the inspector to determine the extent of the
area of the mine affected by the violation.
In most cases,
the area(s) of the mine affected by an operator's refusal to
permit participation or to compensate the representative(s)
under section 103(£) would be a matter of conjecture and
could not be determined sufficient specificity. However,
cases may arise where a particular condition or situation,
in the opinion of the inspector, cannot be adequately evaluated in the absence of a representative of miners. In such
cases, the area affected by a refusal to permit participation could be determined, and physical withdrawal of
miners in the affected area would be directed in the order.

1185

In previous numerous inspections of the Deer Creek mine
inspector Boston had frequently been accompanied by representatives of the miners at that mine. This function is usually
performed by the same individuals who are employees of Emery (Tr.
53, 54). On this inspection he was accompanied by Mr. Larsen, an
employee of Emery (Tr. 67). The inspector had not previously
been accompanied by a non-employee asserting that right as a
representative of the miners.
In the inspector's opinion Rabbitt did not have any special
skills, talent or knowledge of the mine that would cause the
inspection to be any different from what it would have been
without him (Tr. 55). Further, management representatives did
not aid the inspector. But generally speaking, miners representatives and company representatives assist the inspector in
performing broader, more comprehensive and more complete inspections (Tr. 68).
Boston agrees that when § 103(f) refers to "his miners" the
reference is to miners employed at Deer Creek (Tr. 57). · But in
Boston's view the context of that section of the Act refers to
representatives of miners on the international level. Boston had
no knowledge whether Rabb t's presence had been requested by the
Deer Creek miners.
Further, he did not take steps to ascertain
if Rabbitt had been designated in any Part 40 filing by the Deer
C
miners (Tr. 57, 58).
UMWA's Evidence
Thomas J. Rabbitt and Joseph Main testified for the UMWA.
Thomas J. Rabbitt has been employed by the UMWA for seven
and one half years as an International Health and
ety Representative (Tr. 71).
He.reports to Joseph Main, administrator of the UMWA Health
and Safety department (Tr. 117). Rabbitt has held various
positions involving matters of safety. He also investigates
accidents, disasters, fires and explosions (Tr. 72). Investigations have included the Homer City mine disaster, Grenwich
Colleries as well as numerous accidents and fatalities. He has
held virtually every job in a coal mine.
In addition, he served
as a safety committeeman for three years (Tr. 72, 73). His
training includes seminars sponsored by MSHA.
These are the same
courses given the MSHA inspectors (Tr. 74).
On June 12, 1985 his supervisor assigned him to assist in
the recovery of bodies and to monitor the investigation of the
Wilberg mine disaster of December 19, 1984 (Tr. 74, 87, 118,
119).

1186

Rabbitt now resides in the vicinity of the Wilberg mine.
Usually on a daily basis he goes underground and consults with
the safety committees. He has accom~anied federal inspectors on
103{i), 103(g), 103(a) inspections. I
Rabbitt was not restricted at the Emery mine until three or four months ago (Tr.
75, 118). He normally would enter the mine at 8 o'clock, contact
the safety director and then go underground (Tr. 75). His underground work included investigations and search for the Wilberg
victims (Tr. 75). Three or four months after he arrived in Utah
the Cottonwood mine was opened.
(~he Cottonwood is a part of the
now sealed Wilberg mine). In the Cottonwood he has gone on inspections in coal producing sections that were unrelated to the
recovery operations~/ (Tr. 76).
In January 1986 Rabbitt had written Emery's mining management concerning conditions within the sealed area of the Wilberg
mine (Tr. 79). A copy of the letter went to various federal and
state officials as well as the UMWA office (Tr. 80; UMWA Ex. 2).
The letter, directed to Emery mine manager John Boylen, was sent
after a meeting with Emery's mine superintendent. The letter
complained about the seals at #37 crosscut. Approximately three
weeks later the seals were isolated and regulated (Tr. 81).
After the January 20th letter Emery began to restrict
Rabbitt's access to the mine. He was stopped at the gate and
manager Boylen had to be notified before he could enter. He
would then have to go to Boylen or Neldon Sitterud's office (Tr.
79, 107, 108). In the sample room a sign stating "Authorized Persons Only" appeared. Rabbitt accepted Boylen's explanation of the situation and he had no problem with it (Tr .•
107, 108).
On March 3, 1986 Rabbitt again wrote to Emery's mine manager
at the Wilberg and Cottonwood mines. This letter probably caused
the most concern to management. It addressed certain technical
matters and its purpose was to verify a conversation so there
would be no later misunderstanding <Tr. 85, 109; UMWA Ex. 3).
The process and procedure of entering the mine had worked
smoothly for a period of time but it became less smooth after
March 3.
The totality of the letters in early March dealt with full
notice and compliance with MSHA's regulations which had not been
fully complied with in the past (Tr. 109).

ii

These inspections are described in the transcript at page
146: a 103(i) is a special five day spot inspection required at
the Wilberg mine; a 103(g) is a special request inspection by the
representatives of the miners or a miner; a 103{a) is a regular
quarterly MSHA inspection of the entire mine.
5/ Related cases filed simultaneously with this decision involve
Emery's Wilberg mine.

1187

On March 4 Rabb t learned of a request by Emery to maintain
less than a specific width, length and height in an escapeway 6;
(Tr. 110, 111). No one initially objected to Rabbitt accompanying the team to the area involving the request. A discussion occurred whether this was a right under the UMWA contract
or§ 103(f). This was the first time§ 103(f) was expressly
discussed (Tr. 112, 121, 148).
About 45 minutes later manager Boylen refused to let Rabbitt
go with the group (Tr. 112, 148). At that point he renewed his
24-hour prior notice requirement. Before March 5 Rabbitt had
total access to the mine and no 24-hour prior notice had been
required (Tr. 113, 130, 149). Rabbitt was concerned that Emery's
policies might adversely affect his ability to represent the UMWA
in investigating this disaster in Utah as well as any other
disasters in the future (Tr. 114). But he didn't know if the
policy was directed at his activities (Tr. 122, 123).
Rabbitt also wrote to manager John Boylen on April 12, 1986
concerning sealed areas of the Wilberg mine (Tr. 105: UMWA Ex.
6). The letter followed a conversation with Emery officials CTr.
106). About a week before April 15, 1986 Rabbitt learned from
Frank Fitzek (chairman of the Deer Creek local union safety committee) that MSHA inspectors were writin~ numerous citations and
orders alleging unwarrantable failures. I
The local union
wanted Rabbitt's assistance in looking iiito these matters. The
local union felt the matters were serious.
It was not a pointblank request. But Rabbitt indicated he'd be there in the next
week or two {Tr. 88, 125, 126).
The day before the MSHA inspection of April 15 Rabbitt
called Fitzek and advised him he would respond to the request the
next day.
Prior to the MSHA inspector's arrival at the gate
Fitzek appeared and told Rabbitt that he had notified various
management personnel including White and Peacock. White was
reported to have been disturbed at the arrangement (Tr. 89).
~/

30 C.F.R. § 75.1704-1 authorizes the MSHA district manager to
approve an escapeway not in compliance with the specified
criteria (Tr. 110).
·
7/ The Federal Mine Safety and Health Review Commission has
~efined the term "unwarrantable failure", as contained in
§ 104(d)(l) of the Act, to mean that the operator failed to
abate the condition or practices constituting a violation and
knew or should have known the condition existed or that it failed
to abate because of a lack of due diligence or indifference or
lack of reasonable care, United States Steel Corporation, 6
FMSHRC 1423, 1436 (1984); Westermoreland Coal Company, 7 FMSHRC
1338, 1342 (1985) citing Zeigler Coal Co., 7 IBMA 280 (1977).

1188

At that point Fitzek joined the day shift and inspector
Boston arrived. Rabbitt introduced himself and he proceeded onto
the property to obtain clearance. About five minutes later
Boston returned with Mark Larsen, a safety committeeman at the
mine (Tr. 90). In discussing the matter White, the Deer Creek
mine manager, questioned Rabbitt's authority to enter under the
contract. B; Rabbitt indicated his authority was under § 103(£)
of the Act-(Tr. 90). After the men discussed the matter Boston
issued a citation and he gave White 10 minutes to abate (Tr. 91).
White then relented but told Rabbitt he would have to sign a
waiver of liability form. Discussion continued. Boston then
called his supervisor. White requested another citation. Boston
complied and issued a citation (Tr. 91, 92).
Mark Larsen (representative of the miners from the safety
committee), Terry Jordan and Dixon Peacock (for Emery) and
Rabbitt accompanied the inspector underground (Tr. 93). While
underground one citation was written concerning the company's
roof control plan. The inspection team went to a specific area
because Emery had requested that MSHA abate certain prior
citations and orders in that area (Tr. 93). During this inspection Boston asked for and received opinions from those
present (Tr. 94). Rabbitt also pointed out one roof control violation to Boston (Tr. 94).
Rabbitt accompanied Boston until 5 p.rn. that day (Tr. 95).
At about 2:15 p.m. White handed Rabbitt a letter. The original
had been forwarded to the safety committee of the Union.
Rabbitt's copy stated that under the wage agreement Emery required 24-hour notice in writing before any international health
and safety representative could enter the mine. White also
mentioned the waiver requirement (Tr. 96, 97; UMWA Ex. 4).
Rabbitt had never previously knowingly 9; signed a waiver at
the Deer Creek mine or elsewhere. The first-time he heard of the
waiver was on March 11 or 12. However, he signs a check in/check
out form which is common at all mines (Tr. 98, 99, 123, 142; UMWA
Ex. 5). Rabbitt next saw the waiver release form on April 15.
He declined to sign it because he thought his supervisors should
approve such action (Tr. 133, 134; Contestant Ex. 3).

8/ The contract referred to by White was received in evidence
and the scope of its terms are not an issue in the case. The
agreement is entitled "Bituminous Coal Wage Agreement of 1984
between Emery Mining Corp and the International Union United Mine
Workers of America". Article III, section (d) of the contract
provides the conditions under which the UMWA may have access to
the mine (UMWA Ex. 7).
·
9/ In fact, on January 10, 1986, March 7, 1986 and April 15,
1986 Rabbitt had signed a "Visitor Release" form that was kept in
a clipboard at the Deer Creek mine (Tr. 100, 101, 137, 138, 139,
142~ Contestant Ex. 4; UMWA Ex. 5).
1189

Before April 15, specifically in January and February (or
early March) 1986, Rabbitt visited the Deer Creek mine (Tr. 102).
The company had requested, under§ 10l(c), 10; a modification to
use a two-entry longwall mining system. Rabbitt was directed by
his superior in Washington, D.C. to investigate the matter and
report back to him (Tr. 102, 103, 124>. On the first occasion he
was underground for five hours. He met with Earl White and
persons in the safety department. He also met with the
superintendent and persons in t
engineering department (Tr.
103, 124). On the second occasion he was underground nine hours.
He entered various areas of the Deer Creek mine as a resu
of
this investigation (Tr. 103, 124). The Union opposed the
petitions for modification that Emery had filed at the Cottonwood
as well as the Deer Cr
mines (Tr. 103). In October 1985
Rabbitt had done a similar investigation at the Deer Creek mine.
On those occasions, before April 15, there was no discussion
about Rabbitt's ability to conduct such investigations or to
enter the property {Tr. 104).
Rabbitt believes his right of entry under § 103(f) can be
conditioned on reasonable restrictions such as eye protection
requirements (Tr. 135, 136). He didn't feel the hazard training
checklist on Emery's release form was necessary (Tr. 136;
Contestant Ex. 3).
Joseph Main testified that he is the administrator of the
Department of Occupational Safety and Health for UMWA (Tr. 152).
Thirty-five members of his staff of 40 are trained, experienced
and educated international health and safety representatives who
basically represent the UMWA members on health and safety matters.
Their duties include conducting inspections at the mines,
assisting plan approvals, processing petitions for modifications
filed by the operator, providing assistance to local unions and
guidance to the local safety committees (Tr. 154, 155). They
also investigate mine disasters, injuries and accidents that
occur (Tr. 154). The local union s ety committee is comprised
of miners employed full time at the mine site. The local members
serve in an extra capacity as a representative {Tr. 155). The
background educational level of the local mine committee is less
than the
1th and safety representatives on the UMWA staff (Tr.
155).
Main estimates that the UMWA staff is in the field on a
daily basis in some type of § 103(f) activity. There are
numerous events which trigger a participation with an MSHA inspection. These include investigations of an accident, injury or
an explosion, a regular inspection, or an inspection made for
some special problem. In addition, participation may occur where
the mine operator wishes to modify the law. Many mining plans

!.QI Section 101(c) of the Act authorizes the Secretary to modify
the application of any mandatory safety standard upon petition of
the operator or the representative of miners subject to certain
conditions.
1190

such as ventilation, blasting, roof control, and training require
continual review (Tr. 154-156). If it is believed that a violation exists it is normal procedure for the local union committee or the international representatives to have the conditions checked out. From time to time the UMWA representatives
travel with the MSHA inspectors to determine the existence or
seriousness of the condition (Tr. 156-157).
The historical application of § 103(f) is to provide an
ability for the representatives of miners to assist MSHA to carry
out its function to protect miners' lives. (Tr. 157). Those
representatives of miners who are also employees of the operator,
are subject to a certain amount of control by the operator (Tr.
157). Such controls may inhibit the miners from expressing whatever views they may have. However, confidentiality is provided
for a complaining witness.
In addition, there are extensive
provisions 11; to protect miners against discrimination. But
some miners-are reluctant to rely on this protection (Tr. 168,
169).
In addition, the local miners are not trained for analyzing
problems (Tr. 158). The members of UMWA's staff are trained
experts participating in various functions on a national scale.
If the staff was strictly restricted to the provisions of the
contract to gain access it would interfere with UMWA's ability to
protect the miners (Tr 159).
At times access to the mine is gained through the labor contract and at times under§ 103(f) (Tr. 159). The witness
described some circumstances of entries under§ 103(f)(Tr. 160,
161). In some instances committeemen have been afraid to call in
the international so the UMWA has bypassed the. contractual provisions and entered under a§ 103(f) inspection (Tr. 161). The
international uses different types of approaches, such as
checking abatement dates, etc., to find out when the MSHA
inspector will arrive at a mine site (Tr. 161). Witness Main was
not aware that any mine operators required the international representatives to sign waivers to gain access to the mine (Tr.
162). The only occasion known to the witness where an operator
questioned a Part 40 filing was evolved in the Consolidation Coal
Company case (cited, infra}.
Main assigned Rabbitt and several other representatives to
the Wilberg mine (Tr. 163). The representatives are charged with
coordinating the investigation.
Among other duties the international representatives also
inspect Emery's mines based on complaints they receive.
In
addition, they have helped recover the victims of the Wilberg
disaster (Tr. 163).

11/ Section 105(c), the discrimination section of the Mine Safety
Act.
1191

The designation of who constitutes the representatives of
the miners is basically a decision making process on the part of
the miners at the mine in conjunction with the organization
representation rights (Tr. 166).
The miners that are employed at the mine have a right to
designate their representatives. The UMWA has the inherent
right, based on its organizational structure and the fact that
they are the bargaining representative of those employees, to
have access to the mine under§ 103(f). In sum, once the miners
at the mine designate the UMWA International they designate it
for all provisions of the Act (Tr. 168).
The persons designated in the Part 40 regulations are filed
with MSHA and the operator. The filings under Part 40 provide a
mechanism for the miners at the mine to designate their representatives (Tr. 170).
Emery's Evidence
Earl R. White, James T. Jensen, Dave Lauriski, William
Ponceroff and John Barton testified for Emery.
Earl R. White, the mine manager and top management official
at the Deer Creek mine, is presently employed by Utah Power and
Light. On April 15, 1986 he served in the same capacity for
Emery Mining Company (Tr. 171, 172, 196). White is responsible
for the mine, its production, its surface facilit s and the
transportation of the coal (Tr. 173).
On April 15 at 7:45 a.m. Frank Fitzek (chairman of the local
safety committee) and Joe Crespin, (a member of the pit committee
12/), entered his office at the mine and stated that Tom Rabbitt
would be visiting the mine that day. This time
the day involved a shift change and White was very busy. White called
Terry Jordan,
ety engineer at Deer Creek, to inquire as to
what was "going on"; in addition, he asked if they had been
notified. At that particular time there was a closure order on
the third south belt, one of the main belt arteries in the mine
(Tr. 174, 175)0 On inquiry Fitzek denied inviting Rabbitt.
White asked what provision of the contract was involved. The
miner replied it was under paragraph 1 of Article III, section
(d) of the labor contract (Tr. 175, 176). White asked if they
had invited Rabbitt underground to look at something in
particular. His reply was nagative. They wanted Rabbitt to talk
to White. White complained about the short notice. The 24-hour
notice requirement had been relayed to White, Fitzek and others
12/ Pit committee is a group of individuals elected by miners.
The committee handles contract issues (Tr. 175, 195).

1192

about two weeks before 13; (Tr. 176). White agreed to meet with
Rabbitt. Fitzek left (Tr. 176, 177 ,_ 196).
White then contacted Dixon Peacock, the company's safety
engineer. Peacock stated Rabbitt was going to accompany Vern
Boston, the MSHA inspector (Tr. 177). White directed Peacock to
see if Boston had invited Rabbitt to make the inspection with him
(Tr. 177). Peacock reported back that Rabbitt had approached the
MSHA inspector (Tr. 178). White objected because Rabbitt was
supposed to be talking to him, not going on an inspection with
the federal inspector (Tr. 178). Since becoming the mine manager
on ~pril 29, 1985 White had not known of any non-employee being
admitted as a representative of miners under§ 103(f)(Tr. 215,
217) .
White, Rabbitt and Larsen met. Rabbitt inquired if there
was a problem if he traveled with the inspector. White said he
had not been notified and he also asked under what provisions of
the contract was the inspection being made. Rabbitt replied he
was entering under§ 103(f) (Tr. 178-180). White then read the
Act while conferring with Jordan, Peacock, Boston, Rabbitt and
Larsen. White refused to let Rabbitt accompany the inspector.
White stated that it was clear that th~ walkaround man is the
employee authorized by the miners at the mine (Tr. 181, 182).
Boston said he would write a citation and he gave White 10
minutes to reconsider. If the company continued its refusal he
would then write an order (Tr. 182).
White then called his superior, Dave Lauriska, and discussed
the details with him <Tr. 182, 183). Lauriska agreed with
White's position. White said they were going to get an order on
it. Lauriska said they didn't need another order and he
instructed White to abate the citation if Rabbitt signed the
waiver (Tr. 183).
The guard in the shack said Rabbitt hadn't signed the waiver
form. On rechecking Lauriska said Rabbitt could not go underground without signing the form (Tr. 184). A waiver was brought
in and discussed. Boston called his supervisor (Ponceroff).
Boston said he would include the waiver matter on the previous
citation (Tr. 186; Contestant Ex. 1). White relied on the
citation in permitting Rabbitt to go underground. Upon White's
demand, Rabbitt returned the unsigned waiver (Tr. 187).
At this point Inspector Boston and the walkaround party went
underground {Tr. 187).
At about 2:30 p.m., when the group came out of the mine,
there was a further discussion about the walkaround citation as
it related to the waiver agreement. White understood another
citation would be written (Tr. 188-190).
13/ White had been told by his superior that the 24 hour notice
requirement was directed to the international safety representatives. He interpreted that his instruction related to notice
under the collective bargaining agreement {Tr. 196).
1193

Witness White identified Emery's notice to Frank Fitzek.
It
indicated that management (in accordance with Article III(d) of
union contract) would require 24-hour notice to the company
before the UMWA could enter the mine property (Tr. 190, 191; UMWA
Ex. 4). White gave a copy of the notice to Rabbitt the afternoon
of April 15 (Tr. 191).
Emery maintained two clearly marked sign-in, sign-out books.
One says "Company Visitor Release", the other says 11 Non-Company
Visitor Release" (Tr. 192, 193). No portion of the text was
obscured by the punch holes or the bar (Tr. 193). An hour before
he testified White had verified the condition of the books with
his secretary (Tr. 194).
Prior to April 15, White had never discussed § 103(f) with
management or members of the local union (Tr. 197). White
construed § 103(f) to relate exclusively to employees of the mine
(Tr. 198).
About mid-March White first became aware of the waiver
policy.
He was advised of it by Dave Lauriski and Stan Rajski
(Emery's director of security) (Tr. 199, 213).
Under Emery's policy a visitor is any non-employee or
federal or state inspector at the mine (Tr. 199).
On April 15 Rabbitt signed under the old release policy.
That form shows a check number.
The visitor retains the brass
tag with a number stenciled into it (Tr. 201; Contestant Ex. 4).
Its purpose is to identify the persons in the mine (Tr. 202).
The check-in, check-out procedure is mandated by federal law (Tr.
202) •
White did not know on April
initions in 30 C.F.R. Part 40
sentative of miners as any other
represents two or more miners at
207).

15 but he agreed that the
[40.l(b)(l)] defines a repre-.
person or organization which
a coal or other mine (Tr. 206,

White outlined, in detailf his previous mining experience
(Tr. 208-210).
The contract provision authorizing access for the international safety and health representatives does not contain any
reference to a 24-hour notice (Tr. 211).
The only notice
provision in the contract provides as follows: "The committee
shall give su icient advance notice of the intended inspection
to allow a representative of the employer to accompany the
committee" (Tr. 211). The safety and health committee makes
regular monthly inspections under the contract (Tr. 212).
The contract further provides: the provisions of this
section are in no way intended to impair or to waive any

1194

statutory rights under federal or state laws or regulations which
union officials and representatives may have to enter upon mine
property or enter the mines (Tr. 212; UMWA Ex. 7).
Prior to April 15, 1986 James T. Jensen, an attorney
practicing in Utah, served as general counsel for Savage
Industries, the parent of Emery Mining Corporation (Tr. 219).
Witness Jensen prepared and implemented Emery's release and
waiver form (Tr. 219>. At the time of the Wilberg accident in
1984 Emery carried general liability insurance aggregating
$50,500,000. When these policies expired in June 1985 only
$30,500,000 in insurance coverage could be procured (Tr. 219-220).
The base policy was $500,000, then a first level of excess coverage at $10 million, then $5.1 million and then another $15
million.
In October or November the first $10 million excess was
cancelled. Hence, there was a gap in the coverage (Tr. 221).
The company was able to find a $1 million partial replacement
policy (Tr. 221). In December 1985 the $15.1 was cancelled.
Emery's efforts at replacement were unsuccessful (Tr. 221).
The additional insurance coverage was not available at any
cost and the $1.5 million coverage was, in Emery's opinion,
inadequate (Tr. 222).
After consultation it was determined that Emery would
continue in business and also attempt to limit its exposure (Tr.
222-223).
Emery's employees were covered by workman's compensation and
the areas of potential exposure involved claims by non-employees
(Tr. 223). It was decided to use a release and waiver approach
for those entering the company property. Existing and new forms
were reviewed (Tr. 223-225; Contestant Ex. 3, 4). There were no
discussions concerning the status of mine rescue terms from other
companies, federal inspectors or UMWA representatives in connection with the release and waiver forms (Tr. 224, 225, 230).
The Wilberg disaster generated claims and caused the company
to focus on non-employee visitors. But lawsuits against Emery by
non-employees were not an extensive part of the litigation and
the total of such claims would be within Emery's $1,500,000
coverage <Tr. 226-228).
The final release form was finally approved in the latter
part of February 1986 (Tr. 231).
In part, the policy came about
after a vendor was killed in a Kaiser mine (Tr. 231).
Dave Lauriski, Emery·' s director of health and safety,
testified that he has 16 years ex~erience in the mining industry
(Tr. 237, 238). His responsibilities include overall safety at
the company's mines and the coordination of staff activities.

1195

Between late December 1985 and February 1986 Lauriski helped
develop the waiver of liability form. The waiver was created due
to the inability of Emery to maintain an adequate amount of
insurance (Tr. 259). Utah Power and Light (UP&L) subsequently
advised the press that it was taking over the operation of the
mines because of the insurance question (Tr. 259, 260). The
waiver policy has been continued by UP&L but the basic reason for
the policy was negated by UP&L's insurance capability (Tr. 260).
Lauriski indicated the older form was "very loose" (Tr. 240;
Contestant Ex. 4). After receiving forms from various companies
Lauriski began to develop Emery's new form based on the company's
experience (Tr. 241). At that point he added on the form the
hazard recognition or training checklist for all non-employee
personnel. The draft form was approved by various individuals
who reviewed it (Tr. 242). In early March 1986 a final form
emerged (Tr. 243; Contestant Ex. 3, 5). An interoff
memorandum, dated March 21, 1986, identified those who would have to
sign the waiver and those exempt from signing it (Tr. 245;
Contestant Ex. 5). One of the criteria used to determine whether
a person should be required to sign the waiver was the risk
involved
ter the person entered the mine property (Tr. 246).
The first exemption involved state and federal agencies on
mine property for reasons relating to coal production and/or
inspections or enforcement actions. Even if any of these
individuals were injured on mine property Emery believed it would
not be held liable for such injuries (Tr. 246, 270, 282). An
additional exemption focused on the employees of common carriers
such as United Parcel and Uintah Freight. These individuals are
exempt because of existing contracts holding Emery harmless in
the event of injury to them. Further, Emery didn't think the
risk was great enough for them to sign a waiver for each entry to
the mine property (Tr. 247, 270, 283). In addition, the common
carrier
rsonnel do not go underground (Tr. 247, 283). A
further exemption involved Lowdermilk Construction Company. This
company does underground and surf ace work at the mine 100 percent
of the time (Tr. 247). In addition, the Lowdermilk contract
indemnifies and insures Emery {Tr. 248).
An additional exempted class consists of employees of Utah
Power and Light. UP&L owns these particular coal mines and Emery
serves as the operator CTr. 248).
With the exception of the four described classes of persons,
the waiver of liability policy applies to all other non-employees
visitors to Emery's mines (Tr. 248).
The Emery people who developed the exemptions (Lauriski,
Jensen, Cowan and Rajski) did not discuss the status of mine
rescue teams entering the property. But such teams are exempt
because a Utah state law holds coal operators harmless for miner
rescue teams on their property (Tr. 250)

1196

When the waiver policy was issued {Rajski's memorandum,
Contestant's Ex. 5) there was no discussion of the status of the
international representatives of the UMWA (Tr. 265). But in any
event such a person would be required to sign under category 4,
that is, as "all other visitors" (Tr. 266; Contestant Ex~ 5).
The hazard training checklist incorporated with the release
form used at Deer Creek mine is identical to the form used at the
other Emery mines (Tr. 268). Lauriski directed the mine managers
to implement the program (Tr. 250, 251).
Emery's mines consist of three separate complexes
geographically very close but with three different entrances.
The mines are independent. They are known as the Deer Creek
mine, the Des-Bee-Dove complex and the Cottonwood Wilberg complex.
Deer Creek mine overlies the Wilberg mine (Tr. 252, 293). Each
of the three mines has its own security system (Tr. 252). A
security guard records the times when visitors enter the property.
Further, they are responsible for a visitor signing the waiver
(Tr. 253).
Tom Rabbitt was the only person known to Lauriski who
refused to sign the waiver although for the preceding six or
seven months it had been the practice for Rabbitt to come on
Emery's property day or night without its knowledge (Tr. 253,
288-289).
Witness Lauriski identified an exhibit which consisted of a
large number of waiver and release forms.
The forms received in
evidence were generated at the Deer Creek mine between March 21,
1986 and April 27, 1986 (Tr. 254, 290; Contestant Ex. 6). All of
the forms had been signed by non-employee visitors to the mine •.
Up until the events of April 15, 1986 Lauriski was not aware
of any person asserting the right to enter an Emery mine under
§ 103(f) of the Mine Act {Tr. 255, 273, 287).

In cross examination Lauriski agreed that during a § 103{g)
inspection in January 1985 four UMWA health and safety representatives accompanied the federal inspectors during an
electrical inspection (Tr. 285).
When a representative of the UMWA, who is also an nonemployee, enters the mine under a contract right Emery requires
that waiver be signed (Tr. 268).
On April 15, 1986 Lauriski instructed White to abate the
citation rather than take a closure order.
He did not understand
at that time whether the closure order would be a "no-area
affected order" (Tr. 256, 257).
In three subsequent similar.
events Emery accepted the closure order (Tr. 257). The refusal
to abate came about because Lauriski was advised by his counsel
that the closure order would not affect any area of the mine CTr.
257, 279).

1197

As director of health and safety for Emery, Lauriski had a
fairly broad knowledge of the presence of MSHA and the UMWA on
mine property (Tr. 261).
Lauriski has known Tom Rabbitt for
eight or nine months (Tr. 261). Lauriski understood Rabbitt was
there to work on the Wilberg investigation (Tr. 261, 286).
Significant ~elays have occurred during the lengthy investigation
into the Wilberg fire (Tr. 261).
On two occasions during the delays of the Wilberg disaster
investigation, Rabbitt went underground in the Deer Creek mine to
look at a two entry mining system (Tr. 262). He also entered the
Cottonwood mine in late 1985 for the same purpose (Tr. 262). He
has also been underground in the Wilberg mine and participated in
the recovery operations (Tr. 262). Further, the witness does not
dispute the claim that Rabbitt accompanied the inspectors on more
routine inspections (Tr. 286).
Witness Lauriski was aware of Rabbitt's letter in January
dealing with the seals (Tr. 263). The company thought Rabbitt
was reiterating positions already decided on by the company (Tr.
264). The company was irritated over the second letter (Tr.
264).
William Ponceroff, called as an adverse witness, indicated
that he is the supervisor at the MSHA field off ice in Orangeville
(Utah) (Tr. 300).
Witness Ponceroff, a person experienced in mining, holds a
degree in safety (Tr. 301-303). The field office, with six
inspectors, has ten mines under its jurisdiction (Tr. 303).
At the time of this incident MSHA inspector Boston called
Ponceroff and advised him that mine management refused to permit
a UMWA representative to travel with him unless he signed a
waiver (Tr. 305, 306). Ponceroff was not familiar with the
waiver form nor did he attempt to learn about it. Abatement time
was not discus
In a similar incident about March 5, 1986 MSHA inspector
Baker had not taken any action (Tr. 306, 307). At a staff
meeting a few days later the issue was discussed. It was decided
that if any union representative on an international level wanted
to accompany the inspector the company was to have equal
representation. If the operator refused then a citation was to
be issued. If the operator failed to comply then a Cb) order
would be issued but it would be a no-closure type of order (Tr.
309, 310). The foregoing policy resulted in the instructions
given to Boston on April 15, 1986 (Tr. 310).
When Boston called him, Ponceroff was not aware Rabbitt had
previously signed any release forms.
In any event, that fact
would not have affected his judgment CTr. 310).

1198

Boston later advised his supervisor that he had rewritten
the citation.
In Ponceroff 's opinion, if Emery denied access to
a representative of the International UMWA claiming the right to
enter under§ 103(f), then such a denial constituted a violation
of the Act (Tr. 312). A violation would also occur if the
company refused access conditioned upon the signing of a release
and waiver (Tr. 313, 325). However, if a representative of miners
does not act in an orderly fashion or hinders the inspection in
any manner, he would be asked to leave and someone else would be
selected (Tr. 326).
After April 15 no person employed by Emery indicated that
Rabbitt should not be considered as a representative of the
miners at the mines (Tr. 326). On the Part 40 filing form the
UMWA is one of the organizations named as a representative of the
miners (Tr. 326, 327; Contestant Ex. 7).
Witness Ponceroff testified concerning situations where
disputes might arise over different individuals claiming to be
representative of the miners (Tr. 327, 328).
Ponceroff 's duties include enforcement of MSHA's regulations
under 30 C.F.R. Part 40. The Part 40 regulations require representatives of miners to make certain designations and file
certain documents with the MSHA District Manager (Tr. 314).
On July 30, 1984 a Part 40 document was filed with MSHA's
Orangeville office (Tr. 315, 316; Contestant Ex. 7). The document received in evidence was the most recent on file and it
identifies for MSHA the representatives at the various mines (Tr.
316, 317). Boston's call of April 15 did not inquire as to the
name of the individual who was listed as a representative of the
miners at the Deer Creek mine (Tr. 318). The form designates who
will represent the miners under various sections of the Act (Tr.
322f 323).
The parties stipulated that UMWA international representative Rabbitt was not listed as a named delegate on any filing
under Part 40 associated with any of the Emery mines (Tr. 323).
Poncerof f did not recognize the name of any UMWA international representative on the Part 40 form CTr. 324). Nor did
he look at the filing made by the Deer Creek miners (Tr. 324).
John W. Barton, called as an adverse witness, testified as
to his education and experience in mining. He further identified
himself as the district manager of District 9 for Coal Mine
Health and Safety {Tr. 330, 344, 345). He is responsible for the
total administration of the Act. He has 110 employees and four
primary divisions including administrative, education and
training (a consultant service to industry), an engineering
service to industry, and an enforcement division (Tr. 342-343).

1199

Barton's jurisdictional area consists of all states west of
the Mississippi except for Minnesota, Iowa and half of Missouri
(Tr. 343). His duties include enforcing the Part 40 regulations
(Tr. 331). Barton's office has written letters to various mines
concerning steps that need be taken to comply with Part 40 (Tr.
331, 332).
When changes are made in Part 40 filings by individual mines
MSHA accepts such changes as a matter of course and enters them
as part of the official MSHA file (Tr. 332). On occasion mines
have been directed to use MSHA forms (Tr. 333). Barton
identified the form prepared in his off ice.
It was prepared as a
convenience for miners' representatives (Tr. 333, 334).
Barton considers Part 40 to be a procedure available to mine
workers. However, in accordance with the Secretary's directions,
MSHA is told to take a very broad view of miners participation
rights (Tr. 343, 344, 356). Portions of the Part 40 regulations
use the term "shall", (Tr. 356) but the witness believed the
wording in the preamble instruct him how to interpret the regulation (Tr. 357). In Barton's opinion Inspector Boston acted
correctly (Tr. 358).
Section 103Cf) is a general provision of the Act that allows
a non-employee miners' representative to travel with the
representative of the Secretary (Tr. 335, 350). Such an
individual is not an employee of the agency but is present to
assist the MSHA inspector (Tr. 350). The regulations state that
participation by a miners' representative cannot interfere with
the active completion of the inspection. The inspector has
authority under the law to prevent a representative from further
traveling with him (Tr. 351). MSHA encourages the representatives to have some input into the inspections (Tr. 351). Barton
only knew of one instance where an intentional representative of
the UMWA was denied access to a mine (Tr. 349).
In Barton's understanding, the Act and its regulations seek
to encourage miners to participate and to bring forth people who
would best serve the purpose on any particular inspection (Tr.
349). This evolves from the fact that miners at an individual
mine do not have a great amount of experience and therefore
outside representation and wider experience can be of great benefit to the rank and file members (Tr. 349, 350). The miners representatives are chosen at the descretion of the employees at
the mine (Tr. 335, 336). Such descretion can be exercised by
submitting the form or by submitting a miners' representative
when the inspector arrives at the mine (Tr. 336). The preamble
in Government Exhibit 3 (the Secretary's bulletin of July 7,
1978) states, in part, that "it should be noted that miners and
their representatives do not lose their statutory rights under
§ 103(£) by their failure to file as a representative of the
miners under this part" (Tr. 336}.

1200

The Part 40 filing form itself was discussed by the witness
{Tr. 337, 338).
The policy that any UMWA international representative has an
automatic entry right under § 103{f) emanated from Barton's
office when Part 40 was promulgated (Tr. 338, 339). The Part 40
filings are occasionally consulted by MSHA since the regulations
govern the identification of representatives of miners for all
mines under the Act (Tr. 340). Further, the regulations define
the term "representatives of miners" (Tr. 341).
Barton analyzed a procedure to be followed if conflicting
claims arise between different persons claiming to be representatives of miners (Tr. 354, 355).
In rebuttal Forrest Adison and Mark Larsen testified for the
UMWA.
Forest Adison has been employed at the Wilberg mine for
eight years.
His local union offices include safety committeeman
and mine committeeman (Tr. 360). Adison was present at a meeting
with mine management representatives Neldon Sitterud, Jorgenson
(shift foreman), John Boylen, and Baker CMSHA) at the Wilberg
mine on March 5. At that time Adison requested that international representative Tom Rabbitt accompany him on a regular
quarterly safety inspection conducted by Bob Baker. There was a
question of a variance involving an escapeways in the Wilberg
mine (Tr. 361, 366). Sitterud told Rabbitt he had no right to
enter the mine. He and Boylen were not aware of the Act. Baker
took no enforcement action when the company refused to allow
Rabbitt to walkaround. Adison considered Rabbitt to be his
representative protecting him and keeping the membership aware of
activities (Tr. 362-367).
Since the mine disaster he has asked
the international union representatives about matters within
their expertise (Tr. 364).
Mark S. Larsen, a safety committeeman for the two years, has
been employed at the Deer Creek mine for seven years (Tr. 368,
369, 373).
On April 15, 1986 Larsen was present to accompany the MSHA
inspector whom he met at the gate. The two men picked up Rabbitt.
Later, in his office, White questioned Rabbitt's authority to
enter the mine under the contract. Rabbitt stated his entry was
not under the contract but under § 103(£) of the Act (Tr. 369,
370). When he read the Act, White said Rabbitt was not an
employee. Rabbitt agreed but stated that he would suffer no lost
wages by accompanying the inspector (Tr. 370). Larsen indicated
Rabbitt was being paid in part by the local union dues of $40 per
month (Tr. 370, 371).
As the argument continued Larsen told White thqt he felt
Rabbitt was his representative CTr. 371). The MSHA citation, as
previously described, was issued (Tr. 371). At this meeting
Rabbitt did not state he could get into the mine at any time (Tr.
372).

1201

Larsen trusts the advice he receives from the international
representatives. He further thought such advice was important to
his safety (Tr. 372, 373). Larsen felt they need the UMWA's
expertise. This is why the local miners pay their dues. Futher,
the international helps them (Tr. 373, 374).
Witness Rabbitt, recalled by the UMWA, described the sign-in
and sign-out books at the mine (Tr. 375, 376).
Di
This case turns on the interpretation of § 103(f) of the
Federal Mine Safety and Health Act of 1977. 14;
The walkaround participation right was first enacted in the
Federal Coal Mine Health and Saf
Act of 1969, 83 Stat. 750,
Public Law 91-173. Section 103(h) thereof provided as follows:
Ch) At the commencement
any inspection of a coal mine
by an authorized representative of the Secretary, the
authorized representative of the miners at the mine at
the time of such inspection shall be given an opportunity
to accompany the authorized representative of the Secretary on such inspection.
The 1977 amendment, enacted in§ 103(f), considerably
broadened the walkaround participation right and addressed the
issue of pay when a representative of miners accompanied the
inspection team.
Specifically, such representative of miners "who is also an
employee of the operator shall suffer no loss of pay •.. "
Clearly, then, Congress contemplated that non-employees may be
r
entatives of miners. Commission Judge James A. Broderick
to this effect in Consolidation Coal Company v. Secretary
Labor et
, 2 FMSHRC 1403 (1980).
In fulfilling his statutory rulemaking mandate contained in
the 1977 Act the Secretary issued his interpretative bulletin, 43
Fed. Reg. 17546, (April 25, 1978) setting for his general
interpretation of the scope of § 103(f). The bulletin provides,
in part, as follows:
14/

This section has been before the Courts of Appeals in UMWA

V-: Federal Mine Safety and Health Review Commission, 671 F.~

615 (DC Cir. 1982), cert. denied 74 L. Ed.2d 189 (1982); Magma
Copper Company v. Secretary of Labor, 645 F.2d 694 (9th Cir.
1981) cert. denied 50 U.S.L.W. 3296 (1981); Consolidation Coal
Co. v.~eral Mine Safety and Health Review Commission, 740 F.2d
271 (3rd Cir. 1984); Monterey Coal Co. v. Federal Mine Safety and
Health Review Commission, 743 F.2d 589 (7th Cir. 1984).

1202

The Federal Mine Safety and Health Act of 1977 (Pub. L.
91-173, as amended by Pub. L. 95-164, November 9, 1977)
(hereinafter referred to as the Act) is a Federal statute
designed to achieve safer and more healthful conditions in
the nation's mines. Effective implementation of the Act
and achievement of its goals depend in large part upon the
active but orderly participation of miners at every level
of safety and health activity. Therefore, under the Act,
miners and representatives of miners are afforded a wide
range of substantive and procedural rights.
Section 103(£) provides an opportunity for the miners,
through their representatives, to accompany inspectors
during the physical inspection of a mine, for the purpose
of aiding such inspection, and to participate in pre- or
post-inspection conferences held at the mine. As the Senate
Committee on Human Resources stated, "If our national mine
safety and health program is to be truly effective, miners
will have to play an active part in the enforcement of the
Act.' S.Rep. No. 95-181, 95th Cong., 1st Sess., at 35
(1977).
Further, in 1978 the Secretary promulgated 30 C.F.R. Part 40
wherein he defined a representative of miners to mean: "(l) Any
person or organization which represents two or more miners at a
coal or other mine for the purposes of the Act" and (2) "Representatives authorized by miners", "Miners or their representatives", "authorized miner representative" and other similar terms
as they appear in the Act. (§ 40.1).
I agree with Emery that it seems beyond contradiction that
there are two principal reasons for the § 103(f) walkaround right.
They are to increase the safety awareness of miners and to
produce more thorough inspections through the participation of
those familiar with the conditions being inspected. However, I
do not concur with Emery's view that a colloquy 15; between
Senators Helms and Javits is determinative of the-final scope of
this section.
Contrary to Emery's views Senate Report No. 95-181 contained
in the legislative history is much more persuasive. On the point
the report states as follows:
The right of miners and miners' representatives to accompany
inspectors
Section 104(e) contains a provision based on that in the
Coal Act, requiring that representatives of the operator and
miners be permitted to accompany inspectors in order to
assist in conducting a full inspection. It is not intended,
however, that the absence of such participation vitiate any
citations and penalties issued as a result of an inspection.
15/

The senators, in discussing§ 103(f), referred to

~employees" and "miners. 11

1203

The opportunity to participate in pre- or post-inspection
conferences has also been provided. Presence of a representative of miners at opening conference helps miners to
know what the concerns and focus of the inspector will be,
and attendance at closing conference will enable miners to
be fully apprised of the results of the inspection. It is
the Committee's view that such participation will enable
miners to understand the safety and health requirements of
the Act and will enhance miner safety and health awareness.
To encourage such miner participation it is the Committee's
intention that the miner who participates in such inspection
and conferences be fully compensated by the operator for
time thus spent. To provide for other than full compensation would be inconsistent with the purpose of the Act
and would unfairly penalize the miner for assisting the inspector in performing his duties. The Committee also recognizes that in some circumstances, the miners, the
operator or the inspector may benefit from the participation
of more than one representative of miners in such inspection
or conferences, and this section authorizes the inspector to
permit additional representatives to participate.
(Emphasis added)
Legislative History of the Federal Mine Safety and Health
Act of 1977, 95th Congress, 2nd Session 616, 617 (July
1978) •
In short, the Senate in its formal report had no difficulty
deciding that the inspector might include additional miners'
representatives to participate with him in the inspections.
In support of its position, Emery cites Emery Mining
Corporation, 783 F.2d 155, 158 (10th Cir. 1986), Council of
Southern Mountains, Inc., v. Federal Mine Safety and Health
Review Commission, 751 F.2d 1418 {DC Cir. 1985}, and Stouffer
Chemical Company v. E.P.A., 647 F.2d 1075 (10th Cir. 1981}, among
other cases.
The cited Emery case is not controlling. In Emery the court
reviewed the scope of a different section of Act, namely § 115.
Further, the·Court emphasized that none of the Secretary's
"otherwise extensive regulations" addressed the issue of the
operator's liability to pay newly hired miners for their costs in
receiving 32 hours of miner training, 383 F.2d at 159. The
instant case involves the Secretary's interpretative bulletin but
more particularly he has defined a representative of miners to be
a person or organization which represents two or more miners.
Mr. Rabbitt is such a person and the UMWA, intervenor, is such an
organization.
In Council of Southern Mountains the Council, a non-employee
miner representative, sought access to mine property to monitor
certain training classes. Specifically, the Court noted that
"Ci)t was not, in these circumstances, asserting its right under

1204

103{f), 30 u.s.c. § 813(f), to accompany a federal mine inspector investigating mines for compliance with safety training
requirements" (fn 21, 751 F.2d at 1421).

§

In fact, in footnote 18 the Court takes a contrary position
to Emery's view that a distinction exists between employee and
non-employee representatives. The Court stated that "(t)he
Council is a non-employee miners' representative. The Mine Act,
however, merely refers to 'representatives' and does not
articulate any distinction between the rights of employee and
non-employee representatives", 751 F.2d at 1421.
Further, in footnote 31 the Court noted: "Our holding is
limited to situations were miners' representatives assert an
independent right to enter mine property for monitoring purposes.
It has no application to instances where representatives assert a
statutory right under Section 103(f) to accompany federal mine
inspectors investigating mines for compliance with statutory or
regulatory safety training requirements", 751 F.2d at 1418.
In Stauffer Chemical Company the question before the Court
involved the right of access by EPA's contractor under the Clean
Air Act. Stauffer provides no support for Emery's position that
the miner's representatives must be employees of the operator in
order to be allowed access to mine property. Under § 103(f) Mr.
Rabbitt was not an employee of the Secretary. He was an employee
of the miners at the Deer Creek mine.
Emery's search warrant cases, commencing with Camara v.
Municipal Court of the City and County of San Francisco, 387 U.S.
523 (1967) and its progenity illustrate a principle of law. But
the Supreme Court has
ready ruled that a search warrant is not
required under the Mine Act, Donovan v. Dewey, 101 s. Ct. 2534
(1981)0 The right of the international representative under
§ 103(f) is to inspect mine property at the same time and in the
presence of the MSHA inspector.
On this record it is uncontroverted that the UMWA International was bound by its collective bargaining agreement to
Emery and its miners. Further, Emery knew Rabbitt was a UMWA
international representative. Rabbitt and UMWA both meet the
Secretary's definitions of a miners' representative. Further,
miners Fitzek, Addison and Larsen wanted Rabbitt's expertise and
assistance. A portion of the local union dues go to Rabbitt's
wages.
The foregoing facts cause me to conclude that Rabbitt may
participate in a walkaround inspection with the MSHA inspector as
a matter of statutory right.
The second issue focuses on whether Emery may condition the
entry of the UMWA international representative upon his signing a
release and waiver agreement.

1205

A credibility issue arises here as to whether the release
agreement was intended to restrict the activities of Rabbitt at
the Emery mines. Rabbitt expressed such an opinion but no
collateral evidence supports such a conclusion. Accordingly, I
reject such a construction of the evidence.
Emery's reasons for
requiring various parties to sign the release and waiver are
credible and detailed in the summary of the evidence. However,
the record indicates that the potential exposure for possible
claims from this class of persons was within Emery's initial
coverage of $1,500,000.
In addition, the insurance problem was
resolved when Utah Power and Light took over the operation of its
mines.
In any event, § 103(f) does not condition the international
representative's access upon a waiver of that person's right to
seek redress for injuries that might be sustained as a result of
the operator's negligence. The right to apply to the courts for
relief from the perpetration of a wrong is a substantial right.
Bracken v. Dahle et al, 68 Utah 486, 251 P. 16 (1926).
In addition, the State of Utah's Constitution in Article I,
Section 11 provides as follows:
All courts shall be open, and every person, for an injury
done to him in his person, property or reputation, shall
have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person
shall be barred from prosecuting or defending before any
tribunal in this State, by himself or counsel, any civil
cause to which he is a party.
The State of Utah has included the above right within the
protection of its constitution.
It would appear that if Emery's
position were sustained, serious 10th Amendment implications
could arise.
Emery may well have the right, in dealing with the members
of the public, to condition access to its mine. There are
certain benefits accruing to sales representatives and similar
persons in entering a mine. The signing a waiver in those cases
is an appropriate quid pro quo for the expanded business opportunity. But the person seeking access here is acting under a
statutory provision. The Commission has noted that access under
this provision plays an important role in the overall enforcement
scheme of the Act. It is therefore inappropriate for Emery to
equate the UMWA international representative's access with that
of a sales representative in determining the appropriateness and
validity of the operator's release and waiver requirement.
Providing access to the former was determined by Congress to be
an important means of achieving the goal of improved health and
safety in our nation's mines. Providing access to sales representatives and the like does not relate to the achievement of
goals that are in the public interest and that matter is left to
the operator·•s discretion.

1206

It is also noted that non-employee Union representatives
have been held to have a right of access to an employer's
property, in order for the union to properly carry out its duties
as collective bargaining representative under the National Labor
Relations Act.
NLRB v. Holyoke Water Power Co., 778 F.2d 49 (1st
Cir. 1985).
For the foregoing reasons, I conclude that Emery may not
insist that the UMWA international representative sign a waiver
prior to exercising § 103(f) rights.
Emery's policy also requires 24 hour advance notice before
entry into a mine will be permitted.
However, it is not
necessary to explore this aspect of the case because the notice
requirement clearly relates to entry under the terms of the wage
agreement (UMWA Ex. 4).
And the parties agree the terms of the
wage contract are not an issue in the case.
The final issue centers on whether Emery may refuse entry to
UMWA international representative Rabbitt merely because he was
not designated by name in the filings made under 30 C.F.R. Part
40.
This issue was squarely addressed by the Commission in
Consolidation Coal Company, 3 FMSHRC 617 (1981).
In the Consol case the inspection was requested by the
safety committee of the UMWA local. The UMWA was the collective
bargaining representative of the miners. The operator refused
entry on the grounds that their names had not been submitted
pursuant to 30 C.F.R. Part 40.
In considering the issue the Commission stated as follows:
We have previously recognized the important role section
103(f) plays in the overall enforcement scheme of the Act,
both in assisting inspectors in their inspection tasks and
in improving the safety awareness of miners. (Case cited)
We are not prepared to restrict the rights afforded by that
section absent a clear indication in the statutory language
or legislative history of an intent to do so, or absent an
appropriate limitation imposed by Secretarial regulation.
Neither the statute nor the legislative history indicates
that prior identification of miners' representatives is a
prerequisite to engaging in the section 103(f) walkaround
right, and Part 40 on its face is silent as to the intended
effects of a failure to file.
The preamble to Part 40 does
discussi however, the intended effect of the filing regulations on walkaround participation.
It states:
[I]t should be noted that miners and their representatives do not lose their statutory rights under section
103(f) by their failure to file as a representative of
miners under this part.

1207

43 Fed. Reg. 29508 (July 7, 1978). This statement provides
a clearly indication of the Secretary's intent in promulgating the filing regulations and is not inconsistent with
the language of Part 40.
In footnote 3 of the decision the Commission further
observed:
The Part 40 filing requirements· were not promulgated merely
to identify miners' representatives for section 103(f) purposes.
As the preamble to Part 40 noted, the Act "requires
the Secretary of Labor to exercise many of his duties under
the Act in cooperation with miners' representatives."
43
Fed. Reg. 29508 (July 7, 1978). Filing under Part 40
serves, among other things, to identify such representatives
that they will be included in the processes contemplated by
the Act.
See, e.g., sections lOl(e), 103(c), 103(g),
105(a), 105(b), 105(d), 107(b), 107(e), 109(b), 305(b).
3 FMSHRC at 618, 619
In the Consol case the operator was well aware of who the
UMWA safety representatives were and why they were at the mine.
Likewise, in the instant case, international representative
Rabbitt was well known to Emery's management.
For the foregoing reasons, I conclude that the mere failure
of representative Rabbitt to file under 30 C.F.R. Part 40 does
not authorize the operator to deny access under§ 103(£).
Bri

s

The parties have filed pre-trial and post-trial briefs which
been most helpful in analyzing the record and defining the
issues.
However, to the extent they are inconsistent with this
decision, they are rejected.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of this decision, the following conclusions
of law are entered:

1.

The Commission has jurisdiction to decide this case.

2. Contestant failed to meet its burden of proof to establish that Citation 2834575 should be vacated.
3.

The contest of Citation 2834575 should be dismissed.

1208

ORDER
Based on foregoing findings of fact and conclusions of law,
I enter the following order:
The contest filed herein is dismissed.

Law Judge
Distribution:
John A. Macleod, Esq., Ellen Moran, Esq., Crowell & Moring, 1100
Connecticut Avenue, NW, Washington, D.C.
20036 (Certified Mail)
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail}
Mary Lu Jordan, Esq., United Mine Workers of America, 900
Fifteenth Street, NW, Washington, D.C.
20005 (Certified Mail}
/blc

1209

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

UTAH POWER & LIGHT,
substituted for
EMERY MINING CORPORATION,
Contestant

AUG 7 1986

CONTEST PROCEEDING
Docket No. WEST 86-131-R
Order No. 2833458; 4/22/86

v.

Wilberg Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Respondent
and
UNITED MINE WORKERS OF AMERICA,:
Intervenor

.
~·

DECISION
Appearances:

John Macleod, Esq., Crowell & Moring, Washington,
D. C.,

for Contestant;
Edward H. Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Respondent;·
Mary Lu Jordan, Esq., United Mine Workers of
America, Washington, D.C.,
Intervenor.
Before:

Judge Morris

This case, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et~., (the Act)
arose from an inspection of contestant's Wilberg mine on April
22, 1986. On that date a federal mine inspector issued Order No.
2833458 under § 104 of the Act.
A hearing on the merits commenced in Denver, Colorado on May
14 I 1986 •

Stipulation
The parties agreed that the ruling in WEST 86-126-R would be
controlling in this case (Tr. 18-20).

1210

Conclusions of Law
Based on the record and the stipulation of the parties, the
following conclusions of law are entered:

1.

The Commission has jurisdiction to decide this case.

2. On this date an order was entered dismissing the contest
in WEST 85-126-R.
3. The contest of MSHA Order No. 2833458 herein should be
dismissed.
ORDER
Based on the stipulation of the parties and the conclusions
of law I enter the following order:
The contest of Order No. 2833458 is dismissed.

Distribution:
John Macleod, Esq., Crowell & Moring, 1100 Connecticut Avenue,
NW, Washington, D.C.
20036 (Certified Mail)
Edward Fitch, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Mary Lu Jordan, Esq., United Workers of America, 900 Fifteenth
Street, NW, Washington, D.C.
20005 (Certified Mail)
/blc

1211

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

UTAH POWER & LIGHT,
substituted for
EMERY MINING CORPORATION,
Contestant

AUG 7 1986

CONTEST PROCEEDING
Docket No. WEST 86-140-R
Order No. 2833456; 4/17/86

v.

Wilberg Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
and
UNITED MINE WORKERS OF AMERICA,:
Intervenor
DECISION
Appearances:

John Macleod, Esq., Crowell & Moring, Washington,

D .c. I

for Contestant;
Edward H. Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Respondent;
Mary Lu Jordan, Esq., United Mine Workers of
America, Washington, D.C.,
Intervenor.
Before:

Judge Morris

This case, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., (the Act)
arose from an inspection of contestant's Wilberg mine on April
17, 1986. On that date a federal mine inspector issued Order No.
2833456 under § 104 of the Act.
A hearing on the merits commenced in Denver, Colorado on May
14, 1986.
Stipulation
The parties agreed that the ruling in WEST 86-126-R would be
controlling in this case CTr. 18-20).

1212

Conclusions of Law
Based on the record and the stipulation of the parties, the
following conclusions of law are entered:
1.

The Commission has jurisdiction to decide this case.

2. On this date an order was entered dismissing the contest
in WEST 85-126-R ..
3. The contest of MSHA Order No. 2833456 herein should be
dismissed.
ORDER
Based on the stipulation of the parties and the conclusions
of law I enter the following order:
The contest of Order No. 2833456 is dismissed.

~~

tJ'~~n J. p;;is

Administrative Law Judge

Distribution:
John Macleod, Esq., Crowell & Moring, 1100 Connecticut Avenue,
NW, Washington, D.C.
20036 (Certified Mail}
Edward Fitch, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Mary Lu Jordan, Esq., United Workers of America, 900 Fifteenth
Street, NW, Washington, D.C.
20005 (Certified Mail}
/blc

1213

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

UTAH POWER & LIGHT,
substituted for
EMERY MINING CORPORATION,
Contestant

80204

AUG 7 1986

CONTEST PROCEEDING
Docket No. WEST 86-141-R
Order No. 2835048; 4/23/86

v.

Cottonwood Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
and
UNITED MINE WORKERS OF AMERICA,:
Intervenor
DECISION
Appearances:

John Macleod, Esq., Crowell & Moring, Washington,
D. C.,

for Contestant;
Edward H. Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Respondent;
Mary Lu Jordan, Esq., United Mine Workers of
America, Washington, D.C.,
Intervenor.
Before:

Judge Morris

This case, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et~., (the Act)
arose from an inspection of contestant's Cottonwood Mine on April
23, 1986. On that date a federal mine inspector issued Order No.
2835048 under § 104 of the Act.
A hearing on the merits commenced in Denver, Colorado on May
14, 1986.

Stipulation
The parties agreed that the ruling in WEST 86-126-R would be
controlling in this case (Tr. 18-20).

1214

Conclusions of Law
Based on the record and the stipulation of the parties, the
following conclusions of law are entered:
1.

The Commission has jurisdiction to decide this case.

2. On this date an order was entered dismissing the contest
in WEST 85-126-R.

3. The contest of MSHA Order No. 2835048 herein should be
dismissed.
ORDER
Based on the stipulation of the parties and the conclusions
of law I enter the following order:
The contest of Order No. 2835048 is dismissed.

Law Judge
Distribution:
John Macleod, Esq., Crowell & Moring, 1100 Connecticut Avenue,
NW, Washington, D.C.
20036 (Certified Mail)
Edward Fitch, Esq., Office of the Solicitor, U.• s. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Mary Lu Jordan, Esq., United Workers of America, 900 Fifteenth
Street, NW, Washington, D.C.
20005 (Certified Mail)
/blc

1215

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

AUG 8 1986

CIVIL PENALTY PROCEEDING

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

Docket No. SE 86-46
A. C. No. 01-00515-03632
Mary Lee No. 1 Mine

v.
ALABAMA BY-PRODUCTS CORP.,
Respondent
DEC!SION
Appearances:

William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama,
for Petitioner.

Before:

Judge Merlin

s case is a petition
the assessment of a civil
penalty filed by the Secretary against Alabama By-Products
Corporation. By Notice of Hearing dated July 22, 1986,
hearing was set for August 6, 1986, in Birmingham.
On August 5, 1986, at the conclusion of hearings on
cases set for that day, the Solicitor asked to be heard
with respect to this case. The Solicitor advised on the
record that the citation which was the subject
the penalty assessment had been vacated by MSHA. He moved to dismiss, explaining that the citation had been issued
a
violation of the operator's roof control plan but that upon
further consideration MSHA had concluded that the plan did
not cover the situation in question.
Upon inquiry from the
bench, the Solicitor
assurances that both the operator
and MSHA were now reviewing the roof control plan in light
of this case.
nally, the Solicitor advised that, if required,
operator's counsel would appear the following morning as had
been scheduled. However, in light of the Solicitor's representations, further appearances by counsel were excused and
additional hearing was deemed unnecessary.
In light of the foregoing, this case is Dismissed.

Paul Merlin
Chief Administrative Law Judge

1216

stribution:
Wil am Lawson, Esq., Office of the Solicitor, u. s. Department
of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL
35203 {Certified Mail)
David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.C.,
12th Floor, Watts Building, Birmingham, AL 35203 (Certi
Mail)

1217

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

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

v.

AUG 8 1986

CIVIL PENALTY PROCEEDING
Docket No. WEST 86-19
A.C. No. 05-01370-03550
Eagle No. 5 Mine

EMPIRE ENERGY CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Carlson

The part s have submitted a joint motion to approve a
settlement agreement. Specifically, the Secretary asks leave to
amend the penalty proposed for citation 2072087 from $10,000.00
to $7,500.00 on grounds that the operator's negligence proved to
be less than originally believed. The Secretary also asks leave
to amend the proposed penalty for citation 23333640 from $98.00
to $78.00 for the same reason. Finally, the Secretary moves that
citation 2072088 be vacated on grounds that he lacks sufficient
evidence to establish the violation.
The respondent, in turn, agrees to withdraw its notices of
contest to citations 2072087 and 2333640 if the settlement is
approved.
Based upon the representations of the parties and the
contents of the f i
, I conclude that the settlement agreement is
appropriate and should be approved in its entirety.
Accordingly, the settlement agreement is approved and the
attendant motions are granted. Citation 2072088 is vacated.
Respondent shall pay a total civil penalty of $7,578.00 for the
remaining two citations within forty days of the date of this
decision. This proceeding is dismissed.
SO ORDERED.

hn A. Carlson
dministrative Law Judge

1218

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
R. Henry Moore, Esq., Rose, Schmiudt, Chapman, Duff & Hasley, 900
Oliver Building, Pittsburgh, PA 15222-5369 (Certified Mail)

1219

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

22041

AUG 121986
DISCRIMINATION PROCEEDING

MARTHA PERANDO,
Complainant

v.

Docket No. YORK 85-12-D
MSHA case No. MORG CD 85-17

METTIKI COAL CORPORATION,
Respondent
DECISION
Appearances:

Martha Perando, Deer Park, Maryland, pro se:
Timothy Biddle, Esq., and Lisa B. Rovin, Esq.,
with Susan E. Chetlin, Esq., on the brief,
Crowell & Moring, Washington, DC, on behalf of
Respondent.

Before:

Judge Melick

This case is before me upon the complaint by Martha
Perando under section 105(c)(3) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et~, the. 11 Act, 11
alleging discrimination and discharge by the Mettiki Coal
Corporation CMettiki) in violation of section 105(c)(l) of
the Act.~/

1/ Section 105(c)(l) of the Act provides as follows:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject to
this Act because such miner, representative of miners or
applicant for employment, has filed or made a complaint under
or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of
the miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine or because
such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential
transfer under a standard published pursuant to section 101
or because such representative of miners or applicant for
employment has instituted or caused to be instituted any
proceedings under or related to this Act or has testified or
is about to testify in any such proceeding, or because of the
exercise by such miner, representative of miners or applicant
for employment on behalf of himself or others of any statutory
right afforded by this Act.

1220

In order to establish a prima facie violation of section
105(c)(l) Ms. Perando must prove by a preponderance of the evidence that she engaged in an activity protected by that section
and that the discriminatory action taken against her was motivated in any part by that protected activity. Secretary on
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786
(1980), rev'd on other grounds sub nom. Consolidation Coal Co.
v. Marshall, 663 F.2d 1211 (3d Cir. 1981). See also Boich v.
FMSHRC, 719 F.2d 194 (6th Cir. 1983) and NLRB v. Transportation
Management Corporation, 462 U.S. 393 (1983), affirming burden
of proof allocations similar to those in the Fasula case. A
miner's "work.refusal" is protected under section 105(c) of the
Act if the miner has a good faith, reasonable belief in the
existence of a hazardous condition. Miller v. FMSHRC, 687 F.2d
194 (7th Cir. 1982); Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803 {1981). Such a nwork refusal"
may be based upon a perceived hazard arising from the miner's
own physical condition or limitations. Bjes v. Consolidation
Coal Co., 6 FMSHRC 1411, 1417 (1984).
As noted in the decision denying Mettiki's motion to
dismiss (8 FMSHRC 364) Ms. Perando first alleges that she
suffered unlawful discrimination when she was given less pay
upon her transfer from underground work to surface laboratory
work after Mettiki officials were informed that she could no
longer work underground because of a health impairment,
industrial bronchitis, contracted as a result of her underground work at Mettiki.
In this case I find that Ms. Perando had indeed contracted industrial bronchitis from her exposure to coal dust
while working at the Mettiki underground mine beginning
October 1, 1980. The award to Ms. Perando of Worker's
Compensation based on this claim is not disputed and the
medical evidence of record supports this finding.
Because of
this medical impairment, in May 1984 two physicians (Drs.
James Raver and Karl E. Schwalum> told Mettiki officials and
Ms. Perando that she could, in effect, no longer work in
Mettiki's underground coal mine and that she should be placed
in a job in which she would not be exposed to coal dust.
More specifically this information was reported in a May 14,
1984, letter from Dr. Raver to Mettiki personnel manager
Thomas Gearhart.
In a subsequent letter dated June 25, 1984, and also
received by Gearhart, Dr. Raver again concluded that Ms.
Perando was suffering from industrial bronchitis. He opined
that it was "moderate to severe and [was] disabling in terms
of her normal ability to work." Dr. Raver also concluded
that it "most likely would remain a chronic condition and
[would] not clear or be 'cured'."

1221

As a result of this medical data Mr. Gearhart offered
Ms. Perando a job transfer to the surface laboratory in
September 1985. Gearhart then knew that she was unable to
work underground because of the hazard of coal dust exposure
to her health.
It is not disputed that Ms. Perando accepted
a transfer to the surface laboratory and began working at
that job on September 27, 1985, at a reduced rate of pay.
Whi
it is apparent that Ms. Perando never "refused"
to work underground in the traditional sense, she knew, based
on the medical evidence, that she should no longer work underground because of the hazard presented to her from coal dust
exposure and Mettiki knew this too. Thus her medically substantiated inability to work underground was the functional
equivalent of a work refusal. Since Ms. Perando had been
apprised by her physicians of her medical condition and of
the "disabling" consequences of continued underground work,
her work refusal was also based upon a good faith and reasonable belief in the hazard.
This refusal was also communicated to the mine operator
by the doctors' reports to Personnel Manager, Thomas Gearhart.
Moreover in recognition of the health hazard presented to Ms.
Perando by underground work and in apparent recognition of
its obligation to address this danger, Mettiki offered her
the outside job in the laboratory. See Secretary on behalf
of Bush v. Union carbide Corp., 5 FMSHRC 993 (1983).
By reducing Perando's pay in the laboratory however
(apparently from $520.20 to $383.20 per week), I find that
Mettiki did in fact unlawfully discriminate against her
because of her work refusal.2/ Under the circumstances I
find that Ms. Perando is entTtled to damages amounting to the
pay differential between her underground job and her laboratory job for the period of her employment in the laboratory.
Ms. Perando next claims that she was d criminatorily
charged with unexcused absences because she filed an application for Worker's Compensation. She seeks to have all such
unexcused absences expunged from her personnel f i
The
·record shows that she had received a copy of the Mettiki
employee handbook in August 1984 which included a requirement
for telephoning the mine off ice at least one half hour before
the employee's work shift when reporting in sick. Perando
knew that she was therefore required to call the off ice by
6:30 a.m. on the days that she was reporting sick and

2/ The fact that Ms. Perando may have failed to formally
protest this pay reduction to Mettiki officials before filing
her claim of discrimination under the Act would not constitute
any consent to, or waiver of, such discrimination.

1222

acknowledges that the requirrnent applied equally to all
employees and not just to her.
Ms. Perando also admits that there were occasions when
she failed to call in as required and she does not therefore
dispute the corresponding unexcused absences. She is not
however specific in her testimony as to which unexcused
absences, if any, remain to be challenged. She has no
independent recollection of, nor adequate corroboration for,
the dates on which she allegedly tried to call in but was
unsuccessful and for which she now claims she was charged
with unexcused absences. Under the circumstances neither the
allegations nor the evidence is sufficient and her complaint
in this regard must therefore be dismissed.
Ms. Perando alleges, lastly, that she was unlawfully
discharged on March 27, 1985, while off work under a doctor's
care. As explained at the hearings on Mettiki's Motion to
Dismiss she is here claiming that she was discharged because
she had a serious medical condition caused by Mettiki
(industrial bronchitis) and that she could not and would not
work because of the hazardous health environment presented in
the laboratory where she had been transferred from her underground job. This complaint was also construed as a work
refusal in the face of conditions alleged to be hazardous to
her health.
As previously indicated Ms. Perando did indeed contract
industrial bronchitis from her underground coal mine employment and she was thereafter transferred to the surface performing work in the Mettiki testing laboratory. She claims
that the laboratory environment, even after the installation
of a special ventilation hood, was such that her symptoms of
industrial bronchitis returned with "a lot of pain" and
"heavy pressure" on her chest accompanied by difficulty in
breathing. Between January 21, 1985 and the date of her
termination on March 27, 1985, she admitted being absent from
2 to 5 days a week. Shortly before her termination Ms.
Perando told Personnel Manager Gearhart that she did not know
when she would be able to return to work and that she was not
then able to work at all. According to Gearhart she was
thereafter discharged because she had not reported to work
for a significant period of time.
The record shows that coal samples are tested in the
Mettiki laboratory as a quality control measure. According
to lab supervisor Anne Colaw the moisture, sulfur and ash
content of the coal is measured in the lab and its "BTU's and
volatility" are determined. According to Colaw the lab was
kept clean and, when testing was performed, only about 1 gram
of coal was tested at any one time and that was tested in an
enclosed area separated from the area where Ms. Perando was
assigned before her discharge.

1223

The results of dust sampling performed in the laboratory are not disputed. On September 25, 1984, only .4 milligram of respirable dust per cubic meter was found.
Subsequent tests performed during regular lab activities on
October 1, 1984, on samples taken from various parts of the·
laboratory showed respirable dust ranging from .1 to .3
milligram per cubic meter. Samples taken from the laboratory
on March 11, 1985, showed respirable dust ranging from .1 to
.2 milligram per cubic meter with .4 milligram per cubic
meter in the area of the hood.
It is not disputed that .1
milligram of respirable dust per cubic meter is equivalent to
the amount of dust found in the "ambient air" of a normal
environment.
Indeed Ms. Perando concedes that she knew the
respirable dust levels in the lab were within the "normal
range."
Considering that Ms. Perando knew that there were no
abnormal dust levels in the lab and considering that she had
the same alleged symptoms of her illness whether or not she
was working in the lab I cannot conclude that her belief that
the lab environment was hazardous was either reasonable or
held in good faith.
I note moreover that she continued to
have the same symptoms even a year after leaving the
laboratory.
Her lack of a good faith belief that the lab presented
a hazardous health environment is also demonstrated by the
fact that she wore her respirator only part of the time she
was working.
In addition her practices became such that
co-workers could determine in advance when she would not be
working a full day by the fact that she would appear on those
days without her lunch.
It may reasonably be inferred from
this practice that she may have been malingering. Under the
circumstances I find that Ms. Ferando~s alleged inability to
work in the lab was not based on either a reasonable or a
good faith belief in a hazardous condition. Her complaint in
this regard of discrimination under section 105(c)(l) of the
Act is accordingly denied.
The complaint herein is thus granted in part and denied
in part and further proceedings may be necessary to establish
corresponding damages, costs and interest. The parties are
accordingly directed to confer regarding these matters and to
advise the undersigned on or before August 5, 1986, whether
further evidentiary hearings will e requir d or whether
those matters can be stipulated.

1224

Distribution:
Martha Perando, P.O. Box
Mial)

30~2,

Deer Park, MD 21550 (Certified

Timothy Biddle, Esq., and Lisa B. Rovin, Esq., Crowell &
Moring, 1100 Connecticut Avenue, N.W., Washington, DC 20036
(Certified Mail)
rbg

1225

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

AUG 131986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
JIM WALTER RESOURCES, INC.,
Respondent

CIVIL PENALTY PROCEEDING

.
.
.

Docket No. SE 86-67
A.C. No. 01-01247-03701
No. 4 Mine

.
DECISION

Appearances:

Before:

William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama,
for Petitioner; R. Stanley Morrow, Esq., and
Harold D. Rice, Esq., Birmingham, Alabama, for
Respondent.

Judge Merlin

This case is a petition for the assessment of three civil
penalties filed by the Secretary of Labor against Jim Walter
Resources, Inc.
At the hearing the Solicitor advised that the parties
proposed to settle the violations for the full assessed amounts
as follows: Citation 2605565 was issued for a violation of 30
C.F.R. § 75.517 because the power cable from the scoop charger to
batteries that were being charged on the 010 section, was not
insulated adequately and fully protected. The gravity of the
violation was serious because a miner contacting the bare,
energized conductors could receive a serious electrical shock.
In addition, the violation resulted from the operator's
negligence. The proposed settlement was for the original amount
of $800.
Citation No. 2605566 was issued for a violation of 30 C.F.R.
75.400 because combustible materials were permitted to
accumulate at a scoop charging station. The gravity of the
violation was serious, because oil, coal and oil-soaked coal were
permitted to accumulate on the footwall.
Power cables were
coiled on top of the combustible materials which could have
provided an ignition source for the accumulation. A fire could
cause a miner in the area to be exposed to smoke inhalation and

§

1226

other fire hazards. The operator was plainly negligent in
allowing this condition to occur. The proposed settlement was
for the original amount of $800.
Citation No. 2605567 was issued for a violation of 30
C.F.R. § 75.512 because the scoop charger on the 010 section was
not maintained in a safe operating condition. The violation was
serious, because the charger had been hit, causing the control
panels on each side to be loose, exposing the bare electrical
components inside the charger. Furthermore, the doors were
damaged and would not close. A miner contacting the bare
components could receive a serious electrical shock. The
operator was negligent because the violation was obvious. The
proposed settlement was for $800.
Information was provided regarding the remaining statutory
criteria set forth in section llO(i).
As I advised operator's counsel at the hearing, the
occurrence of three such serious violations on the same day in
the same mine is a cause for very serious concern. Greater care
must be taken.
If a case such as this involving this operator
comes before me in the future I will not approve settlements of
even these substantial amounts because it will then be clear that
even greater deterrence in the form of higher penalties is
needed.
Because the recommended settlements are for substantial
amounts which appear adequately to effectuate the statutory
purposes in this instance, said settlements are APPROVED and the
operator is ORDERED TO PAY $2400 within 30 days from the date of
this decision.

Paul Merlin
Chi
Administratiave Law Judge

1227

Distribution:
William Lawson, Esq., U.S. Department of Labor, Office of the
Solicitor, Suite 201, 2015 Second Avenue North, Birmingham, AL
35203 (Certified Mail}
Harold D. Rice, Esq., R. Stanley Morrow, Esq., Jim Walter
Resources, Inc., P.O. Box C-79, Birmingham, AL 35283
(Certified Mail)
H. Gerald Reynolds, Esq., Jim Walter Corp., 1500 Dale Mabry Hwy.,
Tampa, FL 33607 (Certified Mail)

slk

1228

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

22041

AUG 14 1986
DAN L. THOMPSON,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. WEST 85-77-DM
MSHA Case No. MD 82-27

GILBERT INDUSTRIAL,
Respondent

Cyprus Thompson Creek Project

DECISION DENYING JOINDER
On July 22, 1986, the Complainant filed with this Commission a request for joinder of the Secretary of Labor as a
"party-respondent" in this case of discrimination under
section 105(c) of the Federal Mine Safety and Health Act of
1977, the "Act," and as grounds therefore stated as follows:
This matter has been allowed to languish, wrongly,
for approximately five (5) years.
It is only with
the intervention of the Commission that MSHA has
even nominally been willing to address their
statutory responsibility [presumably under section
105(c)(3) of the Act] to resolve this matter.
At
this juncture, the Complainant simply does not know
what it is that the Secretary has done to fairly
investigate and/or assess the underlying Complaint
hereino Without the inclusion of the Sec~etary, so
as to be subject to service of process? can the
Complainant fully present the facts of this matter
to the Commissiono
FEDo R. CIV. P. 19{a) applicable hereto by virtue of
Commission Rule l(b)q 29 C.F.R. § 2700.l(b), provides in
relevant part as followsg
A person who is subject to service of process and
whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall
be joined as a party in the action if Cl) in his
absence complete relief can not be accorded among
those already partiesr or (2) he claims an interest
relating to the subject of the action and is so
situated that the disposition if the action in his
absence may Ci) as a pratical matter impare or
impede his ability to protect an interest or Cii)
leave any of the persons already a party subject to
a substantial risk of incurring double, multiple,
or otherwise inconsistent obligations by reason of

1229

his claimed interest.
If he has not been so joined
the court shall that he be made a party • • • •
The Secretary opposes joinder arguing that there are no
circumstances under which the exercise of his discretionary
function under section 105(c)(3) can constitute discrimination
under section 105{c).~/ Roland v. Secretary of Labor, 7 FMSHRC
630 (1985), aff'd Roland v. Federal Mine Safety and Health
Review Commission et al., No. 85-1828 (10th Cir. July 14, 1986).
Under the present status of law the Secretary's position must
prevail. Under these decisions review of the Secretary's
exercise of this function is not permitted regardless of how
wrong, negligent or improperly motivated it might be. Accordingly this Commission could not in any event provide the relief
sought by the Complainant against the Secre ary.
There is
therefore no basis for the joinder of the s retary in this
proceeding. Under the circumstances the Mot on for Joinder of
the Secretary as a party-resp nde t is denie •
,

Distribution:
W. Craig James, Esq., Skinner, Fawcett & Mauk, 515 South
Sixth Street, P.O. Box 700, Boise, Idaho 83701 (Certified
Mail)
Ronald F. Sysakv Esq.v Prince, Yeates & Geldzahler, Third
Floor Mony Plaza, 424 East Fifth South, Salt Lake City, Utah
84111. (Certified Mail)
Frederick Moncrief, Esq., U.S. Department of Labor, Office of
the Solicitor, Suite 400, 4015 Wilson Blvd., Arlington, VA
22203 (Certified Mail)

!7 Section 105(c}(3) of the Act provides in part as follows:

"Within 90 days of the receipt of a complaint filed
under paragraph (2), the Secretary shall notify, in writing,
the miner, applicant for employment, or representative of
miners of his determination whether a violation has occurred.
If the Secretary, upon investigation, determines that the
provisions of this subsection have not been violated, the
complainant shall have the right, within 30 days of notice of
the Secretary's determination, to file an action in his own
behalf before the Commission, charging discrimination or
interference in.violation of paragraph Cl}.
rbg

1230

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

SOUTHERN OHIO COAL COMPANY,
Contestant

22041

AUG i 4 1986

CONTEST PROCEEDINGS
Docket No. WEVA 86-46-R
Citation No. 2703324; 10-16-85
Docket No. WEVA 86-98-R
Citation No. 2703528; 1-13-86

v.

Docket No. WEVA 86-104-R
Citation No. 2704403; 1-22-86
Docket No. WEVA 86-105-R
Citation No. 2704404; 1-22-86

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

Docket No. WEVA 86-106-R
Citation No. 2704405; 1~22-86
Docket No. WEVA 86-107-R
Citation No. 2704406; 1-22-86

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 86-51
A.C. No. 46-03805-03688
Docket No. WEVA 86-133
A.C. No. 46-03805-03707
Docket No. WEVA 86-134
A.C. No. 46-03805-03708

v.

Docket No. WEVA 86-199
A.C. No. 46-03805-03712
SOUTHERN OHIO COAL COMPANY,
Respondent

Martinka No. 1 Mine

DECISION
Appearances:

Before:

Susan M. Jordan, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, PA, for
Respondent/Petitioner;
David A. Laing, Esq., and Marks. Stemm, Esq.,
· Southern Ohio Coal :::orapafiy, Columbus, OH, for
Contestant/Respondent

Judge Fauver

1231

These consolidated proceedings are contests filed by
Southern Ohio coal Company, under section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801,
et seq., to review six citations issued by the Secretary of
Lab~and
tions by the Secretary, under section llO(i)
the Act, for civil penal
s for the violations alleged
in the six citations.
The basic issue is whether water pumps specified in the
citations are "permanent pumps" within the meaning of 30
C.F.R. § 75.1105.
If they are permanent pumps, the s
standard requires that they be contained in fireproof housing
and that they be air-vented into a return entry of the mine.
It is acknowledged that they were not so housed and vented
at the time the citations were issued. Other issues raised
are:
1.

Whether the reference to "permanent pumps"
30 C.F.R. § 75.1105 is unconstitutional

2.

Whether MSHA's actions with respect to
interpretation and enforcement of 30 C.F.R.
§ 75.1105 have denied SOCCO due process.

3.

Whether the water pump violations, if any,
were "significant and substantial" within
the meaning of§ 104(d) of the Act.

vague.

Having considered the 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
1. Citation No. 2703324 was issued October 16, 1985,
when MSHA Inspector John Paul Phillips observed that the air
current used to
late a booster pump was not vented
directly into the return.
The pump was a 20 Horsepower T &
T fresh water pump located at the No. 9 stopping inby.
The
pump was reasonably expected to be in
s location at
st
one year.
2.
Citation No. 2703528 was issued January 13, 1986,
when Inspector Phillips observed
a gathering pump was
not housed in a fireproof enclosure or area with the air
current coursed direc
into the return.
The pump was a 10
Horsepower T & T 250 volt direct current pump located at No.
9 stopping in the track heading of the No. 13
ft section.
The pump had been in this location about a
ar and a half.

1232

3. Citation No. 2704403 was issued January 22, 1986,
when he observed that a booster pump was not housed in a
fireproof structure and the air current used to ventilate
the pump was not coursed directly into the return.
The pump
was a 20 Horsepower T & T
water pump located at No. 6
stopping. The pump had been in this location at least one
4. Citation No. 2704404 was issued January 22, 1986,
when he observed that a gathering pump was not housed in a
fireproof structure with the air current coursed directly
into the return.
The pump was a 10 Horsepower T & T direct
current pump located at No. 50 Block, 1 East Track.
The
pump had been in this location for about three to five
years.
5. Citation No. 2704405 was issued January 22, 1986,
when he observed a gathering pump not installed in a fireproof
area with
current vented directly into the return.
The pump was a 10 Horsepower T & T direct current pump
located at the No. 9 stopping in the No. 3 Butt Section.
The pump had been in this location at least one year.
6. Citation No. 2704406 was issued January 22, 1986,
when he observed a gathering pump not housed in a fireproof
structure with the air current vented directly into the
return.
pump was a 10 Horsepower T & T pump located at
No. 21 stopping in the No. 3 Butt Section.
The pump had
been in this location for at least one year.
7o
None of the pumps cited was in a working section.
Nor did the pumps advance with any working section.

8. Given the length of time at each location, and each
pump's function and expected use, long-term installation and
use of each pump were clear
established by the evidence.
Booster
9.
The function of a booster pump is to boost
water pressure at the working faces in the working sections
inby the pump.
There are 10 booster pumps in the mine. At
time of hearing, all were located in the track haulage
entry outby the working sections.
Booster pumps generally
stay in the same location until the sections served by them
are driven up and
led back on retreat.
They are usually
in the same place at least one year.

1233

Gathering Pumps
10. The function of a gathering (or "dewatering"} pump
is to pump water from local swags along the track or in the
intake entry, and discharge the water into the main reservoir
or into a main sump area.
There are 39 gathering pumps at
the mine. At the time
hearing, each was located in the
track entry, outby the working sections. A gathering pump
usually stays in the same place until an inby section is
driven up and the longwall goes in and retreats to the area
where the pump is located; then the pump is moved. They
usua
stay in the same place for at least one year.
DISCUSSION WITH FURTHER FINDINGS
The essential facts are not in dispute.
Inspector John
Paul Phillips, an electrical inspector out
MSHA's Morgantown,
West Virginia, District
, began an electrical inspection
at Martinka in October, 1985. Inspector Phillips issued six
§ 104(a} citations for violations of 30 C.F.R. § 1105 between
October 16, 1985, and January 22, 1986.
Inspector Phillips issued Citation Nos. 2703324 and
2704403 when he observed that two 20 Horsepower fresh water
"booster" pumps were not housed in fireproof structures and
the
currents used to ventilate the pumps were not coursed
direc
into the return. Citation Nos. 270328, 2704404,
2704405, and 2704406 were issued when he observed that four
10 Horsepower "gathering" pumps were not housed in fireproof
structures and air currents ventilating the pumps were not
coursed directly into the return. None of the pumps involved
in these citations was located in a working section. Nor
did
the pumps advance with any working section.

1234

Regular inspections of the Martinka Mine are performed
by MSHA inspectors out of the Subdistrict Office in Fairmont,
West Virginia, which operates under the direction of the
Morgantown District Office. After several of the citations
involved here were issued, it became apparent that a difference
in policy existed between the District and the Subdistrict
Offices regarding the citation of permanent pumps for a
violation of § 1105. At least one inspector from the Fairmont
Office, Charles Thomas, who was the regular inspector at
Martinka, operated under a "visibility standard" in citing
permanent pumps for § 1105 violations. Under this approach,
pumps located in frequently traveled areas or in track
haulage entries were not cited for violations of § 1105.
Permanent pumps in more isolated areas were cited.
Inspector Thomas' approach was at odds with District
and National Office policy, which subjects all pumps to § 1105
requirements if they meet the definition of a "permanent"
electrical installation as contained in the following part
of MSHA's Underground Inspection Manual p. II-471 (March 9,
19 7 8) :
POLICY
A permanent electrical installation is electric
equipment that is expected to remain in place
for a relatively long or indefinite period of
time.
Consequently, the following electric equipment
should be considered permanently installed:
All rectifiers, transformers, highvoltage switchgear and battery
chargers which are not located on
and advanced with the working
section; rotary converters; motorgenerator sets; belt drivers; compressors; pumps (except those excluded below) and other similar units
of electric equipment.
The following electric equipment should not
be considered permanently installed:

1235

Electric equipment which is located on
and advanced with the working section,
self-propelled electric equipment, portable pumps and portable rock dusters-which are regularly moved from one location in the mine to another, and similar
electric equipment.
(Emphasis supplied.)
All of the cited pumps meet the Manual definition of a
permanent installation. They were not located in working
sections and did not advance with working sections. They
did not regularly move from one location in the mine to
another. When installed they were expected to remain in
place for a relatively long or indefinite period.
The citations allege a violation of 30 C.F.R. § 75.1105,
which is a verbatim restatement of § 3ll(c) of the Act:
Underground transformer stations, batterycharging stations, substations, compressor
stations, shops and permanent pumps shall be
housed in fireproof structures or areas. Air
currents used to ventilate structures or areas
enclosing electrical installations shall be coursed
directly into the return. Other underground
structures installed in a coal mine as the
Secretary may prescribe shall be of fire-proof
construction.
(Emphasis supplied.)
The term "permanent pump" is not specifically defined
in the Act or Regulation.
Section 3ll(c) of the Act.and§
1105 of the Regulations were contained in the earlier Act of
1969. Permanent pumps were not specifically defined there
either. Neither legislative history nor case law is helpful
on the issue of what constitutes a permanent pump.
It is
clear, however, that the purpose of § 1105 is to protect
miners against fire and smoke inhalation.
It is part of a
larger section dealing with fire protection in coal mines.
This purpose coupled with the broad language of the standard
leads to the conclusion that the standard is meant to have a
broad reach to effectuate the purposes of the standard and
the Act.

1236

MSHA has interpreted the term "permanent pump" to mean
a pump that is expected to remain in place for a relatively
long or indefinite period of time.
This definition is
contained in the MSHA Underground Manual quoted above.
The
Manual has been in effect since its publication in March
1978.
Respondent contends that use of the term "permanent
pump" in the standard is unconstitutionally vague and overbroad.
In order to be constitutional, a standard must not be "so
incomplete, vague, indefinite or uncertain that men of
common intelligence must necessarily guess at its meaning
and differ as to its application." Connolly v. Gerald Constr. Co.,
269 U.S. 385, 391 (1926).
Rather, "Laws [must] give the
person of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly."
Grayned v. City of Rockford, 408 U.S. 109 (1972).
A standard is not unenforceably vague if a reasonably
prudent person familiar with the mining industry and protective
purposes of the standard would recognize the hazardous
condition which the standard seeks to prevent.
Secretary v.
Ozark-Mahoning Co., 3 FMSHRC 2117, 2118 (1986); Secretary v.
U.S. Steel, 3 FMSHRC 1550, 1533 (1984).
"Broadness is not
always a fatal defect in a safety and health standard."
Secretary v. Alabama By-Products Corp., 2 FMSHRC 1918, 1920
(1982)
Many standards must be drafted in general terms "to
be broadly adaptable to myrad circumstances" in a mine.
Secretary v. Kerr-McGee Corp., 2 FMSHRC 1492, 1493 (1981).
In two cases involving a safety belt standard, the
Commission rejected the operators' arguments that 30 C.F.R.
§ 55.15-5 was unconstitutionally vague and ambiguous.
Secretary v. U.S Steel, 3 FMSHARC 1550 (1984); Secretary v.
Great Western Electric,
2 FMSHRC 2121 (1983).
That standard
requires that safety belts and lines be worn by miners where
there is a "danger of falling." The operators objected on
the grounds that the standard's phrase "danger of falling"
was too vague and ambiguous to enable an operator to define
all situations where belts and lines must be worn.
The
Commission ruled, however, that application of a. broad
standard to particular factual situations did not offend due
process.
Sufficient clarity may be provided if an alleged
violation is judged by a test of what actions would have
been taken under the same or similar circumstances by a

1237

reasonably prudent person famil
with the mining industry,
relevant facts, and protective purpose of the standard.
3
FMSHRC at 1553; 2 FMSHRC at 2122.
The Commission noted that
the specific purpose of § 57.15-5 is the prevention of
falls.
It ruled that by requiring positive means
protection
whenever any danger of falling
sts, the standard reasonably
achieved its
e of protecting all miners. Applying
this rationale to the instant cases, I conclude that it is
reasonable to
§ 75.1105 to a booster or gathering pump
expected to remain in place for a long or an indefinite
period outby a working section or sections.
Respondent further argues that the Manual definition of
"permanent"
the Administrative Procedure Act (5
u.s.c. § 553). Section lOl(a)
the 1977 Mine Act (30
u.s.c. § 8ll(a)) requires all
concerning mandatory
health or safety standards to be promulgated in accordance
with§ 553 of the A.P.A. Further, § lOl(a) (2) requires the
Secretary to publish in the Federal Register any 11 proposed
promulgating, modifying, or revoking a mandatory health
or safety standard" and to permit public comment on the
proposed regulation.
Therefore, there would be a violation
of the A.P.A. if the Manual policy were more than an interpretation
or general statement of policy. However, I find that the Manual
inition is a general policy statement of MSHA's interpretation
of "permanent." It is not subject to the A.P.A. 's notice
and comment requirements.
Respondent also contends that the conflicting enforcement
licies of MSHA 1 s
strict (Morgantown) and Subdistrict
(Fairmont) Offices will result
a denial of due process if
MSHA is permi
to charge a vio
on in these cases.
It is c
the record that it is MSHA's official
policy to follow the Manual def
of permanent electrical
installations
determining whether a particular pump is
11
permanent."
s approach is
llowed by the Morgantown
strict Office, as stated by In
John Paul
llips
Electrical
sor Mike
In addition, Gene
Fuller, Safety
alist from
MSHA National
testified that
s is a nationwide enforcement

38

The fact that the Subdistrict Office in Fairmont may
have had a less stringent enforcement policy for some period
does not estop the Secretary from enforcing the Manual
definition in these cases. Respondent has had a copy of
the 1978 Manual for many years.
It was put on notice by
Inspector Phillips' discussion and subsequent citations in
September, 1985, that the Manual definition would be enforced
at Respondent's mine.
The citations at issue in these cases
were issued a month after such notice by Inspector Phillips.
The policy previously applied by the Fairmont Subdistrict
Off ice was unauthorized and was contrary to national policy
as shown by the Manual, which provides that "The guidelines
in this chapter supersede all previous instructions as of
February 1, 1978, relating to the same subject category."
The
tuation was corrected by the District manager upon
learning of the conflict. All subdistrict supervisors and
personnel have been brought into line with National Office
policy.
In Secretary of Labor v. King Knob Coal Company, Inc.,
3 FMSHRC 1417, 1422 (1981), the Commission stated:
•.. [An] estoppel defense would be inconsistent
with the liability without fault structure of
the 1977 Mine Act. See El Paso Rock Quarries,
Inc., 3 FMSHRC 35, 38-39 (1981). Such a defense
really a claim that although a violation
occurred, the operator was not to blame for it.
Furthermore, under the 1977 Mine Act, an
equitable consideration, such as the confusion
engendered by conflicting MSHA pronouncements,
can be appropriately weighed in determining
the penalty ..••
Even in those cases where the courts have recognized an
estoppel defense, it has been held that estoppel does not
apply "if the government's misconduct [does not] threaten to
work serious injustice and if the public's interest would ... be
unduly damaged by the imposition of estoppel." King Knob, 3
FMSHRC at 1422, quoting United States v. Lazy F.C. Ranch,
481 F.2d, 985, 989 (9th Cir. 1973).
In view of the availability
of penal
mitigation as an avenue of equitable relief,
finding an operator liable would not work such a "profound
and unconscionable injury" that estoppel should be invoked.
King Knob, 3 FMSHRC at 1422.
In order to be considered a ''significant and substantial"
violation, it must be found that:

1239

••• 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
a reasonably serious nature.
Secretary v. Cement Division, National Gypsum Co.,
3 FMSHRC 822,
981).
Under this test, a ''significant and substantial" finding
turns on whether a reasonable likelihood of harm exists due
to the violation. The inspector issued the citations when
he observed that the pumps were not hous
in fireproof
structures with the air currents vented directly into the
return. All six pumps were in working order and had energized
circuits at the time the condition was c
The inspector
fied that any
the equipment could wear out, motors
could fail or short circuit. Events of this nature could
happen with electrical equipment after any length of time.
He stated that if a pump got hot, it could ignite the coal
or
combustible materials around it. He also stated that
in
s opinion, "even smoke from insulation in the pump,
when they fail, could ignite or cause fumes that would be
harmful to employees" (Tr. 30).
MSHA Electrical Supervisor Hall also testified as to
similar hazards presented by failing to house and vent the
pumps.
The Commission
ized in National Gypsum that
tor's "independent judgment is an important element
making 'significant and substantial' findings, which should
not be circumvented." 3 FMSHRC at 82 826. The inspector's
conclusions in this case were based on his observations of
unhoused and unvented pumps and the number of employees who
would have been af
by fire or smoke moving into the
working sections. The inspector made a careful assessment
of the conditions he observed and concluded that the hazard
was reasonably
e or reasonably likely.
I
t
his expert opinion on these matters, and find that the
violations were ''significant and substantial" within the
meaning of section 104(d) of the Act.

In assessing civil penalties, I give substantial weight
to the confusion created by MSHA's inconsistent enforcement
policies at its Morgantown District and Fairmont Subdistrict
Offices.
I find this to be a substantial mitigation of the
violations, and conclude that a civil penalty of $10 for each
violation is appropriate.
CONCLUSIONS OF LAW

1. The Conunission's administrative law judge has
jurisdiction in this proceeding.
2.
Respondent violated 30 C;F.R. § 75.1105 as alleged
in Citations Nos. 2703324, 2703528, 2704403, 2704404, 2704405,
and 2704406.
3.
Respondent is ASSESSED a civil penalty of $10 for
each of the above six violations.
ORDER
WHEREFORE IT IS ORDERED that:
1.
Citations Nos. 2703324, 2703528, 2704403, 2704404,
2704405, and 2704406 are AFFIRMED.
2.
Respondent shall pay the above civil penalties in
the total amount of $60 within 30 days of this decision.

CJ~
~V-e/\_.
William Fauver
Administrative Law Judge
Distribution:
David A. Laing, Esq., Alexander, Ebinger, Fisher McAlister &
Lawrence, 1 Riverside Plaza, 25th Floor, Columbus, OH 432152388
(Certified Mail)
Matthew J. Rieder, Esq., and Susan M. Jordon, Esq., Office
of the Solicitor, U.S. Department of Labor, Room 14480
Gateway Building, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
kg

1241

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

(703)

22041

756-6220

AUG 191986
FRED O. W. ARNTZ,
Complainant

DISCRIMINATION PROCEEDING
Docket No. SE 86-47-DM

v.
MD 85-56
METRIC CONSTRUCTORS, INC.,
Respondent
ORDER OF DISMISSAL
Judge Broderick
On August 14, 1986, Complainant fil
a motion to dismiss
this proceeding because of a settlement
his discrimination
complaint against Respondent for the payment to Complainant
of $3500.
Therefore, it is ORDERED that the motion is GRANTED, this
proceeding is DISMISSED and the hearing scheduled for August 25,
1986 is CANCELLED.

Distribution:
Ronald S. Webster, Esq., Whittaker,
P.O. Box 531126, Orlando, FL 32853 (

Webster, P.A.,
Mail)

Dwane E. Vickstrom, Esq., The Jones
, One South Executive
Park, 6060 St. Albans St., Charlotte, NC 28287 (Certified Mail)
Mr. Fred O. w. Arntz, 4292 Azora Road, Springhill, FL 33526
(
Mail)
slk

1242

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

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

AUG 211986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 86-12-M
A. C. No. 09-00265-05505

v.
Junction City Mine
BROWN BROTHERS SAND COMPANY,
Respondent
DECISION
Appearances:

Ken S. Welsch, Esq., Office of the Solicitor,
U. S. Department of Labor, Atlanta, Georgia,
for the Petitioner
Messrs Carl Brown, Steve Brown, and Greg
Brown, Howard, Georgia, for the Respondent

Before:

Judge Kennedy

This matter came on for a hearing in Columbus, Georgia
in June 1986. The parties' stipulations as to jurisdiction,
size, prior violations, ability to pay, and abatement are a
part of the record. Four of the seven violations charged
were cited for insignificant and insubstantial conditions.
At the conclusion of the presentation of evidence as to each
violation the trial judge entered a tentative bench decision.
As a result five of the seven violations were dismissed,
including one S&S violation. Of the two remaining violations
one was reduced from S&S to non-S&S and the other was
affirmed.
After receipt of the transcript the parties were afforded
an opportunity to file post-hearing briefs challenging the
tentative bench decisions.
Based on a review of the evidence in the record considered as a whole, I find each of the tentative decisions
should be, and hereby is, CONFIRMED for the reasons set forth
in the transcript and as supplemented below.
Citation No. 2007655
On July 19, 1985, the windshield on a John Deere 644-B
front-end loader was cited for a non-S&S violation of 30 CFR

1243

56.9-11 at respondent's sand mine in Junction City, Georgia.
This mandatory standard requires the safety glass in cab
windows be in "good condition." Inspector Mattson's 104(a)
citation alleged the windshield was "broken and spider-webbed
cracked right through the windshield from top to botton."
Elaborating in response to questions from the bench, the
inspector testified that the windshield measured 34 by about
36 inches; that the "entire windshield," some 1,224 square
inches, was spider-webbed cracked on both sides starting from
the upper left corner, which had a hole in it, and spreading
throughout the windshield down to the "weather seal" at the
bottom. The inspector said the condition of the windshield
made 11 vision--visibility bad for the operator, especially
when he got glare from the sun."
The inspector testified he understood the requirement
that the safety glass be in "good condition" to mean that it
"be free of cracks and broken glass • . • and kept clean."
As far as the hole was concerned he felt that was not a
"problem" but that the spider-web cracks were because they
obstructed the operator's vision. Despite this, the
inspector did not consider the condition hazardous because it
was a 11 small operation, and there's very little foot traffic
around, and what he's doing is doing clean-up work and
loading trucks." The inspector said that in his judgment,
the likelihood of injury to an employee was "minor" and
"remote."
In response to further questions from the bench, the
inspector said that he considers a windshield to be in "good
condition" if "you have little cracks in the corner and so
forth that doesn't obstruct the vision" and in "excellent"
condition if it has "no cracks at all and it be kept clean
and no cracks or no cloudiness from the sun from age." The
inspector said he felt this windshield was below par for
"good" because the spider-web cracks throughout the glass
obstructed vision and created "eyestrain" and "glare" from
the reflection of light through the cracked glass.
The inspector's description was at almost totally
variance with the facts. At the time the inspector testified
neither he nor his lawyer knew the operator had a picture of
the windshield in question taken shortly after the citation
was written and before it was replaced. He was shown this
picture on cross examination but said he could not identify
it because it did not show a "hole" in the "upper left
corner." In its rebuttal case, the operator conclusively
established that the picture of the windshield in the 644-B
loader COX-6) had no "hole" in the "upper left corner," in
fact it had no hole at all. The picture also shows that the
windshield was not cracked with spider-webs from top to
bottom. There were only two large cracks that extended from
the point of impact at about the center line of the glass

through the operator's line of vision and to the side or
bottom of the glass.
In addition, there were eight to ten
hairline cracks radiating from the point of impact but no
broken glass.
Mr. Gregg Brown, the foreman, who took the photograph
testified he was very familiar with the 644-B loader; that
the crack on that glass was "right in the middle of the
windshield" but that there was no "hole" in the windshield;
that the windshield was not cracked through and that when
seated in the vehicle the large crack "in the middle" was
above the operator's line of vision. He further testified
that if the crack had obstructed the operator's line of
vision he would have replaced it. Mr. Lucas, a loader operator, testified the cracks in the glass did not interfere with
his operation of the machine.
Despite the fact that all the witnesses agreed that whatever impairment of vision existed did not make operation of
the loader unsafe, the Solicitor argued and continues to
argue that the "slightest impairment of vision" means the
glass is not in "good condition" and constitutes per se a
non-S&S violation.
In his post-hearing brief, the Solicitor
also asserts that "good condition" clearly implies an
unbroken window. Since the undisputed evidence from the
photograph (OX-6) and the testimony of the operator's witnesses conclusively show that the windshield in the 644-B
loader, while cracked, was not "broken," the Solicitor's
argument is obviously fatally flawed.
I find that as properly interpreted the standard was
intended to promote safety not the sale of safety glass.
Since the hazard against which the standard was directed,
likelihood of injury to the loader operator or foot traffic,
did not exist, I conclude the condition of this windshield
was "good" and that the violation charged did not, therefore,
occur.
Citation No. 2521743
On the same date as the previous citation a John Deere
644-C front-end loader was also cited for a non-S&S violation
of 30 CFR 56.9 1. Inspector Grabner's 104(a) citation
charged the windshield was "broken 'spider-web crack.'" In
his testimony he described the windshield as "spider-webbed
cracked the entire length of the windshield, from side to
side, and from height to width." He further testified that
the loader was being used to "push material into the surge
pile" and to "clean up and load trucks." He said it was his
observation that the "visibility of the operator to see
through was obstructed by the number of cracks that ran the

1245

length and width of the windshield." He said the citation
was for a violation considered insignificant and insubstantial because "I didn't feel that • • • the operator's vision
was impaired as far as being able to see out the windshield
clearly • . . In other words it was not much exposure to foot
traffic in the area of people around it." When shown the two
photos of the windshields (OX-5 and OX-6) on cross examination, the inspector could not identify the windshield he was
testifying about.
In response to questions from the bench, the inspector
contradicted his earlier testimony and said that while the
condition of the windshield did not make it unsafe to operate
the loader, "the condition of the windshield made it difficult for the operator to have goodi clear vision out the
front of the machine." Nevertheless, the inspector affirmed
that "even with the amount of spider-webbing we had here," he
did not consider it unsafe to operate the loader.
Once again it was difficult to credit the inspector's
description of the condition because the contemporaneous
photograph of the windshield, made within a month after the
citation was written, shows the only cracking or spiderwebbing was in the upper left quadrant and that there was no
cracking or spider-webbing in the lower half of the windshield (OX-5). Mr. Gregg Brown, who took the photo, testified
the picture showed essentially the same condition that existed
on July 19 and that "it didn't continue to shoot spider
cracks every which-a-way, no sir. It reached certain--say
side to side, and then it stopped." He further testified
that
ter impact the glass did not shatter, that there was
no broken glass, and that there was no "hole in either one of
the windshields."
Mr. Gregg Brown, the operator's foreman and a part owner
of the business, said it was the operator's policy to replace
any windshield that had been hit and cracked in the middle so
as to obstruct the operator's line of vision. Mr. Brown said
he did not consider the 644-C windshield needed replacing
because "There's still fifty percent or more of that windshield that is not obstructed, and I did not feel that his
line of vision was impaired." On cross examination, Mr. Brown
pointed out that while the vision of an operator who had to
look through the upper left quadrant to load a truck might
have some impairment there was a side window through which he
could also look to align his vehicle. He also said the
loaders were seldom used to load the trucks as they usually
loaded off the conveyor belt.
Counsel for the Secretary argued that the test he applied
to determine whether there was a violation was whether there
was "even the slightest impairment" and not whether the condition created a hazard to the operator or miners working on

1246

foot around the area. Later he argued that "'good condition•
means the windshield should not have any cracks in it whatsoever; otherwise • • • you could purchase and install cracked
windshields in any vehicle." In his post-hearing brief,
counsel argues that "Visibility should not be considered
relevant in establishing a violation." Needless to say, this
extreme contention was contradicted by the testimony of both
inspectors as well as the operator's witnesses.
Since I cannot agree that the standard "good, 11 a comparative term, can properly be interpreted as "perfect" or that a
de minimis likelihood of injury mandates the compulsory
replacement of windshields with insignificant cracks I must
once again reject the solicitor's interpretation and find the
violation charged did not, in fact, occur.
Citation Nos. 2521413 and 2521414
On September 4, 1985, two inspectors returned to the
operator's plant to check on the abatement of the windshield
violations and to continue the regular inspection begun in
July. At that time Inspector Manis wrote two 104(a)
citations, the first being non-S&S and the second S&S.
The citations charged a violation of the guarding standard, 30 CFR 56.12-23. More specifically, they charged that
at the No. 2 and 3 pumps there were four unguarded openings
that exposed uninsulated inter electrical parts carrying 220
volts to possible contact.
(Exhibits lA, B, C, and D; 3A, B,
C, and D; PX-6 and 8). It was further alleged that these
openings were not guarded by location and that at the No. 2
pump the area was wet and an operator was in the area. These
charges collapsed when the operator produced a vido tape,
witnesses and expert testimony which showed that there was no
electrical voltage in the connections cited within six to
eight seconds after the motors were started. (Tr. 112-113,
167).
Since there was no recognizable electrical shock hazard,
I found the violations did not, in fact, occur.
In his posthearing brief, counsel appears to concede this but claims the
issue now to be decided is "whether the openings were
protected by location." Since I find there was no hazard to
be guarded against, I also find the question of whether the
openings were guarded by location is moot.
Citation No. 2521467
During the inspection of September 4, 1985, Inspector
Grabner observed that a grounding wire for the control panel
for the pole mounted 220 volt electrical disconnect switch
for the shaker had been pulled lose from the earth grounding
rod.
In the absence of a ground, the condition created a

1247

potential shock hazard to the shaker operator. For this
condition, the inspector wrote a section 104(a), S&S citation
charging a violation of 30 CFR 56.12-25. The violation was
considered S&S because the operator had to turn the switch
off and on several times a day.
Respondent did not deny that the condition alleged
existed but attempted to show there was another power ground
that went back to the substation through an underground cable.
The only photograph of the location, however, clearly showed
only three, not four, wires coming from the substation
(PX-10).
In the absence of a showing that a power ground
wire was connected to the disconnect switch, I found this
violation did, in fact, occur and that it was significant and
substantial. The gravity was, of course, serious but negligence was only modest. After considering the other criteria,
I found, and affirm, that the amount of the penalty warranted
is that proposed, namely, $126.
Citation No. 2521468
On September 4, 1985, Inspector Grabner also observed a
single unguarded 110 volt incandescent light bulb in the
surge tunnel. usually, the tunnel was lit by florescent
lighting located above the conveyor belt. The light bulb was
temporary until the florescent lighting in the area. could be
repaired. The tunnel was about 5 feet, 6 inches high and the
light bulb was suspended approximately 5 feet, 3 inches above
the walkway. Miners passing through the tunnel would have to
bend forward to walk through the tunnel and under or around
the light bulb. The inspector wrote a 104Ca), S&S citation
charging a violation of 30 CFR 56.12-34 for failure to guard
the light bulb. The inspector considered the violation S&S
because he belived that the bulb could easily be struck by
miners traveling the area and that such contact could
possibly have caused "burns, shock or cuts from broken glass."
A penalty of $126 was proposed.
There was no dispute about the existence of the condition charged. Respondent offered a video tape of the area
which lent support to its argument that the bulb was located
to the side of the walkway, not directly above it. I found a
preponderance of the evidence showed the bulb was in suff iciently close proximity to the walkway that it could be
struck by an individual passing through but that the likelihood of a burn, shock or cut from broken glass was so remote,
speculative, and unlikely that the S&S finding must be
vacated. This was predicated on the fact that miners passing
through the area would be wearing hard hats and sufficient

1248

clothing including protective clothing such as glasses and
gloves to protect them from burns or cuts and that it would
be most unlikely for anyone to grab the exposed filament of a
broken light bulb, assuming, without deciding, that such a
contact might result in an electrical shock.
Accordingly, I affirm my finding that the violation
charged did, in fact, occur, that it was not serious, that
the negligence was slight and that, after considering the
other criteria, the amount of the penalty warranted should be
reduced from $126 to $10.
itation No. 25214 9
While Inspector Manis was writing his citation for the
alleged failure to guard the electrical connections on the
No. 3 pump motor, Inspector Grabner wrote his third citation
of the day. This stemmed from his observation of an alleged
unguarded keyway on a 10 1/2 inch long shaft that protruded
from the No. 3 motor some 43 inches off the motor platform.
It was not claimed that the shaft itself was a hazard but
that the keyway which was cut into the shaft to some unspecified depth might, because it was rusted and rough, catch or
entangle someone's clothing and possibly strang
them
(PX-13).
Because this was unlikely Inspector Grabner wrote
only a 104(a}, non-S&S citation for which a $20 penalty was
proposed.
The evidence showed that because of its location the
likelihood of anyone coming into contact with the keyway
while the motor was running was extremely remote, if not
entirely speculative. Only a maintenance man regularly went
near the shaft and then only when the motor was turned off.
Anyone else wishing to approach the shaft would have to climb
an 8 to 10 foot high stairway, step over a large discharge
pipe, and other obstacles and make several sharp turns to
even get near it. Even so there was no pinch point and the
likelihood of a piece of clothing from a man's waist or neck
becoming so entangled in the open keyway in such a way as to
inflict an injury, let alone strangulation, was so
inexplicable as to defy description or belief. In fact, the
inspector admitted he found the violation to be non-S&S
because it was unlikely to cause injury to anyone (Tr. 239).
For these reasons, I found the violation charged did not, in
fact, occur.
I see no reason to change that determination.
The premises considered, therefore, it is ORDERED:
1.

That for the two violations found the operator
pay a penalty of $136 on or before Friday,
September 19, 1986.

1249

2.

That as to the othe five violations the
petition for asses m nt of civil penalties be,
and hereby is, DI M SED.

oseph B. Kennedy
Administrative Law
Distribution:
Ken Welsch, Esq., Office of the Solicitor, u. s. Department
of Labor, 1371 Peachtree Street, N.E., Room 339, Atlanta, GA
30367 (Certified Mail)
Mr. Carl Brown, Brown Brothers Sand Company, P. O. Box 32,
Howard, GA 31039 (Certified Mail)
dcp

1250

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 2 61986

DISCRIMINATION PROCEEDING

FRANK McCOART,
Complainant

Docket No. KENT 86-63-D
CD 86-05

v.

No. 2 UG Mine

ELM COAL COMPANY,
Respondent

DECISION APPROVING SETTLEMENT
Appearances:

Frank McCoart, Van Lear, Kentucky, pro se:
Michael J. Schmitt, Esq., Wells, Porter,
Schmitt & Walker, Paintsville, Kentucky,
for Respondent.

Before:

Judge Maurer
Statement

the Case

This is a discrimination proceeding initiated by the
complainant against the respondent pursuant to section
105(c) of the Federal Mine Safety and Health Act of 1977,
charging the respondent with unlawful discrimination
against Mr. McCoart for exercising certain rights afforded
him under the Act. A hearing in this matter was convened
in Prestonsburg, Kentucky, on August 5, 1986. After commencing his case-in-chief, Mr. McCoart moved for a continuance so that he might obtain counsel to assist him in
preparing and presenting his claim.
I granted this motion
over objection of respondent's counsel and the hea~ing was
continued at that point.
Subsequently, the parties have jointly proposed a
settlement by a written motion to approve settlement filed
on August 8, 1986. That proposal contemplates a dismissal
of the complainant's claim against the respondent with
prejudice upon the following terms and conditions:
{l)
The respondent shall and has purged
the complainant's personnel file of all reprimands, warnings and disciplinary actions so
that such records will not reflect adversely
upon the complainant and inhibit his ability
to obtain future employment as a coal miner.

1251

(2)
The respondent has agreed to pay and
has paid to the complainant the sum of $3,000.00
in complete and total settlement of all of complainant's claims for monetary relief (backpay),
for reinstatement and for all claims whatsoever.
Conclusion
After careful review and consideration of the settlement
terms and conditions proposed by the parties in this proceeding, I conclude and find that it reflects a reasonable
resolution of the complaint. Further, since it seems clear
to me that all the parties, including Mr. McCoart personally,
are in accord with the agreed upon disposition of the complaint, I see no reason why it should not be approved.
ORDER
The proposed settlement is APPROVED. Respondent IS
ORDERED AND DIRECTED to ful
comply with the terms of the
agreement. Upon full and complete compliance with the
terms of the agreement, this matter-is DISMISSED .

.. a rer
ative Law Judge

Distribution:
Frank McCoart, General Delivery, Van Lear, KY
(Certified Mail)

41265

Michael J. Schmitt, Esq., Wells, Porter, Schmitt & Walker,
P. 0. Box 1179, Paintsvi
, KY 41240 (Certified Mail)

1252

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

August 25 / 19 86

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

CIVIL PENALTY PROCEEDING
Docket No. SE 86-57
A. C. No. 01-01247-03696

v.

No. 4 Mine

JIM WALTER RESOURCES, INC.,
Respondent
DECISION
Appearances:

~illiam

Lawson, Esq., Office of the Solicitor,

u. s. Department of Labor, Birmingham, Alabama,
for Petitioner; R. Stanley Morrow, Esq., and
Harold D. Rice, Esq., Birmingham, Alabama, for
Respondent.

Before:

J'udge lv'1erlin

This case is a petition for the assessment of two civil
penalties filed by the Secretary of Labor against Jim Walter
Resources, Inc.
It was heard as scheduled on August 5, 1986.
In accordance with their pre-hearing statements and at the
hearing the parties agreed to the following stipulations:
1.

the operator is the owner and operator of the subject

mine;
2. the operator and the mine are subject to the provisions
and jurisdiction of the Federal Mine Safety and Health Act of
1977;
3.

I have jurisdiction in this case;

4.
the MSHA inspector who issued the subject citations and
orders was and is a duly authorized representative of the
Secretary;

1253

5. true and correct copies of the subject citations and
orders were properly served upon the operator;
6. imposition
penalties will not affect the operator's
ability to do business;
7.

the operator is medium iu size;

8.

the operator's prior history of violations is average.

At the outset of the hearing the Solicitor and operator's
counsel moved for approval ot a settlement in the amount of $150
for Citation No. 2604923 which had been issued for a violation of
30 C.F.R. § 75.1707 because an intake escapeway was not separated
from the belt haulage entry. A two foot by four foot thermax
ock had been knocked out of the permanent stopping located
behind the power center. The violation was serious but
negligence was less than originally thought because the operator
had had the stopping replaced once but it had
llen out again.
The proposed settlement
$150 was approved.
Citation No. 2604926 was issued for a violation of
30 C.F.R. § 75.400 because a deposit of coal dust and float dust
had been allowed to accumulate in the cross-cut where the versatrac charger was located on the No. 2 longwall section. Approximately 23 hours later, Order No. 2604928 was issued pursuant to
section 104(b) of the Act because an inadequate
fort had been
made to clean up the accumulation. At the conclusion of the
inspector's testimony a recess was taken after which the parties
proposed a settlement based upon the following additional stipulations: the operator was negligent; there was not the requisite
good faith abatement with respect to the original citation but
there was good faith abatement with respect to the order; the
violation ~as serious but gravity was substantially less than
originally thought because there was no ignition source on the
section due to a breakdown
the machinery.
The proposed settlement of $450 was approved.
In view of the testimony, counsel are
encouraged to acquaint their witnesses with the applicable
definition of ''significant and substantial" as set forth in
Commission decisions.
ORDER
It is ORDERED that the operator pay $600 within 30 days from
date of this decision.

Paul Merlin
Chief Administrative Law Judge

1254

Distribution:
William Lawson, Esq., Office of the Solicitor, U. S. Department
of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL
35203
(Certified Mail)
R. Stanley Morrow, Esq., Jim Walter Resources, Inc., Post Office
Box C-79, Birmingham, AL 35283
(Certified Mail)
Harold D. Rice, Esq., Jim Walter Resources, Inc., Post Office Box
C-79, Birmingham, AL 35283
(Certified Mail)

H. Gerald Reynolds, Esq., Jim Walter Corporation, P.
22601, Tampa, FL 33622 (Certified Mail)
/gl

1255

o. Box

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

22041

AUG 2 61986

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 85-140-M
A. C. No. 15-00112-05504
Clover Bottom Underground

v.

M.A. WALKER COMPANY, INC.,
Respondent
DECISION
Appearances:

Mary Sue Ray, Esq., Off
of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
A. Walker, President, M. A. Walker Company,
Inc., McKee, Kentucky,
Respondent.

Before:

Judge Maurer

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to section
lOS(d) of the
Mine Safety and
Act of 1977,
30 u.s.c. § 801, et seq., the 11 Act, 11 charging the M.A.
Walker Company,
(walker) with
violations of regulatory standards. The issues before me are whether Walker
has committed the
lations as alleged and, if so, whether
those violations were of such a nature as could have significantly and
stantially contributed to the cause and
effect of a mine sa
or health haz
whether the
violations were "significant and subs
al 11 • If violations are found; it will also be neces
to determine the
appropriate
1 penalty to be assessed
accordance with
the criteria set forth in section llO(i) of the Act. Pursuant to notice, the case was heard in Berea, Kentucky, on
June 24, 1986.
Citation No. 2247898 alleges a 11 s
ficant and substantial11 viol
of the standard at 30 C.F.R. § 57.3022
and charges as
Ground conditions along haulageways and travelways was not scaled. This include the three
entries to the mine. Loose rock
frozen
ice was ob
on roof and ribs. The employee
enter the mine through these
Customer
truck go in and out through these
s.

1256

The cited standard requires that "[g]round conditions
along haulageways and travelways shall be examined periodically and scaled or supported as necessary."
Inspector Kenneth Ruffner of the Federal Mine Safety
and Health Administration (MSHA) performed an inspection at
the Clover Bottom limestone mine on January 30, 1985, when
he discovered the aforementioned condition. This condition
is more fully described in a technical report authored by
Mr. Richard R. Pulse, a geologist also employed by MSHA
(Secretary's Exhibit No. 4). Depicted therein are photographs of areas where loose rock slabs and rock overhangs
are present above and adjacent to the north, one-way portal
and the middle, two-way portal. Mr. Pulse reports that
many of these rocks are loosely keyed into the rock walls
and separated or detached rock slabs were observed to be
resting upon steeply inclined weathered shale slopes. In
his opinion, all of these could potentially slide or fall
into the mine roadway or into the portal entrances. The
report and the photographs contained therein document the
existence of numerous loose slabs of limestone resting upon
steep slopes above the portals and rocks loosely keyed into
place, above and adjacent to the access road and mine portals.
In the opinion of this geologist, it has taken
decades for this condition to develop, but these rocks
constitute a present danger to people entering
portals,
especially during periods of heavy rain or during cycles of
freezing and thawing.
Inspector Vernon Denton also testifi
concerning the
loose rock
observed at the two aforementioned portals.
He stated that it appeared to be all different sizes--from
the size of a bowling ball to something approaching table
size, including a large slab of rock about six (6) £eet
long, three (3) feet wide, and a foot thick.
The respondent's witness, Mr. James Denham, testi ed
of the extreme difficulty he had removing the rocks that
MSHA demanded be removed to abate the citation. For examp
he broke a 3/4 inch cable trying to pull one of the rocks
down that MSHA claimed was loose.
On the issue of whether loose rock existed along the
haulageways and travelways in the area of these two portals,
I must make a credibility choice.
Two mine inspectors are
of the
finite opinion that loose rocks existed in these
areas and their opinion is buttressed by the report of a
geologist who likewise concluded that numerous loose slabs

1257

of limestone existed resting on steep slopes above the portals. Weighing that formidable testimony against that of
the mine superintendent who essentially testified that because the rocks were difficult to pull down, in his opinion
they would not have fallen down, I must make the credibility
nding in favor of the Secretary, and thus find a violation
of the c
standard.
Under the circumstances herein, I find that it was
reasonably likely that the aforementioned loose rock could
fall down at any time, and if one of these large rocks that
the Secretary maintains was-Yoose fell, it would be reasonably likely that it could fall on one of the vehicles,
including customer's trucks, that go, into and out of the
mine and crush it.
I therefore find that the violation was
serious and "significant and substantial".
Secretary v.
Mathies Coal Company, 6 FMSHRC 1 (1984).
Furthermore,
is
undisputed that mine management knew of the condition prior
to the citation being issued.
They just didn't be eve that
it was a condition that needed correction.
I disagree and
find that their negligence was "high" as cited by the inCitation No. 2247378 was also issued on March 5, 1985,
by Inspector Ruffner and alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 57.9003
and
s as follows:
No. 2 Euc

haul truck did not have any brakes.

Ac
to Inspector Ruffner, he overheard a conversation between the men working at
Clover Bottom Mine
that there were no brakes on at
one of the trucks
be
used in the mine and that there was a danger of colli ng with one of the customer's trucks while they were
going in and out hauling
the stockpi
He a
the
safety director to let him test the brakes on the No. 1
and 2 trucks, which he did. When he tested the No. 2
truck, by having the driver acce
the truck over a
ned distance and then apply the brakes, he found
it to have no
, caused
his opinion by running
through water under the stockpile bins which was deep
enough to reach the brake drums.
record establishes that this truck was being
in a fairly congested area with brakes that were
useless for all practical purposes.
Therefore,
I find that the violation was a "significant and substantial" one. Mathies,
Furthermore, the lack
adequate
is the
violation that should have

1258

been easily discoverabie by the truck driver and apparently
was noticed by some employees because their talking about
it called the inspector's attention to the matter. Therefore, I find that the operator is chargeable with at least
moderate negligence because, at a minimum, it is chargeable
with negligent training and supervision for the failure of
its employees to correct this condition.
I also note that
the violation was abated by simply drying out the brakes.
No other repair was required. Before leaving this subject,
I specifically reject the operator's argument that the emergency brake or parking brake being in an operable condition
is sufficient to satisfy the regulatory requirement that
"[p]owered mobile equipment shall be provided with adequate
brakes."
Citation No. 2247379 alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 57.9053
and charges as follows:
Water was allowed to accumulate which created
a hazard to moving equipment.
The cited standard requires that water which creates a
hazard to moving equipment be removed.
According to the undisputed testimony of Inspector
Ruffner, who likewise issued this citation on March 5,
1985, after he had issued Citation No. 2247378 concerning
the truck with no brakes, the operator continued to load
the other haul truck in the water which existed in the
stockpile bin area.
The danger according to the inspector
being that the brakes would get wet and suffer the same
consequences as they had on the No. 2 haul truck, which had
been written up two hours earlier. Under the circumstances,
as before, if a vehic
was operating in a congested area
with no brakes, an accident was reasonably likely to occur
resulting in disabling or even fatal injuries. Accordingly,
I find the violation to be "significant and substantial."
Mathies, supra.
On the issue of negligence, the water had been in
the area under the stockpile bins that morning because of
a drain being stopped up.
Respondent produced testimony
that this was the first time this drain had ever backed
up.
In order to abate the citation, they pumped the water
out and then opened the drain.
I concur with the inspector
that the operator is certainly chargeable with the knowledge
that the water was there at the time it existed, and of the
consequences of operating the haul trucks in the water.
I
therefore find the operator chargeable with a "high" degree of negligence, as alleged in the citation.

1259

In determining the amount of penalties I am assessing in
this case, I have given great weight to the
that Walker
is a small operator, has a relatively minor history of reported violations and abated the violative conditions in a
timely manner. Accordingly, the following civil penalties
are deemed appropriate:
Citation

Amount

2247898
2247378
2247379

$100
$250
$250
ORDER

The M. A. Walker Company, Inc., IS HEREBY ORDERED to pay
civil penalties of $600 within 30 days of the
of this
decision.
Payment is to be made to MSHA, and upon recei~t of
same, this proceeding is DISMISSED.

Law Judge

stribution:
Mary Sue Ray, Esq., Office of the Solicitor, u. S. Department
of Labor, 801 Broadway, Rm. 280, Nashville, TN 37203 (
Mail)
Lyle A. Walker, President, M. A. Walker Company, Inc., P.
Box 143, McKee, KY 40447 (Certified Mail}

yh

1260

o.

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

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

AUG 28 1986

CIVIL PENALTY PROCEEDING
Docket No. SE 86-28-M
A.C. No. 31-00052-05501 J2K

v.

Pomona Mine & Mill

YATES CONSTRUCTION CO.,
INC. I
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

On August 22, 1986, the parties filed a Joint Motion to
Approve Settlement and to Dismiss this proceeding. A similar
motion was filed in the case of Secretary v. Martin Marietta
Aggregates, Docket No. SE 86-31-M, with which this proceeding
was consolidated by order issued April 18, 1986.
This proceeding involves three alleged violations, one
originally assessed at $2000 and charging a violation of
30 C.F.R. § 56.3005, the others each assessed at $98. By
this settlement agreement, the parties propose to amend citation
2385988 charging a violation of § 56.3005 to read as follows:
Respondent's employee operating at a mine
site on or about April 15, 1985 wrongfully
worked between equipment and the pit wall
in violation of 30 C.F.R. § 56.3012.
The parties represent, and I accept the representation, that
the amended citation alleges a violation of the standard
more directly applicable to the circumstances of this case.
The settlement agreement proposes that Respondent pay the sum
of $1000 for the violation charged in the amended citation,
and the assessed amount, $98 for each of the other alleged
violations.
The vi9lation charged in citation 2385988 is serious,
since it caused or contributed to a fatal accident. Respondent
states that the violation resulted from an employee violating
a previously communicated work rule, and the Secretary does
not contest this assertion. Respondent has no prior history
of inspection under the Act.
It is a small operator.

1261

/

I have considered the Motion in the light of the criteria
in section llO(i) of the Act, and conclude that it should
be approved.
Accordingly, IT IS ORDERED that the settlement agreement
is APPROVED.
Respondent is ORDERED to pay the sum of $1,196
within 30 days of the date of this decision. Upon payment,
this proceeding is DISMISSED.
The hearing scheduled
August 27, 1986 in Greensboro, North Carolina is CANCELLED.

4/Jw~~
~A.
Broderick
t/i~~~i~trative Law Judge
Distribution:
Kenneth R. Keller, Esq., Tuggle, Duggins, Meschan & Elrod, P.A.,
Drawer X, Greensboro, NC 27402 (Certified Mail)
Ira Michael Shepard, Esq., Schmeltzer, Aptaker & Sheppard,
1800 Massachusetts Ave., N.W., Washington, D.C. 20036-1879
{Certified Mail)
Larry A. Auerbach, Esq., U.S. Department of Labor, Office of
the Solicitor, 1371 Peachtree St., N.E., Rm. 339, Atlanta, GA
30367 {Certified Mail)
slk

1262

\\

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

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

AUG 28 1986
CIVIL PENALTY PROCEEDING

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

Docket No. SE 86-31-M
A.C. No. 31-00052-05504
Pomona Quarry

v.
MARTIN MARIETTA AGGREGATES,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

On August 18, 1986, the parties filed a Joint Motion to
Approve Settlement and to Dismiss this proceeding. A similar
Motion was filed in the case of Secretary v. Yates Construction
Co., Inc., Docket No. SE 86-28-M, with which this proceeding
was consolidated by order issued April 18, 1986.
The proceeding against Martin Marietta involves two
violations alleged in two citations for which penalties in
the amount of $4,157 were sought. By the settlement agreement,
the Secretary proposes to "withdraw" the two citations and
substitute therefor a new citation charging a violation of
30 C.F.R. § 56.3012 which shall read as follows:
An employee (Daniel Preston Moore) of
Yates Construction Company operating
at Respondent's mine site on or about
April 15, 1985 wrongfully worked between
equipment and the pit wall in violation
of 30 C.F.R. § 56.3012.
The Secretary represents, and I accept the representation,
that the new citation alleges a violation of the standard
more directly applicable to the circumstances of this case.
A penalty of $2000 is proposed for the violation which Respondent
agrees to pay.
The vi0lation is serious in that it caused or contributed
to a fatal accident.
Respondent states that it made regular
inspections to ensure the safety of the area involved in the

1263

citation, and the Secretary does not contest this assertion.
Respondent had no history of prior violations from November
1982 through August 1985.
I have considered the motion in the light of the criteria
in section llO(i) of the Act, and conclude that it should be
approved.
Accordingly, IT IS ORDERED that the settlement agreement
is APPROVED; that citations 2385993 and 2385994 are VACATED.
A new citation, 2385993 is substituted and Respondent is
ORDERED to pay within 40 days of the date of this decision,
a civil penalty i'n the amount of $2000 for the violation
alleged therein. Upon payment of said penalty this proceeding
is DISMISSED. The hearing scheduled August 27, 1986 in
Greensboro, North Carolina is CANCELLED.

f~s~::acf::f

Administrative Law Judge

Distribution:
Kenneth R. Keller, Esq., Tuggle, Duggins, Meschan & Elrod, P.A.
Drawer X, Greensboro, NC 27402 (Certified Mail)
Ira Michael Shepard, Esq., Schmeltzer, Aptaker & Sheppard, 1800
Massachusetts Ave., N.W., Washington, D.C. 20036-1879 (Certified
1)
A. Auerbach, Esq., U.S. Department of Labor, Office of the
Sol itor, 1371 Peachtree St., N.E., Rm. 339, Atlanta, GA
30367 (Certified Mail)
slk

1264