JUNE INDEX
Commission Decisions
6-02-83 Glen Munsey v . Smitty Baker Coal Co . Inc.
NORT 71-96
Pg . 991
6-08-83 MSHA ex rel. Kenneth E. Bush v. Union Carbide WEST 81-115-DM Pg. 993
6-13-83 MSHA ex rel. Clarence Ball v. B&B Mining Co.
VA 80-128-D Pg. 1007
6-13-83 Monterey Coal Co.
LAKE 80-413-R Pg. 1010
Administrative Law Judge Decisions
6- 01-83
6-03-83
6- 03-83
6-08-83
6-09-83
6-09- 83
6-09-83
6-10-83
6-15-83
6-16-83

Valley Camp of Utah, Inc.
Carpentertown Coal & Coke Co .
Co-op Mining Co.
Jeffrey E. Hastings v. Cotter corp.
El Paso Rock Quarries, Inc .
Zeus Corp./Amistad Fuel Corp .
Tammsco, Inc.
C & 0 Materials Corp .
Westmoreland Coal Co.
Pittsburg & Midway Coal Mining Operation
6~20-83
Richard C. Johnston v. Olga Coal Co.
6-22-83 Kentland-Elkhorn Coal Corp.
6-24-83 Republic Steel Corp.
6-28-83 UNC Mining & Milling
6-28-83 Local 6025, UMWA v.· Bishop Coal Co .
6-30-83 Southwestern Illinois Coal Corp .
6-30-83 Old Ben Coal Co.
6-30-83 Mohave Concrete & Material Co.
6-30-83 Bradley Abner v. Anamax Mining Co.

WEST 82-118
PENN 82-312

WEST. 81-268
WEST1 82-198-PM
CENT 79-160-M
CENT 81-248
LAKE 81-190-M
CENT 81-101-M
WEVA 83-140-R
WEST 82-131-R
WEVA 82-236-D
PIKE 78-399
PENN 81-139
CENT 80-386-M
WEVA 80-429-D
LAKE 82-38
LAKE 82-85
WEST 80-90-M
WEST 83-54-DM

Pg. 1032
Pg. 1034
Pg. 1041
Pg. 1047
Pg . 1056
Pg. 1061
Pg. 1063
Pg.· 1141
Pg. 1144
Pg. 1146
Pg. 1151
Pg. ll57
Pg. 1158
Pg. 1164
Pg. 1I'83
Pg . 1184
Pg . 1188
Pg. ll95
Pg . 1203

Connnission Decisions

)

JUNE
The following case was Directed for Review during the month of June:
Secretary of Labor, MSHA v~ United States Steel Mining Company, Docket
No. PENN 82-328 (Judge Broderick, May 17, 1983)
No reviews were filed in which a Denial was issued.

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

June 2, 1983
GLEN MUNSEY

v.
Docket No. NORT 71-96
SMITTY BAKER COAL COMPANY, INC.,
P&P COAL COMPANY, AND
RALPH BAKER

IBMA 72-21

ORDER
On }larch 11, 1983, the U.S. Court of Appeals for the D.C. Circuit issued
its decision in Munsey v. FMSHRC et al., 701 F.2d 976 (D.C. Cir. 1983), reh'g
and reh'g ~bane denied May 6, 1983. The Court "with one exception" affirmed
the decisions of the Commission and the administrative law judge. The exception referred to concerns the judge's conclusion that costs and attorney fees
could not be awarded for the period during which Munsey's counsel was employed
as an attorney on the staff of the United Mine Workers of America. As to this
issue the Court reversed and remanded for a determin?tion "of the amount to be
awarded in accordance with the standard set forth in Nat'! Treasury Employees
Union v. U.S. Dep't of the Treasury," 656 F.2d 848 (D.C. Cir. 1981). 701 F.2d
at 977. The certified copy of the Court's opinion and judgment was issued on
May 16, 1983.
Accordingly, the ca;se is remanded to the chief administrative law judge
for appropriate assignment and further proceedings consistent with the Court's
decision.

Commissioner

991
83-6-6

Distribution
J. Edward Ingram, Esq.
Robertson, Williams, Ingram,
Faulkner & Overbey
Tenth Floor, Andrew Johnson Plaza
Knoxville, Tennessee 37902
for Smitty Baker Coal Co., Inc.
Steven B. Jacobson, Esq.
Decastro, West & Chodorow, Inc.
10960 Wilshire Boulevard
Los Angeles, California 90024
for Glen Munsey
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., 6th Floor
Washington, D.C. 20006

992

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

June 8, 1983

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ex rel. Kenneth E. Bush
v.

Docket No. WEST 81-115-DM

UNION CARBIDE CORPORATION
DECISION
This discrimination case arises under section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq. (1976 &
Supp. V 1981), and involves a miner's discharge for refusing to work
under allegedly unsafe conditions. The administrative law judge concluded that the miner's work refusal was not protected, and that his
discharge did not violate the Mine Act. 1/ For the reasons that follow,
we affirm the judge in result.
-

I.
The miner, Kenneth Bush, was employed at Union Carbide Corporation's Rifle Plant from 1965 until his discharge on July 25, 1980,
except for a year's layoff in 1972. From 1977 or 1978 until his discharge, he was a member of the union safety committee. The Rifle Plant
is a facility for preparing vanadium. 2/ Vanadium, originally contained
in ore mined and purchased by Union Carbide, arrives at the Rifle Plant
in a concentrated liquid solution after intermediate preparation at
another Union Carbide facility. At Rifle, further preparation is
required to produce vanadium. compounds sold by Union Carbide for use in
the chemical and steel industries.
The operations at Rifle Plant require large quantities o{ sulfuric
acid, which is shipped to the plant in railroad tank cars. Originally
this acid was unloaded from the tank cars into storage tanks when it
reached the plant. On July 21, 1980, Union Carbide changed the procedure, so that acid was unloaded from the tank cars into trucks. Under
the new procedure, compressed air was piped into a tank car and the acid
was forced through a pipeline running from the tank car to a manhole on
the top of a truck.
1/
The judge's decision is reported at 4 FMSHRC 365 (February
l982)(ALJ).
2/
Vanadium is a "gray or white, malleable, ductile, polyvalent
metallic element ••• resistant to air, sea water, alkalies and reducing
acids except hydroflouric acid." Bureau of Mines, U.S. Department of
Interior, A Dictionary of Mining, Mineral and Related Terms 1195
(1968).

993

83-6-8

On July 9, 1980, Gerald Speaker, the master mechanic and one of
Bush's supervisors, demonstrated the new acid unloading procedure to
Bush and other miners, and asked if they had any suggestions for
changes. Bush and others complained about the safety of the new procedure because of possible acid leaks caused by acid build-up in the
pipeline, and requested valves to bleed the line and prevent such
build-up. (None of Bush's co-workers appears to have made safety complaints to management after July 9.) On July 22, when Speaker and Bill
Snyder, the maintenance foreman who also supervised Bush, assigned him
to "break in," or learn, the acid unloading procedure, Bush refused,
stating that it was qnsafe and it was not his job. 3/ Union Carbide
permitted Bush merely to watch the procedure. Snyder testified that the
acid leak and blow back problems were corrected that same day.
On the morning of July 2.3, another miner, Jim Hardin, received
minor burns while unloading acid. Bush was not there when the accident
occurred but subsequently learned of it. Also that morning, when
Speaker asked Bush the exact nature of his safety complaints about the
new acid unloading procedure, Bush merely repeated his earlier comment:
"It never has been safe and it isn't safe now and it never will be safe,
and besides it is not my job." Tr. II 112. That afternoon, Snyder and
Bush met at Snyder's request, and discussed Bush's safety complaints and
Union Carbide's corrective measures item-by-item. 4/ In particular, Snyder
told Bush that the July 22 changes in the procedure had eliminated acid ·
leaks and blow backs. Snyder described the conclusion of their meeting:
"I asked Ken after all these things had already been taken care of, and we
went through them all, I said now, would you please unload acid." Tr.
II 76. Bush refused a third time, stating it was "unsafe now and down
the road," and that it was not his job; he did not tell Snyder why he
thought the procedure still was unsafe. Tr. I 94; Tr. II 76.

3/
At the hearing Bush testified that his major safety concerns on
July 22 were acid leaks, and "blow backs" occurring when acid feeding
into a truck mixed with compressed air and the air pressure caused acid
to spray out of the manhole in a mist about 6-8 feet in area. Snyder
and Speaker testified, however, that although Bush told them the
procedures were unsafe, he did not specify his complaints that day.
!±./ Although the judge at one point erroneously refers to this meeting
as having occurred on July 24 (4 FMSHRC at 371), the record is clear
that it occurred on July 23. The judge's error is probably typographical for he recognized in his Findings of Fact (Finding 12, 4
FMSHRC at 367) that the meeting occurred on July 23. The Secretary
asserts that the judge's description of what took place at the meeting
bears no relationship to what actually transpired. To the contrary, the
judge's description of the meeting is fully supported by the record.

At about 7:00 a.m. on July 24 -- in response to Plant Manager
Harold Piper '.s request the previous day that he interrupt his inspections elsewhere and come to Rifle as soon as possible -- Charles
Myers, Union Carbide's Safety Coordinator, began an inspection of the
acid unloading procedure. 5/ Myers carried out a 2-3 hour inspection
and subsequent.ly discussed-with Snyder, Speaker and Piper the procedure,
the complaints, and the corrective measures taken by management. Myers
concluded there was nothing unsafe about the procedure, but rather that
it was "very adequate," and a "very complete procedure." Tr. II 3-8, 30-31.
The events precipitating the discharge occurred on the afternoon of
July 24 in the presence of numerous management personnel and miners.
When Speaker instructed Bush to continue breaking in on the acid unloading procedure, Bush again refused. Speaker asked Bush if he was
refusing to do his assigned work, to which Bush once more replied that
he was refusing because the procedure would "always be unsafe" and it
was not his job. Tr. I 98-99; Tr. II 10-11 34, 78. Piper repeated the
question, and Bush replied, "[T]hey aren't my duties. They are unsafe
besides." Tr. I 99, 147-149; Tr. II 11, 34, 78. Piper testified that
when Bush "started to go through the reasons" why the procedure was
unsafe, he cut Bush off, saying, "Ken, we have repeatedly tried to
discuss this with you, with no rational discussion, we are not going to
go through it now." Tr. I 150; Tr. II 34.
Piper then suspended Bush for refusing to do his assigned work.
Bush, angry over the suspension, responded in part, "You mousey little
b------, I ought to break your f------ nose." Tr. I 99-100, 148-151;
Tr II 11, 34-35, 78-79. Bush was very agitated and advanced to within
6 to 8 inches of Piper, clenching and unclenching his fists, but no
blows were exchanged. After a few more angry words, Bush walked away.
The next day Piper sent Bush a certified letter, which stated that Bush
was terminated effective immediately "for the totality of your conduct
on Thursday, July 24, 1980, including insubordination, refusal to carry
out work assignments, and for making threatening and derogatory remarks
and gestures toward me."

5/
While the operator did not expressly inform Bush of Myers' inspection, Bush knew that Myers was at the plant, because he testified
that he saw Myers in the unloading area that morning. Bush testified
that he was in the unloading area at the time to "see what changes had
been made." He stated that he also saw "a man on the valve right under
the truck," and "observed valves in the position where the -truck
overflowed, if it overflowed like before, [the ~iner] was immediately
under it •••• " However, Bush did not complain at that time, either
to Myers to to other management personnel. Tr. I 142-145.

995

The Secretary of Labor filed a discrimination complaint on Bush's
behalf alleging that Union Carbide "unlawfully discriminated against and
discharged [Bush] for engaging in activity protected under section
105(c) of the Act." In its answer, Union Carbide denied that it had
violated the Mine Act, asserting that Bush was discharged "for good and
sufficient cause, to wit, insubordination, refusal to carry out work
assignment and making threatening and derogatory remarks and gestures
toward the Plant Superintendent." The judge concluded that Bush's
discharge did not violate the Mine Act.
In essence, the judge held that at the time of Bush's July 24 work
refusal and subsequent outburst, he did not have a reasonable belief
that unloading acid was.hazardous. The evidence led the judge to conclude that Bush would not unload acid under any circumstances. 4 FMSHRC
at 371. The judge based this conclusion on his findings that by the
time of Bush's final work refusal Union Carbide had "rectified" the acid
leaks and blow backs of which he had complained; that at the July 23
meeting, Union Carbide had discussed each of Bush's complaints and the
corrective action taken and Bush failed to identify any further safety
problems at the meeting's close; and that his July 24 work refusal
immediately folowed this meeting and was accompanied by his unvarying
and unenlightening refrain that acid unloading would "never" be safe and
was not his job anyway. 4 FMSHRC at 370-71.
While the judge recognized the hazards of acid unloading, he held
that "when all precautions have been taken, it does not mean that an
employee may ••• refuse to do the work under the protection of the Act."
4 FMSHRC at 371. Because he found that a work refusal under those
circumstances "cannot be considered reasonable," he concluded that
Bush's refusal on July 24 was unprotected. The judge found that Bush
was discharged in part because of his July 24 work refusal and in remaining part because of his other unprotected conduct on that date. 4
FMSHRC at 368, 370-71. The judge dismissed the discrimination complaint
on the grounds that firing Bush for his unprotected July 24 work refusal
and for other unprotected activity could not amount to a violation of
the Mine Act. §_/
6/
Certain aspects of the judge's legal analysis require clarification, although they do not affect the correctness of his dismissal of
the discrimination complaint. In addition to finding that Bush's July
24 work refusal was unprotected, the judge also found that Bush's
earlier safety complaints were protected, that he made a protected
safety complaint at the time of his July 24 work refusal, that Union
Carbide discharged Bush in part for the latter complaint, and that it
would not have fired him in any event for his unprotected activity
alone. 4 FMSHRC at 370. _
At first glance, these findings would suggest a conclusion of
discrimination. However, Union Carbide expressly discharged Bush solely
for the events of July 24 (the Secretary does not argue otherwise), so
that Bush's safety complaints prior to that date, protected or not, are
not directly relevant. Further, Bush's statement on July 24 that the
job was unsafe was not a separate complaint, but instead was merely the
(footnote 6 continued)

996

II.

In order to establish a prima facie case of discrimination, a
complaining miner must prove that he engaged in protected activity and
that the adverse action was motivated in any part by the protected
activity.
Secretary ex rel. Pasula v. Consolidation Coal Company, 2
FMSHRC 2786, 2799-2800 (October 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981);
Secretary ex rel. Thomas Robinette v. United Castle Coal Co., 3 FMSHRC
803, 817-18 (April 1981). It is undisputed that Union Carbide fired
Bush for the "totality of (his] conduct" on July 24, including his work
refusal, insubordination, and threatening and derogatory remarks and
gestures. Bush's insubordination and opprobrious conduct are not protected by the Mine Act. 7/ Consequently, the narrow question before us
in this case is whether Bush's work refusal was protected. If it was
not, then firing him for it does not give rise to a violation of the
Mine Act.
For a work refusal to come within the protection of the Mine Act, the
miner must have a good faith, reasonable belief that the work he refuses
to do is hazardous. The complaining miner has the burden of proving both
the good faith and the reasonableness of his belief that a hazard existed;
the burden of showing good faith does not, of course, amount to a burden
of demonstrating the absence of bad faith. Robinette, 3 FMSHRC at
807-12. §_/ In determining if the miner's belief is a reasonable one
footnote 6 continued
expression of his final work refusal. The expression of this work refusal
cannot be divorced from the refusal itself. If the work refusal lacked the
protection of the Mine Act, so did the words communicating it. We disavow
any suggestion to the contrary in the judge's reasoning. In sum, the judge's
decision must be read in light of his ultimate conclusion. We are satisfied
that, with the clarifications discussed in this note, he properly based his
dismissal of the complaint on his conclusion that Bush's July 24 work refusal
was not protected. Similarly', we interpret the judge's discussion of the
operator's motivation in firing Bush as meaning merely that Bush was fired in
part for his work refusal and in part for his other unprotected conduct on
July 24.
.
7/
Bush's angry words and threats occurred after he refused to work and are
separate from that refusal. Therefore, this is not a case requiring us to
decide whether objectionable conduct occurring directly in the course of the
alleged protected activity operates to strip that activity of its claim to
protection. See Robinette, 3 FMSHRC at 817. See generally Crown Central
Petroleum Corp. v. NLRB, 430 F.2d 724, 729-31 (5th Cir. 1970), and authorities
cited.
§_/
To the extent that note 14 in Robinette (3 FMSHRC at 811) may suggest
that the burden of proof on any issue shifts to the operator, it has been
misread. The burden of proof remains with the complainant at all times on
all issues of his or her case, including good faith and reasonableness. As
Robinette correctly holds, "the 'ultimate' burden of persuasion never shifts
from the complainant." 3 FMSHRC at 818 n. 20.

99'7

under the circumstances, the judge looks to the miner's account of the
conditions precipitating the work refusal, and to the operator's response.
The judge then evaluates the relevant testimony as to "detail, inherent
logic, and overall credibility." Robinette, 3 FMSHRC at 812.
As indicated above, the judge's conclusion that Bush's July 24 work
refusal was unreasonable is based on his findings that Union Carbide had
corrected the hazardous conditions about which Bush had previously
complained, and had so informed Bush on July 23. After being informed,
Bush failed to articulate any further safety problems. When he continued to refuse to unload the acid on July 24, he merely invoked his
ritualistic litany that acid unloading would never be safe, and besides
was not his job. We are persuaded that substantial evidence supports
the judge's findings and conclusions.
The record establishes Union Carbide's continuing concern about
miners' complaints and its willingness to address them. As requested by
Bush and other miners on July 9 and by Bush on July 22, Union Carbide
corrected the acid leaks and blow backs. In addition, the operator
initiated the July 23 meeting with Bush, where Snyder informed Bush of
these corrections and tried without success to discover Bush's remaining
safety complaints. Union Carbide's good faith and desire to cooperate
were further demonstrated by Piper's July 23 request that Myers inspect
the unloading procedure as soon as possible. Where, as here, the
necessary communication between the miner and operator has occurred and
management has taken corrective measures at some point repetition of
the same complaint and work refusal loses the protection of the Mine Act.
In this context, the evidence does not support the reasonableness
of Bush's continuing belief in a hazard. Indeed, the judge virtually
discredited Bush's testimony. It is significant that after July 9, no
one aside from Bush seems to have complained to management regarding the
acid unloading procedures. At no time did Bush file a grievance under
the union contract or raise his concerns with the union safety committee
of which he was a member. Moreover, at the July 23 meeting, Bush was
unresponsive to Union Carbide's repeated attempts to discover why he was
still concerned ab~ut the unloading procedure. On July 24, after both
Speaker and Piper asked Bush if he were refusing to do his assigned work,
he merely repeated tha~ the procedure was unsafe, would never be safe, and
was not his job. While it is true that Piper interrupted Bush at that point,
we do not believe the interruption was legally significa~t. The record fails
to show that Bush would have said anything more illuminating than he had
said four times already. Rather, the record reveals that Bush's testimony
overall as to what he told his supervisors with regard to his safety
concerns was vague, unspecific, and subject to memory lapses. J_/

J_/

Even testimony that at first glance seems to support Bush's position,
fails to do so on closer examination. Thus, although Bush knew on July 23
that Hardin was burned, there is no testimony that Bush thought the burn was
caused by a safety defect. The judge made no findings on the cause of the
burn and Bush did not testify as to what he believed. Similarly, as discussed in footnote 5, although on the morning of July 24 Bush observed the
unloading procedure he did not then complain of any hazards. His testimony
as to what he observed that morning is ambiguous as to whether he believed
a hazard actually existed at that time. Further, the judge found that Union
Carbide had corrected the acid leaks.

998

In sum, the judge inferred from the evidence that Bush would not
unload acid under any circumstances. In so doing, the judge credited
the operator's testimony that it had remedied the acid leaks and had
conveyed this information to Bush, and discredited Bush's testimony
pertaining to reasonable belief in a hazard. We emphasize that a
"judge's credibility findings and resolution of disputed testimony
should not be overturned lightly." Robinette, 3 FMSHRC at 813. Here,
in the presence of substantial evidence to support his findings, we see
no reason to take the exceptional step of overturning this basis for the
judge's decision. We are persuaded, as was the judge, that Bush's
belief in the hazard was not "a reasonable one under the circumstances,"
in that Bush's account of the conditions responded to was not persuasive
in "detail, inherent logic and overall credibility." Robinette, 3
FMSHRC at 812. We reach this result also because acid unloading is a
necessary and integral part of Union Carbide's operations and, like
working on high steel or, indeed, in a mine, always poses some element
of risk. Bush's work refusal was therefore unprotected and the operator's
firing him in part for that refusal did not amount to a violation of the
Mine Act. 10/ Like the judge, we will not penalize Union Carbide for
refusing tO-tolerate indefinitely Bush's unchanging refrain and work
refusals.
III.

One last point remains to be discussed. Union Carbide asserted at
oral argument--as it had before the judge--that the Rifle Plant is not a
"mine" within the meaning of the Mine Act. We disagree. Substantial
evidence supports the judge's findings that vanadium is a mineral and
that facilities at the plant are used in the work of "preparing"
vanadium. 4 FMSHRC at 369.
The Mine Act specifically includes within its coverage "lands •••
structures, facilities, equipment ••• used in ••• the work of preparing
••• minerals. 30 U.S.C. § 802(h)(l). It is clear Congress intended
this expansive definition of "mine" to be broadly construed. 11/ While
we have recognized that the "inclusive nature of the Act's coverage •••
is not without bounds" (Carolina Stalite Co., 4 FMSHRC 423, 424 (March
1982), appeal filed sub nom. Donovan v. Carolina Stalite, Nos. 82-1467,
82-1830, D.C. Cir.), the situation here is readily distinguishable from
cases where we declined to apply the Mine Act. See Stalite, 4 FMSHRC at
424-425; and Elam, 4 FMSHRC at 5, n. 3. Rifle is an integral part of
Union Carbide'S"""Corporate structure, and some of the vanadium-bearing

10/ Because we have determined that Bush's work refusal was not based on
a reasonable belief that a hazard existed, we need not reach the question
of his good faith.
l!.I Oliver Elam Co., 4 FMSHRC 5, 6 (January 1982), citing S. Rep. No.
181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate Subcommittee
on Labor and Human Resources, 95th Cong., 2d Sess., Legislative History
of the Federal Mine Safety and Health Act of 1977, at 602 (1978).

999

ore prepared at Rifle is mined by Union Carbide. Moreover, the distillation of t~e vanadium concentrate at the plant is a necessary preliminary step to commercial use. Such mineral preparation falls within
the scope of the Mine Act. lJ:..!
Accordingly, on the bases discussed·above, we affirm the judge's
dismissal of Bush's complaint of discrimination.

~66;.~~~

12/ We also believe it is desirable as a matter of policy that a single
federal agency inspect all of Union Carbide's facilities engaged in
related operations, that is, its mines and its primary and secondary
preparation facilities. 30 U.S.C. § 802(h)(l). As pointed out at oral
argument by counsel for the Secretary, without rebuttal by Union
Carbide, until this proceeding Union Carbide had not disputed the Mine
Safety and Health Administration's jurisdiction, and had permitted
inspection without protest for a number of years.

1000

Commissioner Lawson dissenting;

/

/

/

I am in agreement with the majority that this is a mine, but the recoi'd
does not support its conclusion that the complainant, a miner with fifte~rt
years employment at Union Carbide, and at the time of his termination a/
safety committee representative for his union, was discharged for unprotected
activity. It is undisputed that miner Bush had never been disciplined before,
for any reason. Tr. I 78.
The proposition that substantial evidence furnishes strong support for
the decision of a trial court is not in dispute. What is at issue are the
numerous evidentiary gaps, misinterpretations, and inconsistencies in the
decision of the judge below, which presents to the Commission a decision
unsupported by the record in this case. Substantial evidence is either
wholly absent from this record--indeed any evidence in a most critical
area--or so misstated as to be of little or no value for purposes of review.
For example, although the judge found complainant had engaged in protected
activity (4 FMSHRC 370), and the op.erator has not challenged this finding on
review, the majority here has determined that Bush's activity was not protected
(slip op. at 4, 5, and n. 6), thus ignoring the presumably substantial evidence
on which the judge relied in reaching that conclusion.
As the majority ~oncedes, the judge erred in recounting and relying upon
a nonexistent conversation of July 24th, in the clearly determinative underpinning for his decision:
The complainant did engage in protected activity in
that he complained that the new procedure for unloading
acid was unsafe. The complaint was made to complainant's
supervisor on several occasions, and including July 24,
1980, the day complainant was suspended. A safety complant involving a condition adjudged by the miner to be
unsafe constitutes conduct protected by the Act.

After the solution of all the complaints had been
explained to complainant in his supervisor's office on
July 24, 1980, complainant was again asked to break in
on the work of unloading the acid. Complainant ag~in
refused, stating that it was unsafe, but when he was
asked in what way it was unsafe, complainant offered no
explanation. Complainant also stated, as he had before
that 'besides, its not my job.' The only conclusion I
can come to is that complainant would not unload acid
under any circumstances. [Emphasis added]. 4 FMSHRC 370,
371.

1001

Indeed, the July 24th refusal to discuss complainant's safety concerns
is revealed by the record as that of Union Carbide's Superintendent, Harold
Piper, not miner Bush. It is undisputed that Bush attempted to explain the
reasons for his belief that the acid handling procedure was unsafe. However,
as Piper stated Bush "started to go through the reasons", but "I cut off his
discussion." Tr. II 34-36, Tr. I 150. ])
I am therefore unwilling to confirm these undisputed decisional contradictions of the judge, by speculating as to what he might have intended to
say--but didn't--in particular on the central point critical to the resolution
of this dispute. The timing and the content of the verbal exchanges between
the parties should not be determined by inference, when Kenneth Bush's job,
his fifteen years of employment and service for this operator, depends upon
the accuracy of the facts upon which we must base our decision.
It is undisputed that Bush had some years previously witnessed employee
Victor Sullivan "severely burned by acid" (Tr. I 90); had himself received
acid burns (Tr. I 103); had le~rned of Hardin's acid burns while working on
the acid line on July 23rd and had observed; on the day of his discharge,
that valves were still dangerously positioned and likely to cause overflow.
Tr. I 144. Yet, in examining Bush's belief to find it unreasonable, neither
the judge below nor the majority herein has made any determination nor
addressed the issue of whether the complainant's refusal to work was made
in good faith.. It is established law that the operator has the burden of
proving the absence of good faith. Sec. ex rel. Robinette v. United Castle
Coal Co., 3 FHSHRC 803, 810-12 & n. 14 (April 1981). J:._/

1/ Nor is there any record support for or explanation by the majority of its
assertion that this miner's July 24 statement that the job was unsafe was
not a separate complaint, nor that.Bush's safety complaints prior to July 24
are "not. •• relevant." Slip op. at 4, n. 6. Certainly the judge found the
complaint to be separate (4 FMSHRC 367), and the majority found Bush's angry
outburst, which occurred in that same discussion, to be separate. Slip op.
at 5, n. 7.
2/ Contrary to the majority's assertion, n. 14 of Robinette has not been
11
misread":
We are not suggesting that in work refusal litigation the
Secretary or miner must demonstrate an absence of bad faith.
Ordinarily, the miner's own testimony will expose the credibility
of his good faith. Operators may use cross-examination or introduction of other evidence to show that, in reality, good faith
was lacking. Thus, in a practical sense, the real evidentiary
burden occasioned by the rule will be on operators to prove the
absence of good faith. Emphasis supplied.
Robinette at 811 n. 14.

1002

The essential holding below, adopted by the majority herein, is that
Bush's work refusal was not based on a "reasonable belief", and is therefore
unprotected. Slip op. at 7. That conclusion is founded on, and can only
be supported by, as has been noted, the judge's mistaken reliance on a
nonexistent conversation. 1./ The basis for the holding below being thus
iacking, the decision cannot stand. Bell Lines, Inc. v. United States
(1967, SD W Va) 263 F.Supp 40, 46; 5 U.S.C.A. § 557 (c).
Certainly complainant on July 22nd had testified in detail as
to his safety concerns (Tr. I 43-45). Union Carbide apparently gave
these complaints credence, although the record is unrevealing as to
whether or not the changes made in the sulfuric acid handling procedure
between the July 22nd complaint of Bush and his discharge on July 24th
represented improvements. A valve in the acid line had been replaced,
but it is significant that miner Bush was not advised of this change in
the acid handling procedure, nor permitted to express himself as to the
safety implications thereof.
On July 23rd, miner Hardin had been burned while unloading this sulfuric
acid. Thereafter, on July 24th, Union Carbide's Safety Coordinator, Myers,
had inspected this procedure, and the method of handling this acid was then
modified. Complainant was not informed of nor aware of this modification,
nor at the time of his work refusal on the 24th, of the reason for the injury
to Hardin. Tr. II 52. Indeed, the record reflects that on the morning
of the 24th, Bush observed valves in a position to cause overflowing, as
before. Tr. I 143-145.
In any event, whatever opportunity Bush might have had to express his
concern as to these procedures was foreclosed, as well as any views he may
have had concerning whether the later changes ordered by Myers had corrected
the problems of safety involving the acid handling procedure. The majority
would, however, confirm complainant's discharge because of Union Carbide's
"good faith and desire to cooperate", albeit this operator had withheld
critical information from Bush, a safety representative of his fellow
miners. Slip op. at 6.
Even more disturbing, and perhaps most pernicious of all, is the majority's
clear approvai of this operator's refusal to listen, much less respond, to
complainant's reasons for his refusal to work. I cannot agree to the promulgation of a rule that condones an operator's refusal to hear an employee's
safety complaint, ~ fortiori one that approves the discharge of a miner who
has the temerity to raise such complaint. The law does not require that
a miner work under conditions perceived to be hazardous, nor to blindly
accept the mine operator's assessment of the safety of the workplace.
Patience is to be preferred over peril when the miners' health and safety
weighs. in the balance. Phillips v. Interior Board of Mine Operations Appeals,
500 F.2d 772, 780 (1974) cert. denied 420 U.S. 938.

3/ See United States v. United States Gypsum Co., 333 U. S. 364 (1948) "a
finding is 'clearly erroneous' when although there is evidence to support
it, the reyiewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed." 395.

1003

Under the majority's rationale, a hear-no-evil rule has been established,
which will henceforth provide an operator with a ready avenue for avoiding
responsibility ·for discrimination. It need only refuse to listen to safety
complaints. This certainly is not supported by the Act; indeed it is directly
·contrary to the language of section 105(c)(l) and Commission precedent, which
strongly encourages, if not requires, a miner to inform his employer of the
dangers of the mine. Northern Coal Company, 4 FMSHRC 126, 133-135 (1982).
Whether miner Bush would have unloaded acid on the 24th was not therefore
meaningfully offered as an option to Bush, given Union Carbide's refusal to
listen to the reason or reasons he then believed that the work he refused
was unsafe, the unexplained accident to Hardin, and the also unexplained
change in the acid unloading procedure, subsequent to that accident, together
with Bush's observation on the day he was discharged that valves were still
dangerously positioned and likely to cause overflow. The Act and our precedent
do not require miners to perform unsafe work, nor that which a miner has a
good faith, "reasonable belief" to perceive as unsafe.
To the extent that the majority bases its finding that Bush's belief
was not "reasonable" " •• ."because acid unloading is a necessary and integral
part of Union Carbide's operation and, like working on high steel, or indeed,
in a mine, always poses some element of risk", it decides a question not
presented to the judge below, nor raised on review to the Commission. The
Act limits Commission review "to questions raised by the petition" and provides
that the "Commission shall not raise or consider additional issues •..• "
Sections 113(d)(2)(A) & 113 (d)(2)(B). Here, the majority's finding was
neither presented to the judge below nor raised by any party on review. Pre· viously, this Commission has refused to address an argument not raised before
the judge. Cowin and Company, Inc., 1 FMSHRC 20, 22, n. 6.
In any event, the suggestion that working with acid poses an element of
risk is not at issue in this case, nor is working on high steel. What is at
issue are the procedures utilized in handling the acid, and whether these
were reasonably perceived by this miner as unsafe.
The majority has viewed this miner's belief not only narrowly, but
solely from the perspective of the operator. The belief to be tested,
however, is that of the miner. The reasonableness of this miner's belief,
on which he based his ~ark refusal, cannot be divined only from the operator's
subjective, and not disinterested, assessment thereof. Phillips v. Interior
Board of Mine Operations Appeals, supra. When viewed from Bush's perspective,
the evidence leads to an opposite conclusion, and I submit clearly supports
the reasonableness of his belief that this work was unsafe.
To recapitulate, Bush, on the morning of July 24, went to the acid
unloading site to see "(w]hat changes had been made." Tr. 1 142. A truck
was being unloaded, and it is unrefuted that he observed valves in the
position they had been in when acid had previously leaked. Tr. I 144.
Nor was Bush told that Safety Coordinator Myers had reviewed the unloading
procedures that morning at Plant Manager Piper's request, (Tr. II 52-3)
nor was he advised that the faulty connection, which caused acid to splash
in Hardin's face, had been replaced. !±./ Tr. II 6-7.
!±_/Rather, Supervisor Snyder had told him "human error" was "partly responsible."
Tr. II 72-3. Indeed, the record reflects a dispute between Union Carbide's own
witnesses as to the cause of this accident. Tr. II 6-7, 51, 52.

1001

The record reveals that there had never been any discharges of other
employees at this mine because of their safety complaints (oral arg. 53, 54),
only Bush~ Union· Carbide presented no evidence that it was company policy
to discharge for refusal to perform work because "it isn't my job" (oral
arg. 53) or insubordination; indeed, Superintendent Piper testified that
"we will not do anything in the heat of an incident other than to suspend".
Tr. II 36. The judge, of course, found that Union Carbide wou~d not have
fired this miner for the unprotected activity alone (4 FMSHRC 370), and
this finding is buttressed by the operator's letter of July 25th, in which
it noted that Bush was being discharged "for the totality of your conduct .•. ,
including the refusal to carry out work assignments." Exh. C-2. (Emphasis
added.)
In summary, we have an undisputedly woefully deficient and unsupported
judge's decision, a miner who had made protected safety complaints and had
observed still existing unsafe conditions at his workplace just prior to
his discharge, a mine operator who refuses to listen to this experienced
miner's safety complaints concerning a three-day old·, but already modified,
procedure for handling sulfuric acid--which had already caused burns to one
of complainant's fellow miners--and an employer who admittedly·suspended
this miner for his refusal to do this work which he, in good faith, reasonably
believed to be unsafe.
For the reasons stated, I therefore dissent, would find a violation of
section 105(c), and would reverse and remand for appropriate relief.

A. E. Lawson, Commissioner

1005

Distribution
Ann Rosenthal
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
John W. Whittlesey, Esq.
Marguerite A. Smith
Union Carbide Corporation
Law Department
Old Ridgebury Road
Danbury, Connecticut 06817

1006

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

June 13, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 80-128-D

on behalf of Clarence Ball
v.

B&B MINING .COMPANY, INC.,
LAUREL MOUNTAIN MINING COMPANY,
ROBERT ESSEKS, JODA BLANKENSHIP
ORDER
This case is before the Commission upon grant of a petition
for discretionary review filed by the Secretary of Labor. 30 U.S.C.
§ 823(d)(2)(A).
The issues upon which review was granted concern
the appropriate procedures for assessing penalties in discrimination
cases brought pursuant to 30 U.S~C. § 815(c), and the appropriate
rate of interest to be applied to backpay awards in such proceedings.
Subsequent to our granting of the petition for discretionary
review, the Secretary filed a motion to "withdraw his appeal" and
for "dismissal of the proceeding." The Secretary asserts that a
penalty has since been separately assessed and paid, and that the
amount of backpay and interest payable to the miner has been resolved
by an agreement reached in bankruptcy proceedings involving the
operator. Therefore, the Secretary submits that the controversies
before the Commission in this case are moot. No opposition to the
Secretary's motion was filed.
We find it unnecessary to reach the questions of whether the
issues in the proceeding before the Commission are moot or, if so,
whether dismissal would be required. See Climax Molybdenum Co. v.
Secretary of Labor & FMSHRC, No. 80-2187, 10th Cir (March 21, 1983),
slip.££.• at 7-10. Nor do we need to reach the Secretary's argument,
in response to our order to show cause, concerning the Commission's
jurisdiction over settlements in discrimination proceedings. The
questions of law and policy upon which discretionary review was
granted in this case are also pending before the Commission in other
cases. See, e.g., Arkansas-Carbona Co., Docket No. CENT 81-13-D;
Ottawa silica--c;-., LAKE 81-163-DM. In light of this fact and based

100

1
/

83-6-9

on our review of the entire record in the present case, we find that
the case before us no longer presents a "substantial question of law,
policy or discretion." 30 U.S.C. § 823(d)(2)(A)(ii)(IV). Accordingly,
our direction for review in this case is hereby vacated and the
administrative law judge's decision stands as the final order of the
Commissio~.
See 30 U.S.C. § 823(d)(l).
We wish to point out, however, that the procedure followed in the
present case exposes the parties as well as the effectiveness of their
compromise agreement to unnecessary risks. Where a matter is in litigation before any tribunal, it is eminently sensible, if not legally
mandated, to seek an order from that tribunal before a "binding"
agreement between the parties that purportedly disposes of that
litigation is effectuated. See also Matter of Gary Aircraft Corp.,
698 F.2d 775 (5th Cir. 1983), and cases cited therein.

Nelson, Commissioner

1006

Distribution
Barry f. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Robert T. Copeland
Copeland & Thurston, P.C.
212 West Valley Street
P. 0. Box 1036
Abingdon, Virginia 24210
C. Adrian White
1200 Euclid Avenue
P.O. Box 309
Bristol, Virginia 24203

1009

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

June 13, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. LAKE 80-413-R
LAKE 81-59

v.

MONTEREY COAL COMPANY
DECISION
These proceedings arise under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1976 and Supp. V 1981). The administrative law judge found that~onterey Coal Company did not violate 30 C.F.R.
§ 77.216(d). 1/ We granted the Secretary of Labor's petition for discretionary review and heard oral argument. For the reasons that follow, we
reverse the judge's decision.
On September 11, 1980, a Mine Safety and Health Administration (MSHA) };_/
inspector issued a citation to Monterey alleging a violation of 30 C.F.R.
§ 77.216(d).
The citation stated:

1_/

30 C.F.R. § 77.216 provides in part:
(a) Plans for the design, construction, and maintenance
of structures which impound water, sediment, or slurry
shall be required if such an existing or proposed impounding structure can:
(1) Impound water, sediment, or slurry to an elevation
of five feet or more above the upstream toe of the
structure and can have a storage volume of 20 acrefeet or more; or
(2) Impound water, sediment, or slurry to an elevation
of 20 feet or more above the upstream toe of the
structure; or
(3) As determined by the District Manager, present a
hazard to coal miners.

*

*

*

*

*

*

*

(d) The design, construction, and maintenance of all water,
sediment, or slurry impoundments and impounding structures
which meet the requirements of paragraph (a) of this section
shall be implemented in accordance with the plan approved by
the District Manager.
];_/
MSHA succeeded to the enforcement activities of the former Mining
Safety and Enforcement Administration (MESA). In this decision references
will be to MSHA.

1010

83-6-10

No. 3 slurry and refuse area, impoundment I.D. No. 1211 IL
07i6-04, can impound water and/or slurry to an elevation of
over 85' above the upstream [toe] of the impounding structure and the water/slurry storage volume is slightly more
than 1000 acre feet. Either one of these conditions place
the impounding structure in the large size classification.
The mine operator has not submitted hydrologic and hydraulic
engineering data to support the design of a large size
structure. The approval of the engineering plan for design,
construction, and maintenance of No. 3 slurry and refuse
area was withdrawn in notifications dated June 13 and
July 3, 1980. In a letter dated July 29, 1980 additional
time was permitted to submit the information for a large
structure. As of the date of this action no data has
been received.
The citation culminated a protracted and confusing dispute between
MSHA and Monterey concerning the impoundment. At the heart of this dispute
is the proper "size" and "design storm" classifications for the No. 3
impoundment. A design storm is the worst combination of forces and.loads
a structure is calculated to sustain without failure. The cited standard
requires implementation of "impoundment plans" approved by MSHA's District
Manager. The minimum requirements for impoundment plans are contained in
30 C.F.R. § 77.216-2. Although the standards refer to an impoundment's
"design storm," they do not specify criteria for choosing an appropriate
design storm. Accordingly, both MSHA and the industry use as a guideline
the Engineering and Design Manual: Coal Refuse Disposal Facilities,
prepared by E. D'Appolonia Consulting Engineers, Inc. (hereafter "Design
Manual" or "Manual").]_/
Table 6.6 of the Manual presents recommended minimum design storm
criteria for long term refuse disposal impoundment structures. The Table
combines a "size classification" and "hazard potential classification" of
an impoundment to reach a "recommended design storm." 4/ Three design
storms are set forth in Table 6.6: (1) probable maximu-;;;- precipitation (PMP)
that could conceivably ever occur, given maximized intensity and duration
possibilities (this is the most conservative design storm); (2) ~ PMP, and
(3) one percent probability (OPP), the storm which would occur or be
3/
The Design Manual was commissioned and published by MESA following the
Buffalo Creek impoundment failure which occurred in 1972.
4/
The hazard potential classification concerns both the level of damage
and potential loss of life in the event of the impoundment's failure. The
parties stipulated that the No. 3 impoundment is "low hazard." In addition
to size and hazard potential, additional criteria for determining design
storms include "freeboard," "spillways" and "decants." Freeboard is the
vertical distance between the water level and the crest of the dam or
impoundment. A spillway is a passage (for example: a paved channel)
designed to accomodate surplus water over or around a dam or impoundment.
A decant system is a system of pipes used to discharge clarified surface
water from all impoundments after the fine refuse has settled, and to
discharge storm runoff periodically collected in an impoundment during
large rainstorms.

1011

exceeded on an average of once every one hundred years and therefore has
an OPP of being equalled or exceeded in a given year. 2_/ Table 6.6
recommends that an intermediate irnpoundrnent of low hazard have a minimum
design storm of OPP. A large irnpoundrnent of low hazard should have a
design storm of ~ PMP.
With this background, we turn to the specific facts of the case. On
July 30, 1976, after Monterey submitted its plan for the No. 3 .irnpoundrnent,
MSHA requested "a written justification of the selection of a design storm
less than the PMP. Adequate justification could be the use of Table 6.6 ••• "
On October 6, 1976, Monterey forwarded the requested information including
its own response to MSHA's comments as well as a response by Hanson Engineers,
an independent consulting firm. 6/ On January 17, 1977, MSHA wrote to
Monterey stating that Monterey's-justification of a design storm less than
the PMP was "satisfactory". Monterey's plan was approved by MSHA on
July 6, 1977.
Subsequent to the plan's approval in 1977, the No. 3 irnpoundrnent
manifested numerous signs of stress. A clay covering on the outside
of the structure had been improperly applied, elevating the phreatic
surface (water table) and weakening the irnpoundrnent structure. In
addition, the irnpoundment had experienced two instances of serious
slippage. Boils appeared on the irnpoundrnent indicating internal
pressure was forcing water through the structure. 7/ Further, the
static safety factor computed for purposes of determining slope stability
measured less than the minimum permissible reading of 1.5. §_/
As a result of the first slippage, Monterey submitted a plan for remedial
construction prepared by Hanson Engineers. The plan included the installation of 14 piezometers to monitor the seepage of water from the irnpoundrnent
and to measure slope stability. Also as a result of the slippages, MSHA
Inspector Eslinger began making more frequent inspections of the No~ 3
impoundrnent. He made an inspection in April, 1980, at which time he collected the piezorneter readings, reviewed them and forwarded them to MSHA's
"Technical Support" Center for analysis. J..j There, a major reevaluation of
MSHA assigns either a ~ PMP or OPP design storm only after examination of the circumstances and receipt from the operator of detailed
information justifying the use of a less conservative design storm.
6/
Hanson Engineers has provided Monterey with engineering advice and
data on the irnpoundrnent since 1975.
7I
"A boil is a seep which ••• [is] water escaping the darn in a localized
area under a high exit gradient, there is a lot of pressure forcing this
water out." Mazzei deposition at 28. The record in this case includes
the depositions of five MSHA experts. Hereafter, the depositions will be
cited by the deponent's name and the page number of the deposition.
8/
30 C.F.R. § 77.216-2(a)(l3) requires inclusion in the irnpoundrnent
plan of a ;'factor of safety range for the slope stability." The safety
factor is the ratio of the resisting forces to the forces tending to
cause movement. See 30 C.F.R. § 77.217(f). MSHA Engineer Eslinger
testified that MSHA "like[s] to see at least [a] 1.5 static safety
factor." Eslinger at 17.
9/
Pittsburgh Technical Support Center, Division of Safety and Technology, Hine Waste and Geotechnical Engineering Branch.

2_/

1012

the design plan was initiated and MSHA personnel discovered that they had
overlooked a "discrepancy." 10/ "The discrepancy in this instance was
[that] an improper design storm was used. The Engineering and Design Manual,
Table 6.6, requires a ~ 'PMP design storm be used for a structure of this
size, rather than the OPP •••• "Joint Exh. 1 (MSHA letter to Monterey,
June 13, 1980). MSHA requested further data within 20 days. Monterey
responded by forwarding copies of the 1976-1977 correspondence (summarized
supra) and stating, "[W]e feel that you will agree that the use of the
OPP design storm has already been discussed., justified and approved, and
is not an item which you had 'overlooked'."
On July 3, 1980, again MSHA wrote to Monterey:
The justification cannot be accepted, and therefore,
approval of the plan is withdrawn effective immediately
Table 6.6 ••• recommends that for Slurry and
Refuse Disposal Area No. 3, a large impoundment of
low hazard, that minimum design storm acceptable is
the~ PMP ••• we must adhere to these recommendations.
Joint Exh. 3.

Monterey responded by letter to MSHA on July 21, 1980:

Based on Table 6.6, ••• this impoundment should be
classified as an intermediate size impoundment of low
hazard potential. This is because the maximum volume
of stored water during a design storm will always be
less that 1000 acre feet, and the maximum depth of water
during a design storm will always be less than 40 feet.
It is true that the total impoundment volume is slightly
more than 1000 acre feet and the total impoundment height
is greater than 40 feet; however, the large portion of
this volume and height is, and always will be, occupied
by settled fine refuse, leaving a maximum of 405 acre
feet of water storage and a maximum of 21 feet of water
depth. The inclusion of only water, and not settled
fine refuse, in the storage and depth quantities above
is supported on page 6.63 of the manual in the section
entitled Impoundment Size Classification, which makes
a very clear distinction between stored water and settled
fine refuse.
Joint Exh. 4.

10/ Apparently MSHA Technical Support advised the MSHA District 8 headquarters by memorandum dated June 6, 1980 of its finding of an error
in the design storm. See Rath at 13-14. There is also an implication
in the record that there-was communication between MSHA and Monterey
prior to the letter of June 13, 1980 revoking the plan. Childers
at 30-32.

1013

By letter dated July 29, 1980, MSHA stated that no mandatory
standard required it to use Table 6.6. In addition, MSHA noted "it
is obvious that section 77.216 ••• requires design plans not only
for water, but also for sediment and slurry impoundments that fall
within the criteria. Therefore, where a combination of both refuse
and water is trapped behind a structure, it becomes clear that the
total volume would be considered if prudent engineering and design
is conducted." MSHA gave Monterey until August 12, 1980 to subniit
the data initially requested on June 13, 1980. On August 7, 1980,
at the request of Monterey, a meeting between MSHA officials and
Monterey was held at MSHA's District Eight headquarters. The parties
unsuccessfully tried to reach an agreement. 11/ On September 3, 1980,
Monterey again wrote to MSHA stating that "Monterey and MSHA apparently
cannot reach a satisfactory accord." Monterey reiterated the facts and
concluded:
·
To Monterey, MSHA's July 29, 1980, letter is interpreted to
mean that MSHA agrees with Monterey's contention that the
design is consistent with the Engineering and Design Manual,
but that MSHA is not bound by the Manual. This MSHA position
on the Manual would certainly seem to contradict the July 13,
1980, [sic] position that the alleged discrepancy was based
on the requirements as set forth in the Manual.
Thus, Monterey considered the MSHA approval of area No. 3 "to still be
in effect." Joint Exh. 7, at 2-3.
On September 11, 1980, the citation for failure to have an approved
plan in effect was issued by MSHA. Monterey contested the citation
and the Secretary subsequently instituted a civil penalty proceeding for
the alleged violation. ll:._/
In his decision vacating the citation, the judge framed the issue
before him as "whether MSHA was justified in withdrawing its approval,
because if not, its subsequent action of issuing a citation was improper."
3 FMSHRC at 1788. The judge resolved the issue in Monterey's favor, stating
that "Table 6.6, which MSHA relies on and which it charged Monterey with
violating,_ counts only the water above the settled material in determining
the size of a pond for design storm purposes." 3 FMSHRC at 1789. Presumably
because under the literal terms of Table 6.6 the impoundment was correctly
classified as "intermediate", the judge found that withdrawal of approval
was not justified. Therefore, h~ vacated the citation.

g/

There were also a number of telephone conversations between ~fr. Tillman
of Monterey and various MSHA officials in an attempt to reach an agreement.
See Childers at 24-28 and 47-48.
12/ On September 17, 1980, Monterey submitted additional information to
MSHA "to allow Monterey to continue to operate" the No. 3 slurry area.
Joint Exh. 8. MSHA reinstated approval of the plan on September 19, 1980
after Monterey submitted the request~d data. Joint Exh. 9.

We concur with the judge's statement of the issue: whether MSHA was
justified in. withdrawing its approval of the plan, and, therefore, whether
' issuance of the citation for failure to have an approved plan in effect
was proper. We disagree with the judge's conclusion, however, and hold
that under the circumstances MSHA was justified in withdrawing the plan
approval and issuing the citation.
As noted previously, a re-evaluation of Monterey's impoundment
was conducted and MSHA discovered that the wrong design storm (the OPP)
had been approved. 13/ MSHA admits that the OPP design storm should
not have been approved and that if the same plan presently were submitted,
it would not be approved. The depositions contain two explanations for
the er.ror. During the time when Monterey initially submitted its plan,
MSHA was deluged with plan submissions because the standard ~equiring
plans for impoundments had only recently gone into effect. Mazzei at
58-59. In addition, the record reflects that Monterey's plan submissions
may have been somewhat confusing themselves in that they referred to
more than one design storm. 14/
13/ Actually, the wrong design storm had been approved twice: initially
in July 1977, and upon approval of a modified plan in August 1979.·
14/ On April 30, 1976, Monterey submitted a number of documents to MSHA.
Included was an "Engineering Report for Continued Use of Refuse, Slurry Area
No. 3." Pages 4-5 of that report describe runoff and freeboard calculations.
They use both PMP and OPP calculations. The "spillway" paragraph on page 5
of the report only refers to OPP precipitation. Later, on July 30, 1976,
MSHA requested "a written justification of a selection of a design storm
less than the PMP." On October 6, 1976, Monterey responded to MSHA's
request by forwarding both Monterey's and Hanson's responses. Inspector
Eslinger quoted part of Monterey's response: "According to Table 6.6(c) of
the MESA Engineering and Design Manual, ••• the decant system of a large
impoundment in a low hazard area--large impoundment, low hazard, must
handle ninety percent of the half PMP for the area." He continued,
"so, ••• they're [Monterey] saying that it is a large impoundment of low
hazard." Eslinger at 30-31. Counsel for the Secretary offered the
following explanation of the confusion:
••• [MSHA received] a cover letter from Monterey
indicating that the one half PMP should be used
and referred to data contained in the attached
report from Hanson Engineers. The Hanson document that is attached talks in terms of the OPP
rather than the one half PMP.
Childers at 43. See Eslinger at 30-34; Childers at 41-44; Mazzei at
60 and 77; and Wu at 14. Thus, although the record before us does not
contain all the various documents referred to, we believe that it is
nevertheless clear from the record that some of the confusion may
have been caused by Monterey's submissions.

1015

Regardless of the precise cause of the mistaken approval, however,
we find that it was a good faith mistake. Insofar as this record establishes, MSHA's consistent practice in classifying the size of impoundments
is to measure the height and-volume of stored water and slurry. Based on
this practice, the No. 3 impoundment should have been classified as "large"
wi·th "low hazard" requiring a ~ PMP design storm. However, the impoundment
was approved using the less conservative OPP design storm, apparently
because only the volume of stored water, and not slurry, had been taken
into account. In Penn Allegh Coal Company, 3 FMSHRC 2767 (Dec. 1981), we
addressed the effect of a mistaken approval of a provision in a dustcontrol plan. We held that a good-faith mistake in a plan approval may
be repudiated. 3 FMSHRC at 2770. Thus, we hold that MSHA was not bound
by its mistaken approval of the wrong design storm.
We further find that MSHA was justified in withdrawing approval of the
plan based on its concern over the safety of the impoundment. We base
this finding on the purpose of 30 C.F.R. § 77.216; the fact that No. 3
impoundment showed numerous signs of stress; and the conclusion that
MSHA's purpose in correcting the design storm error was to increase the
safety of the impoundment. We first address the purpose of the standard.
We acknowledge that the literal wording of the citation and the
relevant correspondence between MSHA and Monterey do not explicitly
state that withdrawal of the plan was based on safety considerations.
Rather, Monterey was cited for not having an approved plan in effect and
the correspondence between the parties focuses on the dispute about the
size of the impoundment and the appropriate design storm. In resolving
this dispute, the judge limited his inquiry to the size of the impoundment under a literal application of Table 6.6. We conclude, however,
that this classification controversy has unfortunately clouded and distracted attention from the basic purpose of the standard and the real
issue in this case, i.e., whether MSHA had proper cause to revoke its
previous approval of the impoundment plan.
In explaining the purpose of 30 C.F.R. § 77.216, the Secretary states:
MSHA interprets 30 C.F.R. § 77.216 to require submission
of plans for ~he design, construction, and maintenance
of structures which impound water, sediment, or slurry.
Such plans must provide for effective containment of
potentially hazardous amounts of refuse.
Sec. Br. at 20-21 (emphasis in original). District Manager Childers described the approval process after an impoundment plan is received. He
testified that his "primary concern" and the "bottom line" in approving
plans is safety. Childers at 38-39. The Secretary further states:
MSHA analyzes plans for the development of impoundments in light of both the resistance of the retaining
structure to failure and the likely results given
structural failure.

1016

PDR at 3. To emphasize our central observation, we conclude that the
purpose of the standard is to assure the safety of impoundments and
minimize the risk and effect of failure.
In their depositions, four of MSHA's experts testified at length
concerning the history of various safety problems at the impoundment. 15/
The first apparent problem was in the construction of the impoundment.-.The dam is constructed of a coarse refuse material covered by clay. The
clay covering was intended to be thin but was applied thickly. Stress
was experienced in the impoundment because the clay would not let the
water through the structure which in turn raised the phreatic surface
(i.e., water table). Also, as noted earlier, the impoundment experienced
two instances of serious slippage, first on the south slope in 1978
and then on the west slope in 1979. In addition, Inspector Eslinger
observed boils occurring in the area of the most recent slide. Boils
were described as problems, an indication of weakness, and a sign of
distress. 16/ In addition to these difficulties the static safety
factor (fo-r-slope stability) measured less than the minimum permissible
reading of 1.5. Based on the piezometer readings, MSHA found safety
factors ranging from just under 1 to 1.3. Inspector Eslinger testified that the impoundment "has always been a borderline on slope
stability." 17/ We conclude these safety related problems are
sufficient tojustify MSHA' s action in withdrawing the plan approval.
We further find that MSHA's purpose in correcting the design storm
error was to increase the safety of the impoundment. Inspector Eslinger
acknowledged that the reason for issuing the citation was that MSHA was
interested in altering the operational parameters of the pond:
[T]he violation was written and we were seeking to
modify the plan to gain this lower operating level
which would provide the increased safety for the
storage aspect of the storm •••
Eslinger at 7-8. Inspector Eslinger further testified that the impoundment
was safer with less water in it. Id. at 13. In addition, Mr. Mazzei
testified that "if you lower the water lev!=l, you're going to lower the
intensity of the boils." Mazzei at 29. Thus, MSHA's experts believed
that changing the design storm and lowering the water level result in
the increased safety of the impoundment.
We also note that two of MSHA' s exper_ts testified that had MSHA
not corrected the design storm, MSHA would have required Monterey to take
other action to increase slope stability. Mr. Eslinger was asked what

15/

Eslinger at 14, 16, 36 and 40-42; Rath at 5-6 and 8-9; Mazzei at

7, 27-28; 32, 72, and 74-76; and Wu at 15 and 22.
16/
17/

Mazzei at 28; Rath at 8; Eslinger at 14; and Wu at 22.
Eslinger at 16-17.

1017

MSHA would have done to increase slope stability if MSHA had not found
the design storm error. He replied, "we probably would have requested
[Monterey] to do something which may have meant lowering the operational
level to insure a minimum [slope stability] of 1.5."· Eslinger at 35-36.
Also, Mr. Mazzei acknowledged that if the OPP design storm were to remain
in effect work would have to be done on the impoundment from a stability
standpoint. Mazzei at 74. This testimony supports a finding that MSHA's
overall concern was the safety of the impoundment. Thus, we find that
MSHA withdrew its plan approval and ultimately issued the citation requiring data to support a more conservative de5ign storm because of valid
safety concerns.
We further find that Monterey suffered no legal prejudice as a
result of MSHA's actions. In its brief Monterey argues:
The essence of Monterey's grievance and the core of the
decision below is that MSHA acted arbitrarily and unreasonably by requiring Monterey to comply with Table 6.6 and then
punishing it for doing just that.
Br. at 7.

During oral argument, counsel for Monterey stated:
It [MSHA] had the right not to use Table 6.6 or to develop
a new standard based on Table 6.6 but taking a differ~nt
approach. But it didn't do that, at least it didn't tell
the world about it if it did.

Oral arg. tr. at 20. At first glance, Monterey's position might appear
to have merit. During the submission of the initial plan in 1976 and 1977,
Monterey was told to use Table 6.6. Later, in the letters of June 13, and
July 3, 1980, MSHA itself relies on the Table as justification for ~ith
drawing the plan ·approval. MSHA then stated in its letter of July 29,
1980, that it is not required to use the manual and relied on 30 C.F.R.
§ 77.216 to support its action.
However, insofar as the record in this case reflects, except for the
mistake made in the present case, MSHA was consistently interpreting Table
6.6 the same way; there was no change in MSHA's policy or position. All
five MSHA witnesses ·stated that they interpreted Table 6.6 to refer to
water plus slurry • ..!!!_/ Therefore, in their view, the No. 3 impoundment
was always large in size and always required a ~ PMP design storm.

18/

Eslinger at 29; Childers at 33; Rath at 17; Mazzei at 54 and Wu
MSHA's consideration of the total volume of stored water and
slurry in classifying the size of an impoundment is based on its
documented engineering judgment that, due to the extremely fluid
nature of the settled and suspended coal fines, this material, as
well as the water, would mobilize and flow in the event of an
impoundment failure. Mazzei at 22-23, 50-55; Wu at 16-17; Sec.
Br. at 25-8.

at 20.

1018

We cannot conclude that MSHA's use of the Table or its act of
withdrawing the plan approval was arbitrary and capricious. MSHA is
not bound by the literal terms of Table 6.6 •. It is a guideline, not
a mandatory standard. ~· King Knob Coal Co., 3 FMSHRC 1417, 1420
(June 1981); Alabama By-Products Corp., 4 FMSHRC 2128 (Dec. 1982).
Also, of great importance here, Monterey had adequate notice before
issuance of the citation of how MSHA intended to apply the Table to
its operation and the remedial action that would be required. 19/
Monterey was also given a reasonable time to comply. MSHA's initial
action was a letter, not a citation and it allowed 20 days to submit
the data. In MSHA's letter of July 29th the time for submission of
the data was extended until August 12, 1980 "because of the delays
created by correspondence on this matter." Even then, the citation,
issued September 11, 1980, was preceded by a meeting and telephone
conversations. Thus, prior to issuance of the citation Monterey was
given unequivocal notice of and a reasonable opportunity to comply
with MSHA's interpretation and use of the Table. ~· Penn Allegh Coal
Co., supra. ];QI In sum, we find the course of action taken by MSHA to
have been a reasonable approach, and not arbitrary or capricious.

J:!i/

Penn Allegh also describes the actions Monterey has taken:

The requirement of good faith negotiations by both parties
eliminates any fear that an operator must forever labor
under a provision that has been adopted and approved.
If an operator believes a revision is warranted, has
engaged in a reasonable period of good faith negotiation,
and believes the Secretary has acted in bad faith in
refusing to approve the revision, he can obtain review
of the Secretary's action by refusing to comply with
the disputed provision, thus triggering litigation
before the Commission.
3 FMSHRC at 2773, n.8.

]!2/

In fact, Monterey was not required to lower the actual water elevation then present in the impoundment. At the time the citation was
issued the facility was operating at about 660 feet. Stipulation No. 18.
Utilizing an OPP design storm, it could operate at µp to 662 feet.
Utilizing the ~ PMP design storm, it could only operate at an elevation of 660.5 feet.

1019

Accordingly, the decision of the judge is reversed, the citation for
failure to have an approved plan in effect i af.firmed, and the
remanded for the imposition of an appro r
tf
i
~~~:

s

, Commissioner.

~~~
:hairNeison,
Commiss.ioner

1020

Collyer, Chairman and Backley, Commissioner, dissenting:
I

We dissent. The record in this case shows that MSHA did not withdraw approval of Monterey's plan for the design of its impoundment
because of concerns about the stability of the structure. Approval of
the plan was withdrawn solely because of a dispute between MSHA and
Monterey over the correct meaning of the guidelines contained in Table
6.6 of the Design Manual.
MSHA's interpretation was wrong and the citation should be vacated.
Any attempt to label this interpretation a "good faith mistake" fails
because of MSHA's actions in the dispute, as outlined below. Under
proper circumstances, MSHA may not necessarily be bound to the guidelines in Table 6.6. However, when it relies on specified guidelines for
issuing a citation, as here, it is bound by the terms of those guidelines alleged to have been violated.
In order to properly understa,nd the basis for this controversy, the
genesis and purpose of Table 6.6 should be explained. Table 6.6 is only
one section of a major effort on the part of the government to set
standards for the design and maintenance of coal impoundments and
handling of coal waste after the Buffalo Creek disaster in 1972. The
Mining Enforcement and Safety Administration (MESA), MSHA's predecessor,
contracted with E. D'Appolonia Consulting Engineers to develop a design
manual to provide guidance to inspectors and industry alike. The result
was published under the title: "U.S. Department of Interior, Mining
Enforcement and Safety Administration, Engineering and Design ManualCoal Refuse Disposal Facilities." As the correspondence in this case
illustrates, the Manual has been used since publication as the official
parameter against which all impoundments are measured.
Table 6.6 in the Design Manual is what MSHA uses to determine the
"size", "hazard potential", and "design storm" for coal refuse impoundment structures. 21/ Although other textbooks and references are also
consulted by MSHA in reviewing impoundment plans, none of these other
references is used to determine the size, hazard potential or design
storm for impoundments. 2:1__/ Thus, the "size" classification, which is
at the heart of the dispute in this case, is entirely the creation of
the authors of Table 6.6 and that table is the only source that is used
by MSHA to make such "size" classifications for coal refuse impoundments.
The nature of Table 6.6 also needs a fuller explanation than is
provided in the majority opinion. Table 6.6 is arranged like a matrix.
The proper design storm for an impoundment is determined by matching the
"size" variable with the "hazard potential" variable for each facility.
There are three size classifications: small, intermediate, and large.
These classifications are based on the maximum volume and depth of
stored water. There are also three hazard potential classifications:
low, moderate, and high. The hazard potential classifications are based
on the severity of damage that would occur if an impoundment failed.
21/
22/

Mazzei at 16-17.
Mazzei at 15-17.

1021

It is undisputed that Monterey's No. 3 impoundment has a "low"
hazard potential. 23/ For a facility with a "low" hazard potential like
the No. 3, the One Percent Probability (OPP) is the appropriate design
storm if the impoundment is "intermediate" in size. If it is "large" in
size, the design storm should be one-half Probable Maximum Precipitation
(1/2 PMP).
As the majority points out, Monterey by letter dated July 30, 1976,
was requested to submit a justification of the selection of the OPP
design storm for its No. 3 impoundment. In this letter, MESA stated,
"Adequate justification could be the use of Table 6.6." Monterey submitted the requested material and its plan for an "intermediate" impoundment was approved on July 6, 1977. In July of 1980, MSHA withdrew its
approval and in September of that year issued the citation that gave
rise to this proceeding. The basis for the citation was Monterey's
failure to have an engineering plan for a "large" size impoundment.
The dispute between MSHA and Monterey centers on whether the size
classifications contained in Table 6.6 are based on the total volume and
depth of stored water or on water plus settled solids or slurry. If
water only is counted, both parties acknowledge that the impoundment is
intermediate in size and the OPP is the appropriate design storm. If
water plus slurry is counted, the impoundment becomes large in size
under Table 6.6 and the design storm should be 1/2 PMP.
The record plainly shows that the size classifications in the Table
are based on water only. On page 6.3 of the Table, it is explained that
the size classifications are based on water "above any settled material."
The explanation of Table 6.6 continues with the statement that:
... These volumes and height limitations represent
conservative values compared to those typically
specified for water impoundments •.•• However, coal
refuse impoundments often contain settled fine refuse in addition to water, which could contribute
significantly to downstream damage in the event of
an embankment failure .... These limits reflect a
conservative appr0ach to account for possible added
damage due to settled slurry.
Table 6.6 at 6.63 and 6.64.

Joint Exhibit 6.

This language means two things: first that the "size" classifications in the Table are based on water only; and second, that the
authors took into consideration the potential damage of water plus

J:l./

The description in the Table of an impoundment with low hazard
potential is: "Facilities located in rural or agricultural areas where
failure would cause only slight damage, such as farm buildings, forest
or agricultural land, or minor roads."

1022

slurry in drafting the size portion of the Table. It shows that the
authors of the Table took into account the differences between water and
slurry in developing the design storm criteria for impoundments and
deliberately based the size classifications on water only by using
conservative figures.
That the authors of the Table intended to.base their formulation on
water only is confirmed by the principal editor of the Manual who was
"directly involved in the development of Table 6.6." The testimony of
Mr. Richard D. Ellison, the principal editor of the Manual and Executive
Vice Preside~t of D'Appolonia Consulting Engineers, introduced by both
parties in Joint Exhibit 10, reads:
these dimensions relate to the water above
any settled solids, and do not include the depth
and volume of settled solids. This differentiation between water and settled solids was understood and considered at the time that Table 6.6
was being developed. Accordingly, the discussion
about how to use Part A of •'the Table, on Pages
6.63 and 6.64 of the Manual, makes specific
reference to the fact that only the water should
be considered.
Thus it cannot be disputed that the Table applies to ~ater only and
that it was designed to apply to water only. In fact, MSHA's expert
witness, Dr. Wu, Chief, Mine Waste and Geotechnical Engineering Division,
Bruceton Safety Technological Center, Bruceton, Pennsylvania, admitted
that the Table applies to water only. Wu at 16-17. We emphasize this
point not only because the majority minimizes it but because it is
necessary in a ~eview of MSHA's actions. The majority suggests that the
judge was being overly "literal" in applying the Table. The judge,
however, interpreted the Table as it is written and as it was intended
to be interpreted. The Table must be "modified" to apply to water plus
slurry.
The reinterpretation of the Table in this fashion is illogical and
tortuous. Table 6.6 is an engineering formula, not some phrase in a
statute or regulation susceptible to various interpretations. One
cannot take the formula, alter the definition of one of its terms, and
then proceed to use it as if the formula retained any rational validity.
Perhaps the judge put it best:
[MSHA] cann~t .•• successfully charge an operator
for the violation of the handbook's Table 6.6
and at the same time ignore the definitions of
the terms used in that Table. The formula for
deriving the circumference of a circle is only
valid if "R" equals the radius, and "Pi" equals
approximately 3.1414. A change in the meaning
of any of the terms destroys the effectiveness
of the formula and the same is true of Table 6.6.

1023

The decision of the majority sanctions this illogical reinterpretation of .the Table. No attempt is even made to. provide a scientific
or technical justification for modifying the specifications contained in
the Table. This omission is not surprising because MSHA has advanced no
engineering reason to explain why slurry should be counted when using
this Table. In fact two MSHA officials thought they were correctly
interpreting ·the Table as written. In this regard, Charles Rath, MSHA' s
Supervisory Coal Mine Technical Specialist and author of the letter
revoking approval of the plan responded as follows:
Question: What if you were to learn that we were right, that
Monterey Coal Company has correctly interpreted how
one makes these calculations to determine the size
of the. pond, would you recommend approval of the
plan you disapproved in June? In other words, would
you withdraw?
Rath:

Rath at 22.

Certainly if it could be proved that the interpretation is incorrect, that that wasn't the intent
of the engineering parameters or whatever, why,
certainly I wouldn't have any reservations about
that.
(See also, Rath at 20, 28-29; Eslinger at 21-23.)

Two other MSHA engineers said that they thought that the authors of
the Table made a "mistake," but they provided no reason for that
belief. 24/ The confusion on the part of MSHA's expert witnesses is not
surprising given the fact that the slurry is already accounted for by
the use of conservative numbers. Essentially, MSHA's present position
"counts" the slurry and settled materials twice.
24/ The MSHA engineers surmised that a "mistake" was made because the
authors of the Table drew on the experience of the Corps of Engineers
and the Bureau of Reclamation, agencies that are in the business of
building structures that retain water only. Wu at 16-17; Mazzei at 12-

14.
The belief that the authors of the Table did not take into account
the difference between coal refuse impoundments and impoundments that
retain only water is refuted by the language of the Table itself. The
explanatory material on size classification in the Table says: "These
volume and height limitations represent conservative values compared
to those typically specified for water impoundments ... " Table 6.6 at
6.63. In addition, Mr. Ellison, the principle editor of the Manual, unequivocally stated that the difference between water and settled solids
was understood and considered when the Table was developed.
Thus even the unfounded suppositions offered by MSHA to explain why
slurry should be counted do not appear to be accurate. If the Table
does not represent prudent engineering, it should be changed in its
entirety and not modified arbitrarily because of unfounded guesses.

Despite this, the majority finds that MSHA was justified in withdrawing approval of plan. The majority gives three principal reasons
for upholding MSHA action in this case: (1) withdrawal of the plan was
prompted by legitimate concerns over the stability of the structure;
(2) MSHA has consistently interpreted Table 6.6 to include water plus
slurry; (3) Table 6.6 is not a mandatory standard and MSHA is not bound
by its literal terms. None of these rationales stands up under scrutiny.
First, the assertion that MSHA's concerns about the stability of
the dam prompted withdrawal of the plan is simply not supported in any
fashion by the record. The dam had developed surface indications of
possible stress -- the boils and slippage so emphasized by the majority.
In response to these indications, MSHA had only recommended that the
structure be closely monitored. Obviously, these signs of possible
stress did not mean the dam was unstable, only that it bore watching.
With the agreement of MSHA, Monterey had installed peizometers to monitor
the dam in order to determine whether any corrective action were needed.
The only relationship the monitoring project had to the citation was
that the supposed "discrepancy" in approving an OPP design storm in 1977
was discovered while the plan was b.eing reviewed in connection with the
monitoring. '!:2_/
Both the citation and the correspondence between the parties show
that approval of Monterey's plan was withdrawn solely because MSHA
believed that Table 6.6 dictated a 1/2 PMP design storm for this impoundment. Not only did the initial MSHA withdrawal letter state that
its action was based upon the fact that "Table 6.6 requires a 1/2 PMP
design storm ~o be used for a structure of this size" (Joint Exh. 1),
but a subsequent response to Monterey's defense of the plan was even
more to the point:
Table 6.6 ... recommends that for ... a large
impoundment of low hazard, minimum design
storm acceptable is the 1/2 PMP, 1/2 the Proable Maximum Precipitation. We must adhere to
these recommendations.
Joint Exh. 3. Neither the citation nor subsequent correspondence ever
mentioned safety considerations as a basis for withdrawal of the
plan. 2J!..../

'!:2_/
26/

See Joint Exh. l; Eslinger at 4-8, 16-21; Rath at 8-12.
Even if it were true that safety considerations prompted revocation
~the plan, MSHA's withdrawal of plan approval would be legally defective
for its very failure to state the true reason. The Commission, like a
reviewing court, "must judge the propriety of such action solely by the
grounds invoked by the agency. If those grounds are inadequate or·
improper, the Court is powerless to affirm the administrative action
... " Secretary v. Chenery Corp., 332 U.S. 194, 196 (1947). See also
Burlington Truck Lines, 371 U.S. 156, 169 (1962)(the law requires "an
agency's discretionary order be upheld if at all, on the same basis
articulated in the order by the agency.")

1025

But there is an even greater problem with the majority's conclusion
that safety considerations prompted revocation of the plan. The MSHA
officials involved in this case have repeatedly disavowed the suggestion
that safety concerns were the basis for their action. Charles Rath, the
author of the letter revoking approval of the plan, denied that revocation
of the plan was related to concerns about stability. ]:]_/ The man who
issued the citation, Charles Eslinger, a mining engineer who specializes
in impoundments, was also emphatic that the design storm "error" was the
only reason for revocation of the plan. He confirmed Rath's statement
that MSHA did not require lowering the level of the pond because of
stability problems. Eslinger said that "we would not at this time do
anything about the stability aspect" except to closely monitor the
facility. 28/
27/

28/

The following exchange during Rath's

deposition shows this:

Question:

[was] the withdrawal of the plan's approval because
of the design storm error as we discussed another way to
get at a concern with the stability of the dam?

Rath:

No, net at all.

(Rath at 39-40).

Here is what Eslinger said during his deposition:
Question: When the plan approval was withdrawn in June, it
was withdrawn because of a design storm error, is
that correct?
Eslinger: Right.

That's the only consideration.

Question: But the approval was only withdrawn for this reason?
It wasn't withdrawn because of the phreatic level
consideration, is that correct?
Eslinger: No, at this time we felt that we were only going to
address the problem of the wrong design storm. We did
not require that it be lowered because of the stability.
We felt that at sometime in the future maybe we would
have to do that.
Question: But you would continue to monitor closely?
Eslinger: Continue to monitor, inspect. They're required by
regulations to make a reading of those piezometers
once every seven days and we can request them for
that information. And we felt that we would. not
at this time do anything about the stability aspect,
although this in itself would probably help the
f?tability analysis because you're lowering the water
level a foot and a half. But that was not .•• it
was just based on the design storm, that was the
only consideration.
Eslinger at 21-23. See also, Mazzei at 36.

1026

On this record, the judge quite rightly found that MSHA did not
revoke approval of the plan because the impoundment was unsafe. To
overturn that.finding, the majority has had to skirt direct testimony
that the citation was issued solely because MSHA incorrectly believed
that the wrong design storm was used. The majority has also completely
ignored the fact that the MSHA officials who issued the citation repeatedly
and consistently denied that stability problems prompted their action.
We can understand their reasons for taking this path, for to uphold
the citation is a formidable task given the evidentiary record developed
bel9w. The specter of disaster, as opposed to the evidence which we are
statutorily required to review, is conjured up to justify this arbitrary
administrative action. The majority engages in the following line of
reasoning: the impoundment had shown "signs of stress"; reinterpreting
the Table would result in a lower water level; lowering the water level
would increase the safety of the structure; therefore, the reasons for
disapproving the design storm can be disregarded because safety will be
enhanced in any event.
It is irrefutable that the safety of any impoundment is increased
when the water level is lowered. Less water means less pressure on the
structure. An impoundment that contains nothing is safest of all. The
majority marries this less-is-safer notion with the fact that the
operation of the dam was being monitored to reach the conclusion that
withdrawal of the plan was justified. Repeated references to slippage,
boils and instability create the impression that MSHA stepped in to
protect the public interest when it withdrew the plan.
The severity of the safety problems at this facility have been
exaggerated. MSHA has always considered this impoundment to have a "low
hazard potential" on a scale of low, medium, and high. The firm of
Hanson Engineers, Inc. which has inspected, conducted remedial construction upon, and closely monitored the No. 3 impoundment since 1975,
gave the following assessment of the stability of this structure:
Based upon field observations and the field and
laboratory data developed over the years, it is
[the] opinion ... of Hanson Engineers, Inc. that
the embankment distress experienced at. the No. 3
impoundment is basically a surface feature, and
that it does not suggest that the mass stability
of the embankments has deteriorated. The static
and dynamic factors of safety for mass stability
reported by Hanson Engineers, Inc. in March 1979
for a pond elevation of 662.0 (i.e., minimum
static factor of safety= 1.7 and a minimum dynamic factor of safety = 1.2 to 1.3) are conside.red to be reasonable estimates of safety
against failure as based upon the standards of
practice of the profession and the present state
of the art. These factors of safety would not be
significantly different for pond levels 1 to 2 ft.
higher or lower than elevation 662.0.

1027

The sworn professional opinion of this firm is that the maintenance of
this impoundment at the 662 foot water level, a level consistent with
the use of an intermediate size classification, combined with the monitoring program, represents "prudent engineering practice for the continued safe operation of the No. 3 impoundment." Joint Exh. 11.
It was also apparently the opinion of MSHA that this impoundment
posed no immediate risk. ']!}__/ If such a risk did exist, MSHA could have
and should have issued an imminent danger order. Requiring that the
water level be lowered a foot and a half, an action that would have no
significant effect on the safety of the structure according to Hanson
Engineers, would not have been an adequate corrective measure if this
facility posed any real danger.
What we have here is a massive attempt at post hoc rationalization.
Put in the vernacular, MSHA clearly goofed. It ordered Monterey to
amend its plan to drop the water level a foot and one-half because MSHA
believed that the Manual dictated this result. Because the Manual did
not dictate that result, as Dr. Wu admitted, safety concerns were seized
upon to cloak this mistake. The record shows what MSHA did and why it
did it. We cannot ignore the facts and find that safety compelled
withdrawal of the plan.
The additional reasons given by the majority for upholding this
citation also evaporate when examined. The majority says that MSHA's
action should be sanctioned because MSHA has consistently interpreted
Table 6.6 to refer to water plus slurry, "insofar as the record in this
case reflects." The record in this case does not "reflect" any such
evidence to support a "consistent interpretation." The evidence on
whether MSHA has·consistently interpreted Table 6.6 is scant. It
consists only of the statements of MSHA's witnesses made during this
litigation that they interpreted Table 6.6 to refer to water plus
slurry. Two of those witnesses thought they were correctly interpreting
the Table as written. ]!}_/ In this very case, a size classification
based on water only was approved when the initial plan was reviewed in
1976-77. No published material to substantiate a consistent agency-wide
practice apparently exists. Thus, we do not know that MSHA has always
interpreted the Table in this fashion.

2:2/

Inspector Eslinger stated "There is a degree of hazard associated
with an impoundment structure. Just like when you operate a car there
is a degree of hazard .... And when you build an impoundment, there is
some hazard associated with it." But, said Inspector Eslinger, "I don't
see it failing in the near future. I would think there would have to be
serious deterioration of the quality of the structure before -it failed."
Eslinger at 15; see Rath at 39-40; see also Mazzei at 39-40, 74 (his
concerns could be adequately addressed through close monitoring rather
than lowering the water level).
30/ Rath at 20, 22, 28-29; Eslinger at 21-23.

1028

More importantly, even if MSHA has consistently interpreted the
Table to refer to water plus slurry, that alone does not warrant according
deference to MSHA's interpretation. The majority cites no authority
(because there is none) that an agency's interpretation should be deferred
to simply because the agency has been consistently mistaken.
Deference is accorded to an agency's interpretation only when the
agency's interpretation is reasonable. 31/ The interpretation advanced
by MSHA is wholly unreasonable. Not only is it contrary to the plain
meaning of Table 6.6 and the plain intent of engineers who formulated
the Table, it is inherently illogical. Moreover, not a shred of evidence
has been presented on which we as adjudicators could pase a finding that
MSHA's interpretation is reasonable. In the face of this, blessing
MSHA's interpretation simply for the reason that it may have been consistent has no basis.
Lastly, the majority excuses MSHA's arbitrary action in this case
on the grounds that MSHA is not bound by the literal terms of Table 6.6
because it is a guideline, not a mandatory standard. The principle that
an agency is not bound by guidelines that have not been promulgated as
regulations is inapposite here. MSHA withdrew approval of Monterey's
plan for the very reason that Monterey allegedly did not comply with
this guideline.
MSHA is not bound to follow the guidelines in Table q.6. New
standards for selecting design storms should be developed if they are
needed. But when MSHA does follow Table 6.6 and when it requires
Monterey to follo~ Table 6.6, it must do so rationally and correctly
within the terms of the Table. MSHA has broad discretion in regulating
coal refuse impoundments through the plan approval process. But that
discretion can be abused. We must dissent because such an abuse took
place in this case.

31/ Lucas Coal Company v. Interior Board of Mine Operation Appeals 522 F.2d
581, 584 (3rd Cir. 1975).

1029

Distribution
Timothy M. Biddle, Esq,
Thomas C. Means, Esq.
Crowell & Moring
1100 Connecticut Ave., N.W.
Washington, D.C. 20036
Linda Leasure
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Charles C. Moore
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

1030

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

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

22041

JUN 1 1983

Civil Penalty Proceeding
:.

Docket No. WEST 82-118
A/O No. 42-01279-03060 V

v.
Belina No. 1 Mine
VALLEY CAMP OF UTAH, INC.,
Respondent
DECISION
At a hearing in Salt Lake City on or about March 23, 1983, the
parties moved to approve settlement of the captioned penalty proceeding.
The single violation was bottomed on the charge that a continuous
miner operator had committed a condoned violation of the operator's
approved control plan by working his continuous miner 30 feet inby the
last row of permanent roof supports. The settlement proposed was $1,000.
Based on an independent evaluation and de nova review of the
circumstances the trial judge rejected the settlement on the ground
it was insufficient to deter future violations and insure voluntary
compliance either by management or the contract miners. Whereupon, the
parties agreed to submit a proposal to increase the amount of the
penalty to $2,500 and to make a matter of record a reprimand of the two
individuals responsible for the violation together with an assurance
from management that recurrence of such conduct would be the subject of
disciplinary action, including discharge.
It is my firm belief, often expressed, that unless and until
contract or day-rate miners (rank-and-file miners) are sanctioned for
knowing violations of the mandatory health and safety standards the
purpose and policy of the Mine Safety Law will never fully be achieved.
The Secretary and the Unions, of course, do not agree. Nevertheless,
I will continue to use the limited power vested in my office to impress
on rank-and-file miners the vital necessity for compliance with mining
practices that time and experience have shown to be essential to the
preservation of the industry's and the nation's most precious resource-the miner him/herself.
The premises considered, I find the renewed motion to approve
settlement is in accord with the purposes and policy of the Act.

1032

Accordingly, it is ORDERED that the motion be, and hereby is,
GRANTED. It is FURTHER ORDERED that the operator pay the amount of
the penalty agreed upon, $2,500 on or before Friday, June 24, 1983
and that subject to payment the captio
matter be dismissed.

Joseph B. Kenneay
Administrative Law Judge
Distribution:
Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Bldg., 1961 Stout St., Denver, CO 80294
(Certified Mail)
James A. Holtkamp, Esq., Van Cott, Bagley, Cornwall & McCarthy,
50 South Main St., Suite 1600, Salt Lake City, UT 84144 '(certified
Mail)
Richard L. Trumk.a, Esq., President UMWA, 900-15th St., N.W., Washington, DC
20005 (Certified Mail)

1033

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

JUN 3 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner·

Civil Penalty Proceeding
Docket No. PENN 82-312
A.C. No. 36-04595-03501

v.
Mahoning Creek No. 2 Mine
CARPENTERTOWN COAL & COKE CO., ·
Respondent
DECISION
Appearances:

David T. Bush, Esq., Office of the Solicitor, U.S. Department of
Labor, Philadelphia, Pennsylvania, for Petitioner;
Robert W. Thomson, Esq., Reed, Smith, Shaw & Mcclay, Pittsburgh,
Pennsylvania, for Respondent.

Before:

Administrative Law Judge Broderick

STATEMENT OF THE CASE
Petitioner brought this proceeding, seeking civil penalties for two alleged
violations of the mandatory safety standard contained in 30 C.F.R. § 75.316
allegedly occurring on March 24, 1982. At the commencement of the hearing, the
Secretary moved.that the petition be dismissed with respect to one of the
citations because investigation subsequent to its issuance disclosed that it
had been issued in error and that the Respondent was not in violation of 'the
standard as charged in the citation. Respondent did not oppose the motion. The
remaining citation charges that Respondent violated its approved ventilation
plan because an evaluation point (also called a monitoring point) was in an area
that could not be reached because of loose rock and water accumulations in the
travelway.
In January, 1982, Respondent requested approval of an amendment to its
ventilation plan which would include the relocation of the No. 9 evaluation
point because of dangerous roof conditions. The request was denied by the
MSHA district office on the ground that the revised location of the evaluation
point would not assure adequate ventilation in the idled worked-out areas. In
April, 1982, (after the issuance of the citation) the relocation was approved
contingent on the establishment of five ventilating boreholes, to be drilled
from the surface to the old No. 9 evaluation point.

1034

Respondent contends that the evidence does not establish the alleged violation of 30 C~F.R. § 75.316; and that the denial by MSHA of the request for
relocation of the evaluation point was arbitrary, capricious and unlawful.
Pursuant to notice, the case was called for hearing on April 14, 1983, in
Pittsburgh, Pennsylvania. Lester C. Walker, Federal coal mine inspector and
Alex O'Rourke, MSHA supervisory mining engineer, testified on behalf of
Petitioner; Carl Nagodi, Respondent's resident engineer, and Donald Lilley,
Respondent's Director of Health and Safety, testified for Respondent. Closing
arguments were made by counsel for both parties, and each was given the
opportunity to file posthearing briefs. A brief was filed on Respondent's
behalf.
Based on the entire record, and considering the contentions of the parties,
I make the following decision.
FINDINGS OF FACT
1. At all times pertinent to this proceeding, Respondent was the owner
and operator of the Mahoning Creek No. 2 Mine, an underground coal mine in
Armstrong County, Pennsylvania. The subject mine produces goods which enter
interstate commerce.
2. Respondent is a medium sized operator. There is no evidence that a
penalty imposed herein will affect its ability to continue in business, and I
therefore find that it will not.
3.

Respondent demonstated good faith in abating the alleged violation.

4.

Respondent's history of prior violations is good.

5. The ventilation plan for the subject mine approved by MSHA on
October 26, 1981, and in effect on March 24, 1982, required regular weekly air
readings to be taken at designated evaluation points shown on the mine map
which was part of the plan. One of the designated evaluation points, number 9,
in the 1 left off the Northwest Mains section, was not travelable on March 24,
1982, because of loose rock and water accumulations.
6. On March 24, 1982, Inspector Walker issued a citation charging a violation of 30 C.F.R. § 75.316-2(f)(l) because the No. 9 evaluation point in the
ventilation plan was no longer travelable. The citation was modified on July 14,
1982, to allege a violation of 30 C.F.R. § 75.316 and to state that the weekly
examination was not being performed due to loose rock and accumulations of water.
7. The area of the number 9 evaluation point had been "dangered off" by
a State of Pennsylvania mine inspector prior to March 24, 1982, because of the
roof condition. The roof could have been repaired and the area made safe by
timbering and cribbing it. This, however, would have involved a considerable
amount of work.

1035

8. Inspector Walker had visited the same area of the mine in early
January and noted the deteriorating roof conditions at that time.
9. On January 18, 1982, Respondent requested that monitoring points No. 9
and No. 12 be relocated because of dangerous roof conditions and flooding. This
was done at least in part as a result of the suggestion of Inspector Walker.
10. MSHA denied ·approval of the request by letter dated Febrµary 2, 1982,
on the ground that the revised locations of the evaluation stations "would not
assure the idled worked-out areas • • • would be adequately ventilated."
11. A supplemental request pertaining evaluation point No. 12 was
submitted to MSHA on March 3, 1982.
12. On March 18, 1982, MSHA approved the relocation of evaluation point
No. 12 subject to certain conditions. It repeated that permission was not
granted to relocate the No. 9 evaluation point.
13. The proposed relocation of evaluation point No. 9 was approved
April 22, 1982, subject to establishing boreholes at locations acceptable to
the MSHA District Manager, and subject to certain other conditions.
14. The citation referred to in Finding of Fact No. 6 was terminated on
. April 22,. 1982, because "a new map was submitted and approved by the District
Manager showing the relocation of the No. 9 evaluation point in the 1 left off
Northwest mains section."
15.

There· is no history of methane liberation in the subject mine.

16. The purpose of the evaluation points in the ventil~tion plan is·to
assure ventilation in abandoned or worked-out areas of the mine. The original
request was denied because in MSHA's judgment, to move the point 1,300 feet
outby as requested would mean "1300 feet less of the mine that we could assure
ventilation in."
17. The revised request for relocation of evaluation point No. 9 was
granted because it included a proposal to drill boreholes from the surface to
the original evaluation point 9 which would assure ventilation from the borehole to t.he relocated point 9. The revised request was based on numerous
meetings between Respondent and MSHA, and the possibility of drilling boreholes
had been discussed at these meetings.
18. It was and is the position of Respondent that all the air that would
have been measured at the original point 9 was being measured at the relocated
point 9, and that the boreholes had no effect on the movement of air between
the two points.

1036

ISSUES
1. Was Respondent in violation of 30 C.F.R. § 75.316 on March 24, 1982,
as charged in the citation as modified?
2. Can Respondent in a penalty proceeding raise the issue whether MSHA's
refusal to modify an approved ventilation plan was arbitrary, capricious and
illegal?
3. If so, was the refusal by MSHA to modify the approved ventilation plan
as requested by Respondent prior to the issuance of the citation herein
arbitrary, capricious and illegal?
4. If a violation of a mandatory standard is found to have occurred, what
is the appropriate penalty therefor?
CONCLUSIONS OF LAW
1. Carpentertown Coal and Coke Company was subject to the provisions of
the Federal Mine Safety and Health Act in the operation of its Mahoning Creek
.No. 2 Mine at all times pertinent hereto, and the undersigned Administrative
Law Judge has jurisdiction over the parties and subject matter cif this proceeding.
2. On motion of the Secretary, the petition will be dismissed with respect
to the violation charged in Citation No. 1144824. The Secretary stated that the
facts did not show a violation as alleged, and that the citation was issued in
error.
J.4 Respondent's brief discusses the citation (1144826 issued April 14,
1982) alleging a violation of 30 C.F.R. § 75.200 and the withdrawal order issued
April 20, 1982, for failure to abate the violation alleged. The citation was
subsequently vacated and the order declared void. Neither the citation nor the
withdrawal order are before me in this proceeding, and I do not pass upon their
propriety. Respondent states, however, that it agreed to drill boreholes only in
order to obtain MSHA's permission to relocate the evaluation point and get the
withdrawal order lifted.

4. The evidence shows prima facie, that Respondent on March 24, 1982, was
in violation of its approved ventilation plan and therefore was in violation
of 30 C.F.R. § 75.316.
DISCUSSION
Respondent argues that 75.316 only requires the adoption of a plan approved
by the Secretary and that it include certain information. It is much too late
to argue that the provisions of an approved ventilation plan are not themselves
enforceable as mandatory safety standards under the Mine Safety Act. See
Zeigler Coal Company, 4 iBMA 30 (1975), aff'd sub~ Zeigler Coal Company v.
Kleppe, 536 F.2d 398 (D.C. Cir. 1976); Secretary v. Mid-Continent Coal and Coke
Company, 3 FMSHRC 2502 (1981); Secretary v. Freeman United Coal Mining Company,
5 FMSHRC 590 (1983) (ALJ). There is no question here but that the approved plan

1037

required that air readings be taken at evaluation point No. 9 which on
March 24, 1982, could not be reached because of adverse roof conditions and
water accumulations. Therefore, prima facie, the ventilation plan was not
being complied with, which ipso facto is a violation of a mandatory health or
safety standard. However, prior to the issuance of the citation, Respondent
had requested a variance in the plan to relocate evaluation point No. 9, which
request had been denied. The basic issue in this case is whether the requested
variance and its denial can be asserted in defense of what otherwise would be
a violation of the plan.
5. A mine operator may not unilaterally change an approved ventilation
plan without MSHA approval even if it is shown that the change enhances rather
than diminishes safety. Secretary v. J. & R. Coal Company, 3 FMSHRC 591 (1981)
(ALJ). The Secretary is charged by law with protecting safety in the nation's
mines in the public interest. Under section 303(0) of the Act (repeated in
30 C.F.R. § 75.316), a mine operator must adopt "a ventilation system and
methane and dust control plan" which the Secretary must approve before it is
effective. The Act contemplates that the Secretary and mine operators will
cooperate in developing and revising such plans in accordance with changing
conditions in the mines.
6. I conclude that a mine operator may, in a proceeding to assess a penalty
for violation of an approved plan, challenge the reasonableness of MSHA's refusal
to modify the plan which had been requested by the operator. In Zeigler v.
Kleppe, supra, the Court of Appeals stated at page 407 that a mine operator might
contest an action seeking to compel adoption of a plan with terms not designed
for the specific circumstances of the mine involved and, at page 410, that the
imposition of "outrageously ultra vires plan provisions" nominally adopted by
a mine operator would not be enforced by a court. By analogy, I conclude that
an operator who has unsuccessfully sought a variance may, in a penalty proceeding for violation of a provision of the plan, defeat the action if he can show
either that compliance with the terms of the plan was impossible or that MSHA's
denial of the variance was arbitrary, capricious or unreasonable.
7. Compliance with the ventilation plan requirement that air be monitored
at eval~ation point No. 9 was not impossible as of March 24, 1982. Both the
Inspector and Respondent's Safety Director agreed that the roof leading to the
"old" evaluation point 9 could have been supported with cribs and posts. It
would have been a major and difficult task but was not impossible. Furthermore,
as is previously stated herein, MSHA approved the relocation of the evaluation
point when boreholes were included in the request. According to O'Rourke, MSHA
would also have approved a modification of the plan involving sealing off the
abandoned area. Compliance was therefore not impossible.
8. The initial refusal of MSHA to approve the relocation of evaluation
point 9 and its insistence on the establishment of boreholes to the surface
before approving the requested relocation were not arbitrary, capricious or
unreasonable.

1038

DISCUSSION
MSHA initially rejected Respondent's request to relocate the evaluation
point 9, because moving the point outby meant that to the extent it was moved,"
that much less of the abaµdoned area could be assured to have ventilation.
(Tr. 40). MSHA had, prior to March 24, 1982, suggested the drilling of boreholes to assure ventilation in the affected area, but Respondent did not include
a proposal to drill such boreholes until April 22, 1982. It is the position of
Respondent that the air measured at the proposed relocated evaluation point 9
would also measure the air at the old evaluation point 9 and that the boreholes
did not give any additional information as to ventilation. MSHA's position was
stated by Alex O'Rourke, a supervisory mining engineer, whose primary duty is to
evaluate plans or programs including revisions thereof, submitted by mine operators to the MSHA District Manager. Respondent's position was stated by Donald
Lilley, its Director of Health and Safety, formerly a training instructor with
MSHA, who had no professional training in mining engineering. The evidence shows
a bona-fide technical dispute concerning a very limited issue. Even if I accepted
the conclusions of Mr. Lilley (and Respondent), I would not conclude that MSHA's
position was unreasonable, arbitrary or capricious. The law requires MSHA's
approval for a variance. MSHA may not impose unreasonable conditions or arbitrarily deny a request, but obviously may impose reasonable conditions and need
not grant every good-faith request to modify a plan proposed by a mine operator.
There is no evidence in this record to support Respondent's hyperbolic statement
tl:iat "this is a case where bureaucratic bungling and red tape with not a little
governmental arrogance caused a problem that need never have arisen." The evidence does show a disagreement as to whether the modification originally sought
by Respondent would enable M8HA to assure itself that the abandoned area in
question would be ventilated. It is MSHA's responsibility to approve plans only
when it has that assurance. The conditions it imposed in this case were neither
unreasonable nor arbitrary.
9. Since I concluded that MSHA did not unlawfully reject Respondent's
request for modification of the approved ventilation plan, I need not address
the contention raised by Respondent that the Mine Act's failure to provide a
means for direct review of the MSHA action denying the requested variance is
unconstitutional.
10. The violation charged in the citation and found herein to have
occurred was not serious.
11. There is no evidence that the violation was the result of Respondent's
negligence.
12. Based on the criteria in section llO(i) of the Act, I conclude that
an appropriate penalty for the violation found is $20.
ORDER
Based upon the above findings of fact and conclusions of law, IT IS
ORDERED:
1. Citation No. 1144824 is VACATED and the penalty proceeding with respect
to the violation charged in the citation is DISMISSED.

1039

2. Respondent shall within 30 days of the date of this decision pay the
sum of $20 fo~ the violation of 30 C.F.R. § 75.316 charged in Citation
No. 1144823 and found herein to have occurred.

j cV1M.d ug~tJde:11teL
James A. Brqderick
Administrative Law Judge

Distribution:

By certified mail

David T. Bush, Esq. , Office of ·the Solicitor, U.S. Department of Labor,
Room 14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104
Robert W. Thomson, Esq., Reed, Smith, Shaw & McClay, Union Trust Building,
P.O. Box 2009, Pittsburgh, PA 15230
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th Street, N.W.,
Washington, DC 20005

1040

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

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

JUN 3 1983

Civil Penalty Proceeding
Docket No: WEST 81-268
A/O No: 42-00081-03027 V

v.

Co-op Mine

CO-OP MINING COMPANY,
Respondent
DECISION
Appearance:

Phyllis Caldwell, Esq., Office of the Solicitor, U.S.
Department of Labor, 1585 F.O.B., 1961 Stout Street,_
Denver, CO for Petitioner
Carl E. Kingston, Esq., 53 West Angelo, Salt Lake City,
UT 84115 for Respondent

Before:

Judge Moore

At the outset of the trial it was stipulated that reepondent's
annual_ production· was approximately 141, 233 tons and that it employed
approximately 25 miners. As to the history of prior viol?.tions there
was some question about the printout because it covered more than a 2year period. While MSHA, in its assessment formula, only considers violations
within 2 years of the one being assessed, such limitation does not bind
this Commission or its administrative law judges. The computer printout
was received in evidence as Exhibit P-1.
The printout has many flaws, however, and is not self-explanatory.
For example it includes assessed violations which have not been paid and
there is no indication whether they have been contested or vacated or
whether respondent has simply refused to pay. Such alleged violatious are
clearly not a part of the history of prior violations. A substantial number
of the alleged violations listed on the computer printout occurred betw~en
January 6, 1979 and January 26, 1981. Specific dates of the alleged violatio~s
are not listed. The earliest order issued in the instant c~se was issued
on January 6, 1981. While it is unlikely that all of the listed violations
were issued between January 6 and January 26 of 1981 I can not make the
assumption that they were not so issued, and even if I did I would have no
way of knowing how many occurred prior to January 6 of 1981. The entire
right half of Exhibit P-1 is stricken from the record.. As to the left
hand column it does show that some time prior to January 6, 1979
respondent had paid $12,578 in civil penalties.

1041

Government Exhibit P-3 is a mine map with numerous markings thereon.
There are five different colors used on the map. The testimony transcribed
at pages 12 through 17 purports to describe what these various colors
represent. I find that the description is inadequate and that the mine
map is of very little value in resolving the issues in this case. The
mine map attached to the government's brief is very good, however.
While it was not mentioned,in the briefs, respondent brought out in
the course of the examination of the inspector, that at the time the
citations involved in this case were issued, the United Mine Workers of
America was on strike, and while Co-op's mine was a union mine it was
not organized by the United Mine Workers and was not on strike. The
inspector's brother "was president of the union." (Tr. 87). I presume
the witness meant the local United Mine Workers chapter. The Co-op mine
was organized by the International Association of United Workers Union.
(Tr. 150). ]:./ I find that bias on the part of the inspector was not
established.
Withdrawal Order No: 1022260 alleges a violation of 30 C.F.R.75.1704
in that two separate and distinct travelable passageways for use as escapeways were not being maintained. The reason that they were not being properly
maintained was that a roof fall had occurred in the intake air escapeway
and the debris was in a pile that was about eight feet long and four to
five feet high. The inspector considered that as blocking the passage
which was one of the two escapeways. The other escapeway (return air) will
be considered later.
Mr. Bill Stoddard described the areas as follows--"this area was a
problem area. We had two parallel faults about 50 feet apart, and the roof
had dropped down about four feet, the roof of the mine dropped down about
four feet for 50 feet, then back up. So it was a. problem area." (Tr. 61).
After discussing the roof bolts and wire mesh that were holding up the
roof he said the cave-in material was about two feet high and four feet
across, that there was no loose roof and he could see that the section foreman had driven his tractor over the two feet of mud and gone on to work.
"So it wasn't blocked off and I went in and talked to Kevin at that time
about it."
Mr. Nathan Attwood, a mine foreman, was not in the mine at the actual
time of the inspection but was there on the same day, January 6.
He stated that both escapeways were travelable in a safe manner. (Tr. 137).
Mr. Kevin Peterson another mine foreman said in the area where the
June 6 order was issued, he had conducted a pre-shift examination, barred
down some material with other material previously barred down, created a
two foot high mound and driven his tractor over the mound and on into the
face area. He was with the inspector during the inspection and the tracks
where he had driven the tractor over the pile earlier in the day were
visible.

1/

For some reason witnesses Attwood and Mattingley were left out of
the index to the transcript.

1042

After considering the testimony discussed above, I find that there was
no roof fall in the area as stated by the inspector, but a pile of
debris that had been barred down from the roof. I further find that the
tractor had been driven over the pile of debris and that the escapeway on
intake air was not blocked by the pile of debris. Referring to this area
the citation says "a roof fall and bad top is pres~nt between the numbe~ 13
and 14 crosscut in the intake air entry ••• " Everyone who testified concerning
this ·area admitted it was a problem area with "bad top" but that does net
mean that the "bad top" was not properly supported. It is significant to
me that the inspector did not, on Janu~ry 6, 1981, issue any roof control
citations. I therefore find the intake escapeway was not blocked by either
debris or dangerous roof conditions.
The other escapeway is partially in return air and partially along a
belt entry. The inspector said the roof was supported by cribs and cross
bars and that they had "tremendous weight on them." (Tr. 21). He stated
"when he started around that crib and to get down into that hole, the
amount of pressure that was on those cribs and on those crossbars, there
wasn't no way that I was going to go through it." (Tr. 22). Concerning
the same areQ and the secondary escapeway Mr. Peterson said:
"and we got right here to these cribs and Mr. Jones
said that he didn't want to go any further and that
he couldn't get through there. And we had been
going through there and the belt man had been going
through there and we continued to go through there
setting timberc and cribs and carrying timbers and
cribs in there. because we realized that was a
problem area and we were supporting it." (Tr. 126).
When asked if there was anything in either the primary or secondary
escapeway that would prevent safe passage on January 6, he answered no.
In balancing the testimony of the various witnesses I find that the
government has not sustained its burden of proof with respect to this
withdrawal order.
Although it was not mentioned at the trial or in the briefs, the
inspector in this case failed to check the block which would make this a
citation. He ch~cked only "order cf withdrawal" block. In Kontiki Coal
Corporation vs. Secretary of Labor 1 FMSHRC 1476 (October 25, 1979), and in
Secretary of Labor vs. Wolf Creek Collieries Company which is reported in
the first unpaginated volume of FMSHRC decisions dated March 1979, the
judges had found violations and assessed penalties, but had vacated withdrawal orders because of the failure of the Secretary to establish the
underlying citations. In reversing the judges, the Commission stated that
it was improper to vacate a withdrawal order in a penalty proceeding.
Both of those Commission decisions involved the 1969 Coal Act and in each,
the alleged violation was established. In my opinion that is an entirely
different situation than .the instant situation where I have found that no

1043

violation existed. It would make no sense to leave a non-imminent danger
order, that was issued solely because of an alleged violation of a safety
standard, undisturbed in the face of a fi~ding that no violation occurred.
I therefore vacate the withdrawal order.
Withdrawal Order No: 1022262 charges that the operator failed to follow
its roof control plan and adequately support the roof of the return air entry.
The part of the return air entry involved herein was not designated as
an auxiliary or secondary escapeway. Concerning this return entry, the
inspector stated:
"When we got in here a-ways we encou~tered some bad top ••.
I think we was in about 600 feet. And then he wanted to
take me through a door out into the belt entry and I told
him no I wanted to stay in the return entry because .••.•
JUDGE MOORE:

You say bad top. Bad enough so you wouldn't
walk under it?

WITNESS:

It was getting bad--it was getting bad; it was
so high in there that it was hard to sound it
with your thumping stick, so really I was getting
a doubt in my mind as to how much further I
wanted to go.
But anyway, he told me we couldn't go on through
the return entry, that there were some large caves
in that ar.ea. And I said, 'well, how have they
been making their examinations?' He said, 'well,
we've been making it up to this point and then
going into the belt entry and up around'".[Tr.36-37].

He then ran into what he called "big caves" where the material from the
roof filled the entire entry, he could possibly crawl over the pile of coal
but he would have to go up above the roof line to do so. He referred to
the caved-in material as coal, but he did not issue any citations for
coal accumulations. It was later explained that plenty of air could go
over the top of the mound and that the inspections were made by going as
far as the caved-in material on one side and then going back out into a belt
entry, walking past the cave area, and then back into the return air are~
and then to proceed in the opposite direction to inspect the entry as far as
that end of the cave area was concerned. This had been approved by MSHA
for a long time (Tr. 75). A few days before inspector Jones arrived at the
mine the operators were advised that because of an explosion in an eastern
mine, MSHA had changed its position and would henceforth insist that a
return airway be maintained so that all of it could be walked through.
The statement on page 7 of the government's main brief "allowing large
roof falls to remain in the return air entry is clearly a violation of the
operatorl1 s roof control plan" may be true. I have not seen the plan or
been informed of what it requires, but such plans are usually concer~ed
with supporting a roof rather than cleaning up after a roof fall. The last
paragraph beginning on page 7 of the government's main brief states:

1044

Mr. Stoddard, the mine manager, said that he thought that
allowing this condition to exist was okay because an MSHA
supervisor or "some inspector" was "aware" of or had seen
it, or "some" circular said it was okay. Yet Mr. Stoddard
had never applied for a variance and had never gotten one.
(Tr. 108-109). He did not have a copy of any circular
nor was he able to be specific about the foundation for
his assumption that some "variance" he thought he had
was "chang~d." Respondent clearly knew he would be using
this defense at trial and could have supported this
hearsay testimony with the "documents'i referred to or
with the MSHA supervisor's testimony, if such evidence
did exist. Respondent never attempted to .obtain
the presence of Mr. Matekovic (the supervisor referred
to) at the trial, either by subpoena or through
this counsel's cooperation. As a mine operator, Mr.
Stoddard is charged with the knowledge that any variance
must be in writing. For obvious reasons he chose to
assume that he had authority to leave the deteriorated
conditions in this entry. It would have taken a g~eat
deal of his miners' time and labor to rehabilitate this
entry. When this order was issued the operator knew he
had to.completely abandon that entry •. It was easier to
establish a return air entry somewhere else because "we
couldn't rehabilitate that cave" (Tr. 77).
The language quoted above implies that the circular that Mr. Stoddard
testified about either does not exist or that the government does not
k..~ow whether it exists or not.
If the government can prove that the
circular referred to does not exist, it should consider prosecuting
Mr. Stoddard for perjury. If the circular does exist, and the Solicitor's
office is aware that it exists, then it should question the properiety of
including the above statement in its brief.
Nevin Mattingly is an electrician and vice president of the local
International Association of United Workers Union. As such he is concerned
with the safety of the miners. He accompanied· Mr. Jones on January 8
and did not see any dangerous roof and stated that every time he had gone
through the area it alooked sufficient."
In its reply brief the government challenges the credibility of
Mr. Mattingly. On page 4 the following appears:
Mr. Stoddard, an owner and the mine manager clearly
stated that "we' re non-union. (Tr. 87)". Yet the operator
attempted to present Mr. Mattingly as a union representative
in an effort to establish him as a credible and objective,
even adversary voice.
On Page 87 of the transcript it is explained that the U.M.W. was
striking and that the inspector's brother was an officer of the local UMW.
The following ensued:

1045

JUDGE MOORE:

And you're a non-union mine?

WITNESS:

We're non-union.

We're not a UMW mine.

I was the one that asked the question and as I understood the answer
the second sentGnce was a correction of the first. It is certainly not
enough to challenge the credibility of Mr. Mattingly. Whatever else
the government may have established about the conditions at the mine it
did not establish a roof co~trol violation and that is what the order
charges. I find a violation has not been proved and I vacate the order.
Citation No: 1023061 alleges a violation of 30 C.F.R. 77.202 for
accumulations of float coal dust and coal fines in various areas of the
tipple. The du3t standard for surface areas provides:
"coal dust in the air of, or in, or on the surfaces
of, structures, enclosures, or other fa~ilities shall
not be allowed to exist or accumulate in dangerous
amounts."
The accumulations described by the inspector were certainly extensive
enough to be considered "dangerous amounts". The accumulations consisted
of float coal dust and coal fines. The inspector described coal fines as
"ground-up coal dust that is too heavy to float on the air. (Tr. 51).
While I can not accept the inspector's opinion that this mixture of
unsuspended coal fines and float coal dust co~ld be ignited with a match
and could burn as rapidly as gunpowder (black powder) it was nevertheless
combustible, and a source of ignition in the form of a fire in a bu_cket
was in the area. I find that there was a violation and that respondent
was negligent. The hazard involved was serious but respondent exhibited
good faith abatement. I agree with the recommendationG contained in the
"Narrative Findings for a Special Assessment" (Exhibit P-2) and assess
a penalty of $800.
It is therefore ORDERED that respondent pay to MSHA, within 30 days,
a civil penalty of $800.

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

By Certified Mail

Phyllis Caldwell, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 F.O.B. 1961 Stout Street, Denver,
co 80294
Carl E. Kingston, Esq.,

53 West Angelo, Selt Lake City, UT

1046
/db

84115

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

80204

JUN
)
)
)
)
)
)
)
)
)
)
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JEFFREY E. HASTINGS,
Complainant,
v.

COTTER CORPORATION,
Respondent.

8 1983

COMPLAINT OF DISCRIMINATION
DOCKET NO. WEST 82-198-DM
MD 82-70

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

Appearances:
Mr. Earl D. Dungan, International Representative
Oil, Chemical and Atomic Workers International Union
425 East 10th Street
Leadville, Colorado 80461
For the Complainant
Barry D. Lindgren, Esq.
Mountain States Employers Council, Inc.
1790 Logan Street, P.O. Box 539
Denver, Colorado 80201
For the Respondent
Before: John A. Carlson, Judge
DECISION
This case arose upon a complaint of discriminatory discharge filed by
the complainant with the Secretary of Labor under section 105(c)(2) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., (hereinafter "the Act"). · The Secretary declined to prosecute the complaint, and
complainant, Jeffrey E. Hastings, then brought this proceeding directly
before this Commission as permitted under section 105(c)(3) of the Act.

104'1'

Mr. Hastings alleles that he was discharged in violation of section
lOS(c)(l) of the Act. /
The essence of his complaint is that he was
discharged after complaining of a job-related illness which he believed made
it unsafe for him to bar down loos.e rock. He seeks reinstatement and back
pay.
A full hearing on the merits was held in Denver, Colorado, following
which both parties submitted briefs.

REVIEW AND DISCUSSION OF
THE EVIDENCE
I

The undisputed evidence shows that complainant Hastings, a miner in
respondent's underground uranium mine, was discharged by respondent at the
end of his work shift on April 30, 1982. According to Hastings' testimony,
the series of events leading to his discharge began on April 27, 1982, when
he entered an area filled with blasting smoke and fumes out of concern for
Richard Milligan, his shifter, who had walked into the area earlier and had
not reappeared within two or three minutes. Hastings asserted that the smoke
generated by the explosive used had a reputation for causing pneumonia-like
lung symptoms. Milligan wore no respirator when he entered the smoke,
according to Hastings, but Hastings did wear one. Hastings urged Milligan to
come out, and Milligan obliged him. Hastings acknowledged that Milligan
appeared "normal," but claimed that he, Hastings, was coughing.

1/

Section lOS(c)(l) provides:
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 mine.rs 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 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 ~r because
such miner, representative of miners or applicant for employment has
instituted or caused to be instituted any proceeding under or related to
this Act or has testified or is about to testify in any 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.

1048

That night, according to Hastings, he experienced fever, nausea and
coughing. The following day he reported to work with "more or less the
effects of a cold." . He mentioned an earache and "a bad sore throat." Early
in his shift on the morning of April 28, he testified, he complained to his
mining partner, Herbert Rowe, of feeling ill, and Rowe advised him to go
home. His sore throat was mild at that time, but he had developed extreme ·
dizziness and Rowe was afraid for their mutual safety if he tried to work in
that condition. Rowe, Hastings testified, advised him that he was protected
by the MSHA rules under such circumstances.
Hastings further testified that he told his shifter, Milligan, when
Milligan arrived at the work area, that he was too sick to work safely. He
also testified that he mentioned to Milligan that his illness resulted from
the smoke he breathed the day before. The conversation also touched on
Hastings' accumulation of penalty points for prior absences. According to
Hastings, he told Milligan he couldn't get "points for this one." Milligan,
he asserted, disagreed, saying, "Don't bet on it."
Hastings thereupon left for home. On the following day he saw a
physician who made a diagnosis of "pharyngitis" and prescribed an antibiotic.
He also did a throat culture which later proved negative for streptococcus.
On April 29, Hastings called the guard shack to report that he would not
report to work that day because of continuing illness. On April 30, 1982, he
returned. At the end of his shift on that day he received a discharge
notice. It was dated April 29, but the parties stipulate that it was
effective at the end of the April 30 workday. Hastings had worked for Cotter
since April 6, 1981. He protested the discharge to Marv Murray, the mine
superintendent, contending, he testified, that the absence should have been
excused. Murray, according to Hastings, was only interested in counting
points and told him the discharge was automatic and that he could not make an
exception, especially since others had been discharged on the same basis.
Thereafter, Hastings testified, he filed a grievance through the union,
and a complaint with MSHA. The record discloses that the grievance complaint
was unsuccessful, and that MSHA refused to prosecute the complaint before
this Commission.
Herbert Rowe, Hastings' mining partner, testified in Hastings' behalf.
His testimony on the events at the mine on April 27 and 28 generally
supported that of Hastings. Rowe was unable, however, to give more than
vague support to Hastings' testimony about the substance of Hastings'
conversation with Milligan. Specifically, he was unable to say that
Hastings ever mentioned more than that he was sick and had to go home.
He could not substantiate, though he was present during the April 28
conversation, that Hastings ever mentioned that the smoke incident on the
April 27 was the cause of his illness.

1048

II

Cotter based its defenses upon a straightforward denial that Hastings'
discharge had any relationship to a safety complaint. According to Cotter,
complainant's departure from work on April 28 was treated as an unexcused
absence. Cotter's only witness, Duane Dughman, its vice president for
administration, testified that he was familiar with the circumstances leading
to Hastings' discharge, and made the final decision himself. It was based,
he asserted, upon excessive absenteeism, and done in accordance with the
company's published disciplinary policy which had been in effect since
November of 1980. As described in Dughman's testimony, and set forth in
respondent's exhibit 1, this policy provided for progressive discipline for
"chargeable" absences. Absences for non-job-related illnesses or injuries
were chargeable, the witness explained, hut each period of verified illness
was considered a single incident, irrespective of the number of days
involved. (Absences for death in the family, union business, weather,
industrial injuries, etc., "non-chargeable.") Also, miners could, through
good attendance, accumulate credits against chargeable absences.
Sanctions, Dughman asserted, were applied progressively, connnencing with
warning, advancing through suspensions, and ending with outright termination.
The testimony and disciplinary rules also explained an elaborate penalty
point system with specific numbers of points allowable to each offense. When
points reached 100, discharge was automatic. These were computed over a six
months "moving period" so that no miner accumulated points indefinitely;
those over six months old were stricken from the work record.
Dughman testified that in the six months preceding the April 28
incident, Hastings had accrued six chargeable absences and one tardiness
violation. Cotter then introduced, through Dughman, copies of disciplinary
and suspension notices issued to Hastings reflecting those violations. None
of these, according to the witness, were appealed or challenged by Hastings.
He further testified that as of April 28, a further chargeable absence meant
an automatic termination, which he approved. The discharge was taken through
the grieyance procedure by the union. A copy of the arbitrator's decision
finding a good cause discharge was introduced. (Respondent's exhibit 10).
Likewise, a Colorado referee's decision granting only reduced unemployment
benefits for complainant was introduced. (Respondent's exhibit 11.) The
referee found insufficient proof that the discharge was for job-related
illness.
Dughman also testified that the operator had a well publicized policy
requiring the filing of reports of job-related illness or injury on a
readily available form. Hastings, he declared, had never filed one. He
further testified that Hastings had not filed for reimbursement of the
physician's fee for his examination and treatment on April 29. These
services, he said, would have been eligible for workman's compensation
paymez:it had they been for a job related illness or injury. Also, according
to Dughman, Cotter had a temporary injury pay policy which would have paid
benefits for on-the-job illness, but Hastings never made a request for
payment.

1050

Finally, Dughman maintained that at the time he approved the discharge
neither he nor any of the company officials with whom he conferred had any
knowledge that Hastings' illness was, or was alleged to be, job-connected.
Complainant disputed none of the fundamental facts revealed in Dughman's
testimony. He conceded the previous absences, disciplinary notices and
suspensions, and the adverse point totals. He did, however, resist any inference that his failure to file an accident report or apply for the various
benefits for job-related illness showed that he did not believe his injury
was caused by smoke inhalation. He took no such steps, he maintained,
because he was discharged as soon as he returned to work on April 30, and had
no opportunity for filings (Tr. 52).
III
Upon the record before me, I must conclude that complainant has failed
to prove that respondent discharged him because he engaged in protected
activity under the Act. It is now well settled that the Act extends
protection to miners who refuse to work under conditions they believe to be
unsafe or unhealthful, so long as that belief is reasonable and held in good
faith. Secretary of Labor ex rel. Pasula v. Consolidation Coal Company, 2
FMSHRC 2786 (1980), rev'd on other grounds; Consolidation Coal Company v.
Marshall, 663 F. 2d 1211 (3rd Cir. 1981); Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981).
The instant case, however, does not present the common situation where a
miner refuses a work assignment because of what he perceives to be unsafe or
unhealthful condition or practice in the mine. Here, in a sense, Mr.
Hastings perceived his own physical condition to be the hazard. He contends
that he is protected against discharge because his physical symptoms made it
dangerous for him to bar down loose rock. Presumably, he would have undertaken the task as a matter of routine had he felt well.
The discrimination provisions of the Act are silent, of course, upon the
issue of illness or temporary physical impairment as an element in a miner's
decision to refuse to work. Clearly, however, we need not linger over any
notion that sickness or injury, without more, are encompassed within the
protective intendments of the Congress. Nothing in the language of section
105 suggests that the miner who is ill or otherwise unfit to perform the
duties ordinarily associated with his position may present himself for work

1051

and then refuse assigned tasks with impugnity because his impairment renders
their performance unsafe. '!:_!
Complainant, indeed, appears to make no such contention. In his posttrial brief his able representative stresses the alleged occupational origin
of Mr. Hastings' symptoms of April 28. The suggestion is that a refusal to
work based u.pon a miner's safety concerns growing out of a partial incapacity
because of a~ occupational illness must fall within the ambit of the Act's
protection. / The argument is summarized at page five of the brief in
this statement:
The facts are that the complainant was discharged because he
became ill as a direct result of being exposed to unhealthful
conditions while removing a fellow workman from the contaminated
area.
Had it not been necessary for Hastings to retrieve his shifter from the
smoke-filled blasting area, the argument goes, he would not have been too ill
to safely bar down rock. Since Cotter is responsible for safety in the mine,
the argument continues, the shifter's act in entering the shot area before
the air had cleared - an act violative of company safety policy - was
attributable to the company, and Hasting's rescue effort was to have been
anticipated. Therefore, Hastings inability to work safely on April 28th took
on the character of a protected activity.
The legal question posed by the argument need not be decided here
because complainant has failed to present evidence sufficient to establish
the necessary factual predicate: that his symptoms on April 28, 1982 were
caused by entering the shot area. I must reach that conclusion for several
reasons.
2/ The Commission, so far as I know, has never entertained the question.
Bryant v. Clinchfield Coal Company, 4 FMSHRC 1380 (1982), however, Judge
Kennedy made what I consider to be a sound general statement of the law:

In

Any claim of protected activity that is not grounded on
an plleged violation of a health or safety standard or which
does not result from some hazardous condition or practice existing in the mine environment for which an operator is responsible falls without the penumbra of the statute ••••
I do not believe a miner can, consistent with the good
faith, reasonable belief requirement, present himself as willing and able to work ••• and at the same time claim a protected
right to refuse that work because of his impaired physical condition ••••
]_/ In Eldridge v. Sunfire Coal Company, 5 FMSHRC 408 (1983), Judge Koutras
held that a miner's refusal to work an extra shift out of fear of exhaustion
and fatigue was a reasonable, good faith, safety-related act, entitling him
to a claim of protected activity under the statute. See also Bryant v.
Clinchfield Coal Company, supra, note 45 at 1422., in which it is postulated
that a job-related injury or illness adversely affecting a miner's capacity
to work safely "may well justify a refusal to work."

1052

First, there was no evidence that the shifter, Milligan, who entered the
smoky area without a respirator, suffered any ill effects. Hastings and Rowe
conceded that Milligan showed none after he emerged from the smoke. The
undisputed record shows that he was at work on the following day. Hastings,
on the other hand, wore a respirator (though he did question whether he had a
tight fit).
Second, if Hastings was convinced that ~is symptoms and subsequent
absence from work were attributable to smoke exposure on the job, it is
noteworthy that he neither filed an accident report with Cotter (Tr. 68), nor
a workman's compensation claim for payment of his physician's fee (Tr. 87),
nor a claim for temporary injury pay for the days he missed work, a benefit
offered by Cotter. Such actions would have been consistent with belief in a
job-related respiratory condition. Nothing in the record suggests that these
steps could not have been taken after his discharge.
Third, the objective medical data, to the extent such data were
introduced at trial, failed to support Hastings' position. The physician's
billing (exhibit C-1) shows the diagnosis as "pharyngitis/' a general term
for irritation or inflammation of the pharynx. Hastings urges that since a
throat culture was negative for streptococcal infection, his throat problem
could not have been caused by a "germ," and was therefore the product of the
smoke inhalation. The assertion is too broad. Nothing of record suggests
that laboratory studies were done to rule out an infective process attributable to other microorganisms including, for example, the common cold virus
or an influenza virus. Neither is there any indication that the treating
physician ever departed from his highly generalized and undifferentiated
initial diagnosis of pharyngitis. Had he ever concluded that complainant's
condition was work-related, that opinion would likely have been made known at
the hearing.
Fourth, evidence that Hastings actually informed his shifter, Milligan,
that he was not only ill, but suffering from a work-related illness, is at
best weak and uncertain. Had Hastings believed on April 28th that his
illness was job-related, it is likely that he would have stressed that belief
to his supervisor. Complainant's witness Rowe testified at one point that
Hastings' "total conversation" with shifter Milligan was that "he was sick
and going home" (Tr. 19). Later, he testified that he "believed" safety was
mentioned (Tr. 25). Then he summarized the Hastings-Milligan converstion this way:
Basically, Mr. Hastings' told Mr. Milligan that he was not well.
He ·was a hazard to himself anq to me; that he was going home. Mr.
Milligan stated, "you will probably lose your job over this." He
says, "I'm not telling you to go home and I'm not telling you to
stay. You have to make the decision." [Tr. 25).
When asked pointedly if Hastings told Milligan that his illness was caused by
blasting smoke, he replied "I honestly don't remember" (Tr. 25).

1053

Hastings did testify that he informed Milligan, as his immediate supervisor, that he was ill because of the blasting smoke (Tr. 33, 105). The
force of this testimony is diminished, however, by the fact that his recitals
of the basis for his complaint made in the earlier stages of the case omit
any mention of the smoke incident, or job-related illness generally. His
original complaint filed with MSHA mentions only that he was ill with
vertigo, earache, and a sore throat. His separate complaint before this
Commission, filed three months later, relates the same symptoms with no
reference to cause. Similarly, as brought out in cross examination, the
interview statement to the MSHA investigator, which Hastings reviewed and
edited, was silent on the smoke matter. He acknowledged that he responded to
the investigator's question about the content of his conversation with
Milligan with the statement, "Oh, yeah I told him I' was sick and that I had
to get out." (Tr. 54, 57). Hastings explains this by asserting that he
mentioned the smoke incident to the inve$tigator, but that in the recorded
and transcribed interview the investigator asked no questions about it (Tr.
54). He also spoke of "not introducing at that stage what happened on 4/27."
(Emphasis- added.)(Tr. 57.) Concerning the lack of reference to the smoke
~atter in his two complaints he testified:" ••• in these complaints I'm
trying to cite the article under the Act that would cover such activity as
being absent on 4/28 and 4/29/82" (Tr. 57). Despite these explanations, the
reasonable inference is that there was, at the very least, a marked shift in
emphasis between the time of discharge and the time of trial from the mere
fact of illness to a theory of job-caused illness.
Fifth, I note that in two adjudications prior to this one, complainant
failed to convince the triers-of-fact that the illness occasioning his
absence and consequent discharge was job-related. On August 13, 1982, a
referee for the State of Colorado, ruling on an unemployment benefits claim,
held that complainant had not established that his illness was caused "by
conditions on his job." (Exhibit R-11.) Likewise, on September 15, 1982,
the arbitrator who heard .Hastings' complaint under the labor agreement
between Cotter and the Oil, Chemical and Atomic Workers Local No. 2-947 found
that the evidence did not establish "an occupation-related illness."
(Exhibit R-10 at 9.) These collateral determinations carry no great weight
in this present case, but warrant mention in that the referee and arbitrator,
confronted with the same issue as this judge, also found the miner's evidence
insufficient.

IV
In summary, I am convinced that complainant was ill on April 27 and
April 28, 1982, as he contends. I am further convinced that he told his
immediate supervisor that he was too ill to work. I am not convinced,
however, that complainant's evidence showed that his illness was caused by
smoke inhalation. The previously listed weaknesses in complainant's proofs,
considered singly, could perhaps be explained away; taken together, however,
they effectively undercut the credibility of the claim. For the reasons
discussed earlier, absent a job-related cause of his illness, Mr. Hastings
can make no case that his refusal to work was reasonable, and therefore a
protected activity. No $ensible reading of the Act or its legislative
history permits an inference that its anti-discrimination provisions were
intended to supplant the customary ways in which employers and employees
settle questions concerning illness and sick leave policy where the illness
is not work-related. These matters remain a matter of management discretion,
as tempered by ~he collective bargaining process.

There is a further difficulty with complainant's position. Section
105(c) plainly requires that protected activity claims be founded upon a
safety complaint made to the operator. !!:_/ Safety concerns held privately
by a miner, in other words, can SGarcely furnish a discriminatory motive for
discharge. Since I hold that an illness or injury, not acquired in a work
situation, cannot qualify as a basis for safety-related discharge under the
Act, it follows that a complaint by a miner o~ incapacitation due to such a
condition cannot stand as a safety complaint, whether he speaks of it in
terms of safety or not.
The earlier discussion in this decision concerning Hastings' April 28th
illness dealt with the dual questions of whether the miner's illness was in
fact job-related, and whether at that time he believed it to be job-related.
As noted there, I did not find persuasive proofs that he conveyed to
Milligan, his supervisor, a belief that his illness was due to inhalation of
blasting smoke. Those same reservations about the content of his dialogue
with Milligan are relevant to the question of whether a complaint was
registered. Since respondent failed to sustain his burden of demonstrating
that a meaningful complaint was made, his claim of protected activity must
fail on that separate ground, as well. Any colorable complaint arising from
a claim of illness must include. an assertion or notice in some form that the
illness was job-connected.

v
Based upon the findings that (1) complainant's illness was not shown to
be job-related, and ( 2) that no safety related complaint co·gnizable under the
Act was lodged with the operator, I conclude that Mr. Hastings was not
discharged for engaging in protected activity •

.

QRDER
Accordingly, this complaint of discrimination is ORDERED dismissed with
prejudice.

Law Judge
Distribution:
Mr. Earl D. Dungan, Representative
International Representative, Oil, -chemical and Atomic Workers Int'l. Union
425 East 10th Street, Leadville, Colorado 80461
Barry D. Lindgren, Esq.
Mountain States Employers Council, Inc.
1790 Logan Street, P.O. Box 539, Denver, Colorado

80201

4/ Taylor Adkins et al v. Deskins Branch Coal Company, 2 FMSHRC 2803 (1980)

1055

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

JUN

9 1983

)

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

)
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CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. CENT 79-160-M

)

v.

)
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EL PASO ROCK QUARRIES, INC.,

)
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Respondent.

)
)

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

Appearances:
Barbara Heptig, Esq., Office of
James E. White, Regional Solicitor
United States Department of Labor
Dallas, Texas 75202
For the Petitioner

•

Richard Mendoza, Esq.
El Paso Rock Quarries
El Paso, Texas 79925
For the Respondent

•

Before: Judge John J. Morris
DECISION
The Secretary of Labor, on behalf of the Mine Safety and Health
Administration, (MSHA), charges respondent, El Paso Rock Quarries, Inc.,
with violating three safety regulations promulgated under the Federal Mine
Safety and Health Act, 30 u.s.c. 801 ~seq.
Paso,

After notice to the parties a hearing on the merits was held in El
Te~as on November 9, 1982.
The parties did not file post trial briefs.
Issues

The issues are whether respondent violated the regulations and, if so,
what penalties are appropriate.

1056

Citation 160837
This citation alleges a violation of Title 30, Code of Federal
Regulations, Section 56.3-50. !_;
Petitioner's uncontroverted evidence establishes the following facts:
Earl B. Diggs, an MSHA inspector experienced in mining, issued this
citation when he learned that two miners were working on a pile of rocks some
50 yards square (Tr. 7, 8, 10-12, 35, Exhibit P3). The men on the boulders
lacked a sound footing while holding a 65 pound air drill (Tr. 10-11). The
boulders ranged in size between two and a half feet to seven feet in diameter
(Tr. 10-11). If the boulders shifted they could fall and crush the miners
( Tr • 12 , 13) •
One or two weeks later it was found the condition had been corrected.
The boulders had been separated and blocked to prevent movement. Drilling of
the boulders would take place on the ground (Tr. 13).
The foregoing facts establish a violation of Section 56.3-50.
citation should be affirmed.

The

Citation 160839
This citation alleges a violation of Title 30, Code of Federal
Regulations, Section 56.18-10. '!_!
Petitioner's uncontroverted evidence establishes the following facts:
Don McCoy, in charge of respondent's quarry, advised Inspector Diggs that
at the time there were no supervisors trained in first aid (Tr. 14, Exhibit
P4). Further, respondent's employees hadn't been offered first aid training
(Tr. 14) •

1/

The cited standard provides as follows:

56.3-50 Mandatory. Material, other than hanging material, to be broken by
secondary drilling and blasting, or by any other method shall be positioned or
blocked to prevent hazardous movement before persons connnence breaking
operations. Persons who perform those operations shall work from a location
where, if movement of material occurs, those persons will not be endangered.
2/ The cited standard provides as follows:
56.18-10 Mandatory. Selected supervisors shall be trained in first aid.
First aid training shall be made available to all interested employees.

1057

On a prior inspection MSHA had offered such training, at no cost, to
respondent (Tr. 15). Forty miners were affected by this citation (Tr. 16).
The foregoing facts establish a violation of Section 56.18-10.
citation should be affirmed.

The

Citation 160840
This citation alleges a violation of Title 30, Code of Federal
Regulations, Section 56.5-3. 3;
Petitioner's uncontroverted evidence establishes the following facts:
Inspector Diggs observed dust around the collar of a drill hole. Two
miners were drilling without water. Dust was flying (Tr. 16, 17, 18).
"Collared" as used in the regulation means that when starting to dril~
water is added up to the steel. This causes the hole to harden and round out.
(Tr. 17).
The equipment available for dust control wasn't fit for use. Hoses in
the water tank had been disconnected and there was no water in the tank (Tr.
17).
It is necessary to drill wet to keep down the dust. This prevents miners
from being exposed to possible silicosis caused by exposure to silica dust
(Tr. 1 7).
There were no dust control measures at this site although there are three
types of dust control measures ·available (Tr. 18).
The foregoing facts establish a violation of the regulation.
citation should be affirmed.

The

Civil Penalties
Petitioner proposes the following civil penalties for the citations:
Cit at ion

3/

16.0837
160839
160840

$275
445
305

The cited section provides as follows:

56.5-3 Mandatory. Holes shall be collared and drilled wet, or other
efficient dust control measures shall be used when drilling nonwater-soluble
material. Efficient dust control measures shall be used when drilling
water-soluble ·materials.

1058

The mandate to assess civil penalties is contained 1n Section llO(i) [now
30 U.S.C. 820(i)] of the Act. It provides:
(i) The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil monetary
penalties, the Commission shall consider the operator's history
of previous violations, the appropriateness of such penalty to
the size of the business of the operator charged, whether the
operator was negligent, the effect on the operator's ability
to continue in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation. In
proposing civil penalties under this Act, the Secretary may rely
upon a summary review of the information available to him and
shall not be required to make findings of fact concerning the
above factors.
Concerning prior history: I find respondent has an extensive adverse
history. The computer printout, admissible as a business as well as a public
record, indicates respondent was assessed 326 violations as a result of 30
inspections (Tr. 19-27, Exhibit P2). At the request of the Petitioner the
Judge further took official notice of prior cases involving these parties.
These cases were docketed as Denver 79-139-PM; Denver 79-140-PM; Denver
79-176-PM.
Concerning size: respondent is a large operator. This is indicated by
the evidence that there were 174,470.4 annual man hours expended at this
quarry (Answers to Interrogatory No. 4).
Concerning negligence: These violative conditions should clearly have
been known to the operator.
Concerning the effect on operator's ability to continue 1n business: This
is essentially an affirmative issue to be established by the operator.
Buffalo Mining Co., 2 IBMA 226 (1973).
Concerning gravity: The gravity is apparent and severe in two of these
citations. The first aid training citation could, under some circumstances,
by equally severe.
Concerning good faith:
violative conditions.

The record establishes that respondent abated the

After considering all of the statutory criteria I conclude that the
penalties proposed by petitioner are appropriate.
Based on the foregoing findings of fact and conclusions of law I enter
the following:

105!)

ORDER
1.

Citations 160837, 160839, and 160840 are affirmed.

2.

The proposed civil penalties of $275, $445, and $305 are affirmed.

3. Respondent is ordered to pay the sum of $1,025 within 40 days of the
date of this order.

Distribution:
Barbara G. Heptig, Esq.
Office of the Solicitor
United States Department of Labor
515 Griffin Square, Suite 501
Dallas, Texas 75202
Richard Mendoza, Esq.
5995 Gateway West, Suite 242
El Paso, Texas 79925

1060

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

JUN

9 1983

Civil Penalty Proceeding

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

Docket No: CENT 81-248
A/O No: 41-02876-03012 V

v.

Little Bull Creek Mine

ZEUS CORPORATION,
Respondent
SECRETARY OF LABOR, et al
Petitioner

Civil Penalty Proceeding
Docket No: CENT 81-252
A/O No: 41-02876-03011 V

v.
AMISTAD FUEL CORPORATION,
Respondent
DECISION
Appearance:

George Collins, Esq., Office of the Solicitor, U.S.
Department of Labor, 555 Griffin Square Building,
Dallas, TX 75202
David M. Williams, Esq., P.O.B. 242, San Saba, TX 76877

Before:

Judge Moore

At the hearing the parties agreed that under the Commission's
National Gypsum decision, 3 FMSHRC 822 (1981) the two violations involved
in the citations in these cases would not be considered significant and
substantial. Consequently, the citations would not have triggered the
special assessments procedure if they had been issued after that decision.
The narr~tive statements accompanying the special assessments are
not contained in the file but the attorneys, with the obvious agreement
of the inspector explained. the situation. This was an experimental mine
in west Texas and the company was unable to obtain the certification of
electrical inspectors to make the examinations required by 30 C.F.R.
77.502-2. The examinations were in fact made by competent electricians
but none had yet met the definition of "qualified person" contained in
30 C.F.R. 77.103.
The special assessments were $1,000 for each violation. The parties
proposed that I modify the citations to eliminate the significant and
substantial findings, affirm the citations as modified and assess a
penalty of $20 for each violation. In the interest of uniformity of

1061

treatment, inasmuch as that is the way the matter would be handled if
the same violations were discovered today, I agreed to accept the proposal.
The two citations are therefore modified to eliminate the significant
and substantial findings and as modified they are affirmed. As to the
civil penalty, I find there was no hazard, that the history of prior
violations was small and that there was good faith abatement. In the
circumstances I find no negligence and although the record does not
contain the size of the company or operation, I do not believe that
that criterion matters in the circumstances of this case.
Respondents are accordingly ORDERED to pay a civil penalty to MSHA
in the total sum of $40. The payment is to be made within 30 days.

~ t !fl;~{},,
Charles C. Moore, Jr.,
Administrative Law Judge
Distribution: Certified Mail
George Collins, Esq., Office of the Solicitor, U.S. Department
of Labor, 555 Griffin Square Building, Dallas, TX 75202
David M. Williams, Esq.,

/db

P.O.B. 242, San Saba,

1062

TX

76877

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

{703) 756-6210/11 /12

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

Civil Penalty Proceedings
Docket No. LAKE 81-190-M
A.O. No. 11-02051-05011-V
Docket No. LAKE 82-65-M
A.O. No. 11-02051-05014-A

v.
TAMMS CO, INC. ,
HAROLD SCHMARJE,
Respondeµits

Tammsco Company Mill

DECISIONS
Appearances:

J. Philip Smith, Trial Attorney, U.S. Department of Labor,
Arlington, Va., for the petitioner; Malachy J. Coghlan, Esquire,
Chicago, _Illinois, for the respondents.

Before:

Judge Koutras
Statement of the Proceedings

These are consolidated civil penalty proceedings under sections llO(a) '
and llO(c) of the Federal Mine Safety and Health Act of 1977 ("the Act"),
30 U.S.C. §§ 820(a) and 820(c).
In Docket No. LAKE 81-190-M, Respondent Tammsco, Incorporated, the
operator of the Tammsco Company Mill, a silica-producing plant located
in Tamms, Alexander County, Illinois, is charged under section llO(a)
of the Act with violating the mandatory safety standard under 30 CFR
§ 57.5-5.
On May 7, 1981, MSHA Inspector George LaLumondiere issued a section
104(d)(l) Citation No. ·0501241 to Tammsco, citing
an alleged violation
of mandatory standard 30 CFR 57.5-5, and the condition or practice described
on the face of the citation states as follows:
The Ruff Buff bagging machine was not hooked
into the dust collection system of the mill.
The dust control plan submitted on 4-14-80
states that all bag machines will have dust
collectors as engineering co~trols to control
silica dust. This bagger is in use and a
pallet of Ruff Buff was partially loaded.
This is an unwarrantable failure.

1063

In Docket No. LAKE 82-65-M, Respondent Harold Schmarje, the
Tammsco Company plant manager, is charged under section llO(c) of
the Act with knowingly authorizing, ordering, or carrying out the
aforesaid violation as an agent of the corporate operator, Tammsco.
A consolidated hearing was conducted in these proceedings in
Chicago, Illinois, October 6-7, 1982, and the parties appeared and
participated fully therein. By agreement of counsel, posthearing
depositions of several additional witnesses who did not testify at
the hearing were taken in Evansville, Indiana, November 3-4, 1982.
The parties submitted posthearing briefs and proposed findings and
conclusions, and all of the arguments presented have been considered by
me in the course of these decisions.
Issues
1. Whether Respondent Tammsco, Inc., the corporate mine operator,
committed a violation of 30 CFR § 57.5-5 under section llO(a) of the
Act, and, if so, the appropriate civil penalty which should be assessed
against said operator pursuant to section llO(i) of the Act.
2. Whether Respondent Harold Schmarje, acting as an agent
of the corporate mine operator, knowingly authorized, ordered, or
carried out the aforesaid violation under section llO(c) of the Act,
and, if so, the appropriate civil penalty which should be assessed against
him individually pursuant to section llO(a) of the Act.
3. Additional issues raised by the parties are identified and
discussed in the course of these decisions.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801

et~·

2.

Commission Rules, 29 CFR 2700.1 et ~·

3. Sections llO(a) and.llO(c) of the Act. Section llO(a) provides
for assessment of civil penalties against mine operators for violations
of any mandatory safety or health standards, and section llO(c) provides as
follows:
Whenever a corporate operator violates a mandatory
health or safety standard or knowingly violates or
fails or refuses to comply with any order issued
under this Act or any order incorporated in a final
decision issued under this Act, except an order
incorporated in a decision issued under subsection
(a) or section 105(c), any director, officer, or
agent of such corporation who knowingly authorized,
ordered, or carried out such violation, failure,
or refusal shall be subject to the same civil penalties,
fines, and imprisonment that may be imposed upon a
person under subsections (a) artd (d) (emphasis added).

1064

An "agent is defined in Section 3(e) of the Act (30 U.S.C. § 802(e))
to mean "any person charged with responsibility for the operation of
all or part of a coal mine or other mine or the supervision of the miners
in a coal mine or other mine."
4.

30 CFR § 57.5-5 provides in pertinent part as

follo~s:

Control of employee exposure to harmful airborne
contaminants shall be, insofar as feasible, by
prevention of contamination, removal by exhaust
ventilation, or by dilution with uncontaminated
air. However, where accepted engineering control
measures have not been developed or when necessary
by the nature of work involved (for example, while
establishing controls or occasional entry into
hazardous atmospheres to perform maintenance or
investigation), employees may work for reasonable
periods of time in concentrations of airborne contaminants exceeding permissible levels if they are
protected by appropriate respiratory protective
equipment.
Testimony and evidence adduced by the petitioner
Max B. Slade, Acting Chief,Division of Health, Metal and Nonmetal
Section, MSHA, Arlington, Virginia, testified as to his background and
experience (exhibit P-1), and confirmed that he was familiar with the
respondent's mining operation. He first became aware of silica dust
problems at the plant in 1976, and he was concerned about the company's
noncompliance record, as well as its advertising claims that its product
was an an~rphous type silica which should be of no concern to MSHA
as a health problem. Amorphous silica is not as harmful as crystalline
silica. As a result of the company's claims, and since MSHA's analysis
indicated that the silica was crystalline, Mr. Slade requested NIOSH
to conduct a health hazard evaluation of the workers at the plant to
determine· if the silica was in fact amorphous and whether it was harmful,
and he did so by letter received by NIOSH on April 18, 1979 (exhibit
P-3) (Tr. 20-28).
In response to questions concerning exhibit P-2, a computer printout depicting the prior history of section 57.5-5 citations at the plant,
Mr. Slade agreed that many of those listed are in fact one citation in
which the abatement time had been extended (Tr. 30). In general, many
of the citations address specific pieces of equipment or job descriptions
of miners, and that the equipment or individual miner is subjected to
dust exposure tests as required by Part 57 of the regulations. Dust samples
obtained through these tests are submitted to MSHA's analytical lab in
Denver, Colorado, and if the results show that an operator is out of
compliance a citation will issue and the operator would be expected to
bring the airborne contaminants within the allowable limit (Tr. 32).

1065

In response to a question as to what caused MSHA to initiate
a NIOSH survey of the plant in question, Mr. Slade responded as
follows (Tr. 33-34):
THE WITNESS: The company had sent us numerous
correspondence, pictures, microscopic analysis
of their product, claimihg that it w~s amorphous
silica and should not be regulated under the silica
dust standard, that it should be regulated under
the amorphous dust standard. Our individual
laboratory showed that it was crystalline silica
and we needed some cooperation from NIOSH.to
verify this fact~
JUDGE KOUTRAS: Now, was this communication from
the respondent, from the company in this case,
in the context of defenses to each of these
citations that were issued against the company,
or is it in connection with some other general-THE WITNESS: Usually some other general correspondence,
just trying to make an agreement with us that we
would not treat them as a crystalline silica operation
but we would allow them a more liberal TLV, that
we would allow them to have more dust contamination
in the atmosphere than is allowed with crystalline
silica.
Cathy Morring, Industrial Hygienist, NIOSH, Morgantown, West Virginia,
testified as to her background, experience, and expertise as reflected in
the report which she co-authored, exhibit P-5, and she also confirmed that
exhibit P-3 is a copy of the letter from Mr. Slade requesting NIOSH's
technical assistance. She confirmed that NIOSH conducted a dust survey
at the plant, and this included a "walk-through" survey in May 1979, and
the company physician and union were contacted in connection with the
survey. An "industrial hygiene medical survey" of the current and exemployees was conducted in July 1979, and in August 1979, the workers
surveyed were notified of the results of the survey. In September 1979,
the preliminary interim medical reports findings were published, and
the final technical assistance report was presented to MSHA and the company
in March 1980, (exhibit P-5, Tr. 37-41). Ms. Morring confirmed that
she and Dr. Banks, whose name appears on the report, conducted the survey
together and she co-authored it. Dr. Banks is no longer with NIOSH, and
is in private medical practice in New Orleans (Tr. 42). She explained
the survey procedure as follows (Tr. 45-46):
THE WITNESS: The procedure that we go by, we
receive a written request from MSHA to provide
technical assistance, from there on it's our ballgame. We contacted the president of the company,

1066

the local union, the company physician, to let
them know we were coming, that this is the type
of info-rmation we wanted to look at, we would
like to take a walk-through survey of the facility,
we'd like to look at their medical records, their
environmental sampling records, compliance type
records, so we can get an idea of the history of
the facility. From that determination we can
plan our strategy as to how we should investigate
the plant to find out if there was a potential
health hazard existing in the facility, so that
we come back in July to take environmental
sampling to determine the exposures that the
workers have at· that date and time. We also
provided chest X-rays and under informed consent
to all workers. We had a few refusals. And we also
contacted ex-workers because of the seriousness
of the disease in question.
The information is then, all prior identifiers
is taken out of this information and reported back
to the company, to the union, to the regional OSHA
and MSHA offices, and individual copies to people
that participated in the surveys are given back
their medical findings and referrals from our
·physicians that say, "You need to seek further
attention", or "from the findings we found there
seems to be no problem."
JUDGE KOUTRAS: And I take it the reconnnendations
that are contained in this report at Page 9 are
recommendations to the plant, to the company. Is
there any followup done on this?
THE WITNESS: We make our reconnnendations and at
a later period of time the Division Director,
Dr. Merchant of this facility, offered the assistance
of our control technology group to assist these
companies in improving their conditions.
Ms. Morring testified as to some of her findings, as follows (Tr. 53-55):

Q. Now, let me just ask you this question specifically
before I a~k you to discuss the findings in the report.
Did you find in your survey the silica at this particular
plant to be of the amorphous or the crystalline type?
A.

It is 98 to 100 per cent crystalline structure.

Q. Now, I would like you to at this time discuss very
briefly your findings in that report and your conclusions?

1067

Q.

Can you explain the difference between the
two types of silica, what the effect of them is?

A. Amorphous silica has no crystalline structure.
It is considered to be less toxic and its degree
· of toxicity is under question right now in the scientific
field. Crystalline silica has crystalline structure.
This particular product is microcrystalline, meaning
that, where the name amorphous came from if you look
at an electronmicrograph you will see an amorphous
structure, a structure that has no definite size of
shape; if you look closer its an amorphous conglomerate of
crystals, so it's truly a microcrystalline quartz.
JUDGE KOUTRAS: Now, from a layman's point of. view,
the amorphous type is something that is not likely
to adhere to-THE WITNESS (interrupting): With silicosis the exact
way it causes, silica causes the disease is still
unknown, there are several theories on it. It is
accepted fact that amorphous silica is not as toxic
as crystalline silica and there have been suggestions
in the literature that microcrystalline is more toxic
than the crystalline structure.
JUDGE KOUTRAS: So, between the two the amorpho~s
is the lesser of two evils, if I could characterize
them, take license with that type of characterization?
THE WITNESS:

Right.

Q. Would it also be fair to say that amorphous is
less harmful?
A.

Sarne thing, less harmful, less toxic.

Q. And the micro, did I understand you to say that
according to your survey this was rnicrocrystalline,
which is even worse than crystalline by itself?
A. That hasn't been proven yet. It is the suggestion
in other studies that microcrystalline may be more
fibrogenic than the regular crystalline.
And, at Tr. 56-58; 59-60:
A. Our first conclusion is that NIOSH considered
the situation down at Tarnrnsco to be of imminent danger
status, basing it upon the health hazard present,

1068

exposure to health hazard present can cause
irreversible harm and can shorten life. We feel
there's a very serious hazard.
JUDGE KOUTRAS:

O.K., as of the date of this?

THE WITNESS: As of the date, based on our results
of the day we were there, the 17 workers that we
sampled were over-exposed to free silica according
to the NIOSH recommended standards. Our standards
are not the same as MSHA. ·
JUDGE KOUTRAS: All right, hold it now.
recommended standard?

Your

THE WITNESS: We have a recommended standard of 50
micrograms per cubic meter.
JUDGE KOUTRAS:

Fifty?

THE WITNESS: Micrograms. To compare that with the
NIOSH standard, if you're looking at 100 per cent
quartz, our standard is essentially half of MSHA's
enforceable standard.
JUDGE KOUTRAS: And where is MSHA's enforceable
standard found, do you know?
THE WITNESS: It's confusion, it's a calculation,
if you look on Page 4 -MR. SMITH (interrupting):
we gave you, Your Honor.

Well, that's the TLV

THE WITNESS:

Right, the formulas used for MSHA.

MR. SMITH:

That's Petitioner's P-4, Your Honor.

JUDGE KOUTRAS:

All right?

THE WITNESS: The bottom line to our study is that
27 per cent of the current and ex-workers that we
studied with people that worked greater than one year
in this environment had radiologic evidence of,
radiographic evidence of silicosis. That's seven
people in 26 that we saw; three current workers and
four ex-workers for the overall prevalence of 27 per
cent.
JUDGE KOUTRAS: All right, stop there just a second,
if I may interrupt you.

1069

-

----

·-·----------------·--------.

So, assuming that as of that study they had a
work force of 26 people, three people still on the
job had it?
THE WITNESS: If they had a work force of 26 people,
seven people.
JUDGE KOUTRAS:
ex-workers.
THE WITNESS:

I thought you said some of those were
There were 15 current workers.

JUDGE KOUTRAS: Now, does the study indicate whether
or not, what the length of exposure, whether they
had contact with other industries, other environments,
et cetera, et cetera, is that all accounted for?
THE WITNESS: That's all accounted for in here. We
take a detailed work history to identify a possible
silica exposure and we take radiographic evidence
and pulmonary function studies, so·we were very good
about that.
We also found that one current worker and one ex-worker
had pulmonary massive fibrosis which I'll let Dr. Richards
explain further. It's complicated silicosis, is pnother
term that is used for it, it's a more serious type of
disease progressing where ultimately death is attributed
to heart and respiratory failure. We feel it's a very
serious hazard.

*

*

*

*

*

*

*

*

*

*

*

*

Q. Let me interrupt you right there, since His Honor
brought up this point. Assuming that the product has
not changed and they're still producing the same silica
there at this plant that they were in 1979, is this in
fact a harmful airborne contaminant?
A.

Yes, it can be with appropriate levels.

On cross-examination, Ms. Morring conceded that the report she
prepared, exhibit P-5, containing a number 79-104107, and exhibit R-1,
which is a draft sent to the company and the union for review and possible
technical changes, and is numbered 79104, are different in that the latter
does not contain an appendix which refers to dust control improvements
through use of baggers with shrouds or hoods (Tr. 87). She conceded that
the draft report with the appendix included was not submitted to the
company for review (Tr. 88).

1070

Ms. Morring .testified that she was present at the plant during
the sampling survey in question, but only for two shifts on July 23,
over a 24-hour period, and that Dr. Banks stayed for the entire three
days of July 24 through 26 (Tr. 90). She identified other persons who
were present during the survey, and indicated that their names appear
at page 12 of the report (Tr. 91). She confirmed that she has not
returned to the plant since the survey (Tr. 92).
In response to questions concerning exhibit R-2, an American
Industrial Hygiene Association Journal, Vol. 42, dated January 1981,
Ms. Morring confirmed that out of the 27 silica flour producers identified
in Table No. 1 of that publication, two are located in Illinois (Tr. 100).
She also confirmed that out of the 27 locations itemized in the report,
she has surveyed only three, including the respondent's plant (Tr. 101),
and she further confirmed that she would have no reason to know what,
if any, dust control improvements or tests were made· since her survey
of 1979, and stated that "I can only talk about what the conditions
are now and were in 1979, and make judgments on that" (Tr. 110-111).
She elaborated by stating as follows at Tr. 111-112:
JUDGE KOUTRAS: Are you trying to tell me that
on May 7, 1981, when the inspector went in there
and saw the silica dust being admitted into the
atmosphere from this bagging device that did not
have a shroud on it, was as bad as it was in 1979
when you were there?
THE WITNESS: No, I am talking hypothetically as
we were before about the fact that in 1979, if the
situation existed today as it was in 1979 that the
people around that environment would be over exposed.
In response to further questions, Ms. Morring t'estified as follows,
at Tr. 114-124:

Q.

One other question, his Honor mentioned to you
in hypothetical about if you came upon a situation
and the shroud, or hood as I think you refer to it,
was not in place on the bagger machine and given
the same conditions that you saw at the time you
conducted your survey, would it be necessary to take
a sample, let's say, on May 7, 1981, when this
violation was issued, in order to show over-exposure
of the employees who were working in that same area?
A. Well, obviously, from our report you can look
in the. bagging section and they were some of the highest
over-exposed people in the whole facility so from
that statement, also I do know that MSHA conducts a
periodic sampling period several times a year and if
the exposure -- hypothetically, if the exposure, if
you are over-exposed prior to the date you are speaking

1071

of, if conditions are the same and no engineering
controls have been implemented, then you would be
over-exposed at that time as well with this bagging.

Q.

When you say over-exposed you are referring to
the allowable TLV limits?

A.
..

Right.

Ms. Morring, you just mentioned controls and
respirators. When you were at Tamms in July of '79
how mariy different products did they, in fact, make,
do you recall?
Q.

A. No, I don't, I am not sure it is in here. They
had several products and I don't believe it is in
the report.

Q. How much, if any, effort did you make to distinguish
between a product such as rought buff on one end and
a very fine product on the other end, did you take
that into effect?
A. Yes, we took both samples ourselves of some of those
covered products and sent them to a laboratory for
investigation and found out they were all the same quartz
material. We did get a close breakdown on particle
size ourselves.

Q.

Could it have been as many as six products that
they made, seven?

A.

I have that brochure myself.

Q. Then you are prepared to suggest.that in some of
·these products as much as 90 per cent of it is under
5 microns and some of these products it might·be three
microns?
A. Yes, that is possible. In an air-classifying system
you are not going to get 100 per cent classification
of 5 microns, nothing more and nothing less. You are
always going to have--it is going to be the majority
of the material.

Q. Then what we are saying is that it is possible to
have a product which could be--which could have a
percentage diminimus, a very small percentage of
respirable silica. If we take this kind of standard
it is very easy to have and if we take even NIOSH's

1072

standard of 52--incidentally, are we taking 52
standard then it is conceivable, is it not that a
rough buff product would have virtually no respirable
dust, certain rough buff products could have virtually
no respirable dust, would you agree to that?
A. No. No. 1, I have no--we did not sample the rough
buff product ourselves. I have seen laboratory
analysis on the product itself, and I think in any of
these products because of the air classification system
that it viewed that you are going to have it, just
like a bell-shaped curve on normal distribution that
most of the products are going to be as advertised
as far as whatever the micron size is. You are going
to have a percentage of below and a percentage that
is above, as well.

Q.

Do you know what a classifier is, Mr. Morring?

A.

Air classifier?

Q.

Yes.

A. Yes, it separates the particles by their organic
size.

Q.

Is it possible that an air classifier, it can
separate particles so there would be no respirable
particles? Is it possible?
A.

I am not that familiar with the air classifier.

Q. Let me ask you, you are talking about dust controls
and you mention among'others, hoods and respirators.
In your NIOSH report you mention, among others, dust
collectors, vacuum cleaners, preventive maintainence,
monitorizing dust levels, housekeeping, mass sconic spray,
wall and floor enclosures and it seems to me that you
didn't mention specifically a shroud in that report. Do
you recall?
A. We don't refer to it as a shroud, per se, we refer
to it as a hood.

Q.

Are you prepared to say that if we took a shovel
full of this silica dioxide from July of 1979 and put it
in the bagger and put a sampler on it and anot.her identical
bagger and we took a shovel full of this in May 1981 and
put the same sampler on it, that we would come out with
the same results?

1073

A. As far as I know. I think you are asking me,
if the process hasn't changed, if the material
·is the same?

Q.

All of these identical.

A. As far as I know if these things have not changed,
things that would affect the particle size and the
product itself, yes, you would see the same thing.

Q. That they would be the same, a year, two years
later?
A. Yes, I think so. I want to make one clarification
on your last statement about engineering shroud, we
don't say shroud, per se, but in our jargon we do.
We talk about engineering controls, and one of the
engineering controls is ventilation system, i.e.,
shrouds, hoods, ductwork, fans.

*

*

*

*

*

*

*

*

*

*

*

Q. One final question on rough buff sampling, the
particular coarse product that we talked about
classifying. I am handing you what purports to be a
Department of Labor memorandum from a Mr. Hollenbeck-I am sorry·, from a George Weems to a Mr. Hollenbeck,
"subject, particle size distribution analysis of rough
buff product at Tammsco", and ask you to direct your
attention to these micron ranges.
A.

On this 6 per cent.

Right, what does that say? Does that say what
they did, is they took this rough buff product and
they put it through a 325 mesh and everything that was
res1pirable stayed on top and only 6 per cent was under
the screen?

Q.\

A.

No.

Q.

It does not say that?

A. It says they took this p~oduct and put it through
minus 325 mesh screen, which is 44 microns, and 6 per
cent of it passed thro"ugh that screen and 6 per cent of
the bulk product is less than 44 microns. Then they
took that material and put it through a culture counter
and by optically sizing it they got this type of particle
size range.

1074

THE WITNESS: No, 94 per cent. That is 98 per
cent of the 6 per cent is what they consider
respirable.
MR. COGHLAN: So you did, in response to the
Judge's question, indicate that the 94 per cent
that stayed above the screen was not respirable?
THE WITNESS:

Into the lung.

MR. COGHLAN:

Well, was not respirable into the--

THE WITNESS: lt can still be respirable but not
at that 44 micron.
BY MR. SMITH:

Q. But is it the type of respirable material that
we are concerned about in this proce.eding?
A.

It is still toxic material, still silica.

JUDGE KOUTRAS: Let me ask the question another
way. Let's assume you have sampled the material and
found that none of it sifted through and none of it
was respirable according to your definition, would
an operator be subject to a citation under this
particular standard for failure to control airborne,
harmful airborne contaminants?
THE WITNESS:

I can't answer that.

BY MR. SMITH:

Q.

All right, I wanted to ask you this, what happens
to the non-respirable dust after it gets on the floor
under traffic?

A. I mentioned that before, that it is dry and feet
walking, machinery running over it, any type of action
such as that activity, grinds the particles, changes
the particle size and can--the main problem with dust
being on the floor is that- as people move there are air
currents that can become reentrained in the atmosphere.

Q.

Is it as that point no longer non-respirable?

A. Yes, if the particle size is such. It changes
the particle size, it may make it smaller, smaller
particles get into the lungs.

1075

Q.

Isn't that really the heart of the problem?

A.

Right, that is the problem.

Q. And that is very typical at a bagger system if
you don't have the proper controls on it?
A. Sure, because there is someone standing there.
In any plant.

*

*

*

*

*

*

*

*

JUDGE KOUTRAS:

What is rough buff?

THE WITNESS:

One of their products.

JUDGE KOUTRAS:
THE WITNESS:
material.

*

*

*

It is what?
I assume it is an abrasive type of

JUDGE KOUTRAS: I take it that they mine silica and
they process it and they produce five or six different
products from it and rough buff is one of the products?
JUDGE KOUTRAS: When you said you did not sample the
rough buff machine, did you say that the rough buff
was not sampled?
THE WITNESS: In our study I don't know what the products
were at our bagging operations that were bagged that day.
JUDGE KOUTRAS: Let's assume that rough buff was not
one of the products that was sampled during your survey.
What effect would that failure to sample have on whether
or not rough buff, of the type that this inspector cited
in '81, how does that fit in?
THE WITNESS: I think it makes sense to laymen and is
scientifically sound as well, I know that interim samples
periodically were taken as far as I know, other samples
have been out of compliance in the plant almost consistently.
I think there were a few cases where they were in compliance.
The samples were taken on Day 1 and they were out of compliance, on Day 15 no samples were taken and the machine
still operated, there was a visible cloud or puff of this
type of airborne. On Day 30 samples were taken again and
the situation is the same throughout and it is reasonable
to assume that if they took a sample that day the same
situation would be true.
/

1076

JUDGE KOUTRAS: So are you suggesting that if this
particular manufacture, or this particular plant
manufactures six products and that at some time during
the compliance history of this plant MSHA samples
all the products, and assuming no changes, that at
some future date you can assume that that same product
that is airborne would be as harmful as it was the
first time it was subjected to a test?
THE WITNESS: The conditions should not change, yes,
what you.see that day is what you are going to.see
the days around.
JUDGE KOUTRAS: What if this particular manufacturer
manufactures the same six products but only five are
ever subjected, one is not sampled for some reason,
can you come to the same conclusion with respect to
the one product that has not been sampled, ever
sampled?
A. I think you have to use your judgment in that case
and from what I am aware from this situation that there
is evidence of airborne high concentrations, i.e.,
you can see a cloud visibly. Like this is the plant,
it is one room and the conditions are pretty well even
throughout, so you don't have enclosures around--like
say, if you had an enclosure around the bagger would
that be contained there. So that any type of--if that
product was bagged that day and you saw the visible,
physical signs of dust in the air, then I think it is a
good assumption, yes, that the same problem exists and
that people around that and through the building are
being over exposed. It contributes to the overall dust
load.
JUDGE KOUTRAS: Do I get the impression that what NIOSH
is attempting to achieve and what MSHA would like to
achieve here is not so much that this one particular
rough buff bagging machine be addressed but that the
()Verall ventilation in this entire plant, so that would
avoid all these problems, is that what they are trying
to do?
THE WITNESS: What NIOSH would like to see is the workers
not be over exposed to silica dust.
JUDGE KOUTRAS:

In the entire plant?

THE WITNESS: Right, and we are concerned about all those
workers' health.

1077

JUDGE KOUTRAS: Well, in this case, let's assume
that I come to the conclusion that this operator
failed to comply with the standard by not achieving
compliance at this rough buff bagging machine and I
sustain the citation and the violation and fine him
$400 for the violation, how does that cure your overall concern about the rest of the plant?
A. As far as NIOSH is concerned it is until the
levels of the overall plant are brought down to the
limits that have been set by law or by NIOSH recommended
standards we feel there still is a health hazard. We
are hard nosed about that type of thing.
Dr. Thomas B. Richards, Staff Physician, Clinical Investigation
Branch, Division of Respiratory Disease Studies, NIOSH, Morgantown, West
Virginia, testified as to his background and expertise. He identified
a copy of the NIOSH survey report concerning the plant in question,
exhibit P-5, and confirmed that he had read it thoroughly, and testified
as to his ·conclusions concerning the findings made in that report
(Tr. 142-150) .
On cross-examination, Dr. Richards confirmed that he had never visited
the plant in question, and he indicated that his testimony is based on
.his reading of the report, as well as his experience and training, and
"review of the literature" (Tr. 150). He also confirmed that he had done
no actual personal work with silica (Tr. 151).
In response to question concerning silicosis, Dr. Richards testified
as follows (Tr. 152-155):
.

Q. Would you agree with this statement, the common
denominator in all cases of silicosis is the inhalation
of a high concentration of crystalline silica pf
particles less than 10 microns in diameter are respirable,
but the particles most likely to be deposited in the
alveoli spaces in the lung which caused the disease, are
only 1 to 3 microns in diameter. Would you agree with that
statement?
A. Let me rephrase the statement because it has multiple
parts to it. The factors that would lead to silicosis,
no. 1, the type of dust as I tried to explain. There
are several different types of silica dust. No. 2 is
the concentration of dust. No. 3 is the exposure of the
individual and No. 4 is probably an individual factor
because there are some discussion as to whether there
are I guess you would call it like an egg-shell worker,
a ~erson who has an anti-body reaction, whatever, and
is much more sensitive to it than other people. In
terms of what people can breathe in ~n the size of the
particles, if it is somewhere in the 5 to 10 micron size,

1078

more likely or not those size particles will be
blocked out by the nasal hairs or screened out somewhere .in the upper respiratory system. We are
talking about particles that are getting down into
the lungs, would be somewhere between 0 to 5 microns
and the 5 micron size in terms of silica is probably
the particle size that is causing the most damage
for acute silica is a very small size.

Q.

Would you agree with the statement to the effect
that if chronic, it might have no effect whatsoever
on life expectancy, any different that a city dweller?
A.

Let me again divide this into categories.

Q.

Is there a way that could be answered yes or no?

A. If you ask me to answer it yes or no I will have
to lump everything together and I will say that silicosis
will reduce your life by 6 to 11 years. If you want
me to separate it out, separate out certain forms of
chronic silicosis that don't seem to caus.e quite as
much damage, as I said, there are several factors involved.
One of which is an individual's response to it. Like
anything, you may have some people who react more, some
pedple who react less.

Q. Have any of the tests that were done that are in
your report there, have you ascertained whether or not
any of these people had T.B.?
A. I note there is a recommendation that they should
do annual T.B. skin tests.· I am not sure, I can't
remember whether they did T.B. Skin tests--

Q. (Interrupting) Doctor, were any of these men coughing
blood, do you know?
A.

I don't know the answer to that.

Q.

Did any of these men lose any weight, do you know?

A.

Again, I don't know the answer to that.

Alld, at pages Tr. 159-160:
JUDGE KOUTRAS: Doctor, do you know what· this specific
proceeding is about in terms of the citation that was
served on the respondent Tammsco?

1079

THE WITNESS: Mr. Smith has explained a little bit
about it but I don't pretend to know the whole
JUDGE KOUTRAS: The operator in this case was cited
for failure to provide the rough buff bagging machine
with a dust collection system, to wit, some sort of a
shroud or a hood that the government contends had
been agreed to by this operator. And that is the
nuts and the bolts of the citation. The standard
cited says that a mine operator is required to control
harmful, airborne contaminants insofar as feasible.
By prevention of contamination and removal by exhaust
ventilation or by dilutation. The government takes
the position that this airborne contaminant, harmful
airborne contaminant, rather could have been controlled
or otherwise disposed of by the use of this device.
Now, the study that was conducted by NIOSH, which is
Exhibit P-5, was a study conducted of the dust
exposure levels at that plant in 1979. This particular
citation was issued in 1981. Now, absent any changes
would the harmful effects of the airborne contaminants
be any more or less in 1981 than they were in 1979 when
the study was conducted? In other words, can I assume
that once you have an airborne contaminant that is
considered to be harmful to the types of tests, the cypes
of analyses that are done in this NIOSH thing, does
that mean that all things being equal that that is it,
from then on that 15 years being equal that that is it,
from then on that 15 years later MSHA can come back and
say the mine operator is being out of compliance based
on that particular study?
THE WITNESS: The answer to that is yes, and that is
why I tried to underline or emphasize the first recommendation of NIOSH that you must have engineering control,
absent that engineering control the danger and in NIOSH's
point of view we call it imminent danger. We may have
a quibble there with MSHA as to why they downgraded this as to not really an imminent danger but if you are
reducing the definition of imminent danger you cannot
expect abatement before bodily harm would insue and if
you are offering the way your control or abatement this
respiratory program, I can guarantee you that the
respiratory pr<?Jgram, given its fine particle size and
problems people always have with the respiratory programs,
that it just is not going to work. What we need to have
is engineering control. Absent that engineering control
that danger will go on and on and people are going to get
sick.

1080

MSHA Inspector George Lalumondiere, testified as to his experience
and background; and he confirmed that ,he has conducted numerous at
respondent's plant, starting in late 1979, and up to a year ago. He
confirmed that the respondent mines silica, and the product is used in
the manufacture of paint (Tr. 161-164). There are approximately 17 to 22
employees at the plant, and the plant produces approximately 16,000 to
17,000 tons of product annually. He identified the President of the
company as John Norton, and confirmed that respondent Harold Schmarje
is the plant superintendent (Tr. 166). The plant operates on a five-day
we~k, two shifts daily.
Mr. Lalumondiere identified exhibit P-8 as a copy of the citation
he issued in this case on May 7, 1981, including the modification and
termination after abatement of the conditions cited (Tr. 168). He
also identified exhibit P-9 as the respondent's dust control plan
submitted to MSHA on April 14, 1980, and that is the plan referred to
in his citation. He described the conditions cited, and stated the reason
for issuing the citation, as follows (Tr. 168):
A. The point that was in violation is that the
ruff-buff bagging machine engineering controls
were not being maintained on it and were not
being utilized on it and the fact that it was tied
in to the dust collection system to eliminate the
contamination of the worker's atmosphere by
removal of dust from the bagging operation.
Mr. Lalumondiere confirmed that the specific dust control plan which
was not followed is Item 4-E, which reads "A shroud will be installed or
maintained at all bagging machines". He detailed the evolution of the
respondent's dust control plan, and confirmed that it was submitted after
the plant had been shut down for noncompliance with the dust standards
on March 18, 1980, and confirmed further that the plan was modeled after
a similar plan submitted by one of the respondent's competitors, Illinois
Minerals Company. The plan was voluntary, and the respondent participated
in its formulation, modeled after a copy of the plan for Illinois Minerals,
and it was in fact the only plan accepted by MSHA in effect at the time
he issued his citation of May 7, 1981 (Tr. 170-175).
Mr. Lalumondiere confirmed that the plant was shut down as a result
of certain Section 104(b) Orders on October 10, 1979, and these citations
affected six occupations which were being performed within the mill,
and without these occupations working, the mill could not operate and
the respondent shut the entire operation down (Tr. 176). Subsequent
modifications permitted the plant to be reopened and operated peri~dically
until such time as the dust control plan was submitted on March 18, 1980,
at which time the plant was again reopened (Tr. 178).
Mr. Lalumondiere testified that his belief that Mr. Schmarje knew
about the requirement that the dust shroud be in place on the Ruff-Buff

1081

bagger machine while it was in operation stems from the fact that he
was aware of the fact that this was a condition for terminating the
closure order of October 10, 1979, to permit work to continue on
April 14, 1980, after the respondent agreed to follow the dust control
plan of that date. Mr. Schmarje was served with copies of these orders
and notices (Tr. 260-261).
Mr. Lalumondiere stated that the bagger in question was originally
installed sometime in early January 1981, but that it was actually
received at the plant sometime in October 1979, but was left in the packing_
crate for some time. On numberous occasions subsequent to the installation
of the bagger, he was at the plant on inspections and observed the shroud
lying on the floor by the door. It was his unde~standing that this
shroud lying on the floor by the door .:was an old. shroud which he believed
w~s .. at one time installed on the old bagger, but sequently.removed.
While it
was supposed to be attached to the new bagger he never s~w it attached
anytime prior to May 7, 1981. He confirmed that when he asked Mr. Schmarje
why the shroud had not been attached to the bagger, Mr. Schmarje advised
him that he had only planned to use the bagger for a short time in order
to build up a stockpile, and saw no need in wasting time to attached the
shroud (Tr. 262).
Mr. Lalumondiere confirmed that when he issued the citation on
May 7, 1981, Mr. Schmarje conceded that the dates shown on the bags of
silica on the pallets found near the bagger were in fact the dates on
which the product in question was bagged, and he also confirmed that at
that time Mr. Schmarje admitted that the shroud was not in place on the
bagger at the time the material was bagged (Tr. 263).
Mr. Lalumondiere identified exhibits P-17 through P-19 as photographs
of the bagging machine in question as it appeared after the shroud was
installed and after the citation was abated (Tr. 266). He also identified
exhibit R-6 as copies of notes which he made at the time he issued the
citation in issue, and he read a notation from those notes as follows:
"Bags on pallets for days, from 11/12, all the way up through 5/5/81.
This would indicate that the bagger is used regularly, as the superintendent
stated it has been, and is being used for stockpiling" (Tr. 293). He
confirmed that these notations, made on his inspector's statement, reflect
his views that the bagger was used and had been used to bag the material in
question (Tr. 294). He confirmed that three of the seven bags which he
observed on the pallet near the bagger were stamp-dated May 5, 1981 (Tr. 297).
He also confirmed that he observed seven pallets, each with 50 bags of
ruff-buff material stored on them, or a total of 350 bags (Tr. 298),
and these pallets were located in the same room as the bagger, approximately
20 to 25 feet away from the machine (Tr. 300-301).
Mr. Lalumondiere confirmed that one of the pallets which he observed
contained seven bags of ruff-buff material, and they were dated May 5, 1981
(Tr. 304). After randomly checking the dates on the pallets which were
fully loaded with 50 bags each, he determined that the dates stamped
on the bags were 11/12 to 12/17/80, and 1/8, 3/27, and 8/12/81 (Tr. 305).

1082

He confirmed that he did remove a sample of ruf f-bugg from a bag ·
stored on the pallets, and while he believed it was sometime in August 1981,
he could not recall the specific date which stamped on the bag from which.
he removed the material (Tr. 306).
Mr. LalulllDndiere confirmed that he personally never saw the bagger
in question in operation, and that his conclusion that it was us·ed to
bag the material which he found on the pallet near the machine came from
Mr. Schmarje, and he also confirmed that he never sampled any of the ruff-buff
material in question (Tr. 312-313). However, he did confirm that he did
sample the material either on August 20 or 21, 1981 (Tr. 315). He also
confirmed that Mr. Schmarje admitted to him that the bagger was used on
the days indicated by the stamped dates on. the bags of material stored
on the pallet near the machine, and that Mr. Schmarje also stated that
it was his intent to continue using the bagger to bag material until he
had a stockpile built up (Tr. 317).
Max Slade, was recalled, and again confirmed that he accompanied
Mr. Lalumondiere on his inspection tour on May 7, 1981, and he described
the conditions which he observed while he was with the inspector in the
plant (Tr. 323-325). He confirmed that the dust which he observed in
the plant came from "general dust from the entire plant, from all three
bagging machines and from the various leaks around the plant" (Tr. 326).
He also confirmed that he had no way knowing with any certainty that the
"tracks of dust" he observed on the plant floor was in fact silica dust
from the bagging machine which was cited in this case (Tr. 326). Mr. Slade's
explanation as to why the plant was out of compliance on the day the
citation in this case issued is reflected in the following colloquy
(Tr. 328-333):
A. * * * We went on through the plant, observing
the leaks, which were numerous. One leak in particular
on the roof of the building was a pile of silica several
feet high that was dribbling down over the building and
through the cracks and just permeating through the entire
building. Dust in the air was visible. This is sub
micron-size particles. One report shows that the mediumsize particle is around five microns, which is of respirable
size. This size particle is not visible to the naked eye,
unless it is in extremely high concentrations. Any time
you can see dust of this size, it is a scientific fact
that there is a violation, if it is silica.
JUDGE KOUTRAS: All right. Stop right there. Would you
then suggest a mandatory safety standard, in Part 57, that
says whenever an inspector can visibly see with the naked
eye airborne dust, that he knows is silica, that there
is ipso facto a violation of this standard?
THE WITNESS: No, sir, because you would have to have a
particle-size distribution before you could make that
determination.

1083

JUDGE KOUTRAS:
at this plant?

Is that not true on any given day

THE WITNESS: Yes. Well, no, sir, if it is good
and clean, you cannot see the dust in the air.
KOUTRAS: No, what I am saying is: If you
can see dust in the air, at any given time at the
plant, you are saying that it is a known scientific
fact that there has got to be a violation?
JUD~E

THE WITNESS:

That is right.

JUDGE KOUTRAS: .Why not just say that in the standards,
if one can just come to the conclusion that by visibly
looking at it and seeing dust flying that that is a
violation?
THE WITNESS: Then we would have to have a standard for
every mine and for every different size distribution.
JUDGE KOUTRAS: No, no. The standard could say for
this particular mine. For example, if you know that they
are mining Product "A" at Plant "A".and the inspector goes
in there and sees Product "A" flying through the air, then
that is a violation for that plant?
THE WITNESS: We would end up with 15,000 standards. We
would have to have a different standard for each operation.
JUDGE KOUTRAS:
THE WITNESS:

Do you mean for each product that is mined?
Yes.

JUDGE KOUTRAS: There are 15,000 different types of products
that are mined, in metal and nonmetal?
THE WITNESS: Every silica plant has d.ifferent size distributions of the particles because they manufacture different
types of material, different grades, proportionates.
JUDGE KOUTRAS: So, in other words, if you have a plant
that mines silica, not of the coarseness or the fineness
or whatever the terms may be that is being mined at this
plant, am I to assume that when you go to that plant
and see it flying around, they may not be out of compliance.
THE WITNESS: That is right. You would have to know the
size distribution of the material, itself, before you
could make that assumption.

1084

JUDGE KOUTRAS: If I were to go out there at the
plant this afternoon, let us say, for a site visit,
and I see silica dust floating all over the place and
I am leaving my own tracks through the plant, as I
walk to this bagging machine this afternoon, to look
at it, can I assume that, since this particular plant
mines the type of silica that MSHA asserts they mine,
ipso facto, when I see it with my eye, that is a
violation of the standard?
THE WITNESS!
JUDGE KOUTRAS:

Yes, sir.

You could assume that.

Based on what?

THE WITNESS: Based on the size of the material that
they grind and bag in that operation.
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:

Has what?

Has already been tested?

Has already been tested.
When?

THE WITNESS: NIOSH tested it. We have tested it.
They advertise it in their own literature as submicron
size particles. This is the way it is adversited and
sold.
JUDGE KOUTRAS: But you can see that the inspector that
issued this citation did not test it to support this
particular violation, is that not so?
THE WITNESS: He has cited it numerous times. He has
tested it numerous times. We have taken a hundred and
twenty-some airborne samples in this operation.
JUDGE KOUTRAS:

Of Ruff-Buff?

THE WITNESS: No, of the dust in this plant, which is
in the same room with the Ruff-Buff and which is in
the same general area and breathed by the same employees.
JUDGE KOUTRAS: Can I ask a question now, from a layman's
point of view? Has the Ruff-Buff product, itself, the
stuff that goes into that bag from that machine, ever
been subjected to laboratory analysis?
THE WITNESS: Yes, sir.
size distribution.
JUDGE KOUTRAS:

It has been subjected to a

When was that done?

1085

THE WITNESS: We have it in evidence. You have
the analysis sheet marked as, I believe, p-6,
in evidence.
JUDGE KOUTRAS: Now, have the other products, that
are produced at this plant--somebody mentioned something about a brochure--all of those products,
individually, been subjected to laboratory analysis?
THE WITNESS: We have evidence, in evidence here, the
NIOSH report, that gives the size distribution of
the airborne contaminants.
JUDGE KOUTRAS: . So, in other words, what you are telling
me is that the inspector goes out to the plant and, if
he sees this very same bagging machine, with the shroud
off, and sees dust flying all over the place and piled
up there, he does not grab a handful of it and put it in a
bag and label it and then-MR. SMITH:

He does not have to.

JUDGE KOUTRAS (continuing) -- just a minute -- issues a
citation, sends that bag off for analysis, gets the results
back and then that will support, but that is not the
procedure? Mr. Smith says he does not have to. Is that
your understanding of how the inspector supportscitations
at this operation for dust violations?
THE WITNESS: In many cases, wherever possible, the inspector
will take a sample to support the violation. In this case,
there was no chance to take a sample. It is not needed
in this case because all existing, outstanding citations
in that very area are against the very people, the same
people, that operate this Ruff-Buff machine. A sample
was taken both before and after this May 7th date, all of
which show noncompliance.
JUDGE KOUTRAS: Were these outstanding citations against
this very same machine or were they outstanding with
respect to the people that work in the area which was
sampled individually?
THE WITNESS: Outstanding against the airborne contaminants
in that area, of which this Ruff-Buff bagger is an integral
part. Any dust emanating from that bagger will contribute
to the overall dust load of the mill and, as such, is a
harmful airborne contaminant.
JUDGE KOUTRAS: What you are saying is that for the several
months before this citation, there were some samples taken
of the Social Security numbers and the job identification

1086

numbers of people that are in close proximity to
this Ruff-Buff bagging machine?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS:
noncompliance.
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS:
TE WITNESS:

Those samples came back and showed

Citations issued?

Yes, sir .

. JUDGE KOUTRAS: Citations are not going to be abated
until they do something to reduce the levels of
exposure to those individuals to bring them into
compliance, correct?
THE WITNESS:

That is right.

JUDGE KOUTRAS: And that this Ruff-Buff machine citation
is an integral part of that entire picture?
THE W!TNESS:

Yes, sir.

With regard to Mr. Schmarje's prior knowledge that the Ruff-Buff
machine was used to bag the materials found by Inspector Lalumondiere
on the pallets in question, Mr. Slade confirmed that he heard Mr. Schmarje
state that this was in fact the case, and that he also heard him state
that the material was bagged without the shroud being in place because
he wanted to build a stockpile so that the bagger could be moved to
another location, and that he needed an additional few days to move the
machine (Tr. 334). Mr. Slade also confirmed that the shroud he observed
lying on the floor had obviously not been used since it was covered with
dust and dirt, and in view of the fact that he also observed an accumulation
of silica material under the machine it was obvious to him that the
bagger had been used to bag material without any dust collection system
attached to it (Tr. 335).
Mr. Slade identified exhibits P-20 and P-21 as two proposed dust
control plans for the plant in question, and the former is a compliance
schedule covering five years, and the latter is a compliance plan spanning
a period of ten years (Tr. 338-341). He conceded, however, that there
is no specific regulatory requirement that a mine operator submit and
adopt any specific dust control plan, or to seek MSHA's approval for such
a plan (Tr. 353). He also confirmed that at no time did MSHA agree
that any engineering controls, except for the ones set forth in the
April 14, 1980 dust control proposal, would be acceptable (Tr. 355).
Mr. Slade identified exhibit P-22 as a letter dated May 21, 1981 which he
sent to Mr. Norton concerning the conditions observed during the inspection
which led to the issuance of the citations in this case (Tr. 357).

108'1

On cross-examination, Mr. Slade identified exhibit R-7, which a
letter dated July 10, 1981, from respondent's pr~sident, John Norton,
explaining the. circumstances surrounding the issuance of the citation,
and while the letter is addressed to Mr. Slade, he denied ever receiving
it or seeing it prior to the hearing (Tr. 362).
Mr. Slade confirmed that the two-spout bagger and the ruff-buff
bagger are two separate machines and are not similar. He also confirmed that he observed the new ruff-buff bagger on May 7th, and also saw
the shroud lying in the corner by a door leading to a parking lot, and
the shroud was covered with dust. In view of the amount of dust on
the shroud, Mr. Slade was of the opinion that it was on the floor more
than a day or two prior to May 7th (Tr. 372).
Mr. Slade stated that on May 7th he and Mr. Lalumondiere had a
conversation concerning the partial pallet of ruff-buff material which
was located near the machine. Mr. Slade observed seven bags on that
pallet, and every bag which he could see was dated May 5th. He confirmed
that no samples of the ruff-buff were taken, and no effort was made
to record the dust levels on May 7th (Tr. 373).
Respondent's testimony and evidence
John Norton, confirmed that he is the owner and sole stockholder of
Tammsco, Inc., and has owned the company since 1973. He agreed that a
shroud is an accepted engineering control measure for a bagger, and he
confirmed that a new bagger was purchased in late 1979, and installed
sometime in 1980, and that a shroud was subsequently installed upon
it (Tr. 396). He described other dust control measures that he has
taken since July 1979, and these included the acquisition and remodification
of dust collectors and the changing of circuits throughout the plant.
He also confirmed that he has his own dust sampling devices which are
used for monitoring purposes, but that he has contracted with several
private companies to collect and analyze samples and to report to him
in this regard, and some of these companies were among those recommended
to him by MSHA. He confirmed that testing was conducted a week after·
the citation in question was issued (Tr. 395-399).
Mr. Norton denied that the present condition of his plant is as
bad as MSHA says it was in the past, and in his opinion, the plant has
made improvements and progress since 1979 to achieve compliance with
the required dust requirements (Tr. 401).
Harold Schmarje, confirmed that he is respondent's plant manager,
was hired in that capacity on February 20 or 21, 1980, and that he has
four and one half years' experience as a hard rock miner working in
underground mines. He also confirmed that he has experience as a plant
engineer dealing with dust control shrouds, including the redesign of
such devices. He conceded that such shrouds are acceptable engineering
dust control devices for baggers, and that a shroud was installed on
the ruff-buff bagging machine at the time the machine was installed. In

1088

addition to the shrou~, he testified as to other engineering dust control
measures which were taken to control the dust at the plant in question
since he has been the manager. He also testified as to certain problems
which he encountered in his attempts to control the dust, and the improvements and actions taken by him to insure compliance with MSHA's dust
control requirements (Tr. 402-409).
Mr. Schmarje testified that a day or two before the MSHA inspection
in question the bagger had been run into and damaged, and he instructed
that it be cleaned up and either put back into service or taken "off the
line" (Tr. 410). He confirmed that on the day of the inspection he told
the inspectors that the shroud had been in place, but that it had been
damaged and the machine was not in service. He conceded that he also
stated ·to the inspectors that-it was possible that the machine could
have been used for a short period of time to remove the material that
was in the bin, but that he did not know this was in fact the case. He
denied ever telling anyone t.hat he knew the shroud was off the bagger
and that he used it in order to continue production. He explained further
as follows (Tr. 412-413):
A. Well, what I did say is that, if the shroud
were not on there and it had been run, explaining,
you know, for the short period of time, "I doubt
very much that it would contribute to any dust
levels in the plant because that material is the
heaviest material that we run." It is the residue,
in other words. lt has already been run through
~he system.
lt has physically and purposely been
air swept twice and the fine part~cles, as much as
possible, have been taken out of there to recover.
I think, at the time, that I remarked something like, "If there was something in the area of
2 per cent of fine material left in there, I would
doubt it very much and that would probably be
adhered--"
One of the problems that we have is that the
particles have a tendency to develop a static charge
and they have a tendency to stick together. One
of our problems is trying to separate that. Now,
we succeed in separating it when we put it through
the air classifiers and such, but it will have a
tendency to combine again afterwards. This is a
problem they run into at the dispersion.
At any rate, I made the comment that, "If
there were any dust there, it would probably be so
closely tied with the other materials that I doubt
if it would be liberated at all." That was the
gist of the conversation.

1089

Ref erring to the fact that the people ment!oned
that I had said that we had run it without and
that I intended to run the thing without, no way.
I do not proceed that way.

Q. My final question to you, Mr. Schmarje, is:
From and after the installation of the shroud,
whenever it was, January or February, when that
machine went on line, to the time just at, or about,
the 7th of May, to your knowledge, did you ever
order that shroud off or, to your knowledge, did
you ever run that Ruff-Buff bagger, knowing that
the shroud was not on it? Yes or no?
A. No, sir. I never have. It has been damaged
a couple of times, slightly, and then put back into
shape, but no, sir, I never ordered in that manner.
On cross-examination, Mr. Schmarje confirmed that he had previously
been i!1-terviewed by MSHA special investigator Dennis Haeuber and that he
had received a copy of that interview. However, he insisted that his
statements made to Mr. Haeu~were taken out of context and that is
the reason why he refused to sign the statement (Tr. 141) •. He identified
exhibit P-24 as a copy of the interview, and MSHA's counsel confirmed
that the interview was not tape recorded or taken down by a shorthand
reporter, but that Mr. Haeilierwrote down the questions as well as the
responses made to those answers, and then had it transcribed and sent
to Mr. Schmarje for his review and signature. Counsel explained that
the normal procedure was to tap.e record such interviews, but that
Mr. Schmarje refused to have this done (Tr. 422). Counsel also confirmed
that such statements are not taken under oath since the investigator
has no authority to administer such oaths (Tr. 422-423).
Mr. Schmarje testified as to certain contradictory statements made
in the interview and he explained some of the recorded answers given
to Inspector Haeder (Tr. 435-443). He also explained some of his interview
answers as follows (Tr. 451-465):
THE WITNESS: "Do you have an explanation of why the
Ruff-Buff machine was allowed to operate without a
shroud in place?"
Again, I would have qualified it, that I would
not have allowed the machine to run without the
shroud in place and, if it had been run, it would
have been run only to empty out the material that
was left in.
JUDGE KOUTRAS:

What was your response to that?

1090

THE WITNESS: It says, "When I saw the machine
was ·in operation, I let it continue to operate, because I believe the dust levels are negligible.
The time element left to produce the material was
also negligible."
JUDGE KOUTRAS: Now, when he asked you to explain
why you allowed it to operate without a shroud and
you responded, "When I saw that machine in operation",
that leads me to believe that when you saw it in
operation, it did not have the shroud on it, by
your response.
THE WITNESS: I did not see it in operation. I saw
that the machine did not have the shroud on it. I
told the men to make sure that thing is emptied out.
Now, if I may go back, maybe I can simplify this and
clear it up.
I

I

That machine was in a position that was subject
to being--what would I say? It was in an inconvenient
area, because the forklifts were corning through there
off~and-on, traveling through that particular area, when
they would pick up the material from the neo-sil
bagging area.
I had slated to move that machine, also, to go
and reconstruct the machine, itself, because it is
now--it was a pressure flow type of bagger and we were
experimenting with trying to go to an air flow type
bagger. We had already slated to move the machine,
to put it into a different position, for two reasons:
To test if the air flow type of machine would work
with that particular product and, if it would, perhaps
we could use with finer products; and the other reason
was to eliminate an elevator, which is one of the
problems with regard to a dust source. Elevators are
very difficult to seal up around bearings and such.
That is the reason why it was slated to be moved.
Now, the machine, itself, with regard to the
question there-I would not have said that I allowed
the machine to run without a shroud on it. I do not
do things like that. The only reason that it-During the period of tirne--in other words, if the
shroud was damaged and it was off of there, if there
was any product lef~ in that machine, it had to be
emptied out. That is what I am trying to say.
JUDGE KOUTRAS:
material out?

And they would use it to get that

1091

THE WITNESS: And they would have to use it to
get that material out.
Now, the only way you can get it out, other
than putting it in a bag--and that is probably ·
where the seven bags came from. I do not know that
as a fact. That may have been emptied out beforehand
I do not know.
But the only way to get it out of there, and
the le&st dusty way to get it out of there, is to
put it in a bag. Otherwise, you have to dump it
out either into a vat or a bin or on the floor. And
I would have qualified the statement and explained it
thoroughly.

* * * JUDGE KOUTRAS:

Mr. Schmarje, I am having just
a little trouble comprehending this. On May 7th the
inspector comes in and gives you this citation, right?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: Are you telling me that the shroud
had been knocked off a couple of days before he got
there on May 7th?
THE WITNESS: The shroud was not actually knocked
off. It had to have been reinoved, cut off of there.
JUDGE KOUTRAS:

With a blow torch?

THE WITNESS:

Yes, I would assume so.

JUDGE KOUTRAS:
THE WITNESS:

From that very machine?
From that machine, I would assume so.

JUDGE KOUTRAS: Well, what is this accident we have
all been hearing about?
THE WITNESS: Well, the machine was in a bad position
and, if they just bumped the shroud, it jams the
scales and then the machine cannot be-JUDGE KOUTRAS:

So they have to take it off?

THE WITNESS: If it is just a light bump, they
can usually push it back in shape, so on and so forth.
That is one of the reasons why we want.ed to move the
darn thing, because it was in a bad position. Now,
if they bump it real hard, they are going to jam the

1092

scales and bend them out of shape and it will not
operate. Then they will have to take the shroud
off and repair the machine, itself, and then they
have to put the shroud back on.
JUDGE KOUTRAS: On May 7th, when the inspector
came in and found the shroud off the machine-THE WITNESS:

Yes, sir.

JUDGE KOUTRAS (continuing)--what explanation did
you give him as to why it·was off the machine?
THE WITNESS:
into.
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

I told him it had probably been bumped
Probably been bumped into.
And they removed the-And they probably removed it.
And the machine was--

JUDGE KOUTRAS: And they probably cut it off with
a blow torch, and they probably laid it by the door.
Is that what you told them?
THE WITNESS:

I did not say probably all--

JUDGE KOUTRAS: But would you not know, as plant
superintendent, if this device had been knocked into
and somebody took it iff and laid it aside? Why
would you have to find out sometime later from your
lawyer-THE WITNESS: No, sir. I knew that it had been
taken off. I saw that the machine was--Let me
back up. On May 7th the inspectors came in.
JUDGE KOUTRAS:

Right.

THE WITNESS: O.K. Now, it was approximately a day
or two before that I had seen that the shroud was off
the machine.
JUDGE KOUTRAS:

O.K., and laying there--

THE WITNESS: Right. So I assumed that the machine
had been run into again and that they had removed
the shroud. I told them, I said, "Get that thing
cleaned down. Take it off the line and shut it down."
That is it.

1093

JUDGE KOUTRAS: So two days before this inspection,
you saw that contraption off the machine, laying
down some place?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: Your assumption was that the reason
it was off and laying down was because somebody
probably bumped into it-THE WITNESS:

That is right.

JUDGE KOUTRAS (continuing)--and took it off to do
something with it?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

Correct, for repair ..
You are the plant superintendent?
Yes, sir.

JUDGE KOUTRAS: Why would you make those assumptions,
without finding out what did happen to this thing and
when it is going to be repaired, who did it, and when
they are going to put it back?
THE WITNESS: Unfortunately, I ordered that it be
repaired and put back into condition.
JUDGE KOUTRAS:

Who did you tell that to?

THE WITNESS: That I do not know. It may have been
my assistant. It may have been one of the mechanics.
Mr. Schmarje testified that the silica mined by his company and processed
at the plant in question is 99 percent pure silica, but he denied that
it was all respirable since it may contain other impurities. He conceded
that the ruff-buff product in question was pure silica, and he also
conceded that the original characterization of the silica mined by his company
as "amorphous" was a misnomer, and that sometime after 1979, after subjecting
the silica to high-powered microscopic testing, it was discovered that it
was in fact composed of a micro-crystalline structure. He confirmed that the
silica processed at his plant is mined from an underground incline mine located
some six miles from the plant, and the silica is transported to the plant
by truck (Tr. 268-470). The processed silica is used for a number of
purposes, including paints, plastics, abrasion rubber, etc. (Tr. 471).
Mr. Schmarje described the process followed in the production of the
ruff-buff material in question, and he confirmed that neither his company nor
MSHA have ever sampled the ruff-buff. He explained that the ruff-buff bagging

1094

machine has never operated over an eight-hour sustained period of time,
and that since the machine is not operated continuously for sustained
periods of time, any samples would be negligible, and any airborne
contaminants coming from that machine would be minimal (Tr. 472). He also
stated that any fine particle respirable dust that would be left in the
ruff-buff product during the bagging process would not contribute to
the overall plant dust level, because it would have been "air-swept" (Tr. 474).
Since the ruff-buff is of a heavier particle size, he did not believe
it was as damaging as the other silica dust processed at the plant (Tr. 474).
When asked why MSHA would insist that he have a shroud on the ruff-buff
machine if it is not harmful, Mr. Schmarje stated that his position was
that since the dust control plan called for a dust control shroud on
each machine in the plant, he would insist that it be placed on the ruff-buff
bagger. He also alluded to the fact that the NIOSH study in question
assumed that no matter where silica was present in his plant, it was a
respirable health hazard. He agreed that if it can be established that
ruff-buff is respirable, then it would be a hazard, and he further explained
his answer as follows (Tr. 477):
THE WITNESS: A standard is for an eight-hour period.
It's time-weighted period, I understand, and it is
10 milligrams per cubic meter on time-weighted. What
I'm saying is that that machine is never operated
for an eight-hour period and that the percentage of
fine, respirable dust that would be in there would be
so negligible with regard to any testing of such that
it would not show up. It wouldn't even appear.
JUDGE KOUTRAS: What standard do you believe MSHA
is holding you to?
THE WITNESS: They are holding me to the standard of
maintaining a dust collection system on the bagger
and it was in place. We complied with those standards,
according to the April 14 dust control plan, which had
subsequent plans submitted with regard to it.
Mr. Schmarje confirmed that he was not with the inspectors when they
found the partial pallet near the ruff~buff bagging machine, nor was he
present when they sifted through the bags of material on the pallet. He
conceded that the ruff-buff material in those bags was bagged by the
machine in question, but he denied telling the inspectors that the material
was bagged with the dust shroud off, that he knew it was off, and that
he instructed the bagger operator to go ahead and bag the material anyway
(Tr. 487). He stated that he explained to the inspectors that the bagger
had apparently been damaged, and that when he discovered the shroud was
off he instructed the operator to clean the machine out and to take out
all of the ruff-buff material left in the machine storage bin. Since
there were seven bags of material on the pallet, he had no way of knowing

1090

whether the material had been bagged with the shroud on or off (Tr. 489).
He denied making any statements to the inspectors that the bags containing
dates of November 12 and December 12, 1980, were bagged without the use
of the dust shroud (Tr. 490).
Mr. Schmarje confirmed that the bagging machine in question is not
used on a regular basis, that the material bagged with that machine is
minimal, and that it is used for the purpose of building up a warehouse
stockpile. Once the inventory is reduced, the machine is again used to
build up a stockpile (Tr. 491, 492-493). Mr. Schmarje conceded that the
ruff-buff bagging machine was used to bag the materials which were stampdated 11/12/80, 12/12/80, 12/17/80, 1/8/81, 3/27/81, and 5/5/81, as noted
by the inspector on exhibit P-15 (Tr. 494). He also agreed that the
machine must have been installed at least as early as November 12, 1980
(Tr. 494).
Ernest Butler, testified that he is employed by the respondent as
a maintenance man, and he confirmed that he is a welder and that his duties
include the repair of the machines in the plant. He confirmed that the
new ruff-buff bagging machine was acquired "somewhere around 1980" as a
replacement for the old one. He stated that he installed the dust shroud
on the new machine when that machine was installed, and that the shroud
was the one which was previously on the old machine (Tr. 504). The
installation was made by welding the shroud onto the machine, and he
explained how this was done (Tr. 505-506).
Mr. Butler stated that during the week of May 7, 1981, foreman Gene Pool
told him that someone had called and requested that a shroud be installed
on the ruff-buff bagger, and when he went to look for the shroud he
found in "standing back towards the maintenance shop", and it did not
have an accumulation of dust on it. Mr. Pool told him had someone had
called him and Mr. Pool said "ernie, will you put that shroud back on"
(Tr. 507). Mr. Butler then "went to repair the shroud so I could put it
back on". During a conversation with Lee Kirby, another maintenance man,
Mr. Kirby informed him that the shroud had been damaged when it was run
into by a fork lift. Mr. Butler stated further that he believed the
shroud had been damaged the day before he was told to reinstall it because
he had previously seen it on the machine the day before when he left
his work shift (Tr. 508). Mr. Butler described the damage, and the
repairs which he made (Tr. 509). He identified exhibit R-9 as his daily
worksheet, dated May 8, 1981, and there is a notation "worked on ruff-buff
machine. Put hood back on" (Tr. 511).
On cross-examination, Mr. Butler confirmed that he made the original
installation of the shroud on the machine the same time the machine was
installed, but he could not recall the precise dates (Tr. 512). He also
confirmed that to his knowledge since the original installation of the
shroud, it had never been off the machine except for the time he rewelded
it back on on May 8, 1981 (Tr. 514), and had it been off any other times
he would have known'about it because he is the only welder available
for such work (Tr. 516). He also was of the opinion that the shroud could
not have been off overnight because he walked by it "50 times a day" and
he would have noticed it (Tr. 518).

109{)

In explaining the work he did in putting the shroud back on the
machine on May. 18, 1981, Mr. Butler explained that after repairing the
legs, he had to make additional repairs to facilitate hooking in the air
pipe, and he explained that "The hoses for the air pipe were already
there, but I had put it in with metal pipe, and whoever took it off had
cut it off. Instead of unhanding it, they just cut the pipe out of the way."
(Tr. 513). When asked to explain who did this work, Mr. Butler stated
that he was told that the mechanic on the second shift cut the shroud
off with a welding torch after it was damaged, and someone stacked in
the corner, and he was instructed to repair it and reattach it. Mr. Butler
also indicated that the mechanic who cut it off "can weld, but not very
good" (Tr. 517).
In response to further questions, Mr. Butler identified exhibits 17, 18,
and 19 as photographs of the shroud in question, and he indicated that
they must have been taken after he reattached the shroud (Tr. 520). He
also indicated that he could not remember speaking with anyone about the
shroud at the time the citation issued on May 7, 1981, including the
inspector, and he confirmed that his work shift is from 7:00 a.m. to
3:00 p.m. (Tr. 520). He identified Inspector Lalumondiere in the hearing
room, acknowledged that he knew he was an inspector, but he denied that
he knew that Mr. Lalumondiere was the person who issued the citation in
question, and he denied that he had ever discussed the citation with him
(Tr. 521).· In response to further questions as to how long the shroud
may have been off the machine prior to May 8, 1981, Mr. Butler testified
as follows (Tr. 522-523):

Q.

Does it surprise you to hear that Mr. Schmarje
even said that thing was off on May 5? That's two
days earlier, at the very least.
(No response.)
BY MR. SMITH:

Q. Well, you don't have to answer the question. If
you can't answer it, you don't have to. If I tell
you that, in point of fact, that shroud was off on
May 5, 1981, which is some three days before you
repaired it or put it back on, as you put it,
May 8, 1981, does that surprise you in anyway?
A.

*
Q.

Yes, it does.

*

*

*

• other words, would it be your
Mr. Butler, in

testimony that it could have been the 5th or the 6th-is it consistent with your understanding of this that
it could have been the 5th or the 6th that it was
knocked off?
A. It could have been. I go by that thing all the
time. I don't stop and look at every machine to see
if the shrouds are on them.

Q.

But you know that--

JUDGE KOUTRAS (Interrupting): Well, let's don't
split hairs. Mr. Schmarje himself said it could
have been a couple of days. The man is telling
you, "In the normal course of business on any given
day, I usually walk by there, and if it would
have been off, I would have seen it." The question
I would ask him, if it was off in November 1980,
would you have known about it?
THE WITNESS:

Yes, sir.

Paul Riston, testified that he has worked for the respondent for
two years, and that his job is to "clean up". He could not recall any
spcific dates, but confirmed that he told respondent's counsel about
"the day" he ran into the ruff-buff machine with a fork lift.he was
operating, that he didn't think he had done much damage, but "felt bad"
about it and went home after the incident (Tr. 527). Mr. Riston reviewed
his work "time card" shown to him by respondent's counsel, and he confirmed
that it reflects that he worked eight hours on Monday and Tuesday, but
that on Wednesday, the record only reflects 5.5 hours, and he believed
that is the day he left work after hitting the machine and damaging the
shroud (Tr. 529-530). He told no one about leaving work early, could
not remember discussing the incident with any supervisor, and he did
not know when management found out about it (Tr. 531). He also confirmed
that he was afraid he would be fired (Tr. 531).
George Storm, testified that he was employed by the respondent as a
mill operator, and he confirmed that he has operated the old and new
ruff-buff machines in question. He could not state when the new machine
was acquired, but he confirmed' that he has used it over a period of six
or eight months. He stated that he ran the machine no more than once
a month, and that he has run the new one 10 or 15 times (Tr. 533). Prior
to May 1981, he may have run it "more than five times", but always with
the dust shroud in place and he never operated it without a shroud
(Tr. 534). He identified a copy of exhibit R-11, as a statement in question
and answer form which was sent to him for his signature after an interview
with MSHA's investigator, and he stated that he never returned a signed
statement (Tr. 536). Mr. Storm also identified the deceased mechanic
who removed the damaged shroud as his brother Henry Storm, and confirmed
that they both worked the second shift at the time in question (Tr. 536).
Wayne Vik, testified that he is employed by the respondent as a
mine foreman, and also serves as the Union labor representative. He
confirmed that at one time the company had an old iegis Ruff-Buff bagging
machine, and subsequently purchased a new one. He did not know when
the new one was actually installed, but knew that it had been in the plant
for a number of months (Tr. 538). He confirmed that during the period
January to May of 1981, he had occasion to go through the plant on a daily
basis, and that he never observed the bagger in question without the shroud
on it (Tr. 539). As far as he knew, the shroud was always affixed to
the bagger (Tr. 539).

1098

Mr. Vik testified as the labor representative, he was present
during the time MSHA Special Investigator Dennis Haeuber interviewed
employees George Storm and Otha McKee (Tr. 539). Mr. Vik stated that
Mr. McKee told him that in response to one of the questions asked by
Mr. Haeuber;, he (McKee) gave a "wrong answer" because he didn't fully
understand the question. However, Mr. Vik could not say which particular
question or answer confused Mr. McKee (Tr. 542).
On cross-examination, Mr. Vik confirmed that in May 1981, he was
the underground foreman, but spent the morning in the mill and the rest
of the day in the mine, and he conceded that he was not always around
the mill area (Tr. 547). Mr. Vik stated that he was present during the MSHA
special investigator's interview with Mr. McKee, but he could not recall
the date. MSHA's counsel quoted several "questions and answers" from a
copy of that interview, and in respnnse to a question as to whether he
recalled Mr. McKee's responses, Mr. Vik stated that he vaguely remembered
them, but took no notes. He also stated that while he discussed the
interview with Mr. McKee the next day, he could riot recall the specific
question that Mr. McKee had in mind when he said he gave a "wrong answer"
(Tr. 449-550).
Inspector Lalumondiere was recalled by the Court, and he confirmed
that exhibit P-15, a copy of his field notes made during the inspection
in question, reflect the dates that he found on the bagged ruff-buff
product which he found on the pallet by the machine. He confirmed further
that Mr. Schmarje acknowledged that the dates shown on the baggs on
question reflected the dates on which the materials were bagged by the
machine. When asked if Mr. Schmarje was questioned as to whether the dust
shroud was on or off the machine on each of the days.that the machine
was used to bag the materials found on the pallet, he responded as
follows (Tr. 576-577):
JUDGE KOUTRAS: Did he tell you, also, that on the
dates that those, reflected on those bags, that when
that material was bagged, that the shroud was off it
and he knew it was off it? Like, for example, that
December 1980 date on there.
THE WITNESS: On the dates that are in question here,
I asked him if he had run this bagger on this date.
He said, "Yes, I had." I asked him why isn't the
shroud on. I said, "Had you had it on there?" We
specifically asked him--he was asked, yes.
JUDGE KOUTRAS: You asked him, "Did you use this
machine to bag this material on December--on November 12,
1980?"
THE WITNESS:

On these different dates--

1099

JUDGE KOUTRAS (interrupting):
machine was used to bag it."
THE WITNESS:

He said, "Yes, the

Yes, sir.

JUDGE KOUTRAS: And then you asked him a follow-up
question, "Was the shroud on the machine on these
dates?"
THE WITNES$: I don't remember exactly how I asked
him the question. I asked him if he had put the
shroud on when he bagged it, and he said that he had
never put the shroud on.
JUDGE KOUTRAS: He said he never put the shroud on
when he bagged this material on those dates?
THE WITNESS:

That's right.

JUDGE KOUTRAS:
THE WITNESS:

That's what he told you?
Yes, sir.

JUDGE KOUTRAS: Why is it that in your notes anywherethis seems like a pretty incriminating statement on
his part. Why wouldn't you put that in your field notes?
THE WITNESS: Well, if I had to do it over, I'd put a
lot more things in them, sir, but-MR. SMITH (interrupting):
statement.

It is in the inspector's

THE WITNESS: I believe I put it in the inspector's
statement that he stated that he had used it.
JUDGE KOUTRAS: Using it is one thing but using it
without the bagger is another.
THE WITNESS:

Used it without the shroud.

JUDGE KOUTRAS:
THE WITNESS:
MR. SMITH:
exhibits.

On all those dates?
Yes, sir.

I think it's one of the respondent's

When asked about his "inspector's statement" (Exhibit R-7), Mr. Lalumondiere conceded that there is no documentation for the alleged
"admission" by Mr. Schmarje that the bagging machine was operated without

1100

a dust shroud when each of the bags found on the pallet were bagged.
Mr. Lalumondiere also conceded that his inspector's statement does not
reflect any admission by Mr. Schmarje that he made such a statement
(Tr. 578). However, he insisted that Mr. Schmarje did admit "that he
never put the shroud on" (Tr. 579).
Mr. Lalumondiere conceded that he was not in the plant on each
of the days that he noted the machine was used to bag the ruff-buff,
and he confirmed that the reason he did not issue any citations on
the days he observed the dust shroud off the machine was that it was
not in use on those days (Tr. 581). He also confirmed it was possible
that the shroud was off the machine and lying on the floor because the
machine was not being used. However, when he found the dates on the bags
indicating that the mach~ne had been used, he questioned Mr. Schmarje's
prior assertions that the machine had not been used (Tr .. 582).
Mr. Lalumondiere also conceded that his "inspector's notes" do not
reflect any notations concerning his observations that the shroud he
observed was "gathering dust". He also confirmed that Mr. Schmarje said
nothing to him about the shroud being bumped or damaged by a fork lift
(Tr. 585), and in response to additional questions stated as follows
(Tr. 588-589):
JUDGE KOUTRAS: O.K. You walked in the mine and you
saw the shroud over there on three or four different
occasions.
THE WITNESS:

Right.

JUDGE KOUTRAS: When I asked you why you didn't issue
a citation and why you just simply brought it to
Mr. Schmarje's attention, your response was, "I
didn't issue a citation, Judge, because they weren't
using the machine."
THE WITNESS: Well, I think I better clarify that.
I said, maybe you didn't understand me, that I wouldn't
issue a citation because this was a new machine, it was
installed, and according to what he told me, they were
still in the process of getting things working to the
way they should on there.
JUDGE KOUTRAS:

I see.

THE WITNESS: Therefore, I would not issue a citation.
When you· get into one where they operate it all the time
and you go in there and there's evidence of it, then
it's a different situation.
JUDGE KOUTRAS: If you had not found those bags with
those dates on them, you wouldn't have cited them?
THE WITNESS: No, sir, I would have had no indication that
he was using it. I would have no reason to believe he
was using it.

1101

Depositions
By agreement of the parties, and with leave of the Court, depositions
of additional witnesses were taken by the parties and were submitted and
accepted for the record. The deposition of former MSHA Special Investigator
Dennis Haeuberwas taken by petitioner's counsel on November 3, 1983.
Mr. Haeu~r confirmed that he is presently employed as Safety Director by
Mulzer Crushed Stone Company, Tell City, Indiana. Included as exhibits to
Mr. Haeuber's deposition are the following documents:
1. Mr. Haeuber's investigative report dated July 11,
1981, concerning his "Investigation of a Possible Knowing
and Willful Violation at Tammsco Inc."
2. A one page handwritten notation made by Mr. Haeuber
during his investigation.
3. A memorandum prepared by Mr. Haeuber, dated May 18,
1981, concerning a conversation with Inspector Lalumondiere.
4. A copy of an interview conducted by Mr. Haeuber with
Harold Schmarje on June 17, 1981.
5. A copy of an interview conducted by Mr. Haeuber with
John Norton on June 17, 1981.
6. Handwritten notations made by Mr. Haeuber during the
aforementioned interviews, including a handwritten "addendum"
memorandum prepared by Mr. Haeuber concerning the results of
laboratory tests conducted on ruff-buff samples obtained by
Inspector Lalumondiere on August 5, 1981.
Mr. Haeuber confirmed that he conducted the special investigation
in question and that all of the documents affixed to his deposition are
part of his official report of investigation. He confirmed that on
May 18, 1981, he and Inspector Lalumondiere had a conference concerning
the inspection of May 7, 1981, and that Mr. Lalumondiere told him that
Mr. Schmarje had admitted to him that he knew that the cited condition
existed, but that he had to produce or stockpile the ruff-buff product.
Mr. Haeuber also confirmed that after his interview with Mr. Schmarje
on June 17, 1981, Mr. Schmarje stated that "it was quite obvious that
the ruff-buff bagging machine had been in use without the shroud being
in place. We would not deny that fact, but we believe that the ruff-buff
product is heavy enough to stay out of suspension" (Tr. 8). Mr. Haeuber
stated that he made a notation of that statement, and it is included as
an exhibit to his deposition (.Tr. 10).
Mr. Haeuber confirmed that he also interviewed Otha McKee and Lee Kirby,
but that Mr. Norton was the only person who returned a statement to him,
and Mr. Norton made some corrections and additions to his statement, and
they are reflected by circles on the file copy. Mr. Haeuber also confirmed
that at different times during his special investigation, both Mr. S~hmarje
and Mr. Norton took the position that the plant dust control plan of

1102

April 14, 1980, was superseded by a revised plan which had been submitted
to MSHA during a meeting with Congressman Paul Simon (Tr. 13). Mr. Haeuber
stated further that to the best of his knowledge, everything that is
contained in his report of investigation of July 11, 1981 is true.
Mr. Haeuber stated that at no time during his interview with Mr. Schmarje
did he in anyway indicate that the dust shroud was on the ruff-buff bagging
machine everytime it was operating. ln fact, Mr. Haeuber stated that
just the opposite is true, and that Mr. Schmarje admitted that the shroud
was off the machine when it was operated, and he explained that it was
off because the April 14, 1980 dust plan had been superceded, and that
the shroud was not needed because the silica materials were coarse and
would not be suspended in air (Tr. 16). Mr. Haeuber also stated that
at no time during the interview did Mr. Schmarje inform him that the
bagging machine had been run into by a forklife or that the shroud had
been knocked off (Tr. 17, 23).
With regard to the changes made by Mr. Norton on his interview statement,
Mr. Haeuber stated that the date-stamp on the front of the statement reflects
that it was received in his office on July 22, 1981 (Tr. 32). Mr. Norton's
addition to his statement indicating that the shroud had been damaged was
the first time anyone had mentioned this (Tr. 33).
On cross-examination, Mr. Haeuber confirmed that from 1978 to 1981, he
inspected the respondent's plant less than.ten times, and that Mr. Lalumondiere
also inspected the plant during those years and that they would be on
inspections together (Tr. 71). Mr. Haeuber also confirmed that he assumed
the duties of a "special investigator" or "safety and health specialist"
in July 1979 (Tr. 74), and that the only two silica mines he inspected
were Tammsco and Illinois Mineral (Tr. 76).
Mr. Haeuber explained the procedure for initiating a special
investigation, and he confirmed that after Inspector Lalumondiere issued
the section 104(d)(l) citation, they discussed the citation, and Mr. Haeuber
then recommended an investigation by filling out the "willful violation review"
form which is attached as·an exhibit to his deposition (Tr. 100). His
investigation actually began on June 17, 1981 when he visited the plant to
conduct his interviews, and on that day he met with Mr. Schmarje and
Mr. Norton and explained the procedures he would follow in conducting his
investigation (Tr. 106-108).
Mr. Haeuber stated that after Mr. Norton's corrected statement reflecting
his assertion that the machine in question had been damaged was received
in his office, he spoke to no one about the statement and did not pursue the
matter further. He stated that he assumed his complaints processor sent the
statement to MSHA's office in Arlington, Virginia, and he explained why
he did not pursue the matter further as follows (Tr. 136-138):

Q.· So, it's your testimony that knowing this, of the
damage of the shroud or at least the possibility of
it, you discussed it with nobody?

1103

A. The report was already sent in.
an addendum.

I just added

Q.

Still, you discussed it with nobody?

A.

I didn't need to.

Q.

You don't think it has a bearing on these proceedings?

A.

It's an alleged.

*

*

*

*

Q. Given this allegation, Mr. Haeuber, wouldn't you think
it reasonable to pursue it?
A.

No, I do not.

Q.

Why not?

Would you explain that?

A. Because, for one thing, Mr. Schmarje already indicated
that he knew the shroud was off and continued to let the
machine operate. For the second thing, this thing . • •
this correction that Mr. Norton made was only hearsay. I
don't think it was pertinent to the investigation or to the
case. And if it came out, let it come out in court.

Q.

So, it's your feeling that the allegation of damage
to the shroud, at or about the time of the violation, is
not pertinent to the case?

.MR. SMITH:
He didn't say that. He included it with his report
for everybody to see.

Q. In other words, you didn't investigate the possibility
of this being a fact, is that right?
A. All the facts that were obtained during the interviews
indicated that there was no damage to the shroud. There
was nothing mentioned about damage to the shroud. Not one
word.

Q. Did you investigate the possibility of the truth of that
allegation?
A.

What do you mean?

Q.

Did you do anything about it once you knew it?

A.

No, I did not.

1104

MR. SMITH:
Except, you included it as part of your report?
A.

As an addendum, ¥es.

Q.

What report did you include that in?

A. It would have been sent to Arlington, Virginia, in the
Final Report of the investigation into the 104(d)(l).

Q. You included the shroud damage allegation in a report
· to Arlington?
A. I would have included the copy of the interview that
Mr. Norton sent back to the Vincennes office. I would have
sent that or had my Complaint Processor send that to Arlington
to be included in their copy of the investigation.

Q.

And when would you have done that, Mr. Haeuber?

A.

I don't know when my Complaint Processor did it.

Q.

Would you have done it at or about the time you received
the corrected statement?

A.

Sure, sure.

I would say so.

In response to further questions, Mr. Haeuber stated that on previous
occasions when he was inspecting the plant for leaks in the duct work or
emissions, he would take respirable silica dust samples. However, he
denied that he ever directed anyone to take any dust samples after the
citation was issued by Mr. Lalumondiere, but was aware of the fact that
such samples were taken, and that he included those results as part of
his report by the memorandum which is attached to his deposition (Tr. 174-175).
In a separate continuation of Mr. Haeuber's
attached the following documents:

depos~tion,.there

1.

List of exhibits.

2.

Mr. Haeuber's notes and interviews with Otha McKee and
Lee Kirby.

is

Respondent's Mill Operator, Otha McKee was interviewed by Inspector
Haeuber on June 17, 1981, and a copy of that "question and answer" interview
is a part of the record in this case, and it is also attached to Mr. McKee's
deposition taken by petitioner's ca"unsel on November 3, 1982. Pertinent
portions of that interview are as follows:

1105

Q.

Who instructed you to operate the Rough Buff bagging machine?

A. I don't remember. Several people were in the lunchroom before
shift and in general conversation someone said we're running
Rough Buff this evening.
•

Q.

Were you aware that when this bagging machine is in operation,
that a shroud and ductwork. shall be connected into the dust
collecting system?

A.

No.

Q. Did anyone tell you that the shroud was supposed to be in
place when this bagging machine was in operation?
A.

No.

Q. Are you familiar with the company dust control plan as submitted
by Tammsco, Inc. to the Mine Safety and Health Administration?
A.

Yes.

I wasn't really familiar with that particular item.

Q. How long had you had experience operating the Rough Buff
bagging machine before the citation of May 7, 1981?
A. I don't think that the Rough Buff bagger was operated more
than several times prior to that date.

Q.

Was the shroud ever in place when you were operating the Rough
Buff machine?

A.

Yes, after the citation was issued on May 7, 1981.

Q.

Do you know what percent.silica the Rough Buff product
contains?
A.

No.

Q.

Do you have any idea what airborne respirable silica bearing
dust does to human lungs?

A.

Ye~.·

Q. Do you believe that when you were operating the Rough Buff
bagging machine without the benefit of a shroud and ductwork
to the dust collector that when you were bagging the product,
you were afforded all the protection available?
A.

Yes.

Q.

What type of protection were you afforded?

110.6

A.

Respirators.

Q.

During normal bagging operations with the shroud in· place,
is there a large quantity of dust present?

A.

No.

Q. You've had the opportunity to operate the Rough Buff bagger
with the shroud off and with it in place. Can you see any
difference in the airborne dust?
A.

I can't see any great differenc.e.

Q. Is there anything else that you can think of that we haven't
discussed that might aid in the conducting of this investigation?
A. This plant pays more attention to training to make employees
aware of hazards of silica.
In his deposition, Mr. McKee claimed he was confused about Mr. Haeuber's
use of the term "shroud", and while he specifically rememberd the shroud
being in place after the citation issued, he stated that he could not
recall whether it was in place when he operated the machine, and when
asked whether he specifically recalled operating the machine two days
before the citation issued, he stated he could not recall (Tr. 11). He
also confirmed that he did not return a signed copy of the statement
because he believed that it was inaccurate (Tr. 12).
Mr. McKee stated that he was not present during the inspection of
May 7, 1981, and did not know when the violation was cited. He learned
about the incident for the first time when he was interviewed by Mr. Haeuber,
and he reiterated that he could not recall whether the shroud was on the
machine on May 5, 1981 (Tr. 22).
The deposition of respondent's mechanic Lee Kirby was taken by the
petitioner on November 3, 1982. Mr. Kirby confirmed that he was previously
interviewed by Inspector Haeuber on November 18, 1981, and identified his
"question and answer" statement of that date, and a copy is attached
to his deposition. Mr. Kirby could not recall what he did with the' statement
sent to him by Mr. Haeuber for his signature, and Mr. Kirby was questioned
by petitioner's counsel about the following questions and answers which
appear on the statement in question:

Q.

As a maintenance man, have you had the opportunity to work
on the shroud and ductwork on the Rough Buff bagging machine?
When?
A.

Yes.

Q.

Prior to May 5, 1981, did you disconnect the collecting
shroud and ductwork at the Rough Buff bagger?

1107

......

A. The Rough Buff bagger and Neosil bagger were swapped or
changed, but the Rough Buff bagger was not put back into
service then.

Q.

Who gave you orders to do this work?

A.

Harold Schmarje.

Q.

Who.do you take your orders or instructions from?

A.

Harold.

Q~
Have you seen the Rough Buff bagger in operation in the
last two months?

A.

Yes.

Q.

Would that have been before or after May 7, 1981, when.
the citation was issued?

A. It would have been after May 7, 1981, when the shroud
was on.

Q.

Do you know the approximate date when the Neosil and Rough
Buff baggers were swapped?

A.

Possibly the first of the year, maybe January.

Q. Were you instructed to connect or to I.eave diseonnected
.the shroud and ductwork of the Rough Buff bagger?
A. I think it was on for a period before May 7, 1981, but
then the shroud and ductwork were removed for some .reason and
never replaced.

Q.

Who gave you these instruction?

A. I would not know for sure because I was not involved in
· taking it off.
When asked whether he.remembered the questions and answers, Mr. Kirby
replied "I don't remember. It's been so long, I actually don't" (Tr. 9).
Mt. Kirb)7"stated that prior to May 7, 1981, the bagging machine in question
was disconnected and "sitting in the corner" and the shroud was off, but
he could not recall how long it was there (Tr. 10). The ruff-buff machine
was eventually exchanged for a neosil bagger.
Mr. Kirby confirmed that he d:i,d not know Inspector Lalumondiere. He
also confirmed that prior to May 7, 1981, the ruff-buff machine was not
connected, and the dust shroud was off the machine and he observed it
lying in the corner (Tr. 11). He stated further that prior to May 7, 1981,

1108

he observed the shroud on the new ruff-buff bagging machine, but could
not recall the date. He also stated that the shroud was knocked off
the machine, and while he indicated that "it couldn't be over a day at
the most, if at all", he stated that he simply couldn't remember (Tr. 13).
When asked to resolve the apparent contradiction in his prior statement
that the shroud was "removed", and his present statement that it was ·
"knocked off", he explained that the shroud had been hit and bent, and
while he personally did not see the condition of the shroud Paul Riston
told him that it had been hit. He also stated that he was not involved
in the shroud repair work (Tr. 16). When asked whether he observed the
ruff-buff bagger on a daily basis, Mr. Kirby responded that he "didn't
pay any attention to it" (Tr. 17). He confirmed that he personally did
not observe the shroud, and was simply told that it was knocked off (Tr. 18).
Mr. Kirby stated that at some point in time a new or different ruff-buff
bagger was put into production and that he and someone else installed a
shroud on it as soon as it was put into production. Subsequently, when
the ruff-buff bagger was exchanged for the neosil bagger, the machine and
the shroud were disconnected and were placed "over by the door in the corner".
The ruff-buff bagger was again moved back into production, and he and
Henry Storm put the shroud back on, and the machine continued to operate
with the shroud attached. He next worked on the ruff-buff shroud when
he and Ernie Butler put the shroud back on after Mr. Riston told him that
it had been ~ocked loose (Tr. 19-21). In summary, he stated that there
were two occasions when he and Ernie Butler put the ruff-buff bagger
shroud on, and one occasion when he and Henry Storm put it back on. In
the meantime, the shroud and the bagger were "sitting over in the corner"
(Tr. 22).
Mr. Kirby stated that he did not· know whether the shroud was on
or off the machine when it was operated by Mr. McKee on May 5, 1981, and
he confirmed that he could not personally state whether or not the
shroud was on the machine everytime it was used prior to the time of the
inspection (Tr. 24).
Neil Handley, employed at MSHA's assessment office in Wisconsin,
was deposed by respondent's counsel on November 4, 1982. In reference
to a telephone conference held on July 21, 1.981, with regard to the
citations in question, he stated that he could not recall a conversation
with Mr. Schmarje on that day, but confirmed that he has had a number
of conversations with Mr. Schmarje in the past. Mr. Handley confirmed
that he spoke with MSHA Inspector Roesler about the citations sometime
in July 1981, and Mr. Roesler confirmed that the dust shroud was off the
ruff-buff machine at the time of the inspection in question (Tr. 6).
Mr. Handley denied that he ever spoke with Mr. Slade or with Mr. Petrie,
and he identified his "conference worksheet", a copy of which is attached
to his deposition. He confirmed several notations he made on this document,
and the notations reflect that Mr. Handley "talked to Ray Roesler and
Dennis Haeuber. Roesler says that during the inspection Mr. Schmarje
admitted he knew this shroud was not in place. Dennie Haeuber indicates
that during his special investigation similar information was developed"
(Deposition Tr. 15-17; exhibit 1). Mr. Handley's notations also include
a statement "talked to Mr. Schmarje and informed him no adjustment would
be made in the proposed assessment".

1109

James Petrie, MSHA Industrial Hygienist, Arlington, Virginia, was
deposed by respondent's counsel on November 4, 1982. He was shown copies
of exhibits P~20, P-21, and P-22, which are copies of respondent's dust
plan and an exchange of correspondence between respondent and MSHA, and
he denied ever seeing exhibits P-20 and P-22 prior to November 4, 1982,
and he stated that the first time he saw exhibit P-21 was when MSHA's
counsel Smith showed to him on October 29, 1982.
The deposition of Dr. Aurel Goodwin, MSHA's Deputy Administrator
for Metal and Nonmetal Mine Safety and Health, Arlington, Virginia, was
taken by respondents' counsel on November 4, 1982, and it is a matter
of record in this case. Dr. Goodwin was asked to identify a number of
documents which are labeled RD-1 through RD-22, they are included as
exhibits to his deposition, and some of them are copies of exhibits made
a part of the record during the hearing in this case.
Discussion
Background and history concerning respondent's silica dust problems.
TAMMSCO, INC., the corporate respondent in this case, is an Illinois
Corporation engaged in the processing and sale in interstate commerce
of various grades of silica products. The company Mill is a silica-producing
plant, operated since 1973 by the Corporation, and Mr. John Norton is
president and sole stockholder. Respondent Harold Schmarje has been plant
manager since approximately February of 1980, and during the material times
involved in this case in 1981, he supervised a work force of approximately
17 to 22 miners. In 1981, approximately 16,000 to 17,000 tons of silica
was produced by the plant, utilizing some 45,000 manhours, and the plant
is usually operated two shifts per day, five days a week. The primary
use of the silica product is for the processing of paints, and the material
involved in the instant proceeding is "ruff-buff", and respondent asserts
that it is the "coarsest product manufactured by the company".
The silica bearing ore is extracted from underground mines located
several miles from the plant and mill site and it is transported there
by truck. At the mill, the ore is crushed by means of a pulverizer, and
the crushed ore is conveyed to a kiln dryer where it is heated, and then
through a series of pebble mills for fine grinding. From these mills,
the finely ground material is conveyed or "air swept" through air classifiers
where it is separated by specification into various product grades. The
various grades of materials are then conveyed to large storage bins by
bucket elevators, and then to large cone shaped hoppers located above, and
attached to, three bagging machines or "bagging stations" for packaging.
After packaging or "bagging" at the "bagging stations", the material
is placed on pallets and then transported by forklift truck to the warehouse
for storage to await sale and shipment by rail or truck to customers.
At the time the citation issued on May 7, 1981, there were three
bagging stations in the mill building: dual spout, neosil, and ruff-buff.
The mill itself is a building of about 100,000 square feet, and it is
separate and distinct from the crusher building and the warehouse, which

1110

is as large and an extension of the mill facility. The ruff-buff bagging
machine in question has been described as air powered and equipped with
a small plastic nozzle, over which the bag is fitted. Behind the nozzle
is a scale which "trips" the machine off at the desired weight, normally
fifty pounds. The bagger is designed to be equipped with a hood or shroud
device which is connected to a central dust collections system. The
shroud acts as a vacuum to collect fugitive dust which not only protects
the worker, but preserves the product. Photographs of the machine are
part of the record here, exhibit P-17 through P-19.
The record in this case reflects that MSHA's interest in respondent's
silica producing plant began sometime in 1973 when it inspected the facility,
began sampling the silica dust, and as a result of those tests, began
issuing notices, citations, and orders for noncompliance with the requirements
of the mandatory dust standards found at 30 CFR 57.5-1 and 57.5-5. According
to the testimony of Max Slade, he first became aware of the silica dust
problems at the plant in 1976, and he was concerned about the respondent's
poor dust compliance record, as well as its advertising claims that its
product was an amorphous type silica and not as harmful as the crystalline
type silica. Since MSHA's laboratory analysis reflected that it was the
more harmful type (crystalline), MSHA requested that the National Institute
for Occupational Safety and Health (NIOSH) conduct an environmental and
medical survey study of current and former employees of the plant to
determine if workers were currently being exposed to hazardous levels
of silica dust and to determine the prevalence of silicosis among current
and former workers. That study was conducted on July 23, 25, and 26, 1979,
and the results are part of the record in this case (Exhibit P-5).
Following the NIOSH study, respondent's plant was effectively shut
down by MSHA on October 10, 1979, through the issuance of section 104(b)
withdrawal orders because of the respondent's failure to comply with a
number of outstanding dust violations which had previously been issued
during February, ~eptember, and November 1979. The citations were issued
because six of the occupations tested at the plant were found to be out
of compliance with the applicable dust standards, and without those six
occupations working, the plant could not operate. Exhibit P-2 is a six-page
table listing the notices, citations, and orders served on the respondent
for violations of section 57.5-1 and 57.5-5 from 1974 to May 7, 1981.
MSHA's closing of the plant in October 1979, resulted in a series of
meetings and exchanges of connnunications and correspondence between the
respondent, one Congressman, MSHA's local and National enforcement and
staff person~el, MSHA's legal counsel, respondent's legal counsel, and
officials of the Union representing the plant employees. My personal
observation, after reviewing and wading through the voluminous record in
this case, is that this flurry of activity came about because: (1) NIOSH's
characterization of the silica dust problems at the plant as "an innninent
danger" caught MSHA's attention, and MSHA wished to insure compliance
with the applicable dust standards; (2) the plant closing caught respondent's
attention, and respondent was seeking a way to stay in operation while

111.1

still addressing the dust problems; (3) the Union wanted to insure continued
operation of the plant and wished to avoid any permanent shut down which
would result in loss of employment; (4) legal counsel on both sides were
attempting to address the problem, while at the same time advising their
clients as to various enforcement and compliance possibilities, and (5)
the Congressman's office wished to resolve the issues while addressing
all -.of these concerns.
In order to comprehend the scope and magnitude of MSHA's enforcement
efforts at the plant in question, I deem it appropriate to review the
record of the citations, notices, orders, and other enforcement actions
taken by MSHA's inspection force prior to May 7, 1981, the date on which
the citations in the instant proceedings were issued. In this regard,
included among exhibits P-16 in these proceedings are copies of four
citations issued by Inspector Jack Lester on March 20, 1979, each of which
charge a violation of mandatory standard section 57.5-5, because the
inspector believed that the two-spout bagger, the clean-up man, the crusher
operator, and the mill operator were all out of compliance with the
permissible dust exposure levels (Citation Nos. 365172, 365173, 365174, and
365175). In each instance the inspector noted that even though the
workers were wearing respirators, "administrative or engineering controls
were not being used to control the contaminant and eliminate the need for
respirators". The abatement time for each of the citations was fixed by the
inspector as April 20; 1979, and in each instance the inspector extended
the abatement time several times, up to and including August 10, 1979, and
his justification for doing so is noted as "This dust citation is being
extended on the basis of the company's abatement plan".
On October 10, 1979, Inspector Lalumondiere issued four section 104(b)
withdrawal orders, Nos. 366580, 366581, 366582, and 366583, after finding
that the time for abatement of the previously issued citations of March 20, 1979,
should not be furthe·r extended, and the reason for not extending the
abatement time further is noted as "efforts to control this dust problem
did not warrant further extension". He ordered withdrawal of the entire
milling operation, the entire mill building, the pulverizer crusher, and
the two spout bagger.
On April 14-15, 1980, Inspectors Lalumondiere, Roesler, and Haeuber
conducted an inspection of the plant while it was still under the previously issued closure orders of October 10, 1979, and cop~es of their
report, as well as the actions taken as a result of that inspection are
found in Exhibit P-10. Those documents reflect that the closure orders
were terminated, the citations ·were "reinstated", and the abatement times
were further extended. As justification for these actions, Inspector
Lalumondiere noted as follows:
In accordance with the company's respirable dust
control plan of April 14, 1980, a good faith effort
to install feasible engineering controls is now

1112

being made. Moreover, as noted in that plan an
effective respirator program is being installed.
However, further sampling and evaluation
will be needed to determine if all feasible engineering
and administrative controls have been implemented
or whether present controls have reduced exposure to
below the T.L.V.

*

*

*

In his "field notes" attached as part of Exhibit P-10, Inspector Lalumondiere
made the following notation:
The ruff-buff bagger was just being reinstalled, and
the neosil bagger had a capture velocity of about
350 F.P.M. When we checked the two spout bagger, we
were getting a capture velocity of 400 FPM. This was
considered adequate and within that recommended by
Denver Tech. Support. A new slide had been installed
at the elevator of the crusher to the storage tank
and the leaks in the crusher elevator had been repaired.
When I checked the #3 elevator, the section that had
been leaking so bad before had been replaced. The
clean up in the mill and throughout the warehouse was
·good as it had been washed down. We terminated the
orders and reinstated the (6) six dust citations. When
we got ready to leave the property, we tried to explain
to Mr. Smarje [sic] that the place would have to be kept
in its present condition if he wanted to operate, and
at this time he became very arrogant. Ray told him that
if he did not keep the place in a clean condition and
did not keep his leaks repaired, he could be assured that
he would not operate and we left it at that.
Exhibit P-11 are copies of section 104(b) closure orders issued by
MSHA Inspectors Jack Lester and Bruce Dial on June 27, 1980, and they
all cite violations of section 57.5-5. The areas affected by the closure
orders are shown as "two spout bagger", "fork lift", "mill building", and
"crusher building", and in each instance the inspector noted that "the
company failed to follow the dust control plan submitted to MSHA on
April 14, 1980". Inspector Dial's field notes, included as part of Exhibit P-11,
state in part as follows:

* * Mr. Smarje [sic] came in and said that we picked
a good day to come and shut them down, because everything
was wrong. He also told us that they were not following
the plan that they drew up for wrapping the pallets.
* * We left the property and went to a table in a
park to talk about the orders and write them. While
we were writing the orders a Mr. Norton "owner" came to
the table and ask [sic] what we found. Jack told him

1113

that they were not going by the plan. that he wrote up.
He ask [sic] if we were going to shut them down and we
said .that we were going to issue some orders. He said
that he was going to call his attorney then.

*

* We went back to the plant at 10:10 and issued
the withdrawal orders. Jack spoke with there [sic]
attorney and ~e waited till 10:45 to see if the plant
was being shut down. We left the plant and called.
Ray Rossler [sic] and he told us to return to the office.
Mr. Lester's "field notes" contain the following notations:
Smarje [sic], when asked about plastic wrapping the
palletized material, stated that he had not been complying
with that part of the plan. Only 8 of the 69 pallets in
the warehouse was wrapped. *
* The attorney for
TaIIDilsco talked to me on the phone before we left and
wanted me to call Dr. Goodwin. I informed Smarje [sic]
that I would have to go through proper channels in order
to converse with Dr. Goodwin, and that he would be
contacted after we returned to the office.
Mr. Lester's and Mr. Dial's field notes both make reference to the
"two spout bagger", and they observed that the area around it was being
washed down by employees, but that the dust collector in the catch basin
was plugged up on one of the spouts, but that two men were immediately
put to work on this. No mention is made of the ruff-buff bagger.
On July 1, 1980, Inspector Lester rescinded his previous closure
orders concerning the two-spout bagger and the crusher operator, and
reinstated the citation and extended the ab.atement time. He did so for
precisely the same reasons as Inspector Lalumondiere on April 14-15, 1980
(Exhibit P-16).
On August 20, 1980, Inspector Lalumondiere issued four section 104(b)
withdrawal orders affecting the mill clean-up man, the mill operator,
the crusher operator, and the two spout bagger, as his stated reasons
for doing were "due to the lack of good faith effort being put forth
by operator and failure to follow dust control plan, this citation does
not warrant further extension" (Exhibit P~l6). He also issued withdrawal
orders for fork life operator and the bag stacker for the same reasons
(Exhibit P-12). Mr. Lalumondiere's "field notes", regarding these citations
contain the following notations:

* * * There was a pile of dust about six inches high
behind the two spout bagger where the catch basin had
filled and was spilling over.
* * * There was a bad leak at the neosil feed elevators
and also leaks in· the screw conveyor above the ruff-buff
bagger. A velocity check of the neosil bagger showed
only 100 to 150 FMP and the crusher the same thing.
* * * The main elevator on the roof of the building
for the neosil and ruff buff was leaking at the neosil
slide.

On August 26, 1980, Inspector Haeuber rescinded Inspector Lalumondiere's
closure orders of August 29, 1980, reinstated the citations, and he did
so for the same reasons quoted above (Lalumondiere). He extended the
abatement times to September 29, 1980, and they were further extended to
November 10, 1980, February 18, 1981, April 10, 1981, July 8, 1981,
September 8, 1981, and in each instance the extensions were granted so
that "shift weighted average resampling" could be conducted and the results
"calculated to determine the shift weighted average exposure" of the
occupations in question. Further extensions for abatement were made up
to and including July 6, 1982 (Exhibit P-16).
Exhibit P-14 is an April 13, 1981, memorandum report from Inspector.
Lalumondiere to Mr. Slade concerning a dust survey conducted at the plant
on March 10-11, 1981. Aside from the results of the survey which are
attached to the memorandum, Mr. Lalumondiere presents a narrative summary
concerning his observations, and it includes observations of "piles of
silica dust", "dust collectors venting dust like a steam engine into the
atmosphere", "leaking equipment", "dust blowing everywhere" by the main
elevator for the 2-spout bagger, "only a few pallets were.wrapped", and
he concluded his report by stating that "I could see no great improvement
of the conditions at Tammsco other than the fact that the employees are
more conscientious when it comes to wearing a respirator".
As a result of the dust survey of March 10-11, 1981, Inspector Bruce Dial
issued a citation on April 6, 1981, No. 0500426 (Exhibit P-16), citing a
violation of section 57.5-5 because the laboratory results from the silica
bearing dust for the neosil bagger was out of compliance. Inspector Dial
concluded that a violation existed on March 11, 1981, the day the sample
was taken, but he indicated on the face of the citation form that "this
citation is issued on April 6, 1981." He fixed the abatement time as
July 8, 1981, and Inspector Lalumondiere extended the abatement times to
September 8, 1981, December 8, 1981, and February 25, 1982.
The compliance extensions through February 25, 1982, were made
pending receipt of the results of dust resampling and recalculation
to determine the shift weighted average exposure of the neosil bagger. Thereafter, on March 16 and May 17, 1982, Inspector Donald Baker, after noting
the results of the dust tests for the neosil bagger, extended the time
for compliance to April 26 and July 6, 1982, and in both instances he
noted that the extensions were made "to allow time for additional engineering
controls to be performed", and he also explained the dates on which he
wrote the extensions of the abatement times as "due to the delay in getting
the samples analyzed".
Respondent's "dust control plans".
It should be noted at the outset that there are no mandatory MSHA
regulations or standards requiring a mine operator subject to the mandatory
health and safety standards found in Part 57, Title 30, Code of Federal
Regulations, to submit or adopt any· specific dust control plan, or to submit

1115

such plans to MSHA for review and approval, and Mr. Slade conceded that
this was true (Tr. 353). Thus, absent any such mandate, a mine operator
is free to fashion any plan that he wishes, as long as MSHA doesn't object.
Any objections by MSHA usually take the form of citations and closure orders,
and this forces the operator to review its "plan" so as to achieve "abatement"
until the next inspection. In short, such plans are all too often formulated
by such "trial and error methods", and the evolution of the respondent's
so-called "dust control plan" of April 14, 1980, is in my view a classic
example of this.
Respondent's "dust control plan" is in the form of a letter dated
·April 14, 1980, from John Norton to MSHA's Vincennes, Indiana field office
(Exhibit P-9). The letter states that it is in response from MSHA for a
revised plan, and Mr. Norton agrees to follow the itemized dust control
measures set forth in the letter. Item 4(e) states that "shrouds will be
installed and maintained on all bagging machines". Also included among
the dust control measures are provisions for "clean-up as necessary" to
prevent silica from becoming airborne, "immediate clean-up" of silica
spills, repair of leaks, daily and periodic pre-shift and on-shift
inspections by a supervisor, dust control measures for equipment, and
measures to insure personal respiratory protection for all employees.
Attached to the exhibit is a December 18, 1979, Tammsco Inc. notice to
all employees concerning the company's program for the use, cleaning and
repairing of respirators.
Inspector ·Lalumondiere's testimony reflects that the "plan" came
about after one of .the respondent's competitors, Illinois Minerals Company,
faced with a closure order from MSHA for noncompliance with the same dust
standards, asked for an expedited hearing. According to Mr. Lalumondiere,
after the start of the hearing, the parties reached a compromise agreement
which permitted Illinois Minerals to resume its operation as long as
the company agreed to submit a written "dust control plan" detailing
its proposed dust control methods. Faced with a similar closure situation,
and in an attempt to have his plant reopened, Mr. Lalumondiere stated
that on advice of MSHA's legal counsel, Tammsco's President, John Norton,
was advised that the plant could be re.opened, but only if Mr. Norton
submitted a plan similar to that submitted by Illinois Minerals. At
Mr. Norton's request, Mr. Lalumondiere permitted Mr. Norton to copy
the provisions of the Illinois Minerals plan, and it was subsequently
submitted by Mr. Norton in his letter of April 14, 1980, and Mr. Lalumondiere
stated that both plans were basically the same (Tr. 171-172).
During the course of the hearing, as well as during the taking of
various depositions, respondent's counsel maintained that the respondent's
dust control plan of April 14, 1980, was superceded by a subsequent plan
dated September 23, 1980 (exhibit R-8). Although Mr. Norton makes reference
to both plans in his interview statement filed with Inspector Haeuber, Mr. Norton
was asked no questions concerning these plans by either party during the
hearing, and he gave no testimony on this issue. His prior comments to
Inspector Hawuber concerning the April 14, 1980, plan is an assertion at
page two of his corrected statement that "this plan was dictated to us

1116

by the Mine Safety and Health Administration". His only explanation
concerning the September 23, 1980 plan, was in response to a question
asking him to explain why the ruff-buff bagging machine was allowed to
be operated without a shroud. His response, at page two of his corrected
statement is "The dust co'ntrol plan of April 14, 1980, was superseded by
a dust control plan of September 23, 1980".
I take note of the fact that the September 23d plan does not provide
for any dust control shrouds. In fact, the "plan" consists of four paragraphs, and an attachment which is dated June 20, 1980, titled "Cost to
Upgrade Production", and it appears to be some sort of preliminary cost
analysis for two phases covering the years 1980-1989 and 1989-1990. The
four paragraphs on the face of the plan itself are as follows:
By means of inspection, repair and clean-up, dust
levels will be maintained at or below conditions
existing at the onset of the Mine Safety and Health
Administration PAR program (September 1980).
Above dust levels will be monitored by equipment
specifically designed for measuring respirable dust
and under the supervision of ·a neutral party.
Efforts to bring the plant into dust standard compliance will continue. An overview of the plan to
accomplish this is marked exhibit A and attached
hereto.
Respiratory protection will be provided and the
respirator progr~m will be consistent with American
National Standards Institute requirements for a
respiratory protective program.
In arguing both the existence of the September 23, 1980 plan, and
in support of his assertion that it superceded 'the April 14, 1980 plan,
respondent's counsel produced several documents received for the record
as exhibits R-7, R-8, and R-13. These documents are a letter dated
July 10, 1981, addressed to MSHA's office in Arlington, Virginia, for
the attention of Mr. Slade, a copy of an MSHA "buck slip" or "routing slip"
dated 3/26/81, addressed to Mr. Slade from Inspector Roesler, enclosing
a copy of the 9/23/80 plan, and a document dated August 4, 1981, which
is Mr. Schmarje's "corrected" version of his interview with Inspector
Haeuber in which Mr. Schmarje makes reference to the 9/23/80 plan. In
addition, attached to the deposition taken of Dr. Goodwin is a copy of a
letter dated March 20, 1981, to Dr. Goodwin from Mr. Norton, in which
Mr. Norton makes reference to the September 25, 1980 plan, a letter dated
July 30, 1981, to Congressman Paul Simon from Mr. Norton, in which Mr. Norton
makes reference to the plan, and a letter·dated July 15, 1981, from
Mr. Schmarje to MSHA assessment officer Neil Handley, which also makes
reference to the plan.

•

Mr. Slade denied ever receiving the July 10, 1981, letter addressed
to his attention concerning the second plan, and Dr. Goodwin could not
recall seeing the correspondence referred to by counsel during his deposition.
Further, Mr. Slade testified that notwithstanding any other "plans",
at no time did MSHA ever agree that any engineering controls other than
those stated in the April 14, 1980, letter from Mr. Norton would be
acceptable (Tr. 355).
In response to certain bench questions concerning the two plans,
respondent's counsel asserted that his point in pursuing the existence
of the second plan was to establish that the respondent was acting in good
faith.(Tr. 344). Counsel conceded that the second plan did not repeal
the April 14, 1980, requirement that the dust shroud in question be
maintained on the bagging machine in question as a feasible and acceptable
engineering control (Tr. 344), and he conceded that the shroud was just
such a device (Tr. 345-347). His concern is reflected in the following
colloquy at Tr. 347-349:
JUDGE KOUTRAS: But what you are saying is that
"Judge, if you find for the respondent in this case,
on the fact of this case, and dismiss the citation,
that means we can take all these devices off all
these machines, because we are coming up with a
better--we are coming up with a ten-year plan."

•

MR. COGHLAN: No, I am not saying that, Judge.
I am not saying that at all. I am saying that the
Secretary is obliged to do certain things under
the case law with reference to each plan or submission •
In other words, it would appear as though the
Secretary appears to be continually negotiating. The
Secretary must not continue to negotiate. He has a
duty to expressly tell the operator, "Look, we are not
negotiating. I want to remind you that there is no
revision. There is no refinement. There is no
carryover." We are not talking about that. What we
are talking about is that you are obliged to keep your
agreement. We are not revising it.
Now, in coal, as you know better than I, they have
very definite standards and, in coal, the operator
has some very special remedies, but in metal, nonmetal,
and especially underground, they just do not have it.
There is no statutory authority for the plans.
Now, what concerns me is this: This the one definitely
had overhanging it for many months, in conversation
with various people, criminal sanctions threatened [sic].
I, personally, was advised of this.
JUDGE KOUTRAS:

I understand.

1118

MR. COGHLAN (continuing): --this roundabout way
of making law, whereas where criminal sanctions are
involved, just like Chapter 38 here in Illinois, we
need that type and kind of· certainty, and that the
agent cannot be in doubt when he is -told by the operator,
"Look, do not worry about it. I was in Washington.
There are four more plans going."
JUDGE KOUTRAS: Mr. Coghlan, my only observation to
that is that what MSHA probably could do, and probably
should have done, to dispel! any notion that they are
doing it piecemeal is to shut the plant down and leave
it shut down.
MR. COGHLAN:

So that everybody knows.

JUDGE KOUTRAS: But what happens in the real world is
that the operator will do anything in his power to terminate
that citation. He will promise MSHA the moon. That is
what he did in this case. It is obvious to me in this
letter.
When asked by the Court why there is no mandatory standard requiring
a mine operator to submit a dust control plan, Mr. Slade responded as
follows (Tr. 352-354):
JUDGE KOUTRAS: You know, but I have asked this question
time and time again: Why is there not a standard that
requires them to come up .with a plan?
MR. COGHLAN:
JUDGE KOUTRAS:
the answer?

That is my question.
I will ask it again, Mr. Slade.

What is

THE WITNES~: Because we have never been able to get
one through public hearings and ALJs.
JUDGE KOUTRAS: What do you mean, "ALJs"?
Do you mean
to tell me that the Secretary cannot propose a rule to amend
"57" to include a provision in there that requires a mine
operator in metal or nonmetal to submit a dust control plan?
THE WITNESS: He can propose it, but the objections are
usually so strenuous
JUDGE KOUTRAS:
THE WITNESS:

Has it ever been proposed?
Yes, ·sir, it has.

JUDGE KOUTRAS: Has it ever gone to a rulemaking hearing
before the Administrative Law Judge of the Labor Department,
because we are out of the rule-making business now?

1119

THE WITNESS:

I do not know.

JUDGE. KOUTRAS: In other words, when it is publi~hed in
the Federal Register and the Secretary,gets objections
from the industry, then he just drops it?
THE WITNESS:

In many cases, yes.

JUDGE KOUTRAS: I am talking about the specific proposal,
rule-making, for a requirement that mine operators submit
a plan to MSHA for review.
THE WITNESS: Well, there are Presidential guidelines and
such that demand a reduction in paper work. They demand
to-JUDGE KOUTRAS (interrupting): In my humble opinion, the
lack of such a specific mandatory standard generates more
paper work rather than cutting it down, because what I see
in this case is plans done by correspondence and by law firms
and by Congressmen and by lawyers in the Solicitor's Office.
That is the way these plans are written. I am suggesting
to you, Mr. Slade, that you promulgate a standard that tells
any mine operator, "You are required to come up with a plan
within X number of days of starting to dig that first piece
of whatever you are digging there, and you submit that plan
to MSHA for their review. We will give you suggestions and
the guidelines and, once you go through the filtering process,
there is the requirement."
THE WITNESS: I assure you that the air quality standards under
proposal right now will include that proposal.
Findings and Conclusions
In Docket No. LAKE 81-190-M, the corporate operator Tammsco Inc.
is charged under section llO(a) of the Act with a violation of mandatory
standard 30 CFR 57.5-5. The citation charges that on May 7, 1981, the
ruff-buff bagging machine, which is in use, was not hooked into the dust
collection system of the mill as stated in a dust control plan submitted
by the company on April 14, 1980. In Docket No. LAKE 82-65-M, Respondent
Harold Schmarje, the plant manager, is charged under section llO(c)
of the Act with knowingly authorizing, ordering, or carrying out this same
alleged violation as an agent of Tammsco Inc.
The interpretation and application of the term "knowingly" as used
in the Act has been the subject of litigation before this Commission.
MSHA v. Everett Propst and Robert Stemple, 3 FMSHRC 304 (1981). In MSHA

1120

v. Kenny Richardson, 1. FMSHRC 874 (July 1979; ALJ Michels), 3 FMSHRC 8
(January 1981), the Commission held that the term "knowingly" means
"knowing or having reason to know", and it rejected the assertion that
the term requires a showing of actual knowledge and willfunless to
violate a mandatory standard. In this regard, the Commission adopted
the following test as set forth in U.S. v. Sweet Briar, Inc., 92 F.Supp. 777
(D.S.C. 1950):
'[K]nowingly,' as used in the Act, does not have any
meaning of bad faith or evil purpose or criminal intent.
Its meaning is rather that used in contract law, where
it means knowing or having reason to know. A person
has reason to know when he has such information as would
lead a person exercising reasonable care to acquire
knowledge of the fact in question or to infer its existence.
In Richardson, the Commission held that its interpretation of the
term "knowingly" was consistent with both the statutory language and
the remedial intent of the Act, and expressly stated that "if a person
in a position to protect employee safety and health fails to act on the
basis.of information that gives him knowledge or reason to know of the
existence of a violative condition, he has acted knowingly and in a manner
contrary to the remedial nature of the statute". On appeal to the Sixth
Circuit, the Court affirmed the Commission's decision, Richardson v.
Secretary of Labor, FMSHRC, 689 F.2d 632, decided October 1, 1982. !.._/
The respondents in these proceedings are charged with violations of
mandatory standard section 57.5-5. This standard requires that employee
exposure to harmful airborne contaminants be controlled, insofar as feasible,
by prevention of contamination, removed by exhaust ventilation, or by
dilution with uncontaminated air. Thus, the standard on its face, does
not require the complete elimination of such harmful airborne contaminants.
It simply requires that employee exposure be controlled by prevention,
removal, or dilution, and these control measures are directly dependent
on the development and application of feasible and acceptable engineering
control measures so as to insure that any employee exposure is limited to
or does not exceed those exposure levels mandated by the threshold limit
values mandated by mandatory section 57.5-1. Section 57.5-5, contains
two exceptions. The first exception comes into play if no accepted engineering
dust control measures have been developed. In this case, employees may
work for reasonable periods of time in concentrations of airborne contaminants
exceeding permissible levels as long as they wear respirators, and as
long as the company's "respirator program" meets the requirements of
subsections (a), (b), and (c) of section 57.5-5. A second limited exception
is dictated by the "nature of the work involved", i.e., occasional
entries into contaminated areas while establishing controls, performing
maintenance, or conducting investigations, and in these cases employees
are required to wear respirators.
MSHA has the burden of proof in these proceedings, and it must establish
by a preponderance of the credible testimony and evidence that (1) employee
exposure to harmful silica dust exceeded the permissible levels, and (2)
there existed feasible engineering or administrative controls to control
employee.exposure to such dust, and that these controls were not utilized.

!_I

~· denied, No. 82-1433, May 16, 1983.

1121

The Dictionary of Mining, Mineral, and Related Terms, published by
the U.S. Department of the Interior, Bureau of Mines, defines "silicosis"
as follows at pgs~ 1012-1013:
Lung disease caused chiefly by inhaling rock dust
from air drills. * * * A condition of massive
fibrosis of the lungs marked by shortness of breath
and resulting from prolonged inhalation of silica
dusts by those, as stonecutters, asbestos workers,
miners, regularly exposed to such dusts.
According to the information contained in the preface to the 1973 TLV
Booklet published by the ACGIH, the term "threshold limit values" refer
to airborne concentrations of substances and represent conditions under
which it is believed that nearly all workers may be repeatedly exposed day
after day without adverse effect. These values refer to time weighted
concentrations for a 7 or 8 hour workday and 40 hour workweek, and the
amount and nature of the information available for establishing a TLV
varies from substance to substance.
The specific threshold limit values for contaminants are set out
in section 57.5-1, which adopts by reference the dust exposure limits
set o.ut in the 1973 edition of the American Conference of Governmental
Industrial Hygienists (ACGIH) publication TLV's Threshold Limit Values .
for Chemical Substances in Workroom Air (exhibit P-4). The TLV or threshold
limit value which establishes the maximum exposure for any particular
contaminant is obtained by a formula found in this publication.
Although the respondent in this case initially indicated that it
believed its silica products to be of the amorphous type, the record in
this case establishes that it is crystalline, and the respondent conceded
that this was the case. The TLV formula for crystalline silica is set
out at pgs. 32-33 of the ACGIH TLV Values, exhibit P-4, and in a letter
dated May 21, 1981, from Max Slade to Mr. John Norton, Mr. Slade states
in pertinent part as follows:
In your letter to Representative Simon you say
that, 'the MSHA allowable dust level in the workplace environment total is .1 milligram in eight
hours.' This is a misconception, the MSHA allowable
limit for airborne respirable dust is expressed by
the formula 10 + (%Quartz+ 2), and is listed in
milligrams of dust per cubic meter of air (mg/m3).
For dust containing 50 percent free crystalline
silica (quartz) §he allowable limit would be 10 +
52 or 0.192 mg/m . The average white male under
a moderate work load will breathe approximately 22
cubic meters of air in an 8-hour work day. If this
air contained .192 mg/m3 of dust, a person would
breathe 4.22 milligrams of dust in 8 hours or 21.1

1122

mg per 40-hour week, or 1012.8 mg per 48-week year.
This is some 40 times greater than the amount you
indicated as the MSHA allowable limit.
In order to determine the adequacy of a mine operator's dust control
measures, mandatory standard section 57.5-2, requires that "dust, gas, mist,
and fume surveys shall be conducted as frequently as necessary to determine
the adequacy of control measures". Thus, .it seems clear to me that there
is a direct inter~relationship between the mandatory standards found
in sections 57.5-1, 57.5-2, and 57.5-5, and that the clear intent of these
standards is to provide a regulatory mechanism for addres,sing dust hazards
by establishing requirements for (1) identifying the existence of hazardous
dust levels in the working environment, (2) seeking means to control employee
exposure to such hazards, and (3) providing a means for a mine operator
to address the problem and come up with workable solutions.
Respondents' defense to the citations is the assertion that on May 6, 1981,
the shroud which had been welded on to the ruff bugg bagging machine
was knocked off and demolished by a fork life operator. Further, respondent
maintained that the new ruff buff bagger had been in place since January 1981,
and that it was operated intermittently by Mr. George Storm, who stated
that he never operated the bagger without the shroud (Tr. 218-219). Counsel
also maintained that Mr. Storm had previously told MSHA investigator
Dennis Haeuber that the shroud was always on the machine when he operated
it (Tr. 221). He also maintained that the shroud which was installed on
the new bagger was in fact the shroud which was on the old bagger, and that
after the new one was moved to its present location, the old shroud was
welded on the bagger after some modifications were made to accommodate
it (Tr. 221). He argued further that the plant as it was on July 23, 1979,
was not the same as on May 7, 1981, and that no valid sample was taken
that day to substantiate the violation (Tr. 223).
With regard to the lack of samples, respondent's counsel asserted
that in this case MSHA has the burden of establishing by a preponderance
of the evidence that there was exposure to harmful airborne contaminants,
and while it need not test every machine in the plant, if MSHA believes
that the ruff-buff product in question exposed an employee to contamination
on any given day, it must sample and test the material to support that
conclusion on the day it claims the employee was over-exposed (Tr. 384-385).
Counsel conceded, however, that if samples were taken a few days before
the citation here was issued, and they were found to be out of compliance,
then one can assume that on those days, employees were in fact exposed
to harmful airborne contaminants (Tr. 384).
MSHA's counsel argued that the physical conditions (airborne silica)
of the plant which Mr. Slade and Mr. Lalumondiere observed on the day of
the inspection in question, coupled with the fact that dust samples taken
before and after that date showed the plant was still out of compliance
are important factors in any determination concerning the' presence of

1123

harmful airborne contaminants. In addition, counsel pointed out that
since the NIOSH study, as well as the fact that continuous dust surveys
and samples show noncompliance, the respondent is still mining the same
silica and nothing has changed (Tr. 387).
At the close of MSHA's case in chief, respondent's counsel moved
that the citations be dismissed on the grounds that MSHA has failed to
establish employee exposure to harmful airborne contaminants by means
of prevention, removal, or dilution. Counsel asserted that ~SRA's evidence
failed to establish the exposure necessary to establish the violations,
and that evidence of harmful exposure two years earlier is insufficient
to establish the kinds of violations issued on May 7, 1981. He concluded
that any prior sampling was done at times unrelated to the alleged violations
in question (Tr. 393-394). The motion was DENIED (Tr. 394).
MSHA's failure to test or sample the ruff-buff material in question
MSHA's mandatory air quality standards as found in section 55.5-1,
56.5-1, and 57.5-1, as well as the requirements for controlling employee
exposure to harmful airborne contaminants as found in sections 55.5-5,
56.5-5, and 57.5-5, has been the subject of litigation before this
Commission and the courts, and a review of some of these cases follows
below. In each instance cited, the question of whether MSHA had established
a violation of the airborne contaminant control requirements of sections
55.5-5 and 57.5-5, were dependent on dust samples and tests, based on the
TLV requirements found in sections 55.5-1 and 57.5-1. Further, the question
of whether a particular airborne dust contaminant was "harmful", and
whether employees were unduly exposed to such dusts, has consistently
been determined by testing and sampling to establish that employee exposure
to such dust exceeded the recognized TLV.
MSHA v. Washington Construction Company, DENV 79-371-PM, 3 FMSHRC, 2125,
decided September 14, 1981, involved a_ quartzite quarry in which the
respondent was charged with violations of section 57.5-5, because the
results of the sampling of three miners in regard to airborne contaminants
revealed that they were subjected to harmful exposure based upon the
threshold limit values adopted in accordance with the regulation. The
cited miners were exposed to ten, six, and three times the allowable
limits, and while they were wearing respirators, the evidence established
that accepted engineering control measures (water sprays) could have been
applied in order to control the amount of. airborne contaminants, thus
permitting the respondent to be in compliance without the use of respirators.
MSHA v. Johnson, Stewart & Johnson Mining Company, WEST 79-175-M,
decided August 17, 1981, 3 FMSHRC 1937, involved a citation for a violation
of section 56.5-5, after a pit laborer, who· was sampled for dust exposure
during a period of 445 minutes, was exposed to silica bearing dust in
the amount of .92 milligrams per cubic ·meter. The Judge found that according
to the threshold limit value adopted by the regulations, .42 milligrams per

cubic meter should not have been exceeded. He also found that it
was feasible to reduce the harmful airborne contaminants by use of water
incorporated in the plant's.crusher spray system.
In Climax Molybdenum Company v. MSHA, WEST 79-72-RM, decided
April 16, 1981, 3 FMSHRC 964, Judge Moore took note of the fact that out
of the nine cases involving alleged violations of section 55.5-5, which
he had docketed for trial, eight were dismissed on motion by MSHA on
the ground that there was no evidence to support the citations. With
regard to the remaining case, the citation alleged that the 3uartz-bearing
dust level around a floor jaw crusher operator was 1.02 Mg/m , where the
threshold limit value (TLV) was .49 Mg/m3, and that feasible engineering
or administrative controls were not being used to reduce the dust levels
to the point where respirators could be eliminated. Judge Moore vacated
the citation, and he did so on the ground that MSHA's testing procedures
were flawed and suspect, and that the testimony of its laboratory technician
in support of the citation was confused and unclear.
MSHA v. Pacer Coruoration, DENV 79-257-M, decided by Judge Michels
on August 28, 1979, 1 FMSHRC 1081, involved a citation for an alleged
violation of section 55.5-1, and the citation there charged that a rock
sorter was exposed to silica dust in excess of that permitted under
section 55.5-l(a). Judge Michel's decision contains a comprehensive
review of MSHA's dust sampling procedures, and based on the facts presented
he vacated the citation and dismissed the case on the ground that the sample
results in support of the citation in question contained unexplained wide
variations in the percent of free silica found in the samples, and that
the inaccuracy and uncertainty of the testing methods, as demonstrated
by the record before him, led him to conclude that a violation had not
been established. Although the Commission directed review of this decision
in October 1979, it subsequently vacated its order for review in April 1980.
MSHA v. DiCamillo Brothers Mining Company, WEST 81-210-M, April 21, 1982,
4"FMSHRC 718, involved a citation issued for a violation of section 57.5-5,
after a miner died when he was exposed to an excessive buildup of carbon
monoxide, as determined by tests taken the same afternoon of the accident.
Although the fatality apparently occurred when the ventilation was
''circuited", the Judge held that the operator had an absolute obligation
to insure that the contamination limits set out in section 57.5-5, as
expressed in TLV's, were not exceeded.
In a recent case decided on March 21, 1983, by the 10th Circuit Court
of Appeals, Climax Molybdenum v. Secretary of Labor & FMSHRC, No. 80-2187,
the Court affirmed the Commission's decision in Climax Molybdenum Co.,
DENV 70-102-M, 2 FMSHRC 2748 (Oct. 1980), 1 FMSHRC 1044 (Aug. 1979
decision by ALJ Michels), affirming Judge Michel's dismissal of Climax's
application for review of citations charging it with alleged violations
of the mandatory dust standards found in mandatory standards 30 CFR 57.5-1
and 57.5-5. Judge Michel's dismissal of the case prior to a hearing

1125

on the merits was predicated on the fact that MSHA decided to vacate the
citations and sought dismissal of the case on the ground that it could
not prove that Climax was not using all feasible dust control methods at
the cited mining operation. Notwithstanding MSHA's vacation of the citations,
Climax insisted that it was entitled to a declaratory order interpreting
the cited dust standards and specifying that it was in fact using all
feasible controls. In response to Climax's assertions that it was entitled
to such declaratory relief, the court. made the following observations at page
10 of its "slip opinion":
We recognize that in the case before us, there exists
considerable uncertainty regarding the proper interpretation of the FMSHA dust regulations. We are
sympathetic to the plight of industries that must
structure their operations and make long-term capital
investments in the face of this uncertain regulatory
environment. Nevertheless, the scope of our review
of the Commission's denial of declaratory relief is
limited to a determination of whether the Commission
abused its discretion. In this case, the Commission
provided reasonable justifications for the denial of
Climax's request for declaratory relief. The Commission
noted that the present dust regulations were unclear,
in part, because the government's position on dust
regulation is presently undergoing reformulation.
The Commission may reasonably withhold declaratory
relief in anticipation of a clearer exposition of
government policy. The Commission also suggested that
Climax has shown no special need for declaratory relief;
Climax faces no greater peril than other mining companies
in interpreting the content of the regulations. The
Commission may reasonably choose to reserve its use of
declaratory relief for special cases in order to conserve
its administrative resources. Given the Commission's
justifications, we conclude that it did not abuse
its discretion in denying declaratory relief.
(emphasis
added).
In his post-hearing brief, respondents' counsel argues that MSHA
has presented no evidence whatsoever of any tests made or samples analyzed
at or about the time of the inspection of May 7, 1981. With regard to
the March 10-11, 1981, plant survey and tests made on those dates (exhibit
P-14), counsel points out that the occupations and equipment which were
surveyed are not part of the citation issued on May 7, 1981. As for the
August 21, 1981, ruff buff particle size analysis (exhibit P-6), counsel
points out that this was done after the citation issued. Even so, counsel
points out further that the commercial value of the silica product is
directly in proportion to the degree by which it is refined. Counsel
asserts that the respondent manufactures its product to detailed specifications. The reason for the existence of the process is to change the particle

1126.

size of the raw silica ore deposit, and the finest product manufactured
is almost 100% respirable, i.e., airborne and harmful. Since the results
of MSHA's August21, 1981, particle size analysis of the ruff-buff product
taken from the plant discloses that it is 94% larger than 44 microns, or
almost totally nonrespirable, counsel maintains that MSHA has failed to
explain its contradictory opinion that if the ore comes from the same
dsposit, it is all harmful, i.e., respirable.
)

Respondent's counsel argues further that MSHA's position in this
case that the conditions at the plant have not changed since 1979 is not
supported by the facts. In support of its assertion that the plant
conditions were not the same at the time the citation issued on May 7, 1981,
counsel cites the testimony of John Norton concerning the capital expenditures
made and as detailed in a letter to Dr. Goodwin of June 6, 1980, as well
as Mr. Schmarje's testimony regarding five major inovations since
February 1980 (Tr. 404). Exhibits R-3 and R-12, which are part of
Dr. Goodwin's· deposition, reflect the improvements made at the plant
to address the dust control problems, including completed or ongoing work
with respect to 15 of the NIOSH reconnnendations, and these negotiations
and changes have taken place during the interim period spanning the NIOSH
study and the insp~ction of May 7, 1981 (Tr. 217-219).
Exhibit R-9 i~ a copy of a dust evaluation study conducted at the
plant by MSHA's Denver Technical Support Group during December of 1979, and
January of 1980. At hearing and in his brief, respondent's counsel argued
that these reports establish that due to certain plant modifications and
improvements in controlling the dust, as reflected in this report, the
conditions at the plant as of the time of those reports were not the
same as those which may have existed at the time of the NIOSH study.
Counsel argued that with the dust collecting equipment in place, as shown
in these surveys, the dust levels which may have existed in July of 1979
could not be the same as those which may have existed as of May of 1981
(Tr. 380-383).
In response to counsel's arguments, Mr. Slade conceded that the
respopdent has made improvements and modifications to the plant, particularly
in the Crusher Room. However, Mr.. Slade indicated that the continuing
dust problems stems from the fact that the respondent has neglected the
maintenance and clean-up recommendations. Even though dust control measures
have been taken, and control devices have been installed, it was his
position that the respondent did not properly use or maintain the dust
control devices which it had available (Tr. 382).
·
Mr. Slade confirmed that in a letter to Mr. Norton, he acknowledged
that improvements were made to the dust cont_rol plan and that money has
been spent on some basic controls. However, Mr. Slade was of the following
opinion (Tr. 385):
The maintenance and upkeep and housekeeping of the
plant is rotten. Their attitude toward dust control
is rotten. What money they are putting in is being

1127

wasted because it is not being maintained and the
housekeeping is not being adhered to.
MSHA's post-hearing brief contains no discussion concerning the
requirement for sampling. However, during the course ~f the hearing,
MSHA's counsel took the position that no sampling was required to support
the citation in question because the respondents are not charged with a
violation of section 57.5-1, but are charged with a violation of section
57.5-5, for failure to maintain the engineering controls (shroud) on the
cited ruff-buff bagging machine (Tr. 478). However,'' counsel conceded that
the term "harmful airborne contaminant" means any such contaminant which
does not meet the requ1rements of section 57.5-1 (Tr. 477).
In support of his position that no sampling or testing was required
to support the citation, counsel asserted that ,the bagging machine in
question was an integral part of the plant and that the area around that
machine was not :incompliance with the dust standards at the time the
citation issued on Hay 7, 1981. In addition, counsel maintained that the
evidence establishes that even if the machine were only operated for an
hour or two, it would contribute to the prevailing atmosphere, and without
the dust shroud, the contaminants from the machine would necessarily
contribute to the overall dust conditions which were out of compliance
(Tr. 279).
When reminded of the fact that each of the citations and orders
issued in 1979, 1980, and 1981 (exhibits P-11, P-12, P-16), for violations
of section 5 7. 5-5, were supporte·d by dust samples showing noncompliance,
counsel asserted that the ruff-buff bagger in question was not operated
everyday or for long periods of time, and that different people ·may have
operated it at any given time. Given the fact that the ruff-buff bagger
was located in close proximity to two other bagging devices, and with
men working in that area, the lack of shrouds or the failure to comply
with the dust standards contributes appreciably to the overall over-exposed
work atmosphere (Tr. 484). He also stated as follows (Tr. 485-486):
JUDGE KOUTRAS: But I'm just a little curious as
to how one can determine specifically how much of
a contribution the Ruff-Buff product has made to a
person that's breathing it in if they don't test it.
I mean, to me, that sounds like common sense that they
would test over an eight-hour period--but you apparently
take the position that it contributes and it's all mixed
in together-MR. SMITH (Interrupting): Well, let me say this to
that, as far as I know. You can't force the
operator, to make somebody stand there and make them
be tested for a whole eight-hour period. That's number
one. But they did make an analysis of the Ruff-Buff.
product. That's in evidence and it's been explained
by Mr. Slade and others that, you know, this was respirable
and it was within the limits there.

1128

I'm informed that three pounds, every fifty-pound
bag would be respirable. So you're talking--three
pounds of fi"fty-pound bags, 6 per cent would be
respirable. My colleague wanted me to say that for the
record.
Although Ms. Morring testified that samples of some of the silica
products were taken and analyzed during the NIOSH survey, the ruff-buff
product was not sampled (Tr. 117). With regard to the ruff-buff particle
size analysis conducted on the two samples by MSHA's Denver Tech Center,
as reflected in the August 31, 1981, memorandum (exhibit P-6), Ms. Morring
explained that those test results reflect that 94% of the tested ruff-buff
was not considered to be of sufficient size to render it respirable into
the lung, but it is still considered to be toxic silica. She also
explained that the test.s indicated that 98%, of the remaining 6% of
tested material would be respirable, and when asked whether the 94% found
to be nonrespirable would render it any less a "harmful airborne contaminant",
she responded "yes and no", ·and explained her answer as follows (Tr. 127-128):
THE WITNESS: Yes and no. No, it is not because
at a 44 micron particle it cannot be inhaled into
deep lung where it would cause damage. Yes, because
as a 44 micron particle if any of this spills, gets
stepped on, gets run over, whatever, it is reborn,
so it can be ground down by these actions.
When asked whether her answer would be different if the ruff-buff
tests showed that none of it was respirable, she answer as follows (Tr. 128-129):
JUDGE KOUTRAS: Let me.ask the question another way.
Let's assume you have sampled the material and fourid
that none of it sifted through and none of it was
respirable according to your definition, would an
operator be subject to a citation under this particular
standard for failure to control airborne, harmful airborne contaminants?
THE WITNESS:

I can't answer that.

When asked if she knew what an "air classifier" was, Hs. Morring responded
that "it separates the particles by their organic size". When asked whether
it was possible for such a device to separate particles so that there
would be no "respirable particles", she responded that she was "not that
familiar with the air classifier" (Tr. 117-118). She also conceded that
she had not looked at or read sections 57.5-1 or 57.5-5 (Tr. 69).
Ms. Morring went on to articulate her concern that the normal activities
carried on in the plant around the areas where baggers are located can
cause the nonrespirable silica dust to be reentered into the atmosphere,
and if changes occur in the particle size it could get into the lungs.

1129

She also confirmed that NIOSH's concern is over the fact that the
entire plant presents a problem with employees being over-exposed to
harmful levels of silica dust.
MSHA's position that dust samples and tests are not required to
support the citation in this case is further reflected in the following
colloquy with Max Slade (Tr. 389-391):
JUDGE KOUTRAS: The reason I brought up this particular
example, Mr. Slade, is that I take it them, when I
read in these gravity sheets, I mean these narrative
statements, the inspector's findings, which parrot the
NIOSH study or which parrot some study that says that
silicosis is this and this is that, that when the
inspectors are obviously doing at this plant, for
example, is that they are accepting all of this thing
as gospel and they have regu~gitated in these statements
to support citations of the standard, are they not?
THE WITNESS: I believe, in the case of silica, it is a
world-known fact that respirable silica causes silicosis.
JUDGE KOUTRAS: I am not taking issue with that.
THE WITNESS: So it is each inspector using his own
individual thoughts and knowledge on the hazards of silica.
JUDGE KOUTRAS: Can an inspector go to this plant and make
a determination that silica is not hazardous and not issue
a citation?
THE WITNESS:
JUDGE KOUTRAS:

No, sir.
Why can he not?

THE WITNESS: Well, I guess he could, but he would probably
be questioned on it.
JUDGE KOUTRAS: He is not making that as independent judgment. He is accepting a fact that silica is a harmful
airborne contaminant.
THE WITNESS: Let me rephrase that. An inspector could
go to this plant and say, "Well, I do not think this is a
hazard," and not issue a citat;ion on it.
JUDGE KOUTRAS: What would be the circumstances under which
he would do that?
THE WITNESS:

Ignorance on the inspector's part.

1130

JUDGE KOUTRAS: Would part of the answer be that
he tested and found that they were in compliance?
THE WITNESS: Oh, yes. If they are in compliance,
then they are not exposed to an airborne contaminant.
JUDGE KOUTRAS: But you are saying here that they are
under "continuing noncompliance" and on this very
day they were out of compliance, with these outstanding
citations, and that is why this inspector thought it was
not necessary to even take a sample?
THE WITNESS:

That is right.

JUDGE KOUTRAS:

All right, just so I understand that.

MR. SHITH: Plus the physical conditions that he observed
there on that day of the silica around in the air.
JUDGE KOUTRAS: Now, i f Mr. Coghlan produces the mystery
witness, who sampled the dust on that day and found that
that machine was in compliance, your case goes down the
"tube", does it not?
MR. SMITH:

It sure would.

MSHA's Metal and Nonmetal Mine Safety and Health Inspection and
Investigation Manual, 1981 Edition, contains an entire Chapter 64 dealing
with health inspections and testing and sampling procedures. Chapter 65
of the Manual deals with the procedures to be followed by inspectors when
issuing citations and orders, and the procedures for issuing citations
of health standards are found in Chapter 65, Part II-AA, and the information
contained therein at pgs. 65-AA-l is as follows:
a.

Airborne Contaminants
(1) Procedures for Writing Citations
If mine employees are found to be exposed to
airborne contaminants in excess of the permissible limit defined in 30 CFR 55/56/57.5-1
and the decision is made to issue a citation
55/56/57.5-i and 55/56/57.5-5 shall be treated
as one standard for purposes of issuing the
citation, and only one citation shall be written
as a violation of standard 55/56/57.5-1/.5-5.
The body of the citation must contain all pertinent information, such as the TLV or permissible
limit, the shift or time weighted average (SWA/
TWA), the airborne concentrations of the contaminant,
information on personal protection, the source of
contaminant, the date of the over-exposure, the date

1131

results were determined and the date the
citation is issued and/or the reason for the
over-exposure. Obvious deficiencies or breakdown in the control system for the contaminant
should also be documented.
Chapter 66 of the Manual is devoted to application of the standards
in order to assist inspectors in determining the i~tent and purpose of any
given standard which he may cite. The application for section 57.5-5
is found at pgs. 66-D-l through D-3, and they are essentially the same as
those quoted above, and the application of section 57.5-5 is specifically
conditioned on a finding that exposure to airborne .contaminants is in
excess of the permissible limit defined in section 57.5-1.
There is no credible evidence in this case concerning the mining
employment history of any miner whose environment was measured by any
respirable dust samples from the ruff-buff bagging machine in question.
MSHA's position seems to be that because the shroud may not have been
in place when the ruff-buff was bagged, the contamination from that product
contributed to the overall silica dust environment of the plant as a
whole, as well as in the immediate bagging area, and therefore was
obviously out of compliance with the requirements of section 57.5-5.
(Tr. 232-236). When asked whether any of the miners whose occupations
were out of compliance either before or after the time of his inspection
of May 7, 1981, operated the ruff-buff bagging inachine.which·was cited,
Mr. Lalumondiere responded that "I don't know who was operating the bagging
machine" (Tr. 237). When asked whether any of the social security numbers
for the miner occupations which were out of compliance on May 7, 1981, were
directly related to the cited ruff-buff bagging machine, Mr. Lalumondiere
responded "there would be none of them on that particular bagger, sir,
because they would do a respirable dust sampling by using a dust pump to
determine the TLV and TWA" (Tr. 237). He also indicated that it would
have been "scientifically impossible" for the bagger to be in compliance
without a dust shroud (Tr. 238).
Although he confirmed that several occupations and pieces of equipment
were out of compliance as of the date of the inspection of May 7, 1981,
when asked whether he issued any citations for the "piles of silica dust"
he observed that same ·day, Mr. Lalumondiere stated that he did not. During
a colloquy which followed this answer, MSHA's counsel indicated that "they
cite somebody for the failure to have the controls. That's the standard.
They have to go by what the standard is " (Tr. 235). And, at Tr. 236,
where counsel states "you don't cite each little pile by pile. You cite
it the way they have to do it w_ithin the standards".
Although it is true that at the time the citation was issued,
respondent was out of compliance with the required TLV dust levels for
several occupations and equipment, the fact is that MSHA permitted the
plant to remain operational by extending the abatement times, and in one
instance cited during the hearing, one citation was issued on March 11, 1981,

1132

and the abatement times were extended to July 6, 1982, a period of 16
months. When qsked whether the respondent's noncompliance record iS-based
on the fact that respondent was doing nothing to control its dust levels,
MSHA's counsel responded that respondent was "not doing enough" (Tr. 481).
The fact that the respondent today is still mining the same silica it was
mining in 1979 does not necessarily mean that in any given case the silica
dust is in fact a "harmful airborne contaminant" subject to a citation or
closure order. In response to this very same question, NIOSH expert
witness Morring stated that "it can be with appropriate levels" (Tr. 60).
She also confirmed that she had no knowledge regarding any dust control
improvements or dust surveys made at the plant since the 1979 survey,
and that her testimony was based on the prevailing conditions as of the 1979
survey period (Tr. 110-112).
After careful review and consideration of all of the evidence and
testimony in these proceedings, as well as the arguments presented by the
parties, I conclude and find that MSHA has failed to establish that the
levels of employee exposure to any harmful silica dust generated by the
bagging of the ruff-buff product without the dust shroud attached to the
cited bagging machine exceeded the acceptable threshold limit value mandated
by s.ection 57.5-1. In my view, in order to support a violation, HSHA
must take into account the prevailing conditions as of the time a citation
is issued, and without testing, sampling, or consideration of any improved
dust control measures taken by an operator, I fail to comprehend how it
can expect to establish a violation.
Respondent TAMMSCO's failure to attach the dust shroud to the ruff-buff
bagging machine.
The effectiveness of a dust shroud, and the fact that it is an
acceptable and feasible engineering measure for the control of harmful
levels of silica dust is not in dispute. Further, the parties are in
agreement tht the citation of May 7, 1981, was issued becuase of the
alleged failure by the respondents to insure that the dust shroud was on
the machine when the bagged ruff~buff material which Mr. Lalumondiere
observed during his inspection was bagged. MSHA's evidence in support
of the citation consists of certain "admissions" purportedly made by
Mr. Schmarje to Inspector Lalumondiere during the inspection of May 7, 1981,
in the presence of Mr. Slade and Supervisory Inspector Raymond Roesler.
In support of these "admissions" by Mr. Schmarje, Inspector Lalumondiere
made reference to certain bags of ruff-buff material which he found stored
on some pallets on May 7, 1981. He noted the dates stamped on those bags,
and he claims that Mr. Schmarje admitted that the ruff-buff had been bagged
by the machine in question on the dates stamped on those bags, and that
he also admitted that on each days the materials were bagged, the machine
was used without the shroud attached to it.

1133

· MSHA's position is that Mr. Schmarje admitted that the dust shroud
in question was never on the ruff-buff bagging machine, and since this
was the case, ·any material bagged by that machine was bagged without the
required engineering control. Respondent denies that this is the case,
but suggests that for a few days prior to the inspection the shroud was
off the machine, and the reason it was off was because it had been damaged
by a forklift and had to be removed for repairs. Respondent also suggests
that any bagging of ruff-buff which may have taken place dur_ing a day or
two while the damaged shroud was off the machine came about during the
"necessary work" required to remove the silica from the machine in order
to facilitate the repairs and that these were "exceptional circumstances".
At the hearing held in this case, Mr. Laumondiere testified that while
he did not tour the entire warehouse, there were seven pallets near the
bagger, wit.h fifty bags of material per pallet, and one palle·t had seven
bags of material at the bagger, and the dates on those bags were 11/12/80,
12/12/80, 12/17/80, 1/8/81, 3/27/81, and 5/5/81 (Tr. 211). He confirmed
that he asked Mr. Schmarje about these bags, and that Mr. Schmarje admitted
that the bagger was used on the dates indicated to bag the product, that
he knew the shroud was not in place, and that the dust collector had not
been hooked up because the bagger was going to be moved as soon as the
stockpile was built up (Tr. 212). Mr. Lalumondiere could not recall
whether the dust control plan was discussed with ~1r. Schmarje at the time
of the inspection, and th~ bagger was not in use that day. Abatement was
achieved by installing a shroud and tying it to the dust collecting system,
and he abated the citation when he went back to the plant on May 11, 1981
(exhibit P-8, Tr. 213). A maintenance man told him that the shroud which
had been lying by the door was the one which was installed and that this
took about two hours (Tr. 214).
In a pretrial deposition taken on June 29, 1982, Inspector Lalumondiere
testified that the ruff-buff bags which contained the dates in December,
January, and March, and which he found on the "partial pallet" by the ruffbuff bagging machine on May 7, 1981, the date of his inspection, were not among those
on that pallet, but were among those stacked on the seven pallets stored
in the warehouse. He also testified that the dates found on the partial
pallet by the machine were all dated Hay 5, 1981. When asked why he had
listed the December, January, and March dates as being found on "one pallet",
he replied "no reason whatsoever. That's just rough dra.ft field notes that
I have" (Deposition transcript pgs. 64-68).
In a post-hearing deposition taken by petitioner on November 3, 1982,
Inspector Lalumondiere identified copies of his "field notes" made during
his inspection of May 7, 1981, and he confirmed that at that time Mr. Schmarje
admitted to him, in Mr. Max Slade's presence, that the dust shroud was
not on the ruff-buff machine at the time it was used to bag the materials
shown by the dates on the bags he found stored on the pallets. Mr. Lalumondiere
stated that at no time did Mr. Norton or Mr. Schmarje, or anyone else at
the plant, tell him that the machine had been damaged (Tr. 3). When asked
why his "field notes" (exhibit P-15) do not reflect the admissions by
Mr. Schmarje, he responded as follows (Tr. 5-8):

A. Well, I don't make notes of the exact conversation
that· took place between the two of us. This is notes
here that are strictly worth only something to me.
I can go back through these and recollect things that
went on during that time. And . . .

Q.

In other words, you prepared these notes strictly
for yourself, not for somebody else to cross examine,
is that right?

A.

That's true.

Q.

Now, you wouldn't have • . . you put down there
certain dates that you found the pallets, which indicated
to you that the Ruff Buff bagging machine was operated,
is that correct, sir?

A. These were dates that material had been bagged and
stacked on pallets and stamped with these dates. And
on these, I can remember from looking at these dates . . •
after we talked to Schmarje, he said that's the way they
do it. They stamp the dates on them when they bag.
He said on these dates they had run the Ruff Buff bagger.
And when we asked him about the shr.oud on it, he said, no,
he had never had it on.

Q. Now, it wouldn't have been a violation if the shroud
had been on. So, you just didn't put that down, is
that right? In other words, what does that indicate
to you? My question to you originally was, why didn't
you put Mr. Schmarje's admission down in your notes?
A. Like I said, I didn't put down word for word. I put
on here, on the second page back here, that the Ruff
Buff bagger had never been hooked up to the dust collector.
When shown a copy of Special Investigator Haueber' s depo.sition which
makes reference to a memorandum prepared after speaking with him, Mr. Lalumondiere
was asked whether that memorandum confirms that Mr. Schmarje admitted
that the shroud was not in place when the bagger was being used. Mr. Lalumondiere
responded as follows (deposition pg. 8):
·

Q. And does this confirm what you just said a while
ago, that Mr. Haeuber . • • Mr. Schmarje, rather, did
admit that the shroud was not in place when the
bagger was being used, the Ruff Buff bagger?
A. It says it's indicated to his • • • to him that he
knew the condition existed, yes. That Mr. Schmarje stated
to me that he knew the condition existed.

1135

HSHA.Supervisory Inspector Raymond Roesler did not testify at the
hearing in this case. In his deposition of June 29, 1982, he makes reference
to some "field notes" which he made on May 7, 1981 when he accompanied
Mr. Lalumondiere on the inspection in question. He confirmed that he
told Mr. Lalumondiere to count the pallets which contained ruff-buff and
to note the dates shown on the bags. He confirmed that he observed some
pallets some 15 feet north of the bagging machine, and one partial pallet
by the machine itself "with some bags on i t that had just been bagged a
couple of day's prior" (Deposition pg. 67) •. When asked if she remembered the
dates on that partial pallet, Mr. Roesler responded--"I couldn't say
offhand", "It could be the fifth", and he stated further that "I don't
remember what the conversation was" (Tr. 86). In short, it seems clear
to me that Mr. Roesler simply had no recollection as to the dates on any
of the bags found on the pallets in question.
With regard to the so-called admissions by Mr. Schmarje concerning
the dust shroud in question, apart from the fact that he confirmed that
the shroud was not on the bagging machine in question on May 7, 1981, and
apart from the fact that he confirmed that he saw a shroud lying on the
floor on a previous occasion when he visited the plant, Mr. Roesler
did not testify as to any admissions purportedly made by Mr. Schmarje
to Mr. Lalumondiere on May 7, 1981. As a matter of fact, Mr. Roesler
conceded that on May 7, 1981, Mr. Schmarje made no statements to him
-concerning the use of the machine (Tr. 93). He also stated that while
Mr. Lalumondiere may have spoken with Ur. Schmarje that day, he (Roesler)
could not remember any conversations with Mr. Schmarje, and stated "chances
are very great that I probably didn't" (Tr. 94). Further, when asked
whether he was present during any conversations between Mr. Slade,
Mr. Lalumondiere, and Hr. Schmarje on May 7, 1981, concerning the ruff-buff
machine, Mr. Roesler replied "I was with him, but I couldn't say for
sure what was even said", and that he couldn't remember (Tr. 94).
In view of the foregoing, it seems clear to me, that contrary to
any inference that Mr. Roesler may have heard Mr. Schmarje make certain
admissions concerning_ the dust shroud, Mr. Roesler could not recall any
such admissions or conversations which purportedly took place on Hay 7, 1981,
at the time of the inspection and the issuance of the citation.
With regard to Max Slade's corroboration of Mr. Schmarje's "admissions",
his testimony on this point is as follows (Tr. 334):
Q~

Did you overhear Mr. Schmarje admit that the
pallets that were dated indicated that the Ruff-Buff
bagging machine was operated on those dates?
A. When the pallets were discovered, Mr. Schmarje was
overseeing the repair of the two-spout bagger. We
went to him and spoke.about the condition around the
Ruff-Buff bagger and Hr. Lalumondiere asked him about
the dates on the pallets. I heard him say that, yes,
that was the date that this material was bagged and he

1136

•

asked him why the shroud was not in place and he says,
"well_, we only use it for a short time and, besides, I
wanted to get some material stockpiled, so we could move
the bagging machine."

Q. Did you overhear Mr. Schmarje indicate that they
were going to continue to use it to stockpile?
A. He said that he wanted to get a stockpile built up
so they could take a few days to move the machine.
Inspector Lalumondiere's field notes, as well as his inspector's
statement (exhibit R-7), make no mention whatsoever of any "admissions"
by Mr. Schmarje concerning the use of the cited bagging machine without
the shroud attached. In addition, I find Hr. Lalumondiere's testimony
of record, including his depositions, to be contradictory and confusing
with respect to his documentation of the dates found on the bagged ruff-buff
materials. I also find it quite surprising that during the special
investigation conducted by Mr. Haeuber he asked no specific questions
concerning the dates on the bagged materials. Except for a general question
of Mr. Schmarje as to how much ruff-buff was stored in the warehouse,
the copy of his interview with Mr. Schmarje contains no questions concerning
all of the dates testified to by Mr. Lalumondiere.
The special investigation conducted by Mr. Haeuber in this case leaves
much to be desired. Aside from the fact that none of the statements are
sworn, signed, or dated, some of the critical issues are developed by
broad and general "questions and answers". The lack of procedures concerning
tape recording of the interviews has resulted in serious questions of
credibility and accuracy with regard to the information being developed.
Mr. McKee claims he did not understand some of the key questions asked
and stated that he was confused. Mr. Schmarje's edited version of his
interview (exhibit R-13), was never submitted, and Mr. Schmarje complained
that many of the questions were leading, and that his answers were taken
out of context. Mr. Norton's statement was subsequently corrected and
edited.
The evidence in this case supports a finding that at the time of
the inspection on May 7, 1981, the cited ruff-buff machine was not in
use and that the dust shroud was not attached to the machine. However, I
cannot conclude that MSHA has established through any credible testimony
or evidence that the dust shroud was never installed on the machine, and
that Mr. Schmarje knew it. In this reagrd, I take note of the fact that
the record in this case suggests the existence of an "old" and "new"
ruff-buff bagging machine, as well as the existence of an "old" and "new"
dust shroud, and at times the witnesses were confused as to which was
which. Further, while there is testimony that Inspector Lalumondiere
observed a shroud lying on the floor during inspections prior to May 7, 1981,
Mr. Lalumondiere conceded that he may have been confused when he gave
his deposition (Tr. 225-230), and during the hearing the parties agreed that
the shroud which was described as "lying on the floor" was not the device
the inspector had in mind at the time the citation was issued (Tr. 224).

113~7

I can find no credible evidence in this case to support a conclusion
that Mr. Schmarje in fact admitted to Inspector Lalurnondiere on May 7, 1981,
that the shroud was· off the machine on each of the days that the ruff-buff
materials were bagged. Petitioner's counsel conceded as much (Tr. 498),
but he argued that on each occasion prior to the time the dates were
detected on May 7, 1981, when Hr. Lalumondiere was at the plant and
saw the shroud on the floor, Mr. Schmarje's response was that the bagging
machine was not being used. Counsel conceded that the reason the inspectqr
did not issue previous citations when he observed the shroud lying on
the floor and off the machine is that if the machine is not in use when
he is there, there is no way he can prove a violation. Further, counsel
pointed out that on each occasion when the inspector observed the shroud
on the floor., he took Mr. Schmarj e's word that the machine was not in use.
However, when he found the stamp-dated bags during his inspection of May 7, 1981,
he concluded that the machine had been used on the dates stamped on the
bags which were stored on the pallet next to the machine, and when he
confronted Hr. Schmarje, the inspector claims he (Schmarje) admitted
that, the materials were bagged with the shroud off and that he knew it (Tr. 498501).

Although the record adduced in these proceedings does support a
conclusion that the bagged ruff-fubb materials observed by Inspector
Lalumondiere on May 7, 1981, were bagged by the cited machine on the dates
stamped on the bags, except for the ones dated May 5, 1981, I cannot conclude
from the evidence presented by MSHA that on each of the other dates the
materials were bagged without the use of a shroud.
With regard to May 5, 1981, I believe that the record supports a
conclusion that the dust shroud was off the machine that day, and that the
bagger was used to bag ruff-buff without the shroud in place. Since the
plant in question is a relatively small operation, and since it is obvious
that Mr. Schmarje was directly involved in its operations, and was directly
responsible for supervising· the workforce, I find it rather incredible
that at the time of the inspection of May 7, 1981, he was totally oblivious
or ignorant of the fact that a forklife had struck and damaged the cited bagger.
Since he and MSHA have obviously been at odds with each other about the
dust problems over a long period time, it seems to me that both Mr. Schmarje
and Mr. Norton would have initiated an inquiry immediately on Hay 7th to
document the fact that the shroud had "just been damaged a few days
before". After viewing respondent's witnesses on the stand during their
explanation of the purported damage to the bagger and shroud, I simply
do not believe their account of the purported accidental striking of the
ruff-buff bagging machine two days before the citations were issued.
In addition to my rejection of the respondent's testimony concerning
the alleged damage to the shroud, I take note of the fact that part of
the respondent's defense in this case is the assertion that the applicable
dust control plan in effect at the time the citation issued was one in
which protective shrouds are not mentioned at all. In view of the fact

1138

that the respondent has consistently taken the position that the ruff-buff
machine is not used on a regular basis, and has consistently mainta.ined
that the material and product is the coarsest pro.duced :Ln the plant, one
can reasonably conclude that it is more likely than not that at the time the
ruff-buff was bagged on May 5, 1981, two days before the inspection, it
was bagged without the shroud attached, and that Mr. Schmarje was aware
of this. The "accidential striking of the bagger by a fork-lift" defense
simply supports the conclusion that the shroud was off the bagger on
May 7, 1981, and that respondents knew or should have known that it was
not on the machine.
In view of the foregoing, I conclude and find that MSHA has established
that the dust shroud in question was not on the cited ruff-buff bagging
machine on May 7, 1981, and that the machine was used. to bag the ruff-buff
product on May 5, 1981, without the shroud attached. I further conclude
and find that MSHA has not established through any credible evidence that
the cited ruff-buff bagger was used prior to May 5, 1981, without the dust
shroud attached.
Insofar as Mr. Schmarje is concerned, I conclude and find that MSHA
has established that when the ruff-buff b;agger was used to bag the materials
on May 5, 1981, that Mr. Schmarje knew, or had reason to know, that the
bagger was used without the dust shroud attached. As to any times prior to
May 5, 1981, I cannot conclude that HSHA has proved its case against
Mr. Schmarje by a preponderance of any credible evidence.
Although the citation issued in these proceedings implies a violation
of "the dust control plan submitted on April 14, 1980", I fail to understand
how MSHA believes it can establish a violation of such a plan when there
is no mandatory standard requiring an operator to submit or, adopt any
dust control plan. The gravamen of the offense here is .the assertion
that the respondent failed to utilize an acceptable engineering dust
control measure, namely the shroud, on the bagging machine which was
cited, and to that extent MSHA has established this allegation. However,
since MSHA failed to _sample or test the ruff-buff product, and since
I have concluded that such tests were required to establish that the product
was in fact a harmful airborne contaminant within the meaning of MSHA's
air quality standards at the time the citation issued on May 7, 1981,
the fact that the shroud was not on the machine makes no difference. In
short, I believe that MSHA must prove that a contaminant is harmful within
the meaning of its standards as part of its requirement that an operator
take appropriate control measures.
ORDER
In view of the foregoing findings and conclusions, Citation No. 0501241,
issued by Inspector Lalumondiere on May 7, 1981, charging the respondents
with violations of 30 CFR 57.5-5, IS VACATED, and MSHA's proposals for
assessment of civil penalties against the named respondents in these proceedings
ARE REJECTED, and these proceedings are DISMISSED.

1139

Postscript
In my vi·ew, the record in this ca,se is an example of the futility
of MSHA's silica dust enforcement efforts at the plant in question, and
citing the plant manager and a bagging machine that is seldom used is
not going to solve the problem. The lack of viable mandatory standards
to require the respondent to adopt a dust control plan which can be enforced,
as well as the lack of an enforceable mandatory standard requiring the
respondent to adopt and maintain a dust clean-up program, has resulted
in protracted piece-meal enforcement spanning a period of some ten years.
Subsequent to the 1979 NIOSH study and plant closure, MSHA's enforcement efforts have focused on individual pieces of equipment and selected
critical occupations. Citations issued for noncompliance appear to be
routinely extend~d for long periods of time to afford the respondent ·
additional opportunities to come up with feasible engineering controls
or to await the results of long-delayed dust sampling. Each time a withdrawal order is issued or threatened, .the respondent manages to somehow
come into compliance, thereby averting plant closure.
No recent overall dust survey has been made at the plant since the
1979 NIOSH study and_ the survey conducted by MSHA's Denver Technical
Support Group. While I have no reason to question the particular· expertise
of MSHA's NIOSH witnesses who testified in these proceedings, I do take
note of the fact that Us. Morring has not been back to the plant since
the 1979 survey (Tr. 92), and Dr. Richards has never visited the plant
(Tr. 150). Absent any current studies or information concerning the
apparent on-going dust problems, and absent any indication on the effect
of respondent's dust control efforts, as recognized by MSHA's own technical
support evaluation, as of the date of the 1981 date of the citations in
question in these proceedings, MSHA's attempts to achieve realistic
compliance by focusing on the plant manager hired in 1980, and one isolated
bagging device seems to be an exercise in futility. In my view, respondent's
irregular use of the cited ruff-buff machine, and the payment of a civil
penalty on behalf of its plant manager, is an insignificant price to pay
for a dust problem which this record suggests has been present since the
day the plant began operation in 1973.

~Ko~~
Administrative Law Judge

Distribution:
J. Philip Smith, Esq.,, U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Malachy J. Coghlan, Esq., 9008 S. Hamilton, Chicago, IL 60620 (Certified
Mail)

/slk

1140

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

Civil Penalty Proceeding

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

Docket No: CENT 81-101-M
A/O No: 34-00508-05008

v.

Wigley Quarry and Mill

C & 0 MATERIALS CORPORATION,
Respondent
DECISION
Appearance:

Frances Valdez Valdez, Esq., Office of the Solicitor,
U.S. Department of Labor, 555 Griffin Square Building,
Dallas, TX 75202
Mr. Don C. Cook, President, C & 0 Materials Corporation,
P.O.B. 274, Fittstown, OK 74821

Before:

Judge Moore

Approximately 4 years ago the combination imminent danger order and
citation (hereinafter citation) that is involved in this case was issued
to respondent along with a number of other citations. All of the other
citations have been disposed of in one way or another but this citation
got sidetracked and the assessment process took about 2 years. Respondent
sees something sinister in this delay. He thinks the inspector and
MSHA are .trying to harass him.
I find that there was no attempt by the inspector, MSHA or the
Solicitor's office to harass respondent. It was an oversight.
Respondent plant crushes limestone into gravel and the citation was
issued because the inspector saw and photographed two men removing rocks
from the crusher feeder and the crusher was de-energized in the sense
that the switch was off but there was no lock on the switch as required by
30 C.F.R. 56.12-18. The standard requires that when work is being done
on electrical equipment the equipment be de-energized and that the switch
be locked in the "off" position with the key in the possession of the
miners working on the equipment. It was the inspector's opinion that the
feeder was of a type with moving plates forming a metallic belt and ~hat
if both the feeder and crusher were energized by someone the two miners
would be carried into the crusher and killed or injured.
Complainant's exhibit 3 is the photograph that the inspector took of
two men in the feeder. The photograph is deceptive in that it appears that

1141

the two men ore down in a hole at the end of the feeder. Actually,
they are crouched down in a grizzly (similar to a cattle guard) which
the smaller stones fall through. This grizzly is on the same level and
a part of the vibrating feeder system used by respondent. Nothing
moves the rocks toward the crusher but th~ vibrations. If the feeder
had been turned on while the men were standing on the grizzly they would
have felt the vibrations but I accept respondent's testimony that they
would not be pushed toward the crusher.
The entrance to the crusher was guarded by several heavy chains and
the rock to be crushed normally passes through these chains and then
falls an unspecified number of feet into the impact crusher. A drawing
was made by respondent of the operation of the crusher and it was
received as respondent's exhibit No: R-5. After the hearing respondent
submitted manufacturer's drawing of the equipment.
According to respondent the crusher can not be accidentally started.
Two switches have to be closed in sequence and a button held in for
thirty seconds before the crusher will operate. In these circumstances,
if the imminent· danger were before me on review, I would make a finding
of no imminent danger, and vacate the order. No one disputed respondent's
testimony that if the feeder were in operation it would merely tingle
the miner's feet rather than move them through the chains and into the
crusher. I find the chance of injury remote. I can readily see, however,
how the inspector, thinking that a moving metal belt was involved would
have had concern for the safety of the miners.
The citation was abated by putting a lock on one of the switches that
energizes the crusher. As respondent points out, the men were not working
on the crusher, they were working on the feeder. But even though there
are two separate pieces of equipment with separate switches, they are
joined together and work together and I think it reasonable to consider
the crusher and its feeder as a unit of electrical equipment that the
miners were working on when they removed large rocks from the grizzly
at the entrance to the crusher.
Under this interpretation, despite the lack of hazard, the miners
were working on a piece of electrical equipment and the equipment was
not de-energized and locked out as required by the standard.
A standard identical to the one involved in this case, but not
concerned with crushed rock, was considered by the United States Court
of Appeals for the Ninth Circuit in Phelps Dodge Corporation vs. Federal
Mine Safety and Health Review Commission,681 F 2d. 1189 (1982). In that
case the Court found that the standard was designed to protect against
electrical hazards not physical hazards, and it referred to the "fair
warning" doctrine. Under that doctrine a standard is unconstitutionally
vague if it fails to give "fair warning" as to what is prohibited. I read the

1142

opinion to hold that the standard is unconstitutionally vague except ·
to the extent that it is applied to protect against injury from electrical
shock. */ This is more than a mere interpretation of a safety standard.
It is a ;tatement that if the standard does not mean what the Court
thinks it means, then it is unconstitutional. The Court found that
Judge Merlin and the Secretary had abused their discretion in applying the
standard to non-electrical hazards.
The Commission and ultimately the Court~ will have to decide the
extent to which the Commission is bound by an unconstitutionality finding
of a United States Circuit of Appeals. I am going to follow the Ninth
Circuit holding and dismiss this case. I will make the findings, however, that there was good faith abatement, that although the mine has a
moderate history of violations it is smaller than average, and that the
gravity and negligence involved were extremely low. Were it not for the
Ninth Circuit opinion I would have found a violation and assessed a
penalty of $50.
The citation portion of the combined citation and imminent danger
order is VACATED and this case is DISMISSED.

~C9ll~~.
Charles C. Moore, Jr.,
Administrative Law Judge

Distribution:

Certified Mail

Frances Valdez Valdez, Esq., Office of the Solicitor, U.S.
Department of Labor, 555 Griffin Square Building, Suite 501
Dallas, TX 75202
Mr. Don Cook, President, C & 0 Materials Corporation, P.O. Box
274, Pittstown, OK 74842

•

!:_/

In MESA vs. Kaiser Steel Corporation, 3 FMSHRC 2463 (November 3, 1981)
the Commission considered a similar, but not identical, provision
of the Coal Mine Act.

114J
/db

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

June 15, 1983
WES'I'MORELAND COAL COMPANY,
Contestant

NOTICE OF CONTEST
Docket No. WEVA 83-140-R

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

Order No. 2140708
2/18/83
Hampton No. 3 Mine

ORDER OF DISMISSAL
On April 4, 1983, Westmoreland Coal Company filed a
Notice of Contest of the above-captioned order. On April 13,
1983, the Solicitor filed a motion to dismiss the notice of
contest for untimely filing.
The Solicitor's motion explained that the order was
received by the operator on February 18, 1983. The Solicitor
cited section 105(d) of the Act which provides that a notice
of contest to an order be filed within 30 days of its
receipt. Based thereon the Solicitor argued that since the
order was not contested until March 31, 1983 1/, it was not
filed within the requisite 30-day period.
The Solicitor's motion to dismiss must be granted.
Section 105(d) of the Act is clear in directing that an
operator contest issuance of an order within 30 days from
the order's receipt.
29 C.F.R. § 2700.20.
Island Creek
Coal Company, 1 FMSHRC 989 (August 3, 1979) affirming
PIKE 79-18 (January 30, 1979) reported at 1 MSHC 2143-2144.
In this case, the operator waited 41 days before mailing the
notice of contest.

1/ The notice of contest was mailed to the Commission and
the soiicitor by certified mail on March 31, 1983 and
received by the Commission on April 4, 1983.

Distribution:

Certified Mail.

F. Thomas -Rubenstein, Esq., Westmoreland Coal Company, P.O.
Drawer A & B, Big Stone Gap, VA 24219
David E. Street, Esq., Office of the Solicitor, U. S.
Department of Labor, Rm. 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104

1145

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

PITTSBURG & MIDWAY COAL
MINING CORPORATION,
Applicant

JUN 161983

Application for Review
Docket No: WEST 82-131-R
Order No: 1016966; 2/24/82
Und. Citation No. 1016965; 5/23/82

v.
Edna Strip Mine
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,
Respondent
Civil Penalty Proceeding

SECRETARY OF LABOR, et al
Petitioner

Docket No: WEST 82-170
A/O No: 05-00303-03015 H

v.
Edna Strip Mine
PITTSBURG & MIDWAY COAL
MINING CORPORATION,
Respondent
DECISION
Appearance:

Phyllis K. Caldwell, Esq., Office of the Solicitor,
U.S. Departmen.t of Labor, 1961 .Stout Street, Rm. 1585,
Denver, CO 80294, for the Secretary of Labor,
John A. Bachman, Esq., The Gulf Companies, 1720 So.
Bellaire Street, Denver, CO 80222 for the Operator,
Pittsburg and.Midway Coal Mining Corpn.,

Before:

Judge Moore

After inspecting the mine on February 23 and 24, 1982, Inspector
Horbatko issued the imminent danger order involved in this review proceeding
and civil penalty case. In it he charged a violation of 30 C.F.R.
77.1000 because the operator was not in compl~ance with its ground
control plan. That section of the regulation states:
"each operator shall establish and follow a ground
control plan for the safe control of all high walls,
pits and spoil banks to be developed after June 30, 1971 which
shall be consistent with prudent engineering design and will
insure safe working conditions. The mining methods employed
by the operator shall be selected to insure high ~Jall anp
spoil bank stability."

1146

It should be noted that unlike ventilation plans and roof control plans
ground control plans do not require the approval of MSHA. On Mci.rch 9,
1982 the inspector amended the order to add several charges and change
the violation from Section 77.1000 to Section 77.1002. Section 77.1002
provides:
"when box cuts are made, necessary precautions shall be taken
to minimize the possibility of spoil material rolling into the
pit. II
After the civil penalty suit was filed MSHA filed a motion to plead
in the alternative a violation of either section 77.1000 or 77.1002. The
operator did not oppose the motion and the issues are therefore, did the
operator violate either 30 C.F.R. 77.1000 or 30 C.F.R. 77.1002 and did
an imminent danger exist?
I am convinced from MSHA Exhibit 4, the mining dictionary ±./
and the testimony at the trial, including that of the inspector, that
the area involved in this imminent danger order was not a box cut.
Thus, Section 77.1002 has nothing to do to do with the area of the mine
involved in this closure order. ·The box cut is the initial cut involving
two high walls, and the spoil has to be dumped on to one of these high
walls. This operation d±d begin with a box cut but that was thirteen
pits earlier and long ago. The charge that Section 77.1002 was violated
is DISMISSED.
The gro~nd control plan filed by the operator in 1977 requires a
fifty foot pit width and states that it proposes a spoil bank angle of
1-1/4 to 1 which is the same as 38°. The wording of the plan is peculiar
in that fifty feet is a required width but the proposed angle of the
spoil bank is merely a goal. There are two seams of coal being mined at
the Edna Strip.Mine. The top seam is about 75' underground and is 5-1/2
feet thick. Ten feet below that is another 2' seam of coal. The operator
first mines the top seam for the entire length of the pit and then goes
back and shoots the 10 feet of parting material and removes that to get
to the lower 2' coal seam. The order herein is concerned only with the
mining of the top seam.
The pit is mined from west to east and there is a station marker
every 100 feet. The station numbers get higher as you approach the east
end of the pit.
The area of the mine closed by the order is "east of
survey station 18, off ramp number 5, for approximately 150' to the end
of the pit." There was a great deal of testimony concerning the condition
of the mine to the left .'(west) of survey station 18 and a slump that had
occurred there three days before the order was issued. As far as this
order is concerned, however, the relevant area of thP- pit is. east of
station 18. The inspector saw large rocks that had fallen off the high
wall east of station 18 and these may have been pulled down by the
dragline rather than having fallen out of their own accord.
This is a standard strip mine operarion.

±./

The dragline rests on the

"A Dictionary of Mining, Minerals and Related Terms."

bench and removes the overburden from the south side of the pit and
drops it on to the spoil bank to the north. After the dragline has
moved some 200 1· east of a particular section the drillers come in and
drill the coal, then the.blasters shoot the coal and the coal is then
loaded and hauled out of the pit. By this time the dragline has removed
the overburden from another section and the operation repeats itself
until the east end of the pit is reached. There was some question as to
the exact location of the dragline when the order was issued, but it was
somewhere on the edge of the branch at the east end of the pit. At the
time the order was issued the dragline was attempting to remove the
overburden east of station 18 but the spoil kept falling back into the
pit. When the dragline operator tried to remove the tow of the spoil,
other spoil would roll into the area, and he was having difficulty in
finding a place to drop the spoil. This was caused by the fact that he
had dumped high spoil on the right hand side and could not dump over it
or reach over it to dump, and a road was hampering his ability to dump
even if he swung a 270° arc to his left. He asked the inspector if he
had any suggestions. The inspector had none and on measuring the angle
of the spoil bank with a level, he found the bank steeper than 40°. He
could see that the width of the pit was very narrow in the area where
the dragline was working. While admitting there was no innninent danger
at the time he actually issued the order he thought one would be created
in a short time. When questioned about the term "imminent danger" he
said it could be a danger that is about to happen or could be "down the
road aways." The Solicitor's attorney brought out the definition pronounced
by the Interior Department's Board of Mine Operations Appeals ~o the
effect that death or injury might occur before the condition can be
abated "if normal mining practices continue."
The operator's witnesses testified that if they had been unable to
solve the problem with the dragline they intended to put a bulldozer on
top of the spoil bank and shove the spoil down toward the pit to create
a more shallow bank. To some- extent the spoil bank 11ad been'.scaled down
by the dragline. The next step would have been to try to remove the
spoil off of the pit bottom with bulldozers and haul it to the other end
of the pit. The inspector thought that would be a very uneconomical way
to mine this area. There was, however, about $50,000 worth of coal east
of station 18.
The theory advanced by counsel for MSHA in its closing argument,
was that the operator wanted that coal so badly that he was going to
bring his drills and blasters and trucks and operate on top of the
boulders and unconsolidated material that had fallen down from the spoil
bank. That makes no more sense to me than it did to the mine operator.
If the operator did try to get its drills and blasters and bulldozers
and trucks to operate in the area east of 18 before the area had been
properly prepared for such activities an innninent danger would exist.
But that is not the normal mining practice and there is no evidence that
respondent intended to mine in that manner.
While, as stated earlier, the inspector did admit on cross examination

1148

that there was no imminent danger at the time he issued the order, it
was his earlier testimony that both the imminent danger and the violation
resulted from the fact that the operator had not complied with its
ground control plan. The spoil bank was not at the proper angle east of
station 18 and the pit was less than 50' in width. Considering the
nature of a dregl:i.ne operation, when the dragline first gets to the top
of the coal seam, the pit is necessarily only the width of the dragline
which in this case was 10 or 12 feet. This creates neither an innninent
danger nor a violation. The ground control plan must be interpreted to
mean that the pit should be 50' wide before the drillers, blasters and
loaders enter the area. No one entered the area in this case, and the
order was issued while the operator v!as still trying to clear the pit
area east of station 18. If the operator had tried to enter the area
east of station 18 to mine, before the pit had become 50' wide, it "t·muld
have been a violation of its ground control plan. Whether an innninent
danger existed would depend en the likelihood of rocks falling off the
spoil bank rather than whether or not the ground control plan had been
violated. I find there was no imminent danger and there was no violation.
It is interesting to note that at the present time the ground control
plan under which this pit is operated allows a width of from zero to 150
feet and a spoil bank angle of 45°.
The order is vacated and these two cases are DISMISSED.
With respect to Citation No: 1016965, an examination of the "Application
for Hearing" reveals that the company did desire to contest both this
citation and the previously discussed withdrawal order. If our docket
office had been aware of that, it would have assigned two separate
docket numbers. It is only in civil penalty cases that multiple citations
and orders are assigned the same docket number.
Through accident or oversight Pittsburgh paid the penalty which
resulted from this citation ~nd while there was testimony concerning
this alleged violation at the trial the government did not try to uphold
the citation and I considered such testimony as background information.
At page 232 of the transcript the government attorney specifically
stated that the citation and standard 77 C.F.R. 1713 was not involved in
this case. Certainly the fa~t that the company had paid the assessment
would lead government counsel to believe that the citation was not being
contested.
Without deciding whether a mining company has a right to a hearing
concerning the validity of a citation even though it has paid the assessment,
I will hold that where the assessment is paid through accident or oversight,
and where the clear intent to challenge the citation is apparent, that
the company did not waive its right to a hearing on the validity of the
citation. Nevertheless, the record as it stands is not adequate for me
to make a decision, but on the other hand I do not.want to hold up the
decision as to the order. I will therefore separate the two notices of
contest and assign a different docket number to the contest of the
citation. It will be WEST 82-131-R-A. If the company still thinks a
hearing or ruling on the citation is necessary, I will receive further

evidence on the matter in the form of affidavits, references to the
transcript of the hearing conducted in Glenwood Springs, Colorado, or if
the parties desire, I will conduct another hearing.
Pittsburgh and Midway Coal Mining Company is accordingly directed
to advise me, within 20 days, whether it wants to pursue this matter. If
not, I will dismiss docket No: WEST 82-131-R-A. But if the company
indicates that it does want to pursue this matter further, the parties
are directed to inform me whether they want the opportunity to present
further evidence at a hearing. In this connection, if Denver, Colorado,
is a convenient place for a hearing on the citation, I will be attending
a conference in Denver on the 13th and 14th of September and could
probably hear this matter on Thursday or Friday of that week.

efldJ4, c 977~t'

Charles C. Moore, Jr.,
Administrative Law Judge
Distribution: By Certified Mail

Phyllis K. Caldwell; Esq. , Office of the Solid tor, U.S.
Department of Labor, 1961 Stout Street, Rm. 1585,
Denver, CO 80294
John A. Bachman, Esq.,
Street, Denver, CO

The Gulf Companies, 1720 So. Bellaire
80222

1150
/db

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

JUN 2 O 1983

COMPLAINT OF DISCHARGE,
OR
INTERFERENCE

RICHARD C. JOHNSTON,
· " Complainant
v.

D~SCRIMINATION,

OLGA COAL COMPANY,

Docket No. WEVA 82-236-D
Respondent
HOPE CD 82-23
Olga Mine
DECISION

Appearances:

James A. Swart, Esq., Beckley, West Virginia, and
Mary Lu Jordan, Esq., Washington, D. C. (on the brief),
for Complainant;
James R. Haggerty, Esq., Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge Melick

•

This case is before me upon the complaint of Richard C. Johnston,
under section 105(c)(3) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801, et seq., the "1977 Act;" alleging that the Olga
Coal Company (Olga) reduced his level of pay on or about June 18, 1981,
in violation of his statutory rights as a miner deemed to have been
transferred because of pneumoconiosis and therefore contrary to section
105(c)(l) of the 1977 Act. 1/ 2/ Evidentiary hearings were held on Mr.
Johnston's complaint in Bluefield, West Virgi~ia.
1/

Section 105(c)(l) provides in part as follows:
No person shall *** in any manner discriminate against *** or cause
discrimination against or otherwise interfere with the exercise of the
statutory rights of any miner *** in any coal *** mine subject to this
Act because such miner *** is the subject of medical evaluations and
potential transfer under a standard published pursuant to § 101 *** or
because of the exercise by such miner *** on behalf of himself or
others of any statutory right afforded by this Act.
Y In John Matala v. Consolidat.ion Coal Company, MORG 76-53 (April 5
1979), the Commission held that review of discrimination complaints of a
miner based on allegations that the miner suffers from pneumoconiosis
should be resolved under the specific statutory provisions set forth in
section 428 of the Black Lung Benefits Act rather than under the general
anti-discrimination provisions in section llO(b) of the Federal Coal
Mine Health and Safety Act of 1969, the "1969 Act". That case was,
therefore, in accordance with the provisions of section 428 of the Black

1151

2

Motion to Dismiss
At hearing, Olga renewed in a Motion to Dismiss its argument made
in prior mo.tions that Complainant had failed to meet the t.ime deadlines
set forth in sections 105(c)(2) and 105(c)(3) of the 1977 Act. Under
section 105(c)(2), of the 1977 Act, the miner who believes that he has
been discriminated against "may, within 60 days after such violation
occurs, file a complaint with the Secretary". There is no dispute in
this case that th~ alleged discriminatory event.; i.e., Mr. Johnston's
reclassification from pay grade 4 to grade 1, occurred on or about
June 18, 1981, and that Mr. Johnston did not file a complaint of discrimination with the Secretary of Labor, Mine Safety and Health Administration (MSHA), until February 16, 1982, more than seven months later.
Whether an extension of the filing deqdline should be granted depends on whether "justifiable circumstances" exist for the delay and
whether the operator was prejudiced by the delay. Joseph W. Herman v
IMCO Services, 4 FMSHRC 2135 (1982). The Commiss·ion said in that case
that the time limit might warrant extension where the miner, within the
statutory 60 days, brings the complaint to the attention of another
agency or to his employer, or the miner fails to meet the time limit
because he is misled as to or misunderstands his rights under the Act.
In this case, Johnston does not deny that as early as June 18,
1981, he knew he could have filed a discrimination complaint with MSHA.
His only explanation for not doing so until February 16, 1982, was that
he was advised.by the Union Safety Committeeman, Leonard Sparks, that he
should first exhaust the grievance procedures under the collective
bargaining agreement. Although the grievance procedures were apparently
exhausted as of November 17, 1981, there is no explanation why Mr. Johnston did not even then file his complaint with,MSHA for almost three
more months.
The operator claims that it was prejudiced by the delay because two
'of its witnesses were no longer its employees at the time of the hearing. It claims that a Mr. Hifk left Olga in December 1981 and resided
at the time of hearing in South Carolina, and that a Joe Mcintyre left
Olga in September 1982 and resided at the time of hearing about 100
Fn. 2 cont'd.
Lung Benefits Act, transferred to the Department of Labor for adjudication by one ·Of its Administrative Law Judges.
The case at bar is brought, however, under the revised provisions
of section lO~(c)(l) of the 1977 Act, and by virtue of section 10l(a)(7)
of the 1977 Act and regulatory standards published pursuant to that section, i.e., 30 C.F.R., Part 90, effective February 1, 1981. Accordingly, this case comes within the jurisdiction of this Commission.

1152

3

miles from the hearing site. Hick's testimony concerning the execution
by Johnston of a purported waiver of his option to transfer to a low
dust area of the mine (pursuant to former section 203(b)(2) of the
Federal Coal Mine Health and Safety Act of 1969) may indeed have been
relevant to this case. However, in the absence of a proffer as to the
precise testimony to be elicited from Hick and Mcintyre and reasons for
the non-production of the witnesses, I cannot conclude that the operator
has been prejudiced.
In summation, it appears that the Complainant did bring a complaint
about his pay reduction to the attention of his employer through grievance procedures initiated on June 18, 1981, that he relied upon the
representations of his union safety committeeman that he should first
exhaust these procedures before filing with MSHA, and that the delay
between the exhaustion of his grievance pro·ceedings on November 17,
1981, and the filing of this discrimination complaint with MSHA on
February 16, 1982, was not significant. In light of these extenuating
factors and insufficient evidence of prejudice to the operator caused by
the delay, I conclude that the complaint should be deemed to have been
timely filed.
I further find that Johnston did, in fact, satisfactorily comply
with the filing requirements set forth in section 105(c)(3). It is
undisputed that the MSHA letter dated March 16, 1982, finding no discrimination, was received by Johnston on or about March 21, 1982. It is
also undisputed that on April 15, 1982, Johnston filed with the Commission a letter expressing his disagreement with the MSHA decision. While
another Administrative Law Judge has ruled that the filing of that complaint had not been perfected until July 2, 1982, I find for the limited
purpose of tolling the period of limitations that Mr. Johnston's filing
was constructively accomplished on April 15, 1982, the date his letter
was filed with the Commission. Accordingly, filing for this purpose was
accomplished within the 30 days required by section 105(c)(3). The
operator's Motion to Dismiss is accordingly denied.
The Merits
As clarified in Mr. Johnston's post hearing brief, his complaint is
limited to an assertion that he was entitled to the rights of a "transferred miner" under section 101 (a) (7) of the 1977 Act 1./ and that Olga
]_/
Section 10l(a)(7) of the 1977 Act authorizes the Secretary of Labor
to promulgate mandatory health and safety standards to protect miners
against exposure to certain hazards. In particular, that section provides as follows:
Where appropriate, the mandatory standard sha.11 provide that where a determination is made that a miner may
suffer material impairment of health or functional capacity by reason of exposure to the hazard covered by such

1153

•

4

interfered with those statutory rights in violation of section 105(c)(l)
of the 1977 Act by reducing his rate of pay in June 1981 from grade 4 to
grade 1, a reduction at that time of $5.30 per day. 4/ There is no
dispute that Mr. Johnston's wage rate was in fact reduced as alleged.
Moreover, there is no dispute that if Mr. Johnston had been in fact
transferred in accordance with the provisions of section 10l(a)(7) of
the 1977 Act (and in accordance with30 C.F.R. Part 90 of the regulations), such a reduction in pay would have been a violation of both
section 10l(a)(7) and an unlawful interference ~ith those statutory
rights under the provisions of section 105(c)(l). The dispute herein
accordingly centers on the question of whether in June 1981 Mr. Johnston
met the criteria to be a "transferred miner" under section 10l(a)(7) of
the 1977 Act (or a "Part 90" miner under the regulations promulgated
pursuant to that section; i.e., 30 C.F.R. Part 90).
A transferred or "Part 90" miner is defined in 30 C.F.R. § 90.2 as
"a miner employed at an underground coal mine or at a surface work area
of an underground coal mine who has exercised the option under the old
section 203(b) program [former section 203(b) of the Coal Mine Health
and Safety Act of 1969] or under'section 90.3 (Part 90 option; Notice of
Eligibility; exercise of Option) of this Part to work in an area of a
mine where the average concentration of respirable dust in the mine
atmosphere during each shift to which that miner is exposed is continuously maintained at or below 1.0 milligrams per cubic meter of air; and
who has not waived these rights." Johnston argues that he should be
deemed to have exercised the option in 1972 under the old section 203(b)
program and that he accordingly should have been brought under the new
regulations as a transferred "Part 90" miner. Thus he argues his ra:te
of pay could not legally have been reduced.
There is no dispute that Mr. Johnston had been notified in accordance with former section 203(b) of the 1969 Act of his rights to transfer to another area of the mine because of X-ray evidence showing his
development of Category 2 Simple Pneumoconiosis. In particular, he was
notified by letter dated November 30, 1970, from the Department of
Health, Education and Welfare, by letter dated October 28, 1971, from
the Federal Bureau of Mines, and by letter dated November 12, 1973, from
the Federal Mining Enforc~ment and Safety Administration. While
Fn. 3 cont'd.
mandatory standard, that miner shall be removed from such
exposure and reassigned. Any miner transferred as a result
of such exposure shall continue to receive compensation for
such work at no less than the regular rate of pay for miners
in the classification such miner held immediately prior to
his transfer.
·
4/
Johnston does not allege that he was discriminated against because
he was "the subject of medical evaluations and potential transfer" under
section 105(c)(l). See fn. 1/ supra.

1154

5

Mr. Johnston initially sought to exercise his transfer rights in January
1972, he apparently changed his mind and executed a written waiver of
these rights on February 24, 1972 (Exhibit 0-1). It is undisputed that
he never since that date has made any effort to exercise his transfer
rights.
The evidence shows that in January 1972 Johnston was offered the
option to tran.sfer to a less dusty area on the "hoot owl" or night
shift. Johnston was then working the day shift.-and, according to him,
he elected to waive the transfer option rather 'than transfer to the
night shift. 2_/ According to the regulations then in effect, Johnston
did not, upon exercising the transfer option, have the choice of remaining on his regular shift. See 36 F.R. 20601, October 27, 1971. Johnston's contention that his waiver of the transfer option was invalid or
"involuntary" because he was not offered a.transfer to the day shift is
accordingly without merit.
While subsequent regulations issued pursuant to section 10l(a)(7)
of the 1977 Act did require that the mine operator transfer the miner
exercising his transfer rights to a position on the same shift or shift
rotation on which he was employed immediately before the transfer, those
regulations did not take effect until February 1, 1981. See 46 F.R.
5585, January 21, 1981. §__/
Within this framework of evidence, it is clear that Johnston's
waiver of his transfer rights in February 1972 was not invalid but was a
completely voluntary and intentional relinquishment of the right to
transfer as it then existed. Johnson v. Zerbst, 304 U.S. 450 (1938).
Accordingly, Johnston cannot be "deemed" to have exercised his transfer
rights. He has not therefore met his initiaLburden of proving that the
reduction in his pay grade in June 1981 was ir{ violation of sections
10l(a)(7) or 105(c)(l) of the 1977 Act. Secretary ex rel. Fasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (1980), rev'd on other grounds sub
nom. Consolidation Coal Co. v. Secretary, 663 F.2d 1211 (3d Cir. 1981);
Boitch v. F11SHRC, 704 F.2d 275 (6th Cir. 1983), reh'g granted on other
grounds, May 23, 1983.

2_/
While Johnston also alleged at hearing that he turned down the
transfer option because he believed there was just as much dust on the
"hoot owl" shift, the evidence does not bear this out. The uncontradicted testimony of Mine Superintendent Dwight Strong was that the "hoot
owl" shift was then a non-producing maintenance shift with a record of
lower dust levels.
&_/
The evidence in this case is insufficient to indicate when Mr.
Johnston first knew of this revision in the regulations or that he
failed to exercise his transfer option because he did not know of these
revisions. On the record before me I am unable to speculate why he did
not exercise the option after these revisions.

1135

6

The Complaint herein is

e dismissed.

Distribution (by certified mail):
James A. Swart, Esq., United Mine
Raleigh Road, P.O. Box Sll, Beckley,

Chilson Avenue at

Mary Lu Jordan, Esq., United Mine Workers of America, 900 Fifteenth
Street, N.W., Washington, DC 20005
James R. Haggerty, Esq. , Olga Coal Company'· 3 Gateway Center, 9 North,
401 Liberty Avenue, Pittsburgh, PA 15263
nw

1156

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

June 22, 1983

KENTLAND-ELKHORN COAL CORP.,
Applicant

Application for Review
Docket No. PIKE 78-399

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

Order No. 063798; 6/23/78
Feds Creek No. 1 Mine

ORDER OF DISMISSAL
The above-captioned matter has been reassigned to the
undersigned administrative law judge.
This proceeding is an application for review of an
order filed by Kentland-Elkhorn Coal Corporation. The
operator has filed a motion to withdraw its application for
review.
Accordingly, it is hereby ORDERED that this matter
is DISMISSED.

,,
Paul Merlin
Chief Administrative Law Judge
Distribution:

By certified mail.

C. Lynch Christian, III, Esq., Jackson, Kelly, Holt & O'Farrell,
P. O. Box 553, Charleston, WV 25322
Leo J. McGinn, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th St., N.W.,
Washington, DC 20005

115'7

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

20006

June 24, 1983

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

Civil Penalty Proceeding
Docket No. PENN 81-139
A.C. No. 36-00808-03056

v.

Russellton Mine

REPUBLIC STEEL CORPORATION,
Respondent
DECISION
Appearances:

David E. Street, Esq., Office of the Solicitor,
U. S. Department of Labor, Philadelphia,
PBnnsylvania, for Petitioner, MSHA;
Bronius K. Taoras, Esq., Kitt Energy Corporation,
Meadow Lands, Pennsylvania, for Respondent,
Republic Steel Corporation.

Before:

Judge Merlin
Statement of the Case

This case is a petition fat the assessment of a civil
penalty filed by the Secretary of Labor against Republic
Steel Corporation for an alleged violation of 30 C.F.R.
§ 75.604(b).
The hearing was held as scheduled on March 15, 1983.
Documentary exhibits, oral testimony and oral arguments were
presented by the parties. At the conclusion of the hearing
both parties waived the filing of written briefs and agreed
I should render a decision based upon the transcript of the
hearing and documentary evidence (Tr. 102-103).

1158

The Mandatory
§

~tandard

Section 75.604(b) of the mandatory standards, 30 C.F.R.
75.604(b) provides as follows:
§

75. 604

Pe.rmanent splicing of trailing
cables.

When permanent splices in trailing
cables are made, they shall be:

*

*

*

*

*

(b) Effectively insulated and
sealed so as to exclude moisture.
The Cited Condition or Practice
§

Citation No. 843121 cites a violation of 30 C.F.R.
75.604(b) for the following condition:
A permanent splice installed in the
trailing cable on shuttle car Serial No.
11341 being used in the (012) 4 west off 10
mains section was not effectively sealed so
as to exclude moisture and a seven inch long
area had the outer jack removed and was not
reinsulated to the same degree as the remainder
of the cable.
Stipulations

At the hearing, the parties agreed to the following
stipulations which were accepted (Tr. 5-11, 13):
1.

Republic Steel Corporation was the owner and
operator of the Russellton mine when the citation
at issue in this case was written.

2.

The operator and the Russellton Mine were subject
to the jurisdiction of the Federal Mine Safety
and Health Act of 1977 at the time the citation
was written.

3.

The presiding administrative law judge has
jurisdiction over this proceeding.

1159

4.

The inspector who issued the subject citation
was a duly authorized representative of the
Secretary.

5.

A true and correct copy of the subject citation
was properly served upon the operator.

6.

Imposition of any penalty in this proceeding
will not affect the operator's ability to
continue in business.

7.

The alleged violation was abated in good faith:

8.

The mine was medium in size during the year prior
to the issuance of the subject citation.

9.

The Russellton Mine has been out of production
since October 1982, although it has not been
sealed and is being maintained for possible
future production.

10.

The operator was medium in size during the year
prior·to the issuance of the subject citation.

11.

The condition or practice stated in the body
of the ~ubject citation, other than the fact that
the shuttle car was being used, existed. The
operator does not agree that the shuttle car
was being used.

12.

During the two years prior to the issuance of
the subject citation, the operator and the mine
had an average history of violations of 30 C.F.R.
§ 75.604(b).

13.

All witnesses are accepted generally as experts
in coal mine health and safety.
Discussion and Analysis

This case presents a fundamental conflict in the
evidence between MSHA and the operator which can be
resolved only by a determination as to the credibility of
those who testified. The inspector who issued the subject
citation testified that the supervisory inspector who was
accompanying him on the inspection told him when they were
in the face area to return outby and to look at a defective

1160

splice in the subject shuttle car (Tr. 14, 33-34). The
issuing inspector stated that only the shuttle car operator
was present when he arrived .at the shuttle car and inspected
the splice (Tr. 21, 25). His inspection 0£ the cable
revealed a splice with a sleeve that was not bonded to the
outer jacket so as to exclude moisture (Tr. 14-15). The
cable had been pulled off its reel and was lying on the
ground (Tr. 23-24). He testified that the violation was not
being corrected when he first observed it, that the splice
had not been cut out of the trailing cable and that it was
still a part of the cable (Tr. 21, 24).
The supervisory inspector testified that he saw the
shuttle car operator pulling the cited trailing cable off
the reel and that he helped her with this task (Tr. 45).
While he was helping her, he saw a splice and another part
of the cable which he thought needed attention. He said
that he may have commented to the shuttle car operator that
the splice looked bad (Tr. 46). He admitted that his
recollection of this subject was not plain and he did not
recall how long he helped her or whether they pulled the
cable off together or alternately (Tr. 48, 98). Similarly,
his recollection of seeing the splice was hazy.
He was not
clear about how much of the cable had been pulled off before
the splice appeared or whether he saw the splice as it was
being pulled off the reel rather than when it was lying on
the ground (Tr. 49-50). He testified that he did not recall
what he said about the splice, if anything at all (Tr. 98-lQO).
The supervisory inspector testified that he has the authority
to issue a citation but stated that instead he went to the
face area and told the other inspector to go look at it
(Tr. 46, 50-51) .
The tempo~ary shuttle car operator had served in that
capacity approximately six times prior to the day the subject
citation was issued (Tr. 56). Her section foreman reminded
her as a shuttle car operator that the general procedure was
to remove the entire cable from the machine and inspect it
before energizing the cable (Tr. 57, 61, 66). She stated
that she followed the general procedure on that day (Tr. 57,
61) . She knew the cable was not energized because she saw
that it was unplugged and she did not plug it in (Tr. 61).
She started to remove the cable from the reel when the
supervisory inspector walked past her (Tr. 57-58). She
stated that he did not help her remove any of the cable.
She said that she would remember if someone helped her
because it is a difficult job (Tr. 57-58, 68-70). Moreover,
she testified that the supervisory inspector did not point

1161

out any deficiencies in the cable (Tr. 58-59). She pulled
the portiop of the cable containing the defective-splice off
the reel after the supervisory inspector passed her (Tr. 65).
She felt she needed another opinion about the condition of
the splice and went to alert the mechanic a few minutes
after the supervisory inspector had walked passed the
shuttle car (Tr. 59-60). The mechanic agreed that there was
a problem with the splice. He went to get his equipment to
repair it and she went to inform the section foreman of the
problem (Tr. 60). She testified that she and the mechanic·
next cut the defective splice out of the cable (Tr. 62).
Then the issuing inspecto~ and several other people arrived
at the shuttle car (Tr. 62-63). The splice was already cut
out of the cable and was lying on the ground when the issuing
inspector arrived and issued the citation (Tr. 63-64). The
operator's mechanic and section foreman also testified and
confirmed the evidence given by the shuttle car operator
(Tr. 77-78, 89-90).
After observing and listening to the witnesses, I
accept all the testimony of the shuttle car operator including her evidence that the damaged splice had been cut
out of the trailing cable of the shuttle car and that the
cable was being.repaired before the citation was issued.
The testimony of the shuttle car operator was clear, consistent and therefore, wholly credible.
I also accept the
testimony of the operator's other witnesses. I reject the
insp~ctor's testimony that when he arrived to check the
cable no abatement of the condition had begun and the
supervisory inspector's testimony that he stopped and
helped the shuttle car operator unreel the cable. As
already noted the supervisory inspector's testimony was
vague, contradictory and therefore unconvincing. .The
evidence given by both inspectors is far outweighed by that
given by the shuttle car operator and the operator's other
witnesses.
Since the defective splice was no longer part of
the cable when the inspector observed the permanent splice,
the condition described and therefore the alleged violation
did not exist when the citation was issued. Under such
circumstances the citation must be vacated.
At the hearing the Solicitor argued that a violation
still existed even if the splice was cut out before it was
cited because the splice had been defective. He cited
Consolidation Coal Company, 1 FMSHRC 542 (June 1979) in
support of his position.
In that case it made no difference
that the operator had begun abatement of a roof control
violation when the condition was cited by MSHA. However,
there the violation remained in existence when the withdrawal order was issued.
In the present case there was no

1162

violation at the time the citation was issued.
The citation
alleges a violation of 30 C.F.R. § 75.604(b), which requires
that permanent splices in trailing cables be effectively
insulated so as to exclude moisture. By the time the
inspector issued the citation, however, the defective splice
was no longer in the cable.
ORDER
Accordingly, it is ORDERED that Citation No. 843121 be
Vacated and that the petition for the assessment of civil
penalty be DISMISSED.

Paul Merlin
Chief Administrative Law.Judge
Distribution:

Certified Mail.

David E. Street, Esq., Office of the Solicitor, U.S.
Department of Labor, Rm. 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104
Bronius K. Taoras, Esq., Kitt Energy Corporation, 455 Race
Track Road, P. O. Box 500, Meadow Lands, PA 15347

1163

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

)

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

)

CIVIL PENALTY PROCEEDINGS

)

)
)

Petitioner,

DOCKET NO. CENT 80-386-M
A/C No. 29-00573-05025 F

)

v.

)
)

UNC MINING & MILLING,

DOCKET NO. CENT 80-387-M
A/C No. 29-00573-05026

)

_________________
Respondent.

)

MINE: Northeast Church Rock Mine

)
)

DECISION
APPEARANCES:
Eloise V. Vellucci, Esq., Office of the Solicitor
United States Department of Labor
555 Griffin Square, Suite 501
Dallas, Texas 75202
For the Petitioner
Wayne E. Bingham, Esq., Pickering & Bingham
920 Ortiz N.E.
Albuquerque, New Mexico 87108
For the Respondent
Before: Judge Virgil E. Vail
PROCEDURAL HISTORY
These consolidated cases arise under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. In each case, the Secretary seeks to
have a civil penalty assessed~or-in alleged violation of a mandatory safety
standard. After a date for hearing was set, the parties entered into an
agreement to submit these cases on a written stipulation of facts and briefs
which have now been filed.
Based upon the entire record and considering all of the arguments of the
parties, I make the following decision. To the extent that the contentions
of the parties are not incorporated in this decision, they are rejected.
ISSUES
The principal issues presented in this proceeding are: (1) whether
respondent has violated the provisions of the Act and implementing regulations. as alleged in the proposal for assessment of civil penalties filed

1164

1n this proceeding; and, if so, (2) the appropriate civil penalty that should
be assessed against the respondent for the alleged violation based upon the
criteria set forth in section llO(i) of the Act. Additional issues raised by
the parties are identified and disposed of in the course of this decision.
In determining the amount of a civil penalty assessment, section llO(i)
of the Act requires consideration of the following criteria: (1) the
operator's history of previous violations, (2) the appropriateness of such
penalty to the size of the business of the operator, (3) whether the operator
was negligent, (4) the effect on the operator's ability to continue in
business, (5) the gravity of the violation, and (6) the demonstrated good
faith of the operator in attempting to achieve rapid compliance after
notification of the violation.
STIPULATIONS
The parties stipulated to the following: !._;
UNG Mining and M,illing (herein UNC) operates an underground uranium mine
located approximately 20 miles northeast of Gallup, McKinley County, New
Mexico, on State Highway 566. The mine is designated as the Northeast
Ghurchrock Mine. In December, 1979, the mine was operated on three 8-hour
shifts a day, 6 days a week. In December 1979, 916 persons were employed.
Of these, 650 worked underground.
Access to the mine was through two vertical, 14-foot diameter,
4-compartment shafts connected to two mining levels. A modified room and
pillar method of mining was used in conjunction with diesel-powered trackless
and track haulage systems. A blueprint of pertinent portions of the mine is
attached hereto as Exhibit #1. Portions marked in red are those haulage-ways
which are relevant to the instant case.
UNG maintains an extensive inspection and safety program. In December,
1979, UNG employed some twenty-eight persons to specifically administer mine
safety and training, as indicated by an organizational flow chart attached.
hereto as Exhibit # 2. This chart does not include the various
superintendents, foremen and shift bosses who also are charged with
responsibility for safety.
UNG issues a safety booklet to each employee. See Exhibit # 3. Alex
Garcia, the employee who was fatally injured in this case, received a copy of
the safety booklet. See Exhibit 1F 4.
As part of UNG's safety training program, employees are given tra1n1ng
courses in mining and first aid. Employees are then tested to determine what

1/ The parties also stipulated to eleven exhibits attached to the stipulated
facts filed in this case.

1165

learning occurred. Alex Garcia after attending these training courses scored
96% on the mining examination and 90% on the first aid examination. See
Exhibits {F 5 and {F 6. Alex Garcia also received training from his previous
employer Kerr McGee. See Exhibit# 7. Additionally, Garcia had received
task training as a clam operator and a trip rider. See Exhibits # 8 and {F 9.
In December, 1979, Garcia was also in the process of being task trained as a
motorman. He had completed on-the-job training, which is the method employed
for task training.
UNC's task trainer is Zorro Davis. Davis had observed Garica (sic)
operate the motor (underground locomotive) and determined that Garcia was a
competent operator~ Davis had not issued Garcia a task training certificate,
although one would have been issued after testing and based on Garcia's
performance.
On December 18, 1979, the following persons, among others, were employed
on swing shift at UNC's Northeast Churchrock Mine.
B. J. Chavez
George Otero
James Kepler
Harry Morgan
Bob Masters
Norris Ross
Sam Sullivan
Alex Garcia

level foreman
acting level foreman
track shift boss
track crew
skip tender
shift boss
motorman
triprider

Swing shift began at 4:00 p.m. At the beginning of the shift, James
Kepler instructed Sam Sullivan and Alex Garcia that they could pull any of
the available raises (load loose mined ore from stock piled areas). Sullivan
and Garcia pulled a couple of trips (hauled a couple of loads of ore) from
the 8, 10 and 11 raises to the trench (unloading area) at the No. 1 shaft.
They then went to the number 2 raise to pull a trip. This occurred before
5:30 p.m. On arriving at the number 2 raise Sullivan and Garcia could not
get to the raise because ground from the top of the haulage-way had fallen on
and blocked the track. Sullivan and Garcia left to pull other raises. They
encountered no difficulties iri driving the Clayton 225 locomotive through the
haulage way between the A2-A2 1.4 switch and the A2-A2 3.8 switch.
At approximately 5:30 p.m. track shifter James Kepler walked to the
number 2 raise and for the first time noticed the ground on the track.
Sometime after 5:30 p.m. Sullivan and Garcia notified Kepler of the ground on
the tracks. Nothing was mentioned concerning broken timber in the haulage
way. There was not much ground on the track but it was enough to prevent
passage.
Between 5:30 p.m. and 8:00 p.m. Kepler instructed a track crew
consisting of Harry Morgan and others to clean the ground from the tracks.
At 8:30 p.m. Kepler walked to the number 2 raise to ascertain whether the
track had been cleared. The track crew had not yet cleared the track. As
Kepler was coming from the number 2 raise he met the track crew coming to

1166

clear the track. Kepler did not return to the number two raise with the
track crew but· continued on his routine.
At approximately 10:00 p.m., the track crew notified Kepler that the
track had been cleared. Kepler in turn notified Bob Masters, the skip tender
(person responsible at the base of the shaft for.lifting ore out of the
mine), that the track had been cleared. Masters was so notified because
Masters told Sullivan and Garcia where stock piled ore could be loaded.
The last time Kepler saw Sullivan and Garcia was shortly after 10:00
p.m., after he had been notified that the track near the number 2 raise had
been cleared. At this time Kepler said nothing to Sullivan or Garcia.
At approximately 11:00 p.m. B.J. Chavez, the level foreman, saw Sullivan
and Gare ia at the trench near the No. 1 shaft. By this time, Chavez had
heard that the track near the number two raise had been cleared. Chavez had
heard this from Masters or others. Chavez told Sullivan he could pull the
number 2 raise as the track was clear. Also at approximately 11:00 p.m.
George Otero, the acting level foreman, came into the trench area. Chavez
asked Otero if he h~d double checked the number 2 raise to make sure that the
track was clear. Otero said he had not. Chavez said he would check the
raise and proceeded to walk toward the raise.
As Chavez walked toward the number two raise, he passed Sullivan and
Garcia at the A-1 switch where they were picking up track tools. ~etween the
A-1 switch and the 1.8 switch Sullivan and Garcia passed Chavez. They then
stopped at the 1.8 switch to unload the track tools. While Sullivan and
Garcia were stopped at the 1.8 switch, Chavez passed them. Sullivan and
Garcia then passed Chavez at the Al-A2 switch.
At 11:20 p.m. Chavez caught up with Sullivan and Garcia at the A2-A2
1.4 switch where the Clayton 225 motor was stopped. Norris Ross, the shift
boss, was at the A2-A2 1.4 switch at this time and Ross and Chavez talked
about equipment. Also, Chavez told Sullivan and Garcia not to pull the
number 2 raise until he had checked the track.
While Chavez finished talking to Ross, Sullivan and Garcia proceeded
from the A2-A2 1.4 switch to the A2-A2 3.8 switch with Sullivan.walking ahead
of the locomotive and Ga-rcia driving the locomotive. Throughout the shift
and throughout several prior shifts Sullivan and Garcia had traded off
operation of the locomotive as part of Garcia's on the job training in
preparation for Garcia taking over complete operation of the locomotive when
Sullivan went on vacation.
Chavez finished his conversation with Ross and walked toward the A2-A2
3.8 switch. Ross went the opposite direction to the number 1 shaft.
After Sullivan reached the A2-A2 3.8 switch he walked on ahead to the
location of the ground fall. Garcia waited with the locomotive at the A2-A2
3.8 switch. Sullivan observed that the ground fall had been cleared from the
track but that the wire mesh support above the track had a hole in it through

11 G'I

.

which the ground had broken and fallen on the track and that some rock was
still hanging in the mesh. This had not been repaired by the track crew.
After Sullivan observed the hole in the mesh he yelled the status to
Garcia. Shortly thereafter, Chavez arrived at where Garcia was stopped with
the locomotive. Garcia reported to Chavez what Sullivan had reported to
Garcia. Chavez directed Garc'ia. not to pull the number 2 raise. Garcia then
motioned to Sullivan to board the last car pulled by the locomotive and
Garcia and Sullivan proceeded toward the A2-A2 1.4 switch.
Chavez waited. for the locomotive and cars to pass him. As Sullivan
passed Chavez, Chavez instructed Sullivan to pull the number 14 raise.
Chavez then walked to where the ground fall had occurred and found it as
described by Garcia.
As Chavez walked from the A2-A2 1.4 switch to the A2-A2 3.8 switch, he
noticed no broken timber. This was the first time Chavez had been through
the area on this shift. Likewise Sullivan noticed no broken timber as he
walked the track from the A2-A2 1.4 switch to the A2-A2 3.8 switch at
approximately 11 :20 p.m. Sullivan had noticed a broken timber the week prior
to December 18, 1979, but this had been replaced upon finding it broken.
After Chavez observed the area of the ground fall and the mesh, he
walked past the A2-A2 3.8 switch toward the A2-A2 1.4 switch and observed for
the first time one broken timber.
As Sullivan and Garcia proceeded from the A2-A2 3.8 switch to the A2-A2
1.4 switch Sullivan observed for the first time one broken timber.. Garcia
was operating the locomotive and Sullivan was riding in the last car.
Sullivan could not at all time see Garcia. As the train approached the A2-A2
1.4 switch, Sullivan sensed something was wrong as the train appeared to be
moving only at a coasting slow speed.
Sullivan, when able to do so, climbed over the cars to the locomotive.
By this time, Chavez had caught up with the train and observed Sullivan
climbing over the cars to the locomotive and putting the brake on the
locomotive. Chavez likewise climbed over the cars to the locomotive and
joined Sullivan, where they found Garcia has sustained a head injury which
eventually reiulted in his death.
Garcia was given first aid which included mouth to mouth respiration by
Chavez, and was transported to the hospital in Gallup, New Mexico where he
died at 1:05 a.m. on December 19, 1979.
At 2:00 a.m. on December 19, 1979, UNC's Manager of Safety, Kay Kofford
was notified by UNC's Inspector of Mines Lolo Martinez that an accident
involving Alex Garcia had occurred. Kofford innnediately proceeded to the
Northeast Churchrock Mine, went into the mine to the beginning of the
haulage-way between the A2-A2 1.4 switch and the A2-A2 3.8 switch and secured

1168

the area. No one had been in the area from the time of the accident until
Kofford secured the area.
At 9:00 a.m. on December 19, 1979, MSHA inspectors Charles H. Sisk, Ned
D. Zamarripa, and Francis T. Csepregi arrived at the Northeast Churchrock
Mine. They along with UNC employees and Charles D. Lunger from the New
Mexico Mine Inspector's Office entered the mine, proceeded to the location of
the accident and began inspection at approximately 10:00 a.m.
The investigation revealed that no one had been in the area since the
time of the accident. The Clayton 225 locomotive was at the A2-A2 1.4
switch.
MSHA inspectors directed that measurements be taken. From the front of
the locomotive to where Garcia's hard hat was found measured 231 feet. The
highest point on the locomotive measured 61 inches from the track rail. The
top of the locomotive is dome shaped with the sides of the top of the
locomotive being less than 61 inches from the track rail. See Exhibit # 10.
The locomotive measured 42 inches wide. At the front of the locomotive
is a compartment from which the motorman operated the locomotive. Within the
compartment is a builtin seat. The top of the front of the locomotive
measured 54 inches from the track. See Exhibit # 10. One broken timber cap
was found.
At the location of the timber cab (sic), next to the broken timber cap,
the haulage way measured 82 inches across the bottom, 76 inches across the
top and 61 1/2 inches from the top of the rail to the top of the haulage way.
The broken timber cap measured 57 inches from the track rail at its lowest
point which was on the side of the haulage way. The other side of the broken
timber cap measured 62 inches from the track rail. Timber caps to either
side of the broken timber cap and the cap next to the broken timber cap
measured greater than 62 inches from the track rail and up to 96 inches or
more at the switches. The timbers were not marked with warning signs or
devises (sic).
During the course of the inspection, MSHA inspectors directed Sam
Sullivan to dirve (sic) the motor through the area between the A2-A2 1.4
switch and the A2-A2 3.8 switch and drop off the cars at the A2-A2 3.8
switch. Sullivan then was directed by MSHA inspectors to repeatedly drive
the locomotive between the A2-A2 1.4 switch and the A2-A2 3.8 switch. MSHA
inspectors and UNC supervisory personnel repeatedly walked through the area
during the course of the inspection. After measurements were taken, Kay
Kofford was allowed to wedge a stull (vertical support) under the broken
timber so it would not drop further down. This was the first corrective
action which was taken. Prior to, during and after the inspection no ground
fell in the haulage-way between the A2-A2 1.4 and the A2-A2 3.8 switches.
When enlargement of the haulage way began in late December no ground had
fallen.
After the inspection, the area was again closed to access. The area was
opened again after the entire distance between the A2-A2 1.4 switch and A2-A2

1169

3.8 switch was enlarged. UNC spent six months and $214,500.00 in this
process. See Exhibit # 11.
Throughout this process, despite repeated requests, MSHA inspectors gave
UNC personnel no indication of how large the haulage-way should have been
made.
As the result of the inspection conducted by MSHA, UNC received a number
of citations including citation number 152050 (A copy is attached to the
complaint) for violation of § 57.9-104 which requires- conspicuous marking of
obstructions which create a ha.zard. UNC paid the penalty resulting from
citation 152050.
DISCUSSION
Docket No. CENT 80-386-M
~December 19, 1979, during an investigation of a fatality at the
respondent's Northeast Churchrock Mine, a mine inspector for the Mine Safety
and Health Administration (MSHA) issued a 104(a) citation No. 151666 which
stated as follows:

There was no safe access for the person operating a Clayton (:ffo225)
haulage locomotive through the area of low clearance between the
A2-A2 1.4 switch and the A2-A2 3.8 switch on the 1700 level in that
the measured height of the Clayton #225 locomotive was 61 inches
from its top down to track rail and at the timber cap 45 feet north
from the A2-A2 3.8 switch it was measured 61 1/2 inches over the
track rail.
Supervisor J. Kepier (track shifter) said he made a trip through
this area at about 5:30 p.m. and also again about 8:30 p.m. the
swing shift of 12/18/79 and at about 11:00 p.m. he directed trip
rider Garcia (whom he also sa:ld was at t.he controls of the Clayton
4A225 motor) and motorman Sullivan to go through the area of low
clearance between A2-A2 1.4 switch and A2-A2 3.8 and pull some muck
from# 2 raise in A2-A2 3.8 track drift •
.Supervisor B. Chavez (level foreman) said he was standing near the
A2-A2 1.4 at about 11:20 p.m. as ciayton # 225 motor and 4 empty
mine cars went by and entered ·the area between A2-A2 1.4 switch
and A2-A2 3.8 switch. He said he followed and went through this
same area to the A2-A2 3.8 switch where this motor was setting
stopped with trip rider Garcia at the controls. He said he discussed an earlier fall at # 2 raise area with motorman Sullivan.
He said he then told them (Garcia) not to go through to #2 raise
and just to leave the area and go back out. He said the motor and
the cars went back through the low clearance area between A2-A2 3.8
switch and A2-A2 1.4 switch.
The stipulated facts show that at the time of the accident Garcia was
operating the locomotive and Sullivan was riding in the last ore car as they

1170

traveled from A2-A2 3.8 switch towards the A2-A2 1.4 switch. As the
locomotive approached the A2-A2 1.4 switch, Sullivan sensed something was
wrong as the train appeared to be moving at a coasting speed. Sullivan
climbed over the cars to the locomotive and found Garcia had sustained a head
injury which ultimately resulted in his death.
Prior to the accident Chavez had walked from A2-A2 1.4 switch to the
A2-A2 3.8 switch to check on a reported ground fall and did not see a broken
timber in the area. Sullivan had also walked the same area at 11:20 p.m. and
had not observed a broken timber. However, as Chavez walked back past A2-A2
3.8 switch towards the A2-A2 1.4 switch he saw one broken timber. Sullivan
also saw the broken timber as the locomotive and cars proceeded towards the
A2-A2 1.4 switch. The broken timber cap was located 45 feet north of the
A2-A2 3.R switch and would be between that switch and A2-A2 1.4 switch.
Petitioner contends that respondent's failure to provide adequate height
in the tunnel through which the haulage locomotive traveled violated 30
C.F.R. § 57.11-1 which states as follows:
Mandatory.

Safe means of access shall be provided and
maintained to all working places.

Respondent has challenged the citation in controversy for the following
reasons: (1) that it has always provided and maintained safe passage and safe
transportation of employees to and from working areas and thus could not have
violated section 57.11-1; (2) that standard 57.11-1 is unconstitutionally
vague; (3) that the standard is overbroad; (4) that 57.11-1 is a general
standard and specific standards exist which could have been cited but were
not; and (5) that respondent paid the penalty for a specific standard
relating to the condition of the haulage-way between A2-A2 1.4 and A2-A2 3.8
switches and thus should not be assessed twice for the same violation.
Respondent also contends that the hazard is not defined in 57.11-1 and that
the violation should not have been designated as significant and substantial.
Further, a claim is presented by the respondent alleging that it should be
reimbursed the sum of $214,500.00 expended in reconstruction of the
haulage-way as abatement of the citation.
Based upon a careful review of the stipulated facts and exhibits in this
case, I reject respondent's arguments and find a violation of the cited
standard occurred.
I.

Respondent has always provided and maintained safe
passage and transportation to and from working areas
and thus could not have violated section 57.11-1.

In support of its position, respondent points out that miners Garcia,
James Keller, Harry Morgan and his track crew, and Chavez had all passed
through the haulage drift between the A2-A2 1.4 .and A2-A2 3.8 switches,
either walking or riding, without incident prior to the accident. Furthermore, miners had passed through the area on prior shifts due to the #2 raise
being an active working area of the mine from which ore was being drawn.

1171

This argument is predicated on a false premise .that because an accident
or injury had not occurred in the past, no hazard existed in the passage-way
due to the low clearance. The facts do not support this contention. First,
the measurements taken by the MSHA inspectors following the accident
involving Garcia show that at a point near the broken timber cap there was
1/2 inch of clearance between the top of the locomotive and the top of the
passage-way. The locomotive at its highest point was measured to be 61
inches from the top of the rail. The front of the locomotive was 7 inches
lower to allow the operator to have vision to the front. At the point where
the broken timber cap was discovered, there was 57 inches clearance on its
lowest side from the rail. These measurements indicate by the limited amount
of clearance provided for passing locomotives and ore cars that there is no
room for error or an unexpected event. The broken timber cap is an example
of an event that portends the existence of a dangerous condition. The
primary issue here is whether, in light of the minimum amount of clearance,
"safe means of access" is provided. I find that this situation in the
haulage-way of an active working area of the mine creates a hazard to the
safety and health of the miners and therefore violates the provisions of
standard 57.11-1. Further, the strongest support for this position is the
fact that an accident did occur at this location resulting in a head injury
to a motorman on the locomotive and utimately his death.
Respondent also argues that the standards under the Act applying to
underground coal mines makes provisions for cabs and canopies but allows
variances which permit the mining machines to operate with extremely limited
clearance in mining the coal seams. I find no merit in this argument as we
are not involved with the equipment used to extract coal here but rather with
a haulage-way used for the movement of locomotives and ore cars from one
location to another. Also, it not the purpose in deciding the facts in this
case to consider them in light of the provisions that apply to underground
coal mining. They are distinct and separate provisions.
0

2.

Standard 57.11-1 is unconstitutionally vague

Respondent in his brief argues that the operator has no way of knowing
what "safe means of access" requires and therefore it is vague and unclear.
For example, "means of access" may be defined in terms of passage-ways·
themselves or in terms of conveyances which transport persons through
passage-ways. In contrast, respondent alleges that sections of the underground coal standards specify certain distances concerning clearances in
haulage-ways·.
The Commission in a recent decision addressed the argument of a standard
being unconstitutionally vague in Alabama By-Products Corporation, 4 FMSHRC
2129-2130 (December 1982), and stated as follows:
In order to pass constitutional muster, a statute or standard
thereunder cannot 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

1172

[must] give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act accordin.gly."
Grayned v. City of Rockford, 408 U.S. 109, 108-109
( 1972).
Therefore, under 30 C.F.R. § 75.1725(a) in deciding whether
machinery or equipment is in safe or unsafe operating condition,
we conclude that the alleged violative condition is appropriately
measured against the standard of whether a reasonably prudent
person familiar with the factual circumstances surrounding the
allegedly hazardous condition, including ~ny facts peculiar to
the mining industry, would recognize a hazard warranting corrective
action within the purview of the applicable regulation. (emphasis
added). See e.g., Voegele Co. Inc. v. OSHRC, 625 F. 2d 1075 (3d
Cir. 1980).-This test was applied by the Connnission in U.S. Steel Corp., 5 FMSHRC 3
(January 1983), which stated that the adequacy of an operator's efforts to
comply with a general standard should be evaluated by reference to an
objective standard of a reasonably prudent person familiar with the mining
industry and the protective purpose of the Act. Also, see Great Western
El.ectric Company,
FMSHRC
(May 25, 1983).
I conclude from the stipulated facts presented in this case that a
reasonably prudent person familiar with the pecularities of the mining
industry would recognize that a hazardous condition was created by the
limited clearance in the haulag~-way and would increase the height of this
section of the mine. As stated before, the mere existence of a 1/2 inch of
clearance between the top of the locomotive and top of the haulage-way should
indicate to management that the slightest deviation in the top or supports,
such as timbers, or a careless mistake by a motorman or miner riding in the
ore cars could cause serious injury. Based upon the criteria set by the
Commission in their recent decisions and the facts presented in this case, I
find that the general standard is no~ dnconstitutionally vague.
3.

The standard is overbroad.

I likewise reject the argument that the standard is so ambiguous and
overbroad as to be void under the statute. Again, the Commission has stated
1n Alabama By-Products Corporation, supra, as follows:
Broadness is not always a fatal defect in a safety and health
standard. Many standards must be "simple and brief in order to
be broadly adaptable to myriad circumstances." Kerr-McGee Corp.,
3 FMSHRC 2496, 2497 (November 1981). · See Ryder Truck Lines, Inc.
v, B~ennan 497 F. 2d 230, 233 (5th Cir-:-1974).
In the present case, I find that the requirement 1n the standard that
the operator must provide and maintain a "safe means of access" to all
working places is neither overbroad nor ambiguous. There is no question that

1173

this particular standard can be applied to a "myriad" of different
circumstances and locations in the mine. However, the requirement of a "safe
means of access" in a mine must be considered to be a basic requirement for
the protection of the miner's health and safety. The difficulty in application of a standard to a given situation, as is the case in many
standards, is the different interpretation as to what is considered "a safe
means of access." As examples, in Homestake Mining Company, 2 FMSHRC 23167
(August 1980)(ALJ), the judge decided that in a passageway where a ladder was
installed for a distance of six feet a clearance of only 13 inches between
the ladder and the back of the passageway was dangerous to miners climbing up
and down with their equipment and did not provide a "safe means of access,"
and violated 57.11-l. In The Hanna Mining Company, 3 FMSHRC 2045 (September
1981), the Connnission affirmed a finding that travel underneath an overhead
belt by miners was an "unsafe means of access" and violated 57 .11-1 as did a
large ore spill in an aisle. These representative cases indicate several
different types of situations where the standard 57.11-1 was applied. I see
a similarity between the application of the standard in those circumstances
and varied locations and the conditions in the haulage-way being considered
here. First, the haulage-way is a location in the mine that must be
considered a "working place" for miners. Under section 57.2, Definitions,
"working place" means any place in or about a mine where work is being
performed.
I conclude that the respondent has failed to establish in his arguments
that the Secretary exceeded his rulemaking authority under the Act in
adopting the general standard at issue requiring that a "safe means of
access" be provided and maintained in the "working place" of the mine.
4.

Standard 57.11-1 is a general standard and there exist specific standards
which could have been cited but were not.

Respondent contends that the enforcement scheme and standards under the
Occupational Safety and Health Act of 1970 (OSHAct) are similar to those of
the Federal Mine Safety and Heal th Act of 1977 (MSHAct). Further, that it is
a well established doctrine under OSHAct that if there exists an applicable
specific standard and that standard is not cited because a more general
standard is cited, the citation of the general standard must be vacated.
Trojon Steel Company, 3 OSHA 1384 (1975). It has been held by Occupational
Safety and Health Review Commission that a citation for the violation of
section 5(a)(l) is invalid and will not lie where a duly promulgated
occupational safety and health standard is applicable to the condition or
practice that is alleged to constitute a violation of the Act. Brisk
Waterproofing Company, Inc., 1 OSHA 1263 (July 1973). Respondent suggests
that the Federal Mine.Safety and Health Review Connnission should follow this
precedent in the interest of administrative and judicial economy (Resp. Br.
14).
This defense must be rejected. Admittedly, the OSHAct and MSHAct acts
have similar statutory language and were enacted to protect the health and
safety of certain employees in the work place. However, there are some very

1174
\

'

distinct differences in the two laws as adopted by Congress. One of the most
noticeable differences involves the provisions of section 5(a)(l) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat.
1590 which is frequently referred to as the "general duty clause." 2 /
This provision of the OSHAct was adopted by Congress to take effect-where
there was not a precise standard to cover every conceivable situation that
may arise. See Senate Committee on Labor and Public Welfare, S. Rept. No.
91-1282, 9lst Cong., 2d Sess (1970 at 9, 10, p. 21).
The "general" designation under which section 57 .11-1 is listed in the
MSHAct. is for a different purpose than the respondent would contend.
"General" in this instance, refers to the fact that this standard applies to
both "Surface and Underground" mining under a heading of "Travelways." These
titles are listed in the regulation under the heading"§ 57.11 Travelways and
escapeways."
5. Respondent should not be required to pay twice for the same condition
or violation
The facts show that respondent was also issued Citation No. 152050 in
connection with the investigation of the accident in this case and citation
being contested herein. Citation No. 152050 alleged a violation of standard
§ 57.9-104 which states as follows:
Mandatory.

Warning devices or con~picuous markings shall be
installed where chute lips, ventilation doors, and
obstructions create a hazard to persons oi equipment.

.

The citation reads as follows:
"The timber caps in A2 haulage drift between A2-1.4 and A2-3.8
did not have warning devices or conspicuous markings to warn
persons operating a clayton locomotive of the low clearance
area •. The timber caps range from 57" to 67" in height from the
track rails. The clayton locomotive measures 61" from the track

2/

Sec. S(a) Each employer~

(1) shall furnish to each of his employees employment and a place of
employment which are free from recognized hazards that are causing or are
likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this Act.
(b) Each employee shall comply with occupational safety and health
standards and all rules, regulations, and orders issued pursuant to this Act
which are applicable to his own actions and conduct.

1175

rail.

A2 haulage drift is the only haulage access from # 2 and

# 4 ore raises in 3.8 haulage drift on 1700 level."
Respondent argues that Citation No. 152050 involves the same area,
measurements and same alleged violation being considered in this case involving No. 151666. Further, respondent has paid the proposed penalty
assessment involving 152050 and that it would be res judicata to retry this
again.
The respondent fails in this argument for the facts show that two
violations of mandatory safety standards occurred here. First, the
respondent was cited for, and I find, violation of 57.11-1 requiring a safe
means pf access be provided and maintained to all working places. As to
Citation No. 152050, the violation charged was for failure to have warning
devices or conspicuous markings installed where a hazard existed. These are
two separate violations. It is well settled that the 1977 Mine Act imposes a
duty upon operators to comply with all mandatory safety and health standards.
It does not permit an operator to shield itself from liability for a
violation of a mandatory standard simply because the operator violated a
different, but related mandatory standard. El Paso Roc.k Quarries, Inc.,
3 FMSHRC 35 (January 1981), Southern Ohio Coal Company, 4 FMSHRC 1459 (August
1982).
6. The violation of Section 57.11-1 was not significant and substantial.
Respondent contends.that because the standard cited here is so vague as
not to define the hazard, it should not have been designated as significant
and substantial.
I also reject this argument as being without merit. The standard must
be given a rational and reasonable interpretation. The "safe access" referred to must be viewed in the light of the danger that exists to miners who
are working in the area and in this instance traveling on the locomotive and
ore cars through this area of restricted clearance. The standard must be
construed to effectuate its obvious purpose - safety. To accept respondent's
interpretation would be inconsistent with that purpose.
The test for a "significant and substantial" violation was laid down by
the Commission in Secretary of Labor v. Cement Division, National Gypsum
Company, 3 FMSHRC 822, April 7, 1981, also a civil penalty case. In that
case the Commission held that a violation is "significant and substantial"
if: "[B]ased upon the particular facts surrounding that violation there
exists a reasonable likelihood that the hazard contributed to will result in
an injury or illness of a reasonably serious nature."

1176

From the facts before me in this case, there was a reasonable likelihood that
miners traveling on either the locomotive or ore cars through the area in the
haulage-way of the mine cited herein as having restricted clearance could
receive injuries of a "reasonably serious n;;iture" by having a part of his
person come in contact with the top of the haulage-way. In the instant case,
a miner suffered head injuries, ultimately resulting in his death. This is
sufficient, as an example of the potential hazard that existed in the area,
to meet the test set out by the Cormnission, and warrants that the violation
of the standard be designated as significant and substantial.
In view of my finding that a violation of standard 57.11-1 existed as
alleged in Citation No. 151666; I am not obliged to make a determination of
the ~erits of respondent's contention that it should be reimbursed for the
funds expended increasing the clearance in the haulage-way. The fact is that
respondent was required to do so in abatement of the alleged violation, which
ultimately was accomplished and the hazard eliminated.
PENALTY
After respondent abated the violation, the Secretary terminated the
withdrawal order and proposed a civil penalty of $7 ,500.00 for the alleged
violation.
As part of the stipulated facts in this case, it was shown that
respondent's mine employed 916 persons in December 1979, operating three
eight hour shifts six days a week. This would indicate a large mine
operation.
No argument was advanced by respondent that payment of the proposed
penalty in this case would jeopardize its ability to continue in business.
Therefore, it is presumed that if a penalty is assessed, it will not do so.
The Secretary appended to his brief filed in this case a certified copy
of a computer print-out showing res~ondent's assessed violation history
beginning December 20, 1977 through December 20, 1979, the day of the
accident. Respondent raised no objection to this computation of assessed
violations so it is presumed that it does not disagree with the figures. The
printout shows for the period covered, that respondent was assessed and has
paid the penalty for 245 violations.
I find from the facts in this case that the negligence on the part of
respondent was high as the restricted clearance in the haulage-way was
visible to all who traveled through this area. However, the stipulated facts
do not show that respondent's supervisors, or Sullivan, Garcia's partner, saw
the broken timber cap before the accident occurred. I do not find that this
condition of a broken timber cap was established as the direct cause of the
injury to Garcia, although it may have been, but rather, find that the

1177

-restricted height-i-n--·th-is haula-g-e~way was th-e hazard -and the cause ot the
injury to the miner.
·The gravity is also high. The seriousness of the type of injury that
occurred in this case should have been forseen by the respondent. Also, the
lives of many miners were endangered by this condition as the haulage-way was
regularly used and is an active working part of the mine.
The respondent did abate the hazard by enlarging the haulage-way and
providing adequate clearance in the area. This required respondent to expend
the sum of $214,500.00 plus lose some production in the mine. When assessing
a penalty where there is a vacated withdrawal order, it is prGper to take
into account the economic loss suffered by the operatvr as a consequence of
the order. See North American Coal Company, 1 MSHC 1131, 3 IBMA 93 (April
1974).
I cone 1 ude, based on all of the above findings and ·factors, that a
penalty of $2,000.00 is proper in this case. I believe a reduction in the
amount of the proposed penalty assessment is warranted for the reason that
the respondent did pay another penalty withoot contest and expended a large
sum of money in abatement of the violation.
DOCKET NO. CENT 80-387-M
This case involves a 104(a) 3 / Citation No. 151667 issued to the
respondent alleging a violation of 30 C.F.R. § 57.3-26. The condition or
practice for which respondent is cited is described in the citation as
follows:
There is a damaged and broken timber cap creating a hazardous
condition for haulage equipment that was directed to travel
through the area between A2-A2 1.4 switch and the A2-A2 3.8
switch on the 1700 level in that one of the timber caps 41 feet·
north from A2-A2 3.8 switch is broken horizontally about halfway along its length and was hanging down to within 57 inches
over the left side track rail (looking south).
The haulage equipment (Clayton locomotive #225) directed

3/ Sec. 104(a) If, upon inspection or investigation, the Secretary or his
authorized representative believes that an operator of a coal or other mine
subject to this Act has violated this Act, or any mandatory health or .safety
standard, rule, order, or regulation promulgated pursuant to this Act, he
shall, with reasonable promptness, issue a citation to the operator. Each
citation shall be in writing and shall describe with particularity the nature
of the violation, including a reference to the provision of the Act,
standard, rule, regulation, or order alleged to have been violated. In
addition, the citation shall fix a reasonable time for the abatement of the
violation. The requirement for the issuance of a citation with reasonable
promptness shall n6t be a jurisdictional prerequisite to the enforcement of
~ny provision of this Act.

1178

by Supervisor J. Kepler (track shifter) to travel through
this area measured 61 inches from its top to track rail.
Supervisor J. Kepler said he passed through this same area
twice earlier in the shift.
30 C.F.R. § 57.3-26 provides as follows:
Mandatory.

Timbers used for support of ground in active workings
shall be set, blocked, or blocked and wedged so that
a fit is achieved.
Damaged, loosened, or dislodged
timbers which create a hazardous condition shall be
promptly repaired or replaced.

Without further explanation, Petitioner in his brief stated that he
chose not to brief the issues surrounding 30 C.F.R. § 57.3-26 but instead
addressed hip entire argument to standard 30 C.F.R. § 57.11-1 which refers to
the alleged violation contained in Docket No. CENT 80-386-M. This failure on
the part of petitioner to afford the adjudicator the benefit of his arguments
on the issues in this case could be construed as tantamount to an abandonment
of his petition against the respondent. However, I am required to abide by
the decisions of the Federal Mine Safety and Health Review Commission which
holds that section llO(a) of the Act mandates zn assessment of a penalty for
any violation of a mandatory safety standard. I Island Creek Coal
Company, 2 FMSHRC 279 (February 1980), Van Mulvehill Coal Company, Inc., 2
FMSHRC 283 (February 1980). Therefore, if I find a violation of the cited
standard, from the stipulated facts in this case, I will assess a penalty.
Respondent has admitted in its brief that a broken timber cap was
discovered in the haulage-way at approximately the same time the accident
occurred, The remaining issue to be decided is whether the broken timber cap
created a hazardous condition contemplated by standard 57.3-26. Respondent
argues in its brief that existence of the broken timber cap in the haulageway between the two switches did not create a hazardous condition. The basis
for this reasoning is that 57.3-26 applies to ground control or control of
the top of the haulage~way and was not related to the hazard of restrictive
clearance or obstructions (Resp. Br. 22-23),
I concur with respondent that this standard is included under part
57.3 of the regulation that is designated "Ground control" in "Underground"
mines. The general tenor of the other standards that precede and follow
57.3-26 are directed towards support and control of ground in underground
mines. The question here is what was the hazardous condition cited by the
§

4/ Sec. llO(a) The operator of a coal or other mine in which a violation
occurs of a mandatory health or safety standard or who violates any other
provision of this Act, shall be assessed a civil penalty by the Secretary
which penalty shall not be more than $10,000 for each such violation. Each
occurrence of a violation of a mandatory health or safety standard may
constitute a separate offense.

1178

~"Spector when he issued this citation?
In the condition or practice
section in the citation, the inspector wrote "There is a damaged and broken
timber cap creating a hazardous condition for haulage equipment •••• " There
is no further statement as to whether the hazard was the possibility of a
ground fall or cave-in, or rather to a locomotive or miner striking the
timber in passing through the area, or both.

It is unfortunate that the Secretary elected not to brief the issues in
this case as his arguments and authorities would have been most helpful.
However, I am compelled to resolve the issues in spite of this. I am
persuaded by a careful review of the statement of the inspector in the
citation describing the conditions as he found them that he contemplated a
hazard to the equipment from the broken timber falling down into the upper
portion of the haulage-way. This determination is based upon the fact that
included in this description is the measurements of the restricted clearance
created by the broken timber described as" •.• broken horizontally about
halfway along its length and was hanging down to within 57 inches over the
left side track rail (looking south). 11
If the above assumption is incorrect, and the inspector had intended to
cite a hazard for roof control, I would have to find that there was not a
violation of the standard. Th~ facts show that the broken timber cap was
first observed immediately before the accident occurred. There is no
evidence in the stipulated facts to show that this condition had existed for
a period of time or that respondent had prior knowledge. Further, there is
no evidence that this one broken timber cap amongst the others installed in
the area created a hazard of a fall or cave-in. The standard contemplates
that timbers that are damaged, loosened, or dislodged and create a hazard
shall be promptly repaired or replaced. The crucial word appearing in this
standard is "promptly." In the case Magna Copper Company, 3 FMSHRC 349
(February 1981)(ALJ), involving standard 57.3-26 and similar facts, Judge
Carlson stated in part as follows:
Respondent is perhaps correct that a ~ine operator need not
replace every damaged or weakened support. But if that is so,
the Secretary is doubtless correct in insisting that where a
damaged support in a working area of a mine is not replaced,
that decision must rest on a thorough and prudent assessment
of the effect of weakened support on safety.
In the above case, the damaged support existed for a year and
respondent's own safety engineer believed it should have been replaced and a
violation was found. That is not the case here. The evidence neither shows
that the support was necessary for adequate ground control nor that it had
existed for any period of time.
However, if the assumption is correct that the hazard contemplated by
the inspector was a danger to the locomotive or miners passing underneath due
to a restriction of clearance, then the issue is whether the standard was the
proper one to be applied in issuing the citation. In the case of Phelps

1180

Dodge Corporation v. Federal Mine Safety and Health Review Commission, 681 F.
2d 1189 (1982), th~ United ·states Court of Appeals for the Ninth Circuit
considered the same issue as presented by respondent in this case, although a
different standard and unidentical facts. The Court found that the
application of a regulation in a particular situation may be challenged on
the ground that it does not give "fair warning" that the alleged violative
conduct was prohibited. See Daily v. Bond, 623, F. 2d 624, 626-627 (9th Cir.
1980). In the Phelps Dodge case, the contention was that the standard cited
was to protect against hazards of electrical shock and not hazards of
removing rocks from a chute. The Court concluded and stated as follows:
The regulation inadequately expresses an intention to reach the
activities to which MSHA applied it. Therefore, we join in the
observation: "If a violation of a regulation subjects private
parties to criminal or civil sanctions, a regulation cannot be
construed to me.an what an agency intended but did not adequately
express" (citation omitted).
The Court found that the Secretary had abused his discretion in applying
the standard under electrical hazards to non-electrical hazards.
Under the doctrine adopted in the above case, I find that the standard
applied in this case is unconstitutionally vague as to all hazards except
when applied to the hazards associated with ground support. As I stated
before, I do not find a violation of 57.3-26 as to the requirements of the
standard relating to ground control and prompt replacement, or repair of
broken timbers. If the Secretary had wished to cite the respondent for a
broken timber cap, creating a hazard to the movement of locomotives and means
through an area of restricted clearance, there are other standards he could
cite. I therefore vacate Citation No. 151667.
CONCLUSIONS OF LAW
1. Respondent was subject to the provisions of the Federal Mine Safety
and Health Act in the operation of the Northeast Churchrock Mine at all times
pertinent hereto, .and the undersigned Administrative Law Judge has
jurisdiction over the parties and the subject matter of these proceedings.
2. Respondent was in violation of the mandatory standard in 30 C.F.R.
57.11-1 by reason of the fact that it failed to maintain a safe means of
access to all working places in that there was limited and restrictive
clearance height in the haulage-way between A2-A2 1.4 and A2-A2 3.8
switches.
3. Respondent did not violate standard 30 C.F.R. § 57.3-26 and said
Citation No. 151667 is vacated for the reason that the standard is unconstitutionally vague as to a hazard to miners because of restricted
clearance in the haulage-way due to the broken ·timber cap dropping or hanging
down therein.

1181

ORDER
WHEREFORE IT IS ORDERED that:
1.

Citation No. 151667 is vacated.

2. Citation No. 151666 is affirmed and respondent shall pay the
Secretary of Labor the above-assessed penalty, in the amount of $2,000.00,
within 40 days from the date of this decision.

Distribution:
Eloise V. Vellucci, Esq.
Office of the Solicitor
United States Department of Labor
555 Griffin Square, Suite 501
Dallas, Texas 75202
Wayne E. Bingham, Esq.
Pickering & Bingham
920 Ortiz N.E.
Albuquerque, New Mexico

87108

1182

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

June 28, 1983

LOCAL UNION 6025, UNITED MINE
WORKERS OF AMERICA,
Complainant

v.

Complaint of Discrimination
Docket No. WEVA 80-429-D
Bishop Mine

BISHOP COAL COMPANY,
Respondent
ORDER OF DISMISSAL
The above-captioned matter has been reassigned to the
undersigned administrative law judge.
This proceeding is a complaint of discrimination filed
by Local Union 6025, United Mine Workers of America against
Bishop Coal Company. The UMWA has filed a letter which
advises that a settlement has been reached in this matter.
The operator has reimbursed the Local Union for the wages
it paid to those miners who participated in the spot
inspections at issue. The operator has also paid interest
to the Local Union on the wages it paid out and reimbursed
the International Union for the costs incurred in prosecuting
this matter. The UMWA requests that this proceeding be
dismissed.
Accordingly, it is hereby ORDERED that this matter is
DISMISSED.

Law Judge
Distribution:

Certified Mail.

Mary Lu Jordan, Esq., United Mine Workers of America,
900 15th Street, N.W., Washington, DC 20005
Robert M. Vukas, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241

1183

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

JUN 3 0 1983

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

CIVIL/PENALTY PROCEEDING
Docket No. LAKE 82-38
A.O. No. 11-00609-03034

v.
Captain Mine
SOUTHWESTERN ILLINOIS COAL
CORPORATION,
Respondent
DECISION
Appearances:

Rafael Alvarez, Esq., Office of the Solicitor, U.S.
Department of Labor, Chicago, Illinois, for
Petitioner;
Brent L. Motchan, Esq., St. Louis, Missouri, for
Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
The parties have filed cross motions for summary decision •
based on the pleadings, affidavits and admissions, and each asserts
that there is no genuine issue of material fact necessitating a
hearing.
Each party has filed a memorandum in su~port of its position.
Based on the entire record and considering the contentions
of the parties, I make the following decision.
FINDINGS OF FACT
1. At all times pertinent to this decision, Respondent owned
and operated a surface coal mine in Perry County, Illinois, known
as the Captain Mine.

•

2.
Bituminous coal is extracted from the subject mine and the
operation of the mine affects interstate commerce.
3.
Respondent produces over two and one-half million tons of
coal annually at the subject mine, and employs approximately
600 miners.
I find that Respondent is a large operator.

1184

4.
There were 53 violations at the subject mine during the
year prior to.the violation alleged herein.
I find that penalties
otherwise appropriate shoulq not be increased because of the
operator's history of previous violations.
5.
The imposition of a penalty in this case will not affect
Respondent's ability to continue in business.
6.
On September 18, 1981, Federal Coal Mine Inspector
Ronald M. Zara issued a citation to Respondent under 104(a) of the
Mine Safety Act charging a violation of 30 C.F.R. § 77.1710(g).
7.
The condition which prompred the issuance of the citation
was the following:

•

On Septe~ber 18, 1981, Tom Johnson, a company engineer, was
working approximately 18 feet above the ground on the lazer tower
and was not wearing a safety belt.
His knee was around the vertical
leg of the tower and he was using both hands to reposition the lazer
sending unit.
8.
The alleged violation was abated when Mr. Johnson was
removed from the lazer tow~r and instructed in the use of safety
belts.
The citation was then terminated.
9.
Respondent had a written safety policy at the time of the
alleged violation herein.
The policy required all employees to
comply with Federal mine health and safety regulations and specifically provided that "safety belts and lines shall be worn at all
times where there is a danger of falling.~'
The safety policy contained an enforcement procedure providing for notices of violation,
suspension without pay and discharge.
Between October 1978 and
April 1983, approximately 60 violations notices were issued for
violations of the safety policy, four of which were for failure to
wear safety belts.
In addition, one person was discqarged, three
were suspended and six received disciplinary letters during the
same period of time, for violations of company safety rules.
10.
A safety belt was not present on the ground lazer unit
where the employee involved herein was working on September 18·,
1981.
However, safety belts were present in the mine supply office,
the safety office and the tipple.
The subject employee's office
was adjacent to the safety office and approximately 50 feet from
the mine supply office.
There was also a safety .belt present on a
machine located about 3 minutes walking distance from the ground
lazer unit.
11.
The employee had received safety training and specifically
had been instructed in the requirement to use safety belts, and the
proper method of using them.

1185
•
/

\

\

12.
There is no evidence that any supervisory p~rson was
present in the area where the employee was working or was aware
that he was working without a safety belt.
REGULATION
30 C.F.R. § 77.1710 provides in part:
Each employee working in a surface coal mine
or in the surface work areas of an underground coal
mine shall be required to wear proteitive ~lothing
and devices as indicated be~ow:

*

*

*

*

*

*

*

•

(g)
Safety belts and lines where there is danger
of falling; a second person sha11 tend the lifeline
when bins, tanks, or other dangerous areas are entered.
ISSUES
1.
Whether the decision of Judge Koutras reported in 3 FMSHRC
871 is ~ judicata in the present proceeding.
2.
Whether the fact that an employee was working 18 feet
above ground in a situation where there was a danger of falling in
itself establishes a violation of 30 C.F.R. § 77.1710(g)?
3.
If the answer to issue 2 is negative, whether Petitioner
has established that Respondent failed to requ~re its employees to
wear safety belts where there is a danger of falling.
CONCLUSIONS OF LAW
1.
Respondent is subject to the provisions of the Federal
Mine Safety and Health Act of 1977 in the operation of the Captain
Mine, and the undersigned Administrative Law Judge has jurisdiction
over the parties and subject matter of this proceeding.
2.
A decision by a tribunal of competent jurisdiction is
judicata in a subsequent proceeding between the same parties
involving the same issue, even if·the first proceeding is pending
on appeal.

~

DISCUSSION
Under the rule followed in the federal courts, ~ judicata
or collateral estoppel precludes a party from raising an issue that
has previously been dec~ded against him even if the prior decision
has been appealed.
Deposit Bank v. City of Frankfort, 191 U.S. 499
(1903); United States v. Abatti, 463. F. Supp. 596 (D.C. Calif. 1978).
A different rule is followed in a minority of state courts, but it
seems clear that the Review Com~ission should follow the federal
rule.

1186

3.
The case decided by Judge Koutras, Secretary v.
Southwestern Illinois Coal Corpor~tion, 3 FMSHRC 871 (1981)
involved the same parties and the same mine as the instant case.
Respondent was charged with violating the same mandatory safety
standard.
The Secretary apparently contended that the failure of
a miner to wear a safety belt where a danger of falling exists is
a violation~~ of 30 C.F.R. § 77.1710(g).
Judge Koutras
decided this issue adversely to the government on the authority of
North American Coal Corporation, 3 IBMA 93 (1974).
The government
had a full and fai~ opportunity to litigate this issue and is
estopped from relitigating it here.
4.
Therefore, applying the 'Principle of ~ judicata, the
fact that an employee was working 18 feet above ground in a situation where there was a danger of falling does not in itself establish a violation of 30 C.F.R. § 77.171-0(g).
5.
Since I cannot assume that the evidence before Judge
Koutras is the same as is now before me, his decision is not
~ Judicata on the issue whether Petitioner established that
Respondent failed to require its employees to wear safety belts in
situations involving a danger of falling.
6.
I conclude on the basis of the evidence before me that
Petitioner has not established that Respondent failed to require
that its employees wear safety belts wher~ there is a danger of
falling.
The evidence shows clearly that employees were instructed
to wear safety belts in such situations and that the instruction
was enforced by disciplinary action.
ORDER
On the basis of the above findings of fact and conclusions of
law, Petitioner's motion for summary decision is DENIED; Respondent's
motion for summary decision is GRANTED; Citation No. 1115998 is
VACATED; Petitioner has previously voluntarily vacated Citation
No. 1115976.
Therefore, the proposal for a penalty is DISMISSED.

J 4t<Aiv ~Vl]cfvr,~
James A. Broderick
Administrative Law Judge

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified Mail)
Brent~. Motchan, Esq., 500 North Broadway, Suite 1800, St. Louis,
MO 63102 (Certified Mail)

/fb

1187

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

SECRETARY OF LABOR,
MINE SAFETY_AND HEALTH
ADMINISTRATION (MSHA),
·Petitioner

JUN :3 0 \983

Civil Penalty Proceeding
Docket No. LAKE 82-85
A.C. No: 11-00590-03141 V

v.
OLD BEN COAL COMPANY,
Respondent
OLD BEN COAL COMPANY,
Cqntestant

Contest of Citation or Order
Docket No: LAKE 82-66-R
Citation No. 1222957; 3/11/82

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

DECISION
Appearances:

Mark M. Pierce, Esq., Chicago, Illinois, for Old Ben Coal
Company;

..,

Miguel J. Carmona, Esq., Office of the Solicitor, Chicago,
Illinois, for the Secretary of Labor
Before:

Judge Moore

The above cases were re-assigned from Judge Lasher to me on June 23,
1983, with the statement that Judge Lasher is, because of illness, "unavailable to the agency" as that phrase is used in 5 U.S.C. 554(d).
After considering the evidence, Judge Lasher issued a bench decision which
appears on page 231 of the transcript. I have studied that decision as well as
the testimony, exhibits, and arguments made in the case.
I agree with the bench decision and adopt it as my own. This bench
decision appears below as it appears in the official transcript aside from
minor corrections.
This is a consolidated proceeding arising out of the filing
of a document entitled Application for Review (Notice of Contest)
by Old Ben Coal Company, hereinafter Old Ben, to review Citation
No. 1222957 dated March 11, 1982, and a proposal for a penalty
filed by the Secretary of Labor, hereinafter the Secretary, seeking assessment of a penalty for the violation charged in the same

1183

Citation. The Citation which was issued pursuant to Section 104
(d)(l) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq., charges Old Ben with an infraction of its
Roof Control Plan in violation of 30 CFR 75.200. In its Application for Review, Old Ben challenges the occurrence of the violation as well as the specific findings contained on the face bf
the Citation to the effect that the violation was "of such a
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety and health hazard,"
and also-that the violation resulted from an "unwarrantable failure" on the part of Old Ben to comply with the mandatory health
and safety standards.
In this hearing Old Ben has conceded that the violation occurred as charged in the Citation thus leaving the issues to be
resolved those raised by the two aforesaid concepts inherent in
so-called unwarrantable failure violations, that is, "significant
and substantial" and "unwarrantable failure." Additional issues,
of course, are the amount of penalty which should be assessed for
the.violation admitted to have been committed by Old Ben. Both
parties presented witnesses in this proceeding and submitted documentary evidence and, based upon the evidence of record, I make
the following findings;
Preliminary Findings
On December 11, 1982, Jesse B. Melvin, an Inspector with the
Mine Safety and Health,"Administration, arrived at Old Ben's No. 26
mine at approximately 7:30 a.m. and proceeded on a Section 103(i)
spot inspection of the mine accompanied by Jim Bolen--Old Ben's "top
safety man," according to the Inspector.
At approximately 9:50 a.m., Inspector Melvin observed a continuous miner, operated by James Hawkins, backing out from under an
area of unsupported roof. This area, 14 feet by 22 feet, was
located in the 10 CM 6 unit, ID 014 in the Main South entries. As
charged in the Citation and conceded by Old Ben, the continuous
miner had advanced 38 feet inby the east row of roof support (roof
bolts) and the machine's operator was 16 feet inby the last roof
support in the Se~ond Main South entry.
The pertinent provision of the Roof Control Plan violated
appears on Page 56 thereof (Exhibit P-4) and provides: "No work to
be performed inby per~anent supports unless temporary supports are
installed on five foot centers or less."
The unsupported area in question had been marked by the placement of a danger tag on .a roof bolt on the prior shift (12 midnight
to 8:00 a.m.) but the same was not observed by James Hawkins at the
time he proceeded under the unsupported roof. At least one of the
reasons for this was the dust which was prevalent in the area at the
time.

1189

Old Ben's Section Foreman at the time was Tim Jones. On
March 11~ 1982, Mr. Jones' crew consisted of two continuous
miner operators, Hawkins and John Zimmerman, and, in addition, two
shuttle car operators, two roof bolters, one utility tractor
operator, and one repairman. At approximately 9:00 a.m., Mr. Jones
instructed his employees to clean up the area in question, but Mr.
Jones was not present at the time the violation occurred because of
a power defect which occurred on another piece of equipment requiring his presence at a place some 600 feet distant from the entry in
question.~ Hawkins commenced cleaning up the general area and worked
at this task for approximately 25 minutes before proceeding under
the 14 by 22 foot area of unsupported roof. At the time Hawkins
proceeded into this area, he was unaware that he was entering into
an area not supported by roof bolts in accordance with the Roof
Control Plan. However, Hawkins subsequently realized that he was
working under unsupported roof and even so did not immediately
back out of the area but continued to work under unsupported roof.
His total time under unsupported roof was 10 minutes and he continued to engage in cleaning up the area for a period of approximately seven minutes after he realized he was under unsupported
roof. Hawkins' reason for doing so was that he "went ahead and
cleaned it up" while he was there to avoid "a big move" later on.
When Hawkins first proceeded under the unsupported roof he was
alone. Subsequently, the other operator of the continuous miner,
John Zimmerman, arrived in the vicinity but Zimmerman never placed
himself under unsupported roof. When Inspector Melvin arrived,
Zimmerman made a statement to him to the effect that they had gone
under roof (meaning unsupported roof) before and that this time they
had been caught.
Subsequent to his announcement that a Section 104(d) Citation
would be issued, Inspector Melvin determined that there were conditions or circumstances present in the unsupported roof area which
would or might have increased the likelihood of the occurrence of
the hazard, i.e., that there was a slip in the coal roof and "rock
showing in one place of the roof." (Exhibit P-3).
The danger tag placed by the prior shift on the roof bolt in
the area in question was installed by the mine examiner at that time
because there was bad top in the area of the unsupported roof and
not because it was normal practice to place such a tag in all places
where there is unsupported roof regardless of the condition of the
roof.
Following the determination by Inspector Melvin to issue
Citation No. 1222957 he told Jim Bolen, Old Ben's safety mine
inspector at .No. 26 mine, that to obtain abatement of the Citation, the Roof Control Plan must be read to the crew. The continuous miner operator, Hawkins, was also reinstructed with respect to compliance with the above-quoted provisions of the plan.
Hawkins and Zimmerman were advised by Old Ben management that a

11DO

letter would be placed in their personnel folders indicating that
they were ·involved in the violation which had occurred. Whether
that disciplinary action by Old Ben was ever carried out is unclear since such letters were not in the folders for Zimmerman and
Hawkins at the time of this hearing. Hawkins and Zimmerman were
not otherwise disciplined nor was Tim Jones, the Section Foreman.
No meaningful disciplinary action was meted out by Respondent to
Hawkins.
Hawk1ns had been operating a continuous mining machine for
approximately one year p"rior to March 11, 1982. During that period
of time, Hawkins had worked under unsupported roof 10 to 12 times,
some of which were in the presence of foremen (sometimes referred
to as face bosses). On some of these occasions these foremen made
statements to Hawkins to the following effect: "Don't get caught"
and "I didn't see you." Prior to the violations on March 11, 1982,
Old Ben management personnel had condoned infractions of the same or
similar provisions of the Roof Control Plan by Hawkins.
Had the roof fallen while Hawkins was working under it in the
unsupported area in question, i.e., had the hazard contemplated by
the Roof Control provisions in question come to fruition, Hawkins,
the only employee jeopardized by the violation, could reasonably
have beem expected to sustain injuries ranging from very minor
injuries to either permanently disabling injuries or fatal
injuries.
Hawkins, 22 years,_of age, had he been aware of the "slip" in
the roof observed by Inspector Melvin, would not have continued
working under the unsupported roof area after he had determined that
he was working under unsupported roof area.
Although Old Ben has a "good" safety program in terms of its
format-which includes instructions and training of new employees and
employees who are changing jobs (Exhibits R-2 and R-3),-the
saluorious effect of this safety program is undermined if not
negatived by the actual attitudes and practices manifested by Old
Ben's foremen and other management personnel in the day-to-day
operation of the mine.l

!The unsatisfactory attitudes of Old Ben's management were credibly
described by MSHA's Inspector Supervisor Mike Wolfe who characterized the same as a "lack of sincere desire to comply." This characterization based upon some 12 years' familiarity was supported by
the condonation of Hawkins' infractions over a period of time, the
computerized History of Previous Violations (Exhibit P-5) submitted
in this proceeding, and the statement hereinabove referred to made
by John Zimmerman to Inspector Melvin following his determination to
issue the Citation in question.

1191

The violation committed by Old Ben on March 11, 1982, did not
directly r_esult from negligence on the part of its Foreman, Tim
Jones. The violation resulted in a significant degree from Old
Ben's careless and indifferent approach with regard to requiring
compliance by its miners with safety standards in general and provisions of the Roof Control Plan in particular.
Old Ben is a large coal mine operator with an unusually high
number of violations committed in the prior 24-month period preceding March 11, 1982 (719 violations).
Discussion, Ultimate Findings of Fact and Conclusions of Law
Turning now to the question as to whether or not the violation
in question was of such a nature as can "significantly and substantially contribute to the cause and effect of a mine safety or
health hazard," it is noted that in Secretary of Labor v. Cement
Division, National Gypsum Company, 3 FMSHRC 822, 825 (April 1981),
the Commission defined the phrase "significant and substantial
violation" as being one "if based upon the particular facts surrounding that violation, there exists a reasonable likelihood that
the hazard contributed to will result in injury or illness of a
reasonably serious nature." I have previously found that the occurrence of the event or the hazard contemplated by the provision of
the Roof Control Plan violated would likely result in injuries of a
reasonably serious nature to or the fatality of the continuous
miner operator, James Hawkins. The question remaining under the
National Gypsum test i~ whether or not the violation contributed to
the cause and effect of a mine safety hazard.
The Commission noted in National Gypsum that the Act does not
define the key terms "hazard" or "significantly and substantially."
It was determined that the word "hazard" denotes a measure of danger
to safety or health and that a violation significantly and substantially contributes to the cause and effect of a hazard if the violation could be a major cause of a danger to safety or health. Thus
two facets of general concept are raised by this language: (1) the
likelihood of resulting injury occurring and (2) the gravity or
seriousness of the resulting injury. Significantly, the Commission
in National Gypsum made the observation that "we believe that the
inspector's independent judgment is an important element in making
significant and substantial findings which should not be circumvented." I do not take this statement, however, to mean that the
Inspector's determination must govern or is binding as a general
rule. It can be rebutted. However, on the record in this case and
considering the inherent nature and extreme hazards posed by roof
falls generally, I see no reason not to accept the Inspector's
testimony with respect to the seriousness of the violation in quest ion and the likelihood of the occurrence happening. This is particularly true in view of the condition of the roof in the unsupported area in question even though the same was actually ascertained after the Inspector made his determination. I conclude that
the Secretary in this case has carried its burden of proof with

1192

respect to its "substantial and significant" allegation based upon
the variou~ factual findings which I have previously indicated including the length of time Hawkins spent under unsupported roof and
the condition of the roof at the time Hawkins was under it. I thus
find that there did exist a reasonable likelihood that the hazard
was significantly and substantially contributed to by the violation
and that there was a reasonable likelihood that the hazard, had it
come to fruition, would have resulted in a reasonably serious injury
to Hawkins.
Whether the instant violation was the result of an unwarrantable failure of the operator to comply with the roof control requirement contained on Pag~ 56 of the Plan depends on whether the
violative condition was one which the operator knew or should have
known existed or which the operator failed to correct through indifference or lack of reasonable care. Zeigler Coal Company, 7 IBMA
280 (1977).

I have previously found with respect to Old Ben's indifferent
approach as to compliance with safety standards and condonation of
violations of roof control provisions. Based upon the testimony of
Mr. Hawkins and MSHA Supervisory Inspector Mike Wolfe, whose testimony I do credit, I fi~d that Old Ben exhibit~d a negligent approach
toward insuring compliance with the Roof Control Plan in question.
The statements of section foremen to Mr. Hawkins on occasions when
he was under unsupported roof advising him not to get caught and
indicating that he was not being observed--when in fact he was and
knew he was--created a.-climate of enforcement where Old Ben should
reasonably have foreseen that Hawkins would continue to violate the
Roof Control Plan and the particular provision thereof involved in
this proceeding. I thus conclude that this is a pure application of
the governing definition of unwarrantable failure and that the mine
operator knew of violations and failed to abate the practices constituting such violations, and indeed to some extent the participation of agents of the mine operator (in this case the foremen) involved condonation of violations similar to the ones actually committed by Hawkins in this. case. Accordingly, I conclude that the
operator through these foremen engaged in, as a minimum, indifference, and, as a maximum, a'willful disregard of the safety requirements which in a significant and substantial way contributed to the
occurrence of the violation charged. I thus find no merit in the
application for review in this proceeding.
Penalty Assessment
I have previously found Old Ben to be a large coal mine
operator. It is not one of the giants of the industry. It has an
unsatisfactory history of previous violations. It proceeded in good
faith to achieve compliance with the safety standard violated upon
being notified thereof and in accordance with the abatement terms
specified by the issuing Inspector. Payment of a penalty appropriate to the violation will not jeopardize its ability to continue in
business. I find that the violation in question was extremely

1193

serious and resulted from the negligence of management personnel to
adopt a reasonable enforcement climate with respect to safety
matters at its No. 26 mine in general. No specific negligence in
connection with this violation is attributable to any specific
management person or supervisor. In this connection, I note that
the six statutory assessment factors are necessary to be considered
but they are not all-inclusive.
I consider that the primary factor shown on the record in this
proceeding which would militate for a lessening of the penalty was
the testimony of MSHA's Inspector/Supervisor, Wolfe, to the effect
that in terms of "incidents" (lost time accidents, etc), the No. 26
mine has a commendable record in that such incidents are below the
national average.
Considering these various factors, I con~lude that the
$3,000.00 penalty urged by the Secretary in its narrative of findings for a special assessment contained in Docket No. LAKE 82-85 is
appropriate and it is so assessed.
ORDER
Citation No. 122295~ is affirmed and ~he contest of the Citation (Docket No. LAKE 82-66-R) is dismissed.
In Docket No. LAKE 82-85, Old Ben is ordered to pay a civil
penalty of $3,000.00 to the Secretary of Labor within 30 days from
the date of this decision.

Charles C. Moore, Jr.,
[\.dministrative Law Judge

Distribution:

•

Miguel J. Carmona, Esq., Office of the Solicitor, U. S.
Department of Labor, 230 S. Dearborn St., 8th Floor, Chicago,
IL 60604 (Certified Mail)
•

J

Mark M. Pierce, Esq., Law Department, Old Ben Coal Company,
69 West Washington St., Chicago, IL 60602 (Certified Mail)
Michael Holland, Esq., United Mine Workers of America, 900 15th St., NW, Washington, DC 20005 (Certified Mail)

1194

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

JUN 3 0 1983
SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA),

)
)
)
)

)

DOCKET NO. WEST 80-90-M

)
)
)

MSHA CASE NO. 02-01154-05001

)

MINE: Havarin Ranch Pit & Mill

Petitioner,
v.

MOHAVE CONCRETE & MATERIALS COMPANY
INC.,
Respondent.

CIVIL PENALTY PROCEEDING

)
)
)

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

DECISION

•

Appearances:
Marshall P. Salzman, Esq., Office of the Solicitor
United States Department of Labor
11071 Federal Building, Box 36017
450 Golden Gate Avenue
San Francisco, California 94102
For the Petitioner
Mr. Quinto Polidori
Mohave Concrete & Materials Co., Inc.
4502 Highway 95N
Lake Havasu City, Arizona 86403
For the Respondent
Before: Judge Virgil E. Vail
PROCEDURAL HISTORY

This case arose from an inspection of respondent's sand and gravel
operation at Havarin Ranch Pit & Mill, Lake Havasu City, Arizona. A representative of the Secretary issued four citations, charging violations of
various mandatory safety standards promulgated under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act"). Petitioner
seeks an order affirming the citations and proposed civil penalties.
After notice to the parties, a hearing on the merits was held in
Phoenix, Arizona. Respondent's president appeared pro se on behalf of the
company. No post trial briefs were filed.

1195

ISSUES
1. Did respondent Is activities during "set-up" at the sand and gravel
operation mandate compliance with safety regulations promulgated under the
Act, and justify issuance of citations for violations?
2. If so, what are the appropriate civil penalties that should be
assessed against the respondent for the violations, based upon the criteria
set forth in section· llO(i) of the Act?
STIPULATIONS
At the outset of the hearing, the parties stipulated to several facts
relevant to the assessment of penalties. It was agreed that respondent:
1) is a small business; 2) abatetl the conditions cited as violations quickly;
and 3) had no history of violations prior to. the ones assessed in this case.
The parties further agreed to the Co"1!ffiission's jurisdiction to decide this
case.
SUMMARY OF EVIDENCE
~spondent is owner and operator of a sand and gravel operation at
Havarin Ranch Pit and Mill. In late 1978, respondent started the process of
setting up a new plant which included installing and testing a recentlypurchased rock crusher. This was completed in September 1979.

During January and February of 1979, Inspector Robert Hall of the Mine
Safety and Health Administration (MSHA) made two visits to the non-operational facility. Hall visited the plant again on March 27, 1979. At that
time, he noted gravel material being loaded onto trucks, hauled to the
crusher, dumped into the crusher feed bin, and being processed and
stockpiled, Under the authority of section 104(a) of the Act 1 /, he
issued four safety violation citations regarding such crusher operation.

1/

Section 104(a) provides in pertinent part:

If, upon.inspection or investigation, the Secretary or his authorized representative believes that an operator of a coal or other mine subject to
this Act has violated this Act, or any mandatory health or safety standard,
rule, order, or regulation promulgated pursuant to this Act, he shall, with
reasonable promptness, issue a citation to the operator. Rach citation shall
be in writing and shall describe with particularity the nature of the
violation, including a reference to the provision of the Act, standard, rule
regulation, or order alleged to have been violated. In addition, the
citation shall fix a reasonable time for the abatement of the violation.

1196

EVALUATION OF EVIDENCE
1) Citation No. 371765 - Failure to wear a hard-hat.
Petitioner contends that failure of the crusher operator to w~ar a hard
hat, as noted in citation No. 371765, violates 30 C.F.R. § 56.15-2 which
provides as follows:
Mandatory.

All persons shall wear suitable hard hats when in or
around a mine or plant where falling objects may
create a hazard.

Petitioner contends that during the operation of the crusher, as
observed by the MSHA inspector, the operator was not wearing a hard hat or
any other head protection. Petitioner maintains that such an omission
represents a hazard to the crusher operator's safety, and thus constitutes a
violation of federal regulation. Potential hazards include head injury to an
operator caused by falling rock as it is dumped in the crusher bin, and
flying rock from the crushing process. The inspector testified that such
hazards should have been visually evident to respondent (Tr. 11).
The respondent does not deny that the employee failed to have any head
protection, but challenges issuance of the citation on several other grounds.
First, respondent argues that the sand and gravel facility was still in a
"set-up" status which was not completed until September, 1979. Further, the
crusher was not being operated for commercial production but instead, was
being run for test and mechanical adjustment purposes only. Finally, the
respondent testified that the crusher "operator" was not a true operator, but
a man hired and paid only to install and test the equipment (Tr. 13).
I find that the evidence of record shows that the crusher was being
operated by an employee, for whatever purpose, and that crushed rock was
being produced and stockpiled. The stockpile on the date the citation was
issued was ten feet high, a size consistent with on-going operations (Tr.
25).
The threshold issue to be decided, then, is whether the respondent's
"set-up" activities required compliance with the Act's safety regulations.
"Set-up" activities in this case involved operation of the rock crusher, and
exposure of an operator without head protection to obvious hazards such as
falling rock and potential head injury. Considering such hazards, I see no
justifiable reason to distinguish between such "set-up" activities and those
of a commercially productive operation. The mandatory regulatory provision
requiring hard hats was therefore properly applied to the respondent's
activities, and Citation No. 371765 is affirmed.

1191'

2) Citation No. 371766 - Failure to protect eyes.
On the same day, Hall issued a second citation charging that the crusher
operator was not wearing any type of eye protection. The standard allegedly
violated, 30 C.F.R. § 56.15-4, provides:
Mandatory.

All persons shall wear safety glasses, goggles,
or face shields or other suitable protective
devices when in or around an area of a mine or
plant where a hazard exists which could cause
injury to unprotected eyes.

Hall testified that at the time of his inspection, he observed the
crusher in operation processing material. The employee operating the crusher
wore no eye protection (Tr. 10-11). The hazard involved in such a situation
is the potential injury to an operator's unprotected eyes due to flying rock
particles produced during the mechanical crushing process.
While the respondent does not deny the failure of the employee to wear
any type of eye protection, it again contends that the sand and gravel
facility was only in "set-up" stages, and seems to suggest that an employee
hired only for machinery installations and testing purposes should be outside
the control of such safety regulations. Despite the "set-up" status of
respondent's facility and the temporary duration of the employee's work, I
again find the hazards of such on-going "set-up" activities sufficient to
warrant issuance of a citation for failure to wear eye-protection. Accordingly, I affirm Citation No. 371766.
3) Citation No. 371767 - No working platform on crusher.
A third citation was issued when Hall observed that a platform had not
been provided on the crusher for the operator. Instead, as noted in the
citation, "[t]he operator had to climb upon feeder frame to perform his
duties." The standard allegedly violated, 30 C.F.R. § 56.11-1, provides
Mandatory.

Safe means of access shall be provided and
maintained to all working places.

Hall testified that on the day of the citation's issuance, he observed
the crusher operator climb up the crusher, and balance on a 2 1/2 to 3 inch
beam over the conveyor belt to do his work (Tr. 41). The operator was
observing the feed and removing trash as it passed on the conveyor belt at
the time of Hall's inspection (Tr. 42). A loss of balance by the operator
would have resulted in either a fall forward onto t~e conveyor belt, or
backwards onto the ground (Tr. 41). To minimize such hazards, the inspector
recommended provision of a ladder and platform for easy and safe access.
The respondent did not deny lack of such access, and had corrected the
situation with a ladder and platform by the next day. However, in rebuttal,

119B

it claimed that such access to the operating crusher would not be required
once all testing of the machinery had been completed. An individual, respondent stated, would need to be in a position over the machine, in order to
remove debris, only during "set-up" (a period of about five months) (Tr. 44).
In contrast, normal operating procedure would require the operator to stand
approximately fifty feet from the machine, and shut down the crusher if a
problem developed (Tr. 43).
Despite such testimony as to th~ temporary nature of difficult and
unsafe access, I find that the employee's precarious working position over
the operating conveyor belt and the long period of time involved -in
respondent's "set-up" activities are sufficient to mandate compliance with
the Act's safety regulations requiring safe access. Therefore, Citation No.
371767 was properly issued for respondent's failure to provide a working
platform, and is affirmed.
4) Citation No. 371768 - No fly-wheel guard.
Citation No. 371768 was issued during the same inspection when Hall
observed an unguarded fly-wheel on the crusher. While the crusher had two
fly-wheels, one was guarded by location; the one on the operator-side of the
crusher was not. The standard allegedly violated by such a condition, 30
C.F.R. § 56.14-1, provides:
Mandatory.

Gears; sprockets; chains; drive, head, tail
and takeup pulleys; flywheels; couplings, sbafts;
sawblades; fan inlets; and similar exposed moving
machine parts which may be contacted by persons, and
which may cause injury to persons, shall be guarded.

Hall testified that the dangerous condition created by the unguarded
flywheel at respondent's facility was the possibility of a person falling
into or getting clothing caught in the flywheel and hence being drawn into
the machinery (Tr. 14).
While the respondent does not deny that the flywheel was unguarded at
the time of the inspection, it again challenges the citation on grounds
related to plant "set-up." First, respondent claims·that the crusher machine
had a flywheel guard, but that it had been removed to make necessary
adjustments. Such adjustments require insertion of a tachometer between the
flywheel and a shaft on the flywheel to measure running speed which is
affected by the hardness of the rock being crushed (Tr. 20). Visual checks
on the action of the flywheel, when the crusher is loaded and operating, are
also claimed to be necessary (Tr. 21).
Similar violations of safety standard 56.14-1, committed during set-up
operations, have been discussed in previous cases. Administrative Law Judge

1199

Fauver ruled that no "testing" exception to requirements of guarding moving
machine parts is expressly included or implied in standard 56.14-1. Union
Rock and Materials Corp., 2 FMSHRC 645 (March 1980)(ALJ). In Erie Blacktop,
Inc., 3 FMSHRC 135 (January 198l)(ALJ), Judge Kout~as found that a
respondent's defense that a plant was not yet at full production, when a
citation was issued for an unguarded flywheel on a crusher, does not excuse
the operator's failure to guard exposed and moving machine parts. In
contrast, a conveyor belt that has been shut down and locked out for repairs
has-no need for guards. The Standard Slag Co., 2 FMSHRC 3312 (November 1980)
(ALJ).
Therefore, I find that the danger to the crusher operator's safety
during respondent's "set-up" activities was sufficient to justify the
issuance of a citation for failure to guard a flywheel. As was suggested by
Hall, tests on the moving flywheel could still have been conducted if a hole
had been drilled in the guard cover, allowing insertion of a tachometer and
limited observation. Accordingly, I affirm Citation No. 371768.
PENALTIES
Since violations have been established, the next issue is the proper
amount of civil penalties to be assessed for such violations. Section llO(i)
of the Act-sets forth six criteria to be considered in determining the amount
of the civil penalty:
In assessing civil monetary penalties, the Commission shall
consider the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of
the operator charged, whether the operator was negligent, the
effect on the operator's ab·ility to continue in business, the
gravity of the violation, and the demonstrated good faith of
the person charged in attempting to achieve rapid compliance
after notification of a violation.
The Secretary's proposed civil penalties for each of respondent
violations are as follows:
Citation No.
371765
371766
371767
371768

Standard Violation
56.15-2
56.15-4
56.11-1
56.14-1
Total

Amount
$ 40.00
40.00
38.00
66.00
$184.00

As stipulated by the parties, respondent's mine had no history of
previous violations, and would be considered a small business. No argument
was advanced by the respondent that payment of a reasonable penaly would
impair its ability to continue in business. Therefore, I presume that no
such adverse effect will be suffered through the payment of penalties I
assess in this case.

1200

/

Respondent's failure to enforce head and eye protection requirements,
provide safe access to machinery, and use flywheel guards, where such
practices are ~andated by the Act's safety regulations, constitutes
negligence. Negligence is defined in the Act's regulations (30 C.F.R.
§_/l00.3 [d]) as "committed or omitted conduct which falls below a standard of
care established by law to protect persons against the risk of harm."
The standard of care established under the Act requires a mine operator
"to be on the alert for conditions and hazards in the mine which affect the
health or. safety of the employees and to take the steps necessary to correct
or prevent such conditions or practices." 30 C.F.R. § 100.3(d). Under the
facts of this case~ the operator failed to exercise reasonable care in
preventing or correcting the practices and conditions (creating safety
regulation violations) which were known or should have been known to exist,
and constitutes ordinary negligence. See 30 C.F.R. § 100.3(d)(2).
In determining the gravity of the violations, consideration must include
the following: 1) probability of injury; 2) gravity of potential injury;
and 3) the number of workers exP.osed to such potential injury. 30 C.F.R.
§ 100.3.
In the present case, while potential injuries could have been
serious or even fatal, the probability of such injury is moderate. In considering the gravity of the violations, I have recognized that the facility
was still at a "set-up" stage, with machinery being operated for test
purposes and that only one worker was exposed to the risks.cited in these
four citations. Therefore, ~ consider the gravity to be less than originally
assessed by the representative of the Secretary.
Upon notification of the violations, respondent abated all four
violations within one day. Such prompt ab'atement demonstrated the good faith
of respondent in attempting to achieve rapid compliance despite a belief that
operations had not yet reached a point where compliance was necessary or
practical.
Based upon the stipulations entered into by the parties, the evidence of
record, and the criteria for assessing civil penalties as set forth in the
Act, I conclude that the civil penalties for each violation should be reduced
and assessed as follows:
Citation No.

371765
371766
371767
371768
Total

Reduced Penalty
$20.00
20.00
20.00
20.00
$80.00

1201

ORDER
WHEREFORF: IT IS ORDERED that citations Nos. 371165, 371766, 371767 and
371768 are affirmed and respondent shall pay the above-assessed penalties
totaling $80.00 within 30 days of the date of this decision,

ifvail

virgi 1
Administrative Law Judge
Distribution:
Marshall P. Salzman, Esq.
Office of the Solicitor
United States Department of Labor
11071 Federal Building, Box 36017
450 Golden Gate Avenue
San Francisco, California 94102
Mr, Quinto Polidori
Mohave Concrete & Materials, Co., Inc.
4502 Highway 95N
Lake Havasu City, Arizona 86403

1202

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

22041

JUN 30 1~
DISCRIMINATION PROCEEDING

BRADLEY ABNER,
Complainant

v.

Docket No. WEST 83-54-DM

ANAMAX MINING COMPANY,
Respondent

MSHA.£~se

No. MD 83-06

Anamax Mine
DECISION
Appearances:

Bradley Abner, Tucson, Arizona, .E.EE._ ~;
Charles L. Fine, Esq., O'Connor, Cavanagh, Anderson,
Westover, Killingsworth & Beshears, Phoenix, Arizona,
for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
Complainant contends that he was discharged from the position
he had with Respondent as a maintenance mechanic, because of activities protected under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 ~ ~·, ("the Act").
Respondent filed a motion to
dismiss on the ground that the complaint was not timely filed and
~id not state a cause of action under section 105(c) of the Act.
The motion was denied by order issued March 24, 1983.

'

Pursuant to notice the case was called for hearing in Tucson,
Arizona, on June 7, 1983.
Bradley Abner testified on his own
behalf.
Ben Dcirris and Linda Trice testified on behalf of
Respondent.
At the conclusion of the hearing, each party was given
the opportunity to argue his position on the record.
Based on the
enti~e record and considering the contentions of the parties, I
make the following decision:
FINDINGS OF FACT
Complainant began working for Respondent in June, 1979.
He
was hired as a maintenance mechanic.
Although he had previously
worked as a welder, a maintenance welder and a mechanic, his job
at Anamax was the first job he had in the mining industry.

1203

While employed at Respondent's mine, Complainant at various
times worked repairing pumps, repairing cyclones, rebuilding
precipitators, and maintaining machinery in the crusher plant.
During 1979, Complainant worked in the tailings pond under a
foreman whose name he cannot recall.
Beginning in 1980 and until
June, 1982, he worked under foreman John Murphy.
In September,
1981, however; he was detailed to foreman Ben Dorris for about
6 weeks, to help rebuild a precipitator.
Subsequently, on another
occasion he worked under Dorr~s rebuildini another precipitator.
From June 21, 1982 until he was discharged effective October 7,
1982, he again worked under Ben Dorris.
In December, 1980, at a time when Complainant was working
under John Murphy, an employee was killed by a crane.
Although
Complainant did not witness the accident because he was not working
that day, he was interviewed by an MSHA investigator concerning the
accident.
In Complainant's opinion, the crane was unsafe because
of the absence of a "limit switch" to stop the hook from going all
the way up.
Complainant does not recall whether he talked to his
foreman about the absence of a limit switch.
He did, however, tell
the MSHA investigator ''about how the limit switches d~dn't work. and
all that."
(Tr. 15).
About 2 weeks later, Complainant was given
a "safety letter" by Murphy because he was not wearing ear plugs.
Subsequently, after Murphy found him in a supply room waiting to
get a welding rod, Complainant was given a verbal warning for not
doing his job.
A few weeks after the crane fatality, an employee was injured
by a ram on the crusher machine.
Complainant witnessed the injury
but did not say anything about it to mgna~ement.
Dorris was aware of the fatal injury in December 1980 involving the crane, and knew that ~omplainant was involved in the MSHA
investigation.
Dorris was not involved in the matter, however, and
~oes not krtow what Complainant told MSHA.
In approximately August, 1982, Complainant witnessed an
incident in which cran~ operator Lindanar was instructed by his
supervisor to raise the crane with the dust bowl attached and it
caught under the crusher mantel.
Complainant hollered to the
foreman to have the crane lowered.
Lindanar was suspended for
3 days, but after Complainant told the Labor Relations Department
what he saw, the suspension was lifted and Lindanar was paid for
his lost time.
Dorris considered Complainant an average worker.
Prior to
September, 1982, Complainant was never disciplined by Dorris.
Company records, however, show that Complainant received a warning
because of an unexcused absence from work on February 4, 1982.
Complain~nt received a letter of commendation for a particular job
in March, 1982.

1204

On September 13, 1982, Complainant told Dorr~s that he had
just learned that his sister-in-law died and inquired about his
entitlement to "funeral leave." Dorris informed him that he was
not entitled to paid leave time under the contract.
On
September 14, Complainant told Dorris that he had changed his
mind and was not going to the funeral.
Dorris later rechecked the
contract provision and determined that an employee was in fact
entitled to funeral leave for attending the funeral of a sisterin-law, and he so informed Compla{nant.
Complainant worked
September 15, 1982, but was off September 16 and 17; his niece
called in and said he was attending a funeral.
When Complainant
returned to work on Monday, September 20, Dorris asked him for
verification that he had attended the funeral.
On October 5, 1982, Complainant submitted a letter dated
September 16, 1982, from the Eaton Funeral Home in Franklin, Ohio.
The letter requested that Complainarit be excused for worked because
he attended the funeral of Bernice Gabbard on September 16, 1982.
_The typed date of the funeral had apparently been altered in ink
from September 15 to September 16.
The words "RELATIONSHIP:
sister-in-law" were typed in, apparently with a different typewriter .
.Dorris was stispicious of the letter and called the company Labor
Relations Department.
Linda Trice, Respondent's Labor Relations Administrator,
called the funeral home and learned that the funeral had taken
place on September 15, 1982, and the words. "RELATIONSHIP:
sister-in-law" were not placed on the letter by the funeral home.
Trice prepared a series of questions for Dorris to ask Complainant.
Complainant maintained that he had attended the funeral of his
sister-in-law in Ohio.
Complainant was suspended October 7, 1982,
pending final determination on disciplinary action, for falsifying
iecords.
Pursuant to the collective bargaining agreement between
Respondent and the labor unions representing the employees, a
hearing was held on October 8, 1982.
The hearing was chaired by
Linda Trice and was attended by Complainant, Ben Dorris and union
representatives.
Following the hearing, Respondent decided to
discharge Complainant.
The decision was made by Williams, Bodde
and Trice of the Labor Relations Department and communicated to
Complainant by Ben Dorris.
The Labor Relations Department is
ordinarily not involved in safety matters .. Trice was unaware of
Complainant's participation in the MSHA investigation referred to
earlier herein.
The union did not file a grievance on Complainant's
discharge.
At the hearing herein, Complainant stated that he did
not attend the funeral and that the deceased was his wife's aunt.
He admitted that the letter from the funeral home was altered at
his direction.

1205

On two prior instances employees were discharged by Respondent
for falsifying records submitted to the company.
ISSUE
Whether the evidence establishes that Complainant's discharge
was related to any activity protected under the Mine Safety Act.
CONCLUSIONS OF LAW
The burden of proof is on the Complainant to establish that
he was engaged in activity protected under. the Act, and that the
adverse action 'here, the discharge) was motivated at least in
part by the protected activity.
Secretary/Pasula v. Consolidation
Coal Company, 2 FMSHRC 2786 (1980), rev'd on other grounds, 663
F.2d 1211 (3rd Cir. 1981); Secretary/Robinette v. United Castle
Coal Co., 3 FMSHRC 803 (1981).
It is clear that Complainant's participation in the MSHA
investigation of the fatal crane accident in December, 1980, was
activity protected under the Mine Act.
However, the long time
interval between this activity and the adverse action itself
argues against a relationship between the two.
There is no positive evidence of such a relationship.
It~might be inferred that
the action of foreman Murphy about 2 weeks following the MSHA
investigation - the safety letter and the verbal warning--were
caused by irritation over Complainant's involvement in the investigation.
But such an inference could not be made that the discharge
of Complainant almost 2 years later was related to that investigation.
Complainant expressed his belief that there was such a
relationship, but has not offered any evidence to support it.
There
is no evidence, direct or indirect, that the discharge of Complainant
~as in any way related to the injury to the employee involving the
crusher ram or to the incident involving the crane operator who was
suspended.
The stated reason for the adverse action - Complainant's
alleged submitting of false documents to obtain funer?l leave
pay - is entirely unrelated to matters of health or safety.
It is
not part of my responsibility to consider whether the penalty was
warranted or was too harsh.
In any event, it was not safety related.
Furthermore, it is clear that the persons who made the decision to
discharge Complainant were entirely unaware of the activity he relies
on here so there could not have been a relationship between the protected activity and the discharge.
I conclude that Complainant's
discharge did not result from activity protected under the Act.

1206

ORDER
Based upon the above findings of fact and conclusions of
law, the above proceeding is DISMISSED.

IJ

tvi14-b5 M

J

v~ck-1~.e£

1

James A. Broderick
Administrative Law Judge

Distribution:
Mr. Bradley Abner, 6760 So. Calle Gaviian, Tucson, AZ 85706
(Certified Mail)
Charles L. Fine, Esq., O'Connor, Cavanagh, Anderson, Westover,
Killingsworth & Beshears, 3003 N. Central Avenue, Suite 1800,
Phoenix, AZ 85012 (Certified Mail)

1207
/fb

'!'U.S. GOVERNMENT PRINTING OFFICE : 1983 0-381-569/5281