September 1983
Commission Decisions
9-29-83
9-29-83
9-29-83

UMWA v. Secretary of Labor, MSHA
MSHA on behalf of Johnny Chacon v.
Phelps Dodge Corporation
MSHA on behalf of Bruce E. Pratt v.
River Hurricane Coal Co., Inc.

LAKE 82-70-R
WEST 79-349-DM

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KENT 81-88-D

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WEST 80-6-M
WEST 82-200-R
WEVA 82-300-D
DENV 79-97-PM
PENN 82-321
PENN 82-336
WEVA 82-219-R
WEVA 82-307
PENN 82-337
LAKE 83-36
WEVA 82-360-D
KENT 83-201
KENT 83-139
PENN 83-43
KENT 81-136
WEST 82-105-D
WEST 82-117-M
WEST 83-79-M
WEST 83-93
WEST 83-111-M
WEST 82-31-M
KENT 83-38-D

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WEST 82-1-M

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Administrative Law Decisions
9-02-83
9-02-83
9-06-83
9-12-83
9-12-83
9-13-83
9-13-83
9-14-83
9-16-83
9-19-83
9-19-83
9-20-83
9-21-83
9-22-83
9-26-83
9-26-83
9-26-83
9-28-83
9-28-83
9-28-83
9-29-83
9-30-83
9-30-83

Calvin Black Enterprises
Emery Mining Corporation
Kenneth Wiggins v. Eastern Assoc. Coal
Southern Clay, Inc.
U.S. Steel Mining Co., Inc.
U.S. Steel Mining Co., Inc.
U.S. Steel Mining Co., Inc.
Elk River Sewell Coal Co., Inc.
U.S. Steel Mining Co., Inc.
Youghiogheny & Ohio Coal Co.
Ralph Yates v. Cedar Coal Company
Bear Creek Mining Comuany
Ralph Ball, Inc.
United States Steel Mining Co., Inc.
United States Steel Corporation
Patricia Swensen v. Emery Mining Corp.
Plateau Resources Limited
Asphalt Mining & Concrete Co.
Palmer Coking Coal Co.
Ross Island Sand & Gravel Co.
Kennecott Minerals Company
MSHA on behalf of Shelby Epers0n v.
Jolene, Inc.
American Mine Services, Inc.

Commission Decisions

SEPTEMBER
The following cases were Directed for Review during the month of September:
Secretary of Labor, MSHA v. U.S. Steel Mining Co., Inc., Docket No. PENN 82-335.
(Judge Broderick, July 27, 1983)
Russell Collins & Virgil Kelley v. Secretary of Labor, MSHA, Docket No.
EAJ 83-1. (Judge K~nnedy, July 27, 1983)
Secretary of Labor, MSHA v. Calvin Black Enterprises, Docket Nos. WEST 80-6-M,
WEST 80-81-M, WEST 80-82-M. (Judge Vail, August 16, 1983)
Review was Denied in the following case during the month of September:
Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No. PENN 82-221-R,
PENN 82-259. (Judge Steffey, July 28, 1983)

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

September 29, 1983
UNITED MINE WORKERS OF AMERICA

v.
Docket No. LAKE 82-70-R
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
DECISION
This case arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V 1981). The issue presented is whether the United Mine Workers of America ("UMWA"), as
a representative of the miners, has statutory authority under section
105(d) of the Mine Act, 30 U.S.C. § 815(d), to contest the Secretary of
Labor's vacation of a section 104(d)(l) withdrawal order issued to the
operator. 30 U.S.C. § 814(d)(l). For the reasons below, we hold that
under section 105(d) miners and their representatives do not have such
a statutory right.
The facts of the case are as follows. On March 15, 1982, a Department of Labor, Mine Safety and Health Administration ("MSHA") inspector
issued an order of withdrawal under section 104(d)(l) of the Mine Act to
the Saginaw Mining Company. The withdrawal order was terminated on the
following day by a second MSHA inspector. On March 19, 1982, a third
MSHA inspector (identified as an "Inspector Supervisor") vacated the
section 104(d)(l) o,rder on the ground that it had been erroneously issued.
On April 9, 1982, the UMWA (District 6), proceeding as the representative of the miners, filed a notice of contest with this independent Commission under section 105(d) challenging the Secretary's action of yacating
the withdrawal order. The UMWA requested that the Commission reinstate the
order. The Secretary, in turn, filed a motion to dismiss the UMWA's notice
of contest on the ground that the UMWA did not have authority under the Mine
Act to challenge the Secretary's action of vacating the withdrawal order. 1_/

On May 21, 1982, the Chief Administrative Law Judge issued an order
dismissing the UMWA's notice of contest. 4 FMSHRC 921 (May 1982)(ALJ). The
judge concluded that the UMWA does not have a statutory right under the Mine
Act to contest the vacation of the withdrawal order. We agree.
1/
The Saginaw Mining Company did not contest any of the Secretary's
actions nor did it intervene in this case.

83-9-11

1 r:-1a
:..J .l. a

Section -105(d) of the Act sets forth the various rights that operators
and miners have with respect to initiating Commission review of Secretarial
enforcement actions. It provides, in part:
If, within 30 days of receipt thereof, an operator of
a coal or other mine notifies the Secretary that he
intends to contest the issuance or modification of
an order issued under section 104, or citation or a
notification of proposed assessment of a penalty
issued ~nder subsection (a) or (b) of this section,
or the reasonableness of the length of abatement time
fixed in a citation or modification thereof issued
under section 104, or any miner or representative of
miners notifies the Secretary of an intention to
contest the issuance, modification, or termination
of any order issued under section 104', or the reasonableness of the length of time set for abatement by
a citation or modification thereof issued under
section 104, the Secretary shall immediately advise
the Commission of such notification and the Commission shall afford an opportunity for a hearing ••••
30 U.S.C. § 815(d)(emphasis added).
Section 105(d) is clear and unambiguous in setting forth the extent
to which miners and their representatives may initiate challenges to the
Secretary's enforcement of the Mine Act. UMWA v. Secretary, 5 FMSHRC 807
(CENT 81-223-R, May 11, 1983), pet. for review filed, No. 83-1519, D.C.
Cir., May 13, 1983 ("UMWA v. Secretary I"). ];/ Concerning withdrawal
orders, section 105(d) grants miners the right to contest the "issuance,
modification, or termination" of any order issued under section 104. It
does not, however, grant miners the right to contest the Secretary's
action of "vacating" a section 104 withdrawal order.
We find the omission of the term "vacating" in section 105(d) to be
fatal to the UMWA's claim that it has the statutory right to initiate the
present proceeding. The "vacation" of a citation or withdrawal order is a
term of art under the Mine Act and Congress was fully aware of its discrete
meaning. For example, in section 104(h) of the Act Congress provided that
~ "[a]ny citation or order issued under this section shall remain in effect
until modified, terminated or vacated by the Secretary, ••• or modified,
2/
We stated in UMWA v. Secretary I that the language of section 105(d)
was unambiguous in holding that miners do not have the statutory authority
under the Mine Act to initiate review of citations issued by the Secretary
through the filing of a notice of contest. We also noted that our finding
section 105(d) to be ambiguous in Energy Fuels Corp., l FMSHRC 299 (May 1979)
was inapposite to the question of miners' rights to contest under section
105(d), because our holding in Energy Fuels Corp. was directed to the
unrelated question of whether an operator may contest a citation prior to the
Secretary's proposing a penalty. 5 FMSHRC at 811, n.5.

terminated_££ vacated by the Commission or the courts •••• " 30 U.S.C.
§ 814(h)(emphasis added). 3/ Furthermore, the latter portion of section
lOS(d) itself provides that "the Commission shall afford an opportunity
for a hearing ••• and thereafter shall issue an order ••• affirming,
modifying, _££vacating the Secretary's citation, order or proposed
penalty •••• " 30 U.S.C. § 815(d)(emphasis added). Therefore, if Congress
intended for miners to have the right to contest the Secretary's action
of vacating a section 104 withdrawal order, that right would have been
specifically provided for in section 105(d). In the face of Congress'
evident recognition of the distinctions between the issuance, modification,
termination and vacation of citations and orders, and its failure to
provide a right to contest the vacation of an order, we do not have the
prerogative to provide such a right. See UMWA v. Secretary I, 5 FMSHRC
at 515. !!_/
We emphasize that the failure of Congress to provide for the right
asserted here does not leave affected miners without a remedy in the
situation presented. Under section 103(g)(l) of the Act miners can
request an immediate inspection by MSHA if they have reasonable grounds
to believe that a violation of the Act or a standard or an imminent
danger exists. A "special inspection" is thereafter required "as soon
as possible to determine if such violation or danger exists •••• " 30 U.S.C.
§ 813(g)(l).
If upon reinspection the inspector determines that no
violation exists, miners may seek further Secretarial review of that
determination. 30 C.F.R. Part 43. See also, 30 U.S.C. § 813(g)(2).

3/
In light of the language of section 104(h) distinguishing between
the issuance and the vacation of citations and orders, we reject the
assertion that the vacation order should be contestable under section
105(d) because it is also "issued." This approach would render Congress'
use of the terms "modification," "termination" and "vacation" surplusage
and would ignore the commonly understood discrete meanings of the terms.
4/
We note that neither party has cited any legislative history directly
bearing on the asserted right, nor have we disco~ered any.

1

.t".'')1·
0~

Accordingly, we hold that under section 105(d) of the 1977 Mine Act
miners and their representatives do not have statutory authority to contest
the Secretary's action of vacating a section 104(d)(l) withdrawal order. 5/
The judge's order dismissing the UMWA's notice of contest in this case is-;
therefore, affirmed.

1/

The present case involves the interpretation of section 105(d) of the
1977 Mine Act. The decision in Eastern Associated Coal Corp., 4 IBMA 298
(1975), addressed the Board of Mine Operations Appeals' interpretation of
section 105(a)(l) of the 1969 Coal Act. The sections are not identical and
the rights created by each are, quite simply, different. Therefore, the
dissent's extensive reliance on the Board's decision in Eastern is misplaced.
Furthermore, Eastern directly concerned the continued viability of an
operator's challenge to a withdrawal order that subsequently had been
vacated by the Secretary. The essential holding in Eastern was that
under the 1969 Act the Secretary could not extinguish rights to review
of an underlying order by the expedient of vacating the order. Eastern
did not present any challenge to the vacation order itself and, therefore,
the Board's comments as to the reviewability of vacation orders under the
1969 Act was dicta. Nor is any issue presented as to the reviewability
of a unilateral attempt by the Secretary to vacate a citation or order
after a proper notice of contest triggering Commission jurisdiction is
filed. See, e.g., Climax Molybdenum Co., 2 FMSHRC 2748 (October 1980),
aff'd, No. 80-2187, 10th Cir., March 21, 1983; Kocher Coal Co., 4 FMSHRC
2123 (December 1982).

·Commissioner Lawson dissenting:
The reasoning of the majority in this case substantially parallels
that of its opinion in UMWA v. Secretary, 5 FMSHR9 807 (May 11, 1983),
pet. for review filed, No. 83-1519, D.C. Cir., May 13, 1983). I dissent
here also, for reasons similar to those expressed by me in that case.
As the majority has conceded, the miner or his or her representative
can contest "the issuance, modification, or termination of any order issued
under section 104.". Slip op. at 2. It does not follow that, under section
104(h) of the Act, which authorizes the Secretary, the Commission or the
courts to modify, terminate or vacate a citation or order, that Congress
must have intended to distinguish between "vacation" and "termination" of
an order.
It is unquestioned that an adversely affected miner can initiate
review of the vacation of any order by the Commission in the Court of
Appeals. 1._/ Since those Commission orders are subject to review, Congress
could hardly have intended to provide insulation from review for the
Secretary from his vacation of orders, nor does the language of the
statute preclude such challenge.
Miners are affected no differently by a "terminated" or a "vacated"
withdrawal order--the protection mandated by the Act vanishes with the
issuance of such an order. In this case, the UMWA asserts that the
Secretary's inspector(s) improperly conducted this mine roof inspection.
Roof falls in underground mines are and have been the leading cause of
mine deaths for many years. !:_/ The majority would nevertheless deny
review of vacated, but not terminated orders. For purposes of review,
and more importantly, protection of the miner, I find no definitional
distinction between termination and vacation of an order. Indeed, as
the Board of Mine Operations Appeals held in Eastern Associated Coal Corp.,
4 IBMA 298, 304 (1975):
Insofar as the right of review is concerned, vacating
an order has no more implication than the termination
of an order. For review purposes, a vacated order is
a terminated order. Id at 306.
\

1_/ "Any person adversely affected or aggrieved by an order of the 'commission
issued under this Act may obtain a review of such order in any United States
Court of Appeals ••• " 30 U.S.C.A. 816(a).
!:./ Indeed,· fatalities as the result of roof falls between January 1 to
June 4, 1982 had dramatically increased; twenty-nine miners died during
that period, compared with nine deaths in 1981, and twelve deaths in 1980
for the same time period. Daily Fatality Report, U. S. Dept. of Labor,
MSHA, June 4, 1982 and June 4, 1980.

152J

An example makes clear that the majority's view fails to conform to
either the language or the purpose of the Act. Under the Act a miner
can rely upon the protection of a withdrawal or other protective order
for thirty days, with no need to seek review thereof during that period.
However, the reversal of Eastern (supra), will now permit the Secretary
to vacate an order on the thirty-first day, and thus extinguish the right
of the miner to seek review of the order. The Secretary's BMOA in Eastern,
however, recognized the problem presented and protected this review for
both the miner and the operator:
Section 105(a) of the Act grants both the operator and
representative of the miners the right to seek review
of any order or its modification or termination, issued
pursuant to section 104. We hold that this right of
review must be safeguarded and cannot be frustrated by
unilateral action of MESA. In the instant case vacation
of the Order, as defined by MESA, would deprive both the
operator and the representative of miners of any opportunity to seek Secretarial review of the validity of a
section 104 withdrawal order as and when issued or the
validity of a subsequent order modifying or terminating
such Order. We cannot be unmindful of the consequences
which flow from the issuance of an order of withdrawal
under section 104 of the Act, particularly as seen in the
provisions of sections 104(c) and 110 of the Act, as well as
the immediate loss of production to the operator, whether or
not issuance of the order was improvident. We believe such
action and any subsequent action by MESA with respect to that
order, be it modification, termination, or vacation, is
reviewable pursuant to section 105 of the Act, if such review
is timely sought by the operator or representative of the
miners. We do not hold that MESA has no authority to vacate
an order, for in many instances this may be the most
expeditious method of accomplishing a desired result and it
may in many instances be the preferable remedy for the operator.
What we do hold is that MESA by "vacating" an order may not
thereby deny an operator or representative of miners the right
of review of the basic order or any subsequent orders.
That a mistaken or improper vacation of a withdrawal order could be
fatal or crippling to a miner is so evident as to need no embellishment.
It is noteworthy that three different mine inspectors were involved in
this case in issuing, terminating, and finally vacating the withdrawal
order now under consideration. The suggestion that foreclosing review
of "vacated" orders "does not leave affected miners without a remedy"
(slip op. at 3) derives from sections 103(g)(l) & (2) of the Act. These
statutory sections, unfortunately, merely provide for after-the-fact
"informal" review by the Secretary of his own actions, with no appeal
therefrom. This obviously fails to provide a meaningful, much less
independent, adjudicatory hearing, since the Secretary will be reviewing
his own decision, and reversal thereof is not realistically to be anticipated. Section 103(g)(l) & (g)(2). This internal administrative review

by the Secretary (apparently largely unutilized), thus fails to provide
the due process so evidently required by the law and the balance of the
Act. As this Commission noted in Sec. ex rel. Gooslin v. Kentucky Carbon,
3 FMSHRC 1707, 1712 (July 1981), in providing an operator with review and
a hearing under section 105(c)(2) as a matter of due process, even though
the statute was silent as to any right therefor:
Due process contemplates fundamental fairness. As the
Supreme Court stated in Boddie v. Connecticut, 401 U.S.
371 (1971):
What the Constitution does require is 'an opportunity ...
granted at a meaningful time and in a meaningful manner,'
••• 'for [a] hearing appropriate to the nature of the
case,' ••• [401 U.S. at 378; Court's emphasis; citations
omitted.]
See also, e.g., Armstrong v. Manzo, 380 U.S. 545, 552 (1965);
Goldberg v. Kelly, 397 U.S. 254, 267 (1970).
Perhaps of even more importance, the majority's acceptance of the
Secretary's views in this case permits him to frustrate the miners'
challenges to section 104 withdrawal orders simply by vacating these-or any other--orders rather than terminating or even modifying such,
thus evading any challenge by the miners' under section 105(d). It can
hardly be maintained that modification of an order, which obviously results
in at least some remaining protection for the miner, is more review worthy
than vacating of the order. That is nevertheless the consequence of the
position adopted by the majority today.
Nor would allowing miners' representative to contest the vacation of a
section 104(d)(l) order undermine the Secretary's prosecutorial discretion,
since 105(d) already allows miners to challenge other Secretarial enforcement
actions, (e.g., the "issuance, modification or termination" of section 104
withdrawal orders; see also section 107(e)(l)). Furthermore, the logical
corollary to the miner's right to contest the issuance of a section 104
order, is the right to contest the vacating of that order. Perhaps the
miners' representative in this case should have labeled its notice of
April 9th as a contest of the termination of the challenged order, given
the semantic analysis of the majority. Indeed, that is the reality of the
situation presented. For, as stated in the dissent to UMWA v. Secretary I,
(supra):
The adversary system is, in my view, entitled to at least
the same measure of respect as reliance on "prosecutorial
discretion" and indeed presents preferable possibilities
for the parties to challenge either abusive enforcement
or lack of enforcement. For that reason, too, permitting
the miner or miner's representative to fully participate
and litigate issues such as those presented in this case
appears to be far more in accord with the purpose and
intent of the Act, certainly as reflec~ed in the legislative
history, than the denial to the most affected parties, the
miners, of the right to review Secretarial action or inaction
even if limited to an abuse of discretion. Miners, too, must
be assured that the Secretary is in compliance with the Act.

The Secretary here maintains that he erred in issuing the challenged
withdrawal order, but that his order recognizing that "error" is beyond
review. The vacation objected to by the petitioner herein was accomplished
by the issuance of the Secretary's order of March 19, 1982, pursuant to
the authority of section 104(h) of the Act. And, as is undisputed, a
miner's representative can contest the issuance of any order issued under
section 104. This construction is clearly supported by the language of
the statute; indeed, neither the majority nor the Secretary contend to
the contrary, and is further confirmed by the issuance of that vacating
order on MSHA Form 7000-3a, designating the action taken as an "order. 11
This withdrawal order was issued on March 15th, terminated on March
16th and vacated on March 19th. The miners' notice of contest was filed
on April 9th--timely as to the issuance, termination and vacation of the
involved order under section 105(d). This Commission should therefore
construe this notice of contest so "as to do substantial justice",
allowing that contest notice as a challenge to the termination of the
withdrawal order. l_/
Finally, since section 105(d) does not preclude a miner's contest of
a vacation of an order, interpreting that section as providing that for
review purposes a_ vacated order is a terminated order would be consistent
with the remedial and participatory enforcement pattern of the Mine Act,
which encourages miners to participate in safety and health matters. !!._/
I would, therefore, for the reasons expressed both herein and in my
dissent in UMWA v. Secretary I, reverse the decision below and remand for
consideration on the merits of the issues presented by the Secretary's
vacation of this withdrawal order.

A. E. Lawson, Commissioner

]_/

Rule 8(f) of the Federal Rules of Civil Procedure provides:
CONSTRUCTION OF PLEADINGS. All Pleadings shall be so
construed as to do substantial'justice.
See the Commission's Rules of Procedure 29 C.F.R. 2700.1.

!!_I There is substantial precedent construing the 1969 Act·--a fortiori applicable
to the 1977 Act--which holds that between two possible interpretations of the
Act, the one that promotes safety must be preferred. See District 6, UMWA v.
IBMA, 562 F.2d 1260, 1265 (D.C. Cir. 1977). Accord, UMWA v. Klep_E£., 532 F.2d
1403, 1406 (D.C. Cir. (1976), cert. denied, 429 U.S. 858 (1976); Munsey v.
Morton, 507 F.2d 735 (D.C. Cir-:-1978); Phillips v. IBMA, 500 F.2d 772. 782
(D.C. Cir. 1974), cert. denied, 420 U.S. 938 (1975)~t follows that the
interpretation of section 105(d) that best promotes safety is one that permits
miner participation.

152b

Distribution
Michael A. McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Thomas M. Myers, Esq.
United Mine Workers of America
District 6
56000 Dilles Bottom
Shadyside, Ohio 43947
Mr. R.A. Thomas, Secretary
Saginaw Mining Co.
1200 Hanna Building
Cleveland, Ohio 44115
Mr. John J. Kirn, Asst. Sec.
Saginaw Mining Company
1100 Superior Avenue
Cleveland, Ohio 44114
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W.
Washington, D.C. 20006

1527

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

September 29, 1983

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JOHNNY N. CHACON

v.

Docket No. WEST 79-349-DM

PHELPS DODGE CORPORATION
ORDER
In Raymond J. Donovan, Secretary of Labor, on behalf of Johnny N.
Chacon v. Phelps Dodge Corporation, No. 81-2300, D.C. Cir., June 7,
1983, the Court reversed the Commission's decision and remanded this
discrimination case to the Commission for disposition consistent with
the Court's decision. On September 15, 1983, we received from the Court
the certified copy of its opinion and judgment.
Pursuant to the Court's judgment and order, the decision of the
administrative law judge is hereby reinstated, including his order of
expungement, award of back pay and interest, and his civil penalty
assessment. Compliance shall be within 30 days of the issuance of this
order.

~~

L. Clair Nelson, Commissioner

83-9-12

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

20006

.

September 29, 1983
SECRETARY OF LABOR,
HINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
On behalf of BRUCE EDWARD PRATT
Docket No. KENT 81-88-D

v.

RIVER HURRICANE COAL COMPANY, INC.
DECISION
The Secretary of Labor filed a complaint of discrimination on behalf
of Bruce Pratt with this independent Commission under section lOS(c) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(Supp. V
1981). An administrative law judge of the Commission held that River
Hurricane Coal Company violated the Mine Act when it discharged Pratt.
3 FMSHRC 2366 (October 198l)(ALJ). We subsequently granted the operator's
petition for discretionary review and heard oral argument. As modified
by our decision, we affirm the judge's finding of a violation.
River Hurricane operates an underground coal mine at Kimper, Kentucky,
at which Bruce Pratt was employed from August 1979 to August 1980. On
August 19, 1980, Pratt was the third shift mechanic and electrician.
Pratt was not a certified electrician while at River Hurricane, but he took
classes from William Harris, the mine's training and safety director. At
approximately 11:00 p.m. on August 19, 1980, Butch Thacker, a scoop operator,
came to Pratt and informed him that the scoop was on fire. Power to operate
the scoop is provided by 2 trays of lead-acid batteries enclosed in a case
that measures approximately 4"feet by 6 feet. The batteries are covered by
a lid, which is bolted down but has louvers at the top of the casing to allow
air to circulate.
The fire occurred on the mine surface at the beginning of the third
shift, when Thacker was in the process of substituting discharged scoop
batteries for charged ones, and recharging the batteries used by the
previous shift. 1/ He had connected the scoop to freshly charged batteries
and had the fresh batteries on the scoop jacks. Thacker was in the process
1/
The scoop is equipped with hydraulic jacks that raise the batteries
onto a two-pronged stand, where they can be charged. With jumper cables,
the scoop can then be connected to charged batteries, which are loaded onto
the scoop while the dead batteries are being recharged. Thacker testified
that he and miner Larry Parks, who did not testify, had removed the dead
batteries from the scoop, placing them on the stand for recharging.

'1528

83-9-13

of connecting the discharged batteries to the charger when Parks informed
him that the batteries connected to the scoop were on fire. Thacker threw
the circuit breaker on the scoop and went to get Pratt, who was at the
supply house.
Pratt approached the batteries, and when he came within approximately
35 feet of them, he saw flames coming from under the lid of the battery
case. He then turned back to the supply house. Pratt also prevented from
approaching the fire a miner who came out of the supply room with a fire
extinguisher. Pratt testified that he feared the battery would explode and
believed any attempt to extinguish the fire would be futile unless the lid
to the battery case were unbolted and removed. Pratt had seen the results
of the explosion of a car battery at his previous place of employment and
feared this battery would explode and would throw shrapnel and acid over him.
He thought an explosion would have killed him. Pratt said there was nothing
available in the area to neutralize acid.
After the fire went out, Pratt took the lid off the battery casing and
examined the batteries. He determined that the batteries themselves had not
been on fire and concluded that hydrogen gas had been burning. Pratt stated
that the "cat heads," or electrical connectors to the batteries, were not
damaged but that the insulation on wires connected to the cat heads was
damaged. Thacker exchanged the batteries involved in the fire for freshly
charged batteries and informed the shift boss, E. C. Slone, of the fire.
Thacker and Pratt went into the mine and completed the working shift.
Another employee of River Hurricane, Goody Deskins, testified that he
helped James Slone, the chief electrician, repair the batteries. The
receptacles were replaced, as well as part of the cable to them. Insulation
had burned off one of the cables, but there was no evidence of a fire on top
of the battery cells themselves. James Slone also testified that the fire
was in the cables (or leads) and that the "leads and the female connector"
were replaced.
When the shift was over the next morning, August 20, James Slone
discussed the fire with Pratt. E.C. Slone (no relation to James Slone),
the third shift foreman to whom Thacker reported the fire, was present
during the conversation. This conversation is critical to the case and
the persons present testified consistently on its content. James Slone
asked Pratt why he had not attempted to put out the fire. Pratt explained
that the batteries had just been charged and he was afraid they might
explode. James Slone tried to tell Pratt how to put out such a fire,
generally stating that he would have made some attempt to cut the bolts
on the lid and use a fire extinguisher or rock dust. James Slone asked
Pratt what he would do if such a fire happened again, and Pratt indicated
he would respond in the same manner. James Slone then stated that if
Pratt would make no attempt to extinguish such fires, then he had no use
for Pratt, and the conversation ended. Pratt was discharged.
An· expert on batteries, E. R. Eddins, testified at the hearing as to
the dangers of fires such as the fire on August 19, and the preferred methods
of extinguishing such fires. Eddins testified that because there is nothing
combustible in the cable or receptacle, very hot temperatures are required
before cables will burn or melt. He stated the odds against such an

1 ,,... t...>
':' \)
n

......... ...J

occurrence are high. Eddins further testified that hydrogen, an explosive
gas, is formed by charging and discharging batteries. Hydrogen explodes on
the first spark that contacts it; generally it does not burn. After the
initial explosion, if any, the hydrogen is gone and there can be no more
explosions. If an explosion occurs, according to Eddins, the main danger
is from acid splashing. He testified that with the concentrations of acid
found in batteries some eye damage--not perrnanent--might result from acid
splash, and splashed cotton clothing would "dissipate" when first washed.
He further testified that, if the lid were on the batteries when hydrogen
exploded, nothing would happen because the explosion would be contained
under the lid. He characterized the hazards from lead acid batteries as
"minimal." He also stated that explosions could be prevented by washing
the ha tteries.
Eddins further stated that the witnesses appearing prior to him at the
hearing, Pratt and James Slone, were "not totally up to date" on the problems
in handling battery fires. He asserted that the best means of extinguishing
such a fire is to throw an entire 50-pound bag of rock dust on the fire. He
stated rock dust is better than a fire extinguisher because it smothers
the fire, but an extinguisher could be used in order to get close enough
to throw rock dust.
Dan Grace, an expert on fire suppression systems, also testified that
a spark or fire will set off hydrogen gas immediately. He stated that the
danger from such an explosion is greater where the gas has no place to go,
as in a well-enclosed 12-24 volt automotive battery. He stated the trays
in the scoop were intentionally not well-sealed, and allowed air movement.
Mine Safety and Health Administration Inspector Lycans testified that
with cables arcing, and a battery short-circuiting, he "just can't see
approaching it." He recommended letting the fire burn itself out, and
explained that batteries are flame resistent and probably won't be ruined.
Lycans further stated that he would object if he saw someone run up to a
battery fire to put it out with an extinguisher, unless the person remained
10 to 15 feet away. He said he would consider opening the battery lid
foolish, and serious enough for the issuance of an imminent danger withdrawal order. Lycans agreed with the expert witnesses that hydrogen explodes
on the first spark and stated that if there are flames between the top of
the battery and the underside of the battery tray lid, it is a "safe
assumption" that there is not sufficient hydrogen for an explosion.
The record is replete with references to similar fires and battery
problems at River Hurricane. Deskins reported he had stopped "arcing"
.:ind a "frying sound" before a fire started on a similar battery two or
three weeks before the hearing. Thacker testified concerning two
fires on scoops which extinguished themselves, and estimated that in
the year before the hearing he had seen five fires, including the one
in question and three in the face area. Vinton Adkins stated that in
his 12 or 13 years as a miner, he had seen 30 or 40 fires like the one
that occurred in August 1980 and had experience with fires "a couple or
three times" after the one on August 19. Finally, Raleigh Hunt testified
that he put out a fire 2 or 3 weeks before the fire on August 19, 1980.

1531

Adkins, E.C. Slone, and Thacker, as well as Pratt, testified they had
not been trained, prior to August 19, 1980, on how to extinguish battery
fires. Thacker testified he was later taught to use the scoop's fire
suppression system, to cover the fire with rock dust, or to use a fire
extinguisher. The expert on the scoop's fire suppression system, Dan
Grace, testified that the fire suppression system does not cover the
battery trays.
The Commiss.ion judge found two instances of protected activity: Pratt's
refusal to fight the fire on the evening of August 19 and his refusal the
next morning to agree to attempt to extinguish future fires under similar
circumstances.
3 FMSHRC at 2369 (Findings 21, 25). He found that Pratt
had a reasonable, good faith fear as to his saf~ty justifying his first
refusal, and that his reasonable fears were not allayed by thg _o_perator' s
explanation to him as to how to proceed in the future. In particular~ he
found that Slone's explanation to Pratt the morning after the fire lacked
factual and technical understanding of the hazards involved. Thus, he
determined that River Hurricane discharged Pratt for activity protected
by the Mine Act. Based on the parties' stipulations, the judge awarded
Pratt $3,348.00 in back pay. He also awarded interest and assessed a
penalty against the operator for the violation of the Act. 3 FMSHRC at
2370. No issues are raised on review concerning the amount of the award
to Pratt or the penalty. J:j

2/
We note that the judge issued a bench decision at the hearing on
October 8, 1981, followed by his almost identical written decision on
October 19, 1981. In his written decision, the judge stated, "Any deviations in verbiage [between the bench and written decisions] are due to the
unavailability of the transcript and extemporaneous interpolations that are
not reflected in retained notes." 3 FMSHRC at 2366 n.l. The judge's statement shows that he failed to comply with Commission Rule 65(a), which states
in part:
If a decision is announced orally from the bench, it
shall be reduced to writing after the filing of the
transcript.
29 C.F.R. § 2700.65(a)(emphasis added). Issuing decisions before a transcript is available can hinder the parties in attempting to file a satisfactory petition for discretionary review. Section 113(d)(2)(A)(iii) of
the Mine Act requires that issues raised in petitions for review "shall
be supported by detailed citations to the record when assignments of error
are based on the record •••• " This is not possible if the 30-day statutory
period for filing a petition for review expires before the transcript is
available.
In this case, however, the transcript was available November 2, more
than 2 weeks before the petition for review was due, and counsel for
River Hurricane cited to it in his petition. Further, the operator did
not object to the judge's premature issuance of his decision. Accordingly,
although we disapprove the judge's issuance of a decision prior to the
filing of the transcript, we find his error in this case to be harmless.

We address preliminarily two of River Hurricane's arguments. First,
River Hurricane argues that any standard used to assess the legitimacy of
a miner's work refusal must be an objective one supported by ascertainable
evidence. Previously we have discussed the nature of the proof necessary
to support a miner's perception of a danger. In Secretary on behalf of
Robinette v. United Castle Coal Company, 3 FMSHRC 803, 809-12 (April 1981),
and Haro v. Magma Copper Co., 4 FMSHRC 1935, 1944 (November 1982), we
"rejected a requirement that miners who have refused to work must objectively
prove that hazards existed •••• Rather, we adopted 'a simple requirement
that the miner's honest perception be a reasonable one under the
circumstances.'" Haro, 4 FMSHRC at 1843-44, quoting Robinette, 3 FMSHRC at
812. For the reasons stated in those decisions, we reject the operator's
arguments for a more stringent standard in this case.
Second, the operator asserts that the Commission should articulate a
standard as to how severe a hazard must be in order to trigger a miner's
right to refuse to work, citing Consolidation Coal Co. v. Marshall,
663 F.2d 1211, 1226 (3d Cir. 1981) (Sloviter, J., dissenting). We have
declined to articulate such a standard in the past and we decline again
to do so here. We continue to believe that, insofar as this adjudicatory
Commission is concerned, gradual development of the law in the cases
contested before us is the appropriate vehicle for molding this important
right. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786, 2793-94 (October 1980), rev'd on other grounds sub nom. Consolidation
Coal Co. v. Marshall, supra; Robinette, at 809 n.12, 816.---We now turn
to the central issue in this case.
River Hurricane does not contend that the judge erred in finding that
Pratt's refusal to fight the battery fire on August 19, 1980 was protected
activity. The focus of this case, therefore, is not on the actual fire, but
on the conversation the next morning, and the nature of Pratt's refusal
during that conversation to fight fires in the future.
The right to refuse to work has as a predicate a miner's good faith,
reasonable belief in a hazardous condition. Pasula, supra; Robinette, supra.
A good faith belief "simply means honest belief that a hazard exists."
Robinette, at 810. This requirement's purpose is to "remove from the Act's
protection work refusals involving frauds or other forms of deception." Id.
The judge found that Pratt refused "to agree to attempt to extinguish a fire
in or around lead acid batteries under circumstances similar to those that
occurred on August 19" and that the refusal "was made in a good faith,
reasonable belief that a serious risk of injury from an exploding battery
existed." 3 FMSHRC at 2369 (Finding 25). The judge's description of
Pratt's refusal is supported by substantial evidence. River Hurricane
does not suggest that fraud or deception motivated Pratt. Rather, River
Hurricane urges that the judge erred in finding Pratt's refusal reasonable
both because the hazard was not serious enough to warrant a work refusal,
and because Pratt continued to refuse to work after James Slone attempted
to explain what should be done.
The perception of a hazard is viewed from the miner's perspective.
Robinette, supra. Haro, 4 FMSHRC at 1943-44; Secretary on behalf of
Bush v. Union Carbide Corp., 5 FMSHRC 993, 997-98 (June 1983). Pratt

1530

had reason to believe the battery could explode because he had seen the
results of the explosion of a car battery. Pratt feared an explosion of
the scoop batteries would throw shrapnel and acid over him and might
kill him. The hazard Pratt feared was severe enough to warrant his work
refusal. Thus, the judge's finding that Pratt reasonably believed in a
serious risk of injury from an exploding battery is supported by substantial evidence. 3 FMSHRC at 2369 (Finding 25). Once a reasonable
good faith fear in a hazard is expressed by a miner, the operator has an
obligation to address the perceived danger.
See Bush, 5 FMSHRC at 998.
In this case the operator's explanation or attempt to address
Pratt's fears did not include specific information or support as to why
fighting the battery fires may not have been as dangerous as Pratt
believed. Rather, the record amply supports the judge's conclusion that
James Sloan's "explanation and instructions to Mr. Pratt ••• concerning
how to cope with fires on battery trays was lacking in technical and
factual understanding of the hazards and failed to allay Mr. Pratt's
reasonable fears." 3 FMSHRC at 2269 (Finding 24). 3/ Slone did not
know that an explosion was unlikely or that if an explosion did occur it
would probably be contained within the battery casing. This technical
information was only developed at the hearing. Slone did not present
such information to Pratt. Rather, he simply attempted to tell Pratt
how he thought Pratt should proceed to put out such a fire. Further,
Slone's testimony as to his instructions was sorely lacking in detail
and not entirely consistent with the safe practices testified to by
Eddins at the hearing. Thus, we conclude that the judge's finding that
Slone did not provide a response sufficient to allay the reasonable
fears expressed by Pratt is supported by substantial evidence. !±_/

1./

We agree with the judge's characterization of Slone's "instructions".
At the hearing Slone testified as follows:
I tried to--1 asked him why he didn't make some
attempt to extinguish the fire. I asked him
didn't, you lmow--or I tried to explain to him
what he could do, you know, that he could--we
have got bolt cutters and we have got fire
extinguishers, anything, you know, to make an
attempt to extinguish a fire, instead of, you
know, letting the company loss--or damage the
company property and so forth. Several different
things he could have done.
Mr. Pratt told me that he had no intention of
fighting any fire in such a manner as that, or-and I told him I would have no further use for
anybody like that in his position.

Tr. 171.
4/
River Hurricane also asserts that in the crucial conversation of
August 20, Pratt not only refused to fight such fires, but also refused "to
undertake schooling and training with regard to combating and extinguishing
such electrical fires." The operator asserts that even if Pratt engaged
(Footnote continued)
·1·
1 ,-·q
~0"

In sum, we find that substantial evidence of record supports the
judge's findings that Pratt had a good faith, reasonable belief that
fighting the battery fire at issue was hazardous, that the operator
failed to address adequately Pratt's reasonable fears of the perceived
hazard, and that the operator violated section 105(c) of the Mine Act
by discharging Pratt for his refusal to perform a task still reasonably
believed by him to be dangerous. 2_/
Finally, although we affirm the judge's· finding as to the protected
work refusal and illegal discharge, we find it necessary to strike two
portions of the judge's decision as not supported by the record. First,
in Finding 18 the judge stated that Slone's discharge of Pratt was
"largely an overreaction to Mr. Pratt's provocative rejoinder and the
long simmering personality conflict between the two men." We can find
no record support for this characterization of the cause of the discharge and reject it as unsupported speculation. Second, in paragraph
4 of his enforcement order the judge ordered the operator to "cease
and desist from any retaliation or other disciplinary action against
miners who refuse to comply with the company policy that requires
miners to assume the risk of injury in order to suppress electric fires
that pose no hazard other than to equipment." 3 FMSHRC at 2370. Based
on our review of the record, we conclude that the requisite support for
this finding concerning an asserted company "policy" is lacking and that
the cease and desist order is therefore unwarranted. Accordingly, we
strike Finding 18 and paragraph 4 of the enforcement order in the
judge's decision.

fn. !!_/ continued
in protected activities, he was legally discharged for the unprotected
activity of refusing to accept training. The operator's characterization
of the pivotal conversation as including an offer and refusal of
"schooling and training," in "combating" electrical fires is wide of
the mark. Slone's vague instructions described above did not
constitute such an offer and, therefore, the refusal alluded to did
not occur.
1_./
We emphasize that the fire that occurred was an equipment fire on
the surface that posed no threat to the safety and health of other
miners if allowed to run its course. We also emphasize that we
believe the judge found, and the evidence supports, that Pratt's
prospective refusal to fight fires was directed at similar fires in
similar circumstances, i.e., surface fires posing no danger to other
miners.

1535

As modified by this decision, the judge's decision is affirmed.

A. E.

Lawson~ Commissioner

~

L. Clair Nelson, Commissioner

r··q

.

l ·.J utJ

Distribution
Garred 0. Cline, Esq.
Farley Building
Pikeville, Kentucky 41501
Marcus P. McGraw, Esq.
Greenbaum, Doll & McDonald
1400 Vine Center Tower
P.O. Box 1808
Lexington. Kentucky 40592
Ann Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Joseph Kennedy
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

153i

Administrative Law Judge Decisions

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},
Petitioner

SEP 2 1983

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 80-6-M
A/C No. 42-00784-05001
Docket No. WEST 80-81-M
A/C No. 42-00550-05001 R
Docket No. WEST 80-82-M
A/C No. 42-00784-05002 R

v.
CALVIN BLACK ENTERPRISES,
Respondent

Blue Lizard and Markey Mines

CORRECTION TO DECISION
ISSUED AUGUST 16, 1983
On page 8, under paragraph titled "ORDER", the citation No. "336697"
appearing in line 2 is corrected to read "336696."

~1v::a;Z
Administrative Law Judge
Distribution:
James H. Barkley, Esq., (Certified Mail} Office of the Solicitor
United States Department of Labor, 1585 Federal Building
1961 Stout Street, Denver, Colqrado 80294
Mr. Calvin Black, President, (Certified Mail}
Calvin Black Enterprises, P.O. Box 906, Blanding~ Utah

153J

84511

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

SEP 2
EMERY MINING CORPORATION,
Contestant

v.

um

CONTEST PROCEEDING
Docket No. WEST 82-200-R
Order. No. 2073785; 8/13/82

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

Little Dove Mine

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-18
A.C. No. 42-01393-03504

v.
Little Dove Mine
EMERY MINING CORPORATION,
Respondent
DECISION AND ORDER
Before:

Judge Broderick

On July 25, 1983, I issued an order consolidating the above
proceedings.
I also denied Emery's motion for summary decision
and granted the cross motion of the Secretary for limited summary
decision.
I retained jurisdiction to determine whether the violation was significant and substantial, and to assess a civil
penalty.
I directed the parties to attempt to stipulate the facts
necessary for me to make such determinations.
On August 29, 1983, the parties filed a stipulation of facts
with a computer printout of Emery's history of previous violations.
Based on the stipulation of facts , I conclude that Respondent
is a large operator (its annual production is approximately
4 million tons).
Its history of previous violations is not such
that a penalty otherwise appropriate should be increased because
of it.

The stipulation states that on August 12, 1982, during the
4:00 p.m. to 12:00 midnight shift coal was being produced and the
crew unknowingly came within approximately 1 foot of breaking
through to the abandoned workings of an adjacent mine. On the
next shift, a maintenance shift, a breakthrough occurred either
because of natural forces or as a result of the cleanup operations.
The breakthrough was approximately 10 to 12 inches and it released
a quantity of carbon dioxide gas into the working section. This
was discovered on the preshift examination prior to the 8:00 a.m.
shift on August 13, 1981. No miners were injured or killed as a
result of the breakthrough.
I have previously concluded that.the facts do not show that
the violation was the result of Emery's unwarrantable failure or
negligence.
I further conclude that the evidence does not show
thai the violation was of such nature as could significantly and
substantially contribute to the cause and effect of a coal mine
safety or health hazard.
I further conclude, however, that the
violation was moderately serious, since it could have resulted
(though it was unlikely to have resulted) in injuries to miners.
Based upon the above findings and conclusions, I conclude that
an appropriate penalty for the violation is $75.00.
ORDER
Therefore, IT IS ORDERED that Emery Mining Company within
30 days of the date of this decision pay the sum of $75 as a civil
penalty for the violation found in my order of July 25, 1983, and,
subject to such payment, the civil penalty proceeding is DISMISSED.
IT IS FURTHER ORDERED that in the notice of contest proceeding,
the citation is AFFIRMED and the proceeding is DISMISSED.

j 04tuX k(jvctbv'7 ek._

James A. Broderick
Administrative Law Judge

Distribution:
Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut
Avenue, N.W., Washington, DC 20036 (Certified Mail)
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)

/fb

1541

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

KENNETH A. WIGGINS
Complainant

SEP 6 1918

DISCRIMINATION PROCEEDING
Docket No: WEVA 82-300-D
HOPE CD 82-32

v.
Keystone No. 1 Mine
EASTERN ASSOCIATED COAL CORP,
Respondent
DECISION ON THE MERITS
Appearances:

William B. Talty, Esq., Talty and Carroll,
112 Central Avenue, Tazewell, Virginia
for
the Claimant
Mark C. Russell, Esq., Jackson, Kelly, Holt
& O'Farrell, P.O.B. 553, Charleston, West
Virginia for the Respondent

Before:

Judge Moore

On April 9, 1982, Kenneth A. Wiggins, an underground
supervisor, was discharged by Eastern Associated Coal Corporation.
According to Mr. Fraley, the superintendent, Wiggins was
discharged because he lied about the progress his crew had
made toward abatement of a citation that ha.d been issued for
coal accumulations along a beltline. Mr. Fraley also thought
that Mr. Wiggins had lied about an earlier incident which
will be discussed later.
Jacky Jackson may well have been a key witness in this
case, had he been called. He was the assistant general mine
foreman.
He was directly under Mr. Fraley in the chain of
cor:1I1land and he is the one with whom Mr. Wiggins had most of
his problems.
It was he who allegedly made statements to
Mr. Wiggins that were critical of Mr. Wiggins because of
activities which Mr. Wiggins took on behalf of safety.
Lying about the condition of a mine is not a protected
activity and if that is the reason for the discharge of Mr.
Wiggins he can not prevail.
If, however,
the "lying incident"
was a trumped up charge and Mr. Wiggins was in fact fired
for his earlier safety concerns then he has a legitimate
case.

Respondents exhibit 5 contains excerpts from respondents
discharge and discipline procedures.
Insofar as salaried
employees are concerned, for the first offense there should
be a verbal reprimand and warning.
For the second offense
there should be a written warning in the presence of a
witness and a written warning is to be signed by both the
employee and the witness.
The third offense can result in
"discharge if the situation warrants." This procedure is
known as the "progressive disciplinary steps".
Some offenses
are considered so serious that the progressive disciplinary
steps are bypassed.
A list of the offenses which would require immediate
discharge appears on Page 66 of the manual, but on the
preceeding page and also on Page 72 it is stated that the
offenses which could result in immediate suspension are not
limited to the 8 listed on page 66.
Lying is net one of
the reasons listed on page 66. Respondent argues that the
words "not limited to" means there are other offenses which
would justify immediate suspension.
But if respondent can
add any offense it desires to the list then there is no
point in having the list in the first place.
I find that
respondent did not follow its published discharge procedures
in firing Mr. Wiggins, but regardless of whether lying is
sufficiently serious to justify an immediate discharge,
failure to follow the published procedures is not an act of
discrimination.
On March 26, 1982 Mr. Wiggins was working a shift that
began at 3 P.M. and ended at 11 P.M. It was a production
shift, meaning that he was expected to produce coal during
that shift.
According to Mr. Wiggins, and the testimony was
undisputed, the belt broke about 9 P.M. and there was a
large accumulation of spilled coal along the No. 1 belt.
Because he knew that he would have to be gone for a considerable time repairing the belt, he made his ventilation checks
at the faces (required every 2 hours) and found that all
faces had insufficient air.
Before he took half of his crew
with him to repair th~ belt he instructed the roof bolters
to repair the check curtain and t9 check the ventilation to
make sure it was sufficient in the faces. They were then
given some other assignments to do before beginning roof
bolting.
It took until almost the end of the shift for Mr.
Wiggins and half of his crew to repair the belt, and shovel
the coal on to it. And when he got back to the face area he
checked all the faces and found good roof and sufficient
air: He then left the mine and filled out the form describing
the accomplishments made during this shift.
(Exhibit B.) !f
1/ Complainants exhibits are marked with letters and
respondents exhibits are marked with numbers.

When he next saw Jacky Jackson and was questioned about why
he bolted only 1-1/2 places he explained the problems
including the lack of ventilation and Jacky Jackson said
"you're never to shut a roof drill down on a continuous mine
section; that mine is usually waiting on the roof drill."
(Tr. 83). As a result of the incident Mr. Wiggins received a
notice of improper action (complainant's exhibit C) which
complained because he "shut bolter down at 9 P.M." This is
one of the incidents that Mr. Fraley 3aid he thought that
Mr. Wiggins was lying about.
There were 8 men underground
with Mr. Wiggins that night, and none were called to testify,
nor was there any explanation as to why they could not be
reached by subpoena.
Jacky Jackson could have denied that he
made the above-quoted statement, but as stated earlier he
was not subpoenad either.
According to Mr. Fraley, Mr.
Jackson had been his number one assistant but whe~ Jackson
decided to leave, Fraley did not ask why he was leaving or
where he was going.
Respondents exhibit 3 is the "daily and on-shift report
mine foreman or assistant". Among other things it shows the
times when methane examinations were made in the faces of
the 5 entries involved, as well as the methane content
discovered.
The exhibit shows no methane found but checks
made at regular intervals, and it is obvious that if Mr.
Wiggins had made the methane checks in the faces at the
exact times indicated on the exhibit, Mr. Wiggins' statements
concerning his activity on that shift could not be true.
His testimony is that the times are approximate and that's
the way all foremen fill out their on-shift reports. Mr.
Larry, who makes up the State's mine foremen examinations
and administers the test testified that the exact time
should be used on the forms represented by respondent's
exhibit 3.
Two other witnesses, however, testified that at
this mine all foremen used approximate times and all entries
were in regular intervals such as is shown on Mr. Wiggins'
report. With the work that a foreman has to do it would be
impossible to examine the No. 1 room at exactly 4:05, examine
it again at exactly at 6:05, again at exactly at 8:05 and
again at exactly 10:05. The same sequence is shown for all
5 rooms or faces. And all of these reports have to be approved
by the mine foreman or mine manager.
Respondents exhibit 3
may indicate a violation of a safety standard but it does
not destroy Mr. Wiggins' credibility. I find that Mr. Wiggins
failure to live up to expectations insofar as roof bolting
was concerned, was caused by his concerns for safety and
that the notice of improper action issued because of this
protected activity was an act of unlawful discrimination.

r' A

.·

1 ·._) i ·1

About 3 weeks prior to the above incident Mr. Wiggins
had a discussion with Jacky Jackson concerning the safety of
certain stoppings that had been constructed. The stoppings
had been leaking and cinder blocks had been falling out. At
one point a stopping collapsed and fell on the portobus that
Mr. Wiggins' crew was in. The stoppings were made by piling
cinderblock on top of each other with no cement or mortar in
the joints. He later told Jacky Jackson that he had better
rebuild the stopping in accordance with the law (substantial
construction) and Jackson just looked at him and said nothing.
The stopping was rebuilt the same way it had been constructed
in the first place. While this incident illustrates a
disagreement between Mr. Wiggins and management concerning
matters of safety it does not in itself constitute an act of
unlawful discrimination. After the incident involving the
broken belt and lack of ventilation, Mr. Wiggins was transferred
to the third shift which is a non-production shift. During
the week of his discharge he was told to go to a certain
section and bolt as many places as he could, service the
equipment and supply the section so it would be ready for
the day shift (a production shift) . When he got to the area
in question he found two mechanics working on the cable reel
of the roof bolter, (sometimes referred to as the roof
drill). The reel had ''burned up" on an earlier shift so
that it was no longer working. Mr. Wiggins explained that by
"burned up'' he did not mean that the cable burned but that
the inner workings that drive the reel so that it automatically
takes up cable when the drill ia backing, had burned up.
The roof bolter had been used by an earlier shift by bypassing
the cable reel and attaching the cable through the sides of
the connector case. "It is not permissible and if they
happened to be operating that machine and ran into an accumulation
of methane, it could easily be ignited." (Tr. 102).
Mr. Wiggins was unwilling to have his men operate the
drill in that condition. The cable leads were there, and in
his opinion there was an electrical shock hazard.
Mr. Wiggins and his crew did other maintenance work
while the roof bolter was being repaired. It took about half
the shift to repair the roof bolter and after that Mr.
Wiggins and his crew bolted until quitting time. When he
got on the surface Mr. Jackson questioned him about the fact
that he had not finished the bolting he was supposed to do.
Mr. Wiggins explained the condition of the roof bolter. Mr.
Jackson's response was to shake his head and turn away and
leave. While he did not specifically so state, Mr. Wiggins
apparently interpreted this as a rejection of his explanation.
On the last shift that Mr. Wiggins worked for respondent
before being discharged, Mr. Wiggins was told to take four
men to a certain area of the mine and clean the area. A

1545

citation had been issued by a federal mine inspector for
accumulations of coal and dust, and the company had been
given until 7 A.M. to abate the violation.
It is unclear
when the citation was actually issued or, which shift, or
foreman was responsible for the condition that had developed
in the designated area. When Mr. Wiggins and his crew saw
the area there was no doubt in their minds as to why the
citation had been issued.
It was a clear violation of the
clean-up regulations.
Before the end of their shift Mr. Wiggins and his crew
had loaded 3-1/2 cars of coal and debris.
In order to get
the men out of the mine by 8:00 A.M. it was necessary to
leave the section at 7:00 A.M. And at 6:00 A.M. or 6:05 A.M.
Mr. Wiggins informed Mr. Jackson by phone that he would not
be able to get the place ready. Mr. Harris, the shift
foreman, had also informed Mr. Jackson at around 6:00 A.M.
that the place would not be ready by the end of the shift.
Mr. Dunavant overheard the 6:00 A.M. call from Mr. Wiggins
to Mr. Jackson and said that Mr. Jackson did not ask Mr.
Wiggins to stay over after the shift was over. Mr. Dunavant
listened on the phone as he was required to do until at
least 6:45 A.M. and he at no time heard Mr. Wiggins tell Mr.
Jackson that the place was ready. Mr. Harris claims that
at 6:25.A.M. he was listening on the phone and heard Mr.
Wiggins say that the place was ready. Mr. Harris got confused
about the difference between saying a place was ready, and
it would be ready, and I am not sure which he meant.
According to Mr. Fraley at 6:15 A.M. Mr. Jackson told him,
Mr. Fraley, that the place would not be ready but also said
that Mr. Wiggins told Jackson that the place was ready at
6:35 A.M. At 7:15 A.M. while he was on his way out of the
mine, Mr. Wiggins again told Mr. Jackson that the place was
not ready, that it needed spot-cleaning and rockdusting.
I
accept this testimony since no one bothered to call Mr.
Jackson to refute it. And it does not make sense to me that
any foreman, having a good record for working overtime and
unexcused absences as Mr. Wiggins has would lie about the
condition of the place when he knew the next foreman would
be there within the hour, and when he could reasonably
expect a federal mine inspector to be there within a short
time. Mr. Wiggins was requested to seek to get the miners to
work overtime into the next shift but Mr. Wiggins was unsuccessful
in attempting to get them to stay.
I also find that he was not asked to stay over even if
the miners refused. I also find that Mr. Harris was confused
about a telephone call between Mr. Wiggins and Mr. Jackson
at 6:25 A.M. He either overheard the 6 or 6:05 call, or the
7:15 call, and if he heard the 7:15 call he was mistaken
about whether Mr. Wiggins said the place was ready, would
be ready, or would not be ready. When Jackson asked Harris if
the place was ready Harris replied "it's readv, Kenny said
it's ready". But Mr. Harris was just repeating what he
thought he heard Wiggins say to Jackson.

Mr. Harris contradicted himself numerous times during
cross-examination; for example, his discussion of respondents
exhibit V begins on page 378 of the transcript. 2/. Not only
is the testimony contradictory but exhibit v itself which was
handwritten by Mr. Harris, contains the following contradictory
statement: "Jacky called back into mine and Kenny '3aid belt
would not be ready, and he told Kenny to stay over and work until
dayshift got there. And Kenny said the belt would be ready."
I find with respect to the events that occurred on the
morning of April 8, 1982, that the version of those events
as described by Kenneth Wiggins, Fred Powers and Ronny
Dunavant is the more reliable. I find that Mr. Wiggins did
not report that the belt was ready for inspection.
I further
find that he and his crew did their best to clean the belt
in time, and that the firing was totally unjustified.
Mr. Fraley was the one who made the decision to discharge
Mr. Wiggins. Mr. Jackson had recommended a suspension. But
Mr. Fraley decided that a discharge was proper. He was
told, and I find that he believed, that Wiggins had lied
about the condition of the belt. He thought Mr. Wiggins had
lied about the ventilation problem of March 26, 1982 which
resulted in Mr. Wiggins receiving a "notice of improper
action" (plaintiff's exhibit C), and he was unaware, until
the trial, of the other 2 events involving some improperly
constructed stoppings and the cable reel of the roof bolter.
While I have found that Mr. Wiggins was not lying, I also
find that Mr. Fraley thought he was.
Although I believe Mr. Fraley's testimony, that he
thought that Mr. Wiggins was lying and that he had no knowledge
of the other safety related incidents, knowledge of those
incidents is imputed to the company by reason of the fact
that a foreman was aware of those events. A foreman is a
part of "management" and if a company could escape liability
by denying that it knew of a foreman's activities, the Act
would not work.
Mr. Fraley of course, was acting for the
company when he discharged Mr. Wiggins and though he made
the decision personally, it was nevertheless a company
decision.
Inasmuch as the notice of improper action issued
on March 27, 1982 was in itself an act of illegal discrimi.nation,
and inasmuch as that notice, and the events that brought it
about, were in part responsible for Mr. Wiggins' discharge,
then under the Pasula test Mr. Wiggins established a prima
facie case and it then became the burden of Eastern Associated
Coal Corporation to show that it would have discharged Mr.
Wiggins in any event, even if the events of March 26 and 27,
1982 had not occurred. The company has made no attempt to
~/The

transcript refers to plaintiff's exhibit B. The
transcript is replete with such errors. And it is the
worst transcript that I have been involved with.

carry this burden and consequently Wiggins must prevail.
All proposed findings inconsistent with the above are
REJECTED.
PENDING A FINAL ORDER
The Complainant shall have 15 days from the date of this
decision to submit a proposed order granting relief for the
violation found above.
Respondent shall have 15 days from

receipt of the Secretary's prop~e~~~ ~.
Charles c. Moore, Jr.,
Administrative Law Judge
Distribution:
William B. Talty, Esq., Talty and Carroll, 112 Central Avenue
Tazewell, Virginia 24651
(Certified Mail)
Mark C. Russell, Esq., Jackson, Kelly, Holt and O'Farrell,
P.O.B. 553, Charleston, West Virginia 25322 (Certified Mail)

/db

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

SEP 12 l!ID

CIVIL PENALTY PROCEEDING

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

Docket Nos.

Assessment Control Nos.

23-01602-05001
DENV 79-97-PM
23-01602-05002
CENT 79-194-M
23-01602-05003
CENT 80-67-M
23-01602-05004
CENT 81-47-M
Southern Clay Pit and Plant
Stoddard County, Missouri

v.
SOUTHERN CLAY, INC.,
Respondent

23-01005-05001
CENT 81-146-M
23-01005-05002
CENT 81-270-M
Southern Clay Plant
Scott County, Missouri
BARB 79-27-PM
40-00204-05001
SE 81-104-M
40-00204-05003
Southern Clay Mine
Henry County, Tennessee

:

11-00494-05001
LAKE 79-170-M
11-00494-05002
LAKE 80-101-M
11-00494-05003
LAKE 80-137-M
11-00494-05004
LAKE 80-138-M
11-00494-05005
LAKE 80-282-M
11-00494-05006
LAKE 81-62-M
11-00494-05007
LAKE 81-83-M
LAKE 81-145-M
11-00494-05008
LAKE 81-172-M
11-00494-05009
LAKE 82-20-M
11-00494-05010
Southern Clay Pit and Mill
Pulaski County, Illinois

DECISION APPROVING SETTLEMENT, AS CORRECTED
Before:

Judge Steffey

Counsel for the Secretary of Labor and Southern Clay, Inc.,
filed on August 19, 1983, in the above-entitled proceeding a
joint motion for approval of settlement. Under the settlement
agreement, respondent would pay reduced penalties totaling
$4,968.90 instead of the total penalties of $5,521.00 proposed
by the Mine Safety and Health Administration.

1548

Discussion of Required Corrections
The settlement amount given in the preceding paragraph is
$398.84 higher than the total of the settlement penalties which
will be obtained by adding the columns of settlement penalties_
shown on pages 2 through 7 of the joint motion for approval of
settlement. The reason that the actual settlement amount is
$398.84 larger than the total amount indicated in the motion is
that there are about ten errors in the tabulations shown on
pages 2 through 7 of the motion.
I considered returning the
joint motion to the parties so that they could correct the errors,
but I found that all of them are either typographical or inadvertent errors of omission.
Therefore, I have corrected the
errors and have no reason to believe that the difference in the
amounts I am approving in this decision will cause any real concern after the parties have had an opportunity to check the corrections which I have made.
I shall first explain the errors which were made in listing
the penalties proposed by MSHA and thereafter I shall explain the
errors resulting from the parties' application of a flat 10-percent reduction in all of the penalties proposed by MSHA.
As indicated in the first paragraph of this decision, if
the total penalties proposed by MSHA in all 18 cases are added,
the result is $5,521.00, whereas the amount which will be obtained by adding the proposed penalties listed on pages 2 through
7 of the motion for approval of settlement is $4,984.00 which is
$537.00 less than the actual proposed penalties.
The difference
of $537.00 between the actual penalties and the listing in the
motion is specifically explained in the following discussion.
On page 2 of the motion, under Docket No. LAKE 80-137-M,
the parties overlooked the need to list Citation No. 366077
dated 8/29/79 citing a violation of section 55.14-6 with an
associated proposed penalty of $72.00. On page 3, the list of
citations supporting the violations alleged in Docket No. LAKE
80-137-M continues.
There are two additional errors under
Docket No. LAKE 80-137-M on page 3. Citation No. 367465 shown
on the first line of page 3 should be changed to Citation No.
366075 and the omitted alleged violation of section 55.12-30
associated with that citation should be inserted in column 3
on page 3. Also on line 2 of page 3, Citation No. 367465 should
be changed to Citation No. 367464. The remaining facts given
with respect to those two citations are correct and .no changes
in the amounts of the proposed penalties are required.
On page 3 of the motion, under Docket No. CENT 79-194-M,
the parties failed to list Citation No. 189111 dated February 13,
1979, alleging a violation of section 55.9-2. The proposed
penalty for the violation associated with that omitted citation
is $66.00.

1550

On page 4 of the motion, under Docket No. LAKE 79-170-M,
the parties failed to list Citation No. 366451 dated April 18,
1979, alleging a violation of section 55.12-32. The penalty
proposed for that alleged violation is $34.00. Also on page 4,
under Docket No. LAKE 82-20-M, the proposed penalty shown in
column 4 for the single violation alleged in that docket is
$60.00, but that penalty should be corrected to show $160.00
in column 4.
•
On page 6 of the motion, the first case listed is Docket
No. CENT 81-146-M. That reference to Docket No. CENT 81-146-M
should be deleted in its entirety because the proposed assessment for that case is already listed in full on page 5 and
should not be repeated on page 6. Also on page 6, under Docket
No. LAKE 80-101-M, the parties overlooked the need to list Order
No. 366088 dated August 29, 1979, alleging a violation of section 55.12-17 with an associated proposed penalty of $305.00.
Addition of the amounts associated with the above-described
errors equals the deficiency of $537.00 referred to in the fourth
paragraph of this decision. A summary of the corrections discussed above is given below:
LAKE 80-137-M (addition of proposed penalty
associated with omission of
Citation No. 366077) ..•••.••..•• $

72.00

CENT 79-194-M (addition of -proposed penalty
associated with omission of
Citation No. 189111 ••• • . .•• . .• .•

66.00

LAKE 79-170-M (addition of proposed penalty
associated with omission of
Citation No. 366451) • . • • • . • • . • • .

34. 00

LAKE 82-20-M (addition of $100 to increase incorrect proposed penalty of $60
to $160 for Citation No. 500519) .

100.00

CENT 81-146-M (reduction of proposed penalty
associated with deletion of
second listing of Docket No.
CENT 81-146-M) •••••••.•••••.....

-40.00

LAKE 80-101-M (addition of proposed penalty
associated with omission of
Order No. 366088) •••.••.•.••.•.•

305.00

Total difference between actual proposed penal ties and incorrect proposed penalties
listed in joint motion •..•••••.••..••.••.... $ 537.00

Since the parties' errors in deriving the total settlement
penalties are different from those which caused the errors in
listing. the total penalties proposed by MSHA, a somewhat different explanation is necessary to account for the difference of
$398.84 between the total settlement amount of $4,968.90 (which
results from taking 90 percent of the corrected proposed penarties of $5,521.00) and the amount of $4,570.06 which results
from adding the settlement penalties listed on pages 2 through
7 of the joint motion for approval of settlement. An explanation
of the errors in listing the settlement penalties is given below:
On page 2 of the motion, under Docket No. LAKE 80-137-M, a
settlement penalty of $64.80 must be added in column 5 to reflect the omission of the proposed penalty of $72.00 associated
with Citation No. 366077.
On page 3 of the motion, under Docket No. CENT 79-194-M, a
settlement penalty of $59.40 must be added in column 5 to reflect the omission of the proposed penalty of $66.00 associated
with Citation No. 189111.
The listing for Docket No. CENT 81-270-M begins on the last
line of page 3. Under that same docket on the first line of
page 4, a settlement penalty of $30.80 is shown in column 5 for
Citation No. 544241 having a proposed penalty of $34.00. That
settlement penalty is 20 cents more than 10 percent of $34.00
and should be reduced to $30.60 to agree with all the other
settlement penalties associated~ith proposed penalties in the
amount of $34.00 which have been correctly reduced by 10 percent
to $30.60.
Also on page 4 of the motion, under Docket No. LAKE 79-170-M,
a settlement penalty in the amount of $30.60 should be added in
column 5 to correspond with the parties' failure to include
Citation No. 366451 in that docket along with an associated proposed penalty of $34.00.
It should additionally be noted on page 4, under Docket No.
LAKE 82-20-M, that it is unnecessary to make an adjustment in
the settlement penalties to reflect the fact that the proposed
penalty for the single violation in that docket was incorrectly
listed as $100.00 less than MSHA had proposed. No adjustment is
necessary because the parties had listed a settlement penalty of
$144.00 which is 10 percent of the corrected proposed penalty of
$160.00.
A somewhat complicated discussion is required for correcting the settlement penalty pertaining to the single violation
alleged in Docket No. CENT 81-146-M. As previously indicated
above, the entire listing for Docket No. CENT 81-146-M appears
first on page 5 and then is repeated on page 6. The first

listing on page 5 incorrectly shows the settlement penalty as
$30.00 in column 5, and that amount should be corrected to reflect a correct settlement penalty of $36.00. Of course, the
repeated listing of Docket No. CENT 81-146-M should be deleted
where it is shown on page 6, but on page 6, the correct settlement penalty of $36.00 is shown in column 5. Nevertheless, to
obtain a correct total for all settlement penalties, only $30.00
should be deducted, when the second listing for Docket No. CENT
81-146-M is deleted, because the first listing for that docket
reflected an incorrect settlement penalty of $30.00 which has
already been changed on page 5 to the correct amount of $36.00.
On page 5 of the motion, under Docket No. LAKE 81-62-M,
the settlement penalty shown for Citation No. 499968 should be
changed from $102.86 to $102.60 because the amount of $102.86 is
not 10 percent of the proposed penalty of $114.00. The aforesaid correction requires that the settlement penalties be reduced
by 26 cents.
On page 4 of the motion, under Docket No. LAKE 80-101-M,
a settlement penalty of $274.50 must be added to reflect insertion of a settlement penalty to correspond with the proposed
penalty of $305.00 associated with omission of Order No. 366088
from that docket.
As indicated above, the corrected total of the proposed
penalties is $5,521.00 so that the total settlement penalties,
or 90 percent of $5,521.00, are-$4,968.90. Also, as explained
above, the motion, when filed, reflected total settlement penalties of $4,570.06. The difference between the motion's incorrect settlement penalties in the amount of $4,570.06 and the
corrected total settlement penalties in the amount of $4,968.90
is achieved by making the following adjustments which have been
explained above:
LAKE 80-137-M (insertion to correspond with
omission of Citation No. 366077) ... $

64.80

CENT 79-194-M (insertion to correspond with
omission of Citation No. 189111) ..•

59.40

CENT 81-270-M (reduction of 20 cents to reflect correction of settlement
penalty for Citation No. 544241) •.•

-.20

LAKE 79-170-M (insertion to correspond with
omission of Citation No. 366451) ••.

30.60

CENT 81-146-M (reduction of $30.00 to reflect
deletion of Docket No. CENT 81146-M which had been listed twice).

-30.00

155J

LAKE 81-62-M (reduction of 26 cents to reflect correction of settlement
penalty for Citation No. 499968) .•.• $

. -.26

LAKE 80-101-M (insertion to correspond with
omission of Order No. 366088} ••.•.•

274.5~

Total Adjustments in Settlement Penalties ••••••• $ 398.84
The ordering paragraphs at the end of this-decision list
all the corrected proposed penalties along with the corrected
settlement penalties. Therefore, if counsel 1/ for the parties
become confused by the explanation of the corrections as they
have been given above, they will be able to compare the listing
of the proposed penalties and settlement penalties set forth on
pages 2 through 7 of the joint motion with the tabulations at
the end of this decision and find all of the corrections which
have been explained above.
Discussion of the Six Criteria
Hearings in this consolidated proceeding were scheduled and
then continued several times because counsel for the parties believed that the Federal Mine Safety and Health Act of 1977 was
going to be amended by Congress so as to transfer inspection of
respondent's mining operations from the jurisdiction of the Mine
Safety and Health Administration to the jurisdiction of the
Occupational Safety and Health Administration. That anticipated
legislation never was passed by Congress and the parties have
agreed to this settlement subject to respondent's right to contest MSHA's jurisdiction in the future if respondent should
choose to do so.
Section llO(i} of the Act lists six criteria which are required to be used in determining civil penalties. The joint
motion for approval of settlement (pp. 7-8) discusses the six
criteria in very general terms. As to the criterion of whether
the payment of penalties would cause respondent to discontinue
in business, the joint motion states that "[t]he proposed settlement will not deter Southern Clay, Inc.'s ability to continue
in business."
The criterion of the size of respondent's business is not
discussed in specific terms in the joint motion. The 18 proposed assessments in the official files were prepared over a
period of years beginning in 1978 and ending in 1981 and reflect
that respondent's total business involves from 563,807 to
619,548 man hours per year. Therefore, the proposed assessment
1/ None of the attorneys who ultimately signed the joint motion
participated in its original preparation.

sheets assign two penalty points for the size of respondent's
total operations under the penalty formula set forth in 30 C.F.R.
S 100.3 as that formula was constituted prior to its amendment
on May 21, 1982. Respondent has four different sites where mining operations are conducted. The assessment sheets reflect the
man hours for those specific mines to be from a low of 29,964 to
a high of 218,500. All but one of the proposed assessment sheets
have assigned five penalty points pursuant to section 100.3(b).
Therefore, the proposed assessment sheets assign from two to six
points under section 100.3(b) (1) (ii) for the size of respondent's
individual mines under the penalty formula.
Inasmuch as a maximum of 15 points may be assigned solely on the basis of the size
of an operator's business, I find that respondent should be
classified as operating a relatively small business because the
assignment of points under the criterion of size ranges from a
low of 4 points to a high of 8 points.
As to the criterion of respondent's history of previous
violations, the joint motion states that respondent has no significant history of previous violations. The aforesaid statement as to respondent's history of previous violations is correct
for the majority of the violations alleged in this proceeding,
but the 76 violations alleged in all 18 dockets are spread over
a 4-year period. The alleged violations, therefore, range from
the very first inspections made of respondent's mines to those
made in 1981. Consequently, the first proposed assessment
sheets reflect assignment of zero penalty points under the criterion of respondent's history o~ previous violations, but in
some of the most recent cases, such as the proposed assessment
sheets in Docket Nos. LAKE 81-145-M and LAKE 82-20-M, the sheets
reflect assignment of 16 and 15 penalty points, respectively, for
respondent's history of previous violations under section 100.3(c).
Inasmuch as a maximum of 20 penalty points can be assigned under
the criterion of history of previous violations, it is obvious
from MSHA's assignment of up to 16 penalty points under that
criterion, that respondent, by 1981, had at least an average
history of previous violations. Since all of the penalties proposed by MSHA reflect a gradual increase in assignment of penalty points under the criterion of history of previous violations as respondent continued to be cited for additional violations, the proposed penalties all reflect proper consideration
of respondent's history of previous violations.
As to the criterion of whether respondent demonstrated a
good faith effort to achieve rapid compliance after the alleged
violations were cited, the joint motion states that "Southern
Clay, Inc. exercised good faith in abatement of the alleged ·
violations." While the joint motion is correct as to the criterion of good-faith abatement, it understates respondent's
excellent record in abating violations rapidly. Under section
100.3(f) of the formula in effect prior to May 21, 1982, an

1555

operator is assigned zero penalty points if it merely abates a
violation within the time given by an inspector in his citation,
but is assigned negative penalty points if it makes "special
efforts" to abate the violation.
In almost every instance, MSHA
assigned respondent from 2 to 8 negative penalty points under the
criterion of good-faith abatement.
Rarely was respondent assigned
zero penalty points and, in no case, was respondent assigned additional points for failure to abate a violation within the time
given by the inspector. Here, again, of course, all of MSHA's
proposed penalties reflect a reduction of the penalty because of
respondent's having demonstrated "special efforts" in abating the
alleged violations.
With respect to the criterion of negligence, the joint motion
avers that "[t]he above-stated alleged violations were the result
of low to moderate negligence." The parties' statement as to
negligence is overly broad and general.
In Docket No. LAKE 80101-M, for the violation of section 55.12-17 alleged in Order No.
366088, MSHA assigned 25 penalty points under the criterion of
negligence pursuant to section 100.3(d) of the penalty formula.
Section 100.3(d) provides for a maximum of 25 points to be
assigned when there is existence of gross negligence.
The violation involved was the alleged failure of an employee to block
out the principal switch at a time when he was working on a 440volt switch box.
In Docket No. LAKE 81-83-M, a total of 16 penalty points were assigned under the criterion of negligence for
the single violation alleged in that case.
Despite the fact that a few alleged violations were considered to have been associated with more than the "moderate" degree
of negligence referred to in the joint motion, it is a fact that
in the majority of cases, MSHA assigned in the neighborhood of
from 10 to 12 "moderate" penalty points under the criterion of
negligence.
In each case, of course, the Assessment Office specifically considered the criterion of negligence and assigned
an appropriate number of penalty points under that criterion.
Finally, as to the sixth criterion of gravity, the joint
motion states that the "* * * alleged violations were only mildly
serious".
The joint motion understates the seriousness of the
alleged violations because the vast majority of the violations
pertained to failure to erect guards over moving machine parts
or along walkways.
Those were generally assigned at least 7
penalty points under section 100.3(e) of the penalty formula
which means that the inspector thought the accidents which the
standards were designed to prevent would "probably" occur and
that they would result in at least lost work days for one person.
Many of them were given 11 penalty points indicating that the
isnpector thought they would be associated with injuries of a
permanently disabling nature. Of course, some of the violations
were also electrical in nature and those were given penalty

assignments of 14 to 16 under the criterion of gravity.
In
each instance, however, MSHA assigned the number of penalty
points under the criterion of gravity which the conditions described in the inspectors' citations and order seem to require.
In most settlement proceedings, the parties' motions for,
approval of settlement provide detailed facts as to unusual
mitigating circumstances which were apparently not taken into
consideration by MSHA when it derived the penalties which are
being contested.· In this proceeding, the parties have given no
specific reason to justify a 10-percent reduction in all of the
76 penalties involved in this proceeding.
If the proposed reduction were any more than 10 percent, I believe that the settlement would have to be returned for the parties to provide some
specific reason for seeking a 10-percent reduction.
It is a
fact, however, that I have received detailed evidence in some
proceedings pertaining to as many as 98 alleged violations.
It
is generally true that an operator is able to introduce mitigating circumstances in such proceedings so that, in most cases, I
end up assessing slightly lower penalties than MSHA.
I have read the conditions described in all of the citations
and order involved in this proceeding and I believe that in an
evidentiary proceeding I would be inclined to reduce many of
them below the amount proposed by MSHA. For example, many of the
electrical violations pertain to failure to replace a cover on a
switch box or control box. If that box should prove to be in a
remote area which was dry and in~requently used, I would be inclined to assess a lower penalty than has been proposed by MSHA
because I believe the likelihood of a serious injury from such a
violation is remote. Also, in many of the alleged violations
pertaining to failure to guard a walkway or moving machine parts,
the testimony at a hearing generally shows that the openings for
which guarding is being required are somewhat small or are located in an area of infrequent travel by personnel. The mitigating circumstances in such cases usually warrant a reduction of
the penalties to amounts less than those proposed by MSHA.
As I indicated in the first paragraph of this decision, the
total corrected proposed penalties amount to $5,521.00 and respondent has agreed to pay corrected settlement penalties in the
amount of $4,968.90, or a reduction of $552.10.
In my opinion,
if a hearing had been held as to the 76 alleged violations involved in this proceeding, it is more likely than not that I
would have assessed penalties of no more than the settlement
amount agreed upon by the parties. Therefore, I find that the
joint motion for approval of settlement should be granted and
that the corrected settlement agreement should be approved.
WHEREFORE, it is ordered:

155~

(A)
The joint motion for approval of settlement, as corrected in this decision, is granted and the corrected settlement
agree~ent is approved.
(B)
Pursuant to the corrected settlement agreement, respondent, within 30 days from the date of this decision, shall pay
civil penalties totaling $4,968.90 which are allocated to the
respective alleged violations as follows:
Southern Clay Pit and Plant, Stoddard County, Missouri
Docket No. DENV 79-97-PM
Proposed Settlement
Penalties Penaltjes
Citation No. 188803 4/25/78 §55.14-1 •••... $

66.00

$

59.40

Total Penalties in Docket No. DENV 79-97-PM $

66.00

$

59.40

36.00
38.00
60.00
52.00
66.00
60.00

$

32.40
34.20
54.00
46.80
59.40
54.00

Docket No. CENT 79-194-M
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

189105
189106
189107
189110
189111
189112

2/13/79
2/13/79
2/13/79
2/13/79
2/13/79
2/13/79

. ..... $
...... .
. . ... .
. ....
. .. . . . .
. ......

§55.4-23
§55.9-2
§55.14-1
§55.20-11
§55.9-2
§55.~-3

Total Penalties in Docket No. CENT 79-194-M $ 312.00

$ 280.80

Docket No. CENT 80-67-M
Citation No. 191807 7/19/79 §55.4-2 •••..•. $
Citation No. 191808 7/19/79 §55.14-29 .•••.

52.00
56.00

$

46.80
50.40

Total Penalties in Docket No. CENT 80-67-M .. $ 108.00

$

97.20

Docket No. CENT 81-47-M

. .. . . $

18.00

$

16.20

Total Penalties in Docket No. CENT 81-47-M. $

18.00

$

16.20

$

36.00

$

36.00

Citation No. 546219 8/21/80 §55.12-25

Southern Clay Plant, Scott County, Missouri
Docket No. CENT 81-146-M
Citation No. 544230 12/3/80 §56.14-1

. . . . . . $ 40.00

Total Penalties in Docket No. CENT 81-146-M $

40.00

Docket No. CENT 81-270-M
Proposed
Penalties

Settlement
Penalties

Citation No. 544240 6/10/81 §56.9-11 •...•.• $
Citation No. 544241 6/10/81 §56.9-2 .•..•.••

32.00
34.00

$

28.8-0
30.60

Total Penalties in Docket No. CENT 81-270-M. $

66.00

$

59.40

$

27.00
36.00
54.00
64.80
43.20
81. 00
81. 00
54.00
88.20

Southern Clay Mine, Henry County, Tennessee
Docket No. BARB 79-27-PM
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

101201
101202
101203
101204
101205
101208
101209
101210
101211

3/15/78
3/15/78
3/15/78
3/15/78
3/15/78
3/16/78
3/16/78
3/16/78
3/16/78

§55.12-34 •.•.•• $
§55.12-8 ...... .
§55.11-12 ..... .
§55.11-2 •......
§55.14-1 ...... .
§55.11-12 ..•...
§55.14-1 ..••..•
§55.17-1 .....••
§55.14-1 •.•....

30.00
40.00
60.00
72.00
48.00
90.00
90.00
60.00
98.00

Total Penalties in Docket No. BARB 79-27-M . $ 588.00

$ 529.20

Docket No. SE 81-104-M
Citation No. 110971 2/18/81 §55.5-5 .•..•... $

36.00

$

32.40

Total Penalties in Docket No. SE 81-104-M

36.00

$

32.40

$

Southern Clay Pit and Mill, Pulaski County, Illinois
Docket No. LAKE 79-170-M
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

366449
366450
366451
366452
366454

4/18/79
4/18/79
4/18/79
4/18/79
4/18/79

§55.12-32 •.•... $
§55.14-1 .....•.
§55.12-32 •.....
§55.12-25 .....•
§55.20-11 ••...•

44.00
44.00
34.00
34.00
66.00

Total Penalties in Docket No. LAKE 79-170-M. $ 222.00

$

39.60
39.60
30.60
30.60
59.40

$ 199.80

Docket No. LAKE 80-101-M
Citation No. 366079 8/29/79 §55.12-68 •..... $ 52.00
Order No. -366088 8/29/79 §55.12-17 ..••..••.
305.00

$

Total Penalties in Docket No. LAKE 80-101-M. $ 357.00

$ 321.30

l 0uv

r~•)

46.80
274.50

Docket No. LAKE 80-137-M
Proposed
Penalties
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

366483
366484
366485
366075
366077
366078
366081
366082
366083
366084
366086
366087
366089
366090
367461
367462
367463
367464
367465
367466

4/18/79
4/18/79
4/18/79
8/29/79
8/29/79
8/29/79
8/29/79
8/29/79
8/29/79
8/29/79
8/29/79
8/29/79
8/29/79
8/29/79
8/29/7_9
8/29/79
8/29/79
8/29/79
8/29/79
8/29/79

. ... •.• .. $
.. . . . ..
. .. . . . . .
... . . .
.. . . . . .
. . .. . . .
. .. .. .
. . .. . .
. . .. . ..
.. . . ..
. ... ..
.. . . . . .
.......
. ......
. .. . . .
. .. . . .
.. . . . .
. . . . ..
. . .. . .
. .....

§55.5-5
§55.5-5 .
§55.5-5
§55.12-30
§55.14-6
§55.11-1
§55.12-32
§55.12-32
§55.14-1
§55.12-30
§55.12-32
§55.14-1
§55.12-8
§55.11-1
§55.12-32
§55.12-20
§55.12-20
§55.12-20
§55.12-25
§55.12-32

48.00
48.00
48.00
44.00
72.00
48.00
44.00
44.00
52.00
44.00
44.00
52.00
30.00
48.00
44.00
44.00
44.00
44.00
44.00
44.00

Total Penalties in Docket No. LAKE 80-137-M. $ 930.00

Settlement
Penalties

$

43:-20
43.20
43.20
39.60
64.80
43.20
39.60
39.60
46.80
39.60
39.60
46.80
27.00
43.20
39.60
39.60
39.60
39.60
39.60
39.60

$ 837.00

Docket No. LAKE 80-138-M
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

366091
366092
366093
366094
366095
367467
367468
367469
367470
367471

8/30/79
8/30/79
8/30/79
8/30/79
8/30/79
8/29/79
8/29/79
8/29/79
8/30/79
8/30/79

. . . ....
... . . . . .
. . . ..
... . . .
.. . . . . .
. . ....
. . ... .
. . .. . .

§55.14-1
$
§55.4-2
§55.11-2 . .
§55.12-25
§55.11-1
§55.12-25
§55.12-32
§55.12-32
§55.12-18
......
§55.12-8

.
.. ... . .

72.00
32.00
32.00
44.00
48.00
44.00
44.00
44.00
44.00
44.00

Total Penalties in Docket No. LAKE 80-138-M. $ 448.00

$

64.80
28.80
28.80
39.60
43.20
39.60
39.60
39.60
39.60
39.60

$ 403.20

Docket No. LAKE 80-282-M

. . . . . . . . $ 36.00

Citation No. 366486 4/18/79 §55.5-5

Total Penalties in Docket No. LAKE 80-282-M. $

1 ',. . '. :·-)' 'l'}
•.J

\..

.J'

36.00

$

32.40

$

32.40

Docket No. LAKE 81-62-M
Proposed
Penalties

Settlement
Penalties

. .... $
. ... .
. . . .. .
... ...
.. .. ..

140.00
114.00
180.00
180.00
180.00

$

126-.00
102.60
162.00
162.00
162.00

Total Penalties in Docket No. LAKE 81-62-M. $

794.00

$

714.60

..... $

420.00

$

378.00

Total Penalties in Docket No. LAKE 81-83-.M. $

420.00

$

378.00

... $

122.00

$

109.80

Total Penalties in Docket No. LAKE 81-145-M $

122.00

$

109.80

. .... $
. ....
.....
. ..
. ....
. ....
.. . . .

160.00
160.00
130.00
98.00
106.00
72.00
72.00

$

144.00
144.00
117.00
88.20
95.40
64.80
64.80

Total Penalties in Docket No. LAKE 81-172-M $

798.00

$

718.20

...... $

160.00

$

144.00

Total Penalties in Docket No. LAKE 82-20-M. $

160.00

$

144.00

Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

499967
499968
499969
499970
499971

9/16/80
9/16/80
9/16/80
9/16/80
9/16/80

§55.12-25
§55.12-20
§55.14-1
§55.14-1
§55.14-6

Docket No. LAKE 81-83-M
Citation No. 499972 9/16/80 §55.11-27

Docket No. LAKE 81-145-M
Citation No. 499973 9/16/80 §55.5-50(b)

Docket No. LAKE 81-172-M
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

500513' 4/14/81
500514 4/14/81
500515 4/14/81
500516 4/14/81
500517" 4/14/81
500518 4/14/81
500520 4/14/81

§55.J-2-18
§55.12-25
§55.12-32
§55.4-24(c)
§55.11-26
§55.12-20
§55.12-30

Docket No. LAKE 82-20-M
Citation No. 500519 4/14/81 §55.15-1

Total Penalties in This Proceeding

. . .. . . . . $5' 521. 00

$4,968.90

~ e. rJ'o/71

Richard c. Steffey
~
Administrative Law Judge

1561

Distribution:
Edward H. Fitch IV, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
James H. Stock, Jr., Esq., Attorney for Southern Clay, Inc.,
Weintraub, DeHart, Robinson, Coggin & Trotter, P.C., Suite 2560,
One Commerce Square, Memphis, TN 38103 (Certified Mail)

yh

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

SEP 1Z1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 82-121
A.C. No. 36-03425-03503

v.
Maple Creek No. 2 Mine
U.S. STEEL MINING CO., INC.,
Respondent
DECISION
Appearances:

Covette Rooney, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
In the above proceeding, the Secretary seeks civil penalties
for seven alleged violations of mandatory safety standards.
The
violations were charged in citations issued by the Secretary,
each of which alleged that the violations charged were significant
and substantial as that term is used in the Mine Act.
~espondent
admits that the violations occurred, but denies that they were
significant and substantial, and contests the penalties proposed.
Pursuant to notice, the case was heard in Uniontown, Pennsylvania,
on April 28 and 29, 1983. Francis Wehr, Cleutas Mcconville, Wayne
Schneider, and Joseph Baniak testified on behalf of Petitioner;
David Coffman, Paul Shipley, and Gary Stevenson testified on behalf
of Respondent.
Each of the parties has filed a posthearing brief.
Based on the entire record and considering the contentions of the
parties, I make the following decision.
ISSUES
1. Are the violations cited of such nature as could signifcantly and substantially contribute to the cause and effect of a
mine safety or health hazard?

1563

2.

What is the appropriate penalty for each violation?

FINDINGS AND CONCLUSIONS

CO~.MON

TO ALL VIOLATIONS

1. At all times pertinent to this proceeding, Respondent was
the owner and operator of an underground coal mine in Washington
County, Pennsylvania, known as the Maple Creek No. 2 Mine.
2. Respondent is subject to the provisions of the Federal
Mine Safety and Health Act of 1977 in its operation of the Maple
Creek No. 2 Mine, and the undersigned Administrative Law Judge has
jurisdiction over the parties and subject matter of this' proceeding.
3. The subject mine has an annual production of 872,848 tons
of coal. Respondent has an annual production of 15,046,082 tons.
Respondent is a large operator.
4. The assessment of civil penalties in this proceeding will
not affect Respondent's ability to continue in business.
5. Between June 21, 1980 and June 20, 1982, there were 538
paid violations at the subject mine.
Of these, 42 were violations
of 30 C.F.R. § 75.1403i 13 were violations of 30 C.F.R. § 75.605i
and 56 were of 30 C.F.R. § 75.200.
I conclude that this history is
not such that penalties otherwise appropriate should be increased
because of it.
6.
In the case of each citation involved herein, the violation
was abated promptly and in good faith.
7. Whether a cited violation is properly checked as a significant and substantial violation is per se irrelevant to a determination of the appropriate penalty to be assessed.
The penalties
hereinafter assessed are based on the criteria in section llO(i) of
the Act.
CITATION NOS. 1250086, 1250091, 1250093, 0829641, AND 0829647
ISSUED MAY 25, 1982, JUNE 1, 1982, JUNE 2, 1982, JUNE 4, 1982
AND JUNE 9, 1982
Each of the above citations was issued for violation of the
same notice to provide safeguard. The safeguard notice was issued
July 26, 1973, and required that "all track locomotives operated
in this mine shall be equipped with a suitable lifting jack and
bar." The purpose of a lifting jack and bar is to assist in
putting a derailed locomotive back on the track.
The requirement
that a lifting jack and bar be available is designed to prevent or
mitigate two hazards:
(1) in the absence of such equipment, miners
might use other and less safe means to slew the derailed locomotive
back on tracki (2) it may be more difficult to free a miner who is
pinned or trapped by a haulage accident or derailment without such
equipment.
The locomotives involved herein all had "rerailers" but

l uli< l
r-r>

in some circumstances these devices are not effective to rerail
locomotives.
Derailments are common at the subject mine.
Injuries
have occurred at the mine in attempting to rerail locomotives without a lifting jack and bar.
Injuries have occurred at the subject
mine due to derailments where a lifting jack and bar might have
mitigated their severity.
I conclude that all of the violations
here were of such nature as could significantly and substantially
contribute to the cause and effect of a mine safety or health
hazard. The violations were serious. There is no evidence that
mine management was aware of the violations, but proper ~nspection
would have revealed them. They resulted from Respondent's negligence.
I conclude that an appropriate penalty for each violation
is $100. There is no support in the record for Petitioner's proposal to assess a higher penalty for the violation charged in
Citation No. 1250086.
CITATION NO. 1250100 ISSUED JUNE 4, 1982
This citation was issued because a clamp was missing from the
trailing cable of a shuttle car. The clamp is designed to protect
the cable, to keep it from pulling off the reel. Should that
occur, the possibility of a spark occurring when the cable leads
come apart, or the possibility of the trailing cable energizing
the shuttle car are very remote.
I conclude that the violation
was not significant and substantial. I conclude further that it
was not serious and Petitioner has not shown that it was caused by
Respondent's negligence.
I conclude that an appropriate penalty
for this violation is $30.
CITATION NO. 0829648 ISSUED JUNE 10, 1982
This citation charges a violation of the approved roof-control
plan and therefore of 30 C.F.R. § 75.200, in that the diagonal distance in the intersection of a room was 34 feet.
The approved plan
provides that whenever the sum of the diagonals exceeds 62 feet or
either diagonal exceeds 32 feet, additional supports shall be provided. There was a slip or fault in the roof. The roof bolting
was on pattern. The roof in the area in question had a drurnmy
sound. The excessive width causes a situation of unsupported roof
and, because of the abnormal roof conditions, created a likelihood
of a roof fall.
The failure to comply with the roof control plan
under these circumstances could result in a roof fall which could
seriously injure or kill miners.
I conclude that the violation
was significant and substantial. It was serious and was known or
should have been known to Respondent. Therefore, it resulted from
Respondent's negligence. I conclude that an appropriate penalty
for this violation is $250.

1565

ORDER
Based upon the above findings of fact and conclusions of law,
Respondent is ORDERED to PAY within 30 days of the date of this
decision the following penalties for the violations found herein
to have occurred:
CITATION

PENALTY

1250086
1250091
1250093
0829641
0829647
1250100
0829648

$ 100
100
100
100
100
30
250
$ 780

Total

J

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d Yi?Jvviel__

James A. Broderick
Administrative Law Judge

Distribution:

Covette Rooney, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh,
PA 15230 (Certified Mail)

/fb

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

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 82-336
A.C. No. 36-00970-03504

v.
Maple Creek No. 1 Mine
U.S. STEEL MINING CO., INC.,
Respondent
DECISION
Appearances:

Covette Rooney, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
This proceeding involves a single citation alleging a violation of the mandatory safety standard contained in 30 C.F.R.
§ 75.517.
Respondent concedes that the violation occurred but
denies that it was significant and substantial as the citation
charges. Pursuant to notice, the case was called for hearing in
Uniontown, Pennsylvania, on April 29, 1983. William P. Brown
testified on behalf of Petitioner; Gary Stevenson and Samuel Curtis
testified on behalf of Respondent.
Both parties have filed posthearing briefs. Based on the entire record; and considering the
contentions of the parties, I make the following decision.
FINDINGS OF FACT
1. R~spondent is the owner and operator of an underground
coal mine in Washington County, Pennsylvania, known as the
Maple Creek No. 1 Mine.
2. The subject mine has an annual production of 541,835 tons
of coal, and Respondent has an annual production of 15 million tons.
Respondent is a large operator.

15G'/

3. The imposition of a penalty in this case will not affect
Respondent's ability to continue in business.
4.
In the 24 months prior to May 18, 1982, Respondent had
538 violations of mandatory health and safety standards, of which
28 were of 30 C.F.R. § 75.517. This is a moderate history of
prior violations and penalties otherwise appropriate should not
be increased because of it.
5. Citation No. 1146357 was issued to Respondent o~ May 18,
1982, because of damage to the outer jacket of a trailing cable
to a continuous mining machine. The damage consisted of a 6 inch
cut in the cable jacket, 2 inches of which were covered by tape.
The ground wire was exposed. There was no visible damage to the
insulation covering the three power wires.
6.
issued.

The miner was cutting coal at the time the citation was

7. The trailing cable is dragged along behind the miner on
the mine floor as the miner moves from place to place, and is
subject to damage upon such movement.
8.

The violation was abated promptly and in good faith.

ISSUES
1. Was the violation of such nature as could significantly
and substantially contribute to the cause and effect of a mine
safety or health rrazard?
2.

What is the appropriate penalty for the violation?

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 subject
mine, and the undersigned administrative law judge has jurisdiction over the parties and subject matter of this proceeding.
2.
The condition cited by the Federal Mine Inspector on
May 18, 1982, described in Finding of Fact No. 5 was a violation
of the mandatory standard contained in 30 C.F.R. § 75.517.
3. The violation found above was of such nature as could
significantly and substantially contribute to the cause and effect
of a mine safety or health hazard.

DISCUSSION
A continuous miner trailing cable is subject to extraordinary
abuse in the harsh atmosphere of an underground coal mine. For
this reason, it has extraordinary protection: a thick outer jacket
of reinforced lead cured neoprene, inside of which is a bare ground
wire and three conductor wires, each of which is insulated with
ethylene-propylene rubber.
From the standpoint of miner safety,
both the outer jacket and the conductor wire insulation are important. The area of the mine where the continuous miner ip operating
is characteristically wet. Water can of course enter through a
break in the outer jacket. If there is a pin hole in the inner
insulation through which water seeps, this could result in cutting
the power by tripping the ground fault.
However, it also may cause
electric shock to a miner handling the cable, particularly if he is
standing in water. Following the test in the National Gypsum case,
3 FMSHRC 822 (1981), I conclude that the latter event is reasonably
likely to occur. Should it occur, it would result in an injury of
a reasonably serious nature.
Whether a violation is significant and substantial must be
determined as of the time the citation is issued.
It cannot be
assumed either that it will be corrected or that it will not be
corrected.
The condition cited by the inspector in the context
of continued normal mining operations, was of such nature as could
contribute to the cause and effect of a mine safety hazard.
4.
The violation was serious and since the cable damage was
visible and should have been observed on examination, it resulted
from Respondent's negligence.
5. Based on the criteria in section llO(i) of the Act, I
conclude that an appropriate penalty for this violation is $175.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED
1. The citation No. 1146357 including its designation as
significant and substantial is AFFIRMED.
2. Respondent shall within 30 days of the date of this
decision pay the sum of $175 for the violation found herein to
have occurred.

)

~ kf3vo&vvz:d
James A. Broderick
Administrative Law Judge

15GJ

Distribution:
Covette Rooney, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 ~arket Street,
Philadelphia, PA 19104 (Certified Mail)
Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh,
PA 15230 (Certified ~ail)

/fb

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

SEP 131~
CONTEST PROCEEDING

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

Docket No. WEVA 82-219-R
Citation No. 9914460; 3/3/82

v.

Gary No. 9 Mine

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

ORDER OF DISMISSAL
Before Judge Kennedy
The parties having moved to withdraw the captioned
notice of contest and to dismiss this matter, it is ORDERED
that the same be, and hereby is, GRANTED and the matter
DISMISSED.

Joseph B. Kennedy
Administrative Law
Distribution:
Louise Q. Symonds, Esq., U.S. Steel Mining Co., Inc., 600 Grant
Street, Room 1580, Pittsburgh, PA 15230
(Certified Mail)
Agnes Wilson, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market St., Philadelphia, PA 19104
(Certified
Mail)

ejp

1571

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 CMSHA),
Petitioner
v.

·SEP 14 1983

CIVIL PENALTY PROCEEDING

.
.
.
.

ELK RIVER SEWELL COAL
COMPANY, INC.,
Respondent

Docket No. WEVA 82-307
A.C. No. 46-06306-03005 F
Stillhouse Run No. ·l Mine

DECISION
Appearances:

Janine C. Gismondi, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Charles A. Sinsel, Esq., Sinsel & Warder,
Clarksburg, West Virginia, for Respondent.

Before:

Judge Melick

This case is before me upon the Petition for Assessment of
Civil Penalty filed by the Secretary of Labor pursuant to section
105Cd) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. section 801 et seq., the "Act" for one violation of the
operator's roof control plan under the regulatory standard at 30
C.F.R. § 75.200. The general issue before me is whether the Elk
River Sewell Coal Company (Elk River) has violated the cited regulatory standard and, if so, whether that violation was "signif icant and substantial" as defined in the Act as interpreted by the
Commission in Secretary v. Cement Division, National Gypsum Com~' 3 FMSHRC 822 (1981).
If it is determined that a violation
has occurred, it will also be necessary to determine the appropriate penalty to be assessed. Hearings on these issues were held
in Morgantown, West Virginia, on August 3, 1983.
As amended at hearing, the citation at bar alleges a violation of page 15, paragraph 4 of the operator's roof control plan
and reads in relevant part as follows:
The approved Roof Control Plan ••• was not complied with in the active working place in No. 2 entry
on the third left section ••• in that only approximately 50% of the length of the 4 foot rods which [were]

1 ur:···.l' h-.}

permanent roof support [were] grouted and additional
supports were not provided. The approved roof control
plan requires that 80% of the length of each bolt be
grouted .••
The roof control plan provides in relevant part as follows:
The minimum length of rods shall be 4 feet, and
the proper quantity of resin specified for proper' installation shall be used. When it is determined that
less than 80% of each bolt is grouted, additional support shall be installed. All resin bolts shall be installed with approved bearing plates installed firmly
against the roof.
(Ex. G-3, p.4)
On December 3, 1981, at approximately 9:20 p.m., a 6 foot
thick section of roof measuring 20 feet by 40 feet fell in the
intersection of the No. 2 entry 3 left panel of the Elk River
Stillhouse Run No. 1 Mine, resulting in the deaths of three miners and injuries to a fourth.
The fall was attributed to undetected fractures in the roof several feet above previously installed 4 foot resin-grouted roof bolts.
MSHA Inspector Homer Grose was at the scene of the roof fall
shortly after it occurred and participated in recovery operations.
He observed that of the fifteen to twenty roof bolts that were
exposed by the fall, none had been grouted as required by the
roof control plan. The plan required that 80% of each bolt be
grouted, whereas none of these bolts had been grouted more than
50% of their length. This evidence is not disputed. Moreover,
it is conceded that in the area of the fall, the only additional
roof support was that provided by temporary "turnposts" installed
in accordance with a State approved roof control plan. These
posts were admittedly not "additional supports" within the meaning of paragraph 4, page 15 of the MSHA approved plan.
Within this framework of undisputed evidence, it is apparent
that there was in fact a violation of the roof control plan as
alleged. Whether that violation was "significant and substantial", however, depends on whether, based on the particulars surrounding the violation, there existed a reasonable likelihood
that the hazard contributed to would have resulted in an injury
of a reasonably serious nature. Secretary v. Cement Division,
National Gypsum Co., supra. The test essentially involves two
considerations, Cl) the probability of resulting injury, and (2)
the seriousness of the resulting injury. MSHA readily acknowledges in this case that there was no direct causal relation between the roof fall on December 3rd and the inadequately grouted

1573

roof bolts ci~ed herein.
Inspector Grose observed that the fracture in the roof that caused the fall in this case occurred some
2 feet beyond the reach of the required 4 foot roof bolts and
opined that even if the bolts had been grouted to 80% of their
length as required by the plan, the roof fall would not have been
avoided. Grose did suggest, however, that if the insufficient
grouting had been discovered by the operator and the operator had
provided the additional roof support required by the roof control
plan, then it "might have helped".
The violation in this case was, in any event, quite serious.
Mine Foreman and Safety Director of Elk River, R. Nat Williams,
admittedly knew that this mine had a "checkerboard" top fraught
with vertical and horizontal hairline cracks. J.W. Post, Elk
River's president, was also aware of the cracks and fissures in
the roof and had experienced particular problems because of this
in supporting the roof.
Inspector Grose concluded that, particularly under these poor roof conditions, the insufficient grouting
of the roof bolts without additional permanent support would reasonably likely contribute to a roof fall and thereby lead to serious injuries and death. The Inspector's conclusions are not disputed and, based upon my own independent appraisal of the circumstances, I conclude that this violation indeed was "significant
and substantial". For the same reasons, I find that the violation reflected a high level of gravity.
In determining whether the operator was negligent, however,
it is necessary to look at the history of the provision in the
roof control plan calling for only 80% grouting of the roof bolts
in this mine.
It is not disputed that when the operator first
submitted its plan to MSHA, it provided for 100% grouting of its
four foot resin roof bolts. When 100% grouting is required, compliance may readily be determined by observing during the insertion of the bolt whether some of the resin oozes out around the
head of the bolt. In recognition of the "checkerboard" fractured
roof at the Stillhouse Run No. 1 Mine, into which much of the inserted resin would often dissipate, MSHA proposed the 80% grouting specification.
Unfortunately, no completely satisfactory or reliable method
apparently exists to determine whether roof bolts have been grouted to less than 80% of their length. While MSHA maintained at
hearing that a piece of coathanger or similar wire may in some
limited situations be inserted around the bearing plate and roofbolt head into the hole adjacent to the bolt in order to estimate
the length of roof bolt that is not grouted, MSHA apparently
failed to inform the mine operator of even this limited technique.
The mine operator, on the other hand, agreed to the 80% grouting

'

~~·~
1 ~)
-~

provision in its roof control plan while apparently not knowing
how to determine whether less than 80% of roof bolt was grouted.
According to Elk River's Mine Foreman and Safety Director
Arnett Williams, they were using enough resin with their 4 foot
bolts that was sufficient by manufacturer's specifications for
five foot bolts. Williams nevertheless knew that even that
amount of resin could "leak out" through the fissures. He had
heard of the so-called "wire test" but had never seen it done.
The president of Elk River, J. W. Post, had not even heard of the
"wire test" before the citation herein and did not in any event
believe the test was feasible.
There was insufficient clearance
to insert coat hanger wire into a roof bolt hole and, in most
cases, the bearing plate would be flush against the roof, thereby
preventing the insertion of any wire. He had tried to perform
such tests but found it impossible.
Mine Foreman John Cochran knew of no method to determine
whether the 80% grouting requirement had been met, except through
the use of a torque wrench. Cochran noted that if the bolt has
been insufficiently grouted, you may get a "springy" sensation
upon torque testing. There is no evidence in this case that Elk
River had not been performing required torque tests on the roof
bolts and there is similarly no evidence that any of the def icient roof bolts in the fall area had been detected during the
torque tests. Cochran thought the "wire test" could, in any
event, only rarely be used because, in most cases, the bearing
plate is flush against the roof, leaving no room to insert anything adjacent to the roof bolt.
Within this framework, I conclude that the operator was not
free from negligence.
It was incumbent upon the operator in accepting a less than 100% grouting requirement in its roof control
plan to have determined whether or not it could comply with that
requirement.
In this case, the operator admittedly believed
there was no satisfactory or reliable way to determine. whether it
was complying with that requirement and apparently made little
effort to determine whether there was in fact such a test.
In determining an appropriate civil penalty, I consider that
the operator is relatively small in size, that it has a minimal
history of violations and that the penalty here imposed would not
affect its ability to stay in business. Within this framework, I
find that a penalty of $1,000 is appropriate.

1575

ORDER
Citation No. 886891 is affirmed.
shall be paid by the Elk River Sewell
30 days of the date of this decision.

civil penalty of $1,000
al Company, Inc. within

Law Judge
Distribution (by certified mail):
Janine C. Gismondi, Esq., Office o
ment of Labor, 3535 Market Street,
Charles A. Sinsel, Esq., Sinsel and Warder, Goff Building, P.O.
Box 1206, Clarksburg, WV 26801
nsw

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

SE O 1fi1983
'-

.. I

..>-

-.•1

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 82-337
A.C. No. 36-03425-03505

v.
Maple Creek No. 2 Mine
U.S. STEEL MINING COMPANY, INC.,
Respondent
DECISION
Appearances:

Covette Rooney, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
The Secretary seeks penalties for two violations of mandatory
safety standards.
The violations were charged in citations ·which
alleged that the violations were significant and substantial. During the hearing, the inspector conceded that the violation charged
in Citation No. 1249719 was not significant and substantial.
Respondent does not contest.the fact that the violations occurred
but denies that they were significant and substantial and contests
the penalties proposed. Pursuant to notice, the case was heard in
Uniontown, Pennsylvania.on April 29, 1983. Francis Wehr and Alvin
Shade testified on behalf of Petitioner; Samuel Cortis testified
on behalf of Respondent. Each party has filed a posthearing brief.
Based on the entire record, and considering the contentions of the
parties, I make the following decision.
FINDINGS OF FACT

1. Respondent is the owner and operator of an underground
coal mine in Washington County, Pennsy,lvania, known as the Maple
Creek No. 2 Mine~

1571

2. The subject mine has an annual production of 872,848 tons
of coal and Respondent has a total annual production of 15 million
tons.
Respondent is a large operator.
3. The assessment of civil penalties in this case will not
affect Respondent's ability to continue in business.
4. Between June 3, 1980 and June 2, 1982, there were 656 paid
violations in the subject mine. Of these, two were violations of
30 C.F.R. § 75.1105, and eleven were violations of 30 C.F.R.
§ 75.605.
This is a moderate history of prior violations, and
penalties otherwise appropriate will not be increased because of
the history.
5. The imposition of penalties for the violations charged
will not affect Respondent's ability to continue in business.
6. Each of the violations charged occurred except as otherwise found herein and in each case the violation was abated
promptly and in good faith.
7. Citation No. 1249719 issued May 19, 1982, charged a violation of 30 C.F.R. § 75.605, consisting of a loose strain clamp
on the trailing cable of a roof bolter.
8. Citation No. 1249387 issued May 7, 1982, charged a violation of 30 C.F.R. § 75.1105 because the air current used to
ventilate the battery charging station was not coursed directly
into the return.
Coal was not being mined, but mechanics were
present on the section.
9. The hazard presented by the latter violation was two-fold:
(1) toxic fumes from the battery could be coursed to the working
faces; (2) should a fire occur, the smoke would be coursed to the
working faces.
10. The condition described in Citation No. 1249387 had been
cited on prior occasions at the subject mine.
ISSUES
1. Was the violation charged in Citation No. 1249387 properly
designated significant and substantial?
3.

What is the appropriate penalty for the violations?

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
subject mine, and the undersigned Administrative Law Judge has
jurisdiction over the parties and subject matter of this
proceeding.

2.
The violation of 30 C.F.R. § 75.6G5 charged in Citation
No. 1249719 issued on May 19, 1982, occurred, but was not of such
nature as could significantly and substantially contribute to the
cause and effect of a mine safety hazard.
The violation was not
serious.
It was not known to Respondent and was not readily
apparent.
Respondent "might have been aware of it" on weekly
examination of the equipment.
Negligence was not shown.
3. Whether a cited violation is found to be significant and
substantial is per se irrelevant to a determination of the appropriate penalty to be-assessed.
The Commission is not bound by
the Secretary's regulations setting out how he proposes to assess
penalties.
Secretary v. U.S. Steel Mining Co., Inc. 5 FMSHRC 934
( 1983) (ALJ) •

4.
Based on a consideration of the criteria in section llO(i)
of the Act, I conclude that an appropriate penalty for the violation charged in Citation No. 1249719 is $30.
5.
Respondent argues in its brief that the condition cited in
Citation No. 1249387 was not a violation of 30 C.F.R. § 75.1105.
However, in its answer, in effect i t admitted the violation, challenging only the significant and substantial designation.
I conclude that a violation of the mandatory safety standard was shown.
The battery charging station involved herein was "an area enclosing electrical installations" and air currents ventilating it are
required to be coursed directly to the return.

6.
The condition cited was reasonably likely to result in
reasonably serious injuries, either from toxic fumes or smoke inhalation.
The violation was serious.
7.
The violation was known or should have been known to
Respondent.
It had been cited before.
The violation therefore,
was the result of Respondent's negligence.
8.
Based on a consideration of the criteria in section llO(i)
of the Act, I conclude that an appropriate penalty for the violation charged in Citation No. 1249387 is $250.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED
1.
The violation of 30 C.F.R. § 75.605 described in Citation
No. 1249717 was not significaint and substantial.
2.
Respondent shall within 30 days of the date of this decision pay the sum of $30 for the violation of 30 C.F.R. § 75.605
found herein to have occurred.

1579

3. The violation of 30 C.F.R. § 75.1105 was properly designated as pignificant and substantial.
4. Respondent shall within 30 days of the date of this decision pay the sum of $250 for the violation of 30 C.F.R. § 75.1105
found herein to have occurred.

J~f.!:~eL

Administrative Law Judge

Distribution:
Covette Rooney, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh,
PA 15230 (Certified Mail)

/fb

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

SEP 19 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 83-36
A.C. No. 33-00968-03513

v.
Nelms No. 2 Mine
YOUGHIOGHENY & OHIO COAL
COMPANY,
Respondent
DECISION
Appearances:

Patrick M. Zohn, Esq., Office of the Solicitor,
U.S. Department of Labor, Cleveland, Ohio, for
Petitioner;
Robert C. Kota, Esq., St. Clairsville, Ohio,
for Respondent

Before:

Judge Broderick

STATEMENT OF THE CASE
A Federal mine inspector issued an order of withdrawal under
section 107(a) of the Mine Act for an imminent danger which
alleged a violation of 30 C.F.R. § 75.308, because he found an
accumulation of methane in a working place in the subject mine.
Respondent does not challenge the finding of methane accumulation
or the propriety of the imminent danger withdrawal order, but
contends that no violation of the mandatory standard was shown.
Petitioner's brief argues that the imminent danger order was
properly issued, but this is conceded, and, in any case, is not an
issue in a penalty proceeding.
Pursuant to notice, a hearing was held on June 27, 1983, in
Wheeling, West Virginia. Federal Mine Inspector Charles J. Hall
testified for Petitioner.
John Repella and Nelson Cramblett
testified for Respondent.
Both parties have filed posthearing
briefs. Based on the entire record and considering the contentions of the parties, I make the following decision.
FINDINGS OF FACT
1. Respondent is the operator of an underground coal mine
in Harrison County, Ohio, known as the Helms No. 2 Mine.

1581

2. Coal was produced by the subject mine and its operation
affected interstate commerce.
3. Respondent is a moderate sized operator, employed 339
miners, and produced 820,000 tons of coal annually at the subject
mine.
4. Respondent's history of prior violations shows only one
previous violation of the safety standard in 30 C.F.R. § 75.308,
and that violation was in 1973. The history is not such that a
penalty otherwise appropriate should be increased because of it.
5. The subject mine is classified as a gassy mine and is
on a 5-day inspection cycle under 103(i) of the Act because it
liberates more than one million cubic feet of methane during a
24-hour period.
6. On July 19, 1982, Federal Mine Inspector Charles J. Hall
conducted a roof control inspection of the subject mine, including
the 4 North off the Main East Section where coal was being produced.
7.
Inspector Hall issued a withdrawal order for an imminent
danger when he found a concentration of methane in excess of
5 percent within 12 inches of the roof at the last row of roof
supports in the E entry.
The order alleged a violation of 30 C.F.R.
§ 75.308.
8. A sample of the atmosphere was taken at the time the
order was issued and when tested at the MSHA laboratory in
Mt. Hope, West Virginia, showed 6.34 percent methane.
9. The inspector took a ventilation reading at the last open
crosscut which showed 10,208 cubic feet per minute which in the
inspector's judgment was marginal under the circumstances.
(30 C.F.R. § 75.301 requires.a minimum of 9,000 cubic feet a minute
at the last open crosscut) •
10. There had been a roof fall in the E entry on the previous
shift. The fall knocked out a jack and tore the curtain which was
up in the fall area. Miners were installing breaker posts behind
the fall when the order was issued.
11. The section foreman decided to abandond the E entry and
cut coal in the crosscut. Tubing f~om the air dyne fan was
extended into the crosscut. The continuous miner was cutting coal
approximately 40 feet from where the methane concentration was
found.
12. The section foreman checked the area of the fall at the
beginning of the shift and again about 20 minutes before the
inspector arrived and found approximately .2 percent methane.

,-q ...

1 -..)·Ji....

13. Following the issuance of the order, the power was shut
off, and the men were withdrawn except those engaged in abating
the condition.
The curtains were tightened and curtain was
extended into the E entry to the fall area.
The condition was
abated in about 1 hour when the methane concentration was reduced
to less than .1 percent.
14. Eleven miners were working in the section at the time
the order was issued including 2 in the E entry installing posts,
and 2 in the crosscut off the E entry cutting coal. A shuttle car
was running in and out from the continuous miner.
15. The methane monitor on the continuous miner was operating
properly at the time the order was issued. No permissibility
violations were cited in the section. The section was adequately
rock-dusted.
The section was somewhat damp.
16.
The methane concentration in the E entry was due in part
to the fan pulling the air to the face being mined (the crosscut)
and short circuiting the air to the E entry.
REGULATION
30 C.F.R.

§

75.308 provides as follows:

If at any time the air at any working place, when
tested at a point not less than 12 inches from the roof,
face, or rib, contains 1.0 volume per centum or more
of methane, changes or adjustments shall be made at
once in the ventilation in such mine so that such air
shall contain less than 1.0 volume per centum of
methane. While such changes or adjustments are underway and until they have been achieved, power to electric
face equipment located in such place shall be cut off,
no other work shall be permitted in such place, and due
precautions shall be carried out under the direction of
the operator or his agent so as not to endanger other
areas of the mine.
If at any time such air contains
1.5 volume per centum or more of methane, all persons,
except those referred to in section 104(d) of the Act,
shall be withdrawn from the area of the mine endangered
thereby to a safe area, and all electric power shall be
cut off from the endangered area of the mine, until the
air in such working place shall contain less than 1.0
volume per centum of methane.
ISSUE
Whether a finding of a concentration of methane in the explosive range under the circumstances of this case constitutes a
violation of 30 C.F.R. § 75.308?

158J

CONCLUSIONS OF LAW
1. Respondent was subject to the provisions of the Federal
Mine Safety and Health Act of 1977 in the operation of the subject
mine, and the undersigned administrative law judge has jurisdiction of the parties and subject matter of this proceeding.
2. Although excessive accumulation of methane in a working
place is not per se a violation of the mandatory safety standard
in 30 C.F.R. '§75:308, the failure of an operator to take reasonable and necessary steps to control and dissipate methane concentrations before they reach the explosive range is a violation of
the standard.
DISCUSSION
In a case under the 1969 Coal Act, the Board of Mine Operations Appeals held that a finding of methane in excess of six
percent 6 feet from the working face did not in itself establish
a violation 0£ section 303(h) (2) of the Coal Act (this statutory
provision is identical to 30 C.F.R. § 75.308). Eastern Associated
Coal Corporation, 1 IBMA 233 (1972). The holding was reaffirmed
in Mid-Continent Coal and Coke Company, 1 IBMA 250 (1972) where
the Board said:
"Neither the Act nor the Regulations provides that
a mere presence of methane gas in excess of 1.0 volume per centum
is per sea violation." 1 IBMA at 253.
In 1977, the Board held
that a 5 percent methane accumulation in the face did not establish
a violation of 30 C.F.R. § 75.301 (requiring ventilation of active
workings with air of sufficient volume and velocity to dilute,
render harmless and carry away explosive gasses) .
"The Board is
of the opinion that it would be patently inconsistent administration to hold that an excessive methane accumulation constitutes a
violation under 30 C.F.R. § 75.301 when the provisions of 30 C.F.R.
§ 75.308 provide for specific actions to be taken when such an
excessive accumulation is discovered." Mid-Continent Coal and Coke
Company, 8 IBMA 204, 212 (1977).
It is a well known fact that the 1977 Mine Act was passed in
part because of the Scotia mine disaster in March, 1976. The
Senate Committee Report on S. 717 (which became the Mine Act) reads
in part:
"At Scotia, in March, 1976, twenty three miners and
three Federal inspectors died in two explosions of
accumulated methane gas when the mine safety enforcement effort was unable to detect and address chronic
conditions of inadequate ventilation in the mine.

*

*

*

*

*

*

*

The Scotia disasters demonstrated once again that
until the Congress finally provides truly effective

,. .
1 dU'l
<)

'

mine health and safety laws and insists on responsive
administration and enforcement of those laws, this
problem will continue to occur."

s. Rep. 95-181, 95th Cong., 1st Sess. 4-5 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources,
95th Cong., 2d Sess., Legislative History of The Federal Mine
Safety and Heal th Act of 1977, at 592-3 ( 197 8) ["Leg is. Hist."] •
The Committee Report further made it clear that the civil
penalty provisions of the Act were intended to induce compliance
with the Act and its standards, and the Scotia disaster was
specifically related by the Committee to the failure of the civil
penalty procedures under the 1969 Coal Act.
See Legis. Hist. 597,
629.
Whatever the authority of the Board decisions under the Coal
Act, it is clear that when it passed the 1977 Mine Act, Congress
intended that methane buildups in underground mines be prevented
by the imposition of civil penalties in appropriate circumstances.
It is clearly not enough that a mine operator take steps to
eliminate explosive concentrations of methane after they are found
by an inspector and a withdrawal order is issued.
In the case of C F & I Steel Corporation v. Secretary,
3 FMSHRC 2819 (1981) , Judge Boltz found that because the operator
at once made necessary ventilation changes when served with an
order alleging that 1.0 percent methane was contained in the air
at the working face, no violation of 30 C.F.R. § 75.308 was established. However, in a later case, Consolidation Coal Company v.
Secretary, 4 FMSHRC 1960 (1982), Judge Kennedy observed (dicta)
11
I believe a more precise reading of the law would show that while
a 1% concentration is not a violatiop [of 75.308] an operator's
failure to control and dissipate the concentration before it
reaches 1.5% warrants a finding of violation." 4 FMSHRC at 1962,
fn 4.
3. The following factors singly or in combination require a
mine operator to take extra precautions to avoid permitting a
methane buildup to reach the explosive range:
(a) the mine liberates excessive methane and is classified as a gassy mine; (b) a
recent roof fall; (c) an abandoned area or gob area near the working
places.
4.
In this case, the operator was aware of the three factors
listed above.
It knew or should have known that extending the fan
tubing into the crosscut would short circuit the air going to the
abandoned entry. Under the circumstances, it was required by
30 C.F.R. § 75.308 to take necessary and reasonable steps - including directing a greater quantity of air to the last open crosscut,
and tightening and extending the curtains - to assure that there
would not be a methane buildup in entry E.

1585

5.
Because the Respondent failed to take such steps, it was
in violation of the mandatory standard in 30 C.F.R. § 75.308.

6. The violation was extremely serious. The methane concentration was in a working place.
It could have resulted in an
explosion and multiple fatalities.
7. The Respondent should have been aware of the violation.
See conclusions of law 3, 4, and 5 above.
The violation resulted
from Respondent's negligence.
8. Respondent's history of prior violations is not such that
a penalty otherwise appropriate should be increased because of the
history.
9.
There is no evidence that the imposition of a penalty
will have any effect on the operator's ability to continue in
business.
10. The Respondent promptly and in good faith abated the
violation after it was cited.
11. Considering the criteria in section llO(i) of the Act,
I conclude that an appropriate penalty for the violation is $2,500.
ORDER
Based on the above findings of fact and conclusions of law,
Respondent is ORDERED to pay within 30 days of the date of this
decision the sum of $2,500 for the violation found herein to have
occurred.

J

Ml)Uj

kfiY'.Jdin~i

James A. Broderick
Administrative Law Judge

Distribution:
Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department
of Labor, 881 Federal Office Building, 1240 East Ninth Street,
Cleveland, OH 44199 (Certified Mail)
Robert C. Kota, Esq., P.O. Box 1000, St. Clairsville, OH 43950
(Certified Mail)

/fb

158\J

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

22041

SEP 191983
RALPH YATES,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. WEVA 82-360-D
MSHA Case ~o. HOPE CD 82-26

CEDAR COAL COMPANY,
Respondent

Big John No. 4 Mine

DECISION
Appearances:

John Boettner, Esq., Boettner and Crane, Charleston,
West Virginia, for Complainant;
Joseph M. Price, Esq., Robinson and McElwee,
Charleston, West Virginia, for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
Complainant alleges that he was discharged from the position
he held with Respondent as section foreman because he made complaints to his supervisor concerning improper ventilation in the
subject mine and that these complaints constituted activity protected under the Mine Act. Complainant's employment was terminated
on March 9, 1982. On March 11, 1982, he filed a complaint with
MSHA. Following an investigation, MSHA notifed Complainant by
letter dated April 29, 1982, that it had determined that a violation
of section 105(c) of the Act had not occurred. On August 22, 1982,
Complainant filed a letter with the Commission which was accepted
as a complaint. Following an order to show cause, Respondent's
Answer was filed December 10, 1982. Respondent contends that the
complaint was not timely filed, and that it failed to state a cause
of action under the Mine Act. Further, it denied that Complainant's
employment was terminated because of activity protected under the
Act.
The case was heard in Charleston, West Virginia, on January 27,
1983, May 5 and May 6, 1983. The record was held open for depositions which were taken on May 18, 1983 and June 21, 1983. The
record was closed July 22, 1983. Both parties were afforded an
opportunity to file posthearing briefs with proposed findings of
fact and conclusions of law.
Respondent filed such a brief.

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
Cedar Coal Company was the operator of an underground coal mine in
Keith, West Virginia, known as the Big John No. 4 Mine.
2. Complainant was employed as a section foreman by Respondent
beginning November 4, 1980. He originally worked at Grace No. 2
Mine but in a short time he transferred to Big John No. 4 Mine as
belt foreman.
In approximately the fall of 1981, he became section
foreman at Big John No. 4 Mine in the 3 South section. Hecontinued
working as section foreman through March 8, 1982. He signed a
"quit slip" on March 9, 1982.
3. On November 5, 1981, State Mine Inspector Carl Val Hoffman
inspected the subject mine and issued a notice of violation because
in the No. 4 entry off the 3 South section, the designated escapeway was ventilated by return air and did not have reflective material
at 25 feet intervals on the life line cord. On the same day, two
other notices of violation were issued, one because the No. 4 entry
was mined at an excessive width for a distance of 18 feet, and the
other for another violation of the roof control plan in the No. 4
entry. The first violation was abated November 6, 1981, and the
others by 9:30 p.m., November 5.
4.
In approximately November, 1981, the evening shift mine
foreman in the 3 South section of the subject mine, Gary Davita,
relayed to Superintendent Forms complaints from the evening shift
section foreman that the section had on occasion been left with
insufficient air, had torn curtains, and was not properly cleaned
and rock dusted. This continued for some weeks. Davita made a
written report to Forms and participated in a meeting with
Complainant and Forms, where the complaints were discussed.
5. Following that meeting, on November 6, 1981, Mine
Superintendent David J. Forms wrote Complainant as follows:
"On • . • November 5, 1981, I called underground
· to inform you that we had a State Mine Inspector in
the office. I instructed you to clean your section
and ventilate it properly before you came outside.
You failed to follow my instructions and your dereliction of duties resulted in a loss of two hours of
production on the evening shift.

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Your actions of gross negligence and failure to
accept and respond to instructions will not be tolerated.
This letter is to inform you that any future
actions of this nature will be jeopardizing your
position at Cedar Coal Company."
6. A similar letter was sent the same day to section foreman
Shelby Burgess.
7.
In late fall, 1981, Complainant called out of the mine to
mine foreman Walter Kincaid and told him that there was insufficient air to ventilate his section, and that he had pulled his
miners out of the face area. Kincaid replied that if Complainant
had "hung (his) damn curtains, (he) would have air." In fact the
curtains were properly hung. Finally, sufficient air was introduced in the section and the crew returned to work. Shortly thereafter, the air was again insufficient. Complainant called Kincaid
and the condition was rectified.
8.
In approximately December, 1981, a new section was opened
in the subject mine, and Respondent attempted to ventilate it with
the same split of air that was used to ventilate Complainant's
section.
This resulted in a decrease in the air coming into
Complainant's section, and he complained to the mine foreman and
superintendent.
9. On February 18, 1982, notices of violation were issued by
a State mine inspector to the subject mine because of insufficient
air at a last open crosscut and in the faces of entries 2 and 3 in
the 2 South section. Three other notices were issued for violations on the 2 South section on the same day.
Three additional
notices were issued for violations on the Number 1, 3 and 4 belts.
10. On March 8, 1982, while Complainant was working the day
shift, he complained to Kincaid that his section did not have
enough air. Kincaid came to the section and agreed that the air
was insufficient. Kincaid then "went back somewhere and it was
not long before we had enough air." The section continued working
until the end of the shift and the air was sufficient at that time.
11. On March 8, 1982, State Mine Inspector Harry T. Linville
arrived at the subject mine at about 4:00 p.m., as the afternoon
shift was beginning. The inspector arrived at the 3 South section
about 5:00 p.m. and he took air readings at the last open crosscut
between entries 1 and 2 and found only 3,094 cubic feet per minute.
Readings at the last open crosscut between entries 2 and 3 showed
only 4,900 cubic feet per minute of air.
(The minimum quantity of
air reaching the last open crosscut is supposed to be 9,000 cubic
feet per minute) . A notice of violation was written which required
the condition to be abated by 5:30 p.m. the same dav.

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12. When the above condition was not abated by 5:30 p.m., on
March 8, the Inspector issued an order of withdrawal from the last
open crosscut to each of the working faces in No. 1, 2, 3 and
4 rooms in the 3 South section.
13. About 2 hours after the beginning of the day shift on
March 9, the operator asked the inspector to check the air, after
the curtains were rehung and the "back up flies" were tightened.
Ten thousand seven hundred and ninety cubic feet of air was found
at the last open crosscut between the No. 1 and 2 entries of the
3 South section and the order of withdrawal was terminated.
14. On March 9, 1982, Complainant arrived at the mine site
prior to 7:30 a.m., and prepared to go underground. Mine Superintendent Forms asked him to come into the office. Forms told
Complainant that the company "got fined" for not having air on
the section the previous night. Complainant was told he would be
fired unless he signed a iermination slip indicating that he quit
for personal reasons. Superintendent Forms noted on the slip that
"Mr. Yates failed to conform with our program and had problems
adapting to a different style of management."
15. On March 11, 1982, Complainant filed a complaint under
section 105(c) of the Mine Act with MSHA. Following an investigation, MSHA informed Complainant by a letter dated April 29, 1982,
that it had determined that a violation of section 105(c) had not
occurred.
16.
In April, 1982, mine foreman Kincaid and mine superintendent Forms were told that their employment with Respondent would be
terminated. They last worked on April 28, although they were continued on the payroll until June 30, 1982.
17.
In May, 1982, Complainant discussed the possibility of
his being rehired with the new superintendent of the subject mine,
Woody Goins. Although Goins did not promise to rehire him,
Complainant was led to believe that he might be rehired. The position was in fact filled by another in about July, 1982.
DISCUSSION
The testimony of Complainant and that of Goins are sharply
divergent on the question of whether a job offer was made or
implied.
I am accepting the testimony of Complainant on this
issue since it is largely supported by the testimony of Roy French,
President of the Local Union and a member of the Safety Committee
at the subject mine.

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18. Kincaid and Forms had certain written memoranda or notes
present when they discussed Complainant's case with the MSHA
investigator. They apparently retained such memoranda when they
left Respondent's employ.
STATUTORY PROVISION
Section 105(c) of the Act provides in part as follows:
(c) (1)
No person shall discharge or in any manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, representative of miners or applicant for employment in any
coal or other mine subject to this Act because such
miner, representative of miners, or applicant for
employment • . • has filed or made a complaint under or
related to this Act, including a complaint notifying
the operator or the operator's agent, or the representative of the miners at the coal or other mine of an
alleged danger or safety or health violation in a coal
or other mine • • • or because of the exercise by such
miner, representative of miners or applicant for
employment on behalf of himself or others of any
statutory right afforded by this Act.
(2)
Any miner or applicant for employment or
representative of miners who believes that he has been
discharged, interfered with, or otherwise discriminated
against by any person in violation of this subsection
may, within 60 days after such violation occurrs, file
a complaint with the Secretary alleging such discrimination.
Upon receipt of such complaint, the Secretary
shall forward a copy of the complaint to the respondent
and shall cause such investigation to be made as he
deems appropriate.

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(3) Within 90 days of the receipt of a complaint
filed under paragraph (2), the Secretary shall notify,
in writing, the miner, applicant for employment, or
representative of miners of his determination whether
a violation has occurred. If the Secretary, upon
investigation, determines that the provisions of this
subsection have not been violated, the complainant
shall have the right, within 30 days of notice of the
Secretary's determination, to file an action in his
own behalf before the Commission, charging discrimination or interference in violation of paragraph (1) •
The Commission shall afford an opportunity for a hearing

1581

(in accordance with section 554 of title 5, United
States Code, but without regard to subsection (a) (3) of
such section), and thereafter shall issue an order,
based upon findings of fact, dismissing or sustaining
the complainant's charges and, if the charges are sustained, granting such relief as it deems appropriate,
including but not limited to, an order requiring the
rehiring or reinstatement of the miner to his former
position with back pay and interest or such remedy as
may be appropriate. Such order shall become final
30 days after its issuance. Whenever an order is
issued sustaining the complainant's charges under this
subsection, a sum equal to the aggregate amount of all
costs and expenses (including attorney's fees) as
determined by the Commission to have been reasonably
incurred by the miner, applicant for employment or
representative of miners for, or in connection with,
the institution and prosecution of such proceedings
shall be assessed against the person committing such
violation.
Proceedings under this section shall be
expedited by the Secretary and the Commission. Any
order issued by the Commission under this paragraph
shall be subject to judicial review in accordance with
section 106. Violations by any person of paragraph (1)
shall be subject to the provisions of sections 108 and
110 (a) •
ISSUES
1. Whether Complainant's case is barred because of failure
to timely file his complaint?
2. Whether Complainant was discharged for activity protected
under the Mine Act?
3.
If Complainant was discharged for protected activity,
what relief should be awarded?
CONCLUSIONS OF LAW
1. At all times pertinent to this proceeding, Complainant
and Respondent were subject to the provisions of the Federal Mine
Safety and Health Act of 1977, and the undersigned administrative
law judge has jurisdiction over the parties and subject matter of
this proceeding.
'
2. From November, 1980, until March 8, 1982, Complainant was
employed by Respondent as a miner.
3. The complaint is not barred by the limitations for filing
claims set out in section 105(c) of the Act or by !aches.

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DISCUSSION
The statutory filing deadlines in the Mine Act, including
the requirement that a Complainant file a complaint with the
Review Commission within 30 days of the Secretary's negative
determination, are not jurisdictional. Secretary/Bennett v.
Kaiser Aluminum and Chemical Corporation, 3 FMSHRC 1539 (1981)
(ALJ); Allen v. UNC Mining and Milling, 5 FMSHRC 30 (1983) (ALJ).
Sees. Rep. No. 95-181, 95th Cong., 1st Sess. at 36, reprinted in
LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT
OF 1977, Senate Subcommittee on Labor, Committee on Human
Resources, 624 (July 1978):
"It should be emphasized, however,
that these time frames [in 105(c}] are not intended to be jurisdictional." The filing deadlines are therefore to be treated as
a statute of limitations, and it must be determined whether
Complainant showed justifiable circumstances for his late filing,
and whether the delay prejudiced Respondent. See Herman v.
Imco Services, 4 FMSHRC 2135 (1983); Montoya v. Valley Camp of
Utah, Inc., 5 FMSHRC 630 (1983) (ALJ}.
I have found (Finding of Fact No. 17) that Complainant was
led to believe that he might be rehired by Respondent. He continued to believe in this possibility until a replacement was
hired in July.
I conclude this constituted justifiable circumstances for his delay.
Respondent argues that it was prejudiced
because Complainant's supervisors, Kincaid and Forms, left its
employ and took certain notes with them before the complaint was
filed with the Review Commission. However, Respondent was aware
of the complaint filed with MSHA and did not show that an attempt
was made to preserve testimony or documents, or that Kincaid and
Forms could not have been subpoenaed or deposed.
I conclude that
prejudice was not shown. See Allen v. UNC Mining and Milling,
supra.
4. The complaints which Complainant made concerning inadequate ventilation described in Findings of Fact Nos. 7, 8 and 10
herein, constituted activity protected under the Mine Act. Any
adverse action because of this protected activity would violate
section 105 of the Act.
5. Complainant was constructively discharged although he
signed a "quit slip" since he was required to sign the slip or be
fired.
6.
Complainant has failed: to establish that his discharge
was motivated in any part by activity protected under the Act.
DISCUSSION
To establish a prima facie case of discrimination under the
Act, Complainant must show that he was engaged in activity protected by the Act and that his discharge was motivated in any part

1593

by the protected activity. Secretary/Fasula v. Consolidation Cqal
Company, 2 FMSHRC 2786 (1980) rev'd on other grounds sub nom.Consolidation Coa.l Company v. Marshall, .:66,3 F • 2d,.1211 ~rd. Cir.
1981); Secretary/Robinette y. ·uni~ed Castle coal ,Co~, ,3 .F!1SHRC _8_03
(1981); Secre_tary/Bush- v.; union c;arbide. Corpqratiqn; 5 :FMpHRC 993~
(1983). ':I:'here,.is.no evidenc~:)l§:t;e t;.ha,t Cqmpla;inant was.disc;hargec:l
because of li.;ts;· complaints o;f •. _i11aCJ.eq:uate vetjtilat;i,.on •.. Ra:th~r, the.
evidence clearly· establishes that· ne ·w~s .Gl:~scharged .<for<w!lat w~s .
percecive~l tq· be .his fa;i:lure. to 'ke~p C(dequate .. Ventilat;ioI'l.·.9p. his
section apd, "\1 ar ious 01:.11.~r perceiy~d:·~ .inadequac,ie s in·.• his wor~ as
section fo;r::-eman. ~ There, .is· sub~ri:§._ntial .. evidenqe that~. Complainant's
superyisq;r;-s ~eJ;"e: gµilty of. vario:ys: defl.cienc}es_ q;E tpeir · o~ ••
the.ir supervisiqn: of.· the mine including a. f a;i.lu:re to provide ade.~
quate: ven"t;~lation to Compfaina,J:J.t 1 .s sec:t~pn. :i:i: may pe that -11.J.s. supervis9rs a:ttempted to. ma]<e. COfD.PJ-C:linap.t th-~. scapegoat fq;-. t}1~'°e,
deficiences ang i;:he resu.ltant violatiqns ci t~d- aJ:1d ..closure.9 O]'.'.'.g.~red
by the State mt:I:J.e •.inspector ...-· T.he .fact th.:;it Forms: an,d Kinca.id .. were
discharged. shortly after Complainant lends some. support· to thl.s ·..
conclusion~
Assuming that FOrJ!1,S,.' and Kincaid.fired .co;mplairiant,-: :: ; '.
because of their own inadequacies, it would still not.establisfr·a·
cause of c:i,ction, unde:r the~ Mine:: Act. . See Sizemo:):"e v.. Dolla.r Branch
Coal. Company, .5 FMSiiRC 12.51 A19.8;:3) (!\LJ.) • ; · If: Col1tplainant: ,~a.s dt.9~
charged becq;us.e of the violation: notice,s and closure orders i.S;S.ued
by tJ:ie St,ate1 : :Cl~d j_f. pe Yf_e:r;e i O~ly~, p~:r;,tJy, r~-S.POD-9i~le or_ no,t a1t.~,§l{l
re:sp9nsibJe for su9h notip'?S 5111d: ,op:].e,r'.9,. /the dis.cha:r:-ge may h(aY,(fE:J . . .
been upfai:J;.", bµt i t dip not.,re~ul.tf.rom.p:i;:-p.tected.act._iyity und~:i;.,;
the Mine. Act. -. Therefore, no violation of; section lOS(c) ··has be.en
es~abl4-shed~·
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. ORDER ... ,.

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~ased .~~011 the; ,above f-ind-ing,s
J(lCt• and·; conci~s,ions_. O;f: .r·~~~
the complaint and' this proceeding a:re DISMISSED for failure tp' · · ,·:_
establish a violation of section 105(c) of the Act.

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Distribut.:j_,on:
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John :Boettner,· Jr., Esq., Boettner & Crane, 1115 Charleston
National Plaza, Charleston, WV 25301 (Certified Mail)
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Joseph M.. }?rice:, : :\!!sq. , .F.()b~ns9n; ,_& r.foiiwee,_. P.-. 0. ·.Box: 1}~1:"'
Charleston, WV 25326 (Certified Mail) ·
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FEDERAL MINE
SAFETY AND
HEALTH REVIEW
COMMISSION
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OFFICE OF· ADMINiSTRATIVE :LAW JUDGES
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2 SKYLINE, lp~~, fL90R
5203 LEESBURG
PIKE
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FALLS CHURCH •. Vll~G!NIJ}:; 22041

September 20, 1983

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CIVIL PENALTY PROCEEDINGS

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Docket No. KENT 83-201
.A'.C. No. 15-12515-03502

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sE,c:im'l'ARY OF LABolji, . .
. MINESAFE!I'Y AND/ HEALTH
ADMINISTRATION\, (r1,SHA) I
Petitioner

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BEAR CREEK MINING/COMPANY,
Respondent
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Before:

Docket No. KENT 83-202
is-12339..:03sos

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Judge Melick

A Notice of Hearing was issued on August 22, 1983, for·"
hearings to commence in these cases on September 22, 1983,
in Knoxville, Tennessee.
Said Notice was returned from the
address provided by Respondent marked, presumably by the
U.S. Postal Service, "Moved, left no address".
Additional
efforts were made to locate a representative for Respondent
but without success.
Commission Rule 5{c), 29 CFR § 2700.5(c), requires that
the parties "promptly" give written notice of any change of
address or business telephone number.
It is apparent that
Respondent has failed to comply with the requirements of
said rule, thereby making it impossible to serve notice upon
it and to grant its request for hearing.
Issuance of a show
cause order would obviously be futile under the circumst~nces.
I accordingly find that Respondent has waived its
right to a hearing in these cases and I hereby issue decisions by default granting the Secretary's requests for civil
penalties.
ORDER
The Bear Creek Mining Company is Ordered to pay the
following civil penalties within 30 days of the date of this
decision:
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Docket No.

Citation/Order No.

KENT 83-202
KENT 83-201

Amount
$195
84
84

$363

tive Law Judge
Distribution:

(by certified

Mr. James Trosper, Safety Director, or Mr. Duane Bennett,
Partner, Bear Creek Mining Company, Pathfork, KY 40863
Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, ~ashville; TN
37203
nsw

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

22041

SEP 21 llS
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 83-139
A.C. No. 15-13339-03502

v.

Pruden Mine

RALPH BALL, INC.,
Respondent
DECISION
Appearances:

Mary Sue Ray, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Ralph Ball, pro se, Lafollette, Tennessee, for
Respondent. - -

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of
civil penalty filed by the petitioner against the respondent
pursuant to Section llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 820(a), charging the respondent
with one violation of mandatory safety standard 30 C.F.R.
77.506, and one of 30 C.F.R. 75.200. Respondent contested
the citations and requested a hearing. The case was heard
in Knoxville, Tennessee, Wednesday, August 10, 1983.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

Section llO(i) of the 1977 Act, 30 U.S.C.

3.

Commission Rules, 29 C.F.R.

§

§

2700.l et seq.

820(i}.

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The principal issues present~d':·ip . this proceeding are
(1) whether respondent has y,iolp.t~~~t.h~provisions of the Act
and implementing safety regul:aJipn P.9:alleged in the proposal
for assess~ent of .civil penalty filed in this proceeding, and,
if so, (2J· 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.
Stipulations . , ,
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The. parties stipulated that the respondent is.subject>
to the. Act, .. that· I. have' juripdiction to !iear aJ?.c:1.Jt:1ec'.iae·~ the
case, that the resp6ndeht is a sm~ll mirie· operator, and that
the conditions cit~c:1~~Y-t4e :inspector were timely abated.
In addition, Mr. Ball' testified that the subject mine' is closed,
that it was operated only for several months, and tpat at.,. th.e
time it was active he employed five miners, i11cl:uding'himsel:L'
Mr. Ball also indicated that he is still in t~i ~ining business
and operates a small mine elsewhere. This information was
confirmed by MSHA Inspector Broc~~¥ho was present at the hearing.
P:iscussion
Section 104 (a) Citation 'No: 2057'746-~ Decei:nber 3, 1982, cites
a violation of. mandatory safety stknda~d. 3.d C.F.R. 75.200, as
follows: '
The approved roof control pl.an w_as not being
complied with in that temporary roof support
(Roof Jacks) was.not.provided for the Willcox
roof bolter. · ···
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Section' 104{a) citation No~ 20S77'4i~ December 3,; I98i, cites
afollows:·
violat_ion.·ot· rnanda_
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Ove~load ·a:na'· hb.t· ccirc.ui t protection was '.riot

pro:Vid~d .tb{ the 2.20Vl\C. elec::ttic drill_.
1. 4/.3 cabl,e anc;l fuses ,were wired over~

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Respond,ent hp.s concede,d t.he f a,ct .of violations in this
case and he ddes' not disput'~'··the cohditiens'·or 'p::riact'icks cited
by the inspector op tfi.e- face of the cJ tations ... _His p;r-incipal
contention is that. since ·the mine had, not be'coitle" t~Tly op·e,ratio:rial
at the time of the inspection ahd subsequently ceased operation,
the violations were not significant and substantia,J.. _·. Inspector
Brock confirmed that this was in fact the case.
these
circumstance9 1 the parties agreed to settle the matter without

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the need for. a\full heariYrgf and:~c;i:f·i;:et giving \both:.the .
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respondent and the inspec;tor an opportu,nit;y tqbe heard, I
rendered a bench decision approv'ihg ,:f_pi'(?posed settlement of
the matter .
" ' ··
·
Taking into account al:l of the st.atutor:y criteria found
in sectio:ri. 110 (i)' of the Act, and the fact that the respondent
closed the mine within several months after the inspection,
petitioner recommended a reduction in the civil penalties
assessed in this case.
In addition, petitioner relies on the
inspector's testimony that he does not at this time believe
that the violatio~s ~ere "significant and substantial".
Petitioner requested tha't I ·assess civil penal ties in -the
amount of $20 for each of the citations, and in support of
this recommen(lation argUed that under MSHA's regulations; all
rnon-S&S" citations are autom.itically assessed'at $20.
This proposal was rejected, and my views of MSHA's regulations
concerning civil penalt~ assessments for "non-S&S" citations
were articulated on the record and need not be iepeat~d here~
Suffice it to say that counsel's motion that I accept a
settlement of $20 for each citation on the grourid that Inspector
Brock has now changed his mind and believes that the violations
are not "significant and substaritial" was rejected.
However,
the proposed settlement, based on my independent de novo
consideration of all of the evidence.adduced on the·record
was approved, and the civil penalty assessments are allocated
as follows:
Citation No.

Date

30 CFR Section·

Assessment

2057746
2057747

12/3/82
12/3/82

75.200
77.506

$25
15
$40

ORDER
Respondent IS ORDERED to pay civil penalties in the amounts
shown above in ·satisfaction of the citations. in question:, and
payment is to be made within thirty (30) 0 days of 'the date of
this decision and.order.· Upon receipt of payment by the petitioner,
this proceeding is dismi~sed.
·
·
·

ktt~

.

Administrative ·Law Judge ·

Distribution:
Ralph Ball, President, Ralph Ball, Inc., Box 1528, 407 N.· 5th SL,
Lafollette, TN 37766 (Certified Mail)
Mary SU:e Ray, Esq., USDL, Office· of the Solici.tor, 280 u ..s. Court-·
house, 801 Broadway, Nashville, TN 37203 (Certified Mail)
/slk

15!JJ

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

SEP 22118

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

CIVIL PENALTY PROCEEDING
Docket No. P~NN 83-43
A.C. No. 36-00970-03506

v.
Maple Creek No. 1 Mine
UNITED STATES STEEL MINING
CO., INC.,
Respondent
DECISION
Appearances:

Matthew J. Rieder, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, E·sq., Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
This proceeding involves two citations alleging violations of
mandatory safety standards contained in 30 C.F.R. § 75.503 and
30 C.F.R. § 75.200. Both violations were originally designated as
"significant and substantial," but at the hearing counsel for
Petitioner conceded that the violation of 30 C.F.R. § 75.503 was
in fact not significant and substantial. In its answer and by a
clear statement in open court, Respondent has admitted that the
violations occurred but denies that there were significant and
substantial and contests the penalties proposed. Pursuant to
notice, the case was heard in Uniontown, Pennsylvania, on June 21,
1983. William R. Brown and Francis E. Wehr, Jr. testified on behalf
of Petitioner; Ira Seaton, Jr. testified on behalf of Respondent.
Each of the parties has filed a posthearing brief. Based on the
entire record and considering the contentions of the parties, I make
the following decision.
FINDINGS OF FACT
1. Respondent is the owner and operator of an underground
coal mine in Washington County, Pennsylvania, known as the Maple
Creek No. 1 Mine.

lGOO

2.
The subject mine is a large mine and the Respondent is
a large operator.

3. The imposition of penalties in this proceeding will not
affect Respondent's ability to continue in business.
4. Between August 17, 1980 and August 16, 1982, Respondent
in all its mining operations had 4,245 paid violations of mandatory
health and safety standards. Of these violations, 51 were of
30 C.F.R. § 75.503, and 55 were of 30 C.F.R. § 75.200. Considering
the size of Respondent's operation, this is a moderate history of
prior violations, and penalties otherwise appropriate should not
be increased because of it.
5. Citation No. 1146360 was issued to Respondent on May 21,
1982, alleging a violation of 30 C.F.R. § 75.503 because a plug on
a scoop was not padlocked to the receptacle.
6. The hazard caused by the violation cited was the possibility of an ignition if the plug was accidentally pulled from the
receptacle.
The scoop was in a section which had been idle for
approximately 6 months and the occurrence of an ignition was remote.

7. Citation No. 2012243 was issued to Respondent on
September 16, 1982, alleging a violation of 30 C.F.R. § 75.200
because the approved roof control plan was not being complied with
in the 7 flat left section MMV006. Only five temporary supports had
been installed in the 1 butt cut, 11 room 2 split, which cut was
12 feet deep. For such a cut, the plan required six temporary
supports.
8. The citation was issued at 8:55 a.m., prior to any work
being performed on the day shift. The five temporary supports had
been set during the previous shift (12:00 m. to 8:00 a.m.).
9. The hazard caused by the violation was an area of unsupported roof.
10. There was a slip in the roof and the roof was loose and
drummy sounding.
11.

Both violations were abated promptly and in good faith.

ISSUES

1. Was the violation charged in Citation No. 2012243 properly
designated significant and substantial?
2.

What are the appropriate penalties for the violations?

1601

... : -. ·~ -

CONCLUSIONS OF LAW
.. L ... Responcient is subject ,j:.Q , t::he proyisions of 1:he Federal
Mine Safety and Jieal th Act at 1977 .in the .operation ()f the subject
mine, and the undersigned administrative law judge has jurisdicti9n over, the parties and subjE?,ct rnc:ttteL of this proceec:ling.

2~ ,T~e~violafion-of 30 ~~F.R.~§ 4~~~6~.~harged :in 9itati6n
No. 1146360. was . not of such·nature ai;;.couldsignif:Lcantly q,nd sub-,
stant:ially contribute to.the caupe and effect of a. mine safety
hazard..
'
3.
have

The violation was moderately serious because it could
serious injury if an. :igni~ion occurred,

resulted~in
.·

'

4.
There is no evidence that the. violation was due to
Respondent's negligence.
·~

.

·-

5. Wll.ether a cited v:L<::>l.a:tion Js properly designated as a
signif ica11t ~m4:. substantial violati~:ni :is' p~r se irrelevant to a
determination,o.f the· approp:i:;-ia:t;.e:: penalty ,;to be assessed.
6.
Based on the criteria in section llO(i) of the Act, I
conclude tha~ an appropriate pen~lty fo~ this violation is $100.
7. The violation of 30 C.F.i~ § 7~-206-charged in Citation
No. 2012243 was ()f such nature as could significantly and substantially contribute to the cause and, ef:f ect of a mine safety or
health hazard.
DISCUSSION
Setting fewer supports.than.are called for in the approved
minimum roof control plan results pro tanto in an area of unsupported roof.
Unsupported roof can fall and result in s.erious
injury to miners.· Following the test in the National Gypsum cas.e,
3 FMSHRC 822 (1981) , I conclude that a roof fall and serious
injury is reasonally likely tq.occur • . Therefore, the violation
was significant and substantial.
Respondent argues that if no
temporary supports had been set by the midnight shift, no violation would have been cited, since i t would be assumed that the
day· shift would set the posts before beginning to bolt. However,
the absence of a single support could easily be overlooked.
In
fact the absence of the support was not noted in the preshift
examiner's book.
The absence of all temporary supports would more
likely result in a roof fall, but i t would.also be more evident,
and miners would be much less likely to travel under the roof.

·.J vi....
l ('f\''

8.
The; ;:c6rtditlbh' vrafs' Seri'bus-j :._ Itc: \;,as'i kho&n· '.()\r; should have
been known to Responden~:,; ThE?.· midnight: shift foreman and the
pre shift examiner on the day s,hift shoulg have noted it.
Therefore, it resulted from Respond°i:nt's .. ,negi:b<Jence.
9.
B<;ised qn J:.be er i teria i~' sect:i'oi:'i' 110 ( i) of the Act, I
conclude that
appropriate penalty for this violation is $250.

an

ORDER

2.
Respondent shall within 30:days of the date of this
decision pay the sum of $100 for the violation qf~~O C;F~R~
§ 7 5. 5 03 found herein to have occurred.
-3.
The violation of 30 C.F.R. § 75.200 described in Citation
No. 2012243 was properly designated!as~significant and substantial.

4. Respondent shall within_ 30-:days .of ,the dg.te of :this :decision pay,-the,sum of,$250.for_the-violation of 30.C.F.R. § 75.200
found herein to have occurred.
, : . ,,

·Jcu~~:/:::f~l

Administrative Law Judge

Distribution:
Matthew J. Rieder, Esq.,, Office of the SoJicitor,_Q'.S. pepartment
of Labor,_ Room 14480 -Gateway Building, _3535 ~larket Street.,
Philadelphia, . PA 19104 (Certified )1ail} "
Louise Q •• _ Symons, Esq., 600 Grg.nt Street1
PA1~230-{Certified Mail)

/fb

160J

Room 1580, Pittsburgh,

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

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 81-136
A.C. No. 15-02008-03036

v.

No.· 32 Mine

UNITED STATES STEEL CORP.,
Respondent
DECISION
Appearances:

Carole Fernandez, Esq., U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee,
for the petitioner;
Louise Q. Symons, Esq., Billy Tennant, Esq.,
U.S. Steel Corp., Pittsburgh, Pennsylvania,
for the respondent.

Before:

Judge Koutras
Statement of the Case

This case concerns a proposal for assessment of civil
penalty filed by the petitioner against the respondent on
July 6, 1981, pursuant to Section llO(a) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. 820(a), seeking a
civil penalty assessment for an alleged violation of mandatory
safety standard 30 CFR 77.1605(k), as detailed in a Section 104(a)
citation no. 981185, served on the respondent by MSHA Inspector
Alex R. Sarke, Jr., on January 23, 1981.
The cited standard states that "[b]erms or guards shall
be provided on the outer bank of elevated roadways.". The
inspector cited the alleged violation after concluding that
·the respondent had failed to provide appropriate berms or
guards at three locations along an elevated roadway leading
to the mine. At one location, the inspector observed an
existing guardrail which had been dislodged for a distance
of 29 feet. At a second location, he observed a berm 6 to
8 inches high for a distance of 22 feet in length, and at

the third location he observed a berm 16 inches high for a
distance of 29 feet in length. Locations two and three were
cited because the existing berms were less than 22 inches,
the axle height of what the inspector believed was the largest
vehicle using the roadway. The relevant MSHA inspector's
manual contained a policy providing that under Section 77.1605(k)
berms "shall be at least as high as the mid-axle height of
the largest vehicle using the roadway". The first location,
where the inspector found the guardrail to be dislodged, was
cited because the inspector considered the dislodged guardrail
to be tantamount to no guardrail at all.
By summary decision issued on February 24, 1982, 4 FMSHRC
563, I vacated the citation after concluding that the language
of Section 77.1605(k) is so vague and ambiguous as to render
the standard unenforceable.
I also concluded that the inspector
could not rely on an MSHA internal "mid-axle height" guideline
to support his citation because the guideline was not in
fact part of the cited mandatory standard.
On appeal, the Commission reversed and remanded the case
to me for further proceedings consistent with its decision,
5 FMSHRC 3, January 27, 1983. At 5 FMSHRC 5, the Commission
stated as follows:
We hold that the adequacy of a berm or
guard under section 77.1605(k) is to be
measured against the standard of whether
the berm or guard is ohe a reasonably prudent
person familiar with all the facts, including
those peculiar to the mining industry, would
have constructed to provide the protection
intended by the standard. See Alabama
By-Products, supra. See also Voegele Company,
Inc. v. OSHRC, 625 F.2d 1075, 1077-79 (3rd Cir.
1980). The definition of berm in section 77.2(d)
makes clear that the standard's protective
purpose is the provision of berms and, by
implication, guards that are "capable of
restraining a vehicle." (Footnote omitted.)
The Commission agreed with my conclusion that the citation
in this case was issued and litigated by MSHA largely, if not
solely, on the basis of the inspector's manual mid-axle policy
guideline, and observed as follows at 5 FMSHRC 6:
Reliance on the mid-axle guideline, without more,
does not necessarily establish the berm or guard
that a reasonably prudent person would have
constructed under the circumstances. If the

1605

Secretary .bel,ieyes that 9-: berm of, mid-,axle . ·.·.
.... neigJ:J.t Ls: in,de.eP. what a· i'e,as6nah1~ -peisori_.·.·· '. ·· ·
. ; wou_i:a -prmz'ide . -~n a' 'partt¢ular, :cas;e,, j;he .... '.·.. Secret:ary 1nµs1. _prove tha.'.f by ...a -prepo,n,der'ance, .·•
c.rk:di}J_~-~ .eV'.id~rice. ' - .., '. ' '
-.. ·,.
-; .

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... ··:

'of

..:

-·

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..

-·
.

·' . . : .

:Wf th 're,gard t_o,:"th~ ~f\Vp .Jci~_a.·tions whei~_ fne -exi,sting ·berms-·'. ~'" . ·
were foundby the :i.l'.),s,pec~or ·to be .,, inad-equate" beqrnse_ they_-~~ __ .
were less than:22 iriches.· (the axle height: ,of the lar,gest. - : _, . ,,,_ .v·
vehicle usi~g · th'e, rpar:l-w.ayJ ; _',the. Coimni'ssion held. that. in or-der
'.> . ·
to prove 'this. alie'g'ati.on -MSHA _5~1qs't; _:Pl7_e.seri.~ ~yi~e-nCe as, .:~8:-- _,. _·.·.· . "
what type of berm or guard a reasonably prudent person would
install.- under .the circumsta~cesi. Wi.th ,r.espect, ,to .the. l,oc~.tj,,an ,where th~-.g~ard was dislo~§ed, ..tl;le.co#issiolj,·o;Ssery~d tila..s~.
while a Pf~!ll~. ·:_f~Cie <?~'$,':: />f: yfo1)at;i6P:. ffic;l.Y '}jayE1' }J~e!); ··Efl:!tabl:i:?Jl~d,, ; "
I shoulc;l have m,ade ,findings ,as to -~hether t.he guarq ,was, . - -.c .....
actually·,'rnissip.g 'an4. w,hef,her_:the 'ie-S:porident -:e·s~tabJis,h~d ~a : . ' .
valid deferis'e 'fn .its
ciairri
that.the'guard~wa:s
·being
.. - ··:,
'
. ·.'
.
, .
..
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.-replaced
.. at the time Of the inspection
- ah.Cl. . issuapce .pf the
;.Cl
t,ation,.
-~ . ,,, .
...
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Aft,e:r ..rerna,nd. ,anst c.qmpleti,on .of qiscove.:ry., b~r t;~e 12a;t~.e,$,_, ~·
a hearing wa~f. cori,d;ucted. i,n, Pikeville, Kent,q_cky '· :0\l Ma,:i ~17 r '),~,8-3 r:r::
and the p.~r~fes -filed -'proposed findirigs arid ,c6nclt{siops, with,,-'-~:''
supporting brie·f s :· The .argumen'i:s presente'cf- therein -·have .J)e~i;i, ··,c· ; :; -; •.
considered by me in the course of this decision.
MSHA' s Testimonyo: aricLEvidenc~ , :
'":" ,:~ ~-=

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. ~'. ··; _;~~ .· ;' :::

. ·-~ ; : .

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<> ~'.· :? -~- ,\ ..:., .. ;·) _;_"_,: ::':· ~;~ .._, ,.-;, ·.. .·:·

MSHA Inspect.or.Ale~ S,a:r;~e t~stified as -t;q his-.,ba,ckg.rcmnd
and experience,.· and .·he confirmec1 that he. issued ;citati.on -No.
9s11ss on Janu~.lf:Y 2,3'·,· .1981,._'d.uiirig:a.rEiguiai . .',,insp~c;ti~ri·of
the mine. Howevef~ .h~ ¢orifirmgd ·,that ,he :wa,s - aware ,O:f- a..
vehicular acciderit.-whl'ch had' OGCUrrec;i,' when
:automobile . '
went through a berm, but~-indicated .that. the incident did not
meet MSHA' s P&r-f'.·_"~0- r~g4i-atory ·d~f±iJ_itio~ ,=qf 'a~~-6'.:ep()ita-t;ie
accident II {+'f ~. 14'~17 )... B~cau~e of' .tl:ie, :heavy .. tog,,and' s~l;-;t¢'k roads,
the so-called "ac.::;~;ident 1 ' wai:;' riot {rivestJgati.~d :uritiL,th,e -c;l~y
after it occurred; ;arid)?a~~d _,()ri~;hii:.ob.~ervatJ.:qns ·;_ ~-he,,cC:mo].uded
that the car left -~~e ·rp~~~~y-- ~~"tsh()µ#·;1~~v~pg -~nY {!ri~~9~£j;ons
that the driver ev;er : at.t~mpted, ,to stoI? ~ :-:JB · ~dd:hi;:j,9n, L'he-:(
was of the view thatthe automobile was travelling in excess
of the posted 2;p"'.';mi:/,e ~ S:F~.ec;LJ~lll:~<t;. -..·!:-.Hj1: ~;>,s~e.g~, :P,he ,,g~-t::a,if~9x1,·, _,, !'
because. of 'his be;I.J,et' ,-th\'.l.t;. th,e b,erms :.g.t th~rtl:i:i;~e.;oJoq~:t;,i().l}§:_--, c_':i-L; '•
detail~d_.~n.::h:i-,s s~~~~i~~:::w~r,e, iije4~sh~~~e K'I'.~- ::.~o);,~"'i: -1 :;;·:::
; Io:
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Mr. Sarke indicated that the normal traffic on the roadway
in 9uestiop ._;F9n~ip,}::~q.,pf ·:::Ba,i:;~~11-<iJ:rr '. .q:~f s h';~:ec:l,)~rY ~:~.h~ _m~,!f~J;f:l
coming and :-.99J-.,10g .J,rp~,-Y>lo:r:k, h~±:€:-;};9B ,,eq~:,qB1!):§µt, ~;9;Rd.:_tguppby;J'·
trucks, and - ~ar~~ f.:.'.',s~,~~ ''.<,t:r;us:k:~jis~~,:t,9qhc:tlfl6 c-~gµ~alt!ei:i~:'a,~g supplies.
The roadway in':,~i._te~t:io:r;:};~, ,t.:i;.~,-5mly.-,m~Jfn ~S~~~s £J'.'.9<:1,~.-~.:~Il.t9:~

and out of the mine (Tr .. 22)..
Tht:=: +oactway; is; 11?_t :µ.~~q fpr
coal haulage, .and coal. ha,ula,ge trus:;ks,, ,wqulCl._. no:t .b~. part, of
the normal traffic (Tr •.. 22) • _ ·He, also indfcated ·that 'some
he~vy equipment such as g~ader~ a~d "h{~h-lifts" -~isci ·~se'
-the roadway, but that they. would_ r}:)e t_ravellir,ig: at very slow
speeds because they would. be_: pe:r:fqrming _y.rork 'on.,, th-F!' ·:roa:d,W.ay
(Tr. 23).
··- - ~· ... -··· - ·_:_, -:· ·'

Mr. Sarke descri.bed ')the roadway in 'ques,t'ipn ~.~' h~virig an
average width of. abol;lt :~O,. -f~et. a;lcmg its entire· route, and
an angle of incl.ine .ot..abput- 1-0% ~· ·• In _his opird.ori; 'the 'r,qadway
is "a very steep roadway'': dTr, ..... 24). : .-He also bei).eved_J::ha't
the entire roadway was an "eleva',t,ed" roadway., .:and Ji:e 4e:fined
the term "elevated" as "any roadway that is above normal levels.
And I'm talking no~mal_;highwct-y. leveJ.- . qnce ;yo~ lea.ve 1;:.:Q.e . ,_
normal •highway leve.l,~a,nd :yoµ start up -:--:-. when .y0u s:i:a,I;t.
r· :r:
incline, ·you: haver ~tarted an. elev.ated roadwc:ty'' , ('I:'~ .,J?,f. · ·
0

.an.

()n .

.Mr. Sark~ ·stated that ·the ;be:r:;,rns
1:he r0,~4w~y 1"i,,ere, i
__ ,
.
in as good a-·condition as yoµ~qgul(l-,e}{Pect 1j:.1}$m.:t8:.§e:.'. ,and ,,; ·; -~;.·,:
he agreed, that the respondent 11 does <?-ti .qµt~tal=}d~I1$." ..j9}),.9(,~~kipg
care of the·. roads -- as,_ a, rnatte:r;- ~ of.,,f act;.-. they do tne _best .. , .-. .
···
j Ob of anybody I ha ye. . ,l-\nd .they. do-: a good Job Qrl the berms." .' : .
:1
He expressed his concern over the cited, condi tioii.s" as 'follows' . : ' '
(Tr. 2.S-.26):•
_
:·,)::
_,,,··
1
. :-.

And these par~ic~iar - ar:~_as,,, , I don\ t, ~npw ~ha{,.. _,_,;\ ,
.. ,;,,
happened to:< caµ.se ~:th~,: p~rms,- J:o1 ; .b.e .... ~.- otl)er · -.: ..
,, ,
'than the'. gµard+ail, I :know, why ::the _ gu.ard.tfl,i)_,,,
,::_,,, ..
' was Up I~ causec ;tJ1ey .had had ,a.. slip. But lr1: , •: '
'.• ;: ~··;'.
. : the two. ,a,r:eas-; whe;re the~ be-:i;:-rµs \v,er:e- 40y.!1 · a' !~Jltl_e ·; .·: ; . • i· L.
' 1o.wex· than."".",~ 'I-, do.D. 't,)~now .if i t was jµs.t ,<3,
,
•'
mistak~· o:r: ,if J:he,y h::id. fall~;n. o~f .ana:·:-they had, , :: '. :, : ~: _, ::
put them,J~ack:;;§lJ'.ld h,~dri.' tgq.tte;n: the~- ·~Pt to,, ,yqu···
,, ,,··c
know, par, ·or, y,rhat~.
_•. ·re·;:_ . , ·
- - ,,. : . : -_~,:1
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·In:. other \vprds I werej the berms and the , -· -· '
; ~ -~
.guards that you,;pbsei,Y-~<I:,:-on,th~;-rp~a,ay;~y, 'were- :t'he~Y:
higher than were present at the :three, ;l,oc~t-iori~): ...
.where you cited?
· Q.

C; ;'

·T!1e• .b~rms. 11.-a.d ~:~~;): ~s-:t:a;:~-it.e<I ~~asuripg, :thos_e· _ -~··:, r .:,
berms at; t:;h,e: fp_ot pf:, tpe ::!Iloµn;:t;a.+n: -~;s, _y.re,, s_tqJ;t,e.d , . , .
'J)
... up. , And ·at '~:hat:·pa)'.'ti,c'.111,a;r t~-me,,, ,--I. qqlild. find.:···~---·.-_-, ". ,_.,
·,no·· bept1s>:that ··we.re: -.- -::the :aye_r;ag~, :ra~·.:tw:o .. fqqt ·and l ·:, ·.. -'.
.. ·. · abov€, •.-: 'I'hese .;l-;ocations that ·.:r, .cited :were : the · ·- ._ · - , ~- , __
0
-···A.

~~~Yk~~~~1''~~~~ ·~~!~r!i~ 6~~:t!t;~~;~i~~et;¥:~6~~,;;~' .7: ,;.~

.:

~Q~ . 'was •the~~._,q.J;l~t-.hing ~t;-l}at .YO\l :cq~i'ci_,PQJ~E, to:,

'' ,;-:·; ":/ ..

such as, perhaps, the fact that ,-t;:}le road ..was.n),t

: '.' ~·. :."":· r I

as steep there or any other condition that
would be a reasonable basis for reducing the
heighth of the berms at those locations?
A. No, ma'am.
I couldn't see reducing the
height of the berms at these locations because
even though those berms -- in an interrogatory
I believe that the company stated that that
was sufficient to stop a car, and I would agree,
a 16-inch berm at one of the locations would
stop a car. But the fact is we have so much
other equipment on the highway besides passenger
cars that it would not stop.
Mr. Sarke described the .composition of the roadway as a
mixture cf "red dog" and gravel, or general "road-composition
material". Guardrails were at three locations along the roadway,
and guardrails, rather than berms, were at those locations
because 'you're looking straight down", and the company installed
the guardrails there out of recognition of the fact that the
steep locations were hazardous.
In his view, the location of
the guardrails were at a place where a reasonable person
familiar with mining circumstances would have placed them (Tr. 28).
With regard to cited location No. 1 directly across from
the bathhouse where a 29 foot area had no berm or guardrail,
Mr. Sarke confirmed that at one time a guardrail had been there,
but that it slipped off and was lying under the hill and "was
no benefit whatsoever". He did not know how long it had been
dislodged, and in his opinion it became dislodged when the
dirt ran off and slipped at the corner of the bathhouse, thereby
causing the guardrail to "just sagged down" and collapsed.
He discussed the condition with a company official, and no
one advised him that repairs were being made, and he saw
no evidence that the guardrail was in the process of being
repaired (Tr. 29). The roadway drops off approximately
10 to 12 feet "straight over the edge" at that location, and
cars, trucks, and a soft-drink vending truck used the roadway
at that location (Tr. 30).
With regard to the second location mentioned in his
citation, Mr. Sarke confirmed its location as "three-tenths
of a mile from the bathhouse and an area of twenty-two feet,
having a berm of six to eight inches". In his opinion, the
existing berm was not the height that a reasonably prudent
person familiar with the mining industry at this mine would
have installed at that location, and he believed that a reasonable
berm there would have to be the height of the biggest part of
the berms on the roadway which ranged from 24 to 36 inches.
In that area, passenger cars, trucks, graders, and supply trucks
used the roadway (Tr. 31).

1G06

As for the third location, identified as the site of
the accident, Mr. Sarke agreed that it was 1.6 miles from
the bathhouse, and that the height of the berm which was
provided was 16 inches for a distance of 29 feet.
He described
that area of the roadway as slightly inclined, as well as
curved, with a width of about 21 to 22 feet and a straight
drop of 30 feet off the edge. When asked if the existing
berm was of a height a reasonably prudent person familiar
with mining conditions, general and local, would have installed,
he replied" in the negative. He believed that judging from
the types of vehicles traveling on the roadway, a berm two
feet in height, such as those the respondent had elsewhere,
would be appropriate. He admitted that even a two foot tall
berm would not restrain a vehicle traveling at an excessive
speed, but insisted that even if the axle-height standard never
came to his attention, he would still have required a
berm two feet high as well as a guardrail at that location
(Tr. 32-35).
On cross examination, Mr. Sarke confirmed that he began
the mine inspection in January 1981, but did not know whether
he had been there in December 1980, or whether the inspection
in question was the first one he had made at that mine. He
had no idea how many times he had driven up and down the mine
access road in question before issuing the citation. He confirmed
that he had not felt endangered traveling on the road and
had considered all the berms adequate except those which were
only six to eight inches high.
When asked why he made no
determination as to the adequacy of the berms until January 1981,
he replied that inspection procedures entail examining underground first, and leaving the surface area for last (Tr. 36-37).
Inspector Sarke believed the berm at the location of the
accident to be adequate for cars and trucks, but'not for the
heavy equipment.
He considered the roadway to be a haulage
road, but was unaware of any official definition of "haulage road"
in the MSHA regulations. Also, he confirmed that he did issue
the citation under the regulatory section entitled "Loading
and Haulage" (Tr. 3 8) .
When asked if he knew of a definition of "elevated roadway"
in the standard, Mr. Sarke replied in the negative. He denied
stating that a road became an "elevated road" when it left
~~e public road on mine property, but agreed that an "elevated
roadway" could be one running across a plateau, or a route
along a mountainside where there is a possibility of falling
off on one side. Mr. Sarke did confirm that the road to Mine 32
was about the same as most public roads in Harlan County. More
specifically, he remembered driving on Black Mountain and
recalled guardrails posted along the roadside.
But he agreed

160J

that in most cases there were no rails or berms. He disclaimed knowledge of public road standards for the purpose
of comparing to those he applied to the cited mine access
road (Tr. 47).
Inspector Sarke agreed that it was impossible to build
sufficient barriers to keep cars from overtraveling on many
stretches of Kentucky mountain roads. However, with regard
to the access road in question, he did not believe it was
impossible to build such barriers because there were existing
guardrails and berms everywhere along that route. He confirmed
that the first instance where guardrails were located on the
road was on a bridge crossing a stream, but he did not know how
those rails were mounted. He did recall that the rails
consisted of metal posts joined by a steel rope, but did not
know how effective they would be in preventing a car from
falling into the stream. He guessed they could restrain an
average car traveling at ten miles an hour (Tr. 50).
Mr. Sarke stated that at location #1 where he observed
the dislodged guardrail, the foreman's parking lot connects
with the lot used by other employees. He estimated that 20
automobiles would be passing through that location at any
given time, and that these were automobiles driven by the
men during shift changes. He agreed that this part of the
roadway was level and was approximately 15 feet wide, but
that two cars would not be able to pass each other at that
location. He confirmed that one could observe any traffic
coming from one parking lot to the other. He also confirmed
that there had been problems with the ground washing away at
this location, but denied any knowledge of a timber being
fitted along the outer edge of the roadway. He did not know
how deep the guardrail holes were, and assuming that they
were in place, he could not state how much protection they
would have provided for passing vehicles. He could not recall
how the guardrails were installed to achieve abatement of the
citation (Tr. 56-59).
Mr. Sarke conceded that due to the road conditions, the
installation of guardrails directly adjacent to the roadway
where the guardrail was dislodged was not possible. While he
believed that there was a danger of cars going off the hill
because of the dislodged guardrail, he could not state whether
the guardrail prior to being dislodged because of ground
erosion would have restrained a vehicle (Tr. 60).
Mr. Sarke testified that he considered the road in question
to be a haulage road upon which people, trucks, and supplies

moved. As for the abatement, it was his recollection that
the guardrail was reinstalled so that it appeared to be capable
of adequately preventing an automobile from going over the
drop-off.
Since he approximated the drop-off as 12 feet, he
estimated that the depth of the holes in which the guardrail
was installed would be deeper, but he could not recall what the
guardrail was constructed of 16-foot posts (Tr. 66-68). He
denied any knowledge of the welding of guardrail plates going
on at the time the citation issued, and he believed that any
such activity would have taken place at the shop located some
250 feet from the bathhouse. He confirmed that he did not
visit the shop during the inspection (Tr. 70).
With regard to the citation at location #2, Mr. Sarke
described the road as being level, approximately 20 feet wide,
with an additional 15 foot wide level area extending along
the outer edge. He confirmed that he considered the existing
berm as inadequate, and expressed an opinion that ~ 24 inch
berm would be acceptable, but conceded that an automobile
could still overtravel such a 24-inch berm and turn over. He
also agreed that in determining what is reasonable, he might
consider the amount of room a driver would have to maneuver
in before reaching the berm, and he believed that at other
locations along the road where the berms were adjacent to
the roadway, 24 inches would be acceptable. Although he first
indicated that a driver would have to travel an additional 15
to 20 feet to reach the berm, he then indicated that the
berm was actually located on the road and not on the outer
bank (Tr. 72). He explained further that the road was straight,
and while the law only required the respondent to place berms
on the outer bank, the respondent exceeded this requirement
at location #2 by constructing the berm immediately on the
road.
However, the problem was that it was only six to eight
inches high (Tr. 73-75).
Mr. Sarke testified that he had interviewed the individuals
involved in the accident, but did not ascertain how long they
had worked at the mine, how many times they had ridden on
the road, or if they understood what the speed limit was.
He confirmed that the men told him they were not speeding, and
he believed they understood the speed limit to apply to the
entire road.
He reported that he had no idea how fast the
men were driving, but in his opinion they had to have been
speeding (Tr. 79).
He described the stretch of road where the accident had
taken place to be curved, about 20 feet wide, with an area
of ground on the right hand side before the drop-off, and
afterwards, also on the left-hand side.
In addition, he

161~

intimated that there might be a few feet of apron between
the roadside and the drop-off point. Mr. Sarke confirmed
that while he regarded a 16 inch berm at this location to be
unreasonable, a two foot berm would be reasonable. The
car involved in the accident, however, probably would have
traveled over a two foot berm due to its excessive speed. He
admitted telling respondent's chief safety Inspector Albert Wagers
that absent the inspector's manual instructions, he considered
these berms adequate to restrain a car traveling at its
normal speed (Tr. 84). While 16 inches might be acceptable
for ordinary traffic, it was his view that the passage of
heavy vehicles necessitated a 24 inch berm. These vehicles,
he stated, weighed thousands of pounds and crawled along
at less then 5 mph in low gear. He conceded that it was
unlikely that the drivers of these vehicles would lose control
and drive off the mountainside (Tr. 85-86).
In response to further questions, Mr. Sarke testified that
he knew of no tests conducted on the berms, and he confirmed
that he interpreted the berm standards based on his experience
as a miner and as an inspector. He did not know how long
the cited guardrail had been dislodged (Tr. 89). He confirmed
that all types of vehicles used the roadway cited at locations
#2 and #3, but that at the location of the dislodged guardrail
only automobiles and an occasional private soft drink vending
truck would use the road (Tr. 89). He also confirmed that it
was not likely that a truck would go off the roadway at that
location, but that the possibility did exist (Tr. 90). When
asked his interpretation of the cited berm standard, Mr. Sarke
responded as follows (Tr. 93-95):
Q. And is it your testimony as an MSHA
inspector that a mine operator must base the
height of his berms upon the largest vehicles
using the road or the type most commonly found
on the road?

A. No, I would
in my -- you know, my
summation of it, he has got to do what is
necessary to prevent cars from traveling over
it.
Even though I mentioned in my citation,
you know, I mentioned the axle height of the
Petibones, I believe it was. Even though I
mentioned that, that was just for informational
purposes telling, you know, that we do have
a piece of equipment with a high axle on this
roadway that is using this roadway. And we
need to make our berms to where it's going
to support that piece of equipment as well as
others.

1Gl~

Q. Well, is it your testimony, Mr. Sarke,
that a reasonably prudent mine operator can
base the height of his berms upon merely the
cars using the road?

A.
I wouldn't think he would be using very
good reason if he just based it solely on the
cars if he had other vehicles that used it
besides cars.
Q. Mr. Sarke, could a reasonably prudent mine
operator take into consideration the possibility
or likelihood that bigger vehicles would be
going slowly and less likely to run off the road
in determining the height of a berm he thought
was necessary?

A.

I think so, yes.

Q.
Could a reasonably prudent mine operator assume
on the basis of his past history that large
vehicles were not likely to go over the side of
the road and base his decision as to the height
of the berm upon that information?
A.

He would probably take that into consideration.

Q.
If it's true that no large vehicles have ever
gone off the road at No. 32 Mine, why should the
operator base his berm height upon a possibility
that one might?

A.
To me, that's the intent of the law. What
might happen, that is the intent of the law. It
might be that one may never go off, if there never
was a berm on the road. But to me that's why the
law was written, because they have had it in
cases where things have gone over, and things that
moved at slow speeds, too. Not just things that
move at high speeds. And we're talking heavy
equipment. We've had lots of heavy-equipment
accidents where they just go right over to the edge
and go right over. A lot of them without reason,
that we never could find the reason why.
Q. And Mr. Sarke, isn't it true that if one of
these heavy pieces of equipment got loose and
went over the side of that road, no berm could
restrain them?

lGlJ

A.
If we're talking about a truck coming
down that mountain, and its brakes went
out, I don't know if there is anything short
of a solid steel wall that would stop them
from going over.
Mr. Sarke confirmed that the berms on the roadway in
question are constructed by road grading materials to form
berms along the entire length of the roadway, except at three
locations which have guardrails (Tr. 102). The accident of
January 22, 1981, is the only such incident he was aware of
on the road, and while he had previously inspected the road,
he never issued prior citations for any violations of the
berm standards (Tr. 104).
In response to certain bench questions,
Mr. Sarke explained his application of the berm standard as
follows (Tr. 105, 110):
Q.
-- what do you consider when you decide
whether or not a particular mine operator's
elevated roadway is in compliance with
this standard?
A.
Okay.
I have to consider all the traffic
that travels that roadway, the different types
of equipment that are using the roadway, and
what would be sufficient to take care of the
equipment that does travel that roadway.
Q. Now, how do you generally communicate
this to a mine operator?
A.

Okay

Q. Have you ever had occasion -- just let me
ask you a follow-up question --have there ever
been occasions where you have gone to a mine
and you've determined that the berm is
inadequate? And if so, how have you communicated
this other than issuing a citation?
Q. Okay.
If I found the berms to be inadequate,
I issued the citation, okay? I have talked to
operators about their berms where there were
instances where, you know, it might be a borderline
case, that they needed to do a little extra something other than what they've got already.
I
have talked to them. And I have got them to do
it.

*

*

*

*

Q. Do you have any suggestions as to how
a mine operator -- what he should use as a
guideline?
A. What he should use maybe reflects back
to what I use. Just take the situations of
what travels the road, you know; how many times
a day it goes; the size of it; the amount of times
they're there a day, a week, a month.
If he's
reasonable in his thinking of what would protect
that when it goes up and down there -And, at Tr. 115-117:
Q. But do you believe that under the test the
Commission has set up an operator is supposed to
build his berms to take care of the situation
when a truck is out of control coming down the
mountain?
A. No.
I believe what he's supposed to do is
take into consideration that truck coming off of
that mountain and try and design them in a way
that it could give him some protection. That's
what they're there for, is for some. We know that
if he gets going 50 miles an hour, you're not
going to stop that truck coming off that mountain.
Q. Well, isn't it true that at 20 miles an hour
those two-feet and three-feet berms that you saw
wouldn't stop him coming off the mountain?
A. Possibly they wouldn't.
I don't know; I've
never had one going into that situation on that
particular -Q.
But isn't it true that when you issued the
citation you saw approximately 50 feet of an area
of a 7.1 mile road that you considered to be
inadequate?
A.

You're talking about what I wrote up.

Q.

And you considered the rest of it to be adequate?

A.

Yes, ma'am.

· .·
.J 0
l r.1

Yes.

Q. And yet it is your testimony that most of
that wasn't adequate to hold a truck coming off
the mountain?
A.
I said I didn't know whether it would or
not.
I said we can't go into those given situations.
I don't know whether it would or whether it wouldn't
until after it happens.
I considered what they
had, other than the areas that I mentioned, to
be adequate at that time. Yes.
Respondent's testimony and Evidence
Albert Wagers, chief inspector for respondent's Lynch
District, and former superintendent of the No. 32 Mine, testified
that the road in question was constructed in 1962, and that it
was built by the construction superintendent Mr. Vicini, and
it did not originally have berms. Mr. Wagers confirmed that
he was mine superintendent from 1970 through 1972, and that
during this time there were some berms, but they were not
located along the entire length of the road (Tr. 131-133).
He confirmed that the respondent and MSHA agreed that the
road was an access road, and not a haulage road, and that in
1973 a federal inspector told him that he was going to start
citing violations for the lack of berms. Mr. Wagers stated
that the inspector had cited another mine operator's haulage
road and that the operator complained that he was required
to have berms while the respondent did not. Mr. Wagers recalled
telling his supervisor that the law did not cover access roads,
only haulage roads, and that he wanted to test the law. However,
when his supervisor raised the issue of cost, he pointed out
that under normal conditions there were graders on the road
which could create berms at no additional expense and that berm
construction, rather than litigation, was preferred (Tr. 131-135).
Mr. Wagers testified that the road graders began constructing
berms beginning in November 1973, but that no determination was
made as to how much material had to be graded to form an adequate
berm. Because of constant grading, the berms generally grew in
height, and there were places along the .road where the shoulder
had eroded to such a degree that berms could not be maintained
without widening the road, a task requiring more effort then
could be expended at the time.
He stated that in such locations
the respondent tried to publicize road narrowness with horizontally
laid telephone poles and other warnings (Tr. 136).
Mr. Wagers recalled building the bathhouse in 1971, and he
confirmed that he was responsible for building the two parking
lots and the connecting road.
He agreed with Mr. Sarke that

lGlo

the road was about 15 feet wide, and that part of the bathhouse
was situated in fill, and after five years or ordinary drainage
part of the fill turned into mud (Tr. 137). He also confirmed
tat he decided to erect a guardrail made up of railroad
ties laid end on end, and this was intended to warn people
that the road was narrow.
He did not think it necessary to warn
of the bank because he felt it was plainly visible, and the
guardrail installation took place after the MSHA citation
(Tr. 139).
Mr. Wagers stated that no experiment had been conducted
to test the effectiveness of the poles for stopping cars, nor
was he familiar with any means of testing. He confirmed that,
judging from its construction, the cited guardrail would
be incapable of restraining a vehicle. He insisted that they
were only intended as warning signals, and he confirmed that
there was not enough room to build anything sturdy enough
to restrain automobiles because of space limitations, and
because of the deterioration of the fill (Tr. 141).
With regard to cited location #2, Mr. Wagers agreed with
Mr. Sarke as to the dimensions of the roadway, and the depth
of the drop-off. He stated that because he had no way of testing
what type of construction would stop a vehicle, he could not
state how high a berm should be to provide such protection.
He further stated that because miners leaving by the road tended
to travel quickly, the company tried to keep all traffic off
the road in question at the time, and speed limits were posted
above and below the hill, and safety meetings were held every
week (Tr. 142-143).
Mr. Wagers described the r9ad in question as an extension
of a county road beginning at a bridge where the asphalt
ended. Three of the 7.1 road miles were designed in a "zigzag fashion", with a steep curve at each leg, and a shallow
grade between each curve. The remaining four miles was generally
level, and if one were coming to work one would generally be
on the bank side, and going home, on the hill side. The speed
limit varied on different parts of the road, and at location #1
it was 10 mph (Tr. 143-145).
When asked about location #3, Mr. Wagers stated that
as one approached the bathhouse one would be on the bank side,
but beyond that point one would be on the hill side. The road
had a sharp left hand curve going toward the batthouse and
was about twenty seven feet wide with a drop-off of about thirty
five feet (Tr. 146). He guessed that the car involved in the
9ccident, assuming that it hit the berm, was being driven at
35 to 40 mph, and he did not believe that there was any way

'

1 ~1:·,
:.)

to determine how much force a berm could withstand.
In
view of this uncertainty, it was his opinion that a berm
could not be built for such a purpose, but should be intended
to guide traffic. Assuming that access roads were governed
by the berm requirements of the cited regulation, he believed
that the road needed berms along its entire length, with the
degree of elevation not important in calculating berm height.
He admitted that the amount of berms was related to the degree
of curve in the road, and stated that they might be necessary
to help a driver on the sharp turns. Furthermore, he believed
that any inside curves would not need the same type of berms
as would an outside curve (Tr. 147-151).
In reference to location #2, Mr. Wagers said that it was
coming out of an inside curve, and since outside curves received
most of the berm material, he regarded the 10 or 12 inches present
at location #2 sufficient to stop a car on the inside curve
(Tr. 152). He believed that the guard at location #1 was no
less effective dislodged as it was erect. He described it as
a light power pole, eight to 14 inches in diameter, round, fixed
on top of other poles, supported by dirt and topped by a
fence (Tr. 152). He doubted that it would even stop a motorcycle,
as it was constructed only as a warning apparatus.
He believed
it was possible to build a wall capable of restraining trucks
at the curve by piling up dirt thirty to fifty feet high at the
turns, but he did not think protection could be provided on the
road segment between these turns. He concluded that more
protection existed on the access road than on the public highway
over Black Mountain, and on the county highway which connects
up to the access road there were neither perms nor guardrails
(Tr. 155).
On cross examination, Mr. Wagers agreed that he had not
wanted to construct berms because he considered the road an
access road rather than a haulage road. He said that the
guardrail had been displaced in the past and that each time
it had been restored. He conceded that at this location it
would be reasonable to have some kind of protection, and in
general berms did improve safety conditions. He reiterated
that MSHA had issued citations in 1972 because of the lack of
berms. He further stated that there were many rocky areas
without much in the way of berms (Tr. 156-160) .
. I~ response to bench questions regarding Exhibit R-4,
depicting Location 1, Mr. Wagers estimated the drop-off shown
in the right side of the photograph to be about seventy feet
on an angle. He confirmed that one driving past the guardrail
coul~ be killed, but denied that the rail was any more than a
warning post or a curb feeler.
He believed that the regulation

in 77.1605(k) applied to an elevated roadway to prevent heavy
equipment and large trucks from falling off of the hill, and
he disputed its application to Location 1, a parking area. He
believed that in order to build a restraining device there
with a drop of seventy feet at an angle of seventy five degrees,
he claimed, one would have to build retaining walls and a fifty
foot wide base on the bottom to compensate for the fill foundation (Tr. 177).
When asked to compare the guardrails as depicted in
Exhibit R-4 to those in Exhibit R-5, Mr. Wagers admitted that
the former represented what MSHA regarded as compliance, but
claimed that no less protection was offered by the unrepaired
guardrails in R-5. MSHA, he indicated, issued citations when
the rails became unsightly. He regarded it as impractical to
build a restraining wall at the location in R-5, and said that
it had been his idea to mount railroad ties on the bank so
that cars could be warned by scraping against them. Later,
the company received a citation instructing it to put berms
or guardrails along the entire length of road, a citation
the company accepted by not contesting (Tr. 180-181).
With regard to Exhibits R-2 and R-3 representing cited
location 3, Mr. Wagers confirmed that the four foot berm
shown in R-2 would do a better job of keeping a vehicle on
the road than the sixteen inch berm depicted in R-3 as it
existed the day after the accident. He agreed that it was
no engineering problem to provide a four foot berm. He also
said that because of the curved nature of the road, there
would be reason to worry about drivers going over the side
everywhere on it. However, he claimed it was physically
impossible to have a continuous four foot berm along the
entire 7.1 miles of road (Tr. 184-186). When asked if he
believed the access road to be in compliance with section
77.1605(k) at present, Mr.· Wagers replied positively, explaining
that there was no place on the road where some sort of protection
was not provided. He did not think one could draft a safety
standard to fit all situations, and preferred to negotiate
with MSHA on safety questions (Tr. 187).
Robert Wilkerson, superintendent of No. 32 Mine at the
time the citation in question was issued, testified that in
his opinion the berms at locations 2 and 3 were adequate. He
regarded reasonable speed and the speed limit to be his main
determining factors. He stated that he had participated in
the construction of the guardrail in 1973, and was aware of
its state of disrepair in 1981. He further stated that he
and his construction foreman had discussed repairing it, but
had not yet done so at the time the citation issued. He

1

r~ f
'_) _j_

J

confirmed that two new posts were completed and two more
were being prepared. He described each post as consisting of
a four inch pipe with a plate welding on the bottom, and two
-railroad spikes driven through two holes to hold it upright.
Two new posts were added near the employee parking lot,
and a post was rolled back over and the ropes drawn taut with
a truck before Mr. Sarke would abate the citation (Tr. 197-201).
Mr. Wilkerson denied that the guardrail fence was designed
to prevent vehicles from going off the road, and he stated
that it was only to warn people, especially during foul weather
when visibility diminished. He also explained that when one
traveled -up to the mine there was about a half mile in which
the drop-off was on one's left, and for the rest of the journey
it was on one's right. He agreed that except for this one half
mile, on the downward trip, one always drove on the high-wall
side. When asked what he would do if he had brake problems
while driving a truck down the road, he said he would drop
his wheels into a ditch which followed along the highwall side,
and he was certain that this action would slow a truck down,
and probably stop it (Tr. 202-203).
On cross examination, Mr. Wilkerson confirmed that since
Mr. Vicini accompanied the inspector, he was not aware if
Mr. Vicini had told the inspector of work being done on the
guardrails. Mr. Wilkerson confirmed that the respondent had
never considered closing off the parking lot, and he agreed
that the two new posts were installed after the citation was
issued, and estimated that the guardrail had been dislodged
a week to two weeks prior to the issuance of the citation
(Tr. 207). Mr. Wilkerson also confirmed that Mr. Vicini was
in cha.rge of road maintenance, and that the grader operator
reported to him. He further stated that the grader did not
spend much time on the road during the summer, but during the
winter he was assigned there twenty-four hours a day (Tr. 208).
Inspector Sarke was recalled and testified that he did
not remember seeing any speed limits posted other than the 20
mph speed limit sign. He agreed that the guardrail represented
in Exhibit R-4 was as it appeared when repaired, but he disagreed
that Exhibit R-5 depicted what the unrepaired guardrail looked
like. Except for two posts at the end, the rest were lying
down under the bank, and not on the road (Tr. 209).
Mr. Sarke confirmed that Exhibit R-3 corresponded to his
recollection of location 3's appearance at the time of the
citation and he speculated that the place that the car went
off the road was shown in the lower left hand corner of the
photograph, but was not sure because he did not know at
what angle the picture was taken. With respect to the width
of the roadway, he testified that, depending on how it was
measured, the figure could vary. Although he admitted that
Exhibit R-3 showed a portion of a berm which was three to four
feet high, he asserted that if the camera had been swung more
to the right, the view of the cited area would be more accurate
(Tr. 211-213) .

In response to further questions, Mr. Sarke refeated
his contention that with normal safe 20 mph driving, a sixteen
inch berm would be adequate for passenger cars. Under certain
conditions he said, it was possible that a ten inch berm would
be acceptable, but not for cars traveling at 20 mph. He did
not remember a 10 mph sign posted in the road at the conveyor
belt, and stated that he assumed it said 20 mph (Tr. 219).
Mr. Sarke disagreed with Mr. Wager's view that the guardrail
was to be used as a "curb feeler".
He pointed out that
Mr. Wilkerson said that the wire ropes were tightened, as
though to give them strength to hold something back. When
he used the axle-height test, he had understood that the
intent of the section 77.1605(k) standard was to prevent
overtraveling of the road, and did agree that a berm would not
stop a runaway truck (Tr. 221).
Mr. Sarke did not believe that a six or eight inch berm
would keep somebody from going over the drop-off at Location 2,
where the berm was at the edge of the road. Even if the six
to eight inches had been on the outside, he would still
consider it inadequate. He asserted that he was unfamiliar
with the view that the purpose of berms was to give somebody a
signal so he could jump out of the truck, or to alert people
that they were getting to close to the edge (Tr. 223).
Mr. Sarke denied that he disapproved of the sixteen inch
berm at Location 3 merely because that was where the accident
took place. Had the car in that situation been driven under
normal circumstances, it probably would not have gone off the
edge. He believed that the mere.fact that the car did not
go off at Location 2 did not mean that the six to eight inch
berm there was acceptable, even if the car was traveling at
the speed limit. He indicated that his concept of the
"reasonable-man test" basically reflected his personal itltuition
with regard to specific circumstances, and he confirmed he
had not conducted the actual investigation of the accident.
Finally, when asked if whether, in retrospect, using the
reasonable-man test to th~ available facts, including the
fact that the vehicle was speeding, he would have issued a
citation in regard to this one location, he replied that he
probably would not (Tr. 226).
Mr. Wilkerson was recalled in rebuttal and testified
that before the citation was issued there were five to seven
posts in the fence at cited location 1. Two of the end posts
were laying on the bottom and the others were leaning. When
he reset the posts, two poles were added, wires were threaded
through the other two posts, and this wire was pulled to
straighten out the structure, but there was not much tension on
the wires.
Afterwards, Mr. Wilkerson explained, the ropes were

1621

anchored by pulling an anchor plate, nailing or sticking it
to the telephone pole, and tying the rope to it. He also
pointed out a 10 mph speed sign visible in Exhibit R-5. He
confirmed that he tightened the guardrail wires with a truck,
but emphasized that this was only to straighten out the rope
(Tr. 228).
Respondent's arguments
In its posthearing brief, respondent, for the first time,
argues that the road in question is an access road and not
a haulage road, and that section 77.1605(k) does not apply.
In support of its argument, respondent asserts that while
the term "haulage road" is not defined by the regulations,
the subtitle for subpart Q of the regulations, "Loading and
Haulage", deals only with surface areas of mines where coal
or ore are hauled.
Citing sections 77.1600, 77.1604, and
subsections (i) (j), and (1), all of which deal with haulage
road vehicles, ramp and dumping locations, respondent concludes
that section 77.1605(k) obviously is not designed to cover
the mine access road.
Assuming arguendo that the access road is covered by
section 77.1605(k), respondent maintains that the Commission's
"reasonable person'' test gives no guidance in this case.
Respondent points out that beginning in 1973 it was first cited
by MSHA for lack of berms on its access road, and that this
resulted from complaints filed by another mine operator who
had been cited by MSHA for lack of berms on its haulage roads.
Following this, the berms along the roadway in question have
been constructed by the grader operator piling materials scraped
from the road to the side to form a berm, and no road construction
or engineering guidelines have ever been agreed upon by the
parties for the construction and maintenance of berms. As a
matter of fact, respondent points out that no such evidence was
introduced at the hearing, and that the only evidence of record
is that the public authorities who construct roads in the
Commonwealth of Kentucky that are traveled by cars, trucks and
semis do not feel berms or guardrails are necessary at most
locations.
The public road on the same mountain where the
access road to No. 32 mine is located has few berms or guardrails
(Tr. 47).
The respondent maintains that the Commission's "reasonable
person" test has no relevance to the areas cited by Inspector Sarke.
In support of this conclusion, the respondent states that
cited location #1 simply connects the two parking lots used by
cars, pickup trucks, and a soft drink vending truck.
Since there

is a steep drop off, there is no way to construct a berm, and
the respondent has provided guardrails which consist of pipes
attached to a power pole which lays by the side of the road.
Conceding that this arrangement is not strong enough to
physically restrain a vehicle, respondent points out that
Inspector Sarke abated the citation after the pipes in the
middle of the guardrail were placed back in an upright position.
Respondent maintains that the only reason for the guardrail
was to warn drivers of the drop-off, and that since it served
only as a warning, it was effective as long as some of the
poles could be seen. Respondent also suggests that it seems
logical that the foremen who drove this area day after day know
the width of the road and used the side of the building as a
guide rather than the poles.
At cited location #2, the respondent points out that
Inspector Sarke was of the view that a berm of 6 to 8 inches
was not sufficient despite the fact that the vehicle had an
additional 15 feet to gain control before reaching the drop
off. Respondent contends that 6 to 8 inches is sufficient
go guide vehicles on a flat piece of road, and that a berm
of higher dimensions might serve to turn a vehicle over.
Respondent maintains that MSHA now seems to agree that
the location of the accident should not have been cited and
that the berm was adequate.
Part of the problem, states the
respondent, is the fact that there is no agreement concerning
what the berms are to protect and how.
Respondent says that
since the heavy trucks barely crawl up the steep grades at
the mine there is little danger of them going off the side
of the road on the trip up the mountain. When coming down
the hill when empty, the respondent recognizes the fact
that the trucks could attain higher speeds, but points out
that most truck drivers would gear down if they totally lost
their brakes and would steer into the ditch by the hill. However, if the driver crashed into a berm constructed substantially
enough to stop a runaway truck, respondent concludes that
the driver probably would not survive the impact.
Finally, the respondent concludes that in this case
the only evidence presented by the petitioner that the berms
on the roadway were not adequate was Inspector Sarke's opinion
that in 2 of the 3 cited locations he thought the berms were
inadequate. However, the respondent maintains that Mr. Sarke
used none of the guidelines established by the Commission to
arrive at his conclusions. Respondent finds it difficult to
determine why Mr. Sarke's opinion is any more valid than that
of the respondent's, particularly in a case where the mine
operator has spent 10 years dealing with the roadway in question

on a constant basis with no accidents resulting in injuries
to people, and where Mr. Sarke did not even realize that the
guardrails were not designed to restrain a vehicle. Further,
respondent concludes that Mr. Sarke's experience as an MSHA
inspector does not seem to give him any more authority to judge
the sufficiency of a berm with an additional fifteen feet
of road than anyone else, and that the question as to why a
vehicle would need a 2 foot berm, which might cause it to flip
over, to realize it was getting too close to the edge when
it had an additional 15 feet to stop was never explained.
Petitioner's arguments
In its posthearing brief, petitioner states that the
roadway in question is a mine access road where men, equipment
and supplies are transported to and from the mine.
In response
to the respondent's argument that an access road does not
come under the cited section 77.1605(k) mandatory standard,
petitioner cites several Commission Judge's decisions to the
contrary, including one of mine, Peabody Coal Company,
VINC 77-102-P, December 13, 1977.
In addition, the petitioner
cites cases interpreting the terms "haulage roads" and "elevated
roadways", and petitioner concludes that on the facts presented
in this case, it has met its burden in establishing the fact
that at all three cited locations, respondent's berms failed
to comply with the requirements of section 77.1605(k).
With regard to cited location #1, the petitioner argues
that the respondent had provided a guardrail which had
fallen down and had not been replaced at the time the citation
was issued. Citing Secretary v. Allied Products Co., 2 FMSHRC
2517, 2523 (1980), aff'd in relevant oart, 666 F.2d 890, 893
(5th Cir. 1982), petitioner argues that the failure to provide
any berm or guard at a location along an elevated roadway is a
violation of section 77.1605(k).
With ~espect to the argument that the respondent may have
taken initial steps to repair the guardrail, petitioner takes
the position that this is not an absolute defense to the
citation. On the evidence presented here, petitioner suggests
that it is clear that at the time the citation was issued,
respondent had taken no visible actions to correct the conditions
as they were observed and cited by Inspector Sarke.
In response to the respondent's suggestion that the
condition of the cited guardrail was sufficient enough to
serve as a "warning", petitioner takes the position that the
broken down guardrail would not be adequate. Petitioner takes
the position that the guardrail had been displaced on more
than one occasion and replaced (Tr. 156). Petitioner asserts

that it is ltidicrous to consider that any reasonable person
would not replace the fallen down guardrail if it were reasonable
to put the guardrail up in the first place. Although the two
posts which remained standing may have constituted some form
of warning, even respondent's witness Mr. Wagers did not
consider that a warning sign would have been adequate at
this location (Tr. 174). A warning sign would provide a
visual warning, which would be of limited use under some
conditions such as heavy rain, fog, or darkness. Whereas,
a guardrail, even an inadequate guardrail, might provide some
warning on the full length of the section of elevated roadway
concerned.
Although it is not the petitioner's position that
a warning was su£ficient or that the respondent intended
the guardrail to constitute merely a warning, petitioner
believes it is clear t~at there is a violation in this case
even under the very limited standard which respondent asserts
as reasonable at location No. 1.
With regard to cited location #2, petitioner concedes
that there was a berm of 6 to 8 inches in height. Petitioner
also concedes that the roadway was very level and straight,
and that there was a fifteen foot or more distance between
the edge of the road and the drop-off. However, petiiioner
points out that both the inspector and the respondent considered
that there was some danger of a vehicle running off the road
at this point and going off the drop-off, and that all types of
vehicles used the roadway.
Petitioner points out that the Commission had indicated
that the reasonable prudent person should consider the circumstances
present and that the type and size of traffic using the roadway
is a factor to consider. Relying on Inspector Sarke's
testimony that a six to eight inch berm is "just a bump in the
road", petitioner asserts that it is obvious that such a
berm would provide for some of the vehicles using the roadway
an insignificant amount of control and guidance of motion
tantamount to no berm at all.
In response to the respondent's argument concerning the
distance between the edge of the roadway and the drop-off,
pet~tioner suggests that while this may be relevant to the
issue of whether or not the roadway was elevated, Inspector Sarke
considered that there was some danger of a vehicle going over
the edge of the drop-off.
Conceding that it is not clear from
the evidence exactly how great the distance was between the edge
of the roadway and the drop-off, petitioner maintains that
the respondent has provided no evidence that would support a
finding that a vehicle of the size of those using the roadway,
traveling within the speed limit, would be able to stop before
it had traveled the distance between the edge of the road
and the drop-off. Under these circumstances, petitioner concludes
that a berm or guardrail that would provide at least some
control and guidance, should be required.

With regard to cited location #3, petitioner concedes
that the parties are in agreement that the automobile involved
in the accident was exceeding the posted speed limit and that
Inspector Sarke was of the opinion that the 16 inch berm
provided at this location was reasonable for a passenger car
traveling within the posted speed limit. However, petitioner
maintains that passenger cars are not the only type of vehicle
using the roadway at this location and that the traffic on the
roadway is a factor to be considered by the "reasonable man".
In this regard, the petitioner argues that Inspector Sarke
testified that based on the traffic on the roadway a two-foot
berm would have been reasonable (Tr. 35). The Inspector also
testified that he had measured the berms along the roadway,
that the berms he measured averaged two feet in height or
higher, and that the locations which he cited were the only
locations where he could find berms which were of a lower
height than the rest of the berms on the roadway (Tr. 26).
A two-foot berm apparently was the standard size berm which
the respondent had adopted for use along the roadway. Considering
the conditions present at location No. 3 - an incline, a curve
in the road, and a steep drop-off of approximately 30 feet
(Tr. 32), petitioner concludes that it appears that a reasonable
person would have provided at least the standard sized berm in
use on the roadway at this location.
Petitioner concedes that there was some distance between
the edge of the roadway and the drop-off at location #2,
but states that it is not clear from the testimony exactly
what the distance was since the distance depends on the point
from which a measurement is taken.
In any event, petitioner
argues that there is no showing that the distance was significantly
greater at this point than at other points where the respondent
had provided 2 foot berms, nor is there any showing that a vehicle
leaving the roadway would be able to stop in the distance
between the roadway and the drop-off.
Petitioner takes the position that the respondent has
set its own general standards along the roadway in question and
has failed to comply with them. Further, the petitioner
maintains that in applying the standards set forth by the
Commission in its decision of January 27, 1983, in this case,
it should be concluded that at location #1 there was a violation
of § 77.1605(k) in that no berm or guardrail was provided
at that location. Although the respondent may have taken
some initial steps toward repairing the guardrail which had
been used at the location, petitioner maintains that the
respondent has not established that it was in the process of
repairing the guardrail at the time the citation was issued.
At location #2 petitioner asserts that the height of the berm

1C~6

was so low that it would have provided an almost insignificant
amount of control and guidance of motion for some of the
vehicles using the roadway. At location #3, the circumstances
were such that a reasonably prudent person would have installed
at least the average size berm in use along the roadway. At
this location respondent may be said to have acted unreasonably
in light of its own standards.
Findings and Conclusions
Application of section 77.1605(k)
Respondent's argument that section 77.1605(k) is inapplicable
to the cited roadway because it is a mine access road rather
than a haulage road IS REJECTED.
This same issue was raised
and rejected by me in Peabody Coal Company, VINC 77-102-P,
decided December 13, 1977. At page 10 of that decision, I
made the following ruling which I incorporate by reference as
my ruliRg in the instant case:

* * * The regulation does not distinguish
between access roads and haulage roads, but
simply states "roadways".
The Dictionary
of Mining, Mineral and Related Terms, 1968,
at page 931, defines a "roadway" as "an
underground passage, whether used for haulage
purposes or for men to travel to and from
their work".
It also defines "access road"
(page 5) as "a route constructed to enable
plant, supplies, and vehicles to reach a
mine, quarry, or o~encast pit." While we
are dealing in the instant case with a surface
roadway, I find the definitions equally
applicable even though the dictionary definition
refers to underground.
Respondent's assertion
that for purposes of the regulation there is
a distinction between an access road and a
haulage road is rejected.
I conclude that
section 77.1605(k) makes no such distinctions
and is applicable to all roadways on mine
property used to transport coal, equipment,
or men, regardless of the size, location, or
characterization of the road being used. The
purpose of the safety regulation is to protect
the miner and to eliminate or prevent death or
injury to men traveling the roadways during·the
course of their mining duties.
Although it is true that coal is not hauled on the roadway
at the No. 32 Mine, the record establishes that the roadway
is used to facilitate the movement of men, equipment; and

·."·' {·1 'j..:.,

supplies at the mine, and that these activities are directly
related to the mining process. Accordingly, my prior ruling
and decision in Peabody Coal Company applies in the instant
case.
Fact of Violation
Inspector Sarke conceded that out of a total distance
of 7.1 miles along the roadway in question, the distance
of inadequate berms comprised only the locations cited in
his citation, namely, 29 feet at one location, and 22 feet
at another, for a total of approximately 50 feet.
The berms
on the remaining portions of the roadway were adequate {Tr. 12).
He confirmed that the automobile incident of January 1981,
was the first that he was aware of, and in his opinion the
respondent's berm program is outstanding (Tr. 26).
It seems clear to me from the record in this case that
the incident concerning the automobile traveling through the
berm and over the drop-off caught Mr. Sarke's attention and
prompted the issuance of the citation. This is not an unusual
occurrence, and it is not the first time that MSHA has been
prompted to act after the fact.
However, even though Mr. Sarke
characterizes the incident as an "accident" on the face of
the citation, his testimony is that it was not technically
a reportable "accident" because no one was injured. He testified
that unless there is an injury, the regulatory definition
of "accident" does not apply, and no formal investigation
was conducted. The fact that a speeding occupied automobile
went through a berm and became airborne before dropping over
the embankment obviously caused Mr. Sarke to reflect on the
possible inadequacy of the berms and guardrails along the
remaining portions of the roadway.
It is also clear from the record in this case that Mr. Sarke
issued the citation because he found that the berms at two
of the cited locations were less than 22 inches, the mid axleheight of the largest vehicle which he believed used the roadway
at any given time. He mechanically applied the 22 inch
"mid axle-height" standard when he issued the citation, and he
abated the citation after the berms were constructed to at
least that height. Now, the Commission has directed that I
apply a "reasonable prudent man" test to determine whether
the citation is supportable.
In my view, prior to the Commission's
remand, Mr. Sarke never heard of such an individual, and MSHA's
promulgation of such "mid axle-height" guidelines are apparently
communicated to the inspectors so as to preclude interference
from any such being.

,.;
1 ,, u
l·'

'
~.J t....

.\

As previously noted, respondent is charged with one
violation of section 77.1605(k), even though the inspector
cited three separate locations where he believed the berms
or guards were inadequate and in violation of the standard.
Findings and conclusions as to each of the cited locations
follow below.
Location No. 3
Mr. Sarke confirmed that the automobile which went
through the existing berm at location #3 was exceeding the
posted speed limit and that the existing berm obviously did
not prevent it from going over the embankment. However, with
regard to the adequacy of the existing 16 inch berm at this
location, Mr. Sarke's testimony is somewhat contradictory.
When asked on direct whether the existing 16 inch berm was of·
a height a reasonably prudent person would have installed, he
replied "no" (Tr. 33) . He explained that based on the types
of vehicles using the roadway at that location, he would
recommend a 24 inch berm similar to those provided by the
respondent along other portions of the roadway, even though
the application of the ''axle-height" guideline would call for
a 22 inch berm (Tr. 33). He then conceded that a 24 inch berm
would not restrain an automobile traveling at excessive speed.
On cross-examination, Mr. Sarke stated that the existing
16 inch berm at the accident location was adequate for cars
and trucks, but not for heavy equipment such as ''petibones,
semis, and supply trucks" (Tr. 38). He also indicated that
he did not feel he was putting his own personal safety in
danger while traveling up and down the road, and that the
existing berm at the accident location was adequate to keep
his pick-up truck from going off the road (Tr. 37). Mr. Sarke
candidly admitted that he told Mr. Wagers that absent the
"axle height" MSHA guidelines, the 16 inch berm was adequate
to restrain an automobile using the road. Mr. Sarke also
conceded that any heavy equipment using the roadway "crawled
along at less than 5 mph in low gear", and he conceded that it
was unlikely that the drivers would lose control and drive over
the edge (Tr. 85-86).
I reject the petitioner's argument that since the respondent's
berms along other portions of the roadway were determined to
be at least two feet high that this somehow became a reasonable
standard for the respondent to follow at all locations where
berms were required, and that if the respondent failed to follow
this standard a violation of section 77.1605(k) would result.
While the petitioner's argument suggests that the respondent
accepted the 22 inch ''mid-axle" height guideline and therefore
constructed its berms to exceed that height to insure compliance,

1623

there is no evidence to support such a conclusion.
In my
view, if the respondent had constructed all of its berms to
a height of 20 feet, Inspector Sarke would still have issued
the citation because of the "mid-axle height" guideline he
was following, and petitioner would obviously not argue that
respondent was following its own standard.
Petitioner's evidence that the 16 inch berm at location
#3 was inadequate for vehicles other than automobiles and
trucks consists entirely of the opinions of Inspector Sarke
based on his experience as an inspector. However, there is
no showing that Mr. Sarke has any particular expertise on
road and berm construction, and his conclusion that a 16 inch
berm is inadequate for "petibones, semis, and supply trucks"
is unsupported by any credible evidence of record. Quite the
contraryt Mr. Sarkes conceded that any heavy equipment using
the roadway would travel at a "crawl" in low gear at less
than 5 mph. Further, he also admitted that the existing
berm was adequate for his pick-up truck, that he felt safe
on the roadway with the existing berm, and that it was unlikely
that drivers of heavy equipment would lose control of their
vehicles. Mr. Sarke conceded that a reasonable prudent mine
operator could take into consideration the possibility or
likelihood that larger vehicles would be going slowly and
were less likely to run off the road in determining the height
of a berm he thought was necessary (Tr. 94). He also conceded
that such an operator could also assume on the basis of his
post accident-free history that large vehicles were not likely
to go over the side of the road (Tr. 94).
After careful consideration of all of the credible
testimony and evidence adduced in this case, I conclude and
find that the petitioner has failed to establish by a preponderance
of the evidence that the existing berm of 16 inches cited by
Inspector Sarke was inadequate and in violation of the cited
standard.
I concluded and find further that the petitioner
has failed to establish that the respondent failed to act in a
reasonable and prudent manner to insure the safety of the
miners using the roadway in question. Accordingly, that portion
of the citation which alleges a violation of section 77.1605(k),
at location #3 IS VACATED.
Location No. 1
. Exhibit ALJ-1 is a rough sketch of cited location No. 1,
adJacent ~o the bathhouse.
The roadway is approximately
15 feet wide at the point between the edge of the bathhouse and
the drop-off opposite the bathhouse.
Photographic exhibit R-4
depicts th~ guardrail as it is supposed to look, with all
poles or pipes in an upright position anchored by cables (Tr. 170).

lGJO

Photographic exhibit R-5 depicts the guardrail as it appeared
when it was in disrepair, and the parties agreed that the
photograph generally approximates the condition of the guardrail
at the time Inspector Sarke issued the citation (Tr. 170).
Inspector Sarke's narrative description of location No. 1
on the face of the citation states that no guardrail was
present for the 29 feet adjacent to the drop-off.
It then
states that the guardrail had been dislodged.
It now seems
clear to me that the inspector treated the dislodged poles
and cables which made up the guardrail as if no guardrail
existed.
In short, since the poles or pipes were not upright
and the cables were not drawn taut to support them, the inspector
obviously believed that the guardrail in that condition was
inadequate.
As pointed out in my previous summary decision in this
case, the term "guardrail" is not defined by MSHA's regulations.
However, in its decision of January 27, 1983, the Commission
stated that the protective purpose of section 77.1605(k),
insofar as berms and guardrails are concerned, is that they
are "capable of restraining a vehicle".
In a footnote, the
Commission explained the phrase "restraining a vehicle" to
mean "reasonable control and guidance of vehicular motion".
Thus~ given the facts of this case, the question presented is
whether the existing guardrail at the time the citation was
issued was in compliance with the requirements of section 77.1605(k).
Respondent's assertion that it was in the process of
repairing the collapsed guardrail at the time of the inspection
IS REJECTED as an absolute defense to the citation. Even if
the respondent could establish this was the case, I would consider
this fact in mitigation of the penalty as an indication of
respondent's good faith compliance efforts. However, I cannot
conclude that the respondent has established through any
credible evidence that it was in the process of repairing the
guardrail.
I accept the inspector's credible testimony that
he saw no such activity going on at the time of his inspection,
and my finding is that no such activity was taking place at the
time of the inspection and the issuance of the citation.
With regard to the actual condition of the guardrail
at the time the inspector issued his citation, the parties are
in agreement that it was not as originally installed. That is,
it generally looked like it appears in photographic exhibit R-5.
Further, Inspector Sarke indicated that the drop-off over the
edge of the roadway where the guardrail was located was a
"straight over-the-edge drop" of some 10 to 12 feet.
He
confirmed that the guardrail had apparently become dislodged
because of erosion, and he could not state whether the corrected
guardrail was capable of restraining a vehicle.

-. ')
1 (-Ju.J...

Respondent's witness Albert Wagers took the position
that the cited guardrail was only intended to warn anyone
travelling along that portion of the roadway that the roadway
was narrow, and he conceded that given the way it was constructed,
the guardrail would be incapable of restraining a vehicle. He
believed the purpose of the guardrail was to serve only as a
"warning signal" or "curb feeler" to alert a driver that he was
getting close to the edge of the drop-off. However, he conceded
that if one were to drive over the edge, the result could be fatal.
Superintendent W£lkerson generally agreed with Mr. Wagers'
conclusions.
I conclude and find that the condition of. the guardrail at
the time the citation was issued was inadequate and that it
did not comply with the requirements and intent of sectTon
77.1605(k}. The record here establishes that the day of the
inspection in question was not the first time the guardrail
was allowed to be in disrepair, and that on each such occasion
the respondent made the repairs so as to insure that the posts
and cable were upright and taut so as to be effective. Under
these circumstances, I conclude that the petitioner is correct
in its assertion that any reasonable person would not replace
or repair the guardrail if it were not reasonable to nut it un in
the first place.
I reject the notion that the guardr~il was installed raerely to serve as a warning, and I conclude and find
that the condition that it was in when the inspector observed
it would not restrain a vehicle from over-travelling and
falling over the edge. Accordingly, the portion of the citation
citing a violation at location No. 1 IS AFFIRMED.
Location No. 2
Exhibit ALJ-2 is a rough sketch of cited location No. 2.
The parties are in agreement that at this location the roadway
is level and straight and, that it is approximately twenty
feet wide. Also, while there is some dispute as to the actual
distance, there is an additional fifteen foot wide shoulder
between the edge of the roadway where the 6 or 8 inch berm
was located and the drop off. Under these citcumstances, a
vehicle using the roadway would first encounter the berm and
then would travel another 15 feet before reaching the edge
of the drop-off.
Inspector Sarke believed that a reasonably prudent person
would construct a berm 24 to 36 inches high at the cited location,
and he stated that cars, trucks, graders, and supply trucks
used that portion of the roadway. However, he conceded that
an automobile could still overtravel a 24 inch berm and turn
over, and while he believed that the respondent exceeded the
requirements of section 77.1605(k) by locating the berm immediately
at the edge of the roadway rather than at edge of the drop-off,
he was of the view that the 6 to 8 inch berm was "just a bump in
the road" and was inadequate.

~> >
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.,~

The question here is whether or not the existing berm
of six to eight inches would provide "reasonable control and
guidance of vehicular motion" for the vehicle traffic using
the cited portion of the roadway. Given the fact that any
heavy equipment on the roadway would be travelling at a slow speed,
and given the fact that the berm was at the edge of the roadway
with another 15 feet of shoulder to the drop-off, one could
possibly conclude that the existing berm was adequate for
"controlling and guiding" heavy equipment. Petitioner's posthearing argument that the existing berm provided an insignificant
amount of control and guidance of motion for some of the vehicles
using the roadway suggests that this is not true for all of the
vehicles using it. However, petitioner has presented no credible
testimony to support its case and relies only on the opinion
of Inspector Sarke. Since he obviously applied the "axle height"
theory, his "hindsight" opinions applied retroactively to a
cited condition which ~xisted over two and one-half years ago is
of no value.
Under the circumstances, I cannot conclude that
the petitioner has established a violation at location #2,
and that portion of the citation IS VACATED.
Size of Business and the Effect of the Civil Penalty on the
Respondent's Ability to Remain in Business.
The parties have stipulated that the respondent is a large
operator and that the payment of the civil penalty will not
affect its ability to continue in business.
I adopt this
stipulation as my finding and conclusion on this question.
Good Faith Compliance
The record establishes that the respondent acted in good
faith in abating the cited condition and I have considered
this in the civil penalty assessed for the violation in question.
Negligence
I conclude and find that with respect to that portion of
the citation citing the guardrail location respondent failed to
exercise reasonable care to maintain the guardrail in a condition
that would provide reasonably adequate protection for vehicles
passing by the area. Under the circumstances, I conclude that
the cited condition resulted from the respondent's failure to
exercise reasonable care and that this constitutes ordinary negligence.
Gravity
Given the general disrepair of the guardrail at the time
of the citation I believe it is reasonable to conclude that
it would not restrain a vehicle from going over the edge of the

163J

drop off. As a matter of fact, Mr. Wagers admitted as much,
even though he believed that the guardrail was only there to
provide a warning.
In any event, I conclude that the cited
condition was serious.
History of Prior Violations
Petitioner has submitted a computer print-out which
indicates that no violations of section 77.1605(k) were issued
at the mine in question during the two-year period prior to
the issuance of the citation in issue in this case. However,
the history report does show that the respondent has been
cited four times during this same two-year period for violations
of section 77.1605(k) but that these violations occurred at
other mines. Under the circumstances, and taking into account
the inspector's testimony that the respondent's berm program
is one of the best that he has encountered.in his district,
I conclude that any additional increase in the penalty assessed
because of respondent's history of prior violations is not
warranted.
Penalty Assessment
Petitioner has recommended a civil penalty in the amount
of $295, an increase of $125 over the penalty assessment
proposed when this case was originally filed on July 6, 1981.
That proposal took into account the fact that the citation
cited three separate locations where the petitioner believed
a violation of section 77.1605(k) had occurred. Given the
fact that I have sustained the citation for the one guarding
location and have vacated it for the other two berm locations,
petitioner's recommendation is rejected.
I believe that a
civil penalty assessment in the amount of $125 is appropriate
for the violation which has been affirmed.
ORDER
Respondent IS ORDERED to pay a civil penalty assessment
in the amount of $125 within thirty (30) days of the date of
this decision in satisfaction of Citation No. 981185, January 23,
1981, 30 CFR 77.1605(k), and upon receipt of payment by the
petitioner, this cas~ is dismissed.

Judge

1G3~

Distribution:
Carole Fernandez, Esq., U.S. Department of Labor, Office of
the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Louise Q. Symons, Esq., U.S. Steel Corp., 600 Grant St.,
Rm. 1580, Pittsburgh, PA 15230 (Certified Mail)

/slk

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

PATRICIA SWENSEN,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 82-105-D
DENV CD 82-9

v.
EMERY MINING CORPORATION,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Vail

This proceeding involves a complaint of discrimination by
Patricia Swensen (hereinafter "Swensen") against Emery Mining
Corporation (hereinafter "Emery") pursuant to section 105(c)(3) of
the Federal Mine Safety and Health Act of 1977. The complainant
alleges that Emery is guilty of discrimination in not disciplining
an employee accused of sexually harassing her and requests payment of
six days of lost pay and travel expenses for 600 miles incurred as a
consequence of this occurrence.
Emery filed an answer denying any
acts of discrimination against Swensen. This case was scheduled by
proper notice for hearing, in conjunction with another case, on August
23, 1983, in Price Utah.
At the commencement of the hearing, James T. Jensen entered
formal appearance as counsel for Emery and advised me that Swensen had
retained w. Brent Wilcox of Salt Lake City, Utah qS her counsel.
Neither Swensen nor her attorney appeared at the hearing. Jensen
stated that he had received a letter dated June 17, 1983 (Ex. R-2)
from Wilcox advising him that Wilcox represented Swensen and requesting Emery compensate Swensen for five days lost wages. Jensen wrote a
letter to Wilcox dated August 19, 1983 (Ex. R-1) agreeing to pay the
five days of compensation in full settlement of the compensation
claim. Jensen reported that he received a telephone call in the
evening of August 22, 1983, the day prior to the date of the hearing,
advising him that Swensen had agreed to accept the proposal set forth
in Jensen's letter of August 19.
At the hearing, in view of the fact that neither attorney had
entered a prior appearance in the record in this case, nor was Swensen
present in the courtroom to confirm the agreement, I continued the
matter and advised the parties to submit a settlement agreement for my
approval.
On September 14, 1983, I received a joint motion by the parties
for an order of dismissal with prejudice of this case supported by a
release and settlement agreement dated August 31, 1983. The settlement amount is in the sum of $469.84.

WHEREFORE, for the reasons herein before given it is ordered:
(A) The parties settlement agreement is approved.
(B) The complaint of discrimination in this case is hereby dismisse
with prejudice.

Administrative Law Judge
Distribution:
Ms. Patricia Swensen, (Certified Mail), P.O. Box 459, Moroni, Utah
James T. Jensen, Esq., (Certified Mail), 190 North Carbon Avenue
Price, Utah 84501
W. Brent Wilcox, Esq., (Certified Mail), 500 Kearns Building, 136 S. Main
Salt Lake City, Utah 84101

/blc

1837

8464

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

SEP 2° \9\B

CIVIL PENALTY PROCEEDING

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

:

Docket No. WEST 82-117-M
A.C. No. 42-01150-05018

v.
Lucky Strike Mine
PLATEAU RESOURCES LIMITED,
Respondent
DECISION
Appearances:

Phyllis Caldwell, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
James A. Holtkamp, Esq., Van Cott, Bagley
Cornwall & McCarthy, Salt Lake City, Utah, for
Respondent.

Before:

Judge Kennedy

The operator having failed to renew its contest of the
penalties proposed for the two noise violations cited in
the captioned matter as provided in the Order of March 28,
1983, it is ORDERED that said notice of contest be, and
hereby is DISMISSED with prejudice and that the operator
pay the amount of the penalties pro sed, $144.00, on or
before Friday, October 14, 1983.

Joseph B. Kennedy
Administrative Law
Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Bldg., 1961 Stout Street, Denver,
CO 80294
(Certified Mail)
James A. Holtkamp, Esq., Van Cott, Bagley, Cornwall & McCarthy,
Suite 1600, 50 South Main St., Salt Lake City, UT 84144
(Certified Mail)

ejp

1 ~ ., 0·~

..i;,.)

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

20006

September 28, 1983

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-79-M
A.C. No. 02-02126-05501

v.
Portable Crusher No. 1
ASPHALT MINING & CONCRETE
COMPANY,
DENIAL OF MOTION TO DISMISS
ORDER TO SUBMIT INFORMATION
In a Motion to Dismiss filed on September 12, 1983, the
Solicitor advises that subsequent to filing his penalty
petition Respondent paid the full amount of the proposed
assessment for the six citations involved in this matter.
The proposed assessments were $20 apiece for a total of
$120.
The Solicitor's motion to dismiss represents that this
is a small mine with no prior history. The Solicitor does
not discuss any of the citations individually but rather
represents generally that gravity is estimated as moderate
and that an accident could have occurred resulting in an
injury causing lost work days or a disablement.
In addition,
negligence is generally estimated as moderate and the
employer should have known of the existence of the violative
condition.
I am unable to approve the motion to dismiss on the
basis of the present record. Although the operator is small
and without a prior history, $20 is in my opinion a nominal
penalty which indicates a lack of gravity.
I have read all
of the citations and on their face I must agree with the
Solicitor that they appear to present the danger of a
moderate to serious accident. Unger such circumstances the
purposes of the Act simply are not effectuated by rubbers tamping the Assessment Office's $20 penalties.

183J

Although the Solicitor does not mention the MSHA penalty
assessment regulations, it appears from the assessment sheet
that all six penalties were assessed pursuant to the socalled ''single penalty assessment" formula.
Section 100.4
nf the regulations of the Mine Safety and Health Administration, 30 C.F.R. § 100.4, provides for the assessment of a
$20 single penalty for a violation MSHA believes is not
reasonably likely to result in a reasonably serious injury
or illness.
This regulation is not binding upon the Commission and indeed, is not even relevant once the Commission's
jurisdiction attaches.
The Act makes very clear tJ:iaj:. __E>~Ilal ty
petitions before the Commission are de novo.
The Commission
itself recently recognized that it iS-not bound by penalty
assessment regulations anopted by the Secretary but rather
that in a proceeding before the Commission the amount of the
penalty to be assessed is a de novo determination based upon
the six statutory criteria specified in section llO(i) of
the Act and the information relevant thereto developed in
the course of the adjudicative proceeding.
Sellersburg
Stone Company, 5 FMSHRC 287 (March 1983). The Solicitor's
motion to dismiss does not give me enough data upon which to
make a reasoned and informed de novo determination of appropriate penalty amounts.
The Solicitor must discuss each
citation separately and not make blanket assertions about
each of the statutory criteria. Moreover, in this instance
even the blanket assertions regarding gravity and negligence
do not support $20 penalties.
In light of the foregoing, it is Ordered that the
Solicitor's motion to dismiss be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine appropriate penalty amounts sufficient to
justify settlement.
Otherwise, this case will be assigned
and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge

/ln

Distribution·:
Marshall P. Salzman, Esq., Office of the Solicitor, U.S.
Department of Labor, 11071 Federal Building, 450 Golden
Gate Avenue - Box 36017, San Francisco, CA 94102
(Certified Mail)
Ms. Theresa Sanders, President, Asphalt Mining and Concrete
Company, P. O. Box 1106, Mesa, AR 85201
(Certified Mail)

1G41

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

September 28, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-93
A.C. No. 45-02150-03502
Section 12 - McKay
Surf ace Mine

PALMER COKING COAL COMPANY,
Respondent

DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion to approve settlement
of the one violation involved in this proceeding for the
original assessment of $20.
I cannot approve the proposed
settlement on the basis of the information submitted to
date.
The citation was issued because the automatic warning
device on a dozer wa~ inoperative.
The Solicitor advises
that the operator is small in size with a small history of
violations.
She further reports that the condition was
abated in good faith and that payment will not impair the
operator's ability to continue in business. However, the
Solicitor provides no information about negligence or
gravity.
She merely refers to the inspector's statement
and the fact that the inspector would testify the hazard
was immediately abated. Abatement is one thing and gravity
is another. A proposed settlement of $20 would appear to
denote a lack of gravity. Based upon the record as it now
stands I could not find a lack of gravity.
I recently approved a settlement motion from this
Regional Solicitor's office, but I had difficulty in doing
so because all the requisite information was not furnished.
My approval was based on my own reading and evaluation of
the citation. See United States Antimony Corp., WEST 83-98-M
(August 29, 1983)-:- Other Regional Solicitor's routinely
provide the necessary information.
I cannot approve the
settlement in this case without an explanation from the
Solicitor regarding negligence and gravity sufficient to
justify the penalty amount she proposes.

1

,., .,
~

I

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. _.

..1: .. ....,,,

Accordingly, the settlement motion is Denied and the
Solicitor is Ordered to submit the necessary information
within 30 days from the date of this order. If the information is not forthcoming. the cas~ will be assiqned for
hearing.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Faye von Wrangel, Esq., Office of the Solicitor, u. S.
Department of Labor, 8003 Federal Office Building, Seattle,
WA 98174
(Certified Mail)
Mr. Carl G. Folk, Manager, Palmer Coking Coal Company,
31407 - 3rd Avenue, Black Diamond, WA 98010
(Certified
Mail)

/ln

164J

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

September 28, 1983

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-111-M
A.C. No. 35-00540-05501

v.
Ross Island Plant
ROSS ISLAND SAND & GRAVEL
COMPANY,
Respondent
DENIAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion to approve settlement
for the two violations involved in this matter.
The proposed settlements are for $20 apiece.
The Solicitor advises that the operator is small, has
no prior history, abatement was in good faith, and payment
of proposed penalties will not affect the ability to continue
in business.
However, the Solicitor does not furnish
sufficient information with respect to gravity and negligence.
She merely attaches the citations. One violation involved a
work deck area littered with wood and other debris and the
second violation involved an unsecured acetylene bottle
located in the welding area.
The inspector said nothing
about gravity or negligence and neither does the Solicitor.
There is therefore, insufficient basis for me to determinP.
whether $20 penalties are appropriate.
In discussing the operator's prior history the Solicitor
states that this is a single penalty assessment situation.
The fact that the Mine Safety and Health Administration
treated these violations as "single penalty assessments"
under section 100.4 of its regulations. 30 C.F.R. § 100.4,
is not binding upon this Commission.
Indeed, the single
penalty assessment regulation is not even relevant in these
proceedings.
The Act makes very clear that penalty proceedings before the Commission are de novo. The Commission
itself recently recognized that it is not bound by penalty
assessment regulations adopted by the Secretary but rather

l .n.~ "l ,1
.

:A.

that in a proceeding before the Commission the amount of the
penalty to be assessed is a de novo determination based upon
the six statutory criteria specified in section 1'10 (i) of
the Act and the information relevant thereto developed in
the course of the adjudicative proceeding.
Sellersburg
Stone Company, 5 FMSHRC 287 (March 1983).
Indeed, if this
were not so, the Commission would be nothing but a rubber
stamp for the Secretary.
Regardless of the Secretary's
regulations once this Commission's jurisdiction attaches we
have our own statutory responsibility to fulfill and discharge.
This can only be done on the basis of an adequate record.
~he Solicitor has fur~ished information regarding four of
the six statutory criteria.
She must furnish information
regarding the remaining two which are negljgence and gravity.
In light of the foregoing, it is Ordered that the
Solicitor's motion for settlement be Denied.
It is further Ordered that within 30 days from the date
of this order the Solicitor file information adequate for me
to determine whether the proposed penalties are justified
and settlement warranted.
Otherwise this case will be
assigned and set down for hearing on the merits.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Rochelle Kleinberg, Esq. i Office of the Solicitor, U. s.
Department of Labor, 8003 Federal Office Building, Seattle,
WA 98174
(Certified Mail)
1

Mr. R. G. Tuttle, Corporate Director, Ross Island Sand &
Gravel Company, 4315 South East McLaughlin Blvd., P. 0. Box
02219, Portland, OR 97202
(Certified Mail)

/ln

1645

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

SEP 291911

Civil Penalty Proceeding

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

Docket No: WEST 82-31-M
A/O No:
42-01660-05002

v.

Ore Haulage Plant

KENNECOTT MINERALS COMPANY,
Respondent
DECISION
Appearances:

James Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, 911 Walnut Street,
Kansas City, Missouri, 64106, for the Petitioner;
Mr. Vaughan Baird, Kennecott, Utah Copper
Division, Magna, Utah 84044, for the Respondent

Before:

Judge Moore

At the outset of the hearing, attorney Kent Winterholler
announced that he had been instructed by the client not to
represent it in these proceedings. He said that Mr. Vaughan
Baird would represent Kennecott.
I approved the withdrawal of
counsel and the substitution of Mr. Baird. At the time I did
not realize that Mr. Baird was not an attorney but in any
event he gave his client adequate representation.
Government counsel then announced that with respect to
Citation No: 0579407 the government had agreed to modify the
citation so as to eliminate the "significant and substantial"
finding and Kennecott had agreed to withdraw its notice of contest.
When I asked the amount of the agreed penalty, I was told that they
had not discussed any penalty. Mr. Baird expressed the belief
that there was a standard penalty for a non-S&S violation. He
also expressed his belief that the violation would not count as
prior history if it was not S&S. I explained to the parties
that the Commission and its judges are not bound by Part 100 of
30 C.F.R. MSHA is of course, bound by its own regulations and
if a citation is not marked as "significant and substantial",
and if it is abated in the time set by the inspector it would
be considered a single penalty and the assessment would be $20.
If the $20 is paid in a timely manner it will not be counted as
a part of the respondent's previous history of violation.
Once the notice of contest is filed, however, the rules change.
The Commission and its judges are then bound to assess a civil

n /4 ·
l ~.) u
jj;

penalty in accordance with the six statutory criteria if a
violation is proved or admitted. 30 C.F.R. §100.4 does not
take all of the criteria into consideration and a number of
the Commission judges have refused to be guided by that section.
Mr. Baird then agreed to pay the proposed penalty of $106.
I accepted that agreement.
Citation No: 579403 initially alleged a violation of
30 C.F.R. 55.9-2. At the trial, it was amended, without objection, to alternatively allege a violation of 30 C.F.R. 55.16-14(a).
The subject of the citation is an overhead crane referred
to by the witnesses as a bridge crane. The crane is used in a
metal building where respondent builds and repairs ore cars.
The building is 400 feet in length and 50 feet in width. The
crane runs on rails placed near the ceiling that are 40 feet
apart and run nearly the length of the building. The operator
of the crane sits in a cab halfway between the two long rails
and moves with the crane as it travels east or west along the
400 foot distance. The operator does not move with the lifting
device as it is moved towards one or the other of the two rails.
The rails run east and west and the crane can move something
from almost anywhere in the building to almost anywhere else.
The crane lifts ore cars and parts of ore cars or material
for use in their repair.
30 C.F.R. 55.9-2 appears under the
heading "Loading, hauling, dumping." I need not decide whether
the operation of this overhead bridge crane constitutes loading,
hauling or dumping, because of the amendment to allege a violation of 30 C.F.R. 55.16-14(a). The latter standard requires:
"operator-carrying overhead cranes shall be
provided with:
(a)

Bumpers at each end of the rail.;"

The rails supporting this bridge crane did have bumpers at
the ends but they were not placed properly and the crane could
come in contact with the wall of the building if the wheels
went all the way to the bumpers. The inspector measured the
distance between the extension of the cab and the wall as
2". The distance between the wheels and the bumpers was 24".
The bumper blocks had once been in a safe position but
the cab of the crane was modified in such a way as to make it
bigger than it had been and thus necessitate moving the bumper blocks
away from the wall, and this had not been done after the
modification. There is some question as to when the modification
was completed, but the admittedly hearsay evidence given by the
inspector is more persuasive than the direct but unprecise evidence given on behalf of the company. The inspector was told that the

modification had been completed for 30 days and that a complaint
had been filed with management concerning the lack of proper bumpers.
Mr. Strong, a supervisor of crane operators, realized that the
crane could hit the wall but did not think it would go through.
He made no measurements. He thought that 3 or 4 days before the
inspectors came in, he had sent in the order to move the bumpers.
He does not think that the modification had been completed for 30
days.
He said the mechanics showed up on July 22 at 8:00 A.M.
to make measurements in preparation for moving the bumpers.
It was the same day that Inspector Palmer had shown up. He
could not say, however, exactly when he piaced the order nor did
the company atte:{tlpt to produce any records or any other witnesses
to show when the work had been completed on the cab and when the
order had been placed to move the blocks.
The portion of the cab which would have come in contact with
the wall contained electrical circuits connected with the control
of the bridge crane. As stated earlier Inspector Palmer took
measurements which indicated that this portion of the cab would
have gone through the metal walls if the wheels had come in contact with the bumper blocks.
Safety Engineer Klobchar took
measurements after the blocks had been moved which showed that
the addition to the cab would have penetrated the wall only 1-1/2".
His measurements were made after the blocks had been moved.
Measuring from the old holes to the new holes, and measuring
the distance between the wall and the cab with the wheels up
against the newly located blocks and subtracting, was his method
of determining how far the extension of the cab would penetrate
the wall. The method he used assumes that the same blocks were
used with the holes in the same place and that no changes in
configuration of the blocks were made. There is no testimony
to support these assumptions. The witnesses did refer to
moving the blocks, but it could just as easily have meant moving
the location of the blocks with different blocks being installed.
I credit the inspector's method of measurement.
Furthermore, I think it was incumbent upon management
knowing, as several witnesses knew, that the extension would hit
the wall, to measure and find out beforehand, how much of a
hazard was involved.
Instead, they just told the crane operator
to be careful and move slowly as she approached the blocks.
There were people working on the floor of the building and
under the objects being moved by the crane.
Inasmuch as the
portion of the cab that would have contacted the wall contained
electrical circuits which control the operation of the crane,
contact with the wall, whether it went 1-1/2" into the wall or
through the wall, could have caused the operator to lose control
and perhaps drop whatever load was being carried.
I consider
it a serious hazard.

Kennecott is a large operation but it is in serious
financial condition. Its owner, however, SOHIO is financially
sound. There was good faith abatement and a moderate history
of prior violations.
If I were absolutely sure that the
modifications had been completed 30 days before the inspection,
I would find gross negligence. No one from management
testified that the order to move the blocks was placed when
the modification was completed. The blocks should have been
moved before the modification was completed, so that there
would have been no overlap in operating the modified crane
and having the blocks in a safe position.
I find a fairly
high degree of negligence but not gross negligence. The
citation is AFFIRMED.
A penalty of $300 is assessed.
Respondent is accordingly ORDERED to pay to MSHA, within
30 days, a civil penalty in the total amount of $406.

~ (1. 9J?~rfl·

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

Mr. Vaughan Baird, Kennecott, Utah Copper Division, Magna,
Utah, 84044 (Certified Mail)

James Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 911 Walnut Street, Kansas City, Missouri, 84044
(Certified Mail)

/db

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 CMSHA),
on behalf of
SHELBY EPERSON,
Complainant

v.
JOLENE, INC. ,
Respondent

.
.

.
.
...

SiP308

DISCRIMINATION PROCEEDINGS
Docket No. KENT 83-38-D
Jolene No. 1 Mine

.
DECISION

Appearances:

Darryl A. Stewart, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Complainant;
Bernard Pafunda, Esq., Deskins and Pafunda,
Pikeville, Kentucky, for Respondent.

Before:

Judge Melick

This case is before me upon the complaint of the Secretary
of Labor, on behalf of Shelby Eperson under section 105(c)(2) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seg., the "Act", alleging that Jolene, Inc., (Jolene) discharged Mr. Eperson on September 4,_1982, in violation of section
lOSCc)(l) of the Act.I Evidentiary hearings were held on the
complaint in Prestonsburg, Kentucky.

!section lOSCc>Cl> of the Act provides in part as follows:
No person shall discharge *** or cause to be
discharged or otherwise interfere with the exercise of the statutory rights of any miner *** in
any *** mine subject to this Act because such miner *** has filed or made a complaint under or
related to this Act, including a complaint notifying the operator or the operator's agent *** of an
alleged danger or health violation in a *** mine
*** or because of the exercise by such miner ***
on behalf of himself or others of any statutory
right afforded by this Act.

In order for the Complainant to establish a prima facie violation of section 105(c)(l) of the Act, he must prove by a preponderance of the evidence that Mr. Eperson engaged in an activity
protected by that section and that the discharge of him was motivated in any part by that protected activity. Secretary ex rel.
David Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 (1980),
rev'd on other grounds sub nom, Consolidation Coal Company v.
Secretary, 663 F.2d 1211 (3rd. Cir. 1981). See also NLRB v. Transportation Management Corp.,~~ U.S.~~' 76 L. Ed. 2d 667, 103
s. Ct.
(1983), affirming burden of proof allocations similar
to those in the Pasula case.
In this case, Mr. Eperson asserts that he refused to work at
the Jolene No. 1 Mine on the morning of September 4, 1982, because the supervisory official who was expected to perform the
required preshift safety examination and to direct the work of
the miners appeared that morning in an intoxicated condition.
Eperson alleges that it would have been unsafe to have relied
upon a person in such condition to properly perform the preshift
examination and to work with, and under the direction of, a man
in such condition. A miner's exercise of the right to refuse
work is a protected activity under the Act so long as the miner
entertains a good faith, reasonable belief that to work under the
conditions presented would be hazardous. Robinette v. United
Castle Coal Company, 3 FMSHRC 803 (1981).
The operator does not dispute that a refusal to work for an
intoxicated supervisor may be a protected activity but argues
that since Shelby Eperson himself was supposed to be the foreman
in charge on September 4th and indeed was the only certified foreman present, it was Eperson's responsibility to preshift the mine
and to direct the work force that day. Eperson's failure to do
so and his encouragement by example to other miners to leave the
job that day was, according to the operator, non-protected grounds
for discharge. There is accordingly no dispute that Eperson was
discharged for his refusal to work on September 4th. The limited
question before me is whether that work refusal was protected
under section 105(c)(l) of the Act. Resolution of this issue
depends on whether Eperson was responsible for preshif ting the
mine and was in charge of the workforce on the morning of September 4th.
If Eperson indeed had those responsibilities, then his
refusal to work that morning was not protected.
If, on the other
hand, an individual named Steve Bridgeman had those responsibilities, as it is alleged by the Complainant, and Bridgeman was in
fact unab~e to safely fulfill those responsibilities because of
intoxication and fatigue, then Eperson's work refusal may very
well have been protected under the Act.
Shelby Eperson was initially hired by Jolene president Theodore Parker in June 1982 to be foreman for a new second shift at

1S51

the No. 1 Mine. Eperson then possessed state certification papers qualifying him to be employed as a foreman and/or electrician. The second shift was cancelled after a few weeks, however,
for lack of work and Eperson was moved to the first shift but not
as a foreman. According to Eperson, he then took orders from
Steve Bridgeman who was acting as section foreman, though without
state certification, and from mine superintendent James Comer.
Eperson never performed any preshift examinations on the first
shift and was never specifically asked to do so. This function
was performed by Comer and/or Bridgeman. Moreover, although Jolene's president, Theodore Parker, claims that he once told Eperson that he would be in charge in Comer's absence, until September 4, ·1982, Comer had never been absent and Eperson had in fact
never acted as foreman on the first shift.
According to Eperson, on Friday, September 3, 1982, mine
superintendent Comer told the work crew that he would be absent
the next day.
Bridgeman then purportedly told the crew they would
start work the next day at 6:00 a.m.2 Eperson reported to the
mine office at 5:45 the next morning.
By 6:00 a.m., seven or eight
men had arrived and were ready for work but the purported section
foreman, Steve Bridgeman, had not shown up. A miner named Duffy
apparently expressed doubts that Bridgeman and another miner, Chris
Kukle, would show up at all. They had been drinking the night before and were so intoxicated, they had fallen off Duffy's porch as
they left around 4:00 that morning.3 Some time after 6:00 a.m.,
one of the miners called Bridgeman, who reportedly said that he
would show up later. Bridgeman still did not show up so at least
six of the waiting miners then left, including Duffy, Cecil, Kukle,
the belt drive man, and the shot fireman.
By 7:10 a.m., Bridgeman
had still not arrived so Eperson and the remaining miners also prepared to leave. Eperson had already removed his work clothes when
Bridgeman finally arrived, followed by some of the other miners.

2rn his statement dated September 29, 1982 (Complainant's Ex. No.
6), Jolene's witness, Dana Boyd, confirms that the miners were to
begin work at 6:00 a.m.
I find that the work was indeed to commence at that time.
3Bridgeman admits that he had been out drinking beer until early in
the morning, that he could not remember how many beers he had had,
and that he did in fact stumble on Duffy's porch. He showed up
late for work because he "overslept". He concedes, moreover, that
"he just half remembers what happened the next day." Under the
circumstances, I find that Bridgeman was indeed under the influence
of alcohol on the morning of September 4th and that Eperson's perceptions of Bridgeman's condition and the events that morning are
entitled to the greater weight.

Eperson detected alcohol on Bridgeman's breath and saw that
he had bloodshot eyes. He suggested to Bridgeman that he should
not take the men into the mine in his condition and told him that
if anyone got hurt working for him in that condition, somebody
would go to jail. Eperson then refused to work, explaining to
Dana Boyd that the mine had not been preshifted and he was afraid
for the men's safety with Bridgeman in his apparently intoxicated
condition. The remaining miners also refused to work for Bridgeman but Bridgeman nevertheless proceeded to order Eperson to operate the "G.D." loader. Eperson persisted in his refusal to work
and during a heated exchange that followed, Bridgeman told Eperson that he did not like him, citing an incident a few weeks before in which Eperson had complained about Bridgeman's improper
spacing of roof bolts.
Bridgeman testified that shortly after the men began leaving, he got a telephone call from Comer. He told Comer that "they
were refusing to work with me because they said I was drunk. 11 4
Comer, without speaking to Eperson, then told Bridgeman to send
the men home.
Bridgeman, too, then left the mine site and went
to see Parker to explain why the men were not working that dax.
5 k-\>.11.< (Su... 10/b/a-} eo~.\-; ..ie.- Dnl c«<" J
On the following day, Sunday, -~brttaty 5, Eperson went fo
Parker's houseboat to pick up his paycheck. Parker was absent,
but Comer gave him his check and told him that Parker was letting
him go "due to the cutbacks." According ·to Eperson, there had in
fact been no cutbacks at the mine and, shortly after he was discharged, another certified electrician was hired to replace him.
According to Jolene President Parker, Eperson was fired because on Saturday, September 4th, he failed to preshift the mine
and took the.men off the job. Parker claims that he had planned
in any event to discharge Eperson the following Tuesday because
of an alleged 25 percent cut back in coal demand and that Eperson' s acts only accelerated that decision.5 Parker maintains
that Eperson had been told when he was first transferred to the

4rt may reasonably be inferred from this admission that the other
miners were also refusing to work for Bridgeman because they also
thought he was too intoxicated. This evidence further demonstrates
that Eperson's work refusal on these grounds was shared by the other miners and was accordingly reasonable and made in good faith.
Robinette, supra.
5This allegation is far from credible. Eperson was the only certified electrician at the mine and without him, important electrical
repairs and inspections could not legally be made. The record
shows, moreover, that another certified electrician was hired by
Jolene within the month and that in fact there was no production
cutback.

1G53

day shift that he would be the substitute foreman in Comer's absence and that, accordingly, when Comer was absent on September
4th, Eperson should have conducted the preshift inspection and
taken the miners underground.
In spite of this, Comer acknowledged that he did not place Eperson in charge on September 4th.
Respondent also suggests that Steve Bridgeman could not legally
have performed these functions because he was not then a certified foreman and asserts that Parker, Comer, and Bridgeman, as
well as miners Dana Boyd and Bobby Dotson, all denied that Bridgeman was a foreman.
I find from the credible evidence, however, that Bridgeman
in fact had been regularly acting as a foreman and had been regularly performing the preshift and on-shift examinations at the
Jolene No. 1 mine even though he was not certified as a foreman
and was not therefore legally authorized to do so.
Significantly, entries were made by Bridgeman in the preshift and on-shift report books for periods before September 4th
and were signed by Bridgeman as "Preshift Mine Examiner", "Assistant Foreman", and "Assistant Mine Foreman". MSHA senior special
investigator Charles Webb observed that only Bridgeman's signature appeared on the left hand pages when he first examined the
preshift books on September 8, 1982, Cthus indicating that Bridgeman alone had been conducting the foreman's job of preshifting
the mine) and that superintendent Comer's signature had been subsequently added to the books as presented at hearing.
I find the
disinterested testimony of Webb to be especially worthy of reliance and conclude that indeed in many instances the mine superintendent had co-signed the preshift/on-shift books long after the
inspections had been performed by Bridgeman to cover up the fact
that Bridgeman in fact had been regularly performing the functions of a foreman.
It is also observed that, unlike non-management personnel at
the mine, Bridgeman was paid a fixed salary with no extra pay for
overtime work.
In addition, it is significant that when Bridgeman finally showed up for work on the morning of September 4th,
the men who had previously left the job site presumably because
of his absence turned around and came back to the mine with him,
obviously looking to him as the person in charge. One of Respondent's witnesses, Dana Boyd, also referred to Bridgeman as "the
boss" and observed that Bridgeman had indeed on prior occasions
preshifted the mine himself (Complainant's Ex. No. 6). Boyd also
stated that when mine superintendent Comer called on the morning
of September 4th questioning whether the men were going to work
that day, he asked to speak to Bridgeman and not Eperson.
In
addition, it was Bridgeman and not Eperson who later that day
went to Jolene President Parker to explain why the men had not
worked that morning. Finally, Comer himself conceded that he did
not direct Eperson to act as foreman on the day he refused to
work.

1 ('.. ) ;J•: l:

Under the circumstances, it may reasonably be inferred that
Bridgeman in fact had been regularly acting as a foreman prior to
September 4 and in that capacity was regularly performing the preshift examinations.
It may also be inferred, just as alleged by
the Complainant, that Bridgeman and not Eperson was expected to
perform the preshift inspection and to direct the miners as the
supervisor in charge on September 4th. The self serving denials
of this fact in the face of the convincing evidence to the contrary, lead me to conclude that the testimony of Respondent's
witnesses (Parker, Comer, Bridgeman, Dotson, and Boyd) is less
than credible not only with respect to this issue but also in all
essential respects.
The significant contradictions between the
testimony of Jolene witness Dana Boyd and the admissions he made
in his September 1982 statement to MSHA investigators very well
illustrates the lack of credibility of these witnesses.
It may
reasonably be inferred that Boyd altered his testimony because of
legitimate concerns for retaining his job with Jolene.
Under the circumstances, I find the Complainant's allegations entirely credible and I find that Mr. Eperson did indeed
entertain a bona fide reasonable belief that Bridgeman was in
charge of the work force on September 4th, that Bridgeman's functional capacities were then sufficiently diminished by alcohol
and fatigue so that it would have been hazardous for the miners
to have relied upon a preshift examination performed by him that
day and that it would have been hazardous to have worked underground under his supervision. Robinette, supra.; supra, footnotes 3 and 4. Moreover, since Eperson admittedly told Bridgeman
Cwho I have found was the acting foreman that day> of his belief
in the safety hazard at issue and since this information was admittedly further communicated to Mine Superintendent Comer, the
"communication" requirement stated in Secretary ex rel. Dunmire
and Estle v.,Northern Coal Company, 4 FMSHRC 126 (1982), has
clearly been met. Accordingly, I find that the Complainant has
met his burden of proving that his discharge was motivated by a
work refusal that was protected under the Act.
DAMAGES AND COSTS
It was stipulated at hearing that Mr. Eperson has already
received the appropriate wages for the period November 19, 1982,
through January 25, 1983, pursuant to an Order of Temporary Reinstatement. On January 25, 1983, Jolene ceased to operate the No.
1 Mine in Johnson County and moved to a new location with the
same equipment and four miners (but not Eperson) to develop a new
mine. Production of coal began on May 1, 1983, and at the tim~
of hearing, fourteen miners (but not Eperson) were employed at
the new mine. At hearing, Jolene agreed, pursuant to the Order

1G55

of Temporary Reinstatement, to again reinstate Mr. Eperson effective May 19, 1983, and to pay him $1,000 toward prior lost wages.
Damages for back wag~s ust therefore be computed for the periods, September 6, 19 , through November 18, 1982, and January
26, 1983, through May 18, 1983.
" 1 10 / / )
9'~(5~~ ~~~-h-~ Oc~<Q(""' ~ tfo n
Since it has also been stipulated that Mr. Eperson had been,
prior to his discharge, working 40 hours per week at $13 per hour,
and 14 hours per week at $19.50 per hour, his weekly gross wages
during this· period would have been $793.
It is reasonable to infer
from the type of work performed in setting up electrical equipment
in the new mine that Eperson would have continued to work during
the development of the mine as the only certified electrician previously employed by Jolene, and that his wages would ac<::Qr_dl,ngly have
continued at the same rate for the period January 26, 1983, through
May 1, 1983,, when coal production bega. n.
He is ?~ourse also enth- io/1,!
tled to continuing wages from May 1 through May )'8 /3f983, the day
Q..
/tJ
before his second reinstatement by Jolene. Accordingly, based on Q~:~±;~
the information stipulated at hearing (and not upon unverified
statements in the Secretary's brief), I find that Eperson is due
gross back wages for 26 1/2 weeks of $21,014.50, less $1,000 already paid by Jolene and $810 earned from interim part time employment. Mr. Eperson is also entitled to interest on the back wages
computed at the rate of 12 percent per annum from the date such
wages would ordinarily have been paid to the date those wages are
actually paid. Jolene does not dispute that Mr. Eperson is also
entitled to $20 in expenses.
ORDER
Jolene, Inc. is hereby ordered: Cl) if it has not already
done so, to immediately reinstate Shelby Eperson to the same (or
comparable) position he held at the time of his discharge on September 4, 1983; (2) to pay Shelby Eperson back wages of $21,014.50;
(3) to pay interest on the said back wages to be computed at the
rate of 12 percent per annum from the date these amounts were due
to the date actually paid; and (4) to pay Mr. Eperson's expenses
of $20. Prepaid back wages of $1,000 and $810 Eperson earned in
alternative employment may be deducted from the total amount to

1 (",,; ~) u
~- ~"

be paid.
It is further ORDERED that th Secretary of Labor commence review of this case for considera 'on of assessment of civil
penalties against Jolene, Inc.6

Distribution (by certified mail)
Bernard Pafunda, Esq., Deskins an Pafunda, 105 1/2 Division Street,
P.O. Box 799, Pikeville, KY 41501
Darryl A. Stewart, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203
Thomas Mascolino, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
nw

6I cannot at this time accept the amount of civil penalty profferred as settlement at hearing.
Information necessary for review of
the proposal under section llO(i) of the Act is not before me.
In
particular, before any such proposal can be considered, information
concerning the operator's good faith abatement of the violation
found in this case must be developed, including information about
Mr. Eperson's reinstatement and the payment of amounts ordered due
in this case.
In any event, if the operator herein agrees to waive
the Secretary's procedures under 30 CFR Part 100 as it appears it
does, then the Secretary should file a separate Civil Penalty Proceeding with the Commission.

1657

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),
Petitioner

v.
AMERICAN MINE SERVICES, INC.,
Respondent

September 30, 1983

CIVIL PENALTY PROCEEDING

.
..
.
.
.

Docket No. WEST 82-1-M
MSHA Case No. 42-01689-05003 X02
LaSal No. 2 Mine

DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
United States Department of Labor, Denver,
Colorado,
for Petitioner;
Mr. Morris E. Friberg, Pro Se, American Mine
Services, Inc., Denver, Colorado
Respondent.

Before:

Judge Carlson

This civil penalty proceeding arises out of an inspection of
American Mine Services, Inc.'s (AMS) LaSal No. 2 Mine by one of
the Secretary's representatives. The Secretary charges AMS with
the violation of two mandatory safety regulations promulgated
under the Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq. (the "Act"). After notice to the parties a hearing was held
on July 27, 1983, in Denver, Colorado. Both parties waived
post-hearing briefs in favor of oral arguments presented at the
close of the hearing.
During the hearing the parties agreed to the settlement of
citation No. 584206 as follows:
AMS would withdraw its notice of
contest and pay the proposed penalty of $24 and the Secretary
would amend citation No. 584206 to reflect that the violation was
not significant and substantial. Because citation No. 584206
concerns a rather minor violation, one unlikely to result in
serious injury, the settlment was accepted and approved at trial.
That approval is reaffirmed here.

1 (':.; Ju:
~-

The only rema~ning citation is No. 583964 which alleges a
violation of mandatory safety standard 30 C.F.R. § 57.12-65.~/
Issues
The issues are:
(1) Did AMS violate the cited standard, and, if so, was the
violation significant and substantial?
(2) If a violation occurred, what is the appropriate civil
penalty?
Stipulations
At the outset of the hearing the parties
following stipulations:

enter~d

into the

1. AMS was the operator of the LaSal No. 2 mine at the time
these citations were issued.
2. The operations and products of the LaSal No. 2 Mine affect
commerce.
3. At the time of the citations the LaSal No. 2 mine was
under development and there were approximately four underground
employees (three scheduled and occasionally others) and three
surface employees.
4.

AMS has no record of prior violations.

5. Payment of the proposed penalty will not affect the
ability of AMS to remain in business.
Background Facts
Little dispute exists as to the essential facts surrounding
the alleged violation.
Respondent's LaSal No. 2 mine is supplied
with electricity by Utah Power & Light (Utah). Utah's transmission lines carry 13,200 volts. This transmission line terminates
at AMS's transformer which steps down the current to 480 volts.
Beyond the transformer, AMS's own lines take over to bring the 480
volt current into the mine. Utah had provided their primary lines
with lightning arrestors.
The secondary system provided by AMS was
an above-ground cable of approximately 500 feet in length, suspended

1/ § 57.12-65 Mandatory. Powerlines, including trolley wires,
and telephone circuits shall be protected against short circuits
and lightning.

1G5J

from poles.
It consisted of three power conductors spun around a
steel messenger cable that was grounded at five poles. The three
power conductors were encased in insulation rated to 600 volts,
but were not connected to this grounding network. All of AMS's
electrical equipment i.s frame grounded. The secondary system was
not provided with lightning arrestors or a static line. The
primary lines are located on higher ground than the secondary
lines.
Discussion
The thrust of the Secretary's case is that AMS's secondary
transmission line lacks adequate protection from lightning strikes
and therefore violates 30 C.F.R. § 57.12-65. Section 57.12-65
requires powerlines to "be protected against ••• lightning." MSHA
inspector Hunt, who has more than three years experience as an
electrical inspector and forty five years experience (1S_9-n._
electrician, maintained that the miners in the shop and office
areas were endangered because AMS's line lacked either lightning
arrestors or a static line.
Lightning arrestors are circuit
disrupters which are designed to accept a lightning discharge and
bleed off the charge to a grounding system.
After the lightning
charge is bled otf, the arrestor restores itself to normal
operation and allows the transfer of power through the cable. A
static line is a bare conductor hung some distance above a
transmission line and provided with grounding wires. such a line
operates to draw the lightning charge and dissipate it down
through one of the grounding lines.
In the opinion of the
inspector, the absence of these devices, or some functionally
similar system, meant that adequate lightning protection was not
being provided.
In response, AMS insists that it provided adequate lightning
protection by a variety of means, notwithstanding the absence of
lightning arrestors or a static line.
section 57.12-65 does not define the type or degree of
lightning protection which is required. The Commission has
consistently recognized the Secretary's wide latitude in
promulgating broad or simple regulations in order to cover a large
range of situations. E.g., United States Steel Co., 5 FMSHRC 3,5
(1983); Alabama By-Prodllcts Corp., 4 FMSHRC 2128, 2130 (1982);
Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (1981).
Where the standard does not specify the type of protection
required, the adequacy of the protection is measured against the
objective reasonable prudent person standard. United States Steel
Corp., 5 FMSHRC at 5. The question thus becomes whether a reasonably prudent person "familiar with all the facts, including those
peculiar to the mining industry" would find the lightning
protection to be adequate in the "context of the preventive
purpose of the statute." Id.

AMS places much emphasis on the fact that Utah provides a
static line and lightning arrestors on their primary transmission
line. AMS reasons that since Utah's primary line had a higher
elevation it would be hit before the secondary line and would
dissipate the lightning charge before it reached the secondary
line.
Inspector Hunt, however, testified that the protection on the
primary circuit offers only partial protection for the secondary
circuitry because there is a significant chance that the lightning
would strike the 500-foot-long secondary line where the Utah's
arrestors and static line provided no protection.
AMS's expert, John Vickery, also has extensive electrical
experience. Vickery has a degree in electrical engineering, is
senior electrical engineer for AMS, and has nearly forty years
experience in the field.
Vickery's own testimony corroborates
Hunt's concern that lightning could directly strike the secondary
line. Vickery said that lightning "diverts from patterns from
time to time, and you're never sure when it happens" (Tr. at 162).
Vickery also stated that:
[T]he [secondary] line was not supposed to go up over the
brow of the hill as it did later.
It was to stay down on the
level more, and when I realized he had put it up that
way, it occurred to me that that high spot might be a potential spot for lightning to strike. (Tr. at 162)(Emphasis
added).
Hunt gave uncontradicted testimony that lightning strikes can
reach 200,000 volts (Tr. at 40, 77).
Hunt also testified that a strike on the primary line could
surge past the transformer onto the secondary line.
He maintained
that Utah's static line might not be able to bleed off all of the
current from a powerful lightning surge before it traveled to the
secondary. His chief concern, however, was the potential for the
lightning to hit the secondary circuitry, rendering protection on
the primary circuitry valueless.
AMS insists that further protection for its secondary
circuitry is provided by the messenger wire on the triple cable.
Vickery felt that if lightning hit the secondary circuitry it
would be dissipated by the messenger cable to the grounding poles
and would not flow along the power conductors.
Inspector Hunt did not agree.
In his opinion lightning could
strike the power conductors directly and burn through the neoprene

f\f'• .·

1 ':.HJ j_

insulation which is only rated to 600 volts.
Enormous current would
then travel on the ungrounded power conductors. Even if the
lightning did strike the messenger cable, he believed there is a
real possibility that the 200,000 volt current from the strike would
travel from the messenger cable to the phase conductors after
burning the insulation. Finally, assuming that the current only
flowed on the messenger cable, electrocution could still result to
miners working with or near electrical equipment. The messenger is
grounded by five poles, each of which can only dissipate a finite
amount of charge and might not bleed off the entire charge generated
by a heavy lightning strike. Therefore, according to Hunt, the
messenger cable provides insufficient protection.
I find the testimony of both Mr. Vickery and Inspector Hunt to
be credible.
Both men were knowledgeable in the field and helpful
in understanding the technical issues.
I especially appreciate Mr.
Vickery's candor on cross-examination. He did not dispute the fact
that lightning's behavior may be unpredictable.
Taken as a whole, the evidence presented by AMS convinces me
that its existing system of protection significantly lessened the
danger that a lightning strike in the area would kill or injure a
miner.
I accept, for example, the argument that a discharge would
be more likely to strike Utah's primary line on high ground than
AMS's secondary line.
I further accept the possibility that strikes
of less than maximum voltage could be safely conducted away by the
bare messenger line or the frame grounding on the electrical
equipment in the shop.
Inspector Hunt made no serious effort to
prove otherwise.
Nevertheless, I must conclude that the inspector is correct
when he insists that a heavy strike on the AMS line was possible,
and that such a strike would carry with it a real potential for
injury or death to miners at the site.
In reaching this conclusion
I find it noteworthy that all three forms of protection which AMS
relied upon do not have lightning protection on the mine site as
their primary purpose. The purpose of the arrestors and static
lines on Utah's line was to protect its equipment, not mine
employees working near the secondary lines or circuitry, which had
no lightning protection per se (Tr. at 28, 74, 76). The primary
purpose of the messenger wire was to physically support the power
conductors (Tr. at 79)·. The primary purpose of the frame grounding
was to provide fault protection for an ordinary 480 working voltage,
not the heavy surges which could result from lightning.
I am
reluctant to believe that a reasonable and prudent person, having
expertise in electrical phenomena, would regard AMS's measures,
designed as they were for other purposes, as adequate protection for
miners against lightning hazards.
Furthermore, inspector Hunt
effectively showed where each of the systems in place was deficient
to neutralize the hazardous effects of the megavoltages generated by
lightning.

Beyond that, I give weight to inspector Hunt's assertion that
of those mines in the area which had pole~suspended power lines, an
overwhelming majority had arrestors, static lines, or similar
devices designed to deal with lightning (Tr. 210). This gives some
indication that the industry regards such specific protection as
reasonable and prudent. That Utah Power and Light saw fit to use
arrestors and a static line strength~ns this inference.
In summary, I must construe the standard to require either
lightning arrestors, static lines, or some device providing
equivalent protection. Since AMS had none of these, the level of
protection demanded by the standard was not met, and the alleged
violation must be affirmed.
In considering whether the violation was significant and
substantial within the meaning of the Act, I would note again that
the devices in place at the time of inspection afforded some
protection against some lightning strikes.
Nevertheless, I must
conclude that the evidence shows that the level of protection was
such that there was a reasonable likelihood that a lightning strike
on AMS's power line would cause injuries of a reasonably serious
nature to miners working with electrical equipment. Cement
Division, National Gypsum Co., 3 FMSHRC 822 (1981).
Penalty
The Secretary seeks a civil penalty of $87.00. Section llO(i)
of the Act requires the Commission, in penalty assessments, to
consider the size of the operator's business, its negligence, its
ability to continue in business, the gravity of the violation, and
the operator's good faith in seeking rapid compliance. The size of
the mine is small. The parties stipulate that imposition of the
proposed penalty would not affect the operator's ability to continue
in business.
AMS was negligent, but the negligence was in part
attributable to an honest misapprehension of the requirements of the
standard. The gravity of the violation was moderate. A lightning
strike was reasonably possible, but the likelihood was not great.
If one occurred, however, the resulting injury could well be severe.
The number of miners exposed to potential injury, on the other hand,
was small.
The evidence as to good faith abatement is equivocal,
and I make no finding on that element. overall, the facts do not
favor a heavy penalty. The secretary apparently made due allowance
for the mitigating factors, and proposed a low figure.
I conclude
that $87.00 is the appropriate penalty for the violation.

CONCLUSIONS OF LAW
Based upon the entire record and the factual findings made in
tha narrative portions of this decision, the following conclusions
of law are made:
1.

The Commission has

ju~isdiction

to decide this case.

2.
Respondent AMS violated the mandatory standard published at
30 C.F.R. § 57.12~65.
3.

The violation was significant and substantial.

4.

The appropriate civil penalty for the violation is $87.00.
ORDER

Accordingly, it is ORDERED that citation 583964 is affirmed;
and that AMS, within 30 days of this order, shall pay to the
Secretary a civil penalty of $87.00 in connection therewith.
It is further ORDERED that the settlement of citation 584206
made at the hearing is approved; that the violation alleged therein
is affirmed but shall not be classified as significant and substantial; and that AMS, within 30 days of the date of this order,
shall pay to the Secretary a civil penalty of $24.00 in connection
therewith.

/'

#~ /-? ~

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~

A. Carlson
Adm1n1strative Law Judge
Distribution:
James H. Barkley, Esq., (Certified Mail), Office of the Solicitor
United States Department of Labor, 1585 Federal Building
1961 Stout Street, Denver, Colorado 8q294
Mr. Morris E. Friberg, (Certified Mail), American Mine Services,
Inc., 4705 Paris Street, Denver, Colorado 80239

/blc