MAY 1989
COMMISSION DECISIONS AND ORDERS
05-09-89
05-10-89
05-11-89
05-30-89
05-08-89
05-08-89
05-10-89
05-30-89

Florence Mining Company
Rushton Mining Company
Robert Simpson v. Kenta Energy & Roy Dan Jackson
Tennessee Chemical, Inc.
Pennsylvania Electric
A. H. Smith Stone Company
Green River Coal Company
L & L Gravel

PENN 86-29'{-R
PENN 85-253-R
KENT 83-155-D
SE
85-63-M
PENN 88-227
VA
88-44-M
KENT 88-152
CENT 89-2-M

Pg. 747
Pg. 759
Pg. 770
Pg. 783
Pg. 793
Pg. 796
Pg. 800
Pg. 803

ADMINISTRATIVE LAW JUDGE DECISIONS
YORK 88-43-M
WEVA 88-204
CENT 88-63
VA
89-13-M
WEST 88-337-M
LAKE 88-128-M
LAKE 88-91-D
WEVA 88-227-C

Pg. 805
Pg. 810
Pg. 842
Pg. 848
Pg. ·853
Pg. 859
Pg. 875
Pg. 877

VA
89-11-M
KENT 88-178
VA
89-12-D
KENT 88-136
CENT 88-126-D
WEST 88-290
CENT 89-3-DM
LAKE 88-129-M
WEST 89-184-D

Pg. 880
Pg. 882
Pg. 884
Pg. 885
Pg. 887
Pg. 901
Pg. 903
Pg. 904
Pg. 910

05-23-89
05-23-89
05-24-89
05-24-89
05-30-89
05-30-89
05-30-89
05-30-89

Warren E. Manter Company, Inc.
Oneida Coal Company, Inc.
Falkirk Mining Company
A. H. Smith Stone Company
Colorado Silica Sand, Inc.
Ozark-Mahoning Company
Roger L. Stillion v. Quarto Mining Company
Local 1570, Dist. 31, UMWA v. Eastern Associated
Coal Corporation
Kyanite Mining Corporation
Camp Fork Fuel Company
Blaine K. Deel v. Paroki Enterprises, Inc.
Amber Coal Company, Inc.
Stenson Begay v. Liggett Industries, Inc.
C. W. Mining Company
James H. Colquitt v. Ideal Basic Industries
Edward Kraemer & Sons, Inc.
Sec. Labor on·behalf of Manuel L. Gomez v.
Mid-Continent Resources, Inc.
Consolidation Coal Company
Mettiki Coal Corporation
Joliet Sand & Gravel Company
Nevada Mineral Processing
L & L Gravel
William Mechanical & Welding, Inc.
Florida Mining & Materials
Beth Energy Mines, Inc.

WEVA 89-73
YORK 88-30
LAKE 88-138-M
WEST 88-273-M
CENT 89-2-M
SE
88-72-M
SE
88-101-M
WEVA 88-268-R

Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.

03-30-89

Texas Utilities Mining Co.

CENT 88-145

Pg. 950

KENT 89-21

Pg. 951

05-01-89
05-03-89
05-05-89
05-08-89
05-08-89
05-09-89
05-09-89
05-10-89
05-11-89
05-12-89
05-15-89
05-16-89
05-17-89
05-17-89
05-18-89
05-22-89
05-22-89

912 ·
914
920
922
932
933
938
942

ADMINISTRATIVE LAW JUDGE ORDER
05-12-89

New Era Coal Company, Inc.

MAY 1989
Review was granted in the following cases during the month of May:
Secretary of Labor, MSHA v. A.H. Smith Stone Company, Docket No. VA 88-44-M.
(Judge Merlin, Default Decision, February 22, 1989)
Secretary of Labor, MSHA v. Green River Coal Company, Docket No. KENT 88-152.
(Judge Koutras, April 24, 1989)
Donald Denu v. Amax Coal Company, Docket No. LAKE 88-123-D.
April 7, 1989)

(Judge Melick,

Secretary of Labor, MSHA v. L & L Gravel, Docket No. CENT 89-2-M.
Merlin, Default Decision, April 20, 1989)

(Judge

Review was denied in the following case during the month of May:·
Secretary of Labor, MSHA v. Sanger Rock & Sand, Docket No. WEST 88-44-M, etc.
(Judge Cetti, March 22, 1989)

COMMISSION DECISIONS AND ORDERS

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

May 9, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

v.

Docket Nos.

PENN 86-297-R
PENN 87-16

FLORENCE MINING COMPANY

BEFORE:

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

DECISION

BY THE COMMISSION:

At issue in this consolidated contest and civil penalty proceeding
arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1982)("Mine Act"), is whether the Florence Mining Company
("Florence") violated 30 C.F.R. § 75.1704 by removing from service an
approved emergency escape facility while miners were underground. lf
Also at issue is whether the violation was significant and substantial
in nature and caused by Florence's unwarrantable failure to comply with
the mandatory safety standard. Commission Administrative Law Judge
William Fauver answered these questions in the affirmative. 9 FMSHRC
1180 (June 1987)(ALJ). For the reasons that follow, we affirm the
judge's finding of a violation but reverse his unwarrantable failure and
significant and substan~ial findings and remand the proceeding.

lf

Section 75.1704 essentially restates 317(f)(l) of the Mine Act, 30
U.S.C. § 877(f)(l), and provides in part:
Escape facilities approved by the Secretary or
his authorized representative, properly maintained
and frequently tested, shall be present at or in
each escape shaft or slope to allow all persons,
including disabled persons, to escape quickly to the
surface in the event of an emergency.

747

The·material facts are not in controversy. Florence operates the
Florence No. 2 Mine, an underground coal mine.located at Huff,
Pennsylvania. The workings of the mine are reached by means of a "dual
compartment" slope, approximately 620 feet in length, which has a belt
entry in the top compartment and a track entry in the lower compartment.
Supplies and equipment are lowered into the mine by a materials hoist
located in the track entry. A concrete walkway, approximately 5 feet
wide, with a handrail and lighting, is located on the left side of the
slope beside the materials hoist track. Miners enter and leave the mine
by means of the walkway.
Prior to November 1985, Florence removed injured or disabled
persons from the mine, either by handcarrying a stretcher up the walkway
("stretchering out") or by transporting them on a weight car attached to
the materials hoist ("hoisting out"). In late 1985, Florence's practice
of hoisting out injured miners was challenged by representatives of the
miners as being unapproved. Thereafter, Florence requested the
Secretary of Labor's ("Secretary") Mine Safety and Health Administration
("MSHA") to approve its use of the hoist as an escape facility. On
March 4, 1986, MSHA approved the hoist as a means of transporting sick
or injured miners to the surface. The resulting "Emergency Escape Hoist
Facilities Plan" ("the plan") in part required that when miners were
underground a person trained in the operation of the hoist be available
within 30 minutes after notification to transport injured or disabled
persons to the surface. ~/
MSHA's approval of the hoist as an
emergency escape facility did not address Florence's pre-existing
policy, acceptable under the standard, of stretchering out injured or
disabled miners.
In preparation for lowering a large piece of mining equipment into
the mine on the weekend of August 16, 1987, Florence's management
decided to replace the cable on the materials hoist. (Although the
cable had several broken strands, it did not meet the regulatory
criteria for mandatory retirement. lf) On August 13, 1986, after the
morning shift had entered the mine by means of the walkway, the hoist
was removed from -service for approximately five and one-half hours while
the cable was replaced. Although Florence had notified the local union
president that the cable would be replaced, the miners working
underground on the August 13 morning shift apparently were not informed
by Florence that the cable would be replaced during their shift.
On August 14, the Johnstown, Pennsylvania, MSHA Subdistrict Field
Office received a telephone call from a representative of the miners
~/

Section 75.1704 does not specifically require an "Emergency Escape
Hoist Facilities Plan," it merely requires Secretarial approval of
"escape facilities" installed by the operator. By contrast, other
standards, ~· 30 C.F.R. §§ 75.220 and 75.316, specify that plans are
to be adopted by the operator and approved by the Secretary. We
nevertheless adopt the characterization of the approval document as a
"plan" to which the parties agreed.

lf

See, 30 C.F.R. § 75.1434.

748

requesting ·an inspection pursuant to section 103(g)(l) of the Mine
Act. ~/ The request was based on the miners' belief that the new cable
on the hoist had been damaged during its installation.
When MSHA Inspector Ronald Gossard arrived at the mine on August
14, he was presented with a written request for a section 103(g)(l)
inspection of the cable. Pursuant to the request, the inspector
conducted an inspection but determined that the cable was not in
violation of any mandatory safety standards. The inspector was then
given another written request for an additional section 103(g)(l)
inspection concerning the fact that the cable had been replaced while
miners were underground. Upon inquiry to Mine Superintendent Thomas
Moran and others, the inspector ascertained that the hoist had been out
of operation from 9:30 a.m. to 3:00 p.m. the previous day, while a
production crew was underground. The inspector found this to be a
violation of section 75.1704. He also found that the violation was
significant and substantial in nature and the result of Florence's
unwarrantable failure to comply with the standard. Therefore, the
inspector issued to Florence Order No. 2697882 pursuant to section
104(d)(2) of the Mine Act. ~/
~/

Section 103(g)(l) states in part:
Whenever a representative of the miners or a miner
in the case of a coal or other mine where there is
no such representative has reasonable grounds to
believe that a violatfon of this [Act] or a.
mandatory health or safety standard exists ... such
miner or representative shall have a right to obtain
an immediate inspectionI by giving notice to the
Secretary or his authorized representative of such
violation or danger •••• Upon receipt of such
notification, a special inspection shall be made as
soon as possible to determine if such a violation or
danger exists in accordance with the provisions of
this [Title]. If the Secretary determines that a
violation or danger does not exist, he shall notify
the miner or representative of the miners in writing
of such determination.

30 u.s.c. § 813(g)(l).
~/

Section 104(d)(2) states:
If a withdrawal order with respect to any area in
a coal or other mine has been issued pursuant to
paragraph (1), a withdrawal order shall promptly be
issued by an authorized representative of the
Secretary who finds upon any subsequent inspection
the existence in such mine of violation similar to
those that resulted in the issuance of the
withdrawal order under paragraph (1) until such time
as an inspection of such mine discloses no similar

749

The ·order states in relevant part:
The slope hoist facility approved by MSHA to
transport injured miners from the mine was removed
from operation to replace the hoist cable while
miners were underground. The hoist was not
available for use from 9:30 a.m. to 3:00 p.m. on
August 13, 1986. The operator's approved plan
requires a person trained to operate the hoist shall
be available when miners are underground to
transport injured persons to the surface. This
requirement implies that the hoist will also be
available for use when miners are underground.
The inspector subsequently modified the order to reflect his finding
that management was aware that under the plan the hoist was required to
be available to transport injured or disabled persons to the surf ace and
that management nonetheless scheduled the hoist to be replaced while
miners were underground. The modification further noted that the
replacement of the hoist cable caused the approved escape facility to be
inoperative for approximately five and one-half hours while miners were
underground.
Florence contested the validity of the order of withdrawal and the
civil penalty of $400 proposed by the Secretary for the violation of
section 75.1704 on the grounds that, under section 104(d), an inspector
may only cite violations that the inspector observes in progress.
Florence argued that even if there had been a violation, it had ceased
before the inspector's arrival and, consequently, could not be cited in
a withdrawal order issued pursuant to section 104(d). Florence also
contended that, in fact, it had not violated section 75.1704, or, in the
alternative, thqt the violation had not result~d from its unwarrantable
failure to comply, nor was it significant and substantial in nature.
The administrative law judge rejected Florence's contentions. The
judge found that enforcement actions under section 104(d) "may be issued
for violations that are reasonably recent, consistent with the prompt
disposition intended by section 104(d), even though the violation ceased
before the inspector's arrival on the scene." 9 FMSHRC at 1186. The
judge also held that the inspector reasonably concluded that the
provision in the plan requiring that a person trained to operate the
hoist be available when miners are underground meant that Florence was
required to keep the hoist in service while miners were underground.
9 FMSHRC at 1187. The judge noted that section 75.1704 contains "no
provision or exception allowing the operator to close or remove approved
escape facilities while miners are underground." He therefore concluded
that it was a violation of section 75.1704 for Florence to shut down the
violations. Following an inspection of such mine
which discloses no similar violations, the
provisions of paragraph (1) shall again be
applicable to that mine.

750

hoist while·its miners were underground. Id. In addition, the judge
held that the violation was both caused by an unwarrantable failure to
comply and significant and substantial in nature, and he assessed a
civil penalty of $400. 9 FMSHRC at 1187-92.
On review, Florence argues that the judge erred in four respects:
(1) in concluding that a section 104(d)(2) order of withdrawal could be
based upon a violation occurring prior to its detection by the
inspector; (2) in finding a violation of section 75.1704; (3) in
determining that the alleged violation was due to Florence's
unwarrantable failure to comply with the standard; and (4) in finding
that the violation was of a significant and substantial nature. We
consider each of these challenges in turn.
I.

Subsequent to the judge's decision, the Commission issued a series
of decisions addressing the first issue raised by Florence. Nacco
Mining Co., 9 FMSHRC 1541 (September 1987), pet. for review filed, No.
88-1053 (D.C. Cir. January 27, 1988); Emerald Mines Corp., 9 FMSHRC 1590
(September 1987), affd., 863 F.2d 51 (D.C. Cir. 1988); White County Coal
Corp., 9 FMSHRC 1578 (September 1987), pet. for review filed, No. 881174 (D.C. Cir. March 1, 1988); and Greenwich Collieries, 9 FMSHRC 1601
(September 1987). In these decisions the Commission concluded that a
section 104(d) enforcement action may be based upon violations detected
by an inspector even after the violations had ceased to exist. In
particular, Nacco and Emerald involved the issuance of section 104(d)(l)
citations for violations detected by inspectors during section 103(g)(l)
inspections. The Commission found "nothing in the language of section
103(g) that requires the violation to be ongoing when the inspector
arrives at the mine site." 9 FMSHRC at 1548; 9 FMSHRC at 1594.
Further, in White County Coal Corp., the Commi~sion concluded that
"section 104(d) orders may be based upon violations detected by the
inspector during an inspection occurring after the violation has ceased
to exist." The Commission noted that "the focus of section 104(d) is
upon unwarrantable failure by the operator, not upon whether its
detection occurred concurrently with its commission." 9 FMSHRC at 1581.
In affirming Emerald, supra, the United States Court of Appeals
for the District of Columbia Circuit stated:
The gravity of the mine operator's conduct does not
turn on whether the operator was caught in or after
the act. We are satisfied that the Commission's
interpretation properly preserves "the unwarrantable
failure closure order as an effective and viable
enforcement sanction" ...• [W]e hold th~t the
Secretary may make "unwarrantable failure" findings
under section 104(d) of the Mine Act for violations
that have abated before the inspector arrives at the
site.
Emerald, supra, 863 F.2d at 59 (citations omitted). Therefore, we hold
that the judge correctly rejected Florence's argument that a withdrawal

751

order cannot properly be issued pursuant to section 104(d)(2) for
violations detected after they have ceased to exist.
II.

We further conclude that substantial evidence supports the judge's
conclusion that Florence violated section 75.1704. There is no dispute
that, at Florence's request, use of the materials hoist was approved by
the Secretary as an emergency escape facility to transport injured or
disabled miners· from the mine. Exhibit GX-D. This approval required in
part that "a person trained in the operation of the hoist shall be
available when miner(s) are underground to transport injured persons to
the surface," and that the hoist "be operative within 30 minutes after
being alerted." Id. at Attachment 2, 4. We agree with the judge that
the inspector's interpretation of the provisions of the plan to require
that the hoist be kept in service while miners· are underground is
reasonable. 9 FMSHRC at 1186-87. We therefore agree that Florence was
required to keep the hoist in service while miners were underground.
Here it is uncontroverted that, in order to replace the cable, Florence
removed the facility from service for five and one-half hours on August
13, 1986, while a production shift was underground.
Florence argues that because the plan contained no express
language specifying when the hoist cable could be changed and because
Florence could stretcher out injured or disabled miners, it did not
violate section 75.1704. These arguments miss the mark. Although
Florence correctly notes that it was not foreclosed from stretchering
out injured miners even after obtaining approval to use the hoist, once
it had committed to utilize the hoist as an approved escape facility,
Florence was obligated by the terms of the plan to maintain its
availability within 30 minutes while miners were underground. We
therefore affirm the judge's finding of a violation of section 75.1704.
III.

In decisions issued subsequent to the judge's decision, we held
that "unwarrantable failure" means "aggravated conduct, constituting
more than ordinary negligence, by a mine operator in relation to a
violation of the Act." Emery Mining Corp., 9 FMSHRC 1997, 2004
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007, 2010
(December 1987). In concluding that Florence unwarrantably failed to
comply with section 75.1704, the judge stated that "the phrase
'unwarrantable failure' means the failure of an operator to abate a
condition or practice constituting a violation of a mandatory standard
it knew or should have known existed, or the failure to abate such a
condition or pra6tice because of indifference or lack of reasonable
care." 9 FMSHRC at 1187-90. The judge determined that under either the
"knew or should have known" or the "indifference or lack of reasonable
care" construction, Florence "demonstrated an unwarrantable failure to
comply with the cited safety standard when it deliberately shut down the
hoist for 5! hours on a production day." 9 FMSHRC at 1191. Florence
argues that the judge applied an incorrect legal standard in determining
whether the violation was the result of its unwarrantable failure to
comply, and that, in any event, the violation was not the result of its

752

unwarrantable failure.
The Commission has previously reviewed the same construction of
"unwarrantable failure" as was set forth by the judge in the present
case, and has concluded that "[e]ven though the judge did not literally
anticipate and apply the aggravated conduct standard cf unwarrantable
failure enunciated in Emery, his treatment of the question of
unwarrantable failure ... is in accord substantively with that
decision." Quinland Coals, Inc., 10 FMSHRC 705, 708 (June 1988); see
also The Helen Mining Company, 10 FMSHRC 1672, 1676 (December 1988).
Therefore, the relevant inquiry is whether the evidence supports the
judge's finding of unwarrantable failure.
Florence argues that an unwarrantable failure finding is
inappropriate due to the existence of a good faith dispute over the
requirements of the approved emergency escape facilities plan. In
support of this argument, Florence points to the lack of express
language in the plan addressing when the hoist must be operable, the
witnesses' differing interpretations of the plan provision mandating
that a hoist operator be available when miners are underground, the fact
that this was the first occasion since the hoist had become an approved
escape facility that the cable was replaced, the lack of prior
interpretative disputes with MSHA over the requirements of the plan and
the availability of an alternative method of compliance with the
standard (stretchering out). Florence also stresses that in issuing the
withdrawal order the inspector found only "moderate" negligence in
respect to the violation and that this finding conflicts with his
further finding of an unwarrantable failure.
In determining whether the judge's unwarrantable failure finding
is supported by substantial evid~nce, we must consider the record as a
whole including the evidence that "fairly detracts" from the finding.
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). Measured
against this standard, we conclude that the judge's finding of
unwarrantable failure cannot be sustained.
As discussed, the inquiry is whether Florence's conduct in
removing the hoist from service constituted aggravated conduct exceeding
ordinary negligence. The great weight of the evidence establishes that
Florence's on-shift repair of the hoist was not attributable to such
aggravated conduct. Rather, as set forth below, it is clear that
Florence's decision to remove the hoist from service was based on its
own good faith belief that it was not prohibited from doing so by the
terms of the approved escape plan and by virtue of the continued
presence and availability of the slope walkway as a permissible escape
route.
First, the inspector and the mine superintendent agreed that the
plan did not expressly address when the hoist cable could be replaced or
serviced and did not expressly specify whether or when the hoist could
be taken out of service when miners were underground. Tr. 21, 133.
Also, this was the first occasion that the hoist cable had been replaced
since the hoist had been approved as an emergency escape facility.
Prior to this approval, no standard or plan proscribed replacement of

753

the hoist cable during production shifts, and it is undisputed that the
issue of whether, or when, the approved escape facility could be removed
from service had not previously arisen as an issue between Florence and
MSHA.
Second, it must be stressed that the stretchering out of injured
miners along the illuminated, cement slope walkway was an acceptable
means of compliance with the standard which does not require the
presence of a mechanical escape facility in the type of slope in
question. As the MSHA inspector indicated in his testimony, the
approval of the hoist as an escape facility did not affect Florence's
ability to remove injured miners by transporting them out of the mine on
stretchers handcarried up the walkway. Tr. 86. Rather, this route
remained as an "alternative or additional means of removing injured
people." Id. The record makes it abundantly clear that the continued
availability of this escape facility during the time that the materials
hoist was out of service formed the basis for Florence's belief that
removal of the hoist was not violative of the cited standard.
Third, the MSHA inspector found that the level of Florence's
negligence in connection with the violation was "moderate," a finding
left unchanged during the two subsequent modifications of the order. In
this regard, we note that MSHA Policy Memorandum Nos. 88-2C and 88-lM,
issued April 6, 1988, provide that "evidence of moderate negligence will
generally not support unwarrantable failure findings.'' As counsel for
the Secretary admitted at the oral argument before the Commission in
this case, the Secretary continues to adhere to the statement of
position in the policy memorandum and the inspector's findings therefore
"somewhat •.. conflict." Oral Arg. Tr. at 29-31. Although the validity
of the interpretation set forth in the policy memorandum is not at issue
in this case, we agree with Florence that the inspector's conflicting
findings detract from the Secretary's arguments in support of the
unwarrantable failure finding.
In sum, in light of our review of the record as a whole, we
conclude that Florence's action was a result of its mistaken, but good·
faith, belief in the correctness of its interpretation of the plan and
of the requirements of section 75.1704. Therefore, we conclude that
Florence's conduct in connection with the violation did not constitute
aggravated conduct exceeding ordinary negligence and the judge's
contrary finding of an unwarrantable failure must be reversed.

IV.
Florence also challenges the judge's finding that the violation of
section 75.1704 was of a significant and substantial nature. After
affirming the violation, the judge determined that the purpose of the
approved emergency escape facility was "to provide safe and relatively
fast transportation of injured persons from the mine." 9 FMSHRC at
1192. Stating that transportation by hoist was faster and superior to
transportation by stretcher up the slope, the judge determined that
"[b]y shutting down the hoist for 5~ hours while the day shift miners
were underground, mine management consciously removed an important
emergency protection of the miners" and that this reduction of

754

protection could "significantly and substantially contribute to the
cause and effect of aggravated injury, or even death, ~· in case of
severe shock, internal bleeding or burns." Id.
Florence argues that the judge's finding of a significant and
substantial violation is not supported by substantial evidence. It
asserts that there is no medical evidence in the record supporting a
finding that the unavailability of the hoist would result in an injury
of a reasonably serious nature. Instead, it asserts that the testimony
in this regard ·is comprised of only unfounded speculation. Florence
further argues that the judge erred because he based his significant and
substantial finding on a comparison of two methods for the evacuation of
injured or disabled miners, a comparison in which stretchering out
injured miners came up short, when, in fact, both methods of evacuation
are acceptable to MSHA. We agree.
A violation is properly designated as being of a significant and
substantial nature if, based on the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably
serious nature. Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
(April 1981). In arriving at the definition of significant and
substantial in National Gypsum, the Commission explicitly rejected the
Secretary's position that significant and substantial violati.ons include
all but "purely technical violations" or those "which pose risks having
only a remote or speculative chance of happening." Id. at 826, n.5. In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission
explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, tne Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard -- that is, a measure of danger to safety -contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably
serious nature.
The third element of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard contributed to will
result in an event in whiCh there is an injury," and that the likelihood
of injury must be evaluated in terms of continued normal mining
operations. Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th
Cir. 1988); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July
1984); see also Halfway, Inc., 8 FMSHRC 8, 12 (January 1986).
Our affirmance of the judge's finding that Florence violated
section 75.1704 establishes the first element of the Mathies test. The
second element requires the Secretary to prove that the violation of
section 75.1704 presented a discrete safety hazard. The judge based his
finding that the violation could "contribute to the cause and effect of

755

aggravated injury, or even death" upon the testimony of the inspector.
9 FMSHRC at 1192. The inspector stated that stretchering out injured or
disabled miners could result in aggravation of injuries or disabilities
due to delay in reaching the surface, jostling of the stretcher, or
reduced ability to effectively administer first aid. Tr. 26-28, 30-31,
46-49, 87-88.
We conclude that substantial evidence does not support a
finding that the time difference between the two methods of evacuation
presented a discrete safety hazard. Estimates of the time required to
evacuate an average-sized miner up the slope via a stretcher varied from
5-7 minutes to 10-12 minutes. Tr. 73, 101, 173. Estimates of the time
required to evacuate a miner up the slope on the weight car ranged from
2 to 3 minutes. Tr. 74-75, 171. Although all witnesses agreed that the
actual hoisting out would be faster than stretchering out,
Superintendent Moran emphasized that procedures involved in readying the
hoist could lessen and even eliminate the time difference between the
two evacuation methods. Tr. 74-78, 100, 111, 146, 173-74, 185-87. Even
assuming that the hoist operator had been alerted and the hoist was at
the bottom of the slope, the stretcher would have to be secured to the
weight car, safety drags would have to be set, and the hoist operator
would have to be notified to begin raising the hoist. See, e.g., Tr.
50-53, 136-38. In addition, the inspector testified that the plan
allowed for a delay of up to 30 minutes for the hoist operator to be
located and alerted to lower the hoist. Tr. 74-80. In view of these
facts, the evidence cannot be viewed as supporting the conclusion that
stretchering out would result in a meaningful delay in reaching the
surface and that utilization of the stretcher method would ipso facto
constitute a discrete safety hazard.
As to whether stretchering out miners could result in aggravation
of their injuries or disabilities due to jostling of the stretcher or
reduced ability to administer first aid, the inspector stated that he
believed more severe injuries were likely if an injured miner were
stretchered out of the mine. However, the inspector admitted that he
was unfamiliar with the injury record at the No. 2 mine and did not know
what injuries had occurred there. Tr. 47-48. The Secretary presented
no evidence showing that the stretchering out of miners had resulted in
exacerbated injuries or disabilities at the No. 2 mine, or, for that
matter, at any other mine.
Most importantly, the witnesses agreed that the use of stretchers
was an acceptable method of evacuating injured or disabled miners to the
surface prior to MSHA's approval of the hoist as an emergency escape
facility and that even after the approval MSHA continued to regard the
use of stretchers as an acceptable means of transporting mjners to the
surface. Tr. 85-86. Put simply, if no hoist were in place at this
slope mine, there would not even have been a violation since the walkway
alone would have constituted full compliance with the standard in issue.
Tr. 56, 68-69, 85-86. It would be anomalous, indeed, to conclude that a
method of evacuation that would be acceptable in and of itself is
somehow transformed into an evacuation method involving significant and
substantial hazards simply because an approved alternative became
temporarily unavailable.
For these reasons, we conclude that substantial evidence does not

756

support the judge's finding that the violation of section 75.1704 was
significant and substantial in nature.

v.
In sum, we affirm the judge's finding that Florence violated
section 75.1704 by removing an approved emergency escape facility from
operation while miners were underground, but we reverse the judge's
findings that the violation was the result of Florence's unwarrantable
failure and that it was significant and substantial in nature.
Accordingly, we remand the proceeding for reconsideration of the civil
penalty assessed in light of our reversal of the unwarrantable failure
and significant and substantial findings.

:}~d-~
Joyce A. Doyle, CommiSSiOil

757

Distribution
R. Henry Moore, Esq.
Buchanan Ingersoll
58th Floor
600 Grant Street
Pittsburgh, PA 15219
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

758

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

May 10, 1989
RUSHTON MINING COMPANY

v.

Docket Nos. PENN 85-253-R
PENN 86-1

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

BEFORE:

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

DECISION

BY THE COMMISSION:
The question presented is whether the Commission may award Rushton
Mining Company ("Rushton") reimbursement from the Secretary of Labor for
its attorney's fees and litigation expenses as a sanction against the
Secretary under Rule 11 of the Federal Rules of Civil Procedure ("Fed.
R. Civ. P. 11") in a proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982) (the "Mine Act"
or "Act"). ll In a prior order, we remanded this matter to Commission

lf

Fed. R. Civ. P. 11 provides:
Signing of Pleadings, Motions, and Other Papers;
Sanctions
Every pleading, motion, and other paper of a party
represented by an attorney shall be signed by at
least one attorney of record in the attorney's
individual name, whose address shall be stated. A
party who is not represented by an attorney shall
sign the party's pleading, motion, or other paper
and state the party's address. Except when
otherwise specifically provided by rule or statute,
pleadings need not be verified or accompanied by
affidavit. The rule in equity that the averments of
an answer under oath must be overcome by the
testimony of two witnesses or of one witness

759

Administrative Law Judge James A. Broderick for a determination of this
issue. 9 FMSHRC 392 (March 1987). Judge Brod.erick concluded that
monetary sanctions under Fed. R. Civ. P. 11 are not available in
Commission proceedings and that, even if they were, the facts of this
case would not support such an award. 9 FMSHRC 1270 (July 1987)(ALJ).
We agree in result and affirm.
On June 11, 1985, Donald Klemick, an inspector of the Department
of Labor's Mine Safety and Health Administration ("MSHA"), conducted an
inspection at Rushton's underground coal mine located in Centre County,
Pennsylvania. Klemick issued to Rushton withdrawal order No. 2403926
pursuant to section 104(d)(l) of the Mine Act, 30 U.S.C. § 814(d)(l),
alleging a violation of 30 C.F.R. § 75.326. ~/ The withdrawal order
sustained by corroborating circumstances is
abolished. The signature of an attorney or party
constitutes a certificate by the signer that the
signer has read the pleading, motion, or other
paper; that to the best of the signer's knowledge,
information, and belief formed after reasonable
inquiry it is well grounded in fact and is warranted
by existing law or a good faith argument for the
extension, modification, or reversal of existing
law, and that it is not interposed for any improper
purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of
litigation. If a pleading, motion, or other paper
is not signed, it shall be stricken unless it is
signed promptly after the omission is called to the
attention of the pleader or movant. If a pleading,
motion, or other paper is signed in violation of
this rule, the court, upon motion or upon its own
initiative, shall impose upon the person who signed
it, a represented party, or both, an appropriate
sanction, which may include an order to pay to the
other party or parties the amount of the reasonable
expenses incurred because of the filing of the
pleading, motion, or other paper, including a
reasonable attorney's fee.
(As amended April 28, 1983, effective August 1, 1983.)
added.)

(Emphasis

~I

Section 75.326, taken from mandatory safety standards contained in
the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et
seq. (1976)(amended 1977) and the Mine Act (~ 30 U.S.C. § 863(y)(l)
(1976)(amended 1977) and 30 U.S.C. § 863(y)(l) (1982)), provides in
relevant part:
Aircourses and belt haulage entries.
In any coal mine opened after March 30, 1970, the
entries used as intake and return air courses shall
be separated from belt haulage entries, and each

760

states:
The West mains intake trolley haulage secondary
escapeway entry was not separated from the parallel
West mains belt haulage entry near the slope bottom.
The permanent type stopping had been removed and was
replaced by a brattice cloth check curtain on the
belt side and by a runthrough type brattice cloth
check on the trolley haulage side. Both curtains
(checks) were installed in a poor workmanlike manner
with excessive leakage from the belt into the track
as was indicated by the use of smoke clouds.
This order requires a permanent type stopping to be
installed or the minimum of a substantial equipment
door and a substantial check to serve as an adequate
airlock.
Because Rushton's mine was opened prior to March 30, 1970, and had
more than two entries, the second sentence of 30 C.F.R. § 75.326 (n. 2
infra) was applicable to the mine. Although the trolley haulage entry
was not a primary intake entry, it functioned at times.as a component of
the mine's air intake system. Due to the removal of the stopping
between the trolley entry and the parallel belt entry and the
installation of ineffective curtain barriers, air from the belt entry
was entering the trolley entry. Under these circumstances, a violation
of the second sentence of section 75.326 arguably would have occurred if
air from the belt entry was used to ventilate active working places in
the absence of an MSHA determination that such ventilation was
"necessary." (In contrast, the first sentence of section 75.326, which
applies to coal mines opened after March 30, 1970, provides that intake
and return aircourse entries must be kept separate from belt haulage
entries.)
Rushton filed a notice of contest of the withdrawal order
contesting the validity of the order, denying that there was any
violation in this case, and contending that the order failed even to
operator of such mine shall limit the velocity of
the air coursed through belt haulage entries to the
amount necessary to provide an adequate supply of
oxygen in such entries, and to insure that the air
therein shall contain less than 1.0 volume per
centum of methane, and such air shall not be used to
ventilate active working places. Whenever an
authorized representative of the Secretary finds, in
the case of any coal mine opened on or prior to
March 30, 1970, which has been developed with more
than two entries, that the conditions in the
entries, other than belt haulage entries, are such
as to permit adequately the coursing of intake or
return air through such entries, ••• the belt
haulage entries shall not be used to ventilate,
unless such entries are necessary to ventilate,
active working places ....

761

state a violation on its face. In response the Secretary filed an
answer asserting that the order was properly issued. The Secretary also
filed a petition for civil penalty proposing a penalty of $1,100 for the
alleged violation. This matter was assigned to Judge Broderick, who
subsequently consolidated it with additional penalty and contest
proceedings arising from other citations and orders issued at the
·Rushton Mine by Inspector Klemick. See Rushton Mining Co., 9 FMSHRC 325
(February 1987)(ALJ).
An evidentiary hearing in the consolidated cases was held before
Judge Broderick on November 6, 1986. The testimony pertinent to this
matter focused on the question of whether air in the trolley haulage
entry had been used to ventilate active working places of the mine on
the day that the withdrawal order was issued. Rushton's mine manager,
Raymond Roeder, testified in essence that on that day air in the trolley
entry was not being used to ventilate active working places but instead
was being dumped in the return entry. Inspector Klemick's testimony
concerning the alleged violation was, in our opinion, unclear and may
have reflected some confusion as to the distinct requirements imposed by
the first and second sentences of section 75.326.
On February 3, 1987, after completion of the hearing and before
any briefs were filed with respect to the withdrawal order in question,
the Secretary filed a motion seeking leave to vacate the order and to
withdraw the associated civil penalty petition. The motion states:
Subsequent to a hearing on the merits in the
above-captioned matter and upon additional review of
the alleged violation, it has been determined that
the petition should be withdrawn insofar as it
concerns Citation No. 2403926, which should be
vacated. The respondent has no objection to the
Secretary's Motion.
In his decision of February 20, 1987, ruling in the consolidated cases,
Judge Broderick granted the motion without substantive comment, vacated
the order, and dismissed the contest proceeding and associated civil
penalty petition. 9 FMSHRC at 326.
On March 20, 1987, Rushton filed with the Commission a Petition
for Discretionary Review pursuant to section 113(d)(2)(A)(ii) of the
Mine Act, 30 U.S.C. § 823(d)(2)(A)(ii), contending that in proceedings
before the Commission a mine operator is eligible for reimbursement of
its litigation expenses from the Secretary under Fed. R. Civ. P. 11 if
the Secretary has engaged in the kind of litigation abuse covered by the
rule, and that the facts of this case justified such an award. Rushton
asserted that Fed. R. Civ. P. 11 should be applied to Commission
proceedings pursuant to Commission Procedural Rule l(b), 29 C.F.R.
§ 2700.l(b), which provides that "[o]n any procedural question not
regulated by the Act, [the Commission's] Procedural Rules, or the
Administrative Procedure Act (particularly 5 U.S.C. 554 and 556), the
Commission or any Judge shall be guided so far as practicable by any
pertinent provisions of the Federal Rules of Civil Procedure as
appropriate." Rushton argued that the Secretary's answer to Rushton's

762

notice of contest, which alleged that the withdrawal order had been
properly issued, "was not well-grounded in fact as evidenced by the
subsequent Motion to Withdraw and vacation of the Order." PDR at 5.
In an order issued on March 30, 1987, we stated that given the
termination of the judge's jurisdiction upon issuance of his
·February 20, 1987 decision (see 29 C.F.R. § 2700.65(c)), Rushton "did
not have the opportunity to present the issue of reimbursement before
the trier of fact." 9 FMSHRC at 392. We accordingly remanded the
proceeding to Judge Broderick "for the purpose of developing a record
and ruling on the issues" presented in Rushton's petition.
In response to an order issued by Judge Broderick in the remand
proceeding, the parties indicated that they did not wish to submit any
evidence on the issues presented. In his decision, the judge denied
Rushton's application for attorney's fees and other litigation expenses,
concluding that Fed. R. Civ. P. 11 does not apply to Commission
proceedings. The judge held that the procedural question of possible
reimbursement of litigation expenses is "regulated" by Commission
Procedural Rules 6 and 80, 29 C.F.R. §§ 2700.6 & .80, and that those
rules do not authorize reimbursement of a party's expenses as a
sanction. 9 FMSHRC at 1273. Therefore, he found it "unnecessary to
look to the Federal Rules of Civil Procedure for guidance." Id. The
judge stated that Commission Procedural Rule 6 was "obviously~odeled
after Rule 11 of the FRCP except that it does not provide for a sanction
when the rule is disregarded." Id. Although he found that certain
sanctions could be assessed under Commission Procedural Rule 80, he
concluded that they "do not include an order assessing costs or
attorney's fees." 9 FMSHRC at 1272-73. The judge also determined that,
even assuming the applicability of Fed. R. Civ. P. 11 as a guide, the
record in this case would not support a conclusion that the Secretary's
answer to Rushton's contest and the Secretary's civil penalty petition
were not well grounded in fact or warranted by law. 9 FMSHRC at 1274.
Rushton filed a Petition for Discretionary Review of this ruling,
which we granted. We also heard oral argument. The essential question
presented is whether the monetary sanctions provision of Fed. R. Civ.
P. 11 applies to Commission proceedings. In accord with the judge, we
conclude that it does not.
The fundamental flaw in Rushton's position is that the Commission
lacks authority to grant the relief requested. The barriers to the
relief sought include the silence of the Mine Act on the subject, the
nature of the Federal Rules of Civil Procedure, the bar of sovereign
immunity, and the Equal Access to Justice Act (Pub. L. No. 96-481, 94
Stat. 2325, reauthorized, Pub. L. 99-80, 99 Stat. 183) ("EAJA").
We begin with the Mine Act. No provision of the Act expressly
empowers the Commission to award to a mine operator attorney's fees and
costs from the Secretary in an administrative proceeding arising under
the Act. Granting that Rushton is seeking attorney's fees and costs not
as a prevailing party but, rather, as an alleged victim of litigation
abuse, we nevertheless note that we have strictly interpreted the Act
when determining whether such awards are due prevailing parties. For

763

instance, section 105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3),
specifically authorizes assessment of attorney's fees and costs in favor
of a prevailing complainant in certain discrimination proceedings
arising under section 105(c) of the Act. 30 U.S.C. § 815(c). In
construing this provision, we have concluded, however, that attorney's
fees ar~ not awardable to a complainant who retains private counsel in a
·discrimination complaint proceeding brought by the Secretary of Labor on
the complainant's behalf pursuant to section 105(c)(2) of the Act, 30
U.S.C. § 815(c)(2). Odell Maggard v. Chaney Creek Coal Corp., etc.,
9 FMSHRC 1314, 1322-23 (August 1987), aff'd in part, rev'd in part on
other grounds, 866 F.2d 1424 (D.C. Cir. 1989). We based this position
on Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 643-44 (4th Cir.
1987), in which the Fourth Circuit, applying the "American Rule"
limiting availability of attorney's fees in the absence of statutory
authorization(~ Alyeska Pipeline Service Co. v. The Wilderness Soc.,
421 U.S. 240, 247-71 (1975)), discerned no statutory warrant for private
counsel fees in a discrimination complaint proceeding brought by the
Secretary under 30 U.S.C. § 815(c)(2). Comparably, the absence of such
an authorization in section 111 of the Act, 30 U.S.C. § 821, precludes
the award of attorney's fees and costs in a compensation proceeding.
Loe. U. 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493, 1498-99
(November 1988), pet. for review filed on other grounds, No. 88-1873
(D.C. Cir. December 16, 1988). We stated in Clinchfield: "[U]nder the
'American Rule' applied to the Mine Act as set forth in the Fourth
Circuit's [Eastern] decision, attorney's fees are not available to
prevailing litigants under the Mine Act, except where the Act
specifically authorizes such fees." 10 FMSHRC at 1499. Thus, as we
have observed in a number of analogous contexts, the absence of specific
statutory authorization for an asserted form of relief under the Mine
Act "dictates cautious review •.•. " Council of So. Mtns. v. Martin
County Coal Corp., 6 FMSHRC 206, 209 (February 1984), aff'd, 751 F.2d
1418 (D.C. Cir. 1985). See also Kaiser Coal Corp., 10 FMSHRC 1165,
1169-70 (September 1988).
Similarly, as Judge Broderick correctly observed, none of our
procedural rules, which establish procedures governing administrative
litigation before the Commission arising under the Act, purports to
grant the Commission such authority. Rule 11, upon which Rushton
relies, is one of the Federal Rules of Civil Procedure, which "govern
the procedure in the United States district courts in all suits of a
civil nature ..•. " Fed. R. Civ. P. 1. The Commission, of course, is not
a federal court. The Commission is an agency created under the Mine Act
with certain defined and limited administrative and adjudicative powers.
30 U.S.C. § 823; see generally, ~· Kaiser Coal, supra, 10 FMSHRC at
1169-70; Old Ben Coal Co., 1 FMSHRC 1480, 1484 (October 1979). Rushton
has not enlightened us with any federal court decisions supporting its
novel proposition that a federal agency such as the Commission may
employ Fed. R. Civ. P. 11 in administrative proceedings to support an
award of attorney's fees against the federal government. (Rushton
acknowledged this lack of judicial authority at oral argument. Tr. Arg.
14.) Our own review of the case law under Fed. R. Civ. P. 11 persuades
us that an administrative agency's grant of attorney's fees against the
federal government under Fed. R. Civ. P. 11 in administrative
proceedings would be unprecedented.

764

Rushton misconstrues our Procedural Rule l(b). Rule l(b) does not
dictate that any particular Federal Rule of Civil Procedure be
reflexively applied in Commission proceedings on procedural questions
not regulated by the Mine Act, Administrative Procedure Act, or our own
procedural rules. Rather, Procedural Rule l(b) merely states that in
such circumstances, the Commission and Commission judges are to be
·"guided so far as practicable" by the Federal Rules of Civil Procedure
"as appropriate." Plainly, Procedural Rule l(b) reserves to the
Commission considerable discretion in deciding whether and to what
extent it is to be "guided" by a particular Federal Rule of Civil
Procedure. In assessing the "practicability" and "appropriateness" of
awarding attorney's fees and costs against the Secretary under Fed. R.
Civ. P. 11, we are met with formidable obstacles, the doctrine of
sovereign immunity and the clear applicability of the EAJA.
It is a settled principle of federal law that the United States,
as the "sovereign," is immune from suit except as it consents to be
sued, and that the terms of such consent strictly limit a court's
jurisdiction to entertain the suit. Block v. North Dakota, 461 U.S.
273, 280 (1983); United States v. Mitchell, 445 U.S. 535, 583 (1980).
A claim is against the sovereign if the judgment sought, as here, would
draw on the public treasury. Dugan v. Rank, 372 U.S." 609, 620 (1963).
Waivers of sovereign immunity '.'cannot be implied but must be
unequivocally expressed." United States v. King, 395 U.S. 1, 4 (1969);
United States v. Testan, 424 U.S. 392, 394 (1976). Only Congress may
waive the sovereign immunity of the United States. Block, supra, 461
U.S. at 280. The doctrine of sovereign immunity bars the award of
attorney's fees and costs to be taxed against· an agency of the United
States unless there is Congressional authorization. United States v.
Chemical Foundation, Inc., 272 U.S. 1, 20 (1926); NAACP v. Civiletti,
609 F.2d 514, 520 (D.C. Cir. 1979); Van Hoomissen v. Xerox Corp., 503
F.2d 1131, 1132 (9th Cir. 1974); Pyramid Lake Paiute Tribe of Indians v.
Morton, 499 F.2d 1095, 1096 (D.C. Cir. 1974), cert. denied, 420 U.S. 962
(1975).
-In enacting the EAJA, Congress has occupied the relevant field in
a manner, as we explain below, fatal to Rushton's claims here. The EAJA
expressly permits attorney's fees and costs against the United States in
administrative proceedings (5 U.S.C. § 504 (West Supp. 1988)) and in
civil court proceedings (28 U.S.C. § 2412 (West Supp. 1988)). J/ Under
5 U.S.C. § 504, a prevailing party in administrative litigation against
an agency of the United States may be awarded fees and expenses "unless
... the position of the agency was substantially justified or that
special circumstances make an award unjust." In turn, we have
promulgated rules implementing the EAJA in Commission adjudicatory
proceedings. 29 C.F.R. Part 2704. We conclude that the EAJA is
presently the exclusive remedy provided by Congress to prevailing
litigants who seek reimbursement of their litigation expenses from the
Secretary in Commission contest and civil penalty proceedings.

lf

The EAJA as originally enacted was effective for a three-year
period, October 1, 1981, through October 1, 1984. The EAJA expired and
Pub. L. 99-80 reauthorizing EAJA was enacted on August 5, 1985.

765

The EAJA, which was originally enacted in 1980 (P.L. 96-481),
amended the Administrative Procedure Act by adding new section 5 U.S.C.
§ 504 and also modified 28 U.S.C. § 2412.
As originally enacted and as
reauthorized, EAJA is intended to expand the liability of the United
States for attorney's fees and other expenses in administrative
proceedings and civil actions. H.R. Rep. No. 1418, 96th Cong., 2d
·Sess. 5, reprinted in 1980 U.S. Code Cong. & Ad. News 4984; H.R. Rep.
No. 99, 99th Cong. 1st Sess. 4, reprinted in 1985 U.S. Code Cong. & Ad.
News 132. The primary purpose of EAJA is to ensure that certain
eligible individuals, partnerships, corporations, business associations,
and other organizations will not be deterred from seeking review of or
defending against unjustified governmental action because of the expense
involved in securing the vindication of their rights. H.R. Rep. No.
1418, supra, at 5, 12 reprinted in 1980 U.S. Code Cong. & Ad. News 4984,
4991; H.R. Conf. Rep. No. 1434, 96th Cong., 1st Sess. 21, reprinted in
1985 U.S. Code Cong. & Ad. News 5010; H.R. Rep. No. 99, supra, at 4,
reprinted in 1985 U.S. Code Cong. & Ad. News 132-33. The EAJA serves as
a clear expression of Congress' waiver of soNereign immunity for the
purpose of compensating eligible parties for the cost of litigation
incurred as a result of unreasonable action by the United States.
However, by its explicit terms, the EAJA sets economic limits for such
relief and this restriction mandates our denial of Rushton's claim.
The EAJA restricts eligible applicants to those individuals with a
net worth of not more than $2 million and those small businesses and
other entities with a net worth of not more than $7 million and not more
than 500 employees. 5 U.S.C. § 504(b)(1)(B) (West Supp. 1988); 28
U.S.C. § 2412(d)(2)(B) (West Supp. 1988). The Commission's EAJA rules,
as amended, mirror these eligibility criteria. 29 C.F.R. § 2704.104(b)
(54 Fed. Reg. 6284, 6285 (February 1989)). Rushton, a large mine
operator, concedes that it does not meet these criteria and would have
us use Fed. R. Civ. P. 11 to bypass the EAJA's ~ligibility standards and
its failure to qualify under those standards. The EAJA and the doctrine
of sovereign immunity cannot be so easily circumvented.
Congressional waivers of sovereign immunity are strictly and
narrowly construed, and a statute permitting claims against the United
States must be confined to its explicit terms. See, ~· In re Oliver
North, 842 F.2d 340, 342 (D.C. Cir. 1988); Unification Church v. INS,
762 F.2d 1077, 1089 (D.C. Cir. 1985); Nichols v. Pierce, 740 F.2d 1249,
1255-56 (D.C. Cir. 1984). These principles apply fully to the EAJA.
Action on Smoking & Health v. CAB, 724 F.2d 211, 225 (D.C. Cir. 1984).
In setting the size and dollar eligibility limitations in the EAJA,
Congress determined that sovereign immunity was not waived as to
entities of a size or with net worth above those limits. We are bound
to respect that congressional choice. Cf. Kaiser Coal, supra, 10 FMSHRC
at 1170. Under these circumstances, Rushton's proper appeal lies, not
with the Commission, but with Congress -- to relax EAJA's eligibility
requirements. ~/
~/

In Adamson v. Bowen, 855 F.2d 668 (10th Cir. 1988), decided just
prior to oral argument in this case, the Tenth Circuit approved a grant
of Fed. R. Civ. P. 11 attorney's fees against the federal government in

766

Finally, we conclude, as did the judge, that even if Fed. R. Civ.
P. 11 did apply to Commission proceedings, the standards for an award
have not been met. In general, under Rule 11, monetary sanctions may be
imposed if a reasonable inquiry discloses that a litigant's pleading or
other paper is not well grounded in fact, is not warranted in law, or
has been interposed for any improper purpose. See, ~· Westmoreland
-v. CBS, Inc., 770 F.2d 1168, 1174-80 (D.C. Cir. 1985). The rule is
directed against unreasonable or abusive litigation. Westmoreland,
supra, 770 F.2d at 1180.
Here, Rushton asserts that the Secretary's answer to Rushton's
contest and the Secretary's civil penalty petition were not well
grounded in fact as evidenced by the Secretary's dismissal motion.
However, we emphasize that, as the judge noted, Rushton failed to put
forth any evidence, either in the original proceeding or in the remanded
proceeding before Judge Broderick, to prove that allegation. As the
judge properly observed:
Rushton's brief assumes that it is self-evident,
or at least evident from the record made in this
case, that the Secretary's Answer in the cont.est
case and his Petition in the penalty case did not
meet the requirements of Rule 11 •••. [T]he record
before me is limited to the testimony and exhibits
addressed to the order and its propriety, and the
fact that after hearing, the Secretary moved to
withdraw the penalty petition as related to the
order and to vacate the order. Rushton did not
object to the motion and it was granted. It would
be presumptuous in the extreme on the basis of such
a record to conclude that the documents in question
were filed by officers of the court ~ithout the
belief that they were well grounded in fact and
warranted by law. I don't know and the record does
not show what inquiry was made prior to the filing
of the documents •••• Therefore, even if Rule 11
applied to Commission proceedings, I would conclude
that this record does not show that it was violated.
9 FMSHRC at 1274.
civil litigation involving a social security disability applicant on the
grounds that the civil branch of the EAJA, 28 U.S.C. § 2412, waived the
government's sovereign immunity from fee awards made pursuant to the
Federal Rules of Civil Procedure. 855 F.2d at 671-72. The court
acknowledged that waivers of sovereign immunity must be construed
strictly (855 F.2d at 671), and we read this decis,ion to mean that a
party in federal civil litigation who otherwise would qualify as an EAJA
applicant may be entitled to Rule 11 attorney's fees under appropriate
circumstances. As emphasized in the text, there is no dispute here that
Rushton does not qualify under the EAJA. Furthermore, Adamson does not
address the more difficult question presented in this matter of whether
federal agencies may apply Fed. R. Civ. P. 11 in their administrative
proceedings.

767

On the basis of the present record, we will not disturb the
judge's co~clusion that, if Fed. R. Civ. P. 11 were applicable, this
case would not support the imposition of monetary sanctions against the
Secretary. As the prosecutor under the Act, the Secretary has a duty to
withdraw litigation that, upon further examination, she finds to be
insufficiently founded. Cf. Robert K. Roland v. Secretary, 7 FMSHRC
·630, 635-36 (May 1985). From all that can be gleaned from the existing
record, the Secretary did just that. 21
On the foregoing bases, we conclude that the monetary sanctions
provision of Fed. R. Civ. P. 11 does not apply to Commission proceedings
and that, even if it did apply, the record would not support the
imposition of such sanctions. We therefore affirm the judge's decision
denying Rushton's application.

'

Richard V. Backley, Commisiloner

2_~d.~L

Joyce A. Doy le, co1llffiiSS'(;ner

A LastJka.~

ommissioner

.- '/~,..-Iv

L-<--~

I

',

L. Clair Nelson, Commissioner

21

In view of our determinations, we find it unnecessary to comment
on the judge's construction of the meaning and effect of Commission
Procedural Rules 6 and 80, 29 C.F.R. §§ 2700.6 & .80.

768

Distribution
~oseph A. Yuhas, Esq.
Rushton Mining Company
P.O. Box 367
Ebensburg, Pennsylvania

15931

Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge James A. B.roderick
Federal Mine Safety and Health Review Connnission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

769

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

May 11, 1989
ROBERT SIMPSON
v.

Docket No. KENT 83-155-D

KENTA ENERGY, INC.
and
ROY DAN JACKSON

BEFORE:

Backley, Doyle, Lastowka and Nelson, Conunissioners
DECISION

BY THE COMMISSION:
This discrimination proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)(the "Mine
Act" or "Act"), is on remand to us from an opinion of the United States
Court of Appeals for the District of Columbia Circuit reversing our
prior decision in this matter. Robert Simpson v. FMSHRC, 842 F.2d 453
(D.C. Cir. 1988), rev'g, Robert Simpson v. Kenta Energy, Inc. & Roy Dan
Jackson, 8 FMSHRC 1034 (July 1986). This case involves a discrimination
complaint filed by Robert Simpson alleging that he engaged in a
protected work refusal and that Kenta Energy, Inc. ("Kenta") and Roy Dan
Jackson constructively discharged him and refused to reinstate him in
violation of section,105(c)(l) of the Mine Act. 30 U.S.C. § 815(c)(l).
In a decision on,the merits and a supplemental decision as to Jackson's
personal liability, Conunission Administrative Law Judge James A.
Broderick upheld Simpson's complaint against Kenta and Jackson, and
ordered Simpson reinstated with back pay, interest, attorney's fees, and
litigation expenses. 6 FMSHRC 1454 (June 1984)(ALJ); 7 FMSHRC 272
(February 1985)(ALJ).
Jackson petitioned the Conunission for review, and we reversed the
judge's decisions, concluding that Simpson did not engage in a protected
-work refusal because of a failure to conununicate his safety concerns and
that, in any event, he was not constructively discharged in violation of
the Act. 8 FMSHRC 1034 (July 1986). Simpson appealed to the Court,
which reversed and remanded with instructions to the Conunission to
consider certain issues. In light of the Court's decision, we now
resolve the remanded issues, decide remaining questions not reached in

770

our prior decision given our original disposition, and, on the following
grounds, affirm the judge's decisions.

I.
The facts relating to Simpson's work refusal and the adverse
actions are set forth in our earlier decision and need not be repeated
in detail here. See 8 FMSHRC at 1035-37. Briefly, Simpson, a scoop
operator at Kenta's No. 1 Mine, quit his job in September 1982 because
of safety concerns based on conditions at the mine. Prior to leavlng
work, Simpson failed to communicate those concerns to any supervisory
representative of Kenta. In December 1982, approximately three months
after he quit, Simpson met Roy Dan Jackson, Kenta's President, by
chance, explained the safety concerns that had prompted his action, and
asked for his job back. Jackson refused to rehire him. Shortly before
his encounter with Jackson, Simpson had filed a discrimination complaint
with the Secretary of Labor alleging that his severance of employment
had amounted to a violation of section 105(c)(l) of the Mine Act.
Following investigation of this complaint, the Secretary determined that
no violation of the Act had occurred and Simpson then filed with this
independent Commission his individual discrimination complaint against
both Kenta and Jackson. See 30 U.S.C. §§ 815(c)(2) & (3).
In his decision on the merits upholding Simpson's complaint, Judge
Broderick found that Simpson's decision to leave his job represented a
protected work refusal based on Simpson's reasonable, good faith
concerns for his safety. The judge found that there was no qualified
supervisor to perform required preshift and onshift examinations and
that Simpson believed that they were cutting in the direction of
abandoned works with no test holes being drilled. 6 FMSHRC at 1455-57,
1460. Concerning the requirement in work refusal situations that a
miner communicate his safety concerns to the mine operator prior to or
reasonably soon after his work refusal (see, e.g., Secretary on behalf
of Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126, 133 (February
1982)), the judge found that Simpson had not communicated his safety
concerns to Jackson. The judge excused the failure, however, on the
grounds that Jackson had actual knowledge of the absence of a foreman
and the failure to perform the preshift and onshift examinations and
that communication would have been futile. 6 FMSHRC at 1462. The judge
concluded that Simpson suffered an adverse action, a constructive
discharge, because Simpson was subjected to working conditions so
intolerable that he was forced to quit. 6 FMSHRC at 1460-61. The judge
found that although Kenta and Jackson were not motivated to maintain the
intolerable working conditions because of Simpson's protected activity,
their motivation was not determinative as to whether discrimination had
occurred. 6 FMSHRC at 1461. The judge further determined that
Jackson's failure to rehire Simpson also violated section 105(c) of the
Act. 6 FMSHRC at 1457, 1462-63, 1464. With regard to the latter
finding, the judge rejected the operator's defense that Simpson would
have been laid off in any event for economic reasons in January or
February of 1983. 6 FMSHRC at 1462, 1463.
At the conclusion of his decision on the merits, the judge
directed further proceedings to resolve the question of whether

771

respondent Jackson was personally liable for the discriminatory acts in
issue. 6 FMSHRC at 1464. The judge ordered Simpson to "file a
statement explaining with particularity the legal basis of his claim
against Respondent Jackson, and the evidence it expects to produce to
establish that claim." Id. On June 27, 1984, Simpson submitted a
Statement of Claim, essentially basing his assertion of Jackson's
personal liability on doctrines of piercing the corporate veil and alter
ego. On July 30, 1984, the judge issued an Order Permitting Further
Discovery and Notice of Hearing. In part, the order dealt with
Simpson's contention that Jackson should be held personally liable for
the discrimination in question:
Jackson's liability in this case depends upon
whether he was the "person" who discharged
Complainant in violation of section 105(c)(l) of the
Act. This question may be related to the further
question whether Jackson was the "operator" (defined
in section 3(d) of the Act) of the subject mine.
The questions whether Jackson was the alter ego of
Kenta and whether Kenta's corporate veil may be
pierced are important insofar as they may bear on
the first question set out above.
Order 2. In his February 1985 remedial decision, the judge concluded
that Jackson was, in reality, the "operator" of the mine at all relevant
times and found Jackson personally liable for the unlawful
discrimination at issue. 7 FMSHRC at 273-78. The judge directed
Simpson's reinstatement, the award of some $36,000 in back pay and
interest, and payment of some $57,000 in attorney's fees and expenses.
7 FMSHRC at 286.
Jackson filed a Petition for Discretionary Review; Kenta did not.
In his petition, Jackson challenged the judge's central conclusions with
respect to Simpson's work refusal, the communication issue, and the two
instances of discrimination. Jackson also assigned as error the judge's
finding that Simpson would not have been laid off for economic reasons
and further claimed that the judge committed a prejudicial error of
procedure "by first establishing a procedure for trying the issue of
Jackson's personal liability wherein Simpson framed the specific legal
basis for his claims against Jackson and then issuing his [remedial]
order on matters not specified by Simpson." PDR 15-17. Jackson raised
no issues concerning the back pay or attorney's fees determinations.
In our decision reversing the judge, we held that the judge erred
in concluding that Simpson had engaged in a protected work refusal and
that Simpson had been subjected to a discriminatory constructive
discharge and failure to rehire. 8 FMSHRC at 1038-41 & n.4. With
respect to the work refusal issue, we agreed with the judge that Simpson
had a good faith, reasonable belief in hazardous conditions. 8 FMSHRC
at 1038. However, focusing on the requirement that a miner communicate
to the operator his health or safety concerns, we concluded that
Simpson, without any showing of good reason, had failed to communicate
such concerns "to anyone in authority prior to quitting his job on
September 20, or even reasonably soon thereafter." 8 FMSHRC at 1039.

772

We rejected the judge's finding (6 FMSHRC at 1462) that any such
conununication.by Simpson would have been futile: "Even assuming, as the
judge did, that Jackson was aware of the absence of a foreman and the
failure to conduct the required pre-shift and on-shift examinations, we
cannot presume that Jackson would have taken no action had Simpson
conununicated his concerns to Jackson." 8 FMSHRC at 1039-40.
In addressing the constructive discharge issue, and assuming
arguendo that Simpson had engaged in protected activity, we stated that
"in order to establish a successful claim of constructive discharge, the
miner must show that in retaliation for protected activity by the miner
the operator created or maintained intolerable working conditions in
order to force the miner to quit." 8 FMSHRC at 1040, citing Rosalie
Edwards v. Aaron Mining, Inc., 5 FMSHRC 2035, 2037 (December 1983). We
found "no evidence in this record that Kenta or Jackson were motivated
to create or to maintain the conditions about which Simpson was
concerned because of the exercise by Simpson of any rights protected by
the Mine Act." 8 FMSHRC at 1040-41. Accordingly, we concluded that
Simpson had not been constructively discharged in violation of the Act.
In addition, we found insufficient record support for, and
therefore reversed, the judge's additional conclusion that the failure
to rehire Simpson constituted a further violation of section 105(c) of
the Act. 8 FMSHRC at 1041 n.4. We also denied a motion filed on review
by Simpson to reopen the proceedings to determine whether the Black Joe
Coal Company was a legal successor to Kenta and, hence, liable for
Kenta's alleged discrimination. 8 FMSHRC at 1041. Simpson had asserted
that the judge's finding as to Kenta's liability was final and not
subject to review insofar as Kenta was concerned because Kenta had not
petitioned the Conunission for review of the judge's decision. We
stated:
In his petition for review Jackson raised the
central issue of whether Simpson was discriminated
against in violation of the Act. We have concluded
that no discrimination occurred in conjunction with
Simpson's leaving the job. Because there is no
violation of the Act, there is no liability on
behalf of any respondent. In these circumstances,
Simpson's argument that he had a binding judgment
against Kenta because Kenta did not separately seek
review is rejected. See, e.g., Arnold Hofbrau, Inc.
v. George Hyman Construction Co., Inc., 480 F.2d
1145, 1150 (D.C. Cir. 1973).
Id.
Given our disposition of the case, we did not address the issues
of whether Simpson would have been laid off in any event and whether the
judge conunitted a prejudicial procedural error in the supplemental
remedial proceedings.
In its opinion reversing our decision, the Court approved in
general terms the Conunission's Fasula/Robinette work refusal doctrine

773

(2 FMSHRC 2_786 (October 1980); 3 FMSHRC 803 (April 1981), respectively).
842 F.2d at 458. The Court also specifically endorsed the Commission's
Dunmire & Estle communication requirement in work refusal situations
(4 FMSHRC 126 (February 1982)). 842 F.2d at 459.
With regard to the subject of communication in a work refusal
context, the Court noted that Simpson argued that the futility of
communication issue was one of fact and that the Commission had
impermissibly substituted its own view of the facts for that of the
judge, while Jackson argued that the futility issue was one of law.
842 F.2d at 459..:60. The Court opined that the "Commission's decision
sheds little light on this [factual v. legal] aspect of the dispute."
842 F.2d at 460. The Court quoted the Commission's discussion of
futility (8 FMSHRC at 1039-40), and stated that it could not determine
"whether the Commission meant to reject the legal standard applied by
the ALJ, or, alternatively, whether the Commission simply regarded the
ALJ's finding of futility as a fact determination that lacked adequate
record support." Id. The Court suggested that the Commission's
decision "could be~ead to maintain that there was substantial evidence
only for a finding of 'possible operator awareness of a hazard,'
[8 FMSHRC at 1040], and not for the conclusion that notice would have
been futile." Id.
The Court then engaged in its own evidentiary analysis, in which
it concluded that substantial evidence supported the judge's findings
"not only that Jackson was aware of conditions at the mine but also that
he would have been unresponsive to any worker complaints about them."
842 F.2d at 460-61. However, the Court stopped short of totally
disposing of this issue because it felt that the Commission's decision
may have been based on "an unarticulated conclusion that, as a matter of
law, futility in· this context requires some showing beyond what the term
means in common parlance, a showing Simpson may not have made."
842 F.2d at 461 (emphasis added). The Court accordingly remanded the
issue to us in the following terms: "We therefore remand the
communication issue to the Commission for reconsideration, and for a
clear explanation of why the futility exception should or should not
apply to the facts of this case." 842 F.2d at 461.
The Court next examined the constructive discharge issue, noting
that "(a]ll parties apparently agree that if the work refusal was
protected, a constructive discharge would have amounted to unlawful
discrimination ...• " 842 F. 2d at 461. Relying on Clark v. Marsh,
665 F.2d 1168 (D.C. Cir. 1981), a Title VII discrimination case, the
Court distinguished between its own, preferred "objective" standard
governing constructive discharges, and what it described as the
Commission's "subjective," motivation-based standard. 842 F.2d at 46163. The Court approved the "objective" constructive discharge standard
for Mine Act purposes. Id. The Court viewed the objective standard as
requiring a showing that "an operator created or maintained conditions
so intolerable that a reasonable miner would have felt compelled to
resign." 842 F. 2d at 461. The Court attached weight to the fact that
the Commission had recognized that respondents' "blatant violations of
the Mine Act" had led to Simpson's leaving his job. 842 F.2d at 463.
The Court concluded its examination by asserting in effect that there

774

was no question that conditions were intolerable at the Kenta No. 1 Mine
and justified Simpson's work refusal. The Court then stated that
resolution of the case therefore turned on whether Simpson's work
refusal was protected -- the primary subject of remand. 842 F.2d
at 463.
Finally, the Court addressed the operator's failure to rehire and
the motion to reopen. Regarding failure to rehire, the Court observed
that if "Simpson's September work refusal was unprotected, the
Commission's ruling [on rehire] would be sound, because the
discrimination prohibited by the Mine Act requires some nexus to
protected activity." 842 F.2d at 464. On the other hand, i f "Simpson's
work refusal was protected by the Mine Act, the evidence .•. would have
supported the ALJ's finding that the refusal to rehire was based on
protected activity, in violation of section lOS(c)(l)." Id.
The Court's treatment of the Commission's disposition of Simpson's
motion to reopen turned on the fact that Kenta had not separately sought
review of the judge's decision. The Court regarded the Commission's
disposition of that issue as amounting to a "vacation" of the judgment
against Kenta, apparently not subscribing to the Commission's view,
based on the Court's decision in Arnold Hofbrau, supra, that a finding
of no liability at all in this matter would operate to relieve Kenta
(and its successors) of liability under the judge's decision. The Court
stated:
The Commission's return to the merits of Simpson's
case obviously may compel a return to this last
holding, so we note at this point only the
questionable consistency of the Commission's action
vacating the judgment against Kenta Energy with its
review authority. See .•• 30 U.S.C. 9 823(d)
(limiting the grounds for discretionary review by
the Commission, and denying authority to "raise or
consider additional issues" not presented by the
petition for review).
842 F.2d at 464.
II.

We first address the specific issues that the Court remanded to
the Commission, and then resolve the two questions remaining from the
original proceeding on review.
A.

Issues on remand
1~

Futility of communication

The Court stated that our determination regarding futility of
communication may have been based on our "conclusion that, as a matter
of law, futility in this context requires some showing beyond what the
term means in common parlance." 842 F.2d at 461. Such is not the case.

775

The Court specifically approved our statement of the conununication
requirement associated with the right to refuse work as set forth in
Dunmire and Estle, supra. In that decision, we held:
Where reasonably possible, a miner refusing work
should ordinarily communicate, or at least attempt
to communicate, to some representative of the
operator his belief in the safety or health hazard
at issue. "Reasonable possibility" may be lacking
where, for example, a representative of the operator
is not present, or exigent circumstances require
swift reaction. We also have used the word,
"ordinarily" in our formulation to indicate that
even where such communication is reasonably
possible, unusual circumstances -- such as futility
-- may excuse a failure to communicate. If
possible, the communication should ordinarily be
made before the work refusal, but, depending on
circumstances, may also be made reasonably soon
after the refusal.
4 FMSHRC at 133 (emphasis added).
As the Court recognized (842 F.2d at 460), Dunmire and Estle
stands for the general proposition that communication issues should be
resolved "in a common sense, not legalistic manner." 4 FMSHRC at 134.
Accordingly, we do not view the futility exception to the communication
requirement as a technical or restrictive concept. Rather, futility in
this context is based on the common meaning of the term and covers
situations in which a miner's communication of a health or safety
concern would be ineffecti,re or useless. See generally Webster's Third
New Int' l Dictionary (Unabridged) 925 (1986 ed.-)(definitions of "futile"
and "futility"). If genuine futility is present, a miner's failure to
communicate may be excused. Such a situation may occur, for example,
where a mine operator has made clear that it will not address complained
of hazards or where the operator has manifested "evident disdain for
worker complaints" (842 F.2d at 460).
Our earlier resolution of the futility issue was based on factual,
not legal, grounds and meant only that we discerned a lack of
substantial evidentiary support for what we viewed as the judge's
"presumption" that conununication with Jackson would have been futile.
See 8 FMSHRC at 1039-40. The court, however, has concluded that there
is adequate record support for the judge's findings that Jackson was
aware of the conditions at the mine and would have been unresponsive to
worker safety complaints about those conditions. 842 F.2d at 460-61.
Within the proper meaning of the Dunmire and Estle futility exception as
explained above, the Court has effectively held that Simpson's failure
to communicate is excused. In light of the Court's factual determinations, we so hold as well. Given our prior finding that Simpson's
work refusal was based on a reasonable, good faith belief in a hazard
(8 FMSHRC at 1038), we conclude that Simpson engaged in a protected work
refusal under the Mine Act.

776

2.

Constructive discharge

The Court, agreeing with the judge, held that to establish a
successful claim of constructive discharge under the Mine Act, a miner
·must show that the operator maintained conditions so intolerable that a
reasonable miner would have felt compelled to quit. 842 F.2d at 461-63.
Noting our statement that "blatant violations of the Mine Act" existed
at the mine prior to Simpson's work refusal (8 FMSHRC at 1038), the
Court observed that such conditions "see[m] to preclude [the
Commission's] rejection of the ALJ's finding [that· the operator
maintained conditions so intolerable that a reasonable miner would have
felt compelled to quit]." 842 F.2d at 463. Given the Court's
disposition of this issue, we are constrained to conclude in this case
that Simpson established that he was subjected to constructive discharge
in violation of section 105(c)(l) of the Act.
3.

Refusal to rehire

Given our disposition of the work refusal and constructive
discharge issues, we additionally conclude that the refusal to rehire
Simpson after he quit also constituted an act of unlawful
discrimination. We had reversed the judge on this issue, finding
insufficient record support for his conclusion to the contrary. The
Court stated, however, that "[i]f Simpson's work refusal was protected
by the Mine Act, the evidence . . . .would have supported the ALJ' s finding
that the refusal to rehire was based on protected activity in violation
of section 105(c)(l)." 842 F.2d at 464. In view of the Court's
analysis of the relevant evidence, ,we accordingly adopt the Court's view
and conclude that the refusal to rehire also violated the Act.
4.

Simpson's motion to reopen

On review before the Commission, Simpson had moved to reopen the
proceedings to determine whether Black Joe Coal Company was the legal
successor to Kenta and should assume Kenta's liability to Simpson. We
originally denied this motion in view of our conclusion that no
violation of the Act had occurred. As noted, Kenta did not seek
Commission review of the judge's decision. In the Court's apparent
view, Kenta's failure to petition for review meant that, pursuant to
operation of the statute, the judge's decision with regard to Kenta
became a final decision of the Commission on April 7, 1985, 40 days
after its issuance. 30 U.S.C. § 823(d)(l). No party sought review of
that "portion" of the judge's decision in a United States Court of
Appeals. 30 U.S.C. § 816(a). Under these circumstances, the Court
appears to have treated the judge's decision as to Kenta as a final
judgment that we lacked authority to review or "vacate." See 842 F.2d
at 464. We adopt in this case the Court's view in that regard.
Therefore, Simpson must be regarded as having received a final judgment
holding Kenta liable to Simpson for the discriminatory acts at issue and
for the relief ordered by the judge.
Simpson's motion to reopen alleges generally that Kenta went out

777

of business and did not reinstate Simpson or pay him back pay, and that
Black Joe Coal Company is Kenta's successor for purposes of Mine Act
liability and should be held liable to remedy the respondents'
discrimination. In Ronald Tolbert v. Chaney Creek Coal Corp., 9 FMSHRC
1847 (November 1987·), we denied a similar motion to reopen a "final
judgment" on the grounds that the relief sought was in the nature of
enforcement of judgment and collection of a judgment debt and that such
an enforcement request is properly directed to the Secretary of Labor,
who is authorized pursuant to sections 106(b) and 108 of the Mine Act,
30 U.S.C. §§ 816(b) & 818, to seek compliance with Commission orders in
the federal courts. 9 FMSHRC at 1848. We subsequently made clear that
if the Secretary declines to act in enforcement, all other remedies
(including any remedies available in state courts) may be pursued.
Danny Johnson v. Lamar Mining Co., 10 FMSHRC 506, 508-09 (April 1988).
Accordingly, we deny Simpson's motion to reopen. Simpson may
pursue his appropriate enforcement remedies elsewhere. We have today
confirmed that his judgment against Kenta is final. There is no serious
legal question that a Commission judgment may be enforced against a
genuine successor. See generally Secretary on behalf of Corbin v.
Sugartree Corp., 9 FMSHRC 394 (March 1987), aff'd sub nom. Terco v.
FMSHRC, 839 F.2d 236 (6th Cir. 1987), pet. for cert. den., _ _ U.S.
_ _ , 102 L.Ed 2d 36 (1988). We note that questions of successorship
frequently arise in the context of enforcing judgment~. See, e.g.,
Christiansen v. Mechanical Contractors Bid Dep·ository, 404 F. 2d 324, 325
(10th Cir. 1968) (proceedings for execution upon a judgment pursuant to
Fed. R. Civ. P. 69). Thus, the Secretary on Simpson's behalf or
Simpson, as the case may be, may seek enforcement of his claims in any
proper enforcement forum.
B.

Additional Issues

As noted, two issues were not decided in our original opinion
given the other results that we reached. We now resolve those
questions, both of which were previously briefed to us on review by the
parties.
1.

The layoff issue

Before the judge, Kenta had argued as a defense to the allegations
of discriminatory discharge and refusal to rehire that "because of a
recession in the coal business, [Simpson] would have been laid off in
any event and that he was not rehired in December (1982] because there
was no job for him." 6 FMSHRC at 1462. The judge rejected this
defense, stating that "[t]he evidence does not show that [Simpson] would
have been laid off for economic reasons." 6 FMSHRC at 1463. On review,
Jackson argues that the judge erred in finding that Simpson would not
have been laid off for economic reasons. The evidence in the record
establishes that certain layoffs did occur at the mine in January or
February 1983, after the December 1982 refusal to rehire Simpson.
Therefore, given our conclusion above that the refusal to rehire was in
violation of the Act, we view Jackson's and Kenta's assertions that
Simpson would have been laid off in any event as a defense to the
judge's order of reinstatement and award of back pay and interest.

778

In general, once discrimination has been found and a gross amount
of back pay alleged, "the burden is on the employer to establish facts
which would negative the existence of [backpay] liability to a given
employee or which would mitigate that liability." NLRB v. Madison
Courier, Inc., 472 F.2d 1307, 1318 (D.C. Cir. 1972), quoting NLRB v.
Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963). Specifically,
the burden of showing that work was not available for a discriminatee,
whether through layoff, business contractions, or similar conditions,
lies with the employer as an affirmative defense to reinstatement and
backpay. See, e.g., NLRB v. Mastro Plastics Corp., 354 F.2d 170, 175-77
(2d Cir. 1965), cert. den., 384 U.S. 170 (1966). Cf. Secretary of Labor
v. Metric Constructors, Inc., 6 FMSHRC 226, 232-33 (February 1984),
aff'd, 776 F.2d 469 (11th Cir. 1985) (operator bears burden of proof
with respect to willful loss of earnings by back pay claimant). Thus,
at trial the burden was on respondents to establish by a preponderance
of the evidence Simpson's probable layoff as an affirmative defense to
his claims for reinstatement and back pay.
Judge Broderick concluded that respondents had not carried their
burden of proof. The evidence on the subject was provided by the
testimony of Jackson himself. Initially, Jackson testified that he had
laid off two miners after Simpson left; that the mine was not "running
much coal" and that he had been required to "cut the crew down real
small;" that other miners in his crew were more experienced than
Simpson; and that he would "lay the youngest men off first." Tr. 609,
611-12, 614-16. In response to subsequent questioning by Judge
Broderick, Jackson further stated that he "guess[ed]" that the two
miners he had laid off were let go in January or February 1983; that
they were "the youngest people [he] had"; that he "guess[ed]" that they
had more seniority than Simpson; that he "guess[ed]" that "most" of the
miners had more seniority than Simpson; that layoffs were also based on
"job qualification"; and that one of the two laid off miners "might
have" qualified for Simpson's scoop operator's job while the other would
not have. Tr. 654-55. Significantly, Jackson testified that he did not
always base layoff decisions on seniority, at times basing such
decisions on the size of a miner's family and upon job qualifications.
Tr. 315-16, 655.
The judge weighed the respondents' evidence and found it lacking.
Jackson's testimony lacks specificity as to how seniority was
calculated. It also lacks certainty as to the seniority of the two laidoff miners or the retained miners in relation to Simpson, and as to how
"job qualification" and family considerations figured into Jackson's
decisions regarding layoffs. Further, the respondents did not introduce
seniority lists or business records explaining the layoff decisions or
the effects of the alleged recession on the mine's 'operation.
The record evidence also shows that another miner, Roy Gentry, a
former bolting machine operator, replaced Simpson as scoop operator
after Simpson left. Gentry Dep. 3. This fact lessens the weight to be
accorded Jackson's assertion that he had not hired any scoop operators
to replace Simpson; apparently, he did not have to. There is no
evidence of record as to how Simpson's incumbency in the scoop position
would have been affected had he not left work. The respondents bore the

779

burden of proving that Simpson would have been laid off and we conclude
that they failed to carry that burden.
2.

The procedural objection

At the outset, it is important to clarify that Jackson is not
claiming that there was a lack of notice or a procedural error in trying
the question of his personal liability nor is he attacking on the merits
any of the judge's substantive findings with regard to his personal
liability. Jackson contends only that in concluding Jackson was an
"operator" and personally responsible for the discrimination in
question, the judge went beyond Simpson's supplemental statement of
claim, which framed the issue of Jackson's liability in terms of
piercing the corporate veil and alter ego. We find this objection
semantic and without merit.
The discrimination complaint and trial (~ Tr. 344-45) made clear
that Simpson was pursuing Jackson as a co-respondent on theories of
personal liability. Simpson's argument that the corporate veil should
be pierced to show that Jackson was the alter ego of Kenta was simply
another way of stating that Jackson was the real "operator," the real
"person" in control of the personnel actions at the mine. The point of
this approach was to show that Jackson should not be permitted to "hide"
behind the corporate veil. We find Simpson's statement of claim
reasonably clear in this regard. For example, at pp. 9-10 of the claim,
Simpson asserts that "[f]rom this evidence it is clear that Jackson was
the operator of the [mine] ... [and] that corporate formalities were not
observed . . . . Jackson was the alter ego of Kenta." In other words, any
evidence as to corporate control was relevant only to the extent that it
clarified Jackson's status as an "operator" and·his personal
responsibility for the events at issue.
The judge's order of July 30, 1984, also made the nature of this
issue reasonably clear. If the respondents were aggrieved by the
judge's characterization of the question, they should have objected in a
timely fashion to the judge himself -- a course they did not follow. In
view of this, Jackson cannot be heard on appeal to complain that he was
deprived of notice or prejudicially misled by Simpson's pleadings.
Accordingly, we reject this procedural objection.

780

III.

In sum, on the bases articulated above, we affirm the judge's
conclusions that Simpson engaged in a protected work refusal and that
Kenta and Jackson violated the Act when Simpson was discharged and
refused rehire. We confirm the viability of Simpson's final judgment
against Kenta. We deny Simpson's motion to reopen. Simpson may pursue
all appropriate remedies for enforcement of the final judgment against
Kenta. We affirm the judge's finding that respondents failed to prove
that Simpson would have been laid off, and we reject the procedural
challenge to the judge's actions below. Accordingly, Judge Broderick's
decisions are affirmed. lf

Richard V. Backley,

L. Clair Nelson, Commissioner

lf

Chairman Ford did not participate in the consideration or
disposition of this matter.

781

Distribution
Tony Oppegard, Esq.
Steven Sanders, Esq.
Appalachian Research & Defense
Fund of Kentucky, Inc.
P.O. Box 360
Hazard, Kentucky 41701
David T. Smorodin, Esq.
Steven D. Cundra, Esq.
Thompson, Hine & Flory
1920 N Street, N.W.
Washington, D.C. 20036
Dennis D. Clark, Esq.
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

782

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

May 30, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

)
)
)

)
)

v.

TENNESSEE CHEMICAL, INC.
BEFORE:

)
)
)
)

Docket No. SE 85-63-M

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

BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982) ("Mine Act"
or "Act"), Commission Administrative Law Judge William Fauver concluded
that Tennessee Chemical Company ("Tennessee Chemical" or "operator")
violated 30 C.F.R. § 57.3-20 (1984), a standard addressing the use of
ground support in underground metal and nonmetal mines. We granted
Tennessee Chemical's petition for discretionary review. On the bases
that follow, we affirm.
Tennessee Chemical operates an underground copper mine near Copperhill, Tennessee (the "Cherokee Mine") employing approximately 200 miners,
working three eight-hour shifts per day, seven days a week. Copper and
iron sulfide ore are mined using the sublevel stoping method. This case
arose as a result of a fall of ground in a development tunnel. Development work (i.e., excavating tunnels for haulageways and travelways) was
performed by crews who drilled blast holes into the tunnel face and back, 1/
set charges, blasted the rock, scaled the back, and removed the rock from
1/
"Back", defined as "[t]he roof or upper part in any underground
mining cavity" is generally considered the metal/nonmetal counterpart to
the term "roof" in coal mines. "Fall of ground" or "rockfall" refer to
"[r]ock falling from the roof into a mine opening." Dictionary of Mining,
Mineral, and Related Terms 70, 410, 934 (1968).

783

the blast area. This development cycle would then be repeated. The crews
were paid an incentive rate based on the number of feet they advanced the
tunnel. The drilling was performed with the use of a three-boom pneumatic
drill described as a "Jumbo." The holes were drilled and blasted on close
centers in the back to provide a "smooth wall" that extended about 20 feet
from the face. A "smooth wall" is a lip or brow intentionally left in the
back after an explosion. Rock bolts were installed in the back on an "as
needed" basis. Each development crew, working under the supervision of a
development foreman, was to examine and scale the back in its own work
places and to bolt, unless a large area needed bolting in which case a
separate bolting crew would perform that work.
Shortly before September 14, 1984, the development drift involved
in this case (referred to as the 14 N 33) had been down for eight shifts
because of adverse ground conditions. Rock bolts were installed up to
the edge of the smooth wall and this work was completed on September 13.
The bolter who performed this work, Mark Richards, installed an extra row
of bolts at one place because he heard popping noises in the back and saw
small bits of rock falling from it. Richards also bolted an area around
a small bore hole in the drift, after Gary Williams, general mine foreman,
ordered that it be bolted due to dangerous ground conditions in the area.
On September 14, 1984, Steve Dillard and Joshua Waters, development
drillers, began working a shift that started at 3:00 p.m. They were
working with Frank Wright, development loader operator, in the 14 N 33
drift, where they were tunneling a 16 by 18 foot opening to be used as
a truck haulage road. The development foreman for their shift was
Cleaston Morrow.

When Dillard, Waters, and Wright arrived at the 14 N 33 drift with
Hayden Stiles, equipment operator, they found that ·the heading had to he
"mucked out," that is previously blasted rock left by the day shift
development crew had to be removed. After blasting, it was the development crew's job to examine and scale the back, following which the loader
operator would then commence mucking. Once that was completed, the cycle
would be repeated. Dillard, Waters, and Stiles began scaling loose rock
from the back while Wright went to get a loader to muck out the rock.
Wright returned with the loader and Dillard told him the area was ready
to be mucked. Wright and Stiles proceeded to muck out the area, and
Dillard and Waters left the area. Most of the area had been mucked when
a rock measuring about two feet wide by four feet long fell from the
back, inby the last -row of bolts, landing in front of Wright's loader.
Wright was frightened by the event as his loader had passed under the
area where the rock fell. He also was angered because Dillard had told
him the area had been scaled.
After the fall of ground, Wright backed his loader into the N-28 crosscut and told Stiles what had happened. Wright then got into the dipper
of Stiles' loader so he could reach the back and scale it with a scaling
bar. Wright and Stiles scaled "quite a bit" of loose material, and then
finished mucking the area. When that was completed Wright went to the
office/lunchroom where he saw Dillard, Waters, and their foreman, Morrow.

784

Wright confronted Dillard because of the rock fall and the loose ground
that had not been scaled. Wright also warned Dillard that some back had
"blowed up." (This term refers to a bad ground condition signaling the
potential danger of a fall; "blowing", as it is called, may include
popping noises, cracking or the falling of fine pieces of material called
fines or scales.) When Dillard and Waters returned to the drift they did
no further scaling of the back, although they did scale the floor of the
tunnel. They then began drilling holes in the tunnel face with the Jumbo
when a rock six feet eight inches long, four feet ten inches wide and four
to five inches thick fell from the back striking both of them while they
were at the controls of the Jumbo. The rock killed Dillard and permanently injured Waters. At the time of the fall the men were approximately seven and one-half feet beyond the last bolted area.
On the following morning, MSHA inspectors Frank Holiway and Eugene
Mouser began an investigation. They inspected the 14 N 33 drift and interviewed mine officials and employees. As a result they issued a citation
on September 15, 1984, charging a violation of 30 C.F.R. § 57.3-22. 2/
Almost two years later, on August 18, 1986, the citation was modified to
instead allege a violation of section 57.3-20, which provided:
'M..anda tory.
Ground support shall be used if the operating experience of the mine, or any particular area of the
mine, indicates that it is required. If it is required, support, including timbering, rock bolting,
or other methods shall be consistent with the nature
of the ground and the mining method used. 3/
2/

30 C.F.R. § 57.3-22 (1978) provided:
Mandatory. Miners shali examine and test the back,
face, and rib of their working places at the beginning of
each shift and frequently thereafter. Supervisors shall
examine the ground conditions during daily visits to
insure that proper testing and ground control practices
are being followed. Loose ground shall be taken down
or adequately supported before any other work is done.
Ground conditions along haulageways and travelways
shall be examined periodically and scaled or supported
as necessary.

3/
Although we are construing § 57.3-20 as i t appeared in 1984 we note
that the standard has since been revised and renumbered and now provides:
Scaling and Support - Underground Only
§

57.3360 Ground support use.

Ground support shall be used where ground conditions,
or mining experience in similar ground conditions in
(Footnote continued)

785

A hearing was held before Judge William Fauver on April 14 and 15,
1987. In his decision the judge affirmed the citation and assessed a
$7,500 civil penalty.
In finding that Tennessee Chemical violated section 57.3-20 the judge
first construed the standard, focusing upon the term "operating experience."
The judge held "that 'operating experience' sufficient to indicate the need
for roof support does not have to be at the point of an immediate danger of
a roof falling, but includes [the] danger of a potential roof fall."
10 FMSHRC at 377. The judge also considered a prior fall of ground fatality
at the Cherokee Mine as part of the mine's operating experience. 10 FMSHRC
at 387.
Crediting and relying upon the testimony of MSHA supervisor M. Turner
and inspectors Holiway and Mouser, the judge found that the areas of loose
rock viewed by those individuals after the Dillard fatality existed prior
to that event and were not caused by the fall of ground. The judge further
concluded that the 14 N 33 drift had poor ground conditions, was dangerous,
and needed support where Dillard and Waters had been working. 10 FMSHRC at
378. The judge rejected Tennessee Chemical's position that the fall of
ground was a surprise and that it had an effective "layered" ground control
system under which miners, front-line supervisors, and upper management
all played a role in monitoring and controlling ground conditions. On
this point the judge found that there was a breakdown in communication on
each of these levels. 10 FMSHRC at 382, 387.
The first issue raised by Tennessee Chemical on review is whether it
was reversible error for the judge to consider a prior fatality as part of
the mine's "operating experience," as that term is used in § 57.3-20.
The prior fatality considered by the judge occurred on January 27,
1984, when Ted Ledford, a development driller like Dillard and Waters, was
killed while operating a Jumbo drill at the Cherokee Mine. Although the
Ledford fatality occurred in a different drift, like the instant case, the
miner was killed while drilling blasting holes into the face and a large
rock fell from the back. MSHA investigated the Ledford fatality but did
not issue any citations or orders for violation of safety standards. The
MSHA investigation concluded in a report issued February 22, 1984, that
the cause of the accident was the failure of management and employees to
Fn. 3/ continued
the mine, indicate that it is necessary. When ground
support is necessary, the support system shall be
designed, installed, and maintained to control the
ground in places where persons work or travel in performing their assigned tasks. Damaged, loosened, or
dislodged timber use (sic) for ground support which
creates a hazard to persons shall be repaired or replaced prior to any work or travel in the affected area.
30 C.F.R. § 57.3360 (1988).

786

detect loose ground. Exhibit P-6. 10 FMSHRC at 372, 373. MSHA also
believed that a contributing cause may have been that vibrations from the
Jumbo drill may have loosened unstable ground. The report contained
recommendations that supervisors review proper ground control procedures
with the miners and that overhead protection be provided on all mobile
equipment where feasible. MSHA further advised in the report that to
prevent future rock fall accidents there must be continued surveillance
of day-to-day ground conditions and continual scaling of the back and
ribs. Id.
The judge observed that in its investigative report of the Dillard/
Waters accident MSHA made the same findings as to the cause of the
accident and repeated its earlier recommendations. 10 FMSHRC at 372-374.
The Dillard report also recommended that, where necessary for ground
support, rock bolting should be as near to the face as possible. Id.
Tennessee Chemical contends that it was reversible error for the
judge to consider the Ledford fatality as part of its operating experience
and asserts that operating experience should not encompass prior incidents
that are free of operator culpability. Since MSHA did not issue any citation in connection with the Ledford fatality, Tennessee Chemical contends
that it had been exonerated of any culpability. Therefore, according to
Tennessee Chemical, consideration of this incident in the present proceeding subjects it to double jeopardy.
The Secretary contends that the Ledford fatality is relevant to
Tennessee Chemical's operating experience within the meaning of 57.3-20
and that it is also relevant to the issue of Tennessee Chemical's
negligence. The Secretary notes that the judge also evaluated the conditions in existence in the 14 N 33 drift prior to and at the time of the
Dillard/Waters incident as part of the mine's operating experience apart
from the Ledford fatality.
We hold that it was proper for the judge to consider the Ledford
fatality, as well as the events occurring in the 14 N 33 drift in the
days preceeding the Dillard/Waters incident, as part of Tennessee
Chemical's operating experience within the meaning of section 57.3-20.
As noted hy the judge, the Commission has previously interpreted the
standard in issue. In White Pine Copper Range Company, 5 FMSHRC 825 (1983),
("White Pine") we observed that the dictionary definition of the key word
"exper.ience" included "practical wisdom resulting from what one has
encountered, undergone, or lived through" and that "a mine's 'operating
experience' broadly encompasses all r~levant facts tending to show the
condition of the mine roof in question and whether, in light of the roof
condition, roof support is necessary." White Pine, 5 FMSHRC at 836.
We further observed that operating experience is determined by looking
at the mine's prior operating history and present day experience and
that "this determination takes into account the operating history of
the mine (i.e., its past mining practice) geological conditions,
scientific test or monitoring data and any other relevant facts tending
to show the condition of the mine roof in question and whether in light
of those factors roof support is required in order to protect the miners
from a potential roof fall." Id. at 838.

787

While the Ledford fatality occurred in January 1984 in a different
drift, it shared the following commonalities with the September 1984
Dillard fatality: development work was being performed; the victims
were drilling blasting holes into the face with a Jumbo drill; loose
ground had been neither adequately scaled nor bolted; the victims were
working under an unbolted area; and a large rock fell from the unbolted
area causing the fatal injury. 10 FMSHRC at 372.
We view these common factors as sufficient to bring the Ledford
fatality within the scope of the term "operating experience." Indeed
the operator does not attempt to distinguish the circumstances surrounding
the two fatalities. Instead, Tennessee Chemical raises only a "fairness"
objection to consideration of the Ledford fatality.
To ignore the operator's previous experience simply because no violations had been alleged would place a severe limitation upon what would
otherwise be considered a part of operating experience. Since the
White Pine test for "operating experience" takes an inclusive approach
allowing consideration of all relevant facts, Tennessee Chemical's argument
that operating experience should be tied to culpability is inconsistent
with that precedent.
While the operator asserts that this amounts to "double jeopardy",
we reject that argument for several reasons, chief among them being that
the concept is limited to situations where a defendant has been punished
in a prior criminal proceeding and the Government is now seeking a second
punishment for the same offense. United States v. Halper, 57 U.S.L.W.
4526 (U.S. May 16, 1989)(No. 87-1383); 21 Am. Jur. 2d Criminal Law§ 244,
249. Here, there was no prior criminal proceeding. The Secretary is not
seeking a civil penalty in connection with the Ledford fatality, nor is
she seeking to litigate the facts surrounding that event. The Ledford
fatality accident report was introduced only to show that the event was
part of the mine's operating experience.
We also find no basis for Tennessee Chemical's assertion that the
judge based his finding of a violation upon the Ledford incident. The
judge clearly relied upon a great deal of other information about the
conditions in the 14 N 33 drift in concluding that Tennessee Chemical's
operating experience was such that it should have known that ground
support was needed. The judge recounted the following as part of
Tennessee Chemical's ground support operating experience:
Shortly before the Dillard fatality the 14 N 33 drift had been down
for eight shifts due to adverse ground conditions. Extra rock bolts were
installed up to the edge of the smooth wall and this was completed on
September 13, 1984. 10 FMSHRC at 371; Tr. 308, 309, 312, 315, 319, 324,
344, 482, 483. Rock bolter M. Richards testified that he installed these
bolts and that he put in an extra row of bolts due to popping noises in
the back and fines falling from the back. 10 FMSHRC at 378; Tr. 315,
318, 319. On or about September 13, 1984, Richards also bolted around
a small bore hole which was located 15 feet from the place where Dillard
was killed. This bolting .was ordered by the general mine foreman, G.
Williams, because of the dangerous ground conditions. 10 FMSHRC at 371;

788

Tr. 310-312. Prior to the Dillard fatality Richards told his supervisor,
L. Hicks, o.f the dangerous ground conditions he encountered. 10 FMSHRC
at 371; Tr. 324, 325, 326.
Tennessee Chemical's manager of mining, A. Edey and Dr. Ross Hammet,
a mining engineer consultant, testified that noise in the back and falling
of small and large rocks as well as the necessity of installing rock bolts
in a particular area are all part of a mine's operating experience.
10 FMSHRC at 372; Tr. 521, 522, 618. Miners F. Wright and T. Mason (part
of the 14 N 33 development crew) testified about the bad ground conditions
they experienced in that drift prior to the Dillard fatality. 10 FMSHRC at
372, 385; Tr. 179, 182, 183, 204, 230, 264, 270, 281.
In July, 1984, Dr. Ross Hammet advised Tennessee Chemical that while
systematic rock bolting was not then indicated, the requirement for ground
support should be determined by continuing to observe local geological
conditions that might ultimately dictate the need for systematic bolting.
10 FMSHRC at 372, 386; Exhibit P-27 at 10; Tr. 602-611.
Most importantly, immediately before the Dillard fatality, a 2 foot
wide by 3 to 4 foot long rock fell in front of Wright's loade~.while he
was mucking out the 14 N 33 drift. Wright informed Dillard of the fall
and warned him that the back had "blowed up." C. Morrow, the development
foreman, overheard Wright tell Dillard of these conditions. 10 FMSHRC
at 370; Tr. 164, 167, 171.
Turner, and MSHA inspector E. Mouser testified that the loose rock
they observed upon visiting the scene of the Dillard fatality on
September 15th and 17th existed prior to the fatality and was not caused
by the rock fall. 10 FMSHRC at 381; Tr. 95, 96, 142.
The judge recounted all of the above in the context of reviewing
Tennessee Chemical's "abundant operaiting experience" indicating the need
for ground support before the fatality. Reading the judge's decision as
a whole it is evident that, while the judge considered the Ledford
fatality as part of Tennessee Chemical's operating experience, he did not
predicate his decision upon that event and, in fact, relied in large
measure upon this other experience, which Tennessee Chemical does not
contend was improperly considered as part of its operating experience.
We next address Tennessee Chemical's challenge to the judge's finding of gross negligence. After finding that Tennessee Chemical violated
section 57.3-20 by failing to provide support at the place where the rock
fell on Dillard and Waters, the judge determined that:
In light of the abundant operating experience
showing the need for roof support in this area
before the fatality, I find that Respondent's
failure to provide roof support to protect
Dillard and Waters from a potential roof fall
constituted gross negligence.
10 FMSHRC at 387-88.

789

Thus, the judge's legal determination of gross negligence was tied
to his factual findings of abundant operating experience showing the
need for ground support in the 14 N 33 drift. In terms of whether there
is substantial evidence for the judge's determination of gross negligence,
we find support for this finding in the record beginning with the mine
operator's experience in connection with the Ledford incident, and
including the events and history of the conditions in the 14 N 33 tunnel
in the days immediately preceding the Dillard fatality.
The judge also found that Tennessee Chemical's "layered system"
involving three levels of responsibility (miners, front line supervisors,
and upper management) for monitoring and controlling the ground failed
at each level. 10 FMSHRC 382. These failures played an important part
in the judge's determination that gross negligence was involved. In this
regard the judge pointed to several failures of communication between
Wright, Dillard and Waters regarding the areas that were scaled and those
that needed to be scaled. 10 FMSHRC 383. The judge also related the
failures at the front line supervisor level, focusing upon the failure
of Morrow, the development foreman, to carry out his duties under
30 C.F.R. § 57.3-22, which requires supervisors to examine the ground
conditions during daily visits. The judge found that Morrow had not
visited the area on that shift before or after the warning and that
he failed to take any action even after overhearing Wright warn Dillard
of the hazardous ground conditions. The judge also found that Morrow
knew that Dillard and Waters would be returning to the area that Wright
had warned about and that they would be drilling into the face while
working in an unbolted area. 10 FMSHRC at 384. Additionally, the judge
accepted the general mine foreman's statement that the development crew
had reported the adverse conditions to Morrow. ·Tenness.ee Chemical does
not take issue with these findings.
The judge further determined that there was a second failure on the
part of front line supervisors. Based on the testimony of rock bolter,
M. Richards, the judge found that L. Hicks, supervisor of stoping and
rock bolting, was informed by Richards on September 13th of the adverse
ground conditions yet, like Morrow, he took no action to inspect or
provide support for the area where Dillard and Waters would be drilling.
In fact, Hicks criticized Richard for installing extra bolts. 10 FMSHRC
at 385.
At the upper management level the judge noted general mine foreman
G. Williams' awareness of the adverse conditions in the part of the drift
where Dillard would be working and his ordering of bolting around the bore
hole, but his failure to order bolting for the area where Dillard would be
working. 10 FMSHRC at 386. Finally, the judge noted that, while Dr. Hammet
had stated in his July 1984 report that systematic bolting was not yet
needed, he warned that such bolting might ultimately be necessary and that
d~cisions on the areas to be supported would depend primarily on local
geological conditions.
We view the above as constituting substantial evidence in support of
the judge's finding as to the degree of negligence involved. 4/
4/
Geological differences between underground coal mines and underground
metal/nonmetal mines generally result in requiring systematic roof bolting
(Footnote continued)

790

There is, however, Tennessee Chemical's argument that the judge did
not consider· the opinions of the MSHA inspectors who considered the
negligence to be moderate. MSHA supervisor Turner explained that he retreated from his initial opinion that high negligence was involved to his
subsequent view that the negligence was moderate because he believed that
there were mitigating circumstances. 5/ Tr. 18, 97. Turner felt the
negligence was moderate because of Tennessee Chemical's efforts following
the Ledford fatality, including their hiring of consultants and the training
and retraining of their employees in ground control. Tr. 38, 39, 41, 42,
89, 100.
While the judge did not specifically discuss MSHA's change in opinion
as to the level of negligence involved, after a citation is contested
before the Commission, it is the judge's responsibility to determine the
extent of negligence de novo based on the evidence in the record before him.
Sellersburg Stone Co.-,-5 FMSHRC 934, 36 (March 1983), aff'd, 736 F.2d 1147
(7th Cir. 1984). "When a judge's penalty assessment is put in issue on
review, we must determine whether it is supported by substantial evidence
and whether it is consistent with the statutory penalty criteria."
Missouri Rock, Inc., 11 FMSHRC 136, 141 (February 1989). As we have set
forth, we find substantial evidence of record supporting the judge's finding.
Tennessee Chemical also asserts that there is no factual support for
the judge's finding that there was a failure to supply needed ground support,
unless it is held to a standard of being an insurer of events in the mine.
It is Tennessee Chemical's position that it had done all it could under
the smooth wall method by bolting as far forward in the drift as possible.
It notes that smooth walling is an accepted way to mine and that MSHA
knew that it was utilizing that method.
We need not consider the merits or demerits of smooth walling
generally or as practiced by Tennessee Chemical. The fact that the
smooth wall method may be a recognized method of ground support is not
at issue. The issue is simply whether, while utilizing the smooth wall
method, Tennessee Chemical maintained ground support that their operating
experience indicated was needed at the cited location. Although Tennessee
Chemical may have bolted as far forward as normally called for under the
smooth wall method, it is clear that, in the circumstances presented, further bolting was called for and could have been achieved. See Tr. 44, 45.
Fn. 4/ continued:
in the former and rock bolting as necessary in the latter. Applying that
tenet here, the issue is not whether systematic bolting to the face should
have been instituted prior to the Dillard fatality, but whether bolting
should have been provided in the area where Dillard and Waters were working.
As to that issue, substantial evidence in the record establishes that the
area should have been bolted and that failure to do so'was grossly negligent.
5/
Turner's original basis for determining that high negligence was
Involved stemmed from directions by his superiors within MSHA who were
influenced by the fact that there had been seven fatalities in mines
inspected by Turner's MSHA field office. Tr. 88.

791

In sum, there is substantial evidentiary support in the record for
the judge's finding that Tennessee Chemical should have recognized that
there were serious ground support problems in the 14 N 33 drift, preceding
the Dillard fatality. Accordingly, there is substantial support for the
judge's rejection of Tennessee Chemical's argument that the fall of
ground that killed Dillard was a surprise. Further, there is substantial
support for the judge's finding regarding the penalty criteria in his
assessment of a $7,500 penalty.
For the foregoing reasons, the judge's decision is affirmed.

Richard V.

er

·.~~/LA- ti. ~{e__,

J.lyce A. Doyle, CommiSSiO!l

L. Clair Nelson,.Commissioner

Distribution
Ronald G. Ingham, Esq.
Miller & Martin
1000 Volunteer Building
Chattanooga, Tennessee 37402
Linda Leasure, Esq.
Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

792

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

May 8, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos. PENN 88-227

PENNSYLVANIA ELECTRIC COMPANY

ORDER

In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982)("Mine Act"
or "Act"), the Secretary of Labor has issued two citations to
Pennsylvania Electric Company ("Penelec") alleging violations of
30 C.F.R. § 77.400(c) for failure to guard adequately the head drives of
two conveyors at Penelec's Homer City Steam Electric Generating Station.
Before Commission Administrative Law Judge Gary Melick, Penelec
challenged whether the head dri~e equipment came within the jurisdiction
of the Mine Act. The judge concluded that the Department of Labor's
Mine Safety and Health Administration ("MSHA") had jurisdiction to
inspect the head drives, found that the violations had occurred, and
assessed Penelec civil penalties of $54 for each violation. 10 FMSHRC
1780 (December 1988)(ALJ). The Commission granted Penelec's Petition
for Discretionary Review. Penelec has subsequently filed an Application
for Temporary Relief requesting, in effect, that the Commission enjoin
MSHA from enforcement activities at the electrical generating station
pending a decision in this case. Penelec has also filed a Motion for
Expedited Hearing and Oral Argument. The Secretary has filed responses
to Penelec's motions. On the following bases, the Application for
Temporary Relief is denied and the Motion for Expedited Hearing and Oral
Argument is granted.
Section 105(b)(2) of the Mine Act, 30 U.S.C. § 815(b)(2), defines
the conditions under which temporary relief may be granted under the
Mine Act. Commission Procedural Rules 45 and 46, 29 C.F.R. §§ 2700.45 &
.46, merely implement this statutory provision. Section 105(b)(2) of
the Act provides for temporary relief from "any modification or
termination of any order or from any order issued under section [104]"
of the Act, and specifically states that "[n]o temporary relief shall be
granted in the case of a citation issued under subsection (a) •.• of
section [104]" of the Act. There are no orders of withdrawal involved
in the present proceeding. Rather, the two citations in question were

793

issued under· section 104(a) of the Act. Thus, by the express terms of
the Act, temporary relief may not be granted in this case.
Penelec also asserts that MSHA had agreed that, during the
pendency of this civil penalty proceeding, it would restrict inspections
of the generating station to previously inspected areas. Penelec
further asserts that on March 27-30, 1989, MSHA violated that agreement
by issuing 23 additional citations involving training requirements and
equipment specifications at the station. Issuance of these additional
citations has no bearing upon whether temporary relief may be granted in
this case. Section 105(b)(2) of the Act and Commission Procedural Rules
45 and 46 contemplate that, prior to any grant of temporary relief, a
proceeding be instituted before the Commission and a hearing held. The
23 additional citations are not the subject of the present proceeding
and there is no indication in the record that Penelec has challenged
them under the Act or that a hearing concerning these other citations
has been held. Moreover, as already noted, temporary relief is not
available for citations issued pursuant to section 104 of the Mine Act.
Accordingly, Penelec's application for temporary relief is denied.
Upon consideration of Penelec's Motion for Expedited Hearing and
Oral Argument and the Secretary's responses thereto, the motion is
granted. An order setting the date and terms of oral argument will be
issued at an appropriate time.

Backley, Commissione'r-· ·

~ti.~
oyceA:DOYle, CommTsSiOer

• Clair Nelson, Commissioner

794

Distribution
John P. Proctor, Esq.
Bishop, Cook, Purcell & Reynolds
1400 L Street, N.W. ·
Washington, D.C. 20005
Carl C. Charneski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

795

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

May 8, 1989

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. VA 88-44-H

v.
A. H. SMITH STONE COMPANY

BEFORE:

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

ORDER

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). On February 22,
1989, Conunission Chief Administrative Law Judge Paul Merlin issued an
Order of Default finding respondent A. H. Smith Stone Company ("Smi~h
Stone") in default for failure to answer the Secretary of Labor's civil
penalty complaint and the judge's two subsequent orders to show cause.
The judge assessed a civil penalty of $362 proposed by the Secretary for
four violations of mandatory safety standards. By letter dated April
10, 1989, addressed to Judge Merlin, A. H. Smith Associates Limited
Partnership ("Smith Associates"), on behalf of Smith Stone, requested
that the order of default be removed from the proceeding and that the
operator be allowed to contest the alleged violations. On May 1, 1989,
the Secretary filed an opposition to the request. We deem the April 10
letter to constitute a request for relief from a final Conunission order
incorporating a late-filed petition for discretionary review, and, for
the reasons set forth below, we grant review, vacate the judge's default
order and remand for further proceedings.
On January 5 and 6, 1988, an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA") issued to Smith

796

Stone four citations pursuant to section 104(a) of the Mine Act, 30
U.S.C. § 814(a). On March 29, 1988, MSHA's Office of Assessments
notified Smith Stone that i t proposed a total civil penalty of $362 for
the alleged violations. On May 4, 1988, Smith Stone filed its "Blue
Card" request for a hearing before this independent Commission. On
June 9, 1988, the Secretary filed a complaint proposing the assessment
of civil penalties for the violations. The record reflects that Smith
Stone did not file an answer to the complaint, which was served by first
class mail on it at its Mitchell, Virginia, address.
On August 15, 1988, Judge Merlin issued a show cause order
directing Smith Stone to answer the complaint within 30 days or be found
in default. The order was sent via certified mail, return receipt
requested, to Joseph McElf ish, A. H. Smith Stone Company at the
Mitchell, Virginia, address. The record reflects that the certified
mail return receipt for the order was signed on August 22, 1988, by one
Clyde Wayland as agent for Smith Stone. No response to the order
appears in the official file.
On November 8, 1988, the judge's law clerk noted, via-a memorandum
to the file, that Mr. McElfish was no longer employed by Smith Stone and
that service should be directed to a Ms. Pridgen at Smith Associates'
corporate headquarters in Branchville, Maryland. On December 8, 1988,
Judge Merlin issued a second order to show cause, directing Smith Stone
to answer the complaint within 30 days, _indicating that since "it has
subsequently been learned that Mr. McElfish is no longer employed by the
operator and .•• the proper company officials may not have received the
order .... the second show cause.order is being issued [to Ms. Pridgen
at the corporate headquarters of A. H. Smith Associates in Branchville,
Maryland]." The certified mail return receipt for the second order was
signed by one R. Bailey.
On February 22, 1989, Judge Merlin issued an Order of Default
stating, inter alia, that the respondent had "failed to comply •.. [with
the second order to show cause]." The judge accordingly assessed the
total civil penalty amount of $362.
By letter dated April 10, 1989, which encloses an answer to the
complaint, Smith Associates' Director of Safety/Government Affairs
essentially requested that the order of default be vacated and its right
to contest the citations reinstated. The submission asserts that the
delay in responding is attributable to the fact that the Secretary's
complaint, the orders to show cause and the order of default were
directed to persons no longer employed by Smith Associates.
On May 1, 1989, the Secretary opposed the request on the grounds
that the respondent's proffered excuses for its nonresponse to
Commission orders are not persuasive.
The judge's jurisdiction in this matter terminated when his
default order was issued on February 22, 1989. 29 C.F.R. § 2700.65(c).
Because the judge's decision has become final by operation of law, we
can consider the merits of A. H. Smith Associates' request only if we
construe it a~ a request for relief from a final Commission decision

797

'
incorporating a late-filed petition for discretionary review. See,
Amber Coal Company, 11 FMSHRC 131, 132 (February 1989); Kelley
Trucking Co., 8 FMSHRC 1867 (December 1986); M.M. Sundt Construction
Co., 8 FMSHRC 1269 (September 1986).

~'

Smith Associates, proceeding without benefit of counsel, has
raised what may be a colorable excuse for its nonresponse to the judge's
orders. See, ~' Columbia Portland Cement Co., 8 FMSHRC 1644
(November 1986)(nonresponse attributable to mistake or neglect of a
former employee); Mohave Concrete and Materials, Inc., 8 FMSHRC 1646
(November 1986)(failure to respond attributable to mistake or neglect of
a former bookkeeper); see also, Ten-A Coal Co., 10 FMSHRC 1332
(September 1988); Perry Drilling Co., 9 FMSHRC 370 (March 1987). The
Commission has previously afforded such a party relief from final orders
of the Commission where it appears that the party's failure to respond
to a judge's order and the party's subsequent default are due to
inadvertence, mistake, or excusable neglect. Amber, supra; Kelley,
supra; Sundt, supra. Under these circumstances, we will accept Smith
Associates' letter as a request for relief from a final Commission order
incorporating by implication a petition for discretionary review. We
accordingly grant the petition.
We have observed repeatedly that default is a harsh remedy and
that if the defaulting party can make a showing of adequate or good
cause for the failure to respond, the failure may be excused and
appropriate proceedings on the merits permitted. Sundt, 8 FMSHRC at
1271; Kelley, 8 FMSHRC at 1869. The Commission has recently noted that
"under appropriate circumstances a genuine problem in communication or
with the mail may justify relief from default." Ten-A Coal Company, 10
FMSHRC 1132, 1133 (September 1988), quoting Middle States Resources,
Inc., 10 FMSHRC 1130 (September 1988); Con-Ag, Inc., 9 FMSHRC 989, 990
(June 1987)(emphasis supplied). Since we are unable, on the basis of
the present record, to evaluate the merits of the respondent's
assertions, we will permit the parties to present their positions to the
judge, who will determine whether sufficient grounds exist for excusing
the failure to timely respond. Perry Drilling Co., 9 FMSHRC 377, 380
(March 1987), citing Kelley, supra, 8 FMSHRC at 1869.

798

Accordingly, the judge's default order is vacated and this matter
is remanded for proceedings consistent with this order. Respondent is
reminded to serve the Secretary of Labor with copies of all its
correspondence and other filings in this matter. 29 C.F.R. § 2700.7.

~

~~£~~~
Richard V. Backley, Commissioner

a

t1.~0_

foY~le, CoIDffiiSSier

Distribution
Lisa M. Wolf
Director Safety
A.H. Smith
9101 Railroad Avenue
Branchville, Maryland

20740

Jack E. Strausman, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

799

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

May 10, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. KENT 88-152

v.
GREEN RIVER COAL COMPANY
BEFORE:

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

BY THE COMMISSION:
By a petition for discretionary review filed May 1, 1989, and
supplemented on May 5, 1989, the Secretary seeks review of a decision
issued by Commission Administrative Law Judge George A. Koutras on
April 24, 1989. The basis for the Secretary's petition is that a
prejudicial error of procedure was committed when the judge issued
his decision prior to May 3, 1989, the date set by the judge for the
filing of post-hearing briefs, and before any such briefs had been
received. The petition requests that the case be summarily remanded
to the judge for reconsideration of his decision in light of any
timely-filed post-hearing briefs of the parties. Concurrently with
the filing of her petition for review, the Secretary also filed with
the judge a motion for reconsideration of his decision pursuant to
Commission Procedural Rule 65(c), 29 C.F.R. § 2700.65(c) providing in
part for the correction of "clerical mistakes and errors arising from
oversight or omission in decisions, orders or other parts of the record"
after a judge's decision has been issued.

On May 8, 1989, Green River Coal Company filed a response to the
Secretary's petition requesting that it be denied on three grounds: that
no prejudice to the Secretary occurred since the judge issued his decision without considering the brief of either party; that the petition was
premature insofar as the judge had not yet ruled on the Secretary's motion
for reconsideration; and that a petition for review based on a technical

800

error should also indicate that the petitioner can also prevail on the
merits. Meanwhile, by an order issued May 4, 1989, the judge denied the
Secretary's motion for reconsideration citing among other authority the
Commission's decision in Capitol Aggregates, Inc., 2 FMSHRC 1040
(May 1980) • ~/
Having considered the arguments of the parties and the judge's
order denying the Secretary's motion for reconsideration, we find that
Capitol Aggregates, Inc., is dispositive of this matter. We therefore
grant the Secretary's petition for review, vacate the judge's decision
of April 24, 1989, and remand the case to the judge for further consideration of his decision in light of the post-hearing briefs filed by the
parties.

g~~"

Richard V. Backley, Commissioner

e~tl,~

Joyce A. Doyle, Com1DlSSiOr

!ames A.

Lasto~,

Commissioner

'JL,,ll~
L. Clair Nelson, Commissioner

*f In Capitol Aggregates, the Commission held that a judge has no
authority to stay the effective date of his already issued decision
pending the filing of post-hearing briefs by the parties, and remanded
that case to the judge for reconsideration of his decision in light of
the post-hearing briefs. 2 FMSHRC at 1041-42.

801

Distribution
Dennis D. Clark, Esq.
Office of the Solicitor
U:S. Department of Laoor
4015 Wilson Blvd.
Arlington, VA 22203
Joseph B. Luckett, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd., Suite B-201
Nashville, Tennessee 37215
B.R. Paxton, Esq.
Paxton & Kusch
213 E. Broad St.
P.O. B.ox Q55
Central City, Kentucky

42330

Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

802

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

May 30, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION. (MSHA)
Docket No. CENT 89-2-M

v.

L & L GRAVEL

BEFORE:

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

DIRECTION FOR REVIEW AND ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982). On April 20,
1989, Conunission Chief Administrative Law Judge Paul Merlin issued an
Order of Default finding respondent L & L Gravel ("L&L") in default for
failing to answer the Secretary of Labor's Proposal for Penalty and the
judge's Order to Show Cause. On May 22, 1989, the Secretary filed with
the Conunission a Motion to Correct Order of Default seeking reduction of
the penalty amount by $20, on the basis that one of the underlying
citations for which penalties had been proposed had been vacated. For
the reasons set forth below, we deem this motion to constitute a
Petition for Discretionary Review, which we grant, and we vacate the
judge's default order and remand for further proceeding.
The Secretary asserts that one of the underlying citations, based
on an alleged violation of 30 C.F.R. § 56.14010 (safety devices on handheld power tools), was vacated on October 14, 1988, and that the penalty
of $20 assessed in connection with that citation snould also be vacated.
The judge's jurisdiction in this matter terminated when his
default order was issued on April 20, 1989. 29 C.F.R. § 2700.65(c).
Under the Mine Act and the Conunission's procedural rules, once a judge's
decision has issued, relief from the decision may be sought by filing
with the Conunission a petition for discretionary review within 30 days
of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70. Here the
Secretary's motion is a request for revision of, and a form of relief

803

from, the judge' decision and we will treat it as a petition for
discretionary review. See, ~· Secretary on behalf of DeLisio v.
Mathies Coal Co., 9 FMSHRC 193, 194 (February 1987).
The Secretary's motion, in effect, questions the factual basis
upon which the judge's decision penalty assessment rests. Under the
circumstances, we deem it appropriate to remand this matter to the
judge, who shall take appropriate action with respect to the Secretary's
request for correction of his original decision. Cf. Camp Fork Fuel
Co., 11 FMSHRC 496, 497-98 (April 1989).
Accordingly, the judge's default order is vacated and this matter
is remanded for proceedings consistent with this order.

Distribution
Stephen G. Reynolds, Esq.
Office of the Solicitor
U. S. Department of Labor
911 Walnut Street
Kansas City, Missouri 64106
Lewis L. Herbough
L & L Gravel
Box 585
Valentine, Nebraska

69201

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

804

ADMINISTRATIVE LAW JUDGE DECISIONS

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

May 1, 1989

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

.
..
.
.

v.
WARREN E. MANTER COMP ANY,
INC.,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. YORK 88-43-M
A. C. No. 19-00798-05503
Richardson Pit Mine

DECISION
Appearances:

David L. Baskin, Esq., Office of the Solicitor
u. s. Department of Labor, Boston, Massachusetts,
for Petitioner.
warren E. Manter, Pro Se, for the Respondent.

Before:

Judge Merlin

This case is a petition for the assessment of civil penalties for four alleged violations filed by the Secretary of Labor
against Warren E. Manter Company, Inc., under section 110 of the
Federal Mine Sa·fety and Health Act of 1977, 30 u. S. c. § 820.
An evidentiary hearing was held on March 24, 1989, and the
parties have waived the filing of post-hearing briefs.
When a violation is established, section llOCi) of the Act,
30 U. S. C. § 820(i), directs that in assessing the amount of
civil penalty, the Commission shall consider the operator's history of previous violations, the appropriateness of such penalty
to the size of the operator's business, whether the operator was
negligent, the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated good
faith of the operator in attempting to achieve rapid compliance
after notification of a violation.
Gravi'ty and negligence will be considered individually with
respect to each citation. Based upon the record, I make the following findings for the remaining criteria as applicable to all
the citations. The alleged violations were rapidly abated in
good faith. In absence of any evidence to the contrary, I conclude that the imposition of civil penalties herein will not
affect the operator's ability to continue in business. Also in
the absence of any evidence to the contrary from the Solicitor,
the operator prior history is held noncontributory. The
operator's size is small (Tr. 87).

805

Citation No. 2853589 sets forth the subject condition as
follows:
"The fire extinguisher in the generator
trailer had been discharged and not replaced with
a fully charged and sealed extinguisher. There
is oil and other flammable material in the
trailer."
The citation charges a violation of 30 C.F.R. § 56.4203
which provides:
"Fire extinguishers shall be recharged
or replaced with a fully charged extinguisher
promptly after any discharge."
A conflict exists in the testimony regarding this citation.
The inspector testified that the seal on the extinguisher had
been broken (Tr. 15). He said an employee of the operator told
him the e)Ctinguisher had been used previously in a fire (Tr. 16).
The inspector admitted he did not look at the extinguisher's
gauge CTr. 26). The operator testified that although the seal
was broken, the gauge showed the extinguisher was full and that
the extinguisher had in fact not been used and was charged
(Tr. 29, 99). I find that the operator was a credible witness
and that his first-hand testimony is persuasive. As appears hereinafter, where a violation did exist, the operator freely admitted it. The employee upon whom the inspector relied with respect
to the supposed prior use of the extinguisher, was described by
the operator as disgruntled and that description is uncontradicted. The hearsay statements attributed to this employee are
not as convincing as the operator's live testimony. Accordingly,
I find the extinguisher was not discharged and I conclude that no
violation existed. Therefore, this citation is vacated and no
penalty is assessed.

Citation No. 2853590 sets forth the subject condition as
follows:
"The walkway and floor in the trailer
for the generator is covered with oil [sic]
it is a slipping and fire hazard. This area
is used as a walkway to gain access to some
areas of the plant.
·
The citation charges a violation of 30 C.F.R. § 56.20003(a)
which provides that at all mining operations:
"Ca> Workplaces, passageways, storerooms, and service rooms shall be kept clean
and orderly."

806

The inspector testified that the walkways were covered with
dust and oil CTr. 31). The operator admitted the trailer was
messy CTr. 101). On this basis I conclude a violation existed.
I also find the operator was negligent, relying upon the inspector's estimate that the condition occurred over a period of time
CTr. 33). The violation was however, of only modest gravity.
The inspector testified that the oil was a mixture of diesel and
motor oil and that most of it was motor oil which is not as flammable as diesel .CTr. 36) • In addition, the inspector stated that
except for oil under the generator, stone dust covered the oil
and made it less flammable CTr. 36-37). The operator asserted
that stone dust covered the oil everywhere, rendering all of it
less flammable CTr. 101). To the extent that there is a conflict
in the descriptions, I find that of the operator more persuasive.
I also accept the operator's testimony that the cited area was
not the main access to the plant CTr. 101, 102). Finally, although the generator was on, the plant was not operating. The
foregoing circumstances indicate only moderate gravity and show
as well that there was no reasonable likelihood of injury. Therefore, the significant and substantial designation on the citation
was improper. Cement Division, National Gypsum Co., 3 FMSHRC
822, 825 Cl981), Mathies Coal Co, 6 FMSHRC 1, 3-4 (1984). The
penalty was originally assessed at $276, but in view of the circumstances set forth herein regarding gravity and the other
statutory criteria, I determine a penalty of $75 is appropriate.
Citation No. 2853591 sets forth the subject condition as
follows:
"The electrical junction box on the
scalping screen is broken loose and hanging
on live wires. Everyone on the plant is
exposed to potential electrical shock •.~·
The citation charges a violation of 30 C.F.R.
which provides:

§

56.12032

"Inspection and cover plates on electrical equipment and junction boxes shall be
kept in place at all times except during
testing or repairs."
The inspector's testimony that the junction box was disengaged from the plant struc.ture and was hanging supported by
wires that supply electricity to the plant is uncontradicted
(Tr. 50). On this basis I find a violation existed. The inspector did not know exactly how long the condition had existed, but
he estimated it would have been more than a day, something in the
nature of days (Tr. 64, 72). The condition was visibly obvious
(Tr. 64). The operator could not state when the condition
occurred, but I accept his testimony that the rust the inspector
saw was not on the screws which had been holding the box before
they broke off and that therefore, the rust is not an indication

807

of the duration of the violation (Tr. 77). Clearly, the operator
should have found and corrected this condition and accordingly
must be found negligent. With respect to gravity, I accept the
operator's statement that the voltage was 220 and that if fuses
failed to work, the plant structure could become energized,
creating a shock hazard (Tr. 79). However, gravity is greatly
mitigated, because the plant was not operating. The inspector
also mentioned the possibility of a shock hazard if wires were
chafed through, but he did not see any evidence of insulation
wearing away because he did not look. Based upon the foregoing,
I conclude the violation was of only moderate gravity. Because
the plant was not operating, there was no reasonable likelihood
of injury and therefore, the significant and substantial designation on the citation was improper. The penalty was originally
assessed at $413, but in view of the circumstances set forth
herein regarding gravity and the other statutory criteria, I
determine that a penalty of $100 is appropriate.
Citation No. 2853592 sets forth the subject condition as
follows:
"The guards had been removed from the
self-cleaning tail pulley of the small
conveyor and not replaced after repairs."
The citation charges a violation of 30 C.F.R. § 56.14006
which provides:
"Except when testing the machinery,
guards shall be securely in place while
machinery is being operated. 11
The inspector testified that the location o~ the missing
guard was at the tail pulley of the stacking conveyor (Tr. 88-89).
The operator admitted the guard was broken off because he had
seen it himself the day before (Tr. 96). On this basis I find a
violation existed. The operator was negligent because the
missing guard should have been replaced. With respect to
gravity, I accept the operator's testimony that the tail pulley
did not extend beyond the belt (Tr. 96-97). Nevertheless, as the
operator admitted and as the inspector testified, there was a
danger that an individual's arm or clothing could become caught
(Tr. 88-89, 97). However, the inspector testified that only the
individual performing maintenance tasks would be subject to such
a danger.
Finally, any risk of harm was greatly reduced because
the plant was not operating. The foregoing circumstances
indicate only moderate gravity. Because the plant was not
operating, there was no reasonable likelihood of injury and
therefore, the significant and substantial designation on the
citation was improper. The penalty was originally assessed at
$168, but in view of the circumstances set forth herein regarding
gravity and the other statutory criteria, I determine that a
penalty of $75 is appropriate.

808

ORDER
Accordingly, it is ORDERED that Citation No. 2853589 be
VACATED, and that Citation Nos. 2853590, 2853591 and 2853592 be
AFFIRMED.
It is further ORDERED that the designation of significant
and substantial.in Citation Nos. 2853590, 2853591, and 2853592 be
DELETED.
It is further ORDERED that the following civil penalties are
assessed.
Penalty

Citation No.
2853590
2853591
2853592

$75
$100
$75

It is ORDERED that the operator pay $250 within 30 days from
the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
David L. Baskin, Esq., Office of the Solicitor, u. s. Department
of Labor, John F. Kennedy Federal Building, Government Center,
Boston, MA 02203 (Certified Mail)
Mr. Warren E. Manter, Warren E. Manter Company, Inc., 20 Popes
Lane, Danvers, MA 01923 (Certified Mail)
/gl

809

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

MAY 3 1989
CIVIL PENALTY PROCEEDING

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

:

v.

Docket No. WEVA 88-204
A.C. No. 46-06846-03517
Oneida Mine No. 12

ONEIDA COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

James H. Swain, Susan M. Jordan, Esqs., Office
of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the Petitioner;
w. T. Weber, Jr., Esq., Weston, West Virginia,
for the Respondent.

Before:

Judge Koutras
Statement of the Proceeding

This proceeding concerns civil penalty proposals 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), seeking civil penalty assessments for two
alleged violations of the mandatory accident reporting requirements found in Part SO, Title 30, Code of Federal Regulations.
The respondent filed a timely answer contesting the proposed
civil penalties, and a hearing was held in Charleston,
West Virginia. The parties filed posthearing arguments, which
I have considered in the course of my adjudication of this
matter.
Issues
The issues presented in this case are Cl) whether the
conditions or practices cited by the inspector constitute violations of the cited mandatory standards, and (2) the appropriate civil penalties to be assessed for the violations, taking
into account the statutory civil penalty assessment criteria
found in section llO(i) of the Act.

810

The crucial issue in this case is whether or not a
purported "accident" which prompted the issuance of the violations, was in fact a reportable accident within the definition
of the term "accident" found in 30 C.F.R. § 50.2Ch){2).
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-154, 30 U.S.C. § 801 et seq.
2.

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

3.

Mandatory accident reporting standards 30 C.F.R.

§ 50.10 and 50.12.

4.

Commission Rules, 29 C.F.R. § 2700.1 et seq.

Stipulations
The parties stipulated to the admission of certain
documents, and also stipulated to the following (Tr. 5-6).
1. The respondent and its controlling
company are subject to the Act, and the
presiding judge has jurisdiction to hear and
decide this matter.

2. The inspector who issued the contested
citations was acting in his capacity as a duly
authorized representative of the Secretary of
Labor.
3. A true and correct copy of each of the
citations was properly served on the respondent's representative.

4. Imposition of civil penalties for the
alleged violations will not adversely affect
the respondent's ability to continue in
business.
5. The respondent's history of prior
violations is reflected in an ~I.SHA computer
print-out, exhibit P-7, and it is correct.
6.
inine

The respondent is a medium-size coal
who produced 1.4 million tons of

ope~ator

811

coal in 1987, and its Mine No. 12 produced
477,466 tons of coal for that same year.
7. The injured miner in question, James
Mullens, was a miner employed by the respondent
on Dec~nber 7, 1987.
Discussion
The undisputed facts in this case establish that on
Monday, December 7, 1987, continuous-mining machine operator
James Mullens, who was working on the afternoon shift on the
L-2 Section of the underground mine in question sustained
injuries at approximately 8:30 p.m. to 9:00 p.m., when he was
pinned against a coal rib by the machine cable restraining
clamp. Mr. Mullens was the operator of the remote controlled
machine, and after receiving first-aid underground, he was
removed from the mine and taken to the Braxton CouI}ty,
West Virginia Hospital by ambulance where he was treated in
the einergency room. He was then transported to the
West Virginia University Medical Center in Morgantown,
West Virginia, by helicopter. Following an accident investigation by MSHA, Inspector Richard Herndon served the respondent
with two citations, and they are as follows:
section 104(a) Non-"S&S" Citation No. 2944551, issued on
December 9, 1987, cites an alleged violation of mandatory
accident reporting standard 30 C.F.R. § 50.10, and it states
as follows:
The operator failed to notify MSHA
immediately at the occurrence of a serious
accident to James Mullens at approximately
9:00 p.m. 12-7-87. MSHA was not made aware of
the accident until 4:30 p.m. 12-8-87.
Section 104Ca) Non-"S&S" Citation No. 2944552, issued on
December 9, 1987, cites an alleged violation· of 30 C.F.R.
§ 50.12 1 and it states as follows:
The operator was not granted permission by
MSHA to continue operation or altar the accident site or related area on the L-2 section
where a serious accident occurred 12-7-87. Due
to the continuing of the mining cycle the scene
of the accident and subsequent maintenance of
the Joy 14CH the scene of the accident was
altered.

812

Testimony and Evidence Adduced by the Petitioner
Dr. Jose Bordonada, testified as to his education and
experience, and he confirmed that he practices medicine at the
Braxton County Memorial Hospital in Gassaway, Braxton County,
west Virginia. He also confirmed that his experience includes
18 years of practice in general surgery, a fellowship in
abdominal surgery, and that he has extensive experience in
treating traumatic injury patients in emergency situations,
including emergency room treatment for vehicular chest and
abdominal injuries. Dr. Bordonad.a was qualified and admitted
as an expert medical witness {Tr. 18-22).
Dr. Bordonada confirmed that he was the hospital
emergency room attending physician on December 7, 1987, and he
treated the respondent's employee James Mullens on that day.
Referring to a copy of the hospital emergency department
outpatient record, (exhibit P-1), Dr. Bordonado explained the
information appearing therein, as well as several notations
which he made in the course of his examination and treatment
of Mr. Mullens.
Dr. Bordonada stated that according to his notations,
Mr. Mullens was pinned against a rock and miner across his
upper abdomen and lower chest, and that he was complaining of
severe abdominal pain, tenderness, back pain, and numbness and
weakness of his lower leg. He further explained that his examination of Mr. Mullens' head, eyes, ear, nose, and throat were
all negative, but that his abdomen was rigid and tender which
was a sign "of something going on, especially over the left
upper quadrant" (Tr. 24). He also confirmed that Mr. Mullens'
lumbar dorsa1 spine, or abdomen, chest, and pelvis were
x-rayed, and that certain blood tests were taken. Mr. Mullens
was given demoral for his pain, and phenergan and peritoneal
lavage medications were also administered as part of his diagnostic procedures. His diagnosis indicated "intra-abdominal
bleeding, ruptured spleen compression fractu.re L5, with left
hemiparesis, and a renal contusion" (Tr. 27).
With regard to page two of the hospital report,
Dr. Bordonada confirmed that his notation reflects that he
discussed Mr. Mullens' case with a Or. Monger, West Virginia
University Hospital, and that Dr. Monger agreed to accept a
transfer of Mr. Mullens to that facility by helicopter (Tr.
28).
Dr. Bordonada also explained the further treatluent he
administered to Mr. Mullens after he arrived at the emergency
room, and he believed that Mr. Mullens had suffered
intra-abdominal injuries, with possible nerve injuries to his
lower leg. He also explained the notations he made on page

813

four of the hospital report, and confirmed that from the
results o:E the blood tests administered to Mr. Mullens, he
concluded that Mr. Mullens showed signs of intra-abdominal
bleeding, which is a serious condition, and usually indicativ9
of a ruptured spleen. He indicated further that a ruptured
spleen is not to be taken lightly, and that a patient could
"go into shock in a matter of a few minutes." If a patient
were to go irito shock, his blood supply to the brain and heart
could be jeopardized, and the patient could develop a heart
attack and die (Tr. 29-33).
Dr. Bordonada stated that a urinalysis conducted on
Mr. Mullens reflected 20 to 30 red blood cells in his urine,
and this would indicate a contusion of the kidney (Tr. 33).
He also confirmed that the last page of the report is the
x-ray report and the interpretations made by the radiologist
who made the report.
~!though the reports were essentially
negative, Dr. Bordonada stated that he still suspected an LS
fracture because such an injury is consistent with the
patient's complaint of weakness and decreased sensation of the
lower left extremity (Tr. 34). Or. Bordonada confinned that
he immediately requested the assistance of a MediVac helicopter because of his "suspicion of the kind of injury that
needs more work-up and treatment," and that this would be
available to Mr. Mullens at another facility (Tr. 35).
In response to a question with respect to the severity of
Mr. Mullens' injuries, Dr. Bordonada responded as follows (Tr.
355-36):

Q. Doctor, do you have any opinion with
respect to whether or not the injuries sustained by James Mullens on December 7, 1987,
presented a reasonable potential to cause
death?
A..

Yes, sir.

Q.

What is that opinion?

A.. I believe we are dealing here with a
serious case of a case, and that is really
threatening his life.
JUOGF: Kou·rqAs.

would you repeat that again?

'I'he last. part.

THE WITNESS: I believe this case, that his
life is threatened.

814

BY MR. SWAIN:

Q. Why did you think that his life was
threatened?
A.
Because of the nature of the injury that he
received.

Q.
In what respect were those injuries life
threatening?
A. On the record, it was even mentioned. This
gentlemen was pinned with this miner in the
lower chest, one would also suspect a contusion
of the heart, and there's a big thing that they
also observed in Morgantown but at that time,
the real prominent situation is in the abdomen,
and which like I mentioned, there are signs of
intra-abdominal bleeding. This is the one I
worried -- I've seen a lot of patients who go
into shock just right there, and the patient
exterminated right before your eyes. That
happened to me many times.
In response to a question as to whether or not the respondent or its safety director Edward Bauer asked him whether or
not the injuries sustained by Mr. Mullens had a reasonable
potential to cause his death, Dr. Bordonada replied "I don't
think so" (Tr. 36). Dr. Bordonada also denied that Mr. Bauer
ever mentioned that such an inquiry was related to any legal
reporting requirement (Tr. 37). In the event he were asked
for an opinion whether or not the injuries were life threatening, Dr. Bordonada stated that "my answer would be p6sitive"
(Tr. 37).
On cross-examination, Dr. Bordonada confirmed that he
first saw Mr. Mullens at the hospital at 9:3b p.m., on the
evening of December 7, 1987. He confirmed that Mr. Mullens
was conscious, and that his blood pressure was within normal
limits, his pulse rate was "abnormally high," and that his
respiratory rate was "too high" (Tr. 40). Or. aordonada was
of the opinion that the pulse rate is significant and indicative of the possibility of intra-abdominal bleeding, and
alt~ough Mr. Mullens was bleedin-J £ro1n a lacerated f in-=Jer, he
did not believe that this was related to the high pulse rate.
Dr. Bordonada stated that he confirmed that Mr. Mullens had
internal abdominal bleeding when he inserted a needle and

815

found bloody fluid.
This "tap" was done at 10:45 p.m., according to the hospital report (Tr. 42).
Dr. Bordonada confirmed that Mr. Mullens arrived at the
hospital by ambulance, and that there "were some people" with
him. He also confirmed that he knew Mr. Bauer and had "seen
him around whenever there's a mine injury." He also knew that
Mr. Bauer was "involved" with the respondent company, and that
he was at the hospital asking questions (Tr. 44). When asked
whether he made a statement to Mr. Bauer after 9:30 and before
10:45 p.m., that he did not believe that Mr. Mullens' injuries
were life threatening, Dr. Bordonada replied "I don't believe
so." He also stated that "I don't recall any conversation of
such nature," but "It's most possible, because I talk to so
many people when you go out of the room" (Tr. 45). When asked
whether he had a second conversation with Mr. Bauer at approximately 10:00 p.m., during which Mr. Bauec asked him whether or
not the injuries sustained by Mr. Mullens had a reasonable
potential for death, Dr. Bordonada replied "I ~ould say no,
but it's possibl~ that I talked to him," and that it was
possible that he had that conversation (Tr. 45).
Dr. Bordonada confirmed that his great concern with
respect to the life threatening aspects of the injuries sustained by Mr. Mullens was with respect to his belief that
Mr. Mullens may have ruptured his spleen, and that this would
have been some time after 10~45 p.m., after he had done the
abdominal tap (Tr. 48). He agreed that his call for a helicopter evacuation was received by the hospital in Morgantown
at 10:57 p.m., and that the h~licopter arrived at the Braxton
Hospital at approximately 11:55 p.m., and left for Morgantown
with Mr. Mullens at 12:30 a.m., l)ecember 8 (Tr. 49-50).
Dr. Bordonada confirmed that Mr. Mullens did not in fact
have a ruptured spleen or any fractured vertebrae, but that he
did have a sprained leg, a cut finger, and a lumbar plexus
contusion or bruise to the loose nerves that supply the leg.
In his opinion, these injuries did not prese.nt a reasonable
potential to cause death (Tr. 52-53).
Robert Stump, section foreman, stated that he was the
section forecran on December 7, 1987, when the incident concerning Mr. Mullens occurred. He confir~ed that he was summoned
to the area by one of his buggy operators, and when he arrived
he observed Mr. Mullens between the cable stand-off of the
miner and the rib (Tr. 60). He described the "cable stand-off"
as the metal compartment that holds the miner cable to the
machine. Mr. Stu..'Tlp stated that when he first observed
Mr. Mullens, he could not tell whether he was conscious.
He

816

explained that Mr. Mullens was in a sitting position with the
cable stand-off "pressing up against him," and Mr. Mullens'
back was "to the coal rib." Mr. Stump confirmed that the
miner pump motor was still running, and that he shut it off.
He described the mining machine as approximately 30 feet long
and that it weighed approximately 12 tons (Tr. 59-62).
Mr. Stump stated that he sent the buggy operator to get
help, and that he (Stump) supervised the placing of Mr. Mullens
on a back board and taking him out of the mine. Mr. Stump confirmed that he supplied the information which appears on the
respondent's accident report form, as well as the information
from which the sketch attached thereto was made, and that he
also discussed the incident with Mr. Harold Hayhurst, the
individual who completed the report, but that Mr. Hayhurst was
not present when Mr. Mullens was extricated from tl1e miner and
taken out of the mine (Tr. 62-631 exhibit P-3).
MSHA Inspector Richard Herndon stated that he is a special
investigator, and he testified as to his experience and background, and confirmed that he and three other inspectors conducted an investigation at the mine on December 7, 1987, with
respect to the incident concerning Mr. Mullens. He identified
a copy of MSHA's accident report, and ~onfirmed that he issued
the two contested citations in this case (Tr. 64-671 exhibit
P-6).
~eferring to the accident report, Mr. Herndon stated that
at approximately 4:30 p.m., on Tuesday, December 8, 1987, the
respondent's safety director Edward Bauer, notified MSHA's
Clarksburg, West Virginia, field office, that a serious accident had occurred at the mine on the previous day on the afternoon shift sometime between 8:30 and 9:00 p.m., and that "a
man was pinned between a continuous miner and the coal rib,"
and had been transported to the west Virginia University
Medical Center. The MSHA supervisor to whom the accident was
reported (James Satterfield) issued a verbal section 103{k)
order over the telephone to Mr. Bauer, and the effect of that
order was to "freeze the accident site" so that an investigation could be conducted (Tr. 67-68). Mr. Herndon confirmed
that he was aware of the regulatory definition of an "accident" as found in section 50.2{h), and that as a result of the
investigation, he determined that mine management had knowledge of the fact that there was an injury to a miner that had
a reasonable potential to cause death prior to the time it was
reported at 4:30 p.m., on December 8, 1987 (Tr. 72).
Mr. Herndon further confirmed that he came to this ~onclusion
in light of the fact that the miner was transferred from
Braxton County to the University Medical Center, and that his

817

interviews with people at the mine suggested that Mr. Mullens
had suffered internal injuries (Tr. 73).
Mr. Herndon identified a copy of the respondent's accident
report (exhibit P-3), and he confirmed that he did not see it
or review it during his investigation. However, he confirmed
that during the course of the investigation he spoke with
Mr. Hayhurst, the individual who prepared the report, and
Mr. Hayhurst showed him a drawing of the accident scene which
is similar to the one attached to the report (Tr. 74).
Mr. Herndon stated that during the investigation, he
determined and "understood" that Mr. Mullens had "sprains,
injury to, I believe, the LS vertebra, possible internal
injuries, plus abrasions and various contusions." On the
basis of this information, he concluded that an accident had
occurred, and that it was required to be reported immediately
(Tr. 75). With regard to Mr. Mullens' condition at the time
of the accident, Mr. Herndon stated that according to the
witnesses who were interviewed, Mr. Mullens was found with the
miner restraining clamp block against his chest, and that he
was against the rib in an unconscious state; After the
machine was moved away, Mr. Mullens was semi-conscious, and
after first-aid was administered, he was taken by ambulance to
the Braxton Hospital, and then transported by helicopter to
the University Medical Center later that evening (Tr. 76).
Mr. Herndon was of the opinion that the respondent should
have reported.the accident immediately at the time Mr. Mullens
was transported to the Braxton Hospital because he had
internal injuries and the scope of those injuries were not
known (Tr. 77). In this regard, he stated as follows at (Tr.
7 6):

Q.

Based on what information did you conclude
that these injuries that Mr. Mullens had
recei~~d had a reasonable potential to cause
death?
A.

Based on, really, past experience, and the
that I have done accident investigations
in the past of this type, as well as reviewing
reports from across the couritry, this type of
an accident has, in many cases, become
fatalities.
~s a matter of fact, I believe it
~as in 1983, the first fatality of the.year was
this type of an injury, where a person was
crushed between a miner and the rib.
~act

818

And, at {Tr. 112):
JUDGE KOUTRAS:
In other words, the fact that
Mr. Mullens didn't die, didn't in effect,
reaffirm your past experience with incidents of
this kind.

THE WITNESS: The fact that Mr. Mullens didn't
die does not make the determination of whether
or not it was an accident. When Mr. Mullens
was injured, there was the potential for a
fatality. * * * *
1"1.r. Herndon believed that Mr. Bauer accompanied
Mr. Mullens to the hospital, and confirmed that no MSHA representatives were at the hospital because MSHA was not aware of
the fact the accident had occurred {Tr. 77).
With regard to his gravity findings concerning the
section 50.10 violation, Mr. Herndon confirmed that while tne
violation was not "significant and substantial" he believed
the failure to immediately report the accident was a serious
violation because MSHA needs to immediately investigate such
incidents while the accident scene is undisturbed in order to
obtain knowledge of the facts so that appropriate action is
taken t6 pravent repeat accidents. Mr. Herndon confirmed that
he based his "high negligence" finding on the fact that the
respondent was aware of the seriousness of the accident on the
·evening of Dec;ember 7, and was aware of tne fact that MSHA
should have been notified {Tr. 79-80). The violation was
abated by explaining to the respondent the Part 50 requirement
for im.mediately reporting accidents {Tr. 80).
Mr. Herndon confirmed that he cited a violation of section 50.12, because the respondent continued mining after the
accident, and made some changes to the mining machine, and
that this hampered MSHA's investigation of the accident. When
the accident was reported some 20 hours late·r, the operator
did not have permission to continue mining since a section
103{k) order was issued at that time. Mr. Herndon stated that
during the 20-hour period prior to the report to MSH~, the
entry ~here the accident had occurred had been mined to completion and the continuous-mining machine right-hand traction
motor had been replaced. The machine was also moved to a
different entry {Tr. 82-84). Mr. Herndon conEirmed that the
machine was operated by remote control, and that Mr. Mullens
was the operator at the time of the accident {Tr. 85).
Petitioner's counsel agreed that by the time the accident was
reported by Mr. Bauer the changes to the accident scene and

819

the mining machine had already taken place CTr. 86).
Inspector Herndon confirmed that the old traction motor was
removed from the property, and MSHA was unable to determine
whether any motor malfunction caused the accident CTr. 95).
Mr. Herndon believed the violation was serious because by
changing the scene, MSHA could make no determination as to the
actual cause of the accident. He based his "high negligence"
finding on the fact that the respondent was aware of the
seriousness of the injury sustained by Mr. Mullens, but did
not report it. Abatement was achieved by explaining the
requirements of section 50.12 to the respondent (Tr. 95-96).
On cross-examination, Mr. Herndon confirmed that he
relied on the definition of "accident" as found in section
50.2(h), to support the violations which he issued.
He
conceded that the definitional language does not use the word
"serious," and if an accident had not occurred, the respondent
was not required to report it or to preserve the scene (Tr.
97).
Mr. Herndon explained his investigative procedure, and he
confirmed that neither Dr. Bordonada or anyone else at the
Braxton Hospital were interviewed, and that the hospital
records at Braxton and the University of west Vir~inia were
not reviewed (Tr. 98). Mr. Herndon described the mining
machine cable restraining clamp which had pinned Mr. Mullens
to the rib (Tr. 102-105). He also identified the witnesses
who were inte~viewed during the investigation, and confirmed
that the cause of the accident was never factually determined
and there were no eye witnesses (Tr. 105-110).
In response to further bench questions, Mr. Herndon confirmed that at the time of the investigation, the miner motor
which had been removed from the machine was disassembled and
in the repair shop, but that no MSH~ electrical inspector
looked at it, notwithstanding the fact that there was some
indication that it was "shorting out inside.n
In response to
a question as to why the hospital records were not reviewed
during the investigation, Mr. Herndon stated that "we have had
problems getting these reports," and he conceded that no
attempts were made to obtain the records d1.1ring the investigation (Tr. 116-117).
In reply to a question as to the source
of the information which appears at page 2· of MSHA's accident
investigative report (exhibit P-6), concerning the Braxton
Hospital diagnosis of the injuries sustained by Mr. Mullens,
Mr. Herndon stated that the information was supplied by
Mr. Bauer (Tr. 118).

820

Respondent's Testimony and Evidence
Robert B. Stump, section foreman, stated that he was the
section foreman on December 7, 1987, when Mr •.Mullens was
injured, and he confirmed that he has received specialized
medical or health training, and that he is a certified
Emergency Medical Technician (EMT), licensed by the State of
West Virginia, and certified through the National Registry.
He also confirmed that he serves on the local Hacker Valley
Medical Service Ambulance ~nd Emergency Squad, and that on a
dozen or more occasions has rendered services at accident
scenes involving traumatic fnjuries and fatalities.
He
explained the procedures he follows during his examination of
such patients (Tr. 120-126).
Mr. Stump stated that he became aware of the incident
involving Mr. Mullens when he was summoned to the scene by
Mr~ Sheldon Simmons, the buggy operator.
Mr. Stump stated
that when he arrived at the scene, he saw Mr. Mullens between
the rib and the continuous miner cable stand-off, and he
passed by him and shut off the machine. Mr. Mullens was in a
sitting position, with his left knee into his chest, between
his chest and the cable stand-off. After turning off the
:machine, Mr. Stump looked at Mr. Mullens, and 15 seconds
later, Mr. Mullens stated "Get me out ·of here, I'm hurt."
Mr. Stump then re-started the machine and trammed the miner
away from Mr. Mullens. He then exa1nined Mr. Mullens and
determined that he was able to breathe and speak to him, and
that "he did nave an airway." Mr. Mullens was then placed in
a reclining position, and Mr. Stump continued his examination
and explained· what he did. He confirmed that he found
discoloration of the chest, apparent discomfort of the upper
abdomen, and a bruised upper left leg. After administering
further aid, Mr. Mullens was placed on a back board and
transported out of the mine (Tr. 126-131).
Mr. Stump stated that on the basis of his examination of
Mr. Mullens he did not believe that the injuries he nad
received had a reasonable potential to cause his death (Tr.
132). He confirmed that he reported the incident to his shift
foreman Harold Hayhurst by telephone approximately 15 minutes
after it occurred, and that Mr. Hayhurst called for an
ambulance. Mr. Stump then assembled his crew at the power
centar to "settle them down, because everyone was excited,"
and he waited for Mr. Hayhurst to call him back. Mr. Hayhurst
called him back and advised him that he woula come to the area
as quickly as possible. After Mr. Hayhurst arrived at the
scene, they measured the accident area and made a sketch of

821

the scene which is included as part of the respondent's accident report, exhibit P-3. Mr. Hayhurst then left the area,
and at approximately 10:30 to 10:45, he authorized Mr. Stump
to "start running coal or go back to work" (Tr. 134).
On cross-examination, Mr. Stump stated that Mr. Hayhurst
did not accompany Mr. Mullens to the hospital, and that during
his conversations with Mr. Hayhurst, he expressed concern
about Mr. Mullens, and asked "what shape that I thought James
was in," and whether "I thought he was hurt bad." Mr. Stump
confirmed that Mr. Hayhurst based his accident report on the
information that he (Stump) supplied him, but that he did not
observe Mr. Hayhurst filling out the report. Mr. Stump also
confirmed that the information on the report form that
Mr. ~ullens had suffered "possible internal injuries," was
based on his examination which indicated that Mr. Mullens was
experiencing palpitation of the upper abdomen, some discomfort
in his legs, and had trouble moving them. Mr. Stump was of
the opinion that Mr. Mullens could not have been alone for
more than 90 seconds before he was discovered, and that his
examination of Mr. Mullens reflected a very full pulse rate
which was somewhat rapid because of "fear and anxiety," but
"not enough to be overly concerned about" (Tr. 139).
Mr. Stump stated that Mr. Mullens was pinned against the
rib by the restraining clamp of the machine, and while he
could have pulled Mr. Mullens out without moving the machine,
he decided to move the machine away so that· he could have
access to him.and not cause any further injury (Tr. 142).
Mr. Stump stated that his experience with past trawnatic
injury cases involved cases in which two-thirds of the victims
were already dead at the scene, and one-third had injuries
that would have a reasonable probability to cause death ~nd
the victims were not conscious. He confirmed that he had no
prior experience at the mine where he made any assessment as
to whether or not any injury had a reasonable probability of
death. He also confir~ed that he was aware of MSHA's injury
reporting requirements, but had never previo~sly made any
recommendations or a report which had to be immediately
reported to MSHA (Tr. 143).
Mr. Stump confirilled that he was interviewed by Inspector
Herndon during the course of the investigation, but he could
not recall informing the inspector about his medical training,
or whether the inspector asked him about it. He also confirmed that the inspector never inquired as to the diagnosis
that he made of Mr. ~ullena' injuries, and ~e could not recall
discussing the reporting require~ents with the inspector (Tr.
149).

822

Edward Bauer, respondent's Director of Safety and Training, stated that he provides emergency medical training for
the respondent's employees, including first-aid training for
supervisors as required by MSHA's regulations, and mine rescue
training.
He confirmed that in accordance with company
procedures, anytime an employee is injured and taken to a
hospital both he and the company president, Robert McGregor
are notified. Mr. Bauer confirmed that at approximately
8:40 p.m., on December 7, Mr. Hayhurst called him and advised
him that Mr. Mullens was involved in an accident with a miner,
and that he was caught between the rib and the miner, and that
an ambulance had been called (Tr. 153). Mr. Bauer stated that
he directed Mr. Hayhurst to speak with Mr. Stump in order to
Jetermine Mr. Mullens' vital signs and his injuries. Mr. Bauer
stated that he learned from Mr. Hayhurst that Mr. Mullens was
complaining of pain in his leg, but that Mr. Stump had indicated that he was stable and that his vital signs were good.
Mr. Bauer then proceeded to the hospital and advised
Mr. Hayhurst to inform Mr. McGregor about the accident.
Mr. Bauer arrived at the hospital emergency room approximately
35 minutes ahead of Mr. Mullens, and he helped unload him from
the ambulance when he arrived.
At that time, Mr. Mullens
stated that his leg hurt and he was trying to explain to the
ambulance attendants the circumstances under which he was
injured, but they had some difficulty in understanding the
mining terminology used by Mr. Mullens. Mr. Bauer spoke with
Mr. Mullens and explained further to the attendants (Tr. 156).
Mr. Bauer stated that Mr. Mullens arrived at the hospital
at 9:35 p.m., and that shortly after his arrival Dr. Bordonada
examined him in the emergency room. Mr. Bauer stated that at
approximately 10:05 p.m., he asked or. Bordonada about the
nature of the injuries sustained by Mr. Mullens, and the
doctor explained that he was concerned about the pain in the
abdomen, but was not sure about the back, and mentioned that
Mr. Mullens had some abrasions on his hand and leg. Mr. Bauer
stated that he asked the doctor whether or not there was any
chance at all that the injuries sustained by Mr. Mullens would
cause him to die, and that the doctor responded "no" (Tr.
15 8) •
Mr. Bauer confirmed that after speaking with the doctor,
he received a call at the hospital from Mr. McGregor inquiring
about the condition of Mr. Mullens. Mr. Bauer stated that he
told Mr. McGregor about his conversation ,.,i th Dr. Bocdonada,
and Mr. McGregor inquired as to whether or not the accident
needed to be reported under Part 50, and Mr. Bauer informed
him about the reporting requir~nent in cases where an injury

823

has a reasonable potential to cause death. Mr. McGregor then
instructed Mr. Bauer to insure that he asked the doctor that
specific question, and at approximately 10:25 Mr. Bauer spoke
to the doctor again and asked him whether the injuries sustained by Mr. Mullens had a reasonable potential to cause
death. Mr. Bauer stated that the doctor again answered "no,"
and that he called Mr. McGregor back to inform him of this
conversation with the doctor (Tr. 160}.
Mr. Bauer stated that on the day after the accident, he
was at the mine in the company of MSHA Inspector Roy Bennett,
and Mr. Bennett asked him whether or not the mine had
experienced any "lost time and accidents." Mr. Bauer stated
that he explained the circumstances surrounding Mr. Mullens'
accident, including his conversations with the doctor and the
EMT treatment received by Mr. Mullens, and advised Mr. Bennett
of his opinion that the accident was not reportable.
Mr. Bennett informed Mr. Bauer that the accident should be
called in to MSHA, and following his instructions, Mr. Bauer
reported the accident by telephone at approximatel~ 12:30 noon
on December 8, to the MSHA Clarksburg Field Office. He later
spoke with Mr. Satterfield of that office at 4:30 p.m. that
same day, and after explaining the circumstances to him,
Mr. Satterfield issued a section 103(k} order (Tr. 171}.
Later, on December 10, Inspector Herndon came to Mr. Bauer's
off ice to examine the accident report and the training records
oE Mr. Mullens and Mr. Stump. Mr. Stump stated that at no
time on December 7, or thereafter, did he have reasonable
cause to beli~ve that the injuries sustained by Mr. Mullens
could have caused his death (Tr. 172).
On cross-examination, Mr. Bauer confirmed that he made no
notes concerning his discussions with Dr. Bordonada, but did
write down the reported injuries sustained by Mr. Mullens in
order to report them to Mr. McGregor. Mr. Bauer could not
recall the doctor telling him that he suspected a possible
ruptured spleen or internal abdominal injuries, but did recall
the doctor telling him that he was concerned about the pain in
the abdominal region and the leg (Tr. 173}. ee denied that
the doctor said anything about taking x-rays or fluid from the
abdomen before he could determine whether the injuries were
serious, and he re-confirmed that the doctor responded "no" to
his question concerning any reasonable potential for death
{Tr. 174}. Mr. Bauer confirmed that he did not inquire as to
why Mr. Mullens was being taken to another hospital by helicopter because it was not uncom;non to transfer patients out of
Braxton County by helicopter (Tr. 175}. ~r. Bauer stated that
the exact words he used in posing his question to Dr. Bordonada
were whether there was "any chance at all that he would die

824

from those injuries" (Tr. 176). Mr. Bauer confirmed that he
asked the doctor no further questions after the lab reports
were in, and he denied any knowledge that Mr. Mullens had blood
in the fluid, or that the doctor suspected a renal contusion or
bruise of the kidney, or a possible spleen injury (Tr. 179).
In response to further questions, Mr. Bauer confirmed
that he is a certified Emergency Medical Technician, and if
the doctor had t6ld him that Mr. Mullens had a ruptured spleen
or blood in his abdomen, he would have had some doubt about
the doctor's negative answer that there was no reasonable
potential for death and would have immediately reported the
accident. However, he relied on the doctor's negative answers
to his questions in forming his opinion that there was no
reasonable potential for death (Tr. 179-180).
Mr. Bauer confirmed that he participat~d in MSHA's accident investigation, and that he informed Inspector Herndon of
his view that the accident was not reportable. However,
Mr. Satterfield took the position that because of the fact
that the accident involved a mining machine, the accident was
immediately reportable (Tr. 182). Mr. Bauer also confirmed
that when he spoke to Mr. Satterfield at 4:30 p.m., on
December 8, wh~n the 103Ck) order was issued, he informed
Mr. Satterfield that the section had been mined out and the
machine removed, and that Mr. Satterfield stated that he did
not want the scene "di~turbed any more" (Tr. 182).
Mr. Bauer agreed that the accident was a "lost time accident" which needed to be reported, and that as of December 9,
he had not completed the necessary paperwork. He confirmed
that he was not cited for failure to file a lost time accident, and MSHA's counsel confirmed that such accidents need
not be reported immediately (Tr. 185).
Robert McGregor, respondent's President and Chief Bxecutive Operations Officer, stated that he was thoroughly
familiar with MSHA's Part 50 reporting requi~ements, and that
during his past experience in the mining industry has had
occasion to make such reports. He confir~ed that he first
learned of the incident concerning Mr. Mullens when he
received a telephone call from Mr. Hayhurst on December 7, at
approximately 9:00 p.m. Mr. McGregor informed Mr. Hayhurst to
"stop everything on the section" and to contact Mr. Stump for
a full investigation and "a drawing of the circumstances."
Mr. McGregor stated that the thought of immediately reporting
the accident crossed his mind after Mr. Hayhurst told him of
the circumstances concerning Mr. Mullens bein·::J pinned against
the rib by a miner, but he waited until Mr. Mullens was at the

825

hospital so that he would have a preliminary diagnosis of the
problem. Mr. McGregor then called the hospital and spoke with
Mr. Bauer who informed him that the doctor was concerned about
Mr. Mullens' back but said that his life was not in danger.
Mr. McGregor discussed the reporting requirements of .Part 50
with Mr. Bauer and instructed him to ask the doctor about the
potential for death, using the exact language of the standard,
because he did not want any misunderstanding. Mr. Bauer
called him back and stated that the doctor had informed him
that Mr. Mullens' injuries had no reasonable potential to
cause death (Tr. 194-197).
Mr. McGregor stated that after speaking with Mr. Bauer~
he called Mr. Hayhurst and instructed him to "go ahead and
release the section," and that they would confer the next day
to investigate the accident. When he later spoke with
Mr. Bauer, he was informed that Inspector Bennett was of the
opinion that the accident should have been im.nediately
.reported, and Mr. Bauer advised him that Mr. Satterfield had
placed a "K order" on the section and was going to come to the
mine to investigate the accident CTr. 199). Mr. McGregor
stated that he personally called Mr. Satterfield and tried to
explain why the accident was not immediately· reported, but
that Mr. Satterfield took the position that it should have,
and gave him the following reasons for his position (Tr. 199):
A. * * * [I] tried to explain to him why we
hadn't called in at the time. Basically, that
the doctor had told us at that time, and our
people said they didn't feel his life was
threatened as a result of his injuries. At
that time, we got into a lengthy discussion.
He basically told me that didn't matter. He
said the nature of the injury could have been
fatal. The event itself could have been fatal,
and that's what he was basin3 his decision.
I
said, "Jim, that's not the way I read the law."
He said, "Well, that's the way I see ii." I
said, "Are you telling me that if somebody gets
a brush burn, but if they had been six inches
over, that it could have killed them, that's
still a" -- he said, "That's exactly what I'm
telling you."
~s a result of that, as a matter of that,
Ed Bauer and I got together and drew up. a new
set of guidelines, and quite frankly, the
reason we're here today is because, Eoc our

purpose, we want to comply with the law and we
wanted the position clarified.
On cross-examination, Mr. McGregor confirmed that he
first learned of the accident from Mr. Hayhurst, and that
Mr. Hayhurst informed him that Mr. Mullens had a leg injury
and a pain in his stomach, but that his vital signs were good.
Mr. McGregor stated that he informed Mr. Hayhurst that he
wanted nothing further done on the section until he could
investigate to learn exactly how serious Mr. Mullens was
injured. Mr. McGregor stated that he then called Mr. Bauer at
the hospital approximately an hour after he spoke with
Mr. Hayhurst, but that he (McGregor) never spoke to the doctor
(Tr. 200-204).
Mr. McGregor confirmed that he was concerned about the
accident, and in order to make a record, he wanted to investigate the incident and take measurements and detail all of the
particulars. Be confirmed that Mr. Hayhurst said nothing ~o
him about any possible internal injuries suffered by
Mr. Mullens, other than that "his stomach was hurting" (Tr.
205). Mr. McGregor also confirmed that he received a report
concerning the prevailing conditions on the section after the
accident from Mr. Hayhurst before releasing the section to
continue working, and he explained why he did not initially
report to MSHA after receiving this information CTr. 206-209).
When asked about the factors he relied on when he made his
decision to release the section after the accident,
Mr. McGregor stated as follows (Tr. 217-21.8):
THE WITNESS: Of course, the one factor, was
the information I got from the hospital, and
the other factor was that we had -- I was told
that the miner was in good operating condition,
that it worked fine, that we had made a drawing
of the area, and that I felt there was no
reason not to proceed. That there would be
nothing to gain one way or the other, o~ce we
had the dimensions, a picture of the scene and
the fact that the machinery, at least, was
reported to me that it was operating properly
with the exception that the remote control box
was damaged, where as it turned out later, was
the cause of the accident.
Where the cable had caught his hand, it
set his control box on the ground. He had two
traffi leaders that worked the cats. When he was
tramming them back, he wasn't -watching the

827

cable and the clamp caught his --.came over his
hand and forced his hand down on the control
levers.
Brought the machine back to him.
Therefore, he got his abrasion on the hand.
When he got his hand free, it bent the little
guard down that we had on the side of the
control box.
So.at that point, I felt that there was no
reason not to put the section back in service,
and we would continue the investigation the
next day.
Inspector Herndon was recalled by the court, and he
denied any knowledge of any MSB:A requirement for the immediate
reporting of accidents involving miners being pinned against
the rib.
However, he confirmed that in most cases he has been
involved in when a miner is pinned against a rib there is a
reasonable potential for death (Tr. 220-221).
He .c6nEirmed
that he issued the citation because of the information related
to him during the investigation from mine personnel who were
with Mr. Mullens at the time of the accident, namely, that
Mr. Mullens was conscious or semi-conscious, and suffered a
compression fracture of the fifth lumbar vertebra, contusions
to the lung, abrasions on the left hand, and a pos~ible
strained knee.
He concluded from all of this that the
injuries presented a reasonable potential for death and should
have been immediately reported (Tr. 222-223).
Findings artd Conclusions
Fact of Violation -

30 C.F.R. § 50.10

The respondent is charged with an alleged violation of
mandatory reporting standard 30 C.F.R. § 50.10, for failing to
immediately notify MSHA of the occurrence of the accident
involving Mr. Mullens.
The statutory requirement for reporting mine accidents is found in section 103Cj"> of the 1977 Mine
Act, which states in pertinent part as follows:
"[t]n the
event of an accident occurring in any coal or other mine, the
operator shall notify the Secretary thereof and shall take
appropriate measures to prevent the destruction of any evidence which would assist in investigating the cause or causes
thereof." While it is clear that an accident must be
ceported, the requirement that it be done immediately is not
Eound in the statute.
The requirement .Eor an immediate report
is found in the regulation at 30 C.F.R. § 50.10, which
provides as follows:

828

§ 50.10

Immediate notification.

If an accident occurs, an operator shall
immediately contact the MSHA District or Subdistrict Office having jurisdiction over its mine.
If an operator cannot contact the appropriate
MSHA District or Subdistrict Off ice it shall
immediately contact the MSHA Headquarters
Office in Washington, D.C., by telephone, toll
free at (202) 783-5582.
The definition of the t~pe of "accident" which must be
reported to MSH~ pursuant to section 50.10, is
found at 30 C.F.R. § 50.2(h)(2), which defines such an accident as "An injury to an individual at a mine which has a
reasonable potential to cause death."
ir&~ediately

The evidence in this case establishes that the respondent
reported the accident to MSHA by telephone at 12:30 p.m. and
4:30 p.m., on December 8, 1987. Petitioner takes the position
that the injuries sustained by Mr. Mullens in the accident
presented a reasonable potential for causing his death, and
that the respondent should have immediately reported the accident when it occurred on December 7, 1987. The respondent
takes the p_osition that the injuries sustained by Mr. Mullens
did not present a reasonable potential for causing his death,
and that the incident of December 7, 1987, was therefore not
an "accident" within the definition found in section
50.2Ch)(2), or an "accident" which was required to be reported
immediately to MSHA.
In MSHA v. Climax Molybdenum, 2 FMSHRC 1967, a miner
suffered fractures to the left femur, the pelvis, and the
right hip, when a 7,000 pound tire fell on him. An initial
examination which took place at the mine infirmary by an
attending doctor and nurse showed that the victim's vital
signs were stable and he was cooperative, and the attending
medical personnel advised the mine safety diiector that while
the injuries s~ffered by the miner were serious, they were not
life threatening. The victim was transferred from the infirmary to a local hospital for treatment, and was subsequently
transferred again to another hospital in Denver where he
developed a Eat embolism associated with a bone fracture, but
this condition was not considered to be life-threatening.
in the Climax case, Judge Morris found no merit in MSHA's
contention that imrnediate notification is cequi red \l7henever
there exists any question as to whether an injury is life

829

threatening. He also rejected MSHA's contentions that immediate reporting was required due to a combination of circumstances, namely, the injuries were serious, a fat embolism
developed, intensive case was required, and the miner v1as
moved to three different treatment facilities. In short,
Judge Morris found that the injuries sustained by the miner
were not required to be immediately reported pursuant to
section 50.10, because MSH~ offered no credible evidence to
support a conclusion that the injuries had a reasonable
potential to cause the death of the miner. I reached the same
conclusion in Hecla Mining Company, 1 FMSHRC 1872 (Novamb·ar
1979).

In MSHA v. Allied Chemical Corp., 7 FMSHRC 2053 (December
1985), Judge Morris affirmed a violation of section 50.10,
after concluding that the injuries sustained by a miner who
received an electrical shock posed a reasonable potential to
cause death. The shock victim was hospitalized and his heart
beat was monitored for 12 to 18 hours. The attending hospital
physician advised the inspector that the injured miner was
being monitored because there was still a potential for death,
and Judge Morris was not persuaded by the testimony of another
doctor who was experienced in the hazards
elect~ical shock,
and who testified for the operator that in his opinion, the
injuries would not have caused the miner's death.

oe

MSHA's position in this case is that ~ny determination of
whether there are injuries with a reasonable potential to
cause death and, thus, an immediately reportable accident, is
subject to a "reasonable person test." MSHA asserts that a
reasonable determination must be made at the scene of the accident or the earliest point or as near in time to the accident
as possible based on the particular facts of the case. MSHA
concludes that as soon as a reasonable person would conclude
that there is a reasonable probability of death from the
injuries involved, the accident should be reported. MSHA
further concludes that the determination does not necessarily
require a medical opinion because such a req~irement would
def eat the purpose of the regulation since valuable time would
be lost. Of course, once there is a medical opinion to the
effect that the injury poses a reasonable potential for death,
MSHA believes that it must be immediately reported.
MSHA maintains that in view of Mr. Mullens' condition at
the time of the accident, mine management should hav·~ made a
determination that his injuries had a reasonable potential to
cause death and, therefore, should have immediately ceported
the accident. tn support of this conclusion, MSHA relies on

830

the fact that Mr. Mullens was knocked unconscious, mine management suspected internal injuries, Mr. Mullens was rushed to
the hospital by ambulance, and the "general knowledge" that
the type of accident (a miner bein3 pinned against a rib by a
continuous-mining machine) is very serious and sometimes
fatal.
MSHA's conclusions that the respondent should have made a
reasonable determination at the time of the accident that
Mr. Mullens' injuries posed a reasonable potential for causing
his death are based on the testimony of MSH~ Inspector Herndon,
the individual who participated in the accident investigation
and wrote the accident report of December 18, 1987 (Exhibit
P-6). Mr. Herndon testified that his interviews with mine
personnel "suggested" that Mr. Mullens had suffered internal
injuries, and that it was his "understanding" that Mr. Mullens
had sustained "possible" internal injuries.
Mr. Herndon conceded that at the time of MSHA's accident
investigation, no interviews were conducted with the attending
emergency room doctor, and no hospital records concecning
Mr. Mullens' condition were reviewed. He also conceded that
he did not !'eview the accident report prepared by Mr. Hayhurst
which contains a notation that Mr. Mullens had sustained
"possible internal injuries" (exhibit P-3). Mr. Herndon's
accident investigation report reflects that he issued the
citation because of the respondent's failure to immediately
notify MSHA "of this serious accident" (exhibit P-6, pg. 3).
Mr. Hern~on testified on direct examination that it was
his understanding that in addition to possible internal
injuries, Mr. Mullens had sustained sprains, an injury to the
LS vertebra, abrasions and various contusions, and that he was
in an "unconscious state" when first observed, but was
semi-conscious when the machine was moved away from him. When
recalled to testify later in the hearing, Mr. Herndon stated
that Mr. Mullens had suffered a compression fracture of the
fifth lumbar vertebra, contusions to the lung, abrasions to
the left hand, and a possible strained knee. This information
also appears at page 2 of his accident report, and Mr. Herndon
asserted that he .received the information from Mr. Bauer after
Mr. Mullens was taken to the Braxton Hospital emergency room.
Mr. Herndon testified that he believed the respondent
should have immediately reported the accident at the time
Mr. Mullens was transported to the hospital by ambulance
because he had suffered interhal injuries, the scope of which
were unknown. When asked the basis for his conclusion that
Mr. Mullens' injuries had a reasonable potential to cause

831

death, Mr. Herndon responded "past experience, and the fact
that I have done accident investigations in the past of this
type, as well as reviewing reports from across the country,
this type of an accident has, in many cases, become fatalities"
(Tr. 76). Mr. Herndon later confirmed that in most cases he
has investigated, when a miner is pinned against the rib, there
is a reasonable potential for death CTr. 220-221).
In my view, Inspector Rerndon's belief that the respondent
should have immediately reported the accident at the time that.
Mr. Mullens was taken out of the mine and transported to the
hospital emergency room was based on several factors.
Mr. Herndon was of the opinion that since the accident was
serious, it was required to be immediately reported.
I find no
such requirement in the cited regulation. The definition of-a
reportable accident relied on by MSHA does not include any language with respect to the degree of injury, and Mr. Herndon's
characterization of the accident as "serious" cannot support a
violation for failure to immediately report the matter.
Inspector Herndon's reliance on his past experience concerning miners b~ing pinned against a rib by a mining machine
cannot ipso facto support any reasonable conclusion that the
injuries sustained by Mr. Mullens posed a reasonable potential
for death. The fact that MSHA generally believes that accidents of this type generally have been known to result in the
demise of past accident victims is irrelevant. MSHA is bound
by its own regulatoiy defini~ion of an accident which is
required to b~ immediately reported, and given that definition, any such determination must necessarily be made on the
facts of each incident on a case-by-case basis. Further, if
MSH~ believes that such incid~nts in general need to be
reported immediately, regardless of the extent of any injury,
it is free to amend its regulations.
In my view, the question of whetl1er the respondent met
its duty to immediately report the accident in question
depends on when it possessed reasonably reliable information
which would have reasortably led it to conclude that the accident was immediately reportable.
On the facts of this case,
it seems clear to me that Inspector Herndon had no personal
first-hand knowledge of the injuries sustained by Mr. Mullens
at the time of the accident.
He issued the citation on the
basis of ce·rtain information given to him during the course of
his investigation. The issue is not whether Mr. Herndon, after
the fact believed that Mr. Mullens' injuries were such as to
posf!aceasonable potential for death, but whether oc not those
management representatives who had first-hand knowledge of the

832

injuries sustained by Mr. Mullens acted reasonably or unreasonably in concluding that there was no reasonable potential for
death, and whether they acted reasonably or unreasonably in
concluding that they were not required to iilLrnediately report
the accident to MSHA during the critical time period beginning
with the occurrence of the accident and the removal and
transportation of Mr. Mullens from the mine to the hospital.
After careful examination of all of the testimony and
evidence presented in this case, I find no credible· or
probative evidence to support MSHA~s assertions that when
Mr. Mullens was removed from·the mine and transported to the
hospital, his condition presented a reasonable potential for
death, and that the respondent knew, or should have known that
this was the case, and should have immediately reported it ··to
MSHA •. MSHA's reliance on the fact that Mr. Mullens was
knock'.ed unconscious, that management suspected internal
injuries, that he was transported to the hospital, and that
incidents of this type have gene.rally be known to result in
serious, and sometimes fatal injuries, to support its
conclusions that the accident was reportable at the time of
its occurrence is rejected.
The credible testimony of Robert Stump, a trained and
experienced certified Emergency Medical Technician who first
observed and examined and administered first aid to
Mr. Mullens, and who assisted in removing him from the scene
and placing him in the ambulance, reflects that when he first
observed Mr. Mullens he could not tell whether or not he was
conscious, and that Mr. Mullens was looking at him while bent
over in a sit~ing position (Tr. 60, 128). Mr. Stump testified
that within 15 seconds after reaching Mr. Mullens and turning
off the machine, Mr. Mullens spoke to him. After tramming the
machine away from Mr. Mullens, Mr. Stump placed him in a
reclining position and examined him further and found that he
had a very full pulse rate which was somewhat rapid because of
"fear and anxiety," but not rapid enough to cause Mr. Stump to
be concerned. Mr. Stump explained the detai°ls of his examination of Mr. Mullens, and confirmed that he followed his standard EMT examination procedures, and established spontaneous
eye and verbal contact with Mr. Mullens, and Mr. Mullens confirmed and showed him that he could move his hands. Shortly
before placing Mr. Mullens on a "bac.~ board," Mr. Stump stated
that Mr. Mullens "was responding to us, talking with us. We
could ask him what was hurting and everything, and he would
respond whatever his problems were, \vhat he was thinking or
anything else" (Tr. 130-131).

833

Mr. Stump confirmed that Mr. Mullens was pinned against
the rib by the machine cable restraining clamp, and that while
it was not necessary to remove the machine in order to extricate Mr. Mullens, he moved the machine so that he could have
better access to Mr. Mullens and to preclude any possible
further injury if he had simply "jerked him out" (Tr~ 141-142).
Although Mr. Stump confirmed that he suspected that
Mr. Mullens may have sustained possible internal injuries
because of discoloration and palpitation of his upper abdomen,
had trouble moving his legs, and was experiencing discomfort
in his legs, and had an abnormal respiratory rate which was
"not too bad" (Tr. 136-137), he concluded that on the basis of
his examination of Mr. Mullens at the scene of the accident
the injuries sustained by Mr. Mullens did not have a reasonable
potential for causing his death (Tr. 132). Mr. Stump confirmed
that upon Mr. Hayhurst's arrival at the scene, Mr. Hayhurst
asked him about Mr. Mullens' condition (Tr. 138). Mr. Bauer
testified that Mr. Hayhurst informed him that Mr. Stu.mp advised
him that Mr. Mullens was complaining of pain in his leg, but
that he was stable and that his vital signs were good (Tr. 154).
Mr. Bauer testified further that he assisted in removing
Mr. Mullens from the ambulance upon his arrival at the
hospital, and that while he was complaining about his leg
hurting, he was speaking distinctly, and was talking to all of
the hospital and ambulance personnel about what had happened
(Tr. 155-156) •
In view of the foregoing, I cannot conclude that
Mr. Stump, a trained medical technician who had prior experience with traumatic injuries, and who after examining and
treating Mr. Mullens at the scene of the accident, co~cluded
that his injuries were not life threatening and did not
present any reasonable potential for death, acted unreasonably
in reaching that conclusion at that point in time. Nor can I
conclude that Mr. Hayhurst or Mr. Bauer acted unreasonably in
not immediately reporting the accident to MSHA at the time of
its occurrence. Alchough Mr. Hayhurst did not testify in this
case1 based on the testimony of Mr. Stump and Mr. Bauer, thece
is a strong inference that Mr. Hayhurst relied on the information gi •..ren to him by Mr. Stump. The fact that Mr. Stump may
have told Mr. Hayhurst that Mr. Mullens may have sustained
"possible internal injuries," does not in my view support any
reasonable conclusion that such undiagnosed injuries, the
extent of which were not known, presented a reasonable
potential for death. Insofar as Mr. Bauec is concerned, he
first learned of Mr. Mullens' injuries through Mr. Hayhurst
who informed him of Mr. Stump's assessment that Mr. Mullens
was stable and that his li~e si~ns were good. Mr. Bauer also

834

personally observed Mr. Mullens when he helped remove from the
ambulance, and Mr. Mullens was conscious and speaking freely
with him and the medical personnel who were present while
explaining what had occurred to him. Under the circllinstances,
I cannot conclude that Mr. Bauer had any reasonable basis for
concluding that Mr. Mullens' injuries had a ieasonable
potential for causing death, nor can I conclude that Mr. Bauer
acted unreasonably in not immediately reporting the accident
to MSHA at that point in time.
MSHA asserts that following Mr. Mullens' transport to the
hospital and examination by Dr. Bordonada, the respondent's
duty to immediately report the accident became even clearer,
because the doctor diagnosed some very serious and possibly
life threatening injuries to Mr. Mullens and ordered him
transferred by helicopter to another hospital. In addition to
Dr. Bordonada's diagnosis and treatment of Mr. Mullens upon
his arrival at the hospital, the evidentiary underpinning for
MSHA's conclusion that Mr. Mullens' injuries posed a reasonable potential for death, and thus were required to be
immediately be reported to MSHA at the time Mr. Mullens was
admitted to the hospital, is the doctor's opinion that the
injuries sustained by Mr. Mullens presented a reasonable
potential for death, the doctor's denials that Mr. Bauer or
any other management representative ever asked him whether the
injuries were life threatening or posed a reasonable potential
for de~th, and the doctor's assertion that if he had been
asked whether or not Mr. Mullens' injuries had a reasonable
potential for.death he would have answered_ in the affirmative.
Dr. Bordonada confirmed that he was initially informed by
radio by the paramedics who brought Mr. Mullens to the emergency room that he had been "crushed" by a continuous-mining
machine and was unconscious, and that the paramedics may have
called for a helicopter. In light of this initial call, the
doctor further confirmed that he had "great concern" because
"when you have injury like this, you thing right away of helicopter" CTr. 55). He believed that he asked· for the assistance
of a helicopter because of "my suspicion of the kind of injury
that needs more work-up and treatment and he should be taken to
another facility where they can provide these kind of diagnostic instruments" (Tr. 35). The doctor also confirmed that he
called for the helicopter to transfer Mr. Mullens to the
West Virginia University Hospital and spoke with a doctor at
that hospital who agreed to the trans£er CTr. 28, 35, 49). He
also confirmed that the call for the helicopter was placed at
approximately 11:00 p.m., and it arrived at the Braxton
Hospital at approximately 12:00 midnight, and left with
Mr. Mullens at 12:30 a.m. (Tr. 49-50).

835

Dr. Bordonada confirmed that when he first observed
Mr. Mullens, he was conscious, his blood pressure was within
normal limits, and his pulse and respiratory rates were high.
He also indicated that Mr. Mullens was scared, and he agreed
that it was possible that this would cause elevated pulse and
respiratory rates (Tr. 40). The doctor also confirmed that
his concern with respect to the life threatening aspects of
Mr. Mullens' injuries focused on his belief that Mr. Mullens
may have sustained a ruptured spleen, and that his conclusion
in this regard was reached sometime after he had done an
abdominal t3.p sometime after 10:45 p.m. (Tr. 48). He also
confirmed that a ruptured spleen presents a problem in that a
patient may go into shock (Tr. 32, 49). He agreed that the
records from the West Virginia University Hospital ultimately
confirmed that Mr. Mullens did not have a ruptured spleen or a
fractured vertebrae, but that he did sustain a sprained leg, a
cut on his finger, and a bruise or contusion to the lumbar
plexus, or nerves supplying the leg (Tr. 52-53). When asked
whether these injuries posed a reasonably potential to cause
death, he responded "One Hundred percent no" (Tr. 53). The
doctor confirmed that none of the hospital records contain any
"form questions" as to whether oc not a patient's condition
may be "life threatening," and no such conclusions are
included in any of the reports (Tr. 38).
Although Dr. Bordonada qenied that Mr. Bauer ever asked
him whether or not he believed that Mr. Mullens' injuries were
life threatening or had a reasonable potential for causing
death (Tr. 35, 44), I conclude and find that his negative
answers were equivocal. For ~xample, when he was first asked
the question, or. Bordonada responded "I don't believe so" and
"I do not think so" (Tr. 36). When asked the same question on
cross-examination, he responded "I don't believe so" and "I
don't recall any conversation of such nature" (Tr. 44). When
asked whether he could have had such a conversation,
Dr. Bordonada replied "it's most possible, because I talk to
so many people when you get out of the room"· (Tr. 45). When
a~ked about a second conversation with Mr. Bauer with regard
to the same question, the doctor conceded that it was possible
that he had such a conversation with Mr. Bauer (Tr. 45).
Dr. Bordonada stated that since establishing his me~ical
in West Virginia in 1981, his hospital practice since
l1is residency has been confined to diagnosis and treatment in
the hospital einergency room, and that at the tirne of the accident on Decembar 7, 1987, he was the attending emergency room
doctor CTr. 21-22). He also stated that he had seen Mr. Bauer
at the emergency room, !{.new who he was, and knew that he
~ractice

836

worked for the respondent, and that whenever there was an
injury involving a miner, Mr. Bauer would be there. The
doctor also confirmed that he knew that Mr. Bauer was at the
emergency room asking questions (Tr. 44). He also confirmed
that he was the only doctor in the emergency room and that he
spoke to many people after he left the roof (Tr. 45, 56).
The testimony by Doctor Bordonada in this case was based
on his recollection of the accident which had occurred a year
prior to the hearing. His testimony was based on his review
of the Braxton Hospital emergency room outpatient records,
which included his notations concerning his diagnosis, observations, and certain test results incident to Mr. Mullens' treatment. Given the fact that Dr. Bordonada was obviously
preoccupied with attending to Mr. Mullens, the fact that he
was the only doctor on duty at the time, and had spoken to
many people in and around the emergency room~ I find it difficult to believe or expect that he would specifically and
unequivocally remember that he did not have the conversations
in question with Mr. Bauer. Contrary to MSHA's assertion at
page 15 of its posthearing brief that the doctor specifically
denied the conversation, Dr. Bordonada, on several occasions
during his testimony, conceded that while he had no recollection of the conversation, it was possible that such conversations took place. The doctor also conceded that he knew
Mr. Bauer as· an individual who appeared at the emergency room
whenever a miner was injured, and knew that he was at the
emergency room asking questions.
Respondent's safety director Edward Bauer confirmed that
he went to the. hospital pursuant to company policy that
required both he and Mr. McGregor to be notified anytime a
miner is injured and taken to the hospital. Mr. Bauer unequivocally testified that on two occasions during the course of
the evening of December 7, 1987, while at the emergency room,
he asked Dr. Bordonada whether or not Mr. Mullens' injuries
were life threatening. Mr. Bauer stated that he first asked
the doctor whether or not the injuries woul~ cause Mr. Mullens
to die, and later, upon the instructions ot the company president, Robert McGregor, he asked the doctor whether Mr. Mullens'
injuries had a reasonable potential for causing death.
Mr. Bauer confirmed that the doctor gave negative answers to
both questions. Mr. Bauer recalled the specific fo~n of the
Eirst question, and stated that he asked the doctor whether
there was "any chance at all that he (Mullens) would di-: from
those injuries" CTr. 176).
Mr. Bauer, who is also a trained Bmergency Medical
Technician (EMT), and who had knowledge of MSHA's accident

837

reporting requirements, confirmed that the doctor advised him
that he was concerned about the pain in Mr. Mullens' abdomen,
was not sure about his back, and that Mr. Mullens had some
abrasions on his hand and leg. Mr. Bauer stated that he made
notes concerning these reported injuries so that he could
report then to Mr. McGregor, but he could not recall.the doctor
telling him that he suspected a possible ruptured spleen or
internal abdominal injuries. In view of his EMT training,
Mr. Bauer asserted that if the doctor had told him that
Mr. Mullens had a ruptured spleen or blood in his abdomen, he
would have doubted the doctor's negative responses to his
inquiries as to whether Mr. Mullens' injuries were life
threatening, and immediately reported the matter to MSHA.
Mr.. Bauer maintained that he relied on the doctor's negative
responses in forming his opinion that Mr. Mullens' injuries
did not pose a reasonable potential for death.
Respondent's President, ~obert McGregor, confir~ed that
he was thoroughly familiar with MSHA's Part 50 reporting
requira~ents, including the requirement for reporting accidents involving injuries which present a reasonable potential
for causing death, and that he has often prepared and made
such reports during the years he has been in· the mining
business. Mr. McGregor corroborated Mr. Bauer's testimony
concerning his telephone communications with Mr. Bauer on the
evening of the accident, including Mr. Bauer's assertions that
he communicated to him the doctor's negative responses wLth
respect to whether or not Mr. Mullens' injuries were
potentially iife threatening. Mr. McGregor confirmed that he
first learned of the accident from Mr. Hayhurst who informed
him that Mr. Mullens had a leg injury and pain in his stomach,
but that his vital signs were good. Mr. Hayhurst did not
mention any internal injuries, and Mr. McGregor confirmed that
he pursued the matter further by calling the hospital to speak
to Mr. Bauer about Mr. Mullens' condition.
MSHA's assertion that the evacuation of Mr. Mullens to
another hospital by helicopter should have alerted mine management that his injuries posed a reasonable potential for death
is rejected. I find that or. Bordonada's call for a helicopter was prompted by the initial information he received before
his examination of Mr. Mullens which indicated that Mr. Mullens
had been "crushed" by a. heavy piece of equipment and was
unconscious. I believe the doctor ~cted out of an abundance of
caution, and he agreed that helicoptec assistance was necessary
to expedite Mr. Mullens' tran~Eec to a hospital which had the
capability for further treatment and diagnosls of Mr. Mullens'
injuries. Mr. Bauer testified that he made no inquiry as to

838

why Mr. Mullens was being taken to another hospital by helicopter because it was not uncommon to transfer patients out of
Braxton County by helicopter, and I find his testimony in this
regard to be credible and plausible. Further, I find no
credible evidence to establish that Mr. Bauer was aware of the
doctor's concern that Mr. Mullens may have sustained internal
injuries or a ruptured spleen, nor do I find any credible evidence to support any conclusion that Mr. Bauer was aware of the
details concerning the doctor's diagnosis of Mr. Mullens' suspected injuries. MSHA's assertions and transcript references
at page 11 of its brief that the respondent's witnesses
"recognized that the existence of internal injuries is life
threatening" are taken out of context. Although Mr. Bauer
admitted as much at (Tr. 180), he specifically qualified his
answer by stating that he had no factual knowledge that
Mr. Mullens had sustained internal injuries at the time he was
at the hospital.
On the facts of this case, and notwithstanding Inspector
Herndon's denials to the contrary, I believe that he formed an
initial opinion that the accident posed a reasonable potential
for death, and was thus required to be reported immediately,
because he considered the accident to be "serious" in that it
involved an incident where a miner was pinned against the rib
by a continuous-mining machine.
I also believe that
Mr. Herndon relied on his past experience in which incidents
of this kind have resulted in the deaths of the accident
victims.
Although Mr. Herndon asserted that he issued the citation
on the basis of certain medical information given to him by the
Y1itnesses who were interviewed durin·:;J the investigation, the
report is devoid of any statements or conclusions that
Mr. Mullens' injuries were life threatening, or posed a reasonable potential for death, and at page 3 of the report, (exhibit
P-6), Mr. Herndon states "Because the operator failed to notify
MSHA immediately of this serious accident, a citation was
issued for a violation of 30 C.F.R. § 50.10.·" Mr. Herndon conceded that no attempts were made to interview the hospital
doctors, or to review the hospital records with respect to
Mr. Mullens' injuries, and in my view the report is not particularly reliable. For example, at page 2, the report states
that Mr. Mullens was transferred to the west Virginia
University Hospit~l by ambulance, wh~n in fact he was transported there by helicopter.
Having viewed Mr. Bauer and Mr. McCormack during their
testimony, they impressed me as credible and strai9·htforward

839

witnesses, and I give credence to Mr. Bauer's consistent testimony, as corroborated by Mr. McCormack, that Dr. Bordonada
informed him that Mr. Mullens' injuries were not life threatening. I find Mr. Bauer's testimony regarding his two conversations with Dr. Bordonada to be believable and plausible, and
while I have no reason to believe that the doctor was not
telling the truth, I simply find his testimony to be too equivocal to support any conclusion that the conversations did not
take place. Although Dr. Bordonada's medical opinion,
expressed at the hearing after his review of his prior notations and the hospital records, that Mr. Mullens' injuries had
a reasonable potential to cause death at the time the doctor
treated him, is unrebutted, I find no credible or probative
evidence to support any finding that this opinion was communicated to Mr. Bauer, Mr. McCormack, or anyone else in mine
management, after Mr. Mullens was taken to the hospital. 'Nor
do I find any credible or probative evidence to establish that
anyone in mine management had any reasonable ba~is ~or believing that Mr. Mullens' injuries posed a reasonable potential
for death. Lacking any such knowledge, I further find no basis
for concluding that the respondent had a duty to immediately
report the accident while Mr. Mullens was at the Braxton
Hospital emergency room awaiting transportation to another
hospital, or that its failure to do so was imprudent or
unreasonable in the circumstances. Accordingly, I conclude
and find that a violation ha~ not been established, and the
citation IS VACATED.
Bact of Violation - 30 C.F.R. § 50.12
Citation No. 2944552, charges the respondent with
altering the accident scene by continuing mining operations
after Mr. Mullens' was removed from the mine and taken to the
hospital. The cited mandatory standard section 50.12 provides
as follows:
Unless granted permission by a MSHA
District Manager or Subdistrict Manager~ no
operator may alter an accident site or an
accident related area until completion of all
investigations pertaining to the accident
except to the extent necessary to rescue or
recover an individual, prevent or eliminate an
imminent danger, or prevent destruction of
mining equipment.
·
In view of my findings and conclusions that the respondent had
no duty to immediately i:-eport the accident in question, I find
no basis for concluding that it had a duty to maintain the

840

status quo at the accident scene. Accordingly, I find no
basis for concluding that the respondent violated the cited
standard, and the citation IS VACATED.
ORDER

In view of the aforesaid findings and conclusions, the
contested section 104(a) Citation Nos. 2944551 and 2944552,
A'RE VACATED, and the petitioner's proposals
assessment of
civil penalties for the alleged violations in question are
DENIED AND DISMISSED.
.
.

for

I~

org ~. Koutras
dministrative Law Judge
Distribution:

Susan M. Jordan, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)

w. T. Weber, Jr., Esq., 208 Main Avenue, Weston, WV 26452
(Certified Mail)
/f b

841

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

MAY 5 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
FALKIRK MINING COMPANY,
Respondent

.
.
.

.
.
:
..

CIVIL PENALTY PRCX::EEDING
Docket No. CENT 88-63
A.C. No. 32-00491-03506
Falkirk Mine

DECISION
Before:

Judge Cetti

This case is before me upon petition for civil penalty filed
by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine safety and Health Act of 1977, 30. u.s.c. S 801 et
seq., the "Act", charging the Falkirk Mining Company (Falkirk)
with 1 violation of the regulatory standard at 30 C.F.R.
S 50.20(a) for the failure to report an alleged occupation injury
to the Federal Mine Safety and Health Administration (MSHA).
On April 16, 1987, MSHA inspector Iszler issued Citation No.
2831514 to Falkirk at its mine in Underwood, North Dakota. The
citation charges that Falkirk failed to report an occupational'
injury of one its employees, Ronald s. Weisenberger, in violation
of 30 C.F.R. § 50.20(a).
The citation charges as follows:
Records indicate this mine did not report to MSHA an
occupational injury on form 7000-1. Mr. Ronald Weisenberger received a job related back injury on 6/16/86, saw
a chiropractor on the 17th but did not return to work on
the 18th. He took vacation time on ~/ 18, 19·, 20, 23, 24
and returned to work on the 25th. Mr. Doug Herper with
MSHA Education and ~raining performing the audit has indicated a violation of Section 50.20(a) exists. It is
suggested form 7000-1 for this incident be completed and
mailed to MSHA as required.
The violation was terminated by Falkirk reporting the
alleged occupational injury on Form 7000-1 which it mailed to
MSHA "under protest".

842

Pursuant to agreement of the parties the case was submitted
on a stipulation of facts and briefs. The parties filed the
following stipulation of facts:
The parties, by and through their undersigned counsel, do
hereby stipulate to the following as relevant facts that may be
accepted as being true and verified:
STIPULATION OF FACTS
1. Ronald s. Weisenberger ("Weisenberger") is employed by
the Falkirk Mining Company at its Falkirk Mine in Underwood,
North Dakota as a Utility Person and has held this position
since January 2, 1980.
2.
On June 16, 1986, at approximately 7:22 a.m.,
Weisenberger strained his lower back while helping to
install a one-ton overhead crane on the ceiling of a
building at the Falkirk Mine.
3. Weisenberger completed his shift, which ended at 8:00
a.m.

4. After completing his shift, Weisenberger went home and
slept until about 6:00 p.m. When he got up, his back was
stiff~ so, he went to see a chiropractor, Dr. Lester, who
is located in Bismarck.
·
5. The procedure performed by Dr. Lester did not help
Weisenberger's back. In fact, the procedure made his back
sorer than it was before. As a consequence, Weisenberger
went to see a medical doctor, Dr. Johnson, at the Quain and
Ramstad Clinic in Underwood, North Dakota. Dr. Johnson said
Weisenberger had pulled a muscle in his lower back ·and
prescribed a pain reliever and muscle relaxants but did not
place any restrictions on Weisenberger's ability to work.
6. Before Weisenberger saw Dr. Lester, he could have worked
on June 17 and 18, 1986 and performed his normal job duties.
After Weisenberger saw Dr. Lester, he might not have been
able to perform all of his normal job duties on those days.
7. Prior to June 16, 1986, Weisenberger scheduled
vacation on June 19 through 24, 1986.

843

8. On June 16, 1986, Weisenberger asked and was given
permission to take June 17 and 18, 1986, as vacation days,
because his sister, who lives in Portland, Oregon, was
coming to town, and because he wanted to attend the jubilee
festival in Tuttle, North Dakota.
9. Attached hereto as Exhibit 1 and made a part hereof is
a true and correct copy of the instructions for the Mine
Accident, Injury and Illness Report -- MSHA Form 7000-1
which are still in use.
10. Prior to December, 1986 neither the Federal Mine Safety
and Health Administration nor the Federal Mine Enforcement
and Safety Administration published any document which
interpreted "medical treatment" as used 30 CFR Part 50 to
include chiropractic.
11. Attached hereto as Exhibit 2 and made a part hereof is
a copy of Citation No. 2831514 which was issued by MSHA to
the Falkirk Mining Company on April 16, 1987.
12. Attached hereto as Exhibit 3 and made a part hereof is
a true and correct copy of the Conference Worksheet prepared
by J.W. Ferguson of MSHA in connection with the .incident
in controversy.
DISCUSSION
30 C.F.R § 50.20Ca) requires that an operator report an
occupational injury to MSHA within ClO) working days after the
occupational injury occurs. The regulations specifies that the
operator is to use MSHA's Form 7000-1 in making such reports.
"Occupational Injuries" is defined in 30 C.F.R. § 50.20Ca>
as follows:
••• any injury to a miner which occurs at a mine for which
medical treatment is administered, or which results in
death or loss of consciousness, inability to perform all
job duties on any day after an injury, temporary assignment
to other job duties, or transferred to another job.
In this this case it is undisputed that Falkirk's employee
on June 16, 1986 strained his lower back while helping to install
a one-ton over head crane on the ceiling of a mine building
approximately 30 minutes before he completed his midnight shift.
He went home slept all day until he awoke with a stiff back. His
stiff back was sore and painful so he went to see a chiropractor
'for tr~atment that would give him relief. When the chiropractor's treatment did not give him the relief he needed

844

(actually made his back sorer) he went to see a medical doctor,
Dr. Johnson, at the Quain and Ramstad Clinic in Underwood, North
Dakota. Dr. Johnson diagnosed his back condition as a pulled
muscle in his lower back and administered medical treatment
consisting of a prescribed pain reliever and muscle relaxants.
The most reasonable inference to be drawn from the
stipulated facts is that the injured employee sustained injuries
of his lower back consisting of a pulled muscle. After sleeping
all day his injured back was so· stiff and sore he went to see a
chiropractor to obtain relief and when the chiropractor's
treatment did not produce the desired relief he was still in need
of treatment that would give his back relief. He obtained treatment from the medical doctor because his need for treatment of
the condition that resulted from the original injury as well as
any relief that may have been desirable from the increased pain
caused by the chiropractor's treatment.
I am therefore satisfied from the evidence presented and
the reasonable inferences to be drawn from the established facts
that we have in this case a miner who sustained an on the job
injury at a mine for which medical treatment was administered.
The injury wa~ not reported within the required time. Consequently I find there was a violation of 30 C.F.R § 50.20(a) as
alleged in Citation No. 2831514.
When the parties file their stipulated facts they attached
as part of the record three exhibits. Exhibit 1 which is discussed in stipulation No. 9, is a copy of the form and instructions for the Mine Accident, Injury and Illness Report
--MSHA Form 7000-1. This form was in use at the time of Mr.
Weisenberger's June 16, 1986 back strain. Exhibit 2 is a copy of
Citation No. 2831514 which is the citation in question and
Exhibit 3 which is a copy of the conference worksheet prepared by
J.W. Ferguson of MSHA in connection with the incident and
citation in controversy.
With respect to Exhibit 3 the Solicitor in his brief points
out that the belief or opinions of investigators and supervisors
held, at various points in time, on the subject of whether the
violation did or did not exist, are not relevant nor are they
reasonably calculated to lead to admissible evidence under Rule
2060 of the Federal Rules of Civil Procedure.
·
This principal has been enunciated by the Courts in a number
of decisions. For example, in United States v. AT&T, 524 F.Supp.
1381 (D.C. 1981), the defendants wished to buttress the
proposition that they acted reasonably, in light of FCC decisions
and policies, by eliciting the testimony of the Commissioners.
The Court denied them the opportunity, stating:

845

"Extrinsic evidence as to how and why the FCC reached its
decisions and what it intended thereby - either by Commissioner's speaking in their individual capacities or by
employees of the FCC - are irrelevant to the question
whether defendants' compliance was reasonable."
ID. at 1387 (emphasis added).
The Court noted that "[i]t is likewise clear that inquiry
into such matters would not yield relevant evidence," and that
"it makes no difference - it is not relevant - what a particular
Commissioner or staff member might say today about what he
understood a particular decision to mean".
Similarly, in SEC v. National Student Marketing Corp., 68
F.R.D. 157, 160 (D.D.C. 1975), aff'd 538 F.2d 404 (D.C. Cir.
1976). cert. denied 429 U.S. 1073 (1977), defendants sought
various internal documents in order to explore the "intent,
reason, and motive" behind any agency memorandum. The Court·
found that "[nJone of the requested documents is relevant",
stating:
"The intent [or purpose] of a governmental agency ••• is
a rather limited concept which cannot be determined from
a random search of documents authored by agency staff or
individual [officials] ••• while [officials] may in fact
respect the staff's recommendations, they are not bound
by them nor do such recommendations reflect the position .
of the agency as a whole. The great bulk of the documents
requested by defendants... consist, with a few exceptions..
of memoranda among individual [agency officials], their
legal assistants, and the [agency] staff. Therefore they
are of little, if any, value and cannot be considered an
official expression of the will and the intent of the
[agency]."
In yet another action the plaintiff requested Federal Power
Commission staff memoranda in various matters as to which
plaintiff claimed that the Commission favored its legal position.
The Court of Appeals for the Second Circuit denied disclosure,
"because the views of individual members of the Commission's
staff are ~ legally germane, either individually or
collectively to the actual making final orders. They could be
grossly misleading, when applied to the ultimate findings and
conclusions reached by the FCC as a· whole, because at best
theyare only advisory in character. International Paper Co. v.
Federal Power Commission, 438 F.2d 1349, 1358 (2d cir.> cert
denied, 404 U.s. 827 <1971 >(emphasis added). ·
Here, as in the cited cases, an internal document reflecting
a staff person's.proposals, analyses, recommendations, and

846

conclusions have no value on the issue before me. The fact is
that MSHA issued Citation No. 2831514 alleging a violation and
has not retreated from its contention.
I have considered the statutory criteria set forth in
Section llOCi) of the Act for determining the appropriate penalty
for this violation. Under the facts and circumstances stipulated
by the parties I find that the $20 penalty proposed by the Secretary is the appropriate penalty for the violation.
This decision wa.s decided, written and issued on the
stipulated facts submitted for decision by the parties. Before
issuing the Decision I served a copy of my proposed decision on
the parties on April 19, 1989, with a notice of intention to
issue the decision unless the parties within ten days showed good
cause in writing why the Decision should not be issued. The only
response has been a motion filed April 26, 1989 to approve a
settlement in the amount of $20.00. Neither the proposed settlement nor any other writing filed by the parties shows any good
reason or cause why the decision should not be issued. Therefore
the decision is issued and the proposed settlement disapproved.
ORDER
Citation No. 2831514 is affirmed. Falkirk Mining Company is
directed to pay a civil penalty of $20.00 within 30 days of the
date of this decision.

Distribution:·
Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Andrew S. Good, Esq., 12800 Shaker Boulevard, Cleveland, OH
44120 (Certified Mail)
/bls

847

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

MAY 8 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING

.
..

Docket No. VA 89-13-M
A.C. No. 44-02965-05517

:

:
A. H. SMITH STONE COMPANY,
Respondent

Louisa Plant

.
DECISION

Appearances:

Jack E. Strausman, Esq., Office of the
So1icitor, u~s. Department of Labor, for
Petitioner~

Ms. Lisa Wolff, Director of Safety/Governmental
Affairs, A. H. Smith Stone Co., for Respondent.
Before:

Judge Fauver

This case was brought by· the Secretary of Labor for a
civil penalty for an alleged violation of a safety standard,
under § llOCa>. of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801 et seq. 1
At the conclusion of the hearing, oral arguments were
heard and a bench decision was issued. This decision
confirms the bench decision and assesses a civil penalty for
the violation found.
A preponderance of the substantial, reliable, and
probative evidence establishes the following 'Findings of Fact
and additional findings in the Discussion that follows.
FINDINGS OF FACT
1. The parties have stipulated that Respondent's Louisa
Plant is subject to the jurisdiction of the Act, and that the
judge has jurisdiction over this proceeding.
2. On July 19, 1988, Respondent operated a Terex
front-end loader without an operable backup alarm. This
equipment is a large, heavy duty vehicle that has an
obstructed view to the rear.

848

3. The vehicle was equipped with a backup alarm which
had been defective for about two weeks before July 19, 1988.
4. Federal Mine Inspector Charles E. Rines observed the
defective equipment on July 19, 1988, and, at 10:15 a.m.,
issued a citation charging a violation of 30 C.F.R. § 56.9087.
The inspector delivered the citation to 'Respondent's
supervisor, Clifford Ketts. The citation gave Respondent
until
7:00 a.m. the next day to .abate the cited
condition.
5. The following morning, after 7:00 a.m., the
inspector inspected the loader and found that the backup
alarm was not repaired. He waited for Clifford Ketts to
arrive, and about 9:00 a.m., he told Mr. Ketts that the
backup alarm had not been repaired, and that it must be
repaired by 7:00 a.m. the next day. Mr. Ketts said he would
take care of it.
6. The next morning, July 21, the inspector observed
that the backup alarm had still not been repaired.
At 9:30
a.m., he issued a § 104Cb) order forbidding use of the loader
-until the violation was abated. The inspector remained at
the Louisa Plant the rest of the day.
7. He returned to the plant the next morning, Friday,
July 22, 1988, to check on another matter involving a
plant-wide withdrawal order that had been issued forbiddin~
all production. operations until abatement of other cited
conditions. While the inspector was at the plant, Mr. Ketts
told him a mechanic was on the way from Richmond, Virginia,
to repair the backup alarm. By the time the inspector left
the plant, several hours later, the mechanic had still not
arrived although the Louisa Plant is only about 50 miles from
'Richmond.
8. The following Monday, July 25, 1988 ,· the inspector
inspected the backup alarm and found that it had been
repaired. He therefore issued a termination of the citation
and its related order.
DISCUSSION WITH FURTHER FINDINGS
The Terex loader was operated wit~out an operable backup
alarm for two weeks before Citation 3045446 was issued. The
violation was easy to detect and should have been corrected
long before the inspector inspected the equipment on July 19,
1988. I find that the facts support the inspector's finding
of high negligence.

849

The loader was operated at the loading area where
customers were on foot. Operating the loader without an
operable backup alarm presented a high risk of serious
injury, including a fatality. The facts thus support the
inspector's finding of a significant and substantial
violation.
Respondent did not make a reasonable effort to abate the
violation in the time allowed by the citation. The inspector
was therefore justified in issuing a § 104Cb) order.
Government Exhibits 4 and 5 are compliance printouts for
two of Respondent's mining operations for 24 months before
the citation. These show that, of a total of $3,732 in
assessed civil penalties, Respondent is in arrears for $489
for eight penalties 1/ that are not in litigation.
Failure· to pay final-assessments (uncontested or no longer
in litigation) is part of an operator's compliance history,
one of the criteria to be considered is assessing a civil
penalty under § llOCi> of the Act. ~espondent has submitted
a letter stating that it is "missing paperwork" regaiding
these assessments, and has requested duplicate copies from
MSnA's Civil Penalty Compliance Office. If further states it
will work to close these matters "as soon as possible." I
will credit this representation of prompt future disposition
of the outstanding assessments.
In addition to the above final civil penalties, the
Solicitor's letter of April 26, 1989, states that other civil
penalties in the printouts are also final and overdue. These
additional penalties are about $435.

1/

The delinquent penalties, identified in the exhibits as
·

"DLTR" (for Demand Letter), are as follows:

Citation

Civil Penalty

2852078
2852601
2852602
2852605
2852606
2852607
2852608

$ 20.00

50.00
50.00
105.00
105.oo·
119.00
20.00
20.00

2852609

$489.00

850

The record thus indicates that, of $3,732 in civil
penalties shown on the printouts, penalties of about $925 are
overdue and unpaid.
At the hearing Respondent introduced a letter, "To Whom
It May Concern," from two partners, stating that A. H. Smith
Associates, Louisa, Virginia, has been "in net profit (loss)
position" for fiscal years 1987 and 1988 and that payment of
a $395 penalty will "adversely affect the company." I find
that this statement, without the opportunity for the
Secretary to cross examine the authors, and without a fuller
showing of Respondent's financial condition, e.g., net worth,
unincumbered assets, revenues, equity, and tax returns, fails
to establish a financial hardship defense. Section llO(i) is
concerned with the impact of a civil penalty "on the
operator's ability to continue in business." Respondent's
letter is insufficient to address this issue.
Respondent, as a mining enterprise, is a large operator.
Considering all of the criteria for a civil penalty in
find that a civil penalty of $395 is
appropriate for the violation found herein.
§ llO(i) of the A.ct, I

CONCLUSIONS OF LAW

1.

The judge has jurisdiction over this proceeding.

2.
Respondent violated 30 C.F.R. § 56.9087 as charged
in Citation 3045446.
ORDER
WHEREFORE IT IS ORDERED that:
1.

Citation 3045446 is AFPIRMED.

2.

Order 3045450 is

AFFI&~ED.

3. Respondent shall pay the above assessed civil
penalty of $395 within 30 days of this Decision.

U);~~ ::rM4t'MWilliam Fauver

~dministrative

851

Law Judge

Distribution:
Jack B. Strausman, Esq.,Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203 (Certified Mail)
Ms. Lisa Wolff, Director of Safety/Governmental Affairs,
A. H. Smith Stone Co., 9101 Railroad Avenue, Branchville, MD
20740 (Certified Mail)
iz

852

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

MAY 8 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

COLORADO SILICA SAND, INC.,
Respondent

.: CIVIL PENALTY PROCEEDING
: Docket No. WEST 88-337-M
: A.C. No. 05-03295-05514
.
..: Wolf Pit No. 1 and Plant
:

DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor
U.S. Department of Labor, Denver, Colorado
for the Petitioner1
Mr. Lennart T. Erickson II, Vice-President,
Colorado Silica Sand, Inc., Colorado Springs,
ColoJ:'.ado, pro ~·

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges respondent with violating
a safety regulation promulgated under the Federal Mine Safety
and Health Actr 30 u.s.c. S 801 ~seq., (the Act>.
After notice to the parties a hearing on the merits was held
in Denver, Colorado on April 25, 1989.
The parties waived their right to file post-trial briefs,
submitted their cases on oral arguments, and further waived
receipt of the transcript and requested an expedited decision.
summary of the Case
Citation No. 3065071 charges respondent with vi.elating
30 C.F.R. S 56.14006, which provides as follows:

S 56.14006

Placement of guards during
during machinery operation.

Except when testing the machinery,
guards shall be securely in place while
machinery is being operated.

853

Stipulation
At the commencement of the hearing the parties stipulated
as follows:
1. The operator has 13 miners working two shifts1 the
company is a medium-sized operator.
2. The imposition of a civil penalty will not impair the
company's ability to continue in business.
3.

Abatement was rapidly accomplished in this case.
secretary's Evidence

ARNOLD B. KERBER, an MSHA inspector, is a person experienced in mining and mine safety. He has been an inspector for
approximately 15 years.
The witness is familiar with the Wolf Pit No. 1-mine
located in El Paso County, Colorado. Both the plant and pit
are under MSHA's jurisdiction.
The company uses front-end loaders to remove silica sand·
from a hillside deposit. From there it is trucked to the plant
site where it is eventually fed into hoppers.
On June 21, 1988, the inspector met Jack Wright, the
superintendent of maintenance, at the work site. They toured
the plant looking for any unsafe.conditions.
At the plant the silica sand is conveyed by a brown crossover belt conveyor. The conveyor transfers the sand between
storage bins1 it is transported from the north side to the south
side of the plant. The belt conveyor is 36 feet long1 the belt
itself is 24 inches wide.
·
The conveyor runs continually except when it is.shut down.
On June 21, 1988, the inspector observed the guard at the
head pulley of the conveyor lying on the ground. The conveyor is
usually completely covered. However, on this occasion there was
no guard at the head pulley where the belt meets the top roller.
The exposed area was 18 inches by 12 inches.

854

The opening itself was 48 inches above the ground and if
a person fell he could become 'entangled with the head pulley.
If this occurred it would be possible to suffer the loss of an
arm. In addition, there was quite a bit of silica sand spillage
in the area; sand of this type can be slippery and walking in it
can be difficult.
On the day of the inspection the belt was not being tested;
further, company representative Wright did not claim it was being
tested.
There was a regular track where workers travel near this
area and the missing guard was in plain view.
On the day the citation was issued the conveyor had been
operating and there was materiql on the belt.
The inspector learned that three employees had come in
at 5:00 a.m. and the balance of the employees had come in at
about 8:00 a.m. when the regular shift begins. The citation
was written at approximately 11:00 a.m. It was terminated the
next day when the inspector returned to the site. At that time
the guard was back in place.
During the balance of the day the inspector reviewed the
records that MSHA requires the company to keep. On June 22,
1988, the following day, he tested employees «for silica as well
as noise exposure. On June 23 he was there for a short time
for a close-out conference.
When conducting the inspection it was windy.
reduced visibility in the area.

Dust and sand

The guards of the conveyor themselves were corrugated metal
and usually connected to the conveyor. (See Exhibits R-1, R~2,
R-3, R-5). The inspector did not learn who had removed the
guard.
In cross-examination the inspector indicated he has received good cooperation from the company. He had also inspected
the company in March 1987. He had previously asked the company
to move a guard about 6 inches forward; he had also issued a
citation for that condition. However, there had been no conversation about the particular head pulley that resulted in the
instant citation.

855

The company was operating the plant because the inspector
would not have written the citation as S & S unless the plant
was operating. A good portion of the inspector's activities
concentrate on pointing out exposed pinch points to the company
representatives.
Operator's Evidence
LENNART T. ERICKSON, II is a Vice-President of the company
in charge of finance and administration.
The particular silica mined by the company is harder and
rounder than a river run. The company's silica, a dune deposit,
runs about 95 percent silica sandi a river run is approximately
65 percent.
Mr. Erickson was not present when Inspector Kerber issued
his citation. However, his duties require that he inyestigate
all MSHA citations. In connection with this citation he talked
to Dale Correll (plant superintendent), Jim Wright (maintenance
supervisor), and Bill Hoss (mechanic).
These three men are no longer with the company and they
told him that they were to fasten the guard covers. This could
only be accomplished by a tack weld. Mr. Erickson also learned
from investigation that the previous night the conveyor guard
had blown off. The morning of the investigation it was to be
replaced and welded.
In addition, the conveyor was not in operation.
The company tries to follow MSHA's rules and regulations.
On cross-examination, the witness agreed that it had been
some months before, at a prior inspection, when they had been
told by the inspector to move a guard forward.
Company employee Correll told Mr. Erickson the plant was
not operating at the time of the inspection nor had the conveyor
been running that day. The plant can be in operation without
the conveyor operating. The conveyor runs about 50 percent of
the time.
,
The normal shift of the company starts about 8:00 a.m.
The company's position that the conveyor was not in operation is set forth in the company's letter dated December 15,
1988, which is in its answer filed in the case.

856

Discussion
A credibility issue arises here as to whether the plant
was operating at the time of the inspection.
On this issue I
credit the inspector's testimony: the citation was issued about
11:00 a.m. when the full work force of thirteen workers was on
the site. I reject the operator's contrary evidence which is
admittedly hearsay with only minimal foundation. ··
The regulation involved here requires that a guard shall
be securely in place "while machinery is being operated."
The credible evidence establishes that the conveyor at the head
pulley was not in place. In fact, it was lying on the ground.
The inspector indicated that the conveyor was not being tested
and the company representative accompanying him did not claim
that any such test was taking place.
The credible evidence in the case establishes that
the conveyor was neither conveying material nor moving at
the time the citation was issued. However, I infer the conveyor was nevertheless "being operated" as that term is.used
in§ 56.14006. It is apparent that the conveyor supplies
silica to the plant about 50 percent of the time. Since the
plant itself was operating I infer the conveyor was also
being operated. To like effect, ~ Freeport Kaolin Company,
2 FMSHRC 233, 250, 251 (1980) (Cook, J), and The Hanna Mining
Company, 2 FMSHRC 1446, 1453 (1980) (Broderick, J).
On the uncontroverted credible evidence it appears that
a violation of § 56.14006 existed.
At best, the company's defense is that the wind had
blown the guard off of the conveyor and that the company had
three hours to find and remedy this condition. The company's
defense cannot prevail. The fact that it had only three
hours to find and remedy the defective condition relates to
the company's negligence and not as to whether a violation
occurred. Negligence is a factor to be considered in the
imposition of a civil penalty.
· Since the uncontroverted evidence shows the guard was not
in place and the conveyor was in operation, a violation occurred
and Citation No. 3065071 should be affirmed.

857

Civil Penalty
The statutory criteria to assess civil penalties is contained in section llOCi> of the Act.
The evidence shows that for the two years ending June 20,
1988, the operator was assessed for 29 violations of safety
regulations. (Exhibit P-1).
The stipulatio~ of the parties indicates the company is
a medium-sized operator. The company's negligence must be
considered low in that it had a relatively short period of
time to discover and correct this violative condition. The
stipulation indicates that payment of a penalty will not cause
the operator to discontinue its business. The gravity of the.
violation is high since a miner could be severely injured if
he became entangled with the exposed pinch point. The operator
is entitled to its statutory credit for good faith since it
rapidly abated the violative condition.
On balance, I deem that a civil penalty of $40 is appropriate.
ORDER
Based on the foregoing finding of fact and conclusions of
law I hereby enter the following order:
Citation No. 3065071 is affirmed and a penalty of $40 is
assessed.

Law Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294 (Certified Mail)
·
Mr. Lennart T. Erickson II, Vice-President, Finance & Administration, Colorado Silica Sand, Inc., 3250 Drennan Industrial
Loop, P.O. Box 15615, Colorado Springs, CO 80935 (Certified
Mail)
/ot

858

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

MAY 9 1989
OZARK-MAHONING COMPANY,
Contestant

v.
SECRE'rARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

.: CONTEST PROCEEDING
:

Docket No. LAKE 88-128-RM
Citation No. 3260151; 3/4/88

:
:

Annabel Lee Mine
Mine ID 11-02780

..
:

CIVIL PENALTY PROCEEDING
Docket No. LAKE 88-108-M
A.C. No. 11-02780-05507

v.
OZARK-MAHONING ·COMPANY,
Respondent

. Annabel Lee Mine

DECISION
AND
ORDER OF DISMISSAL
Appearances:

Victor Evans, General Manager, Ozark-Mahoning
Company, Rosiclare, Indiana, for the
Contestant/Respondent;
Miguel J. Carmona, Esq., Office of the
Solicitor, U.S. Department of Labor, Chicago,
Illinois, for the Respondent/Petitioner.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern a proposal for
assessment of civil penalty initiated by the petitioner (MSHA)
against the Ozark-Mahoning Company (hereinafter respondent),
pursuant to section llOCa> of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 820(a), seeking a civil penalty
assessment in the amount of $74 for an alleged violation of
mandatory safety standard 30 C.F.R. § 57.12015, (Docket No.
LAKE 88-108-M). Docket No. LAKE 88-128-RM, concerns a separate

859

contest filed by the Ozark-Mahoning Company challenging the
validity of the citation.
A hearing was convened in Evansville, Indiana, and the
parties appeared and participated fully therein. The parties
waived the filing of written posthearing arguments. However,
they were afforded an opportunity to present oral arguments at
the conclusion of all testimony, and I have considered the
arguments in the course of my adjudication of this matter.
Issues
The issues presented in these proceedings are Cl) whether
the conditions or practices cited by the inspector constituted
a violation of the cited mandatory safety standard, (2) the
appropriate civil penalty assessment to be made for the violation taking into account the civil penalty assessment criteria
found in section llOCi) of the Act, and (3) whether the violation was "significant and substantial." Additional issues
~aised by the parties are identified and disposed of in the
course of this decision.
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 llOCi> of the 1977 Act, 30

u.s.c. § 820Ci).

Stipulations
The parties stipulated to the following (Joint exhibit 1):
1. The mine involved in this case is subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977.
2 .. The administrative law judge assigned
to this case has jurisdiction in this matter.
3. The MSHA inspector who issued the
citation involved in this case was a duly
authocized representative of the Secretary of
Labor at all times relevant to this matter.
4. From March 4, 1986 through March 4,
1988, respondent committed three (3) MSHA
violations at its Annabel Lee Mine.

86Q

5. During the calendar year preceding the
issuance of the citation involved in this case
the operator accumulated a total of 55,837 hours
of work at its Annabel Lee Mine.
6. During the calendar year preceding the
issuance of the Citation involved in this case
the Ozark-Mahoning Company accumulated a total
of 232,648 hours of work at all the mines under
its control.
7. The Ozark-Mahoning Company demonstrated
its good faith by abating the condition involved
in the Citation in this case within the time
granted by the MSHA inspector.
8. Payment of the penalty assessed for
the citation involved in this case will not
affect the mine operator's ability to remain in
business.
Discussion
The section 104Ca) "S&S" Citation No. 3260151, in issue
in these proceedings was issued on March 4, 1988, and it cites
an alleged violation of mandatory safety standard 30 C.F.R.
§ 57.12016, and the cited condition or practice states as
follows:
An employee was observed working in the
skip under the man cage in the main hoist shaft
without de-energizing the power for the hoist
and locking the switch out. The hoist operator
was sitting at the hoist controls.
Petitioner's Testimony and Evidence
MSHA Inspector Gene Upton, testified as to his experience
and training, and he confirmed that he inspected the mine on
March 4, 1988, and issued the citation in question (exhibit
P-1). Mr. Upton confirmed that he issued the citation after
observing work being performed inside the skip bucket located
beneath the man cage used to carry men up and down the mine
shaft. The bucket is used to transport ore from the mine.
Since the hoisting electrical system was energized and not
locked out as required by section 57.12016, he issued the
violation.

861

Mr. Upton agreed that the skip bucket was approximately
4 feet high and that it moved up and down the shaft with the
man cage. He stated that the individual inside the bucket was
performing some metal patch work at the bottom of the skip
using welding and acetylene torch equipment, as well as other
tools. He considered the work being performed as "mechanical
work" within the meaning of the standard. The individual
performing the work was being assisted by another individual
who was outside the cage, and he was being used to bring
supplies to the area where the work was being performed.
Mr. Upton stated that the control booth which contained
the controls for operating the hoist and skip was located
approximately 200 feet away from the skip and that the hoist
operator was at the controls while the work was being performed. Mr. Upton also stated that the main disconnect swi.tch
which should have been used to deenergize the hoist was located
outside of the control booth approximately 15 to 20 feet away.
He found that the operator's hoist control switch located
inside the control booth and the main disconnect switch were
not deenergized and locked out.
Mr. Upton stated that the failure to deenergize and lock
out the hoist and skip presented a hazard in that in the event
of any inadvertent movement move of the skip up or down the
individual performing the work in the skip could have been
"banged around" or suffered burns from the ·welding torch he
was using, or he could have been entangled in the welding
cables and hoses. He was also concerned that a mix-up in any
signals between the hoist operator in the control room and the
person doing the work in the skip may have caused the skip to
move up or down since it ~as still energized, and if this
occurred, the individual could fall out of the skip. If he
did, it was reasonably likely that he would sustain injuries
of a reasonably serious nature. He also believed that it was
reasonably likely that in the event of any movement of the
skip while the individual was inside performing work, the
individual could be injured.
Mr. Upton stated that he based his "significant and substantial" finding on the fact that the individual working
inside the skip had to-rely on someone other than himself to
signal the hoist oper~tor who was in the booth, and in the
event of any mixed signals, it was reasonably likely that the
hoist would have moved at any time.
Mr. Upton confirmed that he made a negligence finding of
"moderate" because the skip operator was at the controls holding the hoist-brake, and the respondent knew or should have

862

known that it was required to use its lock out procedures
while the work was being performed inside the skip. He also
confirmed that the violation was timely abated within
10 minutes by shutting off and locking out the power switch
and hoist controls.
On cross-examination, Mr. Upton confirmed that his mining
experience does not include any shaft work· or work as a skip
operator or attendant. Upon review of the language found in
section 57.12016, he stated that he was not familiar with the
intent of the standard, and that other than deenergizing and
locking out the hoist, he was not aware of any exceptions or
"other measures" which would allow mechanical work to be
performed without locking out the equipment. He confirmed
that the hoist in question was not an "automatic" hoist, and
that it required someone to manually and physically be present
to operate and move it.
Mr. Upton stated that he has inspected similar hoists in
the past, and that such an inspection would include an examination of the drums, wire cables and ropes, head shafts and
cables, upper and lower lines, the "dead man" braking switch,
and all hoist controls. He confirmed that during the course
of testing the hoist cables, wire ropes, and drums, he uses a
guage which .requires him to touch the cables and ropes, and
that the drums are turning. He confirmed that during these
tests, the hoist is not deenergized or locked out because the
hoist must be 1noved to facilitate the testing. However,
someone is at the hoist controls while this is being done.
Mr. Upton also confirmed that while inspecting the hoist shaft
cables and guides, he needs to ride the skip and it is not
deenergized or locked out.
Mr. Upton confirmed that the hoist in question was
equipped with two sets of brakes, a "dead-man" braking switch
and device which is activated by foot pressure inside the
hoist. The hoist can be energized if foot pressure is applied
to this device, but as soon as the pressure is taken off, the
hoist will deenergize.
Mr. Upton also confirmed that the hoisting system included
an emergency stop switch and a brake safety lever. ae agreed
that in the event all of the aforementioned safety features
provided for the hoisting system were activated and in use, if
someone were to throw the main switch to the "on" position, the
hoist should not move. He conceded that it was unlikely and
unreasonable to expect that the hoist would move given the use
of these devices.

863

Mr. Upton agreed that the skip was raised above the level
of the shaft while the work was being performed, and that the
individual performing the work inside the skip was not required
to wear a safety belt or line. He agreed that the skip landing
was provided with hand rails and that the hoistman who was at
the skip controls had a fairly clear visible view of the
individuai performing the work inside the skip. He also confirmed that pursuant to the hoisting procedures and MSHA's
safety standards the individual at the hoist controls cannot
move the hoist without an appropriate signal.
Mr. Upton stated that it was his opinion that the failure
to deenergize and lock out the hoist was inadvertent, and he
asserted that when he spoke to the hoistman in the control
booth the hoistman advised him that he was not comfortable
being at the hoist controls without the main power swi"tch
deenergized and locked out.· Mr. Upton also confirmed that the
hoistman was not supervisirtg the work taking place_ in the
skip, and that the decision not to deenergize and lock it out
was apparently made by the individual supervising the work.
Respondent's Testimony and Evidence
Gary Austin respondent's maintenance supervisor, testified
that he has worked for the respondent for 20 years, and that he
is responsible for all of the mechanical maintenance work done
on the hoist and skip. He confirmed that he has moved and
re-installed the hoist on at least two occasions. He stated
that the hoist is equipped with twd brakes capable of holding
the hoist under a full load ~nd under full power. He also
stated that the hoist is equipped with a dead man's switch
which is activated by foot pressure on a button. This switch
requires that the power be on in order to operate, and when the
foot pressure is released, the brakes are automatically set.
The hoist system also has a safety stop switch, and a regulator
to control the air supplied braking systems.
·
Mr. Austin confirmed that he was in charge of the work
being performed in the skip, and that the individual performing
the work was installing a water seal on the bottom of the skip.
He stated that this individual had full control of the work and
the skip through the established signaling system, and that he
was in the view of the hoist control operator.
Mr. Austin stated that the hoist was not locked out
because the hoist and skip needs to be moved during the course
of any mechanical work, particularly when welding equipment
and acetylene hoses are used. This move1nent is necessary so
as to prevent the acetylene hoses from being caught, and to

864

provide a safe distance between the acetylene tanks and the
individual performing the work. Requiring the hoist power to
be locked out under these circumstances would be impractical,
particularly when the individual doing the work is within the
view of the hoist operator and proper signalling measures are
being used.
Mr. Austin stated that the brake handle purportedly being
held by the hoistman was in fact a $mall lever approximately 5
to 6 inches long which was engaged and locked out by means of
a notch on the lever. The lever was located on the hoist operator's control panel, and he· was not required to physically
hold any brake handle for the approximate 30 minutes it took
to complete the work on the skip.
·On cross-examination, Mr. Austin stated that the respondent does have equipment lock out procedures in effect but that
it was his decision not to lock out the hoist in question
because he did not believe it was necessary. He pointed out
that mandatory safety standard section 57.14029, which requires
the blocking of machinery to prevent movement and the turning
off of the power before any work is performed, provides an
exception where machinery motion is necessary to make
adjustments.
Mr. Austin confirmed that the hoisting system in question
was not an automatic system which can be turned on and off
automatically and inadvertently by someone out of sight of the
individual performing any work on the hoist.
Mr. Austin confirmed that he had the only hoist lock out
key in his possession on the day in question, and in the event
of any emergency underground, he would not want to be delayed
by going to the main switch to turn the power back on.
Although another hoist was available, it was diesel powered
and slow, and the hoist in question would be the quickest way
of travelling down the 1,000 foot shaft in the event of an
emergency.
Mr. Austin confirmed that at the time the work was being
perEormed on the skip, the hoistman was at the controls and
had a clear view of the individual doing the work. The hoist
had a voice box and bell signalling device for signalling the
hoistman, and the law prohibits the hoistman from starting or
moving the hoist unless he receives a signal to do so by the
person doing the work.

865

The parties waived the filing of written posthearing
briefs, but were afforded an opportunity to present the following oral arguments in support of their respective positions.
Petitioner's Argument
Petitioner's counsel asserted that there is sufficient
evidence which establishes that the work being performed on
the electrically powered hoist was in fact mechanical work.
He argued that the evidence clearly establishes that the
appropriate lock out procedures were not followed while this
work was being done, and that the hoist was energized and that
the power switch was not shut off and locked out.
Counsel asserted further that the inspector believed that
the "other measures" provision referred to in the cited section 57.12016, did not apply in this case, and that the hazard
presented concerned the possibility of a misunderstanding
during the exchange of signals between the individual doing
the work and the hoistman at the controls, and that in the
event of such a misunderstanding, the individual doing the
work would be exposed to the additional hazards testified to
by the inspector.
Respondent's Argument
Respondent's representative argued that its evidence has
established that the electrically powered hoisting system was
provided with two braking systems consisting of a dead man's
switch inside the hoist which automatically sets the brake
when no one is in the hoist and is not applying any foot
pressure to the activating switch, and an emergency stop
switch and brake safety lever located in the control room
which was locked out. He also pointed out that with all of
these systems engaged and operational at the time the work was
being performed on the hoist, and with the main power switch
in the "off position," even if the hoistman were to leave the
control booth for any reason, anyone deliberately or inadvertently turning the power on would not cause the hoist to move.
Respondent's representative argued further that the
second sentence of section 57.12016, contains an alternative,
and an exception, to·the requirement that power switches be
locked out, and that this alternative does not require any
lock out of the hoist power switch as long as other measures
are taken to prevent the hoist from being .energized without
the knowledge of the individuals working on it.

866

Respondent's representative asserted that the unrebutted
evidence and testimony adduced in this c~se establishes that
the individual performing the work on the hoist skip with the
assistance of a helper was within visual sight of the hoist
control operator and that appropriate signals were available
and in use, and the hoist operator was prohibited by law from
moving the hoist unless given an appropriate signal from the
individual performing the work. Since the individual performing the work w~s in complete control of the situation, and
given the e}tistence of the aforementioned hoist braking and
stopping devices which were clearly in place and operational,
and which prevented any inadvertent movement of the hoist by
someone engaging the hoist power switch without the knowledge
of the individual performing the work in the skip, respondent's
representative concluded that the other measures referred to in
section 57.12016 were clearly present, and that under these
circumstances, a violation has not been established.
Respondent's representative also pointed out that Inspector Upton conceded that when he was required to inspect the
hoist, skip, and shaft, the hoist was not locked out. Respondent also pointed out that pursuant to mandatory standard
section 57.14029, repairs or maintenance on machinery may be
performed without turning the power off and blocking the
machinery against movement as long as movement is necessary to
make adjustments.
In the instant case, respondent's representative maintained that some movement of the hoist was required
in order to facilitate the work being performed.
Findings and Conclusioris
Fact of Violation
Section 104(a) "S&S" Citation No. 3260151, 30 C.F.R.
§ 57.12016

The respondent is charged with a violation of section
57.12016, for failing to deenergize the power and locking out
the power switch for the man cage skip in question while work
was being performed on the equipment. The cited mandatory
3afety standard in question provides as follows:
Electrically powered equipment shall be
deenergized before mechanical work is done on
such equipment. Power switches shall be locked
out or other measures taken which shall prevent
the equipinent from being energized without the
knowledge of the individuals working on it.
Suitable warning notices shall be posted at the

867

power switch and signed by the individuals who
are to do the work. Such locks or preventive
devices shall be removed only by the persons
who installed them or by authorized personnel.
On the basis of the unrebutted credible testimony of the
inspector, I conclude and find that the hoist in question was
an electrically powered piece of equipment, that the skip
bucket was an integral part of the hoist, and that the work
being performed inside the bucket by the employee in question
was mechanical work within the intent and meaning of the cited
standard. I also conclude and find that the conditions cited
by the inspector fall within the scope of the cited standard.
The failure by a mine operator to deenergize electrically
powered equipment and to lock out power switches before any
mechanical work is done on the equipment has been consistently
held to constitute a violation of mandatory safety standard
30 C.F.R. § 57.12016, and the identical standa~d section
56.12016, applicable to surface metal and nonmetal mines.
See: MSHA v. Adams Stone Corporation, 7 FMSHRC 692, 706-707,
(May 1985); MSHA v. FMC Corporation, 4 FMSHRC 1818, 1821-22
(October 1982), petition for Commission review denied,
November 16, 1982; MSHA v. Greenville Quarries, Incorporated,
9 FMSHRC 1390, 1428 (August 1987).
In the FMC Corporation ·case, supra, the operator argued
that the power switch for the equi_pment being worked on was
deenergized by the worker by using an "off" switch which was
always in his view while he ~orked 4-1/2 feet away. Judge
Morris rejected this defense, and found that simply turning
the switch to the "off" position did not totally deenergize
the unit being worked on and that the failure to deenergize
the equipment established a violation.
In North American Sand and Gravel Company, 2 FMSHRC 2017
(July 1980), the judge affirmed a violation of section
56.12016, after finding that a mine operator simply removed
fuses when electrical equipment was down for repairs, and had
no lock-out procedure to insure that anyone working on the
equipment would not be injured by someone inadvertently .starting the equipment. Likewise, in Brown Brothers Sand Company,
3 FMSHRC 734 (March 1981), a violation was affirmed where it
was found that an employee working on a pump deenergized the
equip1nent by opening the power "knife" switch, but failed to
lock out the switch to prevent it from being energized without
his knowledge.

868

In Price Construction Company, 7 FMSHRC 661 (May 1985), a
welder with 25 years e~perience lost a leg when he was injured
by the rollers of a crusher he was working on. The accident
occurred when the plant foreman misunderstood the welder's
instructions and engaged a switch which had not been locked
·out and simply left in the "on" position. The plant superintendent admitted that he did not require padlocks to lock out
roller switches, and the existing "lock-out" procedures were
accomplished by merely turning off the generatQr and cutting
the switches. The judge found a violation of section 56.12-16,
and found that the company safety director admitted that he
knew that a padlock had to be used on the roller switch to
conform with the required lock-out procedures, and that it is a
generally understood practice in the mining industry that a
"lock-out" requires the use of a padlock.
In my view, the primary intent of section 57.12016 is to
insure that all electrically powered equipment is deenergized
before it is worked on. This is accomplished by deenergizing,
or shutting down, any main power switch that supplies power to
the equipment. A secondary intent of the standard is to insure
that the equipment is not inadvertently energized while the
work is being performed by someone turning the power switch
back on, and this is accomplished by requiring the physical
locking out of the switch by an appropriate lockout device. In
the case at hand, the inspector alluded to two hoist power
switches, one of which was the main power switch located outside of the hoist operator's control room approximately 15 to
20 feet away, and a second power switch located inside the room
on the hoist control panel. Both switches were neither deenergized or locked out.
Although I find some merit in the respondent's argument
that the language found in the second sentence of section
57.12016, provides for an alternative method of insuring
against any inadvertent energizing of the equipment while it
is being worked on, short of locking out the power switch, I
believe that this language only comes into play once the
requirements found in the first sentence for completely deenergi zing the equipment is complied with, and that any alternative
"other measures" for insuring against the inadvertent energizing of the equipment while it is being worked on may be considered in mitigation of any hazard, but may not serve as a
defense to the requirement found in the first sentence that all
such equipment be initially deenergized.
The respondent argues that it has not violated section
57.12016, because it complied with the second sentence of the
standard ·"Which it 11iews an exception to the require.nent that

869

power switches be locked out. This defense is rejected. The
clear and unambiguous requirements of the first sentence of
section 57.12016, mandates that electrically powered equipment
be deenergized b~fore any mechanical work is done on the equipment. I find no exceptions in the first sentence, ·and the
inspector's credible and unrebutted testimorty establishes that
the hoist main power disconnect switch, which was located outside of the control room, and some 15 to 20 feet away from
where the hoistman was located inside the booth, as well as a
second power switch inside the room, were not deenergized or
locked out during the time work was being performed on the
hoist skip bucket. Under these circumstances, I conclude and
find that the failure to deenergize and lock out these switches
constitutes a violation of section 56.12016, and the citation
IS AFFIRMED.
The respondent's defense that mandatory safety standard
30 C.F.R. § 57.14029, permits maintenance work to be performed
without turning of the power and blocking machinery against
movement is rejected. The respondent is not charged with a
violation of section 57 .14029, and that standard mak.es no mentioned of electrically powered equipment, the language found
in the cited section 57.12016.
'
The respondent's assertion that Inspector Upton conceded
that he did not deenergize or lock out the power when he conducts inspections of hoist equipment, is rejected as a defense
to the citation. While this may be true, I find a distinction
between an inspection of a hoist that necessarily requires
movement of the equipment in order to determine whether it is
functioning properly, and the welding work being performed in
this case. Notwithstanding the respondent's practicality
arguments to the contrary, I am not convinced that the welding
work being performed on the hoist, which took approximately
30 minutes to complete, required the movement of the hoist
while the work was being performed. Further, insofar as the
respondent's argument raises an inference of some form of
estoppel, it is rejected. See: Emery Mining Corporation v.
Secretary of Labor, 3 MSHC 1585 ClOth cir. 1984), affirming the
Commission's decision in Secretary of Labor v. Emery Mining
Corporation, 5 FMSHRC 1400 (August 1983).
Significant and Substantial Violation
A "significant and substantial" violation is described in
section 104(d)(l) of the Mine ~ct as a violation "of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." 30.C.F.R. § 814Cd)(l). A violation is properly

870

designated significant and substantial "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature."
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April
1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretacy
of Labor must prove: Cl> the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety-contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129, the Commission stated further as follows:
we have explained further that the third
element of the Mathies formula "requires that
the Secretary establish a reasonable likelihood
that the hazard contributed to will result in
an event in which there is an injury." U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance
with the language of section 104(d)(l), it is
the contribution of a violation to the cause
and effect of a hazard that must be significant
and substan.tial. U.S. Steel Mining Company,
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
S't"ee1 Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).

871

Maintenance Supervisor Gary Austin's credible and
unrebutted testimony reflects that the hoist in question was
equipped with several operational braking devices and safety
mechanisms which precluded any inadvertent movement of the
hoist, and that the hoist control operator was physically holding the brakes in place by hand. In fact, the brakes were
locked out by a lever at the control panel where the hoist
operator was stationed. Inspector Upton agreed that with all
of these braking devices in use, it was unlikely and unreasonable to conclude that the hoist would move, even if the power
switch were thrown to the "on" position. The hoist was not
controlled "automatically," and someone would have to manual
activate the controls to cause it to move (Tr. 23).
Although Mr. Upton believed that the hazard presented by
the violation involved a po~sible misunderstanding ln signals
between the hoist operator and the individual doing the work
inside the bucket, Mr. Austin's unrebutted testimony reflects
that the hoist was equipped with a voice box and bell
signalling devices for signalling the hoistman, and that the
hoistman is prohibited from starting or moving the hoist without receiving an apptopriate signal. Inspector Upton confirmed
that this was the case.
Mr. Austin, an experienced maintenance supervisor with
20 years of experience working for the respondent, including
hoist removal and replacement work,· testified that the
individual doing the work inside the hoist bucket had full
control of the work he was performing through the established
signaling system. Although Inspector Upton believed that the
individual doing the work had to rely on a helper who was
bringing him supplies to signal the hoistman, the evidence
shows that the helper was within 5 feet of the work which was
being performed, and Inspector Upton confirmed that the hoistman had a fairly clear visual view of the .hoist bucket at the
time the work was being performed (Tr. 27-28). Neither the
individual doing the work or his helper, or the hoist.man,
testified in this case, and I find no evidence or testimony to
support any conclusion that the helper was in fact giving any
signals to the hoistman, or that any of these individuals· were
ignorant of the appropriate signals or use of the signaling
devices. In short, I find no credible or probative evidence
to support any conclusion that there was a potential for any
misunderstanding in the signals or signaling procedures which
may have been in effect or in use at the time of the inspection. Further, as confirmed by the inspector, it was unlikely
and unreasonable to expect that the hoist would move even if
the power switch which was not locked out were thrown to the
"on" position. Under all of these_ circumstances, I cannot

872

conclude that the violation was significant and substantial,
and the inspector's finding in this regard is rejected and
vacated.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
Based on the stipulations by the parties,~! conclude and
find that the respondent is a medium-sized mine operator, and
that the particular mine in question was a small-to-medium
size operation. I also conclude and find that the payment of
the civil penalty which has been assessed for the violation in
question will not adversely affect the respondent's ability to
continue in business.
History of Prior Violations
Based on the stipulations by the parties, which reflects
that three violations were committed at the mine during the
period March 4, 1986 through March 4, 1988, I conclude and
find that the respondent has a good history of prior.compliance
at this mine and this is reflected in the civil penalty
assessed for the.violation in question.
Good Faith Compliance
The parties stipulated that the respondent demonstrated
good faith by abating the cited condition within the time fixed
by the inspector, and the record shows that abatement was
achieved within 10 minutes by shutting off the power switch and
locking it out. I conclude and find that the respondent demonstrated rapid compliance, and I have taken this into account in
the civil penalty assessment for the violation in question.
Negligence
The inspector made a negligence finding of "moderate,"
and he confirmed that the failure to deenergize and lock out
the hoist was inadvertent. I conclude and find that the violation resulted from the respondent's failure to take ordinary
care, and the inspector's "moderate" negligence finding is
affirmed.
Gravity
Notwithstanding my finding and conclusion that the violation was not significant and substantial, I find that the
failure to deenergize and lock out the power switches in question ~as secious, particularly with cespect to the main switch

873

which was located outside of, and approximately 15 to 20 feet
from the hoist operator's control room. While it may be true
that the movement of the hoist was unlikely, even if the switch
were "on," since it was not within the immediate cont:rol of the
hoist operator, anyone could have had access to this switch,
and it posed a potential, albeit not likely hazard.
Civil Penalty Assessment
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llOCi) of
the Act, I conclude and find that a civil penalty assessment
in the amount of $25 is reasonable and appropriate for the
violation in question.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment in the amount of $25 in satisfaction of the section
104(a) Citation No. 3260151, March 4, 1988, for a violation of
mandatory safety standard 30 C.F.R. § 57.12016, and payment is
to be made to MSHA within thirty <30 > days of the date of this
decision and order. Upon receipt of payment, this proceeding
is dismissed.
In view of the disposition of the civil. penalty case, IT
IS .FURTHER ORDERED that the respondent Is contest filed in
Docket No. LAKE 88-128-RM, IS DENIED AND DISMISSED.
,-·;

'/!

. /, I
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.-vvv-4'-o

,..- ~eetrge ft. Kou ra
'1\dministrative Law 'Judge
Distribution:

Victor Evans, General Manager, Ozark-Mahoning Company, P.O.
Box 57, Rosiclare, IL 62982 (Certified Mail)
Miguel J. Carmona, Esq •• Office of the Solicitor, U.S.
Department of Labor, 230 South Dearborn Street, 8th Floor,
Chicago, IL 60604 (Certified Mail)
/fb

874

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

MAY 9 1989
ROGER L. STILLION,
Complainant

v.
QUARTO MINING COMPANY,
Respondent

.
.
.
.
.
.

DISCRIMINATION PROCEEDING
Docket No. LAKE 88-91-D
MORG CD 88-3
Powhattan No • 4 Mine

SUPPLEMENTAL DECISION
Appearances:

Thomas M. Myers, Esq., United Mine Workers of
America, Shadyside, OH, for Complainant1
Michael Peelish, Esq., Consolidation Coal
Company, Pittsburgh, PA for the Respondent1.

Before:

Judge Fauver

A decision on liability was entered on April 6, 1989,
holding that Respondent violated § 103 Cf) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq.,
by refusing to pay Complainant for his time spent
accompanying a federal mine inspector on October 6, 7, and 8,
1987. The decision provided that the parties should meet in
an effort to stipulate the amount of back pay, interest and
litigation expenses due the Complainant.
The parties have filed a stipulation of back pay and a
reasonable attorney fee.
ORDER
Based upon the stipulation, it is ORDERED that, within
15 days of this Decision, Respondent shall pay Complainant a
total of $2,375.71, representing back pay and interest of
$258.21 and an attorney fee of $2,117.50.
This Supplemental Decision and the Decision dated
April 6, 1989, constitute the final decision of the judge in
this proceeding.

w~:r~~
William Fauver
Administrative Law Judge

875

Distribution:
Thomas M. Myers, Esq., General Counsel, UMWA, District 6,
56000 Dilles Bottom, Shadyside, OH 43947 CCertif ied Mail)
Michael R. Peelish, Esq., Quarto Mining Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
iz

876

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

MAY 101989
LOCAL UNION 1570, DISTRICT 31,:
UNITED MINE WORKERS
. :
OF AMERICA (UMWA),
:
Complainants
:
v.
EASTERN ASSOCIATED COAL
CORPORATION,
Respondent

COMPENSATION PROCEEDING
Docket No. WEVA 88-227-C
Federal No. 2 Mine

.
.
.

SUPPLEMENTAL DECISION AND ORDER
Appearances:

Joyce A. Hanula, Legal Assistant, United Mine
Workers of America, Washington, D.C., for the
Complainants1
Eugene P. Schmittgens, Jr., Esq., Eastern
Associated Coal Corporation, Pittsburgh,
Pennsylvania, for the Respondent.

Before:

Judge Koutras

On April 6, 1989, I issued a partial decision granting in
part, and denying in part, the compensation claims filed by the
complainants in this case. The parties were requested to file
a stipulation with respect to the amounts of compensation and
interest due the idled miners in question, and they have now
done so.
ORDER
The respondent IS ORDERED to pay the following miners the
noted compensation and interest due in this matter, and payment
is to be made within thirty (30) days of the date of this
supplemental decision. The April 6, 1989, decision is hereby
made final along with this supplemental decision.

877

14 Right crew wages Lost
Februar~

Employee
B. Tennant
B. Milush
M. Starkey
w. Hovatter
J. Starr
I. Ammons
J. Teets
B. Powell
D. Barker
R. Varner
J. Price

Employee No.
43036
43186
43503
43618
44408
44417
44581
45137
45313
45444
45449

9, 1988 CB Shift)
Wages Lost

Interest

Total Due

$64.46
$60.19
$62.84
$64.46
$62.84
$62.84
$62.84
$64.46
$64.46
$64.46
$62.84

$8.13
$7.59
$7.93
$8.13
$7.93
$7.93
$7.93
$8.13
$8.13
$8.13
$7.93

$72.59
$67.78
$70.77
$72.59
$70.77
$70.77
$70.77
$72.59
$72.59
$72.59
$70.77

February 10, 1988 CA Shift)
Employee

o. Efaw

v. Alvarez
J. Moore
R. Yoney

Employee No.
43077
43094
44390
44400
Februar~

Em2lolee

B. Milush
I• Ammons
R. Boyce
D. Barker

Em2lolee No.
43186
44417
45089
45313

wages Lost

Interest

Total Due

$126.52
$117.98
$123.28
$123.28

$15.96
$14.88
$15.55
$15.55

. $142.48
$132.86
. $138.83
$13a.03

10£ 1988 CB Shift)
Wag:es Lost

Interest

Total Due

$120.38
$125.68
$120.38
$128.92

$15.19
$15.86
$15.19
$16.26

$135.!)7
$141,;54
$135.57
$145.18

February 10, 1988 cc Shift)
Employee
J. Foley
R. Schrader
J. Kanosky
c. Hoover
R. Ribel
w. Smith
s. Hamilton
J. Melton
J. Hawkins

Employee No.
43043
43177
43207
43218
43536
43586
43808
44115
44151

Wages Lost· Interest

Total Due

$129.72
$129.72
$126.48
$126.48
$126.48
$129.72
$126.48
$121.18
$129.72

$146.09
$146.09
$142.44
$142.44
$142.44
$146.09
$142.44
$136.47
$146.09

878

$16.37
$16.37
$15.96
$15.96
$15.96
$16.37
$15.96
$15.29
$16.37

c. Stewart
E.
D.
J.
R.

Jackson
Barker
Wilson
Neff
s. Farrah
T. Turek
J. Mathews

44264
43035
45090
45135
45332
45518
45538
44437

$126.48
$121.18
$129.72
$121.18
$121.18
$121.18
$121.18
$129.72

$15.96
$15.29
$16.37
$15.29
$i5.29
$15.29
$15.29
$16.37

$142.44
$136.47
$146.09
$136.47
$136.47
$136.47
$136.47
$146.09

~·K1~
Administrative Law Judge

Distribution:
Joyce A. Hanula, Legal Assistant, United Mine Workers of
America CUMWA), 900 15th Street, N.W., Washington, DC 20005
(Certified Mail)
Eugene P. Schmittgens, Jr., Esq., Eastern Associated Coal
Corporation, 301 N. Memorial Drive, Post Off ice Box 373,
St. Louis, MO 63166.CCertified Mail>

/f b

879

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

MAY 111989

.
.
.
.
.
..
.
.
.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner
v.
KYANITE MINING CORPORA rION,
Respondent
0

CIVIL PENALTY PROCEEDINGS
Docket No. VA 89-11-M
A.C. No. 44-03743-05514
Docket No. VA 89-10-M
A.C. No. 44-03743-05513
East Ridge Plant

:

DECISION
Appearances:

Before:

Jacks. Strausman, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Petitioner1
B. R. Coleu~n, Vice President, Kyanite Mining
Corporation, Dillwyn, Virginia, for the Respondent

Judge Maurer

These cases are before me upon petitions for assessment of
civil penalty under Section lOSCd> of· the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. §,801, et seg., (the Act).
Pursuant to notice, a hearing was commenced in
Charlottesville, Virginia, on April 20, 1989. At that hearing,
prior to the taking of any testimony, the parties proposed a
settlement agreement. The petitioner proposed reducing the
specially assessed penalty from $7200 to $5000 as a more
reasonable penalty for the training violations cited. I note
that the 24 violations cited could be thought of as a single
training violation with 24 counts. MSHA cited the operator for
failing to provide new miner safety training and each of the
24 Orders named an individual employee, and proposed a civil
penalty of $300. In the aggregate, this amounted to a proposed
civil penalty of $7200. I concur with the Secretary that $5000
is a more reasonable penalty which still satisfies the public
interest. The respondent has agreed to pay that amount in full
settlement of the cases. I have considered the matter in that
light and under the criteria for civil penalties contained in
§ llOCi) of the Act and I conclude that the proffered settlement
is appropriate.

880

Pursuant to the Rules of Practice before this Commission,
this written decision confirms the .bench d.ecision I rendered at
the hearing, approving the settlement.
WHEREFORE IT IS ORDERED that respondent shall pay the
approved civil penalty of $5000 within 30 days of this decision
and upon such payment, this proceeding IS DISMISSED •

.·4 ./~'1

/~--

rl-1

-.

· t/!/I~

Ro~urer
•7.

Admin£s~rative Law Judge
v·

Distribution:
Jack E. Strausman, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Room 516, Arlington ,VA 22203
(Certified Mail)
B. R. Coleman, Vice President-Operations, Kyanite Mining
Corporation, P.O. Box 486, Dillwyn, VA 23936 (Certified Mail)
/ml

881

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

May 12, 1989

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

v.
CAMP FORK FUEL COMPANY,

.:
.
..:

CIVIL PENALTY PROCEEDING
Docket No. KENT 88-178
A. C. No. 15-08333-03525
No. 4 Mine

.

ORDER OF DISMISSAL
Before:

Judge Merlin

On March 15, 1989, a Decision Approving Penalty and Order .of
Dismissal was entered in this case. On March 24, 1989, the Secretary filed a Motion for Reconsideration of the-Order of Dismissal
on the ground that the penalty had not been paid. In-an Order
dated April 7, 1989, the Commission vacated the dismissal and.
remanded this case for further appropriate proceedings.
On April 10, 1989, an order was issued in accordance with
the Commission remand directing that within 21 days the parties
confer and advise whether a hearing would be necessary. On April
24, 1989, the Solicitor advised as follows:
The records of the Civil Penalty Processing Unit, Mine Safety and Health Administration, United States Department of Labor
CMSHA), establish that the Respondent mailed
check number 12087 dated October 9, 1988, to
the Department of Labor. This check was in
the amount of $927.00.
Attached to this check was a Proposed
Assessment form on which the Respondent had
indicated that $441.00 of this amount was to
be credited to this assessment number and
that this $441.00 was for payment of the five
uncontested violations in A. C. Number
15-08333-03525. The remaining $486.00 was
credited to other civil money penalty assessments for which the Respondent owed payment,
as was duly indicated by the Respondent in
the tra·nsmi ttal of the check to MSHA.
By letter of April 13, 1989, Linda
Cantrell, Camp Fork Fuel Company, transmitted

882

to the Federal Mine Safety and Health Review
Commission a check in the amount of $295.00
for the remaining assessed penalties. She
stated that the omission of this amount from
the first check was an innocent oversight.
Finally, the Solicitor stated that no hearing was required.
The Solicitor's representations are accepted.
ORDER
In light of the foregoing, this case is DISMISSED.

Chief Administrative Law Judge
Distribution:
Mary Sue Ray, Esq., Office of the Solicitor, U. s. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mai;I.>
Ms. Linda Cantrell, Bookkeeper, Camp Fork Fuel Company, Box c,
Elkhorn City, KY 41522 (Certified Mail)
/gl

883

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

MAY 151989
BLAINE K. DEEL,

DISCRIMINATION PROCEEDING
complainant

v.
PAROKI ENTERPRISES, INC.,
Respondent

.
.
.
.

Docket No. VA 89-12-D
NOR'r CD 88-12
No. 1 Truck Mine

ORDER OF DISMISSAL
Before:

Judge Maurer

The parties have jointly moved to dismiss the. captioned case
on the grounds that they have reached a mutually agreeable
settlement. Under the circumstances herein, permission to
withdraw the complaint is granted.
29 C.F.R. § 2700.11. The
case is therefore dismissed, with prejudice, as requested by the
partiesi and the hearing set for May 18,1989, in Big Stone Gap,
Virginia is cancelled.

'
.•
d!,A-.,.e.J/t. l 1·atii-w
·

,.J )
1
-1.,
Roy Ji Maurer
Administrative Law Judge

.

,'~

" I

v·

Distribution:
Blaine K. Deel, Route 2, Box 216, Vansant, VA
Mail)

24656

(Certified

Ms. Arlene Deel, Paroki Enterprises, Inc., Route 2, Box 71,
Haysi, VA 24256
(Certified Mail)
/ml

884

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

MAY 161989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
AMBER COAL COMPANY, INC•,
Respondent

PENALTY PROCEEDING
..:: CIVIL
Docket No. KENT 88-136

.: A.C. No. 15-11155-03532
Amber No. 7 Mine
.

DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

This proceedirig concerns a civil penalty assessment proposal 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), seeking a civil penalty assessment in
the amount of .$8,500 for an alleged violation of mandatory
safety standard 30 C.F.R. § 75.200, as noted in a section
104Ca) Citation No. 2780320, issued on November 12, 1987. The
respondent filed an answer and notice of contest, and a hearing
was scheduled in Pikeville, Kentucky, on June 1, 1989. However, the parties have now filed a joint motion pursuant to
Commission Rule 30, 29 C.F.R. § 2700.30, seeking approval of a
proposed settlement of the case. The respondent has agreed to
pay a civil penalty assessment in the amount of $6,000, for the
violation in question.
Discussion
In support of the proposed settlement disposition of this
case, the parties have submitted information pertaining to the
six statutory civil penalty criteria found in section llOCi> of
the Act. They have also submitted a full discussion and disclosure as to the facts and circumstances surrounding the
issuance of the citation in question, and a reasonable justif i~ation for the reduction of the original proposed civil penalty
assessment.

885

Conclusion
After careful review and consideration of the pleadings,
arguments, and submissions in support of the motion to approve
the proposed settlement of this case, I conclude and find that
the proposed settlement disposition is reasonable and in the
public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30,
the motion IS GRANTED, and the settlement IS APPROVED.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment in the amount of $6,000, in satisfaction of the violation
in question within thirty (30) days of the date of this
decision and order, and upon receipt of payment by the
petitioner, this proceeding is dismissed.

~.4.t~

Administrative Law Judge

Distribution:
Theresa Ball, Esq., Office of the Solicitor, u.s. Department of
Labor, 2002 Richard Jones Road, Suite B-201,·Nashville, TN
37215 (Certified Mail)

Mr. Roger Kirk, P.resident, Amber Coal Company, Inc., 29501 Mayo
Trail, Catlettsburg, KY 41129 (Certified Mail)
/f b

886

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

HAY 171989
STENSON BEGAY,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. CENT 88-126-D
DENV CD 88-09

LIGGETT INDUSTRIES, INC.,
Respondent
DECISION
Appearances:

Before:

Earl Mettler, Esq., Mettler & Lecuyer,
Albuquerque, New Mexico, for the Complainant1
Charles L. Fine, Esq., O'Connor, Cavanagh,
Anderson, Westover, Killingsworth & Beshears,
Phoenix, Arizona for the Respondent.

Judge Maurer
STATEMENT OF THE CASE

Complainant filed a complaint with the Commission under
§105Cc> of the Federal Mine Safety and Healt~ Act of 1977, 30
u.s.c. § 815(c) [hereinafter referred to as the Act] on June 26,
1988, alleging essentially that because he believed that his
health and safety were endangered by inadequate ventilation of
welding fumes and noxious gases from his working spaces he was
compelled to quit his employment • . This is a constructive
discharge case. Complainant seeks reinstatement, back pay,
attorney. fees and any other allowable compensation that the
Commission may order.
Pursuant to notice, this case was heard in Gallup, New
Mexico on January 26 and 27, 1989. Both parties have filed
post-hearing proposed findings of fact and conclusions of law
which I have considered along with the entire record in making
this decision.
STIPULATIONS
Pursuant to my prehearing order, the parties stipulated to
the following:
1. This case arises under § 105(c) of the Federal Mine
Safety and Health Act of 1977.
2. Respondent, Liggett Industries, Inc., was a contractor
performing work at the McKinley Mine, a coal mine, owned and

887

operated by Pittsburg & M.idway Coal Company, Inc. (P & M Coal),
which is located in no·cthwest New Mexico.

3. Respondent's contract consisted (in major part) of the
erecting and installing of two 1370W dragline bases. There were
two contracts, one involving the bases on the north site, which
lasted from May to October 19871 and the other contract involved
the bases on the south site which commenced in October and
con~luded on January 29, 1988 for welders.
4. ·Complainant's hourly rate was $15.26 per hour and his
fringe rate was $1.19, which totals $16.45 per hour. Complainant
worked 40 hours per week. If he had not quit on December 10 and
had ~orked each work day through January 29, 1988 (the date the
last welder was laid off on the project), he would have worked
280 hours.
Multiplied by $16.45, he would have earned gross
wages in the amount of $4,606 .. 00.
FINDINGS

O~,

FACT

1. Complainant is a certified welder and has worked in the
construction industry as such for approximately 13 years.
2. Respondent, at all times pertinent hereto, was a
contractor engaged in equipment erection and maintenance for the
mining industry.
3. During 1987, and early 1988,· respondent was performing
work, constructing two dragline,bases or tubs, at the McKinley
Mina, operated by the Pittsburg and Midway Coal Company (P & M)
near Gallup, New Mexico.
4. Complainant started working for respondent as a welder
on May 26, 1987 on the first of the two dragline bases that
respondent assembled at the McKinley Mine. The second project,
called the south site project, started sometime in October 1987
and the welders started actually welding inside the base during
mid-November 1987. On December 10, 1987, after a meeting and
confrontation with management, complainant walked off the job and
for all intents and purposes quit his employment with respondent.
It is this "quitting" that the complainant now alleges was a
constructive discharge.
5. Each dragline base, or tub, was round and approximately
60 feet in diameter.
It initially was assembled in pie-shaped
sections, made-up of compartments. Each comparLnent is
appcoximately four cubic feet in volume.
6. 'rhe compartments were fitted togethec and subsequantly
'Welded together and to the base itself.

888

7. There were fourteen manholes on the top of the tub,
leading from the top of the base into the tub, from which smoke
from inside the tub could escape.
8. There were also seams between the pie-shaped sections
from which smoke could escape, at least until such time as those
:3eams were welded up. This was one of the last procedures
performed.

9. As of December 10, 1987, there were a maximum of eleven
welders working on the base· and in tbe tub at any one time.
Typically, eight to ten welders were welding inside the base at
the same time.

10 •. There were passages throughout the tub that the welders
could move through f roin one compartment to the next by crawling
through holes in the compartment walls.
11. The south site project was located on top of a hill in
an area that was usually very windy.
However, wind was not
relied upon by the respondent to ventilate the base.

12. A canvas tent was positioned over the base. At times
·the sides of the tent were completely down around the
circumference of the base and at other times the tent sides were
rolled up or at least partially rolled up.
13. Welding on the south site project began in approximately
mid-November of 1987.
14. At various times there were differing amounts and types
o.f ventilation equipment available to clear the smoke and fumes
from the working spaces inside the tub. There were at all times
pertinent hereto, ten MSA air movers, sometimes referred to as
"air horns" available. However, these were not actually used on
the south site project ostensibly because they were
compressor-powered and the compressor available did not have
adequate capacity to operate them. There were also two Supervac
fans available.and in use, as well as two or three household
fans, by early December of 1987. Most significantly, there were
.Eive Dayton blowers available and in use fro1n mid-November until
December 9, 1987, when a sixth Dayton blower was acqui.ced and put
into service.
15. The two Supe:cvac fans were sometimes used by positioning
one at one end of the base, on top, so that it would bring air
into the canopy under the tent and the other at the .opposite end
of the base, also on too to exhaust air out from under the tent.
'l'he Supervacs were capable of rnovin9 9 ,200 cubic feet of air per
minute. However, in this configuration they were not useful for
exhausting smoke f r.orn inside the compartments where the welders
were ;,ictu3.lly working, creating smoke and fumes. They were
useful for maintaining airflow and removing some smoke from the

889

base area under the tent. The Supervacs were also tried with
Eittings and hoses running down into the compartments in an
attempt to pull air out of the compartments (and smoke along with
it), but these attempts met with mixed results, at best •.
16. The household fans on the top of the base did not
contribute in any significant way to ventilation inside the tub.
17. The niost significant ventilation of the compartments
inside the base was accomplished by the Dayton blowers. They
exhausted fumes and smoke from the compartments by suction. The
Dayton blowers physically sat on top of the base. Flexible hose
was used to bring the fume::; and smoke from the compartments to
the Dayton blowers, where it was then exhausted into the canopy
under the tent on top of the base, and dispersed to some extent
there by the SuperVacs and the wind, depending on the
configuration of the tent sides.

18. Fresh air from outside the atmosphere that existed
underneath the tent was never brought into the base where the
welding was going on. Although the evidence is conflicting about
the atmosphere inside the tent above the base, I find that it was
generally smokey a majority of the time. 1rherefore, when one of
the Supervacs was put over a manhole to force air into the base,
the air that went in was no better than that which was inside the
tent.
19. Various kinds of welding was done inside the tub,
including innershield or wire welding, stick welding and arc
gouging. This welding created extremely smokey conditions inside
the tub ~here the welders were working inside the compartments as
well as noxious fumes.
20. Both the Occupational Sa.fety and Health Administration
(OSHA) and the American Welding Society have published standards
for ventilation for welding in closed spaces. Ms. Cheryl Lucas,
testifying as a certified industcial hygienist for the
complainant established that when the Dayton blowers were used
with a T-coupling by two welders, as they most often were, the
Elow volume for each welder is reduced by half and does not meet
the OSHA standard, even ,if all the other conditions specified in
the standacd ace met, which they were not. She also opined that
the ventilation set-up did not meet the American Welding Society
standard.
I am satisfied that the ventilation inside the tub met
neither standard despite the fail11re of Ms. ~ucas to consider the
effect of some of the smoke escaping via other routes such as
rising up though the manholes or seams in the compa:ctments, the
other fans in use oc the wind. In my opinion, which is also
hers, the only significantly effective mode of ventilation inside
the tub was the Dayton blowers and that is what her testimony
focused on.

890

I hasten to add here as an aside at this point, however,
that whether the ventilation at respondent's project met either
of these standards or not is not directly at issue in this case
and therefore I am not going to go into great detail in analyzing
it.
The basic issue in this case remains whether the
complainant's work refusal was based upon his reasonable and good
Eaith belief that his working conditions were unsafe and/or
unhealthful due to inadequate ventilation.
There was no
testimony that complainant knew of or was relying on any
technical standards as a basis for forming his beliefs.
Neicher
did the respondent compare their ventilation system with any
published standards for airflow. The respondent also did not
introduce any evidence to the effect that the ventilation in the
tub did meet OSHA standards, or any published standards, for that
matter. Respondent does insist that the ventilation was adequate
based on experience in the industry.
I find, however, that it
was not.
21.
The first complaint the complainant ever made to any
supervisor or manager of respondent was made during a regular
safety meeting on November 23, 1987. At that time they (the
welders) were just about finished with the vertical welding and
were going to be starting on the overhead and flat ~elding.
Complainant told General Manager David Jones that the fume
exhaustecs (the Dayton blowers) were not adequate for the
overhead welding, and that more ventilation equipment was needed.
He related that on these type of welds the distance between the
welding and the end of the air hose could be as much as two feet.
The point being that at this distance the blowers would not
adequately capture the smoke and fumes from the innershield
welding.
22.
Mr. Jones told complainant he would pass on the
complaint to Mike Eslinger, the welding foreman.
He also ordered
another blower and more fire-proof hose which were ultimately
ceceived and put directly into ser-vice before complainant left
the job.
23. The next incident occurred on November 30, 1987. On
that day, Dave Johnson, another welder, made a statement to Mike
.E:slinger that "it was redl smokey" and if the ventilation did not
improve he would quit.
E3linger told Johnson to "go ahead, he
didn't care".
Complainant overheard this exchange and responded
to Eslinger' s comment by stating that he (,Johnson) wasn't going
to be the only one leaving.
At this juncture, Eslin3er said he
would take c~re oE it (the ventilation problem).
24.
Complainant testified there was one other occa31on prior
to Novemoer 30, 1987 that he had informed Ealinger that he felt
it ;.va::; very smokey inside the tub esp(=cially when two oc three
welders were working in close proximity to each other.
Eslinger
stated he would tell Jones • .

891

25.
Complainant allegedly experienced coughing, productive
of mucus and blood and other respiratory symptoms while working
on the project, and was seen by a doctor on December 7, 1987, ior
respiratory complaints. However, I find that there is no
evidence to show that his respiratory difficulties, to whatever
extent they existed, were caused by wor~ing for respondent.
Complainant did not return to the doctor between December 7, 1987
and February 15, 1988. At that time, his symptoms had increased
in severity ev~n though he had not worked for respondent or
anyone else since December 10, 1987. The doctor diagnosed
pneumonitis probably secondary to industrial gases. There is no
evidentiary basis in the record, however, for finding that
"probability" to be grounded in fact.
I am not holding that
complainant's respiratory difficulties were not caused by the
smoke and .fumes he encountered on the job.
I am stating that
there is insufficient evidence to prove-up that p(oposition.
However, I will take administrative notice that working in a
smokey environment is not a positive factor for someone who has a
cespiratory ailment, whatever its etiology.
26.
Other welders who worked on the project and testified
at the hearing also experienced dizziness and coughing up oi
mucus and blood which they attributed to welding on the
respondent's project. They also believed that the ventilation in
the tub was inadequate.
27. On December 9, 19 87, G,eneral Manager Jones advised
Eslinger that he wanted to have a meeting of all personnel the
following mo.cnin9, December 10, 1987, because he had recently
noticed that the employees were abusing their lunch break and
were leaving work early.
28. At the meeting on the morning of December 10,.1987,
ventilation was also discussed. Stenson Begay testified that the
following exchange took place (TR. I, pp. 65-67):

Q.
Now, was ventilation discussed at a meetirig on
December 10th?
A.

Yes.

Q. Can you tell me who spoke first at that
meeting?
A.

Dave ,Jones.

Q.

And what did he say?

A.
He said the problem was brought to his
attention by Mike Eslinger on the ventilation.

Q.

And what

~lse

did ne say?

892

A. And he said that this should have been brought
to his attention ahead of time, and I interrupted
him.
Q.

And what did you say?

A. I told him that, "Excuse me, Dave, but this
was brought to your attention on November 30th by
myself."

*

*

*

*

*

*

*

Q.· You're referring to - November 30 or
Nov·ember 23rd?
A.

November 23rd.

And did you say anything more in addition to
reminding him that you had brought it up before?

Q.

A. ies. I told him that you were making it sound
like we' re to blame; that he's say·ing that we
didn't bring it to his attention, but we did, I
did.
Q.

And did Mr. Jones continue to discuss?

Yeah.· He said as far as he's concerned, he's
not breaking any state or federal laws and that
his decision was not to purchase additional
ventilation equipment and if any of the welders
still Eelt that it was still too smokey, that
he would have to discharge welders.
A.

*

*

*

*

*

*

When Mr. Jones indicated that he would not
buy more ventilation equipment, what kind of
equipment did you take that to refer to?

Q.

A. The Daytona [sic] blowers which we needed in
our work area.

Did he of fer to supply other kinds of
equip1nent?

Q.

A.
He said that he had ocdered some six-inch
tubin3 or exhaust duct.
Q.

Hose from ~elder to the --

893

A. Yeah, the hose. He said he ordered the
fireproof ones this time.
Q. And considering what he said about not buying
any more machinery or blowers, did you take that
to be a definite decision?

A.

Yes, the way he said it.

29. Mr. Jones testified that during the discussion of the
ventilation problem at the December 10 meeting, he had stated
that in his opinion the ventilation in the tub was adequate and
there was only approximately two weeks of welding left inside the
tub in any event. He told the welders that he would purchase
additional hose if requested, but he would not purchase
additional blowers because the cost was not justified by the
amount of welding left to do in the tub. Furthermore, Mr. Jones
also told the welders at this meeting that if the ventilation waa
still a problem he would lay off employees by seniority under the
theory that the fewer welders that there were welding inside the
tub, the less smoke there would be. At the end of th.is
presentation he asked if there were questions. There were none.
10. To the point that I have recited it here, s·upra, I
credit the overall subatance of both Jones' and Begay's
recollection of the important December 10 meeting. It is
obviously slanted in each case to their particular point of view,
but I find the testimony of both men to be generally credible.
31. ~he meeting at this point moved on to another subject-the long lunches and leaving early. An employee named Leonard
Mike became insubordinate during this later portion of the
•n,~eting and quit.
He most likely would have been fired for
insubordination in any event had he not quit. Respondent has
attempted to connect up complainant to Leonard Mike, but I find
nothing in common to the i:.\'lo situations except the fact that they
both left the job at the sama time. There is no indication in
the record that complainant was concerned with overstaying his
lunch time or leaving early. There is also no evidence that his
leaving the job had anything to do with Leonard Mike's outburst
and subsequent departure.-

32. Complainant was the most vocal of the welders
concerning ventilation matters, and 1nanageinent. knew he was
greatly concerned with the ventilation inside the tub at the
south side project.
33.. Prior to the December 10 ineeting, .:omplainant was
planning to go to work that day. He had already checked out
tools and .equip·.nent fro•n the toolroom in preparation for work.
However, at this meeting, management for the first time took the
unshakable position that there would be no further ventilation
e9uipment provided. This was ~ommunicated to the welders,

894

includin•3' complainant, at that meeting. I the.ref ore find and
believe that complainant returned his tools to the toolroom
because in his mind he believed the situation to be hopeless at
that point. He now knew that no more Dayton blowers would be
provided and that if there were further complaints, welders would
go. Apparently not necessarily himself, but welders with less
seniority on the job.

34. After the meeting, when it became apparent that
complainant and two others were leaving the job, Mr. Jones asked
them all to first come to his o·Efice before they left the
premises, which they did.

35. In the office, none of the welders, including
complainant, made it expressly clear to Jones why they were
leaving. However, in the case of the complainant, which is the
only case we are concerned with here, I find that he left the job
because of the ventilation situation inside the base and more
significantly, I find that management in the persons of Jones and
Eslinger understood that to be the case at the time.
36. Apropos the finding in No. 35, supra, at this
post-meeting meeting in the office, Mr. ~alinger became agitated
with co1nplaina.nt specifically about the ventilation complaints.
He jumped off the table he was sitting on and came eight up into
the face of the complainant, and using profanity said that they
were the worst bunch of "crybabies" that he had ever run across.
He was bent on continuing this tirade when jones grabbed him by
the arm and took him outside. Mr. Jones testified that he took
him outside and told him that "we handle everything in a
business-like manner and we speak to the people as they are
people".
37.
It is my impression that at this point the die was cast.
A business decision had been made. There would be no additional
monies spent on ventilation equipment, no matter what.
If a
couple of welders thought it was too smokey inside the base and
they quit, so be it. The job wa3 almost complete and if
replacement welders were needed,_ they could be found.
In fact,
the next week, respondent did hire two additional welders.
38.
Immediately after leaving the job site, complainant,
accompanied by Dave Johnson, went to the P & M Mining Company
safety office to inform personnel ot P & M's safety department
that they had quit their jobs because of ventilation problems
inside the base.
39. Subsequent inspections by P & M Coal Company and MSHA
failed to establish any violations of safety or health
regulations on the project.

895

Discussion, Further Findings, and Conclusions
The general principles governing analysis of discrimination
cases under the Mine Act are settled. In order to establish a
prima facie case of discrimination under section 105(c) of the
~ct, a complaining miner bears the burden of production and p.coof
in establishing that Cl) he engaged in protected activity and (2)
the adve-rse action complained of was motivated in any part by
that protected activity. Secretary on behalf of Fasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980),
rev'd on other grounds sub norn. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3rd cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 817-18 (April 1981).
The operator may rebut the prima facie case by showing either
that no protected ac~ivity occurred or that the adverse action
was in no part motivated by protected activity. If an operator
cannot rebut tha prima facie case in this manner, it nevertheless
may defend affirmatively by ptoving that it also was motivated by
the miner's unprotected activity and would have taken the adverse
~ction in any event for the unprotected activity alone.
Fasula,
supra; Robinette, supra. See also Eastern Assoc. Coal Corp. v.
FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
Construction Co., 732 F.2d 954, 958-59 (D~C. Cir. 1984);
Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1981)
Cspeci Eically approvin·; the Commission's Fasula-Robinette test).
Cf. NLRB v. Transportation Management Corp., 462 U.S. 393,
397-413 (1983) (approving nearl~ identical test under National
Labo-r Relations Act).
·
As stated previously, this 1 is a cons tructi.ve discharge
case, wherein the complainant -refused to weld any further inside
the base with the existing ventilation, allegedly because he
believed it was unhealthy for him to do so.
If I find that this
work refusal equated to engaging in protected activity under the
Act, then a finding of conatructive discharge would be tantamount
to a finding of adverse action motivated by that protected
activity, and hence unlawful discrimination within the meaning of
~ection 105(c) of the Mine Act.
The appropriate standard to apply in the context of the Mine
Act is that a constructive discharge occurs whenever a min~r
engaged in protected activity can show that an operator created
or maintained conditions so intolerable that a reasonable miner
would have felt compelled to resign. Whether conditions are so
intolerable that a reasonable person would feel compelled to
rasign is a question fo-r the trier of fact.
Simpson v. FMSHRC
842 F.2d 453, 461-463 CD.C. Cir. 1988).
It is also well settled that a miner has the right under
section lOSCc> of the Act to refuse to work if he has a good
faith, reasonable belief that the work involves a hazardous
condition.
Pasula, supra, 2 ~MSHRC at 2789-96; Robinette, supra,
3 FMSHRC at 807-12; Secretary v. Metric Constructors, Inc.,

896

Additionally, where reasonably possible, a miner refusing work
ordinarily must communicate or attempt to communicate to some
representative of the operator his belief that a hazardous
condition exists. Secretary on behalf of Dunmire & Estle v.
Northern Coal Co., 4 FMSHRC 126, 133-135 (February 1982); Dillard
Smith v. Reco, Inc., 9 FMSHRC 992 (June 1987); Miller v.
Consolidation Coal Company, 687 F.2d 194, 195-97 (7th Cir. 1982)
(approving Dunmire & Estle communication requirement).
In analyzing whether a miner's belief is reasonable, the
hazardous condition must be.viewed from the miner's perspective
at the time of the work refusal, and the miner need not
objectively prove that an actual hazard existed. Secretary
ex rel. Bush v. Union Carbide Corp., 5 FMSHRC 993, 997-98 {June
1983); Secretary ex rel. Pratt v~ River Hurricane Coal Co.,
5 FMSHRC 1529, 1533-34 (September 1983): Haro v. Magna Copper
Co., 4 FMSHRC 1935, 1944 {November 1982); Robinette, supra,
3 FMSHRC at 810. The Commission has also explained that "[g]ood
faith belief simply means honest belief that a hazard exists."
Robinette, supra at 810.
The initial question for decision then at this point is did
Stenson Begay reasonably and in good Eaith believe that he would
be required to work in hazardous and unhealthful conditions if he
remained on the job on the morning of December 10, 1987.
Stenson Begay had thirteen years experience as a welder in
the construction industry; he was well thought of as a welder by
respondent's management and his complaints about the ventilation
inside the base were taken seriously by General Manager Jones.
Mr. Jones testified that Begay was the most vocal of the welders
concerning the ventilation and was considered by him to be
credible. Complainant's belief that the conditions inside the
base were excessively smokey and therefore unhealthful and
hazardous was shared by all the welders who testified at the
hearing and was buttressed by the expert opinion of the
industrial hygienist. For a period of some two weeks plus, Begay
had been expressing his continuing concern about the smokey
conditions inside the tub to management and some improvements
were made, but they were insufficient. After the meeting on the
ffiorning of December 10, 1987, Begay had sufficient cause to
believe that management intended to do nothing further to
alleviate or improve the \Tentilation in::iide the dragline base.
Respondent's position that their offer to discharge some of the
welders to improve the ventilation inside the tub .ls not well
taken.
It lacks c~edibility given the fact that they replaced
the complaining weld~rs who quit 11ith two mo:ce welders the
Eollowing week. It was in this setting that Begay turned in his
tools and equipment and left the job sita, leaving behind a job
that paid $16.45 an hour for unemplo~ment.

897

I therefore find and conclude that complainant Begay
ref used to weld inside the base any longer because he reasonably
and in good faith believed the inadequate ventilation inside the
tub to be hazacdous to his health because of the extremely smokey
and noxious conditions extant there. He had every reason to
believe that if he stayed on the job, he would be required to
work in unhealthy conditions.
Next, respondent alleges that complainant failed to
expressly communicate his reason for quitting and that such
failure cannot be excused on account of futility.
While it is true that complainant did not expressly and
unequivocably state his reason for quitting at the time he left
the job site to a management representative of respondent, he did
so state to a respresentative of the P & M Coal Company, for whom
the construction work was being done. Furthermore, reading the
record as a whole, I find that over the previous 2-3 weeks prior
to December 10, 1987, Begay did make a good faith attempt to
communicate his concerns to management, specifically to Jones and
Eslinger. Approaching the communication requirement from a
common sense standpoint, I believe that Begay did all that could
be reasonably expected of him. Telling Mr. Jones one .last time
that the atmosphere inside the tub was unhealthy would not in my
opinion have resulted in the procurement of the badly needed
ventilation equipment or made complainant's job any safer.
I conclude that complainant was constructively discharged as
a result of a protected work refusal. Accordingly, he was
unlawfully discriminated against in violation of Section 105(c)
of the Mine Act. The complaint of discrimination is therefore
SUSTAINED.
REMEDIES
Turning now to complainant's remedies, I find that the
stipulated amount of back pay, $4606, is appropriate to
recompense the complainant for back pay from December 10, 1987,
until welding was discontinued on this project on January 29,
1988. The payment of interest will also be ordered on this award
until the date of payment.
Complainant also seeks reinstatement. However, due to the
nature of the respondent's industry, which for welders involves
only temporary stints of employment, generally only for the
duration of a specific project, an etfective reinstate1nent remedy
is difficult to fashion.
I note from the evidence adduced at the hearing that several
of the welders from the McKinley Mine dragline base projects have
from time to time subsequently been rehi:c(~d by respondent to work
as welders on other projects. Therefore, respondent will be
ordered to consider complainant's application, should he make

898

application, in good faith for any openings for welders on its
projects without regard to his having made ventil~tion complaints
in the past or the instant discrimination complaint. This shall
i~clude all work for which the complaina~t is qualified,
considering his training and experience.
Finally, respondent will be ordered to reimburse complainant
for his reasonable attorney fees and costs of litigation.
Complainant's counsel submitted an itemized affidavit on
March 27, 1989, accounting for 87.8 hours of attorney time
expended tor lllhich he requests $125 per hour. This amounts to
$10,975.
He has also documented $3,012.92 in costs. No
objection has been received from respondent.

My own review of the attorney fee petition and statement of
costs satisfies me that they are reasonable considering the
nature of the issues involved, the degree of s~ill with which
complainant was represented and the amount of time and work
involved.
It shall be so ordered.
ORDER
Based on the stipulations and the foregoing findings of fact
and conclusions of law, respondent IS ORDERED:

1. To pay Stenson Begay back pay through January 29, 1988
in the amount of $4606, within 30 days of the date of this order.
2. To pay Stenson Begay inte~est on that amount from
the date he would have been entitled to those monies until the
date of payment, at the short-term federal rate used by the
Internal Revenue Service for the underpayment and overpayment of
taices, plus 3 percentage points, as announced by the Commission
in Loe. U~ 2274, UMWA v. Clinchfield Coal Co., 10 PMSHRC 1493
(November 28, 1988), pet. for review filed, No. 88-1873 CD.C.
Cir. Dec. 16, 1988).

3. To consider Stenson Begay's application for employment
in the future, should he make such application, in good faith and
without regacd to his having made previous safety and health
related complaints, or this discrimination complaint. This order
:~ncompasses all employment for which Stenson Begay is qualified,
considering his training and experience.

4. To pay St2nson Begay $10,975 as reimburse;nent for.
attorney fees.
5.
costs.

To pay Stenson Begay $3012.92 as reimbursement for

/J

I

J 4/l;l
.v/ ,l(/(J
~·
Law Judge

899

Distribution:
Earl Mettler, Esq., Mettler & Lecuyer, P.C., 1st Floor, Copper
Square, 500 Copper, NW, Albuquerque, NM 87102
(Certified Mail)
Charles L. Fine, Esq., 1 East Camelback Road, Suite 1100,
Phoenix, AZ 85012-1656
(Certified Mail)

/ml

9QO

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

May 17, 1989

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 88-290
A. C. No. 42-01697-03589

v.

Bear Canyon No. 1 Mine

C. W. MINING COMPANY,
ORDER OF PARTIAL SETTLEMENT
ORDER OF PARTIAL DEFAULT
ORDER TO PAY
Before:

Judge Merlin

The Solicitor has filed a partial motion to approve
settlement for two of the three violations involved in this case.
Citation No. 3075965 was issued for a violation of 30 C.F.R.
§ 75.1725(a) because a belt control switch was not being main-

tained to act as a positive stop control for the belt. The
penalty was originally assessed at $192 and the proposed settlement is for $134. Citation No. 3224163 was issued for a violation of 30 C.F.R. § 75.220 because the approved roof control
plan was not being complied with. The penalty was originally
assessed at $294 and the proposed settlement is for $206.
I have
reviewed these violations in light of the six statutory criteria
set forth in section llO(i) of the Act, 30 U.S.C. § 820(i), and
find that the proposed settlements may be approved as being in
accordance with the provisions of the Act.
The remaining violation, Order No. 3227164, was issued for a
violation of 30 C.F.R. § 75.303Ca) because an adequate preshift
examination was not made of an area in the lower seam section in
that observable hazards which existed were not listed in the
approved book. The penalty is assessed at $700. On January 9,
1989, the operator was ordered to file an Answer for this violation or show cause for not doing so. The file contains the
return receipt showing that the operator received a copy of the
show cause order on January 14, 1989. However, the operator
failed to comply with it. As a result, judgment by default must
be entered in favor of the Secretary.
It is therefore, ORDFRED that the partial settlement motion
for Citation Nos. 3075965 and 3224163 be APPROVED and the
operator is ORDERED TO PAY $340.

901

It is further ORDERED that judgment by default shall be
entered in favor of the Secretary for Order No. 3227164 and a,s a
result the operator is ORDERED TO PAY $700.
Finally, it is ORDERED that the operator pay $1,040 within
30 days from the date of this decision.

Law Judge
Distribution:
Margaret Miller, Esq., Office of the Solicitor, u. s. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, co 80294 (Certified Mail)
Mr. Bill Stoddard, President, c. W. Mining Company, P.
300, Huntington, UT 84528 (Certified Mail)
/gl

902

o. Box

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

MAY 181989
JAMES H. COLQUITT,
Complainant

v.
IDEAL BASIC INqUSTRY/CEMENT
COMPANY,
Respondent

.
..
.

.

DISCRIMINATION PROCEEDING
Docket No. CENT 89-3-DM
MD 88-32

Ada Quarry

DECISION
Before:

Judge Lasher

The parties, both represented by counsel, have executed a
Stipulation of Voluntary Dismissal in this matter. Such stipulation, personally confirmed by Complainant's counsel with me,
indicates that a settlement has been reached in this matter and
that pur$uant thereto this matter should be dismissed with
prejudice.
Accordingly, this proceeding is dismissed with prejudice,
each party to bear his own costs.

~//.~fi-

Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Leslie v. Williams, Jr., Goff & Williams, 1212 Northwest 50th
Street, Oklahoma City, OK 73118 (Certified Mail)
John B. Gamble, Jr., Esq., Fisher & Phillips, 1500 Resurgens
Plaza, 945 East Paces Ferry Road, Atlanta, GA 30326 (Certified
Mail)
/bls

903

;;:~·

4-:~/

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

MAY 221989

.
.

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

.

EDWARD KRAEMER & SONS,
INCORPORATED,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. LAKE 88-129-M
A. C. No. 33-00091-05504
White Rock Quarry

DECISION
Appearances:

Maureen M. Cafferkey, Esq., Office of the Solicitor,
U. S. Department of Labor, Cleveland, Ohio, for the
Secretary~

Willis P. Jones, Jr., Esq., Jones and Bahret,
Toledo, Ohio, for the Respondent.
Before:

Judge Weisberger

Statement of the Case
I

This case is before me based on a Proposal for Penalty filed
by the Secretary (Petitioner) on August 18, 1988, for an alleged
violation of 30 C.F.R. § 56.14001. The Operator (Respondent)
filed its Answer on September 16, 1988.
On January 11, 1989, Petitioner filed Interrogatories and
Request for Production of Documents. On January 19, 1989,
Respondent filed a Motion for Protection Order arguing, in
essence, that discovery shall not be allowed inasmuch as it was
initiated beyond 20 days after the filing of the Proposal for
Penalty filed on August 18, 1988 (See, 29 C.F.R. § 2700.55).
Respondent's Motion was denied by Order dated January 30, 1989.
Pursuant to notice, this case was heard in Toledo, Ohio, on
February 23, 1989. Robert G. Casey and Arthur J. Hoffman testified for Petitioner. Edward s. Kraemer and M. Honora Kraemer
testified for Respondent.
Petitioner filed a Post-Trial Brief on April 27, 1989. On
May 15, 1989, Respondent filed a Post-Trial Brief and Prooosed
Findings of Fact and Conclusions of Law. On May 19, 1989:
Respondent filed a Reply to Petitioner's Post-Trial Brief.

904

Stipulations
The Parties agreed on the following stipulations:
1. The Federal Mine Safety and Health Review Commission has
jurisdiction over this proceeding.
2. Edward Kraemer & Sons owns White. Rock Quarry in Clay
Center, Ohio.
·
3 • . Edward Kraemer & Sons, Incorporation is an operator as
defined by Secti~n 3(d) of the Act.
4. White Rock Quarry is a mine as defined by Section 3(h)
of the Act.
5. Edward Kraemer & Sons are subject to the jurisdiction of
this Court and the 1977 Mine Act.
6. The size of proposed penalty, if assessed, will not
affect the Operator's ability to continue in business.
Citation
Citation No. 3060361, issued on March 29, 1988, alleges as
follows:
In the quarry, at the running crusher, the front
face of ~he approximately three and one half foot
diameter fast spinning flywheel is unguarded. Although
this flywheel is approximately eight feet off the
ground, the steel access ladder to the crusher operator's control deck passes within eight inches of said
flywheel. A person mounting or dismounting the crusher
could contact this flywheel and be injured.
Regulation
30 C.F.R. § 56.14001 provides as follows: " • • • flywheels i
• • • and similar exposed moving machine parts which may be contacted by persons, and which many cause injury to persons, shall
be guarded."
Findings of Fact and Discussion

I.
The crusher in question has been used at Respondent's White
Rock Quarry since January 1, 1988. The flywheel of the crusner,
as depicted in Petitioner Exhibit 1, has a diameter of approximately 3 feet. Tha flywheel does not have any belts or chains.
The exposed face of the flywheel is essentially smooth, but
contains four nuts in its ~enter. The flywheel operates at

905

approximately 1800 to 2100 revolutions per minute, and is located
approximately 8 feet off the ground. Those persons who operate
the crusher must climb a vertical steel ladder from the ground to
enter.the platform where the crusher is operated from. In
entering the work platform from the ladder, two handrails must be
grasped to hoist one's self onto the platform. These handrails
are located at the top of the ladder and 8 1/4 inches laterally
from the flywheel,l/ and approximately 10 inches in front of the
flywheel. The flywheel has two separate guards along the upper
portion of the outside circumference of the flywheel, covering
approximately 180 degrees of the circumference. (Petitioner's
Exhibit 1 and 2, and Respondent's Exhibit 3.)
Robert G. Casey; an MSHA Special Investigator Specialist,
who was a supervisor of inspectors on March 29, 1988, accompanied
an in•pector on an inspection of the White Rock Quarry on that
date. Casey indicated that he observed the crusher in operation,
and the flywheel was "spinning very fast" (Tr. 34). He said that
he observed an employee climbing the ladder to the work place,
and noticed how close the latter's hand was to the flywheel when
he grabbed the handrails. Casey concluded that the guards in
place were inadequate to prevent the hazard, which he a·escribed
as being immediately obvious, of a worker missing a guard rail,
hitting the flywheel, and injuring his hand, or on a windy day
having his clothing caught in the flywheel or its hub causing the
worker to be entangled in the machinery.
Arthur J. Hoffman, who has been operating a crusher for
Respondent since June 1986, indicated that in the winter he wears
a jacket under coveralls. He said that in the spring when he
wears a jacket he has never climbed to the top of the crusher
with the jacket unzipped. He said that in the summer he wears
short sleeve shirts. He indicated that it would be possible to
miss a rail in climbing the steps of the ladder, but not by
6 inches, and that he has never come in contact with the flywheel
while going up or down to the work site. He also indicated that
although it would be possible to slip off the ladder, his hand
would not come in contact with the flywheel since in climbing the
ladder, his body presses backward, and thus in slipping he would
not fall forward. He also indicated that if his jacket would be
open while reaching for th·e handrail, and he would fall, the
jacket would not get caught in the flywheel, as the revolutions
of the flywheel create a wind which blows the jacket behind him .
.~/ I have accepted the testimony of M. Honora Kraemer,
Respondent's Safety and Loss Prevention Officer, with regard to
the lateral distahce of the flywheel from the handrail as she
actually measured that distance. In contrast, there is no
evidence that the testimony of Robert G. Casey, MSHA Inspector,
Arthur J. Hoffman, the crusher operator, or Edward S. Kraemer,
with regard to the distance between the flywheel and the handrail
was based upon any measurement.

906

s.

Edward
Kraemer, who has a Bachelor of Science Degree in
Civil Engineering, and has been "associated" with crushers for
over 20 years (Tr. 171), indicated that because the flywheel
spins in a clock-wise direction, any exposed pinch point would be
too far away to be contacted by one falling from the ladder. He
also indicated that the center of gravity of one climbing the
vertical ladder would be on the outside. He explained that
accordingly, if one would fall or slip from the ladder, one would
fall backward. Thus, any contact with the flywheel would consequently cause one to fall backwards and not be drawn into the
flywheel.
The two guards on the flywheel on the date in question, as
depicted in Petitioner's Exhibits 1 and 2 and Respondent's
Exhibit 3, would appear to guard against the hazard of a hand
getting caught between the edge of the flywheel and the body of
the crusher. A visual inspection of these photographs fails to
indicate that these guards would prevent one from coming in
contact with the surface of the face of the rotating flywheel.
The testimony of Hoffman and Kraemer tends to establish that
inadvertently coming in contact with the flywheel would not be
likely. However, their testimony is not so persuasive as to
establish that coming in contact with the flywheel is impossible.
As such, it fails to contradict the opinion of Casey that it is
possible for a worker to lose his balance, fail to grab the handrail, and come into contact with the flywheel.
I thus conclude
that the flywheel, "may be contacted" by a person using the
vertical ladder in question.
It is likely, ·as explained by
Kraemer, that due to the position of one's center of gravity, as
consequence of ascending and descending the vertical ladder, a
hand coming into contact with the flywheel would be thrown away
from it. This does not preclude the possibility, as indicated by
Casey, that due to the high speed of the flywheel, a hand coming
into contact with the flywheel might suffer debridement of the
skin.
Accordingly, I conclude that inadvertent contact with the
flywheel by one using the vertical ladder "may cause injury to
persons." Thus, I conclude that it has been established that,
because the exposed face of the flywheel has not been guarded,
Respondent herein violated 30 C.F.R. § 56.14001.~/

2; In light of this conclusion, and .Eor the reasons set forth in
I, infra, I denied Respondent's Motion for a Directed Verdict
which was made at the conclusion of the Petitioner's case and
renewed again after both Parties had rested.

907

II.
According to Casey the violation herein was significant and
substantial, because an injury was reasonably likely to occur due
to the £act that the hands of the crusher operator using the
ladder come within 6 inches of the flywheel. He noted essentially the high probability of the occurrence of such an accident,
as Respondent runs 2 work shifts per day, 5 days per week, and each
crusher operator makes 4 round trips per shi.Et on the ladder. However, taking into account the following:
Cl)
the handrail is over
8 inches removed from the flywheel in a lateral direction, and
10 inches in front of the flywheel; (2) Respondent has been using
crusher since 1974, all similar to the one in question with a
flywheel only particularly guarded, without any incidences of one
coming in contact with the flywheel; (3) the testimony of the
crusher operator, Hoffman, that he has never come in contact with
the flywheel, and (4) considering the effect of the center of
gravity upon one falling and losing ones' balance, as iestified to
by Hoffman and Kraemer; I conclude that it has not been established
that the hazard of coming into contact with the flywheel would be
reasonably likely to occur (cf. Mathies Coal Co., 6 FMSHRC 1,
C Jan • 19 8 4 ) ) •
According to Casey, coming in contact with the flywheel would
cause debridement of the skin, and "the wheel actually throwing him
off balance, and possibly flipping him and doing more severe damage, breaking bones or • • •
(Tr. 128). I find this evidence not
sufficient to support a conclusion that a debridement is a serious
condition or that a severe injur~ such as a broken bone was reasonably likely to occur. Consequently, I conclude that any serious
injury has not been established to be reasonably likely to occur.
Therefore, I conclude that it has not been established that the
violation herein is significant and substantial (See, cf. Mathies
Coal Co., supra).

III.
Although it is possible that one using the ladder might slip
and injure one's hand against the rotating unguarded surface of
the flywheel, it has not been established that such an occurrence
was likely to occur. Nor has it been established that any serious
injury was reasonably likely to occur. Accordingly,. I conclude
that the gravity of the violation herein was low. It .is clear
that, as testified to by Casey, it was obvious that the surface of
the flywheel was not completely guarded. However, in light of the
fact, as testified to by Edward s. Kraemer and not contradicted,
Respondent has never been cited Eot an unguarded flywheel in spite
'of having crushers since 1974 with similar not completely guarded
flywheels, and considering the fact that no one in the past has
been injured by coming in contact with such a flywheel, I conclude
that Respondent's negligence herein was low.
I also have taken

908

into account the remaining statutory factors set forth in section
llO{i) of the Act as stipulated to by the Parties, as well as the
history of violations set out in Petitioner's Ex. 4. Taking all
these into account I conclude that a· penalty herein of $20 is
proper for the violation found herein.
ORDER
It is ORDERED that Citation No. 3060361 be amended to reflect
the fact that the violation therein is not significant and substantial. It is further ORDERED that Respondent, within 30 days of
this Decision, shall pay $20 as a civil penalty for the violation
found herein.

(f_ ~

Avram Weisberger
Administrative Law Judge
Distribution:
Maureen M. Cafferkey, Esq., Office of the Solicitor, U. s. Department of Labor, 881 Federal Office Building, 1240 East Ninth
Street, Cleveland, OH 44199 {Certified Mail)
Willis P. Jones, Esq., Jones and Bahr.et, Suite 321 L.O.F.
Building, 811 Madison Avenue, Toledo, OH 43624 {Certified Mail)
dcp

909

FEDERAL MINE SAFETY AND HEALTH.REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

MAY 221989

..
.
...
.
.:

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF MANUEL L. GOMEZ, :
Complainant

v.
MID-CONTINENT RESOURCES,
INC. I
Respondent

DISCRIMINATION PRCX:EEDING
Docket No. WEST 89-184-D
DENV CD 89-06
Docket No. WEST 89-213-D
(Consolidated)
Dutch Creek Mine

DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver,-Colorado,
for Complainant1
Edward Mulhall, Jr., Esq., Delaney & Balcomb,
Glenwood Springs, Colorado,
for Respondent.

Before:

Judge Morris

These cases arise under the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et seq., (the "Act").
Complainant has filed an application for reinstatment
pursuant to Commission Rule 44, 29 C.F.R. § 2700.44 and he has
further filed a discrimination complaint pursuant to section
lOSCc> of the Act.
After notice to the parties a hearing on the merits
commenced in Glenwood Springs, Colorado on May 17, 1989.
At the commencement of the hearing the parties moved for the
consolidation of the above cases. Pursuant to Commission Rule
12, 29 C.F.R. S 2700.12, the cases were consolidated.
The parties further advised the judge that they had reached
an amicable settlement of the issues in contest.
The terms of the proposed settlement are that complainant
will withdraw his application for temporary reinstatement and
further waive any reinstatement and ·dismiss his claims herein.
Further, in consideration thereof, respondent agrees to pay
complainant the sum of $4,500.00.

910

Discussion
Complainant appeared with the Solicitor, his counsel, and
stated that he understood the settlement and he further requested
that the proposal be approved.
I find the settlement is proper particularly since all
parties are in agreement.
Accordingly, I enter the following:
ORDER
1.

The settlement agreement is approved.

2. The request for temporary reinstatement in WEST 89-184-D
is dismissed.
3. The complaint of discrimination in WEST 89-213-D is
dismissed.
4. Respondent is ordered to pay to complainant the sum of
$4,500.00 within 7 days of the date of this decision.

Law Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.O. Drawer 790,
Glenwood Springs, CO · 81602 (Certified Mail)

/bls

911

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

May 23, 1989

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

.
.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 89-73
A. C. No. 46-01867-03781

v.
Blacksville No. 1 Mine
CONSOLIDATION COAL COMPANY,
Respondent

.

DECISION
Appearances:

Jack E. Strausman, Esq., Office of the
Solicitor, U. s. Department of Labor,
Arlington, Virginia, for the Petitioner.
Michael R. Peelish, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Merlin

When this case came on for hearing, the parties advised
that they had reached a proposed settlement. Other cases set
for hearing at the same time were heard qn the merits.
The subject citation was issued for a violation of
30 C.F.R. § 50.20Ca) because the operator did not submit the
required form notifying MSHA of an accident within 10 working
days. The form was submitted on the eleventh day. The
original assessed penalty was $150. Operator's counsel
advised that the operator now had decided it would pay the
assessed penalty rather than go to a hearing. However,
counsel pointed out that the one-day delay occurred during a
holiday weekend.
Based upon the foregoing I found that under the circumstances described, negligence was greatly mitigated. Accordingly, a penalty of $75 was assessed from the· bench and
is hereby AFFIRMED.

912

It is ORDERED that the operator pay $75 within 30 days
from the date of this decision.

_:=-;----\~
Paul Merlin
,
Chief Administrative Law Judge
Distribution:
Jack B. Strausman, Esq., Office of the Solicitor, U.
partmept of Labor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203 <Certified Mail)

s. De-

Michael R. Peelish, Esq., Consolidation Coal.Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Robert Stropp, Esq., UMWA, 900 15th Street, N.W., Washington,
DC 20005 (Certified Mail)
/gl

913

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

MAY 231989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

.
.

.
.:

v.
METTIKI COAL CORPORATION,
Respondent

Docket No. YORK 88-30
A. C. No. 18-00621-03624
Mettiki Mine

DECISION
Appearances:

Anita D. Eve, Esq., Office of the Solicitor,
Department of Labor, Philadelphia, Pennsylvania,
for the Secretaryi
·
·
Susan E. Chetlin, Esq., Jane C. Baird, Esq.,
Crowell & Moring, Washington, DC, for Respondent.

Before:

Judge Weisberger

Statement of the Case
In this case, the Secretary (Petitioner) seeks a Civil
Penalty for an alleged violations of the Operator (Respondent) of
30 C.F.R. § 75.326. Pursuant to notice, this case was heard in
Falls Church, Virginia, on February 14, 1989. At the hearing,
Philip Martin Wilt, Barry Lane Ryan, and Dennis Deaver testified
for Petitioner. John Pritt, Carl Randal Johnson, and Mark
Carpenter testified for Respondent. Proposed Findings of Fact
and Briefs were filed by Petitioner and Respondent on April 24,
1989. Respondent's filed a Reply Brief on May 12, 1989.
Respondent, on April 24, 1989, filed a Motion to Correct
Hearing Transcript. Respondent, in its Motion, indicated the
Petitioner did not object.to the Motion, and it is hereby
granted.
Stipulations
At the hearing, the following stipulations were entered
into:
1. That Mettiki Coal Corporation is the owner and operator
of the Mettiki Mine located in Deer Park, Garrett County,
Maryland.

914

2. That Mettiki Coal Corporation and Mettiki Mine are subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977.
3.

That the Mettiki Mine was opened after March 30, 1970.

4. The Administrative Law Judge has jurisdiction over this
case pursuant to section 105 of the Act.
5. A copy of the Order was properly served by Philip M.
Wilt, a duly authorized representative of the Secretary, upon an
agent of the Respondent at the date, time and place stated
therein, and may be admitted into evidence for the purpose of
establishing its issuance, and not necessarily for the truthfulness or relevancy of any statements asserted therein.
6. That the assessment of a civil penalty in this proceeding
will not affect Respondent's ability to continue in business.
7. The appropriateness of the penalty, if any, to the size
of the coal operator's business should be based on the fact that
Respondent's annual production tonnage is 2,294,859.

8. That Mettiki Mine was assessed a total of 382 violations
over 547 inspection days for a 24-month period immediately preceding the issuance of the order involved in th~s case.
9. That, in fact, air from the belt haulage entry was
ventilating at the working face on February 22, 1988, at the time
and place in which Philip Wilt indicated pursuant to Order
No. 3115962.
Findings of Fact and Discussion

I.
On February 22, 1988, while inspecting the E2 Section of
Respondent's Mettiki Mine, Philip Martin Wilt, a MSHA Inspector,
noted that a check curtain at the feeder to the belt had an
opening in the left bottom corner, which he measured as 5 square
feet, and additionally had more than five openings. Wilt termed
the curtain to be "very poorly" and "loosely" installed (Tr. 24),
and said that he measured 1300 cubic feet of air going through
the curtain's opening. He issued a 104Cd){2) Order, citing
Respondent with allowing air from the conveyor belt entry to
enter into and ventilate the active working section. Respondent
concedes that air from the belt did enter the working section. ·
Accordingly, it is found that Respondent herein did violate
section 75.326, supra, which, in essence, provides that air from
the belt entries shall not be used to ventilate active working
places.

915

II.
According to Wilt, if an ignition would have occurred in the
belt line, the resulting dark smoke and gases could have entered
into the working areas causing "zero" (Tr. 39) visibility, and
the possibility of miners working there being overcome by the
gases. Barry Lane Ryan, a MSHA Supervisor, essentially agreed
with Wilt's assessment, and in addition, indicated that in a belt
entry there are ignition sources such as cables and belt rollers.
Also, according to Ryan, a belt rolling over frozen rollers, or
cutting into timbers that are too close to the belt line, creates
friction which is a source of ignition. Ryan also indicated that
coal dust is generated by the belt movement which would then, if
air is flowing from the belt entry to the face, go to the face,
exposing miners to coal dust.
At the time the Order in question was issued, there was no
production on the section, although the belt was in operation.
According to Mark Carpenter, Respondent's section foreman, who
arrived on the section for the start of the shift along with Wilt
and the other miners in the section, indicated that when he went
to make his fire boss inspection, the miners on the shift were at
the tool car, which was located one cross cut inby the face and
between the intake entry and the number four return entry. As
such, the weight of the evidence does not establish that at the
time of the violation there were miners at the face exposed to
air from the belt entry. Ryan's testimony with regard to the
effect of the instant violation, was merely hypothetical, as he
did not observe the conditions on the date in issue. Although,
at best, the testimony of Petitioner's witnesses tends to establish that a health hazard to miners could have been contributed
to by the violation herein, it fails to establish that there was
any reasonable likelihood of a hazard occurring, nor a reasonable
likelihood that it would result in injury of a reasonably serious
nature. As such, I find it has not been established that the
violation herein was significant and substantial Cc.f. Mathies
Coal Co., 6 FMSHRC l (January 1984)).

III.
Wilt indicated that when he observed the curtain in question
on February 22, 1988, it was "loosely" installed (Tr. 24), had
more than five openings, with one in the left hand corner being
5 feet square, and opined that it was an "old curtain", and in
"poor" condition (Tr. 52). In this connection, Wilt indicated
that he relied upon his review of a Daily Section and Time Report
(Exhibit R-3), which indicated that on the previous shift a curtain was hung at ths feeder in an "elapsed time" of 8 minutes.
According to Wilt, he did not see any evidence of rocks or coal
having fallen from the ridge of the roof in the area of the

916

feeder curtain. Essentially Wilt opined that the violation was
due to Respondent's unwarrantable failure, based on 11 • • • the
condition and in the way the.curtain was installed" (Tr. 41). He
also indicated, essentially, that he considered Respondent negligent based on the above factors, as well as the fact that in the
preceding quarter he issued three citations for violations of the
standard at issue.
Ryan indicated that he essentially agreed with Wilt's conclusions with regard to Respondent's negligence, and the fact that
the violation resulted from its unwarrantable failure.
Essentially, Ryan indicated that his opinion in this regard was
based upon the same factors testified to by Wilt. He also considered that it was "unreasonable" for the "high" amount of air
in the belt entry to be regulated through an 8 inch square
regulator (Tr. 61).
·
According to the uncontradicted testimony of John Pritt,
Respondent's section foreman for the day shift, the curtain in
question was installed on February 22, 1988, at the commencement
of the day shift at approximately 8:00 a.m., by being wired to
roof bolts at the top of the roof, and was nailed to rib boards
every 4 feet and to the coal in the rib. He indicated that there
were no major tears in the curtain when it was installed. He
indicated that he had installed the curtain because in the preceding shift the belt and its feeder was moved to a side dump
position from an end dump position. According to Pritt, it took
three persons to hang the curtain, and that the 8 minutes indicated on the Daily Section and Time Report was only an estimate
which was arr'ived at after the shift was completed at 3:00 p.m • •
Pritt indicated that when he left the section at about 2:30 p.m.,
on February 22, he did a preshift examination for the next shift
and the curtain was tight without any major tears and "in good
shape" (Tr. 114). He also indicated, essentially, that the air
was checked at the feeder at that time and was going in the right
direction. He described the curtain, when he left the section,
as "hanging straight up and down" without any force of air in
either direction (Tr. 128). He indicated that the belt was
running when he left, and that power was-subsequently shut off on
the way out.
I have taken into account Wilt's testimony that he did not
observe any evidence of rocks having fallen from the ribs or roof
in the area of the feeder. I find this testimony insufficient to
contradict the testimony of Pritt that when he left the section
at the end of the day shift at approximately 2:30 p.m., the check
cttrtain was "tight" and "in good shape" (Tr. 114).
(In this
connection I note that even Wilt agreed that a curtain could come

917

loose in seconds if there were rocks on the feeder or if people
walk though the curtain. The evidence indicates that miners do
indeed travel through the curtain feeder).
I also find no contradiction to Carpenter's testimony that
upon arrival on the section in the afternoon shift along with
Wilt, he went to perform his fire boss inspection, which usually
includes the belt entry feeder area, and had not yet reached
that area by the time Wilt issued the Order in question. Thus,
it appears that the loosening of the curtain occurred between the
time Pritt left the section at 2:30 p.m., and the time it was
observed by Wilt at 3:45 p.m., and before Carpenter had a chance
to discover it in the course of his fire bossing. Thus,
Respondent had no opportunity to find and tighten the curtain
before Wilt issued the Order in question.
Taking all the above into account, I conclude it has not
been established that the condition, and specifically the air
flow observed by Wilt at the beginning of the afternoon shift,
was the result of any aggravated conduct on the part of
Respondent. Accordingly, I find that it has not been established
that the violation herein resulted from Respondent's unwarrantable
failure.
(Emery Mining Corp., 9 FMSHRC 1997 (1987).

IV.
Inasmuch as the evidence establishes that as a consequence
of the violation herein, ah ignition in the belt area could
result in miners at the working faces being subjected to gases
and dense smoke, I find that the violation herein to be of a
moderately serious nature. Based upon the testimony of Pritt, as
discussed above, III., infra, I find that the violative condition
did not exist at the end of the day shift when Pritt made the
last examination. The record does not establish the cause of the
violative condition, but it is clear that it occurred sometime
between Pcitt's last inspection, and the time it was noted by
Wilt. It is significant to note that Carpenter, who had the
responsibility of inspecting the section prior to the commencement of the afternoon shift, was on his round, and had not yet
had an opportunity to inspect the feeder area before it was cited
by Wilt. Taking into account all the above, I conclude that
Respondent herein was negligent to only a low degree. I also
have considered the various other factors set forth in section llOCi) of the Act, as stipulated to by the Parties, and I
adopt their stipulations. Based on all the above, I conclude
that a penalty of $100 is appropriate for the violation herein of
section 75.326, supra.

918

ORDER
It is hereby ORDERED that Order No. 3115962 be amended to a
section 104(a) Citation to reflect the fact that the violation
cited therein was naither significant and substantial, nor was it
the result of Responden~'s unwarrantable failure.
It is further
ORDERED that Respondent shall pay $100, within 30 days of this
Decision, aa civil penalty for the violation found herein.
It is further ORDERED that the Transcript of the hearing in
this matter be amended to reflect the changes set forth in
Respondent's Motion to Amend Transcript filed on April 24, 1989.

~~

Avram Weisberger
Administrative Law Judge
Distriblltion:
Anita o. Eve., Esq., Office of the Solicitor, u. 5. Departm~nt of
Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Susan E. Chetlin, Esq., Jane C. Baird, Esq., Crowell & Moring,
1001 Pennsylvania Avenue, NW, Washington, DC 20004-2505
(Certified Mail)
dcp

919

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

MAY 241989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner
v •.

CIVIL PENALTY PROCEEDING

.
.
.

Docket No. LAKE 88-138-M
A.C. No. 11-02349-05505
Rockdale Quarry

JOLIET SAND AND GRAVEL COMPANY, :
Respondent
DECISION APPROVING SETTLEMENT
Before: Judge Maurer
On May 18, 1989, the Secretary of Labor on behaif of the
parties to this action, filed a motion to approve the settlement
negotiated between them. At issue in this case are two
violations, originally assessed at $4000 in the aggregate.
Settlement is proposed at $2900.
The above-referenced violations were discovered as a result
of an investigation into a fatal accident which occurred on
May 17, 1988, killing a crushing machine operator at the mine.
More particularly, the operator was ~ited for a violation of
30 C.F.R. § 56.11001 because safe access had not been provided to
the controls of the Stanley rook breaker at the jaw crusher. The
fatality occurred because the machine operator attempted to climb
up to the controls, slipped and inadvertently grabbed one of the
control levers. This swung the hammer around, struck another
workman on the head and pinned the machine operator against a
metal guard and killed him.
The operator was also cited for a violation of 30 C.F.R.
§ 56.14026 because the machine was not provided with a start and

stop electricial control on the boom. This violation is
significant and substantial because the fatality occurred when
the machine operator could not stop the swing hammer.
I accept the parties' representations and approve the
settlement.
ORDER
WHEREFORE, the motion for approval of settlement is GRAN·rED,
and it is ORDERED that respondent pay a penalty of $2900 within
30 days of this order.

Roy J~· Maurer
Admini trative Law Judge

u·

920

Distribution:
Rafael Alva~ez, Esq., U.S. Department oi Labor, Office of the
Solicitor, 230 South Dearborn Street, 8th Floor, Chicago,
IL 60604 (Certified Mail)
Mr. George Comerford, Jr., President, Joliet Sand & Gravel
Company, P.O. Box 254, Joliet, IL 60434 (Certified Mail)
/ml

921

FEDERAL MINE SAFETY AND HEALTH'REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 2ao. 1244 SPEER souLEvARD
DENVER, CO 80204

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

v.
NEVADA MINERAL PROCESSING,
Respondent

.
.
.

.
.:
..
:

MHnvl Z \ 89
49

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 88~273-M
A.C. No. 26-02050-05501
Docket No. WEST 88-278-M
A.C. No. 26-02050-05502
Docket No. WEST 88-306-M
A.C. No. 26-02050-05503

:

:

Nevada Mineral Mill

DECISION
Appearances: George B. O'Haver, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco, California,
for Petitioner;
Annelie Hoyer, Secretary-Treasurer, Nevada Mineral
Processing, Mina, Nevada,
for Respondent.
Before:

Judge Lasher

This matter arises upon the filing by the Secretary of Labor
of three petitions for penalty assessment in the three subject
dockets which collectively contain 7 Citations issued during the
month of March 1988, at Respondent's operation located in the
vicinity of Mina, Nevada. 1/
1/ With respect to docket No. WEST 88-306-M, which originally
contained Petitioner's request for assessments for 2 Citations,
Nos. 3070665 and 3070679, copies of these 2 Citations were
attached to the Petition. However, other paperwork attached to
the petition showed #3070679 involved a violation of 30 C.F.R.
§ 56.200026., whereas the Citation itself alleged a violation of
"30 C.F.R-.-56.2000le". At the hearing, after the 2 parties had
reached meaningful stipulations and given testimony regarding the
issues and the seven violations involved, it became apparent that
Citation No. 3070679 was not one of the Citations they understood
was involved in Docket WEST 88-306-M. Rather, it was Citation
No. 3070678, which alleged a violation of 30 C.F.R. 56.13015Ci).
This also did not jibe with some of the paperwork {specifically,
page 2 of the "Proposed Assessment") attached to the Petition.
Counsel for the Solicitor indicated that Citation No. 3070678
was, in his fi.les, the second Citation contained in Docket
88-306-M:--since the parties had prejudicially acted on this
belief both before and during the hearing, the Petitioner's
petition was amended at hearing to show Citation 3070678 instead
of 3070679, and copies of 3070678 were substituted for 3070679 as
attachments to the petition in the Commission's file.

922

Contentions of the Parties
At the outset of the hearing, the parties stipulated that
the seven violations charged did occur (T. 6, 7). The
Respondent's primary defense raised the question whether its
milling operation (which allegedly was under construction but not
in production at the time of the subject inspection in March,
1988) was within the jurisdiction of MSHA's enforcement
authority and the coverage of the 1977 Mine Act (T. 11, 13).
Respondent was also concerned that it was not allowed the
courtesy of a CAV (Compliance Assistance Visit) for its new
plant. Petitioner contended that 2 of the Citations (numbered
3070667 and 3070675 in Docket WEST 88-278-M) were so-called
"significant and substantial" (S&S) violations and presented
evidence on this issue. The remaining requirement is the penalty
assessment for the seven violations involved.
Jurisdictional Matters
The first question is whether Respondent's custom mill is a
"mine" covered by the Act. Respondent is a Nevada corporation
with offices in 2 states, i.e., in Mina, Nevada, and Blaine,
Washington.
It does not engage in actual extraction of the gold
and silver ore processed in its custom mill, but processes such
for "small miners in the vicinity" (T. 48, 49).
During the period March 21 through 24, 1988, MSHA Mine
Inspector John F. Myer, at the direction of his supervisor,
conducted an inspection of Respondent's operation -- which he
described as a "small mill" consisting of a "crusher, mill,
conveyors, leach solution tank system, a lab, a small shop and an
assay lab." (T. 18, 19, 27). At the time of inspection, 16
employees were working (T. 19, 72) and the operation was in the
final stages construction. Inspector Myer observed the following
kinds of work being carried on:
·
" ••• there was some welding being done outside on some
conveyors and an ore bin that feeds the crusher. There
was some electrical work being done in the mill. There
was assaying being done in the lab and there was shop work
being done." (T. 19, 20).
Inspector Myer was advised by Respondent's Project Manager,
Steven York, that some of the ore in the 15 to 20 ton stockpile
was from a mine in California CT. 20, 21).
At the time of inspection the mill itself was not producing
but its assay lab was operating. Thus the Inspector testified:
"The mill itself wasn't operating. The assay lab was
operating. They were prep sampling. They had a bucking

923

room with a small Bilco Chipmonk crusher, pulverizer,
furnace for fire assay and that portion of the mill was
operating, assaying samples, custom samples, for miners in
the area.
I don't really know where the ore came from but
it was being assayed there." (T. 19) (emphasis added)
The work in the "bucking room" was described as follows:
"The bucking room is where they get the ore, the material,
and they run it through a chipmonk crusher. That's a small
crusher that they do just maybe a sack full of ore and it
runs through the crusher, then it's taken out of there and
put in a pulverizer. It's pulverized to almost powder and
then it's put in crucibles and put in the furnace, along
with lead and some flux to determine the content of the
gold or silver in the ore." (T. 20).
Section 3(h)(l) of the Act, 30 u.s.c. § 802Ch){I), defines a
"mine" in the following language:
"Coal or other mine" means (A) an area of land from which
minerals are extracted * * * CB) private ways and roads
appurtenant to such area, and (C) lands * * * facilities,
equipment * * * or other property * * * used in 1 or to be ..
used in, or resulting from the work of extracting such
materials from their natural deposits * * *, or used in,
or to be used in the milling of. such minerals, or the work
of preparing coal or other minerals, ••• "
[Emphasis added].
Under this definition, it is clear that a "mine" includes
facilities and equipment "used" in the work of milling or preparing minerals, such as Respondent's custom mill.
A preparation facility or milling facility need not have a
connection with the extractor of the mineral in order to be
subject to the Act's coverage. Carolina Stalite Co., 6 FMSHRC
2518, 2519 (1984); Alexander Brothers, Inc., 4 FMSHRC 541, 544
(1982). Further, the construction of the mill itself is an
activity covered under the Act. Bituminous Coal Oper. Ass'n v.
Secretary of Interior, 547 F. 2d 240, 244, 245 Cl977). In any
event, on the inspection day, Respondent's "bucking room" was in
operation. Thus, while the mill itself was not in full
production, that part of the custom mill was in operation and ore
was in fact being processed for the purpose of assaying. It is
thus concluded for these independent reasons that Respondent's
mill was a mine covered by the Act at all material times.
Commerce
With respect to the question whether Respondent's operation
"affects commerce", Judge August F. Cetti, pointed out in his
924

decision in Secretary v. Cobblestone, Ltd., 10 FMSHRC 731, 733
(June, 1988) that the use of the phrase "affect commerce" in the
Mine Act triggers a broad reach of regulatory coverage:
"Looking first to the Act itself, Section 4 of the Act
states that:
"Each c9al or other mine, the pr9(iucts of which enter
commerce, or the operat~ons or products of which affect
commerce, and each operator of such mine and every miner
in such mine shall be subject to the provisions of this
Act."
."Commerce" is defined in section 3(b) of the Act as
follows:
"Trade, traffic, commerce, transportation or communication among the several states, or between a place in
a state and any place outside thereof, or within the
District of Columbia, or a possession of the United
States, or between points within the same state but
through a point outside thereof."
The use of the phrase "which affects commerce" in Section··
4 of the Act, indicates the intent of Congress to exercise
the full reach of its constitutional authority under the
commerce clause. See Brennan v. OSHRC, 492 F.2d 1027 (2nd
Cir. 1974)1 U.S. v. Dye Construction Co., 510 F.2d (10th
Cir. 197.S)~ Polish National Alliance v. NLRB, 332 U.S. 643
(1944)1 Godwin v. OSHRC, F.2d 1013 (9th Cir. 1976)."
Here, Respondent, which has offices in two states (Nevada
and Washington), had ore in its stockpile which had been obtained
from a mine in California. Even if all the ore Respondent were
to process was obtained from the state of Nevada and was not
shipped out of Nevada after processing such circumstance would
not insulate it from affecting commerce since its mere presence
in the intrastate market would have an effect on the supply and
price of such mineral in the interstate market. See Marshall v.
Kilgore, 478 F. Supp. 4 (E.D. Tenn. 1979)1 Fry v. U.S., 421 U.S.
542, 547 (1975).
It is concluded that Respondent is engaged in a mining
activity affecting commerce and that such is covered by the Mine
Act.
CAV Rights
Respondent contends that it should not be assessed penalties
since it was not afforded the right to request a CAV (Compliance
Assistance Visit) prior to the inspection. At the hearing,
Inspector Myer explained the nature of CAVs:

.

925

Q. What ia the policy of your agency, and can you explain
for purposes of the record what a CAV inspection is? .

A. A CAV inspection is a Compliance Assistant Visit. As
an inspector, we go to the mine, when they're ready to go
into production before they produce and we make a courtesy
tour and we inspect the mines and any hazards or corre9tions
that need .to be made, we issue written notices which are
non-penalty notices that are to be corrected and that
they're not assessed. And we do this by written notice
prior to their startup that they request.
Your testimony is that in order to be a CAV inspection,
it has to be requested in advance by the operator, is
that your testimony?

Q.

A.

Yes.

And is that the policy of the agency as.dictated by
your head off ice in Washington, is that correct?

Q.

A.

As far as I know, yes. CT. 24)

The Inspector also convincingly explained why Respondent was
not given a CAV prior to the inspection:
"Q. Mr. Myer, talking about the internal memo, why couldn't
respondent not qualify under your internal guidelines for
a CAV inspection?
·

A. Well, number one, we never were notified, or a request
sent to us in writing that they wanted one. Nor were we
notified that they were a mill under construction.
So your testimony is that you had no knowledge of their
operations until you were told by your supervisor to go out
and do this inspection, is that your testimony?
Q.

A.

That's right."

CT. 27)

With respect to this question, it is first noted that the
•compliance assistance visit" process CEx. P-2) is not a mine
operator's absolute right and such is not provided for in the Act.
Secondly, even under MSHA's internal CAV policies, since it was
not notified by Respondent that the mill (mine) was under construction, there was no opportunity for MSHA, had it chosen to
exercise its discretion and grant a CAV, to conduct such.
Finally, Respondent was apparently unaware of such process at the
time CT. 23-24, ·s4-56 >, and did not request a CAV. On the other
hand, the mine in question is clearly subject to the Mine Act and

926

inspections thereof.!.£! mandated by the Act. Section 103(a), 30
In conjunction therewith, Sections 104(a) and
llO(a) of the Act reguire that a Citation be issued and a penalty
be assessed when a violation occurs. See Old Ben Coal Co., 7
MSHRC 205, 208 (1985). Accordingly, the contention of Respondent
based on its failure to receive a prior CAV is found to lack
merit and is rejected.

u.s.c. S 815.

"Significant and Substantial" Allegations
The Inspector designated two of the Citations as involving
"significant and substantial" CS & S) violations, i.e., Citations
numbered 3070667 and 3070675 in Docket No. WEST 88-278-M.
Citation No. 3070667 charges a violation of 30 C.F.R. § 56.9087,
to wit:
"There was no audible reverse signal alarm on the Clark
275 B 2/ front end loader working in the mill yard area.
Four employees were in the area on foot. The size of the
loader caused an obstructed view to the rear. No spotter
or signal man was being used to signal the operator when
it was safe to back up."
30 C.F.R. § 56.9087, relating to "Audible warning devices
and back-up alarms", provides:
"Heavy duty mobile equipment shall be provided with audible
warning devices. When the operator of such equipment has
an obstructed view to the rear, the equipment shall have
either an automatic reverse signal alarm which is audible
above the surrounding noise level or an observer to signal
when it is safe to back up."
Inspector Myer testified that the subject front end loader
is considered heavy duty mobile equipment, i.e. it weighs approximately 61,000 pounds with tire height of approximately 7
feet. He said that ·because of the height of the equipment the
ground behind it is not visible to the rear for "quite aways,"
i.e., 25-30 feet CT. 36). While the loader was equipped with an
audible signal alarm, it was not operable and there was no signal
man being used. Four miners, in addition to the loader operator,
were working in the area.
Inspector Myer described the hazard as follows:

2/ Respondent pointed out at the hearing CT. 66) that the
correct number is 275A rather than 275B.
927

"A. Well, people on foot, no signalman, and they're engrossed in their work and the loader backs up they're very
apt not to see it. The operator cannot see directly behind
you and they can be run over, backed over.
Q.

Would death or serious injury result.

A. Very definitely the size of this loader and the weight.
It would be fatal. Fact of the matter our latest fatality
in Neva-da is with a front-end loader backing over an
employee."
(T. 35)
The Inspector also testified that two of the miners were
working alongside the loader "because they were going with him to
help him unload what he was carrying." Although the other two
miners were working separately, the loader "probably passed"
within six feet of them (T. 37).
§

Citation No. 3070675 charges an infraction of 30 C.F.R.
56.14001:
"There was no guard covering the flywheels and V-Belts and
pulleys on the Bilco Chipmunk Jaw Crusher in the bucking
room. The wheels were 51 inches around with 4 spokes in the
wheels. The center or hub of the wheel was 4-ft up from
the floor level. The employee bucking samples was exposed
to the moving wheel when feeding· samples into the crusher."

30 C.F.R. § 56.14001 provides:
"Gears, sprockets; chains; drive, head, tail and takeup
pulleys; flywheels; couplings; shafts; sawblades; fan
inlets; and similar exposed moving machine parts which may
be contacted by persons and which may cause injury to
persons, shall be guarded."
On the day of inspection, Inspector Myer observed an exposed
flywheel on the Bilco crusher in the bucking room (T. 38). He
described the crusher as "a small jaw that's used to sample small
amounts of ore for assay purposes". It is driven by V-Belt.s and
pulleys and a flywheel on each side. The Inspector said the
flywheel travels at a "good speed" and that it is fed by
•reaching over the flywheel to put ore into the crusher to feed
the crusher" (T. 38-39). He actually observed an employee
operating the crusher. The employee was required to stand at one
side of the crusher which was in a small, approximately 6 foot by
. 8 foot, room. The Inspector indicated that" ••• you could only
come up to the one side of it where ••• the employee had to put
the ore in" (T. 39). His testimony regarding the nature of the
hazard and probabilities follows:

928

"A. Well, its an unguarded moving machine part. Its
accessible to employees that were working right, right at
the, right at it and having to reach over.

Q.

They could get their arm caught in the flywheel?

A.

Flywheel or the V-Belts and pulleys,

ei~her

one.

Q. What type of any in.jury· would occur from that type of
an accident?
A.
I would--- permanent disability you could lose an arm.
You. could lose fingers •

. Q.

Do these accidents occur frequently in this area?

A. Yes, probably one of the highest of accidents are due
to injuries caused by moving machine parts in the mining
industry." (emphasis added)
(T. 39-40)
A violation is properly designated S & S "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Division, National GyPsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1 (1984), the Commission
listed four elements of proof for S & S violations:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National GyPsum the Secretary of Labor must prove: Cl)
the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard--that is, a measure of danger
to safety--contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious nature.
In the United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129 (1985), the Commission expounded thereon as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U.S. Steel Mining Co, 6 FMSHRC 1834, 1836 (Autust 1984).
We have emphasized that, in accordance with the language
of section 104(d)(l), it is the contribution of a violation

929

to the cause and effect of a hazard that must be signif icant and substantial. U.S. Steel Mining Company, Inc., 6
FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
It is concluded that the Petitioner carried its burden of
proof under Mathies, supra, with respect to both Citations.
Thus, the violations themselves were initially conceded, and both
clearly contributed a measure of danger to the miners who were
exposed to the hazards described and specified by the Inspector.
Both violations, had the hazards actually come to fruition, would
have resulted in serious bodily harm to the miners jeopardized.
Indeed, the violation described in Citation No. 3070667 might
well have resulted in a fatality. The record is clear that with
respect to both violations the miners exposed worked at least at
times in close proximity to the hazard. With respect to the
"inoperable backup alarm" violation, vision was obstructed for
some 25 feet behind the loader. With respect to the unguarded
crusher violation, the operator thereof was required to work
•right at" the hazard in a small confined space and "reach over"
moving machine parts when feeding the crusher. · I therefore find
and infer from the unrebutted evidence of Petitioner cited above
that both hazards which were significantly and substantially
contributed to by the violations were reasonably likely to occur.
Accordingly, both violations are found to be "significant and
substantial."
Assessment of Penalties
Petitioner, at hearing, conceded that Respondent proceeded
in good faith to abate all seven violations after notification
thereof (T. 41}. Respondent conceded that penalties assessed at
the monetary levels proposed by the Secretary would not jeopardize its ability to continue in business (T. 69). Presumably,
since this is a new operation evidence of previous violations was
not proffered and it is inferred that Respondent has no prior
violations. In terms of size, Respondent is small (T. 42) having
16 employees when the Citations were issued and 9 at the present
time. Tonnage and/or sales figures were not available since
Respondent had not commenced normal "production" as of the time
of hearing. In connection with the remaining mandatory penalty
assessment criteria, negligence and seriousness, the record with
respect to the five non-S & S violations is not remarkable. In
view of the strength of Respondent's belief that it was not a
mine subject to the Act, and that if it had been it would have
expected a CAV inspection, its negligence in committing all
sevenviolations is found to be of a relatively low degree. Also,
all seven citations were issued on its first inspection. The two
S & S violations are found to be serious.
After consideration of the foregoing criteria, the penalties
proposed by the Secretary for the seven violations involved (five

930

of which are $20 single penalty assessments) are found reasonable
and appropriate, and are here assessed as follows:
Citation No.
3070664
3070665
3070676
3070677
3070678
3070667
3070675
TOTAL

Penalty
$ 20.00
20.00
20.00
20.00
20.00
85.00
68.00
$253.00

ORDER
1. The Citations involved in this matter, including the
"significant and substantial" designations on Citations numbered
3070667 and 3070675, are affirmed.
2.
Respondent, if it has not previously done so, is ordered
to pay the Secretary of Labor within 30 days from the date hereof
the sum of $253.00 as and for the civil penalties above assessed.

~~4~~#

Michael A. Lasher, ~r.
Administrative Law Judge

Distribution:
George B. O'Haver, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson Street, Suite 1020, San Francisco, CA
94119-3495 (Certified Mail)
Ms. Annelie Hoyer, Secretary-Treasurer, Nevada Mineral
Processing, P.O. Box 167, Mina, NV 89422 (Certified Mail)
/bls

931

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

May 30, 1989

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

v.
L & L G'RAVEL,
Respondent

CIVIL PENALTY PROCEEDING

:

..
.
.
.

Docket No. CENT 89-2-M
A. C. No. 25-01093-05501
Portable Dredge No. 1

AMENDED ORDER OF DEFAULT
Before:

Judge Merlin

This case is before me pursuant to the Commission's Order
dated May 30, 1989.
At the time the original default order, dated April 20,
1989, was issued, the Solicitor had failed to advise that one of
the three citations involved in his 'petition had been vacated.
The assessed penalties for the ,remaining two citations are $74.
Accordingly, judgment by default is entered in favor of the
Secretary and the operator is ORDERED TO PAY the sum of $74
immediately.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Stephen G. Reynolds, Esq., Office of the Solicitor, U. S.
Department of Labor, Room 2106, 911 Walnut Street, Kansas City,
MO 64106 (Certified Mail)
Mr. Lewis L. Herbough, L & L Gravel, Box 585, Valentine, NE
69201 (Certified Mail)
/gl

932

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

MAY 3 0 \989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
·Petitioner
v.
WILLIAMS MECHANICAL AND
WELD I NG, INC. ,
Respondent

CIVIL PENALTY PROCEEDING

.
.
..
.
.

Docket No. SE 88-72-M
A.C. No. 38-00007-05505 M5K
Giant Cement Company

DECISION
Appearances:

Before:

Ken S. Welsch, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia, for
the Secretary of Labor csecretaiy>~ T.E. Peterson,
Esq., Charleston, South Carolina, for Williams
Mechanical & Welding, Inc. (Williams).

Judge Broderick

STATEMENT OF THE CASE
The Secretary seeks a civil penalty in this proceeding for
an alleged violation of the mandatory safety standard in 30
C.F.R. S 56.l6002(2)(c). Pursuant to notice, the case was heard
in Charleston, South Carolina, on April 18, 1989. Thel Hill
testified on behalf of the Secretary. John Infinger, Burt Ardis,
Ernest H. Williams and Franklin Neal testified on behalf of
Williams. At the conclusion of the hearing, counsel for both
parties orally argued their positions on the record, and each
waived his right to file a post hearing brief. Based on the
entire record and considering the contentions of the parties, I
make the following decision.
FINDINGS OF FACT
Williams was a contractor doing maintenance and repair work
for Giant Cement Company. Giant operated a limestone quarry and
cement plant in Dorchester County, South Carolina. Williams
stipulated that it operated as an independent contractor at a
mine site. It had approximately 25 employees. The Secretary
introduced a record of Williams' history of prior violations
which shows a single violation of a mandatory safety standard •
. On February 25, 1988, Williams was engaged in cleaning out a

933

gypsum storage bin, removing the buildup of consolidated gypsum
from the bin using a jackhammer. It had been engaged in this
work for several weeks prior .to February 25, 1988. The bin was
constructed of concrete, and measured 24.feet in diameter and 46
feet in height. It had a capacity of approximately 675 tons.
On February 25, 1988, three men were working at the bin
cleaning task, two inside the bin, Freddie Mack and
Tyrone Gardner, and one on top of the bin, Franklin Neal, tending
a lifeline which was attached to one of the men in the bin,
namely, the one not operating the jackhammer. A lanyard,
approximately six feet long, was hooked to his safety belt and to
the jackhammer operator's belt. Gardner and Mack alternated
using the jackhammer: the one not using the ha1nmer was secured
to the lifeline from the top of the bin1 the one using the hammer
was attached by a lanyard to the first employee.
At about 3:00 p.m., Gardner suggested that they start
cutting the gypsum from the bottom of the bin rather than from
the top. His foreman agreed and directed him to go up into the
bin from below and "get everything down and start from the
bottom." (Tr. 40) Gardner reentered the bin, took the
jackhammer from Mack and began cutting the gypsum. Gardner did
not attach a lifeline to his belt, nor did he attach the lanyard
from Mack's belt to his own. Mack had the lifeline attached to·
his belt. At about 3:20 p.m., Gardner slipped and was pinned
between a mass of gypsum and the side of the bin. His body was
crushed and he was pronounced dead at approximately 4:00 p.m.
when his body was removed from the bin.
Gardner had just turned twenty years of age, and had been
employed by Williams for about two months. He had been working
in the bin for about 30 days. Mack no longer works for Williams,
and Williams was unable to subpoena him to testify at the hearing.
Neal testified that he heard a noise when Gardner slipped and
heard him say he was trapped. However, he could nQt see Gardner
from the top of the bin.
·
REGULATION
30 C.F.R.

56.16002 provides in part:

§

Ca) Bins, hoppers, silos, tanks, and surge piles, where
loose unconsolidated materials are stored, handled or
transferred shall be --

*

*

*

Cc) Where persons are requi~ed to enter any facility listed
in this standard for maintenance or inspection purposes,

934

J

ladders, platforms, or staging shall be provided • • •
Persons entering the facility shall wea:r a safety belt or
harness equipped with a lifeline suitably fastened. A .
second person, similarly equipped, shall be stationed near
where the lifeline is fastened and shall constantly adjust
it or keep it tight as needed, with minimum slack.
ISSUES
1. Whether the evidence shows a violation of the cited
standard?
2.

If so, what is the appropriate penalty?

CONCLUSIONS OF LAW
I. JURISDICTION
Williams operated as an independent contractor at a mine
site. As such it was a mine operator under the Mine Safety Act.
I have jurisdiction over the parties and subject matter of this
proceeding.
II.

VIOLATION

Williams does not contest the fact that one of its
employees, Tyrone Gardner, was working inside a bin or silo or
tank where loose unconsolidated materials were handled, and that
his safety belt was not fastened to a lifelirie. This clearly
constitutes a violation of 30 C.F.R. § 56.16002. Williams
contends that Gardner after entering the bin began using the
jackhanuner against a direct order, but the evidence supporting
this contention is ambiguous. I conclude that Gardner was not
told not to use the jackhammer after he entered the bin from the
bottom.
The practice normally followed by Williams under which one
of the two people in the bin was tied to a lifeline, and a
lanyard was attached from that employee's belt to the belt of the
other employee who ·operated a jackhammer does not meet the
requirments of the standard. The lanyard cannot be considered a
lifeline: as the Investigator testified, it permits too much
slack, and would permit the person on the end of the lanyard to
fall an additional .6 feet (the length of the lanyard). However,
the normal practice was not being followed at the time of the
accident, contrary to the investigation report. At the time of
the accident, the deceased employee entered the bin to perform
work and was not protected by a lifeline or a lanyard. This
constitutes a violation of the mandatory standard.

935

GRAVITY
The violation which I find to have occurred is a serious one.
The failure to use a lifeline could result in a serious injury.
The gravity is somewhat lessened by the fact that the employee
was working near the bottom of the bin CS to 7 feet from the
bottom) and much of the gypsum had been removed. The fatal
accident, moreoever, tragic though it was, did not result from
the violation. Had Gardner been atached to the lifeline tended
by Neal, this would not have prevented the accident, since Neal
was unable to see Gardner when the accident occurred and could
not have prevented it. Nor is it clear that the accident
resulted from a slip or fall. These facts mitigate the gravity
of the violation.
NEGLIGENCE
As I concluded above, Williams' practice of having a single
lifeline for two employees working in the bin did not· comply with
the standard. This. practice had been followed for approximately
30 days. Williams should have been aware of the violative nature
of the practice. However, there is no evidence that Williams was
aware that Gardner was operating the jackhammer in the bin
without being attached either to the lifeline or the lanyard.
I conclude, however, that Williams should have been .aware of the
fact the Gardner was using the jackhammer, and was not attached
to the lifeline. Williams is guilty of ordinary negligence.
PENALTY
Considering the criteria in section llO(i) of the Act, I
conclude that an appropriate penalty for the violation is $900.
ORDER
Based on the above findings of fact and conclusions of law,
citation 2859169 issued February 27, 1988, is AFFIRMED.
Respondent is ORDERED to pay within 30 days of the date of this
order $900 as a civil penalty for the violation found herein.

µ_{1/ltfe~;z.eL

jf

1,tf££
James A. Broderick
Administrative Law Judge

936

Distribution:
Ken s. Welsch, Esq., U.S. Department of Labor, Office of the
Solicitor, 1371 Peach tree ·street, N.E.,-Atlanta, GA 30367
(Certified Mail)
T. E. Petersen, Esq., 775 St. Andrews Boulevard, Charleston, SC
29407 (Certified Mail)

slk

937

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

MAY 301989
. CIVIL PENALTY PROCEEDING

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

FLORIDA MINING & MATERIALS,
Respondent

.
.
:
.
.
.
.

Docket No. SE 88-101-M
A.C. No. 08~00006-05523
Brooksville Rock Plant

DECISION
Appearances:

Michael K. Hagan, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia for
Petitioner~

Archie Clark, Jr., Manager Human Resources and
Safety, Tampa, Florida for Respondent.
Before:

Judge Melick

This case .is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section 105Cd> of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq., the "Act," charging Florida Mining and Materials (the
Company) with seven violations of the regulatory standard at
30 C.F.R. § 50.20. The general issue before me is whether the
company violated the cited regulatory standard and if so what is
the appropriate civil penalty to be assessed in accordance with
section llOCi) of the Act.
The cited standard, 30 C.F.R. § 50.20, provides in part as
follows:
Each operator shall report each accident, occupational
injury, or occupational illness at the mine. The
principal officer in charge of health and safety at the
mine or the supervisor of the mine area in which an
accident or occupational injury occurs, or an
occupational illness may have originated, shall complete
or review the form in accordance with the instructions
and criteria in sections 50.20-1 through 50.20-7 ••• The
operator shall mail completed forms to MSHA within
10 working ·days after an accident or occupational injury

938

occurs or an occupational illness is diagnos·ed. When an
accident specified in section 50.lG occurs, which does
not involve an occupational injury, sections A, B and
items 5 through 11 of section C of form 7000-1 shall be
completed and mailed to MSHA in accordance with the
instructions in section 50.20-1 and criteria contained
in section 50.20-4 through 50.20-6.
The seven citation at bar all charge the failure of the
mine operator to have submitted MSHA form 7000-1 to report an
accident involving an employee. At hearing the Company
admitted the violations but claimed that the Secretary's
proposed penalty was unwarranted in light of the factors
mitigating the negligence findings.
According to Archie Clark, Manager of Human Resources and
Safety, the person in charge of filing the MSHA forms at issue
died in May 1985, apparently just before the Company began
failing to file the reports. According to Clark the office
secretary who was familiar with the MSHA reporting
requirements also suffered a longterm illness during 1986 and
1987 and had been replaced by a temporary secretary. Clark
observed that neither the successor to the deceased manager
nor the temporary secretary had experience in the MSHA
reporting requirements. He also noted that the Company had
not previously failed to report accidents or injuries and
since a new employee had taken a course, apparently in MSHA
reporting requirements, there have been no problems since the
citations at bar.
The Secretary nevertheless argues that any violation of
the cited standard demontrates negligence per se. In this
regard counsel for the Secretary stated in closing argument as
follows:
Any violation of Part 50 is considered to be a
result of a high degree of negligence si~ply because
every MSHA -- every operator subject to MSHA
jurisdiction·knows and ought to taKe it as the
highest responsibility to report injuries that occur
in the workplace. As a matter of policy, that is
what MSHA has determined to do.
The Secretary is clearly wrong however in her analysis.
Negligence is defined in her own regulations as "committed or
omitted conduct which falls below a standard of care
established under the Act to protect persons against the risks
of harm", 30 C.F.R. § 100.3Cd). In particular then in
determining the existence, vel non, of negligence the facts of
each case must be examined.--In this case the testimony of

939

Mr. ClarK is undisputed that the two persons with knowledge of
MSHA filing requirements had become unavailable during the
time in which the cited accidents should have been reported.
The evidence also is undisputed that both before and after the
cited deficiencies the MSHA reports were properly filed.
Under the circumstances I agree that there is indeed a
mitigating basis for a reduction in the negligence findings.
In assessing a civil penalty in this case I have also
considered the Respondent's history of violations, that the
violations were abated in good faith, and that the operator is
large in size. In regard to gravity I concur with the
observations made by Chief Judge Merlin in Secretary v.
Consolidation Coal Co., 9 FMSHRC 727 at 733-734 (1987)
concerning similar reporting violations:
Gravity cannot be doubted in view of the fact that
Part 50 is the cornerstone of enforcement unde-r the
Act. Since part 50 statistics provide the.basis for
planning, training and inspection activities,
accurate reporting is essential. Moreover, failure
accurately to report could have extremely dangerous
consequences by concealing problem areas in a mine
which should be investigated by MSHA inspectors. In
short, without proper compliance by the operator
under Part SO, the Secretary could not know what is
going on in the mines and, deprived of such
information, he would be unable to decide how best
to meet his enforcement responsibilities.
I

Under the circumstances I find that a civil penalty
of $50 for each of the 7 violations is appropriate.
ORDER
Florida Mining and Materials is directed to pay civil
penalties of $350 within 30 days of the date of this decision.

Iiaw Judge

\\

940

Distribution:
Michael K. Hagan, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 339, 1371 Peachtree Street, N.E.,
Atlanta, GA 30367 (Certified Mail)
Mr. Archie Clark, Jr., Manager Human Resources and Safety,
Florida Mining & Material, P.O. Box 23965, Tampa, FL 33630
(Certified Mail)
·
·
nt

941

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

MAY 301989
BETH ENERGY MINES, INC.,
Contestant

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

.
.
.
.
.:
.
.

CONTEST PROCEEDING
Docket No; WEVA 88-268-R
Citation No. 28975091 5/23/88
Mine No. 108
Mine I.D. 46-03887

:

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

v.
BETH ENERGY MINES, INC.,
Respondent

.:
.
.
.
.:

CIVIL PENALTY PROCEEDING
Docket No. WEVA 88-345
A.C. No. 46-03887-03570
Mine No. 108

DECISION
Appearances:

R. Henry Moore, Esq., Buchanan Ingersoll, P.C.,
Pittsburgh, Pennsylvania for Beth Energy Mines,
Inc.1
Nanci A. Hoover, Esq., Office of the Solicitor;
u.s. Department of Labor, Philadelphia,

Pennsylvania for the Secretary of Labor.

Before1

Judqe Melick

These consolidated cases are before me under
section lOSCd) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801 et seg., the "Act," to challenge one
citation issued by the Secretary of Labor against Beth Energy
Mines, Inc., (Beth Energy) and for review of civil penalties
proposed by the Secreta~y for the violation alleged therein.
The evidence shows that on August 12, 1976, MSHA
Inspector-Frank J. Cervo issued Notice to Provide Safeguards
lFJC at Mine No. 108, then operated by the Bethlehem Mines
Corp., Beth Energy's predecessor. That safeguard notice
quoted the criteria set forth in 30 C.F.R. § 75.1403-lOCe)
providing that."positive-acting stopblocks or derails shall
be provided near the end of all supply tracks."

942

It is undisputed that the same safeguard had been issued
at all mines with haulage track in District 3, the MSHA
district which includes Mine No. 108. It is also undisputed
that Mine No. 108 utilizes trac){ paulag-e only to move miners
and supplies through the mine arid'that such a mine differs
significantly from mines where the track is used to haul coal
in regard to the volume of traffic, the size of trips and the
size of the locomotives and cars.
Sometime before February 1988, all of these safeguards
regarding the use of positive acting stopblocks or derails in
District 3 were uniformly modified to include language
prohibiting the use of certain types of stopblocks. Such a
modification was issued at Mine 108 on February 17, 1988, by
Inspector Scott Springer and read as follows:
Safeguard Notice lFJC issued ~8-12-76 is hereby modified
to include the following statement:
Positive acting stopblocks, derail or chain type
car holds shall be used to secure or prevent
runaways of track mounted haulage equipment. Other
devices not specifically designed to secure track
mounted haulage equipment to prevent runaways are
not acceptable.
It is undisputed that this standardized modification was
prepared from a sample form furnished by MSHA's District 3
office. It is further undisputed that this standardized
language was applied to· all track haµlage mines in District 3,
regardless of the conditions in ~ny particular mine. It was·
intended to prohibit reliance on skids or chained timber

stopblocks and to require cha;n type car holds. Beth Energy
installed such car holds but continued to also use a timber
arrangement.
0

On April 28, 1988, Inspecto~ Roy Bennett issued an
additional modification to Safeguard Notice lFJC. The
modificatio~ reads·in relevant part as follows:
Positive acting stopblocks, derails or chain type
car holds shall be used to secure or prevent
runaways of track mounted haulage equipment. Other
devices not specifically designed for sucn purpose
are not acceptable· such as skid retarders, post or
crib block crossed over rails of any design in

943

front or rear of haulage equipment, wooden chocks
under wheels or jill pokes of any design.
It is undisputed that this modification was also issued
on a district-wide basis in MSHA District 3, without regard
to conditions in the particular mines and was also based upon
a dample format prepared by the district office.
On May 23, 1988, Inspector Bennett traveled to the J-8
section of Mine 108 with Phil Burnside, a company Mine
Inspector, and Mason Payne, a UMWA miners' representative.
Upon arriving at the J-8 section they parked their vehicle
outby several other vehicles including two supply cars near
the end of the track. Beth Energy inaintains that it had a
timber stopblock in place at this location to provide
protection from runaway haulage equipment. It concedes
however that the chain-type car hold required by the latest
modification was not attached to the supply cars arid was in
fact located approx.imately 30 feet. outby the ca.rs.
Inspector Bennett accordingly issued the citation at bar
for failure to have the chain-type car hold attached to the
supply cars. More specifically the citation alleges a
"significant and substantial" violation of 30 C.F.R. §
75.1403 and Safeguard lFJC and reads as follows:
Two supply cars were on the J8 section supply track
and were not chained to prevent runaway. The tie
down chain was located 30I feet outby the cars.
Beth Energy raises two related arguments that may be
dispositive of these cases: (1) whether the modification to
Safeguard lFJC upon which the citation at bar is based, was
properly issued in that it was issued on a district-wide
basis without consideration of the specific conditions at
Mine 108; and (2) whether the issuance of the original
underlying safeguard in 1976 was proper in that it was issued
on a district-wide basis without consideration 9£ the
specific conditions at Mine 108. Inasmuch as I agree that
neither the original safeguard nor the subsequent
modifications were properly issued, the citation at bar,·
based upon such safeguard and modifications, must be vacated.
Section 314(b) of the Act provides as follows:
Other safeguards, adequate, in the judgment of an
authorized representative of the Secretary, to
minimize hazards with respect to transportation of
men and mate.rials shall be provided.

944

The regulatory standard at 30 C.F.R. § 75.1403 contains
the same provisions. The regulatory standards also set forth
criteria, similar to those for the approval of individual
mine plans for ventilation and roof con-trol, to be applied
when determining whether a safeguard is necessary. The
operation of these criteria are described in
30 C.F.R. § 75.1403-l(a).
Sections 75.1403-2 through 75.1403-11, set out the
criteria by which an authorized re~resentative of
the Secretary will be ·guided in requiring other
safeguards on a mine-by-mine basis under § 75.1403.
Other safeguards may be required. (Emphasis
added.)
As with the criteria for the approval of individual mine
plans, these safeguard criteria are not in themselves
mandatory safety standards but become enforceable only when
an operator is given notice through the issuance of a
safeguard notice. See Secretary v. Southern Ohio Coal Co.,
10 FMSHRC 963 (1988).
In Southern Ohio Coal Co., supra, the Commission
discussed the issu.e of the general application of safeguards
but did not rule on the specific issue of whether a generally
applicable safeguard would be invalid. It discussed the
issue as follows:
The Commission has observed that while other
mandatory safety and health standards are adopted
through the notice and comment rulemaking
procedures set forth in section 101 of the Act,
section 314(b) extends to the Secretary an
unusually broad grant of regulatory
power--authority to issue standards on a
mine-by-mine basis without regard to the normal
statutory rulemaking procedures. Southern Ohio
Coal Co., supra, 7 FMSHRC at 512. The Commission
also has recognized that the exercise of this
unique authority must be bounded by a rule of
interpretation more restrained that that accorded
promulgated standards. Therefore, the Commission
has held that a narrow construction of the terms of
a safeguard and its intended reach is required and
that a safeguard notice must identify with
specificity the nature of the hazard at which it is
directed and the remedial conduct required by the
operator to remedy such hazara.

945

These underlying interpretive principles strike an
appropriate balance between the Secretary's
authority to require safeguards and the operator's
right to notice of the conduct required of him.
They do not, however, resolve the important issue
raised here for the first tirne--~hether a notice to
provide safeguard can properly be issued to address
a transportation hazard of a general rather than
mine-specific nature. The United States court of
Appeals for the District of Columbia Circuit, in
the context of the Mine Act's provision for
mine-specific ventilation plans, has recognized
that proof that ventilation requirements are
generally applicable, rather than mine-specific,
may provide the basis for a defense with respect to
alleged violations of mandatory ventilation plans.
In Zeigler Coal Co., supra, the court considered
the relationship of a mine's ventilation plan
required under section 303(0) of the Act, 30 u.s.c.
§ 863(0), to mandatory health and safety standards
promulgated by the Secretary. The court explained
that the provisions of such a plan cannot "be used
to impose general requirements of a variety·
well-suited to all or nearly all coal mines" but
that as long as the provisions "are limited to
conditions and requirements made necessary by
peculiar circumstances of individual mines, they
will not infringe on subject matter which could
have been readily dealt with in mandatory standards
of universal application." 536 F.2d at 407; See
also Carbon County.Coal Co., 6 FMSHRC 1123, 1127
(May 1984} (Carbon County I); Carbon County Coal
Co., 7 FMSHRC 1367, 1370-72 (September 1985)
TCarbon County II).
Whether, as the judge believed, a similar type of
challenge may be made to a safeguard notice is a
question of significant import under the Mine Act.
Giv·en the manner in which this important question
was raised and addressed in the present case, and
the nature of the evidence in this record, it is a
question that we do not resolve at this time.
10 FMSHRC at 966-7.
I find that indeed with respect to the proper
interpretation of safeguard notices an analogy can properly
be m~de i::o the law that has developed concerning the adoption
of mine plans. In Carbon County Coal Corp., 7 FMSHRC 1367
(1985), the Commission addressed a similar issue. There an
MSHA district office sought to require Carbon County to

946

include a provision in its ventilation plan concerning
auxiliary fans. The provision was not one set forth in the
criteria for ventilation plans in 30 C.F.R. § 75.316-2 but
was a "guideline" issued by the district. The Commission did
not address the merits of the inclusion of the disputed
provision in the plan but rather held that the attempt to
include a generally applicable provision was improper,
stating as follows:
Because we conclude that the uncontroverted
material facts establish that MSHA's decision to
impose the free discharge capacity provision was
not based upon particular circumstances at the
Carbon No. 1 Mine, but rather was imposed as a
general rule applicable to all mines, we hold, for
the reasons stated in Zeigler and enunciated here,
that MSHA's insistence upon the free discharge
capacity provision, MSHA's revocation of Carbon
County's ventilation plan, and MSHA's revocation of
Carbon County's ventilation plan, and MSHA's
subsequent citation of Carbon County for a
violation of section 75.316, were not in accord
with applicable Mine Act procedure. Also, if MSHA
believes the free discharge capacity provision to
be of universal application, the Secretary may
proceed to rulemaking under section 101 of the Mine
Act and promulgate the free discharge capacity
provision as a nationally applicable mandatory
safety standard.
7 FMSHRC at 1375.
The Commission further discussed the issue of the
application of general guidelines, quoting Zeigler coal Co.
v. Kleppe, 536 F.2d 398 CD.C. Cir. 1976):
The approval-adoption process protects operators
and miners by assuring that particular conditions
at a mine are addressed by individualized safety
requirements. The court in Zeigler, in a
discussion we have found "persuasive and
compelling" Carbon County Coal Co., 6 FMSHRC at
1127, described the limits the statute places upon
the Secretary regarding the restricted subject
matter of a ventilation and methane and dust
control plan:
Section 303(0) specifically states that
the plan is to be "suitable to the
conditions and the mining system of the
coal mine ••• " The context of the plan
requirement, amidst the other provisions

947

of § 303, which set forth fairly specific
standards pertaining to mine ventilation,
further suggests that the plan idea was
conceived for a quite narrow and specific
purpose. It is not to be used to impose
general requirements of a variety
well-suited to all or nearly all coal
mines, but rather to assure that there is
a comprehensive scheme for realization of
the statutory goals in the particular
instance of each mine.
[I]nsofar as those plans are limited to
conditions and requirements made
nece~sary by peculiar circumstances of
individual mines, they will not infringe
on subject matter which could have been
readily dealt with in mandatory standards
of universal application. 7 FMSHRC at
1371-2.
This legal analysis is analogous to the application of
district-wide criteria for safeguards. Under the applicable
regulations MSHA may impose requirements on an operator on a
mine-by-mine basis subject to the specific conditions and
requirements necessitated by the peculiar circumstances at a
particular mine. Conversely.and by similar analogy it is
clear that safeguards issued under 30 C.F.R. § 75.1403 cannot
be used to impose general requirements on all mines
throughout a district without, regard to the circumstances of
the specific mines. Since it is undisputed that the original
safeguard in this case, as well as the subsequent
modifications, were issued on a district-wide basis without
regard to the specific conditions at Mine 108 they were not
properly issued. Citation No. 2897509, conditioned upon the
validity of that safeguard and its modifications, must
therefore be vacated. See U.5. Steel Mining Co., 4 FMSHRC
526 <Chief Judge Merlin 1982), Southern Ohio Coal co., 9
FMSHRC 273 (Judge Maurer 1987), rev'd on other grounds, 10
FMSHRC 963 (1988), and Southern Ohio Coal Co., lU FMSHRC
1564, (Judge Weisberger, 1988).

948

ORDER
Citation No. 2897509 is vacated.

~y~

Adminis·
.(703'> 1

Law Judge

l

Distribution:

Nanci A. Hoover, Esq., Office of . e Solicitor, U.S.
Department of Labor, 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll Professional
Corporation, 600 Grant Street, 57th Floor, Pittsburgh, PA
15219 (Certified Mail)

nt

949

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

March 30, 1989

.
:
.:
.
v.
TEXAS UTILITIES MINING, CO., .
.
Respondent
:

SECRETARY OF LABOR,
MI~E SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 88-145
A. C. No. 41-01192-03525
Big Brown Strip

DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

The parties have filed a motion to approve settlement of the
twenty violations involved in this case. The penalties were
originally assessed at $5,000 and the proposed settlement is for
$5,000.
The parties' motion discusses the violations in light of the
six statutory criteria set forth in section llOCi) of the Federal
Mine Safety and Health Act of 1977. All twenty citations, were
issued for violations of 30 C.F.R. § 50.20Ca) ·because reportable
injuries which occurred during 1985, 1986 and 1987 and were not
reported to MSHA. Each violation was originally assessed at $250
and the operator has agreed to the full amount for every violation. In the past I have expressed the opinion that reporting
violations are serious. See, Secretary of Labor v. Consolidation
Coal Company, 10 FMSHRC 1633 (1988). These settlements are
consistent with my previously stated views.
Accordingly, the motion to approve settlement is GRANTED and
the operator is ORDERED TO PAY $5,000 within 30 days from the
date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Daniel Curran, Esq., Office of the Solicitor, u. s. Department of
Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Christopher Miltenberger, Esq., Worsham, Forsythe, Sampels &
Wooldridge, Thirty-Two Hundred, 2001 Bryan Tower, Dallas, TX
75201 (Certified Mail)
/gl

950

ADMINISTRATIVE LAW JUDGE ORDER

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

May 12, 1989

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

v.
·. NEW ERA COAL COMP ANY,
INCORPORATED,
Respondent

.
.
.
..
.

CIVIL PENALT¥ PROCEEDING
Docket No. KENT 89-21
A. C. No. 15-10753-03533
New Era Mine No. 1

ORDER RESPONDENT TO SHOW CAUSE
The Solicitor has submitted a motion for default judgment in
this case.
In his motion the Solicitor advises that although the
operator has paid the originally assessed penalty in full, this
payment should not be.construed as a settlement since no agreement has been reached between the parties. Consequently, the
Solicitor asks that an order to show cause be issued and that if
there is no satisfactory response thereto, an order of default
thereafter be entered against toe operator.
The operator should understand that ~here can be no settlement unless both parties agree to it. The operator cannot dispose of a case through a settlement by paying the penalties without the Solicitor's concurrence. The Soltcitor's present motion
is well taken.

..

Accordingly, it is ORDERED that within 21 days from the date
of this order the operator show good reason why it should not be
held in default. Otherwise, a default judgment will be entered.

Paul Merlin
Chief Administrative Law Judge
Distribution:
W. F. Taylor, Esq., Office of the Solicitor, u. s. Department of
Labor, 2002 Richard Jones Road, Suiti B-201, Nashville, TN 37215
(Certified Mail)
Mr. Keith Akers, Safety Director, New Era Coal Company, Inc.,
29501 Mayo Trail, Catlettsburg, KY 41129
(Certified Mail)
/gl

951

952

~u.s.GOVERNlll£NT

PRINTING orrICE:1989-241-15Si04756