JUNE 1989
COMMISSION DECISIONS
06-15-89
06-15-89
06-27-89

Utah Power & Light Company·
Sec. Labor for Jerry Aleshire, et al. v.
Westmoreland Coal Company
Consolidation Coal Company

WEST 89-161-R
WEVA 84-344-D

Pg.
Pg.

953
960

VA

Pg.

966

KENT 89-28-D

Pg.

981

KENT 88-152
WEVA 89-14
WEST 88-62-M
WEST 89-3-R
WEVA 89-89-D
KENT 88-174
LAKE 88-118-M
LAKE 89-73-DM

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

988
990
997
1015
1055
1056
1058
10q4

PENN 86-297-R
WEVA 89-167-D
KENT 89-25-D
SE
89-18-R
WEST 88-235-M
KENT 88-127-D
WEST 88-233
WEST 88-159
WEST 88-300-M
LAKE 86-45-D
WEVA 89-22
WEVA 88-290-R
WEVA 89-51
CENT 88-108
KENT 88-104
CENT 89-6-M
WEVA 89-114-D
CENT 89-25-D

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

1065
1067
1072
1079
1084
1086
1092
1094
1096
1099
1103
1105
1115
1122
1154
1192
1193
1194

KENT 88-113
CENT 89-30-M
VA
89-3-M
WEST 88-84-R
PENN 88-200
SE
89-51-M
VA
89-14-D

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87-27

ADMINISTRATIVE LAW JUDGE DECISIONS
06-02-89
06-05-89
06-05-89
06-06-89
06-06-89
06-07-89
06-09-89
06-09-89
06-09-89
06-09-89
06-09-89
06-14-89
06-13-89
06-14-'89.
06-15-89
06-15-89
06-15-89
06-15-89
06-19-89
06-19.-89
06-20-89
06-20-89
06-20-89
06-20-89
06-20-89
06-20-89
06-20-89
06-20-89
06-21-89
06-22-89
06-23-89
06-26-89
06-27-89
06-29--89

Sec. Labor for Robert Vaughn v. Sumco, Inc.
and R.E. Summers
Green River Coal Company
Frank Irey, Jr., Inc.
Cobblestone, Ltd.
Mid-Continent Resources, Inc.
Sec. Labor for David Haynes v. Dedondor Coal Co.
Green River Coal Company
Edward Kraemer & Sons, Inc.
Sec. Labor for Thomas Gille v. Yellow River
Supply Corporation
Florence Mining Company
Sec. Labor for John L. Jones v. Virginia Carbon
Sec. Labor for Hike Ammerman v. Peabody Coal
Jim Walter Resources
Lakeview Rock Products, Inc.
Troy W. Conway, Jr. v. Peabody Coal Company
Beaver Creek Coal Company
Beaver Creek Coal Company
Urralburu Mining Company
Paula L. Price v. Monterey Coal Company
Consolidation Coal Company/McElroy Coal Co.
Consolidation Coal Company
Consolidation Coal Company
Dolet Hills Mining Venture
S H M Coal Company
Tanner Sand & Gravel
William Wayt v. Consolidation Coal Company
Sec. Labor for Charles A. Herren v. Don
Griffith Construction
K T K Mining and Construction Co.
Bandas Industries Incorporated
A. H. Smith Stone Company
Beaver Creek Coal Company
Consol Pennsylvania Coal Co.
Moltan Company
James L. Woody v. Clinchfield Coal Co.

JUNE 1989
Review was granted in the following cases during the month of June:
Utah Power & Light Company v. Secretary of Labor, MSHA, Docket No. WEST 89-161-R.
(Judge Morris, April 24, 1989)
Roger L. Stillion v. Quarto Mining Company, Docket No. LAKE 88-91-D.
Fauver, May 9, 1989}

(Judge

Ozark-Mahoning Company v. Secretary of Labor, MSHA, Docket No. LAKE 88-128-RM.
(Judge Koutras, May 9, 1989)
Review was denied in the following case during the month of June:
Stenson Begay v. Liggett Industries, Inc., Docket No. CENT 88-126-D.
Maurer, May 17, 1989)

(Judge

COMMISSION DECISIONS

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

June 15, 1989

UTAH POWER AND LIGHT COMPANY,
MINING DIVISION

v.

Docket No. WEST 89-161-R

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

BEFORE:

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

ORDER

BY THE COMMISSION:
In this contest proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982) ("Mine Act" or
"Act") , .Utah Power and Light Company, Mining Divis ion ( "UP&L") , pursuant
to the provisions of section'. 105(b)(2) of the Mine Act and Commission
Procedural Rules 45 and 46, has filed with the Commission an Application
for Temporary Relief from an enforcement action taken against it by the
Secretary of Labor. l/ For the following reasons, we deny UP&L's

ll

Section 105(b)(2) of the Mine Act provides:
An applicant may file with the Commission a
written request that the Commission grant temporary
relief from any modification or termination of any
order or from any order issued under section [104]
of this [Act] together with a detailed statement
giving the reasons for granting such relief. The
Commission may grant such relief under such
conditions as it may prescribe, if -(A) a hearing has been held in which all
parties were given an opportunity to be heard;

953

Application.
Briefly, the relevant factual and procedural background is as
follows. On March 16, 1989, an inspector of the Department of Labor's
Mine Safety and Health Administration ( 11 MSHA 11 ) issued to UP&L at its
Cottonwood underground coal mine a citation containing significant and
substantial and unwarrantable failure findings made pursuant to section
104(d)(l) of the Mine Act, 30 U.S.C. § 814(d)(l). With this citation as
. (B) the applicant shows that there is
substantial likelihood that the findings of the
Commission will be favorable to the applicant; and
(C) such relief will not adversely affect
the health and safety of miners.
No temporary relief shall be granted in the case of
·a citation issued under subsection (a) or (f) of
section [104] of this [Act]. The Commission shall
provide a procedure for expedited consideration of
applications for temporary relief under this
paragraph.
30 u.s.c. § 815(b)(2).
Commission Procedural Rules 45 and 46 implement section 105(b)(2)
of the Act and state:
45

Procedure.

(a) When to file. An application for temporary
relief may be filed at any time before the issuance
of a final order in the proceeding to which the
application relates.
(b) Statements in opposition. The parties opposing
the application shall file statements in opposition
within 3 days after rec~ipt of the application.
(c) Prior hearing required. Temporary relief shall
not be granted prior to a hearing.
46

Contents of application.
(a) An application for temporary relief shall
contain: (1) A statement of the specific relief
requested; (2) a showing of substantial likelihood
that the findings and decision of the Judge or the
Commission in the matters to which the application
relates will be favorable to the applicant; and
(3) a showing that such relief will not adversely
affect the health and safety of miners in the
affected mine.
(b) An application for temporary relief may be
supported by affidavits or other evidentiary matter.

29 C.F.R. §§ 2700.45 & .46.

954

a predicate, MSHA issued a section 104(d)(l) order of withdrawal at the
same mine on March 20, ·1989. The order alleges that UP&L violated 30
C.F.R. § 75.400, a mandatory safety standard dealing with accumulation
of combustibles, and also charges that the violation was significant and
substantial and re~ulted from UP&L's unwarrantable failure to comply
with the standard. The order was terminated within an hour of issuance
upon UP&L's abatement of the alleged violative conditions. In separate
proceedings, UP&L challenged both alleged violations. The two
proceedings were assigned to Commission Administrative Law Judge John J.
Morris.
In an expedited decision issued on April 12, 1989, Judge Morris
vacated the special finding of unwarrantable failure contained in the
March 16 citation, and modified the citation to one issued pursuant to
section 104(a) of the Mine Act, 30 U.S.C. § 814(a). Utah Power. and
Light Co., 11 FMSHRC 586 (April 1989)(ALJ). Neither party sought review
of that decision. In an expedited decision issued on April 24, 1989,
Judge Morris upheld the cited violation and the validity of the March 20
section 104(d)(l) withdrawal order. 11 FMSHRC 710 (April 1989)(ALJ).
The April 24 decision makes no reference to the judge's modification of
the March 16 citation in his earlier decision.
UP&L filed its Application for Temporary Relief with the
Commission on May 12, 1989. The Secretary filed an Opposition to UP&L's
Application for Temporary Relief and we permitted UP&L to file a Reply
to the Secretary's Opposition. UP&L also petitioned the Commission for
discretionary review of the judge's decision challenging, inter alia,
the judge's upholding of the special finding of unwarrantable failure.
On June 2, 1989, we granted UP&L's petition for discretionary review.
In its Application for Temporary Relief, UP&L specifically seeks
relief from the finding of unwarrantable failure set forth in the
March 20 citation. It argues that, because the judge's decision leaves
intact the finding of unwarrantable failure, the Cottonwood mine is
exposed to closure under the section 104(d) "chain" in the event that
unwarrantable failure allegations are made in subsequent anf orcement
actions taken by the Secretary pending Commission review of the judge's
April 24 decision. Both UP&L and the Secretary agree that, because of
the judge's modification of the March 16 predicate citation, the section
104(d)(l) order in this matter. should be deemed to be modified by
operation of law to a citation. UP&L App. 4-5; S. Opp. 3-4. See
Consolidation Coal Co., 4 FMSHRC 1791, 1794-96 (October 1982). The
Secretary argues in opposition that the express language of section
105(b)(2) of the Mine Act provides for temporary relief only from orders
issued pursuant to section 104 and, because the order was modified to a
citation by operation of law, the Commission lacks jurisdiction to grant
the temporary relief requested. Further, the Secretary asserts that
relief under section 105(b)(2) is obtainable only from unabated
withdrawal orders and the order in this case was abated within an hour
of its issuance. In reply, UP&L contends that the plain language of
section 105(b)(2) also provides for relief from modifications of orders
issued under section 104, which UP&L claims is the case here. UP&L also
argues that only citations issued under subsections (a) and (f) of
section 104 are expressly excluded from temporary relief under the

955

language of section 105(b)(2). According to UP&L, because the
enforcement action presently at issue is a "section 104(d)(l) citation,"
resulting from the modification of the original section 104(d)(l) order,
temporary relief is not precluded by the terms of section 105(b)(2).
We conclude that the plain language of section 105(b)(2) requires
denial of UP&L's Application. Section 105(b)(2) sets forth the
conditions under which temporary relief may be granted under the Act and
Collllllission Procedural Rules 45 and 46 merely implement this statutory
prov1s1on. 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. The legislative
history of section 105(b)(2) 1 s nearly identical predecessor provision in
the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et
seq. (1976)(amended 1977) ("1969 Coal Act"), indicates that Congress intended, as the language of the Mine Act and the 1969 Coal Act clearly
reflects, that temporary relief lie only from withdrawal orders, not
from citations or from the equivalent "notices of violation" under the
1969 Coal.Act. See Senate Subcommittee on Labor, Committee on Labor and
Public Welfare, 94th Cong. 1st Sess., 1 Legislative History of the
Federal Coal Mine Health and Safety Act of 1969, at 1603 (1975) ("1969
Coal Act Legis. Hist."). We recently made clear in denying a request
for section 105(b)(2) temporary relief that such relief applies only to
orders of withdrawal issued under section 104 of the Act. Pennsylvania
Electric Co., Docket No. PENN 88-227, Order at 1-2 (May 8, 1989).
Moreover, the enforcement action in question is, contrary to
UP&L's characterization, a citation issued pursuant to the authority of
section 104(a) of the Act. As such, it is expressly excluded from the
reach of temporary relief. As discussed below, the collllllonly used phrase
"section 104(d)(l) citation" is merely a term of convenience and does
not indicate a separate basis for issuance of citations.independent from
section 104(a).
Section 104(a) is the source of the Secretary's power to issue
citations for alleged violations of the Act. See, ~' Nacco Mining
Co., 9 FMSHRC 1541, 1545 & n. 6 (September 1987); Consolidation Coal
Co., 6 FMSHRC 189, 191-92 (February 1984). Section 104(d)(l) states
that if an authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety standard and "if
he also finds that, while the conditions created by such violation do
not cause imminent danger, such violation is of such nature as could
significantly and substantially contribute to the cause and effect of a
coal or other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards, he shall include
such finding in any citation given to the operator under the Act."
(Emphasis added). Thus, the statutory language makes clear that
"significant and substantial" and "unwarrantable failure" determinations
by MSHA inspectors constitute special findings that are "includ[ed]" in
any citation issued under the authority otherwise conferred upon the
Secretary by the Act.

956

This view of the Act is reinforced by the legislative history of
section. 104(a) 1 s predecessor provisions in the 1969 Coal Act, in which a
key House Committee report explained that when a "representative [of the
Secretary] finds a violation of a standard and further finds that the
violation is caused by an unwarrantable failure on the part of the
operator in complying with the particular standard, he includes such
additional finding in the notice [of violation] issued under subsection (b)" [section 104(b) of the 1969 Coal Act essentially now is
section 104(a) of the Mine Act]. H. Rep. No. 653, 91st Cong. 1st
Sess. 8 (1969), reprinted in 1969 Coal Act Legis. Hist. 1038. This
relationship between citations issued pursuant to section 104(a) and the
special findings provided for in section 104(d) was also discussed in
Consolidation Coal, supra, 6 FMSHRC at 191-92, in which we approved the
inclusion of significant and substantial findings in a citation issued
under section 104(a). Finally, in~' supra, we expressly referred
to a "citation issued with sectiOn 104(d) findings" and explained that
the term "section 104(d) citation" was used for convenience to
distinguish it from a section 104(a) citation not containing such
findings. 9 FMSHRC at 1545 n.6.

957

Accordingly, we hold that the citation from which temporary relief
is sought by UP&L is a section 104(a) citation with special findings and
as such is not within the purview of section 105(b)(2) relief.
Accordingly, UP&L's Application for Temporary Relief is denied. ~/

~

~~L~,,_/~~

Richard V. Backley, Connnissioner

&~e.ifmni~
L. Clair Nelson, Connnissioner

~/

UP&L also argues that it may seek relief from the modification, by
operation of law, of the original section 104(d)(l) order to a citation
containing special findings. We disagree. This modification operated
to UP&L's benefit, not harm. Therefore, the need to consider temporary
relief from an order that is no longer extant is not apparent. Further,
we express no opinion as to the Secretary's alternative assertion that
temporary relief may be obtained only from unabated orders. Similarly,
we intimate no view at this time as to whether temporary relief may lie
from the effect of special findings contained in section 104(d) orders.

958

Distribution
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Susan E. Chetlin, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D. C. 20.004
Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
280 Colonnade Center
1244 Speer Blvd.
Denver, Colorado 80204

959

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

June 15, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf
of JERRY DALE ALESHIRE, et al.

v.

Docket No. WEVA 84-344-D

WESTMORELAND COAL COMPANY

BEFORE:

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

DECISION

BY THE COMMISSION:

This is a discrimination proceeding brought under section lOS(c)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (1982) (the "Mine Act") by the Secretary of Labor ( 11 Secretary11 )
on behalf of Jerry Dale Aleshire and six other miners (the
11
complainants 11 ) . !/ The issue presented is whether individuals who
obtain safety training while on layoff, on their own time and at their
own expense, are entitled to be compensated for their time and

!/

Section lOS(c) provides in pertinent part:
(1) No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any
miner, representative of miners or applicant for
employment in any coal or other mine subject to this
Act because ••• of the exercise by such miner,
representative of miners or applicant for employment
on behalf of himself or others of any statutory
right afforded by this [Act.]

30 u.s.c. § 815.

960

reimbursed for their expenses by the operator after being rehired.
The Secretary contends that Westmoreland Coal Company
("Westmoreland") violated section 115 of the Mine Act by refusing to
compensate complainants for the time spent in obtaining the training and
by refusing to reimburse them for out-of-pocket costs incurred. ~/
Conunission Administrative Law Judge James Broderick concluded that laidoff individuals are not "miners" entitled to the training rights of
section 115 of the Act, and, therefore, that the complainants are not
entitled to compensation or reimbursement from Westmoreland for the time
and expense of such training. 10 FMSHRC 653 (May 1988)(ALJ). For the
reasons that follow, we affirm the judge's decision.
The facts are not in dispute. On December 17, 1982, the seven
complainants were laid off from their surface mining jobs at
Westmoreland's Ferrell Mine Complex in Boone County, West Virginia. All
of the complainants had been employed at the mine in surface positions
for three or more years prior to December 17, 1982. Each had previously
worked underground prior to working on the surface but, because of the
length of time they had worked as surface miners, six of the seven
needed MSHA-approved underground new miner training before they could
~/

Section 115 of the Mine Act, 30 U.S.C. § 815, requires mine
operators to establish a health and safety training program for every
"miner," which term is defined in section 3(g) of the Act, 30 U.S.C.
§ 802(g), as "any individual working in a coal or other mine." Under
section 115(a) "new miners ... shall receive no less than 40 hours of
training if they are to work underground." 30 U.S.C. § 815(a). In
addition, section 115(b), 30 U.S.C. § 815(b), provides:
Any health and safety training provided under
subsection (a) .•• shall be provided during normal
working hours. Miners shall be paid at their normal
rate of compensation while they take such training,
and new miners shall be paid at their starting rate
when they take the new miner training. If such
training shall be given at a location other than the
normal place of work, miners shall also be
compensated for the additional costs they may incur
in attending such training sessions.
The Secretary has promulgated training and retraining regulations
implementing the requirements of section 115. 30 C.F.R. Part 48. 30
C.F.R. § 48.2(c) defines a "new miner" as "a person who is not an .
experienced miner." 30 C.F.R. § 48.2(b) in part defines an "experienced
miner" as "a person.who is employed as an underground miner on the
effective date of these rules, or a person who has had at least 12
months experience working in an underground mine during the preceding 3
years ••• " The regulations describe the requisite training for each
type of miner. A new miner working underground may not assume his or
her duties until receiving 40 hours of training. 30 C.F.R. § 48.5(a).
The regulations do not refer to laid-off miners or to applicants for
underground mine employment.

961

again work underground. Because the seventh was an experienced
underground miner on October 13, 1978, when 30 C.F.R. Part 48 became
effective, he did not need new miner training to work underground again.
After the complainants were laid off, at least one of them
attended a union meeting where a representative of Westmoreland stated
that laid off miners might improve their chances for recall if they were
to obtain underground new miner training at their own expense while they
were laid off. In May and June 1983, the complainants obtained the
training at the Boone County Career and Technical Center. The
complainants' training was paid for by the Boone County Board of
Education except for two of the complainants, each of whom claims to
have paid $20.
At the time the complainants were trained, Westmoreland and the
United Mine Workers of America (UMWA) were parties to the National
Bituminous Coal Wage Agreement of 1981 (the "Agreement"). Under terms
of the Agreement, miners were to be recalled to work in order of
seniority -- seniority being defined in the Agreement as "length of
service and the ability to step into and perform the work of the job at
the time the job is awarded." Stip. 7. The complainants were recalled
to work in underground positions on October 21, 1983. They would not
have been recalled had they not obtained the underground new miner
training. After they were rehired, they sought reimbursement from
Westmoreland for the cost of the training and compensation for their
time.
When Westmoreland refused to compensate or reimburse them, the
complainants filed a complaint with the Secretary's Mine Safety and
Health Administration ("MSHA") alleging that Westmoreland had
discriminated against them in violation of section 105(c) of the Act by
not providing the training and not compensating them for the time and
expense of obtaining it themselves. Subsequently, the Secretary filed a
complaint of discrimination on the complainants' behalf with the
Commission, making the same allegations and requesting that Westmoreland
be ordered to compensate the complainants for the time they had spent in
obtaining the training and to reimburse those of the complainants who
had incurred costs. The Secretary also requested that Westmoreland be
required to pay interest to the complainants and be assessed a civil
penalty for violating section 105(c).
Both the Secretary and Westmoreland moved for summary decision.
Because section 115 requires operators to provide training to "miners"
and to pay "miners" at their normal rates of compensation while taking
such training, the judge focused first upon the question of whether or
not the complainants were "miners" when they ·obtained the training. The
judge noted that the Commission had concluded in Emery Mining Corp.,
5 FMSHRC 1391, 1396-97 (August 1983), rev'd sub nom. Emery Mining Corp.
v. Secretary of Labor, 783 F.2d 155 (10th Cir. 1986), that an operator
may not refuse to compensate new miners for training undertaken on their
own but relied on by the operator to satisfy MSHA training requirements.
He further noted, however, that the United States Court of Appeals for
the Tenth Circuit reversed the Commission, holding that such individuals
were not "miners" at the time they undertook their prehire training and

962

thus were not covere~ by section 115's requirement for operator paid
training.
The judge rurther observed that, prior to the Tenth Circuit's
decision in Emery the Commission in Peabody Coal Company, 7 FMSHRC 1357
(September 1985) and Jim Walter Resources, 7 FMSHRC 1348 (September
1985), aff'd sub nom. Brock v. Peabody Coal Co., 822 F.2d 1134 (D.C.
Cir. 1987), held that: (1) an operator's policy requiring laid-off
miners to obtain statutorily-mandated new miner training on their own
prior to rehire does not violate section 115 of the Act because laid-off
individuals are not "miners" protected under section 115 until they are
rehired; and (2) an operator who relies on the prehire training of those
whom it rehires to satisfy its statutory training obligations with
respect to "new miners" is required by section 115 of the Act to
reimburse the rehired miners for the expenses of their training.
10 FMSHRC at 657. The judge noted that the United States Court of
Appeals for the District of Columbia Circuit upheld the Commission's
determination in Peabody and Jim Walter that the laid-off individuals
were not "miners" entitled to training under section 115 of the Act,
even though they might have been contractually entitled to reemployment
under a collective bargaining agreement. The judge also noted that the
compensation aspect of the issue now before us was not before the court
for resolution. Id. 11
The judge concluded that nothing required him to go beyond the
Mine Act and its legislative history to determine whether individuals
recalled from layoff are entitled to compensation for section 115
training. He held that individuals on layoff are not "miners" for whom
an operator is required to provide health and safety training, nor are
they entitled to compensation for the time and reimbursement for the
expense of training taken on their own. 10 FMSHRC at 658.
We granted the Secretary's petition for discretionary review. The
Secretary asserts that the judge erred in concluding that the
complainants were not entitled to compensation for the time and
reimbursement for the expens~s of their training and she argues that the
Commission's decisions in Peabody and Jim Walter resolve the issue.
Westmoreland responds that the rationale of the Tenth Circuit's decision
in Emery applies to miners rehired from layoff as well as to newly hired
miners. We agree with Westmoreland.
Section 115 grants training rights to "new miners" and "miners."
As noted, the Commission has held that because job applicants and
individuals on layoff who obtain training prior to hire are not
"miners," as defined by section 3(g) of the Act, they have no statutory
right to training. Emery, 5 FMSHRC at 1395-96; Peabody, 7 FMSHRC at
1363; Jim Walter, 7 FMSHRC at 1354. This holding has been upheld by the
courts. Emery, 783 F.2d at 158-159; Peabody, 822 F.2d at 1148-1149.

11

In Peabody the operator compensated the rehired miners for the
training they obtained on their own. In Jim Walter, the operator did
not appeal the Commission's compensation order. See Brock v. Peabody
Coal Co., supra, 822 F.2d at 1136 n.3.

963

As the judge noted, the Tenth Circuit rejected the Commission's
conclusion that an operator who relies upon the prehire training of
newly hired miners to satisfy its statutory training obligations must
reimburse the miners for their training expenses. In deciding whether
newly hired miners are entitled to compensation, the Tenth Circuit found
their status at the time they were trained to be conclusive. If they
are not "miners" when they take the training they are not entitled to
compensation from the operator: "[n]othing in the Act or the legislative
history suggests that a new employee must be paid wages and expenses for
the time spent in a course he voluntarily took prior to the time he was
employed." Emery, 783 F.2d at 159.
The Secretary would have us distinguish the Tenth Circuit's
decision in Emery on the basis that the complainants in this case,
unlike the newly hired miners in Emery, have had "an established
relationship with Westmoreland" through their contractual recall rights
under the Agreement. Sec. Pet. for Discretionary Review at 6. The
Commission has previously rejected similar arguments. The Commission
stated in Peabody and Jim Walter that the Mine Act is a health and
safety statute, not an employment statute. 7 FMSHRC at 1364; 7 FMSHRC
at 1354. ·As the D.C. Circuit stated, "[w]e certainly cannot infer from
the Act that Congress intended privately-bargained contracts to
determine who is and who is not entitled to receive section 115
training •••• [I]t would be peculiar in the extreme for us to import a
contractual criterion to determine who is entitled to training when the
Congress has explicitly considered the question and decreed a statutory
criterion." Peabody, 822 F.2d at 1148. The court added that "an
individual is not a 'miner' who can claim a training right under section
115(a) unless he or she is employed in a mine." Peabody, 822 F.2d at
1149 (footnote omitted). We therefore find no persuasive basis upon
which to distinguish this case from the Tenth Circuit's decision in
Emery and in the absence of contrary judicial precedent we will follow
that decision.

964

Accordingly, we hold that because the claimants were not "miners"
under the Act at the time they undertook training, they were not granted
training rights by section 115 and were not entitled to be compensated
by Westmoreland for such training. We therefore affirm the decision of
the judge.

~~;~4;
-~

.

~-t-~

Richard V. Backley, Commissioner

<ls;:1!Toy1(~l!:tt6=
James A. Lastowka, Commissioner

@~'7Uc~'-1v
L. Clair Nelson, Commissioner
Distribution
F. Thomas Rubenstein, Esq.
Westmoreland Coal Company
P.O. Drawer A & B
Big Stone Gap, Virginia 24219
Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Mary Lu Jordan, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

965

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

20006

June 27, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. VA 87-27

CONSOLIDATION COAL COMPANY

BEFORE:

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

BY:

Ford, Chairman; Backley, Doyle and Nelson, Commissioners

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"), the issue before us is whether Consolidation Coal Company
("Consol") violated 30 C.F.R. § 50.20(a),a standard that requires
reporting lost work days resulting from occupational injuries. l/ In

ll

30 C.F.R. § 50.20(a) states in part:
Each operator shall maintain at the mine off ice a
supply of MSHA Mine Accident, Injury, and Illness
Report Form 7000-1 ••.• 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§§ 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 occurs or an occupational illness is

966

lieu of a hearing, the parties submitted the case for decision on the
basis of the written record. Commission Administrative Law Judge James
A. Broderick granted the Secretary's motion for summary decision,
holding that Consol violated the standard. The judge assessed a civil
penalty of $200. 10 FMSHRC 560 (April 1988)(ALJ). We granted Consol's
petition for discretionary review. Because we hold that substantial
evidence does not support the judge's finding of a violation, we
reverse.
Consol owns and operates the Buchanan No. 1 mine, an underground
coal mine located on Keen Mountain, Buchanan County, Virginia. Timothy
Smith, the miner whose injury gave rise to the allegation of violation,
had been employed at the mine since June 24, 1986, as a general inside
laborer on the midnight to 8 a.m. shift. Smith's usual duties included
building cribbing, loading conveyor belts, shoveling belts and loading
cable. ~/ At about 1:45 a.m., on the morning of August 25, 1986, Smith
was setting timbers for cribbing in the 2 West left return when his
right hand was caught between two timbers. Smith's fellow worker
escorted him to the service shaft where he was met by the shift foreman,
who took him to the surface. After observing that Smith's hand was
swollen and the nail on the right thumb was smashed, the foreman ordered
that Smith be driven to Buchanan General Hospital in Grundy, Virginia, a
distance of 15 or 20 miles, requiring about 30 minutes' travel time.
At the hospital, Smith was examined by Dr. Yusuf Chanbhry, whose
report listed the injury as a "Fracture (R) Hand 5th Finger." JX-4.
The report also stated that Smith could return to "light work" by
September 1, 1986, and to "regular work" on September 15, 1986. Id.
The doctor placed a splint on the finger and referred Smith to an
orthopedist, Dr. L. Bendigo, in Richlands, Virginia.
Smith was driven from the hospital back to the mine, arr1v1ng
there shortly before 5 a.m., and was told by the shift foreman that he
could go home. Smith, however, had to wait until the end of the shift
for a ride home. Smith left the mine at about 8:45 a.m., and arrived at
his home in North Tazwell, Virginia, at about 9:30 a.m. He then
telephoned Dr. Bendigo's office, obtained a 2:00 p.m. appointment, and
was told to get an x-ray by 1:00 p.m.
diagnosed.
30 C.F.R. § 50.2(e) defines "occupational injury" as:
[A]ny 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 duties, or
transfer to another job.
~/
The facts relevant to Smith's 1nJury and subsequent absence from
work are based, except as indicated, upon Smith's deposition testimony
under questioning by counsel for the Secretary.

967

Smith slept for "a few hours," got up about noon, and made the
30 minute drive to Richlands, Virginia, for an x-ray, after which he was
seen by Dr. Bendigo, at about 3:00 p.m. Dr. Bendigo's report diagnosed
the injury as a fracture of the right 5th finger and subungual hematoma
of the right thumb. JX-4. Dr. Bendigo aspirated the thumb, drilling
two small holes in the nail to relieve the discomfort, and fitted a hard
cast to the palm of Smith's hand and arm. The cast covered Smith's
third and fourth fingers, extending from the base of the thumb up the
right arm to within about three inches of the elbow. Smith was also
fitted with an arm sling and given a prescription for an analgesic,
which he had filled that same afternoon. Smith took only two of the
tablets, and never returned to the doctor, removing the cast himself
several weeks later.
Smith arrived home about 5:00 p.m. and ate dinner "around 6:00 or
7:00 p.m." Dep. 19. He stated that he normally left home for work "a
little after 10:00 p.m., and would arrive at the mine "around 11:00 or
about 15 after 11:00." Dep. 20. Smith stated that because he "hadn't
been in bed very much" he decided, while eating dinner, that he would
just call in and tell them I wouldn't be in." Dep. 19. 3/ When Smith
was unable to reach Roy Duty, the shift foreman, at Duty1 s home, to
advise him that he would not be coming to work, he called utility
foreman Kenny Maxfield at home, telling him he wouldn't be in to work
that night. Maxfield replied: "O.K." Dep. 20. Smith testified that
he gave no explanation to Maxfield as to why he would not work his shift
telling Maxfield that he "was going to take a Consol day." Smith did
not offer Maxfield any further explanation because "I didn't think there
was any need to, because they said we could take two days when we wanted
them." !!_/ Dep. 23.
Smith explained why he decided to take a "Consol day" in the
following exchange with counsel for the Secretary:

Q.
Why did you decide to take a Consol day?
Why didn't you go to work that night?
}/
In response to questioning by counsel for the operator, Smith
stated he normally got about seven hours sleep between shifts, but on
the evening in question, while eating dinner, he had decided "I was
comfortable at home, and decided I'd stay there." Dep. 38.
!!_/
Smith described a "Consol day" as two days per year given to
employees, in addition to other holiday or vacation days, to be taken by
an employee as desired, for any personal reason, including illness,
subject only to the personnel requirements of Consol for the particular
shift missed. Dep. 21-26, 36-38. Mine Superintendent Joseph Amar, in
his Affidavit, described "Consol days" as two paid days per calendar·
year, taken at the discretion and prerogative of the employee that can
be requested at any time by the employee, subject to the "sufficiency of
manpower that exists on the shift the employee expects to miss." Amar
stated that there is no requirement that the request be in writing or
that it be submitted "within a certain amount of time prior to an
employee's request." Affidavit 1-2.

968

A.
Well, I hadn't had much sleep, and I just
felt like, you know -- I don't like working, without
having the amount of sleep that I like to have.

Q.

Did you feel that you could safely work?

A.
Yeah. I could have worked. I mean I've
went in to work with a lot less sleep.
Dep. 22.
On his return to work the next day, Smith told Roy Duty that he
had not had much sleep and since he had two days that he had to use
sometime, he had decided to take the day off. When asked by Duty if he
could have come to work, Smith replied, "Yes." Dep. 23, 31.
On September 2, 1986, Consol's mine safety inspector, Richard
French, filed with MSHA a Mine Accident, Injury and Illness Report Form
7000-1, reporting Smith's occupational injury. The form indicated "O"
as the "Number of Days Away from work" after the injury. 5/ As
required, a copy of the form was kept at the mine office. See 30 C.F.R.
§ 50.20-1; JX-2.
During April 1987, MSHA Inspectors Kenneth Shortridge and Ronald
Blankenship conducted an audit at the Buchanan No. 1 mine of all the
Forms 7000-1 filed by Consol in order to review Consol's compliance with
Part 50. In reviewing the form filed for Smith's accident, Shortridge
noticed that Smith had not worked the shift following the injury.
Shortridge stated that when he asked why Smith did not work on the shift
following the inJury, he was told that Smith "hadn't had his sleep" and
had asked for and was granted the next day off. Dep. 21. £/

21

30 C.F.R. §§ 50.20-1 through 50.20-7 list the instructions and
criteria for completing MSHA Form 7000-1. With regard to Item 30 on
Form 7000-1, number of days away from work, section 50.20-7(c) states:
Item 30. Number of days away from work. Enter
the number of workdays, consecutive or not, on which
the miner would have worked but could not because of
occupational injury or occupational illness. The
number of days away from work shall not include the
day of injury or onset of illness or any days on
which the miner would not have worked even though
able to work. If an employee loses a day from work
solely because of the unavailability of professional
medical personnel for initial observation or
treatment and not as a direct consequence of the
injury or illness, the day should not be counted as
a day away from work.

£/

Under questioning by counsel for Consol, Shortridge stated that he
had not interviewed Smith at the time of the audit and had not talked
with him since that time. Dep. 10. Shortridge also stated he had not

969

In December 1986, MSHA had issued instructional guidelines for
completing_ MSHA Form 7000-1. Zf The 1986 guideliries replaced guidelines
issued by MSHA in 1980. Shortridge stated that he used the 1986
guidelines in conducting the Part 50 audit at the mine. Dep. 12.
Shortridge also stated that, as he interpreted the 1986 guidelines for
determining the number of days away from work, only if an employee had
"pre-arranged" a day off prior to the occurrence of an injury could the
employee's absence not be counted as a lost-time accident. Id. ~/
reviewed any of the medical reports on Smith's injury.

Zf

The 1986 instructional guidelines are contained in MSHA Report on
30 C.F.R. Part 50. The guidelines for determining the number of lost
workdays to be indicated in Item 30 of form 7000-1 state:
Item 30: Enter the number of workdays, consecutive
or not, that the employee would have worked but
could not because of the occupational injury or
illness. The number of days away from work should
not include the day of injury or onset of illness or
any days that the employee would not have worked
even though able to work. If an employee loses a
day from work solely because of the unavailability
of professional medical personnel for initial
observation or treatment and not as a direct
consequence of the injury or illness, the day should
not be counted as a day away from work. If an
employee, who is scheduled to work Monday through
Friday, is injured on Friday and returns to work on
Monday, the case does not involve any "Days Away
From Work" even if the employee was unable to work
on Saturday or Sunday. If this same employee had
been scheduled to work on Saturday, even if that
Saturday constituted overtime, the Saturday would be
counted in the "Days Away From Work", and the case
would be classified as Lost Workday Case. [An
injured or ill employee cannot avoid accumulating
lost workdays by being placed on vacation or
personal leave. If the employee had been scheduled
to work, the days the employee lost due to his or
her injury or illness would be counted as lost
workdays.] Do not include in the lost workday count
holidays or any days on which the mine was not
operating for any reasons.
(Emphasis in original). JX-7, p.7. The two sentences within the
brackets were not contained in the 1980 guidelines. The rest of the
paragraph is essentially the same.

'E..f

The 1986 guidelines also state that "If the employee had been
scheduled to work, the days the employee lost due to his or her injury
•.. would be counted as lost workdays." The preceding sentence states
that an injured employee "cannot avoid accumulating lost work days by
being placed on vacation or personal leave." This restriction has no

970

Based on his conversations with Consol's management and his
interpretation of the guidelines, Shortridge concluded that Smith's
accident and consequent loss of sleep "indirectly" caused him to miss a
d~y' s work. Dep·. 21-22. Therefore, Shortridge issued to Consol a
citation charging a violation of section 50.20(a), which states:
An inaccurate mine accident, injury and illness
report, Form 7000-1 was submitted to MSHA concerning
an accident on 8/25/86 that injured Timothy W. Smith
which resulted in one lost workday. The accident
was reported as no lost workdays.
This citation was issued as the result of a Part 50
audit.
In support of her motion for summary decision, the Secretary
argued that Smith's absence was caused by his lack of sleep due to the
time spent seeking medical treatment for his injury and that his absence
was required to be reported as a lost workday. Br. 9. Consol contended
that Smith's decision not to work was entirely voluntary.
The judge upheld the violation, finding that, as a result of a
significant injury to his hand, Smith had to receive initial and
specialized medical treatment which resulted in his being awake "during
nearly all of the period he usually slept." 9 FMSHRC at 563. The judge
found Smith's opinion that he could have worked, but chose not to do so,
"of some significance" but "not conclusive." Id. He further found "not
determinative, or even relevant," the fact thatboth Smith and Consol
regarded the day off as a "Consol day." Id. The judge concluded that
"the lost work day resulted from a loss ofs1eep, which resulted from
the necessary medical care which resulted from the injury," and that it
should have been reported as a day away from work because of the injury.
Id.
On review, Consol argues that Smith's decision not to work was
entirely voluntary and uninfluenced by management, and that his
testimony demonstrates that he was able to work the next shift had he so
desired. The Secretary argues that the judge's decision is supported by
substantial evidence of record and that Consol violated section 50.20 by
failing to report Smith's absence as a lost workday.
Section 50.20(a) requires each operator to "report each accident
[or] occupational injury at the mine ... in accordance with the
instructions and criteria of§§ 50.20-1 through 50.20-7." Section
50.20-7(c) requires the operator to "[e]nter the number of workdays
on which the miner would have worked but could not because of
bearing on the "direct consequence" relationship that must be
established between an injury and a lost workday (see p.7 infra)~ but we
note that it might cloud .the issues in this case if read in isolation.
In any event, we need not consider in this case the effect of this
restriction on lost work days reporting since the challenged report by
Consol was made and submitted several months before the 1986 guidelines
were issued.

971

occupational.injury." Thus, the question before the judge was whether
Smith's absence from work on the day following the injury constituted a
day away from work because of the occupational injury. The judge
concluded that it was. The question before us on review is whether
substantial evidence supports this conclusion.
In resolving the question, we first look to the language of the
Secretary's regulations to determine what constitutes a "lost workday"
reportable on MSHA Form 7000-1. 30 C.F.R. § 50.1 explains that the
purpose of requiring operators to maintain and file with MSHA reports of
occupational injuries is to implement MSHA's authority "to investigate
and to obtain and utilize information pertaining to accidents, injuries
and illness occurring or originating in mines." Specifically as to
"days away from work," section 50.1 states: "MSHA will develop data
respecting injury severity using days away from work activity .•• as
criteria." Under section 50.20-7(c), an operator is required to report
as "days away from work" the number of workdays on which the miner
"would have worked but could not because of occupational injury." The
last sentence of section 50.20-7(c) provides that a lost workday should
not be counted if it is.not "a direct consequence of the injury or
illness" and specifically excludes days lost solely because of the
unavailability of medical personnel for initial observation or
.
treatment. This exclusion recognizes that the unavailability of medical
treatment is not a "direct consequence" of an injury and that it does
not reflect the severity of the injury involved, MSHA's stated concern
under this regulation. In other words, MSHA recognizes that other
factors may result in lost work days, apart from the severity of the
injury. Similarly, where, as here, the scheduling of medical treatment
results in loss of sleep, such an event bears no relationship to the
severity of the injury involved and is tantamount to another form of
unavailability of medical treatment.
The Secretary's instructional guidelines also empha.size that there
must be a direct cause and effect relationship between the "days away
from work" reported under Item 30, and the inability of the injured
miner to work as the result of an occupational injury. Under both the
1980 and 1986 guidelines, the operator is instructed to "Enter the
number of work days ••. that the employee would have worked but could
not because of the occupational injury." (Emphasis in original.) Both
guidelines reiterate that, if the lost workday is not the "direct
consequence of the injury or illness, the day should not be counted as a
day away from work." JX 7, p.7.
We find no basis either in the Secretary's regulations or
guidelines to support a conclusion that, absent a direct cause and
effect relationship between an injury and a lost workday, an employee's
failure to work_following an injury necessarily constitutes a reportable
day away from work. Thus, to establish a violation, the Secretary must
prove that such a connection exists, i.e., that the lost workday is the
direct consequence of the injured miner's inability to work as the
result of the injury. In the case at hand, this means that in order to
establish the alleged violation of section 50.20(a), the Secretary must
establish that Smith "would have worked but could not because· of
occupational injury." 30 C.F.R. § 50.20-7(c).

972

The judge found a violation of section 50.20(a) based on his
conclusion that the lost workday resulted from the loss of sleep caused
by the time and travel involved in receiving necessary medical treatment
for the injury. 9 FMSHRC at 563. We agree with the judge that Smith's
injury required treatment that, because of the appointment time,
resulted in a loss of sleep. We find, however, that the record does not
support a conclusion that because of the loss of sleep, Smith could not
work the next day.
Smith's own words weigh heavily against such a finding. When
asked by counsel for the Secretary why he decided to take a Consol day
following the accident, Smith replied that, while he "had not had much
sleep," he "just didn't feel like going to work that day." Dep. 22, 23.
When asked by counsel the critical question of whether he could have
worked safely the day following the accident, Smith replied "Yeah. I
could have worked" and then voluntarily added "I've went into work with
a lot less sleep." Dep. 22. In addition, Smith stated that when he was
later asked by Consol's mine safety inspector Richard French whether he
could have worked the day following the accident, he answered "yes," and
when asked by counsel for the Secretary whether he had told management
personnel that the had been "up all day" and was having "some pain and
•.. had taken medication," Smith stated that he could not recall having
said that. Dep. 31, 33-34.
Smith's unrebutted testimony, rather than establishing that
because of the injury and related loss of sleep he could not have worked
the next day, establishes that he considered himself capable of working
safely. The sole evidence with respect to Smith's loss of sleep and its
effect on his ability to work the next shift was that of Smith himself.
A fair summary of his testimony is that although he could have worked,
he decided that, rather than work, he would use one of the two Consol
days available to him. Dep. 22. 9/
The Mine Act imposes on the Secretary, in a civil penalty
proceeding, the burden of proving the violation alleged by a
preponderance of the evidence, and imposes a substantial evidence test
for Commission review. See 30 U.S.C. § 823(d)(2); Secretary of Labor v.
Kenny Richardson, 3 FMSHRC 8, 12 n.7 (January 1981). Here, the
Secretary chose to bring her case, and the judge's decision rests, not
on the severity of Smith's occupational injury, or the difficulty of
performing his regularly assigned duties because of that injury, but on
the loss of sleep incurred in receiving medical treatment as a result of
the injury. To prove her case, the Secretary was required to establish
that as the result of his loss of sleep, Smith could not have worked the

21

Smith testified that he was away from home obtaining medical
treatment for a total of four to five hours during the thirteen-hour
period between his arrival home from work and his usual time of
departure back to the mine sometime after 10:00 p.m. Although he was
obviously inconvenienced as to his normal routine, had he not decided
early in the evening to stay home, the actual time available to him for
rest would not have been significantly less than his usual seven-hour
period.

973

next shift. ·As we have noted, the sole witness on this dispositive
issue was Smith himself who testified that, although he had not gotten
his usual amount of sleep, he could have safely worked his next shift,
and who voluntarily reinforced that opinion by stating he had worked
previously "with a lot less sleep." If Smith did not mean to say what
he clearly said, the Secretary had full opportunity while deposing Smith
to correct the record, but did not do so. Nor do we find any record
inference or evidence to suggest that Smith's decision not to work, or
his testimony at deposition, was motivated by concern for his job or by
any other inducement on the part of management. Having produced no
probative evidence to overcome Smith's assertions that he could have
worked despite his loss of sleep, we conclude that the Secretary has
failed to meet the requisite burden of proof necessary to establish the
alleged violation.
The substantial evidence standard of review requires a weighing of
all probative record evidence and an examination of the fact finder's
rationale in arriving at the decision. See Universal Camera Corp. v.
NLRB, 30 U.S. 474 (1951);· Arnold v. Secretary of HEW, 567 F.2d 258, 259
(4th Cir. 1977). Judges must sufficiently summarize, analyze and weigh
the relevant testimony of record, and explain their reasons for arriving
at their decision. See Secretary v. Michael Brunson, 10 FMSHRC 594 (May
1988), Bjes v. Consolidation Coal Co., 6 FMSHRC 1411 (June 1984),
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981). Here,
the judge summarily dismissed without explanation as "not conclusive"
Smith's testimony that he could have worked and he ignored Smith's
statements that he could have worked safely, that he had done so in the
past on less sleep, and that he had told his shift foreman that he could
have worked. While the judge found that the lost workday resulted from
loss of sleep, there is no evidence in this record that Smith's loss of
sleep prevented him from being able to work safely the day after his
1nJury. Smith stated unequivocally that he could have worked safely and
his testimony is the entire evidence of record on this issue. While we
have previously stated that we do not lightly overturn a judge's factual
findings and credibility resolutions, neither will we affirm such
findings if there is no evidence or dubious evidence to support them.
See~· Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th
Cir. 1984); Midwest Stock Exchange, Inc. v. NLRB 635 F.2d 1255, 1263
(7th Cir. 1980).

974

Accordingly, and for the foregoing reasons, we find that the
judge's decision is not supported by the substantial evidence of record
and we reverse.

975

Commissioner Lastowka, dissenting:
While performing his duties as a general inside laborer at Consolidation
Coal Company's Buchanan No. 1 Mine, Timothy Smith suffered a fractured finger
when his right hand was caught between two timbers being set as roof support.
Because Smith worked on the midnight to 8:00 a.m. shift, the medical treatment
necessitated by his injury was administered during. the period of his daily
routine normally devoted to sleep. As a result, Smith, with notice to Consol,
stayed home rather than reporting to work for his next scheduled shift.
My colleagues conclude that the administrative law judge erred in upholding
the Secretary of Labor's assertion that Consol's failure to report Smith's
absence as a lost workday resulting from his injury violated the Secretary's
accident and injury reporting regulations.
They conclude that the judge's
finding that Smith's absence occurred because of his injury is not supported by
substantial evidence. Instead, they conclude that a "direct cause and effect
relationship between (the] injury and (the] lost workday" was not established
by the Secretary. Slip op. at 7.
I must respectfully disagree. In my opinion, the Secretary's interpretation
of her regulation concerning the reporting of accidents and injuries is
reasonable and deserving of weight. Secretary on behalf of Bushnell v. Cannelton
Industries, 867 F. 2d 1432 (D.C. Cir., 1989).
Furthermore, the judge's
application of the law to the facts not only is supported by substantial
evidence, but also is eminently sensible. Therefore, the judge's opinion should
be affirmed.
The dispute in this case is not over whether Smith suffered an occupational
injury; Consol duly reported Smith's injury to the Secretary. Instead, the issue
is whether in reporting the injury Consol accurately represented that the injury
had not resulted in a lost workday.
It seems to me that the material facts
establish, on their face, that Smith's injury resulted in a lost workday, to
wit: while performing his job Smith's hand was caught between two timbers; upon
"observing that Smith's hand was swollen and the nail on the right thumb was
smashed," Smith's foreman sent him to the hospital (slip op. at 2); Smith's
injury was diagnosed as a ''Fracture (R) Hand 5th Finger" (Exh. JX-4); the
hospital report recommended a return to light work in one week and a return to
regular work in three weeks (Id. ) ; later that same day, Smith's hand was x-rayed
confirming a fracture of his little finger, his thumbnail was aspirated, his arm
placed in a cast from his hand to within three inches of the elbow, and pain
medication prescribed {10 FMSHRC at 561); since Smith worked the midnight to 8: 00
a.m. shift this medical treatment was administered during the time of day he
normally slept; therefore, following his injury Smith stayed home from work for
one scheduled shif't by invoking his right to a day of personal leave. 10 FMSHRC
at 562. {Consol does not provide sick leave and Smith had not yet earned any
vacation time. Id.)
On these facts, I believe that it certainly was reasonable for the Secretary
to insist, and for the judge to find, that Consol should have reported Smith's
absence as a lost workday caused by his accident.
The majority concludes
otherwise, however, and their rationale must therefore be examined. As discussed
below, I find the grounds relied on for reversal unconvincing.

976

The violation in this case turns on whether Item 30 on MSHA Form 7000-1 was
correctly completed. Item 30 provides: "Number of Days Away From Work {if none,
enter 0)," As previously indicated, Consol represented that Smith was away from
work "O" days despite his absence on the day following his injury.
My
colleagues base their rejection of the Secretary's and the judge's determinations
that Smith's one day absence should have been indicated in item 30 on their
interpretation of 30 C.F.R. § 50.20-7(c), which sets forth "criteria" for
c~mpleting item 30.
This section provides:
Item 30. Number of days away from work.
Enter the number of
workdays, consecutive or not, on which the miner would have worked
but could not because of occupational in.iury or occupational
illness. The number of days away from work shall not include the
day of injury or onset of illness or any days on which the miner
If an employee
would not have worked even though able to work.
loses a day from work solely because of the unavailability of
professional medical personnel for initial observation or treatment
and not as a direct consequence of the in.iury or illness, the day
should not be counted as a day away from work.
(Emphasis added).
Al though the majority concludes that the emphasized portion of these
instructions proves fatal to the Secretary's charge of violation, I submit that
their conclusion stems from a too narrow reading of the Secretary's reporting
requirements and a shortsighted view of the facts. Reduced to its essence, the
majority's position is that Smith's absence on the day following his injury was
not di.!<~ to his injury, but rather to a lack of sleep, and that even given his
loss of sleep Smith still "could" have worked. In their view, Smith's lack of
sleep is an intervening event interrupting the "direct cause and effect
relationship between an injury and a lost workday" that is the intended focus
of item 30, Slip op. at 7. Thus, in their view, the Secretary did not prove
"that the lost workday [was] the direct consequence of the injured miner's
inability to work as the result of the injury." Id.
On the basis of the record before us, I would find, as did the Secretary
and the judge, that Smith's absence was a direct consequence of his injury. In
fact, no reason or motivation for his absence other than his injury is even
remotely suggested or alluded to in the record. My colleagues downplay and
diminish the impact of the disruption in Smith's daily routine caused by his
injury and medical treatment (see, e.g., slip op. at 8 n.9), but this view
proves too grudging. To make the point, I must ask: if one of my colleagues
were to suffer a simil~r injury on the job and found it necessary to spend the
night obtaining necessary medical treatment, would they not be surprised to have
their absence from work on the followin~ day challenged on the ground that it
was not caused by their work-related injury?
Insofar as Smith's statement that he "could have worked" is concerned, I
believe that the judge's assessment that this remark ''is of some significance,
but is not conclusive" (10 FMSHRC at 563), is closer to the mark than is the
majority's view that it proves fatal to the Secretary's case. Smith himself

977

explained that he wondered why he was being asked this question.
Smith
deposition at 31; 10 FMSHRC at 562 , Furthermore, in purely literal terms,
Smith's response is probably true; despite his injury and lack of sleep, it was
physically possible for him to report to work. I doubt, however, that the "could
not work" phraseology in the Secretary's instructional criteria was meant to be
read that an injured miner must be totally incapacitated before any resulting
"day away from work" must be reported. Such a constrained reading would mean
that only the most debilitating injuries absolutely precluding a miner's arrival
at the job site would be reportable under item 30. Nothing in the Secretary's
regulations, instructions or Form 7000-1 suggests that such a narrow scope was
intended, and the Secretary disavows this reading of her requirements. Instead,
a reasonable reading must be given to this safety and heal th regulation and under
such a reading, and the facts before us, the view that Smith could not work his
next shift due to his injury certainly is plausible. Secretary v. Cannelton
Industries, supra, 867 F. 2d at 1435, 1438.
My colleagues acknowledge that they are bound by the substantial evidence
standard of review.
Slip op. at 9; 30 U.S.C. §823(d)(2)(a)(ii)(I).
They
nevertheless proceed to substitute their finding as to whether Smith "could"
work for that of the judge by claiming that "there is no evidence" to support
the judge's finding that Smith's lost workday resulted from the loss of sleep
caused by his injury. Slip op. at 9 (emphasis in original). Contrary to this
assessment, however, ample support for the judge's finding is found in the
extensive record evidence describing Smith's injury, the nature of the medical
treatment necessitated by the injury and the major disruption in Smith's daily
routine caused by the injury and its treatment. Smith's statement that he could
have worked, viewed by the majority as ''the entire evidence of record on this
issue'' (Slip op. at 9), was correctly viewed by the judge as only part of the
record evidence bearing on the factual question before him. Because the evidence
relied on by the judge constitutes "such relevant evidence as a reasonable mind
might accept as adequate to support [the judge's] conclusion", the substantial
evidence standard imposed on us by the Mine Act requires aff irmance of the
judge's finding.
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938);
Chaney Creek Coal Corp. v. FMSHRC, 866 F. 2d 1424, 1431 (D.C. Cir. 1989).
In the end, the soundness of the judge's conclusion is perhaps most
effectively demonstrated by setting forth his own words. As he stated:
The facts in this case are clear and uncomplicated.
A miner
received a significant injury to his hand at work. He was given
initial medical treatment and referred for specialist treatment.
As a result of the referral, he was awake during nearly all of the
period when he usually slept. In fact, he slept for about one and
a half hours. Because of his lack of sleep, he decided to take the
following day off, although he testified that he could have worked.
The employee's op1n1on that he could have worked is of some
significance, but is not conclusive. In fact he did not work, and
his failure to work is related to the injury because it is related
to the meJical treatment which was necessary because of the injury.
I concluJe that the employee's absence from work on August 26, 1986,
resulted from his occupational injury on August 25, 1986. ****

978

Consol seems to argue that the day away from work resulted from the
unavailability of professional medical personnel for initial
observation and treatment and therefore should not be recorded as
a day away from work resulting from the occupational injury. I do
not so interpret the facts.
Professional medical personnel were
available for initial observation and treatment. Whether or not the
referral to the orthopedist was part of the initial observation and
treatment, the lost workday did not result from the unavailability
of the orthopedist. The orthopedist was available. The lost work
day resulted from the time spent receiving treatment and diagnosis,
including necessary trave 1, all of which resulted in a loss of
sleep. Therefore, I conclude that the lost workday resulted from
the loss of sleep, which resulted from the necessary medical care
which resulted from the injury. It should have been reported as a
day away from work because of the inJury. The citation properly
charged a violation of 30 C.F.R. § 50.20(a).
10 FMSHRC at 563.

I believe that this analysis by the judge reflects a reasonable
interpretation of the reporting requirement and arrives at a conclusion
supported by substantial evidence of record. Accordingly, I dissent from the
reve~sal of the administrative law judge.
I would affirm Judge Broderick's
finding of a violation.

Lastowka
Commissioner

979

Distribution
Dennis D. Clark, Esq.
Vicki Sh.teir Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Michael R. Peelish, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Administrative Law Judge James A. Broderick
Federal Mine Safety and Health Review Commission
5203 Leesb.urg Pike, SuitelOOO
Falls Church; Virginia 22041

980

ADMINISTRATIVE LAW JUDGE DECISIONS

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

22041

JUN 2 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF ROBERT VAUGHN,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 89-28-D

v.
SUMCO, INC. AND R.E. SUMMERS,
Respondents
DECISION
Appearances:

Before:

Mary K. Spencer, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
on behalf of Complainant; Rodney E. Buttermore,
Jr., Esq., Forester, Buttermore, Turner & Lawson,
Harlan, Kentucky, on behalf of Respondents.

Judge Broderick

STATEMENT OF THE CASE
On November 18, 1988, the Secretary of Labor (Secretary)
filed a complaint on behalf of Robert Vaughn under section 105(c)
of the Federal Mine Safety and Health Act of 1977 (the Act). The
complaint alleges that Vaughn was discharged on June 30, 1988,
for activity protected under the Act. In addition to the
complaint, the Secretary filed an Application for Temporary
Reinstatement. On November 28, 1988, I issued an order directing
Respondent Sumco, Inc. to immediately reinstate Vaughn to the
position from which he was discharged or to an equivalent
position. On December 16, 1988, Respondent Sumco filed a answer
to the complaint and a request for hearing. Pursuant to notice
the case was called for hearing in Harlan, Kentucky on March 21,
1989. Robert Vaughn, Richard Davis, Ronnie Brock, George Vaughn,
and Winston Madden testified on behalf of Complainant. Robert
Earl Summers and Dianne Swanner testified on behalf of
Respondents. Both parties have filed post hearing briefs. I
have considered the entire record and the contentions of the
parties and make the following decision.

981

FINDINGS OF FACT
Respondent R.E. Summers incorporated Sumco, Inc. some time
in 1975. The operation involved in this proceeding commenced in
January 1988. Summers assumed that the corporation was valid and
continuing.
In fact it was not, because it had failed to pay
certain state fees. Legally, Summers was operating as an
individual proprietor. The work consisted of reclaiming coal
from an existing refuse pile, by removing slate and other waste,
and washing and crushing the coal. The actual coal preparation
work commenced about February 1, 1988. Approximately 15 miners
were employed in the operation.
Complainant Robert Vaughn began working for Sumco on
February 10, 1988, as a night watchman at the mine site. On or
about May 9, 1988, he was transferred to a job as slate picker,
working on the afternoon shift. He was paid $4.00 an hour. His
duties involved removing slate and rock from the refuse on a
picking table and throwing it into a hole at the end of the table.
Robert Vaughn had not received any surface mine safety training
prior to beginning this job, but in 1984 he had received
inexperienced new miner training for underground mines.
Shortly after it began to operate the coal reclamation
project, Sumco engaged a Mr. Arnold Gilbert who was to perform
noise and dust monitoring and to set up a training plan for the
employees. He contacted the Harlan Vocational School to conduct
safety training classes, but was unable to arrange a program
until about August 1, 1988.
On or about June 8, 1988, complainant Vaughn injured his
thumb in a fall at home. He was treated in a hospital emergency
room and a splint was placed on his thumb. He was excused from
work because of the injury. During the time he was off work, he
was called to jury duty. On June 22, 1988, while still under
treatment for his thumb, he visited the mine site after returning
from jury duty. The mine site was near his residence, and he
rode to the mine with a truck driver. Two federal inspectors
were at the mine at this time. Summers saw Vaughn and ordered
him off the mine property. Vaughn testified that he was told to
leave because the inspectors "were checking mining training
papers."
(Tr. 14) Summers testified that he told him to leave
because he was in the loading area without a hard hat or hard
toed shoes.
Summers admitted that he "possibly told him they
[the inspectors] were there checking papers."
(Tr. 113). I find
as a fact that Summers directed Vaughn to leave the mine sit.:
because he was not properly attired and because the Federal
inspectors were checking the miners' training papers. On
June 23, 1988, a citation was issued to Sumco for failure to
submit a training plan to MSHA. The citation was terminated the

982

same date when a plan (prepared by Arnold Gilbert) was submitted.
The training was to commence in August.
Before the training
began, citations were issued to Sumco, because some of the miners
did not have up-to-date safety training papers.
On June 27 or 28, Vaughn took a medical record indicating
that he could return to work on June 28 to the mine and asked
Summers if he could resume work. Summers told him he could
return the following day. Vaughn later realized he had jury duty
the following day and he called Summers at home. He was directed
to return on June 30. Vaughn did so, bringing with him another
doctor's certificate, authorizing his return to work June 28,
1988. There is a dispute as to whether his thumb was still in a
splint. I find that it was not. Summers told Vaughn to report
for work the following Monday. Vaughn asked whether he would
receive the 70 cent per hour premium that others received on the
evening shift.
Summers rejected the request and there was a
heated discussion between the two concerning the request and the
fairness of paying Vaughn less than the other miners. Finally,
Summers told Vaughn to go on home "since he didn't have any
training and he still had his thumb in a cast."
( GX5). Vaughn.
left the off ice and was told to leave his hard hat which he threw
back in through the door.
Summers testified that the reference
to training in his statement to the MSHA investigator CGXS) meant
work experience and not safety training. I reject this
explanation since the same word is used three times in the three
page statement clearly referring to safety training. I find that
Summers discharged Vaughn (Vaughn did not quit) for two reasons:
Cl> he was upset at Vaughn's request for a raise because Summers
felt he was teaching Vaughn a new job "so he could go on to do
something with his life" (Tr. 117); (2) Sumco had peen cited for
not having submitted a training plan and for having employees who
had not received the proper training, and Summers was concerned
about receiving another citation.
The Secretary filed an application for temporary
reinstatement, and I issued an order on November 28, 1988, to
Sumco to reinstate Robert Vaughn. He returned to work on
December 5, 1988. He worked December 5, 6 and 8, shovelling
around the belt lines on the washer. On December 9, 1988, Vaughn
and 11 or 12 others were laid off because a defect in Sumco's
permit from the State Department of National Resources prevented
it from continuing the job. Some employees were retained on an
irregular basis to wash screened coal and dismantle the equipment.
In early January 1989, the entire operation ceased. I find as a
fact that Respondents did not have work for which complainant
Vaughn was qualified after December 8, 1988.
ISSUES

983

1. Whether Complainant Vaughn was discharged for activities
or status protected by the Act?
2.

If so, to what remedies is he entitled?

CONCLUSIONS OF LAW
I

At all times pertinent hereto, Respondents were mine
operators and Complainant Vaughn was a miner. They were subject
to and protected by the Mine Act, and specifically section lOSCc}
of the Act. I have jurisdiction over the parties and subject
matter of this proceeding.
II
Section 115 of the Act requires each mine operator to submit
a training plan to MSHA for approval. The Act requires that such
a training plan provide among other things that new miners having
no surface mining experience shall receive no less than 24 hours
of training if they are to work on the surf ace. It requires that
the training be provided during normal working hours and that
miners be paid at their normal rates while receiving such
training.
30 C.F.R. § 48.23 requires that in the case of a new
mine or a reopened or reactivated mine, the operator shall have
an approved training plan prior to opening, reopening or
reactivating the mine. Each new miner shall receive no less than
24 hours of training before being assigned to work duties, unless
the MSHA District Manager permits a portion of the training to be
given after assignment to work duties. The required courses are
set out in§ 48.23Cb).
III
Section 104Cg) of the Act provides that if an inspector
finds a miner who has not received the safety training required
under Section 115, he shall issue an order requiring that the
miner be withdrawn and prohibited from reentering the mine until
he has received such training. A miner who is ordered withdrawn
shall not be discharged or otherwise discriminated against, nor
shall he suffer a loss of compensation during the period of
training. The Commission held in Secretary/Bennett v. Emery
Mining Corp., 5 FMSHRC 1391, 1395, (1983), rev'd in part sub nom.
Emery Mining Corp. v. Secretary of Labor, 783 F.2d 155 (10th Cir.
1986) that Section 105(c) of the Act "prohibits interference with
rights provided by the Act, including rights provided under
section 115." Unlike the situation in Rmery, where applicants
for employment wre involved or in Secretary/Williams v. Peabody
Coal Co., 822 F.2d 1134 CD.C. Cir. 1987), involving former

984

employees who had been laid off, Vaughn was clearly a miner when
he was discharged, and therefore was protected under section 115.
IV
In order to establish a prima facie case of discrimination
under section 105(c}, a complainant has the burden of
establishing that his activity or status was protected under the
Act and that the adverse action complained of was motivated in
any part by the protected activity or status. See
Secretary/Fasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980)
rev'd on other grounds sub. nom. Consolidation Coal Co. v.
Secretary, 663 F.2d 1211 C3d Cir. 1981). In the present case, I
have found as a fact that the discharge of complainant was
motivated in part because Respondent had failed to provide the
statutorily mandated training. Therefore, complainant has
established a prima facie case of discrimination. The operator
may rebut such a prima facie case if he establishes that he. was
also motivated by unprotected activity, and that he would have
taken the adverse action because of the unprotected activity
alone. Pasula, supra; Secretary/Robinette v. United Catle Coal
Co., 3 FMSHRC 803 (1981). The evidence in the present case does
establish that Respondent's discharge of complainant was
motivated in part by unprotected activity, namely by Summer's
reaction to complainant's request for a 70 cents an hour raise.
~espondent Summers has not, however, carried his burden of
establishing that he would have discharged complainant for this
reason alone. On the contrary, the evidence is clear that a
major factor motivating his visiting the adverse action on
complainant, was the fact the complainant had not received safety
training and Respondent feared that he would receive another
citation or closure order because of this. I conclude that
Complainant was discharged in violation of section 115 and 105(c}
of the Act.

v
Complainant is entitled to back pay with interest from
June 30, 1988 to December 4, 1988. I conclude that he was laid
off for economic reasons on December 8, 1988, and is not entitled
.to back pay thereafter. The evidence in the record is not
sufficiently clear as to the monetary amount of the back pay to
which complainant is entitled. The interest on the back pay
should be determined in accordance with the Commission decision
in UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (1988).
In determining an appropriate penalty for the violation, I
am considering the facts that Respondent began operating in
January 1988 and was not familiar with the MSHA training
requirements, that the Harlan MSHA office was confused as to the

985

training requirements, and that Respondent has ceased operating
the mine. I cohclude that a penalty of $1~0 is appropriate.
ORDER
Based on the above findings of fact and conclusions of law
IT IS ORDERED:
1. Respondents shall pay to claimant Vaughn back wages from
June 30, 1988 to December 4, 1988 inclusive, with interest
thereon computed in accordance with the Commission decision in
UMWA v. Clinchfield Coal Co., supra. Counsel shall confer within
15 days of the date of this decision, in an effort to stipulate
the amount due complainant under this order. 1/ If they are
unable to so stipulate, Complainant shall submit within 30 days
of the date of this decision, its statement of the amount due.
Respondent may respond within 10 days thereafter.
2. Respondents shall, within 30 days of the date this
decision becomes final, pay a civil penalty in the amount of
$100.
3. The above decision will not become final until a
subsequent order is issued awarding back pay and declaring the
decision to be final.

f{(t~~!--:5 ./h!JvtJ<--k~·~tt.,.

James A. Brode~ick
Administrative Law Judge

1/ Respondents' stipulation of the amount due hereunder will
not, of course, limit their right to seek review of this
decision.

986

Distribution:
Mary K. Spencer, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Rodney E. Buttermore, Jr., Esq., Forester, Buttermore, Turner &
Lawson, P.s.c., P.O. Box 935, Harlan, KY 40831 (Certified Mail)
Mr. Robert Vaughn, P.O. Box 273, Kenvir, KY 40847 (Certified
Mail)
slk

987

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

JUN 5 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AmHNISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 88-152
A.C. No. 15-13469-03658

v.
Green River Coal No. 9 Mine
GREEN RIVER COAL COMPANY,
Respondent
DECISION ON REMAND
Appearances:

Joseph B. Luckett, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
B. R. Paxton, Esq., Paxton & Kusch, Central City,
Kentucky, for the Respondent.

Before:

Judge Koutras
Statement of the Case

On April 24, 1989, I issued a decision in this matter,
11 FMSHRC 685 (April 1989). However, through an oversight, the
decision was issued before the receipt of the posthearing briefs
subsequently filed by the parties. As a result of the premature
issuance of the decision, MSHA filed a petition for discretionary
review with the Commission claiming that a prejudicial error was
committed when the decision was issued prior to the May 3, 1989,
date set by me for the filing of briefs by the parties.
On May 10, 1989, the Commission granted MSHA's petition
for review, vacated my decision, and remanded the case to me
for further consideration in light of .the posthearing briefs
filed by the parties.
Discussion
MSHA only takes issue with my prior decision concerning a
section 104 (A) "S&S" Citation No. 3227259, March 21, 1988, which
cites an alleged violation of the· safeguard provisions of mandatory safety standard 30 C.F.R. § 75.1403(5) (g). The posthearing

988

briefs filed by the parties address this citation, and the
interpretation and application of two prior safeguarding
decisions in Secretary v. Southern Ohio Coal Company, 7 FMSHRC
509 (April 1985), and Secretary v. Mid-Continent Resources,
Inc., 7 FMSHRC 1457 (September 1985).
I have now reviewed and considered the written posthearing
briefs filed by the parties.
The issue raised in the briefs
is the same as that raised by the respondent during oral arguments in the course of the hearing, and it is the same issue
discussed and disposed of in my prior decision at 11 FMSHRC 696
through 703. Under the circumstances, I find no basis for
changing my prior dispositive findings and conclusions with
respect to the citation, and my prior decision in this regard
is herein incorporated by reference and REAFFIR~ED.
ORDER
In view of the foregoing, IT IS ORDERED THAT:
My prior findings and conclusions with respect
to the contested citations in this proceeding,
including the civil penalty assessments for the
citations which have been affirmed, are incorporated
by reference, and REAFFIRMED as my dispositive
decision in this matter. See: 11 FMSHRC 704-705.

~-1/J/ ~~&~~

~~g,e-A. Koutras

Administrative Law Judge

Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
B. R. Paxton, Esq., Paxton & Kusch, 213 E. Broad Street, P.O •
.Box 655, Central City, KY 42330-0655 (Certified Mail)
Dennis D. Clarke, Counsel, Appellate Litigation, Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)
/fb

989

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

JUN 5 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, CMSHA),
Petitioner

v.
FRANK IREY JR., INC.,
Respondent

.
.
.
.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 89-14
A. C. No. 46-01433~03504 C70
Loveridge Preparation Plant

.
DECISION

Appearances:

Charles M. Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlingt~n, Virginia
for Petitioner;
William H. Howe, Esq., Loomis, OWen, Fellman &
Howe, Washington, D.C. 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 of 1977,
30 u.s.c. § 801 et seq., the "Act, 11 in which the Secretary
has charged Frank Irey Jr., Inc., (Irey) with two violations
of regulatory standards. The parties have submitted a motion
to approve a settlement agreement with respect to Citation
No. 3106975 in which the Respondent has agreed to pay the
proposed penalty of $500 in full.
I have considered the
documentation submitted in support of the motion and find
that it comports with the requirements set forth under
section llOCi> of the Act. Accordingly the motion is
approved.
·
Order No. 3106979 remains at issue. The order, issued
pursuant to section 104Cd)(l) of the Act~/ charges a
"significant and substantial" violation of the standard at
30 C.F.R. § 48.28 and of section 115Ca> of the Act. More
specifically the order, as amended at hearing, alleges as
follows:
!/Section 104(d)(l) of the Act reads as
follows:
If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds
that there has been a violation of any mandatory
health or safety standard, and if he also finds
that, while the conditions created by such

990

The following personnel were observed performing
maintenance and repair duties in the preparation
plant, the tripper beltt and,·con~eyor belt
underneath the coal storage bins:·. Jack Byron, Joe
Barskite, Dennis Hanzeley, Paul Lasko, Jim Shaffer,
Robert Sigwalt, Robert Susick, John Williams, Jr.,
John Burch, Ron Clark, Jim Fine, John Pollack,
Steve Supko, John woods, Robert Kondratowicz, and
Lawrence Vizzence and has [sic] not received the
requisite safety training as stipulated in Section
115 of the Act.
The above name employees are experienced and have worked
with the company more than three years and had received
little or none of the required 24 hours of training. In
the absence of such training the employees are declared
to be a hazard to themselves and others and are to be
immediately withdrawn from mine property work areas
until they have received the required training.
Section 115(a) of the Act provides in relevant part as
follows:
Each operator of ··a coal or other mine shall have a
health and safety training program which shall be
approved by the Secretary of Labor. The Secretary
Cont'd fn.l
violation do not cause imminent danger, such
violation is of such nature as could significantly
and substantially contribute to the cause and
effect of a coal or other mine safety or health
hazard, and if he finds such violation to be caused
by an unwarrantable failure of such operator to
comply with such mandatory health or safety
standards, he shall include such finding in any
citation given to the operator under this Act. If
during the same inspection or any subsequent
inspection of such mine within 90 days after the
issuance of such citation, an authorized
representative of the secretary finds another
viol~tion of any mandatory health or safety
standard and finds such violation to be also caused
by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area
affected by such violation, except those persons
referred to in subsection (c) to be withdrawn from,
and to be prohibited fr~n entering, such area until
an authorized representative of the Secretary
determines that such violation has been abated.

991

shall promulgate regulations with the respect to
such health and safety training programs not more
than 180 days after the effective of the Federal
Mine Safety and Health Amendment Act of 1977. Each
training program approved by the Secretary shall
provide as a minimum that-*** (3) all miners shall
receive no less than 8 hours of refresher training
no less frequently than once each twelve months,
except that.miners already employeed on the
effective date of the Federal Mine Safety and
Health Act Amendments of 1977 shall receive this
the refresher training no more than 90 days after
the date of approval of the training plan required
by this section ***·
30 C.F.R. § 48.28(a) provides that "each miner shall
receive a minimum of 8 hours of annual refresher training as
prescribed in this section." Moreover 30 C.F.R. § 48.28Cb)
sets forth the specific courses of instruction that must be
included in the annual refresher training program.
While there is no dispute that the cited Irey employees
did not have the current training under these regulations
Irey maintains that all of its employees at the Loveridge
Mine project here at issue were "construction" workers and
not "miners" and were therefore excluded from coverage under
the training regulations at 30 C.F.R. §§ 48.23 through 48.30.
The definition of "miner" for the purposes of 30 C.F.R.
Part 48 Subpart B is set forth in 30 C.F.R. § 48.22, which
provides in pertinent part as follows:
For the purposes of this subpart B-Ca>Cl> "Miner" means, for purposes of §§48.23
through 48.30 of this subpart B, any person working
in a surf ace mine or surf ace areas of an
underground mine and who is engaged in the
extraction and production process, or who is
regularly exposed to mine hazards, or who is a
maintenance or service worker employed by the
operator or a maintenance or service worker
contracted by the opecator to work at the mine for
frequent or extended periods. This definition
shall include the operator if the operator works at
the mine on a continuing, even if irregular, basis.
Short-term, specialized contract workers, such as
drillers and blasters, who are engaged in the
extraction and pcoduction process and who have
ceceived training-under §48.26 (Training of newly
employed experienced miners) of this subpart B, may
in lieu of subsequent training under that section
of each new employment, receive training under

992

§48.31 (Hazard training) of this subpart B.
definition does not include:

This

Ci) Construction workers and shaft and
slope workers under subpart C of this
part 4 8; • • • •
The Secretary argues with equal conviction that the Irey
employees were indeed subject to the noted training
requirement as "maintenance" workers "contracted by the
operator to work at the mine for frequent or extended
periods." Whether these workers are found to be
"maintenance" workers or "construction" workers is
significant because the Secretary has yet to develop training
regulations for the latter.
The parties agree that the terms "maintenance" worker
and "construction" worker· are not defined in the regulations.
The Secretary urges however that the definition in her
program policy manual be followed. That manual provides the
following descriptions:
Construction work includes the building or
demolition of any facility, the building of a major
addition to an existing facility, and the
assembling of a piece of new equipment, such as
installing a new rotary pump or the assembling of a
major piece of equipment such as a dragline.
Maintenance or repair work includes the upkeep or
alteration of equipment or facilities.
Replacement
of a conveyor belt would be considered maintenance
or repair.
MSHA Program Policy Manual, U.S. Department of Labor,
Vol. III, Page 14 (Release III-1; July 1, 1988).
Irey, on the other hand suggests that the term
"maintenance" be de.Eined as work performed to keep a building
or structure from deteriorating or falling into a state of
disrepair. Even if the definition advanced by Irey is
applied to the facts of this case however it is clear that
the work performed by its employees at the Loveridge
Preparation Plant was indeed "maintenance". There is no
dispute that the work performed by Irey involved essentially
si~ projects performed before, during, and after the two week
period ending on or about July 8, 1988, when the Loveridge
No. 1 Mine was shut down for miners'. vacation. The
replacement of steel beams inside the Preparation ~lant was
performed before, durin3, and after the vacati6n period and
involved 6 to 8 Irey employees. The steel beams had become
rusted and deteriorated to the point that some had holes in
them. The evidence shows that the basic structural design
was not changed by Irey and the only changes made were the

993

replacement.of the rusted beams and deteriorated structural
members with new materials.
During and before the vacation Irey also replaced
concrete on the second floor of the plant using 4 to 6
employees. The existing concrete floor was leaking and had
holes in it exposing the reinforcing wire. Irey removed the
deteriorated concrete and replaced it with new reinforcing
steel and concrete. There was some change in design in that
three wells wer~ built under the belts where the floor had
·previously been flat.
Four Irey employees also worked during the vacation
period straightening the structure on the tripper. The
structure had become bent with only temporary bracing added.
Irey employees removed some of the temporary support
structure and renovated the earlier repairs with heavier
materials.
Four of the Irey employees also replaced the tail roller
on the ~o. 15 belt in the raw coal bin area during the
vacation period. The tail roller had become badly worn and
Irey removed the old tail roller {pulley) and replaced it
with a new tail roller. The new tail rollers were standard
equipment and of a si~ilar nature to those replaced.
Approximately 4 to 6 Irey employees also worked during
the vacation period on the No. 15 belt support structure.
The structure had become twisted and rusted and had holes in
it. Some of the legs had also rusted off. The Irey
employees replaced pieces of the "C channel" and new legs
were welded under the belt. There is some dispute as to
whether there was any change in the basic structural design
of the support structure.
Finally, the evidence shows that approximately 4 Irey
employees were involved during the vacation period sandblasting and painting steel beams in the preparation plant
that had become rusted.
Within this framework of evidence it is clear that the
work performed by Irey at the Loveridge Preparation Plant was
"maintenance" work even within the meaning of Irey's
proffered definition and that while the Irey employees were
performing that work they were "maintenance" workers within
the scope of the MSHA training regulations under 30 C.F.R. §§
48.28 through 48.30. Since the work was performed over more
than a two-week period I also find that the work was
contracted for an "extended" period of time within the
meaning of Section 48.22{a){l). The failure of Irey to have
had the cited employees trained in accordance with the noted
regulations therefore constituted a violation.

994

I note that while some of the work performed by Irey
might broadly be construed to be "construction" work, e.g.
the erection of new steel beams to replace deteriorated
beams, the overall purpose and intent of all of the work was
for the "maintenance" of the existing preparation plant.
Thus, in any event, I find that the cited Irey workers were
indeed "maintenance" workers subject to the existing MSHA
training regulations.
t do not·find however on the facts of this case that the
violation was the result of the "unwarrantable failure" of
Irey to comply with the law. "Unwarrantable failure" means
aggravated conduct constituting more than ordinary negligence
in relation to a violation of the Act. Emery Mining Corp.,
9 FMSHRC 1997 (1987) appeal pending (D.C. Circuit No.
88-1019). In the Emery case the Commission compared ordinary
negligence as conduct that is "inadvertent", "thoughtless",
or "inattentive" with conduct constituting an unwarrantable
failure, i.e. conduct that is not "justifiable" or
"excusable".

In this case the evidence is undisputed that several
months before the beginning of the Loveridge project Irey
contacted the MSHA district manager to inquire about the
necessity for training on the particular project. It is not
disputed that Irey was informed that training would not· be
required under the circumstances of the particular project.
I also observe that Irey's interpretation of the regulations
was not frivolous and the instant case is apparently one of
first impression on the precise issue. Under the
circumstances it cannot be said that Irey was either
negligent or that the violation was the result of its
"unwarrantable failure".
Order No. 3106979 must accordingly
be modified to a citation under section 104Ca> of the Act.
While the Secretary also alleged that the violation was
"significant and substantial" it has failed to address this
issue in her brief.· In order to find that a violation is
"significant and substantial" the Secretary has the burden of
proving an underlying violation of a mandatory safety
standard, a discreet safety hazard Ca measure of danger to
safety) contributed to by the violation, a reasonable
likelihood that the hazard contributed to will result in an
injury, and a reasonable likelihood that the injury in
queation will be of a reasonably serious nature. See Mathies
Coal Co., 6 FMSHRC 1 (1984).
In this case the exi3tence of another violation found at
the same work site where the untrained miners ware working
clearly illustrates the "significant and substantial" nature
of the instant violation. The admitted violation under
Citation No. 3106975 was as follows:
Burning and welding
operations were being done in the tripper belt enclosure in

995

the presence of float coal dust ranging from 2 to 4 inches· in
thickness on the structure within the enclosure. The
"significant and substantial" nature of this violation was
likewise not disputed.
The existence of that violation is illustrative of the
discreet safety hazard existing from the failure to have the
Irey employees trained.
It may also reasonably be inf erred
that the hazard contributed to would result in an injury of a
reasonably serious nature. According to the undisputed
testimony of MSHA inspector Alex Volek the ignition of the
existing float coal dust from the welding operations would
likely result in fatalities. Within this framework of
evidence I conclude that indeed the violation was
"significant and substantial" and serious. In assessing a
civil penalty in this case I have also considered the size of
the opecator, its history of violations, and its good faith
abatement of the violation. Unde~ the circumstances I find
that a civil penalty of $200 is appropriate.
ORDER
Order No. 3106979 is modified to a citation under
section 104Ca) of the Act. Frank Irey, Jr., Inc., is
directed to pay the following civil penalties within 30 of
the date of this decision: Citation No. 3106975- 500,
Citation No. 3106979-$200.

~

/Gar
• Admi
(703

ve Law Judge
61

Distribution:
Charles M. Jackson, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203 (Certified Mail)
Wiliam H. Howe, Esq., Loomis, Owen, Fellman & Howe, 2020 K
Street, N.W., Suite 800, Washington, o.c.
20006 (Certified
M.ail>
nt

996

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

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

JUN 6 1989

CIVIL PENALTY PROCEEDINGS

.

v.

Docket No. WEST 88-62-M
A.C. No. 05-03950-05505
Docket No. WEST 88-64-M
A.C. No. 05-03950-05506
Docket No. WEST 88-120-M
A.C. No. 05-03950-05507

COBBLESTONE, LTD.,
Respondent

Cobblestone Ltd
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Mr. Leonard Lloyd, Cobblestone LTD., Pagosa
Springs, Colorado,
pro se.

Before:

Judge Cetti

These cases are before me upon the petitions for civil
penalties filed by the Secretary of Labor, pursuant to Section
105(b) of the Federal Mine Safety and Health Act of 1977, 30
U .s.c. § 801 et seq., the "Act", charging the operator
Cobblestone LTD., with 21 violations of regulatory standards, set
forth in Part 56, Title 30, Code of Federal Regulations.
The respondent filed a timely answer contesting the
citations and the proposed civil penalty assessments. Pursuant
to notice served on the parties an evidentiary hearing was held
on the merits. The primary issues are whether the respondent
violated the cited mandatory safety standards, and if so, the
appropriate civil penalties to be assessed for the violations
based on the criteria found in Section llO(i) of the Act.
MSHA Inspector Ronald John Renowden and Roy Trujillo
inspected the Cobblestone pit and crusher on August 11th and
12th, 1987. During the two day inspection MSHA issued 21
citations alleging violations of mandatory standards found in
Part 56, Title 30 Code of Federal Regulations.
The Secretary of Labor on behalf of the Mine Safety and
Health Administration seeks affirmation of each of the citations
and proposed civil penalty assessments.

997

STIPULATIONS
After taking the testimony of MSHA Inspector Ronald John
Renowden as to certain violative conditions he observed during
MSHA's inspection, the parties stipulated that the facts recorded
on the face of each citation by the MSHA inspectors "truly and
accurately represent the conditions as they existed at the time
of the inspection". Cobblestone while stipulating that the facts
alleged in the citations are "true and accurate" and in existence
as recorded in the citations at the time of inspection, denies
there was any violation on the basis that the crushing equipment
was never operated in the violative condition observed at the
time of the inspection. It is undisputed that the crushing
equipment was not operated at any time during the two days of
inspection. The parties agree that these stipulations apply to
each of the citations in docket numbers, WEST 88-62-M, WEST
88-64-M and WEST 88-120-M.
The parties also stipulated that the operator's business was
small.
DOCKET NO. WEST 88-62-M
Citation No. 2636670
Citation No. 2636670 alleges a "serlous and significant"
violation of 30 C.F.R. § 56.18002. After taking testimony from
Inspector Trujillo, the Secretary moved to vacate the citation on
the grounds that it was duplicative in that the citation was
based solely upon. the observation of specific violative
conditions for which the operator had already been cited. There
was no objection to the motion. The motion to vacate the
citation was granted.
icitation No. 2636670 and its related proposed civil per,ialty
are each vacated.
1

The Electrical Related Citations Nos. 2636579, 2636580, 2636581,
2636582, 2636583, 2636584, 2636585, 2636586, 2636662, 2636665,
2636667, 2636668, 2636669, and 2636587.
The remaining 14 citations of Docket No. 88-62-M are all
electrical related citations involving the crusher plant and
equipment. The operator's primary defense for these citations as
well as all the other citations was that he had just moved the
crusher from one location at the site to another, and had not
operated the crusher at the new location. He had been trying but
said he was unable as of the time of the inspection to get an
electrician to come to the remote area where the plant was
located to do the necessary electrical work and testing. The
operator testified in detail how three weeks before the

998

inspection he had moved his crusher from one location to another
location at the site so that it was closer to the electric shed.
It was the operator's contention and testimony that he had not
operated the crushing plant since he moved the crusher and
therefore the plant was never in operation at a time when the
violative conditions observed by the inspector were in existence.
He also contended that the crusher's toggle plate had been
removed for modification and consequently that the crusher was
inoperable.
The MSHA inspectors Renowden and Trujillo testified about
their long experience in mining and their observations during the
inspection including the size and location of muck piles. Based
upon their experience and their observation they testified that
the crusher had been in operation after it was moved and that it
was clear to them from their observations that the crushing plant
had been in operation while the violative condition they observed
during their inspection were in existence.
Mr. Lloyd, the operator, contended that there was only one
pile of material of any substance and that was a pile of material
he transported to a conveyor and used to adjust or "train" the
conveyor.
I credit the testimony of Inspectors Renowden and Trujillo
and on the basis of their testimony and expertise find that the
crushing plant was in operation at least for a limited period of
time, after the crusher had been moved and the violative
conditions observed by the MSHA inspectors were.present.
In
addition, it is undisputed that the crushing plant was fully
energized at the time of inspection and that none of the
equipment was locked out or tagged out.
Seven of the remaining 14 citations allege a violation of 30
C.F.R. § 56.12008, which provides as follows:
Power wires and cables shall be insulated adequately
where they pass into or out of electrical compartments.
Cables shall enter metal frames of motors, splice boxes,
and electrical compartments only through proper fittings.
When insulated wires, other than cables, pass through
metal frames, the holes shall be substantially bushed with
insulated bushings.
The seven citations which charged a violation of the above
quoted 30 C.F.R. § 56.12008 are Citation Nos. 2636579, 2636583,
2636584, 2636585, 2636586, 2636662, and 2636587.
Citation No. 2636579 charges as follows:
The 2/4 G-GC, 600-2000V, rubber power cable exiting the
motor starter enclosure for the jaw crusher, 50 h.p.,

999

60 amp, 480 VAC motor branch circuit was not properly
installed in its respective fitting.
The loose cable
fitting has allowed the cable to slide out of the squeeze
zone and exposed the interval wires to the fitting edge
and strain relief clamp, not to mention that the cable
weight was being supported by the power connection in the
enclosure. No vibration or flexing occurs at this location.
Should the cable insulation fail and cause an arcing fault
a person could be exposed to arc flashing.
The box had a
ground circuit via conduit at the panel.
In view of the stipulation of the parties that the citation
accurately documents the conditions observed by the inspector and
my finding that the crusher had been in operation while those
conditions existed. I find that a violation of 30 C.F.R.
§ 56.12008 was established.
Citation No. 2636S79 is affirmed.
The appropriate penalty for this violation and each of the
established violations discussed below will be found and
discussed in due course under the heading "penalty".
Citation No. 2636S83 charges as follows:
The 10/4 type SO rubber power cable exiting the 480 VAC
3 phase motor starter at the switch house for the "stacker
feed" conveyor drive motor was observed not being provided
with a cable entrance fitting.
Tape had been gobbed on
the cable in a effort to support and protect it where it
entered the sharp metal hole at the bottom of the enclosure.
I credit the testimony of the MSHA inspectors. I find and
conclude on the basis of their credible testimony, the
stipulation that the citation accurately describes the conditions
existing at the time of the inspection and my finding that the
crusher plant and equipment had been in operation while those
conditions existed, that there was a violation of 30 C.F.R.
§ S6.12008.
Citation No. 2636S83 is affirmed.
Citation No. 2636584 charges as follows:
The 12/4 and 10/4 type SO rubber power cables entering
and exiting the 480 VAC, 3 phase motor starter enclosure
which serviced 480 volts to the "fines stacker" motor
circuit were observed not being provided with cable entrance
fittings to protect the cable from sharp metal hole edges,
and to support the cable to prevent strain on the starter
480 volt terminate tape had been gobbed in areas around the
cable to protect the wiring from sharp edge wear.
In view of the stipulation of the parties that the citation
accurately documents the conditions observed by the inspector and

1000

my finding tha·t the crusher had been in operation while those
conditions existed.
I find that a violation of 30 C.F.R.
§ 56.12008 was established.
Citation No. 2636584 is affirmed.
Citation No. 2636585 charges as follows:
The 12/4 type 50 rubber power cables entering and exiting
the 480 volt, 3 phase motor starter enclosure for the
stacker motor circuit, were not provided with cable fittings
to protect the cable wiring and prevent strain at on 480
volt terminations. Tape had been used to provide some
protection against damage.
I credit the testimony of the MSHA inspectors. I find and
conclude on the basis of their credible testimony, the stipulation that the citation accurately describes the conditions
existing at the time of the inspection and my finding that the
crusher plant and equipment had been in. operation while those
conditions existed, that there was a violation of 30 C.F.R.
§ 56.12008.
Citation No. 2636585 is affirmed.
Citation No. 2636586 charges as follows:
A strain relief cable fitting was not provided at the
2 hp, 480 VAC, 3 phase fines discharge motor junction
box for the 14/4 type "50" rubber power cable. A rubber
grommet existed which afforded damage protection.
In view of the stipulation of the parties that the citation
accurately documents the conditions observed by the inspector and
my finding that the crusher had been in operation while those
conditions existed.
I find that a violation of 30 C.F.R.
§ 56.12008 was established.
Citation No. 2636586 is affirmed.
Citation No. 2636662 charges as follows:
Ground continuity and resistance of the grounding system
had not been done at the plant.
It was evident that quite
a bit of crushing had been done.
I credit the testimony of the MSHA inspectors.
I find and
conclude on the basis of their credible testimony, the stipulation that the citation accurately describes the conditions
existing at the time of the inspection and my finding that the
crusher plant and equipment had been in operation while those
conditions existed, that there was a violation of 30 C.F.R.
§ 56.12008.
Citation No. 2636662 is affirmed.
Citation No. 2636587 charges as follows:
The 10/4 50 power cable servicing 480 VAC, three phase
power to the 5 hp, 480 VAC, fines stacker motor was not

1001

provided with. a cable entrance fitting. ·The damage was
observed and tape had been gobbed around the cable to
provide damage protection.
In view of the stipulation of the parties that the citation
accurately documents the conditions observed by the inspector and
my finding that the crusher had been in operation while those
conditions existed.
I find that a violation of 30 C.F.R.
§ 56.12008 was established.
Citation No. 2636587 is affirmed.
The next two citation Nos. 2636580 and 2636581 each allege a
violation of the safety standard 30 C.F.R. § 56.12030, which
provides as follows:
When a potentially dangerous condition is found it shall
be corrected before equipment or wiring is energized.
Citation No. 2636580 charges as follows:
The 5 h.p. 7 amp, 480 VAC, 3 phase motor starter at the
switch-house for the "feed hopper" motor branch circuit
was observed having an arcing ground fault condition
existing in the remote/local control circuit. The white
480 VAC control phase conductor in a 12/4 cable was observed
being damaged and exposed the bare conductor.
The bare
damaged area had been laying against the right inside edge
of the motor starter where it had been arcing to ground, in
the unreliably grounded wire 480 VAC system. The control
circuit was tapped to the line side of the starter and the
circuit was protected by a 20 amp inverse time circuit
breaker. This condition created a likelihood for a serious
electrical accident or possible fatality to occur ••••
In view of my findings that the crushing plant had been in
operation while the condition described in the citation was in
existence, it is found that a violation of 30 C.F.R. § 56.12030
was established. Citation No. 2636580 is affirmed.
Citation No. 2636581 charges as follows:
The 12/3 and 12/4 type 50 cables used between the
circuit breaker panel and the motor starter switchgear
at the switch-house was observed being cracked and brittle
which exposed bare 480 volt conductor. In some cases the
bare wiring was exposed to metal enclosure framework and
covers, and because the cover panel was off the main 225
amp 480 volt panel the cracked defective wiring was exposed
in an accessible manner. Arc flash burns and electric

1002

shock could result in the event of unintentional contact
or a faulted condition. Gravity of this condition was
increased by the unreliable safety grounding circuits. The
stacker circuit tested high resistance phase to phase on
the cable from the breaker to the starter.
In view of my findings that the crushing plant had been in
operation while the condition described in the citation was in
existence, it is found that a violation of 30 C.F.R. § 56.12030
was established. Citation No. 2636581 is affirmed.
Citation No. 2636582, issued under section 104(a), alleges a
violation of 30 C.F.R. § 56.12002. The citation charges as
follows:
The General Electric, CR206Bl, NEMA Size "O" motor
controller rated at maximum use of 5 HP at 480 volts was
observed being used beyond the design intended by the
manufacturer, in that, a 3 hp 460 VAC "under jaw" conveyor
motor, a 2 hp 460 volt "fines" discharge conveyor motor,
and the jaw shaker screen, 10 or 15 hp Cmanplate missing)
were all operated simultaneously by the underrated Size "O"
starter. The total horsepower was calculated to be at
least 15 hp.
Additionally, because of this condition the motor running
overload protection provided at the controller unit (sized
Cl5.18) was rated at 12.9 amps, trip @ 16.12 amps for the
10 hp motor. Therefore, the two smaller motors were not
properly protected against overload. The circuit breaker
for the branch circuit was 20 amps.
The cited regulatory standard 30 C.F.R. § 56.12002 provides
as follows:
Electric equipment and circuits shall be provided with
switches or other controls. Such switches or controls
shall be of approved design and construction and shall be
properly installed.
The record, including the stipulations and my findings that
the crusher plant was operated while in the condition observed by
the inspector were in existence establishes a violation of 30
C.F.R. § 56.12002. This citation was issued as S & S violation.
However, the MSHA inspector on the same day he issued the
citation modified the citation from an S & S to a non S & S
violation. As modified to a non S & s violation, Citation No.
2636582 is affirmed.

1003

Citation No. 2636662 charges as follows:
Ground continuity and resistance of the grounding system
had not been done at the plant. It was evident that quite
a bit of crushing had been done.
The cited mandatory standard 30 C.F.R. § 56.12028 provides
as follows:
Continuity and resistance of grounding systems shall be
tested immediately after installation, repair, and modification; and annually thereafter. A record of the .resistance measured during the most recent tests shall be
made available on a request by the Secretary or his duly
authorized representative.
In view of the parties stipulation and my finding that the
crushing plant had been in operation while the condition alleged
in this citation was in existence a violation of 30 C.F.R.
§ 56.12028 was established.
Citation No. 2636662 is affirmed.
Citation No. 2636665 as amended reads as follows:
"A bad splice was observed on the 14/ 4 SO cable that was
spliced to a 12/4 SO cable that was not Cb) insulated to
a degree at least equal to that of the original and sealed
to exclude moisture and Cc) provided with damage protection
as near as possible to that of the original, including good
bonding to the outer jacket. This splice was approximately
three feet from front discharge conveyor motor."
The cited safety standard 30 C.F.R. § 56.12013 provides as
follows:
Permanent splices and repairs made in power cables, including the ground conductor where provided, shall be:
(a) Mechanically strong with electrical conductivity as
near as possible to that of the original;
Cb) Insulated to a degree at least equal to that of the
original, and sealed to exclude moisture; and
Cc) Provided with damage protection as near as possible
to that of the original, including good bonding to the
outer jacket.
It is clear from the record including the stipulation of the
parties that the citation accurately describes the condition
observed by the inspector and my finding that the crusher plant
had been in operation while those conditions were in existence
that there was a violation of the provisions of 30 C.F.R.
§ 56.12013.
Citation No. 2636665 is affirmed.

1004

Citation 2636667 charges as follows:
The 20 amp circuit breaker, the principle power switch
for the stacker motor was not labeled to show what unit it
controlled.
Identification could not be readily made by
location.
The cited mandatory standard provides as follows:
Principle power switches shall be labeled to show which
units they control, unless identification can be made
readily by location.
I credit the testimony of the MSHA inspectors.
I find and
conclude on the basis of their credible testimony, the stipulation that the citation accurately describes the conditions
existing at the time of the inspection and my finding that the
crusher plant and equipment had been in operation while those
conditions existed, that there was a violation of 30 C.F.R.
§ 56.12018.
Citation No. 2636667 is affirmed.
§

Citation No. 2636668 alleges a violation of 30 C.F.R.
56.12008 as follows:
The 2/4 power cable entering jaw crusher motor terminal
box was not properly installed in that the restraining
strap had come loose allowing the weight of the cable to
put a strain on the 480 V conductor connection inside the
junction box. There is a lot of vibration in this area
from the jaw crusher.

In view of my findings that the crushing plant has been in
operation while the condition described in the citation was in
existence, it is found that a violation of 30 C.F.R. § 56.12008
was established. · Citation No. 2636668 is affirmed.
§

Citation No. 2636669 alleges a violation of 30 C.F.R.
56.12004 as follows:
The power cable laying alongside feed conveyor and feed
hopper had been subjected to mechanical damage from rock
falling from conveyor. Some damage was observed on cables
where they had been hit by falling rocks.

The cited mandatory standard 30 C.F.R. § 56.12004 provides
as follows:
Electrical conductors shall be of a sufficient size and
current-carrying capacity to ensure that a rise in temper-

1005

ature resulting from normal operations will not damage the
insulating materials. Electrical conductors exposed to
mechanical damage shall be protected.
Inspector Trujillo testified that the electrical conductors
along side the feed conveyor and feed hopper were exposed to
mechanical damage and were not protected. Mr. Lloyd testified
that he put the boulders on the cable to protect the cable and
that he did not see any damage to the cable.
The Secretary presented evidence that there were dents in
the power cable where 20 to 25 pounds boulders had fall-en on the
cable. The boulders were intermittently on the cable where you
would normally expect to find boulders falling off the side of an
incline conveyor. Mr. Trujillo stated that if someone were going
to try to protect the power cable with boulders they would have
put them all along the length rather than intermittently and they
would not have put the boulder right on top of the cable because
when another rock hits that rock on the cable it would damage the
cable •
.I credit the testimony of Inspector Trujillo. The
electrical conductors in question were unprotected and exposed .. to
mechanical damage. The violation of 30 C.F.R. § 56.12004 was
established. Citation No. 2636669 is affirmed.
DOCKET NO. WEST 88-64-M
Citation No. 2636577
Citation No. 2636577, when issued charged the employer with
a •significant and substantial" violation of safety standard 30
C.F.R. § 56.12032 for failure to keep the cover panel for a
circuit breaker distribution panel in place.
The citation in relevant part reads as follows:
The enclosure/cover panel for the general electric 480/277
volt AC, 3 phase, 225 amp, 4 wire, circuit distribution
panel board, located at the main motor control switch house
was not in place. This exposed the bare terminal
(partially) of the 480 VAC load-side terminals, and crackedbrittle "50" cable ·bare wiring at the panel. The panel contained approximately 9 circuit breakers for motor circuits
and no testing or repairs were being performed in the panel
at the time of inspection.
Should an electric fault occur at the panel, with the cover
off, and a worker was exposed to the event, it is reasonably
likely he would receive serious electric arc flash burns.

1006

The cited standard 30 C.F.R. § 56.12032 provides:
Inspection and cover plates on electrical equipment and
junction boxes shall be kept in place at all times except
during testing or repairs.
Inspector Renowden testified that the cover panel for the
general electric 480/277 VAC, 3 phase, 225 ampere, 4 wire,
circuit breaker panel board was not in place at the time of his
inspection. No testing or repairs were being done.
The bare,
energized conductors within the panel board were readily
accessible.
The citation when issued characterized the violation as
"significant and substantial". At the hearing after both sides
presented their evidence on this citation the Secretary's counsel
conferred off the record with the inspector and then moved to
amend the citation to reflect a non S & S violation rather than
an S & S violation. There was no objection to the motion. The
motion was granted.
Inspector Renowden's testimony clearly shows that there was
a violation of 30 C.F.R § 56.12032. Citation No. 2636577 as
amended by the Secretary to a non S & S violation, is affirmed.
Citation No. 2636664
Citation No. 2636664 issued under section 104Ca) of the Act,
alleges a violation of the mandatory safety standard 30 C.F.R.
§ 56.14001.
The citation reads as follows:
The V-Belt drive on head pulley on INT Conveyor was not
provided with a guard. This V-Belt drive could be
contacted very easily. Some crushing had been done.
The cited safety standard § 56.14001 mandates that head
pulleys "which may be contacted by persons and which may cause
injury to persons", shall be guarded. Inspector Roy Trujillo
testified that the guard on the intermediate conveyor head pulley
was not in place at the time of the inspection.
The V-Belt in
question came from an electric motor that was "bigger" than a 3/4
quarter horsepower motor. The V-Belt drive was used to operate
an intermediate conveyor that carried rocks over to the stacker
conveyor.
There were many cobblestones in the area ranging from
4 to 8 inches in diameter and bigger. Consequently, the footing
in the area was not secure. He observed footprints in the area
but he could not determine whether anyone was walking through the
area when the plant was running. Mr. Trujillo testified that if
someone should stumble while walking by when the belt _was running
and try and catch himself by putting a hand out where it would be

1007

caught by the pinch point, it would probably tear his arm off.
In his opinion a fall in .the area was reasonably likely. It
would be a serious injury that would involve hospitalization and
many lost work days.
Mr. Trujillo testified that he was sure the plant had been
crushing a short time before the inspection but could not testify
that the guard was off at a time when the belt was in operation.
The operator told the inspector that the guard was not in place
because it was being repaired. When the inspector return the
next day to complete the inspection the guard was in place. The
inspector testified however, that he did not notice anything that
indicated to him that the guard had been repaired.
Mr. Lloyd testified the guard was off because it was being
repaired and the belt in question had not been operating while
the guard was off. There was no contrary evidence.
I find no
persuasive evidence that the belt and pulley had been operated
with its guard off. Under the circumstance there is no
persuasive· evidence of a violation of the cited safety standard
which expressly requires the pulley be guarded only when the
moving parts may be contacted by persons and which may cause
injury to the persons. Since the guard was off while the pull~y
and belt were not moving there is no violation of the cited
safety standard. Citation No. 2636664 is vacated.
The decision
on this citation turns not on the issue of credibility but on the
safety standard's express requirement of exposure and the insufficiency of the evidence to establish exposure.
DOCKET NO. WEST 88-120-M
Citation No. 2636578
Citation No. 2636578 charges the operator of Cobblestone
with a "significant and substantial" violation of the mandatory
safety standard 30 C.F.R. § 56.12025. The cited standard
provides as follows:
All metal enclosing or encasing electrical circuits shall
be grounded or provided with equivalent protection. This
requirement does not apply to battery-operated equipment.
Citation No. 2636578 charges as follows:
Inspection of the safety grounding system has revealed that
improper and unsafe grounding ·existed as described in the
following discussion. The power to the crushing plant was
supplied by three pole mounted 50 KVA, high voltage single
phase transformers connected Y-Y.
The secondary was connected in a 480 volt grounded WYE (STAR) service and was
"earth" grounded at the power pole butt ground. The four

1008

service conductors was a Quadraplex aerial drop of approximately 30-35 feet to the main 200 amp service fused disconnect outside on the side of the electrical switch house.
The fourth wire, or system grounding conductor was fed
directly through the main 200 amp service switch and was
terminated to the NEUTRAL terminal bar at the 225 amp, 3
phase 400 480 VAL distribution panel inside the switch
house.
The NEUTRAL bar was INSULATED from the metal panel
enclosure and no bonding jumper existed. A bare ground
wire was terminated to the panel frame and extended to the
main switch outside, where it was also connected to the
metal box frame, and it was these connected/terminated to
an earth driven copper ground rod below the 200 amp switch.
This wiring method created a high resistance/impedance
value in the safety ground system between the ground transformer location at the power pole, and the ground rod
beneath the 200 amp main disconnec.t at the switch house.
This unsafe practice/condition was detected by visual observation and verified with electrical testing instruments:
OHMETER @ megohms; "Biddle" insulation tester, on ohms
scale @ 200 ohms. In the event of a ground fault condition
it is highly likely that the circuit protective devices will
not function as needed, and could expose electrocution
hazards to the workers at the plant •••• (The electrical
system was tested for a ground fault by this electrical inspector, and none was detected - otherwise a imminent danger
closure order would have been issued) On 8/12/87 @ 1400
hrs during an impedance test it was found that the fines
stacker drive motor was not grounded.
The record satisfactorily established that there was a
violation of the mandatory grounding requirements of the safety
standard 30 C.F.R. § 56.12025. The violation could have
contributed to a fatal electric shock by allowing the electric
current to flow through a miner's body rather than through the
grounding conductor. The violation resulted from the operator's
negligence.
The violation of the provisions of 30 C.F.R.
§ 56.12025 was established.
Citation No. 2636578 is affirmed.
The appropriate penalty for this violation and each of the
established violations will be discussed below under the heading
"penalty".
Citation No. 2636661
Citation No. 2636661 (as well as Citation No. 2636663)
alleges a 104(a) violation of 30 C.F.R. § 56.14001. The citation
charges:
The V-Belt drive and pulleys were not provided with guards
on the fines discharge conveyor. This V-Belt was approximately 3 to 4 feet from the ground level and the pinch
points could be contacted easily.
1009

The cited regulation, 30 C.F.R. § 56.14001 provides as
follows:
Gears1 sprockets1 chains1 drive, head, tail, and takeup
pulleys1 flywheels1 couplings1 shafts1 sawblades1 fan
inlets1 and similar exposed moving machine parts which
may be contacted by persons, and which may cause injury
to persons, shall be guarded.
Inspector Trujillo testified that the V-Belts were 3 to 4
feet above ground and the pinch points could be easily contacted
by a person and could easily cause injury. The viola ti.on of 30
C.F.R. § 56.14001 was established. Citation No. 2636661 is
affirmed.
Citation No. 2636663
Citation No. 2636663, issued under section 104Ca) of the
Act, charges the operator with a violation of 30 C.F.R.
§ 56.14001 which is quoted above under the heading "Citation No.
2636661". Citation No. 2636663 alleges that the V-Belt drive
and pulleys on the jaw crusher were not provided with guards.
The evidence presented by petitioner established that there was
an unguarded pinch point was about 5 1/2 feet above the ground··
that was readily accessible. The operator testified that the
bull wheel of the crusher traveled in the opposite direction from
the direction claimed by the inspector and thus that the pinch
point was 3 feet higher than the height a~serted by the inspector.
Respondent claimed therefor that the pinch point was protected by
location. Petitioner contends that there was no protection by
location even if the the pinch point was 8 1/2 feet high rather
than 5 1/2 feet high. Petitioner also presented evidence that in
addition to the pinch point hazard there was the hazard from the
unguarded revolving spokes of the bull wheel.
I credit the testimony of the mine inspector and find there
was a violation of 30 C.F.R. § 56.14001. Citation No. 2636663 is
affirmed.
Citation No. 2636666
Citation No. 2636666 issued under section 104(a) of the Act,
alleges a violation of mandatory standard 30 C.F.R. § 56.12018.
The citation reads as follows:
The 20 amp 3 pole circuit breaker, the principal power
switch for the fines stacker was not labeled to show what
unit it controlled. Identification could not be readily
made by location.

1010

The cited standard 30 C.F.R. §

5~.12018

provides:

Principal power switches shall be labeled to show which
unit they control, unless identification can be made readily
by location.
It clearly appears from the record that the principal power
switch for the fines stacker was not labeled as required by the
cited mandatory safety standard. The violation of 30 C.F.R.
§ 56.12018 was established.
Citation No. 2636666 is affirmed.
PENALTY
Section llO(i) of the Act mandates consideration of six
criteria in assessing appropriate civil penalties:
(1) The size of the business and the appropriateness of the
penalty to the size;
( 2)
The effect on the operator's ability to continue in
business;
(3)

The operator's history of previous violation;

(4)

Whether the operator was negligent;

(5)

The gravity of the violations;

(6) Whether the good faith was demonstrated in attempting
to achieve prompt abatement of the violation.
With respect to size, Cobblestone is owned and operated by
Leonard Lloyd.
It is almost a one-man operation. Mr. Lloyd does
practically all of the mining and milling work with a little help
from his son and one other part-time person. Mr. Lloyd testified
that he has no employees.
The gravel pit and crushing equipment is located on ten
acres of Mr. Lloyd's 120 acre homesite. Evidence was presented
that Cobblestone grossed $45,000 from January 1, 1988 to October
5, 1988. It has three or four thousand dollars outstanding
accounts receivable. Mr. Lloyd has additional income of $2,000
to $3,000 from his jewelry business which he works at during the
winter months.
Mr. Lloyd testified that he was four months delinquent in
his payments on a $366,000.00 note that is secured by his
acreage, his residence, and business of Cobblestone including all
equipment. Mr. Lloyd stated that Cobblestone has not been able
to gross the amount needed to cover the notes.
In view of his
delinquency of four mortgage payments the mortgagor has asserted

1011

its right of acceleration on the note and turned it over to its
attorney's for collection.
The amount due is $366,000.00 plus
interest at 11.25 percent per annum. Cobblestone has a second
mortgage in the sum of $50,000.00. The annual amount due on
these two notes is approximately $50,000.00 a year.
The operator's history of previous violations is set forth
in Exhibit P-1 which is the printout of the assessed violations
in the history report. The printout shows that the operator has
at least a moderate history of previous violations.
With respect to the gravity of the violations Inspector
Renowden testified that in the electrical related citations which
he characterized as significant and substantial the gravity is
high. The hazards that resulted from these violations are
primarily potential electric shock and electrocution and thermal
arc flash burns. He believed there was a substantial possibility
that the injuries would either be an electrocution, electrical
shock or flash burns. There was a likelihood of loss work days
or restricted duty from such an injury.
With respect to each citation that he marked S & S it was
his opinion based on his occupational background and expertise
that injuries would be reasonably likely to occur and there was· a
reasonable likelihood of a serious injury.
Each of the citations on its face indicate that the number
that could be exposed to the potential hazard was one. The
person most likely to be exposed to the hazard is the operator
himself since he is the one who does practically all the work.
Irrespective of the number of persons exposed to the hazards the
gravity of the violation is high in view of the seriousness of
the potential injury.
Mr. Lloyd, the operator moved the crusher from one location
to another approximately three weeks prior to the inspection. He
testified that he had been attempting to get an electrician to
check over and correct the electrical work he performed in moving
the crusher to its new location. He contends that any equipment
he operated was in the nature of alignment and adjustment so the
plant would be able to go into production. He states that at the
time of the inspection he was still preparing the equipment for
commercial production. I have found however, on the basis of the
testimony the MSHA inspectors that while he may still have been
in the process of making some adj~stments and corrections, that
he was operating his crushing equipment. I find that the
violations cited were the result of the operator's negligence.
I
characterized negligence as ordinary negligence which is also
known as moderate negligence.

1012

The operator presented evidence of his difficulty in meeting
the payment due on the notes secured by his heavily mortgaged
property and equipment and his inability to pay the proposed
penalties. The operator has financial difficulties. However, I
do not believe the appropriate penalties assessed in this case
will constitute the difference between the operator continuing or
not continuing in business.
Mr. Lloyd's good faith was demonstrated by his abatement of
each of the cited violations within the extended time MSHA
allowed him for abatement of the violations.
Based on the statutory criteria set forth in section llO(i)
of the Act and also taking into consideration that the operator
was essentially engaged in. a one-man operation, had recently
moved the crusher from one location to another and was trying to
obtain the services of an electrician to check the work and
correct any hazards and the business's serious financial
difficulty I find that the appropriate civil penalty for each of
the violations as follows:
Citation No.
2636578
2636661
2636663
2636666
2636577
2636579
2636580
2636581
2636582
2636583
2636584
2636585
2636586
2636662
2636665
2636667
2636668
2636669
2636587

30 C.F.R.
Violated
56.12025
56.14001
56.14001
56.12018
56.12032
56.12008
56.12030
56.12030
56.12002
56.12008
56.12008
56.12008
56.12008
56.12028
56.12013
56.12018
56.12008
56.12004
56.12008

Assessed Penalty
$ 250.00
100.00
50.00
20.00
50.00
20.00
40.00
30.00
20.00
20.00
20.00
20.00
20.00
20.00
30.00
20.00
30.00
20.00
20.00
$800.00

ORDER
1. Citation No. 2636577 is modified to delete the
characterization "significant and substantial" and as so modified
affirmed.

1013

2. Citation Nos. 2636664 and 2636670 and their related
proposed penalties are each vacated.
The respondent Cobblestone Ltd is directed to pay the civil
penalties assessed in these proceedings within forty (40) days of
the date of these decisions. Upon receipt of payment, these
proceedings are dismissed.

t F. Cetti
nistrative Law Judge
Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, co
80294 (Certified Mail)
Mr. Leonard Lloyd, Cobblestone Ltd., P.O. Box 173, Pagosa
Springs, CO 81147 (Certified Mail)

/bls

1014

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

JUN 6 1989
MID-CONTINENT RESOURCES, INC.,
Contestant

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

CONTEST PROCEEDING

.

Docket No. WEST 89-3-R
Order No. 3077666; 9/23/88
Dutch Creek No. 1 Mine
Mine ID No. 05-00301

.

DECISION
Appearances:

Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.C.,
Glenwood Springs, Colorado,
for Contestant;
James H. Barkley, Esq., Margaret A. Miller, Esq.
Office of the Solicitor, U.S. Department of Labor.,
Denver, Colorado,
for Respondent.

Before:

Judge Morris

This contest proceeding is before me under Section 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seg., (the "Act"). Contestant, Mid-Continent Resources, Inc.,
(Mid-Continent) has challenged an order issued under Section
104(d) of the Act.
Issues
The broad issues presented here involve allegations of
"MSHA enforcement abuse". Specifically, the issue is whether
the Commission has jurisdiction to consider such allegations.
Further, did Mid-Continent violate the escapeway regulation,
30 C.F.R. § 75.1704, and was the 104(d)(2) order appropriate
under the circumstances here.
Procedural History
1. Mid-Continent contested Order No. 3077666 which alleges
a violation of 30 C.F.R. § 75.1704.
2. In addition to its contest Mid-Continent further ~lleged
that the order is part of a persuasive ongoing policy of abuse
against Mid-Continent by the Secretary through MSHA's District
Manager. Said alleged abuse, implemented by MSHA's supervisors
and inspectors, seeks to subject Mid-Continent to shutdowns of
its major mining units whenever possible, and whether properly or
improperly. Mid-Continent further asserts that the order issued
herein by MSHA was arbitrary.

1015

3. When Mid-Continent filed its notice of contest it
further requested an expedited hearing.
4. The motion for an expedited hearing was granted and
a two-day hearing, commencing October 12, 1988, was held in
Glenwood Springs, Colorado.
5. At the hearing both parties presented evidence concerning the contested order. The evidentiary record was closed
on that phase of the case (Tr. 442-443). At the hearing MidContinent, over the Secretary's objection, also presented
evidence in support of its view that the Secretary abused her
statutory discretion in enforcing the Act at Mid-Continent's
mine.
6. At the close of Mid-Continent's evidence the Secretary
orally moved the judge to dismiss all issues involving MSHA
enforcement abuse.
The issues involving abuse were initially raised in the
expedited hearing. Accordingly, after the entry of an order on
the issue of jurisdiction, the judge indicated he would grant the
Secretary time to consider whether she would stand on her motion
to dismiss or seek an evidentiary hearing to present her evidence
on that issue (Tr. 444).
7. On October 17, 1988, the judge~ sponte directed the
parties to file briefs addressing the issue of whether the
Commission has jurisdiction to consider the allegations of MSHA
enforcement abuse.
Such briefs were filed.
8. On December 22, 1988, the judge issued an order dismissing Mid-Continent's broad allegation of "MSHA enforcement
abuse," 10 FMSHRC 1798. The parties were further directed to
file their briefs as to the merits of the contested order.
9. On January 17, 1989, during the course of other hearings
involving the same parties and counsel, Mid-Continent orally
moved and was granted permission to file a motion to reconsider
dismissal of the "MSHA enforcement abuse" issues.
(Request made
in Docket Nos. WEST 88-230 and 88-231).
10. On January 25, 1989, Mid-Continent filed its post-trial
brief addressing the merits of Order No. 3077666. The Secretary
did not file any post-trial briefs add~essing the merits of the
order.

1016

11. On February 15, 1989, the judge extended MidContinent' s time to file its motion to reconsider to February 17,
1989, not including mailing time.
12. On February 21, 1989, Mid-Continent filed its motion
to reconsider the order of dismissal previously entered on
December 22, 1988.
The Secretary did not file in opposition to MidContinent' s motion to reconsider but relied on the judge's
order of December 22, 1988.
(Letter, December 27, 1989}.
Mid-Continent's position
Mid-Continent's position, as stated in its motion to reconsider, is that MSHA's policy directed at Mid-Continent results
in 104(d}(2} closure orders for conditions which by Commission
precedent justify no more than 104Ca} citations. These closure
orders are coupled with an enforcement intensity which is per ~
pervasive.
It is claimed that MSHA's actions adversely affect
the ability of Mid-Continent to produce coal and to continue in
business. The excessive use of orders and abuse of enforcement authority constitutes harassment.
The closure orders and
harassment have in turn cost Mid-Continent millions of dollars in
lost production which may be the death knell of the company. 1/
The company seeks to show that it is within the Commission's
power to hear and consider evidence that MSHA is harassing it
with its excessive enforcement activities. That MSHA is, in
effect, upgrading all citations all for the improper purpose of
attempting to substantially hinder the production of coal, keep
the mine closed and/or drive Mid-Continent out of business.
Mid-Continent argues the judge is empowered to consider such
evidence in proving the invalidity of the order herein which
the operator has timely contested.
It is argued that at least some of the citations and orders
MSHA issued are the fruit of improper enforcement, therefore
Mid-Continent should be entitled to an order declaring such
actions unlawful and enjoining MSHA from doing it further in
the future.
Or, stated another way, the judge is not being
asked to enjoin MSHA from inspecting or citing violations as
its statutory duty. Rather, the judge is being asked to issue
a declaratory judgment that the contested order in this docket
is invalid because it was not issued because of a violation of

l/ Mid-Continent's motion to reconsider at 2.

1017

the regulations but because of a pervasive intent to punish/close
Mid-Continent that is unlawful. Mid-Continent further asks the
judge to order MSHA to cease and desist from issuing improper
citations and orders and abusing its statutory authority under
the 1977 Mine Act.
Mid-Continent further submits the evidence of abuse will
establish that the contested order would not have been issued but
for this abusive enforcement policy.
The operator also contends that MSHA's improper enforcement
policy stands in direct contradiction to the Congressionally established policy enunciated in sections 2 and llOCi) of the 1977
Mine Act, 30 u.s.c. §§ 801 and 820Ci). Therefore, Mid-Continent
submits that its evidence of abuse is reviewable under section
113Cd)(2)(A)(ii) of the 1977 Mine Act, 30 u.s.c. § 823(d)(2)(A)
Cii), as a matter concerning "[a] substantial question of law,
policy and discretion ••• "and it is relevant in order to fully
determine the validity of the contested order pursuant to section
105Cd), 30 U.S.C. § 815(d). If the enforcement is abusive and
improper, then this poisoning taints its corollary inspection
activities.
Mid-Continent argues that consideration by the Commission
of the issue of abuse is consistent and mandated under the
purposes charged by Congress in creating.the Commission. The
company further submits that should such abuse be established,
then the Commission has the power and corollary duty to declare
such abuse unlawful under the 1977 Mine Act and issue declaratory
and remedial orders under its authority to grant "other appropriate relief."
In support of its views Mid-Continent cites various portions
of the Mine Act.
These parts will be considered infra in the
same sequence as presented in Mid-Continent's motion to reconsider.
·
Evidence Concerning MSHA Enforcement Abuse
For the reasons hereafter stated the presiding judge has
concluded that the Commission lacks jurisdiction to consider
Mid-Continent's allegations of MSHA enforcement abuse. However,
the judge considers it appropriate to set forth the relevant
evidence for any reviewing authority.

1018

John A. Reeves, Diane Delaney, Mark E. Skiles, Jimmie E.
Kiser and David A. Powell testified for Mid-Continent.
JOHN A. REEVES, a mining engineer and a person experienced
in mining, has served as President of Mid-Continent for the last
28 years. He was originally hired as a manager in 1957 (Tr. 129132).
.
Mid-Continent's Dutch Creek Mines were developed from the
outcrop of the coal seams with portals at an elevation of
10,000 feet.
The mines contain the only medium volatile coking
seam in the western United States. The seams themselves are
pitched at approximately 13 degrees and they are interlaced with
volcanic intrusions and geographic faults.
The overburden ranges
between 2500 and 3000 feet. Because of the depth of the mines
they are extremely gassy. These conditions present a very
difficult mining environment and probably one of the most difficult in the United States. On numerous occasions the witnes~ has
visited mines in other countries. For example, he has visited
Poland, England, Germany, Belgium, France, Hungary, Mexico and
Japan, to study peat mining technology and techniques in order
to develop suitable techniques and technologies (Tr. 132-135).
As President of Mid-Continent and throughout his mining
career the witness has maintained a close relationship with MSHA,
MESA and the Bureau of Mines.
However, after the Wilberg Mine fire disast~r 2/ the MSHA
District was severely and unfairly criticized at the Senate
oversight hearings. The Senate Investigating Committee blamed
MSHA's District 9 for the fire (Tr. 147). After the hearings a
marked change occurred in MSHA's attitude (Tr. 145-158). This
change was exemplified in an overly stringent enforcement policy
which was biased and in many situations unprofessional (Tr. 148).
This change in attitude and policy was felt at Mid-Continent in
the form of saturation inspections with as many as 17 inspectors
per day specifically directed to issue citations and orders
(Tr. 148). MSHA's stringent enforcement policy has had a drastic
effect upon the operations at Mid-Continent. The saturation
inspections basically took over management of Mid-Continent's
mines.

~/

This coal mine disaster occurred on December 19_, 1984.

1019

Instead of being able to run the coal mining operations
in an organized manner and according to planned policies, supervisory personnel at Mid-Continent are, as a result of inspections
relegated to the role of "re-active management" (Tr. 149-150).
In this situation the foremen are frustrated and due to threats
of criminal liability they are hesitant in the performance of
their duties (Tr. 150). As might be expected, morale has reached
an all-time low with many good qualified miners becoming exasperated and quitting (Tr. 149-150).
During this saturation enforcement, entire mining units were
unnecessarily shut down over minor infractions and incorrect
interpretations of the law.
These, in turn, cost Mid-Continent
thousands of tons of production and made the drafting of accurate
business plans impossible. Finally, this stringent enforcement
policy exercised by MSHA in the Dutch Creek Mine has not resulted
in any increased safety in the workplace.
With its management reacting to MSHA's demands, the company
has neither the re~ources nor the time to continue its excellent
prevention program. Despite the inspection saturation, the accident rate in the Dutch Creek Mines in this time period increased
(Tr. 149-170). MSHA's new increased enforcement or as described
by the witness, "abusive enforcement policy" has been conducted
at a time when dramatic safety improvements have been achieved.
During the last 12 months Mid-Continent made a quantum leap
towards a safer operation (Tr. 151).
Mid-Continent has just completed a $40,000,000 modernization of mining operations in the coal basin.
This modernization
involves two 15,000 foot rock tunnels (called the Rock Tunnel
Project) which intersect the coal seams. These tunnels greatly
improv~ mine ventilation, water drainage and operations.
They
give the workers a level fireproof corridor for escape in the
event of a mine emergency. Previously, the only escape had been
up 7,000 feet of the 13 degree steep slope entries of the coal
seam (Tr. 151). In addition to these improvements, Mid-Continent
also implemented major organizational change designed toward improved safety. After recommendations by Herchel Potter, formerly
MSHA's Chief of Safety, the company hired Jimmie Kiser to direct
and implement an expanded and high-profile safety department
(Tr. 152-153).
The new safety department was emphasized by the establishment of a mine rescue team of competitive quality and use,
consisting of professional mine instructors from Colorado
Mountain College to insure more comprehensive training of
Mid-Continent's work force.
Finally, the operational manager

10_20

was replaced. Mark E. Skiles was hired as the mine manager
with the commitment that Mid-Continent should be totally committed to safety (Tr. 155).
Despite these measures MSHA has refused to "turn down the
heat" or curb its abusive enforcement policy. Despite meetings
with MSHA at the District and Arlington levels, MSHA has refused
to delineate a course of action which the company must follow
to alleviate or address what MSHA considers to be a problem
(Tr. 155).
Reeves considers the current situation to be ironic. Coal
operators are told they must invest in capital expenditures in
order to meet foreign competition. Mid-Continent has invested
over $40,000,000 in modernizing the mine to become competitive
and it has obtained contracts with the Republic of Korea and with
U.S. Steel. However, because of the overreaching enforcement by
MSHA, Mid-Continent was required to invoke the force majure with
the Korea/Pohang Iron and Steel Company "POSCO" (Tr. 157). It
appears that Mid-Continent may have to walk away from its Korean
contract (Tr. 156-157). If MSHA's overreaching enforcement
continues, MSHA will have achieved an end result of putting a
legitimate coal operator out of business (Tr. 156-158).
DIANE DELANEY is the Manager of Government Affairs at
Mid-Continent. Her duties include lobbying at the Colorado
legislature and communicating with government entities. She
has been so employed for the last 10 years (Tr. 291-292).
The witness was present at a meeting in Arlington, Virginia
on July 22, 1987, between MSHA Administrator Jerry L. Spicer
and representatives of Mid-Continent. During the discussions
Mr. Spicer stated that the increased enforcement level taking
place at the Dutch Creek Mine was MSHA's response to rumors that
Mid-Continent was mining in methane gas (Tr. 298-299).
Discussions disclosed that these rumors were in reality
deductions derived from inspector reports the day the inspectors
had difficulty attempting to observe Mid-Continent mine coal.
Specifically, the company had shut down producing sections while
inspectors were in the mine (Tr. 299).
The witness was present at the meeting with MSHA officials
in Denver, Colorado attended by Mr. Spicer and the current MSHA
District Manager for MSHA District 9, John M. DeMichiei. This
meeting concerned the fact that Mr. Spicer had d·etermined to put
to rest the issue of whether or not Mid-Continent was mining in
methane.
In order to accomplish this objective Mr. Spicer stated

1021

he would direct a task force of unbiased MSHA inspectors
accustomed to gas and gassy mining conditions in an intensive
inspection/enforcement effort at Mid-Continent's Dutch Creek
Mines (Tr. 299-300).
During this meeting Ms. Delaney communicated to Mr. Spicer
and Mr. DeMichiei that MSHA had lost sight of its primary
objective. Much of what was occurring in the Dutch Creek Mines
through the inspections seemed to be lacking in common sense and
was counter-productive. Mr. Spicer and Mr. DeMichiei stated
that MSHA would be willing to look into the specific in.stances
of situations where the company felt the inspectors were not
using good judgment. In fact, a meeting to explore these issues
took place in Glenwood Springs, Colorado, on August 19, 1988
(Tr. 300, 301). During the meeting Ms. Delaney presented
Mr. DeMichiei with a list of examples questioning inspector
conduct (Tr. 301-302, Ex. C-11). While this list was far from
all-inclusive it included some of the concerns Mid-Continent
previously communicated to MSHA (Tr. 301-303). Although Mr.
DeMichiei reviewed the list and listened to comments, he did not,
as of the date of the hearing on October 12, 1988, respond to
them (Tr. 305).
MARK E. SKILES is the General Manager of the Dutch Creek
Mine. He has been in the coal mining industry since 1970 and he
has a degree in mining engineering from Penn State. He served
for two years as a MESA inspector (Tr. 311-319).
When serving as an inspector he went to work for U.S. Steel
as a section foreman and was eventually promoted, in varying
stages, to the position of general mine foreman in charge of the
entire mine (Tr. 312). He has also served as special troubleshooter for U.S. Steel inspecting all of their coal mines for
production and safety matters. He has served as superintendent
of the entire Cumberland District (Tr. 312, 314).
When he served as a MESA inspector, Skiles worked out of a
MESA District 3 field office in Morgantown, West Virginia; he
had frequent interaction with MSHA District 2 field office in
Williamsburg, Pennsylvania and with the MSHA District office
in Pittsburgh, Pennsylvania (Tr. 314, 315). Skiles is also well
acquainted with most of the MSHA District 2 employees, particularly while serving as mine rescue trainer and team captain
(Tr. 314, 315).

1022

Before joining Mid-Continent, Skiles mined with gassy coal
seams. While he was an inspector he frequently inspected mines
in northern West Virginia, particularly the Pittsburgh-seam which
liberates approximately 5 to 11 million cubic -feet of methane per
day CTr. 313, 314>.
Despite his familiarity with conditions similar to the Dutch
Creek Mines, Mr. Skiles has difficulty making sense out of the
situation at Mid-Continent. When he began with the company, it
appeared to him no one was actually running the mining operation.
Management was preoccupied with reacting to MSHA inspectors
who were regularly shutting down the mining operations for what
he considered to be doubtful or minor infractions of the law
(Tr. 316, 317). In order to alleviate the problems, Skiles
instituted both operational and organizational changes. He
caused extensive work to be done on the ventilation system.
This resulted in approximately doubling the quantity of air being
brought to the working faces. Nine sub-level managers were
brought into the organization and strategically located to effectively address the operator's management problem (Tr. 317, 318).
In addition to the organizational changes, Skiles took steps
to open up and improve communication between MSHA and MidContinent. Skiles and other Mid-Continent representatives have
met with MSHA officials a number of times at the field office· as
well as the District office and on the Washington, D.C. level
(Tr. 318, 319).
In attempts to understand the situation and the evident
conflict, the witness has met on numerous occasions with MSHA
District 9 Manager John DeMichiei. Finally adopting the practice
he used successfully at U.S. Steel, the witness instituted an
open disclosure policy. In this policy management, after
identifying operational problems, would disclose those problems
to MSHA and further disclose what action management felt should
be taken to address them CTr. 318-319). Despite these measures
MSHA has continued to saturate the Dutch Creek Mine with inspectors. In September and October 1988 there have been approximately 12 to 15 inspectors on the property daily. These
inspections disrupt operations and place management in a reactive
posture where a large percentage of the company's work force and
resources are directed towards orders and citations and away from
normal operations (Tr. 323-324).
·

1023

In his communications with Mr. Skiles, MSHA District 9
Manager John DeMichiei justified his saturation inspections on
his perception that they are necessary in order to keep the
company from mining in methane gas.
It was Mr. DeMichiei's
expressed opinion that normal inspection schedules are not
adequate because the company was shutting down actual mining
operations during these infrequent inspections (Tr. 323).
Through his experience with the MSHA District 9 hierarchies,
Mr. Skiles has concluded that Mr. DeMichiei does not possess a
good understanding of mining operations (Tr. 323). Furthermore,
it is Mr. Skiles' view that Mr. DeMichiei places entirely too
much relevance on speculation and innuendo rather than on actual
facts. Addressing the accusation that Mid-Continent mines had
methane gas, Mr. Skiles has found this perception on the part of
Mr. DeMichiei to be both insulting and unreasonable. There is
nothing in Mr. Skiles' background to suggest that he has allowed
such practices in the past or that he would allow such practices
now. Skiles has always maintained a policy that would result in
the immediate discharge of any section or mine foreman that would
permit mining operations in methane gas. In the months of April
and May, 1988, during the saturation inspections, Mid-Continent
produced 100,000 and 123,000 tons of coal respectively for each
month (Tr. 329-330, 336).
·
Under his current program MSHA has reacted in a hostile and
uncooperative manner toward all management attempts to correct
problems at the Dutch Creek Mine. Mr. Skiles finds the current
attitude and policy evidenced in MSHA District 9 to be in sharp
contrast with his previous experience. In his previous work
experience MSHA had been willing to work with management to
solve problems, as well as to aid and assist management in the
practical operation of the mine (Tr. 321-322).
Mr. Skiles feels the gains his management team has made at
Mid-Continent have been made in spite of MSHA (Tr. 322). It is
the witness' opinion that the MSHA current enforcement program
has nothing to do with the establishment of a safe work
environment in the mines. It is making a "mockery" of safety
(Tr. 324). In Mr. Skiles' opinion MSHA activities at the mine
have very little to do with mine safety and health. He does not
know the reason but what is going on at the mine is making a
mockery out of safety and that makes him "sick" (Tr. 324).
JIMMY E. KISER has been the Safety Director at Mid-Continent
since January 15, 1988. He is experienced in underground coal
mining and for the last 15 years has been exclusively involved
in safety matters (Tr. ~5-37). The witness has held safety

1024

positions with Island Creek Coal Company (Virginia Pocahontas
Division), Jewell Smokeless Coal Corporation, Leckie Smokeless
Coal Corporation, Westmoreland Coal Company, Kaiser Coal Company.
His field of expertise has been dealing in safety problems and
he has a degree in mining engineering (Tr. 35-37).
During his career the witness has become well versed in
establishing comprehensive safety programs in underground coal
mines. He was hired by three companies expressly to establish
safety programs. Mid-Continent hired him for that purpose.
In each of the companies where Kiser was hired he was dealing
with, prior to his arrivai, above average injury rates and above
average MSHA violation rates (Tr. 339).
In Kiser's view, in order to implement a comprehensive
safety program, one must deal with human nature. A program
to be successful must on a workforce wide basis and change communicative techniques, habits, attitudes and beliefs (Tr. 343).
Accordingly, the process of establishing good work habits and
a safe environment is a long one. At Westmoreland Coal Company
it took approximately six to seven years to put together the
programs that resulted in an improved safety performance
(Tr. 342).
Kiser was recruited by Mr. Reeves in order to establish
a new comprehensive and higher profile safety program at MidContinent (Tr. 153). When he began at Mid-Continent, Kiser
immediately expanded both the manpower and resources allocated
to the safety department. Safety inspectors were trained to
provide in-house safety inspections. Further, they were to
serve as liaison to facilitate an understanding of communication
between Mid-Continent and MSHA by traveling with MSHA personnel
on inspections.
In this expansion, resources were put in place
to attempt a more thorough and comprehensive training for
Mid-Continent workers, supervisors, and mine rescue personnel
(Tr. 344). Unfortunately, the inspection saturation was an
interference which precluded Kiser and members of the safety
department from implementing the new safety program. Current
MSHA policy appears to Kiser to be a decision by MSHA to handle
Mid-Continent safety concerns without allowing cooperation or
feedback from the company. Mid-Continent's new safety program
has not been effective because of MSHA (Tr. 345).

1025

Kiser has found MSHA's adversarial stance to be "totally
different" from his previous experiences in other areas. Kiser
believes Mr. DeMichiei and his inspectors do not understand
Mid-Continent's safety concerns (Tr. 346, 347).
DAVID A. POWELL has been continually employed by MidContinent since May of 1983. He has held the position of
assistant superintendent at Dutch Creek Mine No. 1 and he is
currently the Manager of Budget and Planning (Tr. 164-165).
He is a graduate from the Colorado School of Mines in mining
engineering and has successfully completed the professional
engineering examination. Also he is a registered professional
engineer in the State of Colorado (Tr. 164-168).
During Mr. Powell's tenure as Safety Director and continuing
into his present duties he has, with counsel's help, kept records
of the ongoing computerized data files concerning mine act violati_ons issued at Dutch Creek mines and its supporting facilities
(Tr. 169).
These records were kept in order to insure timely abatements
and as a method of evaluating Mid-Continent's compliance with the
law (Tr. 169).
Beginning in September 1987, Mid-Continent experienced
a significant increase in the number of citations and orders
issued by MSHA.
Tabular summaries of MSHA citations and orders
by month, by quarter and all units of Mid-Continent for the years
1983, 1984, 1985, 1986, 1987 and 1988 were received in evidence
(Contestant's Exh. C-6 consisting of 6 pages; Tr. 171-175).
The inspection increase is readily illustrated by comparison of the graphic depictions of MSHA citations and orqers,
the vertical bar charts for the years 1983-1988.
(Tr. 173-175,
(Contestant's Exhibit C-7A, C-7B, C-7C).
The exhibits establish a measured increase in inspection
activity clearly from September 1987 onward, a consequence of
which can only be the result of a major change of enforcement
policy by MSHA in the c·oal basin. The enforcement activities are
disproportionate to the levels of production at Mid-Continent as
the graphs for production indicate (Tr. 176-177).

1026

MSHA's enforcement policy change was verbally confirmed to
the witness on two separate occasions by MSHA officials (Tr. 171).
The first occasion was during a November 1987 meeting at MidContinent' s office in Carbondale, Colorado between company
officials and the then interim MSHA District Manager Ron Shell.
During the meeting Shell stated that the Inspector General had
decided that Mid-Continent should be "singled out and cleaned
up" (Tr. 224).
Further, in February 1988 in the MSHA office in Arlington,
Virginia, company officials met with MSHA Administrator Jerry L.
Spicer to discuss proposed ventilation regulations and increased
enforcement at Mid-Continent. Spicer confirmed that he had
"turned the heat on" in September 1987 when Ron Shell became
interim District Manager for District 9 and that he, Spicer,
could "turn the heat off" (Tr. 180).
During the numerous inspections that were the result of
MSHA's change of policy, an MSHA inspector told Powell that they
had been instructed to write Section 104(d)(2) orders; further,
an S&S citation classification would be the least serious violation written (Tr. 228).
As a part of this increased enforcement policy, MSHA
changed operational policies as well. Rather than implementing
the changes in a normal businesslike manner, MSHA announced and
implemented such changes in an ~ post facto fas~ion by issuing
orders and citations. Some of these policies affected longstanding practices such as the outby inspections of permanent
seals which had been an accepted policy in Dutch Creek mines
for decades (Tr. 228-231).
Since 1985 Mr. Powell, in his capacity as Safety Director
and as Manager of Budget and Planning, formulated and submitted
to MSHA any required plans. In order to perform this function
Powell is required to deal personally with the MSHA District 9
Manager, now John DiMichiei (Tr. 276). Through these dealings
and through other information Powell has come to the conclusion
that Mr. DiMichiei possesses neither the practical experience nor
the engineering expertise needed to adequately analyze the mining
conditions in the coal basin with which Mid-Continent must deal.
As a result the witness is unable to formulate a reasonable and
correct enforcement program for the Dutch Creek mines (Tr. 276).

1027

Because of DiMichiei's inexperience and the lack of engineering expertise, it is Powell's belief that many aspects
of MSHA's current enforcement policies are unreasonable when
applied to the unique mining conditions in the Dutch Creek mines.
For example, the witness believes Mr. DiMichiei's actions in the
area of rib control in the Dutch Creek Mine provides a good,
although not exclusive, example (Tr. 276).
To illustrate: because of different coal characteristics,
the process of supporting coal ribs along mine entries, a common
practice in Eastern mines, is not commonly used in mines in the
western United States. Despite the different geologic areas and
conditions involved, Mr. DiMichiei has repeatedly told Powell
that Dutch Creek mines need rib control. To satisfy DiMichiei's
demands, Mid-Continent would have to institute a program in
which the coal ribs would be bolted.
This practice, if performed in mines with overburden characteristics as contained in
the Dutch Creek mines, would create dangerous bursting conditions
(Tr. 278).
Due to the magnitude of overburden resting on the coal seam,
entries in the Dutch Creek Mines should be developed through the
creation of "yielding-pillars". By this mining technique pillars
are developed in a configuration to prevent the dangerous
accumulations of pressure. When this pressure is released
geologic events commonly described in the industry as "bounces"
or "bursts" occur.
To avoid dangerous accumulations of pressure and the danger
of bursts, a yielding pillar gives under the pressure of the
overburden and crushes out slowly over a period of time. This
yielding.is evidenced by rib sloughage. But should a yielding
pillar be bolted it would prevent or reduce rib sloughage. As
a result the pillar would accumulate huge pressures and present
the possibility of a violent burst (Tr. 276-279).
Mr. Powell has on numerous occasions explained the need
to utilize yielding pillars in the Dutch Creek mines to Mr.
DiMichiei. Despite this, Mr. DiMichiei continues to insist
that Mid-Continent management somehow contain its pillars to
prevent sloughing. In this context it appears to Powell that
Mr. DiMichiei has insisted that Mid-Continent create a hazardous
situation in place of a practice the operator has demonstrated
to be effective in eliminating pillar outbursts (Tr. 279-280).

1028

Since he assumed the duties as MSHA's District Manager,
Mr. DiMichiei has demonstrated great concern about the rumors
that Mid-Continent does not follow its approved ventilation plan
and mined in gas (Tr. 299-327). During a meeting on July 11,,
1988, at the Denver MSHA office Mr. DiMichiei outlined his
program of saturation inspections to determine Mid-Continent's
compliance with its ventilation plan and the ventilation
regulations (Tr. 203-204). At the meeting DiMichiei threatened
to revoke Mid-Continent's violation plan should Mid-Continent
refuse to agree to the saturation inspections (Tr. 287).
The MSHA District 9 saturation inspections began September 22, 1988. During this saturation inspection program an
inspector was stationed each day in each producing section on
every shift.
The inspection lasted through October 1988 and
did not conclude until the end of the calendar year.
The BAB
saturation inspection followed on the heels of the Spicersaturation inspection; namely, the BAA inspection.
The inspectors conducting the BAA saturation inspections
were not employed in MSHA District 9 and came fro~ outside the
District. All the inspectors had experience in gassy mines.
The BAA inspectors had just completed an inspection at Jim
Walters' Alabama mines which, together with Mid-Continent's,
are considered to be some of the gassiest mines in the nation
(Tr. 204-211). During the BAB inspection a District 9 inspector
was assigned to every producing section on every shift throughout the balance of the month of September 1988 (Tr. 204-211)
Powell's records showed that during the 22 days of the
BAA ventilation saturation inspection, a total of 66 citations,
orders and safeguards were issued (See Exh. C-lOA, Appendix D).
However, only 39 of these citations, orders and safeguards related to the ventilation saturation inspection itself (Contestant
Exh. C-lOD, Appendix D). However, no citation, order or safeguard was issued relating to mining in explosive methane
mixtures.
The witness believes the inspectors are under pressure to
write orders. They often say they have no choice. However, the
inspectors rely on their own judgment (Tr. 235-237).

1029

Mid-Continent has received the following citations and
orders for the months indicated:

September 1987
October 1987
November 1987
December 1987
January 1988
February 1988
March 1988
April 1988
May 1988
June 1988
July 1988
August 1988
September 1988

Citations

Orders

111
158
134
87
135
114
88
70
50
77
123
99
135

37
31
15
23
19
18
41
40
6
12
100
150
34

(Tr. 236-2381 Ex C-6)
Mid-Continent also presented extensive exhibits. The
exhibits relevant to allegations of MSHA enforcement abuse are
as follows:

c 6:

Monthly MSHA citation and orders
1983 through 1988.

C 7(a):

Graph, citations and orders
1983 and 1984.

c 7(b):

Graph, citations and orders
1985· and 1986.

C 7(c):

Graph, citations and orders
1987 and 1988.

c 8:

1988 MSHA inspections.

c 9:

Citations, Orders and Safeguards
issued in September 1988 (6 pages).

1030

c 10:

Citations, Orders and Safeguards
issued September 1, 1988 through
September 21, 1988.

C lO(b):

Ventilation Violations
September 1, 1988 through
September 18, 1988.

C lOCc):

Orders re Special Ventilation
Inspections
September 1, 1988 through
September 19, 1988.

C lO(d):

Special Ventilation Inspection.
BAA Orders/ Citations in
September 1988.

C ll(a):

All Citations and Orders (Noise/dust)
issued September 22, 1988 through
September 30, 1988 (4 pages).

c 11 (b):

Citations and Orders
September 22, 1988 through
September 30, 1989 (Noise/dust).

C ll(c):

Citations and Orders
September 22, 1988 through
September 30, 1988 <Noise/dust>.

c ll(d):

Citations and Orders
issued September 22, 1988
through September 1988 (Noise/dust).

c 12:

Memo prepared by Diane Delaney re
Mining Association Meeting on
June 28, 1988 (5 pages).

c 13:

5 page exhibit entitled
"MSHA Orders."

c 14:

Coding for various MSHA mandatory
inspections and investigations.

1031

Discussion and Conclusions
The initial issue presented here is whether the Commission
has jurisdiction to consider Mid-Continent's allegations that
MSHA abused its statutory authority in enforcing the Mine Act.
In Kaiser Coal Corporation, 10 FMSHRC 1165 (1988) the
clearly articulated its jurisdictional authority.
At 1169 the Commission stated as follows:
C~mmission

We begin with the fundamental principle
that, as an administrative agency created by
statute, we cannot exceed the jurisdictional
authority granted to us by Congress. See,~.,
Civil Aeronautics Board v. Delta Airlines,
367 U.S. 316, 322 (1961); Lehigh & New England
R.R. v. ICC, 540 F.2d 71, 78 (3rd Cir. 1976);
National-petroleum Refiners Assoc. v. FTC,
482 F.2d 672, 674 CD.C. Cir. 1973). The
Commission is an independent adjudicative
agency created by section 113 of the Mine Act,
30 U.S.C. § 823, to provide trial-type proceedings and administrative appellate review
in cases arising under the Act. Several provisions of the Mine Act grant subject matter
jurisdiction to the Commission by establishing
specific enforcement and contest proceedings
and other forms of action over which the
Commission judicially presides: ~., section
105(d), 30 u.s.c. § 815(d), provides for the
contest of citations or orders, or the contest
_of civil penalties proposed for such violations;
section 105Cb>C2), 30 u.s.c. § 815Cb)(2), provides for applications for temporary relief
from orders issued pursuant to section 104;
section 107(e), 30 u.s.c. § 817Ce>, provides
for contests of imminent danger order of
withdrawal; section 105(c), 30 U.S.C. § 815Cc),
provides for complaints of discrimination; and
section 111, 30 u.s.c. § 821, provides for
complaints for compensation. Specific provisions, such as these, delineate the scope
of the Commission's jurisdiction.

1032

The Commission's statement of the law would appear to
conclude the matter; however, it is nevertheless appropriate
to consider Mid-Continent's arguments in greater detail.
Mid-Continent states that section 113, 30 U.S.C. § 823
(d)(l), ~/supports its position.
The section, as indicated, addresses the province of
Commission's administrative law judges. The precise issue
urged here was ruled contrary to Mid-Continent's position in
Kaiser Coal Corporation, supra. Specifically, the Commission
ruled that section 113Cd)(l) is procedural in nature. Further,
the language in the Act '.'describes the scope of the judge's
authority to hear and decide matters in those proceedings
otherwise properly filed pursuant to the Act. In short, section
ll3(d)(l) does not constitute an independent grant of subject
~atter jurisdiction", 10 FMSHRC at 1169, 1170.
The Commission's pronouncement is clear and articulate.
As a judge of the Commission I am bound to follow established
precedent.

11

The cited portion reads as follows:
(d)(l) An administrative law judge appointed by the
Commission to hear matters under this Act shall hear,
and make a determination upon, any proceeding instituted
before the Commission and any motion in connection therewith, assigned to such administrative law judge by the
chief administrative law judge of the Commission or by
the Commission, and shall make a decision which constitutes
his final disposition of the proceedings. The decision
of the administrative law judge of the Commission shall
become the final decision of the Commission 40 days after
its issuance unless within such period the Commission has
directed that such decision shall be reviewed by the
Commission in accordance with paragraph (2). An administrative law judge shall not be assigned to prepare a
recommended decision under this Act.

1033

With an emphasis stressing and relying on section 105(d),
30 U.S.C. § 815{d), 4/ Mid-Continent contends its view of subject
matter jurisdiction Is correct.
In particular, the operator relies on the statutory
statements that "the Commission shall afford an opportunity
for a hearing" and "thereafter shall issue an order, based on
findings of fact, affirming, modifying, or vacating the
Secretary's citation, order, or proposed penalty, or directing
other appropriate relief."

!/

The cited portion of the Act provides as follows:
Cd>
If, within 30 days of receipt thereof, an operator
of a coal or other mine notifies the Secretary that he
intends to contest the issuance or modification of an
order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under
subsection {a) or {b) of this section, or the reasonableness of the length of abatement time fixed in a citation
or modification thereof issued under section 104, or any
miner or representative of miners notifies the Secretary
of an intention to contest the issuance, modification,
or termination of any order issued under section 104, or
the reasonableness of the length of time set for abatement
by a citation or modification thereof issued under section
104, the Secretary shall immediately advise the Commission
of such notification, and the Commission shall afford an
opportunity for a hearing {in accordance with section 554
of Title 5, United States Code, but without regard to
subsection {a){3) of such section), and thereafter shall
issue an order, based on findings of fact, affirming,
modifying, or vacating ~he Secretary's citation, order or
proposed penalty, or directing other appropriate relief.
Such order shall become final 30 days after its issuance.
The rules of procedures prescribed by the Commission shall
provide affected miners or representatives of affected
miners an opportunity to participate as parties to hearings
under this section. The Commission shall take whatever
action is necessary to expedite proceedings for hearing
appeals of orders issued under section 104. [Emphasis
added by Mid-Continent.]

1034

The portions of the Act relied on by Mid-Continent fall
within the rationale as stated in Kaiser Coal Corporation, supra.
In addition, the legislative history indicates that the Congress
viewed this section as procedural rather than one conferring
subject matter jurisdiction. See S.Rep. No. 181, 95th Cong.,
1st Sess. 14 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977 at 636.
( " Leg is • Hi st • " )
The reliance by Mid-Continent on section 113(d)(2)(A)(ii),
30 u.s.c. 823(d)(2)CA>Cii) 5/ is also misplaced.
If followed to
its logical conclusion this-section would confer virtually unlimited jurisdiction on the Commission. In short, the Commission
would no longer be limited to the jurisdictional authority
granted it by Congress.·
Section 113(d)(2)(A)Cii) merely delineates appellate pro-.
cedure if the proceedings are otherwise properly filed pursuant
to the Act. On this point see Legis. Hist. at 636 and 1338
(1978); See also footnote 5 in Kaiser Coal Corporation, 10 FMSHRC
at 1170.

11

The cited portion reads as follows:
(ii) Petitions for discretionary review shall. be filed
only upon one or more of the following grounds:
(I)

A finding or conclusion of material fact is not
supported by substantial evidence.

(I I)

A necessary legal conclusion is erroneous.

(III)

The decision is contrary to law or to the duly
promulgated rules or decisions of the Commission.

(IV)

A substantial question of law, policy or
discretion is involved.

(V)

A prejudicial error of procedure was committed.
[Emphasis added by Mid-Continent).

1035

Further Arguments by Mid-Continent
Mid-Continent also states that under the statutory scheme
evidence of claimed abuse falls within the jurisdiction of the
Commission in two additional different respects. 6/
First, it is urged that evidence of abuse is relevant under
section 105Cd) to the extent that it affects the validity of the
contested order.
In this docket, Mid-Continent argues the
evidence of abuse is relevant to rebut MSHA's claim that the
contested escapeway order was properly issued.
Evidence of abuse, according to Mid-Continent, sets the
inspection and the entire inspection activity in its true context.
The evidence presented would allow the Commission to make an
accurate and informed decision whether the conditions cited by
MSHA in this docket in fact constitute a violation of any
regulation, or whether alleged circumstances are nothing more
than a pretext, improperly used, in an attempt to justify the
interruption of coal production.
·
Second, in determining the validity of a contested order
.under section 105(d) the Commission is authorized under section
113Cd)(2)(A)(ii) to review matters involving "[a] substantial
question of law, policy and discretion •••• "
Under the facts presented in this docket, Mid-Continent
asserts it has alleged the invalidity of Order No. 3077666.
It
has brought this contest on the basis that it was the tainted
product of. a policy designed to improperly issue closure orders
and curtail production. The extent to which this policy contributed to the invalidity of the subject order is clearly within
the jurisdictional purview of section 113Cd)(2)(A)(ii).

~/

Mid-Continent motion to consider at 5.

1036

It is argued that consideration of Mid-Continent's abuse
claim is entirely consistent with the purpose for which the
Commission was established.
In reporting the conference changes
of the 1977 Mine Act, the House, mindful of the alleged shortcomings of Interior's Board of Mine Operations Appeals,
characterized the functions of the new Commission as follows:
The conference substitute provides for
an independent Federal Mine Safety and Health
Review Commission. This Commission is assigned
all administrative review responsibilities and
is also authorized to assess civil penalties.
The objective ·in establishing this Commission
is to separate the administrative review functions
from the enforcement functions, which are retained
as functions of the Secretary. This separation is
important in providing administrative adjudication
which preserves due process and installs conf idence in the program. This separation is also
important because it obviates the need for de novo
review of matters in the courts, which has bee~
source of great delay.
[Emphasis supplied by
Mid-Continent].
123 Cong. Rec. H 11644 {daily ed. October 27, 1977) {Remarks of
Rep. Gaydos). See also, s. Rep. No. 95-181, Committee on Human
Resources on s.~7, Federal Mine Safety and Health Act of 1977,
as amended, at 8-9, 47, 95th Cong., 1st Sess. {1977).
According to Mid-Continent the legislative history of the
1977 Mine Act shows also that it was a consistent intention of
the Congress that this new, independent Commission be created as
a check on possible abuse in the enforcement of the Act by the
Secretary. As the Senate Committee explained its plan a full
year before the Act was enacted:
The bill provides to an operator the right
to contest any citation, order or penalty before
the Commission, which is established under section

1037

114 [sic] of the Act. The Committee believes that
an independent Commission is essential to provide
impartial adjudication of these matters and protect
the constitutional rights of operators. Although
the Commission is patterned after the Occupational
Safety and Health Review Commission, the C.ommittee
believes that the heavy caseload of that commission
and the peculiar technical matters involved with
mine health and safety problems warrant the. establishment of an independent Commission. [Emphasis
supplied.]

s. Rep. 94-1198, Committee on Labor and Public Welfare, Federal
Mine Safety and Health Amendments Act of 1976, at 40, 94th Cong.,
2nd Sess. (1976).
Further Discussion
Contestant's arguments concerning "MSHA enforcement abuse"
are not persuasive.
Mid-Continent has failed to distinguish between "MSHA
enforcement abuse" and inspector abuse in connection with a
given order or citation.
Certainly an MSHA inspector may abuse his individual
discretion in issuing a given order or citation. Abuse of
discretion can exist in many areas. 7/

7/ For example, under Commission Rule 51, 29 C.F.R. § 2700.51, a
Commission judge may select a hearing site.
In Lincoln Sand and
Gravel Company it was held the judge did not abuse his discretion
in setting a hearing at a location 150 miles from the mine. On
the other hand, in Cut Slate, 1 FMSHRC 796 (1979), a judge abused
his discretion by requiring a small quarry operator to attend a
prehearing conference about 450 miles from the operator's mine.

1038

The operator states that the violative conditions involving the escapeway cited by Inspector McDonald constituted
a pretext to justify the interruption of coal production.
In
support of its view Mid-Continent states that "(i)n this regard,
it should be recalled from the evidence that the inspector and
his supervisor set out to examine an ostensible roof support
problem in the 103 longwall section (Kiser, Tr. 40, 44). When
no roof problem was found (Kiser, Tr. 48, 50) the MSHA supervisor
became belligerent and issued a verbal closure order 'because the
escapeway was blocked' (Kiser, Tr. 51). The escapeway was not
blocked, and it was passable as the evidence shows (Kiser,
Tr. 62-63), but the MSHA supervisor refused to permit MidContinent's Safety Director to demonstrate that an injured
person could be littered out of the section (Kiser, Tr. 52) ~" 8/
I am not persuaded by this argument. As a threshold matter,
it is not reasonable to conclude that the evidence relied on
establishes that Inspector McDonald intended to interrupt coal
production.
In addition, as will be noted infra, the order
mentions "heavy roof problems" but the Secretary's evidence
(which was not objected to) basically only addresses the condition of the escapeway.
Mid-Continent, citing Helen Mining Co., 1 FMSHRC 219 <1979),
also asserts the Commission is the final interpreter of policy
under the Act.
Contrary to the operator's view, in a recent decision,
the Court of Appeals for the District of Columbia ~/ ruled that
when the Secretary of Labor and the Commission disagree over the
interpretation of a regulation and both views are plausible "the
Secretary rather than the Commission is entitled to the deference
described in Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984)."

!/

Footnote 2, page 6, Mid-Continent motion to reconsider.

!/

Secretary of Labor, et al, on behalf of John W. Bushnell v.
Cannelton Industries, Inc., 867 F.2d 1432 (1989).

1039

In support of its position Mid-Continent also relies on the
penalty criteria provisions as contained in section llOCi),
30 u.s.c. § 820(i) 10/.
I completely agree the Commission is bound to consider the
effect of a penalty on the operator's ability to continue in
business. However, we are dealing here with subject matter
jurisdiction. In addition, I fully concur with Mid-Continent's
statement that "section llO(i) cannot be viewed as an independent basis upon which to justify Commission review of Agency
action." 11/ Accordingly, it is not necessary to further explore
Section llOCi>.
In support of its position Contestant also relies on
section 105(d)(2) of the Act, 12/ the legislative history, and
Commission's broad scope of itS-authority under this section as
expressed in Northern Coal Co., 4 FMSHRC 126, 142 (1982).

10/

The cited portion reads as follows:
Ci>
The Commission shall have authority to assess
all civil penalties provided in this Act.
In assessing
civil monetary penalties, the Commission shall consider
the operator's history of previous violations, the
appropriateness of such penalty to the size of the
business of the operator charged, whether the operator
was negligent, the effect on the operator's ability to
continue in business, the gravity of the violation, and
the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notif ication of a violation.
(Emphasis added by Mid-Continent)

11/

Motion at 8.

12/

(2) Any miner .•• who believes that he has been •••
discriminated against by any person in violation of this
subsection may, within 60 days after such violation occurs,
file a complaint with the Secretary •••.
If upon such
investigation, the Secretary determines that the provisions
of this subsection have been violated, he shall immediately
file a complaint with the Commission • • • • The Commission
shall afford an opportunity for hearing ••• and thereafter shall issue an order, ba~ed upon findings of facts,
affirming, modifying, or vacating the Secretary's proposed
order, or directing other appropriate relief ••••
(Emphasis added by Mid-Continent).

1040

Mid-Continent's argument is misplaced. The statute,
the legislative history and the cited case law all relate to
discrimination cases which are otherwise properly before the
Commission within its grant of authority.
In short, and to
answer the operator's position: 13/ a cease-and-desist order may
be appropriate in a discriminatio'flcase but a discrimination
claim does not bear a remote relationship to MSHA's enforcement
abuse as alleged here.
Finally, the operator states the reasoning in the judge's
prior order is too narrow. 14/ In particular, the order is wrong
for three reasons. First, any injury to Mid-Continent from an
improperly issued order is not cured by invalidating the order
in a contest proceeding. For example, the cost of the legal
proceedings and lost coal production can never be recovered.
Second, the wrong inflicted by MSHA's misconduct is not
remedied by empowering the injured party repeatedly to take the
wrongdoer to court. It is argued that equitable injunctive
remedies such as cease-and-desist orders were developed to
address this very inequity.
Third, there is simply no way an operator can match
the resources of the United States. Simply put, it is not
possible for a small operator like Mid-Continent to litigate
the 1,244 citations and 235 orders issued to it by MSHA during
the calendar year 1988. 15/ The shear enormity of the numbers
make individual contests-an impossibility and a remedy which is
no remedy at all.
I am aware of Mid-Continent's eloquent arguments. But
for the reasons previously stated I do not find the requisite
authority to issue a cease-and-desist order against the Secretary
in her enforcement of the Act.
The fundamental cornerstone of Mid-Continent's position
is that the Commission has jurisdiction to issue injunctive
rel.ief against the Secretary. The foregoing portion of this
decision addresses all the issues raised by Mid-Continent.
But a persuasive argument against Mid-Continent is contained in

13/

Motion at 11.

14/

Motion at 10-12.

15/ Mid-Continent motion at 12 asserts total numbers are
not available for October, November and December, 1988, at the
evidentiary hearing held October 12 and 13, 1988.

1041

Section 108(a), 30 U.S.C. § 818, where Congress clearly indicated
it means how to provide injunctive relief. But in this section
such relief is only in favor of the Secretary against an operator. The section reads as follows:
Injunctions
Sec. 108(a)
(1)

The Secretary may institute a civil action
for relief, including a permanent or temporary
injunction, restraining order, or any other
appropriate order in the district court of the
United States for the district in which a coal
or other mine is located or in which the operator
of such mine has his principal off ice, whenever
such operator or his agent (A) violates or fails or refuses to comply
with any order or decision issued under this
Act.
CB) interferes with, hinders, or delays the
Secretary or his authorized representative, or
the Secretary of Health, Education and Welfare
or his authorized representative, in carrying
out the provisions of this Act.
(C) refuses to admit such representatives
to the coal or other mine.
CD) refuses to permit the inspection of the
coal or other mine, or the investigation of an
accident or occupational disease occurring in,
or connected with, such mine.
CE) refuses to furnish any information
or report requested by the Secretary or the
Secretary of Health, Education, and Welfare
in furtherance of the provisions of this Act,
or

1042

CF) refuses to permit access to, and
copying of, such records as the Secretary or
the Secretary of Health, Education and Welfare
determines necessary in carrying out the provisions of this Act.
(2)

The Secretary may institute a civil action
for relief, including permanent or temporary
injunction, restraining order, or any other
appropriate order in the district court of the
United States for the district in which the coal
or other mine is located or in which the operator
of such mine has his principal off ice whenever
the Secretary believes that the operator of a
coal or other mine is engaged in a pattern of
violation of the mandatory health or safety
standards of this Act, which in the judgment of
the Secretary constitutes a continuing hazard
to the health or safety of miners.

(b) In any action brought under subsection (a), the court
shall have jurisdiction to provide such relief as
may be appropriate. In the case of an action under
subsection (a)(2), the court shall in its order
require such assurance or affirmative steps as it
deems necessary to assure itself that the protection
afforded to miners under this Act shall be provided
by the operator. Temporary restraining orders shall
be issued in accordance with rule 65 of the Federal
Rules of Civil Procedure, as amended, except that
the time limit in such orders, when issued without
notice, shall be seven days from the date of entry.
Except as otherwise provided herein, any relief
granted by the court to enforce any order under paragraph (1) of subsection (a) shall continue in effect
until the completion or final termination of all
proceedings for review of such order under this
title, unless prior thereto, the district court
granting such relief sets it aside or modifies it.
In any action instituted under this section to enforce an order or decision issued by the Commission
or the Secretary after a public hearing in accordance
with section 554 of title 5 of the United States
Code, the findings of the Commission or the Secretary,
as the case may be, if supported by substantial
·
evidence on the record considered as a whole, shall
be conclusive.

1043

The legislative history concerning this section does not
assist Mid-Continent's position. Legis. Hist. at 602.
In sum, Congress knows how to provide for injunctive relief.
It did so in connection with the Mine Act. However, Congress did
not vest subject matter jurisdiction with the Commission to address
the issue of MSHA enforcement abuse.
For the foregoing reasons Mid-Continent's allegation of MSHA
enforcement abuse should be dismissed.
Attorney's fees and lost coal production
At the hearing contestant sought to offer evidence of its
costs incurred in attorney's fees and lost coal production
(Tr. 6-14).
The judge refused to hear such evidence and required contestant to submit an offer of proof as to these matters.
The judge's order entered at the hearing is affirmed in this
decision. Attorney fees and lost coal production are not recoverable in this forum.
Rushton Mining Company, PENN 85-253-R (May 10,
1989) (Commission}; Beaver Creek Coal Co., 10 FMSHRC 758 (1988).
Merits of Order No. 3077666
The order contested here alleges Mid-Continent violated
30 C.F.R. § 75.1704. 16/ The alleged violative condition was
16/

The cited regulation provides as follows:
§ 75.1704

Escapeways - [Statutory Provisions]

Except as provided in §§ 75.1705 and 75.1706, at least two
separate and distinct travelable passageways which are maintained to insure passage at all times of any person, including disabled persons, and which are to be designated as
escapeways, at least one of which is ventilated with intake
air, shall be provided from each working section continuous
to the surface escape drift opening, or continuous to the
escape opening, .or continuous to the escape shaft or slope
facilities to the surface, as appropriate, and shall be
maintained in safe condition and properly marked. Mine
openings shall be adequately protected to prevent the entrance into the underground area of the mine of surface
fires, fumes, smoke and floodwater.
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.
1044

described in the order as follows:
The intake air escapeway was not maintained
in a safe travelable condition. Part of the
escapeway has heavy roof problems, however,
it is supported by truss bolts, resin bolts,
some 6 11 x 6 11 timber and 3 cribs. The bottom
has heaved for approximately 800 feet causing
problems in traveling or moving disabled
persons quickly to the surf ace in the event
of an emergency. The travelway needs to be
cleaned with equipment to make it safe.
Secretary's Evidence Concernin~ Order No. 3077666
GRANT McDONALD, an MSHA inspector, is a person experienced
in mining.
On September 23, 1988, he was directed to do some health
surveys at Mid-Continent. During the inspection he traveled the
length of the 103 longwall. The longwall has an intake escapeway
which is also a travelway CTr. 389-393).
Inspector McDonald's primary purpose was to check on a
supposedly bad roof. As he went into the area he observed the
bottom was heaved and there were some water holes containing
floating material consisting of blocks and wooden wedges
CTr. 394). Along the ribs there were a lot of tin cans, boards,
steel rods and different things strewn about.
The witness also
noted it was difficult to walk in the area because it was heaved.
Heaving, he explained, was where the pressure pushed down and as
a result the floor was pushed up.
There was heaved bottom for
approximately 800 to 900 feet.
The heaved conditions made
traveling difficult. The steeper slope hampers your traveling
ability (Tr. 394-395).
This escapeway is pitched at an angle and you can step on
particles and trip or slide. If the area is well rock-dusted you
can also slide in the rock dust.
In the witness' opinion a
hazard existed since you couldn't exit quickly from the area
(Tr. 395).
The heaving in the area makes it slicker and harder to stand.
Slippery conditions make it more difficult to quickly leave the
area ( Tr • 3 9 6 ) •
Except for the two water holes there was rock dust throughout the 800 foot length of the escapeway.

1045

The water hole in the escapeway was approximately 8 inches
deep where the inspector measured it (Tr. 396). There was a
board floating in the water; also the board had some nails
protruding from it. The water wasn't over the inspector's boots.
But the objects floating on the water created a tripping hazard.
Also there were lumps of coal in the water that a person could
stumble on (Tr. 397).
The pieces floating on the water were 8 to 15 inch-es long
(Tr. 398).
Towards the longwall face there were timbers, steel rods
used for bolting and 5-gallon containers, as well as some rock
dust paper sacks. Most of the debris was on the lower side of
the ribs.
The inspector issued the order because of the accumulations
of the material and the heaving. He felt it was unsafe to make a
quick exit from the area in case of an emergency (Tr. 399).
The fact that the distance between the heaved floor and roof
was less than five feet did not affect the inspector's decision
to issue the order (Tr. 399, 400).
The entry itself was probably 16 to 18 feet wide. He
issued the order because of the travel conditions and the
material floating on the water, not because of the height or
width of the escapeway (Tr. 400, 401).
In the inspector's opinion the supposedly bad roof in the
area was adequately supported (Tr. 400, 401). The roof itself
was sufficiently high to provide an escapeway.
The purpose of an escapeway is to provide a quick exit .
from the area or quickly remove someone that is injured.. It also
introduces fresh air into the mine (Tr. 401).
On two occasions Inspector McDonald had carried an injured
person on a stretcher out of a mine. The footing in this
instance was slippery because of coal and rock dust (Tr. 403).
The escapeway was not impassable.
prevented quick passage.

1046

The angle of the floor

The inspector was not told to issue this order as an S&S
violation. He determined the violation should be S&S because it
was known, or should have been known, to the operator (Tr. 403,
From the hazard he observed, the inspector concluded
404, 408).
a miner traveling the entry could trip, fall, slip or get a
puncture [wound] (Tr. 404). He considered these possibilities to
be reasonably likely to occur (Tr. 404). Also a man carrying a
stretcher could slip and drop it (Tr. 405). Dropping someone can
aggravate a prior injury to the person being carried (Tr. 407).
On the day of the inspection Mid-Continent's safety director
slipped and fell in the entry. But he was not injured (Tr. 409).
On his own judgment Inspector McDonald issued his order
under 104(d)(2) as an unwarrantable failure (Tr. 409). The
inspector initially noted the operator's negligence as moderate.
Inspector Steve Miller later marked the negligence as high.
Inspector McDonald felt the material in the escapeway had been
allowed to accumulate for some time (Tr. 410-411). The numerou·s
buckets and steel rods could not accumulate in one or two days,
but it would take several days CTr. 411).
The area was subject to a preshift examination (Tr. 412).
Inspector McDonald in his sole decision terminated the
order the following day.
In terminating the order he required
the operator to gather up the materials and stack them; to remove
the blocks and stumbling hazards. Where the floor was severely
heaved he required the operator to lower it and level the walkways as nearly as possible (Tr. 413, 414).
The company leveled the floor heaves by using pick and
shovels. They also hand carried the debris out of the area,
removed the floating material and pumped down the water holes
(Tr. 413).
All of the abatement work was done for the entire
distance of 800 to 900 feet (Tr. 413).
The inspector did not take any measurements of the escapeway
after the order was terminated.

1n11...,

Mid-Continent's Evidence on the Merits
JIM KISER, Mid-Continent's safety director, accompanied the
inspectors in the 103 headgate. Inspector Miller said there was
a major roof control problem in the area. After looking at the
roof area the group went to the tailgate. Mr. Miller became
belligerent and ordered Kiser to remove everyone from the face
(Tr. 39-51).
He then issued a 104Cd>C2) order because the escapeway was
blocked.
The witness replied it was not blocked (Tr. 51).
At the face miners were drilling to prevent outbursts
(Tr. 55).
Kiser took a four-foot lathe stick and traveled the area.
There was no debris in the area except for about 150 feet.
The witnes~ believed the escapeway was passable beginning at the
103 longwall intake escapeway to the 103 longwall at the face.
(Tr. 62).
The order did not ref er to any stumbling hazards. Except
for about a distance of 200 feet the height of the escapeway was
seven feet (Tr. 63).
·
The heaving of the floor caused a domed effect. The crown
was about a foot wide; at the crown it measured 4! feet to the
roof (Tr. 65). The most restricted area of the escapeway was
4! feet high by 8 feet wide (Tr. 93).
Kiser offered to demonstrate to Inspector McDonald that the
area could be traveled and was passable by an injured person on a
stretcher. The inspector replied that the only thing to be done
was to clean up the passageway (Tr. 52).
In addition, Mid-Continent's evidence established that
an injured miner was successfully evacuated via the escapeway
from the 103 longwall headgate on June 8, 1988. At the time
walking through the area was a "chore." On the other hand,
the conditions were one hundred percent better on the day the
instant order was issued (Tr. 67-70).

1048

MICHAEL w. HORST, a Mid-Continent safety inspector,
travels with federal inspectors ninety percent of the time.
On the date of this inspection he accompanied Inspector McDonald
and Inspector John s. Miller.
Mr. Miller pointed out to the witness that the escapeway
was neither six feet wide nor five feet high (Tr. 95-100).
Miller, who took measurements, said the escapeway didn't meet
the criteria (Tr. 101-102, 115-116).
As a result of the order the company had to expand the
escapeway in a half dozen places (Tr. 116).
Bill Porter, a mine foreman, was ·in charge of doing the work
necessary to terminate the order. Water holes were pumped and
garbage was moved from the low rib to the high rib (Tr. 117-119).
It took about 22 hours to abate the order (Tr. 122). The heaving
in the floor was abated by the use of pick and shovel. The
company was not permitted to use machines. The witness did not
know who prohibited the use of machines (Tr. 127-128).
Discussion
The evidence on the merits of the order is essentially
uncontroverted.
Specifically, on an uneven domed mine floor we find tin
cans, boards, steel rods, 5-gallon containers, rock dust paper
sacks, nails protruding from boards and wooden blocks floating
in an 8-inch deep water hole. These conditions, essentially
uncontroverted, constitute stumbling hazards that failed to
"insure passage of miners at all times" within the mandate of
§ 75.1704.
Mid-Continent's position focuses on the views that no violation of § 75.1704 occurred; further, the escapeway was passable
as described in Utah Power and Light Company, 10 FMSHRC 71 (1988).
In addition, the contested order would not have been issued if
the inspector had not erroneously interrupted the regulation to
require "quick" passage to the surface. Finally, the circumstances here are inappropriate to support a section 104(d)(2)
order.

1049

As a threshold matter Utah Power and Light Company, supra,
supports the Secretary and not Mid-Continent. The UP&L case
involves three cases and separate factual scenarios. These
should be reviewed: In WEST 87-210-R tripping and stumbling
hazards existed. The hazards were lumps of coal together with
an 8 to 10 inch offset in the escapeway bottom.
In WEST 87-211-R
. tripping hazards consisted of loose coal and sloughage, the toe
of a rib extending into the escapeway and a 6-inch .waterline
obstructing the escapeway.
In the above two cases the undersigned judge held that the
foregoing conditions failed "to insure passage at all times of
any person, including disabled persons," 10 FMSHRC at 84.
On the other hand, in WEST 87-224-R there was no evidence
of any stumbling hazards.
In addition, the Secretary agreed the
escapeway was fully adequate. But the citation was written
solely because the escapeway did not meet the 5 foot by 6 foot
criteria contained in § 75.1704-1.
Based on the record in WEST 87-224-R the undersigned held
that MSHA could not, at least without the benefit of rule-making,
substitute its own design; that is, specific linear foot requirements for the height and width of escapeways, 10 FMSHRC at 74.
Accordingly, the contest in WEST 87-224-R was sustained.
To further consider Mid-Continent's argument in the instant case it is necessary to divide the separate parts of
1
§ 75.1704 _21.

17/

Mid-Continent divides the regulation into three sentence;
As divided it reads:

[l]
Except as provided in §§ 75.1705 and 75.1706, at least
two separate and distinct travelable passageways which are maintained to insure passage at all times of any person, including
disabled persons, and which are to be designated as escapeways,
at least one of which is ventilated with intake air, shall provide from each working section continuous to the surf ace escape
drift opening, or continuous to the escape shaft or slope
facilities to the surface, as appropriate, and shall be maintained in safe condition and properly marked.
[2] Mine openings
shall be adequately protected to prevent the entrance into the
underground area of the mine of surface fires, fumes, smoke, and
floodwater.
[3] 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.
[Bracketed sentence
numbers supplied.]
1050

§

Mid-Continent further contends the structure of 30 C.F.R.
75.1704 establishes the following:
1.

The first sentence addresses what travelable
passageways can be designated as escapeways,
and how these escapeways are to be maintained.

2.

The second sentence addresses how mine openings
are to be maintained.

3.

The third sentence addresses itself to slope
and shaft escape facilities, their location,
maintenance and testing.

Mid-Continent ar~ues the "quick" passage is not a description or requirement contained in the pedestrian escapeway portion
of the regulation. In short, to accomplish the result reached
by Inspector McDonald one must construe the term "travelable
passageway" as being synonymous with the third sentence term
of "escape facility." It is urged that such a term is clearly
inconsistent with both the common terminology used in the coal
mining industry and the plain reading of the regulation.
It is further stated that in industry parlance, slopes and
shafts are commonly associated with steeply pitched or vertical
entries extending to the surface. And because of their grade or
pitch, they are difficult if not impossible to travel by foot.
In such entries, mechanical equipment such as a hoist or an
elevator Can "escape facility") must be in place to facilitate a
"quick" escape from the mine. See, 30 C.F.R. § 75.1704-lCb).
In addition, the language of section 75.1704 recognizes
the above distinction. It does not treat the terms "escape
faciliity" and "travelable passageway" as being synonymous.
It is argued that if there was not meant to be a real distinction there is no reason to use distinctive terms in the
first-sentence vis-a-vis the third-sentence. Mid-Continent
argues there is no other logical reason for the distinctive
terminology. Compare, 30 C.F.R. § 75.1704-l(a) and -l(b).
I concur with Mid-Continent that a fair reading on the
inspector's testimony indicates he believes "quick passage"
is required by the regulation. However, his views are not

1051

binding on the Commission. Basically, the plain words of
§ 75.1704 require that travelways be maintained to "insure"
passage. "Insure," according to Webster, 18/ means "to make
certain esp. by taking necessary measures and precautions."
To like effect see Utah Power and Light Company, supra.
For these reasons Mid-Continent's "quick" escape arguments
are rejected.
Mid-Continent also states that if the debris from expended
mining materials constitutes a genuine issue then the operator
should have been cited under 30 C.F.R. § 75.400-2. 19/
This argument is rejected. It is well established that an
operator cannot shield itself from liability for the violation of
a mandatory standard simply because the operator violated a
different but related standard, El Paso Rock Quarries, Inc.,
3 FMSHRC 35, 40 (1981).
The Secretary alleges the violation herein was "significant
and substantial." Such a violation is described in section 104
Cd)(l) of the Mine Act as a violation "of such nature as could
significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." A
violation is properly designated significant and substantial "if,
based upon the particular facts surrounding the violation there
exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
(April 1981).

18/

Webster's New Collegiate Dictionary, at 595.

19/

The regulation relied on reads as follows:
§ 75.400-2

Cleanup program

A program for regular cleanup and
removal of accumulations of coal and
float coal dusts, loose coal, and other
combusti.bles shall be established and
maintained. Such program shall be
available to the Secretary or authorized
representative.

1052

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission further explained its interpretation of the term
"significant and substantial" as follows:
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove:
Cl) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard--that is, a measure of
danger to saf ety--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 case at bar the Secretary has failed to establish
evidence to support a finding required in the third and fourth
paragraphs as contained in Mathies Coal.
For the foregoing reasons the designation of S&S should
be stricken.
F'inally, Mid-Continent states that the order was improvidently designated as an "unwarrantable failure" under Section
104(d).

I agree. The Commission has defined unwarrantable failure
as "aggravated conduct, constituting more than ordinary
negligence, by a mine operator in relation to a violation of
the Act. Emery Mining Corporation, 9 FMSHRC 1997, 2004 (1987),
The Helen Mining Company, 10 FMSHRC 1672 (1988).
In the case
at bar I find no aggravated conduct by the operator and the
unwarrantable failure designation for Order No. 3077666 should
·be stricken.
For the following reasons I enter the following:

1053

.-r

ORDER

1. Contestant's motion to reconsider the judge's ruling of
December 22, 1988, is denied and Contestant's allegations of
"MSHA enforcement abuse" are dismissed for lack of subject matter
jurisdiction.
2. Order number 3077666 is affirmed as a violation under
Section 104(a) of the Act.
3.
The allegations that the violation was significant and
substantial are stricken.

4. The allegations that the contestant unwarrantably failed
to comply with the regulation are stricken.

Law Judge

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

1054

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

JUN 7 1989
~-

. ·\
,_

~.

' ... .}t-~

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF
DAVID S. HAYNES
Respondent

.
.
.

DISCRIMINATION PROCEEDING
Docket No. WEVA 89-89-D
MORG CD 88-18

v.

.
.

DECONDOR COAL COMPANY,

Mine No. 6

DECISION APPROVING SETTLEMENT
On May 30, 1989, the Secretary filed a Motion to Withdraw
Complaint of Discrimination. This Motion indicates that the
above matter has been settled by the Parties. I have read the
Settlement Agreement attached to the Motion, and find it fairly
disposes of the issues herein. Accordingly, the Secretary's
Motion is GRANTED.
It is ORDERED that the Parties shall abide by all the terms of
the Settlement Agreement dated May 12, 1989, and attached to the
Secretary's Motion To Withdraw Complaint of Discrimination. It is
further ORDERED that the above case be DISMISSED with prejudice.

A~sb~

Administrative Law Judge

Distribution:
Covette Rooney, Esq., Office of the Solicitor, u. s. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)

c. David Morrison, Esq., Harry P. Waddell, Esq., Steptoe & Johnson,
P. o. Box 2190, Clarksburg, WV 26302-2190 (Certified Mail)
dcp

1055

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

22041

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 88-174
A. C. No. 15-13469-03670

v.
Docket No. KENT 88-183
A. C. No. 15-13469-03671

GREEN RIVER COAL COMPANY,
Respondent

Docket No. KENT 89-3
A. C. No. 15~13469-03683
Docket No. KENT 89-11
A. C. No. 15-13469-03684
Mine No. 9
DECISION
Appearances:

Before:

Joseph B. Luckett, Esq., Office of the Solicitor,
Department of Labor, for the Secretary of Labor~
B. R. Paxton, Esq., Paxton and Kosch, P.S.C.
for Green River Coal Company.

Judge Fauver

These consolidated proceedings were brought by the Secretary
of Labor for civil penalties under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq.
At the beginning of the hearing the parties moved for
approval of a settlement that would have included reduction of
the proposed penalties from $7,100 to $5,400 and changing two
§ 104(d){l) orders to§ 104Ca) citations.
The settlement was approved in part and denied in part.
Testimony of the federal mine inspector and documentary evidence
from the government were then received concerning the two
§104{d)(l) orders • . Further discussions on and off the record led
to an amendment to the settlement motion to propose settlement at
the original assessments for the two§ 104(d)(l) orders without
changing the orders and total payment of $6,800. The amended
motion was approved in a bench decision. This Decision confirms
the bench decision.

1056

ORDER
WHEREFORE IT IS ORDERED that:

1.

The citations and orders involved in these proceedings

are AFFIRMED.
2. Respondent shall pay the approved civil penalties of
$6,800 within 30 days of this Decision.

William Fauver
Administrative Law Judge
Oistribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
B. R. Paxton, Esq, Paxton and Kosch, P.S.C., 213 East Broad
Street, P.O. Box 655, Central City, KY 42330-0655 (Certified
Mail)
iz

1057

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

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 9 1989·'

.
.
.

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

.
.

EDWARD KRAEMER & SONS, INC.,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. LAKE 88-118-M
A. C. No. 33-00091-05503
White Rock Quarry Mine

DECISION
Appearances:

Kenneth Walton, Esq., Office of the Solicitor,
u. s. Department of Labor, Cleveland, Ohio,
for the Secretary;
Willis P. Jones, Jr., Esq., Jones & Bahret, Toledo,
Ohio, for Respondent.

Before:

Judge Weisberger

Statement of the Case
In this case the Secretary (Petitioner) seeks civil penalties
for alleged violations by the Operator (Respondent) of 30 C.F.R.
§ 56.20011, and § 103(a) of the Federal Mine and Health Act of 1977
(the Act).
Pursuant to notice, the case was heard in Detroit,
Michigan, on February 1, 1989. Robert G. Casey and David Allen
Bright testified for Petitioner, and Edward Steven Kraemer testified for Respondent.
On May 15, 1989, Petitioner filed Proposed Findings of Fact
and a Post-Trial Brief. On May 19, 1989, Respondent filed a
Proposed Findings of Fact and Conclusions of Law and Post-Trial
Brief.
Stipulations
1. The White Rock Quarry is owned and operated by the
Respondent, Edward Kraemer & Sons, Inc.
2. The White Rock Quarry is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977, and the applicable
regulations promulgated thereunder.

1058

3. The presiding Administrative Law Judge has jurisdiction
over these proceedings pursuant to section 105 of the Act.
4.

Any citations,

orders~

modifications, and terminations,

if any, were properly served by ~he Petitioner through its duly
appointed representative upon an agent of the Respondent.
Citation No. 3060362
Robert G. Casey testified that he is presently a specialist
in special investigations employed by the Mine Safety and Health
Administration, and that in March 1988, he was a mine inspector
for MSHA. Casey testified that, on March 29, 1988, he performed
an inspection of Respondent White Rock Quarry. He said that
approximately 200 to 300 feet from the East Highwall, which was
approximately 100 feet high, and was not being actively worked,
he observed various equipment and also observed access to the
highwall. He testified that he observed loose unconsolidated
material on the highwall and that it was unattended. He indicated, in essence, that the n1oose" material he observed was
immediately obvious. He further indicated that there were no
barricades or warnings. Casey issued a citation which, as
pertinent, alleges that the highwall " • • • has ground conditions
that will warrant correction prior to exposing persons below it."
The Citation further alleges that there were no warning signs or
~azards " • • • to display the nature of the aforesaid hazard."
At the conclusion of the Petitioner's case Respondent made a
Motion for a Directed Verdict. For the reasons that follow, the
Motion was granted.
The above citation alleged a violation of 30 C.F.R. § 56.20011
which provides, as pertinent, as follows:
"Areas where health or
safety hazards exist that are not immediately obvious to employees
shall be barricaded, or warning signs shall be posted· at all
approaches • • •
" The only evidence oi record with regard to
the existence of any health or safety hazard consists of Casey's
testimony that he observed "loose unconsolidated material" on the
highwall. The evidence does not describe in any detail the nature
of the material, its location, or its relative size. As such, the
evidence is woefully inadequate to establish Petitioner's burden of
proving the existence of any health or safety hazard. Furthermore,
section 56.20011, supra, provides for posting of warning signs or
barricading of areas where health or safety hazard exists "that are
not immediately obvious to employees." The only evidence on this
point consists of Casey's statement that the loose material was
immediately obvious. Thus, Petitioner has not established that
there was any health or safety hazard in existence that was not
immediately obvious to employees. Accordingly, Petitioner has
failed to establish that Respondent violated section 56.20011.

1059

Citation No. 3059354 and Order No. 3059355
Findings of Fact and Discussion

I.
David Allen Bright, an MSHA Inspector, indicated that, in
general, surface mines are subject to two inspections each fiscal
year. He said that with regard to Respondent's White Rock Quarry,
in the fiscal year 88, until February 1988, it had not undergone
any inspections. He indicated that on February 23, 1988, he went
to inspect the White Rock Quarry, as it was located within the area
of his responsibility, and his supervisor told him to do a regular
inspection there. He also indicated that there was an outstanding
citation on the West Highwall of the quarry, and a computer printout indicated to him that this citation had not been corrected
within 90 days of its issuance. According to Bright, he thus went
to the quarry on February 23, for the purpose of making a regular
inspection "that would encompass looking into the abatement of the
outstanding citation" (Tr. 108). (i.e. the conditions on the West
Highwall.)
According to Bright, on February 23, 1988, when he arrived
at Respondent's quarry, at approximately 9:30 in the morning, he
spoke to its foreman and advised him that he was there for a
regular inspection. Bright indicated that the foreman told him
that the only activity at the quarry consisted of some repair~
work in the mill and the loading of the materials in some piles.
Bright then went to see Respondent's vice president and general
manager of the quarry, Edward Steven Kraemer, and requested entry
to inspect the mine. In response, according to Bright, Kraemer
informed him that he had to talk with his attorney, and upon
speaking to his attorney, Kraemer asked Bright if the inspection
included the West Highwall. When Bright indicated the inspection
would include the West Highwall, Kraemer stated that, based upon
his attorney's advice, this would not be allowed. Bright then,
in essence, cited the Act, and Kraemer still refused to allow him
to enter the premises. Bright left and returned between 10 and
11 a.m., and presented Kraemer with a citation alleging a violation of section 103(a) of the Act. Kraemer returned the citation
and indicated that Respondent's attorney advised him not to accept
it. Subsequently, Bright returned after 2:00 p.m., on February 23,
and again asked Kraemer if he was denying entry. When Kraemer
indicated in the affirmative and that he would not accept the
Citation, Bright issued a section 104 Order and sent it to him via
registered mail.

1060

On cross-examination, it was elicited from Bright that.on
August 18, i987, he had issued Respondent a citation requiring a
1500 foot section of the West Highwall to be barricaded pending
the scaling of the wall, as it allegedly contained loose areas of
ground. By terms of the citation it was to be abated August 18,
1987, but the deadline was exterfded to November 4, 1987. Bright
indicated that "possibly in October" (Tr. 142) it came to his
attention that Respondent was contesting this citation. On
October 6, 1987, Bright went to Respondent's quarry along with a
technical support group, consisting of Don Kirkwood and Calvin K.
Wu, in order to get a second opinion with regard to complying
with the above citation as to the West Highwall. Kraemer informed
Bright that he (Bright) would be allowed to maKe an inspection, but
Kirkwood and Wu were not allowed to go on the premises upon advice
from Respondent's attorney~
(Bright did not perform any inspection
at that time.).
Kraemer explained that Respondent's attorney advised him not
to allow Kirkwood and Wu on the premises on October 6, 1987, in
order to limit the entry of Petitioner's experts for purposes of
preparing for trial. Essentially, according to Kraemer, in the
last week of January 1988, an agreement had been reached between
Respondent's attorney and Mureen M. Cafferkey, a Trial Attorney
with the Office of the Solicitor, wherein a meeting was set for
March 24, 1988, with Counsel for Respondent, Trial Attorney for
the Solicitor, along with Bright, Kirkwood, Wu, Trig Coombs, Al
Hooper, and Kraemer to try and resolve the outstanding citation.
Kraemer indicated that there was no agreement for Bright to
return to look at the West Highwall.
According to Kraemer, on February 23, 1988, Bright had indicated to him that he was at the quarry for an annual inspection,
but since the quarry was not running he wanted to do a compliance
inspection. Kraemer indicated that he did not tell Bright that
he (Bright) could not do a semiannual inspection, but indicated
that he would have to confer with his attorney, who advised him
not to permit Bright to inspect for "that purpose," (Tr. 215) as
there was an agreement for a future inspection of the West Highwall. Kraemer indicated that aubsequent to Respondent's attorney
talking with the Office of the Solicitor, Bright was allowed on
the quarry for a semiannual inspection.
Section 103(a) of the Act, unequivocally provides for the
inspection of mines for the purposes of • • • "determining whether
there is compliance with the mandatory health or safety standards
or with any citation • • • issued undar this title or other
requirement of this Act." The above section further provides
that in carrying out this requirement, the Secretary shall inspect
a surface mine in its entirety at least two times a year.

1061

According to the uncontradicted testimony of Bright, as of
February 1988, the subject quarry had not yet been inspected for
the fiscal year 1988. I find credible Bright's testimony that
his purpose in visiting the mine on February 23, 1988, was to
conduct a semiannual inspection~which encompassed, in essence,
checking the status of the West Highwall, as the time for compliance with a prior citation had already expired. Although the
quarry operation was not in production·at the ti1ne of Bright's
visit, and Bright could not perform a health or dust inspection,
his testimony stands uncontradicted that a health inspection is
not performed at every inspection, and he still could do a full
inspection.
In this connection, Bright was informed by
Respondent's foreman essentially that workers were present
repairing and loading.
It appears to be Reapondent's argument, that Bright told
Kraemer that inasmuch as the quarry was not in production, he
then would do a compliance inspection. Respondent appears to
maintain that such an inspection should not be permitted, as it's
purpose was to check on a violation being contested by Re3pondent,
and subject to negotiations with the Solicitor, and consequently is
beyond the purvie~ of a semiannual inspection. Whether Bright's
stated purpose to Kraemer was to conduct a semiannual inspection
encompassing the West Highwall, or whether it was, as testified to
by Bright, to perfo~m a "compliance" inspection, I find that either
type of inspection is ~learly within the purview of section 103(a)
which, in essenc~, gives the representative of the Secretary the
right to perform an inspection to determine whether there is compliance with a mandatory safety hazard or with any citation. In this
connection, I note that there is no documentary evidence setting
forth the terms of such an agreement. Further, Kraemer, who was
Respondent's only witness, did not have personal knowledge of the
terms of such an agreement, nor were its terms established through
Petitioner's witnesses.
I thus find that it has not been established that there was any specific agreement between the Petitioner
and Respondent's Counsel to the effect that Bright would not be
allowed to inspect the West Highwall ~ither as part of a semiannual
inspection, or to see whether Respondent was in compliance with the
prior citation 0£ August 1987, concerning the West Highwall.
Based upon all of the above, I conclude that the Respondent
violated section 103(a) of the Act, when it denied Bright permission to enter the quarry on February 23, 1988.
II.
As a consequence of not being permitted to inspect the quarry
on February 23, 1988, Bright was unable to determine if there were
any safety hazards in existence at that time. However, at the ti~e
of Bright's original requests to enter the premises, the quarry was
not in active production. I thus find the gravity of the violation
herein to be only moderate. Although Kraemer should have permitted

1062

Bright to enter on February 23, I find that there is no evidence
that he acted in other than good faith in relying upon the advice
of Counsel in not permitting Bright entry. Accordingly, I find
that Respondent herein acted with only a low degree of negligence.
I considered this a most signif ipant factor in assessing a penalty
for the violation herein. I have considered the remaining factors
set forth in section llOCi) of the Act, and accordingly find that
Respondent shall pay a civil penalty of $50 for the violation
found herein.
ORDER
It is ORDERED that Citation 3060362 be DISMISSED. It is
further ORDERED that Respondent shall, within 30 days of the
Decision, pay $50 as civil penalty for the violation found herein.

{}:-.__ ~

Avram Weisberger
Administrative Law Judge
Distribution:

Kenneth Walton, 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, Jr., Esq., Edward Kraemer & Sons, Inc., Jones &
Bahret, Suite 321 L.O.F. Building, 811 Madison Avenue, Toledo, OH
43624 (Certified Mail)
dcp

1063

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

22041

JUN 9 1989
SECRE'rARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'fRA'rION ( MSHA),
ON BEHALF OF
THOMAS H. GILLE,
Complainant

DISCRIMINATION PROCEEDING
Docket No. LAKE 89-73-DM
MD 89-28

v.
YELLOW RIVER SUPPLY
CORPORATION,
Respondent
ORDER OF DISMISSAL
Before:

Judge Weisberger

On June 5, 1989, the Secretary filed a Motion to Withdraw
Application for Temporary Reinstatement. The Motion indicated
that the Complainant has secured other employment and "is no
longer interested in being temporarily reinstated with Respondent
(Yellow River Supply Corporation) until such time as a decision
on the merits is issued." Accordingly, the Motion is GRANTED.
It is ORDERED that the above case be DISMISSED.

~.~
~Weisberger

Administrative Law Judge

Distribution:
Tina Gorman, Esq., Office of the Solicitor, u. s. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Mr. Dennis Nordstrand, President, Yellow River Supply
Corporation, 210 Sommers Landing Road, Hudson, WI 54016
(Certified Mail)
dcp

1064

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

22041

JUN 9 1989
FLORENCE MINING COMPANY,
Contestant

CONTEST PROCEEDING

v.

Docket No. PENN 86-297-R
Order No. 2697882: 8/14/86

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

Florence No. 2 Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No.
PENN 87-16
A.C. No.
36-02448-03575

v.
Florence No. 2 Mine
FLORENCE MINING COMPANY,
Respondent
DECISION ON REMAND
On May 9, 1989, the Commission affirmed my decision finding
a violation of 30 C.F.R. § 75.1704 and reversed the
"unwarrantable failure" and "significant and substantial"
findings in the decision, remanding the cases for reconsideration
of the civil penalty of $400.
·
Having considered all of the criteria for a civil penalty in
of the Act, I find that a penalty of $100 is appropriate
for the violation.

§ llO(i)

ORDER
WHEREFORE IT IS ORDERED that Florence Mining Company shall
pay the above civil penalty of $100 within 30 days fo this
Decision •.

~
:r-~vV\..-William Fauver
Administrative Law Judge

1065

Distribution:
Covette Rooney, Esq., Office of the Solicitor, U.S. Department of
Labor, 3535 Market Street, Room 14480, Gateway Building,
Philadelphia, PA 19104 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, 58th Floor, 600 Grant
Street, Pittsburgh, PA 15219 (Certified Mail)
iz

1066

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

22041

JUN 9 1989

SECRETARY OF LABOR,
MINE SAE'ETY AND HEAL'rH
ADMINISTRATION (MSHA),
ON BEHALF OF
JOHN L. JONES, JR.,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. WEVA 89-167-D

.

HOPE CO 89-07
Mine No. 4

VIRGNIA CARBON, INC.,
Respondent
DECISION
Appearances:

Mary K. Spencer, Esq., Office of the Solicitor,
U.S. Department of Labor, for the Secretary;
Lawrence E. Morhous, Esq., Bluefield, WV, for
Respondent.

Before:

Judge Fauver

The Secretary of Labor filed an application for temporary
reinstate1nent of John L. Jones, Jr., as a scoop operator at
~espondent's Mine No. 4 in McDowell County, West Virginia.
The
application, brought under§ 105(c) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801, is supported by an
affidavit of Dennis M. Ryan of the Mine Safety and Health
Administration and a copy of the complaint.
Respondent opposed the application and requested a hearing,
which was held on May 15, 1989, at Big Stone Gap, Virginia. The
date was selected for the convenience of the parties, and it was
agreed that if an order of temporary reinstatement is granted, it
will be retroactive to May 1, 1989.
Due to a :nix-up in communication, the reporter did not
appear at the hearing. The parties 8tipulated that they would
waive a transcribed hearing with the understanding that the judge
would summarize the evidence relied upon for his decision. The
hearing included the testimony of the Complainant and documentary
evidence.

1067

At the close of the evidence, oral arguments were heard and
a decision was entered from the bench. This Decision confirms
the bench decision.
Complainant's testimony, in relevant part, may be summarized
as follows:
1. Complainant, John L. Jones, Jr., was first employed by
Respondent as a scoop operator in February 1988, on the evening
shift, at $90 a shift plus time and a half his hourly rate for
over eight hours a day. After five days, he was included in a
layoff which lasted about three weeks. He was reemployed on the
day shift, to perform several functions: to conduct preshift and
onshif t examinations and sign the examination book, to operate a
scoop, and to perform any other duties assigned to him. Because
of the additional responsibility of conducting preshift and
onshift examinations and signing the examination book, he was
paid $110 a shift (plus overtime for hours over eight a day)
instead of $90 a shift.
2.
In October, 1988, Complainant was transfered to the
evening shift. He was relieved of the responsibility of preshift
examinations, but continued making onshift examinations, signing
the examination book, operating a scoop, and performing other
assigned duties.
3. In Novanber, 1988, Complainant had a dispute with his
section foreman, Marshall Keen, who accused him of claiming
one-half hour more than he actually worked on a certain day.
Complainant insisted that he worked 9 1/2 hours as reported,
instead of nine hours as contended by Mr. Keen. The foreman was
very angry and verbally abusive of Complainant, to the point that
Complainant quit on the spot.
4. About three weeks later, after making a number of calls
seeking reemployment, Complainant was reemployed on the evening
shift, with the same responsibilities and pay he had before he
quit. He was so employed until he was discharged on February 17,
1989.
5. It was a common or frequent practice for the section
foreman, Marshall Keen, to order men (sometimes including
Complainant) to clean coal beyond supported roof. The roof was
dangerous, soft and dribbly.
6. Complainant's strong safety concern about this practice
reached a peak on February 16, 1989, when the section foreman,
Marshall Keen, ordered Complainant to bring a scoop up to the
working section and clean coal "up to the face," meaning that he
should scoop coal beyond the last row of roof supports.
Complainant told the foreman that he was too busy with another
job and the foreman then ordered two other employees (Jerry Stump

1068

and Gary Cook) to do the clean up work beyond supported roof.
When Complainant discovered that Stump and Cook had cleaned coal
beyond supported roof, he tried to reprimand them for this unsafe
practice, but they "made a joke about' it," telling Complainant
they took orders from Marshall Keen and not from Complainant.
Complainant then decided that he~could not continue to sign the
onshift examination book because of this unsafe practice and his
belief (from past experience with mine -management) that
Respondent would fire him if he made truthful reports of safety
hazards or violations in the examination book. He therefore
wrote a note to the mine superintendent, Carlos Keen, and stuck
it between pages in the examination book where he expected Carlos
Keen to find it.
7. complainant does not have a copy of the note.
His best
recoilection of its contents is as follows (written by
Complainant at the hearing at the judge's request and marked as
Judge's Exhibit No. 1):
Carlos:
I cannot sign the onshif t Report any more
because Marshall is ordering men to go out
from [sic] under unsupported roof to clean
places up.
I am afraid someone is going to
be killed or hurt, and that my papers will
be taken away from me.
I will continue my
job as a scoop operator.
8. Carlos Keen read the note. On February 17, 1989, he
£ired Complainant because he had refused to sign the examination
book and because he had left a note which a government mine
inspector might have found and could use "to bankrupt"
Respondent.
After Complainant testified, the Secretary rested.
Respondent introduced no evidence.
Section 105(c)(2) of the Act provides that if a miner
believes he has been discharged or otherwise discriminated
against, he may file a complaint with the Secretary of Labor.
The Secretary may apply for temporary reinstatement.
If it is
found, after an opportunity for a hearing before the Commission,
that "the complaint was not frivolously brought the Commission
shall order the immediate reinstatement of the miner pending
final order on the complaint."
The scope of a temporary reinstatement hearing is narrow,
being limited to a determination as to whether a miner's
discrimination complaint was frivolously brought.
30 U.S.C.
§ 815(c)(2); 29 C.F.R. § 2700.44(c).

1069

The hearing evidence indicates that Complainant was
discharged because he complained to his mine superintendent of a
hazardous and violative practice of having miners work under
unsupported roof.
If unanswered, this evidence would support a
finding of a discriminatory discharge in violation of § 105(c) of
the Act.
·
~

I hold that the testimony of the Complainant, the
documentary evidence, pleadings, and the record as a whole
establish that the complaint was not frivolously brought.
Complainant is therefore entitled to temporary
reinstatement.
I make no determination at this point as to the ultimate
merits of the complaint.
Other matters were raised in Complainant's testimony that
may be explored in the full evidentiary hearing on the merits of
the case, but are not necessary to consider here. These include
the accuracy of Complainant's entries in the examination book, a
question whether various tests for ventilation and methane
were actually made, the extent of management's participation in
any inaccuracies or failures to take tests, and the practice of
other examiners concerning similar tests and the accuracy of
their book entries. These matters do not affect my conclusion
that the evidence and record as a whole show a substantial,
nonfrivolous basis for the complaint.
ORDER
WHEREFORE IT IS ORDERED that, pending a final order on the
complaint, Respondent shall immediately reinstate John L. Jones,
Jr., to the position of scoop operator at its Mine No. 4 at the
same rate of pay and shift assignment that he would now have as
scoop operator if he had not been discharged on February 17,
1989. Inasmuch as Complainant does not seek reinstatement as a
shift examiner, and Respondent has assigned another employee to
make and record shift examinations, Respondent may reinstate
Complainant at the pay rate of a scoop operator. Respondent is
FURTHER ORDERED to pay back ~ages of $1,184.16 to John L. Jones,
Jr., covering the period from May 1-15, 1989.

~~v~

William Fauver
Administrative Law Judge

1070

Distibution:
Mary K. Spencer, Esq., Office of the Solicitor, u. s. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Mr. John L. Jones, Jr., HCR 60, Box 357, Iaeger, WV 24844
(Certified Mail)
Lawrence E. Morhous, Esq., Hudgins, Coulling, Brewster, Morhous
and Cameron, 418 Bland Street, P.O. Box 529, Bluefield, WV
24701-0529 (Certified Mail)
iz

1071

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

JUN t 41989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'rRATION ( MSHA) ,
ON BEHALF OF
MIKE E. AMMERMAN,
Complainant

v.
PEABODY COAL COMPANY,
Respondent

.

DISCRIMINATION PROCEEDING
Docket No. KENT 89-25-D
MADI CD 88-19

..

Camp No. 2 Mine

DECISION
Before:

Judge Weisberger

Statement of the case
This case is before me based upon a Complaint filed by the
Secretary on November 14, 1988, alleging that the Operator,
Peabody Coal Company, discriminated against Mike E. Ammerman in
violation of section 105(c) of the Federal Mine Safety and Health
Act of 1977, (the Act), in that the Operator (Respondent) violated
section 103(£) of the Act. An Amended Complaint wad filed on
December 15, 1988, seeking a Civil Penalty of $600. An Answer was
filed January 18, 1989.
The Parties engaged in prehearing discovery, and pursuant to
notice, a hearing in. this matter was scheduled for April 11,
1989, in Nashville, Tennessee. On March 30, 1989, the Secretary
filed a Motion for Summary Judgment, and' in a telephone conference
call on April 11, 1989, between the undersigned and the attorneys
for both Parties, the Parties agreed to waive oral argument, and to
present this matter for disposition based on Motions for Summary
Decision. The hearing set for April 11, 1989, was canceled, and
Respondent filed its Motion for Summary Decision on April 10, 1989.
The Secretary filed a Response to Respondent's Motion on May 17,
19 89.
Findings of Fact
Peabody Coal Company's Camp No. 2 Mine is an underground
facility located in Henderson, Union County, Kentucky. Camp No. 2
is a single mine with two entrances or portals designated as the
East and West Portals.

1072

The United Mine Workers of America CUMWA) has represented the
miners of Camp No. 2 since the mine opened in 1971. The members of
the UMWA Safety Committee, el~~ted by the local's rank and file
members, are the miners' designated representatives for walk-around
federal inspections at camp No. 2. That is, by electing individual
miners to the four-person Safety Committee, the miners at Camp
No. 2 Mine designate such persons as their representatives to
accompany Federal Inspectors on their inspections. In the latter
part of March 1988, Respondent's management was advised by UMWA
that only members of UMWA's Safety Committee would be allowed to
accompany ~SHA Inspectors.
If none of the four Safety Committeemen are present at the mine
at the same shift as the inspection, or if there is more than one
inspe,ctor, thus requiring more than one representative, each Safety
Committeeman is empowered to designate another miner as a miners'
representative.
In such instances, the Safety Committeemen act on
behalf of the miners in naming an alternative (or additional)
representative. Designees, however, are never named just because a
Safety Committeeman does not want to go on an inspection, or to
avoid a situation where a Safety Committeeman would have to travel
from one portal of the mine to the other.
At all relevant times, Douglas Rowans was the superintendent
of the Camp No. 2 Mine, Matt Haaga was the assistant superintendent, and John Jost was the mine foreman on the West Portal.
In the Spring of 1988, the Safety Committee at Camp No. 2
Mine consisted of Terry Miller, Norman Pleasant, Mike E. A1lli~erman,
and Roger Ennis. Miller, Pleasant, and Ammerman all work at the
West Portal of the mine. Roger Ennis is an East Portal worker.
On April 7, 1988, Ammerman reported at his check-in point at
the West Portal shortly before 8:00 a.m., and was told, via mine
telephone, by East Portal worker Ricky Newcom, that the MSHA
inspectors were at the East Portal.
Ammerman was the only one of
the four Safety Committeemen at the mine, at either poctal, on
that day. Ammecman designated Newcom as the other minecs' representative to accompany MSHA Inspector Ronald Oglesby, and said he
would come over to the East Portal to accompany MSHA Inspector
Walter Leppenen. The MSHA inspectors rode into the mine with the
crew at the beginning of the shift at 8:00 a.m.
Ammerman t.old West Portal Mine Foreman John Jost that he was
going to the East Portal, in his capacity as miners' representative in order to accompany an MSHA in.spect.or. .Jost told Ammerman
that he would not be paid for his time spent traveling from the
West Portal to the East Portal, and that he could not furni8h

1073

Ammerman with transportation. Ammerman then went above ground
and traveled to the East Portal elevator by car. This is approximately a 10-15 minute drive.
Ammerman took a man trip from the
East elevator to Unit 2, where the MSHA inspectors had already
arrived. It was approximately 9:00 a.m. when Ammerman met up
with them.
On April 8, Ammerman again came in early and reported to his
check-in point at the West Portal. This tim~ at approximately
7:30 a.m. He went underground and called over to the East Portal.
An East Portal miner told Ammerman that Oglesby was there to
continue the inspection, and that he was the only inspector that
day. Ammerman said he would be there as soon as he could.
~mme:rman again told Jost he was going to the East Portal.
Jost
again said he would not be paid for travel time, but did allow
him the use of a man trip for transportation.
Ammerman took the man trip along the belt line, and met Matt
Haaga somewhere along the way to the West Portal. Haaga told him
that he would not be paid for travel time, and that in the future
he would not be provided transportation.
Ammerman arrived at the
East Portal at approximately 8:45 a.m., and accompanied Oglesby.
He returned to the West Portal at 4:45 p.m.
When Ammerman received his paycheck for the week of
April 4 - 8, 1988, he had been docked 1 hour for April 7 (7 hours.
listed) and 15 minutes on April 8 (7.75 hours listed}.
Issues
The general issue in this case is whether Peabody Coal
Company discriminated against Mike E. Ammerman in violation of
section 105Cc) of the Act, and if so, what is the appropriate
relief t.o be awarded Ammerman, and what are the appropriate civil
penalties to be assessed against Respondent for such discrimination.
The specific issue is whether Respondent violated section
103Cf} of the Act in denying Ammerman pay for the time to travel.
from his work site at the West Portal to the East Portal, where
he ~as to serve as a miners' representative in accompanying an
MSHA in,:;pector.
Discussion
The aff idavit3 accompanying the Motions for Summary Decision
establish that on April 7 - 8, 1988, Mike E. Ammerman, a designated walk-around representative, was denied by Respondent, travel

1074

pay from his work site at the West Portal to the East Portal where
he was to accompany an MSHA inspector on an inspection.
In
essence, it is the Secretary's position that Respondent has
violated section 103(f), which, as pertinent, provides that the
walk-around, Ammerman, " • • . shall suffec no loss of pay during
the period of his participation in the inspection made under this
subsection."
In essence, it is Respondent's position that
section 103(£), supra, does not require it to pay AtTu~erman for the
time spent traveling from portal to portal, as the travel time,
preceded, and is not included in " • • • the period of his participation in the inspection . • •
" Respondent further argues that it
is entitled to" . • • use East Portal workers as representatives,"
in reliance on previous history in which miners not on the Safety
Committee accompanied MSHA inspectors.
(Respondent's Memorandum
P. 12.) For the reasons that follow, I do not find much merit in
Respondent's arguments, and I accept the position of the Secretary.
In essence, according to the affidavits of Ammerman, Ricky
Newcom, Terry Glenn Miller, and Norman Lee Pleasant, Sr., members
of the UMWA Safety Committee are elected by the miners, and ace
the miners' designated representatives for mine inspections.
According to the affidavits 0£ Haaga and Douglas Rowans, management was informed by the Union on March 30, 1988, that only
Safety Committee members would be allowed to accompany inspectors
on their inspections.
As such, it is clear that on April 7 - 8,
1988, Ammerman, as a member of the UMWA Safety Committee, was,
within the purview of section 105, supra, the representative
authorized by the miners to accompany the MSHA inspector on an
inspection.
Further, according to the affidavit of Ammerman, he
was the only Safety Committeeman present at the mine at either
portal on April 7, 1988. Therefore, he was the sole representative of the miners, and as such had to be accorded all the rights
set forth in section 103(f} of the Act.
Thus, in order for the
miners to have their authorized representative (Arrunerman}
accompany the inspector, it was necessary for Ammerman to travel
from his work site at the West Portal to the East Portal, the
site of the inspection. Management clearly did not have option,
as essentially argued by Respondent in its Brief, of utilizing
miners already located at the East Portal, as Ammerman, being the
sole member oE the Safety Committee present, was the authorized
representative.
In this connection, it ia noted that the miners,
acting through their Union, and not the Operator, have the
authority to designate a representative for the purpose of
accompanying an inspector.
(See, Truex v. Consolidation Coal
Company, 8 FMSHRC 1293, 1298 (1986); See also, Consolidation Coal
Co., 6 FMSHRC 458).

1075

It now must be decided whether Respondent, by virtue of
section 103{f), supra, had the obligation to pay Ammerman for the
travel time from the West Portal to the East Portal.
In this
connection, section 103{f) provides that the miners' representative accompanying the inspector " • • • shall suffer no loss of
pay during the period of his participation in the inspection • • •
" It appears that, in general, Congress intended a broad
construction to be placed on this phrase.
In this connection, it
is noted that the Senate Report accompanying S. 717, CS. Rept
No. 181, supra, at 28-29, 95th Cong. 1st Sess. 28-29 (1977), as
reprinted in Legislative History of the Federal Mine Safety and
Health Act {Leg. Hist.) at 616-617), provides with regard to the
intent behind Section 103, supra, that "To encourage such miner
participation it is the Committee's intention that the miner who
participates in such inspection and conferences be fully compensated by the operator for the time thus spent. To provide for
other than full compensation would be inconsistent with purpose
of the Act and would unfairly penalize the miner for assisting
the in:3pectoc in performing his duties."
(Emphasis added).
Thus, inasmuch as Ammerman's travel from the West to the
East Portal was for the sole purpose of accompanying an MSHA
inspector on an inspection, and inasmuch as the exercise of this
right could not have been performed without traveling from his
work site to the inspection site, it is clear that to deny him
pay for the travel time would deprive him of the full compensation conteinplated by section 103 { f), supra.
I find it unduly
restrictive, to hold, as argued by Respondent, that. Ammerman be
denied pay Ear travel as it occurred prior to his "participation"
in the inspection.
To disallow pay Ear the travel time from
portal to portal might have the effect of discouraging miners'
participation in inspections, and as such would thwart the
Congressional intent behind section 103(£) of the Act, of encouraging miner's participation in inspections.
Therefore, I conclude that Respondent, in not paying .Ammerman
for the travel on April 7 - 8, from his work site to the inspection
site, caused him to suffar a loss of pay in violation of section 103(£), supra, and thereby discriminated against him in
violation of section 105(c)(l) of the Act.

In assessing a penaltt to be imposed against Respondent, I
have considered the fact that although the refusal by Respondent
ta pay for Atnme:cman's portal to portal travel to accompany an
inspector on April 7- 8, might tend to discourage miners'
participation in inspections. However, there is no evidence
be Eore rne that such actually OCCiHTed.
Ammerman, in his
affidavit, indicated that Mine Foreman John Jose (Jost) and
Assistant Superintendent Matt Haaga, both informed him that he

1076

would not be paid for portal to portal travel to accompany the
inspector.
However, A~nerman in his affidavit did not indicate
that either Jost or Haaga informed him of the reason for this
decision.
John Jost, Respondent's mine manager of the West
Portal, indicated in his affidavit that he advised Ammerman that
he would not be paid for the travel as a result of a directive
received from management that such time was not compensable.
Douglas Rowans, the superintendent of Respondent's Camp No. 2,
indicated in his affidavit that he advised Safety Corrunittee
members on March 30, 1988, that they would not be paid for travel
from portal to portal based on his opinion that the Act did not
require payment as "a miner is not traveling with an inspector
when he is traveling to meet an inspector." Further, paragraphs
7, 8, 9, and 10 of his affidavit set forth various business
pro·blems affecting Respondent's operation as a consequence of
UMWA's policy of requiring the representative of the miners
accompanying an inspector to be exclusively the Safety
Corrunitteeman.
Thus, I conclude that the act of discrimination against
Ammerman, by denying him full pay for travel in violation of
section 103Cf), supra, was motivated solely by business reasons.
Also, there is no evidence before me to conclude that there was
any bad faith on Respondent's part in interpreting section 103(f)
as not requiring pay for portal to portal travel. Taking these
factors into account, I conclude that a penalty herein of $100 is
appropriate.
ORDER
It is hereby ORDERED that:
1. Respondent shall pay a penalty of $100 within
30 days of this Decision.
2. Respondent shall, within 15 days of the date of
this Decision, pay Mike E. Airunerman for the 1 hour he had been
docked on April 7, 1988, and for the 15 minutes he had been
docked on April 8, 1988, with interest at a rate to be calculated
in accord with LOC. U. 2274, UMWA v. Clinchfeild Coal Co.,
10 FMSHRC 1443 (November 1988~et. for review filed, No. 88-1873
CDC Cir. December 16, 1988), and based on the formula set forth in
Secretary on behalf of Bailey v. Arkansas - Carbona Co., 5 FMSHRC
2042, 2051-53 (December 1983).
3. The Respondent shall immediately cease and desist
from further refusing to pat representatives of miners for travel
time from their work site portal to the portal site of an MSHA
in3pection.

1077

4. The employment record of Mike E. Ammerman shall,
immediately, be expunged of all references to the circumstances
involved in this matter.

Avram Weisberger
Administrative Law Judge
Distribution:
Michael L. Roden, Esq., Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Eugene P. Schmittgens, Jr., Esq., Peabody Holding Company, Inc.,
P. O. Box 373, St. Louis, MO 63166 (Certified Mail)
dcp

1078

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

22041

JUN 131989CONTEST PROCEEDINGS

JIM WALTER RESOURCES, INC •
. Contestant
v.

Docket No. SE 89-18-R
Citation No. 3188009; 10/26/88

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS;rRATION ( MSHA) ,
Respondent

Mine No. 7

AND
UNITED MINE WORKERS OF
AMERICA, CUMWA),
Intervenor
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA)
Petitioner
AND

CIVIL PENALTY PROCEEDING

.

Docket No. SE 89-39
A.C. No. 01-01401-03734
Mine No. 7

UNITED MINE WORKERS OF
AMERICA ( UMWA),
Intervenor
v.
JIM WALTER RESOURCES, INC.,
Respondent
DECISION AND
ORDER DISMISSING PROCEEDINGS
On May 26, 1989, an Order to Show Cause was issued in
these proceedings stating as follows:
At issue in the captioned cases is a citation
alleging as follows:
A citation is hereby issued in that the
mine operator is intending to adopt
System, Methane and Dust Control Plan
dated 8/15/88 which has not been approved
by the MSHA District Manager.
(Refer to
cover letter 9-lV-52 dated September 29,

107g

1988 and response cover letter 9-lV-52
delivered to the mine operator 10-25-88.
The violation charged. is thus one of
"intending" to violate the cited regulation.
Accordingly the Secretary is directed to establish
on or before June 8, 1989, what legal authority she
relies upon to provide the basis·for a violation of
"intending" to violate a regulatory standard and
why the citation should not be vacated and this
case be dismissed.
On June 6, 1989, the Secretary responded to the show
cause order stating as follows:
The subject citation was issued in accordance
with MSHA's policy regarding Mine Plan Approval
Procedures which was sent to all coal mine
operators ••••
In general, this policy sets forth
basic principles that are to be applied in the
administration of each District's mine plan and
program approval responsibilities.
The policy also describes several scenarios
wherein disputed plan provisions can be challenged
by operators with the resulting violation being
"technical" in nature. Such a policy provides a
vehicle for operators to contest disputed plan
provisions while maintaining the stability of
continued, safe mining operations under an approved
and familiar plan.
With respect to a contest of mine plan
approval actions, such as occurred in this case,
the policy states as follows:
In the case of an operator-proposed
change to an existing approved mine plan,
if approval of the change is denied, the
operator could notify the District th~
as of a certain date, the mine's existing
approved plan is no longer adopted by the
operator, and that the operator intends
to adopt the proposed change which is not
approved. On that date, a 104(a)
citation would be issued for the
operator'd failure to have and adopt an
approved plan. Abatement would be
achieved by the operator promptly
adopting the provisions of the most

1080

recently approved plan for the mine.
Again, thare need not be any changes made
in the actual mining procedures, and the
violation would be "technical" in nature.
(emphasis added)
Here, the operator, on September 29, 1988,
submitted a supplement to its ventilation system,
methane and dust control plan for approval by MSHA. The
supplement was reviewed by MSHA but was not approved for
incorporation into the operator's existing ventilation
plan. As set forth on the face of the subject citation,
MSHA's determination with respect to the supplement was
communicated to the operator on October 25, 1988 by
letter identified as 9-1V-S2.
On October 26, 1988, JWR informed MSHA that it
no longer adopted its existing approved plan for
the No. 7 mine. Since the operator's explicit
statement constituted a violation of 30 CFR 75.316,
the subject citation was immediately issued. The
operator promptly abated the violative condition by
readopting its ventilation plan that had become
effective in August, 1988.
Although the wording of the subject citation
is not a model of clarity , the foregoing sequence
of events makes clear that the subject citation was
issued because the operator unequivocally stated
that, as of October 26, 1988, it no longer adopted
its existing ventilation plan which had previously
been approved by. MSHA •••• Irrespective of the
operator's "intentions" to adopt the unapproved
supplement, JWR's action in not adopting an
approved plan constituted violation a of 30 CFR
75.316 since the regulation requires an operator to
do so.
Thus, the use of the words "intending to
adopt" on the face of the citation should not be
construed as an allegation that MSHA is charging
the operator with a speculative violation which
hinges on .TwR's future actions. Rather, the
citation, when viewed in the context of MSHA policy
and the documents attached hereto, prop~rly charges
JWR with not adopting an approved ventilation plan
pursuant to 30 CFR 75.316. The violation is
ad~ittedly technical in nature and permitted the
operator to safely continue its mining operations
uninterrupted under a familiar, approved plan while

1081

'.·:

enabling the specific supplement to be addressed in
another forum.
The Secretary's response to the show cause order is, in
essence, that she did not mean what she said when charging
the operator with "intending" to violate the cited regulatory
standard. She does not however seek to amend the citation so
that it reflects the apparent intended meaning. Since the
cited regulatory standard does not create a violation of
"intending" to violate it there can be no violation as
charged. The citation is accordingly vacated.
I further note that the proceedings described in the
Secretary's response to the Order to Show Cause are a clear
attempt to accomplish indirectly what the Commission has
forbidden directly i.e. obtain a declaratory judgment. In
Kaiser Coal Corporation, 10 FMSHRC 1165 (1987), the
Commission held that it does not have jurisdiction to
entertain an application for declaratory relief independent
of any of the enforcement or contest proceedings or other
forms of action authorized under the Federal Mine Safety and
Health Act of 1977. In this case the citation was
simultaneously "issued" and "abated" and according to the
Secretary, the mine operator continued its mining operations
uninterrupted under its approved plan--thereby contradicting
any claims of a violation. Thus in effect the parties in
this case are seeking a declaratory judgment that cannot be
obtained under existing law. For this additional reason then
these cases must be dismissed.
ORDER
Contest Proceeding Docket No. SE 89-18-R and Civil
Penalty Proceeding Docket No. SE 89-39 are dismidsed. The
hearings previously scheduled in these ca·es ara accordingly
cancelled.

1082

Distribution:
H. Thomas Wells, Jr., Esq., Maynard, Cooper, Frierson & Gale,
P.C., 12th Floor, Watts Building, Birmingham, AL 35203
(Certified Mail)
William Lawson, Esq., Office of the Solicitor, U.S.
Department of Labor, Suite 201, 2015 2nd Avenue, N.,
Birmingham, AL 35203 (Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900
15th Street, NW, Washington, DC 20005 (Certified Mail)
nt

1083

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

JUN 14 1989

.

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-235-M
A.C. No. 42-01975-05502

v.

Lakeview Rock Products Pit

LAKEVIEW ROCK PRODUCTS, INC.,
Respondent
DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Mr. Glenn E. Hughes, President, Lakeview Rock
Products, Inc., North Salt Lake City, Utah,
for Respondent.

Before:

Judge Lasher

This matter came on for hearing in Salt Lake City, Utah, on
May 11, 1989. At the commencement of hearing, the parties met
and discussed the amicable resolution of this matter. A
settlement of the four violations involved was ultimately reached
in which Respondent agreed to pay in full 3 of the 4 initial
penalty assessments ($20 each for Citations numbered 2650178,
2650179, and 2650217) and to pay a penalty of $50 in lieu of the
originally assessed $68.00 penalty for Citation No. 2650216.
Respondent established to Petitioner's satisfaction the presence
of economic difficulties and the parties agreed that this small
mine operator with a relatively modest history of prior violations (See Court Exhibit 1) should be allowed a 90-day period
within which to pay the penalties agreed on and here assessed.
The settlement appears appropriate and its approval at the
hearing is here affirmed.
Respondent, if it has not previously done so, is ordered to
pay to the Secretary of Labor within 90 days from the date of
receipt hereof the total sum of $110.00 as and for the civil
penalties above assessed.

~~~·/'4: ~~ ;i7"

Michael A. Lasher, Jr.
Administrative Law Judge

1084

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)
Mr. Glenn E. Hughes, President, Lakeview Rock Products, Inc.,
P.O. Box 258, 900 N. Redwood Road, North Salt Lake City, UT
84054 (Certified Mail)

/bls .

1085

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

JUN 15 1989
TROY W. CONWAY, JR.,
Complainant

.

v.

DISCRIMINATION PROCEEDING
Docket No. KENT 88-127-D

PEABODY COAL COMPANY,
Respondent

MADI CD 88-02
Camp 9 Preparation.Plant
DECISION

Appearances: C. Terry Earle, Esq., Earle & Baird, Greenville,
Kentucky, for Complainant;
Eugene P. Schmittgens, Jr., Esq., Peabody
Holding Company, St. Louis, Missouri, for
Respondent.
Before:

Judge Melick

This case is before me upon the Complaint by
Troy W. Conway, Jr., under section 105(c)(3) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq.,
the "Act, 11 alleging discrimination by the Peabody Coal
Company (Peabody) in violation of section 105(c)(l) of the
Act.l/ Mr. Conway alleges that he was laid-off on
October 30, 1987, in unlawful retaliation for his reporting
of safety and health related complaints to Peabody.
~/Section 105(c)(l} of the Act provides as follows:

No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any
miner, representative of miners or applicant for
employment in any coal or other mine subject to
this Act because such miner, representative of
miners or applicant for employment, has filed or
made a complaint under or related to this Act,
including a complaint notifying the operator or the
operator's agent, or the representative of the
miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or
other mine or because such miner, representative of
miners or applicant for employment is the subject

1086

In order to establish a prima facie case of
discrimination under section 105Cc) of the Act, a complaining
miner bea~s the burden of production and proof in
establishing that Cl) he engaged in protected activity and
(2) the adverse action complained of was motivated in any
part by that activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (1980),
rev'd on other grounds, sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 C3d Cir. 1981); Secretary on behalf
of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(1981). The operator may rebut the prima facie case by
showing either that no protected activity occurred or that it
was not motivated in any part by protected activity. If the
operator cannot rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it also
was motivated by the miner's unprotected activity and would
have taken the adverse action in any event for the
unprotected activity alone • Pasula, 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, 195-6 (6th Cir. 1983) specifically approving the
Cammi s s ion' s ·Pas ula-Robi net te test) • Cf • NLRB v.
Transportation Management Corp., 462 U.S. 393, 397-413 (1983)
approving a nearly identical test under the National Labor
Relations Act.
The evidence shows that Troy Conway, Jr., a 30 year old
miner, was employed by Peabody during relevant times as a nonunion lab technician at the Camp No. 9 Preparation Plant. It
is undisputed that in the course of his work in testing coal
samples and specifically in performing float/sink analyses,
the chemical perchlorethylene was used. Further it is
undisputed that pecchlorethylene can be hazardous and that
protective clothing should be worn when performing such
analyses (See Exhibit R-1).
cont'd fn.l
of medical evaluations and potential transfer under
a standard published pursuant to section 101 or
because such miner, representative of miners or
applicant for employment has instituted or caused
to be instituted any proceeding under or related to
this Act or has testified or is about to testify in
any such proceeding, or because of the exercise by
such miner, representative of miners or applicant
for employment on behalf of himself or others of
any statutory right afforded by this Act.

1087

According to Conway, he learned on October 8, 1986, from
Warehouse Clerk Markham that Markham had received a
"breakdown sheet," apparently the manufacturer's document
explaining the hazards related to perchlorethylene, but
Conway was unable to obtain the sheet from Markham.
Conway claims that he then went to company Safety
Director Larry Cleveland and Acting Superintendent Kenny
Luckhurst on October 9 or 10, to obtain the information but
that Cleveland told him "he didn't get anything new that day".
Conway testified that he then went to see his father,
Troy P. Conway, Sr., who was Chairman of the Union Safety
Committee, to help obtain the "breakdown" or "MSDS Sheet" on
the subject chemical. Conway acknowledges that three days
later he received a copy of the requested "MSDS Sheets" from
his foreman Keith McNew.
According to Conway, lab conditions also changed that same
day when McNew posted warning signs throughout the preparation
plant noting as follows:
"Do not enter without respirator, or
protective clothing". Conway also testified that 2 or 3 days
after he received the "MSDS" sheet the lab workers also
received additional respirators, protective gloves, splash
goggles and full-length protective aprons. Conway believed
that he was responsible for these changes as a result of his
request for the "MSDS" sheet.
Conway maintains that thereafter Mine Superintendent Wes
Shirkey harrassed him, verbally abused him and accused him of
failing to perform his work. Shirkey purportedly also told
Conway that he had an "attitude problem", hung around the union
people too much, and stirred up too much trouble.~/
~/ Conway also testified that h~ complained to Shirkey in
1985 after he became sick from fumes in the preparation plant
and on another ocassion asked Shirkey for a fan to suck the
coal dust out of the raw coal room of the preparation
plant where they worked. While Conway at first alleged that
because of these complaints Shirkey retaliated by complaining
that he was "stirring up the lab people" Conway concedes that
Shirkey later told his father that he made a mistake and was no
longer accusing him (Conway) of stirring up the lab people as a
result of these complaints. Conway accordingly appears to
acknowledge that these accusations and activities no longer
have a bearing on the instant case.

1088

Troy P. Conway, Sr., was, during relevant times, chairman
of the mine committee and member of the safety committee of the
local union, and preparation plant mechanic. The senior Conway
testified that on October 10 his son reported that he had been
refused a copy of the health sheet breakdown (presumably for
perchlorethylene). Conway senior testified that the next day
he went to see Cleveland and Luckhurit. Luckhurst purportedly
told Conway that "you and little Troy is [sic] going to have to
quit stirring up the union and the company people over this
perc". Shirkey later told him that he knew of Troy, Jr.'s
complaint about the breakdown sheets.
The senior Conway also testified about a later incident,
on March 24, 1989, following a complaint about alleged
violations in failing to provide rubber mats to protect welders
from electrocution. It is not disputed that Shirkey said in
regard to the complaint that it was "bull shit" and that he
would have to fire someone on the safety committee over this.
It is also not disputed that Shirkey on another occasion
referred to a miner who filed a "103(g)" safety complaint as a
"dirty mother fucker".
Within this framework of evidence it is clear that the
Complainant made protected safety and health complaints to a
representative of miners, Troy Conway, Sr., concerning the
failure of Peabody to provide "breakdown" or "MSDS" sheets
describing the hazardous nature of the chemical
perchlorethylene being used by the Complainant at that time.
Furthermore the testimony of Troy Conway, Sr., is undisputed
that Shirkey acknowledged to him that he knew of Troy, Jr.'s
complaint to the Union Safety Committee. Moreover the senior
Conway's testimony that Assistant Mine Superintendent Kenny
Luckhurst told him that "you and little Troy are going to have
to stop stirring up the union and the Company people over this
perc" is not disputed. When this evidence is considered in
conjunction with the undisputed testimony of the senior Conway
that Shirkey cursed and threatened other employees for
reporting safety violations, it may reasonably be inferred that
Peabody management would have been motivated to retaliate
against the junior Conway for his protected activities.
The credible evidence also shows that in 1986, mine
management was reluctant to reveal to its lab personnel the
hazardous nature of the chemical perchlorethylene. Whether or
not the posting of warning signs and the issuance of a
memorandum preceded the Complainant's request of the specific
"MSDS" warning data issued by the chemical manufacturer it is
clear that this request triggered a retaliatory threat
communicated to the senior Conway by Assistant Mine
Supecintendent Luckhurst. It is also clear that following
these protected activities by the Conways, additional
protective gear was provided to lab pers~nnel. Under the

1089

circumstances Conway has established a prima facie case of
unlawful discrimination. Pasula, supra.
On the facts of this case however I find that the operator
has proven by its affirmative defense that it would have taken
the adverse action of laying-off the Complainant in any event
for the stated economic reasons and not based upon any
protected activity. Pasula,· supra. The evidence in this
regard is as follows. Wesley Shirkey testified that he was
sent in July 1984, to supervise the Camp No. 9 Preparation
Plant because the plant had not been up-to-par. He explained
that before the lay-offs in October 1987, they had been
receiving coal to be processed at the No. 9 Preparation Plant
from the Camp No. 1, No. 2, and No. 11 Mines. In October 1987,
the Camp No. 11 Preparation Plant closed down and the entire
sampling process changed because the analytical value of the
coal changed. Accordingly testing was no longer needed every
30 minutes and one senior lab technician job on each shift was
no longer needed. The lay-off of Conway and another senior lab
technician therefore followed.
In determining which personnel would be laid off Shirkey
testified that he considered company-wide seniority and job
evaluations. According to the undisputed testimony of Shirkey,
Conway, Jr. was the second least senior lab technician
company-wide. As a result Conway and Paul Brown, the least
senior company-wide lab technician, were laid off. In addition
to the Complainant's lack of seniority, Shirkey noted that
Conway had been reprimanded for failing to perform significant
job duties in early 1987. Conway had reportedly falsified coal
samples and failed to have taken samples.
Peabody Foreman William McNew testified that he was not
involved in the decision to lay-off employees in October 1987.
McNew testified that he caught Conway in September 1986, and
again in February 1987, failing to collect his required coal
samples. In February 1987 he verified Conway's neglect of duty
by marking the level and the weights of the samples in Conway's
sampling buckets. There was no change in the level of the
material in Conway's sampling buckets after several days and
some of the weights of the samples actually decreased. If
proper sampling was being performed the weights of the samples
and the quantity of samples in the buckets should have been
increasing. Conway was issued a letter of reprimand for this
neglect in his work and the related false entries he made in
his logs.
The operator's evidence in support of its lay off decision
is credible and has not been rebutted by Conway. Under the

1090

circumstances the operator has successfully defended itself by
affirmatively proving that it would have taken the adverse
action of laying off Mr. Conway in any event for unprotected
reasons alone. Pasula, supra., Robinette, supra.
ORDER
Discrimination Proceeding Docket No. KENT 88- 27-D is
hereby dismissed.

~
ck
I

Gary Mel
Administ ative
(703) 75 6261
Distribution:

c. Terry Earle, Esq., Earle & Baird, PO. Box 141,Greenville,
KY

42345 (Certified Mail)

Eugene P. Schrnittgens, Jr., Esq., Peabody Holding Company,
Inc., 301 North Memorial Drive, P.O. Box 373, St. Louis, MO
63166 (Certified Mail)
nt

1091

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

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

jUN 15 1989

CIVIL PENALTY PROCEEDING

.

Docket No. WEST 88-233
A.C. No. 42-01211-03544
Trail Mountain #9 Mine

v.
BEAVER CREEK COAL COMPANY,
Respondent

DECISION
Appearances:

Robert J. Murphy, Esq., John J. Matthew, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Petitioner;
Charles W. Newcom, Esq., Sherman & Howard, Denver,
Colorado,
for Respondent;
David M. Arnolds, Esq., Atlantic Richfield Company,
Denver, Colorado,
for Respondent.

Before:

Judge Cetti

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seg., the "Act". The
Secretary of Labor, on behalf of the Mine Safety and Health
Administration, (MSHA), charged the operator of the Beaver Creek
Coal Company, Trail Mountain Mine #9 (Beaver Creek) with
violating three safety regulations of ~itle 30 Code of Federal
Regulations.
The operator filed a timely appeal contesting the existence
of the alleged violations and the appropriateness of the proposed
penalties.
The case was set for hearing on the merits at the same place
and time as other cases involving the same parties were heard on
the merits. At the hearing counsel for the Secretary on the
record stated the parties had reached an agreement and the
parties jointly moved for approval of the proposed settlement
disposition which provides as follows:
Citation No. 3224935
This citation alleges a violation of 30 C.F.R. § 75.316.
Beaver Creek moved to be permitted to withdraw its· contest and
pay in full the Secretary's proposed penalty of $20.00.

1092

Order No. 3224936
The Order alleges a violation of 30 C.F.R. § 75.316. The
Secretary moved to redesignate this 104(b) Order to a Section
104Ca) - S & S Citation. Beaver Creek Coal Company agreed to
withdraw its contest to the newly designated Section 104Ca) S&SCitation and pay the new proposed penalty of $100.00.
Citation No. 3227100
The citation alleges a violation of 30 C.F.R. § 75.902. The
Secretary moves to vacate this citation and its related proposed
pena~ty due tti an insufficiency of evidence.
Discussion
There was no objection to the motions of the parties.
The
motions are granted. In support of this proposed disposition of
the case the parties submitted information pertaining to the six
statutory civil penalty criteria found in section llOCi) of the
Act. After careful review and consideration of the pleadings,
arguments, and submissions I find that the proposed disposition
is reasonable, appropriate, and in the public interest.
ORDER
The joint motion for approval of the agreed settlement
disposition is granted.
The respondent is directed to pay a
civil penalty in the sum of $120.00 within 30 days of the date of
this decision.

Judge
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)
Susan K. Grebeldinger, Esq., Sherman & Howard, 3000 First
Interstate Tower North, 633 Seventeenth street, Denver, CO
(Certified Mail)

80202

David M. Arnolds, Esq., Thomas F. Linn, Esq., 555 Seventeenth
Street, Denver, C0.80202 (Certified Mail)
/bls

1093

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

JUN 151989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-159
A.C. No. 42-01211-03540

v.

Trail Mountain #9 Mine
:

BEAVER CREEK COAL COMPANY,
Respondent
DECISION
Appearances:

Robert J. Murphy, Esq., John J. Matthew, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Petitioner;
Charles W. Newcom, Esq., Sherman & Howard, Denver,
Colorado,
for Respondent;
David M. Arnolds, Esq., Atlantic Richfield Company,
Denver, Colorado,
for Respondent.

Before:

Judge Cetti

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act". The
Secretary of Labor, on behalf of the Mine Safety and Health
Administration, CMSHA), charged the operator of the Beaver Creek
Coal Company, Trail Mountain Mine #9 (Beaver Creek) with
violating nine safety regulations of Title 30 Code of Federal
Regulations.
The operator filed a timely appeal contesting the existence
of the alleged violations and the appropriateness of the proposed
penalties.
The case was set for hearing on the merits at the same place
and time as other cases involving the same parties were heard on
the merits. At the hearing counsel for the Secretary on the
record stated the parties had reached an agreement and the
parties jointly moved for approval of the proposed settlement
disposition which provides as follows:
Citation No. 3227086
This citation alleges a violation of 30 C.F.R. S 75.400.
The Secretary moved to vacate this citation and its related
proposed $98.00 penalty due to an insufficiency of evidence.
1094

Citation No. 3227087
This citation alleges an accumulation of combustible
materials in violation of 30 C.F.R. § 75.400. Beaver Creek Coal
Company moved to withdraw its contest of the existence of the
violation and penalty and pay in full without change the
Secretary's $147.00 proposed penalty.
Citation Nos. 3227090, 3227092, 3227093, 3227094, 3227095,
3227096, and 3227098
The Secretary advises that these recordkeeping citations
were issued to Beaver Creek coal Company in error.
The Secretary
moved to vacate the citations with respect to Beaver Creek.
The
citations have been modified and reissued to Beaver Creek's
predecessor operator of Trial Mountain #9 Mine, Arch Minerals.
Discussion
There was no objection to the motions of the parties. The
motions are granted. In support of this proposed disposition of
the case the parties submitted information pertaining to the six
statutory civil penalty criteria found in section llOCi) of the
Act. After careful review and consideration of the pleadings,
arguments, and submissions I find that the proposed disposition
is reasonable, appropriate, and in the public interest.
ORDER
The joint motion for approval of the agreed settlement
disposition is granted.
The respondent is directed to pay a
civil penalty in the sum of $147.00 within 30 days of the date of
this decision.

nistrative Law Judge
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)
Charles W. Newcom, Esq., Sherman & Howard, 3000 First Interstate
Tower North, 633 Seventeenth Street, Denver, CO 80202 (Certified
Mail)
David M. Arnolds, Esq., Thomas F. Linn, Esq., 555 Seventeenth
Street, Denver, CO 80202 (Certified Mail)
/bls
1095

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

JUN 15 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-300-M
A.C. No. 05-03211-05502

v.

Breezy Mine

URRALBURU MINING COMPANY,
Respondent
DECISION
Appearances:

Jim D. Rogers, Esq., Robert J. Murphy, Esq., Office
of the Solicitor, U.S. Department of Labor, Denver,
Colorado,
for Petitioner.

Before:

Judge Lasher

This matter arises upon the filing of a proposal for penalty
by the Secretary of Labor on September 26, 1988, seeking
assessment of a civil penalty against Respondent for a violation
of 30 C.F.R. 57.5039 contained in Citation No. 2640417, dated May
4, 1988.
The subject citation was issued by Inspector Dennis J.
Tobin pursuant to the provisions of Section 104(a) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815Cd) (1977),
and charged the Respondent with the following violative condition
or practice:
"The two miners working in the hea!ling were exposed to 5.78
W.L. radon in the 3004 haulage and 1.38 W.L. radon in the incline.
The maximum allowable exposure is 1.0 W.L. radon. A re-sample
indicated 2.72 W.L. at the bottom of the incline and 1.13 W.L.
in the 3003 haulage.
Levels in the incline were measured at nil.
A close examination of the ventilation indicated recirculation of
the mine air at the fan."
At the hearing in this matter in Denver, Colorado on April
26, 1989, Petitioner, as above indicated, was represented by
legal counsel. Respondent, which the record shows received
actual notice of the hearing (a Postal Service green card
attached to the notice of hearing in the Commission's official
case file reflects receipt of the notice of hearing by certified
mail on March 27, 1989), neither appeared nor advised the
Presiding Judge or counsel for Petitioner of its intent not to

1096

appear.
In such circumstances, the testimony of the issuing
inspector, Dennis J. Tobin, was submitted on the record under
oath in support of the Petitioner's position together with
certain documentary evidence. Based thereon, at the close of
hearing, this bench decision was issued •.
Turning specifically to Citation No. 2640417, the record
indicates that the citation in question was issued by Inspector
Tobin on May 4, 1988, during an inspection of Respondent's Breezy
Mine. At this time, Inspector Tobin went underground at
Respondent's uranium mine and observed two miners picking up
broken ore.
Inspector Tobin took three radon samples on three
calibrated devices for measuring such, all in accordance with his
prior training related to the detection of airborne contaminants
and matters involving toxicology.
Inspector Tobin, whose
experience in mining generally and in the field involved here
specifically is impressive, testified that upon returning to the
surface he encountered Mr. Urralburu, the operator of the mine,
and that Mr. Urralburu was alarmed at his readings which
indicated high radiation.
The inspector returned underground
with Mr. Urralburu and "resampled" in his presence the readings,
all of which are reflected in the citation.
The regulation charged by MSHA to have been infracted in
this instance, 30 C.F.R. § 57.5039, entitled Maximum Permissible
Concentration, provides: "Except as provided by standard Section
57.5005, persons shall not be exposed to air containing
concentrations of radon daughters exceeding 1.0 W.L. in active
workings."
In his only communication in this matter, a letter dated
October 21, 1988, Mr. Urralburu indicated that he felt a penalty
was not called for since there had been a cave-in the night prior
to the inspection and that because of the cave-in the exhaust fan
in the mine had been restricted to a half flow "in the borehole."
Mr. Urralburu went on to point out that the cave-in was repaired
and ventilation was properly restored.
Inspector Tobin, who
testified under oath, indicated that the explanation for the
violation, if such it be, contained in Mr. Urralburu's letter was
not meritorious because the violation would have continued if the
excessive radon levels had not been detected during his
inspection and Inspector Tobin was of the opinion that it was as
a result of his radon sampling that Respondent became aware of
the excessive radon levels cited.
It does appear, and Petitioner
concedes, as Mr. Urralburu indicates in his letter that abatement
of the violative condition was achieved and that Respondent
proceeded in good faith to achieve rapid compliance with the
violated standard after notification of the vio~ation.
Accordingly, it is found that the violation cited in
Citation No. 2640417 occurred as charged and that an appropriate

1097

penalty must be assessed. Based on information in this record,
it is concluded that this mine operator was found to be a small
mine operator who had operated the subject Breezy Mine for a
period of at least 15 years.
Looking at the Respondent as a
specific individual, that is, Mr. Ben urralburu, it is found
based on the inspector's testimony that he has a limited
education and that this was the first time he had been cited for
this specific type of violation.
These factors entered the
inspector's judgment in attributing a "moderate" degree of
negligence to the violation, and I agree.
This violation is
found to be serious in deference to the inspector's opinion as to
the propriety of this characterization and also his evidence
indicating that inhalation of radioactive radon gases at the
levels detected and documented by him exposed the two miners who
were present on May 4, 1988, to the hazard of lung cancer.
The record does not reflect, and Respondent has not
established, of course, at the hearing, or in pre-trial
submissions prior to the hearing, that assessment of penalties at
the level sought by Petitioner would jeopardize its ability to
continue in business. The Respondent mine operator has a history
of two previous violations (Exhibit P-1).
In the premises, Petitioner's initial assessment of $20. O.O
for this violation is found appropriate and is here assessed.
ORDER
Citation No. 2640417 is affirmed.
Respondent is ordered to pay to the Secretary of Labor
within 30 days the sum of $20.00.

t7)11:c~~.e_d'- . ~~~--- n Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Robert J. Murphy, Esq., Jim D. Rogers, Esq., Office of the
Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961
Stout Street, Denver, CO 80294 (Certified Mail)
Mr. Ben Urralburu, Urralburu Mining, P.O. Box 310, Nucla, CO
81424 (Certified Mail)

/bls

1098

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

22041

JUN 191989
DISCRIMINATION PROCEEDING

PAULA L. PRICE,
Complainant

v.

:

Docket No. LAKE 86-45-D
VINC CD 85-18
Monterey No. 2 Mine

MONTEREY COAL COMPANY,
Respondent
. DECISION
Appearances:

Before:

Linda Krueger MacLachlan, Esq., and
Michael J. Hoare, Esq., 314 N. Broadway,
St. Louis, Missouri £or the Complainant
Thomas C. Means, Esq., Crowell & Moring,
Washington, D.C. for the Respondent.

Judge Melick

This proceeding is before me to determine the amount of
attorney's fees and costs to be allowed based upon the
April 12, 1989, decision finding that Monterey Coal Company
discriminated against the Complainant in violation of Section
105(c)(l) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq., the "Act".
The Complainant first cites expenses of $187.36 incurred
in connection with the prosecution of her grievance
proceeding below in which she obtained lost pay resulting
from the acts of Monterey Coal Company also held to have been
discriminatory in this case. She also seeks reimbursement
for her costs in prosecuting the instant case of $28,758.77
including attorney's fees and expenses of $24,107.79.
Monterey opposes the award of fees and expenses
maintaining that Cl) an award of fees and expenses is
unauthorized under the circumstances of the case and (2) the
requested fees and expenses radically exceed any conceivable
fee and expense entitlement.
Section 105(c)(3) of the Act provides in part as folows:
Whenever an order is issued sustaining the
complainant's charges under this subsection, a sum

1099

equal to the aggregate amount of all costs and
expenses (including attorney's fees) as determined
by the Commission to have been reasonably incurred
by the miner, applicant for employment or
representative of miners for, or .in connection
with, the institution and prosecution of such
proceedings shall be assessed against the prson
committing such violation.
The evidence shows- that the Complainant first raised the
issue 0£ her lost pay in a grievance proceeding under the
corresponding collective barganing agreement for essentially
the same reasons and based on the same grounds as her
successful complaint herein. As the record indicates she
prevailed in those proceedings to the extent that she
obtained four days back pay--but she was denied her related
expenses in prosecuting that case. It may reasonably be
inferred however because of the close similarity of issues
that those expenses were also directly related to the
development of evidence necessary for the instant case.
I therefore find that those expenses were sufficiently "in
connection with the institution and prosecution" of the
instant proceedings to warrant assessment of such expenses
against Monterey.
Monterey also maintains that the Complainant's grievance
was settled by the union without agreement to compensate her
for the cost of the proceedings and that therefore she may be
deemed to have waived any right to reimbursement for those
expenses. The evidence in the case shows however that Ms.
Price did not consent to the settlement of her grievance by
the union and had no choice in the matter -- the decision to
settle was made by the union.
Next, Monterey challenges the amount of grievance
proceeding expenses cited by the Complainant on the
grounds that she had previously estimated those expenses to
be only $25. The Complainant cannot fairly be bound however
by a rough estimate of expenses made from the witness stand
without her documentation. In the absence of any other
challenge to the amount of the expenses claimed, the
Complainant is awarded her full claim of $187.36.
I find however that reduction of the claimed attorney's
fees and trial expenses is clearly warranted in this case.
The Complainant is entitled to only those costs and expenses
"reasonably incurred". Section 105(c)(3) supra.

1100

In determining a reasonable attorney fee the most useful
starting point is the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate.
Hensley v. Eckerhart, 461 U.S. 424 (1~83). Copeland v.
Marshall 641 F.2d 880 CD.C. Cir. 1980). Where the prevailing
party has achieved only partial or limited success however
the product of hours reasonably expended in litigation as a
whole times a reasonable hourly rate may be an excessive
amount. Hensley, supra. There is no precise rule or formula
far making a determination for reduction of an award to
account for a limited success and the court necessarily has
discretion in making this equitable judgment. Hensley, supra.
In this regard it is noted that while the Complainant herein
alleged 31 protected activities and 14 acts of discrimination
she prevailed on only one allegation of discrimination. Many
of the unsuccessful claims were indeed facially frivolous.
Another factor that may be considered in determining an
appropriate fee is the quality of representation. See
Copeland, supra. at 906 - 908. I find in this case that the
inordinate length of trial i.e. 12 days, in a case that
should have been tried in no more than two days, is
chargeable to Complainant's trial counsel. Her lack of
preparation, lack of focus, lack of understanding of the law,
frequent and extraordinary delays between questions and her
repeated failure to promptly appear and be ready for trial
sessions in this case clearly justifies a ,significant
reduction in the hours reasonably spent both for attorney's
fees and the Complainant's own expenses.
Considering the above factors I find that attorney's
fees and expenses in the amount of $4,000 and Complainant's
other expenses in the amount $800 are appropriate.

1101

ORDER
Monterey Coal Company is directed to pay to the
Complainant within 30 days o~ the date of this decisio
attorney's fees and other expenses of $4,9 7.36.

Distribution:
Michael J. Hoare, Esq., 314 North Bro dway, St. Louis, MO
63120 (Certified Mail)
Thomas C. Means, Esq., Crowell & Moring, 1001 Pennsylvania
Avenueo, NW, Washington, DC 20004-2505 (Certified Mail)
nt

1102

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

22041

JUN 191989
CIVIL PENAL'rY PROCEEDINGS

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

Docket ~o. W8VA 89-22
A.C. No. 46-01453-03831

v.
Humphrey No. 7 Mine
CONSOLIDATION COAL COMPANY
Respondent

Docket No. WEVA 89-24
A.C. No. 46-01968-03782

and
Blacksville No. 2 Mine
SECRE:'rARY OF T.. ABOR,
MINE SA~ETY AND HEALTH
ADMINIS'rRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING

.

Docket ~o. WEVA 89-39
~.c. No. 46-01437-03643
McElroy Mine

McELROY COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Page H. Jackson, Bsq., ~obert s. Wilson, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Petitioner;
Michael R. Peelish, Esq., Consolidation Coal Co.,
Pittsburgh, Pennsylvania, for the Respondents.

Judge Maurer

These cases are before me upon petitions for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801, et~., (the Act).
Pursuant to notice, a hearing ~as commenced in Morgantown,
West Virginia on ~pril 18, 1989. At that hearing, prior to the
taking of any testimony, the parties proposed a settlement
agreement. The petitioner pt:'oposed reducing the specially
assessed penalty for Order No. 3113502 fran $1000 to $800 based
on a reduced likelihood oE occurrence upon re-examination of the
factual circumstances surrounding the violation.
1 approved that
motion at the hearing and that disposed of Docket ~o. WEVA 89-22.
In Docket ~o. WEVA 89-24, I approved a reduction in the aggregate

1103

civil penalty from $412 to $256 for two§ 104(a) citations, one
of which was changed from significant and substantial (S&S) to
non-S&S.
In Docket No. WEVA 89-39, Order No. 2943749 was
modified to a citation issued pursuant to§ 104(a) of the Act and
the civil penalty proposal reduced from $900 to $300. Petitioner
also proposed reducing the specially assessed penalty for
§ 104Cd)(2) Order No. 3106822 from $1000 to $800 based on a
reduction in the number of persons affected by the violation.
The respondent has agreed to pay these amounts in full settlement
of the cases. I have considered these matters in that light and
under the criteria for civil penalties contained in§ llOCi) of
the Act and I conclude that the proffered settlements are
appropriate.
Pursuant to the Rules of Practice before this Commission,
this written decision confirms the bench decision I rendered at
the hearing, approving the settlements.
WHEREFORE IT IS ORDERED that respondent shall pay the
approved civil penalty of $2156 within 30 days of this decision
and upon such payment, these proceedings ARE DISMISSED.

Roy J.: Maurer
Adminifstiative Law Judge
Distribution:
Page H. Jackson, Esq., Robert S. Wilson, Esq., U.S. Department of
Labor, Office of the Solicitor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203
(Certified Mail)
Michael R. Peelish, Esq., 1800 Washington Road, Pittsburgh,
PA 15241
(Certified Mail)
/ml

1104

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

June 20, 1989
CONTFST PROCBEDING

CONSOLIDATION COAL COMPANY,
Contestant

Docket No. WEVA 88-290-R
Order No. 3106688; 6/6/88

v.

Blackville ~o. 1 Mine

SECRETARY OF LABOR,
MINB SAFETY AND.HEALTH
AbMINISTRATION, (MSHA)
Respondent

~ine

ID

46-01867

CIVIL PF.NALTY PROCEEDING

OF LABOR,
MINE SAFETY AND HBALTH
ADMI~ISTRATION, (MSHA)
Petitioner

SF.CR~TARY

Docket No. WEVA 89-4
A. C. No. 46-01867-03772
Blacksville No. 1 Mine

v.
CONSOLIDATION COAL COMP&~Y,
Respondent
DECISION
Appearances:

Michael R. Peelish, Esq., Pittsburgh,
Pennsylvania, for Consolidation Coal
Company;
Jack F. Strausman, Esq., Office of the
Solicitor, .Z\rlington, Virginia, for
the Secretary of Labor.

Before:

Judge Merlin

These cases are a petition for the assessment of a civil
penalty filed by the Secretary of Labor against Consolidation
Coal Company and the related notice of contest filed by Consolidation against the Secretary pursuant to section 110 of
the Federal Mine Safety and Health Act of 1977 and sections
2700.20 et seq., and 2700.25 et seq., of Commission regulations; 30 u.s.c. § 820; 29 C.F.R. § 2700.20 et~· and
29 C.F.~. § 2700.25 et seq.
At issue is an alleged violation
of section 75.322 of the Secretary's regulations which is a
restatement of section 303(u) of the Act.
30 C.F.R. §75.322;
30 u.s.c. § 863(u).
Also in question is whether the alleged
violation which was cited in a withdrawal order issued under
section 104(d)(2) of.the Act, 30 u.s.c. § 814(d")(2), resulted
from unwarrantable failure.
~dditional issues are whether
the asserted violation was significant and substantial and
the appropriate amount of civil penalty, if any, co be

1105

assessed.
A hearing was held on May 9, 1989, and posthearing briefs have now been filed.
In accordance with the stipulations agreed to by the parties
and in light of other information submitted by them at the hearing
I find (1) I have jurisdiction in this matter; (2) the operator's
size is large; (3) the operator's history is as submitted by the
Solicitor; (4) imposition o.f a penalty will not affect the
operator's ability to continue in business; and (5) the alleged
violation was abated in good faith.
~he subject section 104(d)(2) withdrawal order,
No. 3106688, dated June 6, 1988, sets forth the allegedly
violative condition as follows:

Work was started on changing the ventilation of
the main air currents of the P-6 and P-5 areas while
power was on the affected areas and with 14 persons
working on setting up the new longwall equipment in
the affected area.
Pete Turner foreman was instructed by the mine foreman Jack Lowe to erect a
permanent stopping across the P-5 supply track
haulage to the longwall set-up.
~~ the same time
the mine foreman was having check curtains installed
on the P-6 area and was taken [sic] air reading of
the air currents.
30 C.F.R. § 75.322 and 30 U.S.C. § 863(u) provide:
Changes in ventilation which materially affect
the main air current or any split thereof and which
may affect the safety of persons in the coal mine
shall be made only when the mine is idle.
Only
those persons engaged in making such changes shall
be permitted in the mine during the change.
Power
shall be removed from the areas affected by the
change before work starts to make the change and
shall not be restored until the effect of the change
has been ascertained and the affected areas
determined to be safe by a certified person.
~he MSHA Inspector's Manual (March 1978) states the
policy applicable to section 75.322 in this manner:

Changes in mine ventilation which affect any
split or main air current, including any change
which increases or decreases the volume of air
flowing to any split or main air current, shall be
thoroughly checked to insure that no split has been
affected in such a way as to cause a hazard to the
miners.

/

1106

Any ventilation change in which any split of
air is to be increases [sic] or decreased by an
amount equal to or in excess of 9,000 c.f .m. shall
be made only when the mine is idle. Before mine
power can be restored in all areas affected by such
ventila~ion changes, an examination is required as
in Section 75.303.
MSHA Inspector, George Phillips, arrived on the P-6
section of the operator's Blacksville No. 1 Mine at about
8:15 a.m., June 6, 1988 (Tr. 16). At that time the operator
intended to begin mining the new P-6 longwall face (Tr. 16,
325). The mine is on a section 103(i), 30 U.S.C. § 813(i),
inspection cycle since it liberates the amount of methane
specified in the Act (Tr. 13, 38). Mr. Phillips proceeded up
entry 3, the track, of the P-6 section (Tr. 17).1/ After he
passed the last open crosscut on his left, he noticed that air
was flowing in an outby direction and hitting him in the face
(~r. 17).
It is agreed that this outby air flow was wrong and
that it should have been going inby on the P-6 entries and
thereafter along the longwall face from the headgate to the
tailgate (Tr. 18-19, 282). The inspector testified that the
airflow was reversed on both sides of the block of coal (~)
which was immediately outby the headgate and between entries 3
and 4 (Tr. 28-29). He walked around that block of coal and
found a check curtain (E) missing on the left side (Tr. 22).
The inspector took air readings at two locations (A and B) on
the P-6 section and was satisfied with the air movement he
found (Tr. 29-30). From these readings he calculated the
reverse airflow as 7,560 c.f.m. (Tr. 30, 32, 33).
The operator's mine foreman, Jack Lowe, arrived on the
section at roughly 8:30 a.m. and therefore was on the P-6 section at the same time as the inspector (Tr. 264). He took
several air and methane readings all of which, like the inspector's readings, were satisfactory (Tr. 265-270). The foreman
then walked inby on entry 1 of the P-6 section until he
reached the door (W) and went through that door which he said
was cracked open 6 to 8 inches, into bleeder entry 3 (Tr. 269,
270). He proceeded all the way down bleeder entry 3 out into
1/

All references are to the mine map admitted as Joint
1 and to the markings made thereon by the
witnesses. MSHA witnesses used letters and operator witnesses
used numbers to mark locations.
A facsimile of this map is
attached to this decision as an Appendix. For added convenience, the bleeder entries have been numbered in accordance
with the testimony (Tr. 235).
~xhibit ~o.

1107

a crosscut in the P-5 section (Tr. 271). This crosscut was
between P-5 entries 3 and 4~/ and just inby the tailgate area
of the new longwall face (Tr. 271).
Tn other words, the foreman went from P-6 to P-5 by crossing through the bleeders.
He
had previously given orders that a stopping (J) be built at
this crosscut, but at this time actual building had not yet
begun (Tr. 271).
At about 9:30 a.m. he took an air and
methane reading (5) near where the stopping was going to be
erected, and another reading (6) near the regulator CR)
(Tr. 271, 275)3/.
Be took additional readings further inby
P-5 ('T'r. 27 6) 4 I.
'I'he foreman then returned to the bleeders
where in the crosscuts at the longwall face he found a loose
check curtain (~),a down curtain (L) which he put back, and a
very loose curtain (M) (~r. 277).
He took readings at the
longwall and found that the air direction was from the
headgate to the tailgate which was the way it was supposed
be (Tr. 278).
He then backtracked the way he had originally
come down bleeder entry 3 and through the door (W), once again
into P-6 entry 1 (Tr. 279).

to

It was at this point that the inspector and the foreman
met (~r. 28, 278-279). The inspector told the foreman about
the reverse airflow (Tr. 28). The foreman said he would try
to correct the situation by moving some check curtains
(Tr. 29, 280). The for6nan made some curtain adjustments, but
they did not affect the reverse airflow (Tr. 282-283).
~he inspector then travelled across bleeder entry 4 to
the P-5 section where he took an air and methane reading (C)
inby the tailgate area in entry 4 of P-5 (Tr. 39, 46-47). He
then walked through a mandoor (H) back into the bleeders
(Tr. 45, 47).
Proceeding a short distance down the nearest
bleeder crosscut, he found three men puilding a permanent
stopping (J) in the crosscut between entries 3 and 4 in the
bleeder tailgate area (Tr. 49).
As already noted, this is the
stopping the mine foreman testified he had ordered built. At
the time the inspector arrived, only the two top tiers of the

~/ Fntries in the P-5 section are marked in reverse order
on the map.
Since the error was not discovered until late in
the hearing, T ruled that for purposes of this case we would
keep the map marked the way it was ('T'r. 273).
~/ ~he letter R was used on the map to designate the
regulator in P-5 as well as an outby roof fall in P-6, noted
infra.

~/ Because the location of these readings are far inby on
P-5, they do not appear on the facsimile map attached as an
appendix to this decision, but they do appear on
Joint Exhibit 1.

1108

stopping (about 16 inches) had not been installed (Tr. 55).
inspector observed that the door in the stopping was open
(Tr. 109-110). ~he inspector then went into bleeder entry 3
where he took an air reading (D) (Tr. 54).
The air velocity
was 23,220 c.f .m. • The inspector did not remember whether he
issued the subject withdrawal order before or after he took
this reading (Tr. 109). The order bears a time of 11:20 a.m.
( Govt • Fxh • 4 ) •
~he

There is no dispute that the operator's ventilation plan
required that the stopping (J) be built before mining on the
new longwall face started (Tr. 215-216). The purpose of the
stopping was to reduce the air flowing into the bleeders
directly from the P-5 section and instead force the air outby
P-5 and then up the P-6 intake entries so it would flow across
the longwall face with sufficient velocity for mining to begin
(Tr. 165-166, 287, 293).
It was also thought that erection of
the stopping would correct the reverse airflow which the
inspector found (Tr. 64, 287).
The operator admits that power was on and that there were
14 people in the area ·cTr. 74). The inspector believed that
the change in air direction and/or the increase in air velocity caused by erection of the stopping could possibly push
methane out of two roof fall cavities CR and 8) outby in P-6
and out of one fall cavity (T) in the bleeders, thereby
causing an ignition (Tr. 76-79). Also, because the inspector
thought the stopping would cut off the airflow from P-5 into
the bleeders, he believed it questionable whether enough of
the air flowing inby on the P-6 section would get back into
the bleeder entries to prevent an accumulation of methane
there {Tr. 91-93, 94-95).
Accordingly, he testified dead air
in the bleeders was a possible danger {Tr. 92).
In the inspector's opinion, the resulting changes in air direction which
would have resulted from the erection of the stopping fell
within the purview of 30 C.F.R. § 75.322 as an air change that
was material and affected safety {Tr. 75, 76).
The inspector's conclusions about the possible adverse
consequences from building the stopping without shutting off
the power were based upon his belief that once the stopping
was completed, the door in the stopping would be closed and as
a result there would be a complete cut off of air from P-5
into the bleeders.
(Tr. 95, 108, 111, 117). As already
noted, the inspector had obtained an air velocity reading of
23,220 c.f.m. in this area (D) (Tr. 54).
Similarly, the mine
foreman obtained an air velocity reading of 22,160 c.£.m. at
that location (5) -('l'r. 271).
i:t was this air -the inspector

1109

feared would be lost to the bleeders all at once. The inspector observed that the door in the stopping that was open, but
he did not ask whether the operator would leave the door open
when construction was finished (Tr. 111).
~he inspector's crucial assumption that the door in the
stopping would be closed, was wrong. ~he mine foreman testified that when the stopping was completed, the door would be
left open all the way (Tr. 280, 284, 310). Once the stopping
was built, it was the foreman's intent to adjust the air flow
by gradually closing the door in conjunction wich opening the
regulator CR) which controlled the air coming across the
longwall face CTr. 262). The foreman testified that he would
continuously take air readings until he was satisfied with the
velocity (Tr. 291-293). By proceeding in this manner sufficient air would keep coming directly into the bleeders from
P-5 through the door in the stopping to ventilate them until
enough air was driven down P-5 and up the P-6 intake entries
to ventilate the longwall face and bleeders from that
direction CTr. 293-295).

I find the foreman's testimony convincing and I accept it.
inspector's position cannot be justified on the ground
that no one told him the door would be open (Tr. 111). He
should have asked, particularly since he saw that the door was
open while the stopping was being built (Tr. 109). Before an
inspector issues a citation for an alleged violation, he
should take steps to apprise himself of the relevant facts.
~his is especially true where the situation is a serious one
and the inspector undertakes to close the operator down with
an unwarrantable order. The inspector's assertion that doors
in stoppings are very seldom left open and that they make poor
regulators is without merit. On these matters the inspector
was contradicted by MSHA's ventilation supervisor, who stated
that the use of doors in stoppings as regulators is not
unusual (Tr. 230). The ventilation supervisor described how
doors are used as regulators in accordance with the ventilation plan (Tr. 230-231). His testimony is therefore,
consistent with the mine foreman's statement that the door in
the subject stopping would have been used as a regulator,
controlling the amount of air going directly into the bleeders
from P-5 (Tr. 305).
~he

In addition, the foreman pointed out that the door CW) at
the P-6 end of bleeder entry 3 was open and that the door in
P-6 entry 1 near the headgate (marked "door off" on the map)
was intentionally left off (Tr. 266-267, 286-287). It nowhere
appears that the inspector was cognizant of these circumstances. With these doors, open and off respectively, and
with the door in the subject stopping open and only closed
gradually as air was constantly monitored, the foreman explained how at all times there would be an airflow throughout

1110

the bleeders with no dead airspace (Tr. 286-288, 293-296, 301).
foreman showed that as increased air came up the P-6
entries it would ultimately cross che longwall face and then
ventilate bleeders with certain stoppings (X and 14) removed
and another one installed to seal off the gob CTr. 295-300).
~he

I am convinced by the foreman's description of how ventilation would have been maintained in the bleeders and by his
testimony that under the circumstances presented here there
would be no dead airspace in the bleeders.
~he inspector's
conclusions must be rejected because they were based upon
erroneous assumptions and inadequate knowledge of the facts.
Since the inspector erred in believing that erection of
the subject stopping would create a sudden and complete
cut-off of air from P-5 to the bleeders, his fear of a
corresponding initial onrush of air up the P-6 intake entries,
was unfounded.
~herefore, his resulting concern that methane
from the roof fall cavities CR, S, ~) could be pushed out by
such an onrush was misplaced and is rejected.
In this
connection, it must also be noted that the roof falls outby in
P-6 (R and S) were on intake air and had never shown methane,
despite being checked at least once or twice each week by the
foreman (Tr. 269).
In light of the foregoing, I conclude that on the facts
presented in this case, the gradual air changes which were to
have been made would not have been material and would not have
affected the safety of the miners and that therefore, the
inspector's finding of a violation cannot stand and his
withdrawal order must be vacated.
The foregoing is dispositive.
However, it should also be
noted that the inspector displayed great uncertainty over what
the mandatory standard means.
As quoted above, 30 C.F.R.
§ 75.322 directs that the mine be idle when there are ventilation changes which "materially" affect the main cuirent or a
split thereof and which "may affect the safety of persons in
the mine."
In attempting to justify his finding of "material"
in this case the inspector relied upon the fact that the operator's activities were planned (Tr. 121, 122, 162-163) and
asserted that if the operator had just come upon an unplanned
air change, it would not have been material (Tr. 116, 124).
He also stated that if the operator could fix something
quickly it would not be a material change (Tr. 162). I do not
find these considerations persuasive.
"Material" means "being
of real importance or great consequence." Webster's Third
International Dictionary (1988).
The issue of whether a

1 11 1

change came about intentionally or whether it could be
rectified quicKly, does not affect the actual characteristics
of the change itself.
Nor does the Inspector's Manual help.
Ic is well established that the manual is not binding upon the Commission.
Alabama By-Products, 4 FMSHRC 2128 (Dec. 1982); U. s. Steel,
5 FMSHRC 3 (Jan. 1983); U. S. Steel, 10 FMSBRC 1138 (Sept.
1988). If MSHA wishes the manual to be accorded weight, a
showing must be made that it is consistent with and furthers
the purposes of the mandatory standard. ~he portion of the
manual involved in this case does not define "material" or
explain what "affecting safety" means.
It merely directs that
air changes of more than 9,000 c.f .m. in a split of air can
only be made when the mine is idle.
Because I have found that the operator could have
controlled the air change gradually, T conclude that any
change would not have exceeded 9,000 c.f .m. • Nevertheless,
mention should be made of the confusion shown by MSHA
witnesses over how the manual should be interpreted. ~he MSHA
ventilation expert testified that all inspectors were told to
follow the 9,000 c.f.m. rule, but he did not know where the
rule came from and said only that he had been told it was
related to the requirement of air velocity in the last open
crosscut (Tr. 198-199). No analysis was offered with respect
to this alleged relationship. Moreover, there was no understanding of when the 9,000 c.f .m. policy would be followed.
For example, the inspector and the ventilation expert indicated that air changes of more than 9,000 c.f .m. could be made
at the bottom of the main shaft and at exhaust fans without
shutting off power, but that power would have to be shut off
even where less than 9,000 c.£.m. was involved if the total
percentage of air being changed was great (~r. 172-173,
199-201, 204).
Operator's counsel suggested at the hearing
that the differences in following the 9,000 c.f .m. rule could
be due to the fact that some of examples considered may not
have involved a split of air (Tr. 203). However, MSHA
witnesses themselves did not rely upon any such distinction.
Rather the thrust of their testimony was that 9,000 c.f .m. is
a relative term and only a guide that is not all inclusive
(Tr. 170, 199). Such an open-ended approach is really no
guide at all.
It the policy statement is to be meaningful, it must give
some advice that will enable inspectors to know when the 9,000
c.£.m. is to be followed and when it is not.
Insofar as the
record in this case is concerned, there is no such guidance.
Indeed, the ventilation expert agreed that the policy statement was confusing (Tr. 202).
I i 30 C.F.R. § 75.322 is to
play its proper role in enforcement of the Act, it must be

1112

interpreted and implemented by informed inspectors in an
uniform and intelligible manner.
Although I have found that there was no violation,
mention must be made of the issuance of an unwarrantable withdrawal order. The Commission now has defined unwarrantable as
"aggravated conduct constituting more than ordinary negligence." Emery Mining Corporation, 9 FMSHRC 1997, 2001
(December 1987), Youghiogheny and Ohio Coal Company, 9 FMSHRC
2007, 2010 (December 1987). With the confusion and lack of
clear guidelines detailed herein, and in light of the operator's gradual approach toward the air change, issuance of the
subject order with its attendant harsh sanctions was
particularly inappropriate.
The posthearing briefs filed by the parties have been
reviewed. To the extent that the briefs are inconsistent with
this decision, they are rejected.
ORDER
In light of the foregoing, it is hereby ORDERFD that
Order No. 3106688 be ·vACATRD.
It is further ORD~RF.D that the operator's notice of
contest be GRANTED.
It is further ORDBRFD that the Solicitor's petition for
assessment of civil penalty be DISMISSED.

\

- \
Paul Merlin
Chief Administrative Law Judge
Distribution:
Michael R. Peelish, Bsq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241
(Certified Mail)
Jack F. Strausman, Esq., Office of the Solicitor, u. s. Department of Labor, Room 516, 4015 Wilson Boulevard, Arlington, VA
22203
(Certified Mail)
Lawrence Beeman, Director, Office of Assessments, U. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA. 22203
CHandcarried)
/gl

1113

;
0

z
z
9

3
f/.•JI

0+00

APPENDIX
WEVA 88-290-R
WEVA 84-4
1114

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

June 20, 1989
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY A~D HEALTH
ADMINISTRATION CMSHA),
·Petitioner

Docket No. WBVA 89-51
A. C. No. 46-01318-03849

v.

Robinson Run No. 95 Mine

CONSOLIDATION COAL COMPANY,
Respondent

..

DECISION
Appearances:

~onald

Gurka, Fsq., Office of the Solicitor,

u. s. Department of Labor, Arlington, Virginia
for Petitioner;
Michael R. Peelish, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge Merlin

~his case is a petition for the assessment of civil
penalties filed by the Secretary of Labor against Consolidation
Coal Company under section 105Cd) of the Federal Mine Safety and
Health .~ct of 1977, 30 U.8.C. § 815Cd), for two alleged
violations of the Act.

A hearing was held on May 10, 1989, and the parties have
filed post hearing briefs. ·
Order No. 3117607
Order No. 3117607 dated August 16, 1988, charges a violation
of 30 C.F.R. § 75.202Ca), for the following condition or
practice:
Condition: There was loose, hanging,
unsupported pieces of mine roof between the
wire screen and the rib along the bolted rib
lines in the 3 West section belt conveyor
entry.
30 C.F.~. §75.202Ca), 53 P.R. 2354, 2355, 2375 (January 27,
1988), provides as follows:

1115

(a) The roof, face and ribs of areas
where persons work or travel shall be supported or otherwise controlled to protect
persons from hazards related to falls of the
roof, face or ribs and coal or rock bursts.
Also in question is whether the alleged violation which was
cited in a withdrawal order issued under section 104(d)(2) of the
Act, 30 U.S.C. § 814(d)(2), resulted from unwarrantable failure.
Additional issues are whether the asserted violation was
.
significant and substantial and the appropriate amount of civil
penalty, if any, to be assessed.
In accordance with the stipulations agreed to by the parties
and in light of other in£ormation submitted by them at the hearing I find Cl) I have jurisdiction in this matter; (2) the operator's size is large; (3) the operator's history is as set forth
by the Solicitor; (4) imposition of a penalty will not affect the
operator's ability to continue in business; and (5) the alleged
violation was abated in good faith.
The cited belt conveyor entry was in an area that was being
rehabilitated (Tr. 17, 94, 100-101).
It had originally been
mined several years previously (~r. 17, 99). The top had deteriorated and fallen (Tr. 17, 77, 79, 99). The opera~or had mined
over the old roof falls, cleared them up with a continuous mining
machine and was in the process of installing a new roof support
system (Tr. 17, 98-99, 145). The intent was to rehabilitate the
area for the life of the mine, opening up the cited entry for
travel and installation of a belt so as to reach coal in another
area (Tr. 17, 99-100).
There is a dispute between MSHA's witnesses and the operator's witnesses over the portion of the belt conveyor entry
involved, the condition of the roof, and the effect of posted
danger signs. The issuing inspector testified that from the
No. 18 block extending inby for 200 feet, including the No. 19
block, there was a roof cavity from 7 to 12 feet high (Tr. 15,
16; "C" to "D" on Jt. Fxhs. 1, and 2). At this location wire
screening had been installed pursuant to the roof control plan
along the center of the entry in the roof cavity to catch loose
or broken materials that might fall (Tr. 18). However, according
to the inspector the screening did not extend to the rib lines
CTr. 15, 19). Rather there was a 20" gap on each side where
there was no support for the roof c~r. 15, 19, 20).
Irregularly
shaped pieces of broken rock were caught in crevices, in the
ribs, and at the edge of the wire on both sides of the entry (Tr.
21, 22).
The issuing inspector's description of the condition was
corroborated by an MSHA supervisory inspector who accompanied him
on the inspection (Tr. 76, 87). The supervisor walked on the
opposite side of the belt entry while the inspector walked on the

1116

side toward the adjacent track entry.
According to the supervisor, loose rock was present on both sides of the entry and that
the track side was worse (Tr. 79, 80). He further said that not
only were 20" not screened but there was an additional 20" on the
sides which extended past the last roof support (Tr. 84).
The issuing inspector testified that two danger signs were
hung at each end of the ~o. 18 block C~r. 24).
The roof condition he cited extended further inby than the danger signs
(~r. 26; Jt. Fxhs. 1 and 2).
According to the inspector, the
signs which were 6" x 12" x 12" were installed about 5' from the
ground on the track side of the entry (Tr. 26, 30). Bach sign
was. attached to a cable or wire which draped across the entry
until it was lying down on the floor on the opposite side of ~he
entry (Tr. 27-30).
In the inspector's opinion the signs were
meant to danger off the entire entry (Tr. 30).
The MSHA supervisor stated that the cable from the danger sign did not extend
to the opposite side and would not impede anyone's travel on that
side of the belt (Tr. 80).
Contrary to MSHA's witnesses, the operator's safety escort
testified that the only affected area was 119 feec from the end
of the No. 16 block to.the middle of the No. 18 block where there
was a roof cavity (Tr. 102). He maintained that in this area
screening was installed tight against roof held with bolts and
planks (Tr. 96-98).
He said that the distance from the screen to
the rib was only 6" to 12" (Tr. 105-106).
In his opinion,
nothing remained to be done in the screened area which was safe
(Tr. 116>. According to the escort, from the middle of the
No. 18 block and through the No. 19 block there was no roof
cavity and the top was in good condition (Tr. 97-98). ~he escort
testified that there were two danger signs anchored to the rib on
the track side of the entry by a wire which went across to the
belt structure (Tr. 107-108).
After listening to the witnesses and reviewing the transcript, I accept the extent of the area involved and the description of the condition given by MSHA witnesses. The escort's
contention that the screened area was safe cannot be reconciled
with the many pre-shift examiner's reports, beginning August 12,·
all of which reported bad top (Resp. Bxh. 2).
So too, the
escort's delineation of the affected area is at odds with the
pre-shift examiner's reports which give the affected area as the
Nos. 18 and 19 blocks. On cross-examination the escort stated he
disagreed with his own pre-shift examiners who reported bad top
and said he would have removed this condition from the fire boss
~ook and reported only an obstructed roadway (Tr. 119).
Finally,
if the area were safe, as the escort asserted, there would have
been no need for any .danger signs.

1117

It is clear that the pre-shift examiners were correct.
The
escort offered no support for his opinion that everything that
could fall, had fallen (Tr. 117}. If the area was completely
safe, as the escort said, it would not have taken iive shifts to
install the planks necessary to abate CTr. 120}. ~he mine foreman testified that the planks used to abate were to prevent
falling materials from coming down into the entry (Tr. 153}.
In addition, I find that references to the walkway in the
pre-shift examiner's reports encompass both sides of the entry
and that, as the MSHA supervisor stated, the track side was worse
CTr. 80}.
I also accept MSHA's evidence that rocks do not always
£all straight down and that a rock falling from the roof on the
track side of the entry could injure someone walking on the
opposite side (Tr. 33, 83, 84}.
As set forth above, loose rock
was present on both sides of the entry indicating the existence
of danger throughout the entry. Since a hazard existed on both
sides of the entry, the entire entry should have been dangered
off. By all accounts the signs were only present on the track
side ('T'r. 26, 30, 80, 107, 108, 150-152}. The wire holding the
signs just draped across the entry ranging from 5 feet off the
floor on the track side down toward the opposite side where it
was no impediment to travel.
I accept the inspector's statement
that the wire did not extend across the whole width of the entry
(Tr. 28}. Accordingly, I find the signs did not danger off both
sides of the entry.
I also accept the inspector's testimony regarding location
of the oigns at each end of the No. 18 block (Tr. 23, 25}.
'T'herefore, the signs did not cover the ~o. 19 block where the
screening also was inadequate_and
rocks had fallen.
r Based upon the foregoing, I conclude that a violation of
30 C.F.R. § 75.202Ca} existed because the roof and ribs of the
cited area where the pre-shift examiner and belt cleaner worked
and travelled, were not supported or controlled to protect
persons against roof falls.
~he next issue is whether the violation was significant and
substantial. 'T'he Commission has held that a violation is
properly designated significant and substantial if, based on the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in
an injury or illness of a reasonably serious nature.
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.

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

1118

standard; (2) a discrete safety hazard--that
is, a measure of danger ~o safety-~contri
buted 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 Commission subsequently explained 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 ~MSHRC 1834, 1836 (August 1984).
The danger of falling rock from the roof through the gaps in
the mesh screening presented a discrete safety hazard.
The roof
had deteriorated. There were stress cracks on both sides of the
entry which increased the potential of a roof fall c~r. 82-83).
Jagged pieces of rock already were caught in ribs and crevices at
the edge of the screening c~r. 20-21).
Based upon this evidence,
I find there was a reasonable likelihood that the feared hazard
of falling rock, would occur. There was also a reasonable likelihood the hazard of falling rock would result in a reasonably
serious or fatal injury.
The hanging rocks weighed 30-35 pounds,
with some heavier and some lighter CTr. 21). Although men were
not working in the area at the time, I accept the inspector's
testimony that the machinery was energized and that the operator
intended to use the belt (Tr. 34, 35-36). The operator's escort
-admitted the belt was used periodically (Tr. 130-131). Moreover,
pre-shift examiners and belt cleaners travelled the area (Tr.
36).
The foregoing evidence also demonstrates tnat the violation
was serious.
Roof falls have long been recognized as a major
cause of serious injury and fatality in the ~ines, Consolidation
Coal Company~ 6 FMSHRC 34 (January 1984).
The violation was not the result of unwarrantable failure on
the part of the operator. Unwarrantable failure has been interpreted by the Commission as "aggravated conduct constituting more
than ordinary negligence." Fmery Mining Corporation, 9 FMSHRC
1997, 2004 (December 1987); Youghiogheny and Ohio Coal Company,
9 FMSHRC 2007, 2010 (December 1987). ~he supplies necessary to
correct the cited condition would have had to be brought in
through the track entry (Tr. 153). However, the track entry was
closed down from August 9 until 9 a.m. August 15 due to a section
104(d)(2) order relating to shelter holes (Tr. 114, 120-121).
The order in this case was issued 25 hours later on August 16.
The operator's escort did not notify the mine foreman until
3 p.m. that the track order had been lifted (Tr. 125). After the
order on ~he track was terminated, flat cars which were needed to
transport the supplies, were used to transmit supplies to abate a
third order previously issued on ~ugust 3 which involved venti-

1119

lation (Tr. 121-122, 128). It appears that despite the effort
involved in abating the ventilation order, other flat cars were
still available to correct the cited roof condition. Cars were
being used at that time to deliver rock dust and other supplies
so that mining could continue (Tr. 130, 156-157). ~evertheless,
the 25-hour interval was not sufficiently attenuated to justify a
finding of unwarrantable failure, especially since the operator
was engaged in abating the ventilation order.
Also, nothing in
the record suggests that the failure to extend the danger signs
to control the entire entry was due to aggravated conduct of
the sort required by Commission precedent. The finding of
unwarrantable failure must be vacated.
~he operator was guilty of ordinary negligence.
The
operator's escort should have notified the mine foreman as soon
as the track entry became available to transport supplies instead
of waiting several hours. Also flat cars should have been used
to transport materials to correct the roof, instead of carrying
rock dust and other supplies. The operator also was negligent in
not insuring that the danger signs controlled both sides of the
entry.

The post-hearing briefs filed by the parties have been
reviewed. To the extent that the briefs are inconsistent with
this decision, they are rejected.
In light of the foregoing and in accordance with the six
statutory criteria set forth in section llOCi) of the Act.
I
conclude that a penalty of $900 is appropriate.
Order No. 3117438
This 104Cd)(2) order dated August .9, 1988, was issued for a
violation of 30 C.F.R. § 75.1403(g). The order recites that
under the applicable safeguard, shelter holes were not provided
at the required 105 foot intervals. This is the order which shut
down the track entry, as described above.
The original assessment was $1,200 and at the hearing the
parties proposed a settlement of $950 (Tr. 164-165). The Solicitor explained that the violation was not as serious as originally
thought, because most miners in the area would be in cars and not
walking. Also, miners would have adequate warning a car was
coming because the entry was long and straight (Tr. 166).
accept the Solicitor's representations and approve the
recommended settlement, which remains a substantial amount, as
consistent with the criteria set forth in section llO(i) of the
~ct, 30 u. s. c. § 820(i).
I

1120

ORDFRS
No. 3117607
It is ORDERFD that the finding of a violation be AFFIRMED.
It is further ORDF.RED that the finding of significant and
substantial be AFFIRMED.
It is further ORDERED that the finding of unwarrantable
failure be VACATED.
It is further ORDBRF.D that the subject 104(d)(2) order be
MODIFTFD to a 104(a) citation.
Tt is further ORDFRED that a penalty of $900 be

ASSESS~D.

No. 3117438
It is ORDERED that the proposed settlement of $950 be
APPROVED.
ORDER TO PAY
i:t is further OROFRFD that the operator PAY $1,850 with.in 30
days from the date of this decision.

,.__.--l\~~~~

Paul Merlin
Chief Administrative Law Judge
Distribution:
Ronald Gurka, Bsq., Office of the Solicitor, U. s. Department of
Labor, Room 516, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Michael R. Peelish, Fsq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
/gl

1121

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

22041

JUN 2 0 \989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.

CIVIL PENALTY PROCEEDING
Docket No. CENT 88-108
A.C. No. 16-01031-03507

v.
Dolet Hills Lignite Mine
DOLET HILLS MINING VENTURE,
Respondent
DECISION
Appearances:

Anthony G. Parham, Esq., Office of the
Solicitor, U.S. Department of Labor, Dallas,
Texas, for the Petitioner;
Bruce P. Hill, Esq., Sturgis, Kentucky, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns proposals for assessment of civil
penalties 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 in the amount of $1,000, for two alleged violations of
mandatory training standard 30 C.F.R. § 48.28(a). A hearing
was held in Shreveport, Louisiana, and the respondent filed a
posthearing brief. Although the petitioner did not file a
brief, I have considered its oral arguments made on the record
during the course of the hearing in my adjudication of this
matter.
Issues
The issues presented in this case include the following:
Cl) whether the respondent violated the cited mandatory training standard; (2) whether the violations resulted from an
unwarrantable failure by the respondent to comply with the
reqnirements of the cited standard; and (3) whether or not the

1122

violations were significant and substantial. Assuming the violations are affirmed, the question next presented is the appropriate civil penalties to be assessed pursuant to the penalty
criteria found in section llOCi> of the.Act. Additional issues
raised 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,
30 u.s.c. § 301, et seq.
2.

Sections llO(a), llO(i), 104(d), and 105(d), of the

3.

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

Act.

Stipulations
The parties stipulated to the following (Tr. 11-13):
1. The respondent operates a surface coal
lignite mine, with 83 employees.
2. ·The respondent's mine produces 2.5 to
2.75 million tons of coal annually, and it is a
small-to-medium sized mining operation.
3. Payment of the proposed civil penalty
assessments for the violations in question will
not adversely affect the respondent's ability to
continue in business.
4. The respondent's history of prior violations for the 24-month period prior to the
issuance of the violations in this case consists
of seven (7) violations, none of which are for ·
violations of the training requirements found in
Part 48, Title 30, Code of Federal Regulations.
Discussion
The contested section 104(d)(l) citation and section
104Cd)(2) order were issued by MSHA Inspector Donald R. Swnmers
in the course of an inspection which he conducted at the mine
on January 19, 1988. In addition to the citation and order,
the inspector issued two section 104(g)(l) orders withdrawing
the two miners in question from the mine until they received

1123

the required training. These orders were not contested and the
petitioner does not seek civil penalty assessments for them.
The citation and order in issue are .as follows:
Section 104(d)(l) "S&S" Citation No. 2929494, January 19,
1988, cites a violation of mandatory training section 30 C.F.R.
§ 48.28(a), and the cited condition or practice states as
follows:
Harold Mellott, Maintenance Supervisor, was
working on the mine, performing supervisor duty
at the mine off ice. Training records show
Mr. Mellott received no training since 8-30-85.
Discussions with Judy Tate, MSHA training spec.
and Dennis Haeuber, Safety & Training instructor
(Dolet Hills) had received no annual refresher
training or first aid, as outline in the company
training plan for supervisors and 77.1706(b).
Dennis Haeuber, Company Training Instructor.
A 104(g)(l) order (2929493) has been issued
in conjunction with this citation.
Section 104 ( d) ( 2) "S&S" Order No. 2929496, January 19,
1988, cites a violation of mandatory training standard
30 C.F.R. § 48.28(a), and the cited condition or practice
states as follows:
Randy Rhodes, operation foreman, was
working on the mine performing foreman duty.
Records show Mr. Rhodes has received no annual
refresher training or first-aid since 8-23-85,
hire date 7-8-85, first aid training as outline
in 30 C.F.R. § 77.1706(b). Mr. Dennis Haeuber,
Company Training Instructor.
A 104(g)(l) Order (2929495) has been issued
in conjunction with this order.
Petitioner's Testimony and Evidence
Dennis A. Haeuber, respondent's safety training coordinator, testified that he is responsible for the planning and
development of the respondent's training program, training
compliance, and the conduct of all training.
Mr. Haeuber confirmed that he was present when Inspector
Donald Summers conducted an inspection on January 19, 1988, and
issued two citations for the failure to provide training for

1124

Mr. Harold Mellott and Mr. Randy Rhodes. Mr. Haeuber confirmed
that he advised Mr. Summers that he had not trained these
individuals, and he explained that he could provide no training
records to indicate that they received 8 hours of formal classroom training for the year 1987. However, Mr. Haeuber believed
that these individuals were trained on an informal basis, but
received no formal refresher course training for 1986 and 1987
(Tr. 15-19).
Mr. Haeuber stated that his "informal" training of
Mr. Mellott and Mr. Rhodes consisted of "frequent conversations
de.aling with the entire safety and health area of 83 miners."
Mr. Haeuber explained that the "informal" training is
non-documented and he could produce no notes supporting these
conversations (Tr. 19).
Mr. Haeuber stated that subsequent to the issuance of the
citations, he has developed a computerized system for recording
the training and retraining of all miner's (Tr. 21, exhibit
R-8).
Mr. Haeuber stated that during his informal discussions
with Mr. Mellott and Mr. Rhodes in 1986 and 1987, they discussed transportation controls and communications systems,
escape and emergency evacuation plans, and fire fighting
procedures. However, he could recall no dates when these
conversations took place, and he confirmed that the conversations lasted from 10 to 15 minutes, to an hour (Tr. 26-31).
Mr. Haeuber confirmed that he could produce no training
records to show that Mr. Mellott and Mr. Rhodes received any
refresher course training for the years 1986 and 1987, and he
confirmed that he advised Mr. Summers that these individuals
had not received their annual refresher training (Tr. 32). He
also confirmed that MSHA education and training specialist Judy
Tate visited the mine on January 15, 1988, and informed him
that these individuals had not received their annual refresher
training for 1987 (Tr. 33).
Mr. Haeuber stated that he trained other employees with a
formal refresher class, and that Mr. Mellott and Mr. Rhodes
were scheduled for training on December 21, 1987, but he could
not train them because he was sick (Tr. 34). Mr. Haeuber
acknowledged that he was aware of the fact that the training
was required, but could not explain why the training was not
given during the period after he was informed by Ms. Tate that
it was required, and prior to the issuance of the violations
(Tr. 36).

1125

On cross-examination, Mr. Haeuber confirmed that he was
previously employed by MSHA from 1978 through May 1982 as a
mine inspector and special investigator, and that he previously
served as a safety director for another mining operation prior
to his present job with the respondent (Tr. 37).
Mr. Haeuber confirmed that the mine operated 6 days a week
in 1987, except for shut dow~ periods in August and December,
and that it operated in excess of 250 days that year. He also
confirmed that Mr. Mellott and Mr. Rhodes were involved in no
accidents or injuries in 1986 or 1987 (Tr. 40).
Mr. Haeuber reviewed a portion of the respondent's training plan which he submitted to MSHA in 1985, and he confirmed
that he would speak with maintenance manager Mellott approximately an hour each day, and that 50 percent of the conversation dealt with safety. He also confirmed that Mr. Mellott
spent 95 percent of his time in his off ice and that he spoke
with him for more than an hour on the subject of mandatory
health and safety standards in each of the years 1986 and 1987,
and also spoke with him about transportation controls and
communication during those same years (Tr. 43). He further
confirmed that he covered each of the subjects shown in the
training plan during his conversations with Mr. Mellott (Tr.
51-53).
Mr. Haeuber identified exhibit R-1 as an MSHA training
guideline explaining the annual refresher training for certain
categories of miners, and he believed that Mr. Mellott occupied
an "administrative position" and that he received more than
hazard training for the years 1986 and 1987, but had no record
of this informal training (Tr. 59-60).
Mr. Haeuber identified exhibit R-8 as an example of his
computerized training record keeping which was developed as a
result of his "administrative oversight" of 1987 with respect
to documenting training records (Tr. 62-64). He confirmed that
MSHA's training specialist Judy Tate spent 3 days at the mine
in January reviewing training records, and that when she left
she told him that "you need to get these people trained" (Tr.
67). Mr. Haeuber further explained his position as follows at
(Tr. 68-69):
JUDGE KOUTRAS:
So you say when you talked to
Ms. Tate you took the position that yes, these
people were trained. Did she ask you about
Mellott and Rhodes specifically, do you
remember?

1126

THE WITNESS: She did not ask about Mellott and
Rhodes specifically but as she would go through
my training records, they were available to her.
I had to show her everything that was in my
file, then the point did come out, yes. But
there was no paperwork to show training for '87.
JUDGE KOUTRAS: No paperwork to show training
for '87 for who?
THE WITNESS:
JUDGE KOUTRAS:

For Mr. Mellott and Mr. Rhodes.
Mr. Rhodes.

THE WITNESS: And just before she left on
Thursday, she indicated that I needed to get
those people training, and that was -JUDGE KOUTRAS: Needed to get them trained, that
implies that they weren't trained.
THE WITNESS: Well, I guess that's probably
true, Your Honor.
JUDGE KOUTRAS: Did you tell her that they were
not trained? Or did she just come to the
conclusion that she couldn't find records that
they weren't trained.
THE WITNESS: I feel that's -- that's basically
what she did, check my records. It shows up
that there's no record for '87, and I'm the
person -JUDGE KOUTRAS: She's going to come to the
conclusion that they weren't trained.
THE WITNESS:

That's right.

JUDGE KOUTRAS: Did you explain to her that
these people were trained?
THE WITNESS:

No, I did not.

In response to further questions, Mr. Haeuber confirmed
that the section 104(g)(l) orders issued by Inspector Summers
on January 19, 1988, withdrawing Mr. Mellott and Mr. Rhodes
from the mine were not contested by the respondent (Tr. 74).
He also confirmed that exhibit R-2 is an MSHA approved training

1127

plan which has been in effect from 1985 to the present (Tr.
75-76).
Mr. Haeuber stated that he had no notes concerning
the precise number of hours or occasions that he spent with
Mr. Mellott and Mr. Rhodes discussing the safety topics shown
on the training plan, and he confirmed that during these
discussions he did not inform them that they were part of any
refresher training classes, and spent in excess of 3 O minutes.
on each of the safety topics (Tr. 79).
Mr. Haeuber explained Mr. Mellott's duties, and confirmed
that he has three maintenance supervisors working directly for
him, and that these supervisors are in direct contact with the
hourly miners. He also confirmed that Mr. Mellott spends less
than an hour a week out of his off ice and in the mine, and
relies on his supervisors (Tr. 82). He confirmed that
Mr. Mellott has been a coal miner for over 24 years, and that
Mr. Rhodes has been a miner for 4 years and previously served
as a construction superintendent and has in excess of 8 years
of experience (Tr. 86).
Mr. Haeuber confirmed that both Mr. Mellott and Mr. Rhodes
received formal training in 1985 and 1988, but that in 1986 and
1987, he relied on his informal sessions with them in lieu of
the 8-hour classroom sessions (Tr. 88). He believed that his
informal safety discussions with Mr. Mellott and Mr. Rhodes
were as good as the formal classroom training sessions utilizing a "canned training program" (Tr. 89). He confirmed that
during an MSHA conference with Inspector Summers' supervisor
with respect to the citations, the supervisor took the position
that since he could not document the training in question, the
citations would stand as written. Mr. Haeuber also confirmed
that at the time the citations were issued he said nothing to
Mr. Summers about his informal safety discussions with
Mr. Mellott and Mr. Rhodes (Tr. 91).
Harold Mellott, respondent's maintenance manager, confirmed that he has been so employed since 1984, and he
explained his duties. He also confirmed that he has 25 years
of coal mining experience, and has worked in maintenance since
1970. He stated that he established the preventive maintenance
program for the mine, and has three maintenance foremen who
report to him. In addition to his maintenance duties, he is
also responsible for parts purchases, and in 1986 and 1987, he
worked 48 to 60 hours a week implementing the preventive
maintenance program. Except for spending 2 hours a day in the
shop during two 5-day shut down periods for each of these
years, he estimated that he devoted 1 hour a day in the actual

1128

work areas where maintenance was being performed. He confirmed
that during these years his off ice was located in the main shop
area {Tr. 93-107).
Mr. Mellott testified that he received formal refresher
training in 1984 and 1985, and that it lasted 8 hours, or one
full day. With regard to any training received in 1986 and
1987, Mr. Mellott stated as follows {Tr. 108-109):
Q. And, during '86 and '87, you didn't receive
any formal refresher training, did you?

A. -- wasn't directing any work for us, but I
did not, no.
Q.

You didn't

A. Other than Dennis and I have conversations
of probably 30 minutes to an hour every day
about different things at the mines. And we go
on tours at the mines and he'll find something
that needs to be done at the mine and he'll come
in and discuss it. Maybe go on a trip and look
at it.
Q. I'm talking about formal safety refresher
class like you had in '85, you didn't have that
for '86 and '87, did you?
A.

No.

Mr. Mellott agreed that refresher training decreases the
likelihood of employee injuries, and while he did not directly
supervise the work of his maintenance crews, he does supervise
his foremen and is involved in setting up and taking down the
drag line. He confirmed that he has built 15 to 16 drag lines
in the past, and has had direct supervision over 350 employees
and 40 foremen during his years of experience in the mining
business {Tr. 114-117).
On cross-examination, Mr. Mellott confirmed that during
his past work in dismantling and erecting drag lines, he has
never experienced any serious injuries. He also confirmed that
he spends 95 percent of his time at his desk in his off ice, and
that his foremen do all of the maintenance follow-up work {Tr.
119). He stated that he speaks with safety director Baeuber
daily, and explained further as follows (Tr. 120-121):

1129

Q. When you have your discussions with Dennis,
what do you talk about?
A.
He may see if fire extinguishers been
knocked, see if glass broke out or something
that somebody else hasn't seen and he comes to
discuss it and we'll get in line to get fixed.

Q.

What percent of your time do you spend
talking to Dennis during that hour a day that
you say you talk with him, what percent of time
do you talk to him about safety?

A. Well, sometimes we measure a quick run
around of the mine and he may see something down
in the pit, down the mine that he wants to go
look at so to pinpoint it, that'll be hard to do.
But today it may be 30 minutes, tomorrow maybe
45, the next day maybe ten minutes.

Q.

would you say ten percent, 50 percent,
100 percent? What would you say percent of?

A. At least 50 percent of the time is safety
when he's with me.
Mr. Mellott referred to the safety topics listed in the
training plan (exhibit R-2), and explained how these topics are
covered during his discussions with Mr. Haeuber. He confirmed
that these discussions take place while they are walking around
the mine site looking at various problems, or in their respective offices, and that they are not conducted in a structured
classroom environment (Tr. 121-129}. He believed that his
daily contacts and discussions with Mr. Haeuber "is the best
teacher there is," and that he received more out of these
discussions than any formalized structured classroom training
sessions (Tr. 130). Mr. Mellott confirmed that during his
informal discussions with Mr. Haeuber, no reference was ever
made to any of the "lesson outlines" referred to in the training plan (Tr. 132). With regard to the subject of first aid,
Mr. Mellott confirmed that he received no "practical demonstrations" concerning CPa, and that he is not certified in CPR or
first aid (Tr. 139). He also confirmed that during his 1986
and 1987 discussions with Mr. Haeuber, he received no course
materials or other documents concerning any of the courses
shown in the training plan, and that at no time did Mr. Haeuber
inform him that thei~ discussions were a part of any refresher
training course (Tr. 141-142).

1130

Randall L. Rhodes, testified that he has been employed by
the respondent as a f lrst line operations supervisor for
5 years, and that he supervises 15 to 20 people on alternating
day and night shifts. Most of these individuals operate equipment such .as coal haulers and bulldozers, and he conducts
safety meetings with these individuals on a daily and weekly
basis, and he explained his daily work routine. He confirmed
that he spends most of his work time driving around the mine
site in his pick-up communicating with his employees in various
work areas of the mine, and that he spends approximately an
hour each day out of his truck walking around on the ground
(Tr. 144-149).
Mr. Rhodes confirmed that he received a formal refresher
training course in 1985 and 1988, but did not receive any such
formal refresher course in the years 1986 or 1987 (Tr. 149-150).
He further confirmed that his 1985 and 1988 formal course training included all of the topics shown on the training plan
(exhibit R-2). He believed that he received a CPR course in
1986, which included training with a CPR "dummy," but he
received no course materials other than MSHA "Fatalgrams" (Tr.
151-156).
On cross-examination, Mr. Rhodes stated that neither he or
any of his pe~sonnel were involved in any accidents during 1986
and 1987, and he believed that thee is nothing to indicate that
formal training, as opposed to informal training, made him a
more safe or unsafe miner (Tr. 157). He confirmed that he
.spoke with Mr. Haeuber on a daily basis for 45 minutes to an
hour, and that 15 minutes of the conversation was related to
safety (Tr. 158). He also confirmed that the conversations
covered the topics listed on the training plan (Tr. 159-163).
Mr. Rhodes confirmed that he kept no records of the actual time
spent discussing safety topics with Mr. Haeuber, but that it
was an "every day thing" (Tr. 164-166).
MSHA Inspector Donald R. Summers, testified as to his
training and experience, and he confirmed that he visited the
mine after his supervisor informed him that MSHA education and
training specialist Judy Tate had visited the mine during the
week ot January 11, 1988, and found that Mr. Mellott and
Mr. Rhodes had not received their annual refresher training
(Tr. 180). Mr. Summers stated that he spoke to Mr. Haeuber and
asked to see the MSHA Training Form 5023 for Mr. Mellott and
Mr. Rhodes. Mr. Summers reviewed the forms and found that
Mr. Mellott and Mr. Rhodes had not been trained, and he stated
that Mr. Haeuber informed him that he had them scheduled for
training but was sick and had not retrained them (Tr. 183).
Mr. Summers stated further that Mr. Haeuber confirmed to him

1131

that Mrs. Tate had found that Mr. Mell6tt and Mr. Rhodes had
not received the annual refresher training, and that
Mr. Haeuber said nothing to him about any informal training for
these two individuals (Tr. 184).
Mr. Summers confirmed that after Mr. Haeuber informed him
that Mr. Mellott and Mr. Rhodes had not received any annual
refresher training and indicated that there were no records of
any such training, he informed Mr. Haeuber that he was going.to
issue a section 104(g)(l) order for the two individuals and a
section 104(d)(l) citation (Tr. 184). Mr. Summers explained
his reasons for issuing the unwarrantable failure citation,
with special "significant and substantial" findings (Tr.
185-187).
Mr. Summers confirmed that after issuing the section
104(d)(l) citation for the violation concerning Mr. Mellott, he
issued a section 104(d)(2) order for the violation concerning
Mr. Rhodes, and that he did so because it "fell into the
criteria" and "the operator knew the condition and didn't
correct it" (Tr. 196). Mr. Summers stated that he based his
unwarrantable failure order on the fact that Mr. Rhodes had not
been trained or retrained since 1985, and that he was scheduled
for training on December 21, but that Mr. Haeuber was sick and
was unable to give the training (Tr. 197). He explained his
"significant and substantial" finding with respect to
Mr. Rhodes (Tr. 197-199).
Mr. Summers believed that the respondent's failure to
train Mr. Mellott and Mr. Rhodes constituted more than simple
negligence for the following reason (Tr. 200):
A. Those two individuals for tl1e past two (sic)
had received no formal training.
Dennis was
aware of this situation, and like I say, made a
statement that he had them scheduled but that he
was sick. Then Ms. Tate came and checked the
records and Dennis told her that he hadn't gave
any annual refresher training. On the day that
I showed up there was still no record to
indicate this. And when I asked Dennis he said,
no, I haven't given them the annual refresher
training for the reasons I just stated.
Mr. Summers confirmed that his review of the respondent's
training records reflected that all other employees classified
as miners had received their training except for Mr. Mellott
and Mr. Rhodes (Tr. 200-201). He did not believe that the
informal discussions between Mr. Haeuber and Mr. Mellott and

1132

Mr. Rhodes during the years 1986 and 1987 constituted a formal
training program because it did not comply with the MSHA
approved training plan because "they've got to be in 30 minute
segments and the individual that this training is given to has
to be told that this is a part of your annual refresher training" (Tr. 201). Mr. Summers also believed that the informal
discussions did not comply with the cited training standard,
and that "if it was some type of formal instruction on a
one-on-one basis, I don't see why it wouldn't work just as
good" (Tr. 202).
On cross-examination, Mr. Summers conf ir~ed that he had
previously inspected the mine 10 to 12 times since it opened in
1984, and he considered the mine conditions to be "average."
The number of citations that he has issued during his inspection are "below average," and compared to other mines of comparable size, the mine is "a well run mine" (Tr. 204). He also
confirmed the mine has experienced no serious accidents or
injuries since his last inspection, and while it has an
"average" accident record, it has had some reportable accidents
in 1985 and 1986, but he could not state how many (Tr.
204-206).
Mr. Summers stated that he issued a section 104(d)(l) citation on June 13, 1988, for the lack of guardrails on a working
platform, and that Mr. Mellott admitted to the violation (Tr.
209). However, he never personally observed Mr. Mellott or
Mr. Rhodes working in any unsafe manner, and to his knowledge
they have never been injured on the job (Tr. 210). Mr. Summers
believed that the lack of training could result in Mr. Mellott
or Mr. Rhodes possibly getting themselves in a situation where
they would not recognize a hazard CTr. 212).
Mr. Summers stated that he was instructed by his supervisor to go to the mine and issue the section 104(d) and 104(g)
citations and orders 11 if it met the criteria." He confirmed
that the instructions were given before he went to the mine,
but that he agreed with the citations and orders. He also confirmed that his supervisor was aware of the fact that Mrs. Tate
had been to the mine previously and found that the two individuals had not been trained, and that this was the basis for his
supervisor's instructions to go to the mine and issue the citations and orders (Tr. 212-214).
Mr. Summers confirmed that he wrote up the citations and
orders at the mine after he had spoken with Mr. Haeuber who
confirmed that Mr. Mellott and Mr. Rhodes had received no training and that there were no records of this training (Tr. 215,
217). Mr. Summers· reiterated that Mr. Haeuber admitted that he

1133

had not given the two individuals their annual refresher training, and said nothing about any informal training discussions
(Tr. 224). Mr. Summers confirmed that he did not review the
training plan with Mr. Haeuber (Tr. 225).
Mr. Summers stated that the training plan does not contain
any prohibitions concerning the number of people to be trained,
but does require that such training be given at the mine office
(Tr. 227). He confirmed that the effect of the "G" orders was
to require the immediate removal of the cited individuals from
the mine until they have received the training prescribed by
section 115 of the Act (Tr. 231).
Mr. Summers conceded that he could have issued section
104(a) citations rather than unwarrantable failure violations,
but that he did not do so because he knew that Mrs. Tate had
been at the mine the week before and he expected Mr. Haeuber to
insure that the two individuals were trained (Tr. 247-249). He
further explained as follows CTr. 251):

Q. So, what constitutes this significant and
substantial and the aggravated conduct on the
operator from the one week that Ms. Tate was
there to the following week to when you issued
these G's and the D's.
A. The operator had full knowledge of what was
going on at the particular time, and didn't take
any corrective action to abate or correct this
situation. He knew the training of those two
individuals had not been -- had not received
their annual refresher training, and he did not
make any effort to train those individuals up to
the first -Mr. Summers confirmed that Mrs. Tate did not issue any
citations because she is not an inspector CTr. 257). He also
reconfirmed his view that the failure by Mr. Mellott and
Mr. Rhodes to receive training for 2 years constitutes signif icant and substantial violations, and the fact that they have
had no accidents during this time period makes no difference
since the failure to receive the training constitutes a hazard
for those individuals CTr. 259).
Mr. Summers confirmed that the trainin.g standards contain
exceptions for mine supervisors who are State certified in
those states approved by MSHA, but that this exception does not
apply to Louisiana because it has no such certification authority (Tr. 266). He also confirmed that Mr. Haeuber conducted

1134

the requisite training to abate the violations and filled out
the required forms (Tr. 267).
Mr. Summers confirmed that Mr. Haeuber produced an MSHA
training Form 5023 for Mr. Mellott and Mr. Rhodes at the time
he inspected the records, but that the last entry only
reflected training up to 1985. The forms for all other
employees were.current and reflected current training. When
asked why the forms for Mr. Mellott and Mr. Rhodes were not up
to date, Mr. Summers responded as follows (Tr. 269):
THE WITNESS:
I think it was an oversight up
until the end of the year was rolling around and
time caught them. They were going to get it
like Dennis had testified in December the 21st,
Dennis was sick. This is the problem of waiting
until the last minute to get the job done.
Findings and Conclusions
Fact of Violation
The respondent is charged with two alleged violations of
mandatory training standard 30 C.F.R. § 48.28(a), which states
that "Each miner shall receive a minimum of 8 hours of annual
refresher training as prescribed in this section."
Subsection (b) provides that the annual refresher training
shall include the following ten subjects:
1.

Mandatory health and safety standards.

2.

Transportation controls and communication
systems.

3.

Escape and emergency evacuation plans;
f irewarning and firefighting.

4.

Ground control; working in areas of
highwalls, water hazards, pits, and spoil
banks; illumination and night work.

5.

First aid.

6.

Electrical hazards.

7.

Prevention of accidents.

8.

Health.

1135

9.

Explosives.

10.

Self-rescue and respiratory devices.

11.

Such other courses as may be required by
the District Manager based on circwnstances
and conditions at the mine.

Subsection (d) states that "Where annual refresher training is conducted periodically, such sessions shall not be less
than 30 minutes of actual instruction time and the miners shall
be notified that the session is part of annual refresher
training."
Section 48.23 requires that each mine operator have an
MSHA approved training plan containing programs for annual
refresher training, and the detailed requirements for such
plans are found in this regulation.
In the instant case, the
respondent's approved training plan for annual refresher training is exhibit R-2, submitted by Mr. Haeuber in his capacity as
the mine safety and training coordinator to Mrs. Tate by cover
letter dated February 20, 1985. Except for the subject of
"explosives," the plan provides for subject matter training for
each of the remaining nine subjects listed in section
48.28(b)(l) through (10). Pursuant to the approved plan,
Mr. Haeuber is listed as the approved training instructor,
training is to be given in February in the mine off ice, and the
duration of each training session is shown as "no longer than
8 hrs. 15 min." The course materials to be used for training
are set forth in the plan, and the teaching methods are shown
as "lecture and discussion." The subj2cts of first aid, electrical hazards, and self-rescue and respiratory devices include
a "demonstration" requirements, in addition to lectures and
discussions. Under the plan, maximum number of trainees at any
training session is 20, and a "question and answer" evaluation
is shown for each of the subjects covered during the training
sessions.
I take note of the fact that in the answers filed by the
respondent in this case by Mr. Haeuber and Mr. Richard F.
Grady, Jr., respondent's general manager, they stated that
"Management of the Dolet Hills Mining Venture does not deny
that two training violations did exist at the time of the
January 19, 1988, inspection." However, ehey took the position
that the violations were "administrative in nature" and contended that each of the cited individuals had received the
required training, but that the training had not been documented. They further stated that although the respondent

1136

admits that violations occurred, they occurred only from "an
administrative, bookkeeping perspective," and the thrust of
their defense is the contention that the violations were not
unwarrantable failure or significant and substantial
violations.
During the course of the hearing, petitioner's counsel
took the position that the respondent is bound by its pleadings
and the admission in its answer that the violations occurred as
charged. After careful review and consideration of the answer,
while it is true that the respondent did not deny the violations, it seems clear to me that the respondent's admissions
are qualified and less than unequivocal. The respondent contended that the two cited miners did in fact receive the
requisite training, but that it failed to document the training
through an "administrative or bookkeeping" oversight. In any
event, my findings and conclusions with respect to the merits
of the alleged violations are based on the credible and probative evidence presented at the hearing, rather than the respondent's answers (Tr. 49-51).
The respondent's ·assertion that the two cited individuals
received the required training is based on the argument that
MSHA's training regulations, and the approved training plan for
the mine, do not require that the training be administered in a
formal classroom setting or in accordance with any formalized
or structured course curriculum (Tr. 44-49). The respondent
maintains that under its plan, Mr. Haeuber, as the approved
training instructor, has total flexibility as to the manner in
which formal or informal training is conducted as long as no
more than the maximum number of employees are in attendance,
the class is held in the specified location and is taught by a
certified instructor, and the training plan is followed.
In
support of its position, the respondent contends that the discussions which took place between Mr. Haeuber and Mr. Mellott
and Mr. Rhodes during their daily contacts at the mine throughout 1986 and 1987, included discussions of each of the safety
and health subjects listed in the mine training plan, and in
fact constituted the annual refresher training required by section 48.28(a) and the approved training plan (Tr. 54). The
respondent further relies on the belief by Mr. Mellott and
Mr. Rhodes that these "on the job" discussions proved to be
more effective than any formalized classroom instruction, and
that the respondent's accident and injury record attests to
this fact.
The petitioner takes the position that the respondent is
required to adhere.to the requirements of its approved training
plan for annual refresher training and must insure that each

1137

miner receives the formalized classroom instruction for all
topics listed in the plan. Although the petitioner's counsel
agreed that MSHA's training regulations do not specifically
provide for "formal" or "informal" training instruction, he
stated that the intent of the annual refresher training requirement is that the respondent follow its approved plan.
Inspector Summers' view is that the respondent must follow its
approved training plan, and he characterized the plan as a
"formal" training plan that required structured course training
in a class room environment, including the demonstrations,
course materials, and "question and answer" sessions detailed
in the plan. He did not believe that the informal discussions
in question met the requirements of the plan or MSHA's
regulations (Tr. 218-223).
Mr. Haeuber conceded that Mr. Mellott and Mr. Rhodes
received no formal annual refresher training for the years 1986
and 1987 through the formal administration of any of the safety
courses shown on the respondent's approved training plan, and
he confirmed that he advised Inspector Summers that these
individuals had not received any annual refresher training at
the time of his inspection. Mr. Haeuber further confirmed that
all other employees received formal annual refresher training
classes, but that he could not train Mr. Mellott and Mr. Rhodes
as scheduled because he was ill. Mr. Haeuber took the position
that both Mr. Mellott and Mr. Rhodes were trained informally by
means of daily discussions in which each of the safety topics
listed in the mine training plan were discussed, and that this
informal training was in lieu of formal classroom instruction
and met the requirements of MSHA's regulations and the plan.
Although Mr. Haeuber testified as to the time spent on each of
the subjects discussed, he could not document the precise time,
and he kept no records. Further, he conceded that during his
discussions with Mr. Mellott or Mr. Rhodes, he never informed
them that these discussions were a part of any annual refresher
training courses, and he admitted that at the time the citations were issued, he did not inform Inspector Summers about
his informal safety discussions.
Mr. Mellott confirmed that he received his annual formal
refresher training for the years 1984 and 1985, and that this
training consisted of 8 hours, or one full day of training, in
each of the 2 years. He further confirmed that for the years
1986 and 1987, he received no formal refresher classroom training similar to that he received in the prior 2 years, and that
he and Mr. Haeuber had daily discussions for approximately
30 minutes to an hour each day either in their off ices or while
walking around the mine site looking into various "problems."

1138

In explaining his discussions with Mr. Haeuber,
Mr. Mellott alluded to the fact that they discussed equipment
which was causing problems, such as dust and dirt in welders,
shop ventilation, brake problems with haulage equipment,
radios, fire extinguishers in need of repair, trash clean-up,
emergency exit signs over doors, occasional employee injuries,
extension cords in need of repair, electrical problems, and
accident prevention (Tr. 121-129). However, Mr. Mellott conceded that he never receiv~d any practical demonstrations concerning first aid, or any course materials or other docwnents
concerning any of the subjects listed in the training plan, and
that Mr. Haeuber never informed him that any of their discussions were a part of any annual refresher training.
Mr. Rhodes also confirmed that he received formal annual
refresher training in 1985 and 1988, but not in 1986 or 1987.
Although he believed he received a CPR course in 1986, including training with a CPR "dummy," he received no classroom training materials, and in 1987 received no first aid classroom
demonstrations, but did receive information on first aid during
his weekly safety meetings. He also confirmed that during the
years 1986 and 1987 he received no course materials for any of
the safety topics listed on the training plan other than MSHA
fatal-grams.
Mr. Rhodes confirmed that he spoke with Mr. Haeuber on a
daily basis for an hour or 45 minutes, and that 15 minutes of
the conversation was related to safety. He kept no records of
·these conversations, or the actual time spent in discussing
safety, and confirmed that at no time during these conversations during the years 1986 or 1987, did Mr. Haeuber ever indicate to him that their discussions fulfilled the requirements
of the annual refresher training courses.
Mr. Rhodes confirmed that he and Mr. Haeuber covered all
of the topics listed on the training plan during their safety
discussions, and as examples he cited the fact that transportation controls and communications systems were "brought up every
day," that employees were continually reminded about escapeways, emergency evacuations, fire warnings and fire fighting,
and that ground control, working near high walls, and water
hazards was discussed on a daily basis. He also alluded to the
fact that when electrical problems occur, "you go over safety
precautions," and that accident prevention is discussed daily
through a safety awareness program, and signs and slogans are
posted to remind employees about accident prevention (Tr.
159-161). Mr. Rhodes also confirmed that he regularly consulted with Mr. Haeuber on all of these matters, including

1139

preparation for weekly safety meetings covering the topics
listed on the training plan (Tr. 162).
After careful consideration of the respondent's arguments,
they are rejected. I conclude and find that the respondent is
bound by its. own MSHA approved training plan, and must follow
it to the letter.
I find nothing in the plan that allows the
respondent to use daily informal conversations between an
approved training instructor and miners required to receive
annual refresher training in lieu of the formalized and structured training program found in the plan. Although I do not
dispute the fact that Mr. Haeuber, Mr. Mellott, and Mr. Rhodes
may have discussed various and sundry "safety matters" during
the course of their daily routines, such conversations
obviously taken place every day in a mine and I reject any
notion that they may be used in lieu of the approved plan.
The record here reflects that Mr. Mellott and Mr. Rhodes
received annual refresher training in 1984 and 1985, and that
this training was administered in a class room environment
which was completed in the course of 8 hour days. Exhibit R-8,
a computerized print-out reflecting training administered to
other miners at the mine during intermittent periods from 1985
to 1988, reflects training received by miners in concentrated
hourly sessions held on the specific dates shown on the
training records. Further, the record also establishes that
except for Mr. Mellott and Mr. Rhodes, the respondent had
trained all other miners in accordance with MSHA's requirements
and had records which it produced for MSHA's scrutiny. Thus,
it would appear to me that with the exception of Mr. Mellott
and Mr. Rhodes, the respondent's normal training procedures and
practices included formalized and structured training sessions
administered on specific days set aside for these purposes.
I
find nothing in the record to even suggest that the respondent
has ever advanced any argument that daily conversations among
miners and a training instructor or safety director were deemed
by the respondent to be adequate to satisfy MSHA's training
requirements.
Mr. Haeuber conceded that he did not administer any formalized or structured training to Mr. Mellott or Mr. Rhodes during
1986 and 1987, and they candidly a&nitted that they received no
such formalized training. The evidence clearly establishes
that the purported training received by these individuals did
not include the use of any of the course materials detailed in
the plan, did not include any evaluation sessions or practical
demonstrations, and I find nothing to suggest that Mr. Haeuber
utilized the lecture training method required by the plan in
the course of his discussions with Mr. Mellott and Mr. Rhodes.

1140

The evidence also establishes that Mr. Haeuber never informed
Mr. Rhodes and Mr. Mellott that their conversations were part
of any refresher training sessions, and both of these individuals confirmed that they were never informed that they were
receiving their annual refresher training during any of these
conversations. Subsection Cd) of section 48.28 requires that
miners receiving training during any periodic sessions be
notified that such sessions are part of their annual refresher
training. Section 48.29 requires that all training be recorded
and documented on MSHA form 500-23, and that the miner be given
a copy of a training certificate. None of this was done in
this case.
During the course of the hearing, respondent's counsel
suggested that Mr. Mellott, in his capacity as the respondent's
maintenance manager, was an "administrative type" who spent
95 percent of his time in his off ice, and was therefore not
regularly exposed to mine hazards. Under these circumstances,
counsel argued that Mr. Mellott is excluded from the requirements for annual refresher training (Tr. 55-59). Counsel also
argued that even assuming that Mr. Mellott were required to
receive training, he· would only be required to have hazard
recognition training (Tr. 60-61). In support of his argrnnents,
counsel produced a copy of a portion of an undated MSHA
Training Guideline, containing the following "Question and
Answer" (exhibit R-1):
Question
For training purposes, are mine superintendents
(not certified by the state), president, general
manager, etc., considered miners?
Answer
Anyone working on mine property is considered a
miner for training purposes. The amount of
t~aining a miner receives depends on his
exposure to the mining hazards. If the
President of the company came only to the
off ice, there is probably no exposure, and he
would not be required to take any training. If
he goes into a mine occasionally he is probably
exposed to the mining hazard in a limited way
and is required to receive hazard training. If
he works along side with other miners, he is
subject to full training.

1141

The definition of a "miner" required to receive annual
refresher training is stated in relevant part as follows in
section 48.22:
[A]ny person working in a surface mine or
surf ace areas of an underground mine and who is
engaged in the extraction and production
process, or who is regularly exposed to mine
hazards • •
Supervisory personnel subject to MSHA approved state certification requirements are excluded from the definition of a
miner required to receive annual refresher training
C48.22(a)(l)Cii)).
Subsection 48.22(a)(2), also excludes such
supervisory personnel from the hazard training requirements of
section 48.31, as well as miners covered under section
48.22(a)(l).
The record establishes that Mr. Mellott is responsible for
the maintenance activities at the mine. Although his testimony
reflects that he spends most of his time in the off ice, he
confirmed that he regularly and routinely spends at least an
hour each day in the actual work areas where maintenance is
being performed. He also confirmed that he tours the mine when
problems arise, is responsible for the direct supervision of at
least three maintenance foremen, including involvement with the
erection and dismantling of the drag line. Under these circumstances, I conclude and find that Mr. Mellott's duties are
directly connected with the mine extraction and production
process, and that his daily visits to the mine maintenance work
areas constitutes a regular exposure to mine hazards. Further,
the fact that he received annual refresher training in years
prior to the time the violations here were issued while serving
in his capacity as the maintenance manager raises a strong
inference that the respondent has never taken the position that
he was excluded from the annual refresher training requirements.
Under all of these circumstances, I conclude and find that
Mr. Mellott is not excluded from these requirements, and the
respondent's argument to the contrary is rejected.
Insofar as Mr. Rhodes is concerned, the evidence reflects
that as a first line operations supervisor he is directly
involved in the supervision of the work of 15 to 20 miners
engaged in the operation of coal haulers and bulldozers, and is
in daily contact with these miners and thei.r work while driving
around the mine in his pick-up truck. The fact that he may
spend only 1 hour a day out of his truck walking around on the
ground is irrelevant. He is directly engaged in the mine
extraction and production process, and he is regularly exposed

1142

to mine hazards. Accordingly, I conclude and find that he is
not excluded from the annual refresher training requir~~ents.
With respect to the training exclusion for supervisory
personnel subject to MSHA State certification requirements,
Mr. Mellott and Mr. Rhodes do not qualify for this exception
because the State of Louisiana where they are employed does not
have MSHA approval for any such state certifications.
In view of the foregoing findings and conclusions, I conclude and find that the preponderance of the evidence adduced
in this case establishes that Mr. Mellott and Mr. Rhodes were
subject to the annual refresher training requirements of the
cited section 48.28(a), and that they failed to receive such
training for the years 1986 and 1987. Accordingly, the violations issued by Inspector Summers ARE AFFIRMED.
The Section 104Cg)(l) Order Issue
The record in this case reflects that after determining
that Mr. Mellott and Mr. Rhodes had not received the requisite
annual refresher training, Inspector Summers issued two section
104Cg)(l) orders requiring their withdrawal from the mine until
they were trained. These orders were not contested by the
respondent, and they are not the subject of the instant civil
penalty proceeding.
The respondent argues that since Mr. Mellott and
Mr. Rhodes were withdrawn from the mine pursuant to section
104Cg)(l), and since the withdrawal sanction provided for by
this section specifically addresses a training violation, any
sanctions imposed by MSHA for this violation is limited to the
issuance of the order. Respondent suggests that once the withdrawal orders were issued, compliance was achieved by the withdrawal of Mr. Mellott and Mr. Rhodes until they were trained,
and that the concurrent issuance of the section 104(d)(l) citation and order charging it with the violations of the identical
training standard which formed the basis for the section
104(g)(l) withdrawal orders was unauthorized and illegal.
Respondent argues that section 104Cg)(l) does not authorize the issuance of any additional citations or orders for
training violations, and that by issuing the section 104(d)(l)
citation and order, it has been "double barrelled" and
subjected to "double jeopardy." The respondent points out that
with the exception of an imminent danger order issued pursuant
to section 107Ca) of the Act, MSHA does not "piggyback" citations or orders, and that in this case, the section 104(d)(l)
citation and order were not issued in conjunction with the

1143

section 104(g)(l) order, but were issued for the identical
condition.
During the course of the hearing, respondent's counsel
asserted that since a miner who is withdrawn for lack of training is deemed to be an immediate hazard to himself and to his
fellow miners, this is somewhat akin to an imminent danger situation, and there is a suggestion that since untrained miners
pose an imminent danger, a section 104(d)(l) citation or order
cannot be issued because the finding of no imminent danger is a
prerequisite to the issuance of such citations and orders (Tr.
231-235). I find no merit to this argument, and it is rejected.
Respondent's counsel also alluded to the fact that MSHA's
policy of issuing citations and orders in conjunction with
section 104(g)Cl) orders "has been done away with" and that its
"new policy" does not address this issue (Tr. 235). However,
counsel has presented no further arguments or evidence with
respect to this asserted policy, and none has been forthcoming
in his posthearing brief.
The respondent's arguments are rejected. I find nothing
illegal or procedurally defective in the action taken by the
inspector in this case. The record reflects that the issuance
of the section 104(d)(l) citation and order complied with the
procedural requirements of the Act with respect to the issuance
of such citations and orders. MSHA's training standards are
duly promulgated mandatory standards under the Act, and violations of these standards are subject to the citation sanctions
provided for in sections 104(a) and (d)(l) and {d)(2) of the
Act, as well as the civil penalty assessment sanctions provided
for in section llO(a). As noted above, the petitioner is
seeking civil penalty assessments for the violations noted in
the section 104(d)(l) order and citation, and not the section
104(g)(l) order.
The Unwarrantable Failure Issue
The governing detinition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295-96:
In light of the foregoing, we hold that an
inspector should tind that a violation of any
mandatory standard was caused by an unwarrantable failure to comply with such standard if he
determines that the operator involved has failed
to abate the conditions or practices constituting such violation, conditions or practices the

1144

operator knew or should have known existed or
which it failed to abate because of a lack of
due diligence, or because of indifference or
lack of reasonable care.
In several recent decisions concerning the interpretation
and application of the term "unwarrantable failure," the
Commission further refined and explained this term, and concluded that it means "aggravated conduct, constituting more
than ordinary negligence, by a mine operator in relation to a
violation of the Act." Emery Mining Corporation, 9 FMSHRC 1997
(December 1987>1 Youghiogheny & Ohio Coal Company, 9 FMSHRC
2007 (December 1987)1 Secretary of Labor v. Rushton Mining
Company, 10 FMSHRC 249 (March 1988). Referring to it_s prior
holding in the Emery Mining case, the Commission stated as
follows in Youghiogheny & Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is
conduct that is "inadvertent," "thoughtless" or
"inattentive," unwarrantable conduct is conduct
that is described as "not justifiable" or
"inexcusable." Only by construing unwarrantable
failure by a mine operator as aggravated conduct
constituting more that ordinary negligence, do
unwarrantable faflure sanctions assume their
intended distinct place in the Act's enforcement
scheme.
In Emery Mining, the Commission explained the meaning-of
the phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary meaning of
the phrase "unwarrantable failure."
"Unwarrantable" is defined as "not justifiable" or
"inexcusable." "Failure" is defined as "neglect
of an assigned, expected, or appropriate action."
Webster's Third New International Dictionary
(Unabridged) 2514, 814 (1971) ("Webster's").
Comparatively, negligence is the failure to use
such care as a reasonably prudent and careful
person would use and is characterized by "inadvertence," "thoughtlessness," and "inattention."
Black's Law Dictionary 930-31 (5th ed. 1979).
Conduct that is not justifiable and inexcusable
is the result of more than inadvertence, thoughtlessness, or inattention. * * *

1145

Respondent's argwnent that its negligence is found in the
lack of adequate record keeping, which it claims was inadvertent, is not well taken. The respondent is not charged with a
violation of the record keeping requirements of MSHA's training
regulations.
It is charged with the failure to give refresher
training to two individuals for two successive years, and I
have rejected its assertion that the "discussion and conversation" training satisfied the requirements of the cited training
standard. Therefore, the issue presented is whether or not the
respondent's failure to train Mr. Mellott and Mr. Rhodes constituted aggravated conduct exceeding ordinary negligence.
Inspector Summers testi.f ied that he based his unwarrantable failure findings on the fact that Mr. Mellott and
Mr. Rhodes had received no annual refresher training for a
period of 2 years and 5 months. Mr. Summers considered
Mr. Haeuber's admissions that he knew that these two individuals had not received any formal training during this time
period, and the fact that after Mrs. Tate visited the mine and
informed Mr. Haeuber that these individuals had not been
trained, Mr. Haeuber took no immediate action to insure that
they received the training (Tr. 194-197). Mr. Summers also
considered the fact that other employees, including Mr. Mellott
and Mr. Rhodes, had previously received fonnal training, and
this obviously led him to further conclude that Mr. Haeuber was
well aware of the requirements for such formal training.
Mr. Haeuber confirmed that Mrs. Tate had visited the mine
on January 15, 1988, and informed him that Mr. Mellott and
Mr. Rhodes had not received their annual refresher training.
The only explanation he could offer for not training them previous to this time was his assertion that they were scheduled for
such training on December 21, 1987, but that he could not train
them because he was ill. Mr. Haeuber acknowledged that he had
trained other employees through refresher training classes, and
that he was aware of the fact that such training was required.
When asked why he had not trained Mr. Mellott and Mr. Rhodes
after he was advised by Mrs. Tate that they had not received
such training, Mr. Haeuber responded "I can't answer that.
I
don't know" (Tr. 36). He also acknowledged that he said
nothing to Mrs. Tate about taking care of the training for
Mr. Mellott and Mr. Rhodes (Tr. 37).
The record reflects that Mr. Haeuber was formerly employed
by MSHA as a mine inspector and special investigator from 1978
to 1982, and that he was previously employed as a safety
director for another mining company prior to his employment
with the respondent. His current duties include the planning
and development of all training at the mine, including the

1146

conduct of such training, and the responsibility of insuring
compliance with MSHA's training requirements.
In view of
Mr. Haeuber•s background, I doubt that he really believed that
his informal discussions and conversations with Mr. Mellott and
Mr. Rhodes satisfied MSHA's training requirements. If this
were truly the case, anyone in his position would have offered
some explanation to Mrs. Tate and to the inspector.
I conclude and find that Mr. Haeuber was well aware of the
requirements for formalized training of all employees, and that
he was aware of the fact that Mr. Mellott and Mr. Rhodes had
not received such training for over 2 years.
Although one may
excuse and mitigate Mr. Haeuber's failure to train Mr. Mellott
and Mr. Rhodes when he was ill, I find nothing to mitigate or
excuse his failure to take immediate measures to properly train
them after he was notified by Mrs. Tate that such training was
lacking. Under the circumstances, I conclude and find that his
failure to do so constitutes aggravated conduct supporting the
unwarrantable failure findings made by the inspector. Accordingly, those findings ARE AFFIRMED.
Significant and Substantial Violations
A "significant and substantial" violation is described in
section 104(d)(l) of the Mine Act as a violation "of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. § 814(d)(l). A violation is properly designated significant and substantial "if, based upon the particular facts surrounding the violation there exists a reasonable
likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "signif icant and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove:
(l) 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

1147

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 substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining
Company, Inc., 6 FMSHRC 1573, 1574-75 (July
1984).
The 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).
During the course of the hearing, respondent's counsel
took the position that a significant and substantial violation
finding is a prerequisite to the issuance of a section
104Cd)(l) citation and order CTr. 253).
In Youghiogheny & Ohio
Coal Company, 10 FMSHRC 603 (May 1988), the Commission, citing
UMWA v. Kleppe, 532 F.2d 1403 co.c. Cir. 1976), cert denied sub
nom. Bituminous Coal Operator's Assn.·, Inc. v. Kleppe, 429 U.S.
1405, held that while a significant and substantial finding is
a prerequisite for the issuance of a section 104Cd)(l) citati0n, there is no such requir~nent for the issuance of a-5e'ction 104Cd)(l) order.
The respondent takes the position that the violations were
not significant and substantial because the informal training
received by Mr. Mellott and Mr. Rhodes was better and more
effective than that found in the formal training plan, that the
individuals in question had never suffered any injuries, and
that the mine accident record attests to the effectiveness of
the informal training received by them. The respondent further
argues that Mrs. Tate obviously did not believe that it was
reasonably likely that an accident would occur since she failed

1148

to contact her supervisor who would have issued a verbal order
over the telephone, and MSHA let a week go by before dispatching Inspector Summers to the mine. The respondent also points
to the admission by Mr. Swruners that the "possibility" of
serious injuries flowing from a lack of training does not
equate to "reasonably likely" (Tr. 211-212).
With regard to Mrs. Tate, the fact that she took no
enforcement action is irrelevant. Mrs. Tate was not authorized
to take any direct enforcement action through the issuance of
violations, and she obviously reported the lack of training to
MSHA's district office.
Inspector Summers confirmed that this
was the case (Tr. 214). He also confirmed that the fact that
Mr. Mellott and Mr. Rhodes have never personally been involved
in any accidents would make no difference as to whether or not
the violations were significant and substantial (Tr. 259).
Inspector Summer's confi.rmed that the mine has had MSHA
reportable accidents in 1985 and 1986 (Tr. 206). He believed
that the failure to train Mr. Mellott and Mr. Rhodes presented
the possibility that they would overlook or not recognize
hazardous situations (Tr. 211-212). Mr. Summers confirmed that
during his prior mine inspections, he seldom observed
Mr. Mellott in his office, and he usually observed him in the
maintenance shop area (Tr. 207). He also testified that he has
observed Mr. Mellott in situations where individuals around him
were working in an unsafe manner, and that he discussed this
with Mr. Mellott and has issued citations and orders in these
instances (Tr. 207). Mr. Summers confirmed that he issued a
section 104Cd)(l) citation involving the maintenance of a piece
of equipment that Mr. Mellott was responsible for, and that
this occurred on June 13, 1988, when he cited a violation for a
work platform which did not have handrails. Mr. Smnmers
further confirmed that after discussing this with Mr. Mellott,
he admitted that miners were working on the platform without
hand rails (Tr. 208-209).
Inspector Summers also testified with respect to an accident which occurred at the mine when a miner lost part of his
finger while using a paint gun sometime in 1986. Mr. Summers
explained that the miner sustained nerve damage to his finger
by the paint which was injected into his finger, and he
believed that annual refresher training would have presented an
opportunity to discuss this incident and to alert miners about
the hazards of using such equipment (Tr. 259-262).
Inspector Summers believed that Mr. Mellott would be
exposed to various hazards in the pit, and along the drag line
and belt line. He conEirmed that during prior inspections, he

1149

has observed Mr. Mellott near the equipment and work areas, and
he believed that he would be exposed to the same hazards as
other miners in those mining areas. - Mr. Summers emphasized the
fact that the failure by Mr. Mellott to receive refresher training since 1985 constituted a hazard to himself, and that his
failure to receive such training would result in the likelihood
that he would overlook or not be aware of hazardous conditions
or situations _without taking corrective action (Tr. 186-187).
With regard to Mr. Rhodes, Inspector Summers believed that
his lack of training since 1985 was in itself a hazard, and
that training was essential to "refresh his memory on the
hazards that he's possibly overlooking out in the mine itself"
(Tr. 197). Mr. Summers also alluded to the fact that in his
experience as a mine inspector, case histories have established
that annual refresher training, or the lack thereof, is
directly related to the cause and prevention of accidents (Tr.
198-199). Mr. Summers pointed out that Mr. Rhodes works in the
pits and highwall areas around heavy equipment, and is in
contact with coal haulers and other heavy equipment during his
work throughout the mine.
Should an accident occur, Mr. Rhodes
would be exposed to an injury which "could very well be fatal"
(Tr. 199).
Unlike other mandatory safety and health standards covering specific mine conditions and potential hazards which are
for the most part readily recognizable, and which are intended
to promote mine safety by requiring compliance with a specific
standard, MSHA's overall training requirements are intended to
promote safety by providing a means for training miners through
training classes covering many safety and health subjects. The
requirements for training new miners are intended to train
miners who have no prior mining experience. l\lewly arnployed
experienced miners are trained so that they may be familiar
with a new work environment which may be different from their
last place of employment. Task training is provided to train
miners who are required to operate equipment or perform job
tasks for which they have had no prior experience. Annual
refresher training is intended to provide a means for experienced miners to keep i-nformed and to be always aware of the
work hazards incident to their work.
I take note of the fact that in enacting the section
104Cg)Cl} withdrawal provision for miners who have not received
the requisite training, Congress declared that such miners are
hazards to themselves as well as others.
In this case, the
inspector's credible testimony establishes that Mr. Mellott and
Mr. Rhodes are exposed to potential mine hazards on a daily
basis, and I conclude and find that their failure to receive

1150

the requisite annual refresher training is in itself a hazard.
As the overall manager for mine maintenance, and aside ·from his
own safety, Mr. Mellott is under a duty and obligation to be
alert for mine hazards affecting those who work in his department. Likewise, Mr. Rhodes, as a first line operations supervisor, has a duty and obligation for the safety of his work
crews. Their failure to receive the requisite training is a
poor example .for the rank and file miners, and does little to
promote mine safety. Given the fact that mine conditions
change from day to day, I find merit in the inspector's belief
that the lack of such training may lead to complancency, or the
overlooking of otherwise routine situations that may be potentially hazardous, not only to the two individuals in question,
but to others. On the facts of this case, the hazard is
exacerbated by the fact that Mr. Mellott and Mr. Rhodes failed
to receive the requisite refresher training for a period in
excess of 2 years. Under all of these circumstances, I agree
with the inspector's findings that the failure by Mr. Mellott
and Mr. Rhodes to receive their annual refresher training over
an extended period of time presented a reasonable and potential
likelihood of an accident or injury of a reasonable serious
nature. Accordingly, the inspector's signiticant and substantial findings. ARE AFFIRJ."1ED.
On the basis of the foregoing findings and conclusions,
section 104(d)(l) Citation ~o. 2929494, and section 104(d)(l)
Order No. 2929496, both issued on January 19, 1988, for violations of the annual refresher training requirements of
30 C.F.R. § 48.28(a), ARE AFFIRMED.
Size of Business and Effect ot Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
The parties have stipulated that the respondent is a
small-to-medium size surface mine operator, and that the civil
penalty assessments for the violations in question will not
adversely affect the respondent's ability to continue in
business.
I adopt these stipulations as my findings and
conclusions on these issues.
History of Prior Violations
The parties have stipulated that the respondent's history
of prior violations for the 24-month period prior to the
issuance of the contested violations in this case consists of
seven citations, none of which are for violations ot the
training requirements found in Part 48, Title 30, Code of
Federal Regulations. Under the circumstances, I conclude and
find that the respondent has an otherwise good compliance

1151

record and that additional increases in the proposed civil
penalty assessments are not warranted.
Good Faith Compliance
The record supports a finding and conclusion that
Mr. Mellott and Mr. Rhodes were immediately trained after they
were withdrawn from the mine, and that the violations were
timely abated by the respondent in good faith.
Gravity
In light of my significant and substantial findings, I
conclude and find that the failure by Mr. Mellott and
Mr. Rhodes to receive their annual refresher training
constitutes serious violations of the cited training standard.
Negligence
The inspector concluded that the violations resulted from
a high degree of negligence on the part of the respondent and
were the result of an unwarrantable failure by the respondent
to comply with the training requirements of the cited standard.
I agree with these findings and they are affirmed.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llO(i) of
the Act, I conclude and find that the following proposed civil
penalty assessments filed by the petitioner for the violations
in question are reasonable and appropriate:
Citation/Order No.

2929494
2929496

Date

30 C.F.R. Section

Assessment

01/19/88
01/19/88

48.28(a)
48.28(a)

$ 500
$ 500

1152

ORDER
The respondent IS ORDERED to pay civil penalty assessments
in the amounts shown above within thirty (30) days of the date
of ,this decision. Upon receipt of payment by the petitioner,
this matter is dismissed.

tJ!
·
.
/,~
/~Koutras

Administrative Law Judge

Dis·tribution:
Anthony G. Parham, Esq., Office of the Solicitor, U.S.
Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX
75202 (Certified Mail)
Bruce Hill, Esq., c/o Pyro Mining Company, P.O. Box 267,
Sturgis, KY 42459 (Certified Mail).

/f b

1153

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

JUN 201989

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 88-104
A.C. No. 15-16245-03501

v.
:
S HM COAL COMPANY,
Respondent

Docket No. KENT 88-159
A.C. No. 15-16245-03502
No. l Surface Mine

DECISIONS
Appearances:

Mary Sue Ray, Esq., Oftice ot the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
tor the Petitioner;
John T. Aubrey, Esq., Aubrey and Bowling,
Manchester, Kentucky, for the Respondent.

Bet ore:

Judge Koutras
Statement of the P~oeeedings
//

These proceedings concern proposals for assessment of
civil penalties tiled by the/petitioner against the respondent
pursuant to section llO(a) of the Federal Mine Satety and
Health Act of 1977, 30 u.s.c._§ 820(a).
In Docket No.
KENT 88-159, the petitioner seeks a civil penalty assessment in
the amount of $400, tor an alleged violation of mandatory new
miner training standard 30 C.F.R. § 48.25(a). In Docket No.
KENT 88-104, the petitioner seeks a civil penalty assessment of
$20, for an alleged violation of mandatory ~otification of
Legal Identity standard 30 C.F.R. § 41.10, and a civil penalty
assessment of $195 for an alleged violation of mandatory
training standard 30 C.F.R. § 48.23(a)(3), tor tailing to tile
a mine training plan.
The respondent filed timely answers denying and contesting
the alleged violations, and it denied that it was operating a
coal mine subject to the jurisdiction of the Act at the time
the citations were issued. A hearing was held in London,
Kentucky, and the parties were afforded an opportunity to file

1154

posthearing briefs. The petitioner filed a brief, but the
respondent did not.
In addition to the briefs, I have considered all of the oral argument made by the parties during the
hearing in my adJudication of these matters.
Issues
The principal issues presented in these proceedings is
whether the respondent's alleged coal mining operation constitutes mining as defined by the Act, whether the alleged mining
activity involved interstate commerce, and whether the respondents, as independent contractors, are accountable for the
alleged mining activity conducted on the land owned by someone
else, and whether they are chargeable for the owner's intent to
extract such coal.
Asswning it is found that the respondent was engaged in
coal mining as detined by the Act, the next issue presented is
(l) whether the respondent· has violated the provisions of the
Act and implementing regulations as alleged in the proposals
tor assessment of civil penalties, and, it so, (2) the appropriate civil penalties that should be assessed against the
respondent for the alleged violations based upon the criteria
set forth in section llO(i) of the ~ct. Additional issues
raised by the parties are identified and disposed of in the
course of these decisions.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-lb4, 30 u.s.c. § 801 et seq.

u.s.c. § 820Ci).

2.

Section llO(i) of the 1977 Act, 30

3.

Commission Rules, 20 C.F.R. § 2700.l et seg.•

Stipulations
The parties stipulated that on October 27, 1987,
Mr. Eugene Mills purchased a case ot dynamite tram Laurel
Explosives, Inc., and that on November 11, 1987, Mr. Curtis
Smith purchased a case of dynamite from this same company CTr.
6-7).
Discussion
In Docket No. KENT 88-159, MSHA Inspector Alex R. Sorke,
Jr., issued section 104(g)Cl) "S&S" Order No. 3004622, dated
November 16, 1987, pursuant to section 115Ca)(2) ot the Act,
and it states as tallows:

1155

Eugene Mills, James Harris and Curtis
Smith, laborers at the No. l Surface Mine, have
not received the requisite satety training as
stipulated in section 115 ot the Act.
All of
these men have been determined to be new miners
which have received none of the required
24 hours of new miner training.
In the absence
of such training each man is declared to be a
hazard to himself and others and is to be
withdrawn trom the mine until he has received
the required training. A citation (No. 3004623)
tor a violation of 30 C.F.R. § 48.25(a) has been
issued in conjunction with this order. This is
an illegal mining operation.
Inspector Sorke also issued section l04(d)(l) "S&S"
Citation No. 3004623, on November 16, 1987, and he cited a
violation ot 30 C.F.R. § 48.25(a). The cited condition or
practice is as follows:
Eugene Mills, James Harris and Curtis Smith
determined to be new miners working in the 001
pit have not received any ot the required
24 hours of new miners training.
All ot these
men stated it had been 6 years or longer since
they had any training. This is an illegal
mining operation and has no training plan.
A 104(g)(l) Ordec (No. 3004622) has been
issued in conjunction with this citation.
Docket No. KENT 88-104, concerns a section 104(a) citation
and a section 104(d)(l) order issued by the Inspector to the
respondent. The citation and order is dated November 16, 1987,
and they are as follows:
Section 104(a) Non-"S&S" Citation No. 3004621, cites a
violation of 30 C.F.R. § 41.10, and the condition or practice
states as follows:
Mining operations have commenced at the
mine and the operator has not submitted a legal
identity report to the MSHA District Manager.
This is an illegal mining operation.
Section 104(d)(l) "S&S" Order No. 3004624, cites a violation ot 30 C.F.R. § 48.23(a)(3), and the condition or practice
states as follows:

1156

Mining Activities have commenced at the
mine and the operator has not submitted a training plan for approval by the MSHA District
Manager. This is an illegal mining operation.
Petitioner's Testimony and Evidence
Pansy Hamin, General Manager, Laurel Explosives, Inc., East
Bernstadt, Kentucky, contirmed from copies of her records that
she sold a case of dynamite to Mr. Eugene Mills on October 27,
1987, and a case of dynamite to Mr. Curtis Smith on
November 11, 1987. She identified a photograph of a case of
dynamite as the type she sold (Exhibit P-1). She also
explained the procedure for purchasing explosives, and confirmed that a purchaser need only.show a driver's license and
fill out a form, and that the company does not verify how the
explosives were used (Tr. 8-14).
On cross-examination, Mrs. Hamm stated that the explosives
purchased by Mr. Mills and Mr. Smith are typical ot purchases
made by many small mine operators, and that she deals with many
such companies. She also indicated that more potent explosives
are purchased by mine operators depending on their intended
use, and that exp1osiv.es are also purchased tor agricultural
use, stump renoval, or for small strip mine operations.
Mrs. Hamm confirmed that she does not personally know Mr. Mills
or Mr. Smith (Tr. 14-17).
Thomas Spellman, Special Investigator, State of Kentucky
Department ot Natural Resources, testified as to his duties,
and he confirmed that they included flying in a helicopter to
view "illegal" mine sites. Mr. Spellman identitied photographic exhibits P-3, as photographs which he took from the
helicopter on November 18, 1987, and he confirmed that he recognized MSHA Inspector Sorke's truck on the ground and recognized
him standing in the roadway near the site in question.
Mr. Spellman stated that a legal mining operation pursuant
to state law requires a permit, and that it is usually identitiable by markers. He confirmed that the site in question had no
permit, and he observed no markers. He confirmed that he has
investigated more than 1,000 such sites during his 7 years as a
special investigator, and that the site in question had all of
the usual characteristics of a surface mining operation, including a highwall, an exposed coal pit, and heavy equipment parked
in the area. He stated that the site was approximately
122 feet long and 50 feet wide, and that the exposed coal depth
was approximately 2 feet.

1157

~-

Mr. Spellman stated that in his opinion, the depth of the
excavation at the site, and in particular the 40 foot highwall,
was not necessary for the construction of a house seat. He
also was of the opinion that the site in question looked like a
typical mining operation (Tr. 17-31).
On cross-examination, Mr. Spellman stated that he did not
speak with Inspector Sorke on the day that he took the photographs, and that he had no knowledge that any MSHA citations
were issued. Mr. Spellman confirmed that his. discovery ot the
site in question was made during a routine "fly-over" of the
area and that his ottice had received no complaint about any
mining operation at the site.
Mr. Spellman confirmed that while he observed that coal
was exposed, as shown in the large photograph, he saw no evidence that any of it had been removed or stockpiled, and could
not determine whether any explosives had been used at the site.
Mr. Spellman stated that another separate state department
has regulatory entorcement jurisdiction over surtace mining
operations, but only in cases where more than 450 tons of coal
is exposed, extracted, and removed from the property with the
intent to sell it. In these instances, the state would prosecute the offending party.
In the instant case, Mr. Spellman
confirmed that he had no knowledge that any coal had been
removed and taken oft the property, and that all of the information that he obtained with respect to the site in question was
turned over to special investigator Michael Hall, a tellow
enforcement officer in his department (Tr. 31-46).
MSHA Inspector Alex R. Sorke, Jr., testified that his
duties include the investigation of illegal mining activities,
and that he went to the site in question after receiving an
anonymous call. He considered the operation to be illegal
because no mine plan or other paperwork had been filed with
MSHA (Tr. 47). He visited the site with State of Kentucky Mine
Investigators George Eugene Hollis and Herman Williamson, and
found that the mine "was working." He observed a dozer, a
tractor with a scraper pan on the rear, and a highlift. He
also found explosives which were used to shoot and create the
highwall, and push brooms were being used to sweep the coal in
preparation for its removal.
Mr. Sorke identified exhibit P-1 as a photograph of an
empty box of explosives, and he confirmed that the explosives
had already been used and were not at the site. He confirmed
that he spoke with Mr. Mills, Mr. Harris, and Mr. Smith, at the
site, and established that they were the operators (Tr. 49).

1158

Mr. Sorke confirmed that he observed "leg wires," which
are used to detonate explosives, in the overburden after it had
been shot.
He also confirmed that most of the equipment was
removed trom the site during his initial visit on November 16,
1987, and that when he next returned to the site on
November 18, all of the equipment had been removed (Tr. 51).
Mr. Sorke stated that when he left the site on
November 16, he believed that the three individuals in question
were going to visit the local UMWA office to determine what was
required to complete their training, and they intormed him that
they had cleared the site. However, at this time they said
nothing to him about preparing a house seat or building a
house, and during the course of his conversation with the
individuals, Mr. sorke believed that they agreed to do what was
necessary to obtain their mine plans and complete the required
preliminary work CTr. 54).
Mr. Sorke identified exhibits P-4Ca) through P-4Cg) as
photographs ot the equipment, the site, and the pit, and he
explained the procedure which would have been used to prepare
the coal tor removal, and he contirmed that they were taken on
November 16 CTr. 55-59).
Mr. Sorke stated that he served the citations on
November 18, because he had to tirst obtain a mine legal ID
number to place on the citation forms.
He confirmed that he
helped the three individuals till out the necessary MSHA legal
Mine ID form on November 16, and that he filled out the
information for them (Tr. 60-61).
Mr. Sorke confirmed that after completing the Mine ID form
(exhibit ALJ-1), he returned to his office to complete the
citations Cexhibits P-5 through P-8), and he then to.ok them to
the site on November 18. However, he confirmed that he issued
the citations "verbally" on November 16, and that "I told them
everything" (Tr. 66).
He confirmed that he was aware of the
fact that there was no mine ID number on file with MSHA before
he visited the site CTr. 68).
Mr. Sorke confirmed that the effect of his section
104(g)(i) order was to close the site because it removed
everyone from the site until they could be trained. He also
confirmed that he issued Citation No. 3004623, because the
individuals admitted that they had not received the required
new miner training (Tr. 68-69).
He issued Citation
No. 3004624, because no mine training plan was on file with
MSHA's district office (Tr. 70).

1159

Mr. Sorke stated that when he returned to the site on
November 18, the individuals in question for the first time
"started talking about it being a house seat" (Tr. 73). He
then served the citations on them. Mr. Sorke confirmed that he
subsequently returned to the site and made certain measurements.
He determined. that the pit averaged 150 feet long, 50 feet
wide, and that the coal was approximately 2 feet in depth. The
hignwall center was 60 feet high, and the ends measured
approximately 42 feet in height.
Based on these measurements,
he estimated that the pit contained approximately 488 tons of
exposed coal (Tr. 75) •. He believed that the highwall and coai
"was treshly exposed" and was not there tor any length ot time.
He estimated that all ot the exposed coal could have been
removed in one day (Tr. 75-76).
Based on his prior experience with similar operations, and
the equipment which was present, he estimated that the three
individuals could have constructed the highwall, exposed the
pit, and removed the coal in 2 weeks, working 40 hours a week
(Tr. 76). He also confirmed that in the course of his prior
investigations of similar sites, "I have been told hundreds of
times that it is going to be a house seat, trailer park, a pond.
I can show you a shopping center," but that he never saw any of
these structures actually erected on these sites (Tr. 77).
Mr. Sorke was of the opinion that the site was a mine site
and not a house seat because the spoil was pushed over the hill
and into the trees, and the trees were all knocked over.
Anyone constructing a house seat would clear the land tirst and
then smooth out the site and would not simply push the spoil
over the hill. He also indicated that the grade leading to the
site was very steep, and although there was a good road, it was
not ditched, and was not the type of road that one would construct for access to a house because one would need a tractor
or tour-wheel drive to reach the site (Tr. 79). He also contirmed that an old inactive strip pit was located below the
site in question (Tr. 80).
On cross-examination, Mr. Sorke stated that he communicated and spoke with Mr. Clarence Mills, the individual who had
an ownership interest in the property, and the person who
purportedly contracted with the respondents to construct the
house seat, but was not certain whether he contacted him before
or after he issued the citations (Tr. 85). Mr. Sorke confirmed
that Mr. Mills told him that he was having a house seat built
and that he was interested in being able to remove the coal
(Tr. 86). He indicated that he met with Mr. Mills before and

1160

after the site was closed, during his investigation of other
illegal mining operations on his property {Tr. 87).
Mr. Sorke confirmed that Mr. Mills told him that the three
respondents were building a house seat, and that when he told
him this the mine had been closed. Mr. Sorke stated that
Mr. Mills asked him whether or not he could remove up to
250 tons of coal as permitted by the State of Kentucky, and
also asked him about leaving the coal. Mr. Sorke stated that
he advised Mr. Mills that no coal could be removed under MSHA's
regulations because the site was closed {Tr. 90-96). Mr. Mills
also advised him that the respondents were instructed not to
take any of the coal (Tr. 97).
Mr. Sorke confirmed that although no coal was actually
removed from the site in question, had he not acted and closed
the site, he believed the coal would have been removed {Tr. 98).
He believed that all of the preparation work for coal removal
had been completed at the time he issued the order, and that
the sweeping ot the coal was the last step immediately prior to
taking out the coal. At this point in time, it was Mr. Sorke's
opinion that the site was in fact a coal mine {Tr. 99).
Mr. Sorke stated.that his estimate that the coal in the
pit was 24 inches deep was based on a hole that was dug in one
section of the pit, but he did not know who dug the hole {Tr.
107, Exhibit P-4{h)). He also agreed that "nobody in their
right mind would build a house on coal" {Tr. 101). When asked
whether a violation would occur it the coal were pushed aside
in order to reach solid ground for a house seat, Mr. Sorke
responded as follows {Tr. 101-102):
A.
It depends on what else is involved.
If
there's equipment used on the site, or if
there's explosives used on the site, or there's
other means to connect the site to Interstate
Commerce, then yes.
If they went up there and they
hand-shoveled it all off and got down to the
coal --

Q. Let's say they had four D-9s up there, and
pushed it off to the side.
A. Yes, pushed it to the side and they got to
the coal and they pushed it up, we would still
consider it a mine.

1161

Q.

You would assume that at some time it would
enter Interstate Commerce?

A.
It's the fact that the coal itself does not
have to enter Interstate Commerce to make it an
inspectible (sic) site under MSHA regulations.

Q. So anybody that would be clearing an area on
their land in eastern Kentucky that pushed the
coal aside would be written up for not having a
mine license, training and what these gentlemen
have been written up for?
A.
Depending on the circumstances involved,
yes.

Q. And Mr. Mills told you the circumstances
were, number one, he wanted a house seat; and
number two, these boys weren't to remove any
coa.L?
A. That's correct. He also said that he got on
to them tor getting down -- they weren't
supposed to go down to the coal level.
Mr. Sorke confirmed that he made no inquiries of any local
tipples to determine whether the respondents had in tact sold
any coal because he saw no need to in view of the fact that ·no
coal was ever removed from the pit (Tr. 103). Mr. Sorke had no
personal knowledge that the respondents were ever connected
with any prior coal mining activities (Tr. 103). He contirmed
that he suggested the initials "S H M" be used for the name of
the respondent company because he needed a company name in
order to obtain a mine ID number, and that the respondent's
agreed to the use of the initial's ot their last names.
Mr. Sorke denied that they said anything about any construction
company, and he denied that the respondents told him on
November 16, that they were clearing a house seat for
Mr. Clarence Mills (Tr. 104-105).
In response to further questions, Mr. Sorke confirmed that
he did not completely discount the possibility that a house
could have been placed of the site which was being excavated
because "when you make a level spot out, you can put a house on
it" (Tr. 115). He reiterated that in his 10-1/2 years of
experience, he has never seen a house constructed on any site
similar to the one in this case. However, he agreed that it
would not be unusual to level out enough ot a spot on a

1162

hillside to build a home, and that the site in question could
have been developed further in either direction (Tr. 116).
Mr. Sorke confirmed that it would have been economically
feasible to move the available 488 tons of coal out of the site
over a 2-week period, and at the then-prevailing market price
of $23 a ton, the coal would sell for close to $9,000 (Tr. 117).
He also confirmed that he did not discuss with the respondent's
their reasons for digging down to expose the coal seam, and he
confirmed that they offered no explanation as to why this was
done (Tr. 120).
George Eugene Hollis, Investigator, Kentucky Department of
Natural Resources, confirmed that he visited the site in
question on November 16, 1987, with his partner Mr. Herman
Williamson, and Mr. Sorke. Mr. Hollis stated that he observed
that the pit had been opened up, the coal was exposed, and he
observed a highlitt or loader, a small farm tractor, and a
small bul.Ldozer at the site. He also observed James Harris
sweeping otf the top of the exposed coal with a broom, and that
was all of the work which was taking place. Mr. Hollis stated
that "By virtue ot cleaning it off, by all appearances, they
were getting· ready to load it, break it up and load it" (Tr.
129-130).
Mr. Hollis stated that based on his experience in investigating illegal mines since 1982, the site he observed on
November 16, 1987, was in all general appearances, the same as
any other site he has investigated. He considered the site in
question to be a mine operation, and for that reason he posted
a closure order on the site, "and that prohibits them trom
hauling the coal" (Tr. 131).
In response to a question as to what led him to conclude
the site in question was a mining operating, Mr. Hollis
responded as follows at (Tr. 131-134):
A. As we said already, from all appearances of
mining equipment, cleaning the coal oft to get
rid of the hash, to make the coal as good a
quality as possible, and also when we tirst went
up, if I remember correctly, the men wouldn't
talk to us hardly at all to start with.
They just sort of hee-hawed around.
But
eventually -- well, one ot our tirst questions
when we go on any site is who's the operator?
Whose job is this? Ot course, they wouldn't
tell us to start with. But after a while, after

1163

we began to talK and things get a little bit
more at ease, then they finally said, "Yes, it's
our job."

Q. Did they say "It's our job building a house
seat?" Did anybody mention a house seat when
you were up there?
t:

A.

No.

Q. Were there any other things that led you to
believe that it was a coal mine operation?
A. Well, again, we just -- all of the assumptions that were made in all the appearances is
that it was a coal mine, and when we asked them
what name they wanted to put it in, the closure
itself by virtue of it, was saying that this was
a coal mine.
We are going to write this closure to
prohibit you from hauling the coal. You don't
have a mine license on it with the Department of
Mines and Minerals. The closure itself states
that fact.
Also what name do you want to put
this in. Well, put it in S H M.

Q.

They told you to put it in S H M?

A.

Yes.

Q. When you were giving them all these papers
that said all this stuff about coal operations
and mining coal, did they give you any indications by the conversation that they knew that
you considered it a coal mine operation?
A.
Yes, as a matter of fact, when we began to
explain our recommendations are the they did not
have a license; they did not have mine maps; and
also, that no coal would be produced.
In
explaining these, in other words, we show them
the closure and give them a copy of the closure.

*

*

*

*

*

*

*

Q. When you left that, did you expect to have
them come in the off ice in a short time and
acquire a mine license?

1164

A. Yes, we told our supervisor, and the way my
partner and myself, and I suppose Mr. Sorke,
telt that within probably a week to two weeks'
time that they would be in. That's the teeling,
you know, again that we had.

Q. Did they express anything about removing the
coal? Did they say anything to you about
removing the coal?
A. Not exactly because all of the entire conversation was that as tar as the mine closure and
everything was the fact that it was going to
prohibit them from hauling the coal.
And, at (Tr. 145-146; 148-149):
A. Just on first notice, just on the top of my
head, two things. The site on Mills Creek where
the coal was exposed, it was pitted back. It
had two sides to it. It was pitted back, the
highwall, actually on either end and the back.
Coal was exposed. They were cleaning the
coal tor market use. You know, if the coal was
just going to be generally taken up, you
wouldn't have to worry about it. If you are
going to take coal and market it, then that coal
has to be as clean as possible, especially in a
poor market, as it has been.

*

*

*

*

*

*

*

Q. Has the State of Kentucky or the Department
of Mines and Miners ever received any kind of
notice from these three gentlemen that they were
building a house seat? Have they ever filed
anything with the State of Kentucky?
A.

*

~o,

*

no, we have not.

*

*

*

*

*

Q. Did you see anything on November 16th when
you were there with Mr. Sorke and Mr. Williamson
that would indicate to you that these gentlemen
intended to do more than just push the coal over
to the side and leave it sit?

1165

A.
Yes, with the loader there, and again, the
fact that they were cleaning th.e coal.
If they
were going to dump it over the hill, or take it
and even stockpile, there wouldn't be any
purpose in cleaning it.
On the lefthand side of the pit, water -there was some water that had drained over the
coal, you know, and it had the mud and what you
could not scrape off it with the grader blade
that was on the little farm tractor, he had the
broom sweeping the coal, cleaning oft the
remainder of that water and mud and so forth.

Q. In your experience, if a person was going to
use that coal tor house coal, would they take
such action and use a pushbroom to clean the
coal?
A.

In my opinion, no.

Mr. Hollis stated that when he returned to the site on
March 10, 1988, with Mr. Sorke, they spoke with Mr. Clarence
Mills, and he identified the notes and communications made
while communicating with Mr. Mills (Tr. 134-135, exhibit P-9).
Mr. Hollis confirmed that he explained the mining law to
Mr. Mills, and answered his questions concerning the taking of
"house coal," requirements for obtaining mine permits, and the
filing of mine plans (Tr. 138-144).
Mr. Hollis confirmed that the State of Kentucky has not
received any notice trom the respondents with respect to the
construction of any house seat at the site in question, and
that they have not challenged the issuance of the closure order.
The closure order is still in effect, and the respondents would
have to obtain a license in order to haul the coal or remove
the closure order (Tr. 147-148).
On cross-examination, Mr. Hollis confirmed that if
Mr. Clarence Mills had exposed the coal in the pit and simply
pushed it aside, or shoved it over the hill, he would not be in
violation ot any state regulation (Tr. 150). Mr. Hollis
confirmed that he observed no coal trucks at or near the site
waiting to haul the coal away (Tr. 150). He also confirmed
that anyone preparing a house seat who comes across a coal seam
is not required to notify his department (Tr. 151).

1166

Mr. Hollis stated that on March 10, 1988, Mr. Clarence
Mills did not inform him that he had hired the respondents to
build him a house seat, and that he ..was only interested in
learning whether he could use the coal for his own purposes or
moving out 250 tons or more (Tr. 153). He confirmed that the
respondents told him to use the initials "S H M" for his state
report, and that the respondents have not evidenced any desire
to remove the .coal from the site in question (Tr. 15 5).
Michael L. Hall, Investigator, State of Kentucky Natural
Resources Academy of Spec.ial Investigations, test it ied that he
has never investigated· the SH M Coal Company, or any of the
three respondents in this ~ctse. However, he contirmed that
after receiving an anonymous call on November 18, 1987, he went
to the site in question on November 23, 1987, and spoke with
Mr. Clarence Mills. At that time, he had no knowledge that
MSHA or the State Department of Mines and Minerals had investigated the site, but learned about this after speaking with
Mr. Mills (Tr. 163).
Mr. Hall confirmed that he made notes of his conversation
with Mr. Mills but did not have them with him at the hearing
because he was notified about the hearing at 8:00 a.m. on the
same day it w·as scheduled. However, he testified from his
recollection, and confirmed that Mr. Mills informed him that he
owned the property and intended to build a house seat at the
site in question and that "they ran into coal" (Tr. 165).
Mr. Hall stated that he explained the coal permit regulations
to Mr. Mills and advised him that with the exception of extracting 250 tons for his pers9nal use, he would need a permit to
take more CTr. 167). Mr. Hall confirmed that Mr. Mills was
concerned about complying with the law and that he read him his
Miranda rights, and that Mr. Mills wanted to know what he had
to do to stay out of trouble (Tr. 167).
Mr. Hall stated that Mr. Mills informed him that Federal
and State mining people had visited the site, but said nothing
to him about the closure of the site (Tr. 168). Mr. Hall
estimated that the pit contained approximately 370 tons of
coal, and based on his examination of the site, he was of the
opinion that it was a mine site (Tr. 170). He based this
conclusion on the fact that coal was exposed, overburden was
pushed out over the outslopes, and extensive overburden had
been removed to reach the coal (Tr. 170).
On cross-examination, Mr. Hall stated that he did not
believe Mr. Mills' assertion that he had a house seat built at
the site in question. He confirmed that he did not charge
Mr. Mills with any violation and did not seek any advice from

1167

the county or the Commonwealth attorney. Mr. Hall also
confirmed that no coal was removed from the site and no law
which he enforces was violated on November 23, 1987 (Tr. 171).
Mr. Hall confirmed that he has recently built a house, and
in all house sites he has observed, all that is necessary is to
dig down to a clay surf ace rather than to go as deep as the
site in question was dug (Tr. 174).
Respondent's Testimony and Evidence
Eugene Mills, testified that Mr. Clarence Mills is his
uncle, and that sometime in July or August, 1987, his uncle
asked him about the cost to build a house seat at the site in
question, and although no price was agreed to, he and
Mr. Curtis Smith, and Mr. James Harris worked together at the
site to build a house seat for his uncle. Mr. Mills stated
that they worked on the site periodically over a 3-month period
(Tr. 179-182).
Mr. Mills stated that when Mr. Sorke and the two state
mining inspectors come to the site, Mr. Sorke looked at the
exposed coal and remarked that "it looks to me like you are
mining coal." Mr. Mills stated that he informed Mr. Sorke that
they were not mining coal and were building a house seat, and
that if they were doing anything wrong, they should be taken to
jail. Mr. Mills stated that Mr. Sorke replied that "I'll try
to help you out" (Tr. 183).
Mr. Mills conceded that brooms were being used to clean
off the coal when Mr. Sorke arrived at the site, and that the
cleaning was necessary to remove the mud so the coal could
burn. He stated that his uncle wanted the coal for his house,
and he did not know the depth of the coal, but estimated that
it was 8 inches deep (Tr. 184).
·
Mr. Mills stated that the respondents had no interest in
the coal, and that he ottered to push it aside tor his uncle's
use, but Mr. Sorke stated that it was "a shame to waste the
coal," and that he would try to find a way tor the respondents
to remove it legally and take it to the foot of the hill.
Mr. Mills stated that Mr. Sorke informed him that he would need
a Mine !1) number, and that he and the other respondents signed
the required MSHA form (exhibit ALJ-1), but that it was not
filled out when they signed it (Tr. 185). Mr. Sorke informed
him that he would need a company name, and Mr. Mills stated
that "S HM Construction sounds good to me," and that he
advised Mr. Sorke to use that name if he needed to have one.

1168

Mr. Mills also contirmed that Mr. Sorke did not fill out the
torm in his presence (Tr. 185-186).
Mr. Mills stated that no coal had been removed from the
site, or even broken up and made ready to be moved, and that he
hired no trucks, or had any trucks waiting to pick up the coal
CTr. 186). He denied that he and the other respondents had any
interest in removing the coal, and confirmed that that they
made no etfort to remove the closure order. Although they
discussed obtaining a mining permit, "there were more obstacles
in our way, and it was just out ot the question.
In order to
do that,
• we were admitting to something that we weren't
doing as far as mining" (Tr. 188).
Mr. Mills stated that the access road to the site was not
wide enough to allow coal trucks to come and go. He contirmed
that he has never engaged in any coal mining business or sold
any coal (Tr. 190-191). He stated that he has constructed
other house sites and that he generally has to cut out the side
ot a mountain in most areas where this has been done (Tr. 192).
Mr. Mills confirmed that he and Mr. Curtis Smith purchased
two cases of explosives, and it was used for shooting ditch
lines, fill stone, and rocks. This work was done at the same
time that he was on his uncle's property <Tr. 19J). Mr. Mills
stated that no coal was ever broken or removed from the site,
and he had no intention of removing it from the property (Tr.
194).
On cross-examination, Mr. Mills confirilled that in July and
August, 1987, immediately preceding the work tor his uncle, he
was working on removing creek rock and that he was using the
same equipment. The rock was shipped to Lexington and sold,
and i t was removed by hand and loader and trucked out. The
rock business was not good, and he engaged in some tarming on
his father's and grandfather's land. The house seat for
Mr. Mills was never completed, and none of the respondents were
ever paid for the work (Tr. 196).
Mr. Mills stated that his uncle did not intend to sell the
coal, and that he simply wanted it moved so the house seat
could be completed. Mr. Mills confirmed that he had an oral
agreement with his uncle, had worked tor him in the past, and
had expected to be paid tor the house seat work (Tr. 200).
Mr. Mills stated that when he began the construction ot
the house seat he had no idea that any coal was at the site,
and that his intent was to build a house seat (Tr. 202). When
asked about his intentions with respect to the coal had

1169

Mr. Sorke and the other investigators not arrived at the site
on November 16, 1987, Mr. Mills responded "our intent was to
break it up, pile it to the side, fi.nish the house seat, get
our money and try to get a new pair of shoes" (Tr. 203). He
stated that when his uncle first asked him about constructing a
house seat, they did not discuss the disposition ot any coal
which may have been found, a~d his uncle said nothing about
stockpiling any coal or taking it for his own use. Mr. Mills
confirmed that he would have to dig another 6 to 8 feet through
the exposed coal in order to reach a suitable house seat (Tr.
203) •
Mr. Mills stated that the words "Coal Company" were
inserted on the MSHA Mine ID form by Mr. Sorke, and that he
told Mr. Sorke that he and the other respondents were not a
coal company, and that they were constructing a house seat for
his uncle and simply ran into the coal seam (Tr. 206).
Mr. Mills stated that Mr. Sorke replied "Don't give me that
bull crap" (Tr. 207). When asked why he was cleaning the coal
if he simply intended to bulldoze it aside so that his uncle
could have it, Mr. Mills stated that his uncle wanted to burn
it, and rather than breaking it up, he decided that the simple
solution was to push it aside, and that was his intent (Tr.
209).
Mr. Mills stated that he "checked out" the price of low
quality coal in 1987, and that it sold for $12 or $13, and that
"wildcat" coal was $6 or $8, and he questioned how he would
benefit by "trying to haul it otf" (Tr. 208). He stated that
his uncle came to the site after the coal seam was exposed, and
asked if there would be a problem for him to break up and burn
the coal (Tr. 209). Mr. Mills stated that his uncle wanted the
house seat so that he could build a house for his son (Tr. 211).
Mr. Mills confirmed that the son was 16 years old at the time
the house seat was built (Tr. 213).
With regard to the training citations, Mr. Mills confirmed
that the respondents "hired a safety man" and had some preliminary discussions with an individual who provides training for
the Chaney Creek Coal Company (Tr. 223). Respondent Curtis
Smith, who was present at the hearing, but was not called to
testify, confirmed that while this was true, the respondents
have not in fact taken any training (Tr. 223). When asked why
an inquiry would be made about training, if as claimed by the
respondents, that they were not engaged in a mining operation,
Bugene Mills responded "We were confused, and we didn't know
which way to go. Finally, we came to the point that we sought
legal help" (Tr. 224).

1170

Mr. Mills confirmed that some of the explosives in question were used to shoot some rock out of the road to the site
in question, and that some was used .-to blast sandstone from the
highwall. He also confirmed that the rest of the overburden
was removed and pushed away with the bulldozer and highlift
(Tr. 233).
Inspector Sorke was recalled in rebuttal, and he testified
that he filled out the MSHA Mine ID fonn in question in the
presence of Mr. Eugene Mills on the same day of his initial
visit to the site on November 16, 1987, and that the respondents signed it at that time. Mr. Sorke explained that since
the form was completed that day, he terminated Citation
No. 3004621, that same day (Tr. 215). Mr. Sorke reiterated
that the subject ot the house seat was not discussed on
November 16, and that this issue was first discussed on
~ovember 18, 1967 (Tr. 215).
Mr. Sorke confirmed t~at he wrote in the words "Coal
Company" on the mine ID form, and that when he asked the respondents for a company name to insert on the form, they responded
"Call us S HM Coal Company," and that is what he put on the
form (Tr. 218). Mr. Sorke stated that he still does not
believe Mr. Mills' assertion that the respondents were building
a house seat at the site, and after hearing Mr. Mills' testimony that he inquired about the price of coal in 1987,
Mr. Sorke remarked "I even believe it less now" (Tr. 219).
Mr. Sorke had no knowledge with respect to the abatement of the
training citations, and although he stated that the respondents
may have since received training, he was not certain (Tr.
221-222).
Mr. Sorke explained the hazard ramifications connected
with untrained persons who engage in strip mining, and the ~se
of explosives. MSHA considers such untrained individuals to be
hazards to themselves and to each other. Mr. Sorke confirmed
that he based his unwarrantable failure finding on the fact
that he believed that the respondents knew that they were
required to be trained before beginning any mining (Tr. 228).
He reiterated that he first spoke with Clarence Mills when he
was with Mr. Hollis on March 10, 1988, and that he did not
speak with him earlier because he had no reason to and did not
know who owned the property (Tr. 228). Mr. Sorke stated
further that when he left the site on November 18, 1987, after
speaking with Eugene Mills, he ass~~ed that the respondents
would go ahead and obtain their training (Tr. 230).
Mr. Sorke confirmed that after Mr. Eugene Mills told him
in ~ovember 18, that he was building a house seat for his

1171

uncle, he did not contact the uncle at that time (Tr. 230)~
Mr. Sorke further confirmed that he had no knowledge that
Mr. Hall had spoken with Clarence Mills until the day prior to
the hearing in this case (Tr. 230). When asked if he were
aware of the fact that Clarence Mills has been hauling building
materials to the foot of the site in question, Mr. Sorke
replied "No, but it will not surprise me in the least.
If I
was hunting a way out, I'd be hauling, too" (Tr. 231).
Mr. Sorke confirmed that although the equipment previously
mentioned was at the site on November 16, 1987, the only work·
he observed being done· was the sweeping of the exposed coal
with pushbrooms. When he returned on November 18, the equipment had been removed from the site, and Mr. Sorke confirmed
that he permitted the respondents to remove the equipment "as
long as they didn't touch that coal" (Tr. 248).
Findings and Conclusions
The Jurisdictional Question
The definition of "coal or other mine" found in 3(h)(l) of
the 1977 Mine Act is as follows:
"[C]oal or other mine" means (A) an area of
land from which minerals are extracted in nonliquid form or, if in liquid form, are extracted
with workers underground, (B) private ways and
roads appurtenant to such area, and (C) lands,
excavations, underground passageways, shafts,
slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other
property including impoundments, retention dams,
and tailings ponds, on the surface or underground, used in, or to be used in, or resulting
from, the work of extracting such minerals from
their natural deposits in nonliquid form, or if
in liquid form, with workers underground, or
used in, or to be used in, the milling of such
minerals, or the work of preparing coal or other
minerals, and includes custom coal preparation
facilities (emphasis added).
The definition of "coal or other mine" is further clarified by the Legislative History of the Act. The Senate Report
No. 95-181 (May 16, 1977) provides that:
Finally, the structures on the surface to be
used in or resulting from the preparation of the

1172

extracted minerals are included in the def inition of "mine." • • • [B]ut it is the
Committee's intention that what is considered to
be a mine and to be regulated under the Act be
given the broadest possibly (sic) interpretation, and it is the intent of this Committee
that doubts be resolved in favor ·of inclusion of
a facility within the coverage of the Act.

s. Rep. No. 181, 95th Cong., 1st Sess. 602, reprinted in (1977]
U.S. CODE CONG. & ADMIN. NEWS 3401, 3414.
The Joint Conference Committee continued along these same
lfnes in stating that related structures, equipment or facilities, even though not yet in use in connection with mining
activities, but which were to be used in connection with such
mine related activities, are to be included in the definition
of a mine.
(Conference Rep. No. 461, 95th Cong., lst Sess.
(1977) reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE
SAFETY AND HEALTH ACT 1279, 1316 (1977)).
As a remedial statute, the Act has been given broad interpretation and has been found to apply to a broad spectrum of
activities, including· prospecting, assessing value of ore
bodies and quarrying in one's backyard. Marshall v. Wait,
628 F.2d 1255, 1258 (9th Cir. 1980) (backyard rock quarry is
within the definition of a mine); Marshall v. Stoudt's Ferry
Preparation Co., 602 F.2d 589, 592 C3d Cir. 1979),
cert. denied, 444 U.S. 1015 (1980) (sand and gravel preparation
plant is a "mine" within the meaning of the Act); Secretary of
Labor v. Cyprus Industrial Minerals Corporation, 3 FMSHRC 1
(January 1981), aff'd by the Ninth Circuit Court of Appeals,
December 28, 1981, Cyprus Industrial Minerals v. FMSHRC and
Donovan, 2 MSHC 1554 (digging of a tunnel to assess the value
of talc deposits within the definition of a "mine").
The Commission has held that the actual extraction of
minerals is not a precondition for jurisdiction to apply. See:
Carolina Stalite Company, 3 MSHC 1759 (September 12, 1984);
Secretary ot Labor v. Alexander Brothers, 4 FMSHRC 541 (April
1982). See also Marshall v. Stoudt's Ferry Preparation Co.,
supra, and Ma.rsilall v. Tacoma Fuel Company, No. 77-10104-B
CW.D. Va. June 29, 1981, holding that extraction is not
required under the Act for coverage of preparation facilities.
In its posthearing brief, the petitioner cites the case of
Godwin v. Occupational Satety and Health Review Commission,
540 F.2d 1013 (9th Cir. 1976), a case arising under the Occupational Safety and Health Act relating to the growing of grapes.

1173

In that case the court found that the activity of clearing land
was a necessary part of the growing process, and that waiting
until the grapes were planted to find that the operation was
covered would be a meaningless gesture. Petitioner argues that
in like manner, the clearing and preparation of land for the
removal of coal is an integral and necessary activity in the
extraction of coal, and that in a strip mining operation the
majority of the work and effort involved in the mining operation is in such preparatory activities. I agree with the petitioner's position and I conclude and find that the preparation
of the land is an integral and necessary process in the extraction of coal and that such activities constitute mining and are
covered by the Act.
The thrust of the respondent's defense in this case is
that it was not conducting a strip mining operation, and that
it was engaged in clearing a site for the construction of a
house seat.
I find this contention to be lacking in credibility and it is rejected. For the reasons which follow, I
conclude and find that the preponderance of the evidence establishes that the respondent was engaged in a strip mining operation and was in the last phase of land preparation prior to the
actual removal of coal at the time Inspector Sorke arrived on
the scene and issued the citations.
The evidence in this case establishes that two of the
respondents, Eugene Mills and Curtis Smith, purchased explosives which were used in part to clear the site in question.
Inspector Sorke found evidence at the site that explosives had
in fact been used, and although some of the explosives were
used for other purposes, Eugene Mills admitted that some of it
was used to construct a roadway to the site and to blast sandstone from the highwall. Mr. Mills also admitted that the rest
of the overburden was removed and pushed away with a bulldozer
and highlift which were used at the site.
State of Kentucky Department of Natural Resources Special
Investigator Thomas Spellman testified that he flew over the
site in question and took aerial photographs of the site.
Mr. Spellman, who had previously investigated over 1,000 illegal strip mining operations, testified that the site, which he
described as approximately 122 feet long and 50 feet wide, had
all of the characteristics of a surface mining operation,
including a highwall, an exposed coal pit, and heavy equipment
parked in the area.
Kentucky Special Investigator Michael Hall, testified that
when he visited the site he observed the pit containing approximately 370 tons of exposed coal, overburden pushed over the

1174

site outslopes, and he indicated that extensive overburden· had
been removed to expose the coal. He was of the opinion that
the oper~tion was a mine site.
Kentucky investigator George Hollis testified that when he
visited the site in the company of MSHA Inspector Sorke, he
observed an open and exposed coal pit and a highlift or loader,
a small tractor, and a bulldozer. He also observed one of the
respondents, James Harris, sweeping off the top of the exposed
coal with a broom, and he believed that this was being done in
preparation of breaking up and loading out the coal. He testified that if the respondents merely intended to remove and push
the coal aside, there would be no need for cleaning it, and in
his opinion the site was an illegal strip mining operation
similar to many that he has observed during his experience as
an investigator. He confirmed that he posted a state closure
order at the site prohibiting the removal of any coal, and that
the order is still in effect and would require the respondents
to obtain a license befor~ they could remove any of the coal.
Inspector Sorke, who visited the site on at least two
occasions, testified that the respondents admitted that they
had cleared the site, and he found evidence that explosives
were used to· shoot and create the highwall.
He also observed a
bulldozer, a tractor with a scraper pan attached to the rear,
and a highlift at the site, and further observed that pushbrooms were being used to sweep the coal in preparation for its
removal. He stated that the sweeping of the coal would be the
last step in preparing it for removal. After taking measurements, he estimated th~t the coal pit was approximately
150 feet long and 50 feet wide, and that the exposed coal was
approximately 2 feet in depth. He confirmed that the highwall
was approximately 60 feet high at its center, and approximately
42 in height at each end. He further estimated that the coal
pit contained approximately 488 tons of freshly exposed coal,
and he believed that it could have been removed in one day.
Based on his observations, and prior experience, Mr. Sorke
concluded that the site in question was in fact a mine site.
Mr. Clarence Mills, the owner of the property where the
site in question is located, did not testify in this case, and
the record establishes that he has impaired hearing and is mute.
At the request of the respondent's counsel, a hearing impaired
interpreter was provided at the hearing, but counsel did not
call Mr. Mills as a witness. The only witness testifying for
the respondent at the hearing was Eugene Mills, one of the
three individuals who cleared the site in question.
None of
the other partners in this venture testified.

1175

Eugene Mills testified that the respondents never intended
to mine any coal, and that they cleared the site in expectation
of constructing a house seat for his uncle who wanted to build
a house for his 16 year old son. Mr. Mills contirmed that he
had an "oral contract" with his uncle to construct the site and
that he has never been paid for the work. There is no evidence
that a building or clearing permit was obtained for the work,
and no proposed house plans were ever produced. Mr. Mills
testified that when Inspector Sorke arrived at the site with
the two state inspectors, he intormed Mr. Sorke that the respondents were constructing a house seat. Mr. Sorke testified that
when he initially visited the site on November 16, 1987, none
of the respondents said anything to him about building a house
seat, and that they told him this when he next returned on
November 18, 1987. Special Investigator Hollis testified that
when he visited the site on November 16, 1987, in the company
of Mr. Sorke, none of the respondents mentioned anything about
building a house seat.
I find Mr. Sorke's testimony, corroborated by Mr. Hollis, to be more credible than that of Eugene
Mills, and I conclude and find that Mr. Mills did not intorm
Mr. Sorke that he was constructing a house seat at the time
Mr. Sorke initially visit the site, and that this contention on
Mr. Mills' part came at a later time.
Investigator Hall, who interviewed Clarence Mills on
November 23, 1987, testified that Mr. Mills informed him that
he was having a house seat constructed on the site, but
Mr. Hall did not believe him because he had recently constructed a house and found that it was unnecessary to dig as
deep as the site in question was being dug for a house seat.
Mr. Hall also testified that Mr. Mills informed him that
although he intended to have a house seat constructed, the
respondents "ran into coal," and Mr. Mills wanted to know what
he could do to "stay out of trouble."
Investigator Hollis testified that he spoke with Clarence
Mills on March 10, 1988, in the company of Mr. Sorke, and that
Mr. Mills said nothing about hiring the respondents to construct a house seat. Mr. Hollis stated that Mr. Mills was only
interested in knowing whether he could use the coal tor his own
purposes, and that he (Hollis} answered Mr. Mills' questions
about removing "house coal" and the state requirements tor
obtaining a mine permit and filing mine plans.
Inspector Sorke, who spoke with Clarence Mills on more
than one occasion before and after the site was closed, confirmed that Mr. Mills informed him that the respondents were
constructing a house seat. Mr. Mills also inquired as to
whether it would be legal to remove any ot the coal from the

1176

site, and Mr. Sorke explained MSHA's requirements to him.
Although Mr. Sorke did not completely discount the possibility
that a house could be constructed on the site in question, he
obviously did not believe that this was the case. Mr. Sorke
commented that "no one in their right mine would build a house
on coal," and he stated that in his 10-1/2 years of experience
he has never seen a house constructed on a site similar to the
one in question. He also alluded to the fact that in prior
instances when he has encountered illegal strip mines, he has
been told "hundreds of times" that house seats were being constructed, but he never saw a house built at any of these sites.
Mr. Sorke was also of the opinion that the site in question was
not conducive to the construction of a house because of steep
terrain, the manner in which the site was being cleared, and
the fact that one would need a tractor or four-wheel drive
vehicle to reach the site.
Mr. Eugene Mills further testified that he had no prior
knowledge of the existence of any coal seam at the site in question, and that once the coal was exposed, the respondents only
intended to remove it and pile it aside to finish the house
seat (Tr. 202). He confirmed that he had no knowledge as to
the actual depth of the exposed coal seam, and that in order to
remove the coal to reach a suitable house seat depth, he would
have had to dig another 6 or 8 feet, or "maybe more" (Tr. 184,
203).
In my view, such further digging would create an even
higher highwall, and I seriously doubt that anyone would have
constructed a house at the site in question. Having viewed the
site at the conclusion of the hearing, I found that access to
the purported location of the house seat was extremely diff icult, even on foot while walking up to the site along steep
inclines.
Mr. Mills also confirmed that in July or August of 1987,
and prior to the clearing of the purported house seat, the
respondents were engaged in the business of removing creek rock
from Mill Creek, using the same equipment, and that the rock
was trucked to Lexington for sale on the open market (Tr.
194-195).
I believe that the respondents intended to do the
same thing with the coal which they were cleaning prior to its
extraction, and that they would have done so had the inspectors
not discovered the site.
After careful consideration of all of the evidence and
testimony presented in this case, I reject the respondents
contention that they were clearing the site for a.house seat,
and I conclude and find that they were engaged in a surface
mining operation subject to the Act.

1177

Interstate Commerce Issue
Article I, Section 8, Clause 3 ,. of the Cons ti tut ion gives
Congress the power to "regulate commerce • • • among the
several States." The U.S. Supreme Court has a long history of
upholding Federal regulations of ostensibly local activity on
the theory that such activi~y may have some affect on interstate commerce. Local activities, regardless of their size and
their appearance as purely intrastate, may in fact affect interstate commerce if the activity falls within a class of regulated activity. See: Wickard v. Filburn, 317 U.S. 111 (1942);
Fry v. United States, 421 U.S. 542 (1975).
In Perez v. United
States 402 U.S. 146, 155 (1971), the court held that where a
class of activities is regulated and that class is within the
reach of Federal power, the courts have no power to exclude "as
trivial" individual instances of the regulated activity.
Section 4 of the 1969 Coal Act, which is applicable in
this case, states as follows with regard to the mines subject
to the Act:
"Each coal or other.mine, the products of which
enter commerce, or the operations 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."
The 1977 Mine Act is intended to assure safe and healthful
working conditions for miners, and Congress clearly stated its
findings and purposes in this regard in the 1969 Coal Act, as
well as in the 1977 Act which extended jurisdiction of the coal
Act to all mining activities. The Congressional findings and
purposes are set forth in section 2 of the 1969 Act, and they
are equally applicable to all mines. Some of these findings
and purposes are as follows:

*

*

*

*

*

*

*

Cc>
there is an urgent need to provide
more effective means and measures for improving
the working conditions and practices in the
Nation's coal mines in order to prevent death
and serious physical harm, and in order to
prevent occupational diseases originating in
such mines;
Cd)
the existence of unsafe and unhealthful conditions and practices in the Nation's
coal mines is a serious impediment to the future

1178

growth of the coal mining industry and cannot be
tolerated;

*

*

*

*

*

*

*

Cf)
the disruption of production and the
loss of income to operators and miners as a
result of coal mine accidents or occupationally
caused diseases unduly impedes and burdens
commerce.
[Emphasis added.]
Perez v. United States, 402 U.S. 146 (1971), held that
Congress may make a finding as to what activity affects interstate commerce, and by doing so it obviates the necessity for
demonstrating jurisdiction under the commerce clause in individual cases. Thus, it is not necessary to prove that any particular intrastate activity affects commerce if the activity is ·
included in a class of activities which Congress intended to
regulate because that cla~s affects commerce.
Mining is among those classes of activities which are covered by the Commerce Clause of the United States Constitution
and thus is among those classes which are subject to the
broadest readhes of Federal regulation because the activities
affect interstate commerce. Marshall v. Kraynak, 457 F. Supp.
907, CW.D. Pa. 1978), aff'd 1 604 F.2d 231 (3d Cir. 1979),
cert. denied, 444 U.S. 1014 (1980).
Further, the legislative
history of the Act, and court decisions, encourage a liberal
reading of the definition of a mine found in the Act in order
to achieve the Act's purpose of protecting the safety of miners.
Westmoreland Coal Company v. Federal Mine Safety and Health
Review Commission, 606 F.2d 417 (4th Cir. 1979). See also:
Godwin v. Occupational Safety and Health Review Commission,
540 F.2d 1012 (9th Cir. 1976), where the court held that unsafe
working conditions of one operation, even if in initial and
preparatory stages, influences all other operations ·similarly
situated, and consequently affect interstate commerce.
The courts have consistently held that mining activities
which may be conducted intrastate affect commerce sufficiently
to subject the mines to Federal control.
See: Marshall v.
Kilgore, 478 F. Supp. 4 (E.D. Tenn. 1979);--secretary ot the
Interior v. Shingara, 418 F. Supp. 693 (M.D. Pa. 1976);
Marshall v. Bosack, 463 F. Supp. 800, 801 (E.D. Pa. 1978).
Likewise, Commission judges have held that intrastate mining
activities are covered by the Act because they affect interstate commerce.
See: Secretary of Labor v. Rockite Gravel
Company, 2 FMSHRC 3543 (December 1980); Secretary ot Labor v.
Klippstein and Pickett, 5 FMSHRC 1424 (August 1983); Secretary

1179

of Labor v. Haviland Brothers Coal Company, 3 FMSHRC 1574 (June
1981); Secretary of Labor v. Mellott Trucking Company,
10 FMSHRC 409 (March 1988).
A state highway department operating an intrastate open
pit limestone mine, the product of which is crushed, broken and
used to maintain county roads was held to be subject to the Act.
Ogle County Highway Department, 1 FMSHRC 205 (January 1981).
A crushed stone mine operation that had an MSHA "Mine ID"
number and was inspected by MSHA was held to be subject to the·
Act because the sales of rock products, as well as the use of
equipment manufactured out of state, affected commerce within
the meaning of the Act's jurisdictional language. Tide creek
Rock Products, 4 FMSHRC 2241 (December 1982). See also:
Southway Construction Co., 6 FMSHRC 174 (January 1984'T:'"
A gravel mine operator conducting activities solely within
a state was held to be subject to the Act because its local
mining activity had an impact on interstate market. Rockite
Gravel Co., 2 FMSHRC 2543 (December 1980), Commission Review
Denied January 13, 1981; Scoria Products Branch, Ultro, Inc.,
6 FMSHRC 788 (March 1984); Southway Construction Co., supra.
I conclude and find that the intent of the 1977 Mine Act,
as well as the preceding 1969 Coal Act, as manifested by the
legislative history, is that it is to be broadly construed so
as to apply to all of the nation's mines as a class of activity
which affects commerce, and the cited cases supports this
conclusion. Accordingly, I further conclude and find that the
respondent's mining operation is covered by the 1977 Mine Act
and affects commerce within the meaning of the Act, and that
the respondent is within reach of the Act.
The Respondent's Liability
In response to the petitioner's pretrial discovery
requests, counsel for the respondents surnnitted a copy of a
Commonwealth of Kentucky Certificate of Incorporation, and
Articles of Incorporation, for a Corporation identified as the
"SHS Corporation," and the registration agent is shown as James
Harris, one of the individuals who along with Curtis Smith and
Eugene Mills, were engaged in the mining activity in question
in this case. However, I find no particular connection with
this corporation and the work being performed by these
individuals in connection with the mine site in question.
Exhibit ALJ-1 is a copy of an MSHA Mine Legal Identification form, and it retlects that Mr. Harris, Mr. Smith, and

1180

r.•

Mr. Mills were partners operating the SHM Coal Company, under
MSHA Mine Identitication Number 15-16245. There is a dispute
as to who prepared and filled out the form. Although Eugene
Mills conceded that he and the other individuals signed the
form, he claimed that it was not tilled out when they signed it.
He also claimed that atter Inspector Sorke intormed him that he
needed a company name to put on the form, he told Mr. Sorke
that "SHM Construction sounds good to me," and asked Mr. Sorke
to use that name on the torm. Mr. Sorke claimed that he tilled
out the form in the presence of Mr. Mills on the same day of
his initial visit to the site on November 16, 1987, and that
all three individuals signed it that same day. Mr. Sorke
turther claimed that Mr. Mills told him to use the name "SHM
coal Company," and that he inserted this name on the form.
The form in question, on its face, is dated November 16,
1987, the same day that Mr. Sorke issued Citation No. 3004621,
citing the respondent with a violation ot section 41.10, for
not submitting the legal identity torm to MSHA. Mr. Sorke
explained that he terminated the citation that same day atter
the form was executed by the respondents, and he contirmed that
he knew that no legal identity form was on file with MSHA
betore he visited the site. He also indicated that he had
verbally issued all ot· the citations on November 16, but
reduced them to writing and actually served them on the respondent on November 18, and that he did so because he had to
include the mine identity number on the citations torms.
I
tind Mr. Sorke's explanation to be reasonable and credible.
Irrespective of the information on the form, the evidence
adduced in this case establishes that the three individuals in
question were conducting a mining operation, and that they were
doing so in association with each other as independent contractors. As such, they are clearly accountable and liable tor
their actions, including the violations and any civil penalty
assessments tor those violations.
Fact ot Violations
Docket No. KENT 88-159
In this case the respondent is charged in a section
l04Cd)(l) "S&S" citation with a single violation of the training requirements of 30 C.F.R. § 48.25(a), because Mr. Mills,
Mr. Harris, and Mr. Smith had not received the new miner training required by this regulation. The respondent has not
rebutted the reliable and probative evidence presented by the
petitioner in support of the violation, and I conclude and tind

·~

that it establishes a violation.
AFFIRMED.

Accordingly, the violation IS

Docket No. KENT 88-104
In this case, the respondent is charged in a section
104(a) non-"S&S" citation with a violation of the mine operator
notification requirements found in 30 C.F.R. § 41.10. The
reliable and probative evidence presented by the petitioner
clearly establishes that the respondent did not file the
required report in compliance with the cited regulation.
Accordingly, I conclude and find that a violation has been
established, and it IS AFFIRMED.
The respondent is also charged in a section 104Cd)(l)
"S&S" order with a failure to submit a training plan as
required by mandatory training standard 30 C.F.R. § 48.23(a)(3).
The reliable and probative evidence presented by the petitioner
establishes that the respondent did not file any training plan,
and I conclude and find that a violation has been established.
Accordingly, it IS AFFIR~ED.
Significant and Substantial Violations
A "significant and substantial" violation is described in
section 104(d)(l) of the Mine Act as a violation "of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. § 814Cd>Cl). A violation is properly designated significant and substantial "if, based upon the particular facts surrounding the violation there exists a reasonable
likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "signif icant and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove:
Cl) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety-contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury

1182

f:
,.-

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 104Cd){l), it is the contribution of a violation to the cause and effect of
a hazard that must be significant and substantial.
U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 {August 1984); U.S. Steel Mining
Company, Inc., 6 FMSH.RC 1573, 1574-75 (July
19 84) •
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 ot Labor v. Texasgulf, Inc., 10 FMSHRC 498
{April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
CDecember 19 8 7) •
Unwarrantable Failure
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and i~ held in pertinent part as follows at
295-96:
In light of the foregoing, we hold that an
inspector should find that a violation of any
mandatory standard was caused by an unwarrantable failure to comply with such standard if he
determines that the operator involved has failed
to abate the conditions or practices constituting such violation, conditions or practices the
operator knew or should have known existed or
which it failed to abate because of a lack of
due diligence, or because of indifference or
lack of reasonable care.
In several recent decisions concerning the interpretation
and application of the term "unwarrantable failure," the

1183

Commission further refined and explained this term, and concluded that it means "aggravated conduct, constituting more
than ordinary negligence, by a mine .operator in relation to a
violation of the Act." Emery Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC
2007 (December 1987); Secretary of Labor v. Rushton Mining
Company, 10 FMSHRC 249 (March 1988). Referring to its prior
holding in the Emery Mining case, the Commission stated as
follows in Youghiogheny & Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is conduct that is "inadvertent," "thoughtless" or
"inattentive," unwarrantable conduct is conduct
that is described as "not justifiable" or
"inexcusable." Only by construing unwarrantable
failure by a mine operator as aggravated conduct
constituting more that ordinary negligence, do
unwarrantable failure sanctions assume their
intended distinct place in the Act's enforcement
scheme.
In Emery Mining, the Commission explained the meaning of
the phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary meaning of
the phrase "unwarrantable failure."
"Unwarrantable" is defined as "not justifiable" or "inexcusable." "Failure" is defined as "neglect of
an assigned, expected, or appropriate action."
Webster's Third New International Dictionary
(Unabridged) 2514, 814 (1971) ("Webster's").
Comparatively, negligence is the failure to use
such care as a reasonably prudent and careful
person would use and is characterized by "inadvertence," "thoughtlessness," and "inattention."
Black's Law Dictionary 930-31 (5th ed. 1979).
Conduct that is not justifiable and inexcusable
is the result of more than inadvertence, thoughtlessness, or inattention. * * *
In Youghiogheny & Ohio Coal Company, 10 FMSHRC 603 (May
1988), the Commission, citing UMWA v. Kleppe, 532 F.2d 1403
CD.C. Cir. 1976), cert. denied sub nom. Bituminous Coal Operators• Assn., Inc., v. Kleppe, 429 U.S. 1405, held that while a
signit1cant and substantial finding is a prerequisite for the
issuance of a section 104(d)Cl) citation, there is no such
~equirement for the issuance of a section 104(d)(l) order.

1184

The petitioner's posthearing brief does not address in any
detail the alleged unwarrantable nature of the section
104Cd)(l) citation and order, or the significant and substantial findings made by the inspector. The brief is limited to
the following argument made at page 5:
The failure of the respondent to obtain
miner training and file mine plans prior to
beginning mining was likely to result in a
fatality because of the use of explosives,
because of the lack of inspection of equipment
used on the site, and because of the failure to
use basic safety equipment such as hard hats and
steel toe shoes on the site. The requirement of
training and the filing of pre-mining plans are
basic to the Federal Mine Safety regulatory
scheme. Allowing respondent to mine without
meeting these requirements def eats the purpose
of the Act.
During the direct questioning and cross-examination of
Inspector Sorke, no testimony was forthcoming with respect to
his unwarrantable failure and significant and substantial
findings, and he offered no reasons for making these findings.
However, when called in rebuttal by the petitioner, and after
questions from the court, Mr. Sorke testified as follows with
respect to the hazard ramifications in connection with the lack
of training (Tr. 225-227):
Most people that do strip m1n1ng, and we've
heard them say they are not strip miners, they
are not miners, have had initial training for
new hired miners.
This alerts them to the dangers involved in
this work, and what could happen to them during
this type of work, considering the type of
machinery they use, the area, and the control
that they must provide for the highwall, and all
those type things.

Q.

If you assume that this is a mining operation, what kind of hazards would you expect them
to be exposed to that the training would help
them in dealing with?

A. Falling material from the highwall; as far
as knowing how to properly operate the equipment, knowing that when you are using equipment

1185

on elevated roadways and everything that berms
are required; to keep over travel of equipment;
knowing the condition the equipment is supposed
to be in, and that's supposed to be handled;
what records are required for that type of
equipment.

Q. What about the use of explosives on that
site?
A. Explosives are also in the training.
Besides getting the training that I mentioned,
they get first aid training for any accident
that would happen on the site. They also would
receive the proper use, handling and storage of
explosives. If there is a site, and this one is
not, where electricity is there, they get the
proper use of electricity on a certain
installation.
There are several areas; you know, I could
keep going on and on and tell you things that
they would get in training that just the normal
construction worker has no idea about.

Q. What kind of accidents would you foresee as
a result of working without that miner training?
A. Anytime that MSHA finds an untrained person,
we consider him a hazard to himself and everybody there. We feel like we could have a
fatality, just from him not knowing the things
about safety at a mining operation that he needs
to know. That's why we always issue the G Order
and remove those people until they have had this
proper training.
When asked whether the withdrawal of the respondents
pursuant to section 104(g)(l) of the Act was the reason for his
significant and substantial and unwarrantable failure findings,
Inspector Sorke responded as follows (Tr. 227):

Q. Is that why you also found the unwarrantable
and the s & s in this case?
A. Part of it.
I mean, there's a lot of things
that you have to consider.

1186

Q. What other factors did you consider in
issuing the unwarrantable?
A.
!n an unwarrantable failure, you have to
consider:
one, that it's either a violation ot
mandatory safety health standards or not1 and
the two, the operator either knew or he should
have know -JUDGE KOUTRAS: Is that your position here that
knew or should have known this was a mining
operation?
THE WITNESS:
Yes, sir.
not should have .Known.

It's that they knew,

Inspector Sorke testified that atter his initial contact
with the respondents at the mine site, he assumed that they
would take the necessary steps to obtain a legal mine plan and
to receive training, and he believed that the respondents may
have visited another MSHA inspector at his home to obtain
further information in this regard (Tr. 54, 71). At the
hearing, the respondents who were present contirmed that they
had made an initial contact with an individual who conducts
training for another coal company, but that they did not avail
themselves of any training (Tr. 223). Respondent Eugene Mills
confirmed that he had a preliminary talk with a "safety man"
who was hired, and when asked why he did not follow through
with any training, he responded "everyone we talked to kept
advising this and that. We were contused, and didn't know
which way to go. Finally, we came to the point that we sought
legal help" (Tr. 224).
Inspector Sorke confirmed that while it is common tor mine
operators who are operating illegal mines to have someone
serving "in the woods as a watch-out," he was not aware of any
such activity at the site in question. H~ also confirmed that
in such situations, both he and the operator are apprehensive
and scared, and that in this case the individuals at the site
did not tlee or attempt to run trom the site (Tr. 215-217).
Mr. Sorke confirmed that although several other individuals
present at the scene "scattered and walked off the hill," the
three named respondents stayed (Tr. 52). He also confirmed
that no harsh words were spoken, and that he engaged in a
triendly conversation with the respondents (Tr. 54)~ Further,
aside trom the inspector's mentioning the tact that one ot his
fellow inspectors had seen Mr. Harris on "some jobs," he had no

1187

knowledge that any of the respondents had any previous connection with any other mining activities, or had ever been
employed in coal mining (Tr. 103-104).
After careful review and consideration of all of the evidence in these proceedings, I cannot conclude that it supports
any finding or conclusion that the violation concerning the
respondent's failure to receive new miner training (48.25(a)),
or the violation for the failure to submit a mining training
plan C48.23(a)(3)), constitute unwarrantable failure violations.
I find no aggravated conduct on the part of the respondents,
and the inspector confirmed that he based his findings in this
regard on the fact that the respondent "knew or should have
known" about the cited training regulations in question.
Further, although the inspector marked the citation and order
"high negligence," no testimony was forthcoming as why he did
this, other than his belief that the respondent "knew" about
the training regulations. Under the circumstances, the inspector's unwarrantable failure findings ARE REJECTED AND VACATED.
With respect to the inspector's significant and substantial finding relating to the lack of new miner training
(48.25(a)), there is no credible evidence showing that any of
the individuals who were engaged in the mining activity in question were experienced miners, or had ever worked in the mining
industry. Although none of the other respondents testified in
this case, Eugene Mills confirmed that he had never before been
involved in any coal mining (Tr. 191).
The intent of the new miner training regulations is to
promote mine safety by insuring that new miners are trained in
a number of safety and health subjects, including their new
work environment, ground control, working around highwalls,
~-hazard recognition, and the use of explosives in a mining envir·~
oninent. In enacting the withdrawal provisions for untrained
miners pursuant to section 104(g)(l) of the Act, Congress recognized and declared that untrained miners are hazards to themselves and to others, and I conclude and find that the failure
of new miners to receive the requisite training pursuant to the
Act and MSHA's regulations is in itself a safety hazard.
The evidence in this case establishes that the respondents
had engaged in work activities connected with the blasting and
removal of overburden, the use of a bulldozer and other equipment, and the establishment of a 60 foot highwall. Mr. Mills
confirmed that explosives were used to shoot the slate, stone,
and large rocks from the highwall (Tr. 193). He also confirmed
that the equipment was used to remove the overburden and push
it over the steep hill and embankment adjacent to the site.

1188

funder these circumstances, I conclude and find that the individuals in question were exposed to the hazards inherent in such
activities, and that their lack of training presented a reasonable likelihood of an injury or accident of a reasonably
serious nature. Accordingly, I conclude and find that the
violation was significant and substantial, and the inspector's
finding in this regard IS AFFIRMED.
With regard to the inspector's significant and substantial
finding in connection with the violation for the failure to
file a training plan C48.23(a)(3)), I find no credible probative evidence to establish that the failure to file such a plan
cqnstituted a significant and substantial violation. The
inspector's testimony in this case is totally lacking in any
support for such a finding.
Under the circumstances, the
inspector's finding IS REJECTED AND VACATED.
In view of the foregoing findings and conclusions, including the rejection of the inspector's unwarrantable failure findings, section 104(d)(l) Order No. 3004623, November 16, 1987,
citing a violation of 30 C.F.R. § 48.25(a), for the failure to
provide training for the three cited individuals in question is
modified to a section_l04(a) citation, with "S&S" findings, and
IT IS AFFIRMED.
Section 104(d)(l) Order No. 3004624, November 16, 1987,
citing a violation of 30 C.F.R. § 48.23(a)(3), for the failure
to submit a mine training plan is modified to a section 104Ca)
citation, with non-"S&S" findings, and IT IS AFFIRMED.
Section 104(a) non-"S&S" Citation No. 3004621,
November 16, 1987, citing a violation of 30 C.F.R. § 41.10, for
failing to submit the required mine legal identity report IS
AFFIRMED AS ISSUED.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
The evidence establishes that the mining operation in question was very small and was being operated by three individuals
of unknown means and assets. The site has been closed by the
State of Kentucky and MSHA's withdrawal orders. The individuals in question submitted no evidence with respect to the
impact of any civil penalty assessments on their ability to pay
such assessments. Aside from Mr. Eugene Mills, who testified
in this case, there is no information as to whether or not the
other individuals engaged in the mining activity in question
are gainfully employed.
Absent any evidence to the contrary, I

1189

cannot conclude that the payment of the civil penalty assessments will adversely affect the respondents.
History of Prior Violations
The respondent has no known history of prior violations.
Gravity
With the exception of the new miner training violation, I
conclude and find that the remaining two violations were
non-serious. With respect to the new miner training violation,
I conclude and find that it was serious.
Negligence
In view of my unwarrantable failure findings, I conclude
and find that all of the violations which have been affirmed in
these proceedings resulted from the respondent's failure to
exercise reasonable care, and that this constitutes ordinary
negligence.
Good Faith Compliance
As stated above, the mine site in question is closed, and
the violations remain unabated because of that closure. Under
the circumstances, I cannot conclude that the respondents have
abated the violations in good faith, and I doubt very much that
they will have any opportunity to do so, or ever intend to.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llO(i) of
the Act, I conclude and find that the following civil penalty
assessments for the violations which have been affirmed are
reasonable and appropriate in the circumstances of these
proceedings:
Docket No. KENT 88-104
Citation No.

Date

3004021
3004624

11/16/87
11/16/87

30 C.F.R. Section
41.10
48.23(a)(3)

1190

Assessment
$ 20
$ 20

Docket No. KENT 88-159
Citation No.

Date

3004623

11/16/87

30 C.F.R. Section
48.25Ca>

Assessment
$150

ORDER
The respondent IS ORDERED to pay civil penalty assessments
in the amounts shown above within thirty (30) days of the date
of these decisions. Upon receipt of payment by the petitioner,
this matter is dismissed.

~~~

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 Mail)
John T. Aubrey, Esq., Aubrey & Bowling, 303 Main Street, Post
Office Box 670, Manchester, KY 40962 (Certified Mail)

/f b

1191

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

JUN 201989
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 89-6-M
A.C. No. 41-03449-05501

v.
Tanner Sand & Gravel
TANNER SAND & GRAVEL,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Before:

Sara D. Smith, Esq., Office of the Solicitor
U.S. Department of Labor, Dallas, Texas for
the Secrertary of Labor;
Mr. Sammy Tanner, prose, Hutchins, Texas.

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety
and Health Act of 1977 (the Act). At hearing Petitioner in
effect moved to approve a settlement agreement and to dismiss
the case. Respondent has agreed to pay the proposed penalty
of $40 in full.
I have considered the representations and
documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set
forth in Section llO(i) of the Act.

i~f

WHEREFORE, the motion for approval
settlemen \ is
GRANTED, and it is ORDERED that Responde t pay a pen ity of
$40 within 30 days of this orde

\

r lJJl~,,1\1;~ I~--

(.\

,l'

Gary Me

) , ,

. . . _,
__ j
Law., Judge
(703) 756~~261
\
~ck

Administ~ative

\

Distribution:

\
\

Sara D. Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail>
Sammy Tanner, Partner, Tanner Sand & Gravel, P.
Hutchins, TX 75141 (Certified Mail)
nt
1192

o. Box 291,

'·

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

22041

JUN 201989
WILLIAM WAYT,

DISCRIMINATION PROCEEDING
Complainant

v.
CONSOLIDATION COAL COMPANY,
Respondent

.
.
.

Docket No. WEVA 89-114-D
MORG CD 89-2
Ireland Mine

ORDER OF DISMISSAL
Betore:

Judge Maurer

The Complainant, William Wayt, requests approval to withdraw
his Complaint in the captioned case on the grounds that he has
reconsidered his decision to proceed with the Complaint and no
longer desires a hearing concerning this matter. Under the
circumstances herein, permission to withdraw is granted.
29 C.F.R. § 2700.11. The case is theretore dismissed.
Accordingly, the hearing presently scheduled for June 29,
1989, in Morgantown, West Virginia, is cancelled.

aurer~

rative Law Judge

Distribution:
Thomas M. Myers, Esq., District Six, United Mine Workers of
America, 56000 Dilles Bottom, Shadyside, Ohio 43947 (Certified
Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certitied Mail)
/ml

1193

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

22041

JUN 201989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF CHARLES
ARLES HERREN,
Complainant

DISCRIMINATION PROCEEDING
Docket No. CENT 89-25-D
DENC CD 88-14
Jewett Mine

v.
DON GRIFFITH CONSTRUCTION,
Respondent
DECISION APPROVING SETTLEMENT
ORDER OF DISMISSAL
Before:

Judge Broderick

On June 18, 1989, the Secretary filed a new motion to
approve settlement and an amended settlement agreement.
By the settlement agreement, Respondent will pay to Charles Herren
the sum of $2000 "in full payment of all backwages and damages
alleged dur in this case." The $2000 represents three weeks
back wages.
Respondent completed its job and laid off all
its crew at the worksite, three weeks after Herren left its
employ.
I have considered the motion in the light of the purposes
of section 105(c) of the Act and conclude that it should be
approved.
Accordingly, the settlement agreement is APPROVED, and,
subject to the payment by Respondent of $2000 to complainant
Herren, this proceeding is DISMISSED.

1'arttz5 ffint'c:~,.fA-/e-!~,

iJI James A. Broderick
j

Administrative Law Judge

Distribution:
Brian Pudenz, Esq., U.S. Department of Labor, Office of the
Solicitor, 525 s. Griffin St., Suite 501, Dallas, TX 75202
(Certified Mail)
Mr. Robert Hollenshead, President, Don Griffith Construction,
Inc., P.O. Box 189, Carthage, TX 75633 (Certified Mail)
slk

1194

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

JUN 201989 .·

.
.

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 88-113
A.C. No. 15-15665-03512

.

Docket No. KENT 88-114
A.C. No. 15-15665-03513

KT K MINING AND CONSTRUCTION,:
COMPANY,
Respondent

Docket No. KENT 88-125
A.C. No. 15-15665-03514
Docket No. KENT 88-13-0
A.C. No. 15-15665-03515
Docket No. KENT 88-141
A.C. No. 15-15665-03516
K T K No. 2 Mine

DECISION
Appearances:

w. F. Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee
for Petitioneri
Barbara Krause, Esq., Smith, Heenan & Althen,
Washington, D.C., for Respondent.

Before:

Judge Melick

These cases are before me upon petitions for civil
penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). At hearing and post hearing
Petitioner filed motions to approve settlement agreements and
to dismiss the cases. The following reductions in penalty
have been proposed:
Agreed Penalty

Original Proposed Penalty
Docket No.
Docket No.
Docket No.
Docket No.
Docket No.

KENT
KENT
KENT
KENT
KENT

88-113
88-114
88-125
88-130
88-141

$3,157
- 16,331

-

-

80
1,294
460

1195

$ 335.00
2,826.00
13.32
824.33
148.33

I have considered the representations and documentation
submitted in these cases, and I conclude that the proffered
settlement is appropriate under the criteria set forth in
Section llOCi> of the Act.
WHEREFORE, the motions for approval of settlement are
GRANTED, and it is ORDERED that Respondent pay the following
penalties within 30 days of this order:
Docket No.
Docket No.
Docket No.
Docket No.
Docket No.

88-113
88-114
88-125
88-130
88-141

- $ 335.00
2,826~00
13~32
82~ 33
148 33

!Uv
/

ary Mel'cK
dminist ative L
(703) 7,5 -6261 I

Judge

I

Distribution:

.
.I .
w. F. Taylor, Esq., G. Elaine
Smi~h, Esq., Office of the

Solicitor, U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215 (Certified Mail)
Barbara L. Krause, Esq., Smith, Heenan & Althen, Suite 400,
1110 Vermont Avenue, N.W., Washington, D.C.
20005-3593
(Certified Mail)
nt

1196

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

22041

JUN 211989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner

v.

CIVIL PENALTY PROCEEDING

.

BANDAS INDUSTRIES INCORPORATED:
Respondent

Docket No. CENT 89-30-M
A.C. No. 41-01786-05525
Docket No. CENT 89-42-M
A.C. No. 41-01786-05526
Nolanville Quarry Plant

DECISION
Appearances:

Before:

Michael Olvera, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
for Petitioner;
Robert Bandas, Vice President Bandas
Industries, Inc., Temple, Texas for
Respondent.

Judge Melick

These cases are before me upon the petitions for civil
penalty filed by the Secretary of Labor pursuant to sectiori
105Cd} of the Federal Mine Safety and Health Act of 1977,
30 o.s.c. § 801 et seq., the "Act," charging Bandas
Industries, Inc., (Bandas) with 24 violations of regulatory
standards. The general issues before me are whether Bandas
violated the cited regulatory standards and, if so, the
appropriate civil penalty to be assessed in accordance with
section llOCi} of the Act.
At hearing the Secretary moved for the approval of a
settlement agreement with respect to 18 of the citations at
bar. She has submitted sufficient information to show that
the proffered settlement is appropriate under the criteria
set forth in section llO(i) of the Act. Accordingly an order
will be incorporated in this decision approving the proposed
settlement and directing payment of the agreed upon
penalties.
At hearing the Secretary also moved to withdraw and
vacate Citation No. 3276776 acknowledging that she did not
have the necessary expert testimony to support the citation.
Under the circumstances the motion to withdraw was granted.
In addition, the inspector who issued Citation

1197

No. 3276766 acknowledged at hearing that he could not recall
the specific facts regarding the nature of the alleged
violative conditions. Accordingly, in the absence of
probative evidence in support of .the alleged violation the
citation was dismissed at hearing. Three citations therefore
remain at issue.
Citation No. 3276600 alleges a "significant and
substantial" violation of th~ standard at 30 C.F.R. § 56.9087
and charges as follows:
Allegation: A caterpillar 988A front-end loader
was provided with a back-up alarm which was not
automatic. Violation: the caterpillar 988A
front-end loader company number 145 was not
provided with an operable back-up alarm. The unit
was operating in the pit area loading haul trucks.
The driver's view to the rear was obstructed and no
ground observer was used to signal the driver when
backing up. No evidence was found to indicate the
back-up alarm was not automatic.
The cited standard, 30 C.F.R.
follows:

§

56.9087, provides as

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 Robert Lemasters of the Federal Mine
Safety and Health Administration (MSHA) testified that
he had observed the cited the front-end loader at about
1300 hours on September 13, 1988, operating without an
operable back-up alarm and with no one in the area
acting as a ground observer. Lemasters also observed
·that the view to the rear of the front-end loader was
obstructed for about 15 feet behind. He testified that
he had observed some of the haul truck drivers outside
of the truck cabs walking in the vicinity of the
front-end loader. According to Lemasters these drivers
were thereby exposed to the hazard of being run over.
Based on this evidence and reports of "Fatalgrams"
(MSHA reports involving similar violations causing
fatalities) Lemasters opined that a fatality was
reasonably likely under the circumstances.

1198

Lemasters found only low negligence because of
evidence that the cited equipment had been examined
before the shift began and had been reported as properly
functioning at that time. The violation was promptly
abated when a ground wire was reconnected. These
findings are not disputed~
Robert Bandas, Vice President of the Respondent,
testified that in his opinion it would be extremely
remote for the back-up alarm to not function.
According to Bandas the area in which the front-end
loader was operating had no pedestrian traffic.
Moreover the truck drivers were forbidden by company
policy to leave their trucks. Bandas had personally
never seen any driver outside of his truck in this area.
In evaluating the above evidence I find that the
violation is proven as charged. I further conclude that
the uncontradicted testimony of Inspector Lemasters
concerning his observation of truck drivers outside of
their cabs in the vicinity of the front-end loader is to
be credited. Bandas testified only that it was contrary
to company policy to do so and that he had never
personally ob$erved any driver outside of his truck in
the area. This evidence does not contradict the direct
observations of Lemasters. Accordingly I find under the
circumstances that injuries of a reasonably serious
nature, including fatalities were reasonably likely.
Under the circumstances I find that the violation was
serious and "significant and substantial". Secretary v.
Mathies Coal Co., 6 FMSHRC 1 (1984). Under the
circumstances and considering the size of the operator,
its history of violations, and the fact that the
violation was abated in accordance with the Secretary's
directive, I find that a civil penalty of $136 is
appropriate.
Citation No. 3276515 alleges a "significant and
substantial" violation of the standard at
30 C.F.R. § 56.14003 and charges that "the guard on the
tail pulley of the by-pass conveyor a·t No. 1 plant did
not extend far enough to cover the pinch points."
The cited standard provides as follows:
Guards at conveyor-drive, conveyor-head, and
conveyor-tail pulleys shall extend a distance
sufficient to prevent a person from accidently
reaching behind the guard and becoming caught
between the belt and the pulley.

1199

According to MSHA Inspector John.Carter the cited guard
on the tail pulley in fact did not cover the pinch points as
noted in the photograph admitted in'evidence. (See Exhibit
PX-16). According to Carter, workmen in the area such as
miners cleaning-up around the cited tail pulley would be
exposed to entanglement in the pinch point suffering loss of,
or broken, limbs. Carter acknowledged however that the pinch
point was not directly accessible because of the belt
structure. At the same time he opined that there was no
obstruction "that couldn't be gotten around".
According to Robert Bandas there was very little foot
traffic in the cited area and in any event it was nearly
impossible because of the belt structure itself for an
employee to get close enough to the cited pinch point to
become untangled. Bandas also noted that at the time of the
violation and since then the belt has not been cleaned while
in motion. In light of the firsthand knowledge and
experience of Bandas, corroborated in signficant respects by
Inspector Carter, I find but limited exposure to this hazard.
Accordingly while I find that the the violation is proven as
charged, I find that exposure to the cited hazard was so
remote as to make it unlikely that an employee would become
entangled in the cited tail pulley. Accordingly I do not
find the violation to be "significant and substantial" or of
high gravity. In the absence of any evidence of negligence I
am unable to evaluate this criterion. Under the
circumstances I find that a civil penalty of $75 appropriate.
Citation No. 3276517 alleges a "significant and
substantial" violation of the standard at 30 C.F.R. § 56.9054
and charges that "there was a build up of material at the
bumper block at No. 3 Plant dump stat;.ion."
The cited standard, 30 C.F.R. § 56.9054, provides that
"berms, bumper blocks, safety hooks, or similar means shall
be provided to prevent overtravel and overturning at dumping
locations." It may reasonably be inferred that the cited
standard requires that the safety devices not only be
provided but must also be maintained "to prevent overtravel
and overturning at dumping locations".
According to MSHA Inspector John Carter there was indeed
a buildup of material at the cited bumper block in an amount
sufficient to enable a truck backing up to the dumping
location to pass over the block and into the dum~ing station.
According to Carter however, at most the driver would only be

1200

"shaken up" if his truck backed over into the dumping stat.ion.
Carter also observed that the plant was not then in
operation.
According to Robert Bandas the blocks were 18 inches
high and there was only 6 inches of material buildup so that
the likelihood of the truck backing over the block was "very
slim". He also noted that sufficient protection still
remained in spite of the buildup to hinder the rear movement
of any truck.
·
Within this framework of evidence I find that a
violation existed as charged. In light of the testimony
however that, at worst, the truck driver would only be
"shaken up" I cannot find that the violation was of high
gravity or "significant and substantial". I am also unable
to find negligence in light of the absence of any evidence on
this issue. Within this framework I find that a civil
penalty of $50 is appropriate.
ORDER
Docket No. CENT 89-30-M: Citation No. 3276766 is
vacated. The remaining citations are affirmed and Bandas
Industries, Inc., is directed to pay civil penalties of
$1,482 for the violations cited therein with 30 days of the
date of this decision.
Docket No. CENT 89-42-M: Citation No 3276776 is
vacated. The remaining citations are aff ifrmed and Bandas
Industries, Inc., is directed to pay civif p'enalties of
.56
for the violations cited therein wi hin 30 days of the d t'e
of this decision.
<
'

a ''
Ill

1

I

Gary Meli k
?.\.dministr tive
(703) 756 6261

1201

Judge

Distribution:
Michael Olvera, Esq.~ Office of the Solicitor, U.S.
Department of Labor, 525 Griffin Street, Suite 501, Dallas,
TX 75203
(Certified Mail)
R. F. Bandas, Vice President, Banda's Industries, Inc., P.O.
Box 3595, Temple, TX 76505 (Certified Mail)
nt

1202

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

June 22, 1989
Sl?CRBT.ARY OF LABOR,
MINE SAFBTY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCRBDTNGS

.

v.

Docket No. VA 89-3-M
A. C. No. 44-02965-05516
Louisa Plant

.

A. H. SMITH STONE COMPANY,
Respondent

Docket No. VA 89-4-M
A. C. No. 44-03995-05511
Culpeper Plant

DECISION
Appearances:

Jack Strausman, Esq., Office of the Solicitor,

u. s. Department of Labor, Arlington, Virginia,
for Petitioner;
Lisa M. Wolff, Representative for A. H. Smith
Stone Company, Branchville, Maryland, for
Respondent.

l3ef ore:

Judge Merlin

~hese cases are petitions for the assessment of civil
penalties filed by the Secretary of Labor against A. H. Smith
Stone Company pursuant to section 110 of the Federal Mine Safety
and Health Act of 1977, 30 U. s. c. § 820. A hearing was held on
June 6, 1989, and the parties waived submission of post-hearing
briefs.

Penalty proceedings before the Commission are entirely de
novo. Sellersburg Stone Company v. Federal Mine Safety and
Health Review Commission, 736 ~.2d 1147, 1152 (7 Cir. 1984).
Tennessee Chemical, Inc., 11 FMSHRC
, at
, (May 30, 1989).
Section llOCi) of the Act, 30 u.s.c. § 820(i), provides that
where a violation is proved the Commission in determining the
amount of penalty shall consider, Cl) the operator's history of
previous violations; (2) the appropriateness of the penalty to
the size of the operator; (3) negligence; (4) the effect of any
penalty upon the operator's ability to continue in businesa;
(5) the gravity of the violation; and (6) the demonstrated good
faith of the operator in attempting to achieve rapid compliance
after notification of a violation.

1203

In accordance with the evidence of ~ecord and the uncontroverted submissions of the Solicitor, I find the operator's
size is moderate.
In the absence of evidence to the contrary, I find that
imposition of penalties herein will not affect the operator's
ability to continue in business. The unsupported and unverified
financial statements submitted by the operator do not establish
that the operator will be forced out of business due to payment
of civil penalties under the Act. At the hearing in Docket
~o. V~ 89-13-M, Administrative Law Judge William Fauver told the
operator's representative what type of evidence was required to
prove this defense.
I adhere to the views expressed by Judge
'Pauver.
I further find the operator's history is as set forth in the
Solicitor's pre-hearing statement, with the exception of the last
two sentences of subparagraph ll(f).
Pursuant to the stipulations I conclude that the violations
were abated in a timely manner.
VA 89-3-M
Citation No. 3045443
This citation sets forth the alleged violative condition or
practice as follows:
"'l'he guard for the drive pulley and V
belts for the #1 jaw crusher had parts of the
guard missing.
This is along a travelway and
would be hazardous to anyone traveling in the
area. This condition was cited on the last
regular inspection 1-27-88."
Section 56.14006 of the regulations, 30 C.F.R. § 56.14006,
provides:
~xcept when testing the machinery,
guards shall be securely in place while
machinery is being operated.

The inspector testified that two portions of the guard were
missing, one on the drive belt for the electric motor of the jaw
crusher and the other for the drive pulley of the crusher itself
C~r. 28, 30, 59).
The operator's former plant manager remembered
as missing only the portion of the guard for the electrical
motor, but admitted that there could very well have been two
missing pieces (Tr. 62).
t accept the inspector's testimony that
two pieces of the guard were missing.
I further adopt the inspector's statement that when he issued the citation the machinery
was running and the plant was in full operating condition

1204

,_

(Tr. 31, 38)~ Based upon the foregoing, I find a violation of
30 C.F.R. § 56.14006.
The inspector stated that a ladder, which was used to go to
and from the control booth of the crusher, was one foot in front
of where the guard for the pulley of the jaw crusher was missing
(Tr. 27, 35, 38). He believed there was a danger that if the
belt broke, an individual on the ladder could be killed before he
could get out of the way (Tr. 35, 38). He had read of fatal
accidents where belts like the ones in this case had weakened and
broken (Tr. 43). There was also a risk that an employee could
loose his footing on the ladder and fall with his foot becoming
caught in the drive pulley {Tr. 40). He saw employees going up
and down the ladder (Tr. 41). The operator's former manager
agreed that any injury would be permanently disabling or fatal
(Tr. 54). Based upon the possibility of serious or fatal
injuries from the missing guard, I £ind the violation was
serious.
The inspector also found that the violation was significant
and substantial. The Commission has held that a violation is
properly designated significant and substantial if, based on the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in
an injury or illness of a reasonably serious nature. 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.
·
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.
The Commission subsequently explained 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).
As set forth above, the evidence shows a violation and
discrete safety hazards. What is lacking however, is proof of a
reasonable likelihood that the hazards will result in injury.
When asked why he believed injury or illness was reasonably
likely, the inspector merely referred to previous accidents and

1205

fatalities· in other operations (Tr. 34-35). He did not indicate
the frequency of those occurrences. Moreover, he did not address
the circumstances which led him to conclude that in this case
there was reasonable likelihood. He spoke only of the possibility of an individual on the ladder becoming caught in a pinch
point or losing his footing on the ladder due to grease or water,
without indicating the condition of the ladder or surrounding
areas at the time (Tr. 39-40). ~he statement of the operator's
former manager that injury was reasonably likely to an individual
on the work platform must be discounted because he made clear
that a person would be on this platform only for pre-shift inspection and maintenance and not during normal operations (Tr. 48,
57-58). Accordingly, the finding of significant and substantial
must be vacated.
As set forth herein, a violation may be serious while not
satisfying the criteria required by Commission precedent for
establishing significant and substantial. Quinland Coals, Inc.,
9 FMSHRC 1614, 1622, n. 11 (September 1987); Youghiogheny and
Ohio Coal Company, 9 FMSHRC 2007, 2013 (December 1987); Columbia
Portland Cement, 10 FMSHRC 1363, 1373; 1375, 1384-1385; 1387,
1397; 1399, 1403; 1405, 1409 (September 1988). As also explained
supra, penalty proceedings are de .!!.£Y.2 before the Conunission
which is bound to determine penalty assessments in accordance
with the six criteria in section llOCi> of the Act. The Commission is not bound by the Secretary's penalty assessment
regulations.
I accept the inspector's testimony that the foreman observed
this violation but took no action to correct it (Tr. 35-36). On
this basis I find the operator was negligent.
1n light of the foregoing, a penalty of $175 is assessed for
this violation.
Order No. 3045449
~his order sets forth the alleged violative condition or
practice as follows:

"The disconnecting device for the electrical
distribution box for the jaw crusher was broken. The
device would not connect or disconnect the electrical
current. This is an order of withdrawal [sic] all
employees shall be withdrawn from in and around the
electrical control house for the #1 jaw crusher until
repairs are made to the electrical disconnect device.
~he repairs must be made by an electrician that understands the hazards of working on electrical devices.
~he repairs must be inspected by an authorized representative of the Secretary of Labor before the plant
can be restarted".

1206

Section 56.12030 of the regulations, 30 C.F.R. § 56.12030
provides:
When a potentially dangerous condition
is found it shall be corrected before
equipment or wiring is energized.
The inspector testified that after he issued the citation
for missing guards discussed supra, he went back to the area to
see how the employees were corning along in correcting that
situation (Tr. 66). He inquired whether power was disconnected
from the electrical motor on the jaw crusher and was told i t had
been (Tr. 67). The foreman and the crusher operator then
accompanied the inspector to the switchhouse where the electrical
control boxes were located,(Tr. 66-67). The inspector stated
that the disconnect handle on the outside of the control box was
not working and just flopped up and down (Tr. 67-68). The
crusher operator then opened the box and pulled the inside switch
down (Tr. 68-69).
According to the inspector, contrary to what
he had been told power had not in fact been disconnected and the
equipment was energized (Tr. 69). Moreover, a plate that was
supposed to be inside the box covering wires was missing (Tr.
69-70). The wires inside the-box were uninsulated, live and
exposed (Tr. 70, 72-73). The wires carried 480 volts which were
sufficient to kill or seriously injure anyone who touched them
(Tr. 72, 90-91). The ·inspector further reported that the wires
were only 2" from the crusher operator's hand when he reached in
to pull the inside switch (Tr. 72). The operator's former
manager did not dispute the inspector's account of what he saw
(Tr. 98, 104). I accept the inspector's testimony on the
foregoing matters.
The condition of the control box including the broken outside handle, missing inside plate and exposed live wires was
potentially very dangerous. The wires which could cause death or
serious injury by electrocution were just a few inches away from
the hand of anyone who would use the inside switch to disconnect
power. The cited mandatory standard requires that this condition
be corrected before equipment or wiring is energized. Based upon
the evidence that power was not disconnected, I find a violation.
Because of the close proximity of the live and uninsulated
wires to an individual disconnecting the inside switch as the
crusher operator did, there was a very real danger of injury or
death from electrocution.
T find the violation was very serious.
The requirements necessary to support a finding of signif icant and substantial have already been explained.
In this instance there was a violation. Second, the danger of electrocution presented a discrete safety hazard. Third, a reasonable
likelihood existed that the hazard would result in an injury
because a person's hand inside the box would be only 2" from live

1207

wires. 1t would not be at all unusual for an individual to place
his hand in that dangerous position since the inside switch would
be used every time power was disconnected (Tr. 80). Tndeed, the
crusher operator told the inspector that for the past six months
it had been his practice to shut off power in this manner
(Tr. 81). Fourth, there was a reasonable likelihood the injury
would be of a reasonably serious nature since electrocution by
the 480 volts would cause serious injury or death. Accordingly,
pursuant to Commission precedent I conclude the violation was
significant and substantial.
The violation existed for six months.
It was the crusher
operator's practice to use the inside switch (~r. 81). He did so
in the presence of not only the inspector but also of his foreman
who was not surprised, did not dispute this was the procedure
followed, and did not attempt to stop him (Tr. 82). These circumstances demonstrate that supervision, training and discipline
were all far from what was required. The negligence of the rank
and file crusher operator is therefore, attributable to the operator. A. H. Smith Stone Company, 5 FMSHRC 13 (January 1983);
Som:.hern Ohio Coal Company, 4 FMSHRC 1459 CA.ugust 1982). The
foreman also was extremely negligent and, as a supervisor, his
negligence is attributable to the operator. Wilmot Mining
Company, 9 FMSHRC 684 (April 1987), affirmed in part, reversed
and remanded in part, per curiam Wilmot Mining Company v. Secretary of Labor, (6 Cir. No. 87-3480) (May 17, 1988). Finally, the
plant manager who was responsible for all operations was not even
aware that employees were disconnecting power with the- inside
switch (~r. 97-98).
In light of the foregoing, T find that at
all levels the operator was highly negligent.
~he operator's assertion that the main power switch was used
to disconnect power is without merit. The crusher operator's
conduct and statements demonstrate that the main was not being
used to disconnect power C~r. 81). In addition, I do not find it
plausible that the main would be used in this manner because it
would be impractical and expensive CTr •. 92-93).

A violation such as this is cause for great concern.
likelihood of grievous bodily harm was very great and the
operator condoned perilously unsafe practices.

The

A penalty of $1,800 is assessed for this violation.
Citation No. 3045442
This citation was issued for a violation of 30 C.F.R.
56.15002 because employees in the plant area were observed not
wearing hard hats. The original assessment was $168 and the
recommended settlement is $150. ~he Solicitor explained that the
violation was significant and substantial as well as serious
§

1208

because employees were working in areas where there was a danger
of falling materials.
According to the Solicitor the operator
was negligent because the violation was obvious. The Solicitor
stated he agreed to the slight reduction because the plant was
not operating at the time the citation was issued (Tr. 12-14).
At the hearing I accepted the Solicitor's representations and
approved the recommended settlement (Tr. 14).
Citation No. 3045444
This citation was issued for a violation of 30 C.F.R.
§ 56.9087 because the back-up alarm on the front-end loader was

inoperative. The original assessment was $147 and the recommended settlement is for the same amount.
The Solicitor
explained that the violation was significant and substantial as
well as serious because customers and truck drivers in the area
wer~ subject to a risk of injury.
According to the Solicitor the
operator was negligent because the foreman himself was operating
the loader (Tr. 14-16). At the hearing I accepted the Solicitor's representations and approved the recommended settlement
(Tr. 16).
Citation No. 3045445
This citation was issued for a violation of 30 C.F.R.
56.15003 because an employee was observed wearing tennis shoes
in areas where a hazard·existed which could cause an injury to
the feet.
The original assessment was $74 and the recommended
settlement is for the same amount. The Solicitor explained that
the violation was significant and substantial as well as serious
because of the risks posed to feet by heavy hand-held tools.
According to the Solicitor the operator was negligent because the
violation was obvious (Tr. 16-17). At the hearing I accepted the
Solicitor's representations and approved the recommended
settlement (Tr. 17).

§

Citation No. 3045447
This citation was issued for a violation of 30 C.F.R.
§ 56.12016 because two employees were observed working on

electrically powered equipment without the power switches being
properly locked out.
~he original assessment was $178 and the
proposed settlement is $168. The Solicitor explained that the
violation was significant and substantial as well as serious
because employees could be injured if the conveyor belt were
started from push button switches without the employees' knowledge.
According to the Solicitor the operator was negligent
since the foreman observed the condition.
~he Solicitor stated
that he agreed to the slight reduction because the feared injury
was not quite as serious as had originally been thought (Tr. 19).
At the hearing I accepted the Solicitor's representations and
approved the recommended settlement (Tr. 19).

1209

Citation No. 3045448
This citation was issued for a violation of 30 c.F.R.
because four compressed gas cylinders were not secured.
At the hearing the operator offered to settle this violation for
the $20 original assessment and the Solicitor accepted. At the
hearing I approved the recommended settlement (Tr. 65).
§ 56.16005

VA 89-4-M
Citation No. 2852770
This citation was issued for a violation of 30 C.F.R.
because employees including the plant superintendent
were observed not wearing proper footwear in areas where a hazard
existed which could cause injury to the feet. The original
assessment was $68 and the settlement is for the same amount.
~he Solicitor explained that the violation was significant and
substantial as well as serious because hazards to the feet
existed in the plant at the time the citation was issued.
~mployees were engaged in various tasks using heavy hand-held
tools. According to the Solicitor the operator was negligent,
especially since the superintendent himself was not wearing the
required shoes (Tr. 6-7). At the hearing I accepted the
Solicitor's representations and approved the recommended
settlement (Tr. 7).
§ 56.15003

Citation No. 2852771
This citation was issued for a violation of 30 C.P.R.
because there were two unsecured gas cylinders in the
area of the primary crusher where four employees were working.
~he original assessment was $157 l/ and the recommended settlement is for the same amount. The-Solicitor explained that the
violation was significant and substantial.as well as serious
because the tasks being performed by . the employees required the
use of compressed gas (Tr. 8-9). According to the Solicitor the
operator was negligent, because the superintendent was in the
area. At the hearing I accepted the Solicitor's representations
and approved the recommended settlement (Tr. 9).
§

5~.16005

Citation No. 2852772
This citation was issued for a violation of 30 C.F.R.
because employees were observed working on the crusher
without the electrically powered switches being properly locked
out and tagged. The original assessment was $178 and the proposed settlement is for the same amount. 'T'he Solicitor explained
§ 56.12016

!/ 'J'he transcript erroneously gives the amount as $175 (Tr. 9).

1210

[

•

the violation was significant and substantial as well as serious
because the crusher could be inadvertently started while work was
being performed. According to the Solicitor the operator was
negligent because the superintendent should have known and probably did know that the employees were working on electrically
powered equipment C~r. 11). At the hearing I accepted the Solicitor's representations and approved the recommended settlement
(Tr. 13).
Order
Citation No. 3045443
It is

ORDFR~D

that the finding of a violation be AFFIRMFD.

Tt is further ORDRRED that the finding of significant and
substantial be VACATFD.
Tt is further

ORD~RED

that a penalty of $175 be ASSESSED.

Order No. 3045449
It is ORDERED that the finding of a violation be AFFIRMED.
It is further ORDERFD that the finding of significant and
substantial be AFFIRMED.
It is further ORDERED that a penalty of $1,800 be ASSESSED.
Citation Nos. 3045442, 3045444, 3045445, 3045447, 3045448
2852770, 2852771 and 2852772
It is ORDPRFD that the recommended settlements for these
citations be ~PPROVED.

1211

ORDER '1'0 PAY
It is ORDBRF.D that the operator pay the following amounts
within 30 days from the date of this decision.
Citation or Order No.

Amount

3045443
3045449
3045442
3045444
3045445
3045447
3045448
2852770
2852771
2852772

$175
$1,800
$150
$147
$74
$168
$20
$68
$157
$178
$2,937

Total

- \~

Paul .Merlin
Chief Administrative Law Judge

Distribution:
Jack Strausman, Bsq., Office of the Solicitor, u. s. Department
of Labor, 4015 Wilson Boulevard, Room 516, ~rlington, VA 22203
(Certified Mail)
Ms. Lisa M. Wolff, Director of Safety/Government Affairs, A. H.
Smith Associates, 9101 Railroad Avenue, Branchville, MD 20740
(Certified Mail)
/gl

1212

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

JUN 231989
BEAVER CREEK COAL COMPANY,
Contestant

:

CONTEST PROCEEDINGS

:

Docket No. WEST 88-84-R
Citation No. 3044384; 12/17/87

.

v.

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

.
.

Docket No. WEST 88-104-R
Order No. 3044357; 1/6/88
Docket No. WEST 88-106-R
Citation No. 3227085; 1/6/88
Trail Mountain Mine No. 9
Mine ID 42-01211

DECISION
Appearances:

David M. Arnolds, Esq., Beaver Creek Coal Company,
Denver, Colorado,
for Contestant;
Robert J. Murphy, Esq., John J. Matthew, Esq.,
Off ice of the Solicitor, U.S. Department of Labcir,
Denver, Colorado,
for Respondent.

Before:

Judge Cetti

Contestant, Beaver Creek Coal Company, filed Notices of
Contest on Citation Nos. 3044384, 3044357 and 3227085 in a timely
manner to initiate contest proceedings which are respectively
Docket Nos. WEST 88-84-R, WEST 88-104-R and WEST 88-106-R.
Beaver Creek, however, failed to file the "Blue Cards" with
respect to those citations which were attached to Proposed
Assessments. Upon realizing Beaver Creek's failure to file the
appropriate Blue Cards, the attorney for Beaver Creek filed a
Motion to Vacate the Orders to Pay on the basis of excusable
neglect.
The Federal Mine Safety and Health Review Commission has
ruled in a similar case Rivco Dredging Corporation v. MSHA, 10
FMSHRC 624. (May 26, 1988), that the operator should be granted
relief in that situation "because innocent procedural missteps
alone should not operate to deny a party the opportunity to
present its objection to citations." In that case, the operator
had timely filed a notice of contest relating to the citation but
failed to contest the civil penalty proposal and the Administrative Law Judge had issued an order of dismissal. In ruling

1213

for the operator, the Commission cited Kelley Trucking Co.,
FMSHRC 1867, [MSHC 1223] (December 19, 1986) and M.M. Sundt
Construction Co., 8 FMSHRC 1269. (4 11171 (September 1986) with
approval. In Kelley, the Commission stated as follows:
"As to the substantive aspects of Kelley Trucking's
request, 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." 4 MSHC 1225.
The Commission also quoted in pertinent part the standard
set forth in Federal Rule of Civil Procedure 60Cb)(l) as follows:
"On motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final
judgment, order, or proceeding for the following reasons:
• . • mistake, inadvertence, surprise or excusable neglect1
• • • or • • • any other reason justifying relief from the
operation of the judgment." (4 MSHC 1225).
The Secretary in her initial response to the motion to
vacate order to pay attempted to distinguish Rivco in that there
the operator was acting pro se and was unaware that it should
file an objection to the proposed penalty. The Secretary argued
that Beaver Creek can not claim it misunderstood the requirement
because Beaver Creek is a large operator which appears regularly
before the Commission. The Secretary further argues that the
attorneys for Beaver Creek are experienced, appear regularly
before the Commission, and are fully aware of the requirements to
file the blue cards.
Beaver Creek contends, however, that the Secretary's
argument fails because it is both factually inaccurate and
legally wrong. Although Beaver Creek is represented in these
contests by an attorney, he is new to the coal industry and has
never handled MSHA matters before. Beaver Creek's attorney did
not know that, after he initiated a contest proceeding on the
citations, he would be denied a hearing and remedy if the mine
personnel failed to file the blue cards that were sent to them.
MSHA did not send the Notice of proposed assessment to the
attorney and, therefore, he was unable to respond to it.
Beaver Creek asserts that the safety supervisor at the mine
in Price, Utah who received the proposed assessment with the
blue cards and was responsible for handling them was unaware of
the procedural requirement of filing blue cards for already
init.ated contests. The safety supervisor has been in his
position at Beaver Creek since the middle of 1985 and during his
tenure, Beaver Creek had contested no citations. In 1986 Beaver
Creek received four citations, in 1987 it received 13 citations,

1214

all of which Beaver Creek considered to be valid. As of March
29, 1988, the date of the proposed assessment for the citations
at issue, Beaver Creek had received 95 citations or orders for
the year 1988.
Beaver Creek also contends that the Secretary's argument is
also legally wrong because it ignores the fact that F.R.C.P.
60{b){l) applies to a party "or his legal representative."
Therefore, the fact that Beaver Creek is represented by an
attorney is irrelevant to the issue of whether the ruling in
Rivco whould be followed.
The reasoning of the Commission in Rivco, Kelley and Sundt
plus that of F.R.C.P. 60{b){l) all are focused on the situation
in which Beaver Creek finds itself. Beaver Creek clearly
intended to seek review of the subject citations and initiated
contest proceedings to do so. However, due to the number of
citations being received, the lack of experience of Beaver
Creek's people in contesting citations, and the geographical
distance between the mine in Price, Utah and the attorney's
office in Denver, Colorado, Beaver Creek admittedly "failed to
jump through the procedural hoop" of filing the Blue Cards.
A grant of Beaver Creek's motion does not prejudice MSHA
because contest proceedings were already pending with respect to
these citations.
MSHA's practice of sending the proposed assessment for a
contested citation, which is in effect a pleading, to the mine
personnel instead of the attorney, can result in the blue card
not being filed through no fault of the attorney. Only careful
coordination between the mine personnel and the attorney could
ensure that a proposed assessment does not inadvertently slip by
on a pending contest case.
The cases were set for hearing on the merits at the same
place and time as other cases involving the same parties and
their attorneys were heard on the merits. At the hearing,
counsel for the Secretary on the record stated the parties had
reached an agreement and the parties jointly moved for approval
of the proposed settlement dispositions which provides for
granting Beaver Creek's motion to vacate the automatic final
order to pay that resulted from the inadvertent failure to file
the blue card with respect to the contested citations. The
agreement also provides as follows:
Docket No. WEST 88-84-R
Citation No. 3044384
This citation alleges a violation of 30 C.F.R. § 75.301.
The Secretary agreed and moved to redesignate this Citation from

1215

Section 104(d}(l} to Section 104Ca} - S & S. Beaver Creek Coal
Company agreed and moved to withdraw its contest to the newly
redesignated Section 104(a) - S & S citation and pay the
Secretary's new proposed penalty of $100.00.
Citation No. 3044357
This citation alleges a violation of 30 C.F.R. § 75.316.
The Secretary agreed and moved to redesignate this Citation from
Section 104(d}(l} to Section 104(a) - S & S. Beaver Creek Coal
Company agreed and moved to withdraw its contest to the newly
redesignated Section 104(a) - S & S citation and pay the Secretary's new proposed penalty of $100.00.
Docket No. WEST 88-106-R
Citation No. 3227085
This citation alleges a violation of 30 C.F.R. § 75.400.
The citation and Docket No. 106-R were stipulated to be tried
during the above referenced hearing. Beaver Creek Coal Company
agreed and moved to withdraw its contest and pay a proposed
penalty of $50.00.
Further Discussion
There was no objection to the motions of the parties. The
motions are granted.
In support of this proposed disposition of
the cases the parties submitted information pertaining to the six
statutory civil penalty criteria found in Section llO(i) of the
Act. After review and consideration of the pleadings, arguments,
and submissions I find that the proposed disposition is reasonable, appropriate, and in the public interest.
ORDER
The joint motion for approval of ·the agreed settlement
dispositions is granted. The contestant is directed to pay a
civil penalty in the sum of $250.00 within 30 days of the date of
this decision.

a"'-Jr'"'~

~

-

. \!

//
.
(;,_ft-;

Aug'1st F. Cett1
Administrative Law Judge

1216

Distribution:
David M. Arnolds, Esq., 555 Seventeenth Street, Denver, CO
(Certified Mail)

80202

Robert J. Murphy, Esq., John Matthew, Esq., Office of the
Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961
Stout Street, Denver, CO 80294 (Certified Mail)

/bls

1217

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

JUN 261989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
CONSOL PENNSYLVANIA COAL
COMPANY,
Respondent

.
.
.
..
.:
.

CIVIL PENALTY PROCEEDING
Docket No. PENN 88-200
A.C. No. 36-07230-03541
Bailey Mine

.

DECISION
Appearances:

Before:

Anita D. Eve, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania,
for the Secretary of Labor (Secretary);
Michael R. Peelish, Esq., Pittsburgh, Pennsylvania,
for Consol Pennsylvania Coal Co. (Consol).

Judge Broderick

STATEMENT OF THE CASE
The Secretary seeks a civil penalty for an alleged violation
of 30 C.F.R. § 75.1101-8(a) which requires that at least one
water sprinkler be installed above each belt drive, belt take-up,
electrical control, and gear reducing unit. The Secretary cited
Consol because it did not have sprinklers installed above nine
combination belt starter-transformer units. Consol takes the
position that such units are not electrical control units, but
rather are power centers and not covered by the regulation.
Pursuant to notice, the case was heard in Washington,
Pennsylvania on March 28, 1989. Robert G. Santee testified on
behalf of the Secretary. John F. Burr and Carl H. Trickett
testified on behalf of Consol. Consol filed a posthearing brief;
the Secretary did not. I have considered the entire record and
the contentions of the parties in making the following decision~
FINDINGS OF FACT
Consol is the owner and operator of an underground coal mine
in Greene County, Pennsylvania. Consol is a large mine operator,
producing over 10 million tons of coal annually. The subject
mine produces over 2 million tons annually. The subject mine has
a history of 106 paid violations in the 24 months prior to the

1218

violation involved herein. None of these prior violations
involved 30 C.F.R. § 75.1101. This history is not. such that
penalties otherwise appropriate should be increased because of
it.
In the belt entry in the subject mine, there are belt
drives, drive motors, belt takeups, gear-reducing units, spill
switches, contractor. controls, on-off switches and fire detection
systems. These five latter named units are forms of electrical
controls. The adjacent entry contains a combination unit
sometimes called a combination belt starter-transformer, and
sometimes called a combination power center. This unit supplies
power to the belt entry~ it also contains a belt starter. The
entry in which this unit is located is separated from the belt
entry by a permanent stopping.
In October 1982, Consol filed a Petition for Modification
under section lOl(c) of the Act requesting that the application
of 30 C.F.R. § 75.1101-8 be modified to permit the use of a
single line of automatic sprinklers at all main and secondary
belt-conveyor drives in the subject mine. Drawings accompained
the Petition showing the location and configuration of the
sprinkler system along the belt line, particularly at the belt
drive and the car spotter areas. Neither the Petition nor the
drawings referred to or depicted the combination
belt-starter/transformer units which were not in the belt entry.
MSHA investigated the Petitioner in November 1984, and a Report
of Investigation was made January 9, 1985. In June 1985, a
Proposed Decision and Order was issued by MSHA granting the
modification. Neither the Investigation Report nor the Decision
and Order ref erred to the combination belt-starter/transformer
units.
On March 31, 1987, Federal mine Inspector Robert Santee
issued a citation alleging a violation of 30 C.F.R. §
75.1101-8(a) because combination belt electrical control starter
transformers in nine locations in the subject mine were not
provided with at least one water sprinkler. All of these units
were in entries adjacent to the belt entries. All were housed in
fireproof structures, vented to the return aircourse.
Prior to the issuance of the citation referrred to above,
Consol on February 5, 1987, filed a Petition for Modification of
30 C.F.R. § 75.1101-8(a) to permit it to install a thermostat
device inside the belt starter box which would deenergize the
equipment at a certain temperature. This would be in lieu of an
overhead sprinkler. The citation was continued during the period
the Petition was investigated, and was terminated when the
Petition was granted, on or about March 17, 1988.

1219

REGULA.TI ON
30 C.F.R. 75.1101-S(a} provides:
Ca} At least one sprinkler shall be installed above
each belt drive, belt take-up, electrical control, and
gear reducing unit, and individual sprinklers shall be
installed at intervals of no more than 8 feet along all
conveyor branch lines.
ISSUES
1. Whether the combination belt-starter-transformer units
in the subject mine are electrical controls and covered by the
standard set out above?
2. If the units are covered, what is the appropriate
penalty for the violation?
CONCLUSIONS OF LAW
Respondent is subject to the provisions of the Mine Safety
Act in the operation of the subject mine.
I have jurisdiction
over the parties and subject matter of this proceeding.
The facts in this case are not in dispute. The legal issue
is a very narrow one: whether the combination belt starter
transformer units are covered by 30 C.F.R. § 75.1101-S(a} as
electrical control units. These units are not in the belt entry;
the entry in which they are placed is separated from the belt
entry by a permanent stopping. The units have two functions:
they supply high voltage power to the belt entry, and low voltage
power to the belt drive.
30 C.F.R. § 75.1105 requires
underground transformer stations to be housed in fireproof
structures, and air currents used to ventilate the structures
must be coursed directly into the return.
Belt starter boxes and
transformers need not be enclosed in the same structure. Where
they are separate, normally the belt starter box is in the belt
entry and under the required sprinkler system. The newer units
are in combination and enclosed in a fireproof structure outside
of the belt entry.
The regulations contained in 30 C.F.R. § 1101-1 and
following were designed to prevent and contain fires primarily in
underground belt entries where the danger of fire is particularly
great:
the rollers and bearings can get hot; the belt itself can
burn; oil and grease are present; coal is transported on the
belt; the belt can slip. For these reasons a sprinkler system is
required. None of these reasons would support having a sprinkler
over a belt starter unit which is enclosed in a fireproof

1220

structure along with a high voltage transformer, and is located
outside the belt entry. Furthermore, permitting water to contact
a high voltage power unit could cause a ground fault which is an
extremely dangerous condition in an underground coal mine. For
these reasons, I conclude that the standard contained in 30
C.F.R. § 75.1101-8(a) was not intended to apply to the
combination belt starter-transformer units involved in this case.
Therefore, I conclude that the violation charged in the citation
did not occur, and the citation must be vacated.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
Citation 2684504 issued March 31, 1987, is VACATED, and no
penalty may be assessed.
'

l !~~~:: 11:::~:~~:-rd(

·

'

Administrative Law Judge

Distribution:
Anita D. Eve, Esq., U.S.• Department of Labor, Office of the
Solicitor, 3535 Market Street, Phlladelphia, PA 19104 (Certified
Mail)
Michael R. Peelish, Esq., Consol Pennsylvania Coal Co., 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
slk

1221

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

June· 27, 1989
OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner

CIVIL PENALTY

SFCRF.T~RY

v.

Docket No. SE 89-51-M
A. C. No. 40-02968-05502

.

MOL't'AN COMPANY,

PROC~EDING

Moltan Company

Respondent
DISAPPROVAL OF SETTLEMENT
PARTIAL APPROVAL OF SETTLEMENT
Before:

Judge Merlin

This case involves two violations.
Citation No. 3253027 was
originally assessed at $20 and T approve the settlement for this
item.
Eowever, T am unable to approve the recommended settlement
for Citation No. 03252473 which was originally assessed at $98
and for which $20 now is the recommended settlement. 'rhe
Solicitor advises as follows regarding this item:

"* * * the No. 1 cooler control electrical cabinet's three circuit breakers and six
starter relays could only be operated and/or
reset by opening the cabinet door and reaching inside the cabinet. Rmployees thus
exposed themselves to the bare 480 volt
terminals and conductor ends inside the
cabinet."
I recently considered a comparable situation in A. H. Smith
Stone Company, 11 FMSHRC
dated June 22, 1989
(copy
enclosed), wherein it was shown that 480 volts would cause
serious injury or death.
~ penalty of $1,800 was assessed in
that case. The Solicitor has provided no basis for her
representation that in this instance occurrence of an accident
would be unlikely.
'rhe parties should be aware that I have repeatedly held that
significant and substantial is not synonymous with gravity for
purposes of determining an appropriate penalty assessment.
~. H. Smith Stone Company, supra.

1222

Tn light of the foregoing, it is ORDBRFD that the $20 settlefor Citation No. 3253027 be APPROV'PD and that the operator
pay $20 within 30 days from the date of this order.

m~nt

It is further ORDBRFD that within 30 days from the date of
this order the Solicitor submit information sufficient to support
her settlement recommendation for Citation No. 3252473.

Paul Merlin
Chief Administrative Law Judge
l"nclosure:
Oistribution:
G. Blaine Smith, ~sq., Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones ~oad, Suite B-201, Nashville, TN
37215 (Certified Mail>
Mr. Rdward J. Lucas, Moltan Company, Post Office Box 9,
Middleton, KY 38052
(Certified Mail)
/gl

1223

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

22041

JUN 2 91989
JAMES L. WOODY,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. VA 89-14-D

CLINCHFIELD COAL COMPANY,
Respondent

Moss No. 3 Prep Plant
DECISION

Appearances:

Before:

Jerry O. Talton, Esq., Front Royal, Virginia, for
Complainant; w. Challen Walling, Esq., Penn,
Stuart, Eskridge & Jones, Bristol, Virginia,
for Respondent.

Judge Broderick

STATEMENT OF THE CASE
Complainant contends that he was discriminated against in
violation of section lOSCc) of the Federal Mine Safety and Health
Act of 1977 (the Act), 30 u.s.c. § 815(c), in that he was
required to work beyond his regular shift on August 4, 1988.
Respondent denied that Complainant suffered any adverse action
and asserted that if he did, it was not because of activity
protected under the Act. Pretrial discovery was had, and both
parties responded to my prehearing order. Pursuant to notice the
case was heard on the merits in Abingdon, Virginia, on April 25,
1989. Billy L. Bise, James L. Woody, Jerry D. Hearl, and
James w. Hicks testified on behalf of Complainant; Thomas Asbury,
Danny Lee Cromer, Samuel Glen Sanders, and John Bel, Jr.,
testified on behalf of Respondent.
Both parties have filed post
hearing briefs. I have considered the entire record and the
contentions of the parties, and make the following decision.
FINDINGS OF FACT
I

At all times pertinent hereto, Respondent was the owner and
operator of a coal mine in the State of Virginia known as the
Moss No. 3 Preparation Plant. Complainant was employed by
Respondent at the Preparation Plant as a boom shack operator and
was a miner as defined in the Act. Complainant worked at the
mine for approximately 28 years. The preparation plant is one of

1224

the largest such facilities in the country. It employs
approximately 150 people, and processes and ships out
approximately three-and-a-half million tons of coal in a three
year period.
II
In the latter part of 1987, Complainant Woody and others
complained on several occasions about excessive dust in their
working area. When the amount of coal·coming from the mine to
the preparation plant is reduced, the dryer (part of the prep
plant) will, unless its heat is reduced, over-dry the coal. The
result is excessive dust in the area. During such periods, the
dust severely limited Woody's vision from the boom shack. It
also resulted in respirable dust entering the boom shack where
Woody worked. On December 15, 1987, Woody and two other miners
filed a grievance alleging that Clinchf ield had not controlled
the dust problem at the loading out area. Woody complained that
on December 14, 1987, the dust was so bad he could not see to
load the railroad cars. A meeting was held concerning the
grievance on January 19, 1988. Four company representatives, two
union representatives and the three grievants attended.
Respondent presented a written dust control plan which was
accepted by the union as a settlement of the grievance. Woody
testified that the condition was "a lot better" after the meeting
(Tr. 127). However, he also testified that "some days it (the
dust control plan) works, some days it doesn't." (Tr. 122) No
further grievances were filed and no section 103(g) complaints
were filed with the Mine Safety and Health Administration
alleging a dust violation.
III
Beginning in late 1987, miners in the subject plant worked a
mandatory six day week. Coal was processed five days a week and
the sixth day (Saturday) was devoted to maintenance. Prior to
that time, work on Saturday and Sunday was voluntary. The
workers were paid time-and-a-half for Saturday work and double
time for Sunday work. A sufficient number of workers volunteered
for overtime or Sunday work to enable Respondent to maintain its
five day coal production schedule. At some time in 1987 or 1988,
the number of employees volunteering for Sunday work declined;
this resulted in Respondent establishing what was called a
mandatory overtime policy. This policy referred only to work
beyond the normal work day of 7-1/2 or 8 hours. Saturday work
was being performed as a matter of course. A notice was posted
notifying the employees that all employees were subject to
mandatory overtime effective August 1, 1987.
(RX3) The policy
was not implemented until the summer of 1988, when the number of
volunteers for overtime and Sunday work sharply fell off.

1225

IV
Complainant Woody is 60 years of age. He has worked for
Respondent almost 29 years. He is a member of the United Mine
Workers of America. He has been an officer in the union and was
mine committeeman until 1984. He worked the majority of
Saturdays and 13 Sundays in 1987. In 1988, he worked 20
Saturdays and two· Sundays; however, he only worked one additional
overtime hour (beyond his normal workday) in 1987 and 4-1/2 such
hours in 1988.

v
The Union objected to the mandatory overtime policy
established in 1987, and prepared a protest form. CCXl) Woody
and most of the union employees signed the forms and submitted
them to management. Among other things the form advised
management "that because of the unsafe conditions which the
extended day will create, I contend that this policy of
involuntary overtime interferes with my safety rights under the
Federal Mine Safety and Health Act. If my health and safety are
jeopardized by this policy, I may file a 105(c) discrimination
complaint • • • under the authority of Eldrige v. Sunfire Coal
Company, 5 FMSHRC 4 8 O (19 83) • "
VI
Beginning in July 1988, the mandatory overtime policy was
implemented at the preparation plant. This was done because of
large orders for coal, higher than normal absenteeism, the
failure of employees to volunteer for overtime and other factors.
Woody was scheduled to work four hours C4 p .m. to 8 p .m.) on
Thursday, August 4, 1988 CRX7). When the schedule was posted,
Woody protested to his immediate supervisor and to the acting
plant superintendent. He also protested to the union safety
committeeman, telling him that he had doctors' statements
excusing him from working overtime. The Safety Committeeman
asked Sam Sanders, the Plant Superintendent on August 3 for a
meeting on the matter. Sanders said he would review the doctors'
statements and tell Woody the next morning of his decision. The
letters (Comp. Ex. 13 and 14) were addressed to Sanders.
Dr. James Cross concluded that if possible Woody should not work
more than 8 hours per day and that 11 12 hour days • • • I feel
would cause excessive fatigue, aggravation of his hiatal hernia,
increased anxiety, and deterioration of his health." Dr. W.A.
Davis stated that in his opinion Woody "is able to work eight
hours a day for six days a week but • • . is not able to work 12
hours a day, due to his physical condition and his age." Sanders
was not satisfied with the reports, and he called Dr. Davis.

1226

Davis told him that Woody had requested that he write the letter
because Woody did not feel like working over eight hours and
"felt exhausted if he worked over eight hours."
(Tr. 281) Based
on the letters and this conversation, Sanders concluded that
there was no bona fide medical reason for Woody not working
overtime. He so notified woody during the morning shift. At the
conclusion of the shift, Sanders met with Woody and the mine
committee, and the evening shift foreman. Sanders repeated his
decision, and Woody reacted angrily. When Woody threatened to go
home and not work the overtime, Sanders told him that before he
returned to work, he would have to bring a doctor's slip stating
that he was "100 percent able to perform [his] • • • work."
(Tr.
290). Woody took this to mean that he had to work overtime or be
discharged. For this reason, he went to the job and worked the
remaining 3 or 3-1/2 hours (the meeting took 30 to 45 minutes,
and Woody was permitted to leave 30 minutes early because he did
not take a lunch hour). He was paid four hours at the overtime
rate. His work involved cleaning and washing the tipple floor
with a water hose. The hose was approximately 1-1/4 or 1-1/2
inches in diameter. The floor was wet and slippery. He returned
to his regular work in the boom shack the following day, and was
not requested to work beyond his 8 hour day thereafter.
VII
As a boom shack operator, woody worked in an enclosed area,
operating levers to fill railroad cars with coal coming from the
dryers. The work does not involve heavy lifting or other
strenuous activity. When he worked on Saturdays or other
overtime hours, he had various duties, including washing and
cleaning the tipple floor, cleaning track, working on pumps or
other machinery. Some of the work is strenuous. There are
normal mining hazards in connection with some of it. Woody has a
hiatal hernia, and had surgery for the removal of polyps in July
1988. He also complained of the symptoms of an ulcer. He
testified that after he worked his regular shift on Saturdays, he
was exhausted and had to rest all day Sunday.
ISSUES
1. Did complainant Woody suffer adverse action by being
required to work 4 hours overtime on August 4, 1988?

2. If he did, was the adverse action the result of activity
protected under the Mine Act?
3.

If it was, what are the appropriate remedies?

1227

CONCLUSIONS OF LAW
I

Complainant and Respondent are subject to and protected by
the provisions of the Mine Act, complainant as a miner and
Respondent as a mine operator. I have jurisdiction over the
parties and subject matter of this proceeding.
Under the Act, a miner establishes a prima facie case of
discrimination if he proves that Cl> he was engaged in protected
activity, and (2) was subjected to adverse action, which (3) was
motivated in any part by the protected activity.
Secretary/Fasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980),
rev'd on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary/Robinette v.
United Castle Coal Co., 3 FMSHRC 803 (1981). The mine operator
may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was not
motivated in any part by the protected activity. If the operator
cannot rebut the orima facie case in this manner, it may defend
affirmatively by proving that it was also motivated by the
miner's unprotected activity, and would have taken the adverse
action for that activity in any event.
II
Complainant Woody was not discharged, did not lose any pay,
was not reprimanded or otherwise disciplined. So £ar as the
record shows, his personnel file does not contain any reference
to the incident involved here. He was required to work 4 hours
overtime to which he objected ostensibly for health reasons. But
he did work and was paid for the work. So far as the record
shows, he did not suffer any ill effects and no safety problems
were encountered. He returned to his regular work the following
day and worked continually until the mine went on strike April 5,
1989.
For many personal reasons Woody disliked working overtime.
The Union objected on behalf of all its members to the mandatory
overtime policy of the operator. But neither Woody's distaste
nor the Union's objection establishes an adverse action. Had
Woody refused to work the 4 hours overtime and been disciplined,
he would have suffered adverse action and, if he could show that
it was related to protected activity, could make out a prima
facie case of discrimination.
But the facts are that he did not
refuse, and was not disciplined. I conclude that Complainant
James Woody has failed to show that adverse action was visited on
him when he was required to work overtime on August 4, 1988.

1228

III
Assuming that requiring Woody to work 4 hours overtime
constituted adverse action, the next question is whether it
resulted in any part from activity protected under the Mine Act.
Complaints of excessive dust detailed in Findings of Fact II
above clearly constitute protected activity. Refusal to work is
protected if it results from a good faith reasonable belief that
the work is unsafe or unhealthful. Pasula, supra. Refusal to
perform overtime work because of a reasonable good faith belief
that a miner's physical and mental exhaustion would present a
safety hazard to himself and others is protected. Eldridge v.
Sunfire Coal Company, 5 FMSHRC 408 (1983) CALJ). Cf.
Secretary/Bryant v. Clinchfield Coal Company, 4 FMSHRC 1379
( 19 8 2 ) ( ALJ ) •
IV

There is no credible evidence that Respondent's requiring
Woody to work overtime on August 4, 1988, was in any way related
to his complaints of excessive dust in 1987 and thereafter. I
conclude that it was not.

v
Complainant objected to the overtime work because he
believed that his age, poor health and physical exhaustion, would
result in safety hazards to himself or his co-workers. Although
the objection to mandatory overtime was sponsored by the union,
and Respondent tried to create the inference that woody was a
front or stalking horse for the union, I conclude that
Complainant Woody's objections to the overtime were made in the
good faith belief that his health would be endangered. The work
Woody was asked to perform on August 4, 1988 after his shift was
not more onerous or hazardous than the work he normally performed
on Saturdays.. There was nothing about the nature of the work
that created special hazards, nor is the discrete (4 hours)
period of overtime so onerous as to create health or safety
problems per se. I conclude that in the terms of the Mine Act,
complainant's objection to overtime work though made in good
faith was not reasonably related to a health or safety hazard.
VI

For all the above reasons, I conclude that Complainant has
failed to establish that he was subjected to adverse action
because of activity protected under the Mine Act.

1229

ORDER
Based on the above findings of fact and conclusions of law
IT IS ORDERED that the complaint of discrimination filed herein
is DISMISSED.

*·VIAP~"':, .4Jd11cfe_1,;tfl

()

~ames

A. Broderick
Administrative Law Judge

Distribution:
Jerry O. Talton, Esq., 222 East Main Street, Front Royal, VA
22630 (Certified Mail)
Mr. James L. Woody, P.O. Box 284, Castlewood, VA 24224 (Certified
Mail)
W. Challen Walling, Esq., Penn, Stuart, Eskridge & Jones, P.O.
Box 2009, Bristol, VA 24203 (Certified Mail)

Mr. Sam Sanders, Superintendent, Clinchfield Coal Company, Prep
Plant, P.O. Box 4000, Lebanon, VA 24266 (Certified Mail)
slk

-ttU .s. Government Printing Office: 1989-241-155/04757

12 3 Q