DECEMBER 1985
Commission Decisions
12-04-85
12-12-85
12-18-85

Tammsco, Inc . , & Harold Scbmarje
Youghiogheny & Ohio Coal Co .
Sec./Robt. Ribel v. Eastern Assoc. Coal Corp.

LAKE 81- 190- M
LAKE 85-90
WEVA 84- 33-D

Pg . 2006
Pg. 2013
Pg . 2015

CENT 85-111-D

Pg . 2032

PENN 85-83-R
VA
85- 21
WEST 83-104-M
WEST 84-114- RM
KENT 86- 19-D
WEVA 85-18-D
KENT 84- 1
CENT 85- 4
SE
85-39-M
WEVA 84-193-D
YORK 85-8-M
WEST 84-155-M
LAKE 85-90
SE
85-48
WEVA 84- 210-R
CENT 85-108-M
KENT 84-217
KENT 85- 18-R
LAKE 85-95
SE
84-79
KENT 84-120-D
WEST 85-1-M
WEST 84- 3
WEST 85- 31-DM
WEVA 84-229- R

Pg . 2034
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CENT 85- 71-RM

Pg. 2283

Administrative Law Judge Decisions
12-02-85
12-03-85
12-04-85
12-04-85
12-04-85
12-05-85
12-06-85
12- 09-85
12- 12-85
12-12-85
12- 12-85
12-17-85
12-18-85
12- 19-85
12-19-85
12-19-85
12-20- 85
12-20-85
12-20-85
12-20-85
12-20- 85
12-23-85
12- 26-85
12- 27-85
12- 27- 85
12-27-85

UMWA/Eugene Ronchetto, etc. v. Associated
Electric Cooperative , Inc.
Barnes & Tucker Company
White Oak Coal Company
Allied Chemical Corporation
Allied Chemical Corporation
Lee Roy Fields v. Chaney Creek Coal Corp.
Sec./Paul Swiger v . Consolidation Coal Co.
Pyro Mining Company
The Pittsburg & Midway Coal Mining Co .
Amax Chemical Corporation
Sec/Frederick Pantuso v. Cedar Coal Co.
St. Joe Resources Company
Utelite Corporation
Youghiogheny & Ohio Coal Company
Jim Walter Resources, Inc.
Southern Ohio Coal Company
Sohio Electro Minerals Company
Circle J. Coal Company, Inc.
Hest Virginia Rebel Coal Company , Inc.
Denzil Proctor
Jim Walter Resources, Inc.
Roger Hutchinson v. Ida Carbon Corporation
Yellow Gold of Cripple Creek, Inc.
Dorchester Coal Company
Sec . /George Swank v. Silver State Mining Co.
Old Ben Coal Company

Administrative Law Judge Order
11-25-85

Southwestern Portland Cement Company

DECEMBER
Review was granted in the following cases during the month of December :
Secretary of Labor, MSHA v . ASARCO, Inc., Docket No. WEST 84-48-M.
Carlson, October 28, 1985.)

(Judge

Secretary of Labor, MSHA v. Youghiogheny & Ohio Coal Company, Docket No.
LAKE 85-90. (Judge Melick, October 29, 1985.)
Secretary of Labor, MSHA v . Habet Mining and Construction Company, Docket
Nos. WEVA 84- 113-R, etc . . (Judge Broderick, November 6, 1985.)
Jimmy R. Mullins v . Beth-Elkhorn Coal Corporation, and UMWA, Docket No.
KENT 83-268-D. (Judge Steffey, November 13, 1985.)
There were no cases filed where review was denied .

CO}~ISSION

DECISIONS

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

December 4, 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. LAKE 81- 190-M
LAKE 82- 65-M

v.

TAMMSCO, INC. & HAROLD SCH¥~RJE

BEFORE:

Backley, Acting Chairman; Lastowka and Nelson, Commissioners
DECISION

BY THE COMMISSION:
In this consolidated civil penalty proceeding arising under sections
llO(a) and llO(c) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1982), we are asked to decide whether Tammsco,
Inc. violated a mandatory health standard, 30 C.F.R. § 57.5-5 (1984),
and whether Harold Schmarje, manager of the Tammsco Company Mill , knowingly
authorized the violation. !/ The Secretary of Labor challenges the
1/
30 C. F.R. § 57.5- 5 (1984) was a mandatory health standard for metal
and nonmetal underground mines and surface operations of such mines .
The standard limited the exposure of miners to airborne contaminants . The
standard stated in part:
§ 57 . 5- 5 t·1 andatory.
Control of employee exposure to
harmful contaminants shall be, insofar as feasible, by
prevention of contamination, removal by exhaust ventilation, or by dilution ,.;ith uncontaminated air . However ,
where accepted engineering control measures have not been
developed or when necessary by the nature of work involved
(for example, while establishing controls or occasional
entry into hazardous atmospheres to perform maintenance
or investigation), employees may work for reasonable
periods of time in concentrations of airborne contaminants
exceeding permissible levels if they are protected by
appropriate respiratory protective equipment.

30 C.F.R. § ·57 . 5-5 was an exception to 30 C. F.R .
57.5-1 stated in part:

§

57 . 5- 1 (1984).

§

§ 57.5-1 Mandatory . Except as permitted by § 57 . 5- 5:
(a) .. . [T]he exposure to airborne contaminants shall not
(footnote 1 continued)

2006

30 C. F.R .

decision of a Commission administrative law judge concluding that the
Secr etary had not proved the violation and dismissing the proceedings
against both Tammsco, Inc. and plant manager Schmarje. 5 FMSHRC 1063
(June l9B3) (ALJ). For the reasons that follow, we affirm the judge ' s
decision.
Tammsco, Inc . is an Illinois corporation engaged in the processing
and sale of various grades of silica products used primarily in the
manufacture of paints. The Company mill facility is a building of about
100 , 000 sq . ft . In the mill , silica- bearing ore extracted from nearby
underground mines is crushed, dried and heated , then fine ground by a
series of pebble mills . The finely ground material is air- swept into
classifiers where it is separated into various product grades. The
coarsest product is called "ruff-buff". Fr om the crusher section, the
various grades of crushed silica are conveyed to storage bins. Fr om
there , the silica is conveyed to another section of the building and is
placed i n cone- shaped hoppers. The hoppers are l ocated above and attached
to three bagging machines which package the silica in 50- pound bags .
The bagging machines are designed to be equipped with a hood or shroud
device connected to a central dust collection system. The shroud acts
as a vacuum to collect fugitive dust, protecting the worker, and preserving the produc t . Packed bags are placed on palle t s and transported
by forklift to the warehouse section of the mill to await sale and
shipment. Tr. 325; 5 FMSHRC at 1110 .
On May 7, 1981, Federal Mine Safety and Health Administration
("MSHA") inspector George LaLumondiere, accompanied by Max Slade of
MSHA's Metal and Nonmetal Health Division, MSHA supervisor Raymond
Roessler, and plant manager Harold Schmarje, conducted an inspection of
the mi l l . There is no evidence in the r ecord that employees were working
in the mill or that any machinery was in operation during the inspection .
MSHA perf ormed no testing or sampling of exposure levels to airborne
contaminants during the inspection. On the warehouse floor, settled
dust showed tracks from the forkli f t , and the floor and equipment throughout the mill were covered with dust. Air leaks which emitted dust into
the mill were observed. Dust in the air was visible .

Footnote l end.
exceed, on the basis of a time weighted average, the
threshold limit values adopted by the American Conference
of Governmental Industrial Hygienists, as set forth and
explained in the 1973 edition of the Conference's publication,
entit l ed "TLV ' s Threshold Limit Val ues for Chemical Substances
in Workroom Air Adopted by ACGIH for 1973," pages 1 through 54,
which are hereby incorporated by reference and made a part
hereof . ... Excursions above the listed thresholds shall not
be of a greater magnitude than is characterized as permissible
by the Conference.
30 C. F. R. §§ 57 . 5-1 and 57.5- 5 were recodified without change in 1985 as
30 C. F . R. §§ 57.5001 and 57 . 5005. 50 Fed. Reg. 4048 (January 29, 1985) .

200 '7

Mr. Slade testified that the dust he observed in the plant was
"general dust from the entire plant, from all three bagging machines and
from the various leaks around the plant . " Tr . 326. Slade also confirmed
that he had no way of identifying with any certainty the specific source
of the dust he observed on the floor . At the classifiers and at the
milling machines , dust was everywhere. At the ruff-buff bagging machine ,
t he shroud was disconnected from the machine and lying on the floor
several feet away . Both the floor around the machine and the shroud
were covered with heavy accumulations of dust. Based on the thickness
of silica dust covering the shroud, Slade estimated the shroud had been
on the floor for several weeks.
A pallet partially filled with bags containing ruff-buff was adjacent
to the ruff-buff bagger. Also, seven pallets stacked with filled bags
were located nearby. From the packaging dates stamped on the bags,
Inspector LaLumondiere estimated that since the installation of the
ruff-buff bagger in January 1981, the machine had been in operation at
least five times through May 5, 1981, although he had never personally
seen it in operation. Because of its infrequent use, MSHA had never
tested the ruff-buff bagger for compliance or sampled the levels of
employee exposure to silica dust generated by the bagger. Tr. 232- 241.
An MSHA analysis of a ruff- buff sample taken from an opened bag at the
mill on August 21, 1981, three and one-half months after the citation
was issued, showed that 94% of the tested ruff-buff was not of sufficiently
small size to be considered respirable. However, an employee of the
National Institute of Occupational Safety and Health ("NIOSH") testifying
for the Secretary stated that of the remaining 6%, 98% would be respirable.
Tr. 124-25, 127-28 .
Mr. Schmarje and several Tammsco witnesses testified that the
shroud had been on the machine until several days prior to the May 7
inspection, when it was damaged by a forklift and removed. Schmarje
specifically denied admitting to the inspector on May 7 that the bagging
machine had been used previously without the shroud attached. Tr .
410-13, 451.
After inspecting the ruff- buff machine and the pallets, the inspector
issued a citation under section 104(d)(l) of the Act, 30 U. S.C . § 814(d)(l),
alleging a violation of 30 C.F.R. § 57.5-5. The citation described the
violation as follows:
The Ruff Buff bagging machine was not hooked into
the dust collection system of the mill . The dust
control plan submitted on 4-14- 80 states that all
bag machines ~vill have dust collectors as engineering controls to control silica dust . This
bagger is in use and a pallet of Ruff Buff was
partially loaded. This is an unwarrantable
failure. ]:_/
2/
The statement in the citation that, "[t]his bagger is in use" was
explained by HSHA witnesses to mean not that the machine was being used
on May 7, 1981 , but that it must have been used at times between January
1981 and May 5, 1981 as evidenced by the dates stamped on filled bags of
ruff-buff. Tr. 206-09 .

2008

Much of the voluminous record developed at the hearing concerns the
evolution of the "dust control plan" referred to in the citation.
Following an inspection of the mill in July 1979 by NIOSH health experts
and the issuance of several section 104(b) closure orders based upon
sample results showing silica dust in excess of the applicable threshold
limit value ("TLV"), MSHA furnished Tammsco with a copy of a "dust
control procedure plan" used by a competitor silica mill to maintain
permissible levels of air quality. MSHA suggested that the Tammsco mill
could reopen if a similar plan were put into effect. On April 14, 1980,
Tammsco submitted to MSHA the "dust control plan" referred to in the
citation, and the closure orders were terminated.
In his decision vacating the citation, the judge concluded:
Although the citation issued in these proceedings
implies a violation of "the dust control plan
submitted on April 14, 1980", I fail to understand
how MSHA believes it can establish a violation of
such a plan when there is no mandatory standard
requiring an operator to submit ·or adopt any dust
control plan.
5 FMSHRC at 1139.
The judge also held that "the application of section 57.5-5 is
specifically conditioned on a finding that exposure to airborne contaminants is in excess of the permissible limit defined in section 57.5-1,"
and that such finding '~as consistently been determined by testing and
sampling to establish that e~p1oyee exposure to such dust exceeded the
recognized TLV." 5 FMSHRC at 1124, 1132; (emphasis deleted). The judge
noted that MSHA had not conducted timely testing or sampling to establish
employee exposure levels prior to issuing the citation. The judge
concluded, "MSHA has failed to establish that the levels of employee
exposure to any harmful silica dust generated by the bagging of the
ruff-buff product without the dust shroud attached to the cited bagging
machine exceeded the acceptable threshold limit value mandated by section
57 .5-l." S FMSHRC at 1132-33.
As to the section llO(c) proceeding brought against plant manager
Schmarje, the judge found that MSHA had proved that Schmarje "knew or
had reason to know" that the bagger had been operated without the shroud
on May 5, 1981. 11
However, the judge held, in effect, that because a

lf

Section llO(c) of the Mine Act, 30 U. S.C.

§

820(c)(l982) states:

Whenever a corporate operator violates a mandatory health or
safety standard or knowingly violates or fails or refuses to comply
with pny order issued under this Act or any order incorporated in a
final decision issued under this Act, except an order incorporated
in a decision issued under subsection (a) or section 105(c), any
director, officer, or agent of such corporation who knowingly
authorized, ordered, or carried out such violation, failure or
refusal shall be subject to the same civil penalties, fines, and
imprisonment that may be imposed upon a person under subsections
(a) and (d).

2009

violation of the cited standard was not established, there was no basis
to assess a civil penalty against Schmarje. 5 FMSHRC at 1139~
We agree with the judge that in order to establish a violation of
section 57.5-5, the Secretary must first prove a violation of section
57.5-1. It is clear from the language of the Secretary's standard that
section 57.5-5 establishes an exception to the general mandate of section
57.5-1 which requires that airborne contaminants not exceed their TLV,
and that the application of section 57 . 5-5 is conditioned specifically
on a determination that miners are exposed to excessive levels of airborne
contaminants in violation of section 57 . 5-1. 4/ These exposure levels
are to be determined by actual sampling, not by inference. 5/ As the
judge noted, however, the citation at issue alleges a failure to comply
with a provision of the "dust control plan", and does not allege overexposure to airborne contaminants. We agree with the judge that the
Part 57 air quality standards do net provide for the adoption and approval
of a dust control plan which can be enforced as a mandatory health
standard. ~· Carbon County Coal Co., 7 FMSHRC 1367, 1370 (September
1985)(discussing the approval and adoption of dust control plans required
by 30 u.s.c. § 863(o)). For this ~eason, and because no monitoring,
testing or sampling of employees or the atmosphere was performed by MSHA
during the inspection, the judge correctly dismissed the proceedings.
In light of our decision it is unnecessary to reach the technical
questions concerning proper sampling procedures and methods of material
analysis addressed at length in the Secretary's brief . 6/ Nor do we
need to reach the Secretary's eont~ntion that the judge-erred in considering the ruff-buff and the ruff-buff bagger in isolation from all
~/

In Climax Molybdenum Company, the Secretary conceded that there
could be no violation of section 57.5-5 without first proving a violation
of section 57.5-1, and we affirmed a Commission judge's vacation of five
alleged violations of 30 C.F.R. § 57.5-5 based on the Secretary's representation that he could not prove that excess concentrations occurre~
due to "problems" with his sampling procedures. 2 FMSHRC 2748, 2750-51
(October 1980), aff'd, 703 F.2d 447 (lOth Cir. 1983).
5/
This conclusion is consistent with MSRA's own procedures as stated
in the Metal and Nonmetal Mine Safety and Health Inspection and Investigation Manual (1981). 65-AAl and 66-D-2-3 . This manual is an official
MSHA publication. It contains guidelines to aid MSHA inspectors in
citing violations of the mandatory safety and health standards for metal
and nonmental mines .
6/
There is pending a motion by the Secretary to strike the first full
paragraph on page 4 of Tammsco's brief filed February 1, 1984, which
contains comments on the Secretary's brief by an authority who had not
testified at the hearing. Citing section 113(d)(2)(c) of the Mine Act,
30 U.S.C. § 823(d)(2)(c)(l982), the Secreta ry argues that the Commission's
consideration on review is limited to evidence in the record before the
administrative law judge. Tammsco responded to the motion. Upon consideration, the Secretary's motion is granted.

2010

other sources of airborne contaminants throughout the mill. While these
issues and considerations might be.relevant in other cases, they represent
issues unrelated to the controlling issue here. The Secretary also
urges us to read into section 57.5-1 and section 57.5-5 a premise that
once excessive exposure levels have been established through monitoring,
and engineering controls have been implemented, proof of a subsequent
failure to maintain those controls ,. without proof of overexposure through
further monitoring, constitutes a violation of the cited standards.
This, however, is not what the standards provide . If the Secretary
desires to cite an operator for failure to maintain engineering controls
without first needing to resort to proving overexposure to airborne
contaminants through accepted sampling procedures, the Secretary must
amend his standards.
Accordingly, we affirm the dec ision of the judge vacating the
section 104(d)(l) citation and dismissing these proceedings. Zl

·~~
Richard V. Backley, Acting Chairman

7/
Commissioner Doyle assumed office after this case had been considered at a Commission decisional meeting and took no part in the
decision. A new Commissioner possesses legal authority to participate
in pending cases but such participation is discretionary and is not
required for the Commission to take official action . The other
Commissioners reached agreement on the disposition of the case prior to
Commissioner Doyle's assumption of office, and participation by
Commissioner Doyle would therefore not affect the outcome. In the
interest of efficient decision making, Commissioner Doyle elects not to
participate in this case.

2011

Distribution
Malachy J. Coghlan, Esq.
Holiday Professional Center
800 N. Kinzie Avenue
Bradley, Illinois 60915
Linda L. Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge George A. Koutras
Federal Mine Safetr and Health Review Commission
5203 Leesburg Pike, lOth Floor
Falls Church, Virginia
22041·

2012

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

December 12, 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. LAKE 85-90

YOUGHIOGHENY & OHIO COAL
COMPANY
ORDER
On December 4, 1985, the Commission granted a petition for discretionary
review filed by the Youghiogheny & Ohio Coal Company {"Y&O") in this case.
In the petition for review, Y&O challenged the administrative law judge's
finding that a violation of 30 C.F.R. § 75.305 ("weekly examinations for
hazardous conditions") was "significant and substantial" as that term is
used in section 104(d)(l) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 814(d)(l) (1982). Y&O also challenged the judge's
assessment of a $750 penalty for the violation of section 75.305, arguing
that the penalty is e.x cessive and that the judge failed to explain
sufficiently the basis for his penalty assessment. In directing review
of this case, we suspended the parties' briefing schedule.

Upon further consideration, we remand this proceeding so that the
judge may enter the necessary findings as to each of the six statutory
penalty criteria supporting his $750 penalty assessment. 30 U.S.C.
§ 820(i) .
Cf. ·sellersburg Stone Co., 5 FMSHRC 287 (March 1983), aff'd,
736 F.2d 1147 (7th Cir. 1984). Following the judge's supplemental
decision on remand, Y&O may again seek Commission review on any issues
as to which it remains aggrieved in accordance with the provisions of
section 113 of the Mine Act . 30 U.S.C .
823.

~=~~~

L~Nelson, Commissioner

2013

Distribution
Robert C. Kota, Esq.
Youghiogheny & Ohio Coal Company
P. O. Box 1000
St. Clairsville, Ohio 43950
Ann Rosenthal, Esq.
U.S. Department of Labor
Office of the Solicitor .
u.s. Department of Labor
4015 Wilson Blvd.
,Arlf:ngton; Virginia 22203
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, lOth Floor
F~lls Church, ' Virginia 22041

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

20006

December 18, 1985
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of ROBERT A. RIBEL
Docket No . WEVA 84-33-D

v.

EASTERN ASSOCIATED COAL CORPORATION

BEFORE:

Backley , Acting Chairman; Lastowka and Nelson, Commissioners
DECISION

BY THE COmiTSSION:
This discrimination proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("the Mine Act"),
and it involves cross-petitions for review filed by Easter n Associated
Coal Corporation ("Eastern 11 ) and miner Robert Ribel. The principal
issues presented are : (1) whether the administrative law judge correctly
held that Eastern unlawfully discharged Mr . Ribel in violation of section
105(c)(l) of the Mine Act, 30 U. S.C. § 815(c)(l); and (2) whether the
judge correctly held that attorneys' fees for privately retained counsel
are not to be awarded where, as in this case, the discrimination proceeding
is initiated on the prevailing miner's behalf by the Secretary of Labor
pursuant to section 105(c)(2) of the Act. 30 U.S . C. § 815(c)(2). On
the bases explained below, \ole affirm the judge ' s finding of discrimina t ory
discharge and we affirm in part and reverse and remand in part on the
attorneys' fees issue. \~ile we recognize a general right to attorneys'
fees for privately retained counsel in a Secretary-initiated section
105(c) (2) proceeding, ~ole hold that under the particular facts of this
case and the standard that we adopt for determining an award of a fee to
private counsel, Ribel's counsel is entitled only to a limited attorneys'
fees award.
I.

Merits

The issue here is whether Ribel toTas discharged by Eastern in retaliation for his having made safety complaints to mine management and for
his having filed a safety- related discrimination complaint with the
Department of Labor ' s Hine Safety and Health Administration ( "MSUA") as
the Secretary claims, or whether as Eastern claims , he was discharged

2015

for sabotaging a telephone on a longwall mining unit. A Commission
judge rejected Eastern's charge of sabotage and held that Ribel was
fired because of his protected safety activities and his having filed a
discrimination complaint with MSHA, i.e., that Eastern had violated
~ection 105(c)(l) the Mine Act. 1/ The judge ordered Eastern to reinstate Ribel to his former (or equivalent) position with full seniority
rights and benefits, and to expunge from Ribel's personnel records all
references to the discharge. The judge also awarded Ribel back pay from
the date of his discharge to the date of Eastern's compliance with the
judge's earlier order of temporary reinstatement, issued pursuant to
Commission Rule 44, requiring that Ribel be reinstated pending the
outcome of this case. 29 C.F.R. § 2700.44. ~/
Upon review of the extensive record in this case, and after having
heard oral argument, we conclude that substantial evidence supports the
judge's holding that Eastern violated section lOS(c)(l) of the Act when it
suspended and subsequently discharged Ribel. 30 U.S.C. § 823(d)(2)(A)(ii)(I).
Our discussion follows .
1/

Section lOS(c)(l) provides:
No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of
the statutory r~ghts of any miner, representative of miners
or applicant for employment in any coal or other mine
subject to this Act because such miner, representative of
miners or applicant for employment has filed or made a
complaint under or related to this Act, including a complaint notifying the operator or the operator's agent or
the representative of the miners at the coal or other mine
of an alleged danger or safety or health violation in a
coal or other mine, or because such miner, representative
of miners or applicant for employment is the subject of
medical evaluations and potential transfer under a standard
published pursuant to section 101 or because such mine~,
representative of miners or applicant fo~ 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 statuto~y
right afforded by this Act .

30 U.S.C. § 815(c)(l)(emphasis added).
2/
The judge's decision is reported at 6 FMSHRC 2203 (September 1984)
(ALJ). Following our direction for review, we remanded the merits
portion of the case for additional findings of fact and analysis .
7 FMSHRC 874 (June 1985). The judge's supplemental decision issued on
remand is reported at 7 FMSHRC 1059 (July l985)(ALJ).

2016

Prior to his discharge in August 1983, Ribel was employed as a
shield setter with a longwall mining unit at Eastern's Federal No. 2
Mine, an underground bituminous coal mine located in Fairview,
West Virginia. As a shield setter Ribel's chief duty involved advancing
the hydraulic roof supports, or shields, of the longwall miner. Until his
discharge, Ribel had worked as a shield setter at the Federal No. 2 Mine
for approximately six years. There is no record evidence of any disciplinary action having been taken by Eastern against Ribel during his
tenure.
In early May of 1983, Ribel and fellow shield setters on the 7-Right
Section midnight shift, John Kanosky and Danny Wells, complained to mine
management about Eastern's practice at the Federal No. 2 Mine of "double
cutting" with the longwall miner. 3/ The three shield setters claimed
that they were exposed to unhealthy and unsafe levels of coal dust when
advancing the roof supports of the longwall miner during the double cut
phase. As a result of the shield setters' complaint, Eastern discontinued
the practice of double cutting on the 7-Right Section midnight shift.
Eastern, however, continued to double cut on its other shifts, a practice
that it had followed during the previous six years while complainant
Ribel had been employed at the Federal No. 2 Mine.

On May 18, 1983, an incident occurred on the midnight shift involving Ribel, Kanosky, and Wells and their shift foreman, Jack Hawkins.
The three shield setters claimed that on May 18 foreman Hawkins had
threatened them, stating that if they did not agree to double cutting on
their shift they would be given unfavorable work assignments and no
longer would they be permitted to work overtime either during their
lunch period or after the completion of their shift. Hawkins denied
threatening the shield setters. On May 31, 1983, Ribel, Kanosky, and
Wells filed a complaint with MSHA alleging that Hawkins had carried out
his threats against them because of their continued refusal to double
cut. The Secretary in turn filed a discrimination complaint tvith the
Commission on the shield setters' behalf and the matter was docketed as
t.J'EVA 84-4-D. 4/
3/
In double cutting the longwall miner shearer cuts the coal both as
it proceeds from the tailgate section of the longwall unit to the headgate
section, and as the shearer returns from the headgate back to the .tailgate. In single cutting the shearer cuts the coal only as it proceeds
from the tailgate to the headgate.
4/
Docket No. WEVA 84-4-D was consolidated by the trial judge for
hearing and decision with the proceeding nmv before us on review,
Docket No. WEVA 84-33-D, inasmuch as Ribel contends in this case that he
was fired by Eastern because of the discrimination complaint that he,
Kanosky, and Wells had filed with MSHA in May of 1983. In Docket No.
WEVA 84-4-D, the judge held in favor of Eastern and dismissed the miners'
complaint, concluding that the Secretary had failed to prove that double
cutting was either unlawful or unsafe. See 6 FMSHRC 2203, 2271-75
(September 1984)(ALJ). Commission review of the judge's adverse decision
in Docket No. l~VA 84-4-D was not sought by the Secretary or by Ribel.

2017

Following the May 18, 1983 incident between shield setters Ribel,
Kanosky, and Wells and foreman Hawkins and up until the time of Ribel's
discharge, the midnight shift on the 7-Right Section continued to single
cut . On August 5, 1983, the events immediately preceding Ribel's discharge occurred.
At the beginning of the August 5 midnight shift Michael Toth, the
longwall coordinator responsible for coal production on the 7- Right
Section, held a special meeting with that section's longwall mining
crew. Toth, who ordinarily worked on the day shift, testified that the
purpose of the meet ing was twofold: to settle personal differences
between members of the crew and foreman Hawkins concerning the manner in
which Hawkins conducted his preshift examination of the 7- Right Section;
and to discuss what mine management believed was an increasing incidence
on the midnight shift of damage to the telephones on the 7-Right Section's
longwall unit . The meeting was conducted in the miners' dinner hole and
among those present were shield setters Ribel, Kanosky, and Wells , shift
foreman Hawkins, and shift mechanic Russel Toothman.
Ribel and Toothman left the August 5 meeting before it was ·concluded
in order to complete their previously assigned task of checking the
telephones on the longwall miner prior to the start of the shift. There
were seven telephones on the 7-Right Section longwall mining unit,
spaced approximately 100 feet apart. Toothman remained at the longwall
miner ' s headgate in order to receive the phone calls from Ribel who had
proceeded down the 500- foot longwall unit toward the unit's tailgate.
Ribel reported to Toothman that phones No . 52 and No . 89 were not working
properly. Upon completing the phone check, Ribel remained at the tailgate
section and awaited the start-up of the longwall miner in order to
complete another assigned task .
At this time, longwall coordinator Toth arrived at the face and was
informed by Toothman that phones No. 52 and No . 89 were reported by
Ribel not to be working properly. Toth checked the two phones and
claimed t hat they were in working order. Toth then instructed Toothman
to assist him in rechecking all seven tel ephones . It was during this
second check that a wire inside the No . 32 phone leading to the phone ' s
paging system was discovered to be severed. Toth immediately discussed
the matter of the severed wire with Ribel and Toothman. During that
discussion Toth charged Ribel with sabotage and suspended him with
intent to discharge. Following his dismissal, Ribel filed a grievance
under the governing collective bargaining agreement. An arbitrator
denied Ribel ' s grievance and this litigation ensued .
The focus of the hearing before the Commission judge was whether
Ribel had cut the No. 32 phone wire. In his initial decision, the. judge
regarded that inquiry as being the "crucial question" in this case .
6 FMSRRC at 2281 . After reciting the evidence in great detail, the judge
concluded that Eastern had failed to establish that it was Ribel who
sabotaged the No. 32 phone and that Eastern had failed to rebut Ribel's

2018

prima facie case of discriminatory discharge. 6 FMSHRC at 2285-87 . In
our subsequent remand order, we directed the judge "to analyze in detail
whether a prima facie case of discrimination was established" and "to
determine what actually occurred at the August 5, 1983 meeting between
longwall coordinator Michael Toth and the miners on the midnight shift,
and that meeting's relationship, if any, to the allegation that the
decision to suspend Ribel with intent to discharge was a violation of
sectlon 105(c)." Seen. 2, supra.
On remand, the judge concluded that in suspending Ribel on August
5, 1983, longwall coordinator Toth was unlawfully motivated by Ribel's
safety complaints concerning double cutting, as well as by Ribel's May
31, 1983 discrimination complaint filed with MSHA against foreman Hawkins
which also involved the issue of double cutting. The judge further
concluded that the reason given by Toth for suspending Ribel with intent
to discharge -- the allegation of sabotage -- was, in effect, a pretext
and that Toth had opportunistically "seized upon" the sabotage incident
as a means of getting rid of Ribel, with the intended result being a
return to double cutting on the 7-Right Section midnight shift and an
increase in coal production. 7 FMSHRC at 1064-65. We hold that the
judge's material factual findings regarding the discrimination claim are
supported by substantial evidence of record and that his conclusions
must be upheld.
In order to establish a prima facie case of discrimination under
section 105(c) of the Mine Act, a complaining miner bears the burden of
production and proof to establish that (1) he en.g aged 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 (October 1980), rev'd on other grounds
sub nom. Consolidation Coal Co. v . Marshall, 663 F.2d 1211 (3rd Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803, 817-18 (April 1981). The operator may rebut the prima facie
case by showing either that no protected activity occurred or that the
adverse action was not in any part motivated by protected activity. If
an operator cannot rebut the prima facie case in this manner it nevertheless may defend affirmatively by proving that (1) it was also motivated
by the miner's unprotected activities, and (2) it would have taken the
adverse action in any event for the unprotected activities alone. The
operator bears the burden of proof with regard to the affirmative defense.
Haro v. Magma Copper Co., 4 FMSHRC 1935, 1936-38 (November 1982). · The
ultimate burden of persuasion does not shift from the complainant.
Robinette, 3 FMSHRC at 818 n. 20. See also Boich v . FMSHRC, 719 F.2d
194, 195-96 (6th Cir. 1983); Donovan v. Stafford Constr. Co., 732 F.2d
954, 958-59 (D.C . Cir. 1984)(specifically approving the Commission's
Pasula-Robinette test). The Supreme Court has approved the Natio~al
Labor Relations Board's virtually identical analysis for discrimination
cases arisi~g under the National Labor Relations Act. NLRB v. Transportation Management Corp . , 462 U.S. 393, 397- 403 (1983).

2019

In his initial decision the judge found that "Mr. Toth knew Mr.
Ribel was one of the individuals causing 'problems' and filing complaints over safety questions" and that Ribel's safety complaints were
"lurking in the background" at the time ~f his discharge. 6 FMSHRC at
2284-85. On remand the judge further found that it was "abundantly
clear" from the record that both Hawkins and Toth were hostile towards
Ribel because of Ribel's protected safety complaints concerning the
matter of double cutting and his discrimination complaint filed against
Hawkins which stemmed from Ribel's refusal to double cut. 7 FMSHRC at
1063. Substantial evidence supports the judge's conclusion that a
hostile atmosphere existed between Hawkins, Toth, and the miners of the
7-Right Section midnight shift. The judge found that: (1) Toth was
aware of the problems that existed between Hawkins and the midnight
shift crew and that those problems adversely affected coal production;
(2) Toth had a "definite interest" in the problems between Hawkins and
his crew inasmuch as Toth was responsible for coal production on the
7-Right Section; (3) in the past Toth had talked with the United Mine
Workers of America safety committee "several times" about double cutting;
and (4) Toth had been aware of the fact that Ribel had filed a discrimination complaint against Hawkins with MSHA over the issue of double
cutting. 7 FMSHRC at 1061-62.
Further evidencing this hostile atmosphere, the judge recounted the
crucial meeting between Toth and the midnight shift crew which took
place prior to the start of the August 5, 1983 shift and which immediately preceded Ribel·' s discharge. Crediting the testimony of shield
setters Wells and Kanosky, the judge found that Toth stated that he was
getting tired of safety complaints being filed and that miners could end
up losing their jobs if the complaints did not stop. The judge also
credited the testimony of miners Steve Reeseman and Larry Hayes concerning
Toth's comments to Wells after Toth had observed Wells laughing during
the meeting. Reeseman testified that Toth told Wells, "all of this
petty stuff that has been going out to the safety department, every day,
and every day, is going to stop, or you will be next." Hayes testified
that Toth told Wells that "he would be next" and that Hells would "come
out on the shitty end of the stick" because of the safety complaints .
7 FMSHRC at 1062. The judge rejected Toth's explanation that his statements to the miners had not been intended as threats. These findings are
supported by substantial evidence.
The judge's findings depict a simmering, tense atmosphere on the
7-Right Section's midnight shift at the time of Ribel's discharge because
of the continued refusal of Ribel, Kanosky, and Wells to double cut,
their complaint to MSHA, and Hawkin's and Toth's frustration as a result
of the corresponding decrease in coal production. In fact, the judge
specifically found that due to the double cutting dispute Ribel's 'r elationship with mine management was fraught with "animosity and acrimony."
7 FMSHRC at 1063. As the judge noted, "this hostility was the result of
the disruptive and protracted safety conf rontations between Mr. Hawkins
and his crew, and the fact that Mr. Ribel and several of his co-workers

2.020

chose to make safety and discrimination complaints over the practice of
double cutting and other mining practices." 7 FMSHRC at 1064 . Thus,
the judge's conclusion that Ribel established a prima facie case of
discrimination is supported by substantial evidence.
The judge further rejected Eastern's argument that Ribel was fired
due to Toth's asserted belief that Ribel had cut the phone wire on the
longwall section. In his initial decision the judge reviewed the evidence
and stated:
I cannot conclude that the respondent has established
that Mr . Ribel is the guilty party. To the contrary,
I conclude and find that at least one or more
individuals (Toth, Ha~vkins, Reeseman) were on the
section at the time of the incident at question,
and that they had access to the telephone and had
as much opportunity to cut the wire as did Mr.
Ribel. In short, I reject the motion that strong
circum~tantial evidence point~ only to Mr . Ribel
as the culprit, and I conclude that there is
reasonable doubt as to his guilt.
6 FMSHRC at 2287 . In his supplemental decision the judge expanded on
his previous findings, stating: "Given all of this turmoil • •• Mr. Toth
seized upon the opportunity to blame the ~.;rire cutting on Hr. Ribel , and
rather than conducting a thorough investigation into the matter, he made
a rather cursory decision that Mr. Ribel was the guilty party ••• [and]
somehow hoped to end all of the conflict which had directly affected his
operation." 7 FMSHRC at 1065 (emphasis added). We conclude that these
findings are supported by substantial evidence.
Accordingly, we affirm the judge's holding that Eastern discharged
Ribel in violation of section lOS(c) of the Mine Act. Our affirmance is
based on the narrow ground that substantial evidence supports the judge's
holding that longwall coordinator Toth "seized upon" the phone sabotage
incident as a pretext to retaliate against Ribel for his protected
activities associated with the double cutting dispute. In reaching that
conclusion, the judge made several critical credibility determinations
in favor of Ribel and we can find no reason on review for taking the
unusual step of overturning them. See l-lilliam A. Haro v. Magma Copper
Company, 4 FMSHRC 1935, 1943 (November 1982).
II.

Attorneys' Fees

Although this discrimination proceeding t.;ras initiated and litigated
on Ribel's behalf by the Secretary pursuant to section 105(c)(2) of the
Act, 30 U.S.C. § 815(c)(2), 5/ Ribel also retained private (i.e., ~on
government) counsel to represent him in this matter. The attorneys ' fees

11

Section 105(c)(2) provides:
Any miner or applicant for employment or representative
of miners who believes that he has been discharged,
(footnote 5 continued)

2021

issue involves the Commission judge's denial of Ribel's application for
a fee award for expenses incurred in his retention of private counsel.
6 FMSHRC 2744 (December 1984)(ALJ). Specifically, Ribel had sought
$9,065.66 for expenses associated with his retention of attorney Barbara
Fleischauer and a total of $1,000.98 for services rendered by two law
professors, Professor Robert Bastress and Professor Franklin Cleckley.
Footnote 5 end.
interfered with, or otherwise discriminated against by any
person in violation of this subsection may, within 60 days
after such violation occurs, file a complaint with the
Secretary alleging such discrimination. Upon receipt of
such complaint, the Secretary shall forward a copy of the
complaint to the respondent and shall cause such investigation to be made as he deems appropriate. Such investigation shall commence within 15 days of the Secretary's
receipt of the complaint, and if the Secretary finds that
such complaint was not frivolously brought, the Commission,
on an expedited basis upon application of the Secretary,
shall order the immediate reinstatement of the miner pending
final order on the complaint. 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, with service upon the alleged
violator and the miner, applicant for employment, or representative of miners alleging such discrimination or interference and propose an order granting appropriate relief.
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 upon findings of
fact, affirming, modifying, or vacating the Secretary's
proposed order, or directing other appropriate relief. Such
order shall become final 30 days after its issuance. The
Commission shall have authority in such proceedings to
require a person committing a violation of this subsection
to take such affirmative action to abate the violation as
the Commission deems appropriate, including, but not limited
to, the rehiring or reinstatement of the miner to his former
position with back pay and interest. The complaining miner,
applicant, or representative of miners may present additional
evidence on his own behalf during any hearing held pursuant
to this paragraph.
(Emphasis added.)

2022

The judge denied Ribel's fee application on the ground that attorneys'
fees are not awardable where, as in this case, the proceeding is initiated
and litigated on the prevailing miner's behalf by the Secretary pursuant
to section 105(c)(2). 30 U.S.C. § 815(c)(2). We disagree and we hold
that private attorneys' fees may be awarded to a prevailing miner in a
Secretary-initiated section 105(c)(2) discrimination proceeding, provided
that private counsel's efforts are non-duplicative of the Secretary's
efforts and further, that private counsel contributes substantially to
the success of the litigation.
The general principle of what has become to be recognized as the
"American Rule" is that absent an express statutory grant allowing for
the awarding of attorneys' fees, each party is to bear his own litigation
expenses. Alyeska Pipeline Service Co. v. Wilderness Society, 421 u.s.
240 (1975). The Secretary proceeded in this matter under section 105(c)(2)
of the Act. Section 105(c)(2) does not provide specifically for the
awarding of attorneys' fees. See n. 5, supra. We note, however, that
it is not the Secretary who is~eking a fee award; it is the prevailing
miner. 6/ In that regard, the subject of attorneys' fees is mentioned
specifically in section 105(c)(3) of the Act. 30 U.S.C. § 815(c)(3).
Section 105(c)(3) allows a miner to file a discrimination complaint with
this independent Commission on his o\m behalf if the Secretary declines
to do so under section 105(c)(2). 7/ Regarding the awarding of attorneys'
fees, section 105(c)(3) states:
Whenever an order is issued sustaining the
complainant's charges under this subsection, a sum
equal to the aggregate amount of all costs and
expenses (including attorney's fees) as determined
by the Commission to have been reasonably incurred
by the miner, applicant for employment or representative of miners for, or in connection with,
the institution and prosecution of such proceedings
shall b~ assessed against the person committing
such violation • • • •
(Emphasis added.)

if

The Secretary has taken no position on the attorneys' fees issue.

lJ

Section l05(c)(3) in part provides:
Within 90 days of the receipt of a complaint filerl under
paragraph (2), the Secretary shall notify, in writing, the
miner, applicant for employment, or representative of miners ·
of his determination whether a violation has occurred. If
the Secretary, upon investigation, determines that the provisions of this subsection have not been violated, the complaintant shall have the right, within 30 days of notice of
the Secretary's determination, to file an action in his own
behalf before the Commission, charging rliscrimination, or
interference in violation of paragraph (1) ••••

We conclude that the fee shifting provisions contained in section
!OS(c)(3) authorize the awarding of private attorneys' fees to a prevailing
miner in a Secretary-initiated section 105(c)(2) proceeding. In reaching
that conclusion we recognize the interplay between these two key enforcement
provisions. While subsection (c)(2) focuses upon the Secretary's prosecution
of a miner's discrimination complaint and subsection (c)(3) focuses upon
a miner's prosecution of his own complaint, it is clear that these two
statutory provisions are but parts of the whole arsenal that Congress
intended to be available to miners who have been victims of unlawful
discrimination. In fact, in section 10S(c)(2) Congress contemplated
that miners could separately participate in Secretary-initiated proceedings by providing, "The complaining miner ••. may present additional
evidence on his own behalf during any hearing held pursuant to this
paragraph." 30 u.s.c. § 815(c)(2).
The Mine Act's legislative history supports the conclusion that a
prevailing miner may obtain private attorneys' fees in a section 10S(c)(2)
proceeding. Regarding the relief provisions contained in section lOS(c),
the Senate Report on the Mine Act states:
It is the Committee's intention that the Secretary propose,
and that the Commission require, all relief that is necessary
to make the complaining party whole and to remove the deleterious effects of the discriminatory conduct including, but not
limited to reinstatement with full seniority rights, back-pay
with inter~st, and recompense for any special damages sustained
as a result of the discrimination. The specified relief is
only illustrative • • ••
S. Rep. No. 181, 95th Cong., 1st Sess. (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th-c:ong., 2d
Sess., Legislative Histor ~f the Federal Mine Safet and Health Act
of 1977, at 625 1978)(emphasis added). Thus, it would be inconsistent
with the remedial purpose of the Mine Act in general and more specifically
with the "make whole" provisions of the Act's legislative history,
particularly in view of the express statutory grant of attorneys' fees
in section 105(c)(3), to deny a prevailing miner private attorneys' fees
solely on the ground that 'the proceeding was initiated by the Secretary
under section 10S(c)(2).
Our holding in this case is consistent with the decision in Secretary ,
on behalf of Michael J . Dunmire and James Estle v. Northern Coal Company,
4 FMSHRC 126 (February 1982) . In Northern Coal, we awarded certain
relief specified only in section 10S(c)(3) to tHO miners, even though
the proceeding in that case was initiated by the Secretary under section
105(c)(2) . We held:
Regarding incidental, personal hearing expenses
incurred by Estle and Dunmire in connection with
their attendance, Northern argues that because

2'02'4

section 105(c)(3) of the Mine Act expressly provides
for hearing expenses, while section 105(c)(2) does
not mention the subject, Congress must have intended
that such expenses were outside the scope of a
section 105(c)(2) remedial award. We agree with the
judge that the differences in language between the
t wo sections are not as significant as Northern argues.
Section 105(c)(2) expressly provides that the
relief it authorizes is not limited to the reinstatement and back pay mentioned. Furthermore,
the " illustrative" nature of the relief listed in
section 105(c)(2) is made clear by the legislative
history we quoted above. Estle and Dunmire would
not have borne such expenses (and inconvenience)
but for Nor thern ' s discrimination. We th~refore
hold that reimbursement of their hearing expenses
is an appropriate form of remedial relief.
4 FMSHRC at 143-44 (fn. omitted and emphasis added).
Finally , additional support for the awarding of private attorneys '
fees in a section 105(c)(2) proceeding is found in the use of the terms
" subsection" and "paragraph" in sections 105(c)(2) and (c)(3). These
sect ions indicate that when Congress referred to the term "subsection"
it meant subsection (c) of section 105, and that when Congress referred
to the term "paragraph" it meant the numbered paragraph specifically
mentioned . Accordingly, Congress ' providing for an award of attorneys '
fees in section 105(c)(3), "Whenever an order is issued sustaining the
complainant's charges under this subsection," (emphasis added) encompasses private attorneys' fees sustained by a miner in an action prosecuted by the Secretary.
Having concluded that private attorneys' fees are awardable in a
Secretary- initiated discrimination proceeding our next inquiry is the
proper standard for determining the amount of the fee award. · Section
105(c) (3) specifically sets forth two requirements: the first is that an
order be issued " sustaining the complainant's charges"; the second is
that the attorneys ' fees awarded be "reasonably incurred. 11 Construing
these provisions in the context of a section 105(c)(2) proceeding, we
hold that private attorneys' fees are awardable in a Secretary-initiated
section 105(c)(2) proceeding only to the extent that the efforts advanced
by the prevailing miner's private counsel are non-duplicative of the
Secretary's efforts and that private counsel has contributed substantially
to the success of the litigation .
This requirement stems from the enforcement scheme of section
lOS(c) of the Ac.t, 30 U.S.C. § 815(c), \vhich clearly establishes the
Secretary as the chief prosecutor in discrimination matters. Section
105(c)(2) places upon the Secretary the primary responsibility for
enforcing the anti- discrimination provisions contained in section 105(c)(l).
See n. 5, supra. It requires the Secretary to conduct an investigation
~a miner ' s complaint within specified time limits and to proceed on

the miner's behalf before this Commission if the Secretary determines
that unlawful discrimination has occurred . Thus, despite the fact that
a miner may present evidence in a proceeding initiated by the Secretary
under section 105(c)(2), and may proceed on his own behalf under section
105(c)(3) if the Secretary declines to prosecute his discrimination
claim, the enforcement scheme of section lOS(c) clearly establishes the
Secretary as the chief prosecutor in discrimination matters.
The standard that we adopt for fixing the fee award for private
counsel in a Secretary-initiated section 105(c)(2) proceeding balances
Congress' intent that the discriminatee- miner be made whole, with
Congress' designation of the Secretary as the chief prosecutor in
discrimination cases . Also, it is consistent with the approach followed
by the D.C . Circuit in an analogous context in Donnell v . United States,
682 F . 2d 240 (1982), cert. denied, 459 U.S. 1204 (1983) . Donnell arose
under the Voting Rights Act, 42 U.S.C. § 1973c, and it involved a claim
for attorneys ' fees by private citizens who had intervened in a successful
action brought by the United States against a County Board of Supervisors.
Regarding the fee award issue, the court held :
'

Where Congress has charged a government entity
to enforce a statutory provision, and the entity
successfully does so, an intervenor should be
awarded attorneys' fees only if it contributed
substantially to the success of the litigation.
This inquiry primarily entails determining whether
the governmental litigant adequately represented
the intervenors' interests by diligently defending
the suit. It also entails considering both whether
the intervenors proposed different theories and
arguments for the court's consideration and whether
the work it performed was of important value to
the court .
By providing for attorneys' fees to be awarded
in actions brought to vindicate the civil rights
laws, Congress did not intend to allow private
litigants to ride the back of the Justice Department
t o an easy award of attorneys ' fee s . Obviously,
if an intervenor did nothing but simply show up at
depositions , hear i ngs, and the trial itsel f and
spend lots of time reading the parties' documents,
an award of a-ttorneys' fees would be inappropriate.
The same woul d be true if the intervenors' submissions
and arguments were mostly redundant of the government's
or were otherwise unhelpful .
682 F.2d at 248-49 (emphasis added) . See also Alabama Power Co . v .
Gorsuch, 672 F . 2d 1 (D.C. Cir . 1982); Seattle School Dist. No.1 v.
Washington, 633 F. 2d 1338 (9th Cir, 1980), aff'd, 458 U.S. 457 (1982);
and Johnson v. Georgia Hwy . Express, 488 F.2d 714, 717- 19 (5th Cir .
1974).

2026

Insofar as the present case is concerned, the judge correctly
anticipated the applicability of a Donnell-type standard. Applying
Donnell, the judge stated that he "remained unconvinced that [Rioel's
private counsel's] limited participation in the proceedings before me
contributed in any meaningful way to the adjudication of [Ribel's]
case . " 6 FMSHRC at 2756. The judge noted that Ribel's complaint was
"pursued at all stages before me by HSHA's attorneys" (6 FMSHRC at 2762)
and stated that "it is clear from the record in this matter that {private
counsel) provided no active input at the hearings which I conducted,
asked no questions of witnesses, presented no evidence, did not participate in any cross-examination, and filed no post-hearing briefs or proposed
findings and conclusions." 6 FMSHRC at 2754. Based on his assessment
of private counsel's non-duplicative substantive contribution to the
proceeding before him, the judge denied Ribel attorneys' fees stemming
from private counsel's participation. 6 FMSHRC at 2756. The judge
nevertheless proceeded tu make an alternative finding stating that, if
any attorneys' fees were due, the appropriate amount would be $1,025.
The judge awarded Ribel reimbursement for certain other costs and
expenses incurred following his discharge.
For the reasons that follow we affirm the judge's denial of the
major portion of the claimed attorneys' fees, but find that an award for
a very limited portion of the claimed fees is appropriate. Also, we
vacate the judge's alternative attorneys' fees award and remand for
further limited proceedings.

An attorneys' fees award is a matter that lies within the sound
discretion of the trial judge. Webb v . Board of Education of Dyer
County, 471 U. S .
, 85 L.Ed. 2d 233, 243 (1985)(reviewing court must
evaluate the reasonableness of district court's fee award "with appropriate deference"); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)
(district court has discretion in setting fee award in view of ''superior
understanding of the litigation and the desirability of avoiding frequent
appellate review of what essential ly are factual matters"). Applying
this standard of review, examining the judge's application of the
Donnell standard, and reviewing the entire record, we must uphold the
judge's assessment of private counsel's non-duplicative contribution to
the merits of the proceedings before him.
It is c l ear from the record, incl uding the materials submitted in
support of the attorneys' fee request, that the hulk of the attorneys' fees
claimed were incurred in preparation for a separate state discrimination
claim and other state administrative proceedings. Furthermore, insofar
as Ribel's federal claim under the Mine Act is concerned, the record
demonstrates, as the judge found, that MSEA promptly and fully discharged
its statutory obligation to investigate Ribel's discrimination complaint
and to vigorously prosecute it at all necessary stages, including the
temporary reinstatement proceeding, the proceeding on the merits before
the judge and the appeal to the Commission. At each of these stages the

2027

Secretary appropriately represented Ribel's interests and, in fact,
prevailed. Thus, we conclude that under the standard we adopt for
determining whether private attorneys' fees are awardable to a miner in
a discrimination proceeding brought by the Secretary of Labor, the
judge, with one minor exception, correctly denied an award for the
private attorney fees claimed. Our only disagreement with the judge's
decision is that it fails to take into account that private counsel's
participation resulted in his award of certain costs and expenses to Ribel,
totalling approximately $605.00, that had not been requested as relief by
the Secretary. Thus, to the extent that the claimed private attorneys'
fees were incurred in connection with successfully obtaining this non-duplicative portion of Ribel's claim, a fee award is due. We remand for an
expedited determination of this limited amount. ~/
Regarding the attorney's fees incurred in connection with proceedings initiated by Ribel before the West Virginia Coal Mine Safety
Board of Appeals and the West Virginia Bureau of Unemployment Compensation, the judge found no basis for a fee award inasmuch as those state
proceedings are separate and distinct from any remedy available to a
miner under the Mine Act. 6 FMSHRC at 2756. We agree. As the judge
suggested, Ribel's recourse, if any, is in the state forum in which the
attorneys' fees were incurred.
Finally, we affirm the judge's denial of attorneys' fees for services
rendered by two law professors. The judge noted that it appeared that the
services performed by the law professors were in connection with the state
proceedings discusse'Ci above. The judge added, "In any event~ these individuals are totall y unfamiliar to me, and they entered no appearance and did
not participate on the record in any proceeding before me . " 6 FMSHRC at
2756. Accordingly, given the standard for the awarding of private
attorneys' fees in a Secretary-initiated section 105(c)(2) proceeding
that we set forth earlier, and given the judge's assessment of the
services rendered by the two law professors, we find no abuse of discretion in the judge's decision not to award attorneys' fees.
III. Miscellaneous '
On review Ribel raises two additional points which warrant our
consideration. First, Ribel argues that the judge erred in denying a
c l aim of· $135.92 for mileage and meal costs for the period from August
24, 1983 to November 15, 1983. The judge held that the expenses were
not recoverable under the Mine Act because they were incurred prior to
th~ initiation of the present Commission proceedings • . 6 FMSHRC at 2762.
Ribel also claims that the judge erred in awarding only $35 for telephone
~/

We express the hope that this determination can be made by agreement of the parties thereby avoiding further protraction of the final
resolution of these administrative proceedings. We vacate the judgers
alternative fee award of $1,025 because it apparently was not determined
in accordance with the test set fotth in the judge's decision and adopted
here.

expenses of a total of $53.54 that had been sought. The judge noted
that many of the itemized telephone calls were made "before and after"
the proceedings before the Commission. 6 FMSHRC at 2763. We have
reviewed the record and we find no basis for overturning the judge's
holding as to these matters.
The second point raised by Ribel concerns the tone of the Commission
judge's decision involving the attorneys' fees aspect of the case.
Ribel, through private counsel takes exception to what counsel
characterizes as the judge's "unduly condescending and patronizing tone."
Upon a review of the judge ' s opinion, as well as counsel's response filed
on review, we find no basis to support counsel's assertion and we perceive
no reason to further pursue this matter.
IV.

Conclusion

In sum, we hold that substantial evidence supports the judge's
findings that Mr. Ribel was discharged because of his safety complaints
involving double cutting with the longwall miner and his related discrimination complaint against shift foreman Hawkins, and that his firing
for the phone-sabotage incident was a pretext. Accordingly, the judge's
decision on the merits is affirmed.
Insofar as the remedy aspects of the case at issue before us are
concerned, we reverse the judge and we hold that attorneys' fees for
privately retained counsel may be awarded in a Secretary-initiated
section 10S(c)(2) discrimination proceeding, provided that private
counsel has not duplicated the efforts of the Secretary and further,
that services of private counsel have contributed substantially to the
success of the litigation. As measured against this fee award standard,
we reverse and vacate the judge's alternative attorney's fee a'otard of
$1,025 for services rendered by private counsel, we affirm the judge's
denial of attorneys' fees for services rendered by two law professors,
we affirm the judge's denial of Mr. Ribel's claim of $135.92 for mileage
and meal expenses , as well as the judge's partial award of telephone
expenses, and we remand to the judge for the limited purpose of determining the fee award due in connection with the services performed by
private counsel in obtaining for Ribel an award of certain costs and

2029

expenses. The judge shall afford the parties the opportunity to file
promptly additional pleadings or stipulations in this regard and shall
enter his finding on an expedited basis. !/

L. Clair Nelson. Commissioner

9/
Commissioner Doyle assumed office after this case had been co~
sidered at a Commission decisional meeting and took no part in the
decision. A new Commissioner possesses legal authority to participate
in pending cases but such participation is discretionary and is not
required for the Commission to take official action. The other
Commissioners reached agreement on the disposition of the case prior to
Commissioner Doyle's assumption of office, and participation by Co.nmissioner Doyle would therefore not affect the outcome. In the interest of
efficient decision making, Commissioner Doyle elects not to participate
in this case.

2030

Distribution
Anthony J. Polito
Corcoran, Hardesty, Whyte & Polito, P.C.
Suite 210
Two Chatham Center
Pittsburgh, PA 15219
Sally S. Rock
Associate General Counsel
Eastern ·Associated Coal Corporation
One PPG Place
Pittsburgh, PA 15222
Vicki Shteir-Dunn
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA
22203
Barbara Fleischauer
258 UcGara Street
~1organtown, West Virginia

26505

Administrative Law Judge George Koutras
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike - lOth Floor
Falls Church, Virginia
22041

2031

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COM'MISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W . COLFAX AVENUE, SUITE 400
DENVER. COLORADO 80704

UNITED MINE WORKERS OF
AMERICA (UMWA) I
ON BEHALF OF
EUGENE RONCHETTO,
GARY GENE RONCHETTO,
RANDALL T. McQUAY,
Complainants

OEC 2 1985

DISCRIMINATION PROCEEDINGS
Docket No. CENT 85-111-D
MADI CD 85-6
Docket No. CENT 85-112-D
MADI CD 85-7

v.

Docket No. CENT 85-113-D
MADI CD 85-8

ASSOCIATED ELECTRIC COOPERATIVE,
INC.,
Respondent

Prairie Hill Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Morris

These are consolidated discrimination proceedings initiated by
complainants in accordance with the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq.
Prior to a hearing the parties reached an amicable settlement
and they have now filed a written agreement herein.
The agreement provides that it is contingent upon the settlement
of all proceedings, including the civil penalty proceeding docketed
as Associated Electric Cooperative , Inc. (AECI), Docket No. CENT 85-66.
In addition, i ·t appears that the proposed settlement is satisfactory to the individual complainants.
In con sideration of the proposed settlement respondent agrees to
refrain from directing any rear lug "band-aid" welding. on any dragline
while it is in operation.
Discussion
I have reviewed the proposed settlement and I find that it is
reasonable and it should be approved.
The judge further finds that his decision approving a settlement
in Associated Electric Cooperative, Inc. (AECI), Docket No. CENT 85-66,
was issued November 19, 1985.

2032

Accordingly, I enter the following:
ORDER
1.

The settlement agreement is approved.

2.

The discrimination proceedings are dismissed .

...
Law Judge

Distribution:
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th Street,
N.W . , Washington, D.C. 20005
(Certified Mail)
Craig S. Johnson, Esq., Stockard, Andereck, Hauck, Sharp and Evans,
101 West McCarty Street, P.O. Box 1280, Jefferson City, Missouri 65102
(Certified Mail)

/ot

2033

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

December 3 , 198 5

BARNES AND TUCKER COMPANY,
Contestant

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

CONTEST PROCEEDING

.
.

Docket No. PENN 85-83-R
Order No. 2255533; 12/12/84
Lancashire No. 24-B Mine

DECISION
Appearances:

Before:

Michael T. Heenan, Esq., Smith, Heenan &
Althen, Washington, D.C., for Contestant;
David Bush, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia,
Pennsylvania, for Respondent.

Judge Melick

This case is before me upon the application for review
filed by the Barnes and Tucker Company CB & T) under section
107 of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et seg., the "Act," to challenge the issuance by
the Secretary of Labor of an imminent danger withdrawal order
on December 12, 1984. The general issue before me is whether
the conditions existing at the time the withdrawal order was
issued constituted an "imminent danger" within the meaning of
section 3(j) of the Act. "Imminent danger" is there defined
as "the existence of any condition or practice in a coal or
other mine which could reasonably be expected to cause death
or serious physical harm before such condition or practice
can be abated."
The order at bar (Order No. 225533) issued pursuant to
section 107(a) of the Act,l reads as follows:
lsection 107(a) of the Act provides that "[i]f, upon any
inspection or investigation of a coal or other mine which is
subject to the Act, an authorized representative of the
Secretary finds that an imminent danger exists, such representative shall determine the extent of the area of such
mine throughout which the danger exists, and issue an order
requiring the operator of such mine to cause all persons,
except those referred to in section 104(c), to be withdrawn
from, and to be prohibited from entering, such area until an
authorized representative of the Secretary determines that
such imminent danger and the conditions or practices which
caused such imminent danger no longer exist."

2034

A hazardous condition exists on the automatic
elevator at the · main portal of this mine. There
are two 1/2 inch suspension wire ropes out of
their respective grooves in the shieve [sic]
wheel above the counterweight for this automatic
elevator. It is reasonable to assume that with
these ropes out of grooves, they could be tangled
and cause the car to come to abrupt stop which
would cause persons in this car to strike the
sides or bottom of the car causing them serious
injuries.
During the course of a special electrical inspection on
December 12, 1984, Inspector Leroy Niehenke of the Federal
Mine Safety and Health Administration (MSHA) found conditions
on the main portal elevator to be an "imminent danger".
Niehenke and MSHA Inspector William Davis were performing
their inspection on the roof of the elevator at about the 30
to 40 foot level when Niehenke observed that the· elevator
ropes were changing positions.
Upon closer examination only 2 feet from the ropes he
found that two of the six ropes were out of their corresponding grooves on the sheave wheel above the counterweight
and were riding on the flange. In addition he found that one
of the ropes had crossed over and overlapped another rope on
the sheave wheel. The grooves are designed to keep the .
elevator ropes in proper alignment on the sheave wheel. They
are ordinarily separated by an inch but according to Niehenke
the ropes riding on the flange were 3 to 4 inches from the
other ropes.
Niehenke observed that if the elevator had continued to
operate with the ropes out of alignment as described, the
ropes could have become lodged between the sheave wheel and
its guard. They could then have become entangled and/or
severed. In either case the elevator car could come to an
abrupt halt thereby seriously injuring passengers inside or
inspectors riding outside on the roof. If one or more ropes
became severed it is not disputed that they were of sufficient weight to also cause serious injuries to anyone
riding on top of the elevator who might be performing inspections. Severed ropes would also be expected to twist
violently and could knock persons off the elevator into the
shaft. Un~er these circumstances Niehenke believed an
imminent danger withdrawal order was warranted. Accordingly
the elevator was brought to the top, evacuated and closed
down.
Inspector Davis was riding on top of the elevator with
Niehenke. He also saw that two of the ropes were overlapped

2035

and riding out of their respective grooves on the flange of
the sheave wheel. Contemporaneous notes taken by both inspectors indicate that the ropes appeared to be overlapped.
MSHA electrical engineer and elevator inspector Ronald
Gossard thereupon expressed an opinion of the danger
presented by the conditions described by Inspectors Niehenke
and Davis. Gossard opined that if the elevator continued to
operate under these conditions, the two ropes would be
expected to further migrate off the sheave wheel toward the
wheel housing. Eventually the ropes would move into the gap
between the wheel and its housing and scrape the ropes if not
immediately lock up the wheel. According to Gossard, the
continued rubbing and scraping over a period of time would
reduce the rope diameter and weaken it to the point where the
rope would sever. Upon severance the rope could tangle in
the other ropes or in the sheave wheel thereby halting the
elevator abruptly. Gossard also opined that should even one
rope become severed, the counterweight, which ordinarily
passes within 6 inches of the elevator, could strike the
elevator with serious effect. He observed that the counterweight weighs approximately 1 ton and would be approaching
the car at a speed of 6 to 8 feet per minute.
B & T maintains, on the other hand, that although the
No. 5 and No. 6 ropes were admittedly not in their proper
grooves when the elevator was later examined by a repairman
none of the ropes were overlapped. B & T contends that under
these conditions no imminent danger could have existed. It
maintains that, at worst, the No. 6 rope which was out of its
groove and riding on the flange of the sheave wheel would
wear flat and the rope strands would eventually begin
breaking. The entire rope would break, according to this
scenario, only after a period of at least 6 months. B & T
argues that these deficiencies would be discovered by the
inspection process well before any danger existed.
Robert Singer, an experienced repairman for the Otis
Elevator Company (0tis) 8 examined the elevator ropes later on
the same day the order was issued. He found that rope No. 5
was in the groove for rope No. 6 and that rope No. 6 was
riding on the flange of the sheave wheel but none of the
ropes was overlapped. He realigned the ropes in a few
minutes with a screw driver and adjusted the "keeper" by
moving it about 1/16 inch closer to the sheave wheel.
According to Singer the No. 6 rope would have eventually worn
flat, the strands in the rope would begin breaking and only
after a minimum of 6 months would the entire rope possibly
break. He did not believe that the ropes would have continued to move toward the outside of the sheave flange
because of the steep slope of the flange. Singer found no
immediate danger but agreed that under the circumstances he
would have shut the elevator down, just as Inspector Niehenke
did. It is noted that Singer's employer, Otis, had at the

2036

time the withdrawal order was issued, and continues to have,
a maintenance contract with B & T which includes a weekly
examination of the cited elevator.
George Anderson, an experienced service attendant for
the Schindler Elevator Corporation (Schindler) examined the
subject ropes ·in April 1985, some 4 months after the order
had been lifted. Schindler too had a continuing service
contract with B & T. Anderson opined that the ropes had not
overlapped. He based this opinion on his observation that
there were no marks on the keeper. Anderson testified that
had the ropes in fact been overlapped major effort would have
been required to uncross them i.e., detaching one of the
ropes from the end fasten point after resting the counterweights on the ground, grounding the elevator car to get
slack then backing off and removing the keepers. Anderson
concluded that in any event there was no possibility of
physical injury even if the ropes had been crossed.
James Anderson, a self-employed mine elevator consultant, also examined the subject elevator about 4 months
after the order had been lifted. He opined that so long as
the ropes did not come off the sheave itself there was no
danger what·soever. He thought that in any event the ropes
would be inspected and the defect discovered before anything
happened. He agreed however that if he had found the cables
overlapped he too would have stopped the elevator and
corrected the condition.
Recalled as a witness by the court, MSHA electrical
engineer Ronald Gossard explained how the ropes could have
been overlapped when seen by Niehenke and Davis and not been
overlapped when later seen by Robert Singer. According to
Gossard a rock or piece of concrete could have falled onto
the sheave wheel and caused the No. 6 rope to jump over .the
No. 5 rope. The ropes would then have been crossed in two
locations one of which was not seen by the inspectors. As
the elevator was raised after the inspection the ropes could
have then uncrossed explaining why Singer later found them in
that condition. This explanation of the apparent inconsistency in testimony is unchallenged. For this additional
reason I accept the testimony of Inspectors Niehenke and
Davis as a credible description of conditions existing at the
time the order was issued.
In assessing whether these conditions constituted an
"imminent danger" I am particularly pursuaded by the disinterested testimony of Gossard. This expert testimony
amplifies and fully corroborates the testimony of Inspector
Niehenke and clearly establishes that the conditions found by
Niehenke could reasonably have been expected to cause death
or serious physical harm before the conditions could have
been abated. Accordingly an .. imminent danger" then existed
and the order at bar was properly issued.

Even assuming, arguendo, that the ropes had not been
crossed I would nevertheless find that an "imminent danger"
had existed. In this regard Mr. Gossard was asked to assume
that none of the ropes were overlapped and that conditions
existed _as depicted in the diagrams and photographs in
evidence as Exhibits A-5, A-6, A-7. On these assumptions he
opined that the No. 6 rope would become stretched over a
relatively short period of time because it would be absorbing
greater weight. In turn, because of the stretched condition,
the No. 6 rope could then cross over the No. 5 rope and
produce the same dangerous conditions previously described.
Indeed one of the mine operato~'s experts, service repairman
Robert Singer, opined that even if the ropes had not overlapped, the No. 6 rope wou:bd -·eventually have worn flat, the
strands would have broken and the rope would have failed.
Under the circumstances the subject or
and these proceedings dismissed.

Distribution:
Michael T. Heenan, Esq., Smith,
1110 Vermont Avenue, N.W. Washing
Mail)
David Bush, Esq., Office of the Solicitor, u.s. Department of
Labor, 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
rbg

2038

FEDDAL IIINE SAFETY AND HEALTH RDIEW COMMISSION
OFFICE OF ADMWIIS1RA11VE lAW JUDGES
2 SKY'l.INE. lotb R.OOR
5203 l&S8U1lG PIICE
FAIJ.S CltURCit. VIRGINIA 22041

.:• CIVIL PBNA.Lft PROCEEDING

SBCRB'rARY OF LABOR.
MIBB SAPJrrY ABD IIBAL'!'II

Petitioner

:
:

WB:rr£ OAlt COAL COMPANY •
Respondent

•
:
:
:

ADllllliSftM.'IOB (MSBA) •

v.

..

Docket No. VA 85-21
A.C. No. tt-GS385-0l522
Mo. l Kine

DBC:ISION
Appearances:

Jladt R .. Malecki. Esq. • Office of the
Solicitor. u .. s.. Departaent of Labor.,
Arlington. Virginia. for the Petitioner.

Before:

Jndge Jtoutras

Stateaent of the case
This is a civil penalty proceeding filed by tbe petitioner against the respondent pursuant to section llOta) of
the Federal Mine safety and llealtb Act of 1.977, 30 u .. s .. c ..
§ 820(a)~ Petitioner seeks a civil penalty assess.eot in the
aaount of $500 for an alleged violation of mandatory safety
standard 30 C.P.R. § 75.200. as s~ated in a section 104(d)(l)
Citation No.. 2153645. served on the respondent by 1ISBA Inspector Larry Coeburn on De<:ellber 6 • 1984. ~be condition or
practice cited is as follows:
The approved roof-control. '.p lan was .not
being co.plied with on the. 001 active working
section in that the fol.l oving condi tioos
existed:
tl) 'rbe No. 2 and Bo .. 3 entries were
driven fr<a 22 to 2-t feet wide begi~ing at
the . inby corner of the .last open crosscots and
extending ia.by for 25 feet in the No. 2 entry
and 30 feet in the No. 3 entry.

2039

(2) The No. 5 entry was mined from 22 to
23 feet wide beginning at the inby end of the
last connecting crosscut inby for 30 feet.
(3) Roof bolts were installed to within
5 to 6 feet of the left coal rib in the No. 5
entry beginning at the inby corner of the last
connecting crosscut extending inby for
20 feet.
(4) Reflectorized warning devices were
not installed on the last row of permanent
roof supports in the Nos. 1, 2, 3, 4, 5, 6, &
7 entries as required by the approved plan.
The approved plan stipulates entry widths
shall not exceed 20 feet and roof bolts will
be 4 feet from face and ribs.
The respondent filed a timely notice of contest and
requested a hearing. Pursuant to notice served on the parties, a hearing was convened on October 3, 1985, in Duffield,
Virginia . The petitioner appeared, but neither the respondent
or his counsel entered an appearance. Under the circumstances, the hearing proceeded without them and the respondent
was subsequently held in default.
Issue
The issue presented in this case is whether or not the
respondent has violated the cited mandatory safety standard,
and if so , the appropriate civil penalty that should be ·
imposed for the violation. The matter concerning the respondent's failure to appear at the hearing and its default in
this case is discussed in the course of the decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety ~~d ~ Health Act of 1977,
Pub. L. 95-164, 30 u.s. c. § 801 et seg.
2.

Section llO<i> of the 1977 Act, 30 u.s.c.

3.

Commission Rules, 29 C.F.R.

§

§

820(i) .

2700.1 et seg.

Petitioner's Testimony and Evidence
The following petitioner exhibits were offered and
received in evidence in this case:

1. A copy of respondent's MSHA approved
roof-control plan <P-1).
2. A copy of the citation and termination issued by the inspector, including a
"citation review" form signed by the inspector
and his supervisor <P-2).
3. A copy of the inspector's notes
regarding the cited conditions or practices
(P-3).
4. A copy of the petitioner's prehearing
Request for Admissions, and the respondent's
responses thereto CP-4) .
5. An MSHA computer print-out reflecting
the respondent's compliance record for the
period December 6, 1982 through December 5,
1984 CP-5).
6. An MSHA "Proposed Assessment Data
Sheet" summarizing the respondent's compliance
record, including information concerning the
respondent's operation of the No . 3 Mine
CP-6) •

7. A sketch of the 001 active working
section depicting the locations where the
alleged roof conditions existed at the time of
Inspector Coeburn's inspection (P-7).
MSHA Inspector Larry Coeburn testified as to his experience and background, and he confirmed that he inspected the
mine on December 6, 1984, and that he issued the citation in
question. He confirmed that he is a member of MSHA's
District No. 5 roof fall accident investigation team, that he
is familiar with the respondent's roof-control plan, and that
his duties as an inspector include the review and evaluation
of mine roof-control plans submitted to MSHA for approval.
He confirmed that his inspection on December 6, was a regular
mine inspection, and he stated that he had previously
inspected the mine five or six times.
Mr. Coeburn testified that the mine is in the "Upper
Banner Coal Seam," and he stated that the coal seam height in
the mine ranges from 36 to 40 inches, and that the mine .roof
consists of shale which ranges from · 3 to 24 inches in thickness. He described the overall roof conditions as laminated

2041

shale with slips and breaks. He confirmed that he reviewed
the applicable mine roof control provisions prior to his
inspection. He described the roof conditions ~hich he
observed as stated on the face of his citation, and explained
why he issued the citation. He referred to a sketch of the
active working where the cited roof conditions were observed,
and he confirmed that the sketch accurately portrays what he
observed (exhibit P-7).
Mr. Coeburn stated that he visually observed the wide
places in the entries which he cited, and he stated that he
confirmed his visual observations by measuring the distances
noted with a tape. He also confirmed that he measured the
distance of the placement of the roof bolts to support his
observations that the'y were not within the required 4-foot
distances from the rib, and he observed no supplemental roof
support installed in the cited wide entries.
Mr. Coeburn stated that the cited wide entries and lack
of adequate roof support were readily observable, and he
believed that a trained foreman should have d~tected the violative conditions during his required preshift and onshift
inspections. The extent of the mining cycle at the time of
his inspections led him to conclude that the conditions
existed for not less than 2 days. In his opinion, the cited
roof conditions and excessive wide entries presented a roof
fall hazard, and he believed that it was "reasonably and
highly likely" that an unintentional roof fall would have
occurred had he not acted to cite the conditions.
Mr. Coeburn explained that in his experience, most roof
falls in the mines occur at intersections where entries are
driven wide, and by doing this, an operator removes more roof
materials than are necessary to drive an entry, and that the
removal of this material necessarily takes away the natural
roof support. He explained that the approved roof-control
plan which requires that an entry shall be driven 20 feet
wide takes into account the roof conditions for the mine, and
when the entry is driven for widths in excess of the 20-foot
requirement, roof support is also taken away. In the instant
case, the lack of additional support in the wide areas, the
excessive distances for roof bolt placement, and the fact
that the coal is mined by undercutting and blasting, all contributed to the likelihood of a roof fall.
Mr. Coeburn confirmed that he found no roof reflectors
in place at the cited locations, and he indicated that such
reflectors are required by the roof-control plan. He .
explained that the reflectors are used as warning devices to

2042

put miners on notice that the areas beyond the reflectors are
not permanently supported. The failure to install such
devices could result in a miner walking into an area which is
not supported, thereby exposing him to a hazard. He
described these areas as places where a miner would normally
be at any time during his working shift, and he believed that
it was very likely that a miner would walk into these areas
if the reflectors were not in place to warn him.
Mr. Coeburn identified the applicable roof-control plan
(exhibit P-1>, and he stated that the applicable provisions
concerning wide entries appear at page 4, paragraph Q, the
applicable provisions concerning reflectors appear at page S,
paragraph 3(a), and the applicable roof bolt spacing requirements appear at page l4, sketch No. 3. He confirmed that
respondent's representative Benny Owens, who accompanied him
during the inspection, offered no excuses for the cited
· conditions.
With regard to the existence of "duck's nests," or indentations in the rib which may be caused by erratic cutting
methods, Mr. Coeburn stated that the entries he measured were
deliberately mined at the widths which he measured and noted
in his citation, and that they were not caused by "duck's
nests."
Mr. Coeburn stated that one or two miners would be present in the normal course of mining at each of the locations
cited, and that in the event of a roof fall, one could except
a fatality to result. Since the areas cited are considered
to be "low coal" areas, any miners in the area would be
slouched or on their knees, and this would contribute to the
hazard since they would be slowed down in any attempts to
escape a roof fall.
Ewing c. Rines, confirmed that he is an MSHA supervisory
inspector, and he testified as to his background and experience. Although he did not inspect the mine on December 6, he
has been in the mine on three occasions for the year prior to
this time, and he was familiar wjth the citation issued by
Inspector Coeburn.
Mr. Rines testified that by driving an entry wider than
permitted by the roof-control plan, part of the main roof
support is removed, thereby weakening the roof. He pointed
out that approved roof-control plans are only the minimum
requirements, and that the likelihood of a roof fall
increases as the entries are driven wider than the minimum
widths required by the plan. He confirmed that numerous roof

2043

fall investigations which be has conducted reflect that falls
begin at intersections which have already been vealtened by
tbe removal of materials to facilitate the construction of
the entries ..
Mr. Rines described the Upper Banner seaa as a seaa of
coal cc:.posed of a l.aainated. roof strata vhi::h contains aany
•slip planes.• ~bese conditions have been taken into consideration in requiring the entries to be driven 20 feet vide,
and driving thea any wider s~ly increases the probability
of an unintentional roof fall.. Since blasting is going on
all the tiae, this contributes to a real potential for a roof
fall in those Iaine areas where the entries are driven wider
than required by the roof-control pl.an. In view of the fact
that miners were working in the areas where the entries were
driven vide, Mr .. Rines agreed with :Inspector Coeburn's assessllellt of the hazards presented, and he agreed that a pea~a
aently disabling injury or fatality would result f n . a roof
fall.

Pindings and Conclusions
4file respondent adlli ts that i t is the owner and operator
of the subject aine, and that the operations of the aine are

subject to the Act (Adaission Nos .. 1 and 2 filed August 14,
1.985).
~he respondent denied that ::r have jurisdiction to hear
and decide this case. Absent any support for this conclusion, I conclude that I do have jurisdiction to hear and
decide this case, and the .r espondent • s u.nsupported conclusion
to the eontrary is rejected ..

The respondent adaits that a true copy of Citation
No. 2153645 was served on the respondent or its agent as
required by the Act. Respondent al.so adllitted to the autheaticity of a copy of the citation served on it by tbe petitioner (Adllissions No.. 5 and Mo .. 7) ..

Fact o£ Viol.ation
Respondent • s response to ay show-cause order l:S
R&l'ECftiD. and I: conc.lude and :find that tbe .respondent has
fail.ed to establish any valid .reasons for its failure to
appear at the scheduled heariGg in this case. Accordingly,
pursuant t.o OcT issioa Rules 29 C.P.. a. § 2700.6l(a) and (b),
I: find that the respondent is in de£aul.t and has waived all
.further rights to be heard on the civil penalty .atter before
me for adjudication.. I: have decided this case on t.he basis

2044

of the evidence and testimony adduced by the petitioner in
support of the violation in question.
After consideration of the unrebutted testimony of the
witnesses presented by the petitioner during the hearing, as
well as the evidence and arguments advanced by the petitioner
in support of its case, I conclude and ~ find that the petitioner has established a violation of mandatory safety standard 30 C.F.R. § 75.200, as stated in the section 104(d)(l)
Citation No. 2153645, issued by Inspector Coeburn on
December 6, 1984. The evidence adduced by the petitioner
establishes that the respondent failed to follow its approved
roof-control plan by (1) driving the entries wider than permitted by the plan, <2> by installing roof bolts wider than
the 4-foot spacing permitted under the plan, and (3) failing
to install roof reflectors as required by the plan. A violation of the roof plan provisions constitutes a violation of
30 C.F.R. § 75.200. Accordingly, the citation IS AFFIRMED.
Size of Business and Effect of Civil Penalty on the
Respondent's Ability to Continue in Business
The respondent admits that petitioner's proposed civil
penalty of $500 will not affect its ability to continue in
business <Admission No. 6).
The respondent admits that the size of its company is
under 100,000 tons of coal production per year, and that the
size of the mine subject to this proceeding is between 50,000
and 100,000 tons of coal production (Admission No. 14).
I conclude that the respondent is a small operator and
that the payment of the civil penalty assessment for the violation in question will not adversely affect its ability to
continue in business.
History of Prior Violations
The respondent admits that the history of compliance as
reflected in petitioner's computer print-out for the 2-year
period prior to the December 6, 1984, citation is accurate
{Admission No. 13).
The computer print-out reflects that the respondent has
paid civil penalty assessments in the amount of $1,245 for 32
of the 36 violations at the mine during the period
December 6, 1982 through December 5, 1984. Three of these
prior assessments are for violations of section 75.200, but I
note that two were assessed as "single penalty'' violations

2045

for which the respondent paid a total of $40 in penalties.
The remaining citation was assessed at $63, and it was paid.
I also note that with the exc·e ption of the section 104(d) (1)
citation which was issued in this case, respondent's history
of compliance as reflected in the print-out consists entirely
of section 104(a) citations, most of which are "single
penalty" $20 violations .
In view of the foregoing, I cannot conclude that the
respondent's compliance record is such as to warrant any additional increases in the civil penalty which I have assessed
for the violation in question.
Good Faith Compliance
Inspector Coeburn confirmed that he returned to the mine
the day after the inspection to ascertain whether abatement
had been achieved. He found that the respondent had
installed a double row of roof support posts in the affected
entries which were driven wide, and that additional permanent
roof support was installed in the entries where the bolts
were more than 4 feet from the rib. Mr. Coeburn also confirmed that the required reflectors had to be obtained from
other areas in the mine, and that they were installed at the
locations noted in his citation. He also confirmed that he
discussed the roof control requirements with the miners, and
he was satisfied that the respondent exercised good faith
compliance in abating the violation.
Under the circumstances, I conclude that the respondent
abated the cited violation in good faith and that compliance
was achieved within the time fixed by the inspector.
Negligence
Inspector Coeburn testified that ~ the roof conditions in
question were readily observable and that based on the mining
conditions which he observed, he believed the conditions had
existed for no less than 2 days. He also believed that the
conditions should have been detected by a trained foreman
during the preshift and onshift inspections. Under the circumstances, I conclude and find that the respondent knew or
should have known of the violative conditions and that its
failure to correct the conditions which resulted in the violation constitutes a high degree of negligence on its part. I
have taken this into account in the civil penalty assessed
for the violation .

2046

Gravity
Tbe testU.Ony of Inspector Coeburn supports a conclusion
that the eited roof conditions and vide entries presented a
potential roof fall hazard for the ainers who would be travelling or working in the areas in question. With regard to the
lack of reflectors, Mr.. Coeburn • s testiaony also indicated
that ainers would 810re than likely vallt by the areas vbere
there vere no reflectors., thereby exposing thea to a hazard
of being under unsupported roof. onder the circmastances, l:
conclude and find that the violation in question was very
serious and I: have taken this into account in the civil penalty assessed for the violation..
Significant and SUbstantial
Inspector Coeburn testified that the excessive vide
entries, coupled with the roof conditions vbicb be observed,
presented a reasonable likelihood of a roof fall vbicb would
have inflicted injuries to the lliners working in tbe affected
areas of the •ine. Ullcler the circuastances, l: conclude and
find that Mr .. Coeburn's •significant and substantial• finding
is ful.ly supported by the record. and rf IS APPI:RIIBD.
Respondent • s Pailure to Appear at the Bearing
Tbis . case was originally scheduled for bearing in
Pikeville, ltentucky, on Septe8ber 12, 1.985. -robe notice of
bearing vas issued on JUly 10, 1.985, and vas served on the
respondent on JUly -15, 1985.. In view of certain outstanding
discovery atatters, and at the specific request of the parties, the hearing vas continued to October l , 1985, and the
bearing site was changed to Big Stone Gap, Virginia. I subsequently dete.nained that Duffield, Virginia, would be a convenient bearing site for the parties, and an a.endecl notice of
hearing vas issued on Septe11ber 24, 1985, and vas served oo
respondent" s counsel on Septellber 28.. 1.985.
By l.etter dated SeptewbP-r 3, 1985, aine operator Jerry C.
Deel requested tbat r consider •a settl~nt of $150 on the
Be also advised that • it woul.d be further daaaging
financially for me to have to miss work and co.e to court on
Thursday, Septe.ber 12, 1985 .. • Copies of the letter was
forwarded by rae to counsel for the parties on Septa~ber 10,
1985, and respondent's counsel received it on SepteRiber 14,
1985. Counsel were advised to infora ae of any settle.ent
proposal as required by ay original notice of bearing issued

raatter. •

on July 10, 1985. Since no further information was forthcoming from the parties regarding any firm settlement proposal,
the matter proceeded to hearing as scheduled.
On the morning of the hearing, Thursday, October 3, 1985,
petitioner's counsel advised me that respondent's counsel
McAfee informed him that morning that Mr. Deel, the mine operator, could not afford the time to be away from the mine and
that he would not appear at the hearing. Petitioner's counsel
also advised me that counsel McAfee stated that the respondent
was willing to pay the full amount of the civil penalty
assessed in this case, but that since Mr. Deel would not
appear, he (McAfee) saw no reason for his appearance on behalf
of his client. According to petitioner's counsel, Mr. McAfee
requested him to inform me that the respondent was willing to
pay the assessed penalty. Petitioner's counsel informed me
that Inspector Coeburn advised him that mine operator Deel
usually works outside the mine and the inspector knew of no
reason why Mr. Oeel could not be present at the hearing (Tr.
5).

At approximately 9:40 a.m. , on Thursday, October 3,
1985, I placed a telephone call to counsel McAfee's office in
Nortont Virginia. The person who answered the phone informed
me that Mr. McAfee was out of the office and when I inquired
as to his whereabouts, she informed me that his schedule .indicated that he "had a hearing scheduled for 9:30 a.m." I then
requested to speak to Mr. McAfee's secretary. I informed her
that I was awaiting Mr. McAfee's appearance at the hearing,
and she informed me that he was not in the office and that
she would try t o locate him at his home. She asked me to
hold, and apparently placed a call to his residence. She
then informed me that Mr . McAfee was not at home and asked
for a telephone number where I could be reached. I advised
her that I was at the Ramada Inn in Duffield, Virginia, and
informed her that I would convene the hearing and proceed
without Mr. McAfee. I also requested her to inform Mr. McAfee
of this fact and to also inform him that I intended to default
the respondent and would hold Mr. McAfee personally accountable for failing to appear at th.e hearing or to notify me that
he would not appear. His secretary indicated that she would
give him the message .
On October 4, 1985 I issued an Order to Show Cause to
the respondent's counsel requiring him to show cause as to
why the respondent should not be defaulted for its failure to
appear at the scheduled hearing, and why counsel for the

2048

respondent should not be referred to the Commission for possible disciplinary action pursuant to Commission Rule 29 C.P.R.
§ 2700.80, because of counsel's failure to appear pursuant to
notice and for counsel's failure to advise me that he would
not appear.
By letter and enclosure filed with me on October 17,
1985, counsel McAfee filed a response to my show-cause order.
In a separate letter dated October 11, 1985, and received by
me on October 17, 1985, counsel McAfee requested that I
inform him of "what disciplinary rule I have violated in your
opinion so that I might further respond to your allegation in
the Order to Show Cause."
By letter dated October 17, 1985, I advised counsel
McAfee of the basis for my possible disciplinary referral,
furnished him with a copy of the Commission's decision in
Disciplinary Proceeding Docket D-84-1, a case involving a
similar referral by me, 7 FMSHRC 623, and afforded him an
additional 10 days within which to respond further if he so
desired.
In his initial response filed October 17, 1985, counsel
McAfee states as follows at paragraph 3:
On October 3, 1985, at approximately
7:30a.m., counsel for Respondent received a
telephone call from the Respondent advising
him that they would accept the proposed penalties in lieu of lengthy litigation. At that
time, counsel for Respondent did not have the
file which reflected who the administrative
law judge was and only knew that counsel for
Petitioner was staying at the Ramada Inn in
Duffield, Virginia. Counsel for Respondent
attempted to contact counsel for Petitioner
and after several attempts, he was located in
the dining room of the Ramada Inn . At that
time, counsel for Respondent advised counsel
for Petitioner of the Respondent's decision to
accept the proposed penalties and requested
counsel for Petitioner to notify the administrative law judge of that fact. (Emphasis
added).
For the reasons which follow, I find counsel McAfee's
statement that on October 3, 1985, the very morning of the
hearing, he did not know who the presiding judge was to be
rather astounding:

2049

1. A second amended notice of h~aring
issued by me on September 24, 1985, advising
the parties of the time and place of the hearing was served on counsel McAfee by certified
mail on September 28, 1985 (certified postal
return receipt in file).
2. A letter from me dated September 10,
1985, addressed to the parties and enclosing a
copy of a letter received from the respondent
was served on counsel McAfee by certified mail
and it was received on September 14, 1985.
(Certified postal return receipt in file).
3. An amended notice of · hearing and
notice of continuance issued by me to the parties on September 3, 1985, was served on
counsel McAfee on September 5, 1985. (Certified postal return receipt in. file). That
notice made reference to a previous telephone
conference with counsel for the parties which
took place on August 30, 1985.
4. Counsel McAfee was a party to the
telephone conference referred to in paragraph 3 above, and the purpose of that conference was to accomodate counsel. Although the
amended hearing notice cited Big Stone Gap,
Virginia, as the hearing location, the second
amended notice specifically advised counsel
that Duffield, Virginia, would be the location
of the hearing, and counsel McAfee does not
suggest that he was confused.
In paragraph 1 of his response, counsel
McAfee makes reference to the telephone conference in question, and he states that it was
11
With an administrative law judge. 11 At the
time of the conference, I assumed that counsel
McAfee knew that I was on the other end of the
telephone and that he and petitioner's counsel
were jointly speaking with me.
5. By letter and enclosure filed with me
on August 14, 1985, counsel McAfee filed
copies of his responses to the petitioner's
request for admissions. Since the letter was
addressed to me, I assume that counsel McAfee

2050

knew that this case was assigned to me for
adjudication.
Counsel McAfee has failed to respond to my letter of
October 17, 1985, affording him an additional 10 days to file
a response to my Show cause Order of October 4, 1985. The
postal service return certified mailing receipt reflects that
the letter was received on October 19, 1985. I assume that
counsel McAfee has opted not to respond further.
In the original notice of hearing served on the parties
on July 10, 1985, I specifically advised the parties that any
proposed settlement should be filed with me no later than
10 days in advance of the commencement of the hearing. The
notice of hearing advised the parties that any settlement
proposals filed later than 10 days prior to the hearing would
be rejected and that the part·ies would be expected to appear
at the scheduled hearing. Although counsel McAfee's appearance in the case occurred on August 12, 1985, when he filed a
response to the petitioner's request for admissions, I assume
that the respondent mine operator Jerry Deel furnished counsel McAfee with a copy of the hearing notice. In any event,
by letter to counsel for the parties dated September 10,
1985, and served on counsel McAfee on September 14, 1985, he
was specifically advised that any settlement proposals were
to be filed with me in accordance with the July 10, 1985,
hearing notice.
In view of the foregoing, I conclude and find that counsel McAfee has failed to advance any acceptable excuse for
his failure to appear at the scheduled hearing. I further
conclude and find that counsel McAfee's unilateral decision
not to appear amounts to a flagrant disregard of a Commission
judge's authority and orders and that such conduct by a
member of the bar practicing before the Commission should not
be condoned. Accordingly, the matter will be referred to the
Commission for consideration of appropriate action pursuant
to 29 C.F . R. § 2700.80.
Civil Penalty · Assessment
On the basis of the foregoing findings and conclusions,
and considering the statutory criteria found in section
llO(i) of the Act, I conclude and find that a civil penalty
assessment of $600 is reasonable and appropriate for the violation which has been affirmed.

2051

Tbe respondent IS ORDERliD to pay a civil penalty in the
a.ount of $600 for a violation of -.ndatory safety standard
30 C.P.R. § 75.200,. as noted in the section 104(d)(l) Citation No. 21536 45 ~ served on the respondent on Deca~ber 6 •
1984. Payaent is t.o be -de to the petitioner vi thin thirty
( 30) days of the date of this decision and order.

In view of counsel '!'btothy w. McAfee • s
failure to appear at the scheduled bearing
pursuant to notice dul.y served on bia,. the
aatter is referred to the Ca.aission pursuant
to Rule 80• 29 C.P.R. § 2700.80. See:
Secretary of Labor v.. co-op MiningCS!ii!paay.
1 PMSBRC 971 (JU1y 1979) (Disciplinary Proceeding No. D-79-2); Ca.aission Disciplinary Proceeding No. D-84-1,. 7 FMSBRC 623 (May 1985) ..

Distribution:
Mark R:. Malecki,. Esq., Office of the Solicitor,. u .. s.
Oepartlllent of Labor t 4015 Wilson Bou1eva.rd.- Rooa l237A..
Arl.inqton ~ VA 22203 (Certified Mail.)
Tiaothy W~ McAfee .. Esq.,. Cl.ine Mc::Afee & Adkins,. Professional
Arts Building,. 1022 Park Avenue,. N.. W.. ,. Norton,. VA 24273-0698
(Certified Maill
Mr. Jerry Deel,. Route 2, Box 54,. Haysi,. VA 2•256 (Certified
Maill

/ fb

2052

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

SECRETARY OF L~BOR,
MINE SAFETY AND HEALTH
ADMINISTR~TION (MSHA),
Petitioner

:

.

v.

DEC 41985

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-104-M
A.C. No. 48-00155-05511
Alchem Trona Mine

ALLIED CHEMICAL CORPORATION,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., and Margaret Miller, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Petitioner;
John A. Snow, Esq., Vancott, Bagley, Cornwall &
McCarthy, Salt Lake City, Utah,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges Allied Chemical Corporation
(Allied) with violating a safety regulation promulgated under the
Federal Mine Safety and Health Act, 30 u.s.c. § 801 et seg., (the
Act> .
After notice to the parties, a hearing on the merits was
held on March 5, 1985 in Salt Lake City, Utah.
Issues
The issues are whether the evidence establishes that an
accident occurred within the meaning of the MSHA regulations. If
such an accident occurred, then the operator was obliged to immediately report the event to MSHA .
Citation 2082864
This citation alleges respondent violated 30 C.F.R. § 50.10,
which provides as follows:
Subpart B - Notification, Investigation, Preservation
of Evidence
§ 50.10
Immediate Notification. If an accident occurs,
an operator shall immediately contact the MSHA District

2053

or Subdistrict Office having j~risdiction over its mine.
If an operator cannot contact the appropriate MSHA District or Subdistrict Office it shall immediately contact
the MSHA Headquarters Office in Washington, D.C., by
telephone, toll free at (202> 783-5582.
The Secretary's regulations further defines the term
"accident" as being ''an injury to an individual at a mine which
has a reasonable potential to cause death", § 50.2(h)C2>.
Stipulation
At the hearing the parties stipulated that Allied, a large
operator, is subject to the Act. Further, the proposed penalty
will not affect the company. Finally, the operator established
its good faith in abating the citation <Tr. 44, 45}.
Summary of the Evidence
William w. Potter, an MSHA mine inspector, received an
anonymous telephone call advising him that a worker had been
electrocuted at Allied. The inspector confirmed this information
the following day (Tr. 10-12). At that time he learned that a
mechanic, William H. Carter, had been shocked while getting on
the top of a miner to do some welding <Tr. 13>. When this
occurred Carter's clothes, boots and gloves were wet from having
washed down the miner. His Lincoln arc welder had an amperage
setting on 300. In the inspector's opinion Carter was shocked by
70 volts of electricity. This occurred when Carter, laying on
his right side over the miner, grabbed the energized portion of
the electrode <Tr. 15-17). Carter could not let go of the
electrode once he had contacted it . A fellow worker took it out
of his hand (Tr . 17).
Carter was hospitalized and observed for approximately 12
hours. While hospitalized his heart beat was monitored and he
received an IV (Tr. 17, 18). Dr. Collins, the treating
physician, advised the inspector that the patient was monitored
for 12 to 18 hours because there was still a potential for death
(Tr. 18).
Eight days before the Carter incident a miner at a different
company had been shocked by an arc welder. In the performance of
his duties Inspector Potter advised Allied, as well as other
companies, that such an accident was immediately reportable to
MSHA (Tr. 19-20).
Terrance D. Dinkel, an electrical engineer for MSHA at the
Technology Center in Denver, was familiar with the effects of
electricity on a body (Tr. 22-24).
Death can be caused by fibrillation of the heart which is
induced by a low current of electricity. In such a case death
might not be instantaneous but the heart can last as long as six

2054

hours. Generally. industry considers that .OS amps can cause
fibrillation of the heart (Tr, 25• 26). Above four amps tbe
heart can be stopped by the muscles seizing tTr. 26. 27). If
there is an. exposure below five amps (50 lllilliamps) a fatality
will not result unless the exposure is over a period of ti.e tTr.
28. 29), A worker can be shocked by momentarily touching 50
milliamps of electricity (Tr. 28. 29). Exposure to ten aillia.ps
can result in a fatality (Tr. 30, 34). An average person's heart
will fibrillate if exposed to 100 to 200 milliamps. Fibrillation
may also result from a shock as low as 50 milliamps (Tr. 120).
A second cause of death can be a bigb current of electrical
shock wbich burns the flesh and body tissues (~r. 25).
In the situation at Allied the flow of the current through
Carter's body would depend on the voltage of the arc welder and
his body's resistance. Tbe amperage on the arc ve1der was 300.
Industry generally accepts a wet body's resistance at 1000 oO.S
('f'r .. 31).

The fact that carter could not let go of the arc welder
indicates he received a shock of 10 mil1iamps (.01 a.ps). Por
such a 1ow electric current to cause death it must pass
through the heart (Tr. 32>- Whether this particular electric
shock would kill Carter depended on the path of the electricity
through his body (Tr. 32. 34. 38-39). If Carter bad been in a
different position on the ~ner the current could have gone
through his heart. But the electricity was aost likely grounded
by the ainer because he vas laying across it (Tr. 35).. If
Carter • s fellow worker bad not released hilll froa the electrode.
death could also have resulted tTr. 36). ~ ailliamps of
e1ectricity can cause death as well. as a locking of the victia•s
muscles (Tr. 36).

After his contact wi tb the electrode was broken the
circoastances still exposed Carter to a reasonable potential for
death. Fibrillation aiqht manifest itself after a nu.ber of
hours err .. 36. 37}.
Inspector Dinkel was aware of five fatalities related to
situations where workers with wet clothes had. been shocked by 70
to SO volts of electricity (Tr. 37r l8~. In these cases
fibrillat~on caused death by cardiac arrest {Tr. 38)~
Respondent's witnesses were William Carter, John Doa.ke.
Randall Dutton and Dr. Gordon Balka ..
Carter generally described and confir.ad the events of the
day he was shocked tTr, 47-65) ~ The only discomfort after being
shocked was a cramped feeling~ like a charley horse in his leg
{Tr- 54). -Be also had a chill. He was removed by ambulance to
the hospital and released the following day (Tr. 58). In tbe
hospital he only received an IV. I:n addition,. his heartbeat vas
monitored for 18 to 20 Hours (Tr. 59~ 65).

John Doake, an electrical engineer, testified the arc welder
had 70 volts. Witness Doake testified how electrical current
affects the body. He further testified as to an accepted formula
t9 calculate the amount of electricity entering a body (Tr.
110-113; Exhibit R4). In his opinion approximately 40 some odd
milliamps of electricity passed through Carter 's body (Tr. 110,
111).
Randall o. Dutton, Allied's superintendent of safety and
loss prevention, didn't believe the injury to Carter had a
reasonable potential to cause death (Tr. 68). The emergency
medical technician advised Dutton that Carter had been shocked
but otherwise appeared to be "Okey" (Tr. 69). Carter was
admitted to the hospital for observations and was released the
following morning (Tr. 69, 70). Allied's procedure is to
transport any workers to the hospital by ambulance (Tr. 70>.
Gordon Lee Balka, M.D., experienced in the hazards of .
electrical shock, indicated that death from shock can be caused
by cardiac arrest due to fibrillation or cardiac standstill; or
by respiratory arrest due to muscle contraction; or by electrical
burns and soft tissue injuries <Tr. 76-79). Kidney failure is
also a potential result of electrical shock (Tr. 79, 84).
Symptoms of arrhythmia or fibrillation would manifest themselves.
Cardiac arrest, due to electrical shock, cannot occur as a
primary event after elecrical shock. As a secondary event it
would be a condition of arrhythmia (Tr. 82). If the condition of
respiratory paralysis occurs it is immediately observable in· 99
percent of all shock victims (Tr. 84).
An electrical shock can cause a burn on the skin.
untrained person could see such a burn (Tr. 84, 85).

An

The hospital records, including the electrocardiogram, blood
check and urinalysis do not indicate that Carter sustained any
adverse health effects (Tr. 88-94; Exhibit R2). Based on the
conditions found after the shock, as evidenced by the hospital
reports, Dr. Balka expressed his opinion that Carter's condition
would not have caused his death <Tr. 93).
In cross examination the witness agreed that there are rare
occurrences of fibrillation or cardiac arrest occurring after the
shock itself <Tr. 92). However, he disagreed with MSHA's witness
Dinkel that fibrillation could occur as late as 6 to 10 hours
after the shock (Tr. 98).
Dr. Balka indicated that Carter's shock was serious. The
treatment that followed, including hospitalization, conforms to
standard medical procedures (Tr. 99).
Discussion
The regulation, § 50.10, requires that the respondent immediately notify MSHA if an accident occurs. Such an accident is
defined as an injury which has a reasonable potential to cause

f)or:-c

.::.

i) )

death§ 50. 2 (h)(2). The issue thus presented is whether the
electric shock to Carter had a reasonable potential to cause his
death.
The evidence relating to the accident itself is uncontroverted . Cart e r ' s clothes, gloves and boots were wet from when he
washed down the miner . While lying on the miner he was shocked
by 10 to 40 some odd milliamps from his arc welder. Had this l ow
current passed through his heart it would have killed him (Tr .
32) . However, the shock went to ground without passing through
his heart .
Thes e f acts establish that Carter was injured and that the
injury had a reasonable potential to cause his death .
It was
merely fortuitous that the electrical shock went to ground without passing through his heart .
Allied correctly recites that the evidence shows that Carter
received an electrical shock which caused chills and that he had
a cramp in his right leg. Further, there was no evidence of
burns or other adverse effects other than temporary muscle
soreness resulting from the shock .
Allied argues from these facts that MSHA ' s view of the
regulations would bring within its ambit ev·e ry accident at t he
mine because any accident could have caused death if the
circumstances were different. Basically Allied states tha t it i s
the injury which must have the potential to cause death, not the
incident causing the injury . Therefore, the operator asserts
that, since there was no medical opinion that Carter's life was
in danger, the regulation was not vio l ated.
Allied ' s initial position lacks merit. Every accident would
not come within the ambit of the regulation because the reguation requires that the potential to cause death must be a
"reasonable " one.§ 50.2(h)(2).
Further , I am not persuaded by Dr . Balka's opinion . It i s
not directed to the pivotal issue of whether the 10 to 40
milliamps coursing through Carter ' s body would have kill ed him if
it passed through his heart . On the contrary, the doctor ' s
opinion focuses on Carter's condition in the hospital . At this
point Carter had already, fortunately , survived the shock .
In short, the evidence of MSHA's witness Dinkel that 10
milliamps passing through Carter's heart would have killed him i s
uncontroverted . This evidence clearly establ ishes the potenti a l
for death.
In evaluating the circumstances here I consider that the
shock to Carter had more than a reasonab l e potential to cause
death. In my view , there was a reasonab l e l i kelihood tha t his
death would result. Simpl y put, he was luck y .

2057

This decision does not turn on Exhibit R4 which outlines the
effect of electrical shock on the average human . The exhibit
supports the theories of both of the parties to this litigation.
The exhibit, as witness Dinkel testified, is a chart of a general
average, which can vary either way (Tr. 118-121).
In support of its position Allied relies on Climax
Molybdenum Company, 2 FMSHRC 1967 (ALJ Morris) and Hecla Mining
Company, 1 FMSHRC 1872 (ALJ Koutras;).
The initial case, decided by the undersigned, is not
controlling . The Secretary's case failed in Climax because he
did not offer any credible evidence that the severe occupational
injury sustained by the employee had a reasonable potential to
cause his death.
In Hecla Commission Judge George Koutras ruled to the same
effect. Namely, MSHA must establish that the injuries sustained
by an accident victim have a reasonable potential to cause death,
1 FMSHRC at 1888. The rulings in the cited cases coincide and
the cases do not support Allied's position.
As noted in this case, the uncontroverted evidence clearly
establishes that Allied violated the regulation in failing to immediately report the accident when there was a reasonable
potential to cause Carter's death.
In short, Allied claims that it did not violate the regulation because Carter survived without serious injury. This is a
correct analysis of the evidence but I find the following
evidence to be credible: if the electrical current had passed
through Carter's heart he would have died; further, Carter could
have died if a fellow worker had not released him from his
contact with the energized electrode (Tr. 33, 39).
The citation should be affirmed.
Civil Penalty
The statutory criteria to assess civil penalties is
contained in Section llO(i) of the Act, now codified at 30 U.S.C.
§ 820 ( i ) .
In considering the criteria, I find that the evidence fails
to establish any adverse history of previous violations.
Respondent is a large ope~ator and the minimal proposed penalty
will not affect the company. Further, I find the company was
negligent. Since this violation is a reporting requirement the
gravity is minimal; however, the gravity of the actual incident
giving rise to the reporting requirement was high. The
operator's statutory good faith is apparent in abating the
violation.

2058

Based on the above criteria, I am unwilling to disturb the
proposed minimal penalty of $20.
Briefs
Counsel for both parties have filed detailed briefs which
have been most helpful in analyzing the record and defining the
issues. I have reviewed and considered these excellent briefs.
However, to the extent they are inconsistent with this decision,
they are rejected.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portions of this decision the following conclusions
of law are entered:
1.

The Commission has jurisdiction to decide this case.

2.

Respondent violated 30 C.F.R. § 50 . 10.

3. Citation No. 2082864 and the proposed penalty therefor
should be affirmed.
ORDER
Based on the foregoing findings of fact and conclusions of
law I enter the following order:
1. Citation 2082864 and the proposed penalty of $20 are
affirmed.
2 . Respondent is ordered to pay the sum of $20 within 40
d ays of the date of this decision.

Law Judge
Distribution :
James H. Barkley, Esq., and Margaret Miller, Esq., Office of the
Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961
Stout Street, Denver, CO 80294 (Certified Mail)
John A. Snow, Esq., VanCott, Bagley, Cornwall &McCarthy, 50 s.
Main Street, Suite 1600, Salt Lake City, UT 84144 (Certified
Mail)
/blc

2059

FEDERAl MINE SAFETY AND HEAlTH REVIEW COMMISSION

ALLIED CBEHICAL CORPORATION,
Contestant

.

..
:
:
..•

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

v.
SECRE!'ARY OF LABOR,
MIRE SAFETY AND HEALTH
ADHDU:STRATION (IISBA) ,

Respondent

DEC 41985

•
..
:

Docket No. WEST 84-1.1.4-RM.
Citation No. 2083069; 6/1.3/84
Docket No.. ~ 84-l.l.S-NI
Citation No. 2083070; 6/1.3/84
Docket No .. WEST 84-1.1.6-RM
Citation No. 2083071.; 6/21./84
Al.chelll Trona Kine

DECISION
Appearances:

John A.. Snow, Esq .. , VanCott, Bagl.ey, Cornval.l •
KcCa.:rthy, Sal.t Lake City, Utah,
for Contes-tant;
Jaaes. H. Barkl.ey, Esq. and Margaret Miller, Esq .. ,
Office of the SOl.icitor, u .. s .. Departaent of Labor,
Denver, Col.orado,
for Respondent.

Before:

Judge MOrris

These are consol.idated contest {':rOCeedings initiated by
contestant against the Secretary of Labor in accordance with the
Federal. Mine Safety and Beal.tb Act of 1.977, 30 u.s .. c.. S 801 ~ ~
(the Act}.
A bearing on these cases and a case invol.ving -the saae parties
coaaenced on March S, 1985, in Sal.t Lake City, Utah. At that tUae
the parties flled a written settleaent agreeaent and a 110tion
seeking approval. there£or.
'l'be agree.ent recites that the contestant did not know of the
de£ects in the equipaent which is the subject of citations nu.bered
2083069, 2083070 and 2083071.. It is further stipulated that the
contestant sboul.d not have known of the defects in view of the
original MSBA certification and approval of the cited equip~Mmt.
Contestant further agrees to pe:rfona and certify continuity
of the groundings system on a weekly basis, if in use, as requested
by MSBA, until an approved ground fault interrupter systea is
available as required by 30 C ..F .. R. .. S 18 .. 47(d)(2) ..

2060

Based on the proposed settlement the Secretary of Labor moves to
vacate his citations and contestant moves to withdraw its applications
for review.
I have reviewed the proposed settlement agreement.
reasonable and it should be approved.

I find it is

Accordingly, I enter the following:
ORDER
1.

The settlement agreement is approved.

2. In WEST 84-114-RM citation 2083069 is vacated and the contest
proceeding is dismissed.
3. In WEST 84-115-RM citation 2083070 is vacated and the contest
proceeding is dismissed.
4. In WEST 84-116-RM citation 2083071 is vacated and the contest
proceeding is dismissed.

Distribution:
John A. Snow, Esq., VanCott, Bagley, Cornwell & McCarthy, 50 South
Main, Suite 1600, P.O. Box 3400, Salt Lake City, Utah 84110-3400
(Certified Mail)
James H. Barkley, Esq. and Margaret Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street,
Denver, Colorado 80294
(Certified Mail)

/ot

2061

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

DEC 51985
LEE ROY FIELDS,

DISCRIMINATION PROCEEDING
Complainant

v.
:
CHANEY CREEK COAL CORPORATION, :
Respondent

Docket No. KENT 86-19-D
MSHA Case No. BARB CD 85-60
No. 5 Mine

DECISION APPROVING SETTLEMENT
AND
ORDER OF DISMISSAL
Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed
on November 12, 1985, by the complainant against the respondent
pursuant to section lOS(c) of the Federal Mine Safety and Health
Act of 1977. The complainant was employed by the respondent as
a section foreman, and he alleged that he was discharged by the
respondent for making safety complaints and for his refusal to "
ride a conveyor belt which he believed was unsafe.
On November 29, 1985, counsel for the parties filed a joint
motion to dismiss the complaint on the ground that the parties
have settled the dispute. The parties state that the complainant
wishes to withdraw his complaint and that he waives his claims
to any attorney's fees. Included with the motion is a settlement
agreement executed by counsel on behalf of the complainant and
the respondent.
...
w

Di scuss·ion
The settlement agreement states in pertinent part as follows:
In return for Fields withdrawal of said complaint and waiver of said claim, Chaney Creek Coal
Corp. hereby agrees to reinstate Fields to a posi-.
tion at either its White Oak (Dollar Branch} mine

2062

mae.

or its Oneida (No .. 2)
beginning on Monday,
.December 2. 1985, at the pay rate of $10 .. 00 per
hour... :If a foreaan • s job is not available on
said date a:t the aine at. which Fields is reinstated,
Chaney Creek further agrees to assign Fields the
next foreman's position t.o coae open at either said
.mine after his reinstatement.
:In addition, Chaney creek shall pay Fields the
sum of $4 • 800, said sum to be paid in three equal
installments of $1.600. '.rhe first payment shall be
made on or before Deceaber 2, 1985; the second payment shall be aade on or before December 31, 1985:
and the tbiril payaent shall be .ade on or before
January 31, 1986.
COncl.usion
After .c::areful consideration o£ the aotion and supporting
settlement agreement, .:I conclude and find that the settleaen.t
disposition is reasonable and in the public interest. Ac:coroingly, the settlement disposition is APPROVED, and the lllOtion
to dismiss ~s GRANTED.
ORDER

In view of the mutua.l.ly agreeable settlement disposition
of this case, the complaint XS D:rsMl:SSED.

IJ.~

~-"outras

.. strative .Law Judge
Dis-tribution:
~ny Oppeqard, Esq., Appalachian Research & Defense .Fund o£
Kentucky, .:Inc .. , Post Office Box 36"0, ""Hazard, ttY 41.701
(Certified Mail.)

'!!'m-as w.. Mi.ller, Esq .. , Miller, Griffin & .Marks, 700 Security
TrUst. Building. Lexington, ltY 40507 (Certified Mail)

/fb

~063

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

December 6, 1985

DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
PAUL Z. SWIGER,
Complainant

Docket No. WEVA 85-18-0
MORG CD-84-5
o•Donnell No. 20 Mine

v.
CONSOLIDATION COAL COMPANY,
Respondent

ORDER OF DISMISSAL
DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

The Solicitor has filed a detailed motion explaining that
pursuant to agreement between the parties, the complainant now
has received all the relief sought in this case.
The Solicitor further has moved for approval of a civil
penalty in the amount of $900 for the violation of section 105(c)
of the Act. The Solicitor further has discussed the proposed
settlement in light of the six statutory criteria set forth in
section 110 of the Act. Based upon my review of the Solicitor's motion I am satisfied that the proposed settlement is
consistent with the purposes and spirit of the statute.
In light of the foregoing the proposed settlement is
APPROVED and the operator is ORDERED TO PAY $900 within 30 days
from the date of this decision. This matter is hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Di s t r i b ut i·o n :

David T. Sush, Esq., Office of the Solicitor, U. S. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 {Certified Mail)
Samuel P. Skeen, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)

/gl

2,064

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

1

December 9, 1985
CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 84-1
A.C. No. 15- 13881- 03510
Docket No . KENT 84- 174
A. C . No. 15-13881- 03525

v.

.

PYRO MINING COMPANY ,
Respondent

Pyro No. 9 Slope
Wi lliam Station

DECISION
Appearances:

Thomas A. Grooms , Esq., Office of the Solicitor,
U. S. Department of Labor , Nashville , Tennessee,
for Petitioner;
William Craft , Manager of Safety , Pyro Mining
Company , Sturgis , Kentucky., for Respondent

Before:

Judge Fauver

The Secretary of Labor brought these actions for civil
penalties under section 105(d) of the Federal Mi ne Safety
and Health Act of 1977, 30 u.s.c. § 891, et ~ Having
cons i dered the hearing evidence and the r ecord as a whole, I
find that a preponderance of the substantial, rel iabl e , and
probative evidence establishes the following:
FINDINGS OF FACT
1 . At all pertinent times, Respondent owned and operated
Pyro No. 9 Slope William Station , an underground coal mine
that produced coal for sales or use in or substantially
affecting interstate commerce.
2. Pyro No . 9 mine has an annual production of about
900 , 000 tons . Respondent is a relatively large operator .
Payment of the penalties assessed herein will not adversely
affect Respondent ' s ability to continue in business .
3. With respect to each of the citations involved, all
issued at Pyro No. 9 mine , Respondent made a good faith
effort\ to achieve rapid abatement of the cited condition
after receiving t~e citation .

2065

Citation 2225770
4. At the hearing the parties proposed settlement of
Citation 2225770 based on full payment of the proposed
penalty of $91 . This settlement is APPROVED .
Citation

2225~68

5. This citation was issued by Federal Mine Inspector
George W. Siria on July 19 , 1983, alleging a violation of 30
C .. F.R . § 75 . 200.
6 . On July 19 , 1983, I nspector Siria observed that
mining timbers had not been installed in eight cross-cuts
adjacent to the supply entry on the No. 5 unit and more than
240 feet outby the tail piece of the belt line.
7.
Pyro's roof control plan , in effect at that time,
required that timbers or cribs be placed in all cross-cuts
adjacent to supply entries to within 240 feet of the belt
tail piece .
8.
falls.

The condition cited constituted a hazard of roof

9. Ten to twelve coal miners were working in the No. 5
Unit . At least three of the miners would be endangered, at
any one time, by the condition which the inspector observed
and cited.
10 . From the placement of the tail piece and the
nature of this violation, it is apparent that the section
foreman or some other member of Pyre's management knew or
should have known of this hazard.
11 . In a two- year period immediately preceding this
citation, Respondent had 33 violations of § 75 . 200, with
nine prior violations occurring at Pyro #9 Slope William
Station.
Citation No . 2074898
12. This citation was issued by Federal Mine Inspector
Robert G. Smith on July 28, 1983, alleging a violation of 30
C. F . R. § 70.100(a).
13 . Inspector Smith was unable to attend and testify
at the hearing because he was on an extended period of sick
leave. Mr . Charles Dukes, Mr. Smith's immediate supervisor
and the Supervisory Safety and Health Specialist for District
10 of MSHA , testified concerning the issuance of this citation .

2066

14. Inspector Smith issued Citation No. 2074898 because
he found that the average concentration of respirable dust
from samples he took on the No. 3 Unit mechanized mining
unit was 3.7 milligrams per cubic meter of air (mg/m3).
15. These samples were taken by Inspector Smith using
approved sampling devices and yielded results upon which
Inspector Smith based his determination to issue the citation.
16. An average concentration of respirable dust above
the prescribed standard of 2.0 mg/m3 represents a serious
threat to the health of underground coal miners. It should
also be noted that the 3.7 mg/m3 measured by the inspector
was an average. Secretary ' s Exhibit G- 9 shows that the
measured concentrations for two of the individual miners
working on the mechanized mining unit were higher: the
cutter operator's reading was 5.3 and the loader operator's
reading was 8.4 .
17. In the two- year period before this citation,
Respondent had li prior violations of § 70.100(a) with one
of those prior violations occurring at Pyro #9 Slope William
Station.
Citation No. 2225777
18. This citation was issued by Federal Mine Inspector
George W. Siria on August 4 , 1983, alleging a violation of
30 C. F. R. § 75.1304 .
19 . Inspector Siria testified .that he observed a shot
firer, Louis Allen , carrying explosives to the face of the
Number 5 entry on the Number l Unit in a cardboard box which
did not have a top on it.
20 . Inspector Siria testified that although a cardboard
box would ordinarily be non-conductive, it would become
conductive if it became wet . He further testified that he
observed the shot firer dragging the box across the mine
floor which was frequently wet. Mr. Siria also expressed
concern that without a top on the box sticks of the explosives
could fall out of the box and be overlooked by the shot
firer and then be run over or scooped up with the coal and
rock during normal mining operations.
In either case, Mr.
Siria felt that there was a danger of detonation. He acknowledged
that he was more concerned with the insubstantial construction
of the container and the missing top on the box than the
question of conductive material, but did not specify either
of those conditions in the citation .

?.067

2~.

In the two-y,e ar period before this citation,
had one violation o£ § 75 .. 1.304 and 1.0 vio1ations
of § 715 .. 1303, § 75.1.305~ and § 75.1306, which are al1 standa:ras
dealing with the handl.i:ng, transportation or storage of
explosives.
.Respondent~

Citation 2337386 ·
_
22.. This citation was issued by Federal Mine Inspector
Georye W. Sir.ia on August 11., 1983, al..leging a violation o£

30 C .. F .. R.. § 75.400.
23. inspector Siria observed 1oose coa1 and coal dust
which had been aJ.lowed to accumulate along the ribs an~
:floor of two hau.lage roads inby the three ~ay feeder used by
Pyro to facilitate the transportation of coa.l out of the
mine.. The loose coa.l and •c oal. dust extended £or a about 60
:feet al.ong bro haulage roads and was three to twelve inches
in depth ..
24.. The ac·tmmulations presented a serious hazara o:f a
liline :fire or propa9atinn o:f a fire or expl.os.ion ..

:25..

.About 12 miners were endangered by this condition ..

26.. In the two-year period before this citation~
Responuent had a li)2 vi.ol.ations o:f § 15 .. 400 with 15 of these
violations occurr.ing at Pyro *9 .Slope Wil.liam Station Mine ..
Citation 2225774

27. .Inspector George w. Si.ria issued thi.s ·c itation on.
August 2.~ l983, al.l.egi.ng a violation of 30 C .. F .. R ..
§ 70.5Ql •
.2:S.. Inspector S.iria., using MSHA approved procedures
and instruments , .obtained an ,ei.ght hour supp.lemental noise
survey f ·o r the loading :machine operator- 'The results snowed
.a noise level o:f l .. 4l .:r which substantially exceeded the
perm.issi.hl.e .level ~o£ exposure prescrihed hy ~le 1 referenced

in 3~ C.. F .. R.. § 70 .. 5nl ..
29.. As p:rescr.ibed by the :fo.naula :found in § 70 .. 502.
the lnaXilaum peraissi.ble exposure .level is ~ssed as the

number one.. .Any nu.aber above one represents an exposure in
excess o:f tile pen:aiss.ihle levels exp~ssed .in Table l.. -

2068

30. Inspector Siria testified that it is MSHA's policy
to allow an instrument error factor of .32 so that no citation
is issued until the measured noise exposure exceeds 1.32.
31. Inspector Siria testified that the loader operator
was not wearing any hearing protection.
32. In the two-year period before this citation Respondent
had no violations of § 70.501.
DISCUSSION WITH FURTHER
FINDINGS AND CONCLUS'IONS
Citation 2225768
Respondent was negligent in failing to follow its
approved roof control plan. This was a serious violation,
subjecting three to twelve miners to a hazard of roof fall.
Considering the criteria for civil penalties in section
llO(i) of the Act, I find that an appropriate penalty for
this violation is $500.
Citation 2074898 ·
Respondent does not dispute this violation, but contends
that it is not a serious violation. This contention is
rejected. Dr. Hodous' statements in Exhibit G-10 support a
finding that the diseases associated with the inhalation of
respirable coal dust present a serious hazard to the health
of coal miners.
Respondent was negligent in exposing the listed employees
to excessive amounts of respirable dust.
Considering the criteria for civil penalties in section
llO(i) of the Act, I find that an appropriate penalty for
this violation is $250.
Citation 222577-7
The Secretary failed to prove· a violation as alleged in
this citation. The condition cited is use of a conductiv~
container for exposives. However, the plastic bags and
carboard box used were not conductive materials, and the
Secretary did not prove that they were wet or otherwise
conductive - at the time of this citation. The Secretary's
additional evidence of dangers due to an open carton and one
of insubstantial material are not fairly and reasonably
indicated by the specification of the charge in the citation.
Moreover, the Secretary did not notify the Respondent of
these contentions in the prehearing exchanges and did -not
move to amend the citation before the hearing.

206H

The charge in this citation wi ll be dismissed .
Citation 2 3373&6
Respondent does not dispute the accumulations observed
by the inspector, but contends that it was following its
clean- up program.
This argument is rejected . Inspector
Siria testified that the accumulations were extraordinary
and dangerous, whether or not they occurred on one shift or
more. A violati ve accumulati on under § 75.400 is not made
acceptable simply because it will be c l eaned up later under
the operator ' s clean- up plan .
The violation was serious and due to negligence.
Considering the negligence , gravity, and compliance
history involved , and the other criteria of section llO(i)
of the Act, I find that an appropriate penalty for this
violation is $1 , 500.
Citation 2225774
A violation of the noise standard was proved.
Considering Respondent's good compliance history concerning
this standard , and the other criteria of section llO(i) of
the Act, I find that an appropriate penalty for this violation
is $75.
CONCLUSIONS OF LAW
1. The Commission has jurisdiction in these consolidated
proceedings.
2.
Respondent violated the safety standards as alleged
in Citations 2225768, 2074898, 2337386, and 2225774 .
3 . The Secretary failed to prove a violation as alleged
in Citation 2225777.

ORDER
1. Respondent shall pay the above civil penalties in
the total amount of $2 , 416 within 30 days of this Decision .

2070

2. The Secretary's charge as to Citation 2225777 is
DISMISSED .

tJ~~ ~IAMVe/L

William Fauver
Administrative Law Judge

Distribution:
Thomas A. Grooms, Esq. , Office of the Solicitor, u.s . Department
of Labor, Room 280, u. s . Courthouse, 801 Broadway , Nashville,
TN 37203 (Certified Mail)
William Craft, Manager of Safety , Pyro Mining Company, P.O .
Box 267 , Sturgis, KY 42459 (Certified Mail)
kg

2071 "

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

December 12, 1985

PENALTY PROCEEDING
.: CIVIL
Docket No. CENT 85-4

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

:

.

v.

A.C. No. 29-00096-0350

0

McKinley Mine
.
THE PITTSBURG & MIDWAY COAL
MINING COMPANY
.
Respondent
1

DECISION
Appearances:

Richard L. Collier, Esq., Office of the
Solicitor, u.s. Department of Labor, Dallas,
Texas, for Petitioner1
John A. Bachmann, Esq., The Gulf Companies,
Law Department, Denver, Colorado, for
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a civil penalty proposal filed
by the petitioner against the respondent pursuant to section
llO(a) of the Federal Mine Safety' and Health Act of 1977,
30 u.s.c. § 820(a), seeking a civil penalty assessment in the
amount of $470 for one alleged violation of mandatory safety
standard 30 C.F.R. § 77.202. The violation is in the form of
a section 104(a) citation, with special "S & S" findings,
issued by MSHA Inspector Harold. Shaffer on March 6, 1984.
The respondent filed a timely answer contesting the proposed civil penalty assessment, and a hearing was held in
Gallup, New Mexico, on June 4, 1985. The respondent filed a
posthearing brief, and the arguments presented therein have
been fully· considered by me in the course of this decision.
Petitioner did not file a b~ief, but. I have considered .t he
-Solicitor's arguments made d~ring the course of the hearing.

2072

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977.
Pub. L. 95-164, 30 U.S.C. § 801, et seq.
2.

Section llO(i) of the 1977 Act, 30 u.s.c.

3.

Commission Rules, 29 C.F.R.

§

§

820{i).

2700.1 et seq.

Issues
The principal issue presented in this proceeding is
(1) whether respondent has violated the provisions of the Act
and implementing regulations as alleged in the proposal for
assessment of civil penalties, and, if so, (2) the appropriate civil penalty that should be assessed against the respondent for the alleged violation based upon the criteria set
forth in section llO{i) of the Act. Additional issues raised
by the parties are identified and disposed of where apprppriate in the course of this decision.
In determining the amount of a civil penalty assessment,
section llO(i) of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, <2> the appropriateness of such penalty to the size
of the business of the operator, (3) whether the operator was
negligent, {4) the gravity of the violation, and (5) the demonstrated good faith of the operator in attempting to achieve
rapid compliance after notification of the violation.
Stipulations
The parties agreed that the respondent's m1n1ng operations affect interstat.e commerce, that the inspection was
performed and the citation issued 'as alleged in the complaint.
They also agreed that the respondent produces 15,000,000 tons
of coal a year, and that the payment of the civil penalty
assessment will not affect the respondent's ability to continue in business (Trr 4).
Discussion
Section 104(a), "S & S" Citation No. 2070578, issued on
March 6, 1984, cites a violation of 30 C.F.R. § 77.202, and
the condition or practice cited is described as follows:
Coal dust was not prevented from accumulating in dangerous amo~nts inside the motor
control center at the north coal preparation
facility transfer building operator room.

2073

Coal dust was spread throughout the inside of
the electrical control center. This condition was one of the factors that contributed
to the issuance of Imminent Danger Order No.
2070575 dated 3/6/84; therefore, no abatement
time was set.
30 C.P.R. § 77.702 provides as follows: "Coal dust in
the air of, or in, or on the surface of, structures, enclosures, or other facilities shall not be allowed to exist or
accumulate in dangerous amounts."
Petitioner's Testimony and Evidence
MSHA Inspector Harold Shaffer, testified as to his mining
experience and background, and he confirmed that he has been
employed as an electrical specialist since September, 1982.
Prior to that he served as an electrical inspector with MSHA
since 1977. He identified the subject mine as a bituminous
coal strip mine located at Window Rock, New Mexico, and he
confirmed that he conducted the mine inspection on March 6,
1984. After completing an electrical spot "classification
inspection" at the mine south facility, he proceeded to the
north facility (Tr. 8-14).
Mr. Shaffer explained that the metal coal transfer building used to transfer the coal from one belt to another belt
housed the motor control room and operator's compartment.
The motor control room is located at the top of the building,
and the room is approximately 11 feet by 22 feet. The operator sits at a table where his motor controls are located.
The controls operate all of the motor and conductor circuits
in the building, as well as those located outside the building (Tr. 40-42). He explained th~t the transfer building
operator's compartment is classified as a Class 2, Division 2
hazardous area under the National ·Electrical Code, Article
500, and that in order to make the area non-hazardous, it has
to be purged of coal dust (Tr. 39). All electrical components used in such an area must have UL or FM approval, and
all motors have to be totally enclosed. The motor control
compartment was classified as Class 2, Division 2, because
there were openings into the area (Tr. 44}.
Mr. Shaffer stated that the purpose of the electrical
component compartment which he cited was to prevent or eliminate coal dust from entering the inside of the compartment
which contained electrical c~mponents such as line starters,
and 3-phase circuit breakers·. :. -He identified the compartment
in question as a NEMA (National Electrical Manufacturer's

2074

Association> type 12 enclosure, and in his opinion, it was
not effectively maintained to keep coal dust out because the
bottom was open (Tr. 14-16).
Mr. Shaffer stated that the opening at the bottom of the
compartment cabinet was created when the compartment was
fitted over the concrete floor to facilitate the entrance of
electrical conduits servicing some 30 to 40 circuits inside
the compartment enclosure. The coal dust migrated continuously up and through these conduit openings into the
compartment.
·
Mr. Shaffer stated that when he first entered the compartment control room he observed two electricians and three
other individuals cleaning up coal dust. One person was removing coal dust from inside the compartment with a non-approved
vacuuming device. He observed that the energized main breaker
was exposed, and the other individuals were removing the coal
dust from the cabinets and pipes with rags. He estimated that
there was coal dust approximately 1/8 to 3/16 of an inch
inside the compartment where the conduit entered through the
floor, and the dust was present on the conductors as well as
the metal bottom portion of the cabinet enclosure. He did not
measure the coal dust depths because he could not make accurate measurements due to the fact that the lighting was off
and "everything was de-energized" (Tr. 19). In addition, it
would be difficult for him to insert his wooden ruler into the
bottom recesses of the cabinet and to read the measurement
with his glasses on (Tr. 21).
Mr . Shaffer stated that one full time operator is usually working at the cited location , and he had no way of
determining how long the cited coal dust condition had
existed prior to his inspection. However, he did not believe
that the accumulation could have existed for less than 1 day.
Mr. Shaffer believed that the presence of combustible
coal dust in the motor control center with starters and
breakers which are not dust proof··would be hazardous under an
abnormal operating condition such as a phase-to-phase fault
in the electrical equipment. He identified a photograph of
the result of an electrical phase-to-phase fault in a breaker
at a coal facility, and he explained that it was an example
of what could occur should such a fault take place, but conceded that no coal dust was present when this event occurred
(exhibit G-6, Tr. 23). He confirmed that should such an
event occur in the presence of coal dust an explosion hazard
would be presented because c-o:al dust will explode CTr. 24 >.

2075

Mr. Shaffer stated that the circuit breakers and breaker
arc traps would be a potential source of ignition. He identified a Westinghouse circuit breaker produced at the hearing
for demonstration purposes, confirmed that it was similar to
the breakers in the compartment which he cited on March 6,
1984, and he believed it was a source of ignition since it
could produce a spark CTr. 26>. Respondent's counsel stipulated that the circuit breaker used for demonstration purposes, as well as others, is the type used at the cited
control center CTr. 26).
Mr. Shaffer agreed that in order for the circuit breaker
or other electrical component inside the compartment to constitute a hazardous ignition source, there must be arcing,
sparking, or some other breakdown in the electrical components (Tr. 27). He also agreed that "some type of an explosion" would have to occur to put the coal dust in suspension
or produce a "dust cloud," but that any static electricity
would not be a problem at all (Tr. 28-29).
Mr. Shaffer stated that he has conducted experiments
with regard to the combustibility of bituminous coal dust,
and he identified exhibits P-2, P-3, and P-4 as representative samples of the coloration of explosive coal dust in a
cubic foot white area. Exhibit P-2 represents 5/100 of an
ounce of coal dust: P-3 1/10 of an ounce: and P-4 6/10 of an
ounce. He identified exhibit P-4, as the most dangerous in
terms of combustibility, and indicated that with the greater
amount of coal dust present, the greater the possibility of
placing the coal dust in suspension. The coal dust he
observed during his inspection was in excess of the amount
shown in exhibit P-4 (Tr. 32).
Mr. Shaffer stated that in h~s experiment with combustible coal dust, he used coal dust similar to the kind which he
observed on the day of the inspection, and that he induced an
"explosion." He repeated the experiment in the courtroom for
demonstration purposes. He explained that he weighed out
7/100 of an ounce of coal dust, placed it in the demonstration chamber, put the coal in s~spension by a tube-type
device, and then induced an electrical spark with a coil.
This resulted in an explosion of the coal dust (Tr. 34-35).
Mr. Shaffer confirmed that the cited conditions were
abated when the coal dust was cleaned up and removed from
inside the ~ electrical center and operator control room,
thereby removing the existing hazard {Tr. 38}.

2076

On cross-examination, Mr. Shaffer identified exhibit R-1
as a copy of a citation he issued at the south mine facility
prior to his inspection at the north mine. He confirmed that
he issued the citation after finding accumulations of coal
dust inside three different electrical compartments which
were approximately the same devices as those cited at the
north facility. He estimated that the coal dust present at
the south facility citation locations might have been 5/100
of an ounce per square foot, or similar to the color of
exhibit P-2, the lightest colored coal dust sample. The
second location cited was also light in color, and at the
third location the accumulations had already been cleaned out.
Under these circumstances, and since he did not consider that
the coal dust accumulations were enough to present a hazard,
he subsequently vacated the citation (Tr. 45-48). He confirmed that he took no coal samples, and that it was possible
that the areas may not have been completely all coal dust
<Tr. 49).
Mr. Shaffer stated that the coal dust present in connection with the citation at the north facility was black and
"paper-thin," and at the bottom of the compartment it was
heavier where it entered the compartment through the openings
(Tr. 50). He confirmed that the coal dust was inside the
component compartment or control center as shown in photographic exhibit R-2. The motor control center consists of
the group of electrical cabinets positioned back-to-back, and
the photograph represents the face, and there is a similar
face on the other side. All of the electrical control for
the tipple facility, i.e. , the crusher, load-outs, and belts
i s inside -the motor control center (Tr. 52-54). Everything
in the building is classified as Class 2, Division 2, and
Mr o Shaffer confirmed that it was so classified by MSHA by
letter dated May 25, 1977 (exhibit R-3; Tr. 55-56).
Mr. Shaffer stated that the electrical code for a
Class 2, Division 2 area does not prohibit accumulations of
coal dust 6 but it does require that the equipment which is in
such a location be approved for tfta~ location (Tr. 56). He
explained further as follows (Tr. 57-59):
Q. But doesn't the National Electric Code in
Class 2, Division 2 say that dust accumulations, or the gist of it, I should say,
because I paraphrased it, that the dust accumulations are all right so long as they don't
interfere with the norm~l operations?

2077

A. As long as the equipment is approved for
location, there's nothing wrong.
So you can have dust accumulations in
this area?

Q.

A. Right, Yeah, there's nothing says you
can't.
But didn't you earlier testify that PNM
didn't prohibit -- or prevent dust from accumulating in there?

Q.

A. That's correct, because the equipment
isn't approved for the location.
Q. we seem to be chasing our tail here,
Mr. Shaffer, the building's classified for
dust and all the devices that are in it have
been approved for a Class 2, Division 2 area.

A. Well, whoever approved them, that I don't
know. I mean, I was -- it ain't my problem
that they done it, but the National Electric
Code .specifically states they got to be
approved for the location. You got receptacles in there. You had a heater, I think it
was a heater with an air conditioner on it.
Neither one of them was UL or FM approved for
the location, for a Class 2, Division 2 area.
Q.

Are they inside the motor control center?

A.

No.

But the breakers ar~n ' t either.

Q. Are the breakers required to be
dust-tight?

A. They can't be dust-tight~· · "II'hat' s why you
had the cabinet, to keep the dust out.
They're only required to be dust-ignition
proof, aren't they?

Q.

A. They're not even required to be
dust-ignition proof , because they got to be
ventilated, because of your RPM temperature
build-up, and your conductors and your
terminals.

2078

All those devices though are approved for
that area.

Q.

A. No, the -- inside that compartment is not
approved, no, sir, not the -- not the electrical components.
When asked what led him to believe that there was a dangerous accumulation of coal dust present when he issued the
citation in issue in this case, Inspector Shaffer replied as
follows (Tr . 64-65):
A. Just by the c.o lor of it and the depth of
it.
And why does the color and depth of ~he
coal dust accumulation make it dangerous?

Q.

Because you have more chance when you
have a large amount of coal dust, you get
that five-hundredths of an ounce into suspension into a dust cloud, also under abnormal
operating conditions, you have a breaker that
blows, it's going to put that in suspension
and it's going to blow the whole compartment
up.

A.

Is coal dust -- let me rephrase the question. was the coal dust that was lying in
these cabinets dangerous as it laid there?

Q.

A. No, it was not dangerous as it lays, not
just laying.
Now, what do you -- how would that -- let
me rephrase the question again. What do you
know about the suspendability of coal dust?
Have you had any training in···that?

Q.

A. All I know is what I read, and I read a
lot of articles on it.
Q. Now, how would you propose that this coal
dust get into suspension?

A. You'd have an -- all you'd have to have
is a breaker explode. -

2079

Q. And how long does a breaker explosion
last?
A. Well, -- well, once the dust is in suspension, then it don't take that much energy to
ignite the dust cloud.
Q. Well, the question I asked you, how long
does the breaker explosion last?

A. Well, it would last long enough to put it
into suspension, if you had enough coal dust
in there, you'd get that much in suspension.
Q. And how violent would a coal -- or excuse
me, a breaker explosion be?

A. All right. Once the initial would take
place, then you would have the promulgation
of the rest of the dust going into suspension
explosion.
Well, I'm -- I'm asking you how violent
the explosion would be. You need some kind
of energy output to raise the dust, don't
you?
Q.

A. Yeah, you -- once the explosion takes
place, it's going to raise everything.
But how violent i s the explosion does the
breaker? Does it go off like a firecracker?
Does it go off like a paper bag being popped?
Does it go off like a balloon being broken .

Q.

Well , it could go almost any way under
the conditions, you know, under the fault.

Ao

Mr . Shaffer stated that in hts ~0 years experience with
electrical systems, he has seen .no multi-case type circuit
breakers blow up. He has heard of five or six exploding
since he has been with MSHA, and he confirmed that while such
an explosion would place coal dust in suspension, the presence of a spark would be required to ignite it. The spark
would be present because the conductor and insulation would
be on fire if the breaker blew up (Tr. 67).

2080

Mr. Shaffer believed that the coal dust in the cited
control center cabinets would be dangerous because an abnormal fault could put the dust in suspension. He indicated
that the distance of the breakers to the coal dust ranged
from 8 to 15 inches at different locations (Tr. 68). Absent
an abnormal condition, the possibility of a "smoldering fire"
existed (Tr. 68>.
Mr. Shaffer stated that his prior citation at the south
mine was vacated because there was not enough coal accumulations for the areas cited, whereas in the north facility
there were enough accumulations for the areas cited (Tr. 71).
Mr. Shaffer confirmed that enough coal dust must be present to put it in suspension, something has to be close enough
to put it in suspension, and an ignition source must be present. During normal operating conditions, there would be no
existing ignition sources inside the motor control center.
Although a hot conductor could ignite the coal, an explosion
would not result because the coal dust has to be in suspension before it will explode (Tr. 69-70). He also testified
as follows <Tr. 70: 72-73>:
So, this quiescent coal dust, this coal
d'u st laying in this cabinet, is only dangerous when it becomes suspended and ignited?
Q.

A.

That's correct.

And it could only become suspended in
these cabinets under a fault or abnormal
condition?

Q.

A.

That's correct.

During normal operation, there is no ignition source?

Q.

A. Well, there is an ignition source, the
electrical wire and stuff is there, you know.
The potential is there. I mean, it's always
there. You can't take it away.
This coal dust that was in these cabinets
did not interfere with the normal operation
of the cabinet -- of the electrical devices
at the time, did it? .
Q.

A.

No.

2081

Q. so it wasn't dangerous to the operation
itself?
A. No, sir, it wouldn't be dangerous to the
operation itself, no.

*

*

*

*

*

*

*

Now, just for clarification of the
record, would you tell us again how the coal
dust could be placed in suspension in that
facility?
Q.

A. The only way I see possible, the way it
can be put in suspension, under an abnormal
condition, with something exploding in there,
to put it -- to make it get a dust cloud up,
then that's the only way.
Are you talking a spark from some of the
electrical equipment?

Q.

A. We're talking about something exploding
in that compartment. You would have to have
an explosion to put that dust into suspension
and that spark being there at the time then.

Q.

So what you're really talking about is
two explosions?
A. Yeah, yeah, the first explosion won't
make the coal dust, it would only make a dust
cloud. Once the dust cloud gets in suspension, you'd get five-hundredths of an ounce,
and then you'd have a spark, then you would
have ignition.
Q. So you're talking about ~ tittle explosion placing it into suspe~sion. Then you're
talking about a big explosion after that?

A.

Yes, sir

Q.

It could

A. Excuse me, sir. Th~ last one would be
according to how much coal dust was there.

2082

And, at Tr. 83-84:
Q. Now, when you saw the coal dust in here,
was it in these areas in this whole motor
control center, was it generally in flat uniform layers or was it bumpy and ridgey?
A.

It's more of the smooth.

Q.

Nice and layered?

A. Yeah, it's float.
settles.

It's stuff that

Q. Even around the -- the conduit openings
where it was coming in, it wasn't ridged up
or anything, it was just laying there flat?
A. No, in there, it's more irregular, plus
it was on the conductors themself. It was
laying heavily on the conductors, of all
conductors.
Q. And are they ignition sources as they lay
there?

A.

Oh, they definitely are, yes.

Q.

Why is that?

A. Well, they -- one of them, you could have
a fault in one of the circuits, or else one
of your motor controls, breakers, could be -it won't trip, i t 's faulty, and that conductor could be shorted on the dther end, it
could get red hot.
I see.
explosion?

Q.

And that will cause a coal dust

A.

It ' ll catch on fire.

Q.

But it won't cause it to ex~lode?

A. Well, we're only talking about dangerous
accumulations now. A fire is also going to
give off co, and if a man's in that room up
there, it's possible th~t .he'd be overcome.

2088

How far would that fire spread across
this coal dust that was accumulated in the
bottom?

Q.

A.

I -- I personally, I couldn't tell you.

In response to bench question concerning exhibits P-2,
P-3, and P-4, Mr. Shaffer stated as follows (Tr. 89-90):
JUDGE KOUTRAS: Now, let's assume that you
had observed coal dust or float coal dust the
color of P-2, which is the lighter of - would that still be dangerous, in your
opinion?
THE WITNESS:

Could I see which one is P-2?

JUDGE KOUTRAS: Yeah, it's the first one
there. Mr. Collier, I believe, is the
lighter one. I believe it's that one. isn't
it?
MR. COLLIER:

Yes, sir.

THE WITNESS:

No, that one I wouldn't.

JUDGE KOUTRAS: If you'd of seen the coal
dust -- if you'd seen the accumulations of
that color, coloration, you wouldn't have
issued a citation?
THE WITNESS:

No.

JUDGE KOUTRAS: Because you wouldn't consider
that to be dangerous?
THE WITNESS:
JUDGE KOUTRAS:
the P-3?

No.
How about the next one down,

THE WITNESS: The next one, I would hesitate
now about even writing it as a dangerous
accumulation.
JUDGE KOUTRAS:

And why is that?

-

THE WITNESS: That's on-e--tenth of an ounce.
Due to the fact it would be hard to get

2084

five-hundredths of an ounce of that into
suspension.
JUDGE KOUTRAS: Okay. Now, you claim that
the color that you saw was what's -- which is
on the last exhibit, P-4 there, and you were
of the opinion that was dangerous?
THE WITNESS:

Yes, sir.

Respondent's Testimony and Evidence
Ernest Yazzie testified that he is employed by the
respondent as the supervisor of safety and training at the
McKinley Mine, and has served in that position for 3 years.
Prior to this, he served as a company safety inspector and
mine foreman, and his total experience with the respondent is
approximately 9 years. His duties include supervision of all
mine safety activities, keeping compliance records, and accompanying mine inspectors during their inspections.
Mr. Yazzi stated that he was familiar with the mandatory
standards found in Part 77, Title 30, Code of Federal Regulations, and he confirmed that he accompanied Inspector Shaffer
during his inspection on March 6, 1984, and that the citation
was served on him.
Mr. Yazzi stated that Mr. Shaffer began his inspection
at the south mine surface facility where he issued a ladder
guarding citation, a citation for using a non-approved vacuum
cleaner, and a citation for coal dust accumulations on certain electrical compartments (exhibit R-1). However, the
citation for dangerous coal dust accumulations charging a
violation of section 77.202, was subsequently vacated by
Mr. Shaffer. Upon completion of the inspection at the south
mine location, he and Mr. Shaffer proceeded to the north coal
preparation facility transfer building where the citation in
issue in this case was issued at approximately
2:00 p.m.
;
Mr . Yazzi stated that Mr. Shaffer issued the citation in
question after finding coal dust accumulations in the operator's control room at the top loadout and sampler building.
The coal dust was found on the operator's motor control
panels, and he identified four photographs as the equipment
where the accumulations were found to exist (exhibits R-2-a
through R-2-d). He stated that when they arrived at the control room, two electricians and the tipple operator were in
the process of cleaning the coal dust with rags. Although a
vacuum cleaner was present, Mr. Yazzi denied that it was

2085

being used, but he admitted that it was probably intended to
be used to clean up the accumulations, but since it was not
approved by MSHA, it was not in fact used.
Referring to photographic exhibit R-2-c, Mr. Yazzi
stated that he observed coal dust accumulated inside the
opened circuit breaker shown in the photograph and that it
was "greyish" in color. He indicated that the coal accumulations he previously observed at the south surface facility
cited earlier by Mr. Shaffer were no different than those
cited at the north facility location. However, he conceded
that the coal dust accumulations which were present at the
bottom of the equipment cabinets where a number of ·cables and
conduits entered the enclosures were darker in color, and
that this was true at both the south and north facilities.
He identified photographic exhibit R-2-a, as the control
panel in question, and he indicated that at the time of the
inspection at the north facility, the bottom panels had been
removed and the openings permitted the coal dust to enter the
inside of the entire enclosure.
Mr. Yazzie stated that upon arrival at the cited control
room north facility some of the panel doors were open and
that the electricians were in the process of opening the
other cabinet panel doors to facilitate the cleaning of the
coal dust. He confirmed that Mr. Shaffer issued a closure
order taking the equipment out of service, and that he did so
because the equipment was energized. He explained that the
power was on "the main feed lines," but that the electricians
turned off each of the individual circuit breakers as the
cabinet doors were opened, and that this de-energized all
circuits below the breakers. However, Mr. Shaffer insisted
that ·the main power breaker be shut down before the clean up
was allowed to continue, and this was done.
Mr. Yazzi confirmed that he discussed the cited conditions with Mr . Shaffer, and that when he asked him why the
coal dust accumulations were dangerous or hazardous,
Mr. Shaffer replied "if they are bla¢k, its dangerous."
Mr. Yazzi was of the opihion th~t the cited coal dust accumulations were not dangerous. He stated that the accumulations
were the result of normal operating conditions, and it was
his opinion that the accumulations were a "normal four-week., ·
accumulation. He also indicated that such coal dust accumulations are cleaned up on a monthly cycle, but that since the
citations were issued, they are cleaned up every 2 weeks (Tr.
123-13'2).

2086

On cross-examination, Mr. Yazzi stated that when he
arrived at the motor control center some of the cabinet doors
were open and the electricians were still opening others. He
saw no one using the vacuum cleaner. With regard to the
prior citation issued at the south mine, Mr. Yazzi stated
that the only difference in the coal accumulations at the
north mine was with respect to the color of the coal at the
bottom of the control center. It was darker in color (Tr.
137).
Mr. Yazzi believed that the clean-up which was in progress at the time Mr. Shaffer arrived on the scene was simply
a coincidence, and the clean-up had just started. Other cabinets in other areas 0f the building had been cleaned up
before Mr . Shaffer arrived at the control room (Tr. 140).
Frank Scott, testified that he has been employed at the
mine as an electrician foreman for approximately 7-1/2 years.
He has 25 years of experience as an electrician, including
work as an electrical contractor. He attended the University
of Texas for 3 years taking electrical engineering courses,
but he did not receive a degree.
Mr. scott stated that he was familiar with the electrical equipment which was cited in this case, but confirmed
that he was not present during the inspection and did not
observe the cited coal uust accumulations. Mro Scott confirmed that the type of electrical equipment which was cited
is subject to routine break-downs and failures, and that
while circuit breakers have been known to fail and needed to
be repaired or replaced, he has never known any to "blow up."
He stated that under normal operating conditions, all of the
electrical component parts in question, such as the wiring,
breakers, overloads, and fuses are sized so as to preclude
the overheating of any wires or cables. They are also
designed to prevent arcing across the phases.
Mr . Scott stated that in his experience, he has known
circuit breakers to crack or burn infernally when they did
not "re-set" after tripping due .to an overloaded circuit, but
he has never known any to physically "blow up" or
disintegrate (Tr. 140-146) .
On cross-exarninationF Mr. Scott stated that under normal
operating conditions, there is no ready ignition source
within the cabinet components of the electrical equipment in
question. He stated that while he has observed transformers
with fuses which had blown or.·· which had shorted out, he has
never known of any which had "blown up." He stated further

208{'

that he could think of nothing which would place the coal
dust accumulations into suspension within the electrical component cabinets in question (Tr . 147-152).
Dr. Robert V. Dolah testified that he is a self-employed
consultant in the field of all types of fires, gas, dust, and
paper explosions, and spontaneous combustion. He was
employed with the u.s. Bureau of Mines from 1954 to 1978,
when he retired, and he served as head of the group at
Pittsburgh and Bruceton, Pennsylvania, which was concerned
with fires and explos i ons . He served as the research director of the Pittsburgh Mining and Safety Research Center. He
holds a B.A. in chemistry from the Whitmann College, Walla
Wala, washington, and a PH.D. in Organic Chemistry from the
Ohio state University (Tr . 153-155). By agreement of the
parties, Dr. Dolah's credentials and background were admitted
as part of the record in this case <Tr. 155, exhibit R-5).
With regard to the photograph depicting the results of
an electrical fire as testified to by Inspector Shaffer,
Dr. Dolah stated that had there been coal dust present in
that instance in the amount testified to by the inspector,
its contribution to the fire would have been miniscule in
contributing to the full load compared to the wire insulation
which was present (Tr. 157).
Dr. Dolah stated that Mr. Shaffer's estimate of the
amount of coal dust one can calculate to provide the minimum
explosive concentrations in any electrical compartment is
i~correct.
He indica ted that recent studies conducted by his
group indicates that .135 ounces of coal per cubic foot is
the minimum expl osive concentration . For any reasonable ignition sources that may be present, he estimated that it
requires three times that amount to constitute an explosive
concentration. Although the blackest coal dust sample as
depicted by exhibit P- 4 contains 10 times the minimum. required
explosive concent r a tionf by simply l ying inert on a surface
area it does not const itute a hazard o r a dangerous accumulation. Simpl y be i ng i n th e presence of combustible insulation , with nothing burning , the .coal dust will not explode.
I n order to be dangerous, t he accumulated coal dust must be
capable of being suspended t o provide an explosion. Otherwise , the coal dust , at best , will only smolder very slowly.
and a thin layer of dust on a metal plate will not smolder
(Tr. 158-159).
Dr . Dolah stated t hat i n underground coal mines, methane
provides the initial explosion, and the initial dynamic wind
from that explosion picks up the coal dust and fire, and this

2088

results in a propagating coal dust explosion. While there
have been instances of explosions in the absence of methane ,
these were the result of the improper use of non-permissible
explosives which dispersed large quantities of coal dust
which was present in the working place (Tr. 159- 160).
Dr. Dolah could not cite anything that would create a
coal dust cloud inside a closed electrical cabinet. Even if
a breaker or a starter motor were to fail, an explosion would
not be associated with these events. In the photograph of
the electrical fire , he did observe evidence of a fire but
not an explosion (Tr. 161).
In addition to the creation and presence of a coal dust
cloud, Dr. Dolah indicated that sufficient wind must be present to suspend the coal dust. In a series of several investigative research reports completed under his supervision , a
large amount of coal dust required winds at 100 miles an hour
to place it in suspension. Very fine coal dust requires
winds of hurricane force to place it in suspension. Dust
which is simply lying on tiles in artifically ridged piles in
a "wind tunnel" apparatus required winds of 20 to 30 miles an
hour simply to move it (Tr. 161). He could perceive of nothi ng which would create a wind of this magnitude inside a
closed cabinet, and he finds it difficult to understand how
any reasonable accumulation of coal dust inside such a cabi-.
net presents a dangerous accumulation (Tr. 162). He further
explained as follows at (Tr. 168-170):
Now, in other words, the coal dust wants
t o stay where it is, is what it amounts to?

Q.

A. Yeah, there's no reason for it - - it -all dust explosions , except under conditions
where we've had -- that there was an ample
concentration of dust in suspension at the
t ime there was an ignition source, all other
dust explosions occur when there is a violent
aerodynamic f orce that picks up ·the dust and
d isperses it .
And what you said earlier, you can't conceive of any , having looked at these cabinets9 you c a n 't conceive of any event that
woul d supply the necessary energy to suspend
the coal in any i nstance?

Q.

A. The only one would be explosion in the
whole building.

2089

we wouldn't have to worry about the coal
dust then?
Q.

A. That's right -- well, the coal dust
inside these compartments, no.
Q. Now, what about the thermal effects.
What if, as Mr. Shaffer testified, there was
-- there's coal laying on the conductors and
the wire can get hot because of a loose
connection and start burning and it's -- your
breaker where it comes through the bottom of
the box, you got this sixteenth of an inch or
three-sixteenths of an inch of coal dust, and
you could have a fire down there that would
smolder and get it in suspension somehow?

A. Well, the coal dust could smolder, that
coal dust in the immediate proximity to the
wire that's -- that's hot could smolder, but
even in a sixteenth of an inch or even an
eighth of an inch layer, that smoldering propagation is not going to propagate away from
the fire. And in no way is that smoldering
combustion going to lift other dust and
create a dust cloud.
What about an electrical fire just on the
insulation and a fire for whatever, a fault
starts in the cabinet and you get an electrical fire going, vis-a-vis that picture for
instance --

Q.

A.

Yeah.

-- will that cause coal dust to go into
suspension?

Q.

A. No. The conductive forces associated
with a fire even like a pretty intense fire
that we have here, won't really lift up the
dust that 's lying on the plate down here at
the bottom.
Q. So, you can't get enough thermal wind to
disturb it?

2080
'

I

A. Well, it's -- you see, the winds are
going up, and they're not going up all that
fast, you know, even in a fireplace in a
chimney, and so forth, the actual draft is -it's not going up there miles an hour, let
alone the air that's coming in at the bottom,
into the -- into the fire. That, you know,
that's almost immeasurable. You -- it ' s
going in, but there's no winds associated
with that, even in -- in a fireplace.
Q. What then is your conclusion with respect
to -- and Mr. Shaffer testified that the cabinets had as much dust on as that middle
sample, what is your conclusion with respect
to the danger -- dangerousness, to make up a
word, I guess, of that accumulation?

A. Well, I don't -- I don't think that it
represents a danger, because I cannot see
that it contributes a significant additional
fuel load in the case of a fire, nor does it
- - do I conceive -- do I -- I'm not able to
c ome up with a credible . mechanism whereby I
can go from this dust layer to a dust cloud.
And · I must have a dust cloud before I can
have a dust explosion.
Q.

It must be suspended?

A..

Yes o

On cross-exami nation , Dr. Dol ah stated that he finds
s e ction 77 .20 2 of MSHA ' s regulati ons impossible to apply in
a ll case s . He also stated as follows at (Tr . 171-172>:
Let me ask you , do you think it 8 s -- it's
possible to have an a ccumulation of -- of
coal on t he floo r of a comp artment like we
t a l ked about today in an amount that would be
dangerous ?
·
Q.

AQ

I would think that there was a -- there
an i ncreased fire hazard when one has an
a ccumulation in there such that the dust
could undergo spontaneous heating. That if
there was sufficient dust in there that it
significantly increased :the fuel load within
that -- within that compartment . Regardless
\~Tas

2081

of the amount of dust that you have inside
the closed compartment, I still have to have
some mechanism of getting that dust into suspension before I can conceive of a dust explosion. And if I have a closed compartment, I
have to conceive of some external mechanical
force that disrupts this compartment, or I
have to conceive of an aerodynamic force
within the compartment and short of an explosion outside or short of an explosion inside
that has to be of an energy that is great
compared to what I'm interested in, I can't
get this -- these aerodynamic forces or these
mechanical forces. I can't find a credible
mechanism for suspending that coal dust.
Have you considered in all respects,
Doctor, the -- any extraordinary acts that
could occur that could cause an explosion?
Q.

A. Well, I mentioned one.
sion outside.

That was an explo-

Q.

Could cause an explosion inside?

A.

Yeah.

You have or haven't considered extraordinary events that might not cause this?

Q.

Well, I consider that to be most
extraordinary.

A.

And, at Tr. 173-174; 175-177:
Doctor, could coal dust in the amount of
.05, five hundredths of an ounce per cubic
feet cause an explosion if put ~n suspension?

Q.

A. That amount, that concentration of coal
dust is not in itself ignitible.
Have you personally ever experimented
with that amount of coal dust in suspension?

Q.

A. No. I have -- I have seen the kind of
demonstrations that Mr. _shaffer put on, and
I 've seen those several·-times. I have seen
the Hartman bomb operated on a variety of

2092

dust many times, and I have -- I have seen
the most recent work that has been published
by the Bureau of Mines, and which -- which
shows that the original numbers are incorrect.
And I say there's a great problem of making
these measurements. If you look in the literature on this minimum concentration for coal
dust, of a dust comparable to Pittsburg coal
dust, you'll find numbers running all the way
from one-hundredth of an ounce per cubic foot
to .23, nearly a quarter of an ounce of -per cubic foot, and all of these numbers have
their -- have their proponents, but I believe
that the most recent work of -- beginning in
the late 70's and still continuing, done by
the Bureau of Mines, I sort of doubt these
problems quite reasonably.

•

*

*

*

*

*

*

JUDGE KOUTRAS: You indicated that, in your
opinion, that the specific regulation that
we're dealing with, 77.202, is impossible to
apply in all cases.
THE WITNESS: In all cases, because it
depends on the circumstances, the possibility
and what credible mechanisms exist for the
suspension of this coal dust.
JUDGE KOOTRAS: Okay, Now, given the facts in
this case , given the conditions or practices
that the inspector observed, that Mr. Shaffer
saw
THE WITNESS:

Yes.

JUDGE KOUTRAS:
with respect to these compartments, can you envision ant situations
connected with that equipment where this particular regulation would come into play?
THE WITNESS:

No, I cannot.

JUDGE KOUTRAS: Now, counsel -- Mr. Collier
asked you some questions about the -- the
explosion factor here ~nd Mr. Bachmann asked
you some questions on direct with respect to
the -- the arcing and the propagation and

2083

getting the dust into suspension, and your
answers were specifically addressed to an
explosion situation.
THE WITNESS:

Yes.

JUDGE KOUTRAS: Can you envision these same
types of questions applying to a fire situation? In other words, what -- what, if any,
amount of coal accumulations, let's say just
laying on a metal trap or lying in a cabinet,
would -- would any of that be prone to fire?
What would it take to start a fire, let's say
in this cabinet, given a given amount of
float coal dust?
THE WITNESS: It would really be quite a
thick layer, you know, inch or two inches or
something like that, because for this coal to
fire, you would -- I don't even know that two
inches is . enough, because you have a problem
-- it's going to oxidize, and in oxidizing,
it heats up. So you end up with a balance
between the heat that is lost in the environment and the heat that is retained within the
sample.. It's the heat -- some amount of heat
.is kept in the sample, so that it builds up,
it will actually go into glowing conditions,
and this we have in the -- in spontaneous
heating. But if you've got a -- a thin layer,
you know, something a half inch, or -- I'm
sure that a half inch would never do it, even
with a reactive coal like this, the heat loss
to the atmosphere just through -- through convective forces and by conduction to the metal
plate underneath there, is such that it will
never get to a glowing condition. What -what quantity is required in there for a fire
to occur within the compartment,' would have to
be determined for a specific coal, because
those coals have different ·self-heating proclivities, but it's -- it's a very substantial
amount, it's not this thin layer that we're
talking about here.
Inspector Shaffer was called in rebuttal, and he testified that the abatement took approximately 4 hours. He .confirmed that during the proce~s 9f cleaning up the coal dust

2094

with rags, it could not be placed in suspension (Tr.
179-180).
When asked why he believed the cited accumulations constituted a significant and substantial violation, Mr. Shaffer
replied "I have been always told if it's black in color, that
it was a dangerous accumulation." Since this was the case,
he automatically concluded that the violation was significant
and substantial (Tr. 182).
Findings and Conclusions
Fact of Violation
The alleged violation in this case is virtually identical to the facts which led to a prior violation at the same
mine site in July, 1983. That case was heard and decided by
Judge Broderick on May 17, 1984, Secretary v. The Pittsburgh
& Midway Coal Company, 6 FMSHRC 1347, and it is now pending
before the Commission on appeal by Pittsburgh & Midway. In
that case, Judge Broderick made the following findings
(7 FMSHRC 1348-1349):
On June 9, 1983, there was an accumulat ·ion of coal dust in the main crusher panel
and the heat trace panel. The dust on the
base of each panel measured approximately
one-eighth of an inch. It was black in color.
There was dust on the equipment within each
box although most of it had settled to the
base. The dust was not in suspension .
The dust had come up through the floor of
the room and around the conduits under the
panels.
In the normal operation of the main
crusher panel and the heat transfer panel, no
ignition source, arc or spark is created.
In the event of a phase to phase or phase
to ground fault within one of the panels, an
ignition could be created. If an ignition
occurred, it could put the dust accumulation
in suspension and an explosion could result.
Judge Broderick then made the following conclusions and
affirmed the violation <7 FMSHRC 1349):

2095

The critical issue in this case is
whether the coal dust accumulations existed
"in dangerous amounts." There are few cases
interpreting this phrase. But see
Consolidation Coal Company, 3 FMSHRC 318
(1981) (ALJ); Secretary v. Co-op Mining
Company, 5 FMSHRC 1041 (1983) (ALJ). Whether
an accumulation is dangerous depends upon the
amount of the accumulation and the existence
and location of sources of ignition. The
greater the concentration, the more likely it
is to be put into suspension and propagate an
explosion. I accept· the inspector's testimony
as to the amount of the accumulation and conclude that it was significant. It is true
that there were no bare wires or any equipment
that would cause arcing or sparking without
some equipment failure or defect. But there
was energized electrical facilities present
and faults or failures in such facilities are
common occurrences. I conclude that if the
extent of the accumulation is such that it is
black in color, and if potential ignition
sources are present, the accumulation exists
in a dangerous amount.
The Consolidation Coal Company case concerned an accumulation of float coal dust ranging from 1 to 5 inches in a
room which housed a coal transfer belt head roller, drive
belt, motor and electrical equipment for the belt. The evidence in that case established that the float coal dust
covered the entire area of the room, including several ignition sources such an energized unprotected light bulb in a
hooper beneath the belt , a high voltage disconnect switch
covered with float coal dust, and 'the belt rollers. Former
Commission Judge Laurenson affirmed an imminent danger order
issued by the inspector for these conditions, and in the companion civil penalty case, he affirmed a violation of section
77 . 202. Judge Laurenson found that the 1 to 5 inches of
float coal dust throughout the entire room in question constituted an accumulation within the meaning of section 77.202.
He then concluded that by permitting accumulations of dangerous amounts of coal dust in the room, the mine operator vio- .
lated section 77.202.
The Co-op Mining Company case concerned a decision by
former commission Judge Moore in which he affirmed a violation of section 77.202. Although Judge Moore rejected an
inspector • s opinion that a mixture of un·s uspended coal fines

2096

and float coal dust could be ignited with a match and could
burn as rapidly as gunpowder <black powder), he nonetheless
found that the accumulations were combustible and that a
source of ignition in the form of a fire in a bucket was in
the area where the accumulations were found. He concluded
that the accumulations existed in "dangerous amounts."
In his posthearing brief in defense of the violation in
question in this Cpse, respondent's counsel cites the
Consolidation Coal Company case, as well as the case of
Western Slope Carbon, Inc., 5 FMSHRC 795 (April 1983), 2 MSHC
2218 (1983). The western Slope Carbon, Inc., case concerned
an imminent danger order issued by an inspector for an accumulation of float coal dust in excess of an eighth of an inch
deep for a distance of 500 feet along several underground
mine entries. Judge Carlson found that these accumulations
constituted a violation of section 75.400. He noted that the
Commission has held that a violation of this coal accumulations standard occurs whenever an accumulation of combustible
materials exists. Judge Carlson found that while there was
an improper accumulation of float coal dust, it did not constitute an imminent danger. He concluded that the possibility that the dust would be raised into suspension and then
ignited was too remote to create the likelihood of a fire or
explosion "at any moment". Although Judge Carlson vacated
the order, he found that the cited accumulations constituted
a violation of section 75.400, and assessed a civil penalty
accordingly.
Respondent argues that in order to establish a violation
of section 77.202, MSHA must establish that a coal dust accumulation must exist in a location such that under normal operating conditions the dust ·is susceptible to being put into
suspension, that the concentrations of coal dust are such
that the suspension would be ignitable, and that during normal operations an ignition source is present, proximate and
capable of igniting the suspended dust.
Respondent asserts that the -ingpector's testimony is
full of inconsistencies and misconceptions as to the standard
imposed by section 77.202. As an example, the respondent
cited the inconsistent testimony of the inspector with
respect to the extent of the accumulations he observed, and
in particular, his inconsistent estimates as to the depths of
the accumulations. Further, respondent cites the inspector's
testimony that under normal operating conditions no ignition
source existed in the motor control room in question, and his
failure to provide a creditabl~ explanation as to how during
normal operating conditions, -the coal dust in the cabinets

209'7

could get into suspension. With regard to the inspector's
reliance on a "catastrophic failure" of an electrical component of sufficient magnitude to put the dust in suspension,
the respondent points out that the inspector did not recognize that the failure would also have to be of such duration
and such proximity to the suspended dust so as to provide an
ignition source. Respondent concludes that section 77.202
does not require an operator to prevent the accumulation of
coal dust which is ignitable only during a catastrophic failure of the facility where the dust collects.
The respondent points to the fact that Inspector Shaffer
conceded that coal dust at rest by itself does not constitute
a dangerous accumulation, and that he agreed that the coal
dust must be put in suspension, that the ignition source must
be proximate, and that during normal operating conditions no
ignition sources exist inside the motor control center. The
respondent maintains that Inspector Shaffer issued the citation solely on the basis of what he perceived to be the black
color of the coal dust accumulations regardless of whether or
not the other elements of a dangerous accumulation were
present.
Citing the testimony of its witnesses, the respondent
asserts that it has clearly demonstrated that a dangerous
accumulation of coal dust did not exist inside the cited electrical control center. Respondent cites the testimony of its
safety supervisor Yazzie that the accumulations were "grayish
black" in appearance, no thicker than a newspaper, and that
he could see the compartment paint through the coal dust.
Respondent also cites the testimony of its electrical supervisor scott that the amount of coal dust described by Inspector Shaffer did not constitute a dangerous accumulation, and
that the dust could not be placed in suspension inside the
cited cabinets. Mr. Scott also testified that he did not
believe that the electrical components could "blow up" as
testified to by Inspector Shaffer, and he confirmed that on
numerous occasions he has observed coal dust accumulations
exactly as described by Mr. Shaffer,~ and as an electrician he
was not concerned about the existence of that dust in the
electrical components.
Respondent cites an earlier citation issued by Inspector .
Shaffer for another violation of section 77.202 at the respondent's south mine on the same day he issued the citation in
question in this case. Respondent points out that the citation was subsequently vacated and withdrawn because MSH~
could not prove that a dangerous accumulation of coal dust

2098

existed. Respondent asserts that even when the evidence concerning the dust accumulation is viewed in the light most
favorable to the petitioner it appears that there could have
been no more than 1/8 inch of difference in the amount of
coal dust found in the south mine electrical control cabinets
and the north mine electrical control cabinets. Respondent
asserts that Inspector Shaffer did not adequately or satisfactorily explain why 1/8 inch to 3/16 of an inch of coal dust
constituted a dangerous accumulation at the north mine while
slightly l.ess than that amount did not constitute a dangerous
condition at the south mine.
Finallyr the respondent maintains that the unrebutted
testimony of its expert witness Dr. Van Dolah, clearly and
unequivocally demonstrates that the conditions observed by
Inspector Shaffer did not cqnstitute a dangerous accumulation
of coal dust in violation of section 77.202. Respondent
asserts that Dr. Van Dolah's testimony refuted the inspector's belief that coal dust might propagate a fire, and that
Dr. Van Dolah could conceive of no credible situation where
the coal dust accumulation in the electrical cabinets in question could be put into suspension and ignited in such a
manner to create a dangerous situation. Further, respondent
concludes that in order for such a situation to occur, the
act which precipitated the suspension of coal dust would have
to be so violent that the additional danger presented by any
coal dust present would be insignificant when compared to the
danger proposed by the catastrophic failure itself.
In this case, Inspector Shaffer issued his citation on
the afternoon of March 6, 1984 o Earlier that day, he
inspected the respondentcs south mine surface facility and '
issued a citation for a violation of section 77.202, after
observing "dangerous amounts" of coal dust accumulations in
the crusher motor control room and in two electrical component and panel compartments. The violation was abated after
the "dangerous amounts" of coal dust accumulations were
removed from the three cited areas (exhibit R-1>.
I take note of the fact that the prior citation, as well
as the one in issue in this case, are both framed in identical language. In both instances, Inspector Shaffer stated
that dangerous amounts of coal dust were permitted to accurnu- .
late inside electrical compartments. Mr. Shaffer confirmed
that in connection with the earlier citation, he determined
that the. float coal dust he observed constituted a dangerous
accumulation because of its color and depth (Tr. 64). However, I note that in both in~:tances Inspector ~haffer did not

9Q(J'
0
:..... ' u

use the phrase "float coal dust" on the face of the citations, nor did he indicate the extent or amounts of the accumulations he purportedly observed. He simply concluded that
coal dust was permitted to accumulate in dangerous amounts.
The respondent established that the earlier citation
issued by Inspector Shaffer was subsequently vacated and that
MSHA's Dallas Regional Solicitor's Office filed a motion to
withdraw the citation during the course of a civil penalty
proceeding filed against the resondent in Secretary v.
Pittsburgh & Midway Coal Co., Docket No. CENT 84-77 (exhibit
R-4). The citation was withdrawn because MSHA believed . that
it did not have sufficient evidence to prove that the amount
of coal dust cited by Inspector Shaffer constituted a dangerous amount, and that it was not possible to measure the dust.
MSHA Counsel Collier confirmed that he was unaware of the
prior citation (Tr. 61).
Inspector Shaffer confirmed that the coal accumulations
he cited in this case were float coal dust, and he determined
this simply by visual observation (Tr. 88). He explained
that the accumulations were black in color and similar to the
example shown in exhibit P-4. Had the accumulations been the
colors depicted in exhibits P-2 and P-3, he would not have
issued any citations because the colors were less than
"black," which indicated to him something less than dangerous
accumulations (Tr. 89-90). He described the float coal dust
he observed as "smooth," "nice and layered stuff that
settles," rather than "bumpy and ridgey" (Tr. 83).
Mr. Shaffer stated that he observed some coal dust
three-sixteenths of an inch at the bottom of one of the cabinets, but that it was dark and that he could not see too well
without his glasses. He indicated that he could see the dust
"silhouette above the height of the conductor when I brushed
it off," and that he estimated the amount "by feel", but that
he did not measure it with a ruler <Tr. 119-120). He confirmed that while it was possible to sample this dust, he had
nothing with him to put the samples ~ in. He conceded that
without sampling, he would have no way of knowing the combustible content of the dust (Tr. 120).
Inspector Shaffer confirmed that clean-up was accomplished by wiping up the coal dust with rags, and he indicated that this was the only method that could be used (Tr.
180). He. stated that the clean-up took about 4 hours, and
when asked why he believed the violation was "significant and
substantial," he replied "I have been always told if it's
black in color, that it was a dangerous accumulation," and

2100

that in such a situation, he "automatically" makes a finding
that the violation is "S&S" (Tr. 182).
Respondent's safety supervisor Yazzie, who accompanied
Inspector Shaffer during his inspection, testified that the
cited coal dust accumulations were "grayish black" in color,
were "newspaper thin," and that he could see the cabinet compartment paint through the dust. ' Although the coal dust at
the very bottom of one of the cabinets in the north mine was
darker in color than the dust inside the cabinets, there was
no significant difference in the coal dust coloration at the
south or north mine areas. Mr. Yazzie also stated that while
the miners cleaning up the cited accumulations intended to
use a vacuum cleaner to clean up the coal dust, they did not
do so and the dust was cleaned up by wiping it up with rags.
He described the dust as "light dust" and confirmed that it
was similar to "dusting a table at home" (Tr. 131). He estimated that it took about 2 hours to abate the conditions (Tr.
136).
Inspector Shaffer conceded that coal dust simply laying
in the cabinets is not dangerous, and that it would not interfere with the normal operation of the cabinets or the electrical componets inside the cabinets. In these circumstances,
he would not consider the presence of such dust to be dangerous to the operation of these components. He further conceded that under normal operating conditions, there are no
ignition sources present inside the motor control center in
question. However, he believed that the electrical wiring
would be a potential source of ignition, but conceded that
such an ignition source must be close enough to the coal dust
to put it in suspension, and that the only way it could be
placed in suspension is by a fault or an abnormal condition
CTr . 69-70). Should such a fault or abnormal condition
exist, an . explosion would have to occur inside the cabinet in
order to place the coal dust in suspension. Once the coal
was in suspension, an arc or ignition would have to occur
before the coal was ignited, and the extent of any such explosion would depend on the amount of coal dust present (Tr.
74-76>.

Electrical supervisor Scott testified that under normal
operating conditions no potential source of ignition existed
inside the electrical cabinets in question, and that the coal
dust could not be placed in suspension. He discounted Inspector Shaffer's testimony that a breaker could "blow up."
Mr. Scott has 25 years of experience as an electrician,.
including work as an electri9al contractor, and he indicated
that the electrical components inside the cabinets are fused

2101

and sized in such a manner .as to preclude the overheating of
any wires or cables, and that they are designed to prevent
arcing. Although Mr. Scott alluded to instances of fuses
blowing out or shorting, and cracking or burning internally
when they did not reset, he knew of no instances of any which
had "blown up" with such force as to suspend coal dust. He
knew of nothing which could place the dust in suspension
inside the cabinets.
Dr. van Dolah testified that on the basis of the testimony of Inspector Shaffer, he could not support any conclusion that section 77.202 was violated. Dr. van Dolah
testified that the amount of coal dust testified to by Inspector Shaffer did not present a danger because "I am not able
to come up with a credible mechanism whereby I can go from
this dust layer to a dust cloud, and I must have a dust cloud
before I can have a dust explosion." Conceding that an accumulation of coal dust may pose a possible fire hazard, Dr. Van
Dolah emphasized the fact that before one can conclud~ · that
the coal dust posed a fire hazard, the specific combustible
properties of the coal must be established, and there must be
an amount of coal dust present to significantly increase the
potential fuel load. He believed that the amount of float
coal dust which must be present inside the cabinets to present a· possible fuel load for a fire would be "quite a thick
layer, you know, inch or two inches or something like that,
• . . I don't even know that two inches is enough • • • " (Tr.
176). or. van Oolah stated that coal dust in the amount of
.OS, of five hundredths of an ounce per cubic feet is not
itself ignitable CTr. 173-174).
or. van Oolah confirmed that he examined the electrical
cabinets cited by Inspector Shaffer, and he testified that
except for an explosion of the entire building where these
cabinets were located, he could not conceive of any event
that would supply the necessary energy to place the coal dust
described by Inspector Shaffer in suspension (Tr . 168). Conceding that coal dust in proximity of a hot wire could smolder, even in a one-sixteenth or one-eighth of an inch of coal
dust, such a smoldering condition would not propagate away
from that location, and in no way will any smoldering combustion lift other coal dust and create a dust cloud CTr. 169).
Dr. Van Dolah found it quite difficult to imagine any explosion of an electrical circuit breaker that would blow up a
multi-case breaker with such violence that the winds associated with that explosion would place the coal dust in
suspension (Tr. 166).

2102

Or. Van Dolah alluded to past coal dust explosion experiments conducted at the Bruceton experimental mine, and he
emphasized the fact.that there must be an initial explosion,
either by the introduction of methane or a massive amount of
explosives, a dispersion of the dust cloud in the air, and
the resulting propagation of the explosion. He could conceive of no dust cloud being created inside a closed electrical cabinet (Tr. 160).
or. van oolah took issue with Inspector Shaffer's testimony concerning the coal dust experiments he conducted. He
stated that the amount of coal dust one can calculate to provide the minimum explosive concentration in any compartment
was incorrectly stated by Inspector Shaffer, and that more
recent studies by his own group has shown the incorrectness
of the data relied on by Mr. Shaffer. Or. van Oolah stated
that the fact that the coal dust in question was lying in the
cabinet says nothing about the hazard associated with it. In
his opinion, for coal dust to be dangerous, it has to be capable of being suspended by some mechanism in order to provide
an explosion. Otherwise, coal dust, at most will only smolder very slowly, and a thin layer of coal dust on a metal
plate, in fact, will not smolder (Tr. 158). Referring to the
darkest sample of coal dust introduced at the hearing Dr. Van
Oolah stated that the coal dust simply lying on a surface or
on an insulator does not. constitute a hazard or a dangerous
accumulation because its: simply there. As long as the insulation is there, the coal dust is not burning and it is not
going to explode (Tr. 159).
I find the testimony of Mr. Scott, Mr. Yazzie, and
Dr. Van Dolah to be credible, and that it effectively refutes
the testimony offered by Inspector Shaffer to support his
theory of a possible explosion within the electrical cabinets.
I cannot conclude that MSHA has established that in the normal course of operation, an electrical component inside the
cabinets could cause the dust to be placed in suspension,
thereby propagating an explosion or a fire. As for the
inspector's theory of a "catastrophi"c" explosion of a circuit
breaker or other electrical component inside the cabinet, I
simply find no credible support ·for the inspector's belief
that this could occur. I accept the testimony by Mr. Scott
and Dr. Van Dolah as a credible refutation of any such
unlikely event.
With regard to inspector's observations concerning the
extent of the coal dust accumulations in question, I cannot
conclude that MSHA has established that the amounts present
were sufficient to pose a hazard of a fire or an explosion.

2103

Nor can I conclude that they were dangerous. Inspector
shaffer's testimony concerning the extent of the accumulations is rather equivocal. On direct examination, he testified that the coal dust was approximately 1/8 to 3/16 of an
inch thick. He also indicated that the lights were out
inside the cabinet and that he had difficulty in seeing, and
that he could not measure the depths with a ruler. On
cross-examination, he testified that the coal dust was "paper
thin" or 1/16 of an inch (Tr. 50).
or. van Dolah's unrebutted testimony is that a dangerous
accumulation of coal dust for purposes of a fire hazard are
such coal dust accumulations which are at least an inch or
two in depth, and that in order to present an explosion
hazardr the coal dust must be capable of being placed in suspension. The unrebutted testimony is that the cited accumulations were cleaned up with rags, and I find Mr. Yazzie's
testimony that the accumulations were "grayish black," "paper
thin," and consisted of a "light dust" similar to ordinary
household dust to be credible.
On the basis of all of the evidence and testimony adduced
in this case, I conclude and find that MSHA has failed to
establish that the float coal dust accumulations cited by
Inspector Shaffer were dangerous within the meaning of section
77.202. I am convinced that Inspector Shaffer's conclusion
that the accumulations were dangerous were based on a rather
cursory evaluation of the circumstances presented to him at
the time of his inspection. He simply observed float coal
accumulated in and around the electrical . compartments and concluded that they were dangerouso He c andidly admitted that he
i s of the opinion that accumulations of coal dust which are
black in color are ipso facto dangerous accumulations.
Unlike underground mandatory'standard section 75.400,
which prohibits accumulations of coal dust in active workings
or on electrical equipment , section 77 o202 prohibits the
accumulation of coal dust only in dangerous amounts. Accumulations which are not dangerous a~'e ~not prohibited . On the
facts of this case, the respond~nt does not dispute the existence of the cited float coal dust accumulations. Its dispute
lies with the finding by the inspector that the accumulations
were dangerous. I agree with the respondent's contention that
in order to establish that such accumulations are in fact dangerous, MSHA must establish that they present a realistic fire
hazard, or that they are susceptible of being placed in suspension in close proximity to~ readily available ignition -source
capable of placing them in suspension, thereby fueling or propagating an explosion. On the facts of this case, I conclude

2104

and find that MSHA has failed to establish either of these
hazards or dangers by a preponderance of any credible evidence.
Accordingly, the citation IS VACATED.
ORDER
In view of the foregoing findings and conclusions, the
section 104(a) Citation No. 2070578, issued on March 6, 1984,
IS VACATED, and this proceeding IS DISMISSED.

A~~Koutr·
-/ d'~
as
Administrative Law Judge

Distribution:
Richard L. Collier, Esq., Office of the Solicitor, u.s.
Department of Labor, 555 Griffin Square Building, Dallas, TX
75202 (Certified Mail)
John A. Bachmann, Esq., The Gulf Companies, Law Department,
1720 s. Bellaire . Street, Denver, CO 80222 (Certified Mail)
/fb

2105

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

22041

December 12, 1985

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

:

CIVIL PENALTY PROCEEDING
Docket No. SE 85-39-M

.
. Big Four Mine
:

AMAX CHEMICAL CORPORATION,
Respondent

A.C. No. 08-00871-05505

.
DECISION

Appearances:

KenS. Welsch, Esq., Office of the Solicitor,
u.s. Department of Labor, Atlanta, Georgia,
for the Petitioner;
William B. deMeza, Jr., Esq., Holland and
Knight, Tampa, Florida, for the Respondent.

Before:

Judge Koutras
Statement of the case

This proceeding concerns a proposal for assessment of
civil penalty filed by the petitioner against the respondent
pursuant to section ·llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 820(a), seeking a civil penalty assessment of $5,000, for an alleged violation of -mandatory safety standard, 30 C.F.R. § 55.11-1.
The respondent filed a timely answer and contest, and a
hearing was conducted in Tampa, Florida, on July 30, 1985.
The parties filed posthearing proposed findings and conclusions, and the arguments presented therein have been considered by me in the course of this decision.
Issue
The issue in this case is whether the respondent violated
the cited mandatory safety standard, and if so, the appropriate civil penalty which should -be assessed for the violation.
Additional issues raised by the parties are identified and
discussed in the course of this decision.

2106

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seg.
2.

section llO(i) of the 1977 Act, 30 u.s.c.

3.

Commission Rules, 20 C.F.R.

§

§

820(i).

2700.1 et seg.

Stipulations
The parties stipulated to the following (Tr. 4-6):
1. Respondent operated the Big Four Mine, a surface
phosphate mine producing products affecting commerce within
the meaning of the Act.

2. The mine has been closed since October, 1984, and
prior to that time worked 131,095 man-hours annually.
3. Payment of the proposed penalty assessment by the
respondent will not affect its ability to continue in
business.
4. The Big Four Mine is a subsidiary of the respondent
Amax Chemical Corporation.
5. Petitioner's exhibit P-1 , a computer print-out,
reflects the respondent 0 s prior history of paid civil penalty
assessments for the period November 19, 1982 through
November 18 , 1984 .
Discussion
This case concerns a fatal accident which occurred at
the respondent 9 s mine on August 28, 1984 . The accident
vi ctim, John F. Mayq an electrician/line worker, was fatally
injured at approximately 7:30a . m., ~hen he came in contact
with an energized connector on top of an electrical substation . The substation was a portable, skid-mounted unit
approximately 9 feet high, with an additional 10 feet of
superstructure extending above the top of the station where
high-voltage insulated connectors were mounted for power taps
which supplied power to certain field slurry pumps.
The victim was electrocuted when he came in contact with
an energized 4,160 volt energized power connector on top of
the substation. The connector was approximately 12 inches
from a deenergized connector where the victim was standing at

2107

the time of the accident. Although a truck equipped with a
hydraulically-operated insulated bucket on an extendable boom
was used to transport the victim and a fellow-worker, James
Dickey, to the work site, and was parked in front of the substation, the victim did not use the bucket, and instead
climbed the structure without the use of a ladder or other
device.
MSHA Inspector Russell Morris conducted an accident
investigation and prepared a report (exhibit P-6). In the
course of his investigation, he issued a section 104(a)
Citation, No. 2382719, with special "significant and substantial" findings, citing a violation of mandatory safety standard, 30 C.F.R. § 55.11-1. The narrative description of the
cited condition or practice is stated as follows in the citation (exhibit P-5):
A fatal accident occurred at this operation -on August 28, 1984, at about 7:30 a.m.,
when an employee contacted an energized
4160-volt bushing, while performing electrical
maintenance. A safe means of access was available, but was not used to reach the top of the
skid-mounted 13,200/4160 volt substation and
superstructure which is approximately fifteen
(15) feet above the ground.
Inspector Morris issued another section 104Ca) Citation,
No. 2382720, that same day, and it charged the respondent
with a failure to guard or deenergize the live connector contacted by the victim. The respondent did not contest the
violation and paid a $5,000 civil penalty assessment for this
violation of 30 C.F.R. § 55.12-66 CTr. 147-148). Section
55.12-66 provides as follows: 11 Where metallic tools or equipment can come in contact with trolley wires or bare powerlines, the lines shall be guarded or deenergized."
MSHA's Testimony and .Evidence
James L. Dickey testified that in August, 1984, he was
employed by the respondent at the Big Four Mine as a first
class electrician. His duties included the service and maintenance of electrical equipment. He confirmed that John May, ·
the accident victim, was also a first class electrician and
that they worked together on the day shift. Mr. Dickey
stated that on August 28, 1984, he and Mr. May were assigned
by chief electrician Harold Jones to survey a job at the
mobile sub-station used to supply power to the lift lines and

2108

water pumps. A "hot" 4160 volt power line connector reportedly had a problem, and he and Mr. May went to the substation
to find the problem and to decide what had to be done to
repair the malfunction.
Mr. Dickey identified photographic exhibits P-2 through
P-4, as the substation in question, and he stated that he and
Mr. May arrived there between 7:00 and 7:30 a.m. They drove
there in the "bucket 11 truck (exhibit R-2) • Since the problem
was in one of the connectors, the circuit providing power to
that connector line was deenergized and locked out, but the
other circuits were not. Mr. Dickey stated that he suggested
to Mr. May that he use the boom bucket on the truck to go up
and look at the problem connector , but Mr. May declined, and
instead climbed up onto the structure to visually observe the
problem. Mr. Dickey believed that the first connector to the
extreme left of exhibit P-3, was the defective connector, but
he was not sure .
Mr. Dickey stated that when Mr. May climbed the structure, he had no tools with him and that he was simply to
observe the defective connector to determine the necessary
repairs. Mr. Dickey stated that when he last observed
Mr. May he had climbed further up the structure and was standing on an I-beam below· the connectors with his hands on the
I-beam above him where the connectors were located (exhibit
P-3). Mr. May had his back to him, and Mr. Dickey did not
observe him performing any work.
Mr. Dickey stated that after observing Mr. May standing
on the I-beam, acting chief electrician Harold Jones and electrician Rex Tadlock arrived at the scene, and they all discussed the proposed maintenance work to be performed. While
this discussion was going on, electrial superintendent
Raeburn Foster arrived and joined in the discussion. At that
time , Mr. Dickey heard a "crackling" sound, and he turned and
saw that Mr ., May was "on the hot circuit 11 with his feet on
the !-beam and his hands on top of the connectors. He then
observed Mr . May fall backwards and iand on top of the structure circuit breakers . In his opinion, Mr. May could not
have fallen to the ground because the !-beam would have prevented him from falling to the rear of the structure to the
ground.
Mr . Dickey estimated that the distance between the connectors was 2 feet, and he also estimated the other distances
and dimensions of the structure. There was 4160 volts leaving the energized connector lines at the top of the structure, and he confirmed that while Mr. May was on the structure

2109

they were discussing the work which had to be done to repair
the defective connector.
Mr. Dickey stated that Mr. May gave no reasons for not
using the truck bucket. Mr. Dickey also indicated that the
accident occurred within 5 minutes of Mr. Foster's arrival
(Tr. 15-39).
On cross-examination, Mr. Dickey reiterated that Mr. May
had no tools with him and did not plan to stay long on the
structure. No supervisor's were present when he first
climbed up the structure, and he believed that Mr. May must
have known that the other circuit was "hot" because they only
deenergized the one that he was observing.
Mr. Dickey stated that when Mr. Foster arrived, he asked
whether or not the power was turned off, and that he (Dickey)
told him that it was. Mr. Dickey could not recall whether
Mr. Tadlock asked about the power.
In response to further questions, Mr. Dickey stated that
the day of the accident was a maintenance day, and that the
entire power-station could have been deenergized without disrupting work. Mr. Dickey stated that he and the other electrician's reported directly to Mr . Foster, and he considered
Mr. Foster to be a very responsible individual who conducted
regular safety meetings.
Mr. Dickey stated that he and Mr. May knew that the
defective connector was loose because the condition had been
reported to the third night shift foreman on the last working
shift, and that he and Mr. May intended to visually observe
what was necessary to repair the connector.
Mr. Dickey stated that there ' were no ladders on the
bucket truck or at the substation. He was of the op~n~on
that had he climbed the structure, he could have observed the
connectors from on top of the circuit breakers. He also confirmed that there was no safety be·l ts on the structure (Tr.
40-64) .

Mr . Dickey was recalled as the court;s witness, and he
stated that the usual procedure was to disconnect or deenergize only the circuit which was going to be repaired. In the
instant case, he explained that since he and Mr. May knew
where the defective connector was located, they only deenergized that circuit. Since ~· Dickey believed that Mr • .May

2110

climbed the structure merely to visually observe the defective connector, they did not believe it was necessary to
deenergize the other circuits.
Mr. Dickey conceded that when he and Mr. May advised
Mr. Foster that the power was shut down, it was reasonable
for him to assume that they had deenergized all of the
circuits (Tr. 186-192).
MSHA Inspector Russell Morris testified as to his background and experience, and confirmed that he is an electrical
inspector and that he conducted an investigation into the
fatal electrocution of Mr. John May on August 28, 1984
(exhibit P-6, MSHA accident investigation report). Mr. Morris
stated that he arrived at the accident site between 11:30 a.m.
and 12:30 p.m., and he identified photographic exhibits P-2
through P-4 as the photographs of the substation which he took
during his investigation.
Mr. Morris stated he used a ladder to climb to the top
of the circuit breaker structure, but that he did not climb
up onto the !-beam. He determined that the third connector
from the left of photographic exhibits P-3 and R-3, was the
defective connector. He also stated that the connector clamp
and bushing had been removed, it appeared that the connector
threads were stripped, and this indicated that Mr. May was
having difficulty removing it. Mr. Morris estimated that the
spacing between the connectors was 12 inches, and he confirmed
that he took no measurements. He also confirmed that
Mr. Dickey's other estimates concerning relevant distances and
locations were fairly accurate. Mr. Morris also believed that
the !-beam Mr. May was standing on was attached to the back of
the structure up-right supports while the I-beam containing
the connectors was attached to the front of the structure.
Under these circumstances, he believed that Mr. May had to
lean his body or hold onto the connector !-beam in order to
reach the connectors with his free hand.
Mr. Morris identified exhibit· ~-6 as a copy of the citation which he issued, and he confirmed that he marked the
citation as a "significant and substantial" violation because
a fatality had occurred, and that it was the result of the
violation (Tr. 64-74).
On cross-examination, Mr. Morris stated that he did not
know for a fact that Mr. May had performed work on the connector or had removed the bushing. He assumed that this was the
case, and he included this assumption in his accident report.

21.11

He conceded that MSHA's "special assessment" narrative findings which state that Mr. May climbed the structure "to remove
a defective electrical connection" and that he performed work
on the connectors, were conclusions taken from his accident
report.
Mr. Morris confirmed that he also issued a citation for
failure to completely deenergize the entire substation, and
it is his understanding that the penalty assessment was paid
(Tr. 74-95).
Respondent's Testimony and Evidence .
Raeburn Foster, testified that he was employed at the Big
Four Mine in August, 1984, as the electrical superintendent •.
He stated that the mine processed raw phosphate but that it
has been closed since October, 1984. When it was operating,
he had 14 electrician's under his supervision. He identified
Harold Jones as a union leadman, and while Mr. Jones was substituting for the regular leadman who was on vacation,
Mr. Jones was not a "management" employee.
Mr. Foster stated that he conducted regular safety meetings with his men, and he confirmed that he has in the past
issued verbal and written warnings for employee safety
infractions.
Mr. Foster identified exhibit R-1 as a photograph of the
substation in question, and he testified as to the dimensional
heights of the structure and equipment shown in the photograph.
He confirmed that he went to the site on August 28, 1984, as
part of his routine site visits. He arrived at approximately
7:30a.m., but was not sure whether he arrived before or after
Mr. Jones and Mr. Tadlock. He also confirmed that the bucket
truck and ladd·e rs are available to the electricians for their
use in their maintenance and repair work.
Mr. Foster stated that when he arrived at the site,
Mr. Dickey was "half-sitting" in and out of the truck and that
Mr. May was standing on the I-beam below the connectors with
one arm over the I-beam where the connectors were located.
Mr. Foster stated that he asked Mr. Dickey and Mr. May whether
the power was turned off, and that they both replied simultaneously "yes sir." Mr. Foster had no reason to believe that the
power was not off.
Mr. Foster stated that shortly after he arrived at . the
site, and shortly after being· a,dvised that the power was off,
he observed Mr. May "slide" or move along the I-beam on which

211Z

he was standing. Mr. May had his back to him, and Mr. Foster
observed him with his arms between the fourth and fifth connectors, heard him "grunt, 11 and observed him fall backward
off the I-beam.
Mr. Foster stated that he had never observed any of his
men climb the substation structure without a ladder, and had
he observed this, he would issue a verbal warning. He confirmed that Mr. May was an experienced electrician, and that
he had never been issued any warnings for safety infractions.
Mr. Foster identified exhibit R-5 as a page from the
employee safety handbook dealing with the proper procedures
for line crews to follow while performing their work. He
confirmed that when Mr. May and Mr. Dickey stated to him that
the power was off, he assumed that all five of the substation
cabinets had been deenergized. Mr. Foster confirmed that he
was not present when Mr. May first climbed up the structure
to the I-beam, and that when he arrived Mr. May was already
on the I-beam. Mr. Foster stated that he was not concerned
about Mr. May falling because he did not believe that he was
"that far up." Mr. Foster believed that Mr. May had received
safety training, and that this training included the use of
the bucket truck.
Mr. Foster stated that when he first arrived at the site
there was some conversation among those present, including
Mr. May, but he could not recall what was said. He conceded
that he was aware of the fact that Mr. May was not using the
bucket, and that he observed no ladder. Mr. Foster indicated
that he did not want to yell at Mr. May at that time because
he did not want to distract him from his position on the
I -beam, but that he intended to reprimand him when he came
down (Tr . 131).
On cross-examination, Mr. Foster stated that the spacing
between the connectors was approximately 12 to 15 inches, and
he believed that when he oberved Mr. May on the !-beam, his
left arm was between the No. 2 and· No. 3 connectors. He confirmed that he did not observe Mr. May take the connector
off , nor did he observe any toois in his possession (Tr. 136).
Mr . Foster stated that while he did not observe Mr. May ·
perform any work while on the structure, he conceded that had
he used the bucket he would have had more freedom to maneuver
about.
Robert Phillips testified .that he is employed by the
respondent as the Director of Human Resources, and he

0(:..,

11')
.

\.)

explained the company's training procedures. He stated that
Mr. Harold Jones was employed as a bargaining unit leadman
electrician and was not considered part of mine management.
At the time of the accident in August, 1984, Mr. Jones was
substituting for the regular shift leadman who was on
vacation.
Mr. Phillips stated that the bucket truck was purchased
at a cost of $150,000, and that it was purchased after the
publication of the company's safety procedures handbook
{exhibit R-5). He confirmed that Mr. May received safety
training and that it included training in safe access. He
also confirmed that the truck bucket was available for use by
all electricians (Tr. 159-165).
Rex Tadlock testified that in August, 1984, he was
employed at the respondent's Big Four Mine as an electrician.
He stated that he reported "a hot spot" on the substation
connector in question, and that this was done at the end of
his shift on Sunday evening, August 26, 1984. He discussed
the condition with Mr. Foster, and since Monday and Tuesday
were maintenance days, Mr. Tadlock was asked to stay at work
to repair the condition. Mr. Tadlock stated that Mr. Foster
instructed him to open the primary circuit switch at the substation where the work was to be done, and that by cutting
off the primary switch, the power to the top connectors would
be cut off.
Mr. Tadlock stated that when he arrived at the substation
with Mr. Jones, Mr. May was standing on the I-beam and was
looking at the terminator and power wire. Mr. Tadlock could
not remember seeing any tools in Mr. May•s possession.
Mr. Tadlock estimated that 2 to 3 minutes elapsed from the
time Mr. Foster arrived and when the accident happened. He
confirmed that Mr. Foster asked whether the power had been
shut off, and that he was told that it was. He also confirmed
that Mr. Foster conducted regular safety meetings with the
men, and that he always informed the men to contact him or the
chief electrician in the event they-encountered any problems
in their work (Tr. 166-172).
On cross-examination, Mr. Tadlock stated that he
reported the connector condition by making a notation on his
time card at the end of his Sunday shift, and that this was
normal procedure. He stated that when he first observed
Mr. May on the I-beam, he was standing in front of the third
connector.

2114

Mr. Tadlock stated that he had never climbed the structure to perform any work, and that in the event he had to go
to the top to perform work he would deenergize all of the
circuit breakers, or the entire substation (Tr. 173-184).
MSHA's Arguments in Support of the Violation
MSHA argues that the workplace to which the respondent's
electrician John May needed access was the faulty third connector at the electrical substation. Since the term "working
place" is defined in section 55.2 as "any place in or about a
mine where work is being performed," MSHA concludes that it
is clear that on the day of the fatality in question, the
faulty third connector was a "working place" within the meaning of the cited standard. MSHA points out that no one,
including the respondent, argues that climbing the framework
of the electrical substation is a safe means of access to the
connectors. In addition to the potential electrical hazard,
MSHA asserts that there is also the danger of falling as much
as 15 feet to the ground or 5 feet to the top of the substation, and it points out that the respondent's own electrical
superintendent agreed that the bucket truck or ladder should
have been used.
Recognizing the fact that the "safe access" standard is
broad in application, MSHA states that it has been found constitutional and not overbroad or ambiguous, citing former
Commission Judge Vail's decision in UNC Mining & Milling,
5 FMSHRC 1164 (June 28, 1983) . MSHA asserts that the req~ire
ment of "safe means of access" must be considered to be a
basic requirement for the protection of an employee ' s health
and safety, and it cites several cases as examples of the
various circumstances, locations and different situations
where "safe access" has been appl~ed, ~·.9.· Texas
Architectural Aggregates, Inc., 2 MSHC 1169 <October 1980) access to cutoff value on diesel storage tank; Homestake
Mining Company , 2 FMSHRC 2295 (August 1980> - low clearance in
passage way; Ideal Basic Industries, Cement Division, 2 FMSHRC
1352 (June 1980) - an employee straddling a moving raw feed
belt conveyor; and, The Hanna Mining Company , 3 FMSHRC 2045
(Rev . Comm . September 1981) - travel underneath an overhead
belt.
MSHA argues that on the facts of this case, "safe means
of access" must be viewed in light of the danger that existed
in gaining access to a faulty electrical connector 15 feet
above the ground, and that "safe access" is meant to include
protection from any potential hazard to an employee in
getting to his work place. MSHA concludes that the hazards

2115

associated with ga1n1ng access to the faulty connector ·
clearly involved the possibility of falls and electrocution.
MSHA agrees that the bucket truck was the safest means
of access to the connectors atop the electrical substation,
and concedes that the truck was used by the electricians to
get to the substation. However, since the truck bucket was
not used to gain access to the faulty connector, MSHA asserts
that the "safe access" required by section 55.11-1, was not
provided or maintained, and that the respondent had a duty to
assure the use of the bucket truck. MSHA maintains that the
respondent's electrical superintendent, upon arrival at the
site, was fully aware that the bucket truck was not being
used by the electricians, and that he remained silent even
though he knew that the accident victim was violating a
company work rule requiring the use of a ladder or staging
when working above ground.
Citing a september 22, 1981, Commission decision in
Secretary v. Hanna Mining Company, 3 FMSHRC 2045, where the
Commission held that an operator is required to make each
means of access to a working place safe, MSHA argues that the
respondent was aware that the accident victim was climbing
the framework of the substation to gain access to the faulty
connector. Therefore, MSHA maintains that the respondent
cannot :claim that there is a reasonable possibility that a
miner would not use the framework as a means of access, and
that the respondent had an obligation to assure that ladders
or other safe means of access were used at the site.
In response to the respondent's argument that it has
already paid a $5,000 civil penalty assessment for failing to
deenergize the substation as required by mandatory safety
standard 30 C.F.R. § 55.12-66, MSHA points out that the accident resulted in the issuance of two separate violations, and
that the respondent may not shield itself from liability for
a violation of a mandatory safety standard simply because it
violated a different, but related standard. El Paso Rock
Quarries, Inc., 3 FMSHRC 35 (Janu·ary 1981): Southern Ohio
Coal Company , 4 FMSHRC 1459 (August 1982).
MSHA concludes that the violation in this case was "significant and substantial" within the test enunciated by the
Commission in Cement Division, National GyPsum Company,
3 FMSHRC 822 (April 1981). In support of this conclusion,
MSHA argues that from the facts established at hearing, there
was a reasonable likelihood that the electrician climbing the
substation to repair the faulty connector could have received
injuries from a fall or electrocution of a "reasonably

2116

serious nature." In fact, he was electrocuted after moving
from in front of connector No. 3 which had been deenergized
to connector No. 5 which had not been deenergized. Additionally, MSHA asserts that the victim was subject to a fall of
as much as 15 feet to the ground or 5 feet to the top of the
substation which also could be considered of a "reasonably
serious nature." The effort exerted by the electrician in
climbing the substation and .his total reliance on his
strength and sense of balance also made a fall reasonably
likely.
MSHA asserts that its $5,000 proposed civil penalty
assessment is reasonable. Relying on Inspector Morris' testimony that the violation of section 55.11-1, may have contributed to the death of the electrician in question, MSHA
concludes that the failure to deenergize the connector was
the principal reason for his death. MSHA asserts that regardless of whether the substation had been deenergized, if the
electrician had used the insulated bucket truck to gain
access to the faulty connector, he would not have been placed
in such a precarious position. His hands, which he had to
use to remain on the !-beam, would have been free, and his
shoulder would not be in close proximity to the energized
connector. Thus, MSHA concludes that the gravity of the violation should be considered serious.
With regard to the question of negligence, MSHA asserts
that the respondent's electrical superintendent was aware of
the violative condition immediately prior to the accident but
remained silent. Since management did nothing to insure that
the violation was corrected, and since its failure to provide
and maintain safe access may have contributed to the electrician's death, MSHA concludes that the violation resulted from
the respondent's negligence.
Respondent's. Arguments
The respondent maintains that the evidence adduced in
this case demonstrates that it provi~ed safe access to the
job site within the meaning of section 55.5-11.1, and that
the actions of the deceased electrician were unforeseeable
violations of his training, the respondent's work rules, and
common sense.
The respondent asserts that MSHA has admitted that safe
access was furnished in this case, and it relies on the statement made by Inspector Morris on the face of his citation
that "a safe means of access- was available, but was not used"
in support of its assertion. - Respondent concludes that MSHA

211 '1

has conceded that safe access was provided at the time of the
accident.
Respondent asserts that it has implemented every reasonable precautionary measure to ensure employees safe access to
its electrical substations. First, it has required a comprehensive safety training program for its mine employees for a
number of years. The program includes training and periodic
retraining in safe access practices, particularly for
employees in the electrical maintenance department, and the
training encompasses operation of the bucket truck. Although
the deceased electrician received that training, he ignored
its precepts on the day of the accident.
Second, respondent maintains that it has enacted and
enforced appropriate work rules requiring employees to utilize safe access procedures in their daily tasks. It routinely disciplines employees for violations of safety work
rules and repeated violations of those rules have contributed
to employee discharges. The deceased electrician received a
copy of those work rules but ignored them on the day of the
accident.
Third, respondent points out that it spent in excess of
$150,000 for an electrial maintenance "bucket" truck that
employees were required to use to obtain safe access to elevated electrical maintenance work. The truck was driven to
the substation on the day in question, but, contrary to
respondent's work rules, his safety training and retraining,
and common sense, the deceased consciously and knowingly
refused to use the truck to reach the top of the substation .
In response to MSHA's assertion that respondent's superintendent Foster was present on the scene at the time of the
accident, and should have assessed the situation immediately
and ordered the deceased down from the substation superstructure and into the bucket truck, respondent points out that
while Mr. Foster did arrive at the accident scene several
minutes prior to the electrocution·, '"it was after Mr. May
climbed onto the superstructure . Since Mr. Foster was present only a few minutes prior to .the electrocution, he could
not have realized nor conducted a thorough investigation to
determine that, contrary to the reports he had received, the
substation's secondary circuit breakers were not totally
deenergized.
Respondent asserts that Mr. Foster gave two logical reasons for not ordering Mr. May· down from his position. First,
the superintendent had observed that his rigid insistence

2118

upon safe procedures had previously caused his employees to
become nervous in his presence. Rather than risk Mr. May's
over-reaction to immediate criticism, Mr. Foster decided that
he would wait until Mr. May completed his brief initial survey and returned to the ground before reprimanding him for
failure to use the bucket truck . Second, Mr. Foster did not
perceive any significant danger to Mr. May. Further, he had
been assured that the substation electrical circuits had been
deenergized and he could observe that Mr. May was only
4-1/2 feet above a solid surface, without any possibility of
falling to the ground.
Citing Judge Carlson's decision in Secretary of Labor v.
Climax Molybdenum co., 2 MSHC 1752, 1753 (1982), vacating an
alleged violation of mandatory standard section 55.11-1,
respondent suggests that a "precautionary steps" test, as
applied by Judge Carlson in Climax is applicable to. the facts
of the instant case. In Climax, Judge Carlson stated that
"since some standards are necessarily broad and therefore
vague, as here, the courts have devised a test for standards
so that the question becomes what precautionary steps a conscientious safety expert would take to avoid the occurrence
of the hazard." Citing the circumstances which existed on
the day of the accident, the respondent argues that they
clearly demonstrate that it could not have taken any additional precautions to provide safe access. Respondent provided equipment, training, work rules, and enforcement of
work rules to ensure that its miners had the ability to implement safe access procedures. Respondent points out that
there was testimony from all electrician witnesses that use
of the bucket truck would not have prevented the accident,
and Mr. May would have been-electrocuted -- even while standing · in the bucket -- if he had contacted a "hot" circuit.
In response to MSHA's assertion that the respondent
failed to provide safe access because Mr. May encountered an
energized high-voltage circuit while at his work station in
the substation superstructure, respondent argues that since
it has established that it provided-safe access from the
ground to the superstructure, the citation can only be sustained if respondent was required but failed to provide safe
access in the superstructure. Respondent suggests that logic
and the law both indicate that MSHA's position is untenable. ·
The respondent asserts that the term "access" is commonly
defined as ua way or means of access" and "the action of going
to or reaching." Webster's New Collegiate Dictionary • . Respondent argues that the commonly-used definition, applied in
light of the regulatory requirement that access be maintained

2119

"to" the working place, implies that the regulation addresses
specific jobsite locations rather than specific jobsite
hazards. Respondent concludes that the plain language of the
regulation does not suggest that it covers hazards at the working place.
Citing Secretary of Labor v. Hanna Mining co., 1 MSHC
2488 (1980) (Broderick, J.); Secretary of Labor v. Erie
Blacktop, Inc., 2 MSHC 1251 (1981) (Koutras, J.) (Applying
30 C.F.R. § 56.11-1>: Secretary of Labor v. Standard Slag
Co., 2 MSHC 1145 (1980) (Koutras, J . ) (same), as representative cases interpreting the " safe access" safety standards,
respondent points out that in each case the standards have
been applied to prohibit hazards encountered by miners on
their way to the work station rather than hazards at the work
station. Respondent maintains that these decisions-are consistent with the regulatory scheme, for if an operator could
be cited for failure to provide safe access every time a
miner encountered a hazard at his working place, every hazard
would generate two citations--one citation for failure to
provide safe access and one citation for the "substantive"
violation (~.g_., failure to guard pinch points). Respondent
concludes that neither the statute nor the regulations
support that practice.
I n response to MSHA's suggestion that the respondent was
required to deenergize the s~b~tati~n pursuant to the safe
access requirement of section 55.11-1, respondent argues that
any such interpretation is an impermissible ex post facto
amendment of that regulation. To the extent that MSHA seeks
to impose a greater duty upon respondent than that required
by the language of section 55.11-1, respondent maintains that
MSHA must do so by amending the regulation. Respondent maintains that even a broad standard cannot be applied in a
manner that fails to inform a reasonably prudent person that
the condition or conduct at issue was prohibited by the
standard.
With r egard to the question of "negligence , respondent
cites the cases of Secretary of Labor v. Marshfield Sand &
Gravel , Inc., 1 MSHC 2475, 2476 (1980) ; Secretary of Labor v.
Warner Co .f 1 MSHC 2446 f 2447 (1980), and Secretary of Labor
v . Peabody Coal Co. , 1 MSHC 1676 (1978), in support of its
argument that miner misconduct will mitigate or eliminate any
negligence chargeable to the mine operator .
Respondent asserts that Mr. May's actions on the day of
the accident clearly fall within the rule set forth in Warner
and Marshfield. Respondent points out that Mr. Mays' failure

2120

to use the bucket truck, his failure to deenergize all circuit breakers on the substation, and his knowing venture into
the area of the energized circuits all constitute aberrational, inexplicable, and almost suicidal conduct which is
not chargeable to the respondent. Respondent concludes that
since there is no evidence indicating that it could have
taken additionar-precautions to prevent the occurrence of
Mr. May's actions, or the tragic consequences, respondent and
its superintendent simply were not negligent. Respondent
concludes further that since it has established that it did
provide and maintain safe access to the electrical substation, access that was reasonable under all the circumstances
existing on the day in question, and since it was not negligent, no violation has been established and the citation
should be vacated.
Findings and Conclusions
Fact of Violation
In this case the respondent is charged with a violation
of mandatory safety standard 30 C.F.R. § 55.11-1, which provides as follows: "Safe means of access shall be provided
and maintained to all working places."
The term "working place" is defined by section 55.2 as
"any place in or about a mine where work is being performed.
On the facts of this case, I conclude and find that the
location where Mro May was standing at the time of the accident was a 11 t-7orking place" within the meaning of section
55.11-l . Although the testimony is not clear that any actual
\vork was being performed by Mr. May when he was electrocuted,
the fact is that he and other members of his work crew were
at the scene to repair a defective connector, and that when
Mr. May climbed the electrical substation structure he did so
in order to evaluate the work which had to be performed to
complete the necessary repairs. Accordingly, I conclude that
ne was performing work while he was•on the structure in
questiono
In this case , the accident victim May climbed the structure and failed to use a truck bucket which was readily avail~
able for his use . He also failed to deenergize all of the
connectors before climbing the structure. Mr. May was an
experienced electrician, was trained in the use of a bucket,
and had used such a bucket in the past. Although a safety
belt or ladder were not available to Mr. May, since he

decided on his own to climb the structure, one can only speculate as to whether he would have used a ladder or belt even
if they were available or provided.
Respondent's view of section 55 . 11-1, is that its application is limited to situations where an employee has to have
access to his work location. Once he arrives at that work
location; respondent believes that what transpires after his
arrival is not cov.ered or encompassed within the parameters
of section 55.11-1. On the facts of this case, respondent's
counsel takes the position that the respondent believed that
the hazard addressed by MSHA was the fact that Mr. May placed
himself in danger of falling when he climbed the structure,
rather than a danger of electrocution. Respondent's counsel
argued that since electrical superintendent Foster was told
that the power was off, it was unreasonable for the respondent to believe that at the point in time, when Mr. May
climbed the structure and placed himself in close proximity
to a live connector which had not been deenergized, that
there was any possibility of his being exposed to an electrical hazard (Tr. 127). Conceding that section ' 55.11-l, was
enacted for the protection of an individual employee, on the
facts of this case, respondent's counsel takes the position
that the hazard against which Mr. May is protected is one of
falling rather than electrocution <Tr. 121>.
Respondent's counsel suggests that in issuing his citation, Inspector Morris perceived an electrical hazard rather
than a falling hazard, but counsel conceded that had Mr. May
fallen from the structure before contacting the live connector, the citation would have been proper (Tr. 121). Since
the inspector issued a separate citation for the respondent's
failure to completely deenergize the live connector which
resulted in Mr. May's electrocution, and since the respondent
has paid a $5,000 civil penalty assessment for this violation, counsel suggests that the respondent has already been
penalized for any "safe access" violative condition connected
with the accident.
MSHA's view is that section 55.11-1, has a broad application which encompasses any hazards to which an employee may
be exposed once he is at his work location, and that the standard is not limited to falling or tripping hazards (Tr. 123) . .
Had all of the connectors been deenergized, and had Mr. May
used a bucket, safety belt, or ladder to gain access to the
connector · which he contacted, MSHA's counsel conceded that no
violation would have been issued (Tr. 126). Counsel believes
that on the facts of this ca-se 1. safe access to Mr. May's work
location was not provided and maintained because he was

2122

exposed to both a fall and electrocution hazard, and that
section 55.11-1, is intended to preclude exposure to both of
these hazardous conditions (Tr. 127).
While it is true that the respondent has paid a civil
penalty for a violation of mandatory safety standard section
55.12-66, for failure to guard or deenergize the connector
located adjacent to the troubled connector which prompted
Mr. May to climb the structure in the first place, and which
resulted in his electrocution when he contacted the live connector, I take note of the fact that section 55.12-66,
requires guarding or deenergization only in instances where
metallic tools or equipment can contact a bare powerline. On
the facts of this case, the testimony is unclear as to
whether or not Mro May had any tools with him at the time he
contacted the live connector, and the witnesses were unclear
as to whether Mr. May was actually performing any work on the
faulty connector when he came in contact with the adjacent
live connector. What is clear is that he used no safety
belt, ladder, or bucket to observe or evaluate the work which
had to be done. What is also clear is that by standing on
the I-beam he had to maintain his balance by holding onto the
beam to which all of the connectors were affixed with his
hands and arms and could not maneuver along the beam with
both hands free. Had he used the bucket, I believe it is
reasonable to assume that he could have observed the defective connector · from a safe distance without the necessity of
placing his hands or body in close proximity to the adjacent
connectors which were not deenergized.
Although section 55 . 11-1 , i s found under a general regulatory section dealing with travelways, and has been applied
in instances dealing with the means made available to a miner
to reach his work station or location, and is not among the
regulatory sections found in section 55.15 which cover such
personal protection requirements such as safety belts and
lines , the intent of section 55.11-l is that an individual be
protected not only from hazards whic~ may be encountered
while he is on his wa y to perform some work, but also to protect him from hazards which may . be encountered while he is
about to perform this work. The use of the phrase "maintaineda in section 55.11-1, suggests that a miner be kept or
preserved from exposure to dangerous or hazardous situations
while he is performing his work duties. Since Mr~ May's
access to the faulty connector in question was a necessary
and integral part of the work which he was required to perform, I conclude that the standard is broad enough to require
that safe access to the connector be provided to him, and
continued, until such time as his work is completed.

2123

I recognize the respondent's fears that any interpretation or application of section 55.11-1, prohibiting hazards
encountered by a miner at his work station, rather than on
his way to his work station will leave an operator vulnerable
to two citations -- one for failure to provide safe access
and one for the "substantive" violation, ~·9.· failure to
guard pinch points. Theoretically, one could probably argue
that the failure to guard a piece of equipment could result
in two citations -- one for the failure to provide a guard . to
preclude anyone from contacting a pinch point, and one for
failure to provide "safe access" on the theory that failure
to provide such a guard does not ensure safe access tq the
unguarded equipment. However, I believe that such determinations should be made .on a case-by-case basis and on the basis
of the specific facts and circumstances presented in any
given case. Further, practically all of the promulgated mandatory standards address specific hazardous situations
covered by substantive regulatory standards. On the facts of
this case, while it may have been more appropriate for the
inspector to cite the safety belt requirements of section
55.15-5, if he believed that Mr. May was in danger of falling, the fact that MSHA seeks to rely on a broad and general
standard such as section 55.11-1, in support of the citation
is not inappropriate.
The respondent's argument that MSHA's suggestion that it
was required to deenergize the substation pursuant to the
safe access requirements of section 55.11-1, is an impermissible ~ post facto amendment of the regulation because such an
interpretation was not communicated to the respondent and
fails to inform a reasonably prudent person that such conduct
was prohibited is rejected. I agree with the respondent that
the test to be applied in interpreting a broad and general
standard is the test enuncitated by Judge Carlson in
Secretary of Labor v. Climax Molybdenum, 2 MSHC 1752, 1753
(1982), that "since some standards are necessarily broad and
therefore vague, * * * the courts have devised a test for
standards so that the question ·becomes what precautionary
steps a conscientious safety expert would take to avoid the
occurrence of the hazard." The Commission followed this
approach in Alabama By-Products Corp., 4 FMSHRC 2128
(December 1982); u.s. Steel Corp., 5 FMSHRC 3 (January 1983>: ·
and Great Western Electric Company, 5 FMSHRC 840 (May 1983).
Relying on the inspector's statement on the face of the
citation that "a safe means of access was available, but was
not used," respondent takes the position that since it provided Mr. May with safe access to his workplace on top of the

2124

substation structure, it was not obligated under the law to
do more than that. Although I agree that the conduct of
Mr. May in climbing the substation structure and failing to
deenergize all of the connectors were contributing factors
which led to his own demise may be considered in assessing
the question of negligence, I cannot conclude that these fac. tors absolve the respondent from liability in this case. The
Commission has held that an operator is liable for a violation of a mandatory standard without regard to fault, and
that when an employee fails to comply with the standard the
operator's efforts towards enforcement or compliance are
irrelevant with respect to the issue of liability.
Mr. Tadlock testified that he discovered the defective
"hot spot" on one of the connectors at the end of his shift
prior to the accident and that he discussed this with
Mr. Foster . Since the following days were maintenance days,
Mr. Foster asked him to work the day of the accident in order
to repair the defective connector. Thus, it seems clear to
me that Mr. Foster was aware of the fact that work was to be
done at the substation in question, and in fact, he
· instructed Mr. Tadlock to deenergize the substation primary
circuit switch feeding power to the top connectors.
James Dickey, Mr. May ' s fellow worker, testified that
Mr. May decided to .climb the substation structure in order to
survey the work which had to be accomplished, and at that
point in time no supervisory employees were at the scene.
Mr. May climbed to the top of the transformer and was standing on the circuit breakers when chief electrician Harold
Jones and electrician Rex Tadlock arrived on the scene.
While Mr . May was on the structure, Mr . Dickey, Mr. Jones,
and Mr. Tadlock were discussing the work to be performed.
While these discussions were taking place, electrical superintendent Foster drove up in his truck and joined in on the
discussion. At that point in time, Mr. Dickey was unaware of
what Mr . May was doing, but when he heard a "crackling sound r "
everyone turned and observed Mr. May "on the hot circuit."
Mr. Dickey assumed that Mr. May had climbed up further to the
top of the grid cage itself and .had positioned himself on the
angle iron beneath the connectors. Mr. Dickey estimated that
the accident occurred within 5 minutes, and possibly less, of
Mr. Foster's arrival (Tr e 44). Mr. Dickey and Mr. Foster
confirmed that Mr. Jones and Mr. Tadlock were not company
supervisors.
Mr. Tadlock testified that on the morning of the accident Mr. Foster was aware of·_the fact that he, Mr. May,

2125

Mr. Dickey, and Mr. Jones were going to work at the substation. Rather than knocking out all of the mine power,
Mr. Foster suggested that they cut the power only from the
primary substation switch where they would be working (Tr.
168-169). Mr. Tadlock did not actually determine whether all
the circuits had been in fact deenergized by Mr. May and
Mr. Dickey before he arrived at the scene, and he simply
asked them whether the power was off (Tr. 183). When
Mr. Foster arrived, he simply asked whether the power was
off, and Mr. Tadlock believed that it was reasonable for
Mr. Foster to assume that the power to all circuits had been
shut down (Tr. 171-172). Mr. Dickey confirmed that Mr. Foster
did not specifically ask whether the power to all of the circuits had been shut off, but simply asked whether the power
was off (Tr. 183). Mr. Dickey admitted that he and Mr. May
cut the power from only the first circuit because they suspected that it was the source of the problem. Since
·
Mr. Dickey believed that Mr. May was simply going to observe
the suspected trouble area, the live connectors adjacent to
the suspected defective one were not deenergized, and
Mr. Dickey stated that in hindsight, Mr . May apparently
forgot that only one circuit had been deenergized (Tr. 187).
While it is true that Mr. May had already climbed the
structure when Mr. Foster arrived on the scene, and that the
accident occurred within minutes of his arrival, the respondent's suggestion that Mr. Foster had no time to react or to
conduct a thorough investigation is rejected.
Mr . Foster admitted that when he arrived at the substation he observed Mr. May on the structure, and that at the
time he (Foster) was aware of the fact that Mr. May was in
v iolation of the proper safety procedures by not using the
truck bucket (Tr . 131, 144). Mr . Foster saw no ladder present, and he confirmed that he engaged in a conversation with
Mr. Dickey, Mr. Jones, and Mr. Tadlock concerning the work to
be performed, and that he also spoke with Mr . May . Mr . Foster
confirmed that·· from his position on top of the structure,
Mr . May could hear the conversation taking place and in fact
joined in on the conversation among the group who were on the
ground (Tr . 143). Mr. Foster also stated that at one time he
observed Mr . May moving along the !-beam in th e direction of
the connectors (Tr . 102-103), and that he also observed him
with his arm over an overhead beam and leaning back, and that
Mr. May was either engaged in conversation with the group of
simply looking back (Tr. 153).
Mr. Foster conceded tha~ : had Mr. May used the truck
bucket he would have had more freedom to maneuver about and

2126

would not have had any need to place his hand over the contactor beam to support himself, and he would have had both
hands free (Tr. 152). Although Mr. Foster stated that he was
not concerned that Mr. May would be seriously injured if he
fell from the structure, he did not rule out the possibility
of a fall. As a matter of fact, he testified that the reason
he did not order Mr. May down from the structure when he
first observed him was that he did not want to upset him or
make him nervous. Mr. Foster stated "if I'd said something,
he might have fell~ I might have contributed to him falling
by jumping on him right there" (Tr. 131). Mr. Foster also
believed that Mr. May would not have been seriously injured
in a fall because he was not that far up the structure and
that in the event of a fall Mr. May would probably have
struck a part of the structure rather than falling straight
to the ground (Tr. 132).
After careful review of the testimony and evidence
adduced in this case, including a review of the photographic
exhibits of the structure, I conclude and find that by climbing the structure and positioning himself on the !-beam,
Mr. May placed himself in a dangerous position. By positioning himself on the structure without the use of a bucket or
safety ladder, he placed himself in danger of falling. I
also conclude and find that by failing to completely deenergize the entire substation and connector circuit breakers
before climbing the structure, Mr. May placed himself in a
hazardous position of being electrocuted in the event he contacted a live connector. While it may be true that the use
of the bucket would not have prevented the electrocution
which did occur, I believe it is reasonable to conclude that
the use of the bucket would have substantially lessened the
chances of Mr. May contacting the live connector. Had he
been in the bucket, it would not have been necessary for him
to hold on to the beam on which the connectors were located,
nor would it have been necessary for him to place his hands
and shoulders between the live connectors to keep his balance
or to prevent his falling from the b~am on which he was
standing.
·
The respondent's suggestion that Mr. Foster did not have
enough time to react to the situation when he first arrived
at the scene of the accident and that Mr. Foster was afraid
to chastise Mr. May for fear of upsetting him is rejected.
On the facts here presented, I conclude and find that
Mr. Foster had ample time to assess the situation and immediately order Mr. May down from the structure. Mr. Foster had
prior knowledge that work was required at the substation.
After his arrival, he joined in on the conversation with the

2127

work crew, including Mr. May. He observed Mr. May moving
about on the I-beam while the conversation was taking place,
and he knew that Mr. May was in violation of at least one
company safety rule. Under these circumstances, I believe
that a reasonably responsible superivisor would have immediately ordered Mr. May off the structure.
I reject any suggestion that Mr. Foster's arrival and
the accident took place simultaneously, or that Mr. Foster
had no time to react. Given the conversations which took
place, and Mr. May's movements while on the I-beam, in full
view of Mre Foster, I believe that Mr. Foster had a duty to
order Mr. May down immediately. Since the normal conversational tone used by Mr. Foster during his discussion with the
crew and Mr. May apparently did not upset Mr. May, I reject
any suggestion that a directive by Mr. Foster in his normal
tone of voice would have upset Mr. May to the point of causing him to fall. It is just as reasonable to conclude that
had Mr. Foster ordered Mr. May down when he first arrived at
the scene and before engaging in conversation with the crew,
Mr. May would not have had the opportunity to maneuver down
the beam on which he was standing, or to position himself
dangerously close to the live connectors.
Respondent's suggestion that Mr. Foster could not have
realized that only one circuit had been deenergized is also
rejected. Mr. Foster had specifically instructed Mr. Tadlock
to deenergize all of the circuits, and when he arrived at the
scene he assum~that this was done, and he simply accepted
the word of those at the scene that the power was off. However , Mr. Dickey knew that all of the circuits were not deenergized, and Mr. Tadlock did not specifically determine whether
or not this had been done before Mr. Foster's arrival.
Although Mr. Foster had previously instructed Mr. Tadlock to
cut the power from all of the circuits, he did not specifically ask whether this had been done, nor did he personally
verify that this had been done (Tr. 155-156). Although he
could have determined that all circuits had been locked out by
simply observing the positioning of the cabinet handles, he
did not look at or observe the handles until after the accident occurred (Tr. 157). Under the circumstances, I believe
that Mr . Foster acted less than reasonably when he accepted
the word of those assembled at the scene that the power was
off. To the contrary, I conclude that a reasonable and prudent person in Mr. Foster's position would have personally
verified that all circuits were deenergized. On the facts
here presented~ cannot conclude that Mr. Foster had to conduct any extensive or thorough ·investigation to ascertain that
his instructions to Mr. Tadlock had been carried out. All

2128

that was required was a specific inquiry by Mr. Foster, or a
visual observation of the cabinet handles.
On the facts of this case, I conclude and find that section 55.11-1 was properly applied to Mr. May's situation.
The failure by Mr. May to avail himself of the truck bucket
placed him in a precarious position approximat.e ly 15 feet off
the ground, and by positioning himself on the !-beam and
maneuvering about without the use of the bucket or a safety
line, in full view of a supervisor, Mr. May exposed himself
to a danger of falling. The fact that he may not have fallen
completely to the ground is irrelevant. Further, the fact
that Mr. May had the bucket available for his use before he
climbed the structure is no defense to the violation. Once
Mr. May climbed the structure and exposed himself to a danger
of falling, superintendent Foster had a duty to insure that
he obtain a safety line or use the bucket. By failing to do
this, I conclude that Mr. Foster acted less than a reasonably
prudent superintendent would act under the circumstances.
on the facts of this case, I also conclude and find that
it was not unreasonable for MSHA to rely on the fact that all
of the circuits were not deenergized to support a violation-of section 55.11-1. I conclude that the failure by the
respondent to insure that all of the circuits were d~~ner
gized provided Mr. May with something less than a safe means
of access to his work . location, and that a safe means of
access was not maintained while Mr. May was on the !-beam
maneuvering himself in such a position as to enable him to
evaluate the work which he had to perform to repair the defective connector. By failing to personally verify that all of
the power was off, I believe that Mr. Foster acted less than
a reasonably prudent superintendent would act under the
circumstances •
. In view of the foregoing findings and conclusions, the
citation IS AFFIRMED.
History of Prior Violations
Exhibit P-4, is a computer ·print-out listing the respondent's mine civil penalty assessment record for the period
November 19, 1982 through November 18, 1984. That record
reflects that the respondent paid civil penalty assessments
for 12 citations, none of which are for violations of section
55.11-1. For an operation of its size, I conclude that the
respondent has a good compli~nce record, and I have taken
this into account in assessiqg .the civil penalty for the citation in question.

21.29

Size of Business and Effedt of Civil Penalty on the
Respondent's Ability to Continue in Business
I conclude that the respondent's Big Four Mine was a
moderately sized phosphate operation, and take note of the
fact that the mine has been closed since October, 1984.
Respondent has stipulated that the proposed civil penalty
assessment will not adversely affect its ability to continue
in business. Under the circumstances, I conclude that the
civil penalty assessment I have imposed will not adversely
affect the respondent's ability to continue in business.
Negligence
I conclude that the violation resulted from the respondent's failure to take reasonable care to insure compliance
with the safe access requirements of section 55.11-1, and
that this failure on its part constitutes ordinary negligence.
As stated earlier in my findings and conclusions, superintendent Foster had a duty to insure safe access to Mr. May's
work location, and Mr. Foster acted less than a reasonably
prudent superintendent would act under the circumstances. In
making this negligence finding, I have taken into consideration Mr. May's unexplained conduct in putting himself in such
a hazardous position by failing to use the truck bucket which
was readily available for his use. I have also taken into
account the conduct of Mr. May, as well as his fellow-worker
Dickey, in failing to completely deenergize the connector
circuits before attempting to "troubleshoot" or perform work
on the suspected defective connector. I have also considered
these factors in mitigating the civil penalty assessment that
I have made for the violation .
I have taken into account the respondent's arguments
concerning its safety work rules, and the fact that Mr. May
received safety training. Mr. Foster quoted from a portion
of the respondent's Employee's Accident Prevention Manual,
exhibit R-5, pg. 67, which reads as •follows (Tr. 112): "One
of the most hazardous parts of your job in working above
ground; therefor, always use a good ladder or staging that is
properly set up. Never use makeshift arrangements."
Mr. Foster stated that the quoted work rule addresses
the situation presented in this case, but I take note of the
fact that the work rules are silent as to the use of a truck
bucket, and aside from the quoted reference by Mr. Foster,
the shop work rules appearin~· on page 68 require the use of

2130

non-conductive ladders for electrical work, and caution
against an employee contacting ground wires or other attachments having ground potential.
Gravity
I conclude and find that the failure by the respondent
to insure safe access to Mr. May's work location constituted
a serious violation of the cited standard. Although
Mr. May's conduct contributed to his own demise, I conclude
and find that the failure to insure compliance with the standard was also a contributing factor to the accident.
Good Faith Compliance
The violation was abated after the respondent conducted
safety meetings with all of its electrical personnel and discussed in detail safe work practices. I conclude that the
violation was abated in good faith.
Significant and Substantial Violation
I agree with MSHA's posthearing proposed arguments that
the violation in this case was significant and substantial
(S&S). The violation resulted in a fatal accident, and I
adopt as my finding and conclusion MSHA's arguments that the
facts here establish that there was a reasonable likelihood
that the electrician climbing the substation to repair the
faulty connector could have received injuries from a fall or
electrocution of a nreasonably serious nature." Although the
facts establish that a fall did not result in the electrician's death , i t has been established that he was electrocuted . Accordingly f the inspector ;s S&S finding IS AFFIRMED.
Penalty Assessment
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 ··a ~ivil penalty assessment
in the amount of $2 , 500 is appra,priate and reasonable for the
section 104(a) Citation No. 2382719, issued on August 28,
1984.
ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $2,500 for the vio~ation in question, and payment

2131

is to be made to MSHA within thirty (30) days of the date of
this decision and order. Upon receipt of payment, this case
is dismissed .

/ ,/./

/~

1 //~

tfl,)~

./ ~If'~
Koutras
Administrative Law Judge
Distribution:

Kens. Welsch, Esq. , Office of the Solicitor, u . s. Department
of Labor, Room 339, 1371 Peachtree Street, N.E., Atlanta, GA
30367 (Certified Mail)
William B. deMeza, Jr., Esq., Holland & Knight, Post Office
Box 1288, Tampa, FL 33601 {Certified Mail)
/fb

2132

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

DEC 12 1985DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
F. FREDERICK PANTUSO, JR .,
Complainant

Docket No . WEVA 84- 193- D
MSHA Case No. HOPE CD- Q1 - 33
No. 28 Mine

v.
CEDAR COAL COMPANY ,
Respondent
DECISION
Counsel:

Before:

y

Covette Rooney, Esq . , Office of the Solicitor ,
u. S. Department of Labor, Philadelphia , Pennsylvania, for Complainant;
Joseph M. Price , Esq. , Robinson & McEl wee ,
Charleston, West Virginia, for Respondent.
Judge Steffey

Explanation of the Record
The complaint in this proceeding was filed on April 26 ,
1984, by counsel for the Secretary of . Labor pursuant to section lOS(c) (2) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(c) (2) . A nearly identical complaint
was filed on September 6, 1983, before the West Virginia
Coal Mine Safety Board of Appeals. . A 9- day hearing before
the 'WV Board was held on October 11 , 24 , 26, 27, 29, November 16, 17, 21 , and December 2, 1983, resulting in 1 , 116
pages of transcript and 36 exhibits, of which 17 were

1/ I have used the term 11 COunsel 11 above , instead of the customary term "appearances", because I am deciding this case on
the basis of a record which resulted from 9 days of hearing
before the West Virginia Coal Mine Safety Board of Appeals.
Ms . Rooney did not appear before that Board and no hearing
has been held before me . An attorney named Roger D. Forman
appeared before the WV Board- on behalf of Mr . Pantuso .
Mr. Price appeared before the ·wv Board on behalf of Cedar
Coal Company and he also represents Cedar in this case.
Mr . Forman is not involved in representing Mr. Pantuso in
this proceeding .

9 -i \(Jf)v
,....,

marked as complainant's 2/ exhibits, 12 were marked as respondent's exhibits, and-7 were marked as the Board's exhibits. The Board also received in evidence a statement
by Ed Ramsey, a senior pit foreman, but the Board did not
give the statement a specific exhibit number (Tr. 436-437).
The Board excluded Complainant's Exhibit 5 and it does
·n ot exist in the copy of the record which is before me (Tr .
280; 803). The Board reserved Board Exhibit No. 2 (Tr . 650}
for the purpose of .receiving in evidence a miner's manual
which was to be supplied by witness Gary Browning, but that
exhibit was never thereafter discussed and there is not a
Board Exhibit No. 2 in the copy of the record supplied to me.
The pe~son- or persons who transcribed the record prepared neither an index of exhibits nor an index of witnesses. Moreover, the transcript was not bound in folders
and consists .of a 5-inch stack of transcript pages which
must be handled like reams of paper which one is stacking
in a duplicating machine. For the Commission's convenience,
in the event a petition for discretionary review is granted,
an index of the witnesses is given below:
Witnesses

Transcript Pages

Robert H. Bess, UMWA Field Representative
William Bolts Willis, UMWA Safety Repre- ·

19 to 60

sentati ve ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Patsy Pauley, Security Guard •.•...••..••.•..
Fortunato Frederick· Pantuso, · Drill Helper ..•
Lester Kincaid, UMWA Inspector •. ••.• •...•.••
Richard Brown, West Virginia Surface Mine
In spector .. . .... . ....... ... . .. ..... . ... .. .

Billy J. Christian, Loader Operator . .••.•.••
Robert DeWeese, Dozer Operator .. •.• • • ..••...
Gary Browning, Drill Operator •••.• ~ ••• ••••• .
Ed Ramsey, Senior Pit Foreman

0

•

•

•

0

•

•

0

•

•

•

•

•

•

•

.

Charles Gordan Wiseman, WV Surface ·Mine

Inspector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

60 to 95
95 to 99
108 to 236
243 to 269
270 to 305
306 to 311
311 to 327
328 to 354;
633 to 719
372 to 486;
490 to 494
495 to 557

William Lane, Mechanic and Mine Committeeman .•••..••.•.•.•..••••••... • ••..••••••

558 to 579

Jerome Lee Workman, Jr., Core Drill Crew
Foreman .••.•.• •• . . .•..•.••. . •. •• ....•••••••

Darlene Harmon, Secretary ••••....••••••••••.

602 to 629
721 to 726

2/ They are actually marked a_s ~'Petitioner's" exhibits, but
I am referring to them as "Complainant's exhibits in order
to be consistent with the terminology used in our proceedings.
11

')lr.' 4

-

u

Harper c. Evans, Surface Mining Engineer ••••
Emory Ray Neely, Security Officer •••••••••••
James Steven Mink, Safety Inspector for
Cedar Coal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Burl Allan Holbrook, Senior Pit Foreman .••..
Allan E. Tackett, Senior Pit Foreman ••.••.••
Leonard Acree, Grader Operator .•.•.••••••••.
Jerry Wesley Deems, Personnel Manager •.•••••
Meredith E. Kirk, Manager of Surface Mines •.
William Ray Frame, Maintenance Foreman ••••••

727 to 780
782 to 791
794 to 883
884 to 948
949 to 1002
1003 to 1008
1009 to 1018
1020 to 1072
1073 to 1080

It should also be noted that Respondent's Exhibit 3 is
a mine map which was the subject of testimony by many of the
witnesses. The copy of R Exhibit 3 submitted with my copy
of the record was not reproduced so as to show the colors
of markings made by some witnesses. The original copy of R
Exhibit 3 had an access road to a drill bench marked in
yellow, whereas the copy of R Exhibit 3 submitted to me
shows the access road in purple. A great deal of the testimony
refers to the "left" bench or pit and to the "right" bench
or pit. The Chairman of the WV Board aptly described the
left bench or pit as resembling a snake and described the
right bench or pit as resembling a roc~ (Tr. 733). Therefore, some of the transcript shows adoption of the Chairman's description of the left bench or pit and refers to it
as the "snake pit". Nearly all of the testimony is related
to events which occurred in· the left pit.
A final word of explanation about the exhibits should
be made.
Inspector Wiseman and witness Bess made some
photographs. Those photographs were reproduced for my copy
of the record simply by using the duplicating machine for
that purpose. Even the original photogr-aphs were described
by the witnesses as being of poor quality (Tr. 277; 772;
1036). Therefore, it is not surprising that the copies of
those photographs provided as a part of the record before me
are absolutely worthless and the considerable amount of
testimony related to them is likewise worthless. Some
photographs were marked as Board Exhibit lA, etc., some were
marked as Exhibit 14A, etc., and others were marked as Exhibit 15. I have physically placed them in the manila
folders marked "Board's Exhibits", and "Petitioner's Exhibits" but they were not marked with any exhibit numbers
when I received the record and it is impossible to determine
from the descriptions in the record which picture any witness is talking about on any occasion . Therefore, for the
aforesaid reasons, I find that the photographs are useless
for making any findings of fac~ in this proceeding.

91'.11"
,._,
\ .Ju

Use of the Above-Described Record for Renderin
~n T ~s Procee 1ng

the Decision

After I had issued a prehearing order on J u ly 3 , 1984,
received a conference call on July 27, 1984, from counsel
for the parties explaining that Pantuso had initiated four
different kinds of proceedings against Cedar involving four
different agencies or courts. At the time of the conference
call, a decision had been rendered in only one of t he four
proceedi ngs and that was an arbitration decision which was
favorable to Cedar except t hat the arbitrator held that a
90 - day suspension , rather than discharge, was a reasonable
disciplinary action (C Exh. 2). At the time of the conference call , the hearing before the WV Board had been complet ed and had been recorded on 67 cassettes, but no tran script of that hearing had yet been made .
Therefore, the
parties requested that they be permitted to examine the
transcript of the hearing held before the Board as soon as
i t could be obtained with the possibility that they would
be able to enter into some stipulations which might avoid
the holding of an additional hearing before me .
I granted
t he parties an extension to January 15 , 1985 , within which
to obtain and examine the transcript of the hearing held
before the WV Board. ·
I

On January 18, 1985 , counsel for the parties p l aced
another call with me in which i t was explained that t he
transcript of the hearing before the WV Board did not become
available until the middle of January and that an additional
60 - day extension of time was needed for the Secretary's
counsel to examine the lengthy transcript which had just
become available.
I then granted a further extension of
time to April 1 , l985o
Thereafter, I received a copy ·o f a letter written on
April 11, 1985 , to the Secretary's counsel indicating that
the parties had been unable to agree upon any stipulations
and had decided to submit the case to me for decision based
upon the entire record before the WV Board .
Although counsel for Cedar had requested that a copy of the record be
made for both me and the Secretary's counsel, only a copy
for the Secretary's counsel was made and i t was not until I
wrote a letter to counsel for the parties on July 25 , 1985,
that they became aware of the fact that the Board had not
yet provided me with a copy of the record, even though the
Secretary'~ counsel had received a copy in early June 1985 .
A copy of the record was finally mailed to me on August 27,
1985 .
.
On that same day, August 27, 1985 , I issued an order
outlining the matters to be discussed in the parties' briefs

2.13 6

and providing for simultaneous initial and reply briefs to
be mailed on October 11, 1985, and October 31, 1985. Thereafter, I issued on October 4, 1985, an order granting a request for extension of initial and reply briefing dates to
November 12, and 29, 1985.
The parties have agreed to have me decide the issues in
this case entirely on the basis of the record resulting
from the hearing held before the WV Board. In one of the
conference calls, I suggested to counsel ~hat it might be
unwise for me to try to decide a complicated case based on
a record before another agency because it would deprive me
of the opportunity to observe the demeanor of the witnesses
for determining credibility and would prevent me from being
able to ask any clarifying questions. My reluctance to
agree with their decision to use the WV Board's record was
overcome when counsel pointed out to me that a hearing before me would be associated with about 5 weeks of hearing
because each counsel would .attempt to test the credibility
of nearly all witnesses by use of their testimony previously
given before the WV Board. Therefore, I have agreed to use
the record before the WV Board to decide the issues in this
proceeding. Much of my decision rests on a finding that
Pantuso and his primary supporting witness, Browning, gave
tes~imony which must be greatly discounted as being incredible. Since my credibility findings are not accompanied by
an opportunity to observe the demeanor of the witnesses, I
recognize that the Commission, if i t is so inclined, could,
upon review, disagree with my credibility findings, although
I have been analyzing transcripts of hearings since 1956 and
feel that I am relatively skilled in that endeavor.
Briefs
Counsel for Pantuso filed her initial and reply briefs
on November 12 and November 29, 1985, · respectively. Counsel
for Cedar filed his initial and reply briefs on November 14
and November 29, 1985, respectively. Both counsel complied
with my order of August 27, 1985, by discussing the criteria
which the Commission uses in determining whether a violation
of section 105(c) (1} of the Act has occurred. In Jack E.
Gravely v. Ranger Fuel Corp., 6 FMSHRC 799, 802 {1984}, the
Comm1ssion restated those criteria as follows:
Under the analytical guidelines we established in Secretary on behalf of Pasula v. Consolidation Coal Corp., 2 FMSHRC 2786 (1980)-,-rev'd on other ~rounds sub ~· Consolidation
Coal Corp. v. Marshall, 663 F.2d 1211 (3d Cir.
1981}, and Secretary on behalf of Robinette v.
United Castle Coal Company, 3 FMSHRC 803 (1981),

a prima facie case of discrimination is established if a miner proves by a preponderance of
the evidence (1) that he engaged in protected
activity and (2) that some adverse action against him was motivated in any part by that
protected activity. If a prima facie case is
established, the operator may defend affirmatively by proving that the miner would have
been subject to the adverse action in any
event because of his unprotected conduct alone.
The Supreme Court recently approved the National
Labor Relations Board's virtually identical
analysis for discrimination cases arising under
the National·Labor Relations Act. NLRB v •
,
. Transportation Management Corp.,
~S .
76 L.Ed 2d 667 (1983) . See also BOich v.
FMSHRC, 719 F . 2d 194 (6th Cir:-1983) (specifically approving the Commission's Pasula-Robinette
test).
Findings of Fact
on the basis of a detailed and extensive analysis of
the testimony in this proceeding , I find that the credible
evidence establishes the following essential facts. My
reasons for rejecting Pantuso's and Browning's version of
the statements which occurred on September l , 1983, at the
time Pantuso was suspended subject to discharge are explained
in considerable detail in the portion of this decision which
hereafter appears under the heading of ''Consideration of the
Parties' Arguments".
l. Fortunato Frederick Pantuso, the complainant in
this proceeding, was a helper to the operator of a surface
drill at the No. 28 Mine of Cedar Coal Company (Tr. 108).
Cedar, at the time of Pantuso ' s discharge, was involved in
the production of coal which entered or affected interstate
commerce and was, therefore, subject to the Federal Coal
Mine Health and Safety Act of l977···and to the regulations
promulgated thereunder. Jurisdi~tion is alleged in paragraphs 3 and 4 of Pantuso's complaint and admitted in Cedar's
answer to the complaint.
2. Pantuso was a helper for Gary Bro~~ing who operated
the drill in the left pit for the period from August 22 to
September 1, 1983 (Tr. 111; 328- 329). Pantuso had worked
for Cedar for about 7 years and he had been a safety committeeman for Local 1766, UMWA, ;or about 2 or 3 years prior to
his discharge and had been an alternate safety committeeman
for several years prior to that {Tr. 108-109). Browning was

2188

an alternate safety committeeman and both Pantuso and Browning were very active in reporting alleged safety violations
to Cedar, UMWA , the West Virginia Department of Mines, and
the Mine Safety and Health Administration (Tr. 122; 126-127;
152-158; 329; 338-339; 341-342).
3. Nearly all of the testimony in this proceeding
deais with events which occurred in the left and right pits
of Cut No. 28. Pantuso and Browning, however, worked only
on the left drill bench during the 2 weeks preceding Pantuso's
discharge~
The work in Cut No. 28 was under the supervision
of three senior pit foremen, Burl Holbrook, Ed Ramsey, and
Allan Tackett. All three pit foremen were equal in rank and
they shared responsibility for all operations in Cut No. 28,
subject to the overall supervision of Meredith Kirk who was
manager of surface mines. While the senior pit foremen were
equal in rank, they had a loose division of work responsibility.
Since Holbrook had been in charge of opening Cut No . 28, he
worked on the topmost productive area in Cut No. 28 and
assigned the work each day from a portal which was normally
referred to as Burl's (or Holbrook's) portal (Tr. 372-374;
884; 891; 1040; 1050). Ramsey had been working for Cedar
longer than Holbrook and Tackett and Kirk considered. Ramsey
to be his liais9n man for directing the work in Cut No. 28
(Tr. 1049}. Tackett had some blood clots in his legs and
was off from work from August 9 to August 29 and reported
back to work on August 30 (Tr. 950}. Since Tackett had not
worked in Cut No. 28, he performed various types of supervisory duties, depending upon the circumstances existing
at any particular time.
Ramsey had primary responsibility
for the so-called mid-level producing area and shared with
Holbrook responsibility for directing work in the utmost
bottom pit of Cut No. 28 (Tr . 373-374).
4. All supervisory and union employees working in Cut
No . 28 · reported for work by passing · through the Chelyan Gate
where a guard wrote on a form the exact time when each employee 9s vehicle passed through the gate (Tr. 95-97) . The
supervisory personnel drove company··vehicles which were
numbered and union employees drove their own vehicles which
had affixed to them an employee sticker number assigned by
Cedar. The guard at the gate had a list of all the numbers
assigned to Cedar's vehicles and a list of numbers assigned
to union employees' vehicles (Tr. 782-785) .
It is possible
to determine exactly when any person reported for work by
ascertaining that person's vehicle number and noting his or
her time of passing through the Chelyan Gate (Tr. 786; R .
Exh. 10). There is a sign at :the gate which directs all
vehicles to stop so that the vehicle numbers may be noted by
the guard, but a complete stop is not required provided the
driver of the vehicle slows down enough for the guard to

21.39

.ascertain the number of the vehicle as it passes through the
gate (Tr . 789) . Pantuso refused to slow down sufficiently
for the guard to obtain his vehicle number so that it was
necessary for the guard to report Pantuso to the head security
guard who in turn reported the matter to Cedar's personnel
manager , Deems (Tr . 788). Deems reported the problem first
to Kirk and then requested the assistance of UMWA ' s field
representative, Bess, who succeeded in getting Pantuso to
slow down sufficiently for the guard to obtain his vehicle
number as he entered the Chelyan Gate (Tr . 1010) .
5. After the employees working in Cut No . 28 enter the
Chelyan Gate, they have to drive 9 miles to reach the portal
where they are assigned to their specific jobs for the day
(Tr . 1011) . There is a parking lot at the portal where the
employees may leave their personal vehicles and be trans ported in a vehicle belonging to Cedar to their specific
working sites (Tr. 954). Employees are allowed to drive
their personal vehicles to their working sites if the roads
over which they travel are considered free enough from mud
and rough places to permit them to reach their working sites
without experiencing damage to their vehicles (Tr . 310- 311;
395 - 396; 485; 895; 953; 1030). One miner's personal vehicle
was damaged by a rock going through a cab window (Tr . 460}.
On another occasion, a dozer operator was traveling with his
blade in a raised position up a ramp and failed to see an
employee's vehicle which had been driven to his working
site. The result was that the dozer did serious damage to
the vehicle (Tr. 484} . After that, Cedar adopted a policy
of allowing employees to drive their personal vehicles to
their working sites only if the supervisors approved it .
Kirk took the position that the supervisor, by approving an
employee's practice of driving to his working site , was
responsible for any damage which that vehicle might incur
(Tr. 1062-1063).
6. Although Pantuso liked to drive his Jeep to the
left drilling bench where he was working (Tr. 134}, he had
not always driven it to the left bench (Tr . 120), and he had
previously filed a grievance on behalf of himself and others
in which he sought to be reimbursed for damage caused to his
vehicle by driving i t to work over rough roads (Tr . 154;
965; C Exh . lOF} .
His vehicle was inspected for damages by
the security officer (Tr . 789) and Pantuso admitted that his
Jeep was not damaged (Tr . 159}. He also requested in his
grievance .that Cedar provide him with a rental car for the
purpose of driving to work in the event his personal vehicle
should be damaged and have to -be. taken to a garage for
repair (Tr. 161). Since Cedar was required by article
XXI(a) of the NBCWA to provide all employees with transportation from the portal to their work·ing sites (Tr . 1012;

2140

C Exh. 13), management was reluctant to allow Pantuso to
drive his Jeep to the left bench when the roads were in a
rough or muddy condition because of the grievance he had
filed seeking damages if his vehicle should be damaged by
driving it to his working site . Water came out of the
mountain and ran in three places across the access road
which Pantuso had to travel in driving his Jeep to the left
drilling bench (Tr . 166; 333; 952). Pantuso constantly
complained about the muddy condition of the road leading to
the left bench. He admitted that even though the company
often used a dozer or grader to scrape the road into a
smooth condition , the road reverted to its previous muddy
and rutted condition as soon as one or two vehicles passed
over it (Tr. 196) .
7 . The significant events preceding Pantuso's discharge
on Sept ember 1, 1983, occurred on the 2 days preceding his
discharge, that is, August 30 and 31, 1983 . Pantuso and
Browning , the drill operator , rode to work together in
Pantuso's Jeep (Tr. 351). On August 30 they were late for
work as usual (Tr . 167} , but Pantuso explained that " [ T]he
reason we do get to work about every day late is because the
company doesn't require us to go to work until daylight,
that's why we have always gotten there pretty late and
nothing was ever said" (Tr. 133). While the lights on the
drill to which Pantuso was assigned had plenty of illumination to enable him and Browning to see the drill itself and
operate the drill , its lights did not shine high enough upon
the embankment near the drilling bench to permit them to see
the exact condition of the 15- foot highwall and embankment
until about 6 : 45 or 7 a.m. when sufficient daylight became
available to make the condition of the embankment readily
observable (Tr. 133; 236; 335; 951) .
8. On August 30 it was foggy early in the morning and
Pantuso and Browning sat in the Jeep at the portal until
about 6:45 a . m. before even attempting to drive to the left
drilling bench (Tr. 127; 951). Their excuse was that it was
too foggy to see to drive the short·-distance from the portal
to the drilling bench despite the fact that they had just
driven 9 miles in dark and foggy conditions from · the Chelyan
Gate to the portal (Tr. 167; lOll) . They complained to both
Tackett and Ramsey about the muddy and rough condition of
the road which they had to travel to get to the drilling
bench (Tr. 127; 410). Toward the end of the shift they
observed a truck driver named Harold Hall who had returned
from the hospital after getting an examination to determine
whether he had suffered any il'l effects from having been
exposed to fumes in the cab of - the R-50 Euclid which he had
been operating (Tr . 128; 1042) . Hall was sent to the hospital
twice but the examinations at the hospital showed that he

2141.

had nothing discernibly wrong with him (Tr. 853). Pantuso
asked to see the preshift report which Hall had made on his
truck that day and Pantuso became involved in an argument
with Holbrook and Tackett over Pantuso ' s claim that the
senior pit foremen were required to pick up the preshift
reports each morning before any of the equipment was put
into service. Holbrook expressed doubt as to Pantuso's
claims, but after he had read the applicable West Virginia
regulations on the subject, he found that Pantuso was correct (Tr . 128; 251; 333-335; 338-339; 413- 414; 635). On the
evening of August 30 Pantuso called Bolts Willis, a UMWA
safety representative, at horne to advise him that he was
coming by his office the next day to report some alleged
safety violations so that Willis could request that the
alleged violations be checked by a West Virginia inspector
(Tr. 132) •
9. It is customary for Kirk to have a meeting of all
foremen on every other Tuesday and one of those meetings was
he l d on Tuesday, August 30 (Tr. 415; 884; 953). Among the
things discussed at the meeting was the fact that several
employees, including Pantuso and Browning, were reporting
late for work (Tr. . 953). Kirk ordered the foremen to noti fy
all employees that if they continued that practice , they would
not be allowed to work on any day they were late (Tr. 133;
636; 953) . Another matter discussed at the meeting was the
fact that complaints had been received about the rough condition of the access road to the left bench in Cut No. 28 and
Kirk recalled that Pantuso had filed a grievance on behalf of
himself and others requesting payment for damages inflicted
to vehicles as a result of driving them to their work sites
(Tr. 154; 965; C Exh. lOF). Therefore, Kirk ordered the
foremen to transport miners to their work sites if road conditions might damage their vehicles (Tr. 1023) .
10. On Wednesday, August 31, Holbrook took some miners
to their working places. Since Pantuso and Browning had not
yet reported for work at the portal, he asked Tackett to wait
for them at the portal and take them to their working place
on the left bench in the truck which had been assigned to
Tackett by Cedar. When Pantuso and Browning arrived, Tackett
first advised them that if they were late again they would
not be allowed to work (Tr. 954) . He then asked them to get
into his truck and he would take them to the left bench.
Pantuso refused to get into Tackett ' s truck and stated that
he would drive his Jeep to the left bench. Tackett then
gave Pantuso a direct order t o get into his truck , but
.
Pantuso again refused. Tackett thereafter gave him a second
dir ect order to get in his truck and Pantuso refused for a
second time . A mine committeeman named William Lane happened to overhear the orders and refusals and asked Tackett

to let him talk to Pantuso privately. In a private conversation, Lane explained to Pantuso that it was advisable for
him to obey the direct order and then file a grievance
alleging discriminatory treatment because Cedar allowed some
miners to drive their own vehicles to their working places .
Pantuso agreed to follow Lane's advice and he and Browning
got into the truck with Tackett, but Pantuso filed a grievance alleging discriminatory treatment by Cedar (Tr. 134;
559-560; 636).
11. On August 31, during the short ride with Tackett
from the portal to the left bench, both Pantuso and Browning
continued to make oral complaints . They noted that the access
road was still rough and muddy. They requested that a light
plant (generator) be provided on the bench to direct light on
the embankment near the drill bench because they were being
transported to the bench before it became daylight. They
wanted to know if Tackett had preshifted his truck although
i t was one which Tackett drove back and forth to work and
which was regularly inspected by the State of West Virginia.
They objected to Cedar's failure to have berms even at
places where drains were being installed. They also claimed
that they had no way to communicate with the mine office in
case of injury and contended that an ambulance would be
unable to get to the bench in case of an emergency . They
additionally wanted to know why Pantuso could not drive his
Jeep to the left bench and Tackett explained that Cedar:
believed the rough and muddy road about which they were
complaining might damage Pantuso's Jeep (Tr. 135-136; 171173; 341-342; 636; 955-956}.
l2o When Pantuso and Browning preshifted their drill
which had been brought to the left bench from another area,
they enumerated a large number of items which needed routine
maintenance and listed other items, : some of which were
already being repaired (Tr . 336-337; R Exh . 4}. A mechanic
named Frank Wright and his helper, Steve Donato, who was
also a UMWA safety committeeman, came to the left bench and
worked on the drill assigned t0 Pan·tuso and Browning for
most of the day (Tr. 425; 636; 687; 957-958}. Consequently,
Pantuso and Browning had nothing to do but talk about alleged safety violations to their supervisors. One action
taken by Browning was to wave for his foreman, Ramsey , to
come to the bench. When Ramsey arrived, Browning asked him
to transport him to a portable toilet which was located a
short distance from the bench. Ramsey did so, but as soon
as he had brought Browning back to the bench, Pantuso also
asked to be taken to the toilet . . Ramsey refused ·because he
felt that they were deliberately harassing him. Even Pantuso admitted that the toilet was no more than a half mile

away, while Ramsey and Tackett said it was not more than 165
to 300 yards from the place where the drill was situated
(Tr. 136; 168- 169; 173; 425; 655-656; 963). In any event,
Pantuso added to his list of complaints the failure of Cedar
to provide a portable toilet on the left bench where he was
working.
13. At various times during the day on August 31
Pantuso and Browning discussed alleged safety violations
with Ramsey and Tackett. During one of the discussions,
Pantuso stated that the material falling from the embankment
and 15- foot highwall, along with the lack of a short-wave
radio for communication , poor access road, failure to provide a light plant or generator on the bench, and lack of a
portable toilet on the bench were grounds for a double withdrawal under article III"(i) of the National Bituminous Coal
Wage Agreement (NBCWA) 3/ (Tr. 136) . A "double withdrawal",
according to Pantuso, means that "as a safety committeeman,
I have the power to danger that area off and withdraw all
the people out of that working area" (Tr . 137) . Pantuso
admitted that Ramsey never did reply to his claim that he
could withdraw and he stated that he was "pretty sure [Ramsey] understood it" (Tr. 137). Browning l"ikewise agreed
that if Ramsey heard the alleged threat of a double withdrawal , he gave no response to it (Tr. 342-343).
14 . On Thursday , September 1, 1983, Pantuso and Browning arrived at the portal about 5:55a.m. (Tr. 142; 351).
There are six steps leading into the trailer which constitutes
the portal (Tr . 959) . Pantuso was at the top of the steps
(Tr. 142) and Browning was just inside the door of the
portal when Ramsey started up the steps (Tr. 441; 643).
Ramsey stated that Pantuso was going to be working with
another drill operator, Charles Wiseman (also known as "Sug"),

.

3/ "(1) No Employee will be required to work under conditions
he has reasonable grounds to believe to be abnormally and immediately dangerous to himself beyend~ the normal hazards inherent in the operation which could reasonably be expected to
cause death or serious physical harm before such condition or
practice can be abated. When an Employee in good faith believes that he is being required to work under such conditions .
he shall immediately notify his supervisor of such belief and
the specific conditions he believes exist. Unless there is a
dispute between the Employee and management as to the existence of such condition , steps shall be taken immediately to
correct or prevent exposure to . s_u ch condition utilizing all
necessary Employees , including the involved Employee."
[Paragraphs 2 through 5 of article III(i) provide detailed
procedures to be followed when there is a disagreement as to
whether an imminent danger exists.]

that morning (Tr. 143; 959). Pantuso wanted to know why he
was being switched to work as Wiseman's helper instead of
Browning's and Ramsey explained to Pantuso that he had previously acted as Wiseman's helper and they had performed well
together and that he believed i t was desirable to assign him
again to work with Wiseman (Tr. 442). Ramsey also stated
that Pantuso would be transported to his working site, but
Pantuso refused that suggestion, saying that he would drive
his own Jeep (Tr. 960). Holbrook was inside the portal and
heard Pantuso say that he would take his own .Jeep. Since
Holbrook had heard about Pantuso's refusal to ride with
Tackett on the previous morning and had been critical of
Tackett's handling of that refusal, Holbrook stated in no
uncertain terms that Pantuso would be given a direct order
to ride in a Cedar-owned vehicle to his working place (Tr.
886). It was then about 5:58a.m., so Browning reminded
Holbrook that he couldn't give direct orders yet as i t was
not starting time (Tr. 143; 648). Holbrook agreed and said
that he would give Pantuso a direct order after he had held
a safety meeting which had been postponed from the first
part of the week because the generator for the portal had
not been working (Tr. 441; 886}.
15. It was necessary for Holbrook to ask the miners to
be quiet while he conducted a safety meeting pertaining to
the use of hard hats (Tr. 892). Browning observed that Holbrook was one of the worst offenders in that respect and
stated that he ought to wear a hard hat while conducting a
meeting on that subject (Tr. 352). Only 6 minutes were
required for Holbrook to read the materials which had been
prepared concerning hard hats. When Holbrook had finished
h is safety talk, h e asked if there were any questions. No
one responded. Browning then asked if there were any safety
problems to be raised and no one replied to his question
(Tr . 352; 960). At that point, Holbrook said to Pantuso
that he was giving him a direct order to get in the truck
with a foreman and be transported to his working site.
Pantuso r efused the order and stated that he would take his
own Jeep . Holbrook gave Pantuso a .$econd direct order to
get i n the truck and Pantuso refused that order also. By
that time , Holbrook ~.,as clearly a·gitated and walked over to
the top o f the stairs and stated that he was giving Pantuso
one more direct orde r to get in the truck with Tackett and
be transported to his working place. When Pantuso refused
that order also, Holbrook told him he was suspended subject
to discharge and that he would be expected to attend a
meeting about the matter at 8 a.m. in Kirk's office {Tr.
144; 353; 443; 887; 960).

2145

16. Pantuso said that if he was no longer working for
Cedar, he did not have to attend any meeting and Holbrook
told him that he should get off Cedar's property until time
for the meeting. Holbrook considered calling a security
guard so as to have Pantuso removed from mine property but
failed to follow up on. that threat when he realized that no
guard would be available at 6:10a.m. (Tr. 353; 887; 960).
The senior pit foremen then went about their supervisory
duties and refused to discuss the suspension with any of
the miners prior to the meeting which had been scheduled
for 8 a.m. (Tr. 144; 353; 445; 887; 961).
17. Pantuso, Browning, Lane, and some other miners
gathered outside Kirk's office in time for the 8 a.m. meeting, but Lane had called Bess, their UMWA field representative, and had advised Bess that Pantuso had been suspended
for trying to withdraw himself and others under article
III(i) of the NBCWA (Tr. 26; 247; 563). Bess had other
commitments which prevented his being able to attend the
meeting. Therefore, Bess called Lester Kincaid, a UMWA
inspector, and asked him to attend the meeting. It was
about 7 a.m. when Kincaid received the cal.l from Bess.
The short notice period made i t impossible for Kincaid and
some of Ce~ar's personnel to be in Kirk's office by 8 a.m.
Consequently, Kirk went out of his office and advised Pantuso and the other miners waiting outside his office that
the meeting would be delayed about a half hour. Browning
told Kirk that there were always delays when they were on
union time and Pantuso said that the meeting would not have
been necessary if Cedar had taken care of its safety obligations. Kirk had turned to go back into his office and did
not hear what had been said and asked that it be repeated.
Pantuso repeated his statement and Kirk . told Pantuso that
he would have him removed from the property if he heard any
more outbursts from him.
In making. that statement, Kirk
shook his finger at Pantuso who stated that he would knock
Kirk's nose off if Kirk didn't get his finger out of his
face (Tr. 178). Pantuso advanced toward Kirk with sufficient indication of striking him to··result in Browning's
testifying "{A]t that time Bill Lane, Frank McCartney, and
a couple of other guys grabbed [Pantuso] and moved him
back and I stepped between them" (Tr. 355; 565; 888; 919;
1022). Kirk added to the reasons for Pantuso's discharge
the fact that he had threatened to strike a supervisor (Tr.
1023; c Exh. 1).
18. The meeting scheduled for 8 a.m. did not start
until about 8:45 a.m. Tackett and Holbrook stated at the
meeting that Pantuso had been suspended solely for refusing
to obey Holbrook's orders directing Pantuso to get into a
truck owned by Cedar and be transported to his working site,

whereas Pantuso and Browning, much to Tackett's and Holbrook's
surprise, claimed that Pantuso had objected to being driven
to his working site because he had told Ramsey he would withdraw himself and everyone from working on the left bench
until such time as the alleged dangerous conditions discussed with Ramsey on August 31 had been corrected. Pantuso
and Browning, therefore, took the position that Holbrook
had suspended Pantuso for refusing to work in a dangerous
area and that Pantuso's refusal to get into the truck had
to be sustained under article III(i) of the NBCWA (Tr. 148~
179 ; 262; 355; 935-936; 961-962; 1022; 1059-1060).
19. Pantuso, as noted in finding No. 8 above, went to
see the UMWA safety representative, Bolts Willis, after
work on August 31 (Tr. 64). Pantuso's complaints to Willis
about the alleged unsafe highwall, lack of communications,
muddy and rough access road, Workman's failure to preshift,
lack of a light plant, failure to provide a portable toilet
on the left bench, and fumes getting into the cabs of some
trucks, were made the subject of a request for an inspection
by the West Virginia Department of Mines (Tr. 141; 348).
A West Virginia inspector named Gordan Wiseman came to
Cut No. 28 on September 6, 1983 , to check on the condition
of the highwall in the left pit, but found no violations because no miners were working on the left bench except two
dozer operators who \"lere pushing spoil off the bench in the
area where the alleged unsafe conditions existed (Tr. 497500} . Kirk advised Wiseman that it was his intent to make
a safety bench at the bottom of the highwall once the loose
materials then on the bench had been removed (Tr. 975;
1039-104l) o That procedure was acceptable to Wiseman (Tr.
52 8) •
20. Wiseman and another WV inspector, Richard Brown,
returned on September 12, 1983, to check on the condition
of the left bench and found that the 15-foot highwall (Tr.
317 ) about which Pantuso had complained in August now had
become a 40-foot highwall instead of the 15-foot highwall
which existed on September 1 when Pantuso was discharged
(Tr. 518}. The increased height of the highwall resulted
from the dozer operators ' having removed the loose materials
which they were pushing when Wiseman was there on September 6 and 7, 1983 · (Tr. 536; 777) . Wiseman issued a withdrawal order on September 12 because Cedar had failed to
erect danger signs along the portion of the 40-foot highwall
above which all loose spoil had not been completely removed by the dozer operators (Tr. 536-538; C Exh. 4}. A .
drill on the bench was in a w6rking position, but Cedar's
foreman, Tackett, at the beginning of the shift, had instructed the drill operator to stay at least 30 feet from
the portion of the highwall where the imminent danger was

subsequently cited by Wiseman (Tr. 969). Wiseman agreed
that the drill could be safely operated at the place where
it was located (Tr. 523; 547) .
Inspector Brown also signed
the order and he agreed that the order had been issued because of Cedar's failure to erect danger signs along the
200-foot dangerous area of the highwall and not for Cedar's
having drilling equipment situated outside the area of
imminent danger (Tr . 279; 287).
21. The 40 - foot highwall which existed on September 12
made the possible falling of rock or dir t from the highwall
at that time much more hazardous than rock falling from the
15-foot highwall which existed on September 1 when Pantuso
was discharged (Tr . 1057; 1066) .
Pantuso conceded that all
his complaints about Cedar ' s failure to provide him with a
smooth access road , a light plant , a portable toilet, and
communication facilities wou ld not constitute an imminent
danger justifying withdrawal if the left bench had not been
threatened by a dribbling of loose rocks and dirt from the
embankment above the 15-foot highwall which existed on September 1 (Tr. 199). The only unsafe aspect of the embankment at the time of Pantuso's discharge, however , consisted
of a crack in the loose material in the embankment which
had been pointed out to Pantuso by a dozer operator named
DeWeese when he was cleaning the left bench on August 20
for the purpose of making the pench smoo.th for future drilling operations (Tr . 109; 148; 317 ; 380; 384). When Pantuso
was discharged on September 1 , th~ condition of the highwall
had not changed from the way it looked on August 20 when the
crack was first pointed out to Pantuso by DeWeese (Tr. 401;
403; 957-958; 1051-1066). Moreover , Ramsey had entered in
the preshift book on August 19 that the loose material in
the embankment should be kept under observation and his
entries in the onshift and preshift reports of September 1
show that Ramsey still did not consider the loose materials
on the embankment to be unsafe (Tr . . 405; C Exhs. 12 and 12A).
Therefore, the preponderance of the evidence does not support Pantuso's allegations that the condition of the highwall on September 1 warranted his t.~king the position that
he had withdrawn himself and all other miners from working
on the left bench at the time he was discharged on September 1 for refusing to obey Holbrook's order directing him
to get into Cedar's truck and be transported to his working
site.
Consideration of Parties' Arguments
As indicated on pages 5 ~nd 6 above, the Commission has
held that a complainant establishes a prima facie case of
discrimination if he shows that he engaged in a protected
activity and that some adverse action against him was moti vated in any part by that protected activity . If a miner

succeeds in establishing a prima facie case, the operator
may defend affirmatively by proving that the miner would
have been subject to the adverse action in any event because
of his unprotected conduct alone. Cedar's initial brief (p.
12) assumes, arguendo, that Pantuso's discharge was motivated in part by h1s protected activities, but claims that
his complaint should be d·e nied because Cedar's affirmative
defense showed that Pantuso would have been discharged in
any event because of his unprotected conduct of refusing
to obey Holbrook's direct order to get in the truck with
Tackett and threatening to knock Kirk's nose off (Finding
Nos. 15 and 17 above).
If Pantuso's complaint could be sustained at all, it
would have to be upheld on his claim that he refused to be
transported to his working site on the morning of September 1, 1983, not . because he wanted to take his own Jeep
to his working site, but because the conditions which
existed on the left bench on the morning of September 1
constituted an imminent danger which required him to withdraw
himself and all other miners under article III(i) of
the NBCWA (Finding No. 13, n. 3 above). One of the Commission's most detailed discussions of the grounds which constitute a basis for withdrawal under the Act appears in
Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126 (1982).
In that case, the Commission held that the miner's refusal
to work must be based on a good-faith belief that hazardous
conditions exist and that the unsafe conditions must be
communicated to the operator at the time the refusal to
work is made, or must be communicated "reasonably soon"
thereafter. If Pantuso's and Browning's testimony could
be believed, their testimony satisfied all the prerequisites
of the rationale enunciated by the Commission in the
Northern case. The primary job of a Commission judge,
however, is the making of a detailed analysis of the record
to determine whether a complainant's presentation is
credible. My analysis of the record will hereinafter show
that Pantuso's and Browning's testimony constitutes a complete fabrication unworthy of acce-ptance.
Pantuso's Complete Lack of Credibility
About 30 miners were present at the portal when Holbrook .
gave Pantuso orders to get in the truck with Tackett and
be transported to his working site (Tr. 319). Yet only Pantuso's
buddy, Browning, was willing to corroborate Pantuso's claim
that he raised the defense that he was refusing to go to
the working site because conditions there constituted an·
imminent danger. Even Brownihg . and Pantuso failed to
agree on the exact time when Pantuso raised that defense.

2149

Pantuso testified unequivocally that he did not raise the ·
defense of withdrawal before the safety meeting started at
6 a.m. (Tr . 215), whereas Browning testified that Pantuso
did raise the defense of withdrawal prior to the commencement of the safety meeting (Tr . 643; 696) .
The only miners, Christian and DeWeese, who were
actually present at the safety meeting and who testified on
Pantuso's behalf, other than Browning, claimed that both
Holbrook and Pantuso were shouting at each other and making
so much noise, they could not understand what was being said
(Tr. 307; 318) . DeWeese admitted on cross-examination that
he was within 35 f·eet of two people shouting at each other
and yet could not discern who was speaking or determine what
the discussion was about (Tr . 319) . All three foremen,
Holbrook , Tackett, and Ramsey, were .present and all three
testified unequivocally that no issue of safety was ever ·
raised until , to their surprise , Pantuso and Browning belatedly raised that issue at the time a meeting was held at
8 a . m. in Kirk's office (Tr . 445; 447; 893; 898; 961).
While I am aware that the three foremen would naturally be
inclined by se.lf interest to support management,' s position
that Pantuso was discharged for refusing to obey a foreman ' s
direct order to get in a truck for transportation to his
working site, the fact that 30 miners heard the discussion
between Holbrook and Pantuso and only Browning was willing
to support Pantuso ' s version of the shouting match makes
Pantuso's version unacceptable, particularly when one considers the many other incredible aspects of Pantuso ' s and
Browning's testimony.
Perhaps the single aspect of Pantuso's and Browning's
fabrication which is least credible is their claim that they
went to the left bench on the morning qf September 1 and
made a preliminary examination of the conditions so that
tpey would be in a position to withdraw when it came time
for them to go to their working site. They contrived that
story because they knew that a question would be raised as
to how they could claim, before even qoing to the left
bench , that conditions there constituted an imminent danger
requiring them to withdraw themselves and all other miners
from reporting to work at that site. For the aforesaid
reason, they testified that they had come in early on September 1 so as to have time to drive to the left bench and
examine the conditions there to determine whether Cedar ' s
management had corrected the hazardous conditions which they
had reported to Ramsey before quitting time on the previous
day , August 31 (Tr. 141; 351)~ · .
·
The guard at the Chelyan Gate entered Pantuso ' s and
Browning's arrival time as 5:22a . m. {Tr . 97) . They claimed

215 0

that it was a distance of 3 or 4 miles from the gate to the
place where they turned off the main road onto the access
road leading to the left bench and that the driving time to
that point was 10 minutes. That means that they would have
reached the access road at 5 : 32 a.m. (Tr . 203) . Pantuso
claimed that he drove to the left bench , inspected it in the
dark with the lights of his Jeep and was back on the main
road within a period of from 7 to 10 minutes (Tr . 205- 206) .
Browning testified that it would take 4. minutes to drive to
the portal from the place where the access road joins the
main road (Tr . 645). Browning also testified that i t would
take 4 or 5 minutes to drive from the main road to the left
bench, 3 or 4 minutes to inspect the bench conditions, 3 or
4 minutes to drive back to the main road, and 4 minutes to
drive to the portal , or a total of 14 minutes to complete
the inspection of the left bench and drive to the portal
from the site where their Jeep was located at 5:32 a . m.
Using the longest times given by Pantuso would have placed
him and Browning at the portal at 5:46a.m., whereas he
claims that they arrived at the portal at 5:55 a~m . Using
Browning ' s longest times would have placed them at the
portal at 5:50 a . m.
The above testimony would not have been as devastating
as it was if it had ·not been for the fact that they had
failed to think through the driving times prior to crossexamination and therefore tried to minimize the driving time
more than they would have had to minimize it if they had
actually made a preinspection of the left bench prior to
the time they arrived at the portal on September 1 . The
devastating part of their testimony on cross-exainination is
that they had claimed in their direct testimony that the
access road was so muddy and rough that they could not get
through the mud without shifting into four - wheel drive (Tr.
124; 196; 342; 635). When it came to explaining how they
could have made such a fast trip to the left bench and back ,
however, Pantuso said that the road was "pretty smooth " (Tr .
206), that he was able to drive over it in two - wheel drive,
that he could drive at a speed of from 25 to 30 miles per
hour (Tr . 207), and that he "didn't have no problems" (Tr .
208) .
Pantuso testified that nothing had been done to the
access road between August 31 and September 1 (Tr . 207) .
Yet he found that the road was miraculously "pretty smooth"
the next morning and could be traveled at a speed of from 25
to 30 miles per hour without having to resort to four - wheel
drive at all. One of the reasons that he claims he wanted
to drive his own Jeep to. the left bench, instead of riding
in a Cedar- owned truck, was that he would not have a means
of transportation off the bench in case of an emergency . He
claimed that an ambulance would be unable to get to the left

2151

bench because the access road was impassable (Tr. 172) . Yet
if the road was in as fine a condition as Pantuso found it
to be on September l , an ambulance would have had no trouble
whatsoever in traveling over the road to get him if he or
any other miner had been injured while working on the left
bench.
Moreover, Pantuso had claimed on August 31 that he
needed a light plant or generator to reflect light on the
highwall because the lights on the drill did not shine on
the highwall itself (Tr. 135). If, as Pantuso claimed , the
lights from a Jeep permitted him to see the highwall "real
clear" on the morning of September 1 , it is extremely
doubtful that he really needed a light plant to enab l e him
t o inspect the highwall. Pantuso had succeeded in getting
the foremen to admit that the drill had to be preshifted
and that the preshift report had to be picked up by a
foreman before any actual drilling could be started (Tr.
900; 953) . By the time the drill had been · preshifted and
the preshift report had been picked up, there would have
been plenty of natural light to enable Pantuso to inspect
the highwall and determine whether it exposed the miners
to any hazardous conditions.
There was other testimony which controverted Pantuso ' s
and Browning's claim that they had made a preinspection of
the left bench before arriving at the portal · on September 1 .
Ramsey , a senior pit foreman, came in the Chelyan Gate at
5:16a . m. on September 1 and was on the . left bench to do a
preshift inspection about 5:30 a . m. on September 1. He
testified that he did not see the lights of any other
vehicle while he was th~re (Tr. 466 - 467) .
Since it was
still dark and since both Pantuso and Browning testified
that they were on the left bench at the same time Ramsey was
there, it would have been impossible for them to have been
there using the lights on the Jeep to inspect the highwall
without. having been seen by Ramsey and without thei r having
seen Ramsey . Neither Pantuso nor Browning, however , mentioned having seen the lights of any other vehicle while on
the left bench.
Pantuso and Browning both stated that Pantuso had
stopped the Jeep in the vicinity of the intersection of the
access road and the main road so that Browning could tie his
shoes (Tr. 207~ 642).
I have ridden in many · Jeeps on all
sorts of roads and I have never seen a road so rough that I
could not have tied my shoes without having the driver stop
t he Jeep for that purpose . Therefore, I wondered why they
would have concocted such a farfetched reason for stopping
the Jeep until I read the testimony of Frame, the maintenance foreman, who testified that he saw Pantuso ' s Jeep

2l.GZ

parked near that intersection at 5:50 a.m. on September 1
(Tr. 1075- 1076). I then realized that Pantuso and Browning
were aware of the fact that someone else had seen them
parked near the access road to the left bench on September 1
and they had to contrive some excuse for having been s t opped
at that location.
Another aspect of Frame's testimony was absolutely
devastating to Pantuso ' s and Browning's claim that they
had made a preinspection of the left bench. Frame stated
that he was impressed by the fact that Pantuso ' s Jeep was
very clean when he saw i t parked near the access road at
5 : 50 a . m. on September 1. Frame also testified that he saw
no mud on Pantuso ' s Jeep when he saw i t parked at the portal
about 5:56 a.m. and saw no mud on the Jeep when he again saw
i t parked outside Kirk's office about 8 : 30 a.m. (Tr. 10791080). Frame said that there was no way that Pantuso could
have driven his Jeep on a two-way trip through the mud on
the access road without having mud on i t from one end to
the other (Tr. 1077). All witnesses, including Pant uso and
Browning, uniformly agreed that the access road was muddy
because water ran across it in three places (Tr. 166; 333;
952).

Another aspect of Pantuso's testimony which shows lack
of credibility is his statement that he could drive from
the Chelyan Gate to the portal in 10 minutes (Tr . 170).
Deems, the personnel manager, testified that he had measured
the distance from the Chelyan Gate to the portal with the
odometer on his vehicle and had found i t to be 9 miles
(Tr. 1011). He said that if he drove the distance faster
than normal, he could do it in 13 minutes which would be
an average of 42.8 miles per hour. To travel the distance
in 10 minutes, as claimed by Pantuso, would amount to an
average speed of 54.5 miles per hour. Pantuso's claim
that a road located entirely on Cedar ' s mine property can
be safely traveled at an average speed of 54 . 5 miles per
hour is just another reason to doubt his credibility.
There are many other reasons for doubting Pantuso ' s
credibility.
In an effort to maximize the danger inherent
in drilling on the left bench, Pantuso stated that Ramsey
ordered him and Brmvning to drill some "dummy" holes near
the 15-foot highwall . He used the word "dummy" to designate
holes which would be drilled but not filled with explosives .
The idea was that other holes drilled farther from the highwall would be shot, but the dummy holes would create a
place for the earth to break far enough from the highwali
to form a safety bench , that is , · a place which would catch
any rocks and dirt that might fall from the highwall and
prevent such material from falling into the area where

miners were working (Tr. 113-114). Pantuso testified that
the shot foreman then came in and filled the so-called
dummy holes with explosives and shot them along with the
other holes and destroyed the safety bench which would
otherwise have been created {Tr. 121).
Browning and Ramsey, on the other hand, both testified
that the drilling of the dummy holes was authorized by
Ramsey at Pantuso's and Browning's suggestion (Tr. 343;
384) and both Ramsey and Browning testified that they did
not really think drilling dummy holes to form a safety
bench at that time was a good idea because they were drilling in soft earth which would not form a soliq area to
serve as a safety bench (Tr. 359; 385; 407). Kirk testified
that he authorized the dummy holes to be shot because they
were in such soft earth that they would ·not be "worth a
quarter" and that he had authorized the foremen to make a
safety bench after they had sunk to a lower level where
solid rock would be encountered (Tr. 975; 1040; 1054).
The preponderance of the evidence, therefore, fails to
support Pantuso's claim that Cedar disregarded safety considerations and shot the dummy holes and thereby deprived
him and Browning of a safety bench which they would otherwise have had.
Pantuso also tried to maximize the hazardous nature
of drilling on the left bench by claiming that the highwall
was 60 to 70 feet high prior to his discharge on September 1
(Tr. 184). Yet WV Inspector Wiseman checked the left bench
on September 6 after Pantuso's discharge and testified that
the higbwall was 15 feet high at that time (Tr. 518; 523}.
Therefore, the highwall could not have been 60 or 70 feet
high prior to Pantuso's discharge. When WV Inspector Brown
examined the left bench on September 12 after the dozers
had removed all materials drilled by Pantuso and Browning,
the highwall was, in his opinion, about 60 feet high (Tr.
287). Cedar's engineering witness, Evans, using precise
data, testified that the highwall was iS feet high prior to
Pantuso's discharge and 40 feet high on September 12 (Tr.
777).
As to Pantuso's claim that the left bench was an unsafe
place to work because he had no means of communication in
case of an emergency (Tr . 136), he admitted on crossexamination that all of the foremen had short wave radios in
their trucks and that "you see foremen all the time around
there .. (Tr. 235). Moreover, Browning was able to use a hand
signal on August 31 to get Ramsey to come to the left bench
solely to transport him a short distance to the toilet (Tr.
423-425). Since Browning demonstrated that it was easy to

2154

get a foreman's attention, Pantuso's claim that he was working at an isolated place where he could not obtain help in
case of an emergency is another claim which is not supported
by the preponderance of the evidence .
While Pantuso claimed that he consistently drove his
Jeep from the portal to the left bench prior to August 31 ,
he also testified that he was "pretty sure" he had his own
transportation (Tr. 115) and he further testified that on
August 26 he volunteered to drive his Jeep because Ramsey 's
Cedar-owned vehicle could not travel over a steep place in
the access road (Tr. 120). If he had consistently been
driving his own Jeep each day, there is no reason for him
to have had to " volunteer" to use his Jeep on August 26
and it would have made no difference to him whether Ramsey's
vehicle could travel the access road or not.
It is a fact that Complainant's Exhibit 1 is dated
August 31, 1983, although i t is Cedar's written notice of
Pantuso's suspension subject to discharge which was actually
given to Pantuso on September 1, 1983 . Pantuso testified
that the date of August 31 on the suspension notice showed
that Cedar had planned on August 31 to discharge him when
he came to work on September, l and that there was no secretary at the mine on September 1 to type the notice of suspension (Tr . 217). Darlene Harmon, Kirk's secretary, testi fied that she actually typed the notice of suspension on
September l but made a typographical error and typed the
date of August 31 by mistake . She said that she distinctly
recalled the date because the next day, September 2, was
her birthday and that she remembered doing the typing on the
day before her birthday (Tr . 722) . Therefore, Pantuso
fabricated a story to support his claim that the notice of
suspension was prepared in advande of the actual discharge.
Pantuso also testified that he was just doing "dead"
work on the left bench (Tr. 202} and that the drill broke
d own so o ften that he c oul d not r e call havi"ng worked there
for a full 10-hou~ day {Tr . 187 ) . The' detailed time and
attendance records submitted by Cedar, however; show that
Pantuso worked four 10-hour day s on the left bench on
August 22 throug h August 2 5 (B Exh. 7) .
Pantuso test i fied that he had successfully withdrawn
because of hazardous conditions prior to September 1 pursuant to article III(i) of the NBCWA (Tr. 219) . If he had
withdrawn in the past, he und<?ubtedly knew what to say o~
September 1 to make Holbrook ~ware of his claim that he had
withdrawn from working on the left bench and therefore could
not accept transportation to the left bench where an imminent danger allegedly existed. Of course, he was actually
going to be transported to the right bench.

Pantuso claimed that Ramsey's telling him on September 1
that he would be working with Wiseman , instead of Browning ,
did not mean to him that he would be drilling on the right
bench where Wiseman's drill was located (Tr . 146) . He based
the aforesaid claim on a second unsupported assertion that
Cedar "was in violation" on the right bench too and that
Wiseman ' s drill would have had to be moved to the left bench
because his and Browning's drill was still under repair -and
would not be available for use on September 1 in any event
(Tr. 147). If Pantuso ' s and Browning's drill were still
being repaired so that it could not have been used , there
was no reason for Pantuso to claim that he had withdrawn on
September 1 to keep from working under a hazardous highwall
because no drilling would have been done in any event until
another drill could have been moved to the left bench. That
would have given Pantuso plenty of time within which to make
certain that no miners were required to work on the left
bench until the alleged imminent danger could have been
eliminated.
Browning's Defiance of Cedar ' s Orders and Lack of Credibility
Pantuso and Browning rode back and forth to work each
day in Pantuso's Jeep (Tr. 141; 351). Therefore, they had
plenty of time to plot how they would interfere with Cedar ' s
operations and do as much or as little work as they wished
(Tr . 482; 613). Cedar ' s foremen testified that two drills
had burned up when they accidentally caught on fire and that
after that happened , Kirk put out a written order stating
that drilling helpers should remain outside the cab so that
they would be in a position to observe the drill at all times
and advise the drilling operator of any hazards because a
drilling operator was slightly injured by the fire which
suddenly occurred on one of the drills (Tr . 398; 976; 1025;
R Exh . 5).

Since Pantuso and Browning enjoyed each other's company,
they did not like to be separated and Browning frankly testified that he instructed Pantuso to ignore Kirk ' s order and
remain in the cab with him because it was too dark for Pantuso
to see the wall in any event (Tr . · 335). By the time they had
preshifted the drill and the preshift reports had been picked
up by a foreman, there was p l enty of daylight for Pantuso to
keep a watchful eye on the highwall (Tr. 900) . The foremen
stated that drilling helpers frequently did not have much to
do and that they liked to remain inside the cab which was
air conditioned in the summer and heated in the winter . One
reason that the drill helpers ~ li~ed to drive their own vehicles
to the drilling bench was that· it gave them a place to sit.
The result was that the foremen found them asleep in their
vehicles at times when they were supposed to be observing

'

r.r-.
2l JO

conditions on the drilling bench and on the drill itself
461-462~ 478~ 976).

(~r.

If Ce~ar's management had set out to find a pretext for
discharging Pantuso solely because of his safety activities,
it could have made an excellent case for discharging both
him and Browning because of their admitted refusal to follow
Kirk's written order that Pantuso remain outside of the
drill's cab.
One of the ways in which Pantuso tried to shed some credibility on his claim that he had withdrawn ·from the left bench
on September 1 under article III(i) of the NBCWA was to have
support.i ng witnesses testify that Holbrook wa$ very unstable
and was likely to fly into a rage at the least provocation and
thereby refuse to listen to what any miner might be saying to
him (Willis at Tr. 67; Lane at Tr. 566-568). Billy Christian,
a loader operator, testified that Holbrook had shouted. at him
one day when he was complaining about some defects on his
loading machine and that Holbrook's verbal assault caused him
to remain silent about his safety problems (Tr. 306-307).
Holbrook's defense to Christian's allegations was an
.explanation to the effect that he was simply trying to stop
Christian from a bad habit. That habit was described as
follows: Christian would complain at a safety meeting that
he had some defects in his loading machine. Holbrook would
instruct a mechanic to repair the defects. In the meantime,
Christian would start operating the loading machine despite
its defects. Then when the mechanic came to make the necessary repairs, Christian would refuse to stop the loading
machine long enough for the mechanic to repair it. Later,
however, if Kirk or a safety committeeman happened to come
near Christian's loader, he would stop it and complain about
the defects in his loader and claim that the foreman would not
correct the defects. Holbrook gave the name of one of the
mechanics who reported such an encounter with Christian (Tr.
905-906) and described a similar incident, involving a safety
committeeman, which had occurred just e week prior to the
holding of the hearing before the WV Board (Tr. 942).
Pantuso's efforts to vilify Holbrook are largely, if not
entirely, overcome by other uncontroverted testimony in the
record. For example, just prior to Pantuso's discharge on
the morning of September 1 Holbrook demonstrated an unusual
amoun~ of self control.
Browning testified that when Holbrook first started to give Pantuso a direct order to get
into Tackett's vehicle for transportation to his working 'site,
Browning interrupted him to rei'm ind him that it was only 5:58
a.m. and that Holbrook could not give any direct orders
before working time which did not start until 6:00 a.m. (Tr.

2157

351). Holbrook admitted that Browning was right in making
that observation and stated that he would give the direct
order after he had held the safety meeting (Tr . 886) .
Despite the fact that Holbrook was holding a safety
meeting regarding the wearing of hard hats inside the portal
building away from any hazards of falling rocks, Browning
interrupted him again to note that he ought to put o n a hard
hat before conducting the safety meeting (Tr . 352). Holbrook
again agreed that Browning was correct because he was one of
the worst offenders in failing to wear a hard hat (Tr. 890}.
Browning further showed accommodating aspects of Holbrook's
character by testifying that Holbrook had been "nicer" to
him than any other foreman. On one occasion, Browning said
that Holbrook had volunteered to guard his vehicle when he
had had to leave it unattended at a time when i t contained
some sports equipment which could have been stolen through
a broken ·window which then existed in the vehicle. Browning also testified that Holbrook had allowed him to drive
his own vehicle to his working site when other foremen had
refused to allow him to do so (Tr . 360).
It is clear from the record, therefore, that Holbrook
was not so unstable in character that he would have discharged a miner who was trying to explain to him that the
area where he was being sent to work was so hazardous that
he was withdrawing himself and all other miners from that
area under article III(i} of the NBCWA .
At all times in evaluating the credibility of Browning ' s
and Pantuso's withdrawal claims , one has to bear in mind that
Pantuso was initially suspended subject to discharge solely
because he refused to get into the truck with Tackett for
transportation to his working site. Once Pantuso had pushed
Holbrook over the edge of forbearance and had been sus pended, Pantuso and Browning were forced to fabricat-e
retrospectively a safety-related justification for Pantuso ' s
refusal to obey Holbrook ' s thrice-repeated direct order
for Pantuso to get into the truck with_ Tackett for transportation to his working site (Tr . 887). It must be recalled that Browning was present when Pantuso allegedly
told Ramsey on August 31 that he would have to withdraw
himself and others from working on the left bench if Ramsey
had not corrected all of the safety complaints which Pantuso had pointed out to Ramsey on August 31 (Tr. 136).
Since Browning was an alternate safety committeeman who
could .withdraw under article III(i) just as well as
Pantuso, Browning had to invent a reason for his not
having withdrawn on September ·.i after Pantuso was suspended .
Browning was just as fully aware of the alleged
haza+dous conditions on the left bench as Pantuso was
(Tr. 647). Yet , after Pantuso was discharged, Browning

2l:JB

announced to Ramsey that he was going on u nion time in
order to assist· Pantuso in defending himself at the
meeting which Holbrook had stated would be held at 8
a . m. (Tr. 354: 672; 961).
In going on union time to assist Pantuso in holding
his job, Browning abdicated his responsibilities as an
alternate safety committeeman by failing to find out if
the other miners who were scheduled to work on the left
bench on September 1 were actually going to that allegedly
hazardous place to work (Tr. 686; 718) .
If conditions
on the left bench had really constituted an imminent
danger, as Pantuso and Browning claimed, those dangers
were not eliminated when Pantuso was suspended subject
to discharge . The primary obligation on Browning at the
moment of Pantuso ' s suspension was not in defending Pantuso from being discharged , but making sure that no other
miner was forced to work in the extremely dangerous conditions which allegedly existed on the left bench. Of
course , Pantuso did not actually raise a wi·t hdrawal defense, except as an afterthought, to justify his refusal
to obey Holbrook's direct orders. Therefore , no thought
was ever given to the matter of paramount importance
which was assuring that other miners would not work in
an area of imminent danger.
Browning realized that he had to contrive some excuse
to e~plain why he had abdicated his duties as an alternate
safety committeeman. Therefore, he introduced into his
direct testimony a conversation which he and Pantuso had
allegedly · had on the morning of September 1 when they
were making the claimed preinspection of conditions on
the left bench prior to reporting for work at the portal .
According to that conversation, Pantuso had told Browning
that since Browning was only an alternate safety committeeman , Pantuso would have to be the spokesman for initiating
withdrawal when the time came for them to go from the portal
to their working area (Tr. 351). On cross-examination,
Browning explained in detail the provisions of article
III(i) of the NBCWA (Tr . 712- 713) and he knew perfectly
well that he had authority to invoke the provisions of
that portion of the NBCWA. Therefore, the conversation
in which Pantuso explained to Browning that only Pantuso
could initiate a withdrawal, even if it had occurred, was
no excuse for Browning's failure to perform the withdrawal
which he and Pantuso had allegedly decided to implement
on the morning of September 1. After all , Browning had
never been backward or hesitant ?bout exercising the
functions of a safety cornrni tte.e man on other occasions
despite the fact that he was only an "alternate" safety
committeeman (Tr. 329; 341; 343; 348).

2159

Another excuse raised by Browning for his failure to
withdraw all miners from the left bench after Pantuso's
suspension was that he would have had to call for a
safety committeeman to inspect the area and that would
have necessitated his calling Pantuso who had already been
disqualified from acting because of his suspension (Tr.
704}. That was a lame excuse because there were other
safety committeemen present at the time of Pantuso's
suspension and one of them could have been called.
Besides, at the time of Pantuso's suspension, about 30
miners were present at the portal (Tr. 319) and Cedar
would have had to honor a .bona fide withdrawal made under
article I I I (i) of the NBC~vA by going through all consultation steps required by that article.
Another difficulty which Pantuso and Browning had to
overcome in fabricating their claim of withdrawal from the
left bench is that they agree that Ramsey had advised
Pantuso that he would be working with Wiseman, not Browning, that morning (Tr. 142; 353}. They .claim that they
had just finished inspecting the left bench and they knew
that the drill Wiseman would be operating was located on
the right bench, not the left bench (Tr . 353). They had
not made an alleged preinspection of the right bench and
could not claim that conditions on the right bench also
constituted an imminent danger, although Pantuso did say
that Cedar was "in violation" on the right bench (Tr.
147) .
Therefore, they claimed that Wiseman's drill would
have to be moved to the left bench in any event because
the drill normally operated by Browning on the left bench
was still undergoing repairs (Tr. 146}. The net effect
of their contentions was that Pantuso was still withdrawing from the left bench when he raised that as a defense because Pantuso knew that sooner or later he would
be working with Wiseman on the left bench.
The credibility of Browning 7 s testimony is eroded by
some of the same infirmities which destroy Pantuso's
credibility. Browning, for example, also emphasized the
terrible condition of the access road on and before
August 31 , but f ound those conditions did not prevent
Pantuso from driving over the road in two-wheel drive when
they made their alleged preinspection of September 1 because Browning was forced to concede that the access road
would have had to have been in relatively good shape in
order for them to have traversed i t as rapidly as they
claimed in order to get to the l .e ft bench, inspect it,
and return to the main road so ·as to arrive at the portal
by 5:55 a.m. {Tr. 333; 342; 63.5 ; 645}.

21GO

Browning also destroyed the credibility of his account
of the events which occurred just prior to Pantuso's suspension on September 1 by recalling that Pantuso had withdrawn
outside the portal before the safety meeting began even
though Pantuso unequivocally stated that he did not withdraw
until sometime durtng his conversation with Ramsey after the
safety meeting started and perhaps in his alleged safety
protests to Holbrook after the safety meeting had been
concluded (Tr. 143; 215; 643). Browning also could not
explain how he heard part of what Pantuso was saying to
Ramsey and not hear all of that conversation in view of the
vital interest he had in making sure that Ramsey was aware
of the extreme importance of Pantuso's withdrawal from the
imminent danger which allegedly existed on the left bench at
that very moment. Browning and all witnesses agree that the
safety meeting did not last for more than 5 or 6 minutes
(Tr. 214; 961). During that time, Browning interrupted
Holbrook on one occasion, talked to other miners despite
Holbrook's telling all the miners to be quiet, and had time
to ask if there were any safety problems to be discussed
after the meeting. His conduct during and after the safety
meeting supports a conclusion that he was not paying any
attention to anything which Pantuso might have been saying
to Ramsey because he was listening only to the prepared
statement read by Holbrook and had nothing in particular on
his mind about safety at the time Holbrook asked if there
were any questions and and when he himself got up and asked
if there were any safety matters to be raised (Tr. 352-354;
660; 699).

At one point in his direct testimony, Browning inadvertently told the truth by saying that he heard Ramsey tell
Pantuso that he would not be going into "that" pit {Tr.
353). The context in which Browning used the word "that"
meant the "left" pit and that statement, if it had been left
undisturbed, would have destroyed both his and Pantuso's
claim that Pantuso thought he would eventually be going to
work in the left pit despite the· fact that Ramsey had advised him that he would be working with Wiseman instead of
Browning. Browning's attorney was alert, however, and
succeeded in getting Browning to amend his testimony so as
to say that Ramsey only told Pantuso that he would be working with Wiseman without specifically stating that Pantuso
would be working in the right pit instead of the left pit.
Browning testified that no shots were set off on the
left bench between August 26 and the time when the West
Virginia inspector came to inspe~t the left pit on September 6 (Tr. 345), but the blastlng log shows that a shot
was set off on the left bench on September 2 (Tr. 768; R
Exh .. 9).

rjl t).
'~l
....

Pantuso's and Browning's Abuse of Their Positions as Safety
Committeemen
Cedar's reply brief (p. 13) emphasizes the fact that
Pantuso and Browning abused their positions as safety committeemen by reporting alleged violations which did not exist.
There is considerable merit to the above contention. On one
occasion, Pantuso requested that the Mine Safety and Health
Administration (MSHA) of the U.S. Department of Labor conduct
an investigation pursuant to section 103(g) of the Act with
respect to 80 alleged violations of the mandatory health and
safety standards (Tr. 181). Browning testified that he and
three other safety committeemen spent 3 days with four MSHA
inspectors checking Cedar's mine and equipment to determine
whether the violations existed (Tr. 329; C Exh. 11}. Respondent's Exhibit 2 consists of 69 statements written by
MSHA's inspectors finding that 69 of the 80 alleged violations did not exist and the record is not clear as to whether
the remaining 11 actually existed (Tr. 858).
Pantuso's attorney tried to defend Pantuso's having
reported at least 69 violations which did not exist on the
ground that Cedar had corrected them between the time he
requested the section 103(g) inspection and the time when
they were checked by the four inspectors (Tr. 823-827),
but he merely confused matters by introducing Complainant's
Exhibit 17 which dealt with a different section 103(g) inspection requested by Pantuso 10 days after he had been discharged (Tr. 865). The three alleged v1olations discussed
in Exhibit 17 were not found to exist when they were checked
by MSHA.
While i t may be true that Cedar had corrected 69 of the
80 alleged violations prior to the time when the MSHA inspectors made their examination of the mine, the fact remains that the 80 alleged violations resulted from a quarterly inspection which the union made pursuant to the NBCWA
and normal procedure was for Cedar to be given 5 days within
which to correct an alleged violation before any other
action was taken (Tr. 859). It is not clear from the record
that Pantuso gave Cedar a period of 5 days to correct the
alleged violations before requesting that an inspection
under section 103(g) of the Act be conducted. If Pantuso
did not eliminate violations corrected within 5 days before
requesting the section 103(g} inspection, he certainly
wasted a lot of time by four MSHA inspectors in checking
nonexistent violations.
On another occasion, Pantuso and Browning decided that
Cedar was not correcting some alleged violations as fast as
they wanted them corrected, so they went on union time and

2162

drove around Cedar ' s mine to find 35 alleged violations (Tr .
828; 860) which Pantuso reported to UMWA so that the West
Virginia Department of Mines could be asked to check them
(Tr . 153; C Exh. lO(C)) . The WV Department of Mines found
that 20 of the 35 alleged violations did not exist (Tr.
211). Cedar was not given any notice th~t the 35 alleged
violations had been reported and had no opportunity at all
to correct any of them prior to the inspection. Therefore,
at least 20 of the ?5 alleged violations did not exist at
the time they were reported by Pantuso.
In order for Pantuso to sustain his complaint in this
proceeding, he needed to prove, among other things, that he
was engaged in a protected activity at the time of his suspension subject to discharge . He failed to prove that he
was engaged in any protected activity when he refused to obey
Holbrook's direct orders or when he threatened to knock
Kirk's nose off. Reporting nonexistent violations to MSHA
and the WV Department of Mines did not help to prove engagement in a protected activity at the time Pantuso was suspended subject to discharge.
The Question of Ramsey ' s Credibility
The arbitrator referred to Ramsey's having been unsure
at the arbitration hearing as to whether Pantuso ever said
anything about withdrawing from the left bench on August 31,
the day before he was discharged (Arb. Dec . or C Exh. 2, pp.
5 & 15). Ramsey stated that he had not given any thought
to the matter at the time he was first asked that question
because he did not understand why a withdrawal statement on
the previous day was in any way related to Pantuso's refusal
on September 1 to obey Holbrook ' s direct orders to get in
the truck with Tackett for transportation to a completely
different working site on the right bench {Tr. 434) . Ramsey
said that after he had given the matter some thought, he
decided that Pantuso did say something on August 31 about
the fact that he could withdraw from the left bench (Tr.
427-428 ; 481; 490-494).
It has been my experience that the most credible witnesses are sometimes uncertain about statements which may
have been made, but which they did not consider to be significant at the time they were said. The mere fact that
Ramsey was willing to amend his testimony to say that Pantuso may have mentioned on August 31 that he could withdraw
shows the effort of a witness to be fair and truthful and
does not indicate that he was- trying to misrepresent the ·
actual facts. Ramsey was also unsure about the dates on
which certain other events occurred. For example, he could
not be certain when the last shot on the left bench was

2163

fired until his counsel referred to the blasting log (Tr.
452). Ramsey was also easily confused by counsel. At one
point, he was persuaded by Pantuso's counsel to concede that
he may have gone to the 24/48-hour meeting, although he first
stated that he was not present (Tr . 447).
Ramsey did not
attend the 8:45 a . m. meeting held on September 1, 1983 (Tr.
935), and could have had the two meetings confused. As hereinafter pointed out, the two meetings were even confused by
Cedar ' s counsel when Cedar ' s reply brief was written .
Ramsey prepared a statement about the events of August 30,
31 , and September 1, prior to the hearing held before the WV
Board. That statement was received in evidence by the Board
(Tr . 437) and i t does not refer to any statement by Pantuso
on August 31 that he could withdraw and that is a further
indication that Ramsey did not consider the statement , if made,
to be anything more than a part of Pantuso ' s and Browning's
having raised dubious safety complaints to retaliate for
Kirk's having issued the written directive on August 24 that
drilling helpers were thereafter to remain outside the cabs
on the drills in order to observe any safety hazards which
might develop (Tr. 427).
As compared with Ramsey ' s uncertainty about when some
events actually happened, Pantuso had memorized every detail
of what· happened on August 30 , 31 , and September 1 to such
an extent that he even corrected Cedar ' s counsel when he
made a mistake as to a date in his question (Tr . 168). The
ability of a witness to be certain about every small detail
is more likely to indicate fabrication than is the inability
of a witness to recall with certainty whether a specific
statement was ever made. After all, both Pantuso and Browning conceded that if Ramsey ever heard Pantuso .say anything
on August 31 about withdrawing, he made no reply to indicate that he had heard the remark (Tr . 137; 342- 343). It
i s, therefore, not surprising that Ramsey had difficulty in
recalling whether anything about withdrawing was ever said
by Pantuso on August 31 .
The Arguments Advanced in Pantuso's Initial Brief Must Be
ReJected for His Failure To Analyze the Record Correctly
Pantuso's initial brief is 31 pages long. The brief
relies primarily on Pantuso's and Browning's testimony as
the source of its statement of the facts .
Since I have
already shown in this decision that Pantuso ' s and Browning's
lack of c~edibility makes it impossible to accept their
testimony, Pantuso's brief is ~ necessarily erroneous in the
allegations which are set for~h as facts on pages 1 through
13. Some of the erroneous statements are discussed below .

2164

On page 2, the brief purports to cite Willis and Browning as witnesses, but transcript pages 38 and 284 cited on
that page, refer to testimony given by Bess and WV Inspector
Brown, not Browning, who was Pantuso's buddy and the only
witness who supported his claim of having withdrawn at the
time of his suspension and discharge. The first part of
Pantuso's brief tries to show that the left bench where
· Pantuso was working from August 22 up to his discharge was
an extremely hazardous place to work, but that claim was
thoroughly discredited by nearly all the witnesses, including the two WV inspectors, as I have shown in the 21 findings of fact which are set forth on pages 6 through 16 of
this decision .
Pantuso exaggerated the conditions which he discussed
throughout his testimony. For example, on page 2 of his
brief he tries to show that DeWeese called his attention
to the fact that the highwall on the left bench was falling
in . All that DeWeese actually told him was that he had
seen a crack in the sloping embankment above the 15-foot
highwall which then existed and that Pantuso should keep an
eye on the highwall while working on the left bench. Pantuso
had not even seen the crack until it was pointed out to him
by DeWeese and the on+y -reason DeWeese saw it was that he was
operating a dozer within 2 or 3 feet of the 15-foot highwall
and his tractor was high enough to make his eyes about even
with the top of the highwall so that he could observe the
crack in the embankment at .a point which was about 10 feet
above the highwall . The only material which had fallen from
the highwall was coming from the sloping embankment above
the highwall and there was such a small amount of material
that it only took DeWeese 25 to 30 minutes to clean off the
bench so that initial drilling could be started on the left
bench (Tr . 324-325} . At no time while Pantuso worked on the
left bench was there ever a crack in the highwall itself.
All of the cracks and claimed hazards in the highwall were
in old spoil which had been made above the -highwall as a
result of prior mining (Tr. 741 ; 749; R Exhs. 6 & 7).
On page 3 of Pantuso's brief, he cites Ramsey ' s testimony to support a claim that the drill was moving in the
direction of the area where the crack mentioned by DeWeese
existed, but the testimony cited is on page 393 and examination of that testimony shows that Ramsey was confused by
having been shown some pictures made on September 12 to show
what sequence of drilling existed on August 20. Between
August 20 -and September 12 , two different shots had been .set
off on the left bench and the leyel of the bench had been
lowered about 25 feet by having two dozer operators push
away all the loose earth resulting from those shots. The
direction of drilling_discussed by counsel at pages 393 to
·.

·' ('5
2... lv

395 is impossible to determine because the Chairman of the
WV Board and counsel for the parties discuss exhibits in
terms , such as " here", which are not subject to clear interpretation by anyone who was not present in the hearing room
at that time.
The photographs which are a part of this record were
a l l made on September 12 which was 11 days after Pantuso's
discharge and after the dozer operators had. lowered the
level of the bench by 25 feet . As I stated at the outset of
this decision (p. 3 above), the pictures a r e completely void
of interpretation because of their poor reproduction and I
have not based any findings of fact on what may or may not
be determinable f r om the originals of those pictures . Even
t he original photographs were criticized by the witnesses as
being of poor quality (Tr. 277 : 772: 1036) .
On page 4 of Pantuso ' s brief, he concentrates on showing that Holbrook is a person given to rages who will not
listen to people when they try to talk to him. I have
already dealt with that claim in the preced.i ng part of this
deci sion (pp. 25- 26) and it should not be given any credence
as the incident involving Billy Christian is presented in a
greatly biased manner.
Pantuso ' s brief (p. 5) primarily deals with an exaggerated description of the terrible condition of the access
road leading to the left bench. I have already shown in
this decision (pp. 19 and 28) that both Pantuso's and
Browning's descrip.t ion of the access road must be completely
rejected because of their claims that it could be traveled
easily and speedily on September 1, but was almost impassable the day before, despite the fact that no work had been
done on it between 2 p.m. on August 31 and 5 : 40 a . m. on
September 1.
On page 6 of his brief, Pantuso repeats how serious
conditions on the left bench were as of August 30, but what
he fails to make clear is that he had .already done all the
drilling in the area where dirt from the embankment occasionally fell on the left bench ~nd that those holes, including the so- called "dummy" holes, had been shot on August 26 '(Finding No . 21, R Exh. 9) . Therefore, on August 30
Pantuso was in no danger whatsoever from anything unusual
and all his discussion of the terrible conditions which
existed on August 30 are simply exaggerations made to support his claim of withdrawal on September 1 when he was
discharged.
Pantuso's brief (p. 7) makes the astonishing claim that
management was discriminating against him by suddenly on

2 16.6

August 31 telling him that in the future he would be expected
to report for work on time instead of coming in late as he
admitted had been his practice . As I have previously explained
{Finding Nos . 9 and 10), it had been called to the attention
of Kirk that some miners, including Pantuso and Browning ,
were regula~ly reporting late for work and Kirk had instructed
the foremen to start enforcing the requirement that miners
report to work on time .
Pantuso's brief (p. 8) cites Browning ' s testimony at
page 568, but the witness who was testifying on page 568 was
Lane, Lane was not discussing the subject attributed to
Browning on that page , but on page 559 Lane does say that
Pantuso .claimed a need for having his own means of transportation. Nevertheless , Lane did not think that was a sufficient reason to refuse to obey a direct order by Tackett
that he and Browning get into Tackett ' s Cedar-owned vehicle
for transportation to their working site . That is the reason
that Lane advised Pantuso to ride with Tackett and file a
discrimination grievance.
Pantuso's brief (p. 8) continues with an exaggerated
description of the hazardous conditions which allegedly
existed on August 31 , but I have shown on pages 20 and 22 of
this decision that those claims are not supported by the
preponderance of the evidence.
Pantuso's brief (p. 10) incorrectly states that when
Pantuso arrived at Kirk's office for the 8 a . m. meeting
held on September 1 that Pantuso tried to explain to Holbrook
at that time that his suspension was safety-related. Pantuso
cites transcript page 887 in support of that claim, but on
that page Holbrook was discussing events which occurred at
the portal just a few minutes after Holbrook had told Pantuso
that he was suspended subject to discharge pending a further
determination at a meeting in Kirk's office which was to be
held at 8 a.m. Pantuso was given full opportunity to advance
his claims of safety at the meeting which was postponed until
Kincaid, a UMWA inspector, could travel to Kirk ' s office to
attend the meeting {Tr. 247).
Pantuso ' s brief {p. 11) cites Lane's testimony at transcript page 887 , but Holbrook was testifying on that page of
the transcript.
The testimony which Pantuso apparently intended to cite appears on page 565 of the transcript. Also
on page 11 of his brief, Pantuso claims that Ramsey discussed
a conversation at the 24/48- hour meeting , but Ramsey did . not
think that he was present for t~e 24/48-hour meeting and the
discussion about whether any area on the left bench should
be blocked off occurred before the 24/48- hour meeting. Additionally , Pantuso incorrectly states on page 11 that the

2187

"shooter" of explosives, Paul Harold, expressed to Ramsey
a belief that the left bench was unsafe • . Ramsey's exact
testimony on page 448 with respect to Paul Harold is as
follows: "His opinion that the drill bench wasn't unsafe"
(Tr. 448) •
Pantuso's brief (p. lZ) improperly relies upon the
testimony of WV Inspector Wiseman to support his claim that
conditions on the left bench constituted an imminent danger
on September 1, the day of Pantuso's discharge . As I have
previously explained in Finding Nos. 19 and 20, Wiseman .
inspected the left bench on September 6 and found no violation of any safety standard, much less the imminent danger
which Pantuso alleges existed. On September 6 Wiseman did
not even ~o on the left bench to make his examination (Tr.
521). He stated unequivocally that the two dozer operators
who were working on the left bench were not exposed to any
imminent danger even though they were work1ng in the precise
area where Pantuso claimed conditions were hazardous. While
Wiseman did say that he would have issued an imminent-danger
order if a drill had been working on the left bench, he
never did explain why it was safe for the dozer operators to
work there in perfect safety but would have been unsafe for
drilling to be done in the same place (Tr. 522).
It is also incorrect for Pantuso to rely upon Wiseman's
issuance of an imminent-danger order on September 12 to support his claim that an imminent danger existed on September 1
because the imminent-danger order was issued solely because
Tackett had failed to erect danger signs near the place
where materials occasionally fell from the embankment above
the highwa.ll which \.Vas then 4 0 feet high, but which was only
15 feet high on September 1 . As I have already explained in
Finding Nos. 19 through 21, circumstances on the left bench
had changed considerably between Pantuso's discharge on September 1 and the issuance of ·the imminent-danger order on
September 12. Moreover, Wiseman did not stop the drilling
operator from continuing to work because Tackett had instructed him to stay outside the area · of imminent danger.
Consequently, even if Pantuso had still been working on the
left bench on September 12 , he would not have had to stop
working because of the issuance of the imminent-danger order.
Therefore, it is a complete distortion of the facts in this
case for Pantuso to argue that conditions on the left bench
on September 1 constituted an imminent danger.
Pantuso's brief (pp. 15-18) endeavors to establish ~he
fact that Pantuso had refused :to obey Holbrook's order because of his concerns related " to safety, but the arguments
are based on the facts erroneously stated in the first part
of the brief. Since I have shown that conditions on the

21'88

left bench did not constitute an immineht danger or even
expose him to any unusual hazard , as claimed by Pantuso,
his argument that his discharge was motivated by his safety
activities must be rejected.
Pantuso's brief (p. 19) cites the Dunmire and Estle
case which I referred to on page 17 of this decision .
Pantuso claims that he communicated his concerns about the
safety of the left bench to Ramsey and Holbrook at the
time of his suspension, but as I have shown on pages 17 to
24 of this decision, that claim has not been proven.
It
is true that Pantuso raised a safety- related defense at
the meeting scheduled to be held at 8 a.m. Raising the
defense within 2 hours after the suspension would probably
satisfy the criteria expressed by the Commission in the
Dunmire and Estle case , but the Commission also held that
the refusal to work in a dangerous place should be based
upon a reasonable belief that the hazard actually existed .
The preponderance of the evidence , however, shows that the
alleged hazardous conditions did not exist and Pantuso and
Browning could not really have had a good- faith belief that
the left bench was so dangerous that they .could not work
there . Moreover , as I have noted on pages 24, 28 , and 29
of this decision, Pantuso had been ordered to go to the right
bench to work with Wiseman , instead of Browning whose drill
was on the left bench. Pantuso did not even allege that
conditions on the right bench were so hazardous that he had
withdrawn from working on the right bench . He did allege
that Cedar was in violation on the right bench, but the only
specific claim he made as to the right bench was lack of a
light plant (Tr. 147) .
As I have already shown on page 20
above, by the time the drill operators had finished their
preshift examination·s and the preshift reports had been
picked up by a foreman, there was enough daylight to enable
the miners to observe the condition of the highwall .
He
also claimed that Wiseman ' s drill would have to be moved to
the left bench, but that was based on a supposition which
was never proven.
Pantuso • s brief (pp . 20-25) is devoted to an argument
showing that Cedar's defense in this proceeding is only
pretextual and cannot be considered as a showing that Pantuso would have been discharged for his unprotected activity
alone even if one were to concede that he proved that his
discharge was motivated in any way by his protected activities . In this proceeding , it is Pantuso who has raised the
issue of ·s afety as a pretext to support his claim that he
was engaged in a protected activity at the time of his
·
discharge .
As I have noted iri Finding No. 6 of this deci sion, Pantuso had filed a grievance on behalf of himself and
others seeking damages if their vehicles became damaged by

216 9

driving over Cedar ' s roads . Pantuso also sought to have Cedar
supply him with a rental car if his Jeep had to be repaired .
Therefore, Cedar had a justifiable reason for ordering Pantuso
to get into a Cedar-owned vehicle for transportation to his
working site. The fact that no other miner had been ordered
to accept transportation in a company- owned vehicle is immaterial because Pantuso is the one who had made an issue of
being reimbursed for any damages which his Jeep might incur
from being driven over Cedar's roads . Management gave a
justifiable reason for insisting on transporting Pantuso to
his working site any time the road was considered to be
rough enough for Pantuso's Jeep to become damaged. Cedar
should not be continually exposed to having to defend itself
against grievances filed by Pantuso to collect payment for
any damages that might incur as a result of his driving his
own Jeep to his working site when it could avoid that sort
of grievance simply by transporting him in a company-owned
vehicle.
While I have shown on pages 19 and 28 above that Pantuso contradicted himself by saying the access road was very
rough and muddy up to September 1, but was in fine shape on
that day because of his unsupported claim that he gave the
left bench a preliminary inspection before reporting for
work at the portal, Cedar ' s foremen consistently agreed
throughout the hearing that the access road was muddy and
rutted and that there was a possibility that Pantuso's Jeep
could receive some damage by being driven over the access
road (Tr . 420; 896; 952) .
Pantuso's brief (p. 24) attempts to defend his threat
to knock Kirk's nose off as being a justifiable act because
his threat was provoked by Kirk's having shaken his finger
at Pantuso when Pantuso claimed that the meeting about his
suspension subject to discharge would not have been necessary if Kirk had paid attention to Pantuso's safety complaints. Kirk had come out of his office to advise the
miners that the meeting scheduled for 8 a.m. would be delayed. Kirk testified that he answer~d a number of questions before he threatened to have Pantuso removed from
the property if he heard any more outbursts from him . The
meeting was being held to give Pantuso an opportunity to
explain his conduct and Pantuso should have been willing
to wait a reasonable period of time for additional personnel to travel to the meeting site. After all, part of the
delay was ·necessary so that the UMWA inspector called by
Lane , a mine committeeman, could be given time to get to
Kirk's o~fice .
Pantuso tried to minimize his threat to knock Kirk's
nose off by claiming that he made the statement to Browning,

rather than to Kirk. Browning's testimony fails to support
Pantuso's claim that his action did not constitute an assault
because Browning testified that "Bill Lane, Frank McCartney,
and a couple of other guys grabbed Fred [Pantuso] and moved
him back and I stepped in between them" (Tr. 355). If Pantuso's conduct had not been extremely aggressive, there
would not have been a need for four miners to restrain him
while another miner stepped between him and Kirk. Pantuso,
on a prior occasion, had been suspended for 5 days when he
became involved in a fight with another miner (Tr. 915;
1005; 1010). On that occasion, Pantuso claimed that the
other miner was the aggressor (Tr~ 151), ·but the other
miner was the one who had to go to the office and have blood
washed from his face (Tr. 917).
Therefore, I must reject Pantuso ' s arguments to the
effect that he satisfied the criteria of the Dunmire and
Estle case by proving that he had a bona fide belief that
he was being ordered to work under hazardous conditions.
I also believe that Cedar's evidence satisfies the test of
showing that Pantuso would have been discharged for his
unprotected activities alone even if it had been proven,
which was not the case, that Pantuso's discharge was motivated in any part by his protected activities.
The last portion of Pantuso's brief {pp. 26-31) is
devoted to ·a discussion of the additional interest which
is due on the back pay for which Cedar has already reimbursed
Pantuso pursuant to an order of the WV Board. It is unnecessary for me to consider any "relief" issues in view of the
fact that my decision fails to find that a violation of
section 105(c) {1) of the Act has been proven.
The Arguments Advanced in Cedar's Initial Brief Are Based on
a Predominantly Correct Analysis of the Evidence and Should
Be Accepted
There are few factual errors in Cedar's initial brief.
There is one on page 5 which is probably a typographical
error, but it should be noted lest it be misleading. On that
page, Cedar inadvertently stated ·that Pantuso arrived at the
portal at 6:55 a.m. on September 1, 1983, the day of his
discharge. As I have noted many times before (e.g. Finding
No. 14), his arrival time was 5:55 a.m.
-Cedar·' s initial brief (pp. 10-11) refers to the holding of the 24/48-hour meeting_provided for under the NBCWA
as having been held on Septemqer. 1, 198 3. That is incorrect as witness Bess stated that the 24/48-hour meeting
was held at 2:25 p.m. on September 2, 1983 (Tr. 54) and
Cedar's counsel pointed out at the hearing that the 24/48-

2171

hour meeting was held on September 2, 1983 (Tr . 448).
Also the arbitrator stated on page 2 of his decision that
the 24/48-hour meeting was held on September 2, 1983, and
on page 6 of his decision, he noted that Cedar held an
investigative meeting on the morning of September 1, 1983
(C Exh. 2, pp. 2 & 6). Deems explained the difference in
the two types of meetings (Tr. 1013; 1016).
Cedar's initial and reply briefs are both written with
skill and attention to detail, but it almost appears as if
two different attorneys -may have written them on behalf of
Mr. Price because on page 12 of Cedar's initial brief, Cedar
enters into a lengthy discussion in which it is willing to
assume, arguendo, that Pantuso's discharge was motivated,
in part, by his having engaged in protected activity, but
in Cedar's reply brief, Cedar appropriately argues that
Pantuso failed to prove that his discharge for refusal to
obey Holbrook's order and for his threat to knock Kirk ' s
nose off was in any way motivated by a protected activity .
Pages 24 to 30 of Cedar's initial brief are devoted to
arguing "relief"· issues and assessment of a civil penalty.
Inasmuch as my decision denies Pantuso's complaint, it is
unnecessary for me to discuss that portion of Cedar's brief.
Pantuso's Reply Brief Correctly Argues Two Legal Points
Pantuso's reply brief fails even to discuss the many
weaknesses in his presentation which were pointed out in
Cedar's initial brief • . The 5-page reply brief does, however,
correctly deal with two legal issues which were advanced in
Cedar's initial brief. Pages 1 through 3 of the reply
brief correctly state . that the Commission and its judges
are not bound by an arbitrator's findings . Pantuso ·properly notes that the Commission held in its Pasula decision,
cited on page 5 above, that a judge should give the arbitrator's decision weight if there is congruence between the
issues raised under the Act and those raised under the NBCWA •
....

....

I believe that my decision in this proceeding gives the
arbitrator's decision as much weight as it is entitled to
receive when the vast difference between the record which
was before the arbitrator is compared with the record which
is before me.
The record before the arbitrator was never
transcribed and he erased the tapes before Cedar's counsel
could obtain them for the purpose of having them transcribed
(Tr. 1092). Therefore, the only way I can evaluate the
evidence which was before the arbitrator is to assume that
his decision discusses the primary points raised by the
witnesses.

21'72

The most obvious difference between the record before
the arbitrator and the one before me is that the 1 , 116
pages of transcript which . comprise the testimony before me
resulted from 9 days 4/ of hearing, whereas only 1 day of
hearing was held before the arbitrator (C Exh.' 2 , p. 3) .
Wi thout attempting to cover all the differences between the
record before the arbitrator and the record before me , the
following points come readily to mind :
Pantuso and Browning apparently did not claim before the
arbitrator that they had gone to the left bench on the morning
of September 1 , 1983 , to make a preinspection of the conditions on the left bench.
Pantuso does not appear to have claimed before the
arbitrator that he tried to tell Holbrook that he had withdrawn because of the hazardous conditions which existed on
the left bench.
Pantuso admitted in the hearing before the arbitrator
that he had not given Ramsey any reason for claiming that
he was withdrawing and the arbitrator held that Pantuso
could not sustain a case of withdrawing under article III(i)
of the NBCWA on the basis of alleged hazards which had only
been communicated on a previous day.
No WV inspector seems to have testified in the hearing
before the arbitrator , but he still relied upon orders introduced at his hearing or on statements by witnesses pertaining to actions taken by a WV inspector. Nevertheless,
the arbitrator found that a WV inspector believed that an
imminent danger existed on the left bench on September 6
and that he failed to issue an imminent- danger order on that
day because Kirk had told him no one was working on the left
bench .
In this case , however, a WV inspector testified that
he observed two dozer operators working on the left bench on
September 6 and that they were not exposed to an imminent
danger even though they were working in the area of the socalled slip which Pantuso claimed to ~e very hazardous. Also
4/ Pantuso's brief (p . 13) fails to show that the last day
of hearing was held on December 2, 1983 . Cedar ' s reply brief
(p. 20) refers to the hearing as having lasted 12 days , but
I have summarized each and every day of the hearing and the
total number of hearing days is 9.
If 12 days of hearing
were held before the WV Board, 3 of those days of hearing
were not transcribed.
Since no _one cites a transcript page
which is higher than 1,116 , I -am confident that the transcript mailed to me constitutes the entire record on which
the parties rely .

2173

in this case, the WV inspector stated that his order of withdrawal issued September 12 did not apply to the area where
the drill was being operated on that day. Furthermore ,
there was extensive evidence in this case showing beyond
any doubt that conditions on September 12 had changed
greatly from the way they were on September 1. Consequently , what might have been held to be an imminent danger
on September 12 did not even exist on September 1 when
Pantuso was discharged (Finding Nos. 19- 21 above).
The arbitrator does not appear to have had before
him the extensive evidence which exists in the record before me showing that Pantuso had a proclivity for reporting nonexistent violations to both MSHA and the WV Department of Mines (Pages 30-31 above).
The arbitrator did not have the extensive evidence
which exists in this case showing that · Pantuso ' s allegations
about having no means of communication or nearby toilet
facilities were without actual factual support (Finding
No . 12 and pages 21- 23 above).
There was apparently no evidence before the arbitrator
showing that Pantuso and Browning had refused to follow
Kirk's written directive that helpers to the drill operators
should remain outside the cab of the drill so as to be able
to keep an eye on the drill and surrounding area to make
sure that no hazardous conditions were developing which
might threaten the safety of the drill operators .
There was apparently no evidence in the arbitration
case showing that Pantuso's primary reason for refusing to
ride with Tackett was his determination to drive his own
Jeep to the working site despite the fact that he had filed
a grievance seeking to be reimbursed for any damages which
his Jeep might incur as a result of driving it to his work ing site .
His grievance also sought to have Cedar provide
him with a rental car to drive to work while his Jeep was
being repaired (Tr . 161}.
. .. •
The arbitrator apparently - did not have evidence before
him showing that Pantuso had been told by Ramsey that
Pantuso would be working with Wiseman , instead of Browning, which meant that Pantuso would not be working on the
left bench in any event.
While the arbitrator mentioned several times in his
decision that there was confl-icting evidence, he did not
try to reconcile the conflicting evidence and made his f i ndings on the basis of evidence as to which there was no conflict.
Despite the limitations which that placed on his

~ 1 ..,
,_
( 4

findings, he held that Cedar had carried its burden of proving that Pantuso committed the offenses of thrice refusing
a direct order and did threaten to strike a -supervisor.
While he held that those offenses were sufficient cause to
merit discharge, he said that he thought the offenses were
associated with enough safety concerns to justify a 90- day
suspension instead of discharge .
If the arbitrator had had the extensive evidence before
him which has been presented in the record before me , it is
highly likely that he would have upheld the discharge as
juptified because he placed more weight on some sort of
evidence concerning a WV inspector ' s actions than would
have been warranted if he had had the testimony of the two
WV inspectors who testified in this proceeding .
In Pantuso ' s reply brief (pp. 3-4), he correctly
argues that a complainant has a right under the Act and
its legislative history to refuse to work in an area
which confronts him with a threat to his health and safety
and that he does not have to show in a proceeding under
section lOS(c) (2) of the Act that he would be exposed to
the imminent danger which is required to permit a miner to
withdraw himself and others under article III(i) of the
NBCWA. Of course , as I have shown in my decision , Pantuso
did not prove that he would be exposed to any hazards beyond those normally incurred in working in a surface coal
mine if he had obeyed Holbrook ' s order and had ridden with
Tackett to the right bench to work with Wiseman . Moreover ,
neither Pantuso nor Browning showed, after Holbrook had
suspended Pantuso subject to discharge, the slightest
concern on September 1 about the fact that other miners
were scheduled to go to work on the left bench where the
alleged imminent danger still existed (Pages 26- 28 above).
The Arguments in Cedar's Reply Brief Are Supported by the Record
Pages 1 through 12 of Cedar's reply brief are devoted
to showing that Pantuso's initial brief contains many
factual errors as well as a failure to consider all the
evidence, rather than just the portions which support the
arguments which Pantuso makes in his initial brief. I
find that Cedar's analysis of the factual aspects of Pantuso ' s initial brief is correct and Cedar's comments augment my finding on pages 32- 39 above that the arguments in
Pantuso ' s initial brief should be rejected for his failure
to make a correct analysis of all the evidence .
The only factual error I ~etected in Cedar ' s reply
brief (pp. 10- 11; 17) is the same one I noted in Cedar's
initial brief, that is, the failure to realize that the

21 ·r 5

24/48-hour meeting pertaining to Pantuso's suspension subject to discharge occurred on September 2 rather than September 1 when Cedar's own investigative meeting was held
( Tr • 54 ; 4 4 8 : 1 0 13 ; 1 o16 ) •
Summary
The 21 findings of fact on pages 6 through 16 above are
based on all of the credible evidence introduced by the
parties. They show that Pantuso failed to prove that a violation of section l05(c) (1) occurred when Pantuso was discharged on September 1, 1983. When Pantuso refused to obey
Holbrook's thrice-repeated direct order to get into . the
Cedar-owned vehicle with Tackett for transportation to the
right bench, he failed to raise any claim that he was refusing the direct order because he had withdrawn from working
on the left bench under article III(i) of the NBCWA. Even
if it had been proven that some unusual hazard existed on
the left bench, Pantuso had not been asked to go to work on
the left bench and the convoluted reasoning used by Pantuso
to claim that he would eventually have ended up working on
the left bench because his and Browning's drill was still
being repaired is not supported by the preponderance of the
evidence. If one uses Pantuso's argument that he would
eventually have been working with Wiseman on the left bench,
that alleged hazardous eventuality would not have occurred
until Wiseman's drill could have been moved from the right
to the left bench. That would have given Pantuso ample time
within which to have invoked the provisions of article
III(i) of the NBCWA and for the union and Cedar's management
to have engaged in all the conferences required before a
withdrawal can be carried out under that article.
The preponderance of the evidence, however, shows that
no hazards existed on the left bench which would have been
adequate to justify refusal to obey an order which would,
at most , under Pantuso's argument , have sometime during
the day have placed him on the left bench . He had already
testified that on the morning o f September 1, the road was
easily subject to travel by a vehicle having only two-wheel
drive.. . Browning's summoning of Ramsey to transport him to the
toilet on August 31 showed that it was easy to obtain transportation off the bench in case of emergency or to find a
means of communicating with the foremen in case of an
emergency . Even if the repairs on Browning's drill had
been completed at sometime during the shift on September 1,
the drill would not have been operated ..un<iier the area where
rocks and dirt sometimes fell - from the embankment above the
15-foot highwall which then exis.ted. According to the
testimony of the WV inspectors, the imminent-danger order
issued on September 12 pertained only to Cedar's failure to

2176

erect danger signs and not because a drill was being operated
outside the area of the designated imminent danger . On September 12 the highwall had been increased to a height of 4 0
feet which made the falling of any rocks much more hazardous
than they would have been on September 1 when the height of
the wall was only 15 feet.
The preponderance of the evidence, therefore , does not
support Pantuso's claim that he had a reasonabl e basis,
under the Commission's Dunmire and Estle decision , to warrant a refusal to obey Holbrook ' s order that Pantuso get in
the truck with Tackett for transportation to the right bench
where no hazards had been alleged on August 31 or September 1.
Even if Pantuso had been ordered to go to the left bench,
the conditions there were not hazardous enough to justify
a refusal to ride to the left bench. Finally , Pantuso did
not have any safety- related excuse for threatening to knock
Kirk's nose off just prior to the investigative meeting
held at 8:45 a.m. on September 1, 1983 .
The real pretext in this proceeding is Pantuso ' s
claim that his refusal to obey Holbrook's order was moti vated by safety- related considerations . A pretextual
claim that a complainant was engaged in a protected activi ty
is no more entitled to be upheld than· an operator's pretextual claim for having discharged a miner. I find that
Pantuso failed to prove that he was engaged in a protected
activity when he was discharged for refusing three direct
orders and for having threatened to strike a supervisor .
WHEREFORE , it is ordered:
For the reasons hereinbefore given, Pantuso's discrimination comp laint filed on April 26, 1984 , in Docket No . WEVA
84-193-D, is dismissed for failure to prove that a violation
of section 105(c) (1) of the Federal Mine Safety and Health
Act of 1977 occurred .

~C. Pl

Steffey~

Richard C .
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)
Joseph M. Price, Esq. , Robinson & McElwee, 600 KB&T Center ,
Post Office Box 1791 , Charleston , WV 25326 (Certified Mail)
yh

217'7

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

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

v.
ST. JOE RESOURCES COMPANY,
Respondent

.
.
.

DEC 171985

CIVIL PENALTY PROCEEDING

.:•
.

Docket No. YORK 85-8-M
A.C. No. 30-01185-05514
Balmat Mine No. 4 & Mill

DECISION
Before:

Judge Melick

This case involves a civil penalty proceeding under
section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801 et seq . , the "Act."
The issue is
whether a proposal for penalty should be dismissed because of
its late filing under Commission Rule 27.1
On November 13, 1984, St. Joe Resources Company (St.
Joe) was cited for a violation of the regulatory standard at
30 C~F.R. § 57.14013. The Secretary proposed a penalty of
$20 and St. Joe filed a timely notice of contest on June 21,
1985. On October 10, 1985, the Commission's Chief Judge
ordered the Secretary "to show cause within 30 days of the
date of [the] Order, [why] the case should not be dismissed"
for not filing a proposal f or penalty within 45 days of the
date the Secretary received a timely notice of contest.
Commission Rule 27, supra. Subsequently, on October 18,
1985, the proposal for penalty was filed by the Secretary
accompanied by a letter addressed to the Chief Judge stating
as follows:
Enclosed is a copy of the proposal for a penalty
that was mailed to the Review Commission and the
respondent on September 24, 1985. We have been
!commission Rule 27, 29 C.F.R. § 2700.27 provides in pertinent
part: (a) When to file. Within 45 days of receipt of a
timely notice of contest of a notification of proposed
assessment of penalty, the Secretary shall file a proposal
for a penalty with the Commission.

21 '78

contacted by Mr. Heller, an attorney representing
the respondent, who has already received their
copy of the penalty proposal. We trust this
satisfies the October 10, 1985 order to show
cause as to why this case should not be dismissed.
Even assuming, arguendo, that the Secretary filed his
proposal on September 24, 1985, as he alleges, that filing
was at least 49 days late.
In Secretary of Labor v. Salt Lake County Road Department, 3 FMSHRC 1714 <1981), the Commission held that although
its Rule 27 was not a statute of limitations, if the Secretary seeks permission to ~ile an untimely proposal for
penalty he must predicate his request upon adequate cause.
In this case the Secretary has failed to state any grounds
for his untimely filing. Accordingly the Respondent's
request to dismiss these prqceedings is granted.
ORDER
These civil penalty proceedings
therein (Citation No. 2367889) are her

the citation
dismissed.

'
Law Judge
Distribution:
Douglas Weiner , Esq., Office o the Solicitor, U.S. Department of Labor, 1515 Broadway, Room 3555, New York, NY 10036
(Certified Mail>
Sanders D. Heller, Esq., 23 Main Street 6 Gouverneur, NY 13642
{Certified Mail)

rbg

2179

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

December 18, 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
UTELITE CORPORATION,
Respondent

..
.
.
.

CIVIL PENALTY PROCEEDING
Docket No. WEST 84-155-M
A.C. No. 42-00071-05503
Utelite Mine

DECISION
Appearances:

Margaret Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Mr. Carsten Mortensen, Utelite Corporation, Coal~
ville, Utah,
pro. se.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges respondent with violating a safety
regulation promulgated under the Federal Mine Safety and Health
Act , 30 u.s.c. § 801 et seq., (the Act).
After notice to the parties, a hearing on the merits took
place in Salt Lake City, Utah on September 19, 1985.
The parties waived post-trial briefs.
Citation No. 2084153 proposes a penalty of $74 and alleges
respondent violated 30 C.F.R. § 55.14-1 which provides as
follows:
Guards
55.14-1 Mandatory. Gears; sprockets; chains; drive~ head,
tail, and takeup pulleys; flywheels; couplings; shafts;
sawblades; fan inlets; and similar exposed moving machine
parts which may be contacted by persons, and which may
cause injury to persons, shall be guarded.

2180

Issue
The issue centers on the appropriate penalty for the
violation of the regulation.
Stipulation
After commencement of the hearing the parties stipulated
that respondent violated the regulation.
Further, it was agreed that the unguarded sprocket was
separated from a walkway by a welded handrail . A miner could not
accidentally trip or fall into the sprocket. A miner would not
be near the sprocket and inside the handrail unless he was doing
routine maintenance. In those circumstances the machine would
have been tur~ed off (Tr. 6-8).
A computer printout indicates that in the two year period
before July 11, 1984 six violations were assessed against
respondent <Exhibit Pl).
The company employs 20 workers in its open pit mine. It
further has a capacity of producing 200,000 yards of material a
year. Further, the proposed penalty will not cause undue
hardship on the respondent. The condition was rapidly abated
(Tr. 8-11).
Discussion
The statutory criteria for assessing a civil penalty is contained in Section llO(i) of the Act, now 30 U.S.C. § 820(i). It
provides as follows:
{i ) The Commission shall have authority to assess all
civil penalties provided in this Act. In assessing civil
monetary penalties, the Commission shall consider the
operator's history of previous violations, the appropriateness of such penalty to the size of the business of
the operator charged, whether the operator was negligent, the effect on the operator's ability to continue
in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation.
In connection with the above, I consider that respondent's
prior history of six violations in the two years before July 11,
1984 is not excessive. I further find that, with only 20 workers
and a small capacity, the operator's size should be considered as
small. The fact that a welded handrail separated workers from

2181

the unguarded sprocket causes me to conclude that both negligence
and gravity are not severe. The assessment of a penalty will not
cause a hardship on the operator, which rapidly abated the
violative condition.
In view of the statutory criteria, I conclude that the
proposed p~nalty of $74 is excessive. I believe $30 constitutes
an appropriate penalty.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of this decision, the following conclusions
of law are entered:
1.

The Commission has jurisdiction to decide this case.

2. Respondent violated 30 C.F.R. § 55.14-1 and the citation
should be affirmed and a penalty assessed for the violation.
ORDER
Based on the foregoing facts and conclusions of law I enter
the following order:
1. Citation No. 2084153 is affirmed and a civil penalty of
$30 is assessed.

2. Respondent is ordered to pay to the Secretary the sum of
$30 within 40 days of the date of this decision.

Law Judge
Distribution:
Margaret Miller, Esqo, Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Utelite Corporation, Mr. Carsten Mortensen, Plant Manager, P.O.
Box 387, Coalville , UT 84017 (Certified Mail}
/blc

2182

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

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

DEC 191985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

.

.

v.

YOUGHIOGHENY & OHIO COAL CO.,
Respondent

Docket No. LAKE 85-90
A.C. No . 33-00968-03605
Nelms No. 2 Mine

.

DECISION
Before:

Judge Melick

This case is before me on remand by the Commission on
December 12, 1985, to "enter the necessary findings as to
each of the six statutory penalty criteria supporting" the
$750 penalty assessment for the violation of the regulatory
standard at 30 C.F.R. § 75.305.1
The violation as charged in Order No. 2330535 reads as
follows:
The absence of dates, times and initials indicates that the weekly examinations of the left
and right return air courses were not being conducted. There was [sic] no entries made in the
approved book on the surface that the return air
courses had ever been examined on a weekly basis.
Youghiogheny & Ohio Coal Company (Y&O) does not dispute
that the cited standard requires weekly examinations to be
performed in the left and right return air courses as alleged
and that the person making such examinations is required to
place his initials and the date and time at the place

lThe penalty criteria are as follows:
"The operator's history of previous violations, the
appropriateness of such penalty to the size of business of
the operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in business, the
gravity of the violation, and the demonstrated good faith of
the person charged in attempting to achieve rapid compliance
after notification bf a violation." 30 u.s.c. § 820(i).

2183

examined. Y&O maintains that except for the period between
March 13, 1985 and April 9, 1985, proper examinations had
been made. It is not disputed however that during an underground inspection of the Nelms No. 2 Mine conducted by MSHA
Inspector James Jeffers on April 9, 1985, neither Jeffers nor
Y&O Safety Director Don Statler were able to locate any
dates, times or initials of mine examiners or any other
evidence that any part of the 1,300 feet of the right and
left air courses had ever been examined in accordance with
the cited standard.2
Jeffers and Statler returned to the surface and
examined the books in which the examinations of the cited air
courses were required to be recorded. Assistant Mine· safety
Director Robert Oszust joined in the examination. At that
time neither Don Statler nor Robert Oszust was able to show
Jeffers any evidence of entries corresponding to inspections
of the cited air courses. Indeed Y&O continued to admit as
recently as when it filed its Answer in these proceedings on
September 12, 1985, that the examinations had not been
recorded. At the hearings in this case however, only 13 days
later, Statler testified that entries in the record book did
exist and that they corresponded to examinations of the air
courses on February 6, 1985, February 16, 1985, February 21,
1985, February 27, 1985, March 6, 1985 and March 13, 1985.
The entries are not however so unambiguous as to permit
the unquestioned acceptance of this testimony. Moreover the
one person who could have clarified this matter and answered
the more important question of whether the air courses were
actually inspected was not called as a witness by the mine
operator and his absence was not explained. This person was
Bill Dennis r the fire boss who it is now purported conducted
the first five of the examinations . Under the circumstances
Statler's testimony in this regard is without a credible
foundation.
Within this framework I conclude that, with one excepi:l.on , the required Heekly examinations of the air courses had
not been made from February 6 1 1985 to April 9, 1985. The
one exception is based upon Statleris testimony that he saw
substitute Fire Boss Roy Kohler perform an examination of the
air courses on March 13 , 1985. Statler also admits however
that he does not know whether any weekly examinations were
performed between March 13 and April 9 , 1985, and concedes
· that there were no entries in the record book corresponding
to any examination between those dates.
2statler testified that he found one notation pad on the outby
side of the A Entry return regulator but there is no indication that there were any entries on that pad.

2184

According to the undisputed testimony of Inspector
Jeffers, the failure to conduct weekly examinations could
lead to the accumulation of float coal dust in the cited air
courses. Indeed it is undisputed that float coal dust was in
fact present throughout at least 500 to 600 feet of the right
return air course at the time of this inspection and was
admittedly an unsafe condition and a violation of the
standard at 30 C.F.R. § 75.400.
According to Jeffers areas of the mine containing
ignition sources such as electrical equipment including
ventilation fans, a battery charger and a rock dusting
machine, were vented directly into the air courses. He
opined that the accumulations of float coal dust in the air
courses could propagate fire or explosions from those areas
exposing the seven miners working inby to serious injuries.
Jeffers also observed that there had been a prior ignition at
this mine of hydrogen gas from one of the battery chargers.
Statler testified that he was not aware of such ignition
sources but did not contravene Jeffer's testimony in this
regard. Under the circumstances I find that the violation
herein was quite serious. The hazard was particularly
aggravated by the lengthy period during which the examinations had not been performed. Indeed each failure to conduct
a weekly examination at each required location could have
properly been charged as a separate violation subject to a
separate civil penalty.
The violation was also the result of operator negligence. The fact that proper examinations were not being
performed should have been obvious from the absence of
required notations in the air courses. In addition the
existence of admittedly violative amounts of float coal dust
over 500 to 600 feet of the right return air course in an
area frequented by supervisory personnel should have led to
the discovery of this violation. Indeed Safety Director
Statler conceded that a section foreman should have discovered the float coal dust in the air course and was
»surprised" that it had not been found.
In addition since both the Mine Safety Director and his
assistant were apparently unable to determine (until the
Safety Director testified at hearing) from the ambiguous
entries in the record book that proper examinations of the
air courses were being made it is apparent that at the very
least the entries were not adequate to clearly show to management that the examinations were in fact being made. For this
addition~l reason the mine operator should have been alerted
to the problem and seen to it that the examinations were
being made and were clearly recorded as having been made.
The admitted absence of any entries in the record book for
the period subsequent to March 13, 1985, should also have

2135

been known to management in light of the requirement for
supervisors to countersign those entries.
In assessing the penalty _in the decision below I also
considered the undisputed evidence concerning the remaining 4
criteria. It was stipulated that the mine operator was of
"moderate" size and that the propose~ penalties would have no
affect on its ability to continue in business (Tr. 5). The
undisputed history report of violations (Ex. G-11) shows that
overall the operator had a record preceding the date of the
order at bar of 3,592 paid violations including 12 paid violations of the regulatory standard at issue. For the 2 years
preceding the order at bar there were 515 paid violations
including 4 paid violations of the standard at issue. This
is not a good record .
I also gave credit in assessing a $750 penalty for the
operators demonstrated good faith in attempting to achieve
rapid compliance after notification of the violation. The
order in this case indicates on its face that both the left
and right return air courses were subsequent! ; examined by a
representative of the mine operator and the r sults were
recorded in the approved book.

Distribution:
Patrick M. Zohn, Esq., Office of the Solicitor, u.s . Department of Labor, 881 Federal Office Building, 1240 East Ninth
Street, Cleveland, OH 44199 (Certified Mail)
Robert C. Kota, Esq. , The Youghiogheny & Ohio Coal Company,
P.O. Box 1000, St. Clairsville, OH 43950 (Certified Mail)
rbg

21 06

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

December 19, 1985

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

. CIVIL PENALTY PROCEEDING
: Docket No. SE 85-48
.: A.C. No. 01-01247-03637
. No. 4 Mine
.

JIM WALTER RESOURCES, INC.,
Respondent

.

DECISION
Appearances:

George D. Palmer, Esq., Office of the
Solicitor, u.s. Department of Labor,
Birmingham, Alabama, for the Petitioner;
Harold D. Rice and Robert Stanley Morrow,
Esqs., Jim Walter Resources, Inc., Birmingham,
Alabama, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal 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.~. § 820(a), charging the
respondent with an alleged violation of mandatory safety standard 30 C.F.R. § 75.316, and 30 C.F.Ro 75.1712-3(a). The
respondent filed a timely answer and a hearing was convened
in Birmingham, Alabama. The parties waived the filing of
written posthearing proposed findings and conclusions, but
were afforded an opportunity to make oral arguments on the
record during the course of the hearing. Their respective
arguments have been considered by me in the course of this
decision.
Issue
The issue presented in this case is whether the respondent violated the cited mandatory safety standards in question, and if so, the appropriate civil penalties that should

2187

be assessed based upon the criteria found in section llO(i)
of the Act.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 96-164, 30 u.s.c. § 801 et seq.
2.

Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i).

3.

Commission Rules, 20 C.F . R. § 2700.1 et seq.

Stipulations
The parties stipulated that the respondent and the subject mine are subject to the jurisdiction of the Act, that
the respondent is a medium-size operator, and that the imposition of civil penalties will not affect the respondent's ability .to continue in business. They also stipulated that the
respondent's history of prior violations is average and that
the violations were abated in good faith.
Discussion
Section 104{a) "S&S" Citation No. 2482846, issued by
MSHA Inspector Terry Gaither on December 11, 1984, cites a
violation of mandatory safety standard 30 C.F.R. § 75.316,
and the condition or practice cited is described as follows:
The approved ventilation methane and dust
control plan was not being complied with in
the overcast over the intake air entry (1)
crosscut inby the No. 11 section switch in
that the overcast wall separating the belt
entry and tracks (intake) had a hole approximately 12 feet by 4 feet.
Section 104(a) "S&S" Citation No. 2482924, issued by MSHA
Inspector Thurman E. Worth on December 4, 1984, cites a violation of mandatory safety standard 30 C.P.R. § 75.1712-(J)(a),
and the condition or practice is described as follows:
The bathing facilities and change rooms
were not being maintained in a sanitary condition in that the drains for the showers were

2188

backing up and not carrying the bathing water
out of the showers. The floor drains in the
changing rooms were backing up with the bathing water out into the changing room floors.
Petitioner's Testimony and Evidence
Kenneth w. Ely, MSBA Health Inspector Specialist, confirmed that he is involved in the approval of mine ventilation plans, and that once an operator submits a plan for
approval, he studies it and makes recommendations to the
district manager. Be confirmed that mandatory safety standard section 75.326 prohibits the use of belt air to ventilate an active working place. He also confirmed that
exhibits G-1 are documents in connection with a petition for
modification of section 75 . 326 for the respondent's No. 4
Mine. He confirmed that an Augus.t 27, 1979, decision by the
Secretary's Administrator for Coal Mine Health and Safety
granting the modification was subject to certain conditions
as stated at pages 7 and 8 of the decision. The particular
conditions are those found in paragraph 6, page 7, which
requires that permanent stoppings separating the belt haulage
and intake escapeway entries shall be continuous, and the
stipulation found on page 8 with respect to the construction
of the stoppings (Tr. 11-14).
Mr. Ely stated that the construction of the stopping in
question is a substantial project, and he likened it to the
building of a virtually airtight brick or block wall for the
physical separation between the intake escapeway and the beltline (Tr. 14> . He defined the term "continuous" in the context of the stopping to mean "from the bottom of the intake
air shafts or the intake where your beltlines actually begin,
continuous to your section, and this is defined as wherever
your loading point is, in the working section" (Tr. 13).
Mr. Ely identified exhibit G-3, as a March 3, 1983, supplement to the No . 4 Mine ventilation plan, whereby the
respondent requested permission to "point feed," at necessary
locations , the belt entry from the "smoke free 11 intake system.
That request was approved by MSBA's district manager by letter
dated March 25 , 1983 . Mr . Ely explained the basis for the
approval of the supplement to the ventilation plan (Tr. 15-16) .
He confirmed that this approved proposal by the respondent was
lawful and permissible under the 1979 modification petition
approval (Tr. 16). However, he qualified his answer by stating as follows (Tr. 16-17>:

2189

A. Going back now, I really think we exceeded
the bounds that were set up in the 1979 decision. Because in the dec~sion of '79 it s~id
that the construction of that stopping line
would be, you know, with permanent-type stopping material and built in a workmanlike
manner and would be continuous.
And by permitting an open hole in order to
gain access for the air to get in there, we
actually changed the wording for the "continuous" and changed the method of construction
for the stopping.
Mr. Ely identified exhibit G-2, dated May 14, 1985, as a
further modification approved after the issuance of the citation in this case for the original modification granted on
August 27, 1979. He explained that when the ventilation problems developed in 1983, "we got into point feeds with Jim
Walters at all their mines, and we discovered then as we were
getting more and more into point feeds that the original petition did not make reference to point feed or did not make
reference to a way to admit this air from your intake into
your beltline" (Tr. 17). At that point in time, contact was
made with the r espondent's ventilation department, and they
were informed that an additional modification to the original
petition had to be filed "in order to gain some language that
would give some leeway in order for the different things that
had come about," particularly with respect to new technological advances in the methods for construction of stoppings.
I t was MSHA's view that the respondent should avail itself of
the ventilation plan approval process to allow it to adopt
t hese new construction advances , instead of resorting to petitions for modification each 't ime somethingnew was developed
(Tr. 18 > •
Mr. Ely quoted paragraph 2 of page 2 of the May 14,
1985 , approval (exhibit G-2 ), particularly t he words "other
ventilation controls" and stated "that's where point feed
carne into being" (Tr. 18) . He pointed out, however, that in
its original "point feed" letter of March 3, 1983, the respondent assured MSHA that the control device used f or point feeding would be constructed according to the method approved for
a standard regulator with sufficient material readily available to completely close the openings, if necessary, and that
all "po~nt feed" locations will be posted on a map at the
minesite and will be shown on the current ventilation map to
be submitted in the next regularly scheduled 6-month update
of the ventilation System and Methane and Dust Control Plan.

The plan update would then include a drawing depicting the
method of construction for the "point feed" device (Tr.
19-20).
Mr. Ely identified exhibits G-7 as the respondent's projected 1-year ventilation map dated December 15, 1984, which
was received in his office on January 13, 1984. He confirmed
that the location identified by Mr. Gaither on this map is
not designated as a point feed location. He also confirmed
that the map contains no regulator construction locations,
and the only thing depicted is a track entry CTr. 28).
Mr. Ely explained the method which should be used for
development of point feed locations in the mine pursuant to
the existing ventilation plan. He stated that point feeds
are methods of controlling the air flow from an intake into a
belt, and that they are to be constructed according -to "regulator specifications." Such locations are constructed with
intent, and the installation of a point feed is a planned
installation "and not something that you would just go down
and quickly knock a hole in for a problem that might develop
on a moment's notice." The point feed should be constructed
according to a submitted plan, with enough material available
to close the regulator in the event a problem were to develop
or found. The term "as necessary•• as used in his review of
the 1983 ventilation plan amendment, as well as the 1984
plan, conveys a meaning that such point feeds are to be
placed at planned locations for a specific purpose to regulate the air flow. Since ventilation changes are involved,
and since there are guidelines for installing ventilation
controls, the term "as necessary" should not be interpreted
to permit haphazard construction of point feeders, or to permit their installation at every crosscut or at every two
crosscuts (Tr. 29).
Mr. Ely pointed out that in his review of the mine maps,
there are only eight point feed locations designated as such
on the current map submi-tted for approval, and that on the
1983 map only one location is ·designated as a point feed. In
his view, such point feeds are constructed with intent and
purpose, and are not something that is done frivolously or at
a moment's notice CTr . 29-30).
Mr. Ely described a "point feed" as follows (Tr. 32):
Q.

Would you explain to us what a point feed

is?

2191

A. Okay, my concept of a point feed is a
point between the intake and the belt where
you build a ventilation control similar to or
akin to the construction listed in the ventilation plan as a regulator, and it is used
the purpose of it serves to admit intake air
into the beltline, and into the belt air
course, the same thing.
Mr. Ely identified exhibit G-4, as a July 14, 1984, MSHA
approval of the respondent's ventilation plan which had been
submitted by the respondent on November 16, 1983. He pointed
out that item 12 on page 3 of the approved plan requires that
any point feed location be posted on the mine map at the mine
site and is also shown on the current ventilation map of the
ventilation plan . He also pointed out that in the original
point feed approval submitted by the respondent on March 3, ·
1983, exhibit G-3, all point feed locations were required to
be posted on a map at the minesite and they were required to
be shown on the current ventilation map to be submitted in
the next regularly scheduled 6-month update of the ventilation plan (Tr. 20-22).
Mr. Ely testified that the effect of the change in the
language as shown on the current ventilation plan map is that
the respondent must submit any point feed location with its
approved map as well as with the 6-month review of its ventilation plan. The respondent must also submit a projection
map which projects for a year in advance any projected ventilation devices for the mine areas to be developed. These
requirements would require any point feed locations to be put
on the maps submitted to MSHA prior to their opening (Tr.
22)

0

Mr. Ely alluded to three mine. maps which are applicable
to this case, and he confirmed that he has discussed them
with Inspector Gaither, and that Mr. Gaither has pointed out
to him what he will testify to with respect to the location
of the point feed in issue in this case (Tr. 22-23).
Mr . Ely identified the current mine map as exhibit G-5,
and he confirmed that it is dated January 27, 1985, and that
it was received in his office on April 11, 1985. He marked
the map to show the location of the alleged point feed in
question in this case as pointed out to him by Mr. Gaither
<Tr. 25-26).
Mr . Ely identified exhibit G-6 as the respondent's mine
map dated December 12, 1983, and received in his office on

2192

February 6, 1984. He confirmed that this map is the only
official map preceding the January 27, . 1985, map. He also
confirmed that it was submitted as part of the respondent's
ventilation plan approval, which MSHA considered as an accurate depiction of the mine conditions. Neither map has any
markings or designations to suggest that any of the locations
pointed out by Mr. Gaither are point feed locations. The
only markings at these locations are overcast depictions (Tr.
27). Although point feeder locations are shown on the map,
the nearest one from the location pointed out to him as the
alleged point feed in this case is 1,200 to 1,600 feet away
(Tr. 28).
Mr. Ely confirmed that the standard construction method
for a regulator is shown on the diagram following page 3 of
the approved ventilation plan, exhibit G-4). Both "wooden
plank .. and "sliding door" methods of construction are shown
(Tr. 34).
On cross-examination, Mr~ Ely confirmed that at the time
of the issuance of the citation in December, 1984, the respondent had MSHA approval to point feed under the conditions of
the respondent's exhibit G-3 letter of March 3, 1983, and the
subsequent MSHA approval of that method. He also confirmed
that the ventilation plan in effect at the time the citation
was issued was the one approved by MSHA on July 14, 1985,
exhibit G-4 (Tr. 35).
Mr. Ely stated that in the event a point feed was deemed
necessary and constructed after submission of the mine map to
MSHA, it would not appear on the map. In the event the point
feed were then closed because it was no longer needed, it
would not appear on the next map submitted to MSHA (Tr. 37).
Any changes made with regard to point feeders should be
posted on a current basis on the map kept at the mine and any
projected point feeds are required to be shown on the maps
submitted to MSHA (Tr. 38). The ventilation plan provides
that anticipated major changes in mine ventilation be submitted to MSHA for approval before the changes are adopted,
and that any deficiencies in ventilation detected during an
inspection could result in the revocation of the plan (Tr.
41). Mr. Ely stated that he did not know the basis for the
citation which was issued in this case, and he was not
involved in the decision to issue the citation (Tr. 50).
MSHA Inspector Terry Gaither testified as to his background and experience, and he confirmed that he issued the
citation after observing that the wall of the overcast
between the belt entry and the intake entry had a hole in it

2193

measuring approximately 12 feet by 4 feet, with a piece of
line brattice over it. He asked for an explanation from
company safety inspector Eddie Nicholson, and someone in the
inspection party stated that the hole was taken out of the
overcast wall in order to take a belt header out of the belt
entry (Tr. 52-53}.
Mr. Gaither stated that after he informed Mr . Nicholson
that he was in violation, Mr. Nicholson replied "We'll call
this a point feed." Mr. Gaither then informed Mr. Nicholson
that he could not randomly remove a stopping and call it a
point feeder when in reality the wall was taken out to facilitate the removal of a piece of equipment (Tr. 53).
Mr. Gaither described the edges of the stopping as
"rough" and he stated that the cinder or slag blocks had been
knocked out and scattered around. Mr. Gaither observed no
other materials in the area, and he confirmed that 14-foot
long boards would have been required to cover up the hole
which was knocked out of the wall (Tr. 54-55}.
Mr. Gaither stated that he discussed the matter further
with Mr. Nicholson, and Mr. Nicholson was under the impression that the purpose of the hole was to facilitate the
removal of the belt header and that the hole was to be sealed
after this equipment was removed. Mr. Gaither confirmed that
the citation was orally issued underground and that he
reduced it to writing on the surface and fixed the abatement
time as the next day after discussing it with Mr. Nicholson
(Tr. 55).
Mr . Gaither confirmed that he was familiar with the mine
maps, exhibits G-5 through G-7, and that the location of the
cited hole was not shown as a point feed on the ·working map
kept at the mine office (Tr. 56) • .
Mr . Gaither stated that he discussed the violation
further with Mr. Nicholson and assistant mine manager Eddie
Ball during a close-out conference held later in the week.
Mr. Ball stated that the cited location was a point feed, and
he was under the impression that the brattice could be
removed when necessary to remove equipment and that the location could be designated as a point feed. Mr. Gaither could
not recall telling Mr. Ball that the location was not shown
as a point feed on the mine map, and he could not recall
Mr. Ball mentioning that it was (Tr. 57-58}.
Mr. Gaither stated that he had never seen a point feed
located at an overcast, and in his opinion the location was

2.1 94

not an intended or bona fide point feed. He believed that
the hole was used to remove the belt head equipment and that
it was to be sealed up after the removal of the equipment
(Tr. 59). Mr. Gaither confirmed that he reviewed the mine
map kept in the mine office on the day he issued the citation
and the,cited location was not designated as a point feed
(Tr. 60).
On cross-examination, Mr. Gaither stated that he did not
issue the citation because the asserted point feed location
was not on the mine map. He conceded that he considered the
fact that the stopping wall was not constructed as a planned
point feed, but insisted that the citation was issued because
the belt entry and intake entry were not separated at that
point. There was a hazard presented by this condition, and
the regulator was initially installed to separate the two
entries (Tr. 61-62).
Mr. Gaither confirmed that while he personally disagreed
with point feeding because in· the event of a fire on the belt
line the smoke will get into the intake and into the sections, he conceded that the approved mine ventilation plan
did not prohibit point feeds . He then stated that "the basis
for the citation was them not complying with the ventilation
plan on the installation of point feeds 11 and because "a violation existed 11 (Tr. 62) .
Mr. Gaither confirmed that while the ventilation plan
did not prohibit the moving of a belt header through a point
feed, Part B, page 1 of the plan specifically covered the
movement of equipment in or out of a belt entry (Tr. 63).
I n response to f urther ques ti ons u Mr. Gaither stated
that the normal size of a point f eed opening is 4 to 6 feet
wide by the height of the entry . .He had never seen an opening the size of the hole in question which measured 4 feet
high by 12 feet wide (Tr . 63-64 )o
Mr. Gaither stated that the permanent stopping in question is defined at page 1 of the ventilation plan, exhibit
G-4 , and it was the wall of the overcast. The purpose of the
device is to maintain air separation , and it is required to
be maintained intact. The exi stence of the 12 x 4 foot hole
led him to conclude that the stopping was not constructed or
maintained to maintain permanent separation of the air, and
that this condition violated the ventilation plan CTr. 66) ~
Mr . Gaither confirmed that at the time the citation was
issued, he was aware of the fact that the respondent had

2195

filed a petition for modification which approved the use of
point feeds as part of the mine ventilation plan (Tr. 68).
He also confirmed that a properly constructed and maintained
overcast separation is one which is completely constructed as
a cement block wall similar to the sketch shown in the
approved ventilation plan (Tr. 71).
Mr. Gaither stated that abatement was achieved by replacing the blocks in the hole and completely cementing it to
make a permanent separation between the belt and the intake.
He described a point feed as "a standard-sized hole framed in
with boards," and stated that boards are taken off or added
to regulate the amount of air passing through the opening
(Tr. 72). A totally cemented wall is not, by definition, a
point feed (Tr. 72).
Mr. Gaither confirmed that point feeds per ~ are not
violations, but that "if it wasn't on the mine map and hadn't
been approved, depending on the circumstances, it could be a
violation" (Tr. 74). Once a point feed is approved by MSHA,
it must be properly maintained (Tr. 75).
Mr. Gaither confirmed that he was in the mine a day or
so prior to his inspection, and that his notes reflect that
there was a hole in the stopping in question, but that he did
not issue a citation (Tr 76). He also confirmed that he is
aware of no regulatory definitions of "point feeds," and he
stated that "its an intake regulator * * * no matter what you
call it" (Tr. 77).
Respondent's Testimony and Evidence
Deputy Mine Manager Eddie G. Ball testified that at the
time the citation was issued the existing mine map reflected
the existence of a point feed at the location cited by
Inspector Gaither, and that it had been so designated on the
map for "only a day or two" (Tr. 82). He stated that the
point feed had not been projected, planned, or shown on the
map previously submitted to MSHA because they cannot be
planned. He explained his answer further as follows (Tr.
82-83} :
And is there any particular reason why
that point feed would not have been projected
or planned or shown on the map that had been
submitted to MSHA several months before that?
Q.

A. Yes, sir. On point feeds you can't plan
them, say, two or three or six months ahead.

219"6

You might think you can, but you don't know
what geology is going to do to you or what
kind of gas bleeders you're going to run into.
You really don't know what your ventilation is
going to do to you, because you can have good
ventilation today, but as your sections keep
advancing out and you keep advancing brattice
lines, all of a sudden you lose pressure.
So then you have to make some kind of moves to
either parallel more air out to it or parallel
more air away from it. And, of course, with a
belt line, some·t imes you have to parallel more
air to it, par~icularly if there is something
back on your belt line somewhere creating a
restriction behind you.
Okay, now, this particular point feed was
shown on the mine map previous to being
constructed?

Q.

A.

Yes, sir.

Q. What about after the citation and the
abatement? Was it still shown on the map?

A.

Yes, sir, it was.

Q.

On the mine map there at the mi'ne?

A.

Yes, sir, it was.

Q. Would it have been shown on any future
subsequent maps that were submitted to MSHA
af~er it was cldsed off?

A. No, sir, there's no reason to; we closed
it back off. But, even so, we still wouldn't
have. Because immediately upon pulling that
belt drive out of there we would have built a
stop and a permQnent stopping in by it so that
we could tear the entire overcast out.
Q. So that, really, in this particular situation it would have been impossible for it, or
impossible for it, to be shown on a prior map
or subsequent map in that six-month projection
that is sent to MSHA, is that correct?

2197

A. It would be highly improbable that you
would, because you would only be there for the
length of time that you need it. It's kind of
like regulators you build in return; they're
only there as long as you need them.
Mr. Ball stated that he visited the location in question
immediately upon being informed that the citation had been
issued, and he confirmed that the point feed was constructed
under his direction. He also confirmed that he was familiar
with the ventilation plan specifications for constructing
point feeds, and stated that the point feed in question was
constructed in accordance with the plan (Tr. 84).
Mr. Ball denied that a brattice curtain was simply over
the hole, and he stated that edges of the hole in the wall
were "rough knocked-out." He stated that the wall was
"knocked straight down, as near straight as the masons could
get it." Two seven-by-nines were on each side of the hole,
and it was completely boarded up and a piece of curtain was
over the top of ·the hole. He stated that the stopping was
boarded up because "we intended to pull the belt drive out of
there and immediately build a stopping behind it." However,
"our belt foreman got tied up in other emergency work that
had to be done, so we just boarded it up and left the project
until he came back to it in a week or so" (Tr. 86).
Mr. Ball stated that he was aware of the fact that
Mr. Gaither had previously been in the mine because
Mr. Nicholson pointed out to him (Ball) that a hole had been
knocked out of the stopping and he did not know whether materials were there. In response to Mr. Nicholson ' s inquiry as
to whether he intended to make the hole a point feed, Mr. Ball
informed him that he did, and Mr. Ball stated that he informed
the general mine foreman that he wanted the stopping built as
a point feed that night exactly in compliance "to the letter
of the law" (Tr. 86). Mr. Ball stated that he went to the
cited location within an hour or two after Mr. Gaither issued
the citation, and that the point feed was boarded up CTr. 87).
He described the stopping as 50-1/2 inches high and 10 feet
wide on the opening (Tr. 87).
Mr. Ball stated that approximately 6 months or a year
prior to the issuance of the citation, a stopping was completely taken out in order to remove a belt drive. Another
MSHA inspector (Zimmerman) who was inspecting the mine advised
him that he would issue a citation because of the opening
between the belt and track. Mr. Zimmerman advised him that a

Gl98

ventilation control was required and suggested that a point
feed similar to one used in the respondent's No. 3 Mine be
considered. Mr. Ball stated that this suggestion prompted him
to install point feeds in the No. 4 Mine in order to move
equipment in and out and to use them for ventilation control
(Tr. 87>.
Mr . Ball stated that prior to the issuance of the citation in this case, MSHA has never indicated that point feeds
could not be used for ventilation and for moving out a piece
of equipment. He stated that the use of point feeds for both
purposes are accepted · methods since the air may be controlled
"in the event something happens." He confirmed that point
feeds have been constructed and closed the same day because
of certain ventilation problems, and he stated that they are
constructed "as needed" (Tr. 88-89).
Mr. Ball stated that the cited stopping was closed off
and completely blocked because Inspector Gaither fixed the
abatement time as the next morning and did not agree with the
point feed at that location. Mr. Ball stated that Mr. Gaither
took the position that the point feed could not be constructed
and used to remove equipment and that it served no ventilation
purpose (Tr. 90). Since Mr. Gaither fixed the abatement as
the following morning, Mr. Ball believed "the simplest way out
of it is to build it right back now" (Tr. 90). Mr. Ball
stated that Mr. Gaither never mentioned that the point feeder
was not shown on the map or that the hole was not constructed
as a point feed. He insisted that the entire context of his
conversation with Mr. Gaither was "that is not what a point
feed is for and you cannot use it for that" (Tr. 90).
Mr. Ball stated that in a citation conference with MSHA
Inspector Jerry Early in Birmingham, Mr. Early informed him
that a point feed cannot be used for moving equipment, and
Mr. Early said nothing about improper construction or the
fa~t that the point feed was not shown on the map (Tr. 91).
On cross-examination, Mr . Ball stated that the decision
to move the belt header was made 2 weeks prior to the inspection, and the opening in the wall was started the day before
the citation was issued. Instructions were given to build
the point feed in the side of the overcast in order to move
the belt drive. Once this was done, the stopping would be
put back in place and the overcast would be removed because
it was no longer needed (Tr. 93).
Mr. Ball stated that even though the hole was boarded
up, since . it was like a regulator, it was still constructed

2199

as a point feed, even though it was inactive at the time. He
confirmed that while the whole purpose of the point feed was
to remove the belt drive, the air had to be controlled while
they were in the process of removing the drive, and the control device built for this was the point feed (Tr. 98). He
further explained as follows at (Tr. 98-100):
JUDGE: Well, that's a little different. I
get the impression that that was the only way
that you could physically remove that
belt-header was through this permanent stopping, so you knocked it down and converted it
into a point feed to facilitate the removing
·of the belt-head? Is that correct?
THE WITNESS: Yes, sir . This belt -- this
section had mined out. All of the belt structure the ropes, the struc·t ure and everything
had been carried out through mandoors. But
you can't get the belt drive out; it's too big.
We don't even want the overcast there anymore.
But economically and what you say is best
economically for us, and to still control the
air between the belt and the track, then build
a point feed. If something happened you could
quickly board it up, and you've got this control that they want.
JUDGE : But you didn't actually build the
point feed. You converted a permanent stopping into a point feed didn ' t you?
THE WITNESS: Yes. We kick out the sides of
the walls and build a point feed.
JUDGE: And his question was, you did it with
the specific purpose of moving the
belt-header , correct?
THE WITNESS:

Yes 6 but --

JUDGE: Hear me out, now. Your initial
thought was: "How are we going to get the
belt-header out?"
THE WITNESS:

Yes.

2200

JUDGE: So you converted a permanent stopping
into a point feed?
THE WITNESS:

Yes.

JUDGE: And your testimony is the reason you
did that was to take the belt-header out?
THE WITNESS:

Yes sir.

JUDGE: But you had to do something to control
the air?
THE WITNESS:
feed.

Yes, sir.

So we built the point

JUDGE: Well, which came first, the chicken or
the egg?
THE WITNESS: Well, you can't get the drive
out ' until you build the point feed , so the
sequence of events is -- this is an overcast;
it's not just a normal stopping.
We had to go down there and build two cribs on
each side. Then we put three steel rails over
the top there to support the roof of this
overcast.
JUDGE:

All right?

THE WITNESS: And then at that point we just
knocked these walls out through the block to
the side, set the two seven by nines in there,
take the boards, and just board it up like you
do an overcast.
JUDGE :

All right.

THE WITNESS: The first time Mr. Gaither was
there they hadn't boarded it all up. They
were in the process of building it .
JUDGE: Well, the first time he was there did
that get his attention?
THE WITNESS: That got his attention.
Mr. Nicholson is the one that told me.

2201

•Eddie,

you've got this hole in the brattice down here,
it's not finished, and he was questioning it."
That's when I told Mr. Oliver, our general
mine foreman:
"You see that that is constructed proper as the law requires."
JUDGE: Do you know whether anybody specifically told Mr. Gaither when he initially saw
that opening what your intent was?
THE WITNESS: Yes. Mr. Nicholson informed us
that he told him what we were doing.
JUDGE:

But did you tell Mr. Gaither?

THE WITNESS: No, sir1 he did not ask me .
Until after this citation I had no contact
with him.
Mr. Ball stated that when he viewed the "hole" in ques tion shortly after the citation was issued, it was a well
constructed regulator which was in compliance with the ventilation plan. He confirmed that it was constructed in accordance with item No. 12 of the plan, and in accordance with
the plan sketches for a wood-board type regulator CTr. 109) .
Inspector Gaither was called in rebuttal, and he testified that the condition of the hole when he observed it at
the time he issued the citation was not as described by
Mr . Ball. Mr. Gaither surmized that someone started to work
on the hole by putting up headers and boards before Mr. Ball
arrived on the scene (Tr. 114) . Mr . Gaither stated that the
belt header equipment could have been removed by constructing
a door and pulling it through the door, or the stopping could
have been removed and an air lock curtain installed during an
idle shift so that the resulting ventilation changes could
not affect the men who normally work the section. Once the
equipment was removed , the stopping could be replaced (Tr.
115).
Mr. Gaither stated that the permanent overcast has never
been removed, and that the respondent is free to remove it at
any time. He recommended that any equipment be removed during an idle shift when no miners are inby, and that this
could be done by putting up check curtains , taking down the
wall, and then putting it back up after the equipment is
removed (Tr. 117).

2202

Mr . Gaither stated that when he observed the hole it was
covered with a brattice cloth and he observed no boards
installed across it. The hole did not look like any of the
other point feeders in the mine, and he saw nothing to indicate to him such a point feeder was being constructed (Tr.
118). When asked about his previous observation of the hole,
Mr. Gaither responded as follows (Tr. 118-119):
Q. Had you seen point feeders in this mine
before?

A.

Yes, sir.

Q.

Did this look like a point feeder?

A.

No, sir, it didn't.

Q. Did it look like a point feeder in being?
One that was being constructed?

A. I didn't see anything there to indicate
that it was being constructed.
Well, now, when you saw it the day before,
the opening, what conjured up in your mind
then? Why didn't you issue a citation?

Q.

A. I don't really know, unless I went back
and checked the plans. I didn't have the ventilation plan with me or the petition for modification. I probably went back and checked
the plans.
Well , now , on Monday , when you were there
before, you saw this opening, . was your curiosity aroused as to what that opening was doing?

Q.

A.

Yes.

And did you have a conversation with
Nicholson?

Q.
Ao

Yes , sir .

And what was that?
believe from him?

Q.

What were you led to

A. I was led to believe that it was in there
to take equipment out.

2203

Q.

To take equipment ou~?

A.

They had a header there to take out.

Did you have any conversation with anyone
else that day?

Q.

A. No, I don't recall~ I don't think so. I
don't think we talked about it. I probably
told them then that it needed to be blocked
up.
Q.

But you issued no citation?

A.

No, sir.

And then the next day when you went back
there you decided to issue the citation?

Q.

A. I don't know if it was the next day, but
after that I did. If they were going to take
the equipment out, they should have had it out
and the hole blocked back up.
Mr. Gaither stated that a point feeder may not be constructed simply to facilitate the removal of equipment. He
confirmed that he issued the citation because the stopping
was not constructed in accordance with the ventilation plan,
and the hole in the stopping did not maintain air separation
between the belt and the intake. A point feed with a door
which is used solely for ventilation control would not be a
violation. As long as the ventilation is not interrupted, it
would not be a violation to take equipment through the stopping door (Tr. 121).
Mr. Gaither stated that he did not determine whether the
ventilation was interrupted with the brattice over the hole
in the stopping, and he took no air readings (Tr. 128). The
ventilation plan required that the separation of air be maintained with a permanent stopping, and since the stopping had
a hole in it which was covered by a brattice it was no longer
a permanent stopping. Although air separation may have been
maintained with the brattice cloth, it was not maintained by
a permanent stopping as required by the plan (Tr. 129).
Mr·. Ely was recalled and he stated that the purpose of
the introduction of the point feed in 1983 was to allow air
to be admitted from the normal air intake into the belt entry

2204

in order to supplement the air in the belt entry and to preclude the accumulation of noxious and flammable gases. The
integrity of the stopping line must be maintained in order to
maintain the air flow in the designated direction and to maintain the intake escapeway "smoke free" in the event of an
emergency. A physical separation must be maintained, and if
a hole is knocked out of the stopping, a pressure change
would result, and in the event of a fire it could spread from
one entry to another (Tr. 130-132).
Mr. Ely stated that under section 75.322, any ventilation changes must be done on idle work shifts. Once a hole
is knocked out of a stopping, a determination must be made as
to the effect of the hole on the ventilation currents in the
mine, and one "cannot go down there and knock a hole whenever
you feel like it" {Tr. 133). As long as the ventilation is
not changed to the point where it materially affects the air
supply on the mine splits, the use of point feeds is not prohibited <Tr. 133-134). Mr. Ely explained further at <Tr.
134-138):
Earlier this morning when Mr. Palmer asked
you if you had any idea or any notion as to
why the inspector issued this citation you
said you didn't. Now after hearing the inspector's testimony do you have any idea why he
issued it?
Q.

A. Yes. From what I have heard this morning,
I would have believed that the point feed was
put there for the purpose of gaining access to
this piece of equipment, not for the purpose
of a ventilation control.
Q. Let's assume that was done.
that violate?

A.

What does

What does

Q. What's wrong with the operator constructing his point feed for the purpose of facilitating moving of the equipment?

A. Well, let's take it down the road a little
bit.

2205

Q. Let me just back up just a second. The
operator in this case did not initially construct the point feed as such. He had a permanent stopping in there. And I used the term
"converted." Isn't that

A.

I

have no problem.

Q.

That's what he did, right?

A. Converted it. You know, he had a purpose
in mind. He had a job to do and he constructed this device to help him facilitate
his job.
Q. But his first purpose when he put the permanent stopping in there was to have it as a
permanent stopping, correct?

A.

That is correct.

We have to assume that if he had always
wanted a point feed there he would have put a
point feed there in the first place.

Q.

A.

That's right.

It seems much simpler than going to all
the trouble of putting up a wall then knocking
it out. In any event, he converted a permanent stopping into a point feed.

Q.

Ao

Righto

And he did that for the specific purpose
of getting out the belt-header and removing
it .

Q.

A.

That 8 s correct.

Q.

Now, what's illegal about that?

A. You are destroying the integrity of a stopping line between an intake escapeway and a
belt entry. And that is in violation of
another regulation in the law.
Q. well, why weren't these other regulations
cited?

2206

A. Because this stopping line serves the purpose for these other regulations, too. They
have a dual purpose. You must maintain the
integrity of that intake escapeway.
Q. And the inspector's contention here that
by making this opening it failed to maintain
the integrity of the stopping line, that's
what the violation is all about?

A.

That's right.

Q. Is that your notion as to why he issued
that?

A. That's right. They failed to maintain the
integrity of the stopping line. And if an
operator were to carry it to the point that
to give you an example that was given this
morning -- a one-foot hole.
If I wanted a one-foot hole to facilitate the
putting of rock dust in an area and so I
knocked a one-foot hole, and my hose doesn't
reach and I go on down here and I knock
another hole, and pretty soon you've got a
mine full of holes, and you have destroyed the
integrity of that stopping line.
And you think that this is the same principle that is involved here?

Qo

A. Well, it comes back to the intent again.
Was the need there primarily ~o facilitate air
flow, or was the need there primarily to facilitate the transferrence of this piece of
equipment?
Now, what if the mine operator in this
case decided to put up a point feed to not
only regulate the air but also to facilitate
movement of equipment at some point in time?
He knows he's going to mine so far and he's
got to come back and take all of that equipment out of there, and he decides that's what
he wants to do. Could he do that?
Q.

2207

A. If the primary objective of that point
feed is to facilitate the flow of air, we
would have no problem.
Q. What's the primary purpose of a regulator
under this mine control plan?
A. To regulate the flow of air to the different areas of the mine. If he has a regulator
in his return, and a fire boss examiner on his
weekly examination were traveling down that
return and he wanted to step through it, I
would have no objection to him stepping
through that regulator.
So in this case, even though there is no
evidence or no showing that ventilation was in
any way interrupted, or there was no impact on
the ventilation by the punching of this hole
through there and constructing the point feed,
your theory would be that the integrity of
that wall has still been changed?

Q.

A. That's right. And if we were to -- if we
had such a system that you could go down and
destroy at will whatever holes you wanted to
put holes in there, then you're destroying a
separation of your intake escapeway from that
belt entry. And if there was an emergency, or
for whatever reason, you have less control the
more you have.
Mr . Ely reiterated that the intent of constructing point
feeders is to regulate air flow, and not to facilitate the
movement of equipment (Tr. 139). He confirmed that point
feeders were first introduced in the respondent's mines in
1982, and stated that they are peculiar to the area where
those mines are l ocated. He also confirmed that the respondent has received MSHA approval of its petitions for modification to use belt air in the faces, and that it is in the
process of installing sealed monitor systems and other safeguards to achieve this and to remain in compliance with section 75.326 (Tr. 139-142);
MSHA Inspector Milton Zimmerman was called as the Court's
witness to testify to the circumstances surrounding his issuance of four section 75.316 violations in February and August,
1984 (exhibits ALJ-1 through ALJ-4). Mr. Zimmerman confirmed
that he issued the citations, and he commented that anytime he

2208

finds a stopping knocked out or a hole in the stopping, the
respondent a~tempts to justify the conditions by commenting
"Oh, it's a point feed." Mr. Zimmerman stated that in these
instances, he knew the cited locations were not designated
point feeds and in his view "it's just a hole in a stopping,
and it shouldn't exist" (Tr. 157-158).
Mr. Zimmerman stated that he was not with Inspector
Gaither during his inspection in this case and had no prior
knowledge that he had issued a violation. However, had he
observed the same condition as testified to by Mr. Gaither he
would have issued a section 104(d)(2) order "Because it was
definitely a violation of the ventilation plan, and management cannot go around knocking holes in overcasts and stoppings and putting a piece of line curtain over it" (Tr.
159-160).
Mr. Zimmerman stated that if the stopping cited by
Inspector Gaither was in fact a point feeder the stopping
boards would have been in place and stopping materials would
have been readily accessible at the stopping location. Had
the boards been in place with a line curtain, and if the stopping was in fact a point feeder, he would not have issued a
citation. However, if the point feeder was not so designated
on the mine map kept on the surface he would have issued a
citation for failure to record the point feeder on the map as
required by the ventilation plan (Tr. 160). He testified
further as follows at (Tr. 160-161):
But the fact that -- the question of
whether or not it's a point feeder is a question of fact, what it looks like and what it
is, not \'ihether it's on a map.

Q.

A. If it look like what Mr. Ball say it was,
it was a point feed. If it look like what the
inspector saw when he was there, it was definitely a hole in an overcast.
Has this problem between the point feeds
and permanent stoppings been a problem or a
controversy at this mine between MSHA and the
mine operator?

Q.

No controversy, just the fact that you see
a hole in a stopping, and I guess Eddie
Nicholson's name is on most of those, and you
say, "Eddie, you got a hole in the stopping,"
and he say, "Oh, it's a point feed," you know.

A.

~209

Q.

What's he mean by that?

A. Just somebody knocked a hole in a stopping
and they shouldn't have.
Q. But that never got him off the hook, did
it?

A.

No, sir.
Findings and Conclusions

Fact of Violation - Citation No. 2482846
The respondent in this case is charged with a violation
of mandatory safety standard 30 C.F.R. § 75.316, because of its
failure to follow its approved ventilation methane and dustcontrol plan. The inspector who issued the citation found a
hole in an overcast permanent stopping wall, and because of the
hole, he concluded that complete air separation between the
belt and intake was not maintained as required by the plan, and
that the stopping was not constructed and maintained as
required by the plan.
Respondent's counsel conceded that the applicable ventilation plan requires that all permanent stoppings be maintained as shown in the diagram for continuous mortar and brick
construction, and that a hole in such stopping would constitute a violation of the plan (Tr. 149).
Respondent's position is that the cited overcast stopping location was in fact a properly designated point feeder
under the approved ventilation plan. Respondent's counsel
agreed that if I make a finding that the location was not a
point feeder and simply a permanent stopping that was out of
compliance with the plan, the citation would be affirmed. He
also agreed that in the event I ruled that the location was a
properly designated point feeder location, I could also find
that it was not properly constructed and maintained in accordance with the plan, and still affirm the citation. Counsel
also agreed that Inspector Gaither issued the citation
because the integrity of the stopping was not maintained (Tr.
149-152).
Respondent's counsel asserted that the pivotal problem
with . this case is the fact that MSHA's prior approval for
point feeding in the mine conflicts with the views of Mr. Ely,

2210

Inspector Gaither, and possibly other individuals in the district office with respect to the concept of point feeding.
Counsel takes the position that since point feeding has been
approved for its mine, and since it has the discretion under
that approval to determine where a point feed should be
located and how it is to be used, it should not be penalized
simply because it relied on that plan approval. Counsel also
asserted that questions concerning the respondent's intended
use of point feeds, and whether or not they appear on the mine
map are not germane to the citation issued in this case .
Counsel maintains that the issue here is whether or not it was
proper to move a piece of equipment through a stopping wall
·which the respondent had decided was a point feed under its
approved plan (Tr . 167-168).
Respondent's counsel confirmed that the respondent did
not contest the four ventilation plan violations previously
issued by Inspector Zimmerman, and he conceded that the violations were issued for failure to maintain complete air separation (Tr. 162). I take note of the fact that two of the
violations were issued by Mr. Zimmerman after he found missing blocks in one stopping and ano't her stopping which had
been knocked out <exhibits ALJ-1, ALJ-2). Another violation,
exhibit ALJ-3, is a section 104(d)(2) order which
Mr. Zimmerman issued after finding that a missing stopping
resulted in the failure to maintain air separation between
the belt line and intake escapeway. Inspector Zimmerman
noted that such air separation must be maintained except
where point feeders are listed on the mine map. The order
was terminated after a permanent stopping was constructed to
separate the belt from the intake .
Petitioner's counsel asserted that the size of the hole
in the stopping cited by Inspector Gaither supports a conclusion that the stopping was never intended to be used as a
point feeder in the first place (Tr. 68). Coupled with the
fact that the inspector observed no stopping materials
readily available at the location , and the fact that mine map
did not show the location as a pre-planned point feeder,
counsel suggested that the respondent has made a feeble
attempt to establish that the overcast stopping was a bona
fide point feeder which was used to facilitate the movement
of belt equipment (Tr. 68-70) .
Although the respondent has the discretion under its
approved plan to establish point feeders at necessary locations, the conditions under which this may be done are
spelled out at page 3, paragraph 12 of the plan. Those conditions require that a point feeder location be so designated

2211

on the current mine map and also be shown on the current ventilation map. A second condition is that the point feeder
control device be constructed according to the approved
method for constructing a standard ventilation regulator,
with sufficient materials readily available to completely
close the opening if necessary.
Assistant Mine Manager Ball contended that the cited
permanent overcast stopping was in fact an "inactive" point
feeder which was constructed as such for the specific purpose
of facilitating the removal of the belt drive. He also contended that this was done to control the air during the week
that the belt drive was planned to be removed <Tr. 97). However, he then admitted that the permanent stopping was actually "converted" into a point feeder by knocking down the
sides of the walls and installing boards. I find Mr. Ball's
position to be rather contradictory . It seems strange to me
that the respondent would go to the expense of constructing a
solid masonry block wall stopping, only to knock it down to
remove a piece of equipment that it knew had to be removed in
the first place.
Mr. Ball testified that the purported point feeder was
so designated on the mine map at the time the citation issued.
However, the mine map was not produced at the hearing, and
Inspector Gaither testified that the location of the permanent stopping which he cited was not shown as a point feed on
the working mine map maintained at the mine office.
Inspector Gaither testified that even if the hole had
been 1-foot by 1-foot, he would have issued the citation
because air separation was not being maintained as required
by the plan (Tr . 68). Mr. Gaither stated that in order to
maintain air separation, the cited overcast permanent stopping was required to be constructed and maintained as a
solidly cement block and mortared wall as depicted in the
sketch which is a part of the plan. He confirmed that the
blocks were replaced and the wall was recemented in order to
achieve abatement. Since it was not reconstructed in the
manner in which point feeders are normally constructed in the
mine, the respondent's contention that it was a point feeder
is contradictory (Tr. 72). He testified that point feeders
are constructed with a normal sized hole 4 to 6 feet wide
which is framed by boards which may be removed and replaced
to regulate the amount of air passing through the opening.
Since the cited stopping was not constructed in that manner,
he believed that the respondent never intended to use it as a
point feeder. Respondent's counsel conceded that a stopping

2212

was quickly constructed once the citation issued, but contended that simply because this done cannot serve to establish that the respondent did not intend it as point feeder
(Tr. 79). Although counsel alluded to an "obvious valid
reason" for constructing the stopping to achieve abatement,
since none were forthcoming, I can only conclude that abatement was achieved to insure compliance and to preclude the
issuance of a closure order.
Mr. Ball asserted that Mr. Gaither had previously
observed the hole in the stopping before he issued the citation and that he discussed the matter with respondent's
safety inspector Eddie Nicholson . Mr. Ball stated that prior
to the issuance of the citation, Mr. Nicholson informed him
about "the hole out stopping" and asked him whether he (Ball>
intended "to make that a point feed." At that point in time,
Mr. Ball advised his general foreman that he wanted the stopping built as a point feed that night <Tr. 86). Mr. Ball
stated that he knew it was built that way prior to the issuance of the citation because he went to the location an hour
or two after the citation was issued and found it boarded up
CTr. 87). Mr. Ball admitted that he did not discuss the
matter with Inspector Gaither until after the citation was
issued.
Inspector Gaither testified that when he observed the
stopping hole during his inspection, there were no boards
installed across it, a piece of curtain was hanging over the
hole, and he saw no evidence of any construction taking place.
He confirmed that Mr. Nicholson was with him and that when he
asked Mr . Nicholson for an explanation, someone in the inspection party offered an explanation that the hole was knocked
in the overcast wall in order to remove the belt header. At
that point in time, Mr. Gaither stated that he informed
Mr. Nicholson that this could not be done, and that
Mr. Nicholson simply replied "We'll call this a point feeder."
During a subsequent conversation, Mr. Gaither stated
that Mr . Nicholson advised him that it was his impression
that the hole was knocked out to facilitate the removal of
the belt header and that the hole was to be sealed up after
the equipment was taken out. Since Mr. Nicholson was not
called to testify in this case, and since I find Mr. Gaither
to be a credible witness, I accept his version of the events.
Further, Mr. Gaither's version, contrary to that of Mr. Ball,
supports a conclusion that the permanent overcast stopping
was initially constructed for that purpose, and that it was
not constructed as a point feeder. Further, I reject any
notion that the respondent was in the process of constructing

2213

a point feeder at the time of the inspection. I conclude
that it simply knocked a hole in the permanent stopping to
facilitate the removal of the belt header, and that Mr. Ball's
testimony is simply a less than credible attempt to justify
what was done.
After careful consideration of all of the credible testimony and evidence adduced in this case, I cannot conclude
that the ' respondent has rebutted the petitioner's contention
that the cited overcast stopping was not in fact a bona fide
point feeder. I conclude and find that the overcast stopping
was not a point feeder. I accept Inspector Gaither's testimony with respect to the condition of the stopping as credible evidence of the fact that it was not intact and was not
constructed and maintained as required by the plan, and that
the large hole in the stopping precluded the required maintenance of air separation between the belt entry and intake
entry. The fact that the purported point feeder was not so
designated on the map, and the fact ·that stopping materials
were not present or readily a~ailable . at the stopping location lend additional support to the inspector's · contention
that the overcast stopping was not in fact a designated point
feeder.
I conclude and find that the cited overcast stopping in
question was in fact a permanent stopping within the meaning
of the approved plan. The applicable plan provisions found
at page one, including the construction sketches referred to
by the inspector which are part of the plan, required that
such stoppings be constructed of stacked or mortared conventional or solid masonry blocks. Since the overcast stopping
in question was not so constructed or maintained as required
by the plan when the inspector found it, I conclude and find
that a violation of the plan has been established. Since it
is clear that a violation of the approved plan constitutes a
violation of section 75.316, the citation IS AFFIRMED.
Citation No. 2482924, issued on December 4, 1984, charges
a violation of mandatory standard 30 C.F.R . § 75.1712-3(a), in
that the bathing facility change rooms were not maintained in
a sanitary condition because of backed-up shower floor drains.
The respondent admitted that the violation occurred as stated
by the inspector who issued the citation, and the parties
settled the matter at the hearing. The parties subsequently
filed a joint motion for appr~val of the proposed settlement
pursuant to 29 C.F.R. § 2700.30. The citation was modified to
delete the inspector's "significant and substantial" finding,

2214

and the respondent agreed to pay the full amount of the proposed civil penalty of $178. After consideration of the arguments presented in support of the proposed settlement, the
joint motion IS GRANTED, and the settlement IS APPROVED.
History of Prior Violations
The parties have stipulated that the respondent has an
"average history of prior violations." Howe~er, since the
petitioner did not submit a computer print- out of the mine
history , I have no way of knowing what an "average" history
is or whether or not the respondent's compliance record
warrants any additional increases or decreases in the civil
penal ty which I have assessed for the violation in question.
However, I have considered the four pr ior citations issued by
Inspector Zimmerman at the mine as part of the respondent's
compliance record and this is reflected in the penalty
assessed for the violation in question .
Size of Business and Effect of Civil Penalty on the
Respondent's Ability to Continue in Business
The parties have stipulated that the respondent is a
medium-sized operator and that the imposition of a civil penalty will not adversel y affect its ability to continue in
business . I adopt these stipulations as my findings and conclusions on these issues.
Negligence
I conclude that the violation resulted from the re~pon
dent's failure to exercise reasonable care to insure compliance with the requirements of its ventilation plan. The
evidence adduced in this case established that mine management had knowledge of the existence of the hole in the overcast stopping, and I conclude that its failure to insure
against such a condition constitutes ordinary negligence .
Gravity
There is no evidence in this case that the respondent
was experiencing any ventilation problems in the mine at the
time the citation was issued, and the parties agreed that
this was the case (Tr. 140). Although Inspector Gaither confirmed that he took no air readings and did not determine
whethe~ the air ventilation was interrupted during the time
the hole in the stopping existed with a brattice cloth over
it, (Tr. 127), the fact is that the integrity of the stopping
was not maintained and complete air separation as required by

2~15

the plan was not maintained. Further, the overcast stopping
was an intergral and important part of the underground ventilation system and methane and dust-control plan. Under the
circumstances , I conclude and find that the violation was
serious.
Good Faith Compliance
The parties stipulated that the violation was timely
abated in good faith, and I ~dept this as my finding on this
issue.
Significant and Substantial Violation
The petitioner advanced no arguments as to why it believes that the violation is significant and substantial,
and the inspector's testimony does not address this question .
As pointed out earlier, the inspector made no air readings
and did not determine whether or not the ventilation was
interrupted. As a matter of fact, he conceded that even with
the brattice cloth over the hole in the stopping, any leakage
would be minimal and "so small you couldn't measure it." He
also stated that while air separation was not maintained
because the permanent stopping was destroyed, he conceded the
possibility that separation was maintained even with the
brattice cloth over the hole (Tr . 129). Under the circumstances, I cannot conclude that the petitioner has presented
any evidence to support a conclusion that the violation presented a reasonable likelihood of an accident or injury of a
reasonably serious nature. Accordingly, the inspector's
ns&S" finding IS VACATED.
Penalty Assessment
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 a civil penalty assessment
in the amount of $ 20 0 is appropr i ate and reasonable for the
section 104(a) Citati on No. 2482846, issued on December 11,
1984 .
ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $200 for the violation in question. Respondent is
also ORDERED TO PAY a civil penalty in the amount of $178 for
Citation No . 2482924 , which has been settled by the parties.
The civil penalty assessment payments are to be made to MSHA

~) ,,..,
~) 16
,_

within thirty (30) days of the date of this decision and
order. Upon receipt of payment, this case is dismissed •

~r1-1L 4: ~

/ ~e A. Kout~
Administrative Law Judge

.

Distribution:
George D. Palmer, Esq., Office of the Solicitor, u.s.
Department of Labor, 1929 South Ninth Avenue, Birmingham, AL
35256 (Certified Mail)
Harold D. Rice, Esq., Jim Walter Resources, Inc., Box C-79,
Birmingham, AL 35283 (Certified Mail)
Robert Stanley Morrow, Esq., Jim Walter Resources, Inc.,
Box C-79, Birmingham, AL 35283 (Certified Mail)
H. Gerald Reynolds, Esq., Jim Walter Corporation, Box 22601,
Tampa, FL 33622 (Certified Mail)

/fb

~217

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

SOUTHERN OHIO COAL COMPANY,
Contestant

DEC 191985

CONTEST PROCEEDING
Docket No. WEVA 84 - 210 - R
Citation No. 2260516; 4/11/84

v.

Docket No . WEVA 84-211-R
Citation No. 2419672; 4/23/84

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

Docket No . WEVA 84- 212 - R
Order No. 2419748; 4/23/84
Docket No . WEVA 84 - 216 - R
Citation No. 2419745; 4/23/84
Docket No . WEVA 84- 217 - R
Citation No . 2419488; 4/25/84
Docket No . WEVA 84-219 - R
Citation No . 2419750; 5/1/84
Docket No. WEVA 84-281-R
Order No . 2419796; 5/24/84
Martinka Mine No . 1

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

CIVIL PENALTY PROCEEDING
Docket No . WEVA 84- 364
A. C. No. 46 - 03805-03590

v.

Docket No. WEVA 84- 394
A. C. No . 46-03805-03594

SOUTHERN OHIO COAL COMPANY ,
Respondent

Docket No . t.VEVA 8 5- 5 9
A. C . No . 46 - 03805 - 03600
Docket No. WEVA 85-80
A. C. No. 46-03805-03612
Docket No. WEVA 85- 90
A. C. No. 46 - 03805-03620
Docket No . WEVA 85- 110
A. C. No . 46-03805-03623
Docket No . WEVA 85- 116
A. C. No. 46-03805-03626
Martinka Mine No . 1

2218

DECISION APPROVING SETTLEMENT
Before:

Judge Steffey

counsel for the Secretary of Labor filed on Jul y 18,
1985 , and December 17, 1985, motions for approval of settlement in the above- entitled cases . 1/ All of the cases had
been scheduled for hearing during the same week , but the
cases in Docket Nos . WEVA 84 - 210- R, WEVA 84-281- R, WEVA 8590, and WEVA 85-110 were scheduled for hearing by separate
orders because different attorneys are representing the
Secretary of Labor in those four cases from the attorney who
is representing the Secretary in the remaining 10 cases .
Shortly after the four cases were set for hearing, counsel
for the parties settled them and promptly filed a motion for
approval of settlement in those four cases . Counsel in the
remaining 10 cases requested an extension of the hearing
date so that the parties could further consider the possibility of settling those cases also .
I did not act upon the
first motion for approval of settlement because I wanted to
consider all of the cases in a single decision and I antici pated that a settlement would be reached sooner than it was
in the remaining 10 cases.
I shall first consider the motion for approval of
settlement filed with respect to t he four cases in Docket
Nos. WEVA 84- 210- R, et al. Under the motion ·for approval of
settlement , SOCCO would]pay reduced penalties totaling $605
instead of the penalties totaling $1 , 105 proposed by MSHA. 2/
Section llO(i) of the Federal Mine Safety and Health Act of1977 lists six criteria which are required to be used in
assessing civil penalties.
The proposed assessment sheets in the official files
indicate that the Martinka Mine No. 1 here involved produces
about 2,283,000 tons of coal annually and that SOCCO produces about 13,559,000 tons of coal per year at all of its
mines.
Those production amounts support a conclusion that
SOCCO is a large operator and that penalties in an upper
range of magnitude would be appropriate under the criterion
of the size of SOCCO's business.
1/

The Secretary's counsel also filed on December 16, 1985,

a motion to vacate the citations which are the subject of

the notices of contest in Docket Nos . WEVA 84- 216-R and
WEVA 84-217- R. The motion additionally asks that the re l ated
civil penalty cases in Docket Nos . WEVA 84- 364 and WEVA
85 - 116 be dismissed.
2/ The second motion for approval of settlement filed on
December 17, 1985, agrees to reduce total penalties to $789
from the total penalties of $1,076 proposed by MSHA.

?"f)~
l<o~ .1.

,_

9

The motion for approval of settlement s t ates that payment of civil penalties will not adversely affect SOCCO ' s
ability to continue in busines~. The r efore , the penalties
need not be reduced under the criterion of whether payment
of penalties would cause SOCCO to discontinue in business.
As of the date when the violations here involved were
cited , socco had been assessed penalties for 382 violations
during 1,299 inspection days . Application of those figures
to MSHA's assessment formula described in 30 C.F.R. §
100 . 3(c) ~equires assignment of zero penalty points under
the criterion ·of SOCCO's history of previous violations .
Consequent ly, no portion of the penalty has to be assessed
under the criterion of history of previous violations .
In order to evaluate the remaining three criteria of
SOCCO ' s good-faith effort to achieve rapid compliance ,
negligence, and gravity , a brief discussion of the specific
alleged violations is appropriate. .The only violation for
which a penalty of more than $20 is .sought in Docket No.
WEVA 85 - 110 is for a violation of section 77.1605(p) because stop-blocks or derail devices had not been installed
to protect persons from runaway cars where haulage equipment would enter the mine .
MSHA considered that the violation was serious, that it was associated with a low degree of negligence, that SOCCO had demonstrated a goodfaith effort to achieve rapid compliance , and proposed a ·
penalty of $105 which SOCCO has agreed to pay in full .
I
find that the penalty proposed by MSHA under section 100.3
of its assessment formula is adequate in the circumstances
and that SOCCO's agreement to pay the proposed penalty
should be approved .
In addition to the alleged violation of section
77 . 1605(p) discussed above, the petition for assessment of
civil penalty filed in Docket No . WEVA 85- 110 seeks assess ment of a civil penalty of $20 for a violation of section
75 . 1203 alleged in Citation No . 2420016 which was affirmed
by my summary decision issued on April 15 , 1985 , in Docket
No . WEVA 84- 296- R, 7 FMSHRC 543 . After issuance of that
decision, counsel for SQCCO filed on June 10, 1985, a motion
to withdraw its not i ce of contest in Docket No. WEVA 85- 110
and thereby discontinue its opposition to paying the penalty
of $20 proposed by MSHA for the violation of section 75.1203
alleged in Citation No . 2420016. The motion states that
.. payment of this amount is forthcoming. " Counsel for the
Secretary did not file an answer either opposing or favoring
the granting of SOCCO ' s motion to withdraw its notice contesting Citation No. 2420016 and there is nothing in the
official file to explain whether the proposed $20 penalty is
still "forthcoming" or has been paid .

2220

In Mettiki Coal Corp . , 3 FMSHRC 2277 (1981) , the Commission approved a somewhat similar disposition of a civil
penalty case, except that the Secretary's counsel in that
case filed a motion to wi thdraw···the petition · for assessment of civ.il penalty after Mettiki Coal had withdrawn its
notice of contest of the penalties proposed by MSHA. In
the Mettiki case, Mettiki actually paid the full amount of
$10 , 000 be1ng sought by the petition for assessment of civil
penalty and the only reason the Secretary filed the motion
to withdraw the petition for assessment of civil penalty was
to defeat the judge ' s refusal to accept a settlement proposal previously submitted by the parties. The result of
the filings in . the Mettiki case was that the parties retroactively restored the posture of the case to the initial
procedure provided for the proposing of penalties under
section 105(a) of the Act. Under section lOS(a), if a
party declines to protest a pr0posed penalty, the " penalty
shall be deemed a .f inal order of the Commission and not
subject to review by any court or agency ."
I n order to make this case conform with the procedure
approved by the Commission in the Mettiki case, I shall
hereinafter dismiss the petition for assessment of civil
penalty filed in Docket No . WEVA 85-110 insofar as it seeks
assessment of a penalty of $20 for the violation of section
75.1203 alleged in Citation No. 2420016 and grant the motion
filed by SOCCO to withdraw its notice of contest insofar
as it sought review of Citation No . 2420016 . The grant
of the motion will be conditioned upon the payment by SOCCO
of the penalty of $20 . If SOCCO has already paid the penalty, it may, of course, ignore the condition associated
with the grant of its motion . Inasmuch as the violation
involved pertained to the manner in which SOCCO went about
making its mine map ultimately available to a person who
resided on the surface of the land where SOCCO's mine is
situated, it appears that a penalty of $20 is r easonable
under the many extenuating circumstances which were associated with i ssuance of the citation.
The petition for assessment of civil penalty filed in
Docket No. WEVA 85- 90 proposes a penalty of $1,000 for an
alleged violation of section 75 . 1722(a) because the guard
for the chain drive at a belthead had been removed 2 days
prior to the time the inspector examined it and no work
was being done to replace the guard . Although a sign had
been erected at one end of the travelway along the drive ,
no sign had been erected at the other end of the travelway
to warn a person of the lack of a guard on the drive . The
inspector cited the violation in an order issued under the
unwarrantable failure provisions of section 104(d) (2) of
the Act and MSHA waived the provisions of its regular

2221

assessment formula in section 100 . 3 of the regulations and
assessed the penalty on narrative findings written pursuant
to section 100.5.
MSHA's narrative findings considered the violation to
be very serious because the mine floor around the belt drive
was wet and slippery and those conditions increased the
likelihood of a person's falling into the exposed moving
parts. The violation was considered to have resulted from
a high degree of negligence because i t was believed that
socco had been aware of. the violation for about 2 days and
had done nothing toward having the guard replaced.
The motion for approval of settlement is accompanied
by a letter from SOCCO's counsel offering to settle the
issues pertaining to Order No. 2419796 if MSHA would amend
the order to allege the violation in a citation issued
under section 104(a) of the Act so as to remove the inspector's finding that the violation was the result of an
unwarrantable failure on SOCCO's part. SOCCO's counsel
stated in his letter that if a hearing were to be held,
the mine foreman would testify that he had erected danger
signs at both ends of the travelway and the firebosses
who examined the area at the end of the day and afternoon
shifts would testify that they did not report any violation or hazardous conditions existing in the vicin1ty of
the belthead .
Finally, one of SOCCO's safety assistants
.would testify that he had accompanied an MSHA inspector
who checked the area of the belthead on the day before
the instant order was issued and cited no violation or
hazardous condition in the vicinity of the belthead.
The motion for approval of settlement states that it
would be difficult to prove at a hearing that the alleged
violation of section 75.1722(a) was the result of an unwarrantable failure in ligh~ of the evidence which would be
presented by SOCCO. Consequently, MSH~ agreed ·to modify
the order to a citation issued under section 104(a) so as
to delete the inspector's finding that the violation was
the result of an unwarrantable failure.

I find that the parties have given adequate reasons
to warrant a reduction in the proposed penalty from $1;000
to $500 because it is obvious that a large part o~ the
proposed penalty was based on the inspector's finding
that unw.a rrantable failure was involved . The violation
was still serious and therefore it is appropriate to approve the settlement agreement under which SOCCO will still
be paying a substantial penalty of $500 for the violation
of section 75.1722(a).

2222

The second motion for approval of settlement filed on
December 17, 1985, discusses the petitions for assessment of
civil penalty filed in Docket Nos. WEVA 84-394, WEVA 85-59,
and WEVA 85-80. Only a single alleged violation is being
contested in each of those cases. The parties' settlement
of the civil penalty issues also permits me to dismiss the
notices of contest which were filed in the related contest
proceeding in Docket Nos. WEVA 84-219-R, WEVA 84-212-R,
and WEVA 84-211-R.
I have ~lready discussed .the three criteria of SOCCO's
ability to pay penalties, history of previous violations,
and the size of its business. The previous findings with
respect to those three criteria remain unchanged and will
be applicable for considering the second motion for approval
of settlement. The remaining three criteria of negligence,
gravity, and good-faith abatement will be considered in
evaluating the parties' settlement agreement pertaining
to the three civil penalty cases mentioned in the preceding
paragraph.
The petition for assessment of civil penalty filed in
Docket No. WEVA 84-394 seeks to have a penalty assessed
for an alleged violation of section 77.1700 because the
driver of a truck was operating alone in a remote area
without a communication system to call for help should he
become exposed to a hazardous condition. MSHA used the ·
assessment formula in section 100.3 and proposed a penalty
of $119 after finding that the violation was relatively
serious, was associated with a moderate degree of negligence, and was abated within the time given by the inspector in his citation. The motion for approval of settlement
states that SOCCO has agreed to pay the full amount of $119
proposed by MSHA.
I find that MSHA proposed a reasonable
penalty pursuant to its assessment formula and that the
parties' settlement agreement provides a satisfactory
mea~s of disposing of the case in Docket No. WEVA 84-394.
In Docket No. WEVA 85-59, a penalty is sought to be
assessed for an alleged violation of section 77.1104 because an accumulation of loose coal, coal dust, and float
coal dust existed under the Nos. 17- and 54-inch belt conveyors. MSHA waived the use of its regular assessment
formula described in section 100.3 and proposed a penalty
of $800 on the basis of narrative findings written pursuant
to section 100.5. While the narrative findings do not
. separate. the amount of the penalty which was assigned under
the criterion of negligence from the amount attributed
under the criterion of gravity, it is likely that a large
portion of the penalty was assigned under the criterion of
negligence because · the violation was cited in an order

2223

issued under the unwarrantable-failure provisions of section
104(d) (2) of the Act. The inspector based the finding of
unwarrantable failure on his belief that SOCCO had failed to
provide adequate personnel to clean up the accumulations and
had not tried to stop the excessive amount of water which
appeared to be a contributing factor to the accumulations.
The motion for approval of settlement shows that MSHA
has changed the order to the category of a citation issued
under section 104(a) of the Act and that SOCCO has agreed
to pay a reduced penalty of $550. The reduced penalty is
based on a further investigation of the circumstances surrounding the conditions which were observed by the inspector. It appears that SOCCO had assigned two employees to
work on cleaning up the accumulations shortly after they
occurred and that they were in the process of cleaning up
the spillage at the time the order was issued. Also water
was corning out of the mine onto the inclined conveyor belt
and then washing coal back down the incline but SOCCO was
not intentionally putting water on the conveyor belt as
the inspector had first concluded.
I find that the parties have given adequate reasons
for reducing the degree of negligence previously considered
to be associated with the violation. Additionally, the
description of the accumulations shows that they were extremely wet and would not have been likely ·to have caused
a fire or an explosion. socco showed a good-faith effort
to achieve rapid compliance by cleaning up the accumulations
within 2 hours after the inspector cited the violation.
In Docket No. WEVA 85-80, a penalty is sought for an
alleged violation of section 77.205(a) because a sloped
roof under the scale house needed to be protected by installing a railing or barrier to prevent a person from
falling off ·t he roof when work is required to be done by a
person standing on the roof. MSHA proposed a penalty of
$157 under section 100.3 of its assessment formula after
finding _that the violation was relatively serious, was
associated with a moderate degree of negligence, and was
abated within the time provided for by the inspector in
his citation.
The motion for approval of settlement states that the
parties have agreed to reduce the penalty to $120 because
it was established that employees are seldom req~ired to
go onto the roof to work. The citation was originally
written to allege a violation of section 77.204 and was
thereafter modified to allege a violation of section 77.205(a).
Section 77.204 applies to protecting persons from falling
through openings in surface installations by erecting railings or barriers, whereas section 77.205(a) requires an

2224

operator to provide a safe means of access to a ll working
places .
Since the violation pertains to an undescribed
type of work which is required to be performed on top of a
roof which exists under a scale house , it may well be that
no standard precisely covers the type of hazard from which
the inspector was trying to protect employees. After the
violation was " cited SOCGO did install a railing to protect
any person from falling who might have to work on the roof .
It is obvious that the inspector accomplished the purpose
for which the citation was written.
In such circumstances ,
SOCCO is paying a reasonable penalty in agreeing to pay a
reduced penalty of $120 instead of the penalty of $157
proposed by MSHA. Therefore, I f i nd that the parties •
settlement agreement should be approved .
The motion for approval of settlement states that
SOCCO will file a motion to withdraw its notices of contest
in the event the judge approves the parties • settlement
agreement .
I see no need to delay disposition of the contest cases in Docket Nos . WEVA 84-211-R , WEVA 84- 212-R, and
WEVA 84-219- R until after this decision has been issued and
SOCCO has filed motions to withdraw three of the seven
notices of contest which are involved in this proceeding.
This decision disposes of all issues raised in the seven
contest cases and the seven related civil penalty cases
either because SOCCO has withdrawn its notice of contest of
the penalty proposed by MSHA under section· 105(a) of the
Act , or because SOCCO has agreed to pay the full penal ty
proposed by MSHA, or because SOCCO, for justifiable reasons,
has agreed to pay reduced penaltiep , or because MSHA has
moved to have two citations vacated. In each case, there is
no longer any reason to wait for the further filing of one
or more p l eadings by SOCCO before disposing of the contest
cases which are related to the civil penalty cases . Cf.
Old Ben Coal Co., 7 FMSHRC 205 (1 985) .
Motion To Vacate Two Citations
The petitions for assessment of civil penalty filed in
Docket Nqs. WEVA 84- 364 and WEVA 85- 116 seek assessment of
penalties for alleged violations of sections 75 . 317 ($119)
and 77.107-1 ($20), respectively. The alleged violations
of sections 75 . 317 and 77.107 - l were the subject of notices
of contest filed in Docket Nos . WEVA 84- 216-R and WEVA 84217- R. Granting the motions to vacate the underlying citations will make it possible to dismiss the four interrelated
cases without assessing any civil penalties.
The citation involved in Docket Nos . WEVA 84- 364 and
WEVA 84 - 216-R is No . 2419745 which alleged a violation of
section 75 . 317 because only one of three methane detecting

22 25

devices was operative. That section provides that methane
detecting devices shall be in a permissible condition before each shift is worked. The motion to vacate the citation notes that the alleged violation pertained to SOCCO's
preparation plant where only one methane test has to be
made each shift pursuant to section 77.201-1. Since one
operative methane detector is adequate for checking the
few areas which have to be tested for methane accumulations,
the parties concluded that section 75 . 317 had not been
violated so long as one of three detectors was in working
order. The parties also doubt that the cited underground
standard is applicable to a surface facility like the preparation plant here involved.
I find that the motion to vacate has given valid reasons
for requesting that Citation No. 2419745 be vacated. ~he
motion to vacate is hereinafter granted , Citation No. 2419745
is vacated, and the pertinent contest and civil penalty cases
in Docket Nos. WEVA 84-216-R and WEVA 84-36~ are dismissed.
The citation involved in Docket Nos. WEVA 85-116 and
WEVA 84-217-R is No. 2419488 which alleged a violation of
section 77.107-1 because SOCCO had not given proper emphasis
to the work of surface electricians when it administered
its electrical retraining program. Section 77.107-1 provides for each operator to submit for approval by MSHA a
program setting forth "what, when, how, and where he will
train and retrain persons whose work assignments require
that they be certified or qualified." The primary thrust
of the alleged violation was that SOCCO~s annual retraining
program was structured to give primary emphasis upon the
retraining of underground electricians without providing
enough specific retraining for persons who work only as
surface mine electricians. The motion to vacate the citation
explains that SOCCO had in effect at the time the citation
was issued an annual retraining plan which had been approved
by MSHA. The violation was cited in response to a complaint
by an employee filed under section 103(g} of the Act.
Investigation of the complaint resulted in a conclusion by
MSHA that SOCCO's program for surface electrical personnel
could be improved and SOCCO subsequently agreed to modify
its instruction program.
In such circumstances, the parties
say that they do not believe SOCCO should be cited for violating an annual retraining plan which MSHA had approved.
Therefore, counsel for the Secretary requests that the
citation be vacated and that the related contest and civil
penalty cases be dismissed.
I find that the motion to vacate has given valid reasons
for requesting that Citation No. 2419488 be vacated. The
motion to vacate is hereinafter granted, Citation No. 2419488

2226

is vacated, and the pertinent contest and civil penalty
cases in Docket Nos. WEVA 84-217-R and WEVA 85-116 are
dismissed.
WHEREFORE, it is ordered:
(A)
The motions for approval of settlement filed on
July 18, 1985, and December 17, 1985, are granted and the
settlement agreements are approved.
(B) The motion to vacate Citation No. 2419745 issued
April 23, 1984, alleging a violation of section 75.317 and
Citation No. 2419488 issued April 25, 1984, alleging a violation of section 77.107-1 is granted and those two citations are vacated.
(C) On the basis o~ the vacation of Citation No.
2419745 in paragraph (B) above, the petition for assessment
of civil penalty filed in Docket No. WEVA 84-364 is dismissed and the related notice of contest filed in Docket
No. WEVA 84-216-R is dismissed.
(D) On the basis of the vacation of Citation No.
2419488 in paragraph (B} above, the petition for assessment of civil penalty filed in Docket No. WEVA 85-116 is
dismissed and the related notice of contest filed in
Docket No. WEVA 84-217-R is dismissed.
(E) Pursuant to the settlement agreement filed on
July 18, 1985, socco shall, within 30 days from the date
of this decision, pay civil penalties totaling $605.00
which are allocated to the respective alleged violations
as follows:
Docket No . WEVA 85-110
citation No. 2260516 4/ll/84 § 77.1605(p)

$ 105.00

Total Settlement Penalties in Docket No.
WEVA 84-110 • • ••• .• •...•.•..•...•...••.••••• $ 105.00
Docket No .. \!JEVA 85-90
Order No. 2419796 5/24/84 § 75.1722(a),
modified to a citation •.••.• • •••..••••.•••. $ 500.00
Total Settlement Penalties in Docket No.
WEVA 85-90 .••.•..•..•.•..•. • .••••.•••.••..•

$ 500.00

Total Settlement Penalties Pursuant to
Motion of 7/18/85 • • . • . . • • . • • . . • • • • • • • • • • • • • $ 605.00

2227

·(F) ( 1) The petition for assessment of civil penalty
filed in Docket No. WEVA 85-1 10 is dismissed to the extent
that it sought assessment of a proposed penalty of $20 . 00
for the violation of section 75 . 1203 alleged in Citation No . ·
2420016 dated June 19 , 1984, so that the proposed penalty
may be paid pursuant to section L05(a) of the Act .
(2)
SOCCO ' s motion to withdraw the notice . of contest is granted
subject to SOCCO's paying the proposed penalty of $20 within 30 days· from the date of this decision if SOCCO has not
already paid the proposed penalty.
(G) Pursuant to the settlement agreement filed on
December 17, 1985, SOCCO shall , within 30 days from the
date of this decision, pay civil penalties totaling $789 . 00
which are allocated to the. respective alleged violations as
follows:
Docket No. WEVA 84 - 394
Citation No. 2419750 5/1/84 § 77.1700

$ 1 1 9.00

Total Settlement Penalties in Docket No .
WEVA 8 4 - 3 9 4 . . . . . . . . . • . . • • . . . . . . . • . . . . • . . . . .

$ 119 . 0 0

Docket No. WEVA 85-59
Order No . 2419748 4/23/84 § 77 . 1104,
modified to a citation • . .. • . • .. .•• .. •• • .• . . $ 550 . 00
Total Settlement Penalties in Docket No .
WEVA 85- 59 . .. .' . . .. .. .. . . . .. ..... ..... .. . . . . $ 550 . 00
Docket No. WEVA 85-80
Citation No. 2419672 4/23/84 § 77.205(a)

. • . • . $ 120 . 00

Total Settlement Penalties in Docket No.
WEVA 8 5- 8 0 . . • . . • . • . . . . • . . . . • . • . . . . . • . . • • . • . $ 12 0 . 0 0
Total Settlement Penalties Pursuant to
Motion of 12/17/8 5 . • . . . • . . . . . . . . . . . • . . . . . . . $ 789.00
(H)
The notices of contest filed in Docket Nos . WEVA
84-210-R, WEVA 84-211- R, WEVA 84 - 212-R, WEVA 84-219- R, and
WEVA 84-281-R are dismissed.

~ sq~fif/h'

Administrative Law Judge

222 8

Distribution:
David A. Laing, Esq., Alexander, Ebinger, Fisher, McAlister
& Lawrence, 1 Riverside Plaza, 25th Floor, Columbus, OH
43215-23·88 · (Certified Mail)
Mark v. Swirsky, Esq., Office of the Solicitor, u.S. Department of Labor, Room 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail) ·
Heidi Weintraub, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Edward H. Fitch IV, Esq., Office of the Solicitor, U.S.
Departm~nt of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)

yh

2229

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

December 20, 1985

.
:
.:
.

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

v.

.
..
.

CIVIL PENALTY PROCEEDING
Docket No. CENT 85-108-M
A.C. No. 16-00995-05504
Proppant Plant

0

SOHIO ELECTRO MINERALS CO.,
Respondent

DECISION
Before:

Judge Broderick

on December 9, 1984, the parties filed a joint motion for
. decision on the record, and agreed to waive their rights to a
hearing.
Respondent ~ does not deny that the violation charged in the
citation involved herein occurred. The parties submit that the
only issue before me for resolution is the appropriate penalty
for the violation.

The citation· charged a violation of the mandatory safety
standard contained in 30 C.F.R. § 56.14-1, because the tail
pulley for the main truck loadout conveyor was not guarded. A
walkway next to the tail pulley was used by maintenance
employees , but "is a very low travel area and the conveyor is
only run intermittently with very ~ittle employee exposure." A
CAV inspection in 1982 and four follow up MSHA inspections of
the same equipment did not result in citations, nor was
Respondent notified that the unguarded pulley was a violation.
The citation involved herein was abated the same day it was
issued. The inspector believed that Respondent's negligence in
permitting the violation was low. He concluded that the
occurrence of the event against which the cited standard is
directed was reasonably likely to occur and the injury
resulting from the occurrence could reasonably be expepted to
be fatal.
Respondent is of moderate size, and has a favorable
history of prior violations. The violation was moderately
serious. Even though few employees were exposed, the injury
which could result was expected to be serious. The prior

2230

inspections tend to diminish the factor of negligence. I
conclude that Respondent's negligence was minimal. It abated
the condition promptly and in good faith.
I conclude that based on the criteria in section llO(i) of
the Act, an appropriate penalty for the violation is $100.00
which I will reduce by 10% for prompt, good faith abatement.
ORDER
Based on the above findings of fact and conclusions of
law, IT IS ORDERED that citation 2239899 issued May 9, 1985, IS
AFFIRMED.
IT IS FURTHER ORDERED that Respondent shall within 30 days
of the date of this decision pay the sum of $90.00 as a civil
penalty for the violation found herein.

j

a.,.,.,·f,\.U:

~vvc/L,t"':6te

James A. Broderick
Administratiave Law Judge

Distribution:
James J. Manzanares, Esq., U.S. Department of Labor, Office of
the Solicitor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Paul s. Beyt, Plant Manager, Sohio Carborundum Proppants
Division, 4020 Industrial Drive, N~w Iberia, LA 70560
(Certified Mail>
slk

2231

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

December 20, 1985

.

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 84-217
A. C. No. 15-08906-03508

v.

No. 3 Mine

CIRCLE J. COAL COMPANY, INC.,
Respondent
DECISION
Before: Judge Fauver
This case was set for hearing on December 4, 1985,
pursuant to notice of hearing issued on September 18, 1985,
under section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. §801, et seq. The notice of hearing
required the parties to file prehearing statements not later
than November 26, 1985.
Respondent did not file a prehearing statement.
Because of this failure, Respondent was issued a Show Cause
Order on November 29, 1985, giving Respondent 15 days to
show cause why it should not be held in default and the
proposed penalties be assessed without further proceedings
herein . Respondent has not responded to the Show Cause
Order.
ORDER
WHEREFORE IT IS ORDERED that:
1. The allegations of fact in Citation No.
2167760, June 4, 1984, Citation No. 2291403, June 4, 1984,
and Citation No. 2291404, June 4; 1984, are deemed to ·be
true and are hereby incorporated in FINDINGS OF FACT herein.
2. The allegations of violations in the above
citations are deemed to be true and are hereby incorporated
as CONCLUSIONS OF LAW herein.

3. Respondent is ASSESSED the following civil
penalties for the violations found herein:
CITATION NO.

CIVIL PENALTY

2167760

$20
$46
$20

2291403

2291404

4. Respondent shall pay the above-assessed civil
penalties in the total amount of $86 within 30 days of this
Decision.

4)~:~.
~~Vf/t.William Fauver
Administrative Law Judge
Distribution:
Carole M. Fernandez, Esq., Office of the Solicitor, U.S.
Department of Labor, 280 U. s. Courthouse, 801 Broadway,
Nashville, TN 37203 (Certified Mail)
Mr. Wallace Scalf, President, Circle J. Coal Company, Inc.,
Box 447, Stanville, KY 41659 (Certified Mail>
dcp

2233

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

WEST VIRGINIA REBEL
COAL COMPANY, INC.,
Contestant

:

.

v.

DEC 2 01985

CONTEST PROCEEDINGS
Docket No. KENT 85-18-R
Citation No. 2183908;
9/20/84

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

Docket No. KENT 85-19-R
Order No. 2183909; 9/21/84

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

CIVIL PENALTY PROCEEDING

No. 1 Surface Mine

Docket No. KENT 85-68
A.C. No. 15-06365-03530

v.

No. 1 surface Mine

WEST VIRGINIA REBEL
COAL COMPANY, INC.,
Respondent

.
DECISION

Appearances:

J. Edgar Baily, Esq., and George V. Gardner,
Esq., Gardner, Moss, Brown & Rocovich, Roanoke,
Virginia, for West Virginia Rebel Coal Co.
{Rebel>;
Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Secretary of Labor {Secretary).

Before:

Judge Broderick

STATEMENT OF THE CASE
On October 12, 1984, Rebel filed Notices of Contest,
contesting citation 2183908 issued on September 20, 1984, under
section 104(a) of the Federal Mine Safety and Health Act and
order 2183.9 09, issued on September 21, 1984 under section
104(b) of the Act. Rebel denied that it violated the Act as ·
charged in the citation and order. The Secretary filed its
answer on December 31, 1984.

On January 14, 1985, Rebel filed. a motion for entry of
default and for vacation of the citation and order on the
ground that the Secretary's answer was not timely. The motion
was denied by an order issued February 5, 1985.
The citation contested herein was issued for Contestant's
alleged failure to comply with an order to reinstate miner
Larry Duty issued by me in the case of Secretary/Duty v. West
Virginia Rebel Coal Co., Docket Nos. KENT 83-161-D and KENT
83-232-D. The withdrawal order contested herein was issued on
the ground that no apparent effort had been made to abate the
violation previously cited.
The Secretary filed a proposal seeking the assessment of
a civil penalty for the violation alleged in the contested
citation and order. Since the contest and penalty cases
involve the related citation and order, they are hereby
consolidated for the purpose of this decision . On October 25,
1985, the parties submitted factual stipulations and moved to
have the cases decided on the augmented record, waiving their
rights to an oral hearing . Each party has also filed a
supplemental statement setting forth its position on the issues
involved herein. I accept the stipulations and have considered
the entire record including the documentary exhibits filed by
the parties. I have also carefully considered the contentions
of the parties.
FINDINGS OF FACT
1 . At all times pertinent hereto , Rebel was the operator
of a c oal mine in Martin County, Kentucky, known as the No. 1
Mine. The mine produced over 700,000 tons of coal during the
four quarters preceding the alleged violations •

.

2. Secre tary/Duty v. West Virginia Rebel Coal Co.,
Docket Nos. KENT 83-161-D and KENT 83-232-D, {Duty case)
consolidated Discrimination Proceedings, were . heard by me in
Jul y and September 1984, having been reassigned to me after
Judge Joseph B. Kennedy, to whom they were originally assigned,
r ecused himself.
3. On September 11 , 1984, I issued an order from the
bench in the Duty case, ordering that Rebel forthwith reinstate
Complainant Duty to the position from which he was discharged
on March 3, 1983.This order reaffirmed the written order of
reinstatement issued by Judge Kennedy on May 25, 19~3. Rebel
was represented by counsel at the hearing when the bench order
was issued.

2235

4. On September 14, 1985, Duty reported to work at
Rebel's work site where he was refused reinstatement at the
direction of Rebel's counsel.
5. On September 18, 1984, I issued a written order of
reinstatement in the Duty case, restating and reaffirming the
bench order of September 11, 1984. A correction to the
September 18, 1984 order was issued October 3, 1984.
6. On September 20, 1984, at approximately 7:00 a.m.,
Duty again reported for work at Rebel and was refused
reinstatement by Milton Preston, Safety Director for Rebel.
7. On September 20, 1984, at 7:15 a.m., MSHA Inspector
Creech issued a 104(a) citation because of Rebel's refusal to
reinstate Duty. The citation was served on Milton Preston.
Termination was due on September 21, 1984 at 7:00 a . m.
8. On September 21, 1984, Duty returned to the mine at
approximately 7:00 a.m. and was again refused reinstatment by
Preston.
9. On September 21, 1984, at 7:10 a.m. Inspector Creech
isued a 104(b) withdrawal order because no apparent effort was
made to abate the citation by reinstating Duty.
10. On October 9, 1984, Rebel filed a Petition for
Interlocutory Review with the Commission in the Duty case,
which was denied by Commission Order of October 12, 1984.
11. On October 15, 1984, Rebel filed a Motion for a Stay
of the Order of Reinstatement in the Duty case. I denied the
motion by order issued October 18, 1984.
12. Duty was not reinstated by Rebel prior to October 26,
1984 when he would have been laid off in accordance with the
union contract .
13. On September 20 and 21, 1984 when the citation and
order involved herein were issued, neither Milton Preston nor
counsel for Rebel had seen a copy of my written order of
September 18, 1984.
14. Rebel is a debtor in possession and is operating the
subject mine under the authority of Chapter XI of the
Bankruptcy Act, and by direction of the Bankruptcy Court for
the Eastern District of Kentucky. Rebel was placed. in Chapter
XI for reorganization under the Bankruptcy Code on June 27,
1984 . A Chapter XI operating order was issued by the
Bankruptcy Court to Rebel on September 21, 1984.

2236

15. On June 1, 1984, Rebel entered into a consulting
agreement with Minmag, Inc., whereby Minmag undertook to direct
the affairs, operations and enterprises of Rebel. The
agreement was approved by the Bankruptcy Court on July 9, 1984.
16. From September 20, 1982 to September 19, 1984,
eighty-five violations were charged against Rebel. Rebel paid
the assessments on 32 of these violations.
17. Rebel has debts totalling approximately sixteen
million dollars.
ISSUES
1. Whether Rebel was properly cited for its failure to
comply with the order of temporary reinstatement?
2. If so, whether the order of withdrawal was properly
issued for the failure of Rebel to comply after the issuance of
the citation?
3. If a violation is established, what is the
appropriate penalty?
CONCLUSIONS OF LAW
Rebel is subject to the Federal Mine Safety and Health
Act of 1977 in the operation of the subject mine and I have
jurisdiction over the parties and subject matter of this
proceeding.
On September 11, 1984, I issued an order in open court
that Rebel reinstate Complainant Duty to the position from
which he was discharged on March 3, 1983. This order was
issued because of my finding that Rebel was not in compliance
with the order of temporary reinstatement issued in the same
proceeding by Judge Kennedy on May 25, 1983. My order was
issued pursuant to section 105(c)(2) of the Act. Rebel failed
or refused to comply with the order. The fact, if it is a
fact, that Rebel's safety director was not aware of the order
is irrelevant. Rebel was aware of and bound by the order.
Rebel's action in refusing to comply with the order was a
violation of an order promulgated pursuant to the Act.
Therefore, it was a violation of section 104(a) of the Act, and
the issuance of a citation was mandatory. I conclude that the
citation contested herein, No. 2183908 issued Septe~ber 20,
1984, was properly issued. The citation gave Rebel 24 hours to
abate. I conclude that this was a reasonable abatement time.

2237

Because Rebel failed to comply in the time set for abatement,
the 104(b) order was properly issued.
At the time the citation and order were issued, Rebel was
of moderate size. Given the nature of the violation charged
herein, I conclude that the history of previous violations is
not helpful in determining an appropriate penalty. Therefore
the penalty assessed will not be increased or decreased because
of Rebel's violation history. The violation was serious and
was intentional. Rebel now argues that my order was issued in
error. However, it did not perfect a challenge to it prior to ·
the issuance of the citation and order. It did not demonstrate
good faith in attempting to achieve rapid compliance after
notification of a violation. On the contrary, it flouted an
order of the Commission and refused to comply after the
citation was issued.
Rebel is in bankruptcy. Whether it will be able to
continue in business is problematic. Any penalty I assess
might be said to have an effect on its ability to continue
operating. Nevertheless, a substantial penalty is required for
the serious, continued violation of a Commission order. Based
on the criteria in section llO(i) of the Act, I conclude that
an appropriate penalty for the violation found herein is
$1,000.
ORDER
Based on the above findings of fact and conclusions of
law, IT IS ORDERED:
1. Citation No . 2183908 issued September 20, 1984 is
AFFIRMED.
2. Order No. 2183909 issued September 21, 1984 is
AFFIRMED.
3. West Virginia Rebel Coal Company, Inc. shall within
30 days of the date of this order pay the sum of $1,000 as a
civil penalty for its violation of section 105(c) of the Act.

j

.

/(fttAL-S.

AdJt/?~1t7;;t

James A. Broderick
Administrative Law Judge

2238

Distribution:
J. Edgar Baily, Esq., George V. Gardner, Esq., Gardner, Moss,
Brown & Rocovich, P.O. Box 13606, Roanoke, VA 24035 (Certified

Mail>
Thomas A. Grooms, Esq., u.s. Department of Labor, Office of the
Solicitor, 280 u.s. courthouse, 801 Brodway, Nashville, TN
37203 (Certified Mail)
slk

2239

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

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

DEC 201985

CIVIL PENALTY PROCEEDING
Docket No . LAKE 85-95
A.C. No. 33 - 02308-03620 A

v.

Raccoon No. 3 Mine

DENZIL PROCTOR ,
Respondent
ORDER OF DISMISSAL
Before :

Judge Broderick

On December 9, 1985, Petitioner moved to withdraw its
Petition for a Civil Penalty, and for dismissal of this
proceeding.
Respondent is charged in this proceeding as an agent
of the corporate mine operator, with knowingly authorizing,
ordering, or carrying out the violation charged against
the operator . The Motion states that further review of the
facts developed during discovery proceedings and discussions
between counsel persuaded Petitioner that there are
mitigating circumstances which show that Respondent ' s actions
were more in the nature of an error in judgment than a
knowing violation of the safety standard alleged. Respondent
does not oppose the motion .
Based on the representations in the motion, which I
accept, the motion is GRANTED, and this proceeding is DISMISSED .

· ·1ru4t£5 _A./Jvocl~-:./7~£

~

James A. Broderick
Administrative Law Judge

Distribution:
J. Philip Smith, Esq ., u.s. Department of Labor , Office of the
Solicitor, 4015 Wilson Blvd., Arlington , VA 22203 (Certified Mail)
Dani el A. Brown, Esq ., Alexander , Ebinger , Fisher , McAl is t er and
Lawr ence, 25th Fl . , 1 Riverside Plaza , Columbus, OH 43215 - 2388
(Certified Mail)
s lk

224 0

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

.

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

v.
.

.
..
.
.

DEC 2 01985

CIVIL PENALTY PROCEEDING
Docket No. SE 84-79
A.C. No. 01-00758-03601
No. 3 Mine

JIM WALTER RESOURCES, INC.,
Respondent :
DECISION
Appearances:

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

Before:

Judge Broderick

STATEMENT OF THE CASE
The Secretary seeks a civil penalty for the alleged
violation of 30 C.F.R. § 75.1403-8(d) for which a citation was
issued on April 4, 1984. Termination was required by 8:00
a.m., April 6, 1984. The citation referred back to a notice to
provide safeguards issued July 27, 1976. Respondent contends
that the safeguard notice did not establish a mandatory safety
standard, the violation of which cquld support the assessment
of a civil penalty.
Pursuant to not ice the case was called for hearing l.n
Birmingham, Alabama on October 22, 1985. Luther McAnally and
T. J. Ingram testified on behalf of Petitioner. Respondent did
not call any witnesses.
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
Respondent is the ·owner and operator of an underground
mine in Jefferson County, Alabama, known as the No. 3 Mine.

9?41
.,_ ,111

The operator is of "medium" size, and has an average history of
prior violations.
On July 27, 1976, Federal Mine Inspector T. J. Ingram
issued a Notice to Provide Safeguards based on an inspection
conducted the s·ame day. The notice stated that "the authorized
representative of the Secretary • • • directs you to provide
the following specific safeguards - adequate clearance and
signs at necessary points, clearance side free of material."
The notice went on to provide as follows:
Specific Recommended Safeguards:
several locations along the track haulageways that
were used for travel had clearance less than 24
inches. Refuse, loose rock and supplies obstructed
the available clearance in the provided walkways.
Signs were not provided in places where the
clearance side could be changed. The track haulage
roads should have a continuous clearance on one
side of at least 24 inches from the farthest
projection of normal traffic. Where it is
necessary to change the side on which clearance is
provided, 24 inches of clearance should be provided
on both sides for a distance of not less than 100
feet and warning signs should be posted at such
locations. Track haulage roads • • • should have
clearance on the 'tight' side of at least 12 inches
from the farthest projection of the normal traffic.
• . the clearance space on all track haulage roads
should be kept free of loose rock, supplies and
other loose materials.
On August 20, 1976, the Inspector notified Respondent that the
required safeguards specified were _provided. A violation
notice (now called a citation) was issued on February 23, 1977
charging a violation of the safeguard notice. It was extended
twice and on November 28, 1977 at 10:40 a.m. an order of
withdrawal was issued under section 104(b) of the Act because
the condition had not been abated. The order was terminated on
November 3Q, 1977 at 11:50 p.m. when the condition was abated.
A citation was issued on January 29, 1979 charging a violation
of 30 C.F.R. § 75.1403-S(b) because a continuous clearance on
one side of at least 24 inches was not being maintained along
the track entry. An order of withdrawal was issued on
February 5, 1979 because of failure to abate. The citation and
order were terminated thereafter. Neither the citation nor the
order referred to the notice to Provide Safeguards. ·

Citations were issued on January 22, 1981, September 12,
1983, and September 27, 1983, all charging violations of 30
C.F.R. § 75.1403-8(b) because 'Of failure to follow the notice
to provide Safeguards of July 27, 1976.
The citation involved in this proceeding was issued
April 4, 1984 and charged that:
The track haulage road over which men and material
are transported the required clearance was
obstructed by timbers - crib blocks - pipe - belt
rollers and structures - cement blocks - large
rocks - hydraulic jacks - 3xl0 lumber and coal.
It referred to the safeguard notice issued July 27, 1976.
An order of withdrawal was issued on April 9, 1984 at
1:00 p.m. because the condition cited was not abated and
"little or no effort has been made to remove the loose rock and
coal from the required clearance." The order was terminated on
April 9, 1984 at 10:30 p . m. when the track was cleaned up.
Inspector McAnally testified that when he came into the
mine on April 4, 1984 he saw "junk" scattered all over the
track haulage road. Clearance was obstructed on both sides.
The haulageway is used for hauling materials and supplies and
for hauling personnel in mantrips. It is used on all three
shifts. The Inspector stated that when he returned on April 9,
1984, some of the junk, such as the belt structures and other
loose materials, had been removed, but the rock and coal had
not been removed and the required clearances were not provided .
Because of this testimony, I do not accept the stipulation that
" the alleged violation was abated in good faith . "
Respondent did not offer any _rebuttal testimony.
Therefore, I find that the conditions cited by the Inspector on
April 4, 1984 existed in the haulageway, and that they had not
been abated at the time the withdrawal order was issued o
REGULATORY PROVISIONS
30 C.F.R. § 75.1403 provides as follows:
Other safeguards adequate, in the judgment of an
authorized representative of the Secretary, to
minimize hazards with respect to transportation of
men and materials shall be provided.
30 C.F.R. § 75.1403-1 provides in part as follows:

2243

(a) Sections 75.1403-2 through 75.1403-11 set out
the criteria by which an authorized representative
of the Secretary will be guided in requiring other
safeguards on a mine-by-mine basis under § 75.1403.
Other safeguards may be required.
(b) The authorized representative of the Secretary
shall in writing advise the operator of a specific
safeguard which is required pursuant to § 75.1403
and shall fix a time in which the operator shall
provide and thereafter maintain such safeguard. If
the safeguard is not provided within the time fixed
and if it is not maintained thereafter, a notice
shall be issued to the operator pursuant to section
104 of the Act.
30 C.F.R. § 75.1403-8 provides in part as follows:
(b) Track haulage roads should have a continuous
clearance on one side of at least 24 inches from
the farthest projection of normal traffic. Where
it is necessary to change the side on which
clearance is provided, 24 inches of clearance
should be provided on both sides for a distance of
not less than 100 feet and warning signs should be
posted at such locations.
(c) Track haulage roads developed after March 30,
1970, should have clearance on the 'tight' side of
at least 12 inches from the farthest projection of
normal traffic • • .
(d) The clearance space on 11 track haulage roads
should be kept free of loose rock, supplies and
other materials.
ISSUES
1. Whether Respondent's failure to comply with the terms
of the Notice to Provide Safeguards constitutes a violation of
a mandatory safety standard for which a penalty may be
assessed?
2. If so, what is the appropriate penalty for the
violation?
CONCLUSIONS OF LAW
Respondent is subject to the provisions of the Federal
Mine Safety and Health Act of 1977 (the Act) in the operation

2244

of the subject mine, and I have jurisdiction over the parties
and subject matter of this proceeding.
Section 314(b) of the Act is repeated in the regulation
at 30 c.F.R. § 75.1403. It authorizes a Federal inspector to
require that a mine operator provide specific safeguards to
minimize hazards on a mine-by-mine basis, with respect to the
transportation of men and materials. 30 C.F.R. § 75.1403-1
directs the Secretary to advise the operator in writing of the
specific safeguard that is required. If the operator fails to
maintain the safeguard thereafter, a notice under section 104
of the Act (a citation> shall be issued. Thus, the inspector
is in effect authorized to establish a mandatory safety
standard applicable to the conditions in a specific mine,
without following the notice and comment requirements
applicable to rule making. For this reason, the authority
conferred on the inspector and his exercise of that authority
must be strictly construed. Secretary v. Jim Walter Resources,
Inc., 1 FMSHRC 1317 (1979) (ALJ); Consolidation Coal Company v.
Secretary, 2 FMSHRC 2021 (1980} (ALJ); U.S. Steel Mining Co.,
Inc. v. Secretary, 4 FMSHRC 526 (1982) (ALJ). I agree with
Respondent here that the test is whether it was given notice
that the safeguards set out in the notice in this case were
mandatory standards.
The notice in question is on a Department of Interior
form. It notifies the operator that upon an inspection the
authorized representative of the Secretary "directs you to
provide the following specific safeguards (this is printed on
the form) -- adequate clearance and signs at necessary points,
clearance side free of material • • • " (this was written by the
Inspector) (emphasis supplied by me>. Beneath this language
the form contains the printed words: 11 Specific Recommended
Safeguards : " This phrase is · centered above a blank space on the
form. The Inspector then added by . hand the conditions which he
found and which prompted the notice. Following this, he wrote
in the requirements of 30 C.F.R. § 75.1403-S{b), (c), (d),
copying the regulations verbatim except for the addition of the
word "the" at the beginning of subsection(b). These provisions
all contain the word "should." However, it is clear that the
regulation intends a mandatory standard: the provisions of
1403-2 through 1403-11 are intended to guide the inspector in
determining the safeguards which should be required.
I conclude that the notice in this case required the
operator to maintain his track haulageways with adequate
clearance free of material, and that the specific p~ovisions of
the notice as to the extent of clearance, though phrased with
the word "should," intended and were understood to be mandatory.
That they were so understood is evidenced by the fact that 4

2245

citations were issued between January 1979 and September 1983,
for failure to follow the safeguard notice and were not
challenged by the operator. The fact that they were served
upon different representatives of the operator is unimportant.
The operator as an entity is charged with knowledge of them.
The provisions of the regulations clearly intend that
after the original notice is issued, compliance with its terms
is mandatory. The use of the term "should" in the subsequent
subsections does not argue otherwise. Nor does the fact that
these subsections were copied verbatim in the notice by the
inspector argue that the notice intended other than a mandatory
provision.
I conclude that a violation of a mandatory standard was
charged in the citation and was .estabished by the evidence.
The violation was moderately serious and resulted from
Respondent's negligence. The operator did not abate the
violation in the time specified in the citation. Therefore, it
cannot be credited with good faith in attempting to achieve
rapid compliance. Considering the criteria in section llO(i)
of the Act, I conclude that an appropriate penalty for the
violation is $650.00.
ORDER
Based upon the above findings of fact and conclusions of
law IT IS ORDERED that within 30 days of the date of this
decision, Respondent shall pay the sum of $650.00 as a civil
penalty for the violation found herein.

Jwci-n~~
j·- James _U
A. Broderick
(MA<.L5

Administrative Law Judge
Distribution:
George Palmer, Esq., u.s. Department of Labor, Office of the
Solicitor, Suite 201, 2015 2nd Avenue North, Birmingham, AL
35203 (Certified Mail>
R. Stanley Morrow, Esq., and Harold D. Rice, Esq., Jim Walter
Resources, Inc., Mining Division, P.O. Box C-79, Birmingham, AL
35283 (Certified Mail)

H. Gerald Reynolds, Environmental Counsel, Jim Walter
Corporation, P.O. Box 22601, Tampa, FL 33622 (Certified Mail)
slk

2246

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

ROGER A. HUTCHINSON,
Complainant

22041

DEC 231985

DISCRIMINATION PROCEEDING
Docket No. KENT 84-120-D

v.
IDA CARBON CORPORATION,
Respondent

DECISION
Appearances:

Lawrenc-e L. Moise, III, Esq. , Abingdon, Virginia,
for Complainant; Joseph W. Bowman, Esq., Grundy,
Virginia, for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
Complainant's complaint with the Commission was filed pro
se. He alleged that he was discharged because he had
complained of the unsafe condition of company equipment,
particularly the truck he was operating. He was involved in an
accident with the truck on December 30 or 31, 1983, following
which he was discharged. He retained counsel prior to the
scheduled hearing, and the hearing was continued. Pursuant to
notice, the hearing commenced in Abingdon, Virginia, on July
19 , 1984 . Roger A. Hutchinson, Robert Hutchinson, James
Clevinger, Jerry Fletcher, Roger Lee Hunt and Freddy Keen
testified on behalf of Complainant. Joe Robinson, John Slone,
Harry R. Steele, Danny Joe Pu'c kett, Avery Murphy, Elzie Yates
and Ronald Barton testified on behalf of Respondent.
Complainant had subpoenaed Butch Cure, an inspector for the
Federal Mine Safety and Health Administration. He did not
appear at the hearing, and the matter was continued for the
possible taking and submission of his deposition. Inspector
Cure had issued a citation on January 3, 1984, in which he
alleged that an equipment defect affecting safety, including a
sticking throttle linkage and an inoperative rear shock led to
the accident following which Complainant was discharged.
Inspector Cure entered a special appearance by counsel (the
Solicitor of Labor} and moved to quash the subpoena~ . The
Solicitor argued that Cure's appearance was prohibited "in
private actions such as this case in which the Department of
Labor is not a party." I denied the motion to quash, and

issued a new subpoena for the purpose of taking the deposition
of Inspector Cure. The Solicitor filed a Motion for
Reconsideration. The Motion f·or Reconsideration was denied and
the matter further continued for the purpose of receiving
deposition testimony. Mr . Cure did not respond to the subpoena.
On November 1, 1984, I certified the record to the Commission
for disciplinary proceedings against named attorneys in the
Solicitor's office for ignoring my order and counselling the
ignoring of a commission subpoena. On June '25, 1985, the
Commission rejected the certification and returned ' the case to
me for disposition . The Commission suggested that when
Commission subpoenas are ignored, the judge's only remedy is to
himself seek enforcement of the subpoena in Federal District
Court.
Following remand, Complainant offered in evidence a copy
of the safety record of Respondent, having received it from
MSHA. Respondent objected to its admission and I received part
of the exhibit in evidence . I closed the record in this case
by order issued October 25, 1985. Thereafter, both parties
filed post hearing briefs.
I have considered the entire record and the -contentions
of the parties and make the following decision in this case.
FINDINGS OF FACT
At all times pertinent to this proceeding, Respondent was
the owner and operator of a surface mine in Pike County,
Kentucky , known as the No. 1 Surface Mine . Complainant was
employed by Respondent as a miner . He began working at the
subject mine in November 1982 as a rock truck driver, and
continued on the job until January , l984 o He worked 6 days, 58
hours per week and was paid ten dollars an hour.
Respondent followed a practice of having weekly safety
meetings , generally held a t the beginning of the shift on
Mondays. At these meetings and elsewhere , Complainant often
raised questions involving safety : In about May, 1983,
Complainant told his foreman that he was afraid to work under a
large rock protruding from a highwall. The following day, he
called a Federal mine inspector who made an inspection and
required Respondent to put a berm around the area below the
rock. On several occasions , Complainant complained of
inadequate berms on elevated haul roads. He did not complain
of the berms on the road or bench he travelled just prior to
the accident.
On many occasions during a period of about 5 months prior
to the accident, Complainant complained to his foreman that the

2248

accelerator on his truck would stick. Complainant himself
lubricated the linkage on an average of once per week. The
condition was not repaired. He also complained of the
steering--the truck had a tendency to jerk or shimmy to the
left. Respondent worked on the problem but did not eliminate
it. On one occasion Complainant was unable to down shift when
going downhill. This happened about 2 months before the
accident. He told his foreman about it. On the night of the
accident, Complainant inspected his truck and found that the
rear right shock was leaking oil. He told his foreman who
stated that the cylinder was bad and the company had a new one
which would be installed the following day.
On December 30-31, 1983, Complainant was working the
night shift. He began work at about 5:00 p.m. and was
scheduled to work 8 hours. {He worked 10 hours per night for 5
nights, and 8 hours on Saturday.) At some time after midnight
he was driving back from the dump travelling uphill toward the
bench to obtain another load of overburden. He was travelling
at less than 10 miles per hour when he hit a rut in the road
at the top of the hill. This seemed to increase his speed as
the truck "took off" toward the left. He saw the highwall,
braced himself, tried unsuccessfully to shut off the engine,
lost control of the truck, and drove into the highwall. The
cab of the truck was severely damaged. The steering wheel was
broken, the door jarred open, the windshield destroyed.
Complainant was shaken up but not seriously injured. The truck
was later repaired at a cost of between $40,000 and $50,000.
complainant testified that he did not recall whether he
hit the brake. There is no evidence of any defect in the
brakes or the retarder. The distance from the crest of the ·
hill to the highwall was approximately 100 feet. The bench was
about 64 feet wide. There were no skid marks on the bench.
Based on these facts, I conclude that Complainant did not
engage his brakes before hitting the highwall. Complainant
told his foreman, and later told the company President that he
could not explain why he ran into the wall. When the truck was
examined after the accident, it was found to be in first gear.
The maximum speed of the truck in first gear is about 7 miles
per hour.
On January 2, 1984, Respondent's President, Elzie Yates,
after discussing the matter with the foreman, and the safety
director, told Complainant that he was discharged because he
could not give a legitimate reason for running into the
highwall .
On January 3, 1984, MSHA Inspector B.G. cure conducted a
103(g) inspection, and issued a citation charging Respondent

2249

with a violation of 30 C.F.R. § 77.1606(c) (Equipment defects
affecting safety shall be corrected before the equipment is
used). The citation charged that equipment defects affecting
safety of the 773 caterpillar refuse truck "such as the
throttle linkage sticking and the right rear shock being
inoperative" led to the accide~t. This conclusion was stated
in the citation to be based on information received "from the
truck operator and the eye witness." A separate citation was
issued because 3 of the 10 panel and gauge lights were
inoperative. The citations were subsequently modified to show
that they were issued pursuant to section 104(a) of the Act
rather than section 103(g). The time for abatement was
extended because of the extensive repairs to the vehicle. On
March 26, 1984 the citation was terminated when the Respondent
told the Inspector that the right rear shock was repaired and
new linkage was installed on the throttle of the truck. Since
Inspector Cure did not testify, it is difficult to evaluate the
citations, and particularly his conclusion that the shock and
acceleration linkage defects led to the accident.
ISSUES
1. Whether Complainant was engaged in activity protected
under the Mine Act?
2. If so, whether his discharge was motivated in any
part because of protected acitivity?
3. If it was whether the adverse action was motivated
also by unprotected activities and whether Respondent would
have taken the adverse action for unprotected activities alone?
CONCLUSIONS OF LAW
Complainant and Respondent are protected by, and subject
to, the provisions of the Mine Safety Act, and specifically
section 105(c) of the Act.
In order to establish a prima facie case of
discrimination, a miner has the burden of establishing that he
was engaged in protected activity, and that he suffered adverse
action which was motivated in any part because of that activity.
Secretary/Pasula v. Consolidation Coal Co., 2 FMSHRC 2786
(1980), rev'd on other grounds sub~· Consolidation Coal Co.
v. Marshall, 633 F.2d 1211 (3d Cir. 1981)1 Secretary/Robinette
v. United Castle Coal Co., 3 FMSHRC 803 (1981):
Secretary/Jenkins v. Hecla-Day Mines Corporation, 6 _FMSHRC 1842
(1984). The operator may rebut the prima facie case by
establishing that the miner was not engaged in protected
activity, or that the adverse action was not motivated, in any

part, by the protected activity. The operator may also raise
an affirmative defense, if it cannot rebut the prima facie
case, by showing that it was, in part, motivated by unprotected
activities and that it would have taken the adverse action for
the unprotected activities alone. The operator bears the
burden of proof with regard to the affirmative defense. Haro
v. Magma Copper Co., 4 FMSHRC 1935 (1982); Secretary/Jenkrns-v.
Hecla-Day, supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th
Cir. 1983); Donovan v. Stafford Construction Co., 732 F.2d 954
(D.C. Cir. 1984).
I conclude that when Complainant told Respondent about
the rock overhanging the highwall in May, 1983, and when he
called the Federal Inspector about it, he was engaged in
activity protected under the Act. When he complained of
inadequate berms on elevated roads, this also was protected
activity.
When he complained of the accelerator linkage
sticking on his truck, and the steering problems, and the
leaking right rear shock, he was engaged in protected activity.
Complainant was discharged from his job on January 2, 1984.
This was certainly adverse action. The crucial question is
whether the evidence establishes that the adverse action was
motivated in any part by the protected activity. I conclude
that it does not. The incidents concerning the rock protruding
from the highwall, and the inadequate berms are too remote in
time to be related in any way to Complainant's discharge.
There is no direct evidence that his complaints about the
steering, the accelerator linkage or the shock were factors
considered by Respondent in its decision to discharge him. Nor
is there any evidence from which I could reasonably infer that
these complaints were any part of the motive for discharge.
Therefore, I conclude that Complainant has failed to establish
a prima facie case of discrimination.
Further, the evidence establishes that Respondent had a
legitimate business reason for the discharge <the damage to the
truck) and would have discharged complainant in any event for
unprotected activities. For both of these reasons, complainant
has failed to establish that he was discharged in violation of
section 105(c) of the Act.

2251

ORDER
Based on the above findings of fact and conclusions of
law, the complaint and this proceeding are DISMISSED.

j~~~~~

James A. Broderick
Administrative Law Judge

Distribution:
Lawrence L. Moise, III, Esq., Robert Auston Vinyard, 138 Court
Street, Box 1137, Abingdon, VA 24210-1127 (Certified Mail)
Joseph w. Bowman, Esq., Street, Street, Street, Scott and
Bowman, P.O. Drawer s, Grundy, VA 24614 (Certified Mail)
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2252

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

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

December 26 , 1985

CIVIL PENALTY PROCEEDING
Docket No . WEST 85-1-M
A.C. No. 05-03299 - 05504

v.

Moffat Tunnel Mine

YELLOW GOLD OF CRIPPLE CREEK,
INC. I
Respondent
DECISION
Appearances:

Robert J. Lesnick, Esq . , Office of the Solicitor ,
u.s. Department of Labor, Denver, Colorado,
for Petitioner;
Charles A. Dager, President, Yellow Gold of
Cripple Creek, Inc., prose.

Before:

Judge Carlson
REVIEW OF THE EVIDENCE

General Background
This case, heard under provisions of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (the Act), arose
from a January 24, 1984, inspection of the Yellow Gold of Cripple
Creek Mine (Yellow Gold) by federal mine inspector James L. Atwood.
Atwood issued a citation under section 30 C.F.R. § 57.5-2, alleging,
in essence, that Yellow Gold lacked the proper equipment to conduct
gas or fume survey s "to determine the adequacy of control measures"
as required by that standard . The inspector fixed a termination or
abatement date of February 7, 1984. On February 16, 1984, Atwood
extended the abatement date to February 20, 1984. On May 8, 1984,
the inspector returned to the mine and found that three persons
were in the mine without proper gas or fume detection equipment.
He therefore issued a "failure to abate" withdrawal order under
section 104(b) of the Act.
The Secretary now petitions for a civil penalty of $195.00.
Yellow Gold contests the violation and the penalty .
An evidentiary hearing was held in Denver, Colorado in which
both parties presented evidence. No post-hearing briefs were filed.

2253

The Secretary predicates his case fo~ violation on the
mandatory safety regulation published at 30 C. F.R . § 57 . 5 - 2 (now
§ 57 . 5002), which provides:
Dust, gas, mist, and fume surveys shall be
conducted as frequently as necessary to
determine the adequacy of control measures .
In the context of this case, the cited standard must be read
in conjunction with two related standards which specify allowable
levels of gases. The first of these , published at 30 C.F . R. § 57.5-1
(now§ 57 . 5001), provides , among other things , that the threshold
limit value for carbon dioxide is 5,000 parts per million. The provision itself is contained in a publication of the American Conference
of Governmental Industrial Hygienists (petitioner ' s exhibit 2) which
is adopted by reference in the standard.
§

The second standard is found at 30 C . F.R. § 57.5-15 (now
57 . 5015) and provides :
Air in all active workings shall contain at
least 19.5 volume percent oxygen .

The undisputed evidence shows that Yellow Gold, a small gold
mining company, holds rights to use the Moffat Tunnel near Cripple
Creek, Colorado, to gain access to drifts leading off from the
tunnel . Other mining companies share rights to the tunnel , which
has been in existence for many years. Yellow Go l d , at the times
pertinent in this proceeding, was engaged i n drift- driving and
mapping. It had as yet undertaken no production from within the
mine. It did, however , sell some rock from old dumps to which it
had rights .
The evidence also shows that Yellow Gold used equipment manufactured outside the State of Colorado.
The Secretary's Case
The principal witnesses for the Secretary were James Atwood,
the inspector who issued the 104(a) citation to Yellow Gold and
the subsequent l04(b) withdrawal order; and Warren Andrews , a mining
engineer employed by MSHA . His specialty is mine ventilation.
These witnesses testified that the atmosphere in the Moffat
Tunnel was well known for its tendency to show excessive amounts
of carbon dioxide . Conversely , it was common to find insufficient
oxygen content in the air of the tunnel complex. The mining
community in · the Cr ipple Creek area , they averred , was well acquainted with these tendencies . Consequently, according to the
government witnesses, frequent testing for oxygen and carbon dioxide
levels is necessary.

22 54

Inspector Atwood testified that at the request of Charles
Dager, president of Yellow Gold, he conducted a courtesy inspection
of the company's workings in December of 1983. On this occasion,
Atwood testified, he gave Mr. Dager a notice that gas surveys were
necessary. He discussed with Dager the types of testing devices
available for gas-level measurement. He also delivered to Dager
a nonpenalty warning under MSHA's courtesy visit program specifying
a violation of 30 C.F.R. § 57.5-2. The notice refers to a "history
of concentrations of carbon dioxide" and the unavailability of any
testing method for gases other than a "flame safety lamp."
The inspector testified that a . Draeger detector tube system
or constant monitoring system would furnish suitable measurements
of both carbon dioxide and oxygen levels. The Kohler flame lamp,
which respondent is conceded to have used consistently, is incapable
of accurate measurement of oxygen or carbon dioxide levels, according
to Atwood. On the contrary, it is useful only for detection of
methane concentrations. and acute oxygen deficiencies. The flame in
the lamp goes out when the oxygen content of the atmosphere reaches
16.25 percent. The flame lamp, he testified, does not measure carbon
dioxide at all. The inspector indicated that he explained the lamp's
deficiencies to Dager at the time of the courtesy visit (Tr. 77).
When Atwood conducted the regular inspection on January 24, 1984,
Yellow Gold still had no testing equipment available except for the
flame lamp. This is undisputed. On that occasion, Atwood and . another
inspector who accompanied him, took readings with a Draeger tester
and with "cricket" tubes. The latter, according to Atwood, are onetime-use tubes which are activated by breaking in the atmosphere to
be tested. Laboratory analyses then reveal the particular gas concentration tested for with high accuracy. The "cricket" tests showed
a maximum of .5 percent carbon dioxide. On the Draeger, tests taken
at slightly different locations showed a maximum concentration between
. 6 and .7 percent. The Draeger showed oxygen at 19.28 percent, a
figure below the allowable concentration • . Atwood ·testified that exposure to an oxygen level below the minimum set by the standard could
cause conditions ranging from dizziness to loss of consciousness.
Carbon dioxide exposure above the allowable limits for that gas would
produce similar results.
Inspector Atwood explained that when he issued the 104(a) citation
of January 17, 1984, he allowed Yellow Gold until February 7, 1984,
for abatement of the violation. On a follow-up visit on February 16,
1984, according to Atwood, no testing devices were available at the
mine . Upon Mr. Dager's representation that a Draeger detection device
was on order from a supplier in Grand Junction, Colorado and had been
shipped, he did not at that time issue a failure to abate order under
section 104(b) of the Act. Instead, he extended that abatement time
to February 20, 1984.
Atwood testified that he was next able to visit the mine on
May 8, 1984. Mr. Dager and two other persons were in the mine.

2255

Again, according to the inspector, no proper testing equipment was
available at the mine. He therefore declared Yellow Gold to have
failed to comply with the abatement requirements specified in the 104(a)
citation and proceeded to close the mine through issuance of a 104(b)
withdrawal order. Atwood terminated the order two days later when Dager
produced a Draeger tester which had not been at the mine on the day of
the closure. Even then, the inspector testified, Mr. Dager did not
have the correct tubes to test for carbon dioxide. Atwood himself
furnished these so that the withdrawal order could be terminated.
Warren Andrews, the Secretary's expert in underground mine ventilation, gave testimony which essentially paralleled that of Inspector
Atwood. He stressed that the United States Bureau of Mines had done
an extensive study in the 1920's on the release of carbon dioxide from
the rock found in the Cripple Creek area, and had documented 35 fatalities owing to excess concentrations of that gas through the year
1928.
(Petitioner's exhibit 6.)
h

Beyond that, Andrews himself did investigations of the Moffat
Tunnel in 1979 and 1981 to determine firsthand the gas levels and the
ventilation requirements for safe mining. In December 1981 he recommended the installation of a fan to provide positive ventilation. 1/
Andrews made a further investigation in April of 1982 of the area of
the tunnel where the crosscuts controlled by Yellow Gold were located.
On February 15, 1984, he returned to the tunnel for a further survey
of the Yellow Gold workings. As a result of that investigation he made
updated recommendations regarding air flows and other technical ventilation concerns. Andrews indicated that in his initial 1979 survey he
found the oxygen level at only 13.10 percent and the carbon dioxide at
4.97 percent.
Andrews indicated that the best gas monitoring system for the
Moffat Tunnel would be a continuous system. He further indicated, however, · that periodic testing could be done with the intervals dictated
by the previous reading. If, for example, previous samples of carbon
dioxide were as· low as one-tenth of a percent, subsequent testing would
be sufficient if done at the beginning of each shift. ~esting every
half-shift would be sufficient following readings of two-tenths to
three-tenths. For readings as high as four-tenths, samplings would have
to be at least hourly (Tr. 144.)
According to Andrews, in mines where certain gases have never been
detected, no periodic testing should be necessary. This was not the
case in the mine in question, however, where a long history showed a
likelihood of carbon dioxide and oxygen problems. Andrews agreed with
Yellow Gold's position that carbon dioxide levels within the mine could
vary widely with shifts in barometric pressure. He did not agree, however, that barometric readings alone or in conjunction with flame lamp
observations were a reliable substitute for direct readings of gas

1/ Andrews did not mention when the fan was installed. Other evidence,
however, shows that a fan was installed and in operation at least as
early as April 1983 (Tr. 23-26).

2256

levels (Tr. 143-144}. With regard to the flame lamp device, Andrews
insisted that it was useful in detecting acute oxygen shortages only,
and was not reliable at all for excess carbon dioxide concentrations.
He did agree that an experienced user could make some judgments based
on changes in the height or color of the flame, but maintained that
such judgments were too subjective to be reliable except, perhaps, in
the case of methane detection. Methane, however, was not a concern
in the Moffat area.
Yellow Gold's Case
Mr. Alexander Burr, an MSHA inspector, was called by the
Secretary, but virtually all of his evidence tended to be favorable
to Yellow Gold. He had inspected Yellow Gold from 1978 through
April of 1983. He acknowledged that he had told Mr. Dager that
use of a flame safety lamp was sufficient in the mine. He also
testified his own occasional gas tests with a Draeger device turned
up '!nothing sufficient" to cause him to tell Mr. Dager to "have
other equipment 11 (Tr. 23). During his years as inspector in the
Moffat Tunnel, he testified, Yellow Gold's management had cooperated
well.
Charles Dager, president of Yellow Gold, gave testimony for the
company. He maintained that Yellow Gold's policy was always to
use two Kohler flame safety lamps underground to provide continuing
monitoring of gases. The lamps were lighted whenever the barometric
pressure at the surface was below 29.04. According to Dager, a
barometer was installed at the mine portal and a miner was always
at the portal to notify miners underground of barometric changes.
He believes that the safety lamps, together with monitoring of the
barometer, provided the miners good protection. Moreover, he
stressed that the cited standard specified no particular method
frequency for taking surveys; therefore, mine operators were free
to develop their own.
In the course of his testimony he acknowledged receipt of
Inspector Atwood's notice on December 12, 1983, that the mine needed
gas-testing equipment beyond the Kohler lamps. After some uncertainty 1
he asserted that a Draeger was delivered to him on February 15, 1984,
and that a letter to ~SHA c~aiming a January abatement was incorrect.
He also agreed that he had not used the Draeger before the time that
Inspector Atwood closed the mine. He had, he said, tried to use it
once, but discovered he did not have the right tubes (Tr. 210-211}.
He also testified that he had voluntarily shut down the mine ''a few
days 11 after the Draeger arrived because of a lack of financing. He
further testified that May 8, 1984, when Inspector Atwood issued the
104(b} withdrawal order was the first day the mine was open after
th~ voluntary closure.
Dager himself was in the mine with two other
persons, doing mapping. He c·onceded that at· that time the Draeger
tester was in his automobile at Victor, Colorado. ·

2257

DISCUSSION
The evidence discloses that the Moffat Tunnel had a wellestablished reputatio n for build-ups of carbon dioxide gas. It
is equally certain that the oxygen content of the air in the
tunnel (and the drifts angling off from the tunnel) was sometimes
too low for safe work. These tendencies were confirmed by the
actual sampling done at various times by MSHA officials. Given
this knowledge, it f o llows that there was a need for periodic
sampling of the mine atmosphere for presence of these two gases
as required by 30 C.F.R. § 57.5-2.
Yellow Gold contends that since the standard sets forth no
particular methods for gas surveys, mine operators are free to
specify their own methods of testing .
I cannot agree. The cited
standard must be read in conjunction with those other standards
which specify the minimum or maximum levels of gases. Moreover,
30 C. F.R. § 57.5- 2 plainly implies that the device or method
used must produce a reasonably accurate and reliable result . In
this regard, the shortcomings of the Kohler flame safety lamp are
all too apparent . I am persuaded by the testimony of Inspector
Atwood and Mr . Andrews that the lamp was truly useful in warning of
oxygen deficiencies only when those deficiencies become acute. The
undisputed evidence shows that the flame in the lamp goes out only
when the oxygen reaches a low of 16.25 percent. The oxygen-level
standard, however, prescribes a minimum of 19.50 percent . The
lamp is not designed to signal when the oxygen level reaches minimally safe level prescribed by the standard. Moreover, the lamp
gives no useful measurement of carbon dioxide content .
On the other hand, the undisputed evidence shows that several
more sophisticated devices are marketed which will give reasonably
accurate readings of both gases . Yellow Gold was obliged to have
and use one of those devices.
In complaining of the lack of specificity of the cited standard,
Yellow Gold also draws attention to the requirement that surveys be
conducted "as frequently as necessary." Yellow Go ld suggests that
the phrase is too vague to be enforceable .
It is fundamental that any statute, regulation, or standard
must give adequate warning of what is required to the persons whose
conduct is to be covered by the enactment. In Connally v. General
Construction Co., 269 U.S. 385, 391 (1925), the Supreme Court stated;
[A] statute which either forbids or requires
the doing of an act in terms so vague that
men of common intelligence must necessarily
guess at its meaning and differ as to its
application violates the first essential of
due process of law .

2258

Statutes and standards, however, cannot be considered in
a vacuum. Courts have generally required that when a safety
regulation is examined for meeting due process certainty requirements, it must be looked at "in light of the conduct to which it
is applied." Ray Evers Welding Co. v. OSHRC, 625 F.2d 726, 732
(6th Cir. 1980). General terms such as '1 unsafe" or "dangerous"
or "as necessary" appear frequently in federal safety and health
standards. This approach has been recognized as necessary where
narrower terms would be too restrictive. Standards, that is to
say, must often be made "simple and brief in order to be broadly
adaptable to myriad circumstances." Kerr McGee Corporation,
3 FH$HRC 2496 (1981). In Alabama By -Produc-ts Corporat1.on, 4 FMSHRC
2128 (1982) the issue was whether the Secretary could enforce a
standard requiring machinery to be kept in "safe operating condition." In holding that this language was not too vague the
Commission declared:
[I]n deciding whether machinery or equipment
is in safe or unsafe operating condition, we
conclude that the alleged violative condition
is appropriately measured against the standard
of whether a reasonably prudent person familiar
with the factual circumstances surrounding the
allegedly hazardous condition, including any
facts peculiar to the mining industry, would
recognize a hazard warranting corrective action
within the purview of the applicable regulation.
See also Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir.
1974); United States Steel Corporation, 5 FMSHRC 3 (1983), 81-136,
January 27, 1983 .
When the ~~reasonably prudent person " test is applied, the
standard in question here meets constitutional due process requirements. Also, upon the record before me, I must conclude that
a reasonably prudent person familiar with the circumstances shown
to have existed in the Moffat Tunnel, including any facts peculiar
to the mining industry, would have recognized the need to test the
tunnel air at least several times a day with adequate equipment.
This is so because the evidence conclusively demonstrates a genuine
potential for high carbon dioxide levels and low oxygen levels in
the mine.
As to the actual frequency of the testing, the guidelines
set out in Mr. Andrew's testimony appear reasonable. The real
point here, however, is that Yellow Gold did no testing at all with
an adequate testing device. Had the company had any sort of
testing schedule with a Draeger or other effective device, that
schedule could be considered in light of the "reasonable and
prudent" test.

2259

As it is, however, it is plain to me that Yellow Gold
violated the cited standard.
We now consider whether Inspector Burr ' s representations
to Mr. Dager concerning the adequacy of the Kohler flame safety
lamp for gas testing furnishes Yellow Gold a legal excuse for
the violation.
I must hold that it does not. It is clear that
Burr ' s assurances to the Yellow Gold official were incorrect and
misleading. No issue of estoppel is fairly raised, however,
because before the issuance of the citation Yellow Gold had ample
and repeated warning from Inspector Atwood that Burr's opinion
was wrong and that MSHA would insist upon a better testing implement than the archaic flame safety lamp. Thus, while it is
unfortunate that Inspector Burr misadvised the respondent , that
fact cannot justify Yellow Gold's non - compliance.
The Secretary proposes a civil penalty of $195.00. Section
llO(i) of the Act requires the Commission, in penalty assessments,
to consider the mine operator's size, its negligence, its good
faith in seeking rapid compliance, its history of prior violations,
the effect of a monetary penalty on its ability to continue in
business, and the gravity of the violation itself.
The Yellow Gold operation is quite small. The Secretary
produced no evidence on the company's history of violations.
Yellow Gold ' s president acknowledged that payment of the proposed
penalty would not interfere with its ability to continue in
business.
I must classify the gravity of the violation as moderate. The evidence shows that excessive concentrations of carbon
dioxide or insufficient oxygen could, under the proper circumstances,
cause death. No large crews were underground at the relevant times,
however , and some protection was provided by the ventilation fan .
Yellow Gold's negligence in failing to conduct adequate gas testing
was moderate. At an earlier date, when the operator was relying
on Inspector Burr's advice on the Kohler flame safety lamp, there
would have been no negligence. By the time of the citation,
however, Yellow Gold knew, or certainly should have known, that
its testing practices and equipment were not in compliance with
the law.
.
The chief penalty element in this case, however, is Yellow
Gold's failure to achieve tLmely abatement. The inspector's
original abatement deadline was reasonable. Even so, he extended
it further.
Yet, when he again visited the mine on May 8 , 1984,
three people were underground but the Draeger, which had never been
used, was elsewhere. I have not overlooked that the mine was
·
voluntarily closed from sometime in February 1984 until sometime
in early May . Mr . Dager claims that he received the Draeger tester
on February 15 , 1984, and that he voluntarily closed the mine 11 four
or five days 11 later (Tr. 202, 210). The accuracy of these recol lections is questionable. Earlier in the hearing the witness had
said he closed the mine "in January or February .. of 1984. It is

2280

particularly doubtful that he had the Draeger on February 15,
since the inspector was at the mine on February 15 and issued
the extension for abatement to February 20. Those dates are
documented. Moreover, in a letter from Mr. Dager directed to
MSHA on December 8, 1984, he declared that abatement had been
"accomplished within a week of the original citation, 1-24-84."
(Exhibit P-8). Because of this confusion one cannot be certain
whether the mine was voluntarily closed before or after the
final abatement date of February 20, 1985.
(Abatement was not
necessary while the mine was closed down.)
It is certain, however,
that when the mine reopened in May of 1984, no Draeger or other
suitable tester was available. Abatement was required by then,
and it had not occurred. If Mr. Dager's testimony is to be
accepted, Yellow Gold had from February 15, 1984, to May 8, 1984,
to discover that the Draeger device had not been delivered with
the proper tubes for carbon dioxide testing. Under these
circumstances I must hold that abatement was not timely and that
Yellow Gold failed to exercise full good faith in its abatement
attempts.
Having considered the facts in light of all the statutory
criteria for penalty assessment, I conclude that $195.00 is an
appropriate civil penalty.
CONCLUSIONS OF LAW
Based upon the entire record in this case, . and the findings
of fact contained in the narrative portion of this decision, the
following conclusions of law are made:
{1)
That the Commission has jurisdiction to decide this
matter.
(2} That Yellow Gold violated the standard published at
30 C.F.R. § 57.5-2 (now 30 C.F.R. § 57.5002), as alleged.
(3)
That the extended time for abatement set by the
Secretary was not unreasonable.
(4)
That Yellow Gold failed to fully abate the violation
within the extended time for abatement set by the Secretary.
(5) That $195.00 is the appropriate civil penalty for the
violation.

2261

ORDER
Accordingly, the citation is ORDERED affirmed , and Yellow
Gold is ORDERED to pay a civil penalty of $195.00 within 30 days
of the date of this decision.

John A. Carlson
Administrative Law Judge

Distribution:
Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado
80294
(Certified Mail)
Charles A. Dager, President, Yellow Gold of Cripple Creek, Inc.,
P.O. Box 85, Victor , Colorado 80860
(Certified Mail)

/ot

2262

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

DEC2 71985

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

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

CIVIL PENALTY PROCEEDING
Docket No . WEST 84-3
A.C . No. 05-03455-03520

v.

Dorchester No. 1 Mine

DORCHESTER COAL COMPANY,
Respondent
DECISION
Appearances:

James H. Barkley, Esq. and Margaret A. Miller, Esq.,
Office of the Solicitor, U.S. Department of Labor ,
Denver, Colorado,
for Petitioner;
Phillip D. Barber, Esq., Welborn , Dufford, Brown &
Tooley, Denver, Colorado,
for Respondent.

Before:

Judge Carlson

This case was fully heard upon the merits in Denver, Colorado.
Before the matter was taken up fo r decision , the parties asked for
time in which to work out a settlement.
The parties have now submitted a settlement agreement which ,
if approved , would resolve all pending issues.
Specifically, the parties agree that respondent violated the
standard charged in the citation, but did so in reliance upon the
erroneous verbal representations of an MSHA district official as to
the requirements of the standard .
The Secr etary therefore seeks to amend the proposed civil
penalty from the $79 . 00 originally sought to the sum of $1.00 .
Conditioned upon the approval of the agreement, Dorchester moves
for leave to withdraw its notice of contest .
Having hear d all of the evidence in this case, and having considered the representations made in the settlement agreement, I am
convinced that the terms of t he agreement are wholly appropriate.
Accordingly , the settlement agreement is ORDERED approved in
its entirety. Respondent , Dorchester Coal Company , is ORDERED to
pay a civil . penalty of $1.00 within 40 days of the date of this
decision.
'1

1/'t

/)

~,...-¥1

'

( John A. Carlson
Admi nistrative Law Judge

2263

Distribution:
James H. Barkley, Esq. and Margaret A. Miller, Esq., Office of the
Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout
Street, Denver, Colorado 80294
(Certified Mail)
Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700 Broadway ,
Denver, Colorado 80290-1199
(Certified Mail)

/ot

2284

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
GEORGE M. SWANK,
Complainant

OEC 2 719~

DISCRIMINATION PROCEEDING
Docket No. WEST 85-31-DM
:

MSHA Case No. 84-14
Ironclad Mine

v.
SILVER STATE MINING COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Carlson

The parties, through counsel, have filed a stipulation which
settles all matters at issue in this discrimination proceeding.
It should be noted that the original complaint in this case
was filed by the alleged discriminatee, pro se. Later, the
Secretary of Labor, who had originally declined to prosecute on
behalf of the complaining miner, was granted leave to intervene
under Commission Rules 2700.4(a) and (c). Rick P. Sauer, Esq.,
who filed his entry of appearance as private counsel for the complainant after the filing o.f the original pro se complaint, but
before the Secretary's intervention, did not w~thdraw after the
Secretary's intervention, and participated in the settlement negotiations and signed the agreement.
The specifics of the agreement are as follows:
1. Respondent hereby agrees to compensate
George M. Swank in the amount of $2,100.00
for loss of back wages and other expenses
from his termination.
2. Respondent hereby agrees to waive
payment of any and all loans made by
Respondent to George M. Swank prior to
his termination.
3. In the interest of achieving an
expeditious disposition of Mr. Swank's
claims against Respondent, the Secretary
of Labor proposes no penalty be assessed
against Respondent.

2265

4. The parties recognize that George M.
Swank, through his private attorney, may
have other claims against the Respondent
arising from the same facts which gave
rise to the discrimination action , and
that those other claims may be settled
in whole or in part by agreements between
Mr. Swank, acting through his private
attorney , and respondent . However , the
parties agree that no such agreement will
be binding on the Secretary and that the
above agreement represents the sole and
entire agreement to which the Secretary
is a party in this action .

5. Each party agrees to bear its own
costs and expenses .
Having considered the agreement, and the contents of the file ,
conclude that the proposed settlement is appropriate and should
be approved in all respects . Accordingly, respondent Silver State
Mining Company shall pay to George M. Swank , within 40 days of the
date of this decision, the sum of $2,100 . 00 , whereupon all other
provisions of the settlement agreement shall be deemed effectuated
and this proceeding shall be considered terminated.
I

SO ORDERED.

John A. Carlson
Administrative Law Judge

Distribution:
James H. Barkley, Esq., Office of the Solicitor, u.s. Department of
Labor, 1585 Federal Building , 1961 Stout Street , Denver , Colorado
80294
(Certified Mail)
Mr. Geor ge M. Swank , P . O. Box 26464, Prescott Valley , Arizona 86312
(Certified Mail)
Randy L. Parcel, Esq ., Parcel & Mauro, 1801 California Street,
Suite 3600, Denver, Col orado 80202
(Certified Mail)
Rick P. Sauer , Esq. , 831 Royal Gorge Boulevard , Suite 1 28 , Canon Ci t y;
Colo r ado 81212
(Cert i fied Mail)
/ot

2266

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

December 27, 1985

CONTEST PROCEEDING

OLD BEN COAL COMPANY,
Contestant

Docket No . WEVA 84~229-R
Order No. 2142766; 4/25/84

v.

Docket No. WEVA 84- 230 - R
Order No . 2142767; 4/25/84

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH ·
ADMINIS['RATION (MSHA} ·,
Respondent

..

.

Docket No. WEVA 84- 231-R
Citation No . 2143361; 7/10/84
Formerly Order No. 2143 361 ;
4/26/84
Docket No . WEVA 84-232- R
Order No. 227272 7 ; 4/26/84
Docket No . WEVA 84-269-R
Order No . 2143410 ; 5/22/84
Docket No. WEVA 84 - 270- R
Order No . 2143411 ; 5/22/84
Docket No . WEVA 84- 271- R
Order No . 2145709; 5/22/84
Docket No. WEVA 84- 272- R
Order No. 2145710; 5/22/84
Docket No . WEVA 84- 273- R
Order No. 2145712; 5/22/84
Docket No. WEVA 84-274 - R
Order No. 2145713; 5/22/84
Docket No. WEVA 84-275- R
Order No . 2145716 ;. 5/22/84
Docket No. WEVA 84 - 276 - R
Order No. 2438191; 5/22/84
Mine No. 20

2267

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 84 - 324
A. C. No . 46-02052-03517

v.

Docket No . WEVA 85-56
A. C. No. 46-02052-03527

OLD BEN COAL COMPANY,
Respondent

Docket No. WEVA 85-71
A. C . No. 46 - 02052 - 03528
Docket No. WEVA 85- 78
A. C. No. 46-02052-03529
:

Mine No. 20

DECISION APPROVING SETTLEMENT
Before:

Judge Steffey

Counsel for the Secretary of Labor filed on December 18 ,
1985, a motion for approval of settlement in the above entitled proceeding. Under the parties' settlement agreement ,
Old Ben Coal Company would pay penalties totaling $10,650 instead of the penalties totaling $16,200 proposed by MSHA.
Section llO(i) of the Federal Mine Safety and Health Act
of 1977 lists six criteria which are required to be used in
determining civil penalties. MSHA proposes penalties by using various types of assessment procedures which are described
in Part 100 of Title 30 of the Code of Federal Regulations .
If MSHA considers alleged violations to be somewhat routine
in nature, it employs an assessment formula which is described
in section 100.3 of its assessment procedures. When penalties are proposed under section 100 . 3, penalty points are
assigned under the four criteria of the size of the operator's
business, the operator's history of previous violations , the
operator's negligence, if any, and the gravity of the alleged
violation.
The points assigned under each of the four criteria are
then added and converted to a dollar amount by referring to
the conversion table set forth in section 100.3(g) of the
assessment formula.
If the operator abates the alleged
violation within the time given by the inspector in his
citation, the monetary amount determined under the four
criteria is reduced by 30 percent under the fifth criterion
of the operator ' s good- faith effort to achieve rapid compliance after the violation was cited .
The sixth criterion of
whether the payment of penalties would cause the operator to

2268

discontinue in business is normally not given any weight because MSHA does not consider that criterion unless the operator submits financial _data to one of MSHA's district managers.
If alleged violations are considered by MSHA to be unusual in nature, particularly if the citations or orders alleging violations were issued pursuant to the imminent-danger
or unwarrantable-failure provisions of the Act, MSHA waives
the use of the regular assessment formula set forth in section 100.3 and proposes penalties on the basis of narrative
findings made pursuant to section 100.5 of its assessment
procedures. All of the penalties involved in this proceeding were proposed by MSHA on the basis of narrative findings
because all of the orders or citations were issued in conjunction with imminent-danger orders or pursuant to· the
unwarrantable-failure provisions of the Act, i.e. sections
l07{a) and 104(d).
MSHA's narrative findings mention facts pertaining to
all the criteria, except whether payment of penalties would
cause ~he operator to discontinue in business. MSHA's findings concentrate on the two criteria of negligence and
gravity. At the conclusion of its findings, MSHA gives a
monetary amount, but does not specify how much of the penalty
has been proposed under any single one of the five criteria
which have been discussed. Therefore, all of MSHA's penalties proposed in this proceeding are the result of a subjective process which is not well defined. In such circumstances, a motion for approval of settlement only has to
show the existence of extenuating circumstances, which could
not have been known by MSHA when its narrative findings were
written, to justify a reduction in MSHA's proposed penalties.
The motion for approval of settlement follows the procedure discussed above and gives ameliorating facts not considered by MSHA to support the parties' agreement to reduce
all of MSHA's proposed penalties, except for the penalty proposed by MSHA for the violation of section 75.303 alleged in
Order No. 2145037, by an amount ranging from $100 to $2,000.
Before I consider the reasons for reducing penalties given
in the Secretary's motion for approval of settlement, I
shall discuss four of the six criteria in a generalized
manner because the motion for approval of settlement justi·fies all the reductions in MSHA's proposed penalties under
the two criteria of negligence and gravity.
The proposed assessment sheet in the official file in
Docket No. WEVA 85-78 indicates that Old Ben's No. 20· Mine,
here involved, produces about 604,000 tons of coal annually
and that ·all of Old Ben's mines produce approximately
10,658,000 tons of coal per year. Those production figures

2269

support a conclusion. that Old Ben is a large operator and
that any penalties approved in this proceeding should be
in an upper range of magnitude to the extent that . they are
determined under the criterion of the size o~ Old Ben's
business.
The motion for approval of settlement states ·that payment of penalties will not cause Old·Ben to discontinue in
business. Therefore, it will be unnecessary to reduce any
of the penalties under the criterion that payment of penalties would cause Old Ben to discontinue in business.
The motion for approval of settlement and all of the
inspectors' terminations of orders or citations indicate
that Old Ben demonstrated a good-faith effort to achieve
.rapid compliance. As indicated above, when MSHA is proposing penalties under section 100.3, it reduces penalties by
30 percent when an operator demonstrates a good-faith effort
to achieve rapid compliance. Since the penalties in this
proceeding were all proposed under section 100.5, MSHA has
not indicated what weight, if any, it has given to Old Ben's
good-faith abatement of all alleged violations.
When I am assessing penal.t ies ·in a. contested proceeding,
I do not decrease a penalty otherwise determined under the
other criteria unless an operator shows an outstanding
effo~t to achieve rapid compliance by doing something unusual
such as voluntarily shutting down production and assigning
his entire work force to abating one or more alleged violations. Likewise, I do not increase a penalty otherwise
determined under the other criteria unless the operator
shows outright recalcitrance in trying to achieve compliance. Since the motion for approval of settlement and the
inspectors' termination sheets fail to show either an outstanding effort to achieve rapid compliance or a lack of
good-faith in trying to achiev~ compliance, I shall assume
that no penalty proposed by- ·MSHA has been increased or
reduced under the criterion of good-faith abatement.
It is not possible to determine from MSHA's narrative
findings how much of the proposed penalties were attributed
to the criterion of Old Ben's history of previous violations.
The narrative findings simply state that the "number of
previously assessed violations * * * appear on the attached
Proposed Assessment." The proposed assessment sheets show
the number of assessed violations, excluding $20 penalties
assessed ·under section 100.4 and promptly paid, for the
24-month period preceding the occurrence of the violations
alleged in each docket.

22,..10

Under section 100 . 3(c) of MSHA ' s regular assessment
formula , assessed violations are divided by the number of
inspection days to derive a factor which is then applied
to a table in section 100 . 3{c) to determine the number of
penalty points which should be assigned for a given violation . The proposed assessment sheet in each of the four
dockets here involved provides numbers which result in
factors ranging from 2. 0 in Docket No . WEVA 84- 324 to a
factor of .81 in Docket No. WEVA 85-56 . Application of
those factors to the table in section 100 . 3{c) would require
that 18 penalty points be assigned in Docket No . WEVA 84-324
and only 6 penalty points in Docket No. WEVA 85-56. The
assessed penalties and inspection days shown in the proposed
assessment sheets are completely different from a tabulation
of assessments and inspection days included in the back- up
materials in Docket No. WEVA 85- 71 . In that docket , MSHA
shows that Old Ben was assessed 80 penalties during 172
inspection days for the years 1983 and 1984 . The factor
resulting from use of the aforesaid information would require assignment of only two penalty points under section
100 . 3(c).
The motion for approval of settlement (p . 22) provides
some additional facts to be considered in evaluating Old
Ben's history of previous violations. It is there stated
that Old Ben has not previously been assessed fo r a violation of sections 75.503, 75.509 , 75.603 , 75.703, and
75.1725(a). When I am assessing penalties in a contested
proceeding, I increase penalties when there is evidence
showing a large number of previous violations of the same
standard which is under consideration and I assess no
amount under the criterion of history of previous violations if there is evidence showing that the operator has
not previously violated that particular standard. The
motion for approval of settlement also shows that Old Ben has
been cited for only one previous violation of sections 75.514
and 75.807, has been cited for two previous violations of
section 75 . 1003, and has been cited for 10 orevious violations of section 75.200.
Previous violations of section 75.200 are a matter of
concern because a large number of all fatalities in underground coal mines are caused by roof falls . Knowing that
Old Ben has 10 previous violations of section 75.200 is not,
by itself, very useful information unless facts are also
known concerning two aspects of the 10 previous violations .
One aspect is the date on which an alleged violation occurred. The date is important because the time of occurrence shows whether Old Ben is improving its record of
previous violations by reducing the violations which have
recently occurred . The other important consideration is

2271

the dollar amount assessed for a given violation because
usually the size of the penalty provides an indication of
the seriousness of the previous violations. Since neither
the motion for approval of settlement nor the official
files contain any information as to the dates of the previous violations or the amounts of the assessments, there is
no way to be certain that the penalties proposed by MSHA
in this proceeding include an appropriate amount which has
been included in each proposed penalty under the criterion
of history of previous violations.
Probably the most useful information as to the criterion
of history of previous violations is the fact that Old Ben
had a relatively favorable history of previous violations
for the two years of 1983 and 1984.
Inasmuch as all but one
of the violations under consideration in this proceeding
were cited in April, May, and June of 1984, I believe i t is
safe to conclude that the proposed penalties, all of which
are in an upper range of magnitude, include an appropriate
amount under the criterion of history of previous violations. Only one settlement penalty is for an amount of less
than $500.
Therefore, I conclude that the settlement
amounts are adequate, even in the case of a large operator,
to allow for attributing an appropriate amount of the penalties under the four criteria of size of the operator's
business, ability to pay penalties, history of previous
violations, and good-faith abatement.
I shall hereinafter discuss the two remaining criteria
of negligence and gravity in each of the cases here involved
and summarize the reasons given by the parties in support
of the grant of their motion for approval of settlement.
Docket No. WEVA 84-324
MSHA seeks assessment of penalties for two alleged
violations in Docket No. WEVA 84-324. The first violation
was alleged in Citation No. 2272911 which stated that section
75.200 had been violated in the Nos. 2 and 5 entries in 3rd
Right Section because Old Ben had deviated from its roofcontrol plan by not following the sight lines established by
survey spads provided by Old Ben's engineers. MSHA's narrative findings proposed a penalty of $500 after finding that
the violation was serious because i t could have contributed
to a roof fall and that Old Ben was highly negligent for
failure to recognize that the entries had been developed
off center.
The motion for approval of settlement indicates that
Old Ben has agreed to pay a reduced penalty of $150. The
parties have justified the reduction by explaining that the

2272
I

primary hazard associated with. developing entries off center
is that pillar sizes may become dangerously eroded and
thereby leave excessively wide entries with inadequate roof
support~
The actual facts showed, however, that while the
entries had been developed off center, there was no indication of a reduction in pillar size.
In such circumstances·,
MSHA recognized that the alleged violation was not as serious
as it had originally been considered. As a result of MSHA~s
recognition of the nonserious nature of the violation , the
order was modified to a citation issued under section 104(a)
of the Act and the inspector's designation of "significant
and substantial" y was eliminated.
The second violation for which a penalty is sought to
be assessed in Docket No. WEVA 84-324 was cited in Order No.
2143361 which alleged a violation of section 75.703 because
proper frame ground protection was not provided for a scoop
while the batteries were being changed at the charging
station. MSHA proposed a penalty of $650 after finding that
the violation was serious in that it could have contributed
to an electrical shock hazard and that Old Ben was highly
negligent in failing to maintain a proper ground while
batteries were being changed.
The motion for approval of settlement indicates that
Old Ben has agreed to pay a reduced penalty of $500 . The
parties justify a reduction in the proposed penalty by emphasizing that the frame ground was still connected at the time
the order was written. While i t is true that the ground wire
was loose and could eventually have resulted in a shock
hazard, it was still connected and the parties believe that
some reduction of the proposed penalty is warranted in light
of that extenuating fact.
In such circumstances, the Secretary's counsel states that the degree of negligence is reduced which, in turn, supports the parties' agreement to
reduce the penalty to $500.
I find that the parties have given sufficient justification to support a reduction of the penalties proposed in
Docket No. WEVA 84-324.

1/ The citation was originally issued under section 104(d) (1)
of the Act which provides for a finding that the alleged
violation is of such nature that it could significantly and
substantially contribute to the cause and effect of a mine
safety or health hazard. Even after a citation is modified
to show issuance under section 104(a), the inspector may
indicate on the citation whether he considers the violation
to be "significant and substantial". consolidation Coal Co.,
6 FMSHRC 189 (1984).

2273

Docket No. WEVA 85-56
MSHA. seeks assessment of penalties fo~three alleged
violations in Docket No. WEVA 85-56. The f!rst violation
was alleged in Citation No. 2142768 which stated that Old
Ben had violated section 75.1725(a) by failing to maintain
the No. 6 shuttle car in a safe operating condition in that
the reverse accelerator rod was out of adjustment which
caused i t to stick in the reverse direction. The citation
was issued in conjunction with imminent-danger Order No.
214.2766. MSHA proposed a penalty of $5,000 on the basis
of findings that the violation was extremely serious because
one miner was killed when she was pinned against a coal rib
and that Old Ben was highly negligent for failing to have
the shuttle car in safe operating condition.
The motion for approval of settlement indicates that
Old Ben has agreed to pay a reduced penalty of $3,000 and
states that a reduction is warranted because there is
evidence to show that the shuttle car was being greased
at the time of the accident and that the very controls
which were cited as sticking by the inspector had just been
greased prior to the accident and were thought to be in
proper condition. The reason that the shuttle car was
energized was for the purpose of turning the wheels so
that grease fittings could be reached.
The person in
charge of the main~enance work had warned the victim twice
before the shuttle car was energized and she had indicated
that she was "okay". Old Ben takes the position that its
employees were unaware of any defects in the shuttle car's
controls and says that the sticking of the controls . may
have resulted from the panic and haste with which the
pedals were applied when the shuttle car began to move
toward the victim after it was energized.
I find that the motion for approval of settlement provides adequate reasons for the parties' agreement to reduce
the penalty to $3,000. A penalty in that amount is warranted
because the motion indicates that the inspector found the _
accelerator rod to be out of adjustment which may have caused
the controls to stick in the reverse position.
MSHA seeks assessment of a penalty for another alleged
violation of section 75.1725(a) in connection with Citation
No. 2142769 which stated that the No. 7 shuttle car was not
maintained in a safe operating condition because i t also had
a reverse accelerator rod out of adjustment so that the accelerator would stick in reverse direction. MSHA proposed
a penalty of $2,000 based on findings that the violation was
very serious because the shuttle car could have moved when

2274

energized so as to cause injury to another miner. The citation was issued in conjunction with imminent-danger Order
No. 2142767 which was the second order issued with respect
to sticking accelerator rods.
The motion for approval of settlement indicates that
Old Ben has agreed to pay a reduced penalty of $1,500 for
the second alleged violation of section 75.1725(a). The
reduction is based on some of the same points made with
respect to the first alleged violation of section 75.1725(a)
in addition to the pertinent observation that the No. 7
shuttle car, like the No. 6 shuttle car, was in the process
of being serviced so that it is somewhat inappropriate to
charge that Old Ben had failed to maintain the shuttle car in
a safe operating condition while Old Ben's employees were
engaged in the process of bringing the shuttle car into a
safe operating condition.
In -a settlement proceeding, it is not possible to deal
with conflicting points of view because there are no witnesses whose statements may be scrutinized under crossexamination .
In such circumstances , I believe that the
motion for approval of settlement has shown adequate reasons
for reducing the penalty to $1,500.
The third violation for which a penalty is sought to
be assessed in Docket No. WEVA 85- 56 was alleged in Order
No. 2142771 which was issued under section 104(d) (2) of
the Act and which states that Old Ben violated section
75 . 509 by allowing its shuttle cars to be oiled and greased
while they were energized.
MSHA proposed a penalty of
$2,000 based on findings that the practice of working on
energized shuttle cars was well known to management and
that energized cars could move and crush any employee who
might be working on them.
The motion for approval of settlement states that a
reduction in the proposed penalty to $1,100 is warranted
because MSHA ' s narrative findings in the official file conflict with the findings of the inspector who wrote the order
here involved.
The inspector interviewed the witnesses and
he considered the degree of negligence to be moderate and he
believed that any injury that might result from the practice
of oiling and greasing energized equipment would be lost
work days or restricted duty for one employee .
It is obvious that the person who wrote the narrative
findings in the official file was influenced by the ·same
inspector's findings written at the time an employee was
killed when the No. 6 shuttle car was energized so that
oiling and greasing could be completed on it . The area from

2275

which employees were withdrawn by the instant order involves
the No. 6 shuttle car along with three others. Therefore,
it is debatable as to whether the inspector's findings are
more accurate than the narrative findings which served as
the basis for proposing a penalty of $2,000.
On the other hand, i t is a fact that section 75.509
prohibits working on energized equipment "except when necessary for trouble shooting or testing." The motion for approval of settlement states that the No. 6 shuttle car
which killed an employee had been energized for the sole
purpose of turning the wheels so that grease fittings could
be reached.
It would appear that such an energization might
be considered as coming within the exception to the prohibition against working on energized equipment.
If that kind
of temporary energization was the practice about which management had knowledge, then it would seem that a penalty of
$1,100 is adequate because Order No. 2142771 may have cited
a borderline violation which should not be associated with
an excessive penalty. Therefore, I find that a reduction
in the proposed penalty to $1,100 is appropriate.
Docket No. WEVA 85-71
MSHA seeks to have penalties assessed for seven violations in Docket No. WEVA 85-71. The first violation was alleged in Order No. 2145709 which alleged that Old Ben had
violated section 75.1003(c) because an energized 300-volt
DC trolley wire was not guarded where miners had to pass
under it in order to check pumps. Also two carloads of mine
supplies were parked under the unguarded wire which was
about 4 or 5 feet off the mine floor.
MSHA proposed a penalty of $1,000 on the basis of narrative findings to the
effect that the violation was very serious and that Old Ben
was highly negligent in failing to assure that the wire was
guarded.
The motion for approval of settlement states that Old
Ben has agreed to pay a reduced penalty of $800. The only
reason the motion gives for reducing the proposed penalty by
$200 is that Old Ben's negligence was only moderate.
In
connection with the last alleged violation discussed above,
the motion for approval of settlement correctly observed that
MSHA's narrative finding of high negligence was in conflict
with the inspector's finding of moderate negligence.
I found
in that . instance that a conflict between the inspector's
finding and the narrative finding was some indication
that the narrative finding might be in error.
In this instance, however, the inspector also rated Old Ben's negligence
as being high so that there is no conflict between the narrative finding and the inspector's finding as to negligence.

I believe that other reasons exist for reducing the
penalty by $200. Neither t he inspect or's order nor the
narrative findings discuss whether t he mine supplies parked
under the unguarded wire had been loaded while the cars were
parked in that location or whether the supplies were parked
in that location for the purpose of being unloaded or had
been left there only temporarily until they could be transported to another area of the mine. Although the cars were
at a mantrip station, there is no discussion in the order or
the narrative findings as to whether employees were required
to get in and out of mantrips under the place where the
trolley wire was unguarded. Moreover, if loadeq supplies
were parked under the trolley wire , it is unlikely that a
person who was going to check pumps would go to the trouble
of climbing over loaded cars to get to the pumps . The fact
t hat the inspector believed that only one person might be
injured by the unguarded wire is a rather strong indication
that employees did not get in and out of mantr ip cars at the
location where the trolley wire was unguarded . The lack of
information on which to base a finding that the violation
was very serious justifies a reduction of the penalty to
$800 .
The second violation was alleged in Order No. 2145713
which stated that Old Ben had violated section 75 . 200 because loose coal brow·s e xisted along the ribs in an active
haulage and travelway. The size of the coal brows ranged
from 3 to 6 feet in length, 2 to 6 inches in thickness , and
from 24 to 36 inches in height. MSHA proposed a penalty of
$800 on the basis of narrative findings to the effect that
the violation was serious and that it was associated with a
high degree of negligence. The motion for approval of
settlement states that Old Ben has agreed to pay a reduced
penalty of $500 on the basis that the degree of Old Ben ' s
negligence was not as great as the narrative findings indicated .
There is a dearth of information as to whether the coal
brows were of such a nature that Old Ben's section foreman
and preshift examiners could not have avoided seeing the loose
coal brows, as the narrative findings allege. Sometimes
conditions which are obviously hazardous to an inspector are
not perceived in the same way by conscientious section
foremen. Therefore, I believe that the motion has shown an
adequate reason to reduce the proposed penalty to $500.
The . third violation was alleged in Order No . 2145714
which stated that Old Ben had violated section 75 . 603 because
a temporary splice in the trailing cable to a shuttle car
had not been made in a workmanlike manner and was not
mechanically strong and well insulated . MSHA proposed a

227'7

penalty of $600 based on narrative findings to the effect
that the violation was serious and was associated with a
The · motion for approval of
h i gh degree of negligence.
settlement states that Old Ben has agreed to pay a reduced
penalty of $500 and that the reduction has been agreed to by
the parties because the location of the splice was such -- as
to reduce Old Ben ' s negligence sufficiently to warrant a
reduction in the penalty .
I find that the parties have
shown a reason for reducing the penalty by $100.
The fourth vio l ation was alleged in Order No . 2145031
which stated that Old Ben had violated section 75.514 because a splice in a trolley wire was not properly made and
the trolley wire was sagging and out of two hangers. MSHA
proposed a penalty of $750 on the basis of narrative find ings to the effect that the violation was serious and was
associated with a high degree of negligence. The motion
for approval of settlement states that Old Ben has agreed
to pay a reduced penalty of $500 and that the parties have
agreed to the reduction because the nature of the violation
and its location justify a finding that Old Ben ' s degree of
negligence was less than it was found to be in the narrative
findings.
I agree that a reduction in the penalty to $500
is warranted, particularly since the hazard was the possibility of a fire rather than exposure of miners to a possible
shock hazard .
The fifth violation was alleged in Order No. 2145035
which cited Old Ben for a violation of section 75 . 1003 because a trolley feeder wire was not guarded at a place where
miners passed under it at a point near the Foundation Mains
15 stopping. MSHA proposed a penalty of $600 based on
narrative findings to the effect that the violation was
serious because it exposed miners to an electrical shock
hazard and that Old Ben was highly negligent for having
failed to guard the wire. The motion for approval of settlement states that Old Ben has agr eed to pay a reduced penalty
of $500 and the motion supports the reduction in the penalty
by observing that the constantly changing conditions in the
workplace made the degree of Old Ben's negligence, in failing to realize that the trolley wire needed guarding, less
than was indicated in MSHA's narrative findings.
I conclude
that the parties have given a satisfactory reason for reducing the proposed penalty by $100.
The sixth violation was alleged in Order No . 2145036
which stited that Old Ben had violated sect~on 75 . 200 because
the roof had not been properly supported in the third right
013 working section in that spalling had occurred around some
bolts from rib to rib, and some roof bolts measured from 6 to
8 feet from the rib. The lack of proper supports existed

for a distance of about 200 feet. MSHA proposed a penalty
of $1 , 000 based on narrative findings to the effect that the
violation was serious as it could have contributed to a
roof - fall accident and that Ol d Ben was highly negligent in
allowing the roof supports to deteriorate to the extent
found by the inspector.
The motion for approval of settlement indicates that
Old Ben has agreed to pay a reduced penalty of $600 . The
reduction in the proposed penalty is primarily based on
the fact that the inspector on August 1 , 1984, issued a
modification of the order reducing his finding of high negligence to moderate .
The person who wrote the narrative
findings apparently did not take that change in the inspector ' s finding as to negl i gence into consideration in
proposing a penalty of $1,000.
I find that the parties
have shown an adequate reason for reducing the proposed
penalty to $600 .
The seventh violation was cited in Order No . 2145037
which stated that Old Ben had failed to report in the preshift book the existence of bad roof conditions and ventilation deficiencies . MSHA proposed a penalty of $500 based
on narrative findings to the effect that the violation was
serious and was associated with a high degree of negligence .
The motion for approval of settlement indicates that Old Ben
has agreed to pay the proposed penalty of $500 in full .
The proposed penalty is reasonable in the circumstances and
Old Ben's agreement to pay the full proposed penalty is
approved.
Docket No . WEVA 85-78
MSHA seeks to have only one penalty assessed in Docket
No. WEVA 85 - 78.
That penalty was alleged in Order No .
2145712 which cited Old Ben for a violation of section
75.807 because a high- voltage cable had not been placed in
a positi on which would prevent its being accidentally
touched by miners or damaged by mining equipment. MSHA
proposed a penalty of $800 based on narrative findings to
the effect that the violation was serious and was associated
with a high degree of negligence.
The motion for approval of settlement indicates that
Old Ben has agreed to pay a reduced penalty of $500 and the
motion justifies the parties ' agreement to reduce the
penalty on the ground that a high-voltage cable has a great
deal more protection built into its layers of insulation
than low-voltage cable and that Old Ben's negligence in
failing to place the cable where i t would not be accidental ly contacted by a miner was less than the narrative findings

2279

had indicated.
It is also noted that all the protective
layers of insulation were in good condition at the time the
violation was cited.
I find that the parties have given a
satisfactory reason for agreeing to reduce the proposed
penalty to $500.
The motion for approval of settlement (p. 22) contains
a paragraph giving the type of exculpatory language approved
by the Commission in Amax Lead Company of Missouri, 4 FMSHRC_
975 (1982), to the effect that Old Ben has made the agreements
and stipulations set forth in the motion for approval of
settlement only for the purpose of reaching a settlement of
the issues without having to resort to a hearing and that
its agreements in this proceeding are to be used only for
carrying out the purposes of the Federal Mine Safety and
Health Act of 1977.
The Contest Proceeding
The motion for approval of settlement does not refer
to any of the notices of contest which were filed by Old
Ben in this consolidated proceeding. Section lOS(d) of
the Act requires that notices of contest be filed within 30
days after a citation or order is issued. Therefore, notices
of" contest are sometimes filed for protective reasons and are
not always followed by the filing of related penalty proceedings before the Commission because Old Ben may pay penalties
proposed by MSHA pursuant to section lOS(a) of the Act without
such proposed penalties ever becoming the subject of a penalty
case filed before the Commission.
Some of Old Ben's contest cases involve imminent-danger
orders issued under section 107(a) of the Act without citing
violations as a part of the orders .
The inspectors, however,
did issue citations under section 104(a) of the Act, and the
citations referred to the fact that they had been issued in
conjunction with imminent-danger orders. Therefore, while
it may not appear that some of Old Ben 7 s notices of contest
were precisely related to the issues raised in the civil
penalty cases, the dates on which the various orders were
issued and contested by Ol d Ben show that Old Ben filed its
notices o f contest to oppose the issuance of the citations
and orders which have been disposed of in the parties'
settlement agreements discussed in the first part of this
decision approving settlement .
Counsel for Old Ben has advised me that he has no objection to my dismi s s i ng all of the notices of contest
listed in the caption of this decision at the time I issue
my d~cision in this consolidated proceeding.

2280

WHEREFORE, it is ordered:
(A) The motion for approval of settlement filed on
December 18, 1985, is granted and the parties' settlement
agreement is approved.
(B) Pursuant to the parties' settlement agreement, Old
Ben, within 30 days from the date of this decision, shall
pay civil penalties totaling $10,650.00 which are allocated
to the respective alleged violations as follows:
Docket No. WEVA 84-324
Citation No. 2272911 2/21/84 § 75.200 ••••••• $
Order No. 2143361 4/26/84 § 75.703 ••••.•••••

150.00
500.00

Total Settlement Penalties in Docket No.
WEVA 8 4 - 3 2 4 • • • • • .. • • • • • • • • • • • • • • • • • • • • • • • • • $

650.00

Docket No. WEVA 85-56
Citation No. 2142769 4/25/84 § 75.1725(a)
$ 1,500.00
Citation No. 2142768 4/25/84 § 75.1725(a)
3,000.00
Order No. 2142771 4/26/84 § 75.509 ••••.•••••
1,100.00
Total Settlement Penalties in Docket No.
WEVA 85-56 •••.••••••••••••••••••••••••••••

$ 5,600.00

Docket No. WEVA 85-71
Order No .
Order No .
Order No.
Order No .
Order No.
Order No.
Order No .

2145709 5/22/84 § 75.1003(c)
214571 3 5/22/84 § 75.200 .
2 1 45714 5/22/84 § 75.603 .
214503 1 6/1/84 § 75.514
2145035 6/4/84 § 75.1003
2145036 6/4/84 § 75.200 .
2145037 6/4/84 § 75.303 . .

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

I

•

0

••••

$

800.00
500.00
500.00
500.00
500.00
600.00
500.00

Total Settlement Penalties in Docket No.
WEVA 85-71
.
.
.
.

. . . . . . . . . . . . . . . .. . . . . . . . . . . . $ 3,900.00
Docket No. WEVA 85-78

Ord~r

No. 2145712 5/22/84 § 75.807 ••.•..•••. $

500.00

Total Settlement Penalties in Docket No.
WEVA 8 5-7 8

•. . • •• •. ••. ••••. •. . . • •••••. ••• . .

$

500.00

Total Settlement Penalties in This
Proceeding ..•••••.••.•.••••••.•.•••.••••.• $10,650.00

2231

(C)
The 12 notices of contest filed in Docket Nos. WEVA
84-229-R, WEVA 84-230-R, WEVA 84-231-R, WEVA 84-232-R, WEVA
84-269-R, WEVA 84-270-R, WEVA 84-271-R, WEVA 84-272-R, WEVA
84·-273-R, WEVA 84-274-R, WEVA 84-2·75-R, and WEVA 84-276-R
are dismissed.

~C.~"f/1

Richard c. Steff~ ~
Administrative Law Judge

Distribution:
B. K. Taoras, Esq., Old Ben Coal Company, P. o. Box 500, 455
Race Track Road, Meadow Lands, PA 15347 {Certified Mail)
Howard K. Agran, Esq . , Office of the Solicitor, u. S. Department of Labor, Room 14480-Gateway Building, 3535 Ma·rket Street,
Philadelphia, PA 19104 (Certified Mail)

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

November 25, 1985
SOUTHWESTERN PORTLAND CEMENT
COMPANY,
Contestant
GARY PRITCHETT,
Union Representative
and
PETE BARRERAZ,
Union Representative

:

Docket No. CENT 85-71-RM
Citation No. 2235007; 1/10/85

.

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

CONTEST PROCEEDINGS

..

Docket No. CENT 85-81-RM
Order No . 2238401; 4/10/85
Docket No. CENT 85-82-RM
Order No . 2238402; 4/10/85
Odessa Cement Plant

ORDER
Southwestern Portland Cement Company (SPCC) has moved for a
summary decision herein. The Secretary of Labor opposes the
motion. Briefs have been filed by SPCC and the Secretary in
support of their positions.
The facts are these:
CENT 85-71-RM
1 . In this case Citation No . 2235007 was issued under
Section 104(d)(l) of the Act . The citation in its format
indicates that it was issued on January 10, 1985. The body of
the citation itself recites that it was issued on March 21, 1985.
2 o The citation alleges that three miners were exposed to
an undetermined amount of heat and gas while working in the SPCC
mult i clone. It is further alleged that SPCC's actions
constituted an unwarrantable failure to comply with 30 C.F.R.
§ 56ol5-6.

3 . Subsequently, on May 1, 1985, the citation was modified
by formally changing the issuance date from January 10, 1985 to
March 21, 1985. It was further stated in the amendment that "the
violation was believed to have occurred on January 10, 1985." 1;
1/ The facts in this paragraph only appear in CENT 85-119-M, a
penalty case pending before this judge for the alleged violation
of Citation 2235007 .

2283

4. Between March 21 (the date Citation 2235007 was issued)
and May 1 (the date the citation was modified) two contested
withdrawal orders were issued. These contests are now docketed
as CENT 85-81-RM and CENT 85-82-RM.
CENT 85-81-RM
5. In this case SPCC contests MSHA's order number 2238401
issued under Section 104(d)(l) of the Act.
The foregoing order alleges SPCC violated 30 C.F.R.
56.9-40. The order was issued April 10, 1985 after an MSHA
inspector had completed an investigation.

§

The order claims that SPCC's operation of its #183 forklift
constituted an unwarrantable failure by SPCC to comply with the
regulation.
CENT 85-82-RM
6. In this case SPCC contests MSHA's order 2238402 issued
under Section 104(d)(l) of the Act.
The foregoing order alleges SPCC violated 30 C.F.R.
56.14-27. The order was issued on April 10, 1985 after an MSHA
inspector had completed an investigation.

§

The order claims that SPCC's operation of its #183 forklift
<on an occasion other than as alleged in Citation 2238401)
constituted an unwarrantable failure by SPCC to comply with the
cited regulation.
Discussion
SPCC contends that under Section 104(d) of the Act any
violations, in order to be cited and made the subject of
citations and withdrawal orders, must be in existence at the time
of an inspection in order to subject a mine operator to liability
for violations under the Act . SPCC also contends that Section
104(d) differs from Section 104(a) and other provisions of the
Act since Section 104(d) introduces a time factor into the enforcement action.
The Secretary counters claiming that Section 103(g)(l)
plainly provides a right to obtain an immediate inspection after
notice of an allegedly violative condition is received by the
Secretary.
The judge for the purpose of this order has reviewed the
citation and withdrawal orders as well as the affidavits on file.
These indicate that the violative condition were not actually
perceived, observed or otherwise directly detected by the MSHA
inspectors. Further, such violative conditions did not exist at

2234

the time the inspectors visited the worksite. This analysis
rests on the fact that MSHA conducted an after the fact
investigation before issuing the citation and orders. Specifically, Citation 2235007 was issued due to events that allegedly
occurred on January 10, 1985. MSHA investigated these events
when it received a written employee complaint on February 7, 1985.
The two withdrawal orders were issued as the result of an after
the fact MSHA investigation on April 3, 1985.
An overview of the Act is necessary to resolve the issues in
the case.
Section 103(a) of the Act provides: "Authorized representatives of the Secretary •.. shall make frequent inspections and
investigations in ••• mines each year for the purpose of .•• (4)
determining whether there is compliance with the mandatory health
or safety standards
"
Section 103(b) of the Act, speaking only of an "investigation," provides: "For the purpose of making any investigation
of any accident or other occurrence relating to health or safety
in a ••• mine, the Secretary may, after notice, hold public
hearings, •••.
The contrast between the foregoing sections indicates that
Congress saw an investigation as something different from an
inspection.
Of considerable significance, the most used enforcement
tool, Section 104(a), mentions both inspections and investigations. It provides that "if, upon inspection or investigation,
the Secretary ••. believes that an operator -of a .•. mine •.• has
violated this Act, or any .•• standard, ••• he shall, with
reasonable promptness, issue a citation to the operator ••.• The
requirement for the · issuance of a citation with reasonable
promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act."
Section 104(d)(l), in contrast to Section 104(a), relates only
to "inspections," providing that "if, upon any inspection of a .••
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 violation do not cause imminent danger, such violation is
of such nature as can significantly and ·substantially contribute
to the cause and effect of a ••• hazard, and if he finds such
violation to be caused by an unwarrantable failure ••• he shall
include such findings in any citation given to the operator under
this Act."
The second sentence of Section 104(d)(l) provides for the
withdrawal order in the enforcement chain or scheme contemplated
by Congress in this so-called "unwarrantable failure" formula.

2285

Significantly, it provides that "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 violation •.. and finds such violation to be also caused by an unwarrantable failure ••. , he
shall forthwith issue an order requiring the operator to cause
all persons •.. to be withdrawn from ••. such area
"
If the position of the Secretary in this case were adopted,
that is, if withdrawal orders could be issued on the basis of an
investigation of past occurrences, the effect would be to
increase the 90-day period provided for in the second section of
Section 104(d)(l) by the amount of time which passed between the
occurrence of the violative condition described in the order and
the issuance of the order.
Section 104(d)(2) of the Act permits the issuance of a withdrawal order by the Secretary if his authorized representative
"finds upon any subsequent inspection" the existence of
violations similar to those that resulted in the issuance of the
Section 104(d)(l) order.
Summing up, it is clear that nowhere in Section 104(d) is
the issuance of any enforcement documentation sanctioned on the
basis of an investigation. Although Congress did not define the
terms "inspection" or "investigation" specifically in the Act,
there is no question but that Congress in using those terms in
specific ways in prior sections of the Act, and by not using the
term "investigation" in Section 104(d)(l) and (2) indicates the
Congress did so with some premeditation.
Further, an example of the fact that Congress intended the
words to have different meanings is provided by Section 107{b)(l)
- (2) of the Act where Congress lays out an enforcement sequence
whereby , based upon findings made during an 'inspection,' further
'investigation' may be made."
Finally, Section 107(a) of the Act permits the Secretary's
representative to issue a withdrawal order where imminent danger
is found to exist either upon an inspection or investigation.
A review of the various portions of the Act, commencing at
the point where the subject words are first used on through to
the end of such use, indicates that the terms were used with care
and judiciously and with an understanding of the general
connotations contained in their definitions. ~/

£/

Webster's New Collegiate Dictionary, 1979 at 593 and 603
indicates that the primary definition of "inspect" is "to view
closely in critical appraisal: look over." On the other hand,
the primary definition of "investigate" is "to observe or study
by close examination and systematic inquiry."

2286

Commission Judge Richard C. Steffey thoroughly considered
the legislative history of the Act concerning these issues in
Westmoreland Coal Company, WEVA 82-340-R, May 4, 1983. His
views, slightly recast by the writer, are quoted at length herein
because his order {on a motion for a summary decision> is
otherwise unreported. He stated:

wee correctly argues that an order issued under Section

l04(d) should be based on an inspection as opposed to an
investigation. As herein before indicated, the Secretary
argues that Congress has not defined either term to indicate that Congress recognizes that there is a
difference between an 'inspection' as opposed to an 'investigation.' If one wants to examine the legislative
history which preceded the enactment of unwarrantablefailure provisions of the 1977 Act, one must examine the
legislative history which preceded the enactment of
Section 104(c) of the 1969 Act.
The history of the 1969 Act shows that there was a difference in the language of the unwarrantable-failure provisions of s. 2917 as opposed to H.R. 13950. s. 2917,
when reported in the Senate, contained an unwarrantablefailure provision: section 302(c) which read almost word
for word as does the present Section 104(d), H.R. 13950
contained an unwarrantable-failure. Section 104(c),
which provided 'that if an unwarrantable-failure notice
of violation had been issued under Section 104(c)(l), a
reinspection of the mine should be made within 90 days
to determine whether another unwarrantable failure violation existed.
Conference Report No. 91-761. 9lst Congress, lst Session,
stated with respect to the definition in section 3(1) of
H.R. 13950 <page 63):
The definition of 'inspection' as contained in the House
amendment is no longer necessary, since the conference
agreement adopts the language of the Senate bill in
section 104(c} of the Act which provides for findings of
an unwarrantable failure at any time during the same inspection or during any subsequent inspection without regard to when particular inspection begins or ends.
Section 104{c)(l) of H.R. 13950 provided for the findings
of unwarrantable failure to be made in a notice of violation which would be issued under section 104(b).
Section l04{c){l) 's requirement of a reinspection within
90 days to determine if an unwarrantable failure violation still existed explained that the reinspection required within 90 days by section 104(c)(l) was in ad-

2287

dition to the special inspection required under section
104(b) had to determine whether a violation cited under
section l04(b) had been abated. Section 104(c)(l), as
finally enacted, eliminated the confusion about intermixing reinspections with special inspections by simply
providing that an unwarrantable failure order would be
issued under section l04(c)(l) any time that an inspector, during a subsequent inspection, found another
unwarrantable failure violation (Conference Report 917 61 , pp • 6 7-6 8 ) •
The legislative history discussed above shows that Congress thought of an inspection as being the period of
time an inspector would spend to inspect a mine on a
single day because the inspection was to begin when the
inspector entered the mine and end when he left. It
would be contrary to common sense to argue that the inspector might take a large supply of food with him so as
to spend more than a single day in a coal mine at one
time. On the other hand, Congress is very experienced
in making investigations to determine whether certain
types of legislation should be enacted. Congress is well
aware that an investigation, as opposed to an inspection,
is likely to take weeks or months to complete. Therefore, I cannot accept the Secretary's argument that Congress did not intend to distinguish between an "inspection" and an "investigation" when it used those two terms
in section 104(a) and section 107Ca) of the 1977 Act.
It should be noted, for example, that the counterpart of
section 104(a) in the 1977 Act, was section 104(b) in the
1969 Act. Section 104(b) in the 1969 Act provided for
notices of violation to be issued "upon any inspection,'
but section 104(a) in the 1977 Act provides for citations
to be issued 'upon inspection or investigation.' Likewise, the counterpart of imminent-danger section 107(a)
in the 1977 Act was section 104(a) in the 1969 Act. In
the 1969 Act an imminent-danger order was to be written
'upon any inspection,' but when Congress placed the imminent-danger provision of the 1977 Act in section 107(a),
it provided for imminent-danger orders to be issued 'upon any inspection or investigation.' On the other hand,
when the unwarrantable-failure provision of section
104(c) of the 1969 Act was placed in the 1977 Act as
section 104(d), Congress did not change the requirement
that unwarrantable-failure orders were to be issued 'upon
any inspection.'
The legislative history explains why Congress changed
section 104(a) in the 1977 Act to allow a citation to be
issued 'upon inspection or investigation.' Conference
Report No. 95-461, 95th Congress, 1st Session, 47-48,
states that the Senate bill permitted a citation or order
to be issued based upon the inspector's belief that a
violation had occurred, whereas the House amendment required that the notice or order be based on the in-

2288

spector's finding that there was a violation. Additionally , as both the Secretary and wee have noted, Senate
Report No. 95-181 , 95th Congress, 1st Session, 39, explains that an inspector may issue a citation when he
believes a violation has occurred and the report states
that there may be times when a citation will be delayed
because of the complexity of issues raised by the violations, because of a protracted accident investigation
or for other legitimate reasons. For this reason ,
section 104(a) provides that the issuarrce of a c i tation
with reasonable promptness is not a jurisdi ctional :prerequisite to any enforcement action .
The legislative history and the plain language of secti on
107{a) in the 1977 Act explain why that section was
changed so as to insert the provision that an imminent
danger order could be issued upon an ' investigation' as
well as upon an ' inspection . ' Section 107(a) states , in
part, that the issuance of an order under this subsection
shall not preclude the issuance of a citation under
section 104 or the proposing of a penalty under section
110. Both Senate Report No. 95 - 181 , 37, and Conference
Report No. 95- 461, 55 , refer to the preceding quoted
sentence to show that a citation of a violation may be
issued as part of an imminent-danger order . Since
section 104(a) had been modified to provide for a citation to be issued upon an inspector ' s 'belief' that a
violation had occurred , it was necessary to modify
section l07(a) to provide that an imminent- danger order
could be issued upon an inspection or an investigation
so as to make the issuance of a citation as part of an
imminent- danger order conform with the inspector's
authority to issue such citati ons und~r section 104(a).
Despite the language changes between the 1969 and
1977 Acts with respect to the issuance of citations and
imminent-danger orders , Congress did not change a single
word when it transferred the unwarrantable failure
provisions of section 104Cc) of the 1969 Act to the 1977
Act as Section 104{d) . Conference Report No. 95-461 , 48,
specifically states ' the conference substitute conforms
to the House amendment, thus retaining the identical
language of existing law .'
My review of the legislative history convinces me that
Congress did not intend for the unwarrantable failure
provisions of section 104(d) to be based upon lengthy
investigations. Congress did not provide that an
inspector may issue an unwarrantable failure citation o r
order upon a 'belief ' that a violation occurred. Wi thout
exception , every provis i on of section 104(d) specificall y
requires that f i ndings be made by the inspector to

2289

support the issuance of the first citation and all
subsequent orders. The inspector must first., 'upon a~y
inspection' find that a violation has occurred. T·hen he
must find that the violation could signi.ficantly a:nd
substantially contribute to the cause an'd eff·e c·t of a
coal or other mine safety or health hazard. He must then
find that such violation is caused by an u·nwar.rantabl.e
failure of such operator to comply with such manda.t ory
health or safety standard. He thereaf.t er mu·s t place
those findings in the citation to be g~ven to the
operator. If during that same inspection any subsequent inspection, he finds another violation .o f any
mandatory health or safety standard and finds .such violation to be caused by an unwarrantable failure of such
to so comply, he shall forthwith issue an order requi:r·e ing the operator to cause all persons in the area affected by such violation to be withdrawn and be prohibited from entering such area until the inspector determines
that such violation has been abated.
After a withdrawal order has been issued under subsection
104(d}(l), a further withdrawal order is required to be
issued promptly under subsection 104(d)(2) if an
inspector finds upon any subsequent inspection tha.t .an
additional unwarrantable-failure violation exists until
such time as an inspection of such mine which discl:oses
no unwarrantable-failure violations, the operator is
liberated from the unwarrantable-failure chain. Conference Report No. 95-181, 34, states that 'both Sections
104(d)(l) and 104(e) require an inspection of the mine in
its entirety in order to break the sequence of the
issuance of orders. (Emphasis added.)
I agree with Judge Steffey and I conclude that the Act does
not permit a section 104(d) order to be based on an investigation.
But rather the order must be based on and it must have been a
product of an inspection of the site. Section 104(d) provides
that an order may be issued only if, upon an inspection of the
mine, the Secretary finds a violation of a safety or health
standard. Where an inspector does not inspect the site but only
learns of the alleged violation from the statements of miners a
section 104<d> order may not be issued.
As previously noted, when it intended to permit MSHA
enforcement actions to proceed on the basis of an inspection or
an investigation, Congress so provided. The section 104(d)
requirement of an inspection cannot be dismissed as mere semantic
inadvertence on the part of Congress.
Section 104Cd) sets forth the sanctions that may be imposed
against an ' operator under the specific conditions discussed in
that section. If follows that the inspector authorized on a
miner's complaint by section 103(g)(l) cannot reduce the
safeguards Congress intended to provide in section 104(d). The
Secretary's reliance on section 103(g)(l) is, accordingly,
rejected.

2290

As previously noted the citation and orders in contest here
all indicate on their face that they were issued as a result of
MSHA investigations.
Accordingly, I find that Citation 2235007 and Withdrawal
Orders 2238401 and 2238404 were improvidently issued pursuant to
section 104(d) of the Act.
However, such a conclusion does not mandate that the citation
and orders in contes t here should be vacated. The Commission has
thoroughly explored the procedural propriety of a judge modifying
an invalid 104(d) order. Consolidation Coal Company, 4 FMSHRC
1791 (1982); United States Steel Corporation, 6 FMSHRC 1908
(1984). The rationale as expressed in Consolidation Coal Company
follows:
We first consider the question of modification from a
general perspective . Sections 104(h) and 105(d) of the
Mine Act expressly authorize the Commission to "modify"
any "orders" issued under section 104. This power is
conferred in broad terms and we conclude that it extends,
under appropriate circumstances, to modification of 104
(d)(l) withdrawal orders to 104(d)(l) citations. In this
case, and in future ones raising similar issues, we will
define such "appropriate circumstances." Where, as here,
the withdrawal order issued by the Secretary contains
the special findings set forth in section 104(d}(l), but
a valid underlying 104(d}(l) citation is found not to
exist, an absolute vacation of the order, as urged by
the operator, would allow the kind of serious violation
encompassed by section 104(d) to fall outside of the
statutory sanction expressly designed for it--the 104
( d > sequence of citations and orders. · The result would
be that an operator who would otherwise be placed in the
104(d) chain would escape because of the sequencing of
citations and orders . Such a result would frustrate
section 104(d) ' s graduated scheme of sanctions for more
serious violations.
Consolidation Coal Company , specifically addresses the issue of
whether l04(d) orders survive as alleged 104(a) violations. On
this point the Commission stated 4 FMSHRC at 1794 (Footnote 9):
Modification under such circumstances is also consistent
with our settled precedent . We held in Island Creek Coal
co. , 2 FMSHRC 279, 280 (February 1980), that allegation~
of a violation survived the Secretary's vacation of the
104(d)(l) withdrawal order in which they were contained
and, if proven at a subsequent hearing, would have required assessment of a penalty. We reached a similar result in a companion case in which we held that
allegations of violation also survived Secretarial

2281

vacation of an invalid 107(a) order (imminent danger).
Van Mulvehill Coal Co., Inc., 2 FMSHRC 283, 284 (February
1980). In both cases, we thus contemplated future trial
of the allegations as possible 104(a) violations.
(Neither of the vacated withdrawal orders had contained
significant and substantial findings.)
If less serious
allegations of l04Ca> violations survive, then, a
fortiori, the more serious allegations in the present
type of case should survive as potential 104(d)(l)
violations. In short, the purport of our decisions is
that such allegations survive, and modification is merely
the appropriate means of assuring that they do.
For the foregoing reasons I conclude that SPCC's motion
should only be granted in part. A total summary decision is
denied because the pleadings herein indicate that a factual
dispute remains as to the validity of the modified citation and
orders. If, after a hearing, the evidence fails to show that the
violations occurred then the citations will be vacated.
In summary, I conclude that the 104(d) citation and two
104(d) withdrawals orders are invalid because the alleged
violative condition was not in existence during the period of the
inspection. Further, the violations were not actually perceived,
observed or otherwise directly detected by a duly authorized
representative of the Secretary. r further conclude that
Commission precedent requires that the 104(d) allegations should
be modified to allegations of violations under Section 104(a) of
the Act.
Accordingly, pursuant to Section 105(d) of the Act, I enter
the following:
ORDER
1. Citation No. 2235007 alleging a violation of 30 C.P.R.
56.15-6, docketed as case No . CENT 85-71-RM and issued under
section 104(d)(l) of the Act is modified to reflect its issuance
under section 104(a) of the Act.
§

2 . Withdrawal Order 2238401 alleging a violation of 30
C.F.R. § 56.9-40, docketed as case No. CENT 85-81-RM and issued
under section 104Cd)(l) of the Act is modified to reflect its
issuance under section 104(a} of the Act.
3. Withdrawal Order 2238402 alleging a violation of 30
C.P.R. § 56.14-27, docketed as case No. CENT 85-82-RM, and issued
under section 104(d)(l) of the Act is modified to reflect its
issuance under section 104(a) of the Act.
of law not

Law Judge

2292

Distribution:
Heidi Weintraub, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Michael T. Heenan, Esq., Smith, Heenan & Althen, 1110 Vermont
Avenue, N.W., Washington, D.C. 20005
Mr. Gary Pritchett, Miner's Representative, Local D-476, United
Cement, Lime & Gypsum Workers International Union, P.O. Box 1547,
Odessa, TX 79760
Mr. Pete Barreraz, Rt. 14, Box 1679, Odessa, TX 79764
/blc

-s:ru.S. GOVERNM~N"T PRINTING OFFiCE: 1 9 S 6-4 9 1-2.2 3 ~It 7 0 5 1

2293