APRIL 1984
Connnission Decisions
4-06-84
4-20-84
4-24-84

Green Hill Mining Company
Jack Gravely v. Ranger Fuel Corp.
Turner Brothers, Inc.

KENT 83-251
WEVA 83-101-D
CENT 83-12

Pg. 796
Pg. 799
Pg. 805

VA
83-26
WEST 81-172-M
WEVA 83-244
WEST 81-339-M
WEST 81-399-M
WEVA 81-36-R
CENT 81-13-D
WEVA 83-241-D
LAKE 84-19-R
CENT 79-91-RM
LAKE 84-30
WEVA 83-266-R
KENT 83-86
YORK 83-7-DM
WEST 84-40-R
PENN 83-198
WEST 81-261-M
SE
80-31-DM
SE
84-4-M
WEST 83-72-D
WEST 81-264-RM
WEVA 82-390-R

Pg. 809
Pg. 852
Pg. 864
Pg. 865
Pg. 870
Pg. 874
Pg. 917
Pg. 919
Pg. 921
Pg. 929
Pg. 936
Pg. 939
Pg. 942
Pg. 998
Pg. 1004
Pg. 1011
Pg. 1045
Pg. 1050
Pg. 1052
Pg. 1059
Pg. 1068
Pg. 1071

Administrative Law Judge Decisions
4-04-84
4-06-84
4-06-84
4-10-84
4-10-84
4-11-84
4-12-84
4-12-84
4-13-84
4-17-84
4-19-84
4-19-84
. 4-20-84
4-20-84
4-23-84
4-23-84
4-24-84
4-26-84
4-26-84
4-26-84
4-27-84
4-30-84

Mineral Coal Sales, Inc.
Claude C. Wood Company
Westmoreland Coal Company
Rockline, Incorporated
Magma Copper Company
Badger Coal Company
MSHA/Milton Bailey v. Arkansas-Carbona Co.
MSHA/James Mc. Taylor v. Buck Garden Coal Co.
Monterey Coal Company
Todilto Exploration & Development Corp.
Monterey Coal Company
Westmoreland Coal Company
Peabody Coal Company
Forrie Everett v. Industrial Garnet Extractives
United States Fuel Company
Bethlehem Mines Corporation
Superior Rock Products
Metric Constructors, Inc.
Belcher Mine, Inc.
George Jack v. Mid-Continent Resources, Inc.
FMC Corporation
U.S. Steel Mining Company

APRIL
The following cases were Directed for Review during the month of April:
Secretary of Labor, MSHA v. Monterey Coal Company, Docket No. LAKE 83-61;
(Judge Koutras, February 23, 1984)
Secretary of Labor, MSHA v. Green Hill Mining Company, Docket No.
KENT 83-251; (Judge Merlin, Default Order, February 27, 1984)
Review was Denied in the following cases during the month of April:
Elias Moses v. Whitley Development Corporation, Docket No. KENT 79-366-D;
(Judge Steffey, March 13, 19.84)
Secretary of Labor, MSHA v. Peabody Coal Company, Docket No. WEST 83-73;
(Judge Morris, March 6, 1984; PDR dismissed as premature)

COMMISSION DECISIONS

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

April 6, 1984
SECRETARY OF LABOR, MINE SAFETY
AND HEALTH ADMINISTRATION (MSHA)
Docket No. KENT 83-251

v.
GREEN HILL MINING CO., INC.

DIRECTION FOR REVIEW AND ORDER
The document titled "Notice" filed by the respondent operator on March 7,
1984, is deemed to be a petition for discretionary review and is granted.
30 U.S.C. 823(d)(l976 & Supp. V 1981).
The controversy arises under the Federal Mine Safety and Health Act of
1977. 30 U.S.C. 801 et~· Following an inspection of the operator's
mine, the Mine Safety and Health Administration (MSHA) of the Department
of Labor issued four citations alleging violations of 30 C.F.R. sections
77.410, 77.1000, 77.1102 and 77.1109. Subsequently, MSHA issued a notification of the penalties it proposed for those citations, totalling $134.00.
Respondent contested and the matter came before this independent Commission
for adjudication. Thereafter, the Secretary of Labor filed a proposal of
penalty in the total amount of $134.00 with the Commission.
The Rules of Procedure of this Comµdssion require respondent to file an
answer to the Secretary's proposal of penalty within 30 days. 29 C.F.R.
§ 2700.28. When no answer was received within 30 days, the Commission's
Chief Administrative Law Judge issued an Order to Show Cause to respondent
on September 28, 1983, explaining the requirement for an answer and allowing
30 additional days to file the answer or show good reason for failure to do
so. The Chief Judge gave notice that failure to respond to the Order to Show
Cause would result in a default judgment. Receiving no response to the Order
to Show Cause, the Chief Judge entered an Order of Default on February 27, 1984,
requiring respondent to pay the sum of $134.00 immediately.
The operator seeks review of the default order and requests that it
be amended to reflect a settlement. The operator represents that it paid to
MSHA the penalty of $134.00 on or about August 10, 1983, since it did not care
to pursue the matter further. In response to the operator's petition for discretionary review, the Secretary objects to the operator's request for relief,
noting that the Secretary did not discuss or agree to settlement at any time.
He notes that the respondent's "unsolicited check" was forwarded by the Regional
Solicitor's office in Tennessee to MSHA for deposit pending resolution of the
case in keeping with the policy of the Department of Labor. The respondent's
submission includes a cop~ of the negotiated check.

79G

As noted above, this Commission is independent of the Department of Labor
and MSHA. When he issued his Order to Show Cause, the Chief Judge of the
Commission was not aware of the payment by the operator to MSHA of the full
amount of the penalties. Because the operator did not respond to the Order
to Show Cause, the Chief Judge was unaware also of that payment when he issued
his Order of Default. Under these circumstances we find the Order of Default
entered by the judge and his assessment of a total penalty of $134.00 to be
appropriate. We note, however, that the operator already has complied with
the Chief Judge's order to pay the amount of $134.00, which is the precise
amount that the Department of Labor proposed for the cited violations.
Accordingly, the Order of Default issued by the Chief Judge on February 27,
1984, is affirmed.

L. Clair Nelson, Commissioner

-Distribution
DaviJ 0. Smith, Esq.
Green Hill Mining Company
P.O. Box 699
Corbin, Kentucky 40701
Thomas A. Grooms, Esq.
Office of the Solicitor
U.S. Department of Labor
280 U.S. Courthouse
801 BroaJway
Nashville, Tennessee 37203
Michael McCorJ, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson BlvJ.
Arlington, Virginia 22203
Chief AJministrative Law JuJge Paul Merlin
FeJeral Mine Safety & Health Review Commission
1730 K Street, N.W.
Washington, D.C. 20006

79&

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

April 20, 1984
JACK E. GRAVELY

v.

Docket No. WEVA 83-101-D

RANGER FUEL CORP.
DECISION
This case is before us on Jack Gravely's petition for discretionary review of an administrative law judge's decision which dismissed his discrimination complaint against Ranger Fuel Corporation. 6 FMSHRC 38 (1984).
Gravely contends that Ranger illegally
discharged him from his position as foreman at the Beckley No. 2
mine, in violation of Section 105(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 115(c) (Supp. V, 1981), because it
blamed him for a roof fall which occurred on his shift. According
to Gravely, Ranger discharged him in retaliation for his failure to
take a crew inby a dangerboard to support the area of weak roof
which later fell. Ranger argued that it had not discharged Gravely
because of the roof fall. It claimed that Gravely's performance
over the prior several months had been consistently unsatisfactory,
and that it had discharged him following two incidents within one
week in which his inadequate supervision had resulted in the destruction of suction pumps. Ranger's position was that it had no
objections to Gravely's actions on the night of the roof fall, when
he had his crew begin roof support work at the dangerboard, and
that its officials blamed him for the roof fall only because of
his failure to properly support the weak roof on a prior shift.
We granted review because we perceived certain deficiencies in
the judge's analysis of this case. ~/ Review of the record
discloses substantial evidence to support the judge's crucial
factual findings. Applying the analytical framework we have established for discrimination cases to the facts at issue here, we
affirm the judge's dismissal of Gravely's complaint,

1 I

Ranger filed in opposition to Gravely's petition for discretionary review, alleging in part that the petition was not timely
filed. Section 113(d){2)(A)(i) of the Mine Act requires that petitions for discretionary review be filed within 30 days after issuance of a judge's decision. 30 U.S.C. § 823(d)(2)(A)(i). The 30th
day following issuance of the judge's decision in this case fell on
(footnote continued on next page)

799

At the time of his discharge, Gravely had been employed by
Ranger for almost 18 months. During this time he held a number of
different supervisory assignments. The mine manager testified that
these changes occurred because of problems with Gravely's performance
in each job, and Ranger's continuing efforts to find a position for
which he was suited.
Ranger provided several examples of Gravely's poor performance
and disciplinary record, including instances of excessive or unexcused absenteeism and inadequate supervision of his crew, resulting
in off center cuts and destruction of equipment. Gravely disputed
the occurrence of some of these examples, denied that he had been
disciplined for others, and claimed that some were not his fault.
During the last week of July 1982, while Gravely was working
as a construction foreman on the night (hoot owl) shift, an area of
"bad top" was encountered in the last open crosscut between the No.
1 and No. 2 entries of the No. 1 face. Harrison Blankenship, the
assistant mine foreman (who worked on the day shift), testified
that on July 26 he left instructions and a sketch with the evening
shift foreman, Larry Burgess, telling Burgess to instruct Gravely
to set "turn cribs" in the No. 1 entry intersection. "Turn cribs"
are roof support cribs placed in an arc configuration to narrow the
intersection and prevent a roof fall. Burgess testified that when
he attempted to pass these instructions on to Gravely, Gravely told
him that he already knew what to do.

Footnote No. 1 Cont'd.
a Sunday. The petition was received, and therefore filed (29
C.F.R. §2700.70(a)), on the 31st day following the issuance of the
judge's decision. We have previously held that, in appropriate
circumstances, petitions received after the 30th day (but before
the 40th day when decisions become final orders of the Commission
by operation of law) can nevertheless be accepted and considered by
the Commission. Valley Rock & Sand Corp., 2 BNA HSHC 1673 (Docket
No. WEST 80-3-M, e.tc., March 29, 1982); Victor McCoy v. Crescent
Coal Co., 2 FMSHRC 1202 (1980). See Duval Corp. v. Donovan, 650
F.2d 1051 (9th Cir. 1981). We hereby hold that where the 30th day
following the issuance of a judge's decision falls on a Saturday,
Sunday, or Federal Holiday, good cause exists for accepting a petition for review received by the Commission on the first business
day thereafter. This policy does not significantly lessen the time
available to the Commission for considering petitions for review
and also avoids unnecessarily shortening the time available to parties for determining whether to file or for preparing a petition
for review. Accordingly, the operator's request that the petition
be dismissed because it was received 31 days after the issuance of
the judge's decision is denied.

800

Gravely denied receiving any specific instructions from Burgess or Blankenship before his July 27 shift. ·He testified that
when he reached the section and his crew independently discovered
the bad top, he notified shift foreman Dennis Myers of the condition, and he and his crew spent the rest of the shift attempting to
support the roof. They did not set "turn cribs" as Blankenship
said he had ordered, but "breaker cribs" extending across the No. 1
entry, immediately outby the crosscut. During the shift, one of
the miners on Gravely's crew ran over and destroyed a submersible
suction pump valued at $2500 to $3000.
The next morning Blankenship discovered that the cribs had not
been set the way he wanted. He testified that the use of the breaker
cribs would cause a roof fall in the intersection and crosscut, and
turn cribs could prevent one. He did not believe the roof was in
immediate danger of falling, so he again left instructions for the
setting of turn cribs. Although the No. 1 entry was now blocked
off by the breaker cribs that had been put up the night before, the
intersection was still accessible through the crosscut from the No.
2 entry. Sometime that day, however, the roof in the crosscut
began to work, and somebody (none of the witnesses knew who) placed
a dangerboard in the No. 2 entry outby the crosscut. When Gravely
and his crew began work on July 28, they began shoring up the roof
at the dangerboard, and moving toward the crosscut. Before they
reached it, however, the roof fell in the crosscut.
On July 29 and 30, Gravely's crew worked on cleaning up the
roof fall. On July 30, another miner on the crew ran over a second
suction pump in the same mud hole as the one that had been destroyed earlier in the week. Although at first it appeared that the
second pump had also been destroyed, it later was repaired at a
cost of $854. The next morning Blankenship discussed the pump
incidents with mine manager Walter Crickmer, and he and Crickmer
agreed that Gravely should be fired. Both men testified that the
discharge was motivated primarily by the fact that Gravely had
allowed the destruction of two pumps within a week, but that Gravely' s prior unsatisfactory work history also played a part in their
decision. Although they denied that the roof fall alone was the
motivating factor, Blankenship maintained that the fall had been
caused by Gravely's failure to set turn cribs on July 27, and said
that it was part of the chain of events "that led to the discharge."
In his decision, the judge found that Gravely had a history of
disciplinary problems throughout his tenure at Ranger. Although he
acknowledged that Ranger's poor recordkeeping practices caused it
problems in documenting its assertions, he stated that he found the
testimony of the three Ranger management employees who testified
about Gravely's poor disciplinary record to be believable. He
stated that he was unable to conclude that Ranger had fabricated
the specific examples of Gravely's disciplinary problems as an

801

"after the fact" justification for his discharge. The judge concluded that the record showed that Ranger discharged Gravely "aftei.
a series of incidents which finally convinced mine management that
Mr. Gravely should not continue on as a foreman." 6 FMSHRC at 89.
The judge additionally found that Gra~ely' s failure to take
his crew inby a dangerboard on July 28, two days before his discharge, was not a motive for the discharge. Relying on testimony
of both management employees and the miners on Gravely's crew, the
judge found that there was no expectation by Ranger that Gravely
take the crew ~nby the dangerboard, and that Gravely's belief that
he had been expected to do so stennned entirely from the fact that
Gravely believed that assistant mine foreman Harrison Blankenship
blamed him for the roof fall. However, the judge concluded that
Blankenship's opinion that Gravely was responsible for the roof
fall was not based on Gravely' s failure to support the roof on
the night of July 28, as Gravely claimed, but on what Blankenship
perceived as Gravely's failure to follow his instructions for
supporting the roof on July 27.
Although there was conflicting testimony about the specific
instructions that Gravely had received on July 27, there is clearly
substantial evidence in the record to support the judge's finding,
based in part on specific credibility determinations, that Blankenship believed that Gravely had failed to follow his instructions on
that shift. Therefore, it is apparent that to the extent that
Gravely's contribution to the roof fall was one of the bases for
his discharge, that contribution was not the alleged protected
activity of refusing to work inby the dangerboard, but rather was
the failure to properly support the roof on July 27.
Under the analytical guidelines we established in Secretary on
behalf of Pasula v. Consolidation Coal Corp., 2 FMSHRC 2786
(1980), rev'd on other grounds sub nom. 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., _U.S._, 76 L.Ed. 2d 667 (1983). See also Boich Vo
FMSHRC, 719 F.2d. 194 (6th Cir. 1983) (specifically approving the
Commission's Pasula-Robinette test).
The judge in this case did not expressly determine whether
Gravely's refusal to take his crew inby the dangerboard on July 28
was protected activity under the Mine Act. However, he clearly
found that the refusal was not a motivating factor in Gravely's

802

subsequent discharge, Ranger having rebutted Gravely's arguments to
the contrary. Substantial evidence supports the judge's finding.
Given these facts, Gravely failed to establish a prima facie case
under our Fasula analysis. Because no prima facie case was established, it was not necessarily required that the judge reach the
second stage of our discrimination analysis and determine whether
Ranger proved an affirmative defense.
In this case, the judge did not separately discuss Ranger's
assertion that it fired Gravely because of the destruction of
two suction pumps within a week by miners under his supervision.
It is not clear from the decision whether the judge's failure to
address this issue separately was based on his belief that the
evidence had been introduced to establish Ranger's affirmative
defense or on his determination that the destruction of the pumps
was part of the "series of incidents" which he held led to Gravely' s discharge. However, we believe that the decision can be sustained in either event. The burden was on Gravely, as the complainant, to establish that his discharge was motivated, at least
in part, by protected activity. Because he failed to meet that
burden, a separate determination of the validity of any other
asserted reason for the discharge was not necessary to the judge's
holding. Furthermore, even if Gravely had established a prima
facie case, we believe that Ranger's evidence demonstrated that it
would have discharged him in any event because of the destruction
of the pumps.
Therefore, we affirm the judge's order dismissing Gravely's
complaint, on the basis that there is substantial evidence in the
record to support the judge's factual findings which do not establish
a prima facie case of discrimination.

~odtr~r::

'---/

_/__

~-

.

r:: Clair Nelson, Commissioner

803

Distribution
Belinda Morton, Esq.
Box 636
Fayetteville, West Virginia

25840

W. H. File, Jr., Esq.
File, Payne, S~herer & Brown
P.O. Drawer L
Beckley, West Virginia 25801
Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
520.3 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

804

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

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

.

April 24, 1984
Docket No. CENT 83-12

v.
TURNER BROTHERS INC.
DECISION
The operator's petition for discretionary review of the administrative
law judge's decision in this matter was granted on December 29, 1983.
30 U.S.C. § 823(d)(2)(Supp. V 1981). The operator's petition raised two
issues: whether a Commission administrative law judge has the authority to
assess a penalty greater than that proposed by the Secretary of Labor, 1/
and whether a Commission administrative law judge has the authority to assess additional penalties based on a perceived "cavalier attitude" and
"contempt" that the operator and its counsel displayed in the litigation
of the matter before the administrative law judge. These latter conclusions
by the judge were based on the respondent's failure to appear at the
scheduled hearing or otherwise notify the judge of its intention not to
appear. ];./
Pursuant to the Commission's Rules of Procedure, the failure to file a
brief in support of a petition for review that has been granted can result
in dismissal of the proceeding. 29 C.F.R. § 2700.8(b) and .72(a). Because
the operator failed to file a timely brief, the Commission issued an order
advising the operator of the possible effect of its failure to comply with
the Commission's rules, and specifically ordering the operator to submit
its brief and a motion for leave to file the brief out of time with an
explanation for the delay. The operator's response to the Commission's
order was to submit a "brief." 3/ Contrary to the Commission's order, a
motion to accept the late-filed-brief was not filed.

1_/

It is well established that, in a case contested before the Commission,
the Commission and its judges are not bound by the penalty assessment
regulations adopted by the Secretary. "The determination of the amount
of the penalty that should be assessed for a particular violation is an
exercise of discretion by the trier of fact." Sellersburg Stone Co.,
5 FMSHRC 287 (March 1983), ~· for review filed, No. 83-1630 (7th Cir.
April 8, 1983).
2/
The judge noted that the operator's counsel had also failed to appear
at another hearing before a different Commission judge one week prior to
the hearing set in this case.
1_/
The operator's submission was a four paragraph, one and one-half page
restatement of its petition for review.

805

Due to the operator's failure to comply with the Commission's rules
and orders, and consequent failure to prosecute this matter, the operator's
petition for discretionary review is dismissed in part. Because the
second issue.raised in the petition relates to a matter which is "contrary
to law or Commission policy," 30 U.S.C. § 823(d)(2)(B)(Supp. V 1981), and
for which we have an independent concern, we have retained jurisdiction
in part.
The judge's decision contains an assessment of a total of $600 in
additional penalties based on the "cavalier attitude" and "contempt" that
the operator and its counsel displayed towards the Mine Act, the Department
of Labor's Mine Safety and Health Administration inspectors, and the
Commission. While we may well empathize with the judge's reaction, the
proper recourse available to the judge in this situation would be that
set forth in Commission Rule 80, governing the standards of conduct for
individuals practicing before the Commission, and providing for the
institution of disciplinary proceedings in appropriate circumstances.
29 C.F.R. § 2700.80. The need to scrupulously follow the Commission's
rules on disciplinary procedures previously has been stressed by the
Commission. Secretary of Labor ex rel. Roy A. Jones v. James Oliver &
Wayne Seal, FMSHRC Docket No. NORT 78-415, March 27, 1979; Canterbury
Coal Co., 1 FMSHRC 335 (May 1979). Due to the limitations set forth in
the Act as to the criteria to be applied in assessing penalties, as well
as the need for faithful adherence to the Commission's Rules, we vacate
that portion of the judge's decision assessing six additional penalties
of $100 per violation due to the attitude of the operator and its counsel.
Our decision today does not foreclose the institution of proceedings by
the judge below under section 2700.80 if he is of the view that this is
appropriate.
Accordingly, we dismiss for lack of prosecution the operator's appeal
challenging the judge's assessment of penalties totalling $5,100 based on
the statutory criteria specified in section llO(i). The judge's decision
stands as the final order of the Commission in this regard. The portion
of the judge's decision assessing a total of $600 in penalties for the
"cavalier attitude" displayed by the operator and its counsel is vacated.

';···fl!{_.-1..__,,- l,- '/.. .•-r'.
L. Clair Nelson, Commissioner

80. ti
.~

Distribution
Robert J. Petrick, Esq.
Turner Brothers, Inc.
P.O. Box 447
Muskogee, Oklahoma 74401
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Charles C. Moore
Federal Mine Safety & Health Review Connnission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

807

ADMINISTRATIVE LAW JUDGE DECISIONS

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

APR 4 1984

CIVIL PENALTY PROCEEDINGS

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

Docket No. VA 83-26
A.C. No. 44-05226-03501

v.

Docket No. VA 83-36
A.C. No. 44-05226-03503

MINERAL COAL SALES, INC.,
Respondent

Docket No. VA 83-39
A.C. No. 44-05226-03502
Docket No. VA 83-44
A.C. No. 44-05226-03504
Mineral Siding
DECISIONS

Appearances:

James B. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Bobbie S. Slusher, President, Mineral Coal Sales,
Inc., Norton, Virginia, pro~, for Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern civil penalty proposals filed
by the petitioner against the respondent pursuant to section
llO(a) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. 820(a), seeking civil penalty assessments for four
alleged violations of certain mandatory standards promulgated
pursuant to the Act. Respondent contested the proposed
assessments, and the cases were heard in Wise, Virginia, on
November 22, 1983. The parties were afforded an opportunity
to file post-hearing proposed findings and conclusions, and
the arguments presented therein have been carefully considered
by me in the course of these decisions.
Issues
A critical issue raised by the respondent in these
proceedings is one of jurisdiction. In its answer to the

809

proposals for assessment of civil penalties, the respondent
asserted that its Mineral Siding facility is not a "mine"
within the meaning of the Act.
In a motion filed by the
respondent seeking dismissal of these cases for lack of
jurisdiction, the respondent again asserts that its facility
is not a "mine" within the meaning of the Act. Relying
on the Commission's decision in Secretary of Labor v. Oliver M. Elam,
Jr., Company, Inc., 2 MSHC 1572 (1981), the respondent contends
as follows:
(1) Respondent is the owner and operator of a
commercial loading facility on the N&W-Southern
Railway which loads coal onto rail cars.
(2) Respondent's customers are coal brokers
who pay it to load coal onto the rail cars.
(3) The brokers arrange for delivery o~ the
coal by truck to the facility, and then
for delivery by rail car to their customers.
(4) The facilities for loading coal consist
of a hopper, a crusher, conveyor belts, and
a front-end loader.
(5) Respondent does not purchase and market
the coal that it loads, but rather acts as a
third-party which merely loads coal for
transportation to customers from disinterested
brokers.
(6) Respondent crushes the coal to facilitate
its loading business.
Assuming that the respondent is subject to the Act, the
next question presented is (1) whether respondent has violated
the provisions of the Act and implementing regulations as
alleged in the proposals for assessment of civil penalties
filed, and, if so, (2) the appropriate civil penalties that
should be assessed against the respondent for the alleged
violations based upon· the criteria set forth in section llO(i)
of the Act.
In determining the amount of any civil penalty assessments,
section llO(i) of the Act requires consideration of the following
criteria:
(1) the operator's history of previous violations,
(2) th.e appropriateness of such penal ties to the size of the
business of the operator, (3) whether the operator was negligent,
(4) the effect on tne operator's ability to continue in business,

810

(5) the gravity of the violations, and (6) the demonstrated
good faith of the operator in attempting to achieve rapid
compliance after notification of the violations.
Discussion
The citations which are in issue in these proceedings
are as follows:
Docket No. VA 83-26
Section 104(a) Citation No. 2039607, issued on December 28,
1982, cites an alleged violation of 30 CFR 50.30, and the condition
or practice is stated as follows:
The operator of this active mine has not
submitted a quarterly employment report
for the 3rd quarter of 1982 (July-Sept.).
This mine re-opened 07-01-82 .

•

Docket No. VA 83-36
Section 104(a) Citation No. 2153470, issued on March 1, 1983,
cites an alleged violation of mandatory health standard 30 CFR
71.803, and the condition or practice is stated as follows:
A periodic noise exposure survey for the
last 6 months has not been submitted to MSHA
at Norton, Virginia. There are 2 employees
to be surveyed at this active mine.
Docket No. VA 83-39
Section 104(a) Citation No. 2039612, issued on January 17,
1983, cites an alleged violation of 30 CFR 50.30.
The described
condition or practice is as follows:
The employment reports filed for the 3rd and
4th quarters of 1982 were inaccurate in that
each report showed "none" for the average
number of workers and "none" for the total
number of employee-hours worked.
The onshift record book showed the mine operated
during each month of each quarter reported for.
Docket No. VA 83-44
Section 104(a) Citation No. 2153469, issued on March 1, 1983,
cites an -alleged violation of 30 CFR 77.1705, and the condition
or practice is as follows:

Bll

The superintendent Donald P. Slusher has
not attended a first aid refresher class in
the last calender year. The last training was
on 05-23-1981.
Petitioner's Testimony and Evidence
Donald R. Saylers, Supervisory Inspector, ~SHA Norton,
Virginia, Subdistrict Office, testified as to his background
and experience, and he confirmed that he supervises nine
inspectors in the performance of their inspection duties.
He identified Hobert Bentley as the inspector who issued
the citations at issue in this case, and he confirmed that
Mr. Bentley is deceased.
Mr. Saylers confirmed that he was familiar with the
citations issued by Mr. Bentley, and that he reviewed and
discussed them with him prior to his death.
He also confirmed
that he was familiar with Mrs. Slusher's loading facility,
and he stated that she operated the Clifton ~ining surface
mine sometime during 1974 to 1976, and changed its name to
Mineral Developers sometime during the period 1976 to 1979.
At the time she started the facility, Mineral Developers
was stripping coal, and after mining ceased at the facility,
the surface facility continued on and was known as Mineral
Siding (Tr. 30-34).
Mr. Saylers identified Exhibits P-1, P-2, and P-3 as
MSHA Legal Identity reports on file in his office for the
facility in question. With regard to Exhibit P-3, showing
a transfer of the site on July 1, 1982, from Summit Resources
back to Mineral Coal Sales, Mr. Saylers explained that
Summit Resources was under a Federal court order to permit
MSHA entry to the property for inspections, but that he was
informed that Summit Resources no longer was there and that
Mrs. Slusher had again resumed responsibility of the loading
facility (Tr. 35).
Mr. Saylers confirmed that he has visited Mrs. Slusher's
loading facility on numerous occasions, the last time being
three months prior to this hearing. He stated that at that
time the facility was not in operation because the stationary
crusher on the loading facility which is used to size coal
was broken down. Mr. Saylers identified a photograph of
Mrs. Slusher's residence, which is also used as the mine offices
of Mineral Coal Sales and Hubbard Enterprises, and he confirmed
that the structure is on the mine site (Exhibit P-4).
Mr. Saylers stated that the coal is transported to the
facility by truck, and it is then weighed and dumped at

812

several stockpile locations. He identified exhibits P-5
and P-6 as photographs of some of the stockpiles. He
confirmed that the coal which is brought in by trucks is
dumped in separate stockpiles, and he "assumed" that this is
because it is from different coal seam sources (Tr. 39).
Mr. Saylers identified exhibit P-8 as a trailer adjacent
to the scale where the coal is weighed before it isdumped,
and exhibit P-7 as a sulphur machine and ash oven used to
determine the sulphur and ash content of the coal. He
observed this testing equipment in the trailer where the
scaleman weighs the coal.
He also identified exhibit P-9
as a photograph of the front-end loader which is used to load
the coal from each of the stockpiles into the hopper of the
portable loading unit. He described the loading process as
"unique" in that the railroad cars which are being loaded
remain stationary as the mobile loading unit loads each car.
The front-end loader is used to load the coal from the
particular stockpiles which are nearby, but each railroad car
is not loaded with coal from the same pile.
The front-end
loader may load coal taken from different piles into the
hopper before it is loaded on any particular railroad car,
and Mr. Saylers "assumed" that this loading procedure involved
the mixing of coal which has been taken from different coal
seams and stockpiled by seam. He confirmed that he observed
the front-end loader taking coal from two different stockpiles
and dumping into the loading hopper (Tr. 39-42).
Mr. Saylers explained further that exhibit P-9 is a
photograph of the front-end loader dumping coal into the
hopper as shown in exhibit P-11. After it is dumped into
the hopper, the coal goes through a crusher, comes out onto
the belt line of the mobile loading unit as shown in exhibit
P-11, and is then dumped directly into the railroad car.
The mobile loading unit is on a track so that it can adjust
the two directional belt lines into the particular car which
is being loaded (Tr. 43-44).
Mr. Saylers stated that on the basis of his observations
of the loading process at Mrs. Slusher's facility, as well
as his experience and knowledge of the coal mining industry
it is "a fair assumption" that a coal "blending process"
takes place at the facility.
He based his conclusion on
the fact that after the coal is stockpiled in separate piles,
and after it is tested for sulphur and ash content, the mixing
or blending takes place when coal is taken from different
piles and loaded into a common hopper for loading onto the
railroad cars in its "mixed or blended" state. His experience
indicates that the mixing of coal from different piles where
the sulphur or ash content may vary, results in a mix or
blend of the desired final ash or sulphur content. Further,

813

Mr. Saylers .indicated that in his 23 years of experience in
the coal industry, he has never known a railroad car of coal
being sold without some kind of predetermined ash or sulphur
content specifications being placed on it by the purchaser
(Tr . 4 5- 4 8 ) .
Mr. Saylers identified exhibit P-10 as a photograph of
a separate stationary "grading tipple" used to make stoker
coal, lump coal, or "egg coal" for domestic use. He described
the term "making coal" as the grading process which takes
place after the coal is dumped into the hopper by a loader.
The coal moves along the belt shown in exhibit P-10 where it
is sized by means of a screen. Different sized screens are
used to produce different coal products (Tr. 43). He confirmed
that this particular operation is separate from the operation
used to load the railroad cars (Tr. 44).
In further explanation of the separate grading tipple,
Mr. Saylers stated that its primary use is for retail "house
coal" where customers may buy a truck load or so, but he
confirmed that he had no knowledge as to whether or not that
coal was from the piles loading onto the railroad cars.
Altt.~mgh he stated that the coal came "out of the yard--out
of their stocking area," he personally never observed such
coal being processed through the separate grading tipple
used for domestic sales(Tr. 49).
On cross-examination, Mr. Saylers confirmed that when
he visited the respondent's facility in July 1982, he was
there to inspect the facility in accordance with a court order
issued against Summit Resources (Tr. 51). He also confirmed
that at no time has MSHA ever been refused entry onto the
facility by anyone connected with the respondent Mineral
Coal Sales Inc. (Tr. 52).
Mr. Saylers testified that he again visited the facility
in December 1982 when the citation for failure to file certain
reports were issued, and that since Mrs. Slusher was in Florida,
he dealt with a foreman who was on duty (Tr. 58). He testified
as to certain observations which he made while he was there.
He confirmed that the setting on the crusher in question was
already set, and at no time has he ever observed anyone
adjusting the crusher for different sizes (Tr. 60). He also
confirmed that he observed coal being dumped and weighed, and
he did not inquire as to the names of any of the persons doing
this work because it is MSHA's view that anyone working at
the facility is "an employee of that mine site" (Tr. 62).
He did confirm that the person who was operating the test
equipment in the trailer advised him that he "worked for
Jim.111y Hubbard" (Tr. 66) •

814

Mr. Saylers stated that he has personally never observed
the separate stationary tipple in operation, but has observed
a loader putting coal into it from the highway while driving
by, and he assumed that it was running (Tr. 68-69).
Mr. Saylers testified that when he was at the facility
he observed Donald Price Slusher, Mrs. Slusher's brother-in-law,
and Michael Slusher, her nehpew, performing work in connection
with the mobile loading unit. Price was operating the unit,
and Michael was doing some maintenance work (Tr. 70). He
confirmed that he was not with the inspector in March 1983,
when he issued the citations for failure to take a noise survey
and failure by Mr. Slusher to take first aid training, but
that he did discuss the citations with the inspector who
issued them (Tr. 75).
Mr. Saylers stated that except for the mobile loading
unit which runs on rails, the respondent's loading facility
is no different from other loading facilities which he has
observed.
The only thing that sets them apart, is that other
facilities he has observed utilize stationary loading equipment.
When asked to characterize the respondent's facility, Mr. Saylers
responded as follows (Tr. 79-81):
A.
I said it was a unique situation, but
it is no different from any other loading
facility except this one is mobile, runs on
a rail, and the others are stationary.
Q. What would you classify it? Is it a
prep plant or is it a cleaning plant?
A.

It's a loading facility.

Q.
It's not a prep plant?
cleaning facility?
A.

It's not a

I couldn't say that it's a cleaning facility.

MR. CRAWFORD: Just talk about the machinery
that loads the coal.
JUDGE KOUTRAS: Hold it.
I've got a rubbertired front-end loader; that's P-9.
P-11 is
a mobile loading unit with a hopper, bridge
crusher and conveyor belt -- that's what
somebody said on the back. What are you
asking him?

815

MS. SLUSHER:
this a$.

I'm asking him what he classifies

JUDGE KOUTRAS: He doesn't have to classify this
as anything. What he has to do is identify it.
What is it? What MSHA has done is classify
your whole loading operation, including all these
pictures, in one big bag and they say it's a
custom preparation plant isn't that so, ~r. Crawford?
MR. CRAWFORD:

That's basically it.

JUDGE KOUTRAS: At this time you're asking him
how you classify the machinery as shown in P-11.
THE WITNESS:

It's a loading facility.

BY MS. SLUSHER:
Q.

Does it have a picking table?

A. We have several loading facilities that don't
have a picking table.
Q.

But does this particular one have a picking table?

A.

If it does I'm not aware of it.

Q. Does it have any method for extracting
impurities out of the coal?
A.
It's not a cleaning plant.
loading facility.
Q.

I said it's a

It has no method of separation them?

A. No, ma'am.
plant.

That's only done in a cleaning

Q. So when you talk about processing -- when
you say coal is processed, what are you talking about?
A. Processed can be anything; anything that you
do to the coal.
Q.

If I dump it, it's processed?

A. Blending, mixing, sizing, testing; anything
that you do to it is processing.
JUDGE KOUTRAS: This particular mobile unit, all
it does is load? It doesn't do these other things?

816
.. ····-· .... ···-··--·--·-~·-···------------

···-----------·- ...

THE WITNESS:

No.

MR. CRAWFORD:
It was stated previously there
was a crusher on there.
THE WITNESS:

There is a crusher; that's right.

MS. SLUSHER:

We don't dispute the crusher.

BY MS. SLUSHER:
Q. But you have not observed anything whatsoever
that makes it look like anything other than just
crush the coal and put it on the car?
A.
I have observed a particular size being put
on the railroad car, yes.
Q.

But not custom adjustments or anything like that?

A.

I have not observed

JUDGE KOUTRAS: When it comes your turn, if you
can convince me that the only thing P-11 does is
crush the coal to one consistency from time
immemorial to load then that's all it does.
What that means -- we'll see what it means.
MS. SLUSHER:
I guess I've belabored the point
more than I should.
JUDGE KOUTRAS:
I guess that's the point you're
trying to make.
It just sizes coal to one size.
It processes coal to one size?
MS. SLUSHER:

Right.

In r~sponse to further questions as to what he may have
observed when he visited the facility, Mr. Saylers testified
as follows (Tr. 83).
BY MS. SLUSHER:

Q.

Was there any conversation with anybody about
as far as the dumping concerning individual
piles of coal being from individual operators?

A.
I talked with -- I guess he was a scale man
where the coal come from first of all because I
was concerned and interested. A lot of times I
find out new mines and so forth from asking
questions. He told me that most of the coal

was corning out of the State of Kentucky;
that's where it was being trucked from. He
said there was different seams, different
qualities of coal. That's why it was being
separated.
I didn't pursue why you dump it
here and why you dump it there, because like
I said, again, it's none of my business. The
thing that concerns me was the way -- method
they were dumping it -- the way they were ramping
it, some of the trucks backing up on the ramps.
I'm more safety oriented than I am blended
coal, you know.
MS. SLUSHER: That's what I'm getting at -- he
was saying it was dumped in individual piles.
That implication is that they tested it first and
then put in in the piles. Now what our position
is that it was brought in and dumped and then
tested to pay the operator, the people we got
the coal from; not for any other purpose. That's
the reason it was kept in separate piles.
MR. CRAWFORD: What was your observation?
observed the latter.
Is that correct?

You

THE WITNESS: Yes.
I observed it after the coal
was being dumped in the particular piles.
I
observed the guy taking samples and I asked him
what are you doing. He said we're checking to
see what the ash is and we're checking to see
what the BTU is because, you know, the different
seams of coal
MR. CRAWFORD: The government would have no
objection to stipulate as to that observation
that the testing occurs after the stockpiling.
MS. SLUSHER:

I have no further questions.

REDIRECT EXAMINATION
BY_MR. CRAWFORD:
Q. You did say in your previous testimony that
you were at the site of Mineral Siding facility
on December 28th, 1982 in relationship to
this one citation regarding employment? Do you
recall that situation?
A.

Yes.

816

Q. When you were there did you observe the
facility being operated?
A.

Yes.

Q. And there were employees there performing
certain tasks in loading coal.
Is that correct?
A.

Yes, sir, there was.

Q.

And about how many?

A.
There was two men at the loading facility
and there was one man at the -- weighing coal
and there was another man there that was directing
the trucks where to dump and so forth.

Q. At the loading facility what were these two
employees doing?
A. Well, we observed them in preparation for
starting and then also observed one man running
the front-end loader and one man was running
the loading facility itself.
Q.

The mobile

A.

Yes.

Q. So you did observe employees at the site at
that time?
A.

Yes.

Q. Concerning the mobile loading facility we
discussed previously, there was a crusher located
on there.
Is that accurate?
~-

Yes, sir.

Q.

Can that be adjusted to certain sizes of coal?

A. All of the stationary crushers that I have
been acquainted with are adjustable.
Q. We're talking about the crusher on the mobile
loading facility.
Is that correct?
A. Yes.
Of course, they just installed a new one
and I don't know what type they put on.
I'm assuming
~hat it is adjustable, but I can't say that it is.

819

Q.
In reference to the laboratory, the trailer
type facility that was located at the Mineral
Siding facility, you observed it being utilized
and in operation in conjunction with what was
happening at the facility?

A.

Yes, sir.

MR. CRAWFORD:

I have no further questions.

JUDGE. KOUTRAS:

Do you have anything else?

MS. SLUSHER: Again, he did not observe anything
being adjusted on the crusher.
THE WITNESS:

At the time I observed it, no.

Respondent's Testimony and Evidence
Price Slusher, confirmed that he is the brother-in-law
of Bobbie S. Slusher, and he testified that he is presently
employed by Mineral Coal Sales, Inc. He stated that duri~g
the period July 1, 1982 to March 1, 1983, he was employed by
Interwise and was not under the control of Mineral Coal Sales,
and was not paid by Mineral Coal Sales. He stated that in his
employment with Mineral C~al Sales, he acts as the facility
foreman or superintendent, and his duties include mechanical
work and the operation of the tipple. He had the same duties
when he was employed by Interwise (Tr. 131).
Mr. Slusher stated that his involvement with the coal
loading as an employee of Mineral Coal Sales begins when he
receives instructions from Kim Reed with regard to the loading
of coal. He identified Mr. Reed as an employee of Jim Hubbard,
and Mr. Slusher stated that the crusher has no picking table,
and that there is no available method for separating the coal
or making any coal sizing adjustments to the crusher, and
that "they're all run through the same thing -- the same
sizes" (Tr. 132). He further described his duties as follows
(Tr. 132-133) :

Q. Kim Reed is an employee of Hubbard who
instructs you what cars to load?
A.

That's right.

Q. Where is the coal? Is the coal all together
in one pile or many piles?
A. No, it's in many piles. It's in separate
piles and he instructs us most of the time by
a little note telling us what bucketful to
pick up here and what bucketful to pick up in
another pile and another pile, however his
mixture is that he wants.

820

Q. ·Do you have any idea why the coal is put
in separate piles?
A.

It's because of a different grade coal.

Q. Different grades. Does that mean from
different operators or
A.

Different operators.

Q. Do you have any knowledge of who owns that
coq.l?
A. No.
Not at the point till it comes to my
dock.
Then Hubbard Enterprises, I suppose owns
it from there on.
Q. You're not familiar where the coal is coming
from as far as an individual mine?
A.

No.

Q. Are you familiar with what custom preparation
of coal is? Do you understand custom preparation
of coal?
A.

I don't know what you mean by that.

Q. Well, do we do anything that makes that coal
specifically -- as Mineral Coal Sales, does Mineral
Coal Sales do any process that prepares that coal
for a special person or a special customer?
A. No, not in our process we don't. As I say,
all we do is load what they say to load.
Q. And we don't get involved with picking out
or taking out any kind of impurities or washing?
A.

No.

Q.
Does Hubbard Enterprises exercise any
jurisdiction over Price Slusher? Does he instruct
you as to your duties?
A.

No, other than just what coal to load.

Q.

And he doesn't pay you?

A.

No.

82J

Q.

He doesn't furnish any side benefits to you?

A.

No.

Q.

Are you aware of who owns Hubbard Enterprises?

A.

Jim Hubbard, I suppose.

Q. To your knowledge has Mineral Coal ever had
any interest in Hubbard Enterprises?
A.

No.

Mr. Slusher testified that mining first began at the
respondent's facility sometime in 1979, and that Mineral
Developers constructed the loading dock and operated the
facility. Mineral Developers and Mineral Coal .Sales are
owned by the same individual (Tr. 134). Mr. Slusher stated
that he was employed by Mineral Developers as a foreman, and
after mining ceased, coal loading continued under the same
procedures followed at the present time (Tr. 135). Coal
was simply loaded for a fixed fee, and no testing or coal
quality services were provided by the respondent (Tr. 135).
On cross-examination, Mr. Slusher testified that when
he worked for the Interwise Corporation from July 1, 1982
to March 1, 1983, the company was owned by a Mr. Sheley Mullins.
Mr. Mullins is not related to him, and Mr. Mullins usually
came to the site to check the work and instruct him on what
he wanted done. Mr. Slusher stated further that he performed
maintenance work and operated the loader, and was paid by
checks issued by Interwise (Tr. 136).
With regard to the present coal loading procedures, and
the instructions from Hubbard Enterprises employee Kim Reed,
Mr. Slusher stated as follows (Tr. 137-139):
A.

Kim will usually bring a whole pad out
a little piece of paper out and he'll
have wrote down on it how many buckets of
this coal or how many buckets of that coal
out of each pile, you know, how many buckets full
he wants to put in the cars. And that's what
we do. And he'll usually have on there four
cars or five cars or whatever he wants loaded
of that mixture, you know.

Q. And then he may come along and give you
different instructions for a different set
of cars?

822

A.
That's right. He'll make any other
instructions wrote on the same piece
of paper.

Q. To your knowledge, what happens to
the coal after you load it?
A. Other than the railroad pulls it out,
that's as far as I know.
Q. Did Mr. Hubbard ever mention to you
where it goes or who he sells it to?
A.

No, he sure doesn't.

Q.

Do you have any idea?

A.
I haven't any idea where it goes to.
It's not many operators that will tell you
that.
Q. You also stated that the coal is stockpiled in many piles as it comes in from
independent operators or other different types
of miners?
A.

That's right.

Q. Do you know where they come from or
where the coal comes from at all?
A.

No, sir, I sure don't.

Q.

In this area of the country?

A. They 1 ll say Kentucky or they'll say -they won't go into no specific details of where
the coal come from.
Q.

Do you do any of the testing?

A.

No.

Q. You're aware that there is some type of testing
going on at that facility?
A. Well, yeah -- they don't tell us anything
about the testing.
Q.

Who does know about the testing?

823

A.

Kim Reed does.

Q.
But they come in with different grades
according to wherever the particular truckloads came from, whether it be Kentucky or
wherever?
A.

That's right.

Q. And then you load them per instruction
from Mr. Hubbard?
A.

That's right.

Q. A different number of railroad cars per
instruction?
A.

Right.

Q. Different mixes, different shovelfuls
or according to what is instructed and they
may vary from day to day?
A.

That's right.

Q. So then there are different mixtures or blends
that occur that are loaded on these railroad
cars?
A.

That's right.

With regard to any exposure to potential hazards by
employees on the facility, Mr. Slusher testified as follows
(Tr. 13 9-141) :
Q. What if someone was injured on the premises?
Who would have any type of training or control
-- you are a foreman that's part of the loading
process here. What if an injury would occur or
dangerous situation might occur in your operation?
What control do you have over that?
A. Yes, I've had first aid training and also as
far as I know everybody on the dock has had
first aid training.
Q.
What about -- you don't perform the test_ing
but you mentioned that Hubbard Enterprises is
involved in that.
Is that accurate?

A.

That's right.

824

Q. Some of them do the testing that occurs
in the facility at the testing trailer
or whatever -- laboratory there?
A.

That's right.

Q. Do employees of Hubbard do any other
things besides just the testing? Do they
help in the loading?
A.

No, they don't help in the loading.

Q. But they are involved in the testing of
stockpiles or the coal as it comes in to
determine what grade it is.
Is that correct?
A.

Yes.

Q. So as a truck pulls up and unloads a load
of coal they may be out there adjacent to it
somewhere taking a sample to test. Is that
correct?
A.

That's correct.

Q. So they could be affected by what's
happening in the yard as far as the movement of
those large trucks and dumping of those piles
and possibly a dangerous circumstance could
develop. Is that correct?
A. Most of the time when they're taking a
sample they pick between trucks. They're not
right there when a truck dumps as a general
thing. They're not there when a truck actually
is in the process of dumping.

Q. Do they ever come into your work area as
you're loading the coal -- after the coal is
brought in and stockpiled and they maybe perform
tests and then -- of course, how you load
it. You go with a front-end loader and take a
shovelful here and a shovelful there. Are they
out there when you're doing that process at
all?
A.

They might pass through.

Q. How about when you're actually loading it
into the mobile loader which is loading the railroad cars out there? Are they at any time out
there testing coal to make sure that it's going
in at the correct grade or anything like that?

825

A.

No, they're not there.

Q.

They do that before?

A.

Yes.

Q. So they are out in the work area when you
are taking different buckets?
A.
They're more or less passing through.
They don't stay out there or anything like that.

Q. But they would be proximate to the front-end
loader that's working out in that area or could
be?
A.

Could possibly.

In response to further questions, Mr. Slusher indicated
that he personally had no way of knowing whether different
blends of coal were being mixed on any given day. He also
indicated that when he was employed by Interwise, all of
the equipment he used and worked on belonged to Interwise, and
any citations issued by MSHA should have been served on that
company (Tr. 144). He confirmed that the policy of Mineral
Sales Company is to conduct morning safety inspections of
the facility (Tr. 145).
Mr. Slusher testified further that Mineral Coal Sales
has operated the present loading facility since March 1983,
and that he and Michael Slusher are the only employees. At
the time Interwise operated the facility, they had two employees,
and Hubbard Enterprises also has two employees. He confirmed
that at any given time, a total of four employees work at
the facility.
The trucks which haul the coal in are owned
by independent truckers (Tr. 153-154). The loader shown
in the photographic exhibit is owned by Mineral Sales, but
it is not the same loader which was operated by Interwise in
March 1983, and he described the differences in the two loaders
(Tr. 155).
Kim Reed, testified that he is employed by Hubbard
Enterprises, and has been so employed since June 1982. He
is a state certified dock foreman, and has been certified by
the State of Virginia as "an approved competent" miner since
1981. Mr. Reed confirmed that he was present and working on
the facility during the time·Interwise and Mineral Coal.Sales
were involved in the loading operations (Tr. 161).
Mr. Reed testified that Hubbard Enterprises is owned
and operated by Mr. James Hubbard and his wife.
They work
together in their office on the facility, and Mrs. Hubbard
serves as the secretary. Mr. Reed examined a copy of a letter
dated June 8, 1983, from Mr. Hubbard to MSHA official James Belcher,
and he expressed agreement with the statement made there by
Mr. Hubbard (Tr. 162-163).

826

Mr •. Reed explained the procedures he follows when
coal is delivered to the premises as follows (Tr. 164-166):
A. When the coal comes in I have another
employee that helps me and I'm the foreman over
him. When the coal comes in we weigh it.
People that regularly haul we have certain
places set for them to dump.
We tell them
where to dump.
If they bring in a different
quality or a different seam that I don't know
of, I call Jim and tell him where to have me
dump the coal. Then we sample the coal -- the
guy that helps me goes down and samples the
coal, gets the samples off of it. He prepares
the samples and I run the samples and then I
get the analysis.
Then if Jim wants to -- if
he needs to know in a hurry the analysis I
pick up the phone and I call him.
I tell him
what the coal line is -- whether he wants them
to continue to hauling or discontinue.
Then
I have a pad that I keep down and I write all
the samples down and at the end of the day or
the next morning I take the samples down to
the office, lay them on the secretary's desk
so she can copy the samples down -:- analysis.

Q. So actually you don't -- you take it off
the pile, the individual piles. You don't take
it off of a thing that's been stacked together
or blended together on the site, do you?
A.
No, ma'am, we do not.
the truck.

We take it off of

Q.
They say in this letter that they run ash
and sulfur and BUT and FSI.
Is that correct?
A.

Yes.

Q.

Is there any other test that's done?

A.

No, there's not.

JUDGE KOUTRAS:
THE WITNESS:

What's FSI?
It's free swelling index.

BY MS. SLUSHER:

Q.

Do you do any fluidity tests?

A.

No, ma'am, we do not.

827

Q. Do we have the capacity in the lab to do
the fluidity test?
A.

No, ma'am, we did not.

JUDGE KOUTRAS: Was that a slip of the tongue
when you said we?
MS. SLUSHER:

Well, that's my equipment.

BY MS. SLUSHER:

Q. Do you make any reportts to any companies
concerning what's in the pile? When you take
a sample off the pile here do you make a report
to any end users of the coal what's in that
pile?
A.

To the people we ship the coal to?

Q.

Yes.

A. No. The only thing we do -- the only
report taken is the car -- after the car is
loaded we sample the cars. That is the only
we take the car samples and I give them to -take them to the office. And then Jim relays
the message and reports to them.
I don't give
analyses to none of the companies that we ship
to. As a matter of fact, he has ordered me not
to give them.
If he's out of town or anything
when they call I don't give them to them.
Mr. Reed confirmed that the laboratory personnel are
employees of Hubbard Enterprises, and that Mr. Hubbard buys
all supplies and pays for all required maintenance on his
equipment. Mr. Reed also confirmed that each morning he
instructs the loader operator as to how many cars of coal to
load, and he also instructs him as to which piles the' coal
should be taken from (Tr. 166-167).
Mr. Reed stated that extraction of dirty coal or
impurities does not take place, and the tipple is not
adjusted on a daily basis to size the coal. All coal orders
are shipped "on a certain size," and adjustments for sizing
are not done. With regard to the stationary tipple, Mr. Reed
stated that it is used to "grade out coal for domestic use"
(Tr. 167). He explained that that this coal is "house coal"
which is made available "as a more or less convenience to
the people" (Tr. 168): Mr. Reed confirmed that Mr. and Mrs. Slusher
have no interest in Hubbard Enterprises, and that the respondent
is paid on the basis of the coal tonnage that is loaded and does
not own the coal (Tr. 168).

828

On cross-examination, Mr. Reed stated that his duties
as a State certified foreman for Hubbard Enterprises consist
of direct supervision over one other employee of Hubbard
who is involved in testing. He also indicated that he has no
authority over the "loader man and tipple man" employed by
the respondent.
Mr. Reed confirmed that when Interwise Corporation was
operating on the property it did its own testing and loading
of its own coal and Hubbard Enterprises tested and loaded
the coal which it owned (Tr. 169). In further explanation
of his duties while in the employ of Hubbard Enterprises,
Mr. Reed stated as follows (Tr. 171-172):

Q. Part of your job is to tell Mr. Slusher
at Mineral Sales, Incorporated how to load the
coal -- what mixture of each pile.
Is that
correct?
A.

Yes, sir.

Q.
Each stockpile, you said, comes from a
different type of mine?
A.

Different seam.

Q.
Do you test that coal to see just what
quality it is?
A.

That's right, we do.

Q. And you said that Jim Hubbard makes that
determination and tells you what king of mix
he wants for any particular load?
A.

That's true.

Q.
Why does he request that? Do you have any
idea? Who tells him, in other words?
A.
The people he ships to; the people that buy
the coal off of him each month.
They send him
a letter stating how much -- the quantity
of coal and the quality of coal that they need.

Q.

Do you know anybody that he ships to?

A.

Yes, sir, I do.

Q.

Could you name a few?

829

JUSGE KOUTRAS: You can't take the Fifth
Amendment in this proceeding if that's what
you're thinking about.
I don't want you to
get in trouble. Is there any proprietary
confidence?
MS. SLUSHER: Confidentiality
that's one
reason -- I'm not trying to play ignorant when
I say .I don't know, but I really don't want to
know because of the brokers and operators.
JUDGE KOUTRAS:

If he knows -- answer the question.

THE WITNESS: We shipped to Shelton Coal Company,
A.T. Massey, United Coal and Coke, John McCall,
Jefferson Coal, that's about it.
JUDGE KOUTRAS: He rattled off four or five people
that coal is shipped to.
BY MR. CRAWFORD:

Q.

They request by letter to Mr. Hubbard?

A.

Yes, sir.

Q.

What type of coal they want sent?

A.

That's right.

Q. And he tells Mr. Slusher with Mineral Coal
Sales how to mix it?
JUDGE KOUTRAS:
THE WITNESS:

No, he tells Mr. Reed.
I go down there every morning.

BY MR. CRAWFORD:

Q.

You tell Mr. Slusher?

A. Yes. Jim tells me how many cars he needs
loaded that day and as far as the mixture for the
quality of coal.
I write it down and I take it
out and give it to Mr. Slusher.
Mr. Reed confirmed that after the railroad cars are loaded
he again samples the coal in each car to determine whether
or not the customer who ordered it from Mr. Hubbard is actually
getting "the type or grade of coal" that he contracted for

830

(Tr. 173). With regard to the. stationary "tipple," he
identified it as a "separator" and indicated that the
respondent does not use it. He explained that the separator
is used to separate stoker, egg, and lump house coal by means
of screens which "shakes down" the coal through holes in the
screen. Separate screens are used for fines and lump coal
up to four inches depending on the customers preference (Tr. 175).
Mr. Reed stated that the house coal processed by the
separator is sometimes sampled, and he identified the testing
and sampling equipment as machines used for testing for ash,
sulfur, and BTU content, and a bunsen burner, a pulverizer,
and a sample crusher (Tr. 175). Mr. Reed indicated that
this test equipment is owned by Mrs. Slusher, but had no knowledge
as how she is compensated for the use of the equipment by
Hubbard Enterprises (Tr. 176). He also confirmed that
Mrs. Slusher owns the stationary domestic coal screening
equipment, and Mrs. Slusher confirmed that she is paid one
dollar a ton for the domestic coal processed and sold by
Hubbard (Tr. 178). Mr. Reed also confirmed that Hubbard
Enterprises has an off ice in the same residence where Mineral
Coal Sales maintains its office, and he assumed that Hubbard
pays rent to Mrs. Slusher for this office space (Tr. 185).
Posthearing Submissions
Respondent filed an affidavit from James w. Hubbard,
owner of Hubbard Enterprises. Mr. Hubbard states that he
is in the business of buying and selling coal. He confirmed
that Hubbard Enterprises and Mineral Coal Sales operate as
independent business units, and are not connected by any
common stock ownership.
Mr. Hubbard states that his coal is purchased from
many independent operators or truckers for sale to his
customers. He states further that Mrs. Slusher's Mineral
Siding loading facility is used to load the coal, and
that he pays Mrs. Slusher $2 per ton of loaded coal.
This payment is based on the truck weights as they cross
the scale, and is not dependent on the type or quality of
coal purchased or sold by Hubbard Enterprises. He outlined
the procedure used in the buying and selling of the coal,
in pertinent part as follows:
I.
I arrange with small operators or truckers
who purchase coal and then resell it to buy
their coal. We agree on a price range provided
it is a certain grade of coal. When the trucks
deliver the coal, it is dumped on the ground
in individual piles, according to the operator
or seller of the coal. To see if the coal is

831

the same as represented to me and to
protect myself to keep from losing money and
buying bad coal, I will sample the coal after
it is dumped.
If it is obviously not what I
agreed to buy, then I will contact the owner
of the coal and tell them I will pay a lesser
amount or they can pick up the coal.
This
separation into piles permits me to do this.
After the coal is loaded onto the cars, I
have car top samples taken from time to time.
This is to protect Hubbard Enterprises in
case there is some question as to what is in the
cars. Over the years it has been a problem
in the industry of operators and coal people
doing what is called layering, that is putting
the good coal on top of the trucks or cars,
covering up inferior coal in the bottom of the
trucks or cars. A preliminary sampling of the
truck loads dumped might not reveal this problem
but sampling of a loaded car would show this
up.
In other words when it is stirred up by
loading, what you thought was good coal might
be poor quality.
II.
I do not furnish any analysis to my customers.
They will give me an order for so many tons of
coal and I will load the cars.
I know what they
need from having done business with them the
last six years.
In the event a customer ask
for analysis, Standard Lab is hired to sample
toe coal and give a copy of the analysis to the
customer only. We get orders from many different
customers for so many cars of coal per week.
The only people who see these orders are myself,
my wife, and our daughter. No one else has access
to any of this information.
I am filing with
this affidavit samples of confirmation of orders
from Shelton Coal Company dated September 19,
1983 and September 29, 1983. The size of 1 1/4"
is the standard sizing and no adjustment is made
on the crusher for any of my loading.
III. The stationery unit on the premises is used
for domestic coal sales.
It is primarily an
accommodation of the public and the same service
provided at any domestic coal yard in the country.
It does not constitute any large amount of our
business. We pay Mineral $1.00 per ton for each
ton of coal run thru [sic] this unit.
The coal

832

coming in is marked for domestic use.
I
do not sample it.
It is a completely
separate operation from the loading onto the
railroad cars. The reason that I decided
to make house coal was because people were
telling me they were having a hard time finding
coal to heat their homes.
In response to the information provided by Mr. Hubbard's
affidavit, MSHA asserts that in Part II of his affidavit,
Mr. Hubbard's statement that "I know what they need from having
done business with them the last six years," is a suggestion
by Mr. Hubbard himself that his company mixes or provides coal
to meet customer specifications.
Responding to the samples of confirmation orders dated
September 19 and 29, 1983, submitted by Mr. Hubbard from
the Shelton Coal Company, MSHA asserts that these are only
modifications of orders and do not represent the contents
of the original purchase orders.
In support of this, MSHA
submitted as Exhibit No. 12, a copy of an original purchase
order, dated September 20, 1983, from Shelton Coal Company
to Hubbard Enterprises. MSHA states that this order clearly
shows that Shelton requested more than just tonnage in that
the coal purchased was to be of (1) 13,000 BTU; (2) 10 Ash;
(3) 1 Sulfur; (4) 2700 Fusion and (5) 60 Grind and a size of
1 1/4 x O" Nutslack.
MSHA argues that the mineral siding facility is more
than just a loading facility as was the situation in Secretary
v. Oliver Elam, Jr. Co., 4 FMSHRC 5 (January 7, 1982).
MSHA asserts that it is a facility where weighing, testing,
storing, mixing or blending of coal occurs, not for the purpose
of facilitating the loading process but for the purpose of
preparing or milling the coal to meet customer specifications.
MSHA concludes that this is coal preparation, in that a process
occurs, usually performed by the mine operator engaged in
the extraction of the coal or by custom preparation facilities,
which is undertaken to make coal suitable for a particular use
or to meet market specifications.
Findings and Conclusions
Jurisdiction
In Secretary of Labor v. Oliver Elam, Jr., Company, Inc.,
2 FMSHRC 1572 (1981), the Commission affirmed a Judge's decision
that Elam was not a "mine" subject to the 1977 Mine Act.
The

833

facts in Elam are surprinsingly similar to those presented
in the instant case. Elam owned and operated a commercial
dock, and 40 to 60 percent of its loading tonnage was
attributable to coal. Four or five coal brokers paid Elam
to load coal onto barges at the dock, and the brokers, who
were not mine operators, arranged for delivery of the coal
by truck to the dock, and then for delivery by barge to their
customers.
Elam's facilities for loading coal consisted of
a hopper, a crusher, and conveyor belts. The coal was
delivered to and stockpiled on Elam's property, where it was
weighed by the broker's employees and placed in the hopper.
A conveyor carried the coal from the hopper to the crusher
where it was broken into essentially one size. The crusher
could not be adjusted for variable sizing and has no grates
to sort the crushed coal. The crushing was done because the
conveyor belts were covered and could always accommodate
large pieces of coal. From the crusher another conveyor
carried the coal to the barges, but occasionally the crusher
was by-passed and coal was loaded directly into th~ barges.
All coal whether crushed or not was loaded on the barges.
Elam did not prepare coal to market specifications or for
particular uses, nor did it separate waste from coal or add
any material to it. Thus, all of Elam's activities with
respect to coal related solely to loading it for shipment.
In rejecting MSHA's assertion that Elam was a "mine," the
Commission stated as follows at 2 FMSHRC 1573, 1574:

*** we find it significant that the types
of activities comprising 'the work of preparing the coal' have consistently been
categorized as 'work • • • usually done
by the operator.' Thus, inherent in the
determination of whether an operation
properly is classified as 'mining' is an
inquiry not only into whether the operation
performs one or more of the listed work
activities, but also into the nature of
the operation performing such activities.
In Elam's operations, simply because it in
some manner handles coal does not mean
that it automatically is a 'mine' subject
to the Act.
Rather, as used in section 3(h) and as
defined in section 3(i), 'work of preparing
coal' connotes a process, usually performed
by the mine operator engaged in the extraction
of the coal or by custom preparation facilities,

834

undertaken to make coal suitable for a
particular use or to meet market specif ications.
In the present case, although Elam
performs several of the functions included
in the 1977 Act's definition of coal
preparation (i.e., storing, breaking,
crushing, and loading}, it does so solely to
facilitate its loading business and not to
meet customers' specifications nor to render
the coal fit for any particular use. We
therefore conclude that Elam's facility is
not a
'mine' subject to the coverage of the
1977 Mine Act.
In addition to the Elam decision, respondent relies on
several past opinions rendered by the Secretary's Solicitor's
Office, to support its argument that the Mineral Siding
facility is not a "mine" within the meaning of the Act.
Exhibit R-1 is a copy of a March 31, 1972, advisory opinion
by the Office of the Solicitor, U.S. Department of the Interior,
pursuant to the 1969 Coal Act, with regard to whether or not
a coal processing operation in Pennington Gap, Virginia
(Geisler Coal Sales, Inc.} was a "coal mine" within the meaning
of section 3(h} of the Act. Based on the facts presented
to the Solicitor's Office at that time, it.was concluded that
Geisler was not a coal mine or a mine operator subject to
the Act.
Subsequently, by letter dated October 10, 1980,
the U.S. Department of Labor's Solicitor's Office advised
the United States Attorney's Office in Roanoke, Virginia,
that since it was determined that MSHA had no enforcement
jurisdiction over Geisler, any efforts to collect civil
penalties against Geisler should be stopped and the matter
closed (Exhibit R-1).
The Geisler opinion was based on the following facts
which appear at pages 1 and 2:
1. Mr. Geisler does not mine coal, nor
does he own a 'coal mine' per se. He
purchases coal from one mine-located in
Virginia and 'sizes' the coal by the use
of a vibrating screen. One part of
the 'sized' coal is loaded into railroad
cars and shipped to his purchaser.
The
remaining lump coal is retained in a
storage yard for domestic sales.
Approximately 150 tons of coal per day
are processed or 'sized.'

835

.2. Geisler has one employee and considers
his business to be a rcoal grading plant. 1
The Virginia Department of Taxation classifies
Geisler as a 'coal merchant.'
3. He has no state or Federal mine identification number.
The opinion goes on to recite the statutory definitions
of the terms "coal mine" and "work of preparing the coal."
The Solicitor concluded that Mr. Geisler's business did not
fall within these definitional categories because he had
nothing directly to do with the extraction of coal from its
natural deposits in the earth, and that such extraction
is a prerequisite to coming within those categories of a
"coal mine." Citing the dictionary definitions of the terms
"custom" and "coal preparation," the Solicitor made the
following conclusions:
Thus, by the use of the phrase 'custom
coal preparation facilities,' it appears
that Congress intended to extend the
coverage of the Act to processors
of coal who prepare the coal to the order
or specifications of the mine operator who
extracted such coal, whether the processor
is independent of, or owned by, the coal
mine operator. We reach this conclusion
after a careful examination of the
legislative history and evaluation of the
overall purpose of the Act. The Act was
primarily intended to promote health and
safety in coal mines and thus assure a
steady and reliable supply of coal in
interstate commerce. Congress was well
aware of the nature of the coal mining
industry and the fact that most large mining
operations include surface facilities for
processing coal, either on or off the 'area
of land' where the coal is extracted.
In other cases, however, such facilities
are owned by a subsidiary of the mining
company, or by an independent processor
whose function is to process the coal for
the mining company, or a group of mines or
mining companies, but such processors never
actually 'own' the coal.
It would have been
anomalous and inconsistent with the purpose
of the Act to extend coverage to preparation

836

facilities on the mine property but not
to.cover those off the mine property but
which are owned by or under contract to the
mining company, because such facilities
must operate to ensure that the mined coal
is 'custom prepared' to the specifications
of the mine operator or of the purchaser
of the coal from the mine operator.
On the other hand, it is our view that
Congress did not intend to extend the coverage
of the Act to independent processors who
merely purchase mine run coal from one mine,
or several mines, and on its own initiative,
subject to no 'personal order or specification'
of the mine operator who extracts the coal
has been processed according to the processors
own plans or specifications. Such a processor
is much more in the nature of a wholesaler
than that of a producer.
It. is clear that
Congress intended to bring within the Act the
primary producers and 'custom' processors of
coal to ensure a reliable supply of coal in
interstate commerce.
The Solicitor summarized his advisory opinion as follows:
A.
Processors of coal who prepare the coal
to the order or specifications of the mine
operator who extracted the coal, whether the
processor is independent of, or owned by
the coal mine operator, are covered by the
Act.
B.
'Custom coal preparation facilities' owned
by a subsidiary of the mining company, or
by an independent processor whose function
is to process the coal for the mining company,
or a group of mines or mining companies,
but such processor never actually 'owns' the
coal (or expressed in a different manner, is
performing a service for the mining company),
are covered by the Act, whether on or off of
the mine property.

c.

Processors who purchase mine run coal
from one mine, or several mines, and on its own
initiative, subject to no 'personal order or
specification' of the mine operator who
extracts the coal, and who process the coal for
sale on the open market, or to occasional

837

p~rchasers, or to its own customers or
purchasers, after the coal has been
processed according to the processors own plans
or specifications, are not subject to the
Act.
Such processors fall more within the
classification of a wholesaler or retailer
than that of a mine operator who extracts the
coal and has it processed to meet the order
or specifications of the mine operator or the
customers or purchasers from the mine operator
who extracts the coal.

Also included as part of Exhibit R-1 is a copy of an
April 6, 1972, memorandum to all MSHA District Managers
advising them that the above mentioned paragraphs A through C
should be followed in determining the application of the 1969
Coal Act to custom cleaning plants.
Exhibit R-2 is a copy of a March 26, 1982, advisory
opinion by MSHA's Associate Solicitor for Mine Safety and
Health, Arlington, Virginia, concerning the application of
the Act to Chance and Montgomery Coal Co., Inc., No. 1 Tipple,
Jonesville, Virginia, and the pertinent portion of that opinion
states as follows:
It is our understanding that the facility
consists of a tipple and a crusher. Clean
coal is initially delivered to the facility
by commercial carrier and then stockpiled
before loading onto railroad cars for shipment to consumers. The tipple carries the
coal to a crusher where it is broken into
one size. The coal is not sized according
to any operator's or consumer's specification,
but crushed merely to better facilitate
loading of the larger pieces of coal. We
further understand that the facility is not
located on or adjacent to any mine property
and is not an integral part of any mining
operation.
Generally, MSHA has jurisdiction over a loading
facility where coal preparation activity takes
place. However, as a result of Secretary of
Labor v. Oliver M. Elam, Jr., Company, 4 FMSHRC
5 (Jan. 7, 1982), MSHA is currently reexaming
loading facilities over which it is asserting
jurisdiction to determine the nature and
purpose of the work that takes place at these
facilities. MSHA makes jurisdictional determinations based upon the factual circumstances
of each situation.

833

In light of the Elam decision and based on
the information currently available, it
is our view that MSHA should no longer exercise
jurisdiction over the facility.
If at any
future time the nature of the activity at the
facility changes, we reserve the right to
reevaluate this determination. A copy of
this determination will be sent to the
Occupational Safety and Health Administration
for their consideration.
Relying on the Elam decision, as well as well as the
decisions in Marshall'""V:'" Stoudt's Ferry Preparation Company,
602 F.2d 589 (3rd Cir. 1979) cert. denied 444 U.S. 1015
(1980); and Secretary v. Alexander Brothers, Inc., 4 FMSHRC
541 (1982) , MSHA argues that the testing and blending of coal
at the respondent's facility constitutes "mining" under the
Act. Further, MSHA asserts that whether brokers or direct
customers purchase the coal is not relevant. MSHA maintains
that it is the processing of coal by mixing or blending and
sizing to meet certain specifications for the market that
constitutes mining activity whether it be for the brokers or
their customers or whether such mining activity is performed
by respondent Mineral Coal Sales, Inc., or its contractor.
MSHA's position is that the respondent is a "mine operator"
within the meaning of .the Act, and that its facility is a
type of custom preparation facility or a facility where coal
is processed, mixed, or blended in order to meet certain
customer specifications (Tr. 7).
Respondent's position is that it operates a commercial
loading dock, and from time-to-time loads coal for individual
coal brokers for a fee of $2 a ton.
Respondent denies that
it is in any way involved in the purchase and sale of any
coal, or that it is any way connected with the hauling or
railroad transportation of the coal. Respondent maintains
that its sole function is to insure that the coal is placed
on the rail cars, and for that service it is paid $2 a ton,
and denies that it is in any way connected with any coal
preparation.
Respondent maintains that it has two employees on its
payroll, and that Hubbard Enterprises is the actual coal
broker for whom respondent loads the coal onto railroad
cars for transportation to customers. Respondent asserts
that Hubbard Enterprises has employees who weigh the coal
and direct its dumping as it comes on to respondent's property.
Respondent states that Hubbard Enterprises also conducts
the coal analysis, and respondent denies any contacts with
any of the customers who purchase the coal from Hubbard
Enterprises (Tr. 8).

839

Exhibit P-1 is an MSHA Legal Identity Report, dated
May 22, 1979, and it reflects Mineral Coal Sales, Inc., was
operating a facility known as Mineral Siding, and the commodity
is shown as "coal," and Mrs. Bobbie S. Slusher is showri
as President of Mineral Coal Sales, Inc., and the Mine ID No.
is shown as 44-05226.
Exhibit P-2 is an "updated" MSHA Mine Status and
Inspection Data form dated January 11, 1982, and it reflects
a change in the mine name from Norton Tipples to Mineral Siding,
and the company name is shown as Summit Resources, Inc.
The form also shows that the mine is a producing bituminous
surface mine, with a surface loading dock.
The Mine ID No.
is again shown as 44-05226.
Exhibit P-3 is an "updated" MSHA Mine Status and Inspection
Data form dated July 1, 1982, and it reflects a change in
the mine name back to Mineral Siding, and the company name is
shown as Mineral Coal Sales, Inc.
The form reflects that
the mine is a bituminous mine, with a loading dock.
The
Mine ID No. is again shown as 44-05226. A notation on the
form states "change of ownership, Mineral Siding is presently
being operated by Mineral Coal Sales, Inc., Summitt Resources,
Inc., terminated their lease of Mineral Siding."
After careful consideration of all of the testimony
and evidence adduced in these proceedings, I conclude and
find that the respondent is in fact a "mine operator"
within the meaning of the Act.
I also conclude and find
that it is an "operator" within the definitional parameters
set out by the Commission in its Elam decision. On the facts
here presented, the record establishes that the coal loading
process carried out by the respondent in this case includes
a procedure and practice whereby the coal that is ultimately
loaded and shipped to the customers of Hubbard Enterprises
is coal that is mixed to their particular specifications
and standards. While I consider the respondent's "mining
operation" to be a rather low key family operation, it does
in fact qualify as a "mine" under the Act. My view here
is that the operations carried out by Hubbard Enterprises
and Mineral Coal Sales, Inc., consist of small family oriented
business ventures which ma~ not compare in size and scope with some
other mining operations inspected by MSHA's enforcement staff. However, I take these cases as I find them, and here, I am
constrained to find that the respondent is a "mine operator"
within the meaning of the Act, and is subject to MSHA's
enforcement jurisdiction.
I reject the respondent's assertion that it falls within
the exceptions noted by the Commission in its Elam decision.

840

Contrary to the respondent's arguments, and contrary to the
posthearing affidavit filed by Mr. Hubbard, it seems clear
to me that Hubbard sells its coal according to certain predetermined quality specifications, and that the respondent
here processes and loads that coal for shipment to Hubbard's
customer's in accordance with the customers customized
orders.
In short, I conclude that the mining operation
carried out by the respondent includes the custom blending
and loading of coal to meet the specific specifications and
needs of Hubbard's customers. The credible testimony of
Mr. Reed, as well as the candid admission by Mr. Hubbard
in his affidavit that he knows the needs of his customers,
are sufficient to establish that the coal which is loaded
for shipment by the respondent in this case is custom-blended
and loaded by the respondent to meet the specific needs of
the market.
Given these circumstances, I conclude and find
that the facts presented in Elam are different from those
presented here, and the respondent may not look to Elam for
refuge.
While I recognize that one may logically argue that the
respondent's "mining operation" is de minimis, and that MSHA
should devote its enforcement efforts to more important matters,
respon<lent is within MSHA's enforcement jurisdiction.
Fact of Violations
Dockets VA 83-26 and VA 83-39
Respondent is charged with two violations of the reporting
requirements of 30 CFR 50.30, which provides in pertinent
part as follows:
(a) Each operator of a mine in which
an individual worked during any day
of a calendar quarter shall complete a
MSHA Form 7000-2 in accordance with
the instructions and criteria in
§ 50.30-1 and submit the original
to the MSHA Health and Safety Analysis
Center, P.O. Box 25367, Denver Federal
Center, Denver, Colo. 80225, within 15
days after the end of each calendar
quarter.
Citation No. 2039607, issued in December 28, 1982, charges
the respondent with a failure to submit a report showing the
number of miners employed at the mine for the third quarter
of 1982, namely the months of July, August, and September.
The inspector noted that the mine was reopened on July 1,
1982, and it seems clear to me that this information was
obtained from the information shown on exhibit P-3, the updated
MSHA form showing that the respondent assumed operation of the
facility after Summit Resources, Inc.'s lease was terminated.

841

Citation No. 2039612, issued on January 17, 1983,
charges the respondent with filing inaccurate employment
reports for the third and fourth quarters of 1982, namely
July through September, and October through December,
because the reports which were submitted indicated that
no employees were working at the facility, when in fact the
mine records showed that the mine was in operation during all
of these months.
In defense of Citation No. 2039607, Mrs. Slusher does
not dispute the fact that the facility was operating during
the months of July through August 1982. Her claim is that
the employees were on the payroll of Interwise, Inc., and
that the inspector who issued the citation assumed that they
were employees of Mineral Coal Sales, Inc. (Tr. 103).
Inspector Sayler testified that it made no difference who
the employees were employed by, and he suggested that since
the only information available to MSHA indicated that the
mine identification number was recorded in the name of the
respondent Mineral Coal Sales, Inc., any violation would be
charged to that mine operator.
Since Mrs. Slusher was shown
as the mine operator on MSHA's records, the violation was
properly issued to her company (Tr. 104). When asked whether
Mrs. Slusher's company, Mineral Coal Sales, Inc., would
still be issued and charged with the violation even if the
inspector knew as a matter of fact that another corporate
entity was operating the facility, Mr. Saylers answered in
the affirmative, and he indicated that the mine operator of
record would be held accountable by MSHA for any violations
(Tr. 104) .
In further defense of the reporting citations, Mrs. Slusher
stated that she filed the forms "under protest," in order to
achieve abatement and to avoid a possible $1,000 a day fine
for each day she failed to comply. She confirmed that she
wrote the words "none" on the forms to indicate that during
the reporting quarters in question she was not the mine
operator and in fact had no employees working for her company.
She furnished copies of these reporting forms, and they are
part of the record.
She also furnished copies of reports
she filed with the State of Virginia Employment Commission
indicating that she had "no employees after June 28, 1982,"
or for the quarters ending June 30, 1982, September 30, 1982,
or December 31, 1982 (exhibit R-5).
When asked whether the cited standard required a mine
operator to file accurate reports, MSHA's counsel conceded
that filing an inaccurate report does not, in and of itself,
constitute a violation (Tr. 108). Further, Inspector Saylers

842

conceded that while section 50.30 says nothing about the
accuracy of the reports filed, it was obvious that the
inspector who issued Citation No. 2039607 did so because he
believed that the mine was operational during the cited
quarters, and that the information that no employees worked
during this time period was simply not true (Tr. llQ).
And, at Tr. 192:
JUDGE KOUTRAS: Correct me if I'm wrong.
Your position seems to be in this case
as long as these activities are taking
place at the facility, meaning at the
physical place where they're taking place,
you're going to hold Mineral Sales responsible
for it?
MR. CRAWFORD:

The known operator.

JUDGE KOUTRAS: You keep using the word
known operator. Let's assume, again going
back to my hypothetical, that Hubbard was
the known operator and had an ID number.
Who would you hold accountable then on a
jurisdictional basis?
MR. CRAWFORD:

Well, both.

JUDGE KOUTRAS: You think Mr. Hubbard would
be in here complaining he doesn't do custom
preparation and all that business. He's
going to wake up one morning and be surprised
that he's a mine operator subject to this
Act.
Isn't that possible?
MR. CRAWFORD:

That's very possible.

MSHA's Part 45 regulations, particularly section 45.3(a)
does not mandate that an independent contractor obtain a mine
identification number.
It simply states that such contractors
may obtain a number from MSHA by filing certain information.
It would seem to me that in cases such as the ones at hand
where a contractor has a continuing presence on the mine site,
and has employees working around trucks and loaders weighing,
dumping, and stockpiling coal, MSHA would take the initiative
and require that contractor to stand up and be counted so
that any violations attributable to its operation will be
served directly on the contractor. On the facts of this case,
it could very well be that Hubbard is as much a "mine operator"

843

as the named respondent in these proceedings. However,
by continuing to ignore Hubbard's presence on the property
for "administrative convenience," and because its easier
to cite Mrs. Slusher, any safety infractions attributable
to Hubbard are simply ignored.
Inspector Saylers stated that under MSHA's Part 45
Independent Contractor regulations, if an independent contractor does not file the required report, the mine owner
is subject to a violation.
In short, the inspector's position
is that an operator such as Mrs. Slusher would be held
accountable for not reporting the number of employees that
an independent contractor has working on the mine site, and
the reason for this is that MSHA would have no information
as to the identification of any independent contractors who
may be present on the property (Tr. 116).
On the facts of this case, MSHA knows full well that
Hubbard Enterprises, Inc., is a separate corporate entity
engaged in coal sales on Mrs. Slusher's property. Simply
because Hubbard has failed to request a mine identification
number to facilitate MSHA's computer tracking of its operation,
MSHA acts as if Hubbard does not exist. For the lack of a
number, Hubbard may continue to operate with impunity, while
the respondent in this case is held accountable for failure
to file forms which have absolutely no rational relationship
to the safety or health of anyone on the property, including
Hubbard's employees, and the independent trucking concerns
which deliver coal to the property everyday.
I would venture
a guess that if a trucker is found to have defective brakes,
MSHA would cite the respondent because the trucker has no
mine identification number.
If Hubbard's employees are run
over by the trucks while the coal is being weighed, MSHA
would cite the respondent because Hubbard has no mine identification
number.
It occurs to me that MSHA has a positive responsibility
and a duty to insure that all corporate entities who are
present and working at any mine site are subjected to the
same enforcement standards as the owner of the property.
The practice of looking to the property owner as a matter of
administrative convenience is simply wrong, and MSHA should
address itself to this. Although MSHA's counsel did a fine
job as an advocate for MSHA's position, the following excerpt
from the trial transcript is an example of what I believe
to be MSHA's institutional attitude in cases of this kind
(Tr. 117) :
JUDGE KOUTRAS:
Is Hubbard Enterprises a
figment of Ms. Slusher's imagination? I
mean does the independent contractor have

844

to.put a sign up there to alert the
district off ice that an independent contractor is working at the facility?
MR. CRAWFORD:
I don't think so, but I
don't think it's the burden of the MSHA
inspector that has the responsibility for
health and safety to try to make that
determination when it's not always easy
to make that determination.
Price Slusher, Mrs. Slusher's brother-in-law, testified
that from July 1, 1982 to March 1, 1983, he was employed by
Interwise Corporation. He identified the owner of Interwise
as Mr. Sheley Mullins, and confirmed that Interwise had
two employees on its payroll. He also confirmed that Mr. Mullins
usually came to the property to instruct him as to his duties,
and his paychecks came from Interwise (Tr. 136). Mr. Slusher
also confirmed that Mineral Coal Sales has operated the
present loading facility since March 1983.
Mr. Slusher clarified the ownership of Interwise, and
she indicated that the company was operated by Kathy Crawford
and not by Sheley Mullins. She stated that at the time the
citati~ns were served, Interwise was operating the mine
(Tr. 151). When asked to explain why Interwise was never
previously mentioned in any of her prior protests, and why
the citations were issued with Mineral Sales' mine identification
number, Mrs. Slusher answered "you tell me" and "I don't know"
(Tr. 151). Mrs. Slusher explained further that Interwise
intended to purchase the facility but could not consummate
the final purchase because of certain financial problems.
Interwise operated the facility on a "trial basis" for a
period of six months, and she received a dollar a ton for
all coal processed by Interwise (Tr. 156), and took the
operation back on March 1, 1983, when the financing fell
through (Tr. 152). Mrs. Slusher also indicated that she
explained this to MSHA when she went to an assessment conference
at the Norton Office, but that MSHA took the position that
Mineral Coal Sales was responsible for the citations (Tr. 151).
She further explained that since Interwise was operating
the facility, she had no employment or payroll records, and
that is why she stated "none" on the reports in question
(Tr. 153) .
Mrs. Slusher confirmed that from March 1, 1983, to date,
she has operated the facility as Mineral Sales, Inc., and
has only had two employees, her nephew and brother-in-law
(Tr. 154). She also confirmed that Interwise had two employees
when it operated the facility, and Hubbard Enterprises
has two employees currently working on the property (Tr. 154).

845

Mrs. Slusher stated that at the time she was receiving
a fee of a dollar a ton from Interwise, the facility was
hers, and she candidly conceded that "Interwise in a sense
was substituted in the place of Mineral Coal at the point
as far as the loading was concerned." She confirmed that
from July 1, 1982, to March 3, 1983, Interwise "had the payroll
and exercised jurisdiction over the employees on the loading,
saw that the loading got done and that the loading unit or
the mobile was serviced and maintained.
They kept fuel
on the premises and did whatever was necessary to get the
car loaded." Hubbard Enterprises was also operating during
this period of time, and Mrs. Slusher stated that as the
owner of the property and facility, including the rail siding,
mobile tipple, and scales, she collected the rents from
her leases to Interwise and Hubbard.
In short, Mineral Sales,
Inc., owned the facility, and leased it to Interwise, who
did the loading of the coal, and to Hubbard, who tested it
(Tr. 157-158). She confirmed that she had no written contract
with Interwise, but would not have entered into such an
arrangement had she not thought Interwise would' not go ahead
and consummate the sale of the facility (Tr. 160).
Section llO(a) of the Act provides that a civil penalty
shall be assessed against any mine operator for violations
which occur in the mine.
Since I have concluded that the
named respondent in these proceedings is a mine operator within
the meaning of the Act, the respondent is legally responsible
for the citations issued. As correctly argued by the petitioner
in this case, the test in Elam is not based on whose employees
do what activities at a facility or what business entity
does what at the facility but what activities are performed
at the facility and for what purpose. Here, respondent
argues that the facility was operated by Interwise Corporation
at the time the citations were issued. However, the record
establishes that the respondent Mineral Sales Inc., was the
owner of the facility and simply permitted Interwise to
operate it on a "trial basis" pending the obtaining of
financing to purchase the facility . . Further, Mineral Sales,
Inc. was the record owner and operator of the facility, and
it seems clear to me that it may be held accountable and
responsible for any violations and citations which may be
issued by MSHA inspectors after inspection of the mining
activities taking place on the premises.
The reporting requirements of section 50.30, mandate
that each mine operator complete and submit a form to MSHA
in accordance with the instructions and criteria found in
section 50.30-1.
If an individual worked during any day of
a calendar quarter, the operator is required to file the
form.
In support of the violations, MSHA's counsel cites

846

part of the language found in section 50.30-l(a) (iii), in
support of his argument that whether the employees directly
work for the respondent Mineral Sales, Inc.; or another cooperator of the facility is irrelevant since it is only
necessary that employees work at the facility.
While I agree with counsel's argument, the criteria in
50.30-1, are not without ambiguity. For example, the last
sentence of the cited subsection left out by counsel does
not require the reporting of personnel in shops and yards
associated with other sub-units, and subsection (2) speaks
in terms of average number of persons working during the
quarter, and then speaks about employees on the payroll.
Taken in this context, and particularly where the terms
"persons," "individuals," and "employees" are used in
different subsections of the criteria, I can understand
the respondent writing in "none" when she believed that
Interwise was the corporate entity actually required to
file the forms in question. However, I consider this as
mitigating the violations, rather than an absolute defense.
Accordingly, both citations ARE AFFIRMED.
Docket No. VA 83-26
In this case, the respondent is charged with failing
to submit a noise survey for two employees who were working
at the mine.
The citation was issued on March 1, 1983,
the day on which Mrs. Slusher claims she took the operation
back from Interwise. Her defense is that the two employees
in question were not employed by her company, but by Interwise.
Mrs. Slusher argues that since she had no employees on her
payroll for the previous six months in question, she obviously
was not responsible to survey them (Tr. 120). Inspector Saylers
explained that since MSHA's records indicated that the mine
was reopened on July 1, 1982, and that it was operated by
Mrs. Slusher, a ~itation would be issued on that information
alone (Tr. 120). Mr. Saylers confirmed that when Inspector Bentley
issued this citation, he obviously assumed that the two
employees on the premises worked for Mrs. Slusher's company,
and that they needed to be surveyed for noise exposure (Tr. 120).
Mrs. Slusher's rebuttal is that since the two employees did
not work for her, she was not responsible for the noise survey
(Tr. 120). Mrs. Slusher explained further that in order
to avoid any section 104(b) withdrawal orders, she surveyed
the two employees, Price Slusher, her brother-in-law,
and Mike Slusher, her nephew, and she conceded that as of
the date of the issuance of the citation, they were her
employees, but prior to this date, they were not (Tr. 121).

847

Inspector Saylers testified that notwithstanding the
fact that the people working at the facility were not employed
by Mineral Coal Sales, Inc., they were stiil employed at a mine
where a loading facility was being operated, and since they
were employees of that mine, this activity was required to be
reported to MSHA (Tr. 77).
Inspector Saylers confirmed
that when he visited the facility on December 28, 1982,
he observed two men weighing coal, directing the trucks where
to dump the coal, operating front-end loaders, etc. (86).
From all of this. activity, he concluded that employees were
in fact employed at the facility in question.
Respondent's defense to the noise citation is rejected.
As indicated earlier in this decision, the respondent was
the record owner and operator of the facility and is liable
for the violation. Further, the language of section 71.803,
is that "each operator shall conduct periodic surveys of
the noise levels to which each miner in each surf ace installation
and at each surface worksite is exposed." Thus, any miners
who are present on the property and are exposed to potential
noise are required to be surveyed by the mine operator.
In
this case, that operator was the named respondent. Accordingly,
the citation IS AFFIR~ED.
'
Docket No. VA 83-44
In this case, the respondent is charged with a violation
of section 77.1705 because superintendent Donald Slusher did
not receive first aid training.
The citation was issued on
the day that Mrs. Slusher took the operation back from
Interwise, and her defense is that Interwise should have
provided the necessary training. Mrs. Slusher points out
that the citation was issued on the very day that she took
the operation back from Interwise. She concedes that
Price Slusher was in fact her employee on that date (Tr. 122).
Inspector Sayler testified that Price Slusher's last training
date was May 23, 1981, and that he had until December 30, 1982,
to finish the refresher course. Had the work "calendar year"
not been part of the cited standard language, he would have
had until May 23, 1982, to obtain the required training
(Tr. 122) •
Mr. Slusher testified as to his many years of experience
in the mining induatry, including the fact that he had taken
first aid training courses in the past.
I have no reason to
doubt this fact, and I have considered this as part of the
mitigation of the violation. However, the fact remains
that under MSHA's regulations, Mr. Slusher had not availed
himself of the required retraining for first aid. Accordingly,
the respondent's defense here is rejected.
I conclude that
as the operator of the facility the respondent is liable
for the violation, and the citation IS AFFIRMED.

848

Size of Business and Effect of Civil Penalties on the Respondent's
Ability to Continue in Business.
The parties have stipulated that the respondent carries
on a small operation and that the proposed penalties will
not adversely affect its ability to continue in business.
Apart from that, I conclude that the record here supports
a conclusion that the respondent operates a small, f~mily
oriented facility, and that the penalties imposed will not
adversely affect its ability to remain in business.
Gravity
None of the citations in these proceedings were found
by the Inspector to be "significant and substantial." I
conclude that they were all nonserious violations, and
petitioner has not established otherwise.
Negligence
While I have considered Mrs. Slusher's assertions that
she in good faith did not believe that she was a "mine operator"
at the time the violative conditions occurred, and that she
relied on the Commission's Elam decision as well as other
opinions from the Solicitor"i""'$C5ffice for that belief,
the violations have nonetheless been attributed to her as
the mine operator of record.
I have considered her defense
as mitigating the violations here, and I conclude that they
all resulted from a low degree of negligence.
Good Faith Compliance
MSHA's counsel candidly conceded that the respondent's
actions with respect to all of the citations issued in these
cases stem from the fact that she relied in the Elam decision
and believed that she was not subject to MSHA's enforcement
jurisdiction. Under the circumstances, counsel agreed
that this could be considered in mitigating the respondent's
good faith in complying with the law (Tr. 124-125). MSHA's
counsel stated his position as follows (Tr. 126):
MR. CRAWFORD: We're not trying to be
unreasonable.
I think we're trying to go
after the operator who controls the
operation, supervises and controls it. And
the point is through renting or through leasing,
whatever, she does control the operation there
on that facility.
She can deny Hubbard tomorrow,
as she said in her interrogatories.
They have
first right but not exclusive right and she does
control what happens there. And so in the name
of paperwork sometimes it's ridiculous to file

849

another paper on an independent contractor
in that type of circumstance. But I think
our main concern is obviously health and safety
and going to the party which we feel has control
over the operations. Now she could tell him
to get out tomorrow and bring someone else in
and we would have no control or no -- it wouldn't
be clear as to who controls that equipment and
that machinery.
I conclude that the respondent exercised good faith in
abating all of the violations in question once the citations
were issued. Petitioner's arguments that the respondent did
not show good faith in connection with citation 2039612,
because it resulted in the issuance of a section 104(b)
order after the inspector found that the respondent "made no
effort to abate" the reporting citation is rejected. Faced
with the threat of a $1,000 a day penalty for not capitulating
and admitting that she had employees on her payroll,
Mrs. Slusher finally submitted the reports under "protest."
Again, I find that these actions stemmed from her belief
that she was not subject to the Act. Taken in this light,
I cannot conclude that the citation is any different from
the others, nor can I conclude that the respondent should be
penalized additionally for exercising her rights.
History of Prior Violations
Respondent's history of prior violations is shown in
Exhibit P-A, an MSHA computer print-out listing seven
prior violations issued to the respondent for the period
April 20, 1981 through April 19, 1983. Four of the listed
violations are those in issue in these proceedings. The
remaining three are all section 104(a) "non-S&S" citations,
for which the respondent has made no payments. Under the
circumstances, I cannot conclude that respondent's history of
prior violations is such as to warrant any additional increases
in the penalties assessed by me in these proceedings.
Penalty Assessments
In Docket No. VA 83-39, I take note of the fact that
MSHA's proposal for assessment of civil penalty seeks a
civil penalty assessment for $90 for Citation No. 2039612,
issued on January 17, 1983, and this citation is listed as
"Exhibit A" to MSHA's proposal. However, that same exhibit
lists the citation as a section 104(b) Order, when in fact
the citation for which a penalty assessment is sought is
a section 104(a) "non-S&S" citation. A copy of this citation
is included as part of the pleadings, as well as a copy of
a section 104(b) Order, No. 2039617, dated January 24, 1983.
Under the circumstances, since this apparent discrepancy is
not further explained, for purposes of any civil penalty
assessment, I have considered only the section 104(a) citation,
No. 2039612, issued on January--r?;" 1983.

850

On the basis of the foregoing findings and conclusions,
and taking· into account the requirements of section llO(i)
of the Act, I conclude and find that the following civil
penalty assessments are appropriate for the citations which
have been affirmed:
Citation No.

Date

30 CFR Section

Assessment

2039607
2153470
2039612
2153469

12/28/82
3/1/83
1/17/83
3/1/83

50.30
71.803
50.30
77.1705

$20
20
20
20
$80

ORDER
Respondent IS ORDERED to pay the civil penalties assessed
by me for the violations in questions, in the amounts shown
above, and payment is to be made within thirty (30) days of
the date of these decisions and Order. Upon receipt of payment
by MSHA, these proceedings are dismissed.

A.~
Distribution:
James B. Crawford, Esq., U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd., Rm. 1237-A, Arlington, VA
22203 (Certified Mail)
Bobbie S. Slusher, President, Mineral Coal·Sales, Inc., P.O.
Box 729, Norton, VA 24273 (Certified Mail)

/slk

851

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

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

80204

APR 6 1984

CIVIL PENALTY PROCEEDING
Docket No. WEST 81-172-M
A.C. No. 04-04401-05002
Camp Connell Rock Quarry Mine

CLAUDE C. WOOD COMPANY,
Respondent
DECISION
Appearances:

Theresa Fay Bustillos, Esq., Office of the Solicitor
U. S. Department of Labor, San Francisco, California
for Petitioner;
Erv Rifenburg, Claude C. Wood Company,
Lodi, California, pro se.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and Health
Administration, (MSHA), charges respondent with violating various
safety regulations 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 was held
on April 13, 1983 in Stockton, California.
Petitioner filed a post trial brief and respondent stated its
contentions in its closing argument.
ISSUES
The issues are whether respondent violated the regulations and,
if so, what penalties are appropriate.
STIPULATION
At the commencement of the case the parties stipulated as
follows:
1. The Claude C. Wood Company is, and at all relevant times
hereinafter, was the owner and operator of the Camp Connell Rock
Quarry Mine.
2. The Claude C. Wood Company and the Camp Connell Rock
Quarry Mine are subject to the jurisdiction of the Mine Safety and
Health Administration (hereinafter referred to as MSHA).

852

3. The Camp Connell Rock Quarry Mine is a rock quarry mine
which produces crushed stone.
4.

The Administrative Law Judge has jurisdiction of this case.

5. Copies of the subject citations, terminations and alleged
violations in issue are authentic and may be admitted into evidence
for the purpose of establishing their issuance by MSHA but are not
admitted into evidence for the purpose of establishing the truthfulness or relevancy of any statement asserted therein.
6. True and correct copies of the citations and terminations
were served upon the representatives of the operator.
7.

All alleged violations were abated in good faith.

8.
Imposition of the penalty will not affect the operator's
ability to continue in business.
9. During the two year period prior to June 25, 1980 (the date
of the issuance of the citations) the Claude C. Wood Company had been
assessed one violation.
10. The Claude C. Wood Company is a medium $ize operator. The
Claude C. Wood Company operates at approximately 16,002 manhours per
year. At the time of the issuance of the citation, the Camp Connell
Rock Quarry operated at approximately 6,000 manhours per year.
11. At the time of the issuance of the citation, the Camp Connell
Rock Quarry Mine had approximately 6 employees.
Citation 380433
This citation alleges a violation of 30 C.F.R. 56.14-1, which
provides:
Guards
56.14-1 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.
The pivotal issues presented here are whether the pinch points
of the head pulley were unguarded.
If so, could those pinch points
be contacted by workers who might be injured by that condition.

853

The evidence of both parties as it relates to this citation
is unclear.
Accordingly, it is necessary to extensively review
the record.
MSHA's evidence: . During the inspection MSHA Inspector
McGarrah was accompanied by John Rosen, an MSHA lab technician,
and Richard Ashby, the plant manager (Tr. 13, 16-19).
The plant has three rock crushers.
They are known as the
primary, the secondary and the final.
The final crusher, known by
the brand name of Kue-Ken, reduces the rock to certain dimensions.
From the Kue-Ken the rock goes onto a short conveyor belt which
then spills it onto a stacker conveyor belt (Tr. 21).
The plant
manager identified the place where the citation was issued as being
"the first conveyor belt coming from the Kue-Ken crusher" (Tr. 384 0) •

The day after the citation was issued Rosen made a sketch
of the Kue-Ken crusher.
He and the inspector "stood there" and
discussed it (Tr. 21-22).
The sketch was made primarily to consider
dust problems at the site.
The stacker conveyor belt was setting on a short stand near
the ground and the head pulley was close by (Tr. 24).
The first
conveyor belt came from just above ground level up to almost
chest high, a distance of about four feet (Tr. 25).
The head
pulley was a few inches larger than the two-foot wide belt
(Tr. 2 6) •
In his direct examination, the inspector testified the head
pulley was unguarded and within easy reach of anyone passing by
or working in the area (Tr. 27).
But when called as a rebuttal
witness he amplified his testimony by stating that a frame on
the conveyor would partially obstruct a person from contacting
the pinch points (Tr. 211).
The rebuttal also developed that
there was a guarded V-belt drive between the motor and the gear
reducer (Tr. 214).
In addition, a worker in a crouched position
would have to go around the guarded V-belt behind the speed
reducer to get his hand into the head pulley (Tr. 215).
At one time the MSHA inspector observed a laborer shoveling
rock on the bottom ·side of the stacker.
But at that point the
laborer was on the opposite side of the head pulley and in no
danger.
In addition to the laborer, the inspector also observed
the plant operator near the area of the unguarded head pulley
(Tr . 2 7 , 2 8 ) .
These particular head pulleys do not need to be cleaned.
Possibly it is necessary to shovel the areas around them whenever
rocks spill (Tr. 28).

854

If an employee was shoveling rock from underneath the head
pulley he would be close enough, due to the lack of a guard,
to catch a shovel or piece of clothing. He could be between
several inches to several feet away (Tr. 29-30). The inspector
observed some spill but it was not an excessive amount (Tr 29).
It was obvious that the head pulley lacked a guard (Tr. 30).
Respondent's witness, Wayne Renaud, indicated this portable
plant had been used in six or seven different locations. It has
been inspected by MSHA and OSHA each time it has been set up
(Tr. 122, 123). The citation issued here identified this as
the No. 1 conveyor from the Kue-Ken crusher.
You cannot get into this area unless you crawl on your hands
and knees (Tr. 126, 151). A 48 inch by 48 inch stand prevents
access to the head pulley (Tr. 150). The company has never been
cited for an unguarded head pulley at the location circled on
exhibit P3 (Tr. 126).
Respondent's witness Rifenburg indicated it would be
"extremely difficult'' to reach the head pulley circled in red
on exhibit P3 (Tr. 184). According to Rifenburg the moving
machine parts are protected by the guard that covers the drive
belt to the speed reducer (Tr. 191).
Discussion
I credit respondent's evidence concerning this citation.
Respondent's personnel have assembled this equipment on numerous
occasions. Further, they are constantly working with these
conveyors.
On the other hand, after carefully reviewing the Secretary's
evidence, I conclude that it is not persuasive. In his direct
testimony the inspector indicated that a worker could readily
come into contact with the unguarded pinch points. But in his
rebuttal testimony he indicated the access would be, at least
partially, blocked by a frame on the conveyor (Tr. 211). The
witness drew an arrow to what he calls the unguarded pinch points
as shown on exhibit P3. But the drawing itself fails to show
the lack of a guard.
In addition, the oral evidence does not
develop the nature, the dimension, and scope of the unguarded
area. Conversely, the evidence does not develop how a worker
could contact the pinch points .
. Respondent's witnesses Renaud and Rifenburg both establish
that this pinch point was not accessible. Their evidence is confirmed when the inspector, in rebuttal, appears to indicate that
to reach the pinch points it is necessary to reach underneath the
gear drive and the bottom of the conveyor (Tr. 215).

855

In sum, I conclude that the pinch points of the head pulley
were guarded by location. Since a worker could not contact them,
it follows that such a worker could not be injured.
The Secretary's post trial brief cites John Peterson,
2 FMSHRC 3404, (1980), and Schneider's Ready Mix, Inc., 2 FMSHRC
1092, (1980), to the effect that it is not a defense to establish
that the likelihood of an accident is remote.
I agree. But in
this case a decision upholding the citation would, in my view,
rest in speculation.
It is true that the inspector observed a worker in close
proximity, but he also indicated the worker was "in no danger
where he was working" (Tr. 28).
The Secretary further cites his evidence that if an employee
was shoveling rock from this location he would be close enough
to catch a shovel or piece of clothing (Tr. 29). True, the
witness develops that point but I find from the evidence that
the worker did not have access even at that location.
In short,
I cannot ignore the inspector's testimony establishing a lack of
access.
Exhibit P3, drawn by MSHA technician Rosen, the day after
this citation was issued, fails to depict that the head pulley
was unguarded.
Further, the exhibit fails to show the obstruction
which prevented partial or full access to the pinch points.
The exhibit, in combination with the oral testimony, fails
to prove a violation.
In sum, I conclude that no violation has been established
and the citation should be vacated.
Citations 380436 and 380437
These citations allege violations of 30 C.F.R. 56.6-20(e)
at two locations. The cited standard provides:
56.6-20
(e)

Mandatory.

Magazines shall be:

Electrically bonded and grounded
if constructed of metal.

MSHA's evidence indicates Inspector McGarrah inspected
respondent's 8 by 8 by 10 (foot) powder magazine. The metal
magazine was constructed with a double hinge door (Tr. 58, 59).

856

On the day of the inspection blasting agents, dynamite and prill
were stored inside the magazine (Tr. 59).
It was one-third full
(Tr. 61).
The inspector and the plant manager looked around and
raked the grass but they could not find any bond or ground rod
for the powder magazine (Tr. 69, 70).
The detonator magazine at the site was likewise constructed of metal, setting on the ground, and about 80 percent
full (Tr. 113, 114). Although the inspector did not measure it,
the magazine measured approximately 3 feet in all dimensions
(Tr. 114). The inspector and the plant manager checked but they
could not find an electric ground rod leading from the detonator
magazine (Tr. 117).
A magazine is electrically grounded when an 8 foot copper
rod is driven into the ground. And the rod is connected to the
metal magazine with a heavy copper wire (Tr. 69). Copper is used
because it furnishes a path of least resistance to channel any
electricity into the ground (Tr. 69-71).
In the absence of a ground, lightning or a stray electrical
current could ignite the powder in the magazine (Tr. 72).
Respondent's witness Rifenburg indicated that the powder
magazine was in compliance because it was grounded by skid contact
when resting on the decompressed granite mineral soil (Tr. 180182).
In contrast, a non-mineral soil does not act as a conduit
(Tr. 182) .
Discussion
Respondent contends that its metal powder magazines were
sufficiently and legally grounded when they rested on the organic
soil.
As the Secretary notes in his brief, this contention was
addressed by Judge John A. Carlson in Gallagher and Burke, Inc.,
2 FMSHRC 3399, (1980).
In the cited case Judge Carlson ruled
that "a metal magazine merely resting on the earth is not
'grounded'.
The term 'grounded' has a commonly accepted meaning
when applied to electrical safety." 2 FMSHRC at 3401. Further,
the standard for explosives magazines ..•
expressly mandates grounding; and we must
assume that that means adherence to common
grounding practice. Had the drafters of
the standard believed that metal magazines
needed no grounding beyond simply resting
on the earth, they would not have mentioned
grounding at all.
2 FMSHRC at 3401.

857

I concur in Judge Carlson's views.
380437 should be affirmed.

Citations 380436 and

Citations 380438 and 380439
These citations allege violations of 30 C.F.R. 56.6-5 at
the two magazines. The cited standard provides:
56.6-5 Mandatory. Areas surrounding
magazines and facilities for the storage
of blasting agents shall be kept clear
of rubbish, brush,' dry grass or trees
(other than live trees 10 or more feet
tall), for a distance not less than
25 feet in all directions, and other
unnecessary combustible materials for
a distance of not less than 50 'feet.
MSHA's evidence proves that this wooded area' had dry brush
and grass on all sides and within 25 feet of the powder magazine
(Tr. 62, 63, 65). The grass varied in height up to 2 feet.
In addition, dry brush had blown around the magazine (Tr. 63,
104). A fire in this immediate vicinity could cause the
blasting agents in the magazine to explode and cause death or
serious injuries (Tr. 66, 67).
The operator should have known of this condition (Tr. 68).
During the hearing the parties stipulated that all of the
evidence relating to the powder magazine also applied to the
detonator magazine (Tr. 112).
Respondent's witness Rifenburg does not deny the presence
of brush and dry grass in the area. But he stated that the new
locations of the magazines, 25 feet away, are equally subject ~o
the hazards of a fire in this forest (Tr. 176, 177, 181, 182).
Discussion
The uncontroverted evidence establishes violations of the
regulation.
These violations were abated by moving the magazines.
There is no grass or dried brush in their new locations as shown
in exhibits R6, Ra,· RlO and Rl4.
I agree with respondent's position that these magazines
are subject to a fire hazard from sources other than those in
the immediate vicinity (Tr. 218). However, I decline to rule
that, as a matter of law, MSHA's regulation has no relation
to safety. Respondent's arguments relate to the imposition of
a penalty rather than to whether the regulation was violated.

858

Citations 380438 and 380439 should be affirmed.
Citation 380440
This citation alleges a violation of 30 C.F.R. 56.6-20(f),
which provides:
56.6-20 Mandatory.
(f)

Magazines shall be:

Made of nonsparking materials on
the inside, including floors.

The MSHA inspector observed that boxes of powder were
stacked on a heavy steel wire on the floor of the powder magazine
(Tr. 73). The bolts and steel heads all appeared to be of a
sparking material. They had not been covered to make them
non-sparking (Tr. 74). Nails had been driven into the walls
(Tr. 74). A spark could ignite the powder (Tr. 74-76).
The inspector had not seen steel nails and bolt heads in
powder magazines (Tr. 75).
Respondent's witness Rifenburg states that.the sparking
regulation is "left over from black powder days." Further,
that due to a change in technology, the regulation no longer
applies (Tr. 178).
Witness Rifenburg further filed a copy of Title 27, Code
of Federal Regulations, Part 181, containing regulations dealing
with commerce in explosives and published by the United States
Department of the Treasury.
I take official notice of such
federal regulations.
Discussion
Under the regulations promulgated by the United States
Department of the Treasury, it is true that blasting agents,
such as ammonium nitrate fuel oil, may be stored in Type 5
storage facilities, 30 C.F.R. § 183(e). It is further true
that while non-sparking materials are required in Type 1 through
Type 4 storage, such materials are not required in Type 5 storage
facilities, 30 C.F.R. 181, 187, et seq. However, the MSHA
regulations take precedent over the Treasury Department regulations.
I note the Treasury regulations yield when they state, in part,
that "[T]he storage standards prescribed by this subpart confer
no rights or privileges to store explosive materials in a manner
contrary to state or other law," 30 C.F.R. 181; 181.

859

Respondent's contentions basically address the wisdom of
the standard, an issue discussed, infra. Further, respondent's
contentions concern gravity and negligence. These are issues
to be considered in assessing a penalty.
MSHA may, under its rulemaking power, wish to reconsider
its regulation.
But since the facts establish a violation, I
am obliged to affirm the citation.
Citations 380442 and 380443
These citations allege violations of 30 C.F.R. § 56.6-20(i)
which provides that:
56.6-20

Mandatory.

Magazines shall be:

(i) Posted with suitable danger signs
so located that a bullet passing
through the face of the sign will
not strike the magazine.
MSHA's inspector testified the powder magazine was not
posted with any danger signs. The plant manager indicated that
he did not know of any such signs and, although they searched
in each direction, they did not find any signs (Tr. 76, 77).
One purpose of such signs is to warn hunters they are in
a danger area (Tr. 77, 78).
Respondent's witness Rifenburg indicated the company posts
danger signs in public access areas during any blasting. All
radio transmissions are prohibited within a certain area. This
is a United States Forest Service regulation (Tr. 179, 204).
Respondent asserts that its mine is within the confines
of Stanislaus National Forest. Respondent's Exhibit 12, a
map of the forest, supports respondent's assertion that it may
be difficult to keep the public off of its property. Therefore,
being unable to prevent public access they try to camouflage
the magazines to keep them out of the public's eye (Tr. 219-220).
Conversely, the posting signs MSHA requires can only serve to
alert the public to such storage facilities. Witness Rifenburg
states that a principal concern of his company and its industry
is the theft of explosives (Tr. 218).
Respondent basically asserts that in view of its unique
location in the national forest, it would be wiser not to
enforce this regulation.

860

Respondent's contentions are rejected. The Commission views
the regulatory scheme of the Act as being premised upon the
proposition that compliance with the safety standards adopted
by the Secretary protects the nation's miners, Penn Allegh
Coal Company, Inc., 3 FMSHRC 1392, 1399, footnote 10 (1981).
To overturn this regulation would in effect question the
wisdom of the Secretary's standard.
I find no decisions by
this Commission directly discussing the doctrine,,but a long
line of OSHA Review Commission cases reiterate that principle.
In short, they do not consider it to be a portion of their
adjudicatory function to question the wisdom of a standard.
Cornish Dress Mfg. Co., BNA 3 OSHC 1850, CCH 1975-76 OSHD
para. 20, 246 (No. 6765, December 23, 1975); The Budd Company,
7 OSAHRC 160, 165, BNA 1 OSHC 1548, 1551, CCH 1973-1974 OSHD
para. 17,387 (Nos. 199 and 215, March 8, 1974, aff'd. 513 F 2d
201 (3d Cir. 1975). I adhere to that doctrine.
Citations 380442 and 380443 should be affirmed.
Civil Penalties
The six criteria for assessing a civil penalty are set
forth in 30 U.S.C. § 820(i).
The stipulation indicates respondent was assessed a single
violation during the two years prior to these citations. The
stipulated facts confirm that respondent is a medium-sized
operator.
The imposition of a penalty will not affect the
operator's ability to continue in business.
In those citations
that are affirmed, I conclude the operator was negligent
because the violative conditions could have been known to the
company. Respondent demonstrated good faith in rapidly abating
after notification of the violations.
In relating to gravity,
I conclude that the penalties proposed for Citations 380436,
380437 (electrical bonding), 380438 and 380439 (dry brush) are
proper. On the other hand there appears to be no hazard and
hence no gravity involved in connection with Citation 380440
(sparking material). That citation should be assessed at $1.00.
There is a certain ambivalence relating to the gravity of
posting the magazines.
I believe the proposal for such violation should be reduced by one half.

861

The final computation is summarized as follows:
Citation

Original
Assessment

380433
380436
380437
380438
380439
380440
380442
380443

$ 26
18
18
28
28
44
18
18

Disposition
Vacated
$ 18
18
28
28
1
9

9

Brief
The Solicitor has filed a detailed brief which has been
most helpful in analyzing the record and defining the issues
in the case. However, to the extent that such brief is
inconsistent with this decision, it is rejected.
ORDER
Based on· the facts found to be true in the narrative
portions of this decision and based on the conclusions of law
as stated herein, I enter the following order:
§

1. Citation 380433 for the alleged violation of 30 C.F.R.
56.14-1 and all proposed penalties therefor are vacated.

2. The following citations are affirmed and penalties
are assessed as stated after each such citation:

Citation

30 C.F.R.
Section
Violated

Penalty

380436
380437
380438
380439
380440
380442
380443

56.6-20 E
56.6-20 E
56.6-5
56.6-5
56.6-20 F
56.6-20 I
56.6-20 I

$ 18
18
28
28
1
9
9

3. Respondent is ordered to pay the sum of $111 within
40 days of the date of this order.

hn~.M,/~
Administ~;;
Law Judge

862

Distribution:
Theresa Fay Bustillos, Esq., Office of the Solicitor, United States
Department of Labor, 11071 Federal Building, 450 Golden Gate Avenue,
San Francisco, California 94102 (Certified Mail)
Mr. Erv Rifenburg, Construction Manager, Claude C. Wood Company,
P. o. Box 599, Lodi, California 95251 (Certified Mail)

/ot

863

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

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

APR 6 1984

CIVIL PENALTY PROCEEDING
Docket No. WEVA 83-244
A. C. No. 46-01283-03521
Hampton No. 3 Mine

v.

WESTMORELAND COAL COMPANY,
Respondent
O;RDER OF DISMISSAL
Before:

Judge Steffey

Counsel for the Secretary of Labor filed on March 26, 1984,
in the above-entitled proceeding a motion to withdraw the petition for assessment of civil penalty filed in Docket No. WEVA
83-244 on the ground that the violation of 30 C.F.R. § 75.305,
for which a penalty was being sought, was alleged in Citation
No. 2037679 which has been vacated as having been issued in
error.
The motion for permission to withdraw explains that a prior
violation of section 75.305 had previously been written and respondent had been allowed to abate that alleged violation in a
manner which was still being followed at the time the instant
violation of section 75.305 was written citing respondent for
the identical violation which had previously been abated in a
manner which was satisfactory to MSHA at that time. It is believed that the instant violation was written in error since respondent was still adhering to the procedures which had been
previously approved. In such circumstances, I find that good·
cause has been shown to warrant granting of the motion to withdraw.
WHEREFORE, it is ordered:
The motion to withdraw is granted, the petition for assessment of civil pen~lty is deemed to have been withdrawn, and all
further proceedings in Docket No. WEVA 83-244 are dismissed.

~e.Jz.~

Richard c. Steff*~
Administrative Law Judge
Distribution:
William M. Connor, Esq., Office of the Solicitor, u. S. Department of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
F. Thomas Rubenstein, Esq., Westmoreland Coal Company, P.
Drawer A & B, Big Stone Gap, VA 24219 (Certified Mail)
yh

864

o.

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

APR 10 1984

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

. CIVIL PENALTY PROCEEDING

v.

. Rockline Inc., Pit & Plant

ROCKLINE, INCORPORATED,
Respondent

:

Docket No. WEST 81-339-M
A.C. No. 35-03057-05001 R

DECISION
Appearances:

William w. Kates, Esq., Office of the Solicitor,
U.S. Department of Labor, Seattle, Washington,
for Petitioner~
Mr. Carl Linebarger, President, Rockline, Inc.,
The Dalles, Oregon,
Pro Se.

Before:

Judge Vail

STATEMENT OF THE CASE
This civil penalty case is brought under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq. (Supp. III
1979)("the Act"). Petitioner seeks an order assessing a civil
monetary penalty against the respondent for allegedly refusing to
allow an authorized inspector of the Mine Safety and Health
Administration C"MSHA") onto the property where respondent was
operating its portable crusher. In its answer, respondent
alleges, in effect 1 that there was no violation of the Act.
A hearing in this case was initially set for July 13, 1982,
but was continued at the request of respondent's counsel due to
his illness. The case was reset for September 20, 1983, in
Portland, Oregon, where respondent's President, Carl Linebarger,
appeared, without counsel, and stated that he would represent the
respondent in this matter as he did not wish to incur the
additional expense of legal fees. Both parties waived the right
to file briefs.
FINDINGS OF FACT
1. Rockline, Incorporated C"Rockline"), is a corporation
for which Carl Linebarger is the president and majority stockholder.

865

2. Rockline is a small portable crushing operation
employing four employees and Linebarger. On April 22, 1981, the
crusher and 6ther equipment used in mining rock was located on
land leased from the Port of the Dalles, Oregon. The operation
had been located at this site for approximately two years. In
addition to the crusher located there, respondent had constructed
a large building and moved in a trailer to be used as an off ice.
3. Respondent has no history of a prior MSHA inspection or
violations at the site involved in this case. However,
respondent had experienced a prior MSHA inspection and received
violations at a different location in 1979.
4. At approximately 9:30 in the morning, on April 22, 1981,
MSHA inspector Robert Funk arrived.at respondent's mine site for
the purpose of conducting a safety and health inspection. He
drove through an entrance, past the trailer (office), and a blue
building located near the entrance. He continued down to where
the rock crusher was located. A truck was being loaded at the
crusher when Funk drove up. A conversation was had between Funk
and Linebarger at the crusher site and then they drove in their
separate vehicles back to an area near the trailer. Linebarger
got out of his truck and told Funk he would not allow him to
inspect the operation at this location.
5. Funk returned to his office and issued citation No.
587744 to respondent on April 22, 1981, alleging a violation of
103(a) of the Act. ~/
DISCUSSION
At the hearing, MSHA inspector Funk described the events
that led up to the issuance of the citation in this case. He
testified that after arriving at respondent's mine at about 9:30
a.m. on April 22, 1981, he drove his government vehicle through
the entrance past a large blue building on the right and a
trailer located on the left of the road. He continued on this

!/

Section 103(a) provides in pertinent part:

Authorized representatives of the Secretary ••• shall make
frequent inspections and investigations in coal or other mines •••
In carrying out the requirements of this subsection, no advance
notice of an inspection shall be provided ••. [and the authorized
representative] shall have a right of entry to, upon, or through
any ••• mine.

866

road approximately 300 yards to where the crusher was located.
The vehicle he was driving had United States government license
plates and markings on the door. When he arrived at the crusher,
a truck was being loaded. Linebarger motioned Funk to park his
car near his pickup which he did. Funk got out of his car and
walked over to Linebarger and attempted to introduce himself and
present his card. Funk testified that Linebarger started yelling
at him and asking Funk if he "could read the signs" and that he
was "yellingi• and "cussing" MSHA and the government in general
<Transcript at 19).
Linebarger told Funk to follow him up to the off ice. After
arriving at the trailer, again Linebarger raised his voice and
said, "The only reason I don't shoot you right where you stand
is, I want to take four or five of you government S.O.B.'s with
me." Funk stated he thought there was a rifle in a rack on the
back window of Linebarger's pickup (Tr. at 22). Then Linebarger
stated that the only way he would allow an inspection would be if
he (Funk) was accompanied by a U.S. Marshall (Tr. at 23). Funk
got back in his car and left the premises.
Linebarger denies that he made the above statements except
as to the need for Funk to bring a U.S. Marshall to inspect (Tr.
at 39, 55). Linebarger testified that there was a 4 x 8 foot
sign posted near the office which read "Salesmen, Visitors,
Please Apply at Office. Do not Enter Shop or Work Area Without
Permission." (Exhibit R-1).
Linebarger testified that when Funk arrived at the crusher,
he parked his vehicle in front of the crusher blocking the access
of trucks to be loaded and requiring the crusher to be shut down
(Tr. at 54, 55). Linebarger told Funk to move his car and to
follow him up to the office. He stated that he explained to Funk
that Linebarger had rules and regulations to go by for the health
and safety of his employees and the public and if Funk wouldn't
follow them, he (Linebarger) would refuse to allow Funk to
conduct an inspection unless he was accompanied by a U.S.
Marshall (Tr. 38, 39).
Respondent submitted evidence of prior inspections at
different plants in 1974 by Mining Enforcement and Safety
Administration ("MESA"). He had received several citations in
which reference was made that, "The cooperation of all persons
contacted during the inspection.was greatly appreciated" (Exh.
R-8). It is Linebarger's position that he had been inspected in
the past and always cooperated with the enforcement agency.

867

The evidence further revealed that the respondent had been
inspected by MSHA in 1979 at a different location and received
six citations which were all abated (Exh. P-2>.
Although there is conflicting testimony in this case as to
what was said by the parties on the date of the attempted
inspection, I find there is no dispute that the inspector was
refused the opportunity to inspect respondent's operation. This
is an obvious violation of section 103(a} of the Act which
specifically provides that frequent inspections shall be made
without a requirement of advance notice and that the inspectors
have a right to entry to, upon, or through any mine. On June 17,
1981, the United States Supreme Court held that the Mine Act
provides for nonconsensal warrantless inspections and that such
inspections do not violate the Fourth Amendment. Donovan v.
Dewey, 49 U.S.L.W. 4748 (U.S. June 17, 1981), No. 80-9011, ~~
U.S.
(1981). In Secretary v. Waukesha Lime and Stone
Company, Inc., 3 FMSHRC 1702 (July 6, 1981), the Commission
decided that a refusal to permit an inspection is a violation of
the Act for which a penalty must be imposed.
In light of the foregoing, I find a penalty is warranted in
this case. The respondent does not deny that he refused the
inspector access to conduct an inspection on his premises but
instead argues that the inspector should have read the posted
signs and stopped at the off ice prior to driving down to the
crusher. I am not persuaded that the respondent's position is
supported by the facts in this case. The inspector denies seeing
the sign alleged to have been erected at the entrance and as
evidenced by photos submitted at the hearing (Exhs. R-1, R-2, R-3
and R-4). It is difficult to believe these signs were not
noticed by the inspector, if they were actually at their alleged
location near the entrance to the property. However, I have
carefully considered the conflicting testimony of inspector Funk
and Linebarger regarding the signs and conversations on April 22,
1981. Based upon my observation of the witnesses at the hearing
and the evidence submitted, I find that the testimony of the
inspector to be more credible than that of Linebarger. Even
assuming, however, that the signs were located as alleged by
respondent, entry onto the premises by the inspector is not to be
predicated upon acquiring prior approval. This is a very small
operation and the crusher was located near the entrance. It is
reasonable for the inspector to drive to that location to observe
the operation. It does not appear reasonable and rational for
the respondent to refuse an MSHA inspection, if the only basis is
that the inspector may have parked in the wrong area, as alleged
by Linebarger, or driven by signs directed to "Visitors and
Salesmen".
PENALTY
The petitioner seeks a penalty against respondent of
$1,000.00 based upon a special assessment. For some unexplained
reason, the petitioner's records indicated that the respondent

868

had no history of prior inspections or citations.' However, at
the hearing, evidence was submitted that there were six prior
citations issued and abated as a result of an inspection by MSHA
of the respondent at a different location (Exh. P-2). This fact
does not indicate a pattern of past behavior on respondent's part
to prevent MSHA inspections. Also, there is evidence of
respondent's cooperation with MESA, the prior mine safety and
health enforcement agency. These facts would persuade me that
the circumstances in this case, although unjustified, are not
evidence of a pattern of behavior or attitude suggesting the
imposition of a penalty in the amount suggested by the petitioner.
I find that a penalty of $500.00 is reasonable in this case.
CONCLUSIONS OF LAW
1. The respondent is subject to the jurisdiction of the Act.
The undersigned Judge has jurisdiction over the parties and
subject matter of these proceedings.
2. Respondent violated section 103(a) of the Act as alleged
in Citation No. 587744.
4.

A reasonable penalty in this case is $500.00.

Citation No. 587744 is AFFIRMED and respondent is ordered to
pay a civil penalty of $500.00 within 40 days of the date of this
decision.

~c~
VirgtJ/E. Vail
Administrative Law Judge

Distribution:
William W. Kates, Esq., Office of the Solicitor
U.S. Department of Labor, 8003 Federal Building, Seattle,
Washington 98174 (Certified Mail)
Mr. Carl Linebarger, President, Rockline, Inc., P.O. Box 758
The Dalles, Oregon 97058 (Certified Mail)
/blc

869

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

.: CIVIL PENALTY PROCEEDINGS
:
:

v.
MAGMA COPPER COMPANY SAN MANUEL DIVISION,
Respondent

APR 10 1984

Docket No. WEST 81-399-M
A.C. No. 02-00842-05014
Docket No. WEST 83-123-M
A.C. No. 02-00151-05504

: San Manuel Mine
.

DECISION
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California,
for Petitioner;
N. Douglas Grimwood, Esq., Twitty, Sievwright &
Mills, Phoenix, Arizona,
for Respondent.

Before:

Judge Vail

STATEMENT OF THE CASE
The above cases were consolidated for hearing and decision
since they involve the same parties and mining division. One
citation is included in Docket No. WEST 83-123-M, and one is
involved in WEST 81-399-M. Pursuant to notice, the case was
heard in Phoenix, Arizona, on March 7, 1984. Both parties waived
filing posthearing briefs. Based on the entire record, and
considering the contentions of the parties, I make the following
decision.
FINDINGS AND CONCLUSIONS COMMON TO BOTH
DOCKET NUMBERS
1. At all times pertinent to these proceedings, respondent
was the owner and operator of an underground copper mine and mill
in Pinal County, Arizona, known as the San Manuel Division, Magma
Copper Company.
2.
Respondent is subject to the provisions of the Federal
Mine Safety and Health Act of 1977 in its operation of the
subject mine and mill, and I have jurisdiction over the parties

81'0

3. Respondent is considered a large mining company with a
moderate history of past violations. It was stipulated by the
parties that any penalty imposed as a resu.lt of these two
citations should neither be increased or decreased because of
this history.
4. Payment of the proposed penalties in these two cases
would not affect the respondent's ability to remain in business.
5. The two citations involved in this matter were issued on
the dates indicated on said citations.
6. In the case of each citation involved herein, the
violation was abated promptly and in good faith.
7. Whether a cited violation is properly designated as a
significant and substantial violation is per ~ irrelevant to a
determination of the appropriate penalty to be assessed. The
penalties hereinafter assessed are based on the criteria in
section llOCi) of the Act.
Docket No. WEST 83-123-M
Citation No. 2086656, issued May 17, 1983, charges a
violation of 30 C.F.R. § 57.11-1 1/ because walkways between No.
1 and 5 manways in panel 2 had holes in their surfaces that
created a hazard of falling to miners traveling to their work
place.
MSHA inspector Arthur Swanson testified that undercut miners
going to their working areas and supply trammers carrying
material to the working areas would use these travelways
(Transcript at 10). Some logging (planks) had been installed
over several holes to provide places for miners to walk but where
there was only one plank 12 inches wide, the inspector was of the
opinion that a miner carrying material to the working areas could
trip and fall possibly breaking a leg. The holes were described
as being an average of two feet deep (Tr. at 14).
Respondent contends that undercuts, as involved in this
case, create an extremely difficult place to work as this is a
transitory condition. Usually there are rough rocks, timbers,
hoses and other items running through the area. Respondent did
not deny the conditions as described by the inspector, or the
photographs submitted as exhibits, but argued that it does not
constitute an access problem as contemplated by the statute.

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

871

I find that there was a dange~ous situation created by the
placing of one 12 inch logging for walkway over the hole that is
two feet deep. The miners carrying material would have a
difficult time balancing their loads and walking across this
board. Placing additional boards in these areas makes sense and
is certain to provide much safer access.
I conclude that a
violation was shown which was not significant and substantial.
The condition was corrected and additional planking placed over
the holes shortly after they were brought to respondent's
attention.
I conclude that an appropriate penalty for this
violation is $50.00.
Docket No. WEST 81-399-M
Citation No. 599945, issued March 25, 1981, charges a
violation of 30 C.F.R. § 57.9-3 2/, because the brakes were not
working on an Atlas locomotive, Serial No. 3596, in the ball mill
section of the respondent's rod mill.
The evidence shows that the cited piece of equipment is a
battery powered locomotive traveling back and forth on level
tracks for a distance of approximately 1600 feet.
The locomotive
pulls cars carrying balls used in the grinding process of the
mill. One locomotive pulls four to five cars on approximately
six to eight trips during a 16 hour period.
The train would not
travel in excess of 5 miles per hour.
Inspector Swanson testified that he observed a sign on the
battery motor of the locomotive reading "caution, no brakes."
When asked the question of how long the locomotive had been
without brakes, a member of the mine's managment stated, "approximately two weeks" (Tr. at 22).
Jerrold Semmens, respondent's assistant general mill
foreman, testified that he was aware of the fact that the
locomotive was being operated without brakes. However, he
stated, "The individual that was operating the train -- was told
to operate at a slow speed, and if it was needed to stop the
train immediately, to plug it; in other words, throw it in
reverse." (Tr. at 37). A repair order had been written to repair
the brakes but because of the parts being unavailable, it was
necessary to fabricate the parts in the respondent's shop.
Respondent argues that because of the restricted area in which
this locomotive operated and its slow speed, there was not a
hazard created and that it was not a significant and substantial violation.

ll

Mandatory. Powered mobile equipment shall be provided with
adequate brakes.

872

I agree. that the violation should not be considered
significant and substantial. I do find that the operation of
this locomotive without the brakes working is a violation of
§ 57.9-3.
"Plugging" the engine is not adequate brakes under the
standard as the locomotive had been originally equipped with a
shoe type brake and these should be repaired. The responden~
knew this condition had existed for over two weeks as testified
to by Mr. Semmons. I conclude that an appropriate penalty for
this violation is $75.00.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Citation Nos. 2086656 and 599945 are affirmed, but the
significant and substantial designations are REMOVED.
2. Respondent shall pay within 40 days of the date of this
decision civil penalties for the following violations found
herein to have occurred: Citation No. 2086656 in the amount of
$50.00, and Citation No. 599945 in the amount of $75.00 for a
total amount of $125.00.

~Jc!~
Vi~. Vail
A~~I~~~rative Law Judge
Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor
U.S. Department of Labor, 11071 Federal Building, Box 36017
450 Golden Gate Avenue, San Francisco, California 94102
(Certified Mail)
N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills
2702 North Third Street, Suite 4007, Phoenix, Arizona
(Certified Mail)

/blc

873

85004

FEDERAL M1'4E SAFETY AND HEALTH REVIEW COMMISSION .
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 111984

CONTEST PROCEEDING

BADGER COAL COMPANY,
Contestant

Docket No. WEVA 81-36-R
Order No. 631937; 9/22/80

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

Docket No. WEVA 81-37-R
Citation No. 631938; 9/22/80

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

CIVIL PENALTY PROCEEDING

Grand Badger No. 1 Mine

Docket No. WEVA 81-277
A. C. No. 46-04819-03010

v.

Docket No. WEVA 81-285
A. C. No. 46-04819-03009 F

BADGER COAL COMPANY,
Respondent

Grand Badger No. 1 Mine
DECISION

Appearances:

David J. Romano, Esq., Young, Morgan, Cann &
Romano, Clarksburg, West Virginia, for Contestant/Respondent;
Covette Rooney, Esq., Office of the Solicitor,
U. S. Department of Labor, Philadelphia,
Pennsylvania, for Respondent/Petitioner.

Before:

Judge Steffey

An order was issued in this proceeding on December 19,
1980, consolidating for hearing and decision the issues raised
by the filing of Badger Coal Company's application for review
in Docket No. WEVA 81-36-R and its notice of contest filed in
Docket No. WEVA 81-37-R.
The order also consolidated for hearing and decision any civil penalty issues which would be raised
when and if the Secretary of Labor should thereafter file one
or more petitions for assessment of civil penalty with respect
to the violations alleged in Order No. 631937 and Citation No.
631938.
A hearing was held in Elkins, west Virginia, on January 27,
1981, through January 29, 1981, at which time the parties introduced evidence with respect to the issues raised in both the
notice of contest and civil penalty proceedings. Two petitions

874

for assessment of civil penalty were subsequently filed in April
1981 in Docket Nos. WEVA 81-277 and WEVA·&l-285. When counsel
for Badger Coal Company filed his answer to the petitions for
assessment of civil penalty, he appropriately requested that the
civil penalty cases be forwarded to me so that the issues raised
in those cases could be decided on the basis of the evidence
which had already been submitted in this consolidated proceeding.
Therefore, this decision will dispose of all issues raised in
all of the cases listed in the caption of this decision.
Because of illness, the reporter was unable to prepare a
transcript of the hearing. Therefore, on January 13, 1982, I
submitted to the parties 31 proposed findings of fact and asked
them to determine whether they could agree upon those findings
for the purpose of deciding the issues in this proceeding. Although a considerable period of time was used by me and the parties in reviewing our respective notes and revising language so
as to arrive at findings on which both parties could agree, I
believe that the time utilized was justified because a second
evidentiary hearing, involving expenditure of additional time
and money and use of witnesses with eroded memories, was avoided.
Counsel for Badger Coal Company filed his brief on October 31, 1983, and counsel for the Secretary of Labor filed her
reply brief on November 25, 1983. The issues discussed by both
counsel are those normally raised in such proceedings:
(1) Was
Order No. 631937 validly issued under imminent-danger section
107(a) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 817(a)?
(2) Did the violations alleged in Order No.
631937 and Citation No. 631938 occur?
(3) If violations did
occur, what civil penalties should be assessed under section 110
(i) of the Act?
STIPULATED FINDINGS OF FACT
The 31 findings of fact agreed upon by the parties are
given below:
1. Badger Coal Company operates the Badger No. 1 Mine
which is located in Upshur County, West Virginia. Badger's No.
1 Mine produces approximately 1,200 tons of coal daily.
Badger
is an affiliate of the Pittston Company Coal Group.
Badger
also owns and operates three other mines which produce about
3,500 tons of coal daily.
Badger employs about 45 underground
miners and 13 surface employees at the Badger No. 1 Mine and
employs a total of 348 miners at all of its mines.
It has been
stipulated that Badger is subject to the provisions of the Federal Mine Safety and Health Act of 1977 and that the administrative law judge has jurisdiction to hear and to decide the issues
raised by the filing on September 22, 1980, of Badger's application for review and notice of contest in Docket Nos. WEVA 81-36-R
and WEVA 81-37-R, respectively.

875

2.
On Friday, September 19, 1980, Richard L. Lambert, a
shift maintenance foreman, working on the 4-p.m.-to-11 p.m.
shift, reported to Guy Steerman, the chief electrician, that
the ground monitoring circuit for the 1 Left Panel Section would
not trip the Line Power VCB-1 vacuum breaker switchhouse.
It
was agreed that Lambert would report to work on the day shift on
Saturday for the purpose of repairing the defective vacuum
breaker switchhouse. Lambert was certified by MSHA as a qualified underground electrician and, by September 20, 1980, he had
10 years and 8 months of mining experience, and had been a shift
maintenance foreman for 3 years and 9 months.
3.
Lambert came to the mine on Saturday, September 20,
1980. Before entering the mine,· Lambert went into the fenced
enclosure around the surf ace substation and shut off all power
to underground equipment.
He locked the gate on the fenced enclosure and placed the key behind a high-voltage .warning sign.
At about 8 a.m. Lambert entered the mine accompanied by two
mechanics.
They traveled to the A Panel vacuum switchhouse
which was located about 4,800 feet from the surface substation.
4.
Lambert found a loose connection on the shunt trip
coil and believed that was the cause of the malfunction.
In
order to test the performance of the coil, Lambert called
Steerman on the surface at about 9 a.m. and asked Steerman to
go to the surface substation and unlock the gate with the key
behind the high-voltage sign so as to energize the main power
circuit which is a high-voltage system transporting 12,470
volts.
Steerman complied with Lambert's request and Lambert
called Steerman again and reported that the vacuum breaker was
still malfunctioning and that Lambert was returning to the surface to attend a foremen's meeting which had previously been
scheduled.
The two mechanics were sent to the West Mains Section to work on a continuous-mining machine.
Lambert met Roger
Davis, a section foreman, at the entrance to A Panel and they ·
traveled to the surface together.
5. After the foremen's meeting, Lambert and Steerman discussed the vacuum switchhouse and concluded that the shunt trip
circuit was causing the malfunction. Lambert asked Steerman to
remain on the surf ace after Lambert went back underground so
that Steerman could turn the power on and off as needed while
Lambert sought to determine the cause of the malfunction of the
vacuum breaker.
6.
Lambert and Davis returned to the A Panel vacuum
switchhouse.
Davis stayed with Lambert to assist him and because he did not want to leave him alone while Lambert was
working on the vacuum circuit breaker. Lambert and Davis removed the cover from the breaker compartment.
Removal of the

876

cover caused the tripping of interlock switches which turned
off all power to the compartment. Lambert visually examined
the interior of the compartment and Davis left the scene for
about 10 minutes in order to check on the progress of Davis'
crew members who were plastering stoppings and working on the
track rails in A Panel. When Davis returned to the switchhouse,
Lambert told Davis that Steerman had asked Lambert to check the
terminal board located on the inside of the open compartment.
Lambert taped the interlock switches in closed position so that
they could not prevent power from entering the compartment while
the cover was removed.
Lambert called Steerman to reenergize
the switchhouse. Lambert thereafter instructed Davis to hold in
the capacitor trip switch button while Lambert measured the low
voltage on the terminal board.
7. About 1 p.m. Lambert and Davis heard someone being
paged on the mine telephone located about one block outby the
switchhouse.
Davis left to answer the phone and had just picked
up the receiver when Davis heard a loud buzzing noise and a moan
from Lambert. Davis dropped the phone and ran to the switchhouse
where he found Lambert slumped over the switchhouse with his
upper body and both arms inside the compartment.
8. Although the power had been cut off, -Davis opened an
emergency disconnect on the back of the switchhouse. As Davis
was pulling Lambert from the compartment, Davis noticed that
Lambert's left hand was grasping an unshielded insulated wire
in the open compartment. Davis left Lambert on the mine floor
and telephoned outside for help and thereafter administered
first aid with assistance of other miners while Lambert was
transported to the surface. An ambulance took Lambert to the
hospital where he was pronounced dead at about 2:15 p.m.
9. Badger notified MSHA of Lambert's death and at about
8:30 p.m. five MSHA employees came to the Grand Badger No. 1
Mine to initiate an investigation of the fatality.
The five
persons were: Richard Vasicek, chief of special enforcement
program; Jim McCray, supervisory coal mine inspector; Jim Cross,
coal mine electrical inspector; Paul Moore, mining engineer; and
Robert Wilmoth, coal mine inspector.
The investigators used
their time Saturday night to interview Badger's employees. Most
of the questions were asked by Vasicek and a West Virginia state
inspector whose name was Grant King.
10. The investigation was not completed on Saturday. On
Monday, September 22, 1980, three employees--Paul Moore, mining
engineer; John PhilLips, coal mine electrical inspector; and
Paul Hall, chief of MSHA's electrical section--from MSHA's
Morgantown, West Virginia, office went to the mine to continue
the investigation. Moore was the only MSHA employee at the mine
on Monday who had also been to the mine on Saturday night.
Hall,

877

Phillips, and Moore, along with some Badger employees, went
underground and determined, after about 3 hours of trouble
shooting, with the vacuum circuit breaker deenergized, that the
malfunction reported by Lambert was caused by open circuits in
the auxiliary breaker switch.
The open circuits prevented the
tripping circuit from deenergizing the circuit breaker.
The
malfunction was traced to the auxiliary breaker switch after
various checks and deductions had been made to eliminate four
other possible causes of the problem, namely, a circuit breaker,
a capqcitor trip device, some relays, and the shunt trip coil,
all of which are shown in a diagram on Exhibit 2.
11. After Hall, Phillips, and Moore had participated in
isolating the defective components in the vacuum circuit breaker
on 1 Left A Panel, the three MSHA employees discussed and evaluated all of the information which they had gathered on September 22, 1980, as well as the summaries of the interviews which
had been obtained through the interviews of Badger's employees
on Saturday night. Hall, Phillips, and Moore decided to cite
Badger for three different violations of the mandatory safety
standards.
12.
Two of the alleged violations were cited in irnrninentdanger Withdrawal Order No. 631937 dated September 22, 1980,
issued under sections 107(a) and 104(a) of the Act.
The condition or practice stated in the order is as follows:
Work was being performed on energized electrical
equipment, the 1 Left Panel vacuum circuit breaker,
when it was not necessary for the circuit to be energized during testing and trouble shooting (75.509).
A lock installed by Richard Lambert shift maintenance foreman to lock out a set of disconnects, was
removed by Guy Steerman, Chief Electrician, after
Lambert had completed some minor repairs to the 1
Left A Panel vacuum circuit breaker. Lambert was
available underground and had asked Steerman by
telephone to remove the lock and reenergize the main
circuit breaker supplying power underground (75.511).
These conditions were determined during an investigation of an accident resulting in the electrocution
of Richard La~bert, shift maintenance foreman.
Mine
management shall insure that all qualified electricians will be prevented from working on energized
electrical equipment except when it is absolutely
necessary to have the power on to trouble-shoot or
test.
Otherwise trouble shooting and testing shall
be done with the electrical circuits deenergized.
Also, locks and tags shall only be removed by persons
who installed them when they are available at the
mine.

878

A subsequent action sheet was issued on September 24, 1980,
stating:
Order No. 631937 is hereby modified so that
the following statement is added.
Richard Lambert
was not wearing protective apparel while he was
troubleshooting and testing the low voltage control
circuit of the Line Power 12,470 VAC vacuum breaker
S.N. 4986.
Lambert was exposed to and contacted
internal high voltage components which were energized.
Phillips signed Order No. 631937 but its issuance was with the
full concurrence of Hall and Moore.
13. Order No. 631937 is comprised of Exhibits 4 and 4A in
this proceeding. Exhibit 4 has two lines after the words "Area
or Equipment" for entry of the designated area covered by the
withdrawal order. Exhibit 4 shows that something was described
on the first of those two lines, but those words have been
scratched out. Exhibit O in this proceeding is a copy of Withdrawal Order No. 631937 which was attached to Badger's application for review filed in Docket No. WEVA 81-36-R. On Exhibit O,
after the words "Area or Equipment", there appears an entry
reading "The 1 Left vacuum circuit breaker serial No. 4986".
14.
The pink and yellow copies of Order No. 631937 were
handed to Badger's safety director, Larry Fortney, by Phillips.
Fortney testified that the yellow copy was placed on Badger's
bulletin board and is no longer available as no effort is made
by Badger to preserve the copy placed on the bulletin board.
The pink copy of Order No. 631937 was introduced in evidence as
Exhibit B and the pink copy also has after the words "Area or
Equipment" the same entry that appears on Exhi,bit O, namely,
"The 1 Left vacuum circuit breaker serial No. 4986". Although
the entry on the pink copy contains the same words as those
which appear on the Xerox copy, which was attached to Badger's
application for review, the Xerox copy, or Exhibit O, is not a
true Xerox copy of the original order because a secretary who
works for Badger rewrote Exhibit o to obtain a clear copy for
use as an exhibit to accompany the application for review.
15. When Phillips was cross-examined during his first
appearance as a witness, he stated that he might have scratched
out the entry on Order No. 631937 after the words "Area or
Equipment" but that he could not specifically recall having
done so.
16. Phillips testified, when called as an adverse witness
by Badger's counsel, that his handwriting appears on drder No.
631937 and that he simply wrote on the official form the language which he, Hall, and Moore had drafted.
Phillips also
stated that after he wrote the order, he tore the white, pink,
and yellow copies out of his book of forms and placed them in

879

front of him.
Then Phillips, Hall, and Moore decided that the
order dealt with a "practice" instead of a "condition" and it
was concluded that the language appearing after the words "Area
or Equipment" should be obliterated from the order. Phillips
stated that the original white copy which is now in MSHA's file
in the Morgantown office shows obliteration of the entry after
"Area or Equipment". The only explanation Phillips could give
for the fact that the pink copy presented in evidence as Exhibit
B by Badger's counsel showed that the entry after the words
"Area or Equipment" had not been obliterated was that he placed
the copies back in his book to scratch out the entry after "Area
or Equipment" and he thinks that he may have placed the pink
copy under his green copy which does not contain on its back the
substance which acts like carbon paper.

17. Phillips' green copy of Order No. 631937 was introduced in evidence as Exhibit C. A careful comparison of the
pink copy of Order No. 631937, or Exhibit B, with the green copy
shows that the handwriting on the green and pink copies is identical and that the only difference between them, besides their
color, is the fact that the green copy has had the entry after
the words "Area or Equipment" scratched out, whereas the pink
copy still shows an entry after the words "Area or Equipment".
18. Order No. 631937 was terminated by James Cross on
October 2, 1980, as shown in Exhibit 4B. Cross testified that
Badger did not request that the order be vacated.
Cros~6ad
gone to the mine for other purposes and, while there, asked to
see a list of miners who had signed a sheet indicating that
they would not trouble shoot while equipment is energized unless
absolutely necessary and would have the same person who locks
and tags power out of the mine to remove the lock and tag and
restore the power. All miners had signed sheets, which comprise
Exhibit 6 in this proceeding, to show that they would comply
with the aforementioned procedures. Although all electricians
or miners had signed the sheets by September 24, 1980, the order
was not terminated until October 2, 1980.
19. The third violation, referred to in Finding No. 11
above, for which Phillips, Moore, and Hall determined to cite
Badger was a violation of section 75.803 which was alleged in
Citation No. 631938 issued September 22, 1980. That citation
is Exhibit 5 in this proceeding and the condition described in
the citation is:
The ground check circuit provided to monitor
the continuity of the grounding circuit from the A
Panel vacuum breaker to the A panel power center
was inoperative in that the auxiliary breaker
switch would not properly operate to allow the
tripping circuit to energize the shunt trip coil

880

which deenergizes the circuit breaker. This condition was determined during an investigation of a
fatal electrical accident. Mine management was aware of this condition and was in the process of
repairing the ground wire monitoring system when
the accident occurred.
Citation No. 631938 was terminated on September 23, 1980, by a
subsequent action sheet which is Exhibit SA in this proceeding
and which states:
The ground check circuit provided to continuously monitor the continuity of the grounding
circuit from the A Panel Vacuum Breaker to the A
Panel power center was made operative by providing another vacuum breaker and transporting the
defective breaker to the surface.
20.
Hall, Phillips, and Moore testified in support of the
issuance of Order No. 631937.
They claimed that an imminent
danger was involved in the death of Lambert because there was a
practice at Badger's No. 1 Mine which was a continuing imminent
danger in that the electrician who turned off high voltage was
allowing another electrician to reenergize the equipment for
purposes of trouble shooting and testing.
Hall said that the
imminent danger existed while Lambert was trouble shooting with
the power on, but that the imminent danger did not exist when
he checked the equipment on Monday, September 22, 1980, because
the vacuum breaker had been deenergized.
Hall said that MSHA
can issue an imminent danger order when an inspector finds that
a practice is causing an imminent danger even though it may
take days, as it did in this instance, to determine whether the
imminent danger has been abated.
Hall also said that the imminent danger in this instance continued to exist while the list
(Exh. 6) was circulated in order for the miners to sign their
names to the list to show that they would not have another per3on to reenergize high voltage equipment if a different person
had shut off the power and tagged or locked out the disconnects
involved.
21.
In support of MSHA's citing of a violation of section
75.509, MSHA's witnesses stated that section 75.509 permits a
person to trouble shoot or test electrical equipment while it
is energized only when such trouble shooting is necessary and
they claimed that trouble shooting and testing with the power
on was not necessary for Lambert to determine why the vacuum
breaker would not cut off the power in the 1 Left A Panel.
MSHA's witnesses primarily supported their contention that it
was unnecessary for Lambert to trouble shoot with the power on
by stating that the team of men who examined the vacuum breaker
on September 22, 1980, determined the cause of the malfunction

881

while the power was off. The names of the people who participated in the examination were: Wayne Myers, Badger's chief
electrical engineer; Blaine Yeager, Badger's maintenance superintendent; Guy Steerman, Badger's chief electrician at the No. 1
Mine; Mike Hall, chief of MSHA's Electrical Section; Jim Cross,
an MSHA electrical inspector; John Paul Phillips, an MSHA inspector and certified electrician; and Benny Comer, a West Virginia
electrical inspector. Those seven men studied a printout of the
vacuum breaker before going underground and determined the manner
in which they would check all of the various circuits and components to determine the problem. They worked 3-1/2 hours and
finally decided that the auxiliary switch was at fault because
of excessive mechanical wear. Although the trip counter showed
only 230 operations, the switch should have worked thousands of
times without becoming defective as a result of mechanical wear.
MSHA's witnesses stressed the fact that voltage potential can
be checked with an ohmmeter which is equipped with a battery to
provide its own power. MSHA's witnesses said that checking with
a voltmeter, which requires energization of equipment, is unnecessary· for locating defective components.
22.
MSHA's witnesses supported their citing of a violation
of section 75.511 by stating that Lambert had violated that section when he asked Steerman to reenergize the equipment which
Lambert had deenergized at the substation and locked out. Moore
testified that only the electrician who deenergizes equipment
before working on it may remove the locks or tags and reenergize
the equipment. Hall testified that Steerman's reenergizing the
vacuum breaker was a contributing factor to Lambert's electrocution even though Lambert knew that the vacuum breaker was energized at the time he came into contact with the high-voltage
circuits. Hall interpreted the last sentence of section 75.511
to mean that the person who deenergizes equipment must be the
person who reenergizes it so long as that person is anywhere at.
the mine site. MSHA's witnesses took the position that Lambert
was "available" to reenergize the equipment even though the
vacuum breaker was located 4,800 feet from the surface substation where Lambert had turned off the power.
23.
MSHA's witnesses supported their citing respondent
for a violation of section 75.803 by testifying that Badger's
management knew that the vacuum circuit breaker was inoperable
but continued to operate equipment in the mine after Badger's
management became aware of the fact that the ground monitoring
system was not working.
Citation No. 631938 specifically acknowledges the fact that mine management was aware of the fact
that the ground monitoring system was not working and states
that management was ~n the process of repairing the ground wire
monitoring system when the fatal accident occurred.

882

24. Guy J. Steerman, in September 1980, was chief electrician at the Badger No. 1 Mine.
Steerman was certified by MSHA
as a qualified electrician for both underground and surf ace
mining operations and Steerman had 10 years mining experience
by September 20, 1980. Steerman testified that Lambert had already checked the vacuum breaker with an ohmmeter and had been
unable to determine the cause of the malfunction in the shunt
trip coil. Lambert had also advised Steerman that there was
continuity in the ground monitoring system.
In such circumstances, Steerman asked Lambert to check terminal Nos. 15 and 16
with a voltmeter to determine if there was power on the shunt
trip coil.
Steerman did not think it was hazardous to check the
low-voltage terminal board of the vacuum circuit breaker with
the power on. The low-voltage terminal board was sufficiently
segregated from the high-voltage components of the vacuum circuit
breaker that Steerman did not consider Lambert to be working on
high-voltage components when he was checking the low-voltage terminal board. Steerman did not know that Lambert had removed the
p~otective insulated shield covering the high-voltage compartment in which the high-voltage vacuum circuit breaker was located.
If Steerman had known that Lambert had removed the insulated
shield over the high-voltage components, he would have instructed
Lambert to replace the insulated shield before conducting further
testing or trouble shooting. Therefore, Steerman did not think
Badger had violated section 75.509 or section 75.803. Steerman
stated that Lambert knew by talking to Steerman on the phone
when the power was on and when it was off.
Steerman thought
that there was no essential difference between Lambert's telling
Steerman to turn the power on and off and Lambert's coming out
of the mine for the purpose of turning the power on and off.
Therefore, Steerman did not think Badger had violated section
75.511.
25.
Lowell ~unior Tinney, general superintendent of Badger's
No. 1 Mine, testified that he also suggested that Lambert check
terminal Nos. 15 and 16 with the power on and that he had no
reason to doubt Lambert's ability or his care in avoiding exposure to the high-voltage circuits. Tinney thinks that an electrician should be able to ask another person to turn the power
on and off because he thinks that when an electrician is 4,800
feet from the place where the power is turned on and off, that
person is "unavailable" for personally turning the power on or
off within the meaning of section 75.511. Tinney also believed
that Badger was following the provisions of section 75.509 because he believed that it was necessary for Lambert to check
the low-voltage circuits with the power on in his effort to
determine what was wrong with the shunt trip coil.
26.
Larry Fortney, Badger's safety director, testified
that the inspectors gave him both the yellow and pink copies
of Order No. 631937 and that neither of those copies had any

883

words scratched out on the line beginning with the words "Area
or Equipment". On the contrary, both copies specified that the
"Area or Equipment" involved was "The 1 Left vacuum circuit
breaker serial No. 4986".
It was Fortney's understanding that
abatement of the order was dependent upon Badger's replacing the
existing vacuum breaker with a new one. That is what was done
to abate the order. Fortney additionally said that the inspector
who abated the order also asked for the list of men who had
signed Exhibit 6 stating that they would personally reenergize
any equipment which they had personally deenergized.
27. Wayne Myers, Jr., is head of Pittston's Electrical Department.
He has had 32 years of experience in designing and
working on complex electrical equipment. He wrote the specifications for the vacuum breaker involved in this proceeding and
had the breaker constructed by Line Power Company of Bristol,
Virginia. Myers first thought that the defect in the vacuum
breaker was in the auxiliary switch.
The switch was replaced
on Tuesday, September 23, 1980, the day after MSHA's three employees (Phillips, Hall, and Moore) had written the order and
citation involved in this proceeding. The vacuum breaker worked
perfectly and West Virginia and MSHA personnel were called to
Badger's repair shop on Wednesday, September 24, 1980, for a
demonstration, but the vacuum breaker again malfunctioned.
Myers and his assistants replaced the vacuum bottle and all
parts which were suspect and again the vacuum breaker seemed
to be working satisfactorily, but it again malfunctioned when
West Virginia and MSHA personnel were called for a second demonstration on Thursday, September 25, 1980. Myers then found
that a ratchet in the operating handle was failing to create
enough force to close the vacuum bottle which was supposed to
activate the rod which, in turn, operated the auxiliary switch.
The cam was not making a full rotation. The ratchet was redesigned on Friday and Saturday. On Monday, September 29, 1980,
the redesigned parts were installed and the vacuum breaker
thereafter worked perfectly.
28. Myers said that Badger's personnel had not violated
any of the mandatory safety standards. He said that the ground
monitoring system was working at all times and that Lambert was
aware of the fact that the monitoring system was working. While
the vacuum breaker was failing to cut off power, the fault was
not in the ground monitoring system; consequently, Myers did
not think a violation of section 75.803 had occurred.
29. Myers said that he believed section 75.511 should be
interpreted to give some meaning to the word "unavailable" in
the last sentence of that section. Myers pointed out that it
could take an electrician from 2 to 2-1/2 hours to travel from
the equipment on which he was working to the place where the
power had been cut off and locked out or tagged. Myers believed

884

that the person who cuts off the power is 11 unavailable" to reenergize the equipment when he is so far away from the power cutoff point that it takes him 2-1/2 hours to go to the power point
and reenergize equipment. Myers said that requiring an electrician to spend 2-1/2 hours to turn power on and off would tend to
make the electrician impatient and tempt him to check equipment
with the power on rather than take the time and effort required
to go back to the power point and reenergize or deenergize
equipment.
Therefore, in Myers' opinion, Lambert was in compliance with section 75.511 when he asked Steerman to turn the
power on.
So long as Lambert gave the instructions about energizing and deenergizing equipment, Lambert was at all times aware of when the power was on and when it was off. Myers said
that Lambert knew that the power was on at the time Lambert was
electrocuted and that Lambert's act of asking Steerman to turn
the power on for him had nothing whatsoever to do with the occurrence of the fatal accident.
30. Myers also believed that Lambert had engaged in trouble
shooting and testing with the power on in full compliance with
section 75.509 because, in Myers' opinion, Lambert had determined
that a problem existed in the vicinity of the shunt trip coil,
which is a low-voltage section of the vacuum circuit breaker,
and that Lambert having previously done testing and trouble
shooting for sometime with the power off, was not acting unreasonably in doing further testing and trouble shooting on the lowvol tage terminal board with the power on. As a matter of fact,
all three of MSHA's experts and the other experienced personnel
(including several electrical engineers) who examined the vacuum
circuit breaker for 3-1/2 hours on Monday, September 22, 1980,
had failed to find the cause of the malfunction.
The fact that
a large number of experts could not find the problem with the
power off was, in Myers' opinion, rather positive proof of the
fact that Lambert was trouble shooting and testing with the
power on at a time when it was "necessary" within the meaning
of section 75.509. As noted in Finding No. 27, supra, the
malfunction was not fully determined until several days later
when it turned out to be a mechanical problem in the design of
the ratchet lever by Line Power Manufacturing Company and not an
electrical problem.
31.
It was stipulated at the hearing that during the 24
months preceding the citing of the alleged violations in this
proceeding, respondent had paid penalties with respect to 52
alleged violations.
There is no history showing that respondent
has previously violated sections 75.509, 75.511, or 75.803.

885

DOCKET NO. WEVA 81-36-R
The Question of the Validity of Order No. 631937
Badger's Arguments
Badger's brief (pp. 2-7) argues that Order No. 631937,
whose provisions are quoted in Finding No. 12, supra, is invalid
because its issuance is unsupported by the law and the facts.
Section 107(a) provides as follows:
(a) If, upon any inspection or investigation
of a coal or other mine which is subject to this
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. 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.
Badger's arguments also refer to section 107(c) which provides
as follows:
{c) Orders issued pursuant to subsection (a)
shall contain a detailed description of the conditions
or practices which cause and constitute an imminent
danger and a description of the area of the coal or
other mine from which persons must be withdrawn and
prohibited from entering.
Order No. 631937 was issued on September 22, 1980, by three
MSHA employees, namely, John Phillips, a coal-mine electrical
inspector, Paul Moore, a mining engineer, and Paul Hall, chief
of the electrical section in MSHA's Morgantown, West Virginia,
office (Finding Nos. 10 and 11, supra).
The order alleged violations of 30 C.F.R. §§ 75.509 and 75.511.
Section 75.509 pro·vides as follows:
All power circuits and electric equipment shall
be deenergized before work is done on such circuits
and equipment, except when necessary for trouble
shooting or testing.

886

Section 75.511 provides:
No electrical work shall be performed on low-,
medium-, or high-voltage distribution circuits or
equipment, except by a qualified person or by a
person trained to perform electrical work and to
maintain electrical equipment under the direct
supervision of a qualified person.
Disconnecting
devices shall be locked out and suitably tagged by
the persons who perform such work, except that in
cases where locking out is not possible, such devices shall be opened and suitably tagged by such
persons.
Locks or tags shall be removed only by
the persons who installed them or, if such persons
are unavailable, by persons authorized by the operator or his agent.
Badger's brief (p. 4) correctly notes that the language
given under the words "Condition or Practice" in Order No.
631937 alleges only that Badger had violated section 75.509 by
performing testing and trouble shooting on electrical equipment
when it was not necessary to do so.
The order also alleges
that Badger had violated section 75.511 in that the certified
electrician, Richard Lambert, who locked out the disconnecting
device in a surf ace substation providing power to an underground
vacuum circuit breaker, asked the chief electrician to unlock
the device and restore power for purposes of trouble shooting.
The inspectors issued a modification of Order No. 631937 on
September 24, 1980, but that modification simply added words
to the effect that Lambert was not wearing protective apparel
while he was trouble shooting the low-voltage control circuit
on a vacuum circuit breaker (Finding No. 12, supra).
Badger's brief concludes that the language in Order No.
631937 does not comply with section 107(c) of the Act because
it does not, in the words of that section, "* * * contain a
detailed description of the conditions or practices which cause
and constitute an imminent danger." Badger contends, therefore, that anyone reading the order would believe that it does
no more than cite Badger for violations of sections 75.509 and
75.511. At the hearing, MSHA's witnesses explained that an
imminent danger was associated with Lambert's death "* * * because there was a practice at Badger's No. 1 Mine which was a
continuing imminent danger in that the electrician who turned
off high voltage was allowing another electrician to reenergize
the equipment for purposes of trouble shooting and testing"
(Finding No. 20, supra).
Although Order No. 631937 when first written by Phillips
on September 22, 1980, specified under the words "Area or
Equipment" that "[t]he 1 Left vacuum circuit breaker serial

887

No. 4986" was the area from which miners should be withdrawn,
or the hazardous equipment which should be withdrawn, the inspectors decided that, since the order dealt with a "practice"
instead of a "condition", that the language referring to the 1
left vacuum circuit breaker should be obliterated from the
order.
Phillips, at first, stated that while he might have
scratched out the words "l left vacuum circuit breaker serial
No. 4986" from the order, he did not specifically recall having
done so (Finding No. 15, supra). When Phillips was subsequently recalled as an adverse witness by Badger's attorney, he' recalled specifically having put the copies of the order back into
his book of forms to scratch out the words under "Area or Equipment".
The only explanation which Phillips could give for the
fact that the pink copy given to Badger did not show any scratching out of the words "l Left vacuum circuit breaker serial No.
4986" under "Area or Equipment" was that he may have placed the
pink copy under his green copy which does not contain on its
back the substance which acts like carbon paper (Finding No. 16,
supra) .
Larry Fortney, Badger's safety director, testified that the
inspectors gave him both the yellow and pink copies of Order No.
631937 and·that neither of those copies had any words scratched
out on the line beginning with the words "Area or Equipment".
On the contrary, both copies specified that the "Area or Equipment" involved was "[t]he Left vacuum circuit breaker serial No.
4986". Fortney understood that abatement of the order required
Badger to remove the defective vacuum circuit breaker and replace it with another vacuum circuit breaker which functioned
properly and Fortney said that was the action Badger took to
abate the order (Finding No. 26, supra).
Badger's brief (p. 5) argues that the lack of specificity
and detail in Order No. 631937 renders it defective as a matter
of law because it does not specify what constituted an imminent
danger at the time the order was issued. Badger further contends that the inspectors, after hearing that the order had been
contested, contrived the argument that the imminent danger consisted of a "practice" at the mine of having someone energize
equipment other than the individual who had deenergized it.
Badger also argues that the inspectors did not really obliterate
the words "l Left vacuum circuit breaker serial No. 4986" on
the same day they wrote the order, but decided to obliterate
those words from the order after they realized that the 1 left
vacuum circuit breaker did not constitute an imminent danger
at the time the order was written.
Badger's brief (p. 6) points
out that the inspectors have always taken great precautions to
notify Badger when changing or altering any previous citation or

888

order and that MSHA's failure to notify Badger of the obliteration of "l Left vacuum circuit breaker serial No. 4986" supports
Badger's contention that the obliteration occurred after the
inspectors learned that the order was going to be contested.
Badger's brief (p. 6), in support of its argument, cites a
decision by Judge Boltz in CF&I Steel Corp., 3 FMSHRC 99
(1981), 1/ in which Judge Boltz found that no imminent danger
existed rn circumstances where the operator had detected a
hazardous concentration of methane, had turned off all ?Ower to
the area, and had withdrawn all miners except those working to
correct ventilation before the inspector arrived at the scene
of an all~ged imminent danger.
Badger argues that since it was
removing the defective circuit breaker at the time the order
was written, that the conclusions of Judge Boltz in the CF&I
case should be applied in this case, that I should find that no
imminent danger existed in Badger's mine, and that the order
should be vacated as having been issued in error.
The Secretary's Arguments
The Secretary's brief (p. 4) argues that imminent-danger
Order No. 631937 was properly issued because "* * * there was in
existence at the Grand Badger No. 1 Mine a practice considered
normal procedure, wherein a person performing electrical work
locked out the equipment and once the work was completed, then
instructed someone over the station phone, to remove the lock
and reenergize the power." The Secretary also cites a decision

1/ Badger's brief (p. 7) cites other cases to the same effect,
at least to the extent that I was able to locate them and read
them. Badger's citations are to the Mine Safety and Health publication by the Bureau of National Affairs.
I prefer to read
the cases in the Commission's books of decisions.
Therefore,
when lawyers cite cases only by reference to the Mine Safety and
Health publication, it is necessary for me to go to the library
to determine the docket numbers and exact dates of the decisions
so that I can locate them in the Commission's books of decisions
which are issued each ·month. Badger's failure to give the names
of the cases cited on page 7 of its brief and its incorrect use
of page citations for some of the cases made it impossible for
me to find the citations in the Mine Safety and Health publication
or elsewhere.
I recognize that a judge's decision becomes a final
decision of the Commission after 40 days if the Commission fails
to grant a petition for discretionary review, but I still think a
lawyer ought to make it clear in his citations that he is referring to a judge's decision which has become final, as opposed to
decisions which have been issued by the Commission after determining that discretionary review should be made.

8.89

by Judge Koutras in Consolidation Coal Co., 2 FMSHRC 49 (1980),
in which he held that the coal company seeking revi~w of an
imminent-danger order has the burden of proving that an imminent
danger did not exist. Judge Koutras stated in the Consolidation
case that "* * * the order is properly vacated whe~e the applicant proves by a preponderance of the evidence that an imminent
danger was not present when the order was issued" (2 FMSHRC at
64) .
The Secretary's brief (p. 5) contends that the practice of
having a different person reenergize equipment from the person
who deenergized the equipment comes within the definition of
imminent danger in section 3(j) of the Act which provides, "[t]he
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 Secretary's brief (p. 6) also quotes from the Legislative
History of the Federal Coal Mine Health and Safety Act of 1969,
page 215, or from page 89 of Senate Report No. 91-411, which
provides as follows:
The concept of an imminent danger as it has
evolved in this industry is that the situation is so
serious that the miners must be removed from the danger forthwith when the danger is discovered without
waiting for any formal proceedings or notice.
The
seriousness of the situation demands such immediate
action.
The first concern is the danger to the miner.
Delays, even of a few minutes, may be critical or
disastrous. After the miners are free of danger,
then the operator can expeditiously appeal the action
of the inspector.
The Secretary's brief (p. 7) also quotes from the court's
decision in Freeman Coal Mining Co. v. Interior Bd. of Mine Op.
App., 504 F.2d 741 (7th Cir. 1974), in which the court agreed
with the Board's statement that imminent dan~er relates to the
"proximity of the peril to life and limb" (504 F.2d at 743).
The court also approved of the Board's discussion of imminent
danger in the following language (504 F.2d at 743):
"[w]ould a reasonable man, given a qualified inspector's educ·ation and experience, conclude that
the facts indicate an impending accident or disaster, threatening to kill or to cause serious
physical harm, likely to occur at any moment, but
not necessarily immediately? The uncertainty must
be of a nature that would induce a reasonable man
to estimate that, if normal operations designed to
extract coal in the disputed area proceeded, it is
at least just as probable as not that the feared
accident or disaster would occur before elimination
of the danger."

890

The Secretary's brief (p. 8) concedes that the inspectors
who wrote imminent-danger Order No. 631937 did not see the
"practice" which constituted the imminent danger which was cited
in the order, but the Secretary argues that the employees who
issued the order were experienced electricians and one of them
was a mining engineer.
It is contended, therefore, that they
had the "education and experience" referred to in the quotation
from the Freeman case to recognize that Badger's practice of
having another person reenergize equipment from the person who
deenergized the equipment indicated the existence of an impending accident or disaster, threatening to kill or cause serious
injury at any moment, if that practice were allowed to continue
in existence.
The Secretary, therefore, asks me to apply Judge Laurenson's
reasoning in Itmann Coal Co., 2 FMSHRC 1643 (1980), in which he
upheld the validity of an imminent-danger order issued in circumstances where an inspector saw a miner walk under unsupported
roof.
The Secretary argues that even though the miner was not
under the hazardous roof when the order was issued, Judge
Laurenson upheld the order because there was a practice at Itmann' s mine for miners to walk under the unsupported roof. The
Secretary also cites Peabody Coal Co., 1 FMSHRC 1785 (1979), in
which the Commission upheld issuance of an imminent-danger
order several days after data were collected showing existence
of a dangerous concentration of carbon monoxide after a fire
had occurred at Peabody's mine.
The Infirmities in Order No. 631937 Require Its Vacation
There are at least several reasons for vacating Order No.
631937.
First, the order, as modified by the inspectors, fails
to comply with section 107(a) by determining "* * * the extent
of the area of such mine throughout which the danger exists" so
as to withdraw miners from the area of danger. As the order
was originally issued, it made limited sense by declaring that
the area of danger was the "l Left vacuum circuit breaker serial No. 4986".
It is a fact that the circuit breaker in question malfunctioned on Friday, September 19, 1980, and caused
the death of an electrician when he was trouble shooting the
low-voltage circuits on the circuit breaker on Saturday, September 20, 1980. All power to the circuit breaker was cut off
at the moment of the electrician's death and the circuit breaker
was not energized again until after it was removed from the mine
on Monday, September 22, 1980.
The inspector who wrote the order, which was issued with
the concurrence of two other MSHA employees, testified that no
imminent danger existed on Monday, September 22, 1980, when the
inspectors examined the circuit breaker, because the circuit
breaker had been deenergized.
The inspectors apparently

891

recognized that they could not sustain the citing of an imminent
danger on a deenergized piece of equipment, so they thereafter
removed from the order any reference to "the area of such mine
throughout which the danger exists" and contended that the order
was withdrawing the "practice" at the mine of having a person
reenergize equipment other than the person who deenergized the
equipment.
Once the inspectors had changed their minds about the concept underlying the issuance of the order, it was incumbent upon
them to notify Badger's personnel of the fact that they were not
withdrawing a piece of hazardous equipment from the mine, but
were, instead, withdrawing the "practice" of having a person reenergize equipment other than the person who deenergized the
equipment. The Secretary's brief (p. 13) argues that the inspectors' failure to inform Badger of the obliteration of any
area from which miners were to be withdrawn was not prejudicial
to Badger.
The theory behind the claim of no prejudice is that
the inspectors required Badger to have all electricians sign a
statement that they would not have someone else reenergize equipment which they had deenergized before working on it. The Secretary; therefore, argues that Badger knew that the real imminent
danger cited in the order was the practice with respect to reen~rgization of equipment and that the order was not officially
terminated until all of the electricians had signed a statement
(Exh. 6) showing that they would not ask another electrician to
reenergize equipment which they had deenergized.
The Secretary's contention that Badger was not prejudiced
is hard to sustain within the concept of an imminent danger.
The Secretary has defended his action in issuing the order by
citing legislative history to the effect that the primary reason
for issuing imminent-danger orders is to remove miners from the
area of danger. When Badger removed the circuit breaker from
the mine, it thought it had removed all miners from the area of
danger because Badger's copy of the order continued to specify
that the "area throughout which the danger exists" was the "l
Left vacuum circuit breaker serial No. 4986". The order was
written on September 22, 1980, but Badger did not succeed in
getting all the electricians to sign the statement about deenergization of electric equipment until September 24, 1980, but
throughout that time, miners were allowed to work in the mine
because the inspectors had not advised Badger that the entire
mine was hazardous until the "practice" which caused the imminent
danger ceased to exist.
The confusion pertaining to the area from which miners were
required to be withdrawn was augmented by the fact that another
inspector had issued a withdrawal order pu~suant to section 103
(k} of the Act on September 20, 1980, after the electrician,
Richard Lambert, had been electrocuted. That order had initially

892

been issued by specifying that the "entire mine" was the area
from which miners should be withdrawn, but the order was modified 3 hours after it was issued to specify that the area from
which miners were to be withdrawn was the section where circuit
breaker with serial No. 4986 was located. Therefore, two withdrawal orders had been issued and both of them required Badger
to withdraw miners only from the area where the defective circuit
breaker was situated, but, according to the Secretary, the miners
throughout the entire mine were under the peril of an imminent
danger while Badger, over a 2-day period, was obtaining signatures of the electricians who worked at the mine.
Since the primary purpose for issuing Order No. 631937, or
any other imminent-danger order, is to withdraw miners from the
area of danger, the inspectors completely failed to carry out
their obligation under the Act by failing to specify the "entire
mine" as the area from which the miners should be withdrawn until such time as all electricians were made aware of the requirement that they never have another person reenergize equipment which they had deenergized for the purpose of working on
it.
In other words, the miners were continuing to work at the
mine throughout the period during which the imminent-danger
order was in effect. Many of the electricians did not sign the
statement saying that they would not have another person deenergize equipment until September 24, 1980. Therefore, if the
"practice" was as widespread and as hazardous as it would have
had to be to justify the issuance of an imminent-danger order,
the inspectors cannot justify allowing the miners to continue
working for 2 days while the electricians were being made aware
of the imminent danger which existed throughout that period.
There are other aspects about Order No. 631937 which support a finding that it should be vacated. Badger did not request
that the order be terminated because Badger thought it had eliminated the dangerous condition causing the imminent danger when
it withdrew the defective circuit breaker from the mine. Therefore, the imminent-danger order was technically in effect until
it was officially terminated on October 2, 1980. At that time,
the justification for terminating the order was that "[m]anagement has given specific instructions to each qualified electrician at the mine to comply with the instructions mentioned in
the order." Since the order was not terminated until October 2,
1980, the inspectors had allowed the miners to continue working
in the mine from September 22, 1980, the day the order was
issued, to October 2, 1980, without Badger's having any idea
that its mine or personnel were under some sort of binding withdrawal order.
The cases cited by the Secretary in support of his action
of having issued Order No. 631937 are not persuasive.
In the
Itmann case, supra, the are·a from which miners were withdrawn

893

was unsupported roof at a point where a roof fall had occurred.
There is no doubt as to what constituted the imminent danger in
that case. The danger was the falling of unsupported roof. The
"practice" which the miners were barred from doing was the act
of walking under the unsupported roof.
Itmann was required to
erect timbers and planks to prevent miners from going under the
unsupported roof before the order was terminated (2 FMSHRC at
1648). Therefore, the "practice" of walking under the hazardous
roof was necessarily terminated at the same time the bulwark was
constructed to stop the miners' "practice" of walking under unsupported roof.
Judge Laurenson distinguished his finding of an imminent
danger in the Itmann case from his finding of no imminent danger
in Sharp Mountain Coal Co., 3 FMSHRC 115 (1981), by pointing out
that the imminent danger order in the Itmann case was written
moments after the inspector saw a miner walk under unsupported
roof, as compared with the imminent-danger order in the Sharp
Mountain case in which the order was written 11 days after the
inspectors had observed nonpermissible caps and fuses in Sharp
Mountain's coal mine. Judge Laurenson held that the mere existence of nonperrnissible caps and fuses did not create an imminent
danger and that the inspectors had failed to find that Sharp
Mountain's owners were actually using the nonpermissible caps
and fuses at. all, much less using them in a hazardous manner.
The inspectors in this proceeding acted like those in the
Sharp Mountain case in issuing an imminent-danger withdrawal
order without having seen any electrician have another person
reenergize equipment which he had just deenergized for the purpose of working on it. The inspectors had simply interviewed
the chief electrician after Richard Lambert's death and had
learned that the chief electrician had turned the power off and
on after having received, by telephone, Lambert's instructions
to do so. At no point in Order No. 631937 did the inspectors
state that the imminent danger cited in their order was Badger's
"practice" of having equipment reenergized by a person other
than the one who deenergized it. The conditions and practices
described in the order simply allege that Badger had violated
sections 75.511 and 75.509. Those violations, by themselves, do
not normally result in an imminent danger and the inspector who
wrote the order agreed at the hearing that an imminent danger
did not exist at the time they were examining the defective cir~
cuit breaker because the power was off. Nevertheless, at the
time the order was written, the alleged practice of having
equipment reenergized by a person other than the person who deenergized i t did exist and continued to exist until September 24,
1980, when all electricians had signed the statement saying that
they would not test equipment with power on unless it was necessary to do so and would not ask someone else to reenergize
equipment which they had personally deenergized.

894

In the Peabody case, supra, cited by the Secretary, in support of his arguments that Order No. 631937 was properly issued
under section 107{a) of the Act, the imminent-danger order was
issued 3 days after a fire had occurred, but instrument tests
were being made at the time the order was issued and those tests
showed that carbon monoxide and inadequate oxygen continued to
exist in the mine at the time the order was issued. The order
was not terminated until such time as instrument readings showed
that the levels of carbon monoxide and oxygen were within acceptable limits.
In Old Ben Coal Corp. v. Interior Board of Mine Operations
Appeals, 523 F.2d 25 {7th Cir. 1975), the court stated that an
inspector has a difficult job because he has to be concerned about safety while coal companies are concerned about production
and profit.
Therefore, the court stated that an inspector's
imminent-danger order should be sustained unless the evidence
shows that he has clearly abused his discretion.
I agree with
the court's statement and I have never held that an imminentdanger order was invalid unless I believed that the inspector
had clearly abused his discretion in issuing it. The evidence
in this proceeding shows that the inspectors clearly abused
their discretion by stretching the concept of an imminent danger
beyond its reasonable limits.
The inspectors clearly abused their discretion in this case
(1) by failing to describe circumstances which~actually created
an imminent danger, (2) by failing to advise Badger that the "l
Left vacuum circuit breaker serial No. 4986" was not the equipment which had to be withdrawn and was not the area-from which
miners had to be withdrawn, (3) by failing to advise Badger that
they were withdrawing a "practice" of having another person reenergize equipment who had not deenergized it in the first instance, and (4) by failing to withdraw any miners from the mine
while the alleged imminent danger was being eliminated by having
the electricians, over a 2-day period, sign a statement that
they would not trouble shoot or test equipment with the power
on unless absolutely necessary, and would not have another person reenergize equipment which they had deenergized {Exh. 6).
For the foregoing reasons, I find that Order No. 631937 was
improperly issued and should be vacated as hereinafter ordered.
The Question of Whether Section 75.509 was Violated
Badger's Arguments
Although I have found above that Order No. 631937 should
be vacated, the Commission has held that violations cited in
withdrawal orders survive vacation of the orders {Island Creek
Coal Co., 2 FMSHRC 279 (1980), and Van Mulvehill Coal Co., 2

895

FMSHRC 283 (1980)). Therefore, it is necessary to determine
whether Order No. 631937 validly cited a violation of section
75.509 (Finding No. 12, supra}.
Badger's brief (p. 7) emphasizes the word "work" in section 75.509 which provides that "[a]ll power circuits and electric equipment shall be deenergized before work is, done on such
circuits and equipment, except when necessary for trouble shooting or testing." Badger states that the language of section
75.509 is quite clear and easily interpreted because it obviously prohibits the performance of work on energized equipment
and allows trouble shooting or testrng-of energized equipment
when necessary. Badger avers that the Secretary has made the
decision that doing work on energized equipment is so hazardous
that it should be absolutely prohibited, but the Secretary has
also recognized that an electrician may use his discretion to
trouble shoot or test energized equipment when he deems it
necessary to do so.
Badger claims that the foregoing interpretation is reasonable because the Secretary has other regulations which restrict
the performance of work on electrical equipment by anyone other
than a properly qualified and properly trained electrician.
Badger correctly notes that a qualified electrician will try to
determine what is wrong with electrical equipment while the
equipment is deenergized, if possible, just as Lambert attempted
to do so in this proceeding (Finding Nos. 2, 3, and 4, supra).
Badger's brief (p. 9) stresses the fact that each qualified
electrician is allowed, under the provisions of section 75.509,
to use his own discretion in determining when it is necessary to
trouble shoot or test electrical circuits with the power on.
Badger recognizes that MSHA's Underground Manual does not have
the force of regulations (King Knob Coal Co., Inc., 3 FMSHRC
1417 (1981)), but notes that the policy for application of section 75.509, as stated in the manual, is as follows (Exhibit P):
Section 75.509 applies when electrical work
is to be performed on a machine or a machine trailing cable.
* * *
"Trouble shooting or testing" for the purpose
of Section 75.509 would include the work of locating
a problem in the electric circuits of an energized
machine, but would never include the actual repair
of such circuits with the machine energized.
MSHA's Electrical Manual makes similar policy statements about
the application of section 75.509 and states that examples of
trouble shooting or testing which may be performed with equipment energized includes "[v]oltage and current testing" (Exhibit 8, page 48).

896

Badger's brief (p. 10} argues that Lanlbert, the electrician who is charged with having violated section 75.509, was
doing precisely the kind of trouble shooting or testing which
MSHA's manuals define as permissible activities under section
75.509.
Badger's brief (p. 11} concludes, therefore, that Lambert did not violate section 75.509 and that the citation should
be vacated.
The Secretary's Arguments
The Secretary's brief (p. 10} contends that Lambert, as a
trained and certified electrician, should have been able to determine the cause of the circuit breaker's malfunction without having the circuit breaker energized. As proof that it was not
necessary to have the circuit breaker energized to determine the
cause of the malfunction, the Secretary notes that the investigating team of seven persons was able to determine the cause of
the malfunction with the power off by using an ohmmeter. The
Secretary concedes that it took the team 3-1/2 hours to find the
malfunction, but argues that time is not a factor to be considered where safety is involved.
The Secretary cites Judge Kennedy's decision in Consolidation
Coal Co., 2 FMSHRC 866 (1980}, and argues that Judge Kennedy's
holding in that case to the effect that a restricted application
of section 75.509 "* * * is contrary to the exception which permits troubleshooting with the power on where the evidence shows,
as it does here, that without the power on the trouble found was
not reasonably susceptible of correction" (2 FMSHRC at 867).
The Secretary supports his argument by stating that section 75.509
"* * * prohibits trouble shooting with the power on only where it
can be shown that the trouble encountered is reasonably susceptible of repair without power on" (Secretary's brief, p. 11}. The
Secretary says that the foregoing assertion was proven to be correct in this proceeding because (Br., p. 11}:

* * * The testimony offered on behalf of MSHA at
trial establishes the fact that the problem was
reasonably susceptible of being located and repaired
without power. Thus, the more limit~d meaning of
the regulation--trouble shooting without power on-rather than the exception, was applicable in this
case.
The Secretary also notes that Lambert was not wearing any
type of protective clothing and that if he had worn protective
clothing, the accident might not have resulted in his death.

897

The Preponderance of the Evidence Does Not Support a Finding of
a Violation of Section 75.509
MSHA did not challenge at the hearing the fact established
by Badger to the effect that Lambert was a well-qualified electrician who had had nearly 11 years of experience as an underground electrician and who had been a shift maintenance foreman
for 3 years and 9 months (Finding No. 2, supra). He had discovered the malfunction in the circuit breaker on Friday and had
advised the chief electrician of that fact.
Lambert also volunteered to come in on the following Saturday for the purpose of
repairing the malfunction. He cut off all power to the circuit
breaker and locked the gate which had to be opened before anyone
could reenergize the circuit breaker (Finding Nos. 2 and 3,
supra). After examining the circuit breaker with the power off,
he found a loose· connection on the shunt trip coil and believed
that was the cause of the malfunction. At that time, he had the
chief electrician, Guy Steerman, to reenergize the circuit
breaker so that he could trouble shoot or test the performance
of the coil.
Lambert's testing failed to show that the malfunction had anything to do with the loose wire which he had previously discovered (Finding No. 4, supra).
Lambert's checking of the circuit breaker was interrupted
by his attendance of a foremen's meeting on the surface of the
mine. After the meeting, Lambert discussed the malfunction of
the circuit breaker with the chief electrician and another
management employee.
During the discussion, Lambert was asked
to check two terminals in the low-voltage portion of the circuit
breaker with a voltmeter (Finding Nos. 5 and 6, supra).
Lambert returned underground and examined the circuit
breaker for an additional period without having the equipment
energized.
Lambert then removed the cover from the circuit
breaker to facilitate his examination of the low-voltage terminal board, but, in doing so, he also removed the insulated
protective shield over the high-voltage portion of the circuit
breaker (Finding No. 24, supra; Exhs. H and 10). Lainbert then
had Steerman reenergize the circuit breaker so that he could
check the low-voltage terminal board. Steerman did not know,
when he reenergized the circuit breaker, that Lambert had removed the protective shield over the high voltage portion of
the circuit breaker (Finding No. 24, supra).
The preponderance of the evidence, therefore, shows that a
well trained and qualified electrician had tried to determine
the cause of the malfunction after considerable examination of
the deenergized circuit breaker. He had then discussed the
problem with his supervisor, the chief electrician, and with
another supervisory employee who had requested that the lowvol tage terminal board be checked (Finding No. 25, supra).

898

Lambert's having the circuit breaker reenergized was done only
after he had exhausted his ability to locate the malfunction
without energizing the equipment to test some components suspected of being defective.
In such circumstances, the evidence
shows that Lambert was following the provisions of section
75.509.
The Secretary's argument to the effect that the investigating team found the cause of the malfunction by trouble shooting
and testing with the power off is not supported by the preponderance of the evidence.
It is true that an investigating team
composed of an electrical engineer and six other persons having
a great deal of electrical training and experience examined the
circuit breaker for 3-1/2 hours with the power off and thought
that they had traced the malfunction to excessive wear in the
auxiliary switch. They formed that erroneous conclusion despite
the fact that the trip counter on the circuit breaker showed
only 230 operations when, in fact, the switch should have worked
for thousands of times before wearing sufficiently to malfunction because of excessive wear (Finding No. 21, supra).
The Secretary's claim that the investigating team had discovered the cause of the malfunction by deenergized trouble
shooting is refuted by the fact that when the malfunctioning
circuit breaker was removed from the mine so that a new auxiliary
switch could be installed, the circuit breaker continued to malfunction.
Thereafter, Badger's personnel replaced a vacuum
bottle and other parts but the circuit breaker continued to malfunction.
After 3 days of testing with the power on and off,
it was finaLly determined that there was a design flaw in the
operating handle on the circuit breaker.
It was necessary for
the manufacturer of the circuit breaker to redesign and reconstruct the parts in the operating handle before the circuit
breaker ever performed properly (Finding No. 27, supra; Exhs. J
and N).
The preponderance of the evidence shows that the investigating team of seven electricians could not and did not find
the cause of the malfunction with the power off the circuit
breaker. Moreover, modified Order No. 634063, which was issued
on September 20, 1980, under section 103(k) of the Act, withdrew miners from the area of the defective circuit breaker until the malfunction was corrected, but that order was terminated
5 days before the circuit breaker was actually repaired with the
statement that "[t]he auxiliary switch for the breaker control
circuit of the Line Power 12,470 vacuum circuit breaker S.N.
4986 has been repaired by a factory service representative''
{Exh. A, p. 4).
The termination of Order No. 634063 was written
by the same inspector who wrote the order citing Badger for a
violation of section 75.509.
The inspector's entry on the term~
ination sheet shows that he did not actually know what was wrong
with the circuit breaker having Serial No. 4986.

899

In the circumstances discussed above, the Secretary is also
incorrect in contending that the statement by Judge Kennedy in
his Consolidation decision, supra, is inapplicable to the facts
in this proceeding. The circuit breaker which malfunctioned in
this instance was a very complex piece of equipment which had
been designed by Badger's chief electrical engineer and constructed by Line Power Manufacturing Company in accordance with
his specifications. Consequently, the belief expressed by Judge
Kennedy in the Consolidation case may appropriately be used in
this proceeding, namely, that a restricted application of the
provisions of section 75.509 is irreconciliable with the ex~ep
tion in that section "* * * which permits troubleshooting with
the power on where the evidence shows, as it does here, that
without the power on the trouble found was not reasonably susceptible of correction" (2 FMSHRC at 867).
Inasmuch as Badger's electrical maintenance foreman tried
to determine the cause of the malfunction with the power off,
and performed trouble shooting and testing with the power on,
only after such testing with the power on became essential for
locating the malfunction, I find that Badger did not violate
section 75.509 as alleged in Order No. 631937.
The Question of Whether Section 75.511 Was Violated
Badger's Arguments
Badger's brief (p. 11) begins its discussion of the alleged
violation of section 75.511 by first quoting the pertinent portion of section 75.511 with emphasis on the word "persons", as
used throughout the section, as follows:
No electrical work shall be performed * * *
except by a qualified person or by a person trained
to perform electrical work * * *· Disconnecting
devices shall be locked out and suitably tagged by
the persons who perform such work * * * such devices
shall be opened and suitably tagged by such persons.
Locks or tags shall be removed only by the persons,
or if such persons are unavailable, by persons
authorized by the operator or his agent.
[Emphasis
supplied by Badger.]
Badger argues that the Secretary's interpretation of section 75.511 is unreasonable because he argues that only the person who locks out power to equipment is permitted to remove the
lock if that person· is anywhere at the mine site. Badger's
brief contends that the use of the word "persons" in the plural
shows that the Secretary understands that in many instances
several persons will be performing electrical work or testing
on equipment.
In such circumstances, Badger's brief (p. 12)
claims that when more than one person is working on the equipment,

900

the regulation clearly permits any of the persons who are working
on the equipment to reenergize the equipment for testing because
each of them would be a person who would be aware of the dangers
involved and of the precautions to be taken.
Badger further notes that the disconnecting device here involved was located 4,800 feet from the circuit breaker so that
Lambert would have had to make a round trip of almost 2 miles
just to cut the power on and off to the circuit breaker. Badger
argues that the purpose of the regulation is to insure that reenergizing does not occur accidentally when individuals are performing electrical testing or work on machinery.
Badger claims that if the Secretary intended that the person
who deenergizes equipment must be the person who reenergizes that
equipment, if that person is anywhere at the mine site, he should
have written section 75.511 to so provide.
Badger's brief (p. 13)
contends that the Secretary did not so provide because he recognized that i t is necessary in an industrial society for workers
to rely upon each other in the performance of difficult and dangerous tasks--such as crane operators who move heavy loads while
being directed by fellow workers.
Finally, Badger argues that the last sentence of section
75.511 should be interpreted to mean that the ·person who deenergized equipment is unavailable at the mine site for the purpose
of reenergizing the equipment, if the person who originally deenergized the equipment is 1.8 miles, or a greater distance than
that, from the place where the disconnects were opened and locked
out.
The Secretary's Arguments
The Secretary's brief (p. 9) maintains that section 75.511
should be interpreted exactly as written, that is, that the person who locks out or tags equipment is required to be the person
who removes the lock and restores power to the equipment. The
Secretary contends that no exception should be granted just because the disconnecting device is a considerable distance from
the equipment being worked on because the safety considerations
are more important than the factors of time or distance.
The Preponderance of the Evidence Shows that a Violation of
Section 75.511 Occurred
I do not believe that Badger's argument to the effect that
the use of the word "persons" in the plural in section 75.511
means that if several persons are working on electrical equipment, any single person may be permitted to reenergize equipment
regardless of whether he is the individual who deenergized the
equipment in the first instance.
The initial sentence in section
75.511 provides that no "person" shall perform work on electrical

901

equipment unless he is qualified to do so or is directly supervised by a qualified person. The next two sentences of section
75.511 switch to the use of the word "persons" in the plural,
but the next two sentences also refer to "disconnecting devices"
in the plural and to "locks" and "tags" in the plu~al.
Therefore, I believe that the use of the word "persons" in the plural
has no significance other than an intent by the Secretary to be
all inclusive so that no one is likely to conclude that any particular type of disconnecting device or tag is exempt from the
provision that the person who deenergizes is also required to be
the person who reenergizes.
The interpretation advocated by Badger would promote lack
of safety because any one of "several" persons working on equipment could decide that it was time to test or trouble shoot with
the power on and proceed to turn on the power before it was entirely clear to all persons that power was going to be restored.
Badger's other argument, however, has considerable appeal,
that is, that Lambert was still, in effect, in charge of turning
the power on and off because Steerman was standing by the telephone for the sole purpose of receiving specific instructions
from Lambert as to when Lambert wanted the circuit breaker energized and when he wanted it deenergized.
Badger is correct in
contending that the purpose of section 75.511 is to assure that
reenergizing does not occur accidentally when individuals are
performing electrical testing or work on equipment. Section
75.511 is a statutory provision which appeared as part of section 305(f) of the Federal Coal Mine Health and Safety Act of
1969. House Report No. 91-563, reprinted in the Legislative
History of the Federal Coal Mine Health and Safety Act of 1969
explained the intent of section 75.511 as follows (Leg. Hist.,
p. 1078 or Report, p. 48):

* * * Switches must be locked in an open position
where the power is disconnected to prevent accidental
reclosing.
The persons performing the work must retain possession to the key to guard against such
reclosing.
Although the legislative history supports Badger's claim
that the purpose of section 75.511 is to assure that equipment
on which a person is working will not be accidentally reenergized, the remaining portion of Badger's argument fails to provide that assurance. When all of the facts are considered, it
is clear that Lambert and Steerman violated both the spirit and
the letter of section 75.511.
The first point which is important is that when Lambert
deenergized the circuit breaker on the morning of September 20,
1980, he opened the switch on the su~face to stop power from

902

flowing to the underground circuit breaker which was located
4,800 feet from the disconnecting switch. Lambert then locked
the gate through which a person had to pass to close the disconnecting switch, but Lambert violated the letter and spirit of
section 75.511 by placing the key to the lock behind a highvoltage sign instead of retaining possession of the ~ey to assure
that someone else did not know the hiding place of the key so as
to remove it from behind the high voltage sign for the purpose of
entering the area where the disconnecting switch was located.
If Lambert had kept the key in his possession, as was intended by Congress when it drafted section 75.511, Lambert would
have been unable to call Steerman later in the morning for the
purpose of asking Steerman to reenergize the circuit breaker.
Since Steerman did not participate in the locking out of power
to the circuit breaker, Badger's argument is flawed in contending
that Lambert and Steerman complied with the spirit, if not the
letter, of section 75.511, because both of them were among the
"persons" who locked out the power for the purpose of working on
the circuit breaker.
The second point which is important is that, after lunch,
when Lambert returned underground to work on the circuit breaker,
he asked Steerman to stay near the telephone which was close to
the disconnecting switch in the substation so that Lambert could
give Steerman instructions as to when Lambert wanted the circuit
breaker energized and when he wanted it deenergized. At that
point in Lambert's work on the circuit breaker, no person (in
the singular or plural) actually locked out the power because
Steerman did not consider it necessary to lock out the power
since he was within sight of the substation at all times (Finding Nos. 5 and 6, supra).
The only exception in section 75.511
to the requirement that the power be "locked out" is "* * *
where locking out is not possible". Since Lambert had locked
out the power in the first instance before going underground on
the mqrning of September 20, there is no doubt but that the disconnecting switch was capable of being locked out. Therefore,
Lambert and Steerman clearly violated section 75.511 when
neither one of them locked out the power in the afternoon when
Lambert returned underground to work on the circuit breaker.
As a matter of fact, section 75.511 does not specifically refer
to the reclosing of the switch or the reenergizing of equipment.
The last sentence of section 75.511 refers only to the fact that
the persons who install the locks or tags shall be the persons
who remove the locks or tags.
For the reasons given above, I find that the preponderance
of the evidence supports a finding that Badger violated section
75.511.
Since I have found that Badger violated section 75.511
by failing to lock out the power to the circuit breaker, it is
actually unnecessary for me to decide the arguments about

903

Lambert's unavailability and whether a person other than the one
who deenergizes may reenergize if the disconnecting switch is
4,800 feet from the equipment being tested, but I shall give my
views on those points so that Badger may argue them before the
Commission if a petition for discretionary review should be
granted by the Commission.
I agree with the Secretary that the matter of reenergizing
high-voltage equipment which is being worked on or tested is a
matter of vital importance to the safety of the miners.
The
question of the distance between the equipment and the disconnecting switch should not be allowed to take precedence over the
importance of assuring that equipment does not accidentally become reenergized while it is being worked on or tested.
I also
agree with the Secretary that so long as the person who locks
out equipment is available at the mine, he is available for the
purpose of removing the locks and reenergizing the equipment.
As indicated above, Congress intended that the person who locks
out the equipment be the person who is going to perform the work
and Congress also intended that the person who locks out the
equipment be the person who retains possession of the key.
The
aforesaid considerations assure that the person who has the key
will also be the person who removes the lock.
If Lambert had
retained possession of the key, as intended by Congress, it
could hardly have been argued that he was "unavailable" for the
purpose of removing the lock.
DOCKET NO. WEVA 81-37-R
The Question of Whether Section 75.803 Was Violated
Badger's Arguments
The violation of section 75.803 was alleged in Citation No.
631938 issued September 22, 1980, pursuant to section 104(a) of
the Act.
The condition or practice described· in the citation
is given in full in Finding No. 19, supra.
Briefly, the violation cited was the failure of Badger to have an operative failsafe ground check system which would remove power from the'mine
in case a grounding circuit was broken.
Section 75.803 provides
as follows:
On and after September 30, 1970, high-voltage,
resistance grounded systems shall include a fail
safe ground check circuit to monitor continuously
the grounding circuit to assure continuity and the
fail safe ground check circuit shall cause the circuit breaker to open when either the ground or pilot
check wire is broken, or other no less effective
device approved by the Secretary or his authorized
representative to assure such continuity, except
that an extension of time, not in excess of 12
months, may be permitted by the Secretary on a mineby-mine basis if he determines that such equipment
is not available.

904

Badger's brief (p. 15) states that MSHA cited it for a
violation of section 75.803 because Badger continued to mine
coal after it was determined that the circuit breaker had malfunctioned.
Badger claims that it learned of the problem during
the 4 p.m. to midnight shift on Friday, September 19, 1980, and
that the next shift was a maintenance shift which began at 8 a.m.
and ended at 4 p.m. on Saturday, September 20, 1980. Badger
states that the only persons in the mine on Saturday were two
men who were working on a continuous-mining machine and some
other men who were doing track work (Finding nos. 4 and 6, supra}.
Badger's brief (p. 15) concedes "* * *that the vacuum circuit
breaker was not doing what it should have been capable of doing,
but this was due to a design defect and not a failure on the part
of Badger, or a failure to continuously monitor the grounding
circuit." Badger also notes that the miners who were working in
the mine on Saturday were aware of the fact that Lambert was working on the circuit breaker during their shift.
Badger also contends that any finding of a violation of ·section 75.803 must rest on the basis that the circuit breaker was
being tested in the mine as opposed to removing it to the surface
for testing. Badger asserts that finding a violation on the
failure to remove the circuit breaker to the surface would be a
strained construction of the section and would be unwarranted in
the circumstances which existed in this instance.
The Secretary's Arguments
The Secretary's brief (pp. 13-14) argues that Citation No.
631938 correctly alleges a violation of section 75.803. The
Secretary claims that the fail-safe ground check circuit would
not cause the circuit breaker to open or shut off power because
the auxiliary switch was inoperative.
It is further asserted
that if the auxiliary switch does not work, then the ground monitor system cannot cause the circuit breaker to trip when either
the ground check wire or ground wire is broken.
The Secretary
maintains that since the fail-safe ground check system could not
do the job it was intended to do, there was a violation of section 75.803.
The Preponderance of the Evidence Supports a Finding of a
Violation of Section 75.803
There is some confusion by the parties as to what is being
charged by the Secretary with respect to the violation of section
75.803.
As I have hereinbefore explained in the portion of this
decision devoted to the discussion of the imminent-danger issues,
the MSHA employees who participated in citing Badger for a violation of section 75.803 did not actually know at the time they
cited Badger for a violation of section 75.803 what was causing
the circuit breaker to malfunction.
The Secretary's brief (pp.
13-14) continues to allege that the circuit breaker did not work

905

because the auxiliary switch was defective. As explained in
Finding Nos. 27 through 30, the actual cause of the circuit
breaker's malfunction was a mechanical problem in the design of
the ratchet lever constructed by Line Power Manufacturing Company. Therefore, Citation No. 931938 contains some factual
statements which are not supported by the preponderance of the
evidence.
The fact remains, however, as conceded by Badger in its
brief (p. 15), that the circuit breaker would not turn off the
power as it was supposed to do. Badger's electrical engineer,
who designed the circuit breaker, also conceded that the circuit
breaker would not cut off the power, but he argued that Badger
had not violated section 75.803 because the ground monitoring
system was working in a technical fashion because it was monitoring the continuity of the grounding circuit.. Consequently,
the difficulty with the parties' arguments is that neither one
specifically addresses the defects in the other's .arguments.
All that is required to violate section 75.803 is for the failsafe ground system not to "* * * cause the circuit breaker to
open when either the ground or pilot check wire is broken."
It is technically correct, as Badger claims, that the failure of the circuit breaker to cut off power was not specifically
related to the ground or pilot check wire because the actual
·
trouble was confined to the design flaw in the ratchet lever as
stated in Finding Nos. 27 through 30, supra. Nevertheless, it
is also correct, as the Secretary argues, and as Badger concedes,
that the circuit breaker was not doing what it was constructed
to do. Section 75.803, like section 75.511, is a statutory
provision which was a part of the 1969 Act, as indicated above.
The legislative history or House Report No. 91-563 states with
respect to section 75.803 or section 308(d} of the Act (History,
p. 1081 or Report, p. 51) that "[s]ubsection (d) requires that
fail-safe ground check system be installed with each underground
high-voltage circuit to remove the power in case the grounding
circuit is broken."
It is obvious, therefore, that Congress intended for the
fail-safe ground check system to cut off the power in case a
grounding fault occurs. The use of the term "fail safe" is
meaningless if it can be argued that the fail-safe ground check
system was working and yet could not cut off the power because
of a mechanical problem, instead of an electrical problem.
Although MSHA failed to terminate Order No. 631937 for the
right reason, it did terminate Citation No. 631938 for the correct reason, namely,· that the fail-safe ground check system was
restored to proper operation by the removal of the defective
circuit breaker from the mine and replacement by a circuit
breaker which worked properly.
In other words, regardless of

906

the technicality of what was actually inoperative about circuit
breaker Serial No. 4986, it is a fact that the fail-safe ground
check system was restored to an operative condition when the defective circuit breaker was removed from the mine and replaced
with an operative circuit breaker.
Therefore, I find that a
violation of section 75.803 occurred as alleged and that Citation
No. 631938 should be sustained because it is a fact that the circuit breaker was an integral part of the fail-safe ground check
system in that i.t prevented the system from doing the job it was
placed in the mine to do, namely, cut off power when an electrical fault occurred.
Since Badger's notice of contest filed in Docket No. WEVA
81-37-R was filed to challenge the question of whether a violation of section 75.803 had been properly alleged in Citation No.
631938, Badger's notice of contest will hereinafter be denied
and Citation No. 631938 will be affirmed as having properly alleged a violation of section 75.803.
CIVIL PENALTY ISSUES
DOCKET NO. WEVA 81-285
The Secretary's petition for assessment of civil penalty
filed in Docket No. WEVA 81-285 seeks assessment of civil penalties for the violations of sections 75.509 and 75.511 alleged in
imminent-danger Order No. 631937 hereinbefore considered.
I
have previously found that no violation of section 75.509 occurred. Therefore, the Secretary's petition for assessment of
civil penalty will hereinafter be dismissed to the extent that
it seeks assessment of a penalty for the violation of section
75.509.
In assessing a penalty for the violation of section 75.511,
which I have found·did occur, I shall use the six criteria
listed in section llO(i) of the Act, rather than the penalty
formula explained in 30 C.F.R. § 100.3 and used by the Secretary
for the purpose of proposing civil penalties (Rushton Mining Co.,
1 FMSHRC 794 (1979); Shamrock Coal Co., 1 FMSHRC 799 (1979);
Kaiser Steel Corp., 1 FMSHRC 984 (1979); U.S. Steel Corp., 1
FMSHRC 1306 (1979); Pittsburgh Coal Co., 1 FMSHRC 1468 (1979);
Peabody Coal Co., 1 FMSHRC 1494 (1979); Co-Op Mining Co., 2
FMSHRC 784 (1980); and Sellersburg Stone Co., 5 FMSHRC 287
(1983)).
Assessment of a Penalty for the Violation of Section 75.511
Size of Badger's Business
The parties stipulated to the facts given in Finding No. 1,
supra. The production tonnage and other facts given in Finding

907

No. 1 support a conclusion that Badger is a large operator and
that any civil penalties assessed in this proceeding should be
in an upper range of magnitude insofar as they are determined
under the criterion of the size of Badger's business.
The Question of Whether the Payment of Penalties Will Cause
Badger To Discontinue in Business
Badger did not present any evidence at the hearing pertaining to its financial condition and none of the stipulated findings of fact address the question of whether the payment of penal ties would cause Badger to discontinue in business. The
Commission held in the Sellersburg case, supra, that a judge may
conclude that payment of penalties would not cause a company to
discontinue in business if it fails to present any evidence in
support of that contention. Therefore, I find that any penalties
which may be assessed in this proceeding need not be lowered
under the criterion that Badger is in a difficult financial condition.
History of Previous Violations
It was stipulated in Finding No. 31, supra, that during the
24 months preceding the occurrence of the violations alleged in
this proceeding that Badger had paid penalties with respect to
52 alleged violations.
It has been my experience that the occurrence of 52 violations over a period of 2 years is not unusu'al
for a large operator. Also it has always been my practice to
consider the question of whether an operator has previously violated the same section of the regulations for which I am required
to assess a civil penalty in a given case. Badger has not previously violated sections 75.511 or 75.803.
If Badger had had no
history of ·previous violations, I would have reduced any penalty
otherwise assessable; if Badger had had a history or previously
violating sections 75.511 or 75.803, I would have increased the
penalty somewhat. Therefore, Badger's rather favorable history
of previous violations justifies a finding that the penalties
otherwise assessable be neither increased nor decreased under
the criterion of history of previous violations.
Good-Faith Effort To Achieve Rapid Compliance
MSHA required Badger to obtain the signatures of all its
electricians on a piece of paper to show that all of them would
trouble shoot or test equipment with the power on only when absolutely necessary and would personally unlock and reenergize
any equipment which they had deenergized in the first instance.
That list contains 65 names or signatures and they were all obtained within a 2-day period (Exh. 6). Since the electricians
worked on three different shifts, it appears that Badger obtained their signatures in an unusually short period of time,

908

especially when it is considered that Badger thought that abatement of the violation was based entirely upon its having promptly removed from the mine the defective circuit breaker which had
originally been cited as the source of the imminent danger alleged in Order No. 631937 (Finding No. 26, supra).
In the circumstances described above, I believe that any
penalty hereinafter assessed for the violation of section 75.511
should be reduced by $100 for Badger's outstanding effort to
achieve rapid compliance.
Negligence
Badger's brief (p. 16) refers to some inspectors' statements
evaluating gravity and negligence which were submitted as a part
of Badger's brief. MSHA failed to introduce the inspectors'
statements as a part of the record and they were not submitted
as a part of the Secretary's petition for assessment of civil
penalty in Docket No. WEVA 81-285.
The inspectors testified at
the hearing, however, that they believed the violation of section
75.511 contributed to Lambert's electrocution (Finding No. 22,
supra).
Therefore, I do not believe that the inspectors' statements submitted as a part of Badger's brief make any allegations
which were not made at the hearing.
I have already held that the complexity of the circuit
breaker and the unusual design flaw which caused the circuit
breaker to malfunction justified Lambert's having performed
trouble shooting with the power on.
In trying to evaluate the
question of Badger's negligence with respect to the violation of
section 75.511 here under consideration, it is necessary to consider whether Lambert would have acted any differently from
the way he did act if he had personally gone back to the surf ace
substation for the purpose of removing the lock and reenergizing
the circuit breaker. The evidence certainly shows that Lambert
knew the power was on at the time he was trouble shooting and
fell into the high-voltage portion of the circuit breaker (Finding Nos. 6 and 24, supra).
It is undisputed that Lambert, upon his own initiative, removed the insulated protective board which covered the highvoltage portion of the circuit breaker. Lambert did not discuss
with Steerman on the telephone that he had removed the insulated
board and Steerman stated that he would have instructed him to
replace the board before trouble shooting with the power on if
he had known that Lambert had removed the board (Finding No. 24,
supra).
Exhibits E, H, and 10 in tbis proceeding show that the
insulation board covered nearly all of the interior of the highvol tage portion of the circuit breaker and support to some extent Badger's claims that Lambert had sufficient room to trouble
shoot on the low-voltage portion of the circuit breaker without
coming into contact with the high-voltage components.

909

The facts in this proceeding are somewhat like those in
Nacco Mining Co., 3 FMSHRC 848 (1981), in which the Commission
held that the operator was not negligent when a foreman with
proper training, who had previously shown good judgment in discharging his responsibilities, acted aberrently by exposing
himself to unsupported roof, in a wholly unforeseeable manner,
which resulted in his death.
I do not believe, however, that
the Commission's finding of no negligence in the Nacco case
should be applied in this proceeding because, in this proceeding,
other supervisors also contributed to Lambert's trouble shooting
and testing with the power on by asking Lambert to check the lowvoltage terminal board.
The other supervisors were fully aware
of the proximity of the low-voltage terminal board to the highvoltage portion of the circuit breaker.
Therefore, they should
have made certain that Lambert did his own locking and unlocking
of the disconnecting switch in the substation. Steerman's failure to lock out the switch while he was awaiting for instructions from Lambert on the telephone could have resulted in an
inadvertent reenergizing of the circuit breaker at a time when
Lambert was not prepared to trouble shoot with the power on.
If
Steerman had been distracted by some other event at the mine,
there is a possibility that the disconnecting switch could have
become thrown accidentally so as to catch Lambert with the power
on in the circuit breaker at a time when he was not prepared to
trouble shoot or test with the power on.
Additionally, if Lambert had come to the surface to reenergize the circuit breaker because of Steerman's refusal to reenergize the circuit breaker for Lambert, Steerman's adherence
to strict safety rules might well have caused Lambert to work
around the circuit breaker with an increased amount of care
which might have prevented his coming into contact with the
high-voltage components which caused his death.
It is also
possible that if Lambert had come to the surf ace to reenergize
the circuit breaker, he would have mentioned that he had remov~d the protective shield over the high-voltage components
and that would have given Steerman the opportunity to learn of
his lack of prudence so that he could have instructed Lambert
to replace the protective shield before he did any trouble
shooting or testing with the power on.
It is true that the discussion above is based on speculation, rather than facts, but there have been many deaths by
electrocution in coal mines and it is difficult to show that
management was not in any way negligent in the way power was
turned off and on to the circuit breaker while Lambert was
trouble shooting and testing.
Therefore, I find that the violation of section 75.511 was associated with ordinary negligence.
The Secretary's brief (p. 15) argues that Badger was grossly negligent in allowing the violations of section 75.509 and

910

75.511 to occur. The Secretary's discussion of gross negligence
includes an argument that Lambert had no reason to feel that he
had to trouble shoot or test the circuit breaker with the power
on.
I have hereinbefore shown that the evidence fails to support
that contention.
I am agreeing with the Secretary's argument to the extent
of finding that Badger showed ordinary negligence in connection
with the violation of section 75.511, but I do not think that
Steerman's participation in the turning of power on and off to
the circuit breaker rises to the level of gross negligence because it is a fact that Steerman did remain by the telephone
near the substation so as to be able to act immediately to any
instructions which Lambert might give him.
If Steerman had gone
back to his office and waited for calls from Lambert or had been
indifferent about the hazards associated with taking directions
from Lambert as to the deenergization and reenergization of the
circuit breaker, I would agree that the violation was associated
with gross negligence.
Based on the discussion of negligence above, I find that
the portion of the penalty to be assessed for the violation of
section 75.511 under the criterion of negligence should be $1,000.
Gravity
When it is considered that Lambert was working on a circuit
breaker whose high-voltage components carried 12,470 volts and
that the low-voltage portion of the circuit breaker was located
about 12 inches from the insulated high-voltage components (Exhs.
E and H), a finding must necessarily be made that it was very
serious for Badger's management to fail in any way to follow explicitly all safety precautions associated with trouble shooting
or testing such equipment. Badger's arguments to the effect
that Lambert's death was not in any way caused by Badger's failure to follow the lock-out procedures required by section 75.511
is based entirely on conjecture because there were no eye witnesses to Lambert's electrocution (Finding Nos. 7 and 8, supra).
While it is true that my discussion above under the heading of
"Negligence" was also based on speculation, Badger's claim that
Lambert slipped and fell into the high-voltage components because
of his carelessness in removing the insulated protective shield
over the high-voltage components is also based on pure speculation.
It is just as possible that Lambert was trying to test
the low-voltage portion of the circuit breaker and accidentally
touched a high-voltage component with the result that he was
severely shocked and fell head first into the circuit breaker
(Finding No. 7, supra).
Inasmuch as the violation was one of
extreme gravity, I believe that the portion of the penalty
associated with gravity should be $2,000.

911

Summary
I have hereinbefore found that Badger is a large operator,
that payment of penalties will not cause it to discontinue in
business, that it has ~ favorable history of previous violations,
that it showed an outstanding effort to achieve rapid compliance
requiring a reduction in the penalty otherwise assessable in the
amount of $100, that the violation was associated with ordinary
negligence warranting a penalty of $1,000, and that the violation
was very serious so as to merit a penalty of $2,000. The penalties under negligence and gravity amount to $3,000 which should
be reduced by $100 under rapid good-faith abatement to $2,900.
The total penalty, of course, takes into consideration that·Badger is a large operator.
DOCKET NO. WEVA 81-277
The Secretary's petition for assessment of civil penalty
filed in Docket No. WEVA 81-277 seeks assessment of a penalty
for the violation of section 75.803 alleged in Citation No.
631938 issued under section 104(a) on September 22, 1980.
I
have already found that a violation of section 75.803 occurred
because the fail-safe grounding system could not deenergize power
on September 19, 1980.
The findings made above as to the criteria of the size of
Badger's business, the fact that payment of penalties will not
cause Badger to discontinue in business, and Badger's favorable
history of previous violations are also applicable to a determination of the penalty for the violation of section 75.803.
Good-Faith Effort To Achieve Rapid Compliance
Citation No. 631938 was written at 5 p.m. on September 22,
1980, and the citation gave Badger until the next day, September 23, 1980, as the time within which the violation should be
abated.
The inspector wrote a subsequent action sheet on September 23, 1980, terminating the citation on the ground that the
defective circuit breaker had been removed from the mine and replaced with a circuit breaker which would allow the fail-safe
grounding system to cut off power if a fault should occur.
Inasmuch as Badger abated the violation within the time given by
the inspector, I find that Badger demonstrated an average goodfaith effort to achieve rapid compliance and that the penalty
to be assessed for the violation of section 75.803 should neither
be increased nor decreased under the criterion of good-faith
abatement.
Negligence
Badger's chief electrician had drawn up the specifications
which were followed by Line Power Manufacturing Company in constructing the defective circuit breaker. The counter on the

912

circuit breaker showed that it had successfully worked 230 times
so that Badger's management had no reason to believe that it had
a defective design problem in the ratchet lever. Even after the
circuit breaker malfunctioned, a team of seven electrical experts
failed to find the actual cause of the malfunction after spending
3-1/2 hours trying to do so with the power off (Finding No. 21,
supra). After the circuit breaker was removed from the mine, the
parts which the seven experts thought were defective were replaced, but the circuit breaker still continued to malfunction.
Badger's chief electrician and the manufacturer's employees
worked the remainder of the week of September 21, 1980, before
finally discovering on Thursday, September 25, 1980, that the
malfunction was caused by a design flaw in the ratchet in the
operating handle.
The ratchet was redesigned on Friday and Saturday and a new one, which worked successfully, was installed on
Monday, September 29, 1980. The evidence shows, therefore, that
Badger's management did not know and could not have foreseen
that the circuit breaker would malfunction in the way that it
did.
The Secretary's brief (p. 16), however, argues that Badger
was grossly negligent in allowing the power to remain on in the
mine while miners worked for the remainder of the 4 p.m. to midnight production shift on Friday, September 19, 1980, which was
the shift during which Lambert found that the circuit breaker
would not cut off power when he tested it for that purpose (Finding No. 2, supra).
Badger's brief (p. 15) is silent about the
fact that miners were allowed to work for the remainder of the
4-p.m.~to-midnight production shift after the defective circuit
breaker was discovered, but argues that the only persons who
worked in the mine while Lambert was trying to discover the defect in the circuit breaker on the 8 a.m.-to-4 p.m. maintenance
shift on Saturday, September 20, 1980, were seven miners who
worked on a continuous-mining machine and some other miners who
worked on a haulage track. Badger's brief claims that the miners
working on September 20, 1980, were aware that the circuit
breaker was being worked on and that the power would be cut on
and off during their shift.
Badger's chief electrical engineer conceded that the circuit breaker would not cut off power as it was supposed to at
the time Lambert discovered that the circuit breaker was malfunctioning (Finding Nos. 2 and 28, supra).
Since Lambert had
reported the malfunction to Badger's chief electrician, there
is no way for Badger to deny that miners were allowed to work
on the 4 p.m.-to-midnight production shift on Friday, September 20, 1980, without having proper protection from an electrical fault if one had occurred.
It is also true that two mechanics were allowed to work on a continuous-mining machine on
Saturday, September 20, 1980, at the time Lambert was trying to
determine what was wrong with the circuit breaker. While power
was off part of the time, it was also on part of the time.
Therefore, any miners working on electrically powered equipment

913

were subjected to a possible injury if power had come on at a
time when they were not expecting it.
Therefore, the preponderance of the evidence supports the
Secretary's argument that Badger's management knew the circuit
breaker would not cut off power in case of an electrical fault
and yet Badger allowed the miners to work on the 4 p.m.-tomidnight shift on Friday and allowed two mechanics to work on a
continuous-mining machine on Saturday without having the protection to which they were entitled.
In such circumstances, I find
that there was a high degree of negligence associated with the
violation of section 75.803 and that a penalty of $3,000 should
be assessed for that violation under the criterion of negligence.
Gravity
While the miners working in the mine were undoubtedly exposed to a possible shock hazard because of the malfunctioning
circuit breaker, no one other than Lambert was actually working
close to a high-voltage circuit.
Some electrical fault would
have had to occur before any miner working on either the 4 p.m.to-midnight shift on Friday or the 8 a.m.-to-4 p.m. shift on
Saturday could have been injured.
Lambert was not working on
the circuit breaker on Friday and his exposure to electrocution
on Saturday was not increased by the fact that two mechanics were
working on a continuous-mining machine.
Therefore, the gravity
of the violation of section 75.803 should be examined primarily
from the standpoint of the miners who were working in the mine
on the 4 p.m.-to-midnight shift on Friday.
Some electrical fault
would have had to occur before any of the miners working on Friday would have been exposed to a shock hazard. There is no evidence to show that such a fault occurred or that any other electrical equipment in the mine was defective.
Therefore, the
gravity of the violation of section 75.803, while serious, was
not as extreme as Lambert's exposure was when he was trouble
shooting in close proximity to 12,470 volts with the power on.
For the foregoing reasons, a penalty of $750 will be assessed
under the criterion of gravity for the violation of section
75.803.
Summary
Bearing in mind that Badger is a large operator, that payment of penalties will not cause it to discontinue in business,
that it has a favorable history of previous violations, that it
demonstrated an average effort to achieve rapid compliance, that
there was a very high degree of negligence associated with the
violation warranting assessment of a penalty of $3,000, and that
the violation was sufficiently serious to justify a penalty of
$750, a total penalty of $3,750 will hereinafter be assessed for
the violation of section 75.803.

914

The Request for Finding No. 34
When the parties were suggesting changes in the proposed
findings of fact which had been mailed to them, Badger's counsel
requested in a draft filed on July 19, 1983, that I include as
part of the stipulated findings one which he had suggested as
No. 34 in the draft, that he had submitted for my consideration.
The Secretary's counsel was opposed to inclusion of that proposed finding, and I was also of the opinion that it was more in
the nature of a conclusion than a finding of fact.
Badger agreed
to my omitting it as one of the parties' stipulated findings, but
requested in a letter filed on August 29, 1983, that I reconsider
the proposed finding at the time I wrote my decision in this
proceeding.
I believe that my decision shows that it would be inconsistent with other portions of the decision for me to make Badger's proposed finding No. 34 a part of this decision. Therefore, the request that I make finding No. 34 a part of this
decision will hereinafter be denied.
·
WHEREFORE, it is ordered:
(A)
Badger Coal Company's application filed in Docket No.
WEVA 81-36-R for review of imminent-danger Order No. 631937
issued September 22, 1980, is granted and Order No. 631937 is
vacated to the extent that it alleged the existence of an imminent danger.
(B)
Badger Coal Company's notice of contest filed in Docket No. WEVA 81-37-R challenging the validity of Citation No.
631938 issued September 22, 1980, is denied and Citation No.
631938 is affirmed.
(C)
The Secretary's petition for assessment of civil penalty filed in Docket No. WEVA 81-285 is dismissed insofar as it
seeks assessment of a penalty for the violation of section
75.509 alleged in Order No. 631937 issued September 22, 1980,
and granted to the extent that it seeks assessment of a civil
penalty for the violation of section 75.511, and Badger Coal
Company, within 30 days from the date of this decision, shall
pay a civil penalty of $2,900.00 for the violation of section
75.511 alleged in Order No. 631937 issued September 22, 1980.
(D)
The Secretary's petition for assessment of civil penalty filed in Docket No. WEVA 81-277 seeking assessment of a
civil penalty for the violation of section 75.803 alleged in
Citation No. 631938 issued September 22, 1980, is granted, and
Badger Coal Company, within 30 days from the date of this decision, shall pay a civil penalty of $3,750.00 for the violation
of section 75.803 alleged in Citation No. 631938.

915

(E)
Badger Coal Company's request that a proposed finding
No. 34 be made a part of this decision is denied.

~ C. o3.-fA/}.

Steffe~~

Richard c.
Administrative Law Judge

Distribution:
David J. Romano, Esq., Young, Morgan, Cann & Romano, Suite One
Schroath Building, Clarksburg, WV 26301 (Certified Mail)
Covette Rooney, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)

916

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

APR 12 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
MILTON BAILEY,
Complainant

DISCRIMINATION PROCEEDING
Docket No. CENT 81-13-D
MSHA Case No. MADI CD 80-11

v.

Bradley-Stephen No. 1 Mine

ARKANSAS-CARBONA COMPANY,
and
MICHAEL WALKER,
Respondents
DECISION
Before:

Judge Melick

This proceeding is before me on remand from the Commission,
5 FMSHRC at 2056, for a determination in accordance with that
decision of the date on which Mr. Bailey informed the Secretary
that he no longer sought reinstatement and of the back wages and
interest to be awarded Mr. Bailey.
While the Secretary notes that Mr. Bailey informed the
Secretary's representative in April 1983, that he no longer
sought reinstatement, Mr. Bailey claims back wages only until
April 12, 1982, when the Respondents ceased business operations.
The Complainant has therefore recomputed a claim, in accordance
with the Commission's directive, for $21,399.96 in back wages and
$5,091.93 in interest. The claim is not disputed by the
Respondents and is therefore accepted as final.
Wherefore, the Respondents, Arkansas-Carbona Company and
Michael Walker are hereby ordered jo~ntly and severally to pay
to Complainant upon receipt of this aecision, the total amount
of $26,491.89.

y\

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Gary Mel-~ck
~
Assistant Chief Admi°n.istrative Law Judge

.'
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917

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·~~

Distribution:
Eloise v. Vellucci, Esq., Office of the Solicitor, U.S.
Department of Labor, 555 Griffin Square Building, Suite 501,
Griffin and Young Streets, Dallas, TX 75202 (Certified Mail)
James R. Pate, Esq., Sanford, Pate & Marschewski, P.O. Box 1004,
Russellville, AR 72801 (Certified Mail)
Richard Smith, Esq., Pyramid Place, Little Rock AR 72201
(Certified Mail)
Mr. Michael Walker, Route 3, Box 147, Merrilton, AR 72110
(Certified Mail)
/fb

918

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
JAMES McNEIL TAYLOR,
Complainant

APR 12 1984

DISCRIMINATION PROCEEDING

.

Docket No. WEVA 83-241-D
MSHA Case No. HOPE CD-83-25

v.

.

BUCK GARDEN COAL COMPANY,
Respondent

No. 4 Mine

DECISION
Before:

Judge Kennedy

~he parties move for approval of the captioned wrongful
discharge matter upon a showing that the matter has been
compromised and settled to the satisfaction of the complainantminer.

Based on the independent evaluation and de novo review
of the circumstances, I find the settlement proposed is in
the best interest of complainant and in accord with the
purposes and policy of the Act.
Accordingly, it is ORDERED that the motion to withdraw
the complaint be, and hereby is GRANTED. It is FURTHER ORDERED
that in accordance with the terms of the settlement the
operator FORTHWITH pay the lump sum of $1,000 to complainant,
James McNeil Taylor, and thereafter pay to complainant the
sum of $250 on the first day of each succeeding month for a
period of sixteen (16) months, until the total sum of $5,000
has been paid to complainant. Finally, it is ORDERED that,
subject to payment of the sums agreed upon, the captioned
matter be DISMISSED with prejudic •

Judge

919

Distribution:
Catherine Oliver-Murphy, Esq., Office of the Solic~tor,
U.S. Department of Labor, 3535 Market St., Philadelphia,
PA 19104
(Certified Mail)
Richard L. Dailey, Esq., Attorney for Buck Garden Coal
Company, 608 Virginia Street, East, Charleston, WV 25301
(Certified Mail)

/ejp

920

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

MONTEREY COAL COMPANY,
Contestant

APR 13 1984

CONTEST PROCEEDINGS

v.

Docket No. LAKE 84-19-R
Citation No. 2319275; 10/20/83

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

Docket No. LAKE 84-20-R
Order No. 2319279; 10/26/83
Docket No. LAKE 84-42-R
Order No. 2319279-03; 12/22/83
No. 1 Mine
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 84-31
A.C. No. 11-00726-03545

v.
Monterey No. 1 Mine
MONTEREY COAL COMPANY,
Respondent
DECISION
Appearances:

Carla K. Ryhal, Esq., Houston, Texas, for
Contestant/Respondent;
Deborah A. Persico, Esq. and Robert A. Cohen, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Respondent/Petitioner.

Before:

Judge Broderick

STATEMENT OF THE CASE
Contestant, Monterey Coal Company ("Monterey"), filed
notices contesting Citation No. 2319275 issued October 20, 1983
and Order No. 2319279 issued October 26, 1983.
It also filed
a motion to consolidate the cases and to expedite proceedings.
The contested order was subsequently modified and Monterey
contested the modification. The Secretary of Labor ("Secretary"}
filed a civil penalty petition see~ing penalties for the violations alleged in the citation and order.

921

Pursuant to notice, the cases were heard in St. Louis,
Missouri, on January 26 and 27, 1984. The cases were ordered
consolidated for the purposes of hearing and decision. Paris o.
Webb, Arthur Boeck, and Edward J. Lubrant testified on behalf
of the Secretary. Jeffrey Thomas Padgett, Jack Lehmann,
Lennis Isenberg, Richard Mottershaw, Ollie Cox and Charlie Pate
testified on behalf of Monterey. Both parties have filed
posthearing briefs.
Based on the entire record and considering the contentions
of the parties, I make the following decision.
FINDINGS OF FACT
1. Monterey was the operator of Mine No. 1, an underground
coal mine in Macoupin County, Illinois.
2. Monterey is a large operator.
approximately 650 miners.

The subject mine employed

3. The subject mine had a prior history of 378 paid violations within the 24 months prior to the alleged violations contested herein. This history included 23 violations of 30 C.F.R.
§ 75.200 and one violation of 30 C.F.R. § 75.516.
No violations
of 30 C.F.R. § 75.900-1 were shown on the history.
I do not
consider this history such that penalties otherwise appropriate
should be increased because of it.
4.
The alleged violations were abated by Monterey promptly
and in good faith.
5. The assessment of civil penalties in this case will not
affect Monterey's ability to continue in business.
CITATION NO. 2319275
6.
On October 20, 1983, a Federal coal mine inspector
issued a citation under section 104(d) (1) of the Act, charging
that the main trolley wire was not supported on well installed
insulators and was in contact with a metal overcast and two
roofbolt plates. A violation of 30 C.F.R. § 75.516 was charged.
7. On October 20, 1983, there were numerous missing and
broken insulated hangers supposed to insulate and support the
main trolley wire in the subject mine. The trolley wire sagged
in some locations because of missing hangers.
8.
The trolley wire referred to above was in contact with
a metal overcast at the No. 1 West entry of the Main North track.
It was also in contact with roof bolt plates at about the
109 crosscut. This caused arcing when the trolley pole passed
these areas.

922

9. The hazard created by the conditions described in
Findings No. 7 and 8 is that the arcing could cause a fire in
contacting combustible materials or could cause an explosion
in the presence of methane or float coal dust in suspension.
10. There was no evidence of methane or float coal dust
in the area cited at the time the citation was issued.
11. The condition of the trolley wire described in Findings
No. 7 and 8 had existed for some days. Monterey should have .been
aware of it as a result of its preshift examinations and weekly
hazard examinations.
ORDER NO. 2319279
12. On October 26, 1983, Inspector Webb issued a withdrawal
order under section 104(d) (1) of the Act for an alleged violation
of 30 C.F.R. § 75.900-1. The condition cited was a hazardous
roof condition in the Number 66.crosscut off the 4 East track
entry which contained the transformer-rectifier including a circuit breaker, making operation, inspection, examination and
testing of this equipment unsafe.
13. On December 22, 1983, the order referred to above was
amended to show that it also charged a violation of 30 C.F.R.
§ 75.200.
14. On October 26, 1983, the roof in the Number 66 crosscut
off the 4 East track entry appeared to be sagging. There were
cracks in the roof and rashing on both ribs. One roof bolt was
missing.
15. The Number 66 crosscut contained the transformerrectifier equipment designed to convert alternating current into
direct current. This equipment included circuit breakers.
16. The roof in question coftsisted of limestone 7 to 8 feet
thick. There were two slip fractures in the roof between the
limestone roof and the shale. Geologic tests performed subsequent to the order showed no instability in the roof itself.
17. To abate the order, rock was scaled from the roof and
from the ribs. Sixteen posts and.six crossbars were installed
to support the area.
18. The condition described in Finding No. 14 posed the
hazard of a roof or rib fall to any miner entering the crosscut.

923

19. The condition described in Finding No. 14 was obvious,
had existed for some time and should have been known to Monterey.
STATUTORY PROVISION
Section 104(d) (1) of the Act provides:
If, upon any inspection of a coal or other mine,
an authoriz·ed 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 if of such
nature as could significantly and substantially
contribute to the cause and effect of a coal or other
mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of
such operator to comply with such mandatory health or
safety standards, he shall include such finding in any
citation given to the operator under this Act.
If,
during the same inspection or any subsequent inspection of such mine within 90 days after the issuance
of such citation, an authorized representative of the
Secretary finds another violation of any mandatory
health or safety standard and finds such violation be
also caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an order
requiring the operator to cause all persons in the
area affected by such violation, except those persons
referred to in subsection (c) to be withdrawn from,
and to be prohibited from entering, such area until
an authorized representative of the Secretary determines that :·such violation has been abated.
REGULATORY PROVISIONS
30 C.F.R. § 75.516 provides:• "All power wires (except
trailing cables on mobile equipment, specially designed cables
conducting high-voltage power to underground rectifying equipment or transformers, or bare or ins~lated ground and return
wires) shall be supported on well-insulated insulators and
shall not contact combustible material, roof, or ribs."
30 C.F.R. § 75.900-1 provides:
"Circuit breakers used to
protect low-and medium-voltage circuits underground snall be
located in areas which are accessible for inspection, examination, and testing, have safe roofs, and are clear of any moving
equipment used in haulageways."

924

30 C.F .• R. § 75.200 provides in part:
Each operator shall undertake to carry out on a
continuing basis a program to improve the roof control
system of each coal mine and the means and measures to
accomplish such system.
The roof and ribs of all
active underground roadways, travelways, and working
places shall be supported or otherwise controlled
adequately to protect persons from falls of the roof
or ribs • • •
ISSUES

1. Whether the violations charged in the citation and
order occurred as alleged?
2.
If so, whether the violations were of a nature as
could significantly and substantially contribute to the cause
and effect of a mine safety or health hazard?
3.
If the violations occurred, whether they were caused
by Monterey's unwarrantable failure to comply with the mandatory
standards?
4.
If the violations occurred, what is the appropriate
penalty for each of them?
CONCLUSIONS OF LAW
1. Monterey is subject to the provisions of the Federal
Mine Safety and Health Act of 1977 in the operation of the
No. 1 Mine, and I have jurisdiction over the parties and the
subject matters of these proceedings.
2.
The conditions described in Findings of Fact No. 7 and
8 constitute a violation of the mandatory safety standard in
30 C.F.R. § 75.516.
DISCUSSION
There is no real dispute concerning the inspector's allegation that the trolley wire was not properly supported on
well-insulated insulators.
The management representative who
accompanied the inspector admitted as much (Tr. 218-19).
I
also conclude that the fact that the trolley wire was in contact with a metal overcast and roof bolt plates constituted a
violation of the standard, since these are part of the "roof."
The fact that the overcast and roof bolt plates are not combustible does not establish that the standard was not violated.
The term "combustible" in the standard does not modify "roof."

925

3. The conditions found in Findings No. 7 and 8 created
the hazard described in Finding No. 9.
The arcing could cause
a mine fire or explosion. This hazard was reasonably likely
to result in an injury of a reasonably serious nature. Therefore, it was of such nature as could significantly and substantially contribute to the cause and effect of a mine safety
hazard.
4. The violation referred to in Conclusion No. 2 resulted
from the unwarrantable failure of Monterey to comply with the
safety standard in question.
DISCUSSION
The conditions cited were obvious to observation and had
clearly existed for a long period of time. Monterey knew or
should have known that the conditions existed and failed to
abate them because of lack of reasonable care. See Zeigler
Coal Company, 7 IBMA 280 (1977).
5. The violation was serious and resulted from Monterey's
negligence. Based on the criteria in section llO(i) of the
Act, I conclude that an appropriate penalty for the violation
is $900.

6.
The condition found in Findings No. 14, 15 and 16
constituted violations of 30 C.F.R. § 75.900-1 and of 30 C.F.R.
§ 75.200.
DISCUSSION
There is little doubt but that the roof conditions in the
crosscut No. 66, in which the transformer-rectifier equipment
was present, were unsafe. The only genuine issue raised by
Monterey was the seriousness of the hazard. There were cracks
in the roof, and a large rock was scaled down in the abatement.
The ribs were rashing and substantial amounts of material were
taken from the ribs.
7.
The violations referred to above in Conclusion No. 6
were serious. The hazard to which they contributed was
reasonably likely to result in an injury of a reasonably serious
nature.
The fact that the roof was solid limestone, and was
unlikely to massively fall does not establish that a fall of
some size would not have occurred. The scaling down of rock
from the roof and removing substantial material from the ribs
in the abatement process is strong evidence that a fall resulting in injury was likely. The violation was of such nature as
could significantly and substantially contribute to the cause
and effect of a mine safety hazard.

926

8. The violations referred to in Conclusion No. 6 above
resulted from the unwarrantable failure of Monterey to comply
with the safety standards in question.
DISCUSSION
Monterey argues that the failure of mine examiners to
record the conditions demonstrates that Monterey had no reason
to know of them. Since the conditions were obvious and longstanding, the failure only demonstrates that Monterey's examination program was seriously deficient.
9. Based on the criteria in section llO(i) of the Act, I
conclude that an appropriate penalty for these two violations
is $2,000, or $1,000 for each violation.
ORDER
Based upon the above Findings of Fact and Conclusions of
Law, IT IS ORDERED
1. Citation No. 2319275 issued on October 20, 1983, is
AFFIRMED and the Notice of Contest is DENIED.
2. Order No. 2319279 issued October 26,
and the Notice of Contest is DENIED.

1~83,

is APFIRMED

3. Order No. 2319279-03 issued December 22, 1983, modifying
Order No. 2319279, is AFFIRMED and the Notice of Contest is
DENIED.
4. Monterey shall within 30 days of the date of this
decision pay the following civil penalties for the violations
of mandatory standards found herein to have occurred.
CITATION/ORDER

30 C.F.R,. STANDARD

2319275
2319279
2319279-3

75.516
75.900-1
75.200

$

Total

J

PENALTY
900
1,000
1,000
$2,900

c~ Af3 ~,cfe/Vte/{__
James A. Broderick
Administrative Law Judge

927

Distribution:
Carla K. Ryhal, Esq., Monterey Coal Company, P.O. Box 2180,
Houston, TX 77001 (Certified Mail)
Deborah A. Persico, Esq., and Robert A. Cohen, Esq., Office of
the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)

/fb

928

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

TODILTO EXPLORATION AND
DEVELOPMENT CORPORATION,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION ( MSHA) ,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION ( MSHA),
Petitioner
v.
TODILTO EXPLORATION AND
DEVELOPMENT CORPORATION,
Respondent

APR 17 1984

CONTEST PROCEEDING

.
.:
.
.
.
.
..
..
.
.:
.
.

Docket No. CENT 79-91-RM
Citation/Order No. 151433;
1/31/79
Haystack Underground

CIVIL PENALTY PROCEEDING
Docket No. CENT 79-310-M
A.C. No. 29-01650-05003
Haystack Underground

DECISION
Appearances:

U. Sidney Cornelius, Esq., Office of the Solicitor,
U. S. Department of Labor, Dallas, Texas,
for Petitioner;
Mr. G. Warnock, President, Todilto Exploration &
Development Corporation, Albuquerque, New Mexico,
Pro Se.

Before:

Judge Vail

STATEMENT OF THE CASE
This is a consolidated civil penalty and contest of citation
proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801 et seg. (1976 & Supp. V 1981). The case
was originally heard by Judge Jon D. Boltz on May 21, 1981. On
July 21, 1981, Judge Boltz issued a decision in which he found
that the respondent had not violated 30 C.F.R. § 57.5-50, the
noise standard applicable to metal-nonmetallic underground
mines. ~/ The issue decided was whether, in order to be

l/

The judge's decision is reported at 3 FMSHRC 1824 (1981).

929

"feasible" within the meaning of § 57.5-50(b) cited in Citation
No. 151433, an engineering control must reduce a miner's exposure
to the permissible levels set forth in subsection (a) of the
standard. The Judge answered this question in the affirmative.
The Secretary filed a petition with the Commission seeking
discretionary review of the Judge's decision. The Secretary's
petition was granted on August 28, 1981.
The Commission issued its decision on November 9, 1983,
wherein they disagreed with Judge Boltz's findings on
"feasibility" and held that an engineering control may be
"feasible" even though it fails to reduce a miner's exposure to
noise to the permissible levels set out in the standard. 2/
This decision was consistent with a prior Commission decision in
Callanan Industries, Inc., 5 FMSHRC 1900 (York 79-99-M, November
9, 1983). In the Todilto decision, the Commission determined
that a question remained as to whether the Secretary had proven a
violation of the standard for failure to implement a feasible
engineering control consistent with their findings in Callanan
Industries, Inc., supra. The case was remanded to me on November
16, 1983, to allow the parties an opportunity to present.
additional evidence and submit further arguments in light of the
considerations set forth by the Commission in Callanan.
On December 1, 1983, I advised the parties that I intended
to set this matter for a rehearing on January 20, 1984, in
Albuquerque, New Mexico. Respondent replied by letter received
on December 12, 1983, stating that they had no additional
evidence to.offer in this case. The Secretary subsequently
indicated that he also had no new evidence to offer and was
willing to submit the matter for decision based on the existing
record. Both parties waived further briefing of the issues.
·
This was subsequently confirmed in a stipulation received on
February 10, 1984. Based on the entire record and considering
the contentions of the parties, I make the following decision.
FINDINGS OF FACT
1. On January 31, 1979, Donald L. Harlen, an authorized
representative of Mine Safety and Health Administration CMSHA),
conducted an inspection of the Haysack Underground Uranium Mine
operated by the respondent.

11 The Commission decision is reported at 5 FMSHRC 1894 (1983).

930

2. Inspector Harlen, using a dosimeter~ conducted a noise
survey on a jackleg percussion rock bolt drill being operated in
the 440 South drift of respondent's mine.
3. As a result of a full shift noise sample, it was
determined that the drill operator was exposed to an average of
114 dBA which was determined to be 2634 percent in excess of that
permitted by standard§ 57.5-50(b).
4. The inspector also measured instantaneous exposures as
high as 118 dBA with a sound level meter.
5. During the time period of this inspection and noise
sample, the jackleg drill operator was wearing both ear plugs and
foam muffs. The drill was not equipped with a muffler of any
kind.
6. As a result of the noise monitoring tests, the inspector
issued Citation No. 151433 citing a violation of § 57.5-50(b) and
alleging the drill operator was exposed to a noise level which
was 2634 percent of the permissible limit for an eight hour
period.
7. Subsequently, MSHA terminated the citation after
respondent installed a muffler on the jackleg drill. The cost of
this type of muffler was $110.00. Sound level meter readings
taken during operation of the.drill with the.muffler installed
measured 110 and 113 dBA which still exceeded the permissible
level under the standard.
ISSUE
The question before me is whether, the Secretary proved
respondent violated § 57.5-SOCb> for failure to implement a
"feasible" engineering control.
REGULATORY PROVISIONS
30 C.F.R. § 57.5-50 provides:
(a) No employee shall be permitted an exposure to
noise in excess of that specified in the table below.
Noise level measurements shall be made using a sound
level meter meeting specifications for type 2 meters
contained in American National Standards Institute
(ANSI) Standard Sl.4-1971, "General Purpose Sound Level
Meters," approved April 27, 1971, which is hereby incorporated by reference and made a party hereof, or by

931

a dosimeter with similar accuracy. This publication
may be obtained from the American National Standards
Institute, Inc., 1430 Broadway, New York, New York 10018,
or may be examined in any Metal and Nonmetallic Mine

PERMISSIBLE NOISE EXPOSURE
Duration per day,
Sound level dBA,
hours of exposure
slow response
8 -------------------------------.90
6 -------------------------------92
4 -------------------------------95
3 -------------------------------97
2 -------------------------------- 100
1 1/2 ---------------------------- 102
1 -------------------------------- 105
1/2 ------------------------------ 110
1/4 or less ---------------------- 115
No exposure shall exceed 115 dBA. Impact or impulsive noise
shall not exceed 140 dB, peak sound pressure level.

*Cb) When employees'
*
*
*
*
exposure exceeds that listed in the above
table, feasible administrative or engineering controls shall be
utilizeQ. If such controls fail to reduce exposure to within
permissible levels, personal protection equipment shall be
provided and used to reduce sound levels to within the levels of
the table.
(Emphasis added.)
DISCUSSION
The Commission, in its decision in the Callanan, case,
interpreted the term "feasible" as contained in§ 56.5-50(b). 3;
They concluded that economic as well as technological factors·must be taken into account in determining whether a noise control
is "feasible" under the standard. Also, they rejected the
argument that a "cost-benefit analysis", as that term is commonly
understood and used, is the appropriate analytical method for
determining whether a noise control is required (5 FMSHRC 1901).
Further, the Commission concluded that the determination of
whether use of an engineering control to reduce a miner's

3/ This standard is identical to the§ 57.5-50)b) being considered in this case as applied to metal-nonmetallic underground
mines.

932

exposure to excessive noise is capable of being done, involves
consideration of both technological and economic achievability.
The three suggested components of a feasible engineering control
to reduce noise levels are: Cl> That it result in a reduction of
the noise level to which a miner is exposed, (2) That it is
technologically achievable, and (3) That it be economically
achievable. The Commission further held that the test of
economic feasibility of the control is to be determined by
consideration of whether the economic costs are wholly out of
proportion to the expected benefits (3 FMSHRC 1907, 1908).
In addition to the above, the Commission suggests the
following in order for the Secretary to establish his case in a
noise level case:
Our next consideration is the appropriate burden
of proof to be applied. We hold that in order
to establish his case' the Secretary must provide:
Cl> sufficient credible evidence of a miner's exposure to noise levels in excess of the limits specified
in the standard; (2) sufficient credible evidence
of a technologically achievable engineering control
that could be applied to the noise source; (3) sufficient credible evidence of the reduction in the noise
level that would be obtained through implementation of
the engineering control; (4) sufficient credible evidence supporting a reasoned estimate of the expected
economic costs of the implementation of the control;
and (5) a reasoned demonstration that,' in view of the
elements 1 and 4 above, the costs of the control are
not wholly out of proportion to the expected benefits.
After the Secretary has established each of the above
elements, the operator in rebuttal may refute any of
the components of the Secretary's case. The burden
borne by the operator is one of production; the burden
of proof remains on the Secretary.
The facts in the present case are not in dispute.
Respondent in its reply brief to petitioner's request for discretionary review states as follows: "With only minor variations,
the Secretary's statement of the technical aspects of this case
are correct." (Respondent's brief at 3).
As to the first requirement necessary to be proven by the
the record establishes that the operator of the
jackleg drill was exposed to an excessive noise level amounting
to a noise dose over an eight hour period which was 2634 percent
in excess of that permitted by the standard. This was based upon
an average of 114 decibels C"dBA"}(Tr. 16-18). This establishes
without any question, an exposure in violation of that provided
in the standard.
S~cretary,

933

The next consideration is whether the Secretary presented
credible evidence as to the availability of a technologically
achievable engineering control capable of reducing the drill
operator's exposure to excessive noise. Although Judge Boltz
made no specific findings in this regard, the facts show that a
muffler for the jackleg drill was available and in fact was
installed in order to abate the citation. The evidence also
shows that after installation of the muffler, the sound level
meter showed noise exposure range between 110 and 113 dBA.
This
reading compared with the prior noise level readings of 114 dBA
and higher reflect a reduction in the noise level even though not
sufficient to bring the level to that required by the standard.
This clearly shows that the muffler was a technologically achievable engineering control capable of reducing the drill
operator's noise exposure.
The third consideration is whether the muffler as a feasible
engineering control is economically achievable. The muffler
installed on the drill in this case is stated by the respondent
to cost $110.00 which is certainly not an unreasonable cost. In
light of the reduction in noise level from 114 dBA to 110 to 113
dBA, I find that the cost at $110 is neither prohibitively
expensive nor wholly out of proportion to the benefit achieved by
its use. The reduction in noise level, even though not large, is
significant over an extended period of time. Also, the standard
distinctly states that when the employees exposure exceeds that
listed in the table, "feasible administrative or engineering
controls shall be utilized" (emphasis added). As I have found
that the muffler meets the requirement of being both technologically achievable and not unreasonable in cost, it was feasible.
The Commission stated in Callanan, supra, that economic
feasibility of a control, such as the muffler in this case, is to
be determined by consideration of whether the economic cost is
wholly out of proportion to the expected benefit (5 FMSHRC 1909).
I find, as stated above, that the cost in this instance of $110
is reasonable for the benefits achieved.
Therefore, based upon the credible evidence in this case,
and the Commission's decision in Callanan, I find that the
Secretary has proven the respondent violated mandatory standard
§ 57.5-50(b) by failing to implement the feasible engineering
control (muffler) which was available to it. The fact that the
muffler did not reduce the noise level to that required by the
standard is not a proper reason for an operator to avoid the
control and go directly to personal protection equipment. The
standard contemplates the use of such personal equipment only
after all other "feasible" engineering controls are installed to
achieve the best results possible.

934

PENALTY
The evidence establishes that the respondent's history of
prior violations is neither substantial oi significant and does
not warrant either raising or reducing the penalty for the
violation at issue here.
The proposed penalty by the Secretary
is appropriate for the size of the operator and would not affect
its ability to continue in busines8.
The operator was negligent
in failing to install the available control Cin this case the
muffler) to reduce the noise level of the operator of the jackleg
drill.
However, the gravity does not appear great, in that
personal protection equipment was being utilized.
The operator
demonstrated good faith by achieving rapid compliance by
installing a muffler on the drill.
I find that the proposed
penalty of $114 is appropriate in this case.
ORDER
Respondent is ORDERED to pay a civil penalty of $114 within
40 days of the date of this decision.

--a·£f~
Vi~ E. Vail
Administrative Law Judge
Distribution:
U. Sidney Cornelius, Esq., Office of the Solicitor
U.S. Department of Labor, 555 Griffin Square, Suite 501, Dallas,
Texas 75202 (Certified Mail)
Mr. G. Warnock, President, Todilto Exploration & Development
Corpor~tion, 3810 Academy Parkway South N.E., Albuquerque
New Mexico 87109
(Certified Mail)
/blc

935

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

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

APR 191984·

CIVIL PENALTY PROCEEDING
:

Docket No. LAKE 84-30
A.C. No. 11-00726-03544

v.
No. 1 Mine
MONTEREY COAL COMPANY,
Respondent
SUMMARY DECISION
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, seeking a "single penalty" assessment
of $20 for an alleged violation of mandatory safety standard
30 CPR 75.1403-5(g), as cited in a section 104(a) citation,
~o. 2201219, issued on November 3, 1983, by MSHA Inspector
George J. Cerutti.
Respondent filed a timely answer to the proposal denying
that a violation occurred, and asserting that the cited
standard does not apply to the facts presented ip this case.
At the same time, the respondent filed a motion to consolidate
this case with six previously consolidated cases involving
these same parties. Those cases involved similar facts and
identical issues as those presented in the instant case.
Petitioner did not object to the motion to consolidate.
However, since the hearings in the prior cases had been
concluded, and the decisions were about to be issued, this
case was not included among those disposed of by my previous
decisions.
In view of the foregoing, I conclude that this case
should be disposed of by the application of the Commission's
summary decision rule 64, 29 CFR 2700.64.

936

Discussion
Citation No. 2201219, describes the following "condition
or practice":
A clear travelway at least 24 inches wide wasn't
provided along the Main North Belt Conveyor on
the east side.
Rock and coal was present at the
following locations 112 to 108 crosscuts, 106 to
103, 101 and 102; 99 to 94, 86 to 85, 82 to 81,
75 to 72, 69 to 59, 57 to 51, 44 to 39, 36 to 28,
24 to 25, 15 to 12.
A notice to provide a safeguard was issued 9-4-75.
1 WHW.
On February 23, 1984, I issued decisions in Monterey
Coal Company v. MSHA and MSHA v. Monterey Coal Company,
Dockets LAKE 83-68-R, etc:-;-Tn which I vacated several citations
under the same factual circumstances which are presented in
the instant case.
In my prior decisions, I co~cluded that the
statutory and regulatory intent of section 30 CFR 75.1403-5(g),
is to address hazardous conditions connected with belt conveyors
which transport men and materials other than coal, and that any
logical interpretation of this section necessarily excludes
coal as a "material" within the scope of the cited regulatory
criteria (decision, pg. 35).
I take note of the fact that MSHA has not sought. review
of my decisions pursuant to Commission Rule 29 CFR 2700.70.
My decisions became final 30 days after their issuance on
February 23, 1984, and since they were not appealed, they are
final and controlling in the instant case.
Conclusion
The facts and issues in this case are identical to those
presented in my previous dispositive decisions.
I incorprate
by reference my previous findings and conclusions concerning
the interpretation and application of mandatory standard
section 75.1403-5(g), including my reasons for vacating the
citations in those cases. Under the circumstances, I conclude
and find that the citation issued in this case must also be
vacated.

9-37

Order
IT IS ORDERED that Citation No. 2201219, November 3,
1983, IS VACATED, and this case is dismised.

~7<.f!ut~
Administrative Law Judge

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department
of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL
60604
(Certified Mail)
Carla K. Ryhal, Esq., P.O. Box 2180, Houston, TX
Mail)

/ejp

938

77001 (Certified

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

APR 191984
WESTMORELAND COAL COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. WEVA 83-266-R
Order No. 2147593; 8/19/83

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

Hampton No. 3 Mine

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 84-76
A.C. No. 46-01283-03532

v.

Hampton No. 3 Mine

WESTMORELAND COAL COMPANY,
Respondent
DECISIONS
Appearances:

Kevin McCormick, Esq., U.S. Department of
Labor, Office of the Solicitor, Arlington,
Virginia, for Petitioner/Respondent;
F. Thomas Rubenstein, Esq., Westmoreland
Coal Company, Big Stone Gap Virginia, for
Contestant/Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern a proposal for
assessment of a civil penalty filed by MSHA against Westmoreland
Coal Company pursuant to section llO(a) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. 820(a), seeking
a civil penalty assessment for an alleged violation of mandatory

939

safety standard 30 CFR 75.301. The alleged violation
was stated in a section 104(d) (2) Order served on Westmoreland
by MSHA Inspector Vaughan Gartin on August 19, 1983.
Westmoreland Coal Company contested the civil penalty
proposal, and also filed a separate Notice of Contest
pursuant to Section 105(d) challenging the legality of the
order. The cases were consolidated for trial in Madison,
West Virginia, and were heard at the conclusion of a
consolidated trial of two other docketed cases concerning
these same parties.
Discussion
Section 104 (d) (2) Order No. 2147593, 1: 50 a.m.,
August 19, 1983, cites a violation of 30 CFR 75.301, and
the condition or practice is described as follows:
The required minimum amount of air
9,000 CFM, could not be obtained with
an approved anemometer on the return
side of the last open crosscut between the
No.'s 4 and 5 entries of the 019-0
8 Right section in that when measured
only 5,850 CFM was present. Coal was
being mined in the No. 5 entry. Said
section supervised by Russell Welch.
The inspector found that the violation was "significant
and substantial," and he ordered the withdrawal from the
019-0 8 right section.
The inspector cited a previous order, No. 2140708,
issued on February 18, 1983, as the "initial action,"
underlying the order which he issued on August 19, 1983.

~

Order No. 2147593 was abated at 3:00 p.m., August 19,
1983, and the abatement action states:
23,400 CFM was obtained in said last
open crosscut.
On September 28, 1983, the inspector modified Order
No. 2147593, to delete the "significant and substantial"
finding, and to delete his previous gravity finding of
"Reasonably Likely," to reflect a finding of "unlikely."
The modification notice reflects that these corrections
were the result of a "violation conference held in this
office on this date."

940

Findings and Conclusions
When these proceedings were called for hearing, the
parties advised me that they proposed to dispose of these
cases by mutual consent and agreement of the parties, and
they presented their arguments on the record for my
consideration.
MSHA's counsel asserted that during his interview with
Inspector Gartin in preparation for trial the inspector
informed him that he had made a mistake in the method he
used to determine his allegation that only 5,850 CFM's
of air was present at the time he took an air reading with
an anemometer in the cited crosscut as stated in his citation.
The inspector conceded that had he correctly computed the
amount of air present in the area, the respondent/contestant
would have been in compliance with the requirements of section
75.301.
In short, the inspector conceded that the order
was mistakenly issued, and he produced a copy of a modification
of the order which indicates that he has vacated it.
In view of the foregoing, MSHA's counsel moved to withdraw and dismiss its proposal for assessment of civil penalty
filed in the penalty case. At the same time, Westmoreland's
counsel moved to withdraw its notice of contest.
After due consideration of the oral joint motions filed
by the parties, they were granted from the bench.
ORDER
MSHA's motion to withdraw its proposal for assessment
of civil penalty IS GRANTED, and the case is dismissed.
Westmoreland's motion to withdraw its notice of contest
IS GRANTED, and it is dismissed.
In view of the foregoing, the contested section 104(d) (2)
order, No. 2147593, issued on August 19, 1983, IS VACATED.

#~£
/ f,!fi:
.

~

Kout as
dm1n strative Law Judge

Distribution:
F. Thomas Rubenstein, Esq., Westmoreland Coal Co., P.O.
Drawer A&B, Big Stone Gap, VA 24219 (Certified Mail)
Kevin McCormick, Esq., U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd., Rm. 1237-A, Arlington, VA
22203 (Certified Mail)
/slk

941

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

APR 201984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 83-86
A.C. No. 15-03987-03502

v.

Docket No. KENT 83-66
A.C. No. 15-03987-03501

PEABODY COAL COMPANY,
Respondent

River Queen Strip
DECISIONS

Appearances:

Darryl A. Stewart, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Michael O. McKown, Esq., Peabody Coal Company,
St. Louis, Missouri, for Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These cases concern civil penalty proposals filed by
the petitioner against the respondent pursuant to Section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
820(a), seeking civil penalty assessments for three alleged
violations of certain mandatory safety standards promulgated
pursuant to the Act.
The respondent contested the proposed assessments, and
the cases were heard in Evansville, Indiana~ The parties
waived the filing of written post-hearing arguments, but
their oral·arguments made on the record during the course
of the hearing hav~ been reviewed and considered by me in
the course of these decisions.
Issues
The principal issue presented in these proceedings is
(1) whether respondent has violated the provisions of the
Act and implementing regulations as alleged in the proposals

942

for assessment of civil penalties filed, and, if so, (2) the
appropriate c"ivil penalties that should be assessed against
the respondent for the alleged violations based upon the
criteria set forth in section llO(i) of the Act. Additional
issues raised are identified and disposed of where appropriate
in the course of these decisions.
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 appropri~teness of such penalty to the size of the
business of the operator, (3) whether the operator was negligent,
(4) the effect on the operator's ability to continue in business,
(5) the gravity of the violation, and (6) the demonstrated
good faith of the operator in attempting to achieve rapid
compliance after notification of the violations.
Discussion
The citations at issue in these proceedings are as follows:
Docket No. KENT 83-66
Following an investigation of a fatal accident which
occurred at the mine, an MSHA inspector issued Section 104(a)
Citation No. 1035414, on March 29, 1983, for ·an alleged
violation of mandatory safety standard 30 CFR 77.404(a).
The
condition or practice described by the inspector on the face
of the citation states as follows:
The TD 25 International dozer was not maintained
in a safe operative condition in that the mechanism
for~stopping the engine from inside the cab was
inoperative.
Docket No. KENT 83.-86
Following an investigation of a second fatal accident
which occurred at the mine, an MSHA inspector issued Section 104(a)
Citation Nos. 2075266 and 2075267, on September 9, 1983.
Citation No. 2075266 alleges a violation of mandatory safety
standard 77.1000, and the condition or practice is as follows:
The operator was not following the Ground Control
Plan in that: hazardous high wall conditions had
not been corrected before men were allowed to work
in the area Pit No. 001-0. This citation was
issued during a fatal accident investigation. This
is the responsibility of Ben Rheu day shift,

943

Gary Hulsey evening shift, Carol ~cintosh,
morning shift pit foreman.
Citation No. 2075267 describes an alleged violation of
mandatory safety standard 77.1005, and the condition or practice
is as follows:
Loose hazardous material had not been removed
from the face of the highwall in pit no. 001-1
for a distance of approximately 150 feet.
This
citation was issued during a fatal accident
investigation.
This is the responsibility of
Ben Rheu (day shift) Gary Hulsey (evening shift) ,
Carol Mcintosh, morning shift pit foreman.
KENT 83-86 - Petitioner's testimony and evidence
MSHA Inspector George W. Siria, confirmed that he
conducted an investigation on September 3, 1982, into the
circumstances surrounding a fatal accident which had occurred
at the mine in question the previous day.
As a result of
that investigation, he issued two citations, and he identified
copies of the citations which he issued, exhibits P-1 and P-2
(Tr. 10-11). He identified copies of the respondent's
surface mine ground control plan, exhibit P-3, and he explained
why he issued citations for violations of sections 77.1000
and 77.1005 (Tr. 12-15).
Mr. Siria confirmed that he is not a surface mining
inspector, and while his experience is in underground mines,
he stated that "I do know something about highwalls" (Tr. 16).
Upon inspection of the 150 foot highwall in question, he
stated that "it looked bad," and while conceding that he never
worked as a surface mine inspector, he confirmed that MSHA
Inspector Herald Utley and Subdistrict Manager Hudson Sorrel
were with him when he conducted his investigation (Tr. 17).
Mr. Siria reviewed his Citation No. 2075266, for a
violation of section 77.1000, and when asked why he did not
make any negligence findings on the face of the citation which
he issued, he replied "I don't really know why," and that
"it looks like I made a mistake here" (Tr. 18). He stated
that he intended t6 mark "high negligence." He confirmed
that the respondent abated the citation in a timely manner
(Tr. 2 0) •
On cross-examination, Mr. Siria testified as to his
background and training, and he confirmed that in the prior
two-year period he had not inspected any surface mines, but only
conducted one prior fatality involving a surface mine highwall
(Tr. 24) .

944

Mr. Siria described the mine highwall in question as
being 70 to 80 feet high, and he described the methods used
to strip the overburden. He stated that the length of the
highwall was some 1000 to 1500 feet, but he had no idea
how long it had been in place, nor could he recall the
prevailing weather conditions prior to the accident (Tr. 26).
He indicated that his main objective in conducting an
inspection of the highwall would be to look for loose,
overhanging rock, and to determine whether it had been
removed (Tr. 27"). He conceded that a rockfall could occur
without any prior danger signs being noticed (Tr. 28),
and he conceded that prior to the accident in question he
had never previously inspected the highwall in question
(Tr. 28). He also conceded that a rockfall could change
the condition of a highwall, but that he did observe loose,
hazardous materials on the highwall in question after the
accident (Tr. 29).
Mr. Siria stated that with the exception of the cited
150 foot highwall area, the remaining portion of the highwall
looked properly scaled, and when asked "Can you see any
reason why that 150 area would not be properly scaled?,"
he replied "no" (Tr. 29). Mr. Siria confirmed that the basis
for his opinion that the highwall was dangerous was that
someone was killed by a rock which rolled down and struck
the victim (Tr. 32). However, he indicated that he would
have issued the citation even if the accident had not occurred,
and this was because of his observation of the condition of
the highwall. After the accident, he believed the highwall
looked safer because the stripping shovel had "brushed the
highwall out and knocked the loose rocks away" (Tr. 33).
He confirmed that he had not observed the conditions of the
highwall prior to the accident, and that he only observed it
after the accident occurred. He conceded that a rockfall
can change the appearance of a highwall, but that any such
changes would only occur in the immediate fall area and not
along the entire 150 length of the 80 foot highwall in question
(Tr. 35). Mr. Siria also stated that the condition of the
highwall was such that he would have issued a violation even
if there were no fatality (Tr. 35).
In response to further questions, Mr. Siria stated that
he had no knowledge that miners Mike Montgomery or Robert Penrod
were told to work in the accident area knowing that the
·
hazardous highwall condition existed. Mr. siria confirmed
that his belief that a hazardous highwall condition existed
prior to the accident was based solely on his observations
after the accident occurred (Tr. 36). Mr. Siria described
the rock which struck the victim as four foot wide, and he
stated that the rock "was rolling as it struck the victim"
(Tr. 39).

945

MSHA Inspector James Utley, testified that he is a
superviso:rysurface mining inspector. He confirmed that he· was
summoned to the mine approximately 15 to 20 minutes after
the accident in question, and that he was at the mine on
September 2 and 3, 1982. When he arrived at the pit area on
September 2, he went to the accident scene and he observed
the rock which struck the victim. The victim was still there,
and the accident scene had not changed from the time he was
called until his arrival. He identified the citation issued
by Inspector Siria (Tr. 56).
Mr. Utley described the highwall as he observed it when
he arrived at the scene on September 2nd as follows (Tr. 57-59):
A.
The highwall at the time we looked
at it had an area near the top where a
rock had turned loose and fallen into the
pit.
It was a little bit rough for an
area of, oh, 150 feet long in the area
where the accident had occurred.
Above the highwall there was an area
approximately 150 feet long where the
dirt or soil had not been drug off by
the bucket of the stripping shovel the
way that it usually had been done.

Q. If I understand you correctly, are
you stating that the face had not been
cleaned for 150 feet?
A.
I wouldn't say that it had not been
cleaned.
It was just a little rough.

Q. Okay, and that on top of the highwall
it hadn't been
A. The top of the highwall had not been
drug off, to use the term that we use,
with the bucket of the stripping shovel.

*

*

*

*

Q. Where you able to determine whether
the fatal accident in this case, the rock
falling, caused the rough condition of the
highwall that you observed?
A. No, the rock falling didn't cause the
condition.

946

Q.

And prior to your making that statement --

A. Well, the rock that turned loose and came
down, came down the highwall in the area where
the fatality occurred, but the area of the
highwall that was a little rough was approximately
150 feet long.

Q. Okay. Did it encompass the area where the
rock had fallen?
A.

Yes.

Q. Did this rock fall midway that area or to
one side or the other or do you remember?
A.
I believe it was nearer the west end of
the area.

Q. And was that an area further removed from
the mining operations going--was the mining
operations moving from west to east or east to
west?
A. At that time the shovel was stripping
from west to east.
Mr. Utley stated that if the condition of the highwall
as he observed it after the accident had looked that way
prior to the accident, he believed it would have been a
violation as stated by Inspector Siria in the citation.
Mr. Utley confirmed that he was familiar with the respondent's
ground control plan, and he confirmed that no mine inspection
took place prior to the accident on September 2, and his
inspection and on September 3, included only the accident scene
(Tr. 61).
On cross-examination, Mr. Utley stated that his prior
surface mining experience was in connection with "engineering
work" with a stripping contractor or as an "engineering
technician" in underground mines. He confirmed that he has
never served as a pit boss, operated a stripping shovel,
or worked in a surface mine (Tr. 62-63). He also confirmed
that Mr. Siria does not work for him in his normal inspection
duties (Tr. 63). He went on the describe several conditions
which change the appearance or condition of a highwall
(Tr. 64-68) .
Mr. Utley confirmed that he personally questioned no
one about the highwall conditions during the fatality investigation,
and that Mr. Siria did most of the interviewing. Mr. Utley

947

also confirmed that he had no personal knowledge of the
condition of the highwall prior to the accident, and that
he did not know whether or not loose, hazardous materials
were in fact present on the highwall for a distance of 150
feet prior to the accident (Tr. 69). He did state that he
inspected company records pertaining to the condition of the
highwall for the dates prior to the accident, but had no
copy of those records, could recall no particular notations
for the pit in question, and could recall no statements
to the effect that the highwall was a "rough area" (Tr. 69-70).
He also could not recall being contacted by any MSHA
assessment officer concerning the condition of the highwall
after the citation was issued (Tr. 71). He then explained
that he did recall such a contact, and he also recalled that'
with the exception of the 150 area, the highwall was in
generally good condition (Tr. 72).
In response to further questions, Mr. Utley believed
that assuming no accident occurred, the highwall was in such
a state that required it to be scaled. He was also of the
opinion that mine management should have known that it should
have been scaled (Tr. 73). He further explained his position
as follows (Tr. 74-82):
JUDGE KOUTRAS: Now when they take that
bucket and scrap the highwall, am I to
assume the purpose of that is to take
down any loose, unconsolidated material?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: Now let's assume that a
mine operator takes the bucket, and let's
assume that in this case the bucket had
acraped the entire 150 feet across this
highwall, scraped it, and then the rock
fell.
Would they then be susceptible to
the charge that they hadn't properly scaled
the highwall?
THE WITNESS:

No, sir.

JUDGE KOUTRAS:
In other words the scraping
with the bucket, is that an acceptable
means of scaling down and taking down loose,
unconsolidated material?
THE WITNESS:
walls.

It is at the top of the high-

JUDGE KOUTRAS:
So you just assume that that
bucket is going to make the swipe and take
everything?

948

THE WITNESS: No, sir, the bucket is also
used to run up the face of the highwall to
remove loosened dirt.
JUDGE KOUTRAS: Was there any indication
in this case that there was any overhanging
material?
THE WITNESS:

No, sir.

JUDGE KOUTRAS: Okay. Now let's assume that
the bucket had done the required cleaning of
the area that you described as rough; am I
to assume that that scraping process also
would have taken out the rock that subsequently
fell?
THE WITNESS:
guarantee.

It is a possibility but no

JUDGE KOUTRAS: I assume the bucket just scrapes
rather than digs.
THE WITNESS:

Yes, when it is scaling a highwall.

JUDGE KOUTRAS: Am I also to assume then when
we use the term "unconsolidated loose" we
literally mean that.
I mean it doesn't literally
go in and dig out big rocks, does it, that are
imbedded into
THE WITNESS: No, sir. Usually the material has
been shot and is small, loose, and unconsolidated
with no large boulders in it.

*

*

*

*

MR. STEWART: I guess if the crack appeared suddenly,
I would agree that management can't know about
the crack appearing suddenly.
JUDGE KOUTRAS:

Okay.

MR. STEWART: But management certainly can know
from working in the area what conditions may lead
to the cause of these sudden cracks that they
later claim that they had no way of knowing.
JUDGE KOUTRAS: And you say the rough condition
of the highwall as it existed shortly after the
incident led the inspectors to believe that they
hadn't scaled it properly.

949

MR. STEWART:

That is correct.

JUDGE KOUTRAS: And that had they scaled it
properly the crack wouldn't have appeared,
the rock wouldn't have fallen, and the man
wouldn't have been killed.
MR. STEWART:

That is our basis.

JUDGE KOUTRAS:

That is right.

MR. STEWART: But we are not necessarily saying
that had they scaled it properly the crack
would not have appeared, in fact.
JUDGE KOUTRAS: That is right. So had they
scaled it properly there wouldn't have been a
citation, correct?
MR. STEWART:

That is correct.

JUDGE KOUTRAS: Okay. Had they scaled it
properly in the eyes of these two inspectors, in
the eyes of MSHA, then the crack suddenly appeared,
and the rock fell, and the man gotten killed,
then they wouldn't have been cited?
MR. STEWART:
testimony.

That is my understanding of their

JUDGE KOUTRAS: Okay. If you look at this
narrative finding, it says, "The crack in the
highwall appeared suddenly after the examination
had been made" -I don't know what examination they are talking
about -- "therefore management was not aware of
it, and allowed the man to work in the area."
Now that is totally nonsensical. And not only
that it is nonsense because I don't understand
it -HR. MCKOWN:

Well, Your Honor --

JUDGE KOUTRAS: I understand it. That is not
evidence, I am just reading from the narrative
finding of the special assessment officer number
code name 21, whoever he is.
If you ever find
out, tell him what I said about his assessment.

950

MR. STEWART:

I certainly will, Your Honor.

JUDGE KOUTRAS: The other thing. that he concluded is that if the operator had not allowed
men to work in the area prior to correcting
hazardous highwall conditions the accident may
not have occurred.
So here in the citation is that hazardous
highwall conditions had not been corrected,
meaning the rough area which you claim, MSHA
claims, should have been scaled and taken down
and taken care of.
Robert w. Penrod, testified that he has been employed
at the mine in question as a "shooter," and that his duties
entail loading and blasting, but that he is now a welder.
He confirmed that on September 2, 1982, he was working as
a shooter at the base of the highwall pit in question. He
stated that the victim was a good friend of his, and Mr. Penrod
described the condition of the highwall as follows (Tr. 88-95):

Q. Mr. Penrod, did you have an occasion
to look at the highwall prior to the death
of your fellow employee?
A.

Yes, sir, I did.

Q.

In the area in which you were working in?

A.

Yes, sir.

Q. Would you describe to the court what it
looked like.
A. At the time when we noticed the highwall
we -- just a little before the accident, we had
noticed a big crack in the wall, and we was
watching it because you could tell that there
was a little bulge there, but it was cracked.
And at the time we didn't see it working
and what I mean working is that when you see a
part of the highwall starting to work it usually
has dust; it usually looks like a little stream
of dust flowing from it, and we know then that
the wall is working; and we kind of avoid the
area. And at the particular area that we had
been in, the highwall hadn't been scraped or
scaled, what we call, you know, kind of clean
and loose material; it hadn't been.
It was
ahead of us, but at the area that we was at
at that time it was not.

951

Q.

How do you know it hadn't been?

A. Well, from being in the pit many times
or around the mines as much as we have, you
can tell from looking at it. In some
instances you can tell when they've scraped
the highwalls, the teeth marks, and at the
top, especially on a highwall like this,
is rounded off like, you know where
they drag the bucket back over the highwall
to break loose all the loose material. You
could tell by looking at the highwall.

Q. So how were you able to tell that this
one hadn't been scaled at the location that
you worked in?
A.
In the location we had, it was obvious
you could tell because of the highwall we was
at there was loose material; and plus right down
from it you could tell where it was, where they
had been dragging the highwall and cleaning it.
But at the area we was at, they hadn't done it.

Q. .Okay.
area?

Were you instructed to work in that

A.

Yes, sir, at the time.

Yes, sir.

Q.

Who instructed you to work there?

A. Well, our drill foreman at the time was
Bob Barrett.

Q.

Bob Berry?

A.

Bob Barrett.

*

*

*

*

Q. Now you stated that you observed a crack
in the highwall but didn't see it working.
A.

No, sir, I didn't see it working.

Q. What--did you observe any other changes
in the highwall?
A.

No, sir, not at that. time I didn't.

Q.

At any time?

952

A. Well, right before the -- I mean, if
you are talking about right before I seen
the rock hit him, you know, I had turned
around and looked; and it all broke loose and
came down.

Q. And you saw the rock actually strike the
victim?
A.

Yes, sir.

Q. When you saw it coming down, what did you
do, if anything?
A. Well, I had just talked to Mike; and
he walked away from the truck; and I had to walk
to the back end
JUDGE KOUTRAS:
THE WITNESS:
killed.
JUDGE KOUTRAS:

Who was Mike?
Mike Dulin, the man that was
Okay.

THE WITNESS: And I turned back and looked, and
I looked up, and I seen this rock falling, and
hollered for Mike to run, and I took one step
towards him -- I don't know why -- but he never
did hear me because of the drills that we work
beside are so loud that he didn't hear me.
And. he looked up, and he seen them coming, and
he turned around and took one step, and the rock
just wiped him out.

Q. And you say the drills were operating at the
time?
A.

Yes, sir, at the time.

Q. Do you know what position Mr. Dulin was
employed in?
A.

He was a shooter, as I was.

Q.

The same?

A.

Yes, the same.

Q. How far away from the base of the pit were
you at the time the rock broke loose?

953

THE WITNESS: Are you saying from the base
of the highwall?
MR. STEWART:

Yes.

A.
(By Mr. Penrod)
I was standing about
twenty five to thirty feet away from
the highwall.

Q.

Out away from it in the pit area?

A.

Yes, in the pit area.

Q. Do you recall -- Withdraw that question.
Do you know that distance the highwall had
not been scraped, in your opinion?
A.

No, sir.

Q.

Do you have an approximate distance it was?

THE WITNESS:

Oh, you mean the length of it?

MR. STEWART:

Yes.

A.

(By Mr. Penrod) Really no.

Q. Was it 10 feet, was it a long way, or a short
way?
A. Well, if you are talking about the area
we w.ere in, it could be 150 to 200 feet, you know.
The area we drilled in, the area we drilled in
that day was all in that area, so I would. say it
would be 150 maybe 200 feet, that area we was in.

Q. And had the highwall been scraped in any of
that area?
A.

Not in the area we was at, no, sir.

Q.
So that is approximately 200 feet that the
highwall had not been scraped.
A.

Yes, sir.

Q. Now within that 200 feet where did this rock
break loose? Did it break loose in the middle
or what?

95-4

A. .Yeah, I could say it was in that area or
maybe like closer to the part where it had
scraping on it. It was close to the middle
of the area that we was in.
I can remember.

Q. So if I understand you, you observed the
highwall before the accident.
A.

Yes, sir.

Q.

And you saw it after the accident.

A.

Yes, sir.

Q. Were there any other changes in the highwall
after the rock broke loose?
THE WITNESS:

You mean --

MR. STEWART:

Throughout the entire length.

A.

(By Mr. Penrod} Not that I know of.

Q. Did rock break loose any place else along
that highwall that you observed?
A.

Not that I can remember, no, sir.

Q. Mr. Penrod, did you report the condition
of that highwall to anyone?
A.

Not at the time, no, sir, I did not.

Q.

And why not?

A. Because from the time we noticed the
crack until the accident there wasn't that
much time in between it, you know.

Q. What about the overall condition of the
highwall in the area you were working in? Why
didn't you report that?
A. Well, it was, I ~ean, I'm not saying I
failed in the reporting it; but it was obvious
everybody could tell by looking at it. You
know, it had never been scraped or anything but

Q. was Peabody Coal Company in a habit of
failing to scrape the highwall?

955

A. Well, they had failed before, yes they
have.

Q. But that is not, is that something they
usually do?
A.

Yeah, they usually scrape the highwall.

Q.

They usually scrape it.

A.

Yes, sir.

Q.

Do they usually clean off the top?

A.

Yes, sir.

Q. Do you know any reason why that hadn't
been done on, September 2?
A.

No, sir, I do not.

Q.

Was the shovel there?

A.

Yes, sir.

Q.

Was it operating?

A.

Yes, sir.

On cross-examination, Mr. Penrod confirmed that he is
a member of the mine safety committee, and has served as
chairman. However, he resigned and was not a member at
the time of the highwall accident. He stated that he was
aware of his right to refuse to work in an unsafe environment.
He confirmed that he knew the accident victim for four years
and considered him to be an experienced miner and safe worker.
Mr. Penrod also considers himself to be a safe worker (Tr. 98).
Mr. Penrod confirmed that he was in the pit on the day
of the accident and that he visually observed it while there.
He stated that he usually "keeps an eye on it" while working
in the pit, and even though it is the pit foreman's job to
inspect the highwall, Mr. Penrod indicated that he personally
watches it (Tr. 99). Mr. Penrod confirmed that he was aware
of his safety rights on the day of the accident, and when asked
why he did not report the highwall conditions to management,
he responded as follows (Tr. 100-101):

Q. Now, when you noticed this area that
you considered not to be properly scaled,
why didn't you report it to management?
A.
Because at the time I didn't pay
that much attention to --

956

JUDGE KOUTRAS: Hold it just a minute.
All right. Go ahead.
THE WITNESS: As I went to the pit, I
noticed the highwall. But as we do a lot
of things, we -- on our daily routine you
go ahead and work; and you just kind of
watch it.
It's just -- a lot of things like anybody
else's job, sometimes it's a daily thing
that happens. You just don't pay much
attention to it.
Mr. Penrod confirmed that the shovel operator scales
the highwall as he "dead-heads" back after exposing the
highwall, and that this is done to take down loose material
on a bad wall. He also indicated that "sometimes after
you strip a wall it will break loose again.
It happens
down there" (Tr. 102). He did not observe the shovel operator
either scale or not scale the highwall in question, and he
relied on what he observed after the accident. He confirmed
that highwall conditions may change and may vary, and that
this is du.e to sandrock and mud which may be encountered
during the stripping operation (Tr. 102).
Mr. Penrod stated that approximately 15 or 20 minutes
before the accident occurred, he "noticed there was a problem
with this crack." He confirmed that he and the accident
victim engaged in some "joking conversation," and he explained
further as follows (Tr. 104-106):
A. No. He -- like I say, he was -- he
was aggravated or something because I
told him about getting the Red Hots.
And we was making light. And he turned
around and walked over to his truck.

Q. So you didn't feel that this was such
a dangerous condition that you needed
to report it to your supervisor?
A.

Not at the time, no.

Q. And you didn't report it to your
supervisor or any concern that you had
about that area that was not properly
scaled?
A.

We hadn't did it, no, sir.

957

Q. How far into the shift was this
accident, did it occur?
A.
I don't know.
It was about 2 o'clock,
I recon.
I'm not sure about that.

Q.

And what time does your shift start?

A.

It starts at 8:00.

Q.

And when does it end?

A.

Four o'clock.

Q.

So it was near the end of your shift?

A.

Pretty close to the end.

Q. Have you ever known Mr. Dulin to work
in an unsafe condition?
A. Times I've been around him, no, he
wouldn't work in no unsafe conditions that I
could think of. No, sir.

Q. How about you?
unsafe conditions?
A.

Have you ever worked in

I've been in them; yes, sir.

Q. Okay. Have you -- did you feel that
you were in unsafe conditions that day?
A.

When?

Q.

Prior to the accident occurring.

A.
I say this is the everyday routine. When
you go into the pit, sometimes you just don't
pay no attention to it -- because not trying
to change some -- but if you have to worry about
it all the time, you can't stay in there. It
would drive you nuts. So you just go ahead and
do it and not worry about it. You just •

Q. But you are aware that you could have refused
to work?
A.

Yes, sir.

958

Q. And you did, in fact, fail to report
to Mr. Barrett
A. Yes. From the time that I spotted the
crack until Dulin was killed, I didn't -the thought of getting the Red Hots and
that part of my job that I was doing, I failed
to report it.
In response to further questions, Mr. Penrod indicated
that after a highwall is scaled or stripped, it can still
break loose, and he could not remember whether the highwall
in question had recently broken loose. He believed that his
supervisor should be able to tell if a highwall had been
scaled or unscaled, but this would depend on how long he
was present in the pit area (Tr. 107).
Mr. Penrod stated that at the beginning of his work
shift on the day of the accident, the highwall looked like
it was not scaled, but he observed no crack. The crack
appeared later at the end of the shift, but he detected
no movement of the rock and said nothing to the accident
victim about the crack. Mr. Penrod did not know whether or
not the victim saw the crack (Tr. 109).
Michael R. Montgomery, confirmed that on September 2, 1982,
he worked at the mine in question as a shooter, and was working
in the pit with the accident victim. Mr. Montgomery indicated
that he had worked as a shooter for about two months prior
to the accident, and during that time worked with the victim
(Tr. 112). Mr. Montgomery confirmed that he observed the
highwall in question during his shift, and he stated as
follows (Tr. 113).

Q. Mr. Montgomery, did you have an occasion
to observe the highwall prior to this fatal
accident?
A. That morning I looked at the highwall
like I normally do.
I checked the highwall
just looking at it. The highwall in that
particular area wasn't scaled really good;
but, you know, there was a lot of the pit -it didn't look any worse than it had been
looking coming up through the pit. I didn't
observe anything hanging loose.

Q. How did the top of the highwall look?
Did you have any occasion to go to the top
of the highwall?

959

A.
I wasn't up on top of the highwall
that particular day. The only observation
that I got was from the bottom. You know,
just looking up I didn't notice anything
that loose that morning.

Q.

Had it been dragged?

A. ~h, I guess it had. But in that particular
section it wasn't
it hadn't been done as
cleanly as it had in some other areas of the
wall.

Q. Now, did you observe the fall of the rock
that struck Mr. Dulin?

A. Yes. I was watching Mr. Dulin -- well, I
was looking over towards that drill.
It was
getting on to 4 o'clock in the afternoon. And
normally we were getting ready to put orf a
shot then, and so we were trying to keep our
patter squared up, -- I don't know whether
you are familiar or not -Q.

No.

A. -- with the terminology. But, anyway, I
wa·s looking over towards the drill. And I
was watching Mr. Dulin. I watched him load
the hole. And I was just seeing where
the other drill helper was. And, yeah, I
saw the rock as it was about two-thirds of the
way down the wall there.
I saw it. And,
of course, I yelled; but I was inside .the drill
with the thing running and everyghint, so
he -- there wasn't any way with all the noise
and everything. But I saw it.
Mr. Montgomery stated that at the time he saw the rock
strike the victim, he was in an enclosed cab some 70 feet
from the highwall and that the victim was approximately
50 feet away from him. The stripping shovel "was on up
the pit a pretty good distance," and he estimated that it
was 400 yards away. He confirmed that he observed no rocks
fall from the highwall during the time prior to the one that
struck the victim (Tr. 116).
On cross-examination, Mr. Montgomery confirmed that he
is a UMWA member and that he considers himself to be. an
experienced surface miner. During the time he worked with

960

the victim, he found him to be an experienced miner and
a safe worker (Tr. 118). He further described the condition
of the highwall as follows (Tr. 118-120):
Q. Now, you stated on direct examination
that the highwall had been dragged but not
as cleanly as. the other sections of the
highwalls. What do you mean by dragged
exactly?
A. Well, as I understand it, they take the
bucket -- I've watched them -- they take the
bucket and go up to the top of the wall.
And they will drag all the loose stuff.
And in that particular area, it wasn't as
cleanly -- I mean, there was stuff up
there, but it wasn't -- I didn't observe it
to be hanging loose. It wasn't -- some
places where they clean it off, you know, it
looks like a dozer has been along there. You
know, they really have done a good job of it
in certain area.
Q. So you were saying that this was dragged
but just not as well as in certain.other
areas?
A.

Right.

Q. And you stated -- did you see any loose
material on the highwall?
A.
I didn't observe any loose material about
to fall.
You know, there was stuff sitting up
there. But from where I was at my vantage
point, you know, -Q. What would have happened if you would
have seen loose material? What would you have
done?
A.

I would have notified my foreman.

Q. Okay.
pit?
A.

Would you have gotten out of the

Would I have gotten out of the pit?

Q. Yes.
area?

Would you have gotten away from that

961

A.
I would have gotten away from the wall,
yes.
I probably wouldn't have gotten out
of the pit. But I would have gotten
what I consider a reasonable distance from
the wall.

Q. BQt you never had any occasion prior to
Mr. Dulin's accident to report a hazardous
condition to mine management?
A.

Ever or --

Q.

No, I mean just that day.

Q.

That day.

No.

Huh-uh.

Mr. Montgomery indicated that mine management usually
took care of previous safety conditions he has reported, and
he stated that he is not afraid to make complaints. He
confirmed that his supervisor was present in the vicinity
of his work area at least a half an hour prior to the
accident, and while he had an opportunity to report any
unsafe condition to his supervisor at that time, Mr. Montgomery
stated "I hadn't observed anything to report" because he was
in the drill {Tr. 121). Mr. Montgomery confirmed that the
respondent has corrected highwall conditions in the past,
that the highwall is scaled by the shovel for safety reasons,
and that highwall conditions do change and he explained those
changes {Tr. 121-122). He confirmed that he had no indications
prior to the fatal rock fall that it was going to fall
{Tr. 122). He also confirmed that the highwall was damp,
that conditions were wet, and that "the highwall had been
dragged to some extent." However, he stated that "I didn't
see anything about to fall" {Tr. 123).
In response to further questions, Mr. Montgomery stated
that since he was in a drilling machine in the middle of
the pit, he would not have observed the highwall as close
as a chooter, and he described what he observed as follows
{Tr. 125-126):

A. Well, that day, you know, when I looked
at that 'that morning -- you can look at a
wall and tell if they've done anything to it
or not, you know.
They had done some work
on it.

Q.

Was that --

962

A.
I'm just saying that it wasn't as clean
as it was in other areas of the highwall.

Q. Because the area that you were working
in, you say, was not as clean as others?

A.

Right.
I think right up in front of us
there was clean area.
I don't remember real
well, but it seems like there was an area that
was really scaled nice right up past that,
you know.

Q. Past that area, towards the direction
you were going?
A.

Yeah.

*

*

A.

*

*

From just what I have observed, normally
once they have removed the overburden as far
over as they are going to remove it, they
usually, as they move the machinery up,
they will scale it as they go, you know.

And at Tr. 127-128:
JUDGE KOUTRAS: Did you at anytime have any
conversation with Mr. Penrod or Mr. Dulin
concerning the condition of the highwall?
THE WITNESS: Not concerning the condition
of the highwall.
JUDGE KOUTRAS: Several times in response to
questions of either Counsel McKown or
Mr. McKown asked you with regard to whether
or not you observed any loose, hazardous
rock, your response was:
Nothing that looked
like it was going to fall.
THE WITNESS:
on that?

I guess you want a clarification

JUDGE KOUTRAS: Yes. And my follow-up question
to that is do you usually wait until the rock
starts falling before you consider it to put
you in peril?
THE WITNESS:
No. No.
The only thing that I
can say is that the wall had not been good for
some time up to there.
By that, I meant that
it didn't look any worse to me that particular
day that it had been looking.

963

JUDGE KOUTRAS:

All right.

THE WITNESS:
I felt that it had not been
scaled as well as it should been. But,
you know, we'd been living with it.
JUDGE KOUTRAS: Based on the condition of
the highwall that you observed that day, what
if Mr. Barrett had said to you, Mike, -- if
I can take the liberty of calling you Mike -Mike, instead of putting you on the drill today,
we're going to make you a loader and a shooter.
Would you have insisted that the highwall be
scraped better than it was, or would you have
any fears of going and working and doing the
job of loading and shooting?
THE WITNESS: If I had been Mr. Dulin, it would
be me instead of him because I would have
done the job. I didn't observe anything -- I'll
put it this way: Once I sat on that drill, I
didn't look at the top of that wall during the
day because of where I was at.
I didn't have
any need to. Maybe I should have, to help
watch for my fellow workers; but I was in the
middle of the pit; I was a safe distance from
it; and I didn't feel -- I just didn't observe
the wall. If I had been a shooter, I know
that I would have watched that wall closer.
JUDGE KOUTRAS: Well, okay. But the question
was: If it wasn't as clean as it usually is,
would you have insisted that they make it a
little cleaner before you proceeded to work
as a driller or loader?
THE WITNESS:
If I had seen that falling off
a wall, yeah, I would have gotten out of the
area.
KENT 83-86 - Petitioner's testimony and evidence
MSHA Inspector George Siria confirmed that he issued
Citation No. 2075267 on September 3, 1982, exhibits P-5
and P-6, citing a violation of section 77.1005 for failure
by the respondent to remove loose hazardous materials from
the highwall in question. He confirmed that the citation
was issued at or about the same time as the previous one

964

and that it concerned the same highwall condition connected
with the fatal accident. Mr. Siria stated that the highwall
appeared "to be loose" and that "I figured if it was loose
it was hazardous to anybody working underneath it." He
described the highwall as being composed of dirt, topsoil,
and limestone, and he indicated that "it was just loose
material that had not been scaled off" (Tr. 132).
Mr. Siria stated that in his opinion, the top of the
highwall had not been scaled or "cleaned off," and he confirmed
that he found "high negligence" because "it was very obvious
to me and I thought it should have been to the company
also" (Tr. 133). He stated that the 150 foot area which he
cited did not appear to be scaled at the top or face of the
highwall, and that he saw loose rocks. He also stated that
"If I had been working in the pit, I would have been afraid
of it" (Tr. 135).
On cross-examination, Mr. Siria conceded that he has
never observed the stripping shovel at the pit in question,
and he confirmed that he never observed the shovel scale
or not scale the highwall in question, and that he relied·
on what he observed from the top and bottom of the highwall
after the accident. He indicated that his opinion that
the highwall had not been scaled was based on his observations
of loose rock and adjacent area which had not been scaled
(Tr. 136). Based on his experience, he believed the highwall
to be "obviously dangerous" (Tr. 137). He stated further
that he observed overhangs and cracks in the 150 foot highwall
area in question, and did not believe that the highwall was
ever scaled and that he simply did not notice it (Tr. 138).
He confirmed that during abatement "they really did a good
job" of scaling (Tr. 140).
MSHA Inspector James H. Utley confirmed the citation
issued by Inspector Siria, and he also confirmed that on
September 3, 1982, he walked the top of the highwall in the
area where the fatal rock fall accident occurred. He described
an area approximately 150 feet long "where the loose material
on top of the highwall had been partially dragged off."
He stated that the stripping shovel had dragged some of the
loose material off, but that in the im.~ediate face area
where the rock fell it was "a little rough" (Tr. 150). When
asked to explain further, he stated that the material he
observed at the top of the highwall "was there in its normal
state.
It was there when the Earth was formed, I guess; and
it had not been removed" (Tr. 151). He then stated that no
one from the company explained tc him why that area looked
different from other areas which had been dragged or scaled,
but that he recalled no conversations with any company officials
about the citation which was issued (Tr. 151).

965

On cross-examination, Mr. Utley stated that part of
the 150 foot highwall was scaled and part was dragged, and
he was of the opinion that there was a difference in these
two procedures. He was of the opinion that "maybe somebody
got a little behind or in a hurry, and they failed to drag
the top of the highwall the way they had been doing it in
the past," but he conceded that he did not interview any
of the stripping shovel operators (Tr. 153).
In response to
further questions, Mr. Utley stated as follows (Tr. 155-156):

Q.

How do you define overhang?

A.

How do I define overhang?

Q.

Yes.

A. An overhang would be an area of the
highwall that protrudes out past the
average face of it. And it would have
an area beneath it so that it could turn
loose and fall.

Q. Did you see overhangs on this 150-foot
area?
A.
Yes.
There were some areas that could
be defined as overhangs.

Q. And how do you identify material as
being loose and unconsolidated? What do you
rely on to come up with that conclusion?
A.
Well, loose and unconsolidated material
to me would be material that had been drilled
and shot that was ready to be stripped by the
strip shovel. Also there can be geologic
deposits that are loose and unconsolidated in
their normal state.

Q. And, of course, you didn't see the shovel
make a pass through that area of the highwall?
A.

No, sir.

Q. And, of course, you didn't see the condition
of the highwall prior to the accident occurring?
A.

No, sir, I didn't.

966

Respondent's testimony and evidence - KENT 83-86 and KENT 83-66
Kerry Teague testified that he was a drill foreman on
the day of the accident in question, and that he observed
the highwall and was looking for loose material. He stated
that on September 3, 1982, when he observed the highwall,
he found it to be in good condition and properly scaled. He
confirmed that when he observed it on September 2, 1982, he
saw no loose rocks or other material (Tr. 168). He confirmed
that he has known the accident victim for "all of his life,"
and he considered him to be an experienced and safe worker,
and did not believe that he would work in an unsafe environment (Tr. 169).
On cross-examination, Mr. Teague confirmed that the
entire pit in question was under his supervision, and he
stated that he traversed the pit area by truck and by walking.
He confirmed that his shift starts at midnight and that it
is dark, and that any lighting present would be generated
by the lights on the particular pieces of equipment operating
in the pit area. He explained the movement of the stripping
shovel on the day of the accident, and he stated that 50 or
60 feet of overburden was stripped that day. He also indicated
that at the time of the accident, the shovel had moved
approximately 36 to 45 feet along the highwall. He also
confirmed that he did not remain in the area after 8:00 a.m.
on the day of the accident (Tr. 175). He confirmed that
he next went to work at 12 midnight after the time of the
accident, and that the area was still cornered off, and
that he performed no work at the location of the accident
(Tr. 176) •
In response to further questions, Mr. Teague stated
that the area where the,accident occurred had been stripped
for two days prior to the time of the accident (Tr. 179).
He confirmed that when loose materials are encountered
it is "stripped down," and that this is done "if it is
hazardous," and that "we do take care of it" (Tr. 180).
When asked to explain when such loose material "is not
hazardous," he stated "I can't" (Tr. 181). He confirmed
that he was not present when the accident occurred, and that
his observations of the conditions of the highwall were based
on what he saw on the previous shift and on the shift after
the accident (Tr. 181).
Robert Barrett, testified that on September 2, 1982,
he was the drill foreman at the pit in question, and he
explained his duties (Tr. 184). He confirmed that he had
six people working for him that day, including the accident
victim, and he considered him to be a safe and good worker

96'7

(Tr. 186) . . He stated that blasting and weather conditions
can change the condition of a highwall, and he confirmed
that the presence of a crack would indicate that a rock may
fall, and he confirmed that he has observed a rockfall
occurring without any warning (Tr. 187).
Mr. Barrett confirmed that he inspected the highwall
on September 2, 1983, and observed no unsafe conditions or
loose, unconsolidated materials. He also confirmed that he
observed no conditions which in his opinion would cause him
or anyone else to fear for their safety. He believed the
highwall was adequately scaled and stripped, and he explained
the procedures for doing this (Tr. 188-189). He confirmed
that no one raised any safety concerns about the highwall
conditions on the day of the accident, and he did not feel
that he was in any danger working in the highwall area on
the day of the accident (Tr. 193).
On cross-examination, Mr. Barrett stated that the pit
foreman makes entries in the preshift examination books,
and that he too has made such entries. He confirmed that
he made no entries, but that the pit foreman did and that
he examined the book (Tr. 195). He explained the mining cycle
and how the coal is stripped with the shovel (Tr. 196-202).
In response to further bench questions, Mr. Barrett
stated as follows (Tr. 209-210):
JUDGE KOUTRAS: Several witnesses have
testified in this case, and you haven't
heard their testimonies, but they described
the highwall on September 2nd as being
"rough," "not like I would like it to be,"
"not like it usually is," "not like part of
it was," all kinds of descriptions were
given. But there seems to be a vast difference
of opinion as to whether or not there was
loose, hazardous materials on the highwall.
And I have some difficulty sometimes comprehending where everybody is testifying
in this case, whether it be a mine management
pit foreman or some guy who is rank and file
down there doing the job, doing the actual
working at the foot of the highwall. And I
detect that everybody is not all on the same
wavelength as to what loose, hazardous
material is all about. And I hear testimony,
for example, that:
"We' re all aware of it 11 ;
and "When I see the first rock coming down,

968

I. turn tail and run"; and you've
indicated that you inspected -- you said
something about driving by in your truck.
Now, I don't know whether that means you
drive by and inspect it or you actually
get up on top.
But the point I'm trying
to make is: Do people just accept the
highwalls and try to have everybody fend
for himself?
It's a team operation.
THE WITNESS: No.
Anytime anybody
and this is encouraged
-- a man facing an unsafe condition should
report it.
JUDGE KOUTRAS: Well, what I can't understand is how do you account for the fact
that two federal inspectors went out there to
the top of the highwall, and they described
loose, hazardous materials to me. And you
went out there and looked at the same
highwall, and you didn't see any loose,
hazardous materials. How do you account for
the people looking at the same highwall at about
the same time and coming to different conclusions
as to what they observed?
THE WITNESS:
I can't answer that. The only
thing that I can answer is my personal feeling
towards it. It was a safe wall.
Edward Carlisle, mine superintendent, testified as to
his background and experience, and he described how the
highwall is created and mined, how the conditions could
change, and what steps are taken to identify dangerous
conditions (Tr. 213-220). He confirmed that he was acquainted
with the accident victim and that he considered him to be
an experienced and safe worker (Tr. 220).
Mr. Carlisle confirmed that he was in the pit in question
on the morning of the accident, and that he arrived there
shortly before 7:00 a.m. and drove through the area. He
stated that he saw nothing that morning which caused him
any alarm for the safety of the miners working in the pit
(Tr. 221). He considered the scaling and stripping of the
highwall that morning to be "satisfactory" (Tr. 221), and
that "we had done the best that we could with what we had
to do" (Tr. 222). He also believed that the area where the
accident occurred was scaled adequately (Tr. 222), and he
described how the highwall scaling is done (Tr. 223-225).

969

Mr. Carlisle confirmed that no MSHA or state inspectors
were in the pit area on the morning of the accident and that
he observed no conditions that would lead him to believe
that there was a violation of the ground control plan. Further,
he indicated that no one reported any unsafe highwall
conditions to mine management prior to the accident (Tr. 227),
and he stated that apart from the accident in question, there
have been no prior highwall fatalities at the mine in question
(Tr. 228) •
On cross-examination, Mr. Carlisle confirmed that the
pit foreman had noted some problems with the highwall conditions
in the area where a truck was located at another area (Tr. 235),
and he testified as to his inspection duties, including the
area where he would inspect the highwall conditions (Tr. 241-243).
In response to further questions, he stated as follows
(Tr. 244-246):
JUDGE KOUTRAS:
I've heard some testimony about
the highwall location where this M 191 truck
was working, and apparently someone had made
some notation in the company -- either preshift
or on-shift inspection report -- that on that
very day the highwall condition by the M 191
was hazardous and that employees were told to
stay away from it. Okay?
THE WITNESS: Yeah, it might have been on that
day.
I don't know.
JUDGE KOUTRAS: Well, let's assume that there
was a similar notation at the precise location
Mr. Dulin was working in on September the 2nd.
What would you then say about the condition
of the highwall?
THE WITNESS: Well, we would have got the
people away from it.
JUDGE KOUTRAS: Well, what leads an examiner
to come to a conclusion that the highwall in
one location is hazardous and that it should
be dangered off; but yet in another one it is
not loose or is in good shape, or what? What
THE WITNESS:
If it is solid and you can't see
any cracks or movement in it, then you can just
on your own judgment look- and see if it is going
to fall or not.
That's about the only way.

970

JUDGE KOUTRAS: Okay. Now, I'm going to
ask you the same question that I asked one
of the other witnesses. You inspected the
highwall that very same morning?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: And about 20 minutes after
the accident one federal inspector appeared
on the scene, and he looked at it, and he
inspected it, and he climbed to the top or at
least within the next day or so, and assuming
no conditions changed, their testimony is
that there was loose, hazardous, unconsolidated
material that hadn't been taken down.
Now, how can your counsel explain that you, as
the superintendents saw the same condition and
said that it was in good shape, it was scaled
down, and there wasn't any problem? Yet the
two inspectors looked at the very same condition
or the same area, and they come to an opposite
conclusion?
THE WITNESS: After the rock fell out, on either
side of it, yes, there was loose material
then because it made it when it came out.
JUDGE KOUTRAS:
THE WITNESS:

For a hundred and fifty feet?
No, sir.

KENT 83-66 - Petitioner's testimony and evidence
MSHA Inspector George Siria confirmed that a fatal
accident occurred at the mine on March 25, 1982, and that
upon investigation of that incident he issued a citation on
March 29, 1982, charging a violation of section 77.404. He
also confirmed that another inspector terminated the citation
after abatement of the cited condition (Tr. 6). Mr. Siria
confirmed that he operated the throttle of the machine in
question, and that when it was "cold" it would shut off,
but when "hot," it would not. He stated that he did this
either the day of the accident, or the next day (Tr. 7).
He also stated that his inquiry did not establish that the
cited condition had actually been reported to mine management
prior to the accident, but that two months earlier the cited
dozer would not shut off, and that "the practice of shutting
off was getting out on the track and shutting it off, putting
it in neutral and shutting it off" (Tr. 8).

971

Mr. Siria stated that his investigation indicated that
the accident victim had previously shut the machine off
by climbing out on the track, and when he first observed
the machine, the gear was between second and third, rather
than the neutral or "lock-out" position. He concluded
that the victim had pushed the lever from outside opening
the throttle, and that instead of shutting the machine off,
the machine went forward throwing the victim off (Tr. 8-9).
On cross-examination, Mr. Siria stated that he has
never operated any surface mine heavy equipment, including
an International TD 25 Dozer, and that he did not examine
the cited machine in question in any detail. He did examine
the throttle and linkage, and while he did sit in the cab,
he did not test the brakes or transmission, nor did he staTt
the machine up (Tr. 9). He did not use the throttle when
the machine was running, and he relied on statements given
to him during his investigation to support his conclusion
that the throttle did not work. He confirmed that he had
no personal knowledge as to whether the throttle worked or
not, nor did he have any idea as to why "hot" and "cold"
made any difference to shift linkage (Tr. 10).
Mr. Siria stated that the dozer transmission lock-out
device was operative, and he stated that he sat in the machine
cab and he described the operating positions of the transmission
shift lever (Tr. 11-12). He stated that not all equipment
defects necessarily render a machine "unsafe" and in violation
of the cited safety standard, and he defined "safe" as "where
it would not be likely to harm someone that was operating
it" (Tr. 13). He believed that the failure or inability to
throttle down the machine was unsafe because this was the
o~ly ~ear.s for shutting it off, but he conceded that the
machine could be stopped from inside the cab by dropping
the blades to turn it off, and that this alternative method
would be safe (Tr. 13).
Mr. Siria conceded that there were no eye witnesses
to the accident and that MSHA did not know how it occurred.
He stated that the accident victim was 62 years old, had
31 years of mining experience, six of which were as a dozer
operator. He did not investigate the victim's health, and
he found it surprising that anyone would fail to lock out
the dozer transmission.
He explained further as follows
(Tr. 16) :

Q. And you feel that that throttle was
the cause of his death?
A.

Yes.

972

Q.

Please explain.

A. The throttle in addition to him not locking
it up. If the throttle had worked and he had
shut the dozer off like it was designed to do,
then he wouldn't have been out on the -- If
that was what he was doing, and we presume this
was what he was doing from the statements of
other people. And other people have shut it
off the same way.

Q. But he also had the alternative of using
the hydraulic, you admit that?
A.

Yes.

In response to further questions, Mr. Siria confirmed
that MSHA's accident investigation indicated that when the
accident was first discovered the machine motor was still
running (Tr. 16). He confirmed that during the accident
investigation it was determined that several other miners
had operated the dozer in question approximately a month or
so before the accident and that they had problems shutting
the engine down from inside the cab of the machine.
Mr. Siria confirmed that MSHA's accide~t investigation
report concludes that "the machine was not kept in a safe
operating condition in that the mechanism for stopping the
engine from inside the cab was inoperative" (Tr. 23).
In
response to further questions concerning this conclusion,
he stated as follows (Tr. 23-27):
JUDGE KOUTRAS: Did anybody ever determine that the mechanism for stopping the
engine from inside the cab was inoperative?
THE WITNESS:

Yes, your Honor.

It --

JUDGE KOUTRAS:
I'm asking you a question.
Did anybody ever determine that the mechanism
for stopping the engine from inside the cab
was inoperative?
THE WITNESS:

Who do you mean by anybody?

JUDGE KOUTRAS: Well, let's say during the
course of these investigations. I take it
that once the machine was found that someone
did something with the machine. Right?
THE WITNESS: The machine was idle and the
citation was abated about a month and a half
later.

973

JUDGE KOUTRAS: No. During the course of
the investigation of the fatality did
someone make a determination that this
machine that the engine could not be stopped
from inside the cab?
THE WITNESS: From the statements. I don't
know. They were there before I got there.
I don't know really if anyone checked it out.
I don't know if another inspector checked
it out or not to see what the problem was
there. Personally, I didn't crank it up
and try to shut it off.

*

*

*

*

JUDGE KOUTRAS: Thank you. Here is a bulldozer
that is found operating with a closed throttle
and it had just run over somebody and is against
the embankment. And based on the investigative
report, two eye witnesses, two persons that
were sumrr~ned to the scene or went to the scene
and found the victim got up there and did something to the machine. They shut the engine
off, or they put it -- I'm talking about during
the course of the investigation of the fatality,
did anybody ever tear the machine apart or
make any determination that the mechanism for
stopping the engine from inside the cab was,
in fact, inoperative as of the time of the
fatality? Did anybody ever make that determination?
THE WITNESS:

Not in my presence.

JUDGE KOUTRAS: Did anybody ever do it?
your presence or out of your presence.
THE WITNESS:

In

No.

JUDGE KOUTRAS: Would that be a logical investigative step to take to find out what's wrong with
the machine. It's for somebody to tear it down
and find out what was wrong with it.
In your
opinion, would that be a logical thing to do?
Or would it be illogical?
THE WITNESS: The logical part of it would be
to fix it so it would shut the machine off like
it should be.

974

JUDGE KOUTRAS: Befor·e you can fix anything
you've got to find out what's wrong with it,
don't you?
THE WITNESS:
JUDGE KOUTRAS:

Mainly what was wrong with it.
Did --

THE WITNESS: When they investigated it the
linkage was out of adjustment and some dirt and
stuff would cause it not to let the lever go
down far enou·:;h, and worn parts in the linkage
would cause it too.
JUDGE KOUTRAS: I note from Exhibit P-1 that
the citation was terminated on May 4th, and
Inspector Sparks says that the TD 25 International
dozer appears to be in safe operating condition.
This is a month or so after the fatality, the
citation is terminated. Do you know what they
did to terminate the -THE WITNESS:
I don't know. But that was my -When this was printed I got back to my regular
duties and I don't go back to this anymore unless
I got assigned to it. I was on another accident.

*

*

*

*

JUDGE KOUTRAS: But no one tore the machine
down during the time that the accident happened
and the time that you issued the citation -THE WITNESS:

No.

JUDGE KOUTRAS:
to specifically find out if
the mechanism did not, in fact, stop it from
inside.
THE WITNESS:

That's true.

During a bench colloquy as to why the throttle mechanism
was not examined, MSHA's counsel stated as follows (Tr. 29-31):
JUDGE KOUTRAS: Well, I don't
how about
the other particular ones. The TD 25 International, all are designed to be cut off from
inside the cab?

975

MR. STEWART:
JUDGE KOUTRAS:
was what?

That's correct.
And the reason this one wasn't

MR. STEWART: Our contention is that the throttle
mechanism did not work properly. That is the
piece of machine that cuts it off from inside
the cab.
JUDGE KOUTRAS: At the time of the investigation
did someone dismantle that throttle and take a
look at it and come to the conclusion that you
just stated?
MR. STEWART:
JUDGE KOUTRAS:

No.

Apparently, Peabody did.

He says, no.

Nobody ever did.

THE WITNESS: No. during the investigation,
no. Not while I was there.
JUDGE KOUTRAS: Has anybody to this day ever
come to the conclusion that that's what caused
this piece of equipment not to be shut off from
inside the cab?
MR. STEWART: I don't.
I'm not aware of any
finding that that was what stopped it.
JUDGE KOUTRAS: Doesn't that seem like a very
logical step in the investigative process?
MR. STEWART: Well, your Honor, I believe that
this situation
JUDGE KOUTRAS: If someone were to say to you
that there was an accident caused by defective
brakes, wouldn't the first step be to pull the
brakes off and see if they're defective?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

This happened.

They did.

They did what?
They --

JUDGE KOUTRAS: They pulled the throttle off
and they found that it was defective?

976

THE WITNESS: Well, they put a new one
on and it worked. Evidently that was all
because the citation was abated by the Service
Inspector about a month and a half later. That
was an extra dozer anyhow they didn't use it
all of the time.
William Jarvis stated that in 1982 he worked as a tractor
operator at the mine in question. He testified that approximately
two months before the accident he operated the TD 25 dozer and
found that one cutting clutch was inoperative and that one
of the brakes was bad. At the conclusion of one of his work
shifts he advised his foreman that he would not operate the
dozer because of these conditions, and that he had to shut
the engine off by manipulating the throttle linkage on the
fuel pump from outside the cab of the machine. At that time,
he placed the machine in neutral gear but it did not lock
it out (Tr. 31-33).
Mr. Jarvis stated that the throttle linkage inside the
cab of the dozer was designed to shut off the engine, but
at the time he used it he had to step out on the machine
crawler in order to press the fuel pump throttle linkage
down further in order to shut the engine down (Tr. 34).
He also stated that he had never experienced this problem
in the past while operating many tractors (Tr. 35).
On cross-examination, Mr. Jarvis confirmed that he had
no knowledge as to whether the bulldozer in question was
in the maintenance shop for repairs after his experience
with it, and he had no knowledge as to whether any repairs
were made on the machine. He again confirmed that he shut
the engine off at the end of his shift by means of the
throttle linkage from outside the cab of the machine.
Mr. Jarvis stated that he could not recall reporting
the throttle linkage problem to his foreman, and he did
not believe that the machine at that time was unsafe for
him since he could have used the hydraulic blade to stop
the engine (Tr. 37). Mr. Jarvis indicated that one had
to back out of the cab of the machine, and he described the
locations of the heater and the lock-out lever (Tr. 38).
He also indicated that it was cool during March, and that
he would usually stay in the cab of the machine to eat
lunch because it was warm and that he would have no reason
to shut down the engine until the end of the shift (Tr. 40).
In response to further questions, Mr. Jarvis testified
as follows (Tr. 43-44):

977

JUDGE KOUTRAS: Mr. Jarvis, let me ask you
this. As a bulldozer operator, do you
consider having to get out of that cab and
fooling with the linkage on the fuel pump
an ideal way of shutting off that machine?
THE WITNESS:

No.

JUDGE KOUTRAS: What is the acceptable way
of shutting off that machine?
THE WITNESS: From inside the cab with a
hand throttle.
JUDGE KOUTRAS: And have you shut off such
machines from inside the cab with hand throttles
in the past?
THE WITNESS:

Yes.

JUDGE KOUTRAS: Ruling out getting out on the
crawler with the -THE WITNESS:

Yes.

JUDGE KOUTRAS: How many times have you stopped
the machine by dropping the front blade and
raising up the engine and choking it out,
assuming that's what it does, doesn't it?
THE WITNESS: Well, if you can get it raised
up enough you can.
JUDGE KOUTRAS: How -- What's the proper -What's the best way? What's the most acceptable
was as a dozer operator to stop that machine
by dropping the blade or doing it from the inside?
THE WITNESS:
throttle.

Shutting it off with the hand

James Jones testified that he has worked for the respondent
at the mine in question for approximately 5 1/2 years and
that for the past 4 years he has operated bulldozers. He
confirmed that in March 1982, he operated the TD 25 International
bulldozer which was cited in this case. He stated that he
operated it during the 4:00 p.m. to midnight shift on March 24,
1982, just prior to the accident, and that the machine was
brought to him by a mechanic and that the engine was running.

918
' 1

His regular bulldozer was down for repairs and the TD 25
in question was a substitute. He operated it for the rest
of the shift with no problem, but at the end of the shift
he could not shut the engine off by means of the throttle
and had to raise the blade, thereby "choking" the engine
out in order to shut it off. This was done from inside the
machine and he considered this a safe procedure as long as
he was in the machine. He confirmed that he had not previously
operated the dozer in question, and that he always used the
hand throttle from inside the cab to shut the engine down
on other bulldozers he had operated (Tr. 44-50).
On cross-examination, Mr. Jones confirmed that he is
a UMWA member, and he stated that he did not report the
fact he could not shut the engine down on the TD 25 dozer
with the bad throttle to mine management, and he confirmed
that the victim had operated the same machine several months
prior to the accident (Tr. 52-54). Mr. Jones confirmed that
when the machine was brought to him it had recently been out
of the shop, and except for the throttle, everything was in
working order. He did not discover the throttle condition
until the end of the shift, and he did not believe that he was
in any danger by not being able to shut the engine down by
means of the throttle (Tr. 55).
Gary Bowles testified that he has been employed by the
respondent for 17 1/2 years, and that for the past five years
he has been a mechanic. He confirmed that he was familiar
with the TD 25 bulldozer in question, and that he has performed
maintenance work on it. He stated that the throttle linkage
from inside the cab of the machine is the primary way to
shut the engine down and in those instances when the engine
would not shut down the throttle linkage was the problem
(Tr • 5 8- 6 0 ) •
Mr. Bowles testified that he was summoned to the scene
of the accident on March 25, 1982, and was at that time
serving as a mine safety committeeman. When he arrived at
the scene of the accident the bulldozer in question had been
trammed back from the embankment where it had come to rest
and the engine was idling. He climbed into the cab of the
machine and tried to shut the engine off with the throttle
but could not do so. He dropped the blade of the machine
to the ground and "killed" the engine. He confirmed that
the throttle linkage on the bulldozer in question was a
common problem (Tr. 60-63).
Mr. Bowles confirmed that a complete new throttle
linkage system was installed on the machine in question

979

after the accident, and that while he did not perform the
work, the day shift mechanic showed him the old linkage
which had been taken off the machine (Tr. 63). When asked
whether he believed the machine with a defective throttle
linkage was a safe piece of equipment, he replied (Tr. 63-64):
A.
It wasn't safe as -- Well, it wasn't
unsafe as far as operating it, but it was
a part of that equipment design to, for
the purpose of shutting it off, it made it
unsafe in the sense of the word that when
to sometimes kill that engine you had to
get out on the tracks to kill it.
Q.

Or lowering the blade.

A.

Or lowering the blade.

On cross-examination, Mr. Bowles stated that he knew
the victim, and while he had no personal knowledge that
he was aware of the throttle linkage problem, he had heard
that the victim had been told about the problem. Mr. Bowles
stated that he had no reason to know why the victim may
have left the machine in gear (Tr. 64-66).
When asked his opinion as to how the accident may have
happened, Mr. Bowles stated (Tr. 67-68):

* * * he was going to get out of his dozer
and eat dinner. And he got out of the -When the engine wouldn't shut off with the
throttle, when he got out of the tractor
he either locked the engine or transmission
in gear or didn't take it out. And when
he pulled on the throttle to throttle the
engine down and kill it he pulled it the
wrong way. And being a nan 62 years old
he couldn't -- he couldn't get out of the
way fast enough and he couldn't jump back
fast enough to get off the dozer.
Respondent's testimony and evidence - KENT 83-66
Donald Holt, respondent's Eastern Division Safety Director,
testified that while he was not present during the actual
accident investigation in this case, he conducted his own
investigation by interviewing personnel, reviewing MSHA
and State reports, and listening to tapes of the accident
investigation interviews (Tr. 72).

980

Mr. Holt stated that he examined the TD 25 dozer in
question, and that he was familiar with mandatory standard
section 77.404(a}.
In his opinion, a machine can have a
defect and still be considered safe. He indicated that simply
because a machine mechanical part is out of adjustment, or
has a "slight defect," this would not render it unsafe
(Tr. 73). Mr. Holt considered the accident victim t~ be an
experienced and safe worker, and he had a reputation for being
conscientious (Tr. 75).
Mr. Holt stated that the inability to shut down an
engine by use of a throttle was not a safety hazard or a
violation of section 77.404(a}, because there was an alternative
way of checking out the engine and the victim knew this (Tr. 75).
Mr. Holt offered two "theories" of his own as to how
the accident could have happened. He indicated that the victim's
age, lack of agility, and poor eyesight all contributed to
the accident. Mr. Holt stated that the victim may have been
caught up in the crawler of the machine when he attempted
to stop it from creeping after leaving it to go to his pick-up
truck which was nearby, or he may have accidentally accelerated
the machine by inadvertently striking the throttle when he
slipped while getting out of the cab during the lunch break
(Tr. 76-85).
Mr. Holt was of the opinion that a defective throttle
would not render the machine in question unsafe, and he
conceded that the throttle in question was determined to be
defective and that it was replaced (Tr. 85).
On cross-examination, Mr. Holt could not state whether
or not a properly operating throttle could have prevented
the accident (Tr. 87). He confirmed that his theories as
to how the accident occurred were premised on the fact that
the machine engine was running. When asked whether his
opinions would have been different if there was a way to shut
the engine down, Mr. Holt could not answer, but he considered
that his opinions as to how the accident may have happened
do not assume that the throttle was bad (Tr. 88).
Stipulations
The parties stipulated as to jurisdiction, and they
agreed that the respondent is a large mine operator, and
that the proposed civil penalties, if affirmed, will not
adversely affect the respondent's ability to continue in
business (Tr. 3).

981

Findings and Conclusions
KENT 83-66
In this case, the respondent is charged with a violation
of mandatory safety standard 30 CFR 77.404(a), which
provides as follows:
(a) Mobile and stationary machinery
and equipment shall be maintained in
safe operating condition and machinery
or equipment in unsafe condition shall
be removed from service immediately.
Petitioner's counsel argued that the testimony and
evidence adduced here establishes that there was a problem
with the bulldozer throttle linkage, that two months prior
to the accident the operators of that equipment noted a
problem with the throttle linkage, and that a mechanic had
worked on it several times prior to the accident. Further,
counsel asserted that the mechanic had been instructed by
his supervisor to work on the linkage, that the supervisor
knew there was a problem concerning the failure of the throttle
linkage to cut off the machine, and that this is established
by the fact that alternative means were sought to shut the
machine off. Counsel concludes that the respondent has
presented no evidence that there was nothing wrong with the
throttle linkage (Tr. 96-97).
Respondent's counsel asserted that "this throttle
linkage is sort of a mysterious piece of equipment because
sometimes it works and sometimes it doesn't." Counsel suggests
that there is no indication that the throttle linkage failed
to work on the day of the accident, and his view of this
case is that it is one of interpretation of section 77.404(a)
(Tr. 98) .
Respondent's counsel argues that for a machine to be in
violation of section 77.404(a), it must be established that
it has a defect which is likely to result in an injury.
Counsel submits that given the fact that the throttle linkage
in question did not work properly, this condition could not
reasonably result in an injury. Citing the testimony of
Mr. Holt and Mr. Siria that not all equipment defects necessarily
render the equipment unsafe, counsel points to the fact that
in this case there was an alternative method of shutting off
the machine from inside the cab by means of the hydraulic
system, and that the experienced accident victim was more
than likely aware of this alternative method (Tr. 98).
Even assuming a violation, counsel asserts that a very low
penalty should be assessed because of the fact that mine
management was not advised of any defects, and had no knowledge
of any defective throttle (Tr. 99).

982

As I noted during the course of the hearings, I find it
rather lamentable that with all of the investigative resources
available to both the Federal and State agencies and "committees"
who participated in the post-accident investigation in this
case, no one actually dismantled the throttle linkage device
and subjected it to any "shop-tests" to determine whether
it was in fact defective.
The accident report prepared by the
Kentucky Department of Mines and Minerals, exhibit R-1,
contains a list of 33 individuals, including five MSHA
representatives, anda form entitled "Complete Story of
Accident," contains a narrative by the two state inspectors
who prepared it, as to how the accident may have occurred.
The "Conclusion of State Investigating Committee" is stated
in pertinent part, at page seven of the report as follows:
It is the conclusion of the investigating team,
the victim was run over by a TD-25 International
Dozer that he was operating.

*

*

*

Apparently the victim positioned himself on
the left crawler and was trying to shut off the
engine by moving the linkage to the throttle.
In this attempt, he evidently moved the rod in
the wrong direction reving up the engine. The
dozer being in gear started moving, rolling
the victim from off the track forward between
the blade and the left crawler. The lower portion
of his body was crushed by the weight of the
machine. There had been prior reports of the
linkage throttle being out of adjustment and the
engine could not shut off by using the throttle.
On the day of the accident the engine could not
be shut off by means of the throttle. The dozer
was checked the day following the accident and
it could be shut off but this may have been due
to the engine being cool.
(Emphasis added.)
The thrust of MSHA's case is that the cause of the accident
was a defective throttle mechanism, and that by failing to
take the bulldozer out of service, the violation occurred.
Yet, no one ever determined that the throttle was in fact
defective.
Since the investigation produced information
that the throttle may have been out of adjustment, or that
it reacts differently when the machine is hot or cold, it
seems to me that someone should have impounded the throttle,
taken it apart, and determined precisely what the problem was.
In this case, abatement was achieved by replacing the throttle

with a new one, and I suppose the old one was either discarded
or "traded in" on the new one. As an analogy, if someone
were to tell me that an accident was caused by defective
brakes, the first question I would ask is whether or not
the brakes were tested to determine whether they were in
fact defective. Why the throttle was not subjected to any
tests by mechanical experts still remains a mystery.
Notwithstanding my comments above, I conclude and find
that there is ample evidence in this case to support the
citation in question. Although there were no eyewitnesses
to the accident, Mechanic Bowles testified that when he
arrived at the accident scene, the machine had been trammed
back from an embankment where it had come to rest after
running over the victim, and that the engine was still running.
He stated that he climbed into the cab and was unable to
shut the engine off by means of the throttle. He then dropped
th€ blade of the machine, thereby "killing the engine."
He confirmed that the throttle linkage on such machines was
a common problem, and that in those instances where the engine
could not be shut down, the throttle linkage was the problem.
Although the mechanic who installed the new throttle mechanism
to achieve abatement showed him the old one which was taken
off, MSHA did not produce the mechanic to testify at the
hearing, and no further information was forthcoming as to
the actual condition of the old one. Mr. Bowles was of the
opinion that "killing the engine" from outside the machine
because the throttle linkage would not do the job for which
it was designed while one was seated inside the cab was unsafe.
James Jones testified that he operated the bulldozer
in question on the shift immediately before the accident,
and he confirmed that the machine had recently been in the
shop for repairs and was a substitute machine being used
while the regular one was down for maintenance. He stated
that the machine was brought to him by a mechanic and that
the engine was running. He operated it for the rest of the
shift, and when his work was completed, he could not shut
the machine down by using the throttle inside the cab and
had to "kill the engine" by raising the blade, thereby
"choking the motor." He never experienced similar problems
with other bulldozers, and was always able to shut the engine
off by means of the throttle from inside the cab of those
machines. Mr. Jones confirmed that he did not report the
throttle condition to anyone at the end of his shift, and
he did not believe he was in any danger because he could
not shut the engine down by means of the throttle.

984

William Jarvis testified that two months prior to the
accident, he operated the same bulldozer which was involved
in the accident, and at the conclusion of one of his work
shifts he advised his supervisor that he would not operate
the machine again because of an inoperative cutting clutch,
and a bad brake. Mr. Jarvis also stated that he could not
shut the engine off from inside the cab by means of the throttle,
and that he had to step out of the cab and onto the machine
crawler to manipulate the fuel pump throttle linkage before
the engine would shut off. Mr. Jarvis could not recall informing
his supervisor about the throttle condition, and he too
confirmed that he had not previously experienced a throttle
problem with other machines.
Respondent's sole rebuttal to the violation is the
testimony of Mr. Holt, and he advanced several "theories"
as to how the accident may have occurred. However, he candidly
conceded on cross-examination that his theories "leaves the
throttle linkage out of it completely" (Tr. 86). The issue
here is whether or not there was a violation of the cited
standard, and the cause of the accident is not the critical
issue. Since there were no eyewitnesses, and since none of
the witnesses who testified in this proceeding had any first-hand
knowledge as to the chain of events or circumstances which
caused the fatality, Mr. Holt's "theories," do not rebut
the credible testimony by three witnesses which clearly
establishes that the throttle mechanism on the machine in
question did not do the job for which it was intended.
After careful consideration of all of the credible testimony
and evidence adduced in this case, I conclude and find that
the petitioner has established the fact of violation by a
preponderance of the evidence.
It seems clear to me that
the throttle linkage mechanism in question was defective
and malfunctioning, and that the bulldozer engine could
not be shut down by. the usual and normal method of activating
the throttle from inside the operator's cab. As a matter
of fact, on the very day of the accident, a mechanic could
not shut the engine down by means of the throttle and had
to use the "alternative" method of dropping the blade
to choke the engine.
While I have taken note of the fact that no one actually
tested the old throttle mechanism to determine what actually
caused it to malfunction, on the record here presented
there is more than ample evidence to support the conclusion
that the throttle was defective. Aside from the mechanic who
arrived at the scene shortly after the accident, operator
James Jones testified that he operated the very same bulldozer
on the shift immediately preceding the accident and could not

985

shut the engine down by means of the throttle. Further,
since the u~e of the "alternative" method of choking the
engine appears to be a known and acceptable practice, it
logically follows that the respondent had prior knowledge
of a problem with the throttle mechanism in question.
If this were not the case, there would be no need to use the
alternative method.
I further conclude and find that a def ectiave throttle
which requires an operator to stand on the machine crawler
to manipulate the throttle linkage by hand places him in
an unsafe position, particularly when the engine is running
and he is attempting to shut the engine down from this position.
Any sudden forward or backward movement of the machine caused
by over-manipulation of the linkage would probably cause the
man to lose his balance. On the facts of this case, while
it may not be absolutely clear as to what may have caused
the accident, it does seem clear the victim was run over by
the machine. Had the throttle been fixed when the operators
were experiencing prior probleLls in shutting down the engine,
any temptation by the operators to stand on the crawler
to manipulate the throttle by hand would have been removed.
Thus, I conclude and find that the throttle in question was
not maintained in a safe operating condition, and that this
in fact resulted in the bulldozer in question being operated
in an unsafe condition.
Since it was not taken out of service
as required by the cited regulation, the violation is established.
The citation IS AFFIRMED.
Gravity
I conclude and find that the violation here was very
serious. Failure of the throttle mechanism to do the job
that it was supposed to do, namely, facilitate the shutting
down of the machine engine from inside the operator's cab
without resort to outside manipulation or the use of the
"alternative" blade-dropping procedure, contributed to the
severity of the violation. As indicated above, while there
is no direct evidence that the victim was standing on the
crawler and was thrown off when he attempted to manipulate
the throttle mechanism, this conclusion is more reasonable
than any of the theories offered by the respondent.
Inspector Siria marked the "S&S" block on the face of
the citation which he issued. While his testimony in support
of this finding may be rather skimpy, on the facts of this
case the defective throttle mechanism in question did prevent
the machine from being shut down from inside the operator's
compartment. Given this fact, I conclude that it was reasonably
likely that this condition contributed to, or was the proximate
cause of the accident in question. Accordingly, the inspector's
"S&S" finding IS AFFIRi'vlED.

986

Negligence
I conclude and find that the violation here resulted
from the failure by the respondent to exercise diligence in
seeing to it that the throttle mechanism was operating
properly.
Since the testimony in this case indicates prior
problems with the throttle in question, and that other operators
had to use an alternative means of shutting down the engine
by either standing on the crawler or dropping the blade of
the machine, it seems clear to me that the respondent knew
or should have known about the violative condition.
I
conclude that the violation resulted from a high degree of
negligence on the respondent's part.
Good Faith Compliance
The cited machine was taken out of service and the
repairs were made. Although the citation was actually
terminated and abated on May 4, 1982, by another MSHA inspector,
there is no suggestion that any delay was attributable
to respondent's lack of good faith in achieving compliance
once the violation issued, and that is my finding on this issue.
Findings and Conclusions
CENT 83-86 - Fact of violations
Citation No. 2075266, charges the respondent with a
violation of 30 CFR 77.1000, for failure to follow its ground
control plan by allegedly failing to correct certain hazardous
highwall conditions before men were allowed to work in the
cited area.
Section 77.1000 provides as follows:
Each operator shall establish and
follow a ground control plan for
the safe control of all highwalls,
pits and spoil banks to be developed
after June 30, 1971, which shall be
consistent with prudent engineering
design and will insure safe working
conditions. The mining methods employed by the operator shall be selected
to insure highwall and spoil bank
stability.
Inspector Siria confirmed that the particular ground
control plan provision purportedly violated by the respondent
was the one found on page three, under 77.1004(b), (exhibit
P-3).
I take note of the fact that the ground control plan
provisions are identical to MSHA's mandatory standards, and
the particular one relied on by Inspector Siria states as
follows:

77.1004(b). Overhanging highwalls
and banks shall be taken down and other
unsafe ground conditions shall be
corrected promptly, or the area shall
be posted.
I take note of the fact that the respondent's ground
control plan provision simply parrots the language of the
identical mandatory section 77.1004(b). Although the inspector
stated that he reviewed the plan before deciding which portion
to cite, he conceded that he could have cited a violation of
30 CFR 77.1001, but decided to cite section 77.1000 because
of the failure to follow the plan provision.
Citation No. 2075267, charges the respondent with a
violation of 30 CFR 77.1005, for an asserted failure to remove
loose hazardous material from the face of the highwall
in question for a distance of approximately 150 feet.
Section
77.1005, provides as follows:
(a)
Hazardous areas shall be scaled
before any other work is performed in
the hazardous area. When scaling of
highwalls is necessary to correct conditions that are hazardous to persons
in the area, a safe means shall be provided for performing such work.
(b)
Whenever it becomes necessary
for safety to remove hazardous material
from highwalls by hand, the hazardous
material shall be approached from a
safe direction and the material removed
from a safe location.
In support of the citations, petitioner's counsel argued
that even though Inspector Siria may not have known about
the condition of the highwall prior to the accident, the
testimony of the two miners in this case establishes that
the highwall condition "did not look good." Conceding
that one of the miners was of the opinion that the highwall
had not been scaled, while the other one stated that it appeared
that it had been scaled "but not very good," counsel
nonetheless asserted that a violation may still be established
on the basis of the second miner's testimony alone. Counsel
suggests that, at best, the differences in the testimony
only goes to the degree of the violation, and may not serve
to eliminate the presence of the violation (Tr. 249). Counsel
also maintains that the respondent has presented little rebuttal

088

or contradictory testimony concerning the condition of the
highwall as described by the petitioner's witnesses. Counsel
asserts that respondent's management witnesses testified as
to general mine problems, and what the highwall looked like
on the shift prior to the accident, but had no knowledge as
to what it looked like at the time the accident occurred, nor
did they rebut the evidence presented by the petitioner
as to how the highwall looked before and after the accident
(Tr. 250). Counsel maintains that MSHA has established
both violations.
Respondent's position with respect to the citations is
that the highwall in question was in fact inspected prior
to the fatal accident by the drill foreman on the prior shift
and by the mine superintendent, and that they found the highwall
to be free of any hazardous conditions, including any readily
observable or detectable hazards. Further, respondent's
position is that the highwall was properly scaled and stripped,
and that prior to the accident in question it was safe and
comported with all of the requirements found in Part 77 of
MSHA's safety standards dealing with highwalls (Tr. 163).
Counsel pointed out that the pit foreman who actually
supervised the work of the accident victim died of a
heart attack (Tr. 162). However, based on the testimony
of its experienced witnesses, respondent is of the view that
the highwall conditions did not give rise to the issuance of
any violations in this case.
In further support of its case, respondent's counsel
argued that the crux of the matter concerns the condition
of the cited highwall prior to the accident, and that any
knowledge of this condition on the part of Inspectors Siria
and Utley came after the incident during their investigation.
Further, counsel asserted that, as testified to by the
witnesses, events such as weather and nearby blasting operations
would result in changes to the highwall. Counsel also argues
that the testimony of Inspectors Siria and Utley, and Mr. Penrod,
that no scaling was done, was contradicted by the testimony
of Mr. Montgomery, as well as Mr. Carlisle, Mr. Barrett, and
Mr. Teague.
Since Mr. Siria and Mr. Utley had limited or
no practical surface mining experience, as compared with the
many years of daily practical surface pit experience by the
respondent's witnesses, counsel suggests that their testimony
outweighs that presented by the petitioner in support of
the violations. Finally, counsel cites a prior decision of
mine in which I concluded that a violation had not occurred
in circumstances similar to the instant case, MSHA v. S.A.M.
Coal Co., Inc., Docket No. SE 31-21, June 3, 1982, 4 FMSHRC
1051 (June 1982).

989

In this case, it is clear that the citations were issued
after a fatality occurred at the respondent's mine.
The
citations issued after MSHA had completed an investigation
into what may have caused the rock fall.
Typically, fatal
accident investigations invariably result in the issuance
of citations and recriminations which all too often are after-thefact attempts by the parties to exonerate each other from
responsibility.
Invariably, MSHA takes the view that since
someone was killed, the respondent mine operator was obviously
at fault and should be held accountable.
The respondent mine
operator reacts by taking a defensive posture that "accidents
happen," and that simply because an accident happens, it
should not be assumed that the operator has violated the law
and should pay the price. Once the case comes on for hearing·
before the Judge, the parties attempt to litigate the matter
on the basis of speculative theories and hypothesis.
Citation No. 2075266 was issued after the accident
occurred.
Based on certain information obtained during the
course of the investigation, Inspector Siria issued the citation
and charged the respondent with failing to follow its ground
control plan.
The particular plan provision relied on by
Inspector Siria was a provision that requires the respondent
to ."take down overhanging highwalls and banks" and to otherwise insure that "unsafe ground conditions are corrected."
I am convinced that had the rock which killed the miner in
this case not· fallen, there would have been no citation.
Once the rock fell and struck the miner, MSHA felt compelled
to hold someone accountable.
The cited ground control plan requires that overhanging
highwalls and banks be taken down. Here, the citation was
issued by an inspector with little or no experience in the
inspection of surface mines or highwalls. As a matter of
fact, when he issued the citation, he made no negligence
findings, and did not mark the appropriate block on the face
of the citation. At the hearing, after having an opportunity
to ponder on it, he conceded that he didn't know why he failed
to make any negligence findings, and he conceded that he
made a mistake.
Recognizing the fact that an inspector's job
is difficult enough without a Judge second-guessing him,
here the citation issued after an investigation.
I would
think that MSHA would assign an inspector who is experienced
in surf ace mining inspections to conduct the investigation
and issue any citations which may be warranted.
I am not
particularly impressed by after-the-fact excuses, and it
places the Judge in the untenable position of making credibility
findings based on speculative testimony.

990

On the facts and circumstances surrounding this particular
citation, the inspector conceded that he had never inspected
the highwall prior to the rock fall in question, and he
admitted that such a fall can change the appearance of the
highwall. Even though the inspector charged that men were
allowed to work in the pit area in question before any
hazardous conditions had been corrected, he admitted that
he had no evidence or knowledge that any miners were assigned
any such duties by mine management personnel who knew that
any hazardous conditions existed. The inspector's sole basis
for this allegation was the fact that a rock fell and struck
a miner.
There is no testimony by the inspector who issued the
citation that any overhanging highwalls or banks ever existed
prior to the accident. As a matter of fact, Supervisory
MSHA Inspector Utley, who accompanied Inspector Siria during
his post-accident investigation, testified that he saw no
indication of any overhanging highwall materials. MSHA's
counsel conceded during the course of the hearing that if
the crack which appeared suddenly and without warning caused
the rock fall which resulted in the fatality, mine management
would have no way of knowing in advance about the crack.
Counsel also candidly conceded that even if the highwall had
been properly scaled, there was no way to assure that a sudden
crack would not unexpectedly appeared.
The testimony by the miners who were in the pit at the
time of the accident, including an eyewitness and member of
the safety committee, establishes that once the crack became
visible and known, those miners working under it, including
the victim, were not necessarily concerned because "it was
not working" and they observed no visible changes in the highwall conditions.
In short, the testimony of miners who worked
in the pit, and d·irectly under the area where the rock fell,
indicates that they were not particularly concerned with the
conditions of the highwall and they had no reason to believe
that they were in any danger. Of course, once the rock fell
and struck the victim, and once MSHA embarked on an official
inquiry, it is a natural tendency for the very same people
who had no concern for the conditions prior to the incident
in question, and who failed to give any warning to the victim
in advance or withdrawing from the zone of danger, to now
inf er or imply that the highwall was not scaled or that the
conditions which prompted the rock fall were obviously
ignored.
After careful consideration of all of the evidence and
testimony in this case, I conclude and find that MSHA has

991

failed to establish by any credible evidence that the
respondent failed to follow its ground control plan by
failing to correct any hazardous highwall conditions,
particularly the taking down of overhanging materials, before
men were allowed to work in the pit. Accordingly, Citation No.
2075266 IS VACATED.
,
Citation No. 2075267 was issued approximately five minutes
after the previous one, and it charges the respondent with
failing to remove "loose hazardous material" from the face
of the highwall for a distance of approximately 150 feet.
The cited standard, section 77.1005, requires in pertinent
part that "hazardous areas'·shall~be scal~d before any other
work is performed in the hazardous area." This language is
similar to the language used by Inspector Siria in the previous
citation where he charged the respondent with failing to
correct hazardous highwall conditions before men were allowed
to work in the area.
Mr. Siria testified that the highwall "appeared to be
loose," that the top had not been scaled, and that overhangs
were present. This testimony is contrary to that given
by Mr. Siria in support of the previous citation he issued.
There, he said absolutely nothing about any overhanging
conditions, and Inspector Utley, who was with him, testified
that he saw no indications of any overhanging materials.
Further, MSHA's counsel conceded that there are no allegations
that overhangs were present on the highwall, or that the
top of the highwall was not cleaned off or scaled (Tr. 158,159).
When asked whether he was contending that the face of
the highwall had not been cleaned for a distance of 150 feet,
Inspector Utley replied that "I wouldn't say that it had not
been cleaned.
It was just a little rough." Although he
indicated that he believed that someone had "got a little
behind or in a hurry" and that "they failed to drag the top
of the highwall the way they had been doing in the past,"
Inspector Utley admitted that he did not interview any of
the shovel or stripper shovel operators (Tr. 153). Mr. Siria
interviewed none of the shovel operators, and the petitioner
did not summon them for testimony.
It occurs to me that if
there is a question as to whether a highwall had ever been
scaled or cleaned at some time prior to an accident, one
critical item of evidence would be some testimony from shovel
or scraper operators who do that type of work.
I find it
lamentable that the inspectors here did not contact the
shovel operators to determine whether they did in fact scrape
or clean the highwalls. A possible answer as to why this was
not done may lie in Mr. Siria's statement that "it was a proven
fact that it was bad because it had killed a person, and so
I thought that would be proof enough really" (Tr. 13).

992

When asked whether he had spoken to anyone who may
have observed the highwall prior to the accident, Mr. Siria
identified Mr. Penrod and Mr. Montgomery.
Both of these
individuals were "hole loaders," and their testimony
concerning the highwall consists of their observations
immediately prior to the rock fall.
Mr. Penrod testified that the highwall area ahead
of where he was working had been scaled, dragged, and cleaned,
but that his immediate work area was not. While he could
not state the distance that the highwall had not been scraped,
he did indicate that in his immediate work area, the
distance was approximately 150 to 200 feet.
Although he
did indicate that the respondent had failed in the past to
scrape the highwall, he also indicated that the respondent
usually scraped and cleaned the wall and the top. He also
confirmed that the shovel operator scales the highwall to
take down loose material. However, he could not state
whether he did or did not observe the shovel operator scale
the wall. His observations of the highwall conditions were
only what he saw after the accident, and he conceded that
highwall conditions do change.
Mr. Montgomery's testimony is that when he observed
the highwalr during his shift it did not appear that it had
been scaled "really good," that it looked "no worse" than
other pit areas, and that he observed no loose hanging material.
He also indicated that the area where the rock fell "hadn't
been done as cleanly as it had in some other areas of the
wall."
Respondent's defense is based on the testimony of a
drill foreman who said that he observed the highwall the day after
the accident and found it to be in good condition and properly
scaled, a drill foreman who stated that he inspected the
highwall on the day of the accident and observed no unsafe
conditions or loose, unconsolidated materials on the highwall,
and the mine superintendent who testified that he drove through
the pit area on the morning of the accident and found nothing
to alarm him because in his opinion the highwall area where
the accident occurred had been adequately scaled.
Respondent's witnesses, for the most part, testified as
to how scaling and stripping of the highwall is normally done.
MSHA's eye witnesses who were in the vicinity of the rock fall
and who saw the accident, testified that while they observed
a crack which apparently appeared unexpectedly after the work
shift had begun, they did not believe it was hazardous
because they detected no movement, and opted not to withdraw
from the area, not to say anything to their foremen, and not to
caution the victim that he should be alert to any possible
danger. Of course, once the rock came loose and began rolling
towards the victim, it was too late, and he could not hear the
warnings from his fellow miners.

993

On the basis of all of the testimony and evidence adduced
in this case, and after viewing all of the witnesses during
the course of the hearing, I am convinced that the accident
resulted from an unforeseeable and unexpected event, namely
the sudden appearance of a crack in the highwall which
caused a large rock to roll down and strike the victim. I
am further convinced that there was nothing anyone could do
to prevent the accident. Even if it could be established
without any doubt that scaling and stripping had taken place
immediately before the crack appeared, the accident would
probably have still happened.
I take note of the fact that the respondent's ground
control provision, 77.1005, only provides for corrective action
"where hazardous highwall conditions exist that would endanger
persons in the area. 11 The comparable MSHA mandatory standard
section 77~1005, requires scaling in "hazardous areas,'' and
the regulatory language requires that this scaling work be
done in a safe manner when scaling of highwalls is necessary
to correct conditions that are hazardous to persons in the
area. As I have often observed, such regulatory language
leaves much to the imagination. Rather than simply requiring
the removal of loose, unconsolidated materials from highwalls,
the language contains a condition precedent that requires
that someone make a judgment call that a hazard is initially
present. Typically, that judgment is made after the highwall
collapses and someone is hurt. This case is a classic example
of this.
Three miners, including the victim, worked in an
area where a crack appeared, but no one was concerned until
a rock began to roll down the highwall towards the victim.
None of the miners saw fit to alert the pit foreman about
the crack, and they opted not to withdraw from the work area.
For its part, mine management was satisfied that a prior
cursory inspection of the highwall detected no unusual
conditions. Once the accident occurred, MSHA arrives on the
scene, and after an investigation by two nonsurface mine
inspectors who failed to establish first-hand whether any
scaling work had actually been done, citations were issued
based on observations which lend themselves to differences
of opinion and sheer conjecture as to whether or not the
required scaling had taken place.
It is not unusual in cases of this kind where there
had been a fatality, for the parties to speculate as to what
may have happened. Howeve~, in the context of a specific
citation charging a violation of a specific mandatory standard,
I am compelled to decide the case on the basis of credible
evidence. On the facts of this case, the critical question
is whether or not the highwall had been scaled and loose

994

material taken down for a distance of 150 feet as charged in
the citation. While I am not convinced that MSHA has established
through any credible testimony that the immediate highwall area
where the crack appeared and the rock fell were not properly
scaled, neither: has the respondent established that it was.
MSHA's case as to what the highwall looked like after the
accident occurred supports a finding that loose, unconsolidated
materials were present along the highwall perimeters adjacent
to the rock fall area.
I conclude and find that the testimony of Mr. Penrod,
Mr. Montgomery, and Inspectors Siria and Utley, establish
that the highwall areas adjacent to, and in the proximity
of the actual rock fall area were not scaled so as to remove
all loose and unconsolidated materials.
I am not convinced
that these adjacent areas were changed in any marked degree
by the rock which fell, nor am I convinced that the respondent
has established that it inspected the highwall and that actually
scaling of the entire cited area had taken place. Accordingly,
while I conclude and find that MSHA has not established that
the immediate area above the actual rock fall had not been
scaled, I do find that it has presented enough credible testimony
to support a finding that some of the adjacent areas did
contain loose hazardous materials which had not been scaled
or stripped. Accordingly, to that extent the citation IS
AFFIRMED.
Gravity
I conclude and find that violation no. 2075267 was
serious. Failure to adequately scale the loose hazardous
materials which were present in the areas adjacent to the rock
fall area presented a hazard to miners who had to travel
and work under the highwall area in question.
Inspector Siria marked the "S&S" block on the face
of the citation which he issued. The failure by the respondent
to adequately scale the highwall area in question would
reasonably likely result in injuries in the event that the
unscaled materials fell. Accordingly, the inspector's finding
IS AFFIRMED.
Negligence
I conclude and find that the violation here resulted
from the failure by the respondent to exercise reasonable
care to insure that the cited highwall area was adequately
scaled. Accordingly, I conclude that the violation resulted
from ordinary negligence.

995

I take note of the fact that in exhibit R-2, MSHA's
assessment officer notes that in a telephone interview with
Inspector Utley on November 23, 1982, Mr. Utley stated that
mine management could not have known about the crack which
appeared in the highwall, and that management "makes a
diligent effort to promote a good safety program."
The issue here is whether or not the areas adjacent
to the rock fall and crack area were adequately scaled. Under
the circumstances, the fact that the sudden appearance of
the crack could not have been predicted, does not absolve
the respondent from its responsibility to insure that the
cited areas were otherwise adequately scaled of loose hazardous
materials.
Good Faith Compliance
The record reflects that the loose materials in question
were timely removed from the highwall area in queqtion a day
after the citation issued, and three days earlier than the
time fixed by the inspector. Accordingly, I conclude that the
respondent exhibited more than adequate good faith abatement
efforts in achieving compliance.
Size of Business and Effect of Civil Penalties on the Respondent's
to Remain in Business.
The parties have stipulated that the respondent is a
large mine operator and that any penalty assessments for the
violations in question will not adversely affect its ability
to remain in business.
I adopt these stipulations as my
findings and conclusions in both of these docketed cases.
History of Prior Violations
Respondent's history of prior violations for the mine
in question is reflected in MSHA's computer print-out, exhibit
P-4. This information reflects that for the period March 29,
1980 through March 28, 1982, the respondent paid civil penalty
assessments for a total of 45.violations. None of these
were for prior violations of section 77.1000, but two were
for prior violations of section 77.404(a). However, no
further information was forthcoming as to what these two were
all about.
For an operation of its size and scope, I cannot conclude
that respondent's history of prior violations is such as
to warrant any additional increases in the civil penalties
assessed by me in th~se cases.

996

Penalty Assessments
On the basis of the foregoing findings and conclusions,
and consideriang the statutory criteria found in section
llO(i) of the Act, I conclude that the following civil
penalties are reasonable and appropriate for the two violations
which have been affirmed:
KENT 83-66
Citation No.

Date

30 CFR Section

Assessment

1035414

3/29/83

77.404(a)

$2,500

Citation No.

Date

30 CFR Section

Assessment

2075267

9/9/83

77.1005

$

KENT 83-86

850

ORDER
Respondent IS ORDERED to pay civil penalties in the
amounts shown above within thirty (30) days of the date of
these decisions, and upon receipt of payment by MSHA, these
proceedings are dismissed.

Distribution:
Darryl A. Stewart, Esq., U.S. Department of Labor, Office of
the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Michael O. McKown, Esq., Peabody Coal Co., P.O. Box 235,
St. Louis, MO 62166 (Certified Mail)

/slk

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

FORRIE W. EVERETT,

APR 201984

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. YORK 83-7-DM

INDUSTRIAL GARNET EXTRACTIVES,
Respondent

MSHA Case No. MD 83-59

DECISION
Appearances:

Forrie W. Everett, South Paris, Maine, pro se;
Carol A. Guckert, Esq., Portland, Maine-;-I"orRespondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
Complainant contends that he was discharged on July 1, 1983,
from the position he had with Respondent because of activity
protected under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. Respondent denied that Complainant's
discharge was related to protected activity.
Interrogatories
were served on Complainant by Respondent which Complainant failed
to answer.
Respondent filed a motion to Dismiss on March 12,
1984, because of this failure.
I reserved my ruling on the
motion. Pursuant to notice the case was heard in Auburn, Maine,
on March 22, 1984. The case was consolidated for hearing with
the case of Lawrence Everett v. Industrial Garnet Extractives,
Docket No. YORK 83-6-DM, but since the cases involve separate
alleged discriminatory discharges, they will be decided separately. Ferrie Everett testified on his own behalf; Scott
Andrews, Bruce Sturdevant, Scott Hartness and Richard Kusheba
testified on behalf of Respondent. The parties1.were given the
opportunity to file posthearing briefs, but neither party has
done so. Based on the entire record, and considering the contentions of the parties, I make the following decision.
FINDINGS OF FACT
Complainant was hired as a maintenance worker by Respondent
in April, 1982. Respondent began operating the subject plant in
1979, taking over an existing facility built in about 1925. Ore

998

is delivered from a mine site to the plant where it is crushed
and separated.
It is then dryed and screened into different
sizes.
Prior to his employment with Respondent, Complainant had
been employed in a construction company, operating heavy equipment, driving and working with heavy steel. He did maintenance
on the machinery, on steel frames and on trucks. His job at
Respondent required him to do maintenance on various kinds of
machinery, such as rock dryers, elevators, small motors,
vehicles and heavy equipment.
It also included welding. When
he was hired he earned about $4.25 per hour and worked from
40 to 55 hours per week.
When he was first hired, he was regarded as a good worker
and received early pay raises. Beginning in about January, 1983,
the foremen began complaining that he did not complete assigned
work. Machine operators complained that the repair work he did
on their machines was not done properly.
In March, 1983 and in
June, 1983, two different foremen recommended that Complainant
be discharged.
There was considerable confusion at Respondent's plant as to
supervisory authority. Complainant was hired by Scott Hartness,
Respondent's Vice President in charge of production. On many
occasions, perhaps "most of the time" (Tr. 11), Hartness assigned
jobs to Complainant and discussed maintenance problems with him.
Scott Andrews was second shift foreman beginning in January or
March, 1983, and became "foreman for new construction" in June
1983. While he was second shift foreman, Complainant, who worked
days, was not under his supervision "unless his shift overlapped"
(Tr. 71). When Andrews became foreman for new construction he
did not have any employees assigned to him directly, but had to
get employees working under other foremen after clearing it with
them. Bruce Sturdevant was plant foreman beginning in August,
1982. He was in charge of the machine operators, bagging operators and, "at times, the maintenance staff" (Tr. 81). In about
May, 1983, Wally Hinch was maintenance foreman in charge of all
maintenance personnel. He quit after about 1 month in this
position. Complainant expressed uncertainty about the identity
of his immediate supervisors during his employment, and the
record. before me makes his uncertainty understandable.
On about June 21, 1983, Complainant's brother Lawrence
Everett, an electrician working at Respondent's plant, was
discharged.
Lawrence Everett filed a discrimination complaint
with the Federal Mine Safety and Health Administration and
Complainant talked to the MSHA investigator about his brother's
complaint. This interview, however, occurred after Complainant
himself had been discharged.

999

Complainant sustained three work related injuries at
Respondent's plant.
In September, 1982, he sustained an eye
injury when the band attached to his safety glasses was caught
on a piece of steel and the glasses cut his eye. He lost 2 or
3 days from work.
In early, 1983, while grinding, a piece of
steel entered his eye beneath the safety glasses. He did not
lose time from work.
In June 1983, he injured his thumb when
he was working on a machine on top of an elevator and the
operator started the machine. Complainant did not lose time
from work.
After the second eye injury, Complainant complained to
Scott Hartness about the inadequate glasses. Hartness replied
that they were cheap.
In April or May, 1983, Complainant was directed by Hartness
and Sturdevant to perform welding on a fuel tank which had fuel
spilled on the outside of the tank. A fire occurred, and
Complainant complained to Sturdevant.
On about June 29, 1983, Complainant was directed by Scott
Andrews to weld a steel leg while standing in the bucket of a
front-end loader 12 feet in the air. He refused to do it,
because he believed it was unsafe. However, he did begin to get
the equipment ready to weld the legs on using a contractor's
crane to lift the tank. At about 4:15 p.m., Complainant and
another employee began to weld the first leg on the tank. The
proposed legs were different sizes, however, and before they
completed welding the first leg, it was the end of the shift and
they went home. On June 30, 1983, Complainant began working about
7:00 a.m. He was using a rented portable welder. The job proved
complicated and was not finished when Scott Andrews approached
Complainant about 4:30 p.m. He told Complainant that the rented
welder would have to be returned by 5:00 o'clock and suggested
they use the company's small AC welder. Both Complainant and
the crane operator told him the job could not be done with the
small welder. Andrews took the rented welder, the tank was put
back down, the one leg was cut off, and Complainant went home.
Andrews told Complainant not to cut off the leg, but Complainant
did so, because he thought it would be bent otherwise. There
was a heated discussion between Complainant and Andrews before
Complainant went home. Andrews was upset and when he returned
to the office he told Sturdevant what happened, and that he was
going to discharge Complainant. Hartness was home sick at the
time.
When Andrews came to work the following day, he "pulled
Ferrie Everett's time card" and told Everett that he had fired
him. He states that he fired Complainant·for loafing on the job
and not following his supervisor's instructions.

1000

On about June 21, 1983, Complainant signed a statement
prepared by his brother concerning alleged unsafe practices at
the subject plant. Andrews was not aware of this statement at
the time Complainant was discharged.
After his discharge, Complainant was off work about 1 week
during which he received unemployment compensation. Since then,
he has worked for the J. P. Cullinan Oil Company and has been
earning about the same wages as he made while with Respondent.
He does not seek reinstatement.
ISSUES
1. Was Complainant's discharge motivated in any part by
activities protected under the Mine Safety Act?
2.
If so, did Respondent establish that it would have
discharged him in any event for unprotected activities alone?
3. If Complainant's discharge was in violation of the Act,
what remedies is he entitled to?.
CONCLUSIONS OF LAW
To establish a prima f acie case of discrimination under the
Act, Complainant must show that he was engaged in activity protected by the Act, and that his discharge was motivated in any
part by the protected activity. Secretary/Pasula v. Consolidation
Coal Company, 2 FMSHRC 2786 (1980), rev'd on other grounds
sub nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211
(3rd Cir. 1981); Secretary/Robinette v. United Castle Coal Co.,
3 FMSHRC 803 (1981); Secretary/Bush v. Union Carbide Corporation,
5 FMSHRC 993 (1983) •
If the Complainant establishes a prima facie case, the burden
is on the employer to show that the discharge was also motivated
by unprotected activity and that he would have discharged
Complainant for the unprotected activity alone. Pasula, supra.
PROTECTED ACTIVITY
Complainant's discussion with the MSHA investigator concerning his brother's discrimination case would have been protected,
but it took place after Complainant was discharged. His signing
the ~ff idavit prepared by his brother concerning alleged safety
violations was protected activity. There is no evidence that
Scott Andrews who discharged Complainant was aware of it. Therefore, I conclude that his discharge was not motivated in any part
because of this activity.

1001

Complainant's complaint to Scott Hartness about the inadequate safety glasses, his complaint to Sturdevant about being
required to weld a tank with fuel oil spilled on it, and his
refusal to perform a welding task while standing in the bucket
of a raised front-end loader were all protected activities.
UNPROTECTED ACTIVITY
Respondent has alleged that Complainant shirked his duties;
that he did poor quality work, much of which had to be done
over; that he avoided work and worked slowly; that he refused
to follow directions.
If these acts occurred, none of them can
be treated as protected activities under the Act.
COMPLAINANT'S DISCHARGE
Andrews stated that he discharged Complainant "mostly for
loafing on the job and not following superviscir's instructions"
(Tr. 63). He also stated that after his heated discussion with
Complainant on June 30, he (Andrews) "was pretty ~iled up," and
that he "didn't think there was any reason for any foreman having
to put up with the stuff that I'd just went through . . . "
(Tr. 7 5) .
There is no evidence that Complainant's complaint to
Hartness about inadequate safety glasses, his complaint to
Sturdevant about welding on an oily fuel tank, or his signing
the affidavit on his brother's behalf were motivating factors
in the discharge.
However, Complainant's refusal to weld from
the bucket of the loader occurred during the task which preceded
the discharge.
I conclude that it was part of the motivation
for the discharge. There were obviously other motivating factors,
however.
Complainant had a long history of doing work which was
deemed unsatisfactory by management. He resented authority, and
refused to follow orders. He berated Andrews when the portable
welder was taken from him.
I conclude on the basis of all the
evidence that he would have been discharged for unprotected
activity alone, namely for refusing to follow orders and for
berating his supervisor.
Therefore, no violation of section 105(c)
of the Act has been established.
ORDER
Based upon the above findings of fact and conclusions of
law, the complaint and this proceeding are DISMISSED for failure
to establish a violation of section 105(c) of the Act.

)

(~
kt/vvkt/'
James A. Broderick

.

Administrative Law Judge

1002

Distribution:
Mr. Ferrie w. Everett, RFD #2, South Paris, ME 04281
(Certified Mail)
Carol A. Guckert, Esq., 477 Congress Street, Portland, ME 04101
(Certified Mail)
/fb

1003

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

APR 2 31984

CONTEST PROCEEDING

UNITED STATES FUEL COMPANY,
Contestant

Docket No. WEST 84-40-R
Citation No~ 2072262; 1/10/84
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

King No. 4 Mine

DECISION
Appearances:

Timothy M. Biddle, Esq., and Rochelle M.
Gunner, Esq., Crowell & Moring, Washington, D.C.,
for Contestant;
Frederick w. Moncrief, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for Respondent.

Before:

Judge Fauver

Pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq., U.S. Fuel contests
a citation issued by the Secretary on--January 10, 1984. The
citation alleges that U.S. Fuel violated section 105(c) (3) of
the Act by failing to comply with my December 15, 1983, order
to reinstate Albert Dicaro.
The citation required abatement by January 13, 1984. U.S.
Fuel filed this contest on January 11, and an expedited hearing
was held on January 12.
At the hearing, I ordered a stay of enforcement of the
citation pending further notice in this proceeding.
The parties have agreed that there are no issues of
material fact and the case is appropriate for decision on the
record.
ISSUE
The controlling issue is whether my December 15, 1983,
order requiring reinstatement was enforceable by the Secretary
(MSHA) on January 10, 1984.

.1004

BACKGROUND
On May 26, 1983, I issued a decision on liability in
Dicaro v. United States Fuel Company, Docket No. WEST 82-113-D:
(1) adjudicating that U.S. Fuel violated section 105(c) of the
Act by discharging Mr. Dicaro and (2) holding the reqord open
for further proceedings on issues of relief, such as back pay,
attorney fees, and costs. A hearing was held on the relief
issues, and on December 15, 1983, I issued a decision granting
relief.
The order part of the decision ordered U.S. Fuel to
offer Mr. Dicaro reinstatement to his former position, provided
he presented medical evidence that he was able to work as a
miner.
It also ordered the parties to attempt to stipulate
certain back pay questions and, if they could not stipulate, to
submit their respective proposed amounts to me not later than
20 days from the date of the decision. The order stated that
I was retaining jurisdiction over the case.for the 20-day period
and "until a ruling on any counter-proposals filed in such
period."
In early January 1984, Mr. Dicaro appeared at U.S. Fuel's
offices in Utah, presented a medical statement of his fitness
for duty, and requested reinstatement under my December 1983
order. U.S. Fuel refused, stating that it would not reinstate
him unless the Commission in a final decision so ordered and
that U.S. Fuel had directed counsel to seek review of my
decisions (of May and December, 1983).
On January 10, 1984, a federal inspector appeared at
U.S. Fuel's offices and issued Citation No. 2072262, the
citation which is contested in this proceeding. The citation
states:
By decision of Administrative Law Judge
William Fauver of the Federal Mine Safety and Health
Review Commission issued December 15, 1983, United
States Fuel Company is required to of fer employment
to Albert Dicaro upon receipt of a medical release.
The decision of Administrative Law Judge Fauver is
effective upon issuance unless stayed by the Federal
Mine Safety and Health Review Commission.
The
decision and order of relief constitute an order
issued pursuant to section 109(c) of the Federal
Mine Safety and Health Act of 1977, P.L. 91-173.
United States Fuel is in violation of this order by
failing to comply after Albert Dicaro submitted the
necessary medical release stipulated in the order .

.1005

On January 10, 1984, the citation was modified as follows:
Citation No. 2072262 is hereby modified to
reflect that a violation of section 105(c) (3). has
occurred instead of section 109(c) as stated in the
citation. Attorneys for the Department of Labor
have also deemed that the citation be extended
until January 13, 1984. Notice of the extension
was also given to William Vrettos by phone.
STATUTORY PROVISIONS
Pertinent parts of the statute are as follows:
First, in section 113, which creates the Commission:

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( c) The Coffi-mission is authorized to delegate to any group of three
or more members any or all of the powers of the Commission, except
that two members shall constitute a quorum of any group designated
pursuant to this paragraph.
( d) (1) An administrative law judge appointed by the Commission
to hear matters under this Act shall hear, and make a determination
upon, any proceeding instituted before the Commission and any motion
in connection therewith, assigned to such administrative law judge by
the chief administrative law judge of the Commission or by the Commission, and shall make a decision which constitutes his filial disposition of the proceedings. The decision of the administrative law judge
of the Commission shall become the final decision of the Commission
40 days after its issuance unless within such period the Commission
has directed that such decision shall be reviewed by the Commission in
accordance with paragraph (2). An administrative law judge shall
not be assigned to prepare a recommended decision under this Act.
(2) The Commission shall prescribe rules of procedure for its
review of the decisions of administrative law judges m cases under this
Act which shall meet the following standards for review:
(A) (i) Any person adversely affected or aggrieved by a decision
of an administI"ative law judge, may file and serve a petition for
discretionary review by the Commission of such decision within 30
days after the issuance of such decision. Review by the Commission
shall not be a matter of right but of the sound discretion of the
Commission.
(ii) Petitions for discretionary review shall be filed only upon one
or more of the following grounds:
(I) A finding or conclusion of material £act is not supported
by substantial evidence.
(II) A necessary legal conclusion is erroneous.
(III) The decision is contrary to law or to the duly promulgated rules or decisions of the Commission.
(IV) A substantial question of law, policy or discretion is
involved.
(V) A prejudicial error of procedure was committed.
(iii) Each issue shall be separately numbered and plainly and
concisely stated, and shall be supported by detailed citations to the
record when assignments of error are bas~d on the record, and by
statutes, regulations, or principal authorities relied upon. Except for
good cause shown, no assignment of error· by any party shall rely on
any question of fact or law upon which the administrative law judge

1006

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b_ad not been afforded an opportunity !<> pass. Review by the Commiss~on shall be granted only by affirmative vote of two of the Commissioners present and voting. If granted, review shall be limited to the
questions raised by the petition.
(B) At any time within 30 days after the issuance of a decision of
an administrative law jud~e, the Commission may in its discretion· (bv
affirmative vote. of two o~ the Commissioners present and voting) orde·r
the case before it for review but only upon the ground that the decision
may be contrary to law or Commission policy, or that a novel question
of policy has been presented. The Commission shall state in such order
!he specific issue of la~, Co~n:iission pol~cy, o: novel que~tion of policy
mvolved. If a party s petition for discretionary review has been
granted, the Commission shall not raise or consider additional issues
in such review proceedings except in compliance with the requirements
of this paragraph.

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(The provisions of section 557 (b) of title 5, United States Code
with regard to the review authority of the Commission are hereby
expr~s~ly superseded to the extent that they are inconsistent with the
prov1s1ons of subparagraphs (A), (B), and (C) of this paragraph.)

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Second, in section 106, which provides for judicial review:
SEc. 106_.. {a) (1) A!IY P.erson adversely. affected or aggr~eved by_ an
order of the Commission ISsued under this Act may obtam a review
of such order in any United States court of appeals fo~ the circui~ in
which the violation is alleged to have occurred or m the Umted
States Court of Appeals for the District of Columbia Circuit, by
filing in such court within 30 days followin~ the issue.nee of s~ch
order a written petition praying that the order be modified or set aside.

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Finally, in section lOS(c), the anti-discrimination section:

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(c) (1) No person shalrdischarge or in any manner discriminate
against or cause to be discharged or cause discrimination against or
otherwise interfere with the exercise of the statutory rights of any
miner, representative of miners or applicant for emJ?loyment in any
coal or other mine subject to this Act because such mmer, representative of miners or applicant for employment has filed or made a complaint under or related to this Act, induding 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 miner, representative of miners or applicant for employment has instituted or caused to be instituted anv pro_ceeding 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 l>ehalf
of himself or others of any statutory right afforded by this Act.

.1007
/

(2) Any miner or applicant for employment or representative of
miners who believes that he has been discharged, interfered with, or
otherwise discriminated against by any person in violation of this subsection may, within 60 days after such violation 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, ap_plicant for employment, or representative
of miners alle,Png such discrimination or interference and propose
an order grantmg 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 shalJ 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 shalJ have authority in such
proceedings to require a l?erson 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 fay and
interest. The complaining miner, applicant, or representative o miners
may present additional evidence on his own behalf during any hearing
held pursuant to his paragraph.
(3) Within 90 days of the receipt of a complaint filed under paragraph (2), the Secretary shall notify, in wnting, the miner, applicant for employment, or representative of miners of his determination
whether a violation has occurred. If the Secretary, upon investigation,
determines that the provisions of this subsection have not been violated, the complainant shall have the right, within 30 days of notice of
the Secretary's determination, to file an action in his own behalf before
the Commission, charging discrimination or interference in violation of paragraph (1). The Commission shall afford an O{>portunity
for a hearing (in accordance with section 554 of title 5, Umted States
Code, but without regard to subsection (a) ( 3) of such section) , and
thereafter shall issue an order, based upon findings of fact, dismissing
or sustaining the complainant's charges and, if the charges are sustained, granting such relief as it deems appropriate, including, but not
limited to, an order requiring the rehiring or reinstatement of the
miner to his former position with back pay and interest or such remedy
as may be appropriate. Such order shall become final 30 days after its
issuance. Whenever an order is issued sustaining the complainant's
charges under this subsection, a sum equal to the aggregate amount
of all costs and expenses (including attorney's fees) as determined by
the Commission to have been reasonably incurred by the miner, apJ?hcant for employment or representative of miners for, or in connection
with, the institution and prosecution of such proceedings shall be
assessed against the person committing such v10lation. Proceedings
under this section: shall be expedited by the Secretary and the Commission. ··Any order issued by the Commission under this paragraph
shall be subject to judicial review in accordance with section 106.
Violations by any person of paraf.aph (1) shall be subject to the
proYisions of sections 108 and 110 (a .

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OPINION
The statutory distinction between temporary and final
reinstatement orders is significant in considering. the issue
here. Section 105(c) (2) provides that a temporary reinstatement
order "shall order immediate reinstatement .
• pending final
order on the complaint." In contrast, section 105(c) (3), which
authorizes permanent reinstatement orders, states, "such order
shall become final 30 days after its issuance." In addition,
the Commission's Rules provide that an administrative law judge's
temporary reinstatement order "shall be effective upon receipt or
actual notice" (29 C.F.R § 2700.44(a)), but do not contain such a
provision for a judge's order granting permanent reinstatement.
I note, also, that in Gooslin v. Kentucky Carbon Corp., 3 FMSHRC
1707, 1711 n. 5 (1981), in directing review of a Judge's decision,
the Commission specified that his temporary reinstatement order
was to "remain in effect pending our decision" on review.
This
type provision does not appear in the Commission's review orders
in cases in which the judge did not issue a temporary reinstatement order but, on the merits, did issue a permanent reinstatement
order.
Considering the statutory language, and the Commission's
rules and practices, I conclude that reference to an "order" of
the Commission in section 105(c) (3) means a final order of the
Commission and that an order of an administrative law judge does
not become a final order of the Commission until 40 days have
passed without the Commission ordering review of the judge's
order. On the date of the citation, January 10, 1984, my order
of December 15, 1-983, was not a final order of the Commission
because 40 days had not elapsed since its issuance. Also, since
not even 30 days had elapsed since its issuance, even if "order"
as used in section 105(c) (3) meant a judge's order (rather than a
final order of the Commission, as I hold), the December, 1983
order had not become effective under section 105(c) (3).
CONCLUSIONS OF LAW
1. My order of December 15, 1983, was not a final order
of the Commission as of January 10, 1984, and was not effective
as an e~forceable order as of that date.
2.
The Secretary's citation issued on January 10, 1984,
is invalid because the December 15, 1983 order was not
enforceable on January 10, 1984.

1009

ORDER
WHEREFORE IT IS ORDERED that Citation No. 2072262, issued
and modified on January 10, 1984, is hereby VACATEP.

tt!ii/~
1-~t
William Fauver

VUL-

Administrative Law Judge
Distribution:
Timothy M. Biddle, Esq., and Rochelle M. Gunner, Esq., Crowell
& Moring, 1100 Connecticut Avenue, N.W., Washington, DC 20036
(Certified Mail)
Frederick W. Moncrief, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)
/fb

1010

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

.APR 231984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 83-198
A.C. No. 36-05065-03507

v.

Windber Mine 78

BETHLEHEM MINES CORP.,
Respondent
DECISION
Appearances:

Covette Rooney, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
R. Henry Moore, Esq., Rose, Schmidt, Dixon
& Hasley, Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of
civil penalty filed by the petitioner against the respondent
pursuant to Section llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. 820(a). The petitioner seeks
a penalty assessment of $650 for an alleged violation of
mandatory safety standard 30 CFR 75.1105, as noted in a
Section 104(a) notice no. 2015155, served on the respondent
on January 18, 1983, by MSHA Inspector Samuel J. Burnatti.
The respondent filed a timely answer in this matter
and a hearing was conducted in Johnstown, Pennsylvania,
on December 1, 1983.
Issues
The principal issue presented in this ·proceeding is (1)
whether respondent violated the provisions of the Act and
implementing regulations as alleged in the proposal for
assessment of civil penalty filed in this proceeding, and,

1011

if so, (2) the appropriate civil penalty that should be
assessed against the respondent for the alleged violation
based upon the criteria set forth in section llO(i) of the
Act. Additional issues raised by the parties are identified
and disposed of in the course of this decision.
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

3.

Commission Rules, 29 C.F.R.

§

u.s.c~

§

820(i).

2700.1 et seq.

Stipulations
The parties stipulated to the following (Tr. 6-10):
1. Respondent is a coal mine operator subject to
the jurisdiction of the Federal Mine Safety and
Health Act of 1977.
2. The Section 104(a) citation in issue in this
case, as well as a subsequently issued Section 104(b)
order, were duly served on the respondent's agents
at the mine in question by an authorized representative
of the petitioner.
3. Respondent's Windber Mine 78 produces coal on an
intermittent basis and at the time the citation
issued its annual coal production was 417,145 tons.
The parent corporation, Bethlehem Mines Corporation
had an overall 1982 annual coal production of over
seven million tons, but that its 1983 coal production
is expected to be significantly reduced.
4. Assuming the fact of violation is established,
a reasonable civil penalty assessment will not
adversely affect the respondent's ability to continue
in business.
5. From approximately 1976 to December 1, 1983,
MSHA has issued no prior Section 104(b) Orders at
the Winder Mine 78.
During the two-year period preceding the date of the
issuance of the citation in issue in this case,
respondent has been assessed for 84 violations, none

1012
: :~ .:- ...._

...

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of which were for violations of mandatory
standard 30 CFR 75.1105.
6. During the period 1976 to December 1,
1983, 37 different MSHA inspectors inspected
the Windber Mine 78, during 688 inspection"
days.
During the period between February 10, 1982,
and January 18, 1983, the North Main Section
of the Windber Mine 78 was inspected on 16
occasions and no citations or orders were
issued for alleged violations of mandatory
standard 30 CFR 75.1105, with respect to the
battery charging station.
Discussion
Citation No. 2015155 states the following condition or
practice:
When checked with a smoke cloud the
current of air ventilating the North
Main charging station was not being
coursed directly to return in that
the current of air was entering the
#3 intake entry and coursing up
into the working section.
The inspector fixed the abatement time as 8:00 a.m.,
January 19, 1983.
On January 19, 1983, at 8:50 a.m. the inspector issued
a Section 104(b) Order No. 2015156, in which he stated as
follows:
Little or no effort was made to direct
the current of air ventilating the North
Mains battery charging station to return.
On January 20, 1983, a second MSHA inspector, David B. Alsop,
terminated Citation No. 2015155, and the justification for
this action states as follows:
The current of air ventilating the North
Main charging station was being coursed
into the return air course. A 14 foot
piece of plastic pipe 3 inches in diameter
was extended out into the charging station
and extending back to the 4 inch vent pipe
in the stopping wall. Also, an 8 foot

1013

piece of deflector canvass was installed
on the outby side of the charging station.
A hole was left in the 4 inch pipe at the
stopping to allow air to enter there and
also at the end of the 3 inch pipe.
Petitioner's testimony and evidence
MSHA Inspector Samuel J. Burnatti testified as to his
background and experience, which includes service as a
ventilation specialist since May 1983. He confirmed that he
conducted an inspection at the mine on January 18, 1983, and
that he issued the citation in issue for a violation of
section 75.1105, exhibit P-1. He also confirmed that at the
time of his inspection he was accompanied by respondent's
representative Tom Korber, and UMWA representative Rex Morgart
(Tr . 1 7 - 2 0 ) •
Mr. Burnatti stated that he issued the citation after
observing a battery charging unit partiallv out in the intake
entry, and the current of air that was ventilating' the unit
was not being coursed to the return.
He confirmed this by
making four smoke tube readings.
He identified exhibit P-7
as a sketch of the area and the charging unit in question.
He stated that he drew the sketch, and he explained the
notations on the sketch as the locations where he made the
smoke tube tests. He stated that four of the tests indicated
that the air used to ventilate the unit was going into the
intake, but that a test made directly at the wall at the
back of the charging station and directly in front of a
pipe protruding from the wall, indicated that the air at that
location went out through the pipe (Tr. 20-23).
Mr. Burnatti testified that section 75.1105 requires
that all ventilation of the battery charging station will
be coursed directly to the return, and since his smoke tests
indicated that it was not, he issued the citation. He
indicated that the intent of the cited section is to insure
that any hydrogen gas from the batteries, or any smoke which
may result from any equipment fires would be pulled through
the pipe in the wall into the return air and out of the mine
(Tr. 24).
Mr. Burnatti stated that at the time he observed the
cited condition the ·charging unit was energized with the power
on, but that no equipment was in the charging station itself.
He indicated that the "three inch.vent pipe" notation on
his sketch was an error, and that the pipe was a four inch
pipe (Tr. 25).
He identified exhibit P-5 as a copy of notes
which he made, and he explained his notations (Tr. 28-31).

1014

Mr. Burnatti confirmed that he made several suggestions
as to how the violation could be abated, and these included
the use of a "fly curtain," and extending the pipe further
out from the wall. He also suggested moving the unit from
out in the entry to a location along the left side wall of
the station, but not in the corner, or moving it across the
station to the right side wall. He indicated that moving
the unit was not necessary to abate the citation, and he
denied that he insisted that it be moved. Although he indicated
that he was not totally familiar with the state law requirements
for venting the charging unit, he did state that the state
inspectors do not want the unit inby the batteries being
charged because it creates a hazard (Tr. 31-33). He indicated
that the respondent could have moved the unit "into the
left side" of the charging station "or moved it across to the
right side," and that this would have abated the citation
and would have also complied with state law (Tr. 33). He
marked these locations with an "x" mark on his sketch (Tr. 35).
Mr. Burnatti stated that he has observed other battery
charging units in the mine, and that they are placed "basically
in the same area, but they are not outby, the end of this
tin or the rib." He stated that the other units he has
observed "are inby the crosscut inby the tin" (Tr. 36).
Mr. Burnatti indicated that in the instant case the
location of the charging unit was a violation of section
75.1105, because the way it was positioned the intake air
was going directly over it, and since "it was slightly outby
the edge of the tin, as long as that air is passing over,
and going up into the section, I can't see how you could
achieve compliance" (Tr. 37). Under the circumstances, the
smoke tests he made were "a formality" (Tr. 36).
Mr. Burnatti .stated that he initially fixed the abatement
time at "roughly twenty-two hours" (Tr. 32), but that when
he returned to the area the next day, he observed that a
three inch pipe had been inserted into the existing four-inch
pipe and extended outby from the wall, and he identified
its location on his sketch. He also described an opening
or gap between the two pipes, and confirmed that he made
another smoke tube test at that time (Tr. 38). He stated
that a Kersey battery powered tractor was in the station,
and when he took smoke readings directly over the tractor
battery and the charging unit itself, he determined that the
air exiting the charging station was going back into the
intake escapeway (Tr. 39). When he inquired as to why the
condition had not been corrected, Mine Foreman Andy Salata
advised him that some work had been done on the pipe and
that he "assumed it was okay" (Tr. 39).

1015

Mr. Burnatti confirmed that he issued the Section 104(b)
order because he believed that extending the time further
would pose a possible fire or ignition hazard, and the Kersey
battery was being charged at this time. · He also believed
that the respondent was not diligent in attempting to meet
his initial abatement time because it took little 'time to
install the three-inch pipe, and a smoke test would have
indicated where the air was going. He denied that the
issuance of the order had a disruptive effect on mining
operations, and he believed that general laborers could have
been used to achieve timely abatement and work could
have continuea at the face while the corrections were being
made (Tr. 41).
Mr. Burnatti explained his "negligence" and "graviiy"
findings on the face of his citation as follows (Tr. 41-42):

Q. With reference to the negligence, you
have marked low, could you explain to the
Court, what made you decide that the negligence
with reference to the 104a, was originally
low?
A. Well, I felt in this case, here, that
due to the fact that you are talking slight
movement or low volume of air, to detect
it, you almost need a smoke cloud and that's
why my -- normally, without the use of a
smoke cloud, it wouldn't be detected by a
foreman, or anybody else, and the smoke
clouds are not normally carried with them.

Q. So that's why you considered the negligence
low?
A.

Yes.

Q. With reference to gravity, would you explain
to the Court, why you marked the reasonably
likely box, and the lost work days, or restricted
duty?
·
A.
I felt that it would be reasonably likely,
was the fact that this condition would continue
to exist, and the fact that that area was dry,
and you have electrical ~quipment and cable,
and the fact that the number three entry is the
primary intake escape way, for the north mains
section, was my reasons there, then the lost
work days, and restricted duty, I felt that
possibly, it would be the smoke, I don't feel
that it would be fatal or permanent disabling,

1016

due to the fact that the section does
employ another escapeway, an alternate
escapeway, and this unit, I think, I
believe is only four or five cross cuts
outby the working section.

Q. And you have the number 7, indicating
the number of persons affected, are those
the same seven people you talked about working
at the face?
A.

Yes.

Mr. Burnatti explained that the location of the charging
unit placed it slightly past the tin wall of the charging
station into the number 3 entry, and that when he returned
to the area the day after he issued the citation the unit
had not been moved (Tr. 44). He further explained his
"negligence" findings as follows (Tr. 45):
JUDGE KOUTRAS:
You have never seen a mine
operator take a smoke cloud reading to
determine whether or not the movement of air
over a battery charger station?
THE WITNESS:

No, I've never seen it.

JUDGE KOUTRAS: Are you suggesting from that,
had they taken one, and detected that the air
was not being forced into the return, that they
should have alerted them, they should have done
something to the battery charging station?
THE WITNESS: Yes, and I feel that the fact,
the way that the charging unit itself is positioned,
should alert them.
On cross-examination Mr. Burnatti conceded that the
sketch of the location of the charging unit which is in his
notes, exhibit P-5, seems to place it further within the are.a
of the tin wall than it appears on his sketch made in August 1983,
exhibit P-7. The later sketch places the unit further into
the entry, and he conceded that the two sketches "are slightly
different" (Tr. 50). He indicated that the later sketch
represented the location of the unit on both January 18 and
19 , 19 8 3 (Tr • 4 9 ) •
Mr. Burnatti stated that he was certain that the pipe he
observed at the time the citation issued on January 18, 1983,
was a four inch pipe, rather than a three inch pipe as
initially noted (Tr. 51-52). He also indicated that the

1017

pipe he first observed at the back wall of the charging
station, while "slightly" protruding from the wall, was
"flush" to ·the wall. He reiterated that the purpose of
that pipe was to vent the battery charging station, which
he described as a "three-sided tin enclosure'' (Tr. 53-54).
Mr. Burnatti stated that on the day he issued the citation
there were three or four miners on the section, but that
mining was not taking place on that shift (Tr. 57). He
confirmed that he checked the battery charging unit and
found nothing wrong with it (Tr. 58), and he explained his
concern over a possible fire and gas hazard as follows
(Tr • 5 8- 6 0 ) :

Q. Fire hazard, now did you check
the battery charging unit, to see if it
was defective in any way?
A.

I checked in a general way, yes.

Q.

And was it -- it was perfectly okay?

A.
I wouldn't say it was perfectly, but
it was found to be okay.

Q.

Did you find anything wrong with it?

A.

No.

Q. Now, if this event occurs, well, are you
saying that the actual occurrence of a fire,
is reasonably likely here?
A.
If the condition would stand uncorrected,
yes.
Q. Well, the condition that you saw was
improper ventilation, how does that cause a
fire?

A. That would take your smoke, or your hydrogen
gas, out into your intake entry, which in turn
travels up into your working section.

Q. Then you are not saying that the occurrence
of a fire, or the occurrence of production of
hydrogen gas is reasonably likely, you are just
saying if -- in the event that those occur, the
smoke might go up the intake?
A. Yeah, or with the hydrogen gas, you could
have an explosion.

1018

Q.
But if those events occurred, well, the
first day that you were there, there wasn't
anything being charged, was there?
A.

No, no equipment was being charged.

Q.
So without anything being charge~~ the first
day that you were there, there was no hydrogen
gas, obviously?
A.

No, sir.

Q. And you didn't take any samples to test that
first day?
A.

No, sir.

Q.
The second day that you were there, there
was a unit on charge, did you take any samples
that day to see if there was hydrogen gas being
produced?
A.

No, sir.

Q.
So you don't know the second day whether or
not, there was any being produced at all?
A.

No.

Q.
In addition to hydrogen -- isn't hydrogen
sulphite produced by batteries sometimes, when
they are being charged?
A.
I'm not sure, I just know that they emit
hydrogen gas.
Q. And of course, to have an explosion from
hydrogen gas, you have to have a source of
ignition, do you not?
A.

Yes, sir.

Q. And in this case, the source of ignition is
the battery charging unit, if it is close to
the hydrogen gas, is that correct?
A. Well, it doesn't necessarily have to be
close, if that gas is passing over it, and it
should short, or the piece of equipment itself,
short out, that's your ignition.

1019

Q~
Okay, the first day, there wasn't a piece
of equipment according to you, and the charging
unit seemed to be in good condition, is that
correct?

A.

Yes.

Mr. Burnatti confirmed that the respondent made some
effort to timely abate the citation, but he believed it was
a "little effort." He also confirmed that company officials
advised him that they could not move the charging unit "because
the state said that they couldn't." He indicated that
company officials asked him to speak with the state inspector
who was there at the time the order was issued, but that he
did not do so (Tr. 62). He also indicated that he did not
check the Kersey machine that day to see if there was anything
wrong with it (Tr. 63).
Mr. Burnatti stated that he was on the same section on
January 14, 1983, prior to the time the citation was' issued,
but since he was in the face area he "probably" did not
visit the cited battery charging station and would not have
walked past it (Tr. 65). Ile confirmed that he did not
measure the amount of air going by the charging station
in the intake at the time he issued the citation, but he
agreed "there was probably a considerable amount of air"
present (Tr. 65).
Mr. Burnatti confirmed that after issuing the citation
he discussed with Mr. Korber ways to correct the conditions,
and these included installing "a solid check up, and enclosing
it, a fly check to redirect the air current, or to move
the charging unit itself, or enlarge the pipe." He also
suggested that the pipe in the wall be extended or enlarged
(Tr. 66-67). He explained how the tractors and scoops travel
to the charging station, and he confirmed that the sizes of
the vent pipes which he noted were approximate, and while
he had a ruler in his possession, he did not measure the
pipes in question (Tr. 67-71). He explained that the four
inch pipe in the wall was about four and a half feet off the
floor, and the extended three inch pipe was hung from the
ceiling with a wire (Tr. 72).
Mr. Burnatti explained the direction of the air ventilating
the charging station, and estimated the dimensions of the
station as 16 feet deep and 20 feet wide (Tr. 74-78). He
stated that power for the charging unit comes from a trailing
cable from the section load center power station located
inby in the working section. No batteries are stored in
the charging station, a·nd all of the batteries are charged

1020

while on the equipment. The charging unit is on skids and
can be moved by pulling it with a tractor or by hand
(Tr . 9 6 - 9 7 } •
David Alsop, MSHA training specialist, testified that
prior to April 1, 1983, he worked on ventilation and respirable
dust for eight years. He testified as to his M·~mA training
and background, and he confirmed that he visited the mine in
question on January 19, 1983, to conduct a resp~rable dust
inspection (Tr. 109-111}.
Mr. Alsop identified exhibits P-2 and P-4 as copies of
the terminations of the citation and order issued by Inspector
Burnatti. He explained that since he was at the mine,
mine management asked him to look at the work done to abate
the order. After checking with his supervisor at MSHA's
district office, he did so and abated the citations. He
stated that he observed that the respondent had installed a
canvas check curtain and extended a three inch pipe some 14
feet to force the air ventilating the battery charging station
into the return. He confirmed this by means of a smoke tube,
and since compliance was achieved, he terminated the order
(Tr. 114-116} •
Mr. Alsop identified the 14 foot long extended pipe
as a plastic pipe extending from a four inch pipe in the wall.
The extended plastic pipe extended out over the top of the
charging unit, and when he checked the air current at several
locations in the station he found that it was going into
the pipe (Tr. 117}. He explained the location of the pipe
and curtain by marking it on the sketch (Exhibit P-7, Tr. 118}.
On cross-examination, Mr. Alsop stated that when he
abated the order, a UMWA representative was with him, and
he expressed satisfaction over the respondent's abatement
efforts (Tr. 120}. He terminated the citation because that
is what he believed had to be done in order to process the
citation through the assessment office (Tr. 124-125}.
Rex A. Morgart, testified that he is employed by the
respondent and that he serves as the Chairman of the UMWA
Mine Safety Committee. He confirmed that he was the walkaround
representative who accompanied Mr. Burnatti during his
inspection on January 18, 1983. He stated that he could not
recall whether a tractor or a scoop was parked in the battery
charging station at the time the citation was issued. He
also stated that the charging unit was on, but that Mr. Korber
tagged it out when Mr. Burnatti advised him that there was a
problem (Tr. 256-257}.

1021

Joseph D. Hadden, Jr., Senior Mining Engineer,
Ventilation.Division, MSHA Pittsburgh Health and Technology
Center, testified that he has been employed in the ventilation
division for eleven years. He stated that he holds a BS degree
in mining from the University of Pittsburgh, and that he has
first and second grade mine papers in the State of ,Pennyslvania,
mine foreman papers from the State of West Virg1nia, and that
he is a registered professional engineer in the State of
Pennsylvania (Tr. 261).
Mr. Hadden. confirmed that he is familiar with the facts
and testimony in this case, and that based on his interpretation
of section 75.1105, all of the air (100%), used to ventilate
the battery charging station is to be directed directly into
the return air course (Tr. 262). When asked how that was
possible, he offered the following suggested methods
(Tr • 2 6 2 - 2 6 3 ) :
A. One method would be is what was
discussed here earlier today. Moving
the stopping wall back so that the
crosscut is deeper so, that this turbulent
zone would be further removed from where
the equipment would be at.
Another method would be to increase the
size of the pipe, the vent pipe, so that
it would increase the air quantity that
was flowing in the crosscut into the return.
A third possibility would be to enclose the
front of the charging station, with a door.
And, through that door have a small opening.
It would act as a regulator, to allow a
measured quantity of air to flow into the
enclosure and then out the vent pipe and
into the return.
Q. And, upon what do you base those ideas
or that criteria? Has that been tested by
MSHA, or has that ever been done anywhere else?

A.
The third idea, there were a series of
tests run. eight or nine years ago, and there is
publication out on it. Called, "Controlling
smoke from a fire-proof structure underground."
And, this was the basis of those tests.
So, if a fire did develop, say, in the battery
charging station, the fire or combustion couldn't
enter the intake air stream where it would be
transported up to the face.

1022

On cross-examination, Mr. Hadden further explained his
recommendations for achieving compliance with his citation
(Tr. 263-27 2; 27 5-2 8 0) .
Respondent's testimony and evidence
Thomas F. Korber, respondent's shift mine foreman,
testified as to his background and experience, and he confirmed
that he accompanied Inspector Burnatti during his inspection
of January 18, 1983. After examining ~r. Burnatti's sketch,
exhibit P-7, he .stated that the cited charging unit was
located "right at the corner" of the charging station tin
wall and that it did not extend beyond that point. He also
indicated that a three inch pipe which extended from the
station wall, over and across the belt, and into the return,
was a "normal setup" for a battery charging station at the
mine. The only difference from other mine charging stations
was the fact that other stations were deeper (Tr. 129-131).
Mr. Korber stated that when he first went to the charging
station area on January 18, 1983, a Kersey tractor or scoop
was being charged, but coal was not being produced that day.
Two men were on the section, and they were bolting (Tr. 133).
Mr. Korber stated that when he saw that Inspector Burnatti
had questioned the charger unit, he pulled the power from
the section power center and tagged out the charging unit
plug so that it would not be energized (Tr. 134). However,
he did not remove the equipment which was being charged.
Mr. Korber testified that when Inspector Burnatti
tested the air with his smoke tube, it was not going out of
the pipe in the wall very well, and there was "very little
suction." Mr. Korber checked and found that one of the pipe
joints was loose, and after putting it back together the
air was "drawing better at that point," but Mr. Burnatti
was not satisfied since he insisted that all of the air had
to be vented through the pipe (Tr. 135).
Mr. Korber stated that in the past most MSHA inspectors
did not use smoke tubes, and they simply put their hand over
the pipe to determine if there was any suction.
If suction
was present, they never questioned the ventilation. He
stated that a three-inch pipe was at the wall, and he told
Mr. Burnatti he would install a larger one to induce better
suction (Tr. 136).
Mr. Korber stated that after the citation issued
he contacted his supervisors Andy Salata and Bobby Breck,
and they advis,ed him not to move the charging unit "because

1023

we would have .trouble with the state." Prior MSHA inspectors
who looked at the mine charging stations "out where it was
located here" never advised him that he was in violation of
the law (Tr. 138).
Mr. Korber stated that his boss instructed him to get
material so that the next shift could remove the three inch pipe from
the wall and install a four inch pipe. He returned to the
charger unit location the next day with Mr. Burnatti and the
power plug was still out, but the tractor or scoop was still
parked at the charger. Mr, Korber indicated that Mr. Burnatti
was upset because the charger had not been moved "inside"
and that he indicated that "we do very little to show good
faith to abate his violation" (Tr. 139). Mr. Burnatti
informed him that he wanted the charger moved in because he
was still going to take his smoke test over the charger,
the unit, and the batteries. Mr. Korber was of the opinion
that the air flow on the next day improved with the installation
of the larger pipe (Tr. 140).
Mr. Korber stated that it was difficult to see where
the smoke was going when the tube was broken because of
air swirling caused by turbulence. The fourteen foot piece
of pipe was installed after Mr. Burnatti left on the day after
the citation issued (Tr. 141). However, Mr. Korber was not
present when Mr. Alsop abated the violation (Tr. 142). He
explained his actions the day after the citation issued as
follows (Tr. 142-143):

Q. Now, you weren't there when the actual,
when Hr. Alsop came in to abate the violation,
were you?
A.

No.

Q. What was done to abate it, as far as you
know?
A. After Mr. Burnatti left, myself and
Mr. Salata discussed what we would do. We
saw, in order to, so that we could use that piece
of equipment that was being charged, which
it wasn't being charged then because, I
had the power off. But, so that we could
get it out of there and start using it again,
and start charging pieces of equipment
again, we decided, you know, we better put
that fourteen foot extension on there to
satisfy the federal.
So, that's, and then
we put a check across, pa~tially across
the intake there.

1024

Q.

As it is shown on P-7?

A.

Yes.

Q.
Now, just to clarify things.
The second
day, when you went in there the Kersey, or
the tractor, or the scoop was still tnere, was
it charging?
A.

Not the second day, no.

Q. You said you tagged it out, or put a piece
of paper, with your name on it?
A.

Yes.

Q. When you unplugged it, what was your intention
by doing that?
A.
I saw that we was going to have a problem,
you know, with the federal, and I didn't want
to, anything to be disturbed there, so I took
the power off of it.
I figured the power better be off of it, and
stay off of it until we settled this dispute
here, and you know, I told everybody not to bake
the tractor, or the scoop out of that charging
station, just leave everything alone.

Q. When you say you told everybody, who did
you tell?
A. Well, my tag on the plug, nobody could put
it back in.
It had my name on it so I had to
remove it.
But, I told the other shifts, the
foreman on the other shift, and then there would
be no question about it.
On cross-examination, Mr. Korber described the battery
charging station tin walls as follows (Tr. 143-144):

Q. Mr. Korber, with reference to the tin wall
that was in the battery charging station, did
that tin wall extend out into the crosscut,
out into the intake entry?
A.

~.

Q. was it flush with the rib, I mean, did it
end exactly where the rib ended?

1025

A.
It was, it come out, the whole way
out the crosscut, it just made somewhat of
a curve. Not clear out into the intake entry,
no.
Q.
But, it did not stop at the rib line?
tin wall?

The

A.
It come out, more or less, right beside
the rib line, it just made a curve, it just,
the last piece of tin, what I'm saying, was just
bent to make the curve.
Q. And, where did the charging unit end?
it follow that curve?
A.

Did

It was right at the end of the tin?

Q. Where the tin ends, when you say the end
of the tin, do you mean the curve?
A.
Right at the curve piece, right at the curve
piece.
Q.

Where it started to curve?

A.

Um-hmm.

Mr. Korber stated that after the four inch pipe was
installed he did not test the air ventilating the charging
station, but he believed that the next shift did. However,
he did not know whether records were made of the tests, and
he was not aware of the test results. He indicated that
one of the shift foremen told him that the larger pipe was
drawing out more of the air (Tr. 145-147).
Mr. Korber confirmed that no one moved the charger unit
to ascertain whether moving it would take care of the problem
(Tr. 154).
In response to further questions, Mr. Korber
testified as follows (Tr. 154-158):
JUDGE KOUTRAS:
So, why didn't, on an experimental
basis, was it ever suggested to anyone, "Hey,
let's move it in and see if it works?" Because,
if you moved it in and it didn't work, no one
did that did they?
THE WITNESS:

No.

JUDGE KOUTRAS:
No one actually moved this unit
back to see whether that would take care of the
problem?

1026

THE WITNESS:

No, sir.

Right.

JUDGE KOUTRAS: Okay. And, the reason you
didn't is because you were afraid that you
were going to run afoul the state people,
right?
THE WITNESS:

Yes.

JUDGE KOUTRAS: You indicated earlier that
on prior inspections, when other MSHA
inspectors were in there, all they did was
go up and put their hand on the pipe to see
if there was suction, that satisfied them?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: Mr. Burnatti was the only
one that went in there and used a smoke tube?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: So, as far as I know, the first
inspectors that went in there, an~ put their
hand against suction, didn't know whether that
air that was ventilating, whatever the heck
it was ventilating, and it actually went out
that return, did they?
THE WITNESS: Not in the sense of looking at
smoke, no. But, also, I'm not saying that they
didn't check. They did check both sides of the
pipe.
JUDGE KOUTRAS: My point is this, if there's a
scoop, or a piece of equipment in that area,
being charged, and an inspector walks in there,
sees two batteries being charged by this very
same unit, and he walks up and puts his hand against
that pipe that's on that wall, and feels that
there is some suction there, are you suggesting
to me, that in that situation you won't get a
citation? That inspector is perfectly content
that the air is being ventilated in that?
THE WITNESS:
JUDGE KOUTRAS:

They were.
That's what happened?

THE WITNESS: They were, yes, sir. I went
with many of them, and yes, they did. That's
exactly what they did.

JUDGE KOUTRAS: That's exactly what they do.
But, this man that came in there to inspect,
used something else, he used a smoke tube?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: And, he found that it wasn't
going through that pipe, all of it wasn't going
through?
THE WITNESS:

Not enough to suit him, yes.

JUDGE KOUTRAS: To suit him.
whether it suits him or not.
it suits the

I could care less
I'm concerned whether

THE WITNESS: No, but, what I'm saying is that
the other inspectors that came into the mine, and
I accompanied many of them, it suited them the
way it was.
JUDGE KOUTRAS: What, in your opinion, is the
proper way to check to see whether or not air is
going through the return? Put your hand against
the pipe, or to break smoke tubes?
THE WITNESS:
no.

We've never broke any smoke tubes,

JUDGE KOUTRAS: I didn't ask you that. What do
you think is the proper way to determine?
THE WITNESS: Well, I am saying, my proper way,
if I had a three or four inch pipe there, and it
wasn't broken anywhere, and it was drawing, yes,
that would satisfy me.
JUDGE KOUTRAS:
THE WITNESS:

That would satisfy you?
Yes.

With regard to Mr. Burnatti's smoke tube tests, Mr. Korber
stated as follows (~r. 162-164):
JUDGE KOUTRAS: When he tested it, he said
that he tested it in five different places.
heard his testimony?
THE WITNESS:

Yes.

1028

You

JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
break five?
THE WITNESS:
smoke tubes.

He broke five smoke tubes?
That's what he says, yes.
On

the 18th?

Yes.
Do you question that?
I wouldn't say five.

Did he

He broke

JUDGE KOUTRAS: He broke smoke tubes. Did
he break some over the batteries that were
on the scoop?
THE WITNESS:
JUDGE KOUTRAS:

Yes.
And, where did the smoke go?

THE WITNESS: When he broke the smoke tube
over the batteries on the scoop, some smoke would
go out the pipe, some would swirl around and it
was hard to say where it was going.
JUDGE KOUTRAS:

This was visually?

THE WITNESS: Yes. It was, you have an amount
of turbulence in that crosscut where your charger
is, any charger is, and it's hard to say where
the smoke goes.
JUDGE KOUTRAS:
batteries?
THE WITNESS:

Was there turbulence over the
Yes.

JUDGE KOUTRAS:
batteries?

Why was there turbulence over the

.THE WITNESS:

That's about halfway in the crosscut.

JUDGE KOUTRAS:

So, the batteries --

THE WITNESS: Back, way back against the wall you
won't have turbulence, no.

1029

And, at Tr. 166-168:
THE WITNESS: I'm telling you, the way it
swirls, some is going to swirl around and
start going out the pipe, and some is going
to swirl around and go down the intake.
JUDGE KOUTRAS: The same thing would apply
to the battery charging unit, wouldn't it?
THE WITNESS:

Yes.

JUDGE.KOUTRAS: It will swirl. Some will go
one way, and some will go the other?
THE WITNESS:
JUDGE KOUTRAS:

On the charging unit?
Right.

THE WITNESS: Most of it would swirl around and
go down the intake because, it's further out.
JUDGE KOUTRAS:
THE WITNESS:

None of it would go in the return?
I'd say, very little.

JUDGE KOUTRAS: Okay. Now, it's stated, it says
that air currents used to ventilate that the
assembly requires you to ventilate the batteries
and the battery charging unit, and it says
it has to go to the return.· So, would you agree
that in that situation with the swirling going
down the entry, none of it goes to the return?
THE WITNESS:
JUDGE KOUTRAS:

Just over the batteries.
Over the charging unit?

THE WITNESS: Over the charging unit, yes.
little would go to the return.
JUDGE KOUTRAS:
right?
THE WITNESS:
JUDGE KOUTRAS:
it?
THE WITNESS:
yes.

Very

Very little would go to the return,
Yes.
It would be a violation, wouldn't
According to that day, I would say,

1030

JUDGE KOUTRAS: Why was he insistent that
you move that unit, do you know?
THE WITNESS: Well, because when he was
breaking his smoke tube over top of it, most
of the smoke was going down the intak'e.
JUDGE KOUTRAS: So, he assumed that if you
moved the unit, and then he broke his tube,
most of it would go through the return, is
that a fair assumption?
THE WITNESS:

I would say that's what he assumed.

JUDGE KOUTRAS: But, nobody did that to see if
he was right or wrong?
THE WITNESS:

No, we didn't.

JUDGE KOUTRAS: Wouldn't that be a logical step
for you to take, and if he was proved right then
you would have the state people on your hands,
right?
THE WITNESS:

Yes.

JUDGE KOUTRAS: So what? Now, you've got the
federal people on your hands. So, who are you
going to pacify?
THE WITNESS: Yeah but, then your just playing
a game, when the state comes you just pull it
back out, and when the federal comes you just
push it back in.
Andrew Salata, mine foreman, respondent's mine 78,
testified as to his background and experience, including the
preparation of mine ventilation plans (Tr. 199-201). Mr. Salata
stated that he first learned about the citation on the afternoon
of January 18, 1983, when Mr. Korber informed him that Inspector
Burnatti wanted the charging unit moved. The state inspector
was at the mine that day, and Mr. Salata indicated that
he discussed the matter with him "a little bit" (Tr. 202).
Mr. Salata informed Mr. Korber that the charger couldn't
be moved because "I can't violate the state law" (Tr. 201).
Mr. Salata confirmed that he did not discuss the violation
with Mr. Burnatti on January 18, but the next day he met
with him at the charging station and Mr. Burnatti informed
him that he was not satisfied with the amount of air going
into the return.

1031

Mr. Salata explained his problems with the state mine
inspector's as follows (Tr. 205-206):

Q.

Now, to your knowledge, had any other
inspector required Mine 78 to move it's charger
further into the crosscut?

A. At first, we kept our chargers right back
against the stopping.
In 1978, the state come
out and they said they do not want the chargers
there because, there's a good potential
for an ignition.
They say, "you take your charger, move it out
into the intake air. You charge your batteries
in your regular charging station."
We had it sitting out there for, approximately,
two and a half to three years.
This was the way
that it was always done.
Then it come around, about three years ago, they
said you just move them, just inby, move them just
inby.
JUDGE KOUTRAS:

This was the state?

THE WITNESS: The state and the federal all
agreed to this, they agreed. They'd walk by it
constantly. And, we'ver never had a problem
with the charging stations.
Now, again, they want to move it in. This is
why I talked with Frank Bahopin that day. And,
he says, "You can't move them in any. The closer
you put them the closer to the ignition source
you're going to be."
Also, I mentioned the pipe, he definitely would
not buy the pipe because, they have a flier out
on that since 1978.
I can't, you suggested in making a choice, if
I made a chance, if the air would have passed
over, we'd have kept it going, if I'd had an
ignition, I'm just as liable with the state as I
am with the federal.
Referring to Inspector Burnatti's sketch, exhibit P-7,
Mr. Salata described·the air flow and ventilation system
through the charging station, and he stated that since the

1032

air is swirling it would be impossible to test to see what
amount is going in one direction and what amount is going
in the other (Tr. 209).
On cross-examination, Mr. Salata indicated that a larger
sized pipe against the wall of the charging station would
remove more air into the return, and that where possible,
charging stations are located directly against the return.
He conceded that the state now allows him to move the charging
unit "a little bit more inby," and that this occurred "two
weeks later." He also indicated that Mr. Burnatti only
suggested that the charging unit be moved, and he did not say
that he had to move it in order to abate the citation
(Tr. 215-216) •
Steven P. Sanders, respondent's chief mine electrician,
testified as to his mine experience and training. He confirmed
that he was familiar with the battery charging station, and
he explained how the charging unit functions.
He confirmed
that it was an A.C. unit, and he stated that the type of
charging units used in the mine produce very little gas.
As compared to a D.C. unit, the A.C. unit produces less heat
and the units are provided with several short circuit protective
devices, including fusing devices (Tr. 216-223). He also
confirmed that the charging units are inspected weekly, and
that his records indicate that the unit in question was last
inspected January 3 and 12, 1983, prior to the issuance of
the citation (Tr. 223). The inspections did not reveal
any dangerous conditions on the units (Tr. 223).
None
of the units at the mine have ever caught fire, and none
"never even get hot" (Tr. 224).
On cross-examination, Mr. Sanders stated that while he
didn't open the charging unit in question on January 18, 1983,
he conducted a visual inspection and detected no bare or
frayed edges, and "everything was restrained properly."
He did not recali a piece of equipment being charged that
day (Tr. 224-225).
Charles F. Ream testified that he was the second shift
mine foreman on the day the citation was issued, and he stated
his prior mine experience (Tr. 225-227). Mr. Ream described
the work that was performed to abate the citation, and it
included the dropping of electrical trolley wires, the use
of 120 feet of pipe, the knocking out of a six-inch solid
block wall with a sledge hammer, and sealing it with cement.
He indicated that two men worked four hours to do the work,
and that the entire job took eight man hours to complete
(Tr. 228-229). After the four inch pipe was installed, he

1033

tested the air with smoke tubes, and he did so over the
batteries of the tractor or scoop which was at the charging
station, as well as over the charger itself, and he indicated
a 60% improvement in the air flow over what it was with the
three inch pipe (Tr. 230).
On cross-examination, Mr. Ream conceded th~t he did not
take a smoke test directly over the battery charging unit,
but took it inside the charging station "up towards the
wall," about ten feet from the wall. He confirmed that he
also used a smoke tube to test the air before he took the
three inch pipe out, and he did so to determine how much
of an improvement he would have with the four inch pipe
(Tr. 232). He confirmed that he was not present on January 18
or 19, 1983, when Mr. Burnatti was at the mine (Tr. 234).
Robert DuBreucq, mine superintendent, testified as to
his background and experience, and he confirmed th~t he and
the mine foreman drafted and approved the mine ventilation
plan (Tr. 2340-236).
Mr. DuBreucq ~tated that after he was informed that the
citation was issued, he instructed Mr. Ream to install a
larger pipe, and he confirmed that charging stations at the
mine were set up identically to the one cited by Mr. Burnatti.
Mr. DuBreucq confirmed that he called state inspector
Frank Behopin on the evening of January 18, 1983, and he
came to the mine the next day to speak to Mr. Burnatti,
but missed him (Tr. 238).
Mr. DuBreucq identified exhibit R-1 as a State of
Pennyslvania memorandum dated June 13, 1978, and he explained
the interpretation concerning the location of charging units
as follows (Tr. 239-241):
Q.

Do you know who Walter J. Vicinelly is?

A.

Director of Deep Mine Safety.

Q.

That's for the State of Pennsylvania?

A.

Yes.

Q.

This memo is dated June 13, 1978?

A.

Yes.

Q. Now, I direct your attention to the second
page of this. Well, prior to going any further,
I would move for Respondent's Exhibit 1 into
evidence.
I think the relevance has been shown
that it was handed to him by the state inspector
as a body, and the interpretation of state law.

1034

Q. 6n the second page of this, the paragraph
that is underlined here, "accordingly, whenever the charging battery in the chargers
are ventilated by the same split of air, the
air must pass first over the charger, and
then over the batteries before entering the
return air." Now, that document doesn't say
that they have to be as far apart as possible,
or that they have to be at the beginning, at
the entrance to the crosscut. Did Mr. Behopin
discuss that with you at all, as to-A. No, his interpretation of this, and the
prior, according to what I'm told anyway, the
prior state inspector of '78, their interpretation
was, you put the charger out on the corner, the
batteries as far back the wall as possible. The
more you maximize the distance between the two,
the less likely you ever have a problem of the
charger igniting gasses off the battery.

Q. Did Mr. Behopin, on January 19th, tell you
what position he would take on the moving of
the charging unit?
A.
He said he didn't want it moved. And, that
he would talk to the federal people about it.
Q.
Did Mr. Behopin say that he would take any
action if you did move?
A. He said it was the old cop routine again,
you know, he don't want it moved and that's it.
But, he will, you know, Frank is a reasonable
man, and Frank said he would talk to the federal
and get this resolved, you know.
Q.
Do you know whether he talked to Mr. Burnatti
that day?
A. He talked to Burnatti, and other people, what
they said, they never told me.

Q. Now, did there come a time, sometime later,
when Mr. Behopin said that he would permit you
to move the chargers further into the crosscut?
A. This issue here went on for at least two
weeks. And, then again, there was conversation
between the state and MSHA, at least what I'm told,

1035

I don't know directly of them, but, there was
conversations on this daggone thing that we're
on, and about three weeks later, the issue
disappeared. That's how it is.
It isn't that
we radically moved the charger anywhere, or
radically did anything. The issue simply
disappeared.
Mr. DuBreucq stated that prior to Mr.• Burnatti' s
inspection, other MSHA inspectors would check the vent pipe
to determine whether the air was going through the pipe.
This was done by breaking a smoke tube near the pipe, and
no one expected all of the air in the station to vent through
that pipe (Tr. 245).
Inspector Burnatti was recalled by the bench, and he
stated that on January 18, 1983, his notes reflect that no
equipment was in the charging station, but that at the time
the order issued the next day, a Kersey tractor was there
(Tr. 285). He also stated that he was not present when the
respondent was abating the condition, and he explained as
follows (Tr. 287-289):
JUDGE KOUTRAS: Right. So, as far as you
were concerned, since they still didn't have
the-- and the broke some additional smoke tubes,
and you found that they were still having the same
problem, as far as you were concerned they
hadn't achieved compliance?
THE WITNESS:

No.

JUDGE KOUTRAS: And, based on what you saw,
you didn't think that they did very much work
there?
THE WITNESS:

Um-hnun.

Little or none.

JUDGE KOUTRAS: Little or none? Had Mr. Ream
told you, or had you inquired of Mr. Ream, and he
told you that they did four hours, that they dropped
the trolley wire, they did all these things, and
he testified too, would your position be different?
THE WITNESS:
JUDGE KOUTRAS:

No.
Why?

THE WITNESS: Because, I don't feel that's an
honest effort to correct .the condition.

1036

JUDGE KOUTRAS: Well, what else can they do,
as of that point?
THE WITNESS: Well, for one thing, I made
suggestions, you know, I don't want to keep
harping on this charging unit but, as.long
as you continue to let that unit sit there,
okay? There is no way in hell, excuse
the expression, that you're going to gain
compliance.
JUDGE KOUTRAS: Well, that's the whole point
though.
So, you did stress the moving of
the unit?
THE WITNESS:

Oh, yes.

JUDGE KOUTRAS: And, that's why I asked them
why they didn't do it to experiment.
THE WITNESS: I also suggested deflective
canvas, building a wall, they suggested building
a wall across the entire intake entry, which
is ridiculous. But, again, if they want
to do it that way that's their prerogative.
JUDGE KOUTRAS: All right. You heard the
testimony about the swirling. That due to
the location of this place, some of the air
is going to go down the entry, and all of it
is not going to go through the exhaust pipe,
that's true isn't it? And, that's why you issued
the citation?
THE WITNESS: Yes.
Like he testified, like
Mr. Hadden testified, that's standard, that's
true.
JUDGE KOUTRAS: And, your interpretation is
that a hundred percent, that every bit of air
that goes in is used to ventilate the battery
charging station, or the batteries, has to go
out that?
THE WITNESS: Yes, that's my training, CMI
training, that's what it was. The air current
ventilating the charging station must be
directed to the return, and that's the air current.
If it's out there in that turbulence, I can't
help that. That's the air current.

1037

JUDGE KOUTRAS: So, your theory was that that
·was part of the problem stationed where it was,
and had they moved it further .in it wouldn't
be sitting there, is that right?
THE WITNESS:
JUDGE KOUTRAS:
problem?
THE.WITNESS:

That's true.

Possibly.•

Would that cause them. a logistical
I don't know what you mean.

JUDGE KOUTRAS: What I'm saying is, is the
position of the battery charging unit, why does
the operator insist on having it there?
THE WITNESS: Well, their reasoning was due
to the state.
JUDGE KOUTRAS: Forget the state. Does it
make it easier, or more difficult to charge a
piece of equipment? Does it make any difference?
THE WITNESS:
It doesn't matter. The piece of
equipment comes with so many lengths of cable,
to reach the machine, so, it can be positioned
anywhere. And, does it matter? No, I'd say it's
no matter of a convenience for anybody.
Findings and Conclusions
In this case the issue is whether or not the respondent
violated the provisions of cited mandatory standard 30 C.F.R.
§ 75.1105, which states as follows:
Underground transformer stations, batterycharging stations, substations, compressor stations,
shops, and permanent pumps shall be housed in
fireproof structures or areas. Air currents used
to ventilate structures or areas enclosing electrical
installations shall be coursed directly into the
return.
Other underground structures installed in
a coal mine as the Secretary may prescribe shall be
of fireproof construction.
The petitioner's proposal for assessment of civil penalty
seeks a penalty assessmentof $650 for the violation cited in
the section 104(a) Citation No. 2015155, issued by Inspector
Burnatti on January 18, 1983. The subsequent section 104(b)
Order issued by Inspector Burnatti when he found that the cited

1038

conditions -were not abated to his satisfaction is not in issue
in this civil penalty case, and the petitioner does not include
that Order as part of its proposal for assessment of civil
penalty.
However, while the question of timely abatement
and whether or not the inspector abused his discretion in not
extending the abatement time is not directly at issue in this
case, I have taken respondent's abatement efforts into consideration in considering the element of good faith compliance
found in section llO(i) of the Act.
In short, I have considered
this question in the assessment levied by me for the violation
in question.
Fact of violation
In defense of the citation, the respondent argues that
since the three-inch pipe was drawing some air to the return
on January 18, there was no violation. Respondent asserts that
MSHA's interpretation of the second sentence of section 75.1105,
that all air currents used to ventilate areas enclosing a
battery charging station shall be coursed into the return is a
"new" interpretation and contrary to its previous policy which
did not require all air currents to be vented into the return.
According to the-respondent, this prior policy was consistent
with the evidence at hearing that it was not possible to course
all air currents to the return.
Respondent's defense is rejected.
I cannot conclude from
the record here that the respondent has established that MSHA's
policy was that all air need not be coursed into the return.
Simply because other inspectors prior to Mr. Burnatti's inspection saw fit not to utilize smoke tubes to determine where the
air was being coursed is insufficient to establish any such
asserted policy. To the contrary, I find the testimony of
MSHA's witnesses on this issue to be credible, and I accept
their interpretation Qf the standard in this case. The designated language of section 75.1105, requires air currents used
to ventilate such battery charging areas to be coursed directly
into the return.
The languages seems clear to me, and
respondent has not established that the intent of the cited
standard was to permit less than all of the air to be coursed
into the return.
Section 75.1105 requires that air used to ventilate battery
charging stations be directed into the return.
The standard is
clear on its face.
It does not stat~ that only "some of the
air" or "most of the air" must be coursed into the return.
It
simply states "air." The inspector's interpretation is that
all such air must be coursed into the return, and I accept this

1039

as a logical interpretation and application of the standard.
Respondent concedes that all of the air was not coursed into
the return. Further, petitioner has established a prima facie
case by a preponderance of the credible testimony presented
to support the citation, and the respondent has not rebutted
this showing by the petitioner. Accordingly, the citation IS
AFFIRMED.
Although I recognize the respondent's plight in attempting
to pacify certain State mining inspectors who insisted that
the cited battery charging unit not be moved from the location
where the inspector found it, this fact does not excuse the
citation, nor may it serve as an absolute defense to the citation, nor may it serve as an absolute defense to the citation.
However, I have considered this fact as mitigating the respondent's culpability, and I have taken it into consideration in
negligence findings.
Good Faith Compliance
In their posthearing briefs, the parties include the
question of the validity of a section 104(c) Order of Withdrawal,
No. 2015156, issued by Inspector Burnatti on January 19, 1983,
after he found that "little or no effort" was made to abate the
conditions which prompted him to issue his section 104(a)
citation, No. 2015155, on January 18, 1983.
Although the issue of "good faith" compliance is relevant
in this civil penalty case, the validity of the order is not
an issue here.
The question presented is whether or not the
respondent violated section 75.1105, as alleged in the section
104(a) citation, No. 2015155, issued by Inspector Burnatti on
January 18, 1983. MSHA's proposal for assessment of civil
penalty is limited to that citation, and does not include the
order.
In short, I conclude that MSHA is bound by its pleadings, and may not now seek to expand on its civil penalty
proposal by adding the order.
In its posthearing brief, MSHA argues that the respondent
exhibited "bad faith" in abating the citation. MSHA's conclusion in this regard is based on the fact that Inspector Burnatti
issued a section 104(b) withdrawal order. Further, MSHA asserts
that the inspector was never informed of respondent's abatement
efforts, nor was he informed concerning how many hours were
spent on the abatement work, or whether a work stoppage had to
occur in order to work on the abatement.

After observing the witnesses during the hearing, and
upon close examination of all of the testimony in this case, I
am convinced that Inspector Burnatti was chagrined because the
respondent failed to move the cited unit to another location,
and that the respondent initially resisted other recommendations
which he purportedly suggested. For its part, the, respondent
resisted moving the unit because to do so would violate state
law. MSHA concedes that the state law ''is in conflict" with
the Federal standards. Viewed in this context, I cannot conclude that on the facts of this case, respondent made "little
or no effort" to abate the cited conditions.
While it may be true that the respondent should have
conducted more extensive smoke tests once its initial abatement
efforts were completed to insure that all of the air coursing
over the unit was going out of the return, the record here does
support a finding that the respondent did in fact perform work
to achieve compliance.
The record here indicates that the respondent had never
previously been issued a section 104(b) order for failure to
abate any cited conditions in its mine, and this includes a
period of. some seven years during which the mine was inspected.
I am convinced that Inspector Burnatti honestly believed that
simply moving the unit would have achieved compliance. However,
when this move met with resistance, he obviously believed that
"little or no effort" was made by the respondent to achieve
abatement.
However, faced with an obvious conflict with the
state mining inspectors, I cannot conclude that the respondent's
reluctance to initially move the unit to another location
constitutes "little or no effort" to abate.
Shift foreman Korber confirmed that as soon as the battery
charging unit was cited, he pulled the power and tagged the
unit power plug to prevent anyone from using it until the cited
conditions could be corrected. Mr. Korber then immediately his
supervisors who instructed him to obtain the necessary materials
to abate the conditions. A new ventilation pipe was installed,
and a check curtain was installed in an attempt to correct the
cited ventilation problem.
Shift foreman Ream described the work which was performed
in correcting the cited conditions, and this work included the
use of 120 feet of pipe, the knocking out and re-sealing of a
cinder block wall, and the re-arrang1ng of certain wiring. He
testified that it took two men four hours to do this work.

1041

MSHA Inspector Alsop abated the citation on January 20,
1983. Since he did, I assume he was satisfied with the
respondent's abatement efforts, and he confirmed that the UMWA
walkaround representative expressed satisfaction oyer the
respondent's abatement efforts.
In view of the foregoing, I conclude and find that the
violation was abated in good faith, and this is reflected in
the civil penalty assessed by me in this case.
Size of Business and Effect of Civil Penalty on the Respondent's
Ability to Continue in Business.
Based on the stipulations by the parties, I conclude that
the respondent, as a corporate operator, is a large mine
operator. However, its Winber Mine 78 operation is a small-tomedium sized operation.
The parties have stipulated that a reasonable penalty
assessment for the violation in question will not adversely
affect the respondent's ability to continue in business. Since
I believe that the penalty assessed by me for the violation in
question is reasonable, I conclude and find that it will not
adversely affect the respondent's ability to continue in
business.
History of Prior Violations
The parties have stipulated to the respondent's prior
history of violations, and this is recited at pages 2-3 of this
decision.
For an operation of its size, I cannot conclude that
this compliance history warrants any additional increase in the
civil penalty assessed by me for the violation in question.
Negligence
Inspector Burnatti conceded that he found "low negligence"
in connection with the section 104(a) citation, and he explains
his reasons for this finding (Tr. 41). Respondent has established through credible evidence and testimony, which is not
rebutted by the petitioner, that it located the battery charger
in question where it did because a State inspector insisted that
it not be moved from that location.
I have considered this fact
in mitigation of the penalty assessed for the violation. However, I believe that with a little more diligence, including the
use of smoke tubes as a preventive measure, as well as some
experimentation concerning the possible relocation of the
battery charging unit, the respondent may have avoided the MSHA

1042

citation. Accordingly, I conclude and find that the violation
resulted from the respondent's failure to exercise reasonable
care, and that this supports a finding of ordinary negligence.
Gravity
Inspector Burnatti testified that when he first observed
the battery charging unit, he visually inspected it and found
nothing defective. He confirmed that since no equipment was
being charged at that time, no hydrogen gas was present. He
made no tests for the presence of any such gas, and this was
true even when he went back the next day and found a piece of
equipment being charged.
His concern was that in the event of
a fire, the ventilation which caused the air going over the
charging unit to go down the intake rather than the return
would carry smoke to the working section. He then indicated
that even if this were to occur, no "fatal or permanent
disabling" injuries would result because the section had a
second alternative escapeway available for the miners working
in the section.
Respondent's chief electrician Sanders testified that he
visually inspected the battery charging unit the day the
citation issued and found nothing wrong with it. He also
confirmed that he had last inspected that unit on January 3,
and 12, 1983, and found it to be in proper operating condition.
He explained the operation of the unit, and detailed the
functioning of the protective fusing and short circuit fuses
and other devices which are engineered to preclude overheating
and fires.
UMWA walkaround representative Morgatt, who also
serves as the chairman of the mine safety committee, testified
that he was with the inspector when the citation issued, and
that shift foreman Korber immediately tagged out the unit when
informed of the citation. Mr. Morgatt could not recall whether
any equipment was being charged at that time, and he did not
indicate that he observed anything wrong with the unit itself.
After careful consideration of all of the evidence adduced
in this case, I conclude and find that the violation was serious.
In the event of any arcing or sparking during the battery
re-charging procedure, it seems clear to me that any resulting
fire or short circuiting would present the possibility of contaminated air being coursed into the working faces.
Significant and Substantial
I conclude and find that the inspector's finding that the
violation was significant and substantial should be affirmed.
Although I have considered the respondent's arguments concerning

1043

the positioning of the battery charging unit in question, the
fact is that any fire or other incident resulting from all of
the air not being venting into the return would jeopardize the
health and safety of miners on the section and wou1d reasonably
likely result in a hazard to the miners. Accordingly, the
inspector's finding in this regard 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 civil penalty assessment
of $350 is appropriate for the violation in question.
Order
The respondent IS ORDERED to pay a civil penalty assessment
of $350 within thirty (30) days of the date of ~his decision,
and upon receipt of payment by the petitioner, this case is
dismissed.

y~~/??~
~.e?'A~ Koutr~~
·

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)
R. Henry Moore, Esq., Rose, Schmidt, Dixon & Hasley, 900 Oliver
Building, Pittsburgh, PA 15222 (Certified Mail)

1044

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

APR.24 1984

CIVIL PENALTY PROCEEDING
Docket No. WEST 81-261-M
A.C. No. 42-01711-05001

v.
Mt. Pleasant Pit Mine
SUPERIOR ROCK PRODUCTS,
Respondent
DECISION
Appearances:

Robert J. Lesnick, Esq., Office of the Solicitor,
U.S. Department OT Labor, Denver, Colorado,
for Petitioner;
Respondent did not appear.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and Health
Administration, (MSHA), charges respondent with violating various
safety regulations promulgated under the Federal Mine Safety and
Health Act, 30 u.s.c. § 801 et seq., (the "Act").
After notice to the parties,
on September 7, 1983 in Salt Lake
appear at the hearing and further
To Show Cause issued on September

a hearing on the merits was held
City, Utah. Respondent failed to
failed to respond to the Order
9, 1983.

Issues
The issues are whether respondent violated the regulations and,
if so, what penalties are appropriate.
Citation 583694
This citation alleges a violation of Title 30, Code of Federal
Regulations, Section 56.14-6 which provides:
56.14-6 Mandatory. Except when testing
the machinery, guards shall be securely
in place while machinery is being operated.
MSHA's Inspector William W. Wilson has been in the agency's
employ since 1978. His mining experience began with Phelps Dodge
Corporation in 1968 (Tr. 3-5).

1045

On November 21, 1980, witness Wilson inspected respondent's
single bench sand and gravel operation (Tr. 5, 6). Kenneth Allred,
who identified himself as the vice-president and general manager,
stated the mine had been operating since the previous summer (Tr. 6).
The inspector did not know about the' existence of the mine
until he saw it while he was travelling over U. S. Highway No. 89
(Tr. 7).
In viewing the plant, the inspector observed a Caterpillar
generator and a Clarke front-end loader. Generators and loaders of
this type are manufactured in the State of Illinois (Tr. 7).
The inspector wrote this citation because the guard for the
48 inch high shaker pulley and D belt were not in place. This
condition constituted a hazard to workers on the walkway (Tr. 812, Exhibits 1, 2 3). Personnel could be caught on the moving
parts.
There were two, sometimes three, employees on the site
(Tr. 12, 13). The inspector considered this citation and all except
one of the remaining citations to be significant and substantial
(Tr . 13-15) •
Citation 583695
This citation alleges a violation of Title 30, Code of Federal
Regulations, Section 56.14-1, which provides:
Guards
56.14-1 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.
The MSHA inspector took photographs showing that the chain
drive belt (45 inches from the walkway) feeding the shakers and the
D-belt assembly was not guarded. Exhibit 1 shows the highly visible
unguarded condition (Tr. 15, 17). If the two or three employees
were standing on the walkway, they could be caught in the chain
drive and pulley assembly (Tr. 16).
Citation 583697
This citation alleges a violation of Title 30, Code of Federal
Regulations, Section 56.14-1, cited above.
The MSHA inspector testified that the west side of the D belt
assembly underneath the shaker was not guarded (Tr. 17). In addition,
the area was accessible to employees (Tr. 17, Exhibit 3). There

1046

were footprints within 17 inches and the assembly was six to
seven inches above ground level (Tr. 19). In this area and in
the previously cited areas an employee could contact the pinch
points without tripping or lunging (Tr. 19).
Citation 583698
This citation alleges a violation of Title 30, Code of Federal
Regulations, Section 56.12-13(b). The cited section in full provides
as follows:
56.12-13 Mandatory. Permanent splices and
repairs made in power cables, including the
ground conductor ~here provided, shall be:
(a) Mechanically strong with electrical
conductivity as near as possible to that of
the original; (b) Insulated to a degree at
least equal to that of the original, and
sealed to exclude moisture; and (c) Provided
with damage protection as near as possible
to that of the original, including good
bonding to the outer jacket.
Inspector Wilson observed and photographed certain uninsulated
electrical wires at the worksite. Bare metal was showing in more
than one place (Tr. 20-24, Exhibits 4-9). This condition was
adjacent to a travelled walkway (Tr. 24). The upper wire on
Exhibit 8 was 53 inches above the ground (Tr. 24).
Citation 583699
This citation alleges a violation of Title 30, Code of Federal
Regulations, Section 56.4-24(b), which provides:
56.4-24 Mandatory. Fire extinguishers
and fire suppression devices shall be:
(b} Adequate in number and size for the
particular fire hazard involved.
Inspector Wilson could not locate any fire extinguishers on
the property (Tr. 26, 27). Any fire would not be controlled.
(Tr. 26) .
Inspector Wilson would not consider this violation as significant
and substantial if he was writing the citation on the day of the
hearing (Tr. 27).

Citation 583700
This citation alleges a violation of Title 30, Code of Federal
Regulations, Section 56.26-1, which provides:
56.26-1 Mandatory. The owner, operator,
or person in charge of any metal and nonmetal mine shall notify the nearest Mining
Enforcement in Safety Administration Metal
and Nonmetal Mine Health and Safety subdistrict office before starting operations,
of the approximate or actual date mine
operation will commence. The notification
shall include the mine name, location, the
company name, mailing address, person in
charge,. and whether operations will be
continuous or intermittent.
When any mine is closed, the person in
charge shall notify the nearest subdistrict off ice as provided above and
indicate whether the closure is temporary
or permanent.
According to Inspector Wilson, company representative Allred
stated the company had been in operation and the inspector observed
that.himself. Allred did not claim the company had registered
under another name.
In fact, Allred pleaded ignorance of MSHA's
regulation (Tr. 27, 28).
Discussion
The evidence offered in connection with each citation
establish a violation of the relevant regulation. Accordingly,
each citation should be affirmed.
I further rely on the inspector's judgment and affirm the
significant and substantial assertion as to all of the citations
except number 583699, (fire extinguishers).
In connection with
this citation, the inspector indicated at the hearing that he
did not consider that violation to be significant and substantial.
Accordingly, the allegations of significant and substantial
as to Citation 583699 are stricken.
Civil Penalties
The six criteria for assessing a civil penalty is set forth
in 3 O U.S. C. § 8 2 0 ( i) •

1048

The Secretary's Office of Assessments proposes no penalty
points for respondent's size or history of previous violation.
Negligence points are assessed for all citations except number
583699 (fire extinguishers). The assessment points proposed for
gravity appear to be in order.
The Office of Assessment failed to credit respondent with any
good faith, but each citation shows respondent abated the violative
condition. By virtue of that fact, the Secretary's proposed assessments appear to be excessive.
The proposed assessments should be modified as follows:
Original
Proposed

Citation No.
583694
583695
583697
583698
583699
583700

(guards not secured)
(unguarded belt)
(unguarded D belt)
(splices not insulated)
(fire extinguishers)
(failure to report)

$

44
44
44
34

Disposition

$

25
25
25
20
6
6

8

8

. ORDER
Based on the facts and conclusions of law recited herein, I
affirm the following citations and assess the penalties as noted
thereafter:
1.

Penalt~

Citation No.
583694
583695
583697
583698
583699
583700

$

25
25
25
20
6
6

2. Respondent is ordered to pay the sum of $107 within
40 days of the date of this order.

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)
Mr. William Curl, President, Superior Rock Products Company,
440 West 700 South, Mt. Pleasant, Utah 84647 (Certified Mail)
/ot

1049

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),
Complainant

APR 261984

DISCRIMINATION" PROCEEDING
Docket No. SE 80-31-DM

v.

.

METRIC CONSTRUCTORS, INC.,
Respondent

Florida Mining & Concrete Co.

DECISION ON REMAND
Judge Koutras

Before:

Statement of the Proceeding
On February 29, 1984, the Commission issued its decision
in this matter and remanded the case for additional findings
concerning certain remedial aspects of the case. These
additional matters are discussed at pages eight and nine of
the Commission's decision served on the parties, and they
include the question of payment of overtime as part of the
back pay award, and the question of payment of appropriate
expenses incurred by the complainants for their attendance
at the hearings held before the Commission Judge who decided
the cas.e.
In response to my Order of March 7, 1984, the parties
have stipulated and agreed that the relief due the complainants,
as encompassed by the Commission's decision and remand, has
been settled by mutual agreement of the parties without the
necessity of additional hearings or discovery.
In this regard,
the parties have filed a joint stipulation whereby they
stipulate that the amounts of back pay, interest and hearing
expenses that would be owed by the respondent to the
complainants under the Commission's decision of February 29,
1984, are as follows:
Name
Joe E. Brown
James w. Parker
John w. Parker
David Mixon
Johnny Denmark
James McGuire
Van T. McGuire

Back Wa9:es
$2736.75
-03823.25
3823.25
3823.25
3223.25
3836.25
$21,266.00

l{J50

Interest

Expenses

$1642.05

$72.00

2293.95
2293.95
2293.95
1933.95
2301.75
$12,759.60

72.00

-o-

-o-o-

-072.00
48.00
$264.00

In .support of their joint stipulation, the parties
advise that the back wage figures include amounts representing
overtime compensation computed at one and one-half times the
basic hourly wage rate for every hour that would"have been
worked over forty (40). per week. The expenses represent
the travel expenses incurred by the complainants in attending
the three days of hearings in Tallahassee, Florida, away
from their homes in Perry, Florida, which were the only
expenses incurred by the complainants in attending the
hearings.
ORDER
Respondent IS ORDERED.to pay the compensation listed
above, as agreed to by the parties, and payment is to be made
within thirty (30) days of the date of this decision and order.
-

.,,,

?.z:.,~ ~-/~
L / -#----·
_;.;;~~~outras
,/

Administrative Law Judge

Distribution:
William H. Berger, Esq., Office of the Solicitor, U.S. Department of Labor, 1371 Peachtree St., NE, Atlanta, GA 30367
(Certified Mail)
Barry F. Wisor, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified
Mail)
J. Dickson Phill'ips III, Esq., Fleming, Robinson, Bradshaw &
Hinson, P.A., 2500 First Union Plaza, Charlotte, NC 28282
(Certified Mail)

/ejp

1051

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

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

APR 2 61984

CIVIL PENALTY PROCEEDING
Docket No. SE 84-4-M
A.C. No. 08-00729-05502

v.
Belcher Mine
BELCHER MINE, INC.,
Respondent
DECISION
Appearances:

K. S. Welsch, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia,
for Petitioner;
Mr. Warren C. Hunt, President, Belcher Mine,
Inc., Aripeka, Florida, for Respondent.

Before:

Judge Kennedy

This matter came on for an evidentiary hearing in
St. Petersburg, Florida on Thursday, February 16, 1984.
The proposal for penalty was based on a closure order that
charged the gantry rig supporting the conveyor belt on an
aggregate crusher was in imminent danger of collapse.
{See
PX-3 attached.)
The penalty proposed was $750.
The Unvarnished Facts
On the evening of Monday, August 1, 1983, an MSHA
inspector, Alonzo Weaver, was present at the Belcher Mine
for the purpose of making an illumination inspection. While
he was waiting for darkness, he observed a bulldozer being
used to position and reposition a Pettibone Universal crusher
that was operating a dragline to extract and crush gravel
from a pit located on the edge of the Gulf of Mexico. He
particularly noticed that the dozer had a bad clutch so that
whenever i t acceierated to push against the crusher's draw
bar it would buck and jerk causing the tall gantry rig on
the crusher and conveyor belt to sway and vibrate. The
inspector apparently called these circumstances to the
attention of Mr. Miles, the operator's foreman. Miles
asked the inspector to accompany him to the crusher. There
the inspector observed that the two six-inch steel channels
that supported the gantry rig were anchored through a pinion

1052

but that the "eyes" had rusted through to the point that
they provided little or no support for the gantry and the
five to eight ton conveyor belt.
(See PX-4 attached.)
The inspector immediately recognized the hazard this
condition presented to both the crusher operator who worked
immediately under and around the gantry and the dozer operator
who drove the dozer around and under the conveyor belt. The
inspector asked the foreman what he knew about the condition
and the foreman told him the broken and fractured anchor had
been in that condition for a week or more. Miles also said
he felt the condition was so hazardous he was afraid to go
near it. When the inspector asked Miles why the operator
was not using the spare crusher, Miles said it was "down"
and that he had been told to use the Universal to keep up
with demand for aggregate production.
Miles asked the inspector to treat their conversation
in confidence as he feared for his job if the operator
found out that he had reported the violation. The inspector
told him he would be protected and then issued an imminent
danger closure order.
At the closeout conference a few days later the superintendent, Bob King, argued the condition was of recent
origin and that in any event it was not hazardous because
the dozer operator was protected by roll bars. The inspector
did not agree but in the administration's "spirit of
cooperation" reduced the gravity by limiting the finding of
exposure to one miner, and the seriousness to lost workdays
or restricted duty instead of death or a disabling injury
as required by a finding of imminent danger. 1/
The Tarnished Hearing
At the hearing, the inspector changed his mind and
testified the condition could have resulted in death or
a disabling injury to either the crusher or dozer operators.
Pursuant to departmental policy, however, the inspector
repeatedly evaded my questions about what Miles said about
the hazardous condition. Weaver finally testified that "all
l/Inspectors are so torn between their sworn duty to enforce
the law and the administration's policy of "cooperative
enforcement" that it is well neigh impossible for them to
reconcile their findings of violation with their attempts
to trivialize gravity and culpability. Too often the law's
policy of deterrence has been undermined by the administration's policy of appeasement.

1053

Miles said was that he would shut the crusher down and contact
Mr. King~
That was all he said.
I don't recall whether he
said anything about how long it had been there." This was
not true.
The solicitor made no attempt to cor~ect the false
testimony.
On cross examination, the operator, who was not represented by counsel, succeeded in establishing that the inspector
had in all probability examined the crusher in question about
two weeks earlier but had not cited the condition he found
on August 1. Just before the noon break, the operator also
announced he would produce two witnesses, Miles, the foreman,
and Bob King, the superintendent who would testify that the
inspector was wrong in stating that "in his opinion" the
condition had existed for several weeks.
To clarify confusion over how many crushers were at
the site, the trial judge directed the solicitor to furnish
the operator and the judge with copies of the inspector's
contemporaneous notes.
The inspector had represented that
these notes would disclose the serial numbers for three
crushers, not two, as claimed by the operator.' As it turned
out, the notes of the earlier inspection on July 14 were
not available--counsel said they were in Birmingham, Alabama.
Consequently, the solicitor copied and furnished only the
notes of the August 1, 1983 inspection together with the
inspector's "Willful Violation Review" memorandum.
At the time the solicitor offered to furnish the
August 1 notes he knew Mr. Miles was to be a witness for
the operator on the issues of gravity and prior knowledge •
. He also knew that Mr. Weaver's notes stated that "an employee"
of the operator told him on August 1 that the condition on
the anchor had "Been that way for a week or more"; that
the employee was "Scared to get near it"; and that the only
employee the inspector had talked to on August 1 about the
anchor was Mr. Miles. But again the solicitor made no
attempt to correct the inspector's false testimony.
When the hearing resumed after the noon break, the
trial judge asked Mr. Weaver who the employee referred to
in his notes was.
The inspector and the solicitor simultaneously "objected" to the ~uestion one on the ground it
was "hearsay" and the other invoking the "informer privilege."
When both the solicitor and the inspector admitted the
"employee" referred to was in the courtroom and had been
identified as one of the two individuals who would testify
on behalf of the operator the objections were overruled.

1054

In elaboration of his position, the solicitor indicated
that it is the Secretary's policy to assert the informer
privilege even if that results in suppressing evidence
relevant and material to the gravity of the charge and to
the credibility of an operator's defense.
I fotlnd this the
most bizarre twist on the policy of "cooperative enforcement" yet encountered.
I have many times noted the commonality of interest between the so-called prosecution and
defense in these cases but never before realized the informer
privilege was being used to suppress evidence necessary to a
fair determination of the degree of culpability of an operator.
I find it hard to accept that the solicitor is so
legally obtuse and ethically confused as to believe a grant
of confidentiality to an informer takes precedence over a
witness's solemn oath to tell the truth. Or that the
informer privilege justifies palming off perjured testimony
in an adjudicatory proceeding.
I make these observations and findings because I am
disturbed, as I believe the Commission will be disturbed,
to learn of the extremes to which the solicitor may go in
turning a deaf ear to false and misleading testimony.
It
may be that in the eyes of the solicitor there is no conflict between "cooperative enforcement" and "vigorous
enforcement." It may also be that "cooperation pays higher
dividends than confrontation" but when the "dividend" is
death or a disabling injury the law demands an honest
accounting. Cutting corners with the truth through a cynical
assertion of the informer privilege is sharp practice. If
countenanced through some misguided plea to "live and let
live" miners will instead die and public confidence in the
fair administration of justice will be sharply diminished.
I urge the solicitor to abandon the view that "truth is a
lie that hasn't been found out."
It is hornbook law that the informer privilege may not
be used to suppress evidence if it appears either from
evidence in the case or otherwise that an informer may be
able to give testimony necessary to a fair determination of
the guilt or innocence of a party. The interest in protection against reprisal never outweighs the public interest in
a full and true disclosure of the facts in a Commission
proceeding. Section 105(c) provides specific protection
against any attempt by an operator to retaliate against an
informer witness.
The solicitor knew or should have known of the procedures available under the law to bring his perceived dilemma

1055

to the in camera attention of the trial judge. The issue
.was notli'ovel and the method for its resolution is clearly
set forth in Supreme Court Standard SlO(c) (2) to the Federal
Rules of Evidence. The solicitor can hardly claim ignorance
of the law as a defense to his abusive use of the· informer
privilege.
For these reasons I must condemn in the strongest terms
possible the subornation that occurred and serve warning
that if it happens again I shall feel compelled to refer the
matter to the Commission and the criminal division for such
disciplinary action as they deem appropriate.
The Operator's Rectitude
Whatever the ethical astigmatism of the prosecution,
respondent's president, Mr. Warren C. Hunt, quickly ascertained
that Mr. Miles was trying to carry water on both shoulders.
Whereupon he withdrew his defense, declined to present his
witnesses and agreed to settle the matter for the full
amount of the penalty proposed. Upon motion duly made, an
· order approving settlement was entered from the bench.
The premises considered, therefore, it is ORDERED that
the decision to approve settleme t be, and hereby is, CONFIMRED
and the matter DISMISSED.

oseph B. Kennedy
Administrative Law
Attachment
Distribution:
Ken S. Welsch, Esq., Office of the Solicitor, U.S. Department
of Labor, 1371 Peachtree St., N.W., Room 339, Atlanta, GA
30367 (Certified Mail)
Mr. Warren c. Hunt, President, Belcher Mine, Inc., P.O. Box
86, Aripeka, FL 33502 (Certified Mail)

/ejp

1056

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1058

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

GEORGE A. JACK,
Complainant

APR 26 1984

DISCRIMINATION PROCEEDING

..
.
.

v.

.
MID-CONTINENT RESOURCES,
INC.
Respondent

Docket No. WEST 83-72-D
MSHA Case No. DENV 83-13
Coal Basin No. 5 Mine

DECISION
Appearances:

George A. Jack, Indiana, Pennsylvania, pro se:
Edward Mulhall, Jr., Esq., Delaney & Balcomb
Gle~wood Springs, Colorado, for Respondent

Before:

Judge Carlson

This case arose upon a complaint of discriminatory discharge filed ·by George A. Jack with the Secretary of Labor under
section 105(c)(2) of the Federal Mine Safety and Health Act of
1977, 30 u.s~c. § 801, et seg. Cthe Act). The Secretary, aft·er
investigation, declined to prosecute the complaint. Mr. Jack
then brought this proceeding directly before this Commission
under section 105(c)C3> of the Act.
Mr. Jack alleges that he was discharged by Mid-Continent
Resources (Mid-Continent) in violation of section 105Cc)(l) of
the Act. 1/ Specifically, he complained that he was fired
1/

Section 105Cc)(l) provides:

No person shall· discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against
or otherwise interfere with the exercise of the statutory rights
of any miner, representative of 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 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 miner, representative of miners or applicant
for employment has instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about
to testify in any proceeding, or because of the exercise by such
miner, representative of miners or applicant for employment on
behalf of himself or others of any statutory right afforded by
this Act.

105B

from his job as an underground miner because he reported that
he had been injured in an accident. He seeks reinstatement and
back pay.
A hearing on the merits was held in Denver, Colorado on
February 3, 1984. Complainant appeared pro se; respondent
appeared through counsel. Both parties waived post-hearing
briefs.
ISSUES
The fundamental questions to be decided are:
(1) Whether the proceeding must be dismissed
because the miner's original complaint was filed with
the Mine Safety and Health Administration after the
statutory time period for filing had elapsed.
(2) Whether, if a valid complaint was filed,
the miner was discharged by the mine operator in violation of section 105(c)(l) of the Act, as alleged.
(3) What relief the miner is entitled to receive
if the discharge was unlawful.
TIMELINESS OF THE COMPLAINT
Section 105(c)(2) of the Act provides that an aggrieved
miner has sixty days after a discriminatory event in which he
"may" file his complaint with the Secretary of Labor. Mr. Jack
was discharged on June 17, 1982. Mid-Continent urges that the
present proceeding is not properly before the Commission
because the miner failed to make his original complaint.to the
Secretary until March of 1983. The record shows that Mr. Jack
signed his complaint on March 9, 1983 (respondent's exhibit 5).
The form was received by the Denver, Colorado office of the
Secretary's Mine Safety and Health Administration on March 15,
1983. Since these dates are not in dispute, it is clear that
the complaint was filed long after the close of the sixty day
period mentioned in the statute.
Relying on the Act's legislative history, the Commission
has held that the sixty day time limit is not jurisdictional.
The Congressional purpose was to prevent stale claims, but
late filings by a miner may be excused "under justifiable
circumstances." Joseph w. Herman v. IMCO Services, 4 FMSHRC
2135 (1982). Questions of timeliness must thus be decided on a

1060

"case by case basis, taking into account the unique circumstances of each situation." David Hollis v. Consolidation Coal
Company,
FMSHRC
, Docket No. WEVA 81-480-D (January
9, 1984).
In the present case I find the complainant's delinquency
excusable.
The evidence shows that Mr. Jack moved from Colorado to
Pennsylyania within a week after his discharge. His testimony
revealed a good deal of genuine "confusion between his workman •.. s.
compensation claim and his mine safety complaint. He was of
the apparent belief that forms filed with the Colorado
workman's compensation authority, for example, were somehow
essential to the filing of complaint under the mine Act; and
he had some difficulty in securing copies of the compensation
form. Because of his move, he also had difficulty in determining which MSHA off ice should handle his complaint. The
complainant's testimony on these matters is generally credible.
I am convinced that Mr. Jack misunderstood his rights under
the Act and was confused about the proper manner in which to
proceed. I also note that no evidence indicates that
Mid-Continent was prejudiced by the late filing.
REVIEW OF THE EVIDENCE
The undisputed evidence shows that complainant was interviewed by Mid-Continent for employment in its underground coal
mine on June 7, 1982. He came to the mine with a letter of
recommendation from an official in a Pennsylvania mine where he
formerly worked. Mid-Continent hired him as an experienced
miner. He spent two days, June 10 and 11, 1982 in orientation
and training on the surface.
The complainant did not report for work on his next
scheduled days, June 14 and 15, 1982, a Monday and Tuesday.
He did report on June 16. He worked as part of a five man
crew removing cable and doing other tasks preparatory to
closing down a part of the mine.
According to Mr. Jack's account, which Mid-Continent
does not dispute, in mid-afternoon he was laying boards under
the tires of a diesel-powered buggy as it attempted to cross
a bridge. The crew foreman was driving; the remaining four
members of the crew were on the bridge. As the buggy moved
across, a part of the bridge collapsed and Mr. Jack fell
several feet. He complained of a back injury and was instructed· by the foreman to walk to the surface. He did so.

1061

On the following day he did not go to the mine. He
called the personnel off ice and spoke ultimately to Marvin
Meyers, the personnel director. Mr. Jack told Meyers that he
was absent because he had been injured in the accident the
previous day; Mr. Meyers told Mr. Jack that he was terminated.
Later that day, Meyers sent a letter informing Jack that he
was discharged.
Beyond those few facts, witnesses for the parties agreed
on virtually nothing. Complainant maintains that he was fired
because he "reported a mine accident," the bridge collapse.
He also claims that during the course of the day he also voiced
complaints about unsafe practices or conduct. According to his
testimony, he twice complained to the crew foreman when the
vehicle used by the crew was allowed to "drift back" while
miners were behind it. He also complained, he said, that a
cable he and the foreman were taking up was energized at 32,000
volts. Further, Mr. Jack insisted that both management and his
fellow miners were biased against him because he was hired
during a hiring freeze when the operator had made known that
operations were to be cut back.
According to Mr. Jack, he was unable to work on June 14th
and 15th because of altitude sickness. He claimed he had not
adjusted to the 10,000 foot altitude of the mine. Since he
had been in Colorado for less than a week, he said he knew no
physicians. He visited a chiropractor who gave him a "disability certificate" which he in turn gave to Wally Wareham,
the mine superintendent, on June 16th when he returned to work.
The chiropractor's statement indicated that Mr. Jack was incapacitated on June 14th and 15th with "stomach upset and back
pain" (Respondent's exhibit 2). Mr. Jack also maintain_ed that
he telephoned the mine on both the 14th anbd 15th to report his
inability to work. He also testified that Grant Brady, safety
director for Mid-Continent, had informed him that he was
entitled to miss two days of work in six months with a doctor's
excuse.
Mid-Continent provided a markedly different version of
the circumstances leading to dismissal. Nannette c. Grys,
the company's personnel clerk at the time in question,
testified that she helped ~r. Jack fill out all his personnel
papers on June 9, 1982. She claims that the complainant was
"definitely intoxicated" at that time, and that she reported
that impression to Marvin Meyers, the personnel director.

1062

During his own testimony, Mr. Meyers stated that he put
the complainant on the payroll only because he had been
instructed to do so by Mid-Continent's president. Mr. Meyers
stated, however, that the information from Ms. Grys "alerted"
him to watch Mr. Jack's work attendance.
The implemented labor agreement with Mid-Continent's
miners, he testified, places newly hired employees in probationary status for their first 60 days of work, (Article 11.2,
respondent's exhibit 3). Under Article 6.2.9., according to
Meyers, probationary employees could be discharged for any
cause deemed sufficient by the company. That article is one of
a series specifying causes for discharge. The text confirms
his testimony. It permits discharge for:
Any cause determined sufficient by
the company as to an employee on
probationary status within sixty
(60) days of work by the employee
after his employment.
Mr. Meyers agreed generally with the complainant's
account of the telephone conversation between the two of them
on the morning of June 17. Meyers insisted, however, that he
had decided to discharge Jack before the call was received.
He made the decision because the miner had missed his first
two days of actual work in the mine, and had not called in on
those days as company policy required. Despite the company's
power to dismiss probationary employees for any cause, Meyers
indicated that he may not have dismissed Mr. Jack had the miner
called in to explain his absence.
Mr. Meyers further declared that he knew nothing of
the accident on June 16th until Jack mentioned it during the
telephone call on the following day. Moreover, he knew nothing
of any safety complaints at the time he made his decision to
fire the miner. He had heard nothing of the complaint about
the vehicle backing incident or the electrical cable incident
until he heard complainant's testimony at the trial, he
testified.
Mr. Meyers knew that Mr. Jack had not called on June 14 or
June 15 because all such telephone reports are tape recorded
when made, and are then noted in a log by the mine clerk. The
log, Mr. Meyers testified, contained no entries for calls on
June 14 or 15.
As to what happened after Mr. Meyers told Mr. Jack that
he was fired, there is little dispute. Meyers sent Jack a
letter formally advising him that he was terminated for "being
absent from work without good cause" (respondent's exhibit 1).
Mr. Jack returned his equipment and supplied a company paramedic with information for state workman's compensation claim.

1063

On August 26, 1983 a hearing officer for the Workmen's Compensation Division of the Colorado Division of Labor issued an
order declaring that Mr. Jack was entitled to total temporary
disability from June 17, 1982 (complainant's exhibit 1). Mr.
Jack returned to Pennsylvania shortly after his discharge by
Mid-Continent.
A miner alleging a discriminatory discharge must prove by
a preponderance of the evidence Cl) that he engaged in "protected
activity" and (2) that the discharge was motivated at least in
part by that protected activity. Secretary on behalf of Pasula
v. Consolidation Coal Corp., 2 FMSHRC 2786 (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 Company, 3 FMSHRC 803 (1981). It is
further essential that a miner ·seeking the protection of the Act
have actually communicated a complaint concerning safety to a
representative of the operator. Dunmire v. Northern Coal Co.,
4 FMSHRC 126 (1982).
Complainant in the present case maintains that in his call
to the personnel office on June 17, 1984 he stated that he was
unable to report to work because of his injury suffered the
previous day. There is no evidence that Mr. Jack gave voice to
any specific or general concern relating to safety or health.
The chief purposes of his call, rather plainly, were to explain
why he would not be at work and to protect his rights to compensation for a job-connected injury. Similarly, it is not clear
that he articulated any express safety complaint to the foreman
who was present when he fell from the bridge, receiving his
injury. According to his own account, the only conversation
appeared to relate to whether he should go to the surface and how
he should get there. The question thus raised is whether the
reporting of an accident and resulting injury by the injured
miner may be construed as a safety-related complaint. The
general answer must be in the affirmative. Cf. Mooney v. Sohio
Western Mining Co.,
FMSHRC
(1984), Docket No.
CENT 81-157-DM, March 7, 1984; Moses v. Whitley Development
Corp., 4 FMSHRC 1475 (1982). Under most circumstances an injury
report from a miner hurt in a mine accident is, by its very
nature, a safety complaint. Mr. Jack's telephone conversation
with Mr. Meyers on June 17 involved a protected act.
In the present case we must also consider whether Mr. Jack's
comments concerning the "backing" incident and the energized
cable incident constituted protected activity.
I must conclude
that they did.
In both instances he made complaints within the
hearing of his foreman or leadman about safety concerns. The
problem, of course, is that the miner's formal pro~ complaint
filed in this proceeding did not raise these specific occurrences.
I hold, however, that the issues raised by these incidents were

1064

tried by the consent of the parties and I therefore amend the
pleadings to conform to the evidence under Rule 15Cb) of the
Federal Rules of Civil Procedure. 2/ Mr. Jack's complaints
about the unsafe backing of the vehicle and the handling of an
energized cable were manifestly protected activity.
Upon the entire record I conclude that the complainant
failed to establish the second essential element of his proofs:
that his protected activities furnished any part of the motive
for his discharge.
The weight of the evidence establishes that despite Mr.
Jack's having engaged in protected activity, the decision to
dismiss him was based entirely upon his unprotected activity.
In this regard, I found Mr. Meyers I testimony' wholly convincing·.
His explanation of his motives emerg~d in a straightforward way.
It was plain that he would not have hired Mr. Jack in the first
place, had he had his way, because the mine was at that time
reducing, not increasing, its work force. The additional
information that the new miner was intoxicated when he filled out
his employment papers did nothing to enhance Mr. Meyers' views on
the wisdom of the hire. 3/ At that point, understandably, he
became "alert" to the possibility that Mr. Jack would present a
problem with absenteeism. Given this background, one can easily
appreciate Mr. Meyers' reaction when he learned that the miner
had missed his first two days' work underground.: One can
believe, in other words, that Meyers had decided to fire Mr. Jack
before the latter's telephone call on June 17 and that the call
merely accelerated the pronouncement of that decision.
Coincidentally, I believe Mr. Meyers assertion that at
the time he formed his resolve to dismiss the complainant he
had neither knowledge of the accident of June 16, nor knowledge
of any other safety complaint. Thus, there was no connection
between the miner's protected activity and the decision to discharge. Such a nexus .is essential to a showing of a discriminatory discharge. Where a mine official who makes a decision to
fire a miner has no prior knowledge that the miner made a safety
or health complaint, it is axiomatic that protected activity
cannot have furnished any part of the motive for the adverse
action.
2/ Mr. Jack's testimony on these matters was brought out under
cross-examination and was at no time challenged as being beyond
the scope of the pleadings.
}/ Mr. Jack denied that he was intoxicated. At the time of her
testimony, however, Mrs. Grys had long since ceased to work for
Mid-Continent and had moved to Colorado Springs (Tr. 94-96). I
believed her testimony because, among other reasons, she had no
discernible stake in the outcome of the case. Besides, even if
she had been mistaken in her belief that the miner was intoxicated, I have no doubt that Mr. Meyers took her report at face
value. It is Mr. Meyers' state of mind that is important here.

1065

Some other elements in this case deserve passing mention.
Mr. Jack's medical excuse from a chiropractor enjoyed some
evidentiary prominence at the hearing. It did not, however,
figure significantly in my decision. The evidence shows that
Mr. Meyers did not see the excuse until after his June 17, 1984
declaration that Mr. Jack was dismissed. Whether Mr. Jack gave
it to the mine superintendent on June 16 when he reported back to
work is of little importance, as is Mid-Continent's emphasis on
the fact that the document bears a date of June 17, a day after
the complainant allegedly gave it to the company. This is so
because the persuasive evidence shows that Mr. Meyers decided to
fire Mr. Jack on the basis that the miner failed to give telephone notice on June -14 and June -15, as required by company
rules, that he would not be at work.
I must also make an obserNation concerning Mid-Continent's
work rules as set out in respondent's exhibit 3. This "Proposed
Labor Agreement," was implemented on August 5, 1981. The
evidence shows the provisions contained in the document were
originally conceived as a part of the collective bargaining
process when the company's employees were represented by a labor
union. They were ultimately put in effect, however, on an
essentially unilateral basis by management after the work force
had determined to dispense with union representation. Mr. Meyers
maintains that Mr. Jack was terminated as a probationary employee
under Article 6.2.9 which declares that probationary employees
may be discharged for "any cause determined sufficient by the
company." He also testified that in the normal course of his
interviews of a new employee he routinely gives the employee a
copy of the work rules. Mr. Jack, however, insisted that he had
never received a copy of the rules booklet, and therefore
suggests that he could not properly be discharged under its
provisions.
First, I think it unlikely that Mr. Meyers did not give the
miner a copy of the booklet. Second, even if he neglected to do
so, that omission would not vary the outcome of this proceeding.
This Commission has no power to determine whether an adverse
employment action is fair or unfair except to the extent that
unfairness may in some way relate to a protected activity. Here
it is plain that Mr. Meyers acted upon a good faith assumption
that Mr. Jack knew that absentees were to give telephone notice
of their absences in advance of the beginning of the work shift,
and knew that probationary employees were subject to dismissal
in the company's discretion.
Thus, even if Mr. Jack did not
receive the booklet, it cannot be said that that omission
affected Mr. Meyer's motive in effecting the discharge.
It does
not, in other words, give rise to any credible inference that
Meyers' real reason for the firing was based in any part on a
safety complaint.

106B

CONCLUSIONS OF LAW
Upon the entire record and upon the factual determinations
embodied in the narrative portion of this decision, the following
conclusions of law are made:
C1)

That this Commission has jurisdiction to h..ear and
decide this matter.

(2)

That the complainant engaged in protected activity
within the meaning of the Act at the times pertinent
herein.

(3)

That complainant's engagement in such protected
activity did not furnish any part of the motive
of respondent Mid-Continent in discharging
complainant from his 'employment as a miner.

(4)

That the complainant was not discharged for
engaging in protected activity under Section
105Cc) of the Act.
ORDER

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

John A. Carlson
Administrative Law Judge

Distribution:
Mr. George A. Jack, 150 North Seventh Street, Indiana,
Pennsylvania 15701 (Certified Mail)
Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.C., 818 Colorado
Avenue,· Drawer 790, Glenwood Springs, Colorado 81602 (Certified
Mail)

/ot

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

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

APR 2 'l ~984

CONTEST OF ORDER/CITATION
Docket No. WEST 81-264-RM
Order No. 577585; 4/7/81

.
:
:

Docket No. WEST 81-265-RM
Order No. 577586; 4/7/81
Docket No. WEST 82-15-RM
Order No. 578606; 9/9/81
Docket No. WEST 82-60-RM
Citation No. 578884; 11/16/81
Docket No. WEST 82-61-RM
Order No. 578885; 11/16/81

:

Docket No. WEST 82-62-RM
Citation No. 578907; 11/18/81
Docket No. WEST 82-121-RM
Order No. 578961; 2/10/82
Docket No. WEST 82-122-RM
Order No. 578880; 2/10/82
Docket No. WEST 82-123-RM
Order No. 578879; 2/10/82

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

.
.

FMC CORPORATION,
Respondent
:

FMC Mine
CIVIL PENALTY PROCEEDINGS
Docket No. WEST 82-11-M
A.C. No. 48-00152-05050 V
Docket No. WEST 82-64-M
A.C. No. 48-00152-05054 V
Docket No. WEST 82-134-M
A.C. No. 48-00152-05056
Docket No. WEST 82-152-M
A.C. No. 48-00152-05058 V
Docket No. WEST 83-10-M(A)
A.C. No. 48-00152-05504
FMC Mine

1068

DECISION APPROVING SETTLEMENT
Before:

Judge Kennedy

These matters came on for a prehearing/settlement confer~
ence on April 10, 1984. As a result of the scrutiny and
analysis afforded at this hearing, the Secretary agreed to
modification of the section 104(d) violations to section 104(a)
citations and the operator agreed to a substantial increase
in the penalties proposed for eight of the eleven charges.
As to the remaining three, the operator requested time to
submit its justification for a lesser increase in the amount
of the penalty than that proposed by the trial judge.
The matter is now before me on the operator's motion to
approve settlement which includes its justification for
increasing the penalties on the three excepted violations
from $500 to $1,000 instead of $2,000. The Secretary recommends
acceptance of the operator's circumstances in mitigation of the
trial judge's initial proposal.
Based on a further independent evaluation of these matters,
I find the settlement now proposed by both parties is in accord
with the purposes and policy of the Act. Accordingly, it is
ORDERED that the motion be, and hereby is, GRANTED.
It is FURTHER ORDERED that:
1.
The following section 104(d) Citations/Orders be,
and hereby are, modified to section 104(a) citations:
Number
577585
577586
578606
578911
578885
578967
578961
578880
578979

1069

2.
The penalties agreed upon be allocated among the
violations charged as follows:
Number

Amount

577585
577586
578606
578911
578884
578885
578967
578907
578961
578880
578879

$1,000
1,000
1,000
1,000
300
300
300
150
1,000
1,000
1,000
$8,050

Total

3.

The operator pay the total amount. of the settlement
agreed upon, $8,050, on or before Friday, May 11,
1984 and that subject to payment the captioned
matters be DISMISSED.

Joseph B. Kennedy
Administrative Law
Distribution:
John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy,
50 South Main St., Suite 1600, Salt Lake City, UT 84144
(Certified Mail)
Frederick W. Moncrief, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)

/ejp

1070

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

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

APR 30 1984

CONTEST PROCEEDING
Docket No. WEVA 82-390-R
Citation No. 2024280; 8/18/82

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

Morton Mine
;

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 83-95
A. C. No. 46-01329-03519

v.

Morton Mine

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

Docket No. WEVA 83-82
A. C. No. 46-05907-03502
Shawnee Mine

DECISION
Appearances:

Louise.Q. Symons, Esq.:· Pittsburgh, Pennsylvania,
for Contestant/Respondent;
Matthew J. Rieder, Esq., and David E. Street,
Esq., Office of the Solicitor, u. s. Department
of Labor, Philadelphia, Pennsylvania, for
Respondent/Petitioner;
Joyce A. Hanula, Legal Assistant, Washington,
D. C., for Respondent United Mine Workers of
America.

Before:

Judge Steffey

A hearing in the above-entitled consolidated proceeding
was held on May 11, 1983, through May 13, 1983, in Beckley,
West Virginia, pursuant to section 105(-d), 30 u.s.c. § 815(d),
of the Federal Mine Safety and Health Act of 1977.

1071

The contest proceeding involves a dispute as.to whether
(USSM}, must allow a health. specialist, ·who works full time for the United Mine Workers of
America, to be the miners' representative to accompany a Federal
inspector under the provisions of section 103 (f}. t>f the Act.
The petition for assessment of civil penalty filed in Docket No.
WEVA 83-95 seeks assessment of a civil penalty for the violation
of section 103(f} which is being challenged in the contest proceeding and also seeks assessment of a penalty for an alleged
violation of 30 C.F.R. § 70.101. The petition for assessment of
civil penalty filed in Docket No. WEVA 83-82 seeks assessment of
a penalty for an additional alleged violation of section 70.101
(Tr. 205}, but with respect to USSM's Shawnee Mine instead of
USSM's Morton Mine, which is the mine involved in both Docket. No.
WEVA 82-390-R and Docket No. WEVA 83-95.

u. S. Steel Mining Co., Inc.

UMWA's representative participated at the hearing in only
that phase of the consolidated proceeding pertaining to the walkaround issues. Therefore, a hearing with respect to the alleged
violation of section 103(f} of the Act was first held and then a
hearing was held with respect to the two alleged violations of
section 70.101.
This decision will first dispose of the walkaround issues raised in Docket No. WEVA 82-390-R and the portion
of the civil penalty case in Docket No. WEVA 83-95 pertaining to
the alleged violation of section 103(f}. Thereafter the decision
will dispose of the issues pertaining to the alleged violations
of section 70.101.
Docket No. WEVA 82-390-R
Findings of Fact
The testimony of the witnesses and the documentary evidence
support the following findings of fact:
1. Leo Ingram, an MSHA inspector, went to USSM's Morton
Mine on August 18, 1982, to perform a respirable-dust inspection
on the longwall section {Tr. 7). He had made prior inspections
at the Morton Mine and .knew that the persons who normally accompanied him, as the miners' representative under the provisions
of section 103{f} of the Act, were Donny Samms, James Carter,
and Steve Holly {Tr. 12), but on August 18, 1982, Ingram saw
William Willis at the mine along with Donny Samms.
Ingram knew
that Willis was a UMWA District 17 safety inspector. Shortly
after Ingram had begun his work of placing respirable-dust pumps
on some of the miners, he was advised by Samms and Willis that
Willis would be accompanying him that day as the miners' representative and that Samms would be going underground with him,
but would be traveling under the provisions of West Virginia
law, while Willis would be accompanying him under the provisions
of the Act {Tr. 9; 18). Ingram had no objections to having
Willis accompany him as the miners' representative (Tr. 9).

1072

2. Samms and Willis soon thereafter advised Ingram that
USSM was not going to allow Willis to go with hini' as the miners'
representative.
Ingram asked Lawrence Burke, the mine superintendent, if he was refusing to allow Willis to accompany him-and
Burke replied "Yes". Willis expressed a belief that USSM's refusal to allow him to accompany the inspector was a violation of
section 103(f}.
Ingram was not certain as to the course of action he should take and made a telephone call to his supervisor
to obtain advice. After receiving instructions from his supervisor to the effect that a violation had occurred, Ingram wrote
Citation No. 2024280 under section 104(a} of the Act at 8:45
a.m. on August 18, 1982, alleging a violation of section 103(f}
of the Act, and stating as follows (Exh. 1) :
The operator refused to allow a representative
of the miners, William Willis, United Mine Workers
of America District 17 safety inspector, to travel
with an authorized representative of the Secretary
of Labor during a respirable dust technical inspection.
The citation gave USSM 30 minutes within which to abate the alleged violation. By the time a half hour had passed, the chief
mine inspector of USSM's Decota District, Carl Peters, had sent
word to Ingram that Willis would be allowed to accompany him.
Upon receiving USSM's approval for Willis to travel with him,
Ingram terminated the citation with the following explanation
(Exh. 1) :
The representative of the mine operator, Mike
Sinozich, has agreed to allow the representative,
William Willis, to travel with the authorized representative of the Secretary of Labor during a respirable dust technical inspection.
3. Ingram was accompanied underground by Samms, Willis,
and Michael Sinozich, USSM's safety inspector. All four of
them went to the longwall section where coal was being produced,
but Samms did not remain with the inspection party the whole
period they were underground. Samms left the section sometime
before noon, but Ingram does not know exactly what time it was
(Tr. 13).
Ingram did not ask Willis to accompany him and never
has asked anyone to accompany him, but he knows that he is permitted under the Act to allow more than one miners' representative to travel with him (Tr. 14; 17). Willis. advised Ingram
that he wanted to look into the dust problem on the longwall
section and Ingram thinks that Willis did make a suggestion
about the placement or direction of .water sprays on the longwall
mining equipment, but he did not recall what it was (Tr. 15).
Ingram was aware that he is not permitted under the Act to give
advance notice of inspections and he has never done so (Tr. 16).

1073

4.
James Carter was unemployed at the time pf the hearing, but on August 18, 1982, he was employed at the Morton Mine
as a supply man. He was also on the union's safety committee
and had called Willis on the evening of August 17, 1982, to come
to the mine on the morning of August 18, 1982, b~cause the union
wanted him to accompany the inspector on that day if the inspector returned to the mine on that day (Tr. 19-20). Carter knew
that Ingram had been notified that Willis would accompany him on
the inspection, but Carter had to go underground to work before
the issue of his being denied admittance to the mine had been
resolved (Tr. 21). While Carter agreed that it was the practice
of his local union to give USSM 24 hours' notice, if possible,
when an employee of UMWA is asked to come to the mine to participate in an inspection which the local union wants to make at
the mine, Carter stated that the 24-hour notice did not pertain
to a request that a UMWA employee come to the mine to accompany
an inspector under section 103(f) of the Act, but Carter could
not specify a time prior to August 18, 1982, when a UMWA employee had been requested to come to the mine to be the miners'
representative for accompanying an inspector (Tr. 26; 28).
5. William Willis, the UMWA safety inspector, who was
called by the local union to walk around with Ingram on August 18,
1982, corroborated Ingram's and Carter's testimony as to the fact
that he was called by the local union, or safety committee, on
the evening of August 17, 1982, and that he took a chance that
Ingram would be at the mine again on August 18, 1982, to obtain
additional respirable-dust samples because production had been
below normal on August 17 when Ingram had previously tried to
obtain samples (Tr. 29-31). Willis has had the same training as
that given to MSHA's inspectors, in addition to other training,
and he is a certified mine foreman under West Virginia law (Tr.
29). Willis testified that he gave someone in the Morton Mine
office notice that he was there on August 18, 1982, to go on an
inspection with Ingram, but he could not recall the name of the
person he notified (Tr. 31).
6. Willis' testimony does not differ significantly from
Ingram's as to what occurred after he, Sinozich, and Samms went
underground with Ingram, except that Willis made it clear that
Samms was performing his own inspection under West Virginia law
by examining the respirable-dust pumps so as to make it clear
that he (Willis) was the.sole representative of miners to accompany Ingram (Tr. 34; 36-37). According to Willis, Samms left
the longwall face and went to the head entry where he was eating
lunch by the time he, Sinozich, and Ingram arrived at the head
entry to eat lunch. Willis also claimed that Sinozich and Samms
got into a heated argument about what Samms' duties were on
August 18 and that Samms told Sinozich at lunch time that he had
called his section foreman for a ride so· that he could leave the
longwall section and return to his regular working place (Tr. 36).

1074

Willis also stated that Samms was still at the head entry about
1 p.m. when he, Sinozich, and Ingram returned to the longwall
face, but Willis also claimed that Carter came in a vehicle and
picked up Samms so as to take Samms to his regular place of
work (Tr. 36).
7. Willis claims to have made two suggestions as to the
dust problem on the longwall section. One suggestion was about
changing the position of the water sprays which were being welded
to the longwall mining equipment (Tr. 35) and the other was about
using a curtain to deflect dust away from the operator of the
equipment and the jack setters (Tr. 37). At one point in his
testimony, Willis denied that his visit to the longwall section
had anything whatsoever to do with the fact that Ingram was there
because he had come to the mine after receiving from the local
union a complaint about the dust problem on the longwall section.
Willis said he had received the complaint prior to June 1982 but
had delayed filing it with a West Virginia State inspector because he wanted to give USSM time to make some changes which he
had been advised were going to be made (Tr. 45; 52). Willis subsequently insisted that he had gone into the mine to assist Ingram with his inspection and to make suggestions to both Ingram
and USSM's management as to what could be done to alleviate the
respirable-dust problem on the longwall section (Tr. 50). Willis
eventually justified his accompanying Ingram by saying that he
wanted personally to observe the conditions on August 18, 1982,
so that he would have documentation (through the results of the
analyses of the inspector's samples) to assist him in determining what additional steps would need to be taken to eliminate
the dust problem (Tr. 56).
The three respirable-dust samples
obtained by Ingram on August 18, 1982, did show that the longwall
section was in compliance with the respirable-dust standards (Tr.
78) .
8. Willis was not aware of the fact that UMWA's office in
Washington, D.C., had filed with MSHA on April 5, 1978, a certification as to the persons who were considered to be the miners'
representatives at the Morton Mine when it was owned. by Carbon
Fuel Company (Tr. 44; 53; UMWA Exh. 1). A copy of the certification was served on Carbon Fuel on March 24, 1978; The mine was
owned by Carbon Fuel in 1978. That certification specifies certain persons who are considered to be miners' representatives at
the Morton Mine and one of the persons so designated is "the UMWA
Safety Division, including District Safety Inspectors". ·Willis
was aware of the fact that he could have inspected the longwall
section any time before and after August 18, 1982, under the provisions of the National Bituminous Coal Wage Agreement of 1981
(Tr. 56-57; UMWA's Exh. 2). Willis is a full-time UMWA employee
and was not paid by USSM for the time he traveled with the inspector on August 18, 1982, and did not expect to be paid any-.
thing by USSM (Tr. 57). USSM did, however, pay Samms for the
entire shift (Tr. 77).

107G

9. Michael Sinozich is a mine inspector for USSM at the
present time and he held that same position when· the Morton Mine
was owned by Carbon Fuel Company (Tr. 62-63). When Sinozich
arrived at the mine on the morning of August 18, 1982, he went
into the lamp room to obtain his light and saw William Willis
and Donny Samms there (Tr. 63). He knew that Willis was one of
UMWA's safety inspectors (Tr. 75) and advised Willis that he was
not supposed to be on mine property without having given previous notification that he was coming (Tr. 64). When Willis told
Sinozich that he had come to travel with the inspector that day
as the miners' representative, Sinozich disagreed with that
assertion and replied that Samms was the miners' representative
for traveling with the inspector (Tr. 64-65). Sinozich's testimony does not differ substantially from other witnesses as to
USSM's refusal to allow Willis to travel with the inspector and
USSM's reversal of that refusal after Ingram issued a citation
for an alleged violation of section 103(f) of ~he Act (Tr. 6566) •
10. Sinozich's testimony does differ from Willis' testimony in some respects.
Sinozich claims that Samms was with the
inspection party in the face area of the longwall section up to
11:30 a.m. and that Samms left the longwall section about 12:30
p.m. after he had eaten lunch at the head entry (Tr. 69-70).
Sinozich also stated that he was surprised when Samms left the
longwall section because Samms had not at any time explained to
him that he {Samms) was there under a provision of West Virginia
law. Additionally, Sinozich stated that his understanding of
West Virginia law is that the miners have a right to participate
in the taking of respirable-dust samples by USSM, but have no
'right to monitor or check the samples taken by MSHA. Sinozich
did not think that Samms had any reason to go with the inspector
to check the pumps placed on three miners in the longwall section on August 18 because USSM was not engaged in taking
respirable-dust samples in the longwall section on that day (Tr.
71-72).
11. Sinozich' s testimony also differs from Willis' and
Ingram's testimony to the extent that Sinozich testified that
Willis made no recommendations to him about changes in the ventilation system or changes in engineering for the purpose of
controlling dust on the longwall section. Sinozich stated that
Samms checked the pumps placed on three miners by Ingram, but
that Willis did not.check the pumps (Tr. 78-79). Sinozich also
testified somewhat inconsistently as to Willis' role underground
by first stating that it was too noisy to discuss technical aspects of the dust problems on the longwall section (Tr. 70),
while subsequently conceding that the longwall equipment was not
running at times while the water sprays were being installed or
repositioned and by conceding that the members of the inspection
crew did talk at times (Tr. 74; 76-77). Sinozich denied that he

1078

had a heated discussion with Samms as claimed by ~ngram (Tr. 69).
Sinozich also testified that at no time did he tell Samms that
he was forbidden to go on the inspection or that he should not
continue to be with the inspection party for the full shift (Tr.
69) •
12. Carl Peters is USSM's chief mine inspector for the
Decota District .. He has held that position since June 12, 1982,
and prior to that he was director for health and safety for Carbon Fuel Company (Tr. 80). Peters corroborated Willis' testimony to the extent of agreeing that Willis had discussed with him
in June of 1982 at the West Virginia mine office the respirabledust conditions on the longwall section and that he had advised
Willis of the steps USSM was taking to alleviate the problem, but
he denied that Willis had expressed an intention of coming to the
mine to accompany an MSHA inspector at any time with respect to
the respirable-dust problem in the longwall section (Tr. 80-81).
13. Peters stated that the miners' representatives for
traveling with inspectors under section 103(f} of the Act are
chosen by the union and that USSM has no right to participate in
the union's choice of representatives and that USSM·does not
have any right to approve the union's choice of its representatives (Tr. 86). On the other hand, Peters stated that he does
not recall having been served by UMWA with a statement of the
persons who are considered to be miners' representatives (Tr. 82).
Peters also stated unequivocally that Willis is not a miners'
representative to accompany inspectors at the Morton Mine (Tr.
85). Peters stated that the miners' representatives are selected
at the mines and that the mine foremen know who they are and that
i t is a routine understanding that when an inspector appears at
the mine, one of the known representatives will automatically
accompany the inspector (Tr. 86). Peters stated that the reason
they initially refused to allow Willis to accompany Ingram was
based on the "surprise" of being hit with "an International
safety rep without proper notification. * * * It threw the whole
system off" (Tr. 87).
Consideration of the Parties' Arguments
Introduction
USSM filed its brief on September 9, 1983, UMWA filed its
initial brief on September 12, 1983, and the Secretary of Labor
filed his brief on September 14, 1983. UMWA filed a reply brief
on September 30, 1983.
When the parties first replied to a prehearing order issued
October 15, 1982, they indicated that they would like to submit
the issues to me for decision on the basis of a stipulation of
facts.
UMWA filed a notice of intervention on November 5, 1982.

107'(

After I had granted some extensions of time withip which ~o file
the proposed stipulations, I was subsequently advised in a letter filed on February 10, 1983, that the parties had been unable
to reach agreement on a stipulation of facts and that the case
would have to be scheduled for hearing.
The issues discussed in the parties' briefs show that they
are still disputing the basic facts in this proceeding. USSM's
brief (p. 2) states that the issue raised is:
If a miner's representative is available to
accompany a federal MSHA inspector, is an operator
required to also permit a representative of the
international union to join the inspection party
absent a request by the inspector?
UMWA's brief (p. 4) expresses the issue as follows:
The underlying issue in this case is whether
USSM should be permitted to interfere in any way
with the selection of the miners' representative
under section 103(f) of the Act. For the reasons
that will be outlined in this brief, the UMWA urges
this Court to interpret 103(f) so as to prohibit
any interference on the part of the operator with
the selection of the miners' representative.
[Emphasis added by UMWA.]
The Secretary's brief (p. 11), on the other hand, expresses
the issue as follows:
Thus, the entire case boils down to the question of whether the Union's failure to follow the
technical requirements of 30 C.F.R. § 40.3 would
deprive the operator's miners of the right to have
the Union's safety and health specialist be their
walkaround representative when they need him to
act in that capacity, as they did here when the
local safety committeemen could not resolve a potentially serious health hazard and sought the
benefit of Mr. Willis' expertise.
The Secretary
submits that the appropriate conclusion, already
reached by one Review Commission Judge, is that
the miners' health is the more important concern.
It is apparent from the parties' arguments that UMWA and
the Secretary have addressed only very briefly the issue raised
in USSM's brief. USSM's original notice of contest did not expressly state the issues raised by Citation No. 2024280 and in
my prehearing order of October 15, 1982, I stated that I did
not know what issue USSM was raising and noted that if the issue

1076

was merely the question of whether an operator ha.s to pay a
miners' representative who is accompanying an inspector engaged
in making a spot inspection, that question had already been
laid to rest by the court's decision in UMWA v. FMSHRC, 671 F.2d
615 (D. C. Cir. 1982), cert. den.,-74 L.ifcr2d 1~9· (1982).
USSM clarified the issues being raised in this proceeding
by filing a letter on October 29, 1982. A copy of the· letter
was sent to both. the Secretary and UMWA.
In that letter USSM
specified two issues it was raising in this proceeding as follows:
(a)
The facts in this case are that USSM
allowed the elected representative of the miners
to accompany the inspector and paid him for the
time involved. The issue in this case is whether
the operator must also allow a representative from
the district off ice of the union to accompany the
miners.
UMWA v. FMSHRC, 671 F.2d 615 (1982), did
not discuss the issue of whether the operator must
permit two representatives of the miners on an inspection party, one from the local and one from
the national office.
(b)- The facts in this case will establish
that the local union never listed William Willis
as a representative of the miners pursuant to 30
CFR §40, and that the local union failed to notify
mine management that they requested the assistance
of Mr. Willis pursuant to Article III, Section (e)
(1) of the basic labor agreement.
USSM's brief (p. 5) distinguishes the Commission's holding
in Consolidation Coal Co., 3 FMSHRC 617 (1981), by pointing out
that in that case the inspector requested the assistance of
UMWA's national safety representative and Consol objected to
the request on the ground that the national representative had
not been designated on the form filed pursuant to 30 C.F.R.
§ 40.3. USSM argues that none of the parties in this proceeding based their actions on the notice of representation.
Therefore, USSM argues that the Commission's holding in the
Consol case is inapplicable to the facts in this proceeding.
USSM is ·incorrect in arguing that the Consol case is inapplicable to the issue stated in paragraph (b) above because
the Commission held in the Consol case "* * * that failure of
a person to file as a representative of miners under Part 40
does not per se entitle an operator to deny that person walkaround participation under section 103(f)" (3 FMSHRC at 619).
As I have noted in Finding No. 8, supra, the union did file
with MSHA, under the Federal Coal Mine Health and Safety Act of

1079

1969, a certification of miners' representative for the Morton
Mine. While a copy of the certification was served on Carbon
Fuel Company, the union did not update the certification by serving a copy on USSM after USSM assumed ownership of the Morton
Mine. The fact that the union's certification is .. somewhat defective in terms of service of process is immaterial in light of
the Commission's holding in the Consol case to the effect that
complete failure to file a certification under section 40.3 is
not a sufficient reason for an operator to deny walkaround rights
under section 103(f).
USSM's brief seems to have dropped the issue about UMWA's
failure to file a certification pursuant to section 40.3 of the
regulations because the only issue specifically articulated in
the brief is the one pertaining to the safety committee's alleged
appointment of two miners' representatives to accompany the inspector under section 103(f) of the Act. To the extent that
USSM may still be arguing that it had a right to deny Willis the
right to walkaround with the inspector on August 18, 1982, because he had not been listed in a filing made pursuant to section
40.3, I believe that that argument must be rejected under the
Commission's holding in the Consol case, supra.
Rights of UMWA under the Wage Agreement
In USSM's letter filed on October 29, 1982, USSM also contends, in paragraph (b), supra, that the union violated the
notice provisions of Article III, Section (e) (1) of the Wage
Agreement which provides as follows (UMWA Exh. 2, pp. 12-13):
(1)
Subject to the routine check-in and checkout procedures at the mine, the officers of the International Union, the District President of the
District involved, and authorized representatives of
the International Union's Safety Division and Department of Occupational Health shall be afforded the ·
opportunity to visit a mine to consult with management or the Mine Health and Safety Committee and to
enter the mine at the request of either management
or the Mine Health and Safety Committee.
It is obvious that the only "notice" UMWA is required to giv~
under Section (e) (1) of the Wage Agreement is that it will follow
the "routine check-in and check-out procedures" at the Morton
Mine. Presumably all persons who went into the mine on August 18
followed the routine check-in and check-out procedures because no
witness was asked any questions about checking in and out of the
mine, but USSM's counsel did elicit from UMWA's witness Carter
the fact that i t is the local union's practice to give USSM 24
hours' notice of an intent to make an inspection of the mine if
the inspection is going to be made under the Wage Agreement, but

1080

Carter also insisted that the local union's practice of giving
24 hours' notice did not pertain to a request that a safety inspector from the international union be named as the miners'
representative to accompany an MSHA inspector under section
103(f) of the Act (Finding No. 4, supra).
UMWA's brief (p. 5) indicates that the provision USSM
should have cited in the Wage Agreement with respect to giving
USSM notice is Article III, Section (d) (4) of the Wage Agreement
which provides (UMWA Exh. 2, p. 11):
(4)
The Committee shall give sufficient advance notice of an intended inspection to allow a
representative of the Employer to accompany the
Committee.
If the Employer does not choose to
participate, the Committee may make its inspection
alone.
UMWA's brief (p. 5) argues that USSM is confusing the miners'
rights under the Wage Agreement with their rights under the Act.
UMWA's brief (p. 6) contends that the Safety Committee cannot
give USSM advance notice as to when a miners' representative,
who doesn't work at the mine, will appear at the mine to accompany an inspector under section 103(f) because the safety committee is not given advance notice of inspections by MSHA and
that it would be contrary to section 103(a) of the Act for MSHA
to give the safety committee advance notice. 1/ Therefore,
UMWA contends that USSM, in arguing that USSM-is entitled to 24
hours' advance notice when a representative of the international
union is being asked to accompany an inspector, is asking the
safety committee to do something which is beyond the safety committee's ability to do.
UMWA further argues that it is the
union's right under section 103(f) to appoint a miners' representative who does not work for the operator if that person has
more expertise to appraise a safety or health problem than one
of. the miners who works for the operator. UMWA contends that
section 103(f) specifically provides that the miners' representative has to be paid for accompanying an inspector only if he
is an employee of the operator whose mine is being inspected.
UMWA notes that there is no issue in this case about whether
USSM has to pay the person who accompanied the inspector because
Willis is a full-time UMWA employee and did not expect to be
paid by USSM for accompanying the inspector (Finding Nos. 5 and
8, supra).

1/

Section 103(a) of the Act, in pertinent part, provides:

"* * * In carrying out the requirements of this subsection, no
advance notice of an inspection shall be provided to any person,

* * *"

1081

While UMWA's arguments are legally correct ip contending
that UMWA is not given any advance notice as to when inspections
are going to take place, it is a fact that the safety committee
thought that Inspector Ingram would return to the mine on
August 18, 1982, to obtain additional respirabl~-dust samples
because the longwall section had not been operating at a normal
production level on August 17 when the inspector had previously
been at the mine to obtain respirable-dust samples.
The safety committee called Willis on the evening of
August 17 and asked him to come to the mine to accompany the
inspector on August 18 if the inspector returned.
The record
contains nothing to show why the safety committee could not also
have called USSM's mine inspector, or chief mine inspector, or
mine foreman, or mine superintendent so as to notify at least
one of those individuals that the committee wanted to have Willis,
instead of Samms, be the miners' representative on the morning
of August 18 if Inspector Ingram should appear for the purpose
of obtaining respirable-dust samples as anticipat~d by the safety
committee.
Moreover, there is some doubt in the record as to whether
Willis gave USSM any notice at all on August 18 that he had come
to the mine to accompany the inspector.
The only notice which
UMWA purports to have given USSM prior to Samms' advising Inspector Ingram that Willis was going to be the miners' representative is contained in the following statement by Willis during
direct examination by his counsel (Tr. 31-32):

Q Could you tell me what happened when you
arrived on the mine site on August 18th?
A I went to the mine office and informed
management that I was there to go on inspection
with Mr. Ingram.

Q

Who of mine management did you inform?

A

I don't remember who was in the office.

Q

You can't remember the name of the per-

A

No

son?

Since Willis was acquainted with USSM's mine superintendent, mine
inspector (Tr. 30-33), and chief mine inspector (Tr. 39), it is
strange that he wa·s unable to identify the person in the mine
office whom he had notified of his being present for the purpose
of accompanying Inspector Ingram.

1082

Sinozich, USSM's mine inspector, is the first person in
USSM's management who became aware of Willis' presence and he
did not know that Willis had been asked to be the miners' representative to accompany the inspector when he went to obtain his
cap light before going underground_and saw Willis .. and Samms in
the lamp room. Sinozich immediately advised Wil"lis that Willis
was not supposed to be on mine property without having given
USSM prior notice (Tr. 64).
In view of Sinozich's fast adverse
reaction to Willis' presence, it is somewhat doubtful that
Willis actually gave any of USSM's management personnel notice
on the morning of August 18 that he had come to the mine for the
purpose of accompanying an inspector until the reason for his
presence was challenged by Sinozich in the lamp room. The only
reason which Willis could give for failure to give notification
prior to the morning of August 18 was that he had been called by
the safety committee the night before and did not have time to
give notice.
If it was possible for the safety committee to
call Willis at night to ask him to come to the mine to accompany
an inspector, it would have been just as possible for Willis or
the safety committee to call some person in USSM's management to
advise that person that Willis was planning to come to the mine
on the morning of August 18 to accompany an inspector who was expected to be there to take respirable-dust samples.
Despite the safety committee's lack of concern about giving
USSM any prior notice of the fact that Willis had been asked to
be the miners' representative on August 18, there is nothing in
section 103(f) of the Act which requires either the safety committee or anyone to give USSM advance notice as to the identity
of the miners' representative until the time the inspector is
ready to go underground. Therefore, despite the union's lack of
ordinary courtesy and consideration, I find that Willis had a
right to be the miners' representative for the purpose of accompanying the inspector on August 18, 1982, even if Willis gave no
prior notification until his presence at the mine was challenged
by Sinozich.
USSM's brief (p. 4) argues that if it is required to allow
anyone chosen by the miners as their representative to go underground, USSM would be required to let anyone so designated to
accompany the inspector even if that person were a mining engineer from a competitive company or Willis' wife and children.
USSM's brief notes that a person under 18 years of age is barred
from entering the mine by West Virginia law.
It is possible, of course, that the safety committee might
choose a person who has no expertise at all as the miners' representative, but that is not likely to happen. Moreover, if
the safety committee should make an absolutely absurd selection
as the miners' representative, USSM's management would be obligated to object to the selection, just as USSM's management did

1083

in this case. Any time that USSM objects to a given miners' representative the inspector necessarily becomes the·person to approve or-disapprove that appointment.
In this case, the inspector was sufficiently in doubt as to Willis' legal right to be
the miners' representative that he_called his sup~~visor to clarify the position he should take.
In this case, ·the supervisor
instructed the inspector to write a citation, but it is highly
unlikely that the inspector or his supervisor would conclude that
a citation should be written if a miners' representative should
decide that he wanted to take his wife and children with him for
the purpose of accompanying an inspector.
It is also highly
doubtful that an inspector would cite USSM for a violation of
section 103(f) if USSM should object to the appointment of a
mining engineer employed by a competitive company as the ·miners'
representative.
In short, while I think the safety committee and Willis
could have been more cooperative in providing USSM's management
with more advance notice than was given in this case, I do not
believe that the safety committee is precluded from asking that
one of its safety inspectors from the international union be
allowed to accompany an inspector as the miners' representative
in cases such as this one in which it has been shown that the
local union's miners' representatives felt inadequate to be
helpful to the inspector in taking respirable-dust samples on
the longwall section which had been out of compliance with the
respirable-dust standards for about 1 year.
USSM's chief mine inspector was at least aware of the union's
concern about the longwall section's noncompliance with the
respirable-dust standards and acknowledged that Willis had discussed the problem with him on one occasion (Finding No. 12,
supra). Therefore, the choice by the safety committee of Willis
as the miners' representative on August 18, 1982, was not an action which should have been of any great surprise or distress to
USSM's management, despite the chief mine inspector's claims to
the contrary (Tr. 87).
I agree with the arguments in UMWA's brief, discussed above,
that the notice provisions in the Wage Agreement pertain only to
inspections which the safety committee wishes to perform under
the provisions of the Wage Agreement and that UMWA is not bound
by those notice requirements when the safety committee is choosing the miners' representative to accompany an inspector pursuant
to section 103(f) of the Act.
The Question of Whether There Were Two Miners' Representatives
on August 18, 1982
USSM's brief (p. 3) contends that section 103(f) of the Act
contemplates that each party will have one representative to

1084

accompany the inspector unless the inspector feels that he needs
additional help.
USSM concludes, therefore, that-since the inspector did not specifically request Willis' assistance, the
safety committee improperly insisted on having both Willis and
Samms accompany the inspector. USSM argues that once the miners
choose their representative, that person remains their choice
until they inform management that a new representative has been
chosen. USSM states that once the selection has been made, no
additional representative may accompany the inspector unless he
requests assistance.
It is a fact that Inspector Ingram did not
request either Samms or Willis to accompany him and he testified
that he felt perfectly competent to obtain respirable-dust samples on the longwall section without the assistance of anyone
(Tr. 14) •
The Secretary's brief (p. 10) argues that Samms was not the
only employee at the Morton Mine who had been designated as the
miners' representative to accompany the inspector and that no
one on August 18 was under the impression that Samms was the
miners' representative to accompany the inspector on that day.
The Secretary agrees that Samms went underground with the inspector, along with Willis and USSM's mine inspector, Sinozich, but
contends that Samms was going to the longwall section to check
the respirable-dust pumps under West Virginia law. Therefore,
the Secretary claims that USSM's contention that the inspector
had to request an additional representative before Samms could
go has no application in the circumstances existing in this
case.
UMWA's brief (pp. 8-9) contends that only one miners' representative, Willis, accompanied the inspector on August 18.
UMWA states that Samms went underground with the inspection team,
consisting of the inspector, Sinozich, and Willis, but that
Samms did not remain with the inspection party because he was
making an independent check of the respirable-dust pumps and
left the inspection party before the inspection was completed.
Additionally, UMWA argues that the union never requested that
two representatives accompany the inspector and that the inspector knew before going underground that only Willis was the
union's representative for accompanying the inspector.
At first glance, USSM appears to have a valid argument with
respect to its "two representatives" claims.
It is a fact that
both Samms, a previously identified miners' representative, and
Willis, the special miners' representative chosen to accompany
the inspector on August 18, did go underground with the inspector.
It is also true that, while Samms claims to have been going underground under a provision of West Virginia law, USSM's
witness, Sinozich, claimed that West Virginia law only allows a
miners' representative to participate in the taking of respirabledust samples by an operator. Sinozich stated that since MSHA ·

1085

was taking the dust samples, instead of USSM, thqt Samms did not
have a right under West Virginia law to check the respirabledust pumps which had been placed on three miners by Inspector
Ingram {Finding No. 10, supra).
None of the four briefs filed in this proceeding cites the
provision of West Virginia law which is allegedly involved.
Therefore, I assume that no party is entirely certain whether
Samms had a legitimate right under West Virginia law to go underground on August 18 to check the respirable-dust pumps placed on
three miners in the longwall section. Nevertheless, the inspector was aware of the fact that Samms claimed to be going under
West Virginia law and he specifically stated that he believed
Samms' announcement that he was going underground under West
Virginia law took the matter out of the inspector's hands entirely.
The following testimony shows beyond any doubt that the
inspector thought he was being accompanied by a single miners'
representative {Tr. 18):

Q As far as you were concerned, on August 18th
who was the miners' representative that went with
you?
A On August 18th, sir, after I issued the
citation Mr. Willis was the designated miners' representative.
I was instructed that we believed at
the time of the conference that he had a right to
travel.

Q And even though Mr. Willis had been designated as the miners' representative for that day,
I understood you to say that Mr. Samms also went
along?
A

Yes, sir.

Q So you had two people with you who worked
for the union. Mr. Samms didn't work for the
union; he worked for United States Steel.
Is
that right?
A

Yes.

Q Whereas Mr. Willis is employed by UMWA as
I understand it?
A Yes, sir. Mr. Samms informed me that he
was going to monitor my dust sampling inspection
under provision of the state law which I'm not
familiar with and that took it out of my hands.
As far as I was concerned with him, he was going
under the state law and Mr. Willis was going under
the Mine Health and Safety Act.

1086

Willis' recollection of the discussion about, there being
two miners' representatives is summarized in the· following
answer to a question asked by UMWA's legal assistant (Tr. 3233) :
A And discussions went on, and I think Mike
[Sinozich] -- I'm pretty sure but I think he talked
to Carl Peters, and Mike said, "He told me that he
was going to object to you going with Mr. Ingram on
this inspection." And I told Mike that I was the
authorized representative of the miners, and he
said that Mr. Samms was. Mr. Samms said, "No, Mike",
said, "Bolts [Willis] is the representative of the
miners." He said, "I'm going to go and look at the
samples, under state law. The court decision was
recently handed down by Judge Harvey." He said
tben he wasn't going to let me go.

Q

Did he give you a reason?

A He said Donny Samms was the local union
safety committeeman, and he usually travels with
the inspector. * * *
The testimony of Sinozich as to the question of whether
Samms went underground under West Virginia law consists of a
short answer to a single question asked by USSM's counsel (Tr.
71) :

Q Did Mr. Samms at any time indicate to you
that he was acting under state law?
A

No, he did not.

Sinozich also expresses on transcript page 71 his opinion that
West Virginia law does not permit the miners to participate in
the taking of samples by an MSHA inspector (Finding No. 10,
supra) .
There is some additional testimony which should be considered
in determining whether the preponderance of the evidence supports
a finding that two miners' representatives accompanied Inspector
Ingram on August 18, 1982. Willis' testimony shows that Samms
made a very significant effort to disassociate himself with the
inspector's activities after they went underground. According
to Willis, Samms went immediately to the face area of the longwall section and checked two respirable-dust pumps and was on
his way back to check a third pump when the other three persons
(Inspector Ingram, Willis, and Sinozich) in the inspection party
made their way to the face area. Moreover, Willis stated that
Samms remained away from the inspection party all morning and

1087

was eating his lunch at the head entry when Ingram, Willis, and
Sinozich came to the head entry to eat their lunch. Additionally,
Willis stated that Sinozich and Samms became involved in a heated
argument at the head entry as to what duties Samms purported to .
be doing at that time, whereas Sinozich denies that he ever had
any sort of argument with Samms on August 18 (Finding Nos. 6 and
11, supra).
The inspector's testimony indicates that Samms did not remain with the inspection party and that Samms left the longwall
section about noon (Finding No. 3, supra).
Based on the preponderance of the evidence discussed above
and my observations of the witnesses' demeanor, I find that
Samms did advise Sinozich that he was going underground to check
the respirable-dust samples under West Virginia law and that the
inspector was aware of having with him only one miners' representative, namely, Willis. Therefore, the record does not support USSM's argument that the safety committee insisted on having two miners' representatives accompany the inspector on
August 18, 1982. Since Sinozich had been advised by Samms that
Samms was going with the inspection party to check respirabledust samples under West Virginia law, he had ample opportunity
to assert that Samms could not go under West Virginia law and
would either have to be considered as a second miners' representative to accompany the inspector under section 103{f) or be
denied the r~ght of going underground except to work on his own
section.
There is every indication that if the union had been confronted with a choice of having Willis go as the miners' representative or having Willis denied the right to go because Samms
was also insisting on going as the miners' representative, the
union would have elected to send Willis under section 103(f)
and would have dealt with USSM's claim that Samms couldn't go
underground to check respirable-dust pumps under West Virginia
law. Since the union was not given the chance to make that
decision on August 18, 1982, I do not believe that USSM should
be permitted to argue on the basis of the record in this proceeding that the safety committee insisted on sending two miners'
representatives to accompany the inspector on August 18, 1982.
As noted above., Inspector Ingram was completely unaware of
any claim by USSM that he was permitting two miners' representatives to accompany him on August 18. He unequivocally testified
that as far as he was concerned only Willis was the miners' representative to accompany him on August 18 and that Samms took
the matter of his being one of the inspection party out of the
inspector's hands by.announcing that he was going underground
to check respirable-dust samples under West Virginia law (Tr.
18) •

108B

Finally, I do not think that section 103(f) requires that
the inspector must request an additional represeni:ative before
two representatives may go with him. Section 103(f) simply
states that "[t)o the extent that the Secretary or authorizedrepresentative of the Secretary det~rmines that mqre than one
representative from each party would further aid~the inspection,
he can permit each party to have an equal number of such additional representatives." [Emphasis supplied.]
That sentence
means that the inspector may permit more than one representative
for each party regardless of whether he actively requests that
more than one person accompany him.
In this case, however, the
inspector was never asked to permit more than one representative
to accompany him because, so far as he was concerned, the safety
committee had elected to send only Willis as the miners' representative. Consequently, USSM simply cannot raise the "two
miners' representatives" argument in this proceeding because the
preponderance of the evidence fails to support such an argument.
A Violation of Section 103(f) Occurred
On the basis of the discussion above, I have found that the
safety committee had a right to select a safety inspector from
the international union as its miners' representative under section 103(f) of the Act on August 18, 1982. Therefore, the inspector properly cited USSM for a violation of section 103(f)
when USSM refused to allow UMWA's safety inspector to accompany
the inspector. The order accompanying this decision will hereinafter affirm Citation No. 2024280 issued August 18, 1982, which
alleged that a violation of section 103(f} had occurred.
DOCKET NO. WEVA 83-95
The Secretary's petition for assessment of civil penalty
filed in Docket No. WEVA 83-95 seeks assessment of two civil
penalties, the first.one being for the violation of section
103(f) of the Act alleged in Citation No. 2024280 considered
above in Docket No. WEVA 82-390-R, and the second one being for
a violation of 30 C.F.R. § 70.101 alleged in Citation No. 9917507
dated September 1, 1982. Assessment of a penalty for the violation of section 103(f) must be done on the basis of the record
developed in the contest proceeding in Docket No. WEVA 82-390-R
because the civil penalty issues were consolidated for hearing
in the contest proceeding. Evidence was introduced by USSM and
the Secretary in Docket No. WEVA 83-95 with respect to the violation of section 70.101 alleged in Citation No. 9917507.
USSM's Argument that a Judge Is Bound by the Provisions of 30
C.F.R. § 100.4
Since Inspector Ingram did not check the block on Citation
No. 2024280 appearing after the words "Significant and Substantial", the Assessment Office proposed a "single penalty assessment"

1089

of $20 under 30 C.F.R. § 100.4 which proviqes as

~ollows:

An assessment of $20 may be imposed as the
civil penalty where the violation is not reasonably
likely to result in a reasonably serious injury or
illness, and is abated within the time set oy the
inspector.
If the violation is not abated within
the time set by the inspector, the violation will
not be eligible for the $20 single penalty and will
be processed through either the regular assessment
provision (§ 100.3) or special assessment provision
(§ 100.5).
USSM attached to its brief, filed in Docket No. WEVA 83-95, a
copy of its petition for discretionary review of a decision by
Judge Broderick issued in U. S. Steel Mining Co., Inc., 5 FMSHRC
934 (1983).
In that U.S. Steel decision, Judge Broderick held
that the "* * * Commission is not bound by the Secretary's regulations setting out how he proposes to assess penalties" (5
FMSHRC at 936).
USSM relies on the arguments made in its petition for discretionary review filed in Judge Broderick's case in
Docket No. PENN 82-328 in support of its claim that I am bound
by the provisions of section 100.4 and must, therefore, assess a
penalty of only $20 for the violation of section 103(f) because
that is the penalty which the Secretary proposed for that violation in Docket No. WEVA 83-95 when he proposed the penalty under
section 100.4.
The first argument which USSM's petition (p. 2) makes is
that an "* * * operator has no remedy at law" if an inspector
erroneously checks the "significant and substantial" block on a
citation. USSM claims that if a manager's conference held under
section 100.6 of the regulations fails to result in a reversal
of the inspector's error, the operator may contest the penalty
under section 100.7 where lawyers will become involved, but USSM
claims that if the lawyers do find that the inspector made an
error in checking the "S & S" block, the operator will be unable
to obtain relief because "* * * the Administrative Law Judges
are not willing to approve a settlement motion for the single
penalty assessment because they do not agree with the new penalty
criteria" (Petition, p. 2).
There are at least two fallacies in USSM's first argument.
First, section 100.7 of the regulations and section 105(d) of the
Act are designed to provide the operator with a forum where he
can present evidence and arguments in support of his claims that
the inspector improperly checked "S & S". When USSM sought review of the inspector's citing of USSM for a violation of section
103(f), USSM's attorney checked a block on a form which states,
"I wish to contest and have a formal hearing on all the violations
listed in the Proposed Assessment." USSM was provided with an

1090

extensive hearing on the inspector's having cited... USSM for a
violation of section 103(f). There is nothing in the Act or in
Part 100 of the regulations which provides that once a hearing
has been held, the judge is precluded from using the evidenc~ in
that hearing to assess a civil penalty under sec~ion llO(i) of
the Act.
The second error in USSM's first argument is that USSM incorrectly states that administrative law judges will not approve
a settlement motion involving a single penalty assessment of $20
under section 100.4. I have approved several settlements involving $20 assessments proposed by the Secretary pursuant to section
~00.4.
See, e.g., Eureka Mining Corp., Docket No. LAKE 83-5,
issued January 27, 1983; RB Coal Company, Inc., Docket No. KENT
83-24, issued July 13, 1983; and D & D Coal Company, Inc., Docket
No. KENT 83-25, issued October 17, 1983. There are other errors
in USSM's first argument, but they will hereinafter be noted in
my discussion of USSM's other allegations.
USSM's second argument begins with the observation that the
case law to date has arisen only under section 100.3 "* * * which
has an elaborate scheme for considering the six penalty criteria"
(Petition, p. 2). USSM concedes that the Commission and its
judges are ~ot bound by the provisions of section 100.3 "* *· *
because both parties may have more information after a full hearing than the assessment office had originally" (Petition, p. 2).
USSM's petition (p. 3) tries to distinguish section 100.3 from
section 100.4 by asserting that there is considerable discretion
in applying the six criteria described in section 100.3 but little
discretion in applying section 100.4's two criteria which only
pertain to whether the violation was "S & S", that is, reasonably
likely to result in a reasonably serious injury, and whether the
violation was abated within the time given by the inspector. Th~
aforesaid difference in the range of discretion between the two
sections is said by USSM to make the present case law inapplicable to section 100.4.
USSM refers to the Commission's language in Sellersburg
Stone Co., 5 FMSHRC 287 (1983), in which the Commission held that
it is not bound by the Secretary's assessment formula, and USSM
claims that the preamble to the regulations relied on by the
Commission in that case specifically refers to section 100.3,
not to section 100.4. USSM's petition (p. 3) further states
that the word "may" used in the first sentence of section 100.4
implies that application of the section may be discretionary, but
USSM claims that the word "may" is restricted to making the two
required findings as to nonseriousness and timely abatement.
USSM claims that the Secretary stated in the final rule that the
term "single penalty assessment" was being used to clarify that
$20 is the only penalty an operator could receive under section
100.4.

1091

In addition to the lack of discretion permitted in applying
section 100.4, as opposed to section 100.3t USSM'~ petition (p. 4)
argues that section 100.4 enunciated a new agency policy which
is binding upon the operator and the agency.
USSM argues that a
judge cannot ignore the new test devised by the agency whose
rules he is supposedly applying and substitute h~s own test.
USSM continues its argument by saying that a judge cannot create
law because he does not agree with the existing regulation and
that a judge "* * * must base his decision on the testimony he
has heard" (Petition, p. 4).
If USSM is going to base its arguments on the "case law"
pertaining to penalty assessments, it ought to start with the
procedures used by the Secretary of the Interior to carry out
the provisions of section 109{a) (c) of the Federal Coal Mine
Health and Safety Act of 1969 which provided, in pertinent part,
as follows:
(3) A civil penalty shall be assessed by the
Secretary only after the person charged with a violation under this Act has been given an opportunity
for a public hearing and the Secretary has determined,
by decision incorporating his findings of fact therein, that a violation did occur, and the amount of the
penalty which is warranted, and incorporating, when
appropriate, an order therein requiring that the penalty be paid. * * *
The Secretary devised a formula for applying the six criteria
listed in section 109(a) (1) of the 1969 Act. Those same criteria
are also listed in section llO(i) of the 1977 Act. Operators
challenged the penalties proposed by the Secretary under the
1969 Act on the ground that he had not made the findings required
by section 109(a) (3), supra. Several circuit courts considered
the matter.
The District of Columbia Circuit, in National
Independent Coal Operators' Assn. v. Morton, 494 F.2d 987 (1974),
affirmed the method employed by the Secretary of the Interior
under which the Secretary proposed penalties without making
formal findings as to the six criteria, but the regulations permitted the operator to request a hearing before an administrative
law judge who would make findings as to the six criteria. The
court held that the operator was afforded due process under the
regulations then in effect.
The Third Circuit, in Morton v.
Delta Mining, Inc., 495 F.2d 38 (1974), reversed the method
being used by the Secretary of the Interior because the court
believed that section 109(a) (3) required the Secretary to make
findings as to the six criteria when he proposed civil penalties.
The Supreme Court affirmed the D. c. Circuit's decision in
National Independent Coal Operators' Assn. v. Kleppe, 423 U.S.
388 (1976), and reversed the Third Circuit's decision in Kleppe

1092

v. Delta Mining, Inc., 423 U.S. 403 (1976).
In each case the
Court held that the Secretary of the Interior haa proceeded under a v~lid regulatory scheme which permitted an operator to request a hearing and obtain a decision making the findings required by section 109(a) (c) of the 1969 Act.
The legislative history of the 1977 Act shows that Congress
was displeased with the enforcement of the 1969 Act with respect
to assessment and collection of civil penalties. For example,
Senate Report No. 95-181, at page 41 (or page 629 of the Legislative History of the Federal Mine Safety and Health Act of 1977
prepared for the Subcommittee on Labor of the Committee on Human
Resources) stated as follows:
·
In overseeing the enforcement of the Coal Act
the Committee has found that civil penalty assessments are generally too low, and when combined with
the difficulties being encountered in collection of
assessed penalties (to be discussed, infra), the
effect of the current enforcement is to eliminate
to a considerable extent, the inducement to comply
with the Act or the standards, which was the intention of the civil penalty system.
The Report thereafter reviewed the civil penalty system as
it was administered by the Secretary of the Interior and found
that the procedures for assessing penalties needed revision to
prevent the parties from settling cases in which hearings had
been requested by agreement of the parties to reduce proposed
penalties by an excessive amount.
The Report also was concerned
about undue delay in completing civil penalty cases because of
the procedure in the 1969 Act under which an operator could obtain de novo hearings in the district courts.
Report No. 95-181
outlined the amendments to the 1969 Act which were deemed necessary to eliminate the defects in the civil penalty system. On
page 45 (or page 633 of the Legislative History), the Report
states as follows:
To remedy this situation, Section [llO(k)J
provides that a penalty once proposed and contested before the Commission may not be compromised except with the approval of the Commission.
Similarly, under Section lll(k) a penalty assessment which has become the final order of the Commission may not be compromised except with the
approval of the Court. By imposing these requirements, the Committee intends to assure that the
abuses involved in the unwarranted lowering of
penalties as a result of off-the-record negotiations are avoided.
It is intended that the Commission and the Courts will assure that the public
interest is adequately protected before approval
of any reduction in penalties.

1093

The Report further states on page 45 that:

1

S. 717 provides a number of means by which
the method of collecting penalties is streamlined.
Section [llO(i)] provides that the civil p~nalties
are to be assessed by the Mine Safety and Health
Review Commission rather than by the Secretary as
prevails under the Coal Act (Sec. 109(a) (3)). * * *
The discussion above of the changes which Congress made in
amending the 1969 Act shows that Congress did not intend for
the Commission to be bound by any formulas which the Secretary
of Labor may promulgate for the purpose of proposing 2/ penalties under section 105(a) of the Act. Section llO(i)-specifically provides for the Commission to assess all civil penalties
under the Act and section llO(i) specifically states that in
assessing civil penalties, the Commission "shall consider" the
six criteria. On the other hand, section llO(i) provides that
"* * * [i]n proposing civil penalties under this Act, the Secretary may rely upon a summary review of the information available
to him and shall not be required to make findings of fact concerning the above factors."
It is clear from the provisions of the 1977 Act that the
Secretary of Labor has authority under the Act only for proposing penalties.
If an operator does not agree with the assessment procedures promulgated by the Secretary in either section
100.3 or section 100.4, he may ask for a hearing before the
Commission. Once the Commission or one of its judges holds a
hearing, the operator is bound by the results of .that hearing
and the Commission and its judges are required to assess civil
penalties under the provisions of section llO(i) of the Act regardless of what the Secretary may have proposed in the way of
penalties prior to the time the hearing is held. Moreover, the
operator must take his chances, as any litigant does, as to
whether he will be any better off after he seeks a hearing than·
he would have been if he had paid the Secretary's proposed
assessments based on any provision of Part 100.
Congress specifically amended the 1969 Act to require that
the parties obtain the Commission's approval of any settlement
reached after an operator has requested a hearing before the
Commission.
Since the Act was specifically amended to prevent
undue lowering of civil penalties through settlement negotiations
or otherwise, it is certain that Congress did not intend for the
2/ See the Commission's discussion of the Secretary's role of
proposing penalties versus the Commission's role of assessing
penalties in MSHA on behalf of Milton Bailey, 5 FMSHRC 2042
(1983).

1094

commission's hands to be tied in approving or dis~pproving settlements, or in assessing penalties, simply because the Secretary
has promulgated a provision for determining a so-called single
penalty assessment of $20 in section 100.4 which only refers to
two of the six criteria which the Commission is required to use
in assessing civil penalties.
•
For the reasons given above, I reject USSM's arguments to
the effect that I am bound by the provisions of 30 C.F.R. § 100.4.
I shall hereinafter assess a penalty for the violation of section
103{f) of the Act alleged in Citation No. 2024280 under the six
criteria as required by section llO{i) of the Act.
Consideration of the Six Criteria
The parties entered into some stipulations at the hearing
held in Docket No. WEVA 82-390-R. Those stipulations were that
USSM is subject to the Act, that I have jurisdiction to hear and
decide the issues, and that USSM is a large operator {Tr. 92).
Since it has been stipulated that USSM is a large operator, I
find that any penalties to be assessed in this proceeding should
be in an upper range of magnitude to the extent that they are
based on the criterion of the size of USSM's business.
Ability To Pay Penalties
USSM did not introduce any evidence pertaining to its financial condition. The Commission held in the Sellersburg case,
supra, that if an operator fails to present evidence concerning
its financial condition, a judge may presume that the operator's
ability to continue in business will not be adversely affected
by the payment of civil penalties. Therefore, it will be unnecessary to reduce any penalties otherwise assessable under the
other criteria on the basis of a finding that payment of penalties might cause USSM to discontinue in business because the
lack of any financial evidence in this proceeding permits me to
conclude that payment of penalties will not cause USSM to discontinue in business.
History of Previous Violations
It has been my practice to consider under the criterion of
history of previous violations the question of whether the operator in a given proceeding has previously violated the same section of the regulations or Act which is before me for assessment
of a penalty. The legislative history discussed above shows
that Congress agrees that such a practice is acceptable {History,
p. 631). USSM's counsel stated at the hearing that USSM has not
previously violated section 103{f) of the Act {Tr. 92). Therefore, the penalty to be assessed for the violation of section
103{f) should reflect consideration of USSM's lack of a history
of having previously violated section 103{f) of the Act.

1095

Good-Faith Effort To Achieve Rapid Compliance
Citation No. 2024280 was written at 8:45 a.m. on August 18,
1982, and provided a termination due date of August 18, 1982, at
9:15 a.m.
The inspector terminated the citatio~ at 9:15 a.m.
and gave as the reason for the termination that USSM had agreed
to allow Willis to accompany him (Exh. 1). Willis testified
that Sinozich, on whom the citation had been served, waited for
about 32 or 33 minutes before calling the main office to find
out whether Sinozich should allow Willis to enter the mine with
the inspector (Tr. 34). Sinozich testified that he called his
supervisor, Carl Peters, after the citation was issued, but
Sinozich did not state how long he waited after the citation was
issued before calling Peters (Tr. 66). Sinozich stated, however,
that Peters told him he would call Sinozich back in a few minutes
to give him an answer.
It is possible that the 32- or 33-minute
period mentioned by Willis was running while Sinozich waited to
get an answer from Peters. Since Inspector Ingram terminated
the citation at 9:15 a.m., which was the time period originally
given for abatement, I believe that the preponderance of the
evidence supports a finding that USSM showed a good-faith effort
to achieve compliance.
It has been my practice to increase a penalty otherwise
assessable under the other criteria if there is evidence in a
given case to show that the operator failed to make a timely
effort to abate a given violation. On the other hand, if an
operator demonstrates some outstanding effort to abate an alleged violation, I normally reduce the penalty otherwise assessable under the other criteria.
If the operator takes no unusual
action, but abates the violation within the time given by the
inspector, I neither raise nor lower the penalty otherwise
assessable under the other criteria. Since USSM demonstrated a
normal effort to achieve compliance, the penalty will not be
raised or lowered under the criterion of good-faith abatement.
Negligence
The evidence shows that the inspector was sufficiently in
doubt about whether USSM's refusal to allow Willis to accompany
him was a violation of section 103(f), that it was necessary
for the inspector tq call his supervisor for guidance (Tr. 10).
Both Sinozich and Peters maintained throughout the hearing that
Willis was not entitled to be a miners' representative because
of his failure to give advance notice that he was coming (Tr.
64; 81; 85).
I have found above in my decision in Docket No.
WEVA 82-390-R that Peters was aware of Willis' interest in the
elimination of the respirable-dust problem in the longwall section and that Peters should not have been greatly surprised when
Willis appeared at the mine on August 18, 1982, for the purpose
of accompanying the inspector.

109S

On the other hand, the union is not entirely without fault
in bringing about the state of confusion which had a great deal
to do with Sinozich's and Peters' original decision to deny
Willis permission to enter the mine as the miners' representa~
tive.
The safety committee had called Willis on the evening of
August 17 to ask Willis to come to the mine to a€company the inspector if the inspector appeared as they anticipated. Yet,
neither the safety committee nor Willis bothered to provide any
of USSM's management personnel with any notice of any kind until the safety committee on the morning of August 18 advised
the inspector that Willis was the miners' representative to accompany the inspector. The safety committeeman, Carter, could
not recall any previous time when one of UMWA's safety inspectors
had been called to the mine to act as the miners' representative
for purposes of accompanying an inspector (Tr. 28). Therefore,
the safety committee knew that it was going to follow a procedure
which was uncommon and a large part, if not all, of the confusion
which resulted when Willis made his previously unannounced appearance 3/ on the morning of August 18, 1982, could have been
avoided if the safety committee had at least explained on the
evening of August 17 that it was going to select Willis as the
miners' representative to accompany the inspector if the inspector made an appearance on August 18 as the safety committee expected. Moreover, Samms created additional confusion by announcing that he was going in with the inspection party under the provisions of West Virginia law (Tr. 18; 33). That was an unusual
act on the part of the safety committee and could have affected
Sinozich's ability to consider the issues in an atmosphere conducive to calm and rational decision-making.
Based on the considerations discussed above, I find that
USSM's management was dealing with some new circumstances and
acted in a way which can hardly be categorized as negligent,
especially since both Sinozich and Peters believed that they
were taking actions which were entirely in compliance with section 103(f) of the Act. Therefore, the penalty otherwise assessable under the other criteria will not be increased under the
criterion of negligence.
3/ I am not holding that section 103(f) of the Act requires the
safety committee to give USSM advance notice as to the identity
of the miners' representative.
I am simply pointing out that·
USSM's management might have acted differently in this case if
it had had some advance time within which to consider the fact
that the safety committee intended to select a miners' representative other than the ones who were normally chosen for the purpose of accompanying the inspectors~ Since USSM claims no right
whatsoever to participate in UMWA's selection of miners' representatives (Tr. 86), I cannot see any advantage in the safety
committee's failure to give USSM as much notice as possible of
the fact that it is planning to choose a miners' representative
other than the one who is normally selected.

109'7

Gravity
It ·has been unnecessary to consider the arguments in the
parties' briefs in dealing with the five criteria discussed
above because the Secretary's brief pertaining to the violation
of section 103(f) does not discuss the penalty lssues at all
and USSM's brief simply contends that I am bound to assess a
$20 penalty under section 100.4. USSM's arguments about section 100.4 have already been considered above.
UMWA's brief
(p. 9) does discuss the penalty issues by correctly arguing
that I am not bound by section 100.4 of the regulations. UMWA's
brief also argues that a penalty in an amount higher than $20
ought to be assessed because of USSM's having delayed the commencement of the inspection.
The record does not specifically show that Inspector Ingram would have gone underground any sooner than he did if he
had not been confronted with USSM's refusal to allow Willis to
go underground to accompany him. The record shows that the inspector went about his normal duties of placing respirabledust pumps on three miners on the longwall section (Tr. 9).
The miners on the production shift went underground at the
usual time and the longwall section was producing coal at the
time the inspection crew arrived in the longwall section. Since
the respirable-dust samples obtained on August 18 were valid and
showed that the longwall section was in compliance with the
respirable-dust standards (Tr. 78), the delay, if any, which
might have occurred in the time when the inspection crew went
underground, does not seem to have adversely affected the inspector's work or Willis' ability to examine the conditions in
the longwall section. Willis claims to have seen the engineering changes which were being made in the water sprays and claims
to have made at least two suggestions pertaining to control of
respirable dust (Tr. 36-37). In such circumstances, the record
does not support a finding that anyone was adversely affected by
the fact that the inspector may not have gone underground as
soon as he would have if it had not been necessary to issue a
citation and wait about half an hour for the citation to be
abated.
The criterion of gravity, therefore, must be considered
primarily from the standpoint of whether USSM's initial refusal
to allow Willis to go underground caused the union to be frustrated prospectively in its efforts to provide a miners' representative to accompany inspectors under section 103(f).
In Consolidation Coal Co., Docket Nos. PENN 82-221-R and
PENN 82-259, issued July 28, 1983, I assessed a penalty of $100
for a violation of section 103(f), but in that case, Consol
deliberately refused to pay a miners' representative for accompanying an inspector during a spot inspection and did so for the

1098

sole purpose of bringing that issue before a cirguit court other
than the District of Columbia Circuit which had already decided
the issue adversely to Consol's position.
There was some negligence in the Consol case, as compared with no negligence heretofore found in this case, because U.SSM was dealing with a novel
situation which arose unexpectedly, whereas Consol deliberately
refused to pay a miners' representative in order to create a
case for purpose of perfecting an appeal to a circuit court.
There was also a greater degree of gravity in the Consol case
than there is in this case because USSM paid Samms for going
underground at the same time USSM was contesting Willis' right
to go underground with Samms and the inspector. Finally, Consol
was seeking a reinterpretation of section 103(f) with respect to
an issue which had already been decided by the D. C. Circuit and
as to which the Supreme Court had already denied a petition for
certiorari, whereas USSM is seeking an interpretation of section
103(f) with respect to an issue which has not been specifically
decided by the Commission, that is, whether the safety committee
has to give USSM any advance notice before selecting a UMWA
safety inspector (who is a full-time UMWA employee) as the
miners' representative to accompany an inspector pursuant to
section 103(f).
Assessment of Penalty
The discussion above shows that a large operator is involved,
that the payment of penalties will not cause the operator to discontinue in business, that the operator demonstrated a good-faith
effort to achieve compliance, that the operator has no history of
a previous violation of section 103(f), that the violation was
associated with no negligence, and that the violation was associated with a very low degree of gravity.
Therefore, a civil
penalty of $25 will hereinafter be assessed for the violation of
section 103(f) alleged in Citation No. 2024280 dated August 18,
1982.
Docket Nos. WEVA 83-82 and WEVA 83-95
The petition for assessment of civil penalty filed in Docket No. WEVA 83-82 seeks to have a penalty assessed for a single
alleged violation of 30 C.F.R. § 70.101 (Tr. 205). The petition
for assessment of civil penalty filed in Docket No. WEVA 83-95
seeks to have a penalty assessed for the violation of section
103(f) of the Act which has already been considered in the preceding portion of this decision.
The petition for assessment
of civil penalty filed in Docket No. WEVA 83-95 also seeks
assessment of a civil penalty for an alleged violation of section 70.101.
The primary difference between the two alleged
violations of section 70.101 is that the violation alleged in
Docket No. WEVA 83-82 pertains to mechanized mining Unit No.
002 in USSM's Shawnee Mine, while the violation alleged in Docket No. WEVA 83-95 pertains to mechanized mining Unit No. 024
in USSM's Morton Mine.

109g

Findings of Fact
The testimony of the witnesses and the documentary evidence
submitted by the parties support the following findings of fact.
Since this is a consolidated proceeding, the findings here will
be numbered in sequence with the 13- findings of fact made in the
preceding portion of this decision.
14. On October 20, 1982, an MSHA inspector issued Citation
No. 9914583, pursuant to section 104(a} of the Act, alleging
that USSM had violated section 70.101 in its Shawnee Mine because (Tr. 207; Exh. 20}:
[b]ased on the results of five valid dust samples collected by the operator, the average concentration of
respirable dust in the working environment of the
designated occupation in mechanized mining· unit 002-0
was 1.7 milligrams which exceeded the applicable
limit of 1.4 milligrams. Management shall take corrective actions to lower the respirable dust and then
sample each production shift until five valid samples
are taken and submitted.
15. On November 22, 1982, an MSHA inspector issued a subsequent action sheet which stated (Tr. 209; Exh. 23}:
[b]ased on five valid samples, the respirable dust
concentration on the [d]esignated occupation in mechanized mining unit 002-0 is within the applicable
limit of 1.4 milligrams.
16. The respirable-dust standard for the 002 Unit had
been reduced to 1.4 from the normal standard of 2.0 milligrams
per cubic meter of air under the provisions of section 70.101
which provides as follows:
§

70.101

Respirable dust standard when quartz is present.

When the respirable dust in the mine atmosphere
of the active workings contains more than 5 percent
quartz, the operator shall continuously maintain the
average concentration of respirable dust in .the mine
atmosphere during each shift to which each miner in
the active workings is exposed at or below a concentration of respirable dust, expressed in milligrams
per cubic meter of air as measured with an approved
sampling device and in terms of an equivalent concentration determined in accordance with § 70.206
(Approved sampling devices; equivalent concentrations} , computed by dividing the percent of quartz
into the number 10.

1100

Example: The respirable dust associated with a
mechanized mining unit or a designated area ln a
mine contains quartz in the amount of 20%.
Therefore, the average concentration of respirable dust
in the mine atmosphere associated with that mechanized mining unit or designated area shall be continuously maintained at or below 0.5 milligrams of
respirable dust per cubic meter of air (10/20 =
0.5 mg/m3).
USSM had been notified on April 27, 1982, pursuant to section
70.101, that the respirable-dust standard for the 002 Unit in
the Shawnee Mine had been reduced to 1.4 milligrams per cubic
meter of air on the basis of a quartz analysis showing that the
mine atmosphere contained 7 percent quartz (10/7 = 1.4 mg/m3)"
(Tr. 223; Exh. 36).
17. On September 1, 1982, an MSHA inspector issued Citation No. 9917507, pursuant to section 104(a) of the Act, alleging that USSM had violated section 70.101 in its Morton Mine because (Tr. 108; Exh. 4):
[b]ased on the results of five valid dust samples
collected by the operator, the average con~entration
of respirable dust in the working environment of the
designated occupation in mechanized mining unit 024-0
was 1.9 milligrams which exceeded the applicable
limit of 1.6 milligrams. Management shall take corrective actions to lower the respirable dust and then
sample each production shift until five valid samples
are taken and submitted.
18. On November 29, 1982, an MSHA inspector issued a subsequent action sheet which stated (Tr. 114; Exh. 8):
[b]ased on five valid samples, the respirable dust
concentration on the designated occupation in mechanized mining unit 024-0 is within the applicable
limit of 1.6-milligrams.
19. On October 26, 1981, USSM had been notified that the
respirable-dust standard for the 024 Unit in the Morton Mine had
been reduced to 1.6 milligrams per cubic meter of air on the
basis of a quartz analysis showing that the mine atmosphere contained 6 percent quartz (10/6 = 1.6 mg/m3) (Tr. 108; 136; Exh.
11).
20. MSHA normally places respirable-dust-sampling devices
on persons in each mechanized mining unit at least once each
year (Tr. 103). The samples are weighed in MSHA's field offices
(Tr. 104) and if there is a weight gain of .5 milligrams for

1101

samples obtained with an MSA sampler or .8 milligrams for samples obtained with a Bendix sampler, the samples are sent to the
Pittsburgh Technical Support Center for quartz analysis {Tr.
106; 244; 249).
21. USSM is critical of MSHA's quartz-samp:ling program because it argues that mining conditions change on a daily basis
{Tr. 522) and that the amount of quartz in the mine atmosphere
changes constantly {Tr. 181). Therefore, USSM declares that it
is unrealistic for MSHA to fix a respirable-dust standard for
an entire year based on a quartz analysis of a single respirabledust sample. MSHA defends its once-a-year sampling procedure by
stating that MSHA has examined data collected over a 6-to-8-year
period and has found that in 80 to 81 percent of the cases,
where repeat samples were analyzed for quartz. content, the re~
peat samples showed a quartz content equal to or greater than
the quartz content revealed by the original sample {Tr. 246).
22. MSHA also claims that it sent all operators a notice
dated March 10, 1981 {Exh. 39), which advised them that the new
quartz standard had been put into effect and that notice advised the operators that they could request a repeat survey if
they believed that there was less quartz in the environment
than existed at the time the reduced standard was put into
effect. MSHA also defends the fairness of its sampling program
by noting that if the reduction in the respirable-dust standard
applies to quartz analysis for a single work position, the reduced standard will be applied only to that work position {Tr.
249) •
23. USSM also objects to MSHA's quartz-sampling program
because the quartz analyses are based entirely on samples taken
by MSHA inspectors and complains that MSHA will not perform a
quartz analysis on any of the samples taken by the operator
{Tr. 194-195; 225-228). USSM also objects that it is not specifically advised when MSHA plans to take samples for quartz
analysis and that the inspectors themselves cannot tell USSM
for certain which of the samples they are taking on a given day
will be analyzed for quartz {Tr. 314). Moreover, USSM claims
that the inspectors do not know what the exact mining parameters
are at the time the samples are being taken and that when USSM
receives a notice that a quartz analysis of a given sample has
required the respirable-dust standard to be reduced because of
the percentage of quartz in the mine atmosphere, USSM cannot
find out what specific sample was analyzed for that particular
reduction of the respirable-dust standard (Tr. 315).
24. MSHA defends its refusal to use the operator's samples
for quartz analysis primarily by arguing that the operator submits samples on a bimonthly basis and that if the respirabledust standard is adjusted upward or downward with bimonthly

1102

frequency, MSHA would not have control over the long-term variation in respirable dust or quartz levels. MSHA contends that
frequent changes in the standard would work to the detriment of
miners because the particular respirable-dust control plan
would never be adjusted to the levels that would insure that
the miners were protected from quartz exposures ~(Tr. 253; 282).
One MSHA inspector testified that on one occasion when he was
obtaining respirable-dust samples, USSM's section foreman controlled the mining sequence so as to avoid extracting from 18 to
24 inches of rock normally taken in an entry where extra height
was needed for the purpose of placing longwall mining equipment
in that entry (Tr. 351).
25. One of USSM's witnesses testified that USSM requested
that repeat samples for quartz analysis be taken at its No. 9
Mine. When the inspector came to the No. 9 Mine to obtain the
samples, USSM was considerably perturbed because the inspector
asked the persons wearing the samplers to get into as much dust
as possible so that the inspector would be able to acquire
enough weight for a quartz analysis without his having to make
additional trips to the No. 9 Mine for that purpose. USSM's
witness stated, however, that the portion of the No. 9 Mine,
where the repeat sampling was performed, was closed for economic
reasons and.that the results of the request for resampling were
never reported to USSM (Tr. 535; 538; 544). USSM does not claim
to have made any requests for repeat sampling for quartz with
respect to the 002 Unit in the Shawnee Mine or the 024 Unit in
the Morton Mine which are involved in this proceeding (Tr. 529;
538) •
26. Quartz analyses of samples taken in the Shawnee Mine
on April 12 and April 13, 1982, showed that the mine atmosphere
contained 15-percent quartz on one day and 7-percent quartz on
the next day (Tr. 229-230). Therefore, the quartz concentration
may vary as much as 8 percent within a 2-day period. As a result of the two aforesaid quartz analyses, USSM received notification on April 27, 1982, that the respirable-dust standard had
been reduced to .6 milligrams per cubic meter because of the 15percent quartz analysis and to 1.4 milligrams per cubic meter
because of the 7-percent quartz analysis (Exhs. 35 and 36). The
7-percent quartz analysis was performed on April 22, 1982, while
the 15-percent quartz analysis was performed on April 20, 1982.
Therefore, USSM was allowed to utilize the 1.4 milligram standard because that standard was based on the last information
available to MSHA (Tr. 511).
27. At least one of USSM's witnesses conceded during crossexamination that USSM has enough knowledge about the conditions
in its mines to be able to determine the mining parameters which
are in existence on any given day when MSHA inspectors are

1103

obtaining respirable-dust samples (Tr. 526~527).
The section
foremen have eyes in their heads and cannot possibly be unaware
of the fa.ct that an MSHA inspector has placed respirable-dust
pumps on the members of their crew on a given day (Tr. 345).
28. Although USSM's cross-examination of MSHA's inspectors
raised the generalized objections to MSHA's respirable-dust
program which have been covered above, the primary contention
raised by USSM in the respirable-dust aspect of this proceeding
is that exposure for 2 months to 1.7 milligrams of respirable
dust per cubic meter of air on a standard of 1.4 milligrams in
Docket No. WEVA 83-82, or exposure for 2 months to 1.9 milligrams
of respirable dust per cubic meter of air on a standard of 1.6
milligrams in Docket No. WEVA 83-95, is not a significant and
substantial violation as the term "significant and substantial"
has been defined by the Commission in National Gypsum Co., 3
FMSHRC 822 (1981) (Tr. 416; 496-498). MSHA presented as witnesses the inspectors who classified the respirable-dust violations described in the preceding sentence as being significant
and substantial and another witness who considered the violations to be significant and substantial because excessive dust
causes an injury which is permanently disabling, because each
exposure is additive, and because the dust ingested remains in
the lungs, but that testimony was largely based on what the witnesses had read or heard (Tr. 155; 207; 329-331; Exhs. 4, 15,
and 20).
29. The most persuasive testimony with respect to whether
the respirable-dust violations alleged in Citation Nos. 9917507
and 9914583 are significant and substantial was given by Dr.
Thomas Richards who is an MD employed by the National Institute
of Occupational Safety and Health (NIOSH) (Tr. 411). He works
in NIOSH's Division of Respiratory Diseases and his experience
has been in examining workers who have been exposed to various
types of conditions which produce pulmonary problems (Tr. 412413). He said that the u. S. Public Health Service has identified silicosis as one of the major diseases which needs to be
prevented and has set a goal of 1985 as the year after which
there should be no new cases of silicosis developing in the
United States because it is a preventable disease (Tr. 414).
30.
Richards testified that quartz and silica are terms
which may be used interchangably. When silica gets into the
lungs, it causes scarring or fibrosis.
Over a period of time,
exposure to silica can be predicted to cause a person to develop silicosis. When that condition becomes severe, it is
called progressive massive fibrosis and can cause premature
death.
Damage caused by the fibrosis, once it occurs, is irreversible and there is no treatment for it.
There is a doseand-response relationship.
The frequency of the exposure and
the concentration of the dust increases the risk of developing
silicosis (Tr. 424-425). As an extreme example of what can

1104

happen when a person is exposed to almost pure silica dust,
Richards referred to a man who had a job requiring him to take
24 bags of silica-bearing material and pour them into a drum.
He did that for 1 hour on 60 occasions per year. After 2 years,
he developed symptoms of silicosis .and in another.2 years he
died (Tr. 425}.
31. Richards testified that coal workers' pneumoconiosis
from pure carbonaceous dust can cause progressive massive fibrosis and result in early death. He said that coal workers are
also exposed to silica coming from layers of rock above and below a coal seam or between coal seams which are mined simultaneously. Shale, for example, is from 40 to 60 percent silica and
sandstone can be even higher in silica content than shale. He
stated that autopsy surveys show that up to 18 percent of
persons who have developed coal workers' pneumoconiosis show
nodules in their lungs which are typical of silica exposure
(Tr • 4 2 6- 4 2 7 } .
32. Richards frankly admitted that he does not know for
certain that there is a significant and substantial risk to a
miner for a single brief exposure to respirable dust in excess
of the standard given in section 70.101, but he said that the
available medical evidence and logic supports a conclusion that
a single exposure has a significant and substantial adverse
effect on a miner's health. He said that silica in the air is
breathed in and out to some extent and some of it may be coughed
up, but some of i t will go down to the distal portions of the
lungs, the alveoli, where the scarring process is initiated.
He explained that there is a dose response and that he did not
know the low end of the response, but there is a definite additive effect in each daily dose so that, at some point, a miner
has to pay the price of the added effect.
Richards said there
was no medical proof to show that a single exposure caused no
problem any more than there is medical proof to show that a
single exposure produces a definite measurable, adverse effect
(Tr. 435-436}. Richards said that "[s]ilicosis is a man-made
disease, and if men didn't go down in the mines to work, they
wouldn't have it. So, I think they ought to be very strict on
the rules on it" (Tr. 500).
Consideration of Arguments
USSM's brief (pp. 2-3} states that the issues raised in
Docket Nos. WEVA 83-82 and WEVA 83-95 are whether the violations
of section 70 .101 alleged by MSHA we.re significant and substantial and what penalties are appropriate for the conditions described in Citation Nos. 9914583 and 9917507 (Finding Nos. 14
and 17, supra}.
It should be noted that Judge Kennedy's decision in
Steel Mining Co., Inc., 5 FMSHRC 46 (1983), held that a

1105

u. s.

respirable-dust violation involving a quartz content of 11 percent was a significant and substantial violation. ' USSM did not
file a petition for discretionary review of Judge Kennedy's
excellent decision although he decided most of the same issues
raised in this proceeding. For example, he held, contrary to
USSM's contentions, that MSHA's use.of a single annual sample
for determining the quartz content in the mine atmosphere is in
accordance with the procedure established by the Act. Judge
Kennedy's U. S. Steel decision also contains a superb explanation of MSHA 1 s respirable-dust program along with a discussion
of the statutory requirements under which MSHA's program is
administered.
Judge Broderick's decision in U. S. Steel Mining Co., Inc.,
5 FMSHRC 1334 (1983) (petition for discretionary review granted
July 27, 1983), held that a respirable-dust violation involving
a quartz content of 7 percent was a significant and substantial
violation.
Judge Broderick's decision also appropriately observed (5 FMSHRC at 1336):

* * * I should note that the precise issue raised by
Respondent in this case was raised by it in the case
of Secretary v. U. S. Steel Mining Co., Inc., supra,
before Judge Kennedy. A decision by a tribunal of
competent jurisdiction is res judicata in a subsequent proceeding between the same parties involving
the same issue.
46 Am. Jur. Judgments§ 397 (1969);
lB Moore·'s Federal Practice § 0.405 (1982). Factual
differences not essential to the prior judgment do
not render the doctrine inapplicable. Montana v.
United States, 440 U.S. 147 (1979); Hicks v. Quaker
Oats Co., 662 F.2d 1158 (5th Cir. 1981). Respondent
had a full and fair opportunity to litigate this
issue before Judge Kennedy and to petition the Commission for review.
Based on the doctrine of res
judicata, it should be precluded from relitigating
it here.
The government, however, did not raise this
issue, and the case was heard on the merits. My
conclusion here is based on a consideration of the
evidence in the case before me.
Respondent should
not be permitted to endlessly raise this issue, however.
I accept and adopt the analysis and conclusions
of Judge Kennedy that exposure to respirable dust
with quartz content that exceeds 100 micrograms per
cubic meter of air constitutes a significant risk of
a serious health hazard. See also Consolidation Coal
Co. v. Secretary, 5 FMSHRC 378 (1983) {ALJ).
All of the averments made by Judge Broderick are also true in
this proceeding. The· Secretary's counsel did not object in this
proceeding to a third litigation by USSM of the issue of whether

1106

a respirable-dust violation based upon a quartz ~ontent of more
than 5 percent constitutes a significant and substantial violation under the definition of that term set forth by the Commission in its National Gypsum decision (Finding No. 28, supra):
Like Judge Broderick, I hereinafter find, on the.basis of the
evidence presented in this proceeding, that the~violations of
section 70.101 alleged in Citation Nos. 9914583 and 9917507
were significant and substantial as that term has been defined
by the Commission in its National Gypsum decision.
USSM's Claims of Bias or Unfairness
Although USSM's brief (p. 3) begins its arguments with a
contention that the Secretary failed to meet his burden of proof
in this proceeding by establishing that respirable-dust violations are reasonably likely to result in a reasonably serious
injury, pursuant to the Commission's National Gypsum test of
significant and substantial violations, USSM continually makes
allegations about the unfairness of MSHA's respirable-dust
sampling program. The record, as a whole, shows that USSM's
claims of unfairness have no merit.
USSM claims, for example, that MSHA takes samples of
respirable dust for quartz analysis under conditions which it
will not disclose to USSM (Br., p. 3). USSM cites transcript
page 315 in support of that allegation. On that page MSHA's
witness Nesbit conceded that USSM had no way to know which
sample an inspector is taking will be analyzed for quartz, but
the truth of the matter is that the inspector does not know,
when he is taking a sample, whether it will be analyzed for
quartz either, because the sample has to be weighed in the
field office's laboratory to determine if the weight gain is
as much as .5 or .8 milligrams.
If the required weight gain
is shown to be present, the sample is sent to Pittsburgh for
quartz analysis.
If. the analysis shows that the mine atmosphere contained more than 5 percent quartz, the respirable-dust
standard is reduced accordingly (Finding Nos. 16, 19, and 20,
supra).
USSM's unequivocal statement (Br., p. 3) that MSHA "* * *
will not disclose to the operator" the conditions under which
a sample is taken is not supported by the record. The inspec~
tors fill out a Form 2000-86 when they are taking respirabledust samples. Those forms show the mining conditions when
samples are being taken (Exhs. 12 a~d 33). USSM's crossexamination of MSHA's witness Nesbit tried to get him to concede that MSHA would not make those forms available, but he
repeatedly stated that it was not MSHA '.s policy to deny operators' requests for those forms (Tr. 311; 313-314). Moreover,
the inspector who took the respirable-dust sample which caused
the respirable-dust standard to be reduced in the 024 Unit of

the Morton Mine because of the presence of 6 perc~nt quartz, explained exactly what conditions existed on the section at the
time he was taking that respirable-dust sample. He even recalled
that the section foreman declined to cut coal in th~ entry where
from 18 to 24 inches of rock are taken for purpo~es of obtaining
increased height for the use of highwall mining equipment (Finding No. 24, supra). His statements, together with those of witness Nesbit, show that USSM's section foremen know when respirabledust samples are being taken by an MSHA inspector (Tr. 345).
USSM complains that MSHA takes only one sample a year and
requires USSM to maintain a reduced respirable-dust standard on
the basis of that single sample for an entire year (USSM's Br.,
p. 3).
If MSHA takes only a single sample once a year to obtain
a quartz analysis, the taking of that sample would have to be
such an infrequent occurrence that USSM could easily have its
section foremen write down all of the mining parameters which
exist when sampling is occurring. Thereafter, if USSM is advised that its respirable-dust standard is being reduced because
of the presence of ·more than 5 percent quartz, it could obtain
from the inspector the date on which the sample analyzed for
quartz was obtained and could determine from its own records
exactly what conditions existed on the day the sample was taken.
USSM's brief (p. 5) also contends that MSHA will not honor
its requests for the taking of additional samples for quartz
analysis, but the only testimony in the record which supports
that allegation is contained in a question asked by USSM's
counsel of MSHA's witness Nesbit (Tr. 310):

Q Isn't i t true that you heard testimony in
a previous case in which u. S. Steel Mines had requested MSHA to come out and re-do quartz sampling
on a number of occasions and were turned down?
A

Yes, I did.

Despite witness Nesbit's affirmative answer to the question
quoted above, he stated that it was MSHA's policy to take repeat
samples for quartz analysis when the operator requests that repeat sampling be done (Tr. 310). While USSM did present some
testimony in this proceeding about MSHA's performing repeat
sampling at USSM's request, that testimony pertained to a section in USSM's No. 9 Mine. Moreover, the request for resampling
was granted, but USSM was shocked because the inspector who took
the samples requested that the miners wearing samplers get into
as much dust as possible so that the inspector would be able to
get a weight gain of at least .5 milligrams and thereby avoid
having to come back for additional samples on successive days
(Finding Nos. 20 and 25, supra).

1108

USSM's witness who made that statement did n,pt know the
outcome of his complaint to his own supervisory personnel with
respect to the inspector's instructions about getting into as
much dust as possible.
I doubt seriously that MSHA would condone the inspector's request that miners get in~o· as much dust
as possible, but if USSM wants me to make a finding that MSHA
refused to sample on the basis of the aforementioned testimony,
I need something more certain than the equivocal testimony
presented by USSM in support of its claim that MSHA has refused
to take repeat samples for quartz analysis, especially since
USSM did not claim that it asked for repeat sampling to be done
in the 024 and 002 Units which are involved in this proceeding
(Finding No. 25, supra).
Judge Broderick's decision in u. S. Steel Mining Co., Inc.,
5 FMSHRC 1334, 1335 (1983), contains a finding which shows that
MSHA took a sample for determining quartz content at USSM's
Maple Creek No. 1 Mine on October 26, 1981, and took another
sample for quartz analysis on February 10, 1982, and then, in
response to USSM's request, conducted resampling for quartz
analysis from February 22 to March 1, 1982. MSHA's witness
Nesbit did not agree during cross-examination by USSM that MSHA
had refused to provide USSM with information as to the conditions which existed when respirable-dust samples are obtained
and he also refused to agree with USSM that MSHA has a practice
of denying requests for information or resampling (Tr. 313-314).
My review of the record shows, therefore, that MSHA has
granted some of USSM's requests for resampling for quartz
analysis and the finding in Judge Broderick's decision shows
that MSHA responded to USSM's request for resampling. As opposed
to the information showing that MSHA does grant requests for resampling, the record contains a single question, answered in the
affirmative, to the effect that in some other unidentified proceeding someone seems to have testified that MSHA denied one or
more of USSM's requests for resampling for quartz.
In such circumstances, the preponderance of the evidence fails to support
USSM's claim that its requests for resampling have been denied
in a manner to justify a finding on the basis of the record in
this case that MSHA's quartz-sampling program is so unfair that
it should be found to be invalid.
USSM's brief (p. 5) also asserts that MSHA's respirabledust sampling program is erratic and inaccurate because respirable-dust samples taken on successive days showed that the mine
atmosphere contained 15 percent quartz when sampled on one day
and 7 percent quartz when sampled on the next day. As was
pointed out in Finding No. 24, supra, it is necessary for USSM
to cut from 18 to 24 inches of rock in one entry in order to
obtain sufficient height for use of longwall mining equipment •.

1109

On a day when large quantities of rock are being cut, the quartz
content can be expected to increase.
That is the... reason that on
the day the inspector was obtaining a respirable-dust sample in
the 024 Unit of the Morton Mine, USSM's section foreman declined
to allow the continuous-mining machine to be operated in the
entry where 18 to 24 inches of rock are taken (~r. 351).
USSM also contends (Br., p. 5) that it was expensive for
USSM to maintain a reduced standard based on a 15-percent quartz
content, but the testimony of USSM's own witness shows unequivocally that USSM was required to comply with a reduced respirable-dust standard based on a quartz content of 7 percent. USSM
was not required, even for a single day, to maintain a reduced
respirable-dust standard based on a 15-percent quartz content in
the mine atmosphere (Tr. 511).
At one time in her arguments made at the hearing, counsel
for USSM referred to what "[w]e have found in our research" (Tr.
190). That reference serves to remind me of the fact that USSM
knows exactly what conditions prevail in its mines when it is
producing coal.
If USSM is ever certain that the quartz content
in a given mine has actually been incorrectly analyzed by MSHA,
it is quite obvious that USSM has the facilities to prove to
MSHA that a mistake has been made.
In view of the evidence showing that MSHA has responded to USSM's requests for resampling on
past occasions, I am confident that USSM would be able to get
repeat sampling done when a really meritorious situation shows
that a mistake has been made.
USSM's Argument that MSHA Looks Only at Peaks and Ignores Valleys
USSM's brief (p. 4) notes that during the period from January 1981 to August 1982, the 002 Unit in its Shawnee Mine had an
average concentration of 1.3 milligrams per cubic meter of air
and USSM concludes from that observation that over the year, the
miners in that section were working in an atmosphere which was
within the respirable-dust standard set by MSHA. USSM then observes that during that same period, however, on any particular
set of five samples, one sample may have been above 2 milligrams
per cubic meter of air, so that, on that day, the miners were
exposed to more than the allowable standard. USSM then argues
that the exposure to more than the allowable standard for 1 day
is not considered a violation by MSHA.
USSM concludes from the
foregoing observations that MSHA's use of a 2-month period to
determine exposure levels causes one to look only at the peaks
and ignore the valleys. USSM says that it cannot understand how
the Secretary can honestly argue that exposure to more than the
allowable limit on a single day is a significant and substantial
violation because MSHA is totally disregarding periods of time
when the average concentration is well below the allowable standard.

1110

There are a number of fallacies in the above-mentioned
arguments. First, the transcript references given by USSM show
that MSHA·' s witness Nesbit was being asked questions about his
Exhibits 40 and 41 which are graphs showing how many of USSM's
own samples were above and below the allowable standard of 1.4
milligrams for Unit 002 in the Shawnee Mine which had a respirable-dust standard of 1.4 milligrams when the mine atmosphere
had a 7-percent quartz content. The graph in Exhibit 40 does
show that USSM's samples indicate the mine had a mean of 1.36
milligrams, but the samples depicted in Exhibit 40 were not
taken at a time when USSM's 002 Unit had a reduced standard
based on a quartz content greater than 5 percent. Nesbit said
that before the 002 Unit was placed on a reduced standard, USSM's
samples were above the 2 milligram standard 36 percent of the
time. Exhibit 41 is a graph showing the results of USSM's
samples taken after the 002 Unit was required to maintain a reduced standard of 1.4 milligrams because the 002 Unit had a 7percent quartz content in the mine atmosphere. Nesbit stated
that after USSM was placed on the reduced standard, USSM's
samples were above the 1.4 milligram standard 46 percent of the
time (Tr. 247; 302-303).
USSM incorrectly claims that MSHA looks only at the peaks
and ignores the valleys because the graphs in Exhibits 40 and
41 very carefully indicate both the peaks and valleys and one
of the purposes of the graphs is to show that USSM's miners
were exposed to an excessive amount of respirable dust when from
36 to 46 percent of the samples were taken.
USSM is correct in
stating that statistics may be used to make all sorts of arguments, depending on which side of a given issue the person is
who wishes to make the arguments. The important point in this
proceeding, however, is that the lungs of the miners working in
the 002 Unit do not know that, on an average day, they have been
breathing an atmosphere which contains no more respirable dust
than the standard which is in effect for a given period of time.
USSM did not succeed in showing that there are any errors in
Dr. Richards' claims that studies indicate that a miner's
chances of having progressive massive fibrosis increase when
he is exposed to high concentrations of respirable dust. Three
samples shown in Exhibit 40 had a respirable-dust content which
was between 2.5 and 3 milligrams and three other samples had a
respirable-dust content of 6 or more milligrams. On those 6
days, the miners in the 002 Unit were especially likely to
breathe into the alveoli of their lungs enough silica or quartz
to initiate the scarring process or fibrosis which may lead to
progressive massive fibrosis which cannot be arrested (Finding
Nos. 30-32, supra).
There is considerable inconsistency in USSM's arguments
about MSHA's ignoring the valleys because MSHA's respirabledust program uses the respirable dust in five samples submitted

1111

by the operator for determining whether the operator is in compliance with the respirable-dust standard. Since ..the samples
are taken· by the operator, the operator has absolute control
over the conditions in its mine at the time the samples are
taken. MSHA does not cite the operator for a violation if one
of the five samples is greatly out of line with ttte respirabledust standard so long as the remaining four samples do not
raise the average milligrams of respirable dust above the allowable standard at any given time (Exhs. 16; 22; 29; 32; 37; 38).
Therefore, it is simply incorrect for USSM to argue that MSHA
considers only the peaks and ignores the valleys. MSHA's averaging process gives equal weight to both valleys and peaks in
determining whether the miners have been exposed to more milligrams, on.the average, than is permitted by the applicable
respirable-dust standard.
Finally, USSM's argument that its samples ·showed that the
002 Unit, on the average, was within compliance with the applicable standard for more than a year is based on its own samples
and those samples were taken for only 5 days during each 2month period. The fact that some of USSM's samples had a respirable-dust content of more than 6 milligrams at a time when
USSM's section foremen knew that they were obtaining samples to
prove compliance with the allowable standard is a strong indication that the miners may be exposed to much greater concentrations than 6 milligrams on days when USSM is not trying to obtain samples ·to prove compliance with the respirable-dust standard applicable to its mines on those days.
The Violations Were Properly Designated as Significant and
Substantial
The discussion above has shown that MSHA's dust-sampling
program is being administered in a fair and valid manner and
that USSM has ample opportunity to take its samples under favorable conditions for bringing its mine into compliance with the
respirable-dust standard applicable to the various sections in
its mines.
I find that MSHA proved that the two violations of
section 70.101 alleged in Citation Nos. 9914583 and 9917507
occurred (Finding Nos. 14 and 17, supra).
The remaining question to be decided is whether MSHA proved
that the violations, in the words of section 104(d) (1) of the
Act, "* * * could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard". The Commission applied its National Gypsum definition
of the term "significant and substantial" in its recent decisions in Mathies Coal Company, 6 FMSHRC 1 (1984), and in Consolidation Coal Company; 6 FMSHRC 189 (1984). The Commission
stated in footnote 4 of its Mathies decision and in footnote 8
of its Consolidation decision that it has pending before it a

1112

challenge to the application of National Gypsum ~o a health
standard, as opposed to a safety standard, and it stated that
it intimates "* * * no views at this time as to the merits of
that question" (Footnote 4 in Mathies).
The Commission held in the Consolidation case, supra, that
an inspector may properly designate in a citation issued pursuant to section 104(a) of the Act that the alleged violation is
significant and substantial as that term is used in section
104(d) (1) of the Act. While the Commission has not determined
whether a health standard may be designated as "significant and
substantial" within the meaning of that definition given by the
Commission in the National Gypsum case, the quotation below
from section 104(d) (1) of the Act shows that Congress made no
distinction in providing that an inspector may designate either
a health or a safety standard as being significant and substantial:
(d) (1)
If, upon any inspection of a coal or
other mine, an authorized representative of the
Secretary finds that there has been a violation of
any mandatory health or safety standard, and if he
also finds that
* *-Such violation is of such
nature as could significantly and substantially
contribute to the cause and effect of a coal or
other mine safety or health hazard, * * * he shall
include such finding in any citation given to the
operator under this Act.
[Emphasis supplied.]

*

The language quoted from section 104(d) (1) above shows
that MSHA had the authority to include in Citation Nos. 9914583
and 9917507 findings that the violations of section 70.101 were
significant and substantial. Although the Commission's definition of significant and substantial as given in the National
Gypsum case has been held by the Commission as being applicable,
up to now, only to a safety standard, it is my belief that the
definition is equally applicable to a violation of a health
standard and that the Commission's National Gypsum definition
of significant and substantial can be applied to a violation of
a health standard. The Commission, in both its Mathies and
Consolidation decisions, supra, considered the National Gypsum
definition in four steps.
The first step is a consideration of whether MSHA proved
that violations occurred. USSM's counsel conceded at the hearing that USSM had violated section 70.101 if the language given
in that section is applied to the samples which USSM submitted
from the 002 Unit in its Shawnee Mine and the 024 Unit of its
Morton Mine (Tr. 144). I have already· considered in the foregoing portions of this decision USSM's claims about the lack of
fairness in MSHA's respirable-dust program and I have found

1113

them to be without merit. Since the preponderan~e of the evidence shows that MSHA is fairly administering the program and
that USSM has been given ample opportunity to obtain all the
information MSHA has in connection with the citations issued, I
find that the violations of section 70.101 alle~ed' in Citation
Nos. 9914583 and 9917507 occurred.
The second step to be considered in determining whether a
health violation is significant and substantial. is whether the
violation contributed a measure of danger to a discrete health
hazard.
There can be no doubt but that breathing excessive
quantities of respirable dust exposes the miners to developing
silicosis or pneumoconiosis which are serious and which can
cause premature death (Finding Nos. 30-32, supra).
The third step to be considered in determining whether a
health violation is significant and substantial is whether there
is a reasonable likelihood that the hazard contributed to will
result in injury. Dr. Richards' testimony was based, in part,
on studies which supported his statements that breathing respirable dust exposes miners' lungs to a scarring process known
as fibrosis.
Richards could not state that an exposure for a
2-month period to 1.9 milligrams when the standard is 1.7 milligrams or to 1.7 milligrams when the standard is 1.4 milligrams
would produce a measurable response in a given miner's lungs,
but the studies show that continual exposure may produce silicosis or pneumoconiosis. When the respirable dust lodges in the
alveoli of the lungs, it remains there forever and each exposure
adds to the scarring process so as to produce the lesions associated with progressive massive fibrosis.
USSM's cross-examination of Richards failed to disprove any of his claims as to the
hazards associated with breathing excessive quantities of respirable dust. Therefore, I find that the preponderance of the
evidence supports a finding that there is a reasonable likelihood that the hazard contributed to will result in injury.
The fourth step to be considered in determining whether a
violation is significant and substantial is whether there is a
reasonable likelihood that the injury in question will be of a
reasonably serious nature. USSM's brief (pp. 6-7) claims that
there is simply no definite proof that an exposure to a few
tenths of a milligr~m of respirable dust in excess of the applicable standard for a 2-month period is reasonably likely to result in an injury of a reasonably serious nature.
It is asserted
that MSHA's quartz-compliance progr~m is a house of cards built
upon assumptions that cannot withstand scrutiny. The evidence
in this case contradicts USSM's arguments because MSHA's witnesses successfully defended the validity of the respirable-dust
program (Finding Nos. 21-22; 24; 26, supra).

1114

The very nature of silicosis and pneumoconio~is defies
specific proof as to the exact extent of injury which will result from a single 2~month exposure to respirable dust in excess
of the applicable standard.
It is the average person's lack of
familiarity with health hazards that causes him to accept more
readily a contention that a safety hazard is likely to produce a
serious injury than an assertion that a health hazard will result in a reasonably serious injury.
For example; a miner may work under unsupported roof for
years and never be injured because he was fortunate in not happening to be under any rocks which were loose enough to fall on
him. Despite that particular miner's good fortune, there are
overwhelming statistics which show that many miners are killed
by roof falls each year. Therefore, an inspector's claim that
working under unsupported roof is reasonably likely to result
in a reasonably serious injury is not doubted because there are
many instances every year which demonstrate beyond any doubt
that noncompliance with a roof-control plan may be designated
as a significant and substantial violation without there being
much chance that anyone will challenge such a designation.
The evidence in this case is just as persuasive as any
which could ·be offered in support of a designation of working
under unsupported roof as a significant and substantial violation. Dr. Richards did not equivocate about believing that each
exposure to more than 5 percent of quartz in the mine atmosphere
is a serious health hazard. No roof-control specialist could
have been any more positive as to the likelihood of an injury of
a reasonably serious nature from a single minute of standing under unsupported roof than Dr. Richards was as to the possibility
of injury of a reasonably serious nature from a 2-month exposure
to excessive respirable dust. A single minute under unsupported
roof is reasonably likely to result in a fatality, but there is
no certainty that it will. It is just as true that a 2-month
exposure to more than 1.4 milligrams of respirable dust when 7
percent quartz is present may start fibrosis, but there is no
absolute certainty that it will. Yet, exposure to excessive
dust does cause miners to develop fibrosis. Once that process
is started, each exposure thereafter contributes to the cumulative effects until progressive massive fibrosis results. Then,
even if the miner stops working in a coal mine, the disease will
continue to cause increasing inability for the lungs to perform
their function of purifying the blood and the miner will die
prematurely (Finding Nos. 30-32, supra).
I find that Dr. Richards' testimony was sufficiently positive and sufficiently based on valid scientific studies to support a finding that the violations alleged in Citation Nos.
9914583 and 9917507 were properly designated as significant and

1115

substantial under the Commission's definition set ... forth in the
National Gypsum case, as amplified in the Mathies and Consolidation case·s, supra.
Assessment of Penalties
USSM's brief (p. 7) makes only one contention as to the
assessment of penalties in the event I should find that violations occurred. That contention is that since the violations
were not proven to be significant and substantial, I am required
to reduce the penalty for each violation to the single penalty
assessment of $20 as provided for in 30 C.F.R. § 100.4. I have
already considered that argument at some length in connection
with the violation of section 103(f) alleged in Citation No.
2024280. Of course, since I have found that the violations of
section 70.101 were significant and substantial, the provisions
of section 100.4 are not applicable in assessing penalties,
even if I had not already found that there is no merit to USSM's
contentions that judges are bound in evidentiary proceedings to
assess penalties of only $20 for nonserious violations.
The Secretary's brief makes only one comment about assessment of penalties for the violations of section 70.101. That
comment is that "[i]n view of the criteria contained in §llO(i)
of the Act, a penalty of $100 would be appropriate for each
Citation" (Br., p. 26).
In his u. S. Steel decision, 5 FMSHRC
at 1336, supra, Judge Broderick assessed a penalty of $200 for
a violation of section 70.101 in circumstances showing that the
average concentration was 1.8 milligrams when the standard was
1.4 milligrams with a 7-percent quartz content in the mine atmosphere. The violation in Judge Broderick's case is almost exactly
the same as the one in this case for the 002 Unit in the Shawnee
Mine where the concentration of respirable dust was 1.7 milligrams when the standard was 1.4 milligrams with a 7-percent
quartz content in the mine atmosphere.
In his u. S. Steel decision, supra, 5 FMSHRC at 77, Judge Kennedy assessed two civil
penalties of $99 each for two violations of section 70.101 at
a time when the quartz content in USSM's Maple Creek No. 2 Mine
had been found to be 11 percent.
I have already shown in previously considering the six
criteria in this decision, at page 25, supra, that USSM is a
large operator and that payment of penalties will not cause
USSM to discontinue in business.
The remaining four criteria
will be examined for purpose of assessing the penalties for violations of section 70.101.
History of Previous Violations
The evidence introduced by MSHA shows that USSM had only
one previous violation of the respirable-dust standards for the

1116

024 Unit in the Morton Mine (Exh. 13) and only on~ previous violation of the respirable-dust standard for the 002 Unit in its
Shawnee Mine (Exh. 28). A single previous violation for each
unit at a time when the respirable-dust standards were being reduced on the basis of MSHA's finding of a quartz content of more
than 5 percent shows that USSM was making an efrort to keep its
miners from being exposed to excessive respirable dust. Therefore, the penalty will not be increased for either violation under the criterion of history of previous violations.
Good-Faith Effort To Achieve Compliance
USSM was given 21 days to abate the violation cited for the
024 Unit in the Morton Mine (Exh. 4) and 30 days to abate the
violation cited for the 002 Unit in the Shawnee Mine (Exh. 20).
USSM succeeded in abating each violation when it submitted five
samples for purposes of abatement. The samples were not collected within the abatement period in the Morton Mine but since
USSM had acquired the Morton Mine from Carbon Fuel Company only
a short time before the citation was written, I do not believe
that the penalty should be increased for USSM's failure to abate
the violation within the 21-day period given in the citation,
especially when it is considered that USSM's samples, when submitted, did show that it had succeeded in meeting the reduced
standard.
USSM took five samples for abatement of the violation in
the 002 Unit in its Shawnee Mine about 20 days before expiration
of the abatement period. An advisory was sent to USSM before
expiration of the abatement period showing that USSM had succeeded in meeting the reduced standard for the 002 Unit. Therefore, USSM demonstrated a good-faith effort to achieve compliance with respect to the violation alleged in Citation No.
9914583 and the penalty should not be increased under the criterion of good-faith effort to achieve compliance.
Negligence
The inspector who cited the violation in the 024 Unit of
the Morton Mine classified USSM's negligence as "low" (Exh. 4)
and the inspector who cited the violation in the Shawnee Mine
classified USSM's negligence as "none" (Exh. 20). MSHA's witness Nesbit expressed no disagreement with the inspector who
had classified USSM's violation in the Shawnee Mine as nonnegligent (Tr. 329). As I have previously indicated, USSM did make
an effort to bring both the 002 Unit and the 024 Unit into compliance with reduced standards within a short period of time and
the evidence in this proceeding shows only one previous violation for each unit.
I find that the preponderance of the evidence supports a finding that USSM was nonnegligent in exceeding
the reduced standard applicable for both units. Therefore, the
penalty will not be increased under the criterion of negligence
with respect to either violation.

1117

Gravity
In each instance, the inspector who cited the respective
violations of section 70.101 indicated that he considered the
violation to be serious because he checked blocks on the citation showing that he believed the violations to be
. permanently
disabling and to affect from 2 to 4 persons (Exhs. 4 and 20).
Witness Nesbit stated several times during his direct testimony
and cross-examination that he considered the violations to be
serious because, once respirable dust has entered a miner's
lungs, it will remain there for the remainder of his life so as
to disable the miner or cause premature death (Tr. 271; 329;
331; 342). All of Dr. Richards' testimony was devoted to explaining why exposures to respirable dust when a quartz content
of more than 5 percent is present is a serious violation (Tr.
411-506).
All of the discussion above under the heading of the term
"significant and substantial" shows why exposures'to excessive
respirable dust is a serious violation. Therefore, I find that
the preponderance of the evidence supports a finding that both
violations of section 70.101 were serious. Although I have
found above that no portion of the civil penalty should be
assessed under the criteria of history of previous violations,
good-faith effort to achieve rapid compliance, or negligence,
it is appropriate that a penalty of $125 be assessed for each
violation in·view of the fact that a large operator is involved
and the fact that both violations were serious.
WHEREFORE, it is ordered:
(A)
The notice of contest filed by u. s. Steel Mining Co.,
Inc., in Docket No. WEVA 82-390-R is denied and Citation No.
2024280 dated August 18, 1982, is affirmed.
(B)
Within 30 days from the date of this decision, U. s.
Steel Mining Co., Inc., shall pay civil penalties totaling
$275.00 which are allocated to the respective violations as
follows:
Docket No. WEVA 83-82
Citation No. 9914583 10/20/82 § 70.101
(Tr . 2 0 5) . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $12 5 . 0 0
Total Penalties Assessed in Docket No.
WEVA 83-82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $125. 00

1118

Docket No. WEVA 83-95.
Citation No. 2024280 8/18/82 § 103(f) ••.••.•• $ 25.0(J
Citation No. 9917507 9/1/82 § 70.101 ••••••••• 125.00
Total Penalties Assessed in Docket No.
WEVA 83-95 . . . . . . . . . • . . . . . . . . • . . . . . . . . . . . . . . $150.00
Total Penalties Assessed in This Proceeding •• $275.00
(C)
The motion filed on May 5, 1983, by the Secretary of
Labor to amend the petition for assessment of civil penalty in
Docket No. WEVA 83-82, so as to substitute correct attachments
for the erroneous attachments which were originally filed with
the petition for assessment of civil penalty, is granted.

~

e.23_bj/n

Richard C. Steffey
lflAdministrative Law Judge

Distribution:
Louise Q. Symons, Esq., U. S. Steel Mining Co., Inc., 600 Grant
Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail)
David E. Street, Esq., Office of the Solicitor, u. s. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Joyce A. Hanula, Legal Assistant, United Mine Workers of America,
900 - 15th Street, NW, Washington, DC 20005 (Certified Mail)

~U.S.

yh

GOVERNMENT

1119

PRINTING

OFFICE1

1984-421"569/13601