SEPTEMBER 1988
COMMISSION ORDERS
06-16-88
06-20-88

Local Union 5817, UMWA v. Monument Mining
Corporation and Island Creek Coal Co.
Wi1mot Mining Company

WEVA 85-21-C

Pg. 1123

LAKE 85-47

Pg. 1124

YORK 87-2-R
WEVA 88-154
WEVA 88-136
WEVA 86-190-R
PENN 87-37
VA
86-34-D

Pg. 1125
Pg. 1130
Pg. 1132
Pg. 1135
Pg. 1138
Pg. 1145

WEST 88-131-R
WEVA 85-43-D

Pg. 1173

COMMISSION DECISIONS
!)9-07-88
09-09-88
09-15-88
09-19-88
09-26-88
09-26-88
09-27-88
09-29-88

Mettiki Coal Corporation
Middle States Resources, Inc.
Ten-A Coal Company
Southern Ohio Coal Company
U.S. Steel Mining Company, Inc.
Sec. of Labor on behalf of Bobby G. Keene v.
S & M Coal Co., Inc. etc.
Kaiser Coal Corporation
Wilfred Bryant v. Dingess Mine Service, etc.

Pg. 1165

ADMINISTRATIVE LAW JUDGE DECISIONS
09-01-88
09-08-88
f)9-08-88
09-12-88
09-14-88
09-14-88
n9-1.5-88
09~15-88

D9-lfi-38

09-16-d8
i)9-20-88

09-23-88
l9-.'3-88
09-26-88
09-27-88
09-29-88
09-30-88
09-30-88

Gateway Coal Company
Rivco Dredging Corporation
Westmoreland Coal Company
Texas Architectural Aggregates, Inc.
Price Construction Inc.
Colorado Westmoreland, Inc.
Arthur Browning v. Nalley & Hamilton Enterprises
Se
.,f Labor on behalf of George Johnson and
other:-; v. li.m Walter Resources, Inc.
Co11s0i"idation Coal Company
ARC ~aterials Corp/WMK Transit Mix
Dak. ,, Coruorat ion
Stanlev Bakf T v. Kentucky Stone Company
Eurek;:i St one Ouarry, Inc.
In.jui:.t rial Gunstructors Corporation
RochP~tPr & Pittsburgh Coal Co.
Se.
.)t !.abor on behalf of Donald Robinette
and Joev Hale v. Bill Branch Coal Co.
Bobbv R. Luttrell v. Jericol Mining, Inc.
Asarco Incorporated

PENN 87-251
KENT 87-147
VA
87-31-R
CENT 88-55-M
CENT 87-59-M
WEST 88-223-R
KENT 88-132-D
SE
86-108-D

Pg. 1189
Pg. 1195

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

1209
1213
1228
1236
1243
1244

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

1246

WEVA ~8- 348-·R
WEST 87-108-M
WEVA 87-111-R
KENT 87-142-D
PENN 83-62-M
WEST 87-206-M
PENN 88-194-R
VA
87-21-D
VA
87-22-D
KENT 87-214-D
WEST 87-179-M

Pg.
Pg.

WEST 87-130-R
KENT 88-171-D

Pg. 1337
Pg. 1359

LAKE 88-54-M
LAKE 88-55-M
LAKE 88-58-M
LAKE 88-59-M
LAKE 88-62-M

Pg. 1363
Pg. 1375
Pg. 1387
Pg. 1399
Pg. 1405

Pg.

Pg.

1253

1259
1295

1298
1306
1313
1318
1318
1328
1336

ADMINISTRATIVE LAW JUDGE ORDERS

-- - - - - - - - - -

08-10-88
\)9-01-88

09-07-88
09-07-88
09-07-88

09-07-88
09-07-88

Emerv Mining Corp./Utah Power & Light Co.
Sec.. Labor on behalf of Patrick Staufield v.
National Mines Corp.
Columbia Portland Cement Company
C(•;umbia Portland Cement Company
C0lnmbia Portland Cement Company
Columbia Portland Cement Company
Columbia Portland Cement Company

SEPTEMBER 1988
Review was granted in the following cases during the month of September:
Secretary of Labor, MSHA v. Southern Ohio Coal Company, Docket No.
LAKE 87-95-R, 88-26. (Judge Weisberger, July 28, 1988)
Secretary of Labor, MSHA v. Middle States Resources, Inc., Docket No.
WEVA 88-154. (Chief Judge Merlin, Default order of August 15, 1988)
Secretary of Labor, MSHA v. Ten-A Coal Company, Docket No. WEVA 88-136.
(Chief Judge Merlin, Default order of August 15, 1988)
Secretary of Labor, MSHA v. Garden Creek Pocahontas Company, Docket No.
VA 88-9, 88-10, 88-11. (Judge Melick, August 19, 1988)
Secretary of Labor, MSHA on behalf of Michael Price and Joe John Vacha v.
Jim Walter Resources, Docket No. SE 87-128-D. (Judge Broderick, August 26, 1988)
No cases were filed in which review was denied.

COMMISSION DECISIONS

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

June 16, 1988

LOCAL UNION NO. 5817, DISTRICT 17,
UNITED MINE WORKERS OF AMERICA
(UMWA)

v.
Docket No. WEVA 85-21-C
MONUMENT MINING CORPORATION and
ISLAND CREEK COAL COMPANY
BEFORE:

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

BY THE COMMISSION:
On February 23, 1988, the United States Court of Appeals for the District
of Columbia Circuit issued its decision in this matter, styled International
Union, UMWA v. FMSHRC, 840 F.2d 77 (D.C. Cir. 1988), reversing the
Commission's decision (Local Union No. 5817, District 17, UMWA v. Monument
Mining Corp. and Island Creek Coal Co., 9 FMSHRC 209 (February 1987)), and
remanding for further proceedings consistent with its opinJon.
In accordance with the Court's order, we are obliged to remand this
matter to the administrative law judge originally assigned for further
proceedings including, if necessary, consideration of any remaining challenges
by Island Creek Coal Company to the complaint for compensation that have not
been previously waived.

A•.;Lastowkai Commissioner
r/ . :
{ :..- .
'
{.
, .._

/I

L

. ·,__

'--"'-'--\/

~ILt -- '--'-<. ''-"

Clair Nelson, Commissioner

1123

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

June,20, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. LAKE 85-47

WILMOT MINING COMPANY
BEFORE:

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

ORDER
BY THE COMMISSION:
On May 17, 1988, the United States Court of Appeals for the Sixth
Circuit issued its opinion in this matter, styled Wilmot Mining Company
v. Secretary of Labor, etc., No. 87-3480 (per curiam). The Commission's
decision, reported at 9 FMSHRC 684 (April 1984), was affirmed in part,
reversed in part, and remanded for further proceedings.
In relevant part, the Court concluded that substantial evidence
did not support the Commission's determination, for civil penalty
assessment purposes, of negligence with respect to the operator's
violation of 30 C.F.R. § 77.403(a). The Court remanded the case to the
Commission for reconsideration of the civil penalty assessment for that
violation. In accordance with the Court's order, we remand this matter
to the Commission administrative law judge originally assigned for
further proceedings consistent with the Court's decision.

Fo

, Chairman

~A--t: -C--<' 4 L-4 zt /fc_-z_,.../

Richard V. Backley, Commissioner

--

,..

,/I

~

\. r_'.-L.c,-(_J __,

t'. '(,

JoY.ce A. Doyle,

'/

i 1.~I L (

:'
(

Commiss·~ner

1

~s(~~ La~tcl"~ co7'1i~sioner

·.:£'l:~ I ~6---i-v
L. Clair Nelson, Commissioner

1124

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

September 7, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos. YORK 87-2-R
YORK 87-3-R
YORK 87-5

METTIKI COAL CORPORATION

BEFORE:

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

BY THE COMMISSION:
In these consolidated contest and civil penalty proceedings
arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et. ~ (1982) (the "Mine Act"), the issue is whether Mettiki
Coal Corporation ("Mettiki") violated 30 C.F.R. § 75.305 at its underground coal mine by failing to examine at least once each week a minimum
of one entry of each intake and return aircourse in its entirety. l/
Commission Administrative Law Judge Gary Melick held that Mettiki had
no~ violated the standard.
9 FMSHRC 1088 (June 1987)(ALJ). For the
reasons that follow, we affirm Judge Melick's decision.

lf

30 C.F.R. § 75.305, a mandatory safety standard for underground
coal mines restates section 303(f) of the Mine Act, 30 U.S.C. § 863(f).
Section 75.305 provides in part:
In addition to the preshift and daily examinations
required by this Subpart D, examinations for
hazardous conditions, including tests for methane,
and for compliance with the mandatory health or
safety standards, shall be made at least once each
week by a certified person designated by the
operator in ... at least one entry of each intake
and return air course in its entirety .•.. The
person making such examinations and tests shall
place his initials and the date and time at the
places examined, and if any hazardous condition is
found, such condition shall be reported to the
operator promptly .... Any hazardous condition shall
be corrected immediately ....

1125

The conditions alleged by the Secretary of Labor ("Secretary") to
constitute violations of section 75.305 occurred at Mettiki's mine
located in Garrett County, Maryland. There are ten parallel entries in
the main portion of the E-mains section (the "E-mains entries"). The
crosscuts ("breaks") are numbered sequentially from the portals. See
Exh. C-1. The mine is ventilated by an exhaust fan located at the
portal of the No. 7 E-mains return, which exhausts air from the mine.
At the same time, fresh air is pulled into the mine through the No. 4
and No. 5 portals.
In the early 1980's, as a result of squeezing~/ in the E-mains
entries, Mettiki drove three additional entries (the "Skipper entries")
parallel to the E-mains entries. A block of coal (the "barrier block"),
approximately 300 feet wide and 2,000 feet long, separates the E-mains
entries from the Skipper entries and extends from Break 11 to Break 39.
Intake air flows into the Skipper No. 1 entry from the E-mains intake
entries at Break 11, courses the length of the barrier block, is
reunited with the intake air in the E-mains entries at Break 40 and
Break 50, and flows inby to ventilate the E-1 working section. Having
crossed the working face, the air is then exhausted through the E-mains
return entries. The Skipper No. 3 entry also exhausts return air and,
at the intersection of Break 4 and E-mains No. 7 return entry, the
return air from both the E-mains and Skipper No. 3 entry mix and the
combined return air flows 600 or 700 feet to the No. 7 portal and out of
the mine. (Skipper No. 2 entry is ventilated by neutral air.) See Exh.
C-1.
On September 10 and 11, 1986, an inspector for the Department of
Labor's Mine Safety and Health Administration ("MSHA") conducted
inspections at the mine. At this time, it was Mettiki's daily practice
to examine the E-mains No. 5 intake entry and the E-mains Nos. 7 and 9
return escapeway for hazardous conditions. These entries were the only
intake and return entries that Mettiki examined in their entirety at
least once each week. Because the inspector believed that the Skipper
intake and return entries were aircourses separate and distinct from the
E-mains intake and return entries, he cited Mettiki for the alleged
violations of section 75.305 in orders of withdrawal issued pursuant to
section 104(d)(2) of the Act. 30 U.S.C. § 814(d)(2).
Subsequently, Mettiki contested the orders and the Secretary
sought civil penalties for the violations. At the hearing on the
consolidated matters, the parties disputed whether the Skipper intake
and return entries were separate aircourses subject to section 75.305.
The Secretary argued that the E-mains section contained two discrete
sets of aircourses -- an intake and return aircourse on the E-mains side
of the barrier block and an intake and return aircourse on the Skipper
side of the barrier block. Mettiki maintained that the intake and
'1:_/
"Squeezing" is defined as "the slow increase in weight on pillars
or solid coal eventually resulting in such things as crushing of the
coal, heaving of the bottom and the driving of pillars into soft floor
or top." Bureau of Mines, U.S. Department of the Interior, A Dictionary
of Mining, Mineral, and Related Terms 1062 (1968).

1126

return entries on both sides of the block were part of the s~e
aircourse. The parties agreed that Mettiki had examined the E-mains
No. 5 intake entry escapeway and the E-mains Nos. 7 and 9 return
escapeway as required by section 75.305. Therefore, the question before
the judge was whether the cited Skipper intake and return entries were
an aircourse separate and distinct from the E-mains intake and return
entries rather than part of the same aircourse.
In his decision the judge rejected as "completely arbitrary" the
Secretary's assertion that the Skipper No. 1 intake entry constituted a
separate and distinct aircourse. 9 FMSHRC at 1093. The judge stated
that the assertion was "not based on any definition of the term 'air
course' in any relevant statute, regulation, MSHA policy, or industry
past usage" and that the Secretary "presented no evidence of any prior
consistent enforcement ••• establish[ing] that Mettiki was on notice
regarding the Secretary's interpretation [of section 75.305]." Id. The
judge held that the Secretary did not prove that Mettiki violated
section 75.305. He further stated that language of section 75.305 makes
clear that an aircourse may consist of more than one entry and that in
examining on a weekly basis at least one entry in each aircourse in its
entirety, Mettiki complied with the standard. Id. For the same
reasons, the judge also rejected the Secretary';-argument that the
Skipper No. 3 return entry constituted a separate and distinct
aircourse. Id. Therefore, he vacated the contested orders of
withdrawal. -We granted the Secretary's petition for discretionary
review.
We agree with the judge that the Secretary failed to prove the
alleged violations. At the hearing, counsel for the Secretary
ma~ntained that the physical separation of the E-mains entries from the
Sk~pper entries, caused by the barrier block, created separate
aircourses. Tr. 10-11. MSHA supervisor Barry Ryan testified that while
an aircourse may contain one or more entries, if the entries are
"connnon" with one another they constitute a single aircourse, but if
they are "split" they constitute separate aircourses. Tr. 98. On
review, the Secretary paraphrases Ryan's testimony and argues that "if
the air is divided, if the entries are not 'common with each other' and
if there is no intermingling of air, then the entries or sets of entries
constitute separate 'aircourses. 111 S. Br. 7. The Secretary does not
explain what is meant by entries that are "connnon with each other."
Further, and as the judge noted, the Secretary offers no evidence
regarding any relevant statutory or regulatory definition of aircourse,
nor any evidence of custom, practice, or usage from which a meaning can
be gleaned.
Mettiki maintains that section 75.305 contemplates that an
aircourse may be comprised of many entries and that as long as the
entries are ventilated by the same air they constitute a single
aircourse. See Tr. 13. Mettiki's witnesses consistently testified that
the E-mains and Skipper intake entries and the E-mains and Skipper
return entries were all parts of the same aircourse and therefore
examination of only one intake and one return entry was required by
section 75.305. MSHA supervisor Ryan's testimony agrees with that of
Mettiki's chief engineer and its mine foreman that the intake air in the

1127

Skipper No. # entry mixes with the intake air in the E-mains entries at
the bottom of.the barrier block. Tr. 93-94, 102, 189, 191, 194-95; ~
also Exh. C-1. Ryan's testimony also acknowledges that the· intake air
in the Skipper No. 1 entry mixes with the E-mains intake at Break 50.
Tr. 102; see also Exh. C-1. The record further establishes that the
return air in the Skipper No. 3 entry is pulled by the exhaust fan up
the entry, that it traverses Break 9, flows up E-mains No. 2 and 3
return entries where it mixes with return air at the intersection of
Break 4 and E-mains No. 7 return entry. The mixed air then courses 600
to 700 feet to the return portal. Tr. 115-16, 206-07, 212; see also
Exh. C-1. Thus, substantial evidence of record supports the judge's
finding that in fa.ct the air in the Skipper entries mixes freely with
that in the E-mains.
The judge adopted Mettiki's view that because the air in the Emains and Skipper entries mixes, it is part of the same aircourse and
held that Mettiki was in compliance with the standard. 9 FMSHRC at
1092-93. We agree. The plain requirement of section 75.305 is that "at
least one entry in each intake and return aircourse be examined"
(emphasis added). This obviously contemplates that an aircourse may
consist of more than one entry. Thus, we conclude that the judge
properly held that the Secretary did not prove that Mettiki violated
section 75.305 and that Mettiki, by examining the E-mains No. 5 intake
entry escapeway and the E-mains No. 7 and No. 9 return escapeway at
least weekly in their entirety, complied with section 75.305.
Our disposition is based on the record before us. We are not
defining for all purposes the meaning of "aircourse" as used in section
75.305.
Accordingly, the decision of the administrative law judge is
affirmed.

)

/

·~

oyce

. Doyle, Commission

~d~'
'~-~ 4~v -;lt__,(_\J_~

/U'

,James A. Lastowka\Commissioner

L. Clair Nelson, Commissioner

1128

Dist-ribution
Linda Leasure, Esq.
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Susan E. Chetlin, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1129

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

September 9, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 88-154

v.
MIDDLE STATES RESOURCES,
INCORPORATED

BEFORE:

Ford B. Ford, Chairman; Backley, Lastowka, Doyle, and Nelson,
Commissioners
ORDER
---

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). On August 15,
1988, Commission Chief Administrative Law Judge Paul Merlin issued an
Order of Default finding respondent Middle States Resources, Inc.
("MSR") in default for failure to answer the Secretary of Labor's civil
penalty complaint and the judge's subsequent order to show cause . . The
judge assessed a civil penalty of $444 proposed by the Secretary. By
letter dated August 26, 1988, addressed to Judge Merlin, MSR asserted
that it had filed its "Blue Card" request for a hearing in this matter
and had not received the judge's show cause order. We deem MSR's August
26 letter to constitute a timely petition for discretionary review of
the judge's default order. See, e.g., Mohave Concrete & Materials,
Inc., 8 FMSHRC 1646 (November 1986). We grant the petition and
~rily remand this matter to the judge for further proceedings.
It appears from the record that MSR, a small operator acting pro
se, did file a Blue Card request for a hearing in this matter in
response to the Secretary's initial notification of proposed penalty.
However, MSR did not file an answer to the Secretary's subsequent civil
penalty complaint, as it was required to do in order to maintain its
contest of that penalty proposal. See 29 C.F.R. §2700.28. Accordingly,
on June 9, 1988, Judge Merlin issued an Order to Respondent to Show
Cause directing it to file the answer or be found in default. MSR did
not respond to the show cause order. MSR has alleged in its August 26
letter that, because of a change in corporate agent and because
correspondence was addressed to the former agent, it did not receive the
show cause order. The official file indicates that the show cause order
may not have been delivered to or received by MSR. MSR also asserts
that it notified the Department of Labor's Mine Safety and Health

1130

Administration of the change in its agent.
In a case involving a similar situation, the Counnission held that
"un.der appropriate circumstances a genuine problem in counnunication or
with the mail may justify relief from default." Con-Ag, Inc., 9 FMSHRC
989, 990 (June 1987). Upon consideration of the record and MSR's
request for relief from default, we conclude that MSR should be afforded
the opportunity to raise these issues with the judge, who shall
determine whether relief from default is appropriate. Cf. Kelley
Trucking Co., 8 FMSHRC 1867, 1869 (December 1986).
Accordingly, the judge's default order is vacated and this matter
in remanded fo:_proceedings consistent with this order.

~
Commiss~
Richard V. Backley,

~7~
L. Clair Nelson, Connnissioner

Distribution
Preston Turner
Middle States Resources, Inc.
1000 DuPont Rd., Bldg. 6
Morgantown, West Virginia 26505
Therese I. Salus, Esq.
Office of the Solicitor
U.S~ Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Counnission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

1131

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

September 15, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEVA 88-136

TEN-A COAL COMPANY

BEFORE:

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

ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). On August 15,
1988, Conunission Chief Administrative Law Judge Paul Merlin issued an
Order of Default finding respondent Ten-A Coal Company ("Ten-A") in
default for failure to answer the Secretary of Labor's civil penalty
complaint and the judge's subsequent order to show cause. The judge
assessed a civil penalty of $504 proposed by the Secretary. By letter
dated August 29, 1988, addressed to Judge Merlin, Ten-A asserted that it
had filed its "Blue Card" request for a hearing in this matter and had
"never received any papers on this" until it received the default order.
We deem Ten-A's August 29 letter, received by the Conunission on
August 31, to constitute a timely petition for discretionary review of
the judge's default order. See, ~, Mohave Concrete & Materials,
.!!!£:.., 8 FMSHRC 1646 (November 1986). We grant the petition and
sununarily remand this matter to the judge for further proceedings.
It appears from the record that Ten-A, a relatively small operator
acting without counsel, did file a Blue Card request for a hearing in
this matter in response to the Secretary's initial notification of
proposed penalty. However, Ten-A did not file an answer to the
Secretary's subsequent civil penalty complaint, as it was required to do
in order to maintain its contest of that penalty proposal. See 29
C.F.R. § 2700.28. Accordingly, on June 9, 1988, Judge Merlin issued an
Order to Respondent to Show Cause directing Ten-A to file an answer or
be found in default. Ten-A did not respond to the show cause order.
Ten-A has alleged that it "never received any papers on this" following
its filing of the Blue Card and prior to receipt of the default order.

1132

The record reflects that the Secretary's penalty proposal was
served by first class mail on Ten-A at its proper address. The record
also shows that the judge's show cause order was mailed to Ten-A on
June 9, 1988, by certified mail, return receipt requested, at the proper
address, attention of Patrick H. Cunningham, Partner. The record
contains the certified mail return receipt for that mailing, signed on
June 14, 1988, by one Frank Cunningham. The Commission has recently
noted that "under appropriate circumstances a genuine problem in
communication or with the mail may justify relief from default." Middle
States Resources, Inc., 10 FMSHRC ~-' No. WEVA 88-154, slip op. at 2
(September 9, 1988), guoting Con-Ag, Inc., 9 FMSHRC 989, 990 (June·
1987)(emphasis added). The record does not contain sufficient
information to permit us to rule with respect to Ten-A's claims, but we
remand this matter to the judge, who shall afford Ten-A the opportunity
to present its explanation. The judge shall determine whether relief
from default is appropriate under the circumstances presented. Cf.
Perry Drilling Co., 9 FMSHRC 377, 380 (March 1987).
Accordingly, the judge's default order is vacated and this matter
is remanded for proceedings consistent with this order. Ten-A is
reminded to serve the Secretary of Labor with copies of all its
correspondence and other filings in this matter. 29 C.F.R. § 2700.7.

~d.~~

Joyce A. Doyle, Comm1:s~

L. Clair Nelson, Commissioner

1133

Distribution
Anita D. Eve, Esq.
Off ice of the Solicitor
U.S. Department of Labor
3535 Market Street
Philadelphia, PA 19104
Patrick H. Cunningham-Ptnr.
Ten-A-Coal Company-Ward Mine
Route 4, Box 253·
Clardsburg, WV 26301

1134

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

19, 1988

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEVA 86-190-R
WEVA 86-194-R

v.

SOUTHERN OHIO COAL COMPANY
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
WEVA 86-254

v.

SOUTHERN OHIO COAL COMPANY

BEFORE:

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

BY THE COMMISSION:
At issue in this consolidated contest and civil penalty proceeding
arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seg. (1982) ("Mine Act"), was the validity of a notice to
provide safeguard issued to Southern Ohio Coal Co. ("Socco") pursuant to
30 C.F.R. § 75.1403. On August 19, 1988, the Commission issued a
decision holding that substantial evidence does not support the
Administrative Law Judge's conclusion that the notice to provide
safeguard was issued improperly. The Commission reversed the judge's
vacation of the contested order, and remanded the matter to the judge to
consider Sacco's contest of the order's special findings and to assess
an appropriate civil penalty. 10 FMSHRC ~ (August 19, 1988). On
August 29, 1988, the Commission received from counsel for Socco a Motion
to Alter or Amend Judgment. Socco moves the Commission to enter a new
decision in Socco's favor or to remand the matter to the judge for the
taking of further evidence.
We view Sacco's motion as being in the nature of a motion for·
reconsideration. 29 C.F.R. § 2700.75. The Secretary has not filed a
response to the motion.
The main thrust of Socco's request is that, under the Mine Act,

1135

Commission review of an administrative law judge's decision is "limited
to questions raised by the petition [for discretionary review],"
30 U.S.C. § 823(d)(2)(A)(iii). It asserts that the ·commission has erred
in deciding this case on a factual basis not raised in the Secretary's
petition for discretionary review. We disagree with Sacco's contention
that the basis for our disposition was not within the proper scope of
review. In her petition, the Secretary had expressly challenged, on
evidentiary grounds, the judge's assertion that there was no basis for
limiting the safeguard requirement at issue to the subject mine. S. PDR
at 8. We agreed, and that was the basis for our d~cision. Slip op. 56. As for Sacco's other assertions as to why our decision should be
reconsidered, we have reviewed them and find them unpersuasive.
Accordingly, Sacco's motion is denied. l/

Richard V. Backley,

-~

ames A. Lastowka, Commissioner

~~

L. Clair Nelson, Commissioner

ll

Sacco correctly notes that Docket No. WEVA 86-194-R was not at
issue on review and need not be subject to further proceedings on
remand.

1136

Distribution
David M. Cohen, Esq.
American Electric Power
Service Corporation
P.O. Box 700
Lancaster, Ohio 43130
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of· Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Roy Maurer
Federal llline Safety & Health Review Commission
5203 Leesourg Pike, Suite 1000
Falls Church, Virginia 22041

1137

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

September 26, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket Nos. PENN 87-37
PENN 87-38
PENN 87-127
PENN 87-157

v.

U.S. STEEL MINING COMPANY, INC.
BEFORE:

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

BY THE COMMISSION:
This consolidated civil penalty proceeding arising under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seg.
(1982), involves four separate citations issued to U.S. Steel Mining
Company, Inc. ("USSM") alleging "significant and substantial" violations
of 30 C.F.R. § 75.601 for improperly labeled trailing cable receptacles
at USSM's Cumberland Mine. l/ The parties stipulated at the hearing
that resolution of the issue in the present matter (Docket No. PENN 8737) would determine the result in all four proceedings. Tr. 3-4.
Accordingly, Commission Chief Administrative Law Judge Paul Merlin

ll

Section 75.601, a mandatory safety standard for underground coal
mines, restates section 306(b) of the Mine Act ("Trailing cables"),
30 U.S.C. § 866(b), and provides:
Short circuit protection of trailing cables
Short-circuit protection for trailing cables shall
be provided by an automatic circuit breaker or other
no less effective device approved by the Secretary
of adequate current-interrupting capacity in each
ungrounded conductor. Disconnecting devices used to
disconnect power from trailing cables shall be ·
plainly marked and identified and such devices shall
be equipped or designed in such a manner that it can
be determined by visual observation that the power
is disconnected.
(Emphasis added.)

1138

consolidated the proceedings for hearing and decision. Judge Merlin
determined that USSM violated section 75.601 by failing to plainly mark
and identify trailing cable receptacles in order to identify the
equipment plugged into each receptacle at the cited power center.
9 FMSHRC 1771 (October 1987)(ALJ). Judge Merlin also found that the
violation of section 75.601 was of a "significant and substantial"
nature as alleged in the citation and assessed a civil· penalty of $200
in each of the four proceedings. 9 FMSHRC at 1778. We subsequently
granted USSM's petition for discretionary review. For the following
reasons, we affirm the judge's decision.
The facts in this proceeding are not in dispute. On September 18,
1986, Charles Pogue, an inspector with the Department of Labor's Mine
Safety and Health Administration ("MSHA"), conducted a regular
inspection at USSM's Cumberland Mine, an underground coal mine located
in Greene County, Pennsylvania. Inspector Pogue observed that although
the trailing cable plugs at the 8 Butt East Section's power center were
plainly marked and identified with the names of the equipment that they
powered (e.g., "S.C. 2" for shuttle car No. 2), the power center
receptacles into which the plugs were inserted were not so marked.
Instead, each trailing cable receptacle was labeled to identify the
specific circuit breaker that controlled that receptacle. (Thus, the
receptacles and circuit breakers were labelled "CKT l" through "CKT 6.")
Inspector Pogue believed that USSM's identification system for
power center components did not comply with section 75.601. After
questioning management about USSM's marking system, which represented a
departure from its prior labelling system, the inspector left the mine
without issuing a citation. He returned to the MSHA Field Office in
Waynesburg, Pennsylvania, in order to consult with his supervisor.
Inspector Pogue returned to the Cumberland Mine on September 18, 1986,
and issued a citation to USSM pursuant to section 104(a) of the Mine
Act, 30 U.S.C. § 814(a), alleging a "significant and substantial"
violation of section 75.601. The citation states in relevant part:
As observed on September 18, 1986, at 9:30 a.m. the
trailing cable receptacles were not properly
identified or labeled so as to identify the
electrical equipment plugged into the power center
receptacles for the feeder, roof drill, welder,
shuttle car no. 2, fan no. 2, scoop charger, ram car
no. 2. Charger and continuous mining machine in the
8 Butt East [section].
The citation was terminated when USSM installed labels on the trailing
cable receptacles to specifically identify the equipment plugged into
each receptacle.
In finding a violation of section 75.601, Judge Merlin credited
the testimony of the Secretary's expert witness, Willis E. Cupp, an MSHA
electrical specialist, that a "plug and a receptacle [are] one thing"
(Tr. 107), and concluded that both electrical components together
constitute a disconnecting device for purposes of section 75.601.
9 FMSHRC at 1774-75. The judge stated, "[o]nly when one is separated

1139

from the other does a disconnection occur. Therefore, they both
together should be viewed as a unit for purposes of the mandatory
standard." 9· FMSHRC at 1775. In reaching this conclusion, the judge
also found that the Secretary's consistent interpretation of section
75.601 requirements since 1979 merited weight an_d should be accorded
deference. 9 FMSHRC at 1776. 'l:_/ Accordingly, he concluded that USSM
had violated the standard as alleged. Finally, applying the
Commission's Cement Division, National GyPsum Co., 3 FMSHRC 822, 825
(April 1981) and Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984) tests,
he determined that the violation was of a significant and substantial
nature. 9 FMSHRC at 1777-78.
On review, USSM contends that only the plug end -of a trailing
cable is a "disconnecting device" within the meaning of section 75.601
and that, therefore, the receptacle into which the trailing cable is
plugged need not be "marked and identified" to correspond with that
cable plug.
We conclude that the testimony of the MSHA witnesses in this case
'l:_/
With regard to the Secretary's interpretative position, the MSHA
Coal Mine Health and Safety Inspection Manual for Underground Coal Mines
(March 9, 1978) provides, relative to section 75.601, that:

A visual means of disconnecting power from trailing
cables shall be provided so that a miner can readily
determine whether the cable is de-energized. Plugs
and receptacles located at the circuit breaker are
acceptable as visible means of disconnecting the
power. These devices shall be plainly marked. For
example, the loading machine cable disconnecting
device shall be plainly marked (LOADER), the shuttle
car cable disconnecting device shall be plainly
marked (S.C. No. 1 or S.C. No. 2) or the
disconnecting devices shall be readily identifiable
by other equally effective means.
Similarly, the MSHA Coal Mine Safety Electrical Inspection Manual,
Underground Coal Mines (June 1, 1983) states with reference to section
75.601 that:
Plugs and receptacles located at the circuit breaker
are acceptable as visual means of disconnecting
the power.
These devices shall be plainly marked for
identification to lessen the chance of energizing a
cable while repairs are being made on the cable.
For example, the loading machine cable plug shall be
plainly marked "LOADER," the shuttle car cable plug
shall be plainly marked "S.C. No. 1 11 or S.C. No. 2."
Exhibits GX-2, GX-3.

1140

affords substantial evidentiary support for the judge's finding that a
trailing cable plug and receptacle are, in essence, an integrated
disconnecting device for purposes of this standard. Although the term
"disconnecting device" is not defined in the Act or the Secretary's
regulations, the pertinent language of section 75.601 does not refer
merely to such devices in a general sense, but rather focuses on devices
"used to disconnect power from trailing cables." De-energization of
equipment powered by a trailing cable is achieved, as relevant here, by
disconnecting the trailing cable plug from a receptacle. The plug and
receptacle are designed to be used together as a means of connecting or
disconnecting power.
The Secretary's position requiring that particular trailing cable
plugs and receptacles be labelled identically is a reasonable
construction of section 75.601. ~/ Since a trailing cable plug and
receptacle are used together to effect a disconnection and since the
purpose of the identification requirement is to provide a ready means of
ascertaining trailing cable power status, it is an appropriate reading
of the standard to require that a particular receptacle be marked to
correspond to a particular trailing cable plug.
As recognized by the judge, the Secretary's position regarding the
marking of trailing cable receptacles has been applied consistently for
a number of years. Indeed, the evidence shows that the labelling system
argued for by the Secretary was used at the subject mine from 1979 until
1986. USSM first adopted and utilized the system in January 1979 after
a fatal electrical accident involving power center equipment at the
Cumberland Mine. Also, in 1984, we affirmed a "significant and
substantial" finding with respect to a violation of the cited standard
at the Cumberland Mine in 1982, where the trailing cable plugs on
certain power center equipment were not identified to correspond to the
receptacles that powered them. U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). Thus, it is apparent from the record that USSM has
had longstanding notice of MSHA's interpretation of the requirements of
section 75.601.
On review, USSM has presented no compelling reason why the
Conunission should disagree with the Secretary's interpretation. We
reject USSM's contention that MSHA's internal policy statements in the
manuals (note 2 supra) are inconsistent. Both refer to plugs and
receptacles together as acceptable means of disconnecting power. We
also reject USSM's argument that the Secretary's position with regard to
}/
While we have stated that secretarial interpretations or policy
statements contained in such relatively informal publications as
inspectors' manuais are not binding, we have also indicated that the
expertise, soundness, and reasonableness of such interpretive matter may
justify judicial deference in appropriate cases. See generally, ~·
King Knob Coal Co., 3 FMSHRC 1417, 1420-21 (June 1981). This is not a
case where the Secretary has gone beyond the appropriate bounds of
interpretation and attempted to revise or amend a mandatory standard
outside the notice and conunent publication requirements imposed by
section 101 of the Mine Act. 30 U.S.C. § 811. Cf. King Knob, supra.

section 75.601 is inconsistent with requirements imposed by electrical
safety standards at 30 C.F.R. §§ 75.511 and 75.903. As Judge Merlin
noted, USSM's own witness admitted that receptacles, as well as plugs,
are capable of being locked out and tagged before electrical repairs are
performed pursuant to section 75.511. 9 FMSHRC at 1775. Similarly,
MSHA Electrical Supervisor Gerald Davis testified that although section
75.903 is interpreted by MSHA to refer to plugs, that standard does not
specifically address trailing cable disconnecting devices, the focus of
this proceeding. See 9 FMSHRC at 1775. In any event, the present case
requires us to construe only section 75.601, and we reserve construction
of other standards addressing other concerns to cases raising such
issues.
Finally, we reject USSM's argument that a finding of violation is
precluded here because the cited system of power circuitry identification at the Cumberland Mine has been utilized in other USSM mines with
MSHA approval. The Secretary's witnesses uniformly testified and the
judge found that, with the isolated exception of USSM's Maple Creek
Mine, MSHA has consistently enforced its interpretation of section
75.601 requirements at all mines. Tr. 87-88, 139-43; 9 FMSHRC at 1776.
Although USSM's disputed circuitry identification system was also
employed at USSM's Maple Creek Mine, MSHA Electrical Supervisor Davis
testified that the use of that system resulted from temporary
acquiescence by MSHA in circuit breaker identification requirements
imposed by the Commonwealth of Pennsylvania. (MSHA's enforcement of its
usual interpretation of section 75.601 at the Maple Creek Mine has been
held in abeyance pending disposition of the present proceeding. Tr.
139-44.) The evidence thus reflects consistent enforcement of section
75.601 by MSHA over an extended period. Further, an inconsistent
enforcement pattern alone does not estop the Secretary from proceeding
under the interpretation of a standard it concludes is correct. See,
~·· King Knob, supra, 3 FMSHRC at 1421-22.
Thus, we conclude that the judge's finding of a violation of
section 75.601 is supported by substantial evidence and is legally
correct. We turn to the judge's additional finding that the violation
was of a significant and substantial nature.
The Commission has held that a violation is properly designated as
being of a significant and substantial nature if, based on the
particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or
illness of a reasonably serious nature. Cement Division, National
Gypsum Co., supra, 3 FMSHRC at 825. In Mathies- Coal Co., supra, the
Commission explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safety-contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will

1142

result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably
serious nature.
6 FMSHRC at 3-4. The Conunission subsequently stated that the third
element of the Mathies formula "requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an
event in which there is an injury." U.S. Steel Mining Co., 6 FMSHRC
1573, 1574 (July 1984).
USSM primarily contests the judge's findings with respect to the
third element of the National Gypsum test. The judge determined that
"it was reasonably likely that the wrong piece of equipment would be
energized or that delay would occur in de-energizing the correct piece
of equipment which would cause serious injury to [a] miner." 9 FMSHRC
at 1777. We conclude that substantial evidence supports these findings.
MSHA Electrical Supervisor Davis testified without rebuttal that,
"[w]hen it comes to working with cables, they are [the] most dangerous
area in the mine." Tr. 165. MSHA Electrical Specialist Cupp testified
that there is a strong potential for electrical accidents when several
pieces of equipment are being worked on simultaneously, and it can be
difficult to distinguish which trailing cable powers what equipment
because the cables "sometimes resemble spaghetti, the way they are all
wrapped around one another." Tr. 115-16. Without the required
identification of the receptacles serving as an additional visual cue to
alert the miner as to which cable is energized, a miner "may energize
the wrong trailing cable, and that would be [connected to] the piece of
equipment that is now being worked on, and an accident could occur .••. "
Tr. 116. Further, there was also evidence that identification tags
sometimes become dislodged from plugs. Tr. 47, 53, 56, 231-33. Under
MSHA's system, however, labelling the receptacles serves as a backup to
labelling the plugs and reinforces easy recognition of energization
status. Tr. 56-57, 114, 150-52. In light of the evidence of record, we
agree with the judge that the failure to label receptacles to identify
the equipment each powers contributes to a discrete safety hazard of
misidentification of power center circuitry, reasonably likely to result
in electrical shock or electrocution to miners working with or repairing
electrical equipment.
USSM does not dispute that any injury resulting from accidental
energization or de-energization of a trailing cable would be of a
reasonably serious nature. It argues, however, that the existence of
the emergency stop ("crash") button at the power center eliminates any
hazard of electrical shock created by misidentification of circuitry due
to a violation of section 75.601. Assuming arguendo that miners used
the crash button in the event of an incident, the de-energization of the
power center circuitry would not serve the purpose of the labelling
requirement, to prevent accidental energization of equipment in the
first instance. We accordingly conclude that substantial evidence
supports the judge's finding that USSM's violation of section 75.601 was
of a significant and substantial nature. Accord, U.S. Steel Mining Co.,
supra, 6 FMSHRC at 1836-18 (failure to label shuttle car trailing cable
plug constituted significant and substantial violation).

1143

For the foregoing reasons, the judge's decision is affirmed.

~
~~
Richard V. Backley, Ccmmissioner

a

Yoy~le,d.~
comtniSSi'er

Commissioner

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Billy M. Tennant, Esq.
U.S. Steel Mining Co., Inc.
Law Department
600 Grant Street
Pittsburgh, PA 15230
Michael Holland, Esq.
UMWA

9-00 15th St., N.W.
Washington, D.C. 20005

Chief Administrative Law Judge Paul Merlin

i 1144

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

September 26, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of BOBBY G. KEENE
Docket No. VA 86-34-D

v.

S&M COAL COMPANY, INC. ,
TOLBERT P. MULLINS, and
PRESTIGE COAL COMPANY, INC.

BEFORE:

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

DECISION

BY:

Ford, Backley, Doyle and Nelson

This proceeding involves a discrimination complaint brought by the
Secretary of Labor on behalf of Bobby G. Keene against S&M Coal Company,
Inc. ("S&M"), Tolbert P. Mullins, and Prestige Coal Company, Inc.
("Prestige"), pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1982) ("Mine Act"). Following a hearing
on the merits, Commission Administrative Law Judge Gary Melick concluded
that S&M had discriminated against Keene in violation of section
lOS(c)(l) of the Mine Act by discharging him for engaging in a protected
work refusal, 30 U.S.C. § 815(c)(l) l/; that Prestige, as the successor-

ll

Section lOS(c)(l) provides in pertinent part:
Discrimination or interference prohibited;
complaint; investigation; determination; hearing
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

1145

in-interest to S&M, is jointly and severally liable for the consequences
of this discriminatory discharge; and that subsequent to S&M's discriminatory.discharge of Keene, Mullins personally discriminated against
Keene in violation of section 105(c)(l) by refusing to reemploy Keene
except under illegal and hazardous conditions. 9 FMSHRC 401 (March
1987) (ALJ). We granted the petition for discretionary review filed
collectively by S&M, Prestige, and Mullins ("the operators"). For the
reasons that follow, we conclude that the judge's finding that S&M
discriminatorily discharged Keene for engaging in a protected refusal to
work is supported by substantial evidence, but that the judge erred in
finding that Prestige was a successor-in-interest to S&M and in finding
that Mullins, as·an individual, discriminated against Keene.
Accordingly, we affirm in part and reverse in part.
I.

From September 1985 through February 13, 1986, Keene was employed
by S&M at its No. 4 underground mine in Tookland, Virginia, as a
certified electrical repairman and maintenance foreman. Keene's duties
included maintaining the electrical equipment in the mine and keeping
the electrical examina~ion books for federal and state regulatory
purposes. 2/ Prior to his arrival at S&M, Keene held a similar position
at Mullins Coal Company until Tolbert Mullins, the president of Mullins
Coal as well as S&M, requested that Keene transfer to S&M.
Keene testified that during his employment at S&M he became
concerned that "there was too much bridging going on." Dec. 2 Tr.
38. 'J/ ("Bridging" or "bridging-out" is the practice of rewiring
electrical equipment in order to bypass the equipment's disconnecting
devices, usually the circuit breaker, thus rendering the safety features
ineffective. Dec. 2 Tr. 38, 164.) According to Keene, two or three
weeks prior to February 13, 1986, Mine Superintendent Monroe Nichols
asked him on two separate occasions to bridge-out the ground fault
monitor systems on the transformer and the continuous mining machine
("continuous miner"). !!_/ Keene testified that he refused to bridge-out
complaint under or related to this [Act], including
a complaint notifying the operator or the operator's
agent, or the representative of the miners at the
coal or other mine of an alleged danger or safety or
health violation in a coal or other mine •...
30 U.S.C. § 815(c)(l).
~/

30 C.F.R. § 75.1804 provides that results of required examinations
of electrical equipment be recorded in a book titled "Examination of
Electrical Equipment."

'J/

The hearing in this matter took place on December 2 and 3, 1986.
Since the transcripts for-each day are separately paginated, transcript
references are by date and page number.

!!_/
According to Larry Brown, an electrical inspector for the
Department of Labor's Mine Safety and Health Administration ("MSHA"),

1146

the ground fault monitor systems on both occasions and made safety
complaints about the use of the procedure to Nichols and Jerry Looney,
the section foreman.
At the beginning of the day shift on February 13, 1986, Keene
again voiced his concerns about the practice of bridging, this time to
the other crew members accompanying him into the mine. He told the
miners that the "bridging was going to have to be stopped." Dec. 2 Tr.
44, 116, 140. (One of the miners to whom Keene spoke, Darrell Matney,
testified that prior to February 13 he had heard Keene make similar
safety complaints and tell Nichols that if the bridging were not stopped
"somebody's going to get killed. 11 Dec. 2 Tr. 138-40.) Around 10:30
a.m., after the crew 3ad started to work, the circuit breaker of a
continuous miner tripped, thereby rendering the equipment inoperative.
Keene repaired the cable leading to the continuous miner and mining was
resumed. Shortly thereafter, the circuit breaker at the transformer
tripped and the continuous miner again was rendered inoperative. Keene
twice attempted to reset the circuit breaker, but to no avail. Keene
tested the cables and plugs with a voltmeter and, after determining that
the cause of the short circuit was in the cable between a splice and the
continuous miner, he informed Looney of his conclusion. According to
Keene and Matney, Looney then instructed Keene to bridge-out the ground
fault monitor system at the transformer. When Keene refused for safety
reasons and insisted on repairing the cable, Looney told Keene to "get
[his] bucket and go to the house." Dec. 3 Tr. 11-12; Dec. 2 Tr. S3,
144. Understanding this to be a discharge, Keene left the section. ~/
However, before leaving, Keene told Looney that he planned to report the
incident to MSHA. Dec. 3 Tr. 12.
On his way out of the section, Keene met Mine Superintendent
Nichols and told him that Looney had fired him for refusing to bridgeout the ground fault monitor system on the continuous miner. According
to Keene, Nichols "laughed the matter off" and inquired as to whether
Keene was certain there was a problem. Dec. 2 Tr. SS. Keene assured
Nichols that there was a problem with the cable and informed him that he
would report the matter to MSHA.
The next day, February 14, 1986, Keene filed a complaint with MSHA
alleging that he was discriminatorily discharged by S&M in violation of
the ground fault monitor system is a small closed circuit that monitors
the ground wire and is intended to protect miners from contacting
electrical current. If a break in the ground occurs, the system
interrupts current to the cable and the electrical equipment. Bridgingout the ground fault monitor system renders it useless as a protective
device and potentially subjects anyone coming into contact with the
equipment to a fatal electrical shock. Dec. 2 Tr. 162-64; see also id.
at S7-58.
~/

Both the Conunission and the Sixth Circuit Court of Appeals agree
that this language is synonymous with a discharge in the mining
industry. See, e.g., Moses v. Whitley Development Corp., 4 FMSHRC 1475,
1479 (August 1982), aff'd sub nom. Whitley Development Corp. v. FMSHRC,
No. 84-3375, slip op. at 2 (6th Cir. July 31, 1985).

1147

section 105(c)(l) of the Mine Act. MSHA initiated an investigation of
the complaint. Prior to a conclusion by MSHA regarding the merits of
the complaint and at the suggestion of MSHA's investigator, Keene
telephoned Mullins on February 26, 1986, to discuss a possible
resolution of the complaint. After discussing a monetary settlement,
Keene and Mullins discussed Keene's returning to work at S&M. Mullins
requested that Keene return to work at his previous position as a
certified electrical repairman and maintenance foreman. Keene testified
that, in response, he explained that he would not return to his old
position because he did not want to be "responsible for the electrical
[examination] books and conditions that everybody was bridging-out
inside the mines." Dec. 2 Tr. 61. Keene further testified that when he
requested a second shift job operating a shuttle car, Mullins replied
that only Keene's original job as electrician on the day shift was
available and that he could not pay electrician's wages to someone not
doing an electrician's job. Keene testified that Mullins said that
Keene would not have to record everything he saw or found in the
examinations books. Keene summed up the conversation as follows:
"[Mullins] told me that I would have to come back to my original job
under the original circumstances I was working under . . . . I told [him]
•.. that it was too big a hazard for me to come back as electrician on
day shift." Dec. 2 Tr. 62-63. Therefore, Keene refused to return to
work at S&M under the existing conditions. In May 1986, S&M was shut
down due to economic conditions.
Prestige, a surface coal mining operation, commenced mining on
November 1, 1986, "in the same hollow, about a mile and a half up [from
S&M] ... on the top of the mountain." Dec. 2 Tr. 196-97, 202-03.
According to Mullins' testimony, he and his wife own all of S&M and
about 55% of Prestige, with the remaining interest being owned by three
other unrelated individuals. Prestige had been incorporated for more
than a year, awaiting its strip mining permit, before it commenced
operations. Dec. 3 Tr. 196. Prestige does not mine on the same lease
as that mined by S&M, nor does it utilize any of S&M's equipment. Dec.
3 Tr. 39. All of the equipment at Prestige's operation is diesel,
rather than electrical, and a certified electrician is neither required
nor employed. Dec. 3 Tr. 36. Of its eight employees, only two were
previously employed at S&M. Dec. 3 Tr. 204.
Subsequent to S&M's shutdown, MSHA concluded its investigation of
Keene's complaint and determined that Keene had been unlawfully fired by
S&M on February 13, 1986. Accordingly, the Secretary filed an action
against S&M on Keene's behalf alleging that he was discharged by S&M for
refusing to continue the illegal and unsafe practice of rendering safety
features inoperative on electrical equipment. Subsequently, the
Secretary moved, on August 4, 1986, for leave to file an amended
complaint naming Tolbert Mullins, his wife, Shirley Mullins, and Jewell
Smokeless Coal Corporation ("Jewell Smokeless") as additional
respondents, alleging that they were liable for damages arising from the
February 13, 1986, act of discrimination. The motion was granted but
before the hearing Jewell Smokeless reached a settlement with Keene
whereby it agreed to require any subsequent operator of the mine where
Keene had worked to rehire him. Jewell Smokeless was dismissed from the
proceeding.

1148

After a hearing, the administrative law judge concluded that Keene
was improperly discharged in violation of the Act when he was given the
choice of performing the illegal bridging-out procedure or leaving the
section. 9 FMSHRC at 405. The judge found that Keene had a good faith,
reasonable belief that the procedure was hazardous and that its inherent
dangers "were obvious and admittedly known to both Looney and Nichols,"
thereby obviating any need for Keene "to further 'conununicate' the
nature of the hazard to mine management." Id.
The judge also found that Mullins, as a "person" within section
105(c)(l), individually discriminated against Keene when Mullins
"refus[ed] to.reemploy Keene except under illegal and dangerous
conditions." 9 FMSHRC at 405-06.
Finally, the judge found that, within the framework of the
criteria set forth by the Commission in Munsey v. Smitty Baker Coal Co.,
Inc., 2 FMSHRC 3463 (1980), aff'd sub nom. Munsey v. FMSHRC, 595 F.2d
735 (D.C. Cir. 1978), 701 F.2d 976 (D.C. Cir. 1983), cert. denied 464
U.S. 857 (1983), Prestige, which had been added as an additional
respondent at the beginning of the hearing, was a successor-in-interest
to S&M and was thus jointly and severally liable for S&M's
discriminatory actions. 9 FMSHRC at 406.
To remedy the unlawful discrimination, the judge ordered S&M and
Prestige, jointly and severally, to pay Keene costs and backpay with
interest. The judge also ordered Mullins, jointly and severally with
S&M and Prestige, to pay costs and backpay dating from Mullins'
subsequent act of discrimination on February 26, 1986. The judge
further ordered Prestige to hire Keene in a capacity conunensurate with
his skills and at no less pay than he was receiving at the time of his
discharge. S&M, Prestige, and Mullins, jointly and severally, were
ordered to pay a civil penalty of $1,000. 9 FMSHRC at 407.
II.

The principal issues presented on review are whether Keene engaged
in a protected work refusal on February 13, 1986, for which he was
unlawfully discharged, whether Prestige is a successor-in-interest to
S&M and is thereby jointly and severally liable for S&M's obligations to
Keene arising from any such discriminatory actions, and whether Mullins,
as an individual, discriminated against Keene. On review, the operators
assert that the evidence is insufficient to support a finding that S&M
and Mullins discriminated against Keene or that Prestige is a successorin-interest to S&M.
The Commission's role in reviewing a judge's decision is to
determine whether his factual findings are supported by substantial
evidence and whether the judge correctly applied the law. 30 U.S.C.
§ 823(d)(2)(A)(ii). See also Universal Camera Corp. v. NLRB, 340 U.S.
474 (1951); Thurman v. Queen Anne Coal Company, 10 FMSHRC 131, 133
(February 1988). The initial question is whether S&M discriminated
against Keene by discharging him on February 13, 1986. The general
principles governing analysis of discrimination cases under the Mine Act
are settled. In order to establish a prima facie case of discrimination

1149

under section 105(c) of the Act, a complaining miner bears the burden of
production and proof in establishing that (1) he engaged in protected
activity arid (2) the adverse action complained of was motivated in any
part by that protected activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd
on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3rd Cir. 1981); Secretary on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 817-18 (April 1981). The operator may rebut the
prima facie case by showing either that no protected activity occurred
or that the adverse action was in no part motivated by protected
activity. If an operator cannot rebut the prima facie case in this
manner, it nevertheless may defend affirmatively by proving that it also
was motivated by the miner's unprotected activity and would have taken
the adverse action in any event for the unprotected activity alone.
Pasula, supra; Robinette, supra. See also Eastern Assoc. Coal Corp. v.
FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Baich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically approving the
Commission's Pasula-Robinette test). Cf. NLRB v. Transportation
Management Corp., 462 U.S. 393, 397-413 (1983)(approving nearly
identical test under National Labor Relations Act).
The motivation for Keene's discharge is not disputed. All of the
parties agree that Keene refused to perform the bridging-out procedure
on February 13, 1986, and was discharged by the section foreman because
of that refusal. The primary issue presented, therefore, is whether
Keene's work refusal was protected under the Mine Act. If the work
refusal was protected, the discharge was unlawful. See, e.g., Secretary
of Labor v. Metric Constructors, Inc., 6 FMSHRC 226, 229-30 (February
1984), aff'd sub nom. Brock v. Metric Constructors, Inc., 766 F.2d 469,
472-73 (11th Cir. 1985); Secretary on behalf of Dunmire & Estle v.
Northern Coal Co., 4 FMSHRC 126, 132-33 (February 1982); Smith v. Reco,
Inc., 9 FMSHRC 992, 994-95 (June 1987).
A miner has the right under section 105(c) of the Mine Act to
refuse to work if the miner has a good faith, reasonable belief that
continued work involves a hazardous condition. Pasula, supra, 2 FMSHRC
at 2789-96; Robinette, supra, 3 FMSHRC at 807-12. See also, e.g.,
Metric Constructors, supra. Where reasonably possible, a miner refusing
to work ordinarily must communicate or attempt to communicate to some
representative of the operator his belief that a hazardous condition
exists. Reco, supra, 9 FMSHRC at 995; Dunmire & Estle, supra, 4 FMSHRC
at 133-35. See also Miller v. Consolidation Coal Co., 687 F.2d 194,
195-97 (7th Cir. 1982)(approving Dunmire & Estle communication
requirement).
Keene testified that he was concerned about the continued practice
of bridging-out electrical equipment because anyone touching bridged-out
equipment could be electrocuted. MSHA's electrical inspector, Larry
Brown, confirmed that individuals who contact bridged-out electrical
equipment risk fatal electrical shock. Brown testified without dispute
that bridging-out is violative of two mandatory safety standards,

1150

30 C.F.R. § 75.900 and § 75.902. ~/ There is no suggestion in the
record that Keene's fear of bridging-out electrical equipment was not
real. Given Keene's testimony about his safety concerns, and the
inspector's confirmation that the practice of bridging-out electrical
equipment can have serious, even fatal, consequences for miners, we hold
that substantial evidence supports the judge's conclusion that Keene
"entertained a good faith and reasonable belief that the procedure of
'bridging' was hazardous to himself or to anyone coming into contact
with the 'bridged-out' miner." 9 FMSHRC at 405.
We also conclude that Keene met the Act's communication requirement. The judge found that the dangers inherent in bridging-out
electrical equipment were obvious and admittedly known to the management
of S&M and concluded that under these circumstances there was no need
for Keene to "further 'communicate' the nature of the hazard to S&M."
9 FMSHRC at 405. Substantial evidence supports this finding. The
testimony of Section Foreman Looney and Mine Superintendent Nichols
reveals that mine management had sanctioned a practice it knew to be
hazardous and violative of mandatory safety standards. Dec. 3 Tr. 12;
Dec. 2 Tr. 227-28. In addition, Keene had previously expressed, but to
no avail, his safety concerns regarding the practice. The Mine Act does
not require a miner refusing work to communicate his belief in the
health or safety hazard at issue if such communication would be futile.
Dunmire & Estle, supra, 4 FMSHRC at 133. Thus, we agree with the judge
that in the face of such an obvious and admittedly known safety hazard,
there was no requirement that Keene further communicate his safety
concerns to the operator on February 13, 1986.
We conclude, therefore, that there is substantial evidence to
support the judge's finding that Keene had a good faith, reasonable
belief in a hazardous condition and that he communicated his safety
concerns to S&M. As a result, Keene engaged in a protected work
~/

30 C.F.R. § 75.900, which restates 30 U.S.C. § 869(a), provides:
Low- and medium-voltage power circuits serving
three-phase alternating current equipment shall be
protected by suitable circuit breakers of adequate
interrupting capacity which are properly tested and
maintained as prescribed by the Secretary. Such
breakers shall be equipped with devices to provide
protection against undervoltage, grounded phase,
short circuit, and overcurrent.

30 C.F.R. § 75.902, which restates 30 U.S.C. § 869(c), provides in
pertinent part:
[L]ow- and medium-voltage resistance grounded
systems shall include a fail-safe ground check
circuit to monitor continuously the grounding
circuit to assure continuity which ground check
circuit shall cause the circuit breaker to open when
either the ground or pilot check wire is broken ....

1151

refusal. See also Secretary on behalf of Cameron v. Consolidation Coal
Co., 7 FMSHRC 319, 321 (March 1985), aff'd sub nom.• Consolidation Coal
c;:- v. FMSHRC, 795 F.2d 364, 367-68 (4th Cir. 1986)(Mine Act extends
protection against discrimination to miner who refuses to perform an
assigned task because such performance would endanger the health or
safety of another miner). Therefore, we hold that Keene was
discriminatorily discharged by S&M on February 13, 1986.
III.

The next question is whether the judge properly found Prestige to
be jointly and severally liable for S&M's unlawful act of discrimination
as a successor-in-interest to S&M. The Commission has recognized that
in certain cases the imposition of liability on a successpr is
appropriate. Munsey, supra; Secretary on behalf of Corbin v. Sugartree
Corp., 9 FMSHRC 394 (March 1987), aff'd sub nom. Terco v. FMSHRC, 839
F.2d 236 (6th Cir. 1987).
However, before the appropriateness of imposing liability can be
resolved, it is necessary in the first instance to determine whether
Prestige is even a successor. In the cases in which the Commission and
the courts have found successorship liability there has been some type
of transaction (a "transactional element") with respect to the business
between the predecessor and the entity against which liability is being
asserted and/or there has been a continuation of activity at the
predecessor's site. In Munsey, supra, for example, the company that was
held liable as a successor had acquired leases and mining equipment from
the former employer, substantially replacing the predecessor's
operation. Similarly, in Terco, supra, successorship liability attached
because there was substantial continuity of business interests at the
same site.
Assumption of the predecessor's position by the successor
underlies the successorship cases. For example, in Wiley & Sons v.
Livingston, 376 U.S. 543 (1964), successorship was found where the
predecessor company was merged into the acquiring company, a process
that also involved the wholesale transfer of the predecessor's employees
to the successor. The Court observed that for an employer to be
considered a successor, there must be a substantial continuity in the
identity of the business enterprise before and after a change, Wiley,
supra, 376 U.S. at 551. Another example of the acquisition element
underlying these cases can be found in Golden State Bottling Co. v.
NLRB, 414 U.S. 168, (1973) which involved a bona fide purchase of a
company that had committed an unfair labor practice. Issuance of a
reinstatement and back-pay order was upheld against the acquiring
company, which occupied the site where the unfair practice had occurred.
In this case there has been no transactional element nor has there
been a continuation of activity at the same site. Rather, Prestige is a
pre-existing company that commenced mining some months lat.er at a
different site on a lease owned by a different, unrelated company, using
equipment that was not acquired from, nor previously used by, S&M.
Thus, Prestige cannot be considered to be a successor and it cannot
properly be assessed with successorship liability.

1152

However, even if Prestige had occupied the status of a successor,
we would still conclude that it should not be held liable for the
consequences of S&M's act of discrimination. In determining whether a
successor should be liable to remedy the unlawful discrimination of its
predecessor, the Commission has followed the courts and has approved
consideration of nine specific factors:
(1) whether the successor company had notice of the
charge, (2) the ability of the predecessor to
provide relief, (3) whether there has been a
substantial continuity of business operations,
(4) whether the new employer uses the same plant,
(5) whether he uses the same or substantially the
same work force, (6) whether he uses the same or
substantially the same supervisory personnel,
(7) whether the same jobs exist under substantially
the same working conditions, (8) whether he uses the
same machinery, equipment and methods of production
and (9) whether he produces the same products.
2 FMSHRC at 3465-66 (restating factors set forth in EEOC v. MacMillan
Bloedel Containers, Inc., 503 F.2d 1086, 1094 (6th Cir. 1974)); see also
Terco, supra, 839 F.2d at 238-39. These similar factors have been
applied under both the Civil Rights Act of 1964 (~, MacMillan
Bloedel, supra) and the National Labor Relations Act (~, NLRB v.
Winco Petroleum Co., 668 F.2d 973, 976-78 (8th Cir. 1982)).
As pointed out in Munsey, supra, 2 FMSHRC at 3467, and Sugartree,
supra, 9 FMSHRC at 398, the key factor for determining successorship
liability is whether there is a substantial continuity of business
operations. This question is fact intensive and must be resolved on a
case-by-case basis. Howard Johnson, Inc. v. Detroit Local Joint
Executive Board, 417 U.S. 249, 256 (1974). In Sugartree, 9 FMSHRC at
398, the Commission emphasized that factors (3) through (9) provide the
framework for analyzing whether there is a continuity of business
operations and work force between the successor and its predecessor.
Reviewing these factors in the context of this case, we conclude that
substantial evidence does not support a finding that a substantial
continuity of business operations exists between S&M and Prestige.
Prestige is a surface mining operation whereas S&M was an
underground operation. Prestige's mine is located a mile and a half
from S&M's mine and Prestige mines under a different coal lease.
Moreover, the judge found that only two of Prestige's eight employees
were employed previously by S&M. 9 FMSHRC at 406. (While the judge
also found that Monroe Nichols, the supervisor at S&M, is the supervisor
at Prestige, the record does not support such a finding. Zf) Therefore,
not only do S&M and Prestige have different physical operations,
Prestige does not use the same or substantially the same work force or

ZI

There was no testimony as to Nichols' actual job at Prestige.
Tolbert Mullins testified that another individual holds the position of
supervisor. Dec. 2 Tr. 215.

1153

supervisory personnel as S&M. Furthermore, the judge found that the
machinery, _equipment, and mining methods of Prestige and S&M are not the
same and that the specific jobs differ between the two mining
operations. 9 FMSHRC at 406. In spite of this finding, and, in spite
of the uncontradicted testimony that a certified electrician was neither
required nor employed, the judge· concluded that "many of the [job]
skills are transferable." Id. The record contains no evidentiary
support for this conclusion. ~/
As previously noted, there has been no purchase or any other
transaction or activity between Prestige and S&M with respect to S&M's
business operations, assets, or stock as is frequently the situation in
successorship cases. See, e.g., Howard Johnson, supra (successor was
bona fide purchaser of assets of a restaurant and motor lodge); Wiley,
supra (predecessor disappeared through a merger); Sugartree, supra
(predecessor's leases were acquired). The doctrine of successorship
liability was not intended to encompass a situation such as in this case
where the record establishes that the alleged successor does not share
with the predecessor the same physical plant, substantially the same
work force, the same machinery, equipment, or methods of production, the
same jobs and job skills, or the same business operations. While our
dissenting colleague emphasizes the control that Mullins exercises over
both S&M and Prestige and the interrelationship between the two
corporations, those factors go not to the issue of successorship but
rather to an alter-ego theory of liability in which the corporate veil
is pierced in order to reach the controlling shareholder. The Secretary
withdrew that theory of liability at the hearing (Dec. 3 Tr. 71), the
judge made no finding of fact with respect to it, and it is not before
us on review. Accordingly, we reverse the judge's finding that Prestige
is a successor-in-interest to S&M and is jointly and severally liable
for remedying S&M's illegal act of discrimination.

IV.
The final issue is whether Mullins is individually liable for
discriminating against Keene in violation of section lOS(c)(l) of the
Act. The judge accepted Keene's testimony that during the telephone
conversation of February 26, 1986, initiated by Keene at MSHA's
suggestion, Mullins told Keene that he could return to work as an
electrician and that Keene would not have to report instances of
bridged-out electrical equipment in the electrical examination books.
9 FMSHRC at 406. On this basis, the judge found that Mullins, as an
individual, was a "person" discriminating against Keene by "refus[ing]
to reemploy Keene except under illegal and dangerous conditions."
Id. 21 We hold that substantial evidence does not support the judge's
~/

Although Prestige, through Mullins, had notice of the charge of
discrimination, and although S&M and Prestige both mine coal, these
factors along with S&M's inability to provide relief do not counterbalance a determination that there exists no continuity of business
operations between S&M and Prestige.

21

During closing arguments, in a colloquy concerning the Secretary's

1154

finding that Mullins as a "person" unlawfully discriminated against
Keene •.
According to Keene, he had, at MSHA's suggestion, approached
Mullins to discuss a possible settlement of his discrimination complaint
against S&M. When a monetary solution of the complaint could not be
reached, the subject of Keene's possible return to work was discussed.
Keene's testimony reveals a request by him for a second shift job and a
response by Mullins that no second shift jobs were available. Mullins
then offered Keene his old job back under the same circumstances and
suggested to him that he would not have to record everything that he
found. Wh1le this offer did not resolve Keene's safety concerns,
neither did it suggest any additional adverse action against Keene by
Mullins, either in his role as president of S&M or outside of that role.
We find no evidence that would cause the conversation to be
characterized as anything other than an attempt by Keene and Mullins, in
his role as president of S&M, to settle the original discrimination
complaint. That their negotiations were unsuccessful does not change
their character as settlement negotiations between Keene and S&M. Thus,
we view this conversation as an outgrowth of the original illegal
discharge by S&M and not as a separate act of unlawful discrimination by
Mullins individually. Under these circumstances, we hold that Keene's
testimony regarding the crucial aspects of the conversation does not
support a finding by the judge of a separate act of discrimination by
Mullins individually.
For the reasons stated above, we conclude that Keene was
discriminatorily discharged by S&M for engaging in a protected work
refusal on February 13, 1986. We also hold that Prestige is not a
successor-in-interest to S&M and is not jointly or severally liable for
the consequences of S&~'s discriminatory discharge. Finally, we
conclude that the judge erred in holding that Mullins personally
discriminated against Keene during the telephone conversation 0f
February 26, 1986.
We recognize that our conclusion requires Keene to seek his remedy
solely against S&M, which discontinued operations and is without liquid
assets. The fact that Mullins, individually, and Prestige may be better
able to provide relief does not justify a finding of individual
liability against Mullins, where it is not supported by substantial
evidence, nor a finding of successorship liability against Prestige
where no substantial continuity of business operations exists.
Accordingly, the judge's decision is affirmed in part and reversed
in part. That portion of the judge's order requiring Prestige and
Mullins to pay costs, backpay, interest, and a civil penalty for the
theories of liability, the judge suggested to the Secretary's counsel
that the telephone conversation between Mullins and Keene provided a
basis for establishing Mullins' personal liability apart from S&M's
prior discriminatory actions. Dec. 3 Tr. 64-65. It was during this
same colloquy that the Secretary's counsel stated that she was
abandoning the claim that Mullins was liable for S&M's discriminato~y
acts on an alter-ego theory. Dec. 3 Tr. 70.

1155

violation of section lOS(c) is vacated, as is that portion requiring
Prestige to hire Keene.

~d-~.YC~le, c7E_iSSiOT

~

•

'.J

(}

I

'_..a.__~1
~-<.'-vv
L. Clair Nelson, Connnissioner
,

1156

Lastowka, Commissioner, concurring in part and dissenting in part:
I agree with the majority that substantial evidence supports the
factual findings underlying the judge's conclusion that Bobby G. Keene
was illegally discharged for engaging in a work refusal protected by the
Mine Act. In fact, the evidence in this record concerning the illegal
and dangerous practice of bridging out electrical equipment at the S&M
Mine is overwhelming. 1/ In refusing to carry out this unsafe and illegal
act, Keene acted in a manner consistent with the dictates of the Mine Act.
As a consequence, however, he lost his job.
Although the majority upholds the judge's finding of illegal discrimination, Keene's victory proves purely pyrrhic. By vacating the judge's
findings that Tolbert Mullins personally discriminated against Keene and that
Prestige Coal Company is a successor to S&M, the majority effectively denies
Keene any remedy for the wrong they agree he has suffered. In doing so the
majority not only usurps the fact-finding role of the administrative law judge,
but also adopts a far too restrictive view of the reach of the Mine Act's antidiscrimination provision and the remedies available thereunder. Accordingly,
I dissent from those parts of the majority decision reversing the decision of
the administrative law judge.
I.

The Individual Liability of Tolbert Mullins
In their analysis of the issues presented by this case the majority
first resolves a question of remedy, i.e., successorship, before determining the extent of the illegal discrimination suffered by Keene. Before
the question of "who owes what" to Keene can be determined, however, it
must first be determined "who did what" to him. Therefore, I will first

1/
The judge accurately described the serious nature of the violation as
follows:
I find the acts of discrimination by S&M and Tolbert
Mullins to be particularly serious in this case because
of the direct impact they had on the safety of miners.
Here the practice of bridging-out safety features on
electrical equipment continued unabated after the discharge of Mr. Keene and after his discharge it was
highly unlikely that anyone else would have protested
the dangerous practice. In addition Mr. Mullins and
the other S&M officials knew that they were requiring
Keene to perform illegal and dangerous acts. Their
discharge (and refusal to take back) Keene for refusing
to perform such tasks was therefore willful.
9 FMSHRC at 407.

1157

address the question of Mullins' personal liability for a separate act of
discriminatio~ against Keene.
On this issue the judge stated:
The Complainant in this case also alleges that Tolbert
Mullins is individually liable as a "person" unlawfully
discriminating against him under section 105(c)(l) ••••
According to Keene, on February 26, 1986, he telephoned
Mr. Mullins at the request of the MSHA investigator in
efforts to settle the case. Keene says that during the
course of this conversation Mullins told him that he
could have his job back but only as an electrician. Moreover in response to Keene's concerns about the illegal
practice at S&M of "bridging-out" electrical equipment
Mullins purportedly responded that Keene would not have
to report the practice in the electrical inspection
books. */ This conversational exchange is not disputed
and accordingly I accept Keene's testimony in this
regard. This evidence clearly supports a finding that
Mullins, as an individual, was a "person" discriminating
against Keene in violation of the Act in his refusal to
reemploy Keene except under illegal and dangerous
conditions. See Munsey v. Smitty Baker Coal Company,
Inc. ,et al, 2 FMSHRC 3463 (1980).

*/ It is undisputed that Keene as a certified electrician
would be legally required to report such violative conditions in the electrical inspection books.
9 FMSHR.C at 405-406.
The only challenge to this portion of the judge's decision raised by
Mullins in his petition for discretionary review is that Keene's version
of the telephone conversation was, in fact, disputed. Testimony by Mullins
concerning the telephone conversation is cited as creating a dispute as to
its contents. Petition for Review at 3. In his brief on review Mullins
simply reiterates this bare-bones factual challenge. Brief at 5.
Thus, Mullins has argued only on the factual basis that, contrary to the
judge's finding, the content of the conversation was not as Keene had related.
The judge, however, resolved this factual question in favor of Keene. Under
the Mine Act credibility determinations are the province of the trier of fact
(e.g., Hall v. Clinchfield Coal Co., 8 FMSHR.C 1624, 1629-30 (November 1986)),
and we are bound by a substantial evidence standard of review. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). Donovan on behalf of Chacon v. Phelps Dodge Corp.,
709 F.2d 86 (D.C. Cir. 1983). Measured against these standards, Mullins
has presented no compelling argument for overturning the factual findings
of the judge concerning the telephone conversation.
The majority goes further, however, and bases their reversal of the
judge's finding that Mullins personally discriminated against Keene on the
fact that Mullins' act of discrimination occurred during an attempt to settle
Keene's complaint. The majority characterizes Mullins' act as a mere
"outgrowth of the original illegal discharge by S&M and not as a separate
act of unlawful discrimination by Mullins individually." Slip op. at U.

1158

Because this argument was never raised by Mullins, the issue is not
properly before the Commission. The Mine Act expressly limits the Commission's authority in reviewing administrative law judges' decisions to only
those· questions raised by a party in its petition for review (30 U.S.C.
§§ 823(d)(2)(A)(iii)) unless the Commission itself expressly identifies
additional issues for review in accordance with the procedures set forth in
30 U.S.C. § 823(d)(2)(B). Donovan on behalf of Chacon v. Phelps Dodge Corp.,
supra, 709 F.2d 86, at 90-92. The Commission did not direct review sua
sponte of any additional issues. Therefore, the majority errs in basing
their reversal of the judge on an issue not raised by the parties and
appearing as an issue for the first time in their decision.
In any event, I cannot agree with their view that because an act of
illegal discrimination was committed while Keene was attempting to resolve
his safety complaint short of litigation, it falls outside the reach of
section 105(c). Given the administrative law judge's supported finding that
Keene's return to work was conditioned by Mullins on Keene's not reporting
hazardous conditions or illegal activities, surely Mullins' act contravenes
section 105(c)'s mandate that "[n]o person shall ••• interfere with the exercise of the statutory rights of any miner ••• or applicant for employment •••• "
30 U.S.C. § 815(c). The legislative history underlying section 105(c) emphasizes that the section "is to be construed expansively to assure that miners
will not be inhibited in any way in exercising any rights afforded by the
"[Mine Act]" and that it was Congress' intent "to protect miners against not
only the common forms of discrimination ••• but also against the more subtle
forms of interference •••• " S. Rep. 95-191, 95th Cong., 1st Sess. 36 (1977),
reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 624 (1978)(emphasis added). Congress further "emphasized that the
prohibition against discrimination applies not only to the operator but to any
person directly or indirectly involved." Id. (emphasis added). Thus, in view
of the intended broad reach of section 105(c), the fact that Mullins' illegal
act occurred during the course of a discussion to determine whether a prior
illegal act could be remedied out of court can in no way serve as a shield
protecting Mullins from the application of section 105(c). Such a result
not only controverts section 105(c), but also perverts the Act's settlement
process and flies in the face of sound public policy. ];_/
In sum, the majority errs in sua sponte interjecting an issue not properly before the Commission and then incorrectly resolving the issue raised.
In the end, the question of Mullins' personal liability for his violation of
section 105(c) boils down to nothing more than a substantial evidence question.
The judge's conclusion crediting Keene's version of the conversation over
Mullins' has support in the record and rests on credibility grounds. The
majority therefore errs in substituting its judgment for that of the trier
of fact. Donovan on behalf of Chacon v. Phelps Dodge Corp., supra, 709 F.2d
at 94.
2/
Concluding that an illegal act committed during a settlement discussion
can form the basis for a separate cause of action does not, as the majority
may feel, "chill" the settlement process. Proper settlements can not be
conditioned on illegal terms. The practical impact, if any, of refusing to
except settlement discussions from the reach of section 105(c) is that proper
settlements will go forward, improper settlements will not. That is as it
should be.

1159

II.
Prestige Coal Company's Liability
The administrative law judge held Prestige Coal Company jointly and
severally liable to Keene for costs, damages and reinstatement as a
successor-in-interest to S&M. In reaching this conclusion the judge followed the framework for analysis of successorship issues set forth by the
Commission in Munsey v. Smitty Baker Coal Co., 2 FMSHRC 3463 (1980), aff'd
in relevant part sub nom. Munsey v. FMSHRC, 701 F.2d 976 (D.C. Cir. 1981),
and Secretary on behalf of Corbin v. Sugartree Corp., 9 FMSHRC 394 (1987),
aff'd sub nom. Terco v. FMSHRC, 839 F.2d 236 (6th Cir. 1987), petition for
cert. fIIecr,-56 U.S.L.W. 3770 (U.S. April 5, 1988)(No. 87-1808). Specifically, the judge applied the nine-factor successorship test set forth in
EEOC v. MacMillan Bloedel Containers, 503 F.2d 1086 (6th Cir. 1974), which
the Commission adopted in Munsey and followed in Sugartree and found based
on the evidence that Prestige was liable as S&M's successor.
As previously discussed, in reviewing an administrative law judge's
findings of fact the Mine Act imposes on the Commission a substantial evidence standard of review. 30 U.S.C. § 823(d)(2)(A)(ii)(I). The question
of whether Prestige is a successor to S&M is a question of fact subject to
review under the substantial evidence standard. See Fall River Dyeing &
Finishing Corp. v. NLRB,
U.S.
, 107 ~Ct. 2225, 2235, 96
L.Ed. 2nd 22, 37 (1987); Terco v. FMSHRC, 839 F.2d at 240. Therefore, the
Commission's "task is to determine whether the record contains 'such relevant evidence as a reasonable mind might accept as adequate to support [the
judge's] conclusion."' Mid-Continent Resources, 6 FMSHRC 1132, 1137 (May
1984), quoting Consolidation Edison Co. v. NLRB, 305 U.S. 197, 229 (1938);
~also, Donovan on behalf of Chacon v. Pheyps Dodge Corp., supra. Measured
against this standard, the judge's finding that Prestige was a successor to
S&M is supported by substantial evidence and must be affirmed.

The nine-factor test guiding resolution of successorship issues includes
consideration of the following: (1) whether the successor company had notice
of the charge; (2) the ability of the predecessor to provide relief; (3)
whether there has been a substantial continuity of business operations; (4)
whether the new employer uses the same plant; (5) whether it uses the same
or substantially the same work force; (6) whether it uses the same or substantially the same supervisory personnel; (7) whether the same jobs exist
under substantially the same working conditions; (8) whether it uses the
same machinery, equipment, and methods of production; and (9) whether it
produces the same products. Sugartree, supra, 9 FMSHRC at 397-398.
In the present case the administrative law judge evaluated the evidence,
applied this test, and concluded that Prestige should be held liable as a
successor to S&M. Specifically, the judge found:
In this case there is no dispute that Prestige continues
to produce the same product as S&M i.e., coal. It is
also apparent from the record that Tolbert Mullins as
president and part owner of both S&M and Prestige (and

1160

therefore as agent for both companies) was in a position
to have notice on behalf of Prestige of the charges by
the Complainant in this case. It is also established
that S&M is not able to provide adequate relief to the
Complainant in this case. It is no longer in business
and has no liquid assets. Moreover its only unpledged
assets consist of old mining equipment having but little
value as parts and scrap metal and having limited
marketability.
Of the eight employees presently working at Prestige
only two formerly worked for S&M. However one of the
two employees, Monroe Nichols, was a supervisor at S&M
and is a supervisor at Prestige. The Prestige mine is
a surface mine and S&M was an underground mine. Accordingly the machinery, equipment and methods of production
differ. The specific jobs at Prestige are also different
but many of the skills are transferable. Within this framework, I find on balance that indeed Prestige is a successorin-interest to S&M and accordingly is jointly and severally
liable for costs, damages, reinstatement and civil penalties.
9 FMSHRC at 406.
The grounds advanced by the majority for reversing the judge's findings
for the most part constitute nothing more than an unvarnished reweighing
of the evidence. Slip op. at 9-10. Perhaps if the Commission possessed
de novo fact finding authority, a finding of nonsuccessorship on these
factse"ould also be justified. In our review capacity, however, we are
bound by the narrow substantial evidence standard and the majority's substitution of its findings for those of the judge is erroneous. Donovan v.
Phelps Dodge Corp., supra, 709 F.2d at 92.
The majority also expresses concern that there was no direct business
transaction transferring the assets or operations of S&M to Prestige. Slip
op~ at 10.
The majority must be aware, however, that in Sugartree the Commission expressly rejected the need for a purchase of assets or stock in
successorship situations and that in affirming the Commission the Sixth
Circuit stated that "[i]n fact ••• the lack of a sale may actually indicate
that the predecessor and successor corporations are so closely linked that
arms length dealings as usually occur during a sale never occur nor are they
necessary." Terco, 839 F.2d at 239-240; Sugartree, 9 FMSHRC at 399. As
detailed below, the lack of any need for arms length dealings between S&M
and Prestige is apparent from the present record.
The record makes clear that Tolbert Mullins controls, in fact and in
practice, both S&M and Prestige. Mullins is president of both S&M and
Prestige. Vol. I Tr. 190, 196. He is the only director of Prestige.
Vol. I Tr. at 200. His wife, Shirley Mullins is secretary-treasurer of
both S&M and Prestige. Vol. I Tr. 196. They were the sole officers of
both companies. Vol. I Tr. 21, 22. Mullins owns 90 percent of the
stock of S&M. Vol. I Tr. 190. Shirley Mullins owns the remaining 10
percent. Vol. I Tr. 21. Under questioning, Tolbert Mullins' estimates of

1161

the amount of his stock ownership of Prestige progressively increased from
40 percent, to 45 percent, and appears to have settled at 50 percent.
Vol. I Tr. 197, 202. In addition, Shirley Mullins owns 10 percent of
Prestige. Vol. I Tr. 199, 206. Mullins' daughter did the payroll for
Prestige. Vol. I Tr. 205. At the hearing, when the administrative law
judge granted the Secretary's motion to join Prestige as a respondent and
suggested that a continuance might be in order, the Mullins, on behalf of
Prestige, authorized the hearing to proceed and authorized the attorney
representing S&M to also represent Prestige. Vol. I Tr. 23-24.
In Sugartree the Commission observed that "successorship transactions
may assume many fo.rms and liability may obtain in a number of business
contexts." 9 FMSHRC at 399. Given the degree of Mullins' control of both
S&M and Prestige, and the fact that both companies engage in coal mining
in very close proximity to each other, the present situation is a strikingly
appropriate context for a successorship finding. 3/ Although in most successorship situations a successor succeeds to a predecessor's operation at
the same locus, no different result need obtain here where the mine sites are
a mile and a half apart. Unlike a manufacturing plant which produces goods
or a business which provides services, a mine extracts minerals from an ore
body that is present at a specific location in a finite supply. Thus, as a
matter of course, mines are projected to open and close as the mining cycle
is completed and the ore body is exhausted.
As a consequence, the mere fact
that Prestige began mining operations at a mining.site located a mile and a
half from the site where the discriminatory act occurred should not bar a
successorship finding.
Courts have emphasized that the successorship test is not meant to be a
rigid formula resulting in a preordained result once information concerning
each of the variables is plugged in. Rather, the test is intended as an aid
for evaluating the facts and circumstances of each case and for balancing the
competing interests present in a variety of contexts. Different elements of
the test may be more important in different situations, but the primary concern always is to find a fair way for fulfilling a national policy. Successorship principles were developed to address issues arising under the National
Labor Relations Act such as whether a successor who was not involved in its
predecessor's unfair labor practice should nevertheless be required to provide
a remedy. See e.g., Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973).
There the Court balanced factors such as the federal policy of avoiding labor
strife, the prevention of the chilling of the exercise of protected rights,
and the protection of victimized employees against the costs sought to be
imposed on the successor. See also Howard Johnson Co. v. Hotel Employees,
417 U.S. 249 (1974); NLRB v. Burns International Security Services, 406 U.S.
272 (1972). When these basic concepts were later extended to other contexts,
3/
Contrary to the majority's suggestion, my recounting of the degree of
Mullins' control over both S&M and Prestige is not directed at the alter ego
theory of liability abandoned by the Secretary. See slip op. at 10. Rather,
my quite distinct purpose is to demonstrate that the part of the successorship balancing test that is directed at determining the fairness of the
obligation sought to be imposed on an "innocent" successor weighs heavily
against Mullins, who himself discriminated against Keene and, by virtue of
his control, is in a position to provide full relief through employmen~ at
Prestige.

11 r.. ?.

such as employment discrimination cases, the courts have built upon, extended
and modified these basic principles to adapt them to the particular circumstances and goals of other national policies. See e.g., Musikiwamba v. ESSI,
Inc.,. 760 F.2d 740, 750 (7th Cir. 1985) (Civil Rights Act of 1866, 42 U.S.C.
"'§1:'981); EEOC v. MacMillan Bloedel Containers, 503 F.2d 1086 (6th Cir. 1974)
(Title VII of Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq.). Thus, the
principle of successorship can and should be tailored as needed to advance the
goals of the Mine Act, particularly where, as here, an individual's use of
"hip-pocket" corporations, not an uncommon occurrence in the coal mining
industry, would otherwise allow effective evasion of the Mine Act's regulatory
and remedial requirements.
In the end our task in the successorship context is to review the facts
and to balance the national policy of protecting the health and safety of
miners, the individual interests of the injured miner, and the harm done to
and the costs imposed on the successor employer. Here, a blatant violation
of the anti-discrimination provision of the Mine Act occurred and no relief
is available through the responsible corporate entity. Full relief is
available, however, through a company controlled by the same individual,
engaged in the same business, in the same locale. Most importantly, Tolbert
Mullins comes before us, not as an innocent party, but as a person who himself
committed an act of illegal discrimination. In these circumstances, the
balancing process can only tilt in favor of a finding of successorship
liability.
Finally, assuming for the sake of argument that Prestige were found not
to be a successor, a more fundamental basis is available for ordering Prestige
to remedy the section 105(c) violation in this case. Section 105(c)(2) of the
Mine Act requires a violator of section 105(c) to "take such affirmative action
to abate the violation as the Commission deems appropriate, including, but not
limited to, the rehiring-or-r-einstatement of the miner to his former position
with back pay and interest." 30 U.S.C. 815(c)(2)(emphasis added). In explaining this broad grant of authority Congress stated:
It is the Committee's intention that the Secretary
propose, and that the Commission require, all relief
that is necessary to make the complaining party whole
and to remove the deleterious effects of the discriminatory conduct including, but not limited to reinstatement with full seniority rights, back-pay with
interest, and recompense for any special damages
sustained as a result of the discrimination. The
specified relief is only illustrative.
Legis. Hist, supra, at 625.
In exercising our authority to fashion appropriate relief, the Commission
has stated that "remedies in discrimination cases should be suited to the individual facts of each case and designed to eliminate the effects of illegal
discrimination." Munsey, supra, 2 FMSHRC at 3464. In ~runsey, the Commission
ordered the discriminatee, Glenn }funsey, to be reinstated at a mine different
from the mine at which he had been working when he was illegally discharged.
The Commission ordered reinstatement at the new mine not on the theory that
the mining company was a successor to Munsey's previous employer, but rather
because the new mine was owned and operated by an individual who, in his

1163

capacity as general manager at the former mining operation, had illegally
discriminated against Munsey. The Commission determined that reinstatement
of Munsey at a different mine was "an appropriate remedy [under section
105(c)] in order to fully compensate Munsey for the effects of the illegal
discrimination he suffered." 2 FMSHRC 3464. The same rationale for ordering
Prestige to provide remedial relief to Keene is available and appropriate here.
For these reasons, I dissent from the majo~ity's decision reversing
the judge's findings that Tolbert Mullins is liable for a separate act of
discrimination and that Prestige Coal Company is jointly and severally
liable for the damages and relief due Bobby G. Keene.

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Daniel R. Beiger, Esq.
E. Gay Leonard, Esq.
Copeland, Molinary & Beiger
P.O. Box 1296
Abingdon, VA 24210

1164

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

September 27, 1988
KAISER COAL CORPORATION

v.

Docket No. WEST 88-131-R

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

BEFORE:

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

DECISION

BY THE COMMISSION:
The controlling question presented in this matter is whether the
Commission has jurisdiction to entertain an application for declaratory
relief independent of any of the enforcement or contest proceedings or
other forms of action authorized under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1982) (the "Mine Act" or
"Act"). Conunission Administrative Law Judge Gary Melick concluded that
he had jurisdiction to consider Kaiser Coal Corporation's ("Kaiser")
application pursuant to section S(d) of the Administrative Procedure
Act, 5 U.S.C. § 551 et seq. (1982)("APA"), and section 113(d)(l) of the
Mine Act. l/ The judge denied Kaiser's application, however, on the

ll

Section S(d) of the APA states: "The agency, with like effect as
in the case of other orders, and in its sound discretion, may issue a
declaratory order to terminate a controversy or remove uncertainty."
5 U.S.C. § 554(e) (1982).
Section 113(d)(l) of the Mine Act states:
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

1165

grounds that the circumstances surrounding the application rendered an
award of declaratory relief inappropriate. 10 FMSHRC 578 (April 1988)
(ALJ). For the reasons that follow, we hold that the judge erred in
concluding·that he had jurisdiction to consider and rule upon the
application for declaratory relief.
Kaiser's application for declaratory relief arose in connection
with a dispute between the Department of Labor's Mine Safety and Health
Administration ("MSHA") and Kaiser regarding the application of 30
C.F.R. § 75.326, a mandatory underground coal mine safety standard, at
Kaiser's Sunnyside No. 1, No. 2 and No. 3 mines ("Sunnyside" or "the
mines") located in Carbon County, Utah. 1/ These underground coal mines
connection therewith, assigned to such administrative law judge by the chief administrative law
judge of the Commission or by the Commission, and
shall make a decision which constitutes his final
disposition of the proceedings. The decision of the
administrative law judge of the Commission shall
become the final decision of the Commission 40 days
after its issuance unless within such period the
Commission has directed that such decision shall be
reviewed by the Commission in accordance with
paragraph (2). An administrative law judge shall
not be assigned to prepare a recommended decision
under this [Act].
30 u.s.c. § 823(d)(l).
~/
Section 75.326 essentially restates section 303(y)(l) of the Mine
Act, 30 U.S.C. § 863(y)(l), and provides:

In any coal mine opened after March 30, 1970, the
entries used as intake and return air courses shall
be separated from belt haulage entries, and each
operator of such mine shall limit the velocity of
the air coursed through belt haulage entries to the
amount necessary to provide an adequate supply of
oxygen in such entries, and to insure that the air
therein shall contain less than 1.0 volume per
centum of methane, and such air shall not be used to
ventilate active working places. Whenever an
authorized representative of the Secretary finds, in
the case of any coal mine opened on or prior to
March 30, 1970, which has been developed with more
than two entries, that the conditions in the
entries, other than belt haulage entries, are such
as to permit adequately the coursing of intake or
return air through such entries, (a) the belt
haulage entries shall not be used to ventilate,
unless such entries are necessary to ventilate,
active working places, and (b) when the belt haulage
entries are not necessary to ventilate the active
working places, the operator of such mine shall

1166

were opened in 1896. Prior to 1960 they were developed with more than
t~o entries.
Kaiser asserts that in 1960, it began using a longwall
system o~ development and determined that only two gateroad entries
should be developed along the sides of each block of coal to be mined in
order to achieve more stable rib, roof, and floor conditions at the
mines. Under the two-entry longwall system, the belt haulage entry also
serves as either the intake or return air entry. Consequently, the belt
haulage entry is used to course intake or return air to and from the
active workings.
Until September 1985, MSHA approved and Kaiser adopted roof
control plans and ventilation system and methane and dust control plans
("ventilation plans") incorporating the two-entry longwall system of
development. J/ However, on September 11, 1985, MSHA advised Kaiser by
letter that it no longer approved the ventilation plan for the Sunnyside
mines. MSHA explained that it was "re-examining certain of its policies
and practices regarding operators' use of belt haulage entries as
ventilation entries, and particularly the application of section 75.326
to mines opened prior to March 30, 1970. 11 MSHA further stated:
[I]n the context of section 75.326, [Sunnyside] has
been developed with "more than two entries." Also,
the conditions in these entries, other than belt
haulage entries, are adequate to properly course the
mine's intake and return air •... In addition, MSHA
has determined that in all future mining areas
sufficient entries can be developed such as to
permit adequately the coursing of intake and return
air through such entries without utilization of the
belt entry.
K. Br. to ALJ, Attachment B at 2-3. MSHA's letter also stated that
Kaiser could no longer use the two-entry longwall system to implement
new development at Sunnyside unless the Secretary were to grant a
petition filed by Kaiser pursuant to section lOl(c) of the Mine Act
seeking modification of section 75.326 as applied to Sunnyside. ~/
limit the velocity of the air coursed through the
belt haulage entries to the amount necessary to
provide an adequate supply of oxygen in such
entries, and to insure that the air therein shall
contain less than 1.0 volume per centum of methane.
}/
Pursuant to 30 C.F.R. § 75.200 and 30 C.F.R. § 75.316, an operator
is required to adopt a roof control plan and a ventilation plan suitable
to the conditions and mining system of the mine. The plans must be
reviewed and approved by the Secretary at least every six months.
~/

Section lOl(c) of the Mine Act, 30 U.S.C. § 81l(c), provides that
the Secretary may modify the application of any mandatory safety
standard to a mine. Modification may be granted in those instances
where the Secretary determines either that an alternative means of
achieving the results of the standard exists that will at all times
guarantee no less than the same measure of protection afforded by the

1167

Thereafter, Kaiser filed with the Secretary a petition for
modification of section 75.326, but continued to use the two-entry
longwall system in developing the Sunnyside mines. On March 27, 1987,
an MSHA inspector issued to Kaiser an order of withdrawal pursuant to
section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l), alleging that
Kaiser's use of the two-entry longwall system (without an approved
modificatio~ of section 75.326) violated section 75.326.
Kaiser
contested the order and the case was assigned to Conunission
Administrative Law Judge Gary Melick. Kaiser Coal Corp., Docket No.
WEST 87-116-R.
Prior to a hearing on the merits in Docket No. WEST 87-116-R,
Kaiser and MSHA agreed to settle the case. MSHA consented to Kaiser's
completion of its current two-entry longwall development section and
agreed to vacate the section 104(d)(l) order of withdrawal, provided
Kaiser complied with certain conditions during that development. Kaiser
agreed to comply with MSHA's conditions and to withdraw its contest of
the order. The settlement agreement by its terms applied only to the
order of withdrawal at issue in that proceeding. On April 24, 1987,
Kaiser moved the judge to withdraw its contest of the order and to
dismiss the case, and on April 29, 1987, Judge Melick dismissed the
contest proceeding.
In the meantime, MSHA, on behalf of the Secretary, was processing
Kaiser's petition for modification. On October 27, 1987, the
Administrator of MSHA granted the petition subject to certain
conditions. Thereafter, the United Mine Workers of America ( 11 UMWA 11 )
filed a request for a hearing before a Department of Labor administrative law judge. The judge scheduled a hearing for June 1988, but,
upon the motion of the UMWA and without objection from Kaiser, the
modification proceeding has been continued indefinitely.
On February 25, 1988, Kaiser initiated this proceeding by filing
with the Conunission an application for declaratory relief. The matter
was assigned to Judge Melick. Following oral argument and briefs on the
the application, the judge denied Kaiser's request for declaratory
relief.
In his decision, the judge concluded that Conunission jurisdiction
to grant declaratory relief existed under 5 U.S.C. § 554(e) and that
standard, or that application of the standard will result in a
diminution of safety to the miners in the mine. The operator is
required to petition the Secretary for relief from the application of
the standard. The Secretary has adopted regulations governing the
processing of such petitions. 30 C.F.R. Part 44. Upon receipt of a
petition, MSHA gives notice, conducts an investigation and issues a
proposed decision granting or denying the relief sought. This proposed
decision is made by an Administrator of MSHA, which becomes the final
decision of the Secretary unless a request for a hearing is filed. If
requested, a hearing is held before an administrative law judge of the
Department of Labor. An appeal may be made to the Assistant Secretary
of Labor. Only a decision of the Assistant $ecretary is deemed final
agency action for purposes of judicial review.

1168

specific authority for these proceedings to be heard before a Commission
Administrative Law Judge is granted under section 113(d)(l) of the Mine
Act. 10 FMSHRC at 579. The judge noted, however, that 5 U.S.C.
§ 554(e) empowers an agency to "issue a declaratory order to terminate a
controversy or remove uncertainty," and reasoned that a declaratory
order should be denied when it will not accomplish these goals.
10 FMSHRC at 580. The judge concluded that even if he were to hold
section 75.326 inapplicable to Sunnyside, the controversy at issue would
not be terminated because Kaiser would still find it necessary to obtain
the Secretary's approval in its roof control and ventilation plans for
two-entry longwall mining development. Therefore, the judge found
declaratory relief was inappropriate, and he denied the application.
10 FMSHRC at 580-82.
We granted Kaiser's petition for discretionary review. We also
directed for review, sua sponte, the question of whether the judge had
jurisdiction to rule upon Kaiser's application. Because we conclude
that the judge did not have jurisdiction to hear and decide Kaiser's
application, we do not reach the question of whether declaratory relief
would have been appropriate.
We begin with the fundamental principle that, as an administrative
agency created by statute, we cannot exceed the jurisdictional authority
granted to us by Congress. See, e.g., Civil Aeronautics Board v. Delta
Airlines, 367 U.S. 316, 322 (1961); Lehigh & New England R.R. v. ICC,
540 F.2d 71, 78 (3rd Cir. 1976); National Petroleum Refiners Assoc. v.
FTC, 482 F.2d 672, 674 (D.C. Cir. 1973). The Commission is an
independent adjudicative agency created by section 113 of the Mine Act,
30 U.S.C. § 823, to provide trial-type proceedings and administrative
appellate review in cases arising under the Act. Several provisions of
the Mine Act grant subject matter jurisdiction to the Commission by
establishing specific enforcement and contest proceedings and other
forms of action over which the Commission judicially presides: ~,
section 105(d), 30 U.S.C. § 815(d), provides for the contest of
citations or orders, or the contest of civil penalties proposed for such
violations; section 105(b)(2), 30 U.S.C. § 815(b)(2), provides for
applications for temporary relief from orders issued pursuant to section
104; section 107(e), 30 U.S.C. § 817(e), provides for contests of
imminent danger orders of withdrawal; section lOS(c), 30 U.S.C.
§ 815(c), provides for complaints of discrimination; and section 111, 30
U.S.C. § 821, provides for complaints for compensation. Specific
provisions, such as these, delineate the scope of the Commission's
jurisdiction.
In contrast to the Act's provisions conferring jurisdiction,
section 113(d)(l) is procedural in nature. It creates no specific right
of action or proceeding over which the Commission may preside. Section
113 establishes the Commission and sets forth the procedures for
hearing, deciding, and reviewing matters arising under the Act.
Although section 113(d)(l) states that Commission administrative law
judges "appointed ... to hear matters under this Act shall hear, and
make a determination upon, any proceeding instituted before the
Commission," this language describes the scope of the judge's authority
to hear and decide matters in those proceedings otherwise properly filed

1169

pursuant to the Act. In short, section 113(d)(1) does not constitute an
independent grant of subject matter jurisdfotion. 'ii
Kaiser's argument that the language of section 113(d)(1) contains
a broad grant of jurisdiction giving Commission judges the authority to
decide "any proceeding" is rejected. This language must be read in the
proper statutory context discussed above, and is not an invitation from
Congress to legislate for ourselves virtually unlimited jurisdiction
over "any proceeding." Indeed, the Commission has consistently
refrained from inferring jurisdiction in the face of Congress' failure
to provide it. In refusing to hold that miners or their representatives
have authority under the Act to initiate review of citations through a
notice of contest where the Act does not specifically provide that
right, the Commission stated: "The statute contains no express
provision for the asserted right •.•• It is not the prerogative of this
Commission to confer [a] right in the absence of statutory provision."
United Mine Workers of America v. Secretary of Labor, 5 FMSHRC 807, 815
(May 1983), aff'd mem., 725 F.2d 126 (D.C. Cir. 1983)(table). See also,
United Mine Workers of America v. Secretary of Labor, 5 FMSHRC 1519,
1521 (September 1983) (rejecting contention that section 105(d) of the
Mine Act, 30 U.S.C. § 815(d), grants miners the right to contest
Secretary's vacation of order issued pursuant to section 104 of the Act,
30 U.S.C. § 814). This reasoning is equally applicable here.
Reliance upon 5 U.S.C. § 554(e) is also misplaced in the context
of this proceeding. The APA is not a jurisdictional statute and "does
not afford an implied grant of subject matter jurisdiction •... "
Califano v. Sanders, 430 U.S. 99, 107 (1977). See also American Air
Parcel Forwarding Co. v. United States, 718 F.2d 1546, 1552 (Fed. Cir.
1983), cert. den., 466 U.S. 937 (1984). Rather, agencies must look to
their enabling statutes for the boundaries of their jurisdiction. Thus,
while section 554(e) provides that an agency may issue a declaratory
order to terminate a controversy or remove uncertainty, this authority
is available only where jurisdiction is already conferred upon the
agency by its statute. Cf. Illinois Terminal R.R. v. ICC, 671 F.2d
1214, 1216 (8th Cir. 1982).
The Commission has previously recognized that it may grant
declaratory relief in appropriate proceedings where jurisdiction

'ii

The procedural nature of section 113(d)(1) is emphasized in the
legislative history. The provision is described in the Senate committee
report on the bill that largely became the Mine Act in a section of the
report entitled "Procedures." The joint explanatory statement of the
committee of conference summarized this section as requiring that
"Administrative Law Judges hear and decide any matter assigned and make
a decision which would constitute a final disposition of the
proceeding." Nothing in the legislative history indicates that Congress
viewed section 113(d)(1) as jurisdictional. S. Rep. No. 181, 95th
Cong., 1st Sess. 78 (1977) and S. Rep. No. 461, 95th Cong., 1st Sess. 60
(1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong. 2nd Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 636 and 1338 (1978).

1170

otherwise exists. Climax Molybdenum Co., 2 FMSHRC 2748, 2751-52
(Qctober 1980), aff'd sub nom. Climax Molybdenum Co. v. Secretary of
Labor, 703 F.2d 447, 452 (10th Cir. 1983); Youghiogheny & Ohio Coal Co.,
7 FMSHRC 200, 203 (February 1985)("Y&O"). Both Climax and Y&O were
enforcement proceedings properly brought before the Commission pursuant
to section 105(d) of the Act and therefore within Commission
jurisdiction. Further, authority to grant declaratory relief in a
section 105(d) enforcement proceeding is implicit in section 105(d),
which authorizes the Commission to affirm, modify, or vacate the
contested citation, order, or proposed penalty or direct "other
appropriate relief." See Climax, 2 FMSHRC at 2751 n.5. §_/
Here, Kaiser chose to settle and to withdraw the prior section
105(d) contest proceeding in which the applicability of 75.326 at
Sunnyside was at issue. Afterward, absent any extant enforcement action
by the Secretary, Kaiser filed the present independent application for
declaratory relief. Although the Commission had unquestioned
jurisdiction over the prior contest proceeding, it is without
jurisdiction over this application for declaratory relief.

§_/

Section 105(d) states in part:
If ... an operator pf a ... mine notifies the
Secretary that he intends to contest the issuance or
modification of an order issued under section [104]
of this [Act], or citation or notification of
proposed assessment of a penalty ... , the Secretary
shall immediately advise the Commission of such
notification, and the Commission shall afford an
opportunity for a hearing (in accordance with [5
U.S.C. § 554] ... ), and thereafter shall issue an
order, based on findings of fact, affirming,
modifying, or vacating the Secretary's citation,
order, or proposed penalty, or directing other
appropriate relief . . . .

30 U.S.C. § 815(d)(emphasis added).
In affirming the Commission in Climax, the Tenth Circuit also
emphasized that declaratory relief is part of the "other appropriate
relief" the Commission may afford when a case properly arises under
section 105(d) of the Act. Climax, supra, 703 F.2d at 452 n.4.

1171

Accordingly, the judge's decision is reversed to the extent he
concluded that he had jurisdiction to hear and decide Kaiser's
application for declaratory relief. The judge's denial of the
application for declaratory relief is affirmed on the ground that the
Conunission lacks jurisdiction in this proceeding.·

tZ~d~,,
er

Joyce A. Doyle, Commi:ST

~~~
L. Clair Nelson, ~

Distribution
John A. Macleod, Esq.
Susan E. Chetlin, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Mary Lu Jordan, Esq.
United Mine Workers of America
900 15th Street, N.W.
Washington, D.C.
20005
Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA
22203

1172

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

September 29, 1988
WILFRED BRYANT
Docket No. WEVA 85-43-D

v.
DINGESS MINE SERVICE,
WINCHESTER COALS, INC.,
MULLINS COAL COMPANY,
JOE DINGESS and JOHNNY DINGESS

BEFORE:

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

BY:

Ford, Backley, Lastowka and Nelson

This proceeding involves a discrimination complaint brought by
Wilfred Bryant against Dingess Mine Service ("Dingess"), Mullins Coal
Co. ("Mullins"), Winchester Coals, Inc. ("Winchester"), Joe Dingess, and
Johnny Dingess pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act"). Following a hearing
on the merits, Commission Administrative Law Judge James A. Broderick
concluded that Dingess had discriminated against Bryant in violation of
section lOS(c)(l) of the Mine Act by discharging him for engaging in a
protected work refusal, 30 U.S.C. § 815(c)(l) l/; that Mullins and

lf

Section lOS(c)(l) provides in pertinent part:

Discrimination or interference prohibited; complaint; investigation;
determination; hearing
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
[ActJ 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

1173

Winchester were not liable under section lOS(c)(l) for Dingess•
discriminatory action; and that the adverse activity complained of was
terminated when Bryant refused an offer of reemployment and resigned
from his job. 9 FMSHRC 336 (February 1987)(ALJ). After the judge
issued a supplemental decision granting Bryant back pay with interest
and attorneys' fees (9 FMSHRC 940 (May 1987)(ALJ)), we granted Bryant's
petition for discretionary review and heard oral argument. Bryant
asserts on review that the judge erred: (1) in finding that Mullins and
Winchester are not liable for Dingess 1 discrimin-atory act, and ( 2) in
finding that Dingess' adverse action was terminated as a result of
Bryant's refusal of reemployment and resignation. For the reasons that
follow, we agree that the judge erred in not holding Mullins and
Winchester liable under section lOS(c)(l) for Dingess• discriminatory
act, but we conclude that substantial evidence supports the judge's
finding regarding the termination of the adverse action. Accordingly,
we reverse in part and affirm in part.
I.

This case arises out of events occurring at an underground coal
mine located in Logan County, West Virginia. On July 20, 1982, Mullins,
the lessee of the coal at the mine, entered into a renewable one-year
contract with Dingess Mine Service, a company solely owned by Joe
Dingess and Johnny Dingess ("Dingess brothers"), whereby Dingess agreed
to mine coal and deliver it to Mullins for a specified sum per ton.
Prior to this agreement, Dingess had not operated an underground coal
mine. Mullins' decision to contract with the Dingess brothers was
influenced by their satisfactory performance of electrical work in 198182 pursuant to a contract with Mullins' sister corporation, Winchester.
'];./ (While doing work for Winchester, the Dingess brothers had operated
under the name of Dingess Line Service.)
The contract to operate the mine provided that Dingess would be
responsible for the hiring, employment, and working conditions of its
employees and that the work force would be under the jurisdiction of the
United Mine Workers of America ( 11 UMWA11 ) and governed by the current UMWA
wage agreement (the "Wage Agreement"). The contract further provided
that Dingess would "keep and maintain all mining equipment in good
working order, condition and repair •.•. " R. Ex. 5 at 2. Dingess also
agreed to comply with all applicable federal, state, and local laws and
regulations. For its part, Mullins reserved the right to enter and
inspect the mine for the "purpose of assuring Owner that Contractor is
performing all of its covenants and agreements hereunder." R. Ex. 5
at 12. Mullins also retained the right to approve mining plans
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 ..••
30 U.S.C. § 815(c)(l).
'];./
Both Mullins and Winchester are wholly-owned subsidiaries of
Imperial Pacific Investments. Donald Cooper, the president of both
Mullins and Winchester, is Mullins' only employee.

1174

developed by Dingess.
Concurrently with its contract with Mullins to operate the mine,
Dingess entered into an agreement with Winchester by which Dingess
leased the mining equipment and machinery necessary to operate the mine.
Dingess also agreed "to keep all of the [equipment] in good order and
repair." R. Ex. 6 at 2.
In the latter part of 1983 and early 1984, management for Mullins
and Winchester became aware that Joe Dingess was drinking liquor at the
mine and that Dingess was not making payments as required under the
contract, including UMWA royalties, federal and state taxes, and
worker's compensation fund payments. Tr. 96, 205-'06. Following the
issuance of a number of citations by West Virginia's Department of
Natural Resources for Dingess' failure to comply with surface drainage
requirements at the mine, it was necessary for Mullins to take direct
action to correct surface drainage problems in order to protect its
mining permit. Tr. 206-07.
Commensurate with its operational problems with Dingess, Mullins
deducted rental payments due Winchester under the equipment lease from
amounts which Mullins owed Dingess under the mining contract. In
addition, money was advanced to Dingess against coal produced by Dingess
but not yet delivered to Mullins, and Winchester made payments on
Dingess' behalf to cover debt obligations to third parties, such as
suppliers, trucking companies, and repair companies. Further, Mullins
worked with Dingess in other ways in order to help Dingess meet its
production requirements. Specifically, in the sUllllller of 1984, Mullins
suggested that Dingess develop a second mining section at the mine and
Winchester assisted Dingess in its development. Winchester also leased
additional equipment to Dingess to mine the new section. Tr. 210-12.
The individual chiefly responsible for monitoring Dingess•
performance under its contract with Mullins was Winchester's mine
manager, Roger Cook. Tr. 86-88. Cook testified that he inspected the
mine by going underground two or three times each week in order to
ensure that mining plans were being followed and to check on production.
Tr. 97a. On occasion he also took responsibility for dust control and
correcting surface drainage problems. Tr. 97b-97c, 117. In conjunction
with an employee of Winchester, Cook developed the plans for opening the
second section at the mine and saw to it that the plans were carried
out. Tr. 99. Cook also testified that no one at Dingess consulted with
him about the hiring or laying-off of employees, nor did any of Dingess•
employees complain to him about any of the equipment being unsafe. Tr.
109-10.
On October 22, 1984, Mullins terminated its mining contract with
Dingess on various grounds, including the failure of Dingess to pay its
employees and to comply with the Mine Act and its regulations.
R. Ex. 7. Also, Winchester's equipment lease with Dingess was
terminated in February 1985, for the latter's failure to make the
required minimum payments. Id.
Some six months prior to the termination of the contract between

1175

Mullins and Dingess, on April 23, 1984, the complainant, Wilfred Bryant,
had been hired by the mine foreman, Aaron Browning, to work as a shuttle
car driver on the second shift. Bryant testified that the shuttle car
that he was assigned to operate was hard to steer and was covered with
mud and debris. In addition, it had defective brakes on one side, no
lights, and a defective tram mechanism. When Bryant pointed out these
mechanical problems to Browning and Kevin Atkins, the section foreman,
Bryant was told to do the best he could with the car. Tr. 27.
Bryant testified that by his third day at the mine, his arms were
so stiff from steering the shuttle car that he refused to operate it
further. The next day, after informing Atkins that he would not operate
the shuttle car, Browning assigned him to other work. On the following
day, Friday, April 27, 1984, Browning called Bryant at home and told him
that the entire second shift was being laid o·ff due to flooding in the
mine. Bryant went to the mine to obtain a lay-off slip, only to learn
that the mine was not flooded and that miners with less seniority were
in fact working at the mine. Browning refused to issue a lay-off slip
and told Bryant that he no longer had a job. Tr. 25-26, 32-34.
Bryant responded to the discharge by filing a grievance with the
local UMWA office. The grievance did not allege a safety violation by
the operator, but focused on Bryant's lay-off and Browning's continued
employment of men less senior to Bryant. Following the union representatives' negotiations on Bryant's behalf, Browning agreed to put
Bryant on a panel for recall. J/ Bryant refused the proposed settlement
because he did not believe Browning and because Browning did not agree
to fix the shuttle car. Tr. 51, 67, 308-09. Stanley Wells, the mine's
safety connnitteeman and one of those representing Bryant, was present
during the negotiations. Wells, in his testimony, confirmed that
Browning offered to put Bryant on a panel. He testified that a union
representative subsequently discussed the offer with Bryant and
encouraged Bryant to accept it. He stated that Bryant did not agree
because "he felt he was done wrong." Tr. 165.
Mine Foreman Browning testified that he was never employed by
Mullins or Winchester and that he received all his instructions for
directing the operation of the mine from the Dingess brothers. Tr. 27071, 274. At the time he hired Bryant as a shuttle car driver on the
second shift, he did not confer with anyone at Mullins or Winchester.
Tr. 275. Browning stated that he decided to lay off Bryant because of a
oral safety complaint from the loading machine operator about Bryant's
operation of the shuttle car. Browning did not consult with anyone at
Mullins or Winchester about his decision. Tr. 291, 294-95. Browning
testified that he intended to call Bryant back after a couple of days,
but not as a shuttle car driver. Tr. 278-79.

On May 1, 1984, Bryant filed a discrimination complaint with the

11

A recall panel is a procedure under the Wage Agreement whereby the
name of a miner who has been laid off is placed on a list by the
operator for recall to work as positions become available. Miners are
listed in order of seniority. See Tr. 52-54, 164, 308-09.

1176

Department of Labor's Mine Safety and Health Administration ("MSHA").
On May 9, 1984, following negotiations regarding his grievance and
rejection of Browning's offer, Bryant formally terminated his employment
with Dingess. After investigating the complaint, MSHA determined that a
violation of the Mine Act had not occurred and declined to file a
complaint on Bryant's behalf. 30 U.S.C. § 815{c)(2) & (3). Bryant then
filed a complaint on his own behalf before this independent Conunission
pursuant to section 105(c)(3) of the Act. 30 U.S.C. § 81S(c){3).
According to the judge, a default judgment was entered against Dingess
and the Dingess brothers for failure to show cause why an appearance had
not been entered or an answer filed. The judgment was not conclusive on
the issue of discrimination as against Mullins, Winchester, or any
successor employer.
Following a two-day evidentiary hearing, the judge issued his
decision concluding that Bryant had engaged in a protected activity when
he refused to operate the shuttle car and that his reason for refusing
was conununicated to the operator. 9 FMSHRC at 342. The judge found
that Bryant "was 'laid off' on April 27, 1984, following his refusal,"
and he characterized this lay-off as an adverse action. Id. However,
because Bryant refused the of fer by the mine superintendent to be put on
a recall panel, the judge concluded "that he was not discharged and that
the adverse action terminated when he refused the off er to be called
back and resigned his job." Id.
The judge characterized Dingess as the "production-operator under
a contract with the owner of the coal." 9 FMSHRC at 344. He found that
Mullins and Winchester had a "continuing presence" at the mine and knew
or should have known of Dingess' increasing incompetence to operate the
mine at the time of Bryant's employment. 9 FMSHRC at 343. He inferred
from Roger Cook's regular presence at the mine that Mullins and
Winchester were aware of the shuttle car's defective condition. The
judge also found that Mullins and Winchester were "involved in
overseeing Dingess' work ••. [and) actually performed some of the work
involved in the production of coal (engineering projections,
installation of overcasts)." 9 FMSHRC at 344. However, because Mullins
and Winchester were not involved in hiring Bryant, did not direct his
work activity, and were not involved in the decision to fire him, the
judge concluded that Mullins and Winchester were not liable for
discrimination under section lOS(c)(l) of the Mine Act. 9 FMSHRC at
343-44.
The judge dismissed Bryant's complaint with respect to Mullins and
Winchester, but ordered Dingess to pay Bryant back pay with interest
from April 27, 1984 (the date of the lay-off) to May 9, 1984 (the date
of Bryant's resignation) with interest thereon and to reimburse him for
attorney's fees and costs. ~/ 9 FMSHRC 940, 942-43 (May 1987)(ALJ).
~/

During the course of the hearing, Bryant moved the judge to add
New River Fuels to the complaint as a successor-in-interest to Dingess.
(The license to operate the mine had been transferred to New River Fuels
after it was recovered from Dingess. See 9 FMSHRC at 339.) Because the
judge concluded that the adverse action complained of terminated on

1177

II.

On review Bryant first argues that the judge erroneously concluded
that Winchester and Mullins were not liable for his wrongful discharge.
Bryant relies on theories of strict liability and agency to assert error
because, as the judge concluded, Mullins and Winchester were "interchangeable" (9 FMSHRC at 339) and had a "continuing presence at the
mine." Id. at 343. Bryant asserts that by permitting Dingess to
operate the mine after becoming aware of its incompetence, Mullins and
Winchester contributed to the unlawful discrimination.
In determining that Mullins and Winchester should not be held
liable under section 105(c)(l) of the Mine Act, the judge viewed Dingess
as an independent contractor and concluded that Mullins and Winchester
as the mine owners were not liable without regard to fault for Dingess'
discriminatory act. We find, however, that given the facts of this
case, Dingess actually functioned as a manager and supervisor on behalf
of the operators, Mullins and Winchester, rather than as an independent
contractor responsible for the operation of the mine. We conclude that
Dingess was acting as a supervisory agent in a working environment where
the operation of the mine was effectively controlled and directed by
Mullins and Winchester and, consequently, that Mullins and Winchester
are liable for Dingess' discriminatory act. 21
Our disposition turns upon an examination of the true nature of
the relationship existing between the parties. Although the contract
between Mullins and Winchester designated Dingess as an "independent
contractor," it is the conduct of the parties and not the terminology of
the contract which determines the nature of the relationship. See,
~· Board of Trade of Chicago v. Hammond Elevator Co., 198 U.S. 424
(1904); Burris v. Texaco, Inc., 361 F.2d 169 (4th Cir. 1966). Due to
Mullins' and Winchester's substantial control over the most significant
aspects of the operation of the mine, the relationship between the
parties in this instance was that of principal and agent similar to the
typical arrangement where a mine operator employs supervisory personnel
to assist in the operation of a mine. See 30 U.S.C. § 802(e)(defining
"agent" as "any person charged with the~sponsibility for the operation
of all or part of a coal or other mine or the supervision of the
•
II) .
miners...
Bryant's resignation and before the license was recovered from Dingess,
the judge denied the motion. 9 FMSHRC at 344. On appeal, Bryant
requested permission to put on evidence concerning the successor
liability of New River Fuels in the event the Commission determined that
his backpay should not have terminated at the time he rejected the offer
to be placed on the recall panel. In light of our decision affirming
the judge's disposition of the backpay issue, the question of New
River's successorship liability need not be pursued.
~/

In light of our agreement with Bryant's theory of liability based
on agency principles, we do not reach his alternative argument based on
strict liability in the context of section 105(c).

1178

Although the judge did not expressly find that Dingess was acting
as a~ agent,_ the factual findings that he did make lead inevitably to
this conclusion. Although in its contract with Mullins, Dingess was
charged with being wholly responsible for the work force and the
operation of the mine, in fact, neither Joe Dingess nor Johnny Dingess
had ever operated an underground mine. 9 FMSHRC at 337. Thus, Mullins
should have been aware at the outset that Dingess did not have the
technical expertise that must be expected of an independent contractor
operating a mine. Other findings relate to Mullins' and Winchester's
close supervision of the manner in which mining was carried out. The
contract provided that Mullins would retain the right to approve mining
plans as developed by Dingess and, as the judge found, Mullins
participated in the actual development of plans by hiring an engineering
firm to prepare maps and to perform ventilation calculations. 9 FMSHRC
at 338. Roger Cook, Winchester's mine manager, testified without
dispute that he and Winchester's mine foreman were instrumental in
having Dingess develop a second mining section at the mine. Tr. 99.
This testimony is consistent with the judge's finding that Mullins and
Winchester were involved not only in overseeing Dingess' work, but also
in actually performing some of the work involved in the production of
coal. 9 FMSHRC at 344.
Further, as the judge stated, Mullins and Winchester had a
"continuing presence at the mine." 9 FMSHRC at 343. Cook inspected the
mine on a regular basis by going underground two or three times a week.
During the course of these inspections, Cook's primary duty was to
ensure that Dingess complied with the means and methods of production
generally set forth in the mining plans prepared at Mullins' and
Winchester's behest. Cook described this duty as "[m]aking sure
[Dingess] was following our procedures we set up on retreat mining, or
projections that we set forth for them, to make sure that they wouldn't
destroy the reserves." Tr. 97. In this regard, he inspected the
ventilation and the roof, had problems corrected, and was involved with
-surface drainage and underground dust control. Tr. 97a-97b. He also
stated that he had to "get on" the Dingess brothers to correct problems
with su=face dust control. Tr. 97b. When Dingess did not correct such
a problem, Cook sent Winchester's employees to correct it. Tr. 97b,
117. On several occasions, Cook instructed Dingess on how to comply
with s~ate environmental requirements. Tr. 118. Since he was concerned
with the amount of coal produced, he reminded Dingess every few days to
increase production.
The judge also detailed Mullins' and Winchester's handling of
numerous financial transactions involving Dingess' debt payments
including payments on Dingess' behalf to suppliers, trucking companies,
and repair companies, and cash advances by Mullins and Winchester· to
Dingess. 9 FMSHRC at 338.
Considered together, these findings establish that Mullins and
Winchester were in actual control of the mine at which Bryant worked.

£/

Although the evidence indicates that Dingess exercised control
over the hiring, discharging, and laying off of employees at the mine,

1179

~/

As a result, this case is not unlike the more typical situation where a
mine foreman or supervisor is endowed with a certain degree of
responsibility in the operation of a mine, but whose sphere of control
is always subject to the operator's ultimate right to direct the
supervisor's work performance in order to ensure compliance with the
requirements of the Mine Act. Within this latter framework, it has been
consistently held that mine operators are liable for the discriminatory
acts of their agents under section 105(c)(1) of the Act. See, ~·
Secretary of Labor v. Metric Constructors, Inc., 6 FMSHRC 226 (February
1984), aff'd sub nom. Brock v. Metric Constructors, Inc., 776 F.2d 469
(11th Cir. 1985) (mine construction subcontractor held liable for
superintendent's illegal discharge of employees following their
protected work refusal); Moses v. Whitley Development Corp., 4 FMSHRC
1475 (1982) aff'd sub !!2!!!· Whitley Development Corp. v. FMSHRC, 770 F.2d
168 (6th Cir. 1985)(operator held liable for foreman's illegal discharge
of miner); Secretary on behalf of Robinette v. United Castle Coal Co.,
3 FMSHRC 803 (April 1981) (operator held liable for mine
superintendent's illegal discharge of miners engaged in protected work
refusal).
Under these circumstances, we hold that the record establishes
that Dingess' status as an independent contractor was in name only and
that in fact the nature of its relationship with Mullins and Winchester
was akin to its being an on-site, supervisory agent for Mullins and
Winchester. Therefore, Mullins and Winchester, as operators of the mine
at issue, are liable under section 105(c)(1) of the Mine Act for
Dingess' discriminatory acts.
III.

The final issue is whether the judge erred in concluding that
Bryant's refusal to be placed on the recall panel and his subsequent
resignation tolled Bryant's right to back pay. The judge found that
following Bryant's discriminatory lay-off on April 27, 1984, Aaron
Browning offered to place Bryant on a panel for recall to work "in a
couple of days at most" (Tr. 278), and that on May 9, 1984, Bryant
refused Browning's offer by resigning. 9 FMSHRC at 342. The judge
concluded that "the adverse action terminated when [Bryant] refused the
offer to be called back" and, therefore, that Bryant was only entitled
to back pay with interest for the period of April 27 to May 9. 9 FMSHRC
at 342, 344. Bryant argues that Browning's offer of reemployment was
insufficient to cut off Mullins' and Winchester's liability for back pay
and interest.
Generally, when a discriminatee is unconditionally and in a bona
fide fashion offered reinstatement, the running of back pay is tolled.
B. Schiel and P. Grossman, Employment Discrimination Law, at 1432 2d ed.
(1983); at 279-80 (2d ed. 1983-84 Supp. 1985); ~Munsey v. Smitty
Baker Coal Company, Inc., 2 FMSHRC 3463, 3464 (December 1984)(suitable
job offer tolls back pay due discriminatee). The Supreme Court has
such control of personnel decisions is not inconsistent with Dingess' .
status as an agent, but rather describes the degree of authority granted
to Dingess in this particular area of responsibility.

1180

emphasized that only in "exceptional" circumstances will a
discr.iminatee's rejection of an unqualified job offer not end the back
pay period. Ford Motor Co. v. EEOC, 458 U.S. 219, 238-39 n.27 (1982).
In light of these principles, we hold that the judge did not err in
determining the period for which Bryant is entitled to back pay and
interest.
The undisputed testimony of Browning and of Stanley Wells, the
union's safety connnitteeman and Bryant's representative in negotiations
with Browning, is that the offer to place Bryant on the recall panel was
made without restrictions. Thus, the question is whether the offer was
in fact a bona fide offer of reemployment. The contract between Dingess
and Mullins specified that the procedure for returning laid off miners
to work was through the recall panel process. The bargaining between
Browning and Bryant, during which Browning offered to place Bryant on
the recall panel, was part of Bryant's contractual grievance
negotiations, but Bryant's discrimination complaint and Bryant's
grievance arose out of the same circumstances.
Browning testified that once Bryant was on the panel, Browning
intended to recall Bryant to work as a helper or a laborer. Bryant does
not argue that these jobs were not comparable with his former position
as a shuttle car driver. Rather, he argues that Browning's job offer
was nothing more than an empty promise. Bryant relies on the fact that
when the offer was made, a recall panel did not exist and, in fact,
never had been used at the mine. However, the record contains no
evidence of events that would have given rise to the creation of a panel
prior to this time. Further, the testimony of Wells establishes that
Bryant had assurances that the panel procedure would be instituted and
that he would be recalled to a job within a matter of days. Wells
stated that Browning told him and the union representative that Bryant
would be given a "place on the panel" and that Browning "guaranteed ...
that he would have Bryant back to work within two or three days." Tr.
165, 167. When asked if he had connnunicated these assurances to Bryant,
Wells replied that he had. Id. ZI
The judge credited Wells' testimony that Browning had "guaranteed"
that Bryant would be called back to work within two or three days and
that Bryant knew this when he refused the offer. 9 FMSHRC at 340.
Credibility is an issue for the judge to decide. As the Connnission
often has stated, a judge's credibility resolutions cannot be overturned
lightly(~, Hall v. Clinchfield Coal Co., 8 FMSHRC 1624, 1629
(November 1986)) and we discern nothing in the present record that would
justify us taking this extraordinary step. Therefore, we conclude that
substantial evidence supports the judge's finding that Browning agreed
to place Bryant on a recall panel and that Browning guaranteed that
.Bryant would be called back to work within two or three days. Given

ZI

While Bryant testified that nothing was communicated to him about
a job offer, he admitted that he knew that the union had agreed on his
behalf to settle the grievance by having him placed on a recall panel
and that he knew at the time of his resignation that Browning had
offered to put him on a recall panel. Tr. 308, 311.

1181

these findings, we hold that Browning's offer; which Bryant refused, was
more than a "mere promise" of a job.
The judge did not explicitly find that Bryant's rejection of
Browning's offer was unreasonable, but his conclusion that Bryant's
refusal of the of fer and his resignation terminated the back pay period
implies that it was. The fact that a recall panel had not been
previously implemented does not mean that one would not be instituted in
an effort to resolve the present dispute. Indeed, Bryant's representatives who had negotiated directly with Browning believed that
Browning intended to do as he promised and the record supports the
judge's finding that this belief was conveyed to Bryant. We especially
note that at the time he rejected the offer and resigned Bryant had
little to lose by accepting the offer. Had Bryant agreed he would have
been put on a recall panel, with Browning's guarantee that he would have
been reemployed. Thereafter, if Browning had failed to recall Bryant to
work, Bryant would have had a clear basis for further relief. ~/

IV.
Accordingly, we hold that Mullins and Winchester are liable under
section lOS(c)(l) of the Mine Act for the discriminatory act of their
agent, Dingess. Furthermore, we hold that Bryant's refusal to accept
the off er to be placed on the recall panel and his subsequent
resignation terminated his right to back pay beyond May 9, 1984.
Therefore, the decision of the judge is reversed in part and affirmed in
part. The judge, however, reduced the amount of attorneys' fees awarded
to Bryant's attorneys by one-third, concluding in part that they had
spent a large portion of their time attempting to establish the
liability of Mullins and Winchester, a theory which he had rejected.
9 FMSHRC at 942. The judge also noted that the damages recovered were
limited to nine days backpay without reinstatement. The judge did not
specify to what extent these two separate considerations individually
contributed to his one-third reduction in the attorneys' fees awarded.
In view of our reversal of the judge on the issue of the liability of
Mullins and Winchester, and our affirmance on the issue of backpay, we
therefore find it necessary to remand this proceeding to the judge for a
redetermination of the attorneys' fees award.

~/
Bryant alleges that during the discussions with Browning no
mention was made regarding the correction of safety hazards on the
shuttle car. Tr. 309. Bryant argues that accepting the job offer
without an agreement to correct the safety hazards of which he
complained would allow Dingess to avoid compliance with mine safety
standards. PDR 26. This argument misses the mark. Bryant was not to
be recalled as a shuttle car operator. Also, should Bryant have
returned to work and have found working conditions that he, in good
faith, believed to be hazardous, he had the right, to request an
inspection by MSHA or to engage in another protected work refusal. 30
u.s.c. § 813(g).

1182

. Accordingly, the judge's decision is affirmed in part, reversed in
part and remanded for further proceedings consistent with this decision.

~~· Commissioner

~7lt£~

L. Clair Nelson, Commissioner

1183

Doyle, Commissioner, concurring in part and dissenting in part:
I concur with the majority that substantial evidence supports the
judge's decision that the adverse action against Bryant terminated when
Bryant refused reemployment and resigned. I respectfully dissent,
however, from the majority's legal determination that Mullins and
Winchester exerted substantial control over the most significant
aspects of the mine's operation and that, thus, Dingess was their
agent. Based on this determination, the majority found that Mullins
and Winchester were liable for Dingess' discriminatory action against
Bryant. I disagree.
While acknowledging that the judge did not find that Dingess was
an agent, the majority bases its decision that Dingess was not an
independent contractor on four specific fact determinations made by the
administrative law judge, which, they believe, lead to the conclusion
that Dingess was, in fact, an agent.
The first fact on which the majority relies is that Dingess never
previously operated an underground mine. While there is no dispute that
the Dingess brothers had not themselves previously operated a mine,
Mullins had "direct knowledge of the work history of Joe and Johnny
Dingess in deep mine operations, to the extent that [they] felt comfortable that they were familiar with coal mining operations." Tr. 197.
See also Tr. 93-94. Mullins' decision to hire Dingess was also based on
its eight months experience with the Dingess brothers during which they
served as an electrical contractor for Mullins/Winchester. They were
found to be hard working, diligent, straightforward, knowledgeable and
reputable and they had delivered quality work, on schedule, within
budget. Tr. 199. Whether it was reasonable or unreasonable, wise or
unwise, for Mullins to hire Dingess as an underground mining contractor
is a question of fact and could turn on other factors, such as the
technical expertise of those Dingess planned to hire, of which we have
no evidence of record. But whatever those factors might show, they have
no bearing on the issue of control, which the majority observes is determinative in deciding whether Dingess was an independent contractor or the
agent of Mullins.
The second factor on which the majority relies is what they characterize as "close supervision" of the manner in which mining was carried
out. Mullins retained the right to approve Dingess' mining plans and
the judge found that Mullins hired an engineering firm to prepare mine
maps and to perform some ventilation calculations, and were instrumental
in having Dingess develop a second section. I do not find any of these
actions to be indicative of the type of control that differentiates an
independent contractor from an agent. Retaining the right to approve
mining plans is standard in the coal mining industry, required by
owners, lessors and production operators alike in order to assure that
the reserves are not robbed by an operator seeking to mine what can be

1184

obtained quickly and cheaply and leaving what is difficult and expensive.
·Neither the preparation of maps to reflect the mine plans nor the performance of ventilation calculations reflect control or anything more
than assistance in performing specific tasks required to fulfill an
operator's obligations under the Mine Act. In addition, it is
unrealistic to think that, whatever the relationship between production
operator and contract miner, a second section would be developed without
consultation and negotiation between them, if only to assure that the
additional coal could be processed and sold.
The third finding of fact on which the majority relies in concluding tha·t an agency relationship exists, is that Mullins and Winchester had a "continuing presence at the mine." There is no dispute
that Cook inspected the mine frequently to insure compliance with
mine plans, to inspect roof and dust control and to monitor surface
drainage. Tr. 97a-97b. He had to "get on" Dingess about surface dust
control and he instructed them on compliance with state environmental
requirements. Tr. 97b. In essence, Cook tried to assure that Dingess
obeyed federal and state laws and regulations.
As the U.S. Court of Appeals for the D.C. Circuit noted in Local
777, Democratic Union Organizing Comm. v. NLRB, 603 F.2d 862, 87~
"Government regulations constitute supervision not by the employer but
by the state." The court went on to state:
Thus, to the extent that the government
regulation of a particular occupation
is more extensive, the control by a
putative employer becomes less extensive
because the employer cannot evade the.law
either and in requiring compliance with the
law he is not controlling the [independent
contractor]. It is the law that controls
the [independent contractor]. Thus requiring [independent contractors] to obey
the law is no more control by the lessor
than would be a routine insistence upon
the lawfulness of the conduct of those
persons with whom one does business.
603 F.2d 875. The court found this to be a far cry from the restrictions
alluded to in the Restatement (Second) of Agency, §220, in which a
person's physical activities and his time are surrendered to the control
of a master. I find the behavior here of Cook in a.t tempting to assure
Dingess' compliance with laws, regulations and permit restrictions, even
if done only to protect Mullins/Winchester from citations, penalties and
permit revocations on account of Dingess' behavior, to be simply that,
and not evidence that Mullins/Winchester were exerting substantial
control over Dingess. See also Moushey v. United States Steel
Corporation, 374 F.2d 561, 568 (3rd Cir. 1967).

1185

The last fact on which the majority relies is Mullins' and
Winchester's handling of numerous financial transactions on behalf of
Dingess regarding its debt payments and their making cash advances to
Dingess. While I do not see that cash advances bear at all on the
issue of control, the other transactions may, in fact, indicate an
element of control, depending to some extent on whether Dingess
authorized the procedure, agreed to it, or merely acquiesced in it,
which the record does not make clear. They should be weighed along with
any other record evidence of those factors that actually reflect on an
agency versus independent contractor relationship.
Although "[a]ll of the circumstances" are to be examined in determining whether one is an employee or an independent contractor, FritoLay, Inc. v. NLRB, 385 F.2d 180, 187 (7th Cir. 1967); NLRB v. A.S.
Abell Co., 327 F.2d 1, 4 (4th Cir. 1964), the most important element
is the extent of the actual supervision exercised by the putative
employer over the "means and manner" of the worker's performance.
Lodge 1858 v. Webb U.S. D.C., 188 U.S. App. D.C. 233, 241-245, 580
F. 2d at 504-508 ( 197 8) ; Independent Owner-s-Opera tors, Inc. v. NLRB,
407 F.2d 1383, 1385 (9th Cir. 1969). While the majority concludes
that "Dingess was acting as a supervisory agent in a working environment
where the operation of the mine was effectively controlled and directed
by Mullins and Winchester" (Slip op. at 6), the record reflects otherwise.
Complainant's own witness, Stanley Wells, testified that Roger Cook never
told him to do anything in the mine, that he wouldn't have done it anyway,
and that he (Cook) "didn't have nothing to do with the mines." Tr. 151,
152. He testified further that he never observed Cook directing any of
the other miners. Tr. 152. Donnie Adams never saw Roger Cook or any
other Winchester employee at the mines. Tr. 133. Browning hired Bryant
without checking with anyone else. Tr. 46-47. He told him to shoot coal
rather than run the shuttle car when Bryant complained about its condition.
Tr. 25. He settled Bryant's union grievance, Tr. 36. Reed Peyton was
hired by Joe Dingess and told to report to Browning. Tr. 81. Donnie
Adams was hired by Aaron Browning, and considered him to be the boss.
Tr. 126, 130. In addition, the judge specifically found that no miner
complained to Cook about unsafe equipment and that Dingess, and not
Mullins/Winchester, hired Bryant, directed his work activity and laid
him off. 9 FMSHRC 339, 343. He further found that Mullins/Winchester
were in no way involved in the adverse action against Bryant.
9 FMSHRC 343.
It is also clear from the record that Mullins/Winchester did not
control the Dingess brothers. Mullins/Winchester had to follow up and
do things that Dingess failed to do. Tr. 97(c), Tr. 117. Joe and
Johnny Dingess were never around the mines, nobody knew where they were.
Tr. 111, 112. The Dingesses failed to comply with DNR requirements even
though urged to do so by Mullins/Winchester, they simply didn't do it.
Tr. 118. Sometimes Roger Cook would notify Dingess about rock dusting
and "sometimes they would do it and sometimes they wouldn't." Tr. 143.

1186

I find nothing in either the judge's findings of fact or in the
.record .which, on balance, leads me to conclude that Dingess was the
agent of Mullins/Winchester rather than an independent contractor.
Rather, I find that the record shows the contrary. Mullins/Winchester
hired a contractor that they thought was competent. As time went on,
Dingess' performance deteriorated in terms of both coal production
and in performance of its obligations under their contract and under
federal and state mining laws and regulations. Mullins/Winchester
did not stand idly by in the face of Dingess' deteriorating performance and the majority concludes that these efforts, many of them
aimed toward compliance with the Mine Act, destroyed Dingess' status
as an indepeudent contractor. I disagree. I do not believe that
Mullins/Winchester's actions exhibited the type or degree of control
necessary to destroy the independent status of Dingess. Further, I
am ci'f the opinion that owners should be encouraged to monitor compliance
by their contractors rather than discouraged from doing so. Accordingly,
I would find that Mullins/Winchester were not liable under section
105(c)(l) of the Mine Act for Dingess' discriminatory acts under the
Complainant's agency theory. Thus, in my opinion, Mullins/Winchester's
liability or lack thereof would turn on the Complainant's strict
liability theory, a matter not reached by the majority.

<2~tl~
"Joyce A. Doyle, COlll1lliiOiler
Distribution
Barbara Fleischauer
Attorney at Law
346 Watts Street
Morgantown, West Virginia

26505

Robert Q. Sayre, Jr., Esq.
Goodwin & Goodwin
1500 One Valley Square
Charleston, West Virginia 25301
Paul R. Sherdan, Esq.
Applachian Research & Defense
Fund Inc.
504 White and Browning Bldg.
Logan, West Virginia 25601
Dengess Mine Services.
Mr. Joe Dingess
Mr. Johnny Dingess
Box 1024
Chapmanville, West Virginia

25508

Administrative Law Judge James A. Broderick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1187

1188

ADMINISTRATIVE LAW JUDGE DECISIONS

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

SEP 1 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
GATEWAY COAL COMPANY,
Respondent

CIVIL PENALTY PROCEEDING

.
.

.
.
.

Docket No. PENN 87-251
A.C. No. 36-00906-3651
Gateway Mine

.

DECISION
Appearances:

Before:

Therese I. Salus, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary of Labor1
David Saunders, Safety Director, Gateway Coal Co.,
Prosperity, Pennsylvania, for Respondent.

Judge Broderick

STATEMENT OF THE CASE
The Secretary of Labor (Secretary) seeks a civil penalty for
the violation of 30 C.F.R. § 75.329 alleged in a citation issued
October 10, 1986, in connection with an imminent danger
withdrawal order issued the same day. Respondent did not contest
or seek review of the withdrawal order and, although both parties
have submitted argument as to whether it was properly issued, it
is not before me in this penalty proceeding. The citation
charged that Respondent permitted an excessive concentration of
methane to exist in a travelable portion of the 5-butt, 7-face
longwall bleeder system in the number 45 crosscut of the tailgate
entry of the subject mine. Respondent contends that the
inspector took the methane reading in the wrong area of the
bleeder system. Pursuant to notice, the case was heard in
Washington, Pennsylvania, on June 8, 1988. Joseph F. Reid and
Alex O'Rourke testified on behalf of the Secretary. Gary Hajdu
and Robert w. Hauser testified on behalf of Respondent.
Both
parties have filed post hearing briefs. I have considered the
entire record and the contentions of the parties, on the basis of
which I make this decision.

1189

FINDINGS OF FACT
1. At all times pertinent to this proceeding, Respondent
was the owner and operator of an underground coal mine in Greene
County, Penn·sylvania known as the Gateway Mine.
2. Respondent produced approximately 689,000 tons of coal
annually.
3. No evidence was submitted concerning Respondent's
history of prior violations. I conclude that the history was
favorable, and not such that a penalty otherwise appropriate
should be increased because of it.
4. On October 10, 1986, Federal mine inspector Joseph Reid,
an MSHA ventilation specialist, was assisting a regular MSHA
inspector on an inspection of the subject mine. They proceeded
first to the 5-butt, 7-face longwall. Coal was not being mined
at that time.
5. The inspectors walked out of the mine through the return
escapeway, examining the various bleeders on the way out.
Inspector Reid took methane readings in approximately 20 areas in
the bleeder system. This was an area from which pillars had been
extracted.
6. At the end of the tailgate entry of the bleeder system,
approximately 3 feet from the gob area, Inspector Reid took
readings showing 4.8 to 5.2 percent methane, at a point 12 inches
from the roof. The readings were taken with a hand held methane
detector. The area was well supported with cribs. The inspector
was standing between 2 cribs when he took the readings.
Inspector Reid orally informed Respondent that he was issuing an
imminent danger withdrawal order. The inspector then took three
bottle samples from the same area. He took an air reading at the
location where the air was crossing the gob and found 2397.5
cubic feet per minute.
7. The bottle samples were sent to the MSHA laboratory in
Mt. Hope, West virginia. Analyses showed methane concentrations
of 4.23 percent, 7.13 percent and 7.81 percent.
8. Inspector Reid issued withdrawal Order No. 2681195 under
section 107(a) of the Act, and citation 2681196 under section
104(a) charging a violation of 30 C.F.R. § 75.301. The citation
was modified July 1, 1987, to charge a violation of 30 C.F.R.
§ 75.329.
9. The bleeder entries are required to be examined weekly
by a certified person. A date board indicating such examinations

1190

was maintained in the area of the citation, approximately ten
feet furth~r from the gob than the point where the inspector took
his readings.
10. Although coal was not being mined, there were
approximately five people working in the longwall area when the
order and citation were issued. The inspector decided not to
order these men withdrawn but to permit the mine foreman to
attempt to correct the situation.
11. The condition was abated, the order lifted, and the
citation terminated the same day when a stopping was opened to
introduce additional ventilation into the area. Readings were
then taken in the area involved showing 1.4 percent to 1.5
percent methane.
12. During the initial inspection, the inspector took
additional methane readings at the regulator and at the mixing
point in the bleeder entry in question and found 17 percent
methane.
13. Respondent's assistant mine foreman, Gary Hajdu
accompanied Inspector Reid on October 10, 1986. He took readings
with a methane detector at a point approximately 10 to 15 feet
from .the crib where the Inspector had found the excessive methane.
Foreman Hajdu's readings showed from 2.7 to 3 percent methane.
He also took readings at the outby side of the crib and found 4.3
to 5 percent methane. He took further readings at the regulator
and found 1.3 to 1.7 percent methane. The regulator was
approximately 150 feet from the gob.
REGULATION
30 C.F.R. § 75.329 provides in part:
• • . all areas from which pillars have been • • •
extracted • • • shall be ventilated by bleeder entries
or by bleeder systems. • • •
When ventilation of such
areas is required, such ventilation shall be maintained
so as continuously to dilute, render harmless, and
carry away methane and other explosive gases within
such areas and to protect the active workings of the
mine from the hazards of such methane and other
explosive gases. Air coursed through the underground
areas from which pillars have been wholly or partially
extracted which enters another split of air shall not
contain more than 2.0 volume per centum of methane,
when tested at the point it enters such other
split • • •

1191

ISSUES
1. Whether the methane readings found by Inspector Reid on
October 10, 1986, constituted a violation of 30 C.F.R. § 75.329?
2. If a violation is found, was it significant and
substantial?
3. If a violation is found, what is the appropriate
penalty?
CONCLUSIONS OF LAW
IMMINENT DANGER
As I noted above, the inspector issued the citation charging
the violation with which we are here concerned, in connection
with an imminent danger withdrawal order under section 107(a).
Both parties have introduced evidence concerning the existence
vel non of an imminent danger and have argued the question in
their post hearing briefs. However, Respondent did not file a
contest or an application for review of the order with the
Commission. The propriety of the issuance of the order cannot be
challenged in a penalty proceeding. The issues before me are
whether the alleged violation took place and, if so, the
appropriate penalty. I make no finding as to whether an imminent
danger existed.
WHERE WERE THE READINGS AND SAMPLES TAKEN
There is some dispute as to where Inspector Reid took his
methane detector readings and his bottle samples. Reid testified
that he took them at a point about three feet from the gob area
and twelve inches from the roof while standing between two cribs.
Respondent's witness intimated that he took them while reaching
into the gob.
I accept Inspector Reid's testimony which is
consistent with his contemporaneous notes CGover111~ent's
Exhibit 6).
REQUIREMENTS OF 30 C.F.R. § 75.329
The regulatory standard has two distinct mandates:
Cl>
ventilation in bleeder entries required where pillars have been
extracted shall be maintained so as to dilute, render harmless
and carry away methane within such areas and to protect the
active workings of the mine; (2) air from· such areas which enters
another split of air shall not contain more than two percent
methane.
Itmann Coal Company v. Secretary, 2 FMSHRC 1986 (1980).
Active workings is defined in the regulations as "any place in a
coal mine where miners are normally required to work or travel."

1192

30 C.F.R. § 75.2Cg)(4). Respondent is charged with failing to
ventilate the area of its bleeder system so as to dilute, render
harmless and carry away methane within such areas. It is not
charged with permitting excessive methane concentrations at the
regulator or mixing points.
VIOLATION
There is no dispute that the readings and bottle samples
taken by Inspector Reid showed methane in a potentially explosive
concentration. Methane is explosive when its concentration is
between 5 and is percent. I have found that the readings and
samples were taken in a travelable portion of the bleeder system.
In fact they were taken within ten feet from the date board
maintained by the mine examiner. Therefore, this was an area
where miners are normally required to travel. It constituted
active workings of the mine. Since Respondent failed to dilute
and render harmless methane within such areas, a violation of 30
C.F.R. § 75.329 has been established. Respondent cited the case
of Secretary v. Greenwich Collieries, 8 FMSHRC 1390 (1986), but
that case involved a second requirement of § 75.329: methane
concentrations at bleeder evaluation points in excess of two
percent. It did not involve a charge of methane in an explosive
concentration. It is not applicable to this case.
SIGNIFICANT AND SUBSTANTIAL
A violation is properly termed significant and substantial

if it contributes to a safety hazard reasonably likely to result
in serious injury. Mathies Coal Co., 6 FMSHRC 1 (1984). Methane
will explode if it exists in the 5 to 15 percent range in the
presence of any ignition. An ignition may be created by a roof
fall which causes a spark. Roof falls in or at a gob area are
reasonably likely to occur. A methane explosion in an active
workings of a coal mine is likely to result in serious injury.
I
conclude that the violation was significant and substantial.
OTHER CRITERIA
There is no evidence as to how long the violative condition
had existed. The area was examined weekly. I am not able on
this record to conclude that the condition resulted from
Respondent's negligence. The condition was abated promptly by
introducing additional ventilation to the area.
PENALTY
Considering all the evidence in the light of the criteria in
section llOCi> of the Act, I conclude that a civil penalty of
$500 is appropriate for the violation found.

1193

ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Citation 2681196 issued October 10, 1986, charging a
violation of 30 C.F.R. § 75.329 is AFFIRMED including its
findings that the violation was significant and substantial.
2. Respondent shall within 30 days of the date of this
order pay a civil penalty in the amount of $500 for the violation
found herein.

'

j

,) ,.

tr_,{, !,(,,£, s

./
.. Ar /j~ z:c(.-l-l et\_
1

James A. Broderick
Administrative Law Judge

Distribution:
Therese I. Salus, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
David Saunders, Safety Director, Gateway Coal co., R.D. #2, Box
107, Prosperity, PA 15329 (Certified Mail>
slk

1194

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

SEP 8 1988

.
...
.

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

.

v.
RIVCO DREDGING CORPORATION,
Respondent

.

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 87-147
A.C. No. 15-12672-03506
Docket No. KENT 87-151
A.C. No. 15-12672-03505

:

.

Docket No. KENT 87-158
A.C. No. 15-12672-03507
Docket No. KENT 88-35
A.C. No. 15-12672-03508
River Dredge Mine

DECISION
Appearances:

G. Elaine Smith, Esq., Office of the
Solicitor,u.s. Department of Labor, Nashville,
Tennessee, on behalf of the Petitioner~
Gene A. Wilson, Esq., President, Rivco Dredging
corporation, Louisa, Kentucky, appearing on his
own behalf.

Before: Judge Maurer
STATEMENT OF THE CASE
These proceedings were filed by the Secretary of Labor,
Mine Safety and Health Administration (MSHA), under section
llO(a) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 820(a) (hereinafter the Act), to assess civil
penalties against the Rivco Dredging Corporation (Rivco).
Pursuant to notice, these matters were heara on
April 27, 1988 in Huntington, West Virginia.
Both parties
appeared, introduced evidence and submitted post-hearing
arguments which I have considered in making this decision.
with regard to the history of previous violations by
Rivco, I find the number of violations in the two years
previous to the inspections at issue to be few and that the
size of Rivco can be considered small. Furthermore, in the

1195

absence of any specific evidence to the contrary, I find that
the proposed penalties, if they are assessed, will not effect
the ability of Rivco to continue in business.
I.

Docket No. KENT 87-147

Citation No. 2776057
The inspector alleged in the citation that:
The tail roller of the stacking belt at the dredge
screening plant is not adequately guarded in that
the entire back of the roller is exposed and the
sides approx. 50% exposed whereby a worker engaged
in maintenance or cleanup can contact such roller
thereby incurring a serious injury.
30 C.F.R. § 77.400Ca> provides that:
"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."
Inspector Hatter, a mine inspector employed by MSHA for
approximately thirteen years, had occasion to issue the above
citation on October 8, 1986. He testified that the tail
roller of the stacking belt at the dredge screening plant
wasn't provided with an adequate and proper guard in the tail
area. He considered this to be a violation because the tail
roller was supposed to be guarded in accordance with
30 C.F.R. § 77.400(a).
Inspector Hatter allowed thirty days for abatement of
this citation, but when he returned on February 18, 1987, he
found that the tail roller had been only partially guarded
and was still in non-compliance with the mandatory standard.
The inspector thereupon issued section 104Cb) Order No.
2769993 for failure to abate the subject citation. The
condition was abated on or before the inspector's next visit
to the site on March 23, 1987.
Rivco does not dispute these facts, but states that the
conveyor had been completely disassembled for moving to a new
dredging location and was not in a condition for inspection
when Inspector Hatter appeared while this was in progress and
wrote the citation. In any event, Rivco disputes that this

1196

is a significant and substantial C"S&S") violation as marked
by the inspector.
Inspector Hatter testified that where rollers are not
properly guarded, persons working in the area may get a piece
of clothing caught in one or might get a tool caught in one,
resulting in a personal injury type accident. He assessed
the risk of the occurrence of this condition and such an
injury as reasonably likely if a proper guard wasn't provided.
I find Hatter's testimony to be credible concerning both the
fact of violation and "S&S", assess the negligence of the
operator to be moderate and the gravity as serious. Furthermore, I credit Hatter's testimony that the operator was
producing coal on the morning the citation was written.
Accordingly, Citation No. 2776057 is affirmed as issued
and I find an appropriate civil penalty to be $150, as
proposed.
Citation No. 2776060
The inspector alleged in the citation that:
A sign warning against smoking and use of open
flame is not posted at the diesel fuel storage tank
outby the screening plant. The sign thereon is so
weathered as to be illegible.
30 C.F.R. § 77.1102 provides that:
"Signs warning
against smoking and open flames shall be posted so they can
be readily seen in areas or places where fire or explosion
hazards exist."
The respondent essentially admits the violation, stating
that the sign was "not very legible". However, the
respondent also introduced evidence to the effect that the
tank in question is actually owned by the Ashland Oil Company.
The tank is brought into them by Ashland and they_ do not
always get the same fuel tank. Mr. Wilson testified that
some of them are well-marked and others are not so
well-marked. This particular one was not so well-marked and
therefore was in violation of the cited standard. However,
under the circumstances I find only slight negligence on the
part of the operator. Accordingly, I am going to affirm the
non "S&S" citation, but assess a civil penalty of only $50,
vice the $122 proposed.

1197

Citation No. 2784423
The inspector alleged in the citation that:
Safe access is not provided on the deck or walkway
on each side of the dredge where workers are
required to travel from and to the dredge itself as
well as the engine and control rooms and various
locations for examination and maintenance. The
dredge deck is of more or less smooth metal
construction which can become slick in inclement
weather or frost. No hand rail, safety chain or
cable is provided for prevention of a worker
falling or falling overboard.
30 C.F.R. § 77.205Ca) provides that:
"Safe means of
access shall be provided and maintained to all working
places."
It is undisputed that there was no handrail, safety
chain or cable provided to prevent a worker from slipping and
falling off the dredge. However, the respondent disputes the
need for any such safety devices. I concur with the
inspector that some means is necessary to assure safe access
to the dredge, at least in inclement weather. I take
administrative notice that smooth sheet metal would become
slick in wet conditions such as rain, sleet or snow. I also
find that the violation is "S&S" because in such weather
conditions, it is reasonably likely that someone would slip
and fall and sustain a serious injury, without some sort of
handrail to hold onto.
I accordingly affirm Citation No. 2784423 as an "S&S"
violation but reduce the operator's negligence to "low" from
"moderate" because I feel the operator genuinely felt that
any sort of handrail was unnecessary and they have operated
in that configuration for seven years with no one previously
suggesting otherwise. Therefore, I find that a civil penalty
of $110 vice the $150 proposed is more appropriate.
Citation No. 2784425
The inspector alleged in the citation that a violation
of 30 C.F.R. § 77.400(a) had occurred and the condition or
practice was alleged to be:

1198

The back portion and the LT. Cin by) side of the
plant feed belt tail roller is not adequately
guarded in that the back is guarded only by
X-bracing of the plant feeder hopper structure and
the LT. side is· exposed. j.ust inside the feeder base
structure whereby a worker can contact such roller
and incur a serious injury during maintenance or
cleanup.
The respondent, through Mr. Wilson, admitted that the
tail roller did not have a wire mesh guard on the one side,
but argued that it was unnecessary as it would be difficult
for someone to get into this area.
Inspector Hatter, on the
other hand, testified that a person could reach in there with
a tool to contact the roller and thereby incur injury. I
find a non "S&S" violation herein and moderate negligence on
the part of the operator. As in all the citations issued in
this case, a §104(b) order subsequently had to be issued to
persuade Rivco to abate the citation. Accordingly, I find
that a civil penalty of $122, as proposed, is appropriate.
Citation No. 2784426
The inspector alleged in the citation that a violation
of 30 C.F.R. § 77.400(a) had occurred and the condition or
practice was alleged to be:
A guard is not provided for the v-belts and pulleys
of the coal elevator where a person is required for
examination and maintenance. Such v-belts and
pulleys are located immediately adjacent to the
catwalk where personal contact therewith can cause
a serious injury.
The record establishes a violation of the cited standard.
However, because this unguarded pulley is in a very remote
area of the plant where no one goes except for the foreman to
grease on occasion and the electrical inspector to inspect,
and they only when the plant is not in operation; I find that
the probability is very slight, i.e., unlikely that a worker
would be injured in the area where the belt is exposed.
Therefore, I affirm Citation No. 2784426, only as a non "S&S"
citation. Also, because of the remoteness of this particular
violation and its foreseeable consequences, I find only
slight operator negligence. Accordingly, I will reduce the
proposed civil penalty of $195 to $75.

1199

Citation No. 2784427
The inspector alleged in the citation that a violation
of 30 C.F.R. § 77.205(a) had occurred and the condition or
practice was alleged to be:
Safe access is not provided to the coal elevator
drive in that a worker is required to climb over a
handrail adjacent to the upper shaker catwalk to
gain access to the travelway leading to the
elevator, which can result in a slip or fall and
serious injury.
Although this is not a regular work area, workers must
use this travelway for the monthly electrical inspection or
on an as needed basis to perform other tasks such as to
repair belt breakage or to service the head drive. The
record establishes a violation of the cited standard and I
agree with the inspector that a slip and fall hazard existed.
I likewise assess the operator's negligence as moderate and
find the proposed civil penalty of $122 to be appropriate to
the offense.
Citation No. 2784428
The inspector alleged in the citation that a violation
of 30 C.F.R. § 77.205(a) had occurred and the condition or
practice was alleged to be:
Two holes exist in the main plant floor about 16'
wide x 26" long x S" deep, of which approx. 8' of
each hole is covered by wire mesh screen, the
remainder being left open where a worker can step
into either hole and fall resulting in serious
injury.
The cognizant standard only requires that a safe means
of access shall be provided to all working places. I find
the respondent's evidence to be credible to the extent that
these two drainage holes in the floor are in an area
completely outside the normal flow of foot traffic and usual
access to any working place. A usable, safe walkway is
provided through, or rather around and over the cited area.
There is no reason apparent to me that a worker would be in
the area of the drain holes cited by Inspector Hatter.
Accordingly, Citation No. 2784428 will be vacated.

1200

II.

Docket No. KENT 87-151

Citation No. 2776055
Inspector Hatter alleged in this citation that:
The dredge engine and pump access travelway where a
worker is required to travel for maintenance and/or
repair, is not kept free of extraneous material
whereby a worker can trip-stumble and fall, thereby
incurring a serious injury in that a length of
approx. 3/8" chain, a length of water hose and a 5
gal lube bucket lying on its side are found
therein.
30 C.F.R. § 77.205Cb> provides that:
"Travelways and
platforms or other means of access to areas where persons are
required to travel or work, shall be kept clear of all
extraneous material and other stumbling or slipping hazards."
The inspector testified consistently with his written
allegation, including his "S&S" special finding. The
respondent doesn't dispute the fact that this clutter
existed, but rather its purported defense is that they were
still in the process of setting up, they were not producing
coal at the time and basically were not ready for an
inspection. That is in reality no defense at all.
Accordingly, Citation No. 2776055 will be affirmed and a
civil penalty of $50, as proposed, assessed.
Citation No. 2776056
The inspector alleged in the citation, as modified,
that:
Flammable liquid is not being stored in a safety
can in that approx. 3/4 gal. of gasoline for
fueling the bilge pump on the dredge, located in
the engine room, is found in a "lawn mower'rtype
can with no spring closing lid or spout cover.
30 C.F.R. § 77.1103(a) provides that: "Flammable liquids
shall be stored in accordance with standards of the National
Fire Protection Association. Small quantities of flammable
liquids drawn from storage shall ba Kept in properly
identified safety cans."

1201

Again, the respondent does not deny the gas can was on
the dredge but avers that it was only on the dredge
temporarily for transportation and would have been unloaded
off the dredge in due time.
It was not intended to be left
aboard.
I find a violation of the cited standard and assess
a civil penalty of $20, as proposed.
Citation No. 2776059
The inspector alleged in the citation that:
No type of fire extinguisher is provided at the
above ground diesel fuel storage tank located outby
the screening plant.
30 C.F.R. § 77.1109Ce>Cl> provides that:
"Two portable
fire extinguishers, or the equivalent, ~hall be provided at
each of the following combustible liquid storage installations:
Cl) Near each above ground or unburied combustible
liquid storage station."
Mr. Wilson testified that there were probably six fire
extinguishers being transported on the dredge and they were
only approximately 150 feet away from the fuel storage tank.
A fire extinguisher could have been taken over there in a
"couple of minutes" per Mr. Wilson. I find that that is not
"near" enough to comply with the standard and accordingly, I
find a violation of the cited standard, affirm the citation
and assess a civil penalty of $20, as proposed.
Citation No. 2784421
The inspector alleged in the citation that:
The Clark/Michigan 125B Loader being used for
loading coal is not provided with adequate brakes
in that the parking brake falls to hold repeatedly
on a slight grade.
30 C.F.R. § 77.1605(b) provides that: "Mobile equipment
shall be equipped with adequate brakes, and all trucks and
front-end loaders shall also be equipped with parking
brakes".
Equipped with parking brakes implies that those parking
brakes be capable of holding the equipment, even on a grade.
The parking brakes at issue ad~ittedly would not do that.
Therefore, I find the record herein establishes a violation

1202

of the cited standard. I affirm the citation, as issued, and
assess a civil penalty of $20, as proposed.
Citation No. 2784422
The inspector alleged in the citation that:
The Clark/Michigan 125B loader, being used for coal
loading at the screening plant is not provided with
a fire extinguisher continuously maintained in a
usable condition in that the extinguisher provided
thereon is discharged.
30 C.F.R. § 77.1109(c)(l) provides that:
"Mobile
equipment, including trucks, front-end loaders, bulldozers,
portable welding units, and augers, shall be equipped with at
least one portable fire extinguisher."
The regulation that the respondent is actually charged
with being in violation of in this instance, 30 C.F.R. § 77.1110,
provides:
"Firefighting equipment shall be continuously
maintained in a usable and operative condition. Fire
extinguishers shall be examined at least once every 6 months
and the date of such examination shall be recorded on a
permanent tag attached to the extinguisher."
The fire extinguisher the inspector found on the subject
loader was discharged.
Respondent did not contest this fact,
but explained that this would have been found by them and
exchanged for a charged one if they had been given the
opportunity to do so. This is not a viable defense.
I find the Secretary has sustained her burden of proving
the existence of the instant violation and I affirm the
citation and assess a civil penalty of $20, as proposed.
Citation No. 2784429
The inspector alleged in the citation that a violation
of 30 C.F.R. § 77.205(a) had occurred and the condition or
practice was alleged to be:
The RT.(inby) side catwalk adjacent and providing
access to the upper shaker screen at the plant is
punctured with the expanded metal loose in an area
approx. 30" long x 18" wide whereby a worker

1203

engaged in examination or maintenance can step
through the screen and incur a serious injury.
Rivco essentially admits the violation, but asserts that
there were two other means of access to the same area and
that the only person that goes up there anyway is the foreman.
Nevertheless, I concur with the inspector that a violation of
the cited standard occurred, and there was a reasonable
likelihood that an injury accident could have happened.
Furthermore, I find that a civil penalty of $50, as proposed,
is appropriate under the circumstances •..
Citation No. 2784430
Inspector Hatter alleged in this citation that yet
another violation of 30 C.F.R. § 77.205Ca) had occurred in
basically the same location and the condition or practice was
alleged to be:
Safe access is not maintained to the picking belt
on the RT. (outby) side in that to gain access
thereto, a worker must traverse Cl) the upper
shaker catwalk which has a hole about 30 x 18"
therein, (2) or use an unanchored crossover with no
steps on the Rt. Coutby) side which causes a worker
to climb up about 52" and swing around the shaker
catwalk ladder to get to the crossover and go down
the LT. (outby) side about 48 11 with only a 3" wide
metal plate to step on. A worker is on each side
of the belt picking rock and trash from coal.
Respondent raised the issue at hearing of duplicitous
pleading concerning this citation and the previous one (No.
2784429).
I agree. Abatement of Citation Nos. 2784429 and
2784430 required exactly identical action. The hole in the
right side of the upper shaker catwalk was repaired. These
two citations charge exactly the same violation. I have
already affirmed Citation No. 2784429. Therefore, I will
vacate Citation No. 2784430 as pleading a multipricitous
violation, for which a civil penalty has already been
assessed.

1204

III. Docket No. KENT 87-158
Citation No. 2784424
The inspector alleged in the citation dated October 9,
1986 that a violation of 30 C.F.R. § 77.400Ca) had occurred
and the condition or practice was alleged to be:
A guard is not provided for (5) five troughing
rollers on the plant feed belt where a worker is
observed picking rock and trash from coal and
contact with such rollers can cause a serious
injury. The condition exists on either side of
such belt and no stop cord is provided.
Subsequently, on November 21, 1986, section 104Cb> Order
No. 2775975 was issued for failure to abate the instant
citation. At a close out conference on November 25, 1986,
agreement was had to terminate the order and citation on the
basis that this particular area was no longer a work area,
and that there was no foreseeable use for this area again.
Mr. Wilson purportedly stated that if there ever was a need
for this work area again, that guards would be installed
before the work began. He also supposedly has instructed his
work force not to work in this area.
Respondent admits a worker was picking rock off a moving
belt in close proximity to unguarded rollers, but nonetheless
argues that there was no violation of the mandatory standard
at 30 C.F.R. § 77.400(a) because it was not a "regular" work
area. The cited standard, however, does not differentiate
between regular work areas and irregular work areas.
It
merely requires moving machine parts which may be contacted
and thereby cause injury to be guarded. Therefore, I find
that a violation of section 77.400 (a) has been established.
The record further establishes that the violation was a
"significant and substantial" one. It doesn't take much
imagination to follow Inspector Hatter's theory that if this
worker was inattentive or slipped while reaching for a heavy
piece of rock moving on this beltline, that she could catch
her clothing or her arm in one of these unguarded rollers.
I
believe that this is a reasonably likely occurrence and if it
in fact occurred would be reasonably likely to result in a
serious injury to her.
Applying the statutory criteria to the facts and
circumstances at hand, I find that the $150 civil penalty
proposed by the Secretary is appropriate.

1205

IV.

Docket No. KENT 88-35

Citation No. 2985265
The inspector alleged in the citation that a violation
of 30 C.F.R. § 77.400(a) had occurred on September 14, 1987
and the condition or practice was alleg.~d to be:
A guard is. not provided for the v-belt and pulleys

at the head drive of the plant discharge belt where
a worker engaged in examination or maintenance can
contact such components with a serious injury
resulting or if on the platform below, be struck by
a broken belt fragment.
The testimony of Hatter and Cantrell as well as the
photograph marked and received in evidence as Government
Exhibit No. 13 establish a violation of the cited mandatory
standard. However, I accept as more credible the
respondent's evidence as to the remoteness of the site of the
unguarded belt and therefore find it unlikely that any worker
would be injured by it.
Therefore, I am going to modify the instant citation and
aif irm it as a non "S&S" citation and reduce the proposed
civil penalty of $42 to $20.
Citation No. 2985267
The inspector alleged in the citation that a violation
of 30 C.F.R. § 77.205(a) had occurred dn September 14, 1987
and the condition or practice was alleged to be:
A safe means of access is not maintained on the LT.

shaker catwalk adjacent to the shaker drive in that
lack of support for the catwalk flooring metal
allows the flooring to sag under a workers weight
such that a foot will go under the flywheel guard
and can contact the moving drive belt with s-erious
injury. A worker is required to be in this area
for cleaning and maintenance.
Government Exhibit No. 14 illustrates that the flooring
in the cited area sagged to the extent that a worker's foot
could come into contact with the drive belt. Therefore, I
find a violation of the cited mandatory standard. However, I
regard the likelihood of this actually occurring as slight
and the operator's negligence to be slight as well.

1206

Accordingly, I will reduce the civil penalty from the amount
proposed, $42, to $20, and affirm the citation only as a non
"S&S" citation.
The "Jurisdictional" Issue
Periodically while these cases have been on my docket
Mr. Wilson has raised, subsequently abandoned and then raised
again an issue loosely described as "jurisdictional".
Respondent concedes that his coal processing plant does
process coal and is therefore a "coal mine" within the
meaning of the Act. However, Mr. Wilson contends that
dredging coal is not a "coal mine", and while he concedes
MSHA has jurisdiction under the Act to inspect his dredging
operation, he believes that he should be inspected by the
Sand and Gravel Division and not the Coal Division of MSHA.
The reason for all of this being his belief that Inspector
Hatter, who is a coal mine inspector, doesn't know anything
about dredging operations or dredges and this lack of
knowledge has caused Hatter to issue the instant flood of
citations. Mr. Wilson points out that before Hatter and
after Hatter, there were very few citations issued to the
Rivco Dredging Corporation and in fact, several of the Hatter
citations were subsequently vacated as "issued in error"
before they came before this Commission. I note that several
more have been vacated since, some of them by this decision.
Be that as it may, I have no authority to order any
particular MSHA division or off ice or any specific inspector
to inspect or not inspect the respondent's facilities. That
is a matter strictly within MSHA's purview. What I can and
do decide herein is that the respondent's sand and coal
extraction and processing operations are subject to the
jurisdiction of the Federal Mine Safety and Health Act of
1977 and this Commission plainly has jurisdiction over this
proceeding.
Civil Penalty Assessments
Upon consideration of the entire record in this case and
the foregoing findings of fact and conclusions of law, I find
that the assessment of civil penalties is warranted as
follows:

1207

Citation No.
2776057
2776060
2784423
2784425
2784426
2784427
2776055
2776056
2776059
2784421
2784422
2784429
2784424
2985265
2985267

Date
10/8/86
10/8/86
10/9/86
10/9/86
10/9/86
10/9/86
10/8/86
10/8/86
10/8/86
10/8/86
10/8/86
10/9/86
10/9/86
9/14/87
9/14/87

30 C.F.R.
Standard

Penalty

77.400(a)
77.1102
77.205(a)
77.400(a)
77.400(a)
77.20.SCa)
77.205(b)
77.1103Ca)
77.1109Ce)(l)
77.1605(b)
77.1110
77.205Ca>
77.400(a)
77.400Ca>
77.205{a)

$150
50
110
122
75
122
50
20
20
20
20
50
150
20
20

ORDER
Accordingly, IT IS ORDERED that Citation Nos. 2784426,
2985265 and 2985267 be, and hereby are, MODIFIED to delete
the issuing inspector's findings that the cited violations
were of such a nature as could significantly and
substantially contribute to the cause and effect of a mine
safety or health hazard.
IT IS FURTHER ORDERED that Citation Nos. 2784428 and
2784430 be, and hereby are, VACATED.
Respondent IS ORDERED TO PAY civil penalties totaling
$999 within 30 days of the date of this decision.

rerative Law Judge
Distribution:
G. Elaine Smith, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, suite 201-B,
Nashville, Tennessee 37215 (Certified Mail)
Gene A. Wilson, Esq., Rivco Dredging Corporation, P.
702, Louisa, Kentucky 41230 (Certified Mail)
nt
1208

o. Box

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

SEP 8 1988
WESTMORELAND COAL COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. VA 87-31-R
Citation No. 2753219;8/12/87

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

v.

.

Central Machine Shop

CIVIL PENALTY PROCEEDING

.
.

Docket No. VA 88-14
A.C.·No. 44-03108-03507
Central Machine Shop
ID No. 44-03108

WESTMORELAND COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

F. Thomas Rubenstein, Esq., Westmoreland Coal
Company, Big Stone Gap, VA, for Respondent;
James B. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, VA, for
Petitioner.

Judge Fauver

In these consolidated proceedings Westmoreland Coal Company
seeks to vacate Citation No. 2753219 under § 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et ~, and the Secretary of Labor seeks a civil penalty
under § llO(i) of the Act for the violation cited.
Based upon the hearing evidence and the record as a whole, I
find that a preponderance of the substantial, reliable and
probative evidence establishes the following:
FINDINGS OF FACT
1. Westmoreland owns and operates a surface facility near
Stonega, Virginia, which includes Cl) a building housing a

1209

central warehouse and a central machine shop and (2) a fuel depot
that includes gasoline and diesel storage tanks and fuel pumps to
service Westmoreland's vehicles.
2. The warehouse and machine shop are in the same building,
but are separated by a wall and a security "airlock" room. They
are managed by separate departments and personnel and their
employees are not interchanged.
3. The warehouse stores and distributes parts, supplies,
and equipment used by a number of Westmoreland's coal mines, the
nearest one being 2.5 miles away, and the machine shop repairs
and maintains equipment used in those mines.
4. The fuel depot, which is on the'same property and about
200 to 300 feet from the warehouse/machine shop building,
includes four 6,000 gallon storage tanks, fuel pumping filler
pipes and fuel pumps to service vehicles. Only authorized
Westmoreland vehicles may use the fuel pumps; these include
vehicles that regularly transport employees, mining supplies,
parts, and equipment to and from Westmoreland's coal mines.
5. On August 12, 1987, MSHA Inspector Daniel S. Graybeal
issued Citation No. 2753219 charging a violation of 30 C.F.R.
§ 77.1103Cd) based upon the following alleged condition:
The 240'0 gallon fuel storage depot was
not kept free of combustible weeds and
dry grass for a distance of 25 ft.
as described below: vegetation ranging
up to 18 inch[es] high had grown up to
within 10 ft. of the four tanks on 3
sides and within 5 ft. of the fuel
pumping filler pipes. The vegetations
consist of weeds and dry grass. The
fuel tanks were capable of containing
12000 gal. of gasoline and the same
amount of diesel fuel.
6. The factual allegations in the ci~ation were proved by
substantial and convincing evidence and are incorporated as
findings of fact.
DISCUSSION WITH FURTHER FINDINGS
Section 3Ch)(l) of the Act defines a "mine" broadly, as
follows:
Ch)( 1) "coal or other mine" means (A) an area of land from
which minerals are extracted in nonliquid form or, if in

1210

liquid form, are extracted with workers underground, CB>
private ways and roads appurtenant to such area, and CC)
lands, excavations, underground passageways, shafts, slopes,
tunnels and workings, structures, facilities, equipment,
machines, tools, or other property including impoundments,
retention dams, and tailings ponds, on the surface or
underground, used in, or to be used in or resulting from,
the work of extracting such minerals from their natural
deposits in nonliquid form, or if in liquid form, with
workers underground, or used in, or to be used in, the
milling of such minerals, or the work of preparing coal or
other minerals, and includes custom coal preparation
facilities.
* * *
In U.S. Steel Mining Company, Inc., 10 FMSHRC 146 (1988),
the Commission considered whether the Act applied to a mine
operator's repair shop that repaired equipment used in its nearby
coal mines. The Commission found it unnecessary to decide
whether the repair shop was a "surface installation" of a coal
mine and held, instead, that the "shop itself is a separate
surface 'coal mine' within the meaning of the Act .••• "
In W.F.Saunders & Sons, 1 FMSHRC 2130 (Decision of ALJ,
1979), Judge Melick held that a storeroom owned by a mine
operator was subject to the Act because parts and equipment
stored there were regularly used in the operator's work of
extracting coal.
The Secretary contends that Westmoreland's fuel depot is a
separate surface coal mine and, alternatively, that it is a
functional part of the machine shop, which is acknowledged to be
a covered mine. Westmoreland contends that the fuel depot is not
a separate coal mine, but is a functional part of the central
warehouse, not the machine shop, and therefore is not subject to
the Act.
I hold that the fuel depot is itself a separate surface coal
mine within the meaning 3(h)(l) of the Act. The fuel depot is
used only by Westmoreland's vehicles, including vehicles used on
a regular and substantial basis to transport personnel, parts,
supplies and equipment used in the work of extracting coal from
Westmoreland's mines.
The standard cited in Citation No. 2753219 C30 C.F.R.
requires that:

§ 77.1103(d))

Cd) Areas surrounding flammable liquid
storage tanks and electric substations
and transformers shall be kept free
from grass (dry), weeds, underbrush,

1211

and other combustible materials, such
as trash, rubbish, leaves and paper,
for at least 25 feet in all directions.
The Secretary proved a violation of this standard by a
preponderance of the evidence. Considering the criteria for a
civil penalty in § llOCi> of the Act, I find that the Secretary's
proposed penalty of $78 is appropriate.
CONCLUSIONS OF LAW
WHEREFORE IT IS ORDERED that:
1.

Citation No. 2753219 is AFFIRMED.

2. Westmoreland Coal Company shall pay the above civil
penalty of $78 within 30 days of this Decision.

~~al'~

Administrative Law Judge

Distribution:
F. Thomas Rubenstein, Esq., Westmoreland Coal Company, Legal
Department, Big Stone Gap, VA 24219 (Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(Certified Mail)

kg

1212

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

SEP 121988
CIVIL PENALTY PROCEEDING

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

:

Docket No. CENT 88-55-M
A.C. No. 41-01001-05506

:

San Saba Plant

v.
TEXAS ARCHITECTURAL
AGGREGATES INCORPORATED,
Respondent
DECISION
Appearances:

E. Jeffery Story, Esq., Office of the
Solicitor, U.S. Department of Labor, Dallas,
Texas, for the Petitioner;
David M. Williams, Esq., San Saba, Texas, for
the Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the
petitioner against the respondent pursuant to section llOCa)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 820(a).
Petitioner seeks a civil penalty assessment in the
amount of $91 for an alleged violation of mandatory safety
standard 30 C.F.R. § 56.11001. The respondent filed a timely
answer contesting the alleged violation, and a hearing was
convened in San Antonio, Texas. The parties waived the filing
of posthearing briefs, but I have considered the arguments
made on the record during the course of the hearing in my
adjudication of this matter.
Issues
The issues presented in this case are Cl) whether the
conditions or practices cited by the inspector constitutes a
violation of the cited mandatory health standard; (2) the
appropriate civil penalty to be assessed for the violation,
taking into account the statutory civil penalty criteria found

1213

in section llOCi> of the Act; and (3) whether the violation
was "significant and substantial." 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~

u.s.c. § 820Ci>.

2.

Section llOCi> of the 1977 Act, 30

3.

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

Stipulations
The parties stipulated to the following (Tr. 5):
1. The name of the respondent company is
Texas Architectural Aggregate, Inc. with the
place of business at San Saba, Texas.
2. Jurisdiction is conferred upon the
Federal Mine Safety and Health Review
Commission under the Federal Mine Safety and
Health Act, 30 u.s.c. § 801 et seq. The
alleged violation of the Act took place in or
involves the mine that has products which
affect commerce.
3. The name of the mine is San Saba Plant
and Quarry, identification number 41-0100. The
mine is located at or near San Saba, Texas;
San Saba county. The size of the company is
118,207 production tons or hours work per year,
and the size of the mine is 83,300 production
tons or hours work per y~ar.
4. The total number of inspection days in
the preceding 24 months is 22 days.
5. The total number of citatlons in the
preceding 12 months is 46.
The parties also stipulated to the admissibility of an
MSHA computer print-out concerning the respondent's prior
history of violations, and several photographic exhibits (Tr.
6; exhibits P-2, P-3; R-1 through R-6).

1214

Discussion
Section 104(a) "S&S" Citation No. 2868984, issued by MSHA
Inspector Edward R. Lilly on July 27, 1987, cites an alleged
violation of 30 C.F.R. § 56.11001, and the condition or
practice is described as follows:
Safe access was not provided to the
disconnect and starter boxes to the big and
small cone crusher. Persons were required to
crawl oyer conveyor belt and steel "I" beam of
the jaw crusher. The V-belt drive unit was
located beside electrical boxes exposing person
to moving machine parts and pinch points.
Petitioner's Testimony and Evidence
MSHA Inspector Edward R. Lilly testified that he issued
the citation because safe access was not provided to the
electrical switch boxes in question, in that a person would
have to climb across a conveyor belt, step over an I beam, and
across a V-belt drive unit to gain access to the switch boxes
to deenergize the power in the event of an emergency.
Mr. Lilly confirmed that the boxes were located under the
crusher building control booth where the crusher operator is
located to run the equipment. The boxes were located on a
platform 7 or 8 feet off the ground, and in order to reach
that location, foreman Kenneth Crim advised him that the
crusher operator would use a ladder located on the other side
of the building, and Mr. Lilly stated that once one reached
the ledge of the platform by means of the ladder, he would
have to crawl across a conveyor belt and around the end of the
V-belt pulleys to gain access to the boxes. In his opinion,
in the event of an emergency, one would have too many problems
in climbing over these obstacles to timely turn off the
switches. Mr. Lilly identified a photograph he took on May 5,
1988, showing the area in question, and he confirmed that
nothing had changed since the day he issued the citation, and
he described what was in the photograph in response to several
voire-dire questions by respondent's counsel (Tr. 14-19,
exhibit P-3).
Mr. Lilly confirmed that the crusher operator was in the
control booth at the time of his inspection, and when he asked
the operator how he gained access to the switch boxes in order
to turn off the power for repair work, the operator advised
him that he had to climb over the conveyor belt and across the
tail pulley to pull the switches and locK out the equipment.
Mr. Lilly confirmed that a stop-start button was located

1215

inside the booth to stop and start the equipment, but the main
disconnect switch consisted of the cited boxes in question.
Mr. Lilly further confirmed that the operator he interviewed
was the person responsible for any maintenance work on the
equipment, and that he would pull the main switches to kill
the power when there was maintenance work to be done. The
operator further advised him that he had on occasion pulled
the main power switches in question, and when asked to
describe the route that he took to accomplish this task, the
operator advised him as follows CTr. 24-25):
THE WITNESS: He told me that on occasion when
the crusher was plugged up or they had to go
into the crusher to get something out of it,
that in order to make it safe, they would have
to go pull the main power on this. And I asked
him then how did he got over to pull the main
power switch.
He said he crawled across the conveyor
belt, stepped on the I-beam between the V-belt
drive, and over the V-belt drive onto the
platform where the switch box is located.
JUDGE KOUTRAS: Did he indicate to you whether
or not all this equipment was operating or not
operating? Or was that whole area shut down
when he did this?
THE WITNESS:

The whole area was shut down.

JUDGE KOUTRAS: ·.rhen he wasn't crawling over an
operating conveyor belt?
THE WITNESS: No, sir. He pushed the button,
just the start/stop button to shut that down.
But in order to go inside of a piece of equipment, the switch has to be pulled and locked
out. A lock physically put on the switch.
JUDGE KOUTRAS: But I am talking about crawling
over -- the route he took to get to these junction boxes -- was !"le crawling over equipment
that was energized and operating? Or was he
working -- crawling over equipment. that was
shut down and locked out?
THE WITNESS: He was crawling over equipment
that was shut down, not locked out because he

1216

had· to pull the power to lock it out. But that
equipment -- if anyone had come up in the control booth, could push the button and start the
equipment up. That is why we require it to be
locked out.
Mr. Lilly confirmed that his inspection party gained
access to the switch boxes in question by means of a ladder
pointed out to them by Mr. Crim. Mr. Lilly stated that he
climbed up the ladder and climbed over the conveyors to reach
the switch boxes. He confirmed that the switch boxes would
have been directly accessible from the ground by means of a
ladder placed directly up to the location of the boxes from
ground level, but that no ladder was present (Tr. 30-31).
Mr. Lilly stated that in order to abate the citation, he
allowed the respondent to construct a ladder as a means of
direct access to the switch boxes without the necessity of
climbing over the conveyors. Once the ladder was used to gain
access to the switches, it was to be removed and hung out of
the way so that there was no access to the area for anyone
except employees who had business there. The ladder was permitted as a temporary means of abatement so that the respondent would not have to guard all of the moving machine parts.
Mr. Lilly stated that Mr. Williams advised him that he was in
the process of building a new motor control center, and the
switch boxes in question were to be eventually housed in a new
building. Although some progress has been made to relocate
the switch boxes, Mr. Lilly confirmed that they are still in
the same location (Tr. 31-32).
Mr. Lilly agreed that the use of a ladder for direct
access to the switches, without the necessity for climbing
over unguarded conveyors, would have been compliance, but at
the time of his inspection, no ladder was being used. He
agreed to the use of a ladder after the citation was issued
because the respondent advised him that in a few months the
switch boxes would be relocated, and he did not wish to
subject the respondent to the financial burden of guarding the
conveyors since the boxes were going to the moved (Tr. 35).
On cross-examination, Mr. Lilly identified the crusher
operator with whom he spoke on the day of his inspection as
Phillip Brown, and he confirmed that Mr. Brown advised him
that the route he took to reach the switch boxes was the one
he described previously. Mr. Lilly could not recall asking
Mr. Brown how long he had been employed at the mine (Tr.
36-37).

1217

Mr. Lilly confirmed that he is not an electrician. He
stated that he was told by Mr. Crim and Mr. Brown that the
cited switch was the main switch, and.he understood that the
stop-start s~itches were in the control booth. Referring to
respondent's photographic exhibit R-5, Mr. Lilly identified
the large switch box with a handle on the right as a main disconnect, but did not believe it was the main disconnect for
the entire plant because the switch boxes underneath fed
through the large box in question. He identified the red and
black switch buttons shown in photographic exhibit R-6 as the
stop-start switches inside the booth, and that all of the
equipment was started and stopped with these switch buttons.
Mr. Lilly believed that the large switch shown in exhibit R-5
controls the primary crusher, and the cited switches controlled the large and small cone crushers, and he confirmed
that this is how it was explained to him by Mr. Crim (Tr.
39-40).
Referring to photographic exhibits R-1 and R-2, Mr. Lilly
confirmed that access to the cited switches could be made with
no problem from under the open areas shown in the photographs
by means of a ladder. Mr. Lilly stated that he observed no
built-in ladders and that Mr. Crim advised him that he would
have to build one. He also stated that while there was a
ladder hooked to the side of a bin when he took the picture on
June 27, 1988, he observed no ladders on the day of his
inspection, and that he first observed a ladder when he
returned to the mine 2 weeks or a month later to abate the
citation. At that time, Mr. Crim showed him a ladder which he
had constructed with two-by-fours (Tr. 41-43).
In response to further questions, and referring to photographic exhibits R-1 and P-3, Mr. Lilly identified the location of the cited switches on the platform area beneath the
operator's control booth. He indicated that the operator
would exit the door to the booth, and go down the stairs to
the platform below, and across the conveyor belt and an I-beam
to gain access to the switches in question (Tr. 50-53).
Mr. Lilly confirmed that both Mr. Crim and Mr. Brown told
him that they had occasion to use the access route he described
to reach the switch box locations, and Mr. Crim confirmed to
him that this was the only available route. Mr. Lilly also
confirmed that he was told that the switch boxes were required
to be disengaged infrequently, or every 6-months, or twice a
day or a week, depending on the scheduled change out of the jaw
crushers, and the type of materials being processed (Tr. 58-59).

1218

Respondent's Testimony and Evidence
Joe R. Williams, respondent's president and general manager, testified that he was familiar with the plant electrical
system and helped design the original plant when it was built
in 1960 and 1961. Referring to photographic exhibits R-1
through R-6, Mr. Williams explained the location and function
of several switch boxes used in the operation of the equipment.
He identified the switch box which concerned Inspector Lilly
as the one located on the lower deck beneath the control booth
as depicted in exhibit R-1 (Tr. 62-66}.
Mr. Williams stated that the disconnect switches for the
large and small cone crusher would be accessed in the event of
a malfunction in the starter motor, and that Mr. Crim would
need to access the switches in the event of a malfunction, but
that the crusher operator generally does not need to be in the
area.
In the event of a malfunction, or the need to test the
equipment, or to repair any heater circuits, an electrician
would be called to do this work. This would occur once every
year or two, and in the event of a cone malfunction, or the
need to make electrical repairs, the entire plant operation
would be shut down (Tr. 67-69}.
Mr. Williams believed that access to the cited switch box
could be made from the operator's work platform by sitting on
the deck and "take your foot and shove the controls down. cut
off the breaker." One could also "belly down there and reach
with your hand and shut it off and turn it on. It is awkward"
(Tr. 70). Malfunctions in the disconnect box would include a
blown fuse or circuit problems which would necessitate shutting down the entire plant in order to service the box (Tr.
70-71).
Several years may pass before any such problems
appear (Tr. 72).
Mr. Williams stated that an angle iron movable ladder is
located at the crusher to climb up onto the work deck on the
opposite side of the crusher, but it does not appear in any
of the photographs, and when asked whether a ladder was present when Mr. Lilly issued the citation, Mr. Williams responded
"probably we did" (Tr. 73). He confirmed that the crusher in
question is operated by three people (Tr. 73). If an electrician were required to service the disconnect box in question,
he would use a ladder to gain access to it (Tr. 75).
Mr. Williams confirmed that Mr. Brown had been employed
at the plant for approximately 1 year at the time of the
inspection and he was in training as a crusher operator. He
also confirmed that the access route that Mr. Lilly stated was

1219

described to him by Mr. Crim was a possible path of access to
the cited boxes, and that the use of a ladder on the other
side of the crusher was also a means of access. Regarding the
route taken by Mr. Crim, as described by Mr. Lilly,
Mr. Williams stated "it is not really all that damn difficult.
You can step across the main conveyor, * * * you don't crawl
under any conveyor because the return conveyor doesn't come
out that far" (Tr. 77).
Mr. Williams identified the ladder he was referring to as
the one shown in exhibit P-2 (Tr. 78). Counsel David Williams
stated that the ladder is no longer there, and that access to
the switch boxes would not normally be made by the ladder
shown in the photograph, but rather by a ladder placed at
another location (Tr. 90). Joe Williams was certain that a
ladder was available for use as access to the cited boxes at
the time the inspector issued the citation (Tr. 95). When
asked why Mr. Crim would have told Mr. Lilly that no ladders
were available on the premises, Mr. Williams responded "unless
Mr. Crim couldn't think fast enough to find a ladder. And I
think that is probably the whole circumstances" (Tr. 107).
When asked whether he doubted that crusher operator Brown told
the inspector about the route he took to the switch boxes,
Mr. Williams stated that he probably and very possibly made
the statement to the inspector (Tr. 95).
Inspector Lilly was recalled, and he confirmed that while
he issued guarding citations during his inspection of July 27,
1987, none of these involved any of the conveyor equipment
along the route described as an access to the cited switch
boxes, and no danger of falling citations were issued (Tr.
101-102). Mr. Lilly reiterated that he spoke with Mr. Crim,
and that they both looked for an available ladder, but could
not find one. The metal angle iron ladder referred to by
Mr. Williams could have been taken down, but this would have
resulted in no ladder being available for access to the
crusher building (Tr. 103).
Mr. Lilly confirmed that he told Mr. Crim that Mr. Brown
told him that he accessed the switch boxes by the route previously described, and that Mr. Crim said "I have gone that
way myself on occasions to pull the switch." Mr. Lilly confirmed that he and the other inspector inspected the switch
boxes, and "if there is a ladder in that picture, it was
because we placed one thereto get access to that platform--the
electrician and I." Mr. Lilly confirmed that the ladder he
used was the angle ladder described by Mr. Williams (Tr. 104).
Mr. Lilly confirmed that ha6 Mr. Brown shown him a ladder or
advised him that he used a ladder as a means of access to the

1220

cited switch boxes, he would not have issued the citation (Tr.
105).
Arguments Presented by the Parties
The parties agreed that Mr. Lilly issued the citation
based on his conclusion that in the normal course of business,
if someone had to go to disengage the cited disconnect boxes,
the route of travel he would take to accomplish this would be
to go down one level from the control booth and go over a
conveyor and cross a steel beam to reach the boxes. They also
agreed that Mr. Lilly's conclusion regarding the access route
came from his conversations with the crusher operator and
foreman, Mr. Brown and Mr. Crim (Tr. 81).
Petitioner's counsel asserted that the testimony of
Inspector Lilly establishes that a safe means of access was
not provided to the switch boxes in question, and that respondent's president Joe Williams agreed that the statements by
Mr. Crim and Mr. Brown to the inspector were possibly correct.
Under the circumstances, counsel asserted that Inspector Lilly
acted reasonably in issuing the citation (Tr. 108).
With regard to the inspector's "significant and substantial" finding, petitioner's counsel asserted that notwithstanding Mr. Lilly's agreement that the plant would be shut down
before any maintenance work was performed, and that no one
would likely cross over any moving conveyor belts to reach the
switch boxes, there was a potential for someone falling 7 or
8 feet to the ground, even if the belts were not running CTr.
109). Counsel acknowledged that Mr. Lilly issued no citations
for the failure to use a safety belt (Tr. 110).
Respondent's counsel took the position that since access
to the cited switch boxes was not frequent, and occurred once
a year or every other year, the location could hardly be considered a normal working place (Tr. 96). Respondent's counsel
also indicated that when he first reviewed this case, he
believed that Inspector Lilly had observed something that led
him to believe that safe access was not provided to the cited
switch boxes, and he had no information indicating that the
crusher operator had spoken to Mr. Lilly and informed him
about the route which he had taken to the switch boxes.
Counsel stated further that since Mr. Lilly made reference to
moving machine parts and pinch points, he found it difficult
to believe that such a serious "significant and substantial"
situation could be abated by simply putting up a ladder (Tr.
111).

1221

Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 56.11001, .for failure to provide a
safe means of access to the disconnect and starter boxes used
in conjunction with the big and small cone crushers. Section
56.11001, provides that "Safe means of access shall be provided and maintained to all working places." The phrase "working place" is defined by section 56.2, as "any place in or
about the mine where work is being performed."
In Massey Sand and Rock Company, 4 FMSHRC 188 (February
1982), 2 MSHC 1722, a miner walked up a conveyor belt to reach
a head pulley located 35 to 40 feet off the ground so that it
could be greased. As he began to grease the head pulley, the
conveyor started and threw him to the ground. Judge Morris
affirmed a violation of the safe access requirements of
section 56.11001, and found that the operator could have
provided a variety of means and access, including a ladder.
In Mohave Concrete & Materials Company, 6 FMSHRC 1195,
1198 (June 1983), 3 MSHC 1040, the judge affirmed a violation
of section 56.11001 in a situation where an inspector observed
a crusher operator climb up a crusher feeder frame and stand
on a beam to perform his work. The violation was abated after
the operator provided a platform and ladder for access to the
work station in question.
The respondent's suggestion that the location of the disconnect boxes may not be conaidered a "working place" because
visits to that area were infrequent IS REJEC'rED. Regardless
of the frequency of their visits to the switch box area, when
Mr. Crim and Mr. Brown had occasion to go to the area they
were there to pull the power for the purpose of facilitating
maintenance or repair work on the equipment, the clearing of
clogged materials, to check the circuit or blown fuses, or to
change out the jaw crushers. Under the circumstances, the
connector box location was clearly a place where work was
being performed within the meaning of "working place" as
defined by section 56.2.
With respect to the respondent's suggestion that a ladder
was available for access to the cited boxes, I find no credible evidence to support this contention. The evidence clearly
establishes that no ladder was used by Mr. Brown or Mr. Crim
when they had a need to access the boxes. Further, although
Inspector Lilly stated that he used a metal angle iron ladder

1222

to access the platform where the boxes were located, the evidence of .record suggests that this particular ladder was not
used for normal access to the boxes and was located at another
place. Further, I find no credible evidence to rebut Inspector Lilly's credible testimony that the respondent failed to
establish that ladders were used as a normal and regular
access route to and from the cited boxes in question.
Inspector Lilly's testimony, which I find credible,
establishes that at least two individuals, Mr. Brown and
Mr. Crim, gained access to the cited boxes in question by a
means of travel that took them over a conveyor belt and across
an I-beam to the location of the boxes. These individuals had
occasion to go to the boxes by means of the route described by
the inspector, and the fact that they may have gone their
rather infrequently is no defense to the violation. Although
the respondent raised some doubt as to whether or not Mr. Crim
made the statements attributed to him by Mr. Lilly, respondent
conceded that Mr. Brown probably made the statements. In any
event, since the respondent did not call Mr. Brown or Mr. Crim
to testify in this case, Mr. Lilly's unrebutted testimony
supports his belief that the route of travel taken by these
individuals exposed them to certain trip and fall hazards, as
well as to potential hazards from the unguarded equipment and
machine parts and pinch points described by the inspector.
Under the circumstances, I conclude and find that the evidence
establishes that the access route described by the individuals
to the inspector was unsafe, and that a violation of section
56.11001 has been established. Accordingly, the citation IS
AFFIRMED.
Significant and Substantial Violation
A "significant and substantial" violation is described
in section 104(d)(l) of the Mine Act as 1 violation qof such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. § 814(d)(l). A violation is properly
designated significant and substantial "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co., 3 FMSHRC 822,
825 (April 1981).
In Mathies Coal Co., 6 FMStlrtC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant and substantial" as follows:

1223

In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove:
Cl) the· underlying violation of a mandatory safety standard; C2) a discrete safety hazard--that is, a measure of
dange~ to safety-contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129, the Commission stated further as follows:
We have explained further that the third
element of the Mathies formula "requires that
the Secretary establish a reasonable likelihood
that the hazard contributed to will result in
an event in which there is an injury." U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance
with the language of section 104Cd)(l), it is
the contribution of a violation to the cause
and effect of a hazard that must be significant
and substantial. U.S. Steel Mining Company,
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
S"t:eel Mining Company, Inq., 6 FMSHRC 1573,
1574-75 (July 1984).
Mr. Lilly believed that there was a reasonable likelihood
of an injury to an employee who had to cross the conveyors to
reach the location of the switch boxes, and there was a
possibility of tripping or falling if the conveyor were muddy
or if a lot of dust was present (Tr. 23). He confirmed that a
citation was also issued for not locking out the equipment,
but he could not recall whether it involved the same safe
access condition CTr. 26). Mr. Lilly was also concerned about
possible sprains or broken bones if anyone fell off an opening
between the conveyor and I-beam, or while standing or stepping
onto the platform from the I-beam (Tr. 27).
Mr. Lilly agreed that Mr. Crim and Mr. Brown would not be
climbing over moving conveyors belts, and that the entire area
was shut down when these individuals had a need to access the
boxes. However, Mr. Lilly testified that crusher operator
Brown informed him that even c.hough he.shut the equipment down
by means of the stop-start switch in the control booth, he

1224

still had to go to the location of the boxes to pull the main
power in.order to make the crusher area safe for anyone
freeing plugged material from it. Mr. Lilly believed that
anyone could have entered the control booth and activated the
equipment by means of the start-stop buttons, and I believe
that in the event this occurred before the main switch was
disconnected, and while someone was on the conveyors or in the
proximity of unguarded and moving machine parts, a potential
hazard and injury would be present.
Even assuming that the equipment over which Mr. Crim and
Mr. Brown had to climb was totally deenergized and locked out
while they were climbing over it, Mr. Lilly was still concerned that slipping or tripping hazards would be presented by
the route of travel taken by these individuals, particularly
if the conveyor was wet, muddy, or dusty. They would also be
exposed to a falling hazard from the I-beam over which they
had to step to reach the platform where the boxes were located.
Under all of these circumstances, I conclude and find that
Mr. Lilly's "significant and substantial" finding was reasonable and proper, and IT IS AFFIRMED.
History of Prior Violations
The parties stipulated that during the preceding 24-month
period, respondent was subjected to 22 inspection days, and
was issued 46 citations during the preceding 12-month period.
Petitioner submitted an unevaluated computer print-out listing
the respondent's violation history for the period March, 1978
through June, 1988, which contains no information as to the
civil penalties assessed for each of the violations listed, or
any information as to which of the citations have been paid,
and which have not {exhibit P-1). In any event, after review
of this information, I conclude and find that for the immediate 24-month period prior to the issuance of the violdtion
which has been affirmed in this case, the respondent had an
average history of compliance at its San Saba plant and quarry.
I further conclude and find that respondent's compliance
record is not such as to warrant any additional increases in
the civil penalty assessment for the violation in question.
Size of Business and Effect of Civil Penalty on the
Respondent's Ability to Continue in Business
Based on the stipulations of the parties, and the testimony of Mr. Williams concerning the San Saba quarry production
and the number of employees operating the plant, {Tr. 72), I
conclude and find that the respondent is a small mine operator.
Absent any information to the contrary, I also conclude and

1225

find that the payment of the civil penalty assessment for the
violation in question will not adversely affect the respondent's ability to continue in business.
Gravity
I conclude and find that the violation was serious. The
failure to provide safe access to the cited boxes in question
presented a potential injury to the employees climbing over
the conveyors and I-beam in question, and in the event of a
slipping, tripping, or falling accident, injuries of a
reasonably serious nature could be expected.
Negligence
I conclude and find that the violation was the result of
ordinary negligence on the part of the respondent because of
its failure to exercise reasonable care to insure that its
employees used a safe access route for reaching the cited
boxes. It seems to me that this could have been accomplished
by simply providing a ladder in the immediate ground level
area beneath the platform or crusher operator's booth, or at
least having one readily available, with appropriate instructions as to its use· by any employee or serviceman who may have
had a need to access the boxes for maintenance, repair, or
inspection.
Good Faith Compliance
The record establishes that the respondent took appropriate steps to timely abate the citation by providing a ladder
as a safe means of access to the boxes in question. I conclude and find that the respondent demonstrated good faith
compliance.
Civil Penalty Assessment
In view of the foregoing findings and conclusions, and
taking into account the requirements of section llOCi> of the
Act, I conclude and find that the petitioner's proposed civil
penalty assessment of $91 for the violation is reasonable and
appropriate. Accordingly, IT IS AFFIRMED.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment in the amount of $91 for the section 104Ca> "S&S"
Citation No. 2868984, July 27, 1987, 30 C.F.R. § 56.11001.

1226

Payment is to be made to MSHA within thirty C30) days of the
date of this decision, and upon receipt of payment, this
proceeding is dismissed.

h.f~

Administrative Law Judge

Distribution:
E. Jeffrey Story, Esq., Office of the Solicitor, U.S.
Department of Labor, 525 South Griffin Street, Suite 501,
Dallas, TX 75202 (Certified Mail)
David M. Williams, Esq., P.O. Box 242, San Saba, TX 76877
(Certified Mail)
/fb

1227

FEDERAL MINE SAFETY AND HEAL Tff,REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGE:.::;
COLONNADE CENTER
ROOM 280 1244 SPEEH BOULEV~RL 1
DENVFR CO 80204

SEP 141988

CIVIL PENALTY PROCEEDING

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

Docket No. CENT 87-59-M
A.C. No. 41-02577-05507
Crusher No. 1 Mine

v.
PRICE CONSTRUCTION,
INCORPORATED,
Respondent
DECISION
Appearances:

Brian L. Pudenz, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
for Petitioner;
Mr. Bob c. Price, Price Construction, Incorporated,
Big Spring, Texas, pro~·

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and Health
Administration CMSHA), charges respondent with violating two safety
regulations promulgated under the Federal Mine Safety and Health Act,
30 u.s.c. § 801 et seg., (the Act).
After notice to the parties a hearing on the merits was held in
Big Spring, Texas on May 24, 1988.
The parties waived their right to file post-trial briefs and
they submitted their cases on oral argument.
Summary of the Case
Citation No. 2869357 charges respondent with violating 30 C.F.R.
56.14001, which provides as follows:
§ 56.14001

Moving machine parts.

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.

1')")Q

Citation No. 2869358 charges respondent with violating 30 C.F.R.
56.16005. The regulation requires that compressed and liquid gas
cylinders be secured in a safe manner.
Stipulation
The parties stipulated as follows:
1. The name of the respondent company is Price Construction,
Inc. with a place of business near Big Spring, Texas.
2. Jurisdiction is conferred upon the Federal Mine Safety and
Health Review Commission under the Federal Mine Safety and Health
Act, 30 u.s.c. § 801 et 2-~·
The alleged violation of the Act took
place in or involves the mine that has products which affect
commerce.
3. The name of the mine is Crusher No. 1, identification number
41-02577. The mine is located near Salt Flats, Texas in Culberson
County. The size of the company is 32,723 production tons or hours
worked per year and the size of the mine is 15,007 production tons or
hours worked per year.
4. The imposition of any penalty in this case will not affect
the operator's ability to continue in business.
5. The total number of inspection days in the preceding twentyfour months is three.
6. The total number of assessed violations (including single
penalties timely paid) in the preceding twenty-four months is one.
7. On March 25, 1987, an inspection was conducted by Moises A.
Lucero, an authorized representative of the Mine Safety and Health
Administration.
8. Two Section 104(a) citations (numbers 2869357 and 2869358)
were issued for violations of 30 C.F.R. 56.14001 and 30 C.F.R.
56.16005 respectively, on March 25, 1987.

9. An abatement date of March 25, 1987 was set for both citations. Both citations were abated immediately by respondent.
10. On May 21, 1987, respondent received its first proposed
penalty.

1229

11. On May 21, 1987, respondent requested a hearing on the above
citations.
12. On July 13, 1987, petitioner filed a complaint proposing
penalty.
13. Respondent agrees to ·withdraw its request for hearing on
citation number 2869358 and the Secretary agrees to reduce the
citation to a non-significant and substantial, and reduces the proposed penalty to $38.00. This reduction is supported by the facts
that the violation was immediately abated, the respondent was unaware
of the violating condition, the condition was a single incident and
the likelihood of injury or illness was low.
II
Agreed Statement of the Issues
1. Whether a violation as alleged in Citation Number 2869357
is a significant and substantial violation within the meaning of the
Act.
2. Whether the equipment concerned in Citation Number 2869357
was guarded by its location.
3. Whether a violation of 30 C.F.R. 56.14001 as alleged in
Citation Number 2869357 did in fact occur.
III
Respondent's Statement of an Additional Issue
1. Whether the equipment concerned in Citation No. 2869357
could be reasonably expected to be contacted by persons.

IV
A.
1.

Witness for Petitioner

Moises A. Lucero will testify as to the conditions at the

mine.
B.

Witnesses for Respondent

1.

Wesley Coleman, Plant Superintendent for Price Construction,

2.

Charles E. Price, retired MSHA Inspector.

Inc.

1230

v
Exhibits
The following is a list of petitioner's exhibits:
Pl:

.The complaint proposing penalty with attachments.

P2:

Citation Number 2869357 on MSHA Form 7000-3 and
Form 7000-3(a).

P3:

Investigator field notes (if available).

P4:

Photograph of air-compressor equipment at its
location.

The following is a list of respondent's proposed exhibits:
Rl:

MSHA Form 7000-3, Citation Number 286

R2:

MSHA Citation Number 2869359 dated 4-1-87.

R3:

MSHA Form 7000-3A Citation Number 2869359-1
dated 4-8-87.

R4:

MSHA Form 70002 Citation Number 2869360 dated
4-1-87.

RS:

MSHA Form 7000-3Ca) Citation Number 2869360
dated 4-3-87.

R6:

MSHA Form 7000-3 Citation Number 2869360 dated
4-1-87.

R7:

MSHA Form 7000-3Ca) Citation Number 2869381-1.

R8:

Hand written note documenting telephone request
of Mr. Sidney Kirk for C.A.V. inspection.

R9:

Telephone billing record dated 2-1-87.

RlO:

MSHA Form 4000-51 CAV-Nonpenalty notices dated
1-8-87 - 15 pages.

Rll:

MSHA Form 7000-3Ca) CAV-Notice dated 5-7-87.

Rl2:

Form 7000-3Ca) CAV-Notices dated 3-25-87 - 15 pages.

Rl3:

Plant site and equipment photos.

1231

Summary of the Testimony
Moises Lucero, an MSHA inspector for ten years, testified for
the Secretary.
Mr. Lucero presented an issue as to whether a V-belt was unguarded on an air compressor. He inspected the company and issued
Citation Number 2869357 on March 25th for a violation of § 56.14001.
The violation occurred because a V-belt on an air compressor next
to a travelway was unguarded. Persons were exposed to the moving
machine parts.
(Tr. 16, 17~ Ex. Pl). The inspector took one photograph before he ran out of film (Tr. 18). The V-belt for a three
H.P. drive was inside a trailer tool house used by four employees
(Tr. 18, 19).
The inspector's photograph was taken from the doorway of the
trailer.
The compressor was at the entrance <Tr. 19). Along the
side of the compressor is the walkway. Shelves are behind the
compressor. The trailer wall is on the right side (Tr. 20). The
inspector did not remember one way or the other if any object was
in front of the compressor (Tr. 20, 21, 114). However, Exhibit R9
shows a box to the front of the compressor (Tr. 114).
The inspector evaluated the gravity of the violation and the
likelihood of an injury (Tr. 21, 22, 24, 26).
A person walking by the V-belt would be within two feet of the
exposed part CTr. 27).
Wesley Ray Coleman, 29 years of age, testified for respondent.
The witness has been a supervisor with respondent since 1985.
During that time there have been three to four MSHA inspections
and a courtesy inspection (Tr. 118, 119).. Three different MSHA
inspectors were involved.
Mr. Coleman was familiar with the air compressor located inside
the doorway of the parts van (Tr. 120).
·
The compressor has always been bolted down. It is about eight
feet back from the van door on the right hand side. The trailer
is entered through two double doors on the back end of the van.
Shelves are at the far end away from the door. The van wall is on
the right side of the air compressor. A walkway is on the outside
of the air compressor~ the center of the walkway is approximately
three and one-half feet from the compressor <Tr. 121, 122).

1232

The moving parts of the compressor are between the air compressor and positioned next to the wall.
There are no moving parts
on the front side. The air hose itself goes down through a hole in
the floor (Tr. 123). The hose does not cause a tripping hazard
(Tr. 124).
There is no reasonable access to any of the moving parts from
the aisle or from either end (Tr. 125). A person would not fall from
the aisle way and encounter any moving parts (Tr. 126). This is
because the electric motor guards the sheave on the motor.
The head
of the air compressor and the wall guards the pulley. The flywheel
on the compressor is smaller than the air compressor body and the air
compressor head.
The compressor is waist high and its moving parts could only be
contacted by the deliberate act of reaching behind the compressor
(Tr. 127>. No clothing or body parts could be sucked into the intake
valve (Tr. 128, 129).
None of the other three MSHA inspectors ever claimed this was a
hazard (Tr. 129). The compressor was guarded after the citation was
issued <Tr. 130).
The compressor's moving parts were guarded (by location) in this
fashion: the rear side was guarded by the wood paneling, the aisle
side by the oversized electric motor and compressor head, the front
end by stored materials consisting of cases of grease (Tr. 131, 132,
145, 146, Ex. R 9, R 11).
The compressor has never been involved in any injury while the
witness has worked there (Tr. 138).
In cross-examination the witness agreed it was possible to get
a hand into the space on the compressor CTr. 142).
Evaluation of the Evidence
The pivotal question here is whether the V-belt on the cited air
compressor was guarded by location.
The evidence is essentially uncontroverted that the V-belt
was guarded at the rear by the wood panel, at the aisle side by the
motor, and on the inner side by the wall of the van. The controversy

1233

thus focuses
Respondent's
the front of
his supplies

on whether or not the V-belt was guarded at the front.
witness Coleman indicated cases of grease were stored to
the compressor. As a supervisor he should know where
were stored.

On the other hand, the inspector did not remember if there was
any material stored to the front of the compressor. "Further, his
single photograph does not include that area (Exhibit P 2). But
respondent's photograph clearly shows several boxes in front of the
compressor blocking access to it (Exhibit R 9).
For these reasons I conclude that the V-belt was guarded by
location. Further, the exposed moving parts could not be reasonably contacted by any person.
Respondent also raised the defense of collateral estoppel.
Specifically, respondent argues and offers evidence to prove t.hat
other MSHA inspectors had inspected this area but had failed to issue
any citations for this condition.
The doctrine of collateral estoppel does not apply in these
circumstances. See Servtex Materials Company, 5 FMSHRC 1359 (1983)
and King Knob Coal Co., Inc., 3 FMSHRC 1417 (1981).
For the reasons initially stated Citation 2869357 and all
penalties therefor should be vacated.
Citation 2869358
In connection with this citation the parties stipulated that the
citation could be reduced to a non-significant and substantial violation and the penalty reduced to $38.00.
I have reviewed the proposed settlement and I find it is reasonable and in the public interest. It should be approved.
Based on the foregoing findings of fact and conclusions of law I
enter the following:

1234

ORDER
1.

Citation 2869357 and all penalties therefor are vacated.

2. Citation 2869358 is affirmed as a non S&S violation and a
penalty of $38.00 is assessed.
3.
Respondent is ordered to pay to the Secretary the sum of
$38.00 within 40 days of the date of this decision.

is
ive Law Judge

Distribution:
Brian L. Pudenz, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 South Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail>
Mr. Bob C. Price, Vice-President, Price Construction, Inc., P.O.
Box 1029, Big Spring, TX 79720
(Certified Mail)
/ot

1235

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
OFFICE.. Of ADMINISTRA 1 IVE LAW JU OGE S
COL0NNl\:'E. CE:NTER
1:·4.: S'-'fEH BUULFVARl)
Dt NVfh Cu so~·()~

ROOM:.>!<'

COLORADO WESTMORELAND, INC.,
Contestant

SEP 141988

CONTEST PROCEEDINGS
Docket No. WEST 88-223-R
Order No. 3226870; 5/6/88

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

Orchard Valley.West Mine
Mine ID 05-04184

ORDER OF DISMISSAL
Before:

Judge Morris

The issues presented here arise under the Federal Mine
Safety anj Health Act, 30 U.S.C. § 801 et seq., ("Act").
Contestant filed its notice of contest herein seeking
a review of Safeguard number 3226870 issued May 6, 1988.
Said safeguard recites that contestant failed to comply with
30 C.F.R.§ 75.1403 but no enforcement action was issued based
on the safeguard.
The safeguard provides as follows:
Dick Love (Utility Man) was operating a scoop
in a forward motion while J.R. Davis (Section
Foreman) was being transported inside the scoop
bucket in the #3 entry of the 001-0 section.
Notice to provide safeguards.
All scoops, EIMCO or other types not equiped
(sic) with locking devices to precluded (sic)
any possibility of accidently activation of the
hydrolic (sic) control levers, shall not be used
to transport crew members, while equipment is
in a traveling motion.
For its relief c6ntestant requests that the subject
safeguard be vacated, or, in the alternative, that it be
granted declaratory relief declaring that the subject nature
to provide saf eguar?s is an improper interpretation of 30
C.F.R. § 75.1403. ~

.!/

An imminent danger order that apparently preceded the
issuance of the instant safeguard notice is pending before the
undersigned judge in Colorado Westmoreland, WEST 88-222-R.
1236

The Secretary has moved to dismiss the notice of contest.
As a grounds therefor the Secretary states the contest herein
fails to state a claim upon which relief can be granted.
Oral arguments were heard on the record on August 31, 1988
in Denver, CoLorado.
Discussion
This is a case of first impression in that contestant seeks
review of a safeguard notice issued under 30 C.F.R. § 75.1403
without any accompanying enforcement action under the Act. ~
The Act provides that an operator may contest an order of
withdrawal issued under § 104, a citation or a penalty assessment issued pursuant to§ 105(a) or 105Cb), or the reasonableness of time fixed for abatement of a citation. However, there
is no statutory authority for an independent review of a safeguard notice prior to the issuance of a citation. To like effect
see Mettiki Coal Corporation, YORK 81-42-R (February 19, 1981),
an unreported decision by Judge James A. Broderick.
Contestant asserts that Mettiki Coal Corporation is not
controlling since declaratory relief was not requested in that
case.
I recognize that the Commission can grant declaratory relief
under appropriate circumstances Climax Molybdenum co. v. Secretary of Labor, 703 F.2d 447. However, declaratory relief cannot
be a vehicle to enlarge jurisdiction.

Contestant also asserts that its options are either to
com?lY with the safeguard notice or receive a citation ~0r its
knowing noncompliance.

2/ The Commission decisions in Southern Ohio Coal Company, WEVA
86-190-R (August 19, 1988)~ Jim Walter Resources, Inc., 7 FMSHRC
493 (April 1985) and southern Ohio coal Co., 7 FMSHRC 509 (1985)
all involve safeguards followed by an enforcement action.

1237

I disagree. Contestant may seek a modification from MSHA
or proceed under Section 101Cc) of the Act.
[See Mid-Continent
Resources, Inc., Docket No. 88-MSA-13, July 19, 1988, Brissenden.
J (attached hereto)].
Finally, contestant asserts the doctrine of pendent jurisdiction is applicable citing United Mine Workers v. Gibbs, 383
U.S. 715, 86 s.ct. 1130, 16 L.Ed. 2d 219 (1966> and Jones v.
Intermountain Power Project, 794 F.2d 546 (10th Cir. 1986)
I agree the federal courts have jurisdiction to exercise
pendent jurisdiction. This power exists when there is a substantial federal claim and when both the state and federal claims
derive from a common nucleus of facts so that plaintiff would
"ordinarily be expected to try them all in one judicial proceeding," 794 F.2d at 549.
While the doctrine might be held applicable here the undersigned Judge does not consider it fairly within the Commission's
statutory grant of authority.
For the foregoing reasons the Secretary's Motion to dismiss
is GRANTED and the contest filed herein is DISMISSED.

Law Judge

Distribution:
Charles W. Newcom, Esq., Sherman & Howard, 633 17th Street,
Suite 3000, 633 17th Street, Denver, CO 80202
(Certified Mail)
Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified
Mail)
/ot

1238

0"•tt- ot Ao••""'~''•'••t- ~•· JuCIQ•·
? , , M•·~ St••"' Su•tf' 6C'~
Sr ir•"t•s.cc C11oto1,..,a 9•10!>

~ECEIVEI

Jut 22 IO 23 A~ 'BB
Ml~E..

SArETY,
AND HEALTH

Jn thP Matter

of

MlD-CO~Tl~EST

RESOrRrES,

CASF: NO:

88-'MSA-13

l~C.

RUtJNC. AND ORDER ON 'MOTlON TO

DlS~lSS

T~is procee:ing arise~ under the fedeTal Mine Safety and Health
A:t of 1ci--;, 30 e.s.c. ~801 !..!. !.!S.,:, (the "Ac:t").
By notice dated
Dece~ber 6, 19~6,
the Mine Safety and Health AdministTation ("MSHA")
ap~lie= a Section 314(b) safeguard (30 C.F.R. §75.1403-S(g)) to
Pet1tioner'Appe1lant Mid-Continent Resources, Inc. ("HCR").
On
fe~ruarv 3. 1C~7, MCR filed a Section lOl(c) petition for
modification o~ the safeguard.
'MSHA then amended the safeguard on
June 11, 19P7.
On December 14, 1987, the Deputy Administrator for
Coal ~!ne Safety and Health dismissed 'MCR's petition for
~ocificati~~.
~CR then requested a hearing pursuant to 30 C.f.R.
~4~.lk, and the Deputy Administrator referred this matter for
hearing by this office on January 21, 1988.

On ~arch 2, 1988, MSHA filed a motion to dismiss this matter
for failure to state a claim upon which relief can be granted,
contending that safeguards imposed under Section 314(b) are Lot
subject to petitions for modification under Section lOl(c).
MSHA
also contends that MCR's petition for modification did not allege
either of the statutory grounds for modification.
MCR filed a reply
to the ~otion on March 23, and MSHA filed·a response to MCR's reply
on March 31, 1988.
~hether Section 314(b) Safeguards .Are Subject to Section lOl(c)
Petitions:

Section lOl(a) of the Ac:t (30 u.s.c. §8ll(a)) provides that
•(t]he Secretary shall by rule •
• develop, promulgate, and revise
as may be appropriate, improved mandatory health or safety standards
for the protection of life and prevention of injuries in coal or
other mines,· and it •ets forth various rulemaking procedures. The
Section lOl(a) standards apply to all mines.
Section lOl(c) (30
u.s.c. §8ll(c)) provides that "(u]pon petition by the operator or
the representative of miners, the Secretary •ay modify the
application of any mandatory safety standard to a coal Qr other mine
.,- and it •et& forth grounds and procedures for •uch
mine-specific modifications.
(.!.!_! ~ 30 C.F.R. Part 44.) Thus,

1239

it 1~
u~der

clear that ~andatory standards promulgated through rule~ak1ng
Sectior lOl(a) may be modified either by further rulemaking
aprlicable to all mines or through Section 10l(c) petitions for
~od1ficat1on by individual mine operators.
Section 314, 30 u.s.c. §874, is part of Title Ill of the Act,
vhich cov~Ts ~Interim Mandatory Safety Standards for Underground
Coal Hines··.
(Section 314 was formerly Section 314 of the Federal
Coal Mine ~ealth and Safety Act of 1969, 83 Stat. 742, 787, P.L.
91-173 (19~Q)).
Section 314 sets forth 1afety requirements for
-hoisting and msntrips'.
Tn addition, Subsection (b) provides that
· !olther safeguards adequate, 1n the judgment of an authorized
represente:fve of t-he Secretary, to m1n1~1ze hazards with respect to
transportation of men and materials shall be provided."
Provisions
for the pro~ulgation of such safeguards by MSHA inspectors
(aut~orized represi~tstives of the Secretary) on a ·mine-by-mine"
basis are set fort!-. at 30 C.F.JL ~?S.1403 .!.!. ~ lt is clear that
Section 3l~(b) safeguards may be modified by MSHA inspectors on
their o~~ 1n1~iat1ve.
1 must determine whether the safeguards are
&lso subje~t to Section lOl(c) petitions for modificatio~ by mine
operators like MCR.
!i~s: argument in support of its motion to dismiss is
another procedure by which mine operators may challenge
~a!eguards already exists.
Citing Secretary of ~abor (MSHA) v.
Southern Ohic Coal Co .• 7 FMSHRC 509, 3 MSHC (BNA) 1743 (1985), and
~e:retary of Labor (MSHA) v. Jim Walter Resources, Inc., 7 FMSHRC
'93, 3 ~SHC (B~A) 1739 (1985), MSHA points out that operators may
cha!lenge the application of safeguards in proceedings before the
Federal Mine Safety and Health Commission (the "Commission·), which
has ju~isciction over contested violations of standards and
safeguards.
MSHA argues that there is therefore no need also to
per~it
Section lOl(c) petitions.
Further, permitting challenges to
safeguards both through proceedings before the Commission and
throug~ Section 101Cc) petition proceedings could cause duplicative
efforts and conflicting rulings.
~SHA"s

tha~

MSHA's second argu~ent involves the purpose of Section 314(b)
and regulations thereunder.
MSHA notes that Section 314(b)
5afeguards may be imposed on individual mines and modified or
~ithdrawn by MSHA inspectors without resort to rulemaking procedures
much as those set forth in Section lOl(a).
Thus, according to MSHA,
Congress intended to enable MSHA inspectors to respond flexibly and
quickly to unsafe conditions at particular mines without the
necessity of Section 101-type procedures.
MSHA argues that
permitting Section 10l(c) petitions for modification of Section
316(b) aafeguards would interfere with that flexibility.
In response to MSHA's first argument, MCR point• out that
Commission review of Section 314(b) aafeguards is actually only
available after a safeguard has been violated, and violation of a
safeguard subjects an operator to potential civil and criainal
penalties under Section 110 (30 u.s.c. §820).
(See, .!...:.I..:.• u.s.
Steel Corp., 3 FMSHRC .2540 0 2 MSHC ('BNA) 1583 (1981)).
ln other
words, Commission Teview is not equivalent to Section lOl(c)

1240

retitton procedures.
Jn fact, in Southern Ohio Coal Co. and~
~altrr Rrsourc•s, lnc., aupra, th• Commission actually interpreted a
saf•guard for the purpose of determining whether certain operators
had violat•d the aafeguard; th• CommSaaion did not permit the
op•rators to challenge or request aodification ~the •afeguard
its•lf.
Jn

respon~e

to MSHA's ••cond argument, MCR contend& that the
broad grant of power to HSHA in&pectors to 1mpoae Section
314(b) saf•~uards without the necessity of rulemaking procedures
actually means that the aafeguard& ahould be easier to challenge
than Section lOl(a) standard$. (See Southern Ohio Coal Co., supra,
at p;-. 511-12.) According to MC~the broadeT the grant of power,
the more checks on that power should be provided. · MCR. also argues
that bv 1ts word1nF. Section lOl(c) applies to ·any aandatory safety
stanca!"o··, a""ld Section 314(b) safeguards aTe just as •andatory as
sta""ldarcs pro~ulgated under Section lOl(a) because both are enforced
in the sa~e manner under Sectio~s 104 and 110 (30 u.s.c. §§814,
s:~).
(3r r.s.c. ~846; See Southern Ohio Coal Co., supra, at
r. 5: :! . )
un~sually

l

arguments persuasive. There is no doubt that the
law judges under the Commission) has
jurisdiction over contested violations of safety standards, while
the Secretary (and this office) has jurisdiction over petitions for
:ocification of those standards.
(See Johnson, "The SplitE n force~ e., t ~ode 1 ·· , 3 9 Ad re . L. Rev • 3T"S"":' 31 6 , 31 9 n • l 3 , 3 4 1 (Summer
1987)).
~SHA has not shown that there is any basis for making an
exceptio~ to the above jurisdictional scheme for Section 314(b)
safeguards, w~ich are a special type of safety standards.
The
Co~~issio~ may have jurisdiction to interpret Section 314(b)
safeguards that roay have been violated, but unlike the Secretary. it
does not have the power to modify inappropriate safeguards.
Accordingly, 1 find that 1 have jurisdiction over MCR's petition for
modification of the Section 314(b) safeguard at issue (30 C.F.R.
§75.1403-S(g)), and MSHA's motion to dismiss on the basis of lack of
jurisdictio~ is therefore denied.
fine

Co~=issiCI~

~CR's

(a~d

ad~inistrative

Sufficiency of Pleadings:
As stated above, MSHA has also •oved to dismiss on the basis of
MCR's failure to allege either of the statutory grounds for
modification in its petition. Pursuant to Section lOl(c) and 30
C.F.R. §'4.4 1 the grounds for •odification are: 1) there exists an
alternative method of achieving the result of the aafety atandard or
aafeguard at issue, or 2) the application of the standard at issue
vill result in a diminution of aafety.
My own examination of MCR's
petition reveals that it alleged facts intended to aupport the
aecond ground for modification at Paragraph 7 and the firat ground
at Paragraph 9.
Accordingly, MHCA's •otion to dismias on the basis
of the insufficiency of MCR's pleadings 1• denied.

1241

RlSStNDEt\
strative Law Judge

t>ated:

JU~ 1 9 19E9

San francisco, California

1242

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

SEP 151988
DISCRIMINATION PROCEEDING

ARTHUR BROWNING,
Complainant

v.

Docket No. KENT 88-132-D
BARB CD 88-14

NALLY & hAMILTON ENTERPRISES,
Respondent

Gray's Ridge Job

ORDER OF DISMISSAL
Before:

Judge Maurer

The Complainant, by counsel, requests approval to
withdraw his complaint in the captioned case on the grounds
that the parties have reached a mutually agreeable settlement.
Under the circumstances herein, permission to withdraw is
granted.
29 C.F.R. § 2700.11. The case is therefore
dismissed, with prejudice, as requested by the parties; and
the hearing set for September 16, 1988, in Lexington,
Kentucky is cancelled.

ll/CIMNW'

aurer
rative Law Judge
Distribution:
Lloyd R. Edens, Esq., Cline & Edens, P.O. Drawer 2220,
205 N. 20th Street, Middlesboro, KY 40965 (Certified Mail)
Robert A. Thomas, Esq., 114 First Street, Box 923, Harlan,
KY 40831 (Certified Mail)
slk

1243

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

SEP 151988
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA} ,
ON BEHALF OF
GEORGE S. JOHNSON,
LOUIS JOHNSON, JR.,
ARNOLD J. RASBERRY,
BOOKER T. WARE, JR.,
Complainants

Docket No. SE .86-108-D
BARB CD 86-31
No. 3 Mine

v.
JIM WALTER RESOURCES, INC.,
Respondent
ORDER OF DISMISSAL
Before:

Judge Maurer

The Stay Order dated December 5, 1986, as modified
on August 7, 1987, is hereby lifted.
The pleaded facts involved in this case are essentially
the same as those in Secretary of Labor, ex. rel. Beavers,
et al. and UMWA v. Kitt Energy Corporation, 10 FMSHRC 861
(July 15, 1988). Therein, the Commission reversed my decision
below and found that this set of facts did not violate
section 105(c) of the Mine Act, 30 u.s.c. § 815(c). The
Secretary has not taken an appeal from that decision.
The parties to this proceeding agree and I concur
that on the facts of this case, its outcome is controlled
by Kitt Energy Corporation, supra.
Accordingly, respondent's letter-motion of July 22, 1988,
to dismiss this case is granted and this proceeding is dismissed
in accord with controlling Commission precedent.

Ro
Aamin

1?44

hli~

rer
tive Law Judge

Distribution:

w.

Frederick
Moncrief, Esq.,. Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd~., Arlington, VA 22203
(Certified Mail)
David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.C.,
12th Fl., Watts Bldg., Birmingham, AL 35203 (Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th
St., N.W., Washington, D.C. 20005 (Certified Mail)
slk

1245

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

SEP 161988
CONSOLIDATION COAL COMPANY,
Contestant
v.

CONTEST PROCEEDING
Docket No. WEVA 88-348-R
Order No. 2946760; 8/12/87

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

Shoemaker Mine

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 88-74
A.C. No. 46-01436-03708
Shoemaker Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

B. Anne Gwynn, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania,
for the Secretary; Michael R. Peelish, Esq., Pittsburgh, Pennsylvania, for Consolidation Coal Company
(Consol)

Judge Broderick

STATEMENT OF THE CASE
In the contest proceeding, Consol challenges the order of
withdrawal issued under section 104Cd)(2) of the Act on
August 12, 1987, alleging an unwarrantable failure violation of
30 C.F.R. § 75.200. In the penalty proceeding, the Secretary
seeks a civil penalty for the violation charged in the contested
order. The cases were ordered consolidated for the purposes of
hearing and decision in my prehearing order issued February 24,
1988. Pursuant to notice the cases were called for hearing in
Wheeling, West Virginia on June 23, 1988. Lyle Tipton,
Howard Snyder, and Keith Daniels testified on behalf of the
Secretary. Michael Blevins, Michael Yarish, Larry Dow, Dave
Hudson, and Lloyd Behrens testified on behalf of Consol. Both
parties have filed post hearing briefs. I have considered the

1246

entire record and the contentions of the parties in making this
decision •.
FINDINGS OF FACT
At all times pertinent to this proceeding Consol was the
owner and operator of an underground coal mine in Marshall
County, West Virginia, known as the Shoemaker Mine. During the
year 1986, the subject mine produced 2,334,000 tons of coal.
During the twenty four months prior to the date the contested
order was issued, 595 violations were assessed and paid, having
been charged during 717 inspection days. Eighty six were
violations of 30 C.F.R. § 75.200, four were of § 75.202. This
means there were more than eight violations in every ten
inspection days, including almost 1.3 roof control violations. I
consider this a significant history of prior violations. A
withdrawal order was issued under section 104(d) on August 28,
1986, and there was no intervening clean inspection between that
date and the date of the order contested herein.
MAINLINE HAULAGEWAY
The mainline haulage was originally developed many years ago
beginning at the River portal. The River portal is now the area
from which coal is moved to the outside of the mine. The coal is
transported in coal cars (normally forty five 20 ton cars) with
two locomotives, one in front and one in the rear. The
locomotives weigh approximately 50 tons each. Each locomotive
has one operator who sits on the trolley wire side (or "tight
side") of the locomotive. The locomotives are electrically
powered by an overhead 250 volt D.C. uninsulated wire. On a
typical day, the motors travel through the mainline haulage every
10 to 15 minutes. There is a water line and a high voltage
transmission cable paralleling the trolley wire and water sumps
throughout the area. The area is required to be examined before
each shift or three times in a 24 hour period. There is a high
velocity of air, approximately 180,000 cubic feet per minute in
the mainline haulage. This causes deterioration of roof and ribs
especially in the summer months. The roof was initially
supported in large part by planks, through which three roof bolts
were inserted. The planks were installed on five foot centers.
Additional supports were installed at crosscuts only if the roof
showed need for such supports. The crosscuts had previously been
driven, and the coal removed. The roof had fallen on many but
not all of the crosscuts. It was not Consol's practice, and
there was no requirement in its roof control plan that bolts or
other roof supports be installed ~here the crosscuts intersected
the mainline haulageway.

1247

103(g) COMPLAINT
On July 21, 1987, mainline motorman, Bill Whitlatch,
reported to ·union safety committeeman Howard Snyder and Consol
foreman, Mike Yarish, that a rock had fallen on a crib "inby the
passway." Snyder and Yarish went to the area. The rock was
hanging over the crib leaning toward the track. Yarish said he
would have to shut down the haulage to take down the rock and he
decided to have it done during the next weekend. However, when
Snyder returned to work the following Monday he was told by the
foreman who had worked on the weekend that the crib felt tight
and he did not see any reason to take it down. Snyder reported
this to Yarish. Yarish told yet another foreman to take care of
it the following weekend. The following Monday, Snyder saw that
the condition was not corrected. He contacted the other safety
committeemen who submitted a 103(g) complaint to federal mine
Inspector Tipton on August 12, 1987. The complaint requested an
investigation of "bad roof conditions along main line haulage
that were reported to management." In addition to the complaint
related to the rock fall on the crib, on several occasions during
the weeks preceeding August 12, 1987, Snyder told Yarish about
areas of unsupported or inadequately supported roof in the
mainline haulage.
INSPECTION AND WITHDRAWAL ORDER
On August 12, 1987, Inspector Tipton came to the subject
mine to perform a regular inspection. He was given the 103(g)
request by Keith Daniels. He proceeded to an area of the
mainline haulage from the Whittaker Portal to the River Portal,
accompanied by mine foreman Larry Dow and chairman of the mine
safety committee Keith Daniels. The inspector cited four areas
of what he considered inadequately supported roof and issued the
contested withdrawal order.
a) The first area cited by Inspector Tipton was three
blocks outby the top end of the number ~ix passway. The
inspector determined that because there was an area of eight
feet, four inches between cribbing supports, and no supports were
installed between the trolley wire and the rib line, the roof was
not adequately supported. Consol's representative who
accompanied the inspector did not disagree with ~he inspector's
findings, but was of the opinion that the area wa3 adequately
supported.
b) The next area cited was one block further outby. The
crosscut had fallen in. There was cribbing in the area, but the
inspector measured 12 feet between cribbing or breaker supports.
Consol's representative did not disagree with the measurements

1248

and concluded that the inspector was not satisfied with the
distance between cribs.
c) The third area cited was at a crosscut further outby.
There was an area of eight feet, by seven feet on each side of a
crib which was unsupported. There was also a large rock which
had fallen on a crib dislodged from the roof at the edge of a
crosscut which had fallen in.
d) The fourth location cited was at a crosscut two blocks
inby the inby end of the number one passway. Crib supports were
12 feet apart with the unsupported roof extending into the
trolley wire entry. There was a dislodged crib in the center of
the opening with a large rock balanced on top of it almost
directly over the high voltage transmission cable, the water
line, and the trolley wire. The rock was on the edge of the crib
and a failed roof bolt hung from the roof into the rock.
The inspector considered that the roof was not adequately
supported in the cited areas to protect persons from roof falls.
He determined that the violation was significant and substantial
and was caused by the unwarrantable failure of management to
comply with the standard. The condition was abated the same day
by the installation of additional cribs and, in the third area,
of additional roof bolts. One new crib was installed in the
first location, two in the second and three in the third. In the
fourth location, after the rock was removed, additional cribbing
was added to the middle crib.
I find as facts that the roof conditions in the areas cited
by the inspector were essentially as he described them, including
the areas he measured between cribs and other roof supports. His
testimony was corroborated by his contemporaneous notes and by
the testimony of the union safety committee chairman Keith
Daniels. The testimony of Consol's representative who
accompanied the Inspector did not contradict his factual
findings.
ISSUES
1. Whether the roof in the areas cited in the mainline
haulageway was adequately supported to protect persons from roof
falls?
2.
If a violation is found, was it significant and
substantial?
3. If a violation is found, was it caused by Consol's
unwarrantable failure to comply?

1249

4.
If a violation is found, what is the appropriate
penalty?
CONCLUSIONS OF LAW
JURISDICTION
Consol was at all times subject to the provisions of the
Federal Mine Safety and Health act, and I have jurisdiction over
the parties and subject matter of this proceeding.
VIOLATION
There was testimony both by government witnesses and Consol
witnesses concerning the spacing of the crib supports. There was
some indication that the Inspector required such supports on five
foot centers, and that he followed an MSHA policy which required
roof supports in all crosscuts along haulageways. The order,
however, charges Consol with failing to provide adequate roof
support. The Inspector explained that a roof fall in a cross cut
(expected) will continue across the haulageway unless cribs or
other supports are placed at the edge of the crosscut. Failure
to install such supports renders the haulageway roof inadequate.
I concur in the inspector's analysis, and conclude that the areas
of unsupported roof in the four cited area were such as to render
the roof inadequately supported to protest persons from roof
falls .• The two areas where rocks had fallen on dislodged cribs
were obviously inadequately supported on that basis alone. I
conclude that the order properly charged a violation of 30 C.F.R.
§ 75.200.
SIGNIFICANT AND SUBSTANTIAL
A violation is properly designated significant and
substantial if it contributes to a safety hazard which will
reasonably likely result in a serious injury. Cement Division,
National Gypsum, 3 FMSHRC 822 (1981); Mathies Coal Co., 6 FMSHRC
1 (1984). The area involved here was heavily travelled. The
locomotives and coal cars cause considerable vibration. The area
of unsupported roof was substantial and adjacent to crosscuts
which had fallen in or were expected to fall in. A roof fall in
one of the cited areas was reasonably likely, as was the fall of
the large rocks poised on the cribs. All such falls would be
reasonably likely to result in serious injuries. A roof fall
could directly injure miners travelling the area (examiners,
pumpers); it could fall on the track and cause a derailment; it
could fall on a power line and result in a mine fire. The
violation was properly denominated significant and substantial.

1250

UNWARRANTABLE FAILURE
Unwarrantable failure means "aggravated conduct,
constituting more than ordinary negligence, by an operator in
relation to a violation of the Act." Emery Mining Corp., 9
FMSHRC 1997, 2010 (1987); Youghiogheny & Ohio Coal Co., 9 FMSHRC
2007 (1987).
In this case, Consol had been notified of the rock
fallen on the crib on July 21. Consol's foreman said he would
have it removed on the weekend. He did not do so. He was
reminded of it the following week, but still did not have it
removed. A 103(g) complaint was filed with the federal inspector.
With respect to the general condition of the roof in the areas
cited, there is disputed testimony as to whether the condition
was obvious and known to Consol. The area was examined once each
shift, or three times per working day. The inspector's
contemporaneous notes state that "the violations were so obvious
they jumped out at you when you ride past so nobody could have
examined this haulage on a daily basis and not see these
crosscuts were falling out in to the track entry." Consol's
witnesses testified that the roof condition in the haulageway was
stable and adequately supported. However, with respect to the
rock on the dislodged crib, there is no genuine dispute. Consol
knew of the condition. The condition was hazardous. Consol was
guilty of aggravated conduct constituting more than ordinary
negligence in failing to correct the condition between July 21
and August 12, 1987. The violation was due to Consol's
unwarrantable failure to comply.
CIVIL PENALTY
Consol is a large operator, with a significant history of
prior violations at the subject mine. The violation was serious,
and caused by Consol's ag3ravated negligence. It was promptly
abated in good faith.
Based on the criteria in section llO(i) of
the Act, I conclude that an appropriate penalty for the violation
is $1000.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Order No. 2946760 issued August 12, 1987, including its
findings that the violation was significant and substantial and
caused by unwarrantable failure is AFFIRMED. The Notice of
Contest is DISMISSED.

1251

2. Consol shall within 30 days of the date of this order
pay a civil penalty in the amount of $1000 for the violation
found.

~ RSVlX!iv:e.L

j

James A. Broderick
Administrative Law Judge

Distribution:
Michael Peelish, Esq., Consolidation Coal Co., Consol Plaza,
Pittsburgh, PA 15241 (Certified Mail)

B. Anne Gwynn, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
slk

1252

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
12~4 ~PFER ROlJI EVARD

;.,c··w '.'80

SEP 161988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 87-108-M
A.C. No. 26-00457-05507
Gibson Road Pit and Mill

v.
ARC MATERIALS CORPORATION WMK TRANSIT MIX,
Respondent

Docket No. WEST 88-8-M
A.C. No. 26-00458-05508
Buffalo Road Pit and Mill

DECISION
Appearances:

Jonathan s. Vick, Esq., Office of the Solicitor,
U.S. Department of Labor, Los Angeles, California,
for Petitioner;
Ralph Kouns, Safety Director, ARC Materials
Corporation, Las Vegas, Nevada.

Before:

Judge Lasher

This matter arises pursuant to Section llOCa) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. Section 820{a)
{herein the Act). Petitioner seeks assessment of penalties for 2
violations- both of which are conceded by Respondent-- which are
cited in 2 Citations Cone in each docket). These two dockets
were consolidated for hearing and decision by Notice dated March
22, 1988. Both Citations, issued under Section 104{a) of the
Act, charged Respondent {ARC) with infractions of 30 C.F.R.
§ 56.14001, pertaining to "Guards" and entitled "Moving Machine
Parts", which provides:
Gears; sprockets; chains; drive, head, tail, and takeup
pulleys; flywheels; couplings; shafts; sawblades; fan
inlets; and similar exposed moving machine parts which
may be contacted by persons, and which may cause injury
to persons, shall be guarded.
The Citations were issued by MSHA Inspector Earl w. McGarrah
on different inspection dates and at the two mines reflected in
the caption. Both Citations charged guarding violations involving tail pulleys and also alleged that the violations were
so-called "Significant and Substantial" violations.
Issues
ARC concedes the existence of the occurrence of the violative conditions charged and described in both Citations. ARC

1253

contends, however, with respect to both violations that it was
not "reasonably likely" for the potential hazard created by the
violative conditions to have occurred and to have resulted in
injuries to any of its employees (miners). See Stipulation,
Court Ex. 1. In the context of this proceeding, the concept of
"reasonable likelihood" applies to and affects two aspects of
each violation; first, as part of the consideration of the
mandatory penalty assessment factor of gravity 1/, and, secondly,
as one of the elements of proof required in "significant and substantial" violations.
General Findings.
Respondent ARC, at the times material herein, owned and
operated a "ready-mix" sand and gravel operation with 3 pits- two
in Nevada, the Gibson Road and Buffalo Road pits involved here
and a third pit at Bullhead, Arizona.
Respondent's payroll at
the time of the violations and also at the time of hearing
approximated 150 employees CT. 76-78, 83).
During the 2-year period prior to the commission of the
violation charged in Citation No. 2671967, ARC had a compliance
history of 19 prior violations at the Gibson Road Pit operation,
8 of which were guarding violations CT. 25).
During the 2-year period prior to the commission of the
violation charged in Citation No. 2669032, ARC had a compliance
history of 27 prior violations at the Buffalo Road Pit operation,
9 of which were guarding violations CT. 94-95).
After receiving notification of the violations charged in
the two subject Citations, ARC demonstrated good faith in
attempting to achieve rapid compliance with the regulations
violated (Court Ex. 1).
The penalties herein assessed will not jeopardize ARC's
ability to continue in business (Court Ex. l; T. 15).
A. Docket No. WEST 87-108-M
Citation No. 2671967, issued December 16, 1986, by MSHA
Inspector McGarrah, in Section 8 thereof, charges:

1/ On the face of the Citations, under Section 10 A thereof
ielating to "gravity", the Inspector checked the "Reasonably
Likely" box indicating that an "injury or illness" would be
reasonably likely to result from the violations. Box lOC was, as
above noted, checked on both Citations indicating that the
Inspector felt both violations were "Sigriificant and Substantial."

1254

The tail pulley on the west side feeder conveyor belt was
not guarded. The pinch point was located about ground
level where it could be contacted by a person and cause a
serious injury.
At the time this violation was observed, the plant was not
operating (T. 53, 65-66, 72, 92). The Inspector was unable to
ascertain how long the guard, which he observed against a wall
nearby, had been off (T. 34, 36, 63). The Inspector believed a
laborer had told him the guard had been removed for "cleanup" and
not been put back on (T. 36-37). The circumstances surrounding
the removal of .the guard and the timing thereof in relation to
the shut-down of the plant were not ascertainable (T. 34-38, 63). ·
There is no basis to inf er that the guard would not have been put
back prior to resumption of the plant's operation.
A person walking on the walkway alongside the pinch point
would have been within 10 to 12 inches of the pinch point (T. 60).
The hazard created by the unguarded self-cleaning tail
pulley in question was of a person having their clothing caught
and being pulled into the pulley (Ex. M-6; T. 30, 40, 61), or of
slipping and falling into it or the pinch point (between the
bottom of the conveyor belt and pulley itself). The unguarded
pulley was in an area where employees could be expected and would
have a reason to be working (T. 42-46, 47, 62, 66). Four or five
employees would have been exposed to the hazard (T. 51, 66, 72).
Since the circumstances causing and surrounding the violation are not known it is concluded that it was not reasonably
likely that the hazard envisioned by the Inspector would have
occurred (T. 34-38, 89-90; Ex. M-6) even though reasonably
serious or even fatal injuries could have resulted therefrom CT.
67-69) had the hazard come to fruition.

B. Docket No. WEST 88-8-M
Citation No. 2669032, issued May 19, 1987, in Section 8
thereof, charges:
The tail pulley was not guarded on the type two seperator
south dual conveyor belt at the dry plant.
The pulley
could be contacted by a person and could cause an injury.
The tail pulley in question (depicted in Ex. M-12) was also
adjoined by a walkway which would have been traveled frequently
by employees (T. 97-98, 101). Inspector McGarrah testified that
the walkway was a foot or more from the tail pulley and, with
respect to the hazard created thereby, that "a person could be
walking along this walkway with those raw material and rocks
laying on it and could twist his ankle and fall into the tail
pulley or slip and get a foot or something over into it." (T. 98).
The hazard posed is similar to that described in connection with
Citation No. 2671967 hereinabove.
1255

Four to six employees would have b.een exposed to the hazard
CT. 101}.
The plant was running on the day this violation was observed
CT. 110-111). Inspector McGarrah testified that he was told by a
laborer on the day the Citation was issued that "the guard had
been taken off and hadn't been put back on" CT. 111). As with
the prior Citation, the actual circumstances surrounding the
commission of the violation and the length of time the guard was
removed is not subject to determination.
The record does indicate that it was reasonably likely that
the hazard envisioned by the Inspector would have occurred CT.
98, 99, 101-102, 105-106, 109) and that such would have resulted
in the occurrence of reasonably serious injuries CT. 98, 105-106,
109).
Discussion
In Secretary v. Texasgulf, Inc., 10 FMSHRC 498 (April 20,
1988), the Commission reaffirmed its long-standing analytical
formula for "significant and substantial" questions stating:
Section 104(d)(l) of the Mine Act provides that a violation
is significant and substantial if it 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." 30 U.S.C. § 814(d)(l). A violation is properly
designated significant and substantial "if, based on the
particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum, 3 FMSHRC 822,
825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984) the Commission explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum, the Secretary ••• must prove: (1)
the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard -- that is, a measure of
danger to safety -- contributed to by the violation; C3)
a reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably
serious nature.
The Commission has explained further that the third element
of the Mathies formulation "requires that the Secretary
establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August

1256

1984) (emphasis deleted). We have emphasized that, in accordance with the language of section 104CdlCl), 30 u.s.c.
§ 814Cd>Cl), it is the contribution of a violation to the
cause and effect of a hazard that mrist be significant and
substantial. Id.
In addition, the evaluation of reasonable
likelihood should be made in terms of "continued normal
mining operations." U.S. Steel Mining Co., Inc., 6 FMSHRC
1573, 1574 (July 1984).
With respect to Citation No. 2671967, the Inspector conceded
that the plant was not running at the time of his inspection and
at the time the Citation was issued. Since it was not ascertainable how long the guard had been removed and the circumstances of·
its removal are unknown, in the context of the plant's being shut
down it would be pure speculation to conclude that Cl> there
there was a reasonable likelihood that the hazard contributed to
would result in an injury or (2) that ARC was negligent in the
commission of this violation. This is not found to be a significant and substantial violation.
In all the circumstances, this
is found to be a moderately serious violation as to which there
is no evidence of negligence on the part of the mine operator. A
penalty of $100.00 is found appropriate.
As to Citation No. 2669032, the record supports, and I have
previously found the factual underpinnings for, the application
of the Commission's Texasgulf formula.
This violation is thus
found to be significant and substantial. Since several employees
would have been exposed to the hazard created by the violation,
and since reasonably serious injuries could be expected to have
been incurred had the hazard come to fruition, this is found to
be a moderately serious violation. While this infraction
occurred while the plant was in operation, there again was no
basis for concluding that the mine operator was negligent.
Weighing these factors in conjunction with lhe previous findings
as to the operator's size, good faith in abatement and compliance
history, a penalty of $125.00 for this violation is found and
appropriate.
ORDER
Citation No. 2671967 in Docket No. WEST 87-108-M is modified
to delete the "Significant and Substantial" designation thereon.
Respondent shall pay the Secretary of Labor the total sum of
$225.00 as and for the civil penalties above assessed for the two
violations on or before 30 days from the date of this decision.

#:" Ue<~
/. 1·. Cld
j?;;..

/_~ _,,// ,ff

;Y-tr7f~ _. /.~

Michael A. Lasher, Jr.
Administrative Law Judge

1257

Distribution:
Jonathan S. Vick, Esq., Office of the Solicitor, U.S. Department
of Labor, 32~7 Federal Building, 300 North Los Angeles Street,
Los Angeles, CA 90012 (Certified Mail)
Mr. Ralph Kouns, Safety Director, ARC Materials Corporation - WMK
Transit Mix, P.O. Box 14697, Las Vegas, NV 89114 (Certified
Mail)

/bls

1258

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

SEP 20\988
CONTEST PROCEEDINGS

DAKCO CORPORATION,
Contestant

v.

.

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

Docket No. WEVA 87-333-R
Citation No. 2894879; 7/31/87
Docket No. WEVA 87-334-R
Citation No. 2902509; 7/29/87
Martinka No. 1 Mine
Mine ID 46-03805 HIV

DECISIONS
Appearances:

Ross Maruka, Esq., Fairmont, West Virginia, for
the Contestant;
Mark D. Swartz, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern Notices of Contests filed by
the contestant pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977, challenging the legality of two
section 104(a) citations, with special "significant and substantial" CS&S) findings, issued at the mine by MSHA inspectors on July 29 and 31, 1987. The citations were issued
because of the alleged failure by the contestant to provide
training for one of its employees who was performing work at
the mine preparation plant, and its failure to have available
at the mine training records for seven employees who were also
performing work at the plant.
The contestant stipulated that as of July 31, 1987, the
cited employee had not received the twenty-four (24) hour new
miner training specified at 30 C.F.R. § 48.25, and that on or
before July 29, 1987, it did not have training certificates or
other records required by 30 C.F.R. § 48.29(a), certifying
that seven of its employees working at the preparation plant

1259

had completed MSHA's approved training program. Contestant's
defense is that the employees in question were construction
workers performing construction work, rather than maintenance
or service work, and were therefore excluded from the def inition of "miners" found in section 48.22 for the purposes of
MSHA's cited mandatory training standards. MSHA takes the
contrary position, and asserts that the employees in question
were performing repair and maintenance work for frequent or
extended periods of time, and were regularly exposed to safety
hazards at the preparation plant. Under these circumstances,
MSHA asserts that the employees were in fact "miners" within
the regulatory definition, rather than "construction workers,"
and were therefore required to take the training mandated by
its regulations.
Applicable Statutory and Regulatory Provisions
30

1.

The Federal Mine Safety and Health Act of 1977,

2.

Sections 104(a) and 105Cd) of the Act.

3.

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

u.s.c. § 301, et seq.

4. Mandatory training standards 30 C.F.R. § 48.25 and
48.29Ca).
Issues
The critical issue in this case is whether or not the
contestant's.employees are "miners" subject to MSHA's training
requirements as that term is defined by 30 C.F.R.
§ 48.22(a)(l).
If they are, the additional issues are Cl)
whether the cited violations occurred, and whether or not they
were "significant and substantial" CS&S).
Stipulations
The parties stipulated to the following (Exhibit J-li Tr.
13-15):
1. Dakco Corporation is subject to the
jurisdiction of the Federal Coal Mine Safety
and Health Act of 1977, Public Law 91-173, as
amended by Public Law 95-164 (Act).
2. The Administrative Law Judge has
jurisdiction over this proceeding pursuant to
section 105 of the 1977 Act.

1260

3. Dakco Corporation employees were doing
work at the preparation plant of the Martinka
No. 1 Mine during the period from May through
August 1987.
4. On and before July 29, 1987, Dakco
Corporation did not have training certificates
or other records certifying that seven (7) of
its employees working at the Martinka No. 1
Mine preparation plant had completed the MSHA
approved training program. The seven (7)
employees had not been trained as of July 29,
1987.
5. Victor Wilson was a Dakco Corporation
ironworker working at the preparation plant at
the Martinka No. 1 Mine during July 1987.
6. As of July 31, 1987, Victor Wilson had
not received the twenty-four (24) hour new
miner training which is specified at 30 C.F.R.
§ 48.25.
7. Dakco Corporation was issued section
104Ca> Citation No. 2902509 on July 29, 1987
and section 104Ca> Citation No. 2894879 on
July 31, 1987.
8. The parties stipulate to ~he
authenticity and admissibility of the following
documents:
a. A Copy of section 104Ca)
Citation No. 2902509 issued by
inspector Alex Volek on July 29,
1987.
b. A copy of section 104Ca)
Citation No. 2894879 issued by
inspector Edwin W. Fetty on July 31,
1987.

1261

Discussion
The contested citations in issue in these proceedings are
as follows: : ;
DOCKET NO. WEVA 87-333-R
Section 104(a) "S&S" Citation No. 2894879, issued on
July 31, 1987, cites an alleged violation of mandatory training standard 30 C.F.R. § 48.25(a), and the cited condition or
practice is described as follows:
Victor Wilson, ironworker, has been
assigned work duties consisting of maintenance
and repair work in and around the preparation
plant, not provided with che required training.
A 104(g)(l) order (no. 2894880} will be
issued in conjunction with this citation. Don
Keffer is the responsible foreman.
DOCKET NO. WEVA 87-334-R
Section 104(a) "S&S" Citation No. 2902509, issued on
July 29, 1987, cites an alleged violation of mandatory
training standard 30 C.F.R. § 48.29(a}, and the cited condition or practice is described as follows:
"A copy of the
records of training were not available at the mine site for
seven of the 28 employees performing maintenance and repair
work on the preparation plant."
Respondent's Testimony and Evidence
Albert H. Kirchartz, testified that he is employed by the
Southern Ohio Coal Company at the Martinka No. 1 Preparation
Plant as a plant mechanic on the midnight shift and also
serves as a safety committeeman for UMWA District 31, Local
1949. He confirmed that he performs work in all areas of the
plant, including the adjacent loadout, raw coal silos, and
dump, and that his work includes the changing out of screens,
complete units, pipework, and the repair and replacement of
chutes. He explained the purpose of the preparation plant,
and confirmed that the coal which is processed by the plant
comes from the Martinka No. 1 Mine located approximately

*/

Although the parties have characterized the contested

~iolations as "orders," and they have been described as such

in the files, they are in fact "citations."

1262

250 yards from the plant. He also identified and explained
the equipment located inside the plant, and confirmed that
approximately 16 employees normally work inside the plant on
each of three shifts (Tr. 23-30).
Mr. Kirchartz stated that he worked at the plant from May
through August, 1987, and was present during the July 25
through August 7, 1987 vacation period. He also stated that
employees of the Dakco Corporation were in the plant for
approximately 6 weeks, from May until "maybe a month after the
vacation period." He believed that these employees worked in
the plant from the 3 day Memorial Day period, and intermittently from that time through the vacation period from July 25
to August 7, and for approximately a month after vacation. He
stated that the employees worked the day shift, starting at
7:00 a.m., and he would observe them coming in and starting to
work, including periods when the plant was in operation (Tr.
30-32).
Mr. Kirchartz described the work being performed by the
Dakco employees, and it included the removal and replacement
of coal screens, the removal of handrails and the plant building siding, the removal and installation of new coal chutework, and the removal and replacement of the piping associated
with the screens. He confirmed that Southern Ohio employees
had previously performed some of this same type of work (Tr.
34-36).
Mr. Kirchartz stated that the preparation plant was in
operation during the vacation period from July 25 through
August 7, and that the midnight shift of July 25 "ran filter
cake." He served as the tipple attendant and had to insure
that all of the material was going through the chutes to the
loading bins to be hauled away by trucks. He also worked in
the plant control room the following day running the plant.
Southern Ohio employees were also present in the plant during
this time operating or testing equipment, and he observed
people removing screens from the eighth floor of the plant
(Tr. 37-38). He confirmed that all employees working in the
plant, including Dakco employees, would have occasion to go to
the plant control room to lock out equipment and tag it out
while they were working on it, and although no coal was being
processed through the plant at this time, he believed that
"there was as many hazards at that time or just as many as
with the coal being run through it" (Tr. 39).
Mr. Kirchartz described the types of hazards presented in
the preparation plant during the vacation period when no coal
was being processed, including potential fire hazards from the

1263

use of oxygen and acetylene tanks and welding work, running
belts, hoisting hazards, electrical lock-out hazards, slip and
falls, blocked escapeways, noise, coal dust accumulated on
structural ·beams and the chutes, and the presence of a
5,000 gallon caustic soda tank located adjacent to a loading
crane (Tr. 41-49).
In addition to the aforementioned hazards, Mr. Kirchartz
believed that Dakco employees would also be exposed to hazards
associated with methane from the coal accumulated in the
chutes and storage areas, the elevator hoist area used to
carry men and small equipment, which was not always chained
off, a warning light on the hoist which was not being used,
tie-lines associated with the removal of the plant siding, and
the old deteriorated screen framework and chutes which were
being removed (Tr. 51-55). Mr. Kirchartz also confirmed that
there were no barriers separating the work areas of Dakco
personnel and Southern Ohio personnel. He also confirmed that
the reason Dakco was doing the work during the 2-week period
the mine was down was due to the scope of the work, which
entailed the removal and replacement of a number of screens,
and this work could not be performed during this time by
Southern Ohio employees (Tr. 57).
On cross-examination, Mr. Kirchartz agreed that the
previous work performed by Southern Ohio employees in the
plant with respect to the screens was not ot the magnitude or
volume that was being done by Dakco during the vacation period.
He also agreed that Dakco's work was performed on the third,
eighth, and ninth floors of the plant, and it entailed the
gutting, removal, and replacement of chutes, and screens, and
tying the new ones into the old workings where necessary, and
that any "repairing and patching" work was a necessary and
integral part of the overall removal and installation work
<·rr. 60 > •
Mr. Kirchartz confirmed that he was familiar "to a
degree" with the citations which were issued to Dakco, and in
his judgment, the work being performed by Dakco was "repairing
dnd maintaining" work ('l'r. 63). He dgreed that the new
structures installed by Dakco made for a more efficient system
and increased the production capacity of the plant (Tr. 64).
Mr. Kirchartz agreed that the noise levels to which Dakco
employees may have been exposed to during the vacation period
when the plant was not processing coal was less than the exposure when it was fully operational. He also agreed that the
quantity of any accumulated coal dust would be less when coal
was not being processed through the plant, but maintained that

1264

methane would still be present even if the coal were wet. He
conceded that he made no actual count of the number of acetylene and oxygen tanks being used by Dakco during its work, and
confirmed that all employees performing work on a piece of
plant equipment, including Dakco employees, would have access
to the plant control room so that they could lock-out the
equipment while working on it (Tr. 64-68).
Mr. Kirchartz confirmed that Dakco employees worked on
all three shifts during the time in question, and that while
he worked the midnight shift for the first 2 days of the vacation period, july 25 and 26, he began working on the day shift
on July 27, and was present in the plant most of the time that
Dakco people were performing their work. He also confirmed
that the work he and other employees of Southern Ohio were
doing in the plant was not the same work being performed by
Dakco CTr. 68-69).
Alex K. Volek, MSHA Coal Mine Inspector, testified as to
his experience and duties, and he confirmed that since October
1986, he has been assigned to inspect the work areas of independent contractors to insure compliance with the mandatory
safety standards found in Parts 75 and 77, Title 30, Code of
Federal Regulations, and the training requirements found in
Part 48. He confirmed that he inspected the subject plant
beginning on July 28, 1987, after determining that contractors
were scheduled to do work there, and he identified some of the
contractors, including Dakco, which had sub-contracted a job
from Fair-Quip. At that time, he met with Mr. Don Keffer, the
president of Dakco, and Mr. Keifer confirmed that his employees
"would be doing some changing out work with screens, pipes and
various other work in the plant." In response to his
inquiries, Mr. Keffer speculated that 28 Dakco employees would
be on the mine property, and that some of his people were
trained. However, Mr. Keffer did not have any training records
available at that time, and he informed Mr. Volek that he would
make them available for review and discussion the next day,
July 29. Mr. Volek stated that "I didn't see no addition to
the plant being built. I didn't see any new construction being
done" (Tr. 73-79).
Mr. Volek stated that when he inspected the plant on
July 28, with Mr. Keffer, he observed a number of oxygen and
acetylene tanks in the elevator approach area which were not
secured, and he issued a citation to Southern Ohio. He also
encountered an employee leaving an elevator on which he had
also stored his equipment, and although he discussed the
matter with the employee, he did not issue any citation. He
also observed welding and burning work being performed on

1265

different floors of the plant, and observed burning slag
generated by the welding work falling to the floors below
through the large holes and openings in the floors from where
equipment had been removed. Some of the floor openings, which
he estimated to ·be 15 by 12 feet, had ropes or tape strung
along the back side as improvised handrails, and he concluded
that they were insutf icient to prevent anyone from falling
into the floor openings. He also encountered an obstructed
walkway and a leaking acetylene tank which had previously been
detected and scheduled for change out. Mr. Volek confirmed
that he issued no citation for the leaking tank because it was
being taken care of, and he could not recall issuing any
citations for any of the other conditions which he observed
(Tr. 80-85).
Mr. Volek confirmed that he returned to the mine on
July 29 and reviewed Mr. Keffer's training records which he
had brought with him. Upon review of the records, Mr. Volek
determined that 21 of Dakco's employees had been trained as
reflected by the recordd produced by Mr. Keffer. However,
Mr. Keffer had no training records for seven additional
employees who were working at the mine. Under the circumstances, Mr. Volek issued a citation to Mr. Keffer for not
having the records available as required by section 48.29(a),
.and he fixed the aba~ement time for the next morning, July 30,
1987 (exhibit R-1). He subsequently issued a section 104(b)
order for non-compliance on July 30, when the records were not
produced (exhibit R-1-A) (Tr. 85-88).
With regard to the citations issued for the failure of
Mr. Keffer to make available any training records for seven of
his employees, Mr. Volek confirmed that he characterized the
work being performed by these employees as "maintenance and
repair work" on the face of the citation and order because he
believed that "the work that they were doing, I felt, was
maintenance and repair work." He also confirmed that he
applied MSHA's guidelines as follows at (Tr. 89):
A.

As I -- the guidelines I have in relation
maintenance and repair work versus construction work are such that if the miners are working in the environment of the contractors -- or
the contractors are working in conjunction with
the miners and they are exposed to mine hazards
and there is no building of a new facility or
no expansion of a new facility and they are in
the work environment of the miners, then they
are required to train.
~o

1266

Mr. Volek confirmed that the guidelines to which he
ref erred .are those stated on page 34 and 35 of an MSHA Administrative Manual dealing with Part 48 training and retraining of
miners, July 1, 1985 {exhibit ALJ-1; Tr. 93-94; 109). He also
confirmed that since Mr. Keffer produced the training records
for some of his employees, he must have been aware of the fact
that his employees were required to be trained.
Mr. Volek explained that another prime contractor,
Fair-Quip, had subcontracted the Southern Ohio preparation
plant work to Dakco. At that time, Fair-Quip had its employees
working at another plant performing repair and maintenance
work, and the employees were not trained. Mr. Volek required
them to be trained, and they did in fact receive MSHA approved
training. Mr. Volek was sure that he issued a citation to
Fair-Quip for not training its employees, but he was not certain {Tr. 101). Mr. Volek concluded that at the time Fair-Quip
subcontracted the work to Dakco, Fair-Quip was aware of MSHA's
training requirements, and its project manager John Pelagreen
was present when he reviewed Dakco's records {Tr. 97).
Mr. Volek confirmed that he did not discuss with
Mr. Keffer the reasons for his failure to produce Dakco's
training records on July 30, because Mr. Keffer did not appear
at the mine that day. Mr. Volek was told that Mr. Keffer was
still in his office in Athens getting the records, but since
he did not appear at the time the citation was due for abatement, Mr. Volek issued the order {Tr. 103). The order was
terminated the next day, July 31, by Inspector Edwin Fetty
after Mr. Keffer produced his records that same day {Tr.
103-104). Inspector Fetty determined that six of the seven
Dakco employees for whom training records had been produced
had been trained. Mr. Fetty also determined that one of the
employees {Victor Wilson), had not been trained, and he issued
a citation to Mr. Keffer on July 31 for not training
Mr. Wilson. He also issued an order withdrawing Mr. Wilson
from the mine until he was trained {exhibits R-2, R-2-A; Tr.
102-104).
Mr. Volek stated that contractors are not necessarily
required to have their own MSHA approved training plans for
tteir employees. If they choose not to have their own plan,
they may use the existing plan applicable to the mine operator
who hires them. Mr. Volek confirmed that at the time of his
inspection he made no inquiry of Dakco as to whether it had
its own training plan or relied on Southern Ohio's plan.
On cross-examination, Mr. Volek stated that he could not
recall the type of training received by the 21 Dakco employees

1267

for whom training records were made available by Mr. Keffer.
He agreed that the type of training required of the other
seven employees would have required removing them from work
and undergoing a one-day long training program, and he was
satisfied that the 21 employees did not require further
training CTr. 106-107).
Mr. Volek stated that he would not characterize the work
being performed by Dakco's employees as "an alteration of
existing facilities;" "rebuilding of an existing facility;" or
the demolition "of an existing facility or a portion of an
existing facility." He could not state whether the work being
performed by Dakco was "routine maintenance" without speculating, but then said "I could say, yes, it is routine
maintenance" CTr. 108).
Referring to MSHA's manual guidelines, at pages 34 and 35
(exhibit ALJ-1) Mr. Volek disagreed that the distinctions
between "service and maintenance and repair," as opposed to
"construction" was "a fuzzy or gray area," and stated that it
was clear to him, particularly when he had to consider that
the contractor's employees are working in the same environment
and are exposed to the same hazards as miners. He conceded
that he made no mention of any hazard exposure by Dakco
employees when he issued his citation (Tr. 109-111). He also
conceded that on the days that he was at the mine, it was not
producing coal through the preparation plant, and that following MSHA's guidelines, he woul6 not consider the mine as "operational" on those days (Tr. 111). Mr. Volek also conceded
that if one could establish that the mine was down at any
particular time and was not operational, an employee engaged
in construction work rather than in repair and maintenance
work would fall under the exception found in MSHA's training
requirements, and he would not be required to undergo training.
In these circumstances, there would be no violation, and
MSHA's counsel agreed that this would be the case (Tr. 114).
Referring to the language which appears at page 35 of
MSHA's Manual (exhibit ALJ-1), "Installing or rebuilding of a
conveyor system would normally be considered construction,"
Mr. Volek agreed that substituting the words "chute system,
screen system" for "conveyor system" would also be considered
construction work. He also agreed that what Dakco was doing
was "tearing out old and installing new chutework, taking out
old and installing new screenwork" (Tr. 115-116).
MSHA Coal Mine Inspector/Electrical Specialist Edwin W.
Fetty testified as to his experience and duties, including
work in the construction industry. He confirmed that he was

1268

at the plant, beginning on July 28, 1987, to conduct electrical-spot inspections of the work being performed by contractors, and was also there on July 29 and 31, 1987. He found no
distinguishable barriers separating or distinguishing the work
areas of Dakco and Southern Ohio employees, and he observed
ribbon placed around exposed areas of the plant which had been
cut through with jackhammers to facilitate the installation of
pipes and chutes, and he also observed workers removing parts
of screens and chutes. He noticed several hazards associated
with rope or ribbon replacing handrails which had been
removed, welding cables, torch and air hoses, oxygen and
acetylene bottles, and materials lying in the walkways (Tr.
124-129).
Mr. Fetty stated that he was instructed to return to the
mine on July 31, to follow-up on some pending paper work which
Inspector Volek had issued, and after reviewing Dakco's training records with MSHA training specialist Aaron Justice, they
found no training record for employee Victor Wilson. Mr. Fetty
informed Mr. Keffer that Mr. Wilson would have to be withdrawn
and trained and that he would issue an order and a citation
requiring Mr. Wilson to be trained and that a record of this
training had to be made available to him. Mr. Keffer immediately removed Mr. Wilson, and Mr. Wilson confirmed to Mr. Fetty
that he had not been trained. Mr. Keffer advised Mr. Fetty
that he needed Mr. Wilson on the job, and Mr. Fetty agreed to
make himself available later in the day to abate the order and
citation upon Mr. Keffer's proof that Mr. Wilson was trained.
Mr. Keffer came by his home later that day, and after producing
the required proof, Mr. Fetty terminated his citation and
order, and the order previously issued by Inspector Volek (Tr.
129-134).
Mr. Fetty confirmed that during the course of his previous inspection of the plant on July 28, he issued no citations to Dakco. Any inapection of Dakco's work that day would
have been in connection with electrical work. He had no knowledge as to how long Dakco may have been at the mine, and he
could not recall speaking ~ith Mr. Wilson about the nature of
the work he was performing. When asked about any assumptions
that he may have made with respect to wheti1er Dakco was performing maintenance and repair work subjecting it to the
MSHA's training requirements, Mr. Fetty responded as follows
at (Tr. 136-137):
A. No, I didn't really assume.
It was in my
opinion of being in the construction business
and doing things.
I have my own distinguishment between what is construction and what is

1269

construction repair. I feel if you remove
something, a portion of, and replace it with
something, you're actually restoring it back to
what would be to originality or productive
means. If you was putting all new chutework
in, all new pipework, then that would be what I
would consider to be construction work.
Mr. Fetty believed that the screens removed and replaced
by Dakco were probably the original screens placed in the
plant, and that due to updating and modern technology,
Southern Ohio felt it was to their advantage to replace them.
He had heard ·from others that Dakco had been on the property
since May, 1987, doing other jobs, and he knew that they were
on the property in 1986 doing some work during the miners'
vacation period, but he had no records confirming how long
Dakco had been on the property. He confirmed that Dakco
abated his citation and order concerning Mr. Wilson by giving
him 8 hours of refresher training, and Mr. Fetty had no
knowledge as to the kind of training given the other Dakco
employees (Tr. 139-141).
On cross-examination, Mr. Fetty confirmed that while he
did not observed the work being performed by Dakco on July 31,
1987, when he issued his citation, he did observe some of the
work being performed by Dakco employees, particularly with
regard to the removal of chutes and screens by means of a
large crane. Mr. Fetty agreed that the new installation by
Dakco upgraded and improved the efficiency of the system being
replaced (Tr. 144).
Contestant's Testimony and Evidence
Donald A. Keffer, President, Dakco Corporation, testified
that his company has been in existence since 1984, and that it
is engaged in construction work in the coal mining industry.
He confirmed that his company performed work at Southern
Ohio's Martinka No. 1 Mine in 1987, and that prior to this
time he had performed work at the mine three or four times,
including 1986 when work was performed at the breaker building
during the vacation period. Mr. Keffer stated that during the
vacation period of 1987, Dakco removed four screens from the
eighth floor of the plant, two screens from the seventh floor,
and three screens from the third floor.
Dakco was on the
property on June 17 for the vacation job. It had previously
been there from May 20 through 26 removing and replacing an
old belt drive at the preparation plant, and when it finished
that job, it came back and started on the vacation job.
Employees were on the job from June 17 through the vacation

1270

period which began on July 25, and the work week was Wednesday
through Sunday. The work performed before the vacation period
involved the replacement of a magnetic separator tank, which
was part of the plant upgrading, and during the vacation
period, screens and chutes were dismantled, removed, and
replaced, and cranes and hoists were used to remove the old
screens through an opening in the side of the plant (Tr.
147-152).
Mr. Keffer identified two photographs depicting the
removal of screens from the side of the plant opening (exhibits
c-1 and C-2), and he explained that the work performed by Dakco
in the plant included concrete floor work, and the installation
of structural steel on the floors where the screens and chutes
were replaced, and he confirmed that none of the work performed
by Dakco employees involved "fixing something which was broken
so it could then operate correctly." The work consisting of
the "gutting out or removing existing chutework and existing
pipework and existing screens and replacing them" with new ones.
The installation of new equipment upgraded and improved the
efficiency of the preparation plant, and Mr. Keffer was of the
view that the work performed was construction work, rather than
repair and maintenance work. He believed that the plant had
been in place for approximately 12 years (Tr. 153-156).
Mr. Keffer confirmed that at the time the citations were
issued he discussed the matter with the inspectors and took
the position that the training standards did not apply to his
employees because the work they were perf ocming was construction work. However, the inspectors interpreted the work as
"maintenance and repair" and so stated on the citations.
Mr. Keffer also confirmed that Southern Ohio's policy requires
that all mine visitor take 15-minute hazard training, including the wearing of hard hats, hard-toed shoes, and hearing
protection as required while in the plant (Tr. 156-158).
Mr. Keffer stated that the vacation work performed in
1987 was his first major project at the plant and that 20 to
25 percent of the plant was removed and replaced. Prior work
performed in 1986 at the breaker building, which is physically
separated from the plant, lasted 2 weeks, and although MSHA
inspectors were present during that work, no training citations were issued. He confirmed that the employees working in
the breaker plant had received no MSHA training, and that none
of the inspectors who were present at that time questioned any
lack of training (Tr. 159, 172-173).
Mr. Keffer believed that the mine may have operated on
Saturday and Sunday, July 25 and 26, before the citations were

1271

issued, and that while no coal was run through the plant,
"filter cake" was. This was done to collect fine refuse material to clean up the water system, and entailed the operation
of some pumps, filters, and one conveyor belt, and the work
was done on the third floor next to where his employees were
working CTr. 160).
Mr. Keffer stated that at the time Inspector Volek
appeared at the plant, most of "the junk" had been removed
from the plant. All of his employees were experienced workers
and were not "hired off the street" (Tr. 161). He characterized the previous work performed at the breaker plant as construction work involving the removal and replacement of
deteriorated floors and grating, sandblasting, painting, and
concrete work on seven floors (Tr. 164).
Mr. Keffer stated that when he discussed the matter with
Inspector Volek all of his employees working at the plant had
initially received or signed up for the 15-minute hazard recognition training conducted by the foremen, and weekly safety
meetings were held. In addition, the employees whose training
records he produced to abate the citation had all received
8-hour comprehensive annual refresher training which was given
on July 28, 1987, when Mr. Fetty, Mr. Volek, and Mr. Justice
took the position that he was engaged in repair and maintenance work. Six or seven employees were pulled off the job
and given training that same night to meet MSHA's requirements
(Tr. 167, 171). All of the training given his employees at
this time, with the exception of the 15-minute hazard recognition, was given in order to abate the citations and to comply
with MSHA's requirements as communicated to him by he
inspectors (Tr. 172).
With regard to Inspector Volek's citation, Mr. Keffer
stated that after issuing the citation on Wednesday, July 29,
1987, Mr. Volek advised him that he would meet with him on
Friday morning. However, because of a schedule change,
Mr. Volek returned prematurely on Thursday, July 30, and
Mr. Keffer was not available because he was in Ohio retrieving
his records (Tr. 172).
Mr. Keffer believed that the training citations he
received came about as a result of a dispute and grievance
filed by the local union against his company for using
non-union labor for the Southern Ohio work which he performed
(Tr. 173-176). Mr. Keffer conceded that prior to July 28,
1987, except for the 15-minute hazard recognition training
required by Southern Ohio's policy, none of his employees had

1272

ever received the type of training required by MSHA's regulations, and this included the time that work was performed at
the breaker building (Tr. 173-176). Not until after he
received the citations did he ever subject any of his
employees to any training on the assumption that they were
subject to MSHA's regulations, and the training was given
after the citations were issued so that they could be abated.
Mr. Keffer confirmed that his consistent position has
been that his employees were not covered by MSHA's training
regulations because they are construction people. He denied
that any of his work for Southern Ohio has been maintenance
and repair work, except for those instances where a job bid
required maintenance and repair work. He stated that his work
with Southern Ohio has always been "new" and that "we take out
old and put in new" (Tr. 180-183).
Mr. Keffer explained that the work in question at the
preparation plant was initially bid by Fair-Quip with Southern
Ohio as a non-union job, and after Fair-Quip over-extended
itself during the vacation period and could not do the job, it
sub-contracted the work to Dakco, with Southern Ohio's
approval (Tr. 184-187). Mr. Keffer confirmed that previous
work done by Dakco for Southern Ohio consisted of the breaker
building job when the refuse belt drive conveyor was changed
out during Thanksgiving of 1986, and the replacement of an
underflow thickener pump and new piping in the plant. This
work was done in December, 1986, and in both instances Dakco
was the prime contractor. Mr. Keffer also confirmed that more
work is being scheduled for the 1988 vacation period, and that
he contested the citations in order to establish a precedent
as to the training requirements which he does not agree with
(Tr. 188).
On cross-examination, Mr. Keffer identified and explained
several training certificates for several of his employees,
and confirmed that the training information shown on the forms
were to satisfy the requirements of Southern Ohio's hazard
training policy (Tr. 189-195). He confirmed that his
employees took the longer 8 hour training course in order to
insure that he was in compliance with MSHA's requirements,
even though he does not agree with them, and that his present
company policy is that all of his employees take 8 hours of
annual comprehensive training to avoid future citations (Tr.
198-199).
Frederick J. Hastwell, III, testified that he is a senior
coal preparation engineer for the American Electric Power
Service Corporation, the parent company of the Southern Ohio

1273

Coal Company, which operates the mine and pl~nt. He confirmed
that he was the project manager for the work being performed
by Dakco in July, 1987, and that he was on the premises on a
daily basis, and also during the vacation period from July 25
through August 7 CTr. 203-205).
Mr. Hastwell confirmed that Southern Ohio's policy at the
time Dakco was performing the work in the plant required that
Mr. Keffer and each shift foreman receive hazard training, and
they in turn would train their employees regarding specific
construction hazards, and this policy applied to everyone
coming on mine property. Mr. Hastwell confirmed that he was
familiar with the citations issued to Dakco, and he explained
the circumstances under which they were issued. He stated
that Mr. Keffer became concerned that the inspectors were
requiring other contractors present on the job to show that
their employees had received MSHA approved training, and he
permitted Mr. Keffer to use Southern Ohio's facilities to
insure that his employees received the 8 hour refresher training to abate the citations, even though he CHastwell) did not
agree that MSHA training was required (Tr. 203-210).
Mr. Hastwell stated that in all of his dealings with contractors performing work for Southern Ohio, the Dakco case is
the first instance that he knows of where MSHA has requested
training records from contractors and issued citations for
non-compliance (Tr. 211, 213). Inspector Volek disputed this
contention, and stated that he has issued prior citations
under similar circumstances, but without reviewing his
records, he was uncertain as to whether he has issued citations to contractors who claimed that they were only performing construction work. Mr. Volek stated further that although
most contractors performing work in preparation plants have
taken the position that they are performing construction work,
rather than maintenance and repair, they have always accepted
the citations and trained their people without contesting the
matter. Although these contractors may have a difference of
opinion, Mr. Volek stated that he explained to them the same
position he has taken in this case that such workers are working in the same environment as those miners in the production
and extraction process (Tr. 214-216).
Mr. Hastwell stated that he was present when Mr. Keffer
reviewed· his training records with Inspector Volek on July 29,
and discovered that everyone but Mr. Wilson had been trained.
Mr. Hastwell stated that Mr. Wilson's failure to receive
training was a mistake, and that the training records for the
other seven employees were found not to be in order because of

1274

insufficient employment applications or improper hazard
(Tr. 222).

tr~ining.

Mr. Hastwell agreed that the work performed by Dakco was
construction work, and not repair and maintenance work, and
that the replacement of the existing plant facilities provided
a major improvement in the efficiency of the plant, including
increased capacity and money savings. The replacement of the
existing facilities resulted in an increased production capacity of over 200 tons of coal an hour, which resulted in an
annual savings of millions of dollars. He also agreed that
the employees at the mine had never undertaken a project of
the magnitude of that performed by Dakco, and while employees
in the past have dismantled broken units and rebuilt them,
Dakco took out complete units, installed new structural steel,
motors, wiring, put in units in completely new floor space
configurations, and upgraded the plant. Mr. Hastwell
described the work and equipment installation performed by
Dakco by reference to a series of slides shown by Dakco's
counsel (Tr. 223-233; exhibits C-3-A through C-3-S).
Inspector Volek was called in rebuttal, and he denied
ever suggesting that Mr. Keffer avail himself of union labor
for the project in question. He indicated that he did mention
that other contractors may be in a position to help him with
training, and did so only because he knew that Mr. Keffer and
Mr. Hastwell had a job to do CTr. 238-239).
Mr. Hastwell was called in rebuttal, and he confirmed
that the Dakco project took approximately 2 months to complete,
starting with preliminary work on June 17, and extending
through the vacation period for 2 or 3 weeks to approximately
August 24. Since the completion of that project, Dakco has had
no other involvement at the Martinka Mine or other Southern
Ohio locations (Tr. 242-244).
MSHA's Arguments
In its posthearing brief, MSHA asserts that the Dakco
employees working at the preparation plant were "miners" under
the definition found in section 48.22(a)Cl), because they fall
within two of the four categories set forth in that provision.
MSHA states that the employees were working in a surf ace area
of an underground mine, namely a preparation plant, and that
they were regularly exposed to mine hazards. Secondly, MSHA
states that the employees were maintenance or service workers
contracted by the mine operator to work at the mine for
frequent or extended periods, and that they do not fall within

1275

the exclusion for construction workers- and shaft and slope
workers.
MSHA maintains that Dakco's employees were regularly at
the preparation plant from June 17, 1987 through at least
August 17, 1987, and that they also worked at the plant during
May 20 to 26, 1987. With the exception of the vacation period
from July 25, 1987 through August 7, 1987, MSHA states that
the preparation plant was in operation when Dakco employees
were present, that the plant equipment was in operation during
the vacation when filter cake was run during the midnight
shift of July 25, 1987, and that various pieces of equipment
were run dry and tested during the vacation.
MSHA asserts that throughout the time that Dakco employees
were working at the plant, employees of the operator, Southern
Ohio Coal Company, were wo4king there as well, and that no
physical barriers separated Dakco's employees from Southern
Ohio's employees, and that both sets of employees were working
in close proximity to each other on at.least some occasions.
Under these circumstances, MSHA concludes that Dakco workers
were exposed to any hazards stemming from the presence of
Southern Ohio workers in the same work environment, and vice
versa. MSHA further concludes that the hazards described by
the witnesses during the hearing are those which one could
expect to confront at any preparation plant environment, and
that most, if not all, of these hazards could have been present
even if Dakco workers had not been carrying out the particular
project in question. These are hazards which could result from
normal preparation plant operations, including maintenance and
repairs that might be carried out by the plant employees
themselves.
MSHA points out that the work being performed by Dakco
was the subject of a contractual relationship between
Fair-Quip and Southern Ohio Coal Company, and since Fair-Quip
subcontracted its work to Dakco, Dakco's employees thus were
"contracted by the operator" Southern Ohio Coal Company. MSHA
maintains that Dakco's employees were working at the mine "for
frequent or extended periods" in that the particular project
in question lasted at least 2 months, from June 17, 1987
through at least August 17, 1987, and that Dakco had also been
at the mine three or four previous times, including a project
at the breaker building during the 1986 vacation and a project
at the preparation plant from May 20-21, 1987. MSHA concludes
that the particular project in question in these proceedings
was for a substantial period of time and was one of a continuing series of projects carried out by Dakco at the mine.

1276

With regard to the project in question, MSHA maintains
that Dakco workers were performing maintenance or service work,
as opposed to construction, because they were carrying out
activities at an already existing mine facility. MSHA asserts
that the purpose of the Subpart B training regulations is to
protect those workers who come in contact with the unique conditions and hazards of a mine environment, and that maintenance
or service employees who work in the vicinity of, and in conj~nction with, mine products and equipment must receive this
training. On the other hand, employees who are merely digging
a mine, building a new mine structure, or expanding a mine into
new facilities need only construction-oriented training of the
sort to be included eventually in Subpart C when it is
promulgated.
MSHA takes the position that Dakco's employees were
clearly working at an established functioning mine facility,
shared the work environment with Southern Ohio employees, and
had to contend with walkways, escapeways, equipment, and
elevators that are laid out in a configuration unique to mines
as opposed to other facilities. Moreover, Dakco employees
were performing tasks done on other occasions by Southern
Ohio's personnel, albeit on a significantly larger scale.
MSHA maintains that certain details of Dakco's projectwhether they upgraded productive capacity, whether they
iLstalled structural steel, whether they changed the physical
layout of chutes, screens, and piping - are not critical to
resolving this case. MSHA asserts that it is irrelevant that
Dakco may call itself a construction contractor, and that the
key distinction between "maintenance or service" versus "construction" work is based upon whether a new mine facility was
being created or changes were being made within an established
mine facility. MSHA concludes that in this case, the facts
clearly establish that the latter was taking place, and that
the work must be defined as "maintenance or service."
MSHA asserts that the eventual purpose of Subpart C of
Part 48 of its training regulations, when they are promulgated,
will be to insure that appropriate training is provided to
workers exposed to construction-oriented conditions and hazards
as opposed to these uniquely related to surface mines and
surface areas of underground mines. Workers to be covered
under Subpart C are therefore e~cluded from the coverage of
Subpart B.
"Construction workers" for the purposes of this
exclusion should be defined as those employees exposed strictly
to construction conditions and hazards as opposed to those also
iGvolving mine conditions and hazards.

1277

MSHA finds it noteworthy that the exclusiQn found in
section 48.22(a)(l)(i) associates construction workers and
shaft and slope workers, and it maintains that these are
people engaged in digging new mines, not upgrading, rearranging, or maintaining existed mines. MSHA concludes that the
definition of construction workers must fit within this con~
text since these workers are building or erecting entirely new
facilities or new structures that are extensions of existing
facilities, and are constructing or installing an external
shell of a facility as well as the equipment to be placed
inside.
MSHA asserts that Dakco was not building a new preparation plant, was not adding a new building or section onto the
preparation plant, and was not even building a new level onto
the existing plant, a project that mignt arguably involve
significant exposure to the mining conditions on other levels
and thus be considered maintenance or service work. To the
contrary, MSHA maintains that Dakco changed screens, chutework, and piping in an effort to replace old equipment and
upgrade productive capacity at several levels of the already
functioning plant, and that in these circumstances, its
employees did not fall within the definition of construction
workers as contemplated by section 48.22(a)(l)(i).
Dakco's Arguments
In its posthearing brief, Dakco asserts that the
sub-contracting work it was performing at the preparation
plant consisted of removing 12 year old chutes, screens and
piping in completely different configurations, for the purpose
of upgrading and improving the efficiency of the preparation
plant. Dakco takes the position that the work being performed
by its employees was construction work, rather than repair and
maintenance work, and that in the circumstances, its employees
were excluded from MSHA's training requirements. Dakco maintains that as construction workers, the employees performing
the work in question were not "miners" within the definition
of that term found in section 48.22Ca)(l), and were therefore
not subject to MSHA's training regulations. Dakco points out
that since both of the contested citations refer to the work
being performed as maintenance and repair work, the inspectors
obviously relied on this definitional language as the basis
for the citations, rather than any concern for employee
regular exposure to mine hazards.
In short, Dakco contends
that the basis for both citations is the inspectors belief
that the work being performed was "repair and maintenance," as
opposed to "construction."

1278

In support of its position, Dakco relies on MSHA's policy
interpretation and guidelines concerning "construction" work,
as opposed to "maintenance and repairs," as found in an
August 26, 1985, MSHA Administrative Manual dealing with the
training and retraining requirements found in Part 48,
Title 30, Code of Federal Regulations (Exhibit ALJ-1).
In
this regard, Dakco makes reference to one of the guidelines
found in paragraph (2) on page 35, of the manual which states
that no training is required if the mine is not operational
and workers are performing construction work. Dakco also
makes reference to the manual policy interpretation of the
term "constr~ction work," which states that such work
"involves the building, rebuilding, alteration, or demolition
of any facility or addition to an existing facility," and the
interpretation of "maintenance or repair work" as including
"routine upkeep of operable equipment or facilities and the
fixing of equipment or facilities."
Dakco asserts that the mine was not operational, and that
the work being performed constituted the replacement of a
12 year old system, which included the rebuilding, alteration
and demolition of the chute system, screen system and piping,
rather than routine upkeep, or the replacement of a single
chute, screen, or pipe. Dakco further maintains that its preparation plant work was not designed to "repair" or "service"
or "maintain" the chm::e system, screen system and piping, so
that they could continue to operate at their optimum levels of
performance. Rather, the work was done to upgrade the overall
system and improve efficiency, with the result being that the
upgraded system saved Southern Ohio millions of dollars.
Dakco suggests that MSHA's enforcement action in these
cases may have been prompted by union pressure to force it to
use union workers for the work being performed at the preparation plant. In support of this assertion, Dakco stated that a
grievance was filed by UMWA District 31 a few weeks before the
issuance of the citation because Dakco is a non-union contractor, and that Inspector Volek was identified by one of its
witnesses as the individual who suggested that experienced
miners from the local Union hall could be called to do the
necessary work at the plant. Dakco asserts further that in
1986, when it was performing similar work on a breaker system
at the mine, MSHA inspectors who were present raised no questions concerning training or training records of its employees,
even though they had not received any MSHA training.
Finally, Dakco suggests that any ambiguity found in
MSHA's regulations or administrative manual should be resolved

1279

in its favor, and that on the facts here presented, the citations should be vacated.
Findings and Conclusions
Docket No. WEVA 87-334-R
Fact of Violation-Citation No. 2902509, July 29, 1987,
30 C.F.R. § 48.29(a)
The facts in this case establish that Inspector Volek went
to Southern Ohio's mine on July 28, 1987, to inspect certain
work areas where several independent contractors were either
performing work or scheduled to perform work. Mr. Volek spoke
with Dakco's President, Donald Keffer, who was at the mine, and
Mr. Keffer advised Mr. Volek that he would have approximately
28 employees working at the mine, and that some of them had
received training. Mr. Keffer advised Mr. Volek that he did
not have any training records available with him at the mine,
but that he would make them available to Mr. Volek. Upon his
return to the mine, Mr. Volek reviewed the training records
made available to him by Mr. Keffer. The records reflected
that 21 Dakco employees had received the required MSHA training, and although Mr. Volek could not recall the type of training that they had received, he was satisfied that they did not
require any further training. With regard to the remaining
seven employees, Mr. Volek found no tra'ining records confirming
that they had been trained, and he issued the citation because
Mr. Keffer could not produce any training records for these
employees, and he cited. a violation of training standard
30 C.F.R. § 48.29(a), which provides as follows:
§ 48.29

Records of training.

(a) Upon a miner's completion of each MSHA
approved training program, the operator shall
record and certify on MSHA form 5000-23 that the
miner has received the specified training. A
copy of the training certificate shall be given
to the miner at the completion of .the training.
The training certificates for each miner shall
be available at the mine site for inspection by
MSHA and for examination by the miners, the
miners' representative and State inspection
agencies. When a miner leaves the operator's
employ, the miner shall be entitled to a copy of
his training certificates.

1280

Mr. Volek confirmed that he issued the citation because
he believed the seven employees in question were engaged in
maintenance and repair work, and were therefore required to be
trained.
In making this judgment, he relied on the nature of
the work being performed by Dakco, and MSHA's policy
guidelines found at pages 34 and 35 of MSHA Administrative
Manual 30 C.F.R. Part 48 - Training and Retraining of Miners,
August 26, 1985 (exhibit ALJ-1). Mr. Volek rejected
Mr. Keffer's claims that his employees were "construction"
workers, rather than "maintenance and repair" workers, and he
relied on the manual guidelines which he believed required
MSHA training for contractor employees who are working in the
same work environment as other miners, and who are exposed to
the same mine hazards, and who are not engaged in the construction or expansion of a new mine facility such as the existing
preparation plant.
MSHA's training requirements for miners working at surface
mines and surf ace areas of underground mines are found in
Subpart B of Part 48, Title 30, Code of Federal Regulations.
The specific training requirements are found in sections 48.25
through 48.28. The cited standard, section 48.29, is a record
keeping requirement which requires an operator to record and
certify on an MSHA form that a miner has received the specified
training, and to have the training records available at the
mine for inspection by the inspector. I find nothing in this
record keeping requirement that requires any particular types
of training. Those requirements are found in the aforementioned training standards. Section 48.29 simply requires certain record keeping upon completion of a miner's training.
It
does not per se mandate training.
Notwithstanding Dakco's assertions that its employees are
not required to be trained pursuant to MSHA's training requirement, the fact is that on July 29, 1987, when Mr. Volek
reviewed Dakco's training records, Mr. Keffer produced training records for the 21 employees who had received and completed
the requisite training, and insofar as these employees are concerned, Dakco was in compliance with section 48.29, because it
produced records for the employees who had comoleted the
training.
With regard to the lack of any available training records
for the seven employees cited by Inspector Volek, since they
had not completed the training which Mr. Volek believed they
should have received, no records were available, and this
obviously explains the reason why Mr. Volex did not find them.
Had the employees completed the training, the failure by
Mr. Keffer to produce the records confirming this fact would

1281

have justified the issuance of the citation. However, based
on the facts of this case, and Mr. Volek's testimony, I am.
convinced that he issued the citation because he believed the
seven employees in question had not received the training
which he believed was required. Under these circumstances, I
conclude and find that Mr. Volek should have cited the applicable training standard requirement, rather than the record keeping standard. Accordingly, I find no basis for concluding
that Dakco was in violation of section 48.29, for failing to
have training records available for the seven employees in
question, and the citation IS VACATED.
Docket No. WEVA 87-333-R
Fact of Violation - Citation No. 2894879, July 31, 1987,
30 C.F.R. § 48.25(a)
In this case, Dakco is charged with a violation of mandatory training standard section 48.25(a), for failure to provide
the required training for one of its employees performing work
at Southern Ohio's preparation plant. The employee was identified in the citation as Victor Wilson, an ironworker. The
facts show that MSHA Electrical Inspector Edwin Fetty was at
the mine during July 28-31, 1987, conducting electrical spot
inspections of certain work being performed at the mine by
several contractors. Mr. Fetty returned to the mine on
July 31, as part of a follow-up inspection, and to abate the
section 104(b) order previously issued by Inspector Volek
because of the asserted failure by Mr. Keifer to timely produce
the training records for seven of his employees. Upon review
of these records, Mr. Fetty found records confirming the fact
that six of the employees had been trained, but he found no
training record for Mr. Wilson, and he issued the citation
because of Dakco's failure to train Mr. Wilson. Mr. Fetty also
issued a simultaneous order withdrawing Mr. Wilson until he
could be trained. Dakco withdrew Mr. Wilson, provided him with
training that same day, and Mr. Fetty abated his citation and
order. He also abated Mr. Volek's previously issued withdrawal
order.
Section 48.25 requires certain training for new miners.
Included among the requirements is a provision requiring no
less than 8 hours of training for all new miners before they
are assigned to work duties. The 8 hours of training includes
an introduction to the miner's work environment, hazard recognition, and health and safety aspects of the tasks to which
the new miner will be assigned.

1282

Section 48.22(a)(l) provides the following definition of
a "miner" who is required to receive training:
For the purposes of this Subpart B(a)(l)
"Miner" means, for purposes of sections 48.23
through 48.30 of this Subpart B, any person
working in a surf ace mine or surf ace areas of
an underground mine and who is engaged in the
extraction and production process, or who is
regularly exposed to mine hazards, or who is a
maintenance or service worker employed by the
operator or a maintenance or service worker
contracted by the operator to work at the mine
for frequent or extended periods~ This definition shall include the operator if the operator
works at the mine on a continuing, even if
irregular, basis. * * * * This definition
does not include:

*

*

*

*

*

*

*

Cl) Construction workers and shaft and
slope workers under Subpart C of this Part 48:
* * * (emphasis added).
MSHA's policy guidelines concerning the training requirements of Subpart B, Part 48, Title 30, Code of Federal Regulations, are found at pages 34 through 36 of MSHA Administrative
Manual 30 C.F.R. Part 48 - Training and Retraining of Miners
(exhibit ALJ-1). The guidelines for persons performing construction, maintenance, or repair worK are found at page 35,
and they state as follows:
Construction work includes tne building,
rebuilding, alteration, or demolition of any
facility, or addition to an existing facility.
Installing or rebuilding of a conveyor system
would normally be considered construction.
Maintenance or repair work includes routine
upkeep of operable equipment or facilities, and
the fixing of equipment or facilities. Replacement of a conveyor belt would normally be considered maintenance or repair.
The training required for persons performing construction, or maintenance or repair work
often depends upon:
(1) whether or not a mine
is operational; (2) whether the work is performed on a regular basis; and (3) whether the

1283

exposure to mining hazards is frequent. Generally, a mine is operational if it is producing
material or if a regular mainten~nce shift is
ongoing; it is not operational if it is not
producing material due to miners' vacations,
strikes, or other shutdown periods. Work performed on a frequent basis is work performed
for more than five consecutive working days.
Regular exposure to mine hazards is exposure
that follows a recognizable pattern on a
recurring basis.
The following guidelines should be used to apply the
above factors:
( 1) If workers are performing sh"aft and slope
construction work, whether or not the mine is
operational - No training is required.
(2) If the mine is not operational and workers
are performing construction work - No training
is required.
(3) If the workers are performing maintenance
or repair work on an infrequent or irregular
basis, and they are independent contractors or
their employees, Hazard training under 48.31 is
required. However, if such workers are
employees the operator - Comprehensive training
under Subpart B is required.
(4) If workers are performing maintenance or
repair work on a frequent or regular basis,
whether or not the mine is operational Comprehensive training under Subpart B is
required.
Dakco's president, Donald Keffer, confirmed that all of
his workers were experienced, and he conceded that prior to
July 28, 1987, none of his employees had.ever received the type
of training required by MSHA's regulations. However, they did
receive 15-minute hazard recognition training as required by
Southern Ohio's policy. Mr. Keffer's position is that none of
his employees are covered by MSHA's training requirements
because they are engaged in construction work, rather than maintenance and repair work. He confirmed that he advised the MSHA
inspectors of his position, but they believed his employees
were engaged in maintenance and repair work and were required

1284

to .be trained pursuant to MSHA's requirements. Mr. Keffer confirmed that he agreed to remove the affected employees from the
job so that they could receive 8 hour training in order to
abate the citations, and that he now requires all of his
employees to take 8 hours of annual comprehensive training
pursuant to MSHA's requirements in order to avoid future
citations, notwithstanding his position that his employees are
not covered by MSHA's training regulations.
In this case, Dakco is charged with the failure to provide at least 8 hours of new miner training for Mr. Wilson. A
"new miner" is defined by section 48.22(a)(2)(c) as "a miner
who is not an experienced miner." An "experienced miner" is
defined by subsection Cb) as a person who received training
within the preceding 12 months from an appropriate State
agency; a person who has had at least 12 months' experience
working in a surface mine or surface area of an underground
mine within the past 3 years; or a person who has received new
miner training as prescribed by section 48.24, within the preceding 12 months. Although Mr. Keffer testified that all of
his employees were experienced workers, no testimony or evidence was forthcoming from Dakco or MSHA as to Mr. Wilson's
background, experience, or prior training, and Dakco has conceded that he had not received the training required by the
cited section 48.25. However, in order to establish a violation in this case, MSHA has the burden of establishing that
Mr. Wilson was a "miner" within the definition of that term
under section 48.22(a)(l), and that Dakco was required to
provide him training.
The definition in section 48.22Ca)(l) of a "miner" subject
to MSHA's training requirements found in sections 48.23 through
48.30, includes four categories of individuals performing work
at the preparation plant in question, and they are as follows:
any person who is engaged in the extraction
and production process.
any person who is regularly exposed to mine
hazards.
any person who is a maintenance or service
worker employed by the operator.
any person who is a maintenance or service
worker contracted by the operator to work at
the mine for frequent or extended periods.

1285

Also included in the definition of a "miner" subject to
the training requirements of sections 48.23 through 48.30, are
operators.working at the mine on a continuing, even if ir~egu
lar basis. The term "operator" as defined by subsection Ce)
of section 48.22, includes an independent contractor performing services or construction at the mine.
Included in the
section 48.22(a)(2) definition of "miner" for purposes of
hazard training pursuant to section 48.31, is an "occasional,
short-term maintenance or service worker contracted by the
operator."
Excluded from the definition of miner for purposes of section 48.23 through 48.30 training are construction and shaft or
slope workers under MSHA's Subpart C, Part 48 construction
safety and health standards. These standards have not as yet
been promulgated by MSHA. The general OSHA construction industry health and safety standards were published in the Federal
Register on February 9, 1979, 44 FR 8577, and they are found in
Part 1926, Title 29, Code of Federal Regulations. I take official notice of a September 4, 1979, MSHA Memorandum circulated
to "interested persons" by its Office of Standards, Regulations, and variances inviting comments to MSHA's draft safety
and health standards for construction work on the surface of
mine property. Section 1926.21 of the draft proposed regulations requires employer compliance with the training standards
to be promulgated by MSHA as Subpart C, Title 48, Code of
Federal Regulations, and it notes that "these regulations are
currently under development by MSHA. ·The term "employer" as
defined by draft section 1926.32Ck), includes an independent
contractor performing services or construction at a mine, and
the term "construction work" is defined by subsection (g) of
section 1926.32Ck), as "the building, rebuilding, alteration,
or demolition of any facility or addition to an existing facility at a surface mine or surface area.of an underground mine,
including painting, decoration or restoration, associated with
such work, but excluding shaft and slope work."
In support of the citation in question, MSHA takes the
position that the Dakco employees working at the preparation
plant were "miners" under section 48.22(a)(l) because they
fall within two of four categories set forth therein; namely,
Cl) they were regularly exposed to mine hazards, and (2) they
were maintenance or service workers contracted by the operator
to work at the mine for frequent or extended periods. Furthermore, MSHA contends that these employees do not fall within
the exclusion for construction worxers and shaft and slope
workers. Taking into account MSHA's position in this case, in
order to establish a violation with respect to Mr. Wilson, it

1286

has the burden of establishing that Mr. Wilson was either regularly exposed to mine hazards or was a maintenance or service
worker contracted by the operator to perform work at the mine
for frequent or extended periods of time.
Regular Exposure to Mine Hazards
The parties have stipulated that Dakco employees were performing work at the mine preparation plant from May through
August 1987. Mr. Kirchartz testified that Dakco employees were
working at the preparation plant during the 3-day memorial day
period, which would have been the week-end of May 30-31, 1987,
and intermittently from that time through the vacation period
from July 25 to August 7, and for approximately a month thereafter (Tr. 30-32). Inspectors Volek and Fetty did not document
the actual time frames during which Dakco was present at the
plant during 1987, and the citation issued by Mr. Fetty does
not state precisely when Mr. Wilson was performing work at the
plant. Although the parties stipulated that Mr. Wilson was
working at the plant "during July 1987," the only direct evidence establishing his actual presence at the plant is the
citation issued by Mr. Fetty which reflects that Mr. Wilson was
immediately withdrawn from the mine that day and allowed to
return after he was trained.
Mr. Keffer testified that Dakco probably had three or
four jobs at the mine prior to 1987, and that during May 20
through 26, 1987, work was performed at the plant removing an
old belt drive and replacing it with a new one. After this
work was completed, Dakco returned on June 17, 1987, to do
some preparation work for the "vacation work," and this work
included the replacement of a magnetic separator in the plant.
Dakco continued its work at the plant dismantling, removing,
and replacing screens and chutes, from June 17 through the
vacation period which began on July 25, on a Wednesaay through
Sunday work schedule (Tr. 149-150). No testimony was elicited
from Mr. Keffer as to precisely when Mr. Wilson performed work
at the plant, or what he was doing, and Mr. Wilson was not
called to testify in this case. In response to pretrial
interrogatories, Dakco lists the name of Victor Wilson as an
ironworker who performed work at the plant "during the period
including July 29, and 31, 1987."
Although Dakco's responses to the interrogatories reflect
that it had performed work at the mine during September December 1985, June - July, and December, 1986, and January
and May, 1987, there is no evidence or testimony that
Mr. Wilson had ever performed any work during these time
periods. In short, the only probative evidence of record

1287

reflects that Mr. Wilson performed some work at the plant
sometime during July 29 and 31, 1987.
The testimony by the inspectors who issued the citations
in question establishes that they issued them because they
believed that Dakco's employees were performing maintenance
and repair work, rather than construction work. Although
Inspector Volek confirmed that he followed the manual guidelines, and generally alluded to contractor employees exposure
to the same hazards to which other miners are exposed, his
belief that Dakco employees were covered by MSHA's training
requirements was based on his view that no new facility was
being constructed or expanded. His citation makes no mention
of any Dakco employees being exposed to any hazards, and
although he testified as to several hazards which he believed
were present, he issued no citations or violations to Dakco.
With regard to Inspector Fetty's citation concerning
Mr. Wilson, the citation makes no mention of any hazards associated with any work being performed by Mr. Wilson. Although
Mr. Fetty alluded to several hazards w~ich he believed were
generally associated with the work being performed by Dakco at
the plant while he was there during July 28-31, 1987, he issued
no hazard citations to Dakco, and admitted that when he issued
his citation on July 31, 1987, he did not observe the work
being performed by Dakco. As a matter of fact, Mr. Fetty could
not recall speaking with Mr. Wilson about the nature of the
work he was performing, and Mr. Fetty ·had no knowledge as to
how long Dakco may have been at the mine performing work, and
he had no factual basis for determining whether or not Dakco
may have been present for frequent or extended periods of time
(Tr. 138, 141). Having closely examined Mr. Fetty's testimony,
it seems clear to me that he issued the citation because he
believed the nature of Dakco's work involved restoration maintenance and repair work, rather than new work.
The definition of "miner" found i~ section 48.22(a)(l)
includes one who is regularly exposed to mine hazards. MSHA's
general policy guideline found at page 34 of its manual adds
the term "frequent" so that the definition reads "regular" or
"frequent" exposure to mine hazards. The guideline then
defines "regular exposure" as "a recognizable pattern of exposure on a recurring basis," and the term "frequent exposure"
as "exposure to hazards for more than five consecutive days."
Under the general discussion concerning persons performing
construction, maintenance, or repair work, found at page 35 of
the manual, the guidelines define work performed on a "frequent
basis" as work performed for more than 'five consecutive working

1288

days, and "regular exposure to mine hazards" as exposure "that
follows a recognizable pattern on a recurring basis."
The contested citation in this caie is confined to
Mr. Wilson, and no other Dakco employee, and I am constrained
to limit my findings and conclusions only to Mr. Wilson and no
one else. After careful review and examination of all of the
evidence adduced in this case, I conclude and find that MSHA
has failed to establish that Mr. Wilson was regularly exposed
to any mine hazards within the meaning of that term as found
in section 48.22(a), or in MSHA's policy guidelines. The evidence of record in this case does not establish that Mr. Wilson
was exposed to any hazards, and any suggestions in this regard
by MSHA are simply unsupportable, and they ARE REJECTED.
Further, although Mr. Kirchartz alluded to several hazards
which he believed were generally associated with the preparation plant work environment, there is absolutely no credible
evidence establishing that Mr. Wilson was exposed to any of
these asserted hazards.
In short, MSHA has failed to establish any nexus between Mr. Wilson's work and any existing
hazards which would have exposed him to any potential injury.
Maintenance or Service Worker Issue
MSHA's assertion that construction work can only take
place when a mine or associated facility such as a preparation
plant are initially built and become operational, and that any
subsequent work may only be considered maintenance or repair
is not well taken. MSHA's policy guidelines clearly state
that the rebuilding, alteration, or demolition of any facility
is construction work. Maintenance or repair work is construed
by the policy as the routine upkeep or fixing of equipment and
facilities.
(Exhibit ALJ-1, pg. 35). The guidelines do not
distinguish "new" or "old" facilities.
On the facts and evidence presented in this case, it
seems clear to me that the work performed by Dakco was construction work entailing an extensive demolition, rebuilding,
renovation, and installation of a rather extensive coal chute
and screen system in the preparation plant. The work included
the removal and replacement of plant siding to facilitate the
removal and replacement of complete units, extensive steel and
concrete floor work to accommodate the new system, new floor
configurations, and the removal and replacement of piping,
·electrical wiring, and the like. The reconfigured chute and
screen system resulted in a marked increase in the plant's
productive capacity, with substantial savings to the mine operator. Given the scope of the project, I conclude and find

1289

that the work performed by Dakco was not "routine upkeep and
fixing."
MSHA's further assertion that the exclusion of construction workers from the definition of "miner" found in section
48.22(a}, for purposes of mandatory training sections 48.23
through 48.30, is limited only to workers engaged in shaft and
slope construction work is likewise not well taken. MSHA's
current training regulations found in Subpart B, of Part 48,
which are applicable to surface areas of underground mines,
contain no mention or definition of the term "construction
work." The only Subpart B reference to "construction" is
found in the d~finition of "operator" in section 48.22(e),
which includes "any independent contractor identified as an
operator performing services or construction at such mine."
On the other hand, MSHA's Subpart A training regulations,
which apply to underground mines, exclude shaft and slope
workers, workers engaged in construction activities ancillary
to shaft and slope sinking, and workers engaged in the construction of major additions to an existing mine which
requires the mine to cease operations 1section 48.2(i)).
Subparts A and B both rely on MSHA's unpromulgated Subpart C
regulations as the basis for excluding construction workers
and shaft and slope workers.
MSHA's draft unpromulgated construction regulations,
Part 1926, Title 29, Code of Federal Regulations, at section
1926.32(g), defines the phrase "construction work" as follows:
[T]he building, rebuilding, alteration, or demolition of any facility at a surface mine or
surface area of an underground mine, including
painting, decoration or restoration associated
with such work, but excluding shaft and slope
sinking.
(Emphasis added).
As noted above, MSHA's unpromulgated draft definition of
"construction work" specifically excludes shaft and slope sinking, and the exclusionary language found in section 48.22(i},
on its face distinguishes construction workers from shaft and
slope workers. Under the circumstances, I have difficulty
comprehending MSHA's argument that only shaft and slope
workers qualify for an exemption from MSHA's Subpart B comprehensive training requirements. I also have difficulty in
accepting the reliance by the parties on regulations such as
Subpart C, which have yet to be promulgated by MSHA.
MSHA's policy guidelines concerning the training requirements found in its Subpart B regulation~ appear to be based on

1290

a mix of the definition of a "miner" for training purposes pursuant to Subpart A, as well as Subpart B, and to this extent I
find the guidelines to be rather confusing and contradictory.
For example, guidelines No. 1, No. 2, and No. 4, which appear
at page 35 of the policy manual, are premised in part on the
fact that a mine may be operational or not. Guideline No. 1
totally exempts shaft and slope construction workers from all
training requirements, regardless of whether or not the mine is
operational. Guideline No. 2 totally exempts workers "performing construction work," without limitation as to whether or not
it is slope and shaft work, as long as the mine is not operational. Guideline No. 4 requires comprehensive training if
workers are performing maintenance and repair work orr a f requent or regular basis, regardless of whether or not the mine
is operational.
I find nothing in MSHA's Subpart B surface area training
regulations that even suggests that the operational mode of the
mine at any given time is the determining factor as to whether
training is required. On the other hand, the definition of a
covered "miner" found in Subpart A, section 48.2, for underground mines, includes language that excludes workers engaged
"in the construction of major additions to an existing mine
which requires the mine to cease operations." If this language
found in section 48.2 is the basis for MSHA's policy distinctions between an operational and non-operational mine for purposes of the training requirements found in Subpart B, it would
seem that MSHA has published a surface area training policy
based on regulatory provisions applicable to underground mines.
Another area of confusion is found in guideline No. 3.
That guideline states that maintenance or repair workers of
independent contractors who work on an infrequent or irregular
basis are only required to have hazard training under training
section 48.31. However, the guideline goes on to state that
if such workers are employees of the operator, comprehensive
training is required. Since the term "operator," by definition, includes an independent contractor performing services
or construction at a mine, one could argue that contractor
employees working on an infrequent or irregular basis are also
required to have comprehensive training.
In the case at hand, MSHA takes the position that
Mr. Wilson comes within the section 48.22Ca)(l) definition of
"miner" for purposes of section 48.23 through 48.30 training
because he was a maintenance or repair worker contracted by
the operator to perform work at the mine for frequent or
extended periods of time. Since I have concluded that Dakco
was engaged in construction work, rather than maintenance or

1291

repair work, it follows that Mr. Wilson's work status was that
of a construction worker, rather than a maintenance or repair
worker.
MSHA's policy guideline No. 2 states that workers performing construction work at a mine which is not operational are
not required to be trained. MSHA's policy states that an
"operational" mine is one which is producing material, or one
in which there is an ongoing regular maintenance shift. A
mine which is not producing material because of miners' vacations is not considered to be operational. In the instant
case, MSHA has conceded that the mine was not producing coal
and was not operational during the vacation period from
July 25 through August 7, 1987, and Mr~ Kirchartz confirmed
that no coal was being processed during this vacation period
{Tr. 39).
Inspector Volek conceded that when he was at the
mine, no coal was being produced, and he did not consider the
mine to be operational {Tr. 111). He further conceded that if
an employee were engaged in construction work when the mine
was not operational, he would not require training {Tr. 114).
MSHA's counsel also agreed with Mr. Volek's position.
MSHA's policy guideline No. 3 requires only hazard training under section 48.31, for independent contractor workers
performing maintenance or repair work on an infrequent or
irregular basis. If such workers are employees of the operator, comprehensive training is required. Guideline No. 4
requires comprehensive training for workers performing maintenance or repair work on a frequent or regular basis regardless
of whether the mine is operational or not. MSHA's policy
states that "work performed on a frequent basis" is work performed for more than 5 consecutive working days.
Insofar as Mr. Wilson is concerned, Inspector Fetty had
no knowledge as to the nature of his work, nor did he know how
long Dakco had been at the mine performing work. Further, he
did not document the period of time that Mr. Wilson may have
been present at the mine, and the citation which he issued
does not state when Mr. Wilson performed any work at the mine.
As noted earlier, although the parties stipulated that
Mr. Wilson was working at the plant "during July 1987," the
only evidence establishing the number of days he was performing work is the citation issued by Mr. Fetty on July 31, 1987,
which reflects that Mr. Wilson was withdrawn on that day, and
irrunediately returned to work after he w~s trained that same
day. Dakco's pretrial responses to interrogatories reflect
that Mr. Wilson performed work at the plant "during the period

1292

including July 29 and 31, 1987." Under all of these circumstances, -and based on the available evidence, I can only conclude that the record establishes that Mr. Wilson at best
performed work at the mine on 2 days when the mine was not
operational. I find no evidentiary support for any conclusion
that Mr. Wilson was a worker performing work for more than
5 consecutive days.
In view of the foregoing, and on the basis of my findings
and conclusions that Mr. Wilson was an independent contractor
construction worker, who was not regularly exposed to any mine
hazards, rather than a maintenance or repair worker regularly
exposed to any mine hazards, or a maintenance or repair worker
working at the mine for frequent or extended periods, or a
worker working at the mine which was operational, I conclude
and find that MSHA has failed to establish by a preponderance
of any credible testimony or evidence that Mr. Wilson was a
"miner" within the definition of section 48.22(a)(l), or that
he required the comprehensive training mandated by the cited
section 48.25(a). Under the circumstances, I conclude and
find that MSHA has failed to establish a violation, and the
citation IS VACATED.
ORDER
In view of the forgoing findings anu conclusions, IT IS
ORDERED THAT:
1.

Dakco's Contests ARE GRANTED.

2. The contested section 104(a) Citation
Nos. 2894879 and 2902509, ARE VACATED.
/~·Jf
,/

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-

.

..,. ·~George/"A.
Adminfstrative Law Judge

1293

Distribution:
Ross Maruka, Esq., 221 Washington Street, Fairmont, WV
26554-3165 ·ccertified Mail>
Mark D. Swartz, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
/fb

1294

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

SEP 231988
STANLEY BAKER.

DISCRIMINATION PROCEEDING
Complainant

v.

:

KENTUCKY STONE COMPANY,
Respondent

Docket No. KENT 87-142-D
Pulaski Plant

DECISION
Appearances:

Philip P. Durand, Esq. and Wendy Tucker, Esq.,
Ambrose, Wilson, Grimm & Durand, Knoxville,
Tennessee, for Complainant;
John G. Prather, Jr., Esq., Law Offices of John G.
Prather, Jr., Somerset, Kentucky, for Respondent.

Before:

Judge Weisberger

On July 28, 1988, a Decision was issued in which it was
found that Complainant had established a cause of action under
section 105Cc> {the Act). The Decision contained an Order
directing the Complainant to file a statement, within 20 days of
the Decision, indicating the specific relief requested. The
Order further provided that Respondent shall have 20 days to
reply to Complainant's statement. It was further provided that
the Decision was not to be final until a further order was issued
with respect to Complainant's relief.
On August 15, 1988, Complainant filed a request for specific
relief, which set forth the following requested relief:
1.

Net back wages to August 22, 1988

$23,168.00

2.

Litigation Expenses Cother than #3)

$ 2,034.00

3.

Attorney's fees to August 22, 1988

$17,871.00

4.

Interest*
Interest on net back wages
Interest on net insurance damages
Total interest on damages

5.

$ 5,821.00
$
547.00
$ 6,368.00

$52.00/year bonus given each year for wearing steel tip
boots.
($52.00 x 3 years)
$
156.00

1295

6.

Reinstatement in his former position at Kentucky Stone
as a front-end loader operator, together with all the
accompanying benefits and privileges.

7.

Reinstatement as well as back contribution to the
pension plan at Kentucky Stone, such that the Plaintiff
will be afforded the same beneiits and rights he would
have had if he had not been fired.

8.

Net increase in health insurance expenses incurred as a
result of the higher costs of insurance provided at
Elmo Greer & Sons
·
$ 2,890.00

9.

Any safety bonuses paid for
1988.

th~

years 1986, 1987, or

*By agreement of the Parties, interest will be computed
at a stated rate of 10 percent simple interest per
annum.
On August 22, 1988, Respondent filed a Response to
Complainant's Request for Specific Relief, in which Respondent
requested itemization of back wages, litigation expenses,
attorney's fees, and equitable relief. On August 25, 1988, in a
telephone conference call initiated by the undersigned with
Counsel for both Parties, it was agreed that Complainant would
furnish Respondent with the requested itemization. On
September 1, 1988, Complainant filed an Amendment to Request for
Specific Relief, which set forth an itemization and computation
of back wages, attorney's fees, and litigation expenses. On
September 2, 1988, an Order was entered allowing Respondent until
September 12, 1988, to respond to Complainant's Amendment to
Request for Specific Relief. To date, Respondent has not filed
any such response.
Accordingly, I conclude that Respondent does not challenge
the Specific Relief requested, and I find, such relief to be
reasonable and justified.
ORDER
Based on the record in this case, it is ORDERED that:
1. The Decision issued July 28, 1988, is CONFIRMED, and is
now FINAL.
2. Respondent shall, within 30 days of this Decision, pay
Complainant:

1296

a. Net back wages to August 22, 1988, in the amount of
$23,168.00. Respondent shall also pay Complainant back pay, at
the rates set forth in Complainant's Amendment to Request for
Relief for the period August 23, 1988, until Complainant is
reinstated at his former job.
b. Recoupment of litigation expenses to August 22,
1988, in the amount of $1,751.00.
c.
$18,564.00.

Attorney's fees to August 22, 1988, in the amount of

d. Interest in the amount of $6,368.00 to August 22,
1988. In addition, Respondent shall pay Complainant interest, at
the rate set forth in Complainant's Amendment to Request for
Relief, for the period from August 23, 1988, until Complainant is
reinstated at his former ]Ob.
e. Past bonuses missed in the amount of $156.00 for
wearing steel tip boots.
f.
Net increase in health insurance expenses incurred
as a result of the higher cost of insurance provided at Elmo
Greer & Sons in the amount of $2,890.00.
g.

Any safety bonuses paid for the years 1986, 1987,

and 1988.
3. Respondent shall, within 5 days of this Decision,
reinstate Complainant to his former position at Kentucky Stone as
a front-end loader, together with all the accompanying benefits,
privileges, and shall provide back contributions to the pension
plan at Kentucky Stone such that Complainant will be afforded the
same rights he would have had had he not been fired.

~~

Avram Weisberger
Administrative Law Judge
Distribution:
Wendy F. Tucker, Esq., Ambrose, Wilson, Grimm & Durand, Valley
Fidelity Bank Building, P. O. Box 2466, Knoxville, TN 37901-2466
(Certified Mail)
John G. Prather, Jr., Esq., P. O. Box 106, 38 Public Square,
Somerset, KY 42501 (Certified Mail>
dcp

1297

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

SEP 23\988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MHSA),
Petitioner

.
.

CIVIL PENALTY PROCEEDING
Docket No. PENN 88-62-M
A. C. No. 36-04243-05506

v.
Pocono Quarry & Plant
EUREKA STONE QUARRY, INC.,
Respondent
DECISION
Appearances:

James E. Culp, Esq., Office of the Solicitor,
u. s. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary;
John T. Kalita, Jr., Esq., Eureka Stone Quarry,
Inc., Philadelphia, Pennsylvania, for the
Respondent.

Before:

Judge Weisberger

Statement of the Case
On January 19, 1988, the Secretary. (Petitioner) filed a
Petition for Assessment of Civil Penalty for an alleged violation
by the Respondent of 30 C.F.R. § 56.320~. Respondent filed its
Answer on March 2, 1988. Pursuant to notice, the case was heard
in Philadelphia, Pennsylvania, on March 25, 1988. Robert L.
Carter and Steve Moyer, Jr., testified for the Petitioner. James
Cliff, James L. Gower, and Barry Lutz testified for the
Respondent.
Petitioner filed its Propo~ed Findings of Fact and
Memorandum of Law on August 1, 1988, and Respondent filed its
Proposed Findings of Fact, Conclusions of Law, and Memorandum of
Law on July 29, 1988. Time was allowed for Reply Briefs, but
none were filed.
Stipulations
The Parties entered into the following stipulations as contained in Respondent's Pretrial Statement:
1. Pocono Quarry and Plant Mine (hereinafter referred
to as "Pocono Quarry") is owned and operated by Eureka
Stone Quarry, Inc., a Pennsylvania Corporation with
off ices at Pickertown and Lower State Roads, Chalfont,
Pennsylvania.

1298

2. Pocono Quarry is subject to the provisions of the
Federal Mine Safety and.Health Act of 1977.
3. In the 2 year period prior to May 1987, Pocono
Quarry had zero paid violations of the standards
contested in this case. The size of the operation is
that the Pocono Quarry employs 25 employees. The
annual production of Eureka Stone Quarry is approximately 304,903 tons; the annual production of Pocono
Quarry is approximately 57,562 tons.
4. The Administrative Law Judge has jurisdiction over
this matter.
5.

The Respondent operates nine mines.

6. The authenticity of the exhibits to be offered at
hearing is hereby stipulated. No stipulation is made
as to the facts asserted in such exhibit.
7. The subject of the Citation and Termination were
properly served on a duly authorized representative of
the Secretary of Labor upon agents of Eureka Stone
Quarry, Inc. as to the dates, time and places stated
therein and may be admitted into evidence for the
limited purpose of establishing their issuance, but not
for the truthfulness or relevance of any statement
asserted therein.
8. The alleged condition was abated within the
required time.
9. The imposition of a proposed penalty by the
Administrative Law Judge will not affect Respondent's
ability to continue in business. However, Respondent
does not stipulate to the appropriateness of the imposition of any penalty.
Issues
1. Whether the Citation was so vague as to have denied
Respondent due process.

1299

2. Whether the Respondent violated 30 C.F.R. § 56.3200, and
if so, whether the violation was of such.a nature as could significantly and substantially contribute to the cause and effect of a
mine safety ~r health hazard.
If section 56.3200 has been violated, it will be necessary to determine the appropriate civil
penalty to be assessed in accordance with section llOCi> of the
Federal Mine Safety and Health Act of 1977.
Regulations
30 C.F.R. § 56.3200 provides as follows:
Ground conditions that cerate: a hazard to persons
shall be taken down or supported before other work or
travel is permitted in the affected area. Until
corrective work is completed, the area shall be posted
with a warning against entry and, when left unattended,
a barrier shall be installed to impede unauthorized
entry.
Citation
Order No. 2851904, issued on May 29, 1987, provides as
follows:
A section of high wall on the East face had loose
and fractured rock throughout the top half of the high
wall. The rock appeared it could slide out and down
the face into the shovel that was digging under it
(56.3131). The high wall was approximately 50 ft high.
The loose fractured rock extended approximately 30 ft
wide, at the top of the face on the high wall. The
high wall was a working face where the Biryrus crib
shovel F-614, and three quarry haul trucks had previously worked (56.3200).
Findings of Fact and Conclusions of Law
Robert L. Carter, an Inspector for the Mine Safety and
Health Administration, testified that on May 29, 1987, in the
course of an inspection of Respondent's Pocono Quarry and Plant,
he observed, in the muck pile of the highwall, over hanging
material which he described as a very large boulder that would
not fit in a 35-ton truck, and other large material. He observed
a shovel operator, James L. Gower, approximately 5 feet from the
face digging material from the face, and below the overhang. He
testified that he observed rocks sliding down the pile when Gower
dug, and opined that further digging underneath the material that
he was concerned about, would cause it to slide down, causing
injury to those in the area.
Steve Moyer, Jr., an Inspector for
the Mine Safety and Health Administration, essentially
corroborated Carter's opinion with regard to the hazard of the
conditions observed by Carter. Carter further testified that

1300

testified that when he approached Gower and told him the he was
working under a dangerous condition, and asked him if he was
aware of it, Gower indicated in the affirmative. Carter
testified that Gower said he realized that there was a dangerous
rock that could come down on him.
In essence, it is Respondent's position that it was not
afforded due process, inasmuch as the Citation in question
describes the hazardous condition as being located at the top of
the face on the highwall, whereas Carter's testimony placed the
condition in the muck pile. Respondent argues that due process
was denied, as· it prepared its defense based on the condition of
the highwall rather than the condition of the muck pile.
·1
Respondent further asserts, in essence, that it was irrevocably
prejudiced by the failure of the Citation to properly describe
the location of the hazardous condition, as the muck pile itself
was quarried and no longer available for its testing and measurement.
The rocks in question were, as indicated by Carter, located
in the muck pile. Carter also recognized the difference in definition between a highwall and a muck pile, and appeared to agree that
to be "technical" the Citation should have referred to the muck pile.
(Tr. 47) I find that the language of the Citation in its entirety
is specific enough to provide notice of the location of the rocks as
depicted in Government Exhibits 2, 3, 4, and 6. Additionally, I
find that the wording of the Citation has not prejudiced the
Respondent, as it has not been established that it prevented
Respondent from defending against the Petition herein. The evidence
fails to establish that Respondent was not apprised of the alleged
hazardous material in question. Barry D. Lutz, Respondent's
driller, was working on the highwall on the date in question, and
indicated there was no loose or unconsolidated material on the highwall, and that there was not any rock on the face that appeared to
be in danger of slipping down. Thus, Lutz may not have had knowledge of the location of the cited material. However, he was not
one of Respondent's managers, and there is no evidence he had any
conversations with Carter with regard to the latter's finding of a
dangerous condition. In contrast, Carter testified he discussed the
condition with Joe Less, Respondent's Superintendent, and had a
"long discussion" with Respondent's Manager, James Cliff. (Tr. 69)
The former did not testify, and the latter (Cliff-Y-, did not state
that he had no notice of the location of the alleged hazardous rocks.
Indeed, although he opined there was no danger, he saw some large
rock when viewing the face and indicated the highwall had loose
material and was fractured. His testimony further indicates he was
aware of large pieces of rock which he thought were on the muck pile
not attached to the highwall.
(Tr. 125, 126) Also, James c. Gower,
Respondent's Shovel Operator, although he denied that he told Carter
he was aware he was working under a dangerous condition, he nonetheless indicated that although the highwall did not have loose rock,
there was fractured rock. Also, in its Response filed on March 2,
1988, Respondent manifested that it had notice of the location of

1301

the rocks in question, as it indicated that the "mass of rock" was
not in danger of falling and that attempts were made to scale it
back. This can only refer to the rocks in question, as there is no
evidence that any large loose rocks we~e on the highwall.
According to Cliff, the conditions herein were blown down
approximately 2 weeks after the citation was written. Further,
pictures indicating the location of the rocks in question were taken
by Petitioner 4 or 5 days after the Citation was issued. Thus, any
ambiguity with regard to the location of the Complainant of
conditions could here been ascertained with certainty by way of
pretrial discovery.
(I have examined these pictures and conclude
that GX 2 and GX 3, provide a depiction of the relative size of the
rocks in question compared to the two men in the pictures).
Respondent asserts, in essence, that inasmuch as, when it was
cited, it had no notice of the correct location of the rocks in
question, it lost its right to a defense as it was unable to get
" ••• information, tests, measurements, or the like regarding the
muck pile." (Respondent's Memorandum of Law, Page 6). Respondent
has not indicated with any specificity the information or tests it
would have taken, and how these would have related to its defense.
Indeed, I find Respondent's witnesses provided their opinion with
regard to the lack of hazard from rocks in the muck pile.
James Cliff, Respondent's Manager, testified that he looked
at the face approximately 7:15 on May 29, 1987, and that when
viewing the face, there was "some large.rock" and "loose and
fractured rock on top of the highwall," ·(Tr. 124, 125), but that he
did not feel there was any danger, and that it did not appear that
the material will slide out. He was asked whether in his opinion
anyone was in danger, and he testified that he did not feel so "at
that particular time," (Tr. 126), and that his opinion has not
changed. Barry D. Lutz, Respondent's Driller, who was working on
the highwall on May 29, 1987, provided his opinion that there was
no danger of any rock falling on the shovel, and that no one was in
danger from any condition. Also, Gower, when asked on directexamination whether it appeared that the loose fractured rock on
the muck pile could slide out, stated "not out of the ordinary."
(Tr. 140) He indicated that there was no indication of instability
which would have dislodged the rock. Gower also indicated on
direct-examination that he did not tell Carter that he was fearful
that a rock would fall and did not say that he fert endangered.
Gower stated that Carter told him that he (Gower) was in danger,
but he Gower did not tell Carter he felt endangered. However, I
note that on cross-examination, when asked whether he told Carter
he was watching the rocks above him, Gower testified that he did
not recall that specific statement and "couldn't you tell exactly
what was said."
(Tr. 147)
Further, in support of its contention that the material
observed by Carter was not in any danger of sliding down,
Respondent refers to testimony, indicatin~ that on May 29, 1987,

1302

a crane fell off the highwall and ran over the boulder observed
by Carter without dislodging it.
(The testimony was in conflict
between Carter and Lutz, with regard to the path taken by the
crane falling off the highwall. I have adopted the version
testified to by Lutz as he, not Carter, actually observed this
mishap). Carter in cross-examination, agreed that this provides
an indication that the boulder in question would not slide.
I find the opinion of Carter and Moyer with regard to the
danger posed by the material in question to be credible, inasmuch
as it appears likely that continued shoveling 1/ would have
deprived the material of its support and hence-it would have
fallen down. 2/ In contrast, neither Cliff, nor Lutz, nor Gower
provided any basis to support their opinion that the material in
question was not in danger of falling. Also, I note that
although the falling crane did not dislodge the material in
question, this does not negate the opinion of Carter and Moyer
that continued digging by the shovel operator would have deprived
the material in question of support, thus causing it to slide or
fall. Therefore, based upon all the above, I conclude that the
conditions observed by Carter, as testified to, created a hazard
to persons within the purview of Section 56.3200, supra, and
hence, this section has been violated.
In the opinion of Carter and Moyer, continued shoveling
below the cited material would cause it to fall and that the
shovel operator and truck driver working in the area would be
exposed to the danger of being hit with falling material. Carter
and Moyer further testified, in essence, that there was a
reasonable likelihood of a serious injury or a fatality should
the cited material fall.
I do not find any significant evidence
of record to contradict the opinions of Moyer and Carter, that
there was a reasonable likelihood that the hazard of the
materials sliding down the muck wall would result in an injury of
reasonably serious nature.

!/

The transcript reference cited by Respondent on pages 8 and
10 of its Memorandum of Law do not support the proposition that
Resoondent had no intention to under1nine the cited material.
Ind~ed Cliff indicated he agreed it was his inten"tion to remove
as much of the muck pile as possible prior to shooting the top of
the pile down (Tr. 134). Also, Gower indicated that he was
planning on digging in the muck pile in an area that is depicted
as below the material in question (Tr. 145, GX 4).

2/ I accepted Carter's opinion that with further digging underneath the material in question could fall down, as it is based on
the laws of gravity. It thus is irrelevant that he is not a
geologist, nor licensed blaster, nor has experience in the
reduction of a mountain.

1303

Although Respondent's witnesses essentially indicated that
generally a muck pile contains loose fractured rock, the material
in question, as depicted. in GX-2, GX-3, and GX-6, posed a hazard
due to their.size, particularly in relation to the other material
in the muck pile. As discussed, infra, I have concluded that
with continued digging by the shovel operator, there was a
distinct hazard of the cited material coming loose· and falling
down the slope. I adopt the version testified to by Carter, due
to observations of his demeanor, and conclude, that Gower, the
shovel operator, was working under the overhanging cited material
in very close proximity to the face. Also present in the area,
at intervals of approximately 3 to 4 minutes, was a truck driver.
I conclude that with continued digging as planned, that there was
a reasonable likelihood of the cited rocks falling and resulting
in an injury of a reasonably serious nature.
For the above reasons, I conclude that the gravity of the
violation herein was relatively high. Further, Cliff had
indicated essentially that approximately 7 to 7:15 on the morning
of May 29, 1987, he inspected the face of the highwall. Gower
indicated on cross-examination that when he started to dig at
7:00 in the morning he inspected the top.of the highwall. Carter
testified that Gower told him that he was aware of the materials
cited by Carter. I find this testimony not to have been rebutted
by Gower who indicated on cross-examination that he could not
recall exactly what was said between him and Carter. Thus, I
find that Respondent was aware of the condition cited by Carter,
and should have been aware of the hazards posed by these conditions as testified to by Carter and Moyer.
I thus find that
Respondent exhibited negligence to a relatively high degree.
I
have also considered the other factors contained in section llOCi)
of the Federal Mine Safety and Health Act of 1977, as stipulated to
by the Parties. Based upon all of the above, I conclude that a
penalty of $1,000, as proposed, is propei for the violation herein.
ORDER
It is ORDERED that the Respondent pay the sum of $1,000,
within 30 days of this Decision, as a Civil Penalty for the violation found herein.

~~

Avram Weisberger
Administrative Law Judge

1304

Distribution:
James E. Culp, Esq., Office of the Solicitor, u. s. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
John T. Kalita, Jr., Esq., Eureka Stone Quarry, Inc., 9119
Frankford Avenue, Philadelphia, PA 19114 (Certified Mail)
dcp

1305

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM ?80. 1244 SPEER BOULEVARD
DENVER CO 80204

SEP 261988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
INDUSTRIAL CONSTRUCTORS
CORPORATION,
Respondent

CIVIL PENALTY PROCEEDING

.
.
.

Docket No. WEST 87-206-M
A.C. No. 05-03998-05506 NYO
Summitville Mine

DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Mr. James A. Brouelette, Industrial Constructors
Corporation, Missoula, Montana,
pro se.

Before:

Judge Cetti
Statement of the Case

This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. Section 801 et seq.,
(Mine Act).
The Secretary of Labor on behalf of the Mine Safety
and Health Administration, charges the respondent, Industrial
Constructors Corporation (ICC), the operator of the Summitville
Mine with the violation of 30 C.F.R. § 56.4402 a mandatpry safety
standard promulgated by the Secretary of. Labor.
The proceeding was initiated by the Secretary with the
filing of a proposal for assessment of civil penalty. The
operator filed a timely appeal contesting the existence of the
alleged violation and the amount of the proposed civil penalty.
An evidentiary hearing was held on these.issues at Denver,
Colorado.
Oral and documentary evidence was presented and the
matter submitted for decision.
The parties waived filing of
briefs.
REVIEW OF EVIDENCE AND FINDINGS
This Summitville Mine is an open pit,,heap leach gold mining
operation located in Summitville, Rio Grande County, Colorado.
The mine was owned by Summitville Consolidated Mining company

1306

Inc.
Industrial Constructors Corporation (ICC) was under
contract to complete the mining phase. ·
Approximately 325 employees worked two-eleven hour shifts,
seven days a week performing the mining tasks and three eight
hour shifts, seven days a week milling.
During the early morning hours of September 5, 1986, at
approximately .2 a.m. an accident, involving an explosion and
fire, occurred at the bulk fuel storage tank area of the mine.
The accident resulted in serious injury to the driver of ICC's
fuel tank truck and injury to another miner who came to the truck
driver's assistance.
At the time of the accident the driver was replenishing the
supply of diesel in the large supply tank of his fuel tanker
truck.
He was using a Honda draft pump, driven by a 5 h.p.
internal combustion gasoline engine, to pump the diesel fuel from
one of the large storage tanks into the 3,000 gallon capacity
tank of the fuel truck. Suddenly there was an explosive fire
which engulfed the driver causing serious injuries.
MSHA investigated the accident. The preliminary investigation started September 5, 1986. It commenced its on-site
investigation about noon Monday September 8, 1986 and completed
it on September 10, 1986. Its primary concern was to determine
the ignition source of the fire.
MSHA concluded in its
investigation report that the ignition source of the fire could
not be determined.
At the hearing MSHA Inspector Simpson testified that even
though they could not determine the ignition source of the fire
they did establish that the fire started around the gasoline
powered Honda pump while it was being used to pump diesel from
the storage tank into the supply tank of the fuel truck.
When the MSHA investigators first saw the Honda pump on
September 8, 1986 it was in a wheelbarrow used to move it from
tank to tank and it was located underneath a box-like protective
cover approximately 20 feet from where the pump was in use when
the fire broke out. The pump had been taken out of service,
"tagged" and placed underneath the cover to protect it from the
elements.
Respondent had "tagged it out", shortly after the
accident.
When MSHA commenced its on-site inspection on September 8th
it took a photograph of the pump.
This photograph, Exhibit P-4,
shows the engine of the pump as it appeared when first observed
by the MSHA investigators.
They noticed that the pump's engine
did not have the manufacturer's control switch. There was just
an open box-like area where the manufacturer's control switch
would normally be located. MSHA investigators looked but were
1307

unable to find any other "on/off" switch. MSHA Inspector Simpson
stated this lack of switch was unusual.
He testified that where
there was no "on/off" switch on an engine such as this the normal
procedure for shutting off the engine would be to either pull a
spark plug wire or possibly "flood out", the engine. It was later
determined that the engine had been turned on and off by the use
of a toggle switch.
It is undisputed that sometime after the
Friday morning September 5th accident and before the commencement
of the on site investigation on Monday September 8th, that some
unknown person had removed this toggle switch from the engine of
the Honda pump •
This alteration of the accident scene was determined through
the use of a photograph taken and provided by ICC's management.
The photograph was taken by ICC's project superintendent on
September 6th the day after the accident.
The negative was given
to MSHA by ICC's safety director on September 22nd but was not
developed by MSHA until the first part of October. A comparison
of that photograph, Exhibit P-3, with the photograph taken by
MSHA when it commenced its on-site inspection (Exhibit P-4)
plainly shows a toggle switch that was not present at the time
the on-site inspection commenced.
On November 12, 1986 MSHA issued its Section 104(a) Citation
No. 2638787 charging ICC with a violation of 30 C.F.R. § 50.12.
The citation reads as follows:
On September 5, 1986 an accident occurred at the Summitville
Mine.
The accident scene was altered, by removing a toggle
switch on the Honda Engine involved in the accident. Photographs taken by the company after the accident show this
switch. The switch was missing from the Honda engine prior
to an on-site investigation by MSHA.
This action by the
company is in direct violation of 103(j) of the Act. The
switch in question could possibly have direct bearing on
the possible cause of this accident.
30 C.F.R. 50.12 provides as follows:'
Unless granted permission by a MSHA District Manager or
Subdistrict Manager, no operator may alter an accident site
or an accident related area until completion of all investigations pertaining to the accident except to the extent
necessary to rescue or recover an individual, prevent or
eliminate an imminent danger, or prevent destruction of
mining equipment.
Stipulations
1.
Industrial Constructors Corp., respondent, is the
operator of the Summitville Mine located at Rio Grande County,
Colorado.

1308

2.
The operations and products of the mine affect commerce,
its products enter commerce and accordingly, the mine and its
operators are subject to the provisions of the Act.
3. The undersigned ALJ has jurisdiction to hear and decide
this case.
4.
Respondent is a large operator that employed approximately 200 people at this mine site at the time of the alleged
violation and overall employed approximately 700 people.
5. This is the first citation issued to this operator for
allegedly altering an accident site.
Respondent presented evidence that its management fully
cooperated in MSHA's investigation of the accident.
In addition,
the operator had outside professionals (Rampart Investigators
Inc.} conducted a "cause and origin investigation" regarding
theSeptember fire and explosion.
Rampart's investigators
reportedthat a cigarette butt was found in the immediate area and
that this butt was the same brand of cigarettes the victim
Ctruckdriver) had on his person at the time of the accident.
Rampartinvestigation Inc. concluded that the probable source of
ignition was the discarding of the cigarette butt into the
gasoline fumes or spilled gasoline on the ground next to the
tanker truck.
Discussion and Further Findings
Irrespective of the cause of the accident the evidence
establishes that the accident scene was altered by the removal of
a toggle switch from the Honda gasoline engine that powered
thepump involved in the accident.
In addition, the undisputed
testimony of the MSHA mine inspector established the fact that
this alteration of the accident scene hampered the investigation.
No evidence was presented as to who removed the toggle
switch from the Honda engine. A comparison of the two
photographs Exhibit P-3 and Exhibit P-4 clearly shows that the
toggle switch was removed from the Honda engine between the time
of the accident occurred on September 5th and the time MSHA
commenced its on-site inspection on September 8th. During that
time the Honda engine was under the control of ICC in a secured
area of the mine site approximately 200 yards south of the main
guard house. Approximately 200 employees had access to the Honda
engine at that site.
Evidence was presented that before the accident the original
design of the Honda engine had been modified by wiring in the

1309

toggle switch.
The MSHA inspector testified that that this was a
very unsafe modification. From the evidence presented and the
facts established and the reasonable inferences that can be drawn
from them, 1t is found that the accide~t scene was altered by an
employee or someone under the control of the respondent.
Respondent was responsible for taking the measures needed to
prevent this deliberate alteration of the accident scene.
I find
that respondent was negligent in its failure to prevent the
alteration before MSHA commenced its on-site investigation.
Respondent argued that it had in effect preserved the
evidence by taking the photograph of the Honda engine that shows
the toggle switch.
It points to the fact that its project
superintendent took the photograph of the Honda engine the day
after the accident and (22 days later) it gave the negative to
MSHA.
The photograph clearly shows the toggle switch dangling
along side the engine with open contacts where the terminal wires
were attached. This contention that the photograph preserved the
evidence must be rejected in view of the undisputed testimony of
MSHA's investigator that the removal of the toggle switch
hampered the investigation. It is found that the accident scene
was altered before MSHA could complete its investigation and that
this was a violation of 30 C.F.R. § 50.12.
PENALTY
With respect to the penalty for Citation No. 2638787 the
Mine Safety and Health Administration under 30 C.F.R. § 100.5
elected to waive the regular assessment formula and decided to
make a special assessment in accordance with 30 C.F.R. § 100.5.
In its narrative findings for a special assessment MSHA found
that the gravity of the violation was "non-serious", that the
violation resulted from the operator's negligence, and that the
violation was abated within a reasonable period of time.
The
special assessment report concluded with a statement that "based
on the six criteria set forth in 30 C.F.R. § 100.3(a) and the
information available to the Office of Assessments, it is
proposed that the Industrial Constructors Corporation be assessed
a civil penalty of $250.00."
I agree with the finding in the narrative report of MSHA's
Office of Assessments that the gravity of the violation was non
serious.
I also find the violation resulted from the operator's
negligence which I evaluate as low under' the facts and circumstances of this case. Arguably it is only with hindsight that
respondent would have reason to suspect that someone would alter
the accident scene.
At the hearing Petitioner argued that the alteration was a
"purposeful" alteration and that the penalty for the violation
should be $5,000.
I have determined that. the penalty should be

1310

more than the $250 initially proposed by MSHA.
The violation
could contribute to another fire or explosion. Complete accident
investigations are necessary to determine the cause of an
accident so corrective action can be taken to prevent another
occurrence. However, in view of my findings on gravity and
negligence ~nd on the undisputed testimony that Respondent's top
management fully cooperated in the investigation to determine the
cause of the accident, a $5,000 penalty would be excessive.
Based on carefully consideration of the entire record and the six
criteria set forth in 30 C.F.R. § 100.3Ca>, I find that the
appropriate civil penalty in this case for the violation of 30
C.F.R. § 50.12 as alleged in Citation No. 2638787 is $500.00.
Citation No. 2638556
Respondent moved to withdraw its contest of Citation No.
2638556 which alleges a violation of 30 C.F.R. § 56.4402 and
agreed to pay the $46.00 proposed penalty. The motion is granted
and the $46.00 proposed penalty is approved.
Conclusions of Law
Based upon the entire record and the findings made in the
narrative portion of this decision, the following conclusions of
law are entered:
1.
§

2. The respondent violated the provisions of 30 C.F.R.
56.4402, a mandatory safety standard.
3.

§

The Commission has jurisdiction to decide this case.

The appropriate penalty for this violation is $500.00.

4.
The appropriate penalty for the violation of 30 C.F.R.
56.4402, alleged in Citation No. 2638556, is $46.00.

ORDER
Citation Nos. 2638556 and 2638787 are affirmed and
Industrial Constructors Corporation is ordered to pay civil
penalties totaling $546.00 within 30 days of the date of this
decision.

t F. Cetti
nistrative Law Judge

1311

Distribution:
James H. Barkley, Esq., Office of the Solicit"er, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Mr. James A. Brouelette, Industrial Constructors Corporation, 101
International Way, Missoula, MT 59802 (Certified Mail)

/bls

1312

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

SEP 271988
ROCHESTER & PITTSBURGH COAL CO.,:
Contestant
:

CONTEST PROCEEDING
Docket No. PENN 88-194-R
Citation No. 2879240; 4/21/88

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

.
.

Greenwich Collieries
No. 2 Mine
Mine ID 36-02404

DECISION
Appearances:

Before:

Linda M. Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, PA, for
Respondent;
Joseph A. Yuhas, Esq., Rochester & Pittsburgh
Coal Company, Ebensburg, PA, for Contestant.

Judge Fauver

In this proceeding under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et~' Rochester & Pittsburgh Coal
Company seeks to vacate a citation and the Secretary seeks a
civil penalty for the violation cited. The parties stipulated at
the hearing that the Secretary's petition for a civil penalty may
be adjudicated in this proceeding.
Based upon the hearing evidence and the record as a whole, I
find that a preponderance of the substantial, reliable and
probative evidence establishes the following:
FINDINGS OF FACT
1. Greenwich Collieries No. 2 Mine is operated and managed
by Rochester & Pittsburgh Coal Company.
2.
In 1979, the Mine Safety and Health Administration
(MSHA) of the United States Department of Labor notified Leonard
Edwards, a miner at such mine, that his X-ray report was positive
for pneumoconiosis.
3.
In April, 1985, due to a layoff at the mine, there was a
realignment of the work force.
Edwards, a shear operator, was
scheduled to be transferred from Greenwich South Mine to
Greenwich North Mine. He requested that he remain at the South
Mine and was reclassified as a general laborer at the South Mine
with a reduction in hourly pay from $14.41 to $13.31. When he

1313

learned of the pay reduction, Edwards pr,oduced the 1979 MSHA
letter, and mine management restored his pay to $14.41 per hour.
Both Edwards and mine management apparently asssumed that Edwards
was a Part 90 {Title 30, C.F.R.) miner in April, 1985.
4. However, Leonard Edwards did not exercise his Part 90
option until March 1, 1988, when he signed a "Notice of E-xercise
of Option" form and mailed it to MSHA.
5. MSHA received Edwards' signed form on March 3, and
notified Rochester & Pittsburgh Coal Company of ~dwards' status
as a Part 90 miner in a letter ~eceived by_the company on March
14. The letter stated, inter alia:
"This letter is to inform
you that the miner named above has exercised the option" and that
"Part 90 requires that each Part 90 miner be compensated at not
less than the regular ra~e of pay received by that miner
immediately before exercising his or her option, or if ever
transferred, at not less than the regular rate of pay immediately
before the transfer."
6. At least as early as December, 1987, mine management
knew that Edwards had not yet exercised his option. as a Part 90
miner.
7.
Edwards received MSHA's notification of his Part 90
status on March 12 and on March 14, his next work day, he told
his foreman that he was exercising his option to work in a less
dusty part of the mine. His foreman told him that his wages
would probably be reduced if he transferred to a less dusty area.
Edwards transferred March 14 and on March 15 his pay rate was
reduced from $15.81 to $14.78 per hour.
8. After investigating Edwards' comptaint of a pay
reduction, MSHA issued Citation No. 2879240 on April 21, 1988.
DISCUSSION WITH FURTHER FINDINGS
Edwards exercised his option under Part 90, 30 C.F.R. on
March 1, 1988, by mailing a signed "Notice of Exercise of Option"
form to MSHA. MSHA acknowledged his status as a Part 90 miner by
a notification letter received by Rochcester & Pittsburgh Coal
Company on March 14 and received by Edward~ on March 12.
On March 14, Edwards told his foreman that he was exercising
his option to work in a less dusty part of the mine. His foreman
told him that his wages would probably be cut if he transferred
to a less dusty area. Edwards transferred_ to a less dusty area
on March 14 and his wages were cut the next day, from $15.81 to
$14.78 an hour.
His pay rate immediately before he mailed the Exercise of
Option form on March 1, 1988, was $15.81 an' hour and he was

1314

receiving that rate the day (March 14) he told his foreman he was
exercising his option to work in a less dusty area.
Rochester & Pittsburgh Coal Company defends Edwards' pay cut
on the ground that it was done to correct a pay error made back
in April, 1985. It offered some testimony that the decision to
cut his pay to $14.78 an hour was made "on the 10th or 11th of
March" in 1988 (Tr. 115).
Section 90.3 of the regulations provides:
(a) Any miner employed at an underground coal mine or at a
surface work area of an underground coal mine who, in the
judgment of the Secretary of Health and Human Services, has
evidence of the development of pneumoconiosis based on a
chest X-ray, read and classified in the manner prescribed by
the Secretary of Health and Human Services, or based on
other medical examinations shall be afforded the option to
work in an area of a mine where the average concentration of
respirable dust in the mine atmosphere during each shift to
which that miner is exposed is continously maintained at or
below 1.0 milligrams per cubic meter of air. Each of these
miners shall be notified in writing of eligibility to
exercise the option.

* * *
(d) The option to work in a low dust area of the mine may be
exercised for the first time by. any miner * * * by signing
and dating the Exercise of Option Form and mailing the form
to the Chief, Division of Health, Coal Mine Safety and
Health, 4015 Wilson Boulevard, Arlington, Virginia 22203.
(e) The option to work in a low dust area of the mine may be
re-exercised by any miner * * * by sending a written
request to the Chief, Division of Health, Coal Mine Safety
and Health, MSHA, 4015 Wilson Boulevard, Arlington, Virginia
22203. The request should include the name and address of
the mine and operator where the miner is employed.

Cf) No operator shall require from a miner a copy of the
medical information received from the Secretary or Secretary
of Health and Human Services.
Section 90.103(a) provides:
(a) The operator shall compensate each Part 90 miner at not
less than the regular rate of pay received by that miner
immediately before exercising the option under § 90.3 (Part
90 option; notice of eligibility; exercise of option).
Section 90.2 defines a "Part 90 miner" as "a miner •.. who
has exercised the option under .•• § 90.3 •.•• "

1315

In Matola v. Consolidation Coal co:, 647 F.2d 427,430 (4th
Cir. 1981), the court held that "the reg~lar rate of pay is the
dollar rate ~- the rate at which the miner was actually
remunerated for the work he did -- irrespective of his job
classification." In Mullins v. Andrus, 664 F.2d 297,305,310
{0.C. Cir. 1980), the court rejected an interpretation that "a
transferring miner is entitled to receive the rate of pay to
which he had a right immediately prior to transfer" and held that
"the phrase 'regular rate of pay' ••• means the rate at which the
transferring miner was actually and regularly compensated when
the transfer occurred."
I hold that~ when a miner becomes a Part 90 miner the
operator may not go back several years from that date to
change the miner's pay rate to one the operator decides the miner
"should have been" receiving immediately before he became a Part
90 miner. To permit such retroactive changes would have a
chilling effect on the exercise of Part 90 rights. Rochester &
Pittsburgh Coal Company is bound by the pay rate that Leonard
Edwards was actually and regularly receiving immediately before
his exercise of the Part 90 option.
·
Rochester & Pittsburgh Coal Company contends that Edwards
did not become a Part 90 miner until the company received MSHA's
notice of his exercise of the Part 90 option, on March 14.
However, the regulations, § 90.3{d), provide that "the option to
work in a low dust area of the mine may be exercised for the
first time ••• by signing and dating the Exercise of Option Form
and 1nailing the form [to MSHA]." Edwards signed and mailed the
required form on March 1, 1988. It was received by MSHA on
March 3. He became a Part 90 miner on March 1, 1988, and
effective that date he was protected against a reduction of the
pay rate he was regularly receiving immediately before
March 1.
Thus, for the purpose of determining when a Part 90 miner's
pay rate becomes protected against reduction, the effective date
is the date the miner mails a signed "Exercise of Option" form to
MSHA under§ 90.3{d). However, for the different purpose of
determining when liability for a civil penalty occurs, I hold
that a violation subject to a civil penalty can occur only after
the operator receives notice that the min~r is a Part 90 miner.
If an operator reduces a miner's pay rate~fter the miner becomes
a Part 90 miner but before the operator receives MSHA's notice of
the miner's Part 90 status, the operator has a reasonable
opportunity to revoke the pay cut and restore the pay to the rate
the miner had been receiving immediately before exercising the
Part 90 option. Failure to restore the miner's pay to the
correct rate aftar receiving MHSA's notice· of the Part 90 status
would be a constructive pay cut in violation of § 90.103{a) and
subject to a civil penalty.

1316

In this case, the pay cut was direct, and not constructive.
Rochester.& Pittsburgh Coal Company received MHSA's notice of
Edwards' Part 90 status on March 14, 1988. It violated
§ 90.103(a) by reducing his pay rate on March 15.
Considering the criteria for a civil penalty in§ llO(i) of
the Act, I find that the Secretary's proposed civil penalty of
$78 for this violation is appropriate.
CONCLUSIONS OF LAW
1.

The judge has jurisdiction over these proceedings.

2. Rochester & Pittsburgh Coal Company violated 30 C.F.R.
§ 90.103(a) as alleged in Citation No. 2879240.
3. Leonard Edwards is entitled to be restored to the pay
rate he received immediately before his exercise of the Part 90
option on March 1, 1988, plus any pay increases he would have
received thereafter in the employment, and to receive back pay
(the difference between the pay rate he received and the rate he
should have been paid) retroactive to March 15, 1988, with
interest at the rate or rates published by the Internal Revenue
Service for the period involved.
ORDER
WHEREFORE IT IS ORDERED that:
1.

Citation No. 2879240 is AFFIRMED.

2.
Rochester & Pittsburgh Coal Company shall pay a civil
penalty or $78 within 30 days of this Decision.

a)~ ::;-M4¥~

William Fauver
Administrative Law Judge

Distribution:
Joseph A. Yuhas, Esq., ~ochester & Pittsburgh Coal Co., Greenwich
Collieries No. 2 Mine, P.O. Box 367, Ebensburg, PA 15931
(Certified Mail)
Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of
Labor, 14480 Gateway Building, 3535 MarKet Street, Philadelphia,
PA 19104 (Certified Mail)

1317

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

SEP 291988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA) ,
ON BEHALF OF
DONALD J. ROBINETTE,
Complainant

.
.

DISCRIMINATION PROCEEDING
Docket No. VA 87-21-D
NORT CD 87-5

.

v.
BILL BRANCH COAL COMPANY,
INC.,
Respondent

Mine No. 8

.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF JOEY F. HALE,
Complainant

DISCRIMINATION PROCEEDING

.
..

Docket No. VA 87-22-D
NORT CD 87-7

v.
Mine No. 8
BILL BRANCH COAL COMPANY,
INC.,
Respondent

.
DECISION

Appearances:

Patricia L. Larkin, Esq., Office of the Solicitor,

u. S. Department of Labor, Arlington, Virginia, for
the Secretaryi
Robert J. Breimann, Esq., Street, Street, Street,
Scott & Bowman, Grundy, Virginia, for the
Complainants.

Before:

Judge Weisberger

Statement of the Case
On May 20, 1987, the Secretary, on behalf Donald J. Robinette
and Joey F. Hale, filed a Complaint alleging violations of
§ lOSCc>Cl) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 815(c)(l). Respondent filed its Answer on August 20,
1987. On August 28, 1987, an Order was issued consolidating
Docket Nos. VA 87-21-D and VA 87-22-D and setting these cases for
hearing in Kingsport, Tennessee, on December 1, 1987. On
October 28, 1987, Complainants requested a continuance of the

1318

scheduled Hearing as one of their perspective witnesses had
recently undergone surgery, and the request for continuance was
not opposed. On September 2, 1987, Complainants filed a Motion
for Leave to file an Amended Complaint and this Motion was not
opposed. An Order was entered on September 10, 1987, granting
this Motion.
A Hearing was subsequently rescheduled for January 26 - 27,
1988, in Kingsport, Tennessee. Due to the unavailability of a
MSHA Inspector for deposition, the Hearing scheduled for
January 26 - 27, was rescheduled for February 29, and March 1,
1988, in Kingsport, Tennessee. On February 24, 1988, Respondent,
in a telephone call to the undersigned, made a request to compel
Petitioner to produce names of certain witnesses pursuant to a
written interrogatory. In response to this request on
February 24, 1988, a telephone conference call was arranged by
the undersigned with the attorneys for both Parties. In this
conference call the hearing previously set for February 29 and
March 1 was adjourned, and the Parties were requested to file
Memoranda setting forth their position on the issues raised by
Respondent's request. Memoranda were filed on March 7, 1988. On
March 10, 1988, an Order was entered requiring Petitioner to
serve upon Respondent the names, addresses, and telephone numbers
of all witnesses who are not miners, and to file with the
undersigned a statement to be examined in camera containing names
of witnesses who are alleged to be informers, and a statement
setting forth any facts relied upon to establish the informer's
privilege for each of the witnesses alleged to be informers. On
May 2, 1988, an Order was issued, that having examined the statements in camera, the witnesses listed therein were declared to be
informers within the preview of 29 C.F.R. § 2700.59.
Pursuant to notice, the case was rescheduled and heard in
Johnson City, Tennessee, on May 10 - 12. At the hearing, Donald
Joe Robinette, Gary Compton, Fred L. Howery, Franklin Dallas
Perkins, Donald James Morris, Junior Vidis Price, Joey Fred Hale,
Donald Cook, John Kyle Griffith, and Russell Wayne Reynolds
testified for the Complainants. Rexley Ray, Ivan Leon Vandyke,
Charles Lee Boyd, and Doris Allen Nickels testified for the
Respondent. At the conclusion of the Complainant's case,
Respondent made a Motion to strike the Secretary's case and
dismiss the Complaints. After oral argument, this Motion was
denied.
At the conclusion of testimony on May 12, Respondent
requested that the Hearing be adjourned and be rescheduled to
allow it to present two additional witnesses. The case was
subsequently rescheduled for July 13, 1988, in Johnson City,
Tennessee. At the commencement of the rescheduled hearing on
July 13, 1988, Respondent indicated that it had not been able to
locate one of its witnesses, Gary Compton, and it had decided not
to call any other witnesses.

1319

Proposed Findings of Fact and Memorandum of Law were filed
on August 12, 1988, by Complainants, and· by Respondent on
August 15, 1988. A Reply Brief was filed on September 12, 1988,
by Respondent; none was filed by Complainants.
Issues
1. Whether the Complainants have established that they
were engaged in an activity protected by the Act.
2. If so, whether the Complainants suffered adverse
action as the result of the protected activity.
3.

If so, to what relief are they entitled.

DONALD JOE ROBINETTE
In evaluating the evidence presented herein, I have been
guided by the Commission's recent decision. The Commission,
in a recent decision, Goff v. Youghiogheriy & Ohio Coal
Company, 8 FMSHRC 1860 (December 1986), which reiterated the
legal standards to be applied in a case where a miner has
alleged acts of discrimination. The Commission, Goff, supra,
at 1863, stated as follows:
~~
A complaining miner establishes a prima facie case of
prohibited discrimination under the Mine Act by proving
that he engaged in protected activity and that the
adverse action complained of was motivated in any part
by that activity. Pasula, 2 FMSHRC at 2797-2800;
Secretary on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803, 817-18 (April 1981). The operator
may rebut the prima facie case by showing either that
no protected activity occurred or that the adverse
action was not motivated in any part by protected
activity. Robinette, 3 FMSHRC at 818 n. 20. See also
Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59
CD.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983) (specifically approving the
Commission's Fasula-Robinette test).
Protected Activity
Donald Joe Robinette, a coal miner with 23 years experience,
worked for Respondent in 1984, until he was laid off in that
year, and then was rehired in July or August 1986. Robinette
testified that, at various times, he spoke with his foreman at
the time, Russell Wayne Reynolds, about "improving the ventilation" and asked him to speak to the Superintendent, c. L. Boyd,

1320

about this matter.
(Tr. Vol 1, P. 91). He also said that, on
one occasion, between a few days and 3 weeks prior to the time he
was fired, November 21, 1986, he asked Boyd for a curtain to get
more air on the section. In contrast, Boyd indicated that
Robinette never registered a complaint with him with regard to
air or ventilation, nor did Robinette communicate the same
through any other person. Boyd, in general, indicated that he
did not receive complaints from any miners with regard to
insufficient air. He also said that in February 1986, the
brattice was repaired and the air in the section was then measured at 12,000 cubic feet, which exceeded the federally mandated
minimum of 9000 cubic feet. Boyd also said that a larger fan was
installed in March 1986, and that subsequent air readings
indicated air movement of 26,000 cubic feet.
In reconciling the conflict between Robinette and Boyd, I
have concluded, based upon my observations of the witnesses'
demeanor, that Robinette was truthful and that he did indeed ask
Boyd on one occasion for a curtain to get more air on the section.
Also, Reynolds corroborated Robinette's testimony that Robinette
and other men complained to him about the air on the section. I
therefore conclude that Robinette did voice complaints to
Reynolds about the air on the section, and did request a curtain
from Boyd to get more air on the section. I further find these
activities of Robinette to be protected within the purview of the
Federal Mine Safety and Health Act of 1977.
Motivation
Gary Compton, who was the foreman of the section on which
Robinette worked on November 21, 1986, testified that on that
date he worked overtime along with two roof bolters. He said
that while traveling on the scoop he hit a drill which was parked
inby behind a curtain and that the drill did not have its lights
on. Compton, in essence, said that it was not proper for
Robinette to have left the drill behind the curtain with its
lights off, and it was also contrary to Respondent's policy.
Compton said that after he hit the drill he called Respondent's
Superintendent, Boyd, and told him that he had " ••. no further use
for Mr. Robinette on the coal drill."
<Tr. Vol 1, P. 161). Boyd
indicated that Compton told him (Boyd) that as far as he
(Compton) was concerned, Robinette was fired if Boyd "did not
have any thing else for Donald Robinette to do at the mine."
CTr.
Vol III, P. 43).
Boyd further said, in essence, that Compton
told him that Robinette was fired because Robinette had parked
his drill behind the fly curtain and Compton ran into it. Boyd
also said that Robinette was caught sleeping 2 to 3 days prior to
November 21.
Boyd, who had the authority to fire, indicated that when
Robinette came outside, he told Robinette that he did not have

1321

any thing else for him to do and that he would have to fire him.
Boyd said that Robinette got angry, and he (Boyd) asked Robinette
to wait outside and he said to Robinette "we'll work it out."
(Tr. Vol rII, P. 44). Boyd said that Robinette waited approximately 10 minutes and then left. When questioned by Respondent's
attorney, Boyd agreed that there were no other reasons for
Robinette's termination other than what he previously stated, and
that it was not motivated by any other external factor. Boyd
also testified that he never discussed with Compton the need to
fire Robinette.
In contrast, it was the testimony of Robinette that, when he
left the section at the end of his regular shift, and prior to
the commencement of the overtime shift, his drill was parked
halfway under the curtain and the lights were on. Although the
testimony of Rexley Ray appears to corroborate that of Compton,
in that the former indicated that the Robinette's drill was
pretty close to the curtain and there were no lights on, it is
significant to note that Ray observed the drill only after the
accident.
In contrast, Robinette's testimony finds corroboration
in the testimony of Joey Hale that the drill was parked in the
middle of the curtain. I observed Hale and found, based upon his
demeanor, that his testimony was truthful on this point. Also,
Robinette's version finds some corroboration in the testimony of
Donald J. Morris, a roof bolter, who worked overtime along with
Compton on November 21, that prior to the accident, he saw light
coming down the hallway one break back " ••• from something parked
down there."
(Tr. Vol I, P. 227). Accordingly, I adopt
Robinette's version and find that at the end of his shift he had
left the drill halfway through the curtain with its lights on.
Russell Wayne Reynolds, who was Robinette's section boss
when Robinette commenced working for Respondent in 1986, testified that 2 weeks prior to November 17, 1986, Boyd told him that
Robinette had told Boyd that, in essence, if the section did not
get more air that he, Robinette, " ••• would call somebody that
could get it."
(Tr. Vol II, P. 159). I find this testimony
truthful, as it was not contradicted by Boyd who subsequently
testified. l/

1/ Although Boyd stated, in essense, that Robinette did not
complain to him about the air or ventilation, he did not specifically deny having told Reynolds, as- testified by Reynolds, that
Robinette told him that if Boyd did not get more air Robinette
would call someone who would.

1322

On November 17, 1986, a spot inspection was performed at
Respondent'.s mine by MSHA Inspectors Franklin Dallas Perkins and
Fred L. Howery. According to Howery, Cit was stipulated that if
Perkins were to testify, the answers that he would give to
questions on direct and cross-examination would be the same as
Howery), he indicated, in essence, that upon serving a citation
on Boyd, the latter asked if the MSHA Inspectors had been called
to make the inspection. Howery, in essence, further testified
that Boyd said that if the identity of the person who called the
inspectors would be ascertained then that person would be fired.
Reynolds said that a few days after the inspection on
November 17, Boyd said he'd fire the one who called the
inspectors. Boyd, however, said that no one ever told him that
Robinette had called the inspectors and that he never threatened
to fire an employee for calling the inspectors and never made
such a statement. However, I find, based on observations of
their demeanor, that Howery and Reynolds were truthful in
testifying that Boyd had told them on separate occasions that
the one who called the inspectors would be fired. Also, I note
that Boyd did not specifically deny making those specific
statements to Howery and Reynolds. Further, it was Robinette's
uncontradicted testimony that Boyd asked him prior to
November 21, 1986, if he had called the inspectors.
(Tr. 82).
Robinette also testified that Boyd said that he would find the one
who called the inspectors and fire him.
In addition, Griffith testified that sometime prior to
November 17, 1986, Compton initiated a conversation and indicated
that Robinette had called the MSHA Inspectors and that he
(Compton) " ..• was going to get rid of him."
(Tr. Vol II, P. 131).
In this regard Reynolds also testified that on November 17, the day
of the inspection, Compton said that he would fire the one who
called the inspector. I find the testimony of Griffith and
Reynolds to be truthful based upon observations of their demeanor,
as well as the fact that their testimony in this regard has not
been contradicted. It is further significant to note that
Robinette's uncontradicted testimony was to the effect that Compton
had asked him if he had called the inspectors.
In addition, it was Robinette's testimony that on the Monday
after he was fired, he asked Eugene Altizer Cone of Respondent's
owners at the time) if he (Robinette) was fired because of anything he had done, and Altizer said that he did not know why
Robinette was fired as Boyd had taken that action but " ... if it
was because the inspectors had been called, that he would find
out who called them if he had to fire every man on that section."
(Tr. Vol I, P. 81). I find Robinette's testimony truthful in
this regard based upon observations of his demeanor, the fact
that his testimony was uncontradicted, and the fact it was
corroborated by Hale, who was present when this conversation took
place.

1323

The record contains further evidence bearing on Respondent 1 s
motivation.
In this connection, I note the testimony of Reynolds
that in January 1987, Boyd accused him of having previously
called the inspectors to Respondent's mine. Boyd disputed the
details of this conversation, denied making such a statement and
denied indicating that an employee would not be rehired if he
called an inspector.
I have resolved this conflict in testimony
in favor of Reynolds based upon observations of the witnesses'
demeanor.
In the same fashion, it was Reynolds 1 testimony that
Leon Vandyke, his present employer, told him that Dors McLaughlin,
Respondent 1 s owner, and Boyd told him that he (Reynolds) had called
the inspector to Respondent 1 s mine.
Based upon a combination of the above testimony, I conclude
that the firing of Robinette was motivated in "any part," by
Respondent 0 s perception that Robinette had called mine inspectors
to the mine.
Further, I find, based upon an analysis of the
above outlined evidence, that Respondent has neither shown that
the adverse activity was not motivated in any part by the
protected activity, nor has it established an affirmative
dc~.fense.

Hence, I conclude that Respondent did violate § 105CcJ of
the Act as it did commit an act of discrimination against
inette within the purview of § 105(c) of the Act.
HALE
otected
Joey Hale, a miner employed by Respondent from October 1981
to November 22, 1986, testified that he told Reynolds on one
occasion that if proper ventilation was not provided, he would
call the inspector. Bale also said that several times, 2 or 3
v1eeks before he was fired, he complained to Boyd, in essence,
t additional air was needed on the section.
In contrast, Boyd
essentially testified that he did not receive complaints from
other employees about the air in the section, and that the
E;ection boss did not tell him that he received any complaints.
However, based upon observations of their demeanor, I find Hale's
testimony more credible.
I thus find that Hale engaged in
protected activities in making complaints to Reynolds and Boyd
with regard to proper ventilation.
Moti

ion

According to Hale, on November 17, 1986, the date of the
MSHA spot inspection, while he and Robinette were in the section,
thought he saw Compton approaching. He then approached
Robinette and asked him if they would have time "to shoot the
place."
(Tr. Vol II, P. 15). He said that he did not think that

1324

Robinette was asleep and he did not wake him. Robinette indicated
that he was not asleep and stated that Compton asked him if he was
going to wake up. Griffith testified that approximately during
Compton's first or second week on the section, Compton initiated
conversation and indicated that he was trying to catch Robinette
asleep.
Doris Allen Nickels, another miner on the section on
November 17, indicated that he was approximately 5 feet away from
Robinette during the above incident. He said that Bale did not
try to wake Robinette before Compton arrived. It was his testi
many, in essence, that when he observed a light approaching the
section, Hale asked whether that was Compton and Nickels ind
in the affirmative. Nickels said that Hale then hollered at
Robinette 2 or 3 time and said ~oon, I believe there comes the
boss,n (Tr. Vol III, P. 201), but that Robinette did not answer
Nickels said that Hale then picked up some lumps of coal and threw
them at Robinette who then raised himself up and put his light on.
I find the version testified to by Nickels to be more credible.
In reaching this conclusion, I note that neither Hale nor
Robinette were recalled to of fer testimony in rebuttal to the
specifics testified to by Nickels. According to Nickels, later
the same evening, Compton asked him whether Robinette was asleep
and whether he (Nickels) woke him up. Nickels said that he then
proceed to tell Compton that Hale had hollered at Robinette saying
~there comes the boss," (Tr. Vol III, P. 204), and threw rocks at
him. The only significant evidence having any tendency to impeach
the creditability of Nickels, was Hale's statement that on
November 22, Nickels told him that Compton had told Nickels on the
morning of November 22, ~he had better keep his mouth shut if he
wants to keep his job • • •
n
(Tr. Vol II, P. 24). Nickels,·
however, indicated that Compton had not made such a statement to
him and he also denied having himself made such a statement to
Hale. Even if Nickels was coerced into not stating certain facts,
I can not infer that he was in any fashion coerced to fabricate
what transpired on November 21.
According to Hale on November 22, he was summoned to the
mine office where Compton and Boyd were present. He said that
Compton accused him of waking Robinette up and said that if Hale
did not admit that he woke up Robinette he was fired.
Hale said
that he denied waking up Robinette, and Compton asked Boyd if he
had any thing else that he wanted Hale to do and Boyd told Hale
that he could go home.
According to Boyd, Compton initially asked Hale why he woke
Robinette up and Hale denied waking him up. However, according
to Boyd, when Compton indicated that he had a witness, Hale said
he did not mean to wake Robinette up and Compton told him~ ...
that he no longer needed him or he was fired for interfering with
his work."
(Tr. Vol III, P. 50). Compton was, according to

1325

Respondent, unavailable for testimony on its behalf, and thus was
unable to explain his specific reasons for firing Hale. In this
connection, I find that Boyd is not competent to testify as to
what Compton meant when he said he fired Hale "for interfering
with his work."
(Tr. Vol III, P. 50). I accordingly did not
give any weight to his testimony in this regard.
I find, as analyzed in the portion in this Decision dealing
with the complaint of Donald Robinette, infra, that Boyd and
Compton, Respondent's supervisors at the time, both indicated
that the persons who called the inspectors would be fired.
I
also find, as analyzed above, infra, that a statement to the same
effect was made by Altizer, one of Respondent's owners at the
time.
In this connection, I note that Hale testified that
approximately 2 to 3 months prior to his discharge, he told
Reynolds that if proper ventilation was not provided for he was
going to call the inspectors. Also, approximately 2 to 3 months
before his discharge, Hale was present in the house of Donald
Cook, an employee miner of Respondent from April to July 1986,
when a telephone call was made to a Lacey Horton, a State Mine
Inspector. According to Cook, he (Cook) spoke with Horton
regarding ventilation problems at Respondent's mine. According
to Hale, he (Hale) spoke to Horton with regard to his rights
working in smoke and dust. It is not necessary to reconcile this
conflict in the testimony as it is clear, from the testimony of
both Cook and Hale, that in the conversation with Horton, neither
one either identified himself or the mine involved. However,
significantly, Hale indicated that he discussed this conversation
with several other miners.
Also I note, that although Hale's actions on November 17, in
waking up Robinette might have been part of the reason for his
being fired, Respondent did not discipline him or talk to him
about this incident until 5 days later, on November 22, which is
1 day after Robinette had been fired.
In this connection, I note
that I concluded, infra, that Robinette's firing was motivated in
part by Respondent's perception that he had called the inspectors.
I conclude, based on the combination of all the above
factors, that Hale established his prima facie case in establishing that his discharge was motivated "in any" part by
management's retaliation against those suspected of having called
the inspector, and that Respondent has neither rebutted this
prima facie case, nor has it established any affirmative defense.
(See, Goff, supra.)
ORDER
It is ORDERED that:
1. Respondent shall, within 15 days of the date of this
Decision, post a copy of this Decision at its Mine No. 8 where
notices to miners are normally placed, and shall keep it posted
there for a period of 60 days.

1326

2. Complainants shall file a statement, within 20 days of
this Decision, indicating the specific relief requested. The
statement shall be served on Respondent who shall have 20 days,
from the date service is attempted, to reply thereto.
3. This Decision is not final until a further Order is
issued with respect to Complainants' relief and the amount of
Complainants' entitlement to back pay if any.

I
.
~
Avram Weisberger
Administrative Law Judge
Distribution:
Shelia K. Cronan, Esq., Office of the Solicitor, u. S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 <Certified
Mail)
Robert J. Breimann, Esq., Street, Street, Street, Scott & Bowman,
P. O. Box 2100, Grundy, VA 24614 (Certified Mail)
dcp

1327

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

SEP 3O1988
BOBBY R. LUTTRELL,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 87-214-D

v.
BARB CD 87-36
JERICOL MINING, INC.,
Respondent

No. 1 Creech Mine
DECISION

Appearances:

Before:

Sidney B. Douglass, Esq., Harlan, KY, for
Complainant;
William D. Kirkland, Esq., and Christopher M. Hill,
Esq., McBrayer, McGinnis, Leslie and Kirkland,
Frankfort, KY; for Respondent.

Judge Maurer
STATEMENT OF THE CASE

Complainant contends that he was discharged from his job as
a roof bolter on April 27, 1987, for complaining of safety
conditions, activities which are protected under the Federal Mine
Safety and Health Act of 1977, (hereinafter the Act). He filed a
discrimination complaint on May 14, 1987, with the Mine Safety
and Health Administration (MSHA). On July 15, 1987, MSHA
notified him of its finding that a violation of section 105{c) of
tne Act had not occurred.
Mr. Luttrell thereafter filed a pro se complaint with this
Commission on July 29, 1987, naming Jerico! Mining, Inc.,
(Jerico!) as respondent. The complaint was not served upon
Jericol until September 1, 1987, but Jerico! had been notified by
the Commission on August 4, 1987 that an incomplete complaint had
been filed.
The complainant thereafter completed his filing and
on October 2, 1987, Jericol filed its answer. Respondent
contends that Luttrell was discharged for insubordination and
engaging in threatening behavior against his superiors and not
because of any protected activity.
Pursuant to notice, an evidentiary hearing was held in
Lexington, Kentucky on May 25, 1988. Both parties elicited oral
testimony and submitted documentary evidence into the record.
Additionally, the post-hearing deposition of Mr. Harold Brewer,

1328

which was taken on June 17, 1988, has been offered and received
int~ the record of trial.
By motion, complainant also seeks to file his own
post-hearing deposition wherein he alleges that on May 26, 1988,
the day after the hearing, he and one of the men who had
testified on his behalf, were terminated from their employment
with General Testing of Harlan, Kentucky, a construction firm,
because of this case against Jerico! Mining, Inc. The
complainant asserts that his deposition testimony is relevant to
show bias and malice against him on the part of Jerico!.
Respondent objects to the admission of this deposition into the
record on several grounds, including relevancy. The relevancy
objection is well taken.
I am concerned in this proceeding with
an April of 1987 discharge which is allegedly unlawful. What may
have occurred in May of 1988 between the complainant and some
other third party with or without the complicity of the
respondent is too remote to have any bearing on the case before
me. Accordingly, complainant's motion to file the deposition of
the complainant or in the alternative to reopen the hearing is
denied.
Both parties have filed post-hearing briefs which I have
considered along with the entire record and considering the
contentions of the parties, make this decision.
ISSUES
1. Whether complainant has established that he was engaged
in activity protected by the Act.
2. If he was, whether the complainant has suffered adverse
action as a result of that protected activity.
3.

If he did, to what relief is he entitled by law.
STIPULATIONS

The complainant and respondent stipulated to the following
by Joint Exhibit No. 1:
1.

The complainant's last day of work was April 21, 1987.

2. Prior to his discharge, the complainant was employed by
the respondent as a "miner" within the meaning of 30 USC
§ 802(g).
3.

The respondent is an "operator" within the meaning of 30

use § 002 Cd>.

1329

4.
The complainant was first employed by the respondent on
January 15, 1979.

5.

The complainant resigned on March 26, 1982.

6.

The complainant was reemployed on October 8r 1983.

7.

The complainant resigned again on April 6, 1984.

8.

The complainant was rehired on July 11, 1984.

9. The complainant quit his job with the operator on
September 9, 1985 and filed a MSHA complaint.
10. The complainant withdrew the above MSHA complaint on
September 30, 1985, and was allowed to come back to work.
11. On April 21, 1987, Millard Perry held the position of
section foreman with respondent and was the complainant's
supervisor.
12. Robert McConnell, Wayne Sizemore, Larry Blanton, Mike
Smith, Don Pittman and Doug Brewer were witnesses to the
confrontation on April 21, 1987 between complainant and Millard
Perry.
13. The Kentucky Division of Unemployment Insurance has
determined that the complainant was not entitled to collect
unemployment compensation because he was discharged for
insubordination.
14. The Mine Safety and Health Administration has
determined that the respondent has not violated§ 105(c) of the
Federal Mine Safety and Health Act of 1977 with regard to the
complainant's discharge.
DISCUSSION
Mr. Luttrell first went to work for Jericol in January of
1979, while the company was in the midst of a strike with the
United Mine Workers. He endured hardships during his first seven
to nine months of employment due to the strike. The miners were
escorted back and forth to work by the State Police in armored
busses and there were shootings. One man was killed on the same
bus with Luttrell and two others were wounded, but Luttrell
continued to cross the picket line and go to work.
Mr. Luttrell has been a roof bolter for most of his career
with Jericol and over the years has made safety-related
complaints to the company on numerous occasions.

1330

For instance, in 1982 or 1983, when he worked at the Wallins
Mine, he had complained of the roof bolts he was furnished being
too short to hold the top. He also complained that the "boss"
and the continuous miner operator were using LSD, Valium, "speed"
and other drugs while on the job and were consequently making
cuts forty and fifty feet deep. He also testified that the mine
foremen were giving the miners all sorts of drugs such as THC,
animal tranquilizers, Valium, "speed" and Percodan right on the
job. Allegedly as a result of these complaints, they moved him
to the Creech No. 2 Mine. On cross-examination, however, he
testified that he, too, smoked marijuana underground while
operating the roof bolter.
In 1985, he filed a prior discrimination complaint with
MSHA, but it was dropped after the company gave him his job back,
and moved him to the Creech No. 1 Mine.
In 1986, at the annual retraining meeting for the Jericol
employees at Keokee, Virginia, Luttrell spoke out and complained
about safety conditions~-the roof bolters being under too much
pressure and having to worK too many hours. This was in front of
all the company employees, including Mr. Baker, the
Vice-president of Operations.
In June of 1987, Luttrell testified on behalf of Mr. Roger
Hall, who had also filed a discrimination case against Jericol,
but he (Luttrell) had already been fired for two months at this
point. Therefore, absent proof of some connection between giving
this testimony on behalf of Hall and his own discharge, I cannot
find that this was protected activity relevant to his April 1987
discharge. Baker's testimony is that he had no knowledge that
Luttrell would testify in the Roger Hall case at the time he
fired Mr. Luttrell. In fact, Luttrell himself testified that he
told Baker that he would not testify two weeks before ne was
terminated.
In any event, it defies common sense that Baker
would fire Luttrell before the Hall case went to trial, if his
purpose was to prevent Luttrell from testifying for Hall.
There was also some testimony concerning the issue of
whether or not Luttrell had called the federal mine inspectors in
to inspect the mine. However, Luttrell maintains he did not and
there is nothing in the record otherwise to suggest that he did,
or that Mr. Baker thought he did.
Mr. Luttrell had also on occasion made safety
complaints to Millard "Red" Perry, his section foreman and
supervisor. Specifically, he had complained about his "pinner"
cable being "blocked in".
That means it was wired straight in
from the power cable, around the circuit breaker, so that the

1331

breaker wouldn't trip in the event of a short in the circuit, and
shut the equipment off.
The most significant safety complaint Bobby Luttrell seems
to have made was that he had to work under deep cuts. Several
witnesses for the complainant testified to this effect and I find
it to be a credible claim.
On the last day Mr. Luttrell actually worked for Jericol,
April 21, 1987, the circuit breaker tripped on the roof bolter,
shutting the machine down, until the maintenance foreman, Doug
Brewer, "blocked it in". This is a practice Mr. Luttrell
believes to be· very dangerous. He had complained of this
practice in the past, but there was no testimony that he made any
mention of it on this day.
In any case, foreman Perry was of the opinion that Luttrell
was bolting slower than usual that day and he also believed that
Luttrell was attempting to get the bolting machine stuck in loose
coal, ostensibly so he could take a break from bolting. Mr.
Luttrell, on the other hand, states that he could not have bolted
any faster that day because the top was bad and he denies that he
was trying to get the bolter stuck, although he admits it did get
stuck and he was done bolting for the rest of the shift.
After what turned out to be his final shift, Luttrell and
his partner on the "pinner," Mike Smith, were called into the
mine superintendent's office. Their forenan, Millard Perry, was
waiting there for them, along with Wayne Sizemore, and he
confronted them both about their work.
Smith testified that
Perry said they were both too slow and that they could bolt
better. He (Smith) acknowledged that they could have probably
bolted more top, but I note that this whole issue of productivity
is largely irrelevant to this case. Whether or not Mr. Luttrell
is a slow bolter or a fast bolter is relatively insignificant
compared to his violent reaction to this criticism coming from
his supervisor.
With the four men gathered in the superintendent's office,
Perry asked Luttrell and Smith if they had a problem working for
him. Smith replied in the negative. Luttrell responded by
asking if Perry had a problem with them, to which Perry replied
that he did have a problem with that day's bolting. According to
Perry's testimony, which is corroborated in the main by Smith's
and Sizemore's, it was at this point that Luttrell started
cussing him, calling him names and invited him out to his truck
to take care of him there.
Perry testified that he understood
that Luttrell meant to kill him. He quoted Luttrell as saying to
him:
"Come out to my truck; I've got something to take care of
you with."

1332

Robert McConnell, another Jericol foreman happened to be in
the same building, but in a different room while all this was
going on. -He testified that he heard a lot of screaming through
the door and then the door was flung open, Mr. Luttrell came out
and then turned and called foreman Perry a "motherfucker," and
that he would meet him at Slope Hollow and take care of him
there; and he said that he had something in his truck to take
care of him with. Luttrell did in fact wait for Perry at Slope
Hollow, but Perry didn't stop.
Foreman McConnell had also had an earlier episode with Mr.
Luttrell. On January 15, 1987, McConnell was acting section
foreman on the section Bobby Luttrell was running a bolting
machine on. When the bolter broke down, he told Luttrell to go
and shovel around the coal feeder and tailpiece. Instead of
performing this task, Luttrell began operating one of the shuttle
cars until McConnell saw him. At that time he told him he didn't
want him operating the car and to go back to the dump and shovel
the loose coal alongside the batwings on the feeder. When he
went back a short time later to check on Luttrell, he wasn't
there. He found him back at the bolting machine watching the
repairman work on the drill. McConnell again told him to go to
the dump and finish shoveling the loose coal. According to
Respondent's Exhibit No. 5, which is a Jericol Mining, Inc.,
Incident Report and the testimony of McConnell at the hearing,
Luttrell said words to the effect that he was tired of the
foreman "fucking" with him, called him a "motherfucker" and
threatened to take a piece of drill steel and "knock his
goddamned head off". He purportedly added that if that wasn't
enough, he had a gun in his truck to take care of the situation.
McConnell fired him on the spot. He later rescinded this action
after Luttrell had calmed down, but warned him that if it
happened again, he would be discharged.
Mr. Baker, the Vice-president of Operations at Jericol, was
advised the next day of the incident with Millard Perry in
Sizemore's office. At that time, he reviewed Luttrell's
personnel file which included the report of the McConnell
incident of January 15. Based -0n the fact that Luttrell had in
the very recent past thre~tened and verbally abused two foremen
who were his immediate supervisors, Baker felt he had no
alternative but to discharge him for the safety of the other
employees at the mine. He ordered that be done the next time
Luttrell reported to work, which was the following Monday.
The complainant maintains that he was discharged for
activity protected by the Mine Act. More specifically, he
testified that he believed he was terminated because he had
complained about safety conditions over the years and that he had

1333

been provoked into cursing Perry on April 21, 1987, so the
company would have an excuse to fire him.
I believe and find credible that on occasion over the years
he had made safety-related complaints to his immediate supervisor
concerning matters which he believed to be unsafe mining
practices. This is obviously protected activity. However, in
order to make a orima facie case, more is required. In order to
establish a prima facie case of discrimination under section
105(c) of the Mine Act, a complaining miner bears the burden of
production and proof to establish (1) that he engaged in
protected activity and (2) that the adverse action complained of
was motivated in any part by that activity. Secretary of Labor
ex rel. Fasula v. Consolidation Coal Company, 2 FMSHRC 2768
(October 1980), rev'd on other grounds sub nom. Consolidation
Coal Company v. Marshall, 663 F.2d 1211 C3d Cir. 1981); Secretary
on behalf of Robinette v. United Castle Coal Company, 3 FMSHRC
803 (April 1981); Secretary on behalf of Jenkins v. Hecla-Day
Mines Corporation, 6 FMSHRC 1842 (August 1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511
(November 1981), rev'd on other grounds sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 {D.C. Cir. 1983).
Of particular importance in this case is the second part of
the complainant's burden of proof. He must make an initial
showing that his discharge was motivated at least in some part by
his protected activity. If he fails to establish a causal
connection between his protected activity, i.e., the safety
complaints he made and the adverse action taken against him, he
has failed to prove an essential element of his case and his
Complaint is subject to dismissal.
It seems clear to me from the record in this case that Mr.
Luttrell was discharged from his job solely for aggravated
insubordination on not just one, but two separate occasions,
approximately three months apart.
Complainant has most definitely not shown by a preponderance
of the reliable and probative evidence that his discharge was
motivated in any part by protected activity. He has therefore
failed to meet his burden of proof in this regard.
The respondent, however, has shown by an overwhelming
preponderance of the evidence that Mr. Luttrell was discharged
solely for threatening and verbally assaulting his for~nan on two
different occasions in January and April of 1987, as more fully
set-out earlier in this decision. Furthermore, there was no
showing that Mr. Baker, who was the individual responsible for
Luttrell's discharge, was even aware of Luttrells' prior safety
complaints to his various foremen over the years. To the

1334

contrary, it is unrebutted in this record that Baker was not
aware of any safety complaints made by Luttrell to anybody.
An additional point is noteworthy in that regard. Mr.
Luttrell claims to have made safety complaints to his foremen
over the entire span of his years with Jericol. As established
in the stipulations, supra, between 1979 and 1987, Mr. Luttrell
left voluntarily and was subsequently re-hired by the company on
several occasions. If company management was aware of Luttrells'
safety complaints and was bothered by them to any degree, they
could have simply not re-hired him on any one of those occasions.
I must concur with the respondent that repeated threats and
verbal abuse by an employee directed towards his supervisor need
not be tolerated by any company, and is certainly not protected
activity under§ 105(c} of the Mine Act.
ORDER
In view of the foregoing findings and conclusions, and after
careful consideration of all of the credible evidence and
testimony adduced in this case, I conclude and find that the
complainant has failed to establish a violation of section lOSCc}
of the Act. Accordingly, the Complaint IS DISMISSED, and the
complainant's claims for relief ARE DENIED.

Distribution:
Sidney B. Douglass, Esq., 120 South Second Street, Harlan, KY
40831 (Certified Mail}
Christopher M. Hill, Esq., and William D. Kirkland, Esq.,
McBrayer, McGinnis, Leslie and Kirkland, 300 State National Bank
Building, Frankfort, KY 40602 (Certified Mail}

1335

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

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

v.

.

SEP 301988

CIVIL PENALTY PROCEEDING
Docket No. WEST 87-179-M
A.C. No. 05-00516-05523
Leadville Unit

ASARCO INCORPORATED,
Respondent
DECISION APPROVING PARTIAL SETTLEMENT
Before:

Judge Lasher

Upon Petitioner's motion for approval of a proposed partial
settlement and the same appearing proper and in the full amount
of the initial assessments for 10 of the 19 Citations involved,
the settlement is approved.
Pursuant to the agreement reached, Respondent agrees to pay
the following penalties:
CITATION NO.
2638789
2638867
2638859
2638872
2638874
2638875
2638876
2638922
2638878
2638923
TOTAL

PENALTY
$ 20.00
112.00
20.00
20.00
20.00
20.00
20.00
20.00
20.00
20.00
$292.00

Respondent, if it has not previously done so, is ordered to
pay to the Secretary of Labor within 30 days from the date hereof
the total sum of $292.00 as and for the civil penalties above
listed.

(5'~&-~z/,.?(. p£~1' /!.

Michael A. Lasher, Jr.
Administrative Law Judge

1336

ADMINISTRATIVE LAW JUDGE ORDERS

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

August 30, 1988
EMERY MINING CORPORATION
AND/OR UTAH POWER & LIGHT
COMPANY,
Contestants

v.
SECRETARY OF LABOR,
. MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Respondent
and
UNITED MINE WORKERS OF
AMERICA, (UMWA),
Intervenor

.
PROCEEDINGS
.. CONTEST
Docket No. WEST 87-130-R
.. Citation
No. 2844485; 3/24/87
. Docket No. WEST 87-131-R
.
.. Order No. 2844486; 3/24/87
... Docket
No. WEST 87-132-R
Order No. 2844488; 3/24/87
.
.. Docket No. WEST 87-133-R
. Order No. 2844489; 3/24/87
:

Docket No. WEST 87-134-R
Citation No. 2844490; 3/24/87

.
Docket No. WEST 87-135-R
. Citation
No. 2844491; 3/24/87
. Docket No. WEST 87-136-R
Citation No. 2844492; 3/24/87
. Docket No. WEST 87-137-R
Citation No. 2844493; 3/24/87
Docket No. WEST 87-144-R
Order No. 2844795; 3/24/87
Docket No. WEST 87-145-R
Order No. 2844796; 3/24/87
:

.

Docket No. WEST 87-146-R
Order No. 2844798; 3/24/87

:

Docket No. WEST 87-147-R
Order No. 2844800; 3/24/87

:
:

Docket No. WEST 87-150-R
Order No. 2844805; 3/24/87

:

Docket No. WEST 87-152-R
Order No. 2844807; 3/24/87

:
:

Docket No. WEST 87-153-R
Order No. 2844808; 3/24/87

.

1337

:
:

Docket No. WEST 87-155-R
Citation No. 28448111 3/24/87

.
: Docket No. WEST 87-156-R
Order No. 2844813; 3/24/87
.:: Docket
No. WEST
87-157~R

.
: Docket No. WEST 87-158-R
.: Citation No. 28448161 3/24/87
:

Order No. 28448151 3/24/87

:
:

Docket No. WEST 87-159-R
Citation No. 28448171 3/24/87

.: Docket No. WEST 87-160-R
. Order No. 2844822; 3/24/87
.
:
:

Docket No. WEST 87-161-R
Order No. 2844823; 3/24/87

:

:

Docket No. WEST 87-163-R
Citation No. 28448261 3/24/87

.•
. Docket No. WEST 87-243-R
.. Citation
No. 2844828; 8/13/87
.
: Docket No. WEST 87-244-R
. Citation No. 2844830; 8/13/87
:
:

Docket No. WEST 87-245-R
Citation No. 2844831; 8/13/87

:
:

Docket No. WEST 87-247-R
Citation No. 28448331 8/13/87

:

Citation No. 2844835; 8/13/87

:
:

Wilberg Mine
Mine I.D. No. 42-00080

.
. Docket No. WEST 87-246-R
. Citation No. 2844832; 8/13/87
.

.
: Docket No. WEST 87-248-R

.
:
Docket No. WEST 87-249-R
Citation No. 2844837; 8/13/87
.

1338

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

v.
EMERY MINING CORPORATION, and
ITS SUCCESSOR-IN-INTEREST
UTAH POWER & LIGHT COMPANY,
MINING DIV. ,
Respondent
and
UNITED MINE WORKERS OF
AMERICA ( UMWA),
Intervenor

:

CIVIL PENALTY PROCEEDINGS .

:

:
:

...

Docket No. WEST 87-208
A.C. No. 42-00080-03578

.. Docket No. WEST 87-209
. A.C. No. 42-00080-03579
Docket No. WEST 88-25
A.C. No. 42-00080-03584
.
.
.. Wilberg Mine
.
.
..
.

ORDER
The issues presented here involve the Secretary of Labor's
renewed motion for summary decision and a motion by Utah Power and
Light Company, Mining Division (UP&L) to vacate 30 modified
citations and orders. ~/
Utah Power and Light opposes the Secretary's renewed motion
for summary decision 2; and further moves to dismiss the citations
and orders as modified or, in the alternative, moves for a summary
decision if the modifications are ruled invalid.

ll

In the alternative, UP&L considers its pleading to be a motion
for summary decision if the citations and orders are invalid as
modified.

2/ A similar motion filed by the Secretary on June 25, 1987 was
denied by the Judge on August 5, 1987.

1339

Prior to discussing the pending issues it is necessary to
detail certain relevant procedural history:
On March 4, 1988 the Judge severed 11 cases from the general
consolidation of the cases. After severance these cases were recon•olidated. The cases were docketed as WEST 87-138-R, WEST
87-139-R, WEST 87-140-R, WEST 87-141-R, WEST 87-142-R, WEST 87-143-R,
WEST 87-148-R, WEST 87-149-R, WEST 87-151-R, WEST 87-154-R and
WEST 87-162-R. The dual cormnon denominator in these cases was that
Emery Mining Corporation (Emery) had paid the proposed penalties in
full and a dismissal had been entered as to Emery (Order, August 5~
1987). Further, a renewed motion for a surrunary decision by UP&L
was pending in the cases.
On March 9, 1988 UP&L's motion was granted. Since there were
no remaining issues the cases were returned to the Commission.
These cases are reported at 10 FMSHRC 339.
The ruling in the cases holds that UP&L had not been cited as
an operator and an enforcement action could not be sustained
against it. Specifically, in part, the Judge st~ted that "UP&L was
not cited as an operator but as a successor-in-interest," 10 FMSHRC
at 349. The decision further holds that the successorship doctrine
did not apply under the circumstances of the case.
The Secretary did not appeal the Judge's order of dismissal
but on April 27, 1988 she restated her prior position and indicated
she would modify the remaining citations and orders to cite UP&L as
an owner-operator.
The nature of the modification of the citations and orders
are as stated below in her renewed motion for summary decision.
The modifications were made on April 25, 1988 and filed with the
Commission on May 4, 1988.
On May 17, 1988 the Secretary filed her renewed motion for
summary decision. The motion, in its entirety, provides as
follows:
The Secretary of Labor hereby renews her previously
filed motion for surmnary decision on the issues of Utah
Power and Light's (UP&L) liabiLity as an operator. This
motion is renewed because of additional information obtained in discovery aft~r the Judge's March 9, 1988, Order
of Dismissal, and because the remaining unpaid citations
and orders were modified in response to the Judge's Order.
As modified, those citations describe the operators as:
Utah Power & Light Company, owner-operator
as well as the successor-in-interest to
Emery Mining Corporation; and Emery Mining
Corporation.
134.0

The additional information, which was received in discovery on March 14, 1988, consists of a portion of the Coal
Mining Agreement between UP&L and the American Coal Company,
which, in 1979, became the Coal Mining Agreement (Agreement)
between UP&L and Emery. l/csee Appendix A hereto). Under
the Agreement, UP&L agreed to provide a mining plan for its
Wilberg and Deer Creek Mines and to "furnish all· capital
equipment, [and to] pay for materials and supplies" in exchange for American Coal Company's, and later Emery's agreement to "perform all of the work and services necessary for
the production of coal mined by deep mining or underground
methods" from the Wilberg and Deer Creek Mines (See Appendix'
A, p.l). Although the Secretary has not yet received the
entire Agreement from UP&L or Emery, the portion that has been
produced indicates that UP&L agreed to pay the "Total Cost of
Production" at the Wilberg Mine. Under the Agreement, the
"Total Cost of Production" means "all costs incurred by
American [and later Emery] for the purpose of mining, washing,
blending, processing, storing and loading coal produced from
Deer Creek and Wilberg Mines and in operating and maintaining
said Deer Creek and Wilberg Mines under the terms of this
Contract."
(See Appendix A, p. 2).
These costs included salaries and wages, etc., as well as
the:
"(v) costs of complying with federal, state
or local laws, rules, regulations, including mining
laws and regulations and court orders, judgments
and settlements including related attorneys fees
relating to proceedings arising out of American's
[Emery's] performance under this Contract, but
excepting all costs incurred by American [Emery]
with respect to any proceeding against Utah [UP&L];"
(emphasis supplied) (See Appendix A, p. 3).

The Secretary's footnote reads as follows:
1/ A copy of the entire Coal Mining Agreement between UP&L
and Emery was requested in discovery by the Secretary on
January 28, 1988. To date, the entire Agreement has not
been received.
It is extremely possible that the Agreement, in its entirety, will show an even closer nexus
between UP&L's and Emery's operations at the Wilberg Mine.

1341

There remains no genuine issue of material fact in
dispute concerning UP&L's status as an owner-operator at the
time of the December 19, 1984, Wilberg Mine Fire or as a
successor-in-interest operator when Emery Mining Corporation
(Emery) departed from the Wilberg Mine operation on April 16,
1986 (Order, page 4).
The Secretary supports the renewed
motion with the following undisputed facts:
Undisputed Facts.
1. UP&L has been owner of. the coal mineral rights for
the Wilberg Mine since 1976 (pages 2, 4, Judge's March 4,
1988, Order of Dismissal, hereinafter "Order"). UP&L contracted with the American Coal Company in 1972 to operate
UP&L's Deseret, Beehive and Little Dove mines as a contract
opera~or and in 1976 to operate the Deer Creek and Wilberg.
mines. Beginning in June 1979, and ending on April 16, 1986
UP&L contracted with Emery Mining Corporation (Emery> to
operate UP&L's mines as a contract operator <Order, page 2).
2. UP&L submitted its mining application for the
Wilberg Mine to the Bureau of Mines.
Subsequently, UP&L
submitted mining plans for the Wilberg mine to the Bureau
of Mines.
These extensive mining plans were prepared and
submitted without Emery involvement. (Order, page 4).
3. During the entire time that Emery was under contract with UP&L to operate the Wilberg Mine, UP&L had a
resident engineer present at the mine on a daily basis to
make sure that the mining plans referred to above, were
followed (Order, page 4).
4. UP&L purchased and owned all of the major mining
equipment used at the Wilberg Mine during the entire June
1979 to April 16, 1986 contract period with Emery (Order,
page 4).
The Agreement between Utah Power and Light
and Emery stated that UP&L would:
"provide a mining.plan and will furnish all
capital equipment, [and] pay for materials
and supplies • • • " (see Appendix A, p. l).

1342

5. In UP&L's contractual mining Agreement with American Coal Company, and subsequently with Emery, UP&L agreed
to pay the "Total Cost of Production" as described under
Article VII of the Agreement (see Agreement, Appendix A).
One of the costs described in Paragraph 7.01 (iii> of the
Agreement relates to:
taxes, assessments and fines except
for willful violations and other charges imposed on Emery
by federal, state, or local governments.
(This section was
amended February 24, 1984, to "taxes, assessments and
similar.charges •.•• ">.
In addition, Paragraph 7.0lCv> provided that UP&L
would reimburse Emery for the:
"costs of complying with federal, state
or local laws, rules, regulations, including
mining laws and regulations • • • (emphasis
supplied).
(See Appendix A, Para. 7.0l(v)).
The fact that UP&L reimbursed Emery is supported by
Emery's Answer to Interrogatory 3a of the Secretary's
First Set of Interrogatories and Request for Production
of Documents :
Interrogatory 3a
(a) Explain any indemnity agreement between Emery and UP&L concerning liability
for violations and penalties under the Mine
Act and other state and federal laws.
Submit a copy of any written agreement to this
effect.
3a. Response: UP&L and American Coal Company (the predecessor of Emery> entered into
a Coal Mining Agreement dated November 24,
1976. The Coal Mining Agreement originally
provided that fines (except for willful violations) were a reimburseable cost from UP&L
to Emery.
6. UP&L and Emery mutually agreed on production goals
for the Wilberg Mine during the June 1979-April 16, 1986,
period (Order, page 4>. The amended Mining Contract Agreement between the companies refers to monthly fees paid to
Emery for coal tonnage delivered to UP&L each month with
different fees for different tonnage quotas.
(See pages 1
and 2 of the "Second Amendment to Coal Mining Agreement
Between Emery Mining Corporation" (included in Appendix A
hereto) where reference is made to the deletion of Paragraph 6.03 of the Agreement).
1343

,

7. Under the Mine Act and its implementing regulations, mine operators are required to submit a number of
mine plans to MSHA for approval; UP&L reviewed Emery's
mine plans before they were submitted to MSHA when these
plans concerned the mining system in use at the Wilberg
Mine <Order, page 4) ~/ •
8. As stated by UP&L Cpage 3, Statement of Facts
to its Motion for Summary Judgment), UP&L retained most of
Emery's work force when it took over complete operations
of the Wilberg Mine in April 1986. Although this transfer
did not include all of Emery's officers and directors,
UP&L retained Emery mining supervisors and management personnel including David D. Lauriski, Safety Director, and
John Boylen, Mine Manager, at the Wilberg Mine (See Exhibits c, D, and E To Secretary's Response to Contestant's
Motion for Summary Decision).
(See also Order, p.4).
A list of UP&L ~ployees after April 16, 1986, and a
list of Emery Wilberg employees before April 16, 1986,
were submitted by UP&L and Emery in response to Interrogatory 3Cb) and 3Cc> of the Secretary's First Set of
Interrogatories and Request for Production of Documents.
Comparison of these lists indicates that most of Emery's
work force at Wilberg was retained by UP&L, including
several foremen, i.e., Mr. Clifford N. Leavitt, General
Maintenance Foreman; Richard A. Cox, Mine Foreman; Lee
Lemon, Maintenance Superintendent; Harry Earl Snow, General
Mine Foreman; Scott Timothy, Section Foreman; and others.
9. After the December 19, 1984, Wilberg fi~e, UP&L
personnel directly participated in MSHA's investigation
of the fire origin area of the Mine.

The Secretary's footnote reads as follows:
2/ This makes business sense, for as stated above in Paragraph 5, UP&L reimbursed Emery for total production costs,
including costs incurred in complying with federal mining
laws and regulations.

1344

David D. Lauriski, presently UP&L's Safety Director
(formerly Emery's Safety Director), helped plan and direct
UP&L employees in this crucial aspect of MSHA's investigation.
Mr. Lauriski and/or other UP&L personnel were
present or nearby at all times during the underground
investigation (Order, page 4).
10. At their request, UP&L representatives were
present in January 1985, at the initial sworn statement
proceedings held by MSHA during MSHA's investigation of
the Wilberg fire.
(See Appendix B hereto, Secretary of
Labor's Memorandum in Opposition to Motion for Preliminary
Injunction, in pertinent part, pages 1, 3 and 4).
When
the Society of Professional Journalists sought access to
the proceedings, a Temporary Restraining Order was issued
on January 24, 1985, stopping the taking of the sworn
statements.
On February 8, 1985, the U.S. District Court for the
District of Utah issued a preliminary injunction permitting
the taking of statements with MSHA, the State Commission,
and the United Mine Workers of America (UMWA) present.
Emery,
but not UP&L, then filed a complaint asking permission to
participate.
On February 14, 1985, the preliminary injunction
was modified to permit Emery to participate (MSHA Wilberg
Mine Fire Report at page 26).
By its own choice, UP&L never
filed a complaint requesting participation. Verbatim transcripts of the sworn statements taken at the proceedings
were available to the public, including UP&L (Appendix B,
page 4) •
11.
On March 24, 1987, when the mine fire investigation
orders and citations were issued by MSHA, UP&L owned, operated and fully controlled the Wilberg Mine.
<This is indicated by the Legal Identity Reports filed by Emery and
UP&L with MSHA as required by law.
See Exhibits D and E to
the Secretary's Response to Contestant's Motion for Summary
Decision).
At the time the citations and orders were issued,
UP&L, and not Emery, had responsibility for abatement of the
violations and for compliance with mandatory federal mine
safety and health standards at the Wilberg Mine.
In addition,
UP&L, and not Emery, had the responsibility to post the
citations and orders pursuant to Section 109(a), 30 u.s.c.
§ 819(a), of the Mine Act.
Further, as indicated on the face
of the citations and orders issued on March 24 and August 13,
1988, both UP&L and Emery were served copies of the citations/
orders.

1345

On July 6, 1988 UP&L responded to the Secretary's renewed
motion and on July 12, 1988 UP&L moved to vacate the 30 modified
citations and orders dated April 25, 1988.
Extensive briefs were filed by the Secretary and UP&L.
Discussion
The pivotal issue presented by UP&L's motion is whether the
Secretary can modify the 30 citations and orders herein to charge
UP&L with direct liability for the alleged violations.
By way of background:
the Wilberg Mine fire started December
19, 1984. On March 24, 1987 the Secretary issued .citations and
orders charging Emery, as the operator, with 34 Clater increased
to 41) violations of the Act.
The citations and orders further
charged UP&L with derivative liability for Emery's alleged violations as Emery's alleged successor-in-interest.
· In his order of March 9, 1988 in 11 of the pending cases the
Judge ruled that UP&L had not been cited and could not be held as
an operator; further, he ruled that UP&L could not be held liable
as a successor-in-interest, 10 FMSHRC 339.
On April 25, 1988 the Secretary sought to modify 3/ the
citations and orders so as to charge UP&L with direct liability
for the alleged violations as an operator.
In sum, this new
attempt to impose direct liability comes in the 40th month after
the fire and in the 13th month after the citations and orders
were originally issued against Emery.
·on the factual scenario presented here I conclude that the
purported modifications cannot stand. In particular, the modifications are untimely, were not issued "forthwith" nor with "reasonable promptness," and the modification conflicts with the procedural requirements of the Act; further, they are prejudicial to
UP&L.
In review of the untimeline~s issue:
on April 25, 1988 the
Secretary no longer had the authority to modify the 30 citations
and orders since each had already been terminated by MSHA.
Section
104(h) of the Act gives the Secretary the power to modify citations
and orders but this power is not unlimited. The Act provides that

11

The modifications do not change any factual assertions relating
to the individual citations and orders.

1346

a citation or order shall remain in effect until modified or
vacated by the Secretary. Section 104Ch}. But once a citation or
order is no longer in effect because it was terminated it cannot
be modified. Old Ben Coal Co., Docket No. VINC 76-56 (June 15,
1976) CALJ Sweeney). Appeal dismissed, IBMA 76-104 (October 19,
1981). 4/
In Old Ben, a§ 104Cc)(2) order [the predecessor to the
current§ 104(d)(2) order] had been issued under the 1969 Coal
Act, alleging a· violation of 30 C.F.R. § 75.400. After the operator had abated the violation and after MSHA had terminated the
,
order and 11 days after the operator had filed its application for
review challenging the order, MSHA purported to modify the order
to correct certain errors with respect to its recitation of the
necessary underlying elements of the § 104(c) unwarrantable failure
chain. MSHA claimed that the modification was authorized by the
predecessor to§ 104(h), § 104Cg) of the 1969 Coal Act, which
provided that "[a] notice [of violation -- the predecessor of a
citation] or order • • • may be modified or terminated by an
authorized representative of the Secretary."
The Administrative Law Judge held that the order could not be
modified by MSHA after it had already been terminated, noting that
"[no]thing remains to be modified in an order after such order has
been terminated." Unlike "vacation," the Judge explained, termination does not indicate "an expungement ab initio," but rather
"a cessation of continuing liability":
[T)he essential function of a termination is
to give notice to the operator of a cessation
of liability. An operator is entitled to rely
upon the finality of an order upon its termination; and in a section 105(a) review proceeding is entitled to challenge that order
as it is written as of the timer of its
termination.

****
[A] rule of reason must prevail in determining
the time-frame within which [MSHA] may be permitted to modify an order of withdrawal. I
conclude that subsequent to the point of abatement and termination an operator is entitled to

!/

Cited case appended to UP&L's motion filed July 12, 1988.

1347

an assurance that the citation which it seeks to
challenge under the Act is a fixed target. This
is particularly true, as here, where an application [for review -- the predecessor of the notice
of contest] had already been filed [challenging,
as here, the very element MSHA would seek to
change by its modification]. Id. at 10.
Finally, the Judge concluded:
In sum, an operator seeking review of an
order of withdrawal is entitled to rely upon the
form and content of that order as of the filing of
its application for review, where such order has
already been abated and terminated by [MSHA].
Such termination by [MSHA] leaves no operative
part of its order extant, and consequently there
is nothing left of it to modify. Should bona fine
clerical errors exist in the order, then it remains for [MSHA] to argue in a review proceeding
that said errors are harmless, or that they do not
otherwise effect [sic] the validity of the subject
order. But where, as here, the errors are of such
a basic nature • • • , then vacation of the order
is the only appropriate sanction in a section
105(a) review proceeding. Id. at 11.
Similarly, in Peabody Coal Co., Docket No. DENV 77-57-P
(October 21, 1977) (ALJ Sweitzer) a modification was not permitted
where "over two years [had] elapsed since the alleged violation
ha[d] occurred and the attempted modification [was] being requested
after the [civil penalty] petition had been filed and after the
Respondent had moved to dismiss the violation • • • • Slip op.
at 3.
In the instant cases the Secretary wants to change her charge
not only after the notice of contest had been filed (as in Old Ben
and Peabody) but after an order had been entered against her on the
charge she had prosecuted.
In review of the untimeliness issue under § 104: Section
104(d)(l) requires that orders must be issued "forthwith." However, the Secretary's proposed modifications were not issued until
40 months after the alleged violations occurred and until 13 months
after.citations and orders alleging the same violations were issued
to Emery.

1348

It is a fundamental principle of statutory construction that
courts must start with the plain language of the statute.
Rubin
v. United States, 449 U.S. 424, 430 (1981); International Union,
UMWA v. Federal Mine Safety and Health Review Commission, 840
F.2d 77, 81 (D.C. Cir. 1988) ["It is a fundamental rule, too often
neglected, that in statutory construction the primary dispositive
source of information is the wording of the statute itself."
(quoting Association of Bituminous Contractors v. Andrus, 581 F.2d
853, 861 CD.C. Cir. 1978)]. Where the language is clear, courts
must enforce the terms of the statutory provision as they are
written unless it can be established that Congress clearly intended
the words to have a different meaning. Chevron, U.S.A. v. NRDC,
467 U.S. 837, 842-43 (1984) (affirming that where intent of
Congress is clear, agency must follow that intent); United States
Lines v. Baldridge, 677 F.2d 940, 944 (D.C. Cir. 1982); Phelps
Dodge Corp. v. Federal Mine Safety & Health Review Commission, 681
F.2d 1189 (9th Cir. 1982); Freeman United Coal Mining Co., 6 FMSHRC
1577, 1578 (1984).
Section 104Cd) clearly states that unwarrantable failure orders
shall be issued "forthwith." 5/ The words used by Congress are
clear:
the Secretary must issue a § 104Cd) order immediately after

~/

In full, § 104(d)(l) provides that:
If, during the same inspection or any subsequent
inspection of such mine with 90 days after the
issuance of [a§ 104(d)(l) citation] an authorized
representative of the Secretary finds another violation of any mandatory health or safety standard
and finds such violation to be also caused by an
unwarrantable failure of such operator to so comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area
affected by such violation, except those persons
referred to in subsection Cc) 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.
(Emphasis added.)

1349

she finds another unwarrantable failure violation within 90 days
of the issuance of a§ 104Cd)(l) citation. 6/ See Greenwich
Collieries, 9 FMSHRC 2051, 2055-56 (1987) CALJ Maurer), review
pending. Furthermore, there is no language in § 104Cd> which
could authorize, either explicitly or implicitly, the Secretary
to delay for over 13 months in modifying the orders to charge UP&L
with direct liab.ili ty • See International Union, UMWA v. MSHA,
823 F.2d 608, 617 CD.C. Cir. 1987).
Further indicating the Congressional intent i$ the fact
that § 104(d) does not contain a savings clause. For example,
a § 104(a) citation must be issued with reasonable promptness.
But the Act provides that "reasonable promptness shall not be a
jurisdictional prerequisite to the enforcement of any provision of
the Act," 30 U.S.C. § 814Ca). The omission of a similar provision
in § 104Cd) is significant because it is evident that if Congress
ha~ intended to include such a savings clause it knew how to do so;
Clark-Cowlitz Joint Operation Agency v. FERC, 798 F.2d 499, 502
(D.C. Cir. 1986> (Congress demonstrated that it knew how to
restrict the duration of a privilege by including a temporal limit
in Exemption 9 and the absence of such a limit in Exemption' lo
shows none was intended); Gray v. OPM, 771 F.2d 1504, 1511 (D.C.
Cir. 1985), ~- denied, 475 U.S.· 1089 ( 1986).
In sum, the Act does not authorize the Secretary to delay for
13 months the issuance of § 104(d) orders. Further, the§ 104Ca)

§j

According to common, ordinary usage, the term "forthwith"
means "immediately." See~., Webster's New Collegiate Dictionary
(1979). Congress' use of the term "forthwith" in the context of
providing notice to operators under§ 103Cg>Cl> of the existence of
an imminent danger -- where the concern of protecting miners right
away is primary -- indicates that Congress intended forthwith to
mean immediately.

1350

citations were not issued with "reasonable promptness" ~/ as required by the Act.
While reasonable promptness is not a per se jurisdictional
bar to their issuance, the legislative history indicates there
must be a reasonable basis for the delay, such as a "protracted
accident investigation." S.Rep. No. 181, 95th Cong., 1st Sess. 30
(1977). Here,· the protracted accident investigation could justify
the initial delays. But by August 13, 1987 the last of the citations and orders had been issued and there appears to be no
legitimate basis for the further delay until April 1988 to cite
UP&L.
Nor are there any safety issues to justify the delay. As is
evident from the face of the citations and orders themselves, any
violations that existed at the time of the fire have long since
been abated.
In her response to UP&L's motion to vacate the Secretary
asserts the modifications of the citations and orders were timely.
(Response filed August 1, 1988 at 8 - 13.)

ll

Section 104Ca> provides, in full, as follows:
"Sec. 104Ca> If, upon inspection or investigation, the
Secretary or his authorized representative believes that
an operator of a coal or other mine subject to this Act
has violated this Act, or any mandatory health or safety
standard, rule, order or regulation promulgated pursuant
to this Act, he shall, with reasonable promptness, issue a
citation to the operator. Each citation shall be in writing
and shall describe with particularity the nature of the
violation, including a reference to the provision of the
Act, standard, rule, regulation, or order alleged to have
been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The requirement for the issuance of a citation with reasonable promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act. (Emphasis added.)

1351

I recognize that considerable delay was caused due to the
condition of the mine after the fire and the necessary laboratory
studies. But the fact remains that the last of the citations
were issued on August 13, 1987; further, the modifications of the
citations and orders were issued against UP&L on April 25, 1988.
The Secretary relies on proceedings before the Commission to
justify the delay but I am not aware that such proceedings justify
a further delay in the issuance of 104(a) and 104Cd) citations and
orders.
In support of her position the Secretary also cites Greenwich
Collieries, 9 FMSHRC 2051 (1987), pending on appeal.
It may be
that the resolution of Judge Maurer's case will have a bearing on
the issues argued here.
In review of the "procedural shortcut" issue:
In the order of dismissal issued by the Presiding Judge on
March 9, 1988 involving other related cases, it was noted that
"procedural shortcuts" have been condemned by the Commission. In
reaching this conclusion the Judge relied on the Commission
decision in Monterey Coal Company, 7 FMSHRC 1004 (1985) and he
emphasized that:
The foundational principles set forth in Monterey
bar the Judge from holding UP&L liable for civil
penalties assessed directly against it as a mine
operator in the absence of UP&L being cited as an
operator and a civil penalty being proposed against
it directly. UP&L has only been cited, and it is
being subjected to civil penalty liability in these
proceedings, for Emery's alleged violations. Had
UP&L been cited as an operator, the entire course
of this litigation would have been different. Any
proposed penalties assessed by MSHA against UP&L
as an operator would most likely have been dramatically lower. This is one of the reasons why the
Commission in Monterey would not allow the Secretary
to shortcut the Act's required procedures by commencing a proceeding against Frontier-Kemper in
the midst of an ongoing proceeding against another
operator. As the Commission explained:

1352

our insistence on the need for compliance
with the procedural requirements [of the
Act for initiating such proceedings] also
serves a practical purpose and furthers
the enforcement scheme contemplated by
Congress in the Mine Act. Providing a
mine operator with the opportunity to pay
a civil penalty before the institution of
litigation promotes judicial and administrative economy and can assist more expeditious
·resolution of enforcement disputes.
7 FMSHRC at 1007. See also Phil Baker v. U.S.
Department of InterTOr BO'a'rd of Mine Qperations
Appeals, 595 F.2d 746 CD.C. Cir. 1978), wherein
the Court held that a judge could not find a
violation of a mandatory safety standard absent
the particular statutory proceedings for bringing
that issue to federal attention.
595 F.2d at 750.
Emery Mining Corporation, et al, 10 FMSHRC at 352
(emphasis in original).
The prior ruling provides that the Act does not permit the
Secretary to prosecute UP&L for a violation without "a civil
penalty being proposed against it directly." The Secretary's
30 modifications seek to do that and constitute a procedural
shortcut. Additional substantive rights effectively denied UP&L
are the right to participate in any investigation relating to the
citations and orders, the right to have an individualized penalty
assessment, the right to participate in an assessment conference
and the right to pay any penalty rather than litigate Emery's
proposed assessments.
The secretary states that she did not take procedural shortcuts. She states UP&L and Emery were cited from the beginning
(date of issuance) and the Secretary intended and proposed only one
penalty per violation against both of them jointly. (Secretary's
response to UP&L's motion filed August 1, 1988 at 11, 12.) The
Secretary states that obviously in a practical and equitable
sense, in this case, one penalty for two co-operators is more
appropriate and more fair than a separate penalty for each operator.
This Judge is bound to follow Commission precedent. The
Monterey case is clear on the issue of procedural shortcuts.
Accordingly, the Secretary's position is rejected.
In review of the pre~udice issue:
has not been prejudiced. I

!/

the Secretary contends UP&L

Response to motion to vacate <pages 12, 13) filed August 1,
1988.
1353

The Presiding Judge stated in his order of March 9, 1988 as
follows:
"UP&L was not cited as an operator but as a successorin-interest. An enforcement action cannot be sustained absent
implementation by the issuance of a citation or order against UP&L
as an operator, Act§ 104Ca)(d) ." 10 FMSHRC at 349. This ruling
is now a final order of the Com.mission. The prejudice, as detailed above, flows from the failure to cite UP&L as an operator.
In short, since UP&L was not cited as an operator it did not
receive the statutory rights mandated under the Mine Act.
On the issue of prejudice to UP&L, the Secretary argues that
UP&L has been cited and served copies of the citations and orders.
It, indeed, did contest all 41 citations and orders, and it did,
indeed, contest all the civil penalties assessed herein.
Further, she contends UP&L is not accurate when it states that
during the accident investigation MSHA expressly determined that
UP&L was not an operator. During the post-fire investigation,
UP&L did not present itself as an operator of the Wilberg Mine but,
to the contrary, it presented itself as a somewhat distant owner
of the mining rights. UP&L's request to participate in the body
recovery, was not as an operator but as a likely party to future
tort litigation. While UP&L did not participate in the taking of
sworn statements, all information relating to the sworn statements
taken, Cnot confidential), and any equipment or laboratory results
were made available to UP&L and the public. UP&L personnel were
in charge of the physical recovery and were present during MSHA's
most crucial part of its investigation.
The Secretary further argues that UP&L had proper and fair
notice that it was cited as an operator at the time of issuance of
the original and subsequent citations. The fact that under the
modifications it was expressly labeled an owner-operator as well as
a successor-in-interest only clarified their prior notice of being
an operator under the Mine Act.
In both instances, UP&L was named
under the "operation" blocks on the citation/order/ subsequent
action forms. Modification to clarify previously issued citations
and orders are permitted in a proceeding and do not constitute
prejudice. See Jim Walters Resources, Inc., l FMSHRC 1827, 1979.
(Argument from Secretary's response filed August 1, 1988 at 12,
13).
The prejudice to UP&L is as previously stated. The Secretary's suggestions are basically practical reasons why UP&L was
not prejudiced. But the fact remains that the Mine Act vests in a
cited operator certain rights. They were not provided to UP&L and,
because of that failure, I reject the Secretary's position.

1354

For the foregoing reasons the 30 citations and orders, as
modified, dated April 25, 1988, should be dismissed as to UP&L.
UP&L's motion to vacate raises additional issues that should
be addressed. The issues generally focus on the assertion that the
Secretary's change of theories with respect to UP&L constitutes an
abuse of her prosecutorial discretion, was vindictive and, as a
result, UP&L is entitled to any costs incurred as a result of the
modifications. ~/
In support of its position UP&L relies on Thigpen v. Roberts~
468 U.S. 27, 30; U.S. v. Goodwin, 457 U.S. 368; Hardwick v Doolittle, 558 F.2d 292, 5th Cir. 1977, cert. denied, 434 U.S. 1049
(1978) among other cases.
~~
On the other hand, the Secretary argues that the Commission
has authorized amendments, corrections and modifications long after
citations have been terminated citing Jim Walter Resources, Inc.
and Cowen and Co., 1 FMSHRC 1827 (1979); and Ralph Foster and Sons,
3 FMSHRC 1181 (1981).
(In the two cases cited by the Secretary the
Commission particularly found a lack of prejudice, 1 FMSHRC at
1829 and 3 FMSHRC at 1181.)
Further, the Secretary argues that the law is clear: she
has broad authority and discretion to cite parties under the Act.
The Secretary relies on Bituminous Coal Qperator's Association v.
Secretary of the Interior, 547 F.2d 240 (4th Cir. 1977); Harman
Mining Corporation v. Federal Mine Safety and Health Review
Commission, 671 F.2d 794 at 797 <4th Cir. 1981); and Secretary of
Labor v. Cathedral Bluffs Shale Oil, 796 F.2d 533 at 538 CD.C. Cir.
1986).
As a background matter: these cases have certainly been
vigorously prosecuted as well as vigorously defended.
In fact,
to date the Presiding Judge has ruled on ten complex motions for
summary decision, two motions to reconsider and one motion in
limine. The judge believes the parties have the right under the
A.P.A., 5 u.s.c. § 554, 556, and the Mine Act to vigorously pursue
their cases if they desire to do so.

~/

UP&L's motion to vacate filed July 12, 1988, at 22 - 32.

1355

The Secretary explains that she did not appeal the Judge's
ruling of March 9, 1988 because it was decided that (1) appeal
of the order as to paid cases [paid by Emery] was inappropriate
and legally unsupportable and <2> if there was an avenue to
eliminate the legal concern over the form of the citations and
orders still at issue, it should be taken now.
And,in fact, it
was taken with the modification of the citations and orders filed
by the Secretary.
No record of proceedings is available on the issue of an
asserted abuse of discretion. But th~ Secretary's broad enforcement authority and her stated reasons, if established, could
constitute persuasive evidence in support of her position that
her actions were not an abuse of discretion nor vindictive.
While an order of dismissal is to be entered vacating the
30 modified orders and citations as to UP&L, it is nevertheless
appropriate to consider the issues raised by the Secretary in her
renewed motion for a summary decision.
The focus of the Secretary's motion is threefold. Initially
she asserts the indemnity agreement for the payment of any civil
penalties does not nullify UP&L's legal status as an owneroperator. 10/ Further, she claims UP&L is liable under the Mine
Act as an owner-operator. 11/ Finally, she contends UP&L is liable
under the Mine Act as a successor-in-interest operator. 12/
I agree the indemnity agreement does not nullify UP&L's legal
status.
International Union, UMWA v. Federal Mine Safety and
Health Commission, et al, 840 F.2d 77, D.C. Cir. 1988). However,
the Secretary's argument is misdirected.
It is true that any
owner can be cited. But UP&L was not so cited and the Secretary's
efforts to impose liability at this point in time cannot be
sustained.
In arguing that UP&L is liable as an owner-operator the
Secretary relies on Section 3(d) of the Act as well as the frequently cited cases of Bituminous Coal Qperator's Association v.
Secretary of Interior, supra, and Harman Mining Corporation v.
Federal Mine Safety and Health Review Commission, supra. She
particularly relies on certain asserted facts and newly discovered
evidence consisting of the 1979 Coal Mining Agreement between UP&L
and the American Coal Company (Emery's predecessor).

10/

Secretary's renewed motion, filed May 17, 1988, at 10, 11.

ll:_I

Renewed motion, at 14.

12/

Renewed motion, at 14.
1356

The Secretary's argument is not persuasive. UP&L does not
dispute "that it has been the owner of the coal mineral rights
for the Wilberg Mine since 1976; or that it contracted with Emery
to operate the mine; or that it had an engineer present at the
mine; or that it purchased and owned the major mining equipment;
or that it agreed upon production goals for the mine with Emery;
or, finally, that it retained many of Emery's employees, including
Dave Lauriski, when it eventually took over the operation of the
mine in the spring of 1986. Nor does UP&L deny responsibility for
the 'Total Cost of Production' for the mine. None of the facts
asserted by the Secretary, however, indicate that on a day-to-day'
basis, UP&L operated, controlled or supervised the production
process at the mine. They only demonstrate that UP&L played the
ordinary role of a mineral owner that contracts with another
company to operate a mine for it." 13/
For the reasons previously discussed UP&L could not be liable
as an operator even pursuant to the renewed motion since it was
never (until now) cited as an operator, cooperator, or joint
adventurer of a joint venture. In any event, the evidence relied
on by the Secretary to establish a "close nexus" between UP&L and
Emery would have been relevant if UP&L had been originally cited as
an operator. But UP&L was not so cited.
Finally, the Secretary reasserts her position that UP&L is
liable as a successor-in-interest. The Judge specifically ruled,
in his order of dismissal of March 9, 1988, that the successor-ininterest doctrine did not apply to UP&L.
Emery Mining Corporation,
et al, 10 FMSHRC at 353. It is unnecessary to further review this
issue other than to reaffirm the previous holding.·
The extensive and excellent briefs filed by the parties have
been most helpful in assisting the Judge in his analysis of the
issues. However, to the extent that such briefs are inconsistent
with this order, they are rejected.
For the reasons stated herein the following order is appropriate:

13/ UP&L's Response to Secretary's Renewed Motion filed July 6,
1988 at 5.

1357

ORD.ER

1. Utah Power and Light Company's motion to vacate the 30
modified citations and orders dated April 25, 1988 is granted.
2. The 30 modified citations and orders dated April 25, 1988
are vacated as to Utah Power and Light Company.
3. The Secretary's renewed motion for a summary decision
,
against Utah Power and Light Company filed May 17, 1988 is denied.

4. The Presiding Judge retains jurisdiction for all issues
involving Emery Mining Corporation.
5. The hearing on the merits will proceed as scheduled on
October 4, 1988 in Price, Utah.

Law Judge

Distribution:
Timothy M. Biddle, Esq., Thomas C. Means, Esq., Susan E. Chetlin,
Esq. and Kevin Darken, Esq., Crowell & Moring, 1001 Pennsylvania
Ave., N.W., Washington, D.C. 20004 (Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 Fifteenth
Street, N.W., Washington, D.C. 20005 (Certified Mail)
/ot

1358

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

22041

703-756-6232
September 1, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
PATRICK STANFIELD,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. KENT 88-171-D
MSHA Case No. BARB CD 88-25
MSHA Case No. BARB CD 88-28
Stinson No. 7 Mine

NATIONAL MINES CORPORATION,
Respondent
ORDER
Statement of the Case
This is a discrimination proceeding filed by the Secretary
against the respondent pursuant to section 105(c) (2) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (2).
On July 25, 1988, the complaining miner, Patrick Stanfield, by
and through his private counsel, Tony Oppegard, Appalachian
Research & Defense Fund of Kentucky, Inc., Hazard, Kentucky,
filed a Notice of Intervention as a party in this case pursuant
to Commission Rule 4(b), 29 C.F.R. § 2700.4(b), and requested
that he be served with all pleadings, notices, and other papers
filed in this matter.
The cited rule provides as follows:
2700.4

Parties

*

*

*

*

*

*

*

(b)
Procedure for miners and their
representatives to become parties--(1) Generally.
Affected miners or their representatives may
intervene before hearing by filing a written
notice with the Executive Director, Federal Mine
Safety and Health Review Commission, 1730 K Street,
N.W., Sixth Floor, Washington, D.C. 20006. The
Executive Director shall forthwith mail a copy of
the notice to all parties. Affected miners or
their representatives mav intervene after the
start of the hearing upon just terms and for good
cause shown.

1359

(2)
Special procedure for discrimination
proceedings.
In a proceeding instituted by the
Secretary under § 2700.40, the complaining miner,
applicant for employment or representative of
miners may intervene and present additional evidence on his own behalf.
On July 29, 1988, the Secretary filed an objection to
Mr. Stanfield's intervention as a party, and stated that while
she does not object to Mr. Stanfield's intervention as provided
for by section 105(c) (2) of the Act, and Commission Rule 4(b) (2),
29 C.F.R. § 2700.4(b) (2), she does object to the designation of
party status for Mr. Stanfield, and to his participation in this
case beyond that which is specifically set out in the cited
statutory section and Commission procedural rule.
Section 105(c) (2) of the Act states as follows:
The complaining miner, applicant, or representative of miners may present additional evidence on
his own behalf during any hearing held pursuant to
this paragraph.
Commission Rule 4(b) (2), 29 C.F.R.
as follows:

§

2700.4(b) (2), provides

Special Procedure for Discrimination
Proceedings: In a proceeding instituted by the
Secretary under § 2700.40, the complaining miner,
applicant for employment or representative of
miners may intervene and present additional evidence on his own behalf.
On August 1, 1988, Mr. Oppegard filed a response to the
Secretary's objection, and asserted that contrary to the position taken by the Secretary, Commission Rule 4(a), 29 C.F.R.
§ 2700.4(a), provides party status for 'an affected miner such
as Mr. Stanfield upon intervention. The cited rule provides
in relevant part as follows:
(a)
~arty status.
Persons, including the
Secretary and operators, who are na,med as parties or
permitted to intervene, are parties. A miner . .
who has filed a complaint with the Secretary or
Commission under sections 105(c) or 111 of the Act
. and an affected miner . • . who has become a
party in accordance with paragraph (b) of this
section, are parties.
(Emphasis added).

1360

Discussion
· Although given an opportunity to respond to the party
status issue raised by the Secretary and Mr. Stanfield's counsel,
the respondent has taken no position on this question. The
Secretary's position is that while Mr. Stanfield may intervene
in this matter, his participation is limited to the presentation
of additional evidence at the hearing on his own behalf.
In a further response received from Mr. Oppegard on
August 23, 1988, clarifying his position, he points out that
pursuant to the Commission rules, an affected miner such as
Mr. Stanfield, may intervene before hearing as a matter of
right, and need not move the Court for permission to intervene,
as required by parties other than affected miners. Mr. Oppegard
seeks an opportunity for a more expansive role by Mr. Stanfield
in the pursuit of his discrimination claim, while at the same
time recognizing the fact that the Secretary is chiefly responsible for the prosecution of this proceeding.
Mr. Oppegard takes the position that when Congress and the
Commission determined that miners are allowed to intervene and
to "present additional evidence on their own behalf," they did
not intend to deny miners the tools to protect their interests,
nor did they intend to deny them dues process. Mr. Oppegard
points out that party status is critical to Mr. Stanfield
because pursuant to the Commission's procedural rules, parties
have the right to obtain discovery, to take depositions, to
serve interrogatories and requests for production of documents,
to subpoena witnesses, and to submit rebuttal evidence and to
cross-examine witnesses at the hearing. By limiting
Mr. Stanfield's participation to the presentation of additional
evidence on his own behalf during any hearing, Mr. Oppegard
suggests that Mr. Stanfield's participation will be less than
meaningful, and would deny him the full participatory rights
afforded other parties in proceedings of this kind. Without
these rights, Mr. Oppegard believes that Mr. Stanfield's participation as an intervenor "would be hollow indeed."
CONCLUSION AND ORDER
After careful consideration of the arguments presented by
the parties, I conclude and find that Mr. Cppegard's position is
correct. Since Mr. Stanfield has intervened in this matter pursuant to Commission Rule 4(b), it seems clear to me that he
should be accorded party status pursuant to Commission Rule 4(a),
and IT IS SO ORDERED.

A/
/:; /?-~-h/';~{ff:out~
~~:~istrative Law Judge

1361

Distribution:
Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Charles Baird, Esq., 415 Second Street, Post Office Box 351,
Pikeville, KY 41501 (Certified Mail)
Tony Oppegard,_ Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., P.O. Box 360, Hazard, KY 40701 (Certified Mail)
/fb

1362

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

September 7, 1988

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

v.
COLUMBIA PORTLAND CEMENT
COMPANY,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. LAKE 88-54-M
A.C. No. 33-03990-05521

.
. Jonathan Limestone Mine
.
:

ORDER OF APPROVAL AND ORDER TO PAY FOR ONE SETTLEMENT
ORDER OF DISAPPROVAL AND ORDER TO SUBMIT
INFORMATION FOR NINETEEN SETTLEMENTS
Before:

Judge Merlin

This case is a petition for the imposition of civil
penalties for 20 violations originally assessed at $20 each
for a total of $400. The proposed settlements are for the
original amounts. As set forth herein, I approve one of the
recommended settlements based upon information contained in
the citation, but I am unable to approve the remaining 19
because the present record contains insufficient information.
Citation No. 3058714
According to the Solicitor, this citation was issued fdr
a violation of 30 C.F.R. § 56.14006, because the guard for the
self-cleaning tail pulley on the No. 9 auxiliary belt conveyor
was not securely in place while the machine was in operation.
The Solicitor asserts:
"The probability of the occurrence of
an event against which the cited standard is directed was
unlikely. The gravity of projected injury had an incident
occurred could result in permanent disability. The operator
exhibited moderate negligence· in not guarding the belt
conveyor."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions. Therefore, I have no basis to accept his representations. Although
the citation recites that the belt was not in operation, it

1363

further states the electrical circutt was energized. More
information is needed for me to make a determination on
gravity. Also, under such circumst~nces where likelihood is
not explained, I have particular difficulty in approving a $20
penalty when the Solicitor tells me the projected injury is
permanent disability.
Citation No. 3058715
According to the Solicitor, this citation w~s issued for
a violation of 30 C.F.R. § 56.9022, because berms were not
provided for the outer banks of the elevated roadway leading
to the hopper above the auxiliary No.· 9 belt conv~yor for a
distance of approximately 15 feet. The Solicitor asserts:
"The probability of the occurrence of an event against which
the cited standard is directed was unlikely. The gravity of
projected injury had an accident occurred could result in
permanent disability. The operator exhibited moderate negligence in not providing a berm for the elevated roadway."
The Solicitor gives no reasons for any of the foregoing
conclusions, but the citation state~that the roadway was not
being used at this time. On this basis I find the violation
was non-serious and approve the $20 settlement.
Citation No. 3059190
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12025, because the conduit used
as a grounding conductor for the stop switch on the No. 9
auxiliary feed belt located at the finishing mill was broken
in two places. The' Solicitor asserts: "The probability of
the occurrence of an event against w~ich the cited standard is
directed was unlikely. The gravity of projected injury had an
accident occurred could result in lost workdays or restricted
duty. The operator exhibited moderate negligence in not providing adequate protection for the grounding conductor."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions,
especially likelihood of occurrence. Therefore, I have no
basis to accept his representations.
Citation No. 305g192
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12032, because the junction box
cover for the tailing screw beside the No. 2 elevator in the
basement of the baghouse was missing exposing the conductors
to damage. The Solicitor asserts: "The probability of the

1364

occurrence of an event against which the cited standard is
directed was unlikely. The gravity of projected injury had an
incident occurred could result in a fatality. The operator
was moderately negligent in not adequately covering the
junction box."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions,
especially likelihood of occurrence. Therefore, I have no
basis to accept his representations. Also, under such circumstances where likelihood is not explained, I have particular
difficulty in approving a $20 penalty when the Solicitor tells
me the projected injury is fatal.
Citation No. 3059193
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12025, because the 120 volt fan
located at the loading dock door of the bag storage room was
not equipped with a grounding conductor. The Solicitor
asserts: "The probability of the occurrence of an event
against which the cited standard is directed was unlikely.
The gravity of projected injury in the event of an accident
could result in permanent disability. The operator exhibited
moderate negligence in not equipping the fan with a grounding
conductor."
using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations. Additionally, the Solicitor
incorrectly represents the gravity of this citation. The
citation lists gravity as lost workdays or restricted duty,
although the Solicitor represents it as permanent disability.
Citation No. 3059194
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12025, because the conduit on
the alarm switch at the No. 5 packer station in the baghouse
was broken. The citation recites that the condition put added
strain on the connections in the switch. The Solicitor
asserts:
"The probability of the occurrence of an event
against which the cited standard is ctirected was unlikely.
The gravity of projected injury had an accident occurred could
have resulted in lost workdays or restricted duty. The operator exhibited moderate negligence in not having repaired the
broken conduit."

1365

using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions,
especially likelihood of occurrence. Therefore, I have no
basis to accept his representations.
Citation No. 3059196
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12025, because the conduit
holding the light outside of the car shop was broken. The
Solicitor asserts: "The probability of the occurrence of an
event against.which the cited standard is directed was
unlikely. The gravity of projected injury had an accident
occurred could have resulted in lost workdays or restricted
duty. The operator exhibited moderate negligence in not
having repaired the broken conduit."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions,
especially likelihood of occurrence. Therefore, I have no
basis to accept his repre~entations.
Citation No. 3058720
According to this Solicitor, this citation was issued for
a violation of 30 C.R.R. § 56.11001, because a spill of
limestone had accumulated on the first landing below the top
floor of the raw mill building. The citation recites that the
condition put excess weight on the floor. The Solicitor
asserts:
"The probability of the occurrence of an event
against which the cited standard is directed was unlikely.
The gravity of projected injury had an accident occurred could
have resulted in lost workdays or restricted duty. The operator exhibited moderate negligence in not cleaning the spilled
limestone."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions,
especially likelihood of occurrence. Therefore, I have no
basis to accept his representations.
Citation No. 3059385
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12028, because the continuity
and resistance of the grounding system for the plants and mine
had not been tested on an annual basis. The last date of test
was March 10, 1986. The Solicitor asjerts: "The probability
of the occurrence of an event against which the cited standard

1366

is directed was unlikely. The gravity of projected injury in
the.event of an accident could be fatal. The operator
exhibited moderate negligence in not conducting the annual
testing in a timely manner."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions,
especially likelihood of occurrence. Therefore, I have no
basis to accept his representations. Also, under such circumstances where likelihood is not explained, I have particular
difficulty in approving a $20 penalty when the Solicitor tells
me the projected injury is fatal.
Citation No. 3059386
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12034, because the 110-volt
light bulb on the extension light in the machine shop was not
guarded. The light was 4 feet above the floor and presented a
burn hazard. The Solicitor asserts:
"The probability of the
occurrence of an event against which the cited standard is
directed was unlikely. The gravity of projected injury in the
event of an accident could result in lost workdays or
restricted duty. The operator exhibited moderate negligence
in not guarding the light."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions,
especially likelihood of occurrence. Therefore, I have no
basis to accept his representations.
Citation No. 3059388
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12008, because the 440-volt
cables did not enter the metal frame of the No. 3 motor
control center through proper bushings and fittings. The
motor control center was located on the fourth floor of the
raw mill. The Solicitor asserts:
"The probability of the
occurrence of an event against which the cited standard is
directed was unlikely. The gravity of projected injury in the
event of an accident could result in lost workdays or
restricted duty. The operator exhibited moderate negligence
in not providing proper insulation."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions,
especially likelihood of occurrence. Therefore, I have no
basis to accept his representations.

1367

Citation No. 3059422
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.420l(a)tl), because the fire
extinguishers located in the raw mill were not inspected on a
11
monthly basis. The Solicitor asserts:
The probability of
the occurrence of an event against which the cited standard is
directed was unlikely. The gravity of projected injury in the
event of an accident could result in lost workdays or
restricted duty. The operator exhibited moderate negligence
in not checking the fire extinguishers on a month+y basis."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions,
especially likelihood of occurrence. Therefore, I have no
basis to accept his representations. Additionally, the
Solicitor incorrectly represents the gravity of this citation.
The citation lists gravity as no lost workdays, although the
Solicitor represents it as lost workdays or restricted duty.
Citation No. 3059392
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12020, because an insulation mat
was not provided for the disconnect switches and breaker controls located in the basement of the packhouse. The Solicitor
11
asserts:
The probability of the occurrence of an event
against which the cited standard is directed was unlikely.
The gravity of projected injury in the event of an accident
could result in lost workdays or restricted duty. The operator exhibited moderate negligence in not providing an
insulation mat."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefo~e, I have no basis
to accept his representations. Additionally, the Solicitor
incorrectly represents the gravity of this citation. The
citation lists gravity as fatal, although the Solicitor
represents it as lost workdays or restricted duty. Finally,
under such circumstances where likelihood is not explained, I
have particular difficulty in approving a $20 penalty when the
citation indicates the projected injury is fatal.
Citation No. 3059393
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12034, because guards were not

1368

provided for two light bulbs in the west tunnel of the packhouse •. The light bulbs were approximately 5 feet above the
walkway. The Solicitor asserts:
"The probability of the
occurrence of an event against which the cited standard is
directed was unlikely. The gravity of projected injury in the
event of an accident could result in lost workdays or
restricted duty. The operator exhibited moderate negligence
in not providing guards for the light bulbs."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations.
Citation No. 3059394
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12025, because the grounding
conductor on the motor for the fan in the packhouse was not
adequately affixed. The Solicitor asserts:
"The probability
of the occurrence of an event against whicn the cited standard
is directed was unlikely. The gravity of projected injury in
the event of an accident could result in lost workdays or
restricted duty. The operator exhibited moderate negligence
in allowing this violation to exist."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations.
Citation No. 3059397
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12020, because an insulation mat
was not provided on the concrete floor in the motor control
center for the precipitator building. The Solicitor asserts:
"The probability of the occurrence of an event against which
the cited standard is directed was unlikely. The gravity of
projected injury in the event of an accident could result in
lost workdays or restricted duty. The operator exhibited
moderate negligence in not providing an insulation mat."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations.

1369

Citation No. 3059398
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12030, because the conduit for
the motor for the No. 5 side gather up screw conveyor was
broken in two places. The Solicitor asserts:
"The probability of the occurrence of an event against which the cited
standard is directed was unlikely. The gravity of projected
injury in the event of an accident could result in lost workdays or restricted duty. The operator exhibited moderate
negligence in allowing this violation to exist."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations.
Citation No. 3059423
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.4102 because an accumulation of
oil on the floor of the compressor room in the basement of the
packhouse. The citation recites that the oil had run under
and into the 440-volt electrical motor control panel, creating
a fire hazard. The Solicitor asserts:
"The probability of
the occurrence of an event against which the cited standard is
directed was unlikely. The gravity of projected injury in the
event of an accident could result in lost workdays or
restricted duty. The operator exhibited moderate negligence
in allowing this violation to exist."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations. Although the citation recites
that a fire extinguisher was nearby, more information is
needed for me to make a determination on gravity since the oil
had spread under the electrical panel. Citation No. 3059424
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.17001, because illumination was
not sufficient to provide safe working conditions in the east
tunnel of the packhouse. Light bulbs were either missing or
burned out for a distance of approximately 80 feet. The
Solicitor asserts:
"The probability of-t.he occurrence of an
event against which the cited standard is directed was
unlikely. The gravity of projected injury in the event of an

1370

accident could result in lost workdays or restricted duty.
The operator exhibited moderate negligence for allowing the
violation to exist."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations.
Citation No. 3059404
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12032, because the cover plate
on the junction box at the head pulley of the coal incline
belt was missing. The citation recites that the condition
exposed conductors on the junction box to damage at the head
pulley of the incline belt. The Solicitor asserts:
"The
probability of the occurrence of an event against which the
cited standard is directed was unlikely. The gravity of
projected injury in the event of an accident could result in
lost workdays or restricted duty. The operator exhibited
moderate negligence in allowing this violation to exist."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations.
Discussion of Settlement Disapprovals
The conclusions which the Solicitor uses each time regarding probability of occurrence are, of course, intended to
satisfy the Secretary of Labor's regulation for single penalty
assessments (30 C.F.R. § 100.4). In effect, a single penalty
assessment of $20 is available under this rule, if the violation is not "significant and substantial," as that term of art
has been interpreted by the Commission in contest cases under
section 104(d) of the Act.
30 U.S.C. § 814(d). Due to the
absence of any data or reasoning to support his bare assertions, it appears that the Solicitor in this case has not
satisfied the Secretary's requirements for imposition of a $20
penalty.
However, the issue in this case is not whether the
Secretary of Labor's regulations are met.
It is well established that penalty proceedings before the Commission are
de novo.
Neither the Corrunission nor its Judges are bound by
the Secretary's regulations or proposed penalties. Rather,
they must determine the appropriate amount of penalty, if any,

1371

in accordance with the six criteria set forth in section
llO(i) of the Act.
30 u.s.C. § 820(k). Sellersburg Stone
Company v. Federal Mine Safety and Health Review Commission,
736 F.2d 1147 (7th Cir. 1984). Wilmot Mining Company,
9 FMSHRC 686 (April 1987). U.S. Steel, 6 FMSHRC 1148 (May
19 84).
The Commission and its Judges bear a hea~1y responsibility
in settlement cases pursuant to section llO(k) of the Act,
30 U.S.C. § 820(k), which provides:
Ck) No proposed penalty which has been
contested before the Commission under section
105(a) shall be compromised, mitigated, or
settled except with the approval of the
Commission. * * *
The legislative history makes clear Congress' intent in
this respect: See S. Rep. No. 95-181, 95th Cong., 1st Sess.,
44-45 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act
of 1977, at 632-633 (1978).
In order to support his settlement recommendations, the
Solicitor must present the Commission Judge with information
sufficient to satisfy the six statutory criteria in section
llO(i) with respect to the instant citations. I accept the
Solicitor's statistics regarding history and in absence of any
evidence to the contrary, I accept his representations regarding good faith abatement and ability to continue in business.
However, the Solicitor's representation of the operator
as small in size cannot be accepted on the present record.
The Proposed Assessment sheet gives the company's annual hours
worked as 1,088,152 and the mine's annual hours worked as
417,735. The Solicitor should explain why he believes the
operator is small.
No information is given to support the Solicitor's representation that in all these citations, the operator was guilty
of moderate negligence. The Solicitor has merely relied upon
the box checked by the inspector on the citation. Accordingly,
on the critical statutory criterion of negligence, I have no
basis to make the necessary determinations for nineteen of the
citations, as set forth above.
So too, in these nineteen citations no information is
given for me to make findings on gravity. As already noted,

1372

the Solicitor's unsupported representations relate to "significant and substantial" not "gravity." The Commission has
pointed out that although the penalty criterion of "gravity"
and the "significant and substantial" nature of a violation
are not identical, they are based frequently upon the same or
similar factual considerations. Quinland Coals, Inc.,
9 FMSHRC 1614, 1622 n. 11 (September 1987). Youghiogheny and
Ohio Coal Company, 9 FMSHRC 2007, 2013 (December 1987). Here
no factual considerations have been given upon which I can
decide gravity. A violation conceivably could possess some
degree of gravity, but still not rise to the level of significant and substantial. As a general matter, $20 would appear
to be a nominal penalty appropriate for a non-serious violation, in absence of other unusual circumstances. But here
again, the Solicitor has merely relied upon the box checked by
the inspector on the citation. Accordingly, for the crucial
statutory criterion of gravity, I have no basis to make the
necessary determinations.
In light of the foregoing, the recommended settlements
for 19 citations cannot be accepted on the present record.
ORDER
Accordingly, it is Ordered that the recommended settlement
of $20 be Approved for the following citation:
Citation No. 3058715
It is further Ordered the operator pay $20 for this
citation within 30 days from the date of this decision.
It is further Ordered that the recommended set~lements be
Disapproved and that within 30 days from the date of this
order, the Solicitor submit sufficient information for me to
make proper settlement determinations under the Act with
respect to the following 19 citations:
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

3058714
3059190
3059192
3059193
3059194
3059196
3058720
3059385
3059386
3059388
3059422

1373

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

3059392
3059393
3059394
3059397
3059398
3059423
3059424
3059404

-Distribution:
Christopher J. Carne~, Esq., Office of the Soli~itor, U.S.
Department of Labor, 881 Federal Office Building, 1240 East
Ninth Street, Cleveland, OH 44199 (Certified Mail)
Michael M. Roman, Vice President, Industrial Relations,
Columbia Portland Cement Company, P.O. Box 1531, Zanesville,
OH 43701 (Certified Mail)

/f b

1374

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

September 7, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
V;.

COLUMBIA PORTLAND CEMENT
COMPANY,
Respondent

.:

CIVIL PENALTY PROCEEDING

:
:

Docket No. LAKE 88-55-M
A.C. No. 33-03990-05522

.
: Jonathan Limestone Mine
.
..

ORDER OF APPROVAL AND ORDER TO PAY FOR FOUR SETTLEMENTS
ORDER OF DISAPPROVAL AND ORDER TO SUBMIT
INFORMATION FOR SIXTEEN SETTLEMENTS
Before:

Judge Merlin

This case is a petition for the imposition of civil
penalties for 20 violations originally assessed at $20 each
for a total of $400. The proposed settlements are for the
original amounts. As set forth herein, I approve four of the
recommended settlements based upon information contained in
the citations, but I am unable to approve the remaining 16
because the present record contains insufficient information.
Citation No. 3059412
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12008, because the feed cable
for the portable reducing transformer located on the burner
floor did not enter the metal frame through proper bushings
and/or fittings. The Solicitor asserts:
"The probability of
the occurrence of an event against which the cited standard is
directed was unlikely. The gravity of projected injury in the
event of an accident could be fatal. The operator exhibited
moderate negligence in allowing this violation to exist."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations. Also, under such circumstances
where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me
the projected injury is fatal.

1375

Citat~on

No. 3059413

According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12025, because the grounding
jumper around the flexible conduit on.the motor of the No. 5
separator in the finishing mill was not connected to the frame
of the motor. The Solicitor asserts:
"The probability of the
occurrence of an event against which the cited standard is
directed was unlikely. The gravity of projected injury in the
event of an accident could be fatal. The operator exhibited
moderate negligence in allowing this violation to exist."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations. Also, under such circumstances
where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me
the projected injury is fatal.
Citation No. 3059414
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12008, because the 440-volt feed
cable for the portable welder in the car shop did not enter
the metal frame of the welder through. proper fittings and/or
bushings. The Solicitor asserts:
"The probability of the
occurrence of an event against which the cited standard is
directed was unlikely. The gravity of projected injury in the
event of an accident could be fatal. The operator exhibited
moderate negligence in allowing this violation to exist."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations. Also, under such circumstances
where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me
the projected injury is fatal.
Citation No. 3059430
According to the Solicitor, this.citation was issued for
a violation of 30 C.F .• R. § 56.14007, because the guard for the
V-belt motor for the separator above the No. a finish mill was
not of substantial construction in that the back of the guard
was missing. The Solicitor asserts:
"The probability of the
occurrence of an event against which the cited standard is
directed was unlikely. The gravity of projected injury in the
event of an accident could result in permanent disability.

1376

The operator exhibited moderate negligence in allowing this
violation to exist."
The Solicitor gives no reasons for any of the foregoing
conclusions, but the citation states the drive was not in operation. On this basis, I find the violation was non-serious
and approve the $20 settlement.
Citation No. 3059431
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.14006, because the guard was not
in place for the coupling between the motor and gear drive on
the main feed belt for the No. 8 belt feed located in the
finish mill. The Solicitor asserts:
"The probability of the
occurrence of an event against which the cited standard is
directed was unlikely. The gravity of projected injury in the
event of an accident could result in permanent disability.
The operator exhibited moderate negligence in allowing this
violation to exist."
The Solicitor gives no reasons for any of the foregoing
conclusions, but the citation states the belt was not in operation. On this basis, I find the violation was non-serious
and approve the $20 settlement.
Citation No. 3059432
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.14006, because the guard was not
i~ place for the coupling between the motor and chain drive
for the gyp belt feeder for the No. 7 mill. The Solicitor
asserts:
"The probability of the occurrence of an event
against which the cited standard is directed was unlikely.
The gravity of projected injury in the event of an accident
could result in permanent disability. The operator exhibited
moderate negligence for allowing this violation to exist."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations. Also, under such circumstances
where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me
the projected injury is permanent disability.
Citation No. 3059434
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.14006, because the guard for the

1377

tail pulley on the main gyp and clinker feet belt conveyor was
not in place. The Solicitor asserts: "The probability of the
occurrence of an event against which the cited standard is
directed was unlikely. The gravity of projected injury in the
event of an accident could result in permanent disability.
The operator exhibited moderate negligence in allowing this
violation to exist."
The Solicitor gives no reasons for any of the foregoing
conclusions, but the citation states the belt was not in
motion. On this basis, I find the violation was non-serious
and approve the $20 settlement.
Citation No. 3059435
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.14006, because the guard for the
sawblade for the electrical saw located in the car shop was
not in place. The Solicitor asserts that "The probability of
the occurrence of an event against which the cited standard is
directed was unlikely. The gravity of projected injury in the
event of an accident could result in permanent disability.
The operator exhibited moderate negligence in allowing this
violation to exist."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations. Although the citation recites
that the saw was not being used, it further states that the
motor was energized. More intormation is needed for me to
make a determination on gravity. Also, under such circumstances where likelihood is not explained, I have particular
difficulty in approving a $20 penalty wnen the Solicitor tells
me the projected injury is permanent disability.
Citation No. 3059418
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12020, because the breaker and
control box for the pump at the settling pond was not provided
with a dry wooden platform or insulatien mat. The Solicitor
asserts:
"The probability of the occurrence of an event
against which the cited standard is directed was unlikely.
The gravity of projected injury in the event of an accident
could be fatal. The operator exhibited moderate negligence in
allowing this violation to exist."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, espe~
cially likelihood of occurrence. Therefore, I have no basis

1378

to accept his representations. Also, under such circumstances
where likelihood is not explained, I have particular difficulty in approving a $20 penalty when the Solicitor tells me
the projected injury is fatal.
Citation No. 3059436
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.11001, because safe means of.
access was not provided for the operator of the haul truck
being used to transport dust in that the ladder used to climb
in and out of the truck was not substantially constructed so
as to provided safe access. The Solicitor asserts: "The probability of the occurrence of an event against which the cited
standard is directed was unlikely. The gravity of projected
injury in the event of an accident could result in permanent
disability. The operator exhibited moderate negligence in
allowing this violation to exist."
Using the same language each time,_ the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations. Also, under such circumstances
where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me
the projected injury is permanent disability.
Citation No. 3059439
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.14006, because a guard was not
provided for the chain drive on the dribble belt conveyor.
The Solicitor asserts: "The probability of the occurrence of
an event against which the cited standard is directed was
unlikely. The gravity of projected injury in the event of an
accident could result in lost workdays or restcicted duty.
The operator exhibited moderate negligence in allowing this
violation to exist."
The Solicitor gives no reason for any of the foregoing
conclusions, but the citation state that the 0elt was not in
motion. On this basis, I find the violation was non-serious
and approve the $20 settlement.
Citation No. 3059441
According to the Solicitoc, this citation was issued for
a violation of 30 C.F.R. ,§ 56.12020, because a wooden platform
or insulation mat was not provided for the controls at the

1379

3 inch water pump. The Solicitor asserts:
"The probability
of the occurrence of an event against which the cited standard
is directed was unlikely. The gravity of projected injury in
the event of an accident could be fatal.· The operator
exhibited moderate negligence in allowing this violation to
exist."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations. Also, under such circumstances
where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me
the projected injury is fatal.
Citation No.

305~442

According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12025, because the grounding
conductor was not connected to the frame of the portable light
located in the underground shop. The Solicitor asserts:
"The
probability of the occurrence of an event against which the
cited standard is directed was unlikely. The gravity of
projected injury in the event of an accident could be fatal.
The operator exhibited moderate negligence in allowing this
violation to exist."
using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations. Also, under such circumstances
where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me
the projected injury is fatal.
Citation No. 3059445
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12020, because a dry wooden
platform or insulation mat was not provided for the controls
on the #3250 portable water pump. The Solicitor asserts:
"The probability of the occurrence of an event against which
the cited standard is directed was unlikely. The gravity of
projected injury in the event of an accident could be fatal.
The operator exhibited modarate negligence in allowing this
violation to exist."
using the same language each time~ the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis

1380

to accept his representations. Also, under such circumstances
where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me
the projected injury is fatal.
Citation No. 3059446
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12020, because a wooden platform
or insulation mat was not provided for the controls at the
high pressure wash bay located at the underground wash station.
The Solicitor asserts:
"The probability of the occurrence of
an event against which the cited standard is directed was
unlikely. The gravity of projected injury in the event of an
accident could be fatal. The operator exhibited moderate
negligence in allowing this violation to exist."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations. Also, under such circumstances
where likelihood is not explained, I have particular difficulty in approving a $20 penalty when the Solicitor tells me
the projected injury is fatal.
Citation No. 3059448
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12030, because the 440-volt feed
cable to the main exhaust fan located at the underground
crusher station was damaged and had a conductor showing
through. The Solicitor asserts:
"The probability of the
occurrence of an event against which the cited standard is
directed was unlikely. The gravity of projected injury in the
event of an accident could be fatal.
The operator exhibited
moderate negligence in allowing this violation to exist."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations. Also, under such circumstances
where likelihood is not explained, I have particular diff icul ty in approving a $20 penalty when the Solicitor tells me
the projected injury is fatal.
Citation No. 3059450
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12025, because the conduit used
as a grounding conductor for the 110-volt light in the walkway

1381

of the underground bin conveyor was broken. The Solicitor
asserts: ... The probability of the occurrence of an event
against which the cited standard is directed was unlikely.
The gravity of projected injury in the event of an accident
could be fatal. The operator exhibited moderate negligence in
allowing this violation to exist."
using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations. Also, under such circumstances
where likelihood is not explained, I -have particular difficulty in approving a $20 penalty when the Solicit6r tells me
the projected injury is fatal.
Citation No. 3059452
According to the Solicitor, this=citation was issued for
a violation of 30 C.F.R. § 56.12025, because the conduit used
for a grounding conductor for the 110-volt outlet at the top
landing for the underground rnan lift was broken. The
Solicitor asserts:
"The probability of the occurrence of an
event against which the cited standard is directed was
unlikely. The gravity of projected injury in the event of an
accident could be fatal. The operator exhibited moderate
negligence in allowing this violation to exist."
'
using the same language each time, the Solicitor
gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations. Also, under such circumstances
where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor teils me
the projected injury is fatal.

Citation No. 3059453
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12032, because the cover plate
for the junction box located near the walkway for the 4A belt
was missing, thereby exposing the conductor to damage. The
Solicitor asserts:
"The probability o~ the occurrenc~ of an
event against which the cited standard is directed was
unlikely. The gravity of projected injury in the event of an
accident could be fatal. The operator exhibited moderate
negligence in allowing this violation to exist."
using the same language each time, the Solicitor gives no
facts or rationale to support any of the_se conclusions, especially likelihood of occurrence. Therefore, I have no basis

1382

to accept his representations. Also, under such circumstances
where likelihood is not explained, I have particular difficulty in approving a $20 penalty when the Solicitor tells me
the projected injury is fatal.
Citation No. 3059454
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12025, because the conduit used
as a grounding conductor was broken on the 4A underground belt
conveyor. The Solicitor asserts: "The probability of the
occurrence .of an event against which the cited standard is
directed was unlikely. The gravity of projected injury in the
event of an accident could be fatal. The operator exhibited
moderate negligence in allowing this violation to exist."
Using the same language each time, the Solicitor gives no
facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis
to accept his representations. Also, under such circumstances
where likelihood is not explained, I have particular difficulty in approving a $20 penalty when the Solicitor tells me
the projected injury is fatal.
Discussion of Settlement Disapprovals
The conclusions which the Solicitor uses each time regarding probability of occurrence are, of course, intended to
satisfy the Secretary of Labor's regulation for single penalty
assessments (30 C.F.R. § 100.4). In effect, a single penalty
assessment of $20 is available under this rule, if the violation is not "significant and aubstantial," as that term of art
has been interpreted by the Commission in contest cases under
section 104(d) of the Act. 30 U.S.C. § 814(d). Due to the
absence of any data or reasoning to support his bare assertions, it appears that the Solicitor in this case has not even
satisfied the Secretary's requirements for imposition of a $20
penalty.
However, the issue in this case is not whether the
Secretary of Labor's regulations are met. It is well established that penalty proceedings before the Commission are
de novo. Neither the Commission nor its Judges are bound by
the Secretary's regulations or proposed penalties. Rather,
they must determine the appropriate amount of penalty, if any,
in accordance with the six criteria set forth in section
llO(i) of the Act. 30 U.S.C. § 820(i). Sellersburg Stone
Company v. Federal Mine Safety and Health Review Commission,
736 F.2d 1147 (7th Cir. 1984). Wilmot Mining Company,
9 FMSHRC 686 (April 1987). U.S. Steel, 6 FMSHRC 1148 (May
19 84) •

1383

The Commission and its Judges bear a heavy responsibility
in settlem~nt cases pursuant to section llOCk) of the Act,
30 u.s.c. § 820Ck), which provides:
Ck) No proposed penalty which has been
contested before the Commission under section
105(a) shall be compromised, mitigated, or
settled except with the approval of the
Commission. * * *
The legislative history makes clear Congress' intent in
this respect: Sees. Rep. No. 95-181, 95th Cong., 1st Sess.,
44-45 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Heal~h Act
of 1977, at 632-633 (1978).
In order to support his settlement recommendations, the
Solicitor must present the Commission Judge witn information
sufficient to satisfy the six statutory criteria in section
llOCi) with respect to the instant citations. I accept the
Solicitor's statistics regarding history and in absence of any
evidence to the contrary, I accept his representations regarding good faith abatement and ability to continue in business.
However, the Solicitor's representation of the operator
as small in size cannot be accepted on the present record.
The Proposed Assessment sheet gives the company's annual hours
worked as 1,088,152 and the miner's annual hours worked as
417,735. The Solicitor should explain why he believes the
operator is small.
No information is given to support the Solicitor's representation that in all these citations, the operator was guilty
of moderate negligence. The Solicitor has merely relied upon
the box checked by the inspector on the citation. Accordingly,
on the critical statutory criterion of negligence, I have no
basis to make the necessary determination for sixteen of the
citations, as set forth above.
So too, in these sixteen citations no information is
given for me to make findings on gravity. As already noted,
the Solicitor's unsupported representations relate to "significant and substantial·" not "gravity." The Commission has
pointed out that although the penalty criterion of "gravity"
and the "significant and substantial" nature of ~violation
are not identical, they are based frequently upon the same or
similar factual considerations. Quinla:nd Coals, Inc.,
9 FMSHRC 1614, 1622 n. 11 (September 1987). Youghiogheny and

1384

Ohio Coal Company, 9 FMSHRC 2007, 2013 (December 1987). Here
no·factual considerations have been given upon which I can
decide gravity. A violation conceivably could possess some
degree of gravity, but still not rise to the level of significant and substantial. As a general matter, $20 would appear
to be a nominal penalty appropriate for a non-serious violation, in absence of other unusual circumstances. But here
again, the Solicitor has merely relied upon the box checked by
the inspector on the citation. Accordingly, for the crucial
statutory criterion of gravity, I have no basis to make the
necessary determinations.
In light of the foregoing, the recommended settlements
for 16 citations cannot be accepted on the present record.
ORDER
Accordingly, it is Ordered that the recommended settlements of $20 be Approved for the following four citations:
Citation No.
Citation No.
Citation No.
Citation No.

3059430
3059431
3059434
3059439

It is further Ordered the operator pay $80 for these four
citations within 30 days from the date of this decision.
It is further Ordered that the recommended settlements be
Disapproved and that within 30 days from the date of this
order, the Solicitor submit sufficient information for me to
make proper settlement determinations under the Act with
respect to the following 16 citations:
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

3059412
3059413
3059414
3059432
3059435
3059418
3059436
3059441
3059442
3059445
3059446
3059448
3059450

1385

Citation No. 3059452
· Citation •o. 3059453
Citation No. 3059454

\·~
Paul Merlin
Chief Administrative Law Judge
Distribution:
Christopher J. Carney, Esq., Office of the Solicitor, U.S.
Department of Labor, 881 Federal Office Building, 1240 East
Ninth Street, Cleveland, OH 44199 (Certified Mail)
Michael M. Roman, Vice President, Industrial Relations,
Columbia Portland Cement Company, P.O. Box 1531, Zanesville,
OH 43701 (Certified Mail>

/fb

1386

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

September 7, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
COLUMBIA PORTLAND CEMENT
COMPANY,
Respondent

.
..
.
.
..:
.
.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 88-58-M
A.C. No. 33-03990-05524
Jonathan Limestone Mine

DECISION DISAPPROVING SETTLEMENTS
ORDER TO SUBMIT INFORMATION
This case is a petition for the imposition of civil
penalties for twenty citations originally assessed at $2603.
Recommending very substantial reductions for all the violations,
the Solicitor's proposed settlements total $1463.80. As set
forth herein, I am unable to approve the suggested settlements
based upon the present record.
Citation No. 3059195
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12030, because the door on the signal
light located at the water pump across from the bag house would
not close, thus exposing energized parts. The citation further
recites that employees walk and travel in the affected area. The
original assessment for this citation was $157 and the proposed
settlement is $88.30. The Solicitor asserts:
"The probability
of the occurrence of an event against which the cited standard is
directed was reasonably likely. The gravity of projected injury
had an accident occurred could be fatal. The operator
was moderately negligent in allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $88.30. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be a fatality and that the operator was negligent?
Under such circumstances the original assessment looks modest
indeed.

1387

Citation No. 3059197
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12030, ·because the outlet located on
the bottom of the 110-volt breaker box in the bag house was
broken off and hanging by the conductors. The original
assessment for this citation was $157 and the proposed settlement
is for $88.30. The Solicitor asserts: "The probability of the
occurrence of an event against which the cited standard is
directed was reasonably likely. The gravity of p~ojected injury
had an accident occurred could be fatal. The operator was
moderately negligent in allowing this violation to exist."
The Solicitor offers nothing to support his propo~ed
settlement of $88.30. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be a fatality and that the operator was negligent?
Under such circumstances the original assessment looks modest
indeed.
·
·
Citation No. 3059199
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12034, because the 110-volt light
bulb located 3 feet from the drill press in the machine shop was
not guarded. The original assessment for this citation was $98
and the proposed settlement is for $55.10. The Solicitor
asserts:
"The probability of the occurrence of an event against
which the cited standard is directed was reasonably likely. The
gravity of projected injury had an accident occurred could result
in lost workdays or restricted duty. The operator was moderately
negligent in allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $55.10. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be lost workdays or restricted duty and that the
operator was negligent? Under such circumstances the original
assessment looks modest indeed.
Citation No. 3059382
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12030, because the 110-volt light
bulb located 3 feet above the drill bit and bolt bins and near
the big shears was broken. The citation further recites that
employees work in the affected area. ~he original assessment for
this citation was $98 and the proposed settlement is for $55.10.

1388

The Solicitor asserts: "The probability of the occurrence of an
event against which the cited standard is directed was reasonably
likely. The gravity of projected injury had an accident occurred
could result in lost workdays or restricted duty. The operator
was moderately negligent in allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement. of $55.10. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be lost workdays or restricted duty and that the
operator was negligent? Under such circumstances the original
assessment looks modest indeed.
Citation No. 3059383
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12030, because the bulb was missing
from the light fixture located on the I-beam near the small drill
press and approximately 4 feet above the floor. The citation
further recites that employees were exposed to 110-volt energized
parts. The original assessment for this citation was $98 and
the proposed settlement is for $55.10. The Solicitor asserts:
"The probability of the occurrence of an event against which the
cited standard is directed was reasonably likely. The gravity of
projected injury had an accident occurred could result in lost
workdays or restricted duty. The operator was moderately
negligent in allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $55.10. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be lost workdays or restricted duty and that the
operator was negligent? Under such circumstances the original
assessment looks modest indeed.
Citation No. 3059421
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.11002, because an 8 foot section of
handrail for the walkway at the top of the steps in the
compressor room was not in place. Employees were exposed to
falls of 8 feet. The original assessment for this citation was
$126 and the proposed settlement is for $70.85. The Solicitor
asserts: "The probability of the occurrence of an event against
which the cited standard is directed was reasonably likely. The
gravity of projected injury in the event of an accident could
resulc in permanent disability. The operator exhibited moderate
negligence for allowing this violation to exist."

1389

The Solicitor offers nothing to support his proposed
settlement of $70.85. How can I approve such a small penalty
amount when the Solicitor himself telLs me it is reasonably
likely the cited condition will occur and that if it does, the
result will be permanent disability and that the operator was
negligent? Under such circumstances the original assessment
looks modest indeed.
Citation No. 3059395
According·to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12030, be~ause two light bulbs were
missing in the walkway of the east tunnel of the packhouse. The
light bulbs were approximately six feet above the walkway. The
citation further recites that employees were exposed to the
110- volt energized equipment because they had to work in this
area. The original assessment for this citation was $98 and the
proposed settlement is $55.10. The Solicitor asserts:
"The
probability of the occurrence of an event against which the cited
standard is directed was reasonably likely. The gravity of
projected injury had an accident occurred could be lost workdays
or restricted duty. The operator was moderately negligent in
allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $55.10. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be lost workdays or restricted duty and that the
operator was negligent? Under such circumstances the original
assessment looks modest indeed.
Citation No. 3059396
According to the Solicitor, this -citation was issued for a
violation of 30 C.F.R. § 56.12023, because grids and energized
parts were not guarded on the controls for the elevator for the
store rooms. The citation further recites that the voltage was
440. The original assessment for this citation was $157 and the
proposed settlement is $88.30. The Solicitor asserts:
"The
probability of the occurrence of an event against which the cited
standard is directed was reasonably likely. The gravity of
projected injury in the event of an accident could be fatal. The
operator exhibited moderate negligence for allowing this
violation to exist."
The Solicitor offers nothing to ~~pport his proposed
settlement of $88.30. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably

1390

likely the cited condition will occur and that if it does, the
result will be a fatality and that the operator was negligent?
Under such circumstances the original assessment looks modest
indeed.
Citation No. 3059399
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12030, because the thermostat box
located in the precipitator control room was broken off the
hanger and the.cover was missing. The original assessment for
this citation was $98 and the proposed settlement is for $55.10.
The Solicitor asserts:
"The probability of the occurrence of an
event against which the cited standard is directed was reasonably
likely. The gravity of projected injury had an accident occurred
could result in lost workdays or restricted duty. The operator
exhibited moderate negligence for allowing this violation to
exist."
The Solicitor offers nothing to support his proposed
settlement of $55.10. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be lost workdays or restricted duty and that the
operator was negligent? Under such circumstances the original
assessment looks modest indeed.
Citation No. 3059425
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.11001, because safe means of access
was not provided or maintained from the east to west sides of the
third floor of the feedhouse in that employees were walking an
8 inch beam to get from one side to the other. The citation
further recites that if people fell while using this beam, they
could fall 10 feet. The original assessment for this citation
was $126 and the proposed settlement is for $70.85. The
Solicitor asserts:
"The probability of the occurrence of an
event against which the cited standard is directed was reasonably
likely. The gravity of projected injury had an accident occurred
could be permanently disabling. The operator exhibited moderate
negligence for allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $70.85. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be permanent disability and that the operator was
negligent? Under such circumstances the original assessment
looks modest indeed.

1391

Citation No. 3059427
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. ~ 56.9002, because the Pettibone Crane,
equipment #29, operating in the coal mill area had a hydraulic
oil leak. The citation recites that the oil was leaking off the
boom, running down onto the hot exhaust and motor, creating a
fire hazard. The original assessment for this citation was $157
and the proposed settlement is for $88.30. The Solicitor
asserts:
"The probability of the occurrence of an event against
which the cited standard is directed was reasonably likely. The
gravity of projected injury had an accident occurred could result
in lost workdays or restricted duty. The operator exhibited
moderate negligence for allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $88.30. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be lost workdays or restricted duty and that the
operator was negligent? Under such circumstances the original
assessment looks modest indeed.
Citation No. 3059405
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12030, because the junction box on
the brake relay of the man lift located on the top floor of the
finish mill was damaged. The original assessment for this
citation was $157 and the proposed settlement is for $88.30. The
Solicitor asserts:
"The probability of the occurrence of an
event against which the cited standard is directed was reasonably
likely. The gravity of projected injury had an accident occurred
could be fatal. The operator exhibited moderate negligence for
allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $88.30. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be a fatality and that the- operator was negligent?
Under such circumstances the original assessment looks modest
indeed.
\
\

Citation No. 3059406
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12023, because the 440-volt
electrical connection on the second floor of the crane was not

1392

guarded. The citation further recites that employees could make
contact with the connection. The original assessment for this
citation was $157 and the proposed settlement is for $88.30. The
Solicitor asserts:
"The probability of the occurrence of an
event against which the cited standard is directed was reasonably
likely. The gravity of projected injury had an accident occurred
could be fatal. The operator exhibited moderate negligence for
allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $88.30. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be a fatality and that the operator was negligent?
Under such circumstances the original assessment looks modest
indeed.
Citation No. 3059407
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12023, because the 440-volts grids on
the third floor of the crane were not guarded. The citation
further recites that employees could make contact with the grids.
The original assessment for this citation was $157 and the
proposed settlement is for $88.30. The Solicitor asserts:
"The
probability of the occurrence of an event against which the cited
standard is directed was reasonably likely. The gravity of
projected injury had an accident occurred could be fatal. The
operator exhibited moderate negligence for allowing this
violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $88.30. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be a fatality and that the operator was negligent?
Under such circumstances the original assessment looks modest
indeed.
Citation No. 3059408
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12034, because the light bulb on the
north side of the crane and approximately three feet above the
floor was not guarded. The original assessment for this citation
was $98 and the proposed settlement is for $55.10. The Solicitor
asserts:
"The probability of the occurrence of an event against
which the cited standard is directed was reasonably likely. The
gravity of projected injury had an accident occurred could result

1393

in lost workdays or restricted duty. The operator exhibited
moderate negligence for allowing this violation to exist."
The Solicitor offers nothing t~ support his proposed
settlement of $55.10. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be lost workdays or restricted duty and that the
operator was negligent? Under such circumstances the original
assessment looks modest indeed.
Citation No. 3059409
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12030, because the breaker handle for
the motor of the separator in the No. 7 finish mill had been
removed and could not be locked out. The original assessment for
this citation is $157 and the proposed settlement is for $88.30.
The Solicitor asserts:
"The probability of the occurrence of an
event against which the cited standard is directed was reasonably
likely. The gravity of projected injury had an accident occurred
could be fatal. The operator exhibited moderate negligence for
allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $88.30. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be a fatality and that the operator was negligent?
Under such circumstances the original assessment looks modest
indeed.
Citation No. 3059410
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12030, because the back panels for
the No. 25808 control panel in the burner control room were
missing, exposing employees to 110-volt connections. The
original assessment for this citation was $157 and the proposed
settlement is for $88.30. The Solicitor asserts:
"The
probability of the occurrence of an event against which the cited
standard is directed was reasonably likely. The gravity of
projected injury had an accident occurred could be fatal. The
operator exhibited moderate negligence f.or allowing this
violation to exist."
·
The Solicitor offers nothing to support his proposed
settlement of $88.30. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur antl that if it does, the

1394

result will be a fatality and that the operator was negligent?
Under· such. circumstances the original assessment looks modest
indeed.
Citation No. 3059428
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.11001, because safe access was not
provided for the walkway on the fourth floor of the finish mill
building in that a coal spill was blocking the walkway. The
citation further recites that employees had to travel the walkway
and that the spill was about 6 feet by 8 feet and 5 feet high.
The original assessment for the citation was $98 and the proposed
settlement is for $55.10. The Solicitor asserts:
"The
probability of the occurrence of an event against which the cited
standard is directed was reasonably likely. The gravity of
projected injury had an accident occurred could result in lost
workdays or restricted duty. The operator exhibited moderate
negligence for allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $55.10. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be lost workdays or restricted duty and that the
operator was negligent? Under such circumstances the original
assessment looks modest indeed.
Citation No. 3059433
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.14006, because the guard for the
tailpulley on the main gyp and clinker feed belt conveyor in the
No. 7 finish mill was not in place. The citation further recites
that the belt was in motion, and that one person per day travels
the walkway adjacent to the belt. The original assessment for
this citation was $126 and the proposed settlement is for $70.85.
The Solicitor asserts:
"The probability of the occurrence of an
event against which the cited standard is directed was reasonably
likely. The gravity of projected injury had an accident occurred
could be permanent disability. The operator exhibited moderate
negligence for allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $70.85. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be permanent disability and that the operator was
negligent? Under such circ~~stances the original assessment
looks modest indeed.

1395

Citation No. 3059437
According to the Solicitor, this citation was for a
violation of 30 C.F.R. § 56.9003, because the primary brakes for
the Caterpillar 992 front end loader, equipment No. 2314, were
not adequate in that the loader could not stop within a safe
distance when tested. The citation further recites that the
right rear wheel cylinder had a very heavy leak with fluid
running down onto the wheel and tire, and that the loader was
being used to load trucks in the quarry. The original assessment
for this violation was $126 and the proposed settlement is for
$70.85. The Solicitor asserts:
"The probability 9f the
occurrence of an event against which the cited standard is
directed was reasonably likely. The gravity of projected injury
had an accident occurred could be permanent disability. The
operator was moderately negligent in allowing this violation to
exist."
The Solicitor offers nothing to support his proposed
settlement of $70.85. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does, the
result will be permanent disability and that the operator was
negligent? Under such circumstances the original assessment
looks modest indeed.
Discussion of Settlement Disapprovals
It is well established that penalty proceedings before the
Commission are de nova. Neither the Commission nor its Judges
are bound by the-secretary's regulations or proposed penalties.
Rather, they must determine the appropriate amount of penalty, if
any, in accordance with the six criteria set forth in section
llO<i> of the Act. 30 u.s.c. § 820(i). Sellersburg Stone
Company v. Federal Mine Safety and Health Review Commission, 736
F.2d 1147 (7th Cir. 1984). Wilmot Mining Company, 9 FMSHRC 686
(April 1987). U.S. Steel, 6 FMSHRC 1148 (May 1984).
The Commission and its Judges bear a heavy responsibility in
settlement cases pursuant to section llO(k) of the Act, 30 u.s.c.
§ 820Ck>, which provides:
Ck> No proposed penalty which has been contested before
the Commission under section 105(a) shall be
compromised, mitigated, or settled except which the
approval of the commission. * * *
The legislative history makes clear Congress' intent in this
respect: Sees. Rep. No. 95-181, 95th Cong., 1st Sess.,

1396

44-45 (1977), reprinted in Senate Subcommittee on Labor,
·committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health
Act of 1977, at 632-633 (1978).
In order to support his settlement recommendations, the
Solicitor must present the Commission Judge with information
sufficient to satisfy the six statutory criteria in section
llO(i) with respect to the instant citations. I accept the
Solicitor's statistics regarding history and in absence of any
evidence to cqntrary, I accept his representations regarding good
faith abatement and ability to continue in business.
However, the representation of the operator as small in size
cannot be accepted on the present record. The Proposed
Assessment sheet gives the company's annual hours worked as
1,088,152 and the mine's annual hours worked as 417,735. MSHA
assigned the mine 7 points and the entity 3 points which is not
small. Cf. 30 C.F.R. § 100.4. The Solicitor should expl~in why
he believes the operator is small.
No information is given to support the Solicitor's
representation that the operator was guilty of moderate
negligence in these citations. The Solicitor merely relies upon
the box checked by the inspector on the citations. Accordingly,
on the critical statutory criterion of negligence, I have no
basis to make the necessary determinations.
As already set forth, the representations given by the
Solicitor with respect to the gravity of each violation do not
appear to support the low recommended settlement amounts. The
Solicitor's conclusions relate to "significant and substantial",
as that term of art has been interpreted by the Commission in
contest cases under section 104Cd) of the act. 30 u.s.c.
§ 814(d).
The Commission has pointed out that although the
penalty criterion of "gravity" and the "significant and
substantial" nature of a violation are not identical, they are
based frequently upon the same or similar factual considerations.
Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n. 11 (September 1987).
Youghiogheny and Ohio Coal Company, 9 FMSHRC 2007, 2013 (December
1987). The Solicitor does not discuss the factual considerations
for any of the subject citations. But the conclusions he offers
do indicate a high degree of gravity which, at least on the
present record, is at variance with his insubstantial penalty
suggestions. And, as noted above, in some instances the
citations contain additional facts, not included in the
settlement motion, which apparently add to gravity.
I am of
course, not bound by the original assessments. However, it must
be noted tha~ the Solicitor has cut the original assessments
almost in half without explanation.

1397

In light of the foregoing, the recommended settlements
cannot be accepted on the ptesent record.
ORDER
It is Ordered that the recommended settlements be
Disapproved and that within 30 days from the date of this order,
the Solicitor submit sufficient information for me to make proper
settlement determinations under the Act.

---= \" ~ ~.

-------·---;\:--~
Paul Merlin
Chief Administrative Law Judge

Distribution:
Christopher J. Carney, Esq., U.S. Department of Labor, Office of
the Solicitor, 881 Federal Office Building, 1240 East Ninth
Street, Cleveland, OH 44199 (Certified Mail)
Michael M. Roman, Vice President, Industrial Relations, Columbia
Portland Cement Company, P.O. Box 1531, Zanesville, OH 43701
(Certified Mail)
slk

1398

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

September 7, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

v.
COLUMBIA PORTLAND CEMENT
COMPANY,
Respondent

.
.
.
.
.
.
.

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 88-59-M
A.C. No. 33-03990-05525
Jonathan Limestone Mine

DECISION DISAPPROVING SETTLEMENTS
ORDER TO SUBMIT INFORMATION
This case is a petition for the imposition of civil
penalties for six citations originally assessed at $831.00.
Recommending very substantial reductions for all the
violations, the Solicitor's proposed settlements total
$467.50. As set forth herein, I am unable to approve the
suggested settlements based upon the present record.
Citation No. 3059438
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.3200, because loose material
was observed along the highwall in the quarry for a distance
of 200 feet thereby creating a fall of material hazard to
employees working in the area. The original assessment for
this citation was $136 and the proposed settlement is $76.50.
The Solicitor asserts: "The probability of the occurrence of
an event against which the cited standard is directed was
reasonably likely. The gravity of projected injury had an
accident occurred could be permanent disability. The
operator was moderately negligent in allowing this violation
to exist."
The Solicitor offers nothing to support his proposed
settlement of $76.50. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does,
the result will be permanent disability and that the operator
was negligent? Under such circumstances the original
assessment looks modest indeed.

1399

Citation No. 3059440
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.11001, because safe means of
access was not provided for those persons who wor~ed with the
pump located in front of the mine portal in that access to
the area had been cut off. The ~itation further recites that
if employees fell, they would fall into about five feet of
water. The original assessment for this citation was $98 and
the proposed settlement is $55.10. The Solicitor asserts:
"The probability of occurrence of an event against which the
cited standard is directed was reasonably likely. The
gravity of projected injury had an accident occurred could be
lost workdays or restricted duty. The operator exhibited
moderate negligence for allowing the violation to exist."
The Solicitor 6ffers nothing to support his proposed
settlement of $55.10. aow can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does,
the result will be lost workdays or restricted duty and that
the operator was negligent? Under such circumstances the
original assessment looks modest indeed.
Citation No. 3059443
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12032, because the cover for
the junction box of the hydraulic press was missing. The
original assessment for this citation was $157 and the
proposed settlement is $88.30. The Solicitor asserts: "The
probability of the occurrence of an event against which the
cited standard is directed was reasonably likely. The
gravity of projected injury had an accident· occurred could be
fatal. The operator exhibited moderate negligence for
allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $88.30. How can I approve such a small penalty
amount when the Solicitor himself tell·s me it is reasonably
likely the cited condition will occur ~nd that if it does,
the result will be a fatality and that.the operator was
negligent? Under such circumstances tbe original assessment
looks modest indeed.
Citation No.

30594-~7

According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12032, because the cover plate

1400

for the 110-volt light switch at the entrance to the
underground crusher station was missing. The citation
further recites employees were exposed to 110 volt energized
parts. The original assessment was $157 and the proposed
settlement is $88.30. The Solicitor asserts: "The
probability of the occurrence of an event against which the
cited standard is directed was reasonably likely. The
gravity of projected injury had an accident occurred could be
fatal. The operator exhibited moderate negligence for
allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $88.30. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does,
the result will be a fatality and that the operator was
negligent? Under such circumstances the original assessment
looks modest indeed.
Citation No. 3059451
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12030, because two light bulbs
at the top of the man lift were missing, thereby exposing
employees to energized parts. The original assessment for
this citation was $157 and the proposed settlement is $88.30.
The Solicitor asserts:
"The probability of the occurrence of
an event against which the cited standard is directed was
reasonably likely. The gravity of projected injury had an
accident occurred could be fatal. The operator exhibited
moderate negligence for allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $88.30. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does,
the result will be a fatality and that the operator was
negligent? Under such circumstances the original assessment
looks modest indeed.
Citation No. 3059461
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.14006, because the guard for
the tailpulley on the #6 belt conveyor wad not in place. The
citation further recites it was reasonably likely employees
would contact the pinch point while travelling. The original
assessment for this citation was $126 and the proposed
settlement is $71. The Solicitor asserts: "The probability

1401

of the occurrence of an event against which the cited
standard is directed was reasonably likely. The gravity of
projected injury had an accident occurred could be permanent
disability. The operator exhibited moderate negligence for
allowirig this violation to exist."
The solicitor offers nothing to support his proposed
settlement of $71.00. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does,
the result will be permanent disability and that the operator
was negligent? Under such circumstances the original
assessment looks modest indeed.
Discussion of Settlement Disapprovals
It is well established that penalty proceedings before
the Commission are de novo. Neither the Commission nor its
Judges are bound bythe Secretary's regulations or proposed
penalties. Rather, they must determine the appropriate
amount of penalty, if any, in accordance with the six
criteria set forth in section llOCi> of the act.
30 u.s.c.
§ 820Ci).
Sellersburg Stone Company v. Federal Mine Safety
and Health Review Commission, 736 F.2d 1147 (7th Cir. 1984).
Wilmot Mining Company, 9 FMSHRC 686 (April 1987). U.S. Steel,
6 FMSHRC 1148 (May 1984).
The Commission and its Judges bear a heavy
responsibility in settlement cases pursuant to section llOCk)
of the Act, 30 u.s.c. § 820Ck), which provides:
Ck> No proposed penalty which has been contested
before the Commission under section 105Ca) shall be
compromised, mitigated, or settled except which the
approval of the commission. * * *
The legislative history makes clear Congress' intent in
this respect: Sees. Rep. No. 95-181, 95th Cong., 1st Sess.,
44-45 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act
of 1977, at 632-633 (1978).
In order to support his settlement recommendations, the
Solicitor must present the Commission Judge with information
sufficient to satisfy the six statutory criteria in section
llOCi> with respect to the instant citations. I accept the
Solicitor's statistics regarding history and in absence of

1402

any evidence to contrary, I accept his representations
regarding good faith abatement and ability to continue in
business.
However, the representation of the operator as small in
size cannot be accepted on the present record. The Proposed
Assessment sheet gives the company's annual hours worked as
1,088,152 and the mine's annual hours worked as 417,735.
MSHA assigned the mine 7 points and the entity 3 points which
is not small. Cf. 30 C.F.R. § 100.4. The Solicitor should
explain why he believes the operator is small.
No information is given to support the Solicitor's
representation that the operator was guilty of moderate
negligence in these citations. The Solicitor merely relies
upon the box checked by the inspector on the citations.
Accordingly, on the critical statutory criterion of
negligence, I have no basis to make the necessary
determinations.
As already set forth, the representations given by the
Solicitor with respect to the gravity of each violation do
not appear to support the low recommended settlement amounts.
The Solicitor's conclusions relate to "significant and
substantial", as that term of art has been interpreted by the
Commission in Contest cases under section 104(d) of the Act.
30 u.s.c. 814Cd). The Commission has pointed out that
although the penalty criterion of "gravity" and the
"significant and substantial" nature of a violation are not
identical, they are based frequently upon the same or similar
factual considerations. Quinland Coals, Inc., 9 FMSHRC 1614,
1622 n. 11 (September 1987). Youghiogheny and Ohio Coal
Company, 9 FMSHRC 2007, 2013 (December 1987). The Solicitor
does not discuss the factual considerations for any of the
subject citations. But the conclusions he offers do indicate
a high degree of gravity which, at least on the present
record, is at variance with his insubstantial penalty
suggestions. And, as noted above, in some instances the
citations contain addtional factors not included in the
settlement motion, which apparently add to gravity. I am of
course, not bound by the original assessments. However, it
must be noted that the Solicitor has cut the original
assessments almost in half without explanation.
In light of the foregoing, the recommended settlements
cannot be accepted on the present record.

1403

ORDER
It is Ordered that the recommended settlements be
Disapproved and that within 30 days from the date of this
order, the Solicitor submit sufficient information for me to
make proper settlement determinations under the Act.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Christopher J. Carney, Esq., U.S. Department of Labor, Office
of the Solicitor, 881 Federal Office Building, 1140 East
Ninth Street, Cleveland, OH 44199 (Certified M~il)
Michael M. Roman, Vice President, Industrial Relations,
Columbia Portland Cement Company, P.O. Box 1531, Zanesville,
OH 43701 (Certified Mail)
nt

1404

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

September 7, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

v.
COLUMBIA PORTLAND CEMENT
COMPANY,
Respondent

.
.
..
.

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 88-62-M
A.C. No. 33-03990-05526
Jonathan Limestone Mine

..

ORDER OF APPROVAL AND ORDER TO PAY FOR ONE SETTLEMENT
ORDER OF DISAPPROVAL AND ORDER TO SUBMIT INFORMATION
FOR FOUR SETTLEMENTS
This case is a petition for the imposition of civil
penalties for five violations. Two of the violations were
originally assessed at $20 each and the proposed settlements
are for the original amounts. As set forth herein, I approve
the recommended settlement for one of the $20 penalties, but
am unable to do so for the other.
The remaining three citations were orginally assessed at
$371 and the Solicitor recommends reduced settlements for
them totaling $208.70. Based upon the present record, I
cannot approve these suggested settlements.
Citation No. 3060309
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12030, because a 110-volt light
bulb socket was not provided with a bulb, thus exposing
employees to energized parts. The citation further recites
that one employee was stationed in this area and travelled it
frequently.
This socket was located in the east tunnel. The
original assessment for this citation was $112 and the
proposed settlement is $63. The Solicitor asserts: "The
probability of the occurrence of an event against which the
cited standard is directed was reasonably likely. The
gravity of projected injury had an accident occurred could be
lost workdays or restricted duty. The operator was
moderately negligent in allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $63. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably

1405

likely the cited condition will occur and that if it does,
the result will be lost workdays or restricted duty ang that
the operator was negligent. Under such circumstances the
original assessment looks modest indeed.
Citation No. 3060310
According. to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12016, because an employee was
working on the wilfley pump in mill i46 without d~energizing
the electrical controls. There was no warning notice at the
power switch. The citation further recites that several
employees work in the affected area. The original assessment
for this citation was $147 and the proposed settlement is
$82.70. The Solicitor asserts: "The probability of
occurrence of an event against which the cited standard is
directed was reasonably likely. The gravity of projected
injury had an accident occurred could be permanent disability.
The operator was moderately negligent in allowing the
violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $82.70. How can I approve such a small penalty
amount when the Solicitor himself tells me it is reasonably
likely the cited condition will occur and that if it does,
the result will be permanent disability and that the operator
was negligent. Under such circumstances the original
assessment looks modest indeed.
Citation No. 3060311
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12030, because the control
switch box door on the i47 wilfley pump could not be .closed.
The citation recites that the conductors inside the box were
440 volts and were energized and that several employees work
in that section of the mill. The original assessment for
this citation was $112 and the proposed settlement is $63.
The Solicitor asserts: "The probability of the occu~rence of
an event against which the cited standard is directed was
reasonably likely. The gravity of projected injury had an
accident occurred could be lost of workdays or restricted
duty. The operator exhibited moderate negligence for
allowing this violation to exist."
The Solicitor offers nothing to support his proposed
settlement of $63. How can I approve such a small penalty
amount when the Solicitor himself tell~ me it is reasonably

1406

likely the cited condition will occur arid that if it does,
the result will be a lost workdays or restricted duty and
that the operator was negligent. Under such circumstances
the original assessment looks modest indeed.
Citation No. 3060312
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.12025, because the equipment
grounding conductor for the west screw in the basement of the
packhouse was broken off the drive motor. The original
assessment for this citation was $20 and the proposed
settlement is $20. The Solicitor asserts:
"The probability
of the occurrence of an event against which the cited
standard is directed was unlikely. The gravity of projected
injury had an accident occurred could be fatal. The operator
exhibited moderate negligence for allowing this violation to
exist."
using the pro forma language he employs in all cases of
$20 settlements, the Solicitor gives no facts or rationale to
support any of these conclusions, especially likelihood of
occurrence. Therefore, I have no basis to accept his
representations. Also, under such circumstances where
likelihood is not explained, I have particular difficulty in
approving a $20 penalty when the Solicitor tells me the
projected injury is fatal.
Citation No. 3059478
According to the Solicitor, this citation was issued for
a violation of 30 C.F.R. § 56.16005, because a compressed gas
cylinder located in the underground maintenance shop was not
secured in any manner.
The original assessment for this
citation was $20 and the proposed settlement is $20. The
Solicitor asserts:
"The probability of the occurrence of an
event against which the cited standard is directed was
unlikely. The gravity of projected injury had an accidant
occurred could be lost workdays or restricted duty. The
operator was moderately negligent in allowing this violation
to exist."
The Solicitor gives no reason for any of the foregoing
conclusions, but the citation states that th~ cylindar had a
protective cap in place. On this basis, I find the violation
was non-serious and approve the $20 settlement.

1407

Discussion of Settlement Disapprovals
It is well established that penalty proceedings b~fore
the Commission are de novo. Neither tne Commission nor its
Judges are bound by"-Ehe Secretary's regulations or proposed
penalties. Rather, they must determine the appropriate
amount of penalty, if any, in ac9ordance with the six
criteria set forth in section llOCi> of the Act. 30 u.s.c.
§ 820(i).
Sellersburg Stone Company v. Federal Mine Sa.fety
and Health Review Commission, 736 F.2d<ll47 (7th Cir. 1984).
Wilmot Mining Company, 9 FMSHRC 686 (April 1987). U.S. Steel,
6 FMSHRC 1148 (May 1984).
The Commission and its Judges bear a heavy
responsibility in settlement cases pursuant to section llOCk)
of the Act, 30 u.s.c. § 820Ck>, which provides:
(k) No proposed penalty which has been contested
before the Commission under section 105Ca) shall be
compromised, mitigated, or settled except which the
approval of the commission. * * *
The legislative history makes clear Congress' intent in
this respect: Sees. Rep. No. 95-181, 95th Cong., 1st Sess.,
44-45 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act
of 1977, at 632-633 (1978).
In order to support his settlement recommendations, the
Solicitor must present the Commission Judge with information
sufficient to satisfy the six statutory criteria in section
llOCi> with respect to the instant citations. I accept the
Solicitor's statistics regarding history and in absence of
any evidence to contrary, I accept his representations
regarding good faith abatement and ability to continue in
business.
However, the representation of the operator as small in
size cannot be accepted on the present record. The P~oposed
Assessment sheet gives the company's an~ual hours worked as
1,088,152 and the mine's annual hours worked as 417,735.
MSHA assigned the mine 7 points and the entity 3 points which
is not small. Cf. 30 C.F.R. § 100.4. The Solicitor should
explain why he believes the operator is small.

1408

No information is given to support the Solicitor's
representation that the operator was guilty of moderate
negligence in these citations. The Solicitor merely relies
upon the box checked by the inspector on the citations.
Accordingly, on the critical statutory criterion of
negligence, I have no basis to make the necessary
determinations.
As already set forth, the representations given by the
Solicitor with respect to the gravity of each violation do
not appear to support the low recommended settlement amounts.
The Solicitor's conclusions relate to "significant and
substantial", as that term of art has been interpreted by the
Commission in Contest cases under section 104(d) of the Act.
30 u.s.c. 814Cd). The Commission has pointed out that
although the penalty criterion of "gravity" and the
"significant and substantial" nature of a violation are not
identical, they are based frequently upon the same or similar
factual considerations. Quinland Coals, Inc., 9 FMSHRC 1614,
1622 n. 11 (September 1987). Youghiogheny and Ohio Coal
Company, 9 FMSHRC 2007, 2013 (December 1987). The Solicitor
does not discuss the factual considerations for any of the
subject citations. The conclusions he offers for the three
citations where he recommends penalty reductions indicate a
high degree of gravity which, at least on the present record,
is at variance with his insubstantial penalty suggestions.
And as noted above, in some instances the citations contain
additional factors not included in the settlement motion
which apparently add to gravity. I am of course, not bound
by the original assessments. However, it must be noted that
in these cases the Solicitor has cut the original assessments
almost in half without explanation.
With respect to the recommended settlement of $20, it
must be noted that as a general matter, $20 would appear to
be a nominal penalty appropriate for a non-serious violation,
in absence of other unusal circumstances. The Solicitor has
merely relied upon the boxes checked by the inspector on the
citations. Accordingly, for the crucial statutory criterion
of gravity, I have no basis to make the necessary
determinations.
In light of the foregoing, the recommended settlements
for four of the citations set forth above, cannot be accepted
on the present record.

1409

ORDER
Accordingly, it is Ordered that the recommended
settlement of $20 be Approved for the following citation:
Citation No. 3059478
It is further Ordered the operator pay $20 for this
citation within 30 days from the date of this decision.
It is further Ordered that the recommended settlements
be Disapproved and that within 30 days from the date of this
order, the Solicitor submit sufficient information for me to
make proper settlement determinations under the Act with
respect to the following 4 citations:
Citation No.
Citation No.
Citation No.
Citation No.

3060309
3060310
3060311
3060312

__----r-\~
Paul Merlin
Chief Administrative Law Judge
Distribution:
Christopher J. Carney, Esq., U.S. Department of Labor, Office
of the Solicitor, 881 Federal Office Building, 1240 East
Ninth Street, Cleveland, OH 44199 (Certified Mail)
Michael M. Roman, Vice President, Industrial Relations,
Columbia Portland Cement Company, P.O. Box 1531, Zanesville,
OH 43701 (Certified Mail)
nt

1410