JUNE 1987
COMMISSION DECISIONS
06-30-87
06-30-87

Con-Ag, Inc.
Dillard Smith v. Reco, Inc.

LAKE 87-15-M
VA
86-9-D

Pg.
Pg.

CENT 86-6-M
KENT 87-43-D
WEST 87-21
WEVA 87-26
WEST 85-161-DM
WEST 86-260-M
KENT 86-101
LAKE 86-25-R
WEST 87-40
WEST 85-152-M
WEST 85-154-M
WEST 86-198-DM
PENN 85-312
WEST 87-42-M
YORK 87-1-R
PENN 86-94-R
LAKE 86-127-M
WEST 85-106-DM
PENN 87-102
WEST 86-14-M
PENN 87-107
CENT 86-120-M
KENT 86-8
WEST 86-225
PENN 86-297-R

Pg. 999
Pg. 1007
Pg. 1008
Pg. 1010
. Pg. 1015
Pg. 1046
Pg. 1048
Pg. 1059
Pg. 1069
Pg. 1071
Pg. 1076
Pg. 1078
Pg. 1079
Pg. 1086
Pg. 1088
Pg. 1095
Pg. 1109
Pg. 1112
Pg. 1124
Pg. 1126
Pg. 1134
Pg. 1136
Pg. 1163
Pg. 1164
Pg. 1180

989
992

ADMINISTRATIVE LAW JUDGE DECISIONS
06-01-87 M.M. Sundt Construction Co.
06-02-87 Howard H. Ross v. Richland Coal Co.
06-02-87 Mid-Continent Resources, Inc.
06-02-87 High Power Energy
06-03-87 Joe Arnoldi v. Asarco, Incorporated
06-03-87 Vinnell Mining & Minerals Corp.
06-05-87 Peabody Coal Company
06-05-87 Youghiogheny & Ohio Coal Company
06-08-87 Mid-Continent Resources., Inc.
06-08-87 Vinnell Mining & Minerals Corp.
06-08-87 Bert Bielz, Jr. & Richard McNeely
06-08-87 Henry C. Stairs v; Coeur d'Alene Mines Corp.
06-09-87 Alt, Incorporated
06-10-87 Emko Corporation
06-11-87 Mettiki Coal Corporation
06-12-87 The Helen Mining Company
06-22-87 Sellersburg Stone Company
06-22-87 Daniel S. Alexander v. Freeport Gold Co.
06-22-87 Helen Mining Company
06-22-87 Mohave Concrete & Materials, Inc.
06-23-87 U.S. Steel Mining Co., Inc.
06-25-87 Texas Architectural Aggregates, Inc.
06-29-87 Green River Coal Company, Inc.
06-29-87 Kaiser Coal Corporation of Sunnyside
06-30-87 Florence Mining Company

JUNE 1987
Review was granted in the following cases during the month of June:
Wilfred Bryant v. Dingess Mine Service, Winchester Coals, Inc., etc.,
Docket No. WEVA 85-43-D. (Judge Broderick, May 13, 1987)
Peabody Coal Company v. Secretary of Labor, MSHA, Docket Nos. KENT 86-94-R,
KENT 86-95-R, 87-154. (Judge Fauver, May 20, 1987)
Con-Ag, Inc. v. Secretary of Labor, Docket No. LAKE 87-15-M.
Default Decision of June 1, 1987)

(Judge Merlin,

Review was denied in the following cases during the month of June:
Ronald Tolbert v. Chaney Creek Coal Co., Docket No. KENT 86--123-D.
(Judge Melick, May 12, 1987)
Secretary of Labor, MSHA v. Jim Walter Resources, Inc., Docket Nos. SE 87-38,
etc. (Judge Merlin, May 22, 1987)

COMMISSION DECISIONS

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

June 30, 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. LAKE 87-15-M

CON-AG, INCORPORATED

BEFORE:

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

ORDER
BY THE COMMISSION:
In this civil penalty proceeding ar1s1ng under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982), Commission Chief Administrative Law Judge Paul Merlin pursuant to Commission
Procedural Rule 63, 29 C.F.R. § 2700.63, issued an Order of Default on
June 1, 1987, finding Con-Ag, Inc. ("Con-Ag") in default and assessing a
civil penalty of $550. On June 15, 1987, the Commission received from
Con-Ag a written request for relief from this default. We deem the
request to constitute a timely petition for discretionary review. For
the reasons that follow, we vacate the judge's default order and remand
for further proceedings.
On May 14, 1986, an inspector of the Department of Labor's Mine
Safety and Health Administration ("MSHA") issued to Con-Ag a citation in
connection with an accident at Con-Ag's crushing plant alleging a
violation of 30 C.F.R. § 56.15005 based on a miner's failure to wear a
safety belt and line. On November 28, 19g6, Con-Ag filed a "Blue Card"
request for hearing with respect to the Secretary of Labor's notification of a proposed $550 civil penalty for the alleged violation. On
January 22, 1987, the Secretary filed a Proposal for Penalty with the
Commission. Con-Ag did not file an answer to the penalty proposal.
Consequently, on March 13, 1987, Judge Merlin issued an Order to Show
Cause directing Con-Ag to file an answer within thirty days. Con-Ag did
not respond to this order.
The show cause order was sent by certified mail to the Wapakoneta,
Ohio address that Con-Ag was using at the time of citation. The order
was returned undelivered on March 20, 1987, stamped by the United States

989

Postal. Service "Attempted-Not Known." On June 1, 1987, Judge Merlin
issued an Order of Default finding Con-Ag in default and assessing the
Secretary's proposed $550 penalty. The judge's order states: "On March
13, 1987, you were ordered to file your Answer to the Proposal .... The
Order was returned unclaimed.
Under the Commission's regulations
service is complete upon mailing." The default order was.sent by
certified mail to Con-Ag at the same Wapakoneta, Ohio address.
On June 15, 1987, Con-Ag filed with the Commission a notarized
letter signed by Le~ Kuck requesting relief from default. Kuck attached
to his letter an MSHA change-of~address form providing MSHA with a new
address for Con-Ag in St. Marys, Ohio. It appears that this fo·rm may
have been sent to MSHA on May 29, 1986; a few weeks after the citation
was issued and nearly one year prior to the judge's show cause order.
Kuck also states that he checked with the Wapakoneta Post Off ice and was
told that the show cause order was returned to the sender "because bf
improper address." Kuck requests a hearing."due to the fact the address
was incorrect, and the fact that MSHA had the correct address. 11
The Commission has recognized that under appropriate circumstances
a genuine problem in communication or with the mail may justify relief
from default. See,~·· Kelley Trucking Co., 8 FMSHRC 1867, 1869
(December 1986; Fife Rock Prod. Co., Inc., 8 FMSHRC 1503, 1504 (October
1986). The record does not contain sufficient information to justify
our ruling summarily.on Con-Ag's claims. In fairness and consistent
with Commission precedent in default cases the operator should have the
opportunity to present its position to the judge, who shall determine
whether relief from default is appropriate. Kelley Trucking, supra.
For the foregoing reasons, the judge's default order is vacated
and this matter is remanded for further proceedings consistent with this
opinion.

,tt .
--

/

1.

~
I

Last6wka.~;Comm. issioner

£~-~~;

1·L ( ...L\L..-<.-iv
"

L. Clair Nelson, Commissioner

990

Distribu,tion
Lee Kuck
Con-Ag, Inc.
Rt. 1, Box 66A
St. Marys, Ohio

45885

Patri~k M. Zohn,. Esq.
Office of the Solicitor
U.S. Department of Labor
881 Federal Building
1240 East Ninth St.
Cleveland, Ohio 44199

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

991

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

June 30, 1987
DILLARD SMITH
Docket No. VA 86-9-D

v.
RECO, INC.

BEFORE:

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

DECISION

BY THE COMMISSION:
In this discrimination proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982), Commission Administrative Law Judge James A,. Broderick issued a decision
dismissing discrimination complaints filed by Dillard Smith and Lonnie
Smith. 8 FMSHRC 1592 (October 1986)(ALJ). The Commission granted
Dillard Smith's petition for discretionary review. For the reasons that
follow, we affirm the judge's decision.
Complainant Dillard Smith ("Dillard") and Lonnie Smith ("Lonnie"),
his brother, were employed from 1977 until November 26, 1985, by Reco,
Inc. ( 11 Reco 11 ) , located in Tazewell, Virginia. Reco was in the business
of selling and servicing mine batteries. The Smiths' duties primarily
involved the servicing of mine batteries, and at times they were
required to work in underground coal mines. Each performed somewhat
more than forty hours of such underground work in the six months prior
to November 26, 1985.
In November 1979, Dillard had received undarground miner training
approved by the Department of Labor's Mine Safety and Health Administration ("MSHA") and had earned the appropriate training certificate.
See 30 C.F.R. Part 48 (training regulations). Snbsequently, he did not
receive any annual refresher training or any further underground mining
training. Lonnie had never received any training for underground mines.
In June 1985, Dillard had become concerned about working in
underground mines without adequate training and he contacted MSHA. He
was informed that his training certificate had expired and that he
needed forty hours of additional training. That same month he asked his
foreman, Steve Williams, about annual refresher training for himself and

992

underground training for Lonnie. Williams nodded but did not otherwise
respond. Dillard did not raise the subject again until the day ~tter
his employment terminated.
On November 26, 1985, Dillard and Lonnie were servicing batteries
at Reco's shop. Around 9:00 a.m., Williams told Dillard that he had a
service call. Dillard asked if the service call was in an underground
mine. Williams informed him that it was. Dillard told Williams that he
was not going. Williams responded: "Change your clothes and you know
where the door's at. 11 Tr. 31. A similar exchange then occurred between
Williams and Lonnie. Shortly thereafter, the brothers turned in some
company property and left the premises.

On November 26 neither Dillard nor Lonnie told Williams or any
other Reco representative his reasons for refusing underground work.
When asked on cross-examinat~on at the hearing in this matter why he had
not told Williams of his reasons for refusing his assignment, Dillard
replied: "[Williams] did not ask me." Tr. 32.
The next day, on November 27, 1985, Dillard returned to Reco's
offices for his paycheck. He was told by Reco's receptionist/secretary
that it had been mailed to him the previous day. Dillard told the
secretary to tell Jack Pyatt, Reco's president, that the reason he did
not go underground was that "[his] training had expired." Tr. 61.
Meanwhile, also on November 26, Reco had decided to terminate its
mine battery sales and service business. This decision followed
discussions with Commonwealth of Virginia officials concerning health
and safety violations cited during an August 1985 state inspection. The
Virginia officials agreed not to pursue the violations contingent on
Reco's terminating its mine battery business. The company ended its
battery business on December 6, 1985, although certain limited wrap-up
functions were performed for a few months thereafter.
Dillard and Lonnie filed discrimination complaints with MSHA
pursuant to section 105(c) of the Mine Act, 30 U.S.C. § 815(c), but
following an investigation of their allegations MSHA determined that no
discrimination had occurred and declined to prosecute complaints on
their behalf. 30 U.S.C. §§ 815(c)(2) & (3). The complainants then
filed their own discrimination complaints with this independent
Commission pursuant to section 105(c)(3) of the Act. 30 U.S.C.
§ 815(c)(3).
Commission Judge Broderick consolidated the cases and held
a joint hearing. On October 17, 1986, the judge issued his decision
dismissing both complaints. Only Dillard sought review before the
Commission.
In his decision, Judge Broderick initially concluded that the
complainants had engaged in a protected work refusal on November 26. He
found that they had a reasonable belief that it was hazardous to work
underground without the miner's training mandated by section 115 of the
Mine Act, 30 U.S.C. § 825, and the Secretary's implementing regulations
at 30 C.F.R. Part 48. 8 FMSHRC at 1596. He also stated that "there is
no evidence that [their work refusal] was other than in good faith."
Id. Resolving conflicts in testimony as to whether Foreman Williams had

993

fired the br~thers immediately after their November 26 work refusal, he
found that they were in fact discharged at that time. Id. The judge
went on to conclude, however, that the complainants "were not discharged
for activity protected under the Act" (8 FMSHRC at 1597) because they
had failed to communicate adequately their safety concerns, citing
Simpson v. Kenta Energy, Inc., & Roy Dan Jackson, 8 FMSHRC 1034, 1038-40
(July 1986), pet. for review filed, No. 86-1441 (D.C. Cir. August 7,
1986); and Secretary on behalf of Dunmire & Estle v. Northern Coal Co.,
4 FMSHRC 126, 133-35 (February 1982). 8 FMSHRC at 1596-97.
Specifically, the judge found that it was "clearly reasonably
possible" for the complainants to have told Williams on November 26 that
they were refusing to work underground because of their perceived lack
of required training. 8 FMSHRC at 1597. The judge found that Dillard's
single request for training in June 1985 was insufficient to supply the
necessary communication on November 26, 1985. The judge determined that
Dillard's statement to Reco's secretary on November 27, the day after
the refusal, was inadequate communication of a safety concern under
Simpson and Dunmire & Estle, supra. The judge also noted that by
November 27, Reco "ha[d] already decided to cease operations, so it
would not have been possible for it to 'address the perceived danger.'"
Id., quoting Simpson, supra, 8 FMSHRC at 1039. Accordingly, the judge
concluded that no violation of section 105(c) had been established and
dismissed the Smiths' complaints.
The general principles governing analysis of discrimination cases
under the Mine Act are settled. In order to establish a prima f acie
case of discrimination 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 and (2) the adverse action
complained of was motivated in any part by that protected activity.
Secretary on behalf of Fasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2797-2800 (October 1980), rev'd on other grounds sub 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. Fasula, ~pra; Robinette, supra. See also Eastern
Assoc. Coal Corp. v. FMSHRL, 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 ~asula-Robinette test). Cf. NLRB v.
Transportation Management Corp., 462 U.S. 393, 397-413 (1983)(approving
nearly identical test under National Labor Relations Act).
In this proceeding, the fact that Dillard refused an underground
work assignment on November 26, 1985, and was fired by his foreman
because of that refusal is not in dispute. The primary issue presented,
therefore, is whether Dillard's work refusal was protected under the
Mine Act. See,~·· Secretary of Labor v. Metric Constructors, Inc.,

994

6 FMSHRO 226, 229-30 (February 1984), aff'd sub nom. Brock v. Metric
Constructors, Inc., 766 F.2d 469, 472-73 (11th Cir. 1985); Dunmire &
Estle, supra, 4 FMSHRC at 132-33.
A miner has the right under section 105(c) of the Mine Act to
refuse 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,~.,
Metrtc Constructors, supra. However, where reasonably possible, a miner
refusing work ordinarily must communicate or attempt to communicate to
some representative of the operator his belief that a hazardous
condition exists. Simpson, supra, 8 FMSHRC at 1038; 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
~mmunication requirement). Among other salutary purposes, the
communication requirement is intended to avoid situations in which the
operator at the time of a refusal is forced to divine the miner's
motivations for refusing work. As we emphasized in Simpson: "[T]he ·
right to make safety complaints and to refuse work under the Mine Act is
premised on the belief that communication of hazards and response to
such hazards are the means by which the Act's purposes will be
attained." 8 FMSHRC at 1039 (citations omitted). As further stated in
Simpson, a miner's failure to communicate his fear regarding a hazard
negates the opportunity for the operator to address the perceived danger
and would have the effect of requiring us to accept the untenable
presumption that no action would have been taken by the operator
regarding the miner's concern. 8 FMSHRC at 1039-40.
Neither of the Smith brothers communicated to Reco on November 26
any reason for his work refusal on that date. The judge found that
"[i]t was clearly reasonably possible for Complainants to tell Williams
that they refused to work underground because they lacked training" (8
FMSHRC at 1597), and substantial evidence supports this conclusion.
Dillard was asked several times at the hearing why he had not
communicated his asserted training concern, but provided no answer other
than that Williams had failed to ask him his reasons for refusing his
work assignment. The responsibility for the communication of a belief
in a hazard that under~ies a work refusal rests with the miner. The
record also supports the judge's conclusion that Dillard's single
question concerning training some five months prior to his refusal was
too far removed in time and too limited in nature to supply continuing
notice of a complaint or an implied communication of safety or health
concerns on November 26. Although Dunmire & Estle indicates that under
appropriate limited circumstances a post-work refusal communication may
suffice, there must be good reason for any delay. On the facts of this
case, Dillard has not advanced any acceptable reason for his failure to
communicate the hazard that he perceived until one day after his
termination.
Thus, Dillard failed to make the necessary communication of a
belief in a hazard and, accordingly, his work refusal was not protected
under the Mine Act. Because Dillard's work refusal was not protected,
his termination by Reco because of that refusal did not violate the

995

Act. ~/
On the foregoing bases, the judge's decision is affirmed.

/.-~~v{_~ -

'Richard V. Backley, Commissioner

~

/}
/; ~'
c1~d,[c
Joyce A. Doyle, colllilliSS(;ner

James A. Lastowka, Commissioner

;;;{;__.__;_.,/IL~._,,_,
L. Clair Nelson, Commissioner

~/

To the extent that the judge held that Dillard had engaged in a
work refusal apart from his failure of communication, the
judge erred. Proper communication of a perceived hazard is an integral
component of a protected work.refusal in the first instance rather than
a wholly ~eparate requirement. Further, under the circumstances of this
case, the fact that Reco had determined to cease its battery business is
not determinative of the issue whether section 105(c)(l) of the Mine Act
was violat.1d. Also, given our disposition, we need not pass on the
judge's findings that Dillard had a reasonable, good faith belief in
hazards associated with his limited training. We note, however, that it
is far from clear on the present record precisely what type of training
Reco, as a contractor, was obligated to provide the Smiths in view of
their occasional and intermittent servicing work in mines. See 30
C.F.R. § 48.2 (definitions of "miners" who must be provided with new
miner training, refresher training, and h~zard training). Under the
circumstances, that point need not be resolved here.
p~otected

996

Distribution
Robert B. Altizer, Esq.
Gillespie, Hart, Altizer & Whitesell, P.C.
P.O. Box 718
Tazewell, Virginia 24651
William B. Taltyt Esq.
106 E. Main St.
P.O. Box 599:
Tazewell, Virginia 24651
Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

997

998

ADMINISTRATIVE LAW JUDGE DECISIONS

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

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

JUN 11987

CIVIL PENALTY PROCEEDING
Docket No. CENT 86-6-M
A.C. No. 29-01936-05503
Sundt Crusher

v.
M.M. SUNDT CONSTRUCTION
COMPANY,
Respondent

DECISION AFTER REMAND
Appearances:

Allen Reid Tilson, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
for Petitioner;
Brian Murphy, Loss Control Manager, M.M. Sundt
Construction Company, Tucson, Arizona, pro se.

Before:

Judge Morris

On September 15, 1986, the Federal Mine Safety and Health
Review Conunission remanded the captioned case and directed
that the judge give respondent an opportunity to explain its
failure to comply with a prehearing order that resulted in a
default.
Such an opportunity was afforded and respondent filed
various documents supporting its request for a hearing.
Inasmuch as the Commission has indicated that a default is a harsh
remedy the judge granted respondent's request and set the case
for a hearing on the merits •
. The hearing took place in Albuquerque, New Mexico on
January 21, 1987. The parties waived their right to file posttrial briefs.
Issues
The issues presented are whether the violations occurred;
if so, what penalties are appropriate.

999

Stipulation
At the commencement of the hearing the parties stipulated
as follows:
1.

M.M. Sundt is the owner and operator of the mine.

2.

Respondent is subject to the Act.

3. The Federal Mine Safety and Health Review Commission
has jurisdiction.
4. The inspector was a duly authorized representative of
the Secretary.
5. A true and correct copy of the citations were served
on the operator.
6. The penalties will not affect the operator's ability
to continue in business.
7.

Respondent abated in good faith.

8. The operator has a good history with only two prior
violations.
9. The operator should be considered a large company
since it is one of the top 400 contractors. in the country.
10 •. Respondent's employees were wearing ear plugs and
respirators on the day of the inspection (Tr. 4).
Citation 2091027
This citation alleges respondent violated 30 C.F.R. §
56.SOSO(b). The regulation provides in part as follows:
§

56.5050 Exposure limits for noise

(a) No employee shall be permitted
an exposure to noise in excess of that
specified in the table below. Noise level
measurements shall be made using a sound
level meter meeting specifications for type
2 meters contained in American National
Standards Institute (ANSI) Standard Sl.4-1971.
"General Purpose Sound Level Meters" approved
April 27, 1971, which is hereby incorporated
by reference and made a part hereof, or by

1000

a dosimeter with similar accuracy. This
publication may be obtained from the
American National Standards Institute,
Inc., 1430 Broadway, New York, New York
10018, or may be examined in any Metal
and Nonmetal Mine Safety and Health District or Subdistrict Off ice of the Mine
Safety and Health Administration.
PERMISSIBLE NOISE EXPOSURES

Duration per day,
hours of exposure

Sound
level
dBA
slow
response

8................................
6................................

90
92

4... . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

95

2 •••••••••• ·• • • • • • • • • •. • • • • • • • • • • • •

10 0

1-1/2............................

102

1. . . . . . . . . . . . . . . . . . . . . . . • . • . . . . . .
1/2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1/4 or less......................

10 5
110
115

3................................

97

No exposure shall exceed 115 dBA. Impact
or impulsive noises shall not exceed
140 dB, peak sound pressure level.
(b) When employees' exposure
exceeds that listed in the above table,
feasible administrative or engineering
controls shall be utilized. If such controls fail to reduce exposure to within
permissible levels, personal protection
equipment shall be provided and used to
reduce sound levels to within the levels
of the table.

1001

Sununary of the Evidence
Petitioner's Evidence
MSHA Inspector Archie Fuller testified as to both citations.
He indicated that a dosimeter records noise levels in excess of
90 dBA. The level appears in a digital display (Tr. _26, Ex P-9).
He also discussed a typical dosimeter test to calibration (Tr. 27).
Employee Steve Morrison, a crusher laborer, was exposed
to excessive noise caused by the cone crusher, the belt transfer,
jaw crusher and generator (Tr. 28, 29). Morrison was working in.
and around this equipment (Tr. 29). Morrison was tested for about
eight hours (Tr. 30). Two other employees were not overexposed.
The crusher operator was protected by an insulated booth. The
oiler was exposed to 97.4 dBA (Tr. 50).
The inspector also uses an instrument that records an instant
sound level readout (Tr.' 30). The instant readout of the large
equipment ranged from 92 to 98 dBA.
The dosimeter on Morrison indicated a readout of 139 percent
or approximately 92.5 dBA (Tr. 3i). Anything reading over 90 dBA
constitutes overexposure.
Excessive noise can cause loss of hearing.
The inspector recommended that the employee clean the area
when the crusher was shut down (Tr. 33).
Three workers were monitored for noise but only Steve Morrison
was overexposed (Tr. 41).
Cleaning around equipment is a continuous activity.
meter does not get in the worker's ear (Tr. 46).

A dosi-

Respondent's Evidence
Bryan Hoyt Murphy testified he has been the loss control
manager for Sundt Corporation for 14 years. The company has a
number of plants around the United States (Tr. 53, 54).
Concerning the noise levels, the company had no proof that
the inspector's equipment was improperly calibrated. Further, the
company had insufficient manpower to rotate its workers. In
addition, the employees were protected by personal protective
equipment; i.e., foam earplugs. If properly put in the ears, a
10 to 18 dBA attenuation could be expected (Tr. 58).
Except for mufflers already installed, there are no other
engineering controls that could reduce the noise level (Tr. 59).

1002

Evaluation of the Evidence
The Secretary's evidence establishes a violation of the
noise regulation. Employee Morrison was exposed to a noise level
in excess of the permissible limit.
Respondent did not rebut the Secretary's evidence but relies
on the fact that the worker was wearing foam earplugs. It is
claimed that such earplugs reduce the noise level.
I reject respondent's argument. Even though the earplugs
may reduce the noise level, the regulation requires the use of
feasible administrative or engineering controls. The fact that
only one of two miners in the area was exposed indicates that
administrative rotation controls were readily available. Cf.
Jet Asphalt and Rock Company, Inc., 3 FMSHRC 940 (1981); Callanan
Industries, Inc., 5 FMSHRC 1900 (1983).
The citation should be affirmed.
Civil Penalty
The statutory criteria to assess civil penalties is contained in 30 u.s.c. § 820(i). Most of the statutory criteria
has been addressed by the stipulation of the parties. Concerning
the remaining elements the gravity appears low since only exposure over a long period can effect a worker's hearing. The
operator's negligence·must also be considered as low because it
believed its workers were protected by earplugs.
On balance I believe the $20 civil penalty, as proposed by
the Secretary, is appropriate.
Citation 2091028
This citation alleges respondent violated 30 C.F.R. §
56.SOOl(a) which provides as.follows:
§

56.5001

Exposure limits for Airborne
Contaminants .

Except as permitted by § 56.5005 (a) Except as provided in paragraph (b) ,
the exposure to airborne contaminants shall
not exceed, on the basis of a time weighted
average, the threshold limit values adopted
by the American Conference of Governmental
Industrial Hygienists, as set forth and explained in the 1973 edition of the Conference's
publication, entitled "TLV's Threshold Limit
Values for Chemical Substances.in Workroom
Air Adopted by ACGIH for 1973," pages 1

1003

through 54, which are hereby incorporated
by reference and made a part hereof. This
publication may be obtained from the American
Conference of Governmental Industrial Hygienists
by writing to the Secretary-Treasurer, P.O.
Box 1937, Cincinnati, Ohio 45201, or may be
examined in any Metal and Nonmetal Mine Safety
and Health District or Subdistrict Office of
the Mine Safety and Health Administration.
Excursions above the listed thresholds shall
not be of a greater magnitude than is characterized as permissible by the Conference.
Summary of the Evidence
Archie Fuller, an MS~ mining inspector for nine years, has
been trained regarding silica (Tr. 9-14).
Inspector Fuller calibrated the dust pump the day before his
inspection (Tr. 15). The witness further explained the methodology
used in taking a dust sample (Tr. 16-21, Ex P-7). The result in
an 8-hour sampling indicated an employee was exposed to a .88
shift weighted average of silica. The threshold limit value {TLV)
is .34 (Tr. 19, 21). Three samples were taken. One was voided,
one was not in violation and one analysis caused the issuance of
Citation 2091028 (Tr. 20, 48).
MSHA is concerned about silica because of the hazard of
silicosis, a lung disease. Silica will reduce the elasticity in
a person's lungs (Tr. 22,23).
Employee Jim Blackwell, who maintains and greases moving
parts on the crusher and conveyors, was the employee who was
exposed (Tr. 23, 25). The employee would not have been exposed
if he had performed the function when the crusher was shut down.
In addition, he could have been rotated with another employee
(Tr. 25). Further, the sprinklers which were frozen could have
been fixed (Tr. 25, Ex R-11).
In cross-examination the inspector indicated he calibrated
the dust sampler at the MSHA field office in Grants, New Mexico.
The altitude at that location is about 6200 feet as compared
with 5300 at the work site (Tr. 34). The inspector felt the
difference in altitude would not affect the result "that much."
The sampling pump was a Bendix Micronair (Tr. 35, 51). The pump
is not calibrated at the factory (Tr. 36).
On the day of the inspection the temperatures in Bloomfield
were never higher than 37 degrees, with a low of about 30 (Tr. 36,
37). The inspector considered the water sprays to be engineering
controls (Tr. 37).

1004

Blackwell was sampled outside the respirator and he was
exposed to silica-bearing dust, especially if his respirator had
a leak in it, was improperly fit, slipped down, or if he took it
off (Tr. 39, 40).
If the respirator was tight-fitting he wasn't
exr-osed (Tr. 41).
Blackwell's respirator was MSHA, OSHA and NIOSH approved
( Tr • 3 9 , 4 0 ) •
Concerning the dust citation, Brian Murphy, respondent's
witness, indicated the engineering controls were shut down the
day the citation was issued.
In addition, the company did not
have a sufficient number of workers on the site to rotate.them
(Tr. 54) •
Mr. Murphy attempted to obtain information as to the extent
a 900 foot difference in elevation would affect the test equipment. However, the National Safety Council and NIOSH could not
give a definitive calculation (Tr. 55).
The worksite was at 5000 feet and the pump was calibrated at
6000 feet. At the higher altitude the pump would be drawing
more air (Tr. 56).
Evaluation of the Evidence
As a threshold matter it is apparent that the pump was
calibrated for 6000 feet and the worksite was 900 feet lower.
The inspector agreed that this could cause some difference.
In
short, I agree with respondent's witness that the calibration .
at 6000 feet would cause the pump to draw more air when used at
the lower elevation. This could readily overload the sampling.
In addition, one cassette was voided and a third did not establish
a violation.
On balance, I conclude that the Secretary did not sustain
his burden of proof.
For the foregoing reasons Citation 2091028, and all penalties
therefore, should be vacated.
Conclusions of Law
Based on the entire record and the factual finding made in
the narrative portion of this decision, the following conclusions
of law are entered:
1.

The Commission has jurisdiction to decide this case.

2. Respondent violated 30 C.F.R.
2091027 should be affirmed.

1005

§

56.5050(b) and Citation

3. Respondent did not violate 30
Citation 2091028 should be vacated.

C~F.R.

§

56.SOOl(b) and

Based on the findings of fact and conclusions of law I
enter the following:
ORDER
1. Citation 2091027 and the proposed penalty of $20 are
affirmed.

2.

Citation 2091028 and all penalties therefor are vacated.

Law Judge

Distribution:
Allen Reid Tilson, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, Texas 75202
(Certified Mail)
Mr,_ Brian Murphy, Loss Control Manager, M.M. Sundt Construction
Company, P.O. Box 27507, Tucson, Arizona 85726
(Certified Mail)

/ot

1006

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

22041

JUN 2 1987
HOWARD H. ROSS,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. KENT 87-43-D

RICHLAND COAL COMPANY,
Respondent

BARB CD 86-83
Surf ace No. 1 Mine

ORDER OF DISMISSAL
On May 20, 1987, Counsel for both Parties jointly filed a
settlement in which they indicated that all matters in this case
are settled, and that they agreed for a dismissal with prejudice.
Accordingly, it is ORDERED that this case is dismissed with
prejudice.

Avram Weisberger
Administrative Law Judge
Distribution:
J. Thomas Marshall, Jr., Esq., 101 s. Main Street, Room 400,
Clinton, TN 37716 (Certified Mail)
Gregory G. Little, Esq., Hunton & Williams, First Tennessee Bank
Building, P. O. Box 951, Knoxville, TN 37901 (Certified Mail)
dcp

1007

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

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

..

JUN 21987

CIVIL PENALTY PROCEEDING
Docket No. WEST 87-21
A.C. No. 05-03644-03534

v.

Coal Creek Prep Plant

MID-CONTINENT RESOURCES,
INC.,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Edward Mulhall, Jr., Esq., Delaney & Balcomb,
Glenwood Springs, Colorado,
for Respondent.

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. § 801 et seq., {Mine
Act"). The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges the operator of a coal mine with
violating two safety regulations, 30 C.F.R. § 77.400(a) which
requires the guarding of moving machine parts, and 30 C.F.R.
§ 77.1700 which prohibits working alone in hazardous conditions.
This proceeding was initiated by the Secretary with the
filing of a proposal for assessment of a civil penalty. The
operator filed a timely appeal contesting the existence of the
alleged violations and the amount of the proposed penalties of
$6,000 and $1,000 respectively.
Discussion
When this civil penalty proceeding was called for hearing on
April 28, 1987, the parties announced upon the record that they
had reached a settlement.

1008

In Citation 2831741, counsel for the petitioner moved
that the penalty be reduced from the $6,000 originally proposed
to $1,000. Respondent, in turn, moved to withdraw its notice
of contest.
Petitioner's motion was based on the fact that in preparing
the case for hearing it was determined that the negligence in ·
this case was not as high as originally assessed.
In Citation 2831742, counsel for the.petitioner moved to
vacate the citation. Respondent had no objection.
The motion to vacate Citation 2831742 was based on the fact
that further study of the evidence revealed that a "hazardous
condition" within the meaning of safety standard 30 C.F.R. §
17.1700 did not exist.
Conclusion
After careful review and consideration of the pleadings,
arguments, and the information placed upon the record at the
hearing, I am satisfied that the proposed settlement disposition
is reasonable, appropriate and in the public interest.
·
Accordingly, the motions made at trial are granted.
ORDER

1. Citation No. 2831741 is affirmed and respondent is
ORDERED to pay a civil penalty of $1,000 within 30 days from the
date of this decision.
2. Good cause having been shown, Citation No. 2831742 and
its related proposed penalty are vacated.

()

+-~ ezt:

~ett.i

Administrative Law Judge
Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street, Denver,
Colorado 80294
(Certified Mail)
Edward Mulhall, Jro, Esq., Delaney & Balcomb, PQO. Drawer 790,
Glenwood Springs, Colorado 81602
(Certified Maii)
/ot

1009

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

22041

.JUN 21987
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 87-26
A. C. No. 46-06870-03510

v.
HIGH POWER ENERGY,
Respondent
CONTEST PROCEEDING

HIGH POWER ENERGY,
Contestant

Docket No. WEVA 86-408-R
Citation No. 2566728; 6/30/86

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

Twenty Mile Surface No. 901

DECISION
Appearances:

Virginia K. Stephens, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Secretary of Labor;
Roger L. Sabo, Esq., Millisor & Nobil, Columbus,
Ohio, for High Power Energy.

Before:

. Judge Melick

These consolidated cases are before me under Section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq., the "Act'', to challenge the issuance by the Secretary-Of Labor of a citation charging High Power Energy with a
violation of the regulatory standard at 30 C.F.R. § 77.1303(uu).
The general issues before me are whether High Power Energy violated the cited standard 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 or health
hazard, i.e., whether the violation was "significant and substantial".
If a violation is found, it will also be necessary
to determine the appropriate civil penalty to be assessed in
accordance with Section llO(i) of the Act.

1010

The cita.tion at bar, No. 2566728, charges as follows:
Two workmen (blasters) proceeded to re-enter a
charged area after an electrical storm had approached the blast site. A premature ignition
occurred resulting in fatal injuries to the workmen.
This condition/practice was determined by
an examination and investigation at the site.
The cited standard, 30 C.F.R. § 77.1303(uu), provides
that "when electric detonators are used, charging shall be
suspended and men withdrawn to a safe location upon the
approach of an electrical storm."
It is not disputed that on Saturday, June 28, 1986, at
1:15 p.m. an unintentional detonation of explosives occurred
at High Power Energy's Twenty Mile Surface Mine causing the
deaths of employees Randall Roop and Michael Roop.
The incident occurred at what was known as work site "A" in an area
30 feet wide and 128 feet long being prepared for blasting.
Within this area 17 56-foot deep holes had been drilled and
loaded with approxi~ately 748 pounds of ANFO explosive and an
electric blasting cap each.
The shots were thereafter wired
in series by Michael Roop, Randall Roop, and Lee Horrocks,
each admittedly an experienced and qualified blaster.
According to Horrocks, when he arrived on the blast
site around 11:30 that morning, all but three holes had
already been loaded with explosives.
The weather at that
point in time continued to be "nice". As they were wiring
up the holes and connecting a lead line, gray clouds began
to appear. According to Horrocks, as he was then stretching
the lead line away from the blast site, he saw it begin
hailing about 100 feet away "down the hill" and saw lightning "some distance away". By that time, however, the blast
area had already been evacuated.
As he finished stretching
the lead line to the blasting truck parked in a safe area
previously designated for the ignition, it began to rain.
It took only a minute from the time he began stretching the
·lead line to the time he arrived at the truck.
Michael Roop, Gary Collins, and Horrocks entered the
truck cab to get out of, the rain. Shortly thereafter Randy
Roop approached the truck and reported tha·t upon checking
with a galvanometer, he found the shot to be dead (meaning
that there was a defect in the electrical system preventing
the planned ignition). Horrocks told Randy Roop to get into
the truck so he would not get wet.
Randy stepped up to the
truck momentarily then, apparently changing his mind, stepped
off and said, "That's all right".

1011

According to Horrocks, Michael Roop then asked for two
raincoats and left the truck following Randy Roop. A minute
or so later Horrocks s~w lightning in the rear-view mirror,
followed immediately by the unplanned shot blast that killed
both Roops.
The storm lasted only three or four minutes and
the sky cleared again.
Gary Collins testified that after he finished drilling
the holes for the explosives, he parked the drill truck on
the upper bench road and returned to help stem the holes
loaded by the blasting crew. Collins recalled seeing lightning about one minute before the shot went off but this lightning was about 10 miles away and came only after he was already
in the blasting truck.
According to Collins, everyone was out
of the blast area when the black cloud first came over the
mountain.
Chilton Holcomb testified that he arrived at the blast
site around 11 that morning and helped load the ANFO into
the holes.
The holes had already been loaded and the wires
connected when Holcomb first saw a flash of lightning one to
three miles away in the hollow below.
There were also dark
clouds over the hollow but they were some distance away.
It was not clear to him which way the storm was then moving
and the sun was still shining overhead. Holcomb then drove
the drill rig to a safe area around a protected curve in the
upper bench road where Blasting Foreman Billy Collins also
waited.
Collins gave three siren signals announcing the
"all clear" for the shot but the shot failed to fire.
Holcomb
testified that he then proceeded around the protected curve
with Billy Collins to see what was going on and he then saw
lightning, followed by the blast.
High Power Energy's Blasting Foreman, Billy Collins,
had supervised blasting crews since 1975. He testified that
Randy and Michael Roop, the deceased, had worked for him for
17 years and he considered them to be the best explosives
loaders and the best "safety wise" of all the employees he
ever had. When Collins arrived at the blast area, the drill
had already pulled out and all but two holes had already
been loaded.
He recalled warning the blasting crew about a
black cloud he saw on the horizon, but at that point they
had only one or two holes to complete. They had already
hooked up the lead line when Collins left in his truck to
warn the "dumping crew" of the impending shot. Collins proceeded to the far end of the upper bench road, waved to
Randy Roop signalling that the shot was ready, then pulled
some 450 to 500 feet away around the bend and out of sight
in an area protected from the blast.
It was not raining at
that poirit and Collins blew his siren three times as a preblast
warning. At that point a thunderstorm appeared from the other

1012

direction over the top of the mountain behind him.
Three
or four minutes elapsed after the siren blast and nothing
happened.
Collins then returned around the bend to see the
blast site and saw two men returning to the shot. As
he was exitting his truck, the shot prematurely detonated.
Thomas Dickerson, the inspector from the Federal Mine
Safety and Health Administration (MSHA) who issued the
citation at bar, opined that if Foreman Billy Collins had
been present at the blasting truck, the accident would not
have happened.
Dickerson acknbwledged that there was no. industry practice or standard requiri~g a foreman to be present
at the triggering location at a blasting site.
Dickerson
also observed that many mines do not even have a blasting
foreman and that it was not contrary to safe industry practice
to not have a foreman present at the actual blast site.
The Secretary concedes in this case that the blasting
crew, and, in particular,, Randall and Michael Roop, were
experienced in blasting and aware of the procedures for withdrawinq from a blast site when electrical storms are aooroachina.
Indeed. thP. Secretary acknowlPdges that the fatalities
occurred when the victims, who knew an electrical storm was
present, failed to comply with a known company policy and
federal regulations requiring persons to be withdrawn to a
safe location away from the blast area during an electrical
storm.
The evidence is clear that there was a violation of the ·
cited standard in this case but that such violation was solely the result of the unforeseeable and aberrational behavior
of the two deceased employees.
The employees were indeed in
the process of evacuating the blast site and most likely had
already evacuated the blast site to a safe area upon the first
evidence of an approaching electrical storm.
It is acknowledged that the deceased employees were highly qualifie~ and
experienced blasters who were well-trained and knew of the ·
prohibitions against being on a blast site during an electrical
storm.
Under the circumstances, i t could not reasonably be
foreseen that .those employees would, in.the midst of a downpour
and evidence of an electrical storm, return to the blast site.
It is conceded by the Secretary that i t was not standard or
accepted industry practice to require a blasting foreman to
be present at the triggering location and, indeed, it was
acknowledged that Foreman Billy Collins' presence to block
one entrance to the blast site on the upper bench road was
not inconsistent with safe practices.
The law is well established, however, that an operator
is liable for violations of the Act committed by its employees,

1013

even if ·it is totally without fault.
Sewell.Coal Co. v.
FMSHRC, 686 F.2d 1066 (4th Cir. 1982); Allied Products Co. v.
FMSHRC, 666 F.2d 890 (5th Cir. 1982); Secretary v. Asarco, Inc.,
8 FMSHRC 1632 (1986); Southern Ohio Coal Co., 4 FMSHRC 1459
(1982); American Materials Corp., 4 FMSHRC 415 (1982); KerrMcGee Corp., 3 FMSHRC 2496 (1981); El Paso Rock Quarries, Inc.,
3 FMSHRC 35 (1981}.
dt is also clear from the evidence in this case that the
violative condition was of high gravity and "significant and
substantial". ·Secretary v. Mathies Coal Co., 6 FMSHRC 1 (1984).
In assessing a penalty herein I have also considered that the
mine operator is of modest size and has no real history of prior
violations. Most significantly, however, I find that the
violation was not the result of any operator negligence.
Indeed, as previously indicated, the evidence clearly shows that
the violation was the result of unanticipated and aberrational
employee behavior beyond the control of the operator's agents.
Within this framework of evidence, no more than a nominal
penalty of $1 is appropriate.
ORDER
Contest proceeding Docket No. WEVA 86-408-R is denied.
Citation No. 2566728 is affirmed and High Powe Energy is
directed to pay a civil penalty of $1 within 3 days of the
date of this decision.

Distribution:
Virginia K. Stephens, Esq., Office of the Solicitor, u. S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Roger L. Sabo, Esq., Millisor & Nobil, 41 South High Street,
Suite 2195, Columbus, OH 43215 (Certified Mail)

yh

1014

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

JOE ARNOLDI,
Complainant

.

JIJN 3 1987

DISCRIMINATION PROCEEDING
Docket No. WEST 85-161-DM

v.
Coeur Mine
ASARCO, INCORPORATED,
Re.spondent
DECISION
Appearances:

Nathan s. Bergerbest, Esq., Cotten, Day, Doyle,
Washington, D.C.,
for Complainant;
Fred M. Gibler, Esq., Fvons, Keane, Koontz, Boyd,
& Ripley, Kellogg, Idaho,
for Respondent.

Before:

Judge Morris

Complainant Joe Arnoldi brings this action on his own behalf
alleging he was discriminated against by his employer, ASARCO,
Incorporated, in violation of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c.A. § 801 et· seq.
The applicable statutory provision, Section 105{c){l) of the
Act, now codified at 30 U.S.C.A. § 815{c){l), in its pertinent
portion provides as follows:
No person shall discharge or in any other manrier discriminate against ••• or otherwise interfere with the exercise
of the statutory rights of any miner ••• because such
miner ••• has filed or made a complaint under or relating
to this Act, including a complaint notifying the operator
or the operator's agent, or the representative of the miners
•.• of an alleged danger or safety or health violation •••
or because such miner ••• has instituted or caused to be
instituted any proceeding under or related to this Act or
has testified or is about to testify in any such proceeding,
or because of the ex~rcise by such miner •.• on behalf of
himself or others of any statutory right afforded by this
Act.
~fter notice to the parties, a hearing on the merits was
held in Spokane, Washington commencing on December 2, 1986.

The parties filed post-trial

1015

briefs~

Applicable Case Law
In order to establish a prima facie case of discrimination
under Section 105{c) of the Mine A.ct, a complaining miner bears
the burden of production and proof to establish that (1) he
engaged in protected activity, and (2) the adverse action complained of was motivated in any part by that activity. Secretary
on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2797-2800 {October 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may rebut
the prima facie case by showing either that no protected activity
occurred or that the adverse action was not in any part motivated
by protected activity. If an operator cannot rebut the prima
facie case in this manner it nevertheless may defend affirmatively by proving that (1) it was also motivated by the miner's unprotected activities, and ·c2> it would have taken the adverse
action in any event for the unprotected activities alone. The
operator bears the burden of proof with regard to the affirmative
defense. Haro v. Magma Copper Co., 4 FMSHRC 1935, 1936-38
(November 1982). The ultimate burden of persuasion does not
shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20.
See also Boich v. FMSHRC, 719 F.2d 194, 195-96 {6th Cir. 1983);
Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir.
1984){specifically approving the Commission's Pasula-Robinette
test). The Supreme Court has approved the National Labor
Relations Board's virtually identical analysis for discrimination
cases arising under the National Labor Relations Act. NLRB v.
Transportation Management Corp., 462 U.S. 393, 397-403 (1983).
Summary of the Evidence
Complainant's Evidence
Wendell Kunst, William Arthur, MSHA Inspector James Arnoldi,
Joe Arnoldi and Kim Bradshaw testified for complainant.
On March 18, 1985 WENDELL KUNST had been assigned to stope
277 at level 3100. His co-worker, also a production miner, was
Bob Chavez. Complainant Joe Arnoldi (sometimes hereafter re- ·
ferred to as Joe, or Mr. Arnoldi) served as the nipper. Joe gets
supplies for the miners and operates the hoist in the raise (Tr.
14-16, 33, 336). A nipper's performance is important to the
efficiency of the mining operation (Tr. 16). Joe had done a good
job for the miners on other occasions (Tr. 16). They never found
him "goofing off" and his work never adversely affected their
production (Tr. 17).
On March 18 the miners left Joe at the tugger, about 60 feet
above the stope, with instructions to await their call for the
skip (Tr. 18, 19, 21). They didn't call for it. Kunst didn't
see Joe sleeping that morning nor did he know one way or another
if he was sleeping {Tr. 18-20).

1016

Kunst saw Michael Lee (mine manager) and William Arthur
(shift boss) that morning. Lee and Arthur didn't ask if Joe was
sleeping or unresponsive to their needs (Tr. 19, 30, 31).
It is important for the nipper to stay alert at all times
(Tr. 20). Kunst thought the tugger was safe. But it was in
close proximity to the haulage train (Tr. 21, 22). A miner can
tell when a train approaches (Tr. 23).
WILLIAM ARTHUR, shift foreman at the Coeur Mine, didn't see
Arnoldi sleeping on March 18 (Tr. 25). Arthur further identified
a document filed with the Idaho Industrial Commission. The
document stated that the shift boss and ·mine superintendent both
observed Joe Arnoldi asleep at the top of 277 (Tr. 25-28). In
fact, Arthur indicated that Arnoldi's eyes were open when he saw
him (Tr. 28).
Arthur had been walking about six or seven feet behind Lee
as they approached the 277 stope. They were checking to see if
the miners were doing the work safely and if they needed material
(Tr. 29). When Arthur first saw him Arnoldi was six feet from
the tugger sitting down.or leaning against a rock or some burlap.
0

He then heard Lee tell Arnoldi that he wasn't supposed to be
sleeping on the job (Tr. 30, 35, 55). Lee had no conversation
with Arthur before he took Arnoldi out of the mine except to ask
if such action was justified (Tr. 31). To take a miner to the
top usually means he's going to be fired (Tr. 32). Arthur didn't
recommend to Lee that Arnoldi be fired or suspended (Tr. 32, 33).
Arthur had been interviewed by MSHA special investigator
Lopez. He kept one copy of the interview and turned one over to
Andre Douchene, the mine manager (Tr. 37, 40). Arthur did not
indicate to the company attorney, Fred Gibler, that he did not
want to verify the accuracy of the MSHA statement. However, Mr.
Gibler represented such was Arthur's position (Tr. 38, 56).
Lopez did not followup with Arthur (Tr. 57).
In February 1985 MSHA inspector Jim Arnoldi and Don Downs
issued ASARCO a loose ground citation. The cited area was under
Arthur's jurisdiction (Tr. 39, 57). Mine manager Douchene
attempted to fire miners Ernie Myles and Bob Magoon because of
the citation (Tr. 40). Douchene wanted them fired because they
had disregarded his directions to bar down the slab. Joe Arnoldi
was the nipper for Magoon and Myles (Tr. 40, 58). Douchene
cooled down when he learned Arthur had told them not to further
bar down the loose ground (Tr. 41, 58). Jim Arnoldi and Downs
also inspected the 277 raise, on the 3100 level (Tr. 59).
The tugger at the 277 raise, 3100 level is mounted on a 10 x
10 and it hoists timber and supplies in the raise.
It has 700
feet of cable (Tr. 42, 43). When the tugger is raising the skip
the operator would be watching either the wire drum or the skip
(Tr. 44, 45). Arthur has observed Joe Arnoldi operating the

1017

tugger while standing on the 10 x 10 cap (Tr. 45). Arthur has
seen other miners operate the tugger in a similar fashion (Tr.
45). The cap is behind the timber and the haulage train track
(Tr. 46).
Some tuggers were mounted on the other side of the
timber. This particular tugger was mounted between the haulage
train track and the timber because there was already a tugger
bench mounted there (Tr. 46). The clearance between the train
track and the tugger measures 30 to 32 inches (Tr •. 46). When a
miner is operating the tugger it would be 20 inches from the back
of his foot to the train track. The train itself extends about
10 ipches so the clearance is about 7 to 10 inches wtien the train
passes (Tr. 47, 48).
Arthur didn't consider this a safety hazard because the
operator probably didn't stand there when the train went by. By
moving one step either direction the tugger operator would be out
of the way (Tr. 47, 48).
The slusher, weighing 400 to 500 pounds, is the heaviest
item hoisted by the tugger (Tr. 48). If a train were to come
through while lifting the slusher the nipper would be expected to
set the brake and move aside (Tr. 49). The nipper could see
lights on the five car train for 100 feet or more (Tr. 49).
However, a curve obstructs the motorman's visibility of Arnoldi's
location (Tr. 49, 50). If the engine was pushing the train the
motorman would be 40 to 50 feet back towards the rear of the
train (Tr. 50). Usually there is a miner, called a swamper, who
rides on the second car of the train (Tr. 51).
A nipper can usually see the train with his side vision
(Tr. 54). There are no special safety rules directing the
motorman to stop and be certain that the nipper is busy at the
34-277, 3100 level (Arnoldi's work station)(Tr. 54).
When the train is in motion it rings a bell. But the exhaust fan near Arnoldi's work station might drown out such noise
(Tr. 54). Neither Joe Arnoldi nor any other miner ever complained to Arthur about the height of the tugger or its distance from
the track (Tr. 59). During a work shift a nipper would operate'
the tugger, at the most, an hour and a half (Tr. 60); An exception would arise· when the operator was raising a crib. That
operation might take all day (Tr. 60).
Arthur has never had any problems with nippers getting out
of the way of trains (Tr. 61).
On March 18 the train motor was not running. The train was
sitting at the top of 277, right at the tugger (Tr. 61).
Witness Arthur identified his handwritten statement from his
notebook (Exhibit E). Arthur didn't talk to Lee or Andre
Oouchene before writing his notes (Tr. 64>.
On the morning of March 18th the temperature at Arnoldi's
work station was 75 to 80 degrees (Tr. 66). Arnoldi's position
was a good place to sit (Tr. 66). Arnoldi's area was reasonably
clean that day.
1018

Other than for Lee's statement Arthur does not have any
reason to believe that Joe Arnoldi was sleeping that morning (Tr.
68} •

MSHA INSPECTOR JAMES ARNOLDI has been assigned to the
Spokane Coeur d'Alene, Idaho field office for ten years. He is
well respected by a large majority of his fellow inspectors (Tr.
70-72).
MSHA's lead inspector is normally permanently assigned to a
mine and he normally issues the citations arising during any
inspections CTr •. 73). The "second" inspector could also write
citations. If they both observed a violation the lead inspector
would write the citation {Tr. 73). Inspector Arnoldi was not the
lead inspector for ASARCO's Coeur unit (Tr. 74). Don Downs had
that position (Tr. 75). Most of the time Inspector Downs was
alone when he inspected the Coeur mine (Tr. 75).
In 1984 Inspector Arnoldi had conducted hoist inspections at
the mine (Tr. 76). In February 1985 Inspector Arnoldi's
supervisor assigned him to the Coeur mine as the second inspector
(Tr. 75, 76). The next MSHA inspection commenced February 5 and
concluded February 21 (Tr. 76).
Inspector Arnoldi's status was questioned at the mine and,
in front of shift bosses and manager Carole Ward, Downs stated
that Arnoldi was just his XXXX secretary and he was there to take
notes (Tr. 77, 116, 117). Inspector Arnoldi complained to his
supervisor about Inspector Downs'·· comments <Tr. 78}.
During the inspection in February 1985 Inspector Downs
issued three citations. Inspector Arnoldi participated and
~oncurred with Downs that the citations should have been issued
(Tr. 79, 80). An S & S citation was issued for loose ground on a
hanging wall (Tr~ 80). Bradshaw and Bill Arthur were also
present (Tr. 80). The two miners involved in this incident were
initially fired for this willful violation. Joe Arnoldi was, in
effect, an MSHA informant concerning this event (Tr. 81>.
Inspector Arnoldi advised Downs that the loose ground violation
was ~ore serious than they had initially anticipated (Tr. 82).
There was a second loose ground citation (Tr. 82). ASARCO did
not dispute the S & S loos~ ground citation but the company
disputed the non S & S loose ground citation (Tr. 86).
Inspectors Downs and Arnoldi attended the closeout
conference with company representatives Andre Douchene and Kim
Bradshaw (Tr. 83). Douchene was also the elected miner's
representative (Tr. 83, 84). Inspector Arnoldi had told some of
the miners that they could elect their own miner's representative
from within the ranks of the miners (Tr. 85). In discussing the
non S & S citation Inspector Arnoldi pointed out that the ground
fractures had no oxidization around them. Douchene then got
redfaced and puffed up he said that "you may be the law but I'll
show you who the law is around here". He then stormed out the
door (Tr. 87). In two or three minutes he returned and stated

1019

"All I n~ed is one letter to get rid of you around here." Inspector Arnoldi told him to write the letter (Tr. 87). He also
stated he was there under supervisory orders and he didn't care
to be at the mine (Tr. 87). Douchene then stated that the inspector was involved in a.conflict of interest with his family
working there.
In addition, Douchene stated "You have too much
[family] here to XXXX around too much" (Tr. 87, 88).
MSHA's conflict of interest policy, set for in Exhibit C3,
does not prohibit an inspector from inspecting a mine where a
relative works (Tr. 89, 91). Joe Arnoldi was his only blood
relative at the mine.
However, by marriage there are two
stepsons, two brothers-in-law, nephews and an uncle. There were
enough relatives to be concerned about retaliation (Tr. 92, 123).
Joe is the only relative working at the Coeur unit with the last
name of Arnoldi (Tr. 92).
The inspector told his supervisor about Douchene's remarks
(Tr. 92, 93).
On March 19, 1985, the following day, MSHA was intending to
inspect ASARCO's hoist at the Galena mine three miles from the
Coeur mine (Tr. 93, 94). In arranging this inspection Inspector
Arnoldi called Douchene and told him they would inspect the hoist.
Then ASARCO's schedule would be "straightened out for the year"
(Tr. 95). The inspector denied there was anything to straighten
out on the hoist inspection (Tr. 95). In that conversation
Douchene didn't tell Inspector Arnoldi that Joe was suspended,
[or was about to be suspended].
Inspector Arnoldi hadn't seen
his son for a week CTr. 95).
Later that afternoon Mike Lee called Inspector Arnoldi and
said he wanted Joe to come to the mine as soon as possible CTr.
97). The next night Inspector Arnoldi learned that Joe had been
fired (Tr. 97). · Inspector Arnoldi did not immediately connect
his son's discharge with his official inspection activities (Tr.
9 7) •
The hoist inspection at the Coeur unit was cancelled due to
a hoist malfunction at a different mine (Tr. 98).
Joe advised hi~ father that Douchene had told him to
"rustle" every day and keep rustling and he'd get his job back
(Tr. 99).
Sometime in May Inspector Arnoldi wrote a statement (Exhibit
C4). At that point he believed ASARCO was discriminating against
another relative, Steven White (Tr. 100). This particular
incident involved an injury to White coupled with Douchene's
directive that White return to work or be terminated (Tr. 100,
101, 135).
Inspector Arnoldi claimed that Andre Douchene intimated him
in violation of the U.S. Criminal Code CTr. 103). If the inspector had inspected the tugger at the 34-277 raise 3100 level
he would have issued a citation due to the fact that there was
1020

only ten inches between the tugger and the railroad car (Tr. 104,
138). Joe told his father about this unsafe condition (Tr. 139).
The inspector probably didn't tell Joe to put the complaint in
writing. The inspector did not inspect it himself (Tr. 139-,
140).
Inspector Arnoldi has inspected the Coeur mine.a dozen
times in a three year period (Tr. 104, 105). Except for the
February 1985 inspection, Carole Ward was the unit manager. Joe
Arnoldi was originally hired by ASARCO after his father had a
discussion with the manager (Tr. 105-108). Inspector Arnoldi did
not solicit Ward. for a job for.his son (Tr. 144). Ward knew Mr.
Arnoldi was an MSHA inspector because he had been there several
times (Tr. 108). In 1982 or 1983 other MSHA inspectors conducted
the regular inspections at the mine (Tr. 108).
Inspector Arnoldi has reviewed MSHA's conflict of interest
policy at least annually (Tr. 124). He had not told his
supervisor that he had seven or eight family members at the Coeur
mine (Tr. 125). But he told his supervisor that he didn't feel
comfortable going there. ·The MSHA supervisor knew he had many
relatives working at the mine (Tr. 125, 126, 142). Inspector
Arnoldi didn't feel there was a conflict of interest to
investigate a mine where relatives work (Tr. 141, 142).
About noon on March 19, 1985 Inspector Arnoldi called Mr.
Douchene and advised him of a noist inspection.
At that time
prior notice of such an inspection was an accepted practice. The
prior notice permitted the operator to have its ropemen and
electricians available (Tr. 126, 127).
On May 15th, when he wrote his explanation seeking criminal
penalties against Andre Douchene, Inspector Arnoldi knew the
company claimed Joe had been caught sleeping. But nothing
appears in the statement to that effect (Tr. 128-130; Ex. C4).
The inspector's son claimed he had not been sleeping and the
operator took a contrary view (Tr. 131). In his statement Inspector Arnoldi also wrote that he thought Douchene's statements
at the closing conference were made in jest. But he meant he
hoped he was only jesting. Since Douchene was "immediately"
angry Inspector Arnoldi didn't believe he was merely jesting (Tr.
131, 132; Ex. C4).
Inspector Arnoldi agrees that it is not a safe practice to
sleep in the raise CTr. 138).
The witness believed that Andre Douchene carried out his
threats by terminating his son (Tr. 143).
In 1981 MSHA inspectors were passing out miner's rights
booklets at the mine (Tr. 85). The MSHA manual instructs the
inspector to notify miners .of their rights and the booklet serves
that purpose (Tr. 86).

1021

It was Andre Douchene who ran the inspectors off the site
for distributing the rights booklet (Tr. 85, 110-112). No
citations were written as a result of that incident (Tr. 113).
When he was recalled as a witness Inspector Arnoldi changed his
testimony and indicated that Dave Lewis, and not Andre Douchene,
was the ASARCO manager at the time of the pamphlet incident (Tr.
365-366' 37]_).
Larry Nelson, the supervisor of the local MSHA off ice, in a
written memorandum, stated the MSHA pamphlets could be·
distributed (Tr. 366, 367; Ex. C23).
JOE ARNOLDI is now employed as a downhole driller and he
resides in Michigan (Tr. 147, 148).
In his current employment he
has received no warning slips or complaints about his job
performance. He also works overtime at his present job (Tr.
148).
The witness was employed by ASARCO from April 19, 1981 to
March 20, 1985. In the instant case he seeks reinstatement (Tr.
149). Before moving to Michigan he worked for the U.S. Forest
Service for a month and for an asphalt company for a few weeks
(Tr. 150).
In high school Joe's highest grade in English was a "D". He
also failed the course on one occasion. After quitting high
school he worked in the oil fields and elsewhere. He eventually
received a general education diploma (Tr. 151).
At ASARCO his entry level job was that of a mucker.
He was
later promoted to nipper motorman (Tr. 152). He also filled in
stopes and worked with the repair crew (Tr. 152). His pay was
based on production (Tr. 153).
ASARCO maintains a warning slip procedure. A miner is
terminated if he receives three such slips in a 90 day period.
Joe has received nine warning slips (Tr. 153, 190).
On August 7, 1981 he received, deservedly, a warning slip
for carrying explosives on a battery locomotive (Tr. 154, 191).
On April 18, 1983 he received a slip for failing to follow
orders and for unsatisfactory work. He stated why he didn't
deserve this warning (Tr. 154, 230).
On April 27, 1983 he was injured on the job when struck in
the left wrist by rocks falling down the raise (Tr. 154, 155,
214, 215; Ex. CS). Joe told his supervisor, Charlie Castelli, he
wasn't going to get under the raise in these circumstances. His
supervisor then issued a warning slip for poor work (Tr. 155,
156, 191). This incident was discussed at a safety meeting on
May 25, 1983 (Tr. 157~ Ex. C6).

1022

Mr. Arnoldi suffers from allergies. His condition was
diagnosed at .age 7 (Tr. 158, 159: Ex. C7 >. He has continued to
receive treatment while employed by ASARCO (Tr. 160, 194). He
always presented a doctor's release when he returned to work. A
failure to present a doctor's release will result in an unexcused
absence. ASARCO's health fund paid the medical bills (Tr. 161,
195, 196). When the allergies are really severe Joe did not go
to work. He believes the concern about his allergies renders it
unsafe for him to be on the job (Tr. 161, 162).
Mr. Arnoldi.received two unexcused absences in the 30 day
period before August 11, 1983. At that time he was visiting his
doctor for his allergy condition (Tr. i62). The ASARCO health
plan also paid for those visits (Tr. 163>. Because he had a
doctor's excuse he didn't think he should have received the
absences (Tr. 163, 226).
On October 14, 1983 he received a warning slip and a five
day suspension for allegedly sleeping on the job. Joe denied he
was sleeping. He protested to Andre Douchene on the third day.
Douchene put him back on the job the following day (Tr. 169, 170,
200). Ron Maehl's diary entry of October 14-83 explains the
reason for the layoff (Tr. 170: Ex. Cl2). This warning slip was
not deserved (Tr. 227).
Mr. Arnoldi couldn't recall if he deserved the warning slip
of May 22, 1984. But he thought it was "okay" because Andre
Douchene had said they were allowed to miss two days a month (Tr.
198, 199).
On May 22, 1984 a warning notice for hauling a chain and
motor was not deserved because he was a passenger on the motor.
However, he did not protest the notice: it only makes things
worse to compla_in (Tr. 199, 200) •
On July 27, 1984 the witness received a warning slip for two
unexcused days off in a 30 day period. The absence was because
of allergies. He believed that warning notice was de~erved (Tr.
164, 197, 227, 229).
On August 16, 1984 he received a slip for three days unexcused absences which was partially duplicative of the prior
warning slip CTr. 164, 197). The diary of Michael Lee explains
the August 16th warning (Tr. 164: Ex. C9). The diary indicates
that Mr. Arnoldi did not show up for work on July 20~ July 27 and
August 15th (Tr. 166). ~e had a justifiable excuse since he was
under a doctor's care and suffering from, and being treated for,
allergies on these dates (Tr. 166, 167, 221, 229: Ex. Cl0).
On December 4, 1984 he received a warning notice for failing
to report for work on November 16 and December 3 but he thought
he might have been on vacation (Tr. 168, 1691 Ex. Cll).

1023

Joe's father is MSHA Inspector Jim Arnoldi, who inspected
the Coeur uni~ in February 1985 (Tr. 171, 172). As a result of
that inspection co-workers Magoon and Myles told Joe Arnoldi they
had been fired. Also Douchene was mad because ASARCO had been
cited for loose ground (Tr. 172, 173). Joe related this
information to his father (Tr. 173, 206). Joe was aware of his
miner's rights but Magoon and Myles were not (Tr. 205, 206).
On March 18, 1985 Joe arrived at work about 6:35 a.m. (Tr.
173). The shift starts at 7 o'clock (Tr. 174). He was nipping
at the 277 raise for Chavez and Kurst. The miners instructed him
to await their·signals (Tr. 174, 175). After some preliminary
work he sat down behind the tugger. The temperature was 90 to 95
degrees and he felt a little faint. The fan had been turned off
(Tr. 175, 207).
While sitting five or six feet from the tugger Bill Arthur
and Mike Lee walked up. Lee said "caught you sleeping". Joe
didn't tell Lee that this was the second time he'd been caught
sleeping. Lee asked Joe what I had done for the weekend.
[Joe
had attended a St. Patrick's Day party in Butte, Montana](Tr.
176, 207). After talking about the weekend, Lee and Arthur went
down the raise. Lee subsequently reappeared and said he was
going to bring Joe out for sleeping (Tr. 177). Lee also indicated he was going to talk to Douchene. Joe didn't see
Douchene that morning. About ten minutes later Lee told Joe he
was temporarily suspended. Lee also asked Joe of an address
where he could contact him (Tr. 177, 178). Two days later, on
March 19th, Lee requested that Joe come to the mine (Tr. 178).
Lee then fired him. He was given his paycheck but no vacation
check. Joe believed he was fired in retaliation for his father's
MS~A activities (Tr. 179).
His termination notice read "absolutely no rehire" (Tr. 375).
The following day Joe contacted Douchene and was told to
keep on rustling and he'd hire him oack like he did Bob Elisoff.
Joe didn't tell Douchene or Lee that he wasn't sleeping on
the morning of March 18th. He believed that being aggressive
would not get his job back.
He rustled by asking Lee or Douchene every morning at the
main office for 55 or 60 days if they were hiring. He was not
reoffered a job at the Coeur unit (Tr. 180, 181, 375, 377). He
was treated fairly except towards the end (Tr. 182).
After being fired Joe filed for unemployment benefits with
the State of Idaho.
In filling out the state forms he couldn't
write well and he couldn't write the reason why ASARCO discriminated against him. The reason he wanted to put down was that he
was discriminated against because of his dad's MSHA inspections.
He also wanted to state he was not sleeping. The papers he filed
are accurate (Tr. 205; Ex. R-A). Instead of putting down his
reasons why he was fired he put down ASARCO's reasons, i.e., that

1024

he had been caught sleeping at the 277 raise (Tr. 183, 200-203,
230, 231; Ex~ R-A). The State of Idaho held he was ineligible
for unemployment benefits and he later told that his appeal time
had lapsed (Tr. 213, 218).
In his complaint filed with MSHA he alleged that his
complaints about the tugger caused him to be fired.
The
complaint was that he couldn't operate the tugger comfortably and
he could not see over the drum to observe the skip (Tr. 184, 185).
Joe had been instructed not to operate the tugger when the train
was in the area. But he could not hear the train or see its trip
lights (Tr. 85, 186). Ninety, percent of ·the time the swamper
stayed back at the raise to pull down the muck (Tr. 186). There
was no means of communicating with ·the train motorman who is 50
to 60 feet back from the front when he is pushing the train. Joe
complained about the height of the tugger as well as its
proximity to the haulage train track. His complaints were·
directed to Bill Arthur and also discussed in a safety meeting.
He also told his father that the tugger was too high and too
close to the tracks. His father said he wasn't inspecting in
that area and he recommended that Joe talk to Bill Arthur.
Arthur thought the tugger was fine. To compensate for the
height of the tugger Joe stood on a pi~ce of timber set between
the tugger and the track. He thought this was dangerous since
the fifth wheel could hang up and derail the train (Tr. 186-188,
207-209). There were a few times when Joe was busy with the
tugger and had to jump out of the way of the train (Tr. 188).
When he was a motorman Joe complained about the condition of
the brakes and the controllers on the locomotive. He wrote up
this condition on December 21, 1982 and the following days (Tr.
189). The motors were fixed on December 28, 1982 (Tr. 189). Joe
does not claim that the 1982 incident caused him to be fired (Tr.
190) •
Joe did not know what happened at the February 21, 1985
close out conference but his father told him about it and said
he should "watch his back" CTr. 212). He learned about the conference about the time he filed his report with MSHA's special
investigator Lopez CTr. 212).
KIM BRADSHAW, the company's safety engineer, works with the
Coeur and Galena units. He is in charge of training and safety
(Tr. 244, 322). The unit manager and mine superintendent set
safety policy for the Coeur unit (Tr. 245).
Bradshaw attended a closeout conference on February 21, 1985.
MSHA Inspectors Jim Arnoldi, Don Downs, and Emmett Sullivan were
present. Andre Douchene, the Coeur manager, was also present
(Tr. 247). The conference had concluded and Arnoldi said he
would be inspecting the mine; further, he said to Andre that if
they had better management they wouldn't have a problem. Andre
took it in jest, laughing and smiling. He replied "You may be

1025

the law but we will see who the law is around here (Tr. 248-252).
The further thrust of the statement was that a letter would
prevent 'Jim Arnoldi from inspecting the mine (Tr. 253 >. The
comment about the letter followed after Jim Arnoldi stated that
Downs was going to be moved and that he would be the next
inspector (Tr. 254). Bradshaw was not involved when Joe Arnoldi
was fired 26 d~ys later (Tr. 254, 255, 331-336).
Bradshaw conducts and keeps minutes of his safety meetings
(Tr. 255, 325, 326). His notes would summarize any pr.oblems (Tr.
256).' On October 25, 1983 miner Chavez commented that the boss
was sleeping. Bradshaw didn't distinctly remember taking the
complaint to management (Tr. 258). Nor did Bradshaw know if the
comment was investigated (Tr. 258, 259). The company policy
concerning sleeping on the job was discussed at safety meetings
<Tr. 259; 263, 264; Ex. Cl7). The company policy prohibits
sleeping in the mine. Punishment for sleeping could include
warning slips, time out, or being brought out of the mine (Tr.
261, 265). Bradshaw has probably told miners they would be
suspended if they were caught sleeping (Tr. 262) •.
Joe Arnoldi expressed concerns about safety. Particularly,
he thought a swamper should ride in the second to last car
(Tr.265). Swampers are not assigned to every haulage train in
the Coeur unit (Tr. 266).
Joe also complained about the incident in which he was
injured. The miners were instructed at the next meeting to watch
out for nippers below CTr. 267). Joe also complained about trip
lights. The lights are on the trains at the mine (Tr. 269). At
a safety meeting on February 15, 1983 the interaction of miners
and haulage trains was discussed (Tr. 270, 271; Ex. Cl9).
Bradshaw has received MSHA training and he was familiar with
30 C.F.R. § 57.905 concerning train movements (Tr. 272, 273).
Neither on March 18, 1985 nor at any other time did Joe
Arnoldi express any concern about the proximity of the tugger to,
the train track, or about its height (Tr. 273, 328>. Bradshaw
measured the distanc~ from the back of his foot to the train
track at 19 inches. It was 30 inches from the track to the
tugger. The train extends out on both sides of the track some 8
to 12 inches (Tr. 275-277). Arnoldi's work station was situated
between the tugger and the train track. The tugger could only be
operated from this position. In sum, the distance between the
back of the nipper's foot and the moving train would be seven
inches CTr. 277). Trip lights, warning bells, miners' cap lamps
are designed to warn people of the train's movements. Trains
that pass the 34-277 raise at the 3100 level are pushed (Tr. 278).
There were two curves, one 30 degrees and the other 40 degrees.
On the 40 degree curve Bradshaw hadn't tested it but he believed
the motorman, 47 or 48 feet back, could not see Arnoldi at his
work station (Tr. 279-281). A nipper at this location, if he was
looking, could see the trip light when the train was rounding the

1026

40 degree curve (Tr. 282, 286). If people were engaged in normal
activity they probably would not hear the train (Tr. 282, 283).
The noise level at this location, excluding the train, was
measured at 70 dBA. A nearby auxiliary fan, which operated
continually, was measured at 85 dBA. The tugger exhaust runs
about 100 dBA (Tr. 284). The noise from the tugger would override the train noise. The bell on the train is 75 dBA (Tr. 285).
In sum, the noise from the tugger and the fan would prevent a
miner from hearing the train. Accordingly, neither the bell nor
the light were effective in warning people with certainty that
the train was coming at the 34-277 raise, 3100 level (Tr. 286).
The company has never been cited for the tugger nor for a train
coming close to a nipper CTr. 329, 341).
Joe should be able to see the illumination of a cap light.
While the motorman wears the same cap light as any other miner
Joe would probably not be able to tell if it was a train or
another miner approaching CTr. 286-289). The motorman should be
able to see the illumination from Joe's light (Tr. 289). The
intense part of the head light is directed ahead but there is
also illumination to the side (Tr. 291).
ASARCO has safety procedures for haulage trains but no
specific rules relating to Joe's work station (Tr. 291, 292).
The safety manual states that the motorman must stop until
everyone is in the clear (Tr. 292). Bradshaw had not heard any
complaints concerning the train at Joe's work station (Tr. 292,
293). There are "slow down" signs at air doors but no such signs
on the curves at 34-277 raise, llOO level (Tr. 293). The safety
meetings never discussed the hazards at 34-277 raise, 3100 level
(Tr. 294, 295). The safety manual does not discuss any hazards
at that location nor is there any company policy or speed
restriction relating to the location (Tr. 295, 299). Bradshaw
had never instructed any motormen to get out and be sure that no
miner was opera'ting the tugger at the 34-277/3100 location before
moving a train past that area (Tr. 297). Nor was that discussed
at the safety meetings. There are some areas in the mine where
. you would not want to operate the train at full speed,. The
safety manual stresses that the motor must be under control at
all times (Tr. 298). The motorman knows where to slow down CTr.
299).
Trains infrequently derail at the Coeur unit. Such derailments are usually caused by loose track or muck (Tr. 300).
ASARCO does not have its own heat standards in the mine.
The ventilation system, generated by fans, automatically runs at
all times (Tr. 302).
In 1984 the Coeur mine accident/incident rate was about 1.4
(Tr. 304). MSHA usually investigates any nonfatal accidents at
the mine (Tr. 306, 307).

1027.

When Joe started in 1981 he was instructed of his rights
under the Mine Act (Tr. 308, 309). But he was not given a copy
of the MSHA booklet because there is no such legal requirement
(Tr. 309). Management did not want the Miner's Rights booklet
distributed for that reason (Tr. 309, 310). After 1981 Bradshaw
did not distribute the booklets as part of the miners' orientation (Tr •. 310). In teaching the newly hired miners Bradshaw
reviews a typed copy of the booklet CTr. 311).
On March 18, 1985 Andre Douchene had been elected as the
miners' representative by two ballots. There are 150 miners at
the mine CTr. 314).
On December 8, 1981 MSHA inspectors Alvin Fischer and Donald
L. Myers handed out MSHA booklets (Tr. 317, 318). One of the
booklets were turned over to the then unit manager, David L.
Lewis (Tr. 318). After an investigation it was concluded that it
was not MSHA's responsibility to distribute the pamphlets. Lewis
then wrote to Russell, the MSHA subdistrict manager for the Coeur
mines (Tr. 318, 319). A conversation followed with the inspectors and Lewis directed them to stop such distribution (Tr.
319; Ex. 21>. On February 24, 1982 the then Assistant Secretary
of Labor for Mine Safety and Health conf itmed that the practice
of distributing such pamphlets was "not representative of any
official MSHA policy" CTr. 347, 348; Ex. U).
Respondent's Evidence
MSHA Inspector Donald F. Downs, Mike Lee and Andre Douchene
testified for respondent.
DONALD F. DOWNS, an MSHA inspector for over 12 years, is
assigned to the Coeur d'Alene office (Tr. 383).
He first began inspecting ASARCO in 1984. There have been
12 quarterly inspections (Tr. 385). He couldn't recall definitely if he inspected the tugger at the 277 raise, 3100 level {Tr.
386, 413). Downs has talked to Joe at his worksite but Joe has
never expressed any concerns about the tugger (Tr. 387, 388). No
citation was ever issued regarding the tugger (Tr. 388, 412; Ex.
C27). Inspector Jim Arnoldi, who accompanied the witness in
February 1985, never suggested a citation should be issued
concerning the tugger {Tr. 388). Generally, at a close out
conference, the parties review the just concluded inspection. At
this conference, on February 21, 1985 Jim Arnoldi announced that
he would be the next inspector. Downs denied that. Douchene
said he wasn't going to have him (Arnoldi) there because he had
too many relatives and he had a conflict of interest {Tr. 390).
He'd just write a letter and get rid of him {Tr. 391, 391). As
they walked out the door Arnoldi said to Douchene that "If you
was a good manager, you wouldn't have this problem". Douchene
also stated to both inspectors that "You may be the law but we'll
see who the law is around here". Downs replied that they were

102$
~

"both the law" (Tr. 390, 414). There could have been some
profanity but that is quite common at a close-out conference (Tr.
392) •
Downs did not consider the statements made by either man at
the close-out conference to be threats (Tr. 394). Jim Arnoldi
never took it as a threat (Tr. 394).
Hecla Mining Company had at one time written to Downs'
subdistrict manager complaining he was "coming down too hard"
(Tr. 393, 394, 440) •
. Downs denies ridiculing 4im Arnoldi In front of ASARCO
employees; nor had he ever done anything to hurt his feelings
(Tr. 394, 395}.
In the inspector's opinion it is not a safe practice for a
nipper to be asleep on the job (Tr. 96). Inspector Downs
observed Joe Arnoldi on one occasion when he thought he was
asleep (Tr. 396, 397>. He never reported this incident to his
supervisors, or anyone, nor did he enter it in his notes.
Don Myers, another MSHA inspector, told Downs that he had
observed Joe sleeping during working hours (Tr. 397, 432, 433}.
He learned this before Joe was fired (Tr. 398).
In cross examination, Downs agreed he had refused to answer
interrogatories filed by compl'ainant in the case (Tr. 399). But
complainant's counsel never sought to talk to him (Tr. 437). The
Solicitor advised Downs that he could talk to ASARCO's attorney
and testify as to any factual matters (Tr. 400, 432; Ex. C25).
Downs considered Andre Douchene a business type friend
rather than a personal friend (Tr. 434). Around May 1985 Downs
gave a written statement to MSHA's special investigator Lopez
(Tr. 405).
In February 1985 Downs was the lead inspector at the ASARCO
mine. The second inspector, as compared with the lead inspector,
could write a citation if he saw a violative condition. Downs
could not recall inspecting a mine with Jim Arnoldi before
February 1985 · (Tr. 410). At that inspection the two inspectors
were together for only one week of the 12 week inspection (Tr.
412).
Andre Douchene may have turned red and gotten angry with Jim
Arnoldi when he said the citation was deserved (Tr. 418). Downs
didn't put Douchene's statements in his official report. He
didn't think either party meant them (Tr. 418).
Downs didn't know if Douchene ever wrote a letter about Jim
Arnoldi. Downs believed that mine managers can influence the
assignment of mine inspectors (Tr. 420). Downs has no family
working at the Coeur unit (Tr. 421).

1029

Jim Arnoldi told Downs that Joe had been fired (Tr. 422).
He didn't suggest at that time that Douchene was carrying out his
threats ·although it occurred 26 days later (Tr. 422}.
In March 1985 the MSHA hoist inspection team consisted of
Jim Arnoldi, Moose Guttramsen and Arnold Peterson (Tr. 423, 424).
Downs was aware that Jim Arnoldi called Andre Douchene to
schedule a hoi~t inspection on March 19, 1985 (Tr. 425, 462).
Downs was also aware that Joe got a phone call to come up to the
mine (Tr. 426).
Witness Downs didn't believe that MSHA's manual suggested
that it would be a conflict of interest to inspect a mine where
an inspector's relatives worked. Nor was there a conflict to
inspect a mine owned by a company by whom the inspector had been
formerly employed (Tr. 430).
The Coeur unit has had two fatalities: one occurred when the
mine was under construction (Tr. 439). The witness discussed the
unit in relation to the'national average (Tr. 439, 440).
MIKE LEE, 30 years of age and experienced in mining, served
as ASARCO's mine superintendent (Tr. 442, 443, 499, 500). His
duties include safety and production (Tr. 444). He usually
averages five hours underground each day. There are approximately 150 employees at the Coeur unit (Tr. 445). The mine has
17 stopes plus three development crews and 40 contract miners.
When Lee came to the Coeur mine Joe Arnoldi was swamping,
motoring and nipping. Occasionally he did some fill-in mining.
Lee would see Joe about once a week when inspecting the work
areas (Tr. 446). A nipper would probably run the tugger all day
long (Tr. 448). If the nipper is sleeping the stope miners are
not getting the service they need (Tr. 448, 449).
Employees at ASARCO receive warning slips for absenteeism,
breaking safety rules underground, and unsatisfactory work (Tr.
449). The first such warning is usually verbal; warning slips
follow. Whether a worker is terminated depends on his offense
(Tr. 450).
Lee has personally disciplined Joe with warnings and notices
about his job performance (Tr. 451).
On August 16, 1984 Joe was given a warning slip and two days
off for excessive absenteeism (Tr. 451, Ex. F, G, H).
He was
warned to straighten up his absenteeism problem (Tr. 452). Joe's
work performance was "pretty poor"
(Tr. 453, 454). Fellow
employees also complained and stated they didn't want to work
with him.
Joe did not bring his allergy condition to Lee's attention
(Tr. 454). Company policy requires a worker to report that he
will be off prior to the start of any shift. When returning he

1030

should have a doctor's release (Tr. 454, 455). Lee doesn't look
through employees' medical records (Tr. 456). The absenteeism
policy is posted as well as discussed with the employees (Tr.
456). If the worker misses two shifts within 30 days he would
receive a warning notice (Tr. 457).
On March 18, 1985, in the course of their regular inspection, Lee and Bill Arthur went to the top of the 277 raise on
the 3100 level (Tr. 458, 459). Lee was in the lead and he had to
walk around a motor parked on the station side. As he moved past
the drift post he observed Joe Arnoldi leaning back on holey
boards stalked in the form of a chair. His closed eyes, deep
breathing, open mouth and perfectly still position caused Lee to
conclude that Joe was sleeping. Lee went within a couple of feet
and he woke him up by flashing his light in his eyes. Joe sat
up with a start (Tr. 459, 460, 501, 502). Lee said something
like "It's a long time from lunch time to be sleeping." Joe replied "Yeah, I know that" CTr. 460). Lee then told Joe not to do
anything while he checked the crew below. He would then return
to talk. Lee didn't tell the miners about Joe because he didn't
think it was their concern. At the time they were pulling a sand
line and that didn't require any materials (Tr. 462).
When they climbed back out Lee told Arthur he had caught Joe
sleeping. He asked Arthur if he was justified in "taking him
out. 11 Arthur concurred; Joe would not necessarily be fired but
he could be in very serious trouble (Tr. 463, 464). As Lee and
Joe discussed the matter Joe acknowledged that he wasn't supposed
to be sleeping. Further, he had been caught sleeping before.
Lee then told Joe he had no choice-· except to take him out of the
mine.
Lee then escorted Joe to his office (Tr. 464, 465, 467).
Lee had Joe sit in his off ice while he talked to Andre Douchene
(Tr. 465). Lee and Douchene discussed Joe's work record,
discipline, efforts at rehabilitation, etc. Lee strongly
recommended that Joe be terminated. Douchene disagreed; he
thought it best to put him on indefinite suspension and,mull it
over to make sure they were making the right decision (Tr. 465).
Lee then told Joe he was suspended. He was also told he may or
may not get his job back. Lee also indicated he'd contact him so
he wouldn't have to come to the mine every day. Joe said to
contact him through his father (Tr. 466-467).
Lee's notes reflect that he didn't care if Joe slept on his
lunch break Cll:OO a.m. to·ll:30 a.m.) but he. was sleeping at
7: 45 a .m. (Tr. 466, 467). A lot of miners had complained that
Joe was always sleeping (Tr. 557, 558).
At the end of the shift Lee and Douchene again discussed the
situation and decided they'd sleep on it (Tr. 468, 470).

1031

On October 14, 1983 Ron Maehl was the Coeur mine superintendent. His diary on that date reflects that Joe was suspended
five days for sleeping underground <Tr. 468, 469, 582, 583; Ex.
I).
The diary also indicated that on August 11, 1983 Joe was
advised that all of his grace periods were over (Tr. 469, 470;
Ex. J) •
The following day, March 19 at mid-morning, Lee and Douchene
discussed Joe's past record and related matters. Douchene
decided he should be terminated (Tr. 470, 471). The decision to
fire him had nothing to do with the fact that his father was an
MSHA inspector (Tr. 472).
Lee was not aware of Joe's contention that some of the
warning slips he had received were not deserved (Tr. 471). On
Tuesday afternoon Lee contacted Inspector Arnoldi and asked him
to have Joe come into the office. Inspector Arnoldi replied "I'm
going to inspect your XXXX hoist today" (Tr. 472). The inspection did not come about. Joe appeared at the mine on the
morning of the 20th (Tr. 473). At that time Lee and Joe reviewed
the situation. Lee then advised him he was terminated immediately. At the conference Joe did not claim any of the work notices
were not justified. Three or four times after that he came up
rustling (Tr. 474). Several times he talked to Lee and other
times with Douchene (Tr. 475). Lee filled out a termination
statement for Joe writing on it "absolutely no rebire" (Tr. 476;
Ex. C24J. The notation was Lee's personal feelings because Joe
was such a poor worker. Lee didn't tell Joe to rustle but what
he wrote is not inconsistent with a suggestion to rustle because
they are obliged to state that the same opportunities exist for
everyone (Tr. 477). Lee has made similar notations on five to
ten termination notices (Tr. 477). The company has not rehired
anyone when such a notation was made.
Lee knew the company contested Joe's claim for unemployment
compensation benefits filed with the State of Idaho (Tr. 478).
Lee didn't think the company would rehire Joe in view of that
claim (Tr. 479).
With his memory refreshed by hearing prior witnesses Lee
restated the events at the close-out conference of February 21st
(Tr. 479, 480, 491, 492-494, 498).
[The witness, in his deposition, stated he did not remember the details at the conference
(Tr. 491-496)]. However, he testified that at the conference
Inspector Arnoldi said he was going to inspect the plant and shut
it down. Douchene said Arnoldi had too much family working there.
Lee consiqered this a typical close-out conference. He thought
the statements were made in jest; neither man was threatening the
other (Tr. 482).
The inspection in February 1985 and the close-out conference
of February 21 were not factors in the decision to terminate Joe
Arnoldi (Tr. 482).

1032

Lee had never discussed with Joe the height of the tugger or
its proximately to the tracks. He could not remember Joe making
any complaint at the safety meetings (Tr. 483).
It is unsafe for a nipper to sleep on the job (Tr. 484,
485).
At ASARCO the shift boss has authority to give a worker two
days off (Tr. 486). Any leave in excess of two days had to be
approved by Lee or Douchene (Tr. 486).
Joe would not necessariiy be advised when the trains were to
operate past his work station (Tr~ 504).
The Coeur policy guide states the company absenteeism policy
(Tr. 508; Ex. C29). The policy requires that an absence be excused (Tr. 509-513).
Lee's diary entry of December 13, 1984 reflects an incident
involving safety. The .individuals involved were Arthur Lee and
Buss Lomas (Tr. 523, 524; Ex. C30).
In the absence of Douchene, Lee could probably fire someone
at the mine.
If Douchene was gone he would check with Fred
Owsley (Tr. 536).
On March 22, 1985 Lee wrote a draft of ASARCO's response to
Joe's application for unemployment benefits (Tr. 538, 539; Ex.
C32). The report states that Bill Arthur as well as Lee observed
Joe sleeping at the top of the 277 raise (Tr. 539). Apparently
Arthur had not observed Joe sleeping (Tr. 540). Lee had not
checked the records of other employees to see how previous
sleeping incidents had been handled (Tr. 541}.
On October 9, 1983 Coeur employee Paul Stull was given a
warning slip for sleeping (Tr. 541; Ex. C33). R.J. Maehl was the
superintendent at that time (Tr. 542). The slip said he had
already been warned once (Tr. 543; Ex. C34). Stull had been
warned verbally by Maehl, Douchene, Korst (general mine foreman)
and Charlie Castell (shift boss) on separate occasions previously
(Tr. 543, 544). It was explained to Stull that the next warning
would mean termination (Tr. 544).
Lee carefully tracks absenteeism at the Coeur unit (Tr. 545).
Stull worked 21 weeks at the mine but his record does not
indicate any disciplinary action (Tr. 547>. In 21 weeks the area
supervisors found it necessary to warn Stull about sleeping four
times and Ron Maehl caught him sleeping a fifth time (Tr. 547}.
The termination slip for Stull says Maehl would want him
re-employed. The reason he left was to attend school (Tr. 548);
Ex. C36>. Ron Maehl may have just suspected Stull was sleeping
(Tr. 549). It is not fair to compare Paul Stull's record with
Joe Arnoldi's record. Arnoldi's record is worse (Tr. 587).
Joe was given a warning slip on April 18, 1983 for failing
to follow orders and unsatisfactory work (Tr. 551). This was
1033

given to Joe for his failure to follow an order to work in an
unsafe'place (Tr. 551).
An additional warning slip was issued
for carryin·g explosives on top of a battery locomotive CTr. 551).
The hauling of a chain saw and motor was also a safety rule
violation (Tr. 552).
Joe was issued only one unsatisfactory work and failure to
follow orders during this time at the Coeur. However, Lee had
general knowledge that Joe was not a good worker CTr •. 552, 553) •
Joe Arnoldi was treated differently than other employees because
he was given a second chance (Tr. 587).
Corey Weikel has not been fired by ASARCO although he had a
number of warning slips from January 1983 to the end of March
1985 (Tr. 558, 559). On August 11, 1983 Corey, who eventually
turned into a good hand, was suspended for five days. He was
also told that if he abused the company policy he would be
terminated (Tr. 559, 590, 571). Two weeks later he was back on
the job. Maehl again talked to him about his overall work
attitude, attendance record and other matters.
Corey received a warning slip and two days off on June 22,
1983 for absenteeism (Tr. 5611 Ex. C38).
On August 11, 1983 Corey received a warning slip for tearing
out an air door (Tr. 589, 652).
It is not valid to compare Corey's work record with Joe
Arnoldi's record. Corey was a good hard worker CTr. 589>.
On June 22, 1983 Ron Maehl's diary reflects he came on Randy
Arthur on a bedboard and in a bewildered state. When asked what
he was doing he replied he was "just sitting": Maehl said Randy
Arthur had no "gippo" attitude, suggesting that he lacked get up
and go (Tr. 563, 564). The diary entry further states that he
cannot or will not work unless prompted (Tr. 564).
On August 10, 1983 Randy Arthur received a warning slip for
failing to follow orders (Tr. 564).
On December 23, 1983 another warning slip was issued to
Randy Arthur for riding a timber truck (Tr. 564, 565).
Arthur
was not terminated (Tr. 565). At one point Ron Maehl removed
Arthur from his contract job. This move would reduce his wages
from $150 to $250 a day to $95 to $100 a day. Somewhere in 1984
he bid back into the stope job (Tr. 566).
If Lee had caught
Randy· Arthur sleeping, coupled with everything else, he would
have fired him (Tr. 566).
Arthur had a serious diabetic problem
(Tr. 567). It is not valid to compare Joe Arnoldi's record to
Randy Arthur (Tr. 590).
Tom Benson received a warning slip for being absent on July
22, 1983. On August 31, 1983, Maehl's diary states that Benson
had a "sluggish attitude" at work. On October 31, 1983 Maehl

1034

told Benson he would be fired if his work performance didn't
improve (Tr •. 568). On November 22, 1983 Lee issued a verbal
warning to Benson for tardiness (Tr. 568, 569). A discussion
about tardiness followed on December 27, 1983 because Benson's
conduct of arriving "at the whistle" was barely acceptable. On
February 8, 1984 Lee gave him an unexcused absence. He had not
called in (Tr. 569). On September 26, 1984 Benson was promoted
to stope miner (Tr. 569, 570). Benson eventually became a pretty
good worker (Tr. 570, 590).
Ron Maehl threatened employees a lot (Tr. 570). In Lee's
view sleeping is a complete and blatant disregard of the employer.
It further shows a total lack of responsibility on the part of
the employee (Tr. 571).
When Ron Maehl caught an employee sleeping he would sign off
on a termination slip indicating that the man could be a rehired
(Tr. 573).
James Leischner received four warning slips in one year. On
January 19, 1983 he also received a two day suspension for
absenteeism. On March 21, 1983 a warning slip was issued for
leaving powder and primers in a raise. On July 14, 1983 he
received a warning slip for hauling explosives on a motor (Tr.
574). Following this, on December 30, 1983 there was a warning
slip for hoisting powder and primers (Tr. 574, 575). Leischner
is still working there. The company does not have a set policy
that a certain number of warning··slips mandates termination (Tr.
575) •
Lee's diary of May 30, 1985 mentions Joy Neal and L. Lyle
(Tr. 576). Lee had observed Joy sitting on the station smoking a
cigarette. She.was told she was paid to work, not sit (Tr. 576).
She later quit working at the mine (Tr. 577).
For the period Commission Judge Kennedy ruled as relevant
(January 1, 1983 to March 31, 1985) ASARCO issued 94 warning
slips (Tr. 578). During the same period Delmar Howard, Larry
Nellsch, Earl Crabtree and Bob Elisoff, were fired by ASARCO.
Elisoff was later rehired .(Tr. 578, 579 > •
Delmar Howard and Larry Nellsch were in jail and unavailable
for work (Tr. 580; Ex. P,Q). Both of these men received fewer
warning notices than Arnoldi. Both were terminated for
absenteeism. Lee would rehire them (Tr. 59.3-596 > • The witness
discusseed Larry Nellsch's warning slips (Tr. 594, 595).
Earl Crabtree was fired for absenteeism. Bob Elisoff was
fired for various reasons (Tr. 580). Elisoff rustled for a long
period of time and was rehired (Tr. 581).
Exhibit C-38 is a fair representation of the warning slips
that are generally issued for the reasons stated (Tr. 582).

1035

It is important, for various reasons, for the company to
know ahead of time whether a worker·will be absent from work (Tr.·
583).
Occasionally a warning slip is not signed by the issuing
super.visor; nor is it n·ecessary for the employee to sign the slip
(Tr. 583, 584).
In 1981, at the Galena mine, Lee fired Jim Reed for
sleeping; in addition, he fired two workers in July 1986 for the
same offense. None of the three workers had prior warning
notices (Tr. 587).
Even though an "absolutely no rehire" notation is written on
a termination slip a man can be rehired if he can show the
company that he has changed (Tr. 591).
Workers were hired at the Coeur unit after Joe Arnoldi was
terminated (Tr. 599).
ANDRE DOUCHENE is currently employed by Round Mountain Gold
Corporation. Previously he worked for ASARCO starting as an
engineer and attaining the position of manager of the Coeur unit
(Tr. 602}. As the unit manager he is responsible for the entire
mine. He reported to Fred Owsley, general manager for the
division (Tr. 603). Douchene has the final authority in hiring
and fi~ing employees CTr. 603, 604). He did not normally become
involved in disciplining unless an employee claimed he was
treated unfairly (Tr. 604).
Joe Arnoldi was employed at the Coeur before Douchene
arrived. At some point Douchene learned that Joe's father was an
MSHA inspector (Tr. 604, 605). Inspector Arnoldi abated some
citations but he was prinicipally the hoist inspector until
February 1985. At that time he became as part of the inspection
team CTr. 605).
Inspector Arnoldi had not written a citation while Douchene
was at the Coeur. MSHA inspected the mine on a quarterly basis.
Douchene would see Joe about three days out of each week. Joe's
duties as a nipper included supplying the miners in the stope
with materials. Nippers are there for efficiency as well as
safety (Tr. 606, 607, 642). Joe and Douchene never discussed the
tugger nor did Joe make any safety complaints about the tugger.
Other workers also operated the tugger at the 277 raise, 3100
level (Tr. 607, 609). However, Joe did complain and he was upset
about an incident when he was hit on the wrist when a rock came
down the raise. The incident was brought up at a safety meeting
and workers were warned about letting material fall down the
shaft CTr. 608). Douchene attends about half of the six separate
monthly safety meetings. Except for the one instance at no time
did he hear Joe express any safety concerns CTr. 609). Joe was
not a member of the safety committee.

1036

Douchene was the elected miners' representative at the Coeur
unit. He was concerned this could be a conflict of interest but
no conflict ever arose. If a conflici had occurred Douchene
would have stepped down as the miners' representative (Tr. 610,
641, 642). The miners could always vote him out of the position
(Tr. 611). He was never really comfortable with such an
appearance of impropriety (Tr. 652, 656). On one occasion as the
miner's representative Douchene signed a variance document
concerning a manway opening and raise (Tr. 652, 653).
Douchene recalled that Lee came into the off ice and said
he'd caught Joe .sleeping underground (Tr. 611). This was within
an hour after the crew had go~e underground (Tr. 612). Douchene
didn't talk to Joe that morning <in his deposition he stated
otherwise).
Lee and Douchene discussed Joe's past record for a minute or
two (Tr. 612, 668). Both men knew Joe had received a lot of
warning slips and had been disciplined for sleeping. Joe was
then suspended without pay pending further investigation. Lee
and Douchene discussed Joe later that day, after Douchene had
obtained his file folder· CTr. 613, 673, 674). No decision was
made at that time. The following day Lee and Douchene went over
Joe's record. They decided they had done all they could to try
to get Joe to become a good employee. He was discharged (Tr.
615). Specifically they considered the fact that he'd been
caught sleeping twice, his past record, and his absenteeism. Apparently their talks had not "~unk in" (Tr. 615).
Concerning the first sleeping incident Ron Maehl ha~ warited
to discharge Joe but Douchene refused because he hadn't brought
Joe out from underground. Ron gave him five days off. Later
that week Joe returned and stated he'd learned his lesson. He
also objected to the way they woke him up. Apparently Ron had
pitched a small pebble at his chest. Douchene agreed the five
day suspension was too severe so he let him come back the following day. But the three days of discipline stood (Tr. 616).
About four or five days after he was fired in March 1985 Joe
came back a.nd said he thought he'd learned his lesson. Douchene
disagreed. He further denied that' they had blackballed him (Tr.
617, 618). Joe asked if he could rustle and Douchene replied
affirmatively. There were three or four meetings. Joe would ask
if a job was available and Douchene would state there was none.
If Joe had convinced Douchene that he had in fact changed then he
would have rehired him despite the "no rehire" notation on the
termination notice (Tr. 618, 619). There was no further
conversation with Joe aa to why he was terminated (Tr. 619).
Joe never advised Douchene that his prior warning notices
were not justified (Tr. 619).
Douchene participated in the close-out conference in
February 1985 but not the inspection. Three citations were dis-

1037

cussed at the conference. One loose ground citation was designed
as s & ·s (Tr. 620). The citation involved Magoon and Myles (Tr.
621). The .previous day Douchene had observed the slab and he
told the two men to bar it down. When the citation followed
Douchene called the men into Lee's office and asked them if they
knew the nature of insubordination. Discussion followed and
Myles explained that Bill Arthur had told them that it wasn't
necessary to further bar down the slab (Tr. 621). Subsequently,
Douchene told Arthur that he (Arthur) was wrong about. the slab.
Douchene frequently argued about citations at the close-out
conferences (T~. 622). After the February 1985 conference was
over Douchene asked Downs who was to be the new inspector. Jim
Arnoldi said he was to be the new inspector. Douchene didn't
take him seriously. Douchene replied, with profanity, that he
had a lot of family up there and would be a conflict of interest
for him to be there (Tr. 623, 624). It's possible Douchene could
have said something like "You may be the law, but we'll see who
the law is around here~ (Tr. 659). Douchene mentioned writing a
letter. If Arnoldi had become inspector he would have talked to
Larry Weberg (Arnoldi's supervisor) about it (Tr. 624, 659). He
didn't remember the exact sentence but he agreed the gist was
"You've got too much family working here to XXXX around too much"
(Tro 659, 660). By writing a letter Douchene meant that the
company could file an official complaint. He did not then intend
to do that.
As they were going out the door Inspector Arnoldi made a
statement about poor management and the company wouldn't have to
worry about safety inspectors if it had better management.
Douchene did not take anything Arnoldi said as a threat (Tr.
625).

Douchene was probably grinning when he made the statements.
Jim Arnoldi was also grinning; this was his typical badgering and
the give and take at a close-out conference (Tr. 627).
Inspector Arnoldi has eight to ten relatives at the Coeur,
about ten percent o~ the work force (Tr. 626). None of the
Arnoldi relatives at the Coeur unit are on the management level
(Tr. 709).
When the decision to terminate Joe was made a month later,
the close-out conference was not a factor. Douchene and Lee, in
deciding to terminate Joe, did not discuss the fact that his
father was an MSHA inspector (Tr. 627).
On March 19, 1985, Inspector Arnoldi was the only MSHA hoist
inspector. On that day he told Douchene that he was coming to
inspect the hoist and "straighten him out". The decision had
already been made to terminate Joe but his father was not told
about it (Tr. 628, 667). In deciding to terminate Joe, Douchene
did not look at anyone else's record and such a comparison would
not be valid (Tr. 629). Joe was the only one caught sleeping
twice. Douchene and Lee had talked to Joe and tried to get him
to become a good employee (Tr. 630).
1038

Paul Stull was a temporary employee hired by Fred Owsley
(Tr. 631). Douchene didn't catch him sleeping nor did he
specifically warn him about sleeping (Tr. 632, 633; Ex. C34}.
It is not valid to compare Joe Arnoldi with Paul Stull
because Joe was a permanent employee. Stull didn't make a bed,
lay down and go to sleep (Tr. 633).
Exhibit C3 sets forth MSHA's conflict of interest standards.
In Douchene's opinion there was a conflict of interest because of
Inspector Jim Arnoldi's family at the mine (Tr. 634, 639, 644).
He could be influenced in either direction, either too harsh or
overlooking matters. Joe Arnoldi was hired by Carole Ward at his
father's request (Tr. 635, 644, 645, 648}. Jim Arnoldi came to
the Coeur unit quite a bit unofficially. At times he asked about
Joe and inquired why he hadn't been put to mining (Tr. 635).
Douchene indicated Joe didn't have a good enough work record (Tr.
635, 636}.
Douchene was familar with the contest procedures.
Inspector Downs' citations were justified (Tr. 643).

A lot of

About two weeks after the February 1985 inspection Larry
Weberg, Jim Arnoldi's supervisor, came to the Coeur. When asked
if he had a problem-with Jim Arnoldi inspecting the mine Douchene
indicated he had a lot of family there (Tr. 650, 657). Douchene
did not write a letter to MSH.A (Tr. 658).
In 1984 the Coeur unit reached a high of 11 citations (Tr.
664} •
Douchene has never fired anyone "on the spot" without due
consideration (Tr. 678).
When he spoke to Inspector Arnoldi on March 19 he did not
mention that they were considering terminating Joe (Tr. 678,
679).
"The decision to terminate Joe was made before Inspector
Arnoldi called to schedule the hoist inspection (Tr. 679). The
decision had been made the morning of the 19th and the paper
work was already in process (Tr. 680}. It is not company policy
to notify relatives of an employee's position with the company
(Tr. 680).
There were four additional hourly employees terminated
between January 1, 1983 and March 31, 1985 (Tr. 683, 684). Larry
Nellsch and Delmar Howard were terminated because they were
absent from work (Tr. 684). Bob Elisoff and Earl Crabtree were
terminated for excessive absenteeism (Tr. 685; Ex. C42}. During
the relevant period no employee was fired except for absenteeism.
Each individual is handled as an individual (Tr. 686). Crabtree
started with ASARCO in 1967. He was fired.
He was again
employed at the Galena mine from April 23, 1969 to August 21,

1039

1973 (Tr. 6&9, 690). He was again fired.
Subsequently, he was
hired at the Coeur on August 7, 1984 and fired in October 1984.
Crabtree received ten slips for absenteeism (Tr. 690). Joe
Arnoldi did not have as many slips for absences as did Crabtree
(Tr. 691). The company has a printed policy concerning absences
(Tr. 692; Ex. C29). Crabtree was discharged for four unexcused
absences in a 60 day period (Tr. 694). The last sleeping
incident involving Joe Arnoldi was "the straw that broke the
camel's back" so far as Joe's discharge was concerned (Tr. 695).
Elisoff was fired on April 7, 1983 by Ron Maehl and Buss
Lomas (Tr. 697). He was rehired when he convinced Douchene that
he had changed. He rustled every day for maybe two months (Tr.
698, 699). After he was rehired Elisoff received some warning
slips, including one for unsatisfactory work and one for
excessive absenteeism (Tr. 702, 703).
Elisoff is still working at the Coeur (Tr. 703).
The decision to terminate Joe was based on his work record
and the whole business (Tr. 704). During the relevant period 22
employees other than Joe received warning slips for unsatisfactory work, failure to follow orders, and non-safety related
conduct. The 22 remain employed by ASARCO (Tr. 704). Paul
Stull, the other employee allegedly caught sleeping, did not
receive disciplinary days off and was not terminated (Tr. 705).
Douchene wasn't sure if Stull was sleeping or not but he warned
him for sitting down on the job (Tr. 705).
The disciplinary system at Coeur includes verbal and written
warnings (Tr. 706). The lowest level is a verbal warning and the
highest level is termination (Tr. 707). Douchene didn't know if
Joe rustled every day (Tr. 700). After March 20, 1985 Joe told
Douchene that he wanted his job back (Tr. 701). Douchene was
never convinced that Joe was serious about getting his job back
(Tr. 702).
Evaluation of the Evidence
In view of the Commission's rulings concerning section
105(c) it is necessary to initially determine whether complainant
was engaged in a protected activity and whether respondent took
adverse action against him for such activity.
It is clear that certain activities in which complainant
engaged were protected under the Act. He complained about the
positioning of the tugger and its proximity to the train track.
However, there is no evidence that responden~ took any adverse
action for such complaints. MSHA Inspector Jim Arnoldi never
inspected the tugger. He merely told Joe to discuss it with Bill
Arthur. In turn, Arthur did not think it was a problem. MSHA
Inspector Downs inspected complainant's work place but no
complaints were made to him about the tugger.

1040

The complaints about the position of the swamper on the
train and the trip lights were protected activities but again no
adverse action was taken by the company.
His safety complaints
when he was struck by rocks falling down the raise were protected.
But this occurred April 27, 1983, almost two years before he was
.discharged. ~o adverse action resulted from that incident and,
in fact, it was discussed at a safety meeting and the miners were
instructed to avoid such hazards.
The pivotal issue focuses on whether complainant was
sleeping on March 18, 1985. A conflict in the evidence exists on
this point.
On that particular date Lee and Arthur were on their rounds.
Lee, who was in the lead, approached complainant and saw him
leaning on a stack of boards. His eyes were closed and he was
breathing deeply with his mouth open. He was perfectly still.
Lee woke him. Complainant did not deny that he was sleeping.
In
fact, complainant himself concedes that he didn't tell Lee or
Douchene that he wasn't sleeping.
Subsequently, on March 21, complainant filed for unemployment benefits with the State of Idaho.
In his printing on the
form he related the events of March 18 stating in part that he
was "waiting fore (sic) my crew to start work I fell asleep olny
(sic) for five min (sic) and ••• Mike Lee woke me up" (Exhibit
RA).
At the hearing complainant seeks to explain the State of
Idaho statement. He states he couldn't write well. He wanted to
state on the form that he was not sleeping. He also wanted t6
put down that he was discriminated against because of his
father's MSHA inspections. Instead, he put down respondent's
~easons why he was fired (Tr. 183, 200-203; Ex. RA).
Contrary to complainant's assertions I conclude that the
statements he made to the State of Idaho were accurate and not
false, as he himself conceded at the hearing (Tr. 231, 233).
His claim that he lacks writing skills is not persuasive. A
review of the hand printed exhibit CEx. RA), in my view,
accurately set forth complainant's position. Although there are
some spelling errors in the text the expression is clear and
reasonably articulate.
Sleeping is not a protected activity; accordingly, it
follows that respondent did not discriminate against complainant.
If complainant had established that he was terminated in
part because of protected activity, I would nevertheless conclude
that respondent was motivated by complainant's unprotected
activity and would have taken the adverse action for such unprotected activities alone, i.e., for twice falling asleep on the
job. Therefore, I conclude that complainant has not established
that respondent discharged or otherwise discriminated against him
in violation of section 105(c) of the Act.
1041

Arnoldi's post-trial brief asserts that he has established
his prima facie case. He particularly relies on the fact that a
miner is entitled to have federal mine inspectors conduct their
inspection free of any retaliation, citing Mackey v. Consolidation Coal Company, 7 FMSHRC 977, 978 (1985). Specifically
complainant refers to the close-out conference of February 21,
1985. At the· conference it is essentially uncontroverted that
Andre Douchene, the unit manager, made the statements set forth
in the evidence. However, I find from the credible e.vidence that
some,profanity as well as "give and take" regularly occurs at the
close-out conferences at respondent's mine. Further, Douchene
didn't take Jim Arnoldi's statements as a threat (Tr. 625, 627).
Inspector Downs did not consider any of the statments to be
threats (Tr. 394). Inspector Arnoldi's written statement of May
15th indicates that he also thought Douchene's statements were
made in jest (Tr. 131, 132; Ex. C4). Mike Lee likewise thought
the statements were made in jest (Tr. 482). Kim Bradshaw
likewise concurs in this view (Tr. 254).
The evaluation made by these four principals contemporaneously with the event constitutes persuasive evidence that
respondent did not intend to discriminate against complainant.
Complainant further argues that the evidence supports an
inference that he was fired in retaliation for safety complaints
or based on the belief that he was an MSHA informant.
I disagree. such a view of the evidence is speculative.
Even assuming that complainant was an informant there is no
evidence that respondent took any adverse action for such
activity.
Complainant also argues that Douchene felt MSHA Inspector
Arnoldi should not be assigned to the Coeur unit because of the
number of relatives at the mine; further, it is plausible to
believe that Douchene feared the quality of information that
could flow from relatives to an MSHA inspector.
I reject this argument. Plausibility cannot establish a
violation of the discrimination section. I agree that Commission
precedent holds that adverse action against a miner making safety
complaints to MSHA violates the Act. This is so even though
management is wrong in its belief that the miner made such
complaints as in Moses v. Whitley Development Company, 4 FMSHRC
1475 (1982). In the instant case it is true that complainant
claims to have been an MSHA informant.
This view arises from the incident when Joe Arnoldi spoke to
his father about the two miners, Magoon and Myles. The two
miners had been threatened with termination for failing to bar
down a loose slab.
I do not see how this incident establishes discrimination,
or an intent to discriminate, against Joe Arnoldi. Even if one

1042

assumes ASARCO knew of complainant's statement there is no
persuasive evidence that the company took any adverse action
against him.· The Magoon/Myles incident started the day before
the MSHA inspection. On that day Douchene directed the two men
to bar down a loose slab. They apparently began to do so and
their supervisor (William Arthur) told them to terminate their
activity. The following day an MSHA citation was issued for the
same slab. Douchene then called Magoon and Myles into his off ice.
He asked them if they knew the nature of insubordination.
All of these events had occurred before complainant made any
statments to his father. Complainant relates that "after the
shift was over I talked to Bob Magoon and Bob told him that they
were fired and he [Andre Douchene] was mad because he got wrote
up for something that he thought he shouldn't have gotten wrote
up for " CTr • 17 2 ) •
In sum, the Magoon/Myles incident does not establish that
respondent discriminated against complainant.
Complainant further contends that the company admits it was
motivated to terminate him by virtue of his work record as a
whole, citing the transcript at 614. Complainant then argues
that his work record includes a refusal to work in an unsafe
place. Further, his severe allergy condition rendered it unsafe
for him to work.
Complainant has overemphasJzed a portion of the evidence.
The person who made the ultimate decision to fire complainant was
Andre Oouchene with Mike Lee's strong recommendation. Douchene
testified that he and Lee discussed complainant's warning slips
and they both knew he had been disciplined for sleeping. The
following day Lee and Douchene went over complainant's record.
They decided they had done all they could to try to get
complainant to become a good employee. Specifically, they
considered his adverse work record which was documented. He'd
been caught eleeping twice, and he had received nume~ous warning
slips (Tr. 615).
Complainant's additional contention is that his allergies
,caused him to believe, in good faith, that it would.be hazardous
to his health for him to work in the mine. In support of his
position complainant Atkins v. Cyprus Mines Corporation, 8 FMSHRC
460, 474 (1986).
These arguments are misdirected. As a threshold matter
complainant did not refuse to work because of his allergy
problems. The cited case is not controlling.
Complainant also argues that respondent refused to rehire
complainant in retaliation for his protected activities and for
the filing of his discrimination complaint.

1043

The evidence shows that Douchene and Lee told complainant
that he could rustle in an effort· to get his job back. He did so:
Complainant testified he was treated fairly well, except towards
the end of the rustling period.
I reject complainant's argument. He was discharged because
he was sleeping on the job, an unprotected activity. On this
record the filing of his discrimination complaint played no part
in the refusal to rehire him. The reference to the hiring and
firing of Robert A. Elisoff fails to establish that respondent
discriminated against complainant. This is so because
complainant was discharged for an unprotected activity. Respondent is not obliged to rehire him. But it can permit him to
rustle in an effort to be re-employed.
Complainant's post-trial brief also attacks the credibility
of Lee, Downs and Douchene. While there are some discrepancies
in respondent's evidence (as well as complainant's evidence) I
generally find respondent's evidence to be credible.
Complainant argues his overall work record did not merit his
discharge and he was treated less favorably than others.
The function of the Commission is to determine whether
discrimination occurred in violation of section lOSCc). Disparities in discipline can be strong evidence of discriminatory
motives. But it is not the function of the Commission to generally weigh a miner's work record if no protected activity is
established.
For the foregoing reasons the complaint filed herein should
be dismissed.
Briefs
The parties have filed detailed briefs which have been most
helpful in analyziQg the record and defining the issues. I have
reviewed and considered these excellent briefs. However, to.the
extent they are inconsistent with this decision, they are rejected.
Conclusions of Law
Based on the entire record and the factual findings made in
this decision the following conclusions of law are entered:

1.

The Commission has jurisdiction to decide this case.

2. Complainant did not prove that he was discriminated
against in violation of Section 105(c).
3. Respondent did not discriminate against complainant in
violation of the Act.

1044

Based on the foregoing findings of fact and conclusions of
law I enter the following:
ORDER
The complaint herein is dismissed.

Law Judge
Distribution:
Nathan S. Bergerbest, Esq., Cotten, Day, Doyle, 1899 L Street,
NW, Washington, D.C. 20036 (Certified Mail)
Fred M. Gibler, Esq., Evans, Keane, Koontz, Boyd, Ripley, 111
Main Street, P.O. Box 659, Kellogg, ID 83837-0659
(Certified
Mail)

/bls

1045

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

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

JUN 3 1987

CIVIL PENALTY PROCEEDING

.

v.
VINNELL MINING AND MINERALS
CORPORATION,
Respondent

Docket No. WEST 86-260-M
A.C. No. 04-03008-05511
Oro Grande Mine

:

DECISION APPROVING SETTLEMENT
Before:

Judge Cetti
Statement of the Case

This is a civil penalty proceeding filed by the petitioner
against the respondent pursuant ot Section llOCa) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), seeking
civil penalty assessments in the amount of $241 for four alleged
violations of certain mandatory safety standards found in Title
30, Code of Federal Regulations.
The parties have submitted a motion pursuant to Commission
Rule 30, 29 C.F.R. § 2700.30, seeking approval of a settlement of
the case. The citations, initial assessments; and the proposed
settlement amounts are as follows:
Citation No.
2364566
2364567
2671590
2671591

Date
12/11/84
12/ll/84
7/2/86
7/2/86

CFR Title 30
Section
Assessment
56. 5001A/5
$ 20.00
56. 5001A/5
105.00
56.14001
58.00
56.11001
58.00
Totals
$241.00

Settlement
$ 20.00
105.00
30.00
20.00
$175.00

Discussion
In support of the proposed settlement disposition of this
case, the petitioner has submitted information pertaining to the
six statutory civil penalty criteria found in Section llOCi) of
the Act.
In addition, the petitioner has submitted a discussion
and disclosure as to the facts and circumstances surrounding the
issuance of the citations in question, and a reasonable justif ication for the reduction of two of the original proposed civil
penalty assessments.

1046

Conclusion
After.careful review and consideration of the pleadings,
arguments, and submissions in support of the motion to approve
the proposed settlement of this case, I conclude and find that
the proposed settlement disposition is reasonable, appropriate,
and in the public interest. Accordingly, pursuant to 29 C.F.R.
§ 2700.30, the motion is GRANTED, and the settlement IS ~PPROVED.
ORDER
Respondent IS ORDERED to pay civil penalties in the
settlement amounts shown above totaling $175.00 in satisfaction
of the citations in question within thirty (30) days of the date
of this decision and order, and upon receipt of payment by the
petitioner, this proceeding is dismissed.

~~

F. Cetti
strative Law Judge
Distribution:

Leroy Smith, Esq., Office of the Solicitor, U.S. Department of
Labor, 3247 Federal Building, 300 N. Los Angeles Street, Los
~ngeles, CA
90012 (Certified Mail)
Mr. D. McRae, Vinnell Mining & Minerals Corporation, 3380 Flair
Drive, Suite 236, El Monte, CA 91731 (Certified Mail)
/bls

1047

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

JUN 5 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
PEABODY COAL COMPANY,
Respondent

.
..
..
.
.
..
..

CIVIL PENALTY PROCEEDING
Docket No. KENT 86-101
A.C. No. 15-02705-03587
Camp No. 2 Mine

DECISION
Appearances:

Before:

Thomas A. Grooms, Esq., Office of the
Solicitor, U.S. Department of Labor, Nashville,
TN, for Petitioner;
Michael O. McKown, Esq., Henderson, KY, for the
Respondent.

Judge Fauver

This proceeding was brought by the Secretary of Labor
for civil penalties for alleged violations of safety
standards under the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801, et~
Based on the hearing evidence and the record as a whole,
I find that a preponderance of the reliable, probative, and
substantial evidence establishes the following:
FINDINGS OF FACT
1. Peabody Coal Company is a large operator of coal
mines producing coal for use or sale in interstate commerce.
2. The penalties proposed by the Secretary of Labor
would not affect tbe ability of the operator to continue in
business.
3. Camp No. 2 Mine is opened into the Kentucky No. 9
coal seam by one slope and six shafts. The coal seam is
about 62 inches thick.
4. On October 10, 1985, about 7:30 p.m., a methane
explosion occurred in Camp No. 2 Mine, in the No. 1 unit,
section 013. The explosion was in the No. 3 entry working
place where a loading machine and shuttle car were operating.
The shuttle car had just entered the working place and was

1048

being loaded when its trailing cable arced as it came through
the sheave bracket, igniting methane. The explosive fire
ball expanded into the first outby intersection then traveled
back into the working place and once again went out into the
intersection and was self-extinguishing. The explosion ·
caused serious burn injuries to the loading machine operator
and the shuttle car operator.
5. The MSHA accident investigation team began their
investigation at the mine about 11:00 p.m., October 10, 1985.
They gathered a number of eyewitness accounts, which may be
summarized as follows:
(a) George Wallace, the loading machine
operator, stated that he was in the process
of loading a three-way place, and
had just completed loading the fall of coal
from the crosscut right of the No. 3 entry
when the methane monitor deenergized the
machine. The line brattice was extended
to within approximately 10 feet of the face,
and the power was restored to the loader.
Wallace then began to position the machine in
preparation to load the fall of coal at the
face of the No. 3 entry when the explosion
occurred.
{b)

Harry D. Cowan, the shuttle car driver,
that he had entered the working place
and was in the process of being loaded when his
trailing cable arced to the frame as the cable
came through the sheave bracket. The methane
fire ball traveled into the intersection of the
last open crosscut, then back to the face of the
No. 3 entry, and once again out into the
intersection and was self-extinguishing.
sta~ed

(c) Jim Ashby, shot fireman, was in the crosscut
between No. 2 and No. 3 entries, and Donald
Strouse, a unit helper, had just walKed up to the
outby side of the intersection.
They saw the cable
arc and ignite the methane. Ashby stated that as
the flame came into the intersection the second
time, he ran to the unit power center shouting to
have "someone knock the power."

1049

6.
Wallace sustained burns to his arms, back, face,
and hands; Cowan sustained burns to his hands, left arm, and
face. Coworkers administered first aid and the injured
miners were. transported to the surface and taken by ambulance
from the mine to the valley View Medical Center, Union
County, Kentucky.
7. The No. 1 unit is a conventional mining unit.
After blasting, coal is loaded into shuttle cars that dump
onto a series of belt conveyors. The mine is developed by
the room and pillar system of mining. Pillars are not
extracted.
9. In the accident investigation, MSHA Inspector Louis
Stanley found that the area was not adequately rock-dusted in
that rock dust had not been applied to the roof, face, and
ribs of the following places: No. 1 entry from the face
outby for 50 feet, No. 2 entry from the face outby 55 feet
(No. 3 entry was wetted down after the explosion and was too
wet to sample for rock dust), No. 4 entry from the face
outby for 50 feet, No. 5 entry from the face outby for 47
feet, and throughout the last open crosscut from No. 1 to No.
6 entries.
Based on this condition, he charged Respondent
with a violation of 30 C.F.R. § 75.402, in Order No. 2507995,
and MSHA assessed a civil penalty of $750. Respondent did
not contest this charge. The gravity of this violation was
serious.
10. In the accident investigation, MSHA Inspector J.M.
Larmouth tested with a multimeter across a 0.1 ohm resistor
between the frames of the 480 volt A.C. loading machine and
the 300 volt D.C. shuttle car and found that the level of
D.C. millivolts was in excess of 150. Because of this
condition, he charged Respondent with a violation of 30
C.F.R. § 75.524, in Citation No. 2508383, and MSHA assessed a
civil penalty of $750. Respondent did not contest this
charge. This was a serious violation that presented another
possible source of ignition of methane.
11. In the accident investigation, MSHA Inspector T.W.
Cullen found that the trailing cable attached to the shuttle
car had exposed bare wires at one place.
Because of this
condition, Respondent was charged with a violation of 30
C.F.R. § 75.517, in Citation No. 2508003, and MSHA assessed a
civil penalty of $750. Respondent did not contest this
charge. This violation was serious. The exposed power wires
apparently came into contact with the sheave bracket, causing

1050

an electric arc, which was the probable source of ignition of
the methane. The arcing of the trailing cable could have
been prevented, if the exposed wires had been properly
insulated and protected from contact with other metal
objects.
12. In the accident invesigation, MSHA Inspector J.M.
Larmouth tested the methane monitor on the loading machine
and found that it did not work properly. When tested with a
2.5 percent mixture of methane, the monitor would not
deenergize the power on the loading machine and the meter on
the methane monitor did not register more than 1.75 percent
methane when the tests were conducted.
Because of the
defective monitor, Respondent was charged with a violation of
30 C.F.R. § 75.313-1, in Citation No. 2508385, and MSHA
assessed a civil penalty of $2,000. Respondent at first
contested this charge but settled at the hearing by
withdrawing its contest and agreeing to pay the penalty of
$2,000. This was a serious violation. The methane explosion
may have been prevented if the methane monitor had been
operative and properly maintained.
13. In the accident investigation, MHSA Inspector
Stanley found that permanent stoppings had not been installed
in the third open crosscut betw-een the intake and return
entries. Because of this condition, Respondent was charged
with a violation of 30 C.F.R. § 75.316, in Order No. 2507994,
and MSHA assessed a civil penalty of $950. Respondent did
not contest this charge. This was a serious violation.
This
condition could have allowed air in the intake entry to
escape into the return entry, thus lessening the ventilation
reaching the working face.
14. In the accident investigation, Inspector Stanley
tested for ventilation at the site of the explosion and found
there was no perceptible movement of air. When he attempted
to take an air reading at. the inby end of the line curtain,
~O feet from the working face, the vanes of his anemometer
would not turn and a smoke tube test also failed to disclose
any perceptible movement of air. Management had represented
to the MSHA investigation team that the evidence at the
accident scene had not been disturbed or changed.
Based upon
this representation and his findings at the.scene, Inspector
Stanley determined that the ventilation conditions he found
were as they had existed at the time of the explosion.
Accordingly, he issued Order No. 2507996, charging a

1051

violation of 30 C.F.R. § 75.301-1. This order was contested
and is one of the two disputed charges in this proceeding.
15. In the accident investigation, Inspector Stanley
found that there were no temporary stoppings (air locks)
across Entries 2 and 3 immediately outby the tailpiece as
required by the operator's approved ventilation plan.
Because of this condition, Inspector Stanley issued Order No.
2507993 charging a violation of 30 C.F.R. § 75.316. This
order was contested and is the second disputed charge in
this proceeding.
DISCUSSION WITH FURTHER FINDINGS
Order No. 2507996 (Ventilation at the Working Face}
This order charges a violation of 30 C.F.R. § 75.301-1,
which provides that:
A minimum quantity of 3,000 cubic
feet a minute of air shall reach each working
face from which coal is being cut, mined or
loaded • • • •
Inspector Louis Stanley, a Ventilaton Specialist for
MSHA, with many years experience, testified that during the
accident investigation he could find no perceptible movement
of air in the working place of No. 3 entry. He tested for
air at the inl;>y end of the line curtain with an anemometer
and then with a smoke tube. He stated that the line curtain
was in place, 10 feet from the face, and appeared to be tight
and intact. The ventilation problem was that the cur~ain
extended only about seven feet into the crosscut. Inspector
Stanley stated that Peabody's failure to extend the curtain
across the crosscut was the primary reason that there was no
air movement at the inby end of the curtain in No. 3 entry.
He stated that the line curtain was in ~ery good condition
showing no signs of scorching, burning, or tattering, and
that neither the inby nor the outby ends were torn b~t were,
in fact, cut smoothly.
Because the curtain looked surprisingly new, Inspector
Stanley repeated his question to officials--including Mr.
Douglas Rowans, the Mine Superintendent and Mr. Tom Barton,
Assistant Superintendent, both of whom testified at the
hearing--whether or not the scene of the explosion had
been changed. The officials told him that the scene had not

1052

been changed. He relied upbn their representations in
determining that the ventilation.conditions he found at the
explosion site had existed at the time of the explosion.
Peabody's other witness, Carol Browning, the Section
Foreman, testified to a different fact situation concerning
the line curtain. He stated that he arrived at the scene a
few minutes after the explosion, more than four hours before
all the other hearing witnesses, who arrived as a group about
midnight.
Browning stated that he found the curtain pushed
back into the crosscut and that and that it must have been
blown back there by the explosion. He stated that he pulled
the curtain along with him as he walked up to the working
place of No. 3 entry, and rehung the curtain as he went along.
He stated that he rehung ths curtain in order to have oxygen
as he checked and watered down the working place. He stated
that he did not reanchor the curtain on the anchor provided,
10 feet from the working face, but merely looped the end of
the curtain over a nail about 15 to 20 feet from the workin·g
face. He said that he did not tighten the overhead cable
that the curtain hung on, and that the curtain sagged down
from the roof in several places. He also said the curtain
was scorched for two or three feet on one end, but did not
have any holes (other than the eyelets provided for hanging
the curtain) •
Barton testified that the curtain was scorched in
places, that it had some holes, and sagged in several places.
Rowans testified that the curtain was loose and sagged
in places. He did not look at it closely to notice whether
or not there were holes or scorching.
Browning did not tell anyone he had moved and rehung the
curtain, until one or two weeks after the accident
investigation.
I find there was a strict obligation on the
part of Respondent not to disturb or change the evidence at
the explosion scene and, if any changes were made, to notify
the MSHA accident investigation team of such changes
immediately. Respondent may not be heard now to come in with
a new version of the facts after the MSHA accident
investigation with respect to changes in the evidence that
were made by Respondent's own supervisor but not revealed to
the MSHA investigation team. Moreover, the key to Inspector
Stanley's finding of no air movement.at the accident scene
was the location of the curtain only seven feet into the
crosscut, indicating that the air escaped into the crosscut

1053

and did not reach the working face.
I credit Stanley's
testimony as to the distance of the curtain's extension into
the crosscut over Browning's estimate of the distance, and
also over the estimates given by Peabody's other witnesses.
The location of the curtain end only seven feet into the
crosscut substantially shows that at the time of the
explosion the curtain was inadequate to direct the required
ventilaton to the working face.
The evidence shows that Browning was in a nervous,
emotional state after the explosion. His unit had just had a
serious explosion, with severe burns to two miners, due to a
number of negligent violations that could have been prevented
by the exercise of reasonable care and that would point to
his supervision. I do not find that Browning was in a state
of mind to register matters very accurately or objectively in
his memory, right after the explosion. Also, he did not make
notes or diagrams and measurements of the conditions he
observed. On balance, his recollections are not accepted as
sufficient to rebut Inspector Stanley's recollection, notes
and diagrams of what he observed in the working place and
crosscut. The·other witnesses, Barton and Rowans, also did
not make contemporaneous notes or diagrams of the location of
the cur~ain. No company representative objected when
Inspector Stanley stated he was going to cite the company for
a ventilaton violation at the working face.
Respondent argues that Inspector Stanley's observations
of the ventilation conditions at the face were not made while
coal was being mined or loaded and therefore cannot sustain a
charge of a violation of § 75.301-1, which requires 3,000 cfm
of air at "each working face from which coal is being cut,
mined or loaded •••• " I find that mine management's
representations to MSHA that the conditions of the accident
scene had not been changed and Inspector Stanley's
observation of the curtain extending only seven feet into the
crosscut and his finding that there was no perceptible air
movement at the face at the time of investigation justify a
finding that this ventilation condition existed at the time
of the explosion, when coal was being loaded.
I credit
Inspector Stanley's expert opinion, as a Ventilation
Specialist, that the failure to extend the curtain across the
last open crosscut in No. 3 entry was the primary cause of
the lack of perceptible air movement at the face.
I also
find that this dangerous ventilation condition existed at the
time of the explosion and was a major contributing factor in
allowing the buildup of methane to reach an explosive degree.

1054

It is commonly known in underground coal mining that a
mixture of 5% to 15% methane in a mine environment is
explosive and_ will remain explosive without adequate
ventilaton. The purpose of the 3,000 cfm ventilation
standard is "to dilute, render harmless, and to carry away,
flammable, explosive, noxious, and harmful gases" (see
section 303(b) of the Act). The evidence preponderates to
show that Respondent violated the ventilation standard as
charged in Order No. 2507996.
Peabody's compliance history shows that, in the 24-month
period preceding the explosion, Camp #2 Mine was cited for
approximatley 50 paid violations of ventilation standards
C§§ 75.300, -301, -301-1, -302, -302-1, and -316) many of
which were significant and substantial violations, i.e.,
reasonably likely to result in serious injury to miners. The
violation of the ventilation standard involved here
contributed to a methane explosion that seriously burned two
miners.
It was a very serious violation that was due to a
high degree of negligence.
Considering the six criteria for civil penalties in
section llO(i) of the Act, I find that a penalty of $5,000 is
appropriate for this violation.
Order No. 2507993 CAir Locks Outby the Working Face)
This order alleges that "Temporary stoppings (air locks)
were not erected across the Nos. 2 and 3 entry (neutrals) at
a point just outby the belt tailpiece on the working
section ••• as required by the approved ventilation and
methane and dust control plan" CExh. G-2-P).
There is no dispute, as shown by Exhibits G-4A-P and
R-J-P, that the four temporary stoppings shown by horizontal
lines were not in a straight line across Entries 2, 3, 4, and
5, as required by the approved ventilation plan (Exh. G-3-P).
However, Peabody contends that a fifth temporary stopping,
the vertical line stopping in Exh. R-3-P, was in place to
prevent air leakage.
If ·Exhibit R-3-P is accepted as fact,
there was a technical violation of the ventilation plan, but
it was not serious because the air was still locked in by the
fifth temporary stopping.
If Exhibit G-4A-P is accepted as
fact, there was a serious violation because the gap, shown in
that exhibit, would have allowed the air to escape and reduce
the ventilation at the working face where the explosion
occurred.

1055

Inspector Stanley testified that he took an air reading
at the last permanent stopping in the intake side of the unit
and found 13,824 cfm (Tr. 41). He took an air reading on the
return air side and found 11,742 cfm (see Exh. G-4A-P, upper
left side).
Rowans testified that he observed the area after the
explosion and found five temporary stoppings as shown in
Exhibit R-3-P, and that he made notes and a diagram of his
observation when he exited the mine after he inspected the
area. He also testified that, in his opinion, Inspector
Stanley could not have measured 11,742 cfm in the return if
there were a gap in the air locks because the air leakage
would have caused a much lower reading.
Barton testified that he knew the fifth temporary
stopping was in place because he look a group of teachers
through the area that morning and he observed that all of the
temporary stoppings (shown in Exhibit R-3-P) were in place
(Tr. 135).
The MSHA inspectors entered the mine with management
representatives Rowans and Barton (and others) and talked to
them at different times while they made their accident
investigation. However, the inspectors did not tell the
management representatives what citations or orders would be
issued until they all left the unit where the explosion had
occurred.
Rowans testified that, when Inspector Stanley told
Rowans and Barton that he would be issuing an order for a
violation concerning the air locks, Barton immediately
objected, stating that the air locks were there, but Rowans
interrupted him, saying, "I know what he's talking about. ***
They're not in a straight line." and with that, Inspector
Stanley went on to the next charge (Tr. 191).
I find that there was not a clear communication to
management representatives when Inspector Stanley told them
what the mine would be charged with concerning the air locks.
They did not understand that he was contending that there was
a gap in the air locks, and even the written charge did not
make that clear. Had Inspector Stanley made it clear to
Rowans and Barton that he was contending that there was gap
in the air locks that would let air escape, they would have
had an opportunity to ask him to go back to the area with

1056

them to see the air locks that Rowans, Barton, and Browning
say they observed and Rowans put in a diagram when he left
the mine.
In light of this lack of clear communication, the
failure of Inspector Stanley to give, Rowans and Barton
adequate notice of the nature of the charge so they could
show him different evidence, and in light of the direct
conflict of testimony and diagrams concerning the air locks,·
I find that the evidence does not preponderate in showing the
number of air locks present at the time of the explosion.
The evidence does show that four air locks were not in a
straight line, and thus a· violation of the ventilation plan,
but the Secretary has not shown by a preponderance of the
evidence that there was a gap in the air locks, i.e., that
there was not a fifth air lock as shown in Exhibit R-3-P.
I
therefore find that the evidence establishes a technical
violation of 30 C.F.R. § 75.316. Considering the six
criteria for civil penalties in section llOCi) of the Act, I
find that a penalty of $50 is appropriate for this violation.
CONCLUSIONS OF LAW
1.

The Commission has jurisdiction in this proceeding.

2. Respondent violated 30 C.F.R. § 75.301-1, as alleged
in Order No. 2507996.
3. Respondent violated 30 C.F.R. § 75.316 as alleged in
section 12 <"Condition or Practice") of Order No. 2507993,
but the Secretary did not prove by a preponderance of the
evidence the allegations in sections 11, 20, 21-A, 21-B and
21-C of such order.
ORDER
WHEREFORE IT IS ORDERED:
1. The motion to approve settlement of Citation No.
2508385 for a civil penalty of $2,000 is GRA~TED.

1057

2. Respondent shall pay the above three civil penalties
in the total amount of $7,050.00 within 30 days of this
Deci$ion.

J.AA ~

-

~
~--~.,,,,,..
William Fau er
I

Administrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S.
Department of Labor, 280 U.S. Courthouse, 801 Broadway,
Nashville, TN 37203 (Certified Mail)
Michael O. McKown, Esq., P.O. Box 1990, Henderson, KY 42420
(Certified Mail>
kg

1058

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

22041

JUN 51987
YOUGHIOGHENY & OHIO COAL
COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. LAKE 86-25-R
Order No. 2823823; 11/6/85

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

Docket No. LAKE 86-60-R
Order No. 2823753; 2/4/86
:

.

Docket No. L~KE 86-120-R
Order No. 2828630; 8/1/86
Docket No. LAKE 86-121-R
Order No. 2828634; 8/5/86
Nelms No. 2 Mine

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

CIVIL PENALTY PROCEEDINGS
:

Docket No. LAKE 86-70
A.C. No. 33-00968-03634

v.
Docket No. LAKE 86-74
A.C. No. 33-00968-03635

YOUGHIOGHENY & OHIO COAL
COMPANY,
Respondent

Docket No. LAKE 87-9
A.C. No. 33-00968-03650
Nelms No. 2 Mine
DECISION

Appearances:

Robert C. Kota, Esq., St. Clairsville, Ohio,
for Youghiogheny & Ohio Coal Company;
Patrick M. Zohn, Esq., Office of the
Solicitor, U.S. Department of Labor,
Cleveland, Ohio, for the Secretary of Labor.

Before:

Judge Melick

These consolidated cases are before me under section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 80l et seq., "the Act" to challenge the issuance
by the Secretary of Labor of citations a~d withdrawal orders
to the Youghiogheny & Ohio Coal Company CY & 0) and for

1059

review of civil penalties proposed by the Secretary for the
violations alleged therein. The general issues before me are
whether Y & O violated the cited tegulatory standards and, if
so, whether those violations where of such a nature as could
significantly and substantially contribute to the cause and
effect of a mine safety or health hazard, (i.e., whether the
violations were "significant and substantial."> With respect
to the withdrawal orders it will also be necessary to
determine whether the violations were caused by the
unwarrantable failure of the operator to comply with the
cited regulation.
If violations are found, it will be
necessary to determine the appropriate civil penalty to be
assessed in accordance with section llO(i) of the Act.
DOCKET NO. LAKE 86-74
At hearing, the Secretary moved to approve a settlement
agreement with respect to Citation No. 2823824 proposing a
$20 penalty for a non-"significant and substantial" violation.
Y & O agreed to the proposed settlement. I have considered
the representations and documentations submitted in support
of the motion and conclude that the proffered settlement is
appropriate under the criteria set forth in section llOCi) of
the Act.
DOCKET NO. LAKE 86-70 and LAKE 86-25-R
The order at issue in these cases, Order No. 2823823, as
amended, was issued under section 104Cd)(l) of the Act, 1/
and alleges as follows:

!I

Section 104{d)(l) of the Act reads as follows:
"If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and
substantially contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation
given to the operator under this Act.
If, during the same
inspection or any subsequent inspection of such mine within
90 days after the issuance of such citation, an authorized
representative of the Secretary finds another violation of
any mandatory health or safety standard and finds such
violation to be also caused by an unwarrantable failure of

1060

Float coal dust was permitted by the
operator to accumulate on the mine floor, roof
and ribs, of the I return entry and left side
connecting crosscuts from survey station 5 +
40 feet to 13 + 20 feet which was a linear
distance of 780 feet. This condition had been
recorded in the record book on 11-1-85 and
11-5-85 by G. Pepperling, firebos.s.
Foreman
on this section on this shift were G. Torak
and J. Corder.
The cited standard, 30 C.F.R. § 75.400 provides that
"coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on electric equipment
therein."
Y & 0 does not dispute that the violation occurred as
alleged but maintains that the violation was neither
"significant and substantial" nor due to the "unwarrantable
failure" of the opera tor to comply with the cited standard.
According to Inspector Fran~ Homko, of the Federal Mine
Safety and Health Administration (MSHA), at the time of his
inspection on November 6, 1985, approximately 450 to 500 feet
of the return air course in the No. 2 section in the 2 East
main North part of the Nelms No. 2 Mine was dark black in color and an additional contiguous 280 to 330 feet was black
to dark gray in color from coal dust accumulations. Homko
therefore found that approximately 780 linear feet of the
floor, roof and ribs in the return air course and 11
connecting crosscuts were in violation of the cited standard.
Inspector Homko observed that electrical equipment was
operating on the cited section including continuous-mining
machines, ram cars and auxiliary ventilation fans.
In
addition, he noted that a battery-charging station that was
fn. 1 (continued)
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 ref erred to
in subsection (c) to be withdrawn from, and to be prohibited
from entering, such area until an authorized representative
of the Secretary determines that such violation has been
abated."

1061

vented directly into the return air course at issue had
exposed bare electrical power conductors. Homko opined that
the float coal dust accumulations in the return air course
could very well propagate fire or explosion particularly when
considered in conjunction with the fact that the Nelms No. 2
Mine liberates over 1,000,000 cubic feet of methane per day.
Homko also observed that there had been a history of gas
ignitions at this mine and that there was a. potential for a
hydrogen gas explosion from the battery-charging station with
its exposed electrical wiring and that such explosion would
be vented directly into the return air course. Homko
observed that 14 miners worked on the section and would be
exposed to the hazards. Within this framework, I am
satisfied that the violation was "significant and
substantial" and serious.
Secretary v. Mathies Coal Co.,
6 FMSHRC 1 (1984).
I also find that the violation was the result of
"unwarrantable failure."
In this regard, Inspector Homko
testified that the company records of its inspections show
that the cited area was "firebossed" on November 1, and
November 5, 1985. Indeed, page 1 of the record book (Ex. G-5)
shows that on November 1, 1985, 5 days before Homko's
inspection of the same air course, Union fireboss Gary
Pepperling had examined the return and reported that it
needed rock dusting.
In addition, Pepperling reported again
on page 2 of that document that on November 5, 1986, 1 day
before Homko's inspection, that the return needed dusting.
These reports were countersigned by the mine fqreman and mine
superintendent. Under the circumstances, it is clear that
Y & O management had advance notice of the violative
conditions, yet had not corrected them by the time of Homko's
inspection.
Y & O's former assistant safety director, Don Statler,
who accompanied Homko on his inspection that day,
acknowledged the existence of the cited coal dust but
observed that they had been rockdusting up to the afternoon
shift of the day before. Statler conceded that no
rockdusting was being performed at the time he and Homko
observed the cited conditions on November 6, 1985. Statler
also observed that "action taken" to remedy hazardous
conditions reported in the shift books are reported only in
the "work assignments" book, so that no inference can be
drawn from the absence of "remedial" entries in the shift
books. Statler's testimony does not, however, negate the
evidence that mine management knew of the violative coal
dust, yet had discontinued corrective action to remedy this

1062

serious hazard the day before it was cited. Under the
circumstances, the violation was indeed the result of "the
unwarrantable failure" of the operator to comply.
Zeigler
Coal Corp., 7 IBMA 280 (1977>; United States Steel Corp., .
6 FMSHRC 1423 (1984).
For the same reasons it is apparent
that the violation was the result of operator negligence.
Order No. 2823823 is accordingly affirmed and the
contest of that order is denied.
DOCKET NOS. LAKE 86-74 AND LAKE 86-60-R
The order at issue in these cases, Order No. 2823753,
issued pursuant to section 104(d)(2) of the Act
charges a
violation of the standard at 30 C.F.R. § 75.301 and alleges
as follows:

2;

The quantity of air reaching the last
open crosscut separating the intake from the
return, between Nos. H to I entries left side
in 2 section 1 east main north was only
1,732 cubic feet a minute and the last open
crosscut separating the intake from the return
between Nos. B to A entries right side in 2
section 1 east main north was only 4,800 cubic
feet a minute. The quantity of air was
measured with a chemical S·moke cloud. The
last open crosscut left side between Nos. H to
I entries had just been mined and a twin boom
roof bolting machine was operating in this
crosscut. This is a super section with two
sets of equipment and operators alternating
from the left side to the right side each cut
of coal."
~/

Section 104Cd)(2) of the Act reads as follows:
"If a withdrawal order with respect to any area in a
coal or other mine has been issued pursuant to paragraph (1),
a withdrawal order shall promptly be issued by an authorized
representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations similar
to those that resulted in the issuance of the withdrawal
order under paragraph (L) until such time as an inspection of
such mine discloses no similar violations.
Following an
inspection of such mine which discloses no similar
violations, the provisions of paragraph (1) shall again be
applicable to that mine."
·
It is not disputed that in this case there were no
intervening "clean inspections."

1063

The cited standard provides in part as follows:
The minimum quantity of air reaching the
last open crosscut in any pair or set of
developing entries, and the last open crosscut
in any pair or set of rooms shall be
9,000 cubic feet a minute, and the minimum
quantity of air reaching the intake end of a
pillar line shall be 9,000 cubic feet a
minute, and the minimum quantity of air
reaching the intake end of a pillar line shall
be 3,000 cubic feet a minute.
Again, Y & o does not dispute the violation, but
maintains that it was neither a "significant and substantial"
violation nor the result of "unwarrantable failure" to comply
with the cited mandatory standard. MSHA Inspector Herbert
Cook was conducting a spot inspection at the Nelms No. 2 Mine
on February 4, 1986, when he noticed that little air was
ventilating the last open crosscut. He attempted to use his
anemometer between the A and B entries on the right side of
the last open crosscut but found because of the minimal air
flow he was unable to obtain any reading.
Cook then
performed a smoke tube test and found from the computed
results only 4,800 cubic feet of air per minute.
Cook then proceeded to the left side where two miners
were "sweating profusely" as they were working. They asked
Cook to check the air because they felt it was insufficient.
Cook again attempted to use his anemometer, but found that
the blades would not turn.
Cook again took smoke cloud
readings, and the computed results showed only 1,732 cubic
feet of air per minute in the last open crosscut, where
9,000 cubic feet per minute was required.
Cook then found
that only 9,500 cubic feet per minute of air was coming onto
the entire section, whereas, 18,000 cubic feet per minute was
the minimum necessary at the intake.
Cook observed that electrical equipment was operating on
the section including roof bolters, continuous miners and two
battery chargers. He opined that the condition was hazardous
because the ventilation was insufficient to remove respirable
dust and to dilute methane.
Under the circumstances, it may
be inferred that the violation was serious and "significant
and substantial." Mathies, supra.
I do not, however, agree that the violation was the
result of the "unwarrantable failure" of the operator to
comply with the standard or of significant operator

1064

negligence~

It is undisputed that the preshift report shows
that the section was properly ventilated when the readings
were taken between 5 a.m. and 8 a.m. that morning.
It is
further undisputed that the section foreman had verified the
adequacy of the ventilation shortly before 9:00 that morning.
The mine fan gauge chart shows that the interruption of air
flow began shortly thereafter and that the air deficiency was
discovered by the inspector at around 9:25 that same morning.
In addition, further investigation rev~aled that the air
deficiency was primarily ca.used by a ventilation door. being
left open by an independent contractor who was constructing a
new air shaft located some 2,000'feet from the section at
issue. These mitigating circumstances clearly reduce the
degree of negligence and negate an "unwarrantable failure"
finding.
·
·
In reaching these conclusions, I have not disgregarded
the testimony of Inspector Cook and union representative,
Larry Ward, that the absence of air should have been known to
the section foreman because of the absence of a "fresh
breeze." However, I observe that Mr. ward conceded on
cross-examination that the difference between the required
ventilation and that found by Inspector Cook was only about
1/2 mile per hour--a dif fer~nce not detectable by the amount
of breeze on the skin. Under the circumstances, Order
No. 2823753 is modified to a "significant and substantial"
citation under section 104(a) of the Act.
See Secretary v.
Consolidation Coal Co., 4 FMSHRC 1791 (1982).
DOCKET NOS. LAKE 87-9, LAKE 86-120-R, AND LAKE 86-121-R
At hearing, the Secretary moved for settlement of Order
No. 2828630 (Contest Docket No. LAKE 86-120-R) proposing a
penalty of $500. Y & O agreed to pay the penalty in full.
I
have considered the representations and documentation
submitted in.connection with the proposal and I conclude that
the proffered settlement is appropriate under the criteria
set forth in section llO(i) of the Act.
In light of the
proffered settlement, Y & O also requested to withdraw its
contest of said order. Under the circumstances, I accept the
request to withdraw and Contest Proceeding LAKE 86-120-R is
accordingly dismissed.
Order No. 2828634 alleges a violation of the standard at
30 C.F.R. § 75.1710-l(a)(2) and charges as follows:
During an inspection requested by a
representative of the miners, it was
determined that a battery powered scoop
tractor (Serial No. 4881141) was used to clean

1065

up coal and other debris in and inby the last
open crosscut in the main north section and
the battery powered scoop tractor was not
provided with a substantially constructed
canopy or cab. The height of the coal bed was
62 inches. John Slates (section foreman)
instructed David Parrish to operate the
battery powered scoop in this area.
8-1-86.
The cited standard, 30 C.F.R. § 75.1710-l(a)(2)
provides, in relevant part, as follows:
Except as provided in paragraph Cf) of
this section, all self-propelled electric face
equipment, including shuttle cars, which is
employed in the active workings of each
underground coal mine on and after January 1,
1973, shall, in accordance with the schedule
of time specified in paragraphs Ca)(l), (2),
(3), (4), (5), and (6) of this section, be
equipped with substantially constructed
canopies or cabs, located and installed in
such a manner that when the operator is at the
operating controls of such equipment, he shall
be protected from falls of roof, face, or rib,
or from rib and face rolls. The requirements
of this paragraph (a) shall be met as follows:
• • • (2) On and after July 1, 1974, in coal
mines having mining heights of 60 inches or
more, but less than 72 inches.
The violation is not disputed by Y & O.
It acknowledges
that the battery powered scoop tractor, absent the required
canopy, had in fact been operated inby the last open crosscut
on August 5, 1986. Y & O maintains in its posthearing brief~
however, that the order, as an order under section 104(d)(l)
of the Act, must fail because it cannot properly be issued on
an "after-the-fact investigation." See fn. 1 supra. Whether
or not this order was issued improperly in this regard is
immaterial since I find for the reasons that follow that the
order is in any event deficient.
The evidence shows that MSHA Inspector Ervin Dean was
performing an inspection at the Nelms No. 2 Mine on August 4,
1986, when he was given a "section 103(g)" requestfor-inspection by Union Safety Committeeman Larry Ward.
In
his request, Mr. ward alleged that a battery powered scoop
had been operated inby the last open crosscut of the main
north section of the Nelms No. 2 Mine, without the use of a
canopy on August 1, 1986. Based upon this request, Inspector

1066

Dean convened a meeting in the off ice of Mine Superintendent
Charles Wurschu~. Present at that meeting were Inspectors
Dean and Ohler, Mine Superintendent Wurschum, Safety Director
John Woods, and Section Foreman John Slates.
The evidence shows that Slates was the section foreman
in charge of the main north section on August 1, 1986, when
the violation occurred. Slates admitted that he knew the
subject scoop car did not have a canopy and knew that it was
required to have a canopy under the pertinent standards.
Slates further conceded that he ordered the scoop car to be
operated without a canopy in the last open crosscut, and that
he knew it was a violation.
On August 5, 1986, Inspector Dean returned to the Nelms
No. 2 Mine and performed a physical inspection of the area in
which the subject scoop car had been operated on August 1,
1986, and measured the mining height. The mining height in
the cited area was found to be 62 inches thereby
necessitating the use of a canopy by July 1, 1974, under the
cited standard.
The only basis for Inspector Dean's conclusion that the
violation was "significant and substantial" however was
evidence that the roof in the cited area was "shaly" and that
the area was being rehabilitated thereby allowing the roof an
opportunity to "work." Dean's opinion that the employee
working inby the .last open crosscut would be in an area
within 25 feet of the face "wh~re most roof falls occur" adds
little weight to his conclusion. The scoop was merely
performing cleanup work in an area in which other miners
could legally be performing other work without a cab or
canopy. Accordingly I do not find that the Secretary has met
the requisite .burden of proof for establishing this as a
"significant and substantial" violation. Mathies, supra.
Order No. 2828634 must therefore fail as an order under
section 104Cd)Cl) of the Act, and is accordingly modified to
a citation under section 104(a) of the Act. Consolidation
Coal Co., supra. For similar reasons, I find that the
Secretary has failed to prove the violation to be of high
gravity.
I do find, however, that the violation was the result of
gross operator negligence and indeed was a willful violation.
The responsible section foreman readily admitted that what he
did was a violation and that he nevertheless directed his
employee to work in the last open crosscut on equipment not
provided with the requisite canopy.

1067

Civil Penalties
In assessing civil penalties.for the contested
violations herein, I have also considered the undisputed
evidence of the operator's history of violations, size and
good faith abatement of the cited conditions. Accordingly,
the following civil penalties are found to be appropriate for
the contested violations: Citation No. 2823753 - $750; Order
No. 2823823 - $750; Citation No. 2828634 - $400.
ORDER
The Youghiogheny & Ohio Coal Company is hereby ordered
to pay the following civil penalties within 30 days of the
date of this decision: Citation No. 2823824 - $20; Citation
No. 2823753 - $750; Order No. 2823823 - $750; Order
No. 2828630 - $500; Citation No. 2828634 - $400. The Contest
Proceedings are dismissed or granted in part in accordance
with this decision.

aw Judge
Distribution:
Robert c. Kota, Esq., Youghiogheny
Box 1000, St. Clairsville, OH 43950

Company, P.O.
Mail)

Patrick M. Zohn, Esq., Office of the Solicitor, U.S.
Department of Labor, 881 Federal Office Building, 1240 East
Ninth Street, Cleveland, OH 44199 (Certifi~d Mail)

/f b

1068

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

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

JUN 819·87

CIVIL PENALTY PROCEEDING
Docket No. WEST 87-40
A.C. No. 05-03644-03535

v.

Coal Creek Prep Plant
:

MID-CONTINENT RESOURCES,
INC.,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Edward Mulhall, Jr., Esq., Delaney & Balcomb,
Glenwood Springs, Colorado,
for Respondent ..

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. § 801 et seq., {"Mine
Act"). The Secretary of Labor, on behalf of the Mine Safety
and Health Administration, charges the operator of a coal mine
with violating a safety regulation, 30 C.F.R. § 48.28(a) which
requires each miner to receive a minimum of 8 hours of annual
refresher training as prescribed in the section.
This proceeding was initiated by the Secretary with the
filing of a proposal for assessment of a civil penalty. The
operator filed a timely appeal contesting the existence of the
alleged violations and the amount of ·the· proposed $200 penalty.
Discussion
When this civil penalty proceeding was called for hearing
on April 28, 1987, the parties announced upon the record that
they had reached a settlement.

1069

Counsel for the petitioner moved to amend the citation from
a significant and substantial violation to a non-significant and
substantial' violation and to reduce the proposed civil penalty
from $200 to $20. Respondent, in turn, moved to withdraw its
notice of contest.
The motions were based on the fact that further study and
investigation established that the miner in question had received
annual refresher training but the MSHA form sent in by the operator
was npt properly filled out as to the type of training he received
or possibly that he received "underground" training rather than
the "surface" t·raining he should have received. The miner had at
one time been given complete underground coal training and had
received annual retraining as appropriate in January each year.
His entire employment with respondent had been on the "Rock Tunnel
Project" and in the Coal Basin Preparation P_lant.
After careful review and consideration of the pleadings, arguments, and the information placed upon the record at the hearing,
I am satisfied that the proposed settlement disposition is reasonable, appropriate and in the public interest.
Accordingly, the motions made at trial are granted.
ORDER
Citation No. 2831755 is amended to allege a non-significant
and substantial violation of safety regulation 30 C.F.R. 48.28(a)
and, as amended the Citation is affirmed and respondent is ORDERED
to pay a civil penalty of $20 within 30 days from the date of this
decision.

-~
Aug t F. Cetti
Administrative Law Judge

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, co
80294
(Certified Mail)
Edward.Mulhall, .Jr., Esq., Delaney & Balcomb, P.O. Drawer 790,
Glenwood Springs, CO 81602 (Certified Mail)
/ot

1070

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

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

.
.
:

v.
VINNELL MINING & MINERALS
CORPORATION,
Respondent

.

JUN 81987.

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 85-152-M
A.C. No. 04-03008-05509
Oro Grande
Docket No. WEST 86-157-M
A.C. No. 04-03008-05510
Oro Grande Silica Mine

DECISION
Appearances:

Leroy Smith, Esq., Office of the Solicitor, U.S.
Department of Labor, Los Angeles, California,
for Petitioneri
Mr. Don L. McRae, Vice President, Vinnell Mining &
Minerals Corporation, El Monte, California,
pro se .•

Before:

Judge Lasher

These proceedings were initiated by the filing of petitions
for assessment of a civil penalty by the Secretary of Labor
pursuant to Section llO(a) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. Section 820(a)(l977). The Secretary seeks
assessment of penalties for a total of 13 alleged violations involved in the two dockets.
After the hearing in Victorville, California on April 8 and
9, 1987, the parties reached a settlement, which is here
approved, involving 9 of the 13 alleged violations. Pursuant
thereto, Respondent agrees to pay the full amount of Petitioner's
initially proposed penalties, to wit:
Citation No.
Penalty
2671481
$ 20.00
2671484
20.00
2671485
20. 00
2671486
20.00
2671488
20.00
2364698 (Docket 85-152-M~/> 119.00
2671482
91.00
2671487
91.00
2671489
68.00
1/ This Citation is the only one involved in Docket WEST
85-152-M. The remaining 12 Citations are contained in WEST
86-157-M.

1071

With respect to five of these Citations, Nos. 2671481,
2671484, 2671485, 2671486, and 2671488, the Secretary did not
designate the violations involved as "Significant and Substantial". As to the remaining four Citations resolved by the
agreement, Nos. 2364698, 2671482, 2671487, and 2671489, the
parties have agreed that the violations described therein were
"significant and substantial".
Four of the original 13 Citations (Nos. 2671483, 2671490,
2671491 and 2671492) remain for disposition. As part of their
settlement, the parties agree that the "significant and
substantial" designation thereon should be deleted and such will
be so ordered subsequently herein. The occurrence of all violations being conceded, the issues involved for determination
here are the amount of appropriate penalties which should be
assessed for the four violations cited in Citations Nos. 2671483,
2671490, 2671491, and 2671492.
The amount of a penalty should relate to the degree of a
mine operator's culpability in terms of willfulness or
negligence, the seriousness of a given violation, the business
size of the operator, and the mine operator's compliance history,
i.e., number and nature of violations previously discovered at
the mine involved. Mitigating factors include the operator's
good faith in promptly abating violative conditions and the fact
that a significantly adverse effect on the operator's ability to
continue in business would result from assessment of penalties at
a particular monetary level. Factors other than the six abovementioned criteria <which are expressly provided in the Act) are
not precluded from consideration either t9 increase or reduce the
amount of penalty otherwise warranted.
Based on written stipulations submitted by the parties prior
to hearing, I find this to be a small mine operator CT. 60) with
an average history of prior violations Cll in the preceding
24-month period) who proceeded in good faith to promptly abate
these four violations upon notification thereof. Payment of
appropriate penalties will not jeopardize Respondent's ability to
continue in business. The remaining mandated assessment factors,
negligence and gravity, are separately discussed below as to each
of the four Citations.
CITATION NO. 2671483
The standard infracted, 30 C.F.R. § 56.12032, provides:
"Inspection and cover plates on electrical equipment
and junction boxes shall be kept in place at all times
except during testing or repairs."
The violative condition Cor practice> involved is described

in the subject Citation as follows:

1072

"The main electrical panels cover plates were not in place.
The panels were rated on high voltage. In the event a
person would come in contact with energized part a serious
injury would occur."
When observed by MSHA Inspector Edmundo Archuleta, the cover
plates were laying on the ground in an unlocked building, an 8 x
20 trailer. The Inspector was advised that an electrical
contractor was installing a new electrical system-but no one was
in the area (including employees) when the condition was
observed, nor were any warning signs up. The panel (conductors)
was energized at· the time. A sign on the one door to the trailer
said: "Danger High Voltage". · The record indicates that had someone tripped or otherwise have cont~cted the exposed energized
wires, a fatality could have resulted. The Inspector felt it was
likely that such event could have occurred and that one person
would have been exposed to the hazard. Respondent showed that
there was no reason for any employee to have been in the building
and that the electrical contractor was the one who removed and
left off the cover plates. There was no evidence as to the
length of time the cove~ plates were off the panel. The electrical contractor worked for Respondent for approximately four
months months and the inspection was conducted approximately midway or toward the end of such period CT. 140).
This is found to be a serious violation which resulted from
the negligence of Respondent •. Since it is not a "significant and
substantial" violation, a penalty of $75.00 is found appropriate.
CITATION NO. 2671490
The standard infracted, 30 C.F.R. § 56.9007, provides:
"Unguarded conveyors with walkways shall be equipped with
emergency stop devices or cords along their full length."
The violative condition cited is described in the Citation
as follows:
"The conveyor belt fe~ding the stacker conveyor belt was
not equipped with an emergency stop device with stop cord.
The conveyor belt was in the area where person (sic) walk
and work on it."
At the hearing, Respondent contended that while the conveyor
had no emergency stop device and was unguarded it had no
"walkway" and was not covered by standard. Pursuant to the
settlement herein, however, the violation was conceded.
The record indicates that the plant was not operating on the
day the violation was observed by the Inspector. The hazard
envisaged by the Inspector was that an employee could be caught
in the pinch points while cleaning up spillage around the

1073

conveyor. Only one miner would have been jeopardized by the
hazard created. Respondent presented convincing evidence that
because of .the distance above ground at the particular place
where an employee might encounter the hazard there was only an
extremely remote chance that he would come into contact with the
pinch points CT.. 213-214, 231-233).
In view of the facts that the plant was not operating on the
day the violation was observed, the remoteness of the r.isk
createa by the violation ever coming to fruition, and the
strength of Respondent's justification for questioning the
application of the standard to the condition to begin with, it is
concluded that only very moderate degrees of negligence and
gravity should be attributed to this violation. A penalty of but
$25.00 is found appropriate and is assessed.
CITATION NO. 2671491
The standard infracted, 30 C.F.R. § 56.9007, is the same as
that quoted above in connection with the previous Citation. The
violative described therein is as follows:
"The stacker conveyor belt in the main plant was not
equipped with an emergency stop device with stop cord.
The conveyor belt is located where persons walk by it
or have to work on it."
The Inspector's determinations with respect to this
Citation were the same as those made in connection with the
previous Citation, No. 2671490 CT. 243). The injuries he
contemplated had an accident occurred ranged from the type which
might result in "lost time" to those which might result in a
fatality.
The Inspector's opinion was that the ~espondent was
negligent since the violation was in "plain view" and that the
degree of such negligence was but "moderate" since the plant was
not in operation on the day of inspection. Respondent's evidence
again established that because of the height of the place where
the hazard was present it was "possible" but not likely that an
injury would result t~erefrom. As in the case of the violation
described in Citation No. 2671490, I conclude that dnly low
degrees of gravity and negligence should be attributed to this
violation. A penalty of $25.00 is assessed.
CITATION NO. 2671492
The standard violated, 30 C.F.R. § 56.14001, provides:
"Gears; sprockets; chains, drive, head, tail, and takeup
pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and similar exposed moving machine parts which may
be contacted by persons, and which may cause injury to
perso_ns, shall be guarded."
The violative condition involved is described in the
Citation as follows:

1074

"The head pulleys on the west side of the cone crusher
under conveyor belt was not guarded. The unguarded pulley
was within the reach of persons who walk or work by the
unguarded pulley."
The Inspector testified that the injuries which could result
from this violation ranged from those resulting in "lost workdays" to fatalities. The hazard he foresaw was "if somebody was
cleaning up or doing maintenance, they could come in contact with
the unguarded pinch point and somebody could have also stumbled
in and fell into the belt." He also attributed but a moderate
degree of negligence to Respondent since he felt that after completion of the "expansion" program in progress at the time,
Respondent would have installed appropriate guarding. The violative condition was open·"to plain view." CT. 263). As with
other violations, Respondent established that the plant was not
running on the day in question. Respondent also showed that it
was quite unlikely that cleaning up spillage would be attempted
while the plant was in operation and the belts running {Tr.
266-267). Accordingly, the violation is found to be of a low
degree of gravity and to have resulted from only a moderate
degree of negligence on Respondent's part. As with the prior
three violations, the "significant and substantial" designation
is to be deleted-warranting a reduction in penalty. A penalty of
$25.00 is found appropriate.
ORDER
Respondent shall pay the Secretary of Labor within 30 days
from the date hereof the penalties hereinabove individually
assessed for the 13 violations in the total sum of $619.00.
Citation Nos. 2671483, 2671490, 2671491, and 2671492 are
modified to delete that portion thereof designating such violations as being "significant and substantial" and are affirmed
in all other respects; the other nine Citations involved are
affirmed in all respects.

/,), ·/ " a -~"f:~~ lic.t.. /'"71-· -

"'7/hvf,C~t --l...-

Michael A. Lasher, Jr.
Administrative Law Judge
Distribution:
Leroy Smith, Esq., Office of the Solicitor, U.S. Department of
Labor, 3247 Federal Building, 300 ~. Los Angeles Street, Los
Angeles, CA 90012 {Certified Mail)
Vinnell Mining and Minerals Corporation, Mr. L.K. Richardson, Mr.
Don McRae, Vice President, 3380 Flair Avenue, Suite 236, El
Monte, CA 91731 {Certified Mail)
/bls
1075

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

JUN 8 1981

CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 85-154-M
A.C. No. 05-03695-05512 A

v.

Docket No. WEST 85-163-M
A.C. No. 05-03695-05513 A

BERT W. BIELZ, JR., and
RICHARD McNEELY,
Respondents

Silver State Mining Corporation'
Iron Clad Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Morris

These are consolidated civil penalty proceedings initiated
by the petitioner against respondents in accordance with the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq.
In Docket No. WEST 85-154-M respondent Bielz is charged in
Citation 2099741 as an agent of the corporate mine operator with
knowingly authorizing, ordering or carrying out the operator's
violations of the mandatory safety standards published at 30 C.F.R.
§ 55.5-2 and § 55.5-5.
In WEST 85-163-M the same charges in Citation 2099742 are
pending against respondent McNeely as an agent of the corporate
mine operator.
Under section llO(a) of the Act, the corporate mine operator
was assessed a civil penalty of $1,000 for its violation of 30
C.F.R. § 55.5-2 and a civil penalty of $5,000 for its violation
of §· 55. 5-5. See Secretary of Labor (MSHA) v. Silver State
Mining Corporation, FMSHRC .Docket No. WEST 84-145-M. The case,
decided by Commission Administrative Law Judge Gary Melick on
April 2, 1987 has not been appealed.
In the present proceedings under sectiqn llO(c) of the Act,
a civil penalty of $200 for violating 30 C.F.R. § 55.5-2 and a
civil.penalty of $2,000 for violating 30 C.F.R. § 55.5-5 were
proposed against each of the respondents herein.
Respondents now desire to withdraw their contests in these
proceedings and they have tendered to the Secretary two separate
checks in the amount of $2,200 each, representing payment in full
of the proposed civil penalties herein. ·

1076

I have reviewed the proposed settlement and I find it is
reasonable and in the public interest. It should be approved.
Accordingly, I enter the following:
ORDER
1.

The settlement is approved.

2.

In WEST 85-154-M the Secretary's.petition is affirmed.

For the violation of Citation 4099741 a civil penalty of
$200 is assessed.
For the violation of Citation 2099742 a civil penalty of
$2,000 is assessed.
3.

In WEST 85-163-M the Secretary's petition is affirmed.

For the violation of Citation 2099741 a civil penalty of
$200 is assessed.
For the violation of Citation 2099742 a civil penalty of
$2,000 is assessed.

Law Judge

Distribution:
J. Philip Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified
Mail)
Randy L. Parcel, Esq., Parcel & Mauro, 1801 California Street,
Denver, CO 80202 {Certified Mail)

/ot

1077

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

HENRY C. STAIRS,
Complainant

v.

JUN 8 \987

DISCRIMINATION PROCEEDING

.

Docket No. WEST 86-198-DM
MD 86-34

COEUR d'ALENE MINES
CORPORATION, .
Respondent
ORDER DISMISSING WITH PREJUDICE
Complainant Henry c. Stairs died July 10, 1986, leaving
no surviving spouse. Although the known next of kin have been
contacted, no one has been appointed to serve as Personal
Representative of the Complainant's estate or indicated any
interest in such an appointment.
Finally, on May 12, 1987, a Notice that the case would be
dismissed with prejudice unless a Personal Representative was
appointed and made an appearance in this matter within 20 days
was sent by certified mail to all known next of kin. There
has been no response to the Notice of intention. Under the
circumstances Coeur d'Alene Mines Corporation is entitled to
an order dismissing the case with prejudice.
ORDER
Good cause having been shown it is ORDEREQ that the above
captioned case be and it hereby is dismissed with prejudice.

Au st F. Cetti
Administrative Law'Judge
Distribution:
W.W. Nixon, Esq., 409 Coeur d'Alene Avenue, P.O. Box 1560,
Coeur d'Alene, Idaho 83814
(Certified Mail)
Fred M. Gibler, Esq., Evans, Keane, Koontz, Boyd & Ripley,
111 Main Street, P.O. Box 659, Kellogg, Idaho 83837-0659
(Certified Mail)

/ot

1078

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

JUN 91987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.
.
.

v.

:

ALT, INCORPORATED,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. PENN 85-312
A. C. No. 36-06352-03505
Iselin Mine

.
DECISION

Appearances:

Mark Swartz, Esq., Office of the Solicitor, U. S.
Department of Labor, Philadelphia, Pennsylvania,
for the Petitioner;
Donald P.· Tarosky, Esq., Greensburg, Pennsylvania,
for the Respondent.

Before:

Judge Weisberger

Statement of the Case
The Secretary (Petitioner) filed a petition for Assessment
of Civil Penalty for an alleged violation by Respondent of
30 C.F.R. § 77.1001. Pursuant to notice the case was heard in
Pittsburgh, Pennsylvania, on March 12, 1987. Wendell A. Hill
testified for Petitioner, and Harold Altmire and Jay Altmire
testified for the Respondent.
'

Petitioner, at the onset of the hearing, made a motion to
disallow Respondent from introducing evidence on the issues of
"significant and substantial" and "unwarrantable failure."
Decision was reserved to allow the Parties to brief this issue.
Petitioner filed its posthearing brief on May 7, 1987, and
Respondent filed its brief on May 13, 1987.
Stipulations
The Parties have stipulated as follows:

1. Alt, Incorporated owned and operated the Iselin
Mine on May 5, 1985, and 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
CAct).

1079

2. Alt, Incorporated owned and operated the Iselin
Mine as of November 19, 1984.
3. The Iselin Mine is a surface coal mine and is subject the regulations found at 30 C.F.R., Part 77.
4. The Administrative Law Judge has jurisdiction over
this proceeding pursuant to section 105 of the 1977
Act.

s. A copy of Citation Number 2409178 (attached to the
Petition for Adjudication (sic.) of Civil Penalty) is an
authentic copy of the original citation.
6. The Parties stipulate to the authenticity and admissibility of the following documents:
a. A copy of Citation Number 2409178 issued by
Wendell E. Hill on May 15, 1985.
b. A copy of the inspector's notes prepared by
Wendell E. Hill concerning his May 15, 1985
inspection of the Iselin Mine.
7. During the period from November 19, 1984 through
May 14, 1985, the Alt, Incorporated Iselin Mine had a
history of one assessed and paid violation: 104(a)
Citation Number 2408087 issued on February 1, 1985,
with an assessment of $20.00.
8. The assessment of $500 penalty in this matter will
not affect the Respondent's ability to continue in
business.
9. currently, there is no production at the Iselin
Mine.
Issues
The issues are whether the Respondent violated 30 C.F.R.
if so, whether that violation was of such a nature
as could significantly and substantially contribute to the cause
and affect of a mine safety or health hazard, and whether the
alleged violation was the result of the Respondent's unwarrantable
§ 77.1001 and,

1080

failure.
If section 77.1001, supra, 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, 30 u.s.c. § 801 et. ~·, (the "Act">.
Citation
Citation 2409178, issued on May 15, 1985, alleges a significant and substantial violation in that "loose hazardous material
was not placed for a safe distance from the ·top of the highwall
there was a piece of rock 10 feet long, 5 and 1/2 feet wide, and
8 to 12 inches thick that had not been removed."
Regulation
30 C.F.R. § 77.1001, as pertinent, provides as follows:
"Loose hazardous material shall be stripped for a safe distance
from the top of pit or high.walls •••• "
Findings of Facts and Conclusions of Law
I

On May 15, 1985, Wendell A. ·Hill, MSHA Inspector, with over
13 years of experience as an inspector, arri~ed at Respondent's
Iselin Mine Ca surface mine) to make a complete inspection. While
in the pit, Hill observed a rock overhanging, or jutting out from
the top of the highwall. He estimated the size of the overhanging
rock to be 6 feet long, 5 and 1/2 feet wide, and 8 to 10 inches
thick. He told the two miners, who were working in the pit, to
stay clear of the rock. He then proceeded to the top of the highwall to make a closer examination of the rock. He observed a crack
2 or 3 feet from the tip of the rock.
He testified that there was
no dirt or other material on top of the rock that was jutting ·out.
Hill described the rock as sand rock and estimated its weight to be
more than a ton. Hill brought the rock to the attention of the
Respondent's President, Harold Altmire, and indicated that it
should be taken down. Altmire agreed to cooperate, and made a road
to the top of the highwall so that a backhoe could be driven there
to remove the rock. Jay Altmire, a miner employed by Respondent,
took the backhoe to the top of the highwall to remove the rock.
Hill testified that he stood off to the side approximately 6 feet
from the highwall when the.backhoe was removing the rock.
It was
further his testimony.that no dirt had to be removed from the top
of the rock and that it was only necessary to remove soil from
behind the rock. He further stated that when the bucket of the
backhoe initially touched the back of the rock, which was lying on
solid ground, the tip fell off. He estimated that it took approximately 30 seconds for the backhoe to dislodge and push the rock

1081

down the nighwall. When Hill returned to the pit, he measured two
large pieces of rock that had fallen down as being 6 feet long, 5
and 1/2 feet wide, and 8 to 10 inches thick, and 3 feet wide, 4
feet long, ·and 8,to 12 inches thick respectively. He indicated
that the latter rock was the piece that had broken off when the
bucket of the backhoe touched the rock.
Hill offered.his opinion that prior to its removal the rock
was loose as it was overhanging the highwall and there were no
rocks on top of it. He also opined that it could have been
shaken loose by vibrations from equipment present at the mine or
from thunderstorms. He also testified, in essence, that rain
could have washed out the dirt around the rock and caused it to
fall.
Harold Altmire, who has over 25 years experience running
open pit mining operation&, testified that the rock at issue had
been in the same position for about 5 or 6 days prior to May·lS,
1985. He stated, in contrast to Hill, that when he saw the rock
during a preshift examination on May 15, 1985, he was about 12
feet away and did not see any cracks in it. He testified that
when he observed the rock from the pit that it was not extended
over the edge of the pit. He also said that there was rock,
soil, dust, and clay on top of the rock in question and that in
addition it was covered by another rock. All these observations
were corroborated by Jay Altmire, who further testified, in contrast to Hill, that the latter was not present when he operated
the backhoe, and that it took him (Jay Altmire) approximately 4
minutes to remove the dirt from the rock and push it off the highwall. Harold Altmire also testified that after Hill told him to
remove the rock, the latter drove up the haul road and returned
after the rocks were removed. Jay Altmire testified that about a
week prior to May 15, his brother tried to remove the rock with a
dozer and could not. Harold Altmire testified that in his
opinion the rock was not in any danger of falling.
He said that
if he thought there was any danger qf the rock falling, that he
would have removed it as he would not have wanted to cause any
injury to his two sons who·were the only miners working below in
the pit.
Harold Altmire's testimony with regard to the condition of
the rock was corroborated by the testimony of his son Jay. The
latter's testimony that Hill was not present when he (Jay Altmire)
removed the rock finds some corroboration in the testimony of
Harold Altmire. However, I have adopted that version testified to
by Hill. There was no motive adduced which would tend to impeach
the credibility of Hill's testimony. On the other hand, the
father-son relationship between Respondent's only two witnesses,
tends, to some extent, to dilute the corroborative nature of their
testimony. Moreover, the veracity of Hill's testimony is but-

1082

tressed by the existence of contemporaneous notes that he made of
his inspection. In a note, which, according to his testimony, was
written when he observed the rock from the pit, he described the
rock as being 6 feet long, 5 and 1/2 feet in width, and 8 to 12
inches thick, and being "at top of highwall edge" (emphasis added).
(Government Exhibit 2, page 5.) Also, on pages 8-9, of Government
Exhibit 2, there are contemporaneous statements by Hill that "once
the backhoe was in place at the top of the highwall the piece of
crack 3 feet wide by 4 feet by 8 to 12 inches thick broke off and
rolled into the pit." Page 7, of Government Exhibit 2, contains
a contemporaneous statement that it took the backhoe 30 seconds
to move the rock.· Also, I find Hill's description of the rock
more reliable. When he observed it on May 15, from the top of
the highwall, he was only 6 feet from the rock and examined it
specifically as he was apparently concerned about its condition
when he had observed it from the pit.
In contrast, although
Harold Altmire had seen the rock prior to May 15, when he saw it
on that date he was 12 feet away, and observed it in the course
of his general examination. Inasmuch as his attention had not
been specifically drawn to the rock, in contrast to Hill, it is
concluded that Altmire's examination of the rock on May 15 was
not as thorough as that of Hill's.
Accordingly, based on the testimony of Hill, I conclude that
on May 15, 1985, there was a portion of rock, approximately 6
feet long, 5 and 1/2 feet wide, and 8 to 12 inches thick, with a
crack in the tip, that was hanging over the top of the highwall.
I also conclude, based on the testimony of Hill, that there were
no rocks or other material on top of this portion of the rock.
Based upon these conditions, I conclude that the rock was "loose"
and was within the purview of section 77.1001, supra. In reaching
this conclusion I took into account the plain meaning of the term
"loose" as defin~d in Webster's New Collegiate Dictionary as
follows:
"la: not rigidly fastened or securely attached b(l) :
having worked partly free from attachments •••• "
Although Harold Altmire indicated that, in his opinion, the
rock was safe, he did not specifically rebut any of Hill's
opinions that the rock could have been shaken loose by vibrations,
o~ washed out by rain ~ater~
Accordingly, I find that the rock in
question constituted a "hazardous" material within the purview of
section 77.1001, supra. This conclusion is further buttressed by
Hill's testimony, which I previously adopted, that the rock had a
crack in it, and when initially touched by the bucket of the backhoe, resulted in the tip breaking off and falling down to the pit.
Thus, I find that section 77.1001, supra, has been violated.
II
Althorigh Respondent did not contest the citation herein within 30 days, I find good cause to excuse Respondent, based upon
the testimony for Altmire, that when the section 104Cd)(l) order

1083

was terminated on May 15, 1985, he assumed that the matter had
been resolved. Petitioner has not ~lleged that it has suffered
any legal prejud,ice in Respondent's being allowed to present
evidence on the issues of "significant and substantial" and
"unwarrantable failure." In these circumstances, I find 29 C.F.R.
§ 2700.22 to be controlling, in that the Respondent should not be
precluded from challenging the findings, in the citation, of
"significant and substantial" and "unwarrantable failure." Accordingly, I deny Petitioner's motion to disallow Respondent from
introducing evidence on the issues of "significant and substantial"
and "unwarrantable failure."
III
Respondent has argued.that, considering the testimony of its
witnesses, there is no basis for a finding of "significant and
substantial." However, applying the criteria set forth by the
Commission in Mathies Coal Company, 6 FMSHRC 1 (January 1984), I
find, based upon the testimony of Hill, that I found reliable,
that section 77.1001, supra, has been violated and that the violation herein constituted a discrete safety hazard. Furthermore,
concerning the dimensions of the rock, and its characterization
as sand rock, as testified to by Hill, and considering that this
rock has a weight of about 150 pounds per cubic foot, as indicated
by Government Exhibit 4, page 18, I conclude that there was a
reasonable likelihood that in the event of the rock falling there
would be an injury, of a reasonably serious nature, to either of
the two miners, who were working in the area.
In this connection,
I note the testimony of Jay Altmire that he· was working throughout
the area of the pit unprotected, and it was the uncontradicted
testimony of Hill that rock falling down the highwall into the pit
could have bounced through the window of the equipment being
operated by John Altmire causing serious _injury. Accordingly,
based on the above, I conclude that the nature of the violation
herein was "significant and substantial."

IV
Respondent has argued that any alleged violation was not due
to its "unwarrantable failure", as Altmire testified that a State
Inspector, who inspected the subject mine on May 10, 1985, did
not mention the hazard of the rock. Nor did the latter cite
Respondent for the alleged condition. I did not place much weight
on the conclusions of the inspector, a person who did not testify.
Further, the written State Inspection Report, Respondent's Exhibit
2, does not indicate that the subject rock was specifically
examined.

1084

In essence, it was the testimony of bolh Harold Altmire and
Jay Altmire that they were aware of the existence of the rock
prior to May 15. Harold Altmire even saw the rock when he made
his preshift examination on May 15, 1985. Accordingly, I conclude based, on the testimony of Hill, that a close examination
of the rock by either of Respondent's witnesses, as performed by
Hill, would have revealed a crack in the rock and the fact that
the rock was hanging over the highwall. Thus, I conclude that
the violation herein resulted from Respondent's "unwarrantable
failure."

Having considered the criteria in section 110 of the Act,
supra, and considering the Respondent's high degree of negligence
and the seriousness of the violation, I conclude that the penalty
of $500, as proposed by Petitioner, is appropriate.
ORDER
It is ORDERED that Respondent pay the sum of $500, within 30
days of the date of this decision, as a civil penalty for the
violation found herein.

£~

~

Avram Weisberger
Administrative Law Judge

Distribution:
B. Anne Gwynn, Esq., Office of the Solicitor, U. S. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Donald P. Tarosky, Esq., 126 North Maple Avenue, Greensburg, PA
15601 (Certified Mail)
dcp

1085

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

June 10, 1987

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 87-42-M
A. C. No~ 42-00149-05502 P9N
Kennecott Mine

EMKO CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

In response to the Disapproval of Settlement and Order to
Submit Information dated May 6, 1987, the parties have now submitted additional information to justify the proposed settlement
of Order No. 2644520A. The penalty was originally assessed at
$300 and the proposed settlement is for $150.
In the joint motion to approve settlements dated April 4,
1987, the parties represented that the 50% reduction in the
originally assessed amount was justified because "negligence
[was] less than originally assessed." Because no reasons were
given to support this representation, the motion was deni~d and
the parties were ordered to submit additional information.
The operator's attorney now advises that the operator had in
effect a safety manual and a policy prohibiting the subject
activity. In addition, she states that affidavits of the individuals involved indicate that despite the violation they were in
fact, attempting to perfo~m the construction in a safer manner
than may otherwise have occur.red.
The Solicitor represents that letter from the operator's
attorney contains the factual basis for their decision to reduce
the penalty.
It appears that reduction in the negligence factor is warranted under applicable Commission precedent. Southern Ohio Coal
Company, 4 FMSHRC 1459 (1982). However, the operator must be
aware that it has a duty not only to have a safety policy, but to
enforce it through appropriate measures including supervision and
training.
In light of the foregoing I approve the recommended
settlement.

1086

With respect to the three other violations involved in this
case, the Solicitor has moved to vacate Order No. 2644520B and
the operator has agreed to pay the original assessments of $300
each for Order Nos. 2644520C and 2644520D. The April 4, 1987,
motion to approve settlements addressed these violations in light
of the six statutory criteria set forth in section llO(i) of the
Federal Mine Safety and Health Act of 1977. I accept these
recommended settlements.
Accordingly, the motion to approve settlements is GRANTED
and the operator is ORDERED TO PAY $750 within 30 days of the
date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
James H. Barkley, Esq., Office of the Solicitor, U. S. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294 (Certified Mail)
Thomas Mascolino, Esq., Counsel, Trial Litigation, Office of the
Solicitor, U. S. Department of Labor, Suite 400, 4015 Wilson
Boulevard, Arlington, VA 22203 (Certified Mail)
Lynn B. Larsen, Esq., Larsen & Wilkins, 500 Kennecott Building,
10 East South Temple, Salt Lake City, UT 84133 (Certified Mail)
Mr. Harry J. Lang, 1919 West North Temple, Salt Lake City, UT
84122 (Certified Mail)
I gl

1087

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

JIJN 111987
METTIKI COAL CORPORATION,
. Contestant

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

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

v.

.
.
.
.
.

CONTEST PROCEEDINGS
Docket No. YORK 87-1-R
Order No. 2701331; 9/10/86
Docket No. YORK 87-2-R
Order No. 2701332; 9/10/86
Docket No. YORK 87-3-R
Order No. 2701333; 9/11/86
CIVIL PENALTY PROCEEDING

.
:

Docket No. YORK 87-5
A. C. No. 18-00621-03568
"A" Mine

METTIKI COAL CORPORATION,
Respondent
DECISION
Appearances:

Susan Chetlin, Esq., Crowell & Moring, Washington,
DC, for Mettiki Coal Corporation;
Edward Fitch, Esq., Office of the Solicitor, u. s.
Department of Labor, Arlington, Virginia for the
Secretary of Labor.

Before:

Judge Melick

These consolidated cases are before me under Section 105Cd)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et. seq., the "Act," to challenge three withdrawal orders
issued by the Secretary of Labor under Section 104Cd)(2) of the
Act and for review of civil penalties proposed by the Secretary
for the violations alleged therein. ~/

1/ Section 104Cd) of the Act reads as follows:
"Cl) If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has
been a violation of any mandatory health or safety standard, and

1088

Order Number 2701331 alleges as follows:
"In the A-portal in the designated haulage number
4 intake air entry beginning about 100 feet inby the
tunnel lining and extending inby to break number 10
where 7 x 9 inch wooden cross-bars had been installed
for additional roof supports there were no indications
that the operator of this mine made an effort to
promptly reset the dislodged leggin·g that had been
dislodged by diesel powered equipment (rubber tire) one
leg under one end of 12 of the bars has been dislodged
and both leg·s under both ends of 9 of the bars had been
dislodged."
The Secretary alleges that these facts constitute a
violation of that part of the standard at 30 C.F.R. § 75.202
fn. 1 (Continued)
if he also finds that, while the conditions created by such
violation do not cause imminent danger, such violation is of such
nature a.s could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard,
and if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation
given to the operator under this Act. If, during the same .
inspection or any subsequent inspection of such mine within 90
days after the issuance of such citation, an authorized
representative of the Secretary finds another violation of any
mandatory health or safety standard and finds such violation to
be also caused by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring the operator
to cause all persons in the area affected by such violation,
except those persons referred to in subsection (c) to be
withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines
that such violation has been abated.
(2) If a withdrawal order
with respect to any area in a coal or other mine has been issued
pursuant to paragraph Cl), a withdrawal order shall promptly be
issued by an authorized representative of the Secretary who finds
upon any subsequent inspection the existence in such mine of
violations similar to those that resulted in the issuance of the
withdrawal order under paragraph (1) until such time as an
inspection of such mine discloses no similar violations.
Following an inspection of such mine which discloses no similar
violations, the provisions of paragraph Cl) shall again be
applicable to that mine.

1089

(entitled "Roof Support Materials") which reads as follows:
"Except in the case of recovery work, supports knocked.out shall
be replaced promptly."
The Mettiki Coal Corporation CMettiki) does not dispute the
factual allegations set forth in the order, but maintains that
those facts do not constitute a violation of the cited standard
since the cited "leggings" that had been dislodged were not in
fact performing a roof support function. Mettiki claims that,
consistent with that part of the cited standard requiring "safety
posts, jacks, or other devices" be used as temporary supports to
hold crossbars in place during installation, once the crossbars
at issue herein were permanently installed with roof bolts there
was no continuing obligation to keep the legs in place. Finally,
Mettiki argues that while the regulation admittedly requires that
any device performing an active support function must be promptly
replaced if dislodged, the legs cited herein were not performing
such a function.
According to Blucher Allison, Mettiki's chief engineer, Ca
graduate mining engineer with 41 years experience in the mining
industry) Mettiki was, at the time the order was issued, in full
compliance with its roof control plan. It is a "full roof bolting
plan" with roof bolts as the primary means of support. According
to Allison the cited legs had been placed under the crossbars as
temporary support in compliance with Item Number 7 of its roofcontrol plan (Exhibit C-5) while the crossbars were bolted into
the roof. The legs were not subsequently removed after the
crossbars were affixed with roof bolts because it was not cost
effective to do so.
The crossbars were bolted on 2 foot centers with two 6 foot
resin-grouted bolts and one 16 foot combination bolt. Allison
observed that once the crossbar was bolted into position it
formed a laminated beam of strata by putting the roof into
compression and the legs.then no longer contributed to the roof
support. Indeed Allison opined that should the roof bolts ever
fail the legs would fail too. Accordingly, he also believed that
there was no likelihood of a roof fall resulting from the removal
of the legs alone. Allison also observed that the roof control
plan does not require legs under crossbars except when timbering
is used as the sole means of roof support.
{See Item ~umber 10
of the Roof Control Plan, Exhibit C-5).
MSHA Inspector Phillip Wilt disagreed with Allison and
maintained that the legs were in fact "supports" within the
meaning of the cited standard. It is apparent however that
Inspector Wilt was not familiar with the support system being
used by Mettiki in the cited entry. Wilt did not know the length
of the roof bolts being used and apparently thought that

1090

timbering was the primary method of roof support. Under such a
system it is essential that the crossbars be supported by legs
(Tr.42). Indeed Wilt thought that the roof bolts here were used
only to hold the crossbars in position to protect workers should
the legs become dislodged. Under the circumstances I am not
persuaded by his testimony. I am convinced by the expert
testimony of Mining Engineer Allison that the displaced legs were
not in fact permanent "roof supports" within the meaning of the
cited standard. The fact that temporary supports have been left
in position does not alone make those supports a part of the
permanent support system. Under all the circumstances there was
no violation and ·the order must therefore be vacated.
Order Nos. 2701332 and 2701333 allege violations of the
standard at 30 C.F.R. § 75.305 and more particularly that part of
the standard that reads as follows:
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 a
examinations and tests shall place his initials and
date and time at the places examined, and if any
hazardous conditions are found, such conditions shall
be reported to the opera tor ·promptly • • • • A record
of these examinations, tests, and actions taken shall
be recorded in ink or indelible pencil in a book,
approved by the Secretary, kept for such purpose in an
area on the surface of the mine, chosen by the mine
operator, tG minimize the danger of destruction by fire
or other hazard, and the record shall be open for
inspection by interested persons.
Order Number 2701332 alleges as follows:
In the A-portal beginning at the entrance of the Number
4 intake designated haulage entry on the surface and
extending inby to the east mains track haulage entry
there are no initials, dates, and time to indicate that
this entry is being examined at least once each week by
a certified person for hazardous condittons, there are
date boards posted at various locations in this entry
and there were initials and dates on three of the
boar1s. One was 10/2/85, one was 12/12/85 and one was
5/28/86 indicating that the 5/28/86 date could have
been the last date this entry was properly examined by

1091

a certified person in its entirety, the distance of the
affected area was about 6000 feet.
Order Number 2701333 alleges as follows:
This inspection began at 10:00 a.m. at Break Number 9,
survey station number BR-95, and extended inby a
distance of 3200 feet to survey station number A-827 in
the Number 1 Skipper Return Air Entry and there were no
initials, dates, or times throughout the entry to
indicate that this entry was being examined in its
entirety by a certified official at least once each
week for hazardous conditions, including tests for
methane. There were initials, date, and time
indicating that the entry had been examined in its
entirety by L. Slige~, certified official this date,
9/11/86, prior to this inspection. But according to
other initials and dates in various locations in the
entry the last examination conducted prior to this
date was 4/02/86, conducted by Alan Smith who was at
that time mine foreman at this mine.
Mettiki does not dispute the factual allegations contained
in these two orders, and indeed, readily acknowledges that the
cited entries were, in fact, not inspected under the cited
standard. It nevertheless maintains that there was no violation
of the standard because "at least one entry of each intake and
return air course was examined in its entirety" in accordance
with the standard. Mettiki points out that the standard requires
a weekly examination of only one entry of ~ach intake and return
air course, but does not require the examination of all entries
of each intake and return air course. The Secretary maintains,
on the other hand, that each of the cited entries in the above
orders were separate and distinct "air courses" and did not
constitute separate entries of the same air course. Accordingly
the Secretary argues that the violation is proven as charged.
It is undisputed that Metiki's "A" Mine is ventilated by an
exhaust fan with the air entering the Number 4 and 5 entries and
then proceeding to all areas of the mine. The SJtipper Number 1
intake entry is ventilated with mixed air from both the Numbers 4
and 5 entries.
At the Number 9 crosscut some of this air
separates into the main section through the Number 5 track entry
(which was being examined in compliance with 30 C.F.R. § 75.305).
The air from the Skipper Number 1 intake and the Number 5 track
entry again merges at the Number 40 crosscut.
Indeed the
undisputed evidence shows that the air in the skipper entries
mixes freely with that in the E-Mains.

MSHA Supervisor Barry Ryan, opined that the Skipper Number 1
intake entry constituted a separate air course and accordingly
was subject to weekly inspections under the cited standard separate from the inspections performed in the Number 5 track entry.
Ryan's opinion was however completely arbitrary and not based on
any definition of the term "air course" in any relevant statute,
regulation, MSHA policy, or industry past usage. Moreover the
Secretary presented no evidence of any prior consistent enforcement under his proferred definition of the term "air course" that
might have established that Mettiki was on notice regarding the
secretary's interpretation. See Jim Walter Resources Inc. v.
Secretary, 9 FMSHRC
, Docket No. SE 85-36-R, et. al.,
May 29, 1987. To the contrary it is clear from the language of
the regulation that each air course may consist of more than one
entry. Mettiki's position herein is consistent with that·
language.
The Secretary simi~arly argues that with respect to Order
Number 2701333, Mettiki's weekly examination of the Number 7 and
Number 9 return escapeways was not sufficient because the Number
3 Skipper Return Air Entry 2/ was a separate "air course"
requiring a separate weekly-inspection under the cited standard.
However, for the reasons previously stated I find no legal or
evidentiary support for the Secretary's arbitrary definition of
the term "air course." To the contrary I find that Mettiki was
examining on a weekly basis "at least one entry of each •••• return
air course in its entirety" and was therefore in compliance with
the cited standard.
Under the circumstances Order Nos. 2701332 and 2701333 must
be vacated.

2/ The entry at issue was cited in the Order at bar as the No. 1

~kipper Return. Air Entry but the undisputed evidence shows tha~

it was actually the No. 3 Skipper Return Air Entry. The order at
bar was never amended to correct this error but in light of the
findings herein, that issue is now moot
ORDER
Order Nos. 2701331, 2701332, and 2701333 are
CATED and the
contests of those Orders are GRANTED. Civil Penalt Proceeding
Docket Number YORK 87-5 is DISMISS

.
AA(,,Q
t~
<...-.

1093

Distribution:
Timothy Biddle, Esq., and Susan Chetlin, Esq., Crowell & Moring,
1100 Connecticut Avenue, NW, Washington, DC 20036 (Certified
Mail)
Edwara H. Fitch, Esq., Office of the Solicitor, u. s. Department
of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA 22203
(Certified Mail)
dcp

1094

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

22041

JUN 121987
CONTEST PROCEEDING

THE HELEN MINING COMP&~Y,
Contestant

.

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

Docket No. PENN 86-94-R
Order No. 2696214; 1/28/86
Homer City Mine

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA'rION CMSHA),
Petitioner

v.
THE HELEN MINING COMPANY,
Respondent

...

Docket No. PENN 86-181
A. C. No. 36-00926-03634

.

Homer City Mine

DECIS!ON
Appearances:

William T. Salzer, Esq, Office of the Solicitor,
u. s. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary of Labor;
Ronald B. Johnson, Esq., Wheeling, West Virginia,
for the Helen Mining Company.

Before:

Judge Weisberger

Statement of the Case
In these proceedings, Helen Mining Company (Respondent) seeks
ta contest a section 104Cd}(2} order issued on January 28, 1986.
The Secretary (Petitioner) seeks a civil penalty for an alleged
violation of 30 C.F.R. § 77.200. Pursuant to notice, these cases
were heard in Pittsburgh, .Pennsylvania, on December 16 - 17, 1986,
and February 2 - 3, 1987. William McClure, Roger Jordan, George
Hazuza, Shirley Rine, and Robert Nelson, testified for the
Petitioner. Josep Dunn, Victor Tagliati, and Lynn Harding
testified for the Respondent.
On February 26, 1987, in Pittsburgh, Pennsylvania, the
Secretary took a deposition of Charles S. Battistoni.

1095

The Petitioner submitted its Proposed Findings of Fact and
Memorandum on April 13, 1987, and the Respondent submitted its
Proposed Findings of Fact and Posthearing Brief on April 21, 1987.
Time was allowed for Reply Briefs to be submitted, and Respondent
submitted its Reply Brief on May 29, 1987. Petitioner did not
file any Reply Brief.
On May 7, 1987, Petitioner flled a Motion for Decision and
Order Approving Settlement to approve a settlement reached
between the parties concerning order number 2696220.
Stipulations
1. The Helen Mining Company owns and operates the Homer
City Mine and 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.
3. The subject order (number 2696214) and termination thereto were properly served by a duly authorized representative of
the Secretary, William McClure.
4. A copy of order number 2696214 (attached to the Petition
for Assessment of Civil Penalty) is an authentic copy of the
original citation.
5. No intervening clean inspection within the meaning of
the Act has been conducted at the Homer City Mine; consequently,
the contestant is within the chain sequence of section 104(d)
orders.
6. The appropriateness of the penalty, if any, to the size
of the coal operator's business sho~ld be determined based on the
fact that the Homer City Mine had an annual production for 1985
of 807,434 tons of coal and production to the third quarter of
1986 of 617,250 tons of coal.
7. At the time of the issuance of order number 2696214 by
Inspector Bill McClure, 13 of 53 forepole pad extensions were not
in contact with the mine roof along the H-Butt No. 4 shortwall
panel of the Horner City Mine.
8. At the time of the issuance of order number 2696214, the
gap between the top of the forepole pad and the mine roof, at the
13 shields in question, ranged from between 2 to 14 inches.

1096

Findings of Fact
1. On January 28, 1986, 9:45 a.m., MSHA Resident Inspector
William McClure conducted a quarterly inspection at the H-Butt
No. 4 shortwall panel at the Homer City Mine owned by The Helen
Mining Company.
2. The shortwall method of mining utilizes a continuous
mining machine which moves along the face of the shortwall panel
and cuts a ten foot wide bloc~ of coal from the face. The length
of the shortwall face at the H-Butt No. 4 panel was between 250
and 300 feet. ~he shortwall system employs a mechanized roof
support system - hydraulically powered shields, made by GullickDobson Ltd., that advance with the face.
3. Support is provided by a pressure arch from the main
canopy of the shield to the coal face.
This causes pressure to
be exerted in the face area.
4. As the continuous miner makes its cut along the face,
the individual shields on the headgate side of the panel are
partially advanced into the void created by the miner's cut. As
the shield is partially advanced, the forepole extension is
extended towards the face in the area where coal has been removed.
It takes approximately 2 hours.for the miner to complete a pass.
5. The forepole pad component of the shield measures 48
inches wide by 28 inches long. The forepole pad is hydraulically
extended out from within the forward canopy of the shield towards
the face for a distance of approximately 5 feet. The forepole is
designed to support up to approximately 14 tons where it is
against the roof.
If it is not against the roof, there is uncertainty as to its support capacity if hit by material falling from
the roof.
6. The function of the forepole extension is to reduce the
area of unsupported roof between the forward canopy tip and the
face.
(Tr. 98, 437: Deposition Tr. pp. 19-20.) It is not a
critical area of a support (Tr. 440).
7. After McClure observed that some of the forepole pads
were not touching the roof, Mick Lloyd, a representative of the
manufacturer, who was present, told him that the forepoles should
be in contact with the roof.
I adopted this testimony as it was
corroborated by Robert G. Nelson, a supervising Coal Mine Safety
Health Inspector for MSHA, who testified for Petitioner. Also I
note that in a deposition taken on February 26, 1987, Charles s.
Battistoni, a MSHA Mine Health Safety Specialist on roof control,
in essence stated, that on February 5, 1986, at a meeting with
Respondent's staff, Lloyd agreed that the canopy tips should be

1097

against the roof once the miner has cleared the shield.
(Deposition Tr~ 20-21.)
It is significant that this is reflected
in notes taken by Battistoni on the day of the meeting
(Deposition 9-12, 21).
8. At the time of Inspector McClure's inspection, a void or
caved area existed above three to four shields in the headgate
entry where the operator had previously used cribbing ahd additional' roof bolts to provide roof support over these shields.
According to McClure this indicated to him that there was a "bad
roof" at the headpole entry and "approximately" into the coal
face CTr. 104); The following day there were breaks and cracks
observed over the shields in the immediate face area.
(Tr. 506.)

9. Four of the 13 forepoles were not in contact with the
mine roof due to a cavity in the roof above the pad where the
roof had fractured and had fallen.
10. The 13 forepole pads not in contact with the roof were
within 4 feet of the face.
As a consequence of the cavity over
two of the shields whose pads did not touch the roof, the area of
the roof that was unsupported was approximately 8 feet by 3 feet.
The remaining nine forepole pads were not in contact with the
mine roof due to the fact that the continuous miner operator had
cut too high into the mine roof.
11. The continuous miner was cutting too deeply into the
roof since January 7, 1986, the date of the installation of the
miner, 3 weeks prior to the issuance of order number 2696214.
This problem was due to poor mining practices and Respondent was
aware of this problem. Failure to correct the gap created by the
miner at the end of a pass led to a bigger gap during the next
pass by the miner.
12. Of the 13 forepole pads not in contact with the roof,·
four were adjacent.

..

13. Eight to 10 feet of mine roof extending out,by the face
was unsupported due to the lack of contact between the 13 forepole pads and the mine roof.

14. During a shift, five or six workers may travel underneath the forepole extensions to fulfill their work assignments.
This finding is based upon the uncontradicted testimony of Roger
Jordan, who works as a beltman for Respondent, and who serves as
the Union's Safety Committee Man.
He testified that every time
he was at the face, at the shortwall section, he saw miners
walking under the forepole pads.

15.
basis.

In this section of the mine, pot outs occur on a daily

1098

16. Five or 6 of the 13 forepole pads not in contact with
the roof, we~e approximately 2 inches below the roof. Contact
with the roof could have been made by placing logging in the gap.
This can be done from under the adjacent support.
17. There was approximately a 6 inch gap between the roof
and 3 or 4 of the forepole pads. .Contact with the roof could
have been made by placing one crib block between the gap and the
pad.
18. There was approximately a 14 inch gap between the roof
and 3 or 4 of the forepole pads. This gap could have been
bridged by constructing cribbing. A worker constructing such
cribbing would be exposed to unsupported roof.
19. Respondent's approved roof control plan does not explicitly provide that the forepole pads be in contact with the roof.
20.
Prior to the issuance of the subject order, Respondent
did not have any knowledge that a failure to maintain roof contact with the forepole pad, at a point no greater than 4 feet
from the face, constituted a violation of the roof control plan.
Regulatory Provision
30 C.F.R. § 75.200 provides as follows:
Each Operator shall undertake to carry out on a
continuing program to improve the roof control system
of each coal mine and the means and measures to accomplish such system. The roof and ribs of all active
underground rqadways, travel ways, and working places
shall be supported or otherwise controlled adequately
to protect persons from falls of the roof or ribs.
A
roof control plan and revisions thereof suitable to the
roof conditions and mining system of each coal mine and
approved by the Secretary shall be adopted and set out
i~ printed form on or before May 29, 1970.
The plan
shall show the type of support and spacing approved by
the Secretary. Such plan shall be reviewed periodically, at least every 6 months by the Secretary, taking
into consideration any falls of roof or ribs or inadequacy of support of roof or ribs. No person shall
proceed beyond the last' permanent support unless
adequate temporary support is provided or unless such
temporary support is not required under the approved
roof control plan and the absence of such support will
not pose a hazard to the miners. A copy of the plan
shall be furnished to the Secretary or his authorized
representative and shall be available to the miners and
their representatives.

1099

Approved Roof Control Plan
Drawing No. 16{b) states as follows:

***
3. The space in between the.shield canopy extensions
and the coal face shall not exceed 4 feet. Where this
spacing is exceeded, roof supports shall be installed
not to exceed 4 foot spacing before· any work or travel
is permitted in this unsupported area, except for the
purpose of installing supports.
Issues
1.

Whether the Respondent violated the approved roof cont:

plan.
2. Whether the approved roof control plan provided that tl
forepole pads of the Gulick-Dobson shield be in contact with
the roof.
3. If the Respondent did not violate the roof control pla:
whether it violated 30 C.F.R. § 75.200.
4. If a violation of a regulatory provision or the approv,
roof control plan occurred, was it of such a nature as could
have significantly and substantially contributed to the cause a
affect of a safety hazard.
5. If a violation of a regulatory provision or the approv
roof control plan occurred, whether such violation was caused b
Respondent's unwarrantable failure.
Discussion and conclusions of Law
Based upon the Parties' stipulations, I conclude that the
Helen Mining Company is subject to the jurisdiction of the
Federal Coal Mine Safety and Health Act of 1977, and that I hav
jurisdiction over this proceeding.
I

On January 28, 1986, when Federal Mine Inspector William
McClure inspected the shortwall section of Respondent's Homer
City Mine, 13 of 53 forepole pad extensions of the Gulick-Dobso
shields, which were positioned within 4 feet of the face, were
not in contact with the roof. McClure issued a 104Cd)(2) order
predicated upon the language of paragraph 3 of Drawing Number
16(b) of the approved roof control plan. However, a plain read

1100

of paragraph 3, supra, reveals that it does not specifically
require the forepole pads to be in contact with the roof at a
point no more than 4 feet from the face. Furthermore, the second
sentence of paragraph 3, supra, requires roof supports before any
travel is permitted in the area "where this spacing is exceeded."
The spacing that is referred to, clearly relates back to the first
sentence of paragraph 3, which sets forth a maximum of 4 feet
between the shield's canopy extensions, (the forepole pads) and
the coal face.
Inasmuch as all the forepole extension pads in
question were not more than 4 £eet from the face, it wou.ld appear
that the installation of roof supports, pursuant to the second
sentence of paragraph 3, supra, is not required.
Petitioner argues, in essence, that contact with the roof is
the "requisite element of roof support." Although the recotd, in
general, appears to oupport this proposition, it must be concluded, due to the language of paragraph 3, supra, that the roof
control plan did not specifically require the forepole pads to be
in contract with the roof no more than 4 feet from the face.
Furthermore, Petitioner has failed to establish that it was
the clear intent of the parties, for the approved roof control
plan to require that the forepole pads be in contact with the
roof.
On the other hand, in t~is connection, it is significant
that Lynn Harding, who had served as Respondent's assistant
safety director and safety director since 1976, has indicated, in
essence, that the approved roof control plan for the shortwall
operation using shields similar to those involved in the instant
case, has been in effect for over 10 years and that MSHA never
issued a citation or a safe-guard or an order pertaining to gaps
between the forepole pads and the roof. This would tend to have
some probative value with regard to the intent of MSHA when the
language contained in paragraph 3, supra, was drafted. Joseph
Dunn, Respondent's general mine foreman, indicated that he wrote
the shortwall roof control plan 10 years ago, and that it was ·not
his intent, in preparing the plan, that the forepole had to be in
contact with the roof.
Inasmuch as a roof control plan, once approved, must be
followed in the same fashion as a mandatory regulatory standard;
it is of critical importance that the plan be unambiguous as to
the requirements imposed upon the mine operator.
I thus find
that inasmuch as paragraph 3, supra, does not specifically mandate roof supports where the f orepole pad extension is not in
contact with the roof, the order issued herein cannot be
predicated upon a violation of the approved roof control plan.
II
At the hearing, Counsel were asked to brief the issue as to
whether, assuming a finding that the roof control plan was not
violated, there still could.be found a violation of a mandatory

1101

regulatory standard. The Respondent, in essence, argues that
because the inspector relied on the requirements of the roof
control plah, this case must be decided upon a consideration of
the requirements of that plan. In essence, Respondent argues
that if it be found that it has not violated its roof control
plan, then there should not be any consideration of whether a
violation of the regulatory stand~rd, section 75.200, supra, has
occur~ed.
In support of its position, Respondent relies upon the
Commission's decision of Secretary v. U. S. Steel Mining Company,
7 FMSHRC 1125 (August 1985). In its decision, the Commission, in7 FMSHRC, supra, at 1133, vacated the conclusion of the Judge,
who originally heard the case, that section 75.200, supra, was
violated even though the roof control plan was not. The
Commission's action in this regard was based upon its remand to
the Judge to make further specific findings with regard to the
requirements of the roof control plan in question. As such, the
Commission did not find,·as a matter of law, that once it h~s
been determined that a roof control plan has not been violated,
that an inquiry may not be made as to whether section 75.200,
supra, was violated. The Commission's usual practice, upon
annunciating a rule of law, is to present a thorough discussion
of the legal issues· involved along with citations to pertinent
authorities. In contrast, in U.S. Steel Mining Co., supra, the
Commission limited its decision to a discussion of the need to
ascertain the requirements of the roof control plan in question.
It did not present any discussion as to whether, as a matter of
law, a violation of section 75.200, supra, can occur absent a
violation of a specific roof control plan.
In contrast, in cases before the Interior Board of Mine
Operations Appeals,.the Board had held that it is not necessary to
provide a violation of a roof control plan to sustain the violation
where the roof is not adequately supported.
(See North American
Coal Corp., IBMA Docket No. 73-42, 3 IBMA 93 (April 17, 1979);
Ziegler Coal Co., Docket No. 73-29, 2 IBMA 216 (September 18, ·
1973).) It is significant to note that in Rushton Mining Company,
IBMA Docket No. 77-19, 8·IBMA 14 (June 23, 1977), the Board held
that the roof control plan is the minimum and it do~s not absolve
the operator of the responsibility for additional supports. These
cases have been followed by Commission Judges in cases cited by the
Petitioner (See, Secretary v. CF&I Steel Corporation, 3 FMSHRC 1870
(July 1981); Secretary v. Leslie Coal Mining Company, 3 FMSHRC 1648
(June 1981).
Furthermore, the Federal Mine Safety and Health Act of 1977,
supra, is a manifestation of the Congressional concern to enact
legislation that would have the effect of protecting miners from
the hazards of roof falls (see Secretary of Labor v. Consolidation
Coal Company, 6 FMSHRC 34,37 n.4 (January 1984)). Thus to
preclude an inquiry as to whether the statuary standard, section
75.200, supra, has been violated strictly on the basis that the
Inspector's order was predicated upon a violation of the roof

1102

control plan alone, would appear thwart Congressional intent to
have miners protected from the hazards of roof falls.
Accordingly, even though the Respondent herein did not violate
the roof control plan, an inquiry must be had as to whether the
regulatory provision, section 75.200, supra, has been violated.
As pertinent, section 75.200, supra, provides that " • • • •
the roof • • • • of all • • • • working places shall be supported
or otherwise controlled adequately to protect persons from falls
of the roof or ribs." In Secretary v. Canon Coal Company,
9 FMSHRC 667 (April 1987), the Commission set forth the test to
be used in determining whether section 75.200, supra, has been
violated. The Commission, Secretary of Labor v. Canon Coal
Company, supra, at 668 stated as follows:
Questions of liability for alleged violations of this
broad aspect of this standard are to be resolved by
reference to whether a reasonably prudent person,
familiar with the mining industry and the protective
purpose of the· standard, would have recognized the
hazardous condition that the standard seeks to prevent.
c.f. Ozark-Mahoning Co., 8 FMSHRC 190, 191-92 (February
1986); Great Western Electric Co., 5 FMSHRC 840, 841-42
(May 1983); U.S. Steel Corp., 5 FMSHRC 35 (January
1983); Alabama By-Products Corp., 4 FMSHRC 2128, 2129
(December 1982). Specifically, the adequacy of particular roof support or other control must be measured
against the test of whether the support or control is
what a reasonably prudent p~rson, familiar with the
mining industry and protective purpose of the standard,
would have provided in order to meet the protection
intended by the standard. We emphasize that the reasonably prudent person test contemplates an objective
not subjective -- analysis of all the surrounding
circumstances, factors, and considerations bearing on
the inqufry in issue. See,~., Great Western, supra,
5 FMSHRC at 842-43; U.S. Steel, supra, 5 FMSHRC at 5-6.
Respondent's position, in essence, is that the manufacturer
of the Gulick-Dobson shield never advised it that the forepole
pad has to be in contact with the roof, that MSHA had never cited
ii in the past for not having f orepole pads in contact with the
roof, and that MSHA had never required it in the past to have the
pads in contact with the roof. Respondent also relies upon testimony from Victor Tagliati; its shortwall coordinator, as well as
from Dunn and Harding to the effect that the forepole pad does
not have any support function and just serves as overhead protection from falling material. Also relied upon is Dunn's testimony
that the f orepole pads provide equivalent support whether they
are in contact with the roof or 14 inches below the roof.

1103

I do not find Respondent's arguments to be persuasive. Dunn
and Tagliati testified, in essence, that from July 1985, when the
Gulick-Dobson shields were installed until January 28, 1986, when
the citation was issued, representatives from the manufacturer of
the shields were at the mine on a daily basis. They each testified
that they were never told by the manufacturer's representatives
that it was not proper not to have the forepole pads in contact
with the roof. However, I accepted the testimony of McClure, as
corroborated by Nelson, that after he observed, on January 28,
1986, that some of the forepole pads were not touching the roof,
the manufacturer's representative, Mick Lloyd told him the forepole
pads should be in contact with the roof.
I therefore, conclude
that in fact Lloyd made this statement to McClure.
It thus might
be inf erred that since Lloyd told McClure that the f orepole pads
should be in contact with the roof, it is likely that Lloyd made
the same statement on other occasions to Respondent's employees.
Tagliati, Dunn, and Harding, all testified, in essence, that
the forepole pad does not have any support function and its purpose is for overhead protection from rocks. While the record is
clear that in creating a pressure arch the main support comes
from the canopy portion of the shield, the forepole pads are,
nonetheless, designed to support 13.9 tons. Dunn testified that
the forepole pad does not have to come in contact with the roof
and that it provides equivalent support if it is in contact with
the roof or if it is 14 inches below. On the other hand, George
Hazuzza, who presently reviews roof control plans on behalf of
MSHA, testified, in essence, that although the forepole pad can
support, in a static situation, approximately 13.9 tons, it is
uncertain how much weight the forepole pad can support if it is
not'in contact with the roof, as it would depend upon the size
and weight of material falling from the roof and the amount of
distance it would fall from the roof to the forepole pad. I find
this testimony of Hazuzza to be well reasoned, and I adopt it.
Hence, it is clear that a reasonably prudent person familiar with
the mining industry would have recognized the hazard created in
not having the forepole pad placed up against the roof. This is
especially true in the case of the four adjacent shields, whose
forepole pads were not in contact with the roof, leaving a unsupported area of approximately 160 square feet.
I have taken in to account the testimony of Tagliati that a
14 inch gap, which existed between 3 or 4 of the forepole pads and
the roof, could be bridged by constructing cribbing. Respondent
argues that the individual constructing such cribbing would be
exposed to an unsupported roof.
Inspector McClure was of the opinion that a unsupported roof is a greater hazard than the exposure
to an individual to an unsupported roof while constructing cribbing to support the roof.
I adopt the opinion of McClure.
I find

1104

that a substantial hazard to exist as the gap between the roof and
the forepole pad, can lead to unsupported roof being exposed for
the duration.of a pass by the miner which can take up to 2 hours.
Based on all the above, I conclude that Respondent violated
section 75.200, supra.
III
Petitioner has, in essence, alleged that the nature of
Respondent's violations of sect1on 75.200, supra, fall within the
purview of section 104(d)(l) of the Act, as they " ••• could significantly and substantially contribute to the cause and effect of a
coal .•• mine safety or health hazard •••• "
(section 104Cd>,
supra)
In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the ·
Commission set forth the elements of a "significant and substantial" violation as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove:
Cl)
the underlying violation of a mandatory safety standard:
(2) a discrete safety hazard--that is, a measure
of danger to safety--contributed to by the violation:
(3) a reasonable likelihood that the hazard contributed
to will result in an injury: and, (4) ~ reasonabl~
likelihood that the injury in question will be of a
reasonably serious nature.
(6 FMSHRC, supra, at 3-4.)
As discussed above, infra, I have already found that a mandatory safety standard, i.e., 30 C.F.R. § 75.200, has been violated.
Accordingly, the first element of Mathies, supra, has been
satisfied.
The evidence establishes that in the Respondent's shortwall
section the Gulick-Dobson shields create a pressure arch which
causes pressure on the face. According to the uncontradicted
testimony of McClure, at the date of inspection, there was a
caved-in area above three or four shields in the headgate entry
which indicated to him that there was "ba~ roof" at that point
and also "approximately" into the face (Tr. 104). Dunn and
Tagliati testified that the roof condition, on the section in
question on the date the citation was issued, was "good."
However, it is noted that Tagliati indicated in the area in which
the citation occurred there are pot outs on a daily basis and
there could have been pot outs on the day of the order.
Indeed,
it was the uncontradicted testimony of Shirley Rine, a MSHA Coal
Mine Inspector assigned to roof control duties, that the day
after the citation was issued, he observed "cracks and breaks
over top (sic.) shield right into the immediate face area."
(Tr. 506.) Further, it is significant to note that four adjacent

1105

shields had forepole pads not in contact with the roof, thus
leaving an area of approximately 160 feet unsupported. Moreover,
this area could have remained unsupported for the duration of a
pass which takes approximately 2 hours. In addition, I noted the
fact that 3 or 4 forepole pads were 14 inches below the roof,
thus creating uncertainty as to the weight the pad would support
if hit by falling rock. Taking a11 these factors into account, I
conclude that a discrete safety hazard was created with.a reasonable likelihood that this hazard will result in injury. It
further is clear, as established by all witnesses to whom the
question was posed, that rock falling from an unsupported roof
could seriously. injure or kill a person below.
In this connection, I conclude, based upon the credible testimony of Jordan and
McClure, that as many as five or six workers during the shift may
travel underneath the forepole extensions to fulfill their work
assignments (see finding 14). I therefore conclude that the
violation 30 C.F.R. § 75.200 was sµch a ~ature as could significantly and substantially contribute to the cause and affect of a
coal mine safety hazard.
IV
It is the Secretary's position that the violation herein
constitutes a "unwarrantable failure" to comply to the provisions
of 30 C.F.R § 75.200. The Commission, in United States Steel
Corporation v. Secretary of Labor, 6 FMSHRC 1423 (June 1984),
held that:
•••• an unwarrantable failure to comply may be proved by
a showing that the violative condition or practice was
not corrected or remedied prior to the issuance of a
citation order because of indifference, willful intent,
or a serious lack of reasonable care.
(United States
Steel Corporation v. Secretary of Labor, 6 FMSHRC,
supra, at 1437).
Petitioner argues, irl·essence, that the gap between the forepole pad and the roof .was caused by the Respondent's' poor mining
practices in not handling the remote control continuous miner
properly. Petitioner also argues that in preshift inspections it
should have been observed that 13 forepole pads were not in contact with the roof. Although the violative condition was caused
by Respondent's poor mining practices and was readily observable
at the date the citation was issued, I find that the Petitioner
has not established. that the reason for the Respondent not remedying the violative condition was due either indifference, willful
intent, or serious lack of reasonable care. The critical issue
is not what caused the violative condition, but rather the operator's motive in not correcting the violative condition. It is
noted, in this connection, that the roof control plan did not

1106

explicitly require the forepole pads to be in contact with the
roof. Further, according to the uncontradicted testimony of
Dunn, Tagliati, and Harding, for 10 years prior to the date the
citation was issued, MSHA had never written a citation for forepole pads not being in contact with the roof, in spite of,
according to the uncontradicted testimony of Tagliati, the inspectors being present when such conditions have existed. Based upon
these factors it must be concluded that operator's failure to
have forepole pads in contact with the roof was neither as a
result indifference or willful intent. Further, although I have
held infra, that a reasonably prudent person familiar with the
mining industry would have recognized the hazardous condition of
an unsupported roof caused by the f orepole pads not being in
contact with the roof, I am not deciding that this established a
serious lack of reasonable care.
(c.f. U.S. Steel Corporation,
supra.} The operator's lack of reasonable care did not reach
this high degree as it was based upon its reasonable interpretation of its roof plan, the long history of not being cited for
similar conditions, and its reasonable belief that a serious
hazard was entailed in placing supports in the gap between the
pads and the roof. Accordingly it is concluded that violation
herein of 30 C.F.R § 75.200 does not constitute an unwarrantable
failure to comply with the Act.

v
I have considered all the criteria in section llOCi> of the
Act. The Parties has stipulated ai the size of the operator's
business which I interpret as being large.
I find that there is
no evidence that the civil penalty proposed by the Secretary will
have any detrimental affect on the operator's ability to continue
in business.
I also find that the operator did demonstrate good
faith in abating t"he violation in a timely fashion.
I further
find that the operator, in violating 30 C.F.R § 75.200, was negligent to a moderate degree, but that its action did not indicate a
serious lack of reasonable care.
I .further find that the gravity
of the violation was serious with regard to the 3 or 4 of forepole pads that were approximately 14 inches lower than the roof.
I also find that the gravity of violation was serious with regard
to ~he four adjacent forepole pads not in contact with the roof.
However, I find that the gravity was only slight with regard to
the 5 or 6 of the 13 f orepole pads that were only approximately 2
inches below the roof. Based upon all these factors I find that
a penalty of $600 is appropriate.
.
Concerning order number 2696200, issued on February 3, 1986,
Petitioner has filed a motion to approve a settlement agreement
and to dismiss the case. A reduction in penalty from $700 to
$150 is proposed.
I have considered the representations and

1107

documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in Section·llOCi> of the Act. I further conclude that the modifications of the order to a section 104(a) citation is proper.
ORDER
It is ORDERED that the operator pay the sum of $750, within
30 days of this decision, as a civil penalty for the violations
found herein.
It is further ORDERED that order number 26926220 be modified
to a Section 104Ca> Citation. As modified the citation is
affirmed. The contest is thus GRANTED in PART and DENIED in
PART.

Avram Weisberger
Administrative Law Judge
Distribution:
Ronald B. Johnson, Esq., Recht & Johnson, 3000 Boury Center,
Wheeling, WV 26003 (Certified Mail)
William T. Salzer, Esq., Office of the Solicitor, U. S.
Department of Labor, Room 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
dcp

1108

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

22041

JUN 2. 21987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 86-127-M
A.C. No. 12-00109-05508

v.
Docket No. LAKE 86-128-M
A.C. No. 12-00109-05509

SELLERSBURG STONE COMPANY,
Respondent

Sellersburg Stone Mine
DECISIONS APPROVING SETTLEMENTS
Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant to section llO(a) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 820(a), seeking civil penalty assessments for 13 alleged violations of certain mandatory safety
standards found in Part 56, Title 30, Code of Federal Regulations.
The petitioner has now filed a motion pursuant to Commission
Rule 30, 29 C.F.R. § 2700.30, seeking approval of the proposed
settlements. The citations, initial assessments, and the proposed settlement amounts are as follows:
Docket No. LAKE 86-127-M
Citation No.
2633854
2633855
2633859
2633860
2844942
284494-3

Date

30 C.F.R.
Section

06/17/86
06/17/86
06/17/86
06/17/86
06/17/86
06/17/86

56.14001
56.14003
56.14001
56.11012
56.14003
56.11012

1109

Assessment

Settlement

$119.00
119.00
192.00
119.00
119.00
119.00
$787.00

$ 65.00
65.00
138.00
119.00
65.00
119.00
$571. 00

Docket No. LAKE 86-128-M
Citation No.
2844949
2844950
2844954
2844955
2844960
2844962
2844963

Date

30 C.F.R.
Section

06/17/86
06/17/86
06/17/86
06/17/86
06/17/86
'06/17/86
06/17/86

56.14003
56.14003
56.14003
56.14003
56.14003
56.11012
56.14003

Assessment

Settlement

$119.00
119.00
119.00
119.00
119.00
119.00
119.00
$833.00

$ 65.00
65.00
65.00
65.00
65.00
119.00
65.00
$509.00

Discussion
In support of the proposed settlement disposition of these
cases, the petitioner has submitted information pertaining to
the six statutory civil penalty criteria found in section llO(i)
of the Act. In .addition, the. petitioner has submitted a full
discussion and disclosure as to the facts and circumstances
surrounding the issuance of the violations in question, and a
reasonable justification for the reduction of the original
proposed civil penalty assessments.
Conclusion
After careful review and consideration of the pleadings,
arguments, and submissions in support of the motion to approve
the proposed settlement of these cases, I conclude and find that
the proposed settlement dispositions are reasonable and in the
public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30,
the motion IS GRANTED, and the settlements ARE APPROVED.
ORDER
Respondent IS ORDERED to pay civil penalties in the settlement amounts shown above iri satisfaction of the citations in
question within thirty (30) days of the date of these decisions
and order, and upon receipt of payment by the petitioner, these
proceedings are dismissed.

~~

. Koutras
rative Law Judge

1110

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S.
Department of Labor, 230 South Dearborn Street, 8th Floor,
Chicago, IL 60604 (Certified Mail)
Fred W. Banks, Vice President, Sellersburg Stone Company,
1019 E. Utica Street, Sellersburg, IN 47172 (Certified Mail)

/f b

1111

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

JUN 221987

DISCRIMINATION PROCEEDING

DANIEL S. ALEXANDER,
Complainant

Docket No. WEST 85-106-DM
MD 84-60

v.
FREEPORT GOLD COMPANY,
Respondent

.

....

Jerrett Canyon Project

DECISION
Appearances:

Thomas L. Stringfield, Esq., Elko, Nevada,
for Complainant;
R. Blain Andrus, Esq., Steven, G. Holloway, Reno,
Nevada,
for Respondent.

Before:

Judge Lasher

This proceeding arises under Section 105{c){3) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
~' (1982) {herein "the Act").
Complainant's initial complaint
with the Labor Department's Mine Safety and Health Administration
CMSHA) was dismissed. Both parties were well represented at the
hearing. ~/
Complainant contends that he was discharged by Respondent on
January 3, 1984, from his position as a permanent mill employee
because of his engagement in activities protected under the
Federal Mine Safety and Health Act.of 1977 {the Act). Respondent
contends that Complainant was discharged for his excessive
absenteeism and, secondarily, because of his accident rate.
FINDINGS
General
The correct name of Respondent is Freeport-McMoran Gold
Company. It is a subsidiary of Freeport McMoran, Inc., a
Delaware corporation authorized to do business in the State of

!/ The hearing was held during a 3-day period, October 27, 28 and
29, 1986. For each day of hearing there is a separate transcript
beginning with page one. Accordingly, transcript citations will
be prefaced with "I" "II" and "III", respectively, in this
11
11
11
11
manner: "I-T.
,
II-T.
and 11 III-T.

1112

Nevada (I-T 43-44). Respondent owns and operates the subject
open pit gold mine which is located 52 miles northwest of Elko,
Nevada.
At the time the events pertinent herein occurred its
payroll was approximately 320 and its current payroll is approximately 420. Ore tonnage figures for the two periods (then and
now) are 3,200 tons and 4,000 tons, respectively (I-T. 43, 48).
During 1983, the ore was brought from the mine, which was 7-9
miles from the mill at which Complainant worked, in haul trucks
and placed in a dump; from the dump a loader would carry the ore
from the dump and deposit it in an area where it was placed on
belts and carried into the mi~l where it was crushed (I~T. 49).
During the pertinent period (1983-1984) the mine operated
24-hours per day.(3 8-hour shifts) seven days a week (I-T. 45)
and the employees were not represented by a union CI-T. 51).
The Complainant, Daniel S. Alexander, commenced employment
with Respondent on December 20, 1982, as a temporary employee.
On February 14, 1983, he became a regular employee in the mill
(where approximately 100 employees worked at the time) and on
April 2, 1983, he was ad~anced to "Technician D" which was the
first step in a five-step progression to becoming a Mill Operator
Specialist CI-T. 47). He was still in the Technician D position
at the time of his discharge some eight months later on January
3, 1984.
Complainant's immediate supervisor for most of 1983 was R.T.
Albright, shift foreman. (I-T. 50). His immediate supervisor for
the last two months of his employment and when he was discharged
was Mill Foreman Thomas E. Watkins (I-T. 65).
During most of.
1983, the next-level supervisor above Albright was Edward G.
Walker, General Mill Foreman, and above Walker was the Mill
Superintendent, Richard Johnson (I-T. 50, 51). Above Mr. Johnson
in management echelon in most of 1983, but not at the time of
Complainant's discharge was the Mill Manager, David J. Collins.
Protected Activities
Complainant engaged in various activities which are
protected by the Act prior to his discharge. Thus he had complained that a radial stacker needed to be repaired (I-T. 91-92,
114-120). Complainant also testified, in very general terms,
that he had filed two written safety complaints, at unspecified
times. The first complaint was a suggestion to modify a carbon
transfer line so that it would not "blow off" and scald an
operator. Complainant was unable to recall the nature of the
second written complaint. Complainant also testified he made
verbal complaints about the radial stacker and about putting up
guards around the feeders CI-T. 118-120); he was but one of
several (I-T. 88) who made such complaints about the stacker.
Complainant was not shown to be a leader or vanguard of safety
militancy at the mine or even that he was the most vocal, or
particularly vocal, spokesman in safety matters.

1113

While Complainant engaged in some protected activities, it
is also. noted that the quality of such were not heated, controversial or the type which ordinarily would be provocative or
invitatory of retaliation. Nor does this record reveal any
immediate or spontaneous reaction on the part of any of
Respondent's foremen or management personnel to Complainant's
actions demonstrating hostility or anti-safety animus.
Respondent's Absenteeism Policy
Respondent's "Employee Handbook" (Exhibit C-2) is issued to
new employees. Title III, Benefits, Section I, "Salary
Continuation for Disability" thereof states inter alia:
"All permanent full-time employees upon the completion
of 30 consecutive days of Company recognized service
become eligible to receive continuing income during
periods of short term disability from illness or offthe-job injuries under the Company's wage and salary
continuation plan."

x

x

x

x

x

x

x

x

x

x

x

If you are unable to report for work as scheduled, you
are expected to notify your supervisor promptly. Except for extenuating circumstances, failure to notify
your supervisor will result in loss of benefits.

x

x

x

x

x

x

x

x

x

x

x

"Excessive use or abuse of this program for minor illness
may result in a review by management to determine whether
or not the employee may continue employment. Two (2)
day's absence for minor illness each three months will
be considered as excessive absence and will result in a
review. n
Title VII, Personnel Procedures, Section E "Attendance and
Absenteeism" states:
"Employees are expected to be at work on all working
days except in the case of illness or other excused
absences.
If you need to be absent from work, you are
required to obtain authorization from your immediate
supervisor. Excessive absenteeism for any reason will
not be tolerated and you will be subject to appropriate
disciplinary action. You will be notified whenever your
attendance is unacceptable," (emphasis added).
Title v, Problem Solving System, Section B, "Basic Areas
Requiring Discipline" of the Employee Handbook states in
pertinent part:

1114

"l. Definitions of Minor Rule Violations. These are
violations which in themselves, are not reason for discharge. However, repetitive violation of these rules
will result in progressively more severe discipline and
may end in discharge. The following is illustrative of
minor violations: a) Tardiness or absenteeism (page 27,
T.E. C2)."
The Employee Handbook is but a "guide" to Respondent's
policy (I-T. 51, III-T. 38, 40, 49, 99).
Summary of Complainant's Absences
February 6, 1983. Reason: Sick. This absence occurred while
Complainant was a temporary and eight days before be became a
permanent employee.
April 15, 1983.

Reason: Sick-Flu.

AJ2ril 20i 1983.

Reason: Fixing broken windows.

AJ2ril 23i 1983.

Reason: Sick.

A:eril 24i 1983.

Reason: Sick.

May 7, 1983.

Reason: Complainant's father-in-law died.

June 2i 1983.

Reason: Flu.

June 25i 1983.

Reason: To JCepair windows.

November 17, 1983.

Reason: Sick.

November 18i 1983.

Reason: Still sick.

All 10 of these absences were "excused" absences CI-T. 7-8).
Complainant, however, was absent on January 1, 1984 as a result
of a "Driving Under the Influence" incarceration; this'absence
was not excused CIII-T. 49) and was a "major" rule violation
CIII"-T. 75, 76, 100). In his testimony CIII-T. 107), Complainant
conceded the existence of alcohol and marital problems and such,
as hereinafter noted, were of some concern to Respondent's
management who took various actions to assist Complainant therewith. The record demonstrates that the alcohol problem at least
extended up to the time of his discharg.e.
Com:elainant's Absence on January li 1984.
Complainant was arrested by the Elko County Sheriff's
Department for DUI (Driving Under the Influence> at approximately
12:30 a.m. on January 1, 1984, and booked at 1:05 a.m. for DUI
CEx. c-4>.

1115

The booking sheet (Ex. C-4) reflects that he called his
foreman, Tom Watkins at 1:20 a.m. ~/
Complainant's version of the events following his arrest
follows:
Q.

What did you do after you were arrested?

A.

I made a phone call to my supervisor Tom Watkins.

Q.

How was that phone call made?

A.

It was made in jail, the jailer dialed the number and
handed the phone to me.

Q.

Describe the conversation with Mr. Watkins?

A•. I told him that I had been arrested for D.U.I. I was
trying to make bail to be to work on time in the morning
and I asked him if I should go ahead and call Freeport
and tell them I wasn't going to be there or to wait and
see if I could make bail and get there on time or get
there at all. And he said if you are not there I'll
know where you are at and so I just told Tom I would get
there as soon as I could.
Q.

At that point, did you think you were going to be absent
that day?

A.

I wasn't for sure,

Q.

Did you make any other phone calls to Tom Watkins that
morning?

A.

After I was arrested, I went home and I called Tom and
it was already after the shift had started and I told
him that I had made bail and that I wanted to report to
work, I would have a tardy, but

Q.

You had-- had you ever gotten a tardy before?

A.

No, I felt it would be better to have a tardy than an
absentee and I would get there as soon as I could and
Tom said, well, don't worry about it, just come in tomorrow on your regular scheduled shift, so I did.

Q.

Did you come in the next day on your regular shift?

A.

Yes, I did.

I

was hoping I wold get out in time.

I worked full shift on January second.

ll

While Watkins denied receiving such telephone call CI-T.
53-54>, such denial is not credited in view of the testimony of
the arresting officer, Carl L. Marr, and the booking officer,
James L. Black, to the contrary (I-T. 74, 77-79). Complainant's
account of this conversation CII-T. 116) is accepted.
1116

Q.

What happened after the shift?

A.

Directly at the end of the shift, I believe it was Tom
Watkins who handed me a slip 3; saying that I was on
suspension and not to return to the mill site until
January fourth.

Q.

You heard Tom Watkins say you never called him that day
at all. Did you hear him testify to that effect?

A.

Yes, I heard him say that.

Q.

Is there any question in your mind you talked .to him
that day?

A.

No, there is not.

(II-T. 116-117).

Complainant's Accident Record
March 13, 1983. While using his 992 loader, Complainant
accidentally tore the l~dder off the loader (Ex. c-3-VI).
April 6, 1983. Complainant's knee was bruised and injured when a
cable snapped while he was helping put a feed chute in place.
May 1, 1983. Complainant sustained minor (small) cyanide burns
on both arms while taking cyanide flow meters apart to clean
them.
June 21, 1983. While not wearing a face shield, Complainant had
cyanide sprayed in his face.
July 17, 1983. The tip of Complainant's little finger was
smashed while he was placing a piece of rebar under the wheels
of a radial stacker.
December 21, 1983. Complainant bruised his back when he slipped
and fell on ice while climbing out of a bridge feeder. ~/

Ex. R-17.
While Complainant contends that the reports of the six
accidents he was involved in in 1983 were safety complaints,
these reports were completed by Respondent's management personnel
on standard forms and in the course of Respondent's normal
procedure for documenting accidents. The strong preponderance of
the evidence is that the accident reports are not safety
complaints. If Complainant's logic were carried out to its
normal conclusion the more accidents a miner were involved in the
more protected safety activities he would be seen to have engaged
in. The concept of this argument has no credible foundation in
the record and is rejected. Respondent is found justified in
considering Complainant's overall accident record as part of its
determination to discharge Complainant following the DUI absence
on January 1, 1984.
3/

4/

1117

Complainant's Counseling and Disciplinary Record
on.May 13, 1983, Complainant's performance was reviewed with
him by his immediate supervisor, shift foreman R.T. Albright, and
the mill general foreman, E.G. Walker, and Complainant was
counseled concerning his excessive absenteeism CII-T. 204-207,
219-221, 227).
On June 13, 1983, the Complainant was given a letter of
reprimand for excessive absenteeism by the mill general foreman,
E.G. Walker. The Complainant was advised therein that it was his
responsibility-to attend work regularly, he was notified that it
would be necessary for him to provide a doctor's certification
verifying any future illness, and he was warned that if he failed
to fulfill his responsibilities further disciplinary action up to
and including discharge would be taken CII-T. 80, 209-210,
221-225). ~/
On June 27, 1983, the Complainant was referred by Respondent
to the Community Mental 'Health Center for counseling. The·
Complainant was referred by a counselor, CR.D. Herman, Ph.D.
Cand, M.F.C.) but refused to enter an alcohol and drug rehabilitation program at Truckee Meadows Hospital in Reno, Nevada CII-T.
211-212, 226-227).
Complainant was counseled by the mill manager, D.J. Collins,
on September 26, 1983, about his excessive accident rate. It
appeared at that time that Complainant had had a number of
personal problems and that such were probably the cause of his
accidents CII-T. 210, 211, 227-232).
By memo dated November 23, 1983 (Ex. R. 16: III-T. 16-18),
Complainant was given the following warning by George D. Harris,
the general mill foreman at the time, concernirrg the subject of
absenteeism:
It is the responsibility of every employee to maintain
his/her personal health in such a manner as to provide
for regular attendance at work. Your absence of November
18, 1983 was the·seventh (7th) separate absence since
April 15, 1983. You have been absent with'pay for a
total of seven (7) days since that date.
The company is not questioning whether you were in fact
sick or disabled on the above occasions: however, your
absenteeism is disruptive to your fellow workers and to
the efficient operation of your work group.
5/ As above noted, Title v, Problem Solving System, Section B,
"Basic Areas Requiring Discipline" of the Employee Handbook (Ex.
C-2 at p. 27) provides that minor rule violations, if repetitive,
can result in progressively more severe discipline and may end in
discharge.
"Absenteeism" was specifically listed as an illustration of this principle.

1118

This letter is being given to you iu order that you will
be aware of your attendance record and to ilnp:-ess upon
you that excessive absenteeism reduces the value of an
employee to the company, and in addition, to notify you
at this time that it will be necessary for you to bring
a doctor's certification verifying any future illness to
insure pay for any such absence.
I hope that it will
help you to correct your absenteeism problem and that
further discipline will not be necessary.
If you fail to fulfill your responsibility as an employee
to maintain your personal health in such a manner as to
provide for your regular attendance at work, then further
disciplinary measures will be taken up to and including
discharge."
Respondent's Termination Report dated 1/4/84 and signed by
D.S. Barr (then Mill Operations Manager) pertinent to Complainant
reflects that the "Reason for Separation" was "Absenteeism/Lateness," that the effective date of Complainant's dismissal was
January 3, 1984, that Complainant's Attendance and Cooperation
were "unsatisfactory," that his initiative was "fair," and that
his Job Knowledge and Quality of Work were "satisfactory". Under
the heading "Additional Comments" the following notation appeared: "Recommended Mental Health Counseling & Alcohol & Drug Abuse
Counseling, general negative response. Dismissed for unexcused
absence, DUI, after written warning for absenteeism. Also a
safety problem." (Ex. R-18(a)).
While Complainant had never been disciplined for engaging in
unsafe practices, he was seen as being a "safety problem" on the
basis of the various accidents he had been involved in during the
year of his employment CII-T. 37). Prior to the discharge of
Complainant, Respondent had not discharged any other employee
solely for "excused absences." However, absenteeism can be
excessive, whether or not excused (Employee Handbook, Ex. C-2,
Sections E and I; I-T. 61-64; III-T. 73).
Douglas Scott Barr, Respondent's mill operations manager at
the time, who effectively recommended Complainant's discharge
(II-T. 86; III-T. 65, 66,· 80, 93), credibly and effectively gave
·his reasons for this decision:
"Q.

Let me go back. You said you took into account
the number.of incidences. Did you also take into
account the type of absences that were reflected
in the file?

A.

We did. Primarily they were minor infractions,
each one. It is just that there was a repetitve
series, substantial number of them, there were
several that were at best questionable. But, yet
they were excused and minor in their own right.
The situation that called it to our attention, there
was a major violation we were considering an unexcused absence, he hadn't any unexcused absences
there before."
1119

Q.

What unexcused absences are you referring to?

A.

The one on the first of January.

x

x

x

x

x

x

x

x

x

x

x

x

Q.

Why did you consider the D.U.I. in this case
particularly grievous?

A.

Well, first off, it's unreported, it's-- it's in a
situation where it's a common problem, not saying
·common, but one in which we take a very great care
to see if we can get people out on the first of
January and its's a difficult time of the year for
us so we need all the people we can get.
So, a
person's absence, unexcused, unscheduled and just
unexcused, gives us gret difficulty at that point.
The subject had just went through a warning period
in November, which I was aware of and concerning
his absenteeism, and a later time it was apparent
under the continuation of the type of absences,
that we had a problem before, an individual had
been recommended for counseling, considering
alcoholism, I'm going to say substance abuse,
that's a better term.

Q.

Did you consider that there-- that the fact is
that you had stated in your additional comments,
there was negative, general negative response to
the recommendation for mental health counseling
and alcohol and drug abuse counseling, particularly significant in relationship to the D.U.I. on
January l?

A.

Yes, I think it is. The alcohol abuse, substance
abuse, was an underlying issue in quite a few of
the items that were discussed.
(III-T. 49-51).
CONCLUSIONS AND DISCUSSION

In order to establish a prima facie case of discrimination
under Section 105(c) of the 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 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 (3d Cir., 1981); and
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 in no part motivated by
protected activity.
If an operator cannot rebut the prima facie
case in this manner it may nevertheless affirmatively defend by
proving that Cl) it was also motivated by the miner's unprotected

1120

activities, and {2) it would have taken the adverse action in any
event for the. unprotected activities alone. The operator bears
the burden of proof with regard to the affirmative defense. Haro
v. Magma Copper co., 4 FMSHRC 1935, 1936-38 {November 1982). The
ultimate burden of persuasion does not shift from the
complainant. Robinette, 3 FMSHRC at 818 n. 20. See also Boich
v. FSMHRC, 719 F.2d 194, 195-96 {6th Cir. 1983); DOnovan v.
Stafford Constr., Co., 732 F.2d 954, 958-59 CD.C. Cir. 1984)
{specifically approving the Commission's Pasula-Robinette test);
and Goff v. Youghiogheny & Ohio Coal Company, 8 FMSHRC 1860
{December 1986) •
It goes without saying that the concept of discrimination
to be dealt with here is relatively narrow, i.e., that contemplated by the 1977 Mine Safety. Matters-or allegations-of
general unfairness, failures, or inequities in the employeeemployer relationship are not subject to remedy under this.Act.
While I have found that Complainant marginally engaged in
protected activities, there is no nexus between such activities
and the adverse action {discharge) taken by Respondent.
There is little, if any, direct or indirect evidence of
discriminatory motivation in the record, bearing either on Cl)
Respondent's purposes in discharging Complainant, or {2)
Respondent's attitude and approach to the safety activities of
its employees. The great weight of the probative, substantial
evidence supports Respondent's position t.hat it discharged
Complainant because of excessive absenteeism primarily, and his
accident record secondarily, with some documented and sincere
attendant concern for what it perceived to be alcohol/marital
problems in Complainant's life CIII-T. 107). Although Complainant attempted to establish that Respondent discouraged safety
reporting or accident reporting by giving awards and dinners to
employee groups having the best accident-free record, Complainant
himself testified:
"It was Freeport's policy, as far as anytime you so much
as got a scratch you were to report it as an accident to
keep similar accidents from happening, if possible and
point out hazards and just also to cover yourself in
case-- they give you an example,. somebody got a scratch
and got blood poison and the guy didn't turn ii in and
ended up paying for it out of his own pocket." CT. 118).
Another Complainant's witness, when asked whether he had
observed an atmosphere "discouraging the reporting of minor
accident or complaining about safety" (I-T. 107), replied:
"In a sense, it was more of an implied discouragement, if
people reported too many minor accidents, scraped fingers,
if they got up to a certain amount, they were considered
unsafe and had to go to special training or had to go to
counseling with being an unsafe worker."

1121

Respondent established that its practices were intended to
and reward good safety practices and that its
activities in this respect were common throughout the industry
(II-T. 189).
encourag~

c~~plainant's contention that Respondent was engaged in
conduct calculated to discourage safety reporting is rejected.
Establishment of discriminatory motivation is difficult and
seldom accomplished through direct proof. Secretary of Labor on
behal! of Johnny N. Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508
(1981), reconsideration den. 3 FMSHRC 2765 (1981); Brazell v.
Island Creek Coal Company, 4 FMSHRC 1455 (1982). Here, Complainant did not establish through any probative or convincing
evidence that Respondent had a pattern or policy, formal or
otherwise, of retaliating against miners for making safety
complaints. Again, although the contention was raised, there was
no probative substantial evidence that Respondent had ever retaliated or taken adverse action against safety complainants in
other matters which might indicate a general pattern or background of discriminatory conduct. A history of management
hostility to safety complaints, while argued, was not to any
degree of persuasion established on this record. The record is
devoid of admissions or statements by Respondent's management
personnel indicating an anti-safety reporting animus. Nor are
there writings, accounts of conversations, or oral statements
made by Respondent's foremen, or other officers, from which the
existence of a discriminatory animus can be inferred. There is
no evidence of resentment or antagonism on Respondent's part
traceable to any of Complainant's activities protected under the
Act. Complainant's evidence, apparently of necessity, was
general and unpersuasive in these regards. Further belying the
existence of discriminatory motivation were Respondent's various
efforts to assist Complainant with his backgroqnd difficulties.
In short, I find no probative evidence from which it can be
determined or inferred that Respondent's motivation, solely or in
part, was discriminatory toward Complainant for his engagement in
any protected activity. It is concluded that Complainant failed
to establish a prima facie case of discrimination recognizable
under the Act.

Even assuming arguend6, and such is not the situation here,
that Complainant did establish that part of Respondent's
motivation was his engagement in protected activities, based on
Complainant's absence and accident record and its own impressive
record of prior counseling and warnings to Complainant in 1983,
Respondent established a clear and strong justification for
discharging Complainant for his unprotected activites and that
such action was taken and would have been taken for such unprotected activities alone.
See Gravely v. Ranger Fuel Corp., 6
FMSHRC 799 (1984).
ULTIMATE CONCLUSIONS
Complainant failed to establish by substantial probative
evidence that his discharge was motivated in any part by his

1122

engagement in protected activities. Thus, Complainant failed to
establish a prima facie case of discrimination under Section
105Cc> of the Act.
Even assuming arguendo that Complainant did establish by a
preponderance of the reliable, probative and substantial evidence
that his discharge was motivated in some part by his protected
activities, Respondent clearly showed by a strong preponderance
of the evidence that it was motivated by Complainant's unprotected activities, i.e., his absenteeism and accident record, and
that it would have taken the adverse action (discharge of
Complainant) in any event for such unprotected activities.
ORDER
Complainant having failed to establish Mine Act
discrimination on the part of Respondent, his complaint is
DISMISSED.

~uP. 4'; ~~~~-{.,~fi -Michael A. Lasher, Jr.

Administr~tive Law Judge

Distribution:
Thomas L. Stringfield, Esq., 575 Fifth Street, Elko, NV
(Certified Mail>

89801

R. Blain Andrus, Esq., Freeport Gold Company, P.O. Box 1911,
Reno, NV 89505 (Certified Mail)

/bls

1123

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

June 22, 1987

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

CIVIL PENALTY PROCEEDING

...

Doc~et No. PENN 87-102
A. C. No. 36-00926-03658

Homer City Mine

v.

HELEN MINING COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

The Solicitor has filed a motion to approve settlement of
the violation involved in this cases. The original assessment
was $800 and the proposed settlement is for $500.
The subject order was issued for a vi~lation of 30 C.F.R.
§75.200 when an MSHA inspector detected six missing roof bolts
and one loose roof bolt at the M butt construction overcast in
the Muddy Run area. The Solicitor represents that a reduction
from the original assessment is warranted because the special
assessment narrative erroneously. stated that a "foreman was observed in the unsupported area." The inspector, however, did not
observe individuals working under unsupported roof, and did not
charge such conduct in his order.
In light of this information regarding the discrepancies
between the assessment narrative and the factual basis for the
order, I approve the recommended settlement.
Accordingly, the motion to approve settlement is GRANTED and
the operator is ORDERED TO PAY $500 within 30 days of the date of
this decision.

Paul Merlin
Chief Administrative Law Judge

1124

Distribution:
William T. Salzer, Esq., Office of the Solicitor, U. S. Department of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 {Certified Mail)
Ronald B. Johnson, Esq., Recht & Johnson,. 3000 Boury Center,
Wheeling, WV 26003 (Certified Mail)
Lynn B. Harding, Safety Director, Helen Mining Company, R.D. #2,
Box 2110, Homer City, PA 15748 (Certified Mail)
Michael H. Holland, Esq., UMWA, 900 15th Street, N.W.,
Washington, DC 20005 (Certified Mail)
I gl

1125

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

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

JUN 2 21987

CIVIL PENALTY PROCEEDING

.

v.

Docket No. WEST 86-14-M
A.C. No. 02-02253-05501
Mohave Concrete

MOHAVE CONCRETE & MATERIALS
INC.,
Respondent
DECISION AFTER REMAND
Appearances: Marshall P. Salzman, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco, California;
for Petitioner;
Mr. Larry Rinaldis, Mohave Concrete & Materials,
Incorporated, Lake Havasu City, Arizona,
pro se.
Before:

Judge Morris

On November 18, 1986, the Federal Mine Safety and Health
Review Commission remanded the captioned case and directed the
judge to consider either the sufficiency of the cause asserted or
the underlying merits of the case.
Subsequently Chief Administrative Law Judge Paul Merlin
ruled that the operator should not be held in default. He
further assigned the case to the undersigned for a hearing on the
merits.
1987.

The hearing took plAce in Las Vegas, Nevada on February 19,
The parties waived their right to file post~trial briefs.
Issues

The issues presented are whether the violations occurred; if
so, what penalties are appropriate.
Stipulation
At the commencement of the hearing the parties agreed the
Secretary could present evidence of one unguarded machine part
and one junction box. In turn this evidence would be generally
applicable to the similar remaining citations (Tr. 6, 7).

1126

They further agreed that respondent is a small operator
without any adverse history (Tr. 8-10).
Summary of the Case
Ronald W. Barri, an MSHA inspector for eight years,
inspected respondent's plant on June 5, 1985 (Tr. 15, 16).
The plant was in operation and no one claimed it had been
shut down or was being repaired. When he arrived on the site he
talked to the dispatcher, who directed him to the foreman (Tr.
16, 17). The foreman shut down the plant before beginning the
inspection (Tr. 17).
In connection with Citation 2366229 the inspector observed
that the tail pulley of the main plant conveyor was unguarded.
Any employee servicing or cleaning the area could come in contact
with it CTr. 18; Ex. Pl5). At the time an employee was removing
large rocks and roots from the conveyor. If a person was pulled
into the tail pulley he could be severely injured (Tr. 19).
The State of Nevada had inspected respondent three weeks
before the MSHA inspection (Tr. 19, 20). The state representative reported to MSHA that the plant was in bad shape.
Citations 2366229, 2366232, 2366233, 2366234, 2366235,
2366236, 2366237, 2366238, 2366241 and 2366244 all relate to the
unguarded movable machine parts. -·
Citation 2366236, involving the crusher flywheel and drive,
of the exposure involved a more serious hazard than the
remaining citations CTr. 20, 21; Ex. PS, P6). The gravity of the
remaining conditions was pretty much the same (Tr. 21). Further,
the observability and duration of the conditions were about the
same (Tr. 22) •
~ecause

Respondent abated the violations within the specified time
but the new guards were insufficient. They did not prevent a
person from reaching behind and contacting the pulleys (Tr. 22).
The described condition of the unguarded machine parts
resulted in the issuance of ten citations for the violation of 30
C.F.R. § 56.14001. The cited regulation provides as follows:
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.
Citation 236,231 relates to a junction box for the feed
conveyor drive motor. The box did not have a cover (Tr. 24; Ex.
Pl7). If a short occurred the conveyor frame could be energized.
This 440 volt exposure could electrocute the four workers in the

1127

area who might contact the frame. The junction box, which was
readily observable, was five or six feet above the ground (Tr.
25). The foreman indicated this condition had existed for some
time {Tr. 25, 26).
Citations 2366231, 2366239, 2366240, 2366242, 2366243,
2366245 and 2366246 all involve junction boxes with the same
conditions as previously described (Tr. 26). Exhibit Pl4 shows a
switch on the three-quarter inch rock conveyor. The switch was
in use and energized (Tr. 26, 27).
The condition of the junction boxes caused the inspector to
issue seven citations for the violation of 30 C.F.R. § 56.12032.
The cited regulation provides as follows:
Inspection and cover plates on electrical equipment and
junction boxes shall be kept in place at all times except during testing or repairs.
The inspector further observed a well traveled path,
equivalent to a walkway, alongside the feed conveyor for the main
plant. The failure to provide such an emergency stop cord
resulted in the issuance of Citation 2366230 for a violation of
30 C.F.R. § 56.9007. The cited standard provides as follows:
Unguarded conveyors with walkways shall be equipped with
emergency stop devices or cords along their full length.
Two employees were exposed to the hazard, one was directly
alongside the conveyor. A worker in this· position could contact
the moving conveyor, or the troughing idlers (Tr. 27, 28). Death
or serious injury is a probable result from this hazard. It was
indicated the condition had been there for several years <Tr.
28).
The inspector saw where the power cables enter into the
metal switch gear boxes. The boxes were not equipped with proper
fittings CTr. 29, Ex. Pl4). The condition could cause the metal
frame to cut through the insulation of the cable thereby causing
a short. If a short occurred anyone touching the box could be
electrocuted. Since the cables were in good condition it was
unlikely that an accid~nt would occur (Tr. 30).
The above condition resulted in the issuance of Citation
2366247 alleging a violation of 30 C.F.R. § 56.12008. The cited
standard provides as follows:
Power wires and cables shall be insulated adequately
where they pass into or out of electrical compartments.
Cables shall enter metal frames of. motors, splice boxes,
and electrical compartments only through proper fittings.
When insulated wires, other than cables, pass through
metal frames, the holes shall be substantially bushed
with insulated bushings.

The mine had been in operation for several years before the
inspection but the company had not notified MSHA of its
activities (Tr. 31).
This situation resulted in the issuance of Citation 2366258
alleging a violation of 30 C.F.R. § 56.1000. The cited standard
provides as follows:
The owner, operator, or person in charge of any metal
and nonmetal mine shall notify the nearest Mine Safety
and Health Administration and Metal and Nonmetal Mine
Safety and Health Subdistrict Off ice before starting
operations, of the approximate or actual date mine operation will commence. The ~otification shall include the
mine name, location, the company name, mailing address,
person in charge, and whether operations will be continuous or intermittent.
When any mine is closed, the person in charge shall
notify the nearest subdistrict off ice as provided above
and indicate whe.ther the closure is temporary or
permanent.
At the time of the inspection the plant was running. In
addition, the inspector saw the conveyors in motion, they were
also shipping cement at a nearby batch plant. Further, an
employee was picking rocks of E the conveyor and another was
running a loader feeding the plant. An ~dditional worker was
running a bulldozer pushing sand (Tr. 46, 47).
When he appeared the day following the inspection Mr.
Polidori didn't claim the plant hadn't been in operation nor did
he claim there had been a test run that day CTr. 51).
Quinto Polidori, President of Mohave Concrete, testified for
the respondent. He indicated the company also has a plant at
Lake Havasu City, Arizona. They have been in operation for 12
years and never been cited (Tr. 69).
The plant involved in the instant case has been in operation
for four and one-half years. The company does its best to keep
and maintain a safe operation. The company received its lease
from the Fort Mojave Indians in 1981. At that time he was told
that no permit was required CTr. 70).
At the time of this inspection the plant was not in operation. The jaw crusher had been removed. Further, the rock had
been emptied from the hopper and it was picked up by hand (Tr.
71). The condition the inspector observed was temporary since
they were emptying the hopper by hand {Tr. 71).
The company has had no difficulty with the lessor Indian
Tribe (Tr. 721 Ex. R6).

1129

The parties stipulated that if Mr. Rinaldis testified he
would indicate that the company previously had some incompetent
people w6rking for it. Further, he would testify that Mr.
Polidori is a safe operator {Tr. 7S).
Witness Polidori further explained his drawing showing his
conveyor and hqpper {Tr. 77, 78; Ex. RS). At the time the jaw
crusher was broken down and flat on the ground (Tr. 78). The
plant was not in operation (Tr. 86, 88, 100)
D'uring the inspection the conveyor was on the ground. The
workers put the conveyor down to empty the hopper {Tr. 80). Also
the guard was off so the machine could be tested {Tr. 81, 82).
The plant had been shut down three or four weeks, after the
crusher broke down. This occurred after the state inspection
CTr. 83) •
When the operation is run without a crusher it is referred
to as a pit run. Since materials were inside the hopper, they
did not operate as a pit run (Tr. 84).
In Citation 2366236 the guard was on the ground because repairs were being made (Tr. 87). The witness denies there is a
part that should be guarded in Citation 2366237 (Tr. 89; Ex. P7,
P9). In connection with Citation 2366241 there was a guard but a
worker was changing the whole setup (Tr. 90; Ex. P9).
Concerning Citation 2366231 there was a cover but it had
been taken off for repairs (Tr. 91).
Evaluation of the Evidence
Concerning the unguarded machine parts the· pivitol issue
focuses on whether the plant was in operation at the time of the
inspection. The inspector's testimony is clear that it was
functioning.
Oh the other hand, respondent's evidence is, at
times, obscure.
I find from the.cred1bl~ evidence that the plant was in fact
in operation on the day of the inspection.
Inspector Barri's
testimony was precise on this issue; the employee was picking
rock from the conveyor. Another worker was operating a loader;
some conveyors were in motion (Tr. 46, 47). The owner, who was
not present at the site until the following day, never claimed
the plant was not in operation {Tr. Sl). However, I agree with
respondent's president, Quinto Polidori, that an unguarded part
was being repaired on the day of the inspection. The presence of
the worker picking rocks from the conveyor confirms this view.
As a result of the repairs a worker could not be exposed and it
is appropriate to vacate Citation 2366236 (Tr. 87; Ex. PS, P6).

1130

The remaining guarding citations should be affirmed as the
workers were.exposed to these moving unguarded parts.
The citations relating to the cover plates should also be
affirmed. All of the cited junction boxes lacked cover plates.
Respondent claimed one of the boxes was being repaired. However,
no credible evidence supports this assertion.
In addition,
respondent's witness was not present on the day of the
inspection.
The citation concerning the lack of a stop device along the
conveyor should be affirmed. The conveyor did not have a walkway
as such but Inspector Barri observed a well traveled path
adjacent to the conveyor. Such a path would be equivalent to a
walkway within the terms of § 56.9007.
Concerning the power cables entering the metal gear box the
evidence establishes that the metal frames lacked proper fittings.
The citation should be affirmed.
Respondent asserts that since it was a lessee on an Indian
reservation it did not have to notify MSHA of its activities.
Respondent's argument is contrary to the law. A general statute
in terms applicable to all persons includes Indians and their
property interests. FPC v. Tuscarora Indian Nation, 362 U.S. 99,
80 S. Ct 543, 4 L. Ed. 2d 584 (1960); Donovan v. Coeur d'Arlene
Tribal Farm, 751 F.2d 1113 (1985).
The citation alleging respon~ent's failure to notify MSHA of
its activities should be affirmed.
Civil Penalties
The statuto~y criteria to assess a civil penalty is contained in Section llOCi> of the Act, now 30 u.s.c. § 820(i). It
provides as follows:
The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil
monetary penalties, the Commission shall consider the
operator's history of previous violations, the appropriateness of such penalty to the size of the business of
the operator charged, whether the operator was negligent,
the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated good fai~h of the person charged in attempting to
achieve rapid compliance after notification of a violation.
In connection with the above guidelines it appears that
respondent has no adverse prior history. However, this could
readily arise from the operator's failure to report its activities to MSHA. The parties agree as to the small size of the
operator (Tr. 10); hence, the proposed penalties appear appropriate. The violative conditions involving the moving machine

1131

parts, cover plates, conveyor and bushings were open and obvious.
The operator must, accordingly, be considered as negligent. The
failure to notify MSHA should als6 be considered as negligence on
the part of the operator. The operator had another site not
located on an Indian reservation. As sucih he should have inquired as to his rights as a lessee of Indian property. Whether
the imposition of penalties would adversely effect the operator
is an affirmative defense, Buffalo Mining co., 2 IBMA 226 (1973);
Associated Drilling, Inc., 3 IBMA 164 (1974). Respondent offered
no evidence on this issue. Except for the reporting requirement
the gravity of the remaining violations is moderate.
I credit
the operator with statutory good faith.
The company attempted to
abate the conditions, although the inspector later found its
guarding of the machine parts was inadequate. The deficiency was
then corrected.
On balance, I believe the civil penalties set forth in the
order of this decision are appropriate.
Based on the entire record and the factual findings made in
the narrative portion of this decision I conclude that the
Commission has jurisdiction to decide this case. Further, I
enter the following:
ORDER
1.
(Unguarded moving machine parts): The following
citations are affirmed and penalties are assessed as noted:
Penalty
$50
50
50
50
50
Vacated
50

Citation
2366229
2366232
2366233
2366234
2366235
2366236
2366237
2366238
2366241
2366244
2.

so
so
so

(Junction boxes)
Penalty
$20
20
20
20
20
20
20

Citation
2366231
2366239
2366240
2366242
2366243
236624S
2366246
3.

(Emergency stop device)
Penalty
$30

Citation
2366230

1132

4.

(Insulated bushings)
Penalty
$20

Citation
2366247
5.

(Failure to notify MSHA)
Citation
2366258

Penalty
$10

6. Respondent is ordered to pay to the Secretary the sum of
$650 within 40 days of the date of 'this decision.

Law Judge
Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, U.S.
Department of Labor, 71 Stevenson Street, 10th Floor, P.O. Box·
3495, San Francisco, CA 9411~-3495 (Certified Mail)
Mohave Concrete & Materials Inc., Mr. Quinto Polidori, Mr. Larry
Rinaldis, 4502 Highway 95 North, Lake Havasu City, AZ 86403
(Certified Mail)
/bls

1133

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

20006

JUN 231981
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 87-107
A. C. No. 36-05018-03643
Cumberland Mine

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

DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

The Solicitor has filed a motion to approve settlement for
the violation involved in this case. The original assessment was
$136 and the proposed settlement is for $30.
The subject citation was issued for a violation of 30 C.F.R.

§ 75.503 because the inspector believed that a headlight on a Joy

continuous miner was not maintained according to permissibility
standards in that the headlight on the machine was "loose and
not making a ground connection." The Solicitor represents that a
reduction from the original assessment is warranted, because "subsequent to the issuance of the citation, the Secretary's representative learned that a third wire existed that grounded the
headlight; consequently, ~o hazard existed from the permissibility violati-0n." lhe cftation was then modified to reduce the
gravity of the violation to ·"no likelihood of occur~ence."
In light of the information regarding the existence of a
third wire that grounded the headlight, I accept the Solicitor's
representations and approve the recommended settlement for a
nonserious violation.
Accordingly, the motion to approve settlement is GRANTED and
the operator is ORDERED TO PAY $30 within 30 days from the date
of this decision.

Paul Merlin·
Chief Administrative Law Judge

1134

Distribution:
William T. Salzer, Esq., Office of the Solicitor, U. S. Department of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Billy M. Tennant, Esq., General Attorney, Employee Relations, 600
Grant Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail)
Mr. Samuel L. Cortis, Safety Manager, U. S. Steel Mining Company,
Inc., 351 West Beau Street, Washington, PA 15301 (Certified
Mai 1 )
I gl

1135

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

JUN 2fl1Q87

.. CIVIL PENALTY PROCEEDING

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

:

Docket No. CENT 86-120-M
A.C. No. 41-00995-05510

:

Van Horn White Marble Mine

v.
TEXAS ARCHITECTURAL
AGGREGATES, INCORPORATED,
Respondent
DECISION
Appearances:

Jill D. Klamm, 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 llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820Ca), seeking a civil penalty assessment of $20 for an
alleged violation of the mandatory noise standards found at
30 C.F.R. § 57.5-50(b). The respondent filed a timely contest and answer and a hearing was held in Austin, Texas. The
parties were afforded an opportunity to file posthearing
briefs, but they declined to do so.
Issues
The principal issues presented in this case are Cl>
whether the conditions or practices cited by the inspector
constitute a violation of the cited mandatory health standard, and (2) the appropriate civil penalty to be assessed
for the violation, taking into account the statutory civil

1136

penalty criteria found in section llOCi) of the Act. Additional issues raised by the parties are discussed 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 se9.
2.

Sections llO(a) ~nd (i) of the 1977 Act, 3d

u.s.c.

§ 820(a) and Ci>.

3.

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

4. Mandatory standard 30 C.F.R. § 57.5-50, provides as
follows:
57.5-50 Mandatory.
(a) No employee shall
be permitted an exposure to noise in excess of
that specified in the table below. Noise level
measurements shall be made using a sound level
meter meeting specifications for type 2 meters
contained in American National Standards
Institute (ANSI) Stanaard Sl.4-19.71.
"General
Purpose Sound Level Meters," approved April 27,
1971, which is hereby incorporated by reference
and made a part hereof, or by a dosimeter with
similar accuracy. This publication may be
obtained from the American National Standards
Institute, Inc., 1430 Broadway, New York,
New York 10018, or may be examined in any Metal
and Nonmetal Mine Health and Safety District or
Subdistrict Off ice of the Mine Safety and
Health Administration.
PERMISSIBLE NOISE EXPOSURES
Duration per day,
hours of exposure
.8 .
. .
6 . .
.
4 .
3 . . . . .
2 . . .
1-1/2 •
1 . .
.
1/2
1/4 or less

.
.
.
.
.
•
.
•
•

Sound level dBA,
slow response

. . . . . . • . 90
. . . . . . . . 92
. • . . . . . . 95
.
. 97
. . . . . . . .10 a
• • . • • • . • 102
. . . . . . . .10 5
• • • • •
.110
• • .
.115

LU7

No exposure shall exceed 115 dBA.
Impact or
impulsive noises shall not exceed 140 dB, peak
sound pressure level.
NOTE. When the daily exposure is composed of two or more periods of noise exposure
at different levels, their combined effect
shall be considered rather than the individual
effect of each.
If the sum

exceeds unity, then the mixed exposure shall
be considered to ,exceed the permissible exposure Cn indicates the total time of exposure
at a specified noise level, and Tn indicates
the total time of exposure permitted at that
level.
Interpolation between tabulated values
may be determined by the following formula:
log T = 6.322 - 0.0602 SL
Where T is the time in hours and SL is
the sound level in dBA.
Cb) When employees' exposure exceeds
that listed in the above table, feasible administrative or engineering controls shall ~e
utilized.
If such controls fail to reduce
exposure to within permissible levels, personal protection equipment shall be provided
and used to reduce sound levels to within the
levels of the table.
Stipulations
The parties stipulated to the following (Tr. 6-8):
1. The respondent's products affect
commerce and the respondent is subject to the
jurisdiction of the Act and this Commission.
2. The respondent's size as stated in
terms of annual man-hours worked is 129,227
production tons or man-hours worked, and the
size of the respondent's Van Horn White Marble
Mine is 11,385 productions tons or man hours.

1138

3. The total number of MSHA inspection
days at the mine in question during the
24-months preceding the issuance of the citation in this case is 27, and during this time
period the respondent was issued civil penalty
assessments for three violations.
4. The imposition of a civil penalty
assessment for the violation in issue in this
case will not adversely affect the respondent's ability to continue in business.
5. On February 7, 1985, MSHA Inspector
David Lilly conducted an inspection of the
subject mine and issued a citation alleging a
violation of mandatory standard 30 C.F.R.
§ 57.5-50(b).
At the time of the inspection,
personal hearing protection was being worn by
the drill operator.
Discussion
Section 104(a) Citation No. 2236193, February 7, 1985,
cites an alleged violation of 30 C.F.R. § 57.5-50Cb), and the
cited condition or practice is described as follows:
The full shift exposure to mixed noise
levels of the 12 EH LeRoi. drill operator in
the south central heading exceeded unity
Cl00%) by 235.9 times (235.9%) as measured
with a dosimeter. This is equivalent to an
8 hour exposure of 96 dBA. Personal hearing
protection was being worn.
The inspector fixed the abatement time as February 21,
1985, and on April 25, 1985, he extended the abatement time
to May 4, 1985, and noted as follows:
The operator has done several things to
try to engineer out the noise, moving the compressor, shielding the drill rotation head and
changing bits more often. SLM survey of
30 min. showed the drill opr. to still be out
of compliance. A partial dosimeter survey
avg. (sic) out to· confirm the SLM. The operator plans to do more engineering on the drill
to further reduce the noise level.

1139

on June 6, 1985, the inspector extended the abatement
time further to September 3, 1985, and noted as follows:
The operator stated that he had called
the manufacturer of the LeRoi 12 EH drill for
sound reduction instructions and the engineer
for the manufacturer had told him there were
no engineering controls to reduce the noise,
that they had incorporated all technology
available during construction of same, and
would send a letter to MSHA from the manuf acturer .stating this. Denver Technical Support
for MSHA was contacted by Sidney Kirk and was
told by them that the noise could be reduced
and that they would come to the mine and
provide assistance.
on August 27, 1985, the inspector extended the abatement
time to October 7, 1985, and noted that "The mine was not in
operation, a resurvey for mixed noise of the 12 EH LeRoi
drill operator could not be made."
On November 7, 1985,the inspector extended the abatement
time to January 10, 1986, and noted that "The Denver Technical
Support Group is scheduled to assist during that week to
attempt to reduce the noise exposure."
On January 7, 1986, the inspector extended the abatement
time to January 31, 1986, and noted as follows:
"On
January 7, 1986, some tests were made and simulated structures positioned and did show a substantial reduction in the
drill operator position to noise. Additional time is needed
for the operator to construct the protective barrier on the
drill."
on February 4, 1986, the inspector extended the abatement time to March 31, 1986, and he noted that "The protective barrier has been completed on the drill. Additional
time is needed for Denver Technical Support to do a noise
study."
On April 15, 1986, the inspector terminated the citation, and he noted as follows:
On April 15, 1986, a resurvey of noise on
the stated drill was conducted by the Denver
Technical Support Group. A reduction of noise
exposure of 5 dBA had been accomplished. There
is no further engineering control available at

1140

f

this time. However, hearing protection must
still be worn to prevent the driller from
over-exposure.
MSHA's Testimony and Evidence
MSHA Inspector David P. Lilly testified as to his background, experience, and training, and confirmed that in
addition to his regular mine inspections, he conducts approximately 15 to 20 noise surveys a year as part of his ~nspec
tions.
He explained the use of a dosimeter, and confirmed
that he conducted an inspection of the mine on February 7,
1985, and that he took a noise survey that same day. After
calibrating the dosimeter testing devices, they were installed
on a truck driver who hauled material from the underground
mine to the crusher, and on the LeRoi drill helper who was
assisting the driller underground. Mr. Lilly described the
drill as an air percussion drill used to drill vertically and
horizontally.
Mr. Lilly stated that during the noise survey period he
took periodic sound level meter readings with a testing device
that reads out in decibels rather than in percentages and that
he recorded the results. A~ the end of the day, his sound
level meter readings confirmed the results of the dosimeter
test results which reflected that there was an over-exposure
to noise. The dosimeter readings were considerably over the
allowable noise exposure of 90 decibels for an 8-hour period
of exposure (Tr. 11-17).
Mr. Lilly confirmed that during the survey shift in question, the drill helper and operator continually wore Wilson
"muff-type" hearing protection. However, the protectors were
old and worn, and since the identification numbers were worn
off, it was difficult to ascertain whether or not they were
MSHA approved protectors. Mr. Lilly also confirmed that on
the basis of his 14 years of experience as an underground
miner, and statistics, a continual over-ex_l)osure of noise
levels in excess of 90 decibels will .eventually cause hearing
deterioration to a point where there will be a complete loss
after time.
He stated that when he worked as a miner,
personal hearing protection was not available, and that he
suffers from a loss of hearing (Tr. 18).
Mr. Lilly confirmed that he discussed possible solutions
to reduce the noise level of the drill with mine superintendent Carl Schiller, and recommended that the air lines to a
large compressor located 20 feet from the drill be extended
so as to move the compressor as far away from the drill as

1141

possible. The compressor was a source of "a tremendous
amount of noise." Mr. Lilly also recommended that dull drill
bits be replaced with new ones so as to reduce the noise (Tr.
19). Mr. Lilly confirmed that he made several follow-up
visits to the ·mine to monitor the noise levels and extended
the abatement times while the respondent attempted to reduce
the noise levels through engineering and contacts with the
dril],. manufacturer (Tr. 21). After further discussion·s with
his supervisor, it was decided to contact MSHA's Denver
Technical Support Group to assist the respondent in finding
solutions to the drill noise levels. The technical group had
prior experience with air track drills and were able to get
substantial noise reductions in similar drills at other operations. Since he was reassigned to another inspection area at
the time the technical support group surveyed the drill
noise, he had no personal knowledge of the detailed results
of MSHA's further testing, but did understand that a reduction in the drill noise level was achieved (Tr. 23).
·
On cross-examination, Mr. Lilly confirmed that he had
inspected the mine in question since the latter part of 1982,
and he recalled an old drill that was used outside, but he
never observed it in operation. The LeRoi drill which he
observed in use underground during his February 7, 1985,
inspection was "in real good shape like it was fairly new"
(Tr. 25).
Mr. Lilly confirmed that the mine in question is a marble
mine, and it is the only mine of this kind in his inspection
area.
He stated that the cited drill is used "off and on"
during the working shift, but this makes no difference since
his noise survey is taken over a full 8-hour shift and the
dosimeter averages the noise exposure over the full 8-hour
working period. Mr. Lilly confirmed that his noise survey on
February 7th was the first one he has conducted at the mine,
and he could. not state whether prior surveys had been made by
MSHA.
He was· not aware•.of any prior noise citations served on
the respondent during the time it has operated the, mine (Tr.
27-28).
Mr. Lilly confirmed that the white marble mine in question is worked by six employees, and he compared it to a small
underground potash mining operation. He also confirmed that
the respondent uses the same employees to work its open pit
mines at Eagle Flats (Tr. 30). Since he transferred out of
the area when MSHA's technical support group came in,
Mr. Lilly could not state the engineering and production
costs of the noise shield which was constructed to alleviate

1142

the noise level, nor could he state the number of hours spent
by the technical staff in developing the shield (Tr. 30).
In response to further questions, Mr. Lilly described
the LeRoi drill as a large track mounted piece of machinery,
and he stated that the operator stands at the control station
while operating the drill boom. He confirmed that the drill
operator is positioned further back from the drill helper who
cleans and collars the drill steel. He confirmed that only
the drill helper was surveyed with a dosimeter because he
spends more time in the area where the actual drilling is
performed. However, on subsequent noise surveys, he would
probably test the drill operator and a loader operator, and
he tries not to survey the same individual again (Tr. 33-35).
Mr. Lilly confirmed that the drill is also used for
scaling loose material, and that over an 8-hour shift the
drill is in operation for approximately 4 to 5 hours (Tr. 36).
Mr. Lilly also confirmed that the results of his noise survey
on February 7th indicated that the drill noise exposure was
235.9 percent over the allowable limit, and that this translates into a noise exposure average of 96 dBA's, or 6 dBA's
over the allowable limit of 90 dBA's over the full shift
noise survey period (Tr. 38-39). Mr. Lilly identified the
noise sources as the drill and the compressor. The resulting
noise levels to which the employees are subjected are high
frequency directional noises -coming from the air hammer and
the "ringing" of the rotating steel drill bits, and if one
were to place a barrier between the employees and the noise
source, a small reduction in the noise will result (Tr. 39).
The noise survey is based on a particular occupation and
takes into account the normal required duties of the person
being tested at any given time.
In the instant case, a determination was made that the drill and compressor were the main
sources of noise exposure to the area where the drill helper
was required to work (Tr. 41).
'
Mr. Lilly stated that his experience with similar drill
shielding devices in connection with MSHA's technical support
at another mining operation confirmed that such devices
effectively result in a great reduction of the drill noise
exposure.
In his opinion, shielding devices are practical at
the respondent's mining operation and they do not hamper the
operator's ability to drill or control the drill (Tr. 42).
Mr. Lilly conceded that while his citation makes reference to a drill "operator," the noise survey results are
equally applicable to the drill helper because both individuals alternated at both occupational positions and the actual

1143

noise tests were conducted on the drill itself (Tr. 45). The
work sheet and notes which accompanied the citation state that·
two individuals were exposed to the drill noise, and this
would include both the drill operator and the helper because
they alternately operate the drill, and his sound level meter
reading were taken around the drill areas, including the control station, and they were all over 100 decibels (Tr. 48).
Thomas M. Lloyd, Physicist, MSHA Safety and Health
Technology Center, Denver, Colorado, testified as to his
education a.nd experience, and confirmed that his work
includes testing noise levels, designing engineering noise
controls and modifications, and retesting such controls to
assure positive results~ He confirmed that during his
7 years of employment with MSHA he has been personally
involved in conducting 15 noise surveys a year. He has also
been involved in at least 10 noise control modifications for
underground drill machines, and he confirmed that MSHA performed technical assistance noise and engineering control
surveys at the respondent's mine in January and April, 1986,
and he identified exhibits G-4 and G-5, as MSHA's reports and
recommendations concerning its technical assistance (Tr.
82-87).
Mr. Lloyd explained what takes place during his technical
assistance visits to mines, and he confirmed that exhibit G-4
is the report he prepared with respect to his January 6-8,
1~86, visit to the mine in question.
He confirmed that a
two-side temporary noise barrier was constructed out of plywood as a diagnostic procedure, and when the noise level was
tested with the barrier in place, a reduction in noise
resulted, and he concluded that if a permanent shield was constructed for the drill in question, there would be some noise
reduction generated CTr. 87-90.).
·
Mr. Lloyd confirmed that the April 8, 1986, survey and
follow-up noise measurements were made by another member of
his MSHA group, and he identified photographs of the shielding
device constructed out of panels of safety glass mounted on a
wooden frame (exhibit G-5; Tr. 91). Mr. Lloyd stated that the
shielding device creates an acoustical "shadow zone" for the
person standing behind the shield, and it serves to interrupt
the noise between the operator and the drill (Tr. 91). He
confirmed that such partial barrier noise control treatments
for drilling machines have been used successfully in at least
10 other underground mines (Tr. 92).
Mr. Lloyd stated that he made it clear to the respondent
that his services were available to help in the construction

1144

of the barriers for the drilling machine in question, and he
estimated that the cost for the wooden frame and safety glass
materials to construct the barrier would be "in the area of
$300," plus the labor to construct it {Tr. 93).
Mr. Lloyd stated that the partial barrier shield constructed with some scrap plywood during his January, 1986,
survey resulted in drill noise reduction at that time, and
when the final barrier was constructed and installed, MSHA's
follow-up survey reported in April, 1986, indicated a measured drill noise reductibn of five decibels.
He described
the method for testing the noise levels utilizing the shield
and indicated that the test results are compared with the
noise level readings taken before the shield was in place
{Tr. 93-95). He stated that all of the noise exposure·that
was generated during the surveys in this case was generated
from the drill machine itself {Tr. 94). Mr. Lloyd confirmed
that other than the barrier shield which has been constructed
and installed on the drill in question, nothing further can
be done at this time to reduce the noise exposure, and no
further drill changes are required at this time {Tr. 97).
On cross-examination, Mr. Lloyd reiterated that there is
no other feasible control to reduce noise exposure other than
the noise control shield that has been installed on the LeRoi
drill in question {Tr. 97). He also reiterated that MSHA's
Denver Safety and Health Technology Center offers free engineering consultant service to the mining industry to help
keep the costs down {Tr. 99). Mr. Lloyd stated further as
follows {Tr. 100-101):
Q. You have heard testimony that the operator
of the drill is required to go outside of the
barrier to clean off the glass.
A.

Uh-huh.

Q.

And based on that, do you still feel that
the feasibility and the effectiveness of this
barrier is valid?

A.
Yes, and there are several reasons I feel
that. First of all, it has been done several
other places in other mines and worked ef f ecti vely, using glass barriers, and we have -the feedback that I have gotten from the other
projects I have worked on is that it is somewhat of a nuisance and certainly an additional
responsibility for the operator to keep the

1145

glass clean, but in general a bottle of Windex
or some cleaner of that sort is sufficient to
keep it clean.

Q.

And.did you make any notations about this
operation relative of the levels of dust and
mud splattered as compared to these other
places you have visited?
A. There is -- all I really have to go by are
the pictures that we have shown in the report,
because I was not in that follow-up survey,
but I would say it was comparable to other
places we have seen situations of that degree.
And, at (Tr. 105-106):
Q.
I'm still not ' sure I understand why you
are satisfied with this -- at this particular
moment in time.
A. Okay.
I feel that the control as installed
has met the requirements -- my personal requirements -- my definition of feasibility~ and that
is that noise control has provided a substantial noise reduction. A 5 decibel noise reduction will reduce the noise level -- or noise
exposure in half for the time spent behind the
shield, so it provides significant noise
reduction.
It also was constructed -- or could.have
been constructed using a minimal amount of
money.
It is not -- whether the company
decided to use technical support assistance in
constructing the shield or not was their
decision, but the amount of money spent could
have been minimizea to somewhere in the order
of $300, and so economically I feel it is
feasible.
And discussions with the drill operator
at the time I made the initial determination
of the two-sided shield indicated that there
would not be a problem with constructing the
shield as we had laid it out. And, I might
add, that we purposely left the top of the
shield open -- or· I am sorry -- we did not put
a roof on top of that enclosure because when

1146

you are drilling in the vertical position he
needed to see the top of the drill, so we left
that -- that was a further addition that we
had considered and decided not to go with
that.

Q. Then it is your position then that this
was an inexpensive improvement so long as MSHA
provides physicists to do the engineering?
A.

Well, yes, and we did.

With regard to the use of personal hearing protection,
Mr. Lloyd stated as follows (Tr. 128-129):
THE WITNESS: That is correct. The noise
one of my points was that the amount of noise
reduction provided by the hearing protection
is almost random.
It is just so variable that
it is very, very difficult to protect that.
We are using hearing piotection as a last -you know, it is the absolute last thing that
we could think of that would do any good at
all.
To rely on hearing protection as -- to
give a predicted amount .. of noise reduction
just -- it is just not reasonable based on the
tests. We have made over 200 te~ts of ear
muff type protectors in the field, and our
concern is that people will be relying on hearing protection to drop the noise level to that
last wnatever number you want to pick.
When you design an engineering control,
it is fixed on the machine, and any time spent
behind that will lower his average daily noise
exposure. It would be real unlikely to go
back and sample that person for all day and
come out higher or the same then -- it may not
be 5 decibels lower, but it is bound to be
somewhat lower.
And my point is, given that that hearing
protection is unpredictable in its ability to
reduce noise for the operator, the engineering
work, in conjunction with the hearing protection, seems to be the most reasonably wa~ to
approach it.

1147

Mr. Lloyd confirmed that he is not aware of any drills
on the market which are available, as manufactured, that will
bring the respondent into compliance with the 90 dBA requirement of the standard.
In order to achieve compliance, or
attempt to do so, an operator must modify any drill that it
purchases, or the manufacturer must make certain modifications, and MSHA is available to assist with the design of a
suitable engineering noise control (Tr. 142-143).
Respondent's Testimony and Evidence
Joe R. Williams, respondent's general manager and president, testified as to the scope of his mining operations, and
confirmed that the van Horn, Texas White Marble Mine is the
only underground mine which he operates. Mr. Williams also
confirmed that six employers, including superintendent Carl
Schiller, work at the mine, as well as at two other surface
mining locations (Tr. 49-53).
Mr. Williams confirmed that the cited LeRoi hydraulic
track drill is in use at the subject mine, and that prior to
the use of that drill, a LeRoi air track drill and a
Gardner-Denver track drill were used. The air track qrills
were very noisy in comparison to the hydraulic drill
currently in use. Mr. Williams identified copies of three
invoices reflecting the purchase and trade-in of the drills
which he referred to, and he confirmed that the cited drill
was purchased in November, 1983 Cexhibit·R-1, Tr. 58).
Mr. Williams identified a copy of a letter dated May 24,
1985, after the citation was issued, received by Mr. Schiller
from the Chief Engineer, LeRoi Division, Dresser Industries,
concerning the cited drill, and it states as follows (exhibit
R-2, Tr. 59):
.
I enjoyed discussing the very interesting
aspects of your LeROI hydraulic drill rig
application last week. I regret that we could
not be of more help to you in complying with
MSHA noise level requirement of 90 dBA, 8 hour
average for operator.
We are required by EPA to silence portable
compressors; but as you know, there is presently no national requirement for rock drills.
I believe federal legislation on noise purposely avoided restrictive rules on rock
drills because of the lack of any feasible

1148

means to implement. Many rock formations like
your marble can only be penetrated economically
by percussion drilling means.
Percussion
drilling is by nature very noisy.
Over the years we and others have experimented
with various schemes to reduce percussion
drill noise. Perhaps the biggest advance made
in this direction was the development of the
hydraulic actuated hammer which completely
eliminated the pneumatic bark of pulsating and
expanding air from the machine cylinder. Even
with this advantage which you are utilizing,
the impulsive energy generated still has to
travel down the steel to bit to do any work.
Noise emanating from the rapidly struck drill
steel is, of course, the principal remaining
sound source and we have found no commercially
feasible way to control it. Various forms of
telescoping enclosures and vibration dampers
have yielded marginal improvements but have
been, in general, too cumbersome and unreliable
to allow reasonable ~roduction l~vels.
On applications we have been involved with,
earmuffs and other personal ear protection
have satisfied local special requirements.
Mr. Williams also identified a copy of a letter dated
June 7, 1985, from Mr. Schiller to Inspector Lilly, forwarding
a copy of the Dresser Industries letter, and it states as
follows (Tr. 59):
We are using a LeROI 12 EH drill with a LeROI
175 compressor. We have attempted twice to
reduce noise but failed to bring this machine
into compliance. Please note paragraphs three
and four in the attached lett~r in relation to
citation #2236193 issued February 7, 1985 and
extended April 25, 1985.
We would like to have this citation extended
until suitable engineering controls are
invented.
We have an existing personal protective equipment program requiring drillers and drillers

1149

helpers to wear EAR (brand) plugs or David
Clark Company Model lOA hearing protectors.
Mr. Williams identified a photograph of the cited drill
in question, ·and a photograph of the drill as modified by the
noise shield recommended by MSHA's technical support group
CTr. 61, exhibits R-3, R-4).
Mr. Williams could not state whether prior MSHA noise
citations have ever been issued at the mine, and he stated
that "those drills are out of compliance with the regulation,
and always have been and always will be" (Tr. 64). He confirmed that protective ear muffs or ear plugs have always
been worn by his employees since he began his mining operation CTr. 64).
He stated that the drill operator and helper
are behind the noise shield only when they are at the controls, and he describe0 their duties with respect to the
drilling operation (Tr. 64-66). He confirmed that the sum
total of the noise emanating from the operation of the drill
includes noise from the compressor, the hydraulic mechanism
engine, and the percussion of the steel drill as it drills
into the formation, and that the greater noise comes from the
steel drill CTr. 66).
Mr. Williams stated that the glass panes on the noise
barrier accumulate mist and dust and need to be wiped off, and
that in certain drilling positions, the barrier creates some
handicap. Mr. Williams could not state how much time MSHA's
engineering staff spent on developing the barrier, and while
he had no accurate answer as to what it cost his company to
construct the barrier, he stated that "it cost several
thousand dollars of time, personnel's time" (Tr. 67). He
confirmed that Mr. Schiller, who is a mining engineer, constructed and mounted the barrier on the drill (Tr. 68).
On cross-examination, Mr. Williams stated that while·he
was never a miner, he h~s had 25 years of experience in the
"engineering field;" and that his personnel have attended
various MSHA training schools (Tr. 69). Mr. Williams confirmed that he has discussed the drill noise problem with
Mr. Schiller a number of times, and he considers Mr. Schiller
to be a conscientious and good engineer.
However, they could
not come up with any solutions, and Mr. Williams does not
believe that MSHA's solution with respect to the noise barrier
device "is worth a damn" (Tr. 71).
In response to further questions, Mr. Williams stated
that he traded in the air drill for the cited hydraulic drill
because the hydraulic is far less noisier and is less costly

1150

to terms of maintenance. He did not believe that t.ht:
hydraulic drill was tested for noise when he received it
because everyone knew it was inherently noisy and used ear
plugs when it was operated (Tr. 73). However, if a less
noisier drill that meets the noise regulations comes on the
market, he would purchase one (Tr. 75).
Mr. Williams stated that he was not too enchanted with
MSHA's recommended noise shielding device because "it is kind
of awkward, • • . and according to Carl Schiller, he says it
really doesn't make but about one decibel difference."
Mr. Williams does not believe that the device is a good noise
deterrent, and in his opinion, MSHA's reported 5 decibel
noise reduction with the use of the barrier "is questionable"
(Tr. 75).
He confirmed that the drill operator still wears
the protective ear muffs (Tr. 75).
Mr. Williams conceded that the expense of constructing
the barrier in question was a one time expense, and that it
was installed only on the cited drill. He expressed some
concern over what the future will bring, and whether or not
MSHA will at some later time require him to install otQer
noise devices to achieve compliance. When asked whether
there was a problem with amortizing the cost of the noise
shield, while at the same time "keeping MSHA happy, 11
Mr. Williams responded "I have no objection to that. We did
it • • • we spent the money. Now if they are satisfied, it
would tickle me" (Tr. 76).
Discussion
In MSHA v. Callanan Industries, Inc., 5 FMSHRC 1900
(November 1980), an inspector cited a sand and gravel mine
operator with a violation of 30 C.F.R. § 56.5-50, a noise
standard ideptical to that found in section 57.5-50, after
conducting an 8-hour dosimeter noise survey on an air track
drill used in a stone quarry. At the time of the survey, the
drill operator was wearing ear muffs, but the survey results
showed that for the 8-hour shift, the operator of the drill
was exposed to 103.6 dBA, the equivalent of 660 percent of
the 90 dBA. permissible noise exposure level established by
the standard.
After the citation was issued, an engineer from MSHA's
Pittsburgh Technical Support Center conducted a noise survey
on the air track drill for the purpose of suggesting noise
controls. Subsequently, MSHA suggested that the drill
cylinder be modified to accommodate a muffler, and stated
that Callanan could either purchase a muffler commercially or

1151

constr~ct

one itself. MSHA concluded that the attachment of
a muffler would result in a noise reduction of approximately
5 dBA, and it estimated the cost at $2,672.78. Callanan took
the position that the proposed drill shell modification was
not feasible because it was too costly to transport the drill
for retrofitting, and it stated that the drill in question
was valued at under $2,500. MSHA took the position that the
proposed engineering control was feasible because it was both
technologically achievable and reasonable from a cost
standpoint.·
The judge held in Callanan's favor and vacated the citation. He found that the MSHA's cost estimate with respect to
the engineering control was "too imprecise to allow a proper
economic analysis," and he found no "reasonable assurance
that there would be an appreciable and corresponding improvement in working conditions as a result of the proposed
controls."
·
The Commission reversed, and rejected any notion that a
"cost-benefit analysis," as that term is commonly understood
and used, is the appropriate analytical method for determining
whether a noise control is required. The Commission construed
the term "feasible" as "capable of being done," and it concluded that the determination of whether use of an engineering
control to reduce a miner's exposure to excessive noise is
capable of being done involves consideration of both technological and economic achievability.
In allocating the burdens of
proof required to make this determination, the Commission
offered the following guidelines at 5 FMSHRC 1909:
[I]n order to establish his case the Secretary
must provide:
Cl) sufficient credible evidence
of a miner's exposure to rioise levels in excess
of the limits specified in the standard; (2)
sufficient credible evidence of a technologically achievable engineering control that could
be applied to the noise source; (3) sufficient
credible evidence of the reduction in the noise
level that would be obtained through implementation of the engineering control; (4) sufficient
credible evidence supporting a reasoned estimate of the expected economic costs of the
implementation of the control; and (5) a reasoned demonstration that, in view of elements 1
through 4 above, the costs of the control are
not wholly out of proportion to the expected
benefits. After the Secretary has established
each of the above elements, the operator in

1152

rebuttal may refute any of the components of
the Secretary's case.
In Todilto Exploration and Development Corporation v.
MSHA, 5 FMSHRC 1894 (November 1983), an inspector cited a
violation of 30 C.F.R. § 57.5-50(b), after conducting an
8-hour noise survey with a dosimeter on a jackleg percussion
rock bolt drill in an underground uranium mine and finding
that the drill operator was exposed to 114 dBA. The drill
operator was wearing ear plugs and muffs, and the drill was
not equipped with a muffler. The violation was abated by the
installation of a muffler on the drill. However, subsequent
noise readings with a sound level meter showed that excessive
noise levels still existedi and the readings established that
the drill operator's average noise exposure levels ranged
between 110 dBA and 113 dBA. Even though Todilto attached a
muffler to the drill, the drill operator was still required
to wear personal protective equipment.
The judge found that the drill operator was exposed to
an excessive noise level, and although he also found that
MSHA established that the installation of the muffler was an
engineering control available to Todilto, since the exposure
to noise was still not within permissible levels as required
by the regulation, even wfth the muffler attached, the judge
concluded that the installation of the muffler was not a
feasible engineering control, and he vacated the citation.
On appeal, the Commission reversed and stated as follows _at
5 FMSHRC 1896-1897:
[W]e hold that a control may inqeed be "feasible" within the meaning of 30 C.F.R.
§ 57.5-50(b) even though it does not reduce
the miner's exposure to noise to permissible
levels set forth in subsection Ca} of the standard. Our holding is based upon the express
wording of the noise standard. Section
57.5-SO(b) unambiguously provides that when
excessive noise exposure levels exist, "feasible administrative or engineering controls
shall be utilized." It continues, "[i]f such
[feasible] controls fail to reduce exposure to
within permissible levels, personal protection
equipment is to be provided and used • • • • "
(Emphasis added). Thus, the noise standard
clearly contemplates that in a given case a
control might not reduce the noise exposure
level to within permissible levels, but nevertheless be a "feasible" control required to be

ll53

implemented. To allow a mine operator to
proceed directly to the use of personal protective equipment and thereby avoid implementing
otherwise feasible administrative or engineering controls, solely because use of the controls themselves does not achieve permissible
exposure levels, would be to allow circumvention of the standard's clear requirement that
excessive noise levels first be addressed at
their source. we note that under the judge's
approach a control that reduces the level of
noise from 114 dBA to 91 dBA (on the basis of
an 8-hour exposure period) would not be
feasible simply because it fails to reduce the
noise level to 90 dBA. we find no support for
this result in the standard.
Upon remand of the Callanan case, the parties agreed-to
settle the matter, and the operator paid a $78 civil penalty
assessment for the noise violation in question, 6 FMSHRC 139
(January 1984).
The Todilto case was remanded for the judge's determination as to whether or not MSHA proved a violation of section
57.5-50(b) for failure by the operator to implement a feasible engineering control within the parameters of the
Commission's guidelines as enunciated in Callanan, supra. On
April 17, 1984, the judge issued his decision and found that
MSHA had established that the drill operator was exposed to
an excessive noise level, that the muffler was a technologically achievable engineering control capable of reducing the
drill operator's noise exposure, and that the·cost was not
unreasonable for the benefits achieved. The judge found that
Todilto was in violation of section 57.5-50Cb), and stated in
pertinent part as follows at 6 FMSHRC 934 (April 1984):
Therefore, based upon the credible evidence in this.case; and the Commission's
decision in Callanan, I find that the Secretary
has proven the respondent violated mandatory
standard § 57.5-50(b) by failing to implement
the feasible engineering control (muffler)
which was available to it. The fact that the
muffler did not reduce the noise level to that
required by the standard is not a proper reason
for an operator to avoid the control and go
directly to personal protection equipment. The
standard contemplates the use of such personal
equipment only after all other ''feasible"

1154

engineering controls are installed to achieve
the best results possible.
In MSHA v. Landwehr Materials Inc., 8 FMSHRC 54 (January
1986), Judge Broderick affirmed a citation for a violation of
section 56.5-50(b), after finding that a shovel operator at a
limestone quarry who was wearing personal hearing protection
was exposed to a 96 dBA noise level for an 8-hour shift.
After the termination date for the citation was extended,
MSHA's Denver Technical Support Group performed a noise control survey which showed that the noise level in the shovel
operator's environment was reduced by approximately 33 percent, from an average of 101 to 98 dBA, when a vinyl curtain
was installed between the shovel operator and the engine
compartment of the shovel. While significant, this reduction
did not bring the noise level down to the permissible 90 dBA
specified in the cited standard, and personal protection
equipment was still deemed necessary. Judge Broderick found
that the installation of the vinyl curtain was a feasible
engineering control available to reduce the operator's noise
exposure, and that Landwehr's failure to utilize this
feasible noise control constituted a violation of section
56.5-SO(b).
MSHA's Arguments
During oral argument at the hearing, petitioner's counsel
asserted that the respondent must use those available technologically feasible engineering controls to reduce the noise
level as much ·as possible before resorting again to personal
hearing protection CTr. 78). Counsel maintained that on the
facts of thi~ case, the petitioner has established a prima
facie violation of section 57.5-50(b) by the respondent
pursuant to the guidelines established by Callanan Industries,
Inc. and Todilto Exploration and Development Corporation,
supra. Coun~el asserts that petitioner has established that
miners were over-exposed to the drill noise, that there was a
technologically available engineering control, and that a
~technical violation" of the cited standard has been established (Tr. 140-141; 14~). Counsel concluded that since the
inspector modified the citation to delete his "significant and
substantial" CS&S) finding, "the references in regard to negligence are no longer a part of the citation" (Tr. 150).
Respondent's Arguments
During oral argument at the hearing, respondent's counsel
conceded that the cited drill was out of compliance with
MSHA's noise requirements limiting the noise exposure to

1155

90 dBA's over an 8-hour work shift· (Tr. 139-140). However,
counsel took the position that the respondent did what it
could to reduce the drill noise, and he expressed concern
that even though MSHA concedes that even with the use of the
noise barrier, there are no additional feasible engineering
controls available to further reduce the noise, other inspectors in the future may require the respondent to use additional controls to achieve total compliance (Tr. 138).
Counsel asserted further that while it has received prior
citations for noise violations, it has required its employees
to wear personal hearing protection, purchased a quieter
drill, and consulted with the drill manufacturer in order to
achieve compliance (Tr. 146-147). Considering these pa~t
compliance efforts, counsel took the position that it was in
compliance with the intent of the standard and was not negligent, and he preferred that MSHA issue some sort of "warning"
or advice to the respondent as to how to continue in compliance, rather than issuing citations and seeking civil penalty
assessments (Tr. 147-148). Counsel believes further that
since MSHA has established that no further feasible engineering controls are available, the citation should have been
withdrawn (Tr. 149-150).
Findings and Conclusions
The respondent in this case is charged with a violation
of the noise exposure requirements of mandatory standard
30 C.F.R. § 57.5-50(b), for exceeding the noise exposure level
for the operator of a LeRoi 12 EH hydraulic track mounted
drill which was in use underground at the mine. Although the
citation makes reference to the "drill operator," Inspector
Lilly explained that the results of MSHA's noise surveys are
equally applicable to the drill operator and drill helper
because they essentially occupy the same occupational position, alternate their work during a normal work shift so that
each individual functions at any given time as both the drill
operator and helper, that they are both exposed to the same
noise levels emanating from the drill, and that the noise
tests and surveys measured the noise exposure from the drill
and its components.
The essential facts in this case are not in dispute.
Although the respondent's original answer denies that a violation occurred, the respondent has not rebutted the petitioner's credible evidence and testimony establishing that
the drill in question is out of compliance with the applicable cited noise standard. As a matter of fact, respondent's
general manager and president Joe Williams candidly conceded
that the cited drill is out of compliance with the cited

1156

noise standard, and "always will be." Further, during the
course of the hearing, respondent's counsel, who happens to
be Mr. Williams' son, conceded that the drill is out of compliance with the required 90 dBA noise exposure level over an
8-hour shift (Tr. 139-140). Under the circumstances, I conclude and find that the petitioner has established by a preponderance of the credible evidence in this case that the
noise exposure resulting from the underground operation of
the cited drill was in excess of the permissible limitation
of 90 dBA, and that the drill operator and helper were
exposed to an excessive noise ·1evel amounting to a noise dose
over an 8-hour period which was 235.9 percent in excess of
that permitted by the standard, resulting in an average
8 hour noise exposure of 96 dBA's. Accordingly, I further
conclude and find that the petitioner has satisfied the
initial requirements enunciated by the Commission in Callanan
Industries, Inc., supra, and has presented sufficient credible evidence of min~r exposure to noise levels in excess of
the limits specified in the standard.
The next consideration is whether the petitioner has
presented credible evidence as to the availability of a
technologically achievabl~ engineering control capable of
reducing the drill operator or helper's exposure to excessive
noise. The facts show that after the citation was issued,
and during the extended abatement period, the respondent
attempted to reduce the drill noise exposure by moving t.he
compressor, shielding the drill rotation head, and changing
the bits more often, all to no avail.
In addition, the
respondent consulted with the drill manufacturer, only to be
told that all available technology to reduce the drill noise
had been incorporated into the drill during its construction,
and that no additional engineering controls were available
for noise reduction on the drill as manufactured.
Subsequent to the respondent's efforts at reducing the
drill noise levels, MSHA provided technical assistance to the
respondent as testified to by Mr. Lloyd, and as reflected in
his report prepared jointly with MSHA Safety and. Health
Specialist Donald D. Rapp (exhibit G-4), as well as in a subsequently issued report prepared by MSHA General Engineer
Richard J. Goff (exhibit G-5).
The evidence shows that as a
result of Mr. Lloyd's technical assistance, which included
the construction of a prototype noise barrier from scrap plywood to form a barrier between the drill operator and the
face where the drill cut into the material being mined, the
noise levels dropped.
Following Mr. Lloyd's recommendations,
the respondent subsequently fabricated a two-sided barrier
from plywood and tempered safety glass, and it was installed

1157

on the drill. Mr. Goff's report reflects that the recorded
drill noise levels before and after the installation of this
barrier showed a reduction of 5 dBA's in the drill noise
level, and he concluded that there was no additional suitable
treatment for the drill. He also concluded that personal
hearing protection was still needed, and that with the
installation of the barrier, the personal protection .would be
more effective against the lower noise levels resulting from
the use of the barrier.
Inspector Lilly testified that in his experience with
similar shielding devices at another mining operation, they
have proved to be effective in reducing drill noises. He
also believed that the barrier in question is a practical
method for reducing noise exposure and that it does not
hamper the drill opera~or's ability to drill or control the
drill. Mr. Lloyd confirmed that the use of similar glass·
barriers have proved effective in the past, and while some of
his "feedback" reflects that keeping the glass clean may be a
nuisance, it can be kept clean by the operator. Mr. Lloyd
also confirmed that his technical assistance visit to the
respondent's mine included discussions with the drill operator, and he found that the construction and lay-out of the
barrier presented no problem. Mr. Lloyd also confirmed that
the top of the enclosure was left off to afford visibility
while the drill was used in the vertical position. The
respondent did not call the drill operator or mine superintendent Schiller to testify in this case, and it has not rebutted
the testimony of Inspector Lilly or Mr. Lloyd.
Mr. Williams did not appear to be too enchanted with the
noise barrier and he questioned its effectiveness as a noise
deterrent. He also indicated that the glass had to be wiped
off, and that in certain drilling positions, the barrier was
a handicap.
However, he did not suggest that the barrier
presented any safety hazards, nor did he offer any credible
engineering eviden9e to-support his opinions and conclusions
regarding the use of the barrier.
In short, I cannot conclude
that the respondent has rebutted the petitioner's evidence
which leads me to conclude and find that the construction,
installation, and use of the barrier in question is a technologically achievable engineering control capable of reducing
the drill noise sources and the drill operator and helper's
noise exposure.
With regard to the question as to whether or not the
noise barrier in question is an engineering control which is
economically achievable, I take note of the fact that in
Callanan Industries, Inc., supra, at 5 FMSHRC 1909, the

1158

Commission stated that this may be established by "sufficient
credible evidence supporting a reasoned estimate of the
expected economic costs of the implementation of the control."
In the case at hand, the evidence establishes that the initial
diagnostic noise barrier used by Mr. Lloyd during MSHA's technical assistance survey was constructed from scrap plywood.
Mr. Lloyd estimated the cost of the one finished barrier,
. which consisted of a two-sided wooden framed and glass barrier, at $300 plus the cost of labor to construct it (Tr. 93).
Utilizing MSHa's technical support personnel to minimize the
costs, Mr. Lloyd believed that the construction and utilization of the barrier was an inexpensive and economically
feasible noise control improvement (Tr. 105-106).
Mr. Williams confirmed that mine superintendent Schiller
constructed and installed the noise barrier, and while he
could not state what it cost, he estimated that "it cost
several thousand dollars of personnel time" (Tr. 67). However, there is no credible evidence to support the respondent's estimate of the "personnel costs." The respondent
failed to call Mr. Schiller or to present any other evidence
to substantiate Mr. Williams' conclusions. Photographs of
the barrier in question (exhibit R-4), and those which are
included as part of MSHA's technical assistance reports,
reflects that the barrier is a relatively simple piece of
equipment mounted to the side of the drill at the operator
control station. Further, Lhe record in this case establishes
that the costs of developinq.the barrier, including the
engineering technical assistance and advice leading to its
construction and installation, were ail at MSHA's expense. In
addition, Mr. Lloyd confirmed that any future technical
assistance, if necessary, will be at MSHA's expense, as long
as the respondent avails itself of its services. Under the
circumstances, I conclude and find that the petitioner has
established by a preponderance of the credible evidence that
the cost of the single noise barrier in question is not
economically prohibitive, and that the respondent .has failed
to produce any credible evidence to the contrary.
It seems clear in this case that the installation of the
noise barrier in question resulted in a reduction of 5 dBA's
in the drill noise level, as well as a reduction in the level
of noise exposure for the drill operator and helper, and that
this was achieved at a reasonable cost. Under the circumstances, I conclude and find that the development and installation of the drill noise barrier were not wholly out of
proportion to the resulting noise reduction benefits which
have been achieved in this case. The fact that the 5 dBA
noise reduction with the use of the barrier did not bring the

1159

respondent into total compliance with the permissible level
stated in subsection (a) of section 57.5-50, is no reason to
excuse the respondent from using the barrier or from continuing to use personal hearing protection in conjunction with
the barrier. Todilto Exploration and Development Corporation,
supra, at 5 FMSHRC 1896-1897.
In view of the foregoing findings and conclusions, I
conclude and find that the petitioner has established a violation of the cited mandatory standard, 30 C.F.R. § 57.5-50(b),
by a preponderance of the credible evidence adduced in this
case, and the citation IS AFFIRMED.
History of Prior Violations
The parties have stipulated that for the 24-month period
prior to the issuance of the citation in question, the respondent was assessed for three violations. While it is not clear
from the record whether or not the respondent's past compliance record includes citations for violations of section
57.5-50Cb), this burden in of the petitioner. The petitioner
has produced no evidence of any prior noise violations. Under
the circumstances, I conclude and find that the respondent has
a good compliance record.
Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in Business
'
The record establishes that the respondent is a small
mine operator. The parties have stipulated that the civil
penalty assessment for the violation in question will not
adversely affect the respondent's ability to continue in
business.
Gravity
The record in this case reflects that the employees working around the drill were wearing personal hearing protections.
In addition, the respondent had purchased or traded in an old
drill for a quieter one prior to the issuance of the citation,
and there is no evidence of any long-term noise exposure. Once
the noise barrier was installed, the respondent was still
barely out of compliance, but the personal hearing protection
was more effective against the lower noise levels resulting
from the use of the barrier. Under the circumstances, I conclude and find that the violation was nonserious.

1160

Negligence
On the fact of this case, I cannot conclude that the
respondent.was negligent. The record establishes that the
respondent required the drill operator and helper to wear
personal protective devices and they were being worn at the
time of the inspection. In addition, the respondent had
purchased or traded in its old drill for a newer one in its
attempts to limit the drill noise expqsure.
Good Faith Compliance
The record established that the respondent took timely
steps to abate the violation, and cooperated fully with MSHA
in its attempts to comply with the noise standard 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 in to account the requirements of section llO(i) of
the Act, I conclude that a civil penalty assessment in the
amount of $20 is reasonable for the citation which has been
affirmed.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment in the amount of $20 for section 104(a) non-"S&S" Citation No. 2236193, February 7, 1985, 30 C.F.R. § 57.5050(b).
Payment is to be made to MSHA within thirty (30) days of the
date of this decision, and upon receipt of payment, this
proceeding is dismissed.

·/
_//~
.Z~.Lci~
Koutras
.

'Georg~A.

Administrative Law Judge

1161

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

.1162

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

22041

JUN 291987
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 86-8
MSHA NO. 15-13469-03544

v.
Mine: Green River No. 9
GREEN RIVER COAL COMPANY, INC.:
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Mary Sue Ray, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Flem Gordon, Esq., Gordon and Gordon,
Owensboro, Kentucky, for the Respondent.

Before:

Judge Melick

This case is before me upon.a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety
and Health Act of 1977 (the Act). At hearing Petitioner
filed a motion to approve a settlement agreement and to
dismiss the case. A modification of the order at bar to a
citation under Section 104(a) of the act is proposed and
Respondent has agreed to pay the proposed penalty of $500 in
full.
I have considered the representations and
documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set
forth in Section llO(i) of the Act.
WHEREFORE, the motion for approval of settlement if
a penal~y of

~RANTE~, ~nd it is ORDERE~ that Respondent

$500 within 30 days of this

_1rde . .

tfY
\,

,~j ;:f!t\. /(__,\. \' I

i'

' .

d~r':{ ~ i ck~ A_ L < 1
Adnuni trative L\tw"'Judge-..

\_ \ .

J

Distribution:

Mary Sue Ray, Esq., Office of the\ olicitor~ u. s. Department
of Labor, 280 U. S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Flem Gordon, Esq., Gordon & Gordon, P.S.C. 1500 Frederica
Street, P. o. Box 390, Owensboro, KY 42302 (Certified Mail)
nt

1163

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

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

v.
KAISER COAL CORPORATION OF
SUNNYSIDE,
Respondent

..
..
.
.
.
..
.
.

JUN 291987

CIVIL PENALTY PROCEEDING
Docket No. WEST 86-225
A.C. No. 42-00093-03532
Sunnyside No. 1 Mine

DECISION
Appearances:

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

Before:

Judge Cetti

This is an enforcement proceeding brought by the Secretary
of Labor, on behalf of the Mine Safety and Health Administration
CMSHA), charging the operator of an underground coal mine with
the violation of safety regulation promulgated under the Federal
Mine Safety and Health Act, 30 U.S.C. § 801 et ~' (the Mine
Act).
The Secretary charges the operator with the violation of
safety standard 30 C.F.R. § 75.205 with respect to the requirement that the operator test ribs of the mine as well as the roof
and face before any work or machine is started, and as frequently
thereafter as may be necessary to ensure safety.
The respondent filed a timely appeal from the Secretary's
proposal for penalty dated September 2, 1986. After proper
notice to the parties this matter came on regularly for hearing
before me as a administrative law judge of the Federal Mine
Safety and Health Review Commission on February 4, 1987, at Salt
Lake City, Utah. Oral and documentary evidence was introduced,
both parties were ably represented by counsel.
Post-trial briefs
were filed, and the case was submitted on March 30, 1987.
Issues
The issues presented in this case are:
Cl> Whether the practice at the mine of examin1ng out not
testing the ribs of the mine constitutes a violation of 30 C.F.R
1164

§ 75.205, and (2) whether the alleged violation was "significant
and substantial".

Stipulations
1. Kaiser Coal Corporation of Sunnyside is engaged in
mining and selling of coal in the United States, and its mining
operations affect interstate commerce.
2. Kaiser Coal Corporation of Sunnyside is the operator of
Sunnyside Mine No. 1, MSHA I.D. 42-0093-03532.
3. Sunnyside Mine No. 1 'is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et ~ (the 11 Act 11 ) •
4.
matter.

The Administrative Law Judge has jurisdiction in this

5. The subject citations were properly served by a duly
authorized representative of the Secretary upon an agent of respondent, Kaiser Coal Corporation of Sunnyside, on the dates and
at the places stated therein, and may be admitted into evidence
for the purpose of establishing issuance of the citations, and
not for the truthfulness or relevancy of any statements asserted
therein.
6. The exhibits to be offered by respondent and the
Secretary are stipulated to be authentic but no stipulation is
made as to their relevance or the truth of the matters asserted
therein.
7. The proposed penalty will not affect respondent's
ability to continue in business.
8. The operator demonstrated good faith in abating the
violation.
9. Kaiser Coal Corporation of Sunnyside is a large mine
operator with 817,276 tons of production in 1986.
10. The certified copy of the MSHA assessed violations
history accurately reflects the history of this mine for the two
years prior to the date of the citation.
11. If a violation of 30 C.F.R § 75.205 is found the
Secretary's $1,000 proposed penalty is the appropriate civil
penalty.
Applicable, Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977, 30
Sections 104(a) and 10l(c).

§ 301 et seq.

2.

The safety standard, 30 C.F.R. § 75.205.

1165

u.s.c.

Summary of Evidence
On March 7, 1986, Jerry Dimick, a safety engineer, was
kneeling next to a rib.
In that position, while examining a
malfunctioning crusher, he was fatally injured when a large piece
of the rib slid down and rolled over him. The piece of rib which
fell on him was approximately 6' x 4' x 2', with a feathered edge
on one side. Five to seven people were required to lift the
piece of coal off Mr. Dimick.
The citation alleges a violation of safety standard 30
§ 75.205 which provides:

C.F.R~

Where miners are exposed to danger from falls of roof,
face, and ribs the operator shall examine and test the
roof, face, and ribs before any work or machine is started,
and as frequently thereafter as may be necessary to insure
safety. When dangerous conditions are found, they shall
be corrected immediately.
Under the heading ",condition or practice" the citation
alleges the following:

A test of the rib condition was not conducted after a visual
examination was made for crosscut No. 28 and inby to the
longwall face of the 129th Left longwall section. A service
representative was performing an examination of a piece of
equiptrnent [sic] that was not operating properly. This
person was required to place himself in a close proximity to
the lower rib. The untested rib fell striking the victim
causing fatal injuries. This violation was issued during
the investigation of a fatal accident which occurred on
March 7, 1986.
The Respondent's Case
The respondent, Kaiser Coal Corporation of Sunnyside, in its
post-hearing brief accurately summarizes the evidence upon which
it is relying to prove its case. Respondent states that on March
7, 1986, Jerry Dimick, a service engineer for Halbach and Braun,
arrived at the Kaiser Supnyside No. 1 Mine for the purpose of
examining a malfunctioning Halbach and Braun crusher at the 19th
left outside longwall area ·(Tr. 29-30). Mr. Dimick was an
experienced miner, having worked underground several years prior
to becoming a service representative (Tr. 44). Mr. Dimick met
Duane Wood, the general longwall foreman, at the bathhouse and
asked to go with Mr. Wood into the mine to take a look at the
crusher (also referred to a chunk breaker and as a stage loader)
(Tr. 157).
Mr. Dimick and Mr. Wood reached the longwall face at 19th
Left after 11:00 a.m. (Tr. 157-58). They first noticed water
leaking from a hose going to the crusher. After the leak was
repaired, Mr. Dimick checked the valves on the controller of the
crusher (Tr. 158).

1166

Mr. Dimick knelt down between the crusher and the rib to
look at the equipment. Mr. Dimick's back was toward the rib (Tr.
162-63). Mr. Wood crossed over the crusher to the "up-dip" side
to look at the crusher from the other. side (Tr. 159). While Mr.
Dimick was kneeling down looking at the crusher, Mr. Gary Kuhns,
a section foreman, came from the bottom of track entry and walked
by Mr. Dimick on his way to the face (Tr. 92). Mr. Kuhns
proceeded to help the headgate operator shovel loose coal from
the bottom jacks. As he looked toward the area where Mr. Dimick
was kneeling, Mr. Kuhns saw the rib slide down and roll over in
the area where Mr. Dimick was kneeling (Tr. 34, 92-93). Mr.
Kuhns estimated the piece of rib which fell on Mr. Dimick to be
six feet by four feet by two feet, with a feathered edge on one
side (Tr • 9 3 ) •
Mr. Kuhns ran to Mr. Dimick and shouted for Mr. Wood. Mr.
Wood came over the crusher and, with Mr. Kuhns, tried to lift the
coal but could not. The section crew came down the face and five
to seven people were required to lift the piece of coal off Mr.
Dimick (Tr. 160).
Mr. Dimick was transported to the hospital and passed away
while in intensive care that evening.
An investigation team composed of representatives from the
Mine Safety and Health. Administration ("MSHA"), the Company, the
State Mine Inspector, and the miners undertook an investigation
beginning at about 6:00 p.m. on March 7 CTr. 15-16). At approximately 8:00 p.m., the investigation team was notified that Mr.
Dimick has passed away. At that t.ime, the MSHA inspectors issued
a section 103(k) withdrawal order (Order No. 283484l)(Tr. 27).
MSHA subsequently interviewed a number of employees of
Kaiser, including those who had worked and traveled in the area
prior to the accident. All of the miners reported that they had
visually examined the rib as they traveled and could see no
apparent anomaly or problem (Tr. 33-34, 38, 58). During the
hearing, both Mr. Wood and Mr. Kuhns testified that they had
carefully examined the rib visually immediately before the
accident and had concluded that the rib was sound (Tr. 91-92,
155-56). In fact, Mr. Kuhns testified that he had been though
the area "a dozen times or ~ore during that shift, and there had
been no changes, and I pay particular attention to changes" (Tr.
95) •
Mr. Wood testified that Tony Gabossi, the manager of the
MSHA off ice in Price, told him that if there had not been a
fatality, the citation would not have been issued (Tr. 171). In
addition, Mr. Andrews testified that if Mr. Dimick had survived,
no closure order would have been issued (Tr. 63-64).
Rib Conditions in Mine Generally
The Kaiser Sunnyside No. 1 Mine is a deep mine with up to
2,500 feet of overburden, which pla~es cons\derable weight upon
the coal. The coal is "soft," meaning that it yields to pressure
from the weight. As a result, there is considerable sloughing of

1167

coal {Tr. 142). There has never been any suggestion from MSHA
that the sloughage be cleaned up regularly, as it actually serves
to help support the ribs (Tr. 143-44).
Because of the nature of the coal in the mine, sounding or
tapping and listening to the ribs is ineffective in detecting
problems because the coal sounds the same whether it is tight or
loose (Tr. 40, 41, 79-80, 129). The practice of the miners at
Kaiser is to examine visually the ribs in their working and
travel areas.
If a crack, overhang, or other problem is identified, the procedure is to bar the rib down using a pry bar or
equivalent before beginning work (Tr. 142, 147).
Mr. Wood and Mr. Howell testified that during their years at
the Sunnyside No. 1 Mine, they had accompanied MSHA inspectors
many times underground, and except for visits by Mr. Lee Smith of
MSHA in the aftermath of the accident, they recalled no inspector
either tapping or directing that. someone tap the ribs for the
purpose of testing their soundness (Tr. 152, 201-02).
In fact,
the citation was abated through hazard training of the employees
on roof and rib control, which did not include any instruction on
physical testing of the ribs (Tr. 74-75). It is significant that
Mr. Andrews attended the training which constituted the abatement, and did not either instruct the miners himself that
physical tapping is necessary or require that the company instruct the miners on the need for physical tapping of the ribs
(Tr. 74-75, 187-88).
Mr. Wood and Mr. Kuhns testified that tapping the ribs at
the Sunnyside No. 1 Mine could present a hazard because, even if
the coal had been tight before the tapping, the tapping could act
to loosen the coal. At that point, the 16ose coal would be a
hazard and would have to be barred down (Tr. 96, 148-49).
Mr. Andrews, the MSHA inspector who issued the citation,
testified that tapping the coal to observe visually whether there
is any problem, either through movement or through chunks falling
from the ribs, was the best way to determine its soundness.
In
fact, Mr. Andrews testified that after hitting a rib to test it,
an individual should hit it again "to see if the first test had
caused it to become loose enough to fall when you tapped it
again, or if it would create some type of crack which you could
visually see and try to bar down" (Tr. 61). However, Mr. Andrews
also testified that if sloughage comes off the rib after it is
hit, it does not necessarily mean the rib is loose (Tr. 62).
Mr. Andrews could not identify either time or distance
intervals within which the tapping should be done, except to
state that under ideal rib conditions, the rib should be tapped
every two or three steps, stopping if "there was a different
sound" (Tr. 69-73). However, in the twelve and one-half years he
worked in and inspected the Sunnyside No. 3 Mine, he could recall
no instance where he walked along a rib, tapped it, and detected
a problem through sound (Tr. 73-74).

1168

Mr. Andrews testified that even if tapping and sounding is
ineffective, he would require it as an MSHA inspector because the
regulation requires both visual and physical examination and
testing (Tr •. 85}.
Petitioner's Case
On March 7, 1986 Bruce Andrews, a coal mine safety and
health inspector, received information that a serious accident
had occurred at the Kaiser Sunnyside Mine No. 1. Mr. Andrews,
along with another coal mine Inspector Jerry Lemon, proceeded to
the mine and arrived at the Sunnyside Mine at approximately 6:00
p.m. on March 7, 1986 (Tr. 15). Upon arrival at the mine Mr.
Andrews and Mr. :Lemon were met by.the safety director for Kaiser
Coal, Jerry Howell. Mr. Howell accompanied the inspectors
underground and the party proceeded to the 19th left longwall
section crosscut 28, the site of the accident (Tr. 16).
Upon arrival at the accident site, Mr. Lemon conducted a
visual examination and testing of the ribs next to the lower part
of the crusher (Tr. 22}. Mr. Lemon then proceeded across the
crusher to the uphill side of the ribs. There he noticed that
there were cracks in the ribs and was told by the safety director
that no one was allowed to be on the topside of the crusher or ·
the uphill rib because of the unsafe condition of the ribs (Tr.
23). Mr. Lemon, however, did perform tests on the rib at that
time (Tr. 211, 212). While performing those tests, Mr. Lemon
asked to be brought a scaling bar so that he could bar down the
loose ribs (Tr. 26).
The next morning, March 8, 1987, Mr. Andrews returned .to the
accident site. He was accompanied by Ted Caughman, a Senior
Special Investigator for MSHA, and Tony Gabossi, supervisor in
the MSHA Price Field Office (Tr. 28). The inspectors conducted
interviews with persons who were in ·the area of the accident and
who had information regarding the accident (Tr. 29).
The interviews with these persons showed that the victim of
the accident, Mr. Jerry Dimick, arrived at the mine on the
morning of March 7th (Tr. 30). Mr. Dimick, a representative from
Halbach and Braun a mining service company, reported to the mine
to check the malfunctioning crusher CTr. 30). Mr. Dimick was met
by Duane Wood, the general longwall foreman for Kaiser Coal, and
the two men proceeded underground to the crusher zone area (Tr.
31). Upon arriving at the crusher Mr. Wood indicated that he
conducted a visual examination of the roof and ribs in that area
(Tr. 31, 155). Mr. Wood looked at the rib in the area near where
Mr. Dimick would be working on the crusher and saw no cracks in
the ribs. He had traveled the area several times that morning
with crew members who also visually examined the rib and did not
see any problems (Tr. 155). Prior to Mr. Dimick entering the
area however, no testing of the ribs was conducted (Tr. 35). Mr.
Dimick then proceeded to examine the crusher.
In order to
conduct the examination Mr. Dimick knelt down on the downhill
side of the rib between the crusher and the rib (Tr. 32). While

1169

Mr. Dimick was in that position, Mr. Wood crossed over the
crusher to the other side and was looking underneath the crusher
from the uphill side of the rib. Although the safety director
indicated to Mr. Lemon that no one was to be on that uphill side,
Mr. Wood indicated that on that particular day he crossed to the
upper rib, visually examined the rib, but conducted no testing on
that uphill si~e (Tr. 178).
While Mr. Dimick was examining the crusher from the kneeling
position, two miners, Gary Kuhns, a section foreman, and Darrell
Leonard, passed by him on the lower side of the crusher. Both of
these miners indicated that they visually examined the rib as
they walked by· Mr. Dimick but did no testing (Tr. 33, 34). Mr.
Kuhns testified that when walking past Mr. Dimick, he had no more
than two feet of space in which to walk between Mr. Dimick and
the rib (Tr. 91).
In fact, Mr. Kuhns had to turn to the side in
order to get around Mr. Dimick (Tr. 91). Mr. Kuhns walked past
Mr. Dimick and proceeded to the head gate area of the longwall
section. While he was helping the head gate operator Mr. Kuhns
looked down the entry, ~aw Mr. Wood on the uphill side of .the
crusher but could not see Mr. Dimick on the bottom of the
downhill rib (Tr. 34). Mr. Kuhns then saw a rib, approximately
6' x 4' and 2' thick, slide and tip over in the area where he had
seen Mr. Dimick kneeling (Tr. 34, 93). Mr. Kuhns shouted to Mr.
Wood and the two men ran over to find Mr. Dimick trapped under
the fallen rib (Tr. 34, 93, 94).
On the day of the accident, March 7, 1987, several other
miners had been traveling in the area and passing between the
crusher and the downhill rib. The area was a walkway for the
longwall crew who passed through this section when they went to
work in the morning, when they went to lunch, and when they left
the area at the end of the day.
Anyone traveling from the
longwall face to the head gate had to pass through this
particular area (Tr. 35). The miners passing through this area
on March 7th indicated that they had conducted a visual examination of the rib but had not conducted any testing of the
ribs on the lower side of the crusher (Tr. 35).
Mr. Kuhns indicated- that when he walked past Mr. Dimick to
the headgate area, he visually inspected the rib as he walked by
but did not conduct any physical test of the rib nor did he observe anyone else conducting a physical test of the rib (Tr. 94).
In fact, Mr. Kuhns testified that he does not make it a practice
to physically test those ribs (Tr. 95). During the time Mr.
Dimick was in the area between the rib and the crusher, no one
conducted a test of the rib, nor were there any test of the rib
conducted prior to Mr. Dimick's entering the area (Tr. 42).
It is the Secretary's position that prior to the accident,
several things occurred in the longwall section that indicated
that the ribs should have been tested.
The ribs in this mine could have been tested prior to the
accident in one of two ways to determine if there were any

1170

hazards present. First, a sounding test, also known as the sound
and vibration test could have been conducted. Sounding to test
the rib is merely to hit the rib and listen for the sound. A
sharp ringing sound will indicate the rib is fairly stable and a
drummy hollow sound will indicate that the rib is weak or
fractured (Tr. 111). Where the ribs are prone to sloughing or
pressure they will sound hollow or loose. A hollow sound
indicates that the rib should be scaled down (Tr. 40). Although
a sounding test is not always accurate it is one of the several
ways in which to determine the competency of the ribs and is more
valuable in some areas of the mine than others (Tr. 111, 112).
The second test that can be done to determine the competency
of a rib is a physical test. A physical test is .conducted in
much the same way as the sound and vibration test. The test is
conducted by hitting the rib with a scaling bar or some other
long instrument. Once the rib has been hit or tapped the person
conducting the test can then watch the rib to see if there are
any indications of movement in that piece of coal or rib. A
movement will indicate a need to pull down the rib (Tr. 39, 40,
114) •
While neither of these two methods of testing roof and ribs
is fool proof, they are helpful in locating unstable ribs (Tr.
112). A visual observation alone may fail to detect a hazard
that a sounding method or the physical method of testing may
detect. The test may also confirm a hazard that is already
suspected (Tr. 112). The two tests, the sounding test and the
physical test, are both conducted with a long bar or stick.
In the Sunnyside Mine both the sounding test and the
physical test are appropriate (Tr. 120). It is acknowledged,
however, that different types of ribs require different types of
control and evaluation (Tr. 121). It is the Secretary's position
that the conditions or type of rib will not excuse an operator
from conducting the tests required by the regulation. Which test
to use, sounding or physical, depends on the condition of the
mine and the ribs at the time. Mr. Wood testified that sounding
probably would not have told them anything about the rib in the
area of the accident on March 7th (Tr. 179). However, he did
admit that a visual exam~nation of a rib cannot always tell where
there is a problem (Tr. 181), and that it is possible that a
physical test, that is tapping of the rib and then observing to
see if anything occurred, would have shown a problem in the area
of the accident (Tr. 179, 191, 192). The mine inspectors agree
·that a sounding test in this mine may give a false indication but
a physical test is the best indication of a problem, partly
because this mine uses yieldable pillars which are prone to
sloughage (Tr. 41). A visual examination alone is not an
accurate indication of the condition of the ribs and does not
always reveal a fall danger (Tr. 102, 210). Therefore, in
working around roof and ribs a miner first makes a visual
examination or observation to detect a hazard and then additional
tests are conducted to reveal the presence of any further hazards
(Tr. 102).

1171

It is the Secretary's contention that tests, in addition to
visual examination, are required under the Mine Safety and Health
act when certain conditions exist that may post a danger to a
miner (Tr. 43). There are several indications that would reveal
to a miner that he may be exposed to danger and more than a
visual examination is necessary. The indications present in this
case were listed by the Mine Safety and Health inspectors who
testified in this case.
Bruce Andrews has been a mine inspector for nine and a half
years, has worked at the Sunnyside No. 1 mine, and has extensive
experience with roof and rib control (Tr. 12, 14). Lee Smith is,
and has been for one and a half years, a supervisor roof control
specialist for the Mine Safety and Health Administration (Tr. 98).
Prior to becoming the supervisor roof control specialist Mr.
Smith was a Mine Safety and Health inspector for seven years and
worked in the coal mines-for approximately four and a half years
(Tr. 99). Mr. Smith is in charge of all roof control plans; his
primary specialty is roof control and he has had extensive
training in roof and rib control (Tr. 99, 100).
Mr. Andrews and Mr. Smith both indicated that under the
circumstances present at the Sunnyside No. 1 mine on March 7,
1987, a physical test should have been ~onducted of the ribs in
the area where Mr. Dimick was working based on four specific
items. These items should have been known by the management and
should have indicated to mine management a danger from a rib fall
and a need for a test. The four items are: 1) the history of the
mine; 2) the proximity of Mr. Dimick to the rib; 3) the fact that
Mr. Dimick was not an employee of the mine; and 4) the shearing
operation that had occurred approximately fifteen minutes prior
to the accident.
The testimony is undisputed that the Sunnyside No. 1 mine
has a history of bad ribs. Mr. Smith has conducted an inspection
of the Sunnyside No. 1 mine on two occasions; each time for the
purpose of examining the roof and ribs. The first inspection
occurred in the summer of 1986, several months prior to this
accident and was prompted by the fact that Sunnyside Mine had
been listed as a mine with a high incident rate of accidents
resulting from fall of roof and ribs (Tr. 105, 108, 109). On his
first visit Mr. Smith was conducting a six-month review of the
Sunnyside No. 1 mine roof control plan. On that visit Mr. Smith
found that the areas in the Sunnyside Mine he visited had ribs
that were unstable, showed evidence of sloughage and appeared to
be incompetent (Tr. 106). The sloughage and the problem with the
ribs began shortly after initial development in the areas he
visited (Tr. 106). The problem is in part caused by overburden
at this mine that exerts pressure on the coal seam in a downward
manner and places excessive weight on the ribs (Tr. 108). On his
first visit to the mine Mr. Smith discussed problems concerning
the ribs with mine management and was told by management that
they were certain that the ribs were incompetent and acknowledged
that the rib problem was due to various conditions, one of them
being the amount of overburden (Tr. 108, 109) •

. 1172

Mr. Smith made his second visit to the Sunnyside No. 1 mine
on February 7, 1987, and again inspected the rib conditions.
Again, the ribs showed evidence of sloughage, there were fracture
lines and evidence that the ribs were unstable (Tr. 110).
Based on his observations of the Sunnyside No. 1 mine, Mr.
Smith considers it proper to first conduct a visual observation
of the ribs. Then, using the sounding method or the physical
test, the miner should determine if the ribs are loose and should
be pried down (Tr. 111). In a mine with these conditions, where
there is a history of the mine that indicates a particular coal
seam has poor or substandard. ribs, then.more than a visual
observation is r~quired to prevent a hazard (Tr. 113) •· Again,
the visual observation of a rib may not always indicate a hazard
but the history of the mine indicates that further testing should
be completed (Tr. 113). Here given the history of the Sunnyside
Mine and the unstable ribs along with the incident rate indicated
by Mr. Smith, there is a need to do tests to determine if a
hazard exists (Tr. 115, 116).
Bruce Andrews, a cioal mine safety and health inspector, who
has extensive experience in coal mines and has worked in the
Sunnyside Mine agreed with Mr. Smith that it is general knowledge
that the condition of the ribs in that mine are substandard (Tr.
47). Mr. Andrews also indicated that the overburden was a
particular problem and contributed to the unstable condition of
the ribs (Tr. 47). The substandard condition of the ribs should
have been known to the miners who work in that mine and in the
particular area of the accident (Tr. 47).
Mr. Kuhns, a miner and section foreman at Kaiser Coal;
indicated that he was aware that the ribs were not particularly
good in that mine (Tr. 91) and the two witnesses for the
operator, Duane Wood and Jerry Howell, agreed that they were
aware of the substandard condition of the ribs in the Sunnyside
Mine. Mr. Wood indicated that mine management is aware of the
ribs problem {Tr. 176) and that MSHA has always discussed
sloughage in entries with Kaiser Coal (Tr. 174). In fact, that
subject has come up with almost every inspector involving Kaiser.
There was sloughage caused by the poor condition of the ribs
around the area where Mr. Dimick was working and that sloughage
made it difficult to walk in the area (Tr. 175, 176).
In most
cases throughout the mine, Mr. Howell testified, the ribs are
soft, they show signs of sloughage and failure, making it
necessary for Kaiser to keep a close eye on the ribs and to pry
down the bad spots (Tr. 176). Finally, Jerry Howell, safety
manager at Kaiser Coal, indicated in his testimony that ribs were
bad at the time of the accident in March of 1986 (Tr. 206).
As Mr. Smith testified, when he visited the mine he saw
sloughage which indicated that the ribs were loose, were being
subjected to stress, and indicating that the ribs could become
unstable and incompetent (Tr. 118). Mr. Smith's testimony along
with that of Mr. Andrews and the miners who worked in the Sunnyside Mine leave no doubt that there was a history of sloughage

1173

and bad ribs in the Sunnyside Mine. The Secretary points out
that this factor is very important in considering when a test of
the ribs should be conducted.
The second factor addressed by the mine inspectors in considering that a test was necessary prior to the accident is the
proximity of the workplace to the rib. When a miner's work
position brings him into close proximity of the rib a physical
test is appropriate (Tr. 103). In certain areas of tqe Sunnyside
Mine where there is no equipment, miners can walk in the center
of the walkway a distance from the rib thereby avoiding exposure
to a hazard from a rib fall.
In fact, in most areas of the mine·
the miners as well as the mine inspectors, walk in the middle of
the walkway so as not to get too close to the ribs (Tr. 82, 207).
Sunnyside Mine instructs its miners to walk in the middle of the
entry to, in effect, position themselves as far away from the
ribs as possible (Tr. 116). However, in the area where the
accident occurred, it was necessary to walk closer to the rib
than in other areas of ~he mine (Tr. 82). Whenever a miner's
work position would place him closer to a rib than the center of
the entry, there is a need to test the rib (Tr. 117).
Here Mr. Dimick was positioned between the crusher and the
lower rib.
He was in a kneeling position with his back towards
the rib, a dangerous position as it would be difficult for him to
observe the rib from that location and be aware of the condition
of the rib (Tr. 117).
Not only was the kneeling position significant, but the fact
that Mr. Dimick was in close proximity to the rib, within a few
feet and directly in line for any fall of the rib. Mr. Kuhns
testified that he was required to walk sideways in order to pass
Mr. Dimick, indicating that Mr. Dimick was kneeling within a few
feet of the rib.
In addition, on March 7th other miners were
traveling in the longwall area and had no choice but to walk very
close to the rib. This was another indication that a physical
test should have been conducted. Since Mr. Dimick was required
to work just a few feet from the rib in a confined area, the ribs
should have been te~ted.iTr. 43).
In conjunction with Mr. Dimick's working position in the
mine, that is, kneeling very close to the rib, mine inspector,
Mr. Andrews and the supervisory roof control specialist, Mr.
Smith, both indicated that another factor they considered in
determining whether a test of the rib should have been conducted
is that Mr. Dimick was not an employee of the mine (Tr. 44). In
fact, Mr. Wood, the longwall foreman who accompanied Mr. Dimick
underground, testified that he would go to an extra length to
inspect the ribs when accompanying someone into the mine who is
not an employee of Kaiser Coal (Tr. 177). The obvious reason for
conducting a test when a non-employee is present in the mine is
that the non-employee may not be aware of the history or condition of the ribs and, therefore, may be unknowingly subjecting
himself to a hazard.

1174

The fourth, and final, factor discussed by the inspectors in
this case relative to the need for a physical or sounding test is
that mining was going on near the location where Mr. Dimick was
working and the shearing process had been completed only fifteen
minutes prior to the accident. As Mr. Smith testified, most roof
fall fatalities occur within 25 feet of the face.
The closer you
get to where the coal production is being done the greater your
chances of being involved in a fatal accident (Tr. 118).
Mr. Dimick was working in an area near the headgate entry at
the crusher. The headgate entry is an area of primary activity
where the actual mining of coal is being conducted (Tr. 36).
Just prior to the. accident, approximately fifteen minutes
earlier, the longwall shearing machine had come down and cut
through the headgate entry and then traveled back up the longwall
face (Tr. 36). This shearing procedure involves weight
transference or a.transfer of stress, which in turn has an effect
on the rib CTr. 103). The procedure generally causes sloughage
and the ribs to loosen (Tr. 36). The closer the shearing process
is to the rib, the more likely it is to cause a problem or weaken
the rib, particularly in the case of the yieldable pillar that is
present in the Sunnyside Mine (Tr. 104).
Mr. Andrews, who worked in this mine, was aware of the
effect that the shearing procedure had on the ribs (Tr. 37).
It
follows then, that miners and management who work in the mine
would be aware of the effect of the shearing process on the ribs.
Since this process had occurred approximately fifteen minutes
prior to the accident, changes .. would have occur~ed in the area
where Mr. Dimick was working, thereby exposing him to a danger of
rib fall (Tr. 37). Therefore, because qf the work being done in
the longwall section, the conditions of the rib were continually
changing, and a test should have been conducted prior to Mr.
Dimick working in a position directly next to the rib (Tr. 84).
It is the Secretary's position that the standards express
testing requirement Cin addition to visual observation) was
written as a result of the large number of fatalities and serious
injuries due to rib and roof falls.
The standard has a two-part
requirement, first, the mine operator must observe or visually
examine and, second, it must conduct a test {Tr. 122). The
frequency of testing de~ends on the mining conditions, the
characteristics of the coal seam, the position of the worker, and
the type of work being performed, among others (Tr. 122). Even
though testing is required by this standard, prior to the
accident that took the' life of Mr. Dimick, no one at the Sunnyside No. mine had been instructed to do any sound testing or
physical testing of the ribs. Respondent does not instruct the
miners in the Sunnyside Mine to physically test the ribs at any
time (Tr. 207).
Discussion and Findings
At the hearing the parties stated that the primary issue in
this case is the proper interpretation of the safety standard 30

1175

C.F.R. § 75.205 as it applies to the condition of the ribs in the
Sunnyside No. 1 mine. The standard, in pertinent part, provides
as follows:
Where miners are exposed to danger from falls of roof,
face, and ribs the operator shall examine and test the
roof, face, and ribs before any work or machine is started,
and as frequently thereafter as may be necessary to insure
safety.
It is the operator's position that testing the ribs in this
mine is not only ineffective in detecting hazards but would
actually increase the potential hazard. Therefore, respondent
argues the safety standard as it applies to the mine in question
should be interpreted to require visual examination of the ribs
but not testing. It is the operator's contenti0n that the testing of the ribs in the Kaiser Sunnyside No. 1 Mine is useless
because it wouldn't demonstrate any problem and would weaken the
ribs and thus would create a potential hazard.
In other words
that testing the ribs would diminish safety rather than enhance
safety.
The safety standard 30 C.F.R. § 75.205 reflects the provisions of Section 302(f) of the Mine Act.
It is well established that the meaning of a statute or regulation must, in the first
instance, be sought in the language in which it is framed, and if
that is plain the sole function of the Courts is to enforce it
according to its terms. Caminetti v. The United States, 242 U.S.
470. When the language is clear and unambiguous it must be held
to mean what it plainly expresses. Thus, the safety standard by
use of the conjunctive "and" clearly requires both visual examination and testing of the ribs where miners are exposed to danger
from falls of ribs.
With respect to respondent.'s contention that testing of ribs
is useless, it is noted that Mr. Wood, Kaiser's general longwall
foreman, when asked if testing of the rib adjacent to where Mr.
Dimick was kneeling (the rib that came down and crushed him)
would have alerted him to the fact that there was a defect or a
potential hazard, replied "I don't know if the tapping procedure
would have done any good or not" (Tr. 191, 192).
Even assuming, arguendo, that respondent is correct in its
contention that testing of the ribs in the Sunnyside No. 1 mine
diminishes safety rather than enhances it, the remedy does not
lie in obtaining a ruling in an enforcement proceeding that the
mandatory standard as applied to its mine requires an interpretation of the standard that is different than that applied ·to
mines generally i.e. that visual examination without testing is
sufficient to comply with the requirement of the safety standard.
Such a ruling would not only defy the plain meaning of the regulation but conflicts with the previous Review Commission's
rulings on the defense of diminution of saf~ty and the need to
comply with the provisions of § 10l(c) of the Mine Act.

1176

In Sewell Coal, 5 FMSHRC 2026, the Review Commission stated
that section 10l(c) of the Mine Act preserves the same basis for
granting a variance that were contained in section 30l(c) of the
1969 Coal Ac~. Un<ler the mo~ific~ti0n provisions of the Mine
Act, the decision to grant or withhold a variance is made by the
Secretary of Labor. The MSHA regulation implementing section
lOl(c) provides for an initial decision by an administrator of
MSHA with the right of appeal ultimately to the Assistant Secretary of Labor for Mine Safety anJ Health. 30 C.F.R. §§ 44.13
44.33.
The Review Commission pointed out in Sewell Coal that the
phrase "diminution of safety" in Section lOl(c) of the Mine Act:
"serves as one of the following two bases for a determination by
the Secretary that an operator may depart from otherwise mandated •
compliance with a standard: Cl) If an alternative method of
achieving the results of the standard exists_ with no loss in the
measure of protection afforded to the miners by the standard: or
(2) if application of the standard to the mine will diminish the
safety of the miners."
In Penn-Allegh Coal Company, Inc., 3 FMSHRC 1392 at 1397-98,
the Review Commission ruled that an operator is foreclosed from
bypassing this statutory modification procedure and unilaterally
determining to forego compliance with a mandatory standard.
In Florence Mining Co., 5 F~SHRC 189, the Review Commission
stated that questions of diminution of safety must first be
pursued and resolved in the context of a modification proceeding
provided for in Section 101Cc) of the Act and held that the
Review Commission does not have jurisdiction to rule on petitions
for modification in enforcement proceedings.
With respect to respondent's argument that it relied or
should be allowed to rely on the acts and statements of MSHA
officials implementing regulations, the U.S. Court of Appeals in
Emery Mining Corp., (CA 10) 1983), sub .!!.Q!!! Emery Mining Corp., v.
Labor Department (Secretary) affirmed 3 MSHC 1001, 3 MSHC 1585
held that to the extent that an operator relies on interpretation
by MSHA officials of the Act's implementing regulations, the
operator assumes the risk that the interpretation was in error •
. Estoppel does not run against the federal government. Federal
Crop Insurance v. Merril, 332 U.S. 381.
Section 30 C.F.R. § 75.205 is a mandatory safety standard
that requires visual inspection and testing of the ribs where
miners are exposed to dangers from falls of the ribs.
In this
case it is clear from the evidence that the decedent Mr. Dimick
and.other miners were in an area where they were exposed to
danger from falls of the ribs.
It is undisputed that the
Sunnyside No. 1 mine has a history of bad ribs; that Mr. Dimick
had to work in a kneeling position in close proximity to the rib;
that other miners had to turn almost sideways when they passed
between Mr. Dimick and the rib~ and that approximately fifteen

1177

minutes before the accident the longwall shearing machine had
come down and cut through the headgate entry and traveled back up
the longwall face.
The violation of 30 C.F.R. § 75.205 was a significant and
substantial violation of a mandatory safety standard. The MSHA
inspectors testified that there was a serious safety hazard
because the operator failed to test the ribs. Even Mr. Wood,
respondent's longwall foreman admitted that physical testing of
the rib might disclose the hazard in that area (Tr. 179, 191).
There was a reasonable likelihood that the hazard contributed to
what would and did result in Mr. Dimick's fatal injury. There
was a reasonable likelihood that the injury in question would be
and in fact was of a reasonable serious nature.
The parties stipulated that if a violation of 30 C.F.R
75.205 was found that the appropriate penalty would be the
$1,000 penalty proposed by the Secretary. This stipulation is
accepted and the appropriate civil penalty is found to be $1,000.
§

Findings of Fact and
Conclusions of Law

1. Kaiser Coal Corporation of Sunnyside is engaged in
mining and selling of coal in the United States, and its mining
operations affect interstate commerce.
2. Kaiser Coal Corporation of Sunnyside is the operator of
Sunnyside Mine No. 1, MSHA I.D. No. 42-00093.03532.
3. Sunnyside Mine No. 1 is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977, u.s.c. § 801 et
seq. C 11 the Act 11 ) •

4. As an Administrative Law Judge of the Federal Mine
Safety and Health Review Commission I have jurisdiction to hear
and decide this matter.
5. The subject ci~ations were properly served by a duly
authorized represen~ative of the Secretary upon an agent of
respondent, Kaiser Coal coiporation of Sunnyside, ~n the dates
and at the places stated therein.

6. Mr. Dimick and other miners were exposed to a danger
from the fall of the ribs and the operator did not test the ribs
and thus was in violation of the mandatory safety standard 30
C.F.R. § 75.205.
7.

The violation is significant and substantial.

8. Kaiser Coal Corporation of Sunnyside is a large mine
operator with 817,276 tons of production in 1986.
9. The certified copy of the M8HA Assessed Violations
History accurately reflects the history of this mine for the two
years prior to the date of the citation.
1178

10. The operator demonstrated good faith in abating the
violation.
11. The $1,000 proposed civil penalty will not affect
respondent's ability to continue in business.
12.

The appropriate penalty for the violation of 30 C.F.R.

§ 75.205 is $1,000.

ORDER
Based upon the above findings of fact and conclusions of law
it is ordered that respondent shall pay the above civil penalty
of $1,000 within 30 days of this decision.

a

~

/P~_

~~~ G;(~.·

Augus'k:. F. Cetti
Administrative Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S.
Department of Labor, 1585 Federal Building, 1961 Stout Street,
Denver, CO 80294 (Certified Mail)
James A. Holtkamp., Esq., Vancott, Bagley, Cornwall & McCarthy,
50 s. Main Street, Suite 1600, Salt Lake City, UT 84145
(Certified Mail)
/bls

1179

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

22041

JUN 301987
FLORENCE MINING COMPANY,
Contestant

CONTEST PROCEEDING

.

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

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

.

Florence No. 2 Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,
Petitioner

.
.

CIVIL PENALTY PROCEEDING

v.

v.

Docket No. PENN 87-16
A.C. No. 36-02448-03575
Florence No. 2 Mine

FLORENCE MINING COMPANY,
Respondent

.
.

.

DECISION
Appearances:

Before:

Covette Rooney, Esq., u.s. Department of
Labor, Philadelphia, Pennsylvania, for
Secretary of Labor:
.
R. Henry Moore, Esq., Florence Mining Company,
Pittsburgh, Pennsylvania, for Florence Mining
Company.
·

Judge Fauver

These consolidated proceedings were brought under the
Federal Mine Safety and Health act of 1977, 30 u~s.c. § 801,
et seq. The company seeks to vacate a withdrawal order
charging a violation of a safety standard, and the Secretary
seeks to uphold the order and to have a civil penalty
assessed for the violation charged.
Having considered the hearing evidence and the record as
a whole, I find that a preponderance of the substantial,
reliable, and probative evidence establishes the following:

1180

FINDINGS OF FACTS
1. Respondent operates an underground coal mine, known
as Florence No. 2 Mine, which produces coal for sale or use
in or affecting interstate commerce.
2. On August 14, 1986, Inspector Ronald Gossard issued
an order pursuant to§ 104(d)(2) of the Act alleging a
violation of 30 C.F.R. § 75.1704 for an incident on August
13, 1986, involving the replacement of the hoist rope at the
Florence No. 2 Mine. The order reads as follows:
The slope hoist facility approved by MSHA to
transport injured miners from the mine was
removed from operation to .replace the hoist
cable while miners were underground. The
hoist was not.available for use from 9:30 a.m.
to 3:00 p.m. on August 13, 1986. The
operator's approved plan requires a person
trained to operate the hoist shall be
available when miners are underground to
transport injured persons to the surface.
This requirement implies that the hoist will
also be available for use when ~iners are
underground.
The order is a result of a 103(g)(l) request
from a representative of the miners dated
August 14, 1986.
3. The underground workings of the mine may be reached
by a slope from the surface. It is a "dual compartment"
slope with a track entry in one compartment and a belt entry
in the other. The slope is about 620 feet long, 16 feet wide
and 6 feet high.
In the first 200 feet of descent the grade
is about 16 degrees. This is the steepest part of the slope,
and after this section the grade lessens to 5 degrees. There
is track in the slope used by the materials hoist that lowers
supplies and equipment into the mine. A walkway runs down
the slope on the left side of the entry. Along the entire
length of the slope walkway a handrail and lighting are
provided. With the exception of about 100 feet where ties
are placed across the walkway to prevent damage to the hoist
rope around a curve, the walkway is concrete and relatively
smooth. The part crossed by ties (100 feet) is uneven and
would require careful stepping to carry a stretcher up the
slope.

1181

4~
The walkway is used by all miners entering and
exiting the mine on three shifts. The miners walk down the
slope and use transportation at the bottom to travel farther
into the mine. At the end of the shift, miners walk up the
slope.
Descent ~y walking usually takes two to three
minutes. It takes longer to ascend the slope.

5. Early in August, 1986, the company decided to
replace the hoist rope because of damage to the rope.
While
the hoist rope did not yet meet the criteria for mandatory
retirement of the rope, it was felt that it should be changed.
Management decided that this would be done on August 13,
1986, a production day, so that the hoist could be used the
next weekend to lower a new continuous miner into the mine.
There was no safety reason requiring that the hoist rope be
changed on a production day, and it would have been feasible
to change the rope on a Saturday or Sunday when miners would.
not be underground.
6. Some of the work of replacing the rope began on
August 12, when one end of the new rope was unspooled and
taken into the hoist house. The new rope was stretched from
the hoist house to the top of the slope where it lay until
work began the next day to replace the old rope.
7. Sometime after 9:30 a.m. on August 13, when the day
shift miners were working underground, the old rope was taken
off the hoist, and it was removed from service. Replacement
of the rope took until about 3:30 or 4:00 p.m.
8. After the new rope was installed, there.were some
problems with twists that were observed in the rope. The
midnight shift did not go into the mine until 5:00 a.m. on
August 14, while management sought to correct the condition.
9. A union complaint was made to MSHA pursuant to
103(g) of the Act c9ncerning the twists in the rope.
Inspector Gossard went to the mine about 9:00 a.m.
on August 14, in response to this complaint.
§

10. Inspector Gossard inspected the hoist rope to
determine if the twists in the rope had caused any damage.
After he determined that no damage had occurred and that no
violation existed, he was given a second § 103(g) complaint
concerning the replacement of the rope while miners were
underground. He investigated this complaint and found that
the hoist rope had been changed the previous day while miners
were underground. There was no dispute about this incident
occurring, and management acknowledged that the hoist had
been taken out of service to change the hoist rope, fr9m

1182

about 9:30 a.m. to 3:00 p.m., on August 13. Based upon his
investigation, Inspector Gossard issued§ 104Cd)(2) order
charging a violation of 30 C.F.R. § 75.1704. The order was
issued August 14, 1986.
DISCUSSION WITH FURTHER FINDINGS
The Secretary's Authority Under§ 104(d)
§ 104(d) of the Act provides:

{d){l) If, upon any inspection of a coal or
other mine, an authorized representative of the
Secretary finds that there has been a violation of
any mandatory health or safety standard, and if he
also finds that, while the conditions created by
such violation do not cause imminent danger, such
violation is of such nature as could significantly
and substantially contribute to the cause and
effect of a coal or other mine safety or health
hazard, and if he finds such violation to be caused
by an unwarrantable failure of such operator to
comply with such mandatory health or safety
standards, he shall include such finding in any
citation given to the operator under this Act. If,
during the same inspection or any subsequent
inspection of such mine within 90 days after the
issuance of such citation, an authorized
represenative of the Secretary finds another
violation of any mandatory health or safety
standard and finds such violation to be also caused
by an unwa·rrantable failure of such operator to so
comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area
affected by such violation except those persons ,
referred to in subsection (c) to be withdrawn from,
and to be prohibited from entering, such area until
an authorized representative of the Secretary
determines that such violation has been abated.
(2) If a withdrawal order with respect to any area in
a coal or other mine has been issued pursuant to
paragraph Cl), a withdrawal order shall promptly be
issued by an authorized representative of the Secretary
who finds upon any subsequent inspection the existence
in such mine of violations similar to those that
resulted in the issuance of the withdrawal order under
paragraph Cl) until such time as an inspection of such
mine discloses no similar violations. Following an
inspection of such mine which discloses no similar

1183

violations, the provisions of paragraph Cl) shall again
be applicable to that mine.
Respondent argues that the issuance of a§ 104(d)(2)
order charging an unwarrantable failure violation is improper
when it results from an "investigation" rather than an
11
inspection. 11 A number of decisions or orders of Commission
judges have so held. Four of those cases are pending on
review before the Commission.
This line of cases began with Judge Steffey's decision
in Westmoreland Coal Company v. Secretary, Docket No. WEVA
82-340-R, Order Granting in Part Motion for Summary Decision
(May 4, 1983). The other decisions follow the reasoning of
the Westmoreland decision.·
Westmoreland involved thirteen§ 104(d)(2) orders issued
July 15, 1982, based on an investigation conducted in
December 1980, which followed a mine explosion which occurred
November 7, 1980. Judge Steffey concluded from his study of
the legislative history of the 1969 Act that an inspection
was thought to be capable of being conducted in a single day,
and an investigation could take weeks or months. He thought
it significant that the 1977 Act permitted a citation or an
imminent danger closure order to be issued "upon inspection
or investigation, 11 whereas the 1969 Act requirement that
unwarrantable failure orders be issued "upon any inspection 11
was continued in the 1977 Act. Judge Steffey concluded that
"Congress did not intend for unwarrantable failure provisions
of § 104{d) to be based on lengthy investigations" or upon "a
belief" that a violation occurred. The orders before him
were based not "upon an inspection but upon sworn statements
taken during an accident investigation made 19 months prior
to the time the orders were issued." Judge Steffey's order
vacating the withdrawal orders was based on the facts that
they resulted from subsequent investigations and not from an
inspection and that they were not issued "promptly" as
required by § 104(d)(2).
The "unwarrantable failure" designation was first
enacted in the Federal Coal Mine Safety Act Amendments of
1965, Pub. L. 89-376. Called the "reinspection closing
order," the new provision was added "to stem certain
recurrent violations of safety standards in underground coal
mines." S. Rep. No. 89-1055, 89th Cong. 2d Sess., reprinted
in 1966 U.S. Code Cong. Ad. News 2072, 2075. Attempts to
limit the scope and applicability of the new provision were
flatly rejected.
Id. at 2077-2079. In including the
provision in the 1977 Act, Congress again stated that the
"unwarrantable failure" section should be broadly construed.

1184

Noting that the Interior Board of Mine Operations Appeals in
some early 1969 Act cases had taken "an unneccessarily and
improperly strict view of the 'gravity test' contained in the
provision [Eastern Associated Coal Corp. 3 IBMA 331 {1974)],"
the Senate Report stated its approval of the Board's less
restrictive reinterpretation in Alabama By-Products Corp., 7
IBMA 85 (1976). s. Rep. 95-181, 95th Cong., 1st Sess. 31-32
(1977). Similarly, the Senate Report rejected the Board's
initial interpretation of the term "unwarrantable failrire to
comply" as to6 narrow, and fully embraced the liberalized
definition set forth in Zeigler Coal Company, 7 IBMA 280
(1977) (discussed further below), which stated that "the
inspector's judgment must be based upon a thorough
investigation •• ~" (at 296).
The legislative history of the 1977 Act shows that
Congress did not intend· to change the unwarrantable failure
provisons of the 1969 Act. The language of § 104(d) was
carried over intact, and after referring to the above
liberalized reinterpretations by the Interior Board of Mine
Operations Appeals, the Senate Committee Report stated:
"These decisions considerably_ restored the unwarrantable
failure closure order as an effective and viable enforcement
sanction in essentially the same form •••• " S. Rep. No.
95-181, 95th Cong., 1st Sess., 3Z (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th
Cong. 2d Sess., Legistative History of the Federal Mine
Safety and Health of 1977, at 620 (1978).
The 1969 Act used only the term "inspection" in § 104,
which provided for issuance of notices of violation
(citations under the 1977 Act) and closure orders for
imminent danger and unwarrantable failure to comply.
However, the case law under the 1969 Act shows that notices
and orders could be issued without the inspector actually
observing the cited condition or conduct. Sewel Coal Company
2 IBMA 80 (1975); Rushton Mining Company, o IBMA 329 (1976);
Peabody Coal Company, 1 FMSHRC 1785 (1979).
The 1977 Act uses the term "inspection or
investigation" in referring to citations (§ 104(a)) and
imminent danger withdrawal orders (107(a)). It uses only the
term "inspection" in referring to 104(b) closure orders for
failure to abate a citation, and ln referring to 104(d)
citations and orders.
Even though only the term "inspection" is used in
the "findings" required, i.e., an unwarrantable
failure and a significant and substantial violation, clearly
require a thorough investigation of the circumstances of the

§ 104(d),

1185

violation, the background facts, the actual or constructive
knowledge of the mine operator, etc. ~hus, the word
"inspection" is not per~ a limitation on the inspector's
role and authority in§ 104(d). Similarly, § 103(g)(l) of
the Act uses only the t~rm "inspection" concerning the right
of a.representative of miners (or a miner if there is ·not a
representative) to require MSHA to come to the mine in
response to a complaint of a violation of the Act or of an
imminent danger. Clearly, if the operator corrects the
condition before the inspector arrives MSHA may still proceed
with an investigation of the § 103(g) complaint despite the
use of the term "inspection." Otherwise, the miners'
important right to complain to MSHA could be frustrated by
on-off compliance depending on the presence of an inspector.
Also, there are many kinds of violations that can be
established by undisputed evidence, ~., mine records or
statements of mine management, even though the violation may
have ceased before the inspector arrives. To say that this
type of evidence cannot substantiate a § 104(d) citation or
order unless the violation is still in progress when the
inspector arrives is to pursue a narrow, restrictive
interpretation of the statute. Congress, however, intended a
liberal construction of the Act to effectuate its
purposes. The focus of § 104Cd) is the operator's failure to
abide by a safety and health requirement, not the inspector's
discovery of the violation in progress.
For all these considerations, I must disagree with those
of my colleagues who have held that an "inspection" as used
in § 104(d) limits the inspector's authority to apply that
section only to violations he observes in progress. I hold
that § 104(d) citations and orders may be issued for
violations that are reasonably recent, consistent with the
prompt disposition intended by§ 104(d), even though the
violation ceased before.the inspector's arrival on the scene.
Relevant factors in·determining the reasonableness, of the
inspector's use of § 104(d) authority may include the recency
of the violation, the quality of the information relied upon,
the time spent in the investigation, the extent to which
controlling facts are undisputed, ~., facts that are
evident from mine records, statements of mine management, or
undisputed statements of eye witnesses.
In the instant case, the violation was quite recent,
only the day before the inspector arrived, and it was quickly
established by acknowledged, undisputed facts.
These facts
showed that the hoist had been deliberately shut down from
about 9:30 a.m. to 3:00 p.m., on August 13, 1986. The
inspector also found that the approved escape facilities plan
required that a person trained to operate the hoist shall be

1186

available when miners are underground to transport injured
persons to the surface. He reasonably concluded that this
provision of the approved plan meant that mine management was
required to keep the hoist in service while miners were
underground.
Title 30, C.F.R. § 75.1404 Escapeways provides in
pertineI1t part:
Except as provided in §§ 75.1705 and 75.1706 at
least two separate and distinct travelable
passageways which are maintained to insure passage
at all times of any person, including disabled
persons, and which are to be designated as
escapeways ••• shall be maintained in safe
condition and properly marked •••• Escape
facilities approved by the Secretary or his
authorized representative, properly maintained and
frequently tested, shall be at or in each escape
shaft or slope to allow persons to escape quickly
to the surface in the event of an emergency.
[Emphasis added.]
There is no provision or exception allowing the operator
to close or remove the approved escape facilities for 5 1/2
hours while miners are underground.
It was therefore a
violation of this section to ··shut down the hoist while
miners were underground.
Was the Violation "Unwarrantable"?
The Senate Report on the 1977 legislation rejected the
Interior Board of Mine Operations Appeals' initial
interpretation of the phrase "unwarrantable failure to
comply" in Eastern Associated Coal Corporatin, 3 IBMA 1331,
356 (1974), as too narrow, and fully embraced the more
liberal definition set forth in Zeigler Coal Company, 7 IBMA
280 (1977), as follows (quoted in the Senate Report from the
decision's syllabus}: The phrase unwarrantable failure to
comply means "the failure of an operator to abate a condition
or practice constituting a violation of a mandatory standard
it knew or should have known existed, or the failure to abate
such a condition or pr.actice because of indifference or lack
of reasonable care." s. Rep. 181, 95th Cong., 1st Sess.
31-32 (1977}, reprinted in Subcommittee on Labor, Senate
Committee on Human Resources, 95th Cong., 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act
of 1977, at 619-620 (1978).

1187

The Zeigler case was on remand from the United States
·court of Appeals for the District of Columbia Circuit, which
.had reversed the Interior Board and indicated a strong
rejection of the Board's interpretative approach in Eastern
Associated Coal Corporation.
On remand, in describing its earlier interpretation of
§ 104(d), the Board stated: "In Eastern Associated Coal
Corp., supra, 3 IBMA at 356, we gave the legislative history
only passing reference, preferring instead to place our own
gloss upon the statutory language ['unwarrantable failure to
comply']."
7 IBMA at 288. The earlier "gloss" was actually
agency rejection of a clear Congressional intent. The Board
described this prior interpretation as follows (7 IBMA at
28 6) :
In past cases, we have taken the position that an
inspector's finding of an unwarrantable failure to
comply should be sustained where MESA establishes
by a preponderance of the evidence that the
violation in question was the product of
intentional or knowing failure to comply or a
reckless disregard for the health and safety of the
miners. We rejected the theory that the term
"unwarrantable failure to comply" is synonymous
with ordinary negligence in the occurrence of a
violation. Eastern Associated Coal Corp., 3 IBMA
331, 356, 81 I.D. 567, 1974-1975 OSHD par. 18,706,
aff'd on reconsideration, 3 IBMA 383 (1974);
Freeman Coal Mining Company, 3 IBMA 434, 81 I.D.
723, 1974-1975 OSHD par. 19,177 (1974).
In remanding the first Zeigler decision, the Court of
Appeals cautioned the Board to take due account of the
legislative history of § 104(d) (see 7 IBMA at 287). On
remand the Board quoted and followed the legislative history,
overruled its Eastern Associated Coal decision, and
reinterpreted the meaning of "unwarrantable failure to
comply" based on the Congressonal intent, not the "gloss" the
Board had previously put on it. In doing so, the Board
recognized the following two pertinent pieces of the 1969
legislative history of the phrase "unwarrantable failure to
comply" as used in§§ 104(c)(l) and 104(c)(d)(2) of the 1969
Act, which are identical to §§104(d)(l) and 104(d)(2) of the
1977 Act {at 7 IBMA 289):
The primary piece of legislative history
is the definition of the term "unwarrantable
failure" set forth in the repott of the
Conference Committee, House Comm. on Ed. and Labor,

Legislative History, Federal Coal Mine Health and
Safety Act, Comm. Print, 9lst Congress, 2d Session
(hereinafter referred to as Leg. Hist.}, pp.
1108-1151. At page 1119, the Committee defined
that term as follows:
The term "unwarrantable failure"
means the failure of an operator
to abate a violation he knew or
· should have k~own existed.
A secortdary source of peitinent legislative
history is the Statement of the House Managers
which was a report by the House conferees to the
full House on the outcome of the Conference
Committee's deliberations. In relevant part 1 the
House Managers stated at Leg. Hist., p. 1030:
***The managers note that an
"unwarrantable failure of the
operator to comply" means the
failure of the operator to abate
a violation he knew or should
have known existed, or the failure to abate a violation because
of a lack of due diligence, or
because of indifference or lack
of reasonable care on the opera tor's part.
Thus in Zeigler, based upon the definition clearly
expressed in the 1969 legislative history, the Board
overruled its prior board-made definition, and reached the
following holding:
[W]e hold that an inspector should find that
a violation of any mandatory standard was caused by
an unwarrantable failure to comply with such
standard if he determines that the operator
involved has failed to abate the conditions or
practices constituting such violation, conditions
or practices the operator knew or should have known
existed or which it failed to abate because of a
lack of due diligence, or because of indifference
or lack of reasonable care. The inspector's
judgment in this regard must be based upon a
thorough investigation and must be reasonable.
(7 IBMA 295-296.]

1189

Iri reaching this holding, the Board added: "We are well
award that the terms of fault employed by the conferees and
the House Managers are largely synonymous with negligence,
one of the most familiar terms in American law." 7 IBMA 296,
Fn. 4.
In the 1977 Act, Congress carefully chose to retain
§ 104Cd) intact, without changing a word and by adopting the

clear, decisive legislative history of the phrase
"unwarrantable failure to comply." I therefore hold that the
phrase means the failure of an operator to abate a condition
or practice constituting a violation of a mandatory standard
it knew or should have known existed, or the failure to abate
such a condition or practice because of indifference or lack
of reasonable care.
Respondent relies upon the. Commission's decision in
United States Steel Corporation v. Secretary, 6 FMSHRC l423
(1984), in contending that the Commission has changed the
definition approved by Congress in the 1969 legislative
history, repeated by the Interior Board in Zeigler, and again
expressly approved in the 1977 legislative history of
§ 104(d).
I do not interpret the Commission's decision as
requiring a change in the legislative history definition of
"unwarrantable failure to comply." In United States Steel,
the Commission did not consider the 1969 legislative history
(which is crucial to an understanding of the current
§ 104(d)), and the Commission was careful to point out that
the case before it did "not require [it] to ex~mine every
aspect of the Zeigler construction" (6 FMSHRC at 1437). The
Commission's statement that followed

but we concur with the Board to the extent that an
unwarrantable failure to comply may be proved by a
showing that the vi~lative condition or practice
was not corrected or remedied, prior to issuance of
a citation or order, because of indifference,'
willful intent, or a serious lack of reasonable
care -does not purport to be a restrictive definition based upon
reconsideraton of the legislative history, but is merely one
kind of proof of an "unwarrantable failure to comply." If
the Commission's language were intended to be a new,
restrictive definition, rejecting the holding in Zeigler and
the unequivocal definition in both the 1969 and 1977
legislative histories, it would too closely resemble the
overruled and Congressionally-repudiated Eastern Associated

1190

coal decision of the Interior Board to be expected to be
announced by the Commission without its careful analysis and
reinterpretation of the legislative history. Absent such an
analysis and reinterpretation by the Commission, I do not
construe the Commission's decision in United States Steel
corporation as rejecting the definition stated in Zeigler and
in the 1969 and 1977 legislative histories.
Whether the clear legislative history definition or the
example added by the Commission in United States Steel
Corporation is applied in this case, I find that Respondent
demonstrated an unwarrantable failure to comply with the ·
cited safety standard when it deliberately shut down the
hoist for 5 1/2 hours on a production day. Respondent knew
or should have known that its approved escape facilities plan
and 30 C.F.R. § 75.1704 required that it maintain the hoist
in operating condition while miners were underground, and it
acted with indifference to the safety standard and with a
serious lack of reasonable care when it closed the facility
on a production day. It could have readily changed the hoist
rope on a weekend, when miners were not underground.
Was the Violation "Significant and Substantial"?
A "significant and substantial" violation is described
in§ 104(d)(l) of the Act as a violation of "such a nature as
could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
The Commission interpreted this language in Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (198l), as follows:
[A] violation is of such a nature as could
significantly and substantially contribute to the
cause and effect of a mine safety or health hazard
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.
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984), the
Commission discussed the standard of proof for a significant
and substantial finding, as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum, the Secretary of Labor must prove:
(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

1191

to will result in an injury1 and (4) a reasonable
likelihood that the injury in question will be of a
reasonably serious nature.
The purpose of the approved escape facility, the hoist,
is to provide safe and relatively fast transportation of
injured persons from the mine. This facility is an important
emergency protection of miners who may be injured underground.
It is faster than using a stretcher to carry a miner up the
steep, 620 foot slope, and it is. superior to a stretcher in
allowing more effective first-aid and immobilizing care. For
example, a stretcher case could not be administered CPR while
moving, but an injured person could receive CPR and other
first aid while going up the hoist1 a stretcher case would be
jostled while being carried up the long, steep slope, but an
injured person on the hoist would not be jostled. Because of
the superiority of the hoist over using a stretcher to ascend
the slope, the established practice since the hoist was
approved as an escape facility was to transport injured
persons out of the mine by the hoist rather than by stretcher.
By shutting down the hoist for 5 1/2 hours while the day shift
miners were underground, mine management consciously removed
an important emergency protection of the miners. This
reduction of their safety and health protection could
significantly and substantially contribute to the cause and
effect of aggravated injury, or even death, ~., in case of
severe shock, internal bleeding or burns. The violation was
therefore significant and substantial within the meaning of
104(d).
The Amount of a Civil Penalty
Respondent is a large operator. Its annual production
is about 8 1/2 million tons, and its No. 2 mine produces over
400,000 tons annually. The No. 2 mine has a history of 166
paid violations in the 24 months preceding the order issued in
this case.
Considering the six criteria for civil penalties in
llOCi) of the Act, I find that a civil penalty of $400 is
appropriate for the viol~tion found herein.
§

CONCLUSIONS OF LAW

1.

The Commission has jurisdiction in these proceedings.

2. Respondent violated 30 C.F.R.· § 75.1704 as charged in
Order No. 2697882.

/

ORDER
WHEREFORE IT IS ORDERED that:
1. Order No. 2697882 is AFFIRMED, and the contest
proceeding in PENN 86-297-R is DISMISSED.
2. Respondent shall pay the above civil penalty of $400
within 30 days of this Decision.

uJ~=1-~v~
William Fauver
Administrative Law Judge
Distribution:
Covette Rooney, Esq., Of~ice of the Solicitor, U.S. Department
of Labor, 3535 Market Street, Room 14480 Gateway Building,
Philadelphia, PA 19104 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, 58th Floor, 6700
Grant Street, Pittsburgh, PA 15219 (Certified Mail)
kg

1193

1194
*U. S. GOVERNMENT ERINTING OFFICE 1987: 181-224/63006