JULY

1987

Commission Decisions
07-01-87

Local Union 1889, Dist. 17, UMWA v.
Westmoreland Coal Company

WEVA 81-256-C

Page 1195

VA

86-45-D

Page 1199

WEST 86-8-M
SE
86-29-R
PENN 86-273
WEVA 86-391
WEVA 87-222-R
PENN 86-291
PENN 86-228-C
LAKE 87-48
LAKE 87-35
VA
87-1-DM
PENN 87-92
LAKE 87-67-D

1205
Page 1219
Page 1220
Page 1221
Page 1223
Page 1236
1236
Page 1241
Page 1244
Page 1246
Page 1247
Page 1250

87-85-DM

Page 1251

PENN 87-111
WEST 86-116-M
KENT 86-149-D
PENN 85-253-R
VA
83-55-C

Page 1255
Page 1257
Page 1262
1270
Page 1276

LAKE 87-33-D
CENT 87-2-M
CENT 86-119
PENN 86-17-R

Page 1285
Page 1286
Page 1291
Page 1299

Administrative Law Judge Decisions
07-06-87
07-07-87
07-08:...37
07-08-87
07-09-87
07-09-87
07-10-87
07-10-87
07-14-87
07-15-87
07-15-87
07-16-87
07-17-87
07-17-87
07-17-87
07-20-87
07-22-87
07-23-87
07-23-87
07-24-87
07-28-87
07-29-87
07-31-87

Secretary of Labor for Alvin Casey,v.
Brent Coal Corporation
County of Ouray, Colorado
Jim Walter Resources, Inc.
Perry Drilling Company
Dover Elevator Company
Consolidation Coal Company
Energy Supply Inc./Donray Industries
UMWA/Jeffrey Stennett v. Energy Supply
Nacco Mining Company
White County Coal Corporation
Ernest R. Lafon, Jr. v. Virginia Lime Co.
Helvetia Coal Company
Sec.Labor for Mark R. Kraus v. Green
Ridge Mining, Inc.
Sec. Labor for Brian S. Ousley v.
Metric Constructors, Inc.
Mathies Coal Company
Kaiser Sand & Gravel Company
Arnold Sharp v.
Elk Creek Coal Co.
Rushton Mining Company
Local 2274, Dist. 28, UMWA v. Clinchfield
Coal Company
William C. Fankhauser v. GEX Hardy, Inc.
Phelps Dodge Corporation
Texas Utilities Generating Co.
Greenwich Collieries

SE

JULY 1987
Review was granted in the following cases during the month of July:
Local Union 1889,·Dist. 17, UMWA v. Westmoreland Coal Company, Docket No.
WEVA 81-256-C. (Interlocutory Review of May 20, 1987 Order by Judge Melick.)
Jim Walter Resources, Inc. v. Secretary of Labor, MSHA, Docket Nos. SE 86-105-R,
SE 87-8. (Judge Weisberger, May 29, 1987)
Youghiogheny & Ohio Coal Company v. Secretary of Labor, MSHA, Docket Nos.
LAKE 86-121-R, LAKE 87-9. (Judge Melick, June 5, 1987)
Mettiki Coal Corporation v. Secretary of Labor, MSHA, Docket Nos. YORK 87-2-R,
YORK 87-3-R, YORK 87-5. (Judge Melick, June 13, 1987)
Helen Mining Company v. Secretary of Labor, MSHA, Docket Nos. PENN 86-94-R,
PENN 86-181. (Judge Weisberger, June 12, 1987)
Review was denied in the following cases during the month of July:
Joel T. Arnoldi v. Asarco, Inc., Docket No. WEST 85-161-DM.
June 3, 1987)

(Judge Morris,

Secretary of Labor, MSHA v. Rushton Mining Company, Docket No. PENN 87-74.
(Judge Broderick, June 11, 1987)

COMMISSION DECISIONS

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

July 1, 1987
LOCAL UNION 1889, DISTRICT 17,
UNITED MINE WORKERS OF
AMERICA (UMWA)

v.

Docket No. WEVA 81-256-C

WESTMORELAND COAL COMPANY
and
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
BEFORE:

Backley, Doyle, Lastowka and Nelson, Commissioners
ORDER

BY THE COMMISSION:
This compensation proceeding under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), was commenced in
1981 and, on cross-petitions for interlocutory review, is before the
Commission for the third time. The petitions are granted and, because
time is of the essence at this stage of this protracted litigation,
briefing is suspended and we dispose of the petitions by summary order.
On the following bases, this matter is remanded to presiding Judge Gary
Melick.
In September 1986, the Commission remanded this case for further
proceedings to determine whether a nexus sufficient to support an award
of compensation existed between certain violations of mandatory standards
and the mine explosion and imminent danger order involved in this case.
8 FMSHRC 1317, 1329-30 (September 1986). We additionally stated: "If
such a relationship is determined, the judge shall take appropriate
action to identify the affected miners and the amount of compensation
due to each." 8 FMSHRC at 1330. On the remand proceedings before Judge
Melick, the parties became engaged in disputes as to the scope_and the
terms and conditions of discovery. Following certain rulings by the
judge in a May 20, 1987 order, the parties filed these cross-petitions
for interlocutory review seeking review of that order. Upon receipt of
the petitions, the Commission stayed further proceedings before the
judge.

1195

to

With respect
the petition filed by respondent Westmoreland Coal
Company ("Westmoreland"), we hold that the judge erred in treating the
individual miner claimants as mere witnesses to this proceeding entitled
to payment of witness fees for participation in the depositions sought
by Westmoreland. In our practice in compensation proceedings, the
individual miner claimants are deemed to be parties (see generally
UMWA Dist. No. 31 v. Clinchfield Coal Co., 1 IBMA 31, 47 (1971)), even
if their miner's representative, as here, is actually prosecuting the
compensation complaint as a party on their behalf. (30 U.S.C. § 821;
29 C.F.R. § 2700.4(a).) The gen~ral rule in federal practice is that
parties ordinarily are not entitled to the payment of witness fees, and
we reverse the judge's authorization of such fees in the circumstances
of this proceeding. See,~·· Barth v. Bayou Candy Co., Inc., 379
F. Supp. 1201, 1205 (E.D. La. 1974).
Concerning the UMWA's petition, for the reasons stated above, we
reject the UMWA's contention that the individual miner parties are
entitled to special witness protection under Commission Procedural Rule
59, 29 G.F.R. § 2700.59 (protection from disclosure of the names of
miner witnesses and informants). Further, we affirm the judge's ruling
that Westmoreland may depose the miners on the subject of the circumstances of their idlement. This subject is clearly relevant in discovery
by either party and is within the scope of our remand order. Cf. Loe.
U. No. 781, Dist. 17, UMWA v •. Eastern Assoc. Coal Corp., 3 FMSHRC 1175,
1176-79 (May 1981). However, we hold that the question of whether any
of the miners received state unemployment compensation is irrelevant to
this proceeding and may not be pursued in discovery. Cf.,~., Baich v.
FMSHRC, 704 F.2d 275, 286-87 (6th Cir.), vacated in other part on other.
grounds, 719 F.2d 194, 196 (6th Cir. 1983).
Finally, all participants in this six-year litigation must be aware
of the need to move with dispatch to resolve the issues remaining so
that this proceeding may be concluded at the earliest possible date.

1196

On the foregoing grounds, our previously directed stay is dissolved
and this matter is remanded to the judge for expeditious proceedings
consistent with this order. '!:._/

Richard V. Backley, Commissioner

James A. Lastowka, C mmissioner

·y /;
S1 .
~.u4....-~ I u.£¥-v'-i,/

L. Clair Nelson, Commissioner

*

Chairman Ford did not participate in the consideration or disposition of this matter.

1197

Distribution
Earl R. Pfeffer, Esq.
UMWA
900 15th St., NW
Washington, D.C. 20005
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
John T. Scott, III, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1198

ADMINISTRATIVE LAW JUDGE DECISIONS

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

JUL 6 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF ALVIN CASEY,
Complainant

DISCRIMINATION PROCEEDING
Docket No. VA 86-45-D

v.
BRENT COAL CORPORATION,
Respondent
DECISION
Appearances:

Before:

Mary K. Spencer, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Complainant~ Robert J. Breimann, Esq., and
Joseph W. Bowman, Esq., Street, Street, Street,
Scott and Bowman, Grundy, Virginia, for Respondent.

Judge Broderick

STATEMENT OF THE CASE
Complainant Alvin Casey contends that he was laid off from
his job as mine foreman with Respondent on August 15, 1985,
because he refused to work under unsafe conditions. Pretrial
discovery was initiated by both Complainant and Respondent.
Pursuant to noticev the case was called for hearing on
March lOu 1987, in Bluefield, West Virginia. It was continued on
March 31, 1987~ in Bristol, Virginia. Respondent orally moved to
dismiss the complaint at the commencement of the hearing. The
motion was denied.
vin Caseyv -James Church, Minnie Mae Church,
Robert Nichols, Arnold Carico, and Dorsey Evans testified on
behalf of Complainant. Paul Horn, Gary Lester, Terry Lee Taylor,
Robert Dale, and Billy Horn testified on behalf of Respondent.
Both parties have filed post hearing briefs. I have considered
the entire record, and the contentions of the parties and make
the following decision.

1199

FINDINGS OF FACT
Complainant Alvin Casey worked for Respondent as a coal
miner for approximately two years. He worked for other mines
operated by Respondent's President, Billy Horn, for about
10 or 11 years of the approximately 13 years he worked in the
coal mining industry. He worked as a shot fireman, roof bolter
operator, cutting machine operator and mine foreman. He was
certified as a shot fireman, but was not certified as a mine
foreman. He has a fifth grade education, and a very limited
ability to read. During his last several months with Respondent,
Casey worked as a foreman on the second shift. The second shift
was supposed to be a maintenance shift, but coal was produced
about 80 percent of the time. Casey was paid $8.75 per hour,
and, because he acted as foreman, received pay for 9 hours
although he worked only eight.
Respondent was the owner and operator of the subject mine.
The mine was developed through three old abandoned mines.
Respondent was given permission by MSHA to go through the old
workings and develop them into an active mine. Seals were
constructed and ventilation provided. The mine was ventilated by
an exhaust fan, pulling intake air across the working face, and
down the return air course, exiting the mine at the fan.
In
August 1985, there were nine working headings, being mined on a
left to right cycle. The intake air and return air were
separated by permanent stoppings erected in crosscuts as the
mining cycle progressed. The coal was removed by belt.
The mine was 30 to 34 inches in height. It produced from
30,000 to 50,000 tons of coal annually. The maximum number of
employees was fourteeno
During the two year period prior to
August 14v 1985u forty seven violations were paid by Respondent,
eighteen of which were denominated significant and substantial.
On August 6, 1985, on the day shift, a scoop cut through in
the Number 3 heading to an old abandoned mi.ne. The cut through
occurred approximately 70 feet inby the last open crosscut. The
day shift foreman, Gary Lester, called Respondent 1 s President,
Billy Hornv who directed him to withdraw the miners from the area
to the intake side. Horn went into the mine with a flame safety
lamp and methane detector. He crawled down the Number 3 heading
and into the abandoned mine. He did not detect any methane or
oxygen deficiency at the mouth of the heading. After proceeding
30 to 40 feet into the abandoned mine, the flame on the flame
safety lamp diminished slightly, showing some oxygen deficiency.
He returned to the mouth of the heading. After checking the
ventilation, he instructed the men to stay on the intake air
side, and began assembling material to construct a seal. Casey
testified that when he arrived at the mine for the second shift,

1200

Horn told him that he was ill, because "he got a whiff of bad air
from where he cut into that old abandoned mines."
(Tr. I, 32.}
Horn denied making the statement and denied having become ill. I
accept Horn's testimony on this matter and reject Casey's. Casey
hung a flame safety lamp at the mouth of the Number 3 Entry, and
his crew worked in Entries 4 through 9. Casey testified that he
went up Entry 3 about 20 feet and his flame safety went out.
This testimony was not corroborated by James Church who was
present at the time.
A seal was constructed the next day (August 7} on the day
shift by Gary Lester. The seal was built of cement block and
mortar approximately 10 feet outby the cut through, which had
been filled with rock and debris from the mine before the seal
was commenced. The seal was airtight. After the seal was
completed, the day shift began to fill the entry outby the seal
with stone, rock and mine debris, to protect the seal, according
to Horn, from being struck by mine equipment. This work (called
"gobbing" the area) was not completed during the· day shift on
August 7. Horn testified that he told Casey of the seal and
instructed him to continue the gobbing outby the seal. Casey
denies that he was told of the seal or that he knew of it. He
testified that he could see through the heading into the old
abandoned mine for "a couple or three days after" the cut through.
(Tr. I, 41.) On this issue I accept the testimony of Horn and
Lester that a seal was constructed on August 7. I find Casey's
testimony not credible. I also find that Casey was told that the
seal had been built. James Church, who worked under Casey,
testified that he was told of the seal.
CTr. I, 96.)
Casey's
crew did some gobbing of the area outby the seal on August 7.
The gobbing was completed during the first shift on August 8, and
a mud plaster seal was constructed at the mouth of the Noo 3
headingo A flame safety lamp was maintained in the vicinity of
the No. 3 heading. The construction of the seal did not conform
to the approved sealing plan for the mine in that a test pipe was
not constructed to test the mine atmosphere behind the seal.
Further, because of the gobbed area outby the seal, it was not
possible to inspect the integrity of the seal daily as MSHA
regulations require.
On or about August 5, 1985, Casey approached Horn and asked
for a raise in pay. Casey said he had another job, and would
quit if he did not get a raise. Horn told him that the companyis
financial circumstances would not allow him to give Casey a raise.
Casey renewed his request on August 12, and was told that nothing
could be done at the time, but perhaps later on he could be given
a raise. Casey stated he had another job as soon as the
prospective employer obtained a continuous miner which was on
order. On August 14, at the conclusion of the day shift,
Gary Lester told Casey that a scoop was broken down and he would

1201

need to use the man trip to bring repair parts to the No. 2
heading where the scoop was located. Casey's crew entered the
mine and found that the cutting machine was between heading two
and three. Casey found that the cable in the supply box had been
shortened (apparently by Lester), and ordered his crew out of the
mine. The shortening of the cable by Lester had occurred
previously and upset Casey. I find as a fact that Casey did not
indicate that he was withdrawing the crew because he was
concerned about "bad air" in the mine, or that he was afraid to
proceed to the No. 2 heading, but rather because he was upset on
account of the cable. Horn was not at the mine that day. The
following day, August 15, Casey came to the mine early in his
street clothes. Horn asked him why he withdrew his crew, and
Casey replied that he could not work with Gary Lester anymore and
that he quit.
I find that Casey did not complain to Horn about
bad
r. He asked Horn for a lay off slip in order to draw
unemployment benefits until he was called to work on his new job.
Casey did not return to Respondent's mine after that date.
On about August 22, 1985, Respondent's pillaring plan was
approved by MSHA, and the miners began to remove pillars. In
about 3 or 4 weeks, the pillars were all removed, and the mine
was abandoned.
Casey received unemployment compensation after a hearing
before the state employment security agency. He began working
for H&H Coal Company about 9 weeks after leaving Respondent. He
worked with H&H about 8 days before quitting because he "couldn't
stand to work in the low coal."
(Tr. I, 50.) The coal seam at
H&H was about 24 inches high. He has not worked since leaving
H&H.
ISSUES

l. was claimant subjected to adverse action by Respondent
for activity protected under the Act?
2.

If he wasu to what remedies is he entitled?

CONCLUSIONS OF LAW
JURISDICTION
Respondent was subject to the Act in the operation of the
subject mine. Complainant Casey was a miner and protected by
Section 105(c) of the Act. Respondent is a small operator and
has an average history of prior violations.

1202

PASULA RULE
Under the Act, a miner can establish a prima facie case of
discrimination by showing that he engaged in protected activity
and that the adverse action complained of was motivated in any
part by that activity. Secretary/Fasula v. Consolidation Coal
Co., 2 FMSHRC 2786 (1980); rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.
1981); Secretary/Robinette v. United Castle Coal Co., 3 FMSHRC
803 (1981). The operator may rebut the prima facie case by
showing either that no protected activity took place, or that the
adverse action was not motivated in any part by the protected
activity. A miner has the right to refuse to work if he has a
good faith reasonable belief that the work is hazardous.
Pasula,
supra, Simpson v. Kenta Energy, Inc., 7 FMSHRC 1034 (1986). Such
refusal is activity protected under the Act.
PROTECTED.ACTIVITY
The cut through to the old mine created a potentially
hazardous condition on the return air side (headings 1, 2 and 3)
in the subject mine.
Claimant's refusal to work in headings 1,
2, and 3 on August 6 and 7, 1985, before the seal was
constructed, was therefore protected.
I have found as a fact
that Casey was informed that the seal was constructed. Although
the seal did not conform to MSHA requirements, or the provisions
of 30 C.F.R. § 75.303 (requiring a daily examination of seals), I
have found as a fact that Casey and his crew worked in the first
three headings between August 8 and August 14. Therefore, I
conclude that he did not refuse to work because of a good faith,
reasonable belief that the work was hazardous.
ADVERSE ACTION
I have found that Casey quit his employment and was not
discharged.
I also conclude that he was not constructively
discharged because of intolerably unsafe working conditions.
See
Simpson Vo Kenta, suprao The evidence shows that he quit because
he thought he deserved a raise, because of disputes with
Gary Lester, and because he beliaved that he had a better job
lined up. Therefore, I conclude that he was not subjected to
adverse action under the Act.
MOTIVATION-CREDIBILITY
The critical issue in this case is why Casey left the
Respondent's employ. Was it because he feared that his safety
and the safety of his crew were jeopardized by the threat of bad
air coming from the old works? Or was it because he was denied a
raise, and did not get along with his fellow-foreman Gary Lester?

1203

The resolution of this issue depends almost·entirely on the
credibility of Casey and of Horn.
I have found Casey's denial
that he knew of the seal not credible: Church who worked under
Casey was told of it and worked in the return headings after the
seal was const~ucted, as did others on Casey's crew. Casey's
testimony that he could see from the mouth of the heading into
the old mine (more than 70 feet away) for 2 or 3 days after the
cut through is inherently incredible. I have found the testimony
of Billy Horn, Respondent's President to be credible concerning
Casey's statements when he left his job and prior thereto. For
these reasons I find that Complainant Casey was not subjected to
adverse action by Respondent because of activity protected under
the Act. A violation of section 105(c) has not been established.
ORDER
Based on the above findings of fact and conclusions of law,
the complaint and this proceeding are DISMISSED.
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James A. Broderick
Administrative Law Judge

Distribution:
Mary K. Spencer, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Robert Jo Breimann Esq.
Street Streetv Streetv Scott & Bowmanu
PoO. Box 2100 1 Grundy~ VA 24614 (Certified Mail)
1

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1204

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

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

80204

-JUL 7 1987

CIVIL PENALTY PROCEEDING
Docket No. WEST 86-8-M
A.C. No. 05-04036-05501

v.

Docket No. WEST 86-9-M
A.C. No. 05-04036-05502

COUNTY OF OURAY, COLORADO,
Respondent

Docket Wo. WEST 86-66-M
A.C. No. 05-04036-05503
Ouray County Gravel Pit
DECISION

Appearances:

James H. Barkley, Esq., Office ·of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for the Petitioner;
Richard P. Tisdel, Esq., Tisdel, Mathis, Reed,
Hockersmith & Bennett, Ouray, Colorado,
for the Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, in these consolidated cases charges
respondent with violating safety regulations promulgated under
the Federal Mine Safety and Health Act, 30 u.s.c. § 801 et seq.,
(the Act).
A hearing on the merits took place on September 4, 1986f
in Grand Junctionu Coloradoo
Stipulation
At the hearing it was agreed that respondent, Ouray County,
a County and as such a political subdivision of the State of
Coloradoo Furtheru respondent operates the mine and it has 36
employees, including one at the site in question. Respondent
further admitted the violations and penalties with the exception
of Citation 2376690 in docket number WEST 86-9-M. The parties
further stipulated that the briefs in Jefferson County Road and
Bridge Department, 9 FMSHRC 56 {1987), could be entered as posttrial briefs in these cases.

1205

Summary of the Evidence
Collin R. Galloway, a duly authorized representative of
the Secretary of Labor, inspected the Ouray County gravel pit
on June 24, 1985 (Tr. 18, 19). As a result the inspector issued
Citation 2376690 for the alleged failure of respondent to notify
MSHA of the accident. l/ The accident, which caused a fatality,
occurred when a highwall fell on a front-end loader (Tr. 19,
Ex. Pl, P2).
Galloway's investigation disclosed that the fatality was
discovered at the quarry at 2:30 p.m. on June 24, 1985 (Tr. 21,
22).
MSHA's records indicate· that the agency was notified by
telephone at 0945 hours on June 25, 1985 (Tr. 20, 33). Agency
policy requires immediate notification. The primary purpose of
the regulation is to insure that no further lives are endangered
in any recovery operation. Further, the purpose of the regulation is to insure that the accident site is not substantially
altered (Tr. 22). It is MSHA's policy to direct recovery operations (Tr. 30, 31). In the inspector's opinion there was no
one present at the scene with the necessary expertise to conduct
the recovery operations (Tr. 3lv 32)
However, the inspector
admitted he was not knowledgeable as to the experience of those
present (Tr. 32, 33).
o

In this situation the recovery operation started at 3:15 p.m.,
when the victim was pronounced dead. During the recovery it was
necessary to withdraw personnel twice because of additional
sloughing of the highwall~ The victim was removed from under
the highwall after five and one-half hours (Tro 23u 24u 28, 34)o

l/ 30 C~FoR. § 50.10, the regulation allegedly violated, provides
as follows:
§

50ol0 Immediate Notification

If an accident occurs, an operator shall
immediately contact the MSHA District or Subdistrict Office having jurisdiction over its
mineo If an operator cannot contact the appropriate MSHA District or Subdistrict Office, it
shall immediately contact the MSHA Headquarters
Office in Washington, D.C., by telephone, toll
free, at (202) 783-5582.

1206

No MSHA personnel were present during the recovery operations and the inspector believed this factor involved a hazard
to the recovery team (Tr. 24, 34).
During the recovery operations the loader was adjacent to
the foot of the 45 to 50 foot highwall (Tr. 27, 28).
The angle
of repose of the highwall was 90 degrees (Tr. 28).
Patrick O'Donnell and Ronald Phelps testified for respondent.
Patrick O'Donnell, the Ouray County Administrator, is involved in all aspects of county government {Tr. 36). The County's
gravel pit is operated as part of the County's Road and Bridge
Department.
The United States Government through its agency, BLM, 2/
owns the land.
BLM has issued a Free Use Permit to Ouray County
extract gravel from the pit with county employees and equipment
(Tr. 37, 66, Ex. Rl)
The pit consists of 39.87 acres (Tr. 69).
None of the materials that are removed are sold, bartered or
traded (Tr. 38, 40, Ex. Rl). Ouray County does not engage in commerce with the products from the gravel pit. The material is
screened and used only for road construction in Ouray County,
Colorado (Tr. 39).

to

BLM inspects the pit and their inspectors will point out
any problems they observe (Tr. 40).
The witness was present at the site at approximately 3:15 p.m.
He attended to the removal of the deceased who had been buried by
a 45-foot vertical highwall. O'Donnell also checked the top of
the highwall for fractures (Tr. 41, 42, 62, 63)0 After his inspection ovDonnell directed that the recovery operations cease
(Tro 43)o
Thereaftery they attempted to remove the equipment by
pulling i t out with a cable. They were unsuccessful with this
effort (Tr. 43).
An attempt at removal by using a backhoe was also unsuccessful (Tro 43u 44)o
The witness and the County Commissioner finally
were able to remove the deceased (Tr. 44). Subsequently, after
considerable gravel had been removed, they were able to start the
trapped loader and remove it (Tr. 44).

2/

Bureau of Land Management

1207

Dµring the rescue operations it had not occurred to O'Donnell
to notify MSHA (Tr. 44, 45}. Mr. O'Donnell had previously met
with MSHA's representative Phelps but he had never been told of
the necessity of contacting MSHA in the event of an accident (Tr.
45).
O'Donnell was not aware of the 24-hour number in Washington,
D.C. (Tr. 45).
O'Donnell notified MSHA and BLM the following
morning (Tr. 46).
The recovery operations terminated about 10:30 p.m.

(Tr. 46).

Before the fatality, on May 20, 1985, MSHA Inspector Ron
Phelps conducted a CAV inspection at the gravel pit (Tr. 46,
47). This was the first MSHA inspection in the 20 years that
the pit has been in operation (Tr. 47, 49). The purpose of
the CAV inspection was to determine if there were any problems
at the pit. No penalty assessments are issued as a result of
a CAV inspection. The pit is operated on a seasonal basis and
it was not in operation at the time of the CAV inspection (Tr.
48). As a result of the inspection, non-penalty CAV notices
were issued {Tr. 49, Ex. R2, R3).
The notices dealt mainly with
deficiencies in screening equipment and shielding {Tr. 51).
As a result of the fatality, MSHA issued six citations to
Ouray Countyo
None of the citations in the instant cases deal with the
matters that were discussed in the prior CAV report (Tr. 52).
The County did everything required of them by the CAV notices.
Further, if the County had been advised of any other deficiencies
i t would have abated any violative conditions (Tr. 53).
Citation 2355137 deals with operations under a dangerous
highwall"
This highwall was not in existence on May 20 (Tro 53)o
An illegal highwall is one that exceeds the height of the loader
bucketQ or about 14 feet (Tro 54u 62).
There was such a highwall
in existence on May 20 but the County was not advised of any
such deficiency (Tro 54u 79, 80)o
Citation 2355138 deals with failure to establish standards
for safe control of a pit highwallc The situation in regard
to this regulation was the same on June 25 as it was on May 20
(Tr. 54)o
Citation 2355139 deals with the failure to provide a suitable
communication system.
There was no such system in existence on
May 20 (Tro 56)o
Citation 2376689 deals with an employee operating alone in
the workplace.
On May 20 this was the customary practice at
the site (Tr. 56).

1208

After receiving the citations the County submitted a new
mining plan to BLM (Tr. 57).
With the exception of Citation 2376690 (failure to notify
MSHA), all of the conditions for which the County was cited after
the fatality, existed on May 20, 1985 {Tr. 80).
O'Donnell had heard that a BLM official had told Ouray
County that the highwall had to be sloped on an angle of one
to three. But that was for reclamation (Tr. 63-65).
The witness believed the people involved had sufficient expertise to conduct recovery operations but in failing to notify
it, MSHA was denied the opportunity to make a similar judgment
(Tr. 65) •
Ronald Phelps, an MSHA inspector with 20 years of mining
experience, conducted the CAV inspection at the county pit (Tr.
82, 83).
At the time of the inspection he inspected the highwall
where the fatality subsequently occurred (Tr. 84). When the
regulation uses the term highwall it does not distinguish between a highwall and a pit wall or pit face (Tr. 85). The highwall at the time of the CAV inspection was sloped to a safe angle
of repose of one-and-one-half to one. The highwall did not constitute a hazard at that time (Tr. 86).
During his first visit the inspector discussed the County's
mining methods with Mr. O'Donnell. At that time the inspector
advised him that the pit must meet minimum sloping requirements
{Tro 87v 89)o Mro OiDonnell indicated they followed a safe angle
of repose of approximately two to one (Tr. 88). During their
conversation the inspector also indicated that they should be
cautious about mining the toe of the highwall (Tr. 88). During
the CAV inspection the highwall was discussed with Pat O'Donnell
and Ken Williamsu a County Commissioner (Tr. 89)
Areas of the
pit with vertical highwalls were discussed (Tr. 89u 90)
At the
base of the highw.all 9 there was considerable slough that would
prevent a person from being exposed to the hazardous conditions
(Tr. 9 O) •
o

¢

At the time of the CAV inspection the inspector did not think
there was a hazard because the vertical wall area was blocked off
from employees (Tr. 91).
At the time of the CAV inspection the inspector was advised
that the County was not mining the area at the vertical highwall.

1209

In additon, the area under the vertical highwall was blocked
off so employees could not go into the area (Tr. 91).
In areas
where they planned to mine there was a safe angle of repose
{Tr. 91) •
Inspector Phelps' field notes made at the time indicated
the highwall sloping was discussed [with Pat O'Donnell and Ken
Williams] (Tr. 94; Ex. PS).
The witness visited the site approximately 30 days after
the fatality.
Exhibits Pl and P2 depict the highwall. No condition as indicated in the photographs existed at the time of
the CAV inspection.
If he had observed the loader operating
under the highwall he would have immediately issued a withdrawal order. He would also have caused the highwall to be
sloped at a safe angle of repose and benches installed (Tr. 95,
96) •

Phelps prepared the CAV notices. Their purpose was to
disclose hazardous conditions and give the operator a time to
correct them (Tr. 96). Notices are only written on conditions
as they exist at the time of an inspection. First-aid training
and first-aid supplies are mentioned in R3 but not R2 (Tr. 98;
Ex. R2, R3). These were not put in the CAV notices because the
crew was not on site to see if anyone had a first-aid card;
further, the inspector could not determine if first-aid supplies
were kept on the pickup truck. The pickup truck was not on
the site (Tr. 98).
The witness inquired about the method of operations, the
equipment used and the number of employees who normally worked
at the p
He also learned they had a radio on the pickup
Tr" 98 99)o The inspector spent about two hours going over
various subparts of 30 CoFoRo with Mro 0°Donnell (Tro 99)o The
communication system working alone would not have helped Martinez
since he was working alone.
The witness agrees with OuDonnell 0 s testimony that a highwall
a vertical surface in excess of 14 feet would be unsafeo
When the inspector visited the site he saw vertical surfaces
in excess of 14 feet {Tro lOO)o These areas had apparently been
mined some time in the past (Tro lOl)o
In rebuttal, witness 0 1 Donnell testified he did not remember
any discussions with Phelps about the highwallo
0 1 Donnell acted on the CAV notices he received from MSHA.
He would have taken action on the highwall if he had received
such a notice.

1210

Discussion
Respondent generally asserts that the issues in the instant
cases are identical to the issues involved in Jefferson County
Road and Bridge Department, 9 FMSHRC 56 (1987) •
The identity urged by respondent is limited to certain
threshold issues of jurisdiction and defective filing procedures,
hereinafter discussed.
Respondent's additional arguments address
estoppel and the substance of the violation of Citation 2376690
(Tr. 8-14, 113-115).
The County argues that the Secretary lacks authority to
enforce the federal Mine Act against respondent for a number of
reasons.
Initially, i t is asserted that Congress in passing the Act
did not intend to regulate states or political subdivisions thereof.
This is so because neither the statutory definition of
"operator," or "person" speak to the regulation of state or local
governments. Cognizant of federalism concerns, Congress explicitly brings state and local governments within the purview
of the statutory scheme if i t intends to regulate their activity.
For example, Congress so acted in amending the Fair Labor Standards
Act, 29 u.s.c. § 203(d), (x).
See also Garcia v. San Antonio
Metropolitan Transit Authority,
U.S.
, 105 S.Ct. 1005
(1985).
This issue is a matter of statutory construction and legislative intent.
The federal Mine Act def
an operator as "any owner,
lesseeu or other person who operates, controls, or supervises a
coal or other mineooo" (emphasis added) 30 U.S.C. § 8020
In
the preamble of the Act Congress explicitly stated that i t recognized "the existence of unsafe and unhealthful conditions and
practices in the Nation's o o o mines (emphasis added).
Accordinglyy
the Act was promulgated to meet the "urgent need to provide more
effective means and measures for improving the working conditions
and practices in· the Nation's o • • mines in order to prevent death
11
and serious bodily harm
(emphasis added).
It is apparent here
that a mine operated by a county is one of the Nation 1 s mines.
The Act was designed and Congress declared that "the first priority
of all in the coal or other mining industry must be the health and
safety of its most precious resource - the miner", 30 u.s.c. § 801.
000

A reading of the legislative history establishes the clear
intent of Congress. s. Rep. No. 95-181, 95th Cong., shows the congressional views:

1211

The Conunittee believes that it is essential
that there be a conunon regulatory program
for all operators and equal protection under
the law for all miners. Thus, a principal
feature of the bill is the establishment of
a single mine safety and health law applicable
to the entire mining industry.
Further, the Committee notes that there may
be a need to resolve jurisdictional conflicts,
but it is the Committee's intention that what
is considered to be a mine and to be regulated
under this Act be given the broadest possible
interpretation, and it is the intent of this
Conunittee that doubts be resolved in favor of
inclusion of a facility within the coverage
of the Act.
(Emphasis added)
S.Rep. No. 95-181, 95th Cong., 1st 'Sess.
(1977), reprinted in 95th Cong., 2nd Sess.
r:eglslative History of the Federal Mine Safety
and Health Act of 1977, 601, 602.
Sand, gravel and crushed stone operations, whether privately
operated or operated by a local government unit have been covered
by the federal mine safety law since 1966 when the Federal Metal
and Nonmetallic Mine Safety Act (Metal Act) was enacted. Historically there has never been any serious question that sand
and gravel are minerals and that their extraction is mining,
Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589 (3d Cir.,
1979); Marshall v. Nolichuckey Sand Co. Inc., 606 F~2d 693 (6th
C •Q 1979}.
Sand and gravel operations are classical mining
operations. The methods and equipment used in sand and gravel
mining are similarv if not identical to, the methods and equipment
in the mining of many other minerals. The hazards faced by
workers engaged in extracting sand, gravel, and crushed stone are
similar and in many cases they are identical to the hazards faced
in other mining operations.
The
Act was repealed in 1977 and all mining operations
were placed under the present statute. HoweverF the safety and
standards applicable to sand, gravel, and crushed stone
operations
sued under the Metal Act continue in effect under
the 1977 Act.
Because sand, gravel, and crushed stone operations are
"mines", as defined in section 3(h) (1) of the Act, they are subject to the provisions of the Act and the regulations issued thereunder.
The fact that a pit is operated by a governmental unit

J-212

rather than a private party is immaterial. When a state or
local government engages in an activity subject to Congressional
regulation, such as in operating a railway or a mine, the state
or local government is subject to regulation in the same manner
as a private citizen or corporation.
Parden v. Terminal Ry. of
Ala. State Docks Dept., 377 U.S. 184, 84 S.Ct. 1207 (1964).
Respondent further argues that Congress explicitly brings
state and local governments within the purview of the statutory
scheme if it intends to regulate their activity citing such
legislative action in amending the Fair Labor Standards Act,
29 U.S.C. § 203(d) (1) and relying on Garcia Ve San Antonio Metropolitan Transit Authority, supra.
I agree that Congress certainly may legislate by particularly naming those entities that are subject to the legislation.
In fact, Congress did so in extending minimum-wage coverage over
a period of time while gradually expanding the coverage.

When FLSA was enacted in 1938, its wage and overtime provisions did not apply to local mass-transit employees, the subject of the Garcia case, §§ 3{d), 13(a) (9), 52 Stat. 1060, 1067.
In 1961 Congress extended minimum-wage coverage to employees of
any mass-transit carrier whose annual gross revenue was not less
than one million.
Fair Labor Standards Amendments of 1961, §§ 2
(c), 9, 75 Stat. 65, 71.
In 1966 Congress extended FLSA coverage
to state and local government employees for the first time.
Fair Labor Standards Amendments of 1966, §§ 102(a) and (b),
•80 Stat. 831.
In 1974 Congress provided for the progressive
repeal of the surviving overtime exemption for mass transit employeesa Fair Labor Standards Amendments of 1974, § 2l(b),
88 Stato 680 At the same time Congress simultaneously brought
the States and their subdivisions further within the ambit of
the FLSA
extending FLSA coverage to virtually all state and
local government employeesff §§ 6(a) (1) and (6) P 88 Stat. 58u 60u
29 U.S.C. §§ 203(d) and (x).
As noted aboveu Congress gradually expanded FLSA coverage and
finally
ically included ·states and local governments. Congress could have specifically named the states and counties in the
Mine Act but
is not obliged to legislate in that fashion.
In
addition,
gradual extension of the FLSA coverage indicates a
piece-meal approach to coverage under that Act. A similar legislative approach did not occur in the enactment of the federal Mine
Act.
The broad statutory definitions, supported by the legislative
history, establish that Congress intended to include all mines and
miners within the ambit of the federal Mine Act.

1213

Respondent further contends that its gravel pits are not
subject to the Act's coverage because its products neither enter
commerce nor affect it.
The evidence is uncontroverted that the gravel from the
mines is not sold.
It is, in fact, used exclusively to surface
the county roads.
In addition, Ouray County's roads do not
extend beyond the boundaries of the State of Colorado.
The Act encompasses within its coverage the following:
Each coal or other mine, the products of
which enter commerce, or the operations
or products of which affect commerce, and
each operator of such mine, and every miner
shall be subject to the provisions of this
chapter.
30 U.S.C.A. § 803.
Further, commerce is defined as follows:
(b) "commerce" means trade, traffic,
commerce, transportation, or communication among the several States, or between
a place in a State and any place outside
thereof, or within the District of ·Columbia or a possession of the United States,
or between points in the same State but
through a point outside thereof.
30 u.s.c.A. § so2(b).
The issue to be addressed is whether the County's gravel
operations "affect commerce. 11 As a threshold matter the term
"affecting commerce" has been given a broad judicial interpretationo
Garcia Vo San Antonio Metropolitan Transit Authority,
supra1 Marshall Vo Kraynack, 604 F92d 231 (3d Cir. 1979); Godwin
Vo OSHRC, 540 F.2d 1013 (1976) (9th Cir); United States v. Dye
Construction Co., 510 F.2d 78 (1975) (10th Cir.); Brennan v.
OSHRCu 492 F.2d 1027 (2d Cir. 1974); Wickard Vo Filburn, 317
U.So 111, 63 SoCL 82.
In this case the testimony of witness O'Donnell is uncontroverted that the gravel is used solely on county roads. The
extracted materials are not sold, bartered or traded. However,
i t is apparent that if the County relinquished its lease it
would be required to purchase the material from a commercial
source. The lease and removal of the gravel accordingly "affects
commerce" as that term is contemplated by the above-cited case
law.

1214

Morton v. Bloom, 373 F. Supp. 797 {D.C. Pa. 1973), relied
on by respondent, presents a unique factual situation of a mine
operated by one mano
In that circumstance, the Court ruled that
the local nature of the mine did not affect commerce. The case
has not been followed as precedent for later decisions.
In short,
it appears to have a very_ narrow application not applicable here.
The Commission has yet to consider the jurisdictional issues
raised here but decisions by judges of the Commission have held
that a governmental gravel operation is subject to the federal
Act. New York State Dept. of Transportation, 2 FMSHRC 1749 {1980),
Laurenson, J.; Island County Highway Department, 2 FMSHRC 3227
(1980), Morris, J.; Salt Lake County Road Dept., 2 FMSHRC 3409
(1980), Vail, J.
Respondent further contends that it was not properly sued.
Specifically it relies on Section 30-11-105, C.R.S. 3/ Colorado
appellate.courts have construed this statute and held that an
action brought against a county under a designation that does not
comply with the statute is a nullity and no valid judgment can be
entered, Calahan v. county of Jefferson, 163 Colo. 212, 429 P.2d
301 {1967) •
I

reject respondent 1 s argument.

This is not a proceedings under the Colorado statutes but
it is an adjudicatory proceedings provided for in 30 u.s.c. §
113{a) and the applicable Rules of Procedures, 29 C.F.R. § 2700
et seq. .To like effect on this issue see the case decided by
the Interior Board of Mine Operations in Harlan No. 4 Coal Company,
4 IBMA 241 {1975}.
An additional issue centers on whether the Secretary can be
estopped in the factual scenario involved here. Respondent asserts
estoppel arises because MSHA conducted a CAV inspection before the
Martinez fatality occurred. Briefly stated, the County complied

lf

The c

statute provides~
30-11-1050

Ti

of suits by or against county.

In all suits or proceedings by or against
a county, the name in which the county shall
sue or be sued shall be, "The board of county
commissioners of the county of •••• ; but this
provision shall not prevent county officers,
when authorized by law, from suing in their
name of office for the benfit of the county.
1215

and corrected all of the deficiencies raised by the CAV inspection. Therefore, if the CAV inspector· had mentioned the
defective highwall the County would have corrected the defect
and thereby avoided the subsequent fatality.
At the outset I agree that equitable estoppel is a rule of
justice which, in its proper field, prevails over all other rules.
City of Chetopa v. Board of County Com'rs, 156 Kan 290, 133 P.2d
174, 177 {1943). Generally four elements must be present to
establish the defense of estoppel.
These are (1) the party to be
estopped must know the facts; (2) he must intend that his conduct
shall be acted on or must so act that the party asserting the
estoppel has a right to believe it is so intended; {3) the latter
must be ignorant of the true facts; and (4) he must rely on the
former's conduct to his injury. United States v. Georgia Pacific
Company, 421 F.2d 92, 96 {1970), (9th Cir.}.
In this case i t is clear that the CAV inspector did not learn
that mining was ever taking place under the highwall. The authority for a CAV inspection arises from an MSHA memorandum. The thrust
of the memorandum mandates such inspections may only be made when
the mine is not operating.
I credit the inspector's testimony and expertise in this
respect.
If he had observed a miner working under the highwall
he would have issued an immediate withdrawal order. Further, the
inspector's notes reflect that he discussed the sloping of the
highwall with the County officials at the CAV inspection. For
these reasons i t is clear the party to be estopped had not been
apprised of the operative facts.
In sum, he had not been advised
that the County was mining at the highwall (Ex. PS).'

A factual setting might well arise that would invoke the
doctrine of equitable estoppelo
Howeveru the doctrine should
only be applied in limited circumstances, otherwise, i t would deprive miners of the protection of the Mine Safety Act because of
a public official's erroneous act.
Maxwei1 Company v. NLRB,
414 Fo2d 477 (1969) 0 Udall Vo Oelschlaeger, 389 F.2d 974 (196B)o
For a general discussion of the doctrine of collateral estoppel
also see the Commission decision of King Knob Coal Company, Inc.,
3 FMSHRC 1417 (198l)o
Respondentas final argument addresses the substance of the
single contested citation for the violation of § 50.10.
The uncontroverted evidence establishes that Mr. Martinez
was killed at the quarry and his body discovered at 2:30 p.m. on
June 24, 19850 MSHA was not notified until 0945 hours the following

1216

morning.
The facts are that the County did not "immediately"
contact MSHA.
Accordingly, the citation should be affirmed.
Based on the record and the stipulation of the parties I
conclude that the Commission has jurisdiction to decide this
case.
Further, all citations and penalties herein should be
affirmed.
Based on the stipulation, the facts and the foregoing
conclusions of law I enter the following:
ORDER
The following citations and proposed penalties are affirmed:
WEST 86-8-M
Citation

Penalty

2376545
2376546
2376547
2376548

$20
20
20
20
WEST 86-9-M

Citation

Penalty

2355137
2355138
2355139
2376688
2376689
2376690

$200
500
50
200
100
50
WEST 86-66-M

Citation

Penalty

2633933
2633934

$54
20

Law Judge

1217

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)
Richard P. Tisdel, Esq., Tisdel, Mathis, Reed, Hockersmith &
Bennett, P.O. Box 646, Ouray, CO 81427
(Certified Mail)

/ot

1218

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

July 8, 1987

CONTEST PROCEEDING

JIM WALTER RESOURCES, INC.,
Contestant
v•
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

.,

Docket No. SE 86-29-R
Order No. 2605648; 12/2/85
No. 3 Mine

ORDER OF DISMISSAL
Before:

Judge Merlin

In light of the Commission's decision in Jim Walter
Resources, Inc. v. Secretary of Labor, 9 FMSHRC 903 (1987), the
Solicitor advises MSHA is vacating Order No. 2605648 which is the
subject of the above-captioned case. In addition, the operator
states that it withdraws its request for hearing.
Accordingly, this case is DISMISSED.

------~-P~in
Chief Administrative Law Judge
Distribution:
R. Stanley Morrow, Esq., Jim Walter Resources 9 Inc., P. 0. Box
C-79" Birmingham~ Al 35283 (Certified Mail)
Harold D. Rice, Esq., Jim Walter Resources 9 Inc., P. 0. Box C-79,
Birmingham, AL 35283 (Certified Mail)
H. Gerald Reynolds, Esq., Jim Walter Corporation, 1500 North Dale
Mabry Highway, Tampa. FL 33607 (Certified Mail)
George D. Palmer, Esq., Office of the Solicitor 9 U. S. Department
of Labor, 2015 Second Avenue North, Suite 201, Birmingham 9 AL
35203 (Certified Mail)
Mr. Jim Casner, President, UMWA, Local 2245, District 20, 83
Manor Estates 9 Tuscaloosa 9 AL 35405 (Certified Mail)
Mr. Lawrence Beeman. Director, Office of Assessments, U. s.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)

I gl

1219

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

July 8, 1987

CIVI·L PENALTY PROCEEDING

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

Docket No. PENN 86-273
A. C. No. 36-06123-03502 BPO
Smith Mine

PERRY DRILLING COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Merlin

The Commission has been informed by the operator, and the
Secretary confirms, that the penalty assessed in this case has
been paid. Accordingly, this case is DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Therese I, Salus, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street~
Philadelphia. PA 19104 (Certified Mail)
Ann Rosenthal~ Esq.~ Office of the Solicitor~ U. S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mai 1 )
Mr, Richard C, Perry~ Perry Drilling Company. Box 26, Frostburg,
PA 15740 (Certified Mail)

I gl

1220

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

JUL 9 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 86-391
A.C. No. 46-06448-03501 GF7

v.
Rock Lick Preparation Plant
DOVER ELEVATOR COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

,Judge Koutras
Statement of the Case

This proceeding concerns a civil penalty proposal filed
by the petitioner against the respondent pursuant to section
llO(a) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 820(a), seeking a civil penalty assessment of $58
for an alleged violation of mandatory safety standard 30 C.F.R.
§ 77.400(a), as stated in a section 104(a) Citation No. 2584200,
issued to the respondent on April 21, 1986. Petitioner has
filed a motion pursuant to Conunission Rule 30, 29 C.F.R.
§ 2700.30v seeking approval of a proposed settlement of the
case.
The respondent
agreed to pay the full amount of the
proposed civil penalty assessment.
scussion
The proposed settlement is for 100 percent of the initial
proposed civil penalty assessment for the violation in question.
In support of the proposed settlement disposition of this case,
the petitioner has submitted information pertaining to the six
statutory civil penalty er
ia 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 violation in question.

1221

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 and in the
public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30,
the motion IS GRANTED, and the settlement IS APPROVED.
ORDER
Respondent IS ORDERED to pay a civil penalty in the amount
of $58 in satisfaction of the violation 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.

~K!~
Administrative ~aw Judge

Distribution:
Carol B. Feinberg, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA 22203
(Certified Mail)
Thomas D. Miller, District Manager, Dover Elevator Company,
1411 Virginia Avenue, S.E., Charleston, WV 25304 (Certified Mail)
John Hoblitzell, Esq., Kay, Casto & Chaney, P.O. Box 2031,
Charleston, WV 25327 (Certified Mail)
L. W. Miller, Regional Safety Coordinator; c/o Dover Elevator,
P.O. Box 145494, Cincinnati, OH 45250-5494 (Certified Mail)
/fb

1222

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

JUL 9 1987
CONSOLIDATION COAL COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. WEVA 87-222-R
Citation No. 2699139; 6/5/87

v.
Arkwright No. 1 Mine
Docket No. WEVA 87-223-R
Citation No. 2708499; 6/5/87

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

Humphrey No. 7 Mine
Docket No. WEVA 87-224-R
Citation No. 2902641; 6/5/87
Osage No. 3 Mine
Docket No. WEVA 87-225-R
Citation No. 2707824; 6/5/87
Pursglove No. 15 Mine
Docket No. WEVA 87-226-R
Citation No. 2902614; 6/5/87
Blacksville No. 1 Mine
Docket No. WEVA 87-227-R
Citation No. 2902888; 6/5/87
Blacksville No. 2 Mine
Docket No. WEVA 87-228-R
Citation No. 2699155; 6/5/87
Loveridge No. 22 Mine
Docket No. WEVA 87-229-R
Citation No. 2705133; 6/5/87
Robinson Run No. 95 Mine

1223

DECISION
Appearances:

Michael R. Peelish, Esq., Consolidation Coal Co.,
Pittsburgh, Pennsylvania, for Contestant;
James H. Swain, Esq., Office of the Solicitor,
U.S. Department of Labpr, Philadelphia, Pennsylvania, for Respondent.

Before:

Judge Maurer

These cases are before me upon a notice of contest and
motion to expedite filed by the Consolidation Coal Company
(Consol) under section lOS(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act," and
Commission Rule 52, 29 C.F.R. § 2700:S2~hallenging the validity of eight§ 104(a) citations. One citation, as listed
above, was issued to each of the eight Consol mines herein involved. A hearing was held in Morgantown, West Virginia, on
June 16, 1987.
The issue in this case is whether a violation of the
mandatory standard at 30 C.F.R. § 75.1101-23(a) existed as
alleged in the virtually identical eight citations. The model
citation reads as follows:
The program being used for instruction of all miners
in the location and use of fire fighting equipment,
location of escapeways, exits, and routes of travel
to the surf ace and proper evacuation procedures to
be followed in the event of an emergency has not been
approved by the District Manager.
The cited standard at 30 C.F.R.
as follows:

§

75.1101-23(a) provides

Each operator of an underground coal mine shall
adopt a program for the instruction of all miners
in the location and use of fire fighting equipment,
location of escapeways, exits, and routes of travel
to the surface, and proper evacuation procedures to
be followed in the event of an emergency.
Such
program shall be submitted for approval to the
District Manager of the Coal Mine Health and Safety
Di
in which the mine is located no later than
June 30, 1974,
(1) The approved program of instruction shall
include a specific fire fighting and evacuation plan
designed to acquaint miners on all shifts with procedures for:
(i) Evacuation of all miners not required for
fire fighting activities;

1224

(ii} Rapid assembly and transportation of
necessary men, fire suppression equipment, and
rescue apparatus to the scene of the fire; and
(iii) Operation of the fire suppression
equipment available in the mine.
(2) The approved program of instruction shall
be given to all miners annually, and to newly employed miners within six months after the date of
employment.
FINDINGS-OF FACT
1. Consol owns and operates the eight mines listed in
the caption of this decision.
2. On or before June 30, 1974, Consol submitted a program
for the instruction of miners in the location and use of fire
fighting equipment, location of escapeways, exits, and routes
of travel to the surface and proper evacuation procedures to
be followed in the event of an emergency to the appropriate
MSHA District Manager for each of the eight mines herein involved.
These programs were approved by the appropriate District Manager between the first of May and the end of July
1974.
.
3. At the time of approval, it is generally agreed that
each of these eight programs contained the current information
with regard to the required emergency procedures including
specific data concerning escape routes and locations of fire
fighting equipment, as well as an evacuation and fire fighting
plan.
4"
By memorandum dated May 6, 1987, directed to all
underground coal mine operators, Ronald Keaton, the District
Manager for the Third District of MSHA, informed Consol of
the following:

Our records indicate that your approved Program
of Instruction, Fire F~ghting and Evacuation Plan,
is outdated and needs to be undated. Please provide an updated program within seven days from
receipt of this letter. Please include an updated
map showing escapeways, exits, and routes of travel
to the surface.
In the future, this plan will be
reviewed every s
months.
If you wish to include
an updated escapeway system and any revisions to
your program with your ventilation plan, please
indicate so in your program submittal. Failure to
respond could result in a violation of 75.1101-23.
5. On May 26, 1987, Consol responded to Mr. Keaton's
memorandum of the 6th. They furnished the requested information, but only as a "courtesy" and for "informational

1225

purposes only," specifically stating that "[I]t is not being
submitted for approval."
6. On May 27, 1987, Mr. Keaton informed Consol by letter
that failure to submit the required update data for amendment
and approval purposes could result in withdrawal of the approval for the programs and plans then currently on file with
MSHA. He further informed Consol that failure to have an
approved plan could result in a violation of 30 C.F.R
§ 75.1101-23(a).
7. Subsequently, Mr. Keaton ordered a review of the
section 75.1101-23(a) programs for the eight mines herein involved. In general terms, he found them to be antiquated
plans.
8. More specifically, for each of the eight mines enumerated above:
(a)
The deficiencies noted in the approved § 75.1101-23
(a) programs and plans for the Robinson Run No. 95 mine included:
(1)
Areas listed as active working sections which are currently abandoned and/or sealed.
(2)
All current active mining sections are
not contained in the plan.
(3)
Designated escapeways have changed,
several of those noted in the plan are inaccessible and those in use are not listed in the olan.
(4)
The location of electrical equipment is
different and all current locations are not listed.
(5)
The location of firefighting equipment
is different and all current locations are not
listed.
(b)
The deficiencies noted in the approved § 75.110123 (a) programs and plans for the Arkwright No. 1 mine included:
(1)
Outdated locations for
equipment are listed.

fightinq

(2)
Incorrect data regarding mine rescue
teams is listed.

(3)
longer
listed.

Escape shafts are listed which no
st and current escapeways are not

1226

(4) Working sections are listed which no
longer exist.
(5)
Incorrect names and telephone numbers
for mine officials to be contacted are listed.
(6)
Longwall mining is done at this mine
and the plan contains no firefighting procedures
for longwall mining.
(c)
The deficiencies noted in the approved § 75.110123 (a) programs and plans for the Loveridge No. 22 mine included:
(1)
Several of the listed "fire areas" are
in abandoned areas of the mine and/or sections
which are no longer active.
(2)
Several designated escapeways are no
longer used or usable.
(3)
Firefighting equipment locations are
outdated.
(d)
The deficiencies noted in the approved § 75.110123(a) programs and plans for the Blacksville No. 1 mine included:
(1)
The noted designation color key for intake escapeway on mine maps has changed.
(2)
Escapeways are designated in the evacuation plan which no longer exist.
(3)
Locations are noted for firefighting
equipment which have changed.
(4)
Locations are noted for telephones
which have changed.
(5)
Locations are noted for sealing (emergency) materials which have changed.
(6)
Several working sections listed no
longer exist.
(7)
Longwall section firefighting programs
are omitted despite the existence of longwall
mining.
(8) Ventilation fans are listed which may
no longer exist.

1227

(e)
The deficiencies noted in the approved § 75.110123 (a) programs and plans for the Blacksville No. 2 mine included:
(l} Areas designated as escapeways which
are no longer used.
(2)
Locations of firefighting equipment
which have changed.
(3)
Locations of sealing (emergency)
materials which have changed.
(4)
Ventilation fans are listed which no
longer exist.

(5)
Most working sections no longer exist
as listed in the evacuation plan.
(f)
The deficiencies noted in the approved § 75.110123 (a) programs and plans for the Osage No. 3 mine included:
(1)
Working sections are listed which no
longer exist.

(2) Ventilation fans are listed which no
longer exist.
(3)
Escape shafts are listed which no
longer exist.

(4)
The locations for fire outlets include
areas which are no longer present and exclude
areas which currently exist.
(5)
The two currently active sections for
the mine are not included in the plans.
(6)
The names and telephone numbers of personnel to be contacted in emergencies are not
accurate.

(7)
The mine contains longwall mining areas
but no longwall section fire fighting procedures
are listed.
(g)
The deficiencies noted in the approved § 75.110123 (a) programs and plans for the Pursglove No. 15 mine included:

(1) Working sections are listed which no
longer exist.

1228

(2) Ventilation fans are listed which no
longer exist.
(3)
Escape shafts are listed which no
longer exist.
(4)
Locations for fire outlets are not
accurate in that some listed outlets no longer
exist and other existing outlets are not
sted.
(5)
The current active sections of the mine
are not listed.
(6}
There are no longwall section firefighting procedures listed.
(7)
The names and telephone numbers of personnel to be contacted in emergencies are not
accurate.
(h}
The deficiencies noted in the approved § 75.110123 (a) programs and plans for the Humphrey No. 7 mine included:
(l}
Outdated locations were listed for firefighting equipment.
(2)
Incorrect mine rescue team information
was noted.
(3}

Outdated listings of ventilation fans.

(4)
Escape facilities and escape shafts are
sted which no longer exist.
(5) Working sections are listed which no
longer exist.
(6)
The names and telephone numbers of personnel to be contacted in emergencies are not
accurate.
9. None of the plans contained provisions detailing the
location and use of self-contained self-rescuers, which are
now an indispensable piece of equipment used in emergency
evacuations.
10. Several of the programs included references to pracces and procedures which have since been modified and/or
made illegal by subsequent changes in MSHA regulations, such
as the 15 minute fan shutdown removal from area provisions,
the use of gas masks, and equipment movement provisions.

1229

11. On June 4, 1987, Mr. Keaton notified Consol that
the foregoing section 75.1101-23(a) programs were disapproved
because they were out of date and inaccurate in the respects
noted above and because the operator had not submitted relevant updated programs for approval.
12. On June 12, 1987, each of the above eight mines was
issued a section 104(a) citation for a violation of 30 C.F.R.
§ 75.1101-23(a).
13. In May of 1986, Mr. Keaton had written a similar
memorandum to that in evidence as Exhibit No. JX-1 and dated
May 6, 1987 (see Finding of Fact No. 4). There was a nonresponse to that earlier memo, but no follow-up enforcement
was carried out. No citations were issued at that time or
subsequently until June 12, 1987.
14. Consol conducts training for miners at each of
these eight mines on a regular basis, giving instruction in
fire fighting and evacuation procedures utilizing current information concerning escapeways, exits, routes of travel to
the surface, etc. In this regard, I specifically find that
Consol utilizes the old 1974 plans and programs for this purpose only to the limited extent that the more general portions
of those documents are still applicable in 1987.
15. Consol also conducts fire drills and mock mine
evacuations on a regular basis at these eight mines.
16. However, none of the evacuation and fire fighting
plans actually being used today, in 1987, by Consol for new
miner training or newly employed miner training or f
drills or evacuation drills have been approved by the District Manager under 30 C.F.R. § 75.1101-23(a).
17. From MSHA's standpoint, the lack of up-to-date
approved evacuation and fire fighting programs could conceivably in the event that that information was needed by
MSHA personnel because of a mine fire or other evacuation
emergency, hinder mine rescue or other emergency operations
to the extent that those MSHA personnel were assisting with
the emergency and needed current data.
18.
Insofar as specific mine information is or was
included in those plans and programs of 1974, which were
on file with MSHA, I find that as generally acknowledged
most of it is inapplicable to the current situation at the
mines and would be of little or no use to MSHA in the event
of an emergency.

19. These original section 75.1101-23(a) plans, which
were submitted and approved by MSHA in May-July 1974 remained

1230

in effect as the approved program until June of 1987, even
though the specific details of these plans were outdated for
many years. Mr. Keaton explained that they had their attention focused in other areas.
It was just a matter of
priorities.
DISCUSSION, FURTHER FINDINGS OF FACT, AND
CONCLUSIONS OF LAW
On it's face, the cited'regulation, 30 C.F.R. § 75.110123(a), contains two requirements. The first requires the
operator to adopt a program for the instruction of miners in
the location and use of fire fighting equipment, location of
escapeways, exits, and routes of travel to the surface and
proper evacuation procedures to be followed in emergencies.
The regulation also clearly requires that such a program,
·once adopted, be submitted for approval to the District Manager of the Coal Mine Health and Safety District in which the
mine is located no later than June 30, 1974. Consol complied
with this requirement in a timely fashion back in 1974.
I
note here that there is no stated regulatory requirement for
this program ever to be submitted for approval again.
The second requirement contained in this subsection
that contained in (a} (2) wherein it requires that the approved
program of instruction be given to all miners annually, and
to newly employed miners within six months after they are employed. This plainly has not been done by Consol for many
years, at least not in the particular mine specific areas of
these programs for the simple reason that the specifics have
changed many times over in the intervening thirteen years.
It would be ridiculous for example to instruct a miner to go
to a long-closed escape facility in the event of an emergency
just because that was part of the approved plan (circa 1974).
MSHA 1 s position in this case is that their interpretation of the regulatory requirements should prevail albeit
that those "requirements" are admittedly not directly stated
in so many wordso That interpretation is, at least in the
Third District of MSHA, and at least since May 6, 1987, that
these plans and programs approved back in 1974 need to be
reviewed and updated every six months, in order to retain
their approved status. This has a lot of common sense
appeal since there obviously are significant changes going
on in an active, producing coal mine that would significantly
affect fire-fighting and evacuation plans and procedures, at
least insofar as specific particulars are concerned. However,
one has to first wonder why MSHA doesn't require this review
and updating by regulation rather than by District Manager
memorandum, and secondly, why it took them thirteen years to
get around to it.

1231

tt is a matter of hornbook law that courts must accord
great deference to an agency's construction of regulations
which it has drafted and continues to administer. See
generally, Udall v. Tallman, 380 U.S. 1 (1965). To uphold
the interpretation, a court need not find the agency's interpretation to be the only or the most reasonable one. City
of Aurora v. Hunt, 749 F.2d 1457, 1462 (10th Cir. 1984-)-.-"A
regulation must be interpreted so as to harmonize with and
further and not conflict with the objective of the statute
it implements." Emery Mining Corp. v. Secretary of Labor
(MSHA), 744 F.2d 1411, 1414 (10th Cir. 1984); (quoting,
Trustees of Indiana University v. United States, 223 Ct. Cl.
88, 618 F.2d 736, 739 (1980)). In Emery, the issue before
the Court was the proper interpretation of the words "annual
refresher training" found in 30 C.F.R. § 48.8. While the
Court found that it was possible to construe the words to
permit training given up to 23 months apart on a calendar
year basis, the Court emphatically rejected such construction
as undermining the Act, concluding that it is "at odds" with
the language and objective of the statute [to train each 12
months] , "even if arguably consistent with the language of
the regulation."
However, contrary to MSHA's "interpretation," with regard to the first requirement of§ 75.1101-23(a); that pertaining to the submission of programs and plans for the approval of the District Manager, on or before June 30, 1974,
I specifically find that this is clearly a one-time requirement.
It is not subject to any other interpretation because
the wording is quite clear a.nd incapable of being "interpreted"
to mean something else. Further, the policy memorandum issued
by the District Manager, which is in evidence as Exhibit JX-1
is not enforceable and its contents conflict with the plain
meaning of§ 75.1101-23(a). There is no language in this
regulation that would inform an interested party that periodic
reviews at six-month intervals are required.
If that is what
was intended, the drafter could very easily have included a
comma and a follow-on phrase after "June :30, 1974" to the
effect" . . . June 30, 1974, and thereafter, at intervals of at
least every s
months." But he didn't.
The Secretary is aware of similar regulatory language
since two other regulations requiring the submission, review,
and subsequent approval or disapproval of plans do include
such language.
The regulation at 30 C.F.R. § 75.200 provides
that "[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 in
printed form on or before May 29, 1970.
. . • Such plan shall
be reviewed periodicqlly, at least every 6 months by the Secretary, taking into consideration any falls of roof or ribs

1232

or inadequacy of support of roof or ribs. .
" And, in 30
C.F.R. § 75.316, it is provided that "[A] ventilation system
and methane and dust control plan and revisions thereof suitable to the conditions and the mining system of the coal mine
and approved by the Secretary shall be adopted by the operator
and set out in printed form on or before June 28, 1970.
. .•
Such plan shall be reviewed by the operator and the Secretary
at least every 6 months."
This type of language establishing automatic review of
approved plans is conspicuously missing in 30 C.F.R. § 75.110123, and I find that Mr. Keaton and his memorandum of May 6,
1987., cannot now legally and belatedly supply the missing
words.
That said, it is still incumbent upon Consol to comply
with all of § 75.1101-23(a), including subsection (a) (2),
which----st'ates that the approved program of instruction be
given to the miners in their employ. Therein lies the problem for Consol and that is the exact violation cited in the
eight virtually identical citations. As I found in Finding
of Fact No. 16, none of the eight mines involved herein are
actually using the ~pproved program of instruction that was
submitted and approved back in 1974. Not that they should
be under the circumstances, but the fact is, they are not.
I accept as credible evidence the contestant's proffered
testimony that the operator is still using the more general
portions of those plans, but the fact remains that large
portions, the majority of the plans, are simply out of dnte
and unusable for emergency training.
Thus, the paradox~the
operator need not by the stated terms of the cited regulation
do anything to update or revise the once-approved program,
however; since they must train their miners in accordance with
§ 7 5. 1101-23 (a) ( 2) using an approved program, there is a .de
facto requirement to have a current, approved program. Neither
a current, unapproved program or an approved, outdated program
will suffice as a practical matter. Therefore, it follows
that "something" has to be submitted to MSHA in order to make
the actual program of instruction also the approved program
of instruction, even though the regulation per se is silent
on the subject.
At the hearing, and in their respective briefs, the parties argue the current status of the 1974 plans. The Secretary urges that those
ans, once admittedly approved long
ago are now disapproved by fiat of the District Manager.
Consol, on the other hand, argues that the District Manager's
actions were arbitrary and capricious and without the force
and effect of law. After much reflecting I don't think that
issue is particularly relevant to the alleged violation herein because regardless of whether or not Consol did or didn't

1233

have an "approved" program filed with MSHA at the time the
citations were issued, the fact is they were not actually
using it to instruct their miners as required by 30 C.F.R.
§ 75.1101-23(a) (2).
The fact that Consol might very well
have been using an adequate "unapproved" program or a "selfapproved program" in some or all of their mines does not
satisfy the regulatory requirement of subsection (a) (2):Therefore, I find a violation of 30 C.F.R. § 75.1101-23(a) (2),
as alleged, in each of the eight citations at bar.
A violation is properly designated significant and substantial "if, based on the particular facts surrounding that
violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness
of a reasonably serious nature." National Gypsum, 3 FMSHRC
at 825.
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984),
the Commission explained:
In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum the Secretary ••.
must prove:
(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safety-contributed to by the violation; (3) a re~sonable
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature.
The Commission has explained further that the third element
of the Mathies formula "requires that the Secretary establish
a reasonable 1
lihood that the hazard contributed to will
result in an event in which there is an injury." U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 {August 1984). (Emphasis deleted).
They have emphasized that, in accordance with the
language of section 104(d) (1), it is the contribution of a
violation to the cause and effect of a hazard that must be
significant and substantial.
6 FMSHRC at 1836.

In order to establish the significant and substantial
nature of the violation, the Secretary need not prove that
the hazard contributed to actually will result in an injury
causing event.
The Commission has consistently held that
proof that the injury-causing event is reasonably likely to
occur is what is required. See, e.g., U.S. Steel Mining Co.,
7 FMSHRC at 1125; U.S. Steel~ningCo., 7 FMSHRC 327, 329
(March 1985).
The violation I have already found.
The discrete safety
hazard here is that miners could be inadequately trained if

1234

the program of instruction under which they are actually
trained in such important areas as fire fighting and evacuation procedures is inadequate.
I do not make any finding
that the program they actually use is inadequate, only that
it is unapproved and might be inadequate.
In this regard, I
note that MSHA has not passed on the adequacy of the training
program they actually use, primarily because Consol has not
submitted it for approval, but has recently "disapproved" the
1974 program which they haven't us~d for years. anyway.
It is axiomatic that an inadequate, incomplete or deficient program of instruction covering these important subjects could reasonably lead to injury and/or loss of life in
the event that an emergency should occur requiring immediate
action. Again, I do not know if the programs Consol is
actually using are inadequate, incomplete or deficient, but
I do know they are unapproved, and therefore could or might
be all three~ Also, as I set out in Findings of Fact Nos. 17
and 18, since MSHA's official file copies of the operator's
fire fighting and evacuation plans and programs are out-ofdate and generally inapplicable to the current situation at
the mine, any assistance that MSHA personnel might provide
in the mine rescue and/or fire fighting operations could
conceivably be delayed while they sought current information
to act on.
Accordingly, I find the instant citations to be properly
designated "significant and substantial."
In light of the foregoing, it is ORDERED that Citation
Nos. 2699139, 2708499, 2902641, 2707824, 2902614, 2902888,
2699155, and 2705133 ARE AFFIRMED and that the operator's
notices of contest of same be DISMISSED.

Rbtllfa~

Admin~ttative Law Judge

Distribution:
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Rd., Pittsburgh, PA 15241 (Certified Mail)
James H. Swain, Esq., Office of the Solicitor, U. S. Department of Labor, 3535 Market St., Philadelph , PA 19104
(Certified Mail)

1235

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUL 1O1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 86-291
A. C. No. 36-04007-03512

v.
Mack Mine
ENERGY SUPPLY, INCORPORATED/
DONRAY INDUSTRIES,
INCORPORATED,
Respondent
UNITED MINE WORKERS OF
AMERICA ON BEHALF OF
JEFFREY STENNETT,
Complainant

COMPENSATION,PROCEEDING
Docket No. PENN 86-228-C

v.

Mack Mine

ENERGY SUPPLY, INCORPORATED/
DONRAY INDUSTRIES,
INCORPORATED,
Respondent
DECISION
Appearances~

Susan Mo Jordan, Esq. 9 Office of the Solicitor,
u. s. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary~
Vasilis Co Katsafanas, Esq., Pittsburgh,
Pennsylvania, for Respondent.

Before:

Judge Weisberger
STATEMENT OF THE CASE

The above Civil Penalty Proceeding is before me based upon a
Petition for Assessment of Civil Penalty filed by the Secretary
(Petitioner) on November 5, 1986, alleging a violation by Energy
Supply, Incorporated (Respondent) of 30 C.F.R. § 77.404(a). An
Answer was filed by the Respondent on January 15, 1987. On
February 6, 1987, I ordered the above Civil Penalty Proceeding to
be consolidated with Docket No. PENN 86-228-C, as identical
issues were involved in both cases i.e., the propriety of the
issuance of Order No. 2695927. Pursuant to notice, these cases

1236

were scheduled for hearing on May 5, 1987, in Pittsburgh,
Pennsylvania. On April 29, 1987, a communication was received
from the United Mine Workers of America, the representative of
the complainant in the above compensation case, indicating that
it will not appear at the hearing on May 5, 1987, and would rely
on evidence presented by the Secretary in the above Civil Penalty
Proceeding regarding whether Order No. 2695927 was properly
issued. The Civil Penalty Proceeding, Docket No. PENN 86-291,
was heard on May 5, 1987, in Pittsburgh, Pennsylvania. Wendell
Hill testified for the Petitioner and Raymond L. Hulings
testified for the Respondent. At the hearing, Counsel for both
Parties indicated that a settlement had been reached with regard
to the following Citations:
2695932, 2695934, and 9945451 and
Order No. 2695934. The Secretary, subsequently, on May 12, filed
its Motion to Approve Settlement concerning these citations. For
the reasons that follow, these Motions have been granted.
Petitioner filed its brief on June 25, 1987 and Respondent
filed its brief on June 15, 1987.
Regulatory Provision
30 C.F.R. § 77.404(a) provides as follows:
"Mobile and
stationary machinery and equipment shall be maintained in safe
operating condition and machinery or equipment in unsafe condition shall be removed from service immediately."
Issues
1.

Whether Respondent violated 30 C.F.R. § 77.404(a).

2o
If a violation of Section 77.404(a), supra, occurred,
was it of such a nature as could have significantly and substantially contributed to the cause and
feet of a safety hazard.

3.
If a violation of Section 77.404(a), supra, occurred,
whether such violation was caused by Respondent's unwarrantable
failure to comply with Section 77.404(a).
Findings of Fact and Conclusions of Law
I have jurisdiction to hear and decide this case. The
Respondent owns and operates the Mack Mine which is subject to
the provisions of the Federal Mine Safety and Health Act of 1977"
On May 15, 1986, at approximately 9:30 a.m., Wendell Hill, a
MSHA Inspector, in the course of an inspection at Respondent's
Mack Mine, issued a 104(d)(2) Order in which he alleged that a
Ford Truck, Model 800, that had a drill mounted on it, was not
being maintained in good operating condition inasmuch as the

1237

drive engine "will not operate," and the differential gears were
"damaged." The Respondent does not contest the existence of the
above conditions.
Its owner and operator, Raymond Hulings indicated, in essence, that the truck's engine and gears had been
inoperable for approximately 2 month prior to May 15, 1986.
Although the truck's brakes were fully operable, it is clear that
because the engine and gears were not operable, the truck was not
maintained in a safe operating condition. Also, although the
truck was not being used in a fashion that required its engine
and gears to function, it was not removed from service as it was
being used as a platform for a drill rig that was mounted on it,
and was pushed or pulled by a bulldozer, 3 to 4 times a shift, to
transport the drill to various drilling sites. As such, I
conclude that Section 77.404(a) has been violated.
Upon the truck being pulled by a bulldozer from one drilling
site to another the operator of the bulldozer, and the person
sitting in the truck's cab to control it, would both be facing in
the same direction.
Accordingly, there would not be any possibility of visual communication between the two. Further, audio
communication would be difficult. Thus, some degree of hazard
would be created if the truck would be pulled down a grade. In
this situation, the truck would not have the benefit of the
braking power of its engine, and its rate of descent would be
controlled solely by its brakes. Hence, there would be some
degree of risk of a collision with the bulldozer. However, it
was essentially the uncontradicted testimony of Hulings, that the
truck is pulled at a speed of approximately one or two miles an
hours, and that more than half the time when the truck is moved,
it is moved along the bench which is level.
When the Order in question was issued; there was no lighting
system in the area of the highwallo
Thusu when the truck was
being pushed by a bulldozer during an afternoon shift after sunset the area behind the truck towards the highwall, would be
illuminated only by the lights on the rear of the truck, as well
as the headlights from the bulldozer. Also, were the person in
the cab of the truck to apply the brakes to stop the truck, the
operator of the bulldozer would notice a slight decrease in speed
of the bulldozer and an increase in its RPMso
However, the applica on of the truck 6 s brakes would not stop the bulldozer from
pushing it. Accordingly, the failure to remove the trucK from
service, did create some degree of risk of the bulldozer pushing
the truck over the highwall or causing it to come in contact with
and injure a spotter who might be working in the area behind the
truck"
I conclude that there is no evidence that the fashion in
which the truck was used, when being pulled or pushed by the
bulldozer, created any reasonable likelihood of a injury that

1238

would of a reasonably serious nature.
(See, Mathies Coal Co., 6
FMSHRC 1 (January 1984). In this connection, I note the uncontradicted testimony of Hulings, that the bulldozer pulling the truck
was moving at about 1 or 2 miles an hour, and that more than half
the time the truck was being pulled on a level grade. Also, when
the truck was being pushed by the bulldozer, the blade of the
bulldozer was not raised high enough to prevent the bulldozer
operator from being able to see the operator of the truck who was
facing him. In this regard, I rely more on the testimony of
Hulings, whose testimony was ba9ed on his p'ersonal knowledge,
rather than the upon testimony of Hill, whose knowledge in this
regard was based upon what others told him. Taking into account
the facts that the back of the drill had 12 volt flood lights,
that the bulldozer travels at only 1 or 2 miles an hour, and that
the operators of the truck and bulldozer were in visual contact,
I find that the evidence does not establish that the failure to
re~ove the 800 truck resulted in any reasonable likelihood of a
reasonably serious injury. Therefore, based upon all of the
above, I conclude that the violation by Respondent of 30 C.F.R.
§ 77.404(a), was not significant and substantial (See Mathies
Coal Co., supra).
At the date the Order herein was issued, Hulings, Respondent's
owner and operator, had known for 2 months that the engine and the
gear of the 800 truck was inoperable. In spite of this, Respondent
did not repair the truck nor did it remove it from service. Accordingly, I find that the violation of section 77.404(a), was due to
Respondent "unwarrantable failure."
CU. s. Steel Corp., 6 FMSH,RC
1423 (June 1974).
Based· upon the statutory criteria in Section 110 of the
Federal Mine Safety and Health Act of 1977 1 I find that a penalty
of $100 is appropriate for the violation of 30 C.F.R § 77.404(a).
Subsequent to the hearing, on May 14, 1987, the Petitioner
has filed a Motion to Approve a Settlement Agreement for Citation
No. 2695932, Citation No. 9954451, and Order No. 2695934. A
reduction in penalty from $123 to $80 was proposed. I have considered the representations and documentation submitted, and I
conclude that the -proffered settlements are appropriate under the
criteria set forth in Section llO(i) of the Act.
On May 22, 1987, the United Mine Workers of ~merica and
Energy Supply Incorporated filed a Joint Stipulation wherein they
agreed that if Order No. 26959527 is found to have been properly
issued, then Jeffery Stennett will be entitled to compensation
pursuant to Section 111 of the Federal Mine Safety and aealth Act
of 1977. The Parties further stipulated that Energy Supply
Incorporated will, within 15 days of the issuance of a final decision in PENN 86-291, pay Jeffery Stennett $526.05 plus interest

1239

at the rate of 10 percent per annum. Considering this Stipulation,
and the fact that I have found that Order No. 2695972 was properly
issued, I conclude that Jeffery Stennett is entitled to compensation pursuant to section 111 of the Act, in the amount oi $526.05
plus interest at the rate of 10 percent per annum.
ORDER
It is ORDERED that:
1. The operator pay the sum of $223, within 30 days of this
decision, as a civil penalty for the violations found herein.
2. The operator pay Jeffery Stennett, within 15 days of
this decision, $526.05 plus interest at the rate of 10 percent
per annum.

~is~

Administrative Law Judge

Distribution:
Susan M. Jordan, Esq., Office of the Solicitor, u. S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Mr. Raymond L. Hulings, President, Energy Supply, Incorporated/
Donray Industries, Incorporated, Box 225, Armagh, PA 15920
(Certified Mail)
Joyce Ao Hanula, Legal Assistantv UMWAv 900 15th Streetv NW;
Washington, DC. 20005 (Certified Mail)
Vasilis c. Katsafanas, Esq., Berkman, Ruslander, Pohl, Leiber &
Engel, 40th Floorv One Oxford Centre, Pittsburgh, PA 15219-6498
(Certified Mail)
dcp

1240

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

July 14, 1987

CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 87-48
A. C. No. 33-01159-03725
Powhatan No. 6 Mine

NACCO MINING COMPANY,
Respondent
DECISION APPROVING SETTLEMENTS
ORDER TO PAY
On June 22, 1987, the Solicitor submitted a motion for
settlement of the four violations presented on the penalty
petition. The originally assessed penalties totaled $9,000
and the proposed settlements were for $7,000. On June 26,
1987, I advised the parties by telephone that I would not
approve the motion as submitted. Thereafter the parties
again conferred. On June 30, 1987, the Solicitor submitted
an amended motion for settlement and proposed settlements
totaling $7,500.
On July 16, 1986, MSHA conducted an investigation of a
nonfatal mine accident that took place on the surface of
NACC0 1 s Powhatan No. 6 Mine on July 15, 1986. The investigation reported that at approximately 2:55 p.m. a road
grader 9 while ascending the roadway, drifted backwards gaining speed as it descended the roadway, The grader overturned
and injured the man who was running it, The subject
citations arise from this incident,
Citation No. 2824598 was issued for a violation of
30 C,F.R. §77,403a(c)(l) because the grader did not have a
rollover protective structure ( 11 ROPS 11 ) . The Solicitor advises that although the lack of a ROPS was a violation of the
cited standard, it was not a cause of the accident. The
absence of a ROPS did not cause the grader to roll backwards.
The existence of the ROPS might possibly have reduced the
gravity of the injury, but in and of itself, did not contribute to the occurrence of the incident. Moreover, the grader
was equipped with a substantial enclosed metal cab. The cab,
however, did not rise to the level of being a ROPS. Finally,
the grader had existed in this condition on the mine property
for fifteen years without prior incident and without being
cited by MSHA. Based upon the foregoing, gravity and negligence are somewhat less than originally thought. The

1241

original assessment was $2,500 and the proposed settlement is
$2,000. I approve the settlement which is a substantial
amount.
Citation No. 2824599 was issued for a violation of
30 C.F.R. § 77.1605(k) because on the roadway where the accident occurred berms or guards were not provided. However,
the MSHA inspector determined that the lack of berms or
guards had no causal relationship to the accident. The
grader rolled off on the right side of the road where berms
were missing, not the left side. Furthermore, the 31 feet
cited on the right was far removed from the accident site.
The original assessment was $1,000 and the proposed settlement is $300. In light of the particular circumstances, set
forth herein, I approve the recommended settlement.
Citation No. 2824600 was issued for a violation of
30 C.F.R. § 77.1710(i) because suitable seat belts had not
been provided in the cab of the road grader. MSHA determined
that the inadequacy of the seat belt did not cause the
accident nor its severity. The Solicitor explained the
method in which the grader is operated as follows:
The use of the grader often requir~s that
the operator stand up to view the area on
either side of the grader and to observe
the operation of the grader's blade beneath
him. In this method of operation, the
standard type of seat belt cannot be engaged. To compensate for the operational
necessity of standing and to overcome the
inadequacy of the standard seat belt in
this situation, the operator is attempting
to obtain and install seat harnesses that
will allow attachment while standing.
1t does not appear that MSHA ever has required the
operator to have a seat harness other than the standard belt.
The original assessment was $500 and the proposed settlement
is $200. In light of the particular circumstances, set forth
herein, I approve the recommended settlement.
Citation No. 2827922 was issued for a violation of
30 C.F.R. § 77.1605(b) because the grader had inadequate
brakes. Repair work done on the braking system, the previous
Saturday, resulted in the plugging of one of the hydraulic
brakelines. Based on this, it was concluded that the brakes
were inadequate and this inadequacy was the cause of the
aforementioned accident. The original assessment was $5,000
and this is the proposed settlement. The Solicitor puts forward several mitigating factors, none of which I find
persuasive. The Solicitor also states why the operator
1242

believes that if the brakes had been applied properly under
the stalled engine conditions, the grader would have held.
also reject this proposition as based upon a series of
unfounded assumptions. I approve the recommended settlement,
however, which is a substantial amount because it accords
with the high degree of gravity and negligence presented.
The foregoing settlements also have taken into account
and are based upon the Solicitor's representations regarding
the other statutory criteria under section llO(i) of the Act.
In light of the foregoing the recommended settlements
are APPROVED and the operator is ORDERED TO PAY $7,500 within
30 days from the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Patrick M. Zohn, Esq., Office of the Solicitor, U. S. Department of Labor, 881 Federal Office Building, 1240 East Ninth
Street, Cleveland, OH 44199 (Certified Mail)
Mr. Richard S. Rice, Director Safety & Training, Nacco Mining
Company, P. 0. Box 231, Clarington, OH 43915 (Certified
Mai l )
I g1

1243

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

JUL 151987

CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 87-35
A.C. No. 11-02662-03549

v.

No. 1 Mine

WHITE COUNTY COAL CORPORATION
Respondent
CONTEST PROCEEDING

WHITE COUNTY COAL CORPORATION
Contestant

Docket No. LAKE 87-18-R
Citation No. 2816261;
11/5/86

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

Pattiki Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

Docket No. LAKE 87-35 is a petition for assessment of a
civil penalty under§ 105(d} of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801, et seq.
Docket 'No.
LAKE 87-18-R is a notice of contest seeking review of the
citation involved in the penalty case"
Petitioner has filed
a motion to approve a settlement agreement and to dismiss
both cases.
I have considered the representations and
documentation'submitted and I conclude that the proffered
settlement is consistent with the criteria in section llO(i)
of the Act.
ORDER
WHEREFORE IT IS ORDERED that the motion for approval of
settlement is GRANTED and Respondent shall pay the approved
penalty of $900 within 30 days of this Decision.
Upon such
payment both proceedings are DISMISSED"

~~:-&-1
Administrative Law Judge
Distribution:
1244

Barbara A. Myers, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, N.W., Washington, DC 20004-2504 (Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, Department
of Labor, Suite 400, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)

kg

1245

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

JUL 151987
ERNEST R. LAFON, JR.,
Complainant
v.

DISCRIMINATION PROCEEDING

VIRGINIA LIME COMPANY,
Respondent

MD 86-16

Docket No. VA 87-1-DM

Kimballton Mine
ORDER OF DISMISSAL
On July 10, 1987, Counsel for Respondent filed with the
Commission an order endorsed by Counsel for Complainant which
indicated that all matters in controversy between the Parties
have been settled, and requested that the action be dismissed
with prejudice.
Accordingly, it is ORDERED that the above· case be DISMISSED
with prejudice.

g~

Administrative Law Judge

Distribution~

Darrel Tillarv Esqov Long & Tillerv P. 0. Box 196u Blacksburg, VA
24060 (Certified Mail)
Co Richard Cranwell, Esq., Patrick Shield, Esq., Cranwell, Flora
and Moore, P. Oo Box 91, Roanoke, VA 24002 (Certified Mail)

dcp

1246

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

July 16, 1987

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 87-92
A. C. No. 36-00917-03653

v•

Lucerne No. 6 Mine

HELVETIA COAL COMPANY,
Respondent
HELVETIA COAL COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. PENN 87-51-R
Citation No. 2693665; 11/10/86

v.

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

Docket No. PENN 87-52-R
Citation No. 2693666; 11/10/86
Docket No. PENN 87-53-R
Citation No. 2693667; 11/10/86
Docket No. PENN 87-54-R
Citation No. 2693668; 11/10/86
Docket No. PENN 87-55-R
Citation No. 2693669; 11/10/86
Docket No. PENN 87-56-R
Citation No. 2693670; 11/10/86

Docket No. PENN 87-57-R
Citation No. 26936.71; 11/10/86
Docket No. PENN 87-58-R
Citation No. 2693672; 11/10/86

Docket No. PENN 87-59-R
Citation No. 2693673; 11/10/86
Docket No. PENN 87-60-R
Citation No. 2693674; 11/10/86
Lucerne No. 6 Mine

1247

DECISION APPROVING SETTLEMENT
ORDER TO PAY
ORDER OF DISMISSAL
Before:

Judge Merlin

The Solicitor has filed a motion to approve settlements of
the ten violations involved in this case. The total of the
originally assessed penalties was $1,000 and the total of the
proposed settlements is $605.
The motion discusses the violations in light of the statutory criteria set forth in section llO(i) of the Act. The subject citations were issued for violations of 30 C.F.R.
§ 48.27(c), because the operator had assigned ten miners to participate in the moving of a piece of equipment under energized
trolley wire who were not specifically trained 'Or instructed regarding this task. The Solicitor represents that a reduction
from the original assessment is warranted for the following
reasons:
The reduction is proposed because of a
genuine dispute or misunderstanding
between the parties regarding the requirements of task training. The
operator was of the opinion that the
miners had to be task trained only if
and when they became needed in the
operation and only for the specific task
they would perform. For example, a
miner would be specifically task trained
on how to jack up the piece of equipment
when and if it was required during the
move. MSHA required, however, that the
miners be task trained and instructed in
the general safety aspects of moving
equipment under energized trolley wire
once they were assigned the job and
before they were actually placed. Therefore, if an emergency situation
occurred, as one did, every miner involved would have been trained in the
safety procedures of the task. Because
of this honest difference in interpretation, the parties propose that the
negligence of the violations be reduced
to moderate.
The subject citations were originally assessed at $100 each.
The motion proposes that Citation Nos. 2693665, 2693666, 2693667,
2693670, 2693671, 2693672, and 2693673 be reduced to $65 for the
violation. With respect to Citation Nos. 2693668, 2693669, and
2693674, the motion proposes an assessment of $50, because "the
1248

three miners cited in [those] citations . • • had been trained as
motormen. [Thus], [t]heir training would have included some
aspects of moving off-track equipment."
I accept the Solicitor 1 s representations and approve the
recommended settlements. The parties should be aware, however,
that I assume from the proposed settlement that the operator now
understands what is required of it.
Accordingly, the motion to approve settlements is GRANTED
and the operator is ORDERED TO PAY $605 within 30 days from the
date Df this decision.
It is further ORDERED that the corresponding review cases,
Docket Nos. PENN 87-51-R, PENN 87-52-R, PENN 87-53-R,
PENN 87-54-R, PENN 87-55-R, PENN 87-56-R, PENN 87-57-R,
PENN 87-58-R, PENN 87-59-R and PENN 87-60-R, pending before me
are hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Susan M. Jordan, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
~hiladelphia, PA
19104 (Certified Mail)
William M. Darr, Esq., Helvetia Coal Company, 655 Church Street,
Indiana, PA 15701 (Certified Mail)
Edward J. Onuscheck, Vice President; Safety and Training,
Helvetia Coal Company, 655 Church Street, Indiana, PA 15701
(Certified Mai1)
Michael H. Holland Esq., UMWA, 900 15th Street, N.W.,
Washington, DC 20005 (Certified Mail)
I gl

1249

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

22041

JUL 1 71987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION ON BEHALF OF
MARK R. KRAUS,
Complainant

DISCRIMINATION PROCEEDING
Docket No.

L~KE

87-67-D

VINC CD 87-03

v.
Green Ridge Mine
GREEN RIDGE MINING, INC.,
Respondent
ORDER OF DISMISSAL
On July 14, 1987, the Secretary filed a Motion to Dismiss
predicated upon a Consent Agreement, executed on July 9, 1987,
which sets forth the terms of the settlement of this case and
which indicates that the Parties agree, that the Complaint and
Application for Reinstatement be dismissed with prejudice.
Accordingly, the Complaint and Application for Reinstatement
is dismissed with prejudice, and it is ORDERED that this case be
DISMISSED with prejudice.
_,

(

/(~-=-:-::

r'/)

\ /:1

~
~

~~
-·----Avram Weisberger

-·

Administrative Law Judge
Distribution:
Frederick W. Moncrief, Esq., Office of the Solicitor, U. S.
Department of Laborr Suite 400, 4015 Wilson Boulevard, Arlington,
VA 22203 (Certified Mail)
Mr. Dan Foertsch, President, Green Ridge Mining, Inc., P. O.
Box 16, Lamar, IN 47550 (Certified Mail)
dcp

1250

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

July 17, 1987

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ON BEHALF OF BRIAN S. OUSLEYr
Complainant
v.

.

DISCRIMINATION PROCEEDING

.

MD 86-18

Docket No. SE 87-85-DM

0

C.P.L. Plant

METRIC CONSTRUCTORS, INC.,
Respondent
ORDER DENYING RESPONDENT'S MOTION
TO DISMISS OR FOR SUMMARY DECISION
In its Answer, filed on June 16, 1987, Respondent moved to
dismiss "or For Summary Decision." On June 23, 1987, the
Secretary, on behalf of the Complainant, filed a motion to extend
the time to reply to Respondent's motion. On June 24, 1987, an
order was entered extending the time for the Secretary to reply
to this motion until July 13, 1987. On July 14, 1987, the
Secretary filed its response to the Respondent's motion.
In essence, the basis for the Respondent's motion is that
the complaint herein is time-barred. The alleged act of discrimination occurred on January 21, 1986, and a complaint was filed
with MSHA on February 3Q 1986. MSHA conducted an investigation
but did notv within 90 days after the filing of the claim with
MSHA or at any timev issue any determination of a violation of
the Federal Mine Safety and Health Act.
On May 12v l987v a complaint of discrimination was filed with the Commission.
Judge Broderick, in Secretary v. Jim Walter Resources, Inc.,
9 FMSHRC 263 (February 1987>v analyzed the relevant law with

regard to the time obligations of the Acto
sis as
lows~

I

concur in his analy-

The Act further provides that upon receipt of a complaint by a miner, the Secretary shall con:unence an
investigation within 15 daysv and if he determines that
discrimination has occurred, shall immediately file a
complaint with the Commission. It directs the
Secretary to notify the miner within 90 days of the
receipt of a complaint of his determination whether a
violation has occurred. The Legislative History of the

1251

Act' makes it clear that this time limitation is not
jurisdictional and that Complainant should not be prejudiced by the failure of the Government to meet its
time obligations. S. Rep. No. 181, 95th Cong., 1st
Sess. 36 ~1977), reprinted in Senate Subcommittee on
Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977 at 624 (1978). However the
Commission has held that a long delay coupled with a
showing of prejudice to the operator may subject the
complaint to dismissal. Secretary/Hale v. 4-A Coal
Company, Inc., 8 FMSHRC 905 (1986).
(Secretary v. Jim Walter Resources, Inc., supra, at
266).
In essence, it is Respondent's position that the complaint
herein is frivolous and that there is no justification for the
delay by the Secretary in filing the complaint more than a year
after the period established in the Act. Without making any
decision as to the merits of this action, I find that the allegations in the complaint do state a cause of action under the Act,
and as such the complaint is not frivolous. Furthermore,
according to the affidavit of July 9, 1987, of William H. Berger,
<"Attach" 4 to the Secretary's response), the case was received
in the Atlanta Regional Solicitor's Office on June 11, 1986, and
in August 1986, when Berger contacted the Complainant about the
case, he was informed that the latter had instituted a State
Court Action arising out of the same transaction alleged in the
MSHA complaint, except that "the State Law supposedly provided
for punitive damages." Berger then informed the Complainant and
his attorney, Ronald S. Webster, that the Department of Labor
would not proceed with his case while the State Court proceeding
was ongoingo Berger stated that he was told by both the
Complainant and Websterv on several occasionsv that they desired
to proceed in State Court because of the possibility of
recovering punitive damages. Berger stated in his affidavit
that in mid December 1986 he was informed, by the Complainant,
that the State Court had denied any claim for punitive damages
and that he, the Complainant, wished to proceed with the MSHA
claim. The case was subsequently transferred to the National
Solicitor 6 s Office on March 11 9 1987. Based upon the affidavit
of Berger, I conclude that there was some justification for the
Secretary 1 s delay in filing a complaint in this matter.
In addition, the Respondent alleges that it has suffered
substantial prejudice, by reason of Respondent's delay in bring
this action, in that all material witnesses have been laid off,
and that it has been denied an opportunity to conduct discovery
and defend the claim while witnesses and documentary evidence
were readily and inexp~nsively available. Respondent also argued

1252

that the residences of key witnesses, including Elmer Podratz and
Michael o. Webb, are outside the State of Florida and unknown.
However, it appears from the affidavit of John K. Day, Jr., that
Podratz Cwho left the Respondent on or about July 10, 1986), and
Webb <who left the Respondent on May 15, 1987) are, to the best
of Day's knowledge, residing in Charlotte, North Carolina and
Louisiana respectively. No facts are alleged to establish any
reason why Podratz and Webb cannot be subpoened to testify in
this matter. The same pertains to Duke Roberts and James
Wilkerson who, accordingly to the affidavit of Day, left the
Respondent on May 28, 1987 and January 9, 1986 respectively, and,
to the best of Day's knowledge, are residing in Virginia and
Washington State respectively.
According to Day's affidavit, Fred K. Coogle and Robert
Baker left the Respondent on July 9, 1986 and October 6, 1986,
and as to each of them Day indicated "I do not know his current
whereabouts." Respondent has not described in any detail the
scope of any prospective testimony of Coogle a~d Baker. As such,
it has not been established that their testimony is critical to
Respondent's case. Further, Respondent has not set forth any
facts which would establish that Coogle and Baker can not be
served with a subpqena. The fact that Day does not know their
current whereabouts does not establish that Respondent has no way
of locating these individuals.
According to the affidavit of Day, the other individual
having knowledge as to the fact and circumstances surrounding the
Complainant's termination is John Camball, who is currently
employed by Respondent and certainly is available to testify.
Therefore, accordingly, I find that Respondent has not shown
material legal prejudice attributable to the Secretary's delay in
filing the complaint with the Commission.
(See Secretary/Hale v.
4-A Coal Companye Inc.v 8 FMSHRC 905 (June 1986)Q
Based upon all the above, and in the interest of justice, it
is ORDERED that Respondent's Motion to Dismiss or for Summary
Decision is DENIED.

k_
Avram Weisberger
Administrative Law Judge
(703) 756-6210

1253

Distribution:
Frederick W. Moncrief, Esq., Office of the Solicitor, U. s.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Mary A. Lau, Esq., Lau, Lane, Pieper & Asti, P.A., P.
Tampa, FL 33601 (Certified Mail)
dcp

1254

o. Box 838,

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

22041

JUL 171987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 87-111
A.C. No. 36-00963-03633

v.
Mathies Mine
MATHIES COAL COMPANY,
Respondent
DECISION APPROVING
Before:

SETTLE~1ENT

Judge Broderick

On July 10, 1987, the Secretary of Labor filed a motion for
approval of a settlement reached by the parties in this case.
The violations were originally assessed at $126 and the parties
proposed to settle for $50.
The motion states that there were several mitigating factors
justifying a reduction in the penalty. The violation charged
was failure to adequately ventilate a battery charger.
The
charger was not in service and was not energized. It was located
in a steel fireproof enclosure and equipped with a fire extinguisher.
The charge and its cable were protected with short
circuit and overload protection.
I have considered the motion in the light of the criteria
in section llO(i) of the Act and conclude that it should be
approved.
Accordingly 1 the settlement is APPROVED and Respondent is
ORDERED TO PAY the sum of $50 within 30 days of the date of this
decision.

I

I
·
.' !/·:::.,•·:.
/-~.

/1

j;> /,·:<, ,·r

'~
'

i

•.·,/
..

/'--/

...

James A. Broderick
Administrative Law Judge

1255

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)
Malcom Dunbar, Manager-Safety, Mathies Coal Company, Drawer D,
Finleyville, PA 15232 (Certified Mail)
/fb

1256

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

JUL 201987
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 86-116-M
A.C. No. 04-01616-05503

v.

Santa Margarita Mine

KAISER SAND & GRAVEL COMPANY,
Respondent
DECISION
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California,
for Petitioner;
Mr. Clair E. Hay, Safety Manager, Kaiser Sand and
Gravel Company, Pleasanton, California,
pro se.

Before:

Judge Cetti

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 proceeding was initiated by the filing of a petition
for assessment of a civil penalty by the Secretary of Labor
pursuant to Section llO(a) of the Mine Act. After notice to the
partiesu a hearing on the merits was held before me on May 2lu
1987" The parties presented oral and documentary evidence and
submitted the matter for decisionu without exercising their right
to file post-trial briefs.
On January 28, 1986u a MSHA inspector conducted an
inspection of the Santa Margarita Quarry and Mill operated by
Kaiser Sand & Gravel Company at Santa Margarita, San Luis Obispo
Countyu California. As a result of the inspection the mine
inspector issued a citation charging the operator with a signif icant and substantial violation of Title 30 C.F.R. § 56.14001
which requires guarding of tail pulleys.
The respondent filed a timely appeal contesting the
existence of the alleged significant and substantial violation of
the safety standard and the amount of the penalty.

1257

Stipulations
The parties stipulated as follows:
1. Kaiser Sand & Gravel is a large company and operates a
moderate-sized facility. The company has close to a four million
man hours' work per year as a company with about 23,000 man hours
work per year at the facility.
2. Respondent has an average history having had four
violations in the previous two years.
3. Imposition of the penalty will not affect the ability of
respondent to continue in business.
4.

The violations were abated in good faith.
Review of Evidence
and Discussion

Mr. Cowley made the January 28, 1986 inspection of the Santa
Margarita Quarry. He testified that he has been a mine inspector
with MSHA the past 11 years and altogether has had 32 years
mining experience.
In the course of his inspection of the quarry
he observed the tail pulley for the 36 inch wide primary conveyor
belt. In his opinion the tail pulley was not guarded.
The tail pulley was located at ground level not more than a
foot or two high. When the mine inspector first walked up to the
tail pulley he observed a rectangular piece of plywood that
obscured his view of the pulley. The plywood was leaning against
the rectangular opening in the thick concrete structure that
enclosed the tail pulley. He pushed the piece of plywood that
obscured his view of the pulley and it fell over" He testified
that he pushed it to see if it was secured and to get it out of
the way so it no longer obscured his view of the pulley. He
stated that the plywood was not secured in anyway and did not
guard "anything".
On cross examination the mine inspector admitted that he
does not know anything about the plant's operating or lock out
procedures. However if someone were to service a tail pulley of
this type while it was operating he could come in contact with
the tail pulley and if this occurred it could result in a very
serious injury.
The conveyor belt and pulley were operating at the time of
this inspection. The mine inspector testified that he observed
no one in the area of the tail pulley. The machinery is operated
and serviced by one person, the operator, whose shack is located
on a different level above the pulley and some 40 to 50 feet away.
The operator services the machinery the first thing in the
morning before he starts the conveyor belt.

1258

The respondent presented evidence that the tail pulley and
conveyor belt were enclosed in the heavy concrete structure that
formed the base of the crusher, except for the rectangular
opening which exposed the end of the pulley. To eliminate this
exposure a section of plywood was inserted in the frame of the
opening. The plant manager stated that after the conveyor
operated for a while there was a buildup of material that secured
the plywood in place.
It was respondent's position that the tail pulley was
guarded by its concrete enclosure and the plywood until the
inspector pushed or pulled the unsecured plywood from the frame
of the opening in the concrete enclosure.
The plant manager testified that safety is one of the top
priorities at the quarry and it is the practice at that facility
to lock out machinery before any maintenance, servicing or repair
work is performed. The person who performs the work uses his own
lock and keeps the key. They have regular monthly safety
meetings that take care of any safety problems that arise.
The operator presented evidence that the tail pulley had
been guarded by the enclosing concrete structure and the plywood
for the past eleven years. During that time they've had a number
of inspections by various mine inspectors including Mr. Cowley
and no one had complained before as to the manner in which the
tail pulley was guarded, Mr. Cowley admitted that in his prior
inspection of the plant he had not cited this primary conveyor
tail pulley for not having a guard or for having an inadequate
guard.
Respondent near the end of the hearing stated for the record
that he was not contesting the existence of the violation but
vigorously denied that the violation was a significant and substantial violationo
I'm satisfied from the testimony of the mine inspector that
at the time he observed the tail pulley in operation the piece of
plywood <which normally was in place in the frame of the opening
of the concrete enclosure) was on this occasion just leaning up
against the concrete enclosure. I am persuaded that there was a
violation of the guarding requirement but I do not find from the
evidence presented in this case that the violation was signif icant and substantialo
The Review Commission has previously held that a violation
is properly designated significant and substantial "if, based on
the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature."
National Gypsum, 3 FMSHRC at 825. In Mathies Coal Co., 6 FMSHRC
1, 3-4 (January 1984), the Commission explained:

1259

In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary .•. 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 reasqnable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.
The Commission pointed out that the third element of the
Mathies formula "requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result
in an event in which there is an injury." U.S. Steel Mining Co.,
6 FMSHRC 1834 at 1836 (August 1984).
In this case the Secretary has established each of the four
elements in the Mathies formula except No. 3. While it is
possible that the hazard contributed to will result in an event
in which there is an injury this possibility is relatively remote
and under the facts of this case it is found not to be a reasonable likelihood.
This finding is consistent with the fact that the tail
pulley was guarded for 11 years by its concrete enclosure and a
piece of plywood placed in the frame of the opening and there is
no evidence that during this long period of time there was any
problems or injury of any kind. The condition was never cited.
Presumably some of the MSHA inspectors who inspected this
operation over the past eleven years checked to see how the tail
pulley of the primary conveyor was guarded and saw no citable
hazard. While this observation has no weight or value as to the
existence of the violation it is certainly consistent with the
finding that the violation was not a significant and substantial
violationo
It was the Secretaryws position that the negligence was
ordinary negligence and on the basis of the evidence presented I
concur and so find. The gravity of the violation is high with
respect to the seriousness of the injury which could result if
one became caught in the pinch point of the conveyor belt and
pulley but is evaluated as low with respect to the likelihood of
such an accident. I accept the stipulations of the parties with
respect to the remaining statutory criteria set forth in Section
llO(i) of the Mine Act.
Based upon my consideration of the six statutory penalty
criteria in Section llO(i) of the Mine Act I conclude that the
appropriate penalty for this violation is $70.00.
Conclusions of Law
Based upon the entire record and the findings made in the
narrative portion of this decision, the following conclusions of
law are entered:

1260

1.

The Commission has jurisdiction to decide this case.

2.

The respondent violated safety standard 30 C.F.R.

§ 56.14001.

3. The violation was not significant and substantial and
said allegation is stricken from the citation.
4. The citation as amended is affirmed and a civil penalty
of $70.-00 assessed.

ORDER
Accordingly, the citation, as amended, is affirmed and
Kaiser Sand and Gravel Company is ordered to pay a civil penalty
of $70.00 within 30 days of the date of this decision.

Aug t F. Cetti
Administrative Law Judge
Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street, P.O. Box 3495, San Francisco,
CA 94119-3495 (Certified Mail)
0

Kaiser Sand & Gravel Company, Mr. Clair E. Hay, Safety Manager,
Po0o Box 580, Pleasanton, CA
94566 (Certified Mail)

/bls

1261

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

JUL 221987
DISCRIMINATION PROCEEDING

ARNOLD SHARP,
Complainant

.

v.

Docket No. KENT

86~149-D

BARB CD 86-49
BIG ELK CREEK COAL CO., INC.,
Respondent

No. 1 Surface Mine

DECISION
Appearances:

Before:

Arnold Sharp, Bulan, KY, Pro Se;
Stephen C. Cawood, Esq.,
Pineville, KY,
Respondent.

Judge Fauver

Complainant brought this proceeding under § 105(c)(3) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seq., contending that he was discharged because of
safety complaints made to his supervisors. Respondent
contends that he was discharged for reckless driving.
Based upon the hearing evidence and the record as a
wholev I find that a preponderance of the substantial,
reliableu and probative evidence establishes the following~
FINDINGS OF FACT

1. Respondent operates a surface coal mine, known as
No. 1 Surface Mine, in Leslie County, Kentucky, which
produces coal for sale in or affecting interstate commerce.
2.
Complainant had been employed by Respondent 0 s
predecessorv Bledsoe Coal Company 1 at the same coal mine for
about one and one-half years when the mine was taken over by
Respondent, in April, 19850 Complainant began working for
Respondent thenu and worked as a rock truck driver and at
times as an auger helper or operator until he was discharged
on May 2 8, 19 86.

1262

3. From April, 1985, until February, 1986,
Complainant's immediate supervisor was M.C. Couch. From
February, 1986, until his discharge in May, 1986, his
immediate supervisor was M. Cornett.
4. Around September, 1985, Respondent purchased an
auger and assigned Complainant to be a helper on it.
Complainant made many safety complaints to Couch and later to
Cornett about the auger, including excessive oil leakage,
accumulations of loose coal and a broken or damaged platform.
Many times he asked Respondent to have the auger repaired and
made safe, but Respondent did not have it repaired and
continued assigning Complainant to work on the auger.
Complainant also complained to his supervisors about
inoperable front horns and inoperable backup alarms on
trucks.
5. For a period, Respondent shut down the
auger. Complainant drove a rock truck when the auger was
shut down.
6. In February, 1986, M.C. Cornett became Complainant's
immediate supervisor, and Couch became a mine supervisor
above Cornett.
7. Around March, 1986, Respondent started operating the
auger again, and Cornett ordered Complainant to work on the
auger. Complainant complained about the auger, telling
Cornett that he would not work on the auger until it was
repaired .and made safe to operate. However, Cornett
ordered Complainant to work on the auger and Complainant did
soo On one occasion, Cornett instructed Complainant to come
in on Sunday, April 27f 1986 8 to work on the auger. When
Complainant told him he did not want to work on the auger
until it was repaired, Cornett told Complainant to work on
the auger as instructed or he would be fired. Again,
Complainant worked on the auger.
80 On May 28, 1986, Complainant was driving rock truck
No. 437 and Willard Miller was driving rock truck No. 438.
Miller had just dumped a load of rocks, and was leaving the
dumping area. Complainant's truck was loaded, and he drove
up to a "switchback" area where loaded trucks would stop and
then back up to the dumping site. As Miller was driving
downhill from the dumping area and as Complainant was backing
uphill onto the dumping area road, the trucks collided.
Neither truck had an operable front horn or operable back-up
alarm. The accident probably could have been prevented if
the trucks had these safety devices. Complainant looked in
both of his side view mirrors before he backed up, but did

1263

not see Miller's truck in either of them b~cause of the angle
at which the trucks were approaching each other. If Miller
had been able to blow his front horn, it is likely that the
accident would have been prevented.
9. Supervisor Cornett arrived on.the scene after the
accident, on May 28, 1986. Supervisor Couch arrived later.
They summarily blamed Complainant for the accident, and
discharged him on that date.
10. On June 17, 1986, after evaluating the representations made by Respondent and the Complainant, the Kentucky
Division of Unemployment Insurance rejected Respondent's
contention that Complainant had been discharged for cause. It
found that: "There is a lack of evidence to show that the
accident was intentional or that misconduct was involved.
Therefore, the separation is non-disqualifying." (Exh. C-34.)
11. On August 26, 1986, the Mine Safety and Health
Administration, United States Department of Labor, informed
complainant that its investigation of his complaint of a
discriminatory discharge did not indicate a violation
of § 105(c) of the Act. Complainant then filed the subject
proceeding before this independent Commission, for a de novo
hearing and adjudication of his claim of discrimination.~~
DISCUSSION WITH FURTHER FINDINGS
A miner may establish a prima facie case of discrimination -under§ 105(c) of the Act 1/ by proving that Cl) he
was engaged in a protected activity and ( 2) the adve'rse
action complained of was motivated in any part by that
activityo The operator may rebut the orima facie case by
showing either that no protected activity occurred or that
the adverse action was not motivated in any part by the
protected activity. Smith v. Reco, Inc., 9 FMSHRC 992
(June 30, 1987).

ll Section 105(c)(l) of the Act provides in part: "No
person shall discharge or in any manner discriminate against
or cause to be discharged or cause discrimination against or
otherwise interfere with the exercise of the statutory rights
of any miner ..• in any coal or other mine subject to this Act
because such miner •.. has filed or made a complaint under or
related to this Act, including a complaint notifying the
operator or the operator's agent .•• of an alleged danger or
safety or health violation in a coal or other mine ••• or
because of the exercise by such miner ••• of any statutory
right afforded by this Act."

1264

If the operator cannot rebut the prima facie case in
this manner, it may nevertheless defend affirmatively by
proving that (1) it also was motivated by the miner's
unprotected activity, and (2) it would have taken the adverse
action in any event for the unprotected activity alone. The
operator bears the burden of proof with regard to the
affirmative defense. Haro v. Magma Copper Co., 4 FMSHRC 1935
(1982). The ultimate burden of persuasion does not shift
from the complainant. Donovan v. Stafford Construction Co.,
732 F.2d 954 (D.C. Cir 1984)~ Boich v. FMSHRC, 719 F.2d 194
(6th Cir. 1983). The Supreme Court has approved the National
Labor Relations Board's virtually identical analysis for
discrimination cases arising under the National Labor
Rela.tions Act. NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
Complainant proved that he was engaged in protected
activity, i.e., making safety complaints about the condition
of the auger and the trucks. He complained to.Couch a number
of times, and he complained to Cornett when Cornett replaced
couch as his immediate supervisor. His safety complaints
included excessive oil on the auger, accumulations of coal on
the auger, a broken or damaged platform on the auger and
inoperable front horns and inoperable backup alarms on trucks.
He also voiced safety complaints to fellow workers.
Respondent contends that Complainant had a number of
prior accidents at the mine and that the accident on May 28,
1986, was the final cause for discharging him, because of
~reckless driving, and that this was the sole cause for his
discharge.
It denies any motivation to discharge him because
of his safety complaints.
The evidence is in conflict as to prior accidents
involving Complainanto Complainant called the former
superintendent of Bledsoe Coal Company, Vernon Muncy, as a
witness. Muncy testified that he saw Complainant practically
every day on the job and that his work record was good while
employed at Bledsoeo
Respondent 0 s supervisor Couch testified that Complainant
had several prior accidents at the mine, as follows:
(1)
In the first month Complainant worked for Couch,
Complainant backed a truck partly over a berm on the edge of
the dumping area. One set of the rear wheels went over the
berm, and that side of the truck rolled backward partly down
the slope. Couch testified that backing over the berm was
dangerous, because ·the truck could have turned over.

1265

(2) In a later incident, Complainant backed into a high
wall, damaging a railing and side mirror on his truck.
(3)
In February, 1986, the last day that he worked
directly under Couch, Complainant, at the end of the work
day, jammed his truck into a narrow opening in an effort to
get to the parking lot quickly and get away from the mine.

Respondent's foreman Cornett testified that he had
worked for Bledsoe Coal Company as a supervisor and that
Complainant had worked for him there for about a year and a
half, and beginning in February, 1986, Cornett was his
supervisor at Respondent's mine until Complainant's discharge
on May 28, 1986.
Cornett testified that Complainant had a number of prior
accidents at the Bledsoe Company: Once, nearly backing into
a sweeping machine, and "various accidents backing into
dozers" (Tr. 85). Cornett also described the accident at
Respondent's mine that Couch described, contending that
Complainant backed a truck partly over a berm in the dumping
area.
William Bolling testified, as Respondent's witness, that
he was a blaster and an equipment operator, first for Bledsoe
Coal Company and then for Respondent. He first met
Complainant when Complainant started working for Bledsoe Coal
Company in December, 1983, or early 1984. They worked
togethe~ for Respondent until Complainant was discharged.
He
described two accidents that occurred when they had worked
for Bledsoe Coal Company: (1) Complainant backed a rock truck
into a bulldozer Bolling was operatingr causing some damage
to the rock truck (cutting the tire and bending the rim of
the truck) and (2) Complainantus truck bumped into a
bulldozer Bolling was operatingr without causing any damageo
Bolling also testified that he saw Complainant back up too
close to a bulldozer and the buldozer operator had to drive
out of his way to avoid being hito
Couchf Cornettv and Bolling testified that Complainant
had a reputation at the mine of being an unsa
drivero
Complainant testified that the accident with Bolling
involving the cut truck tire was at night and was caused by
Bolling not having his lights ono He denied the other
accidents mentioned by Bolling. He testified that the "berm"
accident was due to Respondent's failure to build adequate
berms.
I credit Complainant's testimony on the subject of
prior accidents and the accident on May 28, 1986.
The kinds of prior accidents attributed to Complainant
by Respondent's witnesses were not unusual for this

operator's employees. Respondent's trucks often operated
without operable horns and back-up alarms and at times
1266

equipment operated without adequate brakes or safety lights;
rock blasting at times was too close to personnel or
equipment; at times personnel were permitted too near, or
approached too near, a high wall that was dangerous and could
fall and fatally injure employees; the auger was often
kept in an unsafe condition. Various employees were involved
in accidents for which they were not disciplined by
Respondent or by its predecessor. Nor did Respondent or its
predecessor discipline Complainant for any accidents before
May 28, 1986. On that date~ Respondent decided to fire
Complainant without conducting a reasonable investigation of
the accident. When Cornett came upon the scene, he briefly
talked to Miller and Complainant, looked at the damage to
Miller's truck and hastily determined that Complainant was at
fault.
Soon after that, Couch arrived, and Couch and Cornett
had a brief discussion and decided that Complainant should be
dismissed. If they had viewed the accident without an animus
toward Complainant, they would have considered the effect of
the safety defects on the trucks as a major contributing
cause of the accident, i.e., the failure to provide an
operable front horn on Miller's truck and an operable back-up
alarm on Complainant's truck. The same truck operated by
Miller had been turned over and substantially damaged in an
accident on May 9, 1986, involving a different driver, but
there is no evidence that disciplinary action was taken
against that driver, nor is there an explanation of that
accident in relation to driver fault or safety equipment.
Earlier, Couch had threatened to fire Complainant if he
continued to complain to other employees about his
objections concerning the condition of the auger. Cornett
was also upset with Complainant because of Complainant's
safety complaints about the auger (as late as April 27, 1986)
and his resistance to working on the auger when ordered to do
SOo

Couch and Cornett had not heeded Complainant's safety
complaints about safety defects on the trucks. Had they
checked the horns and backup alarms on the trucks involved in
the accident on May 28p 1986, they would have found tha~ to
be inoperableo With such a finding, they could not
reasonably attribute fault to either driver, but to their own
failure to have the safety standard for horns and backup
alarms complied withe Their summary action in blaming
Complainant for the accident without checking the safety
equipment on the trucks indicates a discriminatory motive
toward Complaint.
For all of the above reasons, I find that Couch and
Cornett were motivated at least in part by Complainant's
safety complaints in their decision to fire him. The

1267

evidence presented by Respondent does not·preponderate to
show that in the absence of Complainant's safety complaints
Respondent would have discharged Complainant for the accident
on May 28, 1986.
Complainant is therefore entitled to
relief under· § 105 (c) of the Act.
CONCLUSIONS OF LAW

1.

The Commission has jurisdiction in this proceeding.

2. Respondent violated§ 105(c)(l) of the Act by its
discriminatory discharge of Complainant on May 28, 1986.

3. Complainant is entitled to an order requiring
Respondent:
Cl) to reinstate him in Respondent's employment
in the same position, and with the same pay rate, status and
all other benefits, as he would have attained therein had he
not been discharged on May 28, 1986, (2) to pay him back pay
and interest for all compensation he would have earned in
Respondent's employment had he not been discharged on May 28,
1986, and (3) to reimburse him for costs and expenses
reasonably incurred by him in connection with the institution
and prosecution of this proceeding, including a reasonable
attorney's fee if an attorney is engaged for the remainder of
this proceeding including a procedure for proposing a relief
order and any review or appeal processes.
ORDER
WHEREFORE IT IS ORDERED that:
lo The parties shall confer, within 15 days of this
Decisionp in an effort to stipulate the amount of
Complainant 1 s back pay and interestu costs and expenses, and
the positionv pay ratev status and employee benefits to which
Complainant is entitled to be reinstated in Respondent's
employment. Interest shall be computed in accordance with
the Commission's decision in Arkansas Carbona, 5 FMSHRC 2042
(1984) (copy to be distributed to each party)"
2o Within five days after their conference, the parties
shall file a report with the Judge, submitting either a joint
proposed order for relief or a statement of the issues
between the parties respecting the relief to be granted.
Respondent's stipulation of the terms of a relief order will
not prejudice its rights to seek review of this Decision.

1268

3. This Decision shall not be made final until a
Supplemental Decision on Relief is entered herein.

I .J · i I · ' ~tMAvY'\.
~mla~ver

Administrative Law Judge

Distribution:
Mr; Arnold Sharp, General Delivery, Bulan, KY 41722
(Certified Mail)
Stephen C. Cawood, Esq., Cawood and Fowles, P.O. Drawer 280,
Pineville, KY 40977 (Certified Mail>
kg

1269

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

July 23, 1987
CONTEST PROCEEDING

RUSHTON MINING COMPANY,
Contestant

Docket No. PENN 85-253-R
Order No. 2403926; 6/11/85

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

Rushton Mine

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 86-1
A. C. No. 36-00856-03548

v.

Rushton Mine

RUSHTON MINING COMPANY,
Respondent
DECISION ON REMAND
Before:

Judge Broderick

STATEMENT OF THE PROCEEDING
By order issued March 30, 1987, the Commission remanded
this case to me to rule on an issue raised by Rushton Mining
Company (Rushton) in a Petition for Discretionary Review,
whic!-1 issue had not been presented .to me before my decision
which was i~sued February 20, 1987.
The issue is whether
Rushton is entitled to reimbursement from the Secretarv for
costs and attorney fees incurred in connection with the proceeding involving Order No. 2403926.
The parties have stated
in response to my order issued April 15, 1987, that they do
not wish to submit further evidence on the issue presented.
Each party has filed a legal brief addressing the issue.
FACTUAL BACKGROUND
Rushton filed a notice of contest on July 3, 1985, contesting Order 2403926 issued under section 104(d) (1) of the
Act.
The order alleged a violation of 30 C.F.R. § 75.326.
At the request of contestant, the proceeding was continued
by order issued December 23, 1985, pending the filing of the

1270

related civil penalty case.
On November 21, 1985, the Secretary filed a Petition for the Assessment of Civil Penalties
seeking penalties for 5 alleged safety violations including
the violation charged in Order 2403926.
A penalty of $1,100
was sought for that violation.
The penalty case was assigned
to me on June 27, 1986.
I consolidated the cases (and other
contest cases) by order issued July 10, 1986, and issued a
prehearing order the same.day.
The Secretary responded on
August 13, 1986, and Rushton on November 6, 1986.
Rushton's
response included copies of a settlement motion and order and
a vacated citation in other cases involving alleged violations of 30 C.F.R. § 75.326.
Pursuant to notice issued August 21, 1986, the proceeding was called for hearing in Pittsburgh, Pennsylvania, on
November 6, 1986, at 9:00 a.m.
The hearing was concluded the
same day at 4:25 p.m.
At the commencement of the hearing,
one of the contested violations was settled, and the related
contest proceeding was dismissed.
Testimony was taken on the
4 remaining violations.
With respect to the violation charged
in Order 2403926, Inspector Klemick testified for the Secretary (Tr. pages 126-167).
Raymond Roeder testified for Rushton (Tr. pages 169-197).
I directed that posthearing briefs
limited to the issue of whether statements made by MSHA personnel at MSHA Manager's Conference should have been admitted.
The briefs were to be filed on or before December 29, 1986.
I later extended the briefing time to January 16, 1987.
Rushton's brief was submitted January 29, 1987.
On February 5,
1987, the Secretary filed a motion to withdraw the petition
for a civil penalty based on Order 2403926, "which should be
vacated."
Respondent did not object to the Secretary's
motion.
On February 20, 1987, I issued my decision, including my
ruling granting the motion to withdraw the petition insofar
as i t was based on Order 2403926, vacating the order and dismissing the contest proceeding.
Rushton filed a Petition for
Discretionary Revi2w with the Commission limited to the issues
whether i t is entitled to reimbursement of costs and fees under Rule 11, and-whether the facts of this case support such
reimbursement.
The Commission remanded the case to me.
ISSUES

1. Whether a mine operator is entitled to reimbursement
from the Secretary for costs and attorney's fees under Rule
11 of the Federal rules of Civil Procedure (FRCP).
2.
If so, whether the facts in this case support such
reimbursement.

1271

CONCLUSIONS OF LAW
I.
§

DOES RULE 11 APPLY

The Commission's Procedural Rules provide in 29 C.F.R.
2700.l(b):
On any procedural question not regulated by
the Act, these procedural rules, or the
Administrative Procedure Act (particularly
5 u.s.c. 554 and 556), the Commission or any
Judge shall be guided so far as practicable
by any pertinent provisions of the Federal
Rules of Civil Procedure as appropriate.

The Mine Act does not deal with reimbursement of costs
and attorney's fees in connection with contest or civil penalty proceedings.
The Administrative Procedure .Act (APA) refers
to litigation costs and attorney's fees only in connection
with proceedings under the Freedom of Information Act (5 U.S.C.
§ 552(a) (4) (E)), the Privacy Act {5 u.s.c. § 552a(g) (1) (3) (B),
and the Government In the Sunshine Act (5 U.S.C. § 552b(i).
There are no references to costs and attorney's fees in sections 554, 555, 556, 557, or 558 of the APA.
Commission Procedural Rule 6

(29 C.F.R. § 2700.6)

states:

When a person who appears in a representative
capacity signs a document, his signature
shall constitute his certificate
(a) that . . . he is authorized
and qualif
• . . to represent
the particular party in the
matter;
(b) that he has read the document; that to the best of his
knowledge, information, and
belief, there is good ground
to support it; and that it is
not interposed for delay.
Commission Procedural Rule 80 (29 C.F.R. § 2700.80)
deals with standards of conduct required of individuals
practicing before the Commission (they "shall conform to the
standards of ethical conduct required of practitioners in
the courts of the United States"), and sanctions for unethical or unprofessional conduct {disciplinary proceedings and
"an appropriate disciplinary order, which may include reprimand, suspension or disbarment from practice before the Commission").
The sanct~ons do not include an order assessing
costs or attorney's fees.

1272

Rule 11 of the FRCP requires that pleadings and other
paper of a party represented by counsel be signed by counsel.
It further provides:
The signature of an attorney or party constitutes
a certificate by him that he has read the. . .
paper; that to the best of his knowledge, information and belief formed after reasonable inquiry
it is well grounded in fact and is warranted by
existing law or a good faith argument for the extension, modification, or reversal of existing
law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of
litigation.
The rule provides that the court shall impose "an appropriate sanction" upon the person who signed a document in
violation of the
or the represented party or bo~h, which
sanction may include an order to pay the other party's expenses incurred because of the filing.
Commission Rule 6 was obviously modeled after Rule 11
of the FRCP except that i t does not provide for a sanction
when the rule is
sregarded.
A sanction is provided, however, in Rule 80.
Therefore, I conclude that the "procedural question" raised here (sanctions for filing a document
which to the best of the knowledge, information or belief of
the signer does not have good grounds to support it) is
"~egulated" by the Commission Procedural Rules:
Rule 6 and
Rule 80.
The fact that the sanctions provided do not include
the sanction sought here (whether because the Commission had
questions about its authority to impose costs and attorney's
fees or because it decided as a matter of policy not to impose such sanctions), it is clear that the regulations
with the question.
Therefore, under Commission Rule 1, it
is unnecessctry to look to the Federal Rules of Civil Procedure for guidance.
II.

RULE 11

Assuming the applicability of Rule 11 FRCP as a guide,
do the facts of this case justify the imposition of costs
and attorney 1 s
against the Secretary?
Rule 11, as I stated earlier, provides that a court
may impose sanctions, including costs and attorney's fees,
on a person who signs a pleading or other paper unless to
the best of his knowledge and belief
is well grounded in
fact and warranted by existing law or a good faith argument
for the extension, modification, or reversal of existing

1273

law. After the rule was amended in 1983, it became unnecessary to find subjective bad faith to impose sanctions under
the Rule.
Zaldivar v. City of Los Angeles, 780 F.2d 823
(9th Cir. 1986); Rodgers v. Lincoln Towing Service, Inc.,
771 F.2d 194 (7th Cir. 1985); Westmoreland v. CBS, Inc., 770
F.2d 1168 (D.C. Cir. 1985); Weisman v. Rivlin, 598 F. Supp.
724 (D.D.C. 1984). Nevertheless, like all rules which permit
or mandate the assessment of costs for abuse of process, the
rationale "is punitive rather than promotional or enabling.
[Its] purpose is to punish and deter certain specific and, as
a rule, narrowly defined forms of procedural abuse." I
DERFNER & WOLF, COURT AWARDED ATTORNEY FEES, § 5.03[11].
Rushton's brief assumes that it is self-evident, or at
evident from the record made
this case, that the
Secretary's Answer in the contest case and his Petition in
the penalty case did not meet the requirements of Rule 11
that the papers filed were to the best of the knowledge, information and beli
of the attorneys filing them well
grounded in fact and warranted by existing law or a good
faith argument for the extension, modification or reversal
of existing law. But there was no adjudication on the merits
of the issues raised.
Indeed, there were no legal briefs
filed addressed to the propriety of the order involved here.
So far as I am aware, there is no Commission or Administrative Law Judge decision on the merits of the issue raised
concerning this order.
Therefore the record before me is
limited to the testimony and exhibits addressed to the order
and its propriety, and the fact that after hearing, the
Secretary moved to withdraw the penalty petition as related
to the order and to vacate the order.
Rushton did not object to the motion and it was granted.
It would be presumptuous in the extreme on the basis of such a record to conclude that the documents in question were
led by o
cers
of the court without the belief that they were well grounded
in fact and warranted by law.
I don't know and the record
does not show what inquiry was made prior to the
ling of
the documents and, absent an adjudication on the merits,
there is no way I could determine whether they were well
grounded in
and warranted by law. Therefore, even if
Rule 11
ied to Conunission proceedings, I would conclude
that this record
s not show that it was violated.
ORDER
Based upon the above findings of fact and conclusions
of law, IT IS ORDERED that Rushton's request for an award of

1274

litigation expenses as a sanction under Rule 11, Federal
Rules of Civil Procedure, IS DENIED.

~i i'tu~s _M:-z.'c&'!:/l {_~L

j

....

James A. Broderick
Administrative Law Judge

Distribution:
Joseph T. Kosek, Jr., Esq., Rushton Mining Co., Box 367,
Ebensburg, PA 15931 (Certified Mail)
Linda M. Henry, Esq., Office of the Solicitor, U. S. Department of Labor, 3535 Market St., Philadelphia, PA 19104
(certified Mail)

1275

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

JUL 2 31987
LOCAL UNION 2274, DISTRICT 28,
UNITED MINE WORKERS OF AMERICA
(UMWA)
Complainant

v.

COMPENSATION PROCEEDING

..

Docket No. VA 83-55-C
McClure No. l Mine

CLINCHFIELD COAL COMPANY,
Respondent
DECISION
Before:

Judge Gary Melick

This case is before me on remand from the Commission
to determine whether certain allegations of violations cited in a
section 104(d)(l) citation and three section 104Cd)(l) withdrawal
orders provide the required nexus between the section 107(a)
imminent danger withdrawal order at bar and an underlying
violation of a mandatory standard.l/ The Commission further
directed that if such a relationshTp is found to exist then
appropriate action should be taken to identify affected miners
and determine the amount of compensation due each min~r.

!/Statutory references herein are to the Federal Mine Safety
and Health .Act of 1977v 30 u.s.c. § 801 et.~, the "Act". The
remand order was based upon the Commission 1 s decision in Local
Union 1889v District 17, UMWA v. Westmoreland Coal Company, 8
FMSHRC 1317 {1986)f that a section 107(a) orderf whether as
issued or subsequently modified, need not itself allege a
violation of a mandatory standard in order to trigger entitlement
to the one-week compensation provisions under Section 111 of the
Acto The Commission also concluded therein that allegations of
violations subsequently cited may supply the required nexus under
section 111 between the section 107(a) imminent danger order and
an underlying violation of a mandatory standard.

1276

In this case the UMWA seeks one-week compensation pursuant
to section 111 of the Act for certain miners employed by the
Clinchfield Coal Company (Clinchfield) as of June 23, 1983.2/ In
conjunction with the motion for summary decision now before-me
the parties stipulated that "a causal nexus existed between the
107(a) order issued to Clinchfield's McClure No. 1 Mine on June
23, 1983, and a violation of a mandatory standard in the McClure
No. 1 Mine." The parties also stipulated to a list of miners on
whose behalf the UMWA was seeking compensation, their rates of
pay as of June 23, 1983, and the amount of compensation sought on;
behalf of each of those miners.
As stated in the UMWA motion, the compensation claim at bar
arose following an underground explosion at the McClure No. 1
Mine on June 21, 1983. Subsequently at 4:00 a.m. on June 22,
1983, the Federal Mine Safety and Health Administration CMSHA)
issued a Section l07(a) "imminent danger" withdrawal order
covering the entire mine. The motion further states that on
March 26, 1984, MSHA issued one section 104Cd>Ci> citation and
four section 104(d){l) withdrawal orders, of which three alleged
that the cited violations had resulted in a methane ignition
which caused the explosion. Clinchfield did not contest the
citations or orders ~nd paid the civil penalties assessed by MHSA.
On September 30, 1983, the UMWA filed this claim for one-week
compensation under section 111 of the Act.
In its opposition to the motion for summary decision
Clinchfield argues that the prerequisites for awarding the
one-week compensation under section 111 of the Act have not been
met. Clinchf ield argues that the ininers were not "idled by" an
order issued "for a failure for the operator to comply with any
mandatory health or safety standards" as that section requires.
Clinchfield observes that this argument has been rejected by the
Commission in the September 26v 1986, decision (8 FMSHRC 1310)
remanding this.case for the instant proceedings but submits the
argument to preserve its appeal rights"
. ~/Section Ill provides, as relevant hereto, as follows~
If a coal or other mine or area of such mine {s closed by an
order issued under section 104 or section 107 of this title for a
failure of the operator to comply with any mandatory health or
safety standards, all miners who are idled due to such order
shall be fully compensated after all interested parties are given
an opportunity for a public hearing, which shall be expedited in
such cases, and after such order is final, by the operator for
lost time at their regular rates of pay for such time as the
miners are idled by such closing, or for one week, whichever is
the lesser.

1277

Indeed it is clear that Clinchfield's argument has been
rejected by the Commission and within the framework of the
stipulations presented herein it is established that the miners
at issue were in fact "idled by" an order issued "for a failure
of the operator to comply with any mandatory health or safety
standard" as required by section 111. The UMWA Motion for
Summary Decision is therefore granted. Commission Rule 64, 29
C.F.R. § 2700.64. The miners are accordingly entitled to
one-week compensation under that section 111 of the Act.
The UMWA is also seeking interest on the compensation
awarded in these proceedings dating from July 13, 1983. The
award of interest is indeed consistent with the decisions of this
Commission and the purposes of section 111 of the Act. It is
accordingly awarded in this case. Mine Workers, Local 5869 v.
Youngstown Mine Corporation, 1 FMSHRC 990 (1979): Peabody Coal
Company v. Mine Workers, 1 FMSHRC 1785 (1979). Such interest
shall be calculated in accordance with the formula set forth by
the Commission in Bailey v. Arkansas-Carbona Company and Walker,
5 FMSHRC 2042 (1983). While the UMWA points out that the
National Labor Relations Board has recently adopted a revised
procedure for computing interest on back pay awards in light of
the Tax Reform Act of 1986 (see New Horizons for the Retarded,
Inc., 283 NLRB No. 181, (May 28, 1987) this Commission has not
adopted the revised formula. The UMWA request for costs and
attorneys fees is denied. Aleyeska Pieline Service co. v. The
Wilderness Society et al., 421 U.S. 240 (1975).
ORDER
Clinchf ield Coal Company is hereby directed to pay the
following miners the noted compensation plus interest from
July l3p 1983p in accordance with the formula set forth in
v. Arkansas-Carbona Company and Walkerp 5 FMSHRC

-:::-=-...,.-.,,--::--::.-... - )

g

(8:00 a.m. - 4:00 p.m. Shift)
Miner

Vi
1 Lee Fuller
Garneth Duty
Jerry Martin
Homer Gouge
Darr
Jo Mccowan
Jer
Ao Hibbitts
Billy J. Coffey
Millard Harris
Danny McConnell

Compensation
$505.70
505.70
536.60
536.60
496.80
505.70
491.60
505.70
491.60

.l278

Edward M. Miller
Roger D. Austin
Kenneth Stacy
Sherman Matney
Sammy M. Smith
Randy Beverly
James R. Stevens
Edgar B. Moore
Bobby Murphy
Ollie Stanley
Junior Rainwater
Richard H. Baker
Joseph A. Counts
Robert L. Seitz
David R. Fuller
Jimmy L. Honaker
Harold B. Honaker
Nancy E. Mullins
H.D. Vencil
Dewey E. Stanley
Carrol Rasnick
James W. Mullins
Jerry W. Owens
Ronald M. Mann
Kemper Hill, Jr.
Garnice Hill
George P. Willis
Gaye N. Little
Demus A. Stanley
Roger L. Bentley
Kenneth L. Fleming
Ronald L. Welch
Randall L. Campell
C.E. Edwards
Fred Allen Mullins
Bobby A. Wampler
Billy B. Rose
Willis D. Rasnake
Larry G. Woods
Forgy Ray Pennell
Lowell Bise
Randy Smith
Billy G. Mullins
Marquis R. Neece
Michael w. Blackson
Jerry Deel
J.C. Vance
James c. Stanley
Michael D. Rose
John B. Yates

536.60
536.60
536.60
499.90
505.70
491.60
536.60
493.90
536.60
536.60
506.60
506.60
536.60
505.70
493.90
536.60
493.90
505.70
491.60
499.45
499.90
493.90
536.60
493.90
493.90
536.60
536.60
499.90
517.70
499.90
499.90
505.70
493.90
493.90
505.70
476.90
496.80
536.60
536.60
493.90
536.80
505.70
536.80
493.90
536.60
505.70
493.90
536.60
505.70
505.70

1279

Danny Hughes
Clint J. Owens
Jim W. O'Quin
Trinkle L. O'Quin
Ron J. Baker
Raymond K. Breeding
Paul Owens
Gary Souleyrette
Wally V. Kennedy
Olaf D. Kennedy
Donald Duncan
Michael R. Kennedy
William c. Bolling
Michael J. Rasnick
Richard w. Hughes
Rodney A. Shortt
Steve L. Hale
Lee Vern O'Quinn
William Fletcher
Samuel J. Clay
Bobby L. Sykes
James D. Meade
Jack D. Yates
Randall.C. Hamilton
Clifford D. Boyd
Don B. Hall
Paris Collins
Randy Wireman
Bascome H. Taylor
Claude Turner, Jr.
Earl B. Willis
Larry D. Boyd
George H. Owens
Mark Kennedy
Hobert TaylorvJro
John K. Brooks
Raymond E. Sykes
Barry M. Hall
George Po Thomas
Norman Lewis

493.90
493.90
487.70
505.70
536.60
536.60
493.90
493.90
536.60
536.60
536.60
462.45
505.70
493.90
536.60
548.60
496.80
505.70
505.70
321.66
505.70
505.70
491.60
491.60
505.70
536.60
536.60
536.60
496.80
536.60
493.90
536.60
548.60
516.25
552090
493.90
536.60
536.60
477.15
542.60

Miner

Compensation

(4~00

Porn. Midnight Shift)

Lois Bowman
Joseph Brummett
Gregory Austin
Ardie E. Phillips
Teddy Tiller

$505.90
505.90
548.60
548.60
548.60

1280

Robert N. Phipps
Freddie J. Fultz
Lee O. Ratliff
Danny C. Edwards
Ricky L. Austin
Avery Boyd
Michael James
Joe Kiser
Danny R. Mullins
Davids. Yates
Walter A. Deel
Paul v. Payne
Donald Williams
William C. Jackson
Henry Larry Phipps
David L. Stanley
Gary Lee Moore
Lonny F. Deel
Earnest E. McCoy
Darrell W. Thomas
Thelma Deel
Dennis Wagner
Len vi
Mullins
Randy Breeding
John Mullins
Everette Miles
Kemper Damron
Earl Turner
.James Stapleton
Gallie Greene, Jr.
Evelyn Delaney
James A. Stanleyu Jr.
Mi
Lane
James W. Hamilton
Ao Paul Blevins
Urban Bartley
Ronnie Brown
Kellis c. Barton
Kile Spangler
Robert M. Dixon
Danny L. Chaff in
Sarah w. Rose
Curtis W. Franks
Jim R. Mullins
Tim Ruff
Jason E. McKinney
Jerry L. Jenkins
Steve J. Hamilton
Greg S. Flaming
Jim R. Hearl

517.70
505.90
548.60
505.90
517.70
505.90
517.70
517.70
517.70
517.70
548.60
548.60
517.70
505.90
548.60
548.60
548.60
548.60
548.60
478.80
517.70
548.60
517.70
548.60
548.60
517.70
548.60
548.60
505.90
505.90
517.70
548.60
548.60
508.80
517.70
508.80
505.90
548.60
548.60
548.60
508.80
517.70
548.60
219.44
517.70
548.60
508.80
517.70
517.70
548.60

1281

Bob J. Martin
James E. Holbrook
James Wagner
Abraham P. Stevens
Victor Wallace
Randy D. Lane
Wade P. Mullins
Herbert Johnson
William R. Johnson
Miner

505.90
548.60
548.60
548.60
548.60
548.60
548.60
517.70
505.90
Compensation

(Midnight - 8:00 a.m. shift)
Fred A. Counts
William F. Hartsock
Larry L. Fields
Jerry L. Phillips
Timothy Jennings
Greg Phi ips
Glen Meade
Don C. Bush
Joseph B. Stanley
Margaret J. Mullins
Charles Musick
Dan Honaker
Laurence Skidmore
Bill v. Brooks
Felix J. Boyd
Earl Castle, Jr.
Dan R. Musick
Carter Harrison
David
lmer
Lisa Dingus
Charlene
1
Sue Ellen Fleming
Oliver B. Rasnake
Harold D. Stevens
Marvin E. Counts
Gary L. Stallard
Gary N. Mullins
Leonard Taylor 1 Jr.
Steve Viers
Ron G. McReynolds
Ron D.
Maynard F. Heaton
Walter L. Browning
James Gray Puckett
Thermon H. Powers
Jim D. Sexton

552.60
509.90
509.90
509.90
527.60
509.90
552.60
512.80
552.60
509.90
552.60
552.60
509.90
552.60
509.90
249.21
509.90
552.60
552.60
552.60
552.60
520.00
552.60
520.00
512.60
552.60
552.60
509.90
520.00
552.60
552.60
552.60
552.60
512.80
509.90
512.80

1282

Ernie J. Meade
Robert E. O'Quinn
Robert c. Bailey
Clyde Harris
David L. Stanley
Bob D. Wolfe
H. Fayne Rasnick
Bill R. Robinson
James Turner
Jeff H. Greear
Ted R. Smith
Tony P. Owens
Joe F. Harrison
Jiles R. Branham
Lacy P. Couch
Jerry D. Childress
Irene J. Castle
Anthony Lynch
Darrell Perkins
Lawrence Carico
Charles R. Senter
Ramey Presley
Sam W. C. Hughes
Harold R. Hall
Gleason R. Austin
Bill R. Jessee
Bill G. Large
William w. Carty
Walter R. Owens
James S. Johnson
R.R. Trent, Jr.
Ron Go Arney
William Ao Patton
Paul Vo Kennedy
Dennis Steffey
Dennis King
·
Harless Mullins
George J. Hughes
Jim Edwards
Wiley R. Compton
Charles L. Ventre
Richard Neilson
John Hobson
Harry T. Mullins
G.C. Rasnick
Glen Fo Gillenwater
Bobby Hawkins
Benny Vance
David W. Lee
Joe Tate

515.90
552.60
509.90
509.90
203.96
509.90
552.60
552.60
552.60
552.60
512.80
552.60
552.60
552.60
552.60
527.60
509.90
509.90
521.60
552.60
509.90
506.70
516.32
516.32
550.56
534.56
534.56
524.80
524.80
524.80
524.80
524.80
524.80
534056
550.56
536.80
534.56
536.80
536.80
536.80
536.80
550.56
536.80
536.80
536.80
536.80
536.80
536.80
550.56
550.56

1283

'

Ben Collins
Hermon Brooks
Jim Martin
Bill West
William E. Lester
Harold A. Vanover
Barbara A. Artrip

550.56
550.56
550.56
524.80
510.00
534.56
510.28

L w Judge
Distribution:
John T. Scott, Esq., and Timothy Biddle, Esq., Crowell & Moring,
1001 Pennsylvania Ave., NW, Washington, DC 20004-2505 (Certified
Mail)
Earl R. Pfeffer, Esq., UMWA, 900 15th St. NW, Washington, DC
20005 (Certified Mail)
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Cer,tified
Mail)
nt

1284

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

22041

JUL 2 4 1987
DISCRIMINATION PROCEEDING

WILLIAM C. FANKHAUSER,
Complainant
·

v.

Docket No. LAKE 87-33-D
MORG CD 87-04

GEX HARDY, INC.,
Respondent

ORDER OF DISMISSAL
Before: Judge Melick
The Complainant William Fankhauser, requests. to withdraw his
Complaint in the captioned case after conferring with an attorney
and "due to the fact that there were no incidents involving any
safety or health violations". Under the circumstances herein,
permission to withdraw is granted.
29 C.F.R. § 270 .11. This
case is therefore dismissed and the hearing previo · ly schedul
is cancelled.
}
,.

il-/

I

dary Mel· ck
Administ ative

udge

Distribution~

Mro William Co Fankhauserv Po Oo Box 6,
(Certified Mail)
~

undee, OH

GEX Hardyv Inc.v Box 408v Flushing, OH

43977 (Certified Mail)

nt

1285

44624

I

I

I

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

July 28, 1987

CIVIL PENALTY PROCEEDING

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

Docket No. CENT 87-2-M

A. C. No. 29-00159-05516

Tyrone Mine & Mill

v.

PHELPS DODGE CORPORATIONTYRONE BRANCH,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

This is a civil penalty proceeding arisirig under the Federal
Mine Safety and Health Act of 1977 (Act). 30 U.S.C. § 801 ~ ~·
The Secretary of Labor, charged the operator, Phelps Dodge Corporation, with a violation of 30 C.F.R. § 56.16001. The violation was issued as a result of an accident in which one man was
killed and another seriously injured.
On April 27, 1987, the parties submitted a motion to approve
a settlement in the amount of $192 which was the originally
assessed amount.
On May 6~ 1987~ I issued an order disapproving the recommended settlement~ explaining.why the recommendations of the
parties could not be accepted. 9 FMSHRC 920 (May 1986).
On June 2, 1987, at the request of counsel, a telephone conference call was held. Counsel advised that they had attempted
to address the concerns expressed in the disapproval of settlement and requested permission to submit a revised settlement
motion. I granted the request.
On June 19, 1987, the parties submitted the revised motion
seeking approval of a settlement in the amount of $3,840.
Thereafter, on June 25, 1987, pursuant to counsels' request,
another telephone conference call was held to discuss the revised
motion. I advised that most of the proposed findings and
conclusions were acceptable, but stated that based upon MSHA 1 s
Accident Investigation Report, and other materials of record, a
finding of 11 low negligence 11 was not acceptable. Counsel
1286

requested permission to submit another settlement motion, which
request was granted.
On July 7, 1987, a third motion was submitted which proposed
a settlement of $5,000. After a review of .this motion, I am
satisfied that the recommended findings and conclusions set forth
therein are in accordance with the record and that the settlement
amount satisfies the requirements of the Act.
The subject Citation, No. 26620005, dated January 8, 1986
describes the condition as follows:
Two employees of an independent contractor
were seriously injured on November 25, 1985,
~nd one died on December 19, 1985, when a
bundle of three, 12 inch by 45 feet long pipe
that were banded together slid from a stack
and pinned the victims between pipe on the
ground they were attempting to put a choker
on, and the falling bundle. The pipe had
been stacked about one week prior to the accident by an employee of the production-operator in a manner that contributed to a fall of
material hazard in that the south stack of
five bundles of pipe had three pipe in the
.bottom bundle, three pipe in the next bundle
and four pipe in the top three bundles,
resulting in a total height of approximately
5-1/2 feet. The top bundle of four pipe in
the south stack apparently slid to the north
and pushed the three pipe off the north pile
onto the victims.
The mandatory standard, 30 C.F.R. § 56.16001, requires that:
Supplies shall not be stacked or stored in a
manner which creates tripping or fall-ofmaterial hazards.
The MSHA Accident Investigation Report sets forth these
facts: Phelps Dodge Corporation contracted with Hamilton Western
Construction Company, Inc., to install a 6,000-foot-long 12-inch
dewatering pipeline. This arrangement required that Hamilton
Western lay the pipeline in accordance with a provided design
while Phelps Dodge was to provide, among other items, the plastic
pipe specified. Phelps Dodge purchased the required pipe which
was delivered to the mine-site by common carrier. As in previous
deliveries, the pipe was received by Phelps Dodge warehousing
personnel who unloaded the pipe with a Phelps Dodge forklift.
The pipe was unl~aded and stacked at a predetermined location
ahead of the approaching pipeline construction. The pipe in
question was delivered and unloaded on November 12, 1985,
thirteen days before the accident. A total of 49 pipes was de1287

livered packa~ed in seven 3-pipe and seven 4-pipe bundles. The
pile nearest the pipeline contained three 4-pipe bundles overlain
by two 3-pipe bundles (north stack). Abutting this pile on the
south was a 22-pipe pile consisting of two 3-pipe bundles on top
of which were stacked four 4-pipe bundles (south stack). This
pile was inherently unstable since the base bundles were 12 3/4
inches narrower than the width of 16 pipe lengths it supported.
During preceding pipe-laying activity, pipe bundles were reportedly stacked only 2 or 3 units high (approximately 43.5 inches).
On this occasion, however, the bundles were stacked 6-high (87
inches). The crew, therefore, was faced with a significantly
different set of physical conditions. The pipeline construction
crew consisted of a crane operator and two laborers. They had
previously received their work assignment and proceeded to the
jobsite without their supervisor's presence. The crane operator
moved a cherry picker into hoisting position as the first laborer
readied the fusion equipment. The crane operator began cutting
the steel-securing bands of the top 3-pipe bundle of the south
stack nearest the crane. He cut 5 of the 6 bands and, positioning himself in the clear, cut the last band. This allowed the
3-pipes to fall to the ground on the south side of the steel service pipeline. He then obtained hoisting slings while the second
laborer positioned a dozer to drag fused lengths of pipe away
from the fusion machine. As the crane operator was attaching the
hoisting sling to the first pipe on the ground, the remaining
3-pipe bundle of the north stack slid to the ground landing on
top of him and pinning the second laborer's right leg, against the
steel service pipeline. Apparently at the same time the top
4-pipe bundle of the south stack also slid off to the north and
across the pipe bundle lying atop the crane operator. Twentyfour days later the crane operator died of his injuries. The
second laborer suffered a broken leg.
The Accident Investigation Report described the cause of the
accident in this manner:
The direct cause of this accident was the
failure to recognize the instability of the
irregularly stacked pipe bundles.
Possibly contributing to this accident
was the fact that the crew members were not
accustomed to working with pipe piled higher
than 2 or 3 bundles. In this accident the
bundles were stacked 6-high. The light rainfall of the past night may have created even
greater pi re i nstab i 1 it y; vie t p1 as ti c pi pe
presents a very slippery surface.
The most recent settlement motion analyzes the cause of the
accident as follows~

1288

Both the citation and the investigation
report identify as a cause of the accident
the manner in which the pipes were stacked.
While these statements were made, the only
apparent problem with the stacking of the
pipe was that the south stack of pipes consisted of two 3-pipe bundles on top of which
were stacked four 4-pipe bundles. The
apparent problem was mitigated by the established and usual procedure of Hamilton in
removing the top bundle of pipe from the
stacks first. By removing the highest bundle
first any problem with undercutting the support of bundles at a higher elevation would
be eliminated. Hamilton 1 s employees failed
to follow this procedure when they removed
the fifth bundle from the north stack before
they removed the sixth bundle from the .south
stack. Had Hamilton's employees followed
this procedure the hazardous condition would
have been minimized and in all likelihood
eliminated. The apparent problem with the
stacking of the pipe was further mitigated by
the fact that there was no shifting of the
pipe between the second row (3-pipe bundle)
and the third row (4-pipe bundle) of the
south stack. Rather the movement of pipe
occurred between the fifth and sixth stacked
bundles and then the fourth and fifth stacked
bundles of the south stack. The apparent
problem with the stacking of the pipe was
effected by considerable mitigating
circumstances.
During the first conference call I inquired about the liability, if any, of the independent contractor. The settlement
motion advises in this respect:
Hamilton, the independent contractor, was.not
issued a citation even though the accident
would not have occurred had its employees
removed the top or sixth bundle from the
south stack before removing the fifth bundle
from the north stack in accordance with the
usual procedure. However, the Mine Safety
and Health Administration was unable to
determine that the contractor Hamilton violated any mandatory standard applicable to
the conditions.
The fact that the independent contractor was not cited does
not, of course, increase the operator's liability with respect to
the acts for which it is responsible. Nor does it affect
1289

a determination as to what constitutes an appropriate penalty in
this proceeding. However, in light of the inability to cite the
independent contractor in this case, the Secretary may wish to
re-examine the relevant mandatory standards.
I find that the accident had multiple causes, one of which
was the way the operator stacked the pipes. Another was, as the
parties represent, the way in which the independent contractor
removed the pipes. Based upon the record and in light of the
representations of the parties, I conclude that the occurrence
was extremely serious and the operator was negligent. In
addition, the operator 1 s size is large; its history of violations
is small; imposition of the recommended penalty will not affect
ability to continue in business; and there was good faith
abatement.
In light of the foregoing, the recommended settlement is
APPROVED and the operator is, if it has not done so already,
ORDERED TO PAY $5,000 within 30 days of the date of this
decision.

Paul Merlin
Chief Administrative law Judge
Distribution:
Eve Chesbro, Esq., Office of the Solicitor, U. S. Department of
Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Thomas A. Mascolino, Esq., Counsel. Trial Litigation, Office of
the Solicitor, U. S. Department of Labor, Suite 400, 4015 Wilson
Boulevard, Arlington, VA 22203 (Certified Mail)
G, Starr Rounds, Esq., Robert L. Dysart, Esq., Evans, Kitchel &
Jenckes, P. C., 2600 North Central Avenue, Phoenix, AZ
85004-3099 (Certified Mail)
Mr, Richard E. Rhoades, Manager, Phelps Dodge Corporation-Tyrone
Branch, P. O. Drawer B, Tyrone, NM 88065 (Certified Mail)
I gl

·1290

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

JUL 2 91987
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 86-119
A. C. No. 41-00356-03538

v.

.

TEXAS UTILITIES GENERATING
COMPANY,
Respondent

Sandow Mine

DECISION
Appearance:

Thomas F. Lillard, Esq., Christopher R. Miltenberger,
Esq., Worsham, Forsythe, Sampels, and Wooldridge,
Dallas, Texas, for the Respondent;
Max A. Wernick, Esq., Jill D. Klamm, Esq., Office of
the Solicitor, U. s. Department of Labor, Dallas,
Texas, for the Secretary.

Before:

Judge Weisberger

Statement of the Case
On August llr 1986, the Secretary (Petitioner) filed a
Petition for Assessment of Civil Penalty for alleged violations
by the Respondent
30 C.F.R. § 77.501 and 30 C.F.R. § 77.509.
Respondent filed
Answer on September 2, 1986. Pursuant to
notice, the case was heard in Austin, Texas on December 23, 1986.
William J. C
ielka testified for the Petitioner, and Garren
Stroud, Thomas Nelson, and Robert Freyensee testified for the
Respondent.
After taking testimony from the above persons, the
hearing was adjourned to allow the Parties to brief the issue as
to whether Respondent would be allowed to cross-examine Inspector
C
ielka with regard to prior inconsistent statements and
actions indicating bias. The Parties submitted Br fs and Reply
Briefs. On February 4, 1987, an Order was issued allowing
Respondent to further cross-examine Insoector Ciesielka. on
February 19, 1987,
Petitioner filed~a Motion for Continuance
which was not opposed by the Respondent. The motion was granted,
and the case was acheduled for April 7, 1987, in Austin, Texas.
On March 16, 1987, Petitioner filed a Motion for Indefinite stay.
This motion was denied in an Order of March 19, 1987. On

1291

April 1 1987, Petitioner filed with the Commission a Petition
for Interlocutory Review of the Orders dated February 4, 1987 and
March 19, 1987, and also made a Motion to Suspend the hearing
scheduled for April 7, 1987. The Commission, in an Order dated
April 6, 1987, denied the Secretary's Petition for Interrogatory
Review and also denied to stay the hearing scheduled for April 7,
1987. At the hearing, William J. Cieslelka testified for the
Petitioner, and Paul Teinert, III, Garren Stroud, Robert
Freyensee, Gary Lane, Sam Philip Jordan, and Jim Roach testified
for the Respondent.
1 ,

Petitioner filed its Brief and proposed Findings of Fact on
June 18, 1987, and Respondent filed its Brief and proposed
Findings of Fact on June 19, 1987. Reply Briefs were filed by
Petitioner and Respondent on June 28 and June 29, 1987,
respectively.
Stipulations
The Parties have stipulated as follows:
a. The undersigned has jurisdiction over the Parties and
subject matter in this proceeding.
b. The Sandow Mine No. 1, Mine I.D. No. 41-00356-03538, had
an annual tonnage in 1985 of 6,252,848. At the time of the
December 23, 1986 hearing, the projected tonnage of 1986 was 5.5
million.
c. The Respondent had 39 inspection days in 1983; 36 in
1984; 44 in 1985; and 18 in 1986; and 77 over the previous 24
months.
d. Respondent had 5 assessed violations in 1983; 29 in
1984? 60 in 1985; and 82 assessed violations over the previous 24
months.
e. The fine proposed by Petitioner will not adversely
affect the Respondent's ability-to continue in business.
f. William Ciesielka, the Mine Safety and Health
Administration ( 11 MSHA") Inspector, who issued the contested
citations, was~ duly authorized representative of the Secretary.
g. On February 26, 1986, an inspection was conducted by
an authorized representative, William Ciesielka, which resulted
in the issuance of the two orders which are in issue.
h. The orders were issued with regard to two employees who
were involved in the digging of a trench, in a substation area,
that included a transformer that received 33,000 volts of power
coming into the transformer.

1292

i. The two employees involved, in digging the ditch, were
pick and shovel men, and were· not electrically qualified
personnel within the meaning of the Act and the regulations.
j. The two employees, in the substation area, did not work
on electrical switches. All work on the electrical circuits or
switches had been done prior to the entry of the two employees
into the substation area.
k. The switch coming out of the transformer had energized
lines going into the top of the switch, and the switch was in the
open position. The switch was not tagged at the time of the
inspection.
1. The trench, being dug by the two employees, was 10 feet
long, and located approximately 2 to 4 feet from the bottom of
the switch.
m.
locked.

The switch or circuit breaker was capable of being

n. The abatement of Order No. 2838513 occurred within 3
minutes of notification of the alleged violation. The operator
removed the two employees from the area and undertook efforts to
activate the disconnect which prevented the 33,000 volts from
flowing into the transformer.
o. The abatement of Order No. 2838513 occurred within 10
minutes of issuance. The operator pulled the power, which
prevented electricity from going into the transformer station,
and the pole used to pull the circuit breaker was tagged.
p" The electrical work being performed was confined to the
480 volt circuit breaker switch.
Issues
The issues are whether the Respondent violated 30 C.F.R.
77.501 and 30 C.FoR. § 77.509(C)u and, if so, whether the
violations were of such a nature· as could significantly and
substantially contribute to the cause and effect of a mine safety
or health hazard, and whether the alleged violations were the
result
the Respondent's unwarrantable failure. If sections
77.501, supra, and 77.509(c), supra, have been violated, it will
be necessary to determine the appropriate civil penalty to
assessed in accordance with Section llO(i) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C §et. ~, (the Act).
§

1293

Regulations
30 C.F.R § 77.501, as pertinent, provides as follows:
No electrical work shall be performed
on electric distribution circuits or
equipment, except by a qualified person or by
a person trained to perform electrical work
and to maintain electrical equipment under
the direct supervision of a qualified person.
Disconnecting devices shall be locked out and
suitably tagged by the persons who perform
such work, except that in cases where locking
out is not possible, such devices shall be
opened and suitably tagged by such
persons ••••
30 C.F.R. § 77.509(c) provides as follows:

xx x
"(c) Transformer enclosures shall be kept locked
against unauthorized entry."
Findings of Fact and Conclusions of Law
Order No. 2838513
Order No. 2838513 which was issued by MSHA Inspector William
Jo Ciesielka on February 26, 1986, provides as follows:
The 33 KV 2480 Transformer located at the
bucket repair shed was not kept locked
against unauthorized entry in that two
mechanics (not electrical qualified) were
inside the enclosur~ digging a trench. A
qualified electrician was not at the site to
directly supervise the work. A maintenance
supervisor was in the area where he could
observe the situation. Therefore this is an
unwarrantable violation.
The substation in question, located at Respondent's Sandow
Minev contained a transformer, disconnecting device, and other
electrical equipment, and was enclosed by a chain-link fence.
According to the uncontradicted testimony of Respondent's
witnesses, on February 26, 1986, Respondent's Electrical Foreman
Garren Stroud instructed Respondent's electrician, Royce Mundine,

1294

to cutoff the power at the main breaker in this substation,
remove the power cable from the bottom of the breaker, and remove
the cable from the substation area so that a trench could be dug
running from underneath the breaker box to the edge of the fence.
After the electrical cables were disconnected, Stroud explained
to Respondent's supervisor, Thomas Nelson, that a trench or ditch
had to be dug in the substation, and Mundine "laid it out"
(Tr. 143). According to the testimony of Stroud, Mundine
instructed Robert Yurk and John Bland, the two mechanics who were
to dig the ditch, about the haeards that could exist within the
substation fence.
In contrast, it was the testimony of MSHA
Inspector Ciesielka that when he subsequently arrived on the
scene, on the date in question, Yurk told him that "I don't know
what I am doing in here. This is an electrical job, and I know
nothing about electric." (Tr. 23).
In resolving the conflict
between these versions, I note that Stroud's testimony was
corroborated to some extent by Nelson who testified that he was
present when Yurk was told, prior to time the ditch was dug, what
he was to avoid making contact with. Also, Stroud was actually
with Mundine on the date in question, and thus is competent to
testify as to what Mundine said. On the other hand, Ciesielka
was not privy to any conversations between Mundine and Yurk.
Thus, based on the credible testimony of Stroud and Nelson, I
find that Mundine told Yurk and Bland, in general, the hazards to
avoid in digging the ditch.
Further, according to the uncontradicted testimony of
Nelson, Mundine was in the substation enclosure for about 15
minutes while the trench was being dug by Yurk and Bland. Nelson
testified that he had been told by Mundine that, in digging the
trench, "back up at all time so you won't back into the breaker
box" (Tr. 142). Nelson further testified that he was in the
substation while the men dug the ditch and he stood inside
between the gate and the breaker. Specifically, Nelson testified
that he was standing at the gate when Ciesielka and the Union
Representative Paul Tinert arrived at the scene on the date in
question.
In this regard, Nelson's testimony was, in essence,
corroborated by Robert Freyensee, Respondent's superintendent,
who arrived at the substation, on the date in question, along
with Ciesielka. · On the other hand, Ciesielka testified that when
he and Tinert approached the substation he observed two employees
ins
digging a trench, and that there was no other personnel
inside. He also testified that when he arrived at the substation
area, he observed Nelson coming up from the bucket shed area.
In
essence, Ciesielka's testimony was corroborated by Tinert.
I
carefully observed the demeanor of all the witnesses testifying
on this issue, and find that Nelson and Freyensee were more
credib

1295

Thus, inasmuch as the credible evidence establishes that
Nelson, Yurk, and Bland were inside the substation, at the
request of Stroud, and had been apprised by Mundine, in essence,
to avoid contact with the electrical equipment, and inasmuch as
Yurk and Bland.were being supervised by Nelson who was present in
the substation, I find that the substation was unlocked to
provide authorized entry. As such, I find that there has not
been any violation by Respondent of 30 C.F.R § 77.509(c}.
Order 02838514
Order 02838514 provides as follows:
Electrical work was being perform on an
electrical distribution circuit without the
disconnecting devices being locked out and
suitably tagged by the persons doing such
work. The circuit going from the 7200T0480V
transformer at the bucket repair shed was
being relocated and a trench dug in the
substation area inside the fence. A
maintenance supervisor was near by in the
area during observance of this condition and
the qualified electrician was away, returning
later with the mechanical/electrical
supervisor. Therefore, this is an
unwarrantable violation.
On the date in question, within the substation area in
question, there was located a disconnecting device also referred
to as switch box or circuit breaker. This item was located in a
box that had a cover on ito
It was stipulated that the box was
not tagged~ but that the door was closedo There was no evidence
that the door was lockedv but Ciesielka agreed that to open the
box would necessitate undoing snapso A lever controlling power
from the box w~s located outside the box, and was in a down
position which would not allow electricity to flow out of the box.
The lever was not lock or taggedo Cables at the top of the box
were energizedv but they were insulatedo The box itself was not
energized¢
Because the power cable had been removed from the
boxp there was no power going from the box to buildings and there
was also no power going to a number 6 cable coming out of a
second transformer inside the fenced in areao
In actuality there is no dispute that a disconnecting
device, on the date in question, was not locked out and tagged.
In essence, it is Respondent's position, that Section 77.501,
supra, was not violated, inasmuch as all electrical work, in the
substation, had already been completed when the disconnecting
device was observed by Ciesielka to be untagged and unlocked.

1296

The second sentence of Section 77.501, supra, unequivocally
prohibits having a disconnecting device that is not tagged or
locked out. Although the first sentence of Section 77.501,
supra, refers to persons performing "electrical work," there is
no language in either of the two remaining sentences of Section
77.501, supra, to limit their application only to instances where
electrical work is actually being performed. The manifest intent
behind the requirement of having disconnecting devices locked out
is to prevent the hazard of a injury being caused by a person
coming in contact with an energized object which has been
energized by a person inadvertently activating the disconnecting
device. Such a hazard is more likely when electrical work is
being performed, but also exists if authorized persons are in the
area performing other work. Accordingly, I find that Section
77.501, supra, has been violated.
The failure to tag or lock the disconnecting device can only
be considered to be significant and substantial if, as a result
of this violation, there is a measure of danger to safety
contributed to, with a reasonable likelihood that the hazard
contributed to will result in a injury of a reasonably serious
nature (See Mathies Coal Company, 6 FMSHRC 1 (January 1984).
Petitioner's argument that the violation herein of Section
77.501, supra, is to be considered significant and substantial,
appears to be predicated upon the testimony of Ciesielka, that,
in essence, whenever a person is working in an area that has even
low voltages there is a hazard of electrocution upon making
contact with an energized part. However, the testimony of
Ciesielka upon cross examination, and the uncontradicted
t~stimony of Stroud, Respondent's supervisor of electricians,
establishes that the circuit breaker (also referred to as
disconnect boxf switch box or disconnecting device), itself was
not energized" Furtherv their testimony establishes that the
on
way that one could come in contact with a energized part of
the circuit breaker is to open it or shove something up the entry
hole at the bottom of the device where the wire comes out. Also,
although cables or conduits located on top of the breaker box
were energized they were 6 and 1/2 feet off the ground and
wrapped with insulation" Another breaker (Item 8 Respondent 1 s
Exhibit 2)v was 8 feet off the ground. Also, although Ciesielka
testified that there was a cable leading out of the breaker box,
I find based upon the credible testimony of Stroud that it was
not energized. Therefore, based upon all of the above, I
conclude that, although the breaker box in question was not
locked or tagged, it has not been established by Petitioner that
this violation would have resulted in the likelihood of an injury.
I thus conclude that the violation of Section 77.501, supra, was
not significant and substantial.
(See Secretary v. Mathies Coal
Company, supra.)

1297

In its brief, Petitioner argues, in essence, that the fact
that there was no lockout or tagging procedure on the
disconnecting device constitutes "a serious lack of reasonable
care." In this connection, Ciesielka testified that he
considered the Respondent's negligence and rated it as "high"
(Tr. 32). However, in discussing the Respondent's negligence,
Ciesielka testified only to Respondent's alleged action in
leaving unqualified people working without the direct supervision
of a qualified person in an energized enclosure. He did not
offer any analysis of Respondent's negligence with regard to the
violation of Section 77.501, supra. Thus, I find that the
Petitioner has failed to proffer sufficient evidence to support a
finding that the violation by Respondent of Section 77.501,
supra, resulted from its unwarrantable failure.
I have considered all of the criteria in Section llO(i) of
the Act. All criteria have been stipulated to except the
Respondent's negligence and the gravity of the violation. I
conclude that the gravity was extremely low due to the lack of
likelihood of an injury as a consequence of the violation herein.
Also, I find that Petitioner has failed to establish any degree
of negligences on the Respondent's part. I therefore conclude
that a fine of $20 is appropriate herein for the violation of
Section 77.501, supra.
ORDER
It
ORDERED that Order No. 2838513 be DISMISSED.
It is
further ORDERED that Order No. 2838514 be modified to a Section
104(a) Citation.
It is further ORDERED that Respondent pay the
sum of $20, within 30 days of the date of this decision, as a
c
il penalty for the violation found hereino

Avram Weisberger
Administrative Law Judge
Distribution~

Max Ao Wernick, Esq., Office of the Solicitor, U. s. Department
of Labor, 525 Griffin Streetu Suite SOlf Dallas, TX 75202
{Certified Mail)
Christopher R. Miltenberger, Esq., Worsham, Forsythe, Sampels &
Wooldridge, 2001 Bryan Tower, Suite 3200, Dallas, TX 75201
Mr. Glen E. Hood, Texas Utilities Generating Company, 400 North
Olive LB 81, Dallas, TX 75201 (Certified Mail)
dcp
1298

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

July 31, 1987
CONTEST PROCEEDING

GREENWICH COLLIERIES,
Contestant

:

v.

Docket No. PENN 86-17-R
Order No. 2549665; 9/16/85

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA'fION (MSHA)
Respondent

Greenwich No. 2 Mine
:

SECRETARY OF LABOR,
MINE SAFETY AND HEAL'rH

CIVIL PENALTY PROCEEDING

ADM.INis·rR.l\TION (MSHA)

Docket No. PENN 86-56
A.C. No. 36-02404-03610

Petitioner

v.

Greenwich No. 2 Mine

GREENWICH COLLIERIES, DIV/PA
MINES CORP. I
Respondent
DECISION
Appearances:

Joseph T. Kosek, Jr., Esq., Greenwich Collieries,
Ebensburgy Pennsylvania; Joseph Yuhas, Esq.,
Greenwich Collieries, Ebensburg, Pennsylvania;
B. Anne Gwynn, Esq.r Office of the Solicitor~
ArlingtonQ Virginia

Before:

Judge William Fauver

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

1299

FINDINGS OF FACT
1. Greenwich No. 2 Mine is an underground coal mine that
produces coal for sale or use in or affecting interstate
commerce.
2. Around 8:45 a.m., on September 16, 1985, in the P-7
section of the mine, Federal Inspector Samuel Brunatti observed
certain deviations from Respondent's approved ventilation plan in
that there was no check curtain across the last crosscut between
entries R-1 and R-2 and the R-2 face canvas extended from the
face to the inby corner of the belt entry in a manner that he
believed closed off air to the faces of the belt and R-1 entries.
He took an air reading at the face end of the canvas in R-2 entry
and found no air movement.
3. There was no power on the section at the time, except
for a roofbolting machine, and there was no mining going on.
4. When he began his inspection of this area Inspector
Brunatti first went to the face in R-2 entry, where he found
there was no air movement. He did this before he noticed any
deviations from the ventilation plan. When he made the air test,
he told a crew member, Ron Nagle, that they did not have enough
air to mine coal. Someone told the section foreman, David
Benamati, about the air problem and he came up to the face area.
Inspector Brunatti told the foreman, "You don't have enough air
in the mine, right here" pointing toward the R-2 face. The
foreman told the inspector they had used the same ventilation
syst~n on Friday, September 13, and had adequate air then.
The
inspector doubted this statementu and told the foreman that, if
he had had adequate air on Friday he should have no problem
getting adequate air then 1 and gave the foreman some time to
bring the ventilation up to the standard, i.e.v 5,000 cfm at each
face" The foreman checked the airv saw there was inadequate air,
and then had his men tighten the air curtai~s. He testified that
the curtains had been loosened or repositioned before the
inspector arrivedu because they were going to install a
run-through curtain in the crosscut between R-1 and R-2 entries
before mining coal. After the curtains were tightened, the
foreman took another air reading at R-2 face, and found 3,800
cfm~ still not enough air.
The foreman then went to the return
r entry, several crosscuts away, to try to find the cause of
the air problem.
5.
While the foreman was away trying to find the cause of
the air problem, the inspector started investigating the problem
near the R-2 face and crosscut between R-1 and R-2 entries. The
inspector then discovered deviations from the approved

1300

ventilation plan which he assumed were the cause of the air
problem. He found that there was no check curtain in the
crosscut between R-1 and R-2 entries and that the canvas from the
face in R-2 entry extended to the inby corner of the belt entry.
He believed that the canvas was too near the rib to allow
adequate air to reach the faces and that this condition prevented
adequate ventilation of the R-2 face.
6.
Meanwhile, the foreman discovered a dislodged post
blocking an air curtain in the belt entry which he believed to be
the cause of the air problem. The foreman reset the post and
rehung the curtain in the belt entry, and returned to the R-2
face area. He rechecked the air there and found over 5,420 cfm.
7.
While the foreman had been over to the belt entry, the
mine foreman, Paul Somagi, instructed miners to install the
run-through curtain in a different place (from the place where
the foreman was going to install it) and to reposition the
curtains to comply with the ventilation plan.
8.
The inspector assumed that the new, adequate air
reading taken by the foreman was due to the ventilation curtain
changes made by Somagi; he did not know about the foreman's
discovery of a dislodged post blocking a curtain in the belt
entry or his repair of that problem. The foreman assumed the
improved air reading was due to his resetting of the dislodged
post and rehanging of the curtain in the belt entry.
9.
The inspector and the foreman never effectively
aommunicated their views to each other with respect to the
ventilation problem and how it was solved.

10. The inspector issued a§ 104(d)(2) order (No.
2549665) charging a violation of the ventilation plan and
therefore a violation of 75 C.F.R. § 75.316, based upon th~
following allegations of fact:
The approved ventilation and methane and dust control plan
was not being complied with at P-7, active working section,
in that mining was being conducted in the R-2 entry.
However, no check or other device was erected across the
crosscutv R-1 to R-2v thus allowing the air to short circuit
back to the return and not properly ventilate the R-2 face
while coal was being mined. Also the canvas extended from
the face of the R-2 entry outby to the inby corner of the
belt entry, closing off all the entries to the faces of the
belt and R-1, thus providing little or no ventilation to
these faces. This condition occurred on the 4:00 p.m. to
12:00 p.m. shift on September 13, 1985, which was under the
supervision of Dave Benamati.

1301

11. The inspector had not been at the mine on September 13,
1985, and no witness for the Secretary had been in the P-7
section on that date. The only eye-witness (of September 13
conditions) who testified at the hearing was the foreman, who
testified that there was no air problem in the P-7 section on
September 13. He also testified that the check curtain between
R-1 and R-2 entries was in place on September 13, and the canvas
in R-2 entry was also in place, both as required by the
ventilation plan.
DISCUSSION WITH FURTHER FINDINGS
The Secretary did not put the entire ventilation plan in
evidence but presented a ventilation diagram from the plan and
the testimony of the inspector, who testified that the plan
required a minimum of 5,000 cfm at each working face while coal
was being mined.
There was no mining in section P-7 at the time of the
inspection on September 16, 1985. The foreman testified that
some of the air curtains were out of place because he was
preparing to do construction work, i.e., installing a plank in
the roof and hanging a run-through curtain on the plank. Since
there was no mining at the time, I find that the Secretary did
not prove a violation of the ventilation plan on September 16.
Apart from this conclusion, I find that Order No. 2549665 does
not adequately charge a violation on September 16 and therefore
cannot support a finding of a violation on that date. The order
states that the deviations from the ventilation plan occurred
during mining in R-2 entry and that "This condition occurred on
•.. September 13, 1985."
The Act provides that each charge of a violation of a safety
or health standard »shall be in writing and shall describe with
particularity the nature of the violation .•• " (§ 104(a)). I
conclude that Order No. 2549665 does not give sufficient notice
of a violation on September 16, 1985, and therefore the
Secretary's contention of a violation on that date is not
cognizable in this proceeding.
The order sufficiently charges a violation on September 13,
1985, but the Secretary did not meet his burden of proof as to
this charge. The only hearing witness who was an eye-witness to
the conditions on September 13 was the foreman, and he testified
that there was no ventilation problem on that date and there was
sufficient air at the faces. The Secretary attempted to prove a
violation by two elements of proof:
(1) the foreman's statement
to the inspector to the
f ect that he had used the same
ventilation system on September 13 as he used on September 16 and

1302

(2) the hearsay statement of of Ron Nagle to the inspector that
they had nno air" on September 13.
The foreman's statement about the ventilation system used on
September 13 was not clear. The foreman testified that he meant
that the same ventilation system used on September 13 was going
to be used on September 16 after the construction work and before
mining was to begin on September 16. The inspector and the
foreman did not communicate clearly on this point. Their
misunderstanding is not a sufficient basis for finding a
management admission or acknowledgement of a violation or a
statement of undisputed facts that would support a determination
of a violation.
The statement attributed to Ron Nagle is a hearsay opinion
statement that does not purport to be based on actual air
readings or an attempt to measure the velocity of air in the P-7
section on September 13. Without that specificity and without
the opportunity of Respondent to cross-examine Nagle as to the
basis of his opinion, I find that the hearsay opinion' is not
subtantial evidence and is not sufficient to substantiate the
charge of a violation of the ventilation plan on September 13.
CONCLUSIONS OF LAW

1.

The Commission has jurisdiction in these proceedings.

2. The Secretary did not meet his burden of proving a violation
of 75 C.F.R. § 316 on September 13, 1985, as charged in Order No.
2549665.
3. The Secretary's contention that Respondent violated 75 C.F.R.
§ 316 on September 16, 1985 is not cognizable in this proceeding
because such charge is not sufficiently alleged in Order No. 2549665.
In additionu the Secretary failed to prove such a violation on the
facts.

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ORDER
WHEREFORE, IT IS ORDERED that:
1.

Order No. 2549665 is VACATED.

2.

The petition for a civil penalty is DENIED.

;. 11!

#

::r~v'e;L

J.lliam Fauver
Administrative Law Judge
Distribution Certified Mail:
Joseph T. Kosek, Jr., Esq., Joseph Yuhas, Esq., Greenwich Collieries,
P. o. Box 367, Ebensburg, PA 15931
Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 14480 Gateway Building, 3535 Market Street, Philadelphia,
Pennsylvania 19104
npt

1304
*U. S. GOVERNMENT PRINTING OFFICE 1987: 181-224/72926