May 1982
Commission Decisions

5-03-82
5-03-82
5-04-82
5-05-82
5-05-82
5-20-82
5-20-82
5-20-82
5-20-82
5-20-82
5-20-82
5-20-82
5-20-82
5-20-82
5-20-82
5-20-82
5-20-82
5-20-82
5-20-82
5-26-82

Eastern Associated Coal Corp.
Delmont Resources, Inc.
Capitol Aggregates, Inc.
Allied Products Co.
Sam Kennedy d/b/a Energy Salvage Co.
National Mines Corp.
Southern Ohio Coal Corp.
Virginia Pocahontas Co.
Ranger Fuel Corp.
Island Creek Coal Co.
Island Creek Coal Co.
Island Creek Coal Co.
Island Creek Coal Co.
Island Creek Coal Co.
Princess Susan Coal Co.
Allied Chemical Corp.
Ranger Fuel Corp.
Kentland-Elkhorn Coal Corp.
The Helen Mining Co.
Medicine Bow Coal Co.

PITT 76X203(16Nll'r 71-~~) Pg. 835
PENN 80-268-R
Pg. 843
CENT 79-300-M
Pg. 846
SE 79-46-M
Pg. 850
VINC 78-11 (18MA?8-q) Pg. 852
KENT 80-130-R
Pg. 854
LAKE 80-142
Pg. 856
VA 79-131-R
Pg. 858
WEVA 79-218-R
Pg. 860
KENT 80-14-D et al
Pg. 862
KENT 79-216-R
Pg. 864
VA 79-74-R
Pg. 866
VA 79-61-R
Pg. 868
WEVA 79-242-R
Pg. 870
WE·VA 79-423-R
Pg. 872
WEVA 79-148-D
Pg. 874
WEVA 79-217-R
Pg. 876
PIKE 78-399
Pg. 878
PITT 79-11-P
Pg. 880
WEST 81-163
Pg. 882

Administrative Law Judge Decisions

5-03-82
5-11-82
5-12-82
5-12-82
5-14-82
5-14-82
5-17-82
5-18-82
5-21-82
5-21-82
5-21-82
5-24-82
5-26-82
5-26-82
5-27-8'2
5-28-82
5-28-82
5-28-82

Peabody Coal Co.
Victor McCoy v. Crescent Coal Co.
F & F Mendisco Mining Co.
Cathedral Bluffs Shale Oil Co.
United States Steel Corp.
Carolina Stalite Co.
Clay Kittanning Coal Co.
United States Steel Corp.
Jack Parks v. L & M Coal Corp.

UMWA
UMWA
Oak Mining Co.
Quarto Mining Co.
Clay Kittanning Coal Co.
United States Steel Corp.
Roger D. Anderson v. Itmann Coal Co.
Fairfax Trucking Co.
U.S. Steel Mining Co.

LAKE 82-5-D
PIKE 77-71
WEST 80-458-M
WEST 81-186-M
LAKE 81-185-M
SE 80-21-M
WEVA 81-397
LAKE 82-36-M
NORT 75-377
LAKE 82-70-R
LAKE 82-71-R
WEVA 82-5
LAKE 81-118-R
WEVA 81-11
LAKE 81-116-M
WEVA 80-73-D
WEVA 81-393-D
PENN 82-29

Pg. 889
Pg. 895
Pg. 897
Pg. 902
Pg. 906
Pg. 910
Pg. 911
Pg. 913
Pg. 918
Pg. 921
Pg. 923
Pg. 925
Pg. 931
Pg. 948
Pg. 954
Pg. 963
Pg. 970
Pg. 971

Commission Decisions

MAY

The following cases were Directed for Review during the month of May:
United States Steel Corporation v. Secretary of Labor, MSHA, Docket Nos.
LAKE 82-102-RM, etc. (Judge Steffey, April 15, 1982)

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

May 3, 1982
EASTERN ASSOCIATED COAL
CORPORATION

v.

Docket No. PITT 76X203

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

IBMA 77-28

. DECISION
'
This case arose under the~~ederal Coal Mine Health and Safety Act
of 1969, 30 U.S.C. § 801 ~ ~· (1976) (amended 1977) ("the Coal
Act"). 1/ Apart from the merits of this case, a procedural issue must
first be addressed. The Commission requested supplemental memoranda
and held oral argument on the question of whether under the Coal Act an
operator could obtain review of a notice of violation independent of a
civil penalty proceeding or a proceeding to review the validity of a
withdrawal order. Attention was focused on this issue due to the decision of the United States Court of Appeals for the District of Columbia
Circuit in UMWA v. Andrus (Carbon Fuel Co.), 581 F.2d 888 (1978), cert.
denied sub nom. Carbon Fuel Co. v. Andrus, 439 U.S. 928 (1978). I-n~
Carbon Fuel the court, in essence, held that under the Coal Act notices
of violation not involving an imminent danger could not be reviewed on
the merits prior to the issuance of a withdrawal order or institution
of civil penalty ~roceedings.
In Howard Mullins v. Andrus, 664 F.2d 297 (D.C. Cir. 1980), the
D.C. Circuit again was confronted with a Coal Act case involving review
of a notice of violation. Mullins was pending when the decision in
Carbon Fuel was issued and the court refused to retroactively apply its
Carbon Fuel holding. Balancing the factors relevant to retroactive
application of a newly announced principle, the court concluded that"
retroac~iye application of its Carbon Fuel holding was no~ warranted.
664 F.2d at 302-305. Therefore, in Mullins the court proceeded to
review the merits of the notice of violation therein at issue.
For reasons similar to those of the D.C. Circuit in refusing to
retroactively apply its Carbon Fuel holding, we believe that it is
unnecessary at this late date for us to resolve whether, in our view,
Carbon Fuel or precedent established by other courts and the Board
of Mine Operations Appeals correctly resolved the issue of review1/ · On March 8, 1978, this case was pending on appeal before the
Department of Interior's Board of Mine Operations Appeals. Accordingly,
it is before the Commission for disposition. 30 U.S.C. § 961 (Supp. III
1979). The Mine Safety and Health Administration (MSHA) has been substituted for its predecessor agency, the Mining Enforcement and Safety
Administration (MESA).

835

82-5-1

ability of the merits of notices under the 1969 Coal Act. ]:./ The Coal
Act was substantially amended in 1977 and this case and three others ]_/
are the only remaining Coal Act cases posing this issue. Because of the
age of these cases, and because we can perceive no realistic adverse
impact that reviewing the merits of the three remaining cases could have
on miner safety and health, we will proceed to review the merits at this
time.
This case involves the interpretation of 30 C.F.R. § 77.215(j).
The standard provides in pertinent part:
All fires in refuse piles shall be extinguished, and
the method used shall be in accordance with a plan
approved by the District Manager.
On June 22, 1976, an inspector of the Mining Enforcement and Safety
Administration ("MESA") inspected a burning refuse pile located on the
surf ace of an underground bituminous coal mine owned and operated by
Eastern Associated Coal Corporation ("Eastern"). The pile is composed
of refuse deposited by the previous owner of the mine, Delmont Fuel
Company. At the time of the i~spection in this case, the pile was not
being used as a depository formine refuse and had not been so used
since 1953. The refuse pile is located 2 miles from the Eastern mine's
main portal and 800 to 1,000 feet from Eastern's preparation plant. The
refuse pile is 1,800 feet long and 400 feet wide. To the west of the
refuse pile is a railroad track running to the the mine's preparation
plant. To the east are two roads - one on mine property, the other on
township property.
The inspector was advised before he left his office that a plan to
extinguish the fire had not been submitted to the MESA district manager
for approval. When the inspector arrived at the mine, he saw smoke
rising from the pile at several points and smelled a strong sulphurous
odor. Trash was observed at the base of the pile. Motorcycle tire
tracks were obseryed on the pile. 4/ Red. dog had been removed from the
pile. 5/ After viewing the pile the insp-~ctor issued a notice alleging
a violation of § 77.215(j). The notice stated:
];./
Lucas Coal Co. v. IBMOA, 522 F.2d 581, 587 (3d Cir. 1975); Lucas v.
Morton, 358 F. Supp. 900, 903-904 (W.D. Pa. 1973 (3 - judge court);
Reliable Co~l Corp., 1 IBMA 50 (1971); Freeman Coal Mining Co·., 1 IBMA
(1970). But see United States v. Fowler, 646 F.2d 859 (4th Cir. 1981)
(agreeing with rationale of Carbon Fuel).
•
]_/
Inland Steel Coal Co., VINC 77-164, IBMA 77-66 (unabated notice);
Florence Mining Co. et al., PITT 57-15, etc, IBMA 77-66 (unabated notice);
. Alabama By-Products Corp., BARB 76-153, IBMA 76-114 (abated notice).
!±_/
It cannot be determined from the record who was responsible for the
trash or the tracks. Eastern's miners, however, are instructed never to
go onto the pile and no evidence was introduced that any ever did.
Moreover Eastern conducts no work on or at the pile.
'i../ Red dog. Material of a reddish color resulting from the combustion
of shale and other mine waste in dumps on the surface. U.S. Department
of the Interior, Dictionary of Mining, Mineral and Related Terms 904
(1968). Red dog is commonly used for road repair. Although Eastern had
in the past allowed the township to remove red dog from the pile, this
permission had been revoked one-half year before the inspection.

836

A plan has not been submitted to the District Manager
on the method that will be used to extinguish the
existing fire in the inactive refuse pile ••••
Eastern claimed that the notice was invalidly issued because the cited
standard does not apply to the subject refuse pile. The administrative
law judge agreed. The judge held that, when a burning refuse pile is
part of an underground mine, in order to prove a violation of the
standard the Secretary must show: the pile is on mine property; the
pile is located in a surface work area of the underground mine f}__/; and
the pile presents a real or potential hazard to a miner in the normal
course of his employment. The judge held that the Secretary had proved
the first ~lement, but not the latter two.
The judge's conclusion that the regulation only applied to refuse
piles located in "surf ace work areas where miners would reasonably be
expected to work or travel in the normal course of their employment" was
based upon his interpretation of section lOl(i) of the Coal Act. He
found that section lOl(i) "authorizes the Secretary to promulgate
mandatory safety standards for,_:surface coal mines and for surface work
areas of underground coal mines." 7/ (Emphasis added by judge). He
concluded, "the Act by its very terms limits the Secretary's authority
to regulate surface areas of underground mines and that limitation is
specifically directed to a work area •..• " (Emphasis added by
judge). §_/ The judge cited~the title of 30 C.F.R. Part 77 and to 30
C.F.R. § 77.1 as evidence that the Secretary recognized such a limitation.
Part 77 is entitled: "Mandatory safety standards, surface coal mines
and surface work areas of underground coal mines." (Emphasis added).
30 C.F.R. § 77.1, the scope provision for Part 77, states:
f}_/

The judge defined "surface work area" as:
Any surface area of a coal mine which could present a hazard to
the health and safety of miners in_places where they could reasonably be expected to work or travel in the normal course and scope
of their employment.

]_/

Section lOl(i), 30 U.S. C. §. 8ll(i) (1976), stated:
Proposed mandatory health and safety standards for surface
coal mines shall be published by the Secretary, in accordance with
the provisions of this section, not later than twelv~ months after
the date of enactment of this Act. Proposed mandatoiy health and
safety standards for surface work areas of underground coal mines,
in addition to those established for such areas under this Act,
shall be published by the Secretary, in accordance with the provisions
of this section, not later than twelve months after the date of
enactment of this Act.

!}_/
The judge noted the following statements appearing in the preamble
when the refuse pile regulations were adopted:

The final regulations will provide the operator with
flexibility in constructing refuse piles and impounding
structures which will present no hazard to coal miners
in their work.
(footnote 8, cont'd)

837

This part 77 sets forth mandatory safety standards for bituminous,
anthracite, and lignite surface coal mines, including open pit and
auger mines, and to the surface work areas of underground coal
mines, pursuant to section lOl(i) of the [Coal Act].
(Emphasis added).
We find that the judge erred in concluding that a burning refuse
pile must be located in a surface work area of an underground coal mine
to be subject to the standard and that the Secretary must prove a
burning refuse pile presents a real or potential hazard to a miner in
the normal cause of his employment.
Section lOl(a) of the Coal Act, 30 U.S.C. § 8ll(a)(l976), granted
the Secretary the authority to promulgate mandatory standards. That
section stated:
The Secretary shall, in accordance with the procedures
set forth in this section, develop, promulgate, and
revise •.• improved mandatory safety standards for the
protection of life and the prevention of injuries in
a coal mine .•••
(Emphasis added). Section 3(h) of the Coal Act, 30 U.S.C. § 802(h)(l976),
defined "coal mine" as:
[A]n area of land and all structures, facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations and other property, real or personal, placed
upon, under, or above the surface of such land by any
person, used in, or to be used in, or resulting from,
the work of extracting in such area bituminous coal •.••
This definition is broad enough to include refuse piles, and it does not
indicate that the term was meant to be limited by whether work or travel
transpired at or near the enumerated areas or structures. Section
77.215(j) was promulgated in the. Federal Register "under the authority
of section lOl(a) of the 1969 Act." 40 Fed. Reg. 11775 (1975). We
conclude that section lOl(a)'s mandate to promulgate safety standards
for the protection of life and the prevention of injuries in a "coal
mine," as that term is defined in section 3(h), brings refust:! piles in
surface ar·eas of underground mines under the Secretary's jurisdiction.

(footnote 8 cont'd.)
A further addition is the requirement in 77.215(j) and
77.216(e) that the fire extinguishing operations on refuse piles and
impounding structures be conducted in accordance with an approved plan.
This new requirement is justified by the hazardous nature of the
extinguishing operation and the necessity to ensure that miners employed
in extinguishing operations are fully acquainted with the procedures
to be used. (Emphasis added by judge). 40 Fed. Reg. 775-76 (1975).

838

In our view, section lOl(i), in essence, was a procedural provision,
not jurisdictional. It required the Secretary to publish the proposed
mandatory health and safety standards for surface coal mines and "for
surface work areas of underground coal mines" "not later than twelve
months after the date of enactment of [the Coal Act]". The p.urpose of
this section was to ensure that the Secretary acted promptly in proposing
mandatory standards for surface mines and surface work areas of underground mines. Quick action by the Secretary was needed because the Coal
Act itself contained no statutory standards pertaining to surface coal
mines and very few statutory standards specifically relating to surface
areas of underground mines. An analysis of the bills from which section
lOl(i) ultimately emerged indicates that although the term "surface work
~areas" appeared in Senate bill S. 2917, in section 219(c), the purpose
of that section was to "require that proposed mandatory safety standards
be developed and published .•• as soon as possible, but not later than
twelve months after enactment." U.S. Senate Committee on Labor and
Public Welfare, Legislative History of the Federal Coal Mine Health
and Safety Act of 1969, 94th Cong., 1st sess., at 213. The House bill,
H.R. 13950, had a similar provision for the rapid publication of proposed mandatory standards, but its provisions were restricted to surface
coai ~ines. Section lOl(h) ofithe House bill stated:
'Proposed mandatory safety standards for surface coal
mines shall be developed and published by the Secretary
not later than twelve months after the enactment of
this Act.
At conference the Senate provision was essentially adopted because it
included a requirement that standards be published for surface work
areas of underground mines as well as for surface coal mines. Legis.
Hist. at 1509. Although neither the Senate Committee report nor the
Conference Report explains why the term "surface work area" was used
rather than "surface area," we believe it to have been a case of imprecise
draftsmanship, rather than an attempt to restrict regulatory juris·
diction to "surface work areas". As we.have noted, the broad grant of
authority in the Act afforded the Secretary jurisdiction to regulate
"an area of land and all ••• property, real or personal •.• upon, under,
or above the surface ••• used in a•• to be used in, or resulting from,
the work of extracting in such area bituminous coal". Restricting the
Secretary 1 s authority to only those portions of the surface areas where
work or travel occurred, or could be expected to occur, would be inconsistent with the otherwise broad applicability of the ~ct~
Moreover, there are logical limits to literalism, one of which is
when it leads to an incongruous result plainly at variance with the
policy of a statute when viewed as a whole. United States v. American
Trucking Associates, 310 U.S. 534, 543-544, (1940). The judge's finding
that section lOl(i) limits the Secretary's authority in regulating
surf ace portions of undergrou~d mines to work areas leads to such a
result. Under it, although a burning refuse pile in a non-work area of
an underground mine would not be subject to § 77.215(j), an identical
refuse pile in a non-work area of a surface mine would be, there being
no "work area" language pertaining to surface mine standards. Thus, we
conclude that the Coal Act, specifically section lOl(i), did not restrict
the Secretary to regulating only surface work areas of underground
mines.

':839

Eastern argues, however, that even if section lOl(i) does not limit
the Secretary, he voluntarily imposed such a restriction up.on himself.
Eastern notes, as did the judge, the title of Part 77, and the "scope"
provision at § 77.1, both quoted supra. The phrase "surface work area",
as used in both the title and the standard, clearly is taken from section
lOl(i). Indeed, 30 C.F.R. § 77.1 concludes with the statement that the
standards are set forth "pursuant to section lOl(i)." In view of our
conclusion that the words "surface work areas of underground coal mines"
are not used in a jurisdictional sense in section lOl(i), we conclude
that they do not acquire that sense by their repetition in the standards
adopted by the Secretary. J_/
We also disagree with the judge's holding that the Secretary must·
establish "that the pile presents a hazard, real or potential, which can
reasonably be expected to expose a miner to danger in the normal and
reasonable course of his employment." During the proniulgation of the
refuse piles standards the Secretary published in the Federal Register
findings of fact based upon public hearings. 39 Fed. Reg. 38,661 (1974).
His general finding with respect to refuse piles was that "[c]oal refuse
piles ••• can present a hazardJto health and safety." His specific
finding with respect to burning refuse piles was that "[b]urning reJ;use
piles present a health and safety hazard, and that hazard will be
decreased or eliminated when the burning pile is extinguished by any
safe and effective reasons." Id. Thus, the standard's requirement that
burning refuse piles be extinguished in accordance with an approved plan
is premised upon the finding that such piles are hazardous. That finding
having been made, the Secretary need not prove anew the hazardous nature
of burning refuse piles in every enforcement proceeding. 10/ To prove a
violation of § 77.21S(j), as with most standards, non-compliance with
the standard's terms need only be shown, i.e., the refuse pile is
burning. and a plan has not been filed. Cf. Vecco Construction Co.,
1977-78 CCR OSHD ,[22,247 (OSHRC).

J_/

Because we reverse the judge's finding that in order to establish a
violation of § 77.21S(j) the Secretary must establish that the refuse
pile is located in a surface work area, we need not determine whether,
as the Secretary argues, the judge adopted too restrictive a definition
of the term "surface work area."
10/ Evidence as to the actual extent of the hazard presented by a
particular burning refuse pile is, of course, relevant in determining
the gravity of a violation for penalty purposes.

840

Accordingly, the judge's decision is reversed and the case is
remanded for further proceedings consistent with this decision. 11/

11/ Chairinan Collyer assumed off ice after this case had oeen considered
at a Commission decisional meeting and took no part in the decision. A
new Commissioner possesses legal authority to participate in pending
cases, but such participation is discretionary and is not required for
the Commission to take official action. The other Commissioners reached
agreement on the disposition of the case prior to Chairman Collyer's
assumption of off ice, and participation by Chairman Collyer would
therefore not affect the outcome. In the interest of efficient
decision-making, Chairman Collyer elects not to participate in this
case.
Former Commissioner Nease participated in considering this case and.
also voted to reverse the judge's decision, but resigned from the Commission before the decision was ready for signature.

841

Distribution

Sally Rock, Esq.
Eastern Associated Coal Corporation
1728 Koppers Building
Pittsburgh, PA 15219
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd ..
Arlington, Virginia 22203
Mary Lu Jordan, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005
.:]:

Charles W. Newcom, Esq.
Sherman & Howard
2900 First of Denver Plaza
633 Seventeenth St.
Denver, Colorado 80202
Administrative Law Judge George Koutras
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

842

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

May 3, 1982

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 80-268-R
v.
DELMONT RESOURCES, INC.
ORDER
In Secretary of Labor v. Cement Division, National Gypsum Company,
3 FMSHRC 821 (1981), the Commission established the test under section
104(d) of the 1977 Mine Act for determining whether a condition created
by a particular violation is of such nature "as could significantly and
substantially contribute to the cause and effect of a ••• mine •••
hazard." In the instant proceeding, a section 104(d)(l) citation was
issued. On April 24, 1981, the administrative law judge issued a decision in which he applied the test enunciated in National Gypsum and
determined that the "evidence [was] insufficient to sustain the allegation that the .•• violation .•• was of such nature as could significantly
and substantially contribute to the cause and effect of a mine •••
hazard." Regarding the "significant and substantial" question, the
parties tried the case and submitted their post-hearing briefs prior to
the issuance of National Gypsum. On review, the primary question before
us is whether the judge correctly determined that the violation was not
significant and substantial.
In his brief on review, the Secretary requested that the proceeding
be remanded to the judge for the presentation of additional evidence if
we determined that the record was insufficient under National Gypsum to
sustain the section 104(d)(l) citation. On February 25, 1982, we ordered
the Secretary to submit an explanation of the additional evidence that
could be presented at this time to meet the National Gypsum test. On
March 15, 1982, the Secretary filed a supplemental brief describing
evidence he could present if the case were remanded. Neither Delmont nor
the UMWA has opposed the Secretary's request for remand.

843

82-5-2·

Having considered the Secretary's response in light of the present
record, we conclude that remand is appropriate to give the parties an
opportunity to present evidence relevant to the National Gypsum test. 1./
We express no views as to the probative value and weight of the evidence
described b,Y the Secretary.
Accordingly, this case is remanded to the Chief Administrative Law
Judge for reassignment and further proceedings, on an expedited basis,
consistent with this order. J:../

ll

Section 113(d)(2)(iii)(C) of the 1977 Mine Act provides in part:
••• If the Commission determines that further evidence is
necessary on an issue of fact it shall remand the case for
further proceedings before the administrative law judge.
'!:__/
The administrative law judge who rendered the initial decision in
this matter has since left the Commission.

844

Distribution
Nancy S. Hyde, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Ronald S. Cusano, Esq.
Rose, Schmidt, Dixon, Hasley
Whyte and Hardesty
900 Oliver Building
Pittsburgh, PA 15222
Raymond J. Roehler, Esq.
Harvey A. Zalevsky, Esq.
102 N. Main Street
"Suite· 200
Greensburg, PA 15601
Covette :Rooney, Esq.
Office of the Solicitor
U.S. Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104
Mary :Cu Jordan, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005
Chief Administrative Law Judge Paul Merlin
FMSHRC
1730 K Street, N.W.
Washington, D.C. 20006

845

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

May 4, 1982
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 79-300-M

v.
CAPITOL AGGREGATES, INC.
DECISION
This proceeding arises under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et~., (Supp. III 1979). The only issue on
review is whether a ramp used at a facility of Capitol Aggregates, Inc.,
is an elevated roadway within the meaning of 30 C.F.R. § 56.9-22. 1../
The cited standard provides that "berms or guards shall be provided on
the outer bank of elevated roadways." The administrative law judge
found the ramp was an elevated roadway and that the standard applied. '!:._/
For the reasons that follow, we affirm.
The citation at issue states:
The elevated ramp leading to the solid fuel loading hopper was
not equipped with a berm or guard creating a hazard for the
operator on the front-end loader in case of running off the
ramp.
The parties stipulated that the ramp in question was approximately
thirty feet long and four feet high at the highest point, and that it
was used by a caterpillar front-end loader for dumping petroleum coke
into a solid fuel loading hopper.
In finding that the ramp was an elevated roadway the judge referred
to dictionary definitions of "ramp," "road," and "roadway," 11 and the
1/
Capitol does not challenge the.fact that the ramp was "elevated,"
rather it asserts.the ramp is not a "roadway" subject to the standard.
2/
The judge's decision is reported at 3 FMSHRC 1684 (1981).
3/ The judge cited definitions in Webster's Third New International
Dictionary: "roadways:" A strip of land through which a road is constructed and which is physically altered; "road:" An open way or public
passage for vehicles, persons and animals ••• a private way. The judge
also cited the definition of "ramp" in Webster's New Collegiate Dictionary
(1979): A sloping way: as a sloping low walk or roadway leading from one
level to another. 3 FMSHRC at 1688 (emphasis added).

846

82-5-3

fact that "this 'ramp' was used to drive a piece of machinery back and
forth over the structure." 3 FMSHRC at 1688. Further, on the basis of
our decision in· Cleveland Cliffs Iron Co., 3 FMSHRC 291 (February 1981),
the judge rejected Capitol's argument that the standard applies only to
roadways with one outer bank. Accordingly, the judge concluded that
Capitol violated section 56.9-22 by failing to provide berms on the
ramp.
We affirm the judge's conclusion that the ramp at issue is an
elevated roadway within the meaning of the cited standard. Contrary to
Capitol's assertion, this conclusion does not require an impermissible
stretching of the standard. Rather, as indicated by the dictionary
definitions relied upon by the judge, the conclusion that some ramps'
are elevated roadways is rooted in common usage. Furthermore, in light
of the nature of the use of the ramp at issue and the purpose of the
cited standard, the conclusion flows from a common sense application of
the standard to the facts of record. Cf. Burgess Mining and Construction
Corp., 3 FMSHRC 296 (February 198l)(bridge is an elevated roadway);
El Paso Rock Quarries, Inc., 3 FMSHRC 35 (January 198l)(bench is an
elevated roadway). We also hold that the judge properly relied on our
decision in Cleveland Cliffs Iron Co. in rejecting the argument that 30
C.F.R. § 56.9-22 applies only to elevated roadways·with one outer bank.
Finally, we reject Capitol's argument that the presence of 30
C.F.R. §_ 56.9-63 precludes application of the cited standard. Section
56.9-63 provides:
Ramps and dumps should be of solid construction, of ample
width, have ample side clearance and headroom, and be kept
reasonably free of spillage.
"Elevated roadways" is a general descriptive term that encompasses
a variety of more specific applications. See Burgess, supra; El Paso,
supra. Although 30 C.F.R. § 56.9-63 further addresses certain safety
requirements for a particular type of elevated roadway, it does not
purport to exclusively set forth all safety requirements pertaining to
ramps. In particular, it does not address the obvious hazard of travelling over the elevated sides of a ramp, nor does it in any way suggest
that section 56.9-22's general requirement of berms on elevated roadways
is not applicable. In this situation we conclude that it is appropriate
to apply section 56.9-~2 to the ramp involved. See H.B. Zachry Co. v.
OSHRC, 638 F.2d 812, 8l7-818 (5th Cir. 1981).

847

Accordingly, the decision of the administrative law judge is
affirmed. !±_/

Capitol's pending motion to disregard the Secretary's brief is
denied.

!±_/

848

Distribution
Richard L. Reed, Esq.
Johnston, Krog & Vives
2900 Tower Life Building
San Antonio, Texas 78205
Leslie J. Canfield, Esq.
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Virgil Vail
FMSHRC
333 West Colfax Ave., Suite 400
Denver, Colorado 80204

849

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

May 5, 1982
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
.ADMINISTRATION (MSHA)
·•

Docket No. SE 79-46- M

v.
ALLIED PRODUCTS COMPANY
ORDER
In Allied Products Co. v. Federal Mine Safety and Health Review
Commission, No. 80-7935, 5th Cir. Unit B (February 1, 1982), rehearing
den. March ~' 1982, the court affirmed a final order of the Commission
finding that Allied Products violated three mandatory safety standards.
2 FMSHRC 2517 (ALJ, Sept. 1980). The court found, however, that the
penalties assessed were an abuse of discretion and remanded for further
proceedings "with instructions to recalculate the penalties based on the
existing record and on considerations outlined in this opinion." The
court's mandate was received by the Commission on April 9, 1982.
We need not address at this time the court's discussion of the
relationship between the Commission's statutory authority to assess
penalties (30 U.S.C. § 820(i)) and the Secretary of Labor's penalty
assessment regulations. 30 C.F.R. Part 100. Rather, we leave to the
administrative law judge the initial determination of the necessary and
appropriate action in light of the court's decision and remand.
Accordingly, the case is remanded to the administrative law judge
for further proceedings.

82-5-4

850

Distribution
Gilbert E. Johnston
Patricia Clotfelter
Johnston, Barton, Proctor, Swedlaw & Naff
1212 Bank for Savings Building
Birmingham, Alabama 35203
Ann Rosenthal
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge William Fauver
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

851

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

May 5, 1982

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

Docket Nos. VINC 78-11
78-12
78-13
78-14
78-15

v.
SAM KENNEDY d/b/a/ ENERGY
SALVAGE COMP ANY

IBMA 78-4
ORDER
The Secretary of Labor's unopposed motion for voluntary dismissal
of his appeal is granted.

Collyer,

852

82-5-5

Distribution
Linda Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd ..
Arlington, Virgini~ 22203
D. Michae~ Riva, Esq.
115 East Main Street
West Frankfort; Illinois

62896

Administrative Law Judge George Koutras
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

853

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

May 20, 1982

NATIONAL MINES CORPORATION

v.

Docket No. KENT 80-130-R

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

·oRDER
In Secretary of Labor v. Island Creek Coal Co., et al., Nos. 80-2405,
etc., D.C. Cir., April 27, 1982, the court remanded this case to the
Commission for further proceedings consistent with the court's decision
in UMWA v. FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23, 1982.
Accordingly, this case is remanded to the administrative law judge for
further proceedings consistent with the court's order.

854

82-5-10

National Mines Corp.
KENT 80-130-R
Distribution
Ann S. Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Robert L. Elliot, Esq.
Harbison, Kessinger, Lisle & Bush
400 Bank of Lexington Building
Lexington, Kentucky 40507
Harrison Combs, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge Richard Steffey
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

855

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

May 20, 1982

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

v.

Docket No. LAKE 80-142

SOUTHERN OHIO COAL COMPANY
ORDER
In Secretary of Labor v. Southern Ohio Coal Co., No. 81-2299,
D.C. Cir., April 27, 1982, the court remanded this case to the Commission for further proceedings consistent with the court's decision in
UMWA v. FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23, 1982.
Accordingly, the case is remanded to the administrative law judge for
further proceedings consistent with the court's order.

856

82-5-11

Southern Ohio Coal
LAKE 80-142
Distribution
Ann S. Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
David.M. Cohen, Esq.·
American Electric Power Service Corp.
P.O. Box 700
Lancaster, Ohio 43130
Administrative Law Judge Michael Lasher
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

857

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

May 20, 1982

VIRGINIA POCAHONTAS COMPANY

v.

Docket Nos. VA 79-131-R
VA 79-137-R

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ORDER
In Secretary of Labor v. Island Creek Coal Co., et al., Nos. 802405, etc., D.C. Cir., April 27, 1982, the court remandea-these cases
to the Commission for further proceedings consistent with the court's
decision in UMWA v. FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23,
1982. Accordingly, these cases are remanded to the administrative law
judge for further proceedings consistent with the court's order.

82-5-12

858

Vi;rgi.ni,a J>ocfihontas
VA 79-131-R
Distribution
Ann S. Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Marshall S. Peace, Esq.
Island Creek Coal Company
2355 Harrodsburg Road
P.O. Box 11430
Lexington, Kentucky 40575
Harrison Combs, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge Richard Steffey
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

859

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

May 20, 1982

RANGER FUEL CORPORATION

v.

Docket No. WEVA 79-218-R

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION(MSHA)
ORDER
In Secretary of Labor v. Ranger Fuel Corp., No. 81-1388, D.C. Cir.,
April 27, 1982, the court remanded this case to the Commission for
further proceedings consistent with the court's decision in UMWA v.
FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23, 1982. Accordingly,
this case is remanded to the administrative law judge for further
proceedings consistent with the court's order.

82-5-13

860

Ranger Fuel Corp.
WEVA 79-218-R
Distribution
Ann S. Rosenthal, E~q.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Donald R. Johnson
Ranger Fuel Corporation
Lebanon, Virginia 24266
Harrison Combs, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge Gary Melick
FMSHRC.
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

861

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

May 20' 1982

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of
Anthony E. Heriges,
Tom Antonini, Johnny Gibson and
Larry Haley,

Docket Nos.

KENT 80-14-D
KENT 80-15-D
KENT 80-22-D
KENT 80-23-D
KENT 80-42-D
KENT 80-52-D

v.
ISLAND CREEK COAL COMPANY
ORDER
In Secretary of Labor v. FMSHRC, No. 80-1350, D.C. Cir., April 27,
1982, the court remanded these cases to the Commission for further
proceedings consistent with the court's decision in UMWA v. FMSHRC, Nos.
79-2503, ~tc., D.C. Cir., February 23, 1982. Accordingly, the cases are
remanded to the chief administrative law judge for further proceedings
consistent with the court's order.

82-5-8

862

Island Creek
KENT 80-14-D
Distribution
Ann Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Marshall ·s. Peace, Esq.
Assistant Corporate Counsel
Island Creek Coal Company
2355 Harrodsburg Road
P.O. Box 11430
Lexington, Kentucky 40575
Chief Administrative Law Judge Paul Merlin
FMSHRC
1730 ~ Street, N.W.
Washington, D.C. 20006

863

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

May 20, 1982
ISLAND CREEK COAL COMPANY
v.

Docket Nos. KENT 79-216-R
WEVA 79-183-R
WEVA 79-184-R

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

Docket No.

WEVA 80-72

ISLAND CREEK COAL COMPANY
ORDER
In Secretary of Labor v. Island Creek Coal Co., No. 80-2201, D.C.
Cir., Aprii 27, 1982, the court remanded these cases to the Commission
for further proceedings consistent with the court's decision in UMWA v.
FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23, 1982. Accordingly,
the cases are remanded to the administrative law judge for further
proceedings consistent with the court's order.

864

82-5-9

Island Creek Coal
KENT 79-216-R
Distribution
Ann S. Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
William R. Bodell, II
Island Creek Coal Company
P.O. Box 11430
Lexington, Kentucky 40575
Harrison Combs, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge Gary Melick
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

865

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

May 20, 1982
ISLAND CREEK COAL COMPANY
v.

Docket No. VA 79-74-R

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

Docket No. VA 80-9

ISLAND CREEK COAL COMPANY
ORDER
In Secretary of Labor v. Island Creek Coal Co., et al., Nos. 802405, etc., D.C. Cir., April 27, 1982, the court remanded these cases
to the Commission for further proceedings consistent with the court's
decision in UMWA v. FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23,
1982. Accordingly, the cases are remanded to the administrative law
judge for further proceedings consistent with the court's order.·

866

82-5-14

Island Creek Coal
VA 79-74-R

Distribution
Ann S. Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia · 2221_; 3
Marshall S •. Peace, Esq.
Island Creek Coal Compan,P.O. Box 11430
Lexington, Kentucky 405/5
Joyce A. Hanula

UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge Richard Steffey
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia -'2203

1

86 1'

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

May 20, 1982
ISLAND CREEK COAL COMPANY
Docket Nos.

and
VIRGINIA POCAHONTAS COMPANY

VA 79-61-R
VA 79-62-R
VA 79-63-R

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
UNITED MINE WORKERS OF AMERICA
ORDER
In Secretary of Labor v. Island Creek Coal Co., et al., No. 801859, D.C. Cir., April 27, 1982, the court remanded these cases to the
Connnission for further proceedings consistent with the court's decision.
in UMWA v. FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23, 1982.
Accordingly, the cases are remanded to the administrative law judge for
further proceedings consistent with the court's order.
'

A. E. Lawson,~mmissioner

868

82-5-15

Virgini~ Pocahontas
VA 79-61-R

Distribution
Ann S. Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
William K. Bodell, II
Virginia Pocahontas Company
P.O. Box 11430
Lexington, Kentucky 40575
Administrative Law Judge George Koutras
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

869

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

May 20, 1982

ISLAND CREEK COAL COMPANY

v.

Docket No. WEVA 79-242-R

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ORDER
In Secretary of Labor v. FMSHRC, No. 80-1630, D.C. Cir., April 27,
1982, the court remanded this case to the Commission for further proceedings consistent with the court's decision in UMWA v. FMSHRC, Nos.
79-2503, etc., D.C. Cir., February 23, 1982. Accordingly, the case
is remanded to the chief administrative law judge for further proceedings consistent with the court's order.

A. E. Lawso', Commissioner

i

870

82-5-16

Island Creek Coal
WEVA 79-242-R
Distribution
Ann S. Rosenthal, Esq.
Office of the Solici.tor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
William K. Bodell, II
Island Creek Coal Company
P.O. Box 11430
Lexington, Kentucky 40575
Harrison Combs, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005
Chief Administrative Law Judge Paul Merlin
FMSHRC
1730 K Street, N.W.
Washington, D.C. 20006

871

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

May 20, 1982

PRINCESS SUSAN COAL COMPANY

v.

Docket No. WEVA 79-423-R

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ORDER
In Secretary of Labor v. FMSHRC, No. 80-1449, D.C. Cir., April 27,
1982, the court remanded this case to the Commission for further proceedings consistent with the court's decision in UMWA v. FMSHRC, Nos.
79-2503, etc., D.C. Cir., February 23, 1982. Accordingly, the case is
remanded to the administrative law judge for further proceedings consistent with the court's order.

872

82-5-17

Princess Susan Coal
~VA. 79""423..-R
Distribution
Ann S. Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
C. Lynch Christian, Esq.
Jackson, Kelly, Holt & O'Farr~ll
P.O. Box 553
Charleston, West Virginia 25322
Harrison Combs, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge Gary Melick
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

873

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

May 20, 1982

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
Arnold J. Sparks, Jr.
v.

Docket No. WEVA 7.9-148-D

ALLIED CHEMICAL CORPORATION
ORDER
On February 23, 1982, the United States Court of Appeals for the
D.C. Circuit issued its decision in this case·reversing the decision of
the Commission and remanding for further proceedings. UMWA v. FMSHRC,
Nos. 79-2503, etc., D.C. Cir. (consolidated cases). Accordingly, we
remand to the administrative law judge for further proceedings consistent
with the court's decision.

874

82-5-18

Allied Chemical
WEVA 79-148-D
Distribution
Ann S. Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Marshall C. Spradling, Esq.
Spillman, Thomas, Battle & Klostermeyer
P.O. Box 273
Charleston, West Va. 25321
Harrison Combs, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge Joseph Kennedy
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

875

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

May 20, 1982

RANGER FUEL CORPORATION,

v.

Docket No. WEVA 79-217-R

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ORDER
In Secretary of Labor v. Island Creek Coal Co., et al., Nos.
80-2405, etc., D.C. Cir., April 27, 1982, the court remanded this case
to the Commission for further proceedings consistent with the court•s
decis.ion in UMWA v. FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23,
1982. Accordingly, this case is remanded to the chief administrative
law judge for further proceedings consistent with the court's order.

876

82-5-19

Ranger Fuel Corp.
WEVA 79-217-R
Distribution
Ann S. Rosenthal, Eaq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Fletcher A. Cooke, Esq.
Ranger Fuel Corporation
Lebanon, Virginia 24266
Harrison Combs, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005
Chief Administrative Law Judge Paul Merlin
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

877

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

May 20, 1982

KENTLAND-ELKHORN COAL
CORPORATION,
v.

Docket No. PIKE 78-399

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

UNITED MlNE WORKERS OF AMERICA
ORDER
On February 23, 1982, the.United States Court of Appeals for the
D.C~ Circuit issued its decision in this case reversing the decision of

the c6mmission and remanding for further proceedings. UMWA v. FMSHRC,
Nos. 79-2503, etc., D.C. Cir. (consolidated cases). Accordingly, we
remand to the administrative law judge for further proceedings consistent with the court's decision.

878

82-5-20

Distribution
Ann S. Rosenthal, Esq.
Office of the Solicitor
U.S.Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
C.Lynch Christian, Esq.
Jackson, Kelly, Holt & O'Farrell
P.O. Box 553
Charleston, West Virginia 25322
Harrison Combs, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005

~

Administrative Law Judge Michael Lasher
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

879

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

May 20, 1982

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

Docket No. PITT 79-11-P

THE HELEN MINING COMPANY
ORDER
On February 23, 1982, the United States Court of Appeals for the
D.C. Circuit issued its decision in this case reversing the decision of
the Commission and remanding for further proceedings. UMWA v. FMSHRC,
Nos. 79-2503, etc., D.C. Cir. (consolidated cases). Accordingly, we
remand to the administrative law judge for further proceedings consistent with the court's decision.

880

82-5-21

Distribution
Ann Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Todd Peterson, Esq.
Crowell & Moring
1100 Connecticut Ave,, N.W.
Washington, D.C. 20036
Harrison Combs, Esq.

UMWA
900 15th St., NW
Washington, D.C.

20005

Chief Administrative Law Judge Paul Merlin
FMSHRC
1730 K Street, N.W.
Washington, D.C. 20006

881

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

May 26, 1982

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEST 81-163
WEST 81-164

v.
MEDICINE BOW COAL COMPANY

DECISION
This consolidated case on interlocutory review involves two civil
penalty proceedings arising under section llO(a) of the Federal Mine
Safety and Healtµ Act of 1977, 30 U.S.C. § 801 et seq. (Supp. III 1979).
The issue is whether the Secretary's admitted failure to file his
penalty proposals in the two proceedings below within the 45-day period
prescribed by Commission Rule 27, 29 C.F.R. § 2700.27, required dismissal of the cases. For the reasons discussed below, we affirm the
administrative law judge's conclusion that under the test announced in
Salt Lake County Road Department, 3 FMSHRC 1714 (1981), dismissal was
not warranted on the facts present in this record.
The facts are not disputed. In the first case (Docket No. WEST 81163), an MSHA inspector issued five citations to Medicine Bow Coal
Company during the period June 24, 1980, through August 12, 1980. l./ In
the second case (Docket No. WEST 81-164), the same MSHA inspector issued
Medicine Bow another citation on August 26, 1980. 2/ On December 22,
1980, Medicine Bow received the Secretary's proposed assessments in both
cases for the six citations. Medicine Bow timely sent the Secreta.ry
notices of contest by certified mail in both cases. According to the
certified mail return receipts, the notice of contest in the first case
was received in the Secretary's Denver, Colorado Assessment Office on
January 19, 1981, and the notice in the second case was received on
January 20, 1981.
1/
The citations charged violations of various regulations applicable
to surface coal mining operations. One citation alleged a violation of
30 C.F.R. § 77.504 (damaged insulation on electrical equipment); another
alleged a violation of 30 C.F.R. § 77.603 (improper clamping of trailing
cables); and three alleged violations of 30 C.F.R. § 77.1104 (accumulations of combustible material).
'.!:_/
This citation alleged a violation of 30 C.F.R. § 77.1605(b) (inadequate
brakes for mobile equipment).

882

82-5-27

On February 2, 1981, the Secretary sent copies of both notices of
contest to the Commission's Washington, D.C. office, and on February 9,
1981, the Commission assigned docket numbers to the two cases. (Commission Rule 26, 29 C.F.R. § 2700.26, requires the Secretary to
"immediately transmit to the Commission the notice .of contest, at which
time a docket number will be assigned and all parties notified.") On
March 20, 1981, the Secretary mailed his penalty proposals in both cases
to the Commission, and the documents were received on March 23, 1981. '}_/
In relevant part, Commission Rule 27 provides:
(a) When to file. Within 45 days of receipt of a timely
notice of contest of a notification ~r proposed assessment of
penalty, the Secretary shall file a proposal for a penalty
with the Commission.
Applying Rule 27 and with January 19 and 20, 1981, as the respective
dates on which the Secretary received Medicine Bow's notices of contest,
the Secretary's penalty proposals were due to be filed on March 5, 1981,
in the first case, and March 8, 1981, in the second. 4/ Since the
Secretary filed on March 20, 1981 (n. 3 below), his proposals were a
maximum of 15 days late.
In both:cases, Medicine Bow filed motions fer dismissal with the
judge based on the late filing of the Secretary's penalty proposals. In
separate orders issued on August 7, 1981, the judge denied the motions
on the basis of our decision in Salt Lake, which was issued on July 2~,
1981, after all the relevant filings had occurred in these two cases.

ll

The certificates of service and envelopes used for mailing reflect
that the Secretary apparently mailed the penalty proposals by certified
mail, although the return receipts are not included in the formal files.
The judge found that there was "no indication in the file" that the
Secretary had sent the proposals by certified mail, and treated the
documents as having been filed on March 23, 1981, when they were
received by the Commission. We give the Secretary the benefit of the
doubt in this matter and treat his proposals as having been filed on
March 20, 1981, when they were apparently sent by certified mail. See
Commission Rule 5(d), 29 C.F.R. § 2700.5(d) (as relevant here, filing is
effective upon receipt or upon mailing by certified or registered mail,
return receipt requested). In any event, the three-day difference in
the filing date does not affect our resolution of this case.

!!:_/
The filing date in the second case was actually Saturday, March 6,
1981, but Commission Rule 8(a), 29 C.F.R. § 2700.8(a), would move the
due date to the following Monday.

883

This case basically involves a straightforward application of Salt
Lake to the relevant facts. Nevertheless, there are a few preliminary
matters on computation of time and the Secretary's response to Salt Lake
which we address before moving to the major analysis.
We affirm the judge's determination that the Secretary will be
deemed to have received a notice of contest sent by certified or
registered mail on the date indicated on the return receipt (in this
case, January 19 and 20). ii We disagree with the judge, however, that
the filing time for penalty proposals is augmented by the 5 days that
Commission Rule 8(b), 29 C.F.R. § 2700.8(b), allows for filing documents
in response to those served by mail. On review, the Secretary disavows
reliance on this 5-day bonus period. Br. 8 n. 4. The 45-day period in
Rule 27 is a sufficient amount of time tO. allow for the processing of
mail. We fear that further delay would be the inevitable by-product of
reading Rule 8(b) into Rule 27. We hold, therefore, that Rule 8(b) does
not apply to the Secretary's filing of penalty proposals.
In his brief to us, the Secretary states that "the test established
in Salt Lake reflects the appropriate factors which an administrative
law judge should consider in deciding whether or not to accept a latefiled proposal for penalty." Br. 6. However, the Secretary takes issue
with a major premise of Salt Lake--namely, that Commission Rule 27
"implements" the statutory directive in section 105(d) of the Mine Act
that "the Secretary shall immediately advise the.Commission of [a notification of contest of penalty], and the Commission shall afford an opportunity
for hearing." See Salt Lake, 3 FMSHRC at 1715. The Secretary contends
that he satisfies this statutory directive by complying with Commission
Rule 26, which, as noted above, requires the Secretary after receipt of
a notice of contest to "immediately transmit" the notice to the Commission
so that a docket number can be assigned.

2f

We fully endorse the judge's rejection of the Secretary's argument
that the date on which such documents are internally stamped "received"
should be the notification date. As he stated:
The purpose of sending a document by certified mail is to
provide the sender confirmation of its receipt by the proper
party and the date of receipt. This is the only date the mine
operator has notice of and upon which it can base any subsequent
actions.
The Secretary's statement that it must rely on [internal
bureaucratic processing of the mail] does not support its
position. Mine operators as well could contend that they have
various off ice procedures upon which they must rely that may
delay the actual receipt of a notice from the government by
the individual charged with the responsibility of responding
to that document. The law has traditionally recognized the
date on the return receipt as evidence of the date a document
was received. I see no reason to give special consideration
to the bureaucratic procedures of the government.
(Footnote continued)

884

The Secretary takes too narrow a view of the relationship of Rules
26 and 27 to section 105(d). As developed in Salt Lake, Congress'
overriding concern in enacting section 105(d) was providing for prompt
penalty enforcement. To effectuate that goal, the Secretary has two
related duties under Commission rules after receiving a notice of
contest: notifying the Commission's docket office in order that a
docket number can be assigned, and filing his penalty proposal so that
the crucial stage of the pleading process is started, leading to the
hearing that the Commission must provide under section 105(d). That
hearing requires more than a docket number; it requires the filing of a
penalty proposal as an essential pleading. Both procedural steps are a
form of "notification," one for clerical purposes, and the other for
pleading purposes; both implement the Mine Act's mandate for prompt
penalty assessment. If the Secretary believes that his clerical notice
to the docket office under Rule 26 is sufficient for "notification of
the Conunission," that may well explain the delays in filing penalty proposals. We accordingly reject the Secretary's position. We now turn to
the issue of whether the judge properly refused to dismiss the cases.
The judge correctly interpreted Salt Lake as creating a two-part
test. Salt Lake first established that the Secretary must show adequate
cause for any delayed filing. 3 FMSHRC at 1715-17. The Secretary's
excuse here is basically the same one accepted as minimally adequate in
Salt Lake: insufficient clerical help. The excuse was presented in more
detail in these cases, and considerably less delay was involved than in
Salt Lake. The significant operative events in the two proceedings
below occu~red prior to our warning in Salt Lake and, thus, the Secretary
did not have the benefit of those views when the late filings occurred.
Had the delay occurred after our admonition in Salt Lake, our conclusion
as to whether adequate cause was established might be different. §_/
We also held in Salt Lake that adequate cause notwithstanding,
dismissal could be required where an operator demonstrates prejudice
caused by the delayed filing. 3 FMSHRC at 1715-18. Medicine Bow has
shown no specific claim of prejudice such as missing witnesses, or
lateness so great as to unduly delay a hearing. Medicine Bow's argument
that during the pend.ency of the case it is effectively forced to comply
with MSHA's interpretation of standards and that the citations are
carried on MSHA's records, presents nothing more than the unavoidable
consequences of a contested citation faced by all operators. As the
judge reasoned, the relatively short delay here did not result in any
significantly later hearing, and if Medicine Bow wanted expedited proceedings, it should have so moved. In short, Medicine Bow has failed
fn. ~ continued
The Secretary did not press this argument on review. The Secretary also
states that steps have been taken to improve the internal mail routing
of notices of contest--a development that we hope augurs well for
increased efficiency in processing penalty cases.
6/
We reject the suggestion in the Secretary's brief that unless his
delayed filing is caused by "significant malfeasance," a penalty proceeding should not be dismissed absent prejudice to the operator. Our
test is adequate cause, not absence of malfeasance, significant or
otherwise.

885

to show a delay so great that preparation or presentation of its case
was prejudiced.
On the basis set forth above, we affirm the judge. We vacate our
stay pending interlocutory review, and remand these cases to the judge
for further proceedings.

886

Distribution
Ann S. Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Brent L. Motchan, Esq.
Medicine Bow Coal Company
500 North Broadway
St. Louis, Missouri 63102
Administrative Law Judge John Morris
FMSHRC
333 West Colfax Ave., Suite 400
Denver, Colorado 80204

887

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMinISTRATION (MSHA),
ex rel Phillip Dennis Irvin,
et al.,
Applicants

MAY 3 1982

Complaint of Discharge,
Discrimination, or Interference
Docket No. LAKE'82-5-D
Eagle No. 2 Mine

v.

PEABODY COAL COMPANY,
Respondent
DECISION
Appearances:

Rafael Alvarez, Esq., Office of the Solicitor, U.S.
Department of Labor, Chicago, Illinois, for Complainants;
Thomas R. Gallagher, Esq., and Hichael 0. McKown, Esq.,
St. Louis, Missouri, for Respondent.

Before:

Administrative Law Judge Broderick
STATEHENT OF THE CASE

This proceeding is an action brought by the Secretary of Labor on
behalf of 70 miners employed in February 1981 at Respondent's Eagle
No. 2 Mine alleging that the named miners were discriminated against in
violation of section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 ~~· Pursuant to notice, a hearing was held in
St. Louis, Missouri, on February 18, 1982. Forrest A. Younker was
called as an adverse witness by Applicants and Ownly Franklin Williams,
Phillip Dennis Irvin, William Henry Gibson and Narnie E. Nangle testified on behalf of Complainants. Forrest A. Younker testified on behalf
of Respondent. The parties agreed that the depositions of Narnie E.
Nangle, Robert Walker and Hike Wolfe may be received as evidence.
Sixteen joint exhibits were admitted, and 2 additional exhibits were
offered by Applicants and admitted. Posthearing bLiefs were filed by
both parties.
Based on the entire record and considering the contentions of the
parties, I make the following decision:

889

Findings of Fact
1. At all times pertinent to this decision, Respondent was the
operator of ~n underground coal mine in Gallatin County, Illinois,
known as the Eagle No. 2 Mine. Respondent is a large operator.
2.

The Complainants herein were miners employed at the Eagle No. 2

Mine.
3. There were three shifts in the subject mine, denominated A, B,
and C. The hours were 8 a.m. to 4 p.m., 4 p.m. to 12:01 a.m. and
12:01 a.m. to 8:00 a.m. respectively.
4. Three shower room facilities were maintained at the mine, one
for male employees, one for female employees and one for foremen.
5. The male employee's shower room was approximately 40 feet long,
12 feet wide and 7 feet high. The floor and walls were concrete. There
were two doors and no windows. On February 12, 1981, there were three
flourescent lights in the room suspe.nded from a metal ceiling, each
with two bulbs, a metal casing and a plexiglass bottom. There were four
ventilation fans and two floor drains with metal grates. There were
approximately 25 to 30 shower heads.
6. Above the shower room on a metal floor was a 3,000 gallon
water tank and four electrically operated water heaters.

7. On February 12, 1981, during the C shift (12:01 a.m. to
8:00 a.m.), a leak developed in the hot water tank. Repairs were begun
on the tank before 8:00 a.m., and hot water was not available for the
C shift employees. The employees on the A shift were assured that the
tank would be repaired prior to the completion of their shift, and
entered the mine on the basis of that assurance. The tank was repaired
about 10:00 a.m. but developed another leak at about 11:00 a.m. This
leak could not be repaired without completely draining the tank and
making showers unavailable for both the A and B shift employees. A
trough was made to drain the leaking water down through the roof into
the shower room.
8. The leaking water entered the fluorescent light fixtures at
the north end of the room. Water collected in the fixture and dripped
down on to the floor of the shower room. The wire was cut to the light
but the power remained on.
9. Rep~esentatives of the miners were concerned about the danger
involved to those who might shower in these circumstances and had a
meeting with mine management, commencing at about 3:55 p.m., February 12.
The B shift employees did not enter the mine at the beginning of the
B shift because of this controversy.

890

10. The Hine Superintendent and the Representatives of the miners
discussed some alternative solutions to the problem: (1) drain the tank
in order to repair it. However, this would make the shower unavailable
to all the employees on the three shifts. (2) Use the female employees'
and foremens' shower rooms. However this would provide only 11 showerheads for 77 employees on the B shift. (3) Cut off the power and
install a temporary lighting system using cap lamps. The third alternative was proposed by the Superintendent to the employee representatives
but they rejected it and called State and Federal inspectors.
11. The State inspector arrived at the mine at about 6:00 p.m.
He found some "irregular things" in one of the heaters which were
repaired immediately. He stated to the miners representatives that
he saw nothing wrong in using temporary lighting in the shower room
until t;-he tank was repaired on the weekend.
12. The miners on the B crew were not satisfied, refused to go
to work and left the mine premises.
13. A federal inspector arrived at the mine at about 10:30 p.m.
At that time the power had been cut off to the flourescent lights and
certain conditions respecting the heater had been or were being taken
care of. The federal inspector stated that he would have no objection
to the use of battery operated cap lamps to provide light for the
shower room.
14. Complainant William Gibson who worked on the C shift rode to
work with five other employees from their homes in Kentucky (about
80 miles or more to the mine). Because the shower room was not available
the previous morning, Gibson called the mine office before leaving for
work on January 12 (he was to work 12:01 to 8:00 on January 13) and
was assured that the tank would be repaired in time for his shift.
15. When Mr. Gibson and his crew arrived at the mine, the tank
was still being worked on, and the lights in the shower room were off.
Because he objected to these conditions, Mr. Gibson and eight others
from the C shift (calling themselves "the boys from Kentucky") refused
to go underground and went home "for safety reasons."
16. The other members of the C shift worked their regular shift
and took showers afterwards using camp lamps for lighting.
17. The employees on Band C shifts were not paid for the shift
in which they refused to work. Each also received a letter of warning
of disciplinary action.

891

18. William Gibson received a written notice of suspension with
intent to discharge.
19. Gibson filed a grievance which went to arbitration.
was reinstated pursuant to an arbitrator's award.

Gibson

20. Prior to the hearing in this case, the letters of discipline
issued to the Complainants herein were rescinded and removed from
their employment records.
STATUTORY PROVISION
Section 105(c)(l) of the Act provides:
(c)(l) No person shall discharge or in any manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, representative of miners or applicant for employment in any
coal or other mine subject to this Act because such
miner, representative of miners or applicant for employment has filed or made a complaint under or related to
this Act, including a complaint notifying the operator
or the operator's agent, or the representative of the
miners at the coal or other mine of an alleged danger
or safety or health violation in a coal or other mine,
or because such miner, representative of miners or
applicant for employment is the subject of medical
evaluations and potential transfer under a standard
published pursuant to Section 101 or because such miner,
representative of miners or applicant for employment
has instituted or caused to be instituted any proceeding under or related to this Act or has testified or is
about to testify in any such proceeding, or because of
the exercise by such miner, representative of miners or
applicant for employment on behalf of himself or others
of any statutory right afforded by this Act.
ISSUES
1. Were Applicants disciplined by Respondent for activity
protected under the :t-iine Act?
2.

If so, what is the remedy for the violation?

892

CONCLUSIONS OF LAH
1. Respondent is subject to the provisions of the Federal Mine
Safety and Health Act of 1977, and the undersigned has jurisdiction
over the parties and subject matter of this proceeding.

2. Applicants, miners on the B and C shifts, failed to establish
that their refusal to perform work on February 12 and 13, 1981,
resulted from a reasonable, good faith belief that it was hazardous to
do so.
DISCUSSION
Refusal to perform work is protected under section 105(c)(l) of the
Act if it results from a good faith belief that the work involves safety
hazards, and if the belief is a reasonable one. Secretary of Labor/Pasula
v. Consolidation Coal Co., 2 FMSHRC 2736, 2 BNA MSHC 1001 (1980), rev'd
on other grounds sub nom Consolidation Coal Co. v. Marshall,
F.2d
(3rd Cir. 1981);-Secretary of Labor/Robinette v. United Castle Coal
Co., 3 FHSHRC 803, 2 BNA MSHC 1213 (1981). I conclude that the objections
raised by the B shift miners to showering in a room where water was
running through electric light fixtures were reasonable and were made in
good faith. Respondent concedes that at that time the miners had a good
faith reasonable belief of the possibility of a shock hazard. However,
Respondent offered an alternative, i.e., cutting off the electricity and
using temporary lighting in the form of cap lamps. This proposal
removed the potentially dangerous condition and provided shower facilities which were adequate. The State mine inspector stated that he could
see nothing wrong with the proposed temporary lighting. The refusal of
the B shift employees to work under these circumstances became at that
point unreasonable and therefore was not protected by the Act. See
Secretary/Bennett v. Kaiser Aluminum and Chemical Corporation, 3 FMSHRC
1539 (1981). The electricity had been removed from the fluorescent
lights and the water heater was being repaired at the time the C shift
employees refused to go into the mine. Both the State and Federal
inspectors had indicated that the condition was no longer a hazard. I
conclude that the refusal of the miners on the C shift to go to work
was unreasonable and not protected under the Act.
3. The failure of Respondent to pay Applicants for the time they
did not work on February 12 and 13, 1981, was not a violation of section
105(c)(l) of the Act.

893

ORDER
Based on the above findings of fact and conclusions of law IT IS
ORDERED that this proceeding is DISMISSED.

~'[,LJ§ .k&v~.f/~(_~

J
Distribution:

James A. Broderick
Administrative Law Judge

By certified mail

Rafael Alvarez, Esq., Office of the Solicitor, U.S.
230 South Dearborn, 8th Floor, Chicago, IL 60604

Depa~tment

Thomas R. Gallagher, Esq., Peabody Coal Company, P.O. Box 235,
St. Louis, MO 63166

894

of Labor,

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

VICTOR McCOY,
Complainant

MAY 11 \982

Complaint of Discharge,
Discrimination, or Interference

v.
Docket No. PIKE 77-71
CRESCENT COAL COMPANY,
CRESCENT INDUSTRIES,
INTERNATIONAL MINERALS AND
CHEMICALS CORPORATION (IMC),
Respondents
ORDER APPROVING SETTLEMENT AGREEMENT
On September 28, 1981, I issued a decision in this proceeding in
which I found that Complainant was discharged by Respondent on
April 22, 1977, in violation of section llO(b) of the Coal Hine Safety
Act of 1969. I ordered that Respondent Crescent Coal Company offer
Complainant reinstatement in the position from which he was discharged;
that Respondent pay him back pay with interest thereon from the date of
discharge until he is offered reinstatement; and that Respondent
Crescent pay a reasonable attorney's fee for services rendered by
counsel for Complainant.
Pursuant to notice, a hearing was called on May 4, 1982, in
Pikeville, Kentucky, for the purpose of receiving evidence on the issues
of the amount of Complainant's entitlement to back pay and attorneys
fees.
After the commencement of the hearing, the parties agreed to
settle Complainant's claims and stated their agreement on the record
as follows:
1. Respondents agree not to seek review of my
decision of September 28, 1981, on the merits of the
Complainant.
2. Reinstatement will not be provided or offered
Complainant.
3. Respondents shall pay to Complainant Victor McCoy
the sum of $55,000 in full settlement of his claim for
back wages and interest resulting from his discharge on
April 22, 1977.

895

4. Respondents shall pay to Complainant and his
attorneys the sum of $45,000 in full settlement of their
claim for reimbursement of attorneys fees and expenses of
li~igation in this proceeding.
5. The rights of Respondents among themselves as to
the amounts due hereunder are not determined by this order.
The agreement was explained to Complainant on the.record and he
expressed his understanding of it, and his agreement to its terms.
Having duly considered the matter, I conclude that the agreement is in
the best interest of Complainant and serves the purposes of the Act.
Therefore, IT IS ORDERED that the settlement agreement is APPROVED.
IT IS FURTHER ORDERED
1. that Complainant has no right to reinstatement, under
paragraph 1 of my order of September 28, 1981, or otherwise.
2. Within 40 days of the date of this order, Respondent shall pay
the sum of $55,000 to Complainant as back wages and interest due under
paragraph 2 of my order of September 28, 1981.
3. Within 40 days of the date of this order, Respondent shall pay
the sum of $45,000 to Complainant and his attorneys as attorneys fees
and expenses due under paragraph 3 of my order of September. 28, 1981.
4. Upon payments of the amounts recited in paragraphs numbered
2 and 1 above, Complainant will have no further claim under the Coal
Mine Safety Act of 1969 against Respondents arising out of his discharge
on April 22,· 1977.
5. The rights of Respondents as among themselves are not
determined by this order.

1tf/VJ1L-5

~

Distribution:

fl43a-'ck-vz e/C,

James A. Broderick
Administrative Law Judge

By certified mail

Stephen A. Sanders, Esq., Appalachian Research & Defense Fund of
Kentucky,_JI!_c., 205 Front Street, Prestonsburg, KY 41653
Tony Oppegard, Esq., Appalachian Research & Defense Fund of Kentucky,
Inc., 104 Morgan Street, P.O. Box 360, Hazard, KY 41701
David C. Stratton, Esq., Stratton, May and Hays, P.O. Drawer 851,
Pikeville, KY 41501
Dan Jack Combs, Esq., Combs and Lester, P.S.C., 207 Caroline Avenue,
Pikeville, KY 41501

896

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

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

)
)

)

CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. WEST 80-458-M

)

v.

)

MSHA Case No. 42-00472-05006 F

)

F & F MENDISCO MINING COMPANY,

)

Mine: Rim Columbus

)

)
Respondent.
~~~~~~~~~~~~~~~~>

Appearances:
James H. Barkley, Esq., and
Katherine Vigil, Esq.
Office of Henry C. Mahlman, R~gional Solicitor
United States Department of Labor, Denver, Colorado
For the Petitioner
Gary Cowan, Esq.
Grand Junction, Colorado
For the Respondent
Before: Judge John J. Morris
DECISION
The Secretary of Labor, on behalf of the Federal Mine Safety and
Health Administration, (MSHA), charges respondent, F & F Mendisco Company,
(Mendisco)i with violating Title 30, Code of Federal Regulations, Section
57.12-13, _/ a safety regulation adopted under the Federal Mine Safety
and Health Act, 30 U.S.C. 801 ~~·

1/ 57.12-13 Mandatory. Permanent splices and repairs made in power
cables, including the ground conductor where provided, shall be: (a)
Mechanically strong with electrical conductivity as near as possible to
that of the original; (b) Insulated to a degree at least equal to that of
the original, and sealed to exclude moisture; and, (c) Provided with damage
protection as near as possible to that of the original, including good
bonding to the outer jacket.

897

After notice to the parties P hearing on the merits was held in Grand
Junction, Colorado on August 18, 1981.
ISSUES
The threshold issue is whether respondent, as the lessee mine
operator, can prevail on the defense that he was an independent contractor in relation to the owner of the property. 1:/
Additional issues are whether respondent violated the regulation, and,
if so, what penalty is appropriate.
SUMMARY OF THE EVIDENCE
Jackie Lewis Garrison, in his 19th year, died on the third day of
employment with the Mendisco Company (Tr. 47, 50, 51, P16). On the fateful
day Garrison was working alone as the grizzly man at the bottom of a two
compartment shaft (Tr. 8, 47, 48). The electrocution occurred on the
landing in the sump of the mine. A cable carrying 460 volts supplied power
to the pump (Tr. 8).
The inspection took place on the day of the fatality. The MSHA
inspector observed a bad splice with an exposed lead just below the tie
down wire (Tr. 10, 12). There was water on the splice and very little
insulation (Tr. 20, 21). If a·person contacted the hot lead he would be
exposed to 220 volts (Tr. 24). Drawings, photographs of the area, and the
defective splice were received in evidence (Exhibits P2-P14).
MSHA witness Craig Miller, an electrical engineer, testified in
detail. He dissected the bad splice and concluded that a person could be
electrocuted if.he contacted .the energized wire (Tr. 68, 69). The wires in
the splice were corroded and merely twisted together in a knot (Tr. 72).
After visiting the site witness Miller determined that Garrison was
electrocuted in this fashion: when he climbed down into the sump he leaned
against the ladder and with the wire rope from the tugger motor wrapped
around his left wrist he was exposed to the conductor. The wire rope would
have ridden down the cable to the bad splice (Tr. 79-80, 91, 98).

!:./

In Cathedral Bluffs Shale Oil Company, WEST 81-186-M, an unrelated
case decided this date, the mine owner, retaining project control by
contract, defends on the basis that the liability lies with its independent
contractor.

898

John Renowden, an MSHA electrical inspector, as well as a journeyman
electrician, inspected the site. He tested all of the electrical systems
related to the pump motor. Renowden also concluded that the tugger cable
came in contact with the bad splice (Tr. 110-111).
Respondent Mendisco leases this mine from Atlas MineTals (Atlas) (Tr.
28, 30, 37, 47). Mendisco does the mining and Atlas has agreed to install
and maintain the electrical system (Tr. 130, 131, 134, 147, 148, R3).
If Mendisco had an electrical problem they would contact Atlas to
remedy it. MSHA found no evidence that Mendisco knew of the bad splice
(Tr. 41, 49).
DISCUSSION
Mendisco asserts, as a threshold matter, that it is not responsible
for the defective wiring. The defense pivots on the basis that Mendisco is
an independent contractor as to Atlas. It further relies on its agreement
with Atlas and argues that Atlas and not Mendisco should have been cited.
Mendisco further relies on the Secretary's guidelines relating to
independent contractors.
The independent contractor cases arise in the Conunission decision of
Republic.Steel Corporation, 1 FMSHRC S, and its progeny. Generally such
cases arise when the Secretary seeks to impose a penalty on a mine operator
for an act performed by the operator's independent contractor. Cf U.S.
Steel Corporation, 4 FMSHRC 163, (February 1982).
Mendisco's reliance on the doctrine is misplaced. In this factual
setting Mendisco was the mine operator. It did the mining, its employees
were exposed and it could have eliminated the hazard. In these circumstances Mendisco's legal relationship with Atlas is not relevant nor is
it a defense.
The recent Conunission decision of Phillips Uranium Corporation, CENT
79-281-M (April 27, 1982) is not applicable here. The Phillips doctrine is
limited by two factors. These are, first, the owner is not in violation of
the Act where he has retained an independent company with experience and
expertise in the activity beirig undertaken, and, two, where the employees
of the owner do not perform any work other than to observe the progress of
the work to assure compliance with quality control and contract specifications (slip op. 1, 2).
Mendisco further contends that the electrocution could not have
occurred as outlined by MSHA's evidence. This contention rests in part on
Felix Mendisco's testimony concerning the positioning of the wire tugger
cable and a likelihood that the cable could not contact the defective
splice. I am not persuaded. At the time of the accident MSHA experts

899

considered several theories of how the electrocution occurred. However, at
trial, both experts concurred in their views. Their expertise is apparent,
one is an electrical engineer and the other a journeyman electrician. I
find the electrocution occurred in the same fashion as contended by the
MSHA experts.
CIVIL PENALTY
Section llO(i) of the Act [30 U.S.C. 820(i)] provides as follows:
The Commission shall have authority to assess all civil penalties
provided in this Act. In assessing civil monetary penalties, the
Commission shall consider the operator's history of previous violations,
the appropriateness of such penalty to the size of the business of the
operator charged, whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of the violation,
and the demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation.
The Secretary proposes a civil penalty of $4,000 for this violation.
In reviewing the statutory criteria I note that the facts favorable to
Mendisco include the lack of any prior violations and the company's small
size (Tr. 48, 126). The negligence and gravity are apparent. I hesitate
to assess the proposed penalty since it appears that a $4,000 penalty would
be unduly burdensome on the company. On the other hand, the purposes of
the Act require a substantial penalty to alert at least this company that
the safety and health of miners must have a high priority in the Company's
activities. In sum, and in view of the statutory criteria, I conclude that
a penalty of $1,000 is appropriate.
Based on the foregoing findings of fact and conclusions of law I enter
the following
ORDER
1.

Citation 336665 is affirmed.

2.

A penalty of $1,000 is assessed.

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

Law Judge

900

Distribution:
James H. Barkley, Esq.
Katherine Vigil~ .sq.
Office of the Solicitor
United States Department of Labor
1585 Federal Build~ng
1961 Stout Street
Denver, Colorado ~0294
Gary Cowan, Esq.
P.O. Box 2540
Grand Junction, Colorado

81S02

901

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

MA'< i 2 \98?
SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 81-186-M

v.

A/C No. 05-03140-05005

CATHEDRAL BLUFFS SHALE OIL COMPANY,

Mine: Cathedral Bluffs Shale

Respondent,
Appearances:
James H. Barkley, Esq., and
Katherine Vigil, Esq.
Office of Henry C. Mahlman, Regional Solicitor
United States Department of Labor
Denver, Colorado 80294
For the Petitioner
James M. Day, Esq.
Cotten, Day and Doyle
Washington, D.C. 20036
For the Respondent
Before: Judge John J. Morris
DECISION
The Secretary of Labor, on behalf of the Federal Mine Safety and
Health Administration, (MSHA), charges respondent, Cathedral Bluffs Shale
Oil Company, (Cathedral), with violating Title 30, Code of Federal
Regulations, Section 37.19-100, 1../ a safety regulation adopted under
the Federal Mine Safety and Health Act, 30 u.s.c. 801 ~~·

1/

The cited regulation provides as follows: 30 CFR 57.19-100:

57.19-100 Mandatory. Shaft landings shall be equipped with substantial
safety gates so constructed that materials will not go through or under
them; gates shall be closed except when loading or unloading shaft
conveyances.

902

After notice to the parties a hearing on the merits was held in Grand
Junction,- Colorado on August 17, 1981.
ISSUE
The issue is whether MSHA may impose liability on an owner-operator
where such owner has retained an independent company with experience and
expertise in sinking shafts and where- the owner 1 s exposed employees are
quality control and safety inspectors. :l:.f
SUMMARY OF THE EVIDENCE
On the date of this inspection there was a chain but no safety gate at
level 1050. The shaft bottom was one hundred feet below this station (Tr.
41). If miners were in the shaft they could be struck by falling ~bjects
( Tr • 7 , 8 , 41 ) •
Occidental Shale Oil Company (Occidental), as the owner-operator
contracted with the Gilbert Corporation of Delaware (Gilbert) (Tr. 11, 12,
Rl). Gilbert was to serve as the contractor in sinking shafts at the
Cathedral Bluffs Shale Oil pro'ject (Tr. 20, Rl). Portions of the contract
received in evidence indicates considerable reliance by Occidental on the
expertise of Gilbert (Rl).
On September 4, 1980,_MSHA inspector Michael Dennehy issued Citation
327786 against the operator and the contractor. 1/ The citation was
against the operator, Occidental, because they engineered the shaft and had
quality control men checking on its completion (Tr. 20). However, the
inspector conceded that he had never seen any Occidental employees other
than quality inspectors 4/ working in the shaft (Tr. 17). Gilbert, the
contractor, had a continuing presence on the project and its workers were
exposed to the hazard (Tr. 19, 31).
According to the contract Gilbert, who is designated as an independent
contractor, (Rl, page 1) agrees to comply with all applicable laws, rules,
and regulations (Rl, page 15).

2/

In F & F Mendisco, WEST 80-458-M, an unrelated case decided this date,

a mine operator whose employees were exposed defended on the basis that his
legal relationship to the owner was that of an independent contractor.

3/ The record does not reflect what disposition was made of the citation
against contractor Gilbert.
4/ The inspector also testified that Occidental safety inspectors were
working in the shaft. However, except for the incidental activities of
Occidental safety inspectors Parker and Mcclung, infra, I find the only
Occidental shaft workers were those individuals inspecting the quality of
the workmanship (Tr. 62).

903

Witness Chuck Inman, the Occidental surface safety inspector,
testified that Gilbert was in charge of safety and that he did not have
the right to enter the shaft alone (Tr. 43, 44).
Witness Don Mcclung, Occidental's safety and health manager, indicated
he had no control over safety and health in this particular shaft other
than by contract (Tr. 56, 60). Any hazards observed by Occidental
employees should be reported to Gilbert. The hazard would either be fixed
or Gilbert would lose .its contract (Tr. 50).
DISCUSSION
The recent Commission decision of Phillips Uranium Corporation, CENT
79-.281-M (April 27, 1982), is dispositive of this case. The Commission
holds that liability for a violation may not be imposed ag.ainst an owneroperator .where the owner has retained an independent company with
experience and expertise in the activity being undertaken and where the
owner's· exposed employees do not perform any other work other than to
observe the progress of the contractor's activities to assure compliance
with quality control and contract specifications,(slip op. 1, 2). I
further note that Gilbert in this case was sinking mine shafts. This is
the same specialized activity undertaken by the contractor in Phillips.
Petitioner in his post trial brief contends that Occidental is liable
because its employees were exposed to the hazard and it had the authority
to require abatement.
Concerning the Occidental employees exposed to the hazard: the
evidence at best shows the only Occidental employees possibly exposed were
checking quality control in the shaft. I agree that in January 1980 Ron
Parker, an Occidental safety inspector, took underground gas samples and I
further agree that Don Mcclung, the Occidental Safety and Health manager,
had been down the shaft two or three times (Tr. 47-49). However, in my
view, such activities fall within the the doctrine expressed in Phillips.
Petitioner further argues that one hundred Occidental employees were
exposed. However, the evidence does not stretch as far as petitioner
contends. There may be one hundred Occidental employees at the Occidental
site but except as indicated above no witness places any such employees in
the shaft (Tr. 67-68).
I agree with petitioner's contention that Occidental had a right to
abate the hazard. Such a right was by contract.
On the authority of Phillips, I conclude that the citation issued here
should be vacated.

904

On the foregoing findings of fact and conclusions of law I enter the
following:
ORDER
Citation 327786 and all proposed penalties therefor are VACATED.

Law Judge
Distribution:
James H. Barkley, Esq.
Katherine Vigil, Esq.
Office'of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
James M. Day, Esq.
Cotten, Day & Doyle
1899 L Street, N.W., Twelfth Floor
Washington, D. C. 20036

905

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

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

t1AY 141982

Civil Penalty Proceeding
Docket No. LAKE 81-185-M
A.C. No. 21-00820-05027
Minntac Plant

UNITED STATES STEEL CORPORATION,
Respondent
LOCAL UNION 1938, DISTRICT 33,
UNITED STEELWOHKERS OF AMERICA,
Representative of the Miners
DECISION
Appearances:

Robert A. Cohen, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for Petitioner;
Louise Q. Symons, Esq., United States Steel Corporation,
Pittsburgh, Pennsylvania, for Respondent;
Clifford Kasenan, Safety Chairman, Local 1938, United
Steelworkers of America, Virginia, ~1innesota, for
Representative of the Miners.

Before:

Administrative Law Judge Broderick
STATEMENT OF THE CASE

In this proceeding, the Secretary seeks a penalty for the violation
of 30 C.F.R. § 55.14-29 which proscribes repairs or maintenance on
machinery until the power is off and the machinery is blocked against
motion. Pursuant to notice the case was heard in Duluth, Minnesota on
March 23, 1982. Federal mine inspector Thomas Hasley, and Michael
Tintor testified on behalf of Petitioner. Richard Maki, Rod Robillard
and Ronald Ranalta testified on behalf of Respondent. No witnesses were
called by the Representative of the Miners. Petitioner and Respondent
have filed posthearing briefs. Based on the entire record and consider~
ing the contentions of the parties, I make the following decision:

906

FINDINGS OF FACT
1.
At all times pertinent to this proceeding, Respondent was the
operator of the Minntac Plant, a mine as defined in the Federal Mine
Safety and Health Act of 1977. The subject plant produces g~ods which
enter interstate commerce.
2.
Re~pondent is a large operator and the assessment of a penalty
will not affect its ability to continue in business.
3.
A total of 180 violations were assessed against the subject
mine within the 24 months prior to the violat'ion charged herein, of
which 170 have been paid.
4.
Respondent demonstrated good faith abatement after the issuance
of the citation involved in this proceeding.
5.
On April 14, 1981, three laborers in the fines crusher building of the Minntac Plant were engaged in shovelling material that had
dropped to the floor from a conveyor belt. The material was shovelled
into a wheelbarrow and dumped away from the beltline.
6.
The belt was moving while the laborers were shovelling. There
was approximately 18 inches of material buildup under the belt, and the
laborers were shovelling under the belt.
7.
There were two bars in front of the belt designed to prevent
workers from walking into or falling into the belt or rollers. The
material buildup under the belt was approximately the height of the
lower bar.
8.
It was possible to put a shovel between the bars to break up
the material under the belt. It would be difficult to remove the
material in this way.
9.
A pinch point existed between the belt and the pulley, and
could have been reached if a long handled shovel was inserted between
the two bars.
10. Inspector Wasley issued a citation alleging a violation of
30 C.F.R. § 55.14-29. He contended that shovelling material from under
the belt constituted maintenance of the beltline.
11. The citation was terminated when Respondent had the employees
removed from the area and instructed in the hazard involved.
12. The shovels being used were long handled shovels without a
hand grip and were approximately 4-1/2 to 5 feet long.

907

13. Respondent has a safety rule requiring that a minimum of
18 inches body clearance must be maintained when working near a moving
conveyor.
REGULATION
30 C.F.R. § 55.14-29 provides: "Repairs or maintenance shall not
be performed on machinery until the power is off and the machinery is
blocked against motion, except where machinery motion is necessary to
make adjustments."
ISSUES
1. Whether shovelling material from under a belt line constitutes
repairs or maintenance on machinery?

2. If a violation of the mandatory standard was established, what
is the appropriate penalty?
CONCLUSIONS OF LAW
1. Respondent is subject to the provisions of the Federal Mine
Safety and Health Act of 1977 in its operation of the Minntac Plant.
2. The undersigned Administrative Law Judge has jurisdiction over
the parties and subject matter of this proceeding.
3. Shovelling spilled material from under a belt does not constitute repairs or maintenance on machinery.
DISCUSSION
The wording of the mandatory standard is clear - plainer than
many such standards - it forbids performing repairs or maintenance on
moving machinery except where motion is necessary to make adjustments.
It cannot reasonably be stretched to forbid cleanup under a belt which
may expose a worker to a pinch point. The fact that the inspector
stated that he would accept a guard as an abatement of the violation
makes it apparent that he was confusing the standard for which
Respondent was cited with another standard requiring guarding of moving
machinery parts which might be contacted by persons. There is no
provision in the cited standard which would permit repairs or maintenance on moving machinery if a guard is provided. In any event, it
appears clear to me that the activity described in the subject citation,
whatever hazard might have been involved, did not constitute repairs or
maintenance on moving machinery.

908

ORDER
Based on the above findings of fact and conclusions of law, IT IS
ORDERED that the citation is VACATED and this proceeding is DISMISSED.

fc~ #Jvociu--z~£

~

Distribution:

James A. Broderick
Administrative Law Judge

By certified mail

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203
Louise Q. Symons, Esq., Attorney for United States Steel Corporation,
600 Grant Street, Room 1580, Pittsburgh, PA 15230
Clifford Kasenen, Safety Chairman, Local Union 1938, United Steelworkers
of America, 307 First Street North, Virginia, HN 55702

909

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

""" 1 4 \982

Civil Penalty Proceedings

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

Docket Nos. SE 80-21-M
SE 80-61-M
SE 80-73-M
SE 80-79-M
SE 81-6-M

v.

CAROLINA STALITE COMPANY,
Respondent

Stalite Mill

DECISION AND ORDER GRANTING RESPONDENT'S
MOTION FOR SUMMARY DECISION
In view of the Solicitor's frequent failure to respond to critical
motions, on May 4, 1982, I issued a written order requiring the Secretary
to "fully respond" to Respondent's Motion for Sunnnary Decision. Petitioner's response merely urged that an extension be granted pending its
appeal of the dispositive decision of the Connni~sion to the United States
Court of Appeals.
By its decision dated March 29, 1982, the Commission determined that
the Respondent was not a mine subject to the Federal Mine Safety and ·
Health Act of 1977. Secretary v. Carolina Stalite Company, 4 MSHRC 423
(1982). Accordingly, Respondent's motion is granted and the five subject
penalty proceedings are dismissed.

A/,.
/
~~,_e a:?~t/2 -

Michael A. Lasher, Jr., Judge

Distribution:
James H. Woodson, Deputy Regional Solicitor; Ken S. Welsch, Esq.,
Office of the Solicitor, U. S. Department of Labor, 1371 Peachtree
St., NE, Rm. 339, Atlanta, 'GA 30367 (Certified Mail)
William C. Kluttz, Jr., Esq., Kluttz, Hamlin, Reamer, Blankenship
& Kluttz, 131 N. Main St., P. O. Drawer 1617, Salisbury, NC 28144
(Certified Mail)

910

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

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

Civil Penalty Proceedings
Docket No. WEVA 81-397
A/O No. 46-05653-03009

v.
CLAY KITTANNING COAL CO.,
Respondent

Docket No. WEVA 81-433
A/O No. 46-05653-03010V
Gail Mine

DECISION AND ORDER
These matters came on for an evidentiary hearing that, with the
consent of the parties, was converted to a settlement conference in
Beckley, West Virginia on April 21, 1982.
The operator, who appeared pro se, initially took the position that
he was not responsible for the violations charged because he was the
lessee of the mineral rights and had contracted with a third party to
extract the coal. There was no dispute about the fact that the contract
miner, who had never been identified as the operator, had connnitted the
violations. Nor was there any dispute about the fact that Mr. Ray, the
lessee-operator, had worked closely with his contract miner. Mr. Ray
was understandably chagrined over his claim that.he was being held
monetarily responsible for violations committed by a contract miner and
that the contractor had never paid the royalty due under the contract.
On the other hand, Mr. Ray conceded he was responsible for employing the
contractor and that the contractor was not a safe operator.
I told Mr. Ray that under the statute as both originally written
and amended a lessee-operator is vicariously liable for violations
committed by his contractors. Mitigating circumstances may be shown by
such operators but under the circumstances presented I could see no
basis for diminishing Mr. Ray's responsibility. ±./

1/ In its decision of April 27, 1982 in the Phillips Uranium case the
Commission held that the Secretary's refusal to proceed against a
construction contractor either directly or by impleading the independent
contractor was an abuse of prosecutorial discretion that required the
sanction of dismissal of the charges against the owner-operator. The
Commission was obviously displeased with the rigidity in the solicitor's
litigating posture. I do not believe the Commission intended to hold
that owner-operators or lessee-operators are no longer jointly and
severally liable for violations committed by their contractors.

911

Mr. Ray also asserted an inability to pay the penalties because of
straitened financial circumstances. It developed, however, that these
circumstances.are expected to improve considerably over the next year.
On the basis of these considerations, Mr.Ray and the solicitor negotiated
a stipulation for settlement which is the basis for the present motions.
Based on an independent evaluation and de novo review of the
circumstances, I find the settlement proposed is in accord with the
purposes and policy of the Act.
Accordingly, it is ORDERED that the motions to approve settlement
be, and hereby are, APPROVED. It is FURTHER ORDERED that the operator
pay the amount of the settlement agreed upon, $3,570, on or before
April 30, 1983 and that subject to payment the captioned matters be
DISMISSED.

Distribution:
William A. Ray, President, Clay Kittanning Coal Co., Inc., Box 296,
Summersville, WV 26651 (Certified Mail)
David Street, Esq., Office of the Solicitor, U.S. Department of Labor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)

912

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

IMY 181982

Civil Penalty Proceeding

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

Docket No. LAJ(E 82-36-M
A.O. No. 21-00282-05029

v.
Minntac Mine
UiHTED STATES STEEL CORPORATION,
Respondent
UNITED STATES STEEL CORPORATION,
Contestant
v.

Contest of Citation
Docket No. LAKE 81-191-RM
Citation No. 486750; 7/30/81

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

Hinntac Hine

LOCAL UNION NO. 1938, DISTRICT 33,
UiUTED STEELWORKERS OF AMERICA,
Representative of the Miners
DECISION
Appearances:

Robert A. Cohen, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, on behalf of
the Secretary of Labor;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, on
behalf of United States Steel Corporation;
Clifford Kasenan, Safety Chairman, Local Union 1938,
United Steelworkers of America, Virginia, Minnesota, on
behalf of the Representative of the Hiners.

Before:

Administrative Law Judge Broderick
STATEMENT OF THE CASE

The two cases have been consolidated since they both involve the
same citation. The notice of contest filed by U.S. Steel challenges

913

the validity of the cit~tion and the civil penalty proceeding se~ks a
penalty for the violation charged in ·the citation. Pursuant to notice,
a hearing was .held on the consolidated cases in Duluth, Minnesota on
March 23, 1982. Federal mine inspector James Bagley and Larry Claude
testified on behalf of the Secretary. William Parker and Michael Kerr
testified on behalf of U.S. Steel. No witnesses were called by the
Representative of the Miners. The Secretary and U.S. Steel have filed
posthearing briefs. Based on the entire record and considering the
contentions of the parties, I make the following decision.
FINDINGS OF FACT
1. At all times pertinent to this proceeding, U.S. Steel was the
operator of the Hinntac Plant, a mine as defined in the Federal Mine
Safety and Health Act of 1977. The subject plant produces goods which
enter interstate commerce.

2. U.S. Steel is a large operator, and the assessment of a
penalty ·will not affect its ability to continue in business.
3. A total of 180 vio·lations were assessed against the subject
mine within the 24 months prior to the violation involved herein, of
which 170 have been paid.
4. Respondent demonstrated good faith in abating the condition
after the issuance of the citation involved in this proceeding.
5. In July, 1981, and for some time prior to that, it was a com.'lton
practice at the subject mine for drivers of 85 ton and 120 ton haulage
trucks to check the oil level while the truck motor was running.
6. Newly hired truck drivers since 1977 have been instructed by
U.S. Steel to turn off the truck engine while checking the oil.
7. On July 30, 1981, the driver of a Wabco truck (No. 528) with
a Cummins engine checked the oil in his vehicle while the motor was
running.
8. In checking the oil, it is necessary to place one's foot on
the bottom step of a boarding ladder, take a hand hold on a grab iron
or radiator brace and pull oneself up to the exposed engine.
9. There was a pinch point between the V-belt on the alternator
and the alternator pulley located at the front or right hand side o~ the
alternator from the point of view of the person on the ladder.
10. The oil dipstick was toward the back or left hand side of the
ladder. It was approximately 16 inches from the alternator pulley. The
pinch point was approximately 18 inches from the grab iron.

914

11. On July 30, 1981, Inspector Bagley issued a citation for a
violation of 30 C.F.R. § 55.14-1 in which he charged that the truck in
question had an alternator V-belt drive assembly which was not guarded
to prevent persons from contacting it, and the equipment operator stated
that he checked the engine oil with the engine running.
12. The citation was terminated when U.S. Steel fabricated and
installed a guard over the alternator and its V-belt assembly. The
inspector refused to accept as abatement the 'company's proposal that
it issue a "job safety procedure" instructing the equipment operators to
shut down the trucks before checking the engine oil.
13. The inspector testified at the hearing that mechanics checking
the timing of the engine might also be exposed to the pinch point. This
aspect of the alleged hazard was not included in the citation, nor was
it part of the reason for issuing the citation. I am not considering it
in this proceeding.
REGULATION
30 C.F.R. § 55.14-1 provides as follows: "Gears; sprockets;
chains; drive, head, tail, and takeup pulleys; flywheels; couplings;
shafts; sawblades; fan inlets; and similar exposed moving machine parts
which may be contacted by persons and which may cause injury to persons,
shall be guarded."
ISSUES
1. Whether an unguarded V-belt on the alternator of a truck engine
constitutes a violation of the standard in question where the truck
operator checks the engine oil with the engine running?
2. If so, whether the condition can be abated by requiring that
the engines be turned off before checking the oil, or whether a guard
is necessary?
3. If a violation was established, what is the appropriate
penalty?
CONCLUSIONS OF LAW
1. The U.S. Steel Corporation is subject to the provisions of the
Federal Mine Safety and Health Act of 1977, in the operation of the
Hinntac Plant.

915

2. The undersigned Administrative Law Judge has jurisdiction over
the parties and subject matter of this proceeding.
3. The V-belt assembly on the alternator of the No. 523 Wabco
truck is, while the engine is running, a moving machine part. If the
engine oil is checked with the engine running, the V-belt assembly
constitutes a pinch point which may be contacted by persons.
DISCUSSION
There is no real dispute that one checking the oil by the dipstick
on the truck in question while the engine is running is subjected to
the possibility of·coming in contact with the pinch point formed between
the alternator V-belt and the alternator pulley. U.S. Steel argues
that the risk is remote (it compares it to the risk of being struck by
a falling meteor); that no other operator has ever been cited for the
condition; that no injuries have ever been reported due to the condition;
that the citation resulted from the personal campaign of a U.S. Steel
employee to have guards installed; that the equipment manufacturers
never considered the need for a guard; that the inspector was arbitrary
in requiring the installation of a guard for abatement. (" • • . if MSHA
inspectors have that right they have succeeded where President Truman
failed in dictating how the steel companies should run their businesses.
Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952)"). Brief of
United States Steel, p. 7). These arguments are largely beside the
point. A risk of injury from the possible contact with moving machine
parts was shown by the evidence.
4. There is no risk of injury from contact with moving machine
parts in checking the oil with the engine off, since in that case,
there are no moving machine parts. Therefore, the condition could
properly have been abated by requiring that the engine oil be checked
only with the engine turned off. This is the procedure recommended by
the equipment manufacturers and the stated policy of U.S. Steel.
5. The probability of an in]ury occurring in the circumstances
shown was slight. On the other hand, if an in]ury occurred it could be
relatively serious. I conclude that the violation was not serious.
6. The company had an official policy of requiring the engines to
be turned off when checking the oil. For various reasons, the policy
was more honored in the breach than in the observance. This fact should
have been known to management personnel. I conclude that U.S. Steel
was negligent in permitting the practice to continue.
7.

I conclude that an appropriate penalty for the violation is

$75.

916

ORDER
On the basis of the above findings of fact and conclusions of law,
IT IS ORDERED that Citation No. 486750 issued July 30, 1981, is AFFIRMED.
IT IS FURTHER ORDERED that U.S. Steel Corporation, within 30 days of the
date of this decision, pay the sum of $75 as a civil penalty for the
violation of 30 C.F.R. § 55.14-1 charged in the citation.

J

1

Distribution:

~vck4 cj'(_,,-

CL-i,ll.C-&'
,z,
James A. Broderick
Administrative Law Judge

By certified mail

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203
Louise Q. Symons, Esq., Attorney for United States Steel Corporation,
600 Grant Street, Room 1580, Pittsburgh, PA 15230
Clifford Kasenan~ Safety Chairman, Local Union 1938, United Steelworkers
of America, 307 First Street North, Virginia, HN 55702

917

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

Complaint of Discharge,
Discrimination, or Interference

JACK PARKS,
Applicant
v.

Docket No. NORT 75-377
L & M COAL CORPORATION,
Respondent
DECISION
Appearances:

Mary Lu Jordan, Esq., United i·fine Workers of America,
Washington, D.C., for Applicant;
No appearance for Respondent.

Before:

A<lministrative Law Judge Broderick
STATEMENT OF THE CASE

The case is before me on a motion filed by Applicant for a post
decision hearing to determine the amount due Applicant as back wages,
costs and expenses pursuant to the order in my decision of November 9,
1977. The decision was affirmed by the Commission (2 FMSHRC 2815) and
the Court of Appeals for the Fourth Circuit (Unpublished Opinion
October 7, 1981 No. 80-1320).
A Notice of Hearing was issued March 30, 1982, scheduling a hearing
in Abingdon, Virginia, for April 29, 1982. On March 30, 1982, counsel
for Respondent filed a motion to withdraw as counsel because he had
been appointed to a Judicial position in Virginia. Counsel stated that
he had advised his client of the motion and suggested that he retain
other counsel.
On April 2, 1982, I issued an order granting the motion of counsel
to withdraw and notifying Respondent of the time and place of the hearing. The notice was sent by certified mail and returned unclaimed
April 29, 1982. Ou April 27, 1982, I called Respondent's former
attorney who stated that he sent a copy of the notice of hearing to
Respondent when he received it, but had not heard from Respondent. On

918

April 27, 1982, I attempted to call Respondent's President, W. L.
Lanningham, at his home (there was no listing for the corporation).
My Secretary talked to a person who identified herself as his wife and
asked Mr. Lanningham to call. No call was received. Under the circumstances, I find that Respondent was notified of the hearing. No one
appeared on his behalf.
Evidence was received at the hearing and submitted subsequent to
the hearing by Complainant on the issues of back pay, interest, legal
expenses and costs of litigation. Based on the evidence submitted and
on the entire record, I make the following decision on the amounts due
Complainant:
BACK PAY
My order directed Respondent to pay Complainant full back wages
from the date of discharge (May 9, 1975) to the date he is reinstated
with interest thereon computed at the rate of 6 percent per annum.
Respondent was permitted to deduct from the back wages due under the
order, any wages Complainant received from other employment.
Complainant is seeking back pay only for the period from ;fay 9, 1975 to
Dece~ber 5, 1977.
1. Back pay, including vacation pay, holiday pay,
unused sick leave pay and cost of living allowances which
Complainant would have received for the period in question
totals $37,708.45. Interim earnings total $7,318.69. The
net back pay due Complainant is $30,389.76.
2. Interest on the net back pay at the rate of
6 percent per annum totals $10,756.42. Hy order directed
that interest be paid at 6 percent although unde~ the
formula followed by the NLRB and by me in more recent
decisions, the rate would fluctuate between 6 percent and
20 percent for the periods involved. I am using the rate
of 6 percent per annum since my order specified payment of
interest at 6 percent.
3. Complainant is entitled to have payments made to
the United Mine Workers Health and Retirement Fund on his
behalf as part of back wages. The amount that would have·
been paid for the period involved is $6,629.12.
LEGAL EXPENSES
1. At the time the case was tried Complainant was represented by
an attorney in private practice who was engaged by the United Mine
Workers. When the UMW counsel took over the case directly, the ill1W

919

paid the private counsel the su~ of $5,329.46. UMW attorneys, based on
their salaries, health and pension benefits, are entitled additionally
to a total of $1,820.77.
2. Complainant had costs in the amount of $61.97 for attendance
at the hearing in Abingdon.
ORDER
Resp.ondent shall within 30 days of the date of this decision pay
the following amounts pursuant to my order of November 9, 1977:
1. To Complainant Jack Parks the sum of $41,146.18
as back wages and interest.
2. To Complainant Jack Parks and the United Mine
Workers of America the sum of $7,150.23 as attorneys fees
and legal expenses.
3. To the United Mine Workers Health and Retirement
Fund on behalf of Complainant Jack Parks the sum of
$6,629.12 as employer contributions to the Pension and
Benefit Trusts.
4. To Complainant Jack Parks the sum of $61.97 as
incidental expenses of litigation.
IT IS FURTHER ORDERED that upon payment of the above amounts,
Complainant will not be entitled to reinstatement, nor will he have any
other claim against Respondent under the Coal Mine Safety Act of 1969,
resulting from his discharge on May 9, 1975.

t{/llVU-7~8 ,,4/£-vcf?i;y,,;t_,

J
Distribution:

James A. Broderick
Administrative Law Judge

By certified mail

Mary Lu Jord?n, Esq., United Mine Workers of America, 900 15th Street,
N.W., Washington, DC 20005
Mr. W. L. Lanningham, Route 4, Box 118, Jonesville, VA 24263

920

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

May 21, 1982

UNITED MINE WORKERS
OF AMERICA,
Contestant

NOTICE OF CONTEST
Docket No. LAKE 82-70-R

v.

Order No. 1226709; 3/15/82

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

Saginaw Mine

ORDER OF DISMISSAL.
On March 15, 1982, an MSHA inspector fssued a withdrawal order under section 104(d} (1) of the Act citing a
violation of 30 CFR 75.200. On March 16, 1982, the order
was terminated. On March 19, 1982, the withdrawal order was
vacated on the ground that it had been issued in error.
The Contestant union challenges the vacating of the
withdrawal order. I conclude Contestant does not have that
right under the Act.
Under section 105(d} of the Act a representative of
miners may contest "the issuance, modification, or termination
of any order." The Act does not give the representative of
miners the right to challenge the vacating of an order. The
term "vacating" is used elsewhere in the Act including a
subsequent phrase of the same sentence of section 105(d}.
Congress gave each of the terms "issuance", "modification",
"termination" and "vacation" its own separate and discrete
meaning and in dealing with these terms Congress has acted
with great specificity. If Congress wished the union to
have the right to challenge the vacating of an order it
would have expressly so provided as it did with respect to
other actions that are taken with respect to orders.
In
view of the precise delineations set forth in 105(d} there
is no basis to expand by implication the rights granted
therein or to read into it any other part of the Act such as

921

104(h). It is clear therefore, that only the designated
actions regarding orders may be disputed by a miner's
representative. The preciseness of section 105(d) previously has been recognized in other contexts. United Mine
Workers of America v. Secretary of Labor' 3 FMSHRC 2016
(August 28, 1981); Chester M. Jenkins v. Secretary of Labor,
3 FMSHRC 2175 (September 22, 1981).
In light of the foregoing, this case is DISMISSED .

•
Paul Merlin
Chief Administrative Law Judge
Distribution:

Certified mail.

Thomas M. Myers, Esq., UMWA, 56000 Dilles Bottom, Shadyside,
OH 43947
John H. O'Donnell, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203

922

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

May 21, 1982
NOTICE OF CONTEST

UNITED MINE WORKERS
OF AMERICA,
Contestant

Docket No. LAKE 82-71-R

v.

Citation No. 1226715; 3/15/82
Saginaw Mine

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

ORDER OF DISMISSAL
On March 15, 1982, an MSHA inspector issued a_ citation
under section 104(a) of the Act citing a violation of 30 CFR
75.303. On March 19, 1982, the citation was vacated.
The Contestant union challenges the vacating of the
citation.
I conclude that Contestant does not have that
right under the Act.
Under section 105(d) a representative of miners only
has the right to dispute the "reasonableness of the length
of time set for abatement by a citation or modification
thereto." An operator may contest the issuance or modification of a citation and the reasonableness of abatement
time. No one is given the right to contest the vacating
of a citation. Section 105(d) is very specific in delineating the types.of actions taken with respect to citations
and orders that can be challenged and the identity of those
who can assert these challenges. See my decision in United
Mine Workers of America v. Secretary of Labo~, LAKE 82-70-R
of this date which is adopted and incorporated herein. It
has previously been held that a miner's representative
cannot challenge the issuance of a citation. United Mine
Workers of America v. Secretary of Labor (CENT 81-223-R)
dated August 28, 1981.
It also has been held that a miner
cannot challenge issuance of a citation. Jenkins v. Secretary
of Labor (WEST 81-348-RM) dated September 22, 1981. The

923

rationale of those decisions which is based upon a recognition that the rights conferred by 105(d) are defined and
delimited py the very explicit language of that section
applies here.
Clearly, with respect to citations a miner's
representative is limited to an attack upon the reasonableness of abatement time.
Contestant's reliance upon section 104(h) is unpersuasive.
That section is merely declarative of the fact
that a citation or order remains in effect until it is
changed or set aside in the ways specified by those authorized to do so. It does not enlarge upon the rights conferred by section 105(d).
In light of the foregoing, this case is DISMISSED.

c---~----....\-P-af!
Chief Administrative Law Judge
Distribution:
Thomas M. Myers, Esq., UMWA, 56000 Dilles Bottom, Shadyside,
OH 43947
John H. O'Donnell, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203

924

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

ltAY 2 4 \982
Civil Penalty Proceeding

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

Docket No. WEVA 82-5
A.O. No. 46-04160-03014 V
Marilyn No. 1 Mine

v.
OAK MINING COMPANY,
Respondent
DECISION
Appearances:

Aaron Smith, Attorney, U.S. Department of Labor, Philadelphia,
Pennsylvania, for the petitioner; Robert V. Berthold, Jr.,
Esquire, Hoyer, Sergent & Berthold, Charleston, West Virginia,
for the respondent

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil penalty
filed by the petitioner against the respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a), charging
the respondent with three alleged violations of certain mandatory safety
standards found in Section 75, Title 30, Code of Federal Regulations.
Respondent filed a timely answer to the proposals, admitted that
the mine is subject to the provisions of the Act, and in defense of the
violations stated that the conditions cited were abated within a reasonable
time, did not constitute an immediate threat to the health and safety
of miners, and did not constitute a continued pattern of conduct.
Further, respondent submitted that the initial proposed penalty assessment
amounts for the violations are inappropriate considering the size of
the mine, the size of respondent's company, and the number of previously
assessed violations.
By notice of hearing, as subsequently amended, the case was docketed
for hearing on April 28, 1982, in Charleston, West Virginia. Prior to
the Commencement of the hearing, respondent's counsel of record withdrew from
the case and also advised that the respondent had filed a Petition for
reorganization under Chapter II of the United States Bankruptcy Code
in the U.S. Bankruptcy Court for the Southern District of West Virginia
at Charleston, West Virginia.

925

By motion filed April 1, 1982, respondent's bankruptcy counsel
filed a motion for a stay of the scheduled hearing on the ground that
Section 362 Qf the U.S. Bankruptcy Code automatically stays the pending
adjudicative proceeding before this Commission. The motion for stay was
denied by me on April 9, 1982, and my reasons for the denial are detailed
in the order which is a part of the record. The hearing was convened
as scheduled and the parties appeared and participated fully therein.
At the request of the parties, an informal prehearing conference
was held in Charleston on the evening of April 27, 1982, for the purpose
of discussing the issues to pe tried, the status of respondent's
bankruptcy petition, and a possible settlement of the case. The parties
advised me that they had reached a proposed settlement of the case and they
were afforded an opportunity to present their arguments. in support
of the settlement on the record at the hearing.
Discussion
Citation No. 904194, issued on June 8, 1981, is a Section 104(d)(2)
Order of withdrawal, cites a violation of 30 CFR 75.303, and the condition
or practice cited is as follows:
There were no evidence that a preshift examination
had been made before miners entered the 002 Section,
in that initials, date or time could be found at
or near the face areas.
Citation No. 904293, issued on June 19, 1981, is a Section 104(d)(2)
Order of Withdrawal cites a violation of 30 CFR 75.400, and the cited
condition or practice is as follows:
Loose coal and coal dust, in depths from 1 to 18
inches, was allowed to accumulate on the mine
floor and coal ribs in the following entries in
the No. 1 (001) section: From the face of No. 1
entry outby 60 feet the face of No. 2 entry outby
50 feet, the face of the No. 3 entry outby 74 feet,
the hold of No. 4 entry outby 98 feet, the face of
No. 5 entry outby 85 feet and the face of No. 6
entry outby for 59 feet.
Citation No. 904294, issued on June 19, 1981, Section 104(d)(2)
Order of Withdrawal, cites a violation of 30 CFR 75.316, and the cited
condition or practice is as follows:
Permanent stoppings were not maintained up to and
including the third connecting crosscut in the
No. 1 (001) section in that permanent stoppings
were terminated 4 crosscuts outby the faces of
the No. 2 and 3 (intake) faces and No. 4 and 5
(Return) face.

926

Stipulations
The parties stipulated that the respondent owned and operated the
subject mine, that the mine is subject to the Act, that the citations
were duly served on responden~s agents at the times and dates stated
therein, and that I have jurisdiction to hear and decide the matter.
Respondent's bankruptcy petition
As noted in my April 9, 1982, Order denying respondent's motion for
stay, Section 362 of the Bankruptcy Code, 11 U.S.C. 362, contains
'exceptions to the automatic stay provisions of the law, and one of those
exceptions reads as follows:
(b) The filing of a petition under section 301,
302, or 303 of this title does not operate
as a stay - * * *
(4) Under subsections (a)(l) of this section,
of the commencement or continuation of an
action or proceeding by a governmental unit
to enforce such governmenta.l units police
or regulatory power; (5) under subsection
(a)(2) of this section, of the enforcement
of a judgment, other than a money judgment,
obtained in an action or proceeding by a
governmental unit to enforce such governmental
units police or regulatory power;
N.L.R.B. v. Evans Plumbing Company, 639 F.2d 291 (5th Cir. 1981),
contains a detailed discussion of the section 362 bankruptcy code stay
exception, particularly in cases involving a Federal agency's exercise
of regulatory powers, including the enforcement of safety regulations.
See also: In re Tauscher, et al., E.D. Wisc. Bankruptcy Court, 24 WR cases
1310, holding that administrative proceedings involving the assessment
of civil penalties for child labor violations of the Fair Labor Standards
Act are excepted from the automatic stay provisions of section 362
of the Bankruptcy code.
In an·April 6, 1982, decision concerning a discrimination complaint
filed by the Secretary pursuant to section 105(c) of the Federal Mine
Safety and Health Act of 1977, MSHA, et al. v. Leon's Coal Company, et al.,
Docket No. CENT 80-339-D, Judge Melick ruled that enforcement proceedings
before this Commission brought by MSHA pursuant to the Act come within
the aforementioned statutory exception to the automatic stay provisions
of the Bankruptcy Code. Citing several applicable court decisions in
addition to those cited above, Judge Melick further held that in spite
of the pending bankruptcy proceeding in the case before him, this
Commission retained jurisdiction to proceed with hearings in pending
cases and to issue decisions and orders.

927

I am in total agreement with the Leon Coal Company decision and
adopt Judge Melick's rulings regarding the Commission's jurisdiction to
proceed with the final adjudication of cases involving coal mining
companies who are parties in proceedings before the Commission or its
administrative Law Judges as my finding and conclusion on this issue.
I also reaffirm my previous ruling and order denying respondent's motion
for a stay of this adjudicative proceeding.
Petitioner's counsel presented full and complete arguments in
support of the proposed settlement disposition of this case, including
information ~oncerning the six criteria found in section llO(i) of the
Act.
Fact of violations
Respondent does not dispute the fact of violations and presented
no defense to the citations. Under the circumstances the citations in
question are AFFIRMED.
Size of business and the effect of the civil penalty assessments on
the respondent'~ ability to remain in business.
The parties agreed that the respondent is a moderate-to-medium
sized coal mine operator that all of the mines owned and operated
by the parent company, Coal Management Services Incorporated, had an annual
production of 1,088,959 tons of coal, and that the subject mine had an
annual production of 272,321 tons.
The parties stipulated that the initial proposed civil penalty
assessments for the three citations in question would have an adverse
impact on t~e respondent's ability to continue in business, particularly
in light of the pending bankruptcy proceedings. Although the mine is
not presently in operation, respondent's counsel indicated that respondent
is attempting to resolve its financial affairs and will attempt to reopen
the mine sometime in the future. Counsel also asserted that the approval
of the proposed settlement will contribute to the respondent's efforts
to remain solvent and get back into the coal mining business.
History of prior citations
The parties stipulated that for the 24-month period prior to the
issuance of the citations in question the respondent paid civil penalty
assessments for a total of 37 violations.
Gravity
Petitioner argued that all the citations were moderately serious.
The failure to conduct the required preshift examination (citation 904194),
exposed miners to potential hazards. The failure to clean-up the cited
coal accumulations (904293), presented a fire hazard. The failure to
maintain the permanent stoppings could have affected the mine ventilation
system.

928

Negligence
The parties agreed that the citations resulted from the respondent's
failure to exer.cise reasonable care and that this constitutes ordinary
negligence as to each of the citations. Although recognizing that
the citations were "unwarrantable failure" orders, petitioner's counsel
agreed that there is no evidence of any gross negligence by the respondent
in this case.
Good faith compliance
Petitioner stated that citation no. 904194 was abated within 20
minutes after it was issued, and that the conditions cited in the remaining
citations were promptly corrected by the respondent and that the inspector
terminated the citations upon his next visit to the mine.
The parties proposed that a civil penalty assessment for the three.
citations in question in the total amount of $1,000 is reasonable and
in the public interest, particularly in light of the pending bankruptcy
proceedings.
Conclusion
After careful review and consideration of the pleadings, arguments,
and submissions in support of the petitioner's 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 20 C.F.R. § 2700.30, petitioner's motion is r,RANTED and the
settlement is APPROVED.
The agreed upon penalty assessment of $1,000 is allocated as follows:
Citation No.

Date

30 CFR Section

Assessment

904194
904293
904294

6/8/81
6/19/81
6/19/81

75.303
75.400
75.316

$300
$400
$300

ORDER
Respondent IS ORDERED to pay civil penalties in the settlement amounts
shown above in satisfaction of the citations in question within thirty (30) .
days of the date of this decision and order, and upon receipt of payment by
the petitioner, this proceeding is DISMISSED.

v: L;:,_z:C~"J

J/1::4,;
~:f!f~e
7,.rKoutras /-("F)''f..
Administrative Law Judge

929

"' • ·

Distribution:
Aaron Smith,, Attorney, U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)
Robert V. Berthold, Jr., Esq., Hoyer, Sergent & Berthold,- 22 Capital St.,
Charleston, WV 25301 (Certified Mail)

930

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

May 26, 1982
QUARTO MINING COMPANY,
Contestant

Contest of Orders
Docket No. LAKE 81-118-R
Order No. 1121181; 3/2/81

v.

Docket No. LAKE 81-119-R
Order No. 1121182; 3/2/81

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

Docket No. LAKE 81-120-R
Order No. 1121183; 3/2/81
Docket No. LAKE 81-121-R
Order No. 1121185; 3/2/81
Docket No. LAKE 81-122-R
Order No. 1124038; 3/2/81
Docket No. LAKE 81-123-R
Order No. 1124039; 3/2/81
:

Docket No. LAKE 81-124-R
Order No. 1124040; 3/2/81
Docket No. LAKE 81-125-R
Order No. 1124041; 3/2/81
Civil Penalty Proceedings

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

Docket No. LAKE 81-147
A.C. No. 33-01157-03250-V

v.

Docket No. LAKE 81-148
A.C. No. 33-01157-03251

QUARTO.MINING COMPANY,
Respondent

Powhatan No. 4 Mine
DECISION

Appearances:

John T. Scott, III, Esq., Crowell & Moring,
Washington, DC for Contestant/Respondent,
Quarto Mining Company;
Patrick M. Zohn, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, PA
for Respondent/Petitioner, MSHA.

Before:

Judge Merlin

931

Statement of the Case
The first eight docket numbers captioned above are
notices of contest filed by Quarto Mining Company under
section 105(d) of the Act to challenge the validity of eight
orders of withdrawal issued by two inspectors of the Mine
Safety and Health Administration for alleged violations of
30 CFR 75.1003-2. The last two docket numbers are petitions
for the assessment of civil penalties filed by the Secretary
of Labor under section llO(a) of the Act for violations
alleged in the orders.
Prior to the hearing the parties filed preliminary
statements, joint stipulations and memoranda of law. The
hearing was held as scheduled on May 12, 1982. Documentary
exhibits and oral testimony were received from both parties.
At the conclusion of the hearing both parties waived the
filing of written briefs and agreed I should render a
decision based upon the transcript of the hearing and
documentary evidence (Tr. 203).
At the outset of the hearing the Solicitor moved to
vacate Order 1121182 (LAKE 81-119-R) and to dismiss the
civil penalty petition with respect to that item. The
operator also moved to dismiss its notice of contest for
that order. From the bench I granted the motions (Tr. 5).
During the course of the hearing the Solicitor also
moved to vacate Order 1121181 (LAKE 81-118-R) and to dismiss
the civil penalty petition with respect to that item.
The operator also moved to dismiss its notice of contest
for that order. From the bench I granted the motions
(Tr. 146).
This left for decision the validity of the remaining
six orders and associated penalty items.
The Mandatory Standard
Section 75.1003-2 of the mandatory standards provides
in pertinent part as follows:
§ 75.1003-2
Requirements for movement of
off-track mining equipment in areas of active
workings where energized trolley wires or trolley
feeder wires are present; pre-movement requirements; certified and qualified persons.

932

(a) Prior to moving or transporting any unit
of off-track mining equipment in areas of the
active workings where energized trolley wires or
trolley feeder wires are present:
(1) The unit of equipment shall be examined
by a certified person to ensure that coal dust,
float coal dust, loose coal oil, grease, and other
combustible materials have been cleaned up and
have not been permitted to accumulate on such unit
of equipment; and,
(2) A qualified person, as specified in
75.153 of this part, shall examine the trolley
wires, trolley feeder wires, and the associated
automatic circuit interrupting devices provided
for short circuit protection to ensure that proper
short circuit protection exists.
§

(b) A record shall be kept of the examinations required by paragraph '(a) of this section,
and shall be made available, upon request, to an
authorized representative of the Secretary.
(c) Off-track mining equipment shall be moved
or transported in areas of the active workings
where energized trolley wires or trolley feeder
wires are present only under the direct supervision of a certified person who shall be physically present at all times during moving or
transporting operations.
(d) The frames of off-track mining equipment
being moved or transported, in accordance with
this section, shall be covered on the top and on
the trolley wire side with fire-resistant material
which has met the applicable requirements of Part
18 of Subchapter D of this Chapter (Bureau of
Mines Schedule 2G) •

(f) A minimum vertical clearance of 12 inches
shall be maintained between the farthest projection of the unit of equipment which is being
moved and the energized trolley wires or trolley
feeder wires at all times during the movement or
transportation of such equipment; provided,

933

however, that if the height of the coal seam does
not permit 12 inches of vertical clearance to be
so maintained, the following additional precautions
shall be taken:
(3) At all times the unit of equipment is
being moved or transported, a miner shall be
stationed at the first automatic circuit breaker
outby the equipment being moved and such miner
shall be: (i) In direct communication with persons
actually engaged in the moving or transporting
operation, and (ii) capable of communicating with
the responsible person on the surf ace required to
be on duty in accordance with § 75.1600-1 of this
part;
(5) No person shall be permitted to be inby
the unit of equipment being moved or transported,
in the ventilating current of air that is passing
over such equipment, except those persons directly
engaged in moving such equipment.

The Cited Conditions or Practices
Order No. 1121183 (LAKE 81-120-R) cites a violation of
30 CFR 75.1003-2(f) (3) (i) for the following condition:
While the conveyor belt tailpiece unit was
being transported along the No. 1 main line track
entry, a miner was not stationed at the first
automatic circuit breaker outby the equipment
being moved or in direct communication with
persons actually engaged in the transporting
operation. The unit contacted the trolley wire on
2-27-81 at about 6:55 p.m. Person in charge was
W. Mcintire, construction foreman.
Order No. 1121185 (LAKE 81-121-R) cites a violation
of 30 CFR 75.1003-2(f) (5) for the following condition:

934

While the conveyor belt tailpiece unit was
being transported along the No. 1 main line track
entry, w):lich came in contact with the trolley wire
on 2-Z7-81 at about 6:55 p.m., persons were permitted to be inby the unit being transported and
in the ventilating current of air that passed over
the equipment. The persons were working on the 5
right and 6 right sections of 3 south along with
other personnel doing "dead work." Person in
charge was w. Mcintire, construction foreman.
Order No. 1124038 (LAKE 81-122-R) cites a violation of
30 CFR 75.1003-2(a) (1) for the following condition:
An inspection revealed that on February 27,
1981, a belt conveyor tailpiece unit (off-track
mining equipment) was moved along the No. 1 main
line haulage road in violation of the following
mandatory standard: The unit of equipment (belt
conveyor tailpiece) was not examined by a certified
person to ensure .that loose coal, coal dust, and
float coal dust were cleared up and not permitted
to accumulate on such equipment. Accumulations of
loose coal, coal dust, and float coal dust were
present on the entire surface area of the belt
conveyor tailpiece unit in depths of 1/4 to 4
inches. W. Mcintire, Recovery Foreman, was the
person in charge.
Order No. 1124039 (LAKE 81-123-R) cites a violation of
30 CFR 75.1003-2(b) for the following condition:
An inspection revealed that on February 27,
1981, a belt conveyor tailpiece unit (off-track
mining equipment) was moved along the No. 1 main
line haulage road under energized trolley wire
in violation of the following mandatory standard:
The absence of entries into the record book indicated that a qualified person did not examine the
trolley wires, trolley feeder wires, and the
associated automatic circuit interrupting devices
provided for short circuit protection to ensure
that proper short circuit protection existed.
W. Mcintire, Recovery Foreman, was the person
in charge.

935

Order No. 1124040 (LAKE 81-124-R) cites a violation of
30 CFR 75.1003-2(c) for the following condition:
An inspection revealed that on Febr·uary 27,
1981, a belt conveyor tailpiece unit (off-track
mining equipment) was moved along the No. 1 main
line haulage road under energized trolley wire
without the direct supervision of a certified
person. The recovery foreman in charge was not
physically present during the transporting operation. W. Mcintire, Recovery Foreman, was the
person in charge.
Order No. 1124041 (LAKE 81-125-R) cites a violation of
30 CFR 75.1003-2(d) for the following condition:
An inspection revealed that on February 27,
1981, a belt conveyor tailpiece unit (off-track
mining equipment) was moved along the No. 1 main
line haulage road under energized trolley wire in
violation of the following mandatory standard:
·The frame of the belt conveyor tailpiece unit was
not covered on the top and trolley wire side with
fire-resistant material. The top surface of the
unit measured 10 feet, 6 inches in length by
5 feet, 9 inches to 6 feet, 9 inches in width, and
only one piece of fire-resistance belt measuring 5
feet, 2 inches in length by 3 feet in width was
placed on top of the unit. W. Mcintire, Recovery
Foreman, was the person in charge.
Stipulations
In the first preliminary statement filed September 1,
1981, the parties agreed to the following stipulations:
1.

Quarto Mining Company is the operator of
the Powhatan No. 4 Mine.

2.

The operator and the Powhatan No. 4 Mine
are subject to the jurisdiction of the
Federal Mine Safety and Health Act of
1977.

3.

The presiding administrative law judge has
jurisdiction over this proceeding.

936

4.

Each of the inspectors who issued the
subject orders was a duly authorized
representative of the Secretary.

5.

A true and correct copy of each of the
subject orders was properly served upon
the operator.

6.

The annual coal tonnage produced by the
Powhatan No. 4 Mine is between 1.1 and
2.0 million, and the annual coal tonnage
produced by the operator is over 10 million.

7.

The average number of violations assessed
per year during the two years prior to the
issuance of the [orders] was over 50.

8.

Imposition of any penalty in this proceeding will not affect the operator's
ability to continue in business.

On April 8, 1982, the parties submitted an additional
19 stipulations which are as follows:
1.

On Monday, February 23, 1981, miners under
the supervision of Support Foreman Walter
Mcintire loaded four on-track supply cars in
the 9 and 10 Right 1 North Section of the
Powhatan No. 4 Mine of Quarto Mining Company.
The four cars were loaded with belt structure,
hydraulic oil, brattice cloth, empty oil
cans, rags, trash and a belt tailpiece. This
belt tailpiece had been modified by putting
steel wings on it which increased its width.
The wings were added so that when coal was
dumped onto the tailpiece it would not
overflow. The tailpiece was 10 feet 6 inches
in length, 3 feet 1 inch in height and varied
in width from 5 feet 9 inches to 6 feet 9
inches.

2.

On Friday, February 27, 1981, at approximately 6:00 p.m., Mr. Mcintire instructed
Dwight Lancaster, general inside laborer, and
George Harold, stoper operator, to transport

937

the four loaded cars from the 9 and 10 Right
1 North Section of the mine to the 3 South
Runaround Section of the mine. Mr. Lancaster
drove the locomotive pulling the cars and
Mr. Harold accompanied him. The locomotive
usually travels at about five miles per hour.
3.

Prior to the move of the tailpiece, it was
not examined by a certified person to ensure
that coal dust, float coal dust, loose coal,
oil, grease and other combustible materials
had been cleaned up and not permitted to
accumulate on it.

4.

Because no examination of the tailpiece
took place, no record could be kept and made
available to an authorized representative of
the Secretary of Labor.

5.

No certified person was physically present
at all times during the movement of the
tailpiece to directly supervise its trip from
9 and 10 Right 1 North to the 3 South Runaround.

6.

The entire top of the tailpiece was not
covered by fire resistant material, although
a piece of rubber matting measuring 5 feet 2
inches in length and 3 feet in width was
placed on the right side or trolley wire side
of the tailpiece.

7.

A minimum vertical clearance of 12 inches
between the wings of the tailpiece and the
energized trolley wires could not be maintained during the movement of the tailpiece
in part due to the physical restrictions of
the coal seam.

8.

The locomotive pulling the cars was using
direct current electric power which was
provided by a power source inby. During the
move of the tailpiece, no miner was stationed
to cut off the power source, no miner was
outby in direct communication with Dwight
Lancaster and George Harold while they were
moving the tailpiece, and no miner was
stationed at the first automatic circuit
breaker outby the tailpiece at all times
during the move.

938

9.

The locomotive moving the four cars had
traveled approximately two miles to the 95
Crosscut on the main haulage line when at
approximately 6:55 p.m., the wing on the
right hand side of the tailpiece came in
contact with the energized trolley wire,
knocking down 78 feet of trolley wire and
several cable hangers. When the belt tailpiece contacted the energized trolley wire,
the automatic circuit interrupting device
shut off the power in the line.
The power
came back on a minute later, interrupted
again, and remained off.

10.

After the tailpiece contacted and pulled
down the wire, Lancaster and Harold informed
the Dispatcher and the Main Line Foreman of
the incident and left their shift for the day
with their section foreman Walter Mcintire.

11.

After Lancaster and Harold left the mine,
members of the Union Safety Committee were
contacted. Three members, Pete Polverini,
Floyd Lucido, and Gary Anderson, arrived at
the mine early in the evening and thereupon
examined the tailpiece and the location of
the incident.

12.

Members of the Union Safety Committee contacted the MSHA Subdistrict Off ice later that
evening and informed it about the incident.
Three days later, on Monday, March 2, 1981,
Federal Coal Mine Inspectors Franklin Homko
and William Allen McGilton were instructed by
their Supervisor Louis P. Jones to conduct an
inspection of the area where the incident had
occurred.

13.

After examining the tailpiece and the
location of the incident, the inspectors
tentatively decided to issue eight orders to
Quarto alleging violations of eight paragraphs
of 30 C.F.R. § 75.1003-2. The inspectors
then held a meeting with Quarto and union
officials after their inspection.

939

14.

At this meeting Hugh Lucas, General Mine
Superintendent for the No. 4 Mine, stated
that Quarto's position was that a belt
tailpiece was not off-track mining equipment.
For this reason, Quarto believed that the
requirements set forth in Section 75.1003-2,
which apply only to off-track mining equipment, did not apply to the transport of a
tailpiece.

15.

The two inspectors took Quarto's view under
advisement and contacted by telephone their
subdistrict manager in St. Clairsville, Ohio,
Mr. George Svilar, to reaffirm their belief
t4at a belt tailpiece was classified as offtrack mining equipment.
Based on their
investigation, interviews, the call to
Mr~ Svilar, and interpretation of the applicable regulations, the inspectors issued
eight § 104(d) (2) orders of withdrawal.

16.

Inspector McGilton issued four orders for
violations of the following:

Order No.
1124038
1124039
1124040
1124041
17.

Paragraph of 30 C.F.R.
§ 75.1003-2 Allegedly
Violated
75.1003-2(a) (1)
75.1003-2(b)
75.1003-2(c)
75.1003-2(d)

Inspector Homko issued four orders for
violations of the following:

Order No.
1121181
1121182
1121183
1121185

Paragraph of 30 C.F.R.
§ 75.1003-2 Allegedly
Violated
30 CFR 75 .1003-2 (f) (1) (ii)
3 0 CFR 7 5. 10 0 3-2 ( f) ( 2)
30 CFR 75.1003-2 (f) (3) (i)
30 CFR 75.1003-2 (f) (5)

940

18.

The parties to this litigation also stipulate to Facts Not In Dispute listed at pages
2-3 of Quarto's Response to Pretrial Order
filed on September 1, 1981.

19.

The parties also stipulate that the transcript of MSHA's Deposition of Mr. Hugh Lucas
be introduced as evidence. A copy of that
transcript is filed with these Joint Stipulations.

In addition, at the hearing the parties stipulated that
24 men were inby the tailpiece when it was being moved (Tr. 6).
The parties also stipulated at the hearing that the
underlying 104(d) (1) citation and order had been validly
issued for the purpose of setting off the chain in which
subject orders were issued (Tr. 97).
I accepted all the stipulations.
Discussion and Analysis
Existence of a Violation
The existence of a violation depends upon whether the
tailpiece was off-track equipment.
In accordance with the
factual stipulations, the parties agree that if the tailpiece
is off-track equipment, the conduct of the operator violated
the Act (Tr. 6).
"Off-track" is not defined in the Act or regulations.
Neither is "on-track." However, on-track has a well accepted
meaning. On-track is equipment which moves on rails or
tracks either under its own power like a locomotive or as in
the ca·se of a mine car under the power of another vehicle to
which it is attached (Tr. 150).
I believe the determination of what is off-track must
be reached by placing that term in juxtaposition to ontrack.
The key to both terms is mobility, how something
moves. On-track refers to a certain type of movement by
machines, i.e., on rails (Tr. 150). Off-track refers to
another kind of movement by machinery, i.e., not on rails,
as for instance on wheels like a shuttle car. As operator's
safety director recognized at the hearing, off-track equipment,

941

like on-track, is not limited to self-propelled machines but
includes equipment which is pulled or moved along by another
vehicle which has power (Tr. 150-151). The operator's
safety director offered a fan on skids which can be pulled
about by a self-propelled machine as an example of off-track
equipment without its own power of mobility (Tr. 182).
The tailpiece in question was mounted on skids (Tr. 186).
It could be moved about and indeed was intended to be moved
about the section without damage to the mine floor by being
attached to a shuttle car which had power (Tr. 187, 189).
It is therefore mobile like the fan which the operator's
safety director admitted is off-track. The operator's
safety director admitted that the mobility of the fan and
the tailpiece were the same (Tr. 188-190).
In light of the
foregoing, I conclude the tailpiece is off-track equipment
within the meaning of the mandatory standard.
Both parties purport to rely upon the decision in
Southern Ohio Coal Company v. Secretary of Labor, 3 FMSHRC
1449 (1981, which holds that this mandatory standard only
applies to "complete or reasonably complete pieces of offtrack mining equipment" and does not apply to "component
parts.of off-track mining equipment." However, neither
party seems certain what that decision means. So many
things can be characterized as components of a larger
entity and no one offered a basis for me to distinguish
between a component and something that is reasonably complete. Therefore, I cannot apply that decision here.
Insofar as the mandatory standard covers a "unit" of
off-track equipment, I conclude this tailpiece is included.
It is a single or distinct part used for a specific purpose.
Webster's New World Dictionary (2nd College Edition 1972).
The argument that the term off-track is too vague also
must be rejected. As set forth above, the terms off-track
and on-track relate to specific aspects of mine machinery
and are susceptible of precise delineation. To be sure, it
would have been better had the Secretary taken appropriate
action to define the parameters of these terms. However,
his failure to do so does not mean they are too vague to be
properly defined and enforced in this proceeding. The
situation here is far different from one where a wholly
subjective description such as "excessive" is employed as
the sole standard. Secretary of Labor v. Quarto Mining
Company, 2 FMSHRC 2669 (1980) I appeal dismissed, 3 FMSHRC
2051 (1981).

942

Accordingly, I conclude this tailpiece was off-track
equipment within the purview of the mandatory standard and
that therefore, the operator violated the Act.
Unwarrantable Failure
The governing definition of unwarrantable failure is
still to be found in Zeigler Coal Company, 7 IBMA 280
(1977) decided under the 1969 Act which held in pertinent
part as follows at 295-296:
In light of the foregoing, we hold that an
inspector should find that a violation of any
mandatory standard was caused by an unwarrantable
failure to comply with such standard if he determines that the operator involved has failed to
abate the conditions or practices constituting
such violation, conditions or practices the
operator knew or should have known existed or
which it failed to abate because of a lack of due
diligence, or because of indifference or lack of
reasonable care.
Zeigler was specifically approved during consideration
of the 1977 Act.
S.Rep. 95-181, 95th Cong., 1st Sess., at
31-32 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2nd Sess.,
Legislative History of the Federal Mine Safety and Health
Act of 1977, at 619-620 (1978).
In this case it is clear that the operator knew of the
conditions or practices which comprised its failure to
comply with the mandatory standard.
The evidence makes
clear that the operator's recovery foreman was in charge of
moving the tailpiece and either knew or should have known of
all the circumstances surrounding the move.
This is not however, the end of the matter. Under the
circumstances presented here further inquiry must be made
with respect to whether the operator knew or should have
known that the conditions or practices constituted a violation.
I recognize that after pointing out that the legislative
history of the 1969 Act was not clear on the point, Zeigler
concluded that unwarrantability did not depend upon knowledgeability of the operator with regard to a matter of law,
i.e., whether it had committed a violation. But Zeigler was
an accumulations case under 30 CFR 75.400.
It did not

943

involve a situation like this one and I do not believe it
should be dispositive here.
The evidence in this case shows
that tailpieces had been routinely moved from section to
section in this mine without complying with 75.1003-2.
Never had tailpieces been recorded in the book kept by the
operator for the purpose of recording moves of off-track
equipment and never had the operator been cited for failure
to apply 30 CFR 75.1003-2 to tailpieces (Tr. 125-126). The
MSHA inspector thought the operator's belief that the tailpiece was not off-track was reasonable, although erroneous
(Tr. 135-138).
Finding unwarrantable failure and therefore imposing
upon the operator the harsh sanctions flowing from mine
closure and high penalty assessment is offensive to fundamental fairness where, as here, the Secretary for years has
done nothing to interpret the regulatory language or to
advise the operator what is expected of it. As previously
stated, the Secretary's failure to act does not prevent
interpretation and application of the mandatory standard in
this case. However, it is quite another matter to hold the
operator guilty of unwarrantable failure and subject it to
attendant severe punishments in such a situation. This the
Act should not be interpreted to require.
I conclude
therefore, the operator is not guilty of unwarrantable
failure in this case.
Modification of Orders to Citations
In light of the foregoing, the subject 104(d) (2)
withdrawal orders cannot stand as withdrawal orders under
that section because there was no unwarrantable failure.
Pursuant to section 105(d) of the Act, I hereby modify these
orders to 104(a) citations. Under section 105(d) the
Commission and its Judges have authority after a hearing to
affirm, modify or vacate an order.
I recognize that Board
decisions under the 1969 Act denied administrative law
judges the power to modify. See e.g., Freeman Coal Mining
Corp., 2 IBMA 197, 209-210 (1973), aff'd sub nom. on other
grounds, Freeman Coal Mining Co. v. IBMA,--S04-P:-2d-=r41 (7th
Cir. 1974). However, another approach seems to be emerging
under the 1977 Act. See the Commission's decision in Old
Ben Coal Company, 2 FMSHRC 1187 (1980). Administrative law
judges have modified orders under the 1977 Act. Consolidation
Coal Company, 3 FMSHRC 2207 (1981); Youngstown Mines Corporation,
3 FMSHRC 1793 (1981).
In this case neither party would be
prejudiced by modification of the orders to citations. Both
parties have had full notice and opportunity to argue every
conceivable issue and they have done so.

944

Other considerations also dictate that these unwarrantable orders be modified to citations. The instant consolidated
proceedings involve penalty assessments as well as notices
of contest.
The Commission has held that the allegation of
a violation survives the vacation of an imminent danger or
unwarrantable failure withdrawal order. According to the
Commission the allegation of a violation and the assessment
of a civil penalty remain in citations issued by the Secretary
after the withdrawal orders are vacated.
Island Creek Coal
Company, 2 FMSHRC 279 (1980); Van Mulvehill Coal Company,
Inc., 2 FMSHRC 283 (1980). Allowing modification of the
instant orders to citations at the administrative law judge
level would be the most expeditious way of handling the
matter.
It would avoid wasting time and money by requiring
the Secretary to engage in the pro forma tasks of issuing
new citations and filing new petitions for assessment of
civil penalties.
In light of the foregoing, the subject withdrawal
orders are modified to 104(a) citations.
Issuance of Multiple Orders
Section llO(a) of the Act provides "Each occurrence of
a violation of a mandatory health or safety standard may
constitute a separate offense." The operator argues that
there was only one occurrence--moving the tailpiece, and
that therefore only one order should have been issued. The
operator also relies upon an MSHA policy memorandum dated .
October 3, 1979, which provides that:
[W]here there are multiple violations of the same
standard which are observed in the course of an
inspection and which are all related to the same
piece of equipment or to the same area of the
mine, such multiple violations should be treated
as one violation and one citation should be issued.
I cannot accept the operator's position.
In allowing separate
citations, section llO(a) refers to the occurrence of a
"violation" not the occurrence of an event which may be
composed of multiple incidents or happenings, each with its
own identity and each of which may independently violate the
Act for a different reason.
In this case moving the tailpiece involved several incidents such as miners inby the
equipment, failure to examine the equipment, lack of supervision by a certified person, absence of fire resistant

945

material, etc., each of which violated a different part_of
the mandatory standard. Section llO(a) allows each of these
to be cited as a separate violation. The MSHA memorandum
does not support the operator's position. The examples
given in the memorandum, ~' loose ground in four places
on a haulageway, make clear that the memorandum is directed
at the same thing happening more than once in the same area
or with respect to the same piece of equipment. Here
different things happened and each of .them violated a
different sub-section of the mandatory standard for a
different ~eason.
Accordingly, multiple violations properly were found
and separate orders, now modified to citations, were properly
issued for each of them. As set forth infra, the fact that
the violations arose out of the same event may be taken into
account in determining the appropriate amount of civil
penaltie~ to be assessed~
The Amount of Civil Penalties
Section llO(i) of the Act sets forth the factors which
must be considered in assessing civil penalties.
In accordance with the stipulations, I find the operator
is large in size, imposition of penalties will not affect
its ability to continue in business, and its history of
prior violations is rather significant. As agreed at the
hearing, I further find abatement was within a reasonable
time and in good faith (Tr. 29-30).
As shown by the testimony, the violations posed hazards
such as smoke inhalation.
I conclude they were moderately
serious.
As set forth above, I do not believe the operator was
guilty of unwarrantable failure.
However, since the recovery
foreman was on the scene and in charge of the move, the
operator must be held to have been negligent.
In addition,
I believe the fact that all violations were committed in
moving the tailpiece should be borne in mind in assessing
the degree of negligence and gravity. This situation is
somewhat different than where the operator commits several
wholly unrelated serious violations and is negligent in
situations which have nothing to do with each other.

946

In light of the foregoing, a penalty of $100 is
assessed for each of the violations cited in the six orders
now modified to citations.
Order
It is ORDERED that the Solicitor's motions to vacate
Orders 1121181 and 1121182 be GRANTED and that LAKE 81-118-R
and LAKE 81-119-R be DISMISSED.
It is ORDERED that 104(d) (2) Orders 1121183, 1121185,
1124038, 1124039, 1124040 and 1124041 be Modified to 104(a)
citations.
It is ORDERED that within 30 days of the date of this
decision the operator pay penalties of $600.

Law Judge
Distribution:

Certified mail.

John T. Scott, III, Esq., Crowell & Moring, 1100 Connecticµt
Avenue, N.W •. , Washington, DC 20036
Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department
of Labor, 881 Federal Building, 1240 East Ninth Street,
Cleveland, OH 44199

947

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

'1~'{ 2 6 \982

Civil Penalty Proceeding

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

Docket No. WEVA 81-11
A.C. No. 46-05653-03004

v.
Gail Mine
CLAY KITTANNING COAL CO., INC.,
Respondent
DECISION
Appearances:

David E. Street, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania, for
Petitioner;
William Ray, Summersville, West Virginia, for Respondent.

Before:

Judge Melick

This case is before me upon a petition for assessment of civil penalty
under section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et~-, the "Act," in which the Secretary has proposed
penalties of $2,000 against the Clay Kittanning Coal Co., Inc., (Clay
Kittanning) for four violations of mandatory standards. Clay Kittanning
does not deny the violations, but maintains that an independent contractor
was solely responsible for those violations and that therefore it is not
liable for any civil penalties under the Act. Accordingly, 'the general
issue in this case is whether Clay Kittanning is responsible in any way for
the admitted violations set forth in the petition for assessment of civil
penalty and, if so, what are the appropriate civil penalties to be assessed
for those violations. Evidentiary hearings were held in this case in
Charleston, West Virginia.
Liability of Mine Owner
Clay Kittanning is admittedly the owner of the Gail Mine at which the
orders and citation at bar were issued. William Ray, President and spokesman for Clay Kittanning insists, however, that the company was not at all
responsible for the cited violations because, at the time of the inspection,
the Gail Mine was being operated by an independent contractor, William White,
who was doing business as the Palma Coal Company.

948

Even assuming, arguendo, that Mr. Ray's allegations were correct, it is
now the clearly established law that mine owners may be held responsible
without fault for independent contractor violations under the Act. Section
3(d) of the Act; Cyprus Industrial Minerals Company v. FMSHRC, 664 F.2d 1116
(9th Cir. 1981; Republic Steel v. Interior Board of Mine Operations, S81 F.2d
868 (D.C. Cir. 1978); Bituminous Coal Operator's Association v. Secretary of
Interior, S47 F.2d 240 (4th Cir. 1977). The Secretary's decision to proceed
against an owner for such violations is, however, subject to review for
impermissible motives. Secretary v. Phillips Uranium Corporation, 4 FMSHRC
(April 27, 1982). Administrative efficiency or convenience is
apparently an impermissible motive regardless of the results achieved by the
Secretary's action. Phillips Uranium, supra. Since the Phillips decision
was rendered subsequent to the hearings in this case specific inquiry was not
made at those hearings into the Secretary's initial motivation for proceeding
solely against the mine owner herein. Evidence exists, however, from which
the Secretary's motives may be inferred.
At the time of the inspection here at issue, February 7, 1980, the
Secretary was following an interim policy of proceeding only against owneroperators for violations of the Act. Phillips Uranium, supra. Subsequently,
on July 1, 1980, the Secretary published his final rules establishing guidelines for holding independent contractors as well as owners responsible for
the safety and health requirements of the law. 4S Fed. Reg. 44494. Even
assuming, .arguendo, that the Secretary's motives were impermissible when the
citation and orders at bar were .issued under his interim policy, it is
apparent in this case that the Secretary later sought to correct any such
deficiencies by attempting to apply his new guidelines.
In an obvious good faith effort to apply those guidelines to the case at
bar the Secretary sought through formal discovery procedures under Connnission
Rules SS and S7, 29 C.F.R. §§ 2700.SS and 2700.S7 to ascertain the proper
entity or entities against whom enforcement action should be pursued.
Accordingly, on March 27, 1981, the Secretary served upon Clay Kittanning a
request for production of "any or all contracts between the owner/Respondent,
Clay Kittanning, Coal Co., Inc., and William White concerning the functions,
duties and responsibilities of William White at the Gail Mine prior to
February 27, 1980," and served written interrogatories relating to the
responsibilities for operation of the Gail Mine. Clay Kittanning did not
respond to either discovery request and the Secretary thereafter on June 17,
1981, filed a motion for sanctions against Clay Kittanning for this failure
to reply.
In response to that motion, the undersigned issued an order to
Clay Kittanning to show cause providing in part as follows:

* * * Respondent, Clay Kittanning Coal~Company, Inc., is
ordered to answer the said interrogatories and to produce the
documents requested by Petitioner within lS days or show good
reason for not doing so. Otherwise, the undersigned will take
appropriate sanctions. Such sanctions may include issuing an

949

order refusing to allow Respondent to support defenses relating to the requested information, prohibiting the introduction
of related evidence at any hearing in this case, and placing
Respondent in default and ordering immediate and full payment
of MSHA's proposed penalty. Rule 37, Federal Rules of Civil
Procedure.
Respondent failed to reply to the show cause order and on August 6,
1981, the undersigned issued pursuant to Federal Rule 37(b)(2)(A), an Order
That Facts Be Taken As Established. That Order provided that the following
facts be taken as established: (1) that Respondent is the operator of the
Gail Mine, within the meaning of section 3(d) of the Federal Mine Safety
and Health Act of 1977, and (2) that Respondent is the party solely responsible for the conditions and equipment cited for violations of the Act or
regulations in the above captioned proceeding." J:./
Under the circmnstances it is clear that the Secretary had acted reasonably and prudently in his efforts to ascertain the responsible party or
parties but was thwarted in these efforts by the failure of the mine owner to
comply with lawful discovery requests and orders of the Administrative Law
Judge. 2/ Clearly there was no abuse of the Secretary's discretion here.
This case is accordingly distinguishable from Phillips Uranium. Since Clay
Kittanning does not deny the existence of any of the violations the sole
issue remaining for determination is the amount of civil penalty for which
Clay Kittanning is responsible.
1/ Inasmuch as Mr. Ray contended at subsequent hearings that the Secretary
already knew the answers to the questions asked in the interrogatories, and
that it was therefore unfair to bar him from presenting evidence at hearing
on the question of the proper entity or entities to be held responsible for
the violations I allowed evidence at hearing concerning that issue. The
evidence did not demonstrate, however, that the Secretary had sufficient
information before initiating discovery from which he could have determined
these issues with any degree of certainty. Accordingly, the "Order That
Facts Be Taken As Established" issued August 6, 1981, is dispositive of the
issue of liability for the violations. It is also noted that although given
ample opportunity to do so, Mr. Ray never did provide complete information
concerning the relationship between employees, officials and shareholders of
Clay Kittanning and the employees and owners of Palma Coal Company, the
purported independent contractor. It was disclosed at hearing, however, that
the mine superintendent and certified electrician for the independent contractor was also an official of the corporate mine owner.
]:_/ It was also disclosed at hearing that the owner's relationship with the
independent contractor herein was terminated shortly after the citation and
orders at bar were issued and that Mr. Ray did not then know where the
contractor could be located.

950

..
The Amount of Penalty

§

Citation No. 650520 alleges a violation of the standard at 30 C.F.R.
75.703 and reads as follows:
No frame ground was provided for the roof bolting machine
in that the frame ground conductor was doubled back and taped
to the cable and was not connected to the return conductor at
the 250 volt direct current feeder line. This condition was
listed in the book for examination of the electric face equipment on 1/30/80 and was dated and initialed by Ed McClure,
superintendent and certified electrician at this mine. This
machine was parked in No. 3 entry and the mine·floor contained
water from 0 to 4 inches deep.

As previously noted, the existence of the cited conditions is not disputed.
Moreover, the uncontradicted testimony of MSHA inspector Willis is that if
one of the power conductors had been damaged and the damaged portion of the
cable had touched a metal part of the machine, the machine frame would become
energized thereby subjecting the machine operator to electrical shock. The
hazard was amplified by the existence of water and wet conditions on the mine
floor. Under the circumstances, I find that a serious hazard from electrical
shock in fact existed as cited and was "significant and substantial." See
Secretary v. Cement Division, National Gypsum Company, 3 FMSHRC 822 (1981).
I further find that Clay Kittanning was grossly negligent in permitting
the condition to exist. The fact that the frame ground had been doubled back
and taped to the cable, requiring some affirmative act, is clear evidence of
an intentional violation. Moreover, it is uncontradicted that an entry in
the inspection book for the cited machine, on January 30, 1980, some 8 days
prior to the discovery of the condition by Inspector Willis, showed that even
as of that date, it had not been frame grounded. The violation herein was
abated timely.

§

Order No. 650421 also alleges a violation of the standard at 30 C.F.R.
75.703 and reads as follows:
The cutting machine was not provided with a frame ground
in that the frame ground was doubled back and taped to the
cable and was not connected to the return feeder line of
the 250 volt direct current power system. This condition was
listed in the book for the examination of electric face
equipment at this mine and was dated and initialed by Ed
McClure, superintendent and certified electrician at this
mine. The cutting machine was located in No. 3 entry. The
mine floor in this entry was wet and water was 0 to 4 inches
deep.

The existence of the cited condition is not disputed nor is the testimony of
Inspector Willis that the negligence and the extent of the hazard was the

951

same as in the citation previously discussed. Accordingly, I find the same
degree of negligence and hazard existing here. The condition was apparently
properly abated on the following day. The violation was also "significant
and substantial" under the National Gypsum test.
•. §

Order No. 650426 alleges a violation of the standard at 30 C.F.R.
75.601 and reads as follows:
A suitable circuit breaker or other device approved by
the Secretary was not provided for the trailing cables
applying power 250 volts direct current to the roof bolting
and cutting machines at this mine. The cables were connected
directly to the 500 MCM DC feeder lines.

According to the undisputed testimony of Inspector Willis, the trailing cable
was not protected its entire length. Willis found that insulation had been
removed from the trailing cable and the cable was clamped directly to the
500 MCM feeder line without intervening fuses or a circuit breaker. He
pointed out that in the absence of short circuit protection for the trailing
cable, there was indeed a hazard of fire or, if the insulation melted to
expose the cable, of shock or electrocution. Willis observed that the operator did not have on the premises sufficient equipment to correct the cited
conditions. Superintendent McClure, who was also the only certified electrician at the mine, acknowledged the deficiencies and admitted that he did
not have a fuse, circuit breaker, or other overload device·available at the
mine to correct the deficiencies.
Under the circumstances, I find that the cited condition was a serious
hazard to the miners and, because it required an affirmative act to create,
was the result of gross negligence. The violation was accordingly "significant and substantial." One of the cited conditions was corrected by the
following day when a 125 amp dual element fuse was furnished for the cutting
machine. A 90 amp duel element fuse was not provided for the roof bolting
machine until later and the violation relating thereto was not abated until
February 14, 1980.
§

Order No. 650428 alleges a violation of the standard at 30 C.F.R.
77.701 and reads as follows:
The metal frame of the battery charger located near
No. 1 entry on the surface was not frame grounded in that the
grounding conductor was connected to the grounding medium.

The order was subsequently modified to read as follows: "Order of Withdrawal
No. 6540428 is modified to state that the grounding conductor was not
connected to the grounding medium for the 240 volt system." The uncontradicted testimony of Inspector Willis is that such a condition would present
a shock hazard if the battery charger were to develop a short circuit and
energize the frame of the battery charger. The cables leading into the
charger were located only a foot off the ground in an area commonly used by

952

miners. I find that the condition accordingly presented a risk Qf serious
injury from electrical shock. The violation was accordingly "significant and
substantial." Inasmuch as the condition required an affirmative act to
create, I find that it was the result of gross negligence.
In determining the appropriate penalties for the admitted violations, I
have considered the relationship of the mine superintendent for the independent contractor with the mine owner. Both before and after the violations
here cited that same individual, Ed McClure~ had also acted as mine superintendent for the mine owner and at relevant times was also an official of the
corporate mine owner. Since that same person was also the only certified
electrician at the Gail Mine and since each of the violation's in this case
was clearly caused by affirmative action to electrical equipment or electrical cables it is apparent that the negligence for the violations may be
directly attributed to the corporate mine owner, i.e., Clay Kittanning.
Secretary v. Ace Drilling Coal Company, Inc., 2 FMSHRC 790 (April 1980).
In determining the amount of penalty I have also considered that the mine
owner was·small in size and had no history of violations. Under the circumstances ·I find that the following penalties are appropriate: Citation No.
650520-$600; Order No. 650421-$600; Order No. 650426-$600 Order No.
650428-$600.
ORDER
Clay Kittanning Coal Company, Incorporated is ordered to pay penalties
of $2,400 within 30 days of the date of this decision.

Distribution:
David E. Street, Esq., Office of the So citor, U S. Department of Labor,
14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Mr. William Ray, President, Clay Kittanning Coal Company, Inc.,
P.O. Box 296, Summersville, WV 26651 (Certified Mail)

953

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

HAY 271982

)

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

)

CIVIL PENALTY PROCEEDING

)

)

DOCKET NO~ LAKE 81-116-M

)

v.

)

A/C No. 21-00282-05021 V

)

UNITED STATES STEEL CORPORATION,
)
)
Respondent.
~~~~~~~~~~~~~~~~->

MINE: Minntac

)

UNITED STATES STEEL CORPORATION,
Contestant,

)

CONTEST OF CITATION PROCEEDING

)

)

DOCKET NO. LAKE 81-77-R

)

v.

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

)
)

Citation No. 293731
Issued December 29, 1980

)

)

MINE: Minntac

)
~~~~~~~~~~~~~~~~~~

DECISION
APPEARANCES:
Peter D. Broitman, Esq., and Janet M. Graney, Esq.
Office of the Solicitor
United States Department of Labor
230 S. Dearborn Street, Eighth Floor
Chicago, Illinois 60604
For the Petitioner
Louise Q. Symons, Esq.
United States Steel Corporation
600 Grant Street
Pittsburgh, Pennsylvania 15230
For the Respondent
Before: Judge Virgil E. Vail
STATEMENT OF THE CASE
The above two cases, which were consolidated for hearing, involve an
alleged violation of section llO(a) of the Federal Mine Safety and Health

954

Act of 1977 (hereinafter the "Act"), 30 U.S.C. 820(a) (Supp. 111,
1979) •.!/
Docket No. Lake 81-116-M involves a petition by the Secretary of
Labor, (Secretary), for assessment of a civil penalty against respondent
for an alleged violation of 30 C.F.R. § 55.12-14. ];/
Docket No. Lake 81-77-R involves a Notice of Contest filed by the
respondent of Citation No. 293731 which alleged a violation of section
104(d)(l) of the Act. The Secretary filed a motion to amend its petition
changing a violation of 104(d)(l) to a violation of section 104(a) of the
Act, and a reduction of the proposed assessment of a penalty of $750 to
$345. This motion was granted.
A hearing was held in Duluth, Minnesota, where the parties were
represented by counsel. Post-hearing briefs were filed.
STIPULATION
The parties stipulated to the following:
1.

The Administrative Law Judge has jurisdiction in this matter.

2. The inspector who issued Citation No. 293731 is and was a duly
authorized representative of the Secretary.
§

3. U.S. Steel is a large operator within the meaning of 39 C.F.R.
100.3(b)(2)(ii).

§

4. Minntac, is a large mine within the meaning of 30 C.F.R.
100.3(b)(l)(ii).

1/

Section llO(a) of the Act provides as follows:

The operator of a coal or other mine in which a violation occurs of a
mandatory health or safety standard or who violates any other provision of
this Act, shall be assessed a civil penalty by the Secretary which penalty
shall not be more than $10,000 for each such. violation. Each occurrence of
a violation of a mandatory health or safety standard may constitute a
separate offense.
2/

30 C.F.R. 55.12-14 states in pertinent parts as follows:

••• When such energized cables are moved manually, insulated hooks,
tongs, ropes, or slings shall be used unless suitable protection for
personnel is provided by other means ••••

955

5. Joint Exhibit A (computer printout) represents a true and correct
record of all violations for Minntac Mine for the p~riod beginning January
1, 1977 and ending January 1, 1981.
6. If a violation is found, the assessment of the proposed penalty
would not impair U.S. Steel's ability to remain in business.
7. Exhibit Bis a true and correct copy of a safety memorandum
prepared by U.S. Steel for dissemination to its employees on or about
December 18, 1980.
8. The following employees manually moved the cable identified in
Citation No. 293731 on December 29, 1980 without the use of protective
hooks, tongs, ropes, slings, or other personal protective equipment: Eugene
Varani, Mary Ellen Jaskela, Michele Heinzer, Richard Paine, Terrance
Stachovich.
ISSUES
Whether respondent violated 30 C.F.R. § 55.12-14, and, if so, the
appropriate amount of the civil penalty which should be assessed for such
violation pursuant to section llO(a) of the Act?
FINDINGS OF FACT
1. Minntac is a large taconite mine utilizing approximately fourteen
drills and twenty-eight shovels in its operation. Each piece of equipment
is electrically powered through a trailing cable which varies in length but
averages from four to five thousand feet and sometimes reaches nine
thousand feet.
2. The type of trailing cable primarily used at Minntac is U.S. Steel
Tiger brand rated at 8kV (8000 volts) with a weight of approximately three
pounds per foot. It is a shielded type cable incorporating three copper
phase conductors each wrapped with an insulating material and encased in a
braided wire mesh which in turn is in physical contact with two ground
wires. There is also a separate insulated ground wire 1n the system that
can be used as a continuous ground monitor. Minntac does not have a continuous ground monitor system in use. 1/
3. The trailing cables attached to the various pieces of equipment
run to either a substation or a meter house. The substation is a building
on a platform containing a transformer and various electrical switching and
metering devices capable of serving four pieces of equipment used in the
mining process. In those situations where the substation does not contain
OCB 1 s (oil circuit breakers) a meter house is used to feed the electrical
current to the equipment.

3/

Joint Exhibit C.

956

4. After the trailing cable is attached from its power source to the
piece of equipment it is to serve and energized, the system is so designed
that should a disruption or break (fault) in the electrical system occur,
the current goes to the ground wire in the cable and is carried back to the
meter house or substation where it trips a circuit. breaker. A phase-toground fault will trip the circuit breaker in the meter house in one-one
hundreds (.01) of a second. A second back up ground-fault tripping device
located usually in the substation is set to trip in three seconds. The
ground-fault system is designed to trip the circuit breakers whenever there
is a leakage of 5 amps or more of current.
5. Respondent utilizes four procedures for testing trailing cables,
particularly when reconnecting a trailing cable to the piece of equipment
it is intended to power. ·After one end of the trailing cable is attached
to the piece of equipment it is to power and the other end to the meter
house or self-contained substation, the electrician, using a special
testing transformer, will perform a high voltage test by placing more than
twice the voltage on the three copper phase wires than is used in normal
operations. A high current test will show if there is a fault in the cable
as it will likely burn at that location. A third test, termed a continuity
test, is to determine if the ground wire from the piece of equipment to the
meter house is intact. The fourth test is a ground tripping test to
determine that the ground-fault tripping system is working properly. 4 ;
6. Respondent's employees at Minntac are assigned the task of moving
trailing cables manually and in the past have done so without using
protective gloves.
7. There are no recorded instances of anyone receiving an
electrically caused injury from handling trailing cables at respondent's
Minntac Mine since the mine started in 1967.
8. On December 18, 1980, a general safety contact was issued by
respondent to its employees which stated as follows:
General Safety Contact (I.e. #18)MSHA Regulation 55.12-14
A recent interpretation of this regulation requires
that insulated hooks, tongs, ropes, slings, or proper gloves
be used to handle live 4160 volts or 440 volt trailing cables
(shovels, drills, pumps, etc.). As rapidly as possible, we
are providing this equipment for use in handling such cables.

4/

Exhibit R-4.

957

Although this is not a company safety rule, and we feel
that there is not a safety hazard with our present method of
handling this type of. cable, the MSHA regulation must be complied with. M. Van Deline, Superintendent - Taconite Mining.
(Emphasis is that of U.S. Steel). 2J
·
9. On December 29, 1980, a cable crew consisting of five of
respondent's employees manually moved a trailing cable energized to a
potential of 4160 volts without using hooks, tongs, ropes, slings, or the
electricians gloves that had been supplied them by their employer.
10. The respondent's ground-fault system is set to trip out or
disconnect at a level of five amps or more. E~posure of miners.to current
with amps in excess of five milliamps has a potential for injury. Miners
exposure to amps between 5 milliamps and the 5 amps required to trip the
ground-fault system has the potential of causing serious injury or death.
DISCUSSION
Minntac Mine is a large taconite mine utilizing approximately fourteen
drills and twenty-eight shovels in its mining process. These machines are
powered electrically through power cables which are also referred to as
trailing cables. As a result of an inspection of Minntac Mine on December
29, 1980, Citation No. 293731 was issued charging a violation of mandatory
safety standard 30 C.F.R. § 55.12-14 which provides as follows:
Power cables energized to potentials in excess of 150 volts,
phase-to-ground, shall not be moved with equipment unless sleds
or slings, insulated from such equipment, are used. When such
energized cables are moved manually, insulated hooks, tongs,
ropes, or slings shall be used unless suitable protection for
persons is provided by other means. This does not prohibit
pulling or dragging of cable by the equipment it powers when
the cable is physically attached to the equipment by suitable
mechanical devices, and the cable is insulated from the equipment in conformance with other standards in this part.
At the commencement of the hearing in this case, the parties
stipulated that five of respondent's employees manually moved a trailing
cable which was energized to a potential in excess of 150 volts, phase-toground, withqut using insulated hooks, tongs, ropes, slings, or other
personal equipment such as protective gloves which had been furnished
employees for such use (Tr. Vol. 1, p. 13).

~

Joint Exhibit B.

958

Historically, respondent's employees have been manually moving
trailing cables without using protective gloves for several years prior to
December 1980. Respondent has in the past relied upon a belief that the
ground-fault system in the shielded power cable and four testing procedures
used whenever cable is reconnected to equipment affords suitable protection
by other means within the requirement of the standard for miners manually
moving energized cable (Tr. Vol. 13). However, several events occ.urred in
1980 which prompted respondent to issue a general safety contact on
December 18, 1980 providing for the use of proper gloves, in addition to
other devices required by § 55.12-14, whenever energized cable is moved or
handled manually (Finding No. 8, supra)~
The first event involved a Commission decision in the Matter of
Pickards Mather and Company v. MSHA, (Case Nos. 79-MS12 and 79-MS19;
September 18, 1980) which involved petitions by Hibbing Taconite and Erie
Mining Company for a modification of the application of § 55.12-14 wherein
they argued .that their ground-fault system constituted suitable protection
for employees by other means. These two companies are involved in taconite
mining similar to the respondent's mining operation, but did not utilize
identical ground-fault system and testing procedures as that used by this
respondent. The petitions for modification were denied. Based upon
testimony he heard at the hearing and the decision in the Pickards Mather
Case, MSHA inspector James Begley contacted respondent's management in
September 1980 advising them that he intended to start issuing citations if
he saw:miners moving cable without wearing proper gloves (Tr. Vol. , p.
26). As indicated in the respondent's safety contact, gloves were to be
provided for the employees, but as stated iri the last paragraph, respondent
did not feel there was a safety hazard with the present method of handling
cable (Exhibit B, supra).
The issue in this case is not whether electricians gloves constitute
other proper suitable protection as provided in § 55.12-14 for the gloves
furnished by respondent were not being used by the miners when the citation
was issued. The sole issue here is whether respondent's ground-fault
system and the testing procedures constitutes other means of suitable
protection fo~ persons handling energized cable within the meaning of
§ 55.12-14. 6/
Respondent contends that the trailing cable used at its Minntac Mine
provides a ground-fault system that provides suitable protection for
persons as required in § 55.12-14. They point out that the cable is rated
at 8000 volts whereas the cable usually only carries 4160 volt and that
each of the three copper phase wires enclosed in the cable is surrounded by
insulating material with a dialectric strength of 8000 volts surrounded by
a braided wire mesh in physical contact with two ground wires. Respondent
argues that if a fault occurs in this cable, or the equipment served by the

6/

Respondent's Brief, page 5.

959

cable, the current would leak to the ground wires, which conduct the
current back to the meter house where it would trip the circuit breaker
shutting off the current allegedly preventing an electrical shock.
Respondent also contends that its four field tests performed on the
trailing cable whenever it is reconnected to the equipment would reveal any
fault in the cable and reveal to the electrician testing same, whether the
cable is intact or damaged and whether the ground fault tripping system is
working. Respondent further contends that its experience and that of other
mining operators with similar ground fault systems is such that there have
been no proven electrically caused injury from manually moving these
trailing cables while they are energized.
A careful review of the record in this case shows that, in spite of a
remarkable history of no proven electrical injuries from handling trailing
cables, a potential for serious injury or death from such activities is
present at all times. Phillip Medure, who is an electrician for the
respondent, testified that the trailing cables at Minntac can be in service
for periods of time up to nine.years and are exposed to varied weather and
·operating conditions including extreme hot and cold temperatures, rain and
snow, and various types of physical abuse including dragging the cable over
rocks, snow, lying in snow and water and being run over by equipment which
is a frequent occurrence. Medure stated that when the cable becomes
damaged, it is usually spliced in the field with either a pipe splice or
what is termed a 3M splice (Tr. Vol. 1, pages 57 to 64). The evidence is
clear that the trailing cables can be damaged accidentally including cuts,
slices and nicks in the rubber type material that encases the copper phase
wires and ground wires.
Respondent contends that should the trailing cable be damaged severely
enough to cause a leak of current, the ground-fault system will provide for
the circuit breaker to trip cutting off the current. However, respondent's
argument is based on the fact that the ground wire is intact and that the
amount of amps to the circuit breaker is at least 5 amps for the circuit
breaker is set to trip at that level or above.
I find that the most credible evidence shows that personnel exposure
to ampres above five milliamps or five one thousands of an ampre can result
in injury or death (Vol. I, page 119). William Helfrich, an electrical
engineer experienced in electrical systems in mining testified that the
ground-fault system incorporated in respondent's trailing cables is
designed to protect the equipment rather than persons handling the cables.
I find this evidence along with statements of other witnesses, most
convincing on this point. James McNamara, respondent's field electrical
foreman at Minntac testified that it was possible for damage 'to occur to
the trailing cables due to the adverse conditions to which they are exposed
and that a person coming in contact with this type of damage could be
injured (Vol. 2, pages 27 and 28). Frank Erjavec, respondent's General
Foreman for pit electrical operations, testified that if the system were
intact, a person touching the shield in the cable would not feel anything

960

on an energized cable. However, he agreed that if the system is not
intact, you could get a leakage of current through the body (Vol. 2, page
54). Witness Helfrich testified that the shield in the trailing cable is a
fine wire netting and can become easily broken making it potentially
dangerous to persons coming in contact with it (Tr •• Vol. I, pages 122 and
123).
.
Respondent's employee Medura testified that he has experienced
situations where splices in the cable have pulled apart and the machine
continues to run and the circuit breaker failed to trip out. Also, once
during the testing procedure while reconnecting a cable, he found the
ground wire was not properly connected and the meter showed continuity in
the wire (Vol. I, pages 62 through 68). Mary Jaskela, a drill laborer for
respondent, testified that her duties included moving trailing cable for.
drills. On one occasion, after a cable had been reconnected and tested by
the electrician, she was told that it was all right to move the cable and
while she was standing near the cable, felt a hot flash on her leg which
was caused by a small hole in the cable (Tr. Vol. I, pages 100 to 102).
These experiences by miners in handling and working around trailing cables
contradicts the respondent's argument that the ground-fault shielded cable
and testing system is adequate personnel procedure. Although the history
for electrical injury in handling trailing cables is remarkable, I find
that the most credible evidence supports petitioner's contention that the
potential for serious injury or death always exists unless some further
precaution.a are taken. The same conclusion was reached in a recent case
Secretar of Labor, MSHA v. United States Steel Corporation, Docket No.
WEST 80-58-M April 1982 wherein the Judge affirmed a similar violation of
§ 55.12-14 stating in part as follows:
••• that when the energized power cables are moved manually
the ground fault system is not suitable protection from the
electrical hazards provided by means other than insulated
hooks, tongs, ropes, or slings as called for in the cited
regulation.
In view of the foregoing, and after careful consideration of all of
the facts, I find that there is substantial evidence to support a finding
that the respondent violated 30 C.F.R. § 55.12-14.
ORDER
Citation No. 293731 is affirmed. The Notice of Contest in Docket No.
LAKE 81-77-R is dismissed. Respondent is ordered to pay a civil penalty in
the sum of $345.00 within 30 days of the date of this decision.

Virgi
• Vail
Admin" trative Law Judge

961

Distribution:
Peter D. Broitman, Esq.
Janet M. Graney, Esq.
Office of the Solicitor
United States Department of Labor
230 S. Dearborn Street, Eighth Floor
Chicago, Illinois 60604
Louise Q. Symons, Esq.
United States Steel Corporation
600 Grant Street
Pittsburgh, Pennsylvania 15230

962

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

MAY 281982

ROGER D. ANDERSON,

Complaint of Discrimination
Complainant

v.

Docket No. WEVA 80-73-D

ITMANN COAL COMPANY,

Itmann No. 3A Mine
Respondent
DECISION

Appearances:

F. Alfred Sines, Jr., Esq., for Complainant;
Jerry F. Palmer, Esq., for Respondent.

Before:

Judge William Fauver

This proceeding was ·brought by Roger D. Anderson under section 105(c) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 891 et seq., for
an alleged discriminatory discharge. The case was heard in Charleston,
West Virginia. Both parties were represented by counsel, who have submitted
their proposed findings, conclusions, and briefs.
Having considered the contentions of the parties and the record as a
whole, I find that the preponderance of the reliable, probative, and substantial evidence establishes the following:
FINDINGS OF FACT
1. At all pertinent times, Respondent, Itmann Coal Company, operated a
coal mine known as the Itmann No. 3A Mine in Itmann, West Virginia, which
produced coal for sales in or substantially affecting interstate commerce.
The Complainant, Roger D. Anderson, was employed by Respondent as a section
foreman on the evening shift at the Itmann No. 3A Mine.
2. Complainant began his employment with the Consolidation Coal Company
on February 24, 1970, as a coal sampler at the Rowland Coal Preparation Plant.
On November 18, 1972, he was·promoted to environmental technician and on
August 1, 1973, to safety coordinator. On January 1, 1974, he was promoted
to safety inspector and on December 1, 1974, to section foreman. On March 1,
1975, he rec.eived another promotion to safety inspector and a transfer to the
Itmann Operations. On February 1, 1977, he became an assistant accident
investigator. On .July 1, 1978, he was promoted to section foreman at Itmann
No. 3A mine, which position he held at the time of his discharge on July 30,
1979.

963

3. The 3A mine is a large coal.mine involving approximately 250
miles of entryways and airways, 30 beltheads; 8 active sections, and
extensive amount of gob area.
4. At all pertinent times, Dave Bailey was the mine superintendent at
the Itmann 3A mine. The Itmann 3A mine ran three shifts: the hootowl (12-8),
the dayshift (8-4), and the evening shift (4-12). The mine superintendent
was in overall charge of all three shifts, and had six assistants. These were
categorized as lead foreman (shift foremen) and assistant foremen. Each shift
would have one of each and the dayshift lead foreman and his assistant were
also known as the mine foreman and assistant mine foreman.
5. On the evening shift on July 29, 1979, Roger Lamastus was the lead
foreman, Larry Kiser was assistant lead foreman, Mickey _Sizemore was the
belt foreman, and Complainant was a section foreman.
6. As section foreman, for about 15 months, Complainant reported to his
immediate supervisor, Roger Lamastus, lead foreman on the evening shift.
7. Complainant attended various training classes and courses held by the
Itmann Coal Company and scored 88 percent or better on various tests and exams
given by Respondent. Complainant attended a managerial grid school in 1975 in
Dallas, Texas. This school was sponsored by Respondent and all expenses were
paid for Complainant for one week. Complainant attended a job safety analysis
school in Pittsburgh, Pennsylvania, sponsored by the Respondent in which all
of his expenses were paid. Complainant also attended the Dale Carnagie course
sponsored by the Consolidation Coal Company. All courses, seminars, and
schools attended by Complainant were completed without missing any classes or
failing any exams.
8. As section foreman, Complainant regularly worked 5 weekdays; every
other weekend h2 also worked either on Saturday or Sunday.
9. Weekend duties normally involved preparing the mine to produce coal
on the next coal producing shift. Usually on Thursday, the lead foreman
would assign men to report for duty the upcoming weekend. Roger Lamastus and
his assistant, Larry Kiser, were in charge of assigning weekend duties and
seeing that they were carried out. Roger Lamastus and his assistant alternated as lead foreman on weekends.
10. On Thursday, July 26, 1979, Roger Lamastus, evening shift mine
foreman (4:00 p.m. to 12:00 midnight shift), instructed Mickey Sizemore and
Complainant to report for weekend duty on the Sund~y shift, July 29 (4:00 p.m.
to 12:00 midnight). Roger Lamastus had scheduled several UMW employees to
report for the Saturday shift (4:00 p.m. to 12:00 midnight) to make an equipment move.
11. On Sunday, Mickey Sizemore and Complainant 7.e~orted to the mine office
about 3:10 p.m. About 3:30, Complainant picked up the mine fireboss book and

964

opened to the last entry in the book, read and countersigned that entry. This·
was the entry
for the 12:01 a.m. to 8:00 a.m. shift on Sunday, July 29.
Roger Lamastus picked up the mine fireboss book and looked at the last entry,
but did not sign it.
12. Minutes later, Lamastus summoned Mickey Sizemore, Complainant and the
UMW employees around the company's supply truck. Lamastus explained the
equipment move he and his crew had started on the Saturday evening shift.
Lamastus drew a diagram in the dust on the truck hood to explain his instructions to Complainant to complete the equipment move. He said it had to be
finished
so that the Sunday, midnight shift could run coal.
Lamastus then led Complainant to the foremen's room, where he showed him
on the mine map what had to be done, and to the superintendent's office,
where he drew on a legal pad to illustrate the configuration of the equipment move. He stressed the importance of doing it correctly so coal could
be produced on the upcoming midnight shift.
Shortly after 4:00 p.m., while Complainant was sitting in his buggy,
Roger Lamastus stepped from the mine office door opening, looked at his
watch, looked at Complainant, and shouted a.curt order
to Complainant
to get underground. Complainant went underground as directed.
13. About 7:30 that evening, Foreman Sizemore was notified by the
dispatcher that James Bowman, MSHA inspector, wanted Sizemore and Complainant
to come outside the mine.
Sizemore and Complainant Anderson reached the outside about 7:45 p.m.
James Bowman, who was waiting for them, directed questions to Complainant,
because he knew Complainant and did not know Sizemore. He asked Complainant
how many men were underground. When Complainant replied, "seven or eight,"
Bowman asked whether he was aware that there had not been a preshift examination of the mine in the hours from 8:00 to 4:00. Complainant said he knew
that, but company policy, and federal regulations to his knowledge, required
preshift examinations only once every 24 hours on weekends. Inspector Bowman
then said, "Your mine is now under a 104(d)(2) order, which is under the Act
an unwarrantable failure closure order."
At the hearing, Inspector Bowman explained that he questioned the
foremen as to their knowledge of the lack of a preshift examination in order
to determine what kind of order should be issued. Complainant's admission was
an important factor in Bowman's decision to issue an unwarrantable failure
order.
14. Complainant called Bobby McBride, dispatcher, and instructed him to
call the men underground out of the mine. Mickey Sizemore called Roger
Lamastus to inform him that James Bowman had issued a 104(d)(2) closure
order.

965

While Mickey Sizemore was talking to Roger Lamastus on the phone,
James Bowman and Complainant discussed their opposing interpretations
of Part 75.303 of the regulations requiring preshift examinations.
At about 9:30 p.m., David Bailey, superintendent, arrived at the
mine and talked to Mi'ckey Sizemore concerning the f ireboss book.
The following day, Monday, July 30, 1979, David 'Bailey called
Complainant to his office and gave Complainant a choice of resigning
or being discharged. Complainant asked, "Why?", and David Bailey
pointed to the closure order. Complainant said it was not his nature
to quit. Complainant was discharged on that date.
DISCUSSION WITH FURTHER FINDINGS
The MSHA inspector issued the order of withdrawal on Sunday, July 29,
1979, after examining the preshift books and discovering the mine had been
last preshifted more than 8 hours before the evening shift, in violation of
30 C.F.R. § 75.303. 1/ The Complainant and another foreman
working that
shift
had been c"Rlled to the surface to speak with the inspector before
the order was issued. The inspector asked the Complainant if he knew the mine
had not been preshifted within 8 hours. The Complainant stated that he knew
that, but that compary policy, and federal regulations, to his knowledge,
required preshift exeminations only once every 24 hours during weekends.
Thereupon, the inspector showed Complainant the text of the regulation and
issued an order. That order, not the subject of this proceeding, reads in
part:
A preshift examination was not made within 8 hours immediately preceding the entrance of miners scheduled to work in
active workings. The section foremen in charge of the mine
stated that they knew the mine had not been preshift examined
on the preceding shift. Four other men worked over-time from
the preceding shift making a total of 11 miners underground on
the 4:00 p.m. shift, and a preshift was not made.
Mine management subsequently discharged the Complainant for knowingly
violating a federal mine safety law, whereupon Complainant filed this action.

"J:]

Section 75.303 provides, in part:
"(a) Within 3 hours immediately preceding the beginning of any shift,
and before any miner in such shift enters the active workings of a coal mine,
certified persons designated by the operator of the mine shall examine such
workings andany other underground area of the mine designated by the Secretary or his authorized representative * * *· Each such mine examiner shall
also record the results of his examination with ink or indelible pencil in a
book approved by the Secretary * * *

966

The facts show that the Complainant, the belt foreman, and the supervisory
shift foreman all believed that company policy required preshift examinations
of the mine on1y once every 24 hours on weekends. The evidence clearly shows
that on Sunday, July 29, they acted according to this belief.
Complainant's supervisor held the same mistaken beliefs concerning the
regulations requirements and he knew Complainant was unaware that the 8-hour
inspection rule applied during weekends. These facts were apparently ignored
by, or not connnunicated to, the company vice presidents who decided to fire
Complainant for "knowingly" violating a federal mine safety law.
The result was that management discharged Complainant for conduct which
in fact was a good faith belief by Complainant and was simply hi~ compliance with
orders from his immediate supervisor, who received no discipline. If the
company management discharged Complainant knowing this situation, their action
was arbitrary and discriminatory. If" they discharged him without knowing this
situation, they were arbitary, discriminatory, and grossly negligent in
failing to interview Lamastus and check with other personnel, and examine the
preshift books, to inve~tigate Complainant's side of the story, which would
have been borne out by any reasonable investigation into the facts.
Management's arbitrary treatment of Complainant establishes, by a preponderance of the evidence, that the effective motivation for his discharge was
Complainant's admission to the inspector in which he stated that he knew the
mine had not been preshifted within 8 hours. It was this admission that
contributed to the federal inspector's issua~ce of a closure order.
Section 105(c)(l) of the Act]:_/ protects miners against discrimination
for filing or making a safety complaint under the Act, for instituting a
proceeding under or related to the Act, and for other protected activities.
The drafters of section 105(c)(l) stated that "(t)he listing of protected
rights contained in section (105)(c)~l) is intended to be illustrative·
and not exclusive (and should) be construed expansively to assure that miners
will not be inhibited in any way in exercising any rights afforded by the
legislation." S. Rpt. No. 95-181, 95th Cong., 1st Sess. 36 (1977), reprinted
in Legislative History of the Federal Mine Safety and Health Act of 1977 at
624 (1978). I find that Complainant's statements to the inspector were
protected activities under the Act. Complainant made his statements in
response to a question posed by a federal inspector. He responded truthfully
and to the best of his knowledge. As such, he was participating in an
investigation of mine safety with a federal inspector, actions which fall
under the prot~ction of the Act. £!: Pace· v. Consolidation Coal Company,
3 FMSHRC 176 (January 13, 1981). I therefore find that the Complainant was
engaged in activities protected by section 105(c).

J:../

Quoted on p. 7

967

To find otherwise would frustrate the purposes of the Act. Miners in
positions similar to Complainant's would be encouraged not to cooperate with
safety inspectors, thereby creating danger for themselves and other miners,
if they knew they could be discharged for their statements. The government's
investigative functions would be severely impaired and the policy of the Act
would be thwarted.
Complainant engaged in protected activities and those activities were an
effective or substantial motive for his discharge. His discharge was
therefore discriminatory, in violation of section lOS(c) of the Act.
CONCLUSIONS OF LAW
1. The Commission has jurisdictfon over the parties and subject of
this proceeding.
2. Respondent violated section
lOS(c)(l) of the Act by a discriminatory
discharge of Complainant, as found above.
3. Complainant is entitled to reinstatement, back pay with 12 percent
interest, attorney's fee, and other reasonable costs of prosecuting his
complaint herein, and other relief to be specified in a .final order.
PENDING A FINAL ORDER
Pending a final order, counsel for the parties are directed to confer in
an effort to stipulate the amount of back pay, interest, attorney's fee, and
costs due Complainant under this decision, and to stipulate the other terms
of a proposed final order.
If counsel are unable to stipulate as to any particular point, counsel
for Complainant should file a proposed final order and Respondent shall be
granted leave to reply to it and, if necessary and appropriate, a further
evidentiary hearing will be held on issues of material fact bearing on
the relief to be accorded to the Complainant.
Accordingly, counsel for Complainant should file herein, not later than
30 days from receipt of this decision, either (1) a joint proposed final
order or (2) his own proposed final order with an explanation of issues
existing between the parties as to such order.

f))~~v~
WILLIAM FAUVER,

968

JUDGE

Distribution Certified Mail:
F. Alfred Sines, Jr., Esq., Anderson & Sines, Drawer 1459, Beckley,
WV 25801
Jerry F. Palmer, Esq., Itmann Coal Company, 1800 Washington Road,
Pittsburgh, PA 15241

];./

Sectiop 105(c(l) of the Act provides:

(c) (1) No person shall disch·arge or in any manner discriminate against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal or other mine subject to this
Act because such miner, representative of miners or applicant
for employment has filed or made a complaint under or related to this Act, including a complaint notifying the operator or
the operator's agent, or the representative of the miners at
the coal or other mine of an alleged danger or safety or health
violation in a coal or other mine, or because such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential transfer µnder a
standard published pursuant to section 101 or because such
miner, representative of miners or applicant for employment
has instituted or caused to be instituted any proceeding under
or related to this Act or has testified or is about to testify in
any such proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on
behalf of himself or others of any statutory right afforded by
this Act.

969

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JOSEPH PASTINE
Applicant

MAY 281982

22041

Complaint of Discharge
Discrimination or Interference
Docket No: WEVA 81-393-D
MORG CD 81-16
Susan No. 1 Mine

v •.

FAIRFAX TRUCKING COMPANY,
Respondent
ORDER GRANTING MOTION TO WITHDRAW
MSHA, with the consent of Mr. Pastine, has moved to withdraw its
complaint of discrimination that it filed on Mr. Pas tine's behalf. Its
reason for filing the motion is that subsequent investigation has indicated
that there was no violation.
MSHA has stated that its position is that Mr. Pastine should be
able to file his own complaint under Section 105(c)(3) of the Act within
30 days after the case is dismissed if he chooses to do so. The Act,
however, does not address the situation where the government files an
action on a miner's behalf and later changes its mind and obtains a
dismissal of the case. The government's proposition is equitable,
however, and if Mr. Pastine should choose to file an action on his own
behalf he would certainly have an argueable position. But I do not see
that any ruling that I might make in the instant case could have any
effect on a case he might file in the future.
The Motion to withdraw is granted and the case is dismissed.

~C/J?~~-

charles C. Moore, Jr.,
Administrative Law Judge
Distribution:

By Certified Mail

Covette Rooney, Esq., Office of the Solicitor, U.S. Department of
Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia,
PA 19104
Harry A. Smith, III, Esq., Counsel for Fairfax Trucking Company,
P.0.B. 1905, Elkins, WV 25241
James G. Polino, President, Fairfax Trucking Co., P.O.B. 230,
Elkins, WV 26241

970

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

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

-HAY 281982

CIVIL PENALTY PROCEEDING
Docket No. PENN 82-29
A.C. No. 36-00970-03111

v.

Maple Creek No. 1 Mine
U.S. STEEL MINING COMPANY,INC.:
Respondent
DECISION AND ORDER OF DISMISSAL
Appearances:

David Bush, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for·Petitioner;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge .Melick

This case is before me upon a petition for assessment
of civil penalty under section llO(a) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., the
"Act", in which the Secretary has proposed a penalty for an
alleged violation on September 17, 1981, of a mandatory
safety standard. The Secretary's petition was filed on
January 6, 1982, and was answered by the U.S. Steel Mining
Company, Inc., (U.S.Steel) on January 18, 1982. Notice was
issued on February 24, 1982, scheduling hearings to commence
on May 3, 1982. An amended notice was issued on April 6,
1982, rescheduling the hearings for May 4, 1982.
The Secretary's case-in-chief was purportedly to be
presented at.hearing through the testimony of an MSHA inspector. The inspector proceeded to testify, however, about
a citation unrelated to the case at bar (Citation No. 1145239
issued March 31, 1982). After discovering his error, the
inspector conceded that he was unable to recall the facts
relating to the citation at issue in this case. Counsel for
the Secretary explained that the two citations charged
violations of the same standard and the factual allegations
in each were similar. He further preferred that, inexplicably, the citations became mixed up during prehearing
preparations.
Under the circumstances_, I granted a recess to permit
the inspector to contact his off ice to locate his notes for
the purpose of refreshing his recollection about the citation at issue. Although it was made clear that at least an

971

hour's recess would be granted for this purpose, it appears
that no effort was made to search for the notes and no
explanation given except that "it would.be impossible [to
locate the notes] unless [the inspector himself] was present." Counsel for the Secretary thereupon conceded that he
was unable to present any evidence to support his case and
requested a further continuance for an unspecified time.
In deciding that no further continuance was warranted,
I considered:
(1) that more than 60 days notice of hearing
was provided the Secretary, giving him ample opportunity to
prepare his case, (2) that the Secretary was particularly
negligent in the preparation of this case, s~nce the citation about which the inspector was prepared to testify had
not even been issued at the time the hearing was scheduled
and had been issued only shortly before the actual hearing,
(3) that once his error was known, the Secretary showed a
lack of good faith in failing to ·conduct a search for the
inspector's notes (to refresh the inspector's recollection
of the citation at issue) during a continuance granted
specifically for that purpose, (4) that significant expenditures in time and money had been incurred as a result of
the scheduled hearing and that additional such expenditures
would be incurred by any further continuance of the proceedings, (5) that there were no assurances that even after
a further continuance, the Secretary would be any better
prepared to present his case, and (6) that the operator was
prepared for hearing with two staff attorneys and six witnesses present.
The bench decision denying the Secretary's request for
an additional continuance and dismissing the case for lack
of evidence is affirmed at this
Accordingly, Citation
No. 1050294 is VACATED and this
ISMISSED.

Law Judge
Distribution:

By cer· fied
Steel Corporation, 600

Louise Q. Symons, Esq
Grant Street, Pittsbu

David Bush, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104

972
*U.S. GOVERNMENT PRINTING OFFICE:

1982-0-J61-6J8/4J7.l