AUGUST 1988
COMMISSION DECISIONS
08-15-88
08-19-88
08-19-88

Secretary of Labor on.behalf of Joseph Gabossi
v. Western Fuels-Utah, Inc.
El Paso Sand Products, Inc.
Southern Ohio Coal Company

WEST 86-24-D

Pg. 953

CENT 88-53-M
WEVA 86-190-R

Pg. 960
Pg. 963

Pg. 969

ADMINISTRATIVE LAW JUDGE DECISIONS
06-30-88

(misprint in June issue) Western Fuels, Utah

WEST 87-166-R

08-05-88
08-09-88
08-12-88

Blue Circle, Inc.
Gerard Sapunarich v. Lehigh Portland Cement
Secretary of Labor on behalf of Elliott Rowe
and others v. Johnson Coal Co., Inc.
Joseph Stora v. Southern Ohio Coal Company
River Cement Company
Ozark-Mahoning Company
Ken-Mor Stone, Inc.
Gary L. Mccurdy v. Helvetia Coal Company
Arnold Sharp v. Big Elk Creek Coal Co.
Baltazar Madrid v. Kaiser Coal Corporation
Garden Creek Pocahontas Company
Charles H. Sisk v. E.R. Mining.(Trucking), Inc.
Troy W. Conway, Sr. v. Peabody Coal Company
Secretary of Labor on behalf of Michael Price
and Joe John Vacha v. Jim Walter Resources
David Lee Jack v. The Helen Mining Company

Pg. 990
CENT 87-77-M
YORK 88-29-DM Pg. 1019
Pg. 1022
KENT 88-57-D

Rochester & Pittsburgh Coal Company
Boorhem-Fields, Inc.

PENN 88-243-R Pg. 1119
CENT 88-56-M Pg. 1121

08-16-88
08-17-88
08-17-88
08-19-88
08-19-88
08-19.-88
08-19.-88
08-19-88
08-22-88
08-22-88
08-26-88
08-31-88

WEVA 88-96-D
CENT 88-4-M
LAKE 88-4-M
KENT 88-83-M
PENN 88-254-D
KENT 88-109-D
WEST 87-170-D
VA
88-9
KENT 87-212-D
KENT 88-128-D
SE
87-128-D

Pg. 1024
Pg. 1027
Pg. 1035
Pg. 1075
Pg. 1076
Pg. 1077
Pg. 1080
Pg. 1093
Pg. 1101
Pg. 1107
Pg. 1108

PENN 88-138-D

Pg. 1111

ALJ ORDERS
08-26-88
08-29-88

AUGUST 1988
Review was granted in the following cases during the month of August:
'FMC Wyoming Corporation v. Secretary of Labor, MSHA, Docket No. WEST 86-43-RM,
etc. (Judge Cetti, June 28, 1988).
Secretary of Labor, MSHA v. Mid-Continent Resources, Inc., Docket No. WEST 87-88.
(Judge Morris, July 1, 1988).
Secretary of Labor, MSHA v. El Paso Rock Products, Inc., Docket No. CENT 88-53-M.
(Pefault Order of July 11, 1988).
Review was denied in the following cases during the month of August:
Secretary of Labor, MSHA v. H.B. Zachry Company, Docket No. CENT 88-29-M.
(Interlocutory Review of May 23, 1988 Order fasued by Judge Melick).
Western Fuels, Utah, Inc. v. Secretary of Labor, MSHA, Docket No. WEST 87-166-R,
etc. (Judge Lasher, June 30, 1988).

COMMISSION DECISIONS

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

August 15, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
On Behalf of JOSEPH GABOSSI

v.

Docket No. WEST 86-24-D

WESTERN FUELS-UTAH, INC.
Before:

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

BY THE COMMISSION:
In this case Commission Administrative Law Judge John J. Morris
held that Western Fuels-Utah, Inc. ("Western Fuels") did not violate the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seg.
(1982) ("Mine Act"), in discharging complainant Joseph Gabossi.
9 FMSHRC 1481 (August 1987) (ALJ). Gabossi had complained to Western
Fuels and to the State of Colorado, Division of Mines, that the
underground reporting structure at the Deserado Mine created unsafe
working conditions, and that it violated Colorado state law. Judge
Morris concluded that the firing was lawful because Western Fuels was
motivated by Mr. Gabossi's clashes with mine management over the
underground reporting structure in effect at Western Fuels' Deserado
Mine and that his complaints did not fall within the protective umbrella
of the anti-discrimination provisions of section lOS(c)(l) of the Mine
Act, 30 U.S.C. § 81S(c)(l). lf We disagree.

!/

Section lOS(c)(l) provides:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any
miner, representative of miners or applicant for
employment in any coal or other mine subject to this
Act because such miner, representative of miners or
applicant for employment has filed or made a
complaint under or related to this Act, including a
complaint notifying the operator or the operator's
agent, or the representative of the miners at the
coal or other mine of an alleged danger or safety or

953

Because Gabossi's conflict with Western Fuels regarding the
Deserado Mine's underground reporting structure was safety related, a
fact acknowledged by the judge, we conclude that Gabossi engaged in
activity protected by the Mine Act. Accordingly, we reverse the
decision of the judge and remand the matter for further proceedings
consistent with this decision.

I.

Gabossi began working for Western Fuels on October 1, 1982. From
that time until he was discharged on January 30, 1985, he served in a
dual capacity of mine foreman and underground coal production
superintendent at the Deserado Mine located in Rio Blanco County,
Colorado. At the time Gabossi began working for Western Fuels John
Bootle was the mine manager. Gabossi testified that, under Bootle, he
coordinated the underground maintenance activities with the activities
of his production crew. Tr. 16-17, 119. In June of 1983, Raja Upadhyay
replaced Bootle as mine manager.
On June 29, 1983, Upadhyay issued an organizational memorandum
setting forth the responsibilities of the Deserado Mine's four
superintendents. Exh. R-1. Pursuant to that organizational
memorandum, Gabossi was in charge of underground coal production while
Gordon Burnett was in charge of underground maintenance. Although the
record is unclear as to whether Gabossi still coordinated the activities
of the maintenance and production departments following the issuance of
this organizational memorandum, Gabossi testified that from that time
until February of 1984 matters became "progressively worse" between
himself and mine manager Upadhyay. Gabossi stated that on February 14,
1984, Upadhyay informed him that he "wasn't to interfere with
maintenance in any way." Tr. 151-52.

In June of 1984, A.B. Beasley replaced Burnett as the maintenance
superintendent. Beasley and Gabossi described their relationship as
stormy. Tr. 20, 430. In that regard, Beasley had instructed
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.
30 U.S.C. § 815(c)(l).

954

maintenance.foreman Art Cordova to stop reporting his underground
activities to Gabossi. Tr. 271-72. Cordova discussed Beasley's
instructions with Upadhyay and was told by the mine manager to follow
them• Tr. 273. In September or October of 1984, Upadhyay gave Gabossi
his own "breakdown" mechanic for each production shift but preventative
underground maintenance remained under the control of maintenance
superintendent Beasley. Tr. 23.
Gabossi's and Upadhyay's relationship continued to deteriorate.
According to Upadhyay, in September, 1984, he and Gabossi had a heated
discussion concerning disability payments to maintenance foreman
Cordova. Tr. 468-69. Upadhyay testified that Gabossi "got real hot,
upset, and left the office." Tr. 469. Upadhyay further testified that
it was then that he decided to fire Gabossi. Id.
On October 1, 1984, Gabossi told Upadhyay that he no longer wanted
to be in charge of the mine when Upadhyay was away. Tr. 493. Also,
during the first week of October 1984, Upadhyay traveled to Washington,
D.C. to meet with his supervisor Lloyd Ernst. Upadhyay delivered to
Ernst a handwritten memorandum requesting Ernst's permission to fire
Gabossi. Tr. 469-70. Although Upadhyay stated in the memorandum that
Gabossi is a "good miner, [who) takes his work very seriously and gets
100% work out of his employees", Upadhyay also stated that Gabossi
"can't work with others," that Gabossi is "very intimidating and tries
to get his way in everything," that he "creates problem[s) with the
union employees," and that his loyalty to Western Fuels is "nil or
negative." Exh. R-5. Upadhyay testified that although he recommended
that Gabossi be fired, Ernst chose Upadhyay's alternative suggestion
that Gabossi be assigned more hours underground in the hope that he
would become frustrated with his job and quit. This plan was set in
motion upon Upadhyay's return to the Deserado Mine. Tr. 471, Exh. R-5.

On November 6, 1984, Gabossi telephoned Boyd Emmons, District Coal
Mine Inspector for the State of Colorado, Division of Mines. Tr. 27.
Both Gabossi and Inspector Emmons testified that during their November 6
conversation, Gabossi expressed his concern about mine safety as a
result of the underground reporting structure at the Deserado Mine.
Gabossi also told Emmons that he was concerned about losing his state
foreman certification should an accident occur underground because of
the reporting system~ Emmons' response was that as mine foreman Gabossi
was responsible under section 34-24-101 of the Colorado Revised Statutes
for all underground operations. Tr. 92. ~/ Although Gabossi did not

11

Section 34-24-101(2) of the Colorado Revised Statutes provides:
The mine foreman shall have full charge of all
inside workings and of all persons employed therein,
in order that all the provisions of articles 20 to
30 of this title, insofar as they relate to his
duties, shall be complied with, and so that the
regulations prescribed for each class of workmen
under his charge shall be carried out in the

955

file a written safety complaint with the state Division of Mines, he did
ask Inspector Emmons to send him a letter setting forth his
responsibilities as mine foreman under Colorado state law. Tr. 27-29,
92-96.
The November 9th Incident
On Friday, November 9, 1984, Gabossi showed mine manager Upadhyay
the letter that he had received from Inspector Emmons relating to his
mine foreman duties under state law. Gabossi testified that he
presented the letter to Upadhyay after Upadhyay had given him the
additional responsibility of supervising an underground computer
technician, as well as placing him in charge of surface belts running
from the mine to the silos. Tr. 30. Gabossi stated that as soon as
Upadhyay read Emmons' letter, Upadhyay "instantly got mad and told me
that i f I didn't like it, to quit •••• " Gabossi added that it was "quite
a heated discussion." Tr. 31.
Upadhyay agreed with Gabossi that the November 9 incident was a
"big blowup" but testified that he was not presented with Inspector
Emmons' letter until after Gabossi had asked whether Western Fuels
intended to keep its promise to buy his house were he to leave the
company, and after Gabossi had called him the "worst mine manager" for
whom he had ever worked and had told him that he belonged in a "caste
system." Upadhyay added that, in any event, the letter from the
Colorado Division of Mines merely recited the relevant Colorado state
law that he and Gabossi had previously discussed. Tr. 472-74.
Gabossi 1 s Probation and Discharge
Upadhyay testified that on Sunday, November 11, 1984, he called
his supervisor, Lloyd Ernst, and again asked Ernst's permission to fire
Gabossi. Ernst suggested that Gabossi be placed on probation. The next
day, Upadhyay orally informed Gabossi that he was being placed on
probation indefinitely. The primary reason given by Upadhyay for this
action was Gabossi's inability to get along with other members of the
management team. Tr. 475-76. While Gabossi admitted that Upadhyay told
him that he was being placed on probation for not getting along with
other senior staff members, Gabossi also stated that Upadhyay was
"madder than hell" that he had contacted the Colorado Division of Mines.
Tr. 32, 34. Gabossi received his letter of probation on November 16,
1984. The letter read, in pertinent part:
Your willingness to work harmoniously under the
organization structure put into effect by Western
Fuels has been negative. You have repeatedly
objected to the idea of Maintenance Superintendent
being responsible for underground maintenance.
You have demonstrated your inability to work
strictest manner possible.
Exh. C-1.

956

harmoniously with other division heads and employees
at the Deserado Mine.
Exh. C-3.
Gabossi testified that from November 12 to January 21, 1985,
Upadhyay was "very cool, but civil" to him. Tr. 42. On January 21
(just 9 days before he was fired) Gabossi reported to Upadhyay that one
of maintenance superintendent Beasley's crew was falsifying
permissibility inspection logs. Id. Gabossi further testified that he
had little conununication with Upadhyay from January 21 to January 30,
1985, when he was discharged. Tr. 42-43.
Upadhyay testified that he had decided once again to seek
permission from upper management to fire Gabossi after being informed on
January 29, 1985, by maintenance superintendent Beasley that Beasley was
leaving Western Fuels in part because of his inability to work with
Gabossi. Tr. 485. Upadhyay additionally testified that inasmuch as he
had lost maintenance superintendent Burnett and was about to lose
Beasley because of Gabossi 1 s poor attitude, he decided to seek Gabossi's
termination to prevent his also losing the next maintenance
superintendent. Tr. 486. Upadhyay then contacted senior management in
Washington, D.C. and received permission from Ken Holum, the company's
General Manager, to fire Gabossi. Id.
Gabossi and Upadhyay had another "heated argument" when Gabossi
was given his termination notice on January 30, 1985. The termination
notice reads in part:
Western Fuels-Utah, Inc. at the Deserado Mine needs
to have employees who can act together as a team,
especially now in view of our small workforce. Your
efforts have not been directed towards that end.
For this reason, your employment shall be terminated
at Western Fuels-Utah, Inc. effective inunediately.
Exh. C-2.

II.

Following Gabossi 1 s discharged, the Secretary filed a
discrimination complaint on his behalf with this independent Commission.
The administrative law judge held in favor of Western Fuels and
dismissed Gabossi 1 s complaint. We granted the Secretary's petition for
discretionary review of the judge's decision.
The judge below concluded that Gabossi had complained to Western
Fuels management about the underground reporting structure because of
his concerns over safety. 9 FMSHRC at 1504. The judge also concluded
that Gabossi "was fired because of his continuing and extensive conflict
with mine management over the company's failure to coordinate

957

underground mining activities." Id. Nevertheless, despite
acknowledging that Gabossi's complaints concerning the company's
underground reporting structure were "safety related," the judge held
that those complaints were not protected under the Mine Act. 9 FMSHRC
at 1505. The judge states that, "In short, [Gabossi's] unprotected
activity, insofar as the federal Act is concerned, was his continual
clash with management over the reporting structure." Id. The judge
found that Gabossi's complaints were unprotected because neither the
Mine Act nor the Department of Labor's Mine Safety and Health
Administration's regulations contain a provision on a mine foreman's
duties corresponding to section 32-24-101(2) of the Colorado Revised
Statutes. 9 FMSHRC at 1505. See n. 2, supra. 11
We hold that the judge erred in concluding that Gabossi's
complaints to mine management regarding the Deserado Mine's underground
reporting structure did not constitute activity protected under the Mine
Act. In that regard, we note that the record amply supports the judge's
determination that Gabossi's complaints to Western Fuels about the
underground reporting structure were safety related. Gabossi testified
that he had complained to Upadhyay about 10 to 15 times concerning the
underground coordination problems between the production and the
maintenance departments, but was told that maintenance was "none of his
business." Tr. 22, 25-26, 143, 182. Gabossi was particularly concerned
about ventilation changes made by the maintenance department which he
believed could jeopardize the safety of the production crew. Tr. 21-22,
179-80.
Section 105(c)(l) of the Mine Act specifically prohibits
discrimination against a miner who has "made a complaint under or
related to this Act, including a complaint notifying the operator ••• of
an alleged danger or safety and health violation." 30 U.S.C.
§ 815(c)(l) (emphasis added).
The fact that Gabossi's safety concerns
may have been related to the Colorado statute does not make his
objections regarding the Deserado Mine's underground reporting structure
any less a safety complaint under the Mine Act.
In light of our finding that Gabossi's complaints to mine
management were protected under the Mine Act and in light of the judge's
conclusion that Gabossi was fired because of his "continuing and
extensive conflict with mine management over the company's failure to
coordinate underground mining activities," the Secretary may have
established a case of unlawful discrimination. Secretary on behalf of
David Fasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(October 1980), rev'd on other grounds sub~ Consolidation Coal Co.
v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of
Thomas Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April
1981). It remains to be determined whether, on the basis of this
record, Western Fuels successfully rebutted the Secretary's case or

11

The judge, however, did find that Gabossi's contacting the
Colorado Division of Mines and his presentation of State Inspector
Emmons' letter to mine manager Upadhyay constituted activity protected
under the Mine Act. 9 FMSHRC at 1505.

958

affirmatively defended against it. Pasula, supra; Robinette, supra.
See also, Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th
Cir. 1987); Donovan v. Stafford Construction Co.~ 732 F.2d 954, 958-59
(D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983).
Accordingly, we remand this case for the judge to make additional
findings of fact and to analyze those findings in accordance with
applicable case law. Furthermore, to the extent appropriate for the
disposition of this case, on remand the judge should consider the
November 9, 1985 incident involving Gabossi and mine manager Upadhyay,
Gabossi being plc.ced on probation subsequently, and the events
surrounding the discharge of Gabossi on January 30, 1985.
For the reasons set forth above, the judge's decision is reversed,
the complaint of discrimination is reinstated, and the case is remanded
for further proceedings consistent with this decision.

Richard V.

5oyce A. Doyle, Cormnissi6ner

959

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

August 19, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 88-53-M

v.
EL PASO SAND PRODUCTS, INC.

BEFORE:

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

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). On July 11,
1988, Chief Administrative Law Judge Paul Merlin issued an Order of
Default finding respondent El Paso Sand Products, Inc. ("El Paso"), in
default for failure to answer the Secretary of Labor's civil penalty
complaint and the judge's subsequent order to show cause and assessing a
civil penalty of $345 proposed by the Secretary. By letter dated July
19, 1988, addressed to Judge Merlin, El Paso asserted that it had
previously responded in writing to the Secretary's civil penalty
complaint and, apparently, the show cause order as well. Copies of
these responses, attached to the July 19 letter, reflect that they were
sent to the Secretary of Labor's Dallas, Texas, Solicitor's Office
rather than to this independent Conunission. We deem El Paso's July 19
letter to constitute a timely petition for discretionary review of the
judge's default order. See,~· Mohave Concrete & Materials, Inc., 8
FMSHRC 1646 (November 1986). We grant the petition and summarily remand
this matter to the Judge for further proceedings.
It appears from the record that El Paso, acting pro se, attempted
to file timely written responses to the Secretary's civil penalty
complaint and the judge's show cause order. Although these documents
were apparently sent to the Secretary's Solicitor's Office and were not
filed with the Conunission, as required, El Paso may have been
attempting, in good faith, to comply with its filing responsibilities
a factor that may justify relief from default. See, ~· Upright
Mining, Inc., 9 FMSHRC 206, 207 (February 1987). Under these
circumstances, we conclude that El Paso should be afforded the
opportunity to explain its filing attempts to the judge, who shall
determine whether relief from default is appropriate. Cf. Kelley
Trucking Co., 8 FMSHRC 1867, 1869 (December 1986).

960

For the foregoing reason~, the judge's default order is vacated
and this matter is remanded for proceedings consistent with this order.
El Paso's attention is directed to the requirements that all further
pleadings and papers in this proceeding must be filed with the Commission and copies of all such documents served on the Secretary of Labor.
29 C.F.R. §§ 2700.S(b) & .7. lf

~

~L£;t/AJ_vf.-v
Richard V. Backley, Commissioner

~tl~
oyc~e, CommiSSiOr

Lasto~ Commissioner

~1&_~
L. Clair Nelson, Commissioner

lf

Commission Procedural Rule S(b} states:
Where to file. Until a Judge has been assigned to a
case, all documents shall be filed with the
Commission. After a Judge has been assigned, and
before he issues a decision, documents shall be
filed with the Judge, except for documents filed in
connection with interlocutory review, which shall be
filed with the Commission. After the Judge has
issued his decision, documents shall be filed with
the Commission. Documents filed with the Commission
shall be addressed to the Executive Director and
mailed or delivered to the Docket Office, Federal
Mine Safety and Health Review Commission, 1730 K
Street, N.W., Sixth Floor, Washington, D.C. 20006.

29 C.F.R. § 2700.S(b).

961"

Distribution
Roger Miller, Safety Director
El Paso Sand Products, Inc.
P.O. Box 9008
El Paso, Texas 79982
E. Jeffery Story, Esq.
Office of the Solicitor
U.S. Department of Labor
525 Griffin Street
Suite 501
Dallas, Texas 75202
Chief Administrative Law Judge Paul Merlin
Federal Hine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Hashington, D.C. 20006

962

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

August 19, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos. WEVA 86-190-R
WEVA 86-194-R

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

v.

SOUTHERN OHIO COAL COMPANY

BEFORE:

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

BY THE COMMISSION:
At issue in this consolidated contest and civil penalty proceeding
arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seg. (1982) ("Mine Act" or "Act"), is the validity of a notice
to provide safeguard issued to Southern Ohio Coal Company ("Socco")
pursuant to 30 C.F.R. § 75.1403. ll Commission Administrative Law Judge

ll

30 C.F.R. § 75.1403 repeats section 314(b) of the Mine Act, 30
U.S.C. § 874(b), and states:
Other safeguards adequate, in the judgment of an
authorized representative of the Secretary [of
Labor], to minimize hazards with respect to
transportation of men and materials shall be
provided.
The procedures for issuing safeguards and citations for failure to
maintain required safeguards are described in 30 C.F.R. § 75.1403-l(b):
The authorized representative of the Secretary
shall in writing advise the operator of a specific

963

Roy J. Maur_er concluded that because the safeguard in question contained
a requirement that was "of a general nature applicable to at least a
significant number of other [underground] coal mines," rather than a
requirement specifically applicable to Sacco's mine, it was invalid.
9 FMSHRC 273, 278 (February 1987) (ALJ). Accordingly, he vacated a
withdrawal order issued to Socco that alleged a violation of the
safeguard. On review, the parties dispute whether the general
applicability of a safeguard requirement is a proper basis for
invalidating a notice to provide safeguards. We do not reach this
question of law because, in any event, substantial evidence of record
does not support the judge's conclusion that the challenged safeguard
was a generally applicable requirement rather than a mine-specific
requirement. On this basis, we reverse.

On November 3, 1982, during an inspection of Socco's Martinka
No. 1 underground coal mine, an inspector of the Department of Labor's
Federal Mine Safety and Health Administration ("MSHA") issued to Socco a
notice to provide safeguard which stated:
24 inches of clearance is not being provided on
both sides of the feeder for the north main (122)
section coal conveyor belt, in that only 15 inches
is provided along one side.
24 inches of clearance shall be provided on both
sides of the coal feeders in this mine.
Gov. Ex. 2. '];/

On February 19, 1986, another MSHA inspector issued to Socco a
withdrawal order pursuant to section 104(d)(2) of the Mine Act, 30
U.S.C. § 814(d)(2), alleging a violation of the above safeguard and,
hence, of section 75.1403. The withdrawal order stated:
safeguard which is required pursuant to § 75.1403
and shall fix a time in which the operator shall
provide and thereafter maintain such safeguard. If
the safeguard is not provided within the time fixed
and if it is not maintained thereafter, a [citation]
shall be issued to the operator pursuant to section
10[5] of the Act.
30 C.F.R. § 75.1403-l(a) states that safeguards will be required
"on a mine-by-mine basis." 30 C.F.R. §§ 75.1403-2 through 75.1403-11
set forth specific "criteria" by which authorized representatives of the
Secretary are to be guided in requiring safeguards. Section
75.1403-l(a) further states that "[o]ther safeguards may be required."
See generally Southern Ohio Coal Co., 7 FMSHRC 509 (April 1985).
'1:_/
A "feeder" is part of a coal-carrying conveyor system and is
described as a "structure for delivering coal .•• at a controllable
rate." Bureau of Mines, U.S. Department of the Interior, Dictionary of
Mining, Mineral, and Related Terms 417 (1968).

964

In the 2 east C section, there was less than 24
inch clearance between the left coal line rib and
the Stamler belt coal feeder for approximately 6 to
7 feet, only 12 inch clearance was between the
Stamler and ribline and the start and stop switch
was installed for the belt conveyor in this area.
Coal & slate was being dump[ed] on the right side of
the Stamler instead of the front and the fire
warning box was installed outby the Stamler Feeder.
Mechanics, electricians and belt cleaners use this
area. • •• Safeguard No. 2034480 - issued 11-03-82.
Gov. Ex. 1. The withdrawal order included findings that the violation
of the safeguard notice and section 75.1403 was the result of Sacco's
unwarrantable failure to comply therewith (Tr. 21), and that the
violation significantly and substantially contributed to the cause and
effect of a mine safety hazard. Gov. Ex. 1; 30 U.S.C. § 814(d). Socco
contested the order of withdrawal and the Secretary's proposed civil
penalty for the alleged violation of section 75.1403, asserting that the
alleged violation did not occur. Socco also challenged the inspector's
significant and substantial and unwarrantable failure findings.
Before the administrative law judge, the Secretary's witnesses
testified without contradiction that only a 12-inch clearance existed
between the coal feeder and the left ribline at the time the inspector
cited Socco for violating the requirement of the notice to provide
safeguard that a 24-inch clearance be maintained. The testimony at the
hearing focused upon the reasons for the lack of clearance and the
Secretary's allegations that the violation of the safeguard
significantly and substantially contributed to a mine safety hazard and
resulted from Sacco's unwarrantable failure to comply with the
safeguard's requirement. No evidence was introduced addressing the
circumstances under which the underlying 1982 notice to provide
safeguard had been issued or the specific reasons why the requirement of
the safeguard had been imposed at the Martinka No. 1 mine. _In its posthearing brief, however, Sacco argued, among other things, that a notice
to provide safeguards cannot properly address hazards that are of a more
universal nature generally present in the underground coal mining
industry rather than being mine specific.
The judge agreed. Pointing analogously to the principles
enunciated in Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 407 (D.C. Cir.
1976), the judge stated that the Secretary's imposition of generally
applicable safeguard requirements could amount to improper circumvention
of the statutory rulemaking process. 9 FMSHRC at 277-78. The judge
further stated:
Reading the record as a whole •.• a clear inference
may be drawn that the requirements of the
safeguard •.. [for 24 inches of clearance on both
sides of the mine's coal feeders] are applicable to
at least a significant number of coal mines which
employ coal feeders and shuttle cars to transport
coal. Importantly, there is !!£ reason given in

965

th[e) record why the 24 inch clearance requirement
should be imposed only in. the particular mine herein
involved and not in mines using coal feeders
generally.
9 FMSHRC at 277 (emphasis in original). The judge concluded that the
requirement of the safeguard properly should have been promulgated
pursuant to the rulemaking procedures of section 101 of the Mine Act, 30
U.S.C. § 811, rather than imposed on Socco pursuant to a safeguard
notice. Id. Therefore, he held that the notice to provide safeguard
was invalid and he vacated the contested withdrawal order based thereon.
We granted the Secretary's petition for discretionary review.
On review the Secretary asserts that the judge erred in
invalidating the safeguard on the basis of his inference that the
safeguard's requirement of 24 inches of clearance between the rib and
the feeder is of a general nature applicable to a significant number of
underground coal mines utilizing coal feeders. The Secretary also
argues that the Mine Act does not mandate that a safeguard be minespecif ic. According to the Secretary, it is enough if the
transportation hazard addressed by the safeguard is not addressed by a
generally applicable mandatory standard. Sec. Reply Br. at 5-6.
Alternatively, the Secretary asserts that substantial evidence does not
support the judge's conclusion that the requirement of the safeguard at
issue was applicable to at least a significant number of mines using
coal feeders.

Sacco responds that the judge correctly held the safeguard to be
invalid. Socco asserts that the intent of the statutory safeguard
provision is to allow the Secretary to require an operator to address
certain transportation hazards caused by peculiar conditions at a mine,
not to address conditions common to a significant number of mines.
Socco argues that the judge properly recognized that the requirement
imposed by the safeguard at issue is generally applicable to a
significant number of underground coal mines and therefore that its
clearance requirement should have been promulgated through the Mine
Act's rulemaking procedures.
The Commission has previously had occasion to examine the Act's
safeguard provision. The Commission has noted that the broad language
of the provision "manifests a legislative purpose to guard against all
hazards attendant upon haulage and transportation in coal mining." Jim
Walter Resources, Inc., 7 FMSHRC 493, 496 (April 1985). The Commission
has observed that while other mandatory safety and health standards are
adopted through the notice and comment rulemaking procedures set forth
in section 101 of the Act, section 314(b) extends to the Secretary an
unusually broad grant of regulatory power -- authority to create what
are, in effect, mandatory safety standards on a mine-by-mine basis
without regard to the normal statutory rulemaking procedures. Southern
Ohio Coal Co., supra, 7 FMSHRC at 512. The Commission also has
recognized that the exercise of this unique authority must be bounded by
a rule of interpretation more restrained than that accorded promulgated
standards. Therefore, the Commission has held that a narrow
construction of the terms of a safeguard and its intended reach is

966

required and that a safeguard notice must identify with specificity the
nature of the hazard at which it is directed and the remedial conduct
required by the operator to remedy such hazard. Id.
These underlying interpretive principles strike an appropriate
balance between the Secretary's authority to require safeguards and the
operator's right to notice of the conduct required of him. They do not,
however, resolve the important issue raised here for the first time -whether a notice to provide safeguard can properly be issued to address
a transportation hazard of a general rather than mine-specific nature.
The United States Court of Appeals tor the District of Columbia Circuit,
in the context of the Mine Act's provision for mine-specific ventilation
plans, has recognized that proof that ventilation requirements are
generally applicable, rather than mine-specific, may provide the basis
for a defense with respect to alleged violations of mandatory
ventilation plans. In Zeigler Coal Co., supra, the court considered the
relationship of a mine's ventilation plan required under section 303(0)
of the Act, 30 U.S.C. § 863(0), to mandatory health and safety standards
promulgated by the Secretary. The court explained that the provisions
of such a plan cannot "be used to impose general requirements of a
variety well-suited to all or nearly all coal mines" but that as long as
the provisions "are limited to conditions and requirements made
necessary by peculiar circumstances of individual mines, they will not
infringe on subject matter which could have been readily dealt with in
mandatory standards of universal application." 536 F.2d at 407; See
also Carbon County Coal Co., 6 FMSHRC 1123, 1127 (May 1984) (Carb~
County I); Carbon County Coal Co., 7 FMSHRC 1367, 1370-72 (September
1985) (Carbon County II).
Whether, as the judge believed, a similar type of challenge may be
made to a safeguard notice is a question of significant import under the
Mine Act. Given the manner in which this important question was raised
and addressed in the present case, and the nature of the evidence in
this record, it is a question that we do not resolve at this time.
In the present case Sacco did not assert its right to challenge
the validity of the safeguard notice based on the safeguard's asserted
general applicability until the submission of its post-hearing brief to
the judge. Thus, at the hearing Sacco did not offer any evidence in
support of this contention. Thus, even if we were to hold that an
operator may challenge a notice of safeguard on the ground that it seeks
to impose a requirement of a general nature applicable to all or a
significant number of mines, the record at hand contains no evidence
that this is the case here. Rather, the testimony of the witnesses
focused on the cause of the February 19, 1986, violation of the notice
to provide safeguard, whether the violation was significant and
substantial, and whether the violation resulted from Socco 1 s
unwarrantable failure to comply with the safeguard.
The record contains no evidence concerning the quite distinct
issue of the general or mine-specific nature of the safeguard
requirement. No testimony was offered and no documents were introduced
regarding the circwnstances under which the underlying safeguard was
issued, the existence of or need for similar safeguards at other mines,

967

or any general MSHA policy regarding uniform clearance requirements
around coal feeders. We note particularly that Socco failed to
introduce any evidence as to whether the same or a similar safeguard had
been issued at any of its other mines. Compare Carbon County II,
7 FMSHRC at 1372-75. There is no factual basis in this record
supporting the judge's inference that the clearance requirement of the
challenged safeguard is applicable to at least a significant number of
other mines employing coal feeders and shuttle cars to transport coal.
In failing to introduce any evidence supporting its contention, Socco
failed to support its challenge to the safeguard.
Therefore, substantial evidence of record does not support the
judge's conclusion that the notice to provide safeguard was issued
improperly. The judge's vacation of the contested order of withdrawal
is reversed. This matter is remanded to the judge for consideration of
Sacco's contest of the Secretary's findings that the violation was
significant and substantial and resulted from the operator's
unwarrantable failure to comply with the notice of safeguard and for the
assessment of an appropriate civil penalty.

K,~?
~~u4-,_
Richard V. Backley, Commissioner

. /.; (K./~ t/ a~,Lt·Joyce

Doyle, Commissirn<er

L. Clair Nelson, Commissioner

968

ADMINISTRATIVE LAW JUDGE DECISIONS

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

JUN 301988
WESTERN FUELS-UTAH, INC.,
Cont.estant

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

.
.

CONTEST PROCEEDINGS

.
.

Docket No. WEST 87-167-R
Citation No. 2835326; 3/22/87

.
.
:

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

v.
WESTERN FUELS-UTAH, INC.,
Respondent

.
.
.
.
.

Docket No. WEST 87-166-R
Order No. 2835325; 3/21/87

Docket No. WEST 87-168-R
Citation No. 2835327; 3/22/87
Docket No. WEST 87-169-R
Citation No. 2835328; 3/22/87
Mine I.D. 05-03505
CIVIL PENALTY PROCEEDING
Docket No. WEST 87-251
A.C. No. 05-03505-03540
Deserado Mine

:

DECISION
Appearances:

Karl F. Anuta, Esq., Boulder, Colorado,
for Contestant/Respondent;
Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Respondent/Petitioner.

Before:

Judge Lasher

The penalty case was consolidated with the four contest
proceedings at hearing---which as reflected in the caption
involve a Section 103Ck) withdrawal order and 3 citations. The 5
dockets arise under and the Commission has jurisdiction pursuant
to the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
Section 801 et~ (1982) (herein the Act).
The four enforcement papers Corder and 3 citations) were
issued by MSHA Inspector Dale L. Hollopeter subsequent to the
occurrence of a serious accident which occurred at approximately
9:25 a.m., on March 20, 1987, near the Deserado mine, an underground coal mine operated by Contestant/Respondent (herein
Western Fuels) in Rio Blanco County, Colorado.

969

One of the citations (No. 2835327) charged that the alleged
violation described therein was "significant and substantial".
The other 2 Citations (numbered 2835326 and 2835328) did not
contain "S&S" designations.
A. General Findings
The Deserado Mine is an underground coal mine located near
Rangely, Rio Blanco county, Colorado. Coal is taken from the
mine to a preparation plant from which it is transported for
several miles to a train loadout area by an overhead conveyor CT.
27, 55, 153) .
The parties, in addition to stipulations as to jurisdiction,
admissibility of underlying documentation and mandatory penalty
assessment criteria, also submitted the following written
stipulations:
a. On Friday, March 20, 1987, at about 9:25 a.m., a nonfatal powered haulage accident occurred on the County Road
78 at the Beltline Conveyor Overpass CCNV-2). Dale J.
Ackerman, truck/light equipment operator, and Michael G.
Smith, heavy equipment operator, were seriously ·injured
when the Euclid, RD-50, end dump haulage truck, with the
bed raised, struck the overpass, causing the truck to overturn onto its left cab side. The accident occurred because
the haul truck operator failed to lower the truck bed after
dumping refuse material at Pit 2/3 ~/
b. The accident was reported by the (mine) operator to the
MSHA office in Glenwood Springs at approximately 12:00
noon on March 20, 1987.
c. The No. 2 Beltline conveyor overpass is above County
Road No. 78 and is used as a haul road by Western Fuels
with express permission of Rio Blanco County and Bureau of
Land Management.
d. The No. 2 Beltline Conveyor overpass was not at the time
of the accident marked and did not contain warning signals.

1/

The evidence of record also overwhelmingly established that
the driver of the truck, Ackerman, for whatever reason, failed to
lower the truck bed and then drove the truck approximately 2
miles from the pit to where the bed struck the overpass as the
truck attempted to proceed underneath.

970

Inspector Hollopeter, who is stationed in Denver, was
advised of the accident by his supervisor sometime after
"noontime" on Friday, March 20, 1987. After packing, he drove
from Denver to Craig, Colorado that afternoon. That night he
prepared his equipment, etc. for the ensuing investigation, and
the following morning traveled from Craig to the mine where he
met with company and union officials at approximately 8 a.m. (T.
28-32). He was advised by Mine Superintendent John Trygstad that
the haulage truck-with the bed thereof in the raised position-had struck the overland conveyor structure.
At the conclusion of
the meeting, Inspector Hollopeter issued the Section 103(k)
Order-- based on what he was told at the meeting-- to insure the
safety of the miners (T. 33-38, 55). Following the meeting,
Inspector Hollopeter, accompanied by Western Fuels' Safety
Director Jerry Kowlok, went to the accident scene, and then to
Pit 2-3, i.e. the refuse pile (T. 40, 59).
It was Inspector Hollopeter's understanding, and I so find
from the entire record, that Dale Ackerman, the driver of the
50-ton capacity truck on the trip in question, his second of the
day (T. 132), started out from the preparation plant on March 20
with a load of refuse, proceeded down the 2-lane haul road
(County Road 78) to the refuse pile (pit) where he dumped the
refuse material, picked up passenger Smith, and was traveling
back down the gravel-dirt haul road to the preparation plant when
the accident occurred as above noted about 9:25 a.m. at a point
about 1.75 miles from the pit (T. 41, 44-48, 132, 256-257). The
speed limit on the haul road from the refuse pit (dump) is 30
m.p.h. (T. 256).
The accident occurred when the right side of the front of
the "headache rack" (a protective part of the bed extending out
over the cab to keep falling objects from striking the cab and
the truck operator) struck the overpass structure CT. 60-61, 71,
362; Exs. M-11, 12 and 13).
The truck ended up on its left side following the accident;
Michael G. Smith, an "authorized" passenger (T. 243, 260, 294,
295) was removed from the truck at 10:40 a.m. and Ackerman, whose
lower left leg had to be amputated at the scene, was removed from
the truck at 12 noon CT. 52-53, 116; Ex. M-14).
After his arrival at the accident scene (and the refuse
pit>, Inspector Hollopeter took various measurements and
photographs of the truck, overpass structure, and accident scene
(Ex. M-6 through M-13) (T. 41, 50-58).
The overpass structure (sometimes referred to as an overhead
conveyor) extends over the haul road in an arch, the lowest point
of which is 20.16 feet and highest point being 27 feet; there was
a clearance of approximately 26 feet at the point where the truck
struck it (T. 65, 68, 138, 141). The conveyor is in the center
971

of the structure itself with walkways on either side. One effect
of the withdrawal order was to prohibit persons from walking on
these walkways CT. 78). When the bed of the truck is raised it
extends upward at a 60 degree angle and is about 28 feet 4 inches
in height. The truck thus failed to clear the overpass by about
18-24 inches CT. 69 ). With the bed raised, there was thus no
place the truck could have cleared the overpass CT. 70).
In its
travel position, i.e., with the bed lowered, the height of the
truck is 14 feet 5 inches CT. 72).
B. Docket No. WEST 87-166-R
Validity of Withdrawal Order No. 2835325
The Order was issued pursuant to Section 103Ck) of the Act
which provides:
"In the event of any accident occurring in a coal or other
mine, an authorized representative of the Secretary, when
present, may issue such orders as he deems appropriate to
insure the safety of any person in the coal or other mine,
and the operator of such mine shall obtain the approval of
such representative, in consultation with appropriate State
representatives, when feasible, of any plan to recover any
person in such mine or to recover the coal or other mine or
return affected areas of such mine to normal."
Subsequent to its issuance at 8:50 a.m. on March 21, 1987,
the Order was modified four times by Inspector Hollopeter.
Western Fuels contends that the Order as modified, was
improperly issued since its purpose was not to insure the safety
of persons in the mine, but rather was intended to preserve
evidence CT. 202). The Order itself charges no violation and
MSHA seeks no penalty in connection therewith CT. 9).
The "Condition or Practice" involved in the Withdrawal Order
was set forth by Inspector Hollopeter in Section 8 thereof as
follows:
The mine has experienced a nonfatal powered haulage
accident on the surface haul road (County Rd. 78) at No. 2
Beltline Conveyor overpass. This order is issued to assure
the safety of persons until an examination or investigation
is made to determine the area is safe. An investigation
party of company officials, state and county officials,
safety committeemen are permitted to enter the area.
Section 15 of the Withdrawal Order, wherein the "Area or
Equipment" to be withdrawn is to be described, was filled in by
Inspector Hollopeter as follows:

972

"The No •. 2 Beltline Conveyor overpass structure 150 feet each
side of the haul road and the haul road 150 feet easterly
and westerly of the structure, except the southern portion
of the haul road to permit traffic to pass."
Inspector Hollopeter issued the Order to ensure the safety
of persons until an investigation could be conducted CT. 34-36,
142).
At 1:40 p.m. on March 21, 1987, the Inspector issued the
following modification:
103(k) Order is modified to allow the operator to move the
Euclid R-50 (Company No. 4) from the accident area to the
shop area. Also, the closure of a section of this haul
road is now removed from this order.
At 7:35 p.m. on March 21, 1987, this second modification~/
was issued:
The 103(k) Order is modified to show the area of the No. 2
Beltline Conveyor (overland conveyor) closure from the 150
feet on each of the haul road changed to just the No. 2
Beltline Conveyor Overpass structure and belt at the main
supports north of the haul road to the main supports south
of the haul road.
At 11:39 a.m. on March 22, 1987, this third and final
modification was issued by Inspector Hollopeter:
The 103(k) Order is modified to allow repairs to the No. 2
beltline conveyor overpass and operation of the conveyor
belt this being based on the Chief Engineer opinion which
was given and to allow repairs on the Euclid R-50 (Company
No. 4) haulage truck, with stipulation that the District
Office, MSHA, CMSH&H, Denver, Co., be notified of any defective item found and that we get a report of the damage
and repairs done to the truck.
If an independent shop is to do the repairs, we are to be
notified so that we might be present during examination
or testing.
One effect of the Withdrawal Order, as previously noted was
to prohibit persons from walking on the walkways alongside the
conveyor. The operation of the conveyor was also "closed" by the

2/

Upon the issuance of this second modification, the coverage

of the Order would have remained on the "curved arched portion of
the overpass structure", the truck, and the conveyor belt (T.
153).

973

order CT. 85, 86). The order did not prevent traffic on the
haulage road ·ccounty Road 78) from travelingunder the overpass
structure, and thus would not have the effect of preventing the
same kind of accident from happening had another Euclid truck
proceeded under the overpass with its bed raised CT. 80-85).
This is a moot point, however, since there was only one such
truck operating at the time-- the one involved in the subject
accident CT. 87). The Inspector testified he also put an order
on the truck to "prevent people from being in or around" it {T.
87-88) although this is not specifically reflected in Section 15
(Area or Equipment> of the order itself.
At the time of his initial investigation, Inspector
Hollopeter did not know the truck was being driven-- why/or what
caused the truck to be driven-- with the bed in a raised position
CT. 73, 77). He considered the possibility that there was a malfunction which would have caused the bed to be in a raised
position CT. 77, 151).
Inspector Hollopeter issued the first modification of the
Withdrawal Order because the County wanted the truck moved and so
that the truck could be moved off the road to the shop area
allowing traffic to move in both directions CT. 151). At the
time of its issuance he had not checked out and cleared the
overpass structure for safety CT. 74-76, 142, 189). He described
his concerns relating to the overpass as follows:
"Just underneath, looking at the conveyor, I saw where -the side which the truck had contacted, initially, and -at the initial contact point, I saw, on the lattice work,
where there was (sic) braces broken out, bent out. And,
also, the I-beams were bent, twisted underneath it."
CT. 77)
The Inspector was also concerned about the cracking of paint
around the bolts of the overpass which may have been caused by
the accident CT. 147-149
). ~/
Following issuance of the first modification which permitted
removal of the damaged truck from the accident area, the Inspector again .examined the conveyor structure. He testified as
to what he observed:
"On the easterly side of the structure, which was the side,
which the haulage truck had initially contacted, I saw

3/ Although not well articulated by the witness, I infer that
this concern was directed toward the possible traumatic effect the
impact of the collision had on the structure.

974

the lattice work bent, braces broken out completely on one
end, and bent out. The metal, which was bent.
For a distance along the bottom of the conveyor, I observed
some of the I-beams going across underneath this structure,
bent. Also, I notice on the opposite side of the impact
area, paint which appeared to be cracked, which was apparently caused by the impact.

Q.

But, it was on the opposite side of the conveyor?

A.

Yes."

CT. 89)

Surface Area Foreman Jack L. Monfrada described what he saw
when he arrived as follows:
"There was some beams and lattice work that was -- one
lattice work was broke and pokin' up on the air, and you
could see where these beams had been bent. They were
horizontal beams, across the bottom of the structure.
(T. 342)

After this visual examination and conducting interviews CT.
89-91) Inspector Hollopeter issued the ~econd modification at 7:35
p.m. on March 21, 1987. He explained what led to issuance of the
second modification:
"Mainly, my understanding was that the company were (sic)
havin' security people stay at that area to prevent people
from goin' in the accident area -- or, under the 103K Order
area. And, they'd have to keep people -- they said they
was going to keep people there all the time. And, at that
particular time, I didn't feet the Order should be lifted,
because I had concern on the structure, but I felt the Order
cold be modified to bring the distances in from 150 feet
just to -- just so the Order would pertain to the overland
conveyor structure, that went across the road. And, that
-- that way you wouldn't need to have a -- anyone secure
the area, or -- as far as havin' a person there all the
time."
CT. 90-91)

xxx

xxx

xxx

xxx

I was concerned about the amount of metal, which was damaged
-- your braces, your I-beams, which were bent; the cracking
of the paint, walkway, everything.
I was concerned about if the conveyor was operated, how
much -- this metal was fatigued -- there could have been
maybe an accident, shortly thereafter, if it was turned on.
Just -- I had concern.

975

Q. And, concern about the safety of anyone who might walk
up on that conveyor belt?
A. Yes.
(T. 92)
The third modification was issued at 11:34 a.m. on Sunday,
March 22, 1987, to permit Western Fuels to repair the conveyor
belt, it being the opinion of Western Fuels Chief Engineer Mike
Weigand that upon completion of such the conveyor belt could be
safely operated (T. 92-94)
Inspector Hollopeter remained
concerned about the safety of the structure and wanted MSHA
"technical support people" to examine it. The third modification
thus continued MSHA control over this aspect of the matter. By
letter he requested them to examine it and subsequently received
a written report back indicating the structure was safe which led
to issuance of a fourth modification of the Order in May, 1987
(T. 93-96, 98) which removed the structure from the effect of the
Order CT. 97). At this point only the truck remained under the
control of the Order CT. 98). Following further investigation of
the truck and the Inspector's receipt of information that the
truck had no indications of defective parts, malfunction, etc.,
Inspector Hollopeter terminated the subject Section 103(k)
withdrawal order (T. 98-100).
Michael J. Weigand, Western Fuels' Chief Engineer at the
Deserado Mine, testified that when he inspected the overpass
structure on the day of the accident he observed that one of the
diagonal braces had broken loose and there was "some damage" to
the ends of some I-beams which run "roughly parallel to the road"
underneath the structure (T. 363). He felt that the photographs
in the record as exhibits C-5, 10, 16 and 17 accurately depicted
the damage to the structure imediately after the accident (T.
362-368). Mr. Weigand indicated that his inspection disclosed a
5-inch deflection of the structure the existence of which "was
possible" before the accident (T. 371). He conceded that "there
could be some effects from that accident" that could "weaken" the
structure over the "longterm" (T. 373-374> and the relatively
extensive repairs made to the structure after the accident were
done because such were reimbursed by insurance, it took a shorter
time to perform the repairs in that manner, and it was decided to
do it "right" so that the structure would last its projected
30-year term (T. 374-376).
During the MSHA investigation in the 2-day period following
the accident, Mr. Weigand participated and gave his opinion to
Inspector Hollopeter that the structure "was safe" (T. 377-378 ).
It was also his opinion that the structure was not a "dangerous
overpass" either before or after the accident (T. 386).
On cross-examination, this exchange, of some significance,
between Mr. Weigand and MSHA's counsel occurred:

976

Q. All right. And, you did tell Mr. Hollopeter, as I understand, that it was your opinion that there were some braces
that should be replaced on this overpass?
A. I felt that if immediate work was done, that that's the
part that should have been done, yes. CT. 392)
Mr. Weigand also conceded the possibility that the cracked
paint on the structure occurred as a result of the truck's impact
with it CT. 396).
Maintenance Superintendent Anthony Lauriski described the
damage to the overpass structure as follows:
A.
There was two trusses tore loose, and the hand rail was
sort of bent in one spot, and there was some damage to the
supports that go across and hold the walkway up (T. 410).
Western Fuels' Safety Instructor/Inspector David G. Casey,
who in the beginning took charge of the rescue operation,
described the damage to the structure this way:
"We had a couple of cross-beams that were tore loose- they
were vertical beams, and a few I-beams that had been bent."
CT. 450)
Mr. Casey expressed the opinion that the overpass was not
dangerous, perilous or risky either before or after the accident
CT. 452, 461) for persons or vehicles to travel under or near CT.
461-462).
As to that part of the Order pertaining to the truck, Mr.
Lauriski testified that he first "knew" there was no malfunction
which would have caused the bed to raise (and thus cause the
accident) when the valve was disassembled after the truck was
taken to the repair shop CT. 419). This is supportive of the
Inspector's judgment.
Although Western Fuels, in its Brief, repeats several times
the charge that Inspector Hollopeter's issuance of the Section
103(K) Order was to "preserve evidence"- an allegedly unauthorized purpose, I find no direct or substantive support in
the record, arguments or briefs for making such a finding.
Inspector Hollopeter testified that he issued the subject order
so that could "go in and look at the area to insure the safety of
the miners" CT. 34). Scrutiny of the actions of the Inspector,
from the time of his notification of the accident through his
ensuing investigation and issuance of the Order and its three
primary modifications, supports the contention of the Petitioner
that "Throughout the course of the investigation, as Mr.
Hollopeter learned more of the accident and investigated the

971

site, he was .able to modify the order to keep in line with what
he knew, while still ascertaining that no further injuries would
occur." The nature of the possible hazards which the impact
might have sustained to the structure (See Ex. C-2) and the
possible problems with the truck which could have caused the bed
to raise without operator negligence, all adequately evidenced in
this record, would have made it irresponsible for the Inspector
to have Cl> proceeded without issuing the Order, or (2) to have
terminated the Order prematurely.
I find no support in the
record for the proposition that the Order was issued either
routinely or for the sole-or primary-purpose of ireserving
evidence pending a post-accident investigation. _/
western Fuels' contention (Brief, p. 22) that "The inspector
used a club when a simple 'please' would have been sufficient,"
ignores the responsibility placed on the Ins~ector by the Mine
Act to insure safety in such circumstances. _/
There being no admissions or substantive or probative
evidence upon which to conclude otherwise, it is found that the
exercise of discretion by the Inspector in issuing the Order and
its modifications was appropriate in the circumstances and that
such Order and its modifications should be affirmed.
C. Docket No. WEST 87-167-R
Citation No. 2835326
The "Condition or Practice" deemed a violation by Inspector
Hollopeter was described in Section 8 of the Citation as follows:
"The operator did not immediately contact the MSHA District
or Subdistrict off ice having jurisdiction over its mine
of an accident which had injuries to two miners which had
reasonable potential to cause death. A non fatal powered
haulage accident occurred on 3/20/87 about 9:25 a.m. in

!/

The Inspector, under Section 103(j) of the Act, certainly
does have an independent obligation and responsibility to take
appropriate measures "to prevent the destruction of any evidence
which would assist in investigating the cause or causes" of an
accident.
21 The responsibility for determining structural damage to the
overpass and conveyor, any truck malfunction, and any patent or
latent safety hazards stemming therefrom, is recognized as a
considerable one. Any question in the mind of the sole person
bearing this burden in mine safety enforcement would necessarily
be resolved on the side of safety.

978

which an Euclid R-50 (Co No. 4) End dump haulage truck
contacted the No. 2 Beltline Conveyor overpass and the two
miners in the cab were seriously injured. MSHA Glenwood
Springs, CO. field off ice was notified of the accident .
12 p.m. on 3/20/87."
The standard alleged to have been violated was, 30 C.F.R.
50.10 (entitled "Immediate Notification") which is placed in the
codification system of the regulations under Subchapter M
(entitled "Accidents, Injuries, Illnesses, Employment, and
Production in Mines"), under Part 50 thereof (entitled "Notification, Investigation, Reports and Records of Accidents,
Injuries, Illnesses, Employment and Coal Production in Mines")
and lastly under Subpait B thereunder (entitled "Notification,
Investigation, Preservation of Evidence"). Section 50.10
provides:
"If an accident occurs, an operator shall immediately
contact the MSHA District or Subdistrict Off ice having
jurisdiction over its mine.
If an operator cannot
contact the appropriate MSHA District or Subdistrict
Off ice it shall immediately contact the MSHA Headquarters
Office in Washington, D.C., by telephone, toll free at
(202) 783-5582."
The issue posed by Western Fuels in connection with this
Citation is:
"Does an operator violate the immediate reporting obligation of the regulations where he delays advising MSHA
for 2 hours while devoting full attention to the rescue
of injured miners, and where the delay does not exacerbate
the rescue efforts or hinder the subsequent accident investigation?" ~/
It has been stipulated, and the record also reflects, that
the accident occurred at 9:25 a.m. and that Western Fuels
reported it to MSHA's Glenwood Springs Office at 12 noon (T. 107,
109, 448). This coincides with the 2 1/2 hour period of the

6/ It is initially noted that the questions whether the delay
Cl) exacerbated rescue efforts, or (2) hindered MSHA's investigation, would relate more directly to the penalty assessment
factor of seriousness, rather than to the occurrence of an infraction of the standard cited. Obviously, at the time of delay
in notification, the ultimate effects thereof may not be
recognizable and the elements of proof inherent in the
phraseology of the regulation contain no such exception for
situations where there is no prejudicial effect. A roof-control
requirement, for example, is not self-abregating where the violation of such does not cause an injury - causing fall.

979

rescue operation (T. 111). Evidence of record (Ex M-5) indicates
that passeng~r Mike Smith called in the accident on his two-way
radio Chand-held pack-set) at approximately 9:23 a.m.
The first individual on the scene was a Coca-Cola delivery
man. When he first arrived at the scene he thought no one was in
the truck but upon investigation he saw and heard Mike Smith
calling on the radio for help. When he heard no response to the
first call for help, he got on Mike's radio and repeated the call
for help.
Immediately upon receiving the call that two miners
were trapped in an overturned haul truck, the Western Fuels
ambulance was dispatched and the Rangely District Hospital was
notified at approximately 9:27 a.m. that their ambulance was also
needed. The Rangely Rural Fire Protection District was also
notified at this time. A Western Fuels Security Guard was
dispatched immediately to the scene and arrived at 9:26 a.m. This
security guard and the preparation plant foreman arrived in a
Ford pickup (security vehicle).
Western Fuels' Safety Director at the time, Jerry Kowlok CT.
406), who did not testify, reported to Inspector Hollopeter that
he contacted the Glenwood Springs off ice at about 12 noon and
that he was "the only person designated to contact MSHA on an
accident" CT. 109, 110, 339, 421, 447, 466-467)~ Mr. Kowlok did
not make this report until after he had left the accident scene
(T. 448, 459, 460). Mr. Kowlok had a radio at the scene of the
accident, was in contact with his security base which had a
telephone, and thus had the means by which to immediately notify
MSHA of the accident (T. 335-336, 406, 429-430, 434, 459-460,
468-469).
Some of the general purposes of immediate notification are
Cl) determination of the type of accident, (2) getting the
nearest available MSHA inspectors to the accident site, (3)
allowing MSHA the opportunity to supply expertise to the
situation as well as special equipment and special rescue teams,
and (4) prevention of future accidents CT. 109-110). According
to the Inspector, however, no such rescue teams, etc. were
actually available for use in rescuing the two miners trapped in
the truck in the instant situation CT. 176-180). On the other
hand, MSHA was deprived of any opportunity to immediately
investigate or be present at the accident site to assist in
rescue or attempt to prevent further injuries. There was no
allegation or evidence that notifying MSHA would have been a
futile act i.e., that based on past inept performances by MSHA in
accident situations, that Western Fuels was justified in
believing a 2 1/2 hour delay would make no difference.
Further, there was no evidence presented that it was
impossible- or even difficult- for Western Fuels to have notified
MSHA imediately CT. 335-340, 341, 361, 406-408, 420, 428-432,
460, 466-468).
There clearly was available the means of

980

communicating with MSHA and various management and other
personnel available to do it.
It is thus concluded that the
violation as charged in the Citation occurred and that Western
Fuels was negligent in the commission of such. The regulation
infracted constitutes a highly important aspect of mine safety
process and enforcement in terms of both accident investigation
and assistance and is eroded only at considerable cost in the
perspective of future accidents and tragedies. The importance of
this regulation is related to the role Congress has mandated for
inspectors in the Act itself (See Sections 103(j) and (k) thereof). Although the probability that the delay did not affect
rescue or investigation processes, the humanitarian interests of
Western Fuels' personnel, and the emotionally traumatic aspects
of the incident itself are to be inferred from the record overall
and stand in some mitigation of the considerable seriousness and
culpability to be attributed to the violation, 7; the $20 penalty
sought by the Secretary, being but a token sum,-is not considered
appropriate. A penalty of $150.00 is assessed.
D. Docket No. WEST 87-168-R
Citation No. 2835327
The "Condition or Practice" charged to be a violation by
Inspector Hollopeter was described in Section 8 of the Citation
as follows:
"The equipment, Euclid R-50 (Co. No. 4) End dump haulage
truck, being driven from the Pit 2-3 Refuse dump to the
preparation plant was not secured in the travel position.
A nonfatal powered haulage accident occurred, severely injuring the operator and passenger of the truck, when the
raised truck bed struck the No. 2 Beltline Conveyor Overpass. Through interviews it was determined that it is the
Company policy to have the bed of the truck lowered when
traveling."
The standard allegedly violated was subsection (s) of 30
C.F.R. § 77.1607 pertaining to "Loading and Haulage Equipment1
Operation", which provides:

7/ The parties, as part of their written stipulation (Court Ex.
1) concurred that Western Fuels is a large bituminous coal mine
operator and that it proceeded in good faith in attempting to
achieve rapid compliance after notification of all the alleged
violations. As part of the same stipulation, the parties
submitted into evidence a computerized history of prior violations (Ex. M-1) indicating that Western Fuels had 129 previous
violations in the 2-year period preceding the issuance of the
subject Citations.

981

"When moving between work areas, the equipment shall be
secured in the travel position." ~/
Inspector Hollopeter designated this to be a "significant
and substantial" violation on the face of the Citation, giving
rise to what appears to be the contention raised by Western
Fuels: "Should an operator be charged with a significant and substantial violation where a driver, contrary to common sense,
company policy, and specific operational instruction, operates a
dump truck without lowering the bed" (Western Fuels Brief, p. 33).
It is noted parenthetically at this juncture that the phraseology
of this contention appears directed more to the mine safety
concepts of "liability without fault" and mitigation of the
penalty assessment criterion of negligence than to the "significant and substantial" formula.
I first find that it is a violation, whether or not a
"significant and substantial" one. Thus, in reaffirming the
strict liability or "liability without fault" doctrine's
application in mine safety matters in Western Fuels-Utah, Inc.,
10 FMSHRC 256 (March 25, 1988), the Commission pointed out that
the principle of liability without fault requires a finding of
liability even in instances where the violation results from
unpreventable employee conduct.
It thus rejected the notion of
an exception to the rule even for unforeseeable employee
misconduct. ~/ The parties have stipulated, and the record is
clear, that the accident occurred because the truck operator
failed to lower and secure the truck bed. The bed was raised
when the accident occurred CT. 408, 418-419). The truck thus was
not in "travel position" as the standard requires and Ackerman
was driving the truck between work areas when the accident
occurred.
This constitutes a violation of the pertinent standard.
For purposes of liability- as distinguished from penalty
assessment purposes-- a miner's negligence or misconduct is
properly imputed to the mine operator. Secretary v. A.H. Smith
Stone Company, 5 MSHRC 13 (1983). The question of negligence
imputation for penalty purposes will be taken up subsequently
herein.
In a recent decision Secretary v. Texasgulf, Inc., 10 FMSHRC
(April, 1988) the Commission reaffirmed its position as
to proof of significant and substantial violations:
8/ "Travel position" for the truck in question required the bed
to be secured in its lowered position CT. 113, 242, 253-254). ·As
noted in the Citation itself and established at the hearing,
Western Fuels' policy required the truck, when moving, to have
the bed in the lowered "travel" position CT. 112-115, 226-227,
310).
21 I conclude elsewhere herein that the accident in question
occurred as a result of Mr. Ackerman's unforeseeable negligence.

982

"Section 104(d)(l) of the Mine Act provides that a violation
is significant and substantial if it is of "such nature as
could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard." 30 u.s.c. § 814Cd)(l). A violation is properly
designated significant and substantial "if, based on the
particular facts surrounding that violation, there exists
a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum, 3 FMSHRC 822,
825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984) the Commission explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary
must prove: Cl) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard -- that is, a measure of danger to safety
contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably
serious nature.
The Commission has explained further that the third element
of the Mathies formulation "requires that the Secretary
establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984) (emphasis deleted). We have emphasized that, in accordance with the language of section 104(d)(l), 30 u.s.c.
§ 814(d)(l), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and
substantial. Id. In addition, the evaluation of reasonable
likelihood should be made in terms of "continued normal
mining operations." U.S. Steel Mining Co., Inc., 6 FMSHRC
1574 (July 1984)."
In the circumstances of this case, the infraction of the
safety standard was clearly established, as well as the fact that
the violation contributed to the creation of a discrete safety
hazard. Not only was there a reasonable likelihood that the
hazard contributed to would result in an injury, but the hazard
actually occurred, that is, it came to fruition when the raised
truck bed struck the overpass structure, the direct result of
which were the serious injuries to Ackerman and Smith CT.
115-118, 408; Ex. M-5). This is found to be a "significant and
substantial" violation.
We turn now to the questions of negligence and mitigation.
Mr. Ackerman was a full-time employee whose primary job was to

983

drive the Euclid R-50 haul truck and another haul truck whose
dumping mechanism was similar to that of the Euclid. Ackerman
would normally Cat least since December, 1986) make 8-13 trips a
day from the preparation plant-to the refuse dump CT. 220-222,
286). Ackerman was familiar with the road-and by inferencethe presence of and characteristics of the overpass he was to
travel under CT. 283-286; See also "General Findings", supra).
Western Fuels established that in December, 1986, Mr.
Ackerman had been trained in the operation of the Euclid R-50
truck by its Surface Area Foreman, Daniel J. Rideout CT.
216-218).
This training covered proper dumping procedures which
Rideout described as follows:
"The proper dumping procedures would be to make sure your
area -- where you're backing on up to --- that there's
no obstructions or anything in the way, like that. Try
to be on as level ground as possible, and set your dump
bed; put your truck in neutral, sound the horn, dump your
load; lower your bed; sound your horn, again; release your
dump brake; put it in gear, and that's basically it; you're
done."
(emphasis added)
CT. 220)
Rideout described the Euclid R-50 as an "easy-to-drive",
stable truck which had no tendency to tip over, and said there
was no occasion on which it should be driven with the bed raised
CT. 225-226). Ridout reiterated the company "policy" of not
driving the truck with the bed raised and pointed out that such
is set forth also in the "Operator Handbook" for the truck, Ex.
C-7, at p. 33-35, CT. 227, 253, 293). Truck drivers were
directed to keep a copy of the Handbook in the truck and to read
it in their idle time CT. 228, 289). Rideout had never seen
Ackerman driving with the bed up and would have disciplined him
had he done so CT. 232-233). Rideout was certain that in
meetings with his drivers, which I conclude would have included
Mr. Ackerman, that the need for lowering the truck bed before
traveling was discussed CT. 248, 258, See also T. 288). The
drivers, however, were not specifically advised that the haul
truck with the bed up would not clear the overpass, nor were they
specifically advised what the height of the truck was with the
bed raised CT. 258). Nor were they specifically advised what the
clearance of the overpass was CT. 259). This was the only
overpass the truck drivers would have occasion to drive under
(Tr. 259).
The overpass was constructed in 1982 and would have been in
existence throughout Mr. Ackerman's tenure as truck driver CT.
251).

984

At the time of the accident there was no sign or notice in
the cab of the truck to remind the driver to lower the bed CT.
270) although such notice was apparently installed thereafter CT.
270, 323). There was an "indicator" (depicted in Exhibit C-11>
which comes down in front of the truck's windshield from which
the truck driver can determine if the bed was raised or lowered
CT. 255-256, 262-263, 296).
Jack L. Munfrada, a Surface Area Foreman, described the bed
indicator in the following examination sequence:
"Q.
Is there any other way, when you're sitting in the
driver's seat, or in the passenger's seat, that you can
see that the bed is in the air?
A.
Yes. There's a bed indicator on the bed of the truck.
If the bed is lowered, it is in the right-hand corner,
visually through the eight-inch window, and it is a round
-- in diameter, approximately five inches, with a decal -a red and white decal, with a black figure, pointing back
towards the dump box.
Also, you can see it through the
driver's mirror, very plainly.

Q.

You can see the bed through the driver's

A.

Yes.
You could see it out the passenger door window
you could see the headache rack. And, also, if the bed
was up in the daytime, you'd notice the change in light."
CT. 296-297). 10/
Based on its maintenance records and "Pre-shift Operator's
Check Lists", Western Fuels had no indication to believe that the
subject truck was not functioning properly in proximity to the
accident (T. 402-406, 410-413) and in the absence of any other
evidence to the contrary, and in light of the evidence indicating
operator failure as the cause of the bed not being lowered to
travel position, it is inferred and found that the truck was in
proper operating condition at the time of the accident.
The record in this proceeding indicates that the cause of
the accident was the operator's failure to lower the bed before
proceeding on to the haul road and moving the vehicle to its
point of impact with the overpass structure.
10/ From this dialogue as well as other evidence CT. 255-259)
indicating other reasons why a truck driver would normally know
or be aware of the raised bed, I find and infer that for a driver
of the truck in question to proceed along the haul road with the
truck bed raised and not have such fact enter the stream of his
consciousness would be an unusual occurrence and one which would
not be foreseeable by his foreman or other management CT. 471).

985

David G. Casey, western Fuels' Safety Instructor, testified
that he visited Mr. Ackerman in the hospital on the day of the
accident and recounted this conversation concerning what had
happened:
Q.

And, did he explain to you what happened?

A.
Yes. And -- and he said that he ~paced it -- he
couldn't believe that he'd spaced it out.

xxx

xxx

xxx

"The Witness:
He couldn't believe that he'd spaced it out
-- referring to the dump bed being up."
CT. 455-456)
When pressed to develop his understanding of Ackerman's use
of the phrase "spaced out", Mr. Casey stated:
"The Witness: -- and he said "spaced out", and then we
he said "I can't believe I f----- up", and he repeated it
again, "I can't believe I did that", you know."
CT. 471)
From this and other evidence of record indicating Ackerman
was a "good" employee who had received safety training CT.
439-445) it is concluded that the accident resulted from Mr.
Ackerman's negligent oversight in not lowering the bed of the
truck, and that such negligent conduct was not foreseeable by
Western Fuels' responsible management personnel. Southern Ohio
Coal Co., 4 FMSHRC 1459, at 1463-1464 Cl982).
In this
connection, it is further noted that there is no evidence of
prior accidents having occurred at the overpass CT. 465).
While a mine operator is not necessarily shielded from
imputations of negligence even where non-supervisory employees
such as Mr. Ackerman are concerned, A.H. Smith Stone co., 5
FMSHRC 13 Cl983), for the negligence of the miner to be attributed to the operator, consideration must be given the
foreseeability of the miner's conduct, the risks involved, and
the operator's supervision, training and discipline of its
employees.
Here, the record indicates that the mine operator
fulfilled its obligations as to training and in the establishment
of its policy as to not operating the truck with the bed raised.
MSHA, in its brief does not contend (or discuss) imputation. Mr.
Ackerman's negligence in the commission of the violation will not
be imputed to Western Fuels, Southern Ohio Coal Co., supra, at
1465.
In view of the seriousness of this violation, and upon
evaluation of the other general mandatory penalty assessment
986

factors previously discussed in connection with Citation No.
2835326, a penalty of $300.00 is determined to be appropriate and
assessed.
E. Docket No. WEST 87-169-R
Citation No. 2835328
. The "Condition or Practice" deemed a violation by Inspector
Hollopeter was described in Section 8 of the Citation as follows:
"The No. 2 Beltline Conveyor Overpass above the haul road
(County Rd. No. 78) was not conspicuously marked or warning
devices installed when necessary to insure the safety of
the workers. A nonfatal powered haulage accident occurred
when an Euclid R-50 End dump (Co. No. 4) raised bed contacted the overpass while traveling on the haulage road. The
operator of the truck and passenger were severely injured.
At the time of the investigation the overhead clearance
was not marked.
The standard allegedly violated was Subsection Cc) of 30
C.F.R. 77.1600 (entitled "Loading and haulagei General") which
states:
"Where side or overhead clearances on any haulage road
or at any loading or dumping location at the mine are
hazardous to mine workers, such areas shall be conspicuously marked and warning devices shall be installed
when necessary to insure the safety of the workers."
Although the Inspector originally charged that this was a
"significant and substantial" violation, the Citation was
subsequently modified to delete such designation upon further
investigation CT. 158-160).
Western Fuels contends that the Conveyor CCNV-2) overpass
was not "hazardous to mine workers" and thus warning signs (or
devices) were not required.
Evidence in the record establishes that other than speed
limit signs CT. 448) there were no signs, warnings, "clearance"
signs or flashing lights on the overpass structure or conveyor
(T. 118-121, 189-192, 245-246, 259, 463), or on the road on
either side of the structure CT. 189, 448). Specifically, there
was no sign on the overpass which said what the clearance was (T.
259). Inspector Hollopeter was of the opinion a hazard existed
because there was no sign warning of the clearance of the
overpass structure either on the structure itself or back along
the haul road (T. 121-125).

987

There are no regulations applicable in mine safety matters
which establish height requirements for structures such as the
subject overpass CT. 382).
·
The U.S. Department of Transportation's Manual on Uniform
Traffic Control Devices (Ex. C-14) requires signs when less than
12 inches clearance is provided over the highest vehicle being
used on the roadway CT. 380-381).
Chief Engineer Weigand expressed the opinion that prior to
the accident the overpass structure was not "dangerous"
"perilous" or "risky" CT. 386). As noted previously, there had
been no prior accidents at the overpass, and in view of Cl) the
significant clearance height of the overpass (ranging from 20-27
feet approximately), (2) the general compliance of the structure
with requirements other governmental agencies CT. 380-384)), (3)
the general opinions of Western Fuels witnesses that the overpass
was not "perilous" or dangerous, (4) the vagueness of MSHA's
evidence and theory that the overpass was hazardous, and (5) the
fact that the accident under scrutiny herewas caused by the
forgetfulness of a truck driver who broke the rule against
driving with the bed raised and who had been passing under the
overpass some 20 times a day for months, it is concluded that the
overpass clearance was not "hazardous" within the meaning of the
regulation cited and that no violation occurred.
ORDER
Cl) Withdrawal Order No. 2835325 and its modifications are
affirmed.
(2) Citations numbered 2835326 and 2835327 {including its
"Significant and Substantial" designation> are affirmed.
(3)

Citation No. 2835328 is vacated.

Contestant/Respondent Western Fuels shall pay the Secretary
of Labor the total sum of $450.00 as and for the civil penalties
hereinabove assessed on or before 30 days from the date of this
decision.

/ , . . /. ~{!·~df"
,/~_ ~ ,,6
. /.J'~~~e·
A __
~1chael • Lasher, Jr.
Administrative Law Judge

988

Distribution:
Karl F. Anuta, Esq., P.O. Box 1001, 2120 13th Street, Boulder, co
80306 (Certified Mail>
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
co 80294 (Certified Mail)
United Mine Workers of America, Local 1984, District 15, Box 615,
Rangely, CO 81648 (Certified Mail)

/bls

989

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

AUG 5 \988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 87-77-M
A.C. No. 34-00026-05513
Tulsa Cement Plant

BLUE CIRCLE INC.,
Respondent
DECISION
Appearances:

Michael Olvera, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
the Petitioner;
Robert McCormac, Industrial Relations Manager,
Blue Circle Inc., Tulsa, Oklahoma, for the
Respondent.

Before:

Judge Koutras
Statement of the case

This proceeding concerns proposals for assessment of
civil penalties filed by the petitioner against the respondent
pursuant to section llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 820(a), seeking civil penalty
assessments in the amount of $377 for five alleged violations
of certain mandatory safety standards found in Part 56,
Title 30, Code of Federal Regulations. The respondent filed
an answer denying the violations, and a hearing was held in
Tulsa, Oklahoma. The parties were afforded an opportunity to
file posthearing briefs, and the respondent's arguments presented therein have been considered by me in the adjudication
of this matter. The petitioner opted not to file any posthearing arguments.
Issues
The issues presented in this proceeding are whether the
respondent violated the cited mandatory safety standards, and
if so, the appropriate civil penalty to be assessed for those

990

violations based on the criteria found in section llO(i} of
the Act. Also at issue are the inspector's "significant and
substantial" CS&S) findings, and the respondent's contention
that the petitioner failed to follow its civil penalty assessment regulations by not affording the respondent an opportunity for a conference with respect to one of the modified
citations.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et~·

u.s.c. § 820(i).

2.

Section llO(i) of the 1977 Act, 30

3.

Conunission Rules, 20 C.F.R. § 2700.1 et seq.

Stipulations
The parties stipulated to the following (Tr. 3):
1. The respondent's history of violations during the
24-month period prior to the issuance of the citations in
issue in this case consists of ten (10) violations issued
during the course of 40 inspection days.
2. The respondent's Tulsa Cement Plant had an annual
production of 235,139 tons, and the annual production rate of
its parent corporation, Blue Circle, Incorporated was
1,577,966 tons.
3. The payment of civil penalties for the violations in
question in this case will not adversely affect the respondent's ability to continue in business.
4. The respondent's representative stated that the
respondent mines limestone, and that the product produced is
Portland cement.
Discussion
The contested citations were issued by MSHA Inspector
James M. Smiser during the course of inspections he conducted
at the mine on March 24 and 25, 1987, and they are as follows:
Section 104(a} "S&S" Citation No. 2870013, March 24,
1987, cites a violation of 30 C.F.R. § 56.20003(a}, and the
condition or practice states as follows:
The passageway on the #3 conveyor, in
crushing division, was not maintained in a

991

clean and orderly condition. An excessive
amount of rock and materials were allowed, to
accumulate on passageway, making movement
hazardous for employee.
Section 104Ca) "S&S" Citation No. 2870015, March·24,
1987, cites a violation of 30 C.F.R. § 56.4102, and the condition or practice states as follows:
The combustible liquid spillage and leakage, at the Allis-Chalmers primary crusher
hydraulic control center, was not removed in a
timely manner, or controlled to prevent a fire
hazard. The oil spill/leak was large enough to
cover floor area used as a passageway.
The citation was subsequently modified on May 11, 1987,
to change the cited standard from section 56.4102 to section
56.20003, and the condition or practice was modified to read
as follows:
The floor at lower level of the primary
crusher work area was not maintained in a clean
and dry condition. The hydralic (sic) oil
spillage and leakage at the hydralic (sic)
control center covered the floor area used as a
passageway.
Section 104Ca) "S&S" Citation No. 2870016, March 24,
1987, cites a violation of 30 C.F.R. § 56.20003(a), and the
condition or practice states as follows:
The passageway on west end of primary
crusher discharge leaf conveyor was not maintained in a clean and orderly condition. The
passageway was cluttered with steel plates,
wood, and other materials.
Section 104(a) "S&S" Citation No. 2870742, March 24,
1987, cites a violation of 30 C.F.R. § 56.6112, and the
condition or practice is described as follows:
The burning rate of the safety fuse in use
at quarry operation was not measured, posted in
conspicuous location, and brought to the attention of all persons concerned with blasting.
The last posted burning rate was 1985.

992

Section 104(a) "S&S" Citation No. 2870741, March 25,
1987, cites a violation of 30 C.F.R. § 56.11012, and the condition or practice is stated as follows:
The opening at far east end of travelway,
on north side of conveyor, between plant and
clinker storage area is not provided with railings, barriers, or covers, to provide employee
protection from a 15 to 20 feet fall, to bottom
of storage bin.
MSHA's Testimony and Evidence
MSHA Inspector James s. Smiser, testified as to his background and experience, and he confirmed that he issued the
citations in question during the course of a scheduled regular
inspection conducted at the mine. He described the mine as an
open pit limestone mine with an associated cement mill, and he
confirmed that the mine employed approximately 80 employees
working three shifts (Tr. 6-9).
Citation No. 2870013 - 30 C.F.R. § 56.20003(a)
Inspector Smiser stated that he issued the citation for
an accumulation of materials which he found along an inclined
conveyor belt that is used in conjunction with the crushing of
materials. He believed that the material had fallen off the
belt onto the walkway or passageway along the north side of
the belt which proceeded from ground level up into the mill
building. The crushed limestone material was of various
sizes, from three-quarters of an inch to an inch and a half,
and in some areas it completely covered the walkway surface,
running over the kick-plate located along the side of the
floor of the walkway. He confirmed that section 56.20003(a)
requires that passageways or walkways be maintained in a safe
condition free of accumulated materials, and in his opinion,
the cited accumulations presented a tripping or falling hazard.
The purpose of the three-inch kickplate was to prevent the
materials from falling off the walkway to the ground level
below and to prevent persons using the walkway from falling
off the walkway. He confirmed that a standard handrail, with
an upper and mid rail, was installed along the walkway (Tr.
10-11).
Mr. Smiser stated that his gravity finding of "highly
likely" was based on his opinion that the presence of accumulated materials above the kickplate level presented a "very
great chance" of someone falling. Although someone falling
would not fall to the ground level below, they would probably

993

catch themselves within the walkway area, but could possibly
sustain a back lnjury or a broken arm, leg, or ankle. He
determined that one individual such as a serviceman conducting
an equipment inspection regularly travelled the walkway and
would be exposed to the hazard. Such a person would normally
be carrying a grease gun or other service equipment in one
hand, leaving only one hand free for balance in the event he
fell. This increased the chances of an injury.
Mr. Smiser believed that it was reasonably likely that
the hazard created by the accumulations would result in an
injury of a reasonably serious nature (Tr. 11-13). Mr. Smiser
confirmed that he made a finding of "moderate negligence"
based on information supplied to him during his close-out conference which indicated that the accumulations had existed
prior to his inspection and would have been there more than
one time. He was told that the accumulations resulted from an
engineering problem associated with the conveyor and were
often present. Abatement was achieved by the removal of the
materials from the walkway (Tr. 13).
On cross-examination, Mr. Smise~ stated that it was
unlikely that anyone could slip completely under the handrail,
and he confirmed that he was familiar with the respondent's
belt maintenance procedures (Tr. 28).
Citation No. 2870015 - 3-0 C.F.R. § 56.4102
Mr. Smiser stated that he issued the cit~tion after finding spillage of hydraulic fluid caused by a leak of a crusher
hydraulic system located in the crusher plant. The spillage
was located on the concrete floor area which was surrounded by
handrails. The leak had been present for some time, and in an
effort to control it, clay absorbent material was spread over
the spillage in an effort to dry it up. At a later date,
wooden planks were put down over the spillage for access
around the crusher to the hydraulic control unit. Mr. Smiser
stated that section 56.4102 requires that the floor "be kept
clean and orderly" (Tr. 15).
Mr. Smiser believed that the cited condition presented a
probable slip and fall hazard to a serviceman who periodically
was in the area to check the hydraulic oil in the crusher
unit, and that he would likely suffer back injuries if he were
to slip and fall on the walkway surface. Mr. Smiser estimated
that the variance between the flat walking surface and the
planks ranged between zero and 3 inches. He believed the condition resulted from "high negligence" because it was obvious
that the spillage and leakage had existed for some time since

994

the clay absorbent material and wooden planks had been used in
an attempt to control the spillage. The violation was abated
by the removal of the spillage and controlling the leak (Tr.
16-17).
On cross-examination, Mr. Smiser confirmed that his citation was subsequently modified on May 11, 1987, to delete the
reference to section 56.4102, and to replace it with section
56.20003, and that his original negligence finding was modified from "moderate" to "high." Mr. Smiser confirmed that the
modifications were made after a post-citation conference with
his supervisor Russell Smith in which he and Mr. McCormac were
involved. Mr. Smiser confirmed that he believed the original
citation was properly issued but that Mr. Smith believed that
the cited hydraulic oil was not as combustible as he (Smiser)
had originally believed, and that the decision to modify the
citation was made by Mr. Smith (Tr. 30). Mr. Smiser stated
that the modified citation was mailed to the respondent and he
had no knowledge as to whether or not another conference was
held to discuss a clean-up problem rather than a combustibility problem (Tr. 31). Mr. Smiser conceded that the use of
absorbent materials and the installation of wooden planks on
the floor in an area of spillage is normally done to alleviate
or avoid problems and as an effort to provide safe access. He
was sure that a serviceman had to go to the area to check the
hydraulic oil, but could not state how often this would occur
(Tr. 32-33).
Citation No. 2870016 - 30 C.F.R. § 56.20003(a)
Inspector Smiser stated that he issued the citation after
finding steel plates, wood, and other materials such as cans
of lubricant on the walkway which had been constructed around
a leaf conveyor. The conveyor itself was well guarded and
presented no problem. The steel plates consisted of removable
inspection and service covers which had apparently been
removed at some previous time and left on the walkway. The
plates were located at the top of a staircase leading to the
walkway. Once reaching the top of the staircase, one had to
step on top of the plates which were stacked unevenly on top
of each other in a "tipping" manner. Since there was no solid
walkway surface, he believed that it was reasonably likely
that an injury would occur in the event of a slip or fall (Tr.
18) •

Mr. Smiser stated that the walkway in question was in a
very isolated area of the plant which was not traveled by a
large number of people, but that a serviceman in the area
servicing the conveyor and associated equipment once a shift

995

would be exposed to the hazard. Mr. Smiser believed that if a
·slip or fall injury occurred, there was a reasonable likelihood that it would be of a reasonably serious nature. He made
a determination of "moderate negligence" on the basis of the
amount of stone dust on top of the plates and other materials,
indicating that they had been present for some time. ·The violation was abated by the removal of the materials (Tr. 18-19).
On cross-examination, Mr. Smiser stated that the passage~
way in question did not lead to any other location, and in
order to get back from where one started, one would have to
turn around and go back in the opposite direction. Under the
circumstances, it would be unlikely that employees on any
casual travel through the plant would use the cited passageway, and any hazard exposure would be extremely limited on the
platform. Mr. Smiser confirmed that it was possible that a
failure of a dust collector earlier on the day of his inspection could have caused the presence of the dust which he
observed on the materials, and that such a failure could
possibly accumulate dust in a fairly rapid period of time (Tr.
40). The removal of the plates from the conveyor would not
pose a hazard to employees in the area from which they were
removed because the walkway would not normally take anyone to
that particular area (Tr. 49).
Citation No. 2879742 - 30 C.F.R. § 56.6112
Mr. Smiser stated that he issued the citation after finding that the last safety fuse burning rate posted in the magazine was dated 1985. Since his inspection was conducted in
1987, he was concerned that the 1985 burning rate may not have
referred to the identical material which was burned and then
marked on the wall for use in 1987. He was also concerned
with the fact that the 1985 fuse burning rate was currently
being maintained as it was in 1985, and that explosives "have
of a way of aging unpredictably." He believed that a more
current rate should have been posted, and he pointed out that
the explosive manufacturer's literature suggests that the age
of explosives in very unpredictable in terms of performance.
Under these circumstances, he stated that "I was not comfortable with the two-year time," and he confirmed that the explosives industry recommends that explosives should be tested at
least once a year. He also confirmed that section 56.6112
does not include any dating requirement (Tr. 20-21).
Mr. Smiser stated that he based his gravity finding of
"reasonable likely" on the fact that if the fuse burning rate
was greatly increased, an individual using the explosives may
not be able to get away from it before an explosion took place.

996

If he could not, serious injuries would result to one individual lighting the fuse (Tr. 22). He made a finding of "low
negligence" because the respondent made an effort to comply by
posting the 1985 fuse burning rate and did not ignore the
regulation. Abatement was achieved by testing the current
fuse burning rate, and this was done by cutting off a measured
length and determining the proper fuse burning rate and
re-posting it. He could not recall the exact burning rate
time but indicated that it "was very close" to the 1985 rate
which had been previously posted (Tr. 22-23).
On cross-examination, Mr. Smiser confirmed that the frequency of posting a fuse burning rate, as recommended by a
manufacturer such as Dupont, cannot be readily ascertained by
anyone by simply looking through MSHA's Part 56 standards, and
that one cannot know by reference to these regulations as to
whether or not MSHA has incorporated these recommendations as
part of its regulatory mandatory standards. He also confirmed
that the only way for the respondent to know whether the recommendations by a manufacturer have been adopted by MSHA is to
ask an inspector when a citation is issued, or by a reference
to the recommendation itself (Tr. 42).
Mr. Smiser stated that while other MSHA standards do
incorporate alcohol, tobacco, and firearms regulations and
provisions of the National Electric Code as part of its regulations, one cannot find how often a safety fuse burning rate
should be posted because Dupont's ·blasting guides are not
incorporated by the cited standard (Tr. 42-43). Assuming that
the fuse burning rate posted at the time of the citation was
the same as the earlier rate 2 years ago, Mr. Smiser saw no
need to post it again and he would simply change the date (Tr.
43-44). Mr. Smiser confirmed that he determined that the fuse
in the magazine which was being used in 1987 came from an identical spool which was purchased in 1985 or earlier (Tr. 44).
Mr. Smiser confirmed that periodic blasting was taking place
during March, 1987, and assuming his inspection took place in
1985, no citation would have been issued because the burning
rate was posted and brought to the attention of mine personnel.
He issued the citation because the posted burning rate was
outdated and at least 2 years old (Tr. 48-49).
Citation No. 2870741 - 30 C.F.R. § 56.11012
Mr. Smiser stated that he issued the citation after finding that an opening at the end of a travelway alongside an
inclined conveyor running between the cement processing building and the clinker storage area was unguarded and had no
barrier to prevent an employee from stepping off the walkway

997

into the.storage area below. Although the respondent's practice concerning the wearing of safety glasses and safety equipment was very good, since the materials being transferred from
the belt to the storage area were hot, any given any humidity
present in the area, safety glasses can "fog up" very quickly
when one steps into the storage area. Mr. Smiser was concerned
that the unguarded area posed a potential for someone slipping
off the edge of the travelway into the storage bin. Section
56.11012 required a barrier or cover on the open-ended walkway
(Tr. 24) •
Mr. Smiser confirmed that although the unguarded area was
small, with a little walking area, a serviceman would be in
the "slipping area" and could fall through the unguarded opening for a distance of 15 to 20 feet or less, depending on the
build-up of loose materials in the cone-type configuration bin
below. Although he believed that someone falling into the bin
would have his fall broken by the loose materials and would
probably not suffer fatal injuries, he believed that they would
probably suffer a back injury or broken bones. A serviceman in
the area servicing the dead pulley and associated conveyor
parts would be exposed to the hazard (Tr. 25).
Mr. Smiser stated that he made a finding of "low negligence" because the respondent had not discovered the opening
or it probably would have covered it, and MSHA had not previously defined this area as a problem. The violation was
.
abated after the respondent provided a guard at the end of the
walkway (Tr. 26).
On cross-examination, Mr. Smiser stated that the conveyor
walkway entered the storage area of the adjacent building
where the tail pulley was located. He confirmed that it would
be unlikely that an employee would use the walkway as a means
of traveling from one point to another, except for performing
some work in the area.
In the event that no work had been
done in the area for weeks or months, this would possibly
explain why the opening was not discovered, and it was possible that there was extremely infrequent traffic in this area.
Even so, he still believed that it was not unlikely that an
accident could occur (Tr. 46). However, he would be surprised
if there was no one in the area at least once a shift to check
the conveyor service points, head pulley gear box, and to
check oil levels and grease the equipment (Tr. 47).
Respondent's Testimony and Evidence
Lee Bales, retired quarry superintendent, testified as to
his work experience, and he confirmed that he was actively

998

employed during the time of the inspection. Respondent's
representative made a videotape presentation of the locations
where the violations in question were issued, and Mr. Bales
explained what was depicted in the various scenes shown on the
videotape. The videotape was presented for the purpose of
familiarizing the court, and the parties, with the location
and physical parameters of the areas covered by the citations
issued by Inspector Smiser. Respondent's representative confirmed that the videotape was made subsequent to the issuance
of the citations, and that it does not show the area concerning the safety fuse burning rate citation (2870742), and that
Citation No. 2870741, dealing with the unguarded opening at
the end of the conveyor would be covered by another witness
(Tr. 61, 79).
Citation No. 2870013
Mr. Bales explained the purpose of the conveyor, and he
confirmed that the floor is constructed of grating, and that
the conveyor operates 5 days a week 8 hours a day. He stated
that an employee walking through the quarry area would have no
reason to use the conveyor aa a regular means of travel from
one place to another, and that they would normally use a staircase to gain access to the crusher building. However, the
conveyor walkway is used to gain access to the conveyor in the
event of maintenance problems or when the system is down for
maintenance or service. Normal operational procedures call
for the cleaning of the walkway when maintenance is required,
and in his 10 years as a supervisor there were no accidents or
injuries caused by materials on the walkway (Tr. 62-65). Any
greasing could be done from ground level by means of grease
hoses (Tr. 77).
Citation No. 2870015
Mr. Bales stated that there is no need to walk through
the cited area in the normal course of travel in the plant,
and the only need for anyone to be there is to perform maintenance work. A lubrication pump in the area periodically
causes oil leakage problems due to the over-tightening of a
"weeper seal," and attempts are made to keep any leakage off
the walkway floor by means of a bucket kept under the pump.
In addition, the area is always wet due to rain water running
into the area from outside, and "soakum" material and wooden
planks were used to alleviate these oil leakage and water
problems until the area could be cleaned up. Mr. Bales stated
f~rther that because of production and equipment difficulties
in any crushing operation there are occasions where more than
one area of the plant is in an unclean condition, and that in

999

the exercise of his judgment as a supervisor, he must determine which area needs to be cleaned first. Any such decisions
are made primarily on the basis of safety and any potential
employee hazard exposure, and secondarily, any potential equipment damage.
In his view, the cited area was a low hazard
area, and that the respondent's safety record attests to this
(Tr. 65-67).
On cross-examination, Mr. Bales stated that the pump is
operating constantly when the crushing system is running, and
during the winter months it operates all day. This causes a
seal "seepage" problem, and the buckets used to catch the
overflow would run over, and this would result in "a film of
oil" on the floor. The oil would never run over the woqden
planks (Tr. 75-76).
Citation No. 7870016
Mr. Bales stated that except for little maintenance work,
employees traveling through the cited area would not normally
use the passageway as a route to another work place. Any
oiling of equipment would be done while the equipment was
idle, and any clean-up judgments are made on the basis of the
hazard involved, and in his opinion the cited conditions would
not likely cause any accident of a reasonably serious nature
(Tr. 69).
Citation No. 2870742
Mr. Bales confirmed that he supervised the blasters, and
he explained the state training and licensing requirements for
blasters. He stated that the respondent uses safety fuses to
shoot water out of holes by means of a power primer and a
3-foot length of fuse.
Other blasting is done by an electrical "non-els" system. All blasters working for him are certified, and they are instructed in the proper use of safety
fuses.
The safety fuses were not used very often, and at
times, 2 or 3 months would pass before there was a need to
blast water out of holes.
Mr. Bales stated that he determined the burning rate of
the safety fuse by burning it, and the rate was posted in the
magazine, a conspicuous place for employees who had access to
the fuse.
Only he and the blaster had such access, and in his
opinion, he complied with the requirements of section 56.6112.
He confirmed that the standard contains no time restraints on
the frequency of posting the fuse burning rate, and he would
always test the fuse burning rate and post it as necessary.

1000

The standard does not require posting each time the fuse rate
is tested (Tr. 69-73).
On cross-examination, Mr. Bales confirmed that for many
years safety fuses have only been used for shooting water out
of holes. He also confirmed that he was "comfortable" with
the posted 1985 fuse burning rate, and if he were not, he
would have checked it and changed the date (Tr. 75).
Kenneth A. Lloyd, Process Engineer, and former maintenance
manager for 9 years, testified that he was familiar with most
of the plant areas and has had occasion to be in those areas
during his employment with the respondent. Referring to a
videotape presentation concerning Citation No. 2870741,
Mr. Lloyd explained the operation of the conveyor in question
and described the location where the citation was issued. He
confirmed that the alleged unguarded area was at the end of the
conveyor where a chain was installed, but not hooked up (Tr.
86). Respondent's representative asserted that there were two
chains in place, but that neither were hooked up. Mr. Lloyd
confirmed that the conveyor ends at the point where one can
enter the adjacent storage area, and that anyone walking to the
end of the conveyor would have to turn around and go back,
since the walkway ended at that point (Tr. 87-88).
Mr. Lloyd stated that a platform was installed several
years ago to facilitate some electrical work in connection
with the clinker storage area, but that normal maintenance
work was not performed from that platform. The platform is
used as access to a gate system used for freeing any material
blockage which seldom occurs. Any employee required to be on
the platform would use standard safety equipment such as a
safety belt and safety line attached to the handrailing (Tr.
89). No one is required on the platform to perform any
routine inspection or lubrication of the conveyor, and in his
opinion it was not reasonably likely that a serious injury
would result from the lack of a barrier at that platform
location (Tr. 90).
On cross-examination, Mr. Lloyd confirmed that the chains
were originally installed as a safety barrier so that someone
could reach into the chute area with a pole to free any
material blockage. It was his understanding that the chains
were unhooked at the time of the inspection (Tr. 90). In the
event the chains are unhooked, an employee would be required
to wear a safety belt (Tr. 91).
In response to further questions, Mr. Lloyd confirmed that the platform was located at
the same location as the end of the conveyor, which ends at
the same approximate location. He also confirmed that there

1001

was a spac~ between the platform and the conveyor, and if the
chains were not hooked up, there would be a drop to the
storage area below. A railing was provided for protection for
anyone falling off the conveyor travelway. Respondent's
representative confirmed that the chain location was the area
which concerned the inspector, and Inspector Smiser agreed.
Mr. Smiser could not recall the presence of any installed
chain, and confirmed that there was no barrier there. He also
confirmed that a handrailing was provided, and assuming the
presence of an unhooked chain, he would have issued a citation
for not having the chain up. Respondent's representative
stated that he was with the inspector during his inspection,
and was surprised that the chains were not hooked up.
Mr. Smiser confirmed that he did not have his inspection notes
with him (Tr. 92-95).
Robert McCormac, respondent's representative, reiterated
under oath that he was with the inspector and that a chain was
installed but was not hooked up. He confirmed that on prior
visits the chain was always hooked up, and that he was surprised that it was not hooked up at the time of the inspection.
Although the citation does not refer to any chain, he was convinced that the citation was issued because the chain was not
attached across the end of the walkway (Tr. 96). He also
agreed that there was an opening beyond the chain location
(Tr. 97).
With regard to Citation No. 2870015, Mr. McCormac read a
prepared handwritten statement explaining the respondent's
position concerning the citation. The statement consists of
arguments pointing out the mo<lif ication to the citation, the
subsequent conference held with MSHA's district manager, and
the fact that the respondent was not afforded another
conference after the citation was modified (Tr. 97-105).
Mr. McCormac conceded that the cited conditions did exist (Tr.
106).
Findings and Conclusions
Fact of Violations
Citation Nos. 2870013 and 2870016, 30 C.F.R. § 56.20003(a)
The inspector issued these citations after finding accumulations of rock and materials along the passageway of the
No. 3 belt conveyor, and steel plates, wood, and other materials along a passageway at the west end of a primary crusher
leaf conveyor. He cited a violation of the housekeeping

1002

requirements of mandatory standard section 56.20003(a), which
provides as follows:
At all mining operations(a) Workplaces, passageways, storerooms,
and service rooms shall be kept clean and
orderly;

*

*

*

*

*

*

*

In its posthearing arguments, respondent takes the position that the cited areas were not "passageways," and that the
citations should be vacated. Citing Webster's Dictionary
definition of a passageway as "a way that allows passage to or
from a place or between two points," and relying on the testimony of its former quarry supervisor Mr. Lee Bales, that
employees walking through the quarry area would not have
reason to use the conveyor walkways as a normal means of
getting from one place to another, or for access or as a means
of travel to any point in the plant, the respondent concludes.
that the cited areas were not passageways.
The definitions found in section 56.2, do not define the
term "passageway." The term "travelway" is defined as "a
passage, wall{ or way regularly used and designated for persons
to go from one place to ancither." Webster's New Collegiate
Dictionary defines the term "passageway" as "a way that allows
passage."
While it may be true that the No. 3 conveyor passageway
was not used by mine personnel in general as a means of travel
from the quarry to the plant, the facts show that it was a
walkway adjacent to the inclined conveyor which provided a
means of travel and access to the conveyor by mine personnel
and others who had a need to be there from time to time. As a
matter of fact, the parties in this case characterized the
"passageway" as a "walkway," and on the facts here presented
those terms are used interchangeably. Inspector Smiser testified that the walkway or passageway was used on a regular
basis as a means of travel along the conveyor by service
personnel for inspection or maintenance purposes.
With regard to the leaf conveyor location, the inspector
characterized the passageway as a walkway which provided
access to the conveyor and associated equipment, as well as
certain removable conveyor inspection and service plates.
Although the inspector conceded that the cited area was not
frequently travelled and was rather isolated, he confirmed

1003

that a serviceman would be in the area at least once during
each shift.to service the conveyor and other equipment.
Quarry superintendent Bales testified that the No. 3 conveyor walkway was used as a means of access to the conveyor
for maintenance or servicing, as well as for routine cleaning
of the walkway. As for the leaf conveyor, he confirmed that
while no one would normally use the passageway or walkway as a
means of travel to another workplace, service personnel would
have occasion to be in the area for routine cleanup or maintenance work.
Respondent's reliance on the Allied Chemical Corporation
decision, 2 FMSHRC 950 (April 1980), is not well-taken. In
that case, the operator was cited with a violation of mandatory safety standard section 56.11-1, which required that a
safe means of access be provided and maintained to all working
places. The violation was issued after an inspector found an
accumulation of muck on a platform. Former Commission Judge
Forrest Stewart vacated the citation after finding that the
record did not establish that the platform was a "working
place" with the definition of that term pursuant to section
56.2, because there was no evidence that any work was being
performed, had ever been performed in the past or would be
performed in the future, while the accumulation was present.
Judge Stewart observed that the cited standard was not a housekeeping standard, but one requiring safe access to places
where work is being performed.
The Standard Slag Company decision, 2 FMSHRC 3312, 3324
(November 1980), cited by the respondent, also concerned a
violation of the safe access requirement of section 56.11-1,
and I vacated the citation after finding that a cited catwalk
and platform under a conveyor was not a "working place" within
the definition found in section 56.2. The Magma Copper Company
case cited by the respondent, 1 FMSHRC 837, 856 (July 1979),
concerned a violation of section 57.11-12, which required that
openings above, below, or near travelways be protected by
barriers.
I vacated the citation after finding that an elevated platform located 100 feet off the ground, and which was
used infrequently, was not a travelway within the meaning of
the cited standard or the section 57.2 definition of that term.
In the instant case, the respondent is dharged with a
violation of the housekeeping requirements of section
56.20003(a) which required passageways to be kept clean and
orderly.
It is not charged with a failure to provide a safe
means of access to a working place. Further, the fact that
clean-up of the conveyor adjacent to the cited passageway was

1004

a regular part of the respondent's maintenance effort is only
relevant insofar as the negligence and gravity connected with
the violation is concerned.
It may not serve as an absolute
defense in a situation where the inspector finds an accumulation of rock and materials which may pose a hazard to anyone
walking along the conveyor passageway. The presence of such
accumulations do not comply with the requirement that such
areas be kept clean.
The respondent has not rebutted the fact that the cited
accumulations of rock materials were in fact found by the
inspector along the cited conveyor walkway or passageway in
question, nor has it rebutted the existence of the steel
inspection plates, wood, and other materials such as cans of
lubricant on the walkway on the location of the leaf conveyor.
The cited standard section 30 C.F.R. § 56.20003(a), requires
that such areas be kept clean. Given ~he existence of the
materials found by the inspector, I conclude and find that the
cited areas were not maintained in a clean condition as
required by the cited standard, and that the failure by the
respondent to keep these areas clean constituted violations of
the standard. Further, I reject the respondent's arguments
that the cited areas were not passageways. To the contrary,
regardless of whether they are characterized as "passageways"
or "walkways," the facts here establish that the cited locations provided a means or travel, access, and passage to and
from the cited areas by mine personnel who would have a need
to be there for service, maintenance, or cleanup work.
Accordingly, the citations ARE AFFIRMED.
Citation No. 2870015 - 30 C.F.R. § 56.20003
This citation was issued on March 24, 1987, after the
inspector found some oil spillage on the floor area at the
primary crusher hydraulic control center. He characterized
the spillage as "combustible," and stated that it was large
enough to cover the floor areas used as a passageway. The
inspector stated that the spillage was "not removed in a
timely manner, or controlled to prevent a fire hazard," and he
cited a violation of mandatory standard section 56.4102, which
provides as follows:
Flammable or combustible liquid spillage or
leakage shall be removed in a timely manner or
controlled to prevent a fire hazard.
The citation was subsequently modified on May 11, 1987,
and it was served on tha respondent. The modified citation

1005

deleted any reference to section 56.4102, and charged a violation of the housekeeping requirements of section 56.20003,
which provides as follows:
At all mining operations-(a) Workplaces, passageways, storerooms,
and service rooms shall be kept clean and
orderly;
Cb> The floor of every workplace shall be
maintained in a clean and, so far as possible,
dry condition. Where wet processes are used,
drainage shall be maintained, and false floors,
platforms, mats, or other dry standing places
shall be provided where practicable; and
Cc) Every floor, working place, and
passageway shall be kept free from protruding
nails, splinters, holes, or loose boards, as
practicable.
In addition to the change in the referenced standard
allegedly violated, the cited condition or practice was modified to read as follows:
The floor at lower level of the primary
crusher work area was not maintained in a clean
and dry condition. The hydraulic oil spillage
and leakage at the hydraulic control center
covered the floor area used as a passageway.
Inspector Smiser confirmed that the modification was made
by his supervisor Russell Smith because Mr. Smith made a determination that the hydraulic oil spill was not combustible as
Mr. Smiser originally had believed.
In its posthearing brief, the respondent argues that the
amended citation is procedurally defective because MSHA failed
to provide the respondent with an opportunity for a conference
with its district manager after the modification of the citation, and that the inspector was not made available to the
respondent for a post-inspection conference to discuss the
amended citation. Although the citation was issued under the
same number as the original citation, the respondent takes the
position that it was in fact a new citation citing a new standard, and that it required a notification to the respondent of
its right to ~ conference on the newly amended citation.

1006

The respondent concedes that it was af f~rded a conference
with the district manager on the original Citation. However,
it takes the position that to change a citation from a flammable liquid to a housekeeping violation because evidence submitted by the respondent during the conference proved the
inspector wrong with respect to the question of the combustibility of the oil spillage is an abuse of MSHA's discretion.
Citing the decision in Standard Slag Company, 2 FMSHRC 3312,
3322-3323 (November 1980), and El Paso Rock Quarries, Inc.,
1 FMSHRC 35, 38 (~anuary 1981), the respondent asserts that
MSHA has not always been allowed the discretion to modify citations once they are written.
In the Standard Slag Company case, I rejected MSHA's
attempts to amend its civil penalty proposal to alternatively
charge an operator with a violation of a standard different
from the one originally charged. The facts in that c~se
reflect that MSHA's attempts to amend the citation came after
the trial of the case after all of the evidence was in, and it
took the form of a motion filed by MSHA as part of its posthearing arguments.
In the El Paso Rock Quarries case, the
Commission affirmed the trial ruling of a judge who denied
MSHA's request at the opening of the hearing to amend a citation to reflect a change in t~e originally cited standard.
The Commission held that "Granting or denying amendments is
largely a discretionary matter with the judge," and it found
no abuse of discretion, even though it may nave ruled differently as an initial matter.
The facts in the instant case are clearly distinguishable
from those in Standard Slag and El Paso Quarries. In the case
at hand, the original citation was amended and modified prior
to the filing of the case with the Commission. A copy of the
modified citation was served on the respondent, and the respondent has had its day in court and has been given a full opportunity to present its defense. Further, there is no evidence
in this case that the respondent ever requested a conference
with MSHA on the newly amended citation. While it is true
that 30 C.F.R. § 100.6, provides an opportunity to a mine operator to request a conference upon notice from MSHA, I note
that the granting of such conferences is within MSHA's sole
discretion. In any event, I find no basis for concluding that
the respondent has been prejudiced by MSHA's failure to notify
it of its right to a conference or because a conference was
not held. The respondent has had a full opportunity to be
heard on the merits of the alleged violation during the hearing on the contested citation, inclJding its right to confront
and cross-examine the inspector, and to present its testimony

1007

and evidence in defense of the citation. Under the circumstances, the respondent's assertion that the contested modified citation was procedurally defectiv~ IS REJECTED.
With regard to the merits of the citation, the respondent
argues that the cited location was not a "passageway," and it
cites the testimony of Inspector Smiser who indicated that
once an employee goes into this area the only way out is the
way he or she came in, and that it would be unlikely for
employees in casual travel through the plant area to use this
"passageway." Respondent also cites the testimony of
Mr. Bales who indicated that the access to this area leads
nowhere and there would be no need for people to walk this
area during the course of their daily travel in the plant.
For the reasons stated in my previous findings concerning
Citation Nos. 2870013 and 2870016, the respondent's "passageway" arguments are rejected. The respondent has tacitly
admitted that the cited location provided an access route to
the crusher unit, and Inspector Smiser testified that service
personnel were in the area periodically to check the hydraulic
oil used for the crusher. Mr. Bales confirmed that people
would be in the area to perform maintenance work, and that a
lubrication pump in the area periodically presented known
leakage problems which required a bucket to be kept under the
pump to prevent leakage onto the walkway floor. Further, the
placement of wooden planks and "soakum" material in the area
in an effort to alleviate the leakage problems supports a
reasonable conclusion that pe.csonnel had a need to be in the
area to perform work. Under these circumstances, it seems
clear to me that the cited location was not only a passageway
providing access to the area, but was also a workplace area
which was required to be kept clean. The respondent has not
rebutted the existence of the oil spillage and leakage as
described by the inspector, and the placement of planks, and
the use of "soakum" and a bucket reasonably suggest that the
spillage covering the cited area was more than "a film of oil"
as suggested by Mr. Bales. Since the area was not kept clean
and dry as required by the standard, I conclude and find that
a violation has been established, and the citation IS AFFIRMED.
Citation No. 2870742 -

30 C.F.R. § 56.6112

The inspector issued this citation after finding that the
burning rate of the safety fuse used at the quarry for biasting purposes was not measured, posted conspicuously, or
brought to the attention of mine personnel engaged in blasting
activities. He cited an alleged violation of mandatory safety
standard section 56.6112, which provides as follows:

1008

The burning rate of the safety fuse in use at
any time shall be measured, posted in conspicuous locations, and brought to the attention of
all persons concerned with blasting.
Inspector Smiser confirmed that he issued the citation
because he believed that the posted fuse burning rate was outdated and at least 2 years old. However, he conceded that the
cited standard does not include any dating requirements for
determining the fuse burning rate, and the credible evidence
produced by the respondent, including the inspector's own
admissions, reflects that the respondent did in fact comply
with the standard by measuring the burning rate of its fuses,
posting the results in a conspicuous place, and bringing it to
the attention of personnel engaged in blasting. Respondent's
evidence also established that all certified blasters were
instructed in the proper use and handling of explosives, and
that all fuses were properly tested and the fuse burning rates
posted as necessary. Under all of these circumstances, I
agree with the respondent's posthearing arguments in defense
of this citation, and I conclude and find that MSHA has
advanced no probative credible evidence to support a violation.
Accordingly, the citation IS 'i/ACA'rED.
Citation No. 2870741 - 30 C.F.R. § 56.11012
The inspector issued this citation after finding that an
opening at the end of a travelway alongside an inclined conveyor located between the cement processing building and a
clinker storage area was unguarded and had no barrier to prevent anyone from stepping or falling off the end into the
clinker storage area below. Mr. Smiser further described the
location of the unguarded area as the north side of the conveyor where it entered the enclosed building for a short distance around the conveyor head pulley. He cited a violation,
of mandatory standard section 56.11012, which provides as
follows:
Openings above, below, or near travelways
through which persons or materials may fall
shall be protected by railings, barriers, or
covers. Where it is impractical to install
such protective devices, adequate warning
signals shall be installed.
Section 5.62 defines a "travelway" as "a passage, walk or
way regularly used and designated for persons to go from one
place to another."

1009

In its posthearing brief, the respondent asserts that
Inspector Smiser's inaccurate testimony regarding the location
of the unguarded conveyor location in question should render
the citation null and void. This defense is rejected.
Although the inspector's testimony may have been imprecise, it
seems clear to me from the testimony of both Mr. Lloyd and
Mr. McCormac that they were clearly aware of the cited location which the inspector had in mind when he issued the citation. During his video presentation, Mr. Lloyd described the
cited location, and Mr. McCorrnac also pinpointed the area and
confirmed that the inspector was concerned about the "opening
at the end of the conveyor" where two chains were installed as
a barrier, but not hooked up. When asked whether this was the
location referred to in the citation, Mr. McCorrnac replied
"yes sir" (Tr. 87). Inspector Smiser in turn confirmed that
this was the area he cited (Tr. 88). Further, Mr. McCormac
testified that he was with the inspector during his inspection, agreed that there was an opening beyond the location of
the chain, and confirmed the cited condition did in fact exist
(Tr. 95-97; 106).
Respondent further argues that the cited location was not
a "travelway" within the definition found in section 56.2, in
that it was not regularly used as a means of access in the
normal course of travel through the plant area, and was not
used for normal maintenance purposes. Respondent's witness
Lloyd characterized the cited location as a seldom used "platform" area providing access to a gate system used for freeing
up any blocked material. When this is done, an employee would
use a safety line or belt attached to the handrailing which
was installed around the perimeter of the platform. Mr. Lloyd
also confirmed that the area is not used for routine inspections or maintenance, and once reaching the end of the platform, one would have to turn around and go back.
Mr. Lloyd confirmed that the platform was originally constructed a few years ago when there was an electrical problem,
and that the chain was installed as a means of a safety
barrier in the event one needed to stand on the platform with
a pole to free up any material blockage. Mr. McCormac also
saw a chain at the cited location, was surprised that it was
not hooked up, and he surmised that the citation was issued
because the chain was not hooked up. The inspector could not
recall any chain in place, and he did not have his inspector's
notes with him. Although he confirmed that the citation was
abated after a barrier was installed, he did not elaborate
further as to the type of barrier which was installed, and the

1010

termination. notice issued to abate the citation provides no
further information in this regard.
The video tape taken for demonstration purposes during
the hearing clearly depicted the installation of two chains
across the opening which concerned the inspector, and I find
the testimony of Mr. McCormac and Mr. Lloyd with respect to
the presence of the chains at the time of the inspection to be
credible.
I further find Mr. McCormac's conclusion that the
inspector probably issued the citation because the chains were
not up at the time of his inspection to also be credible.
Since the chains were not up and stretched across the opening
of the platform at the time of the inspection, one can reasonably conclude that no barrier was provided at that time as a
means of protection to prevent one from going off the end of
the platform. Assuming that the cited opening was near a
travelway as stated in section 56.11012, and as that term is
defined by section 5.62, I would affirm the citation based in
the undisputed fact that the opening in question was not protected by the chain which was not in place across that opening.
However, the critical question here is whether or not the
cited location was in fact a "travelway."
Inspector Smiser described the cited location as "small,
with a little walking area," and he characterized it as an
"open-ended travelway" and "open-ending walkway" (Tr. 23-24).
He surmised that a serviceman would "probably" be in the area,
and "guessed" that he would be within the "slipping area" and
could fall through the opening in the course of any "normal
work" performed in the area. He also surmised that a serviceman would "probably" be the one in this area for purposes of
servicing the head conveyor head pulley and associated parts
(Tr. 24-26). However, I find no credible evidence to support
the inspector's conclusions that any work would be routinely
performed at the cited location, and he apparently made no
effort to contact any maintenance personnel to confirm that
anyone was required to be in the area for the purposes of
maintenance. As a matter of fact, he conceded that he based
his "low negligence" finding on the fact that the respondent
had not previously discovered the opening or that there was a
problem in that area (Tr. 26).
Inspector Smiser confirmed that with the exception of
doing work in the cited area, which he clearly did not determine as a fact, it was unlikely that anyone would use the
"walkway" in question as a means of getting from one point to
another. He confirmed that anyone venturing into the area
would have to turn around and come back once reaching the end,
that it was possible that any foot traffic in the area was

1011

extremely infrequent, and that it was further possible that
the reason the respondent did not discover the unprotected
area could have been based on the fact that no work had been
done in the area for weeks or months (Tr. 46). Although he
later contradicted this testimony by stating that he would be
surprised if there was no one there at least once a shift, I
find no credible evidence to support this speculative
conclusion.
The facts presented with respect to this citation are
strikingly similar to those presented in a prior case in which
an inspector issued a citation for a violation of section
57.11-12, which contained language identical to that found in
section 56.11012. See: Secretary of Labor v. Magma Copper
Company, 1 FMSHRC 837, 856-858 (July 1979). In that case the
inspector issued a citation after finding that a chain guard
which had been installed at the end of a work deck or platform
was not hooked across the opening to prevent anyone from falling off the end. I vacated the citation after finding that
the evidence did not establish that the infrequently travelled
area in question was in fact a travelway within the meaning of
the cited standard, or within he meaning of the definition of
that term as found in section 57.2, which is identical to that
found in section 56.2. In vacating the citation, I made the
following observations at 1 FMSHRC 857-858:
I believe the intent of the standard is to protect miners, who on a regular and frequent
basis, use designated travelways for movement
to and from their regular duty stations or who
use such travelways on a regular basis while
moving in and about the mine. The facts on
which this citation was issued suggest the
inspector sought to protect someone working on
the platform from falling through the unchained
opening. Even so, the standard cited does not
lend itself to the factual setting which prevailed on the day the citation issued. The
standard required railings, barriers, or covers,
and I fail to understand how a hooked chain can
be considered as such. In the circumstances, it
would appear that the standard is intended to
apply to a working place rather than to a travelway, notwithstanding petitioner's assertion at
page 6 of its brief that the use of a chain
establishes an inference that an opening some
100 feet in the air at the edge of a platform is
a travelway.

1012

* * * If the Secretary desires to afford protection to persons working on elevated platforms,
he should promulgate a safety standard covering
such situations rather than attempting to rely
on a loosely worded and vague standard. It
seems to me that the inclusion of the term
"working place" as part of section 57.11-2 would
cure the problem that I have with language which
I believe simply does not fit the facts
presented.
In view of the foregoing, and on the facts presented in
this case, I cannot conclude that the petitioner has established through any probative credible evidence that the cited
location in question was near a travelway within the def inition of that term found in section 5.62. Accordingly, I find
no basis for finding a violation, and the citation IS VACATED.
The Significant and Substantial Violations Issue
A "significant and substantial" violation is described
in section 104(d)(l) of the Mine Act as a violation "of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. § 814(d)(l). A violation is properly
designated significant and substantial "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co., 3 FMSHRC 822,
825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety-contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury
in ~uestion will be of a reasonably serious
nature.

1013

In United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129, the Commission stated further as follows:
we have explained further that the third
element of the Mathies formula "requires that
the Secretary establish a reasonable likelihood
that the hazard contributed to will result in
an event in which there is an injury." U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance
with the language of section 104(d)(l), it is
the contribution of a violation to the cause
and effect of a hazard that must be significant
and substantial. U.S. Steel Mining Company,
Inc., 6 FMSHRC 1866, 1868 (August 1984): U.S.
S"teel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988): Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
With regard to Citation No. 2870013, Inspector Smiser
testified that while it was unlikely that someone walking along
the conveyor walkway in question would fall off to the area
below if he were to trip or stumble on the accumulated rock and
material, the accumulations did present a tripping or falling
hazard, and that it was reasonably likely that in the event of
a fall, the individual could sustain a back injury or broken
limbs. If it were a serviceman who regularly walked the area,
he would more than likely be carrying a grease gun or other
equipment in one hand, thus increasing the likely of an injury
if he were to fall or trip on the accumulations of materials
which ranged in size from three-quarters of an inch to an inch
and a half, and which completely covered the walkway surface
and ran over the kickplate.
The respondent takes the position that the violation was
not significant and substantial. In support of this conclusion, it relies on the testimony of Mr. Bales who indicated
that any work being performed on the conveyor would only be
done after the area was cleaned up, that no employees used the
walkway as a regular of means of travel from one quarry location to another, that most of the conveyor rollers can be
greased from hose fittings which hung down to ground level,

1014

and that in. the past 10 years there have been no reported accidents or injuries at the quarry.
Mr. Bales confirmed that the conveyor operated 8 hours a
day, 5 days a week, and that the walkway where the inspector
found the accumulations of rock and materials allowed access
to the conveyor for maintenance purposes. Although Mr. Bales
indicated that most of the conveyor rollers were serviced from
ground level, it was altogether possible that some were not,
and the inspector determined that a serviceman inspecting the
conveyor regularly travelled the walkway and would be exposed
to a tripping or falling hazard. Under the circumstances, I
agree with his finding that the cited violation was significant and substantial. Given the extent of the accumulations
on the inclined conveyor walkway, and the fact that the conveyor would be operating all day, I believe that one may reasonably conclude that at least one person who would be
travelling the walkway while inspecting the conveyor would be
exposed to a tripping or slipping hazard, and if he were to
trip or fall, it would be reasonably likely that he would
suffer injuries of a reasonable serious nature. Accordingly,
the inspector's "S&S" finding IS AFFIRMED.
With regard to housekeeping Citation No. 2870015, concerning the fluid spill in the concrete floor area in the crusher
plant, I take note of the fact that MSHA's district manager
modified the citation because of his apparent conclusion that
the fluid was not combustible. Under the circumstances, I
conclude and find that the fluid did not present a fire hazard.
Inspector Smiser was concerned over a probable slip and fall
hazard to a serviceman who he believed would be in the area to
check out the crusher unit. However, the evidence establishes
that the respondent had installed wooden planks and used an
absorbent material in efforts to control the spillage caused
by a known problem, and that the floor area in question was
surrounded by handrails. Although the citation stated that
the spill was large enough to cover the floor area, there is
no evidence that it covered the floor planks, and Inspector
Smiser conceded that the respondent installed the planks and
used the absorbent material in an effort to provide safe
access to the cited area in question. Mr. Bales confirmed
that the spill would never run over the wooden planks. Under
all of these circumstances, I conclude and find that a slip or
fall would be unlikely, and the inspector's "S&S" finding IS
VACATED.
With regard to Citation No. 2870016, Inspector Smiser
testified that the existence of steel plates, stac~ed on top
of each other in a "tipping" manner, and located at the top of

1015

a staircase leading to a walkway, obstructed access to the
area in that one had to step on the plates to proceed along
the walkway. He also found wood and other materials such as
lubricant cans on the walkway, and he concluded that all of
these materials posed a slipping and falling hazard to a
serviceman who would likely be using the walkway to gain
access to the equipment at least once a shift. The inspector
concluded that it was reasonably likely that injuries of a
reasonable serious nature would result in the event someone
slipped or fell while stepping over the accumulated materials
in question. The respondent has advanced no credible evidence
to rebut the inspector's findings, and I agree with his conclusion that the violation was significant and substantial.
Accordingly, his "S&S" finding IS AFFIRMED.
Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in Business
Based on the stipulations by the parties, I conclude that
the respondent, as a corporate operator, is a large mine operator, and that the mine in question was medium in size and
scope. The parties stipulated that the payment of civil penalties for the violations in question will not adversely
affect the respondent's ability to continue in business.
History of Prior Violations
The parties stipulated that the respondent's history of
prior violations consists of 10 citations issued over 40
inspection days during the 24-month period preceding the
inspection conducted by Inspector Smiser. I conclude and find
that the respondent has a relatively good compliance record
which does not warrant any additional increases in the civil
penalties which have been assessed by me for the violations
which have been affirmed.
Good Faith Compliance
I conclude and find that the respondent exercised good
faith in timely abating all of the violations which have been
affirmed in this proceeding.
Negligence
I conclude and find that all of the violations which
have been affirmed resulted from the respondent's failure to
exercise reasonable care, and that they all resulted from
ordinary negligence on the respondent's part.

1016

Gravity
I conclude and find that Citation No. 2870015 concerning
the fluid spillage on the floor of the crusher plant was
non-serious. For the reasons stated in my "S&S" findings, I
further conclude and find that Citation Nos. 2870013 and
2870016, concerning slip and fall hazards, were serious
violations.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llOCi) of
the Act, I conclude that the following civil penalty assessments are reasonable and appropriate for the violations which
have been affirmed:
Citation No.

Date

2870013
2870015
2870016

03/24/87
03/24/87
03/24/87

30 C.F.R. Section
56.20003(a)
56.20003
56.20003Ca)

Assessment
$ 91
$ 35
$ 79

ORDER
The respondent IS ORDERED to pay the civil penalty assessments in question to MSHA within thirty (30) days of the date
of this decision, and upon receipt of payment, this proceeding
is dismissed.
Citation No. 2870742, March 24, 1987, citing a violation
of 30 C.F.R. § 56.6112, and Citation No. 2870741, March 25,
1987, citing a violation of 30 C.F.R. § 56.11012, ARE VACATED.

b.K~~
Administrative Law Judge

1017

Distribution:
Michael Olvera, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Mr. Robert McCormac, Industrial Relations Manager, Blue Circle
Inc., 2609 North 145th East Avenue, Tulsa, OK 74116 (Certified
Mail)
/fb

1018

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

AUG 9 1988
GERARD SAPUNARICH,
Complainant

DISCRIMINATION PROCEEDING

.

v.
LEHIGH PORTLAND CEMENT, CO.,
Respondent

...

Docket No. YORK 88-29-n~
MD 87-56
Cementon Plant and Quarry

DECISION
Before:

Judge Melick

This case is before me upon the Complaint by Gerard
Sapunarich under section 105(c)(3) of the Federal Mine Sa~ety
and Health Act of 1977, 30 u.s.c. § 801 et seg., the "Act,"
alleging that he was suspended from his job without pay by
Lehigh Portland Cement, Co., (Lehigh) in violation of section
lOSCc)(l) of the Act.~/

1/

Section 105(c)(l) of the Act provides as follows:
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 notifyi11g 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 representative of miners or applicant
for employment has instituted or caused to be
instituted any proceedings 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.

1019

In particular Mr. Sapunarich alleges that he was the
Miner Safety Representative during relevant times and that in
that capacity reported various health and safety violations
from February 3, 1983, through September 11, 1987, to both
officials of the Federal Mine Safety and Health
Administration CMSHA) and of the mine operator. He alleges
in his initial complaint that "on Friday, September 11, 1987,
John Jones [plant manager] and I had a very heated discussion
in the Control Room about the dust problem in the dust
building that was still going on from the previous day. As a
result I have been written up for insubordination and it was
put in my file, also I have been suspended without pay. 11
In a combined Answer and Motion for Summary Decision
Lehigh maintained as follows:
••• Mr. Sapunarich's suspension was in no way
motivated by his complaints about the dust
situation. The action was taken in response to the
threats and use of abusive language by
Mr. Sapunarich.
The situation about which Mr. Sapunarich was
complaining on the morning of September 10, 1987,
was already being addressed by the Company at the
time the complaint was made. The action which Mr.
Sapunarich "threatened" - D.E.C. - had already
been taken by the Company. Clearly, there was no
reason to discipline Mr. Sapunarich for proposing
to take action which the Company had already taken.
The disciplinary action was directed at the
threatening and abusive language used by
Mr. Sapunarich. Such threats and abusive language
are not protected activity. Thus, the action was
lawful and non-discriminatory.
Under Commission Rule 64, 29 C.F.R. § 2700.64, a Motion
for Summary Decision shall be granted only if the entire
record, including the pleadings, depositions, answers to
interrogatories, admissions and affidavits shows: Cl> that
there is no genuine issue as to any material facts; and (2)
that the moving party is entitled to swnmary decision as a
matter of law.

1020

In establishing a prima facie case of discrimination
under section lOS(c)(l) of the Act the complainant must prove
that (1) he engaged in a protected activity, and (2) the
adverse action complained of was motivated in any part by
that· activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800, (1980),
rev'd on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf
of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18,
(1981). The operator may rebut the prima facie case by
showing either that no protected activity occurred _or that
the adverse action was not motivated in any part by protected
activity. If an operator cannot rebut the prima facie case
in this manner, it nevertheless may defend affirmatively by
proving that Cl) it was also motivated by the miner's
unprotected activities, and (2) it would have taken the
adverse action in any event for the unprotected activities
alone. The operator bears the burden of proof with regard to
the affirmative defense. Haro v. Magma Copper Co., 4 FMSHRC
1935, 1936-38, (1982).
In support of its Motion for Summary Decision, Lehigh
asserts that the alleged disciplinary action taken against
Mr. Sapunarich was motivated solely by his non-protected
activities. Mr. Sapunarich, on the other hand, maintains
that the alleged disciplinary action was indeed motivated by
his protected activities. There clearly remains then a
genuine issue concerning a material fact in this case (i.e.
the motivation for the alleged disciplinary action) and,
accordingly, the Motion for Summary Decision cannot be
granted. 29 C.F.R. § 2700.64.
ORDER
The Motion for Summary Decision filed by Lehigh Portland
Cement Company is denied. The hearings scheduled in this
case to commence on August 31, 1988, will accordingly proceed
as scheduled. The parties are advised that these hearings
are de novo and that any evidence to be considered by the
undersigned, both testimonial and docume tary, must be
proffered during those proceedin s.

1021

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

AUG 121988
DISCRIMINATION PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
on behalf of
ELLIOTT ROWE, JR.,
AGNEL AMBURGEY',
EVERETT WATKINS,
EDSEL BAKER,
CALVIN BAKER,
Complainants

Docket No. KENT 88-57-D
BARB CD 87-46
Docket No. KENT 88-58-D
BARB CD 87-47
Docket No. KENT 88-59-D
BARB CD 87-48
Docket No. KENT 88-60-D
BARB CD 87-50

v.
JOHNSON COAL COMPANY,
INCORPORATED,
Respondent

Docket No. KENT 88-61-D
BARB CD 87-49
No. 11 Mine

ORDER OF DISMISSAL
Appearances:

Before:

Michael L. Roden, Esq., Office of the
Solicitor, U.S. Department of Labor for
Complainants;
Paul R. Collins, Esq., Nancy M. Collins, Esq.,
Hollon, Hollon, Hollon, Hazard, Kentucky;
Tony Oppegard, Esq., Appalachian Research and
Defense Fund of Kentucky, Hazard, Kentucky,
Intervenor.

Judge Melick

The Complainants herein have, in substance, requested
approval to withdraw their respective complaints in the
captioned cases for the reason that they have reached agreed
settlements. Under the circumstances h ein, permission to
withdraw is granted.
29 C.F.R. § 2700.
These
therefore dismissed.

i)
I

t

I

G~ry
Admin
(703)

1022

Distribution:
Michael L. Roden, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail)
Paul R. Collins, Esq., Nancy M. Collins, Esq., Hollon,
Hollon, & Hollan, P.O. Drawer 779, Hazard, KY 41701
(Certified Mail)
Tony Oppegard, Esq., Appalachian Research and Defense Fund of
Kentucky, P.O. Box 360, Hazard, KY 41701 (Certified Mail)
nt

1023

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

AUG 161988
JOSEPH STORA,
- Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. WEVA 88-96-D
MORG CD 88-4

SOUTHERN OHIO COAL COMPANY,
Respondent

Raccoon No. 3 Mine
DECISION

Before:

Judge Maurer

On October 27, 1987, the Complainant, Joseph Stora, filed a
complaint of discrimination under section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~
(hereinafter referred to as the "Act") with the Secretary of
Labor, Mine Safety and Health Administration (MSHA) against the
Southern Ohio Coal Company (SOCCO). That complaint was denied
by MSHA and Mr. Stora thereafter filed a complaint of
discrimination with the Commission on his own behalf under
section 105 (c)(3) of the Act. Mr. Stora alleges that he was
discriminated against in violation of section 105(c) of the Act
because he was discharged on August 28, 1987, by SOCCO for
proceeding under unsupported top while other persons are known
by management to go out under unsupported top and are not
discharged. He goes on to state that the other reason he was
given for his discharge was a "continuous pattern of
unsatisfactory work." He admits proceeding under the unsupported
roof on the cited occasion but denies the "continuous pattern of
unsatisfactory work."
SOCCO, by counsel, has moved to dismiss the subject
complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure for failure to state a claim upon which relief can be
granted under section 105(c) of the Act. On June 22, 1988, an
ORDER TO SHOW CAUSE was issued by the undersigned wherein the
Complainant was ordered to show cause within fifteen (15) days as
to why this proceeding should not be dismissed for "failure to
state a claim for which ~elief can be granted under section
105(c)(l) of the Act." There has been no response received to
date.
For the purposes of ruling on SOCCO's motion to dismiss,
the well pleaded material allegations of the complaint are taken
as admitted.
2A Moore's Federal Practice ~12.08. A complaint
should not be dismissed for insufficiency unless it appears to a
certainty that the complainant is entitled to no relief under any

1024

state of facts.which could be proved in support of a claim.
Pleadings are, moreover, to be liberally construed and mere
vagueness or lack of detail is not grounds for a motion to
dismiss.
Id.
Section 105(c)(l) of the Act provides as follows:
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
representative of miners or applicant for employment
has instituted or caused to be instituted any proceedings 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.
In order to establish a prima facie violation of
section 105(c)(l) the Complainant must prove that he engaged
in an activity protected by that section and that his
discharge was motivated in any part by that protected
activity. Secretary ex. rel. David Pasula v. Consolidation
Coal Company, 2 FMSHRC 2786 (1980) rev'd on other grounds,
sub nom, Consolidation Coal Company v. Secretary, 633 F 2d.
1211C3rd Cir. 1981). In this case, Mr. Stora asserts that he was
discharged for going beyond supported top while other persons are
known by management to have engaged in similar unsupported top
infractions and were not discharged. Assuming that this
allegation is true, it is clearly not sufficient to create a
claim under section 105(c)(l) of the Act. That sectiou does not
provide a remedy for what the Complainant perceives to be
"discrimination" but what is in reality, at best, unfairness or
inequitable treatment; if that conduct on the part of the
operator was not caused in any part by an activity protected by
the Act. Violating the federal mining regulations is not
activity protected by the Act. Tharefore, I find that the
complaint herein fails to state a claim for which relief can be

1025

granted under section lOSCc>Cl) of the Act, and this case is
therefore dismissed.

Distribution:
Mr. Joseph Stora, 271 Highway 7, Powhatan Pt., OH 43942
(Certified Mail)
David A. Laing, Esq., Porter, Wright, Morris & Arthur, 41 South
High Street, Columbus, OH 43215 (Certified Mail)
kg

1026

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

AUG 171988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDINGS

.

Docket No. CENT 88-4-M
A.C. No. 23-00188-05524
Docket No. CENT 88-5-M
A.C. No. 23-00188-05525

RIVER CEMENT COMPANY,
Respondent

Docket No. CENT 88-6-M
A.C. No. 23-00188-05526
Selma Plant Quarry and Mill
DECISION
Appearances:

Before:

Tobias B. Fritz, Esq., U.S. Department of Labor,
Office of the Solicitor, Kansas City, Missouri,
for the Petitioner~ Bradley s. Hiles, Esq., and,
JoAnne Levy Saboeiro, Esq., Peper, Martin, Jensen,
Maichel and Hetlage, St. Louis, Missouri, for the
Respondent

Judge Maurer
STATEMENT OF THE CASE

These civil penalty proceedings concern proposals for
assessment of civil penalties filed by the petitioner against the
respondent pursuant to section llOCa> of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 820(a). The petitioner
initially sought civil penalty assessments for five alleged
violations of certain mandatory safety standards found in Part 56
of Title 30, Code of Federal Regulations.
Pursuant to notice, the cases were heard in St. Louis,
Missouri on March 29, 1988. At the beginning of that hearing, I
approved the vacation by the petitioner of Citation No. 2870962
and the settlement without reduction in penalty of Citation No.
2870467. That left one§ 104(a) citation remaining in each of
the three above-styled cases to be heard and decided. The
parties filed post-hearing arguments and proposed findings which
I have considered in the course of making and writing this
decision.

1027

STIPULATIONS
The parties stipulated to the following:
1. Respondent is subject to the Federal Mine Safety and
Health Act of 1977.
2. Respondent operates the Selma Plant Quarry and Mill,
where 347,550 hours were worked during calendar year 1986.
3. Respondent has paid 14 violations in 99 inspection days
in the 24-month period preceeding February 1987.
4. Respondent would not be adversely affected by the
payment of the proposed civil penalties.
ISSUES
The primary issues presented are: (1) whether the conditions
or practices cited constitute violations of the cited mandatory
standards, and (2) the appropriate civil penalties to be assessed
for the violations, should any be found, taking into account the
statutory civil penalty criteria found in section llOCi) of the
Act.
DISCUSSION WITH FINDINGS
I.

DOCKET NO. CENT 88-4-M

Section 104{a) Citation No. 2870494, which is the subject of
this proceeding, was issued by an MSHA inspector on February 26,
1987. The citation alleges a violation of the mandatory safety
standard found at 30 C.F.R. § 56.9087 and the condition or
practice alleged by the inspector to be a violation of that
standard states as follows:
The Bobcat FEL *1187 was not equipped with a reverse
signal alarm. This loader has restricted view to the
rear and operates in the entire mill area. The vehicle
was not being used on this shift.
30 C.F.R. § 56.9087 provides in its entirety as follows:
Heavy duty mobile equipment shall be provided with
audible warning devices. When the operator of such
equipment has an obstructed view to the rear, the
equipment shall have either an aucomatic reverse signal
alarm which is audible above the surrounding noise
level or an observe.c to signal when it is safe to back
up.

1028

Respondent admitted that the front end loader, nwnber 1187,
was not equipped with an operational automatic reverse signal
alarm on February 26, 1987, and that the equipment was available
for use by its employees on that date.
At the conclusion of the Secretary's case, I granted
respondent's motion to vacate the citation and dismiss the case
based on the fact that the Secretary had not proffered any
evidence that the Bobcat was operated in violation of the cited
standard on February 26, 1987, or indeed any other prior date
certain.
Since the citation did not specifically allege any other
prior date, I found the relevant date to be February 26, 1987, as
that was the date contained in Section I-Violation Data on
Petitioner's Exhibit No. 1, which is Citation No. 2870494.
Therefore, I held that the Secretary must prove that the
violations occurred on that date, which she could not do.
In
fact, at the close of the Secretary's case concerning this
citation, it became evident that she could not prove that a
violation of the cited standard occurred on any particular day,
before, on or even after February 26, 1987.
The cited standard gives the operator the option to operate
the equipment without an automatic reverse signal alarm if they
utilize an observer to signal when it is safe to back up. When
Inspector Ryan testified he was asked what the basis was for his
belief that the operator had used this equipment without an
observer. He replied "[a]t this time, sir, the best thing I can
tell you would be instinct."
The Secretary's next witness, Mr. Wagner, who is a former
employee of the respondent, did better than that, but he too was
unable to identify any specific instance or date when he operated
the Bobcat in violation of the cited standard although he
testified that he had done so many times.
The Secretary argues that at unspecified occasions and times
prior to the date of the citation, the respondent violated the
cited standard because they had a general policy of not providing
an observer while operating the Bobcat in reverse. This argument
overlooks the fact that this particular standard does not speak
to company policy, but rather requires evidence of discrete
violations of its terms, including the alternative method of
compliance.
I have again searched the record herein and am unable to
locate any specific evidence of a date, time and place when the
respondent was in noncompliance with the standard and I find that

1029

in order to have made a prima facie case of a violation the
Secretary must have produced some evidence that the respondent
was operating this equipment without a reverse signal alarm or an
observer at some definite time or at least some date certain. To
hold otherwise would force the respondent to prove the negative,
i.e., that it did not operate the equipment in violation of the
standard on any day since it was first acquired, which was years
before the citation was written. Therefore, I conclude that
Citation No. 2870494 was properly vacated at the close of the
petitioner's evidence pursuant to the Federal Rules of Civil
Procedure (F.R~C.P. 4l(b)).
II.

DOCKET NO. CENT 88-5-M

Section 104.(a) Citation No. 2870470, which is the subject of
this proceeding, was issued on February 25, 1987. The citation
alleges a violation of the mandatory standard found at 30 C.F.R.
§ 56.16003 and the condition or practice alleged by the inspector
to be a violation of that standard states as follows:
A 55 gallon barrel of tannergas was stored alongside
the maintenance shop.

30 C.F.R. § 56.16003 provides in its entirety as follows:
Materials that can create hazards if accidentally
liberated from their containers shall be stored in a
manner that minimizes the dangers.
Inspector Wilson issued the subject citation because he
observed a barrel of tannergas 1/ stored outside the respondent's
maintenance shop and was concerned that there could be an
explosion if fumes got into the shop should there be any
accidental liberation of the substance and ignition from welding
or grinding sparks occurred. He testified that the substance
could be accidentally liberated by a vehicle running into it and
rupturing the drum, or if it was knocked off the rack, its valve
could rupture. He further testified that employees periodically
filling other containers with the tannergas could have incidental
spillage occur.
During cross-examination, however, the inspector was
obviously not very conversant with the particulars of why this
particular storage was hazardous, if it was. He readily admitted
that at the time of his inspectiori, he did not know what
tannergas was, did not physically inspect it, did not know its

l/ Tannergas is a flammable liquid antifreeze used in
compressed air lines.

1030

evaporation rate or indeed even if it existed in vaporous form.
Furthermore, he opined that of all the ways he could possibly
think of for the tannergas to have been accidentally liberated in
its original location all were probably unlikely to occur.
To rebut what nominally could be considered a prima facie
case for a violation of the cited standard, the respondent called
Mr. John Jurgiel, a certified industrial hygienist, as an expert
witness. Mr. Jurgiel agreed with the inspector that based on his
observations of the area where the tannergas was stored at the
time the citation was written, accidental liberation of the
tannergas was unlikely. He further testified that in his
opinion even if a spill occurred outside the shop it was almost
impossible for the tannergas vapors to enter the maintenance
shop, travel the 75 feet to the welding area, and concentrate at
the lower explosive limit of six percent, meaning that the
tannergas vapor must comprise six percent by volume of the air to
be explosive. Mr. Jurgiel therefore concluded that the storage
of the tannergas drum outside the maintenance shop was a "no
hazard" situation, presenting no likelihood of danger to the
health or safety of the employees.
Interestingly, the inspector required and approved an
abatement site for the storage of the tannergas which is contrary
to the instructions on the material safety data sheet (MSDS) for
tannergas. The data sheet specifically states "do not store in
open sunlight." For this reason, Mr. Jurgiel believes that the
original, cited location was better than the abatement site where
the tannergas is now located in the sun, notwithstanding the
contrary warning on the MSDS.
I conclude that the preponderance of reliable, probative
evidence in the record does not establish that the tannergas was
stored in an unsafe manner and to the contrary I find that it was
stored in a manner that minimized the danger of explosion, at
least in comparison to its present, approved location.
Therefore, it follows that I find no violation of the cited
mandatory standard.
III.

DOCKET NO. CENT 88-6-M

Section 104(a) Citation No. 2870466, which is the subject of
this proceeding, was issued on February 24, 1987. The citation
alleges a violation of the mandatory standard found at 30 C.F.R.
§ 56.14045 and the condition or practice alleged by the inspector
to be a violation of that standard states as follows:
Welding operations in the shop were not ventilated.
30 C.F.R. § 56.14045 provides in its entirety as follows:

1031

Welding operations shall be shielded and well
ventilated.
Inspector Wilson personally observed a welding operation in
the respondent's shop on February 24, 1987. He testified he
observed a welder "hard surf acing" a piece of equipment and the
smoke coming off that welding rod was spreading throughout the
shop area. To the best of his recollection, there was no air
movement in the shop at the time this "hard surf ace" welding was
taking place. This condition most likely existed at that time
because all the doors in the maintenance shop were closed and the
ventilation fans were not operating. Subsequent testimony
established that it was company policy on cold days to operate
the ventilation system only intermittently. If someone noticed
welding fumes building up, they would turn on the fans and open
the doors, which was apparently sufficient to dissipate the smoke
and fumes.
This violation, however, is not about the sufficiency of the
ventilation system, which everyone agrees was not even in use at
the time.
Rather, the violation was completed if the inspector
observed even a single discrete welding operation which was not
well ventilated. The uncontradicted evidence is that he in fact
did personally observe such an operation and I find that evidence
to be credible, and entirely consistent with the fact that the
ventilation fans were not in operation and all the doors were
closed. Not an unlikely configuration in February in Missouri,
but nonetheless one that caused a violative accumulation of smoke
and fumes.
Therefore, I find that a violation of 30 C.F.R.
§ 56.14045 has been established, as alleged.

A "significant and substantial" violation is described in
section 104{d){l) of the Act as a violation "of such nature as
could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." A
violation is properly designated significant and substantial "if,
based upon the particular facts surrounding the violation there
exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
(1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984), the Commission
explained its interpretation of the term "significant and
substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of

1032

Labor must· prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a
reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula 'requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury.' U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(l), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1573, 1574-75 (July 1984).
The hazard involved in this particular violation is the
accumulation of unhealthful concentrations of fumes and/or smoke.
The inspector did not have any specific information concerning
actual exposure levels in the shop since he did not collect any
air samples from the respondent's shop. The Secretary also put
on evidence from a health specialist with some knowledge of
welding that chromium, manganese and iron oxide fumes are almost
always present when you have hard surf ace welding going on. He
further testified that beyond some ceiling value (the TLV), these
materials can be harmful. However, he had not analyzed any air
samples pertaining to welding fume concentrations in the
respondent's shop, but rather was testifying in a general manner
about hard surf ace welding and overexposure to hazardous
materials.
Once again, Mr. Jurgiel, an inaustrial hygienist hired by
the respondent, went the extra mile. He collected several air
samples in the shop under conditions simulating the welding
observed by Inspector wilson. More specifically, he arranged to
have an employee hard surface weld continuously for one hour with
the maintenance shoo doors closed and the vantilation fans off.
These air samples w~re than turned over to an accredited
industrial laboratory where chenical analysis showed the exposure
to the potentially hazardous components of the welding rods to be
substantially below the threshold limit values (the TLVs) for
those elements. Mr. Jurgiel therefoce concluded, with some

10 33

scientific .basis, that there was no health hazard posed for the
welder or other persons in the shop, at the concentrations of
smoke and fumes observed by Inspector Wilson.
I find the results of Mr. Jurgiel's air sampling tests and
the subsequent chemical analysis of the air filters by an atomic
absorption spectrophotometer to be credible and therefore
conclude that the violation was not "significant and substantial"
and will affirm the citation on that basis.
CIVIL PENALTY ASSESSMENT
In assessing a civil penalty herein, I find and conclude
that this violation resulted from moderate negligence as marked
on Petitioner's Exhibit No. 8 and that any injury or illness
resulting from this violation was unlikely. I have also
considered all the foregoing findings and conclusions made in the
course of this decision and the requirements of section llOCi) of
the Act.
Under these circumstances, I find that a civil penalty
of $50 is appropriate in this case.
ORDER

1.

Citation No. 2870962 is vacated.

2. Citation No. 2870467 is affirmed and a penalty of $20 is
assessed.

3.

Citation No. 2870494 is vacated.

4.

Citation No. 2870470 is vacated.

5. Citation No. 2870466 is affirmed as a "non-S&S" citation
and a penalty of $50 is assessed.
6. Respondent is-ordered to pay to the Secretary the sum of
$70 within 30 days of the date of this decis.ion.

dtawvJ

urer
rative Law Judge
Distribution:

Tobias B. Fritz, Esq., U.S. Department of Labor, Office of the
Solicitor, 911 Walnut Street, Suite 2106, Kansas City, MO 64106
(Certified Mail)
Bradley s. Hiles, Esq., JoAnne Levy Saboeiro, Esq., Peper,
Martin, Jensen, Maichel and Hetlage, 24th Floor, 720 Olive
Street, St. Louis, MO 63101 (Certified Mail)
slk
1034

'

.,

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

AUG 171988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
:

Docket No. LAKE 88-4-M
A.C. No. 11-02780-05506

v.
Docket No. LAKE 87-85-M
A.C. No. 11-02780-05504

OZARK-MAHONING COMPANY,
Respondent

Annabel Lee Mine
Docket No. LAKE 88-22-M
A.C. No. 11-02667-05505
Denton Mine
DECISIONS
Appearances:

Miguel·J. ,Carmona, Esq., Office of the
Solicitor, u.s. Department of Labor, Chicago,
Illinois, for the Petitioner;
Thomas M. Dowling, Safety and Industrial .
Relations Manager, and Vic A. Evans, General
Manager, Ozark-Mahoning Company, Rosiclare,
Illinois, for the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern civil penalty proposals filed
by the petitioner against the respondent pursuant to section
llO(a) of the Federal Mine Safety and health Act of 1977,
30 U.S.C. § 820(a), seeking civil penalty assessments for
eight alleged violations of MSHA's mandatory noise standards
found in Part 57, and the injury reporting standards found in
Part 50, Title 30, Code of Federal Regulations.
The respondent contested the citations and proposed civil
penalty assessments, and pursuant to notice served on the
parties, hearings were held .in Evansville, Indiana. The
parties filed posthearing briefs, and I have considered the

1035

arguments made therein in the course of my adjudication of
these cases.
Issues
The issues presented in these proceedings are as follows:
. 1. Whether the respondent violated the
cited mandatory safety standards, and if so,
the appropriate civil penalties to be assessed
for the violations based on the criteria found
in section llOCi) of the Act.
2. Whether the inspector's "significant
and substantial" CS&S) finding concerning one
noise citation violation is supportable.
3. Additional issues raised by the
parties in this proceeding are identified and
disposed of in the course of these decisions.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

Section 110(.i) of the 1977 Act, 30 U.S.C. § 820(i).

3.

Commission Rules, 20 C.F.R. § 2700.l et seq.

Stipulations
The parties stipulated to the following (Exhibit P-R-1):
1. Ozark-Mahoning Company, a Delaware
Corporation, is the owner and operator of the
Denton and Annabel Lee Mines located in the
state of Illinois and the county of Hardin.
2. The mines operated by Ozark-Mahoning
Company are subject to the Federal Mine Safety
and Health Act of 1977 as it relates to
30 C.F.R. Part 57 for metal and nonmetal mining
and milling operations.
3. The Denton Mine is classified under
the Act as a smalL mine having accumulated a

1036

total of 35,136 work hours in the preceding
calendar year.
4. The Annabel Lee Mine is classified
under the Act as a small mine having accumulated a total of 53,131 work hours in the
preceding calendar year.
5. On May 27, 1987 at 2:00 p.m., MSHA
Inspector Jerry Spruell issued Citation
No. 2865780 to Ozark-Mahoning for an alleged
violation of 30 C.F.R. § 50.20.
6. On May 27, 1987 at or near 3:00 p.m.,
MSHA Inspector James Bagley issued Citation
Nos. 2865757, 2865758 and 2863759 for alleged
violations of 30 C.F.R. § 57.5050(b).

7. On May 27, 1987, MSHA Inspector Jerry
Spruell issued Citation Nos. 2865785, 3059584
and 3059585 for alleged violations of 30 C.F.R.
§ 57.5050(b).
Citation No. 2865785 was issued
for an alleged violation of 30 C.F.R. § 57.5050.
8. Pursuant to the provisions of section
llO(a) of the Federal Mine Safety and Health
Act Ozark-Mahon1ng.Company posted Notices of
Contest and requested hearings in the matter of
alleged violations of 30 C.F.R. § 50.20 and
30 C.F.R. § 57.5050(b) as issued by Citation
Nos. 2865780, 2865757, 2865758, 2863759,
2865785, 3059584 and 3059585.
9. During the preceding year
Ozark-Mahoning Company's Mining Division
accumulated a total of 238,015 hours worked for
all its reportable locations covered under the
Mine Safety and Health Act of 1977 as it
relates to 30 C.F.R. Part 57 for metal and
nonmetal mining and milling operations.
10. Payments as originally proposed for
the alleged violations in this matter will not
adversely affect the operator's ability to
remain in business.

1037

Discussion
The citations in issue in these proceedings are as·
follows:
Docket No. LAKE 88-4-M
Section 104(a) non-"S&S" Citation No. 2865757, May 28,
1987, cites a violation of 30 C.F.R. § 57.5050(b), and the
condition or practice is stated as follows (Exhibit P-6):
The full shift exposure to mixed noise
levels of the No. 1 Haulage Truck operator
exceeded unity (100%) by 4.25 Times (425%) as
measured with a dosimeter. This is equivalent
to an 8-hour exposure to 100.3 dBA. Personal
hearing protection was being worn. Feasible
engineering controls were not being used to
reduce the noise exposure to permissible units.
Section 104(a) non-"S&S" Citation No. 2865758, May 28,
1987, cites a violation of 30 C.F.R. § 57.5050(b), and the
condition or practice is stated as follows (Exhibit P-7):
The full shift exposure to mixed noise
levels of the No. 2 Haulage Truck operator
exceeded unity·(l0P%> by 3.65 times (365%) as
measured with a dosimeter. This is equivalent
to an 8-hour exposure to 99.3 dBA. Personal
hearing protection was being worn. Feasible
engineering controls were not being used to
reduce the noise exposure to permissible units.
Section 104(a) non-"S&S" Citation No. 2865759, May 28,
1987, cites a violation of 30 C.F.R. § 57.5050(b), and the
condition or practice is stated as follows (Exhibit P-8):
The full shift exposure to mixed noise
levels of the Front-end Loader, operating in
the south end of the mine (Miller's Ridge),
exceeded unity (100%) by 2.96 (296%) as
measured with a dosimeter. This is equivalent
to an 8-hour exposure to 97.7 dBA.
Personal
hearing protection was being worn. Feasible
engineering controls were not being used to
reduce the noise exposure to permissible units.

1038

Section 104Ca> "S&S" Citation No. 2865785, May 28, 1987,
cites a violation of 30 C.F.R. § 57.5050, and the condition or
practice is stated as follows (Exhibit P-5):
The full shift exposure to mixed noise
levels of the jumbo drill operator exceeded
····unity (100%) by 18.67 times (1867%) as measured
with a dosimeter. This is equivalent to an
8-hour exposure io 111 dBA. Personal hearing
protection was being worn. This drill operator
was exposed to continuous noise, when both
drills were being used, at 118 dBA level,
measured at the operator's ear with a sound
level meter, on this date. The left drill was
not nullified and the right drill exhausted
toward the operator.
The respondent asserted that it has previously paid the
civil penalty assessment of $20 for section 104(a) non-"S&S"
Citation No. 2865784, issued on May 28, 1987, for a violation
of 30 C.F.R. § 57.5050, and no longer wishes to contest this
citation. Petitioner's counsel agreed that this was the case
(Tr. 143-147).
Docket No. LAKE 88-22-M
Section 104(a) non-"S&S" Citation No. 3059584, issued on
June 17, 1987, cites a violation of 30 C.F.R. § 57.5050Cb),
and the condition or practice states as follows (Exhibit P-9):
The full shift exposure to mixed noise
levels of the Wagner 2B loader operator working
underground exceeded unity (100%) by 1.583
times (158.3%) as measured with a dosimeter.
Personal hearing protection was being worn.
This exposure is equivalent to an 8-hour ~
exposure to 93 dBA.
Section 104(a) non-"S&S" Citation No. 3059585, issued on
June 17, 1987, cites a violation of 30 C.F.R. § 57.5050(b),
and the condition or practice states as follows (Exhibit P-10):
The full shift exposure to mixed noise
levels of the operator of the loader (Scoopy
#2) working underground exceeded unity Cl00%)
by 3.04 times (304%) as measured with a
dosimeter. Personal hearing protection was
being worn. This exposure is equivalent to an
8-hour exposure to 98 dBA.

1039

Docket No. LAKE 87-85-M
Section 104(a) non-"S&S" Citation No. 2865780, May 27,
1987, cites a violation of 30 C.F.R. § 50.20, and the condition or practice is stated as follows (Exhibit P-1):
A lost time injury accident occurred at
this property on 4-30-87. A 7000-1 form,
report of accident or injury, had not been
submitted to MSHA as required. The employee
injured was not worked on 5-1-87 due to the
accident.
MSHA's Testimony and Evidence Concerning the Accident
Reporting Citation-Docket No. LAKE 87-85-M
MSHA Inspector Jerry L. Spruell testified as to his training and experience, and he confirmed that he conducted an
inspection on May 27, 1987, with fellow Inspector James Bagley,
and upon requesting to look at any mine records relating to
accidents in the mine, management produced records which showed
that a lost time injury accident had occurred and that an
employee had missed 1 day of work because of that accident.
since an MSHA Form No. 7000-1, had not been submitted as
required by section 50.20, he issued the citation. The company
records he reviewed ·indicated that the employee was involved in
an "injury" and missed 1 day of work and was not able to perform his regular duties because of being overcome by hydrogen
sulfide gas. Mr. Spruell confirmed that the records di~ not
show that the employee was involved in an "accident" (Tr.
9-16).
Mr. Spruell confirmed that at the time he issued the citation he was not aware that the employee received any medical
treatment. After speaking with the employee he told him that
he was unable to work on May 1, 1987, "because he was blind
and couldn't see to run his drill," and was unable to work
because "he couldn't see to do the job safely." The employee
also told him that he had visited a doctor and that the doctor
told him he did not want him exposed "to the gas at the high
level like that at that short period of time without a recovery time" (Tr. 17).
Mr. Spruell believed that the respondent was familiar
with MSHA's injury reporting requirements because it has the
forms and the instructions which are on the front cover.
Mr. Spruell confirmed that he made a gravity finding of
"unlikely" because the failure to report the injury would not

1040

cause an injury or illness, and he found "lost days or
restricted duty" because the employee had an injury that
resulted in a lost day. He also confirmed that he made a
negligence finding of "moderate" because the off ice person who
fills out the report advised him that she was not aware of the
fact that lost time injuries had to be reported. Mr. Spruell
abated the citation that same day after the person filled out
a reporting form (Tr. 18).
Inspector Spruell confirmed that he based his citation on
certain documents which were given to him by mine management
during his inspection. A supervisor's Report of Accident
shows that the employee lost 1 day of work on May 1, 1987
(Exhibit P-2-a). A worker's compensation form filed by the
respondent reflects that the incident concerning the employee
was a "lost work day case" (Exhibit P-2-b); (Tr. 20-23).
On cross-examination, Mr. Spruell confirmed that except
for the violation·· in question, the respondent's other records
were reasonably kept and the respondent made a reasonable
attempt to keep them up to date. Be did not believe that any
of the respondent's employees were co,1spiring to "cover up"
the injury report in question {Tr. 24).
Mr. Spruell confirmed that he has been trained in the
effects of hydrogen sulfide gas, and while it affects individuals differently, the-normal result of exposure to the gas
results in eye irritation to anyone who has been exposed to
high gas levels (Tr. 26). He also confirmed that the supervisor's report reflects the time of the injury as "all day,"
and this would indicate that the employee worked all day· (Tr.
34).
Mr. Spruell stated that he was familiar with MSHA Information Bulletin 86-GC, 86-3M {Exhibit R-1), and he denied that
the respondent's accountant, Mrs. Spivey, told him that she
used this bulletin in filling out injury and accident forms
(Tr. 37). Mr. Spruell made reference to a certain information
contained in the bulletin which requires the reporting of a
"doubtful" injury {Tr. 40).
In response to further questions, Mr. Spruell stated that
it was his understanding that the employee worked his whole
shift and went to a doctor after the shift (Tr. 46).
Mr. Spruell stated that the employee in question, Joseph
Clanton, did not contact him or his office with regard to his
eye injury, and that he did not go to the mine to specifically
look for any report incident to Mr. Clanton's eye condition.

1041

Mr. Spruell confirmed that his citation was issued solely on
the basis of the records that the respondent showed him, and
that he was not aware of Mr. Clanton's injury prior to the
inspection (Tr. 72-73). Mr. Spruell was made aware of the
fact that another MSHA inspector was at the mine on May 1,
making gas readings, but this inspector was not looking into
the injury reporting situation (Tr. 73).
Mr. Spruell reaffirmed the fact that he issued the citation because of the respondent's injury report and the
worker's compensation form which indicated that the employee
missed 1 day of work because of gas exposure to his eyes CTr.
106-107). Based on this information, he concluded that the
lost day of work was a direct result of the injury, and all
lost time injuries must be reported. He agreed that if the
employee simply decided to take a day off for a reason other
than an injury, then it would not hav~ to be reported (Tr.
108-109).
Joseph Clanton, confirmed that he is employed by the
respondent as a drillman, and that he worked his shift on
April 30, 1987. After coming to the surface at the end of his
shift, his eyes were exposed to the light, and he stated that
"I was blinded. I was in extreme pain, excruciating pain."
He stated that he was angry, and was exposed to the same condition 2-days prior to April 30, and that he told the secretary
and the mine superintendent "that when they got that place
straightened out, fit to· work in, I'd be back." He confirmed
that he intended to stay off "until they got this condition
abated" (Tr. 50-51).
Mr. Clanton stated that he attempted to drive home as he
had done the previous two evenings, but after driving 5 miles
he stopped at a friend's house and asked to be taken to a
doctor. Mr. Clanton stated that he blindfolded himself, and
!~ter it was dark he was able to see.
After arriving at the
~bctor's office, he was directed to the emergency room where
his eyes were flushed out with sterile water. The doctor
examined him and put some salve in his eyes and gave him the
rest of it to use. The next morning his eyes "scabbed over a
little bit, but they cleared up" (Tr. 54-55). Mine Superintendent Pilcher called him, and Mr. Clanton advised him that he
did not care to come to work that day because he did not want
to be exposed to the gas again (Tr. 55).
Mr. Clanton stated that after visiting the doctor on
Thursday, April 30, the doctor told him "you better not work
tomorrow," referring to Friday, May 1, 1987. The doctor did
not order him a prescription other than the tube of ointment

1042

which he gave him, and Mr. Clanton could not identify that
medication. The ointment "made it hurt a little worse. But,
it cleared up over night" (Tr. 56-58). Mr. Clanton was shown
copies of the doctor's statements, (Exhibit P-3-a, b, c), and
he confirmed that he had not previously seen these reports
(Tr. 57). Mr. Clanton confirmed that he did not work on
May 1, 1987, and that he was not paid workmen's compensation
that day because he was not eligible for it (Tr. 63).
Mr. Clanton could not remember the doctor instructing him
to return to the clinic on May 5, 19S7, as stated in his
report (Exhibit P-3-a), but that he did return the next morning on May 1, 1987, and that oa that day his vision was intact
and his eyes were clear as stated in the doctor's report.
However, his eyes "still hurt a little bit," and he had to
wear sun glasses which he had purchased (Tr. 64-65).
Mr. Clanton stated that while he was able to return to
work on Friday, May 1, he was unwilling to do so, and that he
informed Mr. Pilcher that he would not be back "until he got
the air cleared up." Mr. Clanton stated that he would not
have returneti to work that day even if the doctor had told him
to (Tr. 65-66). He returned to work on Saturday, May 2, and
worked in another area of the mine "where the good air was
at," and was paid overtime (Tr. 66, Exhibit R-2). He confirmed that he has walked off the job on one prior occasion
without notifying his··· supervisor <Tr. 68).
Respondent's Testimony and Evidence
Daniel Pilcher, respondent's mine superintendent, testified as to his experience, background, and education, and he
confirmed that the mine air is monitored constantly by the
respondent, as well as Federal and State inspectors when they
are at the mine for inspections. In addition, mine employees
are trained to recognize the hazards associated with hydrogen
sulfide gas which is normally liberated by entrapped water.
Measures are taken to exhaust the gas and to insure adequate
ventilation to remove it (Tr. 77-81).
Mr. Pilcher confirmed that he has reviewed the doctor's
report which indicated that Mr. Clanton's eyes were clear and
his vision intact the day after his injury. He had not seen
the report when he spoke with Mr. Clanton that day, and
Mr. Clanton led him to believe that the doctor did not think
he should work that day (Tr. 82).

1043

Mr •. Pilcher stated that Mr. Clanton has walked off the
job on two separate occasions without notifying anyone, and he
was reprimanded for this (Tr. 85-86, Exhibit R-3).
On cross-examination, Mr. Pilcher confirmed that he was
familiar with MSHA's reporting procedures, and according to
the guidelines if there is "a serious question" or doubt concerning an injury, it will be reported.
If the respondent is
sure of its status, it will not be reported. Mr. Pilcher
agreed that the doctor's report, (Exhibit P-3-a) states that
Mr. Clanton ~ould return to work on May 2, 1987, but "as far
as we are concerned, that is not reportable." With regard to
"a first aid case" where an employee loses a day of work,
Mr. Pilcher believed it was a matter of judgment as to whether
it had to be reported, and that in Mr. Clanton's case it was a
first aid case, rather than a medical treatment case. In
short, Mr. Pilcher believed that the regulation is not clear
as to whether a first aid case is required to be reported (Tr.
91-93).
Mr. Pilcner confirmed that the doctor's report was presented well after the issuance of the citation and that the
information he had available as to whether Mr. Clanton was
able to return to work on Friday, May 1, 1987, was the conversation that he had with him that day during which Mr. Clanton
informed him that he did not want to work in the same area and
wanted to work elsewhere. Mr. Pilcher stated that he informed
Mr. Clanton that this was not an option. Mr. Pilcher stated
that he came to the conclu3ion that Mr. Clanton did not want
to return "because he didn't want to return" and not bec~use
of any gas exposure. In support of this conclusion,
Mr. Pilcher stated that two other individuals working within a
few feet of Mr. Clanton did not believe the gas was bad enough
to see a doctor (Tr. 100).
Thomas M. Dowling, respondent's Safety and Industrial
Relations Inspector, confirmed that the filing of accident
forms with MSHA is his responsibility and that the forms are
kept in his off ice. He also confirmed that he is familiar
with MSHA's accident reporting bulletin and that he uses it as
a guide for the preparation of the reports. He stated that no
report was filed in Mr. Clanton's case because it did not
appear to be a lost time accident which met MSHA's criteria
guidelines. He believed that a first aid situation establishes a "doubtful case" under the guidelines, and that there
was no attempt to hide anything from MSHA, nor was it an oversight. He stated that based on MSHA's available criteria, "we
did what we thought was right" (Tr. 115-117).

1044

On cross-examination, Mr. Dowling confirmed that worker's
compensation reports are filed in any accident or injury situation that requires medical treatment or first aid, even in
cases of no lost work days. This is done so that payment of
the medical services may be obtained CTr. 119-120). When
asked.why the forms which were filed in Mr. Clanton'scase
reflect "one lost day," Mr. Dowling responded "I don't rightly
know at this time" CTr. 121).
Mr. Dowling conceded that taking the position that
Mr. Clanton lost a day of work for worker's compensation purposes, but not tor MSHA's reporting requirements, was contradictory (Tr. 122). The discussions with Mrs. Spiyey as to
whether the incident had to be reported to MSHA took place the
week following the incident, but Mr. Dowling could not recall
whether he discussed with Mrs. Spivey whether or not a report
should be filed. The decision was probably made after the
doctor's report was raceived, and Mr. Dowling concluded that
it was a first aid case since no charges were received from
the doctor for any prescription medication, and he probably
instructed Mrs. Spivey not to file any report (Tr. 124-129).
Mr. Dowling stated that he did not speak to the doctor
concerning Mr. Clanton's case, and that the letter received
from the doctor on June 19, 1987, was obtained to enforce his
belief that there was some reasonable doubt, and to support
the respondent's defense_ to the contested citation (Tr. 130).
Mr. Dowling confirmed that Mr. Clanton worked in a different mine area when he returned to work on Saturday, May 2,
because there was no activity in the area where he had previously worked on April 30, and all employees are given the
option to do other work when they work on Saturdays (Tr. 131).
Inspector Spruell was called by the respondent, and he
confirmed that he had a conversation with Mr. Evans during
which he advised Mr. Evans that Mr. Clanton could not be moved
from a work area where he was experiencing a problem with gas
in order to avoid lost time because this would be considered
"restricted duty" which would have to be reported (Tr.
132-134).
MSHA's Testimony and Evidence concerning the Noise
Citations-Dockets LAKE 88-4-M and LAKE 88-22-M
MSHA Inspector Jerry L. Spruell confirmed that all of the
noise citations in these proceedings were issued after inspections at the mines, which included noise surveys taken in
connection with the cited equipment operator occupations, and

1045

mine management was informed of the inspections and surveys.
Mr. Spruell confirmed that he issued Citation No. 2865785,
after finding a muffler missing from one of the drill mechanisms mounted on the front of a two-boom jumbo drill. The
drill operator was prepared for the noise survey at the start
of his work shift, and a sound level meter test indicated that
he was constantly exposed to noise levels above 115 dBA, and
that is why he cited a violation of section 57.5050. Although
the drill operator was wearing hearing protection, he was not
wearing it at all times, and Mr. Spruell stated that he
observed him on the drill without his hearing protective muff
in place.
Mr. Spruell stated that one of the drills was equipped
with a muffler, and the other was not. He considered the
muffler to be a feasible engineering control which reduced the
level of noise exposure to the operator. He explained that
the exposure level of 111 decibels as stated in the citation
was the average noise exposure for the drill operator over his
full work shift, and that the 118 decibels indicated a continuous noise exposure level as measured with a sound level meter.
He confirmed that the equipment operators were "hooked up" for
the noise survey before they went underground, and that the
testing devices were removed when they came to the surface
after their work shift. He also confirmed that the maximum
allowable noise exposure pursuant to section 57.5050 is
90 decibels over an a~hour work shift, and 115 decibels for
any particular time (Tr.· 149-155). Mr. Spruell explained the
noise testing procedures which he follows in conducting noise
surveys, and he confirmed that the dosimeter and noise level
meters were properly calibrated and used to support the citations which he issued (Tr. 155-159).
Mr. Spruell stated that the jumbo drill is either
factory-equipped with a muffler, or is manufactured in such a
way as to facilitate the installation of a muffler. He stated
that the respondent used "rubber type" mufflers, but that in
this instance did not equip one of the drills with a muffler
because "they didn't feel it had done that much good, and they
didn't see any reason they would have to have it there" (Tr.
159).
Mr. Spruell stated that the drill violation presented a
loss of hearing and permanently disabling type injury, and
that he made a gravity finding of "highly likely" because the
operator was not wearing hearing protection at all times, and
he had to consider it highly likely that he would suffer some
type of hearing loss from being exposed to noise of the level

1046

tested. Mr •. Spruell confirmed that he made a "moderate" negligence finding because the operator was wearing hearing protection "at times," and one of the drills had a muffler CTr.
161-162).
On cross-examination, Mr. Spruell confirmed that the
drill was running at the time he observed the operator without
his hearing muffs, and while conceding that he stated on the
citation that "personal hearing protection was being worn," he
explained that he made that statement to give the respondent
the benefit of the doubt, and because the operator was wearing
ear muffs "the biggest part of the time" (Tr. 164, 165).
Mr. Spruell conceded that in the 9 years he has inspected the
respondent's mines, he has not previously cited any noise
violations (Tr. 167), and the reason for this is that no prior
noise surveys were made at the mines (Tr. 208).
Mr. Spruell confirmed that in the course of issuing his
noise citations, he monitored the employees, but did not stay
with them for the entire 8 hours. He confirmed that the
employees were exposed to other mixed noise sources in the
course of their work, and although they were wearing muffs,
they were still exposed to measured noise levels above those
required by the cited standards. With regard to the jumbo
drill, his noise level meter recorded the sound level from
that particular piece of equipment only, and his 118 decibel
reading with the sound level meter was from that drill (Tr.
170). Noise levels measured with a dosimeter indicate the
work environment noise exposure, while sound level meter
readings measure an instantaneous noise exposure level (Tr.
173).
Mr. Spruell explained that a dosimeter records all noise
exposure levels that are 90 decibels or above over a full
working shift, and while it is true that it records noise
levels from different sources and does not differentiate the
amount of noise coming from any one particular source, a sound
level meter reading can (Tr. 177). In the case of the jumbo
double drill citation, a noise level meter reading alone was
sufficient to support the citation (Tr. 178).
Mr. Spruell confirmed that among his suggestions to the
respondent for achieving compliance with the noise standards
was a suggestion that mufflers be installed or put back on the
equipment in question. He agreed that the installation of
mufflers would not achieve total compliance and that the
equipment operators would still be required to wear personal
hearing protection. Mr. Spruell also agreed that there were
no other feasible engineering controls that would bring the

1Q47

respondent into compliance with the noise standards, but that
in one instance a cab did bring the drill operator in his
compartment into compliance, but would probably not bring
others who are exposed to the drill noise into compliance (Tr.
180-181).
Mr. Spruell contended that with the installation of equipment mufflers, which are feasible engineering controls, and
the wearing of personal hearing protection, the respondent
will come into compliance, but without the personal hearing
protection, it would not be in compliance (Tr. 184). Respondent's representative agreed that this is the issue that is
basically involved in all of the noise citations which were
issued in these proceedings, and that it has done everything
required by MSHA to abate the citations and attempt to stay in
compliance (Tr. 184-185).
Diane Brayden, Industrial Hygienist, MSHA's Duluth,
Minnesota District Off ice, testified as to her experience,
education, and training in noise matters. She confirmed that
she holds a B.S. degree in biology, and a master's degree in
industrial hygiene, and that she has been in her present position with MSHA for 10 years (Tr. 249-251). She has participated in approximately 50 MSHA inspections involving noise,
has visited mine sites where violations have occurred, and has
testified for MSHA as an expert witness (Tr. 253).
Ms. Brayden confirmed that she has reviewed the citations
in this case, and that the mufflers involved are the exhaust
type used to decrease the amount of energy being exhausted
from compressed air, and to dissipate exhaust noise, which is
a major contributor to the total noise emitted by the machines.
She stated that the use of mufflers is feasible, and that the
small noise decibel decreases resulting from the use of such
mufflers translates into a significant change in the amount of
energy that is doing the noise damage. In her opinion, the
use of personal hearing protection to achieve a degree of compliance that has not been achieved by other means is unreliable because the hearing protectors such as muffs and ear
plugs are tested under laboratory conditions which are not
reflective of actual mine conditions and the use of other
equipment, and she referred to several articles dealing with
the testing and reliability of such personal hearing devices
(Tr. 253-263).
With regard to Citation No. 2865785 for the jumbo drill,
and after hearing the testimony regarding that citation,
Ms. Brayden's was of the opinion that while the noise exposure
was significantly reduced by the installation of a muffler to

1048

abate the citation, the dosimeter reading of 1,867 percent of
allowable noise exposure would indicate that the drill operator was losing his hearing to a significant degree even if he
were to wear his ear muffs all day. With regard to this piece
of equipment, the driller would be required to wear both ear
plugs and muffs as well as having a muffler on the drill (Tr.
265-266).
Ms. Brayden considered the installation of mufflers on
the equipment to be extremely important, and that the installation of such a muffler would take about 2 or 3 hours. She
conceded that mufflers used on equipment under freezing conditions do aggravate existing freezing conditions, but that the
use of air dyers to alleviate this problem is common in the
industry. She believed that the use of mufflers as an engineering noise control device will permit the personal hearing
protection to work more effectively in that the individual is
exposed to less noise exposure (Tr. 269).
On cross-examination, Ms. Brayden stated that as a general
rule, exhaust noise is a major contributor to the total amount
of noise exposure from other sources, but she could not state
the percentage of noise that would be attributable to the
exhaust without testing the particular piece of equipment (Tr.
270). She agreed that a muffler would not bring a drill into
total compliance below 90 decibels, and that this wou~d probably be true also for ·ear muffs. She stated that while MSHA
would like to achieve total noise protection, in most cases
total protection is not possible, and that to the degree that
protection is available, the employee should have it (Tr. 272).
Ms. Brayden also conceded that the wearing of ear protection throughout the day will not guarantee an employee's hearing, but that MSHA's position is that engineering controls are
to be implemented to the degree that compliance can feasibly
be met in that manner and that hearing protection will be
accepted after that to achieve the remainder of the compliance.
She believed that mufflers are a feasible engineering control
in that they reduce noise to a significant degree, but that
they are not capable of bringing the operator's exposure down
to a 90 decibel level. However, mufflers are still considered
by MSHA to be a feasible control in that their use reduces the
noise exposure significantly, and without the muffler the
employee would be exposed to a greater degree of noise than he
would be with the muffler, regardless of whether he is in full
compliance with the standard (Tr. 276-277).

1049

Findings and Conclusions
Docket Nos. LAKE 88:...4-M and LAKE 88-22-M
In these cases, the respondent is charged with violations
of the mandatory noise exposure requirements found in
30 C.F.R. § 57.5050. Citation Nos. 2865757, 2865758, 2865759,
3059584, and 3059585 were issued because of the failure by the
respondent to utilize feasible engineering controls to reduce
noise levels of over 90 decibels for an 8-hour period in violation of section 57.5050(b), and Citation No. 2865785 was
issued for the failure by the respondent to utilize feasible
engineering controls to reduce noise exposure in excess of
115 decibels in violation of section 57.5050. The cited noise
standards provide as follows:
57.5050 Mandatory.
Ca) No employee shall
be permitted an exposure to noise in excess of
that specified in the table below. Noise level
measurements shall be made using a sound level
meter meeting specifications for type 2 meters
contained in American National Standards
Institute (ANSI) Standard Sl.4-1971. "General
Purpose Sound Level Meters," approved April 27,
1971, which is hereby incorporated by reference
and made a part hereof, or by a dosimeter with
si~ilar accuracy.
This publication may be
obtained from the American National Standards
Institute, Inc., 1430 Broadway, New York,
New York 10018, or may be examined in any Metal
and Nonmetal Mine Health and Safety District or
Subdistrict Off ice of the Mine Safety and
Health Administration.
PERMISSIBLE NOISE EXPOSURES
Sound level dBA,
slow response

Duration per day,
hours of exposure

90

8

6 •
4

.

•
.

•

•

.

•

3
2 •
1-1/2 •
1 .
1/2 . •
1/4 or less

.

.

.

•

•

•

•

•

•

•

•

•

•

•

•

•

e

.

• •
•
. •
• • • •
. . . . . .

1050

92

95
97
100
102
105
110
115

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

exceeds unity, then the mixed exposure shall be
considered to exceed the permissible exposure
Cn indicates the total time of exposure at a
specified noise level, and Tn indicates the
total time of exposure permitted at that level.
Interpolation between tabulated values may be
determined by the following formula:
log T = 6.322 - 0.0602 SL
Where T is the time in hours and SL is the
sound level in dBA.
Cb) When employees' exposure exceeds that
listed in the above table, feasible administrative or engineering controls shall be utilized.
If such controls fail to reduce exposure to
within permissible levels, personal protection
equipment shall be provided and used to reduce
sound levels to within the levels of the table.
The respondent agreed that all of the contested citations
concern common issues, and involve the absence of mufflers on
the particular pieces of equipment being operated by the
miners who were out of compliance with the noise exposure
requirements found in the cited standard (Tr. 211). All of
the affected miners were wearing personal hearing protection
at the time the citations were issued, and although abatement
was achieved by the installation of mufflers on the cited
equipment, the respondent was still out of full compliance
with the cited standards. The respondent denied that it seeks
to discontinue the use of personal hearing protection devices,
or that it had any problems in installing mufflers on the
cited equipment in question (Tr. 231-233). Respondent contended that section 57.5050(b) does not include a requirement

1051

that noise levels be reduced to any specific level and permits
the continued use of personal hearing protection notwithstanding the fact that feasible engineering noise control devices
such as mufflers still do not reduce the noise levels to
within permissible levels (Tr. 215). Respondent took the position that requiring it to install mufflers on its equipment is
an exercise in futility because it would still be out of compliance and the equipment operators would still be required to
wear personal hearing protection. In this regard, respondent's representative stated that MSHA "wants us to spend
m_oney for remedies that don't work."
The respondent conceded that MSHA has not required it to
do anything other than install mufflers and to insure that its
employees wear personal hearing protection. However, it is
concerned that future inspections will require it to do more
and that "it's an ongoing thing" (Tr. 199-201). Inspector
Spruell stated that had the mufflers been installed on the
equipment, and all employees were wearing personal hearing
protection, he would not have issued the citations (Tr. 203).
He confirmed that he issued the citations because of the
absence of mufflers which are considered feasible engineering
controls to reduce noise levels (Tr. 203). Although
Mr. Spruell mentioned the use of cabs as feasible noise controls, he conceded that they are not feasible at the respondent's mines, but that mufflers definitely are. Further,
Mr. Spruell could cite no other feasible noise controls
available at this time for the respondent other than mufflers
(Tr. 207).
During the course of the hearing, the respondent conceded
that all of the cited equipment was out of compliance with the
noise level requirements found in the cited standards, and it
did not deny the existence of the conditions cited and
described by the inspectors on the face of the citations.
Further, the respondent did not question the noise exposure
levels cited by the inspectors as a result of their noise
survey tests, nor did it question the test procedures followed
by the inspectors with respect to the use of dosimeters and
noise level meters in support of the citations <Tr. 212-215;
220, 236, 239-241). •rhe respondent further agreed that a
dosimeter which is attached to a miner during a noise survey
records the sound levels in his normal working environment,
and that once it is attached to an employee, there is no
requirement that an inspector stay with the employee and
monitor his movements during the entire 8-hour working shift
(Tr. 170). Respondent also agreed that a dosimeter measures
the noise exposure level for an employee's working environment

1052

over a full 8-hour shift, and that a noise level meter gives
an instantaneous reading of the noise level exposure.
In its posthearing brief, the respondent asserts that as
a result of the mobility of its employees, they are exposed to
numerous noise sources such as loaders, trucks, drills, fans,
and rock breakers during the normal course of a days work, and
it rejects MSHA's argument that the installation of a muffler
on a single piece of equipment being operated by an employee
resulted in a reduction of the noise exposure level, and that
coupled with the use of personal hearing protection, the
respondent i5 in compliance with the standard. Respondent
states that it rejects this argument because MSHA did not
address the issue of total 8-hour exposure and the feasibility
of muff ling of all noise exposure sources that an employee
would encounter during the duration of his work shift.
In
support of this argument, the respondent cites my prior
decision in ASARCO, Inc., v. Secretary of Labor, 3 FMSHRC 1300
(May 1981), in which I vacated a noise citation after finding
that MSHA's suggested use of certain noise controls were not
technologically feasible because of the required mobility of
the cited equipment operators.
The respondent further argues that MSHA has failed to
prove that any feasible engineering controls are available for
mu~ti-noise sources resulting from equipment operator mobility, and that in the ·abatement of the citations MSHA made no
effort to inspect for 8-hour noise exposure to the employee,
but simply relied on an instant sound meter reading on single
items of equipment. The respondent suggests that this type of
testing fails to prove that the type of muffler suggested by
the inspectors for installation on the cited equipment did in
fact lower the 8-hour noise exposure levels in question. The
respondent points out that while Inspector Spruell agreed that
it was in compliance after the mufflers were installed, he
could not speak for other inspectors, and the respondent
expressed concern that other inspectors may in the future continue to cite it for being out of compliance in the same
circumstances.
Citing a decision by former Commission Judge Charles
Moore in Hilo Coast Processing Company v. Secretary of Labor,
1 FMSHRC 895 (July 1979), respondent argues that the lack of
any identifiable and definitive MSHA criteria for economically
feasible noise controls when they do not bring noise exposure
within permissible limits leaves the matter to the judgment of
individual inspectors, and requires an operator to guess at
what must be spent on noise controls that will meet the estimate of some unknown inspector at some future time.
In the

1053

Hilo case, Judge Moore vacated several noise citations after
finding that MSHA had failed to prove that certain engineering
controls recommended by the inspector were technically and
economically feasible.
Judge Moore found that for the most
part, MSHA's proof was based on the unsupported personal
judgments of the inspector who issued the citations, and that
the operator was left in the untenable position of "guessing"
as to what was required by the inspector for compliance.
During the course of the hearing, MSHA took the position
that although the installation of mufflers on the cited equipment in question were feasible engineering controls which
could readily be used to reduce the noise level, personal hearing protection would still be required in conjunction with the
use of the mufflers. MSHA pointed out that the respondent's
complaint is that it was still required to use personal hearing protection even though the use of mufflers did not reduce
the noise exposure to within the levels required by the table
found in section 57.5050 (Tr. 186). MSHA's view is that the
installation of the mufflers resulted in a significant reduction of the noise levels to which the employees operating the
equipment were exposed, and that this is precisely what section 57.5050 mandates (Tr. 230).
In its posthearing brief, MSHA asserts that the mufflers
used to reduce the noise levels in question are feasible engineering controls because (1) the operators of the equipment
were exposed to excessive noise; (2) the mufflers were capable
of reducing noise exposure and were technologically feasible;
(3) a significant noise reduction was obtained by the use of
the mufflers; and (4) the cost estimates for the mufflers were
sufficiently precise and were not wholly out of proportion to
the expected benefits.
In MSHA v. Callanan Industries, Inc., 5 FMSHRC 1900
(November 1980), the Commission construed the term "feasible"
as "capable of being done," and it concluded that the determination of whether the use of an engineering control to reduce a
miner's exposure to excessive noise is capable of being done
involves consideration of both technological and economic
achievability. In allocating the burden of proof required to
make this determination, the Commission offered the following
guidelines at 5 FMSHRC 1909:
(I]n order to establish his case the Secretary
must provide:
(1) sufficient credible evidence
of a miner's exposure to noise levels in excess

1054

of the.limits specified in the standard; (2)
suff icieht credible evidence of a technologically achievable engineering control that could
be applied to the noise source; (3) sufficient
credible evidence of the reduction in the noise
level that would be obtained through implementa~
tion of the engineering control; (4) sufficient
credible evidence supporting a reasoned estimate
of the expected economic costs of the implementation of the control; and (5) a reasoned demonstration that, in view of elements 1 through 4
above, the costs of the control are not wholly
out of proportion to the expected benefits.
After the Secretary has establi3hed each of the
above elements, the operator in rebuttal may
refute any of the components of the Secretary's
case.
In Todilto Exploration and Development Corporation v.
MSHA, 5 FMSHRC 1894 (November 1983), an inspector cited a violation of 30 C.F.R. § 57.5-50(b}, after conducting an 8-hour
noise survey with a dosimeter on a jackleg percussion rock
bolt drill in an underground uranium mine and finding that the
drill operator was exposed to 114 dBA. The drill operator was
wearing ear plugs and muffs, and the drill was not equipped
with a muffler. The violation was abated by the installation
of a muffler on the drill. However, subsequent noise readings
with a sound level meter showed that excessive noise levels
still existed, and the readings established that the drill
operator's average noise exposure levels ranged between
110 dBA and 113 dBA. Even though Todilto attached a muffler
to the drill, the drill operator was still required to wear
personal protective equipment.
The judge found that the drill operator was exposed to an
excessive noise level, and although he also found that MSHA
established that the installation of the muffler was an engineering control available to Todilto, since the exposure to
noise was still not within permissible levels as required by
the regulation, even with the muffler attached, the judge concluded that the installation of the muffler was not a feasible
engineering control, and he vacated the citation. On appeal,
the Commission reversed and stated as follows at 5 FMSHRC
1896-1897:
[W]e hold that a control may indeed be
"feasible" within the meaning of 30 C.F.R.
§ 57.5-50(b} even though it does not reduce the
miner's exposure to noise to permissible levels

1055

set forth in subsection Ca) of the standard.
Our holding is based upon the express wording
of the noise standard. Section 57.5-50(b)
unambiguously provides that when excessive
noise exposure levels exist, "feasible administrative or engineering controls shall be
utilized." It continued, "[i]f such [feasible]
controls fail to reduce exposure to within permissible levels, personal protection equipment
is to be provided and used • • • • "
(Emphasis
added}. Thus, the noise standard clearly contemplates that in a given case a control might
not reduce the noise exposure level to within
permissible levels, but nevertheless be a
"feasible" control required to be implemented.
To allow a mine operator to proceed directly to
the use of personal protective equipment and
thereby avoid implementing otherwise feasible
administrative or engineering controls, solely
because use of the controls themselves does not
achieve permissible exposure levels, would be
to allow circumvention of the standard's clear
requirement that excessive noise levels first
be addressed at their source. We note that
under the judge's approach a control that
reduces the level of noise from 114 dBA to
91 dBA Con the basis of an 3-hour exposure
period} would not be feasible simply because it
fails to reduce the noise level to 90 dBA. We
find no support for this result in the standard.
The Todilto case was remanded for the judge's determination as to whether or not MSHA proved a violation of section
57.S-50(b} for failure by the operator to implement a feasible
engineering control within the parameters of the Commission's
guidelines as enunciated in Callanan, supra. On April 17,
1984, the judge issued his decision and found that MSHA had
established that the drill operator was exposed to an excessive noise level, that the muffler was a technologically
achievable engineering control capable of reducing the drill
operator's noise exposure, and that the cost was not unreasonable for the benefits achieved. The judge found that Todilto
was in violation of section 57.5-SO(b}, and stated in pertinent part as follows at 6 FMSHRC 934 (April 1984}:
Therefore, based upon the credible evidence in this case, and the Commission's
decision in Callanan, I find that the Secretary
has proven the respondent violated mandatory

1056

standard§ 57.5-50(b) by failing to implement
the feasible engineering control (muffler)
which was available to it. The fact that the
muffler did not reduce the noise level to that
required by the standard is not a proper reason
for an operator to avoid the control and go
directly to personal protection equipment. The
standard contemplates the use of such personal
equipment only after all other "feasible"
engineering controls are installed to achieve
the best results possible.
In MSHA v. Landwehr Materials Inc., 8 FMSHRC 54 (January
1986), Judge Broderick affirmed a citation for a violation of
section 56.5-50(b), after finding that a shovel operator at a
limestone quarry who was wearing personal hearing protection
was exposed to a 96 dBA noise level for an 8-hour shift. After
the termination date for the citation was extended, MSHA's
Denver Technical Support Group performed a noise control survey
which showed that the noise level in the shovel operator's
environment was reduced by approximately 33 percent, from an
average of 101 to 98 dBA, when a vinyl curtain was installed
between the shovel operator and the engine compartment of the
shovel. While significant, this reduction did not bring the
noise level down to the permissible 90 dBA specified in the
cited standard, and personal protection equipment was still
deemed necessary. Judge Broderick found that the installation
of the vinyl curtain was a feasible engineering control available to reduce the operator's noise exposure, and that
Landwehr's failure to utilize this feasible noise control
constituted a violation of section 56.5-50(b).
In MSHA v. Texas Architectural Aggregates, Incorporated,
9 FMSHRC 1136 (June 1987), I affirmed a violation of section
57.SOSO(b), after finding that the development and installation of a noise barrier on a drill were not wholly out of
proportion to the resulting noise reduction benefits which
were achieved, and that the fact that the 5 dBA noise reduction with the use of the barrier did not bring the mine operator into total compliance with the permissible level stated
in the standard is no reason to excuse the use of the barrier
or from continuing to use personal hearing protection in conjunction with the barrier.
After careful consideration of all of the arguments presented in these proceedings, I conclude and find that MSHA has
the better part of the argument, and on the facts here presented, its position is correct. The respondent's reliance on
the ASARCO and Hilo Coast decisions, supra, are not well taken.

1057

The £acts in those cases are clearly distinguishable from
those presented in the instant proceedings. In those cases,
the citations were vacated because of a lack of any credible
evidence that feasible or economically achievable administrative or engineering noise controls were available for use by
the operators to reduce noise exposure. The credible evidence
presented in the instant cases establishes that the use of
mufflers were economically feasible for use on the equipment,
and that once installed, the noise levels were reduced.
The evidence establishes that after the installation of
the mufflers, the mixed noise exposure to the No. 1 haulage
truck operator was reduced from 100.3 dBA to 99.5 dBA; the
noise level exposure to the No. 2 truck haulage operator was
reduced from 99.3 dBA to 95.5 dBA; the noise exposure to the
front-end loader operator was reduced from 97.7 dBA to
95.9 dBA; the noise exposure to the jumbo drill operator was
reduced from 111 dBA to 105.9 dBA; the noise exposure to the
Wagner 2B loader operator was reduced from 93 dBA to 92.3 dBA;
and the noise exposure to the Scoopy No. 2 loader operator was
reduced from 98 dBA to 94.6 dBA.
Inspector Spruell confirmed that his noise level test
with a noise level meter recorded only the noise from the
jumbo drill because that was the only piece of equipment
operating at the time, and he did not test any of the jack
legs located in another heading because they were equipped
with mufflers and would be in compliance, and they were not in
operation when he tested the drill (Tr. 168-170). He also
confirmed that the noise level measurements taken by means of
the dosimeters measured the mixed noise exposure of each of
the other equipment operators in their respective work environments during the course of their work shifts. MSHA's noise
expert Brayden confirmed that exhaust noises emitted by the
machines in question are major contributors to the total noise
emitted by that equipment as well as to the total noise exposure from other sources, and that the use of the mufflers were
feasible engineering controls that reduced the total noise
exposure to a significant degree. In her unrebutted opinion,
the small noise decibel decreases which resulted from the
installation of the mufflers on the equipment translated into
a significant change in the amount of exhaust energy causing
noise damage, and that the use of mufflers reduces the noise
exposure significantly. Without the use of the mufflers on
the equipment, the employe~s would be exposed to a greater
degree of noise.
In view of the foregoing ~indings and conclusions, I conclude and £ind that the petitioner has established violations

luSB

for each of the noise citations in question by a preponderance
of the credible evidence adduced in these proceedings, and
they are all AFFIRMED.
Docket No. LAKE 87-85-M
Fact of Violation
In this case, the respondent is charged with a violation
of mandatory reporting standard 30 C.F.R. § 50.20, for failing
to report an eye injury to miner Joseph Clanton. The record
reflects that Mr. Clanton was exposed to hydrogen sulfide gas
while working underground on Thursday, April 30, 1987, and
that after corning to the surf ace at the end of his work shift
and exiting the mine, he experienced severe pain to his eyes
and went to see a doctor for treatment. Mr. Clanton did not
·work the following day, Friday, May 1, but did work on
Saturday, May 2. The respondent maintains that Mr. Clanton's
failure to report for work on May 1, was not due to his
injury, and the petitioner claims that it was.
Section 50.20Ca}, 30 C.F.R. § 50.20(a}, of the regulations provides:
(a) Each operator shall maintain at the
mine off ice a supply of MSHA Mine Accident,
Injury, and Illness Report Form 7000-1. These
may be obtained from MSHA Metal and Nonmetallic
Mine Health and Safety Subdistrict Offices and
from MSHA Coal Mine Health and Safety Subdistrict Offices. Each operator shall report each
accident, occupational injury, or occupational
illness at the mine. * * * The operator shall
mail completed forms to MSHA within ten working
days after an accident or occupational injury
occurs or an occupational illness is diagnosed.

*

*

*

*

*

*

*

Section 50.2(e) 30 C.F.R. § 50.2(e) states:
(e)
"Occupational injury" means any
injury to a miner which occurs at the mine for
which medical treatment is administered, or
which results in death or loss of consciousness, inability to perform all job duties on
any day after an injury, temporary assignment
to other duties, or transfer to another job.

1059

Section 50.2(g), 30 C.F.R. § 50.2Cg) states:
Cg>
"First aid" means one-time
treatment, and any follow-up visit for
observational purposes, of a minor injury.
The criteria for differentiating between medical treatment
and first aid is found in section 50.20-3. Medical treatment
includes, but is not limited to, the treatments and procedures
described in subsection (a). First aid is described as
follows:
First aid includes any one-time treatment, and
follow-up visit for the purpose of observation,
of minor injuries such as cuts, scratches,
first degree burns ana splinters. Ointments,
salves, antiseptics, and dressings to minor
injuries are considered to be first aid.
The criteria for treatment of eye injuries is found in
section 50.20-3(a)(5), which provides as follows:
(5) Eye Injuries.
Ci> First aid treatment is limited to irrigation, removal of
foreign material not imbedded in eye, and application of nonprescription medications. A precautionary visit (special examination) to a
physician is considered as first aid if treatment is limited to above items, and follow-up
visits if they are limited to observation only.
(ii) Medical treatment cases involve
removal of imbedded foreign objects, use of
prescription medications, or other professional
treatment.
MSHA's policy guidelines with respect to the reporting
requirements of Part 50, Title 30, Code of Federal Regulations, are found in MSHA Program Information Bulletin
No. 86-6C and 86-3M, December 11, 1986, (Exhibit R-1). These
guidelines provide in pertinent part as follows:
In some cases, an injured or ill employee
may miss one or more scheduled days or shifts
and it will be uncertain if the employee was
truly unable to work on the days missed. Situations may arise when a physician concludes that
the employee is able to work but the employee
feels that he or she is not able.
In such

1060

instances, the employer should make the final
judgment based on all available evidence.
Similarly, if a doctor tells the employee to
take time off and the company requests a second
opinion, and the second doctor says the
employee can return to work, it would be the
employer's decision as to when the employee was
able to return to work.
<Page 8).

*

*

*

*

*

*

*

Medically treated injuries are reportable.
First-aid injuries are not reportable provided
there are no lost workdays, restricted work
activity or transfer because of the injury.
Medical treatment does not include
first-aid treatment (one-time treatment and
subsequent observation of minor scratches,
cuts, burns, splinters, and so forth, which do
not ordinarily require medical care) even if it
was provided by a physician or a registered
professional person.

* * * It is not possible to list all types of
medical procedures and treatments and on that
basis alone determine whether first aid or
medical treatment was involved. The important
point to be stressed is that the decision as to
whether a case involves medical treatment
should be made on the basis of whether the case
normally would require medical treatment. The
decision cannot be made on the basis of who
treats the case. First aid can be administered
by a physician or another medical person and
medical treatment can be administered by someone other than a phydician.
(Page 9).
*

*

*

*

*

*

*

Prescription medication--Any use of
prescription medication normally constitutes
medical treatment. However, it should be
considered first aid when a single dose or
application of ~ prescription medication is
given on the first visit merely for the relief
of pain or as preventive treatment for a minor
injury. This situation may occur at facilities
having dispensaries stocked with prescription

1061

medications frequently used for preventive
treatment and relief of pain and attended by a
physician or a nurse operating under the standing orders of a physician. The administration
of nonprescription medication in similar circumstances would be considered first aid.
(Page
10).

*

*

*

*

*

*

*

Eye injuries. First-aid treatment is
limited to irrigation, removal of foreign material not imbedded in the eye, and application
of nonprescription medications. A precautionary diagnostic visit (special examination) to a
physician is considered as first aid if the
treatment is limited to the above items.
Follow-up visits are limited to observation
only. Medical treatment cases involve removal
of imbedded foreign objects, use of prescription medications, or other physician-type
treatment.
(Page 11).

*

*
23.

*

*

*

*

Q.

What are "days away from work" and how
are they calculated.

A.

"Days away from work" are days which
the employee would have worked but
could not because of an occupational
injury or an occupational illness.
* * * (Page 26).

*
47.

*

*

*

*

*

*

*

Q.

What is an occupational injury?

A.

An occupational injury is any injury
to an employee which occurs at a mine.
To be reportable, the injury must (1)
require medical treatment, or (2)
result in death or loss of
consciousness, or (3) result in the
inability of the injured person to
perform all of the job duties required
by the job on any day after the
injury, or (4) require the injured
person to be temporarily assigned to

1062

other duties, or (5) require the
injured person to be transferred to
another job, or (6) require the
injured person to be terminated.
(Page 32).

*
58.

*

*

*

*

*

*

Q.

Should an operator report questionable
injuries?

A.

Operators have an obligation to
investigate all injuries happening or
alleged to have happened on mine
property. After an investigation has
been completed, the operator must make
the determination as to whether the
incident is reportable to MSHA. If he
has any doubt, he should report.
If
the operator's conclusion is that no
incident occurred, then there is
nothing to report.
(Page 34).

Respondent's Arguments
The respondent maintains that the facts surrounding
Mr. Clanton's eye injury constitutes a "doubtful reporting
case," and in deciding whether or not to report such an
injury, it relied on the guideline information contained on
page 8 which allows a mine operator to make the final judgment
in situations of uncertainty. Based on all of the available
evidence at the time of the injury, respondent concludes that
the injury was not reportable.
In support of its position that the injury was not
reportable, the respondent points out that on the day of the
injury Mr. Clanton worked all day at his regular job as a
drillman, that his exposure to the gas did not hinder his
ability to perform his work that day, and that other employees
working in the same work environment did not file any reports
of injury and were present for work the following morning.
Referring to the Surgeon's Report dated May 5, 1987, (exhibit
P-2B), the respondent further points out that it states that
Mr. Clanton's eyes were congested, but that his vision was
intact and his lungs were clear, and that the treatment administered consisted of irrigating his eyes with sterile water
and an application of an ointment. Given this treatment, and
the fact that the report states that further treatment was not
needed, the respondent concludes that on the day of his visit

1063

to the doctor, Mr. Clanton had no vision damage, could see
normally, his lungs were unimpaired, and no medical reason is
stated in the report as to why Mr. Clantbn could not work.
Referring to a doctor's statement dated June 19, 1987,
(exhibit P-3), the respondent further points out that the
statement indicates that rather than reporting back to the
doctor on May 5, 1987, as instructed, Mr. Clanton returned the
day after his injury, May 1, 1987, without an appointment, and
his vision was intact and his eyes were clear. No symptoms or
conditions were cited that would have prevented Mr. Clanton
from reporting to work, and the doctor reported that
Mr. Clanton could work on Saturday, May 2, 1987. The respondent finds this unusual in that Saturday was not normally a
scheduled work day, but Mr. Clanton was aware that the mine
had been scheduled for work that day and by being released
that day he could and did in fact work at time and one-half
his normal rate. The respondent states that in most cases,
the doctor would have scheduled a reporting time as Monday
unless requested to do otherwise. Under these circumstances,
the respondent concludes that a prudent man would have to
assume that if all of the symptoms which gave rise to the
problem in the first place are gone, Mr. Clanton was fit, well
and able to ceturn to work on May 1, 1987.
Finally, the respondent asserts that according to
Mr. Clanton's own testimony during the hearing, he admitted
that he was not unable to work on Friday, May 1, 1987, but was
unwilling to do so and that he would not have returned to work
that day even if the doccor had told him to do so (Tr. 65-66).
The respondent points out that Mr. Clanton had previously been
disciplined by verbal and written reprimand for walking off
the job on two occasions in March and August, 1987, {exhibit
R-3), and that his demeanor and statements made during the
hearing reflects a hostile dislike for his job assignment, the
company, and authority in general. The respondent concludes
that Mr. Clanton's failure to report for work on May 1, 1987,
the day after his injury, was not the result of his injury,
but rather, a decision of his own which had no connection with
his injury. The respondent further concludes that
Mr. Clanton's injury was a "doubtful case" consisting of first
aid, and that the respondent exercised its discretion and
judgment in such cases in concluding that the injury did not
have to be reported (Tr. 139-140).
Petitioner's Arguments
During the course of the hearing, petitioner's counsel
asserted that Mr. Clanton lost a day of work on May 1, 1987,

1064

because of his eye injury. Counsel asserted that when
Mr. Clanton went to the doctor on April 30, he was treated and
told to come back the following Tuesday, May 5, and that the
doctor "was expecting that he wasn't going to work the following day." Although Mr. Clanton was feeling better and went
back to see the doctor on Friday, May 1, and the doctor found
that his eyes and vision were clear, the doctor did not tell
him to go to work that day and "considered that he shouldn't
go to work that Friday and go back to work on Saturday."
Since Mr. Clanton was unable to work on Friday, counsel concluded that his injury was reportable (Tr. 140-141).
In nis posthearing brief, petitioner's counsel argues
that Mr. Clanton's eye injury was a reportable occupational
injury because it required medical treatment and he was unable
to perform all of his job duties the day after his injury.
counsel cites the definition of "occupational injury" found in
section 50.2(e), which states that such an injury is one which
requires medical treatment or which results in the miner's
inability to perform all job duties on any day after an injury.
Counsel also cites the criteria for treating eye injuries
found in section 50.2-3(a)(5), which states that medical treatment cases involve the use of prescription medications.
Citing page 1315 of the Physicians Desk Reference,
42 Edition, 1988, published by Edward R. Barnhart, regarding
the decadron family or prescriptions for eye treatment, petitioner's counsel asserts that Mr. Clanton received prescription medication, that Neosporin Opt Ointment was prescribed
three times daily, and that in first aid treatment the doctor
does not prescribe medications with instructions for its continued use.
Counsel also cites the unrebutted testimony of
Mr. Clanton that the doctor told him not to work the day
following his injury (Tr. 56).
Finally, counsel dtates that the record establishes that
the respondent was familiar with MSHA's requirements for
reporting injuries, and in response to the respondent's "doubtful" case defense, points out that MSHA's policy guidelines
state that doubtful cases should be reported.
Findings and Conclusions
Inspector Spruell confirmed that he issued the citation
after reviewing the respondent's accident and injury records.
His review included an examination of a report prepared by
Mr. Clanton's supervisor K. E. Clanton, who is not related to
Mr. Clanton, and it was prepared on May 6, 1987 (exhibit P-2).
That report indicates that Mr. Clanton "lost 1 day 5-1-87."

1065

At the time the citation was issued, Mr. Spruell was unaware
of the fact that Mr. Clanton had received any medical treatment, but after speaking with him at a later time, he learned
from Mr. Clanton that he had been "blinded" by his exposure to
gas and had visited a doctor. Mr. Spruell also confirmed that
he reviewed a report filed by the respondent's accountant,
Mrs. E. L. Spivey on May 6, 1987, with the state workers' compensation office which indicated that Mr. Clanton's case was a
"lost workday case" (exhibit P-2-2D). In view of the fact
that the inspector could find no record that the respondent
had reported the injury to MSHA, he issued the citation. The
violation and citation were abated that same day after
Mrs. Spivey filled out the required MSHA Form 7000-1 (exhibit
P-2-2C).
Inspector Spruell confirmed that the respondent had never
been previously cited for failure to report accidents or
injuries, and with the exception of the citation which he
issued in this case, the respondent always maintained its
records current. He confirmed that Mrs. Spivey told him that
she had not filed the injury report in question because she
was not aware of the fact that all lost time injuries had to
be reported.
Mrs. Spivey was not called to testify in this case.
Although Mine Superintendent Pilcher acknowledged that MSHA's
guidelines require the reporting of "serious question" injury
cases, he took the position that Mr. Clanton's case was a
"first aid" type of injury case, rather than a medical treatment case, and that in hid judgment, the injury did not have
to be reported. He also believed that the guidelines we.re not
clear as to whether a "first aid" case needed to be reported,
and that Mr. Clanton's failure to work on the day after his
injury was unrelated to his injury, and that Mr. Clanton
simply did not wish to return to work.
Safety and Industrial Relations Inspector Dowling confirmed that no MSHA injury report was filed because it did not
appear that Mr. Clanton's case was a lost time accident case
pursuant to MSHA's guidelines. He believed that a first aid
situation establishes a "doubtful case" under MSHA's guidelines, and that in the exercise of its judgment not to report
the injury, the respondent acted properly and did not attempt
to hide anything from MSHA. Mr. Dowling could offer no
explanation as to why the forms executed by the respondent
which were reviewed by the inspector reflected "one lost day,"
nor could he recall whether he specifically discussed with
Mrs. Spivey the need to file a report with MSHA. Mr. Dowling
concluded that since no charges were received from the doctor

1066

for any prescription medicine, Mr. Clanton's injury was a
first aid case, and that he "probably" instructed Mrs. Spivey
not to file an MSHA report. Mr. Dowling confirmed that he did
not speak to the doctor, and that the doctor's statement of
June 19, 1987, was obtained to confirm Mr. Dowling's belief
that Mr. Clanton's case involved some reasonable doubt as to
whether his injury needed to be reported.
The evidence adduced in this case, including Mr. Clanton's
admissions, suggest that his eye condition had cleared up on
May 1, 1987, when he voluntarily returned to see the doctor,
and that he was able to return to work that day but chose not
to do so. There is no evidence other than Mr. Clanton's
self-serving statement, that the doctor ordered him not to
return to work that day. Given the fact that the doctor found
that Mr. Clanton's vision was intact and his eyes were clear on
May 1, and Mr. Clanton's admission that he was unwilling to
return to work regardless of his eye condition, and that he
would not have done so even if the doctor had specifically
cleared him for work that day, I cannot conclude that
Mr. Clanton was unable to perform his job duties that day, or
that his lost day of work was the direct result of his eye
injury.
Having viewed Mr. Clanton's demeanor and attitude toward
the respondent during his testimony, which indicates a dislike
for his general employment situation at the mine, I believe
Mr. Clanton's reluctance to return to work was based not only
on his fear of being further exposed to gas, but on his anger
toward the respondent. This anger prompted Mr. Clanton to
tell Mr. Pilcher and the office secretary that he would only
be back to work "when they got that place straightened out,
fit to work," and that he would not be back "until he got the
air cleared up, so it wouldn't hurt my eyes again" (Tr. 50,
65). As a matter of fact, Mr. Clanton admitted that he was
still angry about the incident, and that he intended to stay
off "until they got this condition abated" (Tr. 50-51). I
take note of the fact that although Mr. Clanton claimed that
he had been exposed to the same gas condition 2-days prior to
April 30, "when it got so I couldn't stand it," he did not
report any injuries on those days, and that "what I done, was
more or less to bring this to the attention to the Federal
agencies that working conditions were intolerable" (Tr. 50) . .
I also take note of the fact that Mr. Clanton returned to work
on Saturday, May 2, 1987, and received premium pay for that
day.
Although I have concluded that Mr. Clanton's lost dcy of
work on May 1, 1987, was not a direct result of his injury,

1067

this is not the sole determining factor as to whether or not
his eye injury which occurred the day before was required to
be reported to MSHA. The crucial question is whether or not
Mr. Clanton suffered a reportable occupational injury within
the meaning of MSHA's mandatory reporting regulations. An
"occupational injury" is defined as any injury which occurs at
the mine for which medical treatment is administered. The
term 11 injury 11 has been construed by the Commission as "an act
that damages, harms, or hurts," Freeman Mining Company,
6 FMSHRC 1577, 1578-1579 (July 1984).
In the instant case, Mr. Clanton's unrebutted testimony,
which I find credible, indicates that he suffered severe eye
pain and discomfort as a result of his exposure to hydrogen
sulfide gas while working at the mine, and promptly sought
treatment by going to the doctor. Under these circumstances,
I conclude and find that Mr. Clanton's eye condition was an
injury. The next question presented is whether or not the
treatment received by Mr. Clanton constituted medical treatment or first-aid. A medically treated injury is considered
to be a reportable occupational injury, regardless of any lost
work days, but a first-aid injury is reportable, provided
there are no lost workdays, restricted work activity or
transfer because of the injury.
With regard to the treatment of eye injuries, one factor
in determining whether such treatment is medical treatment or
first-aid treatment, is the use of prescription medication as
part of the treatment. The use of a prescription medication
is among the criteria for determining medical treatment, and
the application of nonprescription medication is included
among the criteria for determining first-aid treatment.
The evidence adduced in this case reflects that the treatment received by Mr. Clanton on April 30, 1987, for his eye
inflammation, or conjunctivitis, included the application of
Neodecadron Ophthalmic Ointment.
(See: Doctor's Report,
May 5, 1987, exhibit P-2-2-B). The doctor's report of June 19,
1987, also reflects that Mr. Clanton was treated with Neosporin
Opthalmic Ointment, three times daily, and contrary to
Mr. Dowling's assertion that no doctor's charges were received
for any prescription medication for Mr. Clanton, the hospital
bill apparently submitted to the respondent's insurance
carrier, includes an emergency room charge in the amount of
$14.25 ior deodecadron.
(See: exhibits P-3-3A and P-3-3C).
The Physicians Desk Reference, 42d Edition, 1988,
published by Edward R. Barnnart, cited by the petitioner in
its posthearing brief, is a standard reference source listing

1068

all prescription medications, and it is available at any
public library.
I take official notice of the information
contained in this reference source with respect to the medication administered to Mr. Clanton. Neosporin Ophthalmic
Ointment is listed at page 814 as a prescription medication,
and the prescribed application is every 3 or 4 hours within a
7-day period. Neodecadron Ophthalmic Ointment is listed at
page 1376 as a prescription medication, and the prescribed
application is "a thin coating 3 or 4 times daily."
Although Mr. Clanton could not recall receiving a written
prescription from the doctor for the medication in question,
it seems clear to me that prescription medication was in fact
used as part of his treatment, and the doctor's report of
June 19, 1987, reflects that the Neosporin ointment was to be
used three times daily. Mr. Clanton confirmed that after his
eyes were flushed out at the emergency room, the doctor put
some "salve" in his eyes and gave him the rest to use.
Mr. Clanton stated that "I smeared it in there one more time"
(Tr. 55).
MSHA's bulletin guidelines at page 10 state that the use
of prescription medication normally constitutes medical treatment, but that a single doze or application of a prescription
medication given on a first visit merely for the relief of
pain or as a preventive treat~ent for a minor injury should be
considered first aid.· The available evidence in this case
reflects that Mr. Clanton received more than a single dose of
the prescribed medication used for the treatment of his eye
injuries. Further, I find nothing in MSHA's regulatory definitions of "first-aid" or the criteria for the treatment of eye
injuries that even mentions or suggests single or multiple
doses of prescription medication.
In view of the foregoing, and after careful consideration
of all of the available evidence in this matter, I conclude
and find that Mr. Clanton's eye injuries constituted a reportable occupational injury, and that the treatment he received
for his condition constituted medical treatment rather than
first-aid treatment. I also conclude and find that the respondent's failure to report the injury in question constituted a
violation of cited section 50.20, and the citation is therefore AFFIRMED.
With regard to the respondent's "doubtful case" defense,
although one may agree that MSHA's guidelines concerning a
mine operator's judgment and discretion in determining whether
an employee's lost work day is attributable to an injury, the
introduction of the term "single dose" in the discussion of

1069

prescription medication, and the reference to ointments and
~alves as part of any first-aid treatment, without any
specific reference to whether they are prescription or nonprescription, are somewhat ambiguous, the guideline instruction
round on page 34 is not. It specifically states that a doubtlbl injury case should be reported. Under the circumstances,
!~reject the respondent's "doubtful case" theory as an absoiute defense to the citation, but have considered it in mitigation of the respondent's negligence.

~ignificant and Substantia1 Violation

~bise Citation No. 2865785
In this instance, Inspector Spruell made a finding that
the citation was significant and substantial. As a result of
His dosimeter noise test, he found that the jumbo drill operator was exposed to noise levels which exceeded the allowable
limit by 1,867 percent, which was equivalent to an 8-hour
exposure of 111 dBA's. The jumbo drill was equipped with a
left and right drill, one of which had a muffler installed,
while the other one did not. The sound level which the
inspector measured with a sound level meter while both drills
were in operation indicated that the drill operator was
exposed to continuous noise levels at 118 dBA's. The noise
exposure in both instances was well over the allowable limit
of 90 decibels.
A "significant and substantial" violation is described in
section 104(d)(l) of the Mine Act as a violation "of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. § 814(d)(l). A violation is properly
designated significant and substantial "if, based upon the
particular facts surrounding the violation there exists a rea~onable likelihood that the hazard contributed to will result
an injury or illness of a reasonably serious nature."
~~ment Division, National Gypsum Co., 3 FMSHRC 822, 825 (April
19 81) .

.H

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "signifidant and substantial" as follows:
In order to establish that a violation of
a mandatory safety standard is significant and

1070

iUll.

substantial under National Gypsum the Secretary
of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety-contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129, the Commission stated further as follows:
We have explained further that the third
element of the Mathies formula "requires that
the Secretary establish a reasonable likelihood
that the hazard contributed to will result in
an event in which there is an injury." U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance
with the language of section 104(d)(l), it is
the contribution of a violation to the cause
and effect of a hazard that must be significant
and substantial. U.S. Steel Mining Company,
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
St"eel Mining Company, Inc., 6 F~SHRC 1573,
1574-75 (July 1984).
The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Inspector Spruell's significant and substantial finding
was based on his belief that the noise levels to which the
drill operator was being exposed was such as to ma~e it reasonably likely that he would suffar some hearing loss. The
inspector made a gravity finding of "highly likely" and that a
"permanently disabling" injury of illness could reasonably be
expected because of the noise level exposure to the drill operator. Although Mr. Spruell stated on the face of the citation
that "personal hearing protection was being worn," he explained
that he made that statement to give the respondent the benefit
of the doubt since the drill operator was wearing protective
ear muffs most of the time. However, when he observed the

1071

drill operator with the drill in operation, he was not wearing
his personal ear protection.
MSHA's noise expert Brayden testified that although the
installation of the muffler on the drill reduced the operator's
noise exposure, the dosimeter reading of 1,867 percent of the
allowable noise exposure would indicate that the operator was
losing his hearing to a significant degree even if he were to
wear his ear muffs all day. In her opinion, the drill operator
would need to wear ear plugs as well as ear muffs to protect
his hearing.
In view of the unrebutted testimony of Inspector Spruell
and Ms. Brayden, which I find credible and probative, I conclude and find that the noise exposure levels to which the
drill operator was being exposed presented a hazard to his
hearing capability, and that such noise level exposures would
reasonably likely contribute to a serious loss of hearing.
Accordingly, the inspector's significant and substantial finding IS AFFIRMED.
History of Prior Violations
MSHA's civil penalty assessment computer print-out for
the respondent's Annabel Lee Mine for the period May 28, 1985
to May 27, 1987, reflects that the respondent paid penalty
assessments in the amount of $94 for three section 104(a) citations (exhibit P-4). The computer print-out for the Denton
Mine for the period June 17, 1985 to June 16, 1987, reflects
civil penalty assessment payments in the amount of $74 for two
section 104(a) citations. I conclude and find that the respondent has a good compliance record, and I have taken this into
consideration in the civil penalties assessed for the violations which have been affirmed in these proceedings.
Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in Business
The parties stipulated that the respondent's Denton and
Annabel Lee Mines are small mining operations, and I adopt
these stipulations as my findings on this issue. The parties
also stipulated that the proposed civil penalty assessments
for the violations in question will not adversely affect the
respondent's ability to continue in business. I find and
conclude that the payment of the civil penalty assessments for
the violations which have been affirmed in these proceedings
will not adversely affect the respondent's ability to continue
in business.

1072

Good Faith Compliance
The record establishes that all of the violations were
timely abated in good faith by the respondent.
I have taken
this into consideration in the assessments made for the violations in question.
Negligence
I conclude and find that all of the violations which have
been affirmed in these proceedings resulted from the respondent's failure to exercise reasonable care. Accordingly, I
adopt the inspector's moderate negligence findings with
respect to all of the citations as my negligence findings and
conclusions on this issue.

Gravity
With the exceptiop of "S&S" noise Citation No. 2865785,
the inspector found that all of the remaining noise citations
were non-"S&S", and that any injury or illness would be
unlikely. They were all assessed as "single penalty" citations. He made the same findings for reporting Citation
No. 2865780. I concur in these findings, and find that with
the exception of "S&S" noise Citation No. 2865785, which I
find was serious, the remaining violations were non-serious
and not likely to result in any serious injuries.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llO(i) of
the Act, I conclude that the following civil penalty assessments are reasonable and appropriate for the violations which
have been affirmed in these proceedings:
Docket No. LAKE 88-4-M
Citation No.
2865757
2865758
2865759
2865785

Date

30 C.F.R. Section

Assessment

05/28/87
05/28/87
05/28/87
05/28/87

57.5050(b)
57.5050(b)
57.5050(b)
57.5050

$ 20
$ 20
$ 20
$ 85

1073

Docket No. LAKE 88-22-M
Citation No.
3058584
3059585

Date

30 C.F.R. Section

Assessment

06/17/87
06/17/87

57.5050Cb)
57.5050(b)

$ 20
$ 20

30 C.F.R. Section

Assessment

Docket No. LAKE 87-85-M
Citation No.
2865780

Date
05/27/87

50.20

$ 20

ORDER
The respondent IS ORDERED tq pay the civil penalties
assessed in these proceedings within thirty (30) days of these
decisions and orders. Upon receipt of payment by the petitioner, these proceedings are dismissed.

/t~d~~
Gelorge/,i. Koutras
Administrative Law Judge

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S.
Department of Labor, 230 South Dearborn Street, 8th Floor,
Chicago, IL 60604 (Certified Mail)
Vic A. Evans, General Manager, and T. M. Dowling, Safety and
Industrial Relations Director, Ozark-Mahoning Company, P.O.
Box 57, Rosiclare, IL 69282 (Certified Mail)

/f b

1074

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

AUG 191988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 88-83-M
A.C. No. 15-00104-05518

v.

V Quarry

KEN-MOR STONE, INC.,
Respondent
DECISION
Appearances:

Before:

Anne T. Knauff, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, TN ,
for Petitioner;
H. Davis Sledd, Esq., Lexington, KY, for Respondent

Judge Fauver

This civil penalty case went to hearing on July 12, 1988, at
Lexington, Kentucky. After the hearing, the parties had a
settlement conference and proposed a settlement reducing the
proposed penalty from $500 to $450 and modifying Citation/Order
No. 2861409 to delete the allegation of a "significant and
substantial" violation.
This decision confirms the bench decision approving the
settlement at the close of the hearing.
ORDER
WHEREFORE IT IS ORDERED that the motion for approval of
settlement is GRANTED and Respondent shall pay the approved
penalty of $450 within 30 days of this decision.

lt)~>-fwv~

William Fah~er
Administrative Law Judge

Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
H. Davis Sledd, Esq., wyatt, Tarrant & Combs, 1100 Kincaid
Towers, Lexington, KY 40508

1075

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

AUG 191988
GARY L. McCURDY,
Complainant
v.
HELVETIA COAL COMPANY,
Respondent

DISCRIMINATION PROCEEDING
Docket No. PENN 88-254-D
MSHA Case No. PITT CD 88-16
Lucerne No. 6 Mine

ORDER OF DISMISSAL
Before:

Judge Koutras

By letter received August 12, 1988, Complainant Gary L.
Mccurdy, states that he no longer wishes to pursue this matter.
Under the circumstances, this case IS DISMISSED.

/_£/_,,A//?~
{ft~~outras

·
Administrative Law Judge

Distribution:
Mr. Gary L. Mccurdy, 163 Coy Street, Homer City, PA 15748
(Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, Professional Corporation,
57th Floor, 600 Grant Street, Pittsburgh, PA 15219
(Certified Mail)
/fb

1076

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

AUG 191988
ARNOLD SHARP,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. KENT 88-109-D
MSHA Case No. BARB CD 87-53

BIG ELK CREEK COAL COMPANY,
Respondent

No. 1 Surface

DECISION
Appearances:

Robin Webb, Esq., Hazard, Kentucky, for the
Complainant;
Edwin s. Hopson, Esq., Wyatt, Tarrant & Combs,
Louisville, Kentucky, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed
by the complainant against the respondent pursuant to section
105(c) of the Federal Mine Safety and Health Act of 1977. The
complainant filed an initial complaint with the Secretary of
Labor, Mine Safety and Health Administration (MSHA), Hazard,
Kentucky, Sub-district Office, on September 14, 1987. In a
signed statement executed by the complainant on that date, he
made the following claims of alleged discrimination:
I feel that I have been discriminated by
Big Elk Creek Coal Co., Inc., in that Judge
Fauver order Big Elk Creek Coal Co., Inc., to
reinstate me to the same position I had held
prior to filing Discrimination Case No.
BARB-CD-86-49, at the same rate of pay, status
and all other benefits, as I would have attained
had I n.ot been discharged on May 28, 1986.
Before my discharge on May 28, 1986, I was a
rock truck driver working the day shift and
making $9.50 per hour. Since my reinstatement
on September 8, 1987, I have been doing common

1077

labor. jobs (helping mechanic, helding oiler,
cleaning up around the mine} on the night shift
making $8.00 per hour. At the time I was
reinstated, there was a rock truck driver position open, but they hired another man for that
job.
I have also asked management about my
annual refresher training, newly-employed,
experienced miner training and new task training. All management would say was they would
see about it.
I have not received any type training in
the last 15 months.
The Secretary of Labor, Mine Safety and Health Administration, conducted an investigation of the complaint and found no
evidence of discrimination. The complainant was advised of this
decision by letter dated April 4, 1988, and he filed his pro se
complaint with the Commission.
In a letter filed with the-- ~
Commission on April 12, 1988, the complainant alleged that as a
result of his prior discharge by the respondent, his work record
and ability to continue employment as a rock driver have been
"destroyed," that his credit standing has been adversely affected,
and that he has suffered certain unspecified "damages" for which
he seeks compensation.
The respondent filed a timely answer denying that it _has
discriminated against the complainant. The respondent asserted
that the complaint fails to state a claim upon relief can be
granted under the Act, and it took the position that some or all
of the allegations made by the complainant were settled or
resolved in connection with a prior case involving these same
parties. See: Arnold Sharp v. Big Elk Creek Coal Co., Inc.
9 FMSHRC 1261 (July 1987) , decision by Judge William Fauver on
July 22, 1987; 9 FMSHRC 1668 (September 1987}, Supplemental
Decision issued by Judge Fauver on September 15, 1987; and
9 FMSHRC 1822 (October 1987}, Final Order issued by Judge Fauver.
A hearing was convened in Pikeville, Kentucky on August 10,
1988, and the parties appeared pursuant to notice. Although the
complainant filed his complaint pro se, he subsequently retained
counsel to represent him approximately 10-days prior to the
commencement of the hearing.

1078

Discussion
Prior to the taking of any testimony in this case, counsel
for the parties requested an opportunity to confer with each
other, and it was granted.
In addition, a pretrial conference
was conducted to address the issues and remedial claims raised
by the complainant. During these discussions, respondent's
counsel reasserted his prior claim that the complainant was
attempting to relitigate matters which were before Judge Fauver
in the prior case, and that these matters were resolved by a
prior settlement between the parties. As an example, respondent's counsel pointed out that contrary to the complainant's
claim, he is in fact employed by the respondent as a truck
driver, at the prevailing mine wage rate, and that his present
employment status is in compliance with the terms of the prior
settlement and Judge Fauver's Supplemental Decision of
September 15, 1987.
During the course of the pretrial conference, the complainant stated that he has filed at least one separate additional discrimination complaint against the respondent (Tr. 7).
At the conclusion of the conference, complainant's counsel
requested to withdraw the instant complaint, and stated that
"we plan to proceed on in other avenues" (Tr. 6). Respondent's
counsel did not object to the request to withdraw the complaint,
and it was granted from the bench (Tr. 6).
ORDER
The complainant's request to withdraw his complaint IS
GRANTED, and this case IS DISMISSED.

/,I//
' / / -_/---- /(}/~/
/>tJ'/r/{::1,t,,,.. K~u tr as
-~//

AdmiKistrative Law Judge
Distribution:
Robin Webb, Esq., P.O. Box 1528, Hazard, KY 41701 (Certified Mail)
Edwin S. Hopson, Esq., Wyatt, Tarrant & Combs, 2600 Citizens
Plaza, Louisville, KY .40202 (Certified Mail)
/fb

1079

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

BALTAZAR MADRID,
Complainant

AUG 191988

DISCRIMINATION PROCEEDING
Docket No. WEST 87-170-D
DENV CD 87-2

v.

Sunnyside No. 2 Mine

KAISER COAL CORPORATION,
Respondent

DECISION
Appearances:

Dave Maggio and Don Huitt, East Carbon City, Utah,
for Complainant;
Jathan Janove, Esq., and Diane Banks, Esq., Fabian
and Clendenin, Salt Lake City, Utah,
for Respondent.

Before:

Judge Lasher

This proceeding arises under Section 105(c)(3) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
~' (1982> (herein the Act).
Complainant's initial complaint
with the Labor Department's Mine Safety and Health Administration
(MSHA) under Section 105(c)(2) of the Act was dismissed.
Contentions of the Parties.
Complainant Madrid, in his complaint with MSHA (Ex. D-16)
alleged:
Since September of 1970 I have been e.'llployed at the Kaiser
Coal Corp. mines (formerly known as Kaiser Steel Corp.) as
a surface employee.
On October 31, 1986 management
illegally laid me off for lack of training. A summary of
this discriminatory action follows:
On October 22, 1986 the management of Kaiser Coal Corp. of
Sunnyside had a reduction and realignment of the workforce.
At this time I was informed that I would be realigned as an
underground tirnberman.
I expressed my concern about lack of
training for underground work. Later I was informed that I
would be given the 40 hours new miner training before going
underground and in the meantime I was to be given a job as a
tipple utilityrnan. ~/

±I

Although this allegation implies that the assignment to the
tipple utilityman job was temporary, the evidence of record
indicates that Madrid did not want to be assigned underground and
that the tipple assignment was, as of October 24, permanent (Ex.
D-11, T. 110, 132-136, 137, 145, 154, 157).

1 () Q()

Management on October 23, 1986 told me that I was scheduled
to start my training on October 27, 1986 at the College of
Eastern Utah in Price, Utah and until then was to work as a
tipple utilityman.
On October 24, 1986 management wrote me a letter informing
me that I would not be going to the 40 hour training but
would be left on the tipple.
On October 31, 1986 Kaiser Coal Corp. of Sunnyside had yet
another reduction and realignment of the workforce and at
this time I was told that there was no available jobs on
the surface and I didn't have the training to work underground so I was to be laid off.
Thus, Madrid, a lineman (a surface position), contends that
on October 31, 1986, Kaiser illegally laid him off "for lack of
(underground) training." In his post-hearing brief, this contention is expanded: "They openly discriminated by not providing
Mr. Madrid his forty (40) hours training under Section 115 2/ of
the Act and by so doing, broke the law again under 105(c) of the
Same Act." In terms of discriminatory motivation, Madrid contends that "Kaiser did not want to provide training to anyone
including (himself)". Complainant Madrid referred to the
decision in Secretary and UMWA v. Kitt Energy Corporation, 8
FMSHRC 1342, (September .1986; ALJ) at the hearing CT. 37, 155) as

2/

Section 115, relating to "Mandatory Health and Safety
in pertinent part provides:

~raining",

Ca) Each operator of a coal or other mine shall have a
health and safety training program which shall be approved
by the Secretary. The Secretary shall promulgate regulations with respect to such health and safety training
programs not more than 180 days after the effective date of
the Federal Mine Safety and Health Amendments Act of 1977.
Each training program approved by the Secretary shall provide as a minimum that" ( l) new miners having no underground mining experience
shall receive no less than 40 hours of training if they
are to work underground.
Such training shall include instruction in the statutory rights of miners and their
representatives under this Act, use of the self-rescue
device and use of respiratory devices, hazard recognition,
escapeways, and walk around training, emergency procedures, basic ventilation, basic roof control, electrical hazards, first aid, and the health and safety aspects
of the task to which he will be assigned.

1081

supportive of his position. As will be discussed subsequently,
this decision was recently reversed by the Federal Mine Safety
and Health Review Commission (herein Commission).
Respondent Kaiser denies that the 40-hour underground
training requirement of the Act's Section llS(a) is a right
guaranteed by § 105Cc) to miners who would otherwise be laid off
3/ and contends that even if it were, Madrid failed to establish
a prima facie case of discrimination. Kaiser maintains that its
decision to layoff Madrid resulted from its understanding that
Madrid lacked the 45-day underground working experience required
by Article XVI of its Labor Agreement and had nothing to do with
the 40-hour training requirement of the Act.
Kaiser also
maintains inter alia that Madrid did not complain about or
attempt to exercise a right under the Act until approximately 3
weeks after he was laid off; that the complaint that was made by
Madrid was for the purpose of keeping himself in his surface job;
that Madrid engaged in no "protected activity"; that it (Kaiser)
had no hostility toward the 40-hour training requirement; and
that Madrid by choosing to remain on the surface opted for the
more desirable surface work over the job security that would have
resulted had he sought underground positions.
Findings
Complainant, Baltazar Madrid, age 49 at the time of hearing,
was hired by Kaiser on Sept~nber 9, 1970 CT. 46, 134-136), and
until October, 1986, was so employed as a lineman ---as
distinguished from electrician CT. 173-174, 183-185, 207, 209,
239, 243-245, 299). The lineman position is on the surface-- as
distinguished from an underground position-- and Mr. Madrid
normally worked the dayshift CT. 54, 105, 236, 246). Mr. Madrid,
throughout his employment with Kaiser as well as a previous
6nployer was a lineman and he did not attempt to obtain an
underground classification even though this would have helped
protect him against a layoff in a reduction-in-force CT. 105-107,
134-138, 269-270).
Kaiser underwent two separate layoffs (sometimes referred to
as realignments, reductions-in-force, or RIFs) in October, 1986,
the first on October 22 and the second on October 31 CT. 93-94,
99).
On October 22, 58 employees were laid off and 40 were
realigned to other jobs.
On October 31, 46 more employees were
laid off and 23 more realigned (Exs. D-1, D-2; T. 205). Kaiser's
total hourly workforce was reduced from 262 to 158 employees by
these 2 RIFs.

ll

Subsequent to filing of briefs the Commission's decision on
review in Kitt Energy, 10 FMSHRC
(July 15, 1988) issued
which sustained this view.

1082

At the subject mine, surface jobs are generally considered
more desirable than underground positions CT. 101, 132).
In the October 22 layoff, Madrid was not laid off but was
assigned (realigned> to an underground position --timbe~an-- and
he immediately CT. 190-191) filed a grievance alleging that
Kaiser had no right to eliminate his surface position as lineman
CT. 101, 131, 261-262).
The record clearly indicates that Mr.
Madrid was opposed to working underground CT. 53-54, 63, 104,
131, 137, 145,· 191, 262) and complained that he had insufficient
underground experience CT. 190-193; Ex. D-1, p. 4).
Mr. Madrid testified:

Q. If you can have your choice, you'll stay on the surface?
A. Sure.
Q. And at the time you filed a grievance saying that lineman
job was improperly eliminated; right?
A. Right.

Q. And your goal at that time was to renain as a lineman on
the surf ace?
A. sure.

Q. Now, after you were realigned to tipple, okay, but before
you were laid off, you didn't complain to anyone, did you, ·that
you should have stayed as a timberman as opposed to a tipple
utility man?
A. No, I didn't.
CT. 54).
After Madrid filed the grievance (after the October 22
layoff and before the October 31 layoff), Jack w. Roberts,
Kaiser's Manager of Human Resources, reviewed Madrid's file and
work experience and determined that a mistake had been made in
assigning Madrid underground to the timberman position since such
records indicated Madrid had not previously worked underground (T.
101, 102, 104-105, 112, 131-132, 136).
According to Roberts, who was the person responsible for
realigning employees during the layoffs CT. 95-97, 138, 257),
placing Madrid underground after the first-- October 22-- layoff
contravened Article 16 CXVI) of the union contract since Madrid

1083

did not, according to his records, have 45 days under4round
experience CT. 102-103, 112, 115, 134-136, 138-142). _/
After Mr. Roberts determined that Mr. Madrid's grievance had
validity insofar as Mr. Madrid did not have suitable underground
experience CT. 100, 140, 145) and should not have been assigned
underground, Mr. Roberts allowed Madrid to bump to the position
of tipple utilityman on the surface which had the effect of
replacing an employee with less seniority who held such
position--- one Willie Naranjo. ~/ Naranjo, who had underground
experience (T. 106-107, 154), was moved to the timberrnan position
which Madrid did not want (T. 101-109, 129-130, 133). Moving
Madrid to Naranjo's surface position at this time was adverse to '
Naranjo CT. 106, 132).
4/ Thus, Article XVI, Section Cf) of the National Bituminous
Coal Wage Agreement of 1984 (Ex. P-12) governing the labor
relationship between Kaiser and UMWA at all times material
herein, provided:
New Inexperienced Employees at Underground Mines
No new inexperienced Employee in an underground mine hired
after the date of this Agreement with less than forty-five
(45) working days prior underground mining experience shall
operate any mining ~achines at the face, or work on or
operate any transportation equipment, mobile equipment or
medium or high voltage electricity. All such new Employees
shall always work in sight and sound of another Employee
for a period of forty-five C45) days.
During this period
the new Employee shall be classified as a Trainee in order
to permit him to gain maximum familiarity with the work of
the mine as a whole, but to minimize exposure to hazards
until more extensive experience in underground mining is
achieved. At the end of the forty-five (45) working day
period, he shall be eligible to bid on any vacancy that
arises. Nothing in this section shall authorize any
practice more permissive than that established by any applicable law or prior custom and practice.
~/
Thus, following Madrid's objection and Robert's re-evaluation
of his underground experience, the following letter (Ex. D-11) to
Madrid from Kaiser's General Manager, C.W. McGlothlin, Jr., dated
October 24, 1986, was hand delivered to Madrid on the same date:
Dear Balt:
It has been determined that you did not have the ability
to step into and perform the work of available jobs at the
time of the 10-22-86 layoff. Therefore, in accordance with

1084

At the hearing, Madrid in some 9ontradiction to his original
objection to being assigned underground, claimed that he had
sufficient underground service (T. 286), although such account
was extremely general (T. 50) and the amount of such time and the
dates thereof are not subject to determination because of such
vagueness.
The arbitrator, in his decision rejecting Mr. Madrid's
grievances (Ex. D-1), incisively explained why Madrid's claim of
45 working days underground should be rejected:
The second reason advanced by the Union as to the nonapplicabili ty of Article XVI, Section (f) to the grievant
was the claim that he actually had 45 working days prior
underground mining experience over the course of his many
years working as a surface Employee, and he would therefore
not have to be classified ~s a Trainee if he worked underground. While the Maintenance Supervisor disputed many of
the particular underground work assignments that the
grievant claimed to have participated in, the weight of the
evidence here was to the effect that, on a cumulative basis
over the course of his 16 years at the mine, all of the individual hours on different days, when added together,
would amount to 45 days sent underground.
The question,
however, is whether it is proper to consider that kind of
work experience as _meeting the requirements of Article XVI,
Section (f).
In my view, the contractual requirement of 45
working days prior underground mining experience is not met
in such a casual manner.
Crediting an hour or two here
and there, along with some eight hour days which may be
separated by weeks, months or even years, so as to add up to
a total of 45 days, when there is not indication that there
was ever any briefing on such things as the. underground
facilities, the procedures for entering and leaving the
mine, the procedures regarding the transportation of Emfn. 5 continued
Article XVII, Section (c) you are realigned to the job of
Tipple Utilityman.
Please report to Jim Eaquinto on Monday,
October 27, 1986, for day shift.
Madrid never actually worked in the timberman position
underground, and he worked on the surface for the 2-day interim
period between the "mistaken" timberman assignment and his bumping into Naranjo's utilityman position (T. 106, 112, 133, 145,
191, 228-230).

1085

ployees and materials, the escape and emergency evacuation
plans, a review of the mine map and the location of abandoned and dangerous areas, instructions in the use, care and
maintenance of the applicable self-rescue device, instructions in the detection of methane, or any of the
hazards or dangers peculiar to the underground operations,
seems to be so inconsistent with the recognition that the
health and safety of the Employees are the highest
priorities of the parties and with their expressed agreement
that the establishment of effective training programs was
essential to the safe and efficient production of coal that
it would defeat the intent of the parties in establishing
minimum standards for the training of Employees who are inexperienced when it comes to the peculiar hazards of underground mining.
It is apparent that the. grievant here did
not consider himself an experienced underground Employee,
even though he had gone underground on a number of occasions
over the course of his many years at the mine.
He was the
one who first expressed his concern about his lack of training for underground work when he was realigned to a timberman position at the time of the first layoff and realignment
on October 22, 1986, and the Company agreed with him that it
was a mistake to have put him in an underground position.
Such a casual and almost accidental or unintentional acquisition of the status of an experienced underground miner
is so at odds with ·the intent and purpose of the safety and
training provisions of the contract, provisions which were
put into the contract at the Union's urging and for which
the Union fought long and hard, that such a result could
not have been intended.
(emphasis added)
The arbitrator concluded:
Working on the surf ace does not expose an Employee to
the same dangers as working underground, and the surface
Employee does not get the kind of first-hand knowledge that
the parties wanted Employees assigned underground to have
before they worked on their own.
I have no doubt that the grievant here had the necessary
skill and the physical ability to perform the job duties of
a timberman, but at the same time I believe that he has to
be considered a anew inexperienced Employee within the meaning of Article XVI, Section Cf) of the contract.
That
necessarily means that he would have to be classified as a
Trainee during the first 45 days he was assigned to work
underground and could not be classified as a Timberman and
assigned to perform all of the duties of a timberman.
The
contract itself precludes his being considered as having

1086

the present ability to step into and perform all of the
duties of any underground job except that of Trainee. The
Company's failure to recall him to the tirnberman job on
December 15, 1986 therefore would not be considered a violation of his seniority rights, and his grievance claiming
such a violation must consequently be denied.
Mr. Roberts described the decision-making process which led
to Mr. Madrid's being laid off in the October 31 RIF as follows:
A. Well, we went through the same procedure, and that was
before he couldn't be considered for underground jobs because he hadn't worked underground. The job that he was
put on, unfortunately, the tipple utility job, was being
reduced.
There were two jobs and they eliminated one. The
other man was senior to Mr. Madrid, so, as a consequence,
he was the one eliminated.
Well, what we did, again, he was not able to take any of
the underground jobs, so we started with the least senior
person still working on the surf ace and went back up the
line to see if we could find a job that he could do where
he was senior to the person holding that job. And there was
no such job. As a consequence, he was laid off.
CT. 118-119).
According to Mr. Roberts and other Kaiser management
witnesses, even if Mr. Madrid had, or had been given, the
40-hours training required by the Act, he could not have been
placed underground because of the 45-day underground work
requirement of Sectio.n XVI< f) of the Wage Agreement ( T. 120,
139-140, 147, 151, 165, 267).
Members of Kaiser management, including Roberts and the
operations manager, did not know that there was to be a second
RIF on October 31, 1986, until several days after the October 22
RIF (T. 101-107, 132, 258).
When Madrid was first realigned to the underground timberman
position in the October 22 reduction, management intended to give
him the 40-hour training required by the Act (T. 197, 259-261).
After Madrid was laid off on October 31, 1986, he did not,
for 3 weeks, list the timberman position on the "panel form"
required under the Wage Agreement which would have entitled him
to consideration for assignment to that position in the event of
recall (T. 109-110, 156-157, 263). Under Article XVII (c) of the
Wage Agreement, a laid-off employee is required to fill out a
standard form within 5 days after being laid off, and among other
things, indicate the "jobs he is able to perform and for which he
wishes to be recalled." From such information, the Employer
prepares a "panel" form.
Thus Art. XVII(d) provides:

1087

Employees who are idle because of a reduction in the working
force shall be placed on a panel from which they' shall be
returned to employment on the basis of seniority as outlined
in section Ca). A panel.member shall be considered for
every job which he has listed on his layoff form as one to
which he wishes to be recalled.
Each panel member may revise his panel form once a year.
Management officials held a meeting prior to each of the 2
layoffs to implement such CT. 257-258).
In the second meeting
for the October 31 layoff, which .was held Cl) after Madrid had
filed his grievance, C2) protested going underground in the
timberman's position, and C3) had been reassigned to the tipple
utilityman position on the surface, the application of the 45-day
underground working experience requirement of the Wage Agreement
came up.
This process was described by Kaiser's Operations
Manager, Ronald o. Huges as follows:
A.
It was brought up that as we went through the people
had been displaced, there was a tipple utility position
that was reduced; therefore, Balt had to be realigned once
again.
When we came to Balt's position in the seniority
roster, the only position that was available was underground
timberman's position, and it came up then that Balt was not,
by contract, a trained miner; therefore, he went to the
layoff.
Q.
Now, in this meeting or any other time prior to the
layoff, was the point made that he did have 45 days working
experience, as required by Article 16?

A.

That he did have?

Q.

That he did have.

A.

No.

Q.
Throughout the period of time up to his layoff, what
was your understanding as to whether he did or did not have
experience?
A.
I'd understood that he did not have the underground
experience.
CT. 264)

The record indicates and it is found that Madrid did not
have the 45 days of underground experience contemplated and
required by the Wage Agreement and this was Kaiser's basis and
business justification for laying him off in the October 31 RIF
and for not realigning him to an underground position at that
time ahead of others having such experience.

1088

Discussion
In order to establish a prima facie case of prohibited
discrimination under Section 105(c) of the Act, a complainant
bears the burden of proving Cl) that he engaged in protected
activity and (2) that the adverse action complained of was
motivated in any part by that activity. Secretary on behalf of
David Fasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(October 1980), rev'd on other grounds sub nom. Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on
behalf of Thomas Robinette v. United Castle Coal Co., 3 FMSHRC
803, 817-18 (April 1981). see also Eastern Assoc. Coal Corp. v.
FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987), Donovan v. Stafford
Constr. Co., 732 F.2d 954, 958-59 CD.C. Cir. 1984); Boich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically
approving Commission's Fasula-Robinette test). Cf. NLRB v.
Transportation Management Corp., 462 U.S. 393, 397-413 Cl983)
(approving nearly identical test under National Labor Relations
Act.)
If the complainant does not establish that he engaged in a
protected activity, the discrimination complaint must fail.
The
insistence of a complainant on the right to be provided training
is activity protected by the Act.
Thus, the question arises
whether under the Mine Act Complainant Madrid had a protected
right to the training a~ issue here.
In Peabody Coal Co., 7 FMSHRC 1357, 1363 (September 1985),
and Jim Walter Resources, 7 FMSHRC 1348 (September 1985), aff'd
sub~ Brock v. Peabody Coal Co., 822 F.2d 1134 (D.C. Cir.
1987), the Commission concluded that mine operator policies to
bypass for rehire laid-off individuals because those individuals
lacked current safety and health training required by the Mine
Act did not constituted discrimination under the Mine Act. The
Commission determined that Section 115 of the Act grants training
rights to "new miners" and that laid-off individuals do not
become entitled to the training rights of Section 115 until they
are rehired as miners. Thus, since there is no statutory right
to operator--provided training for those on lay off status, an
operator's refusal to rehire a laid-off individual due to lack of
required training does not violate the Mine Act.
In Peabody and in Jim Walter the Commission stressed that
the Mine Act is a health and safety statute, not an employment
statute. The Commission noted that in enacting Section 115
Congress was concerned with preventing "the presence of miners
••• in a dangerous mine environment who have not had ••. training
in self-preservation and safety practices." S. Rep. No. 181,
95th Cong., 1st Sess. 50 (1977), reprinted in Senate Subcommittee

1089

on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act of
1977, at 637-38 (1978).
The Commission determined that the
rights of particular laid-off individuals to recall, including
the extent to which an operator can favor for recall fully
trained persons over persons with greater length of service,
properly are within the sphere of collective bargaining and
arbitration.
7 FMSHRC at 1364; 7 FMSHRC at 1354.
As noted hereinabove, contrary to the position asserted by
Complainant Madrid that he enjoyed a statutory or legal right to
the 40-hour underground training referred to in Section 115 of
the Act which purportedly would have entitled him to realignment
to an underground position after the October 31, 1986 layoff, the
Commission's recent decision in Kitt Energy, supra, emphasizes
that a mine operator in implementing a reduction-in-force is not
in violation of the discrimination provisions of the Act by not
placing surface miners in underground positions where they failed
to meet the underground experience requirements of Section 115,
and by placing in such underground positions persons who by
training or experience fully met Section 115 requirements.
Thus,
in pertinent part the Commission held:
We recognize that the complainants in the instant case,
unlike the complainants in Peabody, were "miners" at the
time the alleged act of discrimination occurred. This
distinction, however, does not require a different result
because in the crucial and controlling respect, this case
and Peabody are the same.
In both cases, the operator chose
for placement in underground mining positions persons who
by training or experience fully met the training requ1rement
of Section 115 of the Act and the Secretary's implementing
regulations.
In placing trained miners underground the
operator did not violate the language of the Mine Act or
the safety and health objectives of the training requirements.
To the contrary, the Act's purpose was fulfilled.
In addition, no miner was discharged or otherwise discriminated against either because of a refusal to work without
having the required training or because of a withdrawal
from the mine pursuant to an order issued by the Secretary
under Section 104(g) of the Act due to a lack of training.
See 822 F.2d at 1147.
In sum, the Secretary's argument
that Section 115 of the Mine Act mandates that "training
neutral" employment decisions be made by mine operators is
just as wide of the mark in the present situation as it
was in Peabody, and must be rejected here for the same
reasons.
In order to reach the result argued for by the Secretary
and the UMWA, we would be required to go beyond the Act
and examine the Wage Agreement.
It is not the Commission's

1090

province, .however, to in.terpret the rights and obligations
mandated by the Act through an interpretation of a private
contractual agreement unless required to do so by the Act
itself. Peabody, supra, 7 FMSHRC at 1364. In holding that
the complainants as "miners" had the right to whatever
training was required to continue their employment, the
judge misperceived the proper focus of Section 115. To require an operator to train miners for underground work so
that they, rather than other miners, would have the opportunity for continued employment would transform Section 115
from a health and safety provision to an employment provision.
This type of employment issue is appropriately
resolved through the collective bargaining and grievance
and arbitration process.
Indeed, the issue of the validity
of Kitt's experienced miner policy was pursued through the
contractual grievance process and Kitt's position was
upheld.
Kaiser's witnesses, including Roberts who was the member of
management primarily responsible for realignment and layoff
decisions in the RIFs, convincingly established that the
motivation for not placing Madrid in an underground position
after the October 31 layoff was because of the application of the
45-day underground experience requirement of the Wage Agreement-not the Mine Act's 40-hour training requirement. 6/ Mr. Madrid
was actually assigned underground after the f irst-RIF on October
22, at which time his objective to remain as a lineman on the
surface became clear.
He immediately filed a grievance and
raised the question as to his qualifications in terms of
underground experience to work underground.
At this time, .at his
own instance, he was placed in the tipple utilityman position on
the surface--bumping another miner from such position. When this
transaction took place the record is clear that management had no
knowledge or indication that a second RIF was coming on October
31. Complainant failed to establish by the preponderance of the
reliable and substantive evidence of record that Kaiser was
~/

There is no persuasive or probative evidence in the record
that Kaiser attempted to avoid the training requirements of
Section 115. Contrary to Complainant's contention in this regard, i.e., that Kaiser removed Madrid from the timberman
position to avoid such 40-hour training, when Kaiser realigned
him to timberman after the October 22 RIF, it clearly planned to
arrange for Madrid to receive such training CT. 48-49, 56, 104,
116, 190-192, 197, 229-231, 259-261).
There is no evidence of
Kaiser management being antagonistic to the Mine Act's training
requirement or that management personnel or other employees were
advised to avoid or ignore such requirements (Ex. D-4, T. 57,
172-173, 196-197, 230, 233-234, 260).

1091

motivated in its actions vis a vis Madrid from either hostility
to the Act's training requirements or other discriminatory frame
of mind. "!_!
It is concluded that Complainant did not establish a
violation under Section 105(c) of the Act and that the Complaint
herein is without merit.
ORDER
Complainant having failed to establish Mine Act discrimination en the part of Respondent, his complaint is DISMISSED.

~~;6.. c.~ ?I· ~?<'.d;,~ fi.

Michael A. Lasher, Jr.
Administrative Law Judge

21

Although at the hearing Madrid raised the question that one
member of management, Pete Palacios, an outside Surface Superintendent, may have seen the layoffs as a means of retaliating
against Madrid, there was no nexus established between any such
purported animosity on Palacios' part and any safety activity on
Madrid's part or connection to the Act's training requirements.
A}ain, the record is clear that Palacios played no part in the
personnel decisions (layoffs and realignments) made during the
subject October RIFs.
Distribution:
~r.

Baltazar Madrid, P.O. Box 646, East.Carbon City, UT
(Certified Mail)

84520

Mr. Dave Maggio, Recording Secretary, United Coal Mine Workers,
Local 9958, and Mr. Don Huitt, P.O. Box 275, East Carbon City, UT
84520 (Certified Mail)
Jathan Janove, Esq., Diane Banks, Esq., Fabian & Clendenin, 215
So~th State Street, Suite 1200, Salt Lake City, UT
84111
(Certified Mail)

/bls

1092

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

·AUG 191988
. CIVIL PENALTY PROCEEDINGS

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

Docket No. VA 88-9
A.C. No. 44-04517-03595

v.
Docket No. VA 88-10
A.C. No. 44-04517-03596

GARDEN CREEK POCAHONTAS
COMPANY,
Res ponde_n t

Docket No. VA 88-11
A.C. No. 44-04517-03598
Virginia Pocahontas No. 6 Mine
DECISION

Appearances:

Mary K. Spencer, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia for
Petitioner;
•
Marshall s. Peace, Esq., Assistant General Counsel,
Island Creek Corporation, Lexington, Kentucky for
Respondent.

Before: Judge Melick
These cases are before me upon the petitions for civil
penalties filed by the Secretary of Labor pursuant to section
l05Cd) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et seq., the "Act," charging the Garden Creek
Pocahontas Company (Garden Creek) with 18 violations of the
regulatory standard at 30 C.F.R § 50.20Ca> for the failure to
report certain alleged occupational injuries to the Federal Mine
Safety and Health Administration (MSHA). The general issue before
me is whether Garden Creek violated the cited regulatory standard
in any of these cases, and, if so, the appropriate civil penalty to
be assessed in accordance with section llO(i) of the Act.
At hearing the Secretary moved for the approval of a
settlement agreement with respect to four of the citations at bar,
Citation Nos. 2758998, 2759549, 2759650, and 2759655. She has
submitted sufficient information to show that the proffered
settlement is appropriate under the criteria set forth in section
llO(i) of the Act. Accordingly an order will be incorporated in
this decision approving the proposed settlement and directing
payment of $80 in penalties for the cited violations.
The specific issue before me in the 14 remaining citations is
whether the injuries suffered by the miners were "occupational

1093

injuries" ~hich Garden Creek was required to report to MSHA
pursuant to the regulatory standard at 30 C.F.R. § 50.20(a).
standard provides in relevant part as follows:

That

Each operator shall maintain at the mine off ice a supply
of MSHA mine accident injury and illness report form
7000-1 ••• each operator shall report each accident,
occupational injury or occupational illness at the mine
••• the operator shall mail completed forms to MSHA
within 10 working days after an accident or occupational
injury odcurs or an occupational illness is diagnosed.
The specific facts surrounding the alleged violations are not
in substantial dispute and are set forth below:
Citation No. 2758999
Miner Leonard Mitchell was injured at the No. 6 Mine on
September 14, 1987. He was attempting to lift a heavy object when
he strained something in his lower eight side. As a result of this
injury Mitchell visited a physician who diagnosed abdominal muscle
strain, prescribed Flexeril 10 mga., Ca muscle relaxer), and
applied heat to the affected area.
Citation No. 2759648
Miner Van E. Smith was injured at the No. 6 Mine on January 8,
1987. He was apparently beating on a rock dust hose to loosen
clogged dust, and accidentally got rock dust in his eye. As a
result of this injury Smith visited a physician who diagnosed
chemical conjunctivities in the left eye. The physician prescribed
Poly-Pred for several days.
Citation No. 2759651
Miner Jerry L. Barrett was injured at the No. 6 Mine on March
3, 1987. Barrett had bent over to pick up an object that was
frozen to the ground and injured his shoulder. As a result of this
injury Barrett visited a physician who diagnosed right
intrascapular strain, and prescribed Soma Compound Ca pain reliever
and muscle relaxer} and Darvocet Ca pain reliever).·
Citation No. 2759652
Miner Phillip Keene was injured at the No. 6 Mine on March 10,
1987. Keene was tightening a bolt using his foot for leverage, and
sprained his right knee. As a result of this injury Keene visited
a physician who diagnosed right knee sprain, wrapped the knee in an
Ace bandage and prescribed Motrin (a pain reliever).
Citation No. 2759653

1094

Miner Kenneth R. Hicks ~as injured at the No. 6 Mine on March
10, 1987. Hicks was attempting to lift a heavy object when he felt
a pain in his right chest. As a result of this injury Hicks
visited a physician who diagnosed musculoskeletal strain of the
chest wall, took an x-ray, and prescribed Tylenol No. 3 Ca pain
reliever) and Soma Compound Ca muscle relaxer and pain reliever).
Citation No. 2759654
Miner Bobby L. Richardson was injured at the No. 6 Mine on
March 16, 1987. Richardson was attempting to remove a pipe from
machinery when the pipe came loose and crushed his left index
finger. As a result of this injury Richardson visited a physician
who diagnosed a crushing injury to the left index finger, took an
x-ray, cleaned and bandaged the finger, applied a cold pack, and
prescribed Darvocet Ca pain reliever). Richardson had the
prescription filled and used the medication.
Citation No. 2759657
Miner David Crouse was injured on May 5, 1987 at the No. 6
Mine. Crouse accidently struck the back of his left hand with a
hammer. As a result of this injury Crouse visited a physician who
diagnosed a contusion of the left wrist and hand. The physician
took an x-ray of the hand and prescribed Motrin C a pain reliever).
Crouse had the prescription. filled and used the medication.
Citation No. 2759659
Miner Randall F. Skeens was injured at the No. 6 Mine on June
24, 1987. As Skeens was exiting a bus he strained his back. As a
result of this injury Skeens visited a physician who diagnosed
musculo-skeletal strain. The doctor recommended rest, application
of a heating pad, and prescribed Flexeril Ca muscle relaxer).
Citation No. 2759658
Miner Larry D. Hale was injured at the No. 6 Mine on May 8,
1987. Hale was attempting to return a rock dust car onto the
track with a bar when he strained his back. As a result of this
injury Hale visited a physician who diagnosed acute· lumbosacral
strain and prescribed Soma Compound Ca pain reliever and muscle
relaxer).
Citation No. 2288707
Miner Linda Lester was injured at the. No. 6 Mine on February
5, 1987. Lester was lifting cribs overhead to hand them to a miner
standing on a ladder ana strained her back. Lester visited a
doctor as a result of this injury. The doctor diagnosed left
paralumbar muscle strain, recommended a heating pad and rest, and
prescribed Nalfon 600 mg. C a pain reliever).

1095

Citation No. 2288708
Miner Billy R. Lester was injured at the No. 6 Mine on May 20,
1987. Lester had lifted a bucket and felt a sharp pain in his left
shoulder. As a result of this injury Lester visited a doctor who
diagnosed a sprain of the left shoulder, gave Lester a steroid
injection and prescribed Motrin Ca pain reliever). Lester had the
prescription filled and used the medication.
Citation No. 2288709
Miner Clarence Auville was injured on May 12, 1987 at the No.
6 Mine. Auville apparently was lifting a motor when he developed
pains in his right side. As a result of this injury Auville
visited a physician who diagnosed acute back strain, x-rayed
Auville, and prescribed Flexeril Ca muscle relaxer).
Citation No. 2288711
Miner Michael J. Lester was injured at the No. 6 Mine on
September 1, 1987. While Lester was riding in a mine buggy he hit
his head against the canopy and sustained a neck injury. As a
result of the injury Lester visited a doctor who diagnosed a
contusion to the head, severe sprain of the neck, and an axial
compression injury of the neck. Lester was "given therapy" and was
also x-rayed and given a prescription for valium Ca medication for
management of "anxiety disorders" and also for the relief of
skeletal muscle spasm).
Citation No. 2759660
Miner Harvey Keith Keene was injured at the No. 6 Mine on June
22, 1987. Keene was lifting a bucket and apparently pulled a
groin muscle. As a result of this injury Keene visited a doctor
who diagnosed acute right groin muscle strain and applied an ice
pack compress on the injured area with directions to apply a warm
compress after 24 hours. The doctor prescribed Valium (a
medication for management of "anxiety disorders" and for relief of
skeletal muscle spasms).
The parties also agreed to the following stipulations:
With regard to each of the subject citations, the injury
referred to in the body of the citation was to a miner
and occurred at a mine, for the purposes of 30 C.F.R. §
50.2(e).
With regard to each of the subject citations, the
medication referred to in the body of the citation was a
prescription medication; a written prescription for that
medication was given to the individual by a physician
during the course of an office visit.

1096

With regard to Citation Nos. 2759654 and 2759657 (Docket
No. VA 88-9), and Citation No. 2288708 (Docket No. VA
88-11), it is stipulated that the prescription was filled
and the medication was taken by the individual to whom it
was prescribed.
The injuries referred to in each citation were not in
fact reported to MSHA within 10 working days of
occurrence, pursuant to 30 C.F.R. §§ 50.20 and 50.20-1.
Respondent abated each violation by completing MSHA Form
7000-1 entitled "Mine Accident, Injury, and Illness
Report," and mailing it to MSHA.
MSHA Guidelines (government Exhibit Nos. 15 and 16) from
1980 and 1986 constitute MSHA's interpretations of the
Part 50 regulatory reporting requirements.
The injuries referred to in the subject citation, if they
are in fact reportable, would be reportable as a result
of the use of a prescription medication and not for any
other medical reason.
As previously noted, 30 C.F.R. § 50.20(a) requires a mine
operator to mail a report for each "occupational injury" to MSHA
within ten days after the injury occurs. The regulation at
30 C.F.R. § 50.2(e) defines the term "occupational injury" as
"any injury to a miner which occurs at a mine for which medical
treatment is administered or which results in death or loss of
consciousness, inability to perform all job duties on any day after
injury, temporary assignment to other duties, or transfer to
another job".
"Medical treatment" which, if administered, renders an injury
an "occupational injury" and thus reportable to MSHA, is
distinguished from "first aid" at 30 C.F.R. § 50.20-3(a):
Ca) Medical trea~ment includes, but is not limited to,
the suturing of any wound, treatment of fractures,
application of a cast or other professional means of
immobilizing an injured part of the body, treatment of
infection arising out of an injury, treatment of bruise
by the drainage of blood, surgical removal of dead or
damaged skin Cdebridement), amputation or permanent loss
of use of any part of the body, treatment of second and
third degree burns. Procedures which are diagnostic in
nature are not considered. by themselves to constitute
medical treatment. Visits to a physician, physical
e~aminations, x-ray examinations and hospitalization for
observation, where no evidence of injury of illness is
found and no medical treatment given, do not in
themselves constitute medical treatment.
Procedures
which are preventive in nature also are not considered by

1097

:r

themselves to constitute medical treatment. Tetanus and
flu shots are considered preventative in nature. First
aid includes any one time treatment and follow-up visit
for the purpose of observation of minor injuries such as
cuts, scratches, first degree burns and splinters.
Ointments, salves, antiseptic, and dressing to minor
injuries are considered to be first aid.
It is not disputed in these cases that the medications noted
in each of the 14 remaining citations was a medication for which a
prescription was written during the course of a visit to a
physician's office.
The Secretary maintains that she has consistently construed
the term "medical treatment" to include cases where a prescription
medication is used, except where "a single dose or application of a
prescription medication is given on the first visit merely for
relief of pain or as a preventive treatment for a minor injury."
According to the Secretary this interpretation was initially
articulated in a 1980 Information Report on Part 50, of her
regulations and was reiterated in a 1986 revision of the Report
(Ex. G-15 and G-16).
The Secretary observes that section 50.20-3(a) provides that
medical treatment includes, but is not limited to, the examples
given. The regulation provides that " .•• [v]isits to a physician,
physical examinations, x-ray examinations .•. do not in themselves
constitute medical treatment ••. where no evidence of injury or
illness is found •.• ". The Secretary notes that the physicians here
rendered a specific diagnosis of injury and, as a result of the
injury, prescribed medication. She also observes that none of the
charges in the citations at bar fall within the "single-dose"
exception.
If the Secretary's proffered interpretation of the cited
standard is applied hereto (i.e. the 1980 Information Report on
part 50 and the 1986 revision of the report) then the use of the
prescribed medication would no doubt constitute "medical treatment"
within the meaning of part 50 and render the injury an
"occupational injury" reportable to MSHA under the provisions of 30
C.F.R. § 50.20(a). The Secretary maintains that her-views on this
interpretation of her regulations are entitled to controlling
weight unless plainly erroneous or inconsistent with the
regulation, citing Eula v. Tallman 380 U.S. 1 (1965) and Brock v.
Cathedral Bluffs ShaTe<5il Co., 796 F.2d 533, (D.C. Cir. 1986), as
authority.
Garden Creek argues on the other hand that the Secretary's
proffered interpretation of the term "medical treatment" is indeed
inconsistent with her regulations and accordingly should not be
given any weight. This argument is premised on the fact that the
regulations, at section 50.20-3, explicitly set forth only one
situation (in the case of eye injuries) in which the use of

1098

prescription medication in itself constitutes "medical treatment".
According to the Garden Creek argument, it may therefore reasonably ·
be inferred that MSHA considered and rejected the inclusion of the · . :,
use of other prescription medications alone as sufficient to
constitute "medical treatment" for any other injury. Garden Creek
further argues that MSHA has attempted to improperly expand the
scope of her regulations through the use of an "informational
report" and, implicitly, the procedural requirements for the
promulgation of regulations set forth in Section lOlCa) of the Act
and in sec:tion 553 of the Administrative. Procedure Act·:·
~.

·.'··1""-

The Respondent's position is clearly the more persuasive.
Under the doctrine expressio unius est exclusio alterius, the
specific mention of one thing in a statute or regulation implies
the exclusion of other things not mentioned. Public Service Co of
Colorado v. FERC, 754 F2d 1555 (10th Cir. 1985); Tom v. Sutton,
533 F2d 1101--c9'th Cir. 1976); See also Sutherland S"t'at Const. §
47.23 and§ 31.06 (4th Ed). In section 50.20-3(a)(5)(ii) the
Secretary has stated in plain and unambiguous language that
treatment of only one specific type oi injury Ci.e. eye injuries)
by use of a prescription medicine would constitue "medical
treatment" of that injury within the meaning of Part 50. Thus by
specifically mentioning in her regulations tha_t the treatment of
eye injuries by use of a prescription medicine constitutes "medical
treatment" for purposes of the Part 50 reporting requirements, the
Secretary has implicitly excluded the treatment of all other
injuries by use of prescription medicine alone from the term
"medical treatment" under Part 50.
The Secretary's attempted amendment.through "informational
reports" is thus clearly erroneous and inconsistent with her
regulations. Such an amendment must comport with the procedural
requirements of section 101Ca> of the Mine Act and Section 553 of
the Administrative Procedure Act. Since the Secretary has conceded
that the injuries referred to in the citations would be reportable
under Part 50 only because of the use of a prescription medication
and for no other reason it is clear that all of the remaining 14
citations except Ci tat ion No. 2759 648, must fail.
-~
Citation No. 2759648 is unique in that it involves an eye
injury for which a prescription was written. Under section
50.20-3(a) (5)(ii) "medical treatment" for eye injuries includes
removal of imbedded foreign objects, the use of prescription
medications or other professional treatment. In this case the
evidence shows that a miner, Van Smith, suffered an eye injury at
the No. 6 Mine on January 8, 1987, while beating on a rock dtist
hose. As a result of this injury Smith visited a physician who
diagnosed chemical conjuntivities of the left eye and prescribed
Poly-Pred.
·
·
·
Respondent argues however that in accordance with the
regulatory language the Secretary has the burden of proving that a
prescription medication was actually used by the miner and that the

1099

Secretary has failed in her burden in that regard. In support of
its position, Respondent notes that although it has been stipulated
that the prescription in this case, Poly-Pred, was written by the
physician the evidence does not show that the miner actually used
the medication. Indeed the evidence shows that this miner did not
seek reimbursement for this prescription pursuant to his insurance
coverage.
The Secretary argues that it may nevertheless be inferred that
the medicine was used on the basis that the prescription was
written by the physician. However an inference cannot be raised
from a proven fact unless a rational connection exists between such
fact and the ultimate fact presumed. Moreover an inference may not
be drawn from one occurrence to another that is not specifically
connected merely because the two resemble each other, but must be
linked by the chain of cause and effect and common experience. See
29 Am Jur 2d Evidence § 162. There is no such linkage here and the
proposed inference cannot therefore be made. I therefore conclude
that the Secretary has not met her burden of proving that the
prescriptive medicine was actually used in this case. Even
assuming, arguendo, that the inference were permitted, I find that
this evidence would in any event be outweighed by the infeience of
non-use arising from the failure of the miner to have applied for
reimbursement for purchase of the prescription. Accordingly
Citation No. 2759648 must in any case be vacated for insufficient
evidence.
ORDER
...

Citation Nos. 2758998, 2759549, 2759650, and 2759655 are
affirmed. Garden Creek Pocahontas Company is directed to pay a
civil penalty of $80 with 30 days of this decision. Citation Nos.
2758999, 2759648, 2759651, 2759652, 2759653, 2759654, 2759657,
2759658, 2759659, 2288707, 2288708, 2288709,
88711, and~2759660
are vacated.
~

!1

t,/ ~

I

'

Gary Me ick
Adminis rative
( 703) 7 '6-6261
1
1

A-\./'
Judge

Distribution:

~ary K. S~en~er·, Esq., Office of the Solicitor, 4015 Wilson
Boulevard, Room 516, Arlingto11, VA

22203 (Certified Mail)

MarshAll s. ·Peace, Esq., P~O. Box 11430, Lexington, KY
(Certified Mail)
nt

1100

40575

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

AUG 221988
CHARLES H. SISK,
. DISCRIMINATION PROCEEDING
Complainant
Docket No. KENT 87-212-D
v.
: MADI CD-87-3
..
E. R. MINING, INC.,
D.B.A. E. R. TRUCKING, CO.,
Respondent

. Charolais No. 1 Mine

DECISION
Appearances:

Daniel N. Thomas, Esq., Thomas & Ison, P.S.C.,
Hopkinsville, Kentucky for Complainant;
Pam Corbin, Esq., Little & Corbin, Madisonville,
Kentucky.for Respondent.

Before: Judge Melick
This case is before me upon the complaint by Charles H. Sisk
under section 105Cc)(3) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801 et seq., the "Act," alleging that he was
discharged by E. R. Mining, Inc., CE.R.) in September 1986 in
violation of section 105Cc)(l) of the Act.~/
!/section. 105(c)(l) of the Act provides as follows:
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
minar, 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 representative of miners or
applicant for employment has instituted or caused to be
instituted any proceedings 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.
1101

In order to establish a prima facie violation of
section lOS<c>Cl) Mr. Sisk must prove· by a preponderance of the
evidence that he engaged in an activity protected by that section
and that his discharge was motivated in any part by that
protected activity. Secretary on behalf of Pasula v.
Consolidation Coal Co. 2 FMSHRC 2786 (1980) rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 C3rd cir:-1981); Secretary on behalf of Robinette v. United
castle Coal Co., 3 FMSHRC 803 (1981). A miners "work refusal"
is protected under section 105Cc) of the Act if the miner has a
good faith, reasonable belief in the existence of a hazardous
condition. Miller v. FMSHRC, 687 F.2d 194 (7th Cir. 1982);
Robinette, supra. The case law addressing work refusals also
contemplates some form of conduct or communication manifesting an
actual refusal to work. See e.g. Sammons v. Mine Services Co., 6
FMSHRC 1391 (1984).
In this case the Complainant, Mr. Sisk, alleges that on
September 23, 1986, at approximately 4:00 p.m. he was fired for
refusing to operate a truck which he considered unsafe in that it
purportedly had no brakes.
The evidence shows that after his arrival at work around
4:00 p.m., on September 23, 1986, Mr. Sisk asked contract
mechanic Bill Rider to adjust the brakes on one of the haulage
trucks. Adjusting the brakes on these trucks is relatively
aimple, requires only 5 to 10 minutes and is a procedure that
many of the drivers perform themselves. According to Rider, Sisk
knew or should have known because of his experience as a truck
driver, of the simplicity and brevity of the procedure. As Rider
was nearly finished adjusting the brakes on the one truck Sisk
reappeared, told Rider that he was working on the wrong truck and
asked Rider to then adjust the brakes on another truck identified
as "Uke 51". Rider responded that he would "get to it in a
minute". According to Rider, Sisk was "loud and abrasive" used
profanity and was "awfull ill" toward him. Rider completed the
brake adjustment on truck No. 51 in about 10 minutes but Sisk
never returned.
Although Rider believed that the brakes on truck No. 51
needed no adjustment he nevertheless tightened them to satisfy
Sisk. He observed that the truck had been driven the previous
Saturday, Monday and earlier that same day and he received no

1102

complaints about the brakes. Rider concluded moreover that Sisk
could not have known the condition of the brakes that afternoon
because he had not yet even driven the truck.
According to the joint stipulations of fact submitted in
this case, upon being told by Rider that he would complete the
brake adjustment on the first truck before proceeding to the
second truck, the Complainant n1ost his temper and began
complaining to Tommy Beddow [the day shift foreman] in a loud and
excited voice about working conditions, including the conditions
of the brakes." Ac~ording to the stipulations the following then
occurred:
Claimant left the area in which Mr. Rider was working
and approached Tommy Beddow, complaining that the
brakes were bad on the spare truck but instead of
working on it, Mr. Rider was working on another truck.
Claimant told Tonuny Beddow that, in the condition that
the brakes were in, the risk existed that he could run
the spare truck into a piece of equipment or an
employee because of his inability to stop it. Claimant
was loud and abrasive in his speech toward Tommy Beddow
and as he did not want claimant operating the spare
truck in the mood that he was in, claimant then went to
talk to mine superintendent, Jimmy Beddow, and he sent
claimant home. Claimant asked him if he were to return
the next day and Mr. Beddow told him that he would be
contacted. Claimant was discharged on
September 25, 1986.
Thomas Beddow testified that he had just emerged from the
pit area upon completion of the first shift and pulled up to the
truck area when Sisk began complaining angrily that Rider was
adjusting the brakes on the wrong truck. Sisk was in a "bad
mood" and was "pretty upset". Sisk yelled at Beddow that he was
"going to kill somebody" if he had to run the truck without
brakes and Beddow yelled oack "well don't get in it and don't run
it". According to Beddow, Sisk never refused to drive the
haulage truck but suddenly drove off in his own truck. Beddow
claims that he neither fired Sisk nor told him to go home. He
assumed that by driving off the job Sisk just quit.
Later, Mine Superintendent James Beddow reported that Sisk
had asked him if he was to return to work the next day as if
there was no other work for him that day. A day or so later
there was meeting at which James Beddow told Sisk he was "not
going to have someone tell him when and how to operate his
business." According to Thomas Beddow, Sisk had a bad attitude,

1103

would drive .the trucks too fast, would "drowse-off" on the job,
and was frequently "run down and tired" apparently from working
two jobs.
James Beddow testified that Sisk was "an average worker" but
often drove too fast, would sleep on the job and was generally
worn out. According to Beddow, Sisk did not wait long enough to
find out what other work was to be done but rather was already
prepared to leave the job. James Beddow met with Sisk on the
25th of September and then discharged him primarily because of
Sisk's "attitude with his employees". Beddow did not want Sisk
to "get away with" talking to his employees and supervisors in an
abusive manner.
Sisk testified that under normal preoperation procedures the
drivers test the brakes on the way to the pit. If the brakes are
then working properly management would be asked to adjust them.
Because of a tire blow-out on his regular truck (No. 56) a week
earlier, Sisk had been assigned truck No. 51. Sisk claims that
he had driven truck No. 51 the previous Friday, Saturday and
Monday, and found that "there weren't any brakes on it".
According to Sisk, truck No. 51 had on three prior occasions
backed over the edge of the pit area because of inadequate brakes.
He purportedly complained of this to both of the Beddow brothers.
Sisk also claims that on the day before the 23rd the brakes were
still inadequate.
On September 23rd, Sisk was at the job site a few minutes
before his 4:00 p.m. shift. Sisk says that he asked Rider to
adjust the brakes on one truck nut later realized it was the
wrong truck. Rider told him he would adjust the brakes on the
second truck in "just a minute." Sisk nevertheless complained to
Beddow that the adjustment would not help even though the brakes
were admittedly out oi adjustment. Sisk maintains that he told
Beddows that he "really did not want to run the truck until the
brakes were fixed" but does not claim that he was told to drive
the truck before the adjustment. Tommy Beddow reportedly then
told him to get "the hell out of here and don't come back" Sisk
did not ask for alternative work. When he reappeared for the
meeting on September 25th, Tommy Beddow said "he could not have
anybody tell him how to run his business and needed a man who
would give him 100 percent".
Sisk testified that he had never been insubordinate but
admitted talking in a loud voice because he was purportedly
wearing ear plugs. On cross examination Sisk admitted that it
was'company policy to note any problems on your vehicle on your
time card or tell management of the problem. He claims that he

1104

did not follow this procedure on September 22nd because no action
had been taken on his reporting a defective tire on truck No. 56
and he did not believe it would do any good. He also claims that
management was told about the defective brakes so there was no
reason to write it down. Sisk explained that on September 23rd he
thought an adjustment of the brakes on truck 51 would however
correct the problem.
According to Roy Poole, Sisk's supervisor on the second
shift, truck No. 51 was to be checked out by Sisk before it was
operated and if any problems developed the procedure would be
to report them to Poole. Sisk never did report any brake
problems to Poole nor to anyone else between September 20 and
September 23. Poole denied that Sisk had had any problems
backing into soft ground at the pit area around this time but
rather those problems had occured when he first started on the
job months earlier.
Poole was also at the job site on Tuesday, September 23rd,
before the shift began. He directed Sisk to drive truck No. 51
and Sisk asked if he could drive one of the other trucks. Poole
advised Sisk that "just because you are a senior man you don't
get to drive somebody elses truck." According to Poole, Sisk was
cursing and preceded to the area where Rider was working. Poole
later again talked to Sisk and Sisk again requested to drive
another truck. Poole acknowledged that truck No. 56 was a better
truck with better brakes and a better engine but that it was then
being repaired. Poole testified that Sisk never complained
about truck No. 51 being unsafe but complained that it was "a
damn pile of junk". Poole had had problems with Sisk sleeping on
the job and noted that he was often completely exhausted. On
occasion he had to remind Sisk to slow down.
Within this framework it is apparent that there is not even
sufficient evidence to show that the Complainant engaged in a
work refusal. According to the credible testimony of the day
shift foreman, Thomas Beddow, Sisk angrily approached him as the
second shift was about to begin on September 23rd, and complained
that the mechanic was adjusting the brakes on the wrong truck.
At one point Sisk, yelled at Beddow that he was going kill
somebody if he drove the truck and Beddow responded--"well don't
get in it and don't run it". Shortly thereafter and without
determining whether the brakes on his assigned truck had been
adjusted Sisk just drove off the premises in his own truck.
In any event, even assuming, arguendo, that Sisk did refuse
to drive the subject truck it is clear that he could not have
then entertained either a reasonable or a good faith belief that

1105

it would have been hazardous to do so. Sisk admitted that it was
standard company procedure for the drivers to test the brakes on
any vehicle on the way to the pit and at that point if they were
not working properly management would be asked to correct the
problem. It is undisputed in this case that not only had Sisk
not yet driven the truck that day in accordance with normal
brake test procedures but that he had not checked the subject
brakes in any way.
Moreover Sisk had asked the mechanic to adjust those brakes
and the mechanic had agreed to do so. Rather than wait until the
brakes had been adjusted and tested, Sisk prematurely confronted
Thomas Beddow with his complaints. This led to a heated exchange
and Sisk's voluntary departure from the mine site. Sisk could
not, however, have then entertained either a good faith or a
reasonable belief that the truck would have been hazardous to
drive since he had not tested the brakes and the brake adjustment
had not been completed at the time of his alleged work refusal.
Under the circumstances Sisk has not established a prima
facie violation of section 105(c)(l) of the Act and this case
must therefore be dismissed.
ORDER

\

Docket No. KENT 87-212-D is he eby dismissed.

\1

ary Melick
Admini~trative

Judge

(703) \56-6261

\

Distribution

Daniel N. Thomas, Esq., Thomas and Ison, P.S.C., 1302 South Main
Street, P.O. Box 675, Hopkinsville, KY 42240 (Certified Mail)
Pam Corbin, Esq., Little & Corbin, 161 Sugg Street, Madisonville,
KY 42431 ccertified Mail>
nt

1106

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

August 22, 1988

TROY W. CONWAY, SR.,
Complainant

DISCRIMINATION

PROCEEDI~G

Docket No. KENT 88-128-D
MADI CD 88-03

v•

PEABODY COAL COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Merlin

On May 4, 1988, you filed with this Commission a complaint
of discrimination under section 105{c) of the Federal Mine Safety
and Health Act of 1977. On June 15, 1988 a show cause order was
issued directing you to provide information regarding your
complaint or show good reason for your failure to do so. The
show cause was mailed to you certified mail, return receipt
requested and the file contains the signed receipt card ·showing
you received the show cause order. You have however, not
responded and complied with the show cause order.
Accordingly, this case is DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Mr. Troy W. Conway, Sr., Route 3, Sturgis, KY
Mai 1 )

42459 (Certified

Peabody Coal Company, 68-H, R.R. #1, Waverly, KY
(Certified Mail)
I g1

1107

42462

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

AUG 261988
SECRE'rARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
MICHAEL L. PRICE AND
JOE JOHN V.l\CHA,
Complainants

DISCRIMINATION PROCEEDING
Docket No.

SE 87-128-D

No• 4 Mine

v.
JIM WALTER RESOURCES, INC.,
Respondent
and
UNITED MINE WORKERS OF
AMERICA ( UMWA),
Intervenor
SUPPLEMENTAL DECISION
Appearances:

Before:

Frederick W. Moncrief, Esq., and Tho~as A.
Mascolino, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Secretary of Labor and Complainants;
Robert K. Spotswood, Esq., and John W. Hargrove,
Esq., Bradley, Arant, Rose & White, Birmingham,
Alabama, for Respondent; Robert H. Stropp, Esq.,
and Patrick Nakamura, Esq., Stropp & Nakamura,
Birmingham, Alabama, for Intervenor, and
Complainants.

Judge Broderick

On July 13, 1988, I issued a decision on the merits in this
case in which I concluded that comolainants Michael L. Price and
Joe John Vacha were discharged by Jim Walter Resources Inc. (JWR)
in violation of section 105(c) of the Federal Mine Safety and
Health Act of 1977. I ordered the reinstatement of Price and
Vacha t6 the positions from which they were discharged on
March 2, 1987.
I also ordered JWR to pay back wages and other
benefits to Price and Vacha fro1n March 3, 1987, until the date of
their reinstatement with interest. I directed counsel to attempt
to agree upon the amounts due complainants under this order.
On August 19, 1988, the parties filed a joint submission in
which they agreed on the amounts due under my order as back pay

1108

and miscellaneous expenses to each of the claimants. The parties
disagree as to whether complainants are entitled to one hour's
pay for the time spent after the completion of their shift on
March 2, 1987, when JWR ordered them to provide a urine sample.
Vacha claims and JWR denies-reimbursement for costs and
attorneys' fees assessed in a lawsuit filed againstnim on an
overdue account.
When a violation of section 105(c) is found, the statute
directs the Commission to require such affirmative action to
abate the violation as it deans appropriate. Appropriate
affirmative action may include back pay, interest, reimbursement
for damages or expenditures related to the unlawful discharge, a
cease and desist order and a civil penalty for the violation of
the Act.
Respecting the claim for one hour's pay for part of the time
complainants spent on company property after being ordered to
provide a urine specimen, the Secretary and JWR each relies on a
different arbitrator opinion.
In one opinion, the arbitrator
held that employees who were tested under the program during
nonworking hours were entitled to up to one hour's pay at
overtime rates.
In a later opinion, the arbitrator held that
Price and Vacha were not entitled to pay for the time spent
(4-1/2 hours) on company property after they were directed to
provide urine specimens on March 2, 1987. It is not my function
to interpret the collective bargaining contract or to reconcile
arbitrator opinions.
I must decide whether the claim is related
to the discriminatory discharge. No wages were lost; no money
was expended. The unlawful discharge did not occur until after
the time for which the claim is made expired.
I conclude that
reimbursement for one hour of that time is not related to the
unlawful discharge, and I deny that portion of the claim.
There is no evidence in the record to show that the expenses
incurred by Vacha in connection with his lawsuit were related to
the discriminatory discharge, and I deny that portion of his
claim.
ORDER
1. The findings, conclusions and order incorporated in illY
decision of July 13, 1988, are REAFFIRMED.

2. Respondent is ORDERED to pay complainant Price within 30
days of the date of this order the sum of $8, 411. 8 6 as back pay
and expenses, with interest thereon in accordance with the Bailey
v. Arkansas Carbona formula, calculated proximate to the time
payment is actually made.

1109

3. Respondent is ORDERED to restore to Price the three days
of graduated vacation pay he took to attend the hearing.
4. Respondent is ORDERED to pay complainant Vacha wiJ:hin 30
days of the date of this order. the sum of $68 81.4 7 as back pay_
and expenses, with interest thereoh in accordahce-wfth- the Bailey
v. Arkansas Carbona formula, calculated proximate to the time
payment is actually made.
5. Respondent is ORDERED to pay to the Secretary within 30
days of the date of this order the sum of $500 as a civil penalty
for the violation found herein. Because I concluded that the
substance abuse program was facially in violation of the Act, I
treat ic as a single violation. Because I concluded that JWR did
not intend to diminish the rights and responsibilities of miners'
representatives, I have reduced the amount of the penalty. (The
Secretary requested a $2000 penalty for each of two violations.)

·'7

'

•

/hes ~//._,
/I -c1,· -?,/'j,
//7~ /t
c.. c......:<- .. , ... e A:.,.

...... l

,

...

James A. Broderick
Administrative Law Judge
Distribution:
Frederick W. Moncrief, Esq., U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
James P. Alexander, Esq., Robert K. Spotswood, Esq., John H.
Hargrove, Esq., Bradley, Arant, Rose & White, 1400 Park Place
Tower, Birmingham, AL 35203 (Certified Mail)
Robert H. Stropp, Esq., Patrick K. Nakamura, Esq., Stropp &
Nakamura, 2101 City Federal Bldg., Birmingham, AL 35203
(Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th
St., ~.w., Washington, D.C. 20005 (Certified Mail)
slk

1110

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

AUG 31 \988

.
.
.
.

DAVID LEE JACK,
Complainant

v.

.
.
.

THE HELEN MINING COMPANY,
Respondent

.

DISCRIMINATION PROCEEDING
Docket No. PENN 88-138-D
PITT CD 87-15
Homer City Mine

DECISION
Appearances:

Marvin Stein, Esq., Kuhn, Engle & Stein,
Pittsburgh, Pennsylvania, for the Complainant:
Henry J. Wallace, Jr., Esq., Reed, Smith, Shaw
& Mcclay, Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Weisberger

Statement of the Case
On February 22, 1988, Complainant filed a complaint with the
Commission under section 105(c) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 815(c) (the Act) alleging, in
essence, that the Respondent took a discriminatory disciplinary
action towards him, 11 • • • as a result of my work-related
accident, absences from work, and need for ear surgery in order
not to loose my hearing." An Answer was filed on March 28, 1988.
Pursuant to notice, the case was scheduled and heard in
Pittsburgh, Pennsylvania, on June 22, 1988. At the hearing
David L. Jack, Ronald H. Rhoades, and Layton Thrower testified
for the Complainant. W. Duane Landacre and Clark McElhoes
testified for the Respondent. Complainant filed its posthearing
Proposed Findings of Fact and Memorandum of Law on August 10,
1988, and Respondent filed its Proposed Findings of Fact and
Memorandum of Law August 12, 1988. Each Party filed a Reply on
August 22, 1988.
Issues
1. Whether the complainant has established that he was
engaged in an activity protected by the Act.

1111

2. If so, whether the Complainant's suffered adverse action
as the result of the protected activity.
3.

If so, to what relief is he entitled.

Findings of Fact
Stipulated Facts:
Prior to the hearing the Parties stipulated with regard to
the following facts as set forth in their Prehearing Stipulation:
1. Complainant David Lee Jack (nJackn) is an adult
individual residing at 431 Oak Street, Indiana,
Pennsylvania, and was employed by The Helen Mining
Company as a miner, as that term is defined under
30 u.s.c.A. § 802Cg>.
2. Respondent, The Helen Mining Company C"Helenn)
is a Pennsylvania corporation, a wholly owned
subsidiary of the Valley Camp Coal Company and an
employer in an industry affecting commerce as
defined by Section 2(7) of the LMRA, 29 U.S.C.A.
§ 802(h)Cl).
Its principal place of business is in
Homer City, Indiana County, Pennsylvania.
3. Jack was employed by Helen as a miner from
October 10, 1978 until July 24, 1987, when he was
discharged pursuant to Helen's Chronic and Excessive
Absence Control Prograi~.
4. In December 1985, Jack suffered a serious injury
to his hand while at work, and was off work for the
first 6 months of 1986.
5. During the latter part of 1986, Jack was injured
in a shuttle car accident in the mine and missed
more than 2 weeks of work.
6. In January 19 1987, Helen implemented a Chronic
and Excessive Absence Control Program (the "Program") for hourly employees at the Helen Mine.
7. On January 14, 1987, Jack received a warning
under the Program because he exceeded the 10 percent
and six occurrence standard set forth in the Program.
8. On April 14, 1987, Jack received a Last and
Final warning under the Program.

1112

9.

On May 1, 1987, Jack underwent an ear operation.

10. Jack was absent from work approximately 11 days
after his ear surgery.
11. In the 3 months following issuance of the Last
and F.inal Warning, Jack was absent 22 percent of his
scheduled workdays.
12. On July 24, 1987, Jack was discharged on the
basis that he failed to correct his high rate of
absenteeism under Helen's Chronic and Excessive
Absentee Program.
13. On July 28, 1987, a grievance was filed on
Jack's behalf protesting his termination, which
grievance was submitted for resolution to Arbitrator
Edward J. Sedlmeier.
14. On August 15, 1987, Arbitrator Sedlmeier issued
a Decision and Award upholding Jack's termination.
15. On September 4, 1987, District 2, United Mine
Workers of America, and Local 1619, United Mine
Workers of America, filed a Complaint in the United
States District Court for the western District of
Pennsylvania at Civil Action No. 87-1880 seeking to
set aside Arbitrator Sedlmeier's Decision and Award
on the grounds, inter alia, that the Decision and
Award does not draw its-eBsence from the labor agreement and is contrary to public policy.
16. On April 29, 1988, United States District Judge
Alan N. Bloch issued an Order granting Helen's
Motion for Summary Judgment, dismissing the
Complaint and finding that Arbitrator Sedlmeier's
Decision and Award draws its essence from the collective bargaining agreement and is in the bounds of
established public policy.
I adopt the above stipulated facts.
Findings of Fact
During the course of his employment with the Respondent,
David L. Jack worked underground as an indoor laborer operating a
shuttle car which exposed him to coal dust at the face. 'He also
ran a bolter and had to shovel to keep the belt line free of coal.
He also performed construction work which was not generally at
the face.
In general, each work day ne would be assigned by his
foreman to perform any of the above tasks.

1113

Jack, for approximately 2 years prior to May 7, had suffered
from a perforated right tympanic membrane with a resulting
hearing lost of 25 to 45 decibels in the right ear. In March
1987, his physician, Doctor Minoa Karanjia recommended surgery.
Jack, subsequently in March 1987, informed Clark McElhoes,
Respondent's Superintendent, of the pending operation and inquired
whether he would be discharged if he would take off 3 days in May
for an operation, and McElhoes indicated that it would not.
(Jack
had testified that, when informing McElhoes in March 1987, of the
pending operation, he did not specify that he would need 3 days off.
I have adopted the version testified to by McElhoes due to my
observations of his demeanor, and due to the fact w. Duane
Landacre, Respondent's Personnel Manager, testified that, in an
arbitration hearing, Jack had said that he told McElhoes that he
would not be taking for off more than 3 days.
In this connection,
I note that in the Arbitration Decision, the Arbitrator indicated
that Jack, when he scheduled the operation, expected to be out of
work for 3 or 4 days.
(RX 7, page 14)).
As a consequence of the right tympanoplasty performed on
May 1, 1987, Jack was provided with a graft in his ear. According to Jack, 2 days after the operation, he returned to the
office of Doctor Karanjia and at that time the latter asked him
what kind of work he did and Jack said that he worked in a coal
mine. Jack indicated at that time there was no discussion with
regard to Jack's returning to work. Jack further said, that at
that time he obtained a slip from Doctor Karanjia, that he would
be off from work and turned it in to the mine clerk, a Mr. Rooke,
who did not have any supervisory functions.
However, Jack
indicated that he did not read the contents of the note. A note
entitled "Certificate to return to work or school" dated
April 29, 1987, signed by Doctor Karanjia and stamped by the
Respondent on what appears to be May 1, indicates that Jack has
been under the latter's care and contains the following remarks:
"for surg 5/1/87 - will be off work until further notice."
(RX 11).
Doctor Karanjia, in his deposition, stated, in essence,
that, on April 29, 1987, Jack indicated his occupation to him.
He further stated that he first saw Jack after the operation on
May 6 (Deposition page 33), and then saw him again on May 13. He
said that he told Jack, in essence, that he could not go and work
in the mines and "it will be up to you."
(Deposition 17 - 18).
He explained, in essence, that the postoperative ear condition,
" . . . is going to be effected by a lot of dust, coal dust that
might go in and things might happen."
(Tr. 17). He also

1114

indicated that. there is a very high possibility that a postoperative ear condition can be infected if a person goes in mines and
works with dust. He provided his opinion that the postoperative
condition is unsafe and Jack should have been off work for at
least 3 months.
However, there is nothing in the record to establish exactly
when Doctor Karanjia told Jack not to go back to work at the
mines. Jack testified that, when he saw Doctor Karanjia the
second time after the operation, he was examined and given a slip
"to return to work" which he gave to Rooke the following day and
that he continued working that day and continued working for
2 weeks.
(Tr. 20, 21) Rooke, to whom Jack testified that he had
given the slip from Doctor Karanjia 2 days after the operation,
did not testify. According to McElhoes he did not have any
contact with Jack between the time Jack had asked him if he could
take time off for an operation in March or April 1987, until the
arbitration proceedings subsequent to Jack's discharge.
Based on
the above I find that, prior to Jack's return to work after his
operation on May 18, 1987, he did not notify Respondent prior to
the Arbitration Proceedings, that he refused to return to work as
directed by his Physician in order to avoid infection and
possible lost of hearing as a consequence of exposure to dust and
coal dust.
Jack testified that on July 24, he was called into
Respondent's office and McElhoes informed him that he was being
discharged pursuant to the chronic absentee program as his
absenteeism had exceeded 10 percent. Pursuant to the procedure
in this program, Jack requested a meeting with Respondent's
agents which was held on July 28. At that time Jack indicated
that he had returned to work 11 days after the surgery under his
doctor's instructions as the latter had wanted his surgery to
heal properly, had given him a slip 2 days after the surgery, and
intended to keep him off work.
Discussion and Conclusions of Law
Complainant and Respondent are protected by, and subject to,
the provisions of the Mine Safety Act, and specifically section
lOSCc) of the Act.
I have jurisdiction to decide this case.
The Commission, in a recent decision, Goff v. Youghiogheny &
Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated the
legal standards to be applied in a case where a miner has alleged
acts of discrimination. The Commission, Goff, supra, at 1863,
stated as follows:
A complaining miner establishes a prima facie case
of prohibited discrimination under the Mine Act by
proving that he engaged in protected activity and that

1115

the adverse action complained of was motivated in any
part by that activity. Pasula, 2 FMSHRC at 2797-2800;
Secretary on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803, 817-18 (April 1991). The operator
may rebut the prima facie case by showing either that
no protected activity occurred or that the adverse
action was not motivated in any part by protected activity.
Robinette, 3 FMSHRC at 818 n. 20. See also
Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59
(D.C. Cir 1984); Baich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983) (specifically approving the
Commission's Fasula-Robinette test).
It has been further held by the Commission that, a miner's
refusal to perform work is protected under section 105(c) of the
Mine Act if it is based on a reasonable, good faith believe that
the work involves a hazard. Pasula, supra, Robinette, 3 FMSHRC,
803 at 812; Secretary v. Metric Constructors, Inc., 6 FMSHRC 226,
229-31 (February 1984), Aff 'd sub nom. Brock v. Metric
Constructors, Inc., 766 F.2d 469, 471-72 Cllth Cir. 1985).
Perando v. Mettiki Coal Corp., 4 FMSHRC 491 (1988).
In essence, it is Complainant's position that from the time
of his operation until his return to work, he had refused to work
as directed by his physician in order to avoid infection and
possible lost of hearing. Doctor Karanjia testified, in his
deposition, that he told Jack, in essence, not to go back to work
in the mines, because the postoperative condition would be
effected by a lot of dust and coal dust, and that Jack should
have been off from work for a minimum of 6 weeks. Accordingly to
Jack, when he saw Doctor Karanjia for the first time, 2 days
after the operation, there was no discussion with regard with his
return to work. Also, accordingly to Jack, although Doctor
Karanjia gave him a slip at that time which he took to Rooke,
Jack did not read the contents of the slip. Further, the record
is not clear as to exactly when Doctor Karanjia told Jack not to
return to work in the mines. Also, Jack's duties entitled a wide
range of work, including construction work which was not in the
area of the face. Further, Jack was aware that Respondent
provided its employees with ear muffs which covers the ear
entirely and Jack agreed that to obtain such a pair all he had to
do was go to the supply room and ask for them.
I find, based
upon this evidence, that Complainant has not established that
during the time he was off from work after his operation, he had
ref used to perform work based upon a reasonable belief that the
work involved a hazard.
Even assuming arguendo that the Complainant herein engaged
in a protected activity in not working for 11 days subsequent to
his operation, his case must fail, as Jack has not met his burden

1116

in establishing that he communicated to Respondent his refusal to
work. As stated by the Commission in Secretary on behalf of
Sedgmer, et al v. Consolidation Coal Company, 8 FMSHRC 303, at
307 (March 1986), "The case law addressing work refusals contemplates some form of contact or communication manifesting an
actual refusal to work."
Jack asserts that his absence for 11 days subsequent to his
operation on May 1, 1987, was a protected work refusal, and his
discharge on June 24, was a violation of the Act. However, the
record is devoid o~ any evidence that Jack, prior to his meeting
with Respondent's agents on July 28, 1987, had communicated an
actual refusal to work based on a belief that his working
involved a hazard. According to Jack, when he met with McElhose
some time in March 1987, prior to surgery, he merely informed him
of the need of surgery and was told to go and have it. There is
no testimony from Jack that at that time he communicated any
refusal to work subsequent to the operation based upon a perception of any hazard. According to Jack's testimony, the only
contact he had with Respondent's agents between his last day of
work prior to the operation and his return to work on May 18,
consisted of his presenting a slip to Rooke 2 days after the
surgery. Jack did not testify to any.conversation that he had
with Rooke, nor did he testify with regard to the contents of the
note that he presented to Rooke, as Jack had indicated that he
did not read it. The note itself was not offered in evidence.
Also, although a note dated April 29, 1987, from Doctor Karanjia,
was in Respondent's possession indicating, in essence, that Jack
will undergo surgery on May 1, 1987, and "will be off work until
further notice," (RX 11), there is nothing in that note communicating specifically that Jack's contemplated absence would be to
avoid exposure to hazardous aspects of his job. Further, had
Jack clearly communicated to Respondent his refusal to work due
to a fear of exposure to the hazards of dust and coal dust, it is
likely that he would have been provided with ear muffs which
would have alleviated the hazard of infection.
Therefore, for all the above reasons, it is concluded that
the Complainant has not engaged in a pro~ected activity under
section 105(c) of the Act, and as such, has not established a
prima facie case. Accordingly, Respondent's Motion for Summary
Decision, made at the Hearing, is presently GRANTED and the
Complaint is DISMISSED.

1117

ORDER
Based on the above Findings of Fact and Conclusions of Law,
it is ORDERED that this proceeding be DISMISSED.

Avram Weisberger
Administrative Law Judge
Distribution:
Melvin Stein, Esq., Kuhn, Engle & Stein, 1307 Manor Building,
564 Forbes Avenue, Pittsburgh, PA 15219 CCertif ied Mail)
Henry J. Wallace, Jr., Esq., Reed, Smith, Shaw & Mcclay, Mellon
Square, 435 Sixth Avenue, Pittsburgh, PA 15219-1886 (Certified
Mail)
dcp

1118

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

August 26, 1988
ROCHESTER & PITTSBURGH COAL
COMPANY,
contestant
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Respondent

CONTEST PROCEEDING

...
.

Docket No. PENN 88-243-R
Safeguard Notice 2885431: 5/18/88

.

Mine ID 36-02404

Greenwich Collieries No. 2 Mine

PARTIAL DECISION AND
STAY ORDER
Before: Judge Melick
On May 18, 1988, a notice to provide safeguard was
issued by the Secretary under section 314Cb) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.,
the "Act," to the Rochester and Pittsburgh Coal Company (the
Company). On June 16, 1988, the Company attempted to contest
that safeguard notice.
Thereafter, on July 1, 1988, the secretary filed a
Motion to Dismiss on the grounds that Contestant failed to
state a claim for which relief may be granted under section
105 of the Act. Under section 105(d) a mine operator may
contest an order issued under section 104, a citation or a
penalty assessment issued under section 105(a) or section
105(b), or the reasonableness of the length of abatement time
fixed in a citation. However the safeguard notice here
challenged is not within any of these categories.
Accordingly the Secretary's Motion to Dismiss the Contest
Proceeding is granted and the attempted contest of Safeguard
No. 2575910 is dismissed.

1119

On June 27, 1988, the contestant moved to amend its
pleadings to also request a declaratory judgement holding
that the subject safeguard is invalid. The proposed
amendment is unopposed and ·comports with the procedural
rules. The issue of whether a Commission Administrative Law
Judge has the jurisdictional authority to grant declaratory
relief is however presently before the Commission in the case
of Kaiser Coal Corp. v. Secretary and UMWA, Docket No.
WEST 88-131-R.
Accordingly further procee ings in this case
concerning the issue of declaratory relief are hereby stayed

pending a decision by the Comm·ssion in th.

Gary M ick
Adminis\rative
(703) 7 6-6261

~~c·

Judge

Distribution:
Joseph A. Yuhas, Esq., Rochester & Pittsburgh Coal Company,
P.O. Box 367, Ebensburg, PA 15931 (Certified Mail)
B. Ann Gwynn, Esq., Office of the Solicitor, U.S. Department
of Labor, 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104
(Certified Mail)
Mr. William N. Shaner, Chairman, UMWA Safety Committee, P.O.
Box 367, Ebensburg, PA 15931 (Certified Mail)
nt

1120

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

703-756-6232
August 29, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 88-56-M
A.C. No. 41-03018-05513

v.
McDaniel Pit
BOORHEM-FIELDS, INCORPORATED,
Respondent
ORDER REJECTING PROPOSED SETTLEMENT
By letter and attachment received August 22, 1988, the
petitioner filed a motion seeking approval of a proposed
settlement by the parties for section 104(a) "S&S" Citation
No. 3061374, September 10, 1987, 30 C.F.R. § 56.9073. The
citation was assessed at $276, and the petitioner seeks approval
of a payment of $20 by the respondent in settlement of the
violation.
A review of the pleadings reflects that the inspector
issued the citation after finding a back hoe with bad brakes
and a broken tie rod broken away from the frame on the left side
of the vehicle, parked at the shop area of the mine. The
inspector found that the vehicle had not been tagged to prevent
anyone from operating it, as required by the cited standard.
Abatement was achieved within approximately 3 hours of the
issuance of the citation, and this was accomplished by the mine
superintendent removing the key from the vehicle.
The inspector's gravity findings, as shown on the face of
the citation, reflect that an injury was reasonably likely, with
permanently disabling results, and that one person would be
exposed to such an injury.
In support of the reduction of the
initial penalty assessment for the violation, petitioner makes
the following argument at page two of its motion:
Probability of injury was overevaluated since
very few employees were exposed to the risk, these
employees were not, during the normal course of

1121

their_ work, exposed to the risk with any great
frequency, or were not in the zone of danger, and
the employees were not working under stress or
where their attention would be distracted.
I fail to understand the relationship between an untagged
parked vehicle with bad brakes and a broken tie-rod, and the
petitioner's statements that few employees were exposed to a
risk, that they would not in the normal course of their work
be exposed to the risk with any great frequency, were not in
the zone of dahger, and were not working under stress or where
their attention would be distracted. Such unexplained statements
raise an inference that the untagged vehicle posed a hazard, and
that employees may have been exposed to such a hazard.
Although the respondent's answer suggests that the cited
vehicle was parked at the shop for repairs, and makes reference
to a "repurt" prepared by the inspector stating that the vehicle
was parked at the shop for repairs, petitioner's motion does not
include any such information. Further, the fact that abatement
was achieved by the removal of the ignition key some 3 hours
after the citation was issued, raises a question as to why the
key was not immediately removed from the vehicle when it was
parked if in fact it was removed from service for repairs.
ORDER
In view of the foregoing, the proposed settlement IS
REJECTED.
The petitioner is directed to re-submit it within
ten(lO) days of the receipt of this Order with a clarification
or explanation of its previously submitted argument in support
of the civil penalty reduction in question.

~KfuZ~
Administrative Law Judge

Distribution:
Michael H. Olvera, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Mr. Joe Mcclendon, Safety Director, Boorhem-Fields, Inc.,
P.O. Box 1177, Paris, TX 75460 (Certified Mail)
/fb

1122