MARCH 1985
Commission Decisions
03- 28 - 85
03- 28- 85
03- 28- 85

Littl e Sandy Coal Sales, Inc .
Sec./P.Camer on v. Consolidation Coal Co.
U. S. Steel Mining Company, Inc.

KENT 83-178- R
WEVA 82-190- D
PENN 82- 322

Pg. 313
Pg. 319
Pg. 327

WEVA 83- 280- R
KENT 84-91-D
PENN 84 - 181- D
WEST 84-26-M
WEVA 84- 84 -D
KENT 84-162
LAKE 85-26-M
SE
83-62-Dl1
WEVA 84-124
\VEST 84-32-M
WEVA 83- 48- D
LAKE 85-16-D
PENN 85-91-C
WEST 84-53-M
VA
85- 10-R
SE
84-51-D
WEST 84-94-M
CENT 85-2
KENT 85-49
PENN 83-1- R
PENN 84-191-R
CENT 84-91- U
LAKE 84- 99
YORK 84-15-DH
PENN 84- 43
PENN 84-92-C

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Pg . 452

Administrati ve Law ·Judge Decisions
03- 01- 85
03-06-85
03- 06- 85
03-06-85
03-06-85
03-07 -85
03- 07- 85
03-07- 85
03-08-85
03-12-85
03-12-85
03-13-85
03- 13- 85
03-13-85
03-18-85
03-19-85
03-22- 85
03-25-85
03- 35- 85
03-25-85
03-25-85
03- 26- 85
03-27-85
03-28-85
03-28-85
03-29-85

Consolidation Coal Company
Jesse Bragg v. Big Oak Coal Corp.
UMWA/H . Porter v. Emerald Mines Corp.
Cotter Corporat i on
Nancy B0\·7en v. Pond Creek Mining Co .
Lost Mountain Mining, Inc .
Vulcan Materials Company
Emiliamo R. Cruz v. Puer~o Rican Cement
Barrett Fuel Corporation
Pacific Coast Building Products, Inc.
Roy Lucas v. Eastern Assoc. Coal Corp.
Francis Janoski v. R & F Coal Company
UHWA v. Greemvich Collieries
Lake Fork Gravel, I nc .
Industrial Resources, Inc .
Sec./Greg Brown v. A&L Coal Co., Inc .
Arc Materials Corporation
Turner Brothers, Inc.
Paul D. Gregory, Frank T. Knight
BCNR Mining Corporation
Emerald Mines Corporation
Amax Chemical Corporation
Zeigler Coal Company
Marion Adams v. J .L. Owens Contracting
G M & W Coal Company, Inc.
UMWA v. LaBelle Processing Company

Pg . 477

Pg . 479
Pg . 482

MARCH
The Commission directed the following case for review during the month of March :
Chapman Merrell v. Peabody Coal Company, Docket No. KENT 84-250-D. (Interlocutory
Review of Judge Broderick's December 7, 1984 Order.)
Review was denied in the following cases during the month of March:
United States Steel Mining Company, Inc. v. Secretary of Labor, MSHA, Docket No .
WEVA 84-335-R. (Judge Melick, January 30, 1985)
Local Union 8454, District 17, United Hine l.Jorkers of America v. Pine Tree Coal
Company and Buffalo Hining Company, Docket No . 1..JEVA 84-65-C. (Judge Broderick,
February 15, 1985)

COMMISSION DECISIONS

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

March 28 , 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. KENT 83-178-R

LITTLE SANDY COAL SALES 9 INC.
DECISION
This case arises under the Federal Mine Safety and Health Act of
30 U.S.C . § 801 ~~· ( 1982) " Edgar Everman ? the owner of
Little Sandy Coal Sales ? Inc . ( "Little Sandy11 ) 9 is proceeding without
the assistance of counsel. We granted Mr. Everman 9 s petition for review
of a decision by a Commission administrative law judge. 5 FHSHRC 1793
(October 1983)(ALJ). For the reasons stated below, we remand this case
for further proceedings .
1977 ~

On March 10 , 1983, an inspector of the Department of Labor ' s Mine
Safety and Health Administration ("MSHA") conducted an inspection of the
Little Sandy surface facility in Grayson, Kentucky. The inspector
issued the company twelve citations for conditions alleged to be in
violation of mandatory safety and health standards. Mr. Everman objected
to the issuance of the citations on the ground that Little Sandy. ~las not
a "mine" subject to Mine Act coverage . For purposes of litigating this
threshold question·, HSHA selected one of these citations and on March
18, 1983, issued a "no area affected" withdrawal order for failure to
abate the cited violation. 1/ Subsequently, on April 6, 1983, Mr.
Everman filed a notice of contest asserting that Little Sandy was a
"retail coal yard" not subject to the Mine Act . The Secretary filed an
answer to the notice of contest alleging that Little Sandy was a "mine"
within the meaning of the Act.
l/
The citation charged Little Sandy \vith a violation of 30 C. F.R. §
71.500, a mandatory health standard fo r surface coal mining operations.
Section 71.500 requires operators to provide approved sanitary toilet
facilities. The Secretary has indicated that the abatement period for
the outstanding unabated citations and order has been extended until
after the coverage issue is resolved.

3.i.3

On April 15 , 1983, the j udge assigned to this case issued a pre-trial
order stating that the "only issue appears to be whether Little Sandy
. . , is a mine within the meaning of the • • . Act. ,..• " The judge directed
the parties to advise him as to whether they could agree to a stipulation
of facts relevant to determination of that issue. In response to the
judge ' s pre- trial order, counsel for the Secretary of Labor submitted
the following description, agreed to by the parties, of the Little Sandy
operation :
This operation is comprised of a scale,
scale house, parts and lubricant storage
trailer, and a coal processing apparatus
consisting of a ra.w coal hopper ~ raw coal
feeder and belt, a crusher <.·l ith load out
belt and a screening unit there ·co . The coa l
produced therefrom takes approximately three
forms:
1.
Crusher coal
2.
Stoker
:L
Fine coal oi.- "ca rbon"
The whole plant is situated on a site of
approximately 1~ acres. The stockpiles area
is approxima t ely 3/4 acre in size with the
processing apparatus being abou t 100 feet
l ong, and i·i: is powered by 440v commerc ial
power as 1•7ell as diesel power for driving
the crusher.
On August 10 , 1983, the judge issued a notice of hearing informing
t he parties that the hearing on t he merits was scheduled for September
8 , 1983, at 10 : 00 a.m. On August 15, 1983 , the judge issued a supplemental
notice stating that the hearing would be held in Pikeville, Kentucky, at
the previously announced time . On September 7, 1983, the judge arrived
in Pikeville for the hearing and received a telephone call from his
secretary in his Falls Church, Virginia office. Yne secretary informed
him that Mr . Everman had telephoned to say that he could not attend the
hearing due to an illness. Hr. Everman had left with the judge's secretary
his home and business numbers, and had indicated that he would be horne
after 4:00 p .m. that day.
On September 8, 1983, the judge convened the hearing at 10:00 a.m.,
and waited until 10:20 a.m. for Mr. Everman to appear. The judge then
telephoned his secretary and asked that she call Mr . Everman. She
called Hr. Everman's office and '"as told that he was not there but was
expected . She also called Mr. Everman's home but received no ans,ver .
The judge returned to the hearing and announced t hat he was not holding
Mr . Everman in default, but ruled that by his absence Mr. Everman had
waived his right to cross-examine the government's witnesses . 5 FMSRRC
at 1793-94; Tr. 2. The judge also stated that in the event Mr. Everman
produced a doctor's certificate indicating that he was too sick to
attend the hearing and testify, the judge t·70uld permit ~1rI . Everman to
submit a statement with regard to his position in the case . Id. The
judge then proceeded with the hearing and heard the Secretary'S evidence,

3 .i. 4

When the judge returned to his office, he received a telephone call
from Mr. Everman, who apologized for not attending the hearing. The
judge told Mr. Everman that if he would send him a doctor's certificate,
the judge would allow Mr. Everman to submit further evidence but would
not reopen the hearing to allow Mr . Everman to cross- examine the government witness who had testified at the hearing. On September 26, 1983,
Mr . Everman submitted a post-hearing brief, attached to which was a
doctor's note stating, "Mr . Everman was unable to attend due to illness."
In his decision, the judge recited the events leading up to Mr.
Everman ' s absence from the hearing. 5 FHSHRC at 1793. The judge adhered
to his ruling at the hearing that ''Mr. Everman [was not] in total default
but • •. by failure to appear he .•. v7aived his right to cross-exaMine
the government witnes[s ]. 11 5 FMSHRC at 1794. The judge further indicated
that the note from Mr. Everman;s doctor was inadequate to justify his
failure to appear. Id . The judge did consider . hmvever, the arguments
in Hr. Everman?s post-hearing brief concerning ~o1hether Little Sandy is
subject to Mine Act coverage.
With regard to the coverage ~ssue, the j uage summarized Little
Sandy's contentions, especially its claim that its surface facility
closely resembled the operation held by the Commission not to be a
"mine" under the Hine Act in Oliver M. Elam, Jr., Company, 4 FMSHRC 5
(January 1982). The judge rejected tittle Sandy's position that Elar.1
was controlling, and distinguished that case from the present proceeding
on several grounds . 5 FMSHRC at l79L!-95 . The judge cited the Commission 's
decision in Alexander Brothers, Inc., 4 FMSHRC 541 (April 1982), as
dispositive of the coverage issue and concluded that the Little Sandy
facility was a "mine" within the scope of the Act. 5 FMSHRC at 1795.
On review, Little Sandy, in part, maintains that under the circumstances the judge erred in not permitting it to participate in the
hearing by presenting evidence and cross-examining the Secretary's
witness in a continued or reopened hearing. We find merit to this
objection.
Commission Procedural Rule 60(b), 29 C. F.R. § 2700.60(b), provides:
A party shall have the right to present
his case or defense by oral or documentary
evidence, to submit rebuttal evidence, and to
conduct such cross- examination as may be
required for a full and true disclosure of the
facts.
The rights embodied in Rule 60(b) are integral to the basic due process
accorded a party in litigation under the Hine Act. Of course, we are
mindful that there is no absolute constitutional requirement of confrontation in a federal administrative proceeding. See, e.g . , Central
Freight Lines, Inc . v. United States, 669 F . 2d 1063, 1068 (5th Cir .
1982). Indeed, our Rule 60(b) is mo deled on section ?(c) of the Administrative Procedure Act, 5 U.S . C. § 556(d), and both provisions confer on

3L5

parties the right to conduct only such cross-examination "as. may be
required for a full and true disclosure of the facts." · Due process in
an administrative forum "calls for such procedural protections as the
particular situation 'demands." Mathews v. Eldridge, 424 U.S. 319, 334
(1976). See also Secretary of Labor on behalf of Gooslin v. Kentucky
Carbon Gorp., 3 FHSHRC 1707, 1711 (July 1981). Nevertheless, the
importance of cross- examination is sufficiently basic that we are not
prepared to approve its outr.ight denial in proceedings before our judges
for less than compelling reasons.
We recognize that the judge and the Secretary suffered inconvenience
(and the government sustained expense) as a result of Mr . Everman's
failure to appear on schedule . Hr. Everman, however 9 i nformed the judge
that he would be unable to attend due to illness. Hr. Everman provided
the judge 1 s secretary t-ri.th telephone number s at which he could be reached
that day , in addition to i ndicating the time at which he would be home.
On this record 9 we discern in t hese actions. a good-faith effort by Mr.
Everman to contact the judge and to minimize the inconvenience his
absence would cause . It does not appear that the judge at tempted t c
contact Mr. Everman on September 7, 1983, after he had received t his
message through his secretary. It was only the next morning, after
commencement of the hearing, that the judge had his secretary call Hr.
Everman's home and office numbers in an effort to reach him. Having
been unsuccessful in contacting Mr. Everman, the judge determined tha ·;,:
by his absence Mr. Everman had waived his r ight to cross-examine the
Secretary ' s witnesses. Following the hearing $ Mr. Everman telephoned
the judge and apologized for his absence. He also complied with the
judge's request to provide a signed doctor 's note to the effect that he
had been unable to attend the hearing due to an illness . Although the
doctor's note could have provided more detail, nothing on this record
indicates that Mr . Everman's claim of illness was not bona fide.
We also must assign weight to the fact that this proceeding was
intended to be a test case to determine whether Little Sandy's facility
is covered by the Hine Act. On review, Mr. Everman argues, in essence ,
that other facilities in Kentucky, allegedly similar to his otvn, are not
regulated by MSHA and that he '"ishes to explore this line of inquiry
through cross-examination and the calling of other witnesses. The
Secretary has not argued that a continued or reopened hearing to7ould have
prejudiced his case. In these circumstances, Little Sandy should be
given an appropriate opportunity to develop a complete record to support
its position that it is not covered by the Mine Act .

3 .L 6

Accordingly, we vacate the judge's decision and remand this matter
for proceedings consistent with this decision . Little Sandy is to be
allowed to cross- examine the Secretary's witness and to submit additional
evidence on the issue of Mine Act co~ 3/

'Richard V. Backley,

Acting~

2/
Pursuant to section 113(c) of the Mine Act , 30 U. S.C . § 823(c), we
have designated ourselves as a panel of three members to exercise the
powers of the Commission .

3t7

Distribution
AnnaL. Wolgast, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Edgar B. Everman
Little Sandy Coal Sales, Inc.
P.O . Box 335
Grayson, Kentucky 41143
Administrative Law Judge Charles Hoore
Federal Mine Safety & Health Review Commission
5203 Leesb.urg Pike, lOth Floor
Falls Church, Virginia 22041

318

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

March 28, 1985
SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. \\TEVA 82-190-D
on behalf of PHILLIP CAMERON

v.
CONSOLIDAT I ON COAL COMPANY
DECISION
This case involves a complaint of discrimination filed by the
Secretary of Labor with this independent Commission pursuant to the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et ~·
(1982)("Mine Act"). The complaint alleged that Consolidation Coal
Company ("Consol") violated section 105 (c) of the Mine Act ~vhen it
disciplined Phillip Cameron following his refusal to perform his work
assignment . Cameron believed that to carry out the assignment would
endanger a miner working with him, although he foresaw no danger to
himself . A Commission administrative law judge dismissed the discrimination complaint , concluding that the Mine ·Act does not extend a
protected right to a miner to refuse to perform \vork when the danger
perceived is to the saf ety of another miner .
4 FMSHRC 2205 (December
1982)(ALJ) .
We granted petitions for discretionary review filed by the Secretary
of Labor and the United Mine \~orkers of America ("ill-1WA"), and heard oral
argument. For the reasons that follow, we reverse and remand for further
proceedings.
At the time of the events at issue , Phillip Cameron v1as a haulage
motorman at Consol ' s underground Ireland coal mine . Cameron operated a
27- ton locomotive or "motor" that pulled a train or " trip" of loaded
coal cars. Cameron transported the loaded tri p from a belt head on a
siding in his section , onto and along the main haulageway, to the main
dumping point for the mine . Unt i l the time of the even t s at issue, it
had been t he procedure in Cameron's section to use a safety switch to
prevent loaded cars from rolling back into the mine in the event of an
uncoupling . The safety switch would derail uncoupled cars, sending them
into the rib or wall o f the mine , thereby avoiding a more dangerous
"runaway" situation . Cameron was working ~.;rith another miner, Elmer
As ton, who was temporarily assigned to haulage . l Aston's responsibilities

c.""19
:L

included helping to gather the empty cars at the dump and compos.ing a
new trip of full cars at the siding. He rode with Cameron on the
locomotive and was receiving on-the- job training as a motorman. ·
On Sa turday, October 31, 1981, Cameron and 'Aston were informed by
Edtvard Gibson, their section foreman, that the haulage procedure had
been changed. The new procedure involved adding a "tra{l ing motor" to
the trips. In the event of an uncoupling from the lead motor, instead
of relying on the safety switch to prevent runaways, the trailing motor
was to apply its brakes to stop the cars. Gibson explained that a 10ton trailing motor was to be used. Cameron and Aston told Gibson that
they thought a 10-ton motor was too small to control a detached trip.
They requested permission to use a larger trailing motor until they had
a chance to discuss the matter with the UMWA safety committee at the
mine. The mine was not at full production that day and a 50-ton motor
was available. Foreman Gibson permitted the 50-ton motor to be used as
the trailing motor, but informed Cameron and Aston that the larger motor
would not be available on the following Monday, and that a 10-ton trailing
motor would be used thereafter .
That night Cameron called David Shreves, a ~fi~A International
safety representative, to inquire about the directed use of a 10-ton
trailing motor. According to Cameron, Shreves agreed that a 10-ton motor
was inadequate to control disconnected coal cars and indicated that if a
problem a rose on the job ? Cameron should contact the l ocal UMWA safety
coTPmittee.
At the start of their shift on the following Monday, Cameron and
Aston were told by Gibson to use the 10-ton trailing motor. Both men
expressed concern for the safety of the procedure, requested that the
UMWA safety committee be consulted and refused to perform their
assignments. 1/ Although as lead motorman Cameron's safety was not
threatened by-the new procedure, he exp ressed fear for Aston's safety in
the event of an uncoupling. 2/ Foreman Gibson sent the men to the shift
foreman, Richard Fleming. Attempts by Fleming to persuade the men to
use the 10-ton motor were unsuccessful. Miae Superintendent Robert
Omear was contacted and he instructed Fleming to prepare a test to
demonstrate the safety of the procedure. In the interim, Cameron and
Aston performed alternate work .
Tests of the 10-ton motor's braking ability were then conducted in
Cameron's section. Cameron, Aston, the m~~A safety committee, and
various management officials were present. Cameron and Aston designated
the track location they believed to have the steepest grade. The first
test was intended to determine if the 10-ton motor could hold a loaded
trip on this incline. The trip was stopped on the incline, the brake
was set on the trailing 10-ton motor, and the brake on the lead motor
was released. The 10- ton trailing motor held. The second test involved
1/

1~ile

there is some inconsistency in the testimony concerning

~hether Cameron refused to work or m~rely requested consultation with

the safety committee, the jud8e found that Cameron refused to perform
his assigned \·Tork . This finding is not challenged on rev'ie"t-J and the
record supports this conclusion.
~/
Cameron also expressed concern that when a more senior motorman
returned from sick leave, he (Cameron) would be riding the trailing
locomotive. In this regard, the judge found that Cameron's fears for
his own safety were "too remote and speculative" to support the work
refusal at issue. Neither the Secretary nor the UMWA take issue with
the judge 's finding concerning Cameron 's personal safety .

letting the loaded trip drift backwards 10 feet before the trail i ng
motor's brakes were applied . The 10-ton motor stopped the trip. Cameron,
Aston, and the safety committee were concerned that the tests were
inadequate and they remained dissatisfied with the safety of the procedure.
Nevertheless, they thereafter used the 10- ton trailing mo.tor ~vithout
subsequent work refusals.
Because of their continued concerns, hm-1ever, on Thursday, November 5th,
a further test was performed for state and federal mine inspectors . In
this test the loaded trip, with the lead locomotive attached, was allowed
to coast backwards 100 feet befor e the 10-ton trailing motor's ·brakes
were applied . The trip stopped within 150 to 200 feet of the point at
which braking had commenced . The inspectors were sat is fied with the
ability of the 10-ton trailing motor to act as a brake. Although Cameron ,
Aston, and the UMWA safety committee remained unconvinced , Cameron and
As ton continued to perform their assigned duties .
On Friday, November 6, Cameron was given a five- day suspension as
a result of his refusal on the preceding Monday to perform his assigned
duties. (Through a contractua l arbitration process , Cameron ' s suspension
was later reduced by one day). Aston was not disciplined. 11
The administrative law judge found that Cameron had engaged in a
ref usal and that he was disciplined by Consol because of this
refusal . The judge further found that Cameron~s belief about the safety
hazard posed to Aston was held in good faith and was reasonable . The
judge concluded, however, that the Mine Act does not extend protection
for a work refusal to situations wher.e a miner himself is not threatened
by continued performance of work, but there is a perceived risk to
another miner . Finding that Cameron therefore did not engage in activity
protected by the Mine Act, the judge dismissed Cameron ' s discrimination
complaint.

~·JOrk

We disagree with the judge's holding concerning the scope of the
right to refuse ~vork under the Mine Act. As discussed below , we hold
that , in certain limited circumstances , the Mine Act extends protection
to a miner who refuses to perform an assigned task because such performance
would endanger the safety or health of another miner .
Section 105(c)(l) of the Mine Act provides:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimina tion against or otherwise interfere with the exercise
of the statutory rights of any miner, representative
of miners or app licants for employment in any coal or
other mine subject to this Act •• . 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.

11

The operator's reason for not disciplining Aston was because at the
time of the work refusal he was inexperienced and "visibly frightened."
Cameron had \vorked at the mine since 1969.

30 U. S. C. § 815 (c) (l)(emphasis added) . The Secretary and the UMWA point
to this statutory language as support for their view that the Mine Act
protects a miner's refusal to perform wo rk t hat endangers another
miner . Consol asserts that the emphasized text is not even applicable
to this case:
The pronoun "himself" refers to the miner or applicant
for employment . The pronoun " other" relates to the
representative of miners . Obviously , an individual
exercises his own rights, and a representative
exercises the rights of those he represents - - in
other words, the rights of o~he r s.
Reply Brief at 10.
Although we agree ,.,ith Consol t hat a "representative" exercises the
rights of others, there is nothing inherent in the construction of
section 105(c)(l) that limits the ability to exercise statut ory rights
"on behalf of others" exclusi vely to representatives of miners . Rat her ,
the phrase logically can be read to have grammatical and substan tive
application to all three categories of protected persons referred to in
section 105(c). Furthermore, in common usage the phrase " on behalf of"
is not limited in meaning to actions taken in a representat i ve capacity.
Actions on behalf of others also are actions " in the interest of" or
"for the benefit of" others. 1-lebster' s Third New International Dictionarv
(Unabridged) 198 (1971) . We conclude , therefore , that the text of
section 105(c)(l) supports the extension of protection , in appropriate
circumstances, to individual miners exercising statutory rights on
behalf of others . Accord, Secretar y on behalf of Dunmire and Estle v.
Northern Coal Co . , 4 FMSHRC 126 , 134 (February 1982) .
An individual miner ' s right to refuse to perform ,.,ork in conditions
posing a danger to himself is i tsel f not found in the text of the Mine
Act . It has come to be r ecognized and accepted, however, in view of
clear legi slative history, the overall s t atutory scheme and the underlying
purpo se of the Act. See, e . g . , Secretary on behalf of Pasula v . Consolidation
Coal Co . , 2 FMSHRC 2786 (October 1980), rev ' d on other gro unds sub nom.
Consolidation Coal Co. v . Marshall, 663 F. 2d 1211 (3d Cir. 1981); Miller v .
FMSHRC, 687 F.2d 194 (7th Cir . 1982) . Accord, Secretary v. Metric Constructors, Inc ., 6 FMSHRC 226 (Febr uary 1984) , ~· for review filed,
No . 84- 3427 , 11th Cir., July 19, 1984 ; Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FHSHRC 803 (April 1981).

In the present case , the parties cite the same legislative history
relied on and discussed in the above- cited work refusal cases, but
arrive at different conclus i ons as to its bearing on the existence of a
miner ' s right to r efuse work that threatens the well-being of another
miner . See Senate Subcommit tee on Labor , Committee on Human Resources,
95th Con~ 2d Sess ., Legislative History of the Federal Mine Safety and
Health Act of 1977 , at 623- 24 ; 1088- 89 ; 1356 (1978) . Consol argues , and
the judge agreed, that this legislative history indicates that the right
to refuse work is personal to the miner who is endangered . The Secretary
and the UMWA argue that the legislative history indicates that a broad
reading must be given to the Ac t ' s discr imination provisions , and that
the right at issue is supported thereby .

•..
.•.' .J 0
" .

d'- -

Our review of the cited passages discloses no clear answer to the
question before us . The legislative history does not specifically focus
on or othen1ise address the question of whether a miner may refuse an
assignment that jeopardizes a co-'lomrker ' s safety or health . Because of
this lack of focus, ~ve draw no relevant lesson from the "t.ise in the
legislative history of the s i ngular or plural form of words such as
"his", "their", "miner", or "miners" in the discussion of the rights of
miners . Id.
This Commission previously has stressed that, due to our adjudicatory
function, we must give "cautious review" to any argument that the Commission recognize statutory rights claimen to exist despite "legisla tive
silence" as to the asserted right. Council of Southern Hountains v.
Martin County Coal Corp., 6 FMSHRC 206, 209 (February 1984), aff'd sub
nom. Council of Southern Mountains v. FMSHRC, 7 ~1 F.2d 1418 (D.C . Cir.
1985). Accord, UMWA v. Secretary of Labor, 5 FMSHRC 807, 810- 15 (May 1983),
aff'd mem., 725 F. 2d 126 (D . C. Cir. 1983). We have fur~her s tat ed that
although ''[w]e do not quarrel with the general proposition that statuto~y
rights and dut ies may be judicially inferred .• • due respect for the
limits of judicial power requires thac any such inference be founded on
a persuasive textual or legislative indication of the intended presence
of the claimed right or duty . .•• [T ] here must be a persuasive nexus
bet>veen that \vhich is stated in a statute and that which is inferred
from it. rr Council of Southern Mountains , supra , 6 FHSHRC at 209 . \<le
continue o ur adherence to these sound pr i nciples.
Unlike the asserted statutory rights that we rejected in Council
of Southern Mountains and UM\~A v . Secretary , in the present case vJe find
the persuasive indication of the intended presence under the >1ine Act
of a miner ' s r i ght to refuse to perform work that threatens the safety
or health of another miner. This indication in part is derived from the
"on behalf of others" language in section 105(c), but it is drawn primari ly
from the presence of the previously recognized statutory right of a
miner to refuse to perform 'vork that threatens his personal safety. \ve
have reexamined the same legislative history and statements of Congressional
concern requiring recognition. of the latter right, and we can find no
persuasive rationale for foreclosing the logical corollary at issue
here. Certainly, given the force of Congressi onal concern for protecting
the safety of miners expressed in the Mine Act, which concern led to the
granting of a right to refuse unsafe \vork in the first place , it would
be anomalous to hold that in exercising that right a miner could consider
only a threat to his well-being without regard to whether that threat or
another threat jeopardizes the safety or health of o the r miner s.
\"e recognize the legitimate concerns of Consol regarding t he need
to maintain its ability to control its workforce effectively, particularly
the need to avoid protecting under section 105(c) so - called "sympathy"
work stoppages. To this en·l, we are iu agreement 'vith the statement by
the Seventh Circuit in Hiller v. FHSHRC, supra, that n~•e are unwilling
to impress on a statute that does not explicitly entitle miners to stop
work, a construction that would make it i mpossible to maintain discipline
in the mines . " 687 F. 2d at 196. For this reason , a careful and reasoned
examination of the circumstances proffered as justifying the exerc ise of
this right is required whenever it is asserted.

We believe that the general analytical framework that has been
established for evaluating the legitimacy of an individual miner's
refusal to work under circumstances claimed to pose a danger to himself,
when carefully applied, effectively can be used i n examining a work
refusal based on an asserted hazard to another miner. Therefore, we
hold that a miner ~.;rho refuses to perform an assigned task because he
believes that to do so will endanger another miner is protected under
section 105(c) of the Mine Act, if, under all the circumstances, his
belief concerning the danger posed to the other miner is reasonable and
held in good faith. Bjes v. Consolidation Coal Co., 6 FMSHRC 1411, 1418
(June 1984), citing Secretary on behalf of Robinette Vc United Castle Co.s
3 F~iSHRC at 807-12. We emphasize, however, the need for a direct nexus
between performance of the refus ing miner 1 s \vork assignment and the
feared resulting injury to another miner. In other words, a miner has
the right to refuse to perform his work if such refusal is necessary to
prevent his personal participation in the creation of a danger to others .
Of course, as with other work refusals, it is necessary that the miner ,
if possible, "communicate, or at least attempt to communicate~ to some
representative of the operator his belief in the • • • hazard at issue ~··
Sammons v . Mine Services Co •• 6 FMSHRC l39~s 1397-98 (June 1984) ( emphasi s
added), quotiEa Secretary on behalf of Dunmire and Estle v . Northern Coal
Co., supra, 4 FMSHRC at 133, and that the refusal not be based on "a
difference of opinion -- not pertaining to safety considerations -- over
the proper \vay to perform the task at ~1and , n Sammons , 6 F'MSHRC at l 398 ,
It is in this latter regard that the judge ~ s decision causes us
some uncertainty. Although the judge did conclude that Cameron 1 s
"belief about the safety hazard was in good faith and was reasonableu
(4 FMSHRC at 2211), he also found that some part of Cameron's fear was
based on the experience level of the tra iling motorman, rather than use
of the trailing motor itself. 4 FMSHRC at 2216. The judge also stated
that uit was clear to me ••• that [Cameron] intended to reserve to
himself the right to decide whether he would accept any other individual
assigned by the operator to be his trailing motorman. 11 Id. These
statements conflic t with the judge's previous finding concerning Cameron 1 s
reasonable, good faith belief that the procedure itself posed a hazard.
Also, we are unsure as to what extent the judge's primary conclusion
that the Act did not provide the right that we have recognized may have
influenced his further findings and ultimate disposition. For these
reasons, we deem it appropriate to remand this case for further consideration and findings in light of our decision.

'}4
..':) ·'~

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

~
Richard V. Backley, Acting Chairman

~~ '
L. Clair Nelson~

4/
Pursuant to section ll3(c) of the Mine Act , 30 U.S . C. § 823(c), we
have designated ourselves as a panel of three members to exercise the powers
of the Commission.

·') ')5

dh-

Distribution
Robert M. Vukas, Esq.
Coal Company
1800 Washington Road
Pittsburgh, PA 15241

~onsolidation

Michael McCord, Esq .
Ann Rosenthal, Esq .
Of fice of the Solicitor
U.S . Department of Labor
·4015 Wilson Blvd.
Arlington, Virginia 22203
Mary Lu Jordan, Esq.
UMWA
900 15th St., N.W .
i.Jashington, D. C. 20005
Chief Administrative Law Judge Paul Herlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W.
6th Floor
Washington , D.C . 20006

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

March 28, 1985

SECRETARY OF LABOR,
~fiNE SAFETY AND HEALTH
ADMINISTRATION (MSH.A)

v.

Docket No. PENN 82- 322

U.S . STEEL MINING CO ., INC.

DECISION
This proceeding arises under the Federal Mine Safety and Health Act
of 1977 , 30 U. S .C. § 801 ~ ~· (1982) ("Mine Act") . The issue is
whether a Commission administrative law judge correctly held that the
violation of a mandatory safety standcrrd by U.S . Steel Mining Co. ("U.S .
Steel") was "significant and substantial" within the meaning of section
104(d)(l) of the Mine Act , 30 U. S.C . § 814(d)(l ) . For the reasons tha t
follow , we affirm.
On June 18, 1982, an inspector of the Department of Labor's Mine
Safety and Health Administration ("MSHA") conducted an inspection of
U.S. Steel's Maple Creek No. 2 mine , located at New Eagle, Pennsylvania .
During the inspection of the mine's haulage area the inspector observed
that the power wires for an energized water pump, which came from the
sso-volt trolley wire and passed through the pump's metal starting box,
were not protected with a required bushing. The wires' insulation was
intact and showed no excessive signs of wear . The inspector issued a
citation alleging a violation of 30 C.F.R. § 75 . 515. 1/ The inspector
also found that the violation was significant and substantial.
1/
30 C.F.R. § 75 . 515 requires in part: "When insulated wires other
than cables pass through metal frames , the holes shall be substantially
bushed with insulated bushings."

U.S. Steel did not contest the fact of violation, but challenged
the inspector's significant and substantial finding . At the hearing ,
witnesses for both MSHA and U.S. Steel agreed that at the time the
citation was issued, there was no chance of the missing bushing causing
an electrical shock because the insulation on the power wires was intact.
However , the witnesses disagreed as to the prospective danger if the
insulation on the wires was subsequently cut by the sharp edge of the
metal box that they contacted. U. S. Steel's general maintenance foreman
stated that the pump had several safety features that would eliminate
the risk of electrical shock. He testified that if the insulation on
the power wires wore through and the exposed conduc t ors contacted the
metal frame of the starting box, the circuit fuses would short circuit
the pump, protecting any person coming in contact with the frame against
electrical shock. The general maintenance foreman also stated that 9
apart from the primary grounding system, there was an additional frame
ground system on the pump , that connected the frame to the rail of the
nearby haulage track. If the fuses did not short circuit the pump, this
additional ground would harmlessly ground electric ity through the rail .
The inspector agreed that the pump had the built- in safety devices
and that the devices were operational at the time he issued the citation.
The inspector denied, however, that all of the devices would have to
fail before anyone could be shocked. He testified that if the insulation
on the power wires was damaged or broken, the ground wire could be
severed and that a person touching the pump might then make a better
ground than the frame ground itself. In such a case the fuse would not
short circuit the pump and the person could be shocked or electrocuted.
The administrative law judge concluded that the violation was
significant and substantial. The judge found that the pump vibrated
and, in the absence of a bushing, the vibration could cause a cut in the
insulation. He accepted the testimony of the inspector that the cut in
the insulation could cause the pump to become the ground and, if t he
circuit pr otection failed , anyone touching the pump frame could be
shocked or electrocuted. The judge concluded that the violation made
such an occurrence reasonably likely . 5 FMSHRC 1788 (October 1983)(ALJ).
On review, U.S. Steel argues that the facts indicate that the
occurrence of the events necessary to create the hazard, the cutting of
the wires' insulation and failure of the electrical safety systems, are
too remote and speculative for the hazard to be reasonably likely to
happen and, consequently, that the judge er red in concluding that the
violation was significant and substantial.
We have held previously that a violation is properly designated
significant and substantial "if, based on the particular facts surrounding
that vioJ . ~tion , there exists a reasonable l ikelihood that the hazard
contributed to will result in an injury or illness of a reasonably
serious nature." Cement Division, National Gypsum Co., 3 FHSRHC 822, 825
(April 198L). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984) , we
explained :

3 28

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
question will be of a reasonably serious nature.
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 ~.rhich 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 sect i on l04(d)(l) 9
it is the contribution of a violation to the cause and effect of a
hazard that must be significant and substantial . See 6 FMSHRC at 1836 .
Applying these principles to the instant case, we af firm the judge ' s
holding that the cited violation properly was designated significant and
substantial. U.S. Steel's only ·t.Jitness did not deny that the missing
bushing could contribute to a shock hazard. Rather, because of the
pump 7 s circuit fuses and its dual grounding system ~ he de scr i berl the
chance of miners being shocked or electrocuted as 11very slight ." Moreover ~
the inspector effectively testified that if the cited condition were
left uncorrected an accident involving shock or electrocution was "reasonably likely" to occur. The inspector's statement that a person coul d
serve as a better ground than the frame ground itself if the insulation
on the wires was cut, was not refuted by U. S. Steel, and was accepted by
t he judge. The fac t that the insulation was not cut at the time the
violation was cited does not negate the possibility that the violation
could result in the feared accident. As we have concluded previous ly , a
determination of the significant and substantial nature of a violation
must be made in the context of continued normal mining operations.
U.S. Steel ~lining Co., 6 FMSHRC 1573, 1574 (July 1984). The administrative law judge correctly considered such continued normal mining
operations . He noted that the pump vibrated when in operation and that
the vibration could cause a cut in the pmJer wires' insulation in the
absence of a protective bushing. In view of the fact that the vibration
was constant and in view of the testimony of the inspector that the
insulation of the power wires could be cut and that the cut could result
in the pump becoming the ground, ~.re agree that in the context of normal
mining operations, an electrical accident ~vas reasonably l ike ly to
occur.
Accordingly, we conclude that substantial evidence supports the
judge's conclusion that the violation in this case was properly designated significant and substantial. U.S. Steel additionally argued

on review that the sole appropriate penalty for a violation that is not
significant and substantial is $20. Although in view of our holding, it
is unnecessary to reach that issue here, we previously have rejected
this argument. See U.S. Steel Mining Co., Inc ., 6 FMSHRC 1148 (May
1984) . ])

James A. Lastowka, Commissioner

~~

L. Cla ir Nelson , Commissioner

11

Pursuant to section ll3(c) of the Mine Act, 30 U. S.C. § 823(c), we
have designated ourselves a panel of three members to exercise the
powers of the Comnission .

Distribution
Louise Q. Symons, Esq.
U.S. Steel Mining Co., Inc.
600 Grant Street, Room 1580
Pittsburgh, PA 15230
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative La'-1 Judge James A. Broderick
Federal Mine Safety & Health Revi ew Commission
5203 Leesburg Pike, lOth Floor
Falls Church , Virginia 22041

'J

IJ. l

I,JU

ADMINISTRATIVE LAW JUDGE DECISIONS

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

CONSOLIDATION COAL COMPANY,
Contestant

22041

MAR 1 'i985

CONTEST PROCEEDING
Docket No . WEVA 83-280-R
Citation No. 2022955; 9/6/83

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

Docket No . WEVA 83-281-R
Citation No. 2022956; 9/6/83
Docket No . WEVA 84-16-R
Citation No ~ 212382 3; 10/24/83
Buckeye Preparation Plant
DECISION
r

Appearances:

Robert M. Vukas; Esq .; Pittsburghr Pennsylvania ,
for Contestant ;
James B . Crawford , Esq., Office of the Solicitor ;
U. S. Departme nt of Labor, Arlington, Virginia,
for Respondent.

Before :

Judge Steffey

A hearing in the above- entitled consolidated proceeding
was held on July 18 , 1984, in Bluefield, West Virginia, pursuant to section 105(d) , 30 U. S . C . § 815(d), of the Federal Mine
Safety and Health Act of 1977.
Completion of the Record
At the hearing, counsel for the Secretary of Labor introduced Exhibits 1 through 10 and counsel for Consolidation Coal
Company (Consol) introduced Exhibits .A through 0 . Most of the
exhibits introduced by Consol pertained to the transfer to
Riverside Industries , Inc . , of property owned by Consol. When
I began to write the findings of fact to be included in this
dec ision , I found that the legal instruments introduced by
Consol at the hearing left ambiguities about some aspects of
the transactions between Consol and Riverside. Therefore, I
issued on October 16 , 1984 , an " Order Requiring Clarification
of the Record " . Consol ' s counsel replied to that order in a
letter dated October 31, 1984. Attached to the letter were
eight additional agreements and letters pertaining to the
property transfer.

After I had reviewed the eight additional documents and
Consol's letter of explanation, I concluded that I still could
not make findings of fact concerning all aspects of the property transactions without additional information.
Consequently,
I wrote a letter dated November 5, 1984 , to Consol ' s counsel
and requested that he provide an additional explanation of certain aspects of the property transfer. Consol's counsel re plied to my letter of November 5, 1984, in a letter dated
November 9, 1984. Attached to the letter of November 9 , 1984,
were four supplemental documents pertaining to the property
transfer. After I had read Consol ' s letter of November 9, 1984 ,
and had examined the four supplemental exhibits , I found that
the hearing record , as supplemented, provided sufficient in f ormati on to support the 21 findings of fact which are hereinaf ter
g iven .
Consol ' s counsel requested that the above- described sup plemental information be received in evidence and offere d to
present witnesses at a supplemental hearing , if necessary , to
support and e xplain the exhibits . The Secretary's counsel was
given ~he opportunity to ask for any additional information or
hearings which he might believe were necessary to complete the
record or explain the addi tiona·l documents submitte d by Con sol' s
couns e l . The Secretary's counsel requested and was g ranted an
extension of time so that he could examine t he additional materials before submitting his reply brief .
When counse l fo r
the Secretary subsequently filed his reply brief, h e agreed
that the additional exhibits did not change the basic issues
or arguments and agreed that the supplemental documents submitted by Consol in response to my order and letter should be
admitted in evidence (Secretary's reply brief, p . 1).
I find that the additional information supplied by Consol
is needed to complete the record in this proceeding. Therefore, there is marked for identification as Exhibit P a twopage letter dated October 31 , 1984, addressed to me from Consol's counsel, including the eight documents described in the
letter and attached to the letter.
There is marked for identification as Exhibit Q a two - page lette~ dated November 9, 1984 ,
addressed to me from Consol's counsel including the four documents described in the letter and attached to the letter.
With agreement of the Secretary's counsel, Exhibits P and Q
are received in evidence.
I ssues
Counsel for Consol and the Secretary filed their initial
briefs on October 1 , and 15 , 1984 , respectively , and their re ply briefs on October 23, 1984, and December 26, 1984 . Consol ' s initial brief raises the following issues:

'.} ".} ~

t)UI..• .

1.
Does the Commission have the j"urisdiction and authority to find Consol liable for citations issued for alleged vio lations of mandatory standards on a refuse pile in vie"'' of the
fact that the citations were issued when Consol did not operate, control, or own the refuse pile?

2. Does the Commission have the jurisdiction and authority to order Consol to abate citations on a refuse pile which
Consol does not operate, does not control, and does not own?
3.

Were the citations validly issued against Consol?

4. Did the Secretary prove tha~ the cited conditions
are violative of the manda·t ory standards a :c,.d did. he ProvE. Co r!.sol t s liability for those conditions ?
The Secretary's initial brief expresses the issues as
follows:
l.
Is Consolidation Coal Company liable as operator o f
the Buckeye Preparation Plant for violations under the Federal
Mine Safety and Health Act of 1977 related to the refuse pile
associated with the plant , assuming it owns the Preparation
Plant :. Ltself due to an executed security agreement '?
2. Does MSHA have jurisdiction over mine health and
safety matters at a mine or related facility when no miners
are affected but the adjacent properties and nearby persons
are affected?
3. Did the violations alleged in Citation Nos. 2022955,
2022956, and 2123823, and contested by Consol in Docket Nos.
WEVA 83-280-R, WEVA 83- 281-R, and WEVA 84-16-R, respectively,
occur?
It is obvious from the dif~erences in which the parties
express the issues that Consol is claiming that it does not
own, control, or operate the refuse pile which resulted from
operation of the plant, whereas the Secretary is claiming
that Consol's admitted ownership of the preparatiQn plant is
necessarily associated with control and operation of the refuse pile.
A discussion of the parties' contentions must be based
upon an understanding of the somewhat complicated factual
background leading up to the issues raised in this proceeding.
The testimony of the witnesses and the documentary evidence
support the following findings of fact which will be used as
the basis for resolution of the issues raised by the parties .

.134

Findings of Fact
1. Section 109{d) of the Act and 30 C . F.R . § 41 require
the operator of a coal mine to file with the Secretary of
Labor the name and address of the mine and the name and ad dress of the person who controls or operates the mine. Those
sections of the Act and regulations also require each operator
to designate a responsible official at each mine to receive a
copy of any notice , order, citation, or decision issued under
t he Act. MSHA has prepared Le gal Identity Report Form No.
2000-7 for t he purpose of enabling operators to report the
information required by the Act and regulations (Tr. 75~ 96~
9 9 ; 10 l ; Exh . '7)
o

2 o According· to ·t.c.e leg·al ide:n.ti ty forms on file with
MSHA, Pocahontas Fuel Company , a division of Consolidation
Coal Company, began operating a mine, known as the Buckeye
Mine, in Wyoming County , West Virginia, near the town of
Stephenson, West Virginia, in 1963. The Buckeye Mine was then
operated by Consol 1 s Southern Appalachian Region , and then by
Consol up to 1978, at which time Consol stopped producing coal
from the Buckeye Mine, apparently because it became an unprof i table operation (Tr , 28; 72 ; 14 0) .

3. Coal produced i n the Buckeye Mine was transported by
conveyor belt to the Buckeye Preparation Plant which was also
owned and operated by Consol. Refuse from the preparation
plant was trucked a distance of about 1,600 feet to a refuse
pile (Tro 34).
That pile runs parallel to a county road for
about 900 feet, extends back from the county road approximately
1,200 feet , and is about 200 feet high (Tr. 103) .
The pile
does not impound any water because diversion ditches have
been constructed to prevent water from being trapped behind
it ( Tr • 1 0 4 } .
4. Consol ' s operations at the Buckeye Mine and Preparation Plant were done under a lease obtained from a nonaffiliate , Pocahontas Land Company .
Consol signed a letter agreement dated April 16, 1980, \<lith Riverside, Inc., in which
Consol agreed to sell to Riverside all of its personal property in the Buckeye Mine and Preparation Plant, plus Consol 1 s
leasehold rights to the property , with the consent of Pocahontas Land Company, to Riverside for $1,500,000 wi th a sum
of $250,000 to be paid by Riverside on the date of closing
and the remaining amount of $1,250 , 000 to be paid in seven
equal installments plus 13 percent interest (Tr. 167-168;
Exh. P). Riverside made a down payment of $250,000 on the
date of closing, but $50 , 000 of that sum was used by Consol
as payment for some mining supplies which had not been included in the long list of equipment which Consol had agreed
to sell to Riverside for $1,500,000 .
Therefore, the p rinc i pal sum of $1 , 500,000 was reduced by $200,000 to $1,300,000

and then by an unexplained sum of $2.00 to an amount of
$1,299,998 which the Bill of Sale (Exh . M) required Riverside
to pay in seven installments of $185,714 with 13 percent interest (Exh. Q).
5. The entire transaction between Consol and Riverside
was subject to a security interest evidenced by Riverside's
promissory note in the amount of $1,299,998 (Tr. 171).
If
Riverside defaulted in any way in making payments, Consol had
the right to repossess all of the equipment in the Buckeye
Mine and Preparation Plant (Exhs. G; I through 0).
6 . Soon after the signing of the agreements described in
finding Nos. 4 and 5 above, Riverside became involved i n a dis pute with Consol about Consol's alleged failure to convey an
additional shuttle car and some conveyor equipment. When Consol refused to agree with Riverside's interpretation of the
basic agreements, Riverside brought a court action to try to
obtain the disputed equipment.
The action was settle d so t h at
Riverside did not have to pay an additional amount of $453,000
referred to in an Amendment to Security Agreement (Exh. L).
Consol agreed to return Riverside's promissory note marked
"canceled" and Consol also delivered two shuttle cars to River side as part of the settlement (Exh . Q) .
7. An agreement between Riverside and Conso l dated
August 14, 1981, states that Riverside failed to pay the first
installment of the purchase price when it was due on June 27,
1981 , and provided that Riverside would pay $200,000 by
August 27, 1981 , plus $196,963 . 67 on or before September 27,
1981, or a total of $396,9.63. 67 by September 27 , 1981 (Exh. P).
Riverside interpreted the agreement differently from Consol
and paid a different amount of $354,713.74 on August 27, 1981,
such amount having been comprised of a regular installment of
$185,714 in principal and $168 , 999 . 74 in interes t (Exh. Q).
8.
Riverside ' then fi l ed a proceeding in the United States
Bankruptcy Court for the Southern District of West Virginia
(Tr. 169). The payment of $185 , 714 in principal referred to in
finding No. 7 above reduced the amount still owed by Riverside
to $1 , 114 , 284 at the t i me the bankruptcy proceeding was initiated. The sum of $1,114,284 continued to be subject to 13
percent interest which amounted to $12,071.41 per month (Exh.
Q). The bankruptcy court approved a settlement on March 11,
1982, allowing Consol to regain possession of its "collateral"
consisting of the mine equipment in the Buckeye Mine and the
Preparation Plant , including all equipment in the plant . At
the time Consol reacquired its property, the 8 months of interest had increased the amount owed to Consol by Riverside
to $1,211 , 759 . 20 (Exhs . Hand Q).

336

9. When Consol reacquired the equipment in the mine , the
equipment in the plant, and the plant structure itself, Consol
claims that it did not reacquire any of the leasehold rights
which it had transferred to Riverside and Consol claims that
it has no right to perform any kind of work at the Buckeye
Mine or Plant except for the express permission granted in the
conveyances which specifically permit Consol to go on the mine
property for the purpose of removing any of the equipment in
the mine or at the preparation plant (Tr . 176 - 178).
10. During the period from 1978, when Consol stopped mining coal in the Buckeye Mine and ceased p rocessing coal in the
Buckeye Preparation Plant, up to June 27 , 1980, when Conso l
transferred its leasehold and property rights to Riverside ~
MSHA's legal identity reports continued to show Consc l as t h e
operator o f the Buckeye Preparation Plant and Refuse Pile .
It is MSHA's position that a preparation plant cannot be o p erated without having access to a refuse pile where i t can
dump the refuse which resul·ts from processing raw coal (ri'r .
96-97~ 118- 119} .
Under the provisions of 30 C.F . R. S 7 7 .2 15 ,
MSHA declared the Buckeye refuse pile to be a hazardous refuse
pile because a burning pile may produce gases which can cause
explosions (Tr. 115-116) .
After a pile has been found to be
hazardous~ the operator of the pile is thereafte r required to
file an annual report showing ~..vhat the conditions at ·the pile
are and also is required to certi f y annually that the pile is
being maintained in accordance with applicable engineering and
environmental criteria. Consol submitted such reports in 1979
although it was not actively mining coal from the mine or
processing coal in the plant (Tr. 129; Exh. E).
11. During Consol's inactive coal- producing period from
1978 to June 27, 1980, MSHA issued Citation No. 637725 [not
contested in this proceeding] on May 24, 1979, alleging that
Consol had violated 30 C.F.R. § 77.215(h) because the slopes
on the refuse pile exceeded 2 horizontal to 1 vertical and
that materials from· the slope were sliding out into the road
after a period of rainfall so as to cause possible injury to
persons traveling on the road (T~. 64; . Exh . 8). MSHA extended the time for compliance to September 21, 1979, because
rainy weather had prevented Consol from completing work on
the slopes. MSHA took no further action as to the alleged
violation until June 24, 1981, at which time MSHA modified the
citation to indicate that the operator of the refuse pile had
been changed from Consol to Riverside.
On that same date,
MSHA extended the time for abatement to August 1.0, 1981, because of a work stoppage and the change in operator. The time
for abatement was subsequently extended to October 20, 1981,
with the observation that work was in orogress to make the
slopes 2 to 1 and that more time was needed to ' continue abatement work. A final extension of time was granted to May 1,

1982, indicating that some work had been done to abate the citation, but that Riverside was in bankruptcy and that the time
for abatement needed to be extended to allow the matter to be
reso l ved . On September 23 , 1982, MSHA wrote Withdrawal Order
No . 2002003 under section 104(b) o f the Act on the ground that
"[l]ittle effort has been made to abate the citation on the outslopes."
(Tr . 65- 69) .
12 . Before Consol conveyed the Buckeye Mine and Preparation Plant to Riverside, MSHA had sent Consol a letter dated
August 30, 1979, advising Consol that its next annual report
for the Buckeye Refuse Pile was due on March 4 1980 (Tr. 95~
Exh . 9) . Consol did not transfer the 3uckeye operations ts
Riverside until June 27, 1980 (Tr . 171-172). Consequently r
Consol should have submitted the annual report before i ·c trans -ferred the refuse pile to Riverside . By t he time MSHA realized
that the annual report had not been timely submitted, Conso1
had conveyed the Buckeye Mine and Preparation Plant to River side. Therefore, MSHA issued Citation No. 884652 on October 8~
1980, alleging that Riverside had violated section 77.215 -2( c }
by having failed to submit the annual report which was due on
March 4, 1980 (Tr. 92 ; Exh. A).r MSHA also issued Citation No.
884653 on October 8, 1980, alleging that Riverside had violated section 77.215-3(b) by faili ng to submit the annual certification for the refuse pile which was due on August 16 1
1980 (Tr. 93; Exh. B). Riverside abated both alleged violations by filing the required reports within the time given in
the c i tations (Exhs. A and B) .
13. As indicated in finding No . 8 above, Consol reacquired the equipment in the Buckeye Mine and Preparation Plant,
as well as the plant structure itself, on March 11, 1982.
Consol did not file a legal identity report to show that it
had reacquired the preparation plant until January 4, 1983 .
Consol contends that since it had reacquired only the plant
structure and the equipment in the plant , without reacquiring
any of the leasehold rights needed for producing coal to be
processed in the p l ant , that it was not required to file a
legal identity report except for ~he .purpose of showing changes
which had occurred in its supervisory personnel (Tr. 151).
Consol had previously received Citati on No. 881531 on March 4 r
1981, for fai l ure to file a new legal identity form to notify
MSHA of a change in personnel (Tr. 152}. Therefore, Consol
claims that it submitted a legal identity form on January 4,
1983, solely to show the name s of persons to receive correspondence from MSHA with respec t to the Buckeye Plant (Tr.
155; Exh. 7) . Consol claims that i ts filing of the legal
identity form on January 4 was not intended to show ownership
of the refuse pile (Tr . 155) . Consol ' s witness testified that
he entered the designation "N/A" on the form as a means of (1)
advising MSHA that the plant was not operating, (2) showing

that no person was physically located at the plant for the purpose of receiving communications from MSHA, and (3) notifying
MSHA that any communications about the plant would have to be
sent to Consol's Regional Manager of Safety whose mailing address was then given as Horsepen, Virginia (Tr. 156) .
14. Consol claims that it had made it clear to MSHA that
the Buckeye Plant was inactive by sending MSHA a letter dated
July 13, 1983, giving the name~ of persons who should receive
correspondence for each of its active and inactive mines and
preparation plants .
That letter listed the Buckeye Mine and
Preparation Plant under the heading of "Idle or Closed Minesn
and indicated that correspondence about such mines or plants
should be sent to the Regional Manager of Safety ;,..;hose address
had been changed to 28 College Drive , P. 0. Box 890 , Bl uefielQ ,
Virginia (Tr . 154; Exh. F).
15. MSHA's inspection of the Buckeye Refuse Pile in
September of 1983 showed that erosion had produced crevices
and ditches in the pile to a depth of from 20 to 25 feet and
that materials from the pile were continually being washed
down on the county road which p asses the pi le (Tr. 43). Odors
given off by the pile and the \<7armth of the pile's exterior
made MSHA's inspector believe that a fire had started within
the pile because erosion was allowing air to enter the pile ' s
interior (Tr. 54). MSHAts inspector decided to issue citations for the dangerous condi tion of the pile to Consol because the legal identity report submitted by Consol on January 4, 1983, showed that Consol owned the inactive Buckeye
Preparation Plant with which t he pile had always been associated for purposes of issuing citations alleging violations of
the mandatory health and safety standards {Tr. 57; Exh . 7) .
The inspector reasoned that Consol had not abated Citation
No. 637725 1 described in finding No. 11 , when Consol \vas undeniably the company which then owned and controlled the refuse pile (Tr . 65). Consol was the company which had con~rib
uted 90 percent of ·the refuse which made up the pile (Tr. 70} .
Consol ' s reacquisition of the equipment in the mine, the
equipment in the plant, and the plant structure itself was,
in MSHA ' s opinion, a reacquisition of control over both the
preparation plant and the associated refuse pile (Tr. 59; 75 ;
97; 100)
0

16. For the reason given in finding No. 15 , MSHA issued
two citations to Consol on SepteffiPer 6, 198 3. The first one
was Citation No . 2022955 alleging a violation of section
77.215(a) because the outslopes of the pile were not compacted
in such a manner as to minimize the flow of air through the
pile (Tr . 48; Exh. 5).
The citation stated that air was
entering the pile through the ditches and crevices caused by
erosion (Exh. 5) . Section 77.215(a) requires that" [r)efuse

deposited on a pile shall be spread in layers and compacted
in such a manner so as to minimize the flow of air through the
pile." The second citation was No . 2022956 which alleged that
Consol had violated section 77 . 215(h) because the outslopes of
the pile exceed the ratio of 2 horizontal and 1 vertical at
several locations (Tr . 44, Exh . 4). Section 77.215(h) re quires that refuse piles "be constructed in compacted layers
not exceeding 2 feet in thickness and shall not have any slope
exceeding 2 horizontal and 1 vertical (approximately 27°) . "
17. The MSHA inspector returned to the pile on ·October 24,
1983, and found that his previous belief about a fire in the
pile was correct because smoke was now corning ou·t of the pile
and the exterior of the pile was hot to his touch. Therefore;
he issued Consol a third ci·tation, No. 2123823 r on October 24 ,
1983, alleging a violation of section 77.215(j) because "[f]ire
was allowed to exist in the refuse pile." The ci tat:ion stated
that the area on fire was approximately 200 feet long , 12 feet
wide, and of indeterminable depth (Tr . 52-56; Exh . 6) . Section 77.215(j) requires that all fires in refuse piles be e x tinguished in accordance with a plan approved by MSHA.
18. MSHA gave Consol to November 1, 1983 , to correct the
sloping , erosion, and compacting problems and to December 1 ,,
1983, to extinguish the fires (Exhs. 4- 6) . Conso l made no
attempt to abate the alleged violations and filed the notices
of contest which are the subject of this proceeding. Each of
the notices of contest alleges that "Consol is not responsible
for said condition and cannot abate it." Consol's evidence at
the hearing shows that it is contending that Riverside is responsible fo r the condition of the pile because it was the
last entity to operate the Buckeye Prepara t ion Plant and de posit refuse on the pile (Tr . 168; 174 - 179). The reason tha t
Consol alleges that it cannot abate the violations is that it
now owns only the plant structure , thB equipment in the p lant ,
and the equipment in the mine. Consol c laims that since it
conveyed all of i t i leasehold interests to River side who still
owns those interests , Consol has no right to go on the property on which the preparation plant and refuse pile reside
for any purpose other than to remove the mine and plant equipment which it still owns (Tr. 191-192).
19 . MSHA's ev idenc e shows that Riverside deposited only
a small amount of refuse on the pile and that the refuse which
Riverside did deposit was correctly compacted and served a
rehabilitative purpose by contributing to elimination of some
of the conditions which are causing the pile to be hazardous
(Tr. 69). MSHA's evidence also shows that Consol deposited
90 percent of the materials which make up the pile and Conso l 's
failure to correct the sloping conditions when it was first

cited for that violation have resulted in the erosion which
has allowed air to enter the pile and bring about the fire
which now exists in the pile and which is continually spreading as time passes (Tr. 40-43; 54; Exhs. 3A, 3D, and 3E).
The pile is located about 600 feet from the post office in
the town of Stephenson, West Virginia, and a public school is
located a short distance from the post office (Tr. 31; 34;
Exh. 2) •
20. The Buckeye Preparation Plant has been assigned
identification No. l211WV40070-0l (Tr. 31). After the Buffalo
Creek disaster, MSHA made a survey of all refuse piles and
found that a number was needed which wou ld identify the area
of each pi le's location and identify the type of pi le it was
(Tr. 137) . MSHA's witness explained that the number " llll "
indicates a pile made up of anthracite coal refuse and that
the number "1211" indicates a pile formed by bituminous coal
re fuse .
The letters "WV" in the number indicate the State l n
which the pile is located. WV , of course ~ shows that the
Buckeye pile is l ocated in West Virginia. The number "4"
after "WV" refers to MSHA District No. 4 and the numbers fol lowing "4" are merely sequence numbers (Tr. 118). The number
after the dash shows how many refuse pi les are located at a
given mining site. The "01" in this proceeding shows that
only one refuse pile exists at the Buckeye Mine and Preparation Plant (Tr. 102).
21. Although each refuse pile is given a number in accordance with the criteria described in finding No. 20, MSHA
does not issue citations under that number. MSHA's reason
for not using the refuse pile number for the purpose of citing
violations is that MSHA associates all refuse piles either
with a mine whose refuse produces the pile or a preparation
plant whose refuse produces the pile (Tr. 98; 101; 118) . MSHA
assigns an identification nu~ber to all mines and preparation
plants and that number never changes even if the mine or preparation plant is transferred or sold to a new or diffe~ent
owner from the entity which owned the mine or plant when the
number was first assigned (Tr. 134-135-) . Therefore, all of
the citations and orders discussed in this proceeding , whether
issued in Consol's name or in Riverside's name, show the
identification number of the Buckeye Preparation Plant, that
is, No. 46-03242 (Exhs. 4-6; 8; A and B).
Consideration of Parties' Contentions
Consol's Claim that It Does Not Own the Refuse Pile
Consol's initial brief (p. 7) claims that the Secretary
makes a specious argument in contending that Consol is liable
for violations at the Buckeye refuse pile because Consol
filed a legal identity form with respect to the Buckeye

Preparation Plant and, in so doing , became the operator to be
cited for violations occurring at the refuse pile .
Consol
claims that it sold the Buckeye Mine, Preparation Plant, and
all its leasehold rights to mine coal in that area to Riverside and that when Riverside defaulted on its payments, Consol reacquired only its " collateral" or ''security interest"
which consisted of the personal property in the mi ne, the
personal property in the plant, and the plant structure itse l f,
but did not reacquire the leasehold rights which still belong
to Riverside or Pocahontas Land Corporation.
Consol claims
that since it did not reacquire any leasehold rights, it has
no authority to go on the Buckeye mine p roperty for any purpose other than to remove or sell mining equipment in the
mine or in the preparation plant and that it has no authority
whatsoever to go on mine property for the purpose of putting
out a fire in the r ef us e pile or doing any work to make the
pi l e conform with the mandatory safety standards .
Conso l admits that it filed a legal ide nt ity report indicating that it owns the preparation plant after it reacquired the plant from Riverside: but Consol says the only
rea s on it filed the legal identity report was to provide MSHA
with up - to-date information concerning the name and address
of the person to receive communications from MSHA with re -·
spect to the preparation plant. Consol claims that i t entered "N/A" on the legal identity form to alert MSHA of the
fact that the plant was not being operated and that it mailed
MSHA a letter listing the Buckeye Preparation Plant among the
idle facilities which it owns (Exhs. 7 and F). In such circumstances , Consol contends that MSHA knew that it did not
file the legal identity form to accept liability for the ref use pile which i t did not own or operate or control at the
time the citations h e re involved were issued.
The arguments which Consol makes sound appealing until
one examines all the facts.
Consol or an affiliate did own ,
control, and operate the Buckeye Mine and Preparation Plant
from 1963 to 1978 and, during that time, deposited 90 percent
of the materials which make up the Buckeye refuse pile which
is 900 f eet wide , 1 , 200 feet long , and 200 feet high (Finding
Nos. 2, 3, and 19 above). While Consol was operating the
plant and depositing refuse on the pile, it had on file with
MSHA a legal identify form, and during the time that Consol
admittedly owned and controlled the pile, the refuse pile was
declared by MSHA to be a hazardous one.
That declaration
thereafter required Consol to file annual reports certifying
that it was maintaining the pile in accordance with safe en gineering practices.
Those reports were required from 1978
to 1980 even though Consol had stopped operating the plant
in 1978 (Finding No. 10 above) .
During the inactive period,

Consol was cited on May 24 , 1979 , in Citation No . 637725 for a
violation of sec t ion 77 . 215(h) for allowing erosion to develop
in the pile by virtue of Consol ' s having failed to construct
the pile with the required degree of sloping. Consol failed
to abate that vio l ation and MSHA extended the time for abatement to September 21, 1979 . MSHA took no further compliance
action with respect to Citation No. 637725 until June 24, 1981,
when the citation was modified to recognize Riverside as the
operator after Consol had made its futile sale of the Buckeye
Mine and Plant to Riverside on June 27, 1980 (Finding No. 11
above) .
The uncontroverted facts stated above show t ha t Consol
was the owner and operator vlhich created the refuse pile in a
manner which resulted in the pi le 1 s beinq cited for violating
the mandatory safety standards \.vhile ConsoJ. admittedly m.vned
it.
The pile was also declared to be hazardous , thereby requiring special attention : while Consol owned and controlled
it .
Consol was then success f u l in se lling the Buc k e ye Mine:
Preparation Plan·c , and some leasehold rights to Riverside with
the result that Rive rside was , for a short time, considered by
MSHA to be the operator to be held liable for correcting the
hazardo us conditions which existed in the pile at the time
Riverside ourchased it.
Consol applaudes MSHA for holding Riverside as the operator to be cited for violations after Consol sold the Buckeye
facilities to Riverside, but Consol argues that MSHA improperly reverted to holding Consol liable for the violative conditions in the pile after Consol reacquired its personal property in the Buckeye Mine and Preparation Plant without appar ently regaining any leasehold mining rights . Moreover, Consol
claims that Riverside's retention of the leaseh o l d rights continues to make Riverside liable for the ha zardous conditions
which exist in the pile and that MSHA ,should have remained
active in Riverside ' s bankruptcy action to force Riverside to
correct the violations in the refuse pile because Riverside
is not really insolvent since its bankruptcy action pertains
to a reorganization under Chapter -11 , rather than an action
under Chapter 7 which results in a discontinuance in business
with the creditors sharing in whatever assets they can obtain
(Consol's reply brief, p. 2).
Despite Consol's arguments that River side is financially
sound and able to correct the violations in the refuse pile,
Consol considered Riverside so insolvent that it entered the
bankruptcy proceedings for the sole ?Urpose of reacquiring its
" collateral " or " security interest" in the mining equipment in
the Buckeye Mine and Preparation Plant .
Consol cou l d have
taken the position that a reorganization of Riv~rside's affairs under the supervision of the bankruptcy court woul d re sult in Riverside ' s being able to continue operating the

; •·_i' 3

I )

Buckeye properties and pay off its debt to Consol.
Despite
Consol ' s assurances that Riverside is still financially able
to abate the hazardous conditions in the refuse pile, it is
a fact that Riverside defaulted on its payments for the Buckeye properties and it is undisputed that Consol reacquired
its equipment in the Buckeye Mine and Preparation Plant and
the plant structure itself. Consol's reacquisition of the
Buckeye properties necessaril y carries with that reacquisition the responsibility to correct the violative conditions
in the refuse pile.
It must be recalled that Consol sold the equipment in
the Buckeye Mine and Preparation Plant and certain leasehold
interests to Riverside for $1,500 7 000 and that Riverside actually paid Consol a sum totaling $6 04 .· 713. 7 t1 before Con sol
reacquired the property (Finding Nos" 4 and 7 above).
Thusr
Consol received a return on its Buckeye Mine and Plant property which had been idle for about 2 years before i t was so ld
to Riverside and reacquired.
If Consol had corrected the
sloping violation for which it was cited befo r e it sold its
property to Riverside, it is extremely unlikely that the erosion and fire in the pile would have developed, and Consol
would not now be trying to avoid abating the hazardous conditions for which it alone is responsible.
Consol canno·t s uccessfu lly claim that the small amount
of coal produced by Riverside at the Buckeye Mine resulted
in a deterioration of the refuse pile because the inspector
testified that Riverside had properly compacted the small
amount of refuse which it had placed on the pile and that
Riverside's use of the pi l e had had a rehabilitative effect
on the pi l e, rather than a deleterious effect (Finding No.
19 above) .
As a matter of fact, Consol's c~aim that it does not
own sufficient leasehold rights at the Buckeye Mine and Preparation Plant to go on the Buckeye mine property for the · purpose of correcting the hazardous conditions in the pile is
not supported by the legal instruments on tvhich Consol relies.
The Security Agreement, paragraph 8, page 4, authorizes Consol " to maintain , use , utilizer sell or dispose of the Collateral on t he premises of Debtor [Riverside] " (Exh. K) .
That l anguage obviously is broad enough to permit Consol t o
use the equipment on the mine propert y for the purpose of
correcting the hazardous conditions in the refuse pile.
It
is certain that Riverside would have no objections to Consol's
going on mine property to correct the hazardous conditions in
the pile which Riverside inherited from Consol in the first
place.

MSHA's Claim that Consol Failed to Prove It Has No Leasehold Rights
MSHA's reply brief (pp. l - 2) makes the following contention:
2. However, i t is the Secretary's position that in spite
of all the exhibits submitted by Consol relating to the
transactions between Consol, Riverside, and Pocahontas
Land Company (Pocahontas) concerning the coal leases and
preparation plant usage at Buckeye collieries and adjacent
properties, there is no clear evidence that the refuse
pile itself was even a part of these transactions or if
it is so, which lease papers apply to its use . However y
assuming that Riverside ~s lease did include the refuse
pile, it appears likely that the subject leaseholds have ,
in fact , reverted back · to Consol , the sublessor or Pocahontas , the lessor .
Since it would appear to have defaulted on its lease , Riverside filed its petition for
bankruptcy under Chapter 11. Further 7 there has been no
evidence of any payment by Riverside to Pocahontas for
the leasehold itself. Apparently, Riverside defaulted
on its promissory note owed to Consol r and therefore defaulted on the lease resulting in t he reversion of the
· subject property back to the sublessor (Consol} and
lessor (Pocahontas) in accordance ·tl lith genera]_ real prop-·
erty la\v.
In any event? Conso l has failed to carry i·ts
' burden of proving its position that responsibility over
the refuse pile was leased away to another entity, in
this case, Riverside Industries.
[Footnotes omitted.]
There is considerable merit to the Secretary)s claim made
in the above-quoted paragraph. In my order of October 16 ,
1984, I pointed out that Consol had failed to submit in evidence at the hearing a copy of the letter agreement be tween
Consol and Riverside along with the map attached to the letter agreement. I pointed out in the order that Exhibit I
provided that if there should be an ambiguity in the boundary
specifications in the leasehold assignment, that the map controlled. Therefore, I requested · that Consol submit a copy of
the map along with other materials requested in the order of
October 16 , 1984. Although Consol submitted the map as a
part of Exhibit P, the map is such a poor reproduction that
it is impossible to .determine from it what leasehold interests
Consol actually conveyed to Riverside.
Consol's Claim that the Commission Has No Authority To Require
Abatement
Although I have shown in the discussion above that there
is no merit to Consol ' s claim that it has no authority to correct the hazardous conditions in the refuse pile, Consol argues

·3·15

in its initial brief (p. 14) that a refuse pile may be abandoned with HSHA ' s permission if the pile is in compliance \vi th
the mandatory safety standards at the time the abandonment request is made. Consol says that if the pile develops problems,
such as a fire in it, after the abandonment is authorized,
MSHA will no longer take any action, and the hazardous condition becomes a problem for correction by the State in which
the pile exists. Consol also notes that if an operator goes
completely bankrupt under a Chapter 7 proceeding , as opposed
to the Chapter 11 proceeding involving Riverside in this case ,
MSHA simply issues a closure order and refuses to allow anyone else to operate the pile until the outstanding violations
are abated (Tr. 143- 144).
Continuing its theme of not owning the refuse pile, Consol argues that the Commission cannot require Consol to abate
a condition in a refuse pile which it does not own or control .
Consol concludes its argument by saying that the Commission
cannot order Consol to do an act which it cannot perform because the refuse pile is situated on property which is owned
and controlled by another entity, namely, Pocahontas Land
Corporation or Riverside .
Most of the arguments which Consol makes as ·to ·the Commission's lack of authority to enfo~ce abatement are predicated on a factual background which is entirely different
from the facts in this proceeding. Consol's observation that
a refuse pile may be abandoned if it is in compliance with
the mandatory safety standards has no application in this
case because neither Consol nor Riverside ever proposed to
MSHA that it be permitted to abandon the Buckeye refuse pile.
Moreover, MSHA could not have authorized abandonment by either
Consol or Riverside because the pile was cited for a violation
of the mandatory safety standards while Consol owned it and
was cited for that same violation and .others while Riverside
owned it. Therefore, neither Consol nor Riverside could have
been permitted to abandon the Buckeye refuse pile before they
had corrected the violations for which they had been cited,
even if they had attempted to abandon the pile . Moreover,
since Riverside was not involved in a Chapter 7 bankruptcy
action, MSHA would have no rea~~n to issue a closure order
pending some day in the future when a new operator might
propose to operate the Buckeye facilities.
As the Secretary argues in his initial brief (pp. 10-15),
the Act was not intended to be applied in the technical and
narrow sense urged by Consol. The Secretary correctly argues
that MSHA has authority to cite an " operator" for violations
of the mandatory health and safety standards. An operator
is defined in section 3(d) of the Act as "any owner, lessee,

or other person who operates, controls, or supervises a coal or
other mine or any independent contractor performing services
or construction at such mine." The court in BCOA v. Secretary
of Interior, 547 F.2d 240 {4th Cir. 1977), gave-i broad interpretatlon to the word "operator" when it stated that:
the Act does not l imit the term operator to owners and
lessees .
It expressly mentions any "other person who
* * *controls or supervises a coal mine." A coal mine,
as we have pointed out in part III, is not merely an
area of land and its facilities presently used to extract and process coal; it also includes an area of
land and facilities that are "to be used» in the future
for the extraction and processing of coal.
547 F.2d at 246.
Assuming 1 arguendo, that the evidence shows that Conso l
is not the owner 1n t1tle of the refuse pile ~ it is uncontroverted that Consol was the owner of the preparation plant at
the time the citations here involved were issued.
I t cannot
be successfully argued that the preparation plant is unrelated
to the refuse p ile because the evidence shows that Consol
created the refuse pile when it operated the plant and that
Riverside continued to contribute to the refuse pile when i ~
owned the prepara tion plant (Finding Nos. 3 and 19 above) .
While Consol claims that it does not intend to resume production of coal at the Buckeye Mine and Preparation Plant, it
admittedly reacquired the p lant for the purpose of selling it
to anyone else who might be interested in producing coal there.
It is unlikely that anyone could construct a new preparation
plant at the Buckeye site any more cheaply than it could buy
Consol's plant. Therefore, Consol's present ownership of the
plant carries with it a possibility that coal may be mined at
the Buckeye plant site in the future.
Therefore, as the court
stated in the BCOA case above, Consol is holding a preparation
plant which constitutes " facilities " which may be used in the
future for the extraction and processing of coal. Consequently, Consol is the operator of the refuse pile within the meaning of the Act and is the proper party to be cited for violations found to exist in the refuse pile.
The Commission r~jected in Eastern Associated Coal Corp.,
4 FMSHRC 835 (1982), the same line of reasoning on which Consol relies in this proceeding. In the Eastern case, the claim
was made that Eastern was not liable for violations in a refuse pile which was created by coal production by a mine operator
other than Eastern and which was located 800 to 1,000 feet
from Eastern ' s preparation plant. The Commission held that
Eastern was liable for the fire which was burning in that refuse pile even though the pile was not situated in a surface

347

working area where Eastern's employees were r e quired to work
or travel .
The Commission also held that the Secretary is not
required to show that the bur ning p ile create d a hazard to
miners in the normal and reasonable course of employment . All
that the Secretary was required to prove was noncompliance.
In this proceeding, even though Consol is not presently
dumping refuse on the refuse pile, it is a fact that MSHA's
evidence conclusive ly showed that materials f r om the pile are
continually being washed across a county road whic h p eople are
required to travel to reach their homes . Moreover, the p ile
is located only 600 feet from the post office i n the town o f
Stephenson, West Virginia, and there is a schoo l near the pos t
office (Finding Nos . 11 , 16 , and 19 above) . The Secretary' s
initial brief (p. 1 4) refers to a quotation in the Congres -·
sional Record for June 20 , 1977, by Senator Kennedy i n whi ch
he stated that the Act should b e interpre ted ·to "ensure that
those who live around mines and who are af f ected by those
mines or mining operations are p rotected f rom fa u lty mine s as
wel l as the mine rs themse l ves ."
The Supreme Court has stated in several cases that Federal ·agencies entrusted with administering Federa l statutes
should be give n broad powers wh ich ar e to be e x e r c i sed on the
basis of t h e powers g i ven to t hem by the acts they a dminis t er
-;,.;ri thout regard to lega l technicalitie s . F'or e xample v in
United Gas I mprov. Co . v . Continental Oil Co. , 381 U. S . 392
(1965), an ~nterstate natural - gas company purported to purchase developed gas leases in order to avoid the authority
of the Federal Power Commission [now Federal Energy Regu l atory Commission] to control the price of natural gas flow i n g
in interstate commerce. The Supreme Court upheld the Commission's opinion ruling that the purchase of deve loped leaseholds was the equivalent of a conventional sale of natural
gas subject to the Commission ' s jurisdiction. In upholding
the Commission ' s assertion of jurisdiction, the Court stated
that " a regulatory ·statute such as the Natural Gas Act would
be hamstrung if it were tied down to technica l concepts of
local law. " 381 U. S . at 400.
The Supreme Court also held i n Califo r nia . v. Southland
Royalty Co., 436 U.S . 519 (1978), that the State of Texas
could not allow production of gas from a State-owned lease
to be sold in interstate commerce without thereafter obtaining permission from the Federal Energy Regulatory Commission
to abandon the sale, despite the fact that the State of Texas
cannot be considered to be a " natural- gas company" as that
term is defined in the Natural Gas Act.
In Public Service Co. v . Federal Energy Re g., 587 F.2d
716 (5th C1r. 1979), the court disposed of an argument similar
to Consol ' s claim that it cannot be required to abate hazardous

conditions in a refuse pile which it claims not to own.
that case the court stated as follows:

In

Petitioners also seek exemption from the abandonment
requirement on the grounds that Superior did not have
the legal authority to dedicate Texas's royalty gas,
gas that Superior did not own. This argument was,
however, handily disposed of in Southland, where the
owners challenged Gulf's legal authority to dedicate
their gas. Admitting the "appealing resonance" of
the maxim that " ' no man can dedicate what he . does
not own'", the Court concluded that indeed he could .
Id. at 527 . Dedication is not a matter of a lessee's
giving away or selling gas that i t does not own ~ the
Court explained, but rather a matter of changing the
regulatory status of that gas. Superior 1 s consentedto acquisition of the interstate certificate is effective to dedicate Texas's gas whatever the parties '
relationship might be under l ocal law.
587 F.2d at 720.
The Supreme Court also held in National Labor Rel. Bd .
v. Hearst Publications, 322 U.S. 111, 1 29 (1944), that the
word "employee" as used in the National Labor Relations Act
was to be defined by reference "to the purpose of the Act and
the facts involved in the economic relationship", rather than
exclusively by reference to common law standards or local law.
In Gray v . Powell, 314 u.s . 402 , 416 (1 941), the Court held
that " the purpose of Congress which was to stabilize the industry through price regulation, would be hampered by an interpretation that required a transfe r of title, in the technical sense , to bring a producer's coal, consumed by another
party, wi thin the ambit of the coal code."
The Act here involved was intended by Congress to bring
about safe and healthful conditions in the mining industry.
Once an operator produces coal and creates a refuse pile, it
is obligated to correct any hazardous conditions which occur
in that pile, and it may not escape th~t obligation by selling
the preparation plant associated with the pile and then reacquire the preparation plant without also reacquiring the obl i gation to correct the hazardous conditions which exist in the
pile.
·
Consol 1 s claim (initial brief, p. 12} that it is being
perpetually held to be a guarantor of the pile ' s conformity
with the mandatory safety standards is without merit becaase
it is its act of reacquiring the preparation plant which
caused MSHA to cite Consol for violations in the pil e. If
Riverside had not defaulted on its payments to Consol, Riverside would have continued to be held responsible by MSHA for
the hazardous conditions in the refuse pile.

Consol ' s Claim that the Secretary Failed to Prove Violations
Consol's claim (initial brief , pp. 10-11) that the Secretary failed to prove that violations occurred is based on the
contentions already rejected above, namely, that the Secretary
did not prove that Consol owned or controlled the refuse pi le
at the time the citations were issued . Consol did not introduce any evidence whatsoever to rebut the Secretary's evidence
showing that the refuse pile contained the violations alleged
in the citations. ~NO of the citations (Nos. 2022955 and
2022956) were issued on September 6, 1983 . They alleged that
Consol had violated sections 77.215(a) and 77 e2l5(h) for failure to compact the materials deposited on the pile so as to
bring about a minimum flow of air and for failure to compact.
the refuse to form a 27-degree slope (Finding No. 16 above ) .
Consol's initial brief (p . 10) claims that it constructed the
pile before MSHA had promulgated a regulation requiring a 27~
degree slope and that MSHA does not require an operator to
remove old refuse and recompact it to a 27 - degree slope. It
should be noted that Consol was c~ted f or the sloping vi o l ation before it ever sold the Buckeye facil.i t ies to Riverside.
Consol did not abate the sloping violation nor correct the
erosion in the pile and MSHA did not pu t any p ressure on Consol to abate the violation .
Instead, after Ccnsol sold the
facilities to Riverside , MSHA modified the citation issued tc
Consol to require Riverside to abate the sloping and erosion
conditions in the pile. When Consol reacquired the preparation plant, MSHA could j ust as easily have modified the original citation (No. 637725) again to show that Consol was once
again obligated to correct the sloping and erosion conditions
in the pile. The fact that MSHA issued an entirely new citation (No. 2022956) does not change the fact that Consol was
obligated to correct those conditions , especially since the
conditions resulted from Conso l 's poor compacting procedures
when the pile was originally created {Finding No. 11 above} .
The third citation (No. 2123823) was issued by MSHA on
October 24, 1983, and alleged that Consol had violated section 77.215(j) by allowing fire to exi~t in the pile. MSHA's
evidence shows that when the inspector ·examined the pile on
September 6, 1983, he suspected that a fire had started in
the interior of the pile at the time he wrote the two citations issued that day, because the surface of the pi l e was
warm to his touch . The inspector knew that the erosion which
he had observed in the pile for several years was allowing
air to enter the pile and he believed that the oxygen in the
air had resulted in the commencement of a fire, but he could
not see any smoke on September 6 to confirm his suspicions.
When the inspector returned to the refuse pile on October 24, 1983, he observed smoke and knew that the pile was on

·350

fire (Finding No. 17 above). The witness introduced as Exhibits 3A through 3F some color photographs which clearly show
the hazardous conditions at the pile. The photographs were
taken on July 17 , 1984 , the day before the hearing was held ,
rather than on October 24 , 1983 , the day the citation was
written. The photographs leave no doubt but that the refuse
pile is badly eroded, is allowing materials to be deposited
on the county road near the pile , and is exposing the p eople
of Stephenson, West Virginia, to the unpleasant fumes of the
burning pile!
Inasmuch as Consol introduced no evidence to rebut the
Secretary 's evidence showing that the violations occurred ,
and in view of the fact that I have hereinbefore rejected
Consol' s claims that i t does not own or control t.he pile and
cannot be validly cited for violations in the pile , I find
that the violations occurred, that the citations should be
affirmed , and that Consol's ·notices of contest filed in Dock et Nos. WEVA 83-280-R , WEVA 83-28l-R 7 and WEVA 84-16-R should
be dismissed .
Consol's Complaint about the Identification No. Used to Cite
Violations at Refuse Piles
As explained in Finding Nos. 20 and 21 above; MSHA developed a numbering system to identify all refuse piles following the Buffalo Creek disaster.
That number for the Buckeye refuse pile is 1211WV40070-01. The first four numbers
show that the pile was formed from refuse from a bituminous
coal mine. The two letters indicate that the pile is located
in West Virginia . The number " 4 " indicates that the pile is
located in MSHA District No . 4 . The numbers after "4" are
simply s e quence numbers, except that the number after the
dash is intended to show the number of refuse piles at any
one location.
Consol's initial brief (p. 9) contends that MSHA ought
to cite violations at refuse piles under the refuse pile number described in the preceding paragraph, instead of citing
violations under the identification number of the coal mine
or preparation plant which contributes refuse to the pile.
Consol notes that refuse piles may be used for reclamation
of the coal which is deposited in them .
If that occurs, the
refuse pi l es are given their own mine identification numbers
just as if they were producing coal mines .
I am discussing Consol ' s complaint about MSHA ' s choice
of identification numbers in an effort to cover all of Consol ' s arguments , but I fail to see how the instant claim advances Consol ' s position in this proceeding . First, the
Buckeye refuse pile is not being reclaimed by anyone to obtain coal. Therefore, it has not been given an independent

·351

mine identification number, nor has any operator filed a legal
identity form to show that it is an operator doing reclamation
work. Second, all of the citations here involved contain a
reference to Refuse Pile No . 1211WV40070-01 and therefore
clearly identify the Buckeye refuse pile by the number which
Consol would like to see MSHA use. The citations also have
Consol's name in Item 6 as the operator of the refuse pile and
show in Item 8 the identification number of the Buckeye Preparation Plant.
MSHA' s witness testified that when an identification nurn-..
ber is assigned to a mine or a preparation plant, that number
is not changed when a different entity assumes control of the
plant (Finding No. 21 above) . When Riverside became the operator of the Buckeye Preparation Plant , all citations issued
during Riverside's brief ownership named Riverside as the operator and continued to use the same identification number
for the preparation plant which had been assigned to the plant
when it was fir st owned by Cons olo
A citation or order issued by MSHA would be useless for
bringing about abatement o f unsafe conditions unless it could
be served upon a person who has control of a mine or preparation plant.
That is one of the main reasons for MSHA 1 s requiring operators of mines and plants to file legal identity forms
so that MSHA will be able to obta in action toward abatement o f
the conditions described in the citations and orders. Consequently, it is the person to be served, shown in Item 5 of a
citation or order, who is of primary importance in bringing
about abatement of unsafe conditions.
The citations involved
in this proceeding were served on the persons shown as responsible in Riverside's and Consol ' s legal identity forms . While
the identification numbers of a mine or plant help identify
the facility which has contributed the materials which cornprise the refuse pile, those numbers do not solely determine
which entity MSHA considers to be liable for abating the unsafe conditions . Moreover, as indicated above, MSHA seems to
have allowed for Consol's complaints about the identification
numbers it uses in its citations and or;ders pertaining to refuse piles by using the refuse pile number, as well· as the
preparation plant number , so as to provide as much enlightenment as possib l e for MSHA's purposes and those of the person
who is served with the citations and orders. Therefore, I
find that Consol ' s complaints about MSHA's selection of iden tification numbers when writing citations pertaining to refuse plants are not wel l founded and must be rejected.
WHEREFORE, it is ordered:
Citation No. 2022955 dated September 6, 1983 , alleging
a violation of section 77 . 215(a), Citation No. 2022956 dated

352

September 6 , 1983 , alleging a violation of section 77 . 215(h),
and Citation No. 2123823 dated October 24, 1983 , alleging a
violation of section 7 7 .215(j) , whi ch are the subject of Conso l idation Coal Company ' s notices of contest filed in Docket
Nos. WEVA 83 - 280- R, WEVA 83- 281- R, and WEVA 84-16- R , respec tively , are affirmed , and Consolidation Coal Company ' s not ices
of contest filed in those three docket numbers are dismissed,
for t he reasons hereinbefore given.

~£rt~o/htAdministrati ve Law .Judge

Distribution :
Robert M. Vukas, Esq. , Consolidation Coal Company, 1800 ·~'Jashing
ton Rqaq, Pittsburgh, PA 15241 (Certified Mail)
James· B. Crawford, Esq., Office of the Solicitor : U. s . Department of Labor p Suite 400 , 4015 Wilson Boulevard, Arlington f VA
22203 (Certified Mail)

yh

·353

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

20006

March 6, 1985

DISCRIMINATION PROCEEDING

JESSE J. BRAGG,
Complainant

Docket No. KENT 84-~1-0
PIKE CO 84-2

v•

BIG OAK COAl CORPORATION,
Respondent
ORDER OF DISM ISSAL
Before:

Judge Merlin

On April 12, 1984, an order was issued to Complainant to
show cause why his complaint of discrimination should not be
dismissed for failure to provide certai n i nform ati on . On
September 13, 1984 a second show cause was issued. The period
allowed in these orders for response has expired and no reply has
been received from Complainant .
Accordingly, the case is DISMISSED.

=?~

Paul Merlin
Chief Administrative Law Judge

Distribution:
Mr. Jesse J. Bragg, 513 Thornton Avenue, Princeton, WV
(Certified Mai 1)
Big Oak Coal Corporation, Box 789, Richlands, VA
(Certified Mai 1)
I g1 .

24641

24740

FEDERAL MINE SAFETY AND HEALTH REVI EW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

i . ··::

UNITED MINE WORKERS OF
AMERICA (UMWA) ,
ON BEHALF OF
HARRY PORTER,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. PENN 84-181- D
MSHA Case No c PITT CD 84- 5
Emerald Noo l Mine

EMERALD MINES CORPORATION,
Respondent
DECISION
Appearances :

Michael J . Healey , Esq ., Healey & Davidson ,
Pittsburgh, Pennsylvania, for Complainant ~
R. Henry .Hoore , Esq . , Rose, Schmidt, Dixon
& Hasley , Pittsburgh , Pennsylvania , for
Respondent .

Before:

Judge Broderick

STATEMENT OF THE CASE
I n this proceeding, Complainant Harry Porter contends
that he was denied overtime by Respondent, for whom he was
employed as a miner , because he had requested that a preshift
examination be performed in his work area on January 5, 1984.
He alleges that this request was activity protected under the
Federal Mine Safety and Health Act of 1977 (the Act), 30 u.s.c.
§ 801.
Pursuant to notice, I called the case for hearing in
Pittsburgh , Pennsylvania , on December 11, 1984. Harry Porter,
Mike Hogan , Arthur Kelly , and Terrance Rafferty testified for
Complainant; Donald R. Zitko, Gary Michael Dubois and Guy
Nyswiner testified on behalf of Respondent . Both parties have
filed posthearing briefs. I have reviewed the entire record
and ha ve considered the contentions of the parties in making
the following decision .
·

3 55

FINDINGS OF FACT
1. At all times pertinent to this proceeding , Respondent
was the owner and operator of the Emerald No. 1 Mine near
Waynesburg, Pennsylvania. Complainant Harry Porter was
employed at the subject mine as a miner .
2. Porter worked for Emerald or its predecessor from
January, 1949 to the present. He has held various jobs
including , miner operator and mechanic. He has been . President
of the UMWA Local Union, Chairman of the Mine Committee and
Chairman of the Safety Committee. He was elected to the UMWA
District Executive Board in June 1982.
3. In June 1983 , Porter was appointed a full time UMWA
International Health and Safety Representative . He resigned
that posi tion on December l, 1983, and returned to Emerald as
a general laborer. He was working the midnight shift on
January 5, 1984 .
r
4. Emerald had a policy of making overtime work available
for its employees both on production and maintenance sections.
Porter worked overtime after returning to Emerald in
December , 1983 , more than half the time .
In most of the
instances when he did not work overtime ; it was by his own
choice. He was the most senior employee on his shift in ·the
general labor classification .
5. When a production shift works overtime, at least one
miner is designated to bring the bus out of the section in
order that the next shift have transportation in. That miner
does not receive overtime.
6 . On January 5, 1984 , Porter·was assigned to work with
Terry Rafferty in a non- production area ' picking up cables and
hoses , inspecting the battery charger and other miscellaneous
duties . They were to work without supervision and were given
their own mantrip or bus to travel 'to the work site.
7 . When they arrived at the work area , Porter looked
for evidence that a preshift examination had been made and
was unable to find any. He called shift foreman Donald Zitko
to report this fact and Zitko told him he would send someone
to perform the examination.
Zitko did not exhibit any
annoyance or hostility toward Complainant as a result of the
call .

356

8.
Zitko directed Construction foreman . Guy Nyswiner to
perform the preshift examination and he did so. Thereafter,
Complainant and Rafferty began their work. Nyswiner did not
display annoyance or hostility toward Complainant because he
asked for the preshift examination .
Zitko later told Nyswiner the areas of the mine that
9.
Nyswiner should examine prior to the next shift. He also
told him that the bus \vhich Porter and Rafferty used would be
needed to provide transp~rtation in for the next shift.
10. Nyswiner told Complainant and Rafferty that they
would be unable to work overtime that morning. When
Complainant asked why, Nyswiner replied that Zitko directed
him to have the bus available for the next shift.
11 . Complainant left the mine at the end of the shift.
He asked Zitko why he was refused overtime and Zitko said he
did not know.
Zitko denied telling Nyswiner that Complainant
could not work overtime .
12 . Nyswiner interpreted Zitko's instruction to have the
bus available for the next shift as a direction that Complainant
and Rafferty could not work overtime.
Zitko testified that
arrangements could have been made to have Complainant and
Rafferty picked up and taken outside by another vehicle but 11 it
would have been difficult ."
(Tr . 147). Complainant did not
request such arrangements and the company did not offer to
attempt to make them.
ISSUES
1. Whether Respondent discriminated against Complainant
in denying him overtime because of ~ctivity protected under
the Act?
2.

If so, to what relief is Complainant entitled?

CONCLUSIONS OF LAW
Complainant and Respondent are protected by and subject
to the provisions of the Mine Safety Act, and specifically
section lOS(c) of the Act .
In order to establish a prima facie case of discrimination, a miner has the burden of establishing that he was
engaged in protected activity, and that he suffered adverse
action which was motivated in any part because of that activity.

<~57

.

Secretary/Pasula v. Conso-l idation Coal Co .. , 2 FMSHRC 278 6
(1980), rev ' d on other grounds sub nom. Consolidation Coal
Co. v. Marshall; 663 F.2d 1211 (3d Cir . 1981) ; Secretary/
RObinette v. United ca·stl·e Coal Co . I 3 FMSHRC 803 (1981) i
Secretary/Jenk1ns v . Hecla - Day ·M ln·e s Corporation , 6 FMSHRC
1842 (1984). The operator may rebut the prima facie case by
establishing that the miner was not engaged in protected
activity, or that the adverse action was not motivated, in
any part, by the protected activity . The operator may also
raise an affirmative defense, if it cannot rebut the prima
facie case, by showing that it was, in part , motivated by
unprotected activities and that it would have taken the
adverse action 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 (1982) ;
Secretary/Jenkins v . Hecla-Day, supra. See also Boich v.
FMSHRC , 719 F . 2d 19 4 (6th Cir. 1983); Donovan v . Stafford
Construction Co. , 732 F : 2d 954 (D . C . C1r . 1984 ). I reJect t he
suggestion in Respondent ' s brief that the Commission should
adopt the test set out in the earlier Boich case : Boich v.
- FMSHRC, 704 F.2d 275 (6th Cir. 1983), in which the court held
that an operator does not bear the burden of proof to establish
his affirmative defense but only the burden o f coming forwar d
The 6th Circuit reversed i ·ts ear l i e r
with the evidence .
decision on the basis of NLRB v . Transporta·tion I"ianagement
Corp ., 462 U. S . 393 (1983-)-.--My reading of Commission decisions
subsequent to Tran·spo·r tation Management persuades me that in
terms and in actuality, it has followed the Pasula test and the
rationale of the second Boich decision.
PROTECTED ACTIVITY
Complainant is a miner with extensiv e experience . He is
safety conscious and is known by mi~e management to be safety
conscious. He is especially con·cerned about the importance
of preshift examinations because he took part in investigations
on behalf of the Union of explosions in non-face areas (not
involving Respondent's mine). His request for a preshift
examination of the area to which he was assigned oh January 5 ,
1984, was clearly related to safety, and therefore, was
activity protected under the Act.
ADVERSE ACTION
Complainant was denied or did not receive overtime work
and overtime pay on January 5, 1984. Respondent argues that
the amount involved ($20 . 14) is so small as to be de minimis.
From the public point of view, which is the primary-polnt of
view of section 105(c), even a minimal penalty administered

because of safety complaints is serious.
I hold that the
denial of 1 hour overtime work and overtime pay is adverse
action under the Mine Act.
MOTIVATION FOR THE ADVERSE ACTION
Zitko, the shift foreman , was responsible for assigning
tasks and areas of responsibility to t he foremen, and to
have a l l working ·areas preshifted for t he following shift.
Zitko was also responsible for getting the mantrips to the
"bottom 11 for the use of the incoming day shift. · When he
received the call from Complainant Porter , he realized that
the area in which Porter was to work had not been preshifted
by the prior shift, apparently because they were not aware
that the midnight shift was going to work in ·the area. 1.
accept Zitko's testimony that he did not deny Complainant
the opportunity for overtime, but merely instructed Nyswiner
to have the car Complain ant rode in at the bottom at the end
of the shift. Nyswiner interpreted this to mean that
Comp l ainant could not work overtime.
I find the testimony
of Zitko and Nyswiner to be logical and truthful.
I am
persuaded that the denial of overtime to Complainant was not ,
in any way, related to his request for a pre shi ft examination. There is no evidence of annoyance , anger or animosity
on the part of Zitko or Nyswiner .
There is no direct evidence of a discriminatory motive , and no evidence from which
such a motive could reasonably be inferred. Therefore, I
conclude that Complainant has failed to establish a prima
facie case of discrimination under the Act, and his case
must be dismissed.
ORDER
Based on the above f indings of fact and conclusions of
law, the above proceeding is DISMISSED.
((A,tL.c -_)

.)

.A1:3:-tJdtA--t ~;i

James A: Broderick
Administrative Law Judge

Distribution:
Michael J . Healey, Esq., Hea l ey & Davidson, 1906 Law and
Finance Building , Pittsburgh, PA 15219 (Certified Mail)
R. Henry Moore , Esq . , Rose, Schmidt , Dixon & Hasley,
900 Oliver Building , Pittsburgh , PA 15222 (Certified Mail)
/fb

·3 5 9

FEDERAL MINE SAFETY AND HEAlTH REVIEW COMMISSION
OFFICE O F ADM INISTRA TI YE LAW JUDGES
333 W . CO L>A X AVEN UE. 5UITE .400
DfNVfR COlORADO 80:20 4

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

v.

CI VI L PENALTY PROCEEDING
Docke t No. WEST 84-26-M
A.C. No. 05-00791-05510
Schwartzwalder Mine

COTTER CORPORATION 1
Resp ondent
DECISION
Appearances : James H. Barkley i Es q.~ and Margare t Miller . Esq .,
Office o f the Solicitor , U .S . De partment o f Labor 1
Denver, Colorado,
for Petitioner ~
Barry D. Lindgren u Esq ., Denver , Colorado ,
for Responden t.
Before :

Judge Carlson
BACKGROUND

This case arose out of an inspection of the Schwartzwalder
underground uranium mine owned by Cotter Corporation (hereinafter
"Cotter">. A representative of the Secretary of Labor (the
Secretary) conducted the inspection on October 6v 1983 and issued
the single citation which is the subject of this proceeding on
the same day . A hearing on the merits was held on September 10 ,
1984 at Denver, Colorado, under provisions of the Federal Mine
Safety and Health Act of 1977, 30 U.S . C. § 801 et seq ., (the Act).
Cotter filed an extensive post-hearing brief; the Secretary
ultimately elected not to do so.
The Secretary seeks a $180.00 civil penalty based upon his
inspector's finding that Cotter violated the mandatory safety
standard published at 30 C . F.R. § 57.18-25 . That standard
provides :
No employee shall be assigned , or allowed , or be required to perform work alone in any area where hazardous
conditions exist that would endanger his safety unless
his cries for help can b e he ard or he can be seen.
Richard Coon , federal mine inspector, testified for the
Secretary. Three miners, as well as a shift boss and the mine's
safety and training specialist, t e stified for Cotter.

3GO

REVI.S~·I

AND

DISCUSSI'J~.i

OF THE EVIDENCE

I

The evidence shows that when Mr . Coon inspected the mine on
November 6, 1983, he saw Romo l a Lopez operating ~ jackleg drill
in stope 17 - 3. Lopez was working ~ithout a partner in the stope
which was about 5 feet wide and 10 to 12 feet high. Lopez told
the inspector- that he ordi.nari l y worked ;.yith a par~ner 1 but that
he did not have one that day.
The nearest work station for other
miners was stope 17-4 , some 50 to 60 feet distant, where two
miners, Paul Herrera and Bobby Varela were drilling and performing other tasks.
Persons in 17-4 could not hear or see a miner
in 17-3. The shift had begun at 8:00a.m.~ the inspector
climbed up into stope 17-3 and observed Lopez sometime betwGen
10:00 a.m. and 10:15 a .m. These facts are not in dispute.
The inspector regarded use of a jackleg drill as inherefi~ly
hazardous. This perceived hazardous activity couple6 with
Lopez 1 s isolation from fellow employee0 caused the Inspe ctor to
issue a citation and witharawal order ~/ alleging viol Ati on of
the 11 'Norldi'lg alone 11 standard.
Respondent presents multipl~ defensAs.
It contends that
operation of a jackleg drill is not a ''hazard~us condition~
<.v-ithin the meaning of the cited standard~ that Lopez "ccnld oe
heard or seen on a regular basis commensurate with the risk
involved; " and that he \,;as not "v:orking alone " within th .::: S"2tlSG
intended by the standard.
The fi r st argurnent lacks merit. The undisputed evidence
shows that the jackleg 6ri l l used by Lopez weighed about 100
pounds .
Inspector Coon, relying on many years' experience as a
miner and an inspector, descrihed at length the mishaps t.hat
could befall a jackleg operator. The dril l , Coon claimed, is
basically unstable with its single support leg , and may fall over
on the operator, pinning l1im against the floor or wall. Also,
the drill steel may break , causing the drill to pitch forward
unexpected l y; or the steel may become stucic during drilling <Etd
t he entire drill may rotate, inflicting injuries upon the
operator as he tries to control it.
His opinion \'?as sup£)orted by cornputer- ge:lcrated SD!tE<~arie:s of
drilling accidents in underground metal and nonmetal mines for
th2 calend;'lr y ears 1981 't.hrough 1983 and rar.t r;f 1984. Toget.h2r,
these rerorts show that injury accidents to jackleg operator~ are
comraon. "!__!

!/

The order is not at issue in this proce2ding.

2/

Respondent suggests that the reports are oE doubtful rele-

~ance since many of the entri8s Jo not identify ~he type of drill

involved except as "not [a) roof bolter . " In th ~ 1983 report
(exh i bit P-4) , however, 40 out oE 148 accident dascriptions
specify that the drill involved was a jackleg. aeports for the
other years are similar.

A report~/ compiled oy MESA, MSHA ' s predecessor ag e ncy ,
from figures gat hered in 19 73 and 1974 (exhibit P-1) , reached the
conclusion that 31 percent of the injuries in underground metal
and nonmetal mines involving machinery were c aused by rock drills .
Of thes e , 55 percent were produced by jackleg drills. The report
described essenti all y the same types of hazards as those
described by the inspector in this case.
Respondent sugg es ts that the age of the report renders it
invalid .
In this r egard, respondent specifically urges tha t the
repor t does not and cannot show the effects of the tigorous
traini ng program for miners required under the subsequent 197 7
Act.
Thi s may be true with respect to the weight to be accorded
the nu rr.bers of accidents in 19 73 and 1974 .
Absent evidence o f
any sigr~ificant change in the design or use of jacklegs ; however ;
the repor t's analysis of the basic hazard presented by the drills
is entitled to evidentiary weight .
The numbers of accidents
reported from 1981 through 1984 show that despite training programs , use of jacklegs continues to cause accidents .
Beyond attacking the 1973-74 report q respondent presented
evidence that jackleg drills in its Schwartzwalder mine had been
involv ed in no significant accidents . This anecdota l approach
does not rebut the solid evidence of hazard prese nted by the
inspector and reflected the MSHA statistics . Where miners use ~
jackleg dr ill , a substantial possibility of injury is present .
Nor is it significant that the evidence shows that the injuries
most likely to result from jackleg drill accidents would not be
life threatening or grievous .
A condition which presents an
opportunity for injuries of any magnitude involves a " hazard" .
I hold that the area in which jackleg drilling takes place
is one "where hazardous conditions exist," within the meaning o f
30 C . F.R . § 57.18 - 25.
II

Before considering respondent•s remaining defenses, some
additional factual background is necessary . The inspector agreed
that Varela and Herrera , the two miners in stope 17-4 , had told
him that the shift boss had instructed Herrera to check on Lopez .
His recollection however , was that the instruction was to check
"every hour or so . "
Redmond , the shift boss, and Herrera, Varela and Lopez,
however , insisted that Herrera had been instructed to " bounce
back-and-forth between Varela and Lopez." These witnesses were

3/ ''Analysis on Injuries Involving Jackleg Rock Drills
ffnderground , 1973 - 1974 , " R.H . Oitto, Health Safety and Analysis
Center , Denver , Colorado .

362

sequestered during the presentat'on of the respondent ' s case , and
their testimony was essentially consistent as to what each was
doing on the morning of the inspection and the time that Lopez
was alone and the time that he was not .
Shift boss Redmond
maintai n ed that Herrera was to have alternated his presence
between the 1 7- 4 and 17-3 areas depending on what Vare l a and
Lopez were doing at any given time in the mining cycle (Tr . 103) .
Lopez indicated that he had three holes to drill on the mo r ning
in question before loading and shooting explosives .
Each hole,
he said , should take about 10 minutes to drill. The shift began
at 8 : 00 a . m. and he actually reached 17-3 at about 8 : 30 a . m. He
performed non - d r illing tasks until about 8 : 40 a . m.
Herrera , he
testified, arrived there about a half an hour after he did, or at
about 9:00a.m., and spent abou t 10 or 15 minutes with him.
About 3 or 4 minutes later, acc9rding to Lopez, Redmond , the
shift boss, climbed i nto the stope and stayed about 15 minutes.
~~hen Redmond left, Lopez, according to his own account r had about
2 minutes of drilling left. The MSHA inspector and Mr. Duffy ,
the company safety specialist , appeared 3 or 4 minutes after
Redmond left, Lopez testified, and the inspector told h im to shut
down and go find Redmond.
Lopez wore no wa t ch on that day, and
acknow l edged that he estimated the times about which he testi fied.
He further acknowledged that on other days he had sometimes
drilled for as long as an hour by himself , an~ that while miners
ordinarily did not work alone, it was not uncommon for them to
do so (Tr. 116 - 117). On the day in question, however, h is
impression was that he spent no more than 10 minutes drilling
alone (Tr. 119) .
Herrera tes t ified that he got to the 17-3 stope at about
9:00 a .m. and stayed there about 15 minutes, during which time
Lopez drilled for about 10 minutes. As he walked along the
rnanway after coming out of the stope, Herrera met Redmond coming
toward 17-3. According to Herrera, Redmond had not told him how
often he was to check Lopez ; as a miner's helper , however, he
knew what Lopez was assigned to do t hat day , and therefore knew
that he should be with him about every half hour to help (Tr.
132 - 133).
Vare l a , the third man on the crew , testified that he spent
most of the morn i ng tramming.
He stated that he was never up
in sto pe 17- 3, but that he twice walked down the manway to the
opening of 17 - 3 and listened to the sound of Lopez's dril l.
Varela maintained that since he heard the drill starting and
stopp i ng , he knew that Lopez could not be in difficulty.
Randy Duffy, respondent ' s safety and training specialist,
accompanied the federal insp~ctor on his visit the morning of
October 6th . Duffy testified that as he and the inspector
proceeded toward the 17-3 stope , they me t Mr. Redmond in the
manway coming from 17-3. According to Duffy, when he and the

·363

inspector reachE::6 Lop(_·::. ht: v:~::: c.irilliTJ; \ ' i'L:1 2pl)ro ximately 4 feet
of a 6-foot drill steel in the hole . The inspection party remained there for about 15 minutes whjle the inspector shut down
the 17-3 area because Lopez was drilling ~ithout a partner.
Lopez was sent to find ~edmond, the shift boss .
As he and the
inspector departed, he LErti~ied , they met Herrera who said he
was on his way to hel? ~o?ez load the explosive rounds for which
he had bee n drilling.
According to note s Duffy took at the time of i~spection, the
alleged violation was ajated at about 10:00 a.m .
(According to
the inspector's citatic , and testimony the violation was observe6
a·t 10 : 15 a.m.).
Mr. Duffy acknowledged that the ~practice" at the Cotter
mine was to use two-man crews, and that it was not "normal" for
one miner to work by himself {Tr. 154-155) .
In his view, however , where manpower was short , a miner was not working Gal one "
if other miners were working on the same level to ~check on him . "
III
I reject the suggestion that Mr. Varela?s two brief pauses
to listen at the base of stope 17-3 contributed in any substantial way to the safety of the miner drilling above.
No
evidence indicated that Varela's presence there was other than
desultory and momentary.
Listening for "cries for help" {or the
absence of drilling noise) on such a random and transient basis
cannot satisfy the requirements of the standard.
Cotter ' s strongest argument centers on the part-time
presence of Herrera and Redmond in stope 17- 3. Lopez was not
required to " work alone, " the argument goes, because he was not
alone for much of the morning , and because the standard imposes a
less - than-absolute requirement that a co-worker be present at all
times.
The Commission apparently has had no occasion to construe
the "working alone" standard cited by the Secretary in this
proceeding.
It has, however , dealt with a virtually identical
standard, 30 C . F . R. § 77 . 1700, which applies to surface coal
minese That standard provides:
No employee shall be assigned, or allowed, or be
required to perform work alone in any area where
hazardous conditions exist that would endanger his
safety unless he can communicate with others, can
be heard , or can be seen.

The only difference of substance between the surface
standard and the underground standard is the addition of the
phrase "unless he can communicate with others" in the forme:r .
In Old Ben Coal Company, 4 FMSHRC 1800 (1982 ) , th e
Com..·nission de f ined the term "alone" as it appears in the surface
mining standard . The Commission held:
The term "alone," which is not defined in t he regulation, refers in common usage to being separated or
isolated from others. Webster's Third New International
Dictionary (Unabridged), at 60 (1971) .
In our view , the
standard is directed at situations where miners are ef fectively u or for practical purposes , working alone
notwithstanding some occasional contact with others .
Here, there is no dispute that Mitchell was working by
himself on the coal pile. Old Ben argues that Mitchell
was part of a "team , ~ but the evidence shows that no one
observed or had contact with him on a regular or continuing basis and Old Ben has conceded that no one was
responsible for keeping in touch with him. Such interaction as Mitchell had with the preparation plant employee was sporadic and insubstantial o
Cotter , in the present case u maintains , in effect , that
Lopez was a member of a three-man 1'team 11 or crew and that Herrer a
was "responsible" for contacting Lopez on a regular or continuing
basis. Thus, Cotter relies heavily on Old Ben to show that Lopez
was not working alone in the sense intended by the standard .
Before examining the validity of Cotter's contention, we
must consider more of the Commission ' s reasoning in Old Ben. At
the very core of that decision is the following construction laid
upon the terms "communicate," "be heard," and ''be seen." The
Commission said this:
In construing these terms we reject either an approach
requiring constant communication or contact under all
conditions , or an approach allowing any minimum level
of communication or contact to satisfy the standard.
Rather, we hold that the standard requires communication
or contact of a regular and dependable nature commensurate
with the risk present in a particular situation. As the
hazard increases, the required level of communication increases.
(Emphasis added.)

In applying this test to the facts in the present case, one
must first decide whether the "communication 4; and contact" provided by Cotter for Lopez were of a " regular ~nd dependable
nature ." The facts in that regard are not as clear as they might
be , but the preponderant evidence tends to show that Herrera was
told that he was to divide his time between Varela and Lopez, and
that based upon past experience and the nature of the mining
cycle, Herrera understood that he was to be present with Lopez at
approximately 30-minute intervals .
In the most literal sense;
the contacts may have bee n both " regular " and "dependable, " but I
have difficulty wi th the length of the visits. None of the three
crew members wore a watch underground, and all testimon y as to
time was therefore estimated. Given the estima·tes most favo rab le
to Cotter, Lopez 7 s morning was as follows: He reached the 17-3
workplace at about 8:30 a.m. and after completing some preparatory work not invo lvi ng the drill , he was ready to drill at
8:40 a.m. Herrera showed up at about 9:00a.m. and stayed for
10 to 15 minutes (Tr. 110 , 124). Redmond , the shift boss 9
arrived 3 or 4 minutes after the time Herrera left, and staved
about 10 or 12 minutes (according to Redmond himself) or 15mi nutes (according to Lopez) (Tr . 90, 110, 111>. Lopez estimated
his actual drilling time while alone at 5 to 10 minutes (Tr . 119} .
He also insisted that the total drilling time shou l d have taken
no more than 10 minutes for each of the three holes (Tr . 108) .
Inspector Coon maintained that he arrived at the 1 7-3 stope at
10:15 a.m. and that Lopez was still drilling . Mr. Duffy insi sted
that the arrival t i me was 10 : 00 a.m.
Accepting the 8:40 a.m . beginning time for drilling, and the
most favorable 10:00 a.m. time for the arrival of the inspection
party , the respondent ' s versions of the sequence and length of
the various visits to stope 17-3 do not square with the total
elapsed times by the clock . Between 8:40a.m. and 10:00 a.m. an
hour and 20 minutes elapsed. Lopez admits that he began drilling
at 8:40a.m., and all witnesses agree that he was still drilling
when the inspector arrived at the scene. No evidence suggests
that Lopez performed any non-drilling tasks after 8:40 a.m. The
most favorable estimates o£ Herrera ' s and Redmond's presence in
stope 17-3 add up to but 30 minutes. Consequently, Lopez was
alone for 50 out of the 80 minutes after the drilling began.

4/ The concept of "communication" as used in t.he surface mining
itandard and dealt with by the Commission in Old Ben, is essentially a surplusage.
It adds nothing to the mere notions of
seeing and hearing set out in the underground standard cited in
the present proceeding.

·366

One may question why the drilling took 80 minutes when Lopez
insisted that each of the three holes required but 10 minutes.
Apart from the possibility that Lopez's,estimates of drilling
times were too optimistic, it is quite likely that he was speaking only o f the time that the drill was actual l y penetrating rock .
The evidence of record convinces me that the hazards attendant to
use of the jackleg drill are not limited to those which occur
when the drill is running. Accidents may occur when the dri l l is
repositioned between holes , when the leg is being extended or
retracted , when drill steels are being replaced, etc. This is
especially so because of the weight and bulk of the dtills.
The question thus becomes whether there was contact with
Lopez of a "regular and dependable nature commensurate v1i th the
risk present'' in drilling with a jackleg when he was in fact
alone or isolated for 50 out of 80 minutes. For purposes of this
decision, it will be assumed that general instruction for Herrera
to be present to help Lopez from time-to-time, as the mining
cycle required, meant that he would come to stope 17-3 on a
reasonably regular and dependable basis. This is so even though
the testimony made it abundantly clear that safety was never
articulated as one o£ the reasons for the presence of a second
man. The "regular and dependable"- requirement is surely met
whenever a second miner is present on a reliable basis, no matter
what the motive . Regarding Mr. Redmond f s presence, the situation
is less clear. The shift boss testified that it was his custom
to "periodically check on employees" (Tr. 89). There v.ms no
evidence that his visits to various worksites for the crew were
regularized in any sense , or that they were coordinated with
Herrera ' s visits , or indeed whether his actua l presence at stope
17 - 3 sometime after Herrera left was a mere fortuity.
It will
also be noted that while Herrera suggested that he understood he
should check on Lopez every 30 minutes, he in fact did not return
to stope 17-3 until nearly an hour a f ter his f irst visit. Nevertheless, for the purpose of this decision, since Herrera and
Redmond together did in fact spend 30 minutes in stope 17 - 3, it
will be held that their presence for those minutes was in general
accord with a plan to provide periodic contact with Lopez on a
regularized basis.
Concerning the second part of the question, however, I a m
unable to conclude that two lS~minute visits during an 80-minute
span of drilling provided a contact with Lopez "commensura te with
the risk present." I n r eaching this conclusion I acknowledg e
that the hazard presented in this case was of a lesser magnitude
than that prese nted in Old Ben , suora . There, death or serious
injury we re likely in tl1"8 ev -.:: nt of an accident.
In the present
case the evidence from the inspector and the supporting accident

3G7
,.

records tends to sho~ that th e overw~elming number of jackleg
accidents are les s than life-threatening. For that reason I
would not and do ne t conclude t hat the full-time presence of
another miner waE nesessary . On t he other hand, Lopez worked in
isola t ion for at l~as t 50 minutes, giv e n the reading of the
evi6ence most fa v~ ~a b le LO Cotter . Since there was a reasonab l e
possibility that d ~ ring that time the heavy drill could have
toppled on him r e no ering him unconscious , fracturing bones or
causing laceration E leading to dangerous blood loss, I must hold
that th e two visits , spaced as they were, did not constitute a
level of contact corr@ensurate with the risk.
·
In this regar ~ another consideration must be borne i n mind .
The Commission in Old Ben , supra , made this observation :
[N]othing in the standard suggests that prevention
is not a concern •. •• The standard has a dual purpose 8
to prevent accidents by timely warning when possible
and to expe dite rescue and minimize injury when an
an accident does occur ,..
In the present case, because of the confined and secluded
nature of the workp~ace , the preventive purpose of the standa r d
could simply not be achieved without the presence of another
miner .
I therefore conclude that in this case a miner was allowed
to work alone in an area where hazardous conditions existed that
endangered his safety . Moreover , the area was one from which his
cries for help could not be heard and at which he could not be
seen.
I further conclude that the length and frequency of the
periods of contact with the lone worker by other mi ners,
including supervisory personnel, were not commensurate with the
risk present. ~/

21

In reaching this conclusion I have not overlooked Cotter's
contention that the "working alone" standards have application
only to hazards " outside normal conditions in the mining
industry. 11 Monterey Coal Company, 3 FMSHRC 439 (1981). Cotter
asserts that this limiting definition was adopted by the
Commission in Old Ben , supra, and hence must be followed.
It is
true that the administrative law judge whose result was affirmed
in Old Ben used such a test. 3 FMSHRC at 1890-91. The
Commission, however, assiduously avoided r atification of that

(Footnote continued)

·368

""r l :

.... \

The Secretary charges that the. v iolation in ~n1s case was
"significant and substantial" under section 104(d)(l) of the Act.
Such a violation exists where there is "a reasonable likelihood
that the hazard contributed to wii1 result in an injury or illness of a reasonably serious natu !·e . " Cement Division, National
Gypsum Co., 3 FMSHRC 822 (1981).
In the present case, I conclude
that the violation does rise, by a sma.ll ;?;argin, to the "significant and substantial" level. The most likely inju~ies from a
jackleg accident would range from . minor to moderate in severity .
There is a reasonable likelihood 8 nevertheless , that injuries
could be reasonably serious . Therefore, the Secretary properly
classified the v iolation as "significant and substantial . ~

v
The Secretary seeks a civil penalty of $180.00 .

Section

llO(i } of the Act requires the Cornrnission u in penalty
assessments u to consider the size of the operator 9 s business 9
its negligence; its ability to continue in business u the gravity
of the violation, and the operator's good faith in seeking rapid
compliance .
The recor d in this case contains no direct evidence
bearing on any of these elements e~cept for gravity and good
faith. Owing to ·the nature of the hazard discussed earlier in
this decision 0 the gravity of the violation should be considered
moderate . Compliance was immediate . Given the lack of evidence
on the other factors, none can be counted against Cotter. Upon
the evidence before me, I concl ude that $50.00 is an appropriate
penalty.

Fn. 5/ continued
part of the decision below, simply stating that under an
"industry standards" test, or the "ordinary hazard" test urged
by the Secretary, the hazard in question was a "hazard~ within
the meaning of the standard. Old Ben, 4 FMSHRC at 1802. I do
not speculate on what the result would be in this case under an
~industry standards" test.
I find no hint in the standard that
any specialized or esoteric meaning of hazard was intended. I
construe the standard to call for an ordinary interpretation of
the phrase "hazardous conditions," and I am convinced that an
objective factual showing that a hazard exists is sufficient.

CONCLUSIONS OF LAW
Based upon the entire record herein , and in accordance with
the findings of fact contained in the narrative portions of this
decision , the following conclusions of law are made:
(1) This Commission has the jurisdiction necessary to
decide this case.
(2)
The respondent, Cotter, violated the mandatory safety
standard published at 30 C.F . R. § 57 . 18-25 as alleged in the
citation herein.
(3)
The violation was "significant and substantial " within
the meaning of section 104(d)(l) of the Act.
(4)

The appropriate civil penalty for the violation is

$50.00.
ORDER
Accordingly, the citation is ORDERED affirmed § and Cotter
shall pay to the Secretary of Labor a civil penalty of $50 .00
within 30 days of the date of this decision .

/'7

~;/

~~~~~2-;7Jl
< '/

ohn A. Carlson
dministrative Law Judge

Distribution:
James H. Barkley, Esq . , Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building , 1961 Stout Street~ Denver,
Colorado 80294
(Certified Mail~
Barry D. Lindgren, Esq . , Mountain States Employers Council, P.O
Box 539, Denver, Colorado 80201
(Certified Mail)

/blc

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

_.,.

March 6, 1985

DISCRIMINATION PROCEEDING

NANCY S. BOWEN,
Complainant

Docket N.o. WEVA 84-84 - D
v.

HOPE CD 83-32

POND CREEK MINING
COI'~lPANY,

Respondent
ORDE R OF DISMISSAL
Befo1e:

Judge Merlin

On April 13 9 1984 ~ an order was issued to Complainant to
s how cause why her complaint of discriminatio n shoul d not be
dismissed for fai lure t o provide certain information . 8n
September 13, 1984 a second show cause was i ssue d. The period
allowed in these orders for response has expired and no reply has
been received from Complainant.
Ac c o r d·i n g 1 y , t h e c a s e i s DI SMI S S ED•

Paul Merlin
Chief Administrative Law Judge
Distribution:
Ms. Nancy S. Bowen, 722 Goodman Avenue, Williamson, WV
(Certified Mai 1)
Pond Creek Mining Company, Rawl, WV
/gl

371

25691

25661

(Certified Mail)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLI NE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

MAR~-·

22041

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 84-162
A. C. No . 15-05325 - 0350 4

v.

No " 2 Surface

~-line

LOST MOUNTAIN MINING, INC. ,
Respondent
DECISION
Appearances:

Mary Sue Ray, Esq., Office of the Solicitor ,
U. S. Department of Laborr Nashville , Tennessee 7
for Petitioner ;
Lloyd R. Edens , Es q . , Middlesboro , Kentucky .
for Respondent .

Before:

Judge Steffey

Pursuant to an order providing for hearing issued October 24, 1984, a hearing in the above-entitled proceeding was
held on December 12, 1984, in Hazard, Kentucky, under section
105(d), 30 U.S.C. § 815(d), of the Federal Mine Safety and
Health Act of 1977.
After the parties had completed their presentations of
evidence, I rendered a bench decision, the substance of which
is reproduced below (Tr . 158-169):
This proceeding involves a proposal for assessment of
civil penalty, seeking to have a penalty assessed for an alleged violation of 30 C.F . R. § 77.1001. The evidence shows
the following findings of fact should be made, which I shall
list in enumerated paragraphs.
1. Inspector Harold Kouns went to Lost Mountain Mining,
Inc.'s No.2 Surface Mine on January 31, 1984 , and he was accompanied by his supervisor, Charles Conats.er. Both of the
individuals were concerned about the highwall in the No. 2
Pit area. Inspector Kouns wrote a citation, No. 2196562, in
which he stated that loose hazardous materials had not been
stripped for a safe distance from the highwall for approximately 250 feet in distance. The highwall was approximately
60 feet in height, and the loose material existed while coal
was being removed. The loose hazardous material was taken

372

down to the~ inspector ' s satisfaction by the dragging of a
dragline chain across the face of the highwall, and the inspeqtor term~nated the citation 2 hours after it was issued,
by stating that the loose hazardous materials had been
cleaned off of the highwall . The inspector was concerned
about both loose rocks, and an overhanging of materials
about the middle on the rig!~ side of the area where the end
loading machine was piling up coal and loading trucks.
It
was the inspector's view that the rocks, which he believed
were unconsolidated, could be shaken loose by the drilling
that was taking place in the area. He testified about
experiences which he had had in which rocks had fallen off
of highwalls and bounced off of tires of equipment. and g one
through windshields of end loaders and injured the opera tor .
Consequently , he believed that the violation was seri ousr
and he indicated in his citation that he believed that t h e
operator ' s negligence was moderate , and that i f a rock h ad
fallen , the result might have been a permanent disabl ing
injury.
2 . Russel Draughn is respondent ' s safety and loss
control employee. He testified that he came to the pit area
which had been alleged to have an unsafe highw~ll u and he
stated that he examined the highwall , that he saw n o l oose
material which he felt would have fallen , that he observed
no spalling of materials at the base of the highwa ll 9 a n d
that he did not think that there was any ground for Inspector
Kouns to write a citation.
'
3. Michael Ivey is respondent ' s production superintendent. :He is an engineer, and has worked as an engineer
around coal mines for about 9 years, and he has been ~he production superintendent for about 1-1/2 years. He had inspected the highwall in question on the same morning that
the citation was issued, at about 6:00a . m., at which time
the artificial lighting was sufficien~ to enable him to make
a satisfactory examination , and he felt that there was no
loose material on the highwall . He described in some detail
the method used by respondent to construct highwalls. He
presented as Exhibit B a photograph showing the highwall before any materials were dragged across it. He also presented
as Exhibits C and D pictures of a 50- ton bucket which is
dragged across the highwall to make it safe by removing all
loose material. Materials which are not torn off by the
bucket are packed down by the 50-ton bucket. He addition ally presented as Exhibits H and I two photographs showing
the highwall areas after the 30- foot chains were dragqed
across them, a n d it was his opinion that the materials on
the highwall were loosened by the dragging of the chain, and
that if anything, the wa l l was less safe after th~ dragging
of the chain than it was be:ore.

-37 3

4. A person examining Exhibits B, H, and I would be led
to the same conclusion that Mr. Ivey reached, because Exhibit
B is photographed at an angle which does not enable one to
see with great detail the exact makeup of the material on the
highwall, whereas, Exhibits H and I are in a little mo~e direct focus, and they do tend to show the highwall with greater
clarity than Exhibit B does.
5. Larry Miller is a dragline operator, and he worked in
the No. 2 pit area on January 31, but he did not actually operate the dragline on that day because he was involved in
doing some repairs on the dragline, but he was present. He is
not sure that he personally ran the dragline bucket over that
particular highwall , but he saw nothing about the h ighwal l
shown in Exhibit B which was different from th.e usual highwal l
that he constructed .
It was his opinion that the highwall was
not hazardous .
6. Harold Perkins is an end loader operator fo r respondent, and he has been doing ·that k ind of work f or 5 years" He
stated that on January 31 he hatl been loading trucks for about
2-l/2 . hours before the inspectors showed up, and he did not
think that the highwal1 was unsafe" He said if he had thought.
it was unsafe he would have asked his supervisor to correct
any problem before he ~vor ked under it . He denied tha·t he h a d
ever told the inspector that he thought that. the highwall was
unsafe, or that he appreciated t he inspector r s issuing the
citation abo~t the highwall.
7 . Tobe Lawson is the foreman who was in charge of the
pit area on January 31. He had been making an inspection ,
along with Michael Ivey, before the citation was written, and
he did not think that the highwall had any hazardous loose
materials on it. Both end loaders had stopped operating
after the inspector issued the citation and he wanted to get
the citation abated as soon as possible. Therefore, he
attached the chain, which weighs about a ton, to the dozer 's
blade and dragged it back and forth across the face of the
highwall until the inspector was satisfied that the loose
materials had been removed.
;
8. Charles Conatser, who is an MSHA inspector supervisor, testified in rebuttal that on the morning of January 31 ,
1984 , he saw the highwall as soon as he arrived in the pit
area, and that he felt there were overhanging materials along
the top of the highwall which were hazardous. He also saw
pieces of rock which he felt were loose. They were 8 inches
wide and 12 inches long, and he believed that the highwall
was a hazardous area. He stated that he did not suggest to
Inspector Kouns that the citation be issued. As an inspector
supervisor, he deliberately did not give his own opinion about the highwal l until the inspector had issued the citation .
He stated, however, that if the inspector had not issued the

citation for the highwall, he would have issued a citation .
It was also Conatser's opinion that the chain had improved
the conditions on the highwall and had removed the loose materials . He stated that although Exhibit I still shows an
overhang at the top, that overhang, in his opinion, is less
hazardous than it was before the dragging was done. He agreed
with Inspector Kouns that the hazardous materials had been re moved and that the citation was properly terminated.
9.
Inspector Kouns was also recalled and he specifically
indicated on Exhibit B an area revealing an overhang which he
believed was hazardous.
He also pointed to a place where he
felt the loose rocks existed •. He said that he would issue a
c:i ta tion again i_ :.: he t·.?e]:·e t:o see t.!:!.8 same ccnc.i tions .'_n the
future.
I conclude that the above findings correctly S\.1.Tn.Lilarize
the evidence which has been presented . Section 77 . 1001 read s
as follows:
"Loose hazardous materia, I shall be s ·tripped :fo:c
a safe distance frorn the ·top of pit or highwal1s r and 'che
loose unconsolidated material shall be sloped to the angle of
repose, or b arriers~ baffle boarqsr screens ; or other devices
be provided that afford equivalent protec·tion , ,.
The first matter to be considered in a penalty case i s
whether a viola'cion occurred .
The evidence presented in ·this
case by respondent causes me to feel that there were good
grounds for respondent to believe that no violat ion existed.
When I examined Exhibits B, H, and I, it seemed to me that
Exhibit B, which was taken before any corrective measures
were performed, would be a highwall which seems to be relatively nonhazardous .
If I had been there and only h ad the
view which I can see from Exhibit B, I would be inclined to
agree with respondent 9 S witnesses that the highwall is not so
hazardous as to be in violation of section 77.1 001 .
On the other handr when Inspector Kouns pointed out the
areas on Exhibit B about which he was concerned, there is no
doubt that there is an overhang at that, area. There are
places in that same area down farther on the wall which appear to contain rocks whic h possibly could fall~ and which
may have been loose.
The Seventh Circuit held in Ol d Ben
Coal Corp. v . Interior Bd of Mine Operations Appeals, 523
F.2d 25, 31 (1975), that i nspectors should b e sustained, unless they clearly abuse their discretion, because their concern is fo r the safety of the miners.
While I have no criticism of respondent for the matter,
it is a fact that companies are in business to make a profit,
and they naturally have a somewhat different view from that
of an inspector who is there solely for safety, whereas they
are there to produce coal and keep an eye on safety at the

same time.
It is possible that at times their judgment is
different from that of the inspector, but I believe that this
case presents one of those situations in which . the company has
presented convincing evidence that no violation occurred. On
the other hand, I have to take into consideration that the
inspector was there, and he did look at this highwall under
better conditions for evaluating safety than I have from a
single photograph. Consequently , I am going to sustain the
allegation that there was a violation of section 77.1001.
I
am finding that a violation occurred with the additional support that the inspector's opinion has also been confirmed by
his supervisor who \vas present,. and who did not attempt to
influence him before he had come ·to the conclusion that a
violation existed .
When it comes to the criteria that a judge is required
to consider in assessing a penalty , which of course he has to
do if he f inds that a violation o ccurred, the parties have
entered into certain stipulations with respect to four of
the criteria, whic h are very helpful.
Those s~ipulation s
have been received in evidence as Exhibit 4. They agree that
respondent is subject to the jurisdiction of the Commission.
They state that in 1 983 respondent produced 501,187 tons of
coal from the No. 2 Surface Mine , and )chat Lost Mounta.in . the
respondent in this proceeding, is a subsidiary of Mounta in
Coals, Incorporated : and that the t otal company operations
resulted in an annual tonnage of 1,414,262 ·tons ~ Those
statistics support a conclusion that respondent is a large
operator. To the extent that penalties are based on the criterion of the size of respondent's business, a penalty ~n an
upper range of magnitude would be appropria·te.
As t o respondent ' s history of previous violations the
stipulations indicate that respondent has not previously been
cited for a violation of section 77.~001 within the last 24
months . Consequently, no portiop of the penalty should be
based on the criterion of respondent's history of previous
violations .
The stipulations also state that assessment of the penalty of $168 proposed by the Secretary in his proposal for
assessment of civil penalty would not affec t respondent's
ability to continue in business.
It has been stipulated that respondent abated the violation in a timely manner. Consequently, no portion of the
penalty should be assessed because of respondent's failure
to show a good faith effort to achieve rapid compliance.
The fifth criterion of negligence must be evaluated in
light of all the evidence which I have summarized in my findings. The Commission held in Penn Allegh Coal Co . , 4 FMSHRC

1224 (1982), that a judge is not bound by the inspectors' or
the witnesses' opinions as to negligence, as it is his responsibility to draw legal conclusions from the evidence considered
as a whole.
I believe that in view of the abundant amount of
evidence which the respondent has presented in this case that
we have in this instance a true difference of opinion on behalf
of management and its employees, as opposed to the inspectors,
and I believe that that evidence supports a finding that respondent was not negligent in the occurrence of the violation.
The final criterion to be considered is gravity. The Commission has discussed the fact that an inspector may note on a
citation issued under section 104(a} that a violation , in the
inspector ' s opinion, is significant and substantial u as that
term is used in section 104(d) (1 ) of the Act o specifically ;
that the violation is of such a nature that i t could significantly and substantially contribute to the cause and effect
of a mine safety and health hazard" The Commission defined
the term "significant and substantial !v in Nationa l Gypsum Co o;
3 FMSHRC 822 (1981 ) by stating at page 825:
We hold that a violation is of such a nature as
could significantly and substantially contribute
to the cause and effect of a mine safety or h ea lth
hazard if based upon 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.
Thereafter, the Commission in Consolidation Coal Co.,
6 FMSHRC 189 (1984), and Mathies Coal Co. p 6 FMSHRC 1 (1984) ,
applied its National Gypsum definition of significant and substantial in four steps. Step No . l is whether a violation
occurred, and I have already found that a violation occurred.
Step No. 2 is whether the violation contributed a measure of
danger to a discrete safety hazard. The evidence in this case
is so equivocal on whether there was a specific hazard that I
am of the opinion that step No. 2· has not been proven when one
considers the entire record with respect to it. - It is possible that a rock might have fallen and might have injured someone. But it is more likely than not that this coal would have
been cleaned up and no rock would have fa llen and no one would
have been injured.
The third step is whether there is a reasonable likelihood that the hazard contributed to would result in injury.
That consideration also has to be evaluated in light of all
the facts, and I am not convinced that the record supports a
finding that the hazard, if any, would have contributed to or
resulted in an injury.

377

The fourth step in evaluation is whether there is a reasonable likelihood that the injury in question would be of a
reasonably serious nature .
The inspectbr did present some
testimony to the effect that rocks have been known to fa ll
down and hit tires on end loaders and bounce through the windshield and injure people. But first of all, you have to have
a reasonable likelihood that that is qoing to happen, and in
light of respondent's evidence, I think I must recognize the
fact that there is an honest difference of opinion here , and
the entire record does not convince me that there was a rea sonable likelihood that an injury would occur of a reasonably
serious nature in this instance . ConsequP ~tl y, I f ind that
the inspector's citation should be r'\odifi... 1 to eliminate the
designation of "significant and substantial ".
S i nce I have found that a violation occurred 7 and s ince
the Act requires that a penalty be assessed for any v iolat i o n
(Tazco , Inc. , 3 FMSHRC 1895 (1981)) , reaardless o f its gr a vi ty ,
I think tha t a penalty in this instance 0f $20 woul d be appropriate in view of the fact that the violation was nons e rious
and that there was no negligence associated with its occurrence .
WHEREFORE , it is ordered :
(A)
Citation No . 2196562 i : sued January 3 1 , 1 98 4 , is
modified to delete therefrom the designation o f " signi f icant
and substantial".
(B} Lost Mountain Mining , Inc., within 30 days from the
date of this decision, shall pay a civil penalty of $20 . 00 for
the violation of 30 C.F.R. § 77 . 1001 alleged in Citation No .
2196562 dated January 31 , 1984.

~e.
~ ~
Steffe~

Richard C .
Administrative Law Judge

Distribution :
Mary Sue Ray, Esq. , Office of the Soli~itor, U. S. Department
of Labor, Room 280, u. S. Courthouse, 801 Broadway , Nashville,
TN 37203 (Certified Mail)
Lloyd R. Edens, Esq., P. 0. Box 1562, Middlesboro, KY
(Certified Mail)

yh

3'/8

40965

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

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

v.

22041

f1AR7 1985

CIVIL PENALTY PROCEEDING
Docket No. LAKE 85-26- M
A. C. No. 47-00220 - 05503
Oshkosh Mine (Yard 396)

VULCAN MATERIALS COMPANY ,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Steffey

Counsel for the Secretary of Labor filed on February ll Q
198 5 , a motion for approval of settlement .
Under the parties :
seJctlement agreement , respondent: ~ATould pay a reduced penalty
of $750 instead of the penalty of $1,000 proposed by MSHA for
the single violation of 30 C.F .R. § 56.9-3 alleged in this
proceeding.
Section llO(i) of the Federal Mine Safety and Health Act
of 1977 lists six criteria which are required to be used in
determining civil penalties. The motion for approval of
settlement and other pleadings in the official file provide
information regarding the six criteria . The proposed assessment sheet indicates that over 27,000 annual hours were worked
at respondent ' s mine involved in this proceeding and that the
controlling company worked annual hours of approximately
5,100,000. Those working hours support a finding that respondent operates a lar ge business and that any penalty determined in this proceeding should be in an upper range of magnitude to the extent that i t is based on the criterion of the
size of respondent ' s business.
The motion for approval of settlement states that payment
of the penalty agreed upon by the parties will not cause respondent to d i scontinue in business. Therefore, it i s not
necessary to reduce . the penalty by any amount under the criterion that payment of penalties would cause respondent to
discontinue in business.
The proposed assessment · sheet shows that respondent has
been assessed with only one alleged violation during six inspection days for the 24 - month period preceding the wr iting
of the order involved in this proceeding .
Use of those

statistics to make the calcu~ation described in 30 C.F.R.
§ 100 . 3(c} of MSHA's assessment formula results in a conclusion that no portion of the penalty should be assessed under
the criterion of respondent ' s history of previous violations.
The penalty of $1,000 proposed by MSHA in this proceeding
is based upon a waiver of the use of the routine assessment
formula described in section 100.3 and the determination of a
penalty pursuant to narrative findings , as described in section 100.5. The narrative findings do not give respondent any
reduction in the penalty under the criterion of whether re spondent demonstrated a good-faith effort to achieve compliance after the combined order and citation were issued . A
subsequent action sheet in the official file , however , indicates that the order was terminated on August 2 , 1984, after
new brake shoes and other equipment had been installed. The
inspectoris termination states that the truck nwas in good,
safe operating condition" .
Inasmuch as the citation was al leged in an order, the inspector did not specify a time for
abatement .
MSHA does no·t provide an operator wi·th ·the 30percent reduction for good- faith abatement, pursuant to section 100.3(f), unless a citatien containing an inspector's
time for abatement is involved .
In view of the extensive rebuilding of the truck 1 S brakes in this instance v i t would be
appropriate to allow for some reduction of the penalty under
the criterion of good- faith abatement .
The foregoing conclusion is based in part on the statement in respondent's answer to the proposal for assessment of
civil penalty to the effect that the truck being used when
the order was issued was a soare truck which was utilized
only when two regular trucks- normally used were out of service for maintenance or repair . The fact that the brakes on
the spare truck were completely overhauled indicates that respondent was concerned about having the spare truck restored
to the "good, safe operating condition" referred to by the
inspector's termination sheet.
The remaining two criteria of negligence and gravity
require a brief discussion of the situation which caused the
issuance of the order and citation. An off-road production
truck was used to haul limestone from the quarry to the
crusher.
It traversed some steep inclines in doing so . When
the driver of the truck applied the truck's brakes, they were
inadequate to stop the truck. The inspector considered respondent to be very negligent for allowing the truck to be
operated with defective brakes and he believed that the truck
constituted an imminent danger in the circumstances.
It is not possible to determine how much of the proposed
$1 , 000 penalty was specifically allocated by MSHA under the
criterion of negligence. The motion for approval of settlement

·380

indicates that the truck ' s brakes were inspected by a foreman
prior to the time that the truck was placed in service and
found to be adequate. Respondent ' s answer to the proposal
for assessment of penalty states that it is the company ' s
policy to require the drivers of all mobile equipment to make
safety checks of the equipment prior to operating it and to
report any defects to the foreman.
Respondent states that
the driver of the truck in question failed to report any defective brakes to his foreman on the day the order was issued .
Respondent's answer also alleges that the truck driver
was displeased by the fact that he was required to operate
the spare truck which had a mechanical shift as opposed to
the automatic transmission with which the trucks in norma l
usage are equipped . It is further alleged t hat the driver
of the truck may have deliberately driven through deep water
in the q uarry to reduce the effectiveness of the truck's
brakes before calling them to the attention of the inspector .
It is not possible to determine from the motion fo r a pproval of settlement exactly how much weight the parties gave
to the above allegations in agreeing to reduce the proposed
penalty , but the motion indicates that the Secretary 0 s counse l
discussed the allegations with the inspector. Apparent l y~
there was suf ficient merit to some o f respondent ' s conte nt i o ns
to cause the Secretary ' s counsel to conclude that the degree
of respondent ' s negligence was not as great as it was previously considered to be by MSHA when a penalty of $1,000 was
proposed.
There is little doubt but that the violation was serious
since it appears that the brakes would not bring the truck to
a stop at a time when the truck was empty.
The discussion above indicates that the parties agreed
to reduce the penalty to $750, primarily under the criterion
of negligence.
If a hearing had been held, it is likely that
a credibility determination would have had to be made as to
the degree of the operator's negligence. If it had been proven
at the hearing that the driver failed to re?ort the truck's
inadequate brakes to the foreman prior to complaining about
them to the inspector, there would have been considerable
support for a finding that respondent's negligence was not so
great as to warrant a penalty of $1,000 . In such circumstances, I find that the parties have given a reasonable basis
for agreeing to a reduction of the proposed penalty from $1,000
to $750 .
WHEREFORE, i t is ordered:

·381

(A}
The motion for approval of settlement is granted and
the parties' settlement agreement is approved.
(B) Within 30 days from the date of this decision, Vulcan
Materials Company shall pay a civil penalty of $750.00 for the
violation of section 56.9-3 alleged in Order and Citation No .
2088669 dated July 18, 1984.

~(!.~ ~

Steffe~~

Richard c.
Administrative La~r Judge

Distribution:
Miguel J. Carmona, Esq. , Office of the Solicitor , U. S. Depar t~
ment of Labor, 230 South Dearborn Street , 8th Floor, Chicago r
IL 60604 (Certified Mail)
D. J. Leemon , President 0 Midwest Division , Vulcan Materials
Company, P. 0 . Box 6 9 500 West Plainfield Road ! Countryside ,
IL 60525 (Certified Mail)

yh

FEDERAL MINE SAFETY AND HEALTH REV IEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PI KE
FALLS CHURCH, VIRGINIA

22041

MAR 7 1985
EMILIANO ROSA CRUZ,
Complainant

DISCRIMINATION PROCEEDING
Docket No. SE 83-·62-DM

v ~

PUERTO RICAN CEMENT COMPANY ,
INC. ,
Respondent

MSHA Case No. IvlD-8 3-44

ORDER
Before:

Judge Broderick

On July 19, 1984 , I issued a decision on the mer its in
the above case in which I ordered that Respondent reinstate
Complainant to the position from which he was discharged on
April 25, 1983, or to a comparable position at the same
rate of pay .
I also ordered that Respondent pay back wages
to Complainant from April 2 5, 1983 to the date of his reinstatement, together with interest thereon, in accordance
with the formula set out in the Arkansas - Carbona case .
I
also ordered Respondent to pay reasonable attorney's fees
and costs of litigation inc urred by Complainant.
Subsequent to the decision , Complainant submitted without objection a copy of the Collective Bargaining Agreement
between Respondent and the Labor Union representing Complainant.
Complainant also submitted a ' statement of back pay and
interest and a statement of attorney ' s fees and expenses.
Respondent submitted a reply to the statement of back pay and
i nterest , and a statement that it did not object to the
amount c l aimed as attorney's fees and l egal expenses.
On motion of Respondent, I ordered Complainant to furnish information permitting Respondent to request a statement
of interim earning·s from the Social Secur ity Administration.
I also ordered Complainant to furnish Respondent with a
certified copy of his income t ax return for 1983 and copies
of all job applications made by Complainant since his
discharge.
Complainant has responded to these orders.

·3 83

I.

BACK PAY AND INTEREST
A.

COMPUTATION

On August 17 , 1984, Complainant submitted
a statement of back pay and interest pursuant
to my order .
He claimed a total of $18,059.97,
of which $16,999.28 represented gross back pay
and $1 ,060.69 represented interest to
September 12, 1984. Respondent filed a reply
to the statement on September 12, 1984.
According to Respondent , Complainant's calculations were in error in that he claimed wage
differential for holiday pay, and the differential is paid only when the employeE: actually
works. According to Respondent, Complainant's
gross back wage entitlement (assuming lia~ility)
would be $16,539.70. Respondent also objected
to the interest rate Complainant used from
July 15, 1984 to September 30F 1984 . Complainant did not respond to these allegations of
Respondent.
I accept Respondent ' s computation
of back pay entitlement, and adopt the worksheet
submitted as showing Complainant 1 s entitlement
to back pay through September 12 , 1984 , in the
gross amount of $16,539.70 .
In addition, he is
entitled to interest at the rate of 16 percent
from January 1, 1983 to Jun.e 30, 1983, at the
rate of 11 percent from ~uly 1, 1983 to
December 31, 1983, at the rate of 11 percent
from January 1, 1984 to June 30, 1984 , and at
the rate of 11 percent (not 13 percent) from
July 1, 1984 to September 12 , 1984, in accordance with the Arkansas - Carbona, formula.
B.

INTERIM EARNINGS

Complainant has su'p plied ·. a · copy of his
income tax return and has authorized the Social
Security Administration to give Respondent a
copy of his earning reco.rd. Complainant testi fied in this case on March 30, 1984. The only
questions concerning interim earnings or seeking other employment were asked by me . The
statement of back wages fails to reflect the
earnings testified to. Counsel for Complainant
agrees that Complainant~s back pay entitlement
should be reduced by the interim earnings he

·384

received in January and February 1984. Respondent has sought to depose Complainant on this
issue but I denied the motion as being untimely.
There is no evidence that Complainant has had
interim earings other than those testified to .
C.

CHRONIC ABSENTEEISM

My decision of July 1 9, 1984, found that
Complainant was off work a considerable number
of days and that an inordinate number of his
absences occurred on the day before and after
weekends and holidaysc Respondent argues
that a record of chronic absenteeism justifies
a reduction in the back pay award . The
Commission has stated that the purpose of the
relief in a section lOS(c) case is to " restore
the employee to the situation he wo~ld have
occupied but for the discrimination .~~
Secretary/Dunmire and Estle v. Northern coal
Company, 4 FMSHRC 126 , 142 (1982) . Secretary/
Bailey v . Arkansas-Carbona ·company, 5 FMSHRC
2042 (1983) . Therefore , I conclude that the
back pay may properly be reduced because of
Complainant ~s absenteeism.
He was absen t
78 days in 1 981 , 4 9 days in 1 982 and 4 days
in 1983.
(He worked to April 25). Thus, he
averaged approximately 56 days off per year
during the 2 - 1/3 years prior to his discharge .
(This seems a more reasonable period then the
3 - year period suggested by Respondent) • The
contract allowed 18 days per year sick leave.
Therefore, I will reduce the award by 38 days
per year from the date of Complainant ' s date
to the date of my decision. Sin.c e I have
ordered reinstatement, Respondent's liability
for back pay thereafter will not be reduced
based on his absentee record. , _ ~o simplify
the computation, a reduction of 9.5 days pay
should be taken from the amount due for each
quarter as back pay .
ATTORNEYS FEES AND COSTS
Complainant requests reimbursement for attorneys fees i n
the amount of $2,340.00 and expenses of litigation in the
amount of $113.16. The fee request is based upon 39 hours at
the rate of $60 per hour.
Respondent does not object to the
claim for attorneys fees and legal expenses and it will be
approved .

Therefore, within 30 days of the date of this order,
Respondent is ORDERED
1. To pay Complainant back wages in the
following gross amounts:
(a}

2nd Quarter 1983
3rd Quarter 1983
4th Quarter 1983
Christmas· bonus 1983

$2 , 036.35
2,889.86
2,912 . 31
363.76

(b)

1st Quarter 1984
2nd Quarter 1984
3rd Quarter 1984

$2 , 294.32
3,203.91
2u839.19

From the above
deducted:

amounts ~

the following should be

(a)
Interim earnings from January l v
1984 to February 18 r 1984 , at the rate
of $134 per week (3.35 per hour) .
(b)
An amount equal to 9.5 days per
quarter from April 2.5 ~ 1 983 to J·uly l9 r,
1984 , on account of. Complainant's
absenteeism .
To the resulting amount, Respondent IS ORDERED
TO pay interest at the rate of 16 percent per
year (.0004444 per day) from January 1, 1983 to
June 30 , 1983, at the rate of 11 percent per
year (. 0003055 per day) from ,July 1, 1983 to
· september 30, 1984, in accordance with the
formula set · out in Arka·nsas - Cq.rbona.
2. Respond~nt is FURTHER ORDERED to pay to
complainant's attorney the amount of $2,453.16 as
attorney ' s fees and expens~s o,f - _litigation .

Distribution:

J

~--& kB?Ja~/ttrz &-4_
James A. Broderick
Administrative Law Judge

Julio Alvarado Ginorio, Esq., P .O. Box 1771, Ponce, P . R.
00733 (Certified Mail)
Daniel R. Dominguez, Esq . , Dominguez & Tvtti, P.O. Box 1732,
Hato Rey , P . R. 00919 (Certified Mai l)
/fb

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AD.H INISTRATION (HSHA) ,
. Petitioner

22041

CIVIL PENALTY PROCEEDINGS
Docket No . WEVA 84-12 4
A.C . No. 46 -06473 ~03523

v.
Docket No. WEVA 84-222
A.C. No. 46-06473 - 03528

BARRETT FUEL CORPORATION ,
Respondent
0
0

Docket No . WEVA 84-333
A.C. No . 4 6 - 06 4 73-03 530
Docket No . \\lEVA 84-·370
A.C. No. 46-06473-0353 1
Cl inton No . 3A Mine
Docket No . WEVl-'. 84 -· 30 ~
A.C. No. 46 -06450-03 52 3
Docket No. WEVA 84-310
A . C. No. 46-06450 - 03522
Docket No. \-VEVA 84-332
A.C. No. 46 - 06450-03524
Docket No. WEVA 84- 365
A. C. No. 46-06450-03525

:

Docket No. WEVA 84-369
A:G· No. 46 -0 6450 - 03526
Docket No. WEVA 84 - 398
A.C. No. 46 - 06450 - 03527
Docket No • .WEVA 84-399
A.C. No. 46-06450-03528
Docket No. WEVA 85-16
A.C. No. 46-06450-03529
Docket No. WEVA 85- 79
A.C. No. 46-06450 - 03532
Clinton No. 3 Mine

387

DECISION APPROVING SETTLEME!lT
Before :

Judge Kennedy

This matter is before me on the parties' motion to
approve settlement of the captioned matters at 50% of the
amount initially assessed, $28,78 3 for the 80 violations
charged.
Based on an independent evaluation and de novo review
of the circumstances, including the operator'S impaired
financial condition I find the settlement proposed is in
accord with the purposes and policy of the Act.
Accordingly, it is ORDEP£D that the motion be 1 and
hereby is, GRANTED. It is further ordered that the operator
and/or its corporate principals pay the a mount of the
settlement agreed upon, $14,391.50, in monthly installments
of $1,000 commencing April 1 1 1 985 until the f ull amount o f
the penalties assessed are paid. It is FURTHER ORDEP~D
that approval of this settlement is without prejudice to
the Secretary's right to proceed against corporat e principals ,
production operators or others i~he event of a default in
payment by Barrett Fue l Corpora;r;v-·

'i_
Dis tribution:
Craig Hukill , Esq . , Office of the Solicitor, U.S . Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified
Hail)
John F. Rist III , Esq., Rist and MacAulay, 1940 Harper Road,
Suite 290, Beckley, WV 25801
(Certified Mail)
William D. Stover, Esq . , Barrett Fuel Corporation, 41 Eagles
Road, Beckley, WV 2580 1
(Certified Mail)

/ejp

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

MAe 1. 2 !sss

333 W. COlFAX AVENUE, SUITE 400
DENVER, COlORADO 80204

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 84 - 32-M
A . C. No . 26-00093-05506

v.

Pabco Gypsum- Apex Quarry

PACIFIC COAST BUILDING
PRODUCTS , INC .,
Respondent
DECISION
Appearance s:

Marshall P. Salzman, Esq., Office of the Solicitor ;
U.S. Department of Labor, San Francisco, California r
for Petitioner:
E. David Stroebling ~ Esq. , Las Vegas r Nevada !
for Respondent.

Before:

Judge Morris

This is a civil penalty proceeding initiated by the petitioner
against respondent in accordance with Section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c . § 820(a) .
Citation 2088401 alleges respondent violated 30 C . F.R. § 55 . 12-17
relating to power circuits. The Secretary originally assessed a
proposed penalty of $63.00 for this violation.
At the hearing the parties stipulated that a violation of the
standard occurred. Further , it was agreed that the last two sentences
of the citation should be vacated .
The parties further agreed that respondent is a moderate - sized
company with a low history of violations.
In addition , the cita·tion
was abated in good faith.
It was further agreed that the imposition of a penalty would
not affect the ability of the company to remain in business.
Further ,
it was agreed there was no negligence on the part of the operator.
Considering all of the statutory criteria, I deem that a civil
penalty of $40.00 is appropriate for this violation .

389

Accordingly, I enter the following:
ORDER
1.

Citation 2088401 and a penalty of $40.00 are affirmed.

2. Respondent is ordered to pay the sum of $40 .0 0 within
40 days of the date of this order .

Q_~
J . (/..1orris

istrative Law J udge

Distribution:
Marshall P. Salzman , Esq ., Office of the Solicitor , U.S . Department
of Labor , 4 50 Golden Gate Avenue , P . O. Box 36017 ,, San Francisco ,.
California 94102
(Certified Mail)

E. David Stroebling, Esq., 5 00 Sou th Fourth Street, Las Ve gas,
Nevada 89101
(Certified Mail}

/ot

390

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMI SSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE '
FALLS CHURCH, VIRGIN IA 22041

~ -: ·. . .= •
•

••

DISCRIMINATION PROCEEDING

ROY D. LUCAS,
Complainant

v.

Docket No. WEVA 83-48-D

EASTERN ASSOCIATED COAL
CORPORATION;
Respondent

MSHA Case No. HOPE CD 82- 47

FINAL ORDER
Appearances :

Joseph A. Colosi, Esq., Camper & Seay ~
Welch , West Virginia, for Complainant ;
R. Henry Moore , Esq., Rose~ Schmidt ,
Dixon & Hasley , Pittsburgh, Pennsylvania ,
and Sa ll y S . Rock , Esq., Eastern As s ociated
Coal Corp. , Pittsburgh f Pennsylvania ,
f or Re s pondent .

Before :

Judge Kennedy

This matter is before me on complainant ' s challenge to
the tentative decision of August 9, 1984, denying h is claim
and dismissing his complaint.
Based on a de novo evaluation
and revie'" of the record, I find complainant failed to
sustain his ultimate burden of showing that protected
activity played a substantial or motivating part in the
decision to discharge Roy Lucas from his job as a service
f oreman on August 13, 1 982.
I further find the operator
carried its burden of showing that even if protected activity
was arguably involved in the decision to discharge Mr. Lucas
he would in any event have been discharged for his unprotected
activities alone .
I also find that complainant failed to show
by a preponderance of the reliab le , probative and substantial
evidence that (1) he was wrongly accuse d of perpetrating the
serious safe ty violation for which he ·was discharged, or
(2) that the unprotected activities for which he was discharged
were a mere pretext .
NLRB v . Transportation Manage ment Corp.,
462 U.S . 392 (1983); Bioch v. FMSHRC, 719 F .2d 194 (6th Cir .
1983); Donovan v. Staf f ord Con s t. Co. , 732 F.2d 954 (D.C .
Cir . 1984); Dickey v . FMSHRC, 3 MSHC 1233 (3d Cir. 1984);
Hecla- Day Mines CorporatiO~ 3 MSHC 1527 (1984); Haro v.
Magma Copper Co. , 2 !11SHC 1897 (1982); Robinette v:-urlited
Castle Coal Co ., 2 MSHC 1213 {1981); Pasula v . Consolidation
Coal Co ., 2 MSHC 1001 (1981), rev'd on other- grounds, sub.
mon . , Consolidation Coal Co . v. Marshall, 663 F.2d 1211 (3d
Cir . 198 1 ).

- 3 ~1

'

'"••/

w ..,)

I

Complainant misconceived his burden of proof.
This is
not surprising as the shifting burdens of production and
persuasion that govern discrimination cases have lon g been
confusing to the Courts, the Commission and counsel.
As complainant asserts he carried his burden of s howing ,
at least arguably, that protected activity may have played
a part in the decision to discharge. But this satisfied
only the burden of establishing a prima facie motive and not ,
as he suggests, his ultimate burden of persuasion as to the
true motive. As I read the precedents it would be clear
error to substitute a prima facie showing of unlawful intent
for complainant~s ultimate burden of persuasion as to the
existence of a retaliatory motive for an adverse action.
In attempting to carry his ultimate burden complainant
encountered evidence which showed (l) that it was doubtfu l
that protected activity played any part in the decision to
discharge, and (2) that serious unprotected activity
intervened between the claimed~protected activity and the
decision to discharge .
Indeed, the operator ' s affirmative
defense showed that it was the safety violation plus
complainant vs disingenuous attempt to alibi as well as his
unsatisfactory work record that were uppermost in Mr. Meadow ' s
mind at the time he made the decision to discharge Lucas .
Walter A. Schulte v. Lizza Industries, 3 MSHC 1176, 1182
(1984).
The question then is what \vas the operator's burden.
Whether the operator's burden is one merely of production
or production and persuasion has for some time been a matter
of dispute among the circuits and before the Supreme Court.
As I read Transportation Management, ~obinette, Pasula and
their progeny, the operator's first option is to show that
it was at least as probable as not that no protected activity
occurred or that protected activity played "no part'' or "no
substantial or motivating part " in tbe . decision to take
adverse action.
If the operator succeeds in placing the
evidence in equipose or in negating by a preponderance of
the credible evidence the prima facie case he will prevai l . !/
If, on the other hand, the operator is not content to
rest on his rebuttal case he may proceed to attempt to show

!/

I found, and I hereby confirm, that the operator succeeded
in sho-v1ing that protected activity played "no substantial part"
in the decision to discharge. Bench Decision, Finding 6.

that, at worst , his motives were mixed and that he would in
any event have taken the adverse action for complainant's
unprotected activity alone. This, the so-called affirmative
defense route, requires under the Court's and the Commission's
precedents assumption of a burden of both production and
persuasion.

y

The operator suggests the .way may still be open to apply
the Texas De artment of Communit Affairs v. Burdine, 450 U.S.
248 (1981 , test , as the court did 1n the first Bo1ch case,
704 F.2d 275. 3/ Under this test first devised for Title VII
cases the operator has only a burden of production sufficient
to raise a question of fact as to the true motive for the
adverse action" Complainant then has the burden of showing
that "but fern the protected activity he would no'c have been
discharged . Williams v . Boor-stein , 663 F . 2d 107 ~ 1 1 7 (D . C.
Cir. 1980)o Th1s is not , however , the prevailing view unde r
the HLRB Act or the Mine Act .
Under the prevailing view ? i·t is nece ssary tha'c the
operator show that assuming without conceding he entertained
an unlawful motive he nevertheless had a lawful or legitimate
motive and this motive was standing alone sufficient cause
for the adverse action . This showing he must make by a
preponderance of the evidence .
If the operator does not make
a persuasive showing as to this or if the complainant shows
the dual motive was a mere pretext the employer or operator
does not carry his intermediate burden of persuasion and
complainant prevails. Thus, the burden in the case of the
dual or mixed motive defense is on the operator to disentable
his motives and make a persuasive showing, i.e. a showing by
a preponderance of the evidence that despite his illegal
motive the adverse action would have been taken for the
permissible motive alone"
Once the operator meets his burden of production and at
least arguably his burden of persuasion , the complainant in
2/ This accords with the NLRB's Wright Line test as approved
by the Supreme Court in Transportation Management.
3/ It is important to recognize that in Transportation
Management the Supreme Court did not establish a rule of its
O\m for the allocation of the burden of proof in NLRB cases .
It merely accorded "deference" to the rule established by
the Board. It is likely that it would accord the same deference to the Commission's rule which differs somewhat
from that of the NLRB.
In Burdine , on the other hand, the
Court established a rule to be followed by the Article III
courts in deciding Title VII cases.

-393

order to ensure that he carries his ultimate burden of
persuasion may also " attempt to refute [the] affirmative
defense by shmving that he did not engage in the unprotected
activities complained of , that the unprotected activities
played no part in the operator ' s motivation, or that the
adverse action would not have been taken in any event for
such unprotected activities alone." Robinette, supra, n. 20.
This reformulation of the ultimate burden of production and
persuasion adopts " both the ' in any way' and ' but for '
tests" and underscores the fact that the ultimate burden
always rests with complainant . Pasula, supra at 1010. The
difference between the Court's tacit rejection of the "but
for" test in NLRB cases and the Commission's melding of the
two tests for the ~1ine Act is, as this c ase demonstrates ; of
little practical consequence as under either test the
ultimate burden of persuasion rests with complainant . !/
It was in this sense that I found that the evidence did
not refute and therefore did not support a finding that "but
for" the claimed protected activity f.\1r. Lucas would not have
been discharged but to the contrary that the preponderant
evidence showed Mr. Lucas would in any event has been discharged
for his unprotected activities alone.
Bench Decision Findings
9 ' 10 .
II
With respect to the claim of disparate treatment, I
note that , as I found, the two contract miners present when
the violation occurred shared responsibility for the hazard
created. ~ As the Commission has noted , however, neither
4/ While Pasula and Robinette outline the order and alloca tion of proof as a three-stage process, i t is clear that the
actual presentation of evidence qoes not contemplate a trifurcated trial, but simply sets forth the proper method of
analysis after the relevant evidence is before the trial judge.
Evidence relating not only to th~ comp~ainant's prima facie
case , but also the operator's articulated nondiscr~inatory
reason and the complainant ' s demonstration of pretext, is , as
i t was in this case, frequently presented during the course
of the complainant's case in chief .
Similarly, the evidence
presented by the operator in its case in chief will almost
always, as it did in this case~ contain evi~ence directed at
refuting the complainant's assertions of pretext, as well as
evidence to support the claim of unprotected activities and
again as in this case , evidence to attack the prima fac ie case.

5/ Evidence of disparate treatment may be used either to
support a prima facie case or to refute a dual motive defense.
Walter A. Schulte, supra .

·394

it nor its trial judges 11 Sit as a super grievance or arbitration
board meting out industry equity. Once a proffered business
justification is not plainly incredible or implausible , a
finding of pretext is inappropriate." Secretary ex rel Chacon
v. Phelps Dodge, 2 MSHC 1505 , 1511 91981), rev ' d on other
grounds , sub. nom. Donovan v. Phelps Dodge, 709 F.2d 86
(P.C. Cir. 1983); Haro v . Magma Copper, 2 MSHC 1897, 1898 - 99
(1982) .
Further, as Mr. Lucas acknowledged, it is permissible
for management to hold supervisory employees to a higher
standard of responsibility and accountability than hourly
employees. Compare , Dickey v . United States Steel , 2 MSHC
2168 , aff'd ., sub . nom. Dickey v. FMSHRC , 3 MSHC 1233 (198 4 ).
I took into account the claim of disparate treatment in
weighing the bona fides of the o perator ' s claim that Lucas
wou l d have been discharg ed whether or not his protected
activity play ed a part in the decision . Upon further analysis
I am persuaded that ~tt . Meadows , the mine superintendent who
made the fina l decision , did so b ecause h e h ad a good f aith ,
reasonable belief that Lucas was the foreman responsible for
the nipping cable hazard, that it was a life threatening
hazard , and that , rightly or wrongly , Lucas in his panic
over the matter , tried to fabricate an alib i .
I am also
persuaded b y the contemporaneous , corroborating physical
circumstance s t h a t it wou l d h ave b een impossible to o perate
the dust buggy without using the nipping cable .
r.1 r. Meadows
chose to believe , and I submit on the basis of what he knew,
quite rightly, that Mr . Lucas was on the track entry after
2:00a . m.; that he was, in fact , the last miner to leave the
track entry that morning; and that in doing so he so
concentrated on helping the two contract miners get the
derailed dust buggy back on the tracks he forgot to remove
the unfused nipping cable from the trolley wire .
III
There is no gainsaying the fact that Mr. Lucas'
immediate supervisor , Harry Stover, the third shift mine
foreman, was a harsh taskmaster who rode Lucas unmercifully
and unfairly . Despite the fact that he was responsible
for hiring Lucas, Stover immediately took a strong personal
and job-related dislike to Lucas for the latter ' s more
relaxed style of workforce management.
Stover was a hard driver who looked upon Lucas as a
soft touch for his work crews-- inclined to give them too
many work breaks and disinclined to drive them to the
point of exhaustion over hard physical tasks. Lucas was
truly the ham in the sand~.vich and in a no-win position

between Stover's unceasing demands for productivity and
the contract miners ' pleas for some consideration in the
performance of the hard physical labor demanded.
As the record shows, between the time Lucas was hired
to work in February 1982 until he was fired in August the
two men engaged in several verbal altercations over how
various tasks should be performed and how long it should
take to accomplish them. Only one of these, the crib
block incident on April 20, 1982, involved arguably protected
activity that resulted in an unsatisfac~ory work warning.
However, as I have found, and now confirm, the safety
related activity occurred before the cribs arrived and did
not, at least in my judgmentr play a part in Stover 1 s
decision to issue the warning for failure to set enough
cribs after they arrived on the section and before the
shift ended .
The other incidents that resulted in the issuance o f
unsatisfactory work warnings occurred on March 1 6 and
July 16, 1982. 6/ These incidents did not involve any
safety related activity. Nevertheless, they did show that
Stover had a strong anti-Lucas animus .
The incidents of April 8 , May 8 ? May 21 and June 3
arguably involved safety related activity but did not
result in any overt adverse actions by Mr. Stover. Mr. Lucas
admitted he made no protest to Stover or anyone else in
management with respect to the unsafe mining practices he
allegedly participated in on May 8 and May 21 , 1982. The
April 8 incident involving Stover's refusal to furnish
communications or transportation to Lucas and his crew may
have stirred Stover's personal resentment toward Lucas but
did not demonstrate a pervasive or even transitory antisafety animus. The claim that Stover· harbored resentment
over the April 8 incident until he could find an excuse, as
he allegedly did so April 20, to issue an unsatisfactory
work warning is, I find, speculative and unsupported by
a preponderance of the credible ~vidence.
Taken as a whole complainant's evidence shows a pattern
of conduct on the part of Stover that boded ill for Lucas'
job security, but, as I find, this did not stem from
Lucas' claimed concerns for safety.
These concerns, while

6/

The March 16 incident involved a verbal warning for
letting the work crew quit early.
The July 16 incident
involved a written warning for failure to accomplish the
timely installation of a car spotter.

396

real, were, in my opinion, exaggerated to meet the needs
of advocacy and the exigencies of a hard case. Many
activities in an underground coal mine involve the weighing
of risks, the exercise of judgment, and sometimes heated
disagreements over what risks are or are not acceptable.
Often the law or the collective bargaining agreement will,
when viewed in hindsight , provide a bright line between
acceptable and unacceptable risks. Just as often, however,
in the heat of the moment and with the pressure to act the
line is blurred if not entirely illusory.
Honest u even if heated , disagreements between two
foremen over what risks are or are not acceptable is not
probative of an anti-safety animus on the part of management .
Nor is every dispute over productivity versus safety , without
more; evidence that a discharge for unprotected activity was
ineradicably tainted with an anti-safety animus .
When supervisory personnel lose respect and confidence
in one another someone has to go. Unfortunately , as in other
spheres of life, it is usually the subordinate who isr
rightly or wrongly, made the scapegoat.
I find it a matter
of regret that Lucas did not have self-confidence enough to
break the iron vice by going over Stover ~ s head . Only two
months after he was hired he knew he had two strikes against
him and that unless he succeeded in calling Stover 1 s hand
before Meadows his job security was in jeopardy .
Lucas
passed up his chances on Hay 8, May 21 and June 3 to make,
if he could, a clear and convincing record of Stover's and
management ' s claimed anti- safety animus. The breaker post
incident of June 3 demonstrated, of course, that Lucas could
be wrong and Stover right over a disputed safety issue with
no attempt by Stover to retaliate. Further, Lucas \'las just
plain wrong in attributing the August 10 rail runner incident
to Stover. The contemporaneous record showed that Stover
was on vacation at that time and at the time of Lucas'
discharge on August 13, 1982.
Consequently, even if I impute to top management all of
Stover's anti-Lucas animus I cannot find that this was the
functional equivalent of an anti-safety animus. Rightly
or wrongly, management including the mine superintendent,
Mr. }1eadows, was convinced that Lucas was a poor supervisor
and that his work history and Stover's evaluations, as
reflected in his progressive discipline file, made him a
candidate for early removal. Bra.dley v-. Belva, 2 HSHC
1729 , 1736 (1982).

3~7

This is the background against which one must weigh
Meadows ' statement th~ Lucas would not have been discharged
for the nipping cable violation alone . Meadows, I find , was
being perfectly candid . Few,· if any, miners are ever discharged for committing safety or health violations .
The
tradition among both management and labor, .;.w ith the acquiescence
of MSHA, is that by and large miners are not to be disciplined
for even serious safety violations .
I have no doubt that if Lucas had been a highly
regarded member of the management team, such as Stover,
he would not have been d ischarged for the nipping cable
violation. 7/
But , as Meadows testified, Lucas 1 record
was against-him Q and , ~10rst of all f Meadows believed he
tried to fabricate an alib~ that was so transparently f al se
that Meadows would have put his own reputation in jeopardy
if he had accepted it.
I believed Mr. £-ieadows when he
testified that Lucas was not discharged for the safety
violation alone , but for that plus his poor performance
record and r most importantly, forrhis attempt to dissemble
over t he nipping cable· incident.
On the record considered
as a whole therefore, I am compelled to conclude and affirm
that Lucas was discharged for unprotected activity alone and
that retaliation for protected activity played no substantial
part in the decision to effect the adverse action ~
Accordingly, it is ORDERED that the ten·tative decision
of August 9 , 1984, a copy of which is attached hereto and
incorporated herein, as supplemented by this Order be, and
hereby is , ADOPTED and CONFIRN.ED as the final disposition of
this matter.

Jo~eph · B~ Kennedy
Administrative Law

7/ I note in passing that among Stover's less endearing
qualities was his stubborn refusal to admit, in the face
of overwhelming evidence, that the use of unfused nipping
cables was a common practice in the Harris No . 1 Mine.

698

APPENDIX
TENTATIVE DECISION
I find a preponderance of the credible evidence shows:
1.
That Roy Lucas, James Taylor , and Jennings
Harrison were jointly and severally responsible for
leaving the nip cable energized between shifts on
August 12, 1982.
2.
That the condition created a serious
hazard of shock, burn, or electrocution to other
miners.
3.
That under Eastern's progressive
disciplinary policy, the creation of this hazard
was just cause for the discharge of one or all
of those responsible .
4.
That the discharge of Roy Lucas on
August 13, 1982, for the role he played in creating
the nip cable hazard did not violate any rights
guaranteed him under Section lOS(c) of the Mine
Safety Law.
5.
That the activity for which Roy Lucas
was discharged was not protected by the Mine Safety
Law.
6.
That none of Mr. Lucas ' claims of
protected activity motivated the decision to
terminate his employment.
7.
That Mr. Lucas would have been discharged
for the nip cable incident , despite any previous
protected activity because the nip cable incident
was, standing alone, just cause for his discharge.
8.
That the · motive for Mr. Lucas' discharge
was not tainted or rendered unlawful by any intent
to retaliate for any of his protected activity .
That the evidence does not support a
9.
finding that but for the claimed protected activity
Mr . Lucas would not have been discharged.

399

., 10.
That on the contrary, the preponderant
evidence shows that Mr. Lucas would, in any event ,
have been discharged for his failure to prevent the
hazard occasioned by the energized nipping cable .
11.
That while the unsatisfactory work warning
of April 20, 1982 , involved protected activity,
that activity did not play a part in management 's
decision to issue the warning .
I agree that in
issuing the warning management failed to take into
account the roof hazard that Mr . Lucas addressed
prior to the time the cribs arrived.
I also agree
that Mr. Lucas' reluctance to short circuit the
ventilation system was justified, even if the diversion
of the air, as it turned out, did not adversely affect
ventilation at the face.
I am not in a position to
second guess management's finding that Mr. Lucas fa iled
to accomplish enough work on the cribs.
I am inclined
to the view that management ' s decision was on balance
unjustified . Even so, this warning was not the deciding
factor in the decision of August 13, 1982, to terminate
I-ir. Lucas.
12 .
The single predominate motive for the
termination was the nip cable incident .
Thus \-lhile
there was management animus toward Mr . Lucas, it
stemmed, rightly or wrongly, from his perceived
performance deficiencies and not from safety complaints.
13 .
Accordingly , it is ordered that the
complaint be, and hereby is , dismissed.

·400

Distribution:
Joseph A. Colosi, Esq . , Camper & Seay, 17 McDowell Street,
Welch, WV 24801
(Certified Mail)
Sally S. Rock, Esq., Eastern Associated Coal Corp., One PPG
Place, Pittsburgh, PA 15222
(Certified Mail)
R. Henry l-1oore , Esq., Rose, Schmidt, Dixon & Hasley, 900 Oliver
Bldg., Pittsburgh, PA 15222
(Certified Mail)

-401

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

22041

DISCRIMINATION PROCEEDING

FRANCIS M. JANOSKI ,
Complainant

Docket No. LAKE 85-16-D
MSHA No . VINC CD 84 -1 4

v.

Rice No . l Strip Mine

RAND F COAL COMPANY,
Respondent

ORDER DISMISSING COMPLAINT
Before:

Judge Koutras
Statement of the Case

~·· On July 17, 1984 , the complainant Francis M. Janoski r
filed a discrimination complaint pursuant to section 105(c)
of· the Federal Mine Safety and Health Act of 1977, with MSHA ' s
St. Clairsville, Ohio, field office. Mr. Janoski's complaint
stated that he was employed by the respondent from September 22,
1983 to November 11, 1983 and from May 11 to May 25, 1984,
as a "seasonal truck driver, .. and that his employment with
the respondent was terminated on May 25, 1934, after a physical
examination he had taken on May 10, 1984, revealed that he
had pneumoconiosis (black lung) . His claim was that his
termination or discharge was discriminatory and a violation
of section l05(c) of the Act.

MSHA conducted an investigation of Mr . Janoski's complaint,
and by letter dated November 16, 1984, informed him that on
the basis of a review of the information gathered during the
investigation, MSHA concluded that a violation of section l05(c)
had not occurred. The letter ·also advised Mr. Janoski that
since it was possible that his. coinplaint 11 may be applicable to
section 428 of the Hine Act, .. it was being forwarded to the
Department of Labor, Employment Standards Administration, for
its consideration . Mr. Janoski was also informed of his right
to file a complaint with this Commission.
By letter dated November 26, 1984 , and received November 28,
1984 , Mr. Janoski filed a complaint with the Commission
pursuant to section lOS(c) (1) of the Act, and his complaint
states in pertinent part as follows:

·402

I was employed by R and F Coal 9ompany from
September 22 , 1983 , . to November 11 ., 1983 , . and
again from May 11 , 1984, to May 25, 1984·, as a
seasonal truck driver. On May 25, 1984, my
foreman, Brad Ankrom, informed me that Bill Gossett,
Superintendent, instructed him to tell me tpat
May 25, 1984, would be my last day of work, due to
a problem with my phys.;j..cal. Dr. Ajit S. Modi, was
employed by R and F Coal Company to conduct a
physical examination and concl~ded tthe chest
x-ray revealed chronic lung disease and pneumoco- ·
niosis.' The doctor suggested that I no longer work
in dusty areas. My physical examination was c8nducted on May 10 , 1984.
(copy of Dr . Modi"s letter
attached.)
I feel ·that R and F Coal Company wanted to terminate
my employment with them because if indications revealed
that I had pneumoconiosis (black lung) then as my
employer they would have to pay into my black lung
benefits and notany previous emp loyer . Previous to
,, my seasonal work with R and F Coal Company, I was
working for many years with another coal company .
I did not know unti l the physical examination en
May 10 , 1984 ~ that I had any symptoms of blac k lung .
When I had an examination in September 1983 for R and F
Coal Company there was no ment~on of any chest x-ray
problems .
MSHA ' s reason for denying my 105(c) discrimination
complaint was based on Part 90 rights, which is for
underground employees of mines and I, however, am a
surface coal miner and was discriminated against on
the basis of 'applicant for employment.'
I have
never worked in the underground coa l mines and feel
this was an unfair dec i sion to reach .
On February 4, 1985, the respondent filed an answer to
Mr. Janoski's complaint, and at th~ iame time filed a motion
to dismiss the complai nt , with· a ~upporting memorandum. The
respondent admits that Hr. Janoski was employed as a temporary,
seasonal truck driver from September 22, 1983 to November 11, 1983,
and that he received an offer of temporary employrnent . in
early May 1984 , contingent upon his satisfactorily passing a
physical examination . Respondent also admits that Mr. Janoski
was given a physical examination on May 10 , 1984, and that
on May 25, 1 984, he was informed that since he had failed to
meet all of the requirements for employment, the offer of
temporary employment was rescinded .

·403

Respondent's arguments in support of the motion to dismiss .
In support of its motion to dismiss, the respondent
*aintains that the commission lacks subject matter jurisdiction,
and that Mr. Janoski's complaint fails to state a claim
under section l05(c) of the Act .
With regard to the assertion that the Commission lacks
jurisdiction to entertain the complaint, the respondent cites
two cases where the former Interior Board of Mine Operations
Appeals and the Commission ruled that claims involving
alleged pneumoconiosis discrimination cannot be processed
through the Corr~ission under section 105(c), but instead lie
within the jurisdiction of the Secretary of Labor . Higgins
v. Old Ben Coal Corporation, 1 MSHC 1169 (1974} aff~d on other
g1:ounds sub. nom. Higgins v . Marshall , 585 F.2d 1035 (D .C..
Cir. 1978). cert. denied, 44 1 u.s . 931 (1979); Matala v .
Consolidated Coal Co. , 1 MSHC 2001 (1979) ~
Higgins involved a .claim by several miners that. they
were. dis criminated against byrvirtue of the fact that they
suf.fered from pneumoconiosis in that the mine operator failed
to . maintain their current rate of pay after transferring
them to less dusty areas of the mine. The Interior Boa rd
of Mine Operations Appeals d ismissed the complaint for lack
of jurisdiction , and stated as follows at l MSHC 117 2:
. • . since there is specific statutory provision
for review of discharge and/or discrimination of a
miner based upon the fact that such miner suffers
from pneumoconiosis, as here alleged, we need not
speculate whether, in the absence of such provision,
this Board could or should assume jurisdiction under
some other provision of the Act, specifically llO(b) .
We think it highly unlikely that Congress intended
to confer jurisdiction upon ~oth the Secretary of
Labor and the Secretary of the Interior pertaining
to the same subject matter within the confines of
the same Act. Higgins, 1· MSHC <?-.t 1172.
(Section
110 (b) of the 1969 Act is~. substantially similar to
Section 105(c) of the Act.)
Matala involved a claim similar to that in Higgins, and
Matala ' s complaint was pending on appeal with the Interior
Board of Mine Operations Appeals at the time the Secretary of
the Interior's adjudicative functions under the 1969 Coal Act
were transferred to the Commission. Upon consideration of
Matala's appeal of the dismissal of his complaint, the Commission
cited with approval the prior ruling by the Board in Higgins
as quote.d above, and stated as follows at 1 MSHC 2002:

404

We conclude, however, that Matala's allegation
of discrimination should be resolved under the
extensive provisions of section 428(b) of the Black
Lung Benefits Act, which are enforced by the Secretary
of Labor, not the Commission. Despite Matala's attempt
to characterize this dispute as a section llO(b)
discrimination claim, his application raises issues of
discrimination related exclusively to rights of miners
afflicted with pneumoconiosis. Congress has provided
a more specific remedy in the black Lung Benefits Act
for claims of discrimination based on pneumoconiosis
and there is no need for this Commission to apply t he
more general provisions of section llO(b) of the 1969
Act in Order to provide Matala with a remedy for any
discriminatory practiqes which might be present in
this case.
In support of its conclusion that Mr. Janoski has no
discrimination claim under ·section lOS(c} of the Act , the
respondent points out that Mr. Janoski alleges that he was
an applicant for employment who was the subject of medical
evaluations and potential transfer under a standard published
pursuant to section 101 of the Act, and was thus protected
by_ the clause in section l05(c) prohibiting discrimination
against any miner or applicanc for employment who is the
subject of such medical evaluations and potential transfer .
Respondent maintains that the standards promulgated
pursuant to section 101 are those set out as 29 C.F.R. Part 90,
and that section 90.1 provides that such standards are only
applicable to miners who are employed at underground coal
mines or at surface work areas of underground coal mines.
Since the respondent operates a surface coal mine, and since
Mr. Janoski admits that he is a surface coal miner and had
never worked in the underground coal mines, respondent concludes
that Mr. Janoski is not a protected person entitled to relief
under section l05(c) of the Act.
Discussion
Section l05(c) (l) of the Mine A&t provides in pertinent
part 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

405

coal or other mine subject to this Act
* * * because such miner, representative
of miners or applicant for employment lS
the subject of medical evaluations and
potential transfer under a standard published
pursuant to section 101 * * * .
(Emphasis
added.)
Section lOl(a) (7), of the Mine Act provides in pertinent
part as follows:

* * * where appropriate, any such mandatory
st~nd~rds sh~ll prescribe the type and frequency of
medical examinations or other tests which shall
be made available, by the operator at his cost 1
to miners exposed to such hazards in order to most
effectively determine whether the health of such
miners is adversely affected by such exposure .
Where appropriate , the mandatory standard shall
provide that where a determination is made that
a miner may suffer material impa irment of health
·· ·or functional capacity by reason of exposure
··
to the hazard covered by such mandatory standard ,
that miner shall be removed from such exposure
and reassigned. Any miner transferred as a
result of such exposure shall continue to receive
compensation for such work at no less than the
regular rate of pay for miners in the classification such miner held immediately prior to his
transfer . In the event of the transfer of a miner
pursuant to the preceding sentence, increases in
wages of the transferred miner shall be based
upon the new work classification.

§

Section 428(a) of the Black Lung Benefits Act, 30 U.S.Co
938 (a) , provides as follows: .
No operator shall discharge or i~ any other way
discriminate against any ~in~r ~~p loyed by him
by reason of the fact tha~ s~ch miner is suftering
from pneumoconiosis. No person shall cause
or attempt to cause an operator to violate this
section. For the purposes of this subsection the
term 'miner' shall not include any person who
has been found to be totally disabled.

The mandatory health standards authorized by section
lOl(a} (7) of the Mine Act, are found at 30 C.F.R. Part 90.

·406

Pursuant to those regulations a miner employed at an underground coal mine or at a surface ar~a of an underground
coal mine may be eligible to work in a lmv dust area of the
mine where there has been a determination that he has evidence
of pneumoconiosis.
If there is evidence of pneumoconiosis,
a ·miner may e xercise his option to work in a mine area where
the dust levels are below 1.0 milligrams per cubic meter of
air.
Richard C. Johnston v. Olga Coal Company, WEVA 82-236-D,
5 FMSHRC 1151 (June 20, 1983), and Gary Goff v. The ·Youghiogheny
and Ohio Coal Company, 6 FMSHRC 2055 (August 24, 1984),
were both decided by Commission Judge Gary Melick subsequent
to the Matala and Higgins cases . The Johnston case involved
a complaint by a miner pursuant to section 105(c) (3) of the
Mine Act alleging that his level of pay was reduced by the
mine operator in violation of his statutory rights as a miner
deemed to have been transferred because of pneumoconiosis.
The case proceeded to hearingr and after finding that the
complainant had voluntarily waived and relinquished his righ·t
to transfer, Judge Melick held that the complainant had
failed to meet his initial burden of proving that his reduction
in pay was in violation of section 105(c) (1) of the Mine Act ,
and he dismissed the comp la int .
The Goff case concerned a complaint of alleged d iscrimination under section 105(c) (1) of the Mine Act because of an
underlying medical condition, pneumoconiosis. Relying on
Matala v . Consolidation Coal Co., supra, Judge Melick summarily
dismissed the complaint and ruled that a complaint of
discrimination on the basis of pneumoconiosis should be
resolved under section 428(b) of the Bl ack Lung Benefits
Act, rather than under section 105(c) of the Mine Act.
Judge Melick stated as follows at 6 fMSHRC 2057 :
While the anti- discrimination provisions of
section 105 (c) (1) of the 1977 · Act replacing
and enhancing the provisions of section llO(b}
of the 1 969 Act are broader in coverage than the
comparable provisions of the 1969 Act, the
rationale for having discrmination complaints based
on allegations that the miner suffers from
pneumoconiosis resolved under the specific
statutory provisions set fo rth in the Black
Lung Benefits Act has continuing validity.
Mr. Goff filed an appeal of Judge Melick ' s dismissal of
his complaint with the Commission, and on September 26 , 1984,
the Commission granted his petition for discretionary_ review,
and the case is now before the Commission for further adjudication.

·407

Conclusion
I take note of the fact that under section 428 of the
Black Lung Benefits Act, a coal mine operator is prohibited
from discharging, or otherwise discriminating against , a miner
employed by him by reason of the fact that the miner is
suffering from pneumoconiosis. Applicants for jobs in a coal
mine are not covered by section 428, and are not afforded
the protections provided in section 428 for employees. On
the other hand, the discrimination prohibitions found in
section lOS(c) of the Mine Act extend to coal mine applicants
as well as miners on the payroll. Applicants who are the
subject of medical evaluations and potentia l transfer under
a standard published pursuant to section 101 are protected
by section lOS(c). However, the extent of any such protection
is specifically tied to the regulations promulgated pursuant
to section 101 of the Mine Act .
.: Mr. Janoski asserts that MSHA 1 s denial of his discrimination complaint under section lOS(c) of the Mine Act was
based on the fact that as a surface coal miner he was not
covered by MSHA's Part 90 regulations, and therefore had
no rights under those regulations .
The applicable MSHA
regulations promulgated pursuant to section 101 are those
found in Part 90; Title 30 1 Code of Federal Regulations !
30 C.F.R. Part 90. As correctly pointed out by the respondent ,
those regulations only apply to miners who are employed at
underground coal mines or at surface work areas of underground
coal mines. Since the respondent operates a surface coal
mine, and since Mr. Janoski has admitted that he is a surface
coal miner and has never worked in the underground coal mines,
I conclude that he is not a protected person entitled to
relief under section lOS(c) of the Mine Act . Accordingly, I
conclude that his complaint should be dismissed.
Since I have concluded that Mr. ·Janoski has no cause
of action under section lOS(c)\ of\ the .Mine Act, I see no
need to address the jurisdictional question raised by the
respondent as part of its motion to dismiss. The issue
concerning the Commission's jurisdiction to entertain
complaints of this kind is now pending before the Commission
in the Goff case.

408

ORDER
The respondent '.s motion to dismiss the complaint on
the ground that it fails to state a claim under section
lOS(c) of the Mine Act, IS GRANTED, and the complaint
IS DISMISSED.

V

Distribution :
Mr. Francis M. Janoski , Box 212 , Bethesda, OH 42719 (Certified
Mail)
Kathleen A. Phillips, Esq., Shell Oil Co., P.O . 576, Houston ,
TX 77001 (Certified Mail)
and F Coal Co. 1 North Main Stree:t··Extension , Cadiz , OH
43907 (Certified Mail)

R

Office of Special Investigation, MSHA v u.s. Department of
Labor, 4015 Wilson Blvd., Arlington , VA 22203 lCertified Mail)

*! I take official notice of a Memorandum of Understanding
between MSHA and the Employment Standards Administration (ESA) ,
a separate agency within the Department of Labor, 44 Fed. Reg.
75,952 , December 21, 1979. The agreement provides for a
central clearing house for inquiries and investigations by
MSHA and ESA for discrimination c¢mplaints filed under section
105(c) and 428 of the Mine Act . MSHA and ESA are responsible
for coordination and consultation in the handling of such
complaints, and since MSHA has advised Mr. Janoski that it
has forwarded his complaint td ESA, he should contact MSHA
or ESA directly to ascertain the status of his complaint
within the ESA.
I believe that MSHA has a duty to monitor
Mr. Janoski ' s ESA complaint, and to specifically advise him
of the status of its referral to that agency.
I also believe
that MSHA has a duty to specifically and . fully advise
Mr. Janoski as to the reasons supporting its con'c lusion
that his rights under section lOS(c} were not violated.

slk

409

FEDERAL MINE SAFETY AND HEALTH REVIEW COM MISSION
OFFICE Or ADMINISTRATIVE lAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 13 1985

COMPENSATION PROCEEDING

LOCAL-UNION _1609, DISTRICT 2
UNITED MINE WORKERS OF
AMERICA ,
Complainant

Docket No: PENN 85 - 91-C
0

0

v.

Greenwich No. 1 Mine
0

.
0
0

GREENWICH COLLIERIES,
Respondent •

DECISION
Before :

Judge Moore

On February 22 , 1985 0 Responaent Greenwich Collieries
fil ed a Motion for Summary Decision . On March 8, 198 5, t.he
United Mine Workers of America filed a Motion to Stay the
Proceedings and a Memoranda in Support Thereof and in Opposition
to the Motion for Summary Decision.
I DENY the :otion to St ay. While the Commission has
cases before it that might govern the outcome of this case,
I have no idea when the Commission might decide these cases
and in some cases , for one reason or another, the Commission
does not rule on all the issues presented to it . Also , in
a recent decision, Secretary of Labor v. Youghioghemey
and Ohio Coal Com~any, the Commission , on the behest of MSHA
vacated the citat~on and dismissed the case without ·ruling
on an issue which is pertinent to the instant case. 1/ I
think it is my job to make my ruling on the issues as I see
them and the Commission can either affirm or reverse .
On November 7 , 1984 at 11:00 A.M. the . inspector issued
an imminent danger order when he learned that " a concentration
of methan e in excess of 5% has been found by a certified
employee of this company in the immediate return of the A4-71
active working section ·~. At 3: 3 0 that afternoon , he issued
a citation under Section 104(a) of the Acb alleging a violation
of 30 C . P.R. 75 . 316- 2(i). This latter section is not a

1/
The issue was whether a concentration of more then
1% methane constituted a violation. The Secretary ' s
trial staff thought so but its appellant staff did
not. The Commission decided not to rule on the issue
in such a nonadversary situation.

·410

mandatory standard but is a criterion to be used by district
managers in approving a ventilation system . The miners idled
by th~ § 107 imminent danger order then sought compensation
pursuant to § 111 of the Act. That section requires, regard l ess
of the validity of the order, "full compensation by the
operator at the regular rates of pay for the period they are
idled, but for not more than the balance of such shift. If
such order is not terminated prior to the next working
shift, all miners on that shift who are idled by such order,
shall be entitled to full compensation by the operator at
the regular rates of pay for the . period they are idled, but
for not more than four hours of such shift ." The company
admits that it owes the compensation described above .
The section goes on tci s~~ that if the mine or an area
thereof is closed by a ~ 104 or § 107 order , "for a failure
of the operator to comply with any mandatory health or
safety standards o ~ • [ compensation shall be] for such time
as the miners are idled · by such closing ,. or for one '~:..re ek. $
whichever is the lesser ~ 1.1 It is this 11 long termn compensation
that is at issue in this case.
In order to get long - term
compensation the closure order issued for a violation must
be valid. At the outset the question i s : was the order
issued for a violation of a mandatory s·tandard? I hold that:.
it was not . Under§ 30l(c) (2 ) of the miscellaneous provisions
of the Federal Mine Safety and Health Amendments Act of
1977, we are bound by the rulings of the Interior Board of
Mine Operations Appeals until told otherwise by the Commission
or a Court. The Board's holdings were succintly summarized
by Judge Broderick in Secretary of Labor v. Youghiogheney .
and Ohio Coal Company, FMSHRC 1581, 1584, September 19, ·'
1983) . He said:
In a case under the 1969 Coal Act, the Board
of Mine Operations Appeals held that a finding of
methane in excess of six percent six feet from the
working face did not in itself establish a violation of
section 303(h) (2) of the Coal Act (this statutory
provision is identical to 30 C.F . R . §75.308. Eastern
Associated Coal Corporation, 1 IBMA 233 (1972). The
hold~ng was reaff~rmed in Mid - Continent Coal and Coke
Company, 1 IBMA 250 (1972) where the Board said:
"Neither the Act nor the Regulations provides that a
mere presence of methane gas in excess of 1 . 0 volume
per centum is per sea violation." IBMA at 253. In
1977 , the Board held that a 5 percent methane accumulation
in the face did not establish a violation of 30 C.P.R .
§ 75 . 301 (requiring ventilation of active workings with

·411

air of sufficient volume and velocity to dilute, render
harmless and carry away explosive gasses) • "The Board
is of the opinion that it would be patently inconsistent
administration to hold that an excessive methane accumulation
constitutes a violation under 30 C.F.R. § 75 . 301 when
the provisions of 30 C.F . R. § 75.308 provide for
specific actions to be taken when. such an excessive
accumulation is discovered." Mid-Continent Coal and
Coke Company, 8 IBMA, 204, 212, (1977).
I see no essential difference between the case at bar and
the cases before the Board of Mine Operations Appeals . Four
and one half hours after issuing the order , the inspector
issued a citation which he said was a part of the. ordero I
have never seen this type 9f procedure before , but in any
event a citation can not ciose a mine nor idle workers , and
it did not allege a violation of a mandatory standard .
The
criteria are for the guida.nce of MSHA district managers ~
not standards that can be violated by mine operators . The
Board of Mine Operation's Appeals has so held. The Valley
Camp Coal Company, 3 IBMA 176, 181, (1974). And, as
stated, we are bound · by t ·hese decisions until they are·
reversed.
I hold that the miners were not idled by an order
issued "for a failure of the operator to comply with any
mandatory health or safety standards • • • " The Motion for
Summary Decision is GRANTED in favor of Greenwich Collieries
insofar as long term compensation is concerned and that
portion of the complaint is DISMISSED.
Inasmuch as Greenwich
admits it owes the short term compensation, it is ORDERED to
pay that compensation within 30 days, with interest figured
in accordance with the Commission's decision in Secretary
Ex Rel Bailey v. Arkansas-Carbona, 5 FMSHRC 2042 (December
1983). Footnote 15 of that decision is attached.

Charles c. Moore, Jr.
Administrative Law Ju~ge
Distribution :
Timothy M. Biddle, Esq., and Timothy P. Ryan, Esq., Crowell
and Moring, 1100 Connecticut Avenue, NW., Washington, D.C.
20036 (Certified Mail}
Joyce A. Hanu1a, . L~gal Assistant, United Mine Workers of
America, 900 15th Street, NW., Washington, D.C. 20005
(Certified Mail)
Attachment
/db

- ·412

15/ The mechanics of the quarterly computation system may be illustrated
by the following hypothetical example , in which a ~iner is discriminatori1y
discharged on January 1, 1983 , and offered reinstatement on September 30,
1983. Payment of back pay and interest is tendered on October 15 , 1983 .
After subtra c tion of the relevant interim earnings, the net back pay of
each quarter involved in the back pay period is as follows:
First quarter (beginning January 1 , 1983) $1 ,.000
Second quarter (beginning April 1, 1983)
§1,000
Third quarter (beginning July 1 , 1983)
$1 , 000
Total net back pay
$3,000
The adjusted prime interes t rates in effect in 1983 are:
16% per year (.0004444% per ~ay) from January 1, 1983, to
'
i
June 30, 1983;
'
11% per year (.0003055% per day) from July 1, 1983 , to
December 31, 1983.
The interest award on the net back pay of each of these quarters i s as follows :
(1) Firs t Quarter :
. (a) At 16% interest until end of second quarter of 1983 :
$1,000 net back pay x 91 accrued days of interest
(last day of first quarter plus the entire second
quarter) x .0004444 = $40 . 44
Plus ,
(b) At 11% interest for entire third quarter through t he
date of oavment :
$1,000 net back pay x 105 accrued days of interest (the
third quarter plus 15 days) x .0003055 = $32.07
( c ) To t al interest award on first quar t er :
$40.44 + $32.07 ~ $72 . 51
(2) Second Quarte r
(a) At 16% intere st for the last day of the second quarter
$1 , 000 x 1 accr ued day of inter~st .x .0004444 = $ . 44
Plus ,
(b) At 11% interest for the entire third quarter through dr. ~t
of payment:
$1 , 000 x 105 accrued days Qf igterest x .0003055 = $32.07
(c) Total = $.44 + $32.07
$32.51 ~
' ·
(3) Th i rd Quarter:
At 11% interest for the last day of the third auarter
through date of payment :
$1,000 x 16 accrued days of i nterest x .0003055 = $4.88 total
(4) Total Interest Awar d:
$72. 51 + 32 . 51 + 4.88 = $109.90
This amount is added t o trre total amount of back pay ($3,000), for a total
back pay award of $3,109.90.

·413

~

FEDERAL MINE SAFETY AND HEAl~ H REVIEV\'' CO/l1MISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE . SUITE 400
DENVER. COlORADO 80204

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADNINIS'fRATION (MSHA),
Petitioner

M/tP

CIVIL PENALTY PROCEEDING
Docket No. WEST 84-53-M
A.C. No. 10-01249-05501

v.

Lake Fork Pit

LAKE FORK GRAVEL, INC. ,
Respondent
ENTRY OF DEFAULT AND FINAL DECISION
AND ORDER OF ASSESSMENT
Before:

Judge Lasher

Respondentq Lake ~ iork Gravel 8 Inc ou has failed to respond to
my Order to Show Cause dated February 26 8 19850 Respo ndent has
also fai led to comply with the Prehearing Requirements set forth
in the Notice of Hearing herein dated February 7v 1985u in two
respects. First, it has failed to respond to initiatives of
counsel for the Petitioner, Rochelle Kleinberg, to communicate
with it to comply with such requirements. l j Secondly ,
Respondent has failed to file with the undersigned the written
submissions required by the second paragraph of such prehearing
requirements. Thus, Respondent effectively has become
unreachable by all reasonable processes of communication and has
otherwise failed to establish good cause for its various failures
to comply with standard prehearing requirements. Accordingly, it
is found to be in default and to have waived its right to a
hearing and to contest the proposed penalties for the 6
violations alleged and described in Petitioner's Proposal f or
Assessment of Penalty. 29 C.F.R. 2700.63.

1/ Counsel for the Secretary has advised me on March 11, 1985 0
that she has called Respondent's Sacramento, California phone
number <916) 929-4245)) on two occasions, 2/12/85 and 2/19/85 ,
and left messages but that Respondent has failed to return these
calls~ Counsel has also tried to reach Respondent on numerous
occasions at its Idaho number (208) 634-2158)) to no avail.

414

It i s therefore ordered that the hec..ring scheduled to
commence in Boise, Idaho, on March 19 , 1985 , be CANCELLED , and
th at Respondent pay the following p e nalties, totaling $154 . 00, t o
the Secretary of Labor ~ithin 30 d a ys {rom the date hereof :
Ci tati.on

T~ umber

Penalty

:.222~896

s 54.00

2225&97
2225898
2 22589 9
2225900
2226501

20.00
20.00
20.00
20 .00
20.0 0
$154.00

Total

;:;-::~·- / ._ ~ , .{

Cl-

,/i:.:..-d·~- /z _
t. .

Michael A. Lasher , Jr.
Admin istrative Law Judge
Distribution :
Rochelle Kle inberg v Esq. u Office of the Solicitor 9 U.S.
Department of Labor, 8003 Federal Building , Seattle , Washington
9817 4 <Certified Mail)
Mr. Charles L. Chesney, Lake Fork Gravel , Inc., P . O. Box 60405
Sacramento, California 95860 (Certified Mail)
Mr . Charles L. Chesney, P.O . Box 733A, Lake Fork, Idaho
(Certified Mail)

/blc

41 5

83635

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

CONTEST PROCEEDING

INDUSTRIAL RESOURCES, INC.,
Contestant

Docket No. VA 85 - 10-R
Citation No. 2455472; 12/6/84

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

Buchanan No . 1 Mine

ORDER OF DISMISSAL
Before :

Judge Steffey

Counsel for contestant filed on February 5 , 1985 , a notice
of contest seeking review o f Ci tatio n No . 24 55 4 7 2 date d Decembe r 6 , 198 4. Secti on 10 5 (d) r of the Federa l Mine Sa f ety a n d
Health Act of 1977 requires tha t a n o p era tor no t ify the Secretary o f Labor within 30 days of rece ipt o f a citat ion t ha t he
intends to contest the citation . The certificate o f service
shows that contestant did not serve a copy of the notice o f
contest on the Secretary until February 1, 1985, which was 56
days after contestant received the citation.
Section 2700.20 of the Commission' s ru l es , 29 C.F.R.
2700 . 20, provide s for a contestant to file a notice of contest with the Commission "at or following the timely filing
of his notice of contest with the Secretary . " The Commission ' s
rules , therefore, recognize the need for a contestant to notify
t he Secretary that a citation is being conteste d within 30 days
after its receipt by contestant.
§

The notice of contest states that an informal conference
with respect to Citation No . 2455472 was held in Richlands ,
Virginia, on January 14, 1985, which. resulted "in said citation remaining in full force and effect." Contestant has not
submitted any modification of the citation occurring after
December 6 , 1984 , which might justify a noti f ication to the
Secretary of an intent to contest the citation within 30 days
after a modification of the citation. An informal conference
is not the equivalent of a modification or change in a citation which expanas the 30-day notification period required by
section 105(d) .
Soon after the 19 7 7 Act was passed, I issued on January 30,
1979 , in Is l and Creek Coal Company, Docke t No. PIKE 79-18 , an
order of dismissal in which I interpreted se c tion 105(d) as

·416

requ~r~ng an operator to file a notice of contest with the Commission within 30 days of issuance.
I dismissed the application for review in that case because it was filed with the Commission 3 days after the 30-day period had expired. The Commission affirmed my decision in Island Creek Coal Co., 1 FMSHRC
989 (1979).

The notice of contest in this proceeding was not served
on the Secretary until 26 days after the 30- day noti f ication
pe:..:iod had expired. Therefore, ·the notice of contest must be
dismissed as having been untimely filed.
Contestant may, of course, contest the val i dity o f the
citation when the Secretary f i les a proposa l for assessment of
c i v il penalty with respect to the violati o n al l eged in t h e
c itation . Energy Fuels Cor p. ~ 1 FMSHRC 299 (1 9 i 9 ) .
WHEREFORE , it is ordered :
'l'he notice of contest file d o n F'e bruary 5 u 1 9 85 , in Do cket No . VA 85-10-R, is dismissed f or failure o f contestant t o
comply with the 30-day notification period provided for i n section 1 05(d) of the Federal Mine Safety and Health Ac t of 197 7 .

~ a. JJ~

Richard c. Steffe~~
Administrative Law Judge

Distribution :

J. Scott Tharp, Esq., Tharp, Liotta & Janes, P . 0. Box 1509,
Fairmont, WV 26554 (Certified Mail)
Mary K. Spencer, Esq., Office of the ~o. l icitor, u. s . Depar tment
of Labor, Ballston Tower #3, Room 123.7 A, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)

yh

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

2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
ON BEHALF OF
GREGORY BROWN,
Complainant

DISCRIMINATION PROCEEDING
Docket No. SE 84 - 51- D
MSHA Case No . BARB CD 84-14
No o 1 Mine

v.
A & L COAL COMPANY 1 INC . 9
Respondent
ORDER
Before :

Judge Broderick

The parties have stipulated to the amount due to Complainant as back wages pursuant to my decision of November 5, 1984.
In accordance with the stipulation, Respondent is ORDERED
to pay the following sums to Complainant within 30 days of the
date of this order :
December, 1983
3 days ' s compensation
Interest

$

$

192 . 00
22 . 91
214 . 91

January, 1984 through March , 1984
Compensation
Expenses incurred i n procuring
interim employment
Less interim earnings
I nterest

$

Total Compensa t ion Due

·418

214.91
3 , 818.01
$4 , 032 . 92

$3 , 836.00
13·0 . 00
$3,966.00
480 . 00
$3 , 486 . 00
332 . 01
$3 , 8 1 8 . 01

Payment o f the above amount will comply with and satisfy
the Order to pay back wages contained in my decision of
November 5, 1984.

'til v~-5
)

I

/

)J/f3-vd-vdi

James A. Broderick
Administrative Law Judge

Distribution:
William F. Taylor, Esq., Office of the Solicitor , U.S.
Department of Labor , 280 U.S. Courthouser 801 3roadway,
Nashville, TN 37203 (Certified Mail )
William R. Seale, Esq., Mitchell , Clarke ; Pate 1 Anderson &
Wimberly, P.O. Box 1066, Pless Professional Building,
Morristown, TN 37814 (Certified Mail)
/f b

·419

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W . COLFAX AVENUE, SUITE 400
DENVER. ;S-P!flA~A~
;

; .:··•(

~ ...

.: •

. ~0204 r· ...
· ·..

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

:

~l : ~ :~1

CIVIL PENALTY PROCEEDING
Docket No . WEST 84-94-M
A.C. No . 26 - 004~8 - 05502

v.

Buffalo Road Pit and Mill

ARC MATERIALS CORPORATION,
WMK TRANSIT IvliX,
Respondent
DECISION
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor,
U. S. Department of Labor, San Francisco, California,
for Petitioner;
Michael Glancy, General Manager , WMK Transit i"l.ix ,
Las Vegas , Nevada ,.
for Respondent .

Before:

Judge Horris

This is a civil penalty proceeding initiated by the petitioner
against the respondent in accordance with Section llO(a) of the
Federal Mine Safety and Health Act of 1977, 30 U. S.C. § 820(a).
The civil penalties sought here are for the violation of a safety
regulation . The petitioner seeks $98.00 for each violation .
Citations 2245538 and 2245539
These citations charge respondent with violating Title 30,
Code of Federal Regulations, Section 56.9-3, which provides as
follows:
56 . 9-3

Mandatory. Powered mobile
equipment shall be provided
with adequate brakes.

Summary of MSHA ' s Evidence
MSHA Inspector Vaughn Cowley inspected respondent's open
pit sand and gravel operation on January 30, 1984 (Tr. 7, 8).

42.0

The company used trucks to haul materials from the pit to
the crusher dump area {Tr . 8) .
On the day of the inspection , the
company was using its two rubber-tired WABCO Model C-35 dump
trucks {Tr. 8, 9). Each vehicle hauls approximately 35 tons .
The inspector requested a ride to the dump area with the
company foreman#(Tr. 9) .
He also requested that the driver
engage the brakes on a 175-yard-long ramp. The truck, trave l ling
at 15 miles per hour, hardly slowed down as it came to a stop
(Tr. 10, 11). The truck finally came to a stop 25 yards after it
entered the flat area.
The brakes were not working since they
would not stop the truck on the grade (Tr. 11).
After the truck came to a stop, the inspector wrote an
inuni nent danger order due to ·the company 0 s failure to provide
adequate brakes (Tr . 11).
The inspector found that the same condition also existed on
the WABCO company truck number 2 .
The company mechanics stated
they had never had the time to completely go through th e brakes
to fix them (Tr. 12).
Extensive repairs were made by the company to the two
vehicles (Tr. 13, 14).
After testing the brakes, the inspector fe lt they were adequate .
However , he did notice the brake linings were smoking and had to
be adjusted. He told the operator to back off the linings (Tr. 14,
15) .
Respondent's Evidence
Michael Glancy, General Manager for WMK Transit Mix, indicated
that the company ' s two WABCO trucks operated at a speed of 20 to 22
miles per hour on the haul road. The 10 - foot-wide trucks operate
in a 22 to 30- foot - wide roadway (Tr . 19, 20).
The company employees are instructed to make a daily
maintenance repair order listing anything wrong with the equipment
( Tr . 2 2) .
The company disagrees with.the inspector's statement that
the brakes weren't adequate and witness Glancy had no such knowledge
(Tr. 22, 23). There was, however, a leaking wheel cylinder in
each of the trucks (Tr . 22) . Kits were placed in them and the
company adjusted the brakes after the citation issued (Tr. 22, 26).
Discussion
The testimony of the MSHA inspector estab l ishes violations
of the regulations in these two vehicles .
I credit his expertise
concerning the condition of the WABCO trucks.

·42 1

While respondent ' s witness Glancy indicated the brakes were
adequate, it is virtually uncontroverted that the vehicle barely
slowed down when the driver engaged its brakes (Tr . 10). The
brakes in fact were not working to the point where they would stop
the truck on the grade (Tr. 11).
The citation should be affirmed.
A portion of respondent ' s evidence addresses the issues
concerning a civil penalty. It is asserted the company did not
know that the brakes were inadequate (Tr . 23) . Further, it is
contended that the company was not negligent as initially alleged
(Tr. 6~ 28). Further, respondent questions the issue of seriousness
for 'chis violative condition (Tr . 6, 28) .
The statutory criteria for assess ing a civil penalty is
contained in Section llO(i) of the Act , now 30 U.S .C. 820(i) .
In this case the company should have known that the brakes
were inadequate .
In testing the vehicles , they would not stop
on the road. Normal operating procedures require the vehicles to
stop under these conditions .
/'•

No credible evidence supports the claim ·that responden t did
not know that the brakes were inadequate .
While it is contrary to the judge's initial views concerning
the imposition of a penalty (Tr . 29), I now conclude that the
facts establish that the imposition of the proposed penalties
is warranted.
Order
Based on the facts found to be true in the narrative portion
of this decision , and based on the conclusions of law as stated
herein , I enter the following order:
1. Citation 2245538 and the proposed civil penalty of $98 . 00
are affirmed .
2 . Citation 2245539 and the proposed civil penalty of $98.00
are affirmed.
3.
Respondent is ordered to pay the sum of $196.00 within
40 days of the date of this order.

Law Judge

422

Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, U.S.
Department of Labor, 11071 Federal Building, 450 Golden Gate
Avenue, P.O. Box 36017, San Francisco, California 94102
(Certified Mail)
Mr. Michael Glancy, General Manager, WMK Transit Mi x,
P.O. Box 14697, Las Vegas, Nevada 89114
(Certified Mail)

/ot

·423

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, loth FLOOR

-..

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

CIVIL PENALTY PROCEEDING

.
0

Docket No . CENT 85-2
A.C. No. 34-01357-03507

0
0

.

Welch Mine No . 1

TURNER BROTHERS, INC. ,
Respondent
DECISION
Appearances:

Before:

Ann Maria Soares , Esq. ; and Jack F . Ostrander u
Esq ., Office of the Solicitor , U.S. Department
of Labor , Dallas , Texas , for Petitioner ;
Robert J . Petrick , Esq. , Muskogee , Oklahoma u
for Respondent .

Judge Melick

This case is before me upon the petition for civil
penalty filed by Secretary of Labor pursuant to section
l05(d) of the Federal Mine Safety and Health Act of 1977t
30 u.s.c. § 801 et. ~, the "Act," for two violations of
regulatory standards. The general issues before me are
whether Turner Brothers Inc . (Turner) has violated the
regulations as alleged , and if so, whether those violations
were of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety or
health hazard, i.e. whether the violations were " significant
and substantial-.-,.--!£ violations ·are found, it will also be
necessary to determine the appropriate civil penalty to be
assessed in accordance with section llO(i) of the Act.
Citation Number 2218067, issued under sectio~ 104(d)(l)
of the Act, alleges a violation of the standard at 30 C.F.R.
§ 77 . 160l(c) and reads as follows :
Employee Doug Brush (Front - End Loader Operator)
supervised by Roger Regan was observed (on the left
platform holding the handrail) outside the cab of
the 992-C Front- End Loader . · The Front-End Loader
was operating at pit 001-0 by Roger Regan (Mine
Superintendent) and was being used to load over burden into rear dump trucks.

424

The cited standard states that " no person shall be
permitted to ride or be otherwise transported on or in the
following equipment whether loaded or empty; • . . (c)
outside the cabs and beds of mobile equipment . . . • "
It is not disputed that the noted employee was in fact
standing on the platform of the front - end loader while it was
being operated by the mine superintendent. The door to the
operator's cab was closed and the employee was holding onto a
handrail with one hand. The platform surface was 30 by 36
inches and was elevated 6 to 8 feet above ground. The loader
was being used to scrape ground material to form a dam to
keep water off a roadway .
Ac cording to MSHA inspector Johnny
Newport there was a serious hazard to that employee from
falling and suffering broken bones.
Respondent argues that it was necessary for the
employee to be positioned on the loader platform for instructional purposes . The employee was the regular loader operator and was being shown by the mine superintendent how ~o
use the minimum amount of ground material to form a dam. The
Respondent is accordingly raising the affirmative defense of
.. impossibility of compliance" .
In order to establish that.
defense the Respondent must prove that (l) compliance wJ.t.h
the cited standard either would be functionall y impossible or
would preclude performance of required work and {2 ) alternative means of employee protection are unavailable . Secretarv
v. Sewell Coal Company, 3 FMSHRC 1380 (1981) , aff ~ d 686 F. 2d
1066 (4th Cir. 1982).
In this case the mine operator has failed to prove
either of the two requisite elements of the defense.
I find
greater credibility in the testimony of Inspector Newport
that the mine superintendent could have successfully demonstrated the techniques of manipulating the front -end loader
to the regular operator while that operator was safely
observing from the ground . The purpose of instructing the
regular loader operator was not so much to observe the
manipulation of controls within the cab but to observe the
manipulation of the scoop in such a way as to construct a dam
by scraping up ground material. Since Respondent has also
failed to show that alternative means of employee protection
were unavailable, the asserted defense cannot be sustained.
The citation is accordingly affirmed.
In light of the undisputed evidence that Respondent has
been previously cited for the same type of violation and that
Inspector Newport had previously warn ed the mine superintendent against employees riding outside the equipment, and
indeed had given him copies of MSHA bulletins citing

·425

fatalities caused by those practices, I conclude that the
mine superintendent was grossly negligent in directing his
employee to ride outside the cab of the loader. That
negligence is imputed to the mine operator. Secretary v. Ace
Drilling Co. , 2 FMSHRC 790 (1980) .
I also conclude from the uncontested evidence that the
circumstances presented a reasonable likelihood that the
employee would suffer serious injuries such as broken bones
as a result of the cited practice . Accordingly the citation
and the attendant "significant and substantial " findings are
affirmed . Secretary v . Mathies Coal Company , 6 FMSHRC 1
(1984) - ~/

Order Number 2218074 v also issued pursuant to section
104(d)(l) of the Actv alleges a violation of the standard at
30 C.F.R . § 77 . 404(a) and charges as follows :
The Ford 600 flat bed vehicle <used to c arry
explosives and detonators) operating on the
haulroad near Pit 001 - 0 was not being maintained
in a safe operating condition in that the steering
wheel would turn approximtely 360 degrees before
the front wheels would turn left or right .
A
steering box was observed i n the bed of the v eh i c le ~
The steering box was used as parts to r epai r the
vehicle.
The cited standard requires in relevant part that
"mobile . • • equipment shall be maintained in safe operating
condition and . • • equipment in unsafe condition shall be
removed from service immediately. 11
According to the undisputed testimony of MSHA Inspector
Johnny Newport the subject vehicle was operating on the
haulage road toward the explosives magazine. Although the
truck was then empty it was regularly used to carry detonator
caps, primers and " wet bags" containing an explosive known as
" AMFO " .
It is further undisputed that its steering wheel
could be turned 345 to 350 ' degrees in either direction without any response from the wheels .
1; Inasmuch as Respondent did not contest this section
I04<d> (1) citation pursuant to section 105(d) of the Act, I
am without authority to consider the special "unwarrantable
failure " finding in this civil penalty proceeding. See
Pontiki Coal Corporation v. Secretary, 1 FMSHRC 1476 (1979)
and Wolf Creek Collieries Company 1 FMSHRC
(1979).
There i s however ample evidence to support such a finding
herein.

·4 26

The haulage road over which the 'truck was operating was
approximately 25 feet wide , 1 mile long and was composed of
rock and dirt.
It had at least one turn , and one 300 foot
stretch with a 10 to 20 degree grade. The road also had some
bumps , provided for two way traffic and was used by various
equipment including pickup and dump trucks, a grader, and
inspector's vehicles. Within this framework Inspector
Newport opined that there was indeed a " significant and
subs~antial " hazard of serious or fatal injuries from an
accident regardless of whether the truck was carrying
explosives. He concluded that it was reasonably likely that
the cited vehicle would be-unable to avoid a collision with
another vehicle using the road.
While not denying the existence of the cited conditions
Superintendant Regan felt that no hazard existed from the
defective steering condition. He reached this conclusion
from his understanding that the truck was never driven more
than 15 miles an hour. Regan also opined that since the
brakes were operational the truck could stop within 10 feet .
Regan observed that since the caps, detonators and explosives
are kept separately on the truck it was highly unlikely that
any explosion would result from any truck accident.
Inspector Newport agreed that there was little likehood of an
explosion absent a f ire .
Within this framework it is clear that a serious hazard
of collision existed from the defective steering on the cited
truck . While superintendent Regan felt that no hazard
existed because the truck could be stopped within 10 feet
ther e was such a serious lack o f control in the ability to
steer the vehicle that even such a distance on a two-way road
only 25 feet wide could be fatal.
It is highly unlikely that
the cited truck was capable of turning fast enough to avoid
an emergency such as a swerving vehicle or pedestrian
suddenly stepp i ng in its path . Under the circumstances it is
clear that a "significant and substantial " hazard exis t ed.
Mathies Coal Company, supra. Order Number 22180 7 4 is
accordingly affirmed with its attendant "sign ificant and
substantial " findings.
The government also claims that the mine operator was
negligent in allowing the cited violation because of the
negligeoce of the explosives truck driver. Under certain
circumstances a violation committed by a non-supervisory
employee may result in a finding of operator negligence. See
Secretary v. A. H. Smith Stone Company, 5 FMSHRC 13 (1983).
Among the factors to be considered are the supervision ,
training and discipline of employees to prevent violations of
the standard at issue. A. H. Smith Stone Company, supra. The

violation and hazard presented by the defective steering in
the cited explosives truck was so plainly obvious that it
reflects a seriously deficient and 1 indeed, negligent supervision , training and discipline of the employee driving the
truck.
A properly supervised, trained and disciplined
employee would clearly have taken that truck out of service
immediately.
I therefore agree that operator negligence
contributed to the violation herein.~/
In determining the amount of penalty to be asssesed in
this case I am also considering that the mine operator is of
medium size and has a moderate history of violations .
I note
however that a violation of the standard cited in Citation
Number 2218067 had previously been committed. Contrary to
the Government's allegations I find that the cited conditions
were abated promptly. The employee riding outside of the cab
of the front-end loader cited in Citation Number 2218067 was
immediately removed and the violation cited in Order Number
2218074 was corrected by replacement of the defective
steering box within 3 hours. There is no evidence that the
penalties assessed herein would have any effect on the
operators ability to remain in business .
ORDER
Citation Number 2218068 and Order Number 221807 4 are
affirmed. Turner Brothers, Inc. is hereby order to pay the
following civil penalties within 30 days of the date of this
decision:
Citation Number 2218068 - $300; Order Number 2218074 $600.

~/ For the reasons stated in footnote 1 supra the unwarrantable failure findings associated with this order are not
before me.
I note, however, on the facts of this case that
such a finding would be amply supported .

·428

Distribution:
Ann Maria Soaras, Esq., Office of the Solicitor, u.s. Department of Labor, 555 Griffin Squate, suite 501, Dallas, TX
75202 (Certified Mail)
Robert J. Petrick, Esq., P.O. Box 447, Muskogee, OK
(Certified Mail)
rbg

429

74401

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

M tli...~). -~- ·' •.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA) v
Petitione r

.

.j i):)

CIVIL PENALTY PROCEEDINGS

0

Docket No. KENT 85-49
A.C . No . 15 - 02709-0359 8-A

v.
PAUL DOUGLAS GREGORY 9
FRANK THOMAS KNIGHT
Respondents

Docket No. KENT 85-5 0
A.C. No. 15-02709-03599-A
0

v

Camp No. 1 Mine

DECISION APPROVING SETTLEMENT
Before g

Judge Melick

These cases are before me upon petitions for assessmen t
of civil penalty under Section llO(c) of the Federal Mine
Safety and Health Act of 1977 (the Act). Petitioner has
filed motions to approve settlement agreements and to dismiss
the cases. The individual respondents have agreed to pay the
proposed penalties of $500 each. I have considered the
representations and documentation submitted in these cases,
and I conclude that the proffered settlements are appropriate
under the Act.
WHEREFORE, the motions for approval of settlements are
GRANTED, and it is ORDERED that Respondents Paul Douglas
Gregory and Frank Thomas Knight e h pay a penalty of $500
within 30 days of this order. Th hearings previously
scheduled for April 1, 198
ordingl cancelled.

t ~·

Gar) Mel ck
Administri tive
(703) 756. 6261

Judge

Distribution:
Edward H. Fitch, Esq., Office of the Solicitor, u.s.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)
Michael O, McKown, Esq., Peabody Holding Co . , Inc., P.O. Box
373, St. Louis, MO 63166
(Certified Ma il)
rbg

4d0

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

BCNR MINING CORPORATION,
Contestant

" j ;:

C.t

0

t

22041

CONTEST PROCEEDINGS
Docket Nos. PENN 83-1-R
PENN 83 - 4- R

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADL1INISTRATION (MSHA) ,
Respondent

Order Nos. 2012610: 9/16/82
2012602 : 9/8/82
Clyde Mine
DECISION

Appearances :

Bronius K. Taoras , Esq ., BCNR Mining Companyp
Meadow Lands, Pennsylvania, for Contestant ;
David T . Bush, Esq., Office of the Solicitor,
U.S. Department of Labor , Philadelphia ,
Pennsylvania , for Respondent .

Before :

Judge Fauver

These proceedings involve review of two wi thdra,.,al
orders issued at BCNR Mining Corporation's Clyde Mine, under
section lOS(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801, et seq. The cases were consolidated
and heard in Pittsburgh-,-Pennsylvania.
Having considered the testimony, exhibits, and the
record as a whole, I find that a preponderance of the substantial,
probative, and reliable evidence establishes the following:
FINDINGS OF FACT
Docket No. PENN 83-4-R
1. The Clyde Mine is an underground coal mine that
produces coal for sale or use in 0r affecting interstate
commerce.
2 . On September 8, 1982, while inspecting the Clyde
Mine, MSHA Inspector John Poyle attempted to determine whether
a pre- shift examination had been performed in One West
Section. When the inspector was unable to locate dates,
times, or initials by a pre-shift examiner, he brought the
shift foreman to the section to help search but they found
nothing. By an entry recorded in the "State Book ," the

·4-31

inspector determined that a pre-shift examination had been
made . The inspector decided that a violation of 30 C.F.R. §
75.303 had occurred because the pre-shift examiner had not
marked the date, time and his initials at the places examined.
3.

The inspector believed the citation was unwarrantable
the examiner knew or should have known that the
date, time, and initials were required to be placed in the
areas examined. He therefore issued a section 104(d) (2)
order (No. 2012602). The inspector did not look into or
consider the reasons for the violation at the time he issued
the unwarrantable failure order. His trip back into the
area with the dayshift foreman was to verify that the date;
time , and initials were not there .
bec~use

4. The pre-shift examiner, Kevin Harcho l , had los·t his
chalk in the course of the midnight shift prior to doing the
pre-shift examination in question. A loading machine had
gotten stuck in a wet , muddy, area and Mr. Warchol had
worked in the mud under the machine while trying to free it .
Later he tried to use his pen to wri·te on canvas , but that
did not work. The immediate face area had not been rockdusted at that time so rock dust could not be used to mark
the faces.
5. Upon completing his px:e-shift examina 'Cion ~ t1!r .
Warchol was called to the scene of a haulage problem where
he stayed until the end of the shift, when he went to ·the
surface. By the time he was finished, the day shift, which
started at 8:00a.m., had gone into the mine .
Docket No. PENN 83-1- R

.

6. On September 16, 1982, Inspector John Poyle, accompanied
by his supervisor, Eugene Beck, and BCNR 1 s representative ,
George Comadena, conducted a regular surface inspection at
the Clyde Mine.
'
t
· ·
7. Inspectors Poyle and Beck followed fresh vehicle
tracks to the mine ' s refuse dump.
Before entering the dump,
the inspectors stopped on the roadway leading into the dump
when they observed . a highwall on a refuse pile. Mr. Poyle
was concerned with the height of the highwall and so he, Mr.
Beck, and Mr. Comadena went to the mine's safety department
to review the mine's ground control plan. Following their
review of the ground control plan, the party returned to the
dump, this time going farther into the refuse area. Whi le

432

inspecting the highwall, which exceeded the 12-ft. height
permitted by the ground control plan, Mr . Poyle observed an
overhang of approximately five feet protruding from the
highwall. The inspectors found this condition ·to be an
imminent danger because they believed the overhang was
likely to fall if hit or bumped by equipment and could cause
death or serious injury .
Inspector Poyle issued a ~ection
107(a) withdrawal order (No . 2012610) .
DISCUSSION WITH FURTHER 1.i'INDXNC::S

Docket No . PENN 83-4-R
On September B, 1982 , Inspector Poyl e issued sectlon
l04(d) (2) Order 2012602 citing a violation o f 30 ~.F. R .
§ 75.303 .
He alleged that the vio l ation ( failure to place
time, date and initials at places examined) was ~ unwarrantable" ·
and "significant and substantial, " but at the hearing the
Secretary conceded that this was not a " significant and
substantial H type violation .
BCNR concedes that there was a violation of 30 C.F.H
75.303, but seeks to vacate the order on the grounds ·that
(1) the violation was not "unwarrantable," and (2) there was
no proof that a complete "clean" inspection of the mine had
not occurred since the last section 104(d) order.
§

First, I find that the pre-shift examiner's failure to
place the time, date and his initials at the places examined
was not "unwarrantable" in · the circumstances of this violation.
He had lost his chalk, conditions were wet and he could not
write with his pen. Hindsight may 'point to other things he
might have tried, such as marking a brattice curtain with
his thumbnail or a tool edge, but they did no·t occur to him
and, overall, I find that the evidence does no·t establish an
"unwarrantable" violation.
Secondly, the Secretary offered no evidence that there
had not been a complete "clean" inspection of the mine since
the last preceding section 104(d) order .
For the above reasons, the l04(d) (2) order should be
changed to a section'l04(a) citation . It should be thus
modified, instead of being vacated, because there was.a
violation of the standard cited.

·.4 33

··oocket No. PENN 83-1- R
This case involves an ' ·order of withdrawal for a condition
which Inspectors Poyle and Eugene Beck found to be an imminent
danger.
•
....
Inspectors Poyle and Beck followed fresh vehicle tracks
to the refuse dump. Before entering the dump the inspectors
stopped on the roadway leading into the dump when they
observed a highwall on a refuse pile. Mr. Poyle was concerned
with the height of the highwall and .s o he, Mr. Beck and Mr.
Cornadena went t:o the mine's safety~ "l'epartrnent to rev~ew the
mine 1 s ground control plan. Following their review of the
ground control plan , the party returned to the durnp 6 this
time going into the refuse area .
Inspector Poyle estimated
that the highwall was about 25 feet high. While_inspecting
the highwall, Mr . Poyle observed an overhang of about five
feet protruding from the highwall , caused by extracting
materi a l from the bottom o f the refuse pile .
The overhang
was about 18 to 20 feet wide .
I find that a preponderance of the reliable evidence
establishes that the overhang constituted an imminent danger .
The inspectors reasonably surmized from their observation of
h ighlift tracks leading into the refus~ area that red dog
was being remo v ed from the bottom of the pile.
Red dog i s
slate and burned coal which can be used for laying driveways .
Although Mr. Cornadena told them no one worked in that area ,
they reasonably concluded that a highlift was being used to
extract red dog from the refuse pile. By following the
highlift tracks the inspectors observed a highwall that
proved to be in violation of the ground control plan (by
exceeding the 12-ft. lirn1t). Later; wheh they moved closer
to inspect the highwall, they became• aware. of the overhang
condition, which they determined to be an imminent danger.
As Mr. Beck described the · ~ondition , the highwall was not at
an angle of .repose or rest (the rnaximurn .angle at which a
heap of any loose or fragmented solid material will stand
without sliding) and the overhang was sticking out.
It was
clear that work was being done in this area, i . e . , the
removal of red dog from the bottom of the pile .
Indeed, it
was the removal of red dog that created the overhang .
The
inspectors ' concern was that during a future extraction the
overhang could collapse ~ausing death or serious injury. As
Inspector Poyle testified : "My opinion was if someone carne
in that was removing this red dog and would hit it,. that
whole lap could collapse on top of them (Tr . 81) ." Mr. Beck
testified:
"When he [Inspector Poyle] said he was going to
close it down I said I would back him up a hundred percent.
If he didn't do it I would have instructed him [to issue a
closure order] at that time (Tr . 132).

·434

The presence of highlift tracks leading into the refuse
area combined with the loose material made it obvious that
mining was going on and that there was no reason to believe
it would not continue. Upon close observation, at a more
favorable angle, the inspectors discovered that the undermining
of the refuse pile creat~d an overhang of unmined material:
The inspectors' concern that the overhang might collapse if
struck by a vehicle during future extraction was justified
by the facts.
If material is removed from the bottom of
pile, there is a clear -risk that the material above will
lose support and hence stability .
The inspectors acted with
reasonable care and judgment by not waiting for another
extraction to see if tile undermined pile \vould continue 'cc
hold.
CONCLUSIONS OF LAW
1.

The Commission has jurisdiction in these proceedings •

. ·2 .
On September 8 , 19 82 , BCNR Mining Corporation
violated .30 C. F . R . § 75 . 303 in that ·the pre-sh ift examiner
did not mark the time, date , and his initials at the places
he examined . Howeverf the Secretary did not meet his burden
of proving that the above violati on was Runwarrantable " and
that a ~clean " inspection had no t occurred since the las t
section 104(d) order .
Therefore J section 104(d) ( 2) Order
No. 2012602 should be converted to a section 104 (a } citation .
3. The Secretary met his burden of proving an imminent
danger as alleged in section 107(a) Order No . 2012610 .
ORDER
WHEREFORE IT IS ORDERED that:
1. The Secretary's Order -No. 20j2602, dated September
8, 1982, is MODIFIED as follows :
a.

It is changed from a section 104(d) (2)
order to a section 104(a) citation.

b.

The allegations of "unwarrantable" and
"significant and substantial" are
deleted from the citation.

·435

c.

The period at ·the end of the first
sentence in the condition or practice
section of the citation is deleted and
the words 11 in that 11 are §ubstituted,
and the next word, 11 There," is chang ed to
lower case: "there . 11

2. As so modified, Citation No. 2012602, dated September
8, 1982 , is AFFIRMED .
3.

The Secretary ws Order No . 2012610 1 dated September

l 6 q 1982 8 is AFFIRMED .

tJ:tl~~~
William Fauver
Administrative Law Judge

..

Distribution:
{.

Bronius K. Taor~s , Esq ., BCNR Mining Corp6rati on u P.O. Box
455, Race Track Road u McMurray, Pennsylv ania 153 47 (Cartifi e d
Mail)
David T. Bush, Esq., Office of the Solicitor , u.s. Department
of Labor , 3535 Market Street, Philadelphia, Pennsylvania
19104 (Certified Mail)

/kg

·436

FEDERAL MINE SAFETY AND :HEALTH Rt;VIEW CO.M MISSION
'
OFFICE OF ADMINISTRATIVE. LAW JUDGES

2 SK'(l iN E; l oth fLOOR :
5203 .· LEESSURG· PIKE
t

.

FALLS CHURCH, VIRGINIA

22041

CONTEST PROCEEDING

EMERALD M.!NES CORPORATIONf
Contestant

Docket No. PENN 84-191-R
Citation No. 2253632 ; 6/15/8 4

v ~

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

Emerald No . 1 Mine

UNITED MINE WORKERS OF
AMERICA (UMWA) ,
Representative of Miners
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 84-206
A . C. No . 36-05466-03543

v.
Emerald No . 1 Mine
EMERALD MINES CORPORATION,
Respondent
DECISION
Appearances :

R. Henry Moore, Esq., Rose, Schmidt , Dixon
& Hasley , Pittsburgh, Pennsylvania for
Contestant/Respondent ·Emerald Mines
Corporation (Emerald) i
Covette Rooney , Esq. , Office of the Solicitor,
U.S. Departmen t of Labor, Philadelphia,
Pennsylvania, for Respondent/Petitioner,
Secretary of Labor (Secretary) ;
Earl R. Pfeffer , Esq., Washington , D.C. , for
United Mi ne Workers of America (UMWA).

Before :

Judge Broderick

STATEMENT OF THE CASE
Emerald initiated a contest proceeding contesting the
citation issued on June 15, 1984, on the grounds t hat the
violation al l eged in the citation did not occur, and that
the special findings in the cita t ion of unwarrantability
and significant and substantial were improper.
The

. ·437

Secretary denied the allegations, and the UMWA filed an
appearance as representative of the miners in support of
the citation. The Secretary subsequently filed a proposa l
for a penalty . The two p roceedings were consolidated by
Order issued October 15, 1984 .
Pursuant to notice, the consolidated cases were called
for hearing in Pittsburgh , Pennsylvania, on December 12,
1984. James S . Conrad and Harry Porter testified on behalf
of the Secretary. Martin Done y , J. D. Russell, and Anthony
Robert Dean testified on behalf of Emerald. No witnesses
were called by the UMWA. All parties have filed posthearing
briefs .
I have considered the entire record and the contentions of the parties, and make the following decision.
FINDINGS OF FACT
1 . At all times pertinent to these proceedings , Emerald
was the owner and operator of an underground coal mine in
Greene County, Pennsylvania, known as the Emerald No. l Mine.
2.
Emerald ' s mining operations affect interstate
commerce.
3.
Emerald is a medium sized operator , and the subjec t
mine is a large mine, producing approximately one million tons
of coal annually.

4.
In the 24 months preceeding the issuance of the
subject citation, there were 294 violations cited at the
subject mine.
Three of the prior violations cited were of
30 C . P.R. § 75 . 303 .
5. The ability of Emerald to remain in bus iness wi ll not
be affected by the assessment of a penalty in this case.
6 . Emerald showed good faith in promptly abating the
violation charged in the contested · citation.
7 . The area of the mine involved in this case is the
6 Right haulage entries, No. 3 entry of which was an old
intake escapeway. Coal was not being produced in this area
at the time involved in these cases . It was described as
"more or less a construction area that is being set up f or
a new section" (Tr. 21).

·438

8. On June 13, 1984, Harry Porter, a miner working at
the subject mine, was assigned to work in the 6 Right section No. 3 entry to put up guarding on a cable. He was
unable to find evidence that a preshift examination had
been made and told management of this. · After the shift was
completed, he checked the mine examiner's book and found no
entries for June 12 or June 13 to show that preshift examinations had been performed.
9. In fact, the area had been examined on ~une 13, by
section foreman Marty Doney who made .a notation of the
examination in his section book . No. hazardous conditions
were found. Doney called shift foreman Don Zitko who was
on the surface and told him of the examination . However ,
the examination was not recorded in the mine examiner us
book kept on the surface .
10 . On June 14 , 1984 , at the beginning of his shift ~
Porter asked Doney whether the area had been preshif ted and
Doney assured him that it had . Federal Mine Inspe ctor James
Conrad arrived at the scene and at Porter's request , Conrad
explained to Doney that all areas where men are being sent
to wor k must be preshi f ted and the results recor~ ed .
11 . On the fo llowing morning , (th i s was t he morn i n g of
June 1 5) , Porter checked the mine examiner es books , and
there was no record of a preshift examination having been
performed of the area in question on June 14.
12 .
In fact, the area was not preshift examined on
June 14 . Doney had been under the mistaken impression that
the third shift ·foreman Bobby Dean had performed the
examination.
13. It was the practice at the subject mine for the
foremen to indicate in a report made at the end of the shift
what areas they expect to work in the following day. Doney
was asked : " Q. Did you expect that that area \IJOuld be
pre- shifted on the fourteenth? A. It usually is .
If we
tell people they are going to work in an area, the areas
usually are examined."
(Tr. 102).
14. On June 15, 1984, Inspector Conrad issued a citation under section 104(d) (l) of the Act for a violation of
30 C.F.R. § 75.303 because "a preshift examination of the
6 Right haulage old intak~ escapeway No. 3 entry from the
No. 29 crosscut to 10 crosscut had not been performed by
a certified person prior to sending two union employees
into said area. The employees were sent to perform work on
a deenerqized high voltage cable on the day shift of
June 14, 1984."

439

15. At the time the citation was issued, the condition
of the roof in the area in question was good. There was some
coal sloughage of the ribs, the entry was on intake air, and
no methane was found.
There was no electrical power in the
No . 3 entry , and coal was not being pr?duced.
STATUTORY PROVISION
Section 104(d) (1) of the Act provides in part as follows:
If, upon any inspection of ·a coal or other
mine, an authorized representative of the
Secretary finds that there has been a violation
of any mandatory health or safety standard, and
if he also finds that , while the conditions
created by such violation do not cause imminent
danger ; such violation is of such nature as
could sig nificantly and substantially contribute
to the cause and effect of a coal or other mine
safety or hea lth hazard, and if he finds such
violation to be caused by an unwarrantable
failure of such operator to comply with such
mandatory health or safety standards , he shall
include such finding in any citation given to
the operator under this Act.
REGULATORY PROVISIONS
30 C.F.R. § 75.303 provides as follows:
(a) Within 3 hours immediately preceding
the beginning of any shift, an~ before any miner
in such shift enters the active workinqs of a
coal mine, certified persons designated by the
operator of the mine shall examine such workings
and any other underground area of the mine desig nated by the Secretary or his authorized representative. Each such examiner shall examine
every working section in such workings and shall
make tests in each such working section for
accumulations of methane with means approved by
the Secretary for detecting methane, and shall
make tests for oxygen defic~ency with a permissible flame safety lamp or other means approved
by the Secretary; examine seals and doors to
determine whether they are functioning properly;
examine and test the roof, face, and rib conditions in such working section; examine active
roadways , travelways , and belt conveyors on which

440

men are carried, approaches to abandoned areas,
and accessible falls in such section for hazards;
test by means of an anemometer or other device
approved by the Secretary to determine whether
the air in each split is traveling· in its proper
course and in normal volume and velocity; and
examine for such other hazards and violations of
the mandatory health or safety standards, as an
authorized representative of the Secretary may
from time to time require . Belt conve yors on
which coal is carried shall be examined after
each coal-producing shift has-begun . Such mine
examiner shall place his ·initials and the date
and time at all places he examines .
If such
mine examiner finds a condition whic h constitutes
a violation of a mandatory health or saf ety
standard or any condition which is hazardous to
persons who may enter or be in such area ; h e
shall indicate such hazardous place b y posting
a "danger" sign conspicuously at all point s
which persons entering such hazardous place
would be required to pass, and shall notif y the
operator of the mine . No person , other t h an a n
authorized representative of the Se cretary o r a
State mine inspector or persons authorized by
the operator to enter such place for the p urpose
of eliminating the hazardous condition therein ,
shall enter such place while such sign is so
posted. Upon completing his examination, such
mine examiner shall report the results of his
examination to a person , designated by the
operator to receive such reports at a designated
station on the surface of the mine, before other
persons enter the underground a~ea~ of such mine
to work in such shift. Each such mine examiner
shall also record the.results of his examination
with ink or indelible pencil in a book approved
the Secretary kept for such purpose in an area
on the surface of the mine chosen by the operator
to minimize the danger of destruction by fire or
other hazard, and the record shall be open for
inspection by interested persons.
(b) No person (other than certified persons
designated under this § 75 . 303) shall enter any
underground area , except during any shift, unless
an examinat ion of such area as prescribed in this
§ 75 . 303 has been made within 8 hours immediately
preceding his entrance into such area.

·- 44 1

30 C .F. R. § 75 . 2(g) provides in part as follows:
"(4)
' Active workings' means any place in a coal mine where miners
are normally required to work or travel;"
ISSUES

·.

1 . Whether the condition cited was a violation o f the
mandatory standard as alleged?
(a)
Did the area involved constitute
" active workings? "
If so , whether t he violation was si g nif i can t
2.
substantia l ?

and

3.
I f so, wh e ther t h e vi olatio n ~p;as caused b v the
ope r ato r ? s u nv1ar rantable f a i l ure to comply -v.rit.h t h e standard~;
4.
I £ so , what i s t h e appro pria te p enalty f or the
v io l ati on ?
CONCLUSIONS OF LAW
Eme r a ld is subj ec t ·to ·t he J\ct in t;he opera·tion c·£ t.he
mine a n d I h a ve j urisdic tion of the parties and s u bject
matt e r of these case s.
THE VIOLATION
Eme rald concedes that the area in question,
the No. 3 entry of the 6 Right section , was not
examined within 3 hours preceding the beginning
of the day shift on June 14, 1984. There i s no
dispute that miners wer e assigned to work and
did actually perf orm work in the area on the
day shi f t on June 14 .· Emerald takes the posi tion, however, that the area did not constitute
"active workings , " because miners were not
"normally" or "regularly 11 assigned to work or .
travel in the area .
I interpret the preshift
examination requirement to apply to any area in
the mine where miners work or travel .
The
defini·tion in 30 C.F.R . §. 75.2(g) ( 4 ) d oes not
limit but rather expands the areas : a preshift
examination is required in an area where miners
normally are required to work or travel even
though the y do not in fact work or travel there
on the shift in question .
The purpose o f the

442

standard is to detect hazards which might result
in injury to miners. The purpose would be ill
served if it i ncluded only areas where miners
regularly worked or travelled and excluded areas
where they in fact worKed or traveiled at the
time of a citation but did so in ~n irregular
manner .
It is clear that the preshift exam i nation requirement is not limited to coal produc ing areas : conveyor belt entries are active
workings .
Jone s & Laughl in Steel Corp.,
3 FMSHRC 1721 (1981), 5 FMSHRC 1209 (1983),
UMWA v. FMSHRCP 3 BNA MSHC 128~ (D.C . Cir . 1 984) ;
as-are escapeways, Old Ben Coa l Co ., 3 FMSHRC
608 (1981): and ret urn air courses, Kaiser Steel
Corp. , 3 IBMA 489 (1974); and high voltage cable
entries, Mid-Continent Coke &, Coal Co. . l IBHA
250 (1972). The sec ond sentence in the standard
requires specific exa minations and tests to be
performed in "every working section in such
workings." It is clear that the area involved
herein is not a wo rking section.
Does this
limit or delineate the term active workings used
in the first sentence? I think not.
It merely
elaborates and makes more specii ic the Jdnd of
preshift examination requ1red to be made i~
working sections.
It ,,.muld be illogical , anG
\'Tould render the first sentence meaningless, to
conclude that the only examinations required
were examinations of working sections .
I hold
that any area in an underground coal mine to
which miners ar e a ssigned to work or through
which they are requ ired to travel constitutes
active workings and a preshift examination is
mandated by 30 C.P.R. § 75.303 . ·Therefore , I
conclude tha t a violation of the standard has
been est abl is h ed in this c ase.
SIGNIFICANT AND SUBSTANTIAL
The Commiss i on has grappled with the ques tion of how to determine whether a violation is
signif icant and substant ial in National Gypsum
Co., 3 FMSHRC 822 (1981) and . Mathies Coal Co.,
~FMSHRC 1 (1984).
In the latter case, the
Commission held that :

443

[I]n order to establish that a violation of a
mandatory safety standard is significant and
substantial . . • the 6ecretary . . • must
prove :
(l) the underlying violation of a
mandatory safety standard; (2) a discrete
safe t y hazard - that is , a measur~ of danger to
safety - contributed to by the vi6-lation; (3) a
reasonable likelihood that the hazard contri buted to wil l result in an injury; and (4) a
reasonable likelihood that the injury in ques tion will be of a reasonably serious nature.
Mathies , 3-4.
~
The violat ion found in this case is the
failure to perform a required inspection. How
is the seriousness of such a violation to be
evaluated? How does one evaluate the hazard to
which the vio l ation contributes? By what is
disclosed on an examination of the area after
the examination? Emerald contends that this is
the test.
But the hazard and the violation
here involve, not the condition of the area as
such, but rather the assigning of miners to work
in an uninspected area.
30 C.F.R . § 75.300-4
requires daily inspection of main fans; 75 . 30 4
requires onshift examinations for hazardous
conditions including methane and oxygen deficiency; 75 . 306 requires weekly ventilation
examinations ; 75.314 requires special inspection
of idle and abandoned areas; 75.800 - 3 requires
testing and examination of circuit breakers.
There are other similar requirements . Can it
seriously be argued that failure to perform one
of these examinations is not significant and
substantial if a post-violation examination does
not show hazardous conditions? The whole ration ale for requiring preshift examinations is the
fact that underground coal mines are places of
unexpected, unanticipated hazards:
roof hazards,
rib hazards , ventilation and methane hazards.
I
conclude that failure to make the required preshift examination of active workings in an under ground coal mine contributes to "a measure of
danger to safety" which is reasonably likely to
result in a reasonably serious injury.
The violation was significant and substantial.

UNWARRANTABLE FAILURE
The Interior Board of Mine OPerations Appeals
interpreted the term unwarrantable failure under
the Coal Act in Zeiglef Coal Co.,~7 IBMA 280
(1977).
A violation is caused by . unwarrantable
failure, according to the Board, {f the operator
"has failed to abate the conditions or practices
constituting [the] violation • • . [which it]
knew or should have known existed or which it
failed to abate because of a lack of due dili~ . .
gence, or because of indifference or lack of
reasonable care." Id. at 295-96 . See also
United s·tates Stee·l Corporation ' 6 !?MSHRC 1423
1436-37 (1984); Secretarv v. u.s. Steel Mining
Company , Inc ., 6 FMSHRC 310 , 313 (ALJ 1984) .
The fa cts of the present case show (!) miners
worked in the area in question on at least
2 days prior t o the violation ~ (2) the examination on June 13 (the day prio~ to the violation)
was made only after the foreman was reminded of
it by a miner , and it was not entered in the
mine examiner's book.
(3)
At the beginning of
the shift on J·une 14 r ·the same miner asked
whether tb.e area had been pre shifted and the
federal inspector reminded the foreman of the
requirement for conducting preshift examinations;
(4) the failure to examine was not intentional.
It resulted from a misunderstanding by the
foreman on the previous shift. These facts persuade me that the failure to conduct the preshift examination resulted from a lack of
reasonable care: rea sonable care would have
made the operator devise a more'ef'ficient system
for scheduling preshift e xaminations in areas
where miners are scheduled to work. The operator was given sufficient notice to inform him
that the current practice was _pot working.
Therefore: I conclude that the violation was
caused by Emerald's unwarrantable failure to
comply with the regulation .
(j

PENALTY
The above discussion demonstrates, I think, that the
violation was serious and was caused by the operator's
negli gence. The operator is of moderate size and the mine
is a large mine. The history of previous violations is

moderate. There is no evidence that the imposition of a
penalty in this case will have any effect on the operator ' s
ability to continue in business. The violation was abated
promptly and in good faith.
Based on the criteria in
section llO(i) of the Act, X conclude that an appropriate
penalty for the violation is $150 .
ORDER
Based on the above findings of fact and conclusions of
law, IT IS ORDERED that the contested Citation No. 2253632
is AFFIR!-1ED, including its special _f-indings of a significant
and substantial violation and an unwarrantable failure to
comply .
IT IS FURTHER ORDERED that Emerald shall wi thin 30 days
of the date o f this decision pay the sum of $150 as a civil
penalty for the v iola tion found here in .

j aM<.d kdvoJA-70/i_,
,
v '/

James A. Broderick
Administrative La\v Judge

Distribution :
R. Henry Moore, Esq., Rose, Schmidt, Dixon & Hasley ,
900 Oliver Building, Pittsburgh , PA 15222-5369 (Certified Mail)

Covette Rooney, Esq ., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 ~1arket Street,
Philadelphia, PA 19104 (Certified Mail)

.

Earl Pfeffer, Esq., United Mine Workers of America,
900 15th Street, N.W., Washington, DC 20005 (Certified Mail)

/fb

. ·446

FEDERAL M INE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

MI{i 1,) > ~·; 1q
li •·

· ' ''

· ., ~ T"

f'1 f\

- .· ~. ·

. .,., l) .J

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

.

22041

;,t "'\

CIVI L PENALTY PROCEE DING
Docket No . CENT 84-91-M
A.C. No. 29 -00 174-05519

0

0

v.
AMAX CHEMICAL CO.RPORATION .
Respondent

Amax Mi ne and Mill

.
0

DECISION
Appearances ~

Jack F . Ostrander fi Esq . , Off i ce of tl-:e Sc-:~:~(~~·
i tor , U.S. Department o f Laboz , Dailas. Texas.
for Pe ti tione r~
Charl es C. Hi gh , J r ~ p Esq. :- Kemp ., Smi 't.i:i. ., Duncan
& Hammond, El Paso, Texas and James L. Dow 8
Esq., Dow , Feezer & Williams, Carlsbad , New
Mexico, for Respondent.

Before:

Judge Melick

This case is before me upon the petition fo r c i vil
penalty filed by Secretary of Labor pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977 p
30 u.s.c. § 801 et . ~, the " Act, " for six violations of
regulatory standards. The general issues before me are
whether the Amax Chemical Corporation (Amax) has violated the
regulations as alleged and, if so, whether those violations
were of such a nature as could significantly and substant i ally contribute to the cause and effect of a mine safety or
health hazard, ie, whether the violations were "significant
and substantial-=--" If violations are found, it will also be
necessary to determine the appropriate civil penalty to be
assessed in accordance with section llO(i) of the Act.
Citation Numbers 2235657 , 2235659 and 2235660 charge
violations of the regulatory standard at 30 C.F . R . § 57.3-22
and allege that certain areas of loose and drummy sounding
roof had not been adequately roof bolted or supported. The
cited standard reads as follows:
Miners shall examine and test the back, face , and
rib of their working places at the beginning of
each shift and frequently thereafter. Supervisors
shall examine the ground conditions during daily

·447

visits to insure that proper testing and ground
control practices are being followed.
Loose
ground shall be taken down or adequately supported
before any other work is done. Ground conditions
along haulageways and travelways shall be examined
periodically and scaled or supported as necessary.
It is not disputed that the cited roof areas were in
fact "drummy" sounding. Amax contends however that the exis tence of a drummy sounding roof is not sufficient to _prove
that the roof or back is "loose" with in the meaning of the
cited standard and that without some additional evidence
MSHA's case herein must fa~l • . At hearing, Robert Kirby the
Amax general mine superintendAnt and a graduate mining
engineer conceded that a drummy sound does in fact indicate a
separation in the roof strata but he maintained that even
though the strata is separated the roof material is not
necessarily "loose ". Kirby pointed out that the ore in the
Amax mine is composed of potassium chloride {potash) and
sodium chloride and is " quite elastic" . The mine r oof can
therefore bend before breaking . Kirby testified that it is
neve rtheless the practice at the Amax mine to roof bolt all
drumrny areas as "insurance" against roof falls.
According to Scresh Desai , the super intendant for production and safety at the Amax mine , a drummy sound indicates
either loose top or lessened adhesion between strata because
of the presence of carnallite or mud seams.l; Desai conceded that carnallite or mud seams in the roof strata presented the same hazard of roof falls as a physicial separation in the strata. According to Desai, it is the practice
at the Amax Mine to cut areas of carnallite out of the top in
order to control it.
MSHA Inspector Clyde Bays testified that roof bolting
is not specifically required by the regulations governing
potash mining and roof bolting is not practiced in many areas
of such mines. Bays observed however that it is the standard
practice in the industry for miners to continuously check
roof conditions by the sounding method, and where a drummy
sound is detected, to insert supportive bolts into the drummy
sounding roof area. Bays further noted that while not all
drummy sounding roof areas constitute a hazard there is no
other practical way to determine the soundness of roof conditions in the absence of visible fractures.
It has accordingly been the industry practice and MSHA's requirement that
l;carnallite is described as a massive, granular, greasy,
milk-white, soluble, hydrous, magnesium-potassium chloride.
A Dictionary of Mining, Mineral, and Related Terms, U. S.
Department of Interior Bureau of Mines.

·448

in the absence of visible fractures all drummy sounding areas
be supported .
Where visible fractures are present in the drurnmy
sounding area Bays said that further tests can be performed
to determine whether the roof is hazardous .
If a scaling bar
cannot bring down the suspect area then, according to Bays ,
the roof is safe and no citation will b e issued .
While Amax argues that the presence a lone of drummy
sounding roof or back is not sufficient to support a f inding
that the roof i s " loose~ wit hin the mean i ng of the ci ted
standard t hat argument is ~ o t suppor t ed by its own e v i dence o
Even adopting i ts def i n i t i on of ~aloos e ~ as 1'no t rigidly
fastened or secur e ly attached ~ or as 6 loos e ly cemen ted • • •
material" i t is clear that the violat i ons h ave been p r oven as
charged . The testimony of Amax witness Scresh Desai is a l one
sufficient to support the violat i ons wi t hin t hose def i n i t i ons .
Desai testified that a drummy sounding roof i s evid ence of
either a physical separation i n r oof strata or l oosened a dhe sion between the strata because of the presence of carnall ite
or mud seams. See Secretary v . Contract Mining Company r 6
FMSHRC 2315 (1984) .
Secretary v . Magma Copper Compan y~ 3 FMSHRC 3 45 (19 8!. _,
cited by Amax is inap pos i te. In that case e vidence exi s ted
that the cited wall was not in fact hollow sounding .
In add ition, it is not known whether the physical characteristics of
the mine wall there at issue were in any way similar to the
roof conditions in the potash mine here at issue .
While Amax also attempts in its posthearing brief to
reinstate a claim that the cited standard is unenforceably
vague, that claim was clearly waived at hearing (T . 44) .
Moreover Respondent's own proffered definition of the term
"loose" was applied in this case and it acknowledged that it
was standard practice at the Amax mine to roof bolt drummy
sounding areas as "insurance" . This evidence corroborates
the testimony of Inspector Bays that roof bolting drummy
areas is and was at relevant times the accepted and standard
practice of the potash mining industry . Thus in any event
the standard has been interpreted in light of the "reasonably
prudent person test" and can not be considered unconstitu tionally vague . Secretary v. u.s. Steel Corporation , 5
FMSHRC 3 (1983).
I have also examined the studies conducted at the Amax
mine to detect ground movement in alleged drummy areas ~
Essentially no movement was detected in any of the tested
areas over nearly a four month period .
However MSHA was
apparently not asked to participate in or observe the studies
and had no input as to the location of the test sites . The

449

location of the sites is of course critical to the val idity
and reliability of any such tests . In any event, even
assuming the sampled roof showed no movement over the testing
period that fact does not in itself negate the seriousness of
the separate and distinct conditions cited as hazardous in
this case. Indeed Inspector Bays conceded that he could not
predict when the c i ted areas would fall , if ever . He based
his assessment of the hazard on his experience with drum.rny
roof and the history of previous roof falls.
Violations are "significant and substantial" i1g (1)
there is an underlying violation o f a mandatory s afety
standard, {2) there is a disc~ete safe·ty hazard ~ ( 3 ; '~h~:.·e i s
a reasonable l i kelihood that t he hazard cont~ibu~ ed to wi!l
result i n injury f anci (4) there i s a r easonable l~ ~e li G ood
that the injury in q uest ion will be of a r e asonably serious
nature. Secretary v. Mathies Coal COI!!f?any, 6 F'MSHRC l (1 98<} j"
In this regard each of the cited conditions must be considered separately . With respect ~o Citation Number 22 35657
I do net find the evidence to be sufficient to estab l is ~ e
"signi fic ant and substantial" violation. According to
Inspector Bays the cited area had already been roof Dolt ed
and no effor~ was made to bar down the fractured area b efo r e
additional roof bolts were i nserted . ConsiGtent wi t h Bavs =
own testimony t hat th !. s drummy sound:Lng area w(.:n;;J..j ;;>zesen·i:: rH.:
hazard i f it could not be barred down , the gravity o f thi s
violat ion cannot be properJ.y evaluated. Additional uncer~
tainty exists from the testimony of bot.h Kirby and Bays that
drummy sounds may continue to emanate from areas such as this
that have already been roof bolted. Under the circumstances
I can attribu te but little negligence to the operator for
this violation .
Citation Number 2235659 involved t\'JO drum.my roof areas
each 8 to 10 feet in diameter . Foreman Young conceded that
the areas were drumrny and that the day shift had been working
under the area . Indeed, the continuous miner was still in
the cited entry at that time. Under the circumstances I find
that fatal roof falls were reasonably likelyo The violation
was accordingly "significant and substantial". In light of
Young's admissions the violation must also be attributed to
operator negligence.
Citation Number 2235660 involved a drurruny roof area 10
to 12 feet in diameter. There was no roof support in an area
that was a lso in the d irect path of shuttle cars trave l ing to
and from the dumping location. There was accordingly a
reasonable likelihood of serious or fatal injuries from roof
falls. The violation was "significant and substantial". It
may also reasonably be inferred from the failure of the
operator to have detected these condit ions during required
examinations, that the violation was caused by its
negligence.

In determining the amount of penalties in this proceeding I have also considered that the mine operator is
large in size and has a significant history of violations of
the standard at 30 C . F . R. § 57 . 3- 22, the standard found
violated in three of the citations herein. There is no
dispute that the violations were abated promptly .
At hear ing the Secretary moved t o vacate Citation
Number 2235658 and moved to settle Citation Numbers 2235655
and 2235656. Sufficient evidence was presented at hearing to
support the motions and they were granted .
'
ORDER

The Amax Chemical Corporation is hereby ordered to pay
the following civil penalities within 30 days of the d ate of
this decision :
Citation Number

Amount

2235655
2235656
2235657
2235658
2235659
2235660

$ 20
20
50

(vacated)
30 0
300
$690

Distribution :
Jack F. Ostrander, Esq., Office of the Solicitor, u. s. Department of Labor, 555 Griffin Square, Suite 501, Dallas, TX
75202
(Certified Mail)
Charles c . High, Jr. , Esq. Kemp, Smith, Duncan & Hammond,
P . O. Box Drawer 2800, El Paso, TX 79999- 2800
(Certified
Mail)
James L. Dow, Esq., Dow, Feezer & W1.'ll1.'amS 1 p • A • I 207 w•
McKay, P.O. Box 128, Carlsbad, NM 88221-0128
(Certified
Mail)
rbg

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRr~TION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No . LAKE 84-99
A. C. No. 11- 01845-03552
Zeigler No . 5 Mine

v.
ZEIGLER COAL COMPANY ,
Respondent
DECISION
Appearances:

Rafael Alvarez, Esq., Office of the Sol icitor ,
u. s. Department of Labor : Chicago , I l l i nois 7
for Petitioner ;
J. Halbert Woods, Esq ., Des Plaines , I l linois ~
for Respondent.

Before:

Judge Steffey

Pursuant to a notice of hearing dated November 28 , 1984,
a hearing in the above-entitled proceeding was held on January 15 and 16, 1985 , in Champaign, Illinois, under section
105 (d), 30 u.s.c. § 815(d), of the Federal Mine Safety and
Health Act of 1977.
The proposal for ass·e ssment of civil penalty filed by the
Secretary of Labor sought to have civil penalties assessed for
a total of six alleged violations of the mandatory health and
safety standards . The parties presented evidence with respect
to four of the alleged vio lations and entered into a settlement agreement with respect to two of the alleged violations.
After the parties had completed their presentations of evi dence with respect to each of the contested violations, I
rendered a bench decision, the substance of which is hereinafter given along with the citations to the record where each
bench decision appears in the transcript .
The parties' settlement agreement is discussed under a separate heading at the
end of the decision .
CONTESTED ISSUES
Citation No. 2323513 7/25/84

§

75 . 503 (Exhibit 1) (Tr . 89-102)

The first alleged violation in this proceeding was contained in Citation No. 2323513 which alleges a violation of
30 C.F . R. § 75.503 in that a 14 BU loading machine, Serial No.
9208, Approval No. 2Fl532A-8, contained four openings in

·452

excess of .007 inch between the box and the light switch involving a step flange.
There was also one opening in excess of
. 004 inch between the cover and the main controller panel. Additionally, there was an opening in excess of .004 inch between
the cover and the main controller panel.
I shall make some findings of fact pertaining to this vio lation.
1.
The loading machine cited was situated about five
crosscuts from the working face at the time the inspector
checked its permissibility. The loading machine was parked
and was not being used actively at the time the ins pec t or made
his examination .
The inspector nev~rtheless cited the excessive openings in the various compar·tments as being ir1 violation of the permissibility st~ndard because it was his belief
from talking- to the miners on this section that ·the l oading
machine is from time to time t aken inby the last open crosscut
to be used for cleanup purposes , even though he agreed that
· Ze igler had converted from conventional mining to continuous
mining for the entire No . 5 Mine and that the ioading machine
was therefore not used in the normal mining process.
2. The Secretary of Labor 1 s counsel presented as a w:.;.:c~
nessu in addition to the inspecto r ? the UMWA safety committeeQ·
man who traveled with the inspector in this instance., and ne
also testified that he is aware of having seen l oade rs used
inby the last open crosscut for cleanup purposes even though
he also testified that Zeigler has converted to a continuous
mining machine operation. The safety committeeman testified
that he had not 9ersonally seen the loader cited in this particular instance being at the face of the No. 4 Unit which is
here involved, but he was of the opinion, based on statements
made by other miners, that the loading machines on all units
were taken to the face from time to time and used for cleanup purposes .
3.
Respondent presented as a witness the company's
safety inspector who traveled with the MSHA inspector in this
instance, and Zeigler's witness testified that the No. 2 Unit,
and the No . 3 Unit to a certain extent, were wet and frequently have a fireclay bottom which makes the surface of the mine
floor very unstable so that the loading machines on those units
have to be taken to the face and used for the purpose of cleaning up mud so that the mine floor can be made stable enough
for the continuous mining machine to be taken from one place
to another.
Zeigler's witness, however, was not absolutely
sure that the loader on the No. 4 Unit here involved is never
taken to the face.
It was his opinion as a section foreman,
which position he holds at the present time, that it would be
unwise to bring the loading machine to the face simply for

.·453

ordinary cleanup purposes for the simple reason that it creates
hazards in the form of trailing cables and general confusion
and additional personnel at the face, so that in his opinion,
if the unitrak (or scoop), which is normally used to clean up
at the face, should be unavailable or inoperative on a given
occasion, he would propose bringing in another uni·trak rather
than bringing up the loading machine for cleanup purposes.
I believe that those findings cover the essential points
made by the two parties. The section which is alleged to have
been violated, namely, section 75.503, provides that ·"[t]he
operator of each coal mine shall maintain in permissible condition all electric face equipment required by §§ 75 . 5 0 0 ,
75.501, 75.504 to be permissible which is taken into o r u sed
inby the last open crosscut of any such mine . 9z
Counsel for Zeigler concentrated his argument on the iast
portion of that section which provides that equipment has t.c
be kept permissible "which is taken into or used inby ~ ne i as t
open crosscut of any such mine ." The operator : s counsel states
that inasmuch as Zeigler had converted from conventional mining
equipment to continuous mining equipment, that the loading
machines on each section or unit were there simply because they
v;ere left over from the conventional type o f mining ~ and ·tha·;::.
while they were kept in compliance with section 7 5 172 5 .'
which only requires that equipment be kept in a. mechanic a l ly
safe operating condition, that they were not kept for the purpose of being used in the production of coal. He therefore
claimed that since the loaders were not going to be used inby
the last open crosscut, they did not have to be maintained in
a permissible condition in compliance with section 75.503 .
He also stressed the fact that the testimony of no witness
really shows that he personally had seen the loading machine
involved in this instance being used inby the last open crosscut on the No. 4 Unit.
o

The Secretary's counsel has· emphasized, on the other
hand, that there is testimony by all three witnesses to the
effect that loading machines are used in some instances inby
the last open crosscut in the No. · 5 M·ine and that there is
no certainty that the loading machine on the No. 4 Unit would
never be used inby the last open crosscut.
It followsp of
course, that if the loading machine is used inby the last open
crosscut, it would have to comply with section 75.503 by being
permissible.
·
I have noted that respondent's witness endeavored to
sustain Zeigler's position with respect to the fact that these
loading machines were kept in a safe operating condition in
the sense that they were inspected and made safe from the
standpoint of having good brakes and not having some defective mechanical piece that might create a hazard, but he tried

·454

to distinguish that kind of safety from the electrical type of
safety which is associated with the possibility of creating a
spark in the mine atmosphere at a time when there is methane
present in an explosive concentration.
It is possible to make
that distinction; that is, that a piece of mining equipment
not taken inby the last open crosscut merely has to be in safe
operating condition mechanically, but does not have to be maintained in a fine state of repair with respect to joints and
openings where electrical sparks may cause an explosion in
the presence of methane.
The Commission has decided a case very similar to t his
one .
In Solar Fuel Co., 3 FI-1SHRC 1384 (1981) , the Commission.
reversed an adm~n~strative law judge 1 s decision because he had
vacated two citations alleging violations of section 75.503
based on findings that a continuous mining machine and a roofbolting machine were outby the last open crosscut . The facts
showed that the equipment was outby the la st open crosscut
when the citations were written , but mining had been done on
· the day the citations were written. The administrative law
judge had interpreted section 75.50 3 to require that equipment
actually be taken inby or used inby the last open crosscut .
The Commission said that the judge had used the past tense ,
whereas the regulations are couched in terms of the present
tense. The Commission said that all Jchat needs to be shm·m
is the intention of taking equipment inby the last open crosscut. The Commission said that the emphasis is not on where
the equipment is located at the time of the inspection, but
whether the equipment will be taken inby the last open crosscut.
The Commission further noted that the purpose of permissibility standards is to assure that equipment will not cause
a mine explosion or a fire.
The Commission said that section
75.503 applies not only to equipment taken inby the last open
crosscut when inspected but also to equipment which is intended to be or is habitually taken or used inby the last
open crosscut even if the inspection actually occurs outby
the last open crosscut.
The Commission also held in u.S. Steel Mining Co., Inc .,
6 FMSHRC 1866 (1984), that four bolts miss~ng in attachment of
a lens in a headlight assembly was a significant and substantial violation even though at the time the violation was cited ,
there was an indication that there was adequate ventilation
and no methane was present in explosive quantities. Also the
Commission in that case noted that u. S. Steel had failed to
present any evidence in support of its argument that methane
in a headlight had never caused an explosion.
I believe that the Solar case decided by the Commission
could be used in support of Zeigler's argument in this case
because in that instance it appears that the evidence supported the argument that those pieces of equipment were from

·455

time to time, and certainly were intended to be, used inby the
last open crosscut, whereas in this instance, the testimony
fairly well supports the conclusion that this particular loading machine would not be taken inby the last open crosscut.
Other portions of the Commission's decision in the Solar
Fuel case, however, emphasize that the purpose of the standard
is to assure that equipment will not cause a fire or explosion,
and I believe that one could also conclude from the testimony
that there is at least a possibility that a section foreman,
in his desire to clean up coal, even on the No . 4 Un it, might
take the loading machine inby the last open crosscut and use
it.
If Zeigler ' s personnel are only inspecting that loading
machine for the purpose of making sure that H: is mechanically
safe, and if the section foreman should not be aware of tha·t
fact, there is a possibility that he might have that piece of
equipment taken to the face and used without having his electrician check the permissibility just prior to taking it inby
the last open crosscut. Therefore, I think that the intention
of the regulation is that if there is a piece of equipment on
the section , which on some units is taken inby the last open
crosscut, and which in some possible situation prevailing in
the No. 4 Unit , could be taken inby the last open crosscut
and used, I think that it ought to be maintained in permissi ble condition under section 75.503 .
Consequently, I find that
a violation of section 75.503 occurred.
Having found that a violation occurred, I am required
to assess a civil penalty under the six criteria.
The parties
have stipulated to some facts which enable me to deal with
some criteria.
First of all, as to the size of the operator's business,
i t has been stipulated that the No. 5 Mine produces about
303,000 tons of coal per year and that Zeigler produces at
all of its mines approximately 1,625,000 tons of coal per
year. Those production figures s:uppQrt a finding that Zeigler
is a large operator and that penalties should be in an upper
range of magnitude to the extent that they are determined under the criterion of the size of respondent's business.
As to the criterion of whether the payment of penalties
would cause the company to discontinue in business, the parties have stipulated that payment of penalties would not
cause Zeigler to discontinue in business. Therefore , no penalty determined under the other criteria needs to be reduced
under the criterion that payment of penalties would cause
the operator to experience adverse economic hardship.

406

The next criterion is whether the operator demonstrated
a good- faith effort to achieve rapid compliance once the violation had been cited. The facts show that the inspector
issued the citation at 10:00 a . m. and he provided that the
violation should be corrected by 10:00 p.m. He wrote an ac tion to terminate at 8 : 00 p.m. finding that the permissibi l ity
standard had been complied with. Consequently , Zeigler showed
a good- faith effort to demonstrate rapid compliance because it
corrected the violation before the time given by the inspector
had expired. Therefore, no portion of the penalty should be
assessed under that criterion.
The Secretary's attorney presented as Exhibit 9 a list of
previous violations which have occurred during the last 24
months at No. 5 Mine, and that exhibit shows that there have
been 31 previous violations of section 75.503. Unfortunately,
many of them were just immediately prior to the occurrence of
the violation here involved. There were two violations on
July 24, 1984, which ~as the day before the one cited in ~his
instance, that is, July 25 , 1984. There was another one on
July 17, another on July 16, another on July 1 1 , three on
July 10, and two on July 9. There were 10 violations in July
prior to July 25. The legislative history of the Act 1 s . REP .
NO. 95-181, 95th Cong. , lst Sess . 43 (1977) , made the following
comments about hi story of previous violations :
In evaluating the history of the operator~s violations in assessing penalties, it is the intent of
the Committee that repeated violations of the same
standard , particularly within a matter of a few inspections, should result in the substantial increase in the amount of the penalty to be assessed.
Seven or eight violations of the same standard
within a period of only a few months should result ,
under the statutory criteria, in an assessment of
a penalty several times greater than the penalty
assessed for the first such violation . !f
According to Exhibit 9, which lists the previous violations , many of the violations of section 75.503 were classi fied as nonserious and were given single penalty assessments
of $20 each as provided for in 30 C.F.R. § 100 . 4. The ones,
however, that I referred to above as immediately preceding
the one here involved , were considered to be "significant and

1/ Reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE
SAFETY AND HEALTH ACT OF 1977 , at 631 (1978).

.4:vr 7

substantial." 2/ One of those was assessed at $147 and another
one for $98. The first significant and substantial penalty
shown on Exhibit 9 in July was $147, so if the intent of Congress is taken into consideration, I should increase the penalty in this instance by roughly $300 under the criterion of
history of previous violations.
The f i fth criterion is whether the operator was negligent
in bringing about the violation . The inspector was of the
opinion t h at moderate negligence was associated with the violation, but that is a little more severe evaluation than the
evidence , taken as a whole, supports. The Commission held in
Penn Al legh Coal Co", 4 FMSHRC 1224 (1982) : that a judge is
not bound by the inspector's or the witnessesu opinions as to
negligence, but that it is his responsibility to draw legal
conclusions from the evidence considered as a whole . Consequently, if I consider all the f acts showing that Zeigler had
converted to a continuous mining machine operation and did
have the feeling that it could use a loading machine on a
section outby the last open crosscut without maintaining it
in a permissible condition , and apparently it did intend to
use this particular piece of equipment outby the last open
crossc ut, I think that we could consider negligence t o be
zero in this instance because Zeigler did have an intent to
avoid a serious s ituat ion and did think tha~ it was in compli ance with the permissibility section, For that reason , 7- find
that no portion of the penalty should be assessed under the
criterion of negligence.
The final c riterion to be considered is gravity. While
the Commission has indicated that a judge may take into consideration what might have happened if a condition is not
corrected so that a piece of equipment is continued to be
used until a violation does result in injury, I believe in
this instance that that would be somewhat unfair to the operator because there was no intent on the No. 4 Unit to take
this loading machine inby the last open crosscut, and if the
company ' s intention had been carried out so that this machine
was never taken inby the last open crosscut, no one would
have been exposed to a serious hazard. On the other hand, if
this violation had resulted in equipment being used inby the
last open crosscut in a nonpermissible condition, there would,
of course, have been the possibility that methane might exist
in a sufficient concentration to cause an explosion. The
2/ In Consolidation Coal Co., 6 FMSHRC 189 (1984), the Commission held that an inspector may properly designate a violation cited pursuant to section 104(a) of the Act as being "significant and substantial" as that term is used in section 104
(d) (1) of the Act, that is, that the violation is of such
nature that it could significantly and substantially contribute
to the cause and effect of a mine safety and health hazard •

. ·45 8

possibility of occurrence of mine disasters is always something
that each section foreman and each miner has to work in light
of at all times.
For the aforesaid reasons, I find that there was at least
a moderate amount of gravity associated with having a piece of
equipment on the section which was not permissible. Consequently, under the criterion of gravity, a penalty of $100 is reasonable. As I indicated above, a penalty of $300 should be
attributed to the criterion of history of previous violations.
When that amo~nt is added to the penalty of $100 assessed under gravity, a total penalty of $400 should be assessed for
the violation of section 75 . 503 alleged in Citation No. 2323513
dated July 25, 1984 .
Citation No. 2323515 7/25/84 § 75.503 (Exhibit 3) (Tr . 164-170)
The next citation which was contested by the operator in
this proceeding is No , 232351.'5 alleging a violation of section
. 7 5. 5 03 because the shuttle car on the No . tl Unit: was not maintained in a permissible condition.
The specific alleged violation pertained to the headlight on a shuttle car. The lens
was not secured ·to prevent it from coming off the light ~ the
screw retainer was broken 1 and the locking device was not in
proper condition . A lens retain'er cover vvas improperly assembled and lead seals were not p ressed ·to make Jche lens cover
permissible. The pertinent factual circumstances will be set
forth in the following findings:
1. The inspector testified that at the time he carne on
the section to check the permissibility of the shuttle car,
it had been tagged and locked out and was in the process of
being repaired by the mechanic on the section. The inspector
discussed the mechanic~s instructions received from his section foreman and was advised that the mechanic had been asked
to repair a panel on the shuttle car and also a different headlight from the one cited by the inspector. The inspector indicated to the mechanic that he would examine the remaining
portions of the machine to see if it was otherwise within the
provisions of section 75.503 as to permissibility. The mechanic
consented to that arrangement. The inspector continued with
his inspection and cited the violation which has been described
above.
2. The UMWA safety committeeman testified that he heard
the same conversation between the mechanic and the inspector
which has been discussed in finding No. 1 above. He and the
inspector both agreed that the shuttle car and its trailing
cable were warm.
That warmth indicated to them that the
shuttle car had been used shortly before the repairs had been
instituted.

·4G9

3.
Zeigler's safety director, who also accompanied the
inspector, testified that he had been told by the section
foreman that the mechanic was working on the shuttle car to
repair some permissibility violations or problems which had
been discovered on the midnight to eight shift. The informa-·
tion that those repairs needed to be done had been referred
to the section foreman on the day shift. The day shift foreman had instructed the mechanic to make the repairs which had
been discovered on the midnight shift , and the mechanic was
told to c heck the entire shuttle car for permissibility before it was put back into service.
4. The inspector was recalled for examination , and he
furthe r explained that he had had a conversation with the
section foreman after he came out of the mine .
Tha·t conversation occurred on the surface of the mine , and at that time
the section foreman indicated to the inspector ~h a t he did
not think the inspector should h ave cited t he p ermissibility
violation pertaining to the other head l igh t because the section foreman said , "He were going ·to correct all. 'c hose thing s
before the equipment was put back into service .R The inspector said that he had not been so advised by the mechanic.
Therefore, he felt that he was justified in having cited the
violation. The inspector indicated , howevert that i f the
mechanic had ·told him t.ha'c he intended ·to i nspect ·che enti re
shuttle car for permissibility before i t was pu t back i n service, he would have asked the mechanic ·to advise him when he
had finished working on the machine and had finished checking
it for permissibility, and that the inspector would then have
made his examination for permissibility.
5. One other point that the inspector made during his
initial testimony was that he had examined the shuttle car
for permissibility while it was being worked on by the mechanic so that his inspection would not cause the machine to
be out of operation for an additional period of time over and
above the time that it was out for the repairs and examination by the mechanic. The inspector thought that his inspection performed while the shuttle car was out of service was
to Zeigler ' s benefit because it enabled the shuttle car to be
placed into productive operation for a greater period of time
than it could otherwise have been used.
I think those are the pertinent facts that were developed.
Zeigler's attorney has moved .that the citation be vacated because the company was doing all it could to see that its
equipment was permissible at the time the inspector made his
examination of the shuttle car, that the equipment was tagged
and locked out and was not being used, and that he does not
think that the inspector should be permitted to examine a
piece of equipment and cite violations at the same time the

·4UO

company is in the process of correcting existing violations of
which the company had knowledge .
The Secretary ' s attorney has argued, on the other hand ,
that Zeigler's representative did not make clear to the inspector tha t the mechanic ·had been g iven instructions to check
other aspects of permissibility before the machine was put
back into operation, and that Zeigler ' s failure to bring those
matters to the inspector ' s attent ion was the cause of the inspector ' s going ahead with the examination at the time he performed it.
Counsel for Zeigler cited a case d ecided by t he f ormer
Board of Mine Operations Appeals in Zeig ler Coal Co .~ 3 I BMA
366 (1974) P in which the Board held that i nspection o f equipment should not be performed when equi pmen t is b e i n g repa ired
and i s out o f service .
The Boa r d made a s imilar r ulinq in
Plateau Mining Co. , 2 IBMA 303 (1973) ; ~.nd 2 so f a r as I Jt.:now ~
the CommlSSlOn has not o verru led &ith e r of t h o se Board deci · sions .
It seems to me in this i nstance that there i s enough
equivocation in the testimony to support Zeig le r ' s a rgument .
The company 9 s witness seems to b e cer tain o f -:-.he ::·act. t .ha -;:
the section foreman had i nstructed the mech an ic t o comp l e ·te
not only the repairs tha t he was p erforming b u t to p erf orm a
complete permissibility check before the equipment was pu·t
back into service.
It is also a fact that the inspector
agreed that the section foreman had talked to him after the
shift had ended and had expressed a belief that the inspector
should not have written this particular citation because it
was the section foreman ' s intention to have all the permissibility matters corrected on the machine before it was put back
into service.
The inspector thought he had a basis for having gone
ahead with the inspection in this instance, but this type of
confusion and doubt could, of course , as the inspector indicated, have been eliminated simply by the inspector's telling
the mechanic and the section foreman to let him know when
they had stopped working on the equipment and not to use it
until he could have a chance to chec k i t because he had come
there on that day to make a permissibility examination.
I think in this instance that there was ample indication
that the shuttle car would not be used until all of the permissibility aspects of i t had been examined. The facts support Zeigler's argument that this particular inspection
should not have been made until the company had been afforded
an opportunity to finish its work on the equipment. Therefore,
the order accompanying my decision will vacate Citation No.
2323515.

·461

Citation No. 2323517 7/25/84 § 75.316

(Exhibit 5) (Tr. 238-249)

The next contested violation in this proceeding is a violation of section 75 . 316 alleged in Citation No. 2323517. The
citation states that Zeigler had not complied with its approved
ventilation and dust control plan because on July 27 , 1984 ,
only 23 of the water sprays on the continuous mining machine
were operational when the inspector made his examination of
that machine . Paragraph 1 on page three of the Ventilation
Plan, which is Exhibit 7 in this proceeding , provides that 25
of the 34 sprays on the machine are to be operational . The
facts pertaining to the alleged violation will be set forth
as follows:
1. The inspector testified that the failur e to h ave t he
required 25 sprays operational indicated a h i gh degree of neg l igence because the company provided in its own ventilation
plan that it would have 25 of the~ operational , but he f o u n d
only 23 to be operational .
He pointed out that ther e a re 3 4
sprays on the machine and that the difference b etween the 2 3
that were operating and the 34 that were on the machine ind i cates a disparity of 11 that were not operating . He also was
of the opinion that failure to have the 25 operational was a
significant and substantial violation because , over a long
period of time , persons who were exposed to exce ssive r espira.-·
ble dust may contract pneumoconiosis .
2. The UMWA committeeman , who was with the inspector ,
supported the inspector's belief that the violation was significant because the sprays should have been operational in
his opinion .
He a l so emphasized the fact that one of the
hoses to the water sprays was broken , and that that would
have a tendency to lower the pressure to all of the sprays
if the hose supplying pressure to any one of them was broken .
3 . Respondent ' s safety director , who was accompanying
the inspector, did not see the co n tinuous mining machine in
operation, and , therefore , could not state whether he agreed
with the inspector ' s belief that there was an excessive amount of dust in the atmosphere at the time the machine was
being used. He did , however, present as exhibits some analyses of respirable dust samples , and those all indicated that
Zeigler had been successful at keeping respirable dust on
the No . 4 Unit down to about 1 milligram instead of the 2
milligrams that are permitted, and for that reason , he did
not think that the failure to have 25 sprays operable, as
opposed to 23 , was a serious violation . There is no testimony to show that there was any less dust in the atmosphere
after the violation was corrected than there was before the
violation was corrected.

·462

4.
Zeigler presented as a witness its Director of Safety
and Health , and his backcrround shows that he had been involved
in some of the early res~arch in trying to develop methods
that would alleviate the concentration of respirable dust at
the working face of coal mines . His experience in that endeavor was obtained while he worked for MSHA or its predecessor , and he had found through his experimentations that the
main way to alleviate respirable dust at the working face was
the installation of a scrubbing system. That system was de scribed by both of respondent's witnesses as a sort o f vacuum
sweeper attachment which pulls air from the front ·of the continuous mining machine, and, in doing so, brings the dust
associated with the cutting of the coal into contact with
large amounts of water so that the dust is converted , along
with the coal, into a slurry and thereby reduces dust to such
an extent that the original scrubbers had an efficiency of
about 73 percent even when there were as few as 13 or 14 water
sprays in operation.
5.
Zeigler 1 s Director of Safety and Health testified
further that the system being used in the No. 5 Mine is referred to in the Ventilation and Control P lan as a Joy flooded
bed type which is much more advanced and effective than the
prototype which he had used in the early research days of alleviating respirable dust .
The Joy flooded bed type of scrubber has an efficiency of 95 percent or greater . He stated
that he had written the respirable dust plan which is in the
record as Exhibit 7, and that he had used a very conservative
number of having 25 of the 34 sprays on the continuous mining
machine in an operable condition to allow for the fact that
some of the sprays might not be operational on a given day,
and that in his opinion, unless the sprays were reduced to 14
or less, would there be any likelihood that the respirable
dust on the No . 4 Unit would be in excess of the 2 milligrams
required by the mandatory health and safety standards.
I believe that those are the primary facts that were
developed in support and against the alleged violation in
this instance . The respondent ' s attorney has not denied that
there were only 23 of the required 25 sprays operable on the
continuous mining machine at the time the citation was written,
and since the plan does provide for 25 sprays to be operational, I naturally must conclude that a violation of section
75 . 316 occurred.
Zeigler's counsel does not contest the occurrence of the
violation, but directs his argument to the fact that the in spector considered the violation to be " significant and substantial, " and he argues ·that the citation should be modified
to show deletion of the designation of "significant and substantial." As noted in footnote 2 above, the Commission held

·483

in the Consolidation case that an inspector may properly
designate a violation cited pursuant to section 104(a) of the
Act as being "significant and substantial" as that term is
used in section 104(d) (1) of the Act, specifically, that the
violation is of such nature that it could significantly and
substantially contribute to the cause and effect of a mine
safety or health hazard. The Commission, as Zeigler's counsel
pointed out in his argument, defined the term "significant and
substantial" in its National Gypsum case, 3 FMSHRC 822 (1981).
The Commission has enlarged upon its definition of "significant and substantial" in the Mathies Coal Co. casef 6
FMSHRC 1 (1984), and also in the Consolidation case which I
just cited at 6 FMSHRC 189. In those two cases , the Commission evaluated the definition in four steps. One is whether
a violation occurred .
Two is whether the violation contributed a measure of danger to a discrete safety hazard . Three
is whether there is a reasonable likelihood that the hazard
contributed to will result in injury .
Four is whether there
is a reasonable likelihood that the injury in question will be
of a reasonably serious nature.
Counsel for Zeigler has argued that his testimony shows
that there had not been a citation of the No. 4 Unit for a
violation of the respirable dust standards for an extensive
period of time prior to the citing of this violation as to
the number of sprays in operation on the machine, and that the
testimony of the safety director at Zeigler's mine shows that
there was no likelihood that anyone would have been exposed
to excessive respirable dust as a result of the violation here
involved.
The Secretary's counsel has argued that there is no contradiction of the inspector ' s testimony or of the safety committeeman's testimony that the required 25 water sprays were
inoperative , but he stressed primarily the negligence of the
operator in failing to have the water sprays operational .
I have already indicated that a violation occurred, and
that, of course , takes care of the first step required to consider the designation of "significant and substantial" in the
citation. The second step is whether the violation contributed a measure of danger to a discrete safety hazard. There
is no doubt that the testimony shows that there may be an increase in respirable dust when water sprays are not working
properly on a continuous mining machine , and there is also a
possibility that an explosion may occur if all of the factors
required for an explosion are in existence . The testimony
emphasized the possibility of igniting methane. Consequently,
there is evidence to support a finding that a discrete safety
hazard is involved which is either excessive respirable dust
or the possibility of an explosion of methane.

·464

The third requirement in the significant and substantial
evaluation is whether there is a reasonable likelihood that
the hazard contribut ed to will result in injury .
On that particular requirement, it appears to me that Zeigler introduced
evidence to support a finding that there was not a reasonable
likelihood that the hazar d in this instance would have resulted
in injury.
Zeigler presented as Exhibit C information showing
that there had been no citation for a violation for a dust
standard for about a year prior to this citation.
Zeigler's safety director also testified at l erigth that
the primary method for controlling respirable dust, as well
as dust in any form at the working face , was through the
scrubber which had been installed on the continuous mining
machine . The dust-control plan itself shows that t h e p rima ry
means of dust control will be the scrubbing device attached
t o the continuous mining machine , and the manager o f saf e ty
al so stressed that in the basic research done to dev elo p
these scrubbers , even 1 4 water sprays were sufficient t o kee p
the r espirable dust below a concentration o f 2 milli g rams .
The inspector did not address the efficiency of the scrubber
versus the water sprays. Therefore v I find that the fact
that the company had operational only 23 s p rays out of t he
25 t hat were required was not such a v iolation that i t . cou l d
r easonably be expected that ·the inoperable condition o f ·t wo
lATater spray s ~11ou l d have been likel y to have caused an i nj ury .
Finally, the fourth consideration is whether there is a
reasonable likelihood that the injury in question will be of
a reasonably serious nature. Here again, the evidence presentedr when it is examined in its entirety , will show that
there was not likely to be a reasonably serious injury in
this instance. There was certainly enough water from 23
operable sprays, taken in conjunction with the scrubbers, to
keep respirable dust down and also to counteract the likelihood of ignition as a result of methane being present at the
face .
Consequently, I believe that Zeigler's counsel has successfully argued that the citation should be modified to
eliminate the designation of "significant and substantial . "
A violation of section 75.316 has been shown to exist , however, and a civil penalty must be assessed (Tazco , Inc . , 3
FMSHRC 1895 (1981)) .
The Secretary ' s counsel has indicated
that MSHA proposed a penalty of $206 in this instance , and
that he believes that there is enough negligence and enough
gravity associated with the violation to merit a penalty of
no less than $206, whereas Zeigler ' s counsel has indicated
that if the designation of " significant and substantial" is
eliminated from the citation, that a penalty of $20 would
be appropriate .

-4B5

In the previous discussion of assessing the penalty for
the violation of section 75.503 in Citation No. 2323513, I
noted that respondent is a large operator, that payment of
penalties would not cause it to discontinue in business , and
those findings are, of course , applicable to the existing
assessment .
There was a good-faith effort shown again in
this instance to achieve rapid compliance because the inspector gave respondent until 4 : 00p.m. to abate the violation ,
and he wrote an action to terminate at that same time, 4 : 00
p.m., showing that the water sprays h ad been cleaned and were
operative and the broken hose had been replaced. Therefore
no portion of the penalty should be assess e d under the c r iterion of good faith .
Insofar as the history of previous violations is con =
cerned , Exhibit 9 shows that the company has o nly b een ci·ted
for four previous violations of section 7 5~ 3 1 6 , a n d a l l o f
those occurred a l most a year prior to t h e vi o l a tion i nvo lved
i n this instance . J.'.s t he matter o f f a ct , ·t he c omp a ny shov.Js
. a very marked improvement in i ts reso l v e to a vo id· a violat i o n
of section 75.316. Therefore, I sha l l assess n o penalty under the criterion of history of previ ous .vio l ations because
of the company ' s obvi ous effort made t o elimi n a t e v io l a t ions
o f the respirable d ust s tandards and o f its ventilation and
dust contro l plan .
The f ifth criterion to be considered is negligence , and
on that, the Secretary has made his primary argument in this
instance by pointing out that Zeigler had already given itself a leeway from the 34 sprays that are on the machine down
to the 25 that are required to be operational under its plan ,
and the Secretary's counsel has argued that it shows a high
degree of negligence for the company to fail to keep at least
those 25 in operation at all times. When it is considered
that Zeigler's own witnesses indicated that an examination
of the machine occurs during the actual working cycle and
that the water sprays are inspected during each shift, it
does seem to me that i t is a high degree of negligence to
fail to find that these sprays are operational , and the section foreman and the continuous mining machine operator know
that they have this leeway between 34 and 25, and it seems
that that is a pretty liberal provision that they can have
that few operative out of the 34. Consequently, I agree
with the Secretary's attorney that this was a violation involving a considerable amount of negligence .
Therefore, under the criterion of negligence, I believe that a penalty of
$200 would be appropriate.
The final criterion to be considered is gravity . Under
that criterion, I have indicated that most of the testimony
was directed to either showing that the violation was serious
or to showing that it was not serious. I have already found

·466

that it was not a serious violation, and I have given the rea sons for finding it to be nonserious. ·I believe that a penalty
of $10 would be appropriate under the criterion of gravity.
Consequently , when I issue the decision in this case, Zeigler
will be directed to pay a penalty of $210 for the violation of
section 75.316 alleged in Citation No . 2323517.
Citation No. 2323518 7/26/84 § 75.1105 (Exhibit 6) (Tr. 391-406)
The final contested violation in this proceeding is Citation No. 2323518 issued July 26, 1984, alleging a violation of
section 75.1105 because the battery barn or charging station
in the No. 5 Mine was not vented to the return air course \'lhen
tested by the inspector with a smoke tube . A considerable
amount of testimony was introduced by both parties, and the
evidence will be summarized in the following paragraphs .
L
The inspector who wrote the citation traveled t:o the
battery barn shown in Exhibit D, and he was accompanied by the
UMWA safety commi·tteeman. The inspector proceeded into ·the
battery station and noted that there were battery- charging
receptacles throughout the battery station which extended about 160 feet from east to wes t .
He noted that on the extreme
east end of the station, there was a blowing fan and an e xhaust fanr the blowing fan being on the south side and the
exhaust fan on the north p and he felt that the ventilation was
adequate in that area.
He proceeded to the west side of the
station and noted that there was a 2- inch tube allowing air to
leave the battery station at approximately the center of the
station . He then proceeded into the west end of the station
and was impressed by the fact that he could detect no movement of air in that area.
The inspector then released some
smoke and found that the smoke was suspended in the atmosphere
without showing any visible movement in any direction.
Using
the aspirator with a smoke tube, he checked the area of the
west end in several locations and could detect no air movement
at all.
He was accompanied also by Zeigler's electrician who
made no comment as to the adequacy of the use of the smoke tube.
The inspector thereafter issued the citation described above
alleging the violation of section· 75:1105.
2. The inspector considered the violation to be the result of a high degree of negligence because in his opinion the
company was aware of the requirements that the battery station
be ventilated because fans had been placed in the east end and
some aperture had been made about the center of the station.
He believed that the entire battery station should have been
ventilated as well as the east end appeared to be. He also
considered the violation to be sufficient to cause an injury
because he believed that hydrogen could accumulate in the
battery-charging station. He stated that hydrogen is released

:·467

when batteries are charged and he feared that there might be
an explosion from accumulation of hydrogen from the possibility
of sparks from electrical equipment which existed in the
battery- charging station.
3.
The inspector wrote approximately 10 other citations
of various violations of the mandatory safety standards in the
station, including the fact that some bare wires were exposed
and the fact that the hoist for raising batteries from equipment was resting on an electrical connector box .
Therefore,
he felt there were electrical hazards in the station ·which
might ignite hydrogen if it should happen to exist in sufficient quantity.

4o The company presented as its witness its Manager of
Safety who has had 3 years of experience working for Zeigler 1
and approximately ll years of experience working f or MSHA ,
and who had inspected the Noo 5 Mine many times prior to becorning Zeigler's Manager of Safety . He presented extensive
testimony to the effect that this battery-charging station is
supplied with intake air from a downcast which ?rovides
350,000 cubic feet of air per minute which is split at the
bottom of the mine where the battery-charging station exists .
A volume of 90 , 000 cubic feet per minute is directed into the
vicinity of the battery-charging station while the remaining
quantity of 250,000 cubic feet per minute is directed to the
only working sections in the mine which are located to the
east and north of the area where the battery- charging station
exists .
5.
The Manager of Safety pointed out that while Exhibit
D shows a white area surrounding the battery- charging station,
which normally would indicate neutral air accompanied by a
low velocity, that, for all practical purposes, the area around the entire battery- charging station could be shown in
blue, as the rest of the area around the station is shown,
because he says there was a considerable amount of air passing along the entry which is used as a travelway to the
battery-charging station .
Therefore , he said that there was
an adequate amount of intake air going into the batterycharging station at all times. He also testif~ed that the
area around the battery- charging station is sealed so that
air does not go into inactive areas around the station and
that all the intake air is directed to an upcast or return
away from the battery- charging station and , for that reason,
there is a large amount of air passing through the batterycharging station.
6. The Manager of Safety stressed the fact that the
battery- charging station had been in existence for about 10
years, that it had been inspected at least 75 times during
its existence, and that no inspector had ever found it to be

468

in violation of section 75.1105 because, apparently early in
its existence, it had been required by an inspector to have
the two fans previously described installed in the east end .
As far as he was concerned, that ventilation was all that was
required in addition to the 2-inch aperture which, he thought,
might be slightly larger than 2 inches , and which had been installed about the center of the station at the very initiation
of the station.
In his opinion, there was no possibility that
the failure to have a vent in the west end of the station, as
required by the inspector in this case , could have been a
hazard because he noted that the battery-charging station is
a large area, which is approximately 10 feet high in the east
end and 7 to 8 feet high in the west end o Because of the
station 's spaciousness, he believed that the hydrogen tha t
might accumulate would tend to go to the high side of 1-he
station in the first place.
In the second place , he stated
that hydrogen will not explode unless it is from 4 to 75 percent of the total volume of the atmosphere , and he felt that:
there was no possible l ike l ihood that hydrogen would escape
· from the charging of batteries to such an extent that it could
reach a concentration of explosive quantity in the large area
comprising the battery-charging station. Additionallyr he
believed that since the entire area around the station is
i ntake air being moved at very high veloci t.y , ·that. if any
fire should occur , the fumes and 'coxic fumes , carbon monoxide ,,
and other ha zards fr om a fire would necessarily be d i recte d
to the return because all the air around the entire batterycharging station is going to the return and cannot go to any
working sections because there are no working sections in
that area of the mine.
1

7. The Manager of Safety also was critical of the inspector's smoke-tube test because he said that the inspector
should have gone very close to the stoppings in the west end
to determine whether there was a movement of air because the
stoppings are subjected to so much air pressure from the large
amo.unt of air circulating in the vicinity of the batterycharging station that the stoppings do not keep air from passing through them.
In other words, they are not impervious to
air movement. Therefore , he believed that the fact that the
smoke did not move in the west end when tested by the inspector could not be taken as proof that the west end was not
ventilated sufficiently to comply with section 75.1105 .
The Secretary's counsel presented as his rebuttal
8.
witness the safety committeeman who had accompanied the inspector when he made his smoke~tube test and inspected the
other portions of the battery-charging station. He stated
that the inspector took his smoke-tube test as previously
described, and that he could detect no movement of air whatsoever when the smoke was released. He testified additionally
that after the inspector required an 8- by 16-inch cement

··469

block to be knocked out of the stopping on the north side of
the west end of the battery station , smoke was again released,
and it did not go anywhere.
It remained motionless as before,
until the inspector allowed his light to shine into the opening made by removal of the cement block.
It was then rea l ized
that the wall was constructed of double layers of cement
blocks and that the outer layer of blocks was still intact
and would not allow smoke to pass through the 8- by 16-inch
hole made on the inside of the first layer of blocks.
Therefore, a block was also knocked out of the second layer of
blocks which had been constructed against the first one. A
smoke-tube test was again made, and this time the smoke went
through the 8- by 16-inch hole made by the knocking out of a
block in each of the two layers constituting the wall of the
battery-charging station. The safety committeeman said that
no one had complained about noxious fumes or hydrogen or
hazards in the battery-charging station since it was initially
constructed. He said that early in the station ~ s existence ,
there had been a detection of hydrogen sulfide or noxious
fumes in sufficient amount to cause the miners to request
that something be done.
That problem resulted in the installation of the fans in the east end of the station which have
been described above.
I believe that the above f indings constitute the main
points made by the witnesses . Counsel for Zeigler has moved
that the citation be vacated on the grounds that the batterycharging station was already in compliance with section
75.1105 at the time the inspector made his examination and
required the additional block to be knocked out for ventilation on the west end, and that the regulation does not refer
to any amount of air that has to be provided in a batterycharging station , and also does not provide that more than
one ventilation point has to be supplied for a batterycharging station.
He also stressed the fac t that the station
does get a lot of air , but that it has to be restricted because the Manager of Safety had indicated that the air entering the station can be below freezing and can result in
freezing the batteries and causing problems if an excess amount of air is allowed into the station. Therefore, he believed that the battery- charging station was in compliance
with the regulation and that the inspector unnecessarily re quired an additional ventilation point.
The Secretary's counsel has stressed the facts which I
have given in finding Nos. 1 through 3 above . He believes
that the inspector properly wrote a citation, that the additional ventilation which the inspector required was within
the purview of section 75 . 1105, and that there was a hazard
in the form of a possible explosion from the hydrogen released in the area or from the electrical equipment in the
area.

470

Section 75 . 1105 reads as follows:
Underground transformer stations, batterycharging stations, substations, compressor stations, shops, and permanent pumps shall be housed
in fireproof structures or areas. Air currents
used to ventilate structures or areas enclosing
electrical installations shall be coursed directly
into the return. Other underground structures installed in a coal mine as the Secretary may pro vide shall be of fireproof construction .
Of course, the main thrust of the inspector 1 S citation relates
to the second sentence in the quotation given above, namely:
that "air currents used to ventilate structures or areas enclosing electrical insta l lations shall be coursed directly into
the return." Counsel for both parties agree that while Exhibit D shows only intake air surrounding the battery-charging
station , the intake air from the station is headed for the
return , and , therefore, can be considered to be return air
fo r the purpose of applying section 75. 1105 o
The thrust of Zeigler~s argument as to no violation relates primarily to the fa c t that there were admittedly an exhaust fan and a blowing fan in the east end of the station ~
and those fans and the 2-inch aperture at the center of the
station had been there for perhaps 10 years and no additional
requirements for ventilation have been required.
Zeigler
argues that there is nothing in section 75.1105 to spell out
how much air current is required or how many openings have to
be in a battery-charging station and that there is simply
nothing in section 75.1105 that would support the inspector's
requirement that an additional ventilation opening be made in
the west end.
There is a lot of merit in Zeigler's argument, and I am
hardpressed to disagree with Zeigler, but the Commission in
practically all of its decisions, except possibly the one in
Mathies Coal Co. , 5 FMSHRC 300 (1983), has stressed the fact
that the Act and the regulations should be liberally construed because they have as their purpose the preservation
of life and health of the miners. In the Mathies case, the
Commission said that the judge had erred because he had held
that an elevator was a moving machine part within the meaning of section 75.1722(a) and that that was going a little
too far afield, but in its decisions interpreting the standards , the Commission has stressed that safety should be
given the primary emphasis in interpreting the regulations.
Consequently, I believe that the inspector was within the
purview of this section in his belief that the west end of
the battery- charging station was not sufficiently ventilated
into the return.

·4.'71

The question of whether the inspector's test - tube examination was adequate is sufficiently supported by the testimony
of the inspector and the UMWA safety committeeman to make me
believe that there was not an adequate amount of ventilation
in the west end because the smok e did not move when the first
block was knocked out of the stopping but the smoke did readily go out the hole made in the stopping when the second block
was removed.
I believe that t he fact that the smoke went out
after the hole was made is a good indication that the addi tional ventilation was needed .
Another aspect of the validity of the ins?ector's re quirement of the additional ventilation r e lates to the statement of Zeigler's Manager of Safety to the effect that ai r
entering the center of the b attery -charging station would no t
necessarily be p ulled by those fans in the east end all the
way into that area because he f e lt that there was so much
leakage in the stoppings and so much air pressure on the entire station that air would be pulled out of t h e station
through the stoppings regardless of whether any additional
openings were made.
I be l ieve that on balance, however , that
his belief is rebutted by the fact that smoke did not go out
until the additional opening was made in t he west end . That
fact appears t o show that a doub le lay er in a p ermanen t stopping is more r esistant to the p assag e o f a ir through i t than
the Manager o f Saf ety realiz ed.
Having found that a violation existed, it is necessary
that I assess a civil penalty .
In this decision I have already made findings concerning the criteria of the size of
the company and the fact that penalties would not cause the
company to discontinue in business .
I have made reference
before to Exhibit 9 which lists history of previous viola tions for the No. 5 Mine, and that shows only four previous
violations of section 75.1105 and only one of those violations occurred in July of 1984, and the rest occurred in 1983 .
Consequently, I don't think that there is such an unfavorable
history of previous violations that a very larg e portion of
the penalty should be assessed under that criterion. Consequently , a penalty of $10 will be assessed under history of
previous violations.
·
The inspector gave the company until 10:00 a.m. on the
day the citation was written to abate the violation, and he
wrote an action to terminate on ·the same day at 10 : 00 a . m.
stating that the west end had been ventilated to the return
air course by removing two concrete blocks .
Consequently,
the company demonstrated a good- faith effort to achieve rapid
compliance and no portion of the penalty should be assessed
under that criterion.

The fifth criterion is negligence. The inspector felt
that the company was highly negligent in failing to install
ventilation in the west end because it had done so in the
east end . He believed that management should have realized
that there was not sufficient movement of air in the west
end, and therefore concluded that there was a high degree of
neg l igence.
The findings that I have made above indicate
that Zeigler certainly had reasons for believing that the
battery-charging station was adequately ventilated because
it had put in the two fans I described and another aperture
about the center of the station. The Manager of Safety who
inspected this mine many times as an MSHA inspector believed
that there was a sufficient velocity of air going through
the stoppings to ventilate the west end , and while it appeared to me that that may not be true , the f acts are that
he had a logical basis for his belief , and I have barely
been able to find a violation at all.
Consequently u I believe that the v iolation was the result of no negligence on
the part of the company, and no portion of the penalty should
be assessed under that criterion.
The seriousness of the violation is the final criterion
to be considered. The inspector's testimony about the seriousness of. the violation is offset in large part by t h e
Manager o f Safety ' s beliefs that there was no seriousness
whatsoever and those opposing views have been spelled out i n
the findings above , and it is likely that the violation was
not serious.
The ·only case that I know of in which the Commission has touched upon the possibility of seriousness as
to hydrogen is in the case of Pratt v. River Hurricane Coal
Co ., Inc., 5 FMSHRC 1529 (1983) , in which the Comrn1SS10n
held that a miner was sufficiently worried about his safety
to be supported in his refusal to put out or try to put out
a fire on a scoop ' s battery because he feared that hydrogen
might explode in the battery and throw acid and shrapnel on
him.
Since the inspector did cite some electrical violations,
and there was, as the Manager of Safety agreed, always a
possibility that where there are electrical installations,
there can be a short circuit which could conceivably cause a
fire , and since batteries were present in this station, I
suppose that you ·could have a problem of an exploding battery, but I think for the most part , the violation, as de scribed by the inspector under the conditions that he found,
was only very slightly serious.
I am inclined on the facts
of this case to hold that there was not a reasonably strong
likelihood that an injury would occur or that it would have
been a serious one if anything had occurred because of the
conditions that existed -- the type of ventilation that
existed all around the station and the few people who were
required to stay in the station for any length of time, and
the other factors pertaining to the nonserious nature of the
violation described in finding No .. 6 above .
I believe that

·473

all of the aforementioned factors tend to require a finding
that a very low portion of the penalty be assessed under
gravity. Therefore, I find that a penalty of $25 should be
assessed under the criterion of gravity for a total of $35
for this violation of section 75.1105 .
SETTLE.MENT
The parties entered into a settlement agreement with respect to two alleged violations (Tr. 103-106) . Under the
settlement agreement , Zeigler would pay in full the penalties
proposed by MSHA which amounted to $91 for each violation.
One of the violations was alleged in Citation No . 2323514
which stated that Zeigler had violated section 75 . 517 because
the trailing cable for the loading machine was not adequately
insulated and full y protected at one location.
The outer
jacket of the cable had been damaged and repaired , but the
inner insulated power conductors were exposed at that l ocation .
The other violation was alleged in Citation No. 2323516
which stated that Zeigler had violated section 75.503 by failing to maintain the continuous mining machine in a permissible
condition because there were several opening s in the electrical components which were in excess of . 00 4 inch .
MSHA proposed a penalty of $91 for each violation based
primarily on the inspector ' s evaluation of negligence and
gravity.
In each instance, the inspector considered the violation to have been associated with moderate negligence and
to have been moderately serious.
In each instance, MSHA reduced the penalty by 30 percent under section 100 . 3(f) of the
assessment formula because Zeigler demonstrated a good-faith
effort to achieve rapid compliance after the violations had
been cited. Under the criterion of history of previous violations , MSHA assigned two penalty points based on the calculation described in section 100.3(c) of the assessment formu la , using the statistics that Zeigler had been assessed for
90 violations during 255 inspection days. MSHA assigned nine
penalty points under the criterion of the size of respondent's
business, utilizing coal-production figures in the same range
of magnitude which I have previously discussed in this proceeding.
·
My examination of the procedures used by MSHA to arrive
at a proposed penalty of $91 for each alleged violation shows
that the penalties were properly determined under MSHA's
assessment formula described in section 100.3. Therefore, I
find that the parties' settlement agreement, under which
Zeigler agreed to pay each of the proposed penalties in full,
should be approved.
I should note that Exhibit 9 in this proceeding indicates
that Zeigler has an unfavorable history of previous violations

474

with respect to prior violations of both section 75 . 503 and
section 75 . 517 .
If the parties had introduced evidence with
respect to each of the alleged violations and if the Secretary's
counsel had succeeded in proving that violations occurred, I
would have assessed civil penalties based on the evidence in
this proceeding without giving any considerat ion to MSHA's
proposed penal ties because, as the Commission has held in t\vo
recent decisions in Sellersburg Stone Co., 5 FMSHRC 287 ( 1 983),
aff ' d , 736 F.2d 1147 (7th Cir. 1984) , and u.S. Steel Mining
Co. , Inc., 6 FMSHRC 1148 (1984), the Commission and its judges
are not bound by MSHA's assessment procedures described in
Part 100 of Title 30 of the Code of Federal Regulations when
assessing penalties on the basis of evidence presented at a
hearing.
V.Jhen I am evaluating settlement proposals , however r the
parties have not introduced any evidence with respect to the
issues involved in the settlements.
In such circumstances , I
am required only to determine if appropriate penalties have
been proposed b y MSHA on the basis of the information MSHA had
when determining its proposed penalties. It would be improper
for me to interpose evidence received in a contested proceeding with respect to a single criterion for the purpose of showing that a proposed penalty might be undul y low unless I also
have evidence before me with respect to other criteria such_
as negligence and gravity. Also, when citations are contested ,
there is the additional possibility that MSHA will be unable
to prove that violations occurred. Moreover, when parties
settle cases, they are engaging in appraisals of the strengths
and weaknesses of their respect i ve cases and are making tradeoffs in accordance with those evaluations. Consequently, the
process of evaluating settlements is entirely different from
the process of deciding cases on the basis of evidr~nce presented at a hearing. For the aforesaid reasons, my approval
of the parties ' settlement agreements should not be considered
as being inconsistent with the procedures which I have utilized
to assess penalties in the decisions which I have rendered with
respect to the issues raised in the contested aspects of this
proceeding.
WHEREFORE , it is ordered:
(A ) Citation No. 2323517 is modified to remove therefrom
the designation of "significant and substantial" in Item No.
lla of that citation .
Citation No. 2323515 dated July 25, 1984, alleging
(B)
a violation of section 75.503~ is vacated for the reasons
hereinbefore given .
Zeigler Coal Company shall , within 30 days from the
(C)
date of this decision , pay civil penalties totaling $827.00,

·475

of which an amount of $645 . 00 is allocated to the respective
violations as shown in paragraph D below, and an amount of
$182 . 00 is allocated to the respective violations as shown in
paragraph E below.
(D) Penalties totaling $645.00 have been assessed with
respect to the contested issues in this proceeding as shown
below:
Citation No. 2323513 7/25/84 § 75.503 ..••.•• • $400.00
Citation No . 2323517 7/25/84 § 75.316 •.••• • • • 210.00
Citation No. 2323518 7/26/84 § 75.1105 •••••••
35.00
Totai Penalties Assessed in Contested
Proceeding •••• • •••••• . •••••••• • •••••••••••• $645 . 00

(E)
The parties; settlement agreement resulted in the
payment of penalties totaling $182 . 00 which are allocated as
follows :
Citation No. 2323514 7/ 25/84 § 75.517
Citation No. 2323516 7/25/84 § 75.503

$ 91.00
91.00

Total Pena l ties Agreed upon i n Settl ement
Proceeding o o o o c oo o o o o o o o o o., o o co o o o o "., o o o $ 1 8 2 o 00
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~fteoft~

Administrative Law Judge

Distribution:
Rafael Alvarez, Esq., Office of tpe .$olicitor, u. s. Department
of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL
60604 (Certified Mail)
J. Halbert \"loods, General Attorney, Zeigler Coal Company, 2700
River Road, Suite 400 , Des Plaines, IL 60018 (Certified Mai l)

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. 4'76

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

March 28, 1985

MARION L. ADAMS,

DISCRIMIN ATION PROCEEDING

Complainant

Docket No .

YO RK 84-15-DM

v.

J. L. OWE NS 1II 9 CON TRA CTI NG
a/k/a J . L. OWE NS I II 9
a/k/a EASTER N AGGREGAT ES,

INC .,

MD 84-2 3

Ea s tern Aggregate Mi ne

Re spon de nt

FINA L ORDE R
Before :

Jud ge Merl ·i n

The partie s have r e ach e d sett lem en t in the above-captioned
matter under the foll owi ng terms:
Respondent shal1 prov i de Complainant with

1.

A five (5) year annuity with a company of Compla i nant's
choice payable to the Complainant or his heirs or
assigns at the rate of Five Hundred Dollars ($500.00)
monthly certain.

2.

A payment of the sum of Ten Thousan d Dollar s
($10,000 . 00), out of which sum the Complainant sha ll
pay all of the court costs together with an agreed
upon attorney's fee in the amount of Seven Thousand
Five Hundred Dol l ars ($7,500 . 00) .

The Complainant agrees -1.

To terminate his employment wi th Respondent and waive
his right to re-instatement as of April 27 9 1984 .

2.

To dismiss his complaint in these proceedings .

Both Complainant and Respondent agree to execute mutual
releases, releasing the other from all torts, claims and monies
due to the date of this Agreement ; known and unknown .

"4 7"1

I conclude the foregoing settlement including the attorneys
fee is proper and it is therefore Approved.
The foregoing settlement approval supersedes all prior
orders regarding relief .
This case is hereby DISMISSED .

Paul Merlin
Chief Administrative Law J udge
Distribution :
Timothy D. Murnane, Esq., P. 0. Box 125, Davidsonville, MD
(Certified Mail)

21035

William E . Kirk, Esq . , Town shend and Kirk, P. A., Me l ridge
Building, 700 Melvin Avenue , Annapolis, MD 21401 (Certified
I~ a i l )
/gl

·478

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

SECRETARY OF LABOR v
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Pet i t i oner

CIVIL PENALTY PROCEEDING
Doc k e t No . PENN 84 - 43
A.C . No . 36 - 0 23 9 8- 03522

v.
Grove No . 1 Mine
G M & W COAL COMPANY u IN C o ~
Re s p ondent

0
0

DECISION
Appearance s :

Before:

Howard IC Agran 9 Es q. u Off i ce of ·che Solic i tor "
U. S . Department of Labor 9 Philadelph i a r
Pe nnsylvania v f o r Pet iti on er ~
J ames F. Beenerv Esq . , Barbera a nd Bar bera u
Somerset , Pennsylvania, for Respondent .

Judge Melick

In the e arly morning of July 11, 1983, both legs of
miner Louis Sinclair were severed when a shuttle car pinned
him against a rib at the G M & W Coal Company , Grove No . 1
Min e .
He died of his injuries a few hours later . The evidence shows that the operator of that shuttle car had customarily operated a Joy Model 21SC but less than 2 hours before
this tragic accident was transferred to a Joy Model lOSC in
which the brake and tram control pedals were in reverse posi tion . The investigators surmise that during the course of
work activities the shutt l e car operator suddenly became
aware that his car was moving toward the deceased and
attempted to engage the brake pedal. Tragically , because the
brake and tram control pedals on the Model lOSC were opposite
those on the shuttle car he ordinarily operated , he accidentally engaged the tram pedal rather than the brake pedal and
pinned the deceased against the rib . l/

ljAstonishingly there appears to be no Federal requirement
that mining equipment have standardized positions for the
tram and brake pedals . According to witnesses at hearing
a single manufacturer may produce the same equipment with the
tram and brake pedals in opposite positions. Moreover it is
not uncommon for the same type of equipment to be operating
in the same mine but with these critical pedals in opposite
positions.

·47.9

Following its investigation, MSHA issued a section
104(g)(l) order on July 13, 1983 alleging a violation of the
standard at 30 C.P.R. § 48.7(c) and charging that the shuttle
car operator had not received adequate task training for the
type of shuttle car he was operating . ~/ MSHA thereafter
filed the captioned civil penalty proceeding seeking civil
penalties of $3,000 for the alleged violation. At the
hearing on February 28, 1985 , MSHA moved for approval of a
settlement agreement requiring payment of $2,000 in penalties .
It is noted in the motion that the available evidenc~ does
not conclusivly prove that the accident was caused by the
inadequency of the new task training provided the shuttle car
operator .
I t was MSHA ' s posi t ion that whi le new tas k
training might have prevented the a c cident , t he acc i dent ma y
also have been caused by human error under emergency conditions .
In any event the motion sets fort h adequate groun ds
for the proposed settlement under the criteria se t fort h in
section llO(i } of the Act .
WHEREFORE the motion for appr~al of settlement i s
GRANTED and it is ORDERED that Re~p?. dent pay a penalty of
$2,000 within 30 days of this ec1s!l n .

l
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!·· )1/\./'-' i
'-Gar: Mel~c
' Admi istia ive Law Judge
( 70'3) 756-6 61

~/Section 104(g)(l) reads as follows:

If, upon any inspection or investigation pursuant to section 103 of this Act , the Secretary or
an authorized representative shall find employed at
a coal or other mine a miner who has not receive
the requisite safety training as determined under
section 115 of this Act, the Secretary or an authorized representative shall issue an order under
this section which declares such miner to be a
hazard to himself and to others and requiring that
such miner be immediately withdrawn from the coal
or other mine, and be prohibited from entering such
mine until an authorized representative of the
Secretary determines that such miner has received
the training required by section 115 of this Act.

·430

Distribution:
Howard K. Agran, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market Street, Philadelphia, Pennsylvania
19104 {Certified Mail)
James F . Beener, Esq., Barbera and Barbera, 146 West Main
Street, Somerset, Pennsylvania 15501 (Certified Mail)
rbg

·48.1

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMIN ISTRATI VE LAW JUDGES
2 SKYLINE, l Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

MAR 29\985

LOCAL UNION 762, DISTRICT 5,
(VESTA #5 MINE) , UNITED MINE
WORKERS OF AMERICA (UMWA) ,

COMPENSATION PROCEEDING

LOCAL UNION 6430 , DISTRICT 4;
(GATEWAY r.HNE) r UNI TED l.ViiNE
WORKERS OF AMERICA (UMWA) _,

LaBelle Preparation Plant

LOCAL UNION 6159 o DISTRICT .4 f
(BOBTOWN MINE) u UNITED ~UNE
WORKERS OF AMERICA ( UMWA} 9
Complainants

Docket No. PENN 84-92-C

~

v.
LABELLE PROCESSING COMPANY ,
VESTA MINING COMPANY , AND
A. To MASSEY COAL COMPANY ,
INC. ,
Respondents
ORDER GRANTING MOTION TO DI SMISS
Before:

Judge Steffey

Counsel for complainants filed on March 26r 1985, in the
above-entitled proceeding a motion to withdraw the comp~aint
for compensation a nd "for an order dismiss i ng the above proceedings with prejudice but without findings of fact or conclusions of law." The motion states that complainants' c ounsel has discussed the filing of the motion with respondents '
counsel and that respondents are not opposed to the grant of
the motion and the dismissal of the proceedings.
A large number of pleadings have been filed by the parties in this proceeding and I have issued several orders
granting or denying various procedural reque s ts, but no ruling has been made with respect to the merits of the complaint.
I nasmuch as complainants are the parties who instituted the
pro c e e ding and inasmuc h a s respondents have no objecti on to
t he grant of the motion , I find that good cause has been shown
for granting complainants ' motion.
WHEREFORE, it is ordered:

·48 2

The motion to withdraw the complaint for compensation
filed on March 26, 1985, is granted, the complaint is deemed
to have been withdrawn, and all further.proceedings in Docket
No. PENN 84-92-C are dismissed with prejudice.

~s~~~~

Administrative Law Judge

Distribution :
Earl R. Pfeffer, Esq., United Mine Workers of America, 90015th Street, NW, Washington , DC 20005 (Certified Mail)
Michael T. Heenan, Esq., Smith, Heenan; Althen & Zanol l i ,
1110 Vermont Avenue, NW, Washington, DC 20005 (Certified Mail)

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·488