APRIL 1985
Commission Decisions
04-12-85
04- 29-85
04-29- 85
04- 29 - 85
04-29-85
04-29 - 85

Emiliano Cruz v. Puerto Rican Cement Co.
Consolidation Coal Company
Jim 1-lalter Resources, Inc.
Freeman United Coal Mining Co.
Jim Walte~ Resources, Inc.
Southern Ohio Coal Company

SE
83-62-DM
WEVA 83-280-R
SE
84-23
LAKE 82- 3
SE
84-57
WEVA 84-166

Pg. 487
Pg. 490
Pg . 493
Pg. 501
Pg. 506
Pg. 509

\.JEST 84-17 -H
KENT 84- 89
~.JEVA 84-152-R
WEST 85-18-M
SE
84-48-DM
WEVA 84-296-R
SE 84-68-1'1
WEST 83-68
\\TEST 83-86-DM
WEST 84-106- R
LAKE 85-4
LAKE 84-72
WEST 84-87-M
WEVA 81-620-R
WEVA 83-211

Pg. 515
Pg. 517
Pg. 520
Pg. 536
Pg. 537
Pg. 543
Pg. 562
Pg. 568
Pg. 570
Pg. 571
Pg. 573
Pg. 589
Pg . 591
Pg. 597
Pg. 601

Administrative Law Judge Decisions
04-01-85
04-03-85
04 - 04-85
04-10-85
04- 15-85
04-15- 85
04-16-85
04- 16-85
04-16-85
04-16-85
04-19-85
04-23-85
04-23-85
04-24-85
04-24-85

Sylva Sand & Gravel, Inc .
Pyro Mining Company
Venblack, Inc.
FMC Wyoming Corporation
Raymond Copeland v Agrico Mining Co.
Southern Ohio Coal Company
John J . Craig Company
Kaiser Steel Corporation
Bobby Campbell v Daniels Construction Co.
Plateau Mining Company
Peabody Coal Company
R & F Coal Company
Asphalt Paving Company
Consolidation Coal Company
Eastern Associated Coal Corporation

APRIL
The Commission directed the following cases for review during April :
Robert Simpson v. Kenta Energy, Inc., Docket No. KENT 83-155-D.
Broderick , February 26, 1985).

(Judge

Secretary of Labor, MSHA v. Cotter Corporation, Docket No. WEST 84- 26-M.
(Judge Carlson, March 6, 1985).
Emiliano Rosa Cruz v. Puerto Rican Cement Co ., Docket No. SE 83-62-DM.
(Judge Broderick , March 7, 1985).
Review was denied in the fo llowing case during Apri l :
Secretaty of Labor, MSHA v. Consolidation Coal Company, Docket Nos .
liEVA 83-280-R, 83-281- R, 84-16-R. (Judge Steffey, March 1, 1985).

COMMISSION DECISIONS

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

April 12, 1985
EMILIANO ROSA CRUZ
Docket No. SE 83- 62-DM

v.
PUERTO RICAN CEMENT CQ}WANY, INC .
DIRECTION FOR REVIEt.J ANU ORDER
The petition for discretionary review filed by Puerto Rican Cement
Company is granted. In his decision in this matter the administrative
law judge concluded that complainant \-7as discharged in violation of
section 105(c) of the Mine Act, 30 u.s·.c. § 815(c) , and ordered payment
of backpay, i nterest, attorneys fees and costs , and complainant 7 s reinstatement.
In his decision on the merits of the discrimination claitn ~ the
judge expressly declined to make factual findings concerning testimony
at the hearing that complainant had threatened the l i fe of the operator's
ass i s t ant personnel manager . 6 FMSHRC 1753, 1760 (July 1984). The
judge stated that since the threat all egedly was made subsequent to
complainant 1 s discharge, it was " not relev.a nt to this proceeding."
Although the alleged conduct has no bearing on whether complainant was
discharged illegally, it may affect the relief to which complainant is
entitled. In certain circumstances, post-discharge opprobrious conduct
may r ender an order of reinstatement inappropriate. See, ~· Alumbaugh
Coal Corp. v . NLRB, 635 F . 2d 1380, 1385-86 (8th Cir. 1980); ~1osher
Steel Co . v . NLRB , 568 F. 2d 436 (5th Cir . 1978); NLRB v. Yazoo Valley
Electric Power Ass ' n . , 405 F.2d 479, 480 (5th Cir . 1968); NLRB v. R. C.
Can Co ., 340 F.2d 433 (5th Cir. 1965) . Such conduct may also toll the
per iod of time for whi ch backpay is due. Alumbaugh Coal Corp . v. NLRB,
635 F . 2d at 1386 . Therefore, we remand to the judge for reconsideration
and further findings on this issue. '.Je int imate no views, ho\-lever , as
to the appropriate resolution of this issue, leaving this determination
i n the first instance to the trier of fact.
We also are t r oubled by the denial of the oper ator's request for an
oppor tunity to depose complainant concerning his attemp t s to obtain
i nteri m employment and the ext ent of his interim earnings . In thi s
proceeding , the judge first decided the merits of the discrimi nation
claim and t hen ordered the parties to file written submissions as to
relief. In light of complainant's written submissions, certain questions
were raised by the operator concerning complainant ' s i n terim employment
and earnings . The oper ator seeks to depose complainant and obtain a
statement of his earnings from the Social Security Administration. In

487

the circumstances, and in light of the need for a remand on the prior
issue, we believe the operator should have this opportunity . Elias
Moses v. Whitley Development Corporation, 4 FMSHRC 1475, 1483- 84
(August 1982).
Accordingly, the case is remanded to the administrative law judge
for further expedited proceedings consistent with this order. Any party
thereafter adversely affected or aggrieved may thereafter file petitions
for discretionary review with the Commission in accordance with 30 U. S.C.
§ 823(d)(2) .

U

~!s A. i~astowk(~'Commissioner

I

.

._£..<..--L.·v

~.

2C ~l.
~

t/_.t-r\ _/
L. Clair Nelson, Commissioner

488

/

Distribution
Daniel R. Dominquez
Dominguez & Totti
P . O. Box 1732
Hato Rey, P.R.
00919
Julio Alvarado Ginorio
P • 0. Box 1771
Ponce , P . R. 00733
Administrative La~v Judge James A. Broderick
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 Skyline, lOth Floor
5203 Leesburg Pike
Falls Church , Virginia
22041

489

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

April 29, 1985

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

Docket Nos . WEVA 83-280- R
WEVA 83-281-R
WEVA 84-16-R

v.
CONSOLIDATION COAL COMPANY

BEFORE:

Backley, Acting Chairman; Lastowka, Nelson , Commissioners

ORDER
BY THE COMMISSION:
On April 9, 1985 , the Commission issued a notice informing the
parties that t he petition for discretionary review filed in this matter
by Consolidation Coal Company (Consol) had not been granted and, accordingly, that the decision of the administrative la\·1 judge was the f inal
or der of the Commission. 30 U. S.C. § 823 (d)(l).
On Apr il 24, 1985, the Commission received a "petition for reconsider ation" from Consol. The petition for reconsideration states :

At the present time , the Commission is composed of
three members. If the Commission pr esently consist ed of its statutory five members, it would be
more likely that this non- frivolous appeal , which
is of great importance to Consol specifically and
the mining industry in general, would be ordered
reviewed.
Consol r equests that the Commission reconsider and grant its petition.

Consol correctly observes that two vacancies presently exist on
this five-member Commission. We note, however, that section ll3(c) of
the Mine Act authorizes panels of three members to exercise "any or all
of the powers of the Commission". 30 U.S.C. § 823(c). Consol's petition
for discretionary review, the administrative law judge's decision, and
the entire record were fully considered by each of the present members
of the Commission. No two members, however, voted to grant the petition
and the judge's decision became the final order of the Commission 40 days
after its issuance. 30 U.S.C. § 823(d)(l) and (2). No reasons have been
advanced by Consol justifying the reconsideration it seeks. Further review
of the Commission's final order is available in an appropriate U. S. Court
of Appeals. 30 U.S.C . § 816(a).
Accordingly, the petition for

491

Distribution
Robert M. Vukas, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Richard Steffey
Federal Mine Safety & Health ~view Commission
5203 Leesburg Pike, lOth Floor
Falls Church, Virginia 22041

492

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

April 29, 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 84-23

v.
JIM WALTER RESOURCES. INC.

BEFORE:

Backley ~

Acting Chairman; Lastowka and Nelson~ Commissioners
DECISION

BY THE COMMISSION:
In this ci vil penalty case arising under the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seq. (1982), lve are called
upon to examine the safeguard provisions-of~ C. F. R. § 75.1403. The
specific issue presented is whether 30 C.F.R. § 75 . 1403-S(g), dealing
with the provision of a clear travelway at least 24 inches wide "on both
sides of all belt conveyors," applies to the transportation of coal on
coal-carrying belt conveyors. The Commission's Chief Administrative Law
Judge answered the question in the negative and vacated a citation
alleging a violation of a safeguard issued pursuant to section i5.1403-S(g).
The judge concluded that the cited regulatory provision and section
75 . 1403, as well as Part 75 Subpart 0 of 30 C. F.R. (in which section
75.1403 is contained), do not apply to the transportation of coal on
coal-carrying belt conveyors. 6 FMSHRC 1815 (July 1984)(ALJ). l/
1/
As discussed below, section 75.1403- S(g) was promulgated to implement
section 314 of the Mine Act . 30 U.S.C. § 874 . Section 314 of the Act,
entitled "Hoisting and Mantrips," was adopted without change from the
1969 Coal Act. 30 U.S.C. § 801 et seq. (1976)(amended 1977). The
regulatory counterpart of section-314 of the Act is Subpart 0 of 30
C.F.R. Part 75, also entitled "Hoisting and Mantrips," which includes §§
75.1400 through 75.1405. Section 75.1403 repeats section 314(b) of the
Act, 30 U.S . C. § 874(b):
Other safeguards adequate, in the jud.gment of an authorized representative of the Secretary [of Labor], to minimize hazards with
respect to transportation of men and materials shall be provided.
(footnote 1 continued)

493 .

We disagree. For the reasons stated below, we hold that the safeguard
provisions of section 75.1403- 5(g) apply to coal- carrying belt conveyors.
Accordingly , we reverse the judge's vacation of the citation and we
remand for a determination on the mertts consistent with the principles
enunciated in Southern Ohio Coal Co., 7 FMSHRC
, Docket Nos. WEVA
84-166 & WEVA 84- 94- R (decided this same date).--On September 8 , 1981, an inspector of the Department of Labor ' s
Mine Safety and Health Administration ("MSHA"), T. J . Ingram, conducted
an inspection of the Jim Walter Resources (" J'offi.") No. 3 underground coal
mine . Pursuant to section 75.1403 , the inspector issued to JWR "notice
to provide safeguard" No. 0758641, which stated :
Twenty- four inches of travel space was not provided between the No . 3 longwall belt and the
right rib along the pillar inby the No. 1 header .
Twenty-four inches of travel shall be provided on
both sides of the belt .
On September 8, 1984, while inspecting the same mine, MSHA Inspector
Luther McAnally issued the instant citation , which referred to section
75.1403-5(g) and alleged a violation of the safeguard notice i ssued by
Inspector Ingram:
A clear travelway of at least 24 inches on each
side of the North Mains A and -B belt ~vas not
maintained in that large rocks, rolls of belt, and
belt structures were obstructing the walkways .
Safeguard No . 0758641 was issued by T. J . Ingram on
September 8 , 1981.
footnote l continued
The procedure by which an authorized representative of the Secretary
of Labor may issue a citation pursuant to section 75.1403 is described
in 30 C.F.R. § 75. 1403-l(b):
The authorized representative of the Secretary shall in writing
advise the operator of a specific safeguard which is required
pursuant to § 75 . 1403 and shall fix a time in which the operator
shall provide and thereafter maintain such safeguard. If the
safeguard is not provided within the time fixed and if it is not
maintained thereafter, a notice shall be issued to the operator
pursuant to section 104 of the Act.
30 C.F . R. §§ 75.1403-2 through 75.1403- 11 set forth specific "criteria"
by which authorized representatives are guided in requiring safeguards .
Section 75.1403-5 is headed: "Criteria-- Belt Conveyors," and -S(g),
the subsection at issue in this case, states in part :
A clear travelway at least 24 inches wide should be provided on
both sides of all belt conveyors installed after March 30, 1970.

49 4

Inspector McAnally testified that the size and extent of the objects
described made it difficult and potentially dangerous to travel the
walkway alongside the belt conveyor. It is not disputed that the cited
belt conveyor was used solely to transport coal.
In his decision, the judge expressed his agreement with an earlier
unreviewed holding by another Commission judge that the statutory and
regulatory intent behind section 75.1403 and subsection -S(g) is to
address hazardous conditions associated with belt conveyors that transport
persons and materials other than coal. 6 FMSHRC at 1819, citing Monterey
Coal Co . , 6 FMSHRC 424, 451- 58 (February 1984)(ALJ). Noting that the
safeguard provisions of section 75.1403 are contained in Subpart 0 ,
entitled "Hoisting and Mantrips," the judge construed the reference to
the "transportation of men and materials" to exclude the transport of
coal. 6 FMSHRC at 1819. The judge stated that if the Secretary believed
that coal- carrying belt conveyors could be covered under Subpart 0 9 "it
would have been a simple matter for him to specifically include them. "
Id. Lastly, the judge noted that coal- carrying belt conveyors are
mentioned specifically in 30 C.F.R. § 75.303. That provision is based
on section 303 of the Hine Act, 30 U.S.C. § 863, and deals with pre-shift
and on-shift inspections of belt conveyors. The judge viewed the contrast
between the reference to coal-carrying belt conveyors in section 75.303
and the l ack of expres s reference to such belts in section 75 .1403 as a
further indication that section 75.1403 was not intended to apply to
coal-carrying belt conveyors. Id .
TI1e argument that section 314 of the Mine Act and Subpart 0 of 30
C.F.R. Part 75 are limited to the movement of persons and materials
other than coal is based on the lack of specific references to "coalcarrying belt conveyors" in these provisions . We find the absence of
such explicit mention to be immaterial in view of the inclusive purpose
and language of these provisions. We conclude that section 314(b)
authorizes the Secretary of Labor to require safeguards with respect to
coal- carrying belt conveyors and that the relevant regulations of Subpart 0 apply to such belts.
The regulatory provisions contained in Subpart 0 were promulgated
to implement section 314 of the Act. Therefore, in construing these
regulations, we must look first to the meaning of the statutory provision
they effectuate. See Emery Mining Corp . , 5 FMSHRC 1400, 1401-02 (August
1983), aff'd sub nom. Emery Mining Corp. v. Secretary of Labor, 744 F.2d
1411, 1414 (lOth Cir. 1984) . Before focusing on section 314(b), which
deals specifically with t he subject of safeguards, we examine section
314 from a general perspective.
Unquestionably, a major regulatory concern of section 314 , entitled
"Hoisting and Mantrips," is the transport in coal mines of persons and
of "materials" in the form of equipment and supplies. However, that
concern does not exhaust the scope of section 314. Sections 314(e) and
(f), for example, address safe braking, stopping, and coupling with
respect to "locomotives," ''haulage cars , " and "haulage equipment." As
we have indicated in a related context, the term "haulage car" in mining
parlance refers to a car that carries ore, in addition to personnel,

495

supplies, or equipment. Florence Mining Co ., etc. , 5 FM~HRC 189, 195- 96
(February 1983), aff'd mem . 725 F.2d 667 (3rd Cir . 1983). In mining
usage, " track haulage" -- one of the general subjects of sections
314(e) and (f) -- denotes the "movemen:t or transpot'tation of excavated
or mined materials • . •• " But'eau of Mines , Dep't of the Interior, A
Dictionary of Mining, Mineral, and Related Terms 1156 (1968) ("DMMRT").
See also Florence Mining Co., supra. 11 Thus , section 314 of the Act clearly
extends to the transportation of coal in coal mines .
Section 314(b), the · safeguard provision repeated in 30 C.F.R. §
75.1403 , is c~st in broad terms:
Other safeguards adequate, in the judgment of an
authorized representative of the Secretary, to
minimize hazards with respect to transportation of
men and materials shall be provided.
30 U.S.C. § 874(b) (emphasis added) . Section 314( b) is found in a
statutory section that, as concluded above, applies to the transport of
coal. In this context, reading "transportation of • • • materials" to
encompass the movement of coal is both natural and logical. The term
"transportation" is not qualified by type, power, or mode of transport
used. 1-le read the term to cover both track and trackless haulage (n. 2
infra). "Material" is also a broad term. See Webster ~s Third New International Dictionary (Unabridged) 1392 (1971~ The broad language of
section 314(b) manifests a legislative purpose to guard against all
hazards attendant upon haulage and transport in coal mining, regardless
of that which is transported or the mode of transport used .
The legislative history relevant to section 314(b) fut'thet' evidences
such a purpose:
This section authorizes the inspector to
require certain safeguards for transporting men
and materials .
All mantrip and haulage operations regardless
~the motive power or conveyance may be hazardous.
It therefore has been deemed wise to make the
mandatory provisions all inclusive and not just
confine it to any one type of conveyance.
S. Rep. No. 411, 9lst Cong . , lst Sess . 81 (1969), reprinted in Senate
Subcommittee on Labor , Committee on Labor and Public Welfare, 94th
Cong., 1st Sess., Legislative History of the Federal Coal Mine
Health and Safety Act of 1969 , at 207 (1975)(emphasis added). In light
of the foregoing considerations, we interpret section 314(b) to authorize
the Sect'etary of Labor to require "(o]ther safeguards ..• to minimize
2/
"Haulage," the general concern addressed by section 314, refers to
the transportation of ore, personnel, waste , supplies , and equipment.
See DM}ffiT 530 . The two major modes of haulage are tt'ack haulage (vehicles
running on tracks) and tt'ackless haulage; the latter includes wheeled
haulage and conveyor haulage. See, e.g., S. Cassidy (ed.), Elements of
Practical Coal Hining 125-42 (197 3) . - -

486

hazards with respect to the transportation" of coal on coal-carrying
belt conveyors. 1/
The preceding statutory construc~ion leads to the crucial question
in this case: whether the Secretary availed himself of section 314's
grant of authority by addressing , in his Subpart 0 regulations , safeguard
requirements for coal-carrying belt conveyors. At first glance, the
fact that the specifically challenged regulatory provision, section
75.1403-S(g), refers broadly to "all belt conveyors'' (emphasis added)
would appear to provide an affirmative answer to tha t question. Nevertheless , we are met with a related series of objections that Subpart 0
as a whole , section 75.1403 entitled "Other safeguards~'' and section
75.1403-5 entitled "Criteria--Belt conveyors ," all exclude the movement
of coal . For reasons simila r to those developed in our examination of
section 314, we find no such restrictions .
We start \.;ith Subpart 0 itself. 30 C. F.R. § 75. 1401., a secc::.on of
general applicablity covering "hoists" used to t ransport either persons
or "materials," deals with the rated load capacities of "hoists" and the
position indicators of " the cage, platform, skip, bucket or cars . " All
the key terms in section 75.1401 refer , in part, to the transportation
of ore in mines. See DMMRT 146. 160 9 172 . 709, 834. & 1021 . 30 C.F . R.
§ 75.1404 sets braking requirements for "locomotives and hau:. · <>,e cars. '~
and 30 C.F.R. § 75.140 5 requires automatic couplers f or 11 all haul age
equipment." As demonstrated above in our discussion of tile corresponding
provisions in section 314, these haulage refe renc es ar e to equipment and
processes involved in the transport of coal . Thus, the regulatory
provisions contained in Subpart 0 are not limited to the movement of
persons and mater ials other t han coal. Again, while the title to the
subpart, "Hoisting and Man trips , '' provides a convenient indication of
one core concern, the heading is not all inclusive of the subpart's
content .
Section 75.1403 itself simply restates section 314(b) of the Act .
Accordingly, this regulatory provision repeats the broad statutory
language , which, for the reasons set forth earlier , may be applied to
the transportation of coal on belt conveyors. Section 75 . 1403 is part
of a larger regulatory subpart that , as just discussed, extends to the
movement of coal . Aside from section 75.1403-5, which contains the
criteria concerning belt conveyors, a number of the subsections of
75.1403 deal, in part , with the transport of coal. 30 C.F.R. § 75.1403-2
sets braking standards for "hoists" and "elevators" for t he transportation
of "materials , " and uses the terms "cage. skip, car or other devices . "
Al l the relevant terms in this section connote, in part, the movement of
coal. 30 C. F . R. § 75.1403- 8 sets criteria for "track haulage" roads.
3/

Reliance has been placed on the title of section 314 (and of Subpart

0), "Hoisting and Mantrips , " as an indication that only the transpo rt of
persons and materials other than coal is covered. As we have observed
previously , titles and organizational arrangements may serve as i ntrinsic
aids to construction in appropriate instances. Frequently, however,
titles are merely summary highlights of general content or leg:i.slative
objectives . In cases of seeming conflict between a shorthand title and
clear legislative purpose or text , the l atter must control. Allied
Chemical Corp., 5 Ft1SHRC 1854, 1856-57 (August 1984).

497

As shown above "track haulage" commonly refers to the "movement or
transportation of excavated or mined materials • • • • " DMMRT 1156 . Similarly,
30 C. F . R. § 75.1403- 10 sets general criteria for haulage pertaining to
haulage equipment, tracks, roads, etc.· When viewed in its entirety, it
is apparent that section 75.1403 contains criteria that address the
transportation of coal , as well as the transportation of personnel and
other materials. \-le therefore reject the judge's conclusion that section
75 . 1403 authorizes safeguards only with respect to the transportation of
men and materials other than coal.
Nor can we find that section 75 . 1403-5 or its subsection (g ) were
intended to exclude coal -carrying belt conveyors f rom coverage. He
interpret the criteria at 30 C. F. R. § § 75 .1403-S(a), (b ) , (c), (d), ( e ),
(f), and (i) to require the implementation of additiona l sa f e t y f eat ur es
and practices when belt conveyo rs are used f or the trans por t a tion of
persons and materials other than coaL 30 C.F.R. § 75. 1403- S(h) , however ,
s e ts out less stringent requirements on bel t conveyors t ha t "do no·i:
transport men. n A reasonable interpretation of thi s subsection . given
the wide scope of Subpart 0, is that it applies to bel ts that carry
coal. Likewise, section 75 . 1403-5(j), \-lhich prohibits persons from
crossing "moving conveyor belts , " necessarily a ppl i e s to a ll moving
belts, whatever t hey carry . bec ause the hazard pr esented is the same.
Turning t o t he criterion a t i ssue, sect i on 75,14 03-S (g), ·che mo st
natural reading of t he plain l anguage of s ubsecti on (g) i s ·that it
applies to all belt conveyors regardless of whether they move coal,
personnel, or materials other than coal. Nevertheless, the judge concluded , in part, that coal-carrying belts are properly the subject of
section 75.303 , and not of section 75 . 1403, because Congress, in section
303(d) of the Act (and the Secretary in 30 C.F.R. § 75.303) clearly
distinguished between coal-carrying and person- carrying belts . However,
section 75 . 303 only specifies the requirements f o r pre-shift and on-sh ift
examinations of belt conveyors, and does not set general safety standards
for belt conveyors. The only reference to coal-carrying belts in section
75 . 303 is that "they shall be examined after the shift has begun . " He
cannot view this separate statutory and regulatory reference as a convincing indication that the broad language of section 314, Subpart 0,
and section 75 . 1403-S(g) does not extend to coal- carryi ng belt conveyors .
More fundamentally, the very purpose of these provisions -·- the
elimination of t r ansportation- r e lated hazards -- mil itates against the
distinctions that we have been asked to recognize . Section 75.1403- S(g)
authorizes safeguards that provide for a "clear travelway • • • on both
sides of all belt conveyors • .•• " Miners frequently must work, carry out
inspection activities, and pass alongside moving coal-carrying belt
conveyors. Injuries to miners resulting from accidental contact with
these belts would be no different than those invol ving contact wi th
non- coal- carrying conveyors. Therefore, ~.,e find no basis for limiting
the requirement of unobstructed travelways to one type of belt conveyor
and not the other .

498

For the reasons stated above, we conclude that section 75.1403-S(g)
applies to coal-carrying belt conveyors. Because the citation in this
case was vacated by the judge on the threshold issue of coverage under
the safeguard regulations, we remand f0r a finding as to whether the
conditions cited constitute a violation of the safeguard issued under
section 75.1403- S(g) . See Southern Ohio Coal Co . , supra.~/

~~
Richard V.

Backl ey~

Acting Chairman

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

499

Distribution
H. Thomas \.Jells, Jr., Esq.
Maynard, Cooper, Frierson & Gale, P.C.
Twelfth Floor Watts Bldg.
Third Ave. North & T\ventieth St.
Birmingham, Alabama 35203
R. Stanley Morrow, Esq.
Jim Walter Resources, Inc .
P.O. Box C-79
Birmingham, Alabama 35283
Vicki Shteir- Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 tvilson Blvd .
Arlington~ Virginia
22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Stree t, N.W., Washington, D.C. 20006

500

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

20006

April 29, 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No . LAKE 82-3

v.

FREEMAN UNITED COAL MINING CO.

BEFORE:

Backley, Acting Chairman; Lastowka and Nelson, Commissioners
DECISION

BY THE Cot1MISSION:
This civil penalty case arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C . § 801 et seq . (1982). The question presented
is whether the Secretary of Labor prcnred a violation of 30 C.F.R. § 75 . 301 .
The Commission's administrative law judge found that a violation was
established and assessed a $150 penalty. 5 FMSHRC 590, 595- 96 (March 1983)
(ALJ). For the reasons that follow, we reverse.
Section 75 . 301 provides in part:
The minimum quantity of air reaching the last open
crosscut in any pair or set of developing entries
and the last open crosscut in any pair or set of
rooms shall be 9 , 000 cubic feet a minute • • • •
During a safety and health inspection at Freeman United Coal Mining
Co. ' s ("Freeman") Crown No. 2 Mine, Mine Safety and Health Administration
(MSHA) Inspector John D. Stritzel proceeded to the last open crosscut
between Rooms 21 and 22 in the 4th southwest section. Inspector Stritzel
was accompanied by David Webb, the assistant to the mine superintendent
a nd Fr eeman's inspector escort, and by Rick Reed, the miner ' s walkaround
r epr esentative . The MSHA inspector attempted to calculate the volume of
air at the crosscut. !/ In making such a calculation the air velocity
1/
The volume of air is the quantity of air flowing through a segment
of an entry in a given time. Air quantity is calculated by multiplying
the air velocity by the cross- sectional area of the entry . The volume
of air is measured in cubic feet per minute ("cfm'').

501

must be determined . The inspector tried to use his anemometer for this
determination, but could not obtain an accurate reading. He therefore
decided to use a chemical smoke tube test to obtain the .measurement . 2/
The inspector divided the crosscut into four quadrants and he and Reed
conducted four or five smoke cloud tests in each quadrant. The inspector
measured a distance of 10 feet in length along the floor of the two
lower quadrants. Reed stood at the "upstream" end of the ten foot line
and squeezed the aspirator bulb to release the smoke cloud upon the
inspector's command. Reed tried to position himself so that the cloud
was released at the beginning of the 10 foot line. The inspector stood
at the "downstream" end of the 10 foot line and timed the cloud 1 s speed
with the second hand of his wrist watch. The inspector pi cked a spot
high on the rib, in line with the end of the ten foot distance, and when
the cloud passed this spot he noted the time. The inspector averaged
the times for each quadrant and then averaged the results to obtain the
air velocity at the crosscut . These procedures were observed by management
representative Webb. The inspector then measured the height and width
of the entry, and he multiplied the height by the width to obtain the
cross-sectional area of the entry . Multiplying the air velocity by the
area of the entry, the inspector calculated the quantity of air reaching
the last open crosscut to be 7 • 654.5 cfm . Because th is ~va s less than
the required minimum of 9,000 cfm, he issued a citation for a violation
of section 75.301 .
Subsequently, the MSHA inspector lost the notes containing the
figures obtained as a result of his tests, and his measurements and
calculations. At the hearing he was unable to recall any of the specific
figures. However, both the inspector and miner representative Reed
testified regarding the general procedures they had used to conduct the
smoke cloud tests. After the Secretary presented his case-in-chief,
counsel for Freeman moved to vacate the citation on the basis that the
test result alone, without the underlying measu rements, could not establish

2/ The basic instruments normally used to measure air velocity are the
rotating vane anemometer and the chemical smoke tube. The vane anemometer
is a small tvindmill geared to a mechanical counter. The chemical smoke
tube is a plas tic or glass pipe with an aspirator bulb at one end.
Smoke is generated into the mine's atmosphere by squeezing the aspirator
bulb which forces air through the tube containing a smoke generat ing
chemical. The smoke cloud moves with the air stream and the cloud is
timed over a known distance laid out along the floor of the mine entry.
Smoke cloud measurements are made by two individials. In essence, one
person is positioned with the smoke tube at the "upstream" end of the
timing distance and the other is positioned t·Tith a timing device at the
"downstream" end of the timing distance. The smoke is released at the
"upstream" position on the command of the timer, who starts timing
simultaneously with the release of the smoke or when the cloud passes a
preselected starting point. Timing is stopped when the cloud passes the
timer. The velocity of the air is determined by calculating the number
of fee t the cloud has traveled, the time it has taken to cover that
distance, and then converting those figures into a feet per minute
measurement.

502

the violation. The administrative law judge denied the motion, ruling
that the Secretary had established prima facie that there was less than
9,000 cfm at the crosscut. In rebuttal Freeman's inspector escort, Mr.
Webb , and Freeman's senior ventilation engineer attacked the test
methodology employed by the inspector and the consequent accuracy of the
test results. They called into question the test procedures by citing
to u.s. Bureau of Mines published documents addressing the cse of smoke
cloud tests , generally accepted scientific principles, and by expressing
opinions based upon their own mining experience .
The judge rejected Freeman 9 s arguments. He found that the air
reaching the last open crosscut "was approximately 7,654.5 cubic feet
per minute." 5 FMSHRC at 593 . He found it "significant ••• that [Freeman ]
••• did not itself take a smoke test." 5 FMSHRC at 596. He concluded,
"[T]he test was validly taken and the results showed a violation." Id.
Because the precise quantity of air in a mine entry is not suscept ible
to perceptual determination , proof by test result is a necessary and
common element in an MSHA enforcement action. Such proof, however, is
not immune from challenge at a hearing, and it is the Secretary who
bears the burden of establishing the violation he has alleged and of
establishing the adequacy of the proof he offers . In this case , determi nation of air quantity required the inspector t o make four types of
mathematical calculations: averaging the smoke cloud test results;
conversion of the average from feet per second into feet per minute;
multiplication of entry height by entry wid th ; and multip l ication of the
average air velocity by the area of the entry. Although there is no way
to prove absolutely that computations such as these are correctly made
without the underlying data, the lack of such data is not necessarily
fatal per se to the finding of a violation. For example, (1) such a
challenge may not be raised by the mine operator or (2) there may be
sufficient additional evidence of the scientific reliability of the test
methodology employed by the inspector to corroborate the result. However,
where an operator contests the violation , is unable to obtain the underlying data and challenges the Secretary's failure to produce it, and
where impeaching evidence of probative worth raises questions regarding
the test methodology , the test result, standing alone , will not suppo rt
a violation. In such circumstances, the record does not afford a basis
for an analysis by which the administrative law judge and, ultimately,
this Commission may verify the validity of the result . Wirtz v . Baldor
Electric Co., 337 F.2d 518, 529-30 (D.C. Cir. 1964). See also Avnet, Inc.,
78 FTC 1562, 1563 n . l (1971) .
--The evidence presented by Freeman in this case raised serious
questions regarding the validity of the test procedures and, hence, of
the accuracy of the test result . Significantly, the Secretary did not
introduce any evidence regarding MSHA approved procedures for conducting
smoke cloud tests or the instructions MSHA provides to its inspectors
for conducting the tests . Nor did the Secre tary's witnesses testify as
to test procedures generally accepted in the mining industry. Thus,
given the complete lack of underlying data, the questions raised by
Freeman concerning the validity of the test methodology employed in this
case, and the lack of evidence regarding smoke cloud test methodology

~)03

advocated by MSHA or accepted by the mining industry as a whole, we
conclude that in this case the judge's conclusion that the Secretary
established a violation of 30 C.F.R. § 75.301 is not supported by substantial evidence. 11
Accordingly, the administrative law judge's conclusion that Freeman
violated 30 C.F.R. § 75.301 is reversed, and the citation is vacated. 4/

11

While Freeman might also have challenged the Secretary's assertions
of a violation by conducting its own tests, its failure to do so did not
diminish the effect of the evidence that was offered by Freeman. It is
the Secretary's responsibility to investigate, allege, and prove violations.
4/
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 .

504

Distribution
Harry M. Coven, Esq.
Gould & Ratner
Suite 1500
300 \-lest \-lashington Str eet
Chicago, Illinois 60606
Barry Wisor, Esq .
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge James A. Broderick
Federal ~tine Safety & Health Review Commission
5203 Leesburg Pike, lOth Floor
Falls Church, Virginia 22041

505

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
113-Q K STREET NW, 6TH FLOOR

W~INGTON, D.C.

20006

April 29, 1985

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nc. SE 84-57

v.

JIM WALTER RESOURCES, INC.

BEFORE :

Backley, Acting Chairman; Las towka and Nelson . Commissioners
DECISION

llY THE COMMISSION:
This civil penalty proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), mirrors the
issues presented in Jim Walter Resources-,-7 FMSHRC
, Docket No. SE
84- 23 (decided this same date) ( "Jim Walter Resources-!"). The citation
at issue in this case alleges a violation of 30 C.F.R. § 75.1403-S(g)
for failure to provide 24 inches of unobstructed clearance along both
sides of a coal- carrying belt conveyor due to the presence of large
rocks, timbers, belt, belt structures, and the closeness of the ribs .
The underlying notice to provide safeguard, issued pursuant to 30 C.F.R.
§ 75 . 1403, is the same notice involved in Jim Walter Resourr.es I, and
the issue presented is also the same: whether section 75.1403-5(g)
applies to coal-carrying belt conveyors.
In iieu of a hearing, the parties stipulated that the condition
occurred as described in the citation; that the belt conveyor was a
coal- carrying conveyor; and that the earlier decision of the Commissionvs
Chief Administrative Law Judge , in Jim Walter Resources I, 6 FMSHRC
1815, 1819 (July l984)(ALJ), controlled. Based on that decision ' s
finding that section 75 . 1403- 5(g) does not apply to coal-carrying belt
conveyors, the judge vacated the citation. 6 FMSHRC 2723 (December
1984)(ALJ). We granted the Secretary ' s petition for discretionary
review.

506

For the reasons explained in our decision in Jim Walter Resources I,
we conclude that section 75.1403-S(g) does apply to coal-carrying belt
conveyors. Accordingly, we reverse the judge ' s decision here . We
r emand for further proceedings and findings as to whether the conditions
cited constitute a violation of the safeguard issued under section
75 . 1403-S(g). See Southern Ohio Coal Co., 7 FMSHRC _ , Docket No . \VEVA
84-166 (issued this same date). ll

~ames

A. Lastowka , Commissioner

&~~

L. Clair Nelson, Commiss ione r

1/
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 exerc ise the
powers of the Commission.

507

Distribution
Robert W. Pollard, Esq.
J im Walter Resources , Inc.
P.O . Box C- 79
Birmingham, Alabama 35283
Ms. Joyce Ranula
United Mine t.J'orkers of America
900 15th St., N.W.
Washington, D.C . 20005
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Revie~v Commission
1730 K Street, N.W.
Washington, D. C. 20006

5 08

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

April 29, 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos . \,'EVA 84-166
WEVA 84-9 4- R

SOUTHERN OHIO COAL COHPANY

BEFORE :

Backley , Acting Chairman; Lastowka and Ne l son , Commiss i oners
DECI SION

BY THE COHMIS SION :
This consolidated proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 ~seq. (1982), presents issues
concerning the applicability to coal-carrying belt conveyors of the
safeguard provisions of 30 C.F.R. § 75 . 1403 . !/ A Commission administrative
1/
30 C. F.R. § 75.1403 repeats section 314(b) of the Mine Act , 30
U.S.C . § 874(b), and states:
Other safeguards adequate, in the judgement of an authorized
representative of the Secretary [of Labor], to minimize hazards
with respect to transportation of men and materials shall be provided.
The procedures by which an authorized representative of the Secretary
may issue a citation pursuant to section 75 . 1403 are described in 30
C.F.R. § 75.1403-l(b) .
The authorized representative of the Secretary shall in writing
advise the operator of a specific safeguard which is required
pursuant to § 75.1403 and shall fix a time in which the operator
shall provide and thereafter maintain such safeguard . If the
safeguard is not provid~d within the time fixed and if it is not
maintained thereafter, a notice shall be issued to the operator
pursuant to section 104 of the Act.
30 C.F.R. §§ 75 . 1403-2 through 75 . 1403- 11 set forth specific "criteria"
by which authorized representatives are guided in requiring safeguards.
Section 75.1403- 5 is headed: "Criteria--Belt conveyors" and section
75.1403- S(g) states in part:
A clear travelway at least 24 inches wide should be provided on
both sides of all belt conveyors installed after March 30, 1970 .

509

law judge conc luded that section 75.1403, in relevant part, applies to
coal-carrying belt conveyors, that the citation issued to Southern Ohio
Coal Company ("SOCCO") fell within the proscription of an underlying
safeguard notice to provide 24 inches of clearance on both sides of belt
conveyors, and that SOCCO therefore violated section 75 . 1403. 6 FMSHRC
2685 (November l984)(ALJ) . Consistent with our decision in Jim Walter
Resources, Inc. , 7 FMSHRC
, Docket No. SE 84- 23 (decided this same
date) ("Jim \olalter Resources-1") , we affirm the judge's conclusion that
section 75.1403 extends to the transportation of coal on coal- carrying
belt conveyors. Ho~.;rever. for the reasons stated below, v1e reverse the
judge's conclusion that a violation of section 75.1403 occurred .
On September 14 , 1978. during an inspection of SOCCO's "M.artinka No.
1 underground coal mine , MSHA inspector Dominick Poster issued notice to
provide safeguard No. 018 972 pursuant to section 314(b) of the Mine Act
and 30 C.F.R. § 75.1403. The notice stated:
A clear travelway at least 24 inches along
the No. 1 conveyor belt was not provided at three
(3) l ocations, in that there \vas fallen rock and
cement blocks .
All conveyor belts in this mine shall have at
least 24 inches of clearance on both sides of the
conveyor belts.
This is a notice to provide safeguards.
On November 30, 1983, during a regular in.s pection of the same mine, MSHA
inspector Harry Marksley, Jr. issued the citation at issue here alleging
a violation of section 75.1403. The citation stated:
A clear travelway of 24 inches was not provided
along the 1-1 east conveyor belt for a distance of
15 feet in that water was 10 inches in depth from
rib to rib at the No . 7 stopping . A slipping and
stumbling hazard .
At the hearing before the Commission judge, witnesses for both
parties agreed that the cited 1-l east belt conveyor -v1as used to transport
coal only , and that the distance between the belt and the ribs along both
sides of the conveyor was at least 24 inches. The witnesses also agreed
that the water described in Inspector M&rksley ' s citation extended from
rib to rib for a distance of 15 feet. HSHA's witnesses measured the
depth of the water at one point as 10 inches. They also testified that
the water, in combination with the fireclay bottom, rock dust and mud in
the area, created a serious slipping and stumbling hazard fo r the examiners,
maintenance men, inspectors and workers who regularly trave led the belt
line . Inspector Marksley testified that damp ~ottom conditions were not

510

unusual at this mine , and that the water present probably resu l ted from
seepage through the bottom. No debris was found beneath the surface of
the water. SOCCO ' s witness estimated the water's depth as seven inches,
and testif ied that the bottom was firm and not slippery .
In his decision, the judge found it unnecessary to resolve \.;rhether
coal is a "material" within the purview of 30 C.F.R. § 75.1403. Instead,
he resolved the issue of the standard's applicability by determining
that " the safeguard standard applies • • • to minimizing hazards associated
w1th the tra.ns portat i0n o f men and materials by foot, in this cc:.se
miners traveling along the \oTalkway adjacent to the moving conveyor
belt . " 6 FMSHRC at 2687 . Analyzing the citation and underlying s:.!.feguard
notice, the judge f ound that. even under a strict construction of the
safeguard notice , the water presented no t only a "slipping" hazard but
also a "tripping and stumbling" hazard . 6 FMSHRC at 2687-88. The j udge
reasoned that although " fallen rock" or "cement blocks ?u the items
specifically referred to in the safeguard notice ~ and other similar
debr i s 'tvere not found in the water, it could 11 reasonably be inferred
from the evidence that such debris could very well come to rest under
the water from the adjacent ribs . " 6 FMSHRC at 2688. The judge concluded
that the safeguard notice , in essence ~ required a clear travelway of 2L~
inches on both sides o£ the beltline, and that the cited travelway \.;ras
not clear due to the obstruction caused by the water . Id .
On review, SOCCO argues that the references in section 314(b) of
the Mine Act and in section 75 .1403 to the "transportation of men and
materials" refers only to the movement of persons and materials other
than coal . SOCCO therefore contends that section 75 . 1403 and its subsection -5(g) do not apply to the transport of coal on coal-carrying
belt conveyors . SOCCO further argues that even if the Commission decides
that the relevant safeguard provisions of section 75 .1403 apply to
coal-carrying belt conveyors, safeguard notices are to be strictly
construed . SOCCO asserts that the safeguard provisions of the Act and
the Secretary's regulations confer extraordinary authority on the Secretary .
SOCCO urges that to avoid abuse of that authority, notices to provide
safeguards must be ~rritten with s uch precision and specificity as to
leave no doubt as to the cond i tions or hazards proscribed.
For the reasons set forth in our decision in Jim Halter Resources I,
we conclude that section 75 . 1403, and its subsection - S(g), are applicable
to coal-carrying belt conveyors. As explained in Jim \-lalter Resources I,
this provision applies to trackless haulage by all conveyors. Thus,
while we agree with the judge in result on this point, "tole do not rest
our conclusion on his rationale that section 75 . 1403- S(g) encompasses
transportation of materials by foot.

511

We further hold that the language of notices to provide safeguards
must be narrowly construed, and that under a proper construction of the
underlying safeguard notice in this case, the instant citation must be
vacated .
It is of paramount importance to recognize the crucial difference
in the rules of interpretation applicable to mandatory standards promulga ted
by the Secretary and those applicable to "safeguard notices" issued by
his inspector . This Commission pr evious l y has recognized that, in light
of the underlying purpose of the Mine Act, mandatory standards are to be
construed in a ma.nner that effectuates, rather than frustrates, their
intended goal. See, e.g., Allied Chemical Corp., 6 FMSHRC 1854, 1859
(August 1984}; cTeveland Cliffs Iron Co., 3 FHSHRC 291, 294 (February
1981) . Mandatory s tandards, however, are adopted through the notice and
comment rulemaking procedures set forth in section 101 of the Hine Act.
Section 314(b) of the Mine Act, on the other hand, grants the Secretary
a unique authority to create what are, in effect, mandatory safety
standards on a mine-by-mine basis without resorting to otherwise required
rulemaking procedures. We believe that in order to effectuate its
purpose properly, the exercise of this unusually broad grant of regulatory
power must be bounded by a rule of interpretation more restrained than
that accorded promu lgated standards. Thus, >ve hold that a safeguard
notice must ident i £y t·l ith specificity the nature of the hazard at ~.;rhich
it is directed and the conduct required of the operator to remedy such
hazard. We further hold that in interpreting a safeguard a narrow construction of the terms of the safeguard and its intended reach is required.
See, e.g ., Consolidation Coal Co. , 2 FMSHRC 2021 , 2035 (July 1980)(ALJ);
Jim waJUter Resources, 1 FMSHRC-r3l7 , 1327-28 (September 1979)(ALJ) . See
also Secretary's Brief to the Commission .at 11 n . 1 . (''Accordingly,
while the language of safeguard ·notices should be narrowly construed,
the Secretary ' s issuance authority must be interpreted broadly").
We believe that this approach towards interpretation of the safeguard
provisions strikes an appropriate balance between the Secretary's authority
to require additional safeguards and the operator's right to notice of
the conduct required of him . \.fe further believe that the safety of
miners is best advanced by an interpretive approach that ensures that
the hazard of concern to the inspector is ful ly understood by the operator,
thereby enabling the operator to secure prompt and complete abatement. 11

2/
The requirements of specificity and narrow interpretation are not a
license for the raising or acceptance of purely semantic arguments .
See, ~·, Penn Allegh Coal Co . , 4 FMSHRC 1224, 1226 (July 1982). \.fe
recognize that safeguards are written by inspectors in the field, not by
a team of lawyers.

512

Applying these principles to the case before us , we must next
decide whether the notice to provide safeguard at issue here, referencing
"fallen rock and cement blocks at three locations, " and requiring 24
inches of clear ance on both sides of the conveyor belt should have put
SOCCO on notice that conditions such as the water described in the
citation fell within the safeguard's prohibitions. We conclude that it
did not.
The underlying safeguard notice was issued by an inspector concerned
with the presence of cement blocks and rocks in a travelway. The presence
of these solid objects in the walkway ,.,ould present an obvious stumbling
hazard and, depending on the amount of material or debris, could prevent
passage altogether. Abatement of the identified condition could readily
occur by removal of these objects. Similar physical impediments to safe
travel have been the subject of identical safeguards issued at other
mines. See, e.g. , Jim Walter Resources, 6 FMSHRC 1815 (July 1984)(ALJ)~
rev'd on other grounds, 7 FMSHRC ____ , Docket No. SE 84-23, April 29,
1985 . Under the rule of interpretation enunciated above, further
instances of physical obstructions in travelways, whether rocks, cement
blocks, or other objects such as construction materials , mine equipment,
or debris would f all within the scope of the safeguard .
The alleged obstruction cited in this case, an accumulation of
water , was neither specifically identified in the safeguard notice,
suggested thereby , nor in our opinion even contemplated by the inspector
when he issued his safeguard notice.
presence of water in an underground coal mine is not an unusual condition; it sometimes results from
its introduction into -the mining process, but often it is caused by
natural ground conditions. The record in this case indicates that
natural water seepage was common at this mine, particularly at the
location involved . Given the frequency of wet ground conditions in the
mine, and the basic dissimilarity between such conditions and solid
obstructions such as rocks and debris, we find that SOCCO was not given
sufficient notice by the underlying safeguard notice issued in 1978 that
either wet conditions in general or the particular conditions cited in
1983 by the inspector in this case would violate the underlying safeguard
notice's terms.

The

do not hold that a safeguard notice pertaining to hazardous
conditions caused by wetness could not be issued. Conditions such as
those cited by the inspector here, if hazardous , can just as readily be
eliminated by issuance of safeguard notices specifically addressing such
conditions . By taking this approach rather than bootstrapping dissimilar
hazards into previously issued safeguard notices , the operator's right
to notice of conditions that violate the law and subject it to penalties
can be protected with no undue infringement of the Secretary's authority
or loss of miner safety .
\~e

513

For the foregoing reasons, we affirm the judge's finding that
section 75.1403 applies in this case, but we reverse his conclusion that
SOCCO violated section 75.1403. The civil penalty assessed by the judge
for this violation is accordingly vacated. 11

~

~

Richard V. Backley. Acting Chairman

~
~~-i

'-fA

L. Clair Nelson, Commissioner

11

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

514

ADMINISTRATIVE LAW JUDGE DECISIONS

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

April 1, 1985

CIVIL PENALTY PROCEEDING

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

Docket No . WEST 84-17-M
A. C. No . 04-04643-05501
Sylva Sand & Gravel Mine

v.

SY LVA SAND & GRAVEL ~ INC. ,
Respondent
DECISiON
Appearances :

Marshall P. Salzman ~ Esq ., Office of the
Solicitor, U. S. Department of Labor 9 San
Francisco . Californi a for Peti ti one r .

Before :

J ud g e

~~ e r ·1 i n

The Solicitor filed a proposal for the assessment of c1v1 I
penalties for three alleged violations dated December 5, 1983 in
the above-captioned action. On December 6, 1983 the operator
wrote me, stating that it wished a hearing.
On August 24, 1984 an Order of Assignment was issued assigning this case to me. The Order of Assignment was mailed Cert i fied Mail and the file contains the green certified card signed
by the operator indicating it received the Order of Assignment.
Thereafter on September 21, 1984 a Notice of Hearing was issued
and on November 21, 1984 an Amended Notice of Hearing was issued.
The operator•s copies of both notices were returned unclaimed.
Pursuant to the Amenderl Notice of Hearing a hearing was held
on February 6, 1985. The Solicitor appeared but the operator did
not. The Solicitor withdrew the penalty petition with respect to
one of the citations. The inspector testified regarding the rema i ning two citations. Citation No. 2088036 was issued for a
violation of 30 C.F.R. § 50.10, a failure to notify MSHA of an
ac c ident . The inspector•s description of the accident in which a
mi ner•s arm was caught in a conveyor belt adequately established
a prima facie case that the occurrence fell within the mandatory
standard and that there was a violation. Citation No. 2088038
arising out of the same accident was issued for a failure to
guard the head pulley of the conveyor belt . Here too, the
in spector•s recitation of the accident sufficiently made out a
prima facie case that the required guarding was not present and
that a violation occurred.

515

After the hearing a show cause order was issued requiring
the operator to show cause why it should not be he l d in default
for failure to appear. 29 C. F.R. § 2700."63. The operator re sponded to this show cause order stating he was not notified of
the hearing on February 6, 1985. He further advised t hat he had
moved over 10 months ago and that the hearing notices were not
sent to his new address. Finally, he alleges that the last
notice he received was a show cause order requirina the Solicitor
to file a penalty petition.
The operator must be held i n de f ault . Acc or d in g t o his own
admis s ion he moved several mont hs ago . He kn e w a case wa s
pendin 9 agains t him . Contrary t o his assertio n, th e la s t t h ~ n g
he received was not the show cause or der direc te d to the
Solicitor dated January 12, 1984 but the Order of Assiqnmen t
dated August 24, 1984. I t was the ope r ator's r esponsibi lity t o
give writte n notice of hi s change of addr e ss . 29 C. F. R. § 270 0 . 5 .
The Commission had no way of knowi ng where he move d. Hav i ng
failed to notify the Commission of his new address th e operator's
complaints in his letter of March 18, 1985, are without merit.
I t is Ordered that the operator is i n de fault and t hat t he
propose d penalties of $100 for Ci ta tion No . 20 8803 6 and $50 0 fo r
Citation No . 20888038 are f inal .
The operator is Ordered to pay $600 wi thin 30 days of the
date of this decision.

Chief Administrative Law Judge
Distribution
Marshall P. Salzman, Esq . , Office of the Solicitor, U. S.
Department of Labor, 11071 Federal Building, 450 .Golden Gate
Avenue, Box 36017 , San Francisco, CA 94012 {Certified Mail)
Mr. Eugene Sylva, Sylva Sand & Gravel , Inc. , 5061 Oro Dam
Boulevard, Oroville, CA 95965 {Certified Mail)
/g l

·516

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

. ..........
22041

t.v. -· ..

t . '

. ·,

CIVIL PENALTY PROCEEDING
Docket No. KENT 84-89
A.C. No. 15-10339-03526

v.

Pyro No . 11 Mine

PYRO MINING COMPANY ,
Respondent
DECISION
Appearances:

Darryl A. Stewart; Esq.? Office of- the
Solicitor, U.S. Department of Labor,
Nashville , Tennessee 1 for Petitioner;
William Craft ~ Assistant Director of
Safety u Pyro Mining Company 7 Sturgis :
Kentucky , for Respondent .

Before:

Judge Fauver

The Secretary of Labor brought this action for civil
penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 u. s .c. § 891 , et seq. The case
was heard in Lexington, Kentucky. Having-considered the
evidence and the record as a whole, I find that a
preponderance of the substantial, reliable, and probative
evidence establishes the following:
FINDINGS OF FACT
l.
Respondent's Pyr~ No. 11 Mine . is an underground
coal mine used in connection with its Pyro No. ~ Mine to
produce coal for sale or use in or affecting interstate
commerce.

2. The parties have stipulated that Pyro Mining
Company is subject to the provisions of the Act, that the
Pyro No. 11 Mine is part of a division that produces approximately
1 .5 million tons of coal ··annually, that Pyro Mining Company ' s
previous history of violations would not be a significant
factor in this case, that the assessment 9f the penalties in
this case would not impos'e a financial hardship on ·Respondent's
ability to remain in business, and that Respondent acted in
gooq faith in abating the alleged violations cited in the
citations involved .

517

3. On December 7, 1983 , MSHA Inspector Paul 0 . Lee
inspected part of Respondent ' s Pyro No. 11 Mine and issued
Citation No . 2217258, alleging a violation of 30 C.F.R. §
75.507 , which provides:
Except where permissible power connection
units are used, all power-connection points
outby the last open crosscut shall be in
intake air.
Inspector Lee issued the citation on the ground that
return air, air that had been used t o ventilate the active
workings of Pyro No. 9 Mine, was a llowed to mix with neutra l
air flowing through a track entry in Pyro No. 11 Mine where
there were nonpermissible motors on the conveyor belt drives.
By using an anemometer, Inspector Lee determined that approximately
11 , 000 cfm of return air was being dumped in t o neutral air
at the first main east entry overcast where it intersects
with the second north main entry.
Inspector Lee determi ned
that the return air was mixing with the neutra l air in part
because Respondent had removed stoppings and had failed to
replace them.
4. On December 14 , 1983 , MSHA Inspector Paul 0. Lee
inspected part of Pyro No . 11 Mine and issued Citation No.
23 38301, alleging a violation of 30 C . F.R. § 75 . 507 .
Inspector Lee issued the citation on the ground that
return air, air t hat had b een used to venti l ate the active
workings of Pyro No . 9 Mine, was allowed to mix with neutral
air flowing through a track entry in Pyro No. 11 , where there
was nonpermissible electrial equipment, i . e. a battery
charger and electric water pumps.
Inspector Lee used an
anemometer in determining that approximately 11,500 cfm of
return air was being dumped into neutral air at a damaged
overcast at the first east panel off the first submain north
entry .
DISCUSSION WITH
FURTHER FINDINGS
I find that the Secretary proved each charge by a
preponderance of the evidence.
Inspector Lee was justified

518

in relying upon Respondent'~ mine maps and his site
inspections of Pyro No. 11 Mine in determining the two
violations charged .
He was not required to go into Pyro
No. 9 Mine to verify the active workiq~s and return air
course shown on the maps for No. 9 Min~.
Both violations were due to negligence, because they
could have been avoided by the exercise of reasonable care .
They were serious violations because of the risk of a methane
build-up and explosion by methane contact with nonpermissible
equipment.
/

Considering the criteria for assessing a civil pena l ty
under secti6n llO(i) of the Act, I find that an appropriate
civil pen alty for each violation is $260.
CONCLUSIONS OF LAW
l,

The Commission has jurisdiction in this proceeding .

2. Respondent violated 30 C.F.R. § 75.507 as charged
in Citations Nos. 2217258 (December 7 , 1983) and 2338301
(December 14, 1 983) and is ASS ESSED a ~ivil penalty of
$260 for each violation.
ORDER
WHEREFORE IT I S ORDERED that Respondent shall pay civil
penalties in the total amount of $520 within 3"0 days of t h is
Decision.

/.ltt~~V0__
Lqflliam Fau ver
Administrative Law Judge
Distribution:
Darryl A. Stewart, Esq. , Office of the Solicitor, u. s.
Department of Labor , 280 U. S. Courthouse, 801 Broadway,
Nashville , Tennessee 37203 (Certified Mail)
William Craft , Assis t ant Director Safe t y, _Pyro Mining
Company , P.O. Box 267, Sturgis , Kentu cky 42459 (Certified
Mail)

/kg

519

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

1985
VENBLACK , INC. ,
Contestant

CONTEST PROCEEDING
0
0

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

g

Docket No. WEVA 84-152-R
Citation No . 2124861~ 2/22/84

g

Austin Black Plant

CIVIL PENALTY PROCEEDING
g

Docket No. WEVA 84-313
A.C. No . 46-03319-03503

~

Aus t:n Black Pl ant

v.
VENBLACK u INC. fl
Respondent

0

0

DECISION GRANTING CONTEST AND
DISMISSING PENALTY PROCEEDINGS
Appearances: George v. Gardner, Esq.~ and J. Edgar Bailyu Esq. 0
Gardner , Moss & Brown u Washington v D.C.v
for Contestant/Respondent:
James B. Crawford, Esq. ,, Office of the Solicitor,
U.S. Department of Labor u Washington, D.C.,
for Respondent/Petitioner.
Before:

Judge Lasher

A preliminary hearing on the r eccrd to determine
jurisdiction was held in Falls Church , Vi rginia on October 17 /l
1984 .
This matter is comprised of a contest proceeding filed by
VenBlack, Inc . , (herein VenBlack) , on March 26, 1984, under
Section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c . § 801 et seg., (herein the Act), and a civil penalty
proceeding initiated by the Secretary of Labor on August 10,
1984, by the filing of a proposal for assessment of penalty
pursuant to Section 110 of the Act.

520

The penalty docket involves eight citations including
Citation No . 2124861 1; dated February 22, 1984 , which is the
subject of the contest proceeding . The contest and penalty
dockets were consolidated for processing, hearing and decision by
my order of September 6, 1984.
The issue is whether VenBlack is the "operator" of a "coal
or other mine " and thus subject to the Act. That determination
must be made through interpretation of sections 3(d}, 3(h}(l} and
(2}, and 4 of the Act.
30 u. s .c . §§ 802Cd) /l (h)(l} and (2} 0 and
803, to wit:
Sec . 3 . For the purposes of this Act , the term ·~

*

{d ) . " Op erator" means an y owne r , l essee , or o ther
person who operates , controls r or superv i ses a coa l
or other mine or any independent contractor performing
services or construction at such mine ;
·.::

*

(h)(l) . "Coal o r other mine 11 means (A) an area o f
land-from which minerals are extracted in nonliquid
form or, if in liquid form, are extracted with workers
underground, (B) private ways and roads appurtenant to
such area, and (C) lands, excavations, underground
passageways, shafts, slopes, tunnels and workings,
structures, facilities , equipment, machines, tools, or
other property including impoundments, retention dams ,
and tailings ponds, on the surface or underground, used
in, or resulting from, the work of extracting such
minerals from their natural deposits in nonliquid form,
or if in liquid form, with workers underground, or used
in, or to be used in, the milling of such minerals, or
the work of preparing coal or other minerals, and in cludes custom coal preparation facilities .
In making
a determination of what constitutes mineral milling for
purposes of this chapter, the Secretary shall give due
consideration to the convenience of administration resulting from the delegation to one Assistant Secretary
of all authority with respect to the health and safety
of miners employed at one physical establishment;

1/ Citation No . 2124861 charges VenBlack with failure to file a
legal identity report in violation of 30 C.F.R . § 41.1.

521

(~)(~) .
For purpoS <=~ (,J: ti~lp s n , JJ I , a :·,d IV ,
cut::. l
mine." means an area a t l a nd all .s ·c ruct..ur es , facilitie.s,
machinery, tool s , eq ui pm~ nt , sha fts , slopes , tunnels ,
excavationsv and other property , real or personal,
placed upon, under, or above the surface of such land
by any person, us ed in, or to be us e d i n , or resu lti ng
from , the work of extract i ng in such area bituminous
c o al, li gn i te, or an t h ra c i te from it s natural deposits
in the earth by any means or me thod, and the work of
prepar ing the coal so extracted, and inc lu d es custom
coal preparation faci l it i eSi

*
Sec. 4 . Ea ch coal or other mi ne , the products of whic h
enter commerce f or the operations of products of whic h
affect commerce ~ and each operator o f such mine v and
every miner in such min e shall be subject to the provisi ons of this Act .
PRELIMINARY FINDINGS
VenBlack was incorporated in West Virginia in September 1983 .
In October 1983 , VenBlack purchased t he Chemical P roducts
Division of Slab Fork Coa1 C ompan :{~ whic h was in b ankruptcy ( '!':r ..
96; Ex . c -1 ). Slab Fork p revious l y h ad operated what might b e
termed a completely integr ated coal mine at Tarns, Wes t Virginia q
where coal was actually extracted from the ground and then
totally prepared in its Preparation Plant where it engaged in
breaking, crushing, sizing , cleaning, washing, drying and mixing
the coal. The Chemical Products Division , i .e. , the manufacturing plant which was the only part o f the Slab Fork operation
purchased by VenBlack, was , and is, called the Austin Black Plant
and is located on the same premises where t he Slab Fork mine and
Preparation Plant previously was located. VenBlack did not
purchase the underground mine of Slab Fork or the Preparation
Plant.
In its operation of the Austin Black Plant, Slab Fork
obtained the necessary prepared coal from its own Preparation
Plant which had been extracted f rom t he Slab Fork mine. All
three operational phases previously were inspected and regulated
by MSHA. ~/ As noted below, VenBlack obtains its "unique ,"
carefully selected and prepared coal from outside coal producers
through brokers .

2/ The historical regulatory pattern is not deemed relevant
since the ultimate determination to be made here must be based on
the nature of · the ope ration as it now exists rather than on an
entirely differ ent configuration in the past. MSHA's regulation
of the venBlack plant in the recent past does indicate its
expertise in such regulation and permits the inference that it
would be administratively convenient for it to continue such.
Administrative convenience is, of course, but one of the factors
to be considered.

Slab Fork's entire operation at Tams , West Virginia, has
been closed and Slab Fork has ceased all operations of the
property (Tr. 96). Slab Fork doe s act as a coal broker, selling
already prepared coal it has obtained from entirely independent
coal mine operations (Tr. 96}. One of its customers is VenB l ack .
VenBlack has no other business arrangements, contracts, or
dealings directly with Slab Fork {Tr . 96}. VenBlack's sole
business is the operation of the Austin Black plant where it
converts already prepared coal to the product known as Austin
Black which it then bags and sells to the tire and rubber
industry which uses it as an additive, extender, and "chemical
filler" in compounds used to make rubber {Tr . 57, 90p 97,
104-105). The coal purchased on the "outside " market (Tr. 89)
through Slab Fork and from other suppliers (Tr. 109 , 110} by
VenBlack for this purpose mainly from the Maben Energy plants
at the Pocahontas Coal vein in West Virginia has already been
prepared by breaking , crushing, sizing, cleaning r washingu drying
and mixing to an exact specification designated by VenBlack {Tr .
68-72). This coal has additional uniqueness since it must also
be (l) bituminous , and have chemical properites and be of a
character common to only approximately 5% of the coals that are
available (Tr. 120, 121, 133). Upon its arrival at VenBlack's
plant, samples of this raw coal are first tested to insure that
it meets VenBlack 9 s specifications 9 including those pertaining to
chemical composition (Tr . 85v l33 p 134) .
The prepared coal , which must be sized in particles of no
more than half-inch, is delivered to VenBlack by a contract
hauler {Sullivan) who delivers it by truck (Tr. 23 , 89 , 110, 111).
It is first placed in a " truck bin " or raw coal storage silo .
Subsequently, it is transported through a network of conveyors
<Tr. 111) by conveyor belt and it finally ends up on a 1 , 000 - ton
silo where it is stored (Tr. 113) . From the storage silo it is
transported by conveyor belt to a nearby tipple where it is
"scooped off the belt '' and put into two small " tanks" or silos
(Tr. 113, 114).
From the two small silos the coal, of approx imately the same
half-inch size as that delivered by Sullivan , is then run into
the top of a six- story plant and down a chute into the "mill "
(Tr. 115-117). On the way it enters a "hammer mill " which
ensures that no particle exceeds the half-inch requirement . ~/
The coal then enters a unique (Tr. 117) air mill grinding process
which reduces the coal particles to a fine dust having the
consistency of talcum powder (~r. 32, 118, 128) called Austin
Black (Tr. 119>. Once the small coal particles enter the
grinding stage high- pressure air " bangs " the particles against
each other in a closed system resulting in their reduction to
powder {Tr. 32, 90, 117- 119) . This " unique " (Tr . 120) product is

3/ The hammer mill in effect "crushes " particles of coal which
exceed half-inch down to suitable size . Approximately 10% of the
coal entering the process is reduced in size by th i s method (Tr.
122, 123).

52 3

then bagged (forced by high-pressure air into either plastic or
paper bags) according to the needs and specifications of the
ultimate purchasers/users. Once the product is bagged, it is
transported to a "palletizer" (Tr. 33, 34, 90, 106) over a conveyor system, where the bags are stacked uniformly on a pallet
after the air has been squeezed out (Tr. 35) to be loaded on
trucks with fork lifts (Tr. 90).
VenBlack has only eight employees, including a fork lift
operator, a wrapper, a bagger, a palletizer , a compressor
supervisor, and a plant manager . Two employees in these
occupations work at night and five work in the daytime . The
plant manager is the eighth employee .
VenBlack is classi f ied by the State of West Virginia as a
manufacturing company ; coal mining has a different classif i cat i on
(Tr . 125-126) . A competitor u Harwood Chernical u p roduces a
product <Kof i l 500) similar to Austin Black and i s regu l ated by
OSHA.
Harwood Chemical is l ocated approximately 1 0 miles from
VenBlack <Tr. 101).
MSHA and the Occupational Safety and Healt h Adminis t rat i o n v
both divis i on s of the Department o f Labor have ente r e d int o an
agreement ( " InterAgency Agreement ") to del i neate the i r au t hor ity
and jurisdiction . The InterAgency Agreement 6 44 F . R. 22827-2283 0
(April 17, 1979), insofar as it relates to "milling," and aside
from references pertinent to 1977 Mine Act provisions, provides:
Mining and Milling:
Mining has been defined as the science, technique,
and business of mineral discovery an exploitation.
It entails such work as directed to the severance of
of minerals from the natural deposits by methods of
underground excavations, opencast work, quarrying,
hydraulicking and alluvial dredging. Minerals so excavated usually require upgrading processes to effect
a separation of the valuable minerals from the gangue
constituents of the material mined. This latter process is usually termed "milling" and is made up of
numerous procedures which are accomplished with and
through many types of equipment and techniques.
Milling is the art of treating the crude crust of the
earth to produce there from the primary consumer derivatives. The essential operation in all such processes is separation of one or more valuable desired
constituents of the crude from the undesired contaminants
with which it is associated.
A Crude is any mixture of minerals in the form in which
it occurs in the earth ' s crust. An ORE is a solid containing valuable constituents in such amounts as to

524

constitute a promise of possible profit in extraction,
treatment , and sale . The valuable constituents of an
ore are ordinarily called valuable minerals, or often
just minerals ; the associated worthless material is
called gangue.
In some ores the mineral is in the chemical state in
which it is desired by primary consumers, e . g. ,
graphite, sulphur, asbestos, talc, garnet. In fact,
this is true of the majority of nonmetallic minerals.
In metallic ores, however, the valuable minerals in their
natural state are rarely the product desired by the consumer , and chemical treatment of such minerals is a
necessary step in the process of beneficiation . The end
products are usually the result of concentration by the
methods of ore dressing (milling) followed by furt her
concentration through metallurgical processes . The
valuable produce of the oredressing t reatment is called
Concentrate; the discarded waste is Tailing .
(Emphasis supplied)
Milling- MSHA Authority
Following i s a list with general definitions o f mil l ing
processes f or which MSHA has authority to regulate subject to Paragraph B6 of the Agreement . Milling consists
of one or more of the following processes: crushing,
grinding, pulverizing, sizing, concentrating, washing ,
drying, roasting, pelletizing, sintering, evaporati ng ,
calcining , kiln treatment, sawing and cutting stone, heat
expansion, retorting (mercury), leaching, and bri quetting.
Crushing
Crushing is the process used to reduce the size of
mined materials into smaller, relatively coarse
particles. Crushing may be done in one or more stages,
usually preparatory for the sequential stage of grinding, when concentration of ore is involved.
Grinding
Grinding is the process of reducing the size of a mined
product into relatively fine particles.
Pulverizing
Pulverizing is the process whereby mined products are
reduced to fine particles, such as to dust or powder
size.

525

Si ;·in.-.
Si~ing is th~ proce~L of s~pLr~ting ~articles of mixed
sizes into groups of particles of all the same size,
or into groups in which particles range between maximum
and minimum sizes.

h'ashinq
Wa sh ing is the proce ss of cle~ni~3 ~inE ra l products
b y th e buoyant actio n of flowing water .
Drying
Drying is the process of removing uncombined water
from mineral products, ores, or c oncentrates , for
example, b y t he application o f heat , in air-actuated
vacuum type filt ers 1 or by pressure type equipment.
Pelletizing
Pelletizing is the process in which finely divided
material is rolled in a drum , cone g o r on a n inclined
disk so that the particles cling t ogether and r o ll up
in to small spherical pelletes, This process i s applicable to milling only when accomplished in relation
to, and as an integral part of, other milling processes .
(Emphasis supplied.)
The health and safety hazards inherent in VenBlack's
operation and the correlative enforcement objective of MSHA was
described by Inspector Blevins as follows:
Well, the inherent hazard, or the inherent problem
with this type of an operation is they intentionally
produce a 200 to 300 mesh product, and that in turn
is hard to control in transferring the material to
different locations where it is to be processed and
bagged for sale.
Q.
So what is the enforcement problem there , if there
is one, or condition that you are most concerned with?
A. Wellr I deal with respirable dust , that's exposure
of the employees.
I deal with accumulation to fine coal
explosive dust .
Q.

Wha t can happen there as far as that goes?

A. Well, when you deal with a real fine float dust,
there is a hazard of explosions, which there is always
on-going problem of Black Lung or the respirable dust
that workers are exposed. {Tr. 25).

526

Summary of Contentions of the Parties
I.

The Secretary

A. In view of (1) the list of milling processes contained
in the Interagency Agreement, supra, and (2) the provision of
Section 3(h)(l)(C) of the Act that all facilities "used in or to
be used in the milling of such minerals , or the work of preparing
coal or other minerals, and (including) custom coal preparation
facilities" are within the Act's definition of "a coal or other
mine," and since the Austin Black plant processes coal by milling
(through crushing and pulverizing) in order to meet customer coal
specifications or market specifications , the plant i s a " coal
mine."
B . There is no requirement that the operat o r o f a
" processing or preparation facility " must actuall y e x tract c o al ,
nor i s there a requirement that t he coal be prev i ous ly un p r epa r e d
before it reaches a "secondary preparation facil i ty" f or the
second facility to be considered a mine under the Act.
C.
(1) Section 3(h)(l ) of the Mine Act a l so prov ides t ha t
in making his determination of what constitutes m i ~ ~r al mi l li ng
" the Secretary shal l give due consideration t o the c ~nvenience of
administration resulting from the delegation to one Ass i stant
Secretary of all authority with respect to the health and safety
of miners employed at one physical establishment." (2) MSHA has
demonstrated expertise in inspecting facilities similar to Austin
Black, has executed a continuing enforcement presence at such
facility, inspects several other mines and facilities in the
area, and has an MSHA office in close proximity to the Austin
Black plant.
D. The Occupational Safety and Health Act of 1970 is a
residual statute when another federal agency has authority to
regulate. Thus , Section 4(b)(l) thereof provides:
Nothing in the Act shall apply to working conditions
of employees with respect to which other Federal
agencies • • . exercise statutory authority to prescribe or endorse standards or regulations affecting
occupational safety and health.
II.

VenBlack

A. VenBlack is a customer, consumer and purchaser only of
coal already prepared to its specification , to be used in its
manufacturing processes and the product delivered to its
customers.

527

B. The Secretary ' s position (Tr. 14) that " all there is a
need to show that here is a processing of coal , that it is
processed, it is mixed, or is . . . crushed, or is • • • sized or
is • • • pulverized," over simplifies the issue; that if this
were so almost every consumer of coal would be declared by MSHA
to be a coal preparation faci+ity.

c. VenBlack, the same as the coking industry and utilities,
is not a coal preparation facility, does not "produce" coal and
should not be under the jurisdiction of MSHA .
D. The fact that MSHA previously inspected the facility
of the Slab Fork Coal Company and the process carried on at its
coal mine operation and preparation plant is not relevant Decause
only manufacturing is performed by VenBlack .
DISCUSSION AND ULTIMATE FINDINGS AND CONCLUSIONS
Early on the Secretary anticipated that toward the end of
the industrial chain as minerals move from extraction toward
their destination in the commercial market-difficulty would be
encountered in the classification of certain fir ms as mining
(i ncluding milling and coal pre~aration facilities) , manufac t u ring, or the ultimate consumer . ~/ In the instant proceeding the
Secretary has effectively shown that MSHA $s regulation of
VenBlack would be both convenient and expert . On the other hand ,
the record does not indicate that OSHA regulation thereof would
be inconvenient or lacking in expertise. Indeed, OSHA regulates
a nearby competitor, Harwood Chemical, which produces a product
simi lar to Austin Black , and coking plants handling a similar
type of coal (Tr. 101-103). Consequently, I do not find this
factor to tilt the scales one way or the other"
During the hearing and in its post-hear ing brieff the
Secretary also expressed the view that the mere engagement of a
business enterprise in any of the mechanical functions, i.e.,
"processes" listed in the Interagency Agreement under the heading

il

Paragraph B(3) of the InterAgency Agreement states :
"Appendix A provides more detailed descriptions of
the kinds of operations included in mining and milling
and the kinds of ancillary operations over which OSHA
has authority . Notwithstanding the clarification of
authority provided by Appendix A, there will remain
areas of uncertainty regarding the application of the
Mine ~ct, especially in operations near the termination
of the milling cycle and the beginning of the manufacturin_~ cycle . "

528

"milling , " automatically stamped the firm as a coal mine operator.
Thus, Inspector Blevins testifie0 that : If you "process coal,
then it comes under the jurisdiction of MSHA" (Tr. 56). The
Secretary, in opening argument, again took the position that all
that need be shown is that "there is a processing of coal," i.e.,
that it is mixed , crushed, sized, or pulverized . This contention
is found to be without merit .
There is no question but that VenBlack performs several of
the listed processes on coal incidental to its business purpose
of converting it, by unique mechanical means from the select,
highly prepared raw material it purchases from the coal industry
to its final co~nercial product which is considered a chemical
additive in the tire and rubber industry .
However, the
InterAgency Agreement provides a prerequisite characte ris tic to
any listed process being considered "milling," i.e. , that such
process bring about "separation of one or more valuable desired
constituents of the crude from the undesired contaminants with
which it is associated."
(Thus, under the Agreement, ~ mining o is
not a general engineering or industrial term, but is instead
vested with a specific meaning.)
Such is clearly not the case
with respect to VenBlack 1 s machine , the unique air mill
grinding process described herein above s; which pu l verizes but
does not " separate" desired constituents-from contanimants. An v
such "separation " has previously taken place in the coal
preparation plants , VenBlack's suppliers. It is manifest from
the portion of the Agreement quoted above that while processes
such as crushing, pulverizing , sizing, and storing, can be
milling, they are not as the Secretary contends, automatically
milling and thus in the regulatory domain of MSHA.
It is ultimately concluded that VenBlack is engaged in
manufacturing operations and that the position of the Secretary
that VenBlack is a secondary coal preparation facility is not
meritorious . The Federal Mine Safety and Health Review
Commission noted in its decision in Oliver M. Elam , Jr . , 4 FMSHRC
5 <1 982) that the 1977 Mine Act's definition of "coal preparat i on" was taken from section 3(i) of the 1969 Coal Act , 30
U.S.C. § 802(i)(l976), which definition in turn was updated from
the 1952 Coal Act . The Commission stated :

~/

Although referred to as a "grinding" process, the unique
machine which performs this operation more precisely "pulverizes"
the raw material-as that term is defined in the InterAgency
Agreement - since the product emerges with the consistency of a
fine powder .

529

"Although the legislative history of the 1969 Coal
Act sheds no light on the reasons for the 1969 Act's
modification of the 1952 Act's definition , we find
it significant that the types of activities comprising 'the work of preparing the coal' have consistently been categorized as 'wo rk •.• usually
done by the operator . ' Thus , inherent in the determination of whether an operation properly is classified
as 'mining' is an inquiry not only into whether the
operation performs one or more of the listed work
activities, but also into the nature of the operation
performing such activities. in E1am 1 s operations,
simply because it in some manner handles coal does
not mean that it automatically is a 1 mine : subject
to the Act."
{Emphasis added . )
Any incisive inquiry into the • nature " cf VenBlack t s
operation seemingly must reso lve the fundamental question of
whether it is producing coal--in this instance through the
process of milling it or "preparing" it--or is manufacturing a
sep arate ~ distinguishable product .
Three preliminary observations concerning VenBlack and i ts
product serve t o shed some light on this question. First u
although the Secretary with some creativity contends that
VenBlack is a "secondary" coal preparation facility, it is established in the record that the coal pieces purchased by VanBlack for its manufacturing purposes have already been carefully
and extensively prepared (by breaking, crushing, sizing,
cleaning, washing, drying and mixing to an exact specification),
having first been carefully selected for its chemical composition .
Secondly, it is noted that VenBlack's operation is two steps
removed from the coal mine operations which extracted the coal,
and one step removed from the remarkably detailed process at a
preparation facility. Finally, after going through VenBlack's
pulverizing process, this raw material has los t its "mineral"
identity as coal, having become a separate, distinguishable
product having an entirely different identity and commercial
purpose--as an additive and filler from the already refined
mineral raw material unloaded by Sullivan. Other than from the
exercise of tracing its originv it no longer is identifiable as
coal. ~/
6/

These are three of the bases upon which it is concluded that

~he VenBlack operation is to be distinguished from the "slate

gravel processing facility" found to be a mine in Donovan v.
Carolina Stalite Company, 734 F.2 1547 (D.C. Cir., 1984), which
is discussed further subsequently.

530

VenBlack clearly does not " produce coal," in the sense that
a mill , preparation plant , or commonly-perceived , "classic" coal
mine operator does . An interesting case for comparison is
Secretar y v. Alexander Brothers , Inc., 4 FMSHRC 541 <1982>
wherein the Commission, in finding Alexander Brothers to be a
coal preparation facility, pointed out that Alexander Brothers
<wh i ch was engaged in reclamation activities) did not dispute
that it undertook its processes (crushing, sizing, storing,
crushing , etc.> in order to make coal-bearing refuse marketable
" as coal." In contrast, it is clear that VenBlack undertakes its
manufacturing processes in order to make already extracted 9
already prepared , coal pieces into a distinct and unique product
for marketing as a chemical additive-not as coal .
~s the United States Cour t of Appeals for the District cf
Columbia Circuit points out in Carolina Sta lite, supra , every
company whose business brings it into contact with minera ls is
not to be classified as & mine within the meaning of section
3(h) J the jurisdictional line rests upon the distinction between
milling and preparation , on the one hand, and manufacturing on
the other ; classification as the former carries with it Mine Act
coverage ; classification as the lat ter results in Occupational
Safety and Health Act regulation.

Superficially , Carolina Stalite seems to s uppor t th6
Secretary ; s position since the slate and gravel proce ssing
facility owned and operated by the company was found to be a
" mine " . However, close examination of the Court's decision
therein raises various grounds for differentiation between
Carolina Stalite's business operation and that of VenBlack.
Carolina Stalite's "slate gravel processing facility" was
situated on property in North Carolina immediately adjacent to a
quarry owned and operated by another independent corporation u
Young Stone Company. Approximately 30% of the stone quarried by
Young was delivered to Carolina Stalite by means of conveyor
systems owned, operated and maintained by Young which was regulated by MSHA. Carolina Stalite then "bloated" the slate in a
rotary kiln with intense heat, creating a light-weight material
called " stalite" (its unregistered trade name) which was then
crushed and sized and sold by Carolina Stalite for use in making
concrete masonary blocks . In disagreeing with the Commission's
conclusion that Carolina Stalite was engaged in manufacturing
rather than mining 7; the Court delivered the primary thrust of
its rationale in the following· language:

7/ The Court determined that the Commission had incorrectly held
that the Act required a company actually to extract a mineral
before being subject to Mine Act jurisdiction.

531

t ~;· ·:r~~ ;,.: :. v(·,·: r:·!c~·~ .:~y C· ! .:; ; .. ~.!Y E! ::;;'· ' '· ·~!:C".. J(: , \ }!2: l :~ .igllt
i:cll oSl".:(· .:i:L U1f..· Co;r..,. f'[,icn .
2 ~.roli.na Stal ite C:ioes
not extr<>ct ths slate it process u: and , as the Comntission said, it s fa c i l ity cannot be considered a "min e in
the cl~;.sic sense .'' Bov:e-.·er , neitl1E:r do\::5 Carol ina
Stalit~ ma nnfact0r e concrete ffiasonry blocks , the pri rila.ry e1 :· o L" .e for f·: tc.lite, and i t is b y !10 means per vel·sG to c h~: r.c;.c t ~::. ~: izE: the Stalite fc: c) .l i ty as a mine.
'i'·!Je J:-;hy::::jcal prox:i~1i.ty ar,d o pe rati onc:: J integration of
Carol in~ Stal i te 2nd Young Stone, v-'hOf. c r.-lant is u n questionably subject to the Act, perrn i l those fac ili ties
to be viE.v.'E.d, in industrial and econor.: i c realitv, as
distinct from qu estions of legal title L o the premises ,
as a unified min eral processing operat )v r:. That consideration makes less artific i al th e statu te 7 s clea r
classification of Ca rolina Stalitels fa~ility as a mine ."
(Emphasis c-~oded)

By comparison, VenBlack can in no sense bs viewed as "a
unified mineral processing operation" with the operators who
extract its coal from the ground.
Nor can it ~inil arl y be vi e wed
as unified mineral processing operation with the coa l preparation
plants which there a fter prepared its coa l .
The following chart to some extent depict s the distinguishing features distinguishing venBlack f rom Carolina
Stalite .
CAROLINA STALITE

1. Extraction:

Carolina Stalite and Youn g Stone Comp any are
seen as a "unified " slate gravel processing facility wit h
physically contiguous premises with · Young doing the
extracting and delivery to Stalite , which mills the original
mineral .
Young is already regulated by MSHA .
2 . Delivery: Carolina Stalite ' s unrefined mineral is
delivered to it for processing by Young ' s conveyors as part
o f a unified , integrated slate gravel operation .
3 . Process Performed
on the Mineral:

Heat expansion, crushing, and sizing.

4 . Identity of original
Mineral after Processing :
original mineral extracted.

5 . End use of Product :
of concrete blocks.

Essentially the same as the

Stalite is used in the manufacture

VENBLACK
1. Extraction: VenBlack is not unified, physically
contiguous, or operationally integrated with any mine
operator engaged in extraction whether or not such is
regulated by MSHA. After extraction, the original mineral
is subjected to exhaustive preparation by
2o Independently owned and
Operated Preparation Plants : VenBlack is not unified ,
physically contiguous, or operational ly integrated with any
mine operator engaged in mineral preparation whether or not
such is regulated by MSHA.
3 . De livery g VenBlack ' s highly -prepared minera l r a w
material is delivered to it by an independent hauler .
4. Process Performed on
Original Mineral: Sampling for chemical compos i tion 0
storage 9 sizing {by crushing) ~ pulv erizing , and bagging o
5 . Identity of Original
Mineral after processing: Austin Black is no longer
coal, having become a separate chemical product.
6. End use of Product : As a chemical additive and filler in
the tire and rubber industry. ~/
The Court in Carolina Stalite made a final point with
respect to the determination of covered mine activity which must
be considered:
"Because the Act was intended to establish a " single
mine safety and health law, applicable to all mining
activity," S . Rep No. 461, 95th Cong. , 1st Sess. 37
{1977)(emphasis added) , its jurisdictional bases were
expanded accordingly to reach not only the "areas • • .
from which minerals are extracted ," but also the
"structures .•. which are used or are to be used in .• •
the preparation of the extracted minerals. " S.Rep . No.
181, 95th Cong . , 1st S~ss . 14 (1977) , U. S.Code Cong.
& Admin. News 1977, 3401, 3414. See also S.Rep. No.

8/

It might be said of stalite's relationship to the original

~ineral that "a rose is a rose by any other name ," whereas Austin

Black has become perfume.

533

461 . supra, at 38 (the bill "broadly defined mine to
include ••. all surface facilities used in preparing
or processing the r.tinerals"). Section 3(h) thus "contains amendments to the definitions in the [predecessor
statute] which reflect .•. the broader jurisdiction of
th(e] Act." S . Rep. No. 181 supra, at 14, U.S.Code Cong.
& Admin. News 1978, at 3414."
The question thus remains whether VenBlack's surface
facilities and structures are used in preparing or processing
minerals. It is concluded that inherent in the determination
that a process is "preparing" or "processing" (milling) minerals
is the proposition that at the end of the 9reparation or processing there must still remain a distinguishable minera l left
for marketing and sale as such mineral . This is one of the
salient factors differentiating manufacturing from
milling/preparing. If the mineral substantiall y loses its
original identity in such process or preparation a~d a separate ,
unique , clearly identifiable product emerges for sale and
marketing, then it would seem that the operation involved is
manufacturing r ather than mining .
In other words , the nature of
the business operation must be discerned and the retention o f.
mineral identity at the end o f the process i ng is necessar y t o the
conclusion that the operation i s engaged in mineral preparat i o ~
or mineral milling. Otherwise , the mere performance of any o f
the mechanical processes listed in the InterAgency Agreement on
any mineral would "automatically'' be construed as mining activity
rather than manufacturing.
Here, it is clear that VenBlack is not an integral part of a
unified extraction/mineral processing operation the extraction
part of which is already regulated by MSHA; the "convenience of
administration': factor does not weigh against either MSHA or OSHA
regulation ; the original mineral processed by VenBlack has, upon
completion of such process, lost its original identity and, in
economic reality, given way to a new product.
This proceeding involves difficult issues and the positions
of the parties both have some merit in the present stage of the
development of the law on the subject. The Congressional mandate
to generously extend MSHA's jurisdiction over questionable
enterprises is clear. Old Dominion Power Company, 6 FMSHRC 1886
(1984), at 1890. Nevertheless,·accepting the Secretary's own
jurisdictional guidelines and upon careful consideration of the
nature of VenBlack's operation and other relevant determinants , I
have concluded that it is engaged in manufacturing a separate
chemical product rather than producing (milling or preparation)
coal . The position advanced by VenBlack is accepted as having
the greater merit.

534

ORDER
All proposed f inding of facts and conclusions of law not
expressly incorporated in this decision are rejected.
VenBlack ' s contest of Citation No. 2124861 on the basis of
lack of regu l atory jurisdiction having been found meritorious,
the subject Citation is vacated.
On the same basis, the remaining 7 Citations involved in
penalty Docket WEVA 84-3 1 3 are vacated; and that proce~Jing is
dismissed .

~#o' ~ ft--J

Michael A. Lashe r : J r .
Adminis tr ative Law J u d ge

Distribution:
George v. Gardner , Esq ., a nd J. Edgar Bai ly , Esq ., Gard ner ? Moss
& Brown , 2301 M Street , N.W .g Suite 520 , Washington ;. D.C . 2003 7
<Certified Mail)
James B . Crawford , Esq., Office o£ the Solicitor, u.s. Departme nt
of Labor , 4015 Wilson Boulevard, Ar l ington, Virginia 22203
(Certified Mail)
Mr . Clyde T. Takes, Box 514, MacArthur, West Virginia
{Certified Mail)
Mr . Bob Larsen , Box 21, Lester, West Virginia
Mail)

/blc

535

25873

25865 (Certified

FE DEr~ l-.l //di"E SAf fTY td-..!0 t:t.ALlH P-E\'iE\V COMMISSION
OF-FICE Of .t-.DMII-.I!STRATIVE. LA\\' JUDGES
333 W . COl ~AX AVENUE . SUITE 400
DENVER. COl ORADO 80204

SECR ETARY OF LABOR ,
MI NE SAF ETY ?Y D HEALTH
ADl'HNIST R ATIOl~

CIVI L PENALTY PROCEEDING
Dock e t No . WE ST 8 5- 18 - M
A. C . No. 48 - 00 15 2-05 5 23

(t.~S H A ) I

Petit i on~ r

v.

FHC Trona Hine

FMC WYOMING CORPORA T I ON,
Respo ndent
DECI SION
Appearances : Ro ber t J . Le s nic k , Es q. , Of f i ce o f the S olic i to r ~
u .s . Departme n t of Labor , Den ve r , Colorad o ,
f or Petitione r;
John A. Snow , Es q . 1 and James A. Holtk amp , Es q . ;
VanCott , Bagl ey , Cornwall & McCart h y
Sal t Lake Cit y g Utah ,
f o r Responden t .
Before:

Judge Lasher

Upon Petitioner ' s written motion for approval of a proposed
settlement on the record on March 7, 1985, in Salt Lake City,
Utah, and the same appearing proper and in the full amount o f the
initial assessment , the settlement which was approved from th e
bench during proceedings involving Respondent , is her e af firmed .
Respondent , if it has not previously done so, is ordered to
pay to the Secretary of Labor within 30 days from the dat e hereof
the sum of $168 . 00 .

~:c~d « 4Mtl A

M1chael A. Lasher, Jr.
Administrative Law Judge
Distribution:
Robert J . Lesnick , Esq ., Office of the Solicitor, u.s. Department
of Labor, 1585 Federal Building , 1961 Stout Street, Denver,
·Colorado 80294
(Certified Mail)
John A. Snow, Esq., and James A. Holtkamp, Esq., VanCott , Bagley,
Cornwall & McCarthy, 50 s. Main Street, Suite 1600 , Salt Lake
City, Utah 84144 (Certified Mail)
/blc

536

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W . COLFAX AVENUE . 5UITE 400
DENVER. COLORADO 80204

RAYMOND L. COPELAND,
Complainant

DISCRIMINATION PROCEEDING
Docket No. SE 84-48 - DM
MD 83-53

v.
AGR ICO MINING COMPANYf
Respondent

0

0

DECISION
Appearances : Raymond L o Copeland 9 Lakeland q Plorida g
pro se;
Mary A. Lau, Esq., Holland & Knight, P . A.,
Florida,
for Respondent.
Before:

Tampa~

Judge Lasher

This proceeding, which was initiated by the filing with the
Federal Mine Safety and Health Review Commission of a complaint
of discrimination by Raymond L. Copeland (herein "Complainant")
on April 12, 1984, arises under section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq . ,
(1976 & Supp. V 1981), hereinafter "the Act . "
Complainant was previously notified by letter dated March 6,
1984, from the Mine Safety and Health Administration (MSHA) that
his complaint of discrimination with it had been investigated and
the determination made that a violation of section 105(c} of the
Act had not occurred .
The matter came on for hearing in Lakeland, Florida, on
November 7, 1984, at which Respondent was represented by counsel
and Complainant appeared pro se.
PRELIMINARY FINDINGS
The Complainant was discharged on June 3, 1983 , pursuant to
a "Notice of Disciplinary Action" (Exhibit R-4) which specified:
"Insubordination: Refuse to do flagperson work, instructed by the shift supervisor. "

537

Complainant is a 44-year-old flagman who had been employed
by Respondent for approximately 13 years prior to his discharge.
The duties of a flagman who is part of a train crew comprised of
a locomotive engineer and t wo flagmen consist of flagging
locomotives in and out, loading and unloading cars, switching
cars, checking car doors to determine if they are open or closed,
observing the track and the train when the train is in transit,
and bleeding air off cars by pulling levers (Tr. 41-42, 160,
176-177 , 182, Ex. C-1). At all times material herein,
Complainant's immediate supervisor was Robert B. Durden, a
foreman in the transportation department (sometimes referred to
as a "dispatcher 01 ) (Tr. 41 9 173-175}.
Article Xi/ 9 Section 9, cf the .7 -\greement_ bet\.-veen R.espondent
and the International Chemical Workers Union {herein "Union "), of
which Complainant is a member provides ~
"Except where to do so would place them or others
in a real and present danger
serious bodily harm
or cause them to violate the criminal laws of the
State or Nation, the employees will obey the directives
and orders of their supervisors .
If the directives or
orders cause a violation of the terms of this agreement ,
the employee can subsequently , after carrying out the
directiveg resort to the grievance procedure for redress.
Subject to the foregoing, refusal to obey such orders or
directives of a supervisor will result in discharge or
other disciplinary action." (Ex. R-1).

of

In 197 6, Complainant was terminated from employment by
Respondent because of insubordination (Tr. 148).
In the course
of processing a grievance filed by the Union protesting his
discharge, the Union and Respondent reached a settlement reducing
the penalty from discharge to a six-month suspe nsion (Tr. 148).
That settlement was expressly conditioned upon Complainant's
execution of a letter agreeing that he would be subject to
immediate and permanent discharge if he was "ever again insubordinate or threatening" to his supervisors (R-3). This
sett l ement was in effect at the time of Complainant's termination
for insubordination on June 3 , 1983 (Tr. 149).
On May 31, 1983 , Complainant was to work as a flagman on the
third shift, from 11 :00 p.m. to 7:00a.m. (on June 1) 9 and on a
train crew comprised of himself , locomotive engineer, Edward
Francis and flagman William Cheeseman (Tr. 186) under the direct
supervision of foreman Durden.l/ At the beginning of the shift,
the crew received instructions-from Durden which included moving
a train of cars to the dumping area to unload, moving the empty

!/

Complainant and Francis are black and Cheeseman and Durden
are white .

538

cars to the South Pierce Chemical Plant and r eturning to the yard
at P i erce (Tr. 72 , 187-189} . The c r ew completed these assign ments and returned to the yard at P i erce at approximately
4:00 a . m.
At that time Durden radioed instructions from the
dispatcher's office in the yard to Franc is, the engineer, to move
some ca r s to a repair a r ea to be repaired (Tr . 73 6 188-189) .
While Francis and Complainant were completing that assignment,
Cheeseman returned to th e dispatcher ' s office (Tr . 190 , 258} .
Durden informed Cheeseman that he wanted Cheesman and
Complainant Copeland to ride in a truck to an area cal l ed the
11
two - mile post 11 , located approximately 4 00 y ards from ·t he off ice
to check the bottom of the rai l car door s an d to bleed the air
o f f the rotar y d ump c ar s o n Track 4 ( Tr . 76, 1 91-258) .
Complainant had per f ormed b o t h these f u n c tion s previous ly &t
night (Tr . 177 -1 78 ; Ex . R- 6 a t pg . 14 ).
Durden and Chee seman then l e f t ~ h e d isoa t cher 0 s o ff i ce and
met Complainant at t h e b ottom of th e s t a irs- outs ide the o f fi c e o n
his way back f rom the t rain area (Tr. 1 92) .
Durden r epeated to
Copeland, "Raymond, I want you and Cheeseman to go t o the
t wo - mile post to check the bottom doors and b l eed the ai r off the
rotary dumps ." Compla i nant r epli ed tha t he was n o t goi ng to the
two - mile post to chec k t h e b ottom door s an d b l e e d t.he air anc~ he
to l d Durd e n that if th a t was al l Dur de n h a d fo r him to d o , to pay
him f or his time u p t o tha t p o int and h e wou ld 0 90 in" (Tr . 70 ,
192-196 , 256) . Du rden repeated the instruct i on and asked
Complainant if he was refusing to do the assigned work {Tr. 193,
256) . At that point Complainant stated for the first time that
he wouldn ' t do the assigned work because it was unsafe unless he
coul d use a radar light rather than the customary flagman's
lantern (Tr. 70 , 193, 22 4, 256 ; Ex . R-6, pg. 9) .
Durden advised
Complainant that he did not have an available radar light and
could not g e t one because th e storeroom was closed ( Tr. 109, 195).
Durden asked Che e s e man if the work wa s unsafe to per f orm without
a radar light and Cheeseman stated that i t was not unsafe <Tr .
197 , 256 , Ex . R-6 , pg . 9 } . Both Cheeseman and Complainant had
f lagman ' s lanterns which we re in working order at the time Durden
gave the assignment to go to the two-mile post <Tr . 76, 133 ,

19 7} •
Complainant then suggested that the crew move the t r ain into
a di f f e rent we ll - lighted area of the yard (Tr . 84), a procedure
which had nev e r been used for checking doors and bleeding air off
cars at the two - mile post <Tr . 1 96). When Durd e n rejected
Copeland's sugg e stion, Copeland said that he would not go to the
two-mile post (Tr . 196}. At that point, Durden suspended
Copeland for insubordination pending further invest i gat i on to
determine appropriate discipline, including possib l e discharge
(Tr. 85 , 200}.

539

On the basis of its own subsequent investigation Respondent
terminated Complainant ' s employment for insubordination (Tr.
87-88, 242; R- 3, R-4) , and issued its formal notice of Complainant ' s termination on June 3, 1983 (R-4).
Tests of the two lanterns in question by the undersigned
both in the darkened hearing room and at the "two-mile post" site
itself revealed that the flagman's lantern, which Complainant
refused to use, is at least equal in lighting capacity and
suitability for the tasks to nave been performed, and in some
respects, superior to the radar light Complainant insisted on
using but which was not available (Tr. 135-140 r 287 , 283-296 ,
297 , 29 8).
Respondent has promulgated a manual containing general rules
for engineers and flagpersons in its transportation departme nt
(Ex. C-2) . A list of safety equipment required to be worn and
cared f or by flagpersons in the performance of their duties
appears at page 12 thereof, and includes - in addition to such
items as safety hat and safety glasses - a "flagman's lantern."
On October 14, l983 u Complainant filed charges with the
Equal Employment Opportunity Commission and the Florida
Canmission on Human Rights alleging that his discharge was due to
race (Exs. R-6, R-7. and R-8).
Complainant also filed a grievance pursuant to Article X of
the Agreement between the Respondent and the Union (Ex . R-1) on
June 3, 1983. The Report of Arbitrator George V. Eyraud, Jr.,
was issued on March 26 , 1984, determining that the Union failed
to show that Complainant's discharge was due to safety r easons
(Ex. R-6).
Had Complainant been given a radar light he would not have
refused to perform the work assigned him by Durden at approximately 4:30a . m. on June 1, 1983 (Tr. 110).
Complainant testified that he had never pre viously used a
radar light or flagman's lantern to close car doors at night but
felt that "it's (the radar light) indicating more lighting than a
flagman ' s lantern" (Tr. 100 , 125). 2; He also felt that the
flagman's lantern was "unsafe for tEat type of job" CTr. 103).
~/

Complainant failed to establish any persuasive basis on the
record why he thought the radar light put out more light than his
flagman's lantern. Also, Arbitrator Eyraud found that "Grievant
himself established he had indeed previously performed the very
duties assigned by Durden on June 1, and without a radar light."

54 0

The motivation behind Complainant's work refusal was (1)
resentment - possibly of a racial nature - because Durden had
informed Cheeseman what the duties of the third shift were to be
on two occasions several hours earlier but did not so inform
Complainant and Francis until the time arrived for the duties to
be performed <Tr. 68, 69, 84, 96, 97, 112, 113, 114, 115), and
(2) dissatisfaction with Durden's actions which made it seem as
though Cheeseman was in charge even though Cheeseman, according
to Complainant, "had just come there" and "had just started
working in the department" <Tr. 115, 116). Complainant's
reaction to this and possibly other wrongs perceived by him was
to test Durden to see how much Durden "cared about safety n by
raising the issue of lighting (Tr . ll5 r 116 : 1 33 ) .
The jobs of checking doors and bleeding the air o ff r otar ~
dumps , when done after dark , typically were done by flagmen u si ng
flagman ' s lanterns (Tr . 177-178 e Ex. R-6) . No complaints tha t
these two jobs were unsafe to perform at night had been r ece ived
prior to the night o f Copeland ~ s suspension CTr. 178 v 232-236 ).
There vlas no evidence that Copeland or anyone else ever complained about the safety of those two jobs using a flagman 1 s
lantern instead of a radar l ight ; prior to the night of May Jl
June l q 1983 (Tr . 236 L
ULTIMATE FINDINGS AND CONCLUSIONS
The Complainant has established no justification whatsoever
for his contention that the flagman ' s lantern (a) was inferior to
the radar light, or (b) was insufficient for the job he had been
instructed to perform. Indeed, the record in this case in fact
actually establishes that the flagman's lantern is somewhat
superior to the radar light which Complainant insisted on using
as a condition of performing his assigned tasks. It was
therefore clearly unreasonable for Complainant to engage in a
work refusal since he has admitted that he would not have refused
to work had he been given a radar light. This conclusion is
further supported by the fact that the Complainant's r e al
complaint was not sa f ety-related but resulted from a perceived
slight - justified or not.
In view of the for~going, and since it is also clear that
Complainant did not raise a safety issue until after his foreman
had asked him if he was r e fusing a direct or~er, it is also
concluded that Complainant did not entertain a good faith belief
that a hazardous condition existed. His sudden assertion on the
night of May 31, June 1, 1983, after ten year's experience as a
flagman, that a hazardous condition existed because of the inadequacy of the flagman ' s lantern was not a genuine safety
complaint.
Under the analytical guidelines established in Secretary on
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980),

541

rev'd on other grounds sub nom. Consolidation Coal Co. v .
Marshall 663 F.2d 1211 (3d Cir . 1981 ), and Secretary on behalf
of Robinette v . United Castle Coal Company, 3 FMSHRC 803 (1981> ,
a prima facie case of discrimination is established if a miner
proves by a preponderance of the evidence <1> that he engaged in
protected activity and (2) that some adverse action against him
was motivated in any part by that protected activ i ty .
A miner's work refusal is a protected activity under the
Mine Act if the miner has a reasonable , good faith belief in a
hazardous condition . Secretary on behalf of Pasula v. Consoli dation Coal Co . , ~upra ; §ecre~ary on behalf of Robinette v.
United Castle Coal Co ., supra. See also Miller v . FMSHRC, 687
F . 2d 194 <? ·: h Ci r . 1982) .
He r e , the Complainantgs work refusal, being based on neither
a good faith belief, or a reasonable belief u in the existence of
a hazardous condition , wa s not a protected activity under the
1977 Mine Act . Accordingl y, there is no remedy for his discharge
under this Act .
ORDER
Comp l a in an t having f ailed t o establ i sh Mine Act d i sc r imina t i o n on t he p a rt o f Resp o nde n t 1 his c o mplai nt herein is
DIS MI S SED.

j?~/~(~~

Uicha~l A. Lashe r, Jr.
Administrative Law Judge

Distribution:
Mr . Raymond L. Copeland, 1429 North Webster Drive, Lakeland ,
Florida 33802 (C e rtified Mail)
Mary A. Lau, Esq., Holl a nd & Knight , P . O. Box 1288 , Tampa,
Flo r ida 33601 (Certified Mail)
Agrico Mining Company, P.O. Box 1110, Mulberry, Florida 33860
(Certified Mail)

/blc

542

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

!"?~
·•
. '

22041

"\'•' ··' ··l g .
I

M r ·" .J 1~. · :)

SOUTHERN OHIO COAL COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. WEVA 84 - 296- R
Citation No. 2420016; 6/19/84

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

Martinka No . l Mine

SUMMARY DECISION
Before :

Judge Steffey

Counsel for the Secretary of Labor filed on December 7 ,
1984, in the above-entitled proceeding a "Mot ion for Partial
Summary Judgment" .
Counsel for Southern Ohio Coal Company
filed on December 24, 1984r a cross motion for summary decision.
Because I was in doubt as to certain procedural aspects
of the parties ' motion and cross motion, I issued an order on
February 7 , 1985, requesting that they clarify those points.
The Secretary ' s reply to that order was filed on February 27 ,
1985, and exp l ains that the word "partial" used in the titl e
of the motion simply means that the Se cretary is not request ing me to rule on any issues at this time which may later be
raised with respect to the imposition of a civil penalty when
and if the Secretary subsequently files a related civil penalty case with respect to Citati on No. 2420016 which is the
subject of SOCCO ' s notice of contest in this proceeding.
SOCCO filed its reply to my order on February 28, 1985 .
Both the Secretary ' s reply to the order and SOCCO ' s reply to
the order state unequivocally that no genuine issues of
material fact remain to be adduced beyond those which have
been submitted by the parties in the form of replies to interrogatories and the depositions taken of three persons by
SOCCO's coun sel on September 20, 1984. SOCCO's reply (p. 2)
to the order also states that to the extent that I encounter
discrepancies in the information submitted by the parties,
it will be necessary for me to "make factual conclusions based
on the information in the file ." The parties' replies to my
order make it clear that they are requesting that I issue a
summary decision pursuant to 29 C. F . R. § 2700.64.

543

I have reviewed all of the information in the official
file and I conclude that the materials in the file support the
following findings of fact:
Findings of Fact
1.
Jesse Lowell Sat-ter f ield lives in Fairmont, tvest
Virginia (Dep. 4). 1/ He gave a deposition on September 20 ,
1984. A·t thaJc 'cime -he had been unemployed for 3 days, but
prior to that , he had '\-'JOrked for Consolidation Coal Compa ny in
various capacities from 1973 to 1984 (Dep . 6 ). He has been a
member of the United Mine Workers o~ America since l973 c He
is financial secretary of Local L1060 and was chairman of t:he
mine safety committee from 1982 to 1984 (Dep. 8} " He has
often accompanied MSHA inspectors while the y were inspecting
Consolidation Coal Company ' s Mine No. 20 where Satterfie l d
worked (Dep. 39; 70}. Satterfield graduated from h igh schoo l
and lac ks only one semester of having graduated from Fairmont
State College (Dep. 6). Satterfield 's experience as a coal
miner resulted in his becoming acquainted with the mandatory
health and safety standards and with several inspectors employed by the £.~line Safe·ty and Health Adminis:c ration ,.

2. Satterfield is 35 years old and has always lived in
Fairmont (Dep. 4). At the present time he lives in a house
owned by his mother and his mother lives in another of her
houses which is located only a short distance from the house
occupied by Satterfield (Dep. 36; 49; Exh. 1). A bump appeared in the road about 1/4 mile from Satterfield's house
(Dep . 1 0). People were observed checking the foundations of
homes in the area where Satterfield lives and Satterfield
assumed that the persons doing the checking were working for
Sou thern Ohio Coal Company (SOCCO). Property owners in the
area expressed the belief that SOCCO's Martinka Mine extended
under their homes and Satterfield's mother asked him to find
out where SOCCO was mining (Dep. 10-12).
3. Satterfield believed that SOCCO was required by the
Federal Mine Safety and Health Act of 1 977 to make its mine
map available for inspection by interested persons. As a
person living on the surface of the mine , he did not give
SOCCO any prior notice of his wish to s ee the map because he
believed that SOCCO was under a legal obligation to show hinl
1/ Depositions of Jesse Lowell Satterfield, i ~a nk Dowell
Bowers: and Raymond Leon Ash were taken by socco~s counsel on
September 20 , 1984. All references are to pages in the depositions given by those three persons. The depositions were
transcribed and placed in a single volume having consecutive
page numbers.

544

the mine map (Dep . 14) .
Satterfield was working at the election polls on June 5 , 1984. About midday he was told that he
could take 3 or 4 hours off because few persons were coming to
the polls to vote at that time (Dep . 9).
4. Satterfield went to SOCCO ' s Martinka Mine about 1 p.m.
on June 5, 19 84, and was admitted by the g ua r d to mine property
after he had to l d the guard t hat h e wanted to see the mine map .
Satterfield then went to the mine office and told the receptionist that he wanted to see the mine map so as t o determi n e
whether SOCCO was mining near his house (Dep . 1 5) . She made a
phone call and advised Satterfield that John Ri l ey , SOCCO ' s
land manager , was not at the mine at that time and that he was
the only person who could show him the map .
Satterfield told
the rec e ptionist that he had come to t he mine to see the map ,
not John Riley (De p . 16). About that timet Satterf ield saw
an MSHA inspector named Wayne Fetty with whom he was personally acquainted. Satterfield e xpla i ned to Fetty that he was
having a prob lem because he had come to s ee the mine map and
it looked as i f no one wo uld show it to him .
Fetty sugge s t e d
t h at Satterfie ld see someone else (De p. 1 7) .
Lud Gowers , a n
employee in SOCCO's safety d epartment, overheard Satterfield ' s
remarks and volunteered to check in the Engineering Department
to see if someone else might be able to show Satterfield the
mine map. When Gowers returned, he stated that John Riley was
the only person who could show Satterfield the map. Satterfield therea f ter told the receptionist, whom he had known for
several year s, that SOCCO would be in violation of the Act for
refusing to allow him to see the mine map (Dep. 18). The
receptionist again stated that only John Riley could show him
the map (Dep. 19).
5. Satterfield returned to his home about 2 p.m. on
June 5, 1984 . He then called Ron Keaton at MSHA' s Morgantown
Office and Keaton read some of the Mine Act to him and confirmed Satterfield's belief that SOCCO was obligated to show
him the mine map. Keaton advised Satterfield that an MSHA
inspector could be made available !to · ~eet Satterfield at the
mine to assure that h e would be shown the map , but Satterfield
said he would try again to see the map without resorting to
asking MSHA for assistance (Dep . 20) . Satterfield thereafter
called the receptionist at the mine and told her that he had
checked with MSHA and that he was correct in stating that
socco was leg ally obligated to show him the mine map. The
receptionist connected Satterfield with Wesley Hough in SOCCO's
Engineering Department. Hough stated that since Satterfield
had to work at the polls until late that day, he would get
John Riley to show Satterfield the mine map at 7:30 p.m. (Dep .
21) •

545

6. About 7: 25 p.m. on June 5, 1984, Sa·tterfield called
the mine office and was advised that Riley had gone home for
the day. Satterfield then called Riley at home who stated
that he would not go to the mine that late to show Satterfield
the mine map and that Satterfield could see the map at the
mine between 8 a . m. and 4 : 30p.m. , but Satterfield stated that
he worked the day shift and could not come ·to the mine between
8 a.m. and 4:30 p . m.
Riley then volunteered to come in e a r l y
before the day shift startedr but Satterf i eld said t h at he
had to leave for work at 6:30 a.m. and c ould not come to the
mine before work . Satterf ield also n oted that he h a d a l rea dy
been to the mine between the hours o f 8 a.m. a nd 4: 3 0p.m,.
and had not been able to see the map a ·t ·t h at ·time (Dep . 22 ) .
Satterfield worked 2 hours overtime abou t 8 day s o u t of 10 a nd
did not leave the mine until 6 p.m. Satterfiel6 a ls o worked
on Saturday and some Sundays . Sa tte rfield s a id "ch a t . if h e did
not work overtime, he could leave the mine at 4: 30 p . m. and
be at SOCCO's mine by 5 : 30p.m. because i t takes him an hour
to drive home, but Riley declined to s tay an hour l ate ·t o
show him the map . Satte rfield ' s conversa t i o n with Ri l ey resulted in an impass e because Ri l e y wa s unwilling to s tay as
much as 1 hour late to show the map a nd Satterfie ld c o uld not
come to the mine before 8 a . m. or during normal work i ng h ours
extending from 8 a . m. to 4:30p.m. (Dep. 23-24) .
7 . After Satterfield had failed to reach an agreement
with Riley as to a time when he could see the mine map, Satterfield called an MSHA supervisor of inspectors named Raymond
Ash at his home and told him about his previous discussion
wi t h Ron Keaton mentioned in Finding No . 5 above and Ash told
Satterfield that he would have another inspector# Dave Workman~
check into the matter. Several days thereafter, Satterfield
was told by an inspector named Homer Delovich at Consol's
mine where Satterfield was employed that Workman had indicated
to him that SOCCO would make available to Sat·terfield ·the information he needed (Dep. 28-29).
8.
Re l ying on Delovich's statements , Satterfield again
went to SOCCO's mine about 7 p.m. on June 19 , 1984 . When
Satterfield told the guard at SOCCO's mine that he wanted to
see the mine map, the guard called someone on the phone and
then advised Satterfield that John Riley was not on mine
property. Thereafter, the guard called Riley on the phone
and Satterfield had another conversation with Riley which
again resulted in no agreement as to a time when Satterfield
could see the mine map without having to come to the mine between the hours of 8 a.m. and 4:30 p.m. (Dep. 26-27). Satterfield asked the guard if there was an MSHA inspector on mine
property and the guard checked and found that an MSHA inspector named Frank Bowers was at the mine. Satterfield explained to Bowers the difficulties he had had in trying to

~)46

see the mine map and that he had come to see the mine map again
on the basis of statements by two other inspectors to the effect that SOCCO would make the map available.
Bowers stated
that he was not familiar with the-problem and suggested that
Satterfiel d discuss the matter with some of the inspectors
whose help he had previously sought (Dep. 32-33).
9. After Satterfield had returned home on June 19 without being able to see the map, he again called Raymond Ash at
home to inform him of his most recent unsuccessful efforts to
see the mine map . Satterfield 1 s call to Ash resul ted in
several other phone calls involving Frank Bowers, who was the
MSHA inspector on mine property a·t tha·t time , anP. Mike Resetar .'l
a SOCCO employee who worked in SOCCO' s Safety Departmen·t .
Subsequently , Resetar called Satterfield to tell him ~hat he
was checking to see if someone would be available the next day
to show Satterfield the map. Bowers then called Satterfield
and told him to be at the mine at 7 p.m . the next day, June 20p
and someone would show him the map (Dep . 34) .
10 . When Satterfield went to the mine o n June 20 ~ John
Riley was near the gate with the map and other persons present were the security guard, IVfike Resetar u Frank Bowers, and
t he UMWA walk - around representative, Henry Metz (Dep. 55).
Riley lai d the map on the hood of a pickup truck and pointed
to two little squares on the map which had been placed there
t o indicate the location of his home and the house in which
h is mother lives. Riley would not answer any other question
whic h Satterfield asked him, such as inquiries about the locat ion on the map of a church , a new air shaft, and projection
of t he longwall panel .
Satterfield subsequently discussed
what he had seen on t he map with his mother. Other people
who l i ve i n the are a or travel t he road have asked him whether
t he l ongwall had mined under his house and he told them that
SOCCO had mined u nder his house , but not with the longwall.
One of Satte r field's neighbor ' s told him that a SOCCO official
had contacted him a n d that he believed his house would be on
the surface above SOCCO's next mining panel (Dep. 37-38).
11. As indicated in Finding No. 8 above, Frank D. Bowers
i s the MSHA inspector who was present at socco • s mine on
June 19, 1984, when Satterfield came to the mine for the
second time and was unsuccessful in being shown the mine map
(Dep . 57; 59) . Bowers talked to Satterfield on the phone
a f t er the guard refused to a l low Satterfield to go on mine
property. Satterfield wanted Bowers to issue a citation for
SOCCO's refusal to show him the mine map , but Bowers declined
to do so until he had obtained additional information. Satt erfie ld became angry and hung up and Bowers "sort of forgot"
(Dep. 59) the matter until he received a call from Ash, his
suoervisor , who told him to check into the map situation and

see what he could do to take care of it. Bowers learned from
Ash that Dave Workman had been to the .mine to investigate the
matter, so Bowers talked to Workman on the phone and Workman
stated that he had arranged for SOCCO's personnel to set up a
meeting so that the matter could be taken care of (Dep. 60-61) •
Bowers then engaged in conversations with ~ike Resetar in
SOCCO ' s Safety Department and Resetar talked to Jim. Tompkins
and John Merrifield who are mine officials (Dep. 62; 96) .
Bowers had great difficulty in getting SOCC0 1 s personnel to
agree upon a time when Satterfield could see the mine map
(Dep. 63) . SOCCO final l y agreed to have someone show Satterfield the mine map at 7: 30p.m . the next day; J'une 20 .
12. Bowers had decided to issue a citatiori for SOCCO 's
refusal to show the mine map to Satterfield on June S f but
Bowers did not actually issue the citation unti l a f ·ter a time
for seeing the map had been agreed upon (Dep . 65). Bowers
said that his decision to issue the citation was based on the
fact that Satterfield had been to the mine on June 5 at 1 p. m.
· to see the map and no one would show i t to him . The n whe n a
time of 7:30p.m. was agreed upon for Satterf ie l d to s e e the
map on that same day , no one would show Satterfiel d ·t he ma p .
The citation Bowers wrote is No. 2420016, and was issued o n
June 19, 1984, at 10 p.m. under section 104(a) of the Act al leging that SOCCO had violated section 312(b) of the Act .
The condition or practice described in the citation reads as
follows:
According ·to Lowell Satterfield, a landowner on the
surface of the Martinka No. 1 Mine, a request was
made on June 5, 1984 , to see the mine map . A meeting was set to see the map at 7:30 p.m . on June 5,
1984, with a company official, and no one would
show him the map after 5 p.m.
A meeting has now been set with the Company
and Lowell Satterfield for 7:30 p . m. on ,June 20,
1984, at the mine.
The time set for the meeting
is agreeable with both parties.
Bowers Deposition Exh. 1 . Citation No. 2420016 was modified
on August 24, 1984, to cite 30 C . F.R. § 75 . 1203 which is i dentical in wording with section 312(b) of the Act. The modifi cation was made because MSHA ' s computers are programmed to
reject any citation which reflects a violation of a section
of the Act if there is a parallel regulation pertaining to
the violation being charged (Dep. 77; Bowers Deposition Exh. 3).
13. The deposition given by Raymond Ash, the MSHA supervisory inspector to whom Satterfield appealed for assistance
in getting SOCCO to show him the mine map, does not disagree
with the facts given by Bowers or Satterfield in any significant particulars. Ash's deposition is useful, however , in

548

revealing why SOCCO resisted showing the map to Satterfield
except between the hours of 8 a.m. and 4:30 p.m. Ash was
specifically told by John Riley just about 10 days prior to
September 20 , 1984 , when Ash appeared to give his deposition,
that SOCCO was not going to show their maps or anything else
to people except by appointment. during normal working hours
between 8 a.m . and 4:30 p.m. Riley said that socco is a business just like a courthouse is a business and should be open
only during normal working hours (Dep. 105). Ash also said
that John Merrifield had told him essentially ·the same thing
about June 19 when he was engaged L"l conversations with SOCC0 7 s
personnel about getting SOCCO to show S a ~te rfield the mine map
(Dep. 108} .

14. Ash~s deposition a lso seems to support Satterfield ~ s
belief that he went to socco ~ s mi.ne m:, ,:rune 19 abou·t 7 : 00 p.m.
because Ash thinks that Satterfield t irs t c a l led him about
8 p.m. after Sa·tterfield h ad already been ·co t.he mine and had
been refused admittance (Dep. 100) .
Consideration of Parties ' Arguments
The arguments in the Secz·eta r y ' s motion. ::or summary dec i ·sion are straight forward and tc the p o int . The Secretary
relies upon the literal meaning of the words of section 312(b)
of the Act, or of section 75 . 1203 of the regulations which are
identical with those of section 312(b), and asserts that since
Satterfield was a person owning , leasing, or residing on the
surface area of SOCCO's mine , that he was a person who is en titled to inspect the map. The Secretary then concludes that
since SOCCO failed to make the map available to Satterfield
when he went to the mine about 1 p. m. on June 5 , 1984; and
asked to see the map , SOCCO was necessarily in violation of
section 75.1203 and that the inspector correctly issued Citation No. 2420016 on June 19 , 1984 , alleging that SOCCO had
violated section 75.1203 (Secy 1 s Motion, pp. 4-8) .
SOCCO's cross motion for sumrnarv decision concedes that
Satterfield was not shown the mine mao on June 5 when he went
to the mine to see the map , but SOCCO- seeks to avoid being
cited for a violation of section 75.1203 by arguing that
SOCCO had a policy of showing the map to the persons designated in section 75ql203 so long as they ask to see the map
during SOCCO's normal business hours of 8 a.m. to 4:30 p.m.
and so long as they assure , in advance of coming to see the
map, that John Riley, SOCCO's land manager, is also at the
mine to show such persons the map .
SOCCO argues that at no
time did it refuse to make the map available to Satterfield
and only insisted that Satterfield come to see the map during
normal business hours, or come at some other time when John
Riley was willing to show the map ·to Satterfield. SOCCO
states that it is unreasonable for Satterfield or the Secretary

549

to expect it to respond to the demands of a surface resident
who insists on seeing the mine map on his terms and at his
convenience (Cross motion , pp. 7-14).
Section 312(b) of the .Act and section 75.1203 provide as
follows :
The coal mine map and any revision and supplement thereof shall be available for inspection by
the Secretary or his authorized representative, by
coal mine inspectors of the State in which the mine
is located, by miners in the mine and their representatives and by operators of adjacent coal mines
and by persons owning , leasing, or residing on surface areas of such mines or areas adjacen~ to such
mines . The operator shall furnish to ~he Secretary
or his authorized representative and to the Secretary of Housing and Urban Development, upon request ,
one or more copies of such map and any revision and
supplement thereof.
Such map or revision and supplement thereof shall be kept confidential and its
contents shall not be divulged to any other person:
except to the extent necessary to carry out the
provisions of this Act and in connection with the
functions and responsibilities of the Secretary of
Housing and Urban Development.
Legislative History
The Secretary's motion (p. 7) states that there is no
legislative history pertaining to section 312(b) of the Act,
but that is not entirely correct. Section 312(b) was not
changed when the Federal Coal Mine Health and Safety Act of
1969 was amended and renamed the Federal Mine Safety and Health
Act of 1917 .
Therefore, the legislative history pertaining to
section 312(b) is contained in Part 1 of the LEGISLATIVE HISTORY OF THE FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 19 69
prepared for the Subcommittee of Labor of the Committee on
Labor and Public Welfare , United States Senate. The discus sion which follows cites pages in the 1969 History.
When Congress began considering the l egislation which
ultimately became the 1969 Act, the primary bill introduced
in the House was H. R. 13950 and the primary bill introduced
in the Senate was S. 2917 . Section 215(b) of S. 2917 contained a provision that the mine map was to be made available
to certain persons, but no reference was made to surface landowners.
History , pp. 75; 208; 856. Section 312(b) of H.R.
13950 contained the same provision as section 215(b) of S. 2917,
that is , the bil l required the map to be made available to
certain persons, but made no reference to surface landowners
and the House bill also did not refer to the confidentiality
of the map. History, pp. 1003 ; 1317; 1337.

550

When s. 29 1 7 was called up by the House , the b i ll had been
renumbered so that section 312(b) of S . 2917 pertained to the
same subject matter as section 312(b) of H. R. 1 3950 , but the
revised numbering of S. 2917 still did not contain any refer ence to making the map available to surface landowners. His tory , pp. 1402; 1427. The House , however, insisted that
S. 29 17 be amended to conform with H. R. 13950 and requested
a conference with the Senate . History, p. 1438 .
Conference Report No. 91-761, 9lst Cong. , 1st Sess . to
accompany s . 2917 shows that the conferees had amended section 31 2(b) to add the confidentiality provision which is now
contained in that section and also added the provision that
the map was to be made available to " persons owning u leasing ,
or residing on surface areas of such mines or areas adjacent
to such mines ." History , p . 1486 . The Conference Report explained the changes as f ollows :
Both the Senate bi l l and the House amendment required
the maintenance of a mine map.
The Senate bill required that the map be confident ial except for disc l osure f or certain specified persons . The House
amendment directed that the Secretary of Housing
and Urban Development receive a copy .
The conf erence
substitute provides that the map sha ll be made availabl e to the Secretary and his inspectors , the Secretary of Housing and Urban Development, the miners and
their representatives, operators of adjacent mines,
and to persons owning , leasing, or residing on surface areas of such mines or on areas adjacent to such
mines, but that otherwise it shall be kept confidential.
History, p. 1529.
The section- by- section analysis of S. 2917 states with re spect to section 31 2(b} that :
Subsection (b) requires that mine maps shall be
available upon request, to the Secretary, State
coal mine inspectors, the miners, operators of adjacent coal mines , persons owning, leasing or re siding on surface areas and the Secretary of Hous ing and Urban Devel opment .
History, p. 1618.
It is obvious from the above discussion of the legislative history that when the conferees added " persons owning ,
leasing, or residing on surface areas of such mines or on
areas adjacent to such mines " that they did not distinguish
the rights of the surface residents from the rights of the
Secretary's inspectors to see mine maps. Sect ion 312(b}

551

provides that the mine map "shall be available for inspection"
and there is no hint that the named persons who are entitled to
s ee the map are required to make an advance appointment to see
the map or make certain that any specific individual is present
at the mine to show them the mine map.
While I sympathize with SOCCO ' s management that i t should
never have to show its mine map to any person who is demanding in his or her i ns i stence u pon seeing the map , the fact
remains that Satterfield was among those p ersons who are
entitled to see the map.
Sinc e sectio n 31 2(b) d oes not
specify any conditions whi ch c; surfac e r es ident must meet in
order to see. the mine map , the surface res ident i s in the
same position as a n inspector is when he asks i:Q~ have the
map made available for his in s p ection.
Inspectors g o to
mines during all ·chree o/\ro:r:·kiug shift.s ·co make their examinations.
They are j us t as likely ~o ask that the mine map be
made available at 3 a.m. on t he mi dnight to 8 a.m . shift as
they are to ask that the map be made available during a day
shift between 8 a.m. and 4 p . m.
If · a surface resident
should wake up in t he middle o f the n~ght and fin d tha t n~s
house i s sinkin g into c. coal mine:, -:~.here .i s every reason ·to
believe that h e might want to see ~he mine map at 3 a.m. if
he could find anyone at the mine at that time o f ni g ht .
7

While SOCCO's land manager may tell an inspector that
SOCCO is a business just like a courthouse and is entitled to
keep regular hours just like any other business (Finding No .
13 above), i t is a fact that courts do not dig tunnels under
people's homes and courts are not likely to cause the apprehension which people experience when they see bumps in roads
and see strangers examining the foundations of their houses
(Fi n d i ng No . 2 above).
A surf ace resident who is disturbed by
t he condi tion of the ground under and around his horne is like ly to go to see the mine map in a sta~e of agitation. At such
times, he may forget to be polite when he is told by the coal
c ompany that he may see the mine map only when a single person
i s c onveniently present to show him the map.
The fact that at least one of SOCCO 's employees felt on
J u ne 5 that Satterfield ought to have been able to see the
map , even though the land manag er was not present to show him
t he map i n dicates that SOCCO ' s policy of allowing only the
land manager to show a surface resident the map was not a
well-known rul e (Finding No . 4 above} .
Additional ly, the fac t
that another of socco•s employees fixed an evening appointment
of 7 : 30 p.m. when Satterfield could see the mine map indicates
that SOCCO's policy of allowing only the land manager to show
s u rface residents the map only during the hours of 8 a . m. to
4: 3 0p.m. was not well known (Finding No. 5 above).

552

SOCCO also seeks to make an issue of the fact that Satterfield did not offer any proof that he was a surface resident at
·the time he asked to see the ·map on June 5 (Cross motion, p. 8) .
There are defects in that argument. First, the receptionist
was a person who was well known to Satterfield and she knew
that he was a surface resident and did not need to ask for any
proof. Second, SOCCO did not decline to show Satterfield the
map on the ground that he had not proven he was a surface resident who was entitled to see the map.
The sole ground given by
SOCCO for refusing to show Satterfield the map was that SOCCO's
land manager was not at the mine to shm..r him the map (F inding
No. 4 above) . Third, when the land manager finally did show
Satterfield the map on June 20, 1984, he had already drawn
squares on the map to designate the location of ~he houses in
which Satterfield and his mother lived (Finding.No . 10 above) .
There is no merit to SOCCO' s argument ·that it ought ·t o b e
able to designate the land manager as the sole person to show
the mine map to surface residents because he would be the most
knowledgeable person to perform such duties (Cross motion,
p . ll). SOCCO does not challenge Satterfield's statement that
when the l and manager finally did show him the map the land
manager refused to answer any of Satterfield 9 s questions about
the map, such as the location of a church in which Satterfield
was interested (Finding No. 10 above).
SOCCO's Alleged Efforts To Accommodate Satterfield
SOCCO emphasizes the length to which its land manager
went in his efforts to make the mine map available for Satterfield ' s inspection (Cross motion , pp. 9-10) . SOCCO claims
that the land manager offered to come to the mine before 8 a.m .
to show Satterfield the map and also offered to stay late to
show Sa-t terfield the map. Satterfield agrees that the land
manager offered to come in early to show him the map , but
Satterfield explained that he was working the day shift at
Consolidation Coal Company's No. 20 Mine and that he had to
leave for work at 6:30 a.m. and that he could not come to the
mine to see the map before 8 a . m. , Satterfield additionally
testified that he works overtime abou·t 8 days out of 10 and
did not leave the mine until 6:00 p.m. Satterfield also
worked on Saturdays and some Sundays. Satterfield said that
if he did not work overtime, he could leave the mine at 4:30
p.m. and be at SOCCO ' s mine by 5 : 30p.m . because it takes him
an hour to drive home, but the land manager refused to stay an
hour late to show him the map (Finding No. 6 above).
Despite the above testimony given by Satterfield under
oath, SOCCO's cross motion (pp . 9 - 10) emphasizes that the land
manager volunteered to stay late to show Satterfield the map.
The only factual reference cited by SOCCO to support its claim
that the land manager agreed to stay late to show Satterfield

-553

the map is its Answer No. 9b to the Secretary ' s interrogatories.
SOCCO's answers to the Secretary's interrogatories were prepared by SOCCO's counsel on September 10, 1984, which was 10
days prior to the time that SOCCO's counsel took Satterfield's
deposltion on September 20, 1984 .
I believe that there is more
validity and credibility in the statements of a deponent made
under oath than there is to a generalized statement made in an
answer to an interrogatory . Therefore , I reject SOCCO's claim
that its land manager volunteered to stay late after work to
show Satterfield the mine map .
Other aspects of the facts suppor·t my conclusion that the
land manager never agreed to stay late to show Satterfield the
map. First ; SOCCO~s Answer No o 9b agrees that the land manager
refused to stay late on June 5 t:o s h ov.? Sat·terfield the map despite the fact that another of SOCC0 °s employ ees had advised
Satterfield ·that h e could c ome ·::o -~:he mine about. 7 : 3 0 p . m. and
see the map on June 5. Second 1 it is uncontroverted that Satterfield did come to the mine about 7 p . m. on June 19 in an
effort to see the map and returned to the mine at 7:30 p.m . on
June 20 at which time t h e land manager did show him the map ,
The fact that Satterfi e l d came to t he mine about 7:3 0 p. m. o n
two different occasions CO see ·t he map shows b eyond any s h adow
of doubt that Sa·tterfield was willing· to come to the mine after
work to see the map.
If the land manager had been willing to
stay late to show Satterfield the map, the two men would have
had a meeting of minds on June 5 and . no citation for failure
of SOCCO to show Satterfield the map woul d ever have been
written. Finally, if the land manager had been as accommodat ing as SOCCO's cross motion contends, Inspector Bowers would
not have had to say in his deposition that "I couldn't get no
one to set a time-- one before 5:00 and one could be there
after 5:00 - - okay? I went ahead and cited the citation to
try to get this over with . " (Deposition, p . 63).
1

SOCCO's Claim that the Map was "Available"
SOCCO's cross motion (p. 12) refers to section 312(b) of
the Act and notes that the pertin~nt requirement of that section is that the 11 (t]he coal mine ·map ***shall be availabl e
for inspection by * * * persons * * * residing on surface
areas of such mines". SOCCO then states that the definition
for " avai l able" in WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1976) is "accessible" or "obtainable " . SOCCO then contends that i t could not have violated section 31 2(b) because
it has a policy of having its land manager to show the mine
map to persons residing on surface areas of its mine between
t he hours of 8 a.m. and 4:30 p.m. SOCCO claims that since the
map is available for inspection during that period of time , it
is " accessible " and "obtainable" by surface residents. SOCCO
argues further that since its land manager went out of his way
to make the map available to Satterfield before and after

554

those hours , that it went far beyond its normal policy in trying
to make the map available for inspection b y Satterfield .
As I have already explained above and as I have shown in
Finding Nos . 4 through 10 above, SOCCO did not make the map
available f or inspection by Satterfield when he came to the
mine to see it at 1 p . m. on June 5 .
SOCCO did not make the map
available for inspection at 7 : 30 p.m. on J une s-even· thoug h one
of SOCCO ' s employ ees had tol d Satte rfield it would be made
available a t t hat time . SOCCO did n o t make t he map a v a i lable
for inspection when Satterf ie l d agarn-went to the mine to see
i t about 7 p . m. on J une 19. Finally r SOCCO d id ma k e the map
avai l able f o r inspec tion a bout 7: 30 p.m. o n J une 20 afte r
SOCCO ' s mana gement had been p ressured by several "MSHA insp e ctors and a supervisory i nspec tor to make the map· avail a ble .
In the circumstances d escrib ed above , one s imply c annot fin d
that SOCCO ma de its map a v a i lab l e f o r i nsp ection by Sat t e rfield in conf ormance with t he p rovisions of secti on 312(b )
until after Citation No . 2420016 was written .
As I h a v e pointed out a bove , SOCCO rs ~ol! c y of making the
map ava ilable from 8 a.m . to 4:30 p. m. only if a sin g le d e sign ated p erson i s a v a ilabl e t:o show t he ma p is not a p o licy ·v1hich.
can be acce9ted as compliance with section 312(b) . The land
manager, like any other person, is likely to take an annual
vacation, get sick occasionally , be given assignments away
from his regular office at various times during the year, and
may often be out of his office to each lunch.
Consequently,
SOCCO's policy of permitting a person to see its mine map only
if the land manager is present between the hours of 8 a.m . and
4 : 30p.m. is not an acceptable way to comply with section
312(b). Congress did not differentiate between the right of
a surface resident to see the ·map and the right of an MSHA
inspector to see the map. No MSHA inspector is likely to sit
and wait patiently while the land manager gets around to finding it convenient to make the map available f or his or her inspection. Similarly, a surface resident like Satterfield is
entitled to see the mine map when he comes to the mine for
that purpose and SOCCO cannot successfully claim that the map
is "available for inspection" when · a ~urface resident is denied
the right to see the map simply because SOCCO ' s land manager
happens to be out of the office at the time the surface resident comes to see the map.
SOCCO's Claim o f Confidentiality .
SOCCO's cross motion (p . 13) quotes the following pertinent provision from section 312(b) of the Act :
Such map or revision and supplement thereof shall be
kept confidential and its contents shall not be divulged to any other person, except to the extent
necessary to carry out the provisions of this Act.

-555

SOCCO argues that the confidential provision of section 312(b)
shows that Congress was aware of the importance of the information shown on the mine map and that SOCCO's policy of having
the map available only during regular business hours, provided
its land manager is present, is a fully reasonable requirement
in light of its confidential nature. SOCCO then states that
Satterfield readily admitted that he had divulged the contents
of SOCCO ' s map to several individuals , some of whom were not
even owners, lessors, or residents of the surface area of the
mine (Satterfield's Deposition , p. 37) . SOCCO then concludes
that "Satterfield blatently violated the express terms of the
regulation he so adamantly wishes to strictly construe and
enforce" (Cross motion , p . 13 , n . 13) .
There are defects in SOCCO ' s reliance on the confidemtial
provision of section 312(b) . The legis l ative history dis cussed above shows that Congre ss speci f ically stated :
that the map shall be made available to the Secretary
and his inspectors, the Secretary of Housing and Urban Development , the miners and their representatives !
ope r ators o f adjacent mines , and t o persons owni n g r
leasing, or residing on surface are as o f suc h mine s
or on areas adjacent to such mines, but that otherwise
it shall be kept confidential .
[Emphasis supplied.]
The incriminating statements from Satterfield ' s deposition
(pp. 37- 38) on which SOCCO relies for its contention that Satterfield 11 blatently violated the express terms" o f section
312(b) are as follows:
[The questions were asked by SOCCO ' s
counsel.]
Q

And who were these people , as best you can recall?

A I think I told Ernie Carpenter. Let's see - - Paul
Morrison . Let ' s see - - I believe- - I don ' t know
whether I - - I really don't recall who all had asked
me but at different times, you know -- since there
was so much road damage, you ; knpw, they just wanted
to know, asked me if they were going to go under my
house.

Q

Are these your meighbors?

A

Oh, various people that

Q

That live in that area?

A Probably a couple of them live in that area. Probably a couple -- just people who travel that road.

55 6

Q

Who just wanted to know where they had been mining?

A Well , they just wanted to know if they were going
under my house .

Q

Going under your house?

A

Yes, where I live .

Q Did anyone want to know if they were going under
their own houses ; if Southern Ohio Coal Company was
going under their own house'?
No .
One conversation with a neighbor p )1e said he
thought his house 'tV'as going to be in t he next. panel .

A

Q

Had he seen the mine map?

A

A Martinka official had contacted him "

Since Congress made it very clea r in the l egislative
hi story that the confidential provisions of section 312(b )
did not apply to surface residents of socco ~ s mine or to surface residents of "areas adjacent to such mines" , it does not
appear that Satterfield was required to refrain from discussing the sma l l amount that he learned from seeing SOCCO ' s map
with the persons with whom he discussed the contents of the
mao.
As I have indicated above , the land manager refused to
answer any of Satterfield 1 s questions about the map except to
point out on the map the location of the houses in which Satt erfield and his mother lived. The land manager ' s uncoopera tive attitude in discussing the map with Satterfield left
Satterfield with scarcely any information obtained from the
map for discussion with other persons who had not seen the map.
Moreover, it does not appear that Satterfield discussed the
map with anyone who might not have had a right to see the map
i f he had taken the time to go to: socco~s mine for the purpose
of asking that the map be made "available for inspection."
All of the persons who asked Satterfield whether SOCCO was
mining under his house at least traveled the road under which
SOCCO had mined or was about to mine . The deposition fails to
show whether those persons also resided on "areas adjacent to "
SOCCO's Martinka Mine, but that probably accounts for their
interest in the matter.
In any event, SOCCO did not establish for certain that Satterfield discussed the mine map with
persons who were not entitled to know about it under the express provisions of section 312(b).

-5·57

SOCCO's Claims that Citation No. 2420016 Was Improperly Issued
SOCCO ' s cross motion (p. 14) contends that Citation No.
2420016 is invalid because it was written on June 19 for acts
which SOCCO allegedly committed on June 5 in refusing to show
Satterfiel d the map when he came to the mine office at 1 p . m.
on that date (Finding No. 12 above). SOCCO argues that the
citation is invalid becaus e it is based on what the inspector
was told rather than on what he personal l y observed.
There is no merit to SOCCO's contention that an inspector
may issue a citation only on the basis of something which he
has personally observed. Section 104(b) of the 1969 Act did
provide that an inspector should issue a notice of violation
.if, "upon any inspection" 6 he "finds" that a vi<?lation has
occurred. When Congress amended the 1 969 Act to promulgate
the prese nt Ac t 1 it considerably broadened the inspector • s
authori t y to issue citations by providing that he could do so
"upon inspection or investigation" if he "believes" that a
violation has occurred. Congress explained its reasons for
enlarging the inspector ' s authority , as follows :
Section [104(a)] provides that if 1 upon inspection
or investigation , the Secretary or his representative believes an operator has violated this Act
or any standard , rule , order or regulation promulgated pursuant to this Act , he shall with reasonable prompt ness issue a citation to t he operator.
There may be occasio ns where a citation will be
delayed because of the complexity of issues raised
by the v i olations , bec ause of a protracted accident investigation , or for other legi t imate reasons . For this reason, section [104(a)] provides
t hat the issuance of a citation with reasonable
promptness is not a jurisdictional prerequisite
to any enforcement action. Citations shall de scribe with particularity the nature of the violation, and fix a reasonable time for the violation ' s abatement.
LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT
OF 1977 , July 1978, 618.
MSHA frequently is required to base its citations of vio lations on information obtained from interviewing eyewitnesses
t o v i olations rather than on information gained by an inspector ' s own observations of violation s. Many citations issued
after investigations of accidents are based on information
obtained by inspectors who interview witnesses after the acci dents occur .
In cases involving explosions, it is sometimes
too hazardous for inspectors to make personal examinations of
actual sites of the explosions and they ultimately issue c i tations bas ed on interviews of persons who observed t he site of
the explosion at the time or after the exp l osion occurred.

558

MSHA is not barred from issuing citations for a considerable time after a violation occurs if there is a reason for
the delay.
In Old Dominion Power Co. , 6 FMSHRC 1886 , 1894
(1984), the Commisslon afflrmed a judge's decision which had
upheld the validity of a citation which did not cite Old
Dominion for the violation there involved until 12 months
aftei the violation had occurred. There was a reasonable
basis for the delay in issuing the citation in the Old Dominion
case just as there is in this case.
In this proceeding, Satterfield reported to MSHA on
June 5 that SOCCO had refused to show him the mine mao that
day when he went to the mine at 1 p.m. to see the map . MSHA
confirmed Satterfield 's belief that SOCCO was required to
show him the mine map because of his status as a surface ~esi
dent, but Satterfield, at that time , declined MSHA 's offer of
assistance in getting to see the map and stated that he would
make another attempt to see the map throuoh his own efforts
(Finding No. 5 above). The fact that Satterfield initially
declined to ask MSHA to intercede actively on his behalf
shows that he was at first inclined to be quite reasonable
in giving SOCCO another chance to make the map available for
inspection. If SOCCO's land manager had shown any .Llexibility
in his willingness to stay late to show Satterfield the map,
no citation would ever have had to be issued.
When the land manager again refused to show Satterfield
the mine map on June 19 after Satterfield had gone to the
mine under a mistaken impression that SOCCO had agreed to
make the map available, Satterfield asked Inspector Bowers,
who happened to be at the mine at that time, to issue a citation. The inspector declined to issue a citation at first
because he had not investigated the facts. Subsequently,
when he received a call from h is supervisor requesting him
to check into SOCCO's refusal to show Satterfield the map,
he talked to another inspector who had already investigated
the matter and Bowers thereafter personally experienced considerable difficulty in obtaining an agreement by SOCCO's
management to show the map to Satterfield after 5 p.m.
Section 104(a) not only provides for an inspector to
issue a citation on the basis of an investigation if he believes that a violation has occurred, but also provides that
"the citation shall fix a reasonable time for the abatement
of the violation." The inspector explained in his deposition
that he did not issue the citation until SOCCO had agreed
upon a time for showing Satterfield the map, that is, had
agreed upon a time for abatement of the violation. The inspector then stated that he issued the citation "to trv to
get this over with" (Deposition, p. 63).
Using the inspector's statement that he issued the citation "to get this over with", SOCCO argues in its cross motion
(p. 15), that the inspector's motive in issuing the citation

G59

was to resolve a difference of opinion between SOCCO and Satterfield rather than cite a violation of the Act which he believed
had occurred. The inspector clearly stated that he had decided
to issue the citation based on SOCCO~s refusal to show Satterfield the map on June 5 , but that he did not issue the citation until SOCCO had finally agreed upon a time for abatement
(Deposition, pp. 63~ 65).
The discussion above shows that Citation No. 2420016 was properly issued under section l04(a) because it was based on an investigation of the facts underl y ing
SOCCO's refusal to show Satterfield the map on June 5 and was
issued after Inspector Bowers had finally ;btained a time for
abatement for insertion in the citation as required by section
104(a) of the Act .
SOCCO's cross motion (p. 15) cites two cases in support
of its final argument that ~itation No . 24200 1 6 must be··~acated
because no violation of section 312(b) existed at the time t he
citation was issued.
The first case on which SOCCO relies is
one decided by Chief Administrative Law Judge Merlin in Republic
Steel Corp. , 5 FMSHRC 1158 (1983) 1 in which Chief Judge Merlin
held that no viola tion of 30 C.P . R . § 75.604 existed in circumstances , based on credibility determinations , showinq that the
defective permanent splice described in the citation had been
removed from a trailing cable before it was cited by the inspector as being defective.
In the .Republic case, Chief Judge
Merlin specifically stated that his rul1ng did not apply to a
violation which remained in existence at the time the violation
was cited. 5 FMSHRC at 1162. The other case relied on by
SOCCO is Consolidation Coa l Co., 5 FMSHRC 1463 (1983), which
involved an order by Chief Judge Merlin requiring MSHA to explain why Consol was being allowed to pay a $20 penalty in a
case in which MSHA had asked to withdraw its petition for
assessment of civil penalty. Chief Judge Merlin's order
stated that it was 11 inconsistent for the Solicitor to seek to
withdraw his penalty petition and at the same time allow the
operator to pay a $20 penalty 11 •
5 FMSHRC at 1463.
Obviously, the two cases cited by SOCCO do not support a
claim that the citation in this ca\Se . $hould be vacated because
no violation existed on June 1 9, 1984, when the citation was
issued. SOCCO refused to make its mine map "available for inspection" by Satterfield on June 5 3/ and SOCCO continued to
2/ As the Secretary ' s reply brief (p. 3) notes, "Besides the
original copy of the map located in a vault {on mine property),
there are at least 11 "500 scale" reproductions located throughout various mine offices and rooms 11 •
SOCCO's Answer No.
3(c) (ii) to the Secretary's interrogatories. When Satterfield
finally saw the map , he was shown a "500 scale" reproduction.
SOCCO's Answer No. 9b.

refuse to make the map available to Satterfield, desoite re quests by both Satterfield and MSHA's inspectors that the map
be made available . Those refusals had continued to be made up
to the very time the citation was issued (Finding Nos . 4
through 10 above). Consequently , SOCCO's contention that no
violation of section 312(b) or of section 75 . 1203 occurred
must be rejected as being contrary to the facts and unsunported by the cases cited in SOCCO ' s cross motion.
~'7HEREFORE,

it is ordered:

(A)
The motion for summary decision filed on December 7:
1984, by the Secretary of Labor is granted and the cross motion
for summary decision filed on December 24 , 1984_; by Southern
Ohio Coal Company is denied .
(B)
The notice of contest filed on June 25 , 1984 : by
Southern Ohio Coal Company, as supplemented on August 30, 1984,
is dismissed and Citation No. 2420016 issued June 19, 1984,
alleging a violation of section 75 .,1203 , is affirmed .
The issues raised in this proceeding in Docket No .
(C)
WEVA 84- 296-R are severed for purpose of separate disposi·tion
from the issues raised in Docket No. WEVA 84-281- R with which
the issues raised in Docket No . WEVA 84 - 296-R were previously
consolidated in a prehearing order issued on August 23, 1984.

~e. ~~-

Richard c. SteffeyPP ~
Administrative Law Judge
Distribution :
David A. Laing, Esq., and Alvin J. McKenna, Esq . , Alexander,
Ebinger, Fisher, McAlister & Lawrence, 1 Riverside Plaza, 25th
Floor, Columbus , OH 43215-2388 (Certified Mail)
Heidi Weintraub, Esq . , Robert A. Cohen, Esq . , Office of the
Solicitor , U. S . Department of Labor, 4015 Wilson Boulevard,
Arlington , VA 22203 (Certified Mail)

561

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

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

v.

.· . ·-i .r.' )· 1085
'v

CIVIL PENALTY PROCEEDING
Docket No. SE 84 - 68 - M
A.C. No . 40-00041-05502

.

Marmor Quarry & Mill

0

JOHN J. CRAIG COMPANY ,
Respondent

DECISION
Appearances: Mary Sue Ray, Esq., Office of the Solicitor , U.S.
Department of Labor, Nashville, Tennessee ,
for Petitioner ;
Mr. John J. Craig u President 9 John J." Craig Compan y ~
Knoxvilleu Tennessee q
for Respondent.
Before:

Judge Lasher

This matter came on for hearing in Knoxville, Tennessee, on
January 9, 1985. MSHA seeks assessment of a $91 penalty each for
the violations of 30 C .P .R. § 56.14-1 1; alleged in Citation Nos.
2080846 and 2080847, issued by MSHA Inspector Dallas Shipe on
April 18, 1984 during a regular inspection.
At the end of the hearing, 2; Respondent ' s president, John
J. Craig , conceded the occurrence of the violation described in
1/ 30 C.P .R . § 56.14-1, pertaining to guards, provides as
follows:
56.14-l Mandatory. Gears; sprockets; chains; drive,
head, tail, and takeup pulleys; flywheels; couplings;
shafts; sawblades; fan inlets; and similar exposed
moving machine parts which may be contacted by persons,
and which may cause injury to persons, shall be guarded.

£/

Tr . 133-135, 139.

Citation No. 2080847 3; and with respect to Citation No.
2080846 , ~/ Respondent made no persuasive or substantial denial
or rebuttal of the Secretary ' s substantial evidence establishing
the occurrence of the violation.
Accordingly, both violations
are found to have occurred.
Respondent ' s contentions before and during the hearing focused
primarily on the amount of penalt ies which should be assessed.~/
PRELIMINARY FINDINGS
Based on stipulations reached by the partiesu and the
testimony and documentary evidence of record u it is found :
{1)
Respondent , a small family corporation historically
engaged as a producer of and wholesale dealer in Tennessee Marble
and Terrazzo chips 9 operated the Marmor Quarry and Mi ll at all
times pertinent to these proceedings ( Tr . 64} and is subject to
the jurisdiction of the Federal Mine Sa fety and Hea lth A c ~ .

(2) Respondent is a medium-s iz ed mine operator i n t he
marble industry <Tr . 124).
{3) Assessment of reasonable penalties will not j eopa rdi~e
Respondent ' s abil ity t o continue in business ~T~. cc ;~
~~-

(4)
Respondent proceeded in good faith to attempt to
achieve abatement of both violations after notification thereof
(Tr . 58). No finding is made, however, that both violations have
remained abated.

ll

The condition cited in Citation No. 2080847 is as

follows ~

The flywheel and the wide drive belt on the No. 5 gang
saw was not guarded to keep a person from f a lling into
them. A walkway is heavily traveled by the employees.
~/

The violative condition cited is described therein as

follows~

"The pinion shaft for the derrick hoist in the Engine
Room No. 3 was not guarded . The shaft extends out about
4 inches with a key in it. The end of the shaft was
about one-foot from the derrick operator's leg ~ His
clothing could be caught in it."
~/

The amount of a penalty should relate to the degree of a mine
operator's culpability in terms of willfulness or negligence , the
seriousness of a violation, the business size of the operator,
and the number of violations previously discovered at the mine
involved. Mitigating factors include the operators good faith in
abating violative cond i tions and the fact that a substantially
adverse effect on the operator's ability to continue in business
would result by assessment of penalties at some particular
monetary level . Factors other than the six criteria expressly
provided in the Act are not precluded from consideration either
to increase or reduce the amount of penalty otherwise warranted.

563

(5) During the 2-year period immediately preceding the
issuance of the subject Citations Respondent had a commendable
record of prior violations: a total of two, one of which was a
guarding violation similar to those involved in this proceeding
(Ex . P-4).
DISCUSSION AND ULTIMATE FINDINGS
Citation No. 2080846
Inspector Shipe credibly testified that , having .in mind a
fatality in North Carolina caused by an unguarded rotating shaft
<Ex. P-5) , he observed the condition described in the Citat ion
and determined it to be a violation even though in several
previous inspections conducted over the prior 4 years or so he
had seen the same condition at Respondentis mine but h a d not
recognized it as a violation. ~/ When operating the machine ry {drum) the derrick hois t
operator sits facing it on an elevated bench with the e nd of the
large (3-4 inches in diameter) pinion shaft exposed appro ximate ly
4 inches-rotating directly in front of him at approximately knee
height 9 pointed not toward him but at right angle to his right ;
and about 1-foot fr om his legs (Tr. 15 , 16 , 50 , 51 ; Ex. R-1 ~.
The condition , as suchu was readily visi bl e~ The r o t atin g shaft
has a gear on it which pulls the drum and a Mkey• - which sticks
out on the shaft to help hold the gear to the shaft - could ~ gra b
anything that got wrapped around it" according to the Inspector
CTr. 17, 59) . The derrick hoist with the unguarded pinion shaft
had apparently been operated in the same manner by the same
operator, Ray Davis, for a period of many years <Tr. 73) .
The hazard envisioned by the Inspector was (1) that the
machine operator's clothing could become entangled in the shaft ;
pulling him into the machinery and suffocating him in the manner

6/ Sketches of the small shed-like building (engine room) where
the derrick hoist was located, were prepared at the hearing by
both the Inspector (Ex. P-6) and Mr. Craig (Ex. R-1). At the end
of the hearing, a view of the area was taken by the undersigned
which was unreported since the Court Reporter had no portable
equipment available to record the same. The view indicated that
neither sketch is entirely accurate .
In particular, neither
sketch correctly depicts the relative positions of the walkway
through the area relative to the elevated bench upon which the
operator sits and the shaft .
The direction which the unguarded
shaft faced relative to the operator ' s bench is correctly shown
in Ex. R-1 .
However, R-1 incorrectly shows the walkway behind
the bench, rather than its actual location between the shaft and
the bench.

564

depicted in Exhibit P- 5 , and (2) in like manner , other miners
coming into the building could be exposed to the same risk (Tr.
22-24 , 32 , 59, 60).
Had the operator, Mr. Davis, or the foreman in his absence,
actually been caught by the rotating shaft , the shut-off switch
for the hoist would not have been within reach <Tr. 25 , 45) .
In
addition to the machinery operator, other miners, who Respondent
admits would from time to time, come into the building for
various purposes, were placed in jeopardy by the violative
condition.
Although the parties differed on the probabilities of the
hazard posed by the violation ever coming to fruition v the
opinion of the Inspector that it was reasonably likely to happen
and that such could happen anytime is credited , particularly i n
view of the close proximity of the operator to the exposed shaft
in the ordinary course of his operation of the derrick hoist. Mr ~
Craig's opinion to the contrary, based at least in part on the
belief that no such accidents had happened previously v is not so
well founded . Must a serious injury or fatality actually occu r
before a hazard is cognizable? As noted above u had the cloth ing
of the operator or other person been caught i n the rotating
pinion shaft the shut-off switch would not have been within reach .
Thus, the elements for a serious, if not fatal , accident are
present: (1) an unguarded rotating shaft , (2) in close proximity
to the operator as well as the walkway whic h occasionally is
traveled by other miners. The possibility of the accident
occurring as contemplated by the Inspector clearly was not remote.
There was at least a reasonable possibility of a miner ' s
contacting the rotating shaft and suffering a resultant injury.
Secretary v. Thompson Brothers Coal Company , Inc., 6 FMSHRC 2094
<September, 1984). Such an accident could have occurred because
of the inadvertence or pre-occupation of a miner while performing
his routine or assigned tasks in an otherwise reasonable or
prudent manner . Aberrational conduct or reckless disregard of a
miner for his safety would not have been required for such an
accident to occur .
Respondent contends that the degree of its negligence with
respect to this violation should be significantly reduced because
MSHA for a period of several years prior to April 18, 1984, had
not found the condition to be an infraction. While the
Secretary's lack of enforcement does not estop later enforcement
if the safety standard is applicable, Secretary v. Burgess Mining
and Construction Corporation , 3 FMSHRC 296 (February , 1981), lack

585

of enforcement by the regulator can induce a mine operator into
relying on what it believes is a construction of the application
of the standard to its operation . In a similar situation the
Federal Mine Safety and Health Review Commission has rejected the
applicability of the doctrine of equitable estoppel to the
Secretary but viewed the Secretary • s erroneous interpretation as
a factor which should be considered in mitigation of any penalty
to be assessed, Secretary v. King Knob Coal Company , Inc . 9 3
FMSHRC 1417 (June, 1981), stating :
"The Supreme Court has held that equitable estoppel
generally does not apply against the federal government .
Federal Crop Insurance Corp . v . Merrill , 332 U.S. 380 ,
383-386 (1947) J Utah Power & Light Co . v. United States r
243 U.S. 389 9 408-411 {1917) . The Court has not expressly overruled these opinions ; although in recent
years lower federal courts have undermined the Merril l/
Utah Power doctrin e by permitting estoppel against the
government in some c ircumstances . See 9 f or examole ~
United States v. Lazy F.C. Ranch , 4ar-F. 2d 985, 987-990
(9th Cir. 1973) ; United States v. Georgia-Pacific Co. u
421 F.2d 92 f 95-103 (9th Cir . 19 70) . Absent the Supreme
Court ~ s expressed appr oval of that d ecisional
tr end , we
think that f idelity to preceden t re quires us tc deal
conservatively wit h this area of the law. This restrained approach is buttressed by the consideration
that approving an estoppel defense would be inconsistent
with the liability without f ault structure of the 1977
Mine Act.
See El Paso Rock Quarries, Inc., 3 FMSHRC
35 , 38 - 39 (1981).
Such a defense is really a claim that
although a violation occurred, the operator was not to
blame for it."
It is concluded from the circumstances presented here that
the pattern of MSHA 1 s non-enforcement does greatly mitigate the
Respondent • s culpability. One would reasonably infer from the
record as a whole that the hazard to miners' safety was actually
not recognized by MSHA or the operator over a great period of
time. Accordingly, the degree of Respondent's negligence is
found to be only minimal. On the other hand, in view of the
distinct possibil i ty for serious or grievous harm to result from
this violation, il is found to be very serious.
Citation No . 2080847
Upon walking into Respondent•s saw room on April 18, 1984,
Inspector Shipe observed 2 gang saws (Nos . 5 and 6) running while
unguarded. These two saws which had not been in operation for "a
long time 11 , had been placed into operation approximately two days
before the inspection. Respondent admitted the violation which
pertained only to saw #5 <Tr. 112), and also conceded that it was
aware that guarding (railing) was required on the 2 saws in

5GS

question since it was required on 4 others (Nos . 1-4) which it
had been operating previously. Mr. Craig testified that " he (the
inspector) hit us just a very few days before" the guarding was
to have been put in place.
However, on the day of the
inspection, railing or pipe to have been used for the guard was
not seen by the inspector in the area.
The flywheel, a huge wheel with spokes, is approximately 5
feet in diameter and constructed of heavy metal .
It runs fairly
rapidly and could catch a miner or other person walking, nearby.
The hazard envisioned by the In spector was that a person cou ld
slip, fall or stumble in to it or inadvertently walk into it .
He
indicated that occasionally there was "heavy traffic" ~long the
walkway which is immediately adjacent to the revolving flywheel
CTr. 108, 109). Both miners and visitors to the office, which is
adjacent to the gang saws ~ were placed in jeopardy of serious , if
not fatal, injuries by the hazard created by the violation.
There was at leas t a reasonable possibility of contact and injury .
Secretary v . Thompson Brothers Coal Company~ Inc.~ supra .
Thi s
is found to be a serious violation resulting from a high degree
of negligence on the part of Respondent.
The evidence bearing on all six mandatory penalty assessment
criteria having been considered with respect to the 2 violations~
it is concluded that the penalties proposed by the Secretar y in
this matter are appropriate and ampl y supported in the record
with respect to both Citations u
ORDER
Respondent is ordered to pay the Secretary of Labor
penalties totaling $ 182.00 ($91.00 for each violation) with in 30
days from the date of issuance of th is decision.

~d.· .~/-2--

Michae l A. Lasher, Jr.
Administrative Law Judge

Distribution:
Mary Sue Ray , Esq., Office of the Solicitor, u.s. Department of
Labor, 280 U.S. Courthouse, 801 Broadway, Nashv ille , Tennessee
37203 (Certified Mail)
Mr. John J. Craig , John J. Craig Company, P.O. Box 9300,
Knoxville, Tennessee 37920 (Certified Mail}
/blc

567

FEDERAL M INE SAFETY AN D HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE lAW JUDGES
333 W . COlfAX AVENUE. SUITE 400
DENVER. COLORADO 80204

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

APR J 6 1985

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-68
A.C. No. 42-00094-03504

v.

Sunnyside No. 2 Mine

KAISER STEEL CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
Appearances: James H. Barkley, Esq. 1 Office of the Solicitor g
U.S . Department of Labor, Denver, Colorado,
for Petitioner;
Jeffrey Collins, Esq .v Kaiser Steel Corpo ration 1
Colorado Springs , Colorado g
for Respondent .
Before:

Judge Lasher

Prior to commencement of formal hearing on March 1, 1985 ,
the parties proposed voluntary settlement of this matter which
involved a fatality. Respondent agreed to pay a penalty of
$2 . 000 . 00. The Secretary ' s motion to amend the Citation
(No. 2073181) to allege a violation of 30 C.F.R . 77 .404 (b) rather
404(c) as originally cited , 1; was granted at the same time .
There were no eyewitnesses t ; the fatal accident which resulted
when a "utility belt person" who was working alone was caught
between a return idle roller and a belt while performing maintenance or repairs. 2; The Respondent, a large coal mine operator
with a moderate history of previous violations during the 2-year

1/ Thus changing the nature of the infraction from performing
maintenance or repairs with the power on and the machinery
unblocked to operation of machinery by persons not trained and
authorized to operate such.
~/

MSHA's original penalty assessment was $206.00.

f5G8

period preceding the subject violation 3;, showed in considerable
mitigation of its culpability that the deceased miner had 11
years mining experience, had received some training, had previously worked around belts and was chairman of the Mine Safety
Committee. While the violation was found to be serious since it
resulted in a fatality only a low degree of negligence on the
part of the Respondent was demonstrated. 4; Abatement of the
violation was, upon notification, accomplished promptly and in
good faith by Respondent . 5; Upon consideration of the
representations of the parties , and it otherwise appearing
reas onable and proper , the proposed settlement was approved f r om
the b ench and is he reby a f f i rmed .
Accordingly , i f it has not previousl y don e so r Re spondent
shall pay the Secretary of Labor the sum of $2 eOOO . OO within 30
day s from the date hereof .

~ a, . ~J.. -

Michael A. Lashe r ; J r .
Administrative Law Jud ge

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)
Jeffrey Collins, Esq., Kaiser Steel Corporation, 105 E. Kiowa ,
Suite 200, Colorado Springs, Colorado 80901 {Certified Mail)

ll

Precise information with respect to the six mandatory penalty
assessment factors was submitted on the record by stipulation and
agre e ment of the parties.

4/ Although the decedent had received some prior training, it is
Inferred fr om Respondent's admission of the occurrence of the
violation that he was insufficiently trained.

21

Significantly, abatement was accomplished by retraining
employees in belt cl e aning and safety procedures, thus supporting
the Secretary's on-the-record amendment of the violation to one
involving training.

/blc

569

OFFICE OF ADMINISTRATIVE lAW JUDGES
333 W . COLFAX AVENUE . SUITE 400
DENVER. COlORADO 80204

BOBBY W. CAMPBELL,
Complainant

:q~s
V

lv

DISCRIMINATION PROCEEDING
Docket No. WEST 83-86-DM

v.
MSHA Case No. MD 83-15
DANIELS CONSTRUCTION COMPANY v
Respondent
DECISION APPROVING SETTLEMENT
Beforeg

Judge Carlson

The partiesv through counsel , have filed a stipulation
which settles all matters at issue in this discrimination
proceeding.
At t he center of the settlement is an agreement by the
respondent ·to pay a su.m of money to complainan ·t in return for
whi ch compla inant agrees not ·to seek employment. with r espondent
or its subsidiaries or divisions, and in which complainant
agrees to withdraw his complaint and to release respondent from
any and all claims.
The parties further stipulate that respondent admits no
violation of the Federal Mine Safety Act or any other law, state
or federal, in terminating complainant's employment.
I conclude that the proposed settlement should be approved
in all respects. Respondent shall therefore pay to complainant,
with dispatch, the monies agreed upon, whereupon all other
provisions of the settlement shall be deemed in effect, and this
proceeding shall be dismissed with prejudice.
SO ORDERED.

John A. Carlson
Administrative Law
Distribution :
James w. Nobles, Jr., Esq., Post Office Box 1733, Jackson,
Mississippi 39215
(Certified Mail)
Carl B. Carruth, Esq . , Thompson, Mann and Hutson, 2200 Daniel
Building, Greenville, South Carolina 29602
(Certified Mail)
/ot

570

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

PLATEAU MINING COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. WEST 84-106-R
Citation No . 2213805 ~ 1/5/84

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

Star Point No . 2 Hine

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

CIVIL PENALT Y PROCEEDI NG

v.

Docket No. WEST 84-122
A.C . No. 42-00171-03523
Star Point No . 2 Mine

PLATEAU MINING COMPA NY~
Respondent
DECISION APPROVING SETTLEMENT
Appearances : John A. Snow , Esq., VanCott, Bagley, Cornwall &
McCarthy, Salt Lake City, Utah,
for Contestant/Respondent;
James H. Barkley, Esq . , and Margaret Miller, Esq . ,
Office of the Solicitor, U.S. Department of Labor ,
Denver, Colorado,
for Respondent/Petitioner.
Before:

Judge Lasher

Prior to commencement of formal hearing on March 4, 1985,
the parties submitted a proposed settlement of this
contest/penalty proceeding. The parties agreed to a penalty
assessment of $9,000.00 for the violation of 30 C.F.R.
§ 75 . 1722(c) cited in Citation No. 2213805 1; which involved a
fatality .
·
-

ll

The citation was modified by Petitioner and approved on the
record to reflect its issuance under section 104(a) of the Act
rather than 104(d)(l).

571

Based on stipulations entered on the record 2;, it was found
that the Respondent , a large coal mine operator with a moderate
to average history of previous violations during the 2 - year
preceding January 5 , 1984 (the issue date of the subject
citation) , proceeded in good faith to achieve prompt abatement of
the violation upon notification thereof. With respect to
gravity , it was determined on the record that the violation
resulted in the fatal injury to the operator of a shu t tle car as
described in the citation . A l ow degree of negligence on the
par t of the Respondent was also s t ipulated and determined on the
record.
Upon due consideration of the premises , the settlement was
approved from the bench and is here affirmed.
Respondent, if it has not previously done so , shall pay the
Secretary of Labor the sum of $9 9 000 . 00 on or before 30 days from
the date hereof. ~/

~(:.(.(aLt~-- do ;;{/.,t:-~f-·1" } ··
Michael A. Lasher g Jr .
Administrative Law Judge
Distribution:
John A. Snow, Esq ., VanCott , Bagley , Cornwall & McCarthy, 50 S.
Main Street , Suite 1600, Salt Lake City , Utah 84144 (Certified
Mail)
James H. Barkley , Esq., and Margaret A. Miller, Esq., Office of
the Solicitor, U.S . Department of Labor, 1585 Federal Building,
1961 Stout Street , Denver , Colorado 80294 (Certified Mail)

2/ The parties emphasized that their stipulations were submitted
solely for purposes of resolving this proceeding under the
Federal Mine Safety and Health Act of 1977 and were to be
confined thereto .

ll

Consistent with the penalty settlement , the contest in Docket
No . WEST 84 - 106-R is denied.

/blc

572

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

l9 1985
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'I'RATION (lviSHA) ,
Petitioner

Docket No " LAKE 85-4
A . C. No . 12-00337-0352 1
Lynnville Strip Mine

v.
PEABODY COAL COMPANY ,
Respondent
DECISION
Appearances :

Miguel J. Carmona, Esq. , Office of the Solicitor 7
U. S. Department of Labor : Chicago u Illino i s ;·
for Petitioner ;
Michael 0 . McKown , Esq. ; St . Louis , Missour i ,
for Respondent .

Before:

Judge Steffey

. Pursuant to a notice of hearing dated January 14, 1985,
a hearing in the above-entitled proceeding was held on February 14 and 15, 1985, in Evansville , Indiana, 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 and had made · their respective closing arguments, I
rendered a bench decision, the substance of which is set forth
below {Tr. 414-443):
In a civil penalty case, the issues are whether violations occurred and, if so, what penalties should be assessed ,
based on the six criteria set forth in section llO{i) of the
Act.
Although counsel for the Secretary of Labor seemed to
be asking me in his closing argument to make a ruling on
whether the order was valid or not, in a civil penalty case,
the validity of the order is not considered to be an issue.
The Commission so held in Wolf Creek Collieries Company, a
decision which is not included in the Commission's reports,
but which was issued on March 26, 1979, in Docket No. PIKE
78-70-P .
In that case, the Commission cited the decisions
of the former Board of Mine Operations Appeals in Plateau
Mining Co. 1 2 IBMA 303 (1973), Buffalo Mining Co., 2 IBMA
327 (1973), and North American Coal Corp., 3 IBMA 93, 120

~)73

(1974}, in which the Board had made similar rulings.
The Commission reiterated that ruling in Pontiki Coal Corp. , 1 FMSHRC
1476 (1979}.
For the above reason, I shall make findings as to whether
violations occurred,. and if I find a violation, I shall assess
a civil penalty , but I shall not rule on whether the order was
a technically valid order issued under section 104(d} of the
Act.
The parties entered into some joint stipulations , which I
think should be a part of the decision. · Those are as follows:
1. Peabody Coal Company owns and operates the Lynnville
Strip Mine in Lynnville, Warrick County , Indiana .
2. The Lynnville Strip Mine is subject to the Federal
Mine Safety and Health Act of 1977.
3. The Federal Mine Safety and Health Review Commission
has jurisdiction o~~r this proceeding.
4. On April 4, 1984, Dennis Springston, a miner working
at the Lynnville Mine, was killed during an accident at that
"rtfirn:r~· · - -·
5. On April 5 , 1984, Inspector Joseph L. ~ensley , a duly
authorized representative of the Secretary of Labor, issued
Citation No . 2322072 and Order of Withdrawal No. 2322073, in
reference to the above-mentioned accident.
6.
During the calendar year prior to the issuance of
the citations involved in this case, the Lynnville Strip Mine
had a productic~m of approxima.tely 3, 287 , 102 tons of coal.
7. During the calendar year prior to the issuance of
the citations involved in this case, the controlling entity
had a production of approximately 51,660 , 483 tons of coal.
8. Payment of the penalties assessed by the Mine Safety
and Health Administration for the citation and order of withdrawal involved in this case would not affect the ability of
Peabody Coal Company to remain in business.
The evidence in this p~oceeding supports the following
findings of fact, which I shall set forth in enumerated paragraphs:
1. Citation No. 2322072, which is Exhibit 1 in this proceeding, was issued on April ' S , 1984, under section 104(d} (1}
of the Act, citing a violation of 30 c . F.R . § 77.1006(a} .
The citation alleged that men were working in an area near
ahd adjacent to an unstable and dangerous highwall . One

· ~574

'

.....

hundred seventy-four feet of loose, unconsolidated material of
the highwall collapsed and covered up a KW Dart 110-ton truck
that was being loaded with coal. The driver of the KW Dart
truck was fatally injured. The collapse of the highwall
covered up a pickup truck and also damaged the 170(L) loader,
and another pickup truck. Citation No. 2322072 was terminated
on April 6, 1984, pursuant to a subsequent action sheet issued
that day, as modified by another subsequent action sheet dated
December 3, 1984.
2. Section 77.1006(a), which was alleged to have been
violated in Citation No. 2322072, reads . as follows:
"Men,
other than those necessary to correct unsafe conditions, shall
not work near or under dangerous highwalls or banks. 11

·:-.·

..
..··

3. Order No. 2322073, which is Exhibit 3 in this proceeding, was issued on April 5, 1984, under section 104(d) (1) of
the Act, citing a violation of section 77.1001, and alleging
that "[l]oose, hazardous and overhanging material on the highwall of the 1150 No. 2 Pit was observed on the entire length
of the approximately 2,800 foot highwall. This condition was
observed during an investigation of a fatal accident."
4. Section 77.1001, which was alleged to have been violated in Order No. 2322073, reads as follows:
"[l]oose,
hazardous material· slra"l_l _ b_e ·-s·t ·r±ppe·d for a safe distance from ·
the top of pit or highwalls, and the loose unconsolidated
material shall be sloped to the angle of repose, or barriers,
baffle boards, screens, or other devices be provided that
afford equivalent protection."
5. A modification of Order No. 2322073 was issued on
April 10, 1984. That modification stated that it was issued
to reflect the following change (Exhibit 3, p. 3):

. ....

Loose hazardous and overhanging material on the
highwall of the 1150 No. 2 Pit begins at the north
·end of the pit and extends approximately 1,090 feet
southeast on the highwall, for :.a total length of
1,090 feet. Are~ No. 2 begins at a point 110 feet
south of the center of the entrance road, at the pit
floor, then extends south approximately 380 feet,
for a total length of 380 feet.
6. A subsequent action sheet was written on April 16,
1984, and that sheet terminated the order with the statement
that 11 [t]he north end of the pit, approximately 1,090 feet,
was posted, and workmen were removed from the area. Area No.
2, 380 feet south of the center of the entrance road at the
pit floor, berms were installed approximately 8 feet in height
and approximately 30 feet from the highwall" (Exhibit 3, p. 4).

575

7.
Inspector Hensley, who issued both the citation and
the order initially, but who did not modify or terminate them ,
examined the highwall from the pit area and from the top of
the highwall, and concluded that there was a large amount of
unconsolidated or loose material . He observed cracks in the
wall which were gapped open from 4 to 6 inches. He also observed 14 charged holes in which explosives had not been detonated . Two such bags of explosives are shown in the photograph, which is Exhibit 11 in this proceeding . He believed
that the violations of sections 77.1006(a) and 77ol001 were
associated with a high degree o f negligence because Peabody
had failed to keep miners away from the hi ghwall , which man-·
agement knew was unsafe because of the large number of entries in the onshift books showing the pit foremen vs comments
about the bad conditions observed in the highwall (Exhibit
13) . He also expressed the belief that the violations were
very serious because a fatal accident had occurred as a re ~
sult of them. He believed that management should have constructed a berm at the base of the highwall to catch falling
material when there was an indication of loose material in
the - highwall, as indicated in the onshift book , and he thought
that the berms would have kept both miners and equipment away
from the dangerous highwall o

B. Inspector Ritchie investigated the accident by interviewing miners and foremen who were working when the accident
occurred.
The interviews of Peabody's miners , foremen, and
mine officials have been transcribed and are a part of Exhibit
B in this proceeding.
Inspector Ritchie also prepared a report of the accident , which is Exhibit 4 . Based on his examination of the accident site , he concluded that the violations of sections 77.1006(a) and 77.1001 had occurred.
The
inspector agreed , on cross- examination , however, that he cannot be certain that Peabody could have determined that a fall
was imminent, based on an examination of the highwall prior
to the occurrence of the accident .
9 . Charles Hester is a pit foreman who made some of the
entries in the onshift book, Exhibit 13, and he referred to
the highwall as being " ragged" on many pages of the onshift
book , but he insisted that his use of that term merely indicated that the wall was uneven and did not mean that he
thought the wall was unsafe for work to be performed in close
proximity to the wall.
10 . Cecil O ' Dell is an MSHA field office manager who
assigns work to inspectors and evaluates thei:· work. He believed that use of the word " ragged" meant that the highwall
was very unreliable and that the use of terms like "some bad
areas", shown in the onshift book, indicated that Peabody's
foremen were expressing existence o~ unsafe conditions. He
thought that the onshift reports showed that the foremen had

5'76

failed to take proper corrective action , such as keeping the
miners away from the highwall , or eliminating the hazards by
barricading or constructing berms at the foot of the highwall.
11 . Gaylon Leslie is a shooter and has been for 10 - 1/2
years. He is also chairman of the safety committee, and he
said there was overhanging material on t h e day of the accident,
because he saw it . He had received complaints from miners
regarding the 1150 No. 2 Pit. He examined the basis for their
complaints and agreed with their belief that the highwall was
hazardous , especially because of the practice of blast casting 1
which is a method of using explosives to thrmv overburden into
the pit rather than just to shake it loose by lifting overburden straight up, as is done in conventional shooting .
Leslie was with Inspector Bryant, who made a spot inspection
of the 1150 No. 2 Pit on the day before the fatal accident.
He said that Inspector Bryant did not cite any violations as
to the highwall, but Bryant was close to the No. 4 Panel ,
shown on the mine map (Exhibit A), rather than the northern
end of the pit, where the accident occurred .
Bryant also
testified that he saw no conditions requiring issuance of a
citation on the day before the accident even though he di d
inspect the very same area where a berm had to be constructed
in order to abate Order No . 2322073 .
12. Leonard Hughes was superintendent at the time of
the fall of the highwall .
He has 38 years of experience, 13
of them being at Lynnville . He stated that highwall condi tions vary and can go from a safe condition to an unsafe condition as the result of rain, wind , freezing , and thawing.
He had not seen a fall of the magnitude of the one which occ urred on April 4, which was about 170 feet long and 15 feet
t hick .
The term " ragged ", used in the onshift book, to him,
means 11 Uneven ", but not necessarily hazardous . He said that
they were having problems with the highwall and with the
spoil bank, so they went to blast casting as an alternative
which they hoped would improve both production and safety .
Nevertheless , in his interview by MSHA investigators , as shown
in Exhibit B, he recognized that a sloping highwall would have
prevented the magnitude of t he fall which occurred on April 4.
13. Tom Hughes is a blasting foreman.
He examines the
top of the highwall which has about 4 to 5 feet of dirt on
t op .
He drills from sites on top of the highwall as well as
from locations down in the parting in the pit, and has to
evaluate the condition of the highwall from both the top and
the pit .
His entries in an onshift book , which is restricted
to the drill area , and wh ich is Exhibit 14 in this proceeding,
show that on at least one occasion , he instructed his crew to
leave 25 to 30 feet of parti ng in the pit in order to stay
away from the highwall (Exhibit 14, p. 21).
He also explained

577

how a change in placement of blasting caps overcame the problem of explosives failing to go off, so that problem ceased
to exist after the accident on April 4. He claimed that failure of the third row of holes to explode on April 4 made the
highwall more solid than if they had exploded, because there
was less breaking of the rock at the rear of the highwall than
would have occurred if all the charges had exploded as was
intended.
14. Charles Bellamy is a safety supervisor of the entire
mine , and he believed, from his interviews of personnel present at the time of the accident, that foremen and miners coul1
not have anticipated the fall based on an examination of t.he
wall .
He was with Inspector Hensley on April 5 , when the citation and order here involved were written , and he does not
think that the inspector properly described the area of the
loose rock.
He stated that they constructed the berm to get
the order terminated, but that he did not believe the wall had
loose materials on it.
15. Bob Hart is Peabody i s Indiana drilling and blasting
manager. He testified that they went to the blast casting
method because they had reached a point that it was u neconomic
to mine coal if they had to move more than 15 cubic yards of
overburden to obtain one ton of coal. Doubling the amount of
explosive moves more overburden with blasting and increases the
yardage obtained by use of the dragline.
He agreed that after
the accident, Peabody went to using angle drilling so that
blast casting could continue to be used to achieve economy,
while leaving an increased slope on the highwall to improve
safety of the highwall's condition.
16 . Conny Postupack is an official with Atlas Powder
Company, and he explained that blast casting was begun in
1935, and then became somewhat unfashionable because explosives lost their economic advantage to the increased economies of scale accompanying the use of draglines, until the
increasing labor and material costs associated with mechanical overburden removal were overcome by economies in the manufacturing of explosives . Consequently, blast casting is now
in vogue and is being used in Pennsylvania, West Virginia,
Ohio, Kentucky, Wyoming, New Mexico, and Alaska.
He emphasized that unconsolidated materials are not subject to blast
casting, as there must be good integrity of the formation
being shot.
17. Curtis Ault is a supervising geologist who works
for the Indiana Geological Survey . He has been working for
the last 7 years in studying faults and joints in Indiana .
A fault is a crack with slippage between the materials making

578

up the sides of the fault, whereas joints are cracks without
any slippage of the materials. His studies are based on examinations of exposed outcroppings of bedrock and rock exposed
by mining in coal mines or construction. He expressed the belief, based on testimony of witnesses Hart and Leslie, and
pictures made by MSHA, especially Exhibits 7, 8, 11, and 12,
that the fall of the highwall in the 1150 No. 2 Pit was caused
by joints. He cannot be certain of that belief because he did
not personally examine the Lynnville Mine here involved .
Moreover, his testimony shows that the joints he obs e rved in
the pictures were not parallel t o the slice of rock which fell 1
and that would mean that Peabody was constructing t he highwal l
in the direction which would have been recommended in order
to prevent a fall as a result of the presence of joints in
the overburden which had been blasted .
I believe that those findings cover the important aspects
of the evidence which was introduced in this proceeding.
The Secretary's attorney asked me to find that the violations , alleged in Citation No . 232207 2 a n d Order No . 2 3 2 2073 f
occurred .
Counsel for Peabody argues that his evidence shows that
the violations did not occur, and he also pointed out that
when there is a fatality and MSHA conducts an investigation,
there is a considerable amount of pressure on the inspectors
to find something wrong, and he feels that that gives them a
motivation to be more critical after such an accident than
they would be otherwise.
I agree with Peabody's counsel that such pressure undoubtedly exists and that is one of the reasons that I asked
a great many questions during the hearing which were intended
to bring out all the good aspects that Peabody was trying to
present, because it always worries me in a case of this nature that MSHA may unfairly cite violations because of the
pressure of finding a problem when a fatality has occurred.
I have reviewed the evidence in g~eat . detail and I believe
that there is probably a middle giouna between what MSHA has
presented and what Peabody has introduced, and that is often
the case in these proceedings.
I was at first disposed to find no violations, but
Mr. McKown introduced the transcript from MSHA's investigation, and I read that in great detail last night.
That is
Exhibit B in this proceeding and that exhibit is made up of
testimony of the miners and foremen who were present when
the fatality occurred.
That exhibit contains some statements
by the witnesses which motivated me to believe that there was
considerable support for the inspectors' belief that violations had occurred.

579

The difficulty about finding a violation of section
77.1006(a) is that all of the witnesses to this fall of the
highwall stated that the wall, just before it fell, looked as
well as it had for some time, and that they did not see anything that would indicate that it was about to fall .
So if
one takes that testimony, by itself, then he would conclude
that there is no way that Peabody could have been aware that
men were working near a highwall which was hazardous .
The Commission has held that an operator is liable
without regard to fault for the occurrence of a violation.
United States Steel Corp .; 1 FMSHRC 1306 , 1307 (1979) . Consequently, Peabody may be held liable fo~ the violation despite
the fact that the record contains evidence tending to show that
Peabody may not have been at fault for occurrence of the violation.
In addition to the statements p referred to above; of
witnesses who said that they could not have determined from
looking at the wall, prior to its fall, that a massive rock
fall was about to occur, there is testimony by the superintendent, Leonard Hughes, and by the explosives expert, Bob
Hart, to the effect that the company went to the blast casting
method in order to achieve economies? and it did so based on
the fa ct that blast casting had been done at other Peabody
mines without any apparent problems . The evidence discussed
above makes it difficult to say that management was necessarily at fault for using blast casting at the 1150 No. 2 Pit,
particularly since mine officials had tried that method at
the 5900 Pit and had had no problems, but that was a different
kind of operation, with a shovel instead of a dragline.
On the other hand, there is considerable evidence to support a conclusion that Peabody ought to be held at fault for
the violation of section 77.1006(a). For example, when MSHA
was conducting its investigation, the coal loader operator,
Raymond Speicher, said that he did not like vertical walls;
that they have given a lot of trouble.
He specifically stated
that after they started using blast casting, there was "ragged
looking highwall, rocks breaking out every now and then.
I '
always like a sloped bank myself" (Exhibit B, p. 41).
Speicher also was of the opinion that : rain had gone into a
crack behind the large hunk of wall that fell out and had
weakened it, and that that accounted for the fact that it
fell.
Mike Denton , the oiler on the coal-loading machine, also
stated that he prefers the siope, and it seems that the slope
is a safer wall (Exhibit B, p. 42).
Ron Sutton, the tractor operator, stated that he does
not like the vertical highwall at all. He said they had a
slide just after that highwall was opened up, and they had to
go back and reclean it. He also pointed out about the bags
of powder that he found unexploded. He stated that he was
afraid to haul the explosives on his tractor and that he put

530

them off in a separate place by themselves.
He said he had
worked with the tractor under the highwall more than anyone ,
and that he had seen 50 slides on slopes, but the way it is
now , with the vertical walls, you cannot get away if you are
sitting next to that wall, because the whole wall will come
down .
He stated that he is against vertical walls . He said
that Peabody used to remove the dirt at the top of the highwall,
but Peabody does not do that any more .
Sutton stated that the
dirt collects rain and that increases the burden on the top of
the highwall . The dirt soaks up the water a nd results in
·slides, or in complete collapse o f the wall , as occurred on
April 4 (Exhibit B, pp . 46-48 ).
Fred Leatherland , the water boy , stated that the slope
is less dangerous, and he feels they have a better chance of
getting out of the way if materials fall (Exhibit B 8 p. 52 ) .
He said that he does not l ike the ragged p vertical highwal l
that they have been having (Exhibit B , p . 54) .
When the superintendent, Leonard Hughes, was interviewed ,
he stated unequivocally , and repeated i t twice u that if the
highwall had b een sloped on Apri l 4 r ·the wall would n ot h ave
toppled down (Exhibit B , pp . 59-6 0)" He also stated that
they had been h aving trouble with the hi g hwall ever since
1971 (Exhibit B, p. 63) •
When Bob Hart , Peabody ' s drilling and blasting manager,
was interviewed, he stated that he had not talked directly to
the people who work in the pit , and that he did not know what
their opinion was (Exhibit B, p. 74) .
Finally, Gaylon Leslie stated that he thinks blast casting works all right in the 5900 Pit , but that he does not
think it works with the 1150 No. 2 Pit, and he said until
somebody can show him a good highwall in that pit, he will be
against use of blast casting in that area (Exhibit B, p. 74) .
I believe that when one reviews all the testimony of the
people who were down there exp osed to the highwall , that Peabody cannot success f ully argue that i~ did not know that that
highwall was hazardous .
If Peabody's management did not know
it, it should have known it , because Bob Hart should have
known and found out what the men felt who were working in that
pit. For the reasons I have given , I find that a violation of
section 77 . 1006(a) occurred. Having found a violation, it is
necessary that I assess a penalty.
Tazco, Inc., 3 FMSHRC 1895
(1981) .
With respect to the six criteria, the parties' stipulations deal with two of t hose criteria. One of them is the
size of the operator's business . Paragraphs 6 and 7 of the
joint stipulations, which have been quoted above , show that a

581

·.·

large operator is involved. Therefore, under the criterion of
the size of the operator's business, a penalty in an upper
range of magnitude would be appropriate.
Paragraph 8 of the joint stipulati ons stated that payment
of civil penalties would not adversely affect Peabody's abi l ity
to continue in business.
Consequently, the penalty does not
have to be reduced under the criterion that payment of penal·ties would cause the operator to discontinue in bus'iness .
There was a s·ta. tamen·t by one of the inspectors ·co the
effect that Peabody showed a good-faith .effort to ach1eve rapid
compliance after the viola:cion vvas cited.
:J: >c has been my prac-tice not to increase a penalty under ·that criterion unless a
lack of good faith is shown , and it has been my prac~1ce not
to reduce a penalty under that criterion unless there is some
outstanding effort. made to achieve compl iance .
If there is
normal effort ·to achieve compl iance r vrhich appeared to be ·the
si tua·tion in this case r then the penalty shouJ..d neither be
raised nor lowered under the criterion of good-faith effort
to achieve compliance.
Insofar as the histor y of previous violations i s con cerned, Exhibit 15 in this proc~edi~g shows that Peabody has
not previously been cited for a violation of section 77.1006(a).
Therefore, no portion of the penalty should be assessed under
the criteri on of history of previous violations.
The two criteria of gravity and negligence remain to be
considered. As I have already indicated at some length?
there is a considerable body of evidence showing that Peabody
had a reasonable basis for assuming that if it adopted the
blast casting method, which has been described above, there
was no reason to assume that a highwall would fall and kill
anyone.
The company had done that type of mining at mines in
other geographical locations and it had also succeeded in
using that method in the 5900 Pit at the Lynnville Mine here
involved. Consequently, I do not think that I can agree with
Inspector Hensley that there was a high degree of negligence
in the occu rrence of the violation .
I believe that there was some ordinary negligence, because as I have pointed out, I do believe that when Bob Hart
was giving advice to the company about how to achieve econo mies with explosives, he should have followed up on his recommendations, after they were adop·ted, by discussing the experimental nature of blast casting with the miners who were exposed to any hazards associated with those experimental techniques, even though the method was adopted with a good-faith
belief that it would be safeo
I believe that additional care
should have been ·taken in determining just what was going on

582

in the pit as a result of utilizing that method. For the
above reasons, I find that there was some ordinary negligence
which warrants assessment of an amount of $500 under the criterion of negligence.
When it comes to the criterion of the gravity of the violation, I must recognize the fact that the fall caused the death
of one miner and completely covered up a 110-ton truck , as well
as a pickup truck, along with doing some damage to a large
shovel in the area. A fall of that magnitude is necessarily
serious and I believe that a penalty of $1 1 000 should be assessed under the criterion of gravity , so that a total penalty
of $1,500 is warranted for the violation of section 77 . 1006(a)
alleged in Citation No. 2322072.
I shall ~ow turn to the ques~ion of whether a viola~ion
of section 77.1001 occurred . .. Some conflicting evidence exists
with respect to that violation because, as Peabody~s counsel
pointed out in h is argument, Inspector Bryant was at the Lynn·ville Mine on April 3 , 1984 , prior to the occurrence of the
accident on April 4, 1984 ; and prior to i ssuance of Orde r No .
2322073 on April 5 .

It is a fact that Inspector Bryan'c on April 3 was in t.he
same area, which was later the subject of construction of a
berm 8 feet high to protect people from any fal ls from the
highwall which had been cited on April 5 for existence of
loose and hazardous materials. The aspect of the evidence
that makes it difficult to find a violation of section 77.1001
is that if Inspector Bryant smv that same area on April 3 and
did not think the loose and hazardous materials constituted a
violation, why would existence of those materials suddenly be
a violation on April 4, when all people seem to agree that
a massive fall of rock 174 feet long would not have adversely
affected the remainder of the highwall at a place which was
a distance of at least 500 feet from the place where the highwall collapsed?
I do not know whether the preponderance of the evidence
would support a finding of a violation of section 77.1001 except for the fac t that Gaylon Leslie was present after the
accident had occurred, and he said, unequivocally, that he
saw loose and hazardous materials on the highwall.
I do not
think that he would have stated that he saw loose materials
if they had not existed and I do not think Inspector Hensley
would have either, for that matter.
Nevertheless, it is a fact that one inspector did not
find loose material in a hazardous amount on April 3 and
another inspector did find loose material on April 5.
Another reason which supports the finding of a violation of
section 77.1001 is that photographs were introduced in this
case which show some portions of the highwall which were not

583

in the immediate vicinity of the fall (Exhibits 5 through 12) .
There are enough cracks and enough irregularities about the
highwall shown in those pictures to support a finding that
there were loose and unconsolidated materials on the highwall
on April 5, 1984. Therefore, I find that there was a violation of section 77.1001.
Having found a violation, I must assess a civil penalty.
In discussing the penalty assessment for the previous violation, I covered the two criteria of the size of respondent ' s
business and the fact that payment o f penalties will not cause
respondent to discontinue in business .
The inspector indicated that a good-faith effort was made
to correct the violation . Achieving comp l iance ·was a simple
matter insofar as 1,090 feet o f the highwal l was concerned b e cause that portion of the highwall was dangered off and the
men were reinstructed concerning safe conduct near highwal ls .
Compliance was achieved with respect to the remainder of the
highwall by the erection o f an 8-foot berm at the bottom o f
the highwall. As I have already i ndicated above , since thi s
was an instance of normal abatement , t he penalty s h ould neither
be increased nor decreased under that criterion.
Insofar as the history of previous violations is concerned, Exhibit 15 shows that Peabody previously violated
section 77.1001 once on May 17, 19~2 , and once on February 10,
1984 .
In the legislative history, Congress indicated that it
wanted a civil penalty to be increased two or three times over
a previous penalty for a violation of the same mandatory
standard which is before a judge or the Commission for assess ment of a civil penalty if that same standard has been violated several times immediately preceding the occurrence of
the violation under consideration. !/
In this instance, since one of the previous violations
occurred almost 2 years before the violation here involved
was cited , I do not think that that one would merit assess ment of any portion of the penaltY. un~er history of previous
violations, but since one of the ~revious violations did occur
on February 10, 1984, just 2 months before the violation cited
here , I believe that I necessarily must assess some portion of
the penalty under history of previous violations . Therefore,
under that criterion , a penalty of $50 will be assessed.
The two criteria of gravity and negligence remain to be
considered.
In evaluating the criterion of negligence, it is
appropriate to examine the entries regarding the highwall made
by Peabody's foremen in the daily onshift report.
The onshift
report was introduced as Exhibit 13 in this proceeding. The
1/ S . REP. NO. 95-181 , 95th Cong., lst Sess . 43 (1977),
reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY
AND HEALTH ACT OF 1977, 631 (1978).

r34

~)

entry for the second shift on March 3, 1984, indicates existence of "some bad areas."
On March 4 for the first shift, there is an entry ,
" stable in some and some loose; rock falling due to rain".
On the second shift, there is an entry, "unstable".
On March 5 for the first shift, there is an entry, "some
areas have slides due to heavy rain" . On the second shift ,
"several bad areas" .
On March 6, first shift, " some slides v l oose
second shift, 11 some bad areas 11 •

r ock "~

On March 7 , first shift , 01 some areas fair ; some have
loose rock" : on the second shift f " some bad areas •v .
On March 8 , on the first shift , "cleaned u p slides : s o me
areas not good"; second shift , "several bad areas" .
On March 9 , second shift , " some bad a reas ': .
On March 12 , the entry "ragged" a p pears . Cha rles He s ter
testified that an entry of " rag~ed" should not be interpreted
to mean that the highwall was necessarily hazardous. Therefore , I am omitting from my discussion 17 references to the
highwall as being "ragged".
On March 13 , first shift , "some areas poor"; also on
March 13, there is an entry "some small slides noticed during
third shift; all men warned" .
On March 14, first shift, "some areas poor; south end
flagged and men warned on unstable highwall".
On March 15, first shift, "Squaw Creek truck refused to
drive under highwall , so this area will be flagged and no
personnel are to go under this wall until corrected".
:
.
On March 16, first shift, "k~e~~ll personnel away from
highwall and loading spoil side only ; poor condition; is not
stable; area flagged"; second shift, "rocks falling from
recent bad weather"; third shift, "very bad area; falling off
due to heavy rain; all men warned of wall condition".
On March 17, first shift, "no one working under highwall;
all operations will be performed under area of bad highwall".
The foreman may have misstated himself in the entry just
quoted, but that is the way the entry reads. The entry for
the third shift on March 17 states existence of "bad rock
slide but appears to be in stable condition".

585

On March 18, first shift, "highwall in south end bad and
shift foreman was a\.;are of this"; second shift, "highwall,
north end stable -- south end bad . All personnel made aware
of this".
On March 19 , first shift , "some areas appear to be not
stable".
On March 20 , first shi f t , "some areas not stable ; men
warned"; third shift , "highwal l in south end of pi t i s ve r y
unstable due to rain . Men warned of said condition n.
On March 21 , first shift ~ r: some areas poor .
I n clement
weather. Some areas not stable" ; second shift ,_ npoor in 'i!JOrk ing area "~ third shift , ~ poor i n south end , but a ppears to be
in a stable state ".
On March 22, first shift, " some areas fair . Some areas
have loose rock and slides'' . Third shift , "Poor condi tions
exist . All men warned of bad walls ~~ .
On March 23 v f i rs t shi f t , " f air : some area s n o t
third shift , " poor ".

goo d

3

~

On March 24, first shift, "Fair; some areas loose rock".
On March 25, first shift, "Appears stable in work areas
at present time".
On March 26 , first shift , "loose rock; fair ; some areas
not stable'' .
On March 27, first shift, "fair; some areas not stable" .
On March 28, first shift, "water, mud, rocks coming off
highwall due to heavy rain"; third shift, "appears to be in
a stable condition".
On March 29, first shift, "fair; some areas poor''; third
shift, "fair, but stable".
On March 30, first shift, "fair; some areas not real
good"; third shift, "stable condition; men not working under
highwall on third; also men warned of highwall condition".
On March 31, first shift, "fair; some areas poor".
All entries for April 1 and 2 indicated that the condition
of the highwall was "fair"; one entry for the second shift on
April 1 evaluated the highwall as "stable".

·586

On April 3 , first shift, the highwall was described as
"fair" with "some rocks falling off due to rain " .
The entries quoted above were made by the shift foremen
during the entire month of March and right up to the day before
the accident occurred when a huge portion of the highwall fell.
There was a considerable amount of negligence in Peabody's failure to take some corrective action to assure that the highwall
was maintained in a safer condition than it was . As I have
indicated in my findings of fact, Peabody found, after the
fatal accident, tha t it could continue to utilize the blast
casting method and still manage to put a slope on the highwall
so as to provide it with additional stability which would avoid the vertical state which contributed to the fact that a
huge portion of the wall suddenly fell on April 4 without prior
warning .
In such circumstances , I believe that a penalty of
$2,000 should be assessed under the criterion of negligence .
In considering the gravity of the violation , it is necessary to bear in mind that the violation here under consideration is the loose and unconso l idated materi a l wh i c h existed on
the p ortion o f the highwall whic h d id not f al l , a s o pposed ·to
the portion which did fall . Those people who had examined the
portion of the highwall which did fall all seemed to agree
that it did not look as if it would fall on that particular
day . The loose materials , however , were not confined to just
that portion of the wall which fell because the inspector
cited an expanse of 2 , 800 feet as having loose and hazardous
and overhanging materials on it . While the order was modified ,
as I have explained in the findings above , to reduce the extent of the loose materials to 1,090 feet that were dangered
off and to indicate that a berm was constructed along an expanse of 380 feet, the fact remains that an area of over 1,400
feet of the highwall had loose and unconsolidated materials on
it .
The entries of the foremen in the onshift book, as given
in detail above, do not specify the location of the loose
materials they are describing in their frequent references to
"bad areas" and "loose rock".
Some ·of the witnesses stated
that they had never seen a "good" highwall and Tom Hart testi fied that he never rated any highwall as being better than
"fair" , and that "fair" meant to him that it was safe to work
under the wall . The fact that the foremen on several occasions
warned the miners that it was not safe to work near the high wall is a further indication that they believed that the loose
materials were hazardous. The preponderance of the evidence ,
therefore, supports a finding that the violation of section
77 . 1001 was a serious violation and that a penalty of $1 , 000
should be assessed under the criterion of gravity .

587

In the above discussion, I have indicated that a penalty
of $50 should be assessed under the criterion of history of
previous violations, that $2,000 should be assessed under the
criterion of negligence, and that a penalty of $1,000 should
be assessed under the criterion of gravity, making a total penalty of $3,050 for the violation of section 77.1001.
WHEREFORE, it is ordered:
Peabody Coal Company, within 30 days from the date o f
this decision, shall pay penalties totaling $4 , 550.00 . The
penalties are allocated to the respective violations as follows :
Citation No . 2322072 4/5/84 § 77 . 1006(a ) •.•.•• $1 , 500.00
Order No. 2322073 4/5/84 § 77 . 1001 •••.•• • ~ ••• • 3 , 050 . 00
Total Penalties Assessed in This Proceeding . •• $4 , 550.00

~- tJ _n
10~

n

f}~

~. QtJ~

Richard c ."' Steffe..
Administrative Law Judge

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, u. s. Department of Labor, 230 South Dearborn Street, Eighth Floor, Chicago,
IL 60604 (Certified Mail)
Michael o. McKown, Esq., Peabody Coal Company, P.
St. Louis, MO 63166 (Certified Mail)

yh

588

o. Box 373,

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

. .

~

.:

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

CIVIL PENALTY PROCEEDING
Docket No . LAKE 84-72
A.C . No . 33 - 02312-03506

v.
Rice No . 3 Strip
R & F COAL COMPANY,
Respondent
DECISION
Appearances :

F . Benjamin Riek III , Esq. ; Office o f the
Sol icitor , U.S . Department of Labor v
Cleveland, Ohio, for Petitioner;
Peter J. Zinaich, Esq. , Pettay, Mosser &
Tabacchi , Cadiz , Ohio, for Respondent.

Before :

Judge Kennedy

The captioned matter came on for an evidentiary hearing
in Cleveland, Ohio on Thursday, April lS, 1985. After both
parties rested, the solicitor sought a voluntary nonsuit by
moving to withdraw the penalty petition and vacate the
challenged citations. The operator demurred unless the
solicitor would consent to entry of the trial judge's
tentative bench decision as an advisory decision.
The
solicitor readily consented .
Whereupon the trial judge granted the motion to \vithdraw
and vacate.
Thereafter the trial judge delivered for the
record his advisory decision finding the violations charged
did not, in fact, occur and strongly recommending that for
the future the Secretary take action to correct the due
process deficiencies noted in MSHA's enforcement of 30 C . F . R .
77.1606 (c).
The premises ~onsidered, it is ORDERED that the penalty
petition be DISMISSED and that the matters entered of record

589

at the hearing of April 18, 1985, be, and hereby are,
CONFIRMED and ADOPTED as the trial judge~s final disposition
of this matter.

Distribution ~

F. Benjamin Riek III, Esq. , Office of the Solicitor, u.s.
Department of Labor, 881 Federal Office Bldg. v 1240 East
Ninth Street, Cleveland r OH 44199
(Certified Mail)
Peter J . Zinaich? Esq ., Pettay, Mosser & Tabacchi # Lawyers
Building, Cadiz , OH 43907
(Certified Mail)

/ejp

FEDERAl MINE SAFETY AND HEALTH REVIEW COMMISStON
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COlFAX AVENUE, SUITE 400
DENVER, COLORADO

80204

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 84-87-N

A.C. No . 05-03007 - 05509

Petitioner

v.

Ralston Quarry
:

ASPHALT PAVING COHP.f\.NY,

.

Respondent

DECISION
Appear ances ~

Margaret A. Miller, Esq. , Of fi ce of the So lic~tor ..
U.S. DepartmenJc of Labor r Denver 7 Color ad:::; ;·
for Petitioner;
Shane Rogers , Safety Director l Aspha lt Paving
Company, Golden ; Colorado ,
:for Responden·t .

Before:

Judge Carlson

This case, heard under the provisions of the Federal Mine
Safety and Health Act of 1977 (the Act), arose out of the investi·-·
gation of a conveyor accident which occurred at respondent 's
rock quarrying and crushing operation on November 10 , 1983.
Respondent, Asphalt Paving Company (Asphalt), concede s the two
violations cited by the investigating inspectors, but contests
the appropriateness of the penalties proposed by the Secretary
of Labor {the Secretary) . For Citation No. 2099795, the
Secretary proposes a civil penalty of $1,500 . 00. For Citation
No. 2099796 he proposes $500.00 . At the evidentiary hearing
held in Denver, Colorado on March 20, 1985, the Secretary was
represented by counsel; Asphalt was represented by its safety
officer. Both parties waived the filing of post-hearing briefs.

REVIEW OF THE FACTS
The facts giving rise to the two citations in this case
are essentially undisputed. Respondent conducts a stone
quarrying and crushing operation in connection with its paving
business. At the time of the accident which produced the
citations, it employed approximate l y 200 persons. Of these ,
8 to 12 were employed in the quarrying and crushing operation
which was subject to the regulatory provisions of the Act.

591

The morning of November 10, 1983 was cold and wet. Snow
had fallen the night before. Under such conditions, the head
roller on the large belt conveyor at the crusher site tends to
become clogged, necessitating cleaning. The conveyor is electrically powered; the controls (on-off switches) are located in a
small building some 80 feet from the conveyor.
One mine employee, the crusher operator, had been working
with another employeeJ a laborer, cleaning frozen mud from
the conveyor rollers. The latter worker became cold and walked
to the conveyor-control building to warm up. While he was
thereu the crusher operator came to the building , switched on
the power , returned to the conveyor , crawled inside its frame ,
and proceeded to knock mud from the return roller with a
claw hammer c The man was caught up between the moving belt
and roller. He suffered severe, non-fatal injuries before he
could be freed.
The laborer, who claimed to have specifically warned the
v ictim against working on the machine with the power o n r had
quickly turned off the power when he saw that his co-worker
was in difficulty.
Asphalt had a general policy that electrical power was
to be locked out during maintenance and repair procedures.
The company did not enforce that policy, however, for cleaning
mud from the return pulleys . Instead , Asphalt expected its
employees to work as a team with one at the controls in the
control building, and the other at the roller. Upon a signal
from the person at the roller, the employee at the control
would "bump" the belt forward a short distance, thus exposing
a fresh segment of the roller. The team would repeat this
procedure several times to clean the entire surface of the
roller (Tr. 58-60, 64-65).
In addition, the employee at the
roller was expected to keep his distance from the roller by
using a shovel to scrape off the accumulated mud (Tr. 65).
Upon the completion of their investigation, the federal
inspectors issued two citations. In the first, Citation No .
2099795, they charged Asphalt with a violation of 30 C.F.R.
§ 56.14-33, which provides:
Pulleys of conveyors shall not
be cleaned manually while the
conveyor is in motion.
The Secretary proposes a penalty of $1,500.00 for this violation.

592

The second citation, No. 2099796, charges a violation of
30 C.F . R. § 56.12-16 , which provides:
Electrically powered equipment shall
be deenergized before mechanical work
is done on such equipment .
Power
switches shall be locked out or othe~
measures taken which shall prevent the
equipment from being energized without
the knowledge of the individuals working
on it. Suitable warning notices shall
be posted at the power switch and signed
by the individuals who are to do the
work .
Such locks or preventive devices
shall be removed only by the persons
who installed them or by authorized
personnel.
The Secretary asks for a $500.00 penalty for this violation .
DISCUSSION
Since Asphalt admits the violations charged, the onl y issue
to be decided here is what penalties are appropriate under the
Act. Asphalt complains that the proposed penalties of $1,500 . 00
and $500.00 are excessive. For the reasons which follow, I must
agree.
Section llO(i ) of the Act requires the Commission, in penalty
assessmentsf to cor.sider the operator 's sizep its negligence, its
good faith in seeking rapid compliance, its history of prior
violations, the effect of a monetary penalty on its ability to
remain in business, and the gravity of the violation itself.
The evidence discloses that the overall size of Asphalt's
business was moderate, whereas the mining portion of the business
was quite small.
Records introduced by the Secretary show that
in the two years immediately prior to the violations in this case,
the company had 36 paid violations. The penalties were mostly
small , totaling $1,111.00. For an operator of Asphalt's size,
this history of prior violations is moderate. The evidence
indicates that Asphalt's ability to continue in business would
not be adversely affected by payment of the penalties proposed by
the Secretary. The evidence also indicates that Asphalt abated
both violations swiftly. The violations were of a high order of
gravity.
The severe injuries received by the crusher operator
are ample proof of that.
~·le now consider the most important penalty criteria under
the facts of this case: negligence. Asphalt maintains that the

593

violations would not have occurred had the acc i dent victim
observed the well - known company policies concerning cl e aning of
the conveyor rollers . Plai n ly , this plea enjoys some validity.
Such evidence as there is shows that the c r usher operator , for
reasons we shall never know g decided to start the conveyor himself
and to clean it himself. Worsev he climbed s e veral feet into
the framework of the machi ne ·to work on t he roller at c l ose range .
I am inclined to give credence to t he e v idence wh i ch shows that
Asphalt had instructed its work ers to use a two-man te·am to clean
the rollers - one starting and s topp ing the belt o n sig na l , t he
other knock ing the mud off with a s hovel. 1/
Had t he v i cti m f ol l o we d those prec ept s t h ere presumably
would have been no v io l ations of 30 C . F.R . § 56.14·- :33 . The c o nveyor would no t have b een " i n moti on n whi l e t .he c l eani ng too k
p lace,. 2/
The q ues t i on a bou t 8 locko uts" unde r 30 C. F . R. § 56 . 12 - 16 is
more complex. Arguabl y, the two-man p roc e du r e u s ed by Asphal t is
a measure , othe r than l ockout 9 "whic h shall p revent the e qui pme nt
from bei n g e nergized wi t ho ut the kno wled ge of t he i nd i v id uals
working o n i t .R I decline to dec ide that qu e s t ion because it is
not t r u ly in issue ., It was no'c briefed r and ~ .indeed , ':,'las neve r
direct ly r a i sed o r discu ssed a t t he hea ri ng . 3/ What is cl e ar
is this: when t h e crusher opera t or p r oceede d-t o e n e r g ize the
conveyor with the intent of working on it himself, he violated
that part of the standard 'l.oJhich requires that "/-e 7lectrically
powered equipment shall be deenergized be fore mechanical work is
done . • •. "

1/ As to whether cleaning with a shovel is a "manual" cleaning
under the standard need not be decided in this caseo Cle aning
with a short claw hammer clearly is "manual " s ince common sense
dictates that it is not appreciably safer than use of the hands
alone.
2/ One of the federal inspectors testified that the laborer who
had been working with the accident victim earlier in the morning
admitted that it was ncornmon practice " to cle an t he conv eyor be l t
while it was in motion . The matter was apparently pursued no
further.
The declarant may well have been ref e rring, in an
unsophisticated way, to the two-man "bumping" procedure for
cleaning. It is clear that the declarant himself understood
that it was wrong to try to clean a roller in the way the crushe r
operator was doing at the time of his accident . I accord the
admission little weight.
3/ At one point counsel for the Secretary did assert , in response
to a question from the judge, that she was not able to say if the
government had a position on whether or not the two-man procedure
was violative of 30 C. F.R . § 56.12-16 (Tr. 62).

·594

If a miner deliberately disregards a company safety policy ,
does i t follow that the mine operator is free of negligence for
penalty purposes? I hold that it does not. Even if the offending
miner is shown to have known of the policy, there must be more.
There mu st also be evidence that the policy was vigorously enforced .
Put ano t her way, the miner must know that he will be subject to
some sanction, some form of meaningful discipline , if he v i olates
safety practices. Without such an expectation, company safety
rules may merely be seen by workers as non - compulsory company
preferences.
In the present case I am convinced that the accident victim
had to know that he was ignoring safety rules . Lacking evidence
that he could reasonably expect the imposition of substantive
disciplinary measures by management r however p I must find that
some degree of fault still resides v1i·th Asphalt .
Having carefully considered a ll the evidence bearing upon
the statutory criteria for penalty assessments , with particular
emphasis on the negligence factor 0 I conclude that the appropriate
assessments are as follows:
For Citation No .
For Citation No .

2099795 ~
2099796 ~

$80 0 . 00
200 .00

CONCLUSIONS OF LAW
Consistent with the findings contained in t he narrative
portion of this decision, the following conclusions of law are
made:

(1)

The Commission has jurisdiction to decide this case .

(2)

Asphalt , the respondent, admits violation of
30 C . P . R. § 56.14 - 33 as charged in Citation
No. 2099795 and violation of 30 C.P.R. § 56 . 12 - 16
as charged in Citation No. 2099796.

(3)

A civil penalty of $800.00 is appropriate for the
violation of 30 C.F . R. § 56.14-33.

(4)

A c ivil penalty of $200.00 is appropriate for
the violation of 30 C.F.R. § 56.12-16 .
ORDER

Accordingly , it is ORDERED that Aspha l t pay a total civ il
pena lty of $1, 000 . 00 within 30 days of the date of this d ecision .

John A. Carlson
Administrative Law J u dge

·595

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
Colorado 80294 (Certified Mail)
Mr. Shane Rogers, Safety Officer, Asphalt Paving Company ,
14802 West 44th Avenue, Golden, Colorado 80403 (Certified Mail )

jot

596

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

APR G4 l9B5

CONTEST PROCEEDING

CONSOLIDATION COAL COMPANY,
Contestant

Docket No. WEVA 81- 620-R
Order No . 853383/8/25/81

v.

Ireland Mine

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

Robert M. Vukas, Esq., Consolidation Coal
Company~ Pittsburgh, Penrislyvania, for
C_op te stan t:
David T. Bush , Esq ., Office of the Solicitor v
u. S. Department of ~abor , Philadelphia p
Pennsylvania, Pennsylvania, for Respondent .

Before:

Judge Fauver

This proceeding was brought by Consolidation Coal Company
undei section 105(d) of the 1977 Federal Mine Safety and Health
Act, 30 U.S.C. § 801, et ~' to review an imminent danger
withdrawal order issued by Federal mine inspectors.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable
and probative evidence establishes the following:
FINDINGS OF FACT
1. On August 25, 1981 , Federal mine inspectors Lyle Tipton
and Donald Moffett conducted a regular inspection at Consolidation
Coal Company 's Ireland Mine.
2.

During this inspection the inspectors were accompanied by
representative Robert Clark and United Mine Workers'
safety representative Harold Lewis.
3. The purpose of such inspection was to inspect the
haulage in the area from the portal to the rotary dump.

5·97

4. During the inspection the inspectors and others
reached an S curve in the track where they stopped to wait
for an approaching train to pass.
6. The train , a locomotive pulling coal cars, passed
through the S curve and over the track switch at a high rate
of speed.
Its rate of speed was not necessary to negotiate
the curve or ascend the grade following the curve , but was
an excessive and dangerous rate of speed.
7. Based upon their observation of the speed of the
locomotive, the inspectors issued an imminent danger order
(No . 853383), which alleged the following condition :
The No. 46 50 ton haulage locomotive
operated by Leonard Parsons and pulling
37 (20·ton) loaded mine cars followed by
No. 96 50 ton locomotive operated by
Gary White was observed operating at an
unsafe speed unreasonable for track and
mine conditions around an 'S' turn and
through a track switch. This order will
not be terminated until Norbert Becker,
principal officer of Health and Safety
for this mine, instructs these· motormen
to pull their trip through this area at
a reasonable safe speed.
DISCUSSION WITH FURTHER FINDINGS
The inspection party was stopped short of the s curve b y
a motorman, because a locomotive pulling coal cars was approaching
the curve. Upon observing the speed of the train, Inspector Tipton
told the . Company representative, Clark, that he believed the
train was moving too fast and should be slowed down. Clark used
a phone to order the locomotive operator to slow down the train.
The train, however, did net slow down and at that point Inspector
Tipton talked with Inspector Moffett and both agreed tnat an
imminent danger existed.
Inspector Tipton then instructed
Clark to stop the train under a section l07(a) order .
The Union representative, Lewis, also an eye-witne ss, agreed
that the train was traveling too fast and that an imminent danger
existed. To illustrate how fast the train was moving, Lewis
testified that, although he could normally .count the coal cars
in a moving train, this train was moving so fast that he could
not count the cars. He had never seen a mine train traveling
that fast in his experience.

508

The S curve included a switch in the tracks.
The switch ,
over which the train must pass , increased the danger of
traveling at a high rate of speed at this location.
The term imminent danger is defined by section 3 of the
Act as:
the existence of any condition or practice in
a coal or other mine which could reasonably be
expected to cause death or serious physical
harm before such condition or practice can be
abated.
In Freeman Coal Mining Company v. Interior Board of Mine
Operations Appeals, 804 ~2d 741 (7th Cir. 1974), the court
affirmed the following test of whether an imminent danger exists:
Would a reasonable man r given a qualified
inspector's education and experience, conclude
that the facts indicate an impending accident.
or disaster, threatening to kill or to cause
serious physical harm likely to occur at any
moment but not necessarily immediately?
I find that the preponderance of the reliable and probative
evidence establishes that Inspectors Tipton and Moffett exercised
reasonable judgment in concluding that an imminent danger existed.
CONCLUSIONS OF LAW
1.

The Commission has jurisdiction ~n this proceeding.

2. Order No . 853383, issued by Inspectors Tipton and Moffett
on August 25, 1981, was reasonably and justifiably issued based
on the facts.
The Secretary met his burden of proving the
allegations of the order by a preponderance of the substantial,
reliable, and probative evidence.
ORDER
WHEREFORE IT IS ORDERED that Order No. 853383, dated
August 25 , 1981, is AFFIRMED and this proceeding is DISMISSED.

IJ~~ ~auv~

William Fauver
Administrative Law Judge

Distribution:

599

Robert M. Vukas, Esq . , Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, Pennsylvania 15241 (Certified
Mail)
David T. Bush, Esq., Office of the Solicitor, U.So Department
of Labor, 3535 Market Street, Philadelphia , Pennsylvania 1910 4
(Certified Mail)
Michael H. Holland, Esq., UMWA , 900 Fifteenth Street , NoW. ,
Washington v D.C . 20005 (Certified Mail)

/kg

·600

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

APR 2 <'l 1985

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 83 - 211
A. C. No. 46- 01456-03541

v.

Federal No . 2 Mine

EASTERN ASSOCIATED COAL CORP. ,:
Respondent
DECISION
:Appearances:

Kevin C. McCormick, Esq., Office of the
Solicitor, U. S. Department of Labor ,
Pittsburgh g Pennsylvania u for Petitioner :
R. Henry Moore , Esq .p Rose , Schmidt , Dixon
& Hasley , Pittsburgh , Pennsylvania , for
Respondent .

Before:

Judge Fauver

This civil penalty case involves an order, No . 2115661,
issued by a Federal mine inspector under section 104(d) (2)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seq .
The order alleges a violation of 30 C.P.R.
§ 75.400 at Eastern's Federal No. 2 Mine , as follows:
Damp to wet coal fines were being stockpiled
in the *4 crosscut of the 10 Right Section .
Longwall #1 belt . The stockpile of fines was
about 18 feet long, 15 feet wide, and about 6
inches deep . This belt is examined each
production shift by a certified foreman and
this condition was ea~ily _ visible to any
miner passing this area.
Having considered the hearing evidence and the record as
a whole, I find that a preponderance of the reliable, probative,
and substantial evidence establishes the following :

601

FINDINGS OF FACT
Respondent ' s Federal No . 2 Mine is an underground
1.
coal mine that produces coal for sale or use in or affecting
interstate commerce.
2. On February 18, 1983v Federal Mine Inspector Terry
Palmer inspected the subject mine and observed an accumulation
of coal fines stockpiled in No . 4 crosscut in 10 Right
section. The accumulation covered the floor of the crosscut ,
and was black, about 18 x 15 feet 9 and up to 6 inches deep.
It . was wet in the middle and damp to dry toward the edges.
About three feet of the edge area had a thin dry crust and
when the inspector tamped this area ·the material did n ot.
exude moisture. This part of the accumulation was about
three or four feet from the belt rollers.
3.
The accumulation was intentionally stored there
about 16 days before the inspection , when the belt line had
been extended about 200 feet.
4.
The belt entry was about 15 feet wide. A 110-volt
control wire ran up the heading and the belt was transporting
coal at the time of the inspection.
5 . Samples of the accumulation "in place" were not
taken to test combustibility , but some samples were taken of
material after it was put on the belt conveyor during the
abatement of the cited condition. The material placed on
the belt was a mixture of the wet and dry parts of the
accumulation . The samples of the mixed material showed 21%
moisture, 43% ash , and the rest presumably coal •
. DISCUSSION WITH FURTHER FINDINGS
Pursuant to the safety standard (30 CFR § 75.400), coal
dust, including float coal dust ~ep9sited on rock - dusted
surfaces, loose coal, and other combustible materials shall
be cleaned up and not permitted to accumulate in any active
workings of a mine. This standard, which is a statutory
mandate (§ 304(a) of the Act), was originally included in
the 1969 Coal Act as a method of eliminating fuel sources
for explosions or fires in t he mines .
By prohibiting accumulations
of these substances, Congress attempted to achieve one of
the prime purposes of the Act, that is, the prevention of
loss of life and serious injury arising from explosions and
fires in the mines (see Old Ben Coal Corp . , 1 FMSHRC 1954
(19 7 9)).

6 02

Consistent with this broad policy to protect the health
and safety of miners, the Commission has further defined the
contours of this standard. For example, in Old Ben Coal
Corporation, 2 FMSHRC 2806 (1980}, the Commission ruled that
an accumulation under 30 C.F .R. § 75.400 exists "where the
quantity of combustible materials is such that , in the
judgment of the authorized representative of the Secretary ~
it likely could cause or propagate fire or explosion if an
ignition source were present." The Conunission also noted
that the actual or probable presence of an ignition source
is not an element of the violation . So long as an accumulation
of combustible materials exists : there is a violation of
both section 304(a) and 30 C.F.R. § 75 . 400 . Old Ben Coal
Corporation, 1 FMSHRC 1954 (1979).
Under these principles , it is clear that a viol ation of
30 C . F.R. § 75 . 400 occurred in this case ~
The standard by its terms applies to t: coal dust ., .
loose coal and other combustible materials ~ (30 C.F . R. §
75.400, emphasis added) .
Inspector. Palmer visually identified
the coal fines as small particles of coal, too large to be
considered coal dust, yet too small to be classified as
loose coal. It was, nevertheless, an accumulation of coal.
Therefore, under the standard, Respondent was not permitted
to store or allow the coal fines to accumulate in an active
\·rorking of the mine.
1

The fact that the center of the accumulation was wet
does not preclude a finding of a violation under this
·s tandard, because water ·does not inert coal.
In the
event of ·~ -mine fire, the heat from the flames could dry out
the wet portions of the coal, and thus provide additional
fuel for the fire. Water on the coal would only slow down
·the burning process; it would not make the coal incombustible .
Furthermore, only a part of the accumulation was wet. The
outer edges of the fines had begun to dry out. According to
Palmer, the edges of the accumulation were dry enough to
intensify an existing mine fire and could possibly cause a
fire if an ignition source were close by.
In a somewhat
similar case, Judge James Broderick found a violation of 30
C.F.R. § 75.400 even where the accumulations were so wet that
they could not be shoveled, United States Steel Mining, Inc.,
5 FMSHRC 1873 (1983).
In that case, rock dust had to be---applied to soak up the water before the accumulation could be
removed. Despite that fact, Judge Broderick found that there
was an accumulation of combustible material in violation of
30 C.P.R . § 75.400.
In the instant case, there was no such
difficulty removing the coal fines, and only a portion had
to be bucketed out.

·603

The fact that Eastern's sample of the accumulation
showed approximately a 64% incombus tible content is no
defense to the charge. First, the combustible content of
the accumulation is not relevant to 30 C.F.R. § 15.400.
That section concerns the accumulation of coal dust , loose
coal and other combustible materials in the active workings
of a mine.
It does not address the combustible cont:ent of
any particular materials. Section 75.403 does address this
issue as it relates to permissible amounts of rock dusting
in particular areas of the mine. But this case involves an
accumulation of coal fines left in a crosscut for over two
weeks 9 not an issue whether the roofp ribs and floor were
sufficiently rock-dusted to meet permissible limits .
Second, the sample taken is not representative of the
accumulation , because it was not taken until the fines,
both wet and dry , had been placed on the belt line and mixed ,
thereby changing its previous separate con~{stency .
I find that this is a serious violation. With an
energized belt line running in close proximity to the coal
fines, the arcing or sparking from a severed power cable or
a stuck roller on the belt line could be a sufficient
ignition source to cause an explosion or fire in the area~
The accumulation of coal fines could intensify a fire or
explosion and could possibly cause a fire if there was an
ignition source close by. As mentioned, the fact that some
of the coal fines were wet did not make the accumulation
:incombustible because water does not render coal inert, and
because the outer edges of the accumulation were only damp
or dry.
Respondent was negligent in storing and leaving the
accumulation in the mine, because by the exercise of
reasonable care it could have pr~ven~ed the violation.
Respondent contends that the material was stored in No. 4
crosscut because, when it was first discovered (February 3,
1983) the belt had already been dismantled, and "material
could not be placed immediately in the belt and taken out
of the mine" (Respondent's Brief, p.4). However, when the
belt was assembled and running again by February 8, the
accumulation could have been removed from the mine but was
not removed.
Respondent contends that the material was
left there because it was so wet that it presented no hazard,
and the belt foreman was keeping an eye on it so that when
it dried out it would be promptly removed.
This vague
procedure of "keeping an eye on" an accumulation of coal
fines is not permitted by the safety standard. The standard
proscribes the accumulation of combustible material in the

·604

active workings of a mine. Wet coal is combustible, because
a fire can dry out the moisture and then iguite the coal .
Moreover, a substantial part of this accumulation was only
damp or dry and was thus more readily combustible than the
wet part.
The parties have stipulated as to the r est o f the s i x
statutory criteria for assessing a civi l p ena lty~ that i"·
the size of the operator (large) and the mine (large) :
whether a penalty will adversely affect Eastern 's abi l i ty
to remain in business (no}; whether the condition cited
was timely abated in good faith (yes) ~ and Eastern ~s
history of previous violations (903 paid violations
amounting to $106 , 409 } .
I conclude that special findings in a section 10 4 (d) ( 2)
order ("significant and substantial" or "unwarrantable " ) are
not reviewable in a civil penalty proceeding .
Howeve r ?
based on the findings as to negligenc e and gravi t y, above .
I would affirm the inspector P s findings that t h e v i o la·t i o n
was "significant and substantial 11 and "unwarrantable " if X
were reviewing those allegations of the order .
CONCLUSIONS OF LAW
1.

The Commission has jurisdication in this proceeding .

2. On February 18, 1983, Respondent violated 30 C.F.R.
§ 75.400 as alleged i n the "Condition or Practive" part of
MSHA's section 104(d} (2) Order No. 2115661 .
3. Considering the criteria for assessing a civil
penalty under section llO(i) of the Act, Respondent is
ASSESSED a civil penalty of $305 for the above violation .
ORDE~

.

WHEREFORE IT IS ORDERED that Respondent shall pay a
civil penalty of $305 within 30 days of this Decision.

G)Jt~ :r#..UV~

William Fauver
Administrative Law Judge

Distribution:

605

Kevin C. McCormick, Esq., U.S. Department of Labor, Office
of the Solicitor, 4015 Wilson Boulevard, Arlington, Virginia
22203 (Certified Mail)
R. Henry Moore, Esq., Rose, Schmidt, Dixon & Hasley, 900
Oliver Building, Pittsburgh, Pennsylvania 15222 (Certified
.i:l\ail;

606