AUGUST 1984
Commission Decisions
8-23-84
8-24-84

PENN 83-39
WEST 81-323-DM

Pg. 1834
Pg. 1842

WEST 79-165-M
PENN 83-63
WEST 81-186-M
VA
81-40-R
LAKE 82-35-M

Pg. 1854
Pg. 1866
Pg. 1871
Pg. 1886
Pg. 1908

8-01-84 .· Eureka Mining Corporation
LAKE 84-68
8-03-84 UMWA/Jerry Moore v. Peabody Coal Co.
KENT 82-105-D
and MSHA/Thomas Williams v. Peabody
LAKE 83-69-D
8-03-84 Phelps Dodge Corporation
WEST 83-107-M
8-06-84 Medusa Cement Company
LAKE 83-74-M
8-06-84 MSHA v. Thomas E. Jones
WEST 81-326-M
8-06-84 Elk Creek Gold Mines Co.
WEST 84-21-M
8-07-84 Ross Island Sand & Gravel Co.
WEST 83-111-M
8-10-84 MSHA v. James L. Merchen
CENT 81-58-M
8-15-84 MSHA/John Cooley v. Ottawa Silica Co. LAKE 81-163-DM
8-15-84 Jerry Blackburn v. U.S. Steel Mining
WEVA 83-242-D
8-20-84 Atlas Minerals
WEST 84-33-M
8-20-84 Westmoreland Coal Company
WEVA 84-10
8~21-84
West Virginia Rebel Coal Co., Inc.
KENT 83-209
8-21-84 Kennecott Minerals Company
WEST 81-342-M
8-21-84 Kennecott Minerals Company
WEST 82-155-M
8-21-84 Kennecott Minerals Company
WEST 83-5-M
8-23-84 Consolidation Coal Company
WEVA 84-2-R
8-24-84 Energy Coal Income Partnership
KENT 83-30-R
8-24-84 Gary Goff v. Youghiogheny & Ohio Coal LAKE 84-86-D
8-29-84 U.S. Steel Mining Co., Inc.
PENN 83-70
8-29-84 Richard Bjes v. Consolidation Coal Co. PENN 82-26-D

Pg. 1919
Pg. 1920
Pg. 1920
Pg. 1930
Pg. 1939
Pg. 1952
Pg. 1959
Pg. 1968
Pg. 1972
Pg. 1979
Pg. 1990
Pg. 1991
Pg. 1993
Pg. 2015
Pg. 2017
Pg. 2023
Pg. 2033
Pg. 2038
Pg. 2050
Pg. 2055
Pg. 2058
Pg. 2084

8-28-84
8-28-84
8-29-84
8-29-84
8-30-84

U.S. Steel Mining Co., Inc.
MSHA/Chester Jenkins v. HeclaDay Mines Corporation
Allied Chemical Corporation
U.S. Steel Mining Co., Inc.
Cathedral Bluffs Shale Oil Co.
Old Dominion Power Company
United States Steel Corporation

Administrative Law Judge Decisions

AUGUST 1984
The following cases were directed for review during the month of August':
Secretary of Labor, MSHA v. U.S. Steel Mining Company, Inc., Docket No.
PENN 83-129. (Judge Koutras, July 11, 1984)
Robert Roland v. Secretary of Labor, MSHA, Docket No. WEST 84-46-DM(A).
(Judge Melick, Interlocutory Review of July 3, 1984 order)
United Mine Workers of America on behalf of James Rowe, et al. v. Peabody
Coal Company, Docket Nos. KENT 82-103-D, etc., and Secretary of Labor on
behalf of Thomas Williams v. Peabody Coal Company, Docket No. LAKE 83-69-D.
(Judge Merlin, July 11, 1984 and August 3, 1984)
Secretary of Labor on behalf of Paul Sedgmer and others v. Consolidation
Coal Company, Docket No. LAKE 82-105-D. (Judge Moore, July 16, 1984)
Secretary of Labor, MSHA v. Pyro Mining Company, Docket No. KENT 84-151.
(Judge Steffey, July 26, 1984)
United Mine Workers of America, Local 2274 v. Clinchfield Coal Company,
Docket No. VA 83-55-C. (Judge Moore, July 23, 1984)
No cases were filed in which review was denied during the month of August.

COMMISSION DECISIONS

·.'.··

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

August 23, 1984
SECRETARY OF LABOR,
MINE SAFETY AND. HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 83-39

v.
U.S. STEEL MINING COMPANY, INC.
DECISION
The issue presented here is whether a Commission administrative law
judge correctly held that two violations of mandatory safety standards
were "significant and substantial" within the meaning of 30 u.s.c.
§ 814(d)(l), section 104(d)(l) of the Federal Mine Safety and Health Act
of 1977, 30 U.s .c. § 801 ~ ~· (1982) ("Mine Act"). We affirm.
The facts of the case are as follows. In August 1982, Inspector Robert
Newhouse of the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued to U.s. Steel Mining Company ("USSM") nine citations under
section 104(a) of the Mine Act. 30 u.s.c. § 814(a). The citations were
issued· at USSM's Cumberland Mine located in Greene County, Pennsylvania.
In addition to alleging a violation of a mandatory safety standard, each
of the nine citations also alleged that the cited violation was significant
and substantial ("S&S").
Thereafter, the Secretary of Labor filed with this independent Commission
a proposal for assessment of civil penalties for the nine alleged violations.
A hearing was held during which the S&S designations in two of the citations
were deleted and a third citation was vacated by the Commission administrative law judge at the Secretary's request. USSM admitted the eight remaining
violations, but contested the inspector's significant and substantial findings
as to six of them, and the penalty amounts proposed by the Secretary. The
judge then held that the six violations were significant and substantial and
he assessed penalties. 5 FMSHRC 1728 (October 1983)(ALJ).
We subsequently granted USSM's petition for review of the judge's
decision, but only for two of the violations found to be significant and
substantial. One of the violations before us on review (citation 2012065)
was established because unmarked trailing cable plugs were found to be
connecting underground mine machinery to a power center. The other violation (citation 2012074) resulted from an oxygen cylinder and an acetylene

1834·

cylinder that were left unsecured, leaning against a rib in a shuttle car
roadway. The.. primary issue as to each violation is whether substantial
evidence supports the judge's significant and substantial findings. Preliminary to our addressing the merits of the case, we briefly set forth
the interpretation that we have accorded the statutory term, significant
and substantial.
Section 104(d){l) of the Mine Act provides:
If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that
there has been a violation of any mandatory health or
safety standard, and if he also finds that, while the
conditions created by such violation do not cause
imminent danger, such violation is of such nature as
could significantly and substantially contribute t"()"""
the cause and effect of a coal or other mine safety
or health hazard, and if he finds such violation to
be caused by an unwarrantable failure of such operator
to comply with such mandatory health or safety standards,
he shall include such finding in any citation given to
the operator under this Act ••••
30 U.S.C.
30 U.S.C.

§
§

814(d)(l) (emphasis added). Section 104{e) of the Act,
814(e), contains similar significant and substantial language.

The Commission first interpreted this statutory language in Cement
Division, National Gypsum Co., 3 FMSHRC 822 (April 1981). There we held:
••• [A] violation is of such a nature as could significantly
and substantially contribute to the cause and effect of a
mine safety or health hazard if, based on the particular
facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to will result in
an injury or illness of a reasonably serious nature.
3 FMSHRC at 825 (emphasis added). In Mathies Coal Company, 6 FMSHRC 1
(January 1984), we reaffirmed the analytical approach set forth in
National Gypsum, and stated:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under National
Gypsum, the Secretary of Labor must prove: (1) the underlying
violation of a mandatory safety standard; (2) a discrete
safety hazard -- that is, a measure of danger to safety -contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature.
6 FMSHRC at 3-4 (footnote omitted).
189, 193 (February 1984).

Accord Consolidation Coal Company, 6 FMSHRC

1835

As to the four elements set forth in Mathies, we note that the reference
to ''hazard" in the second element is simply a recognition .that the violation
must be more than a mere technical violation -- i.e., that the violation present a measure of danger. See National Gypsum, supra, 3 FMSHRC at 827. We
also note that our reference to hazard in the tpird element in Mathies contemplates the possibility of a subsequent event. This requires that the
Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury. The fourth element
in Mathies requires that the potential injury be of a reasonably serious
nature. Finally, in U.S. Steel Mining Co., Inc., PENN 82-336 (July 11, 1984),
we.recently reemphasized our holding in National Gypsum that the contribution
of the violation to the cause and effect of a mine safety hazard is what must
be significant and substantial.

Citation No. 2012065
On August 4, 1982, MSHA Inspector Newhouse issued a citation to USSM
upon observing that the electrical plugs (also referred to as "disconnecting
devices") for the trailing cables on a continuous mining machine and a shuttle
car were not properly tagged, or otherwise identified, to correspond with the
receptacles at the mine section's power center. The citation alleged a violation of 30 C.F.R. § 75.601, which provides in relevant part:

Disconnecting devices used to disconnect power from
trailing cables shall be plainly marked and identified and such devices shall be equipped or designed
in such a manner that it can be determined by visual
observation that the power is disconnected.
At the time that the citation was issued, there were three pieces of mining
equipment in the mine section -- the cited continuous mining machine and
shuttle car, as well as a second shuttle car. The trailing cable plug to
the second shuttle car was properly identified.
In finding the violation to.be significant and substantial the judge
stated, "The hazard resulting from the violation is that someone could contact an energized cable thinking it was disconnected, or could inadvertently
plug in the wrong cable."
5 FMSHRC at 1731. The judge reasoned that
although the trailing cable plugs to the continuous mining machine and
the shuttle car were "very different in size and appearance and could not
be confused with one another," 1/ the unmarked shuttle car trailing cable
plug could be confused with the-trailing cable of the other shuttle car
that was on the section when the citation was issued. Id.
In addition,
the judge noted that although the power center into which the trailing
cables are plugged has a keying system that physically prevents a plug
from being inserted into the wrong receptacle, "the keys are often taken
off the cables, and it is not known whether the keys were present on the
day the citation was issued." 5 FMSHRC at 1731.
1/
The trailing cable plug to the shuttle car is square, while the trailing
cable plug to the continuous mining machine is round. Also, the plug to the
continuous mining machine is larger.

\
\

\

\

I

1836

On review, USSM does not argue that any injury occurring as a result of
a trailing cable accident would not be of a reasonably serious nature. It
argues only that the record does not support the judge's implicit holding that
there was a reasonable likelihood of such an electrical incident and resulting
injury occurring. National Gypsum, supra. We disagree.
The electrical hazard is presented because a miner could mistake the
unmarked shuttle car trailing cable plug for the plug of another shuttle
car or for a similar looking plug of a different piece of equipment and
insert that plug into the power center. Inspector Newhouse described the
hazard as the "[p}ossibility of somebody coming in contact with the energized
cables, either through repair of a cable or whatever reason; somebody
inadvertently plugging in the wrong cable." Tr. 57. The inspector described the scenario as follows:
[S]ay you have the shuttle car; say there is
electrical problems with it. An electrician comes in
and he is in a hurry and he gets in the cable. He just
unplugs it because he has to check something. You know,
somebody else may be fooling around with a fan cable, or
whatever; and somebody is told to go up and put the power
on. They see that cable and they plug it in. The man is
in a hot circuit.
Tr. 80. In fact, a fatal accident had occurred at the Cumberland Mine in
January 1979, involving trailing cables. At that time two crews of mechanics
were working on two shuttle cars that were down for repairs on the same mine
section. One of the mechanics was electrocuted when the crews mixed up the
two trailing cables and a miner, believing that he was plugging in the repaired
shuttle car cable, plugged in the cable to the other (unrepaired) shuttle car
instead. The miner electrocuted was working on the bare power wires of the
cable that was plugged into the power center. !:_/
As to the· likelihood of such an occurrence, the inspector stated, "It's
very probable it could occur with the number of cables and the number of
power conductors in that mine." Tr. 63 (emphasis added). 1/ Moreover, as

2/
USSM argued that the events resulting in the January 1979 fatal accident
could not reoccur because of the subsequent addition to the electrical system
of a device referred to as a "FEMCO" unit. Robert Bohack, a USSM safety
engineer, testified that the FEMCO unit is a tamper-proof device that prevents
the by-passing of the trailing cable's ground continuity system (apparently a
major cause of the January 1979 fatal accident). Although Inspector Newhouse
appeared to take issue with Bohack's testimony regarding the FEMCO unit, the
judge made no specific finding on .this point. Nevertheless, relying on the
testimony of Bohack, the judge stated, "If a break occurs in a power lead,
the power would be cut by the ground continuity check. However, it is
possible to have a bare wire not cut, without interrupting the continuity."
5 FMSHRC at 1731.
3/
Bohack, the USSM safety engineer, also testified that "there are
other plugs that are the same size as the shuttle car plug." Tr. 84.

1837

noted previously, there were two shuttle cars on the cited mine section at
the time that the citation was issued thus increasing the likelihood of a
trailing cable mix-up. Inspector Newhouse indicated that it would not be
unusual for two shuttle cars on the same mine section to be down for
repairs at the same time. He estimated that such an event could occur
about twice a month. The inspector also testified that a trailing cable
mix-up could occur in the event of an emergency, such as a cable fire.
In that case, the inspector stated, a miner would not have enough time
to determine to which piece of machinery the unmarked trailing cable plug
belonged.
USSM safety engineer Bohack testified that it was not reasonably likely
that the trailing cable plug violation would result in an accident and injury.
He stated, "I thought that someone would have to go out of their way to cause
an injury under the circumstances. They would really have to go out of their
way and I really don't see how that could have happened with the ground continuous checks on this system." Tr. 83. The operator argues that because
only one of the two shuttle car plugs was unmarked, "a simple process of
elimination" would enable a person to know the identity of the cables.
Br. at 3. We cannot agree with this argument or with the further contention
"If someone mixed up the plugs, they [sic] [would] obviously not [have been]
interested in taking elementary steps to identify what they were working with
and presumably would [.have] ignore[d] the tag had it been there." Br. at 4.
This argument ignores the reality, demonstrated by the accident in 1979, that
miners in a hurry may easily fail to verify which cable is which unless all
cables are "plainly marked." !!_/
In addition, Bohack did not effectively dispute the inspector's testimony
that the keying system used at the mine to prevent the trailing cable plugs
from being inserted into other than their assigned receptacle was relatively
unreliable. Inspector Newhouse questioned the reliability of that keying
system, noting that it was not uncommon for miners at the Cumberland Mine
to modify the system when a receptacle is needed. He described the possibility of such an occurrence as being "highly possible" and "probable."
Tr. 77. Although USSM safety engineer Bohack testified that it is "more
likely" that the key will be on the plug, he also testified that "it's
possible for the key to be taken off." Tr. 87 •. Neither the MSHA inspector nor the company safety engineer was able to recall whether the cited
trailing cable plugs were equipped with keys when the citation was issued.
In sum, we conclude that the record evidence provides substantial support
for the judge's finding that the trailing cable plug violation was significant
and substantial.
Citation No. 2012074
MSHA Inspector Newhouse issued this citation to USSM on ~ugust 9,
1982, upon observing an unsecured oxygen cylinder and an unsecured acetylene
cylinder leaning against a rib in an underground shuttle car roadway. The
inspector charged a violation of 30 C.F.R. § 75.1106-4(g), a mandatory
safety standard that provides:

!±/

Cf. Great Western Electric Company, 5 FMSHRC 840, 842 (May 1983)(relying
on skill and attentiveness of miners to prevent injury "ignores the inherent
vagaries of human behavior").

1838

Liquefied and non-liquefied compressed gas cylinders
shall be located no less than 10 feet from the worksite,
and where the height of the coal seam permits, they shall
be placed in an upright position and chained or otherwise
secured against falling. [Emphasis added.]
Each of the unsecured gas cylinders weighed approximately 120 pounds. The
gas cylinders had been used in repairing a continuous mining machine during
the previous, non-production, midnight shift and coal production on the day
shift had not yet begun when the citation was issued.
The issues before the Commission administrative law judge as to this
citation were whether the violation was S&S and the penalty to be assessed.
The judge upheld the S&S designation, noting that the mine section was preparing to begin a new shift and that the compressed gas cylinders could have
been knocked over by a shuttle car, or other force, and could have ruptured.
In the judge's view, "the valve could be broken or the cylinders ruptured,
releasing the compressed gas causing the cylinders to become as missiles."
5 FMSHRC at 1732.
The issue on review is whether the record supports the judge's implicit
holding that there was a reasonable likelihood that an accident, and resulting
injury, would occur involving the unsecured gas cyclinders. Again, USSM does
not contend that any injury occurring would not be of a reasonably serious
nature. 5/ Although our task is made more difficult by the brevity of the
judge's discussion of the record and the basis for his decision, we hold
that substantial evidence supports the judge's significant and substantial
finding.
The inspector testified that shuttle cars making a left-hand turn from
the roadway where the gas cylinders were located into the nearby No. 3 entry
were likely to strike and to damage the unsecured cylinders. The shuttle
cars were described as being approximately 8 to 10 feet in width and 15 to
18 feet in length. The inspector testified, "By making a left-hand turn and
swinging in that direction, the back end of the buggy would have been in
close proximity to these tanks." Tr. 165. The inspector added that the
operator of an "off standard" shuttle car might not see the.cylinders
because he would be on the other side of the car. In the inspector's
view, whether a shuttle car operator hit the cylinders "would really
depend on how conscientious your operator is, how much confusion is
involved," and that such an event occurring was a "probable possibility."
Tr. 174.

5/
To the extent that USSM's brief on review can be read as challenging
the judge's finding of a violation, the challenge is rejected. First, the
fact of a violation was conceded before the judge. 5 FMSHRC at 1728.
Second, no issue as to the merits of the violation was raised in USSM's
petition for review. See 30 U.S.C. § 823(d)(2)(A)(iii) (absent good cause
showing, issues may not be raised for the first time on review).

1839

According to the inspector, the gas cylinders posed two discrete hazards
should they be struck by a shuttle car: breaking the neck (i.e., the.valve)
of the oxygen cylinder (the neck of the acetylene cylinder
recessed and
did not pose this specific hazard); and puncturing the sides of either or
both cylinders. The inspector testified that should either the valve be
broken off the oxygen cylinder or the cylinders' sides be punctured, the
unsecured, compressed gas cylinders would be transformed into misi;,;iles
that could strike the miners working on the section or could strike the
section's power center and cause a fire.

was

The USSM section foreman who accompanied Inspector Newhouse testified
that when the shuttle cars made their left-hand turn from the roadway into
the No. 3 entry, there would be an approximate clearance between the shuttle
car and the gas cylinders of 3 to 5 feet. The operator also relies on the·
fact that shuttle cars were not running on the mine section at the time the
citation was issued and that the cylinders were in plastic bags awaiting
shipment off the section. However, the section foreman "could not definitely
say" when the cylinders were expected to be transported from the area.
Tr. 186. He admitted that, "They were preparing to operate on the day
shift." Tr. 169.
We cannot agree that the clearance of, at best, five feet between a
turning shuttle car and these unsecured cylinders is enough to disturb on
review the judge's conclusion that the violation was significant and substantial. Driving habits and mining conditions are too variable. In
addition, given the size of the shuttle cars that use the roadway, we are
not prepared to say that the record does not support the judge's conclusion
that the cylinders could have ruptured. Thus, we hold that substantial
evidence of record supports the judge's holding that an incident involving
the unsecured, compressed gas cylinders was reasonably likely to occur.
Accordingly we affirm the judge's significant and substantial findings
as they relate to citations 2012065 and 2012074. USSM additionally argued on
review that the sole appropriate penalty for a violation that is not significant and substantial is $20. See 30 C.F.R. § 100.4 ("Determination of
penalty; single penalty assessment.") Although it is unnecessary to reach
that issue here, we recently have rejected that same argument in U.S. Steel
Mining Co., Inc., 6 FMSHRC 1148 (May 1984).

1840

Commissioner,Lawson concurring:
;
\·

On the basis of the criteria set forth in my separate opinion in
Cement Division, National Gypsum Co., 3 FMSHRC 822 (April 1981), I
concur in finding the violations in this case to be significant and
substantial within the meaning of section 104(d)(l) of the Mine Act,
30 u.s.c. § 814(d)(l).

A. E. Lawson, Commissioner

Distribution
Louise Q. Symons., Es.q.
U. S • Stee! Mini.ng Company, Inc •
6.0.0. Grant Street, Room 1580
Pittsburgh, PA 15230
Barry F. Wisor, Esq.
Office.of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd. ·
Arli.ngton, Virginia 22203
Administrative Law Judge James A. Broderick
.
Federal Mine Safety & Health Review Commission
5203 Leesti~rg Pike, 10th Floor
Falls Church, Virginia 22041

1841

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

August 24, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 81-323-DM

on behalf of CHESTER "SAM"
JENKINS

v.
HECLA-DAY MINES CORPORATION
DECISION
This case involves a complaint of discrimination filed by the Secretary
of Labor with this independent Commission pursuant to the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 ~ _!S· (1982). The complaint alleged
that the operator violated section lOS(c)(l) of the Mine Act, 30 u.s.c.
§ 815(c)(l), .in connection with three incidents involving the complaining
miner, Chester "Sam" Jenkins: (1) the posting on the mine bulletin board
of a letter that Jenkins had written; (2) the failure to reassign Jenkins
to work on a particular stope; and (3) the suspension of Jenkins without pay.
A Commission administrative law judge dismissed the complaint in its entirety.
5 FMSHRC 489 (March 1983)(ALJ). We subsequently granted petitions for discretionary review filed by both Jenkins and the Secretary of Labor and
heard oral argument. We affirm the judge in part and reverse in part. We
conclude that the suspension of Jenkins without pay violated the Mine Act,
and remand so that the judge may make an appropriate back pay award.

I.
In the middle of 1979, Jenkins began working for Day Mines at its
Republic Unit Mine, a gold and silver mine located near Republic, Washington.
Day Mines op~rated the Republic Unit Mine during the relevant time period
although Hecla-Day Mines Corporation ("Hecla-Day") took over Day Mines
before the case came to trial. The Republic Unit Mine is a contract mine
worked by pairs of miners assigned to stopes, and Jenkins was a contract
miner. Stopes are excavations from which ore is mined in a series of cuts
called steps. After completion of a mining cycle that involves drilling,
blasting, and removal of muck, miners are transferred to another area while
the mined area is "back-filled" with sand. Thereafter, another mining cycle
may be initiated in the stope.
·

1842

Contract miners at the Republic Unit Mine are paid an hourly wage
plus a fee for each cubic foot of rock broken. The fees depend upon the
nature of the stopes. Smaller stopes are more difficult to mine and are
assigned a higher fee rate. Jenkins testified that despite the pay
difference, miners made more money working in larger stopes.. Ron Short,
the manager of the Republic Unit Mine and responsible for setting the
incentive rates in the stopes, testified that miners made more money in
the smaller stopes.
On December 11, 1980, Jenkins finished a mining cycle in stope 4114,
in which he had previously completed another mining cycle. On December 12,
1980, Jenkins and his partner, Don Vilardi, were assigned to work in stope
4222. Stope 4222 was a smaller stope than stope 4114 and therefore had a
higher fee rate per cubic foot of rock broken.

On December 24, 1980, a miner died in an accident at the Republic
Unit Mine. Concerned by the accident, on the following day Jenkins
prepared a four-page letter to Keith Droste, the general manager, and
W. M. Calhoun, the president of Day Mines. The letter described several
alleged safety problems at the mine, including misconduct on the part of
some miners. Jenkins did not immediately mail the letter. He later added
to the letter a postscript signed by four other miners who stated their
agreement with Jenkins. On December 29, 1980, the first working day
following the fatality, a safety meeting was called by management of the
mine. At that meeting Jenkins raised several of the same complaints
regarding safety that he had included in his letter. Jenkins later mailed
his letter, dated December 25, 1980, to Calhoun and Droste. Pet. Exh. 1.
Droste responded to each of Jenkins' complaints in a letter that was
received by Jenkins on January 14, 1981. Res. Exh. 2.
On December 30, 1980, Jenkins put a notice on the mine bulletin
board requesting nominations for a mine safety committee. This notice
upset William Hamilton, the mine superintendent. The letter was quickly
removed from the board. On January 2, 1981, Jenkins circulated a petition
among fellow miners concerning a cut-off of power to the main hoist on
December 24, 1980, the day of the fatal accident. The power had been
turned off for three hours, creating what Jenkins considered a safety
problem. Jenkins had mentioned this problem in his December 25 letter
and at the safety meeting on December 29, 1980. Forty-four miners
signed Jenkins' petition concerning the cut-off of power. On January 7,
1981, the petition was delivered to mine superintendent Hamilton.
On January 7, 1981, Ron Short, the mine manager, spoke with Jenkins
and his partner Vilardi in the mine office. Several times Short asked
whether Jenkins and Vilardi, who had also signed Jenkins' December 25
letter, had any objection to the posting of the letter on the mine
bulletin board. Neither Jenkins nor Vilardi objected, and Short posted
the letter. After the posting of the letter, a miner threatened Jenkins
with bodily harm. Another miner, David Hamilton, the son of the mine
superintendent, accused Jenkins, in the presence of others, of being an
agitator and troublemaker. The following day, a threat was made to
Jenkins' 7-year old son while he was at school.

1843

Following these threats Jenkins did not go to work on January 8, 1981,
but instead consulted an attorney. On her advice, he went to the local
sheriff's office to file a complaint. Jenkins' wife telephoned the mine
and informed mine personnel of the threats against her husband and son.
On January 9, 1981, Ron Short telephoned Jenkins and told him that if
he returned to work, Short would guarantee his safety while on company
property. Jenkins had made an appointment to speak with a mine inspector
from the Department of Labor's Mine Safety and Health Administration
("MSHA") in Spokane, Washington, to discuss the events at the mine and
the threats. The round trip to Spokane would take approximately six
hours, and Jenkins explained that he could not return in time for work.
Jenkins returned to work on January 10, 1981.
On January 11, 1981, a meeting involving a small number of miners was
held at the home of Cassel "Duke" Koepke, a miner at the Republic Unit Mine.
At the meeting Jenkins raised safety concerns regarding the mine. On
January 14, 1981, a letter was sent to MSHA indicating that Jenkins and
Koepke had been elected as representatives of the production shift miners
at the mine. The letter was signed by Duke Koepke and two other miners,
Jim Lindsey and Jim Montoya. On January 29, 1981, a copy of this letter
was sent to Droste and Short at Day Mines. A general meeting of miners
was not held to elect representatives prior to the drafting and mailing
of the letter.
Jenkins was absent from work January 15 through January 25, 1981, to
attend the funeral of his father. While he was gone, the sand-fill operation was completed in stope 4114 and miners John Holden and Tom Rice were
assigned to begin a new mining cycle in that stope. On January 31, 1981,
Jenkins' partner Vilardi was transferred out of stope 4222 and Terry Koepke,
son of Duke Koepke, was assigned as Jenkins' partner. Except for the period
of his suspension discussed below, Jenkins continued to work in stope 4222
until February 17, 1981, when the mining cycle was completed.
On February 2, 1981, shift boss Tom Bradley conducted a miners'
safety meeting at which various safety matters were discussed. Jenkins
was the only miner who spoke up and pointed out safety matters. The
following day, February 3, 1981, three petitions were circulated among
the miners at the mine. One was signed by 43 miners and stated that the
miners did not wish to work with Jenkins. A similar petition with 28
signatures stated that the miners did not wish to work with Duke Koepke.
A third petition with 52 signatures stated that Jenkins and Koepke did not
represent the miners at the Republic Unit Mine. The three petitions were
delivered to mine management.
On February 4, 1981, Jenkins was informed by Short that he was suspended for an indefinite period of time because of complaints about his
allegedly disruptive behavior. (Management took no action against Duke
Koepke.) The following day Jenkins received a letter advising him that
his suspension was without pay. On February 5, Jenkins met with Short
and signed an agreement to the effect that he would improve his relationship with other employees by refraining from any dialogue concerning
complaints or problems except as absolutely necessary. Jenkins was
then allowed to return to work.

1844

On July 6, 1981, the Secretary of Labor filed this discrimination
complaint on behalf of Jenkins against Day Mines. From July 22, 1981,
through August 14, 1981, Jenkins was the victim of numerous acts of
harassment and vandalism at the mine. These acts included the placing
of human waste and other substances in Jenkins' boots and other articles
of his clothing, the pouring of drill oil over his lunch bucket, and the
setting up of a suggestion box asking for "ways to get rid of Sam." On
July 23, 1981, Short posted a memorandum on the mine bulletin board
threatening employees with discipline, up to and including discharge,
for involvement in acts of harassment or vandalism. Short also instructed
the two shift foremen to have meetings with miners to advise them that
they would be disciplined for such acts. The shift foremen testified that
they had such meetings.
Following the evidentiary hearing in this case, the Commission's
administrative law judge issued a decision dismissing the discrimination
complaint in its entirety. The judge first examined Short's posting of
Jenkins' December 25 letter, which included among its complaints references
to misconduct by other miners. Jenkins argued that management's purpose
in posting the letter was to identify him as a troublemaker. Jenkins
asserted that the foreseeable and intended effect of the posting was to
expose him to the hostility of other miners. Hecla-Day pointed out that
Short had asked Jenkins several times whether he objected to the letter
being posted and that Jenkins had raised no objection. Hecla-Day argued
that management had a legitimate business justification for posting the
letter--Short was concerned over serious allegations in the letter of
alcohol use at the mine and believed he would discover whether there was
any truth to them by having the letter posted. The judge found Short's
explanation for posting the letter credible. The judge concluded, "[T]he
evidence does not support the contention by Jenkins that posting the
letter was intended to be a discriminatory act against him and such
allegation is rejected." 5 FMSHRC at 499.
The judge next examined whether the failure to reassign Jenkins to
stope 4114 when it became available again in January 1981 was discriminatory.
Jenkins argued that it had been the usual practice in the mine to return the
same mining crew to the stope they had previously worked when the sand-fill
operation was completed and the stope was ready for another mining cycle.
Hecla-Day contended that stope assignments were not rigid, and that Jenkins'
assignment was made in accordance with the mine's existing policies. The
judge found that a miner was not necessarily entitled to be returned to a
stope in which he had previously worked. He also found that because Jenkins
was not finished mining in stope 4222 when stope 4114 became available again,
and other miners were available at that time to work in stope 4114, the
assignment of the other mining team to stope 4114 accorded with the operator's
normal business policies. The judge concluded that neither adverse action nor
discrimination had occurred in connection with the stope assignments.
With regard to Jenkins' suspension without pay in February 1981, the
judge found that Jenkins had engaged in protected activity prior to his
suspension and that the suspension was motivated in part by his protected
activity. The judge found, however, that Hecla-Day had affirmatively
defended against Jenkins' prima facie case of discrimination. The judge
concluded, "After a careful review of all the evidence and on the basis

1845

of the Commission's directives regarding this issue, I conclude that [the
operator's] business justification for suspending Jenkins for two days was
not pretextual and the reasons for doing so were both credible and plausible
enough to prompt management to take this adverse action." 5 FMSHRC at 503.
Finally, the judge addressed the harassment of Jenkins that had
occurred in July and August after the filing of the discrimination
complaint. At the outset of the hearing, the Secretary moved to amend
the complaint to include allegations that these acts constituted a continuing pattern of harassment condoned by mine officials. Although the
judge denied the motion, he allowed the introduction of evidence concerning
the events of July and August. The judge concluded, "I find that the evidence fails to show that [the operator] was involved directly or indirectly
in any of the acts of vandalism or harassment ••• inflicted on Jenkins
following the filing of his complaint of discrimination." 5 FMSHRC at 504.
The judge thus dismissed the discrimination complaint.
Jenkins' petition for discretionary review raises several assignments
of error. His main contention is that the operator discriminated against
him by posting his December 25 letter, by failing to reassign him to stope
4114 in January 1981, and by indefinitely suspending him without pay on
February 4, 1981. Jenkins also asserts that the judge erred in certain
evidentiary rulings and in refusing to allow amendment of his complaint to
include the acts of harassment against him in July and August 1981. On
review the Secretary contends only that Jenkins' suspension without pay was
discriminatory. We conclude that the suspension without pay violated the
Mine Act, but reject Jenkins' other assertions of error.
II.
In order to establish a prima f acie case of discrimination under
section 105(c) of the Mine Act, a complaining miner bears the burden of
production and proof to establish (1) that he engaged in protected activity
and (2) that the adverse action complained of was motivated in any part by
that activity. Secretary on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); and
Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803,
817-18 (April 1981). The operator may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action
was in no part motivated by protected activity. If an operator cannot
rebut the prima facie case in this manner it may nevertheless affirmatively
defend by proving that (1) it was also motivated by the miner's unprotected
activities, and (2) it would have taken the adverse action in any event for
the unprotected activities alone. The operator bears the burden of proof
with regard to the affirmative defense • .!!!!.£. v. Magma Copper Co., 4 FMSHRC
1935, 1936-38 (November 1982). The ultimate burden of persuasion does not
shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20. See also
Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983); and Donovan-v:-st"afford
Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984)(specifically approving
the Commission's Pasula~Robinette test). The Supreme Court has approved
the National Labor Relations Board's virtually identical analysis for
discrimination cases arising under the National Labor Relations Act.
~ v. Transportation Management Corp.,~ U.S.~' 76 L.Ed. 2d 667
(1983).

1846

It is undisputed that Jenkins engaged in protected activities--indeed,
insofar as relevant to the issues in this case, only protected activities-during the period December 1980 through February 1981. These activities
included his communication of safety complaints to management in his
December 25 letter, his circulation of the petition in January complaining
of the cut-off of power to the main hoist, his efforts to elect miners'
representatives and to serve as one himself, and his voicing of safety
complaints at the meetings conducted at the mine on December 29, 1980,
and February 2, 1981. The crucial issue in this case is whether management took adverse actions against Jenkins because of his protected
activities. We turn first to the posting of his December 25 letter and
the January stope assignments.
The posting of Jenkins' December 25 letter
The judge ultimately found that Short's posting of Jenkins' letter
was not a "discriminatory act." 5 FMSHRC at 499. The judge rested his
dismissal of this portion of Jenkins' discrimination complaint on his
crediting of Short's testimony concerning the business reasons for the
posting. 5 FMSHRC at 498-99. Although the judge did not explicitly
phrase his conclusion in terms of the Pasula-Robinette framework, it is
apparent from his ultimate findings that he determined that Jenkins did
not prove the second element of a prima facie case and therefore failed
to establish a prima facie case. We agree. l/
A showing that an adverse action occurred is a component of the
second element of a prima facie case. In general, an adverse action
is an act of commission or omission by the operator subjecting the
affected miner to discipline or a detriment in his employment

1/
Certain aspects of the judge's legal analysis of the letter-posting
issue require clarification, although they do not affect his correct
determination that Jenkins failed to establish a prima facie case. Cf.
Secretary on behalf of Bush v. Union Carbide Corp., 5 FMSHRC 993, 996-97
n. 6 (June 1983). When viewed in the Pasula-Robinette context, the judge's
ultimate finding that the posting was not a discriminatory act can only
mean that he concluded there was no improper intent behind the posting.
This reading of the judge's decision is reinforced by his summary of conclusions in which he stated, "Jenkins has failed to establish a case of
discriminatory conduct ••• ·in regards to [the] posting •••• " 5 FMSHRC
at 509. Thus, in light of the judge's ultimate findings, we interpret
his comment that Short's posting was, in part, "motivated" by Jenkins'
protected activity (5 FMSHRC at 498) as a recognition that Jenkins'
protected writing of the letter was a necessary precondition to its
posting. We reject any suggestion that partially discriminatory
motivation was present as being inconsistent both with the judge's
ultimate findings and conclusions, and with our own determinations on
review.

1847

relationship. 3/ An adverse action may or may not be discriminatorily
motivated. Here, however, the posting of Jenkins' letter was not a
self-evident form of adverse action, like discharge or suspension.
Therefore, we must examine closely the surrounding circumstances to determine the nature of this action.
Hecla-Day's explanation that the letter was posted in an effort to
uncover the truth concerning Jenkins' allegations is credible. Jenkins
sent this letter to management in the aftermath of a fatal accident. The
letter leveled a number of serious safety complaints, for example, that
drinking by some miners was a major problem at the mine and had been a
contributing factor in the accident. 3/ As the judge found, there is
every indication on this record that mine management was concerned by
Jenkins' charges and was determined, in good faith, to ascertain
whether they had any basis.
In a letter dated January 5, 1981, General Manager Droste acknowledged receipt of Jenkins' letter and stated:
The observations and accusations contained therein
are of a most serious nature. I have informed
Mr. Calhoun [the president of Day Mines], and am
hereby advising you, that all items mentioned by
you will be investigated and will be treated in
a written response to you.
Res. Exh. 1. Management subsequently undertook an investigation of
Jenkins' complaints. The investigation resulted in Droste's detailed
letter of January 14, 1981, responding to and denying Jenkins' charges.
While this internal investigation was going on, Short met with Jenkins
and Vilardi on January 7, 1981, to seek their permission to post the letter.
Short testified that he asked for their permission several times, and that
neither Jenkins nor Vilardi raised any objection to the posting. The judge
specifically credited Short's testimony explaining his reasons for the posting:
Well, in reading the letter, of course, it brought
out a lot of questions to my mind. Being in my
position, I am aware that not everyone is going to
2/
This case does not require us to develop a more detailed inventory
of what is covered by the term adverse action. We recognize that discrimination may manifest itself in subtle or indirect forms of adverse
action. See generally Moses v. Whitley Development Corp., 4 FMSHRC
1475, 1478 (August 1982). We also borrow the apt words of the Court of
Claims, writing in a related context, that an adverse action "does not
mean any action which an employee does not like." Fucik v. United States,
655 F.2d 1089, 1096 (Ct. Cl. 1981). Determinations as to whether an
adverse action was taken must be made on a case-by-case basis.
3/
The truth of Jenkins' various complaints was not specifically tried in
this proceeding and is not relevant to the discrimination issues presented
on review.

1848

talk to me with the freedom that they would someone
else and so I thought that there may be.a chance that
the things that Sam had mentioned in his letter, there
may be some truth to parts of it. I didn't actually
· believe that there was, but I felt that I had to find
out if these allegations were true. I felt that by
posting ,the letter that I would find out one or two
things: either there was some truth to it and a group
of miners, either who signed the letter or who also
agreed with Sam and did not sign the letter, would
come forth to me on posting the letter and say, "yeah,
this is true," or I would get a negative response in
the sense that no one would come forward and that this
would also indicate to me that there was no truth to
what he was saying.
Tr. 214-15. Short further testified that if Jenkins had not agreed to
posting the letter, he would not have done so. Short stated that he had
not threatened Jenkins and that their meeting was conducted without
animosity.
In attacking the judge's crediting of this testimony, Jenkins argues
that the foreseeable and intended consequence of the posting was to expose
him to the hostility of other miners--and, presumably, to subject him to
intolerable working conditions. The posting of Jenkins' letter did provoke
an angry and threatening response by other miners. However, prior to the
posting, Jenkins had secured the signatures of four other miners to his
letter, had raised some of the same complaints at the December 29, 1980,
safety meeting, and had circulated a petition signed by 44 miners complaining of the power cut-off to the main hoist, a subject also mentioned
in his letter. Therefore, there was demonstrated support among other
miners for at least some of Jenkins' complaints. We are not persuaded
on this record that when Jenkins agreed to the posting, the foreseeable
and unavoidable consequence--in either his contemplation or that of
management--was the arousal of widespread antipathy towards Jenkins.
Furthermore, as the judge emphasized, "These acts by Jenkins indicate
an attempt on his part to publish his views as to. what he considered
was wrong at the Republic Unit [Mine]." 5 FMSHRC at 499.
In summary, the judge credited Short's testimony that he posted the
letter with Jenkins' uncoerced consent solely for legitimate business
reasons. Jenkins has not persuaded us on review to upset this credibility
resolution. In view of the foregoing considerations, we cannot treat the
posting as an adverse action or a form of discrimination motivated in any
part by Jenkins' protected activity. We therefore conclude that substantial
evidence supports the judge's dismissal of this aspect of Jenkins' complaint.
The January stope assignments
The judge's findings and credibility resolutions on this issue are
straightforward, detailed, and amply supported by the evidence. 5 FMSHRC
at 499-501. He concluded that the failure to reassign Jenkins to stope
4114, when it became available again after back-filling in January 1981,

1849

was neither an adverse action nor a discriminatory act. The judge further
concluded that even if partially discriminatory motivation could be inf erred
regarding the stope assignment,- Hecla-Day affirmatively defended against a
prima facie case.
The judge carefully reviewed the conflicting evidence on how stope
assignments were made. He found that there was not an existing policy
at the mine that expressly guaranteed permanent stope assignments to
miners. He also determined that the reason Jenkins was not reassigned
to stope 4114 was that he and his partner were not finished mining in
stope 4222 when the assignment needed to be made, and another crew was
available. The judge stated:
I find that the weight of the evidence supports [the
operator's] contention that their actions in this
instance were motivated by the time schedules as to
the availability of miners and stopes and the requirements for continued production in the mine. Stope
4114 became available for mining on January 23, 1981
and Jenkins was not finished in 4222 until February 17,
1981 which would cause measurable loss of production
if the stope was to remain idle during that time.
5 FMSHRC at 501.
The judge based these findings on his resolutions of conflicting
evidence. He specifically credited the testimony of Short that production
needs and the availability of miners were key factors to be weighed in
making stope assignments. Short's testimony was corroborated by that of
two experienced shift bosses. The judge also found reliable a detailed
41-page list·of stope assignments over time (Res. Exh. 7), which bore
out Short's testimony that miners did not have entitlements to permanent
assignments in any particular stope.
·
Substantial evidence clearly supports the judge's determination that
reassignment of miners to stopes they had previously worked was not
guaranteed, and that production needs and the availability of miners were
overriding factors in making the assignments. We have carefully reviewed
the record and discern no reason to disturb the judge's findings. We affirm
his conclusion that the failure to reassign Jenkins was based solely on
legitimate business reasons in accord with existing policies. We also agree
that even had management's actions been tainted in part by discriminatory
animus, the same assignments would have been made in any event for these
business reasons alone.
The suspension of Jenkins without pay
When Jenkins was initially suspended for an indefinite period on
Feburary 4, 1981, considerable turmoil had arisen at the mine centering
around Jenkins' various safety complaints and his attempts to represent
miners for safety purposes. Management had just received a petition
signed by 43 miners stating they were "tired of Chester (Sam) Jenkins[']

1850

agitating and disruptive accusations and do not wish to work with him."
Pet. Exh. 4. ·The judge found that the suspension of Jenkins "was the
culmination of various events recited earlier herein, such as, the
December 25th letter, his efforts to elect miner's representatives, and
safety complaints made by petition and at safety meetings." 5 FMSHRC
at 502. He concluded that the suspension of Jenkins was motivated in
part by the effects of his protected activity:
The evidence also shows there was animus on the part
of Day Mines's management towards Jenkins because of
these activities which caused tension amongst the
miners, was disruptive to the operation of the mine,
and reflected badly upon supervisors. From all of
these circumstances, I conclude that Jenkins has
established, by a preponderance of the evidence, a
prima facie case under the test set forth by the
Commission in Pasula-Robinette, supra.
Id. (Emphasis added.) We affirm the judge's conclusion that management
suspended Jenkins without pay because of his protected activity. On the
facts presented in this case, however, we disagree with his further conclusion that Hecla-Day affirmatively defended against Jenkins' prima
facie case.
The essence of the Pasula-Robinette affirmative defense is a showing
that the adverse action would have been taken in any event wholly apart from
considerations based on.the miner's protected activities. As discussed below,
we find no evidence that Jenkins engaged in misconduct. It also appears that
less drastic alternatives were available to management for handling the
situation. We cannot conclude that absent his protected activities Jenkins
would have been suspended without pay.
We recognize that the asserted focus of managerial concern was on the
effects of Jenkins' protected activities, not his actions themselves. A
miner's exercise of protected activity may not always prove popular and may
generate negative, even disruptive, reactions. However, .if miners could be
subjected to discipline merely because their protected activity became
unpalatable to others, the exercise of protected rights could be chilled.
The judge found no misconduct on Jenkins' part. He also found that
Jenkins had not "forced himself" on other miners. 5 FMSHRC at 503. The
evidence supports these findings. No other miners were subjected to adverse
action because of the turmoil in the mine. There was no posting of a general
disciplinary notice warning against continued disruption. If, as a matter
of last resort, it was deemed necessary to take action against Jenkins, and
no other miners, no reason appears why he could not have been briefly suspended without penalties and with pay. !!_/ However, we are left with the
4/
The operator permitted Jenkins to return to work after a two-day
hiatus following his agreement to refrain from any discussion of complaints or problems except as absolutely necessary. Although this return
to work limits the operator's back pay liability to two days, we emphasize
that an operator may not condition a miner's continued employment on a
pledge to refrain from activities protected by the Mine Act.

1851

fact that Jenkins alone was suspended without pay and suffered a financial
detriment because of his protected activity. Such a result cannot be
squared with the broad scope of protection afforded by section 105(c)(l) of
the Mine Act. Cf. Sioux Products, Inc. v. NLRB, 684 F.2d 1251, 1257-59
(7th Cir. 1982)(the discharge of only a union supporter because of unrest
stemming from protected activities held to be discriminatory). Accordingly,
we reverse and remand so that the judge may make an appropriate back pay
award.
Jenkins' other assertions of error
Jenkins' other assertions of error lack merit and do not require
extended comment. Jenkins argues that the judge erred in refusing to
allow amendment of the discrimination complaint to include the acts of
harassment against him in July and August 1981. The judge nevertheless
allowed the introduction of evidence on this subject, and thus afforded
Jenkins the opportunity to be heard on these issues. The judge found
that the operator had not been involved in these acts, and had taken steps
to stop them. These findings are supported by substantial evidence and we
affirm them. We have reviewed Jenkins' remaining evidentiary objections,
and conclude that the judge committed no legal error or abuse of discretion
in his evidentiary rulings.
III.
For the foregoing reasons, we affirm the judge in all respects
except for his conclusion that the suspension without pay did not
violate the Mine Act. On that issue, we reverse and remand so that
the judge may make an appropriate and expeditious back pay award.

1852

Distribution
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wjlson Blvd.
Arlington, Virginia 22203
Mr. Chester Jenkins
P.O. Box 625
Republic, Washington

99166

Bruce C. Menk, Esq.
Hale & Evans
2900 Energy Center
717 Seventeenth St.
Denver, Colorado 80202
Robert Mullen, Esq.
Day Mines, Inc.
5061 i/2 Cedar
Wallace, Idaho 83873

1853

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

August 28, 1984

ALLIED CHEMICAL CORPORATION

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

Docket No. WEST 79-165-M

DECISION
This civil penalty proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 !.S, seq. (1982), presents issues
involving longwall mining operations. A Cotmnission administrative law·
judge found that the cited condition, missing bolts in longwall roof
support units, constituted a violation of 30 C.F.R. § 57.9-2. 1/ We
granted the petition for discretionary review filed by the operator,
Allied Chemical Corporation ("Allied"). We conclude that substantial
evidence supports the judge's decision and, accordingly, we affirm.
At its Alchem Trena Mine, located near Green River, Wyoming, Allied
employs a longwall mining unit. Mining is conducted in longwall panel
entries some 400 feet in width and considerably greater in length. The
Allied longwall mining machine consists of a cutting device known as a
shearer, a face conveyor on which the shearer rides, and a line of large
roof support units called chocks. The chocks are located behind the
·face conveyor. Each chock is composed of an overhead canopy placed
directly against the mine roof, a hydraulic ram at the base of the unit,
and hydraulic legs (or jacks) between the base and canopy. The legs,
approximately six inches in diameter, support the canopy and are used to
raise or lower the canopy. The canopy is hinged in the middle, with a
large back portion and two parallel front arms. One leg supports each
of the front arms of the canopy and four legs support the back portion
of the canopy.

1/ Section 57.9-2 provides:
Mandatory. Equipment defects affecting safety shall be
corrected before the equipment is used.

1854

During the extraction process, the shearer makes continuous lateral
passes across the mining face to cut the trona ore. The ore is deposited
in the face conveyor below the shearer and transported by the conveyor
belt away from the face. As the shearer makes cuts at the face, the
chocks are moved forward by the hydraulic rams to support the newly
created roof. A 400-foot face requires some 125 chocks for roof support.
When all the chock units are side-by-side, parallel to the face, they
form a continuous chock line. As mining progresses and the chock line
is snaked forward, the roof is allowed to collapse behind the chocks.
The bolts that are the subject of this proceeding are made of soft
steel and are three-quarters of an inch in diameter and approximately
eight inches long. One bolt is inserted through each chock leg. The
attachment point is near the top of the leg just below a two to threeinch cup in the canopy in which the leg is positioned. The bolt is not
intended to provide direct roof support. Because of the stresses
generated in the operation of the chock equipment, the bolt will shear
off at some point during its use. However, the bolt serves two important
functions: preventing the legs from twisting beyond their design limits,
especially when the ram moves the chock forward, and holding the legs in
proper position in the canopy cups when the legs are raised or lowered.
Hydraulic lines are attached to each leg near the point where the bolt
is placed. As discussed below, if the leg twists due to a missing bolt,
the hydraulic lines could be torn off or ruptured. Such twisting could
also damage or destroy the hydraulic packing inside the leg.
The events leading to the citation at issue began on January 26,
1979, when inspectors from the Department of Labor's Mine Safety and
Health Administration ("MSHA") conducted a methane spot inspection of
the Allied mine pursuant to section 103(i) of the Mine Act. 30 U.S.C.
§ 813(i).
The inspectors determined that the panel in which the longwall miner was located contained amounts of methane in excess of applicable standards and issued an order withdrawing miners from the longwall
mining area. On January 29, 1979, MSHA inspectors conducted an abatement
inspection of the longwall area. During the course of this inspection,
the inspectors walked down the chock line and noticed two bolts missing
from legs on chocks No. 105 and 106. One of the inspectors issued a
citation alleging a violation of section 57.9-2. The citation stated
that the absence of the bolts "would create a hazard to persons working
under these chocks." On the accompanying "Inspector's Statement," the
inspector asserted that the missing bolts would adversely affect the
chocks' roof-supporting capabilities. During the same inspection, the
inspectors also issued three other citations alleging electrical violations in connection with a flag switch box located on a conveyor
frame.
The record reflects no disagreement that the condition of the
chocks and their leg bolts observed in the mine by the inspectors on
January 29 had not changed since January 26 when the withdrawal order
was issued. During the three-day interim the only miners permitted in
the affected area were fire bosses performing ventilation abatement
tasks. At the time the withdrawal order was issued on January 26, the
longwall unit had been de-energized and the shearer was not operating.
The chocks were, however, supporting the roof.

1855

Following an evidentiary hearing and the supmission of post-trial
depositions, the Commission's administrative law judge issued his decision concluding that Allied had violated section 57.9-2. 4 FMSHRC 503
(March 1982)(ALJ). Before the judge, Allied contended that section
57.9-2 did not apply to roof support equipment like the chocks because
the standards in section 57.9 are grouped under the heading "Loading,
hauling, dumping"--subjects that do not pertain to roof support. The
judge rejected this argument, relying on canons of construction, the
general purpose and structure of the Part 57 regulations, and the plain
language of the standard itself. 4 FMSHRC at 507-08. Applying the.
elements of the standard to the evidence, the judge found that the
missing bolts were "equipment defects affecting safety," and that,
within the meaning of the standard, the defects had not been corrected
before the equipment was used. 4 FMSHRC at 505-06, 508. Finally, the
judge rejected Allied's defense that the chocks were being repaired at
the time the withdrawal order was issued on January 26. 4 FMSHRC at
506. Jj
In urging reversal, Allied repeats the arguments it raised below:
that the cited standard does not apply to its longwall roof support
equipment, that the various elements of the standard necessary to a
finding of violation are not satisfied by the evidence, and that the
bolts were in the process of being replaced when the withdrawal order
was issued on January 26. These arguments are rejected.
We turn first to the coverage of the standard. Allied asserts that
the heading of 30 C.F.R. § 57.9--"Loading, hauling, dumping" -- bars
application of section 57.9-2 in the longwall roof support context.
However, it is evident from the structure and the content of Part 57,
Safety and Health Standards--Metal and Nonmetal Underground Mines,
that the headings used in that Part are designed for organizational convenience to supply short-hand characterizations of the general subject
matter involved in the standards. The only stated limitations on the
scope of the standards contained in Part 57 are distinctions between
those standards applicable to underground operations, those applicable
to surface operations of underground mines, and those applicable to both
areas of operation. The plain words of section 57.9-2 broadly refer to
the correction of "equipment defects" without any limitations as to the
types ·of equipment covered. While headings may sometimes provide an
intrinsic aid to construction, they do not control over the plain
words of a legislative text. In' cases of conflict, precedence must be

'];../
The judge vacated the three electrical citations based on his
finding that an Allied electrician was repairing the cited switch box
when the withdrawal order was issued. The Secretary of Labor has not
sought review of this aspect of the judge's decision.

1856

given to the words in the body of a provision over those in the caption.
See, for example, Brotherhood of Railroad Trainmen v. Baltimore & Ohio BR,
331 U.S. 519, 528-29 (1947); U.S. v. Roemer, 514 F.2d 1377, 1380 (2d
Cir. 1975); 2A C.D. Sands, Sutherland Statutory Construction§ 47.14
(pp. 93-97)(4th ed. 1973).
Moreover, we are not persuaded that any conflict exists between the
heading of section 57.9 and the body of section 57.9-2 as applied to
the distinctive longwall operations involved in this case. The cited
.1ongwall unit is a single integrated equipment system. The chocks are
an integral and essential component of the longwall unit, which is
primarily used to cut ore and to load and transport. it away from the
face. These latter functions are within the scope of the heading of
section 57.9, and they cannot be performed without the roof support
integrally provided by the chocks. For the foregoing reasons, we conclude
that section 57.9-2 was properly applied to the chock components of
the Allied longwall unit.
The major issues regarding the judge's findings that Allied violated
section 57.9-2 mirror the elements of the standard: (1) whether the
missing bolts constituted an "equipment defect"; (2) if so, whether this
defect was one "affecting safety"; and (3) whether the operator failed
to correct the defect before the equipment was used,
Allied does not directly press an "equipment defect" argument on
review, although some of its contentions imply that no defect was
present. In both ordinary and mining industry usage, a "defect" is a
fault, a deficiency, or a condition impairing the usefulness of an
object or a part. Webster's Third New Int·ernational Dictionary
(Unabridged) 591 (1971); U.S. Department of Interior, Bureau of Mines,
A Dictionary of Mining, Mineral, and Related Terms 307 (1968). Substantial evidence supports the judge's finding that the utility of a
chock is impaired by the absence of a leg bolt. The chock's function as
a means of roof support depends in part upon the successful operation of
the legs that support and raise and lower the canopy. Each leg includes
a bolt at the top to hold and guide the leg in the canopy cup. The
record is replete with evidence that without the bolt the leg may twist
excessively, resulting in damage to the hydraulic hoses attached to the
leg or to the hydraulic packing inside the leg. A missing bolt may also
be a causal factor in a leg coming completely out of a canopy cup. In
either case, the chock would not perform its roof support function as
effectively and, ultimately, the bolt would have to be replaced. Thus,
the absence of a bolt is an "equipment defect" within the meaning of
section 57.9-2. 1./

11

In reaching this result, we do not approve the judge's statement
that an equipment defect automatically arises "when equipment is not
maintained in the manner in which it is received from the manufacturer."
4 FMSHRC at 506. Although a manufacturer's design specifications may be
relevant in analysis. of alleged violations under this standard, we are
not inclined to adopt any form of per se rule in this regard.

1857

The judge further found that the absence of the two bolts in this
case affected safety. We agree. Although the effect on safety of two
missing leg bolts in a hydraulic chock line of some 125 units could be
viewed as inconsequential and beyond the standard's purview, we are not
prepared to dispute the judge's findings as to the adverse impact on
safety occasioned by the two missing bolts.
The starting point for analysis is the broad language of the
standard, "affecting safety." That phrase is neither modified nor
limited. Although this case does not require us to describe the minimal
effect on safety cognizable under the standard, it is clear that the
standard has a wide reach. The safety effect of an uncorrected equipment defect need not be major or immediate to come within that reach.
Substantial evidence supports the judge's finding that the missing
bolts affected safety. !!I There is no dispute on this record that
without the bolts legs could twist excessively, severing the attached
hydraulic hoses or damaging the internal hydraulic packing. The inspectors involved in issuance of the citation credibly testified that
any such failure in the integrity of the hydraulic support system could
cause a loss of hydraulic pressure in the affected legs and a consequent
and unintended drop of the canopy or one of its hinged portions. The
area along the chock line under the front canopy arms was a travelway
used by miners. A drop of any portion of the extremely heavy canopy
could pose a hazard to miners in the area. An unintended lowering of
the canopy would also lessen the continuity of the available roof
support and could increase the risk of roof falls.
Allied argues that in the event of damage to hydraulic lines or
packing, hydraulic pressure in the affected legs normally would be
maintained by safety stop valves in the equipment. We are not persuaded.
As the judge found (4 FMSHRC at 505), if the stop valves were activated,
. the affected chocks would have to be "bled off" and the canopies lowered.
In turn, the lowering of the canopies could adversely affect the safety
of the roof support.
As noted below (n.4), it is not clear which legs on chocks No. 105
and 106 were lacking bolts. Allied argues that, as to the rear portion
of each canopy, all four legs and the stop valve system would have to
fail before any lowering in the rear of the canopy occurred. While we
agree that the immediacy of the effect is greater if one of the single
4/
We note that the record does not clearly indicate which legs on
chocks No. 105 and 106 were lacking bolts. Because there was testimony
that the front arms of the chocks in question were tipped down at the
time of the citation (Tr. 119), it appears that one of the front legs of
each chock was involved. However, as discussed in the text, our decision
would be the same regardless of which legs were involved.

1858

legs supporting a front arm fails, any missing bolt is potentially
serious. If even one bolt is missing, the possibility of a hydraulic
failure occurring in the affected chock unit is increased. Allied
correctly points out that because of the stresses under which the chock
equipment operates these soft steel bolts are designed, and are expected,
to shear off. However, this design feature does not relieve Allied of
the duty continually to maintain the chocks with a full complement of
inserted bolts. Furthermore, a missing bolt may also cause the leg of a
chock to fail to reset in the canopy cup during movement of the chock or
canopy. Should this happen, the canopy would be compromised and roof
support could be adversely affected. In this case, the judge credited
the testimony of the MSHA inspector that the citation was issued, in
part, because one of the legs was out of the canopy cup at the time. 4
FMSHRC at 505.
The judge also rejected Allied's argument that a violation did not
occur because there was no evidence that the bolts were missing before
the chock line was put in use, the chock line was pre-shift inspected,
and the bolts were supposed to be replaced every eight hours. In
evaluating Allied's contentions, the unique features of the longwall
roof support system must be taken into account. As Allied recognizes,
the chocks are in use continuously from the time they are raised to
support the roof. Petition for Discretionary Review 17. Even if the
longwall miner is de-energized and the shearer is not operating, the
hydraulic chocks still support the roof. The record indicates that the
chocks were supporting the roof on January 26 when the withdrawal order
was issued.
In Ideal Basic Industries, Cement Division, 3 FMSHRC 843 (April 1981),
we held that use of a piece of equipment containing a defective component
capable of being operated and which, if operated, could affect safety,
constituted a violation of 30 C.F.R. § 56.9-2, the .identical safety
standard for sand and gravel mining operations. 3 FMSHRC at 844-45. In
Solar Fuel Company, 3 FMSHRC 1384 (June 1981), we .held that electrical
equipment in impermissible condition and habitually used or intended for
use inby the last open crosscut could be cited for violation of 30
C.F.R. § 75.503, even if the equipment was located outby the last open
crosscut at the time of citation. 3 FMSHRC at 1385-86. In both decisions,
we interpreted the standards in light of their broad purposes. The
result was to assure greater safety in equipment use.
A similar application of the standard cited in this case is warranted.
Defects affecting safety in equipment continuously in operation, including
those occurring during the course of operation, must be corrected before
the equipment is used any further. The contrary approach urge~ by
Allied could result in such defects not being repaired for substantial
periods of time, thus needlessly increasing safety risks.

1859

Finally, Allied asserts that on January 26, chocks No. 105 and 106
were under repair, thereby establishing a complete defense against any
finding of violation. The judge found that proof was lacking to demonstrate that, when the withdrawal order issued on January 26, the missing
bolts were being replaced. Allied produced no evidence that miners were
actually repairing the condition. The Allied longwall supervisor
testified that "he could not remember" the name of the panel mechanic he
claimed to have assigned January 26 to inspect the chocks. Tr. 193.
The judge credited the inspector's testimony that no tools were present
and no one claimed maintenance was being done in the area of chocks No.
105 and 106 on January 26. On review, Allied has not persuaded us that
the judge erred in his credibility resolution or in his ultimate findings
on this issue. Moreover, we concur with the judge's observation that
assigning a miner to do work is not equivalent to having completed the
work.
Thus, we conclude that the missing bolts constituted an "equipment
defect affecting safety" that was not corrected before use of the equipment.
On the foregoing bases, we affirm the judge's decision. 21

21

Commissioner Nelson did not participate in the consideration or
disposition of this case.

1860

Collyer, Chairman, dissenting:
I must dissent from my colleagues' erroneous stretching of a
regulation specifically designed for one purpose to cover a
completely separate circumstance. While there may have been a
citable violation on the facts of this case, a question which
the record here is insufficient to answer, any violation was not
of the standard cited by the Secretary and relied upon by the
majority.
As acknowledged by the majority, the chocks of Allied's
longwall mining system "function as a means of roof support."
Dec. at 4. The fact that each of two separate chocks was missing one bolt from one unidentified leg allegedly created a roof
control hazard. But the citation issued by the inspector and
upheld by the majority alleges a violation of a standard relating to loading, hauling and dumping, not to roof support. I
cannot understand how this condition fits within the scope of
the selected standard and would hold that the Secretary failed
to prove a violation.
The inspector cited a violation of 30 C.F.R. 57.9-2. Subpart
9 of Part 57 applies on its face to "Loading, hauling, dumping."
While I agree with the general concept behind the majority's
opinion that too much can be made of a statutory or regulatory
heading, that principle is stretched too far here. If applied
as the majority chooses, the cited standard becomes redundant
with other standards in Part 57 and could well introduce a
general-duty concept to Mine Act enforcement. Such a result is
inimical to the intent of the Act, the regulatory scheme of Part
57, and the legislative history.
It must first be noted that the Mine Act is a statute that
provides for liability without fault, commonly called strict
liability. Allied Products Co. v. FMSHR8, 666 F.2d 890, 893-894
(5th Cir. 1982). Ignorance of a violative condition does not
relieve an operator of liability although it may reduce an assessed penalty. Therefore, the entire scheme of 30 C.F.R. in
general, and of Part 57 in particular, must be read in a manner
that provides clear notice of which standards are applicable to
various mining situations.
The overall organization of the regulations attempts to do
just this. Different Parts of 30 C.F.R. contain safety and
health standards applying to metal and nonmetal open pit mines
(Part 55); to sand, gravel and crushed stone operations (Part
56); to metal and nonmetal underground mines (Part 57); and to
coal mines (Parts 70-90). Within each Part, different Subparts
apply to different activities at those mines: Part 57 applies
to metal and nonmetal underground mines and is divided into
various Subparts for standards generally applicable to ground
control, explosives, drilling, electricity, and illumination,

1861

among others. 30 C.F.R. §§ 57.3, 57.6, 57.7, 57.12, 57.17.
Within each Subpart, the individual standards are further
divided into sections containing those standards applicable to
both surface and underground areas of underground mines, those
applicable only to surface areas and those applicable only to
underground areas.
Nor was this organization accidental. Part 57 was promulgated by the Secretary of the Interior on July 31, 1969. 34
Fed. Reg. 12517. The preamble to that promulgation notes that
one of the changes made in the final standards from the earlier
proposal was the combination of certain related subparts. It
also explains that Parts 55, 56 and 57 will have parallel organization, stating (emphasis supplied):
Sections which deal with a given subject will have identical
decimal numbers in the three sets of regulations which deal
with open pit mines, sand, gravel, and crushed stone operations, and underground mines. Thus, the standards on drilling in the three sets of regulations will appear in Sections
55.7, 56.7 and 57.7, respectively; and standards on materials handling and storage will appear in Sections 55.16,
56.16, and 57.16.
By the same token, it seems to me obvious that the ground control standards found in subparts 55.3, 56.3, and 57.3 are those
to which a metal-nonmetal or sand and gravel operator should be
able to look to determine whether its roof and ground control
system complies with relevant federal requirements.
In fact, 30 C.F.R. 57.3-22 states (emphasis supplied):
Miners shall examine and test the base, face, and rib of
their working places at the beginning of. each shift and
frequently thereafter. Supervisors shall examine the ground
conditions during daily visits to insure that proper testing
and ground control practices are being followed. Loose
ground shall be taken down or adequately supported before
any other work is done. Ground conditions along haulageways
and travelways shall be examined periodically and scaled or
supported as necessary.
If it is MSHA's position that the missing bolts rendered the
chocks inadequate to support the roof at Allied's trona mine, it
could have issued a citation under this standard saying so. It
makes no sense to try to bootstrap an alleged roof control deficiency into the cited loading, hauling, and dumping standard.

1862

Furthermore, if Section 57.9-2 is given the broad interpretation that the majority uses, it would be redundant with a number of analogous standards in other subparts of Part 57. For
example, 30 C.F.R. 57.7-2, under the heading "Drilling," is
identical to the standard cited in this case: "Equipment defects
affecting safety shall be corrected before the equipment is
used." If either standard were intended to be applicable to all
equipment in underground metal and nonmetal mines, there would
be no need for two identical standards. A number of additional
standards in Part 57, although not containing wording identical
to that in Section 57.9-2, provide similar prohibitions against
the use of defective equipment. See, e.g., 30 C.F.R. 57.3-8,
57.10-3, 57.12-30, 57.14-26, 57.19-120. Under the majority's
interpretation of Section 57.9-2, the need for these standards
would be obviated.
For similar reasons, I also cannot agree with the majority's
conclusion that the roof support chocks may be considered loading, hauling and dumping equipment within the scope of section
57.9. The basis for this holding is that "[t]he chocks are an
integral and essential component of the longwall unit, which is
primarily used to cut ore and to load and transport it away from
the face." Dec. at 4. However, the primary purpose of any
mining system is "to cut ore and load and transport it away from
the face." In underground mines, roof support is essential to
this process and roof control is therefore an integral part of
any underground mining cycle. The fact that there is some physical, rather than only functional, connection between the various components of a longwall system carinot be used to transform
a roof support chock into a piece of haulage equipment.
Of equal importance, the broad application of 57.9-2 adopted
by the majority also converts that standard into a general duty
standard, contrary to the express intent of Congress in enacting
the Mine Act. House and Senate Conferees explicitly removed a
general duty clause contained in the Senate version of the Mine
Act before passage. The Conference Report explained:
The Senate bill contained a "general duty" clause which
required operators to furnish safe and healthful working
conditions free from recognized hazards likely to cause
death or harm to miners and to comply with rules, regulations and orders promulgated under the Act. This provision
would have permitted the issuance of citations or the assessment of civil penalties based on violations of the general duty. The House amendment had no general duty clause.
The conference substitute conforms to the House amendment.

1863

S. Conf. Rep. No. 461, 95th Cong., 1st Sess. 38-39, reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 1316-1317 (1978). The report further
explained Congress' belief that the imminent danger provision of
Section 107(a), 30 U.S.C. 817(a), was sufficient to prot~ct
miners' health and safety where dangers outside the scope of the
specific standards existed. Id. The scheme adopted by Congress
provides this protection to miners without a general duty clause
that would subject operators to mandatory civil penalties for
conditions which are not prohibited by specific standards.
By its decision, however, the majority introduces into the
cited standard a "general duty" concept applicable well beyond
loading, hauling and dumping. The decision ignores the nature
of underground mining systems and turns identical or similar
standards within other Subparts into surplusage. It ignores the
clear legislative history declining to adopt a general .duty
concept. It also ignores the relevant roof control standard
which is applicable.
I dissent.

1864

Distribution
Douglas L. Davies, Esq.
Van Cott, Bagley, Cornwall & McCarthy
Suite 1600
50 South Main Street
Salt Lake City, Utah 84144
Anna L. Wolgast, Esq.
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
333 West Colfax Avenue, Suite 400
Denver, Colorado 80204

1865

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

August 28, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
DOCKET NO. PENN 83-63

v.
U. S. STEEL MINING CO., INC.

DECISION
The issue in this civil penalty case is whether a cited
violation of a regulation relating to permissible electric
equipment was properly designated "significant and substantial,"
as that term is used in the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1982) ("Mine Act").
The case involves a violation of mandatory safety standard
30 C.F.R. § 75.503, which requires coal mine operators to "maintain in permissible condition all electric face equipment required . . . to be permissible . . . " 1/ Here, one of four
bolts required to attach the lens to the headlight assembly of a
shuttle car was loose, compromising the explosion-proof nature
of the headlight compartment. In a civil penalty proceeding
before an administrative law judge of this independent Commission, U. S. Steel Mining Co. ("U.S. Steel Mining") conceded
that it had violated the standard, but argued that the violation
should not have been designated significant and substantial
under the Commission's decision in Cement Division, National
Gypsum Co., 3 FMSHRC 822 (April 1981).
At the hearing before the judge, the MSHA inspector who
issued the citation was the only witness to testify about the
violation in this case. He explained that he had issued the
citation at 10:30 a.m. on January 4, 1982. Shortly before, at
9:20 a.m., the inspector had also issued a citation for excessive coal accumulations in an entry and crosscut about 320 feet
1/ Relevant permissibility standards are set forth in 30 C.F.R.
Part 18, including § 18.46(a), requiring that headlights "be
constructed as explosion-proof enclosures." "Explosion-proof
enclosure" is defined in § 18.2.

1868

from the subsequently cited shuttle car. He said that the crew
had stopped mining activities in order to clean up the cited
accumulation. 2/ The cleanup was still in progress when the
inspector issued the shuttle car citation.
The MSHA inspector testified that the purpose of requiring
that headlights "be constructed as explosion-proof enclosures,"
30 C.F.R. 18.46(a), is to ensure that any ignition that may
occur inside the headlight will not escape into the mine atmosphere. He explained that the atmosphere inside the enclosure
expands and contracts as the headlight is turned on and off.
When the headlight is turned off, the atmosphere inside the
enclosure cools, contracting and drawing in outside air which
may contain methane. Sparks in the headlight compartment could
cause a methane ignition inside the compartment. The inspector
testified that, if such an ignition occurred, "[w]ith the one
bolt loose like that, the pressures that are built up, you could
have distortion or even breakage of some of the other bolts that
would allow the flame from an ignition inside the compartment to
escape to the outside atmosphere." Tr. 81. In that event, a
larger explosion could then occur, injuring or killing the
shuttle car operator or any other nearby miners.
The inspector testified that he designated the violation
significant and substantial because he believed that an explosion of this type was "a reasonable thing that could happen."
He noted that an explosion "in either Colorado or Utah" that had
recently killed 15 people "was directly attributed to an opening" in a headlight compartment. Tr. 82. He also testified that
Maple Creek #2 is a gassy mine that liberates over one million
cubic feet of methane in a 24-hour period and noted that the
shuttle car was on the same section where he had just cited
U. S. Steel Mining for excessive coal accumulations.
Based on this testimony the judge affirmed both the citation
and the inspector's significant and substantial finding. 5
FMSHRC 1873 (October 1983) (ALJ). He assessed a civil penalty
~f $100 for the violation, 3/ and U. S. Steel Mining petitioned
for discretionary review.

2/ A U. S. Steel Mining witness testified, in reference to the
accumulation violation, that no mining had yet started on that
shift, because the company was aware that the cleanup had to be
completed before mining could be resumed. The judge did not
make a specific finding on this issue.
3/

The Secretary had proposed a penalty of $206.

1867

On review, U. S. Steel Mining, conceding that it violated
the standard, argues that the likelihood of the violation contributing to a methane explosion was so remote that the violation may not be designated significant and substantial. Specifically, it argues that the judge's "premise" that sparking
occurs within a headlight is "unsupported in fact or by the
·record." (Br. 3) It further claims that an explosive concentration of methane would not have occurred in the area of the
violation and that neither the inspector nor the judge properly
applied the Conunission's National Gypsum test in determining
that the violation should be designated significant and substantial.
We hold first that substantial evidence supports the judge's
conclusion that sparking occurs within the headlight. We note
again that the inspector who issued the citation was the only
witness to testify about the violation. He testified that,
although sparking within the headlight is not "normal," it is
"frequent" and can be caused by any of a number of factors. Tr.
85, 89. Since U. S. Steel Mining presented no contrary evidence,
we reject its assertion that the judge erred in finding that
sparking occurs within the headlight.
As to the contention that any hazard posed by the violation
was too remote to justify a significant and substantial designation, we have previously held that a violation should be designated significant and substantial "if, based on the particular
facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." National
Gypsum, supra, 3 FMSHRC at 825. In Mathies Coal Co., 6 FMSHRC
1, 3-4 (January 1984) we explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum the Secretary of Labor must prove: (1) the underlying
violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety-contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature.
We have further explained that the third element of the Mathies
formulation "requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an
event in which there is an injury." U. S. Steel Mining Co., 6
FMSHRC
(Docket No. PENN 83-39, slip op. at 3)(August 1984).
In our decisions we have emphasized that, in line with the language
of Section 104(d)(l), 30 U.S.C. § 814(d)(l), it is the contribution
of a violation to the cause and effect of a hazard that must be
significant and substantial.

1868

Applying these principles to the instant case, we affirm the
judge's holding that the cited violation was properly designated
significant and substantial. In doing so we reject U. S. Steel
Mining's contention that because mining was not taking place at
the precise moment the citation was issued, the violation posed
no hazard. Mining was scheduled to resume as soon as the nearby
accumulation was cleaned up, and there was no suggestion that
U. S. Steel Mining, in the normal course of events, would have
discovered and corrected the violation before that time.
Similarly, the fact that the mine's ventilation was adequate
at the time the citation was issued did not diminish the possibility that the violation would result in a serious mine
hazard. The Maple Creek #2 mine is classified as gassy and has
a history of methane ignitions. Additionally, there was an
excessive accumulation of coal not far from the cited shuttle
car. U. S. Steel Mining offered no evidence to rebut the testimony of the inspector that it was reasonably likely that the
violation would contribute to a methane explosion. Under these
circumstances we believe that the violation was properly designated significant and substantial.
For the foregoing reasons we affirm the decision of the
administrative law judge.
~•

-~~~o~s~e~m~a~r~y~...,..._~~-C~o-1-1-~-e-r-~-,-+-c-:-.-i-r_m_a_n~~~~~~~

lson, Commissioner

Commissioner Lawson concurring:
On the basis of the criteria set forth in my separate opinion
in Cement Division, National Gypsum Co., 3 FMSHRC 822 (April
1981), I concur in finding the violation in this case to be
significant and substantial within the meaning of section 104(d)(l)
of the Mine Act, 30 U.S.C. § 814(d)(l).

A. E. Lawson, Commissioner

1869

Distribution
Louise Q. Symons, Esq.
U.S. Steel Mining Co., Inc.
600 Grant Street, Room 1580
Pittsburgh, PA 15230
Linda L. Leasure, Esq.
Office of the Solicitor
U,S, Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge James Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

1870

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

August 29, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 81-186-M

v.
CATHEDRAL BLUFFS SHALE OIL COMPANY
DECISION
This civil penalty case arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et~· (1982). At issue is whether
a Commission administrative law judge erred in dismissing a citation
issued to Cathedral Bluffs Shale Oil Company for a violation arising
from the work activities of an independent contractor. 4 FMSHRC 902
(May 1982)(ALJ). We affirm the judge's dismissal of the citation, but
for the reasons detailed below.
Cathedral-Bluffs is a Colorado partnership between Occidental Oil
Shale, Inc. and Tenneco Shale Oil Company. Occidental is the partnership's operating partner and, for purposes of this case, is referred to
as the "production-operator" of the Cathedral Bluffs mine. On February 8,
1978, Occidental contracted with Gilbert Corporation for the development
of three underground vertical shafts at the Cathedral Bluffs site at
Rio Blanco, Colorado. On September 4, 1980, a Department of Labor Mine
Safety and Health Administration (MSHA) inspector conducted an inspection of the ventilation and escapeway shaft, the "V&E" shaft, then under
development by Gilbert. At the time of the inspection this vertical
shaft descended about 1125 feet. Landings, or stations, were cut
horizontally into the shaft walls at predetermined levels. The MSHA
inspector observed that, contrary to the requirements of 30 C.F.R.
§ 57.19-100, the 1050 landing was not equipped with substantial safety
gates constructed so that material would not go through or under them. 1/
Instead, a chain was hung across the landing which could not prevent objects from falling down the shaft. The inspector issued citations
alleging a violation of section 57.19-100 to both Gilbert and Occidental.
1/

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

1871

The violative condition was abated promptly by the erection of a
conforming safety gate. Gilbert did not contest the citation issued to
it by the inspector, and accordingly, that citation became a final order
by operation of law. 30 u.s.c. § 815(a). Occidental, however, did contest
the citation issued to it and the penalty proposed by the Secretary of Labor.
It is the propriety of the issuance of the citation to Occidental, under
these circumstances, that is before us.
The Commission's administrative law judge held that our decision in
Phillips Uranium Corporation, 4 FMSHRC 549 (April 1982), was "dispositive",
and "on the authority of Phillips" he vacated the citation. The judge read
Phillips as establishing a per se rule that:
liability for a violation may not be imposed against
an owner-operator where the owner has retained an
independent company with experience and expertise in
the activity being undertaken and where the owner's
exposed employees do not perform any other work other
than to observe the progress of the contractor's
activities to assure compliance with quality control
and contract specifications.
4 FMSHRC at 902. Finding that the facts of the present case fell within
this perceived rule, the citation was vacated.
On review the Secretary argues that the judge erred in applying
Phillips as controlling precedent. The Secretary asserts that the citations at issue in Phillips were issued under MSHA's former "interim"
policy of citing only owner-operators for independent contractor violations.
Since then, however, new independent contractor identification regulations
have been adopted and were in effect at the time the citation was issued to
Occidental. 44 Fed. Reg. 44494 (July 1, 1980)(adopting new 30 C.F.R. Part 45).
Moreover, the Secretary argues that in issuing the citation, the inspector
relied upon and correctly applied the enforcement guidelines formally published
by the Secretary in the Federal Register as an appendix to the independent
contractor identification regulations. 44 Fed. Reg. 44497. Accordingly, the
Secretary submits that Phillips is not controlling and that the citation issued
to Occidental for the violation committed by its independen·t contractor must be
upheld as a proper exercise of his enforcement authority.

We agree with the Secretary that the judge read Phillips too broadly
and misapplied it as directly controlling the disposition of this case.
Contrary to the Secretary's assertions, however, we find that under a proper
application of governing legal principles, and in light of relevant factual
findings by the judge and the record considered as a whole, the judge's
dismissal of the citation must be affirmed.
The present case stands in a procedural posture different in a
crucial respect than that presented to us in Phillips. In Phillips
the Secretary had instituted proceedings solely against the productionoperator for violations committed by an independent contractor. He had
done so, well after our admonition in Old Ben Coal Co., l FMSHRC 1480
(October 1979), aff'd, No. 79-2367, D.C. Cir. (January 6, 1981), that his
interim "owners-only" citation policy placed administrative convenience

1872

ahead of miner safety. He had refused to proceed against the culpable
contractor even after he had adopted regulations and enforcement guidelines articulating a policy of holding contractors responsible for
violations committed by them. Accordingly, we held that the Secretary's
decision to proceed against Phillips, and not against the contractor,
had totally negated the intended effect of the Act's provisions
requiring the imposition of cumulative sanctions against independent
contractors, and that the Secretary had so acted simply because it
was administratively convenient for him to seek penalties from the
production-operator. For these reasons, the citations were vacated,
In contrast to the procedural posture of Phillips, the violation at
issue in this case occurred subsequent to the Secretary's adoption of his
new independent contractor regulations and enforcement guidelines. Through
these vehicles the Secretary abandoned his interim "owners-only" policy
and established a new, formal policy governing the issuance of citations
to independent contractors. Purportedly in accordance with this new policy,
in the present case the Secretary cited Occidental as well as its contractor
for the contractor's failure to guard the shaft landing. Therefore, the
rationale we relied on to vacate the citation at issue in Phillips is not
relevant here. Rather, the appropriate inquiry is whether the record
reflects proper application of the Secretary's new independent contractor
enforcement policy. As explained below, we hold that it does not.
The Secretary's formally adopted policy regarding the issuance of
citations for violations of the Act committed by independent contractors
provides:
Enforcement action against production-operators for
violations involving independent contractors is
ordinarily appropriate in those situations where the
production-operator has contributed to the existence
of a violation, or the production-operator's miners
are exposed to the hazard, or the production-operator
has control over the existence of the hazard. Accordingly,
as a general rule, a production-operator may be properly
cited for a violation involving an independent contractor:
(1) when the production-operator has contributed by either
an act or omission to the occurrence of a violation in the
course of an independent contractor's work, or (2) when the
production operator has contributed by either an act or
omission to the continued existence of a violation committed
by an independent contractor, or (3) when the productionoperator's miners are exposed to the hazard, or (4) when
the production-operator has control over the condition that
needs abatement.
44 Fed. Reg. 44497 (July 1980). ];/
2/
In his brief, the Secretary stresses the rulemaking process he
followed in adopting the independent contractor regulations and the
(Footnote continued)

1873

Throughout this proceeding the Secretary has relied on criteria (3)
and (4) as the basis for sustaining the citation issued to Occidental.
We conclude that the Secretary has failed to establish in the record the
requisite support to conclude that these criteria were met in the present
case.
According to the Secretary's third criterion, a production-operator
appropriately may be cited for a violation committed by an independent
contractor when the production-operator's employees are exposed to the
hazard created by the violation. Viewed as a whole, the record before
us is devoid of substantial probative evidence of such exposure. The
MSHA inspector testified that at the time that he observed the lack of
a safety gate at the 1050 landing, the lowest landing then developed,
no miners were below the landing. He further testified that he had
never seen Occidental employees at the bottom of the shaft. 3/ No other
evidence by the Secretary specifically places any Occidental-employee at
the bottom of the shaft at any point during the indeterminate period
that the 1050 landing lacked safety gates. There is general testimony
in the record to the effect that "quality control" inspectors and "safety
inspectors" employed by Occidental observed Gilbert's work as it progressed.
'!!here is no convincing, specific testimony, however, concerning the
frequenc:y and duration of such visits, or whether any such Occidental
employee in_~act was exposed to the hazard posed by the improperly guarded
1050 landing. .i\l.though there is testimony that an employee of Occidental
took gas samples in the shaft, including the bottom area, at unspecified
intervals, the extent o-f this employee's presence in the shaft cannot be
determined and no evidence-·establishes that he was at the shaft bottom at
a time when the 1050 landing l~~ked guards. Thus, a finding of exposure
of any Occidental employee to the ci_ted hazard can only be based on a
large amount of inference and conjecture, rather than on probative record
Fn. Y continued
corresponding enforcement guidelines. Sec. Brief at 15-18. He emphasizes
that "the Secretary decided to develop his prosecutorial policy through
the public procedure of rulemaking" (Brief at 16 n. 12), and that "these
formally published guidelines give clear public notice of the Secretary's
policy in exercising his discretionary policy." Brief at 17. We agree
with the Secretary that his independent contractor enforcement guidelines
are distinguishable from the provisions of his internal Inspector's Manual
which were found to be without legal effect in King Knob Coal Co., 3 FMSHRC
417 (June 1981).
3/
The inspector did state that during his inspection of the shaft
certain Occidental employees accompanied him to the shaft bottom. The
presence of these employees at the shaft bottom cannot be relied on to
support a finding of exposure. Section 103(f) of the Act provides miners
and operators with the right to designate representatives to accompany
inspectors "for the purpose of aiding such inspection." 30 u.s.c. § 813(f).
Any suggestion that exercise of this "walkaround" right, which is intended
to advance mine safety and health, can be relied on as a basis to impose
liability on an operator or increase the gravity of a violation must be
rejected.

1874

evidence. Although circumstantial evidence can be relied on in appropriate circumstances to establish a violation under the Mine Act, the
degree of inference and speculation necessary to be indulged in here
to support a finding of exposure, would require us to ignore the
Secretary's obligation to prove the existence of a violation. This
we will not do.
Assuming arguendo that the record could be viewed as supporting a
reasonable conclusion that Occidental's quality control and safety
inspectors were, to some extent, exposed to the violative condition, we
would nonetheless conclude that such incidental exposure could not support
the citation issued to Occidental. If sufficient exposure were to be
found on these facts, the Secretary's much-heralded independent contractor
citation policy effectively would be reduced to a "paper tiger" lacking any
substantive or practical effect. Independent contractors are engaged by
mine operators because of their expertise in specialized tasks. The
relationship between production-operators and independent contractors is,
by definition, governed by contract. 4/ That relationship also is defined
to provide a contractor freedom from the production-operator's control in
the actual performance of the task it is hired to accomplish. Equally
endemic to such a contractual relationship is the right of the productionoperator to determine if the services or goods contracted for have, in
fact, been satisfactorily provided. This necessitates, to varying degrees,
a monitoring and inspection of the progress of the work being performed
and an inspection and acceptance of the work once completed.
The present case presents a typical contractual relationship. See
Exh. R-1. Occidental contracted with Gilbert Corporation for the development of three vertical underground shafts. As we observed in Phillips,
supra, "the hiring of contractors to perform the specialized task of
shaft construction is common in the mining industry." 4 FMSHRC at 553.
Because Gilbert was retained for its expertise in shaft sinking, it
necessarily was given control over the performance of this specialized
work. In fact, no Occidental employee was permitted to enter the shaft
unless accompanied by a Gilbert employee. In accordance with contractual
and industrial reality, however, Occidental necessarily retained the right
to monitor the work being performed to determine if the contract were being
discharged properly. The frequency and duration of the visits by Occidental
personnel to the shaft is impossible to determine from the record. It is
clear, however, that Occidental's presence in the shaft was no more than
reasonably can be expected in any such contractual relationship and did not
involve the production-operator in the particulars of the work being
performed. It is certainly clear that, contrary to the statement in the
4/

As generally used at law, the term "independent contractor" describes

a party that "contracts with another to do something ••• but who is not

controlled by the other nor subject to the other's right to control with
respect to his ••• conduct in the performance of the undertaking."
Restatement (Second) of Agency§ 2 (1958).

1875

Secretary's brief, the record does not establish "constant Occidental
employee ezj>osure" to the hazard posed by the unguarded landing. Sec.
brief at 20. We cannot conclude that the limited access of Occidental's
employees to the work activities of its contractor, as demonstrated
by this record, satisfies the exposure criterion in the Secretary's
enforcement guidelines without rendering the guidelines meaningless.
We also must reject the Secretary's assertion that the present
facts satisfy the fourth criterion in his enforcement guidelines for
citing production~operators for contractor violations, i.e., "control
over the condition that needs abatement." As discussed-above, it is
true that Occidental reserved certain rights in its contract with Gilbert,
including the right to monitor and inspect work provided and the right
to terminate the contract in whole or in part if Gilbert "persistently
disregard[ed]" applicable laws, including the Mine Act. (Exh. R-1,
paragraphs 7 and 20.) The Secretary points to these contractual provisions as proof that in this case Occidental had "control over the
condition that needs abatement" within the purview of his fourth
criterion. We find this assertion unpersuasive. The rights reserved
by Occidental are basic contractual rights universally reserved in
well-drafted contracts in this industry and others. To hold that
the mere presence of such language in contracts between productionoperators and independent contractors satisfies the criterion of "control"
under the Secretary's independent contractor enforcement guidelines, would
vitiate the very essence of the guidelines. The plain fact is that if the
contractual provisions in this case constitute "control" for citation purposes,
every production-operator could be cited for every contractor violation.
This result has long been critized as ineffective enforcement of mine safety
statutes and was ostensibly abandoned by the Secretary upon the adoption of
his new policy. See,~., Association of Bituminous Contractors v. Andrus,
581 F.2d 853, 863 (D.C. Cir. 1978); Phillips Uranium, supra; and Old Ben,
supra, (majority and dissenting opinions).
We hold that before a production-operator can be deemed to "control"
a contractor's activities sufficient to justify the issuance of a citation
to it for a contractor's violation, some functional nexus, beyond the
contractual nexus reflected here, must be demonstrated linking the
production-operator's involvement with the contractor's violation.
We emphasize that in this case an independent contractor with a
continuing presence at the mine site was cited for a violation it
committed in the course of its specialized work; the contractor did not
contest the citation; and the hazardous condition was abated promptly.
Given these facts and the lack of any demonstrated exposure of Occidental
employees or control by the production-operator other than routine
verification of work performed, we believe that harm, rather than good,
would be done to the goal of achieving maximum mine safety and health if
such a strained interpretation and application of the Secretary's
enforcement policy were upheld. Therefore, we decline to interpret the
Secretary's regulations and guidelines to require precisely what their
adoption was intended to avoid.

1876

Accordingly, as modified by this decision, the administrative law
judge's dismissal of the citation issued to Occidental is affirmed.

18'77

Commissioner Lawson dissenting:
The principles established in Old Ben Coal Co., 1 FMSHRC 1480
(1979)("0ld Ben"), in conformity with the legislative intent and express
endorsement of Bituminous Coal Operators' Association, Inc., 547 F.2d
240 (4th Cir. 1977) ("BCOA"); 1/ continue to be eroded by this Commission
majority. In Old Ben the Commission stated:
It was not the intention of Congress to limit the
number of persons who are responsible for the health
and safety of the miner, nor to dilute or weaken the
obligation imposed on those persons ••• When a mine
operator engages a contractor to perform construction or services at a mine, the duty to maintain
compliance with the Act regarding the contractor's
activities can be imposed on both the owner and the
contractor as operators ••• Arguably, one operator may
be in a better position to prevent the violation.
However, as we read the statute ••• Congress permitted
the imposition of liability on both operators regardless of who might be better able to prevent the
violation.
1 FMSHRC at 1483. In Phillips Uranium Corp., 4 FMSHRC 549 (1982)
("Phillips"), the Commission backtracked by selectively quoting Old Ben:
We previously have observed that "[i]n many circumstances •••
it should be evident to an inspector at the time that he
issues a citation or order that an identifiable contractor
created a violative condition and is in the best position
to eliminate the hazard and prevent it from recurring."
1 FMSHRC at 1486.
4 FMSHRC at 553. No longer relying on statutory support, but instead
criticizing the Secretary's adherence to "administrative convenience," Y
id, the Commission vacated the citations, orders, and petitions for
assessment of civil penalty issued to the owner-operator.
In this case, where Occidental's own employees were exposed to the
hazard cited and where Occidental has impermissibly delegated its safety
responsibilities via contractual assignment to Gilbert, the Commission
has backtracked further. Having heeded the admonition in Phillips
against proceeding only against the owner-operator but not the culpable
independent contractor, the Secretary is now barred from proceeding
against both. Apparently, now the Secretary cannot guess correctly
against whom he may proceed. Borrowing an analogy used in other safety
and health litigation by the U.S. District Court for the District of

lf The principles of BCOA were subsequently reaffirmed by the U.S. Court
of Appeals for the Fourth Circuit in Harman Mining Corp. v. FMSHRC, 671
F.2d 794 (4th Cir. 1971), and endorsed by the U.S. Court of Appeals for
the Ninth Circuit in Cyprus Industrial Minerals Co. v. FMSHRC, 664 F.2d
1116, 1119-20 (9th Cir. 1981), quoting Republic Steel Corp., 1 FMSURC 5
(1979).
!:_/ The criticism was directed towards the Secretary's then-existing
policy to proceed only against an owner-operator.

1878

Columbia in National Congress of Hispanic American Citizens v. Marshall,
No. 2142-73 (D.C.D.C. Oct. 30, 1981), 1981 CCH OSHD ,[25,750 at 32,163,
the Commission's development of the law in this area is reminiscent of
Alice in Wonderland: each step forward brings us two steps backward.
My colleagues rely on the Secretary's enforcement policy to preclude
enforcement against this owner-operator. Again they use selective
quotation. Preceding the material from the guidelines cited by the
majority is the following statement in the preamble to these regulations:
However, as was fully discussed in the preambles to the
draft and proposed rules, the legislative history to
the revised definition and the case law makes it clear
that the production-operator remains ultimately responsible for the safety and health of persons working at
the mine.
45 Fed. Reg. 44494 (1980). 3/ Further, and included in that enforcement
policy itself, is the following:
MSHA's general enforcement policy regarding independent
contractors does not change the basic compliance responsibilities of production-operators. Production-operators
are subject to all provisions of the Act, standards and
regulations which are applicable to their mining operation.
This overall compliance responsibility of production-operators
includes assuring compliance with the standards and regulations which apply to the work being performed by independent
contractors at the mine. As a result, independent contractors
and production-operators both are responsible for compliance
with the provisions of the Act, standards and regulations applicable to the work being performed by independent contractors.
[Emphasis added.]
45 Fed.Reg. 44497 (1980).
It is beyond dispute that under the 1977 Act, owner-operators are
jointly and severally liable for violations involving independent
contractors at their mines. As noted in Cyprus Industrial Minerals Co. v.
FMSHRC, 664 F.2d 1116 (9th Cir. 1981),
[T]he addition of "independent contractors" to Section
3(d) [of the 1977 Mine Act] did not require the Secretary
to cite only the independent contractor. The addition
permitted the Secretary to cite the independent contractor,
the owner or both. [Emphasis in original]

*

*

*

3/ Of course, what existing case law and the Act's legislative history
made clear was that both owner-operators and independent contractors
were liable for violations of the Mine Act.

1879

In addition, mine owners are strictly liable for the actions
of the independent contractor violations under the Coal Act
and the present Act.
664 F.2d at 1119 (citations omitted). The regulations at 30 C.F.R. Part
45 provide the mechanism for implementing independent contractor liability
under the statute. It is clear from the preamble, as well as the policy
statement, that production-operators are no less liable today than was
the.case prior to their issuance. However, the Secretary's guidelines
are now being used by the majority to preclude enforcement. In Old Ben,
the Commission stated that the proper standard for reviewing Secretarial
enforcement decisions "is for the Commission to determine whether the
Secretary's decision to proceed against an owner for a contractor's
violation was made for reasons consistent with the purpose and policy of
the 1977 Act." 1 FMSHRC at 1485. In this case, it is the decision of
the Secretary that is consistent with the purpose and policy of the 1977
Act, not the decision of the Commission majority.
MSHA's policy indicated that enforcement actions against production
operators is "ordinarily appropriate," as a "general rule," under the
following circumstances:
(1) When the production-operator has contributed by
either an act or an omission to the occurrence of a
violation in the course of an independent contractor's
work, or (2) when the production-operator has contributed
by either an act or omission to the continued existence
of a violation committed by an independent contractor, or
(3) when the production-operator's miners are exposed
to the hazard, or (4) when the production-operator has
control over the condition that needs abatement.
The Secretary maintains, on the basis of record evidence, that this
enforcement action against Occidental is consistent with the Act and the
published guideline criteria. He makes specific reference to criteria
3 and 4 establishing exposure and control, with ample supporting citation
to record testimony and exhibits. I agree that the record supports the
Secretary on both grounds, but need go no further than criteria 3.
The contract between Occidental and Gilbert provided:
Contractor understands that operator and/or other
contractors will be working in and around areas where
work is to be performed under this contract.
(Exh. R-1 at 4). The evidence establishes not only that Occidental
employees in fact regularly worked in the shafts under construction, but
that Occidental ignored its statutory obligations to these same miners.
Occidental's manager of health, safety and security testified as follows:

1880

Mi. Mcclung, I'm not sure my notes are correct, so what
I do is make sure they are either correct or you will correct
me. I have you down as saying in your testimony ••• that you
had no power to control safety underground.
A. That's right, other than contractually.
Q. Which you mean to say, you have every right to do under the
contract?
A. Under the contract, I can go to Occidental management should
a situation warrant.
Q. Now, as I read this contract, Occidental had employees
under the ground; isn't that true?
A. They have shaft inspectors, true.
Q•. So your testimony, that while they were underground,
even though they were Occidental employees, you abdicated
all responsibility for safety?
A. It is part of the Gilbert contract.
Q. That is not what I'm asking whether or not it was the
contract. I just asked you what you did.
A. We did not actively inspect the shaft.
Q. Did you have a responsibility for safety then when they
were underground?
A. For their's?
Q. Yes.
A. If you are speaking of the safety inspectors, they were
under the full control of Gilbert.
Q. The shaft inspectors?
A. Yes.
Q. Do you assume their responsibility whatsoever for the safety
of your employees while they are underground; is that your
testimony?
A. Yes, we have got to do it that way.
Q. ·You did that pursuant to contract?
A. Correct.
Q. Irrespective of what the statutes might have said?
A. (No response.)
Q. It must be your testimony, that under the contract you had no
rights, regardless of what the statutes said, to do anything to
protect the safety of your employees; is that true?
A. If that is a question, if they were in imminent danger situation,
I would expect them to get out of the shaft.
Q. That was your expectation?
A. Yes.
Q. If they thought they were in imminent danger situations?
A. Yes.
Q. Now, the people that were down there were safety inspectors
to inspect the quality of workmanship, they weren't trained
safety individuals, were they?
A. No.
Q. So whether or not they were in a hazardous situation may or
may not be apparent to them because they weren't trained; isn't
that true?
A. That is the responsibility of Gilbert.
Q.

1881

Q.

I didn't ask you whether or not it was the responsibility.
Of course, they weren't trained to recognize it.
Q. Whether or not they were trained for it though, you
abdicted [sic] your responsibility, even though they weren't
trained to work underground; isn't that true?
A. I don't believe that you are describing that correctly.
Q. Tell me how I am wrong.
A. They had to be accompanied by Gilbert employees to be there.
Q. Do they have to be accompanied by Gilbert safety officers?
A. The management of Gilbert's supervision has got to assume
safety.
Q. Under the contract, as I understand it, Occidental had people
down there to inspect materials furnished by Gilbert; isn't that
true?
A. I believe that is a portion of their job.
Q. They had to inspect the workmanship performed by Gilbert?
A. That is true.
Q. They had the right to conduct irtspections and they make test
of the work performed by Gilbert?
A. That is true.
A.

Tr. 60-63. The majority inexplicably finds this evidence regarding exposure
of Occidental's quality inspectors inconclusive, notwithstanding McClung's
acknowledgement that they were in the shaft and that responsibility for
their safety was contractually assigned to Gilbert. McClung's testimony
is corroborated by Occidental safety inspector Inman who testified that
he had been "dowrt the shaft" and that he had seen a shaft inspector in
the V&E shaft "on the day that the citation was issued." Tr. 38. !±_/ In
addition, the MSHA inspector testified that he was told by miner Dyer, a
quality inspector employed by Occidental, that "he spent everyday in the
shaft ••• wherever they [Gilbert employees] were working." Tr. 20-21.
It is clear beyond peradventure that Occidental's miners were exposed to
the hazards of this mine, and Gilbert's shaft sinking operations.
The majority also asserts, assuming arguendo that exposure to mine
hazards by Occidental's shaft inspectors was established, that the
Secretary's guidelines would be meaningless if "incidental" exposure
(slip op. at 5) by Occidental's inspectors, for the purpose of monitoring
Gilbert's work performance, was held to be sufficient to satisfy the
exposure criterion. My colleagues would also find persuasive the fact
that the relationship between Gilbert and Occidental is governed by
contract. There is, of course, no statutory or other support for the
suggestion that operator Occidental's statutory duty to maintain safe
working conditions depends on the job classification of the exposed
mine~.
Nor is there any suggestion in the preamble to Part 45, or in
the enforcement policy itself, that degrees of exposure are even relevant.
As to the majority's reliance on the contract between Occidental and
Gilbert, it is elementary that a private agreement between parties cannot

4/ Since Inman himself was the shaft inspector who accompanied the MSHA
inspector, this evidence of exposure cannot relate to an Occidental
representative exercising section 103(f) walkaround rights. See slip
op. at 4 n.3.

1882

control or alter statutory duties. An operator may not delegate this
statutory duty to prevent safety and health hazards, nor may this Commission
properly endorse contractual shifting of the strict liabilities established
by the Act, Congress,- and the Courts. See Cyprus Industrial Minerals Co. v.
FMSHRC, 664 F.2d 1116, 1119-20 (9th Cir. 1981), quoting Republic Steel Corp.,
1 FMSHRC 5, 11 (1979); Central of Georgia Railroad Company v. OSHRC, 576
F.2d 620, 624-5 (5th Cir. 1978); Frohlick Crane Service, Inc. v. OSHRC,
521 F.2d 628, 631 (10th Cir. 1975).
In addition to rejecting this evidence establishing the exposure by
Occidental's inspector miners to the hazards·of the mine, the majority
also rejects record evidence establishing exposure to at least one other
Occidental employee whose job it wa~ to take gas samples in the shaft.
Again, McClung's testimony is revealing:

Q. What occasion would he have to go underground?
A. He !miner Parker] would go underground to--since we
were declared gassy in January of 1980, he would take gas
samples and random gas samples.
Q. When you say we were classified as gassy?
A. The Cb tract, the Cathedral Bluffs.
Q. When you say Cb, you mean Cathedral Bluffs?
A. Yes.
Q. What then would be his duties after that shaft was
cl~ssified as gassy?
A. What would be his duties?
Q. Yes.
A. Because we wrote the petition for the ventilation program,
he would have to assure that we had proper ventilation through
the area in the mine.
Q. Now, at the time the citation was issued, the Cb tract had
been declared gassy, had it not?
A. Yes.
Q. But at that time, you have just three development shafts;
is that correct?
A. That is correct.
Q. So I assume that he would inspecting for methane, the
accumulation in the shaft and in the stub landing also?
A. Basically he checked return air and ventilation at the
bottom of the shaft.
Q. And he was doing that prior to September of 1980?
A. Ye.s, his job is basically that.
Tr. 48-9. In sum, the job of Occidental's employee was to take gas samples
and check the ventilation system at the bottom of the shaft pursuant to the
ventilation plan adopted by Occidental after this mine was declared gassy
by MSHA. His job function was therefore unrelated to contractor Gilbert's
work. Nevertheless, the Commission majority again finds insufficient
evidence of this employee's exposure and whether he was at the shaft
bottom at a time when the cited landing lacked guards.

1883

The record does not contain the ventilation plan that Occidental
followed. However, the mandatory ventilation standards applicable to
gassy metal and nonmetal underground mines, codified at 30 C.F.R. §
57.21-20 through 57.21-74, supplies at least the minimum examination
requirements that must be followed.
§

57.21 Gassy mines

Gassy mines shall ••• be operated in accordance
with the mandatory standards in this section.

*

*

*

VENTILATION

*

*

*

57-21-59 Mandatory. Preshift examinations shall be
made of all working areas by qualified persons within
3 hours before any workmen, other than the examiners,
enter the mine.
Gilbert had begun the shaft sinking operation in 1978 and had a continuing
presence at the mine since that time. At the time of citation the shaft
had been excavated by Gilbert to a level approximately 70 to 80 feet
below the 1050 landing. The record does not indicate how long it had
taken Gilbert to excavate from the 1050 level to that lower level or
how long the cited landing had been unguarded. It is self-evident,
however, that all of it could not have been accomplished since the last
ventilation system preshift examination was conducted by Occidental's
employee. There is no basis in this record to assume that Occidental
had failed to meet its obligation to take regular "gas samples and
random gas samples" in this gassy mine. Nor does this record suggest
that under continued normal mining conditions the violation would have
been abated before Occidental's employee performed additional ventilation
checks and methane sampling. See U.S. Steel Mining Co., Inc., PENN 83336 (July 11, 1984); U. S. Steel Mining Co., Inc., PENN 83-63 (August 28,
1984).
Accordingly, based on the testimonial and documentary evidence of
record, there is substantial evidence to support the Secretary's assertion
that Occidental's employees were constantly exposed to the cited hazard.
This enforcement action against Occidental is consistent with controlling
precedent, the statute, the legislative history, the regulations and
policy statement, and the facts before us.
I therefore dissent.

(
A. E. Lawson, Commissioner

1884

Distribution
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
James M. Day, Esq.
Cotten, Day & Doyle
12th Floor
1899 L Street, N.W.
Washington, D.C. 20036

1885

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

August 29, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. VA 81-40-R
VA 81-65

v.

OLD DOMINION POWER COMPANY
DECISION
This consolidated proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 ~seq. (1982)("Mine Act"). The major
issue on review concerns whether the Department of Labor's Mine Safety and·
Health Administration (''MSHA") properly charged Old Dominion Power Company
("Old Dominion") with a violation of the Mine Act. A Commission administrative law judge answered this question in the affirmative. 3 FMSHRC 2721
(November 198l)(ALJ). For the reasons that follow, we agree, but conclude
that a penalty lower than that assessed by the judge is appropriate.
On January 22, 1980, a fatal accident occurred at an electrical substation located on property leased by Westmoreland Coal Company ("Westmoreland")
from Penn-Virginia Resources. The electrical substation is an open air
facility enclosed by a wire fence, and is adjacent to a mine access road.
Westmoreland paid for the construction of the substation, which is comprised
of utility poles, power lines, transformers, an electric meter, and a meter
box. Electricity is transmitted on incoming lines to the substation, where
it is stepped-down, or reduced, and then transmitted to a coal mine operated
by Elro Coal Company ("Elro"), which leases the mine from Westmoreland. The
electricity is used to power Elro's coal producing equipment. Elro sells all
the coal it extracts to Westmoreland for resale to other customers.

Electricity at the mine site is provided by Old Dominion Power Company, a
public utility doing business in southwest Virginia. Old Dominion transmits,
distributes, and sells electricity. Although most of its customers are noncommercial, it sells electricity to some commercial and industrial customers.
Old Dominion meters the electricity sold to its customers. Old Dominion
installs, owns, and maintains all such meters which are regularly read by
Old Dominion employees. Customers are billed on the basis of kilowatt hours
used. In conformance with this practice, Old Dominion meters Westmoreland's
substation. On a monthly basis an Old Dominion meter reader arrives at the
substation, reads the meter, and visually inspects it. If any of the
substation's components needs attention, Old Dominion's metering department
is informed and an employee is sent to the substation to correct any problem.
Old Dominion also owns and maintains five transformers at the substation.
Old Dominion has its own key to the substation to allow access by its
employees.

1886

In his decision the Commission's administrative law judge succinctly
summarized the events giving rise to this litigation:
The substation was first energized about 5 or
6 p.m. on January 21, 1980, by Westmoreland's
electrical foreman, Terry Mullins. The next day,
January 22, about 8:15 a.m., Mullins talked to
[Old Dominion's] superintendent of meters, Jack
Carr, on the telephone and expressed to Carr his
doubts as to whether Old Dominion's meter at the
substation was working properly because no light
was visible in the meter and because the disk in
the meter was turning counterclockwise. In Carr's
opinion, the disk was supposed to turn counterclockwise, but, to make certain that there was
nothing wrong with the meter, he sent two
employees to the substation to check the meter.
The two employees were James Harlow, a substation technician, and Leonard Lambert, a
meter man, first class. Harlow had helped
install the ••• transformers and meter at the
substation. Lambert would normally have participated in the installation, but he was on
vacation when the equipment was originally
installed sometime in December 1979. Lambert
had, however, gone to the substation on
January 21 and had installed a replacement
meter.
When Harlow and Lambert arrived at the substation,
Harlow, who was on the side of the van nearest to the
substation, jumped out and looked at the fuse
disconnects •••• He was used to seeing the type of
fuse link which is installed inside a tube. It was
foggy and he did not see any tube or wire between
the fuse holders or hanging down from the bottom
holder, so he concluded that the substation was
deenergized. [l/] Lambert took Harlow's word
for the fact that the substation was deenergized.
They did not at first go inside the fence around
the substation to look at the meter because they
concluded that the meter could not be checked
while no power was flowing through it. Although
the substation was energized and there was a hum
coming from the transformers, they apparently
did not hear the hum because of noise coming
from a nearby generator.

l/

Old Dominion's general manager described the weather that day as
"extremely bad ••• [i]t was raining and fog was coming and going." Tr. 60.

1887

Harlow and Lambert returned to their van,
started the engine, and were ready to leave
when it occurred to them that the GE transformers they had installed were of a new type
and might have a rating of 5 KW instead of the
15 KW which they should have had. They decided
to check the nameplate on the transformers to
determine their classification. Harlow put on
climbing equipment and went up the pole to
examine the nameplate. He could not see the
plate clearly because of water on it. He
reached out with one hand to rub the water off
the nameplate and was immediately electrocuted
when his hand touched the energized transformer.
3 FMSHRC at 2724-25 (transcript citations omitted).
MSHA investigated the accident and determined that there had been a
violation of 30 C.F.R. § 77.704, a mandatory mine safety standard. 2/ Thereafter, MSHA issued to Old Dominion a citation alleging a violation of that
standard. 3/ Old Dominion contested the citation and a hearing was held.
The administrative law judge concluded that Old Dominion was cited properly,
affirmed the citation, and assessed a penalty of $3,000 for the violation.
We.granted Old Dominion's petition for discretionary review and heard oral
argument. !::_/
The primary issue before us is whether, on the facts of this case, Old
Dominion properly was found to be subject to the Mine Act. That determination must be made through interpretation and application of sections 3(d),
3(h)(l) and (2), and 4 of the Act. 30 u.s.c. §§ 802(d), (h)(l) and (2),
and 803. For ease of reference we set forth the sections below:
2/
The standard states in part: "High voltage lines shall be deenergized
and grounded before work is performed on them." There is no dispute that
the terms of the standard were violated by the conduct of Old Dominion's
employees.
1./ As stated by the judge, "[c]onfusion arose as to which entity should be
cited for the violation because Elro Coal Corporation was using the power
received at the substation, Westmoreland owned and operated the substation,
and [Old Dominion's] employees did the work which caused the fatal accident."
3 FMSHRC at 2726 (transcript citation omitted). MSHA originally cited
Elro. In April 1980, however, the citation was modified to name Westmoreland as the responsible operator. ·Finally, in January 1981, the citation
was again modified to charge Old Dominion for the violation. The Department
of Labor's Occupational Safety and Health Administration ("OSHA") also
investigated the accident but took no enforcement action.
4/
In view of the nature of the issue presented, we requested additional
industry and labor viewpoints to assist us in our deliberations. The Edison
Electric Institute ("EEI") thereafter participated as an amicus curiae.
The arguments of EEI, in its brief and at oral argument, have been most
helpful to us in considering the important issues in this case.

1888

Sec. 3.

*

For the purposes of this Act, the term -

*

*

(d) "operator" means any owner, lessee, or other
person who operates, controls, or supervises a coal
or other mine or any independent contractor performing
services or construction at such mine;

*

*

*

(h)(l) "coal or other mine" means (A) an area of 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 to be 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 includes custom coal
preparation facilities. In making a determination of.what
constitutes mineral milling for purposes of this Act, 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;
(h)(2). For purposes of titles II, III, and IV, "coal
mine" means an area of land and all structures, facilities,
machinery, tools, equipment, shafts, slopes, tunnels,
excavations, and other property, real or personal, placed
upon, under, or above the surface of such land by any
person, used in, or to be used in, or resulting from,
the work of extracting in such area bituminous coal,
lignite, or anthracite from its natural deposits in the
earth by any means or method, and the work of preparing
the coal so extracted, and includes custom coal
preparation facilities;

*

*

*

Sec. 4. Each coal or other mine, the products of which
enter commerce, or the operations or products of which
affect commerce, and each operator of such mine, and
every miner in such mine shall be subject to the
provisions of this Act.

1889

We first address whether the site of the alleged violation, the substation, was -a "coal mine" or part of a "coal mine" as that term is defined
by the Mine Act. Old Dominion attempts to differentiate portions of the
geographic tract of land leased by Westmoreland Coal Company into "mine"
and "non-mine" areas. It asserts that that portion of land at which coal
is actually extracted from the ground is a "mine," whereas other areas
somewhat removed in distance from the specific extraction locale, including
the area of land on which the substation is located, should not be interpreted as being a mine or a part thereof. This narrow view of what constitutes a mine conflicts with the Act's expansive definition set forth
above. Sections 3(h)(l) and (2)'s broad definition of coal mine undoubtedly
covers a portion of a geographic tract of land leased to a coal operator on
which is located an electrical substation providing power for mining operators on that same tract of land. The substation certainly qualifies as an
"area of land," or a "structure," "facility," "machinery," "equipment," or
"property" on such land, "used in ••• the work of extracting coal." See
S. Rep. No. 181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977 at
602 ("Legis. Hist."). ("[I]t is the Committee's intention that what is
considered to be a mine and to be regulated under this Act be given the
broadest possibl[e] interpretation, and it is the intent of the Committee
that doubts be resolved in favor of inclusion of a facility within the
coverage of the Act.") See Donovan v. Carolina Stalite Co., 734 F.2d
1547 (D.C. Cir. 1984), and cases cited therein. We therefore conclude
that the substation is part of a coal mine and that the Mine Act and its
standards can be applied to regulate working conditions at that site.
Because it is not disputed that a violation of the cited MSHA standard
occurred in the course of work performed by Old Dominion employees, our
next inquiry is whether Old Dominion was properly cited under the Mine Act
for this violation. Section 4 of the Mine Act places the responsibility
for compliance on mine "operators." Therefore, Old Dominion can be cited
for a violation only if, on the facts of this case, it is an "operator."
Section 3(d) defines an operator as "any owner, lessee, or other person who
operates, controls, or supervises a coal or other mine or any independent
contractor performing services or construction at such mine." We conclude
that, on the facts of this case, Old Dominion was an independent contractor
performing services or construction at the mine and, therefore, was properly
cited for the violation committed by its employees.
As part of the 1977 amendments to the Federal Coal Mine Health and
Safety Act of 1969, 30 U.S.C. § 801 .!:..!. ~· (1969) (amended 1977) ("Coal Act"),
the phrase "any independent contractor performing services or construction
at such mine" was added to the Coal Act's definition of operator. The
amendment was intended "to settle an uncertainty that arose under the Coal
Act,~., whether certain contractors are 'operators' within the meaning
of the Act," and "to clearly reflect Congress' desire to subject contractors
to direct enforcement of the Act." Old Ben Coal Co., 1 FMSHRC 1480, 1481,
1486 (October 1979). Accord, Phillips Uranium Corp., 4 FMSHRC 549, 552
(April 1982).
Generally, the term "independent contractor" describes a party who
"contracts with another to do something ••• but who is not controlled by
the other nor subject to the other's right to control with respect to

1890

his ••• conduct in the performance of the undertaking." Restatement (Second)
of Agency§ 2 (1958). Insofar as its relationship with Westmoreland Coal
Company is concerned, we have no difficulty in concluding that Old Dominion
is an "independent contractor" as that term is commonly used at law. Pursuant
to contract Old Dominion is granted an easement to construct and maintain
electric power and transmission lines on and over the mine operator's property.
Substations on the property and "other points to be later designated" are to
be provided power by Old Dominion. The mine operator has the contractual
right "to connect any additional electric power or transmission lines, from
time to time, with any line or lines of [Old Dominion]." In order to determine the amount of electricity used by the mine operator and the payment
due, Old Dominion "has the privilege of metering each delivery point,"
and it does so on a monthly basis. In order to perform such metering, Old
Dominion has access to mine property and its own key to the substation. Thus,
it is clear that Old Dominion has a contractual obligation with Westmoreland
and the requisite freedom from control in performing its obligation, and
was serving as an independent contractor •.
By its terms, however, the Mine Act is applicable to independent contractors "performing services or construction" at a mine. Old Dominion
urges that this language limits the reach of the Mine Act to less than all
"independent contractors," and that it is beyond ·that limit. We next examine
whether Old Dominion was "performing services or construction" within the
meaning of section 3(d). "Service" has been defined to include: "the
performance of work commanded or paid for by another"; "an act done for the
benefit or at the command of another"; and "useful labor that does not produce a tangible commodity." Webster's Third New International Dictionary
(Unabridged) 2075 (1971). Pursuant to its contract with the mine operator,
Old Dominion provided electricity at a suitable voltage and metered its
consumption for billing. Old Dominion also provided labor to maintain the
electrical system, including its meters and transformers as well as equipment
owned by the mine operator, in proper and safe working condition. Old
Dominion's employees had helped install the transformers at the substation,
and had installed a replacement meter. 3 FMSHRC at 2424. At the time of
the events at issue, Old Dominion was at the mine site at the behest of the
mine operator to check the equipment to determine whether it was functioning
properly and, if necessary, to replace any defective components. In our
view, the work performed by Old Dominion constitutes the performance of a
service and places it within the literal terms of section 3(d). 1/
We find it unnecessary to decide in this case whether "there may be a
point ••• at which an independent contractor's contact with a mine is so
infrequent or de minimis that it would be difficult to conclude that
services are being performed." National Industrial Sand Assoc. v. Marshall,
601 F.2d 689, 701 (3d Cir. 1979). See also Legis • .!!!:.!!•, supra at 602,
1315. Rather, we conclude that, if there is a point at which the literal
reach of section 3(d) must be tempered, that point is not reached under

1f

Based on our conclusion that Old Dominion was performing services,
we need not inquire further as to whether Old Dominion's work also
qualifies as "construction" under section 3(d).

1891

these facts. Here, Old Dominion's employees were at mine property at the
request of the mine operator. The request for Old Dominion's services was
made, and responded to, in accordance with a longstanding, and regularly
maintained, business relationship defined by a written contract entered
into in 1952 as well as custom and practice. The services or work to be
rendered by Old Dominion included examination of an electrical facility
providing power to the mine and the performance of any necessary repairs,
services essential to the mine's operation. Old Dominion's assistance to
Westmoreland in installing, maintaining, repairing, and replacing electrical
equipment had been rendered in the past, was being rendered at the time of
the events at issue, and was to be anticipated in the future. The extent
of Old Dominion's contact with the mining process cannot be viewed as
de minimis. Accordingly, we conclude that in these circumstances, Old
Dominion is properly subject to MSHA standards regulating safe performance
of electrical work on mine sites.
We emphasize that by citing Old Dominion for the violation committed
by its employees, the Secretary has acted in accordance with the Commission's
longstanding view that the purpose of the Act is best effectuated by citing
the party with immediate control over the working conditions and the workers
involved when an unsafe condition arising from those work activities is
observed. Old Ben, supra; Phillips Uranium, supra. By citing the operator
with direct control over the working conditions at issue, effective abatement often can be achieved most expeditiously. Id. Citation of Old Dominion
is also consistent with the Secretary's conclusion, after rulemaking, that
"the interest of miner safety and health will best be served by placing
responsibility for compliance ••• upon each independent contractor."
45 Fed. Reg. 44494, 44495 (July 1, 1980).
Old Dominion argues that its work activities, whether on or off a mine
site, should be regulated pursuant to the Occupational Safety and Health Act
of 1970, 29 U.S.C. § 651 et seq. (1982)("0SHAct"). The Secretary of Labor
enforces both the Mine Actand the OSHAct and has considerable administrative
discretion in determining which of the two statutes should be applied in
circumstances where either reasonably could be applied. In the present case,
the Secretary has made the determination that compliance with the standards
promulgated under the Mine Act is preferable, and this determination is
entitled to deference. Nor does the Secretary's decision to proceed under
the Mine Act run counter to the dictates of the OSHAct, which anticipates
the potential for overlapping agency jurisdiction and eliminates the potential
conflict by providing that the OSHAct shall not apply to "working conditions
of employees with respect to which other federal agencies ••• exercise
statutory authority to prescribe qr enforce standards ••• affecting occupational safety and health." 29 U.S.C. § 653(b)(l). Here, MSHA has statutory
authority and has exercised that authority under the Mine Act.
We note that amicus curiae EEI has initiated discussions with the
Secretary concerning whether regulation by OSHA of the work activities of
electrical utilities on mine sites, rather than by MSHA, is more appropriate.
We encourage these discussions. Because of the Secretary's discretion in
this area, such discussions are a necessary first step in addressing the
concerns articulated by EEI on behalf of the electrical utilities that it
represents. We will observe with interest the progress of these discussions.

1892

In sum, we conclude that the Secretary's decision in this case to hold
Old Dominion responsible for the violative act committed by its employees is
within his statutory authority; is consistent with the purposes and policies
of the Act, and should not be disturbed.
We address three other challenges raised by Old Dominion to the legality
of the Secretary's issuance of the citation. Old Dominion argues that the
Secretary's definition of "independent contractor" at 30 C.F.R. § 45.2(c)
has been applied to it in an arbitrary and capricious manner, and that
proper application would not result in its designation as an independent
contractor. 6/ We disagree. On its face the regulation simply incorporates
the definition of "person" in section 3(f) of the Mine Act, 30 U.S.C.
§ 802(f), with the definition of "operator" in section 3(d).
As such, the
regulation does not differ substantively from the terms of the Act itself,
and tlie reach of the regulation is coextensive with the Mine Act.
Old Dominion also argues that the language of a continuing resolution
on appropriations, enacted on December 15, 1981, sheds light on the
question of the Mine Act's coverage of its activities. H.J. Res. 370,
95 Stat. 1183 (1981), provided funding for a portion of fiscal year 1982
to various federal agencies and departments. In part, the resolution prohibited MSHA from enforcing the Mine Act "with respect to any independent
construction contractor who is engaged by an operator for the construction,
repair or alteration of structures, facilities, utilities ••• located on
(or appurtenant to) the surface areas of any coal or other mine, and whose
employees work in a specifically demarcated area, separate from actual
mining or extraction activities." H.J. Res. 370, § 132, 95 Stat. 1199
(1981). We conclude that this provision has no bearing on the question
before us. The violation, the Secretary's citation of Old Dominion, the
hearing below, and the administrative law judge's decision all preceded
the enactment of the continuing resolution. "Resolution 370 did not
otherwise vitiate the force of the original authorization. Mine operators subject to the Act remained under the same substantive legal
obligations, the implementing standards and regulations promulgated under
the Act remained in force; and the statutory basis for enforcement
litigation remained in effect." Carolina Stalite Co., 734 F.2d at 1558.
See also Secretary on behalf of Cooley, 6 FMSHRC 516, 525 n. 3 (March 1984).
Also, "[w]hatever enforcement powers it took from MSHA were returned to
the agency when Res. 370 was superseded seven months later by a supplemental appropriations bill. H. R. 6685, § 204, 96 Stat. 180, 192 (1982)."
Carolina Stalite, 734 F.2d at 1557 n. 15.

6/

30 C.F.R. § 45.2(c) provides:
"Independent contractor" means any person, partnership,
corporation, subsidiary of a corporation, firm, association or other organization that contracts to perform
services or construction at a mine.

1893

Old Dominion's final challenge to the validity of the citation is that
the citation must be dismissed because it was not issued to Old Dominion
with "reasonable promptness" after the occurrence of the violation. As
previously set forth in note 3, although the violation occurred in
January 1980, a citation was not issued to Old Dominion until January
1981. Section 104(a) of the Mine Act requires that "[i)f ••• the
Secretary ••• believes that an operator ••• has violated this Act, or
any mandatory ••• 'standard, ••• he shall, with reasonable promptness,
issue a citation to the operator." 30 U.S.C, § 814(a), Old Dominion
asserts that the one-year delay before it was cited violates section
104(a)'s mandate, This argument ignores the effect of the last sentence
of section 104(a): "The requirement for the issuance of a citation with
reasonable promptness shall not be a jurisdictional prerequisite to the
enforcement of any provision of this Act." The Mine Act's legislative
history explains:
There may be occasions where a citation will be
delayed because of the complexity of issues
raised by the violations, because of a protract [ed] accident investigation, or for other
legitimate reasons. For this reason, section
[104(a)] provides that the issuance of a citation
with reasonable promptness is not a jurisdictional prerequisite to any enforcement action.
Legis • ..!!!!..!• at 618. The administrative law judge accurately described the
development of the case law concerning independent contractor liability and
the course of MSHA's rulemaking activities during the time of the events at
issue. See 44 Fed. Reg. at 44494. The legal issue posed here concededly is
novel. MOSt important, however, Old Dominion has not shown that it was
prejudiced by the delay. Indeed, Old Dominion was aware from the time of
its employee's fatal accident that an investigation involving its actions
was being conducted by MSHA, and it has been given a full and fair
opportunity to participate in all stages of this proceeding. Accordingly,
we affirm the judge's rejection of Old Dominion's argument that the
citation must be dismissed because of the delay in its ultimate issuance
to Old Dominion.
Old Dominion's final argument is that, even if it was cited properly for
the vidlation, no penalty for the violation should be assessed because the
employees' violative actions were beyond its control and could not have
been foreseen. In particular, Old Dominion argues that the judge's findings
concerning its negligence are not supported by the record. We reject Old
Dominion's argument that no penalty should be assessed. "[B]oth the text
and legislative history of section 110 [of the Mine Act] make clear that the
Secretary must propose a penalty assessment for each alleged violation and
that the Commission and its judges must assess some penalty for each violation found." Tazco, Inc., 3 FMSHRC 1895, 1897 (August 1981). We conclude,
however, that the record does not support the judge's findings concerning
Old Dominion's negljgence and that a penalty lower than that assessed by the
judge is appropriate.

1894

Section llO(i) of the Mine Act requires that in assessing civil penalties
the Commission "shall consider the operator's history of previous violations,
the appropriateness of such penalty to the size or the business of the operator charged, whether the operator was negligent, the effect on the operator's
ability to continue in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation." 30 U.S.C. § 820(i).
Only the judge's findings regarding negligence are at issue on review.
The MSHA inspector who issued the citation found that the violation
"could not have been known or predicted, or occurred due to circumstances
beyond the operator's control." The inspector further remarked that "the
employees were told the substation was energized before they left their
duty station." Exh. 3 (Inspector's Statement). Yet, the judge proceeded
to find the operator negligent. This finding was based primarily on two
conclusions he drew from the evidence: (1) Old Dominion failed to instruct
the employees properly before they were dispatched to the substation; and
(2) Old Dominion knew or should have known that the deceased employee "had
a proclivity for cutting corners •••• [and] disobeying safety regulations."
3 FMSHRC at 2743. We conclude that these findings are not supported by
substantial evidence of record.
The surviving employee, Lambert, testified that Old Dominion's meter
superintendent, Jack Carr, told him on the morning of January 22 that
Westmoreland's electrical foreman had informed Carr that he thought a light
was out in the substation's meter and that a transformer might be bad.
Lambert also testified that Carr told him that the substation had been
energized. Old Dominion's general manager testified that Harlow and
Lambert had been told before going to the substation that it was energized.
Thus, the record establishes that Harlow and Lambert were told specifically
that the substation was energized, the meter might not be functioning
properly, and a transformer might be bad.
· We have held previously, for purposes of considering the section llO(i)
penalty criteria, that when a rank-and-file employee's actions violate the Act,
"the operator's supervision, training and disciplining of its employees must
be examined to determine if the operator has taken reasonable steps to prevent
the rank-and-file miner's violative conduct." Southern Ohio Coal Co. 4 FMSHRC
at 1459, 1463-64 (August 1982) (emphasis in original); A.H. Smith Stone Co.,
5 FMSHRC 13, 15 (January 1983). The Secretary elicited no evidence that Old
Dominion's supervision, training or disciplining of its employees was inadequate.
Nor did he attempt to further demonstrate what Old Dominion should have done
to meet its duty of care. There is, for example, no testimony concerning Old
Dominion's customary procedures in such a situation or analogous procedures
in the industry. The MSHA inspector's testimony was restricted to the negligent actions of the employees themselves. Meter superintendent Carr neither
testified nor was deposed. The only testimony regarding Old Dominion's safety
procedures was given by Old Dominion's general manager who testified as to the
comprehensiveness of the company's program, the experience of Harlow and Lambert,
and the specific safety directive which prohibits Old Dominion employees from
working on energized, ungrounded high voltage wires. The judge seems to
have overlooked the evidence of record and simply inferred Old Dominion's
negligence from the fact of the violation. We hold that this was error

1895

and that substantial evidence of record does not support a finding that
the instructions of management, or lack thereof, contributed directly or
indirectly to the violation at issue. See Southern Ohio Coal Co.,
4 FMSHRC at 1465; Nacco Mining Co., 3 FMSHRC 848 (March 1981).
The judge's further finding that Old Dominion should have known Harlow
had a proclivity for unsafe acts also lacks adequate evidentiary support. The
judge based his finding upon events which occurred the day of the accident,
after Harlow had left management's direct supervision. The appropriate
question is whether management reasonably could have foreseen Harlow's negligent conduct. The record contains no evidence of past unsafe conduct by
Harlow or of a careless attitude on his part. In fact, the only evidence of
Harlow's conduct before the fatal accident suggests that Old Dominion had
reason to believe Harlow was concerned with safety. Old Dominion's general
manager described Harlow as a "very capable" and "safety conscious" employee,
who had missed only three safety meetings in the past 10 years. Tr. 66,
69...;.70. Lambert described him as "one of the most safety conscious men we had."
Tr. 91. We therefore conclude that substantial evidence does not support the
judge's finding that Old Dominion knew or should have known that Harlow would
act in an unsafe manner while engaged in the work which resulted in a fatal
accident.
Because, based on the above, we conclude that substantial evidence of
record does not support the judge's finding that Old Dominion was negligent,
we must modify the penalty assessed by the judge. Southern Ohio Coal Co.,
4 FMSHRC at 1465. Old Dominion has not contested the judge's findings that
it is a large operation; that payment of civil penalties under the Act will
not affect its ability to continue in business; that it has no history of
prior violations; that a good faith effort to achieve abatement was made;
and that the gravity of the violation was extremely serious. Given these
findings and our conclusion that negligence was not established, we find
that a penalty of $1,000 is appropriate and consistent with the Act.
Accordingly, we affirm the judge's conclusion that, on the facts of this
case, Old Dominion is an independent contractor and an ·operator within the
meaning of section 3(d) of the Mine Act, and was properly cited for the violation of 30 C.F.R. § 77.704. We vacate the judge's finding of negligence and
his assessment of a $3,000 penalty, and
ess a civil penal y of $1,000.

1896

Commissioner Lawson concurring and dissenting:
The Commission is in agreement that Old Dominion is an independent
contractor and an operator within the meaning of the Act. There is also
no dispute that Old Dominion violated the Act and that such violation
resulted in the death of miner James Harlow. However, as in Southern
Ohio Coal Co., 4 FMSHRC 1459 (August 1982) and U.S. Steel Corp., 6 FMSHRC
1423 (June 1984), I dissent from my colleagues' reduction of the penalty
imposed. Here, as there, the majority finds, without explanation,
" ••• that a penalty lower than that assessed by the judge is appropriate."
Going beyond even the generous dispensations granted the violative
operator in those cases, they have reduced by two-thirds the exceedingly
moderate penalty set by the judge below. And, once more, the majority
has failed to provide a reasoned analysis to support reducing the penalty
to $1000 for the miner killed as a consequence of this violation •

•

Old Dominion's employee was electrocuted because he concluded
erroneously that the substation was not energized. He reached this
conclusion because he looked for but did not see the barrel fuse disconnect that was customarily used when energizing substations. His
fellow miner, William Lambert, also looked and failed to observe the
anticipated disconnect. Because of this, they were unaware that the
substation was energized, since Westmoreland's electrical foreman had
installed a dif f·erent type fuse link when he energized the substation
the day before this fatality took place.
It is undisputed that Harlow
and Lambert were told at the time they were given their work assignment
that the Substation was energized. It is also undisputed that Old
Dominion had never energized a substation without the use of a barrel fuse.
However, Old Dominion did not energize this substation, Westmoreland did. '!:!
The testimony of Old Dominion's General Manager, H. E. Armsey, is
revealing:

Q.

Would you explain what the investigation revealed
that Mr. Harlow thought or saw when he looked at these?
A. Yes, sir. In our operation there is a barrel that
would fit between these two termination points that would
include a fuse link. And if there is no connection between
the upper terminal and the lower terminal, then it is thought
that the facility is de-energized and that there is an air
gap there. But during the investigation it would [sic]
found that there was a physical connection through the
utilization of a fuse link rather than the fuse barrel.

*

*

*

1/ These miners' confusion was understandably enhanced because the
transformer at the substation was the first of its type th~t Old Dominion
had purchased and installed.

1897

Q. And inside that would be a fuse, or a conductor
which contains little fuses down here?
A. Yes, sir.
Q. And they would be enclosed inside a barrel, like
that.
A. That is correct.
Q. And these barrels were all gone? There were none
there? There were just none there?
A. That is correct.
Q. But your investigation determined that just the
little wire which.normally is inside it had been wired
across?
A.
That is correct.
Q. So when Mr. Harlow looked up there, he didn't see
this •••• the barrel because it wasn't there and he didn't
see this but it was there?
A.
That is correct.
Tr. at 53-4

Q.
So the best that you can determine is, the cause of
Mr. Harlow's death is because he thought there was no energy
because this is missing?
A.
He was looking for a big barrel and he didn't see it and
didn't recognize the fact that there was a jumper across what
ordinarily would be a path used here. And he said that the
substation was de-energized, even though he had been told
before they left the storeroom that the substation was
energized.
Tr. at 61-2 (emphasis added).
The corporate negligence of Old Dominion is thus directly established
in this case because of its failure to ascertain the type of installation
at the assigned worksite before its employees were dispatched to "check
our equipment" (Tr. 82). This failure to instruct Harlow and Lambert as
to the equipment and conditions they would encounter resulted in the
death of miner Harlow, as the judge below found. As noted in my dissenting opinion in Southern Ohio Coal Co., "[w]hile one can perhaps conceive
of a case in which the only negligence could be that of the rank and
file miner, this is not that case." 4 FMSHRC at 1471 (emphasis in
original).
Old Dominion argues that the violative conduct of its employees was
unforeseeable and beyond its control. To the contrary, Old Dominion
failed to determine the type of fuse connection used by Westmoreland at
this mine site. Harlow and Lambert thus looked for and did not see the
barrel disconnect that Old Dominion had--without exception--installed in
all of its other substations, one with which they were familiar. It was
therefore certainly foreseeable that they would, as both did, assume that
this station was not energized. To find Old Dominion free of any negligence

1898

in this instance is thus to reward the same self~induced ignorance and
see-no-evil. approach to safety recently disavowed by the majority in
Roy Glenn, Agent of Climax Molybdenum Co., FMSHR9. Docket No. WEST 80158-M (July 17, 1984). As in that case, where my colleagues did not
dispute my enunciat.ion of management's statutoryotduty to maintain safe
and healthful working conditions, the exercise of, forethought is required
from those in positions of supervisory responsibility. This operator
failed to meet that responsibility, which does ne.t terminate merely because
the employee is out of sight. · Having failed tQ:iascertain before these
miners were dispatched to this substation to wor.ki on a 12,000 volt system
whether the fuse connection installed by Westmor:eland was of the standard
configuration with which its employees were famiJ.iar, Old Dominion
cannot now be permitted to escape the consequence of its negligent
inaction. The combination of supervisory and non-supervisory negligence
in this case proved disastrous.
i<;
My colleagues reject the bases for the judge's finding of negligence,
the only challenged aspect of the judge's analyses of the statutory
penalty assessment criteria set forth in sectionrllO(i) of the Act.
They then substantially reduce the penalty imposed. 2/ However, the
decision below does not suggest, much less state~ that any dollar,
percentage, or other numerical value is assignedeto the "negligence"
criteria. The judge's conclusion that the violation was extremely
serious, a gravity determination that is not dis~uted, would itself
support the judge's penalty assessment. Nevertheless, the majority does
not independently evaluate Old Dominion's negligence on the basis of
record evidence or cure what it views as deficieQcies in the judge's
opinion by itself assigning numerical or other objective indicia to the
penalty assessment factors. Rather, my colleagues' opinion is entirely
silent as to the dollar amounts to be assigned to; five of the section
llO(i) criteria, although it does not dispute the gravity of the violation-obviously maximum in view of the death of miner Harlow. No future guidance
is therefore furnished to mine operators or the Secretary. Conclusorily
glossing over the two-thirds penalty reduction falls far short of being
statutorily satisfactory or in accord with the Act.
The Act es.tablishes a standard of strict liability for violations .
thereof, i.e., rtO fault or. negligence is required to establish a violation.
Here, however, it is unquestionable that there was a violation of the Act,
and both supervisory as well as non-supervisory miner negligence. It is
a truism that a corporation can only act through:_.its employees, and nowhere
in the Act, the legislative history, or our preeedents is there any suggestion that operator negligence is to be disregard~d i f attributable in part
to a non-supervisory miner. To artificially allocate penalty dollars
between an operator and its employee miners provi-des a ready avenue for
an operator to escape penalties and their intended deterrent effect. The
operator which structures its operation to avoid~supervisory responsibility
will now be rewarded. Neither the resulting redaced penalty nor this denied
supervision is in accord.with the intent of the Act and with the mandatory
penalty assessment processes required by the Act~
2/ The majority in this case goes out of its way to reduce the penalty set
by the judge below, notwithstanding the fact that the operator's petition
for review presented only the contention that no penalty should have been ·· assessed, a contention clearly without merit under this Act. Section llO(a).
Indeed, counsel for Old Dominion on oral argument made no mention of the
penalty imposed.

1899

Providing a means for the avoidance or drastic reduction of penalties
undercuts compliance by weakening the strict liability and stringent penalty
scheme established by the Mine Act. The majority's importing of a tort
standard of liability into the penalty sections of the Act, with all its
concomitant complexities, is to graft on to our statute concepts never
envisioned by its drafters. Although my conclusion regarding Old Dominion's
negligence in this matter is based on considerations somewhat different
than those utilized by the judge, the result is the same. For the
reasons set forth· above, and as the judge below found, the majority's
assertion that substantial evidence does not support a finding that the
directions of management, or lack thereof, contributed to the violation
at issue, is thus in error. 11
The penalty assessed by the judge, based in major part on the high
gravity of the violation, is in accord with the congressional intent
expressed in the Mine Act's legislative history. Legis. Hist. at 603,
628-30. As the Senate Committee Report notes:
In short, the purpose of a civil penalty is to induce
those officials responsible for the operation of a mine
to comply with the Act and its standards.

*

*

*

In overseeing the enforcement of the Coal Act the
Committee has found that civil penalty assessments
are generally too low, and when combined with the
difficulties being encountered in collection of
assessed penalties ••• the effect of the current
enforcement is to eliminate to a considerable extent
the inducement to comply with the Act or the standards,
which was the intention of the civil penalty system.
S. Rep. No. 95-181, Legis. Hist. at 629 (emphasis added).

3/ Overturning substantial evidence has been unsuccessfully attempted by
this Commission before, to its subsequent embarrassment. As the Court of
Appeals for the District of Columbia Circuit stated:
[T]he Commission is statutorily bound to uphold an ALJ's
factual determinations that are supported by substantial
evidence.
Donovan v. Phelps Dodge Corp., 709 F.2d 86, 90 (D.C. Cir. 1984), see
Nacco Mining Co., 3 FMSHRC 848 (April 1981).

1900

The Commission has stated,
The determination of the amount of the penalty that
should be assessed for a particular violation is an
exercise of discretion by the trier of fact. Cf. Long
Manufacturing Co. v. OSHRC, supra, 554 F.2d [903] at
908 [8th Cir. 1977]. This discretion is bounded by
proper consideration of the statutory criteria and the
deterrent purpose underlying the Act's. penalty assessment scheme.
Sellersburg Stone Co., 5 FMSHRC 287, 294 (March 1983), aff'd, 736 F.2d
1147 (7th Cir. 1984). As in Sellersburg,
Although the penalties assessed by the judge far exceed
those proposed by the Secretary before hearing, based on
the facts developed in the adjudicative record [I] cannot
say that the penalties assessed are inconsistent with the
statutory criteria and the deterrent purpose behind the
Act's provision for penalties. Hence, [I] find that the
judge's penalty assessments do not constitute an abuse of
discretion.
Id. at 295, quoted in part, 736 F.2d at 1153.
I therefore dissent to the reduction of the penalties imposed.

A. E. Lawson, Commissioner

1901

Collyer, Chairman, dissenting:
My colleagues and I agree that the fatal accident which led
to this litigation occurred at the site of a mine. Therefore,
regulations of the Mine Safety and Health Administration of the
Department of Labor properly cover all activities at the Elro
substation. While amicus curiae Edison Electric Institute has
raised very serious questions about application of MSHA standards to high voltage power lines, such questions must be resolved in the first instance between the industry and the Department.
However, my colleagues also decide today that a power company's metering of electrical usage by a mine is sufficient to
turn the power company itself into an operator under the Mine
Act. By the adoption of this decision, the majority implicitly
holds that every vendor who approaches mine property is a mine
operator subject to all of the requirements of the Act. This, I
am sure, will be news to all public utilities, to other mine
vendors - and to the Congress of the United States. I dissent.
My colleagues have glossed over the facts of Old Dominion's
relationship with Westmoreland because those facts hamper the
ease with which they reach their result. However, on the facts
contained in this record, I conclude that Old Dominion acted as
a vendor of electricity, not a provider of services at the Elro
substation. The contrary decision of the majority is reached on
the basis of conjecture and a stretching of the record testimony
with which I cannot agree.
The facts are undisputed. Westmoreland Coal Company leased
part of its land holdings to Elro Coal Company to mine coal at a
new mine. The mined coal was to be sold by Elro to Westmoreland.
In preparation for the new mine, Elro contracted with the Vanderpool
Electric Corporation to build transmission lines from Old Dominion's
high power lines to Westmoreland property where a substation
could be built. Old Dominion had nothing to do with building
the transmission lines to the substation. Westmoreland then
built the Elro substation to reduce the incoming power to the
proper voltage for use in the mine. The reduction in power was
accomplished by large transformers. Old Dominion had nothing to
do with the ownership or construction of the substation. In
December 1979, when the substation was completed, Old Dominion
installed metering equipment - and only metering equipment - at
the substation for its billing purposes, so that it could measure the amount of electricity used by Westmoreland and Elro.
The metering equipment required five smaller transformers to

1902

reduce the power to a measurable.level.· Thereafter, Old Dominion would only visit the substation to read the meter on a
monthly basis. The substation had been energized for one day at
the time of the accident, which occurred when Old Dominion employees came to the site to check the operation of the meter.
On these bare facts, the majority erroneously concludes that
Old Dominion was providing the requisite services under Section
3(d) of the.Mine Act to transform the public utility into a mine
operator.

I cannot agree that Old Dominion was "providing services"
for Westmoreland or Elro at this substation. The power company
metered electricity usage for its own billing purposes, not for
any purposes of the production operators. All the ownership,
construction, maintenance, operation and repair of the substation were solely under Westmoreland's control. Old Dominion
installed its meter not to "provide services" to the mine, but
solely in order to measure the quantity of electricity that it,
as a vendor, sold to the mine.
The majority opinion skips over these crucial distinctions
by concluding:
The services or work to be rendered by Old Dominion included
examination of an electrical facility providing power to the
mine and the performance of any necessary repairs, services
essential to the mine's operation. Old Dominion's assistance to Westmoreland in installing, maintaining, repairing,
and replacing electrical equipment had been rendered in the
past, was being rendered at the time of the events at issue,
and could be anticipated in the future.
Dec. at 7. The totality of evidence relating to the "examination" of this substation by Old Dominion does not support the
majority's conclusion and, in fact, underscores that Old Dominion's sole interest at the substation was in its own metering
~quipment.

Q.
Would [a meter reader on the monthly visit] perform any
inspection or services over the other five articles?
A.
Only visual and only by probably a meter reader that is
not a meter man. He might check the general appearance of the
equipment to see if there was anything that he saw that was out
of line or might need attention.
Tr. 36 (emphasis in original). My colleagues turn this limited
testimony about a visual inspection of "five articles" into a
service performed for Westmoreland. This is not an accurate
reading of the record. As prior testimony makes clear, the

1903

"five articles" referred to in the question were the small transformers installed by Old Dominion so that electricity could pass
through the meter without damage to the meter. Any "examination" that would occur would be only a visual check of Old
Dominion's own equipment, used exclusively to meter the mine's
use of electricity. Such an "examination" would not provide any
service to the mine operator, but only to the vendor.
Uncontradicted testimony consistently limited the power
company's role at the Elro substation to its metering equipment.
Old Dominion General Manager H. E. Armsey testified that Old
Dominion would not be involved in repair and restoration of
power at the substation after an industrial accident or weather
damage unless there were a problem involving the metering equipment. If the Elro mine lost power, Elro would call Westmoreland
because Westmoreland has the inhouse expertise. While Armsey
agreed that if Westmoreland had questions itself, it would be
"logical" for it to call Old Dominion, that was because "if the
meter doesn't ·run, we don't sell electricity." Tr. 38. I cannot agree with the apparent conclusion of my colleagues that an
unspecified occasion of major difficulty with the substation at
some time in the future, which may lead Westmoreland to seek
advice from Old Dominion, and which advice the power company may
provide in order to continue to sell electricity, is sufficient
provision of services to turn Old Dominion into a mine operator.
The limited involvement of Old Dominion with the Elro
substation was clearly explained in uncontradicted testimony by
General Manager Armsey:

Q.

And at this substation what facilities or what properties did Old Dominion have there?

A.

Our only facilities were the metering equipment which
measures the energy that would be used at this location.

*

*

*

Q.

Who has the responsibility to maintain this substation
and the transmission lines in and lines out?

A.

Someone other than Old Dominion Power Company. We
weren't involved with the transmission line and substation.

Tr. 27. This degree of presence by Old Dominion at the substation would be less than that of a service representative from
Xerox Corporation, who would install, maintain, repair and replace defective dry copier equipment in the mine office used for

1904
.... , .••;,•.-..... rli?...:".

mine plans, shift assignments and the like. By its decision,
and the expansive terms it adopts, the majority has declared
that Xerox is also a mine operator. I cannot believe that Congress intended this result.
To the contrary, Congress clearly excepted vendors such as
Old Dominion from the reach of the definition of "operator." As
even the Secretary of Labor recognized throughout most of the
tortuous history of his independent contractor regulations,
Congress intended that the only mine contractors who could be ·
held liable as operators were those having some continuing
presence at a mine site. In the Supplementary Information
accompanying MSHA 1 s initial independent contractor proposed
rule, the Secretary specifically noted that:
Congress' intention that the Act be enforced against independent contractors that have a continuing presence at a
mine is explicitly stated in the legislative history. The
Conference Report provides that inclusion of independent
contractors in the definition of operator was intended to
permit enforcement of the Act against independent contractors "who may have a continuing presence at the mine." S.
Rep. No. 9S-461, 95th Cong., 1st Sess. 37 (1977).
44 Fed. Reg. 47746, 47748 (Aug. 14, 1978) (emphasis added). As
the Secretary additionally recognized, limiting the statutory
term "operator" to those independent contractors who have a
significant degree of involvement in mine operations is also
c.onsistent with judicial constructions of the Mine Act. For
example, the Third Circuit has pointed out:
The reference made in the statute only to independent contractors who "perform services or construction" may be understood as indicating, however, that not all independ
ent contractors are to be considered operators. There may
be a point, at least, at which an independent contractor's
contact with a mine is so infrequent or de minimis that it
would be difficult to conclude that services were being
performed. Such a reading of the statute is given color by
the fact that other persons deemed operators must "operate [], control[], or supervise[]" a mine. Designation of
such other persons as operators thus requires substantial
participation in the running of the mine; the statutory text
may be taken to suggest that a similar degree of involvement
in mining activities is required of independent contractors
before they are designated operators.
National Industrial Sand Association v. Marshall, 601 F.2d 689,
701 (1977) (emphasis added). See also, Association of Bituminous Contractors, Inc. v. Andrus, 581 F.2d 853, 861-862 (D.C.
Cir. 1978); Bituminous Coal Operators Association v. Secretary
of the Interior, 547 F.2d 240, 246-247 (4th Cir. 1977).

1905

In his final rule, however, the Secretary appears to have
abandoned the requirement that an independent contractor have a
continuing presence at a mine in order to be considered an operator. In the preamble to the final rule, the Secretary stated
that "as a general rule, MSHA will issue citations . . . to
independent contractors for violations . . . committed by them
and their employees." 45 Fed. Reg. 44494 (July 1, 1980). In
support of this broad statement, the Secretary said that "MSHA
has concluded that a regulation that would distinguish some contractors from others in formulating a comprehensive enforcement
scheme could, at this time, be overly complex, imprecise and
lead to arbitrary decisions . . . . " 45 Fed. Reg. at 44495. To
the extent that the final rule is not reconciled by the Department of Labor and this Commission with the express Congressional
intention that only those contractors with a "continuing presence" at a mine site be considered operators, it reflects an
erroneous and over-reaching reading of the Act.
Whatever the merit to the Secretary's decision that it would
be less complex and, thus, more administratively convenient to
consider all independent contractors as operators, that convenience cannot legally override Congress' express distinction
between those contractors who can be cited as operators ( contractors "providing services or construction" with a "continuing
presence") and those who cannot (all others).
By its definition of services ("an act done for the benefit
or at the command of another"), the majority includes the apocryphal Coca Cola man coming onto mine property to refill the
Coke machine in the office. While I was once confident that the
majority would, if asked directly, agree that the Coca Cola
Company and the Xerox Corporation are merely vendors, not mine
operators, the majority decision fails to provide any basis for
such a distinction and; in fact, negates the Congressional directive. In order to include this power company within the
statutory definition, the majority has had to stretch the definition so far that it will now encompass every vendor approaching mine property.
I would hold that the Secretary erroneously cited a nonoperator and would vacate the citation and penalty. I dissent
from the majority's failure to do so.

R0SEMARYM:COLLYER,CHARMAN

1906

Distribution
Stephen C. Yohay, Esq.
Barbara L. Neilson, Esq.
McGuiness & Williams
1015 .15th St., N.W.
Washington, D.C. 20005
Anna Wolgast, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
William D. Lambert, Esq.
Ogden, Robertson & Marshall
1200 One Riverfront Plaza
Louisville, Kentucky 40202

.l.907

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

August 30, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. LAKE 82-35-M
LAKE 82-6-RM

v.
UNITED STATES STEEL CORPORATION
DECISION

This consolidated proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), involves the
interpretation and application of 30 C.F.R. § 55.15-5, a mandatory
personal protection standard. !/ The Commission's administrative law
Judge concluded that U.S. Steel Corporation ("U.S. Steel") violated the
standard and assessed a civil penalty. 4 FMSHRC 1104 (June 1982)(ALJ).
For the reasons that follow, we affirm the judge in part and reverse and
remand in part.
The events at issue in this proceeding occurred at U.S. Steel's
Minntac Mine iron ore preparation plant in Mountain Iron, Minnesota. At
this plant U.S. Steel produces taconite pellets, a high grade iron ore
concentrate used in making steel. After iron ore concentrate is formed
into marble-sized taconite pellets during the agglomeration phase of the
preparation process, the pellets are discharged into a cooler. A cooler
is a large doughnut-shaped installation, about 56 feet in diameter,
where the hot taconite pellets are cooled on a circular conveyor consisting of a series of metal grates, called pallets. Each pallet is
about 8 feet long and widens from about 5 feet at its inner end near the
center of the cooler to just under 7 feet at its outer end.
When the cooling ~ycle is almost complete a pallet pivots open to
an upright position and tips the cooled pellets into a storage bin 18
feet below the pallet. There is only one opening to the storage bin, so
each pallet pivots open in turn when it is in position over the opening.
When a pallet is in the open position it creates two openings on either
side.of its axis, one of which is large enough for a person to fall
through. There is an entrance into the cooler located about 4 to 4-1/2
feet above the pallet conveyor.floor in the vicinity of the opening to
the storage bin.

!/

30 C.F.R. § 55.15-5 provides:
Mandatory. Safety belts and lines shall be worn when men work
where there is a danger of falling; a second person shall tend the
lifeline when bins, tanks, or other dangerous areas are entered.

1908

On September 10, 1981, during a regular inspection of the preparation plant, an inspector of the Department of Labor's Mine Safety and
Health Administration ("MSHA") observed a maintenance foreman, who was
not wearing a safety line, climbing out of a cooler after performing a
repair. While exiting, the foreman was in the immediate vicinity of the
opening to the storage bin. The cooler was not operating at the time.
During the repair work, a pallet was in the upright position over the
storage bin. Plywood panels had been placed over the openings created
by the raised pallet. Before climbing out of the cooler, the forE;!man
handed up the plywood panels.
After investigating the situation, the inspector concluded that
there was a danger of falling 18 feet to the storage bin through the
large opening created by the raised pallet, and that the foreman's
failure to wear a safety line was in violation of 30 C.F.R. § 55.15-5.
The inspector also found that the violation was significant and substantial and caused by the operator's "unwarrantable failure" to comply
with the standard, and he cited the violation in a withdrawal order
issued pursuant to section 104(d)(2) of the Mine Act. 30 u.s.c.
§ 814(d)(2). 2/

J:../

Section 104(d) of the Mine Act provides:
(1) If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has
been a violation of any mandatory health or safety standard, and if
he also finds that, while the conditions created by such violation
do not cause imminent danger, such violation is of such nature as
could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard, and if he
finds such violation to be caused by an unwarrantable failure of
such operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation given to
the operator under this ·Act. If, during the same inspection or any
subsequent inspection of such mine within 90 days after the issuance
of such citation, an authorized representative of the Secretary
finds another violation of any mandatory health or safety standard
and finds such violation to be also caused by an unwarrantable
~ailure of such operator to so comply, he shall forthwith issue an
order requiring the operator to cause all persons in the area
affected by such violation ••• to be withdrawn from, and to be
prohibited from entering, such area until an authorized representative of the Secretary determines that such violation has been
abated.
(2) If a withdrawal order with respect to any area in a coal
or other mine has been issued pursuant to paragraph (1), a withdrawal order shall promptly be issued by an authorized representative
of the Secretary who finds upon any subsequent inspection the
\
existence in such mine of violations similar to those that resulted
in the issuance of the withdrawal order under paragraph (1) until
such time as an inspection of such mine discloses no similar violations.
Following an inspection of such mine which discloses no similar
violations, the provisions of paragraph (1) shall again be applicable
to that mine.

30 u.s.c. § 814(d)(l) & (2).

1909

U.S. Steel filed a notice of contest of the order, and the Secretary
of Labor filed a petition for the assessment of a civil penalty. At the
consolidated hearing before the Connnission's administrative law judge,
U.S. Steel argued that the standard was too vague to be enforced. In
his decision the judge disagreed. ·He concluded that the standard's
phrase, "danger of falling," did not extend to de minimis situations,
i.e., possible falls of only a few inches or feet, and was sufficient to
apprise "reasonably prudent operators" when safety belts are to be worn.
4 FMSHRC at 1109.· Finding that an "ordinary working person" would have
recognized a danger of falling through the large opening created by the
raised pallet in the cooler, the judge concluded that, on the facts
present in the case, the foreman's exit from the cooler amounted to a
violation of section 55.15-5. 4 FMSHRC at 1109-10.
The judge also concluded that the inspector had issued a valid
withdrawal order under section ·104(d)(2) of the Mine Act. The judge
held that to sustain a section 104(d)(2) withdrawal order, the Secretary
of Labor has the burden of proving the absence of an intervening clean
inspection of the entire mine and that the violation was caused by an
unwarrantable failure to comply with a mandatory standard. The judge
relied on CF&I Steel Corporation, 2 FMSHRC 3459 (December 1980), in
which we approved an identical allocation of evidentiary burdens under
the analogous provisions of the Federal Coal Mine Health and Safety Act
of 1969, 30 U.S.C. § 801 et~· (1976)(amended 1977). Although acknowledging that the evidence was "skimpy" and "possibly conflicting," the
judge held that the Secretary had made out a prima facie case establishing the absence of an intervening clean inspection. 4 FMSHRC at
1107-09.
Finally, relying on the definition of unwarrantable failure
announced under the 1969 Coal Act by the Department of the Interior's
Board of Mine Operations Appeals in Zeigler Coal Company, 7 IBMA 280
(1977), the judge held that the violation was unwarrantable because it
was connnitted by a foreman, a representative of management, who "should
have known of the hazard and should have taken steps to avoid it." 4
FMSHRC at 1110.
We turn first to U.S. Steel's challenge that the standard is too
vague.to be enforced. The standard's requirement that safety belts and
lines shall be worn by miners where there is a danger of falling is the
kind of regulatory mandate "made simple and brief in order to be broadly
adaptable to myriad circumstances." Kerr-McGee Corp., 3 FMSHRC 2496,
2497 (November 1981). We have held previously that application of such
a broad standard to particular factual contexts does not offend due
process if the operator's allegedly violative conduct is judged with
y
reference to the objective test of what actions would have been taken
under the same circumstances by a reasonably prudent person familiar
with the mining industry, relevant facts, and protective purpose of the
standard. U.S. Steel Corp., 5 FMSHRC 3, 5 (January 1983); Alabama
By-Products, 4 FMSHRC 2128, 2129 (December' 1982). Subsequent to the
granting of review in this case, we applied this construction to the

1910

identical personal protection standard dealing with safety lines contained at 30 C.F.R. § 57.15-5. Great Western Electric Company, 5 FMSHRC
840, 841-42 (May 1983). U.S. Steel has presented no arguments that
would lead us to reconsider that holding. The judge's application of
the standard in this case, while differing in some minor respects from
the Great Western formulation, was sufficiently similar to our approach
in that case to pass muster on review. We therefore reject U.S. Steel's
vagueness challenge.
U.S. Steel's petition for discretionary review frames the issue
with respect to the judge's conclusion of a violation only in terms of a
generalized vagueness challenge. Nevertheless, the operator's brief
contains some discussion that can be read as a challenge to the judge's
specific findings that U.S. Steel violated the standard. ·We must
emphasize the procedural bar against a party attempting in its brief to
enlarge upon the issues raised in its petition for discretionary review.
See 30 U.S.C. § 823(d)(2)(A)(iii)&(B); Commission Procedural Rules 70(f)
& 71, 29 C.F.R. §§ 2700.70(f) & 71. We wish to make clear, however,
that the judge's findings are supported by substantial evidence.
There was no dispute that the foreman, when climbing out of the
cooler, did not wear a safety belt. The judge evaluated the foreman's
testimony describing his exit from the cooler, and concluded that a
danger of falling should have been recognized under the circumstances.
4 FMSHRC at 1109-10. The exit from the cooler was at least four feet
above the pallet conveyor floor. The foreman testified that he pulled
himself out by grabbing a gate bar located at the exit while bracing his
knee against the cooler wall for balance. As noted above, the foreman
had already handed up the plywood panels used to cover the openings over
the storage bin and his exit was performed in the immediate vicinity of
the openings. An 18-foot drop would have occurred if the foreman had
fallen through the large opening over the storage bin. We conclude that
substantial evidence, evaluated in the light of our Great Western Electric
test, supports the judge's conclusion that U.S. Steel.violated the
standard.
We next examine the judge's findings concerning the validity of the
section 104(d)(2) withdrawal order. The plain language of section
104(d)(2) of the Mine Act (n. 2 supra) establishes three general prerequisites for the issuance of an initial section 104(d)(2) withdrawal
order: (1) a valid underlying section 104(d)(l) withdrawal order; (2) a
violation of a mandatory safety or health standard "similar to [the
violation] that resulted in the issuance of the withdrawal order under
[section 104(d)(l)];" and (3) the absence of an intervening "inspection
of such mine disclos[ing] no similar violations."

1911

Our resolution of the issue raised in this case turns on the third
element -- the intervening clean inspection. Recently, we reaffirmed
the rationale of CF&I, supra, and extended the prior consistent interpretation of "clean inspection" under the 1969 Coal Act to the 1977 Mine
Act. Kitt Energy Corp., 6 FMSHRC 1596, 1598-1601 (July 1984), petition
for review filed sub nom. United Mine Workers of America v. FMSHRC, No.
84-1428 (D.C. Cir. August 17, 1984). We held in Kitt Energy that to
establish the validity of a section 104(d)(2) withdrawal order under the
1977 Mine Act, the Secretary of Labor must prove the absence of an
intervening clean inspection of the entire mine. We further held that
such an intervening clean inspection is not limited solely to a complete
regularly scheduled inspection, but may be composed of a combination of
inspections, so long as taken together they constitute an inspection of
the mine in its entirety. Thus, the judge appropriately relied on CF&I
in addressing the clean inspection issue raised here. We conclude,
however, that substantial evidence does not support the judge's factual
finding that the Secretary established the absence of an intervening
clean inspection. The entire testimony on the issue is limited and we
quote it in full.
Initially, on direct examination the inspector testified:

Q.

[By counsel for the Secretary] Now, when you
decided to issue your particular 104(d)[(2)]
••• order, were you aware that there was a
prior 104(d)(l) order in effect at the Minntac
plant?

A.

Yes, I issued it.

Q.

You said you were the inspector who issued
the prior 104(d)(l) order?

A.

I was.

Q.

Could you tell us what standard was cited in
the prior 104(d)(l) order?

A.

That was also a 15-5 safety belt standard.

Q.

Now, when you decided to issue the--the
104(d)(2) order, did you know whether there
was a prior intervening clean inspection that
had taken place since your issuance of the
104(d)(l) order?

A.

There was not no clean inspection, no.

1912

Q.

And how do you know that?

A.

Cuz I was the inspector.
one.

I issued the last

Tr. 27-28 (emphasis added).
In response to questions on cross-examination, the.inspector also
testified:

Q.

[By counsel for U.S. Steel] Okay. Now
did you inspect Minntac operations
between March 3rd, 1981 -- March 31, 1981
and September 10th, 1981?

A.

Oh, sure.

Q.

Were you there everyday?

A.

No, not every day.

Q.

Were you there regularly?

A.

Just about.

Q.

And did you cover the entire facility?

A.

Um, I have covered the entire facility, yes.

Q.

The entire Minntac plant?

A.

The entire I.D. No. 820, yes.
refers to the Minntac plant.]

Q.

So between March 3rd, 1981 -- March 31, 1981,
and September 10, 1981, you had been entirely
through the Minntac Plant?

A.

Are you talking about a complete thorough
inspection?

Q.

I'm asking you if you went to every area in the
Minntac Plant between March 31st, 1981, and
September 10th, 1981.

A.

This was a different inspection on -- in March.
That one was completed.

Q.

Between

A.

Then we started another inspection.

1913

[I.D. No. 820

Q.

But between March 31st, 1981, and September 10th,
. 1981, you had gone through the entire Minntac plant?

A.

Well, that's possible I went through there.

Tr. 53-54 (emphasis added).
As noted, these exchanges represent the entire testimony.concerning
intervening. clean. inspection. The judge quoted these exchanges and
acknowledged the "skimpy" and "possibly conflicting" nature of the
testimony. The judge provided no analysis of this evidence and concluded, "[B]ased on the above testimony, ••• MSHA established prima facie
that there was not an intervening clean inspection between the section
[104](d)(l) and (d)(2) orders. U.S. Steel did not offer any evidence to
rebut the prima.facie showing." 4 FMSHRC at 1109. We respectfully
disagree.
During direct examination, the inspector appeared to give clear
testimony that "There was not no clean inspection, no." Tr. 28. Presumably, however, the inspector's view of.what constitutes a clean
inspection agrees with that argued by the Secretary: that only a
regular quarterly inspection without similar violations lifts the section
104(d) chain. Our presumption is strengthened by the inspector's
testimony on cross-examination, when he tried to distinguish regular
inspections he had conducted between March 31 and September 10, 1981.
As noted above, we have held that any combination of regular or other
inspections that covers the entire mine can constitute an intervening
clean inspection. The inspector testified that he was at the Minntac
Mine regularly and that between March 31 and September 10, 1981, "I have
covered the entire facility, yes.
The entire I.D. No. 820, yes."
Tr. 53-54. The inspector's final word on the subject only compounded
the confusion between his initial testimony and his later testimony:
"Well, that's possible I went through there." Tr. 54.
Precisely the same kind of concession of a "possible" intervening
clean inspection composed of a series of spot inspections covering the
entire mine led the Commission in CF&I to conclude that a prima facie
case of the absence of an intervening clean inspection had not been
established. 2 FMSHRC at 3460-61. We also are mindful that the judge
himself characterized the inspector's testimony in this proceeding as
"skimpy" and "possibly conflicting." Our responsibility on review is to
examine the entire record, and the totality of the inspector's testimony
on direct examination and cross-examination is entirely too vague and
uncertain to establish a prima facie case of the absence of an intervening clean inspection. We cannot treat this contradictory evidence as
affording substantial evidentiary support to the judge's finding that
there was an absence of an intervening clean inspection. Accordingly,
because a prerequisite to issuance of a valid section 104(d)(2) withdrawal order is lacking, we vacate the order.

1914

However, allegations of violation and any section 104(d) special
findings associated with the violation survive the vacation of orders in
which they are contained. Consolidation Coal Co., 4 FMSHRC 1791, 179397 (October 1982); Island Creek Coal Co., 2 FMSHRC 279, 280 (February
1980). In Consolidation Coal, supra, we vacated a procedurally defective
section 104(d)(l) withdrawal order that contained special findings that
the violation was significant and substantial and caused by an unwarrantable failure to comply. We held that an absolute vacation of the
order and dismissal would allow a serious violation to fall outside the
statutory sanction expressly designed for it--the section 104(d) sequence
of citations and orders. 4 FMSHRC at 1793-94. Thus, under the circumstances present in that case, we affirmed the judge's modification of
the defective order to a section 104(d)(l) citation. 4 FMSHRC at 179397. In a related vein, we have also held recently that special findings
may be included in a citation issued pursuant to section 104(a) of the
Mine Act. Consolidation Coal Co., 6 FMSHRC 189, 191-92 (February 1984).
In this case, the inspector cited the violation as being significant
and substantial and caused by an unwarrantable failure to comply. The
requisite special findings therefore are present to support a possible
modification of the section 104(d)(2) order to the appropriate section
104(d)(l) order or citation. Because the section 104(d)(2) order cannot
stand, we remand to the judge to determine the appropriate modification. 1/
The final issue in this case is whether the judge erred in concluding that the violation was caused by the unwarrantable failure of
the operator to comply with the standard. As just noted, this finding
bears on the appropriate modification. The judge summarily concluded,
"The violation was committed by a foreman, a representative of management. He should have known of the hazard and should have taken steps to
avoid it." 4 FMSHRC at 1110. U.S. Steel contends that the judge
3/
We note that for a section 104(d)(l) withdrawal order to issue
validly, the violation must have been caused by an unwarrantable failure
to comply with the standard, and the order must have, been issued within .it
the same inspection or any subsequent inspection within 90 days after ~
the issuance of the original 104(d)(l) citation. If this violation did
occur within the 90-day limit, then it may be cited within a section
104(d)(l) order if it also occurred as a result of the unwarrantable
failure of the operator to comply with the standard--the final issue
discussed below in this decision. If, however, the violation occurred
outside the 90-day period, the invalid order could still possibly be
modified to a section 104(d)(l) citation if the violation was both
significant and substantial and unwarrantable. (If the judge needs to
decide whether the violation here was significant and substantial, he
shall afford the parties the opportunity to submit additional argument
on the subject, if they desire.) If on remand, the judge determines
that modification to a section 104(d)(l) order or citation is not
possible then the violation should be reduced to a section 104(a)
citation.

I

1915

improperly applied a per ~ rule that merely because the foreman was a
representative of management his violative conduct constituted an
unwarrantable failure to comply. We find the judge's conclusion on this
issue to be insufficiently explained. Consequently, we are unable to
exercise meaningful review.as to whether the conclusion is legally
proper and supported by substantial evidence. See The Anaconda Company,
3 FMSHRC 299, 299-302 (February 1981). Accordingly, we remand this
question to the judge. In the interests of procedural fairness, the
judge should allow the parties to reargue their positions concerning
unwarrantability, if they desire. After considering any such argument,
the judge should articulate fully the reasons for his ruling on this
issue.
Accordingly, we affirm the judge's conclusion that U.S. Steel violated section 55.15-5. Because we reverse his finding concerning the
absence of an intervening clean inspection, we vacate the section
104(d)(2) withdrawal order and remand for proper modification of the
order as discussed above. We also remand for reconsideration of the
issue of unwarrantabie failure and, if necessary, the question of
whether the violation was significant and substantial (see n. 3,
supra) • !±_/
--

4/
The Secretary also argues that U.S. Steel violated Commission
Procedural Rules 20(c) and 28, 29 C.F.R. §§ 2700.20(c) & .28, by not
specifically pleading its reliance on the issue of the intervening clean
inspection, a~d that the judg~ erred in excusing that failure. The
issue of the absence of an intervening clean inspection was part of the
Secretary's prima facie case. The Secretary was required to prove all
those elements of the prima f acie case that had not been admitted or ·
waived. In this instance, U.S. Steel generally denied "all other
allegations of fact and law" in its answer, and did not concede the
absence of an intervening clean inspection. Moreover, it would have
been permissible for the judge to allow liberal amendment to the
pleadings by U.S. Steel at the hearing. Cf. Fed. R. Civ. P. 15(b).
Under these circumstances, the judge properly proceeded to rule on the
merits of the intervening clean inspection issue.

1916

Commissioner Lawson dissenting in part:
The judge's conclusion that U. S. Steel violated section 55.15-5 is
clearly correct, supported by substantial evidence, and was challenged
by this operator only in terms of a generalized vagueness assertion, as
the majority acknowledges. My colleagues, however, have chosen to discount
the substantial evidence found by the judge below to have established that
MSHA did not carry out a complete (clean) inspection of this mine during
the applicable period. Finding of Fact 7; Conclusion of Law 3.
The decision below has been found wanting by the majority because
the judge "summarily concluded" that this violation was caused by the
unwarrantable failure of the operator to comply with the standard, and
his conclusion was "insufficiently explained." As they note, "we are
unable to exercise meaningful review as to whether the conclusion is
legally proper and supported by substantial evidence ••• Accordingly, we
remand this question to the judge." Slip op. at 9 (citation omitted).
However, a different standard of review is applied to the "clean
inspection" question. The majority here, too, finds that "the judge
provided no analysis of this [intervening clean inspection] evidence."
Slip op. at 7. Although I would not disagree that the judge's ruling
would be significantly more satisfactory had it included an expanded
explanation for its bases, I am not prepared so readily to overturn his
clear holding that MSHA "established prima facie that there was not an
intervening clean inspection," 4 FMSHRC at 1109, and, as the majority
acknowledges, "U.S. Steel did not offer any evidence to rebut the prima
facie showing." Id.
·
As the judge acknowledged, the testimony below was "skimpy" and
"possibly conflicting." The judge, performing his fact-finding duty,
resolved that conflict. His reasons may have included an evaluation of
the witness' demeanor, evidence that MSHA inspector Wasley had a continuous
presence at this mine, and, of most significance, his clear testimony
that: "There was not no clean inspection, no." Slip op. at 5, Tr. 2728. 1/ (Emphasis added). The Commission should be loath to overturn
the judge's determination and substitute a differing view of the facts
absent any rationale other than disagreement with the fact-finder's
resolution of the conflicting evidence and speculation regarding its
meaning (see note 1, supra).
My colleagues' failure to remand this issue for necessary clarification is thus internally inconsistent. In lieu of affirmation of the
judge on this issue, which would appear to me supportable on this record,
I would remand for clarification on this issue as well. See The Anaconda
Company, 3 FMSHRC 299 (1981). Whatever may transpire in the future in
this case will be better accomplished with such judicial clarification.

A. E. Lawson, Connnissioner
1/ The majority's assertion that, "Presumably ••• the inspector's view
of what constitutes a clean inspection agrees with that argued by the
Secretary ••• ," slip op. at 7, lacks record support and is mere speculation.

1917

Distribution
Louise Q. Symons
United States Steel Corporation
600 Grant Street, Room 1580
Pittsburgh, PA ·15230
Clifford Kesanen, Safety Chairman
United Mine Workers of America
Local 1938
307 First Street North
Vi.rginia, Minnesota 55792
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge James Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church; Virginia 22041

1918

ADMINISTRATIVE LAW JUDGE DECISIONS

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

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

AuG 1. 1984

CIVIL PENALTY PROCEEDING
Docket No. LAKE 84-68
A.C. No. 12-01818-03507

.

EUREKA MINING CORPORATION,
Respondent

Patmore Mine

DECISION
Appearances:

Rafael Alvarez, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois,
for Petitioner;
Barbara Reeves, Eureka Mining Corporation,
Morgantown, Kentucky, for Respondent.

Before:

Judge Kennedy

This matter came on for an evidentiary hearing in
Owensboro, Kentucky on Thursday, July 26, 1984. At the
conclusion of the hearing the parties conferred and moved
for approval of a settlement of the two violations charged
in the amount of $50.
·Based on an independent evaluation and de novo review
of the circumstances as set forth in the transcript of the
hearing, I found the settlement proposed was in accord
with the purposes and policy of the Act.
Accordingly, it is ORDERED that the decision approving
settlement be, and hereby is, AFFI
D and the captioned
matter DISMISSED.

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn St., 8th Fl., Chicago, IL
60604
(Certified Mail)
Ms. Barbara Reeves, Eureka Mining Corporation, P.O. Box 277,
Morgantown, KY 42261
(Certified Mail)
/ejp

1919

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

August 3, 1984

.

UNITED MINE WORKERS OF
AMERICA (UMWA) I
ON BEHALF OF
JERRY D. MOORE I

DISCRIMINATION PROCEEDINGS
Docket No. KENT 82-105-D
MADI CD 82-05
Docket No. KENT 82-106-D
MADI CD 82-04

LARRY D. KESSINGER,
Complainants

v.

Eastern Division Operations

PEABODY COAL COMPANY,
Respondents
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
THOMAS L. WILLIAMS,
Complainant

Docket No. LAKE 83-69-D
VINC CD 83-04

v.
Eastern Division Operations
PEABODY COAL COMPANY,
Respondent
. ORDER AWARDING DAMAGES
ORDER AWARDING ATTORNEYS FEES
ORDER ASSESSING CIVIL PENALTIES
Appearances:

Mary Lu Jordan, Esq., United Mine Workers of
America, Washington, D.C. on behalf of Complainants Jerry D. Moore and Larry D. Kessinger;
Frederick W. Moncrief, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington, Virginia, on behalf of Complainant,
Thomas L. Williams;
Michael o. McKown, Esq., Peabody Coal Company,
St. Louis, Missouri, for Respondent.

Before:

Judge Merlin

On July 11, 1984, a decision was issued with respect to
the operator's liability in these cases.
The parties have
set forth their positions with re·spect to damages, attorneys
fees, and civil penalties so that determinations now may be
made with respect to these matters.

1920

Lake 83-69-D
The operator and the Solicitor have stipulated that the
total back pay and interest through July 23, 1984, to which
Complainant, Thomas L. Williams, is entitled under the
July 11 decision is $29,301.61.
In addition, the Solicitor seeks recovery of unreimbursed medical expenses, the amount of which the parties
agree is $710. Reimbursement is also sought for the cost of
obtaining recertification as an electrician. The parties
agree that Complainant worked in the mines as an electrician
before his lay off (Hearing, July 27, 1984, p. 6-7). The
operator concedes that under the July 11 decision Complainant is entitled to medical expenses and recertification
(Hearing July 27, 1984, p. 5, 7-8}.
Complainant further seeks money damages for losses he
incurred in real estate and business ventures after he was
laid off. By letter to the Solicitor dated May 5, 1984,
Complainant's private attorney, Mr. Clyde Collins, alleges
realty losses of $58,380. Mr. Collins' letter sets fd~th
the following:
In June 1982 Complainant purchased a ~esi~
dential property and a rental property for $58,000 ($20,000
for residential and $38,000 for rental); the purchase was
financed through a first mortgage to The Peoples National
Bank, New Lexington, Ohio, of $50,000 and a second mortgage
to the sellers of $8,000; Complainant was unable to make the
mortgage payments in the first half of 1983 and the bank
foreclosed on the mortgages, which foreclosure became final
January 13, 1984; both properties were sold at a Sheriff's
sale from which deficiency judgments against Complainant
total $ 41, 3 8 0; 'the properties were worth $ 7 5, 0 0 0 and Com- plainant•s loss of equity is $17,000; the combined damages
from the deficiency judgments and the equity loss are
$58,380.
The Solicitor and operator's counsel agree that with·
additional interest through July 23, 1984, the claimed
realty loss as of this date is $62,018.36 (Stipulation No.
6) •

In addition, Complainant claims money damages arising
from business losses.
In this respect the attorney's letter ,_
sets forth the following:
In December 1982, Compla;i,nant
....
leased the real estate and equipment of a restaurant business for six months; Complainant borrowed $2,500 from the
City Loan in New Lexington to be used as capital in connection with the restaurant; during the first four months of
1983, when Complainant's mortgages became delinquent, he
also became delinquent in the payment of the $1,500 per
month lease rental of the restaurant; the same bank which
held Complainant's mortgages also held the mortgage on the

1921

restaurant; the owners of the restaurant were also in default on the mortgage held by the bank on the restaurant
property; in April 1983, Complainant reached an agreement
with the owners of the restaurant for a new three year
lease, but the bank refused to consent to the lease due to
arrearages already existing on Complainant's residential
mortgages with the bank; Complainant attempted a Chapter 13
bankruptcy, but a feasible plan could not be worked out
since the liabilities had reached the point where the necessary payment into the plan was beyond Complainant's ability;
Complainant returned possession of the restaurant premises
to the owners at the conclusion of the initial lease period;
the financial loss from this venture was $12,809.16.
Finally, the attorney's letter states that Complainant
incurred attorneys fees arising out of the matters detailed
above in the amount of $7,235 and job hunting expenses of
$1418.64.
Section 105(c) (2) of the Act, pursuant to which t~e
Solicitor filed this action on Complainant's behalf, provides as follows with respect to the relief that can be
given:

* * * The Commission shall afford an opportunity for a
hearing; (in accordance with section 554 of title 5,
United States Code, but without regard to subsection
(a) (3) of such section) and thereafter shall issue an
order, based upon findings of fact, affirming, modifying or vacating the Secretary's proposed order, or
directing other appropriate relief.
Such order shall
become final 30 days after its issuance. The Commission shall have authority in such proceedings to require a person committing a violation of this subsection to take such affirmative action to abate the
violation as the Commission deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner to his former position with
back pay and interest. * * * [Emphasis supplied.]
The Senate Report states with respect to relief in section 105 cases as follows:
It is the Committee's intention that the Secretary
propose, and the Commission require, all relief that is
necessary to make the complaining party whole and to

1922

remove the deleterious effects of the discriminatory
conduct including, but not limited to reinstatement
with full seniority rights, back-pay with interest, and
recompense for any special damages sustained as a
result of the discrimination. The specified relief is
only illustrative.

s. REP. NO. 95-181, 95th Cong., 1st Sess. 37 (1977),

reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE
SAFETY AND HEALTH ACT OF 1977, 95th Cong., 2d Sess., at
625 (1978).

The Act specifically provides for back pay and interest. Accordingly, the Complainant is entitled to $29,301.61
plus additional interest from July 23, 1984 to the date of
payment computed in accordance with applicable Commission
precedent.
In addition, it must be determined whether the additional special damages which Complainant seeks may be
awarded as "other appropriate relief" under section 105-:" ·
(c) (2) , supra. In the words of the Senate Report quoted,
supra, such damages are awarded when they are sustained "as
a result of" the discrimination. The right to recover such
amounts under the Mine Act has not been decided. Reference
may be made, however, to general principles of law. It has
been held that in order to be recoverable, damages must be
proved to be the proximate result of the complained wrong.
Classic Bowl, Inc. v. AMF Pinspotter, Inc., 403 F.2d 463
(7th Cir. 1968). The legal concept of proximity is applicable to ascertain and measure damages. The necessary and
appropriate limits of judicial inquiry are served by disregarding consequential and remote effects. Commonwealth
Edison Company v. Allis-Chalmers Manufacturing Company, 225
F. Supp. 332 (N.D. Ill. 1963). The usual monetary measure
of damages for wrongful discharge at common law, under the
National Labor Relations Act and under the Equal Opportunity
Act is back pay less interim earnings. St. Clair v. Local
Union 515, 422 F.2d 128 {6th Cir. 1969). An employee discharged in violaticn of the Railway Labor Act was held
entitled in addition to reinstatement only to an award of
back pay. Brady v. Trans-World Airlines, Inc., 244 F. Supp.
82 0

( D. De 1. 19 6 5 ) •

In this case the wrongful layoff of Complainant by the
operator cannot be held the proximate cause of Complainant's
monetary losses from real estate and business activities.
To put it in terms of the Senate Report, quoted above, these
damages were not sustained as a result of the discrimination.
It is clear from the letter of Complainant's attorney that
Complainant engaged in a series of highly speculative and

1923

risky ventures. 1/ He bought $58,000 worth of real estate
with no equity a.own and obligated himself under a $50 ,oon
first mortgage and an $8,000 second mortgage, both at a
16.5% interest rate (Hearing July 27, 1984, p. 13). Even
where the individual did not engage in such activities,
recovery for his loss of a home to the mortgage holder has
been denied.
St. Clair v. Local Union No. 515, supra.
Moreov~r, just a few months after Complainant undertook the
sizeable real estate debts just described and after he had
been laid off, he went into the restaurant business, again
without any equity of his own and borrowing additional cash
from a loan company and obligating himself to monthly payments of $1500 under a six months lease.
It is little
wonder that the bank which held the mortgages on Complainant's realty and the mortgage on the restaurant refused to
consent to a new lease on the restaurant.
It must also be
noted that it appears from the attorney's letter that the
owners of the restaurant h.ad no other assets because they
immediately went into default when Complainant could not pay
them.
In sum therefore, many intervening factors, and not
the wrongful layoff, are responsible for Complainant's
damages in real estate and business. The principal and precipitating factor in Complainant's financial debacle has
been his own business and financial judgment, or lack thereof. Under such circumstances, award of special damages
would not be appropriate under the Act and such relief is
denied.
The same considerations apply with respect to the attorney's fees and related expenses which were incurred by
Complainant as a result of his real estate and business
activities. Recovery of damages for these items is also
denied.

1/ None of the real estate and business figures given by
Complainant's private attorney have been verified. Many
appear highly questionable. For example, the value of the
real estate is given as $75,000 although Complainant paid
only $58,000 for it with no down payment. At the foreclosure sale, the properties were sold for $26,666 which, according to the Order of Sale furnished by the Solicitor, was
at least 2/3 of the appraised value. Accordingly, the appraisal value could not have been more than $40,000. For
the reasons set forth herein, it is not necessary for present purposes to determine the true extent of Complainant's
losses in these matters.

1924

As set forth above, the letter from Complainant's attorney alleged expenses of $1,418.64 related to seeking
employment. The Solicitor's brief cited no case law to
support an award of such damages. The Solicitor advised
that he knew of no precedent to support such an award and
indeed stated that decisions under the National Labor Relations Act indicated such an award would not be made (Hear~
ing July 27, 1984, p. 16). The claim of damages for these
amounts is, therefore, denied.
Two other items remain for consideration. As previously stated, the parties agree that the unreimbursed
medical expenses are $710. Operator's counsel advised that
no objection exists with respect to this item (Hearing
July 27, 1984, p.5). So too, the operator does not object
to payment for the Complainant's recertification as an
electrician (Hearing July 27, 1984, p. 7-8).
It should be
noted that an award of damages in these two instances would
be appropriate under the principles set forth herein. The
medical expenses would have been paid for by health insurance if Complainant had been working and the electrical .
certification would not have expired if Complainant had not
been laid off. The layoff was the proximate cause of these
particular losses.
Finally, careful consideration has been given to the
decision in Secretary of Labor on behalf of Noland v. Luck
Quarries, Inc., 2 FMSHRC 954 (1980).
In that case, recovery
was allowed under section 105(c) (2) for lost equity in a
truck. The miner there had been a truck driver who hauled
rock in his own truck for the company which had wrongfully
discharged him. Because of earnings lost due to the discharge, the Complainant lost the truck.
In order for the
miner in Noland to return to his former work hauling rock,
he needed a truck.
It was therefore not enough in that case
to order reinstatement with back pay and interest. The
analogous item in the instant case is the cost of recertification as an electrician which has been allowed and which
would permit Complainant to resume his former position in
the mines as an electrician. The decision in Noland is not
precedent for an award in this case of special damages
arising from real estate and business losses unrelated to
Complainant's ability to return to his former position and
caused by many factors other than the discriminatory layoff.

1925

KENT 82-105-D
KENT 82-106-D
The operator and the United Mine Workers have agreed
that under the July 11 decision, total back pay and interest
through July 23, 1984, payable to Mr. Kessinger is $~3, 320·.12
and to Mr. Moore is $59,294.25.
Section 105(c) (3) of the Act, pursuant to which the
union brought these actions on behalf of Complainants Kessinger and Moore, provides for relief in terms like those of
section lOS(c) (2) already considered with respect to the
suit brought by the Solicitor. Section 105(c) (3) provides
in pertinent part as follows:

* * * The Commission shall afford an opportunity for a
hearing (in accordance with section 554 of title 5,
United States Code, but without regard to subsection
(a) (3) of such section), and thereafter shall issue
an order, based upon findings of fact, dismissing or
sustaining the complainant's charges and r if the ···:. ·
charges are sustained, granting such relief as it
deems appropriate, including, but not limited to,
an order requiring the rehirin~ or reinstatement
of the miner to his former position with back pay
and interest or such remedy as may be appropriate.
Such order shall become final 30 days after its issuance. Whenever an order is issued sustain"ing the
Complainant's charges under this subsection, a sum
equal to the aggregate amount of all costs and expenses (including attorney's fees) as determined
by the Commission to have been reasonably incurred
b~ the miner, a~plicant for emplo¥ment or representative of miners or, or in connection with, the institution and prosecution of such proceedings shall be
assessed against the person committing such violation.
* * * [Emphasis supplied.]
Since the Act specifically provides for back. pay and
interest, Complainant Moore is entitled to $59,294.45 plus
interest after July 23, 1984, and Complainant Kessinger is
entitled to $43,320.12 plus interest after July 23, 1984.
Interest is computed in accordance with applicable Commission precedent.
These cases present the additional issue of attorneys
fees. Counsel for the union has filed a petition for attorneys fees detailing 127.75 hours spent on these cases and
stating that the market rate for attorney's services is

1926

$100 per hour. The total fee sought is $12,628.50. 2/ The
operator did not object to the number of hours claimed or to
the market rate given by the union (Hearing July 27, 1984,
p. 4) •
It has been decided that attorneys fees may be awarded
in discrimination cases brought under the Mine Safety Act by
the union on behalf of miners.
In Munsey v. Federal Mine
Health and Safety Review Commission, 701 F.2d 976 (D.C. Cir.
1983) , the Court of Appeals for the District of Columbia
held in this respect as follows:

* * * This circuit has recognized that unions and union
attorneys are entitled to costs and attorney fees for
representation of union members. Nat'l Treasury Employees Union v. U.S. Dep't of the Treasury, 656 F.2d
848 (D.C. Cir. 1981). If attorney fees are awarded to
the union itself rather than its attorney, the union
can only recoup the expenses it incurred in supplying
services to the client: above-cost fees to the union
itself would be inappropriate.
Id. at 853.
If a~tor
ney fees are awarded to the attorney alone (and not for
the union's general treasury), the attorney is entitled
to receive the market value of the services rendered.
The mere fact that an attorney is a salaried employee
of the union should not affect the size of the fee to
which he is entitled. Id. at 850.
"Reasonableness, in
terms of market value or-the services rendered, is the
sole limit on fee awards to organizationally-hired
lawyers when the fees are to be paid to the lawyers
alone." Id. at 852-853.
·
On remand, the Commission should determine the
amount to be awarded in accordance with the standards
set forth in Nat'l Treasury Employees Union v. U.S.
Dep't of the Treasury, supra. !/
1/ We note that in past cases we have required salaried attorneys recovering the market value of their
services from defendants to reimburse their employers
for the kinds of expenses the employers incurred that
would normally be included in an attorney's fee, including the salaries of the lawyers and their adjunct
staff.
* * *

2/ Four hours representing work performed by an attorney
who is no longer with the UMW legal staff and who has waived
her right to any attorney fees were billed at the union's
cost of $60 per hour.
Parking expenses were $13.50.

1927

The hours and market rate claimed are reasonable in
light of the nature of the cases and all that has transpired
in them. Accordingly, a total fee of $12,628.50 is awarded.
The representation that the union's cost is $60 per hour is
accepted. Accordingly, $7,678.50 of the total fee is awarded
to the union and the balance of $4,950 is awarded to union
counsel.
The statutory scheme of health and safety in the mines
expressed in the Mine Safety Act provides throughout for
meaningful participation by miner representatives. By
bringing these actions, the union has fulfilled its intended
role and demonstrated the value of the opportunity to participate.
Assessment of Civil Penalties
The Solicitor has filed a petition seeking the assessment of a civil penalty of $1000 in each of the three cases.
The parties agreed with respect to the six criteria set:
forth in section llO(i) of the Act (Hearing July 27, 1984,
p. 25-27). The operator waived its right to file an answer
and had no objection to payment of these amounts (Hearing
July 27, 1984, p. 24).
The proposed penalties are consistent with the Act and will advance its purposes. Accordingly, civil penalties totalling $3,000 are assessed.
Order
It is Ordered that the operator pay Complainant Thomas
L. Williams $29,301.61 and $710 plus interest from July 23,
1984, to the date of payment.
It is further Ordered that when Complainant Thomas L.
William is recalled, the operator either pay necessary and
reasonable costs of electrical recertification or provide
the instruction necessary for such recertification.
It is further Ordered that all other claims of Complainant Thomas L. Williams for damages are Denied.
It is further Ordered that the operator pay Complainant
Jerry D. Moore $59,294.45 plus interest from July 23, 1984,
to the date of payment.
It is further Ordered that the operator pay Complainant
Larry D. Kessinger $43,320.13 plus interest from July 23,
1984, to the date of payment.

1928

It is further Ordered that the operator pay attorneys
fees of $7,678.50 to the United Mine Workers of America.
It is further Ordered that the operator pay attorneys
fees of $4,950 to Ms. Mary Lu Jordan, Esq.
It is Ordered the operator pay civil penalties of
$3,000. If no appeal is taken, payment of civil penalties
shall be made within 30 days of the expiration of the appeal
period.

--

\~

'

Paul Merlin
Chief Administrative Law Judge

Distribution:
Michael O. McKown, Esq., P.O. Box 235, St. Louis, MO
(Certified Mail)

63166

Mary Lu Jordan, Esq., United Mine Workers of America, 900
15th Street, N.W., Washington, DC 20005
(Certified Mail)
Frederick Moncrief, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203
(Certified Mail)

/nw

1929

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

August 3, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 83-107-M
A.C. No. 02-00156-05501

v.
Docket No. WEST 84-55-M
A.C. No. 02-00854-05503

PHELPS DODGE CORPORATION,
Respondent

New Cornelia Branch Mine
DECISION
Appearances:

John C. Nangle, Esq., Associate Regional
Solicitor, U.S. Department of Labor, Los
Angeles, California, for Petitioner;
Stephen W. Pogson, Esq., Evans, Kitchel &
Jenckes, P.C., Phoenix, Arizona, for Respondent.

Before:

Judge Merlin

These cases are petitions for the assessment of civil
penalties filed by the Secretary of Labor against Phelps
Dodge Corporation. The hearing was held as scheduled on
May 30, 1984.
By agreement of the parties, these cases were consolidated for hearing and decision (Tr. 5). At the hearing, the
parties agreed to the following stipulations (Tr. 4, 6):
1. The operator is the owner and operator of the
subject mine.
2.
The operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977.
3.

The administrative law judge has jurisdiction.

4.
The inspectors who issued the subject citations
were duly authorized representatives of the Secretary.
5. True and correct copies of the sfibject citations
were properly served upon the operator.

1930

6. Copies of the subject citations and terminations
are authentic and may be admitted into evidence for
the purpose of establishing their issuance but not for
the purpose of establishing the truth or relevancy of
any statement asserted therein.
7. Imposition of penalties herein will not affect the
operator's ability to continue in business.
8. All the alleged violations were abated in good
faith.
9. The operator's previous history of violations is
average. 1:_/
10. The operator's size is large.
11. Violations occurred in citations Nos. 2086972 and
2086671.
Citation No. 2086972
§

Section 55.14-1 of the mandatory standards, 30 C.F.R.
55.14-1, provides as follows:
Gears; sprockets; chains; drive; head,
tail, and takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and
similar exposed moving machine parts which
may be contacted by persons, and which may
cause injury to persons, shall be guarded.

The citation describes the condition or practice as
follows:
There was no guard to prevent a person
from contacting the auxilliary (sic) rope
starter on the 10 h.p. gasoline engine for
the air compressor located on the bed of
M-41 GMC service truck. The rope starter
was about 5 feet above the ground and faced
out from the truck bed. It was in motion
when the motor was running and was next to
the electric starter switch.

1/ The operator's brief errs in stating that the parties
stipulated that the operator's history was better than
average. The Solicitor sta;ted it would be "better" to
stipulate to an average history, not that the history was
better than average (Tr. 181).

1931

As set forth in stipulation No. 11, supra, the violation is admitted. The inspector explained that the rope
starter in question was an auxiliary to the automatic
starter, primarily used to start up the air compressor which
pumped air into tires (Tr. 8, 26). The inspector further
testified that the air compressor mounted on a truck was
used on uneven ground or on ground covered with broken rock
(Tr. 27-28). I accept this testimony over contrary testimony from the operator's safety supervisor (Tr. 51). I
further accept the inspector's testimony that an individual
could slip and lose his footing thereby coming into contact
with the moving part of the machine. An injury would result
(Tr. 28, 30). Accordingly, I conclude the violation was
serious.
I reject the argument that because the men operating the starter were familiar with it, an accident would
not happen (Tr. 45). The history of mining is replete with
knowledgeable people becoming involved in serious accidents
either through their own misconduct or through events over
which they had no control. The starter should not have been
left uncovered. The operator was guilty of ordinary negligence.
Finally, I believe the violation was significant and
substantial. The operator of the air compressor as well as
others whose equipment was being serviced are routinely in
the area and could stumble on the uneven ground and become
caught. Any injury would be severe. The reasonable likelihood tests of the Commission are satisfied. U.S. Steel
Corp., --- FMSHRC --- (July 11, 1984), Consolidation Coal
Company, 6 FMSHRC 34 (1984), Consolidation Coal Company, 6
FMSHRC 189 (1984).
A penalty of $75 is imposed.
Citation No. 2086667
§

Section 55.11-1 of the mandatory standard, 30 C.F.R.
55.11-1, provides as follows:
Safe means of access shall be provided
and maintained to all working places.

The citation describes the condition or practice as
follows:
An employee was observed crossing the
No. 1 primary pan feeder dump to and from
the dump operator's control room. By the
use of the solid railroad bed, a safe.access

1932

was not provided, due to the opening on both
sides of the track, use [sic] for dumping
ore cars. This was not a regular travel
area, company had an access on east side of
the ore dump.
The operator concedes that under Commission precedent
the trestle was a means of access and that it was required
to be safe. Hanna Mining Company, 3 FMSHRC 2045 {1981).
The operator argues, however, that MSHA failed to show that
the trestle was not safe. This argument cannot be accepted.
The trestle was eight feet wide with five feet between the
rails.
It was approximately 50 feet long. The trestle
spanned a chasm, 14 to 15 feet deep, which was the dumping
point. Trains moved along the rails and dumped onto a pan
feeder.
There was a danger of falling into the pan feeder
if an individual were to trip {Tr. 81). The locomotive
engineer and the dump operator, who brought the materials
onto the trestle to be dumped, were required by the operator
to rope themselves off.
They were to place a lanyard in
such a way that if they fell, they would be caught and
prevented from falling into the chasm {Tr. 86). Thus, the
operator itself recognized the danger of being on the
trestle.
Based upon the foregoing, I conclude a violation existed and that it was serious.
I further determine that the
operator was negligent in not preventing use of the unsafe
trestle by the workers. Finally, the violation was significant and substantial.
It was reasonably likely that use of
the trestle would result in a reasonably serious injury.
U.S. Steel, --- FMSHRC --- {July 11, 1984), Consolidation
Coal Company, 6 FMSHRC 34 {1984).
A penalty of $125 is assessed.
Citation No. 2086671
§

Section 55.9-7 of the mandatory standards, 30 C.F.R.
55.9-7, provides as follows:
Unguarded conveyors with walkways shall
be equipped with emergency stop devices or
cords along their full length.

The citation describes the condition or practice as
follows:
The first idle roller {about three feet)
from the tail pulley of the No. 2, 42 inch
wide conveyor was exposed to contact. Approximately four (4) feet from floor level and next

1933

to about three (3) foot wide walkway, an emergency stop cord was mounted up front from the
idle roller to where a person could not reach
it if he or she had needed it in an emergency.
Exposure would be about one person, one time
on daily basis.
As set forth in Stipulation No. 11, su?ra, the violation in this instance was admitted. The evidence demonstrates that the stop cord was missing for a relatively
short distance running from the angle iron back to the tail
pulley ("C" to "D", MSHA Exh. No. 11) (Tr. 119-121). The
inspector and the operator's safety inspector were in conflict over whether an individual would be seriously injured
if they became caught at a pinch point where there was no
emergency cord (Tr. 124-125, 135-140, 154). I find the
inspector's testimony more persuasive in this regard and·
accept it. Maintenance personnel and repairmen were in this
area in the performance of their usual duties and the conveyor could be running although this would be rare (149150). The violation was serious. I accept the inspector's
evaluation that negligence was low (Tr. 124). The violation
was significant and substantial because it was reasonably
likely that an individual who became caught would suffer a
reasonably serious injury.
A penalty of $70 is assessed.
Citation No. 2086672
§

Section 55.11-1 of the mandatory standard 30 C.F.R.
55.11-1, provides as follows:
Safe means of access shall be provided
and maintained to all working places.

The citation described the condition or practice as
follows:
The entire lenght (sic), and both sides
of No. 2 conveyor had accumulations of muck
with rocks up to about 8 (eight) inches in
diameter in the walkways, also piles of muck
up to about (three) 3 feet high. Possible
tripping and/or fall hazard.
The inspector's description in the citation of the
accumulation along the walkway is uncontradicted and I
accept it. The operator admits that there was muck and rock

1934

on the walkway but argues nevertheless that it was a safe
means of access (Operator's Brief P. 7). The inspector testified that the risk was of someone tripping and falling
(Tr. 115). I find the inspector's testimony persuasive and
accept it. The operator's witness first indicated that
maintenance people, when making their rounds, merely shine a
flashlight down the walkway rather than traveling down it
(Tr. 131-132, 150-151, 152) but later he admitted that
sometimes they might travel down the walkway to check it
(Tr. 151, 153). I find that maintenance and repair personnel were required to travel along the walkway in performance
of their regular duties. A violation existed and it was
serious. The operator was plainly negligent. Finally the
violation was significant and substantial because traveling
along this walkway presented a reasonable likelihood of a
reasonably serious injury.
A penalty of $100 is assessed.
Citation No. 2086674
Section 55.14-1 of the mandatory standards, 30 C.F.R. §
55.14-1, provides as follows:
Gears; sprockets; chains; drive, head,
tail, and takeup pulleys; flywheels; couplings; shafts; saw blades; fan inlets; and
similar exposed moving machine parts which
may be contacted by persons, and which may
cause injury to persons, shall be guarded.
The citation describes the condition or practice as
follows:
The guards on the two oil pumps did
not extend around the back side of the "v"
belts, leaving an opening to where a person
could make contact with the pinchpoint,
both motors had about 4 inch pulley and
about 10" pulley on the pumps. High point
was about three (3) feet above floor level
and about three (3) from the wall of the
enclosure, energized and subject to start,
located in the No. 2 primary gyrator oil
pump house.
·
There is no dispute that guards ·were present on the two
oil pumps involved in the subject citation. However, the
inspector testified that there was no guard at the pinch

1935

points where the belts met the pulleys (points "A" on MSHA
Exh. No. 13) (Tr. 157-158). In the inspector's opinion, an
individual's hand could become caught at this point (Tr.
160, 161, 164-166). However, the operator's witnesses testified that it was highly unlikely if not impossible for an
individual to become caught at the pinchpoints in question
(Tr. 175-176). Based upon the photographic evidence introduced by the Solicitor (MSHA Exh. Nos. 12 and 13), I find
the testimony of the inspector more persuasive and conclude
that a violation existed. Since injury could result, the
violation was serious. The operator was negligent in not
adequately guarding the machinery. Maintenance people were
required to be in the area in the performance of their regular duties. The violation was significant and substantial
because it was reasonably likely that a slipping or falling
accident would expose miners near the machinery to a reasonably serious injury.
A penalty of $75 is assessed.
Citation No. 2086888
§

Section 55.16-6 of the mandatory standards, 30 C.F.R.
55.16-6, provides as follows:
Valves on compressed gas cylinders shall
be protected by covers when being transported or
stored, and by a safe location when the cylinders are in use.

The citation describes the condition or practice as
follows:
The acetylene and oxygen cylinders were
observed in the walkway between No. 10 and
11 mills. The gauges were mounted on the
cylinders which were in an "off" position and
and secured in a hand cart in an upright
position. This area was traveled hourly.
Also an overhead crane was in use.
The cutting rig was not assigned to anyone in the
area. 1100 hour to 0700 hour shift may have
used them.
There is no dispute with respect to the facts.
The
inspector found two acetylene and oxygen cylinders in the
walkway between the No. 10 and No. 11 mills. The gauges
were in an "off" position (Tr. 197-198). The inspector

1936

questioned miners in the area but no one admitted to using
the cylinders (Tr. 199-200). The inspector concluded that
the cylinders had been left by someone on the prior shift
(Tr. 200, 205). The issue presented is whether the situation is covered by the mandatory standard. The workers in
the area to whom the inspector spoke said they were not
assigned to work with the cylinders (Tr. 199-200). According to the inspector the mill foreman said the cylinders
might have been used on the prior shift (Tr. 200). One
individual the inspector spoke to said they were going to
take the cylinders back to the repair bay area (Tr. 201).
The inspector concluded that on the present shift, no one
was assigned to the tanks which were going to be taken to
the bay area (Tr. 201). The inspector concluded that the
cylinders were stored and that a violation existed b~cause
,they were not protected by covers.
In Secretary of Labor v. FMC Corporation, -- FMSHRC -(July 2, 1984), the Commission defined "storage" as follows:
"In ordinary usage, the term storage, 'the act of storing or
the state of being stored', covers a wide variety of meanings, including to accumulate, to supply, to amass, or to
keep for future use." The Commission decided that the term
was sufficiently broad to include short-term, long-term, and
semi-permanent storage.
In FMC, a blasting agent was improperly left in a supply yard for over an hour and some of
it had not been moved for more than six hours.
In this
case, the shift had started at 7:00 a.m. and the inspector
saw the cylinders just before 9:00 a.m.
He was justified in
concluding that they had been left from the prior shift.
The interval in this case falls within the time frame held
by the Commission t.o constitute "storage" under a comparable
mandatory standard.
Therefore, I conclude that the cylinders were being stored temporarily or semi-permanently before being transported to the bay area. Due to the lack of
covers on the cylinders, a violation existed.
The inspector testified that the cylinders could become
airborne projectiles if the valve stem broke while the cylinder was tipped (Tr. 202-203).
I find this could easily
happen since the area was traveled hourly and hoses were
present on which a person could trip (Tr. 206). The violation was serious.
I further find the operator was negligent. Both the foreman on the prior shift and the foreman
on the shift in progress had ample time and opportunity to
discover this condition and correct it.
I reject the inspector's excuse for failing to cite this violation as significant and substantial, because he did not actually see
anybody walking by who would cause the cylinders to be
knocked over (Tr. 231) • People frequently pass by this area

and could easily knock over one of the unguarded cylinders,
creating a reasonable likelihood· of very serious injury.
Leaving potentially lethal items such as these cylinders
lying about must be discouraged. Deterrence will not result
from a $20 penalty such as the Solicitor proposed here.
A penalty of $250 is assessed.
ORDER
The operator is Ordered to pay the following amounts
within 30 days from the date of this decision:
Citation No.
2086972
2086667
2086671
2086672
2086674
2086888
Total

-

Amount
$ 75
125
70
100
75
250
$695

Paul Merlin
Chief Administrative Law Judge

Distribution:
John C. Nangle, Esq., Associate Regional Solicitor, U.S.
Department of Labor, 3247 Federal Building, 300 North Los
Angeles Street, Los Angeles, CA 90012
(Certified Mail)
Stephen W. Pogson, Esq., Evans, Kitchel & Jenckes, P.C.,
2600 North Central Avenue, Suite 1900, Phoenix, AZ 85004
(Certified Mail)

/nw

1938

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

AUG 6 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA).,
Petitioner

v.

MEDUSA CEMENT COMPANY,
Respondent

:

CIVIL PENALTY PROCEEDINGS

:

:

Docket No. LAKE 83-74-M
A.C. No. 20-02514-05501

:

A.C. No. 20-00038-05501

:

Docket No. LAKE 83-76-M
A.C. No. 20-00038-05502

:

Docket No. LAKE 83-77-M
A.C. No. 20-00038-05503

:

A.C. No. 20-00038-05504

:

Docket No. LAKE 83-81-M
A.C. No. 20-02514-05502

.
Docket No. LAKE 83-75-M

.
: Docket No. LAKE 83-80-M

Medusa Cement Company Plant
DECISION
Appearances:

Rafael Alvarez, Esq., Office of the
Solicitor, U.S. Department of Labor,
Chicago, Illinois, for Petitioner~
Ralph M. Richie, Sa'fety Director, Medusa
Cement Company, Cleveland, Ohio, for
Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
The above cases involve 48 alleged violations of mandatory safety standards cited during inspections in April and
May, 1983. Respondent contested the penalties assessed by
MSHA and the Solicitor filed proposals for penalty which
were docketed in the Review Commission. Subsequently, the
parties agreed to settle the violations for the amount originally assessed and motions for approval of the settlement

1939

agreements were submitted. The Chief Administrative Law
Judge denied the settlement proposals and assigned the
cases to me.
Pursuant to notice, the cases were heard in Charlevoix,
Michigan, on June 21, 1984. During an on the record discussion between the representatives of both parties, including the taking of testimony from Federal Mine Inspectors
Ronald J. Baril and Clyde c. Brown for Petitioner and Plant
Safety Director William Nall and Safety Committee member
Richard Putman for Respondent, the parties agreed to settle
the violations f~r the penalties listed herein. I stated on
the record that I would approve the settlement agreements.
FINDINGS AND CONCLUSIONS APPLICABLE TO ALL VIOLATIONS
1. Respondent owns and operates a mill in Charlevoix
County, Michigan, which produces cement. It is a subsidiary
of the Crane Company·and is a relatively large operator. It
operates the subject mill on a seasonal basis.
2. Respondent has a modest history of prior
violations.
3. The penalties assesed herein will not affect
Respondent's ability to continue in business.
4. Respondent admits the violations charged in the
citations involved herein.
5. All of the violations involved in these proceedings were abated promptly and in good faith.
DOCKET NO. LAKE 83-74-M
Citation No. 2088977
This citation charged a violation of 30 C.F.R.
56.16-6 because of the failure to place covers over the
stems of oxygen and acetylene tanks. The inspector testified that this was a technical violation and no hazard was
presented. The violation was originally assessed at $20
and the parties proposed to settle for $20. I accepted the
representations made at the hearing and approved the proposed. settlement.
§

Citation No. 2088978

1940

This citation charged a violation of 30 C.F.R.
56.9-2, because a rear view mirror was missing from a
haul truck. The violation was originally assessed at $20
and the parties proposed to settle for $50. I approved the
proposed settlement.
§

Citation No. 2088979
This citation charged a violation of 30 C.F.R.
56.4-24(d), because of a defective fire extinguisher on a
drill. The inspector testified that this was a significant
and substantial violation. The violation was originally
assessed at $39, and the parties proposed to settle for
$100. I approved the proposed settlement.
§

Citation No. 2088980
This citation charged a violation of 30 C.F.R~
56.9-2, because a rear view mirror was missing from a
haul truck. The violation was originally assessed at $20
and the parties proposed to settle for $50. I approved the
proposed settlement.
§

Citation No. 2088994
This citation charged a violation of 30 C.F.R
56.12-25 because a portable extension cord light was not
grounded. The cord was used only for lighting purposes and
did not present any hazard to employees. The violation was
originally assessed at $20 and the parties proposed to
settle for $20. I approved the settlement.
§

Citation No. 2088995
This citation charged a violation of 30 C.F.R.
56.12-14, because an employee was moving a power shovel
cable without proper protective equipment. The equipment
was provided by Respondent, and the employees were
instructed to use it, but the employee in question failed
to use it. The violation was originally assessed at $68
and the parties proposed to settle for $68. I approved the
settlement.
§

Citation No. 2088996
This cltation charged a violation of 30 C.F.R.
56.12-32 because of Respondent's failure to have a cover
plate on a switch box. The violation was originally
assessed at $20 and the parties proposed to settle for $50.
I approved the settlement.
§

1941

Citation No. 2089061
This citation charged a violation of 30 C.F.R.
56.12-25 because of the failure to ground an extension
cord to a water softener. The violation was originally
assessed at $39 and the parties proposed to settle for $39.
I approved the proposed settlement.
§

Citation No. 2089062
This citation charged a violation of 30 C.F.R.
56.12-8 because of failure to provide a bushing for a
wire entering the drive motor of the crusher pan feeder.
No bare wires were involved and the violation was in an
area not accessible to employees. The violation was
originally assessed at $20 and the parties agreed to settle
for $20. I approved the proposed settlement.
§

Citation No. 2089065
This citation charged a violation of 30 C.F.R.
56.14-6 because a guard over a pinch point had been
removed while the machine was operating. The violation was
originally assessed at $30 and the parties proposed to
settle for $50. I appioved the proposed settlement.
§

Citation No. 2089066
This citation also charged a violation of 30 C.F.R.
56.14-6 because of the same condition as in the prior
citation~
The violation was originally assessed at $30 and.
the parties proposed to settle for $50. I approved the
proposed settlement.
·

§

DOCKET NO. LAKE 83-75
Citation No. 2088998
This citation charged a violation of 30 C.F.R.
56.14-6 because of failure to have guarding on the tail
pulley of the conveyor belt. The tail pulley would only be
approached during greasing operations when the machine is
shut down. The pinch area is guarded by location. The
violation w~s originaly assessed at $20 and the parties
proposed to settle for $30. I approved the proposed
settlement.
§

1942

Citation No. 2088999
This citation charged a violation of 30 C.F.R.
56.14-1 because of failure to provide guarding for a
conveyor belt head pulley. The guard had been removed and
the employee failed to replace .it. The area is isolated
and would be visited only for maintenance. The violation
was originally assessed at $112, and the parties proposed
to settle for $112. I approved the proposed settlement.
§

· Citation No. 2089067
This citation charged a violation of 30 C.F.R.
56.12-16 because Respondent put drive belts on a drive
motor without locking out the system. Respondent has a
written lock out procedure and all employees are provided
with locks. The employee involved.was aware of the
procedure. The violation was originally assessed at $54,
and the parties proposed to settle for $54. I approved the
proposed settlement.
§

Citation No. 2089068
This citation charged a violation of 30 C.F.R.
56.4-24(d) because of Respondent's failure to service
fire extinguishers. The contractor who serviced the fire
extinguishers for Respondent has since been replaced. The
violation was originally assessed at $85 and the parties
proposed to settle for $100. I approved the proposed
settlement.

§

Citation No. 2089069
This cit~tion charged a violation of 30 C.F.R.
56.11-3 because of the use of an 8 foot stepladder in bad
repair. The ladder had been discarded by Respondent and
placed in a refuse pile. An employee took it from the
refuse pile and used it. The violation was originally
assessed at $39 and the parties proposed to settle for $20.
I approved the proposed settlement.
§

Citation No. 2089070
This citation charged a violation of 30 C.F.R.
56.14-6 because of a defect in the guard for the take up
pulley and counterweight. Employees are not normally in
the area, and the defect had apparently just occurred. The
violation was originally assessed at $20 and the parties
proposed to settle for $20. I approved the proposed
settlement.
§

1943

Citation No. 2089074
This citation charged a violation of 30 C.F.R.
56.11-2 because of a missing section on a handrail on a
walkway. Maintenance has just been performed in the area
and the top section of the handrail had been removed in
order to perform the work. Supervisory personnel were not
aware that the handrail had not been replaced. The violation was originally assessed at $68 and the parties proposed to settle for $68. I approved the proposed
settlement.
§

Citation No. 2089075
This citation charged a violation of 30 C.F.R.
56.11-12 because of an opening above a conveyor through
which a person could fall. The plant had just gone into
production for the season and the area had not been taken
care of. The violation was originally assessed at $85 and
the parties proposed to settle for $85. I approved the
proposed settlement.
§

Citation No. 2089076
This citation charged a violation of 30 C.F.R.
56.12-34 because of a portable light bulb hanging in the
"shoot" without being guarded. The violation was originally
assessed at $68 and the parties proposed to settle for $68.
I approved the proposed settlement.
§

Citation No. 2089077
This citation charged a violation of 30 C.F.R.
56 .11-1 because of a material bui'ld-up on a walkway.
Again, the plant had just started operating, and the
company had not yet completed cleaning·· its many walkways.
The violation was originally assessed at $85 and the
parties proposed to settle for $85. I approved the
proposed settlement.
§

Citation No. 2089078
This citation charged a violation of 30 C.F.R.
§ 56.14-6 ~cause of a missing guard on a tail pulley.
The
guard had been removed for clean up purposes and was not
replaced. The violation was originally assessed at $112
and the parties proposed to settle for $112. I approved
the proposed settlement.

1944

Citation No. 2089079
This citation charged a violation of 30 C.F.R.

S 56.11-2 because of a missing section of toeboard on a
deck area. There was adequate _handrailing - including a
top rail and a midrail. The area was not active at the
time. There was no loose material on the deck. The violation was ori~inally assessed at $20 and the parties proposed to settle for $20. I approved the proposed
settlement.
Citation No. 2089043
This citation charged a violation of 30 C.F.R.
56.14-6 because of an unguarded pinch point. ~he violation was originally assessed at $112 and the parties proposed to settle for $112. I approved the proposed
settlement.

§

Citation No. 2089044
This citation charged a violation of 30 C.F.R.
56.16-5 because compressed gas cylinders were not
properly secured. The cylinders had just been used and the
employees neglected to chain them up. The violation was
originally assessed at $68 and the parties proposed to
settle for $68. I approved the proposed settlement.
§

Citation No. 2089045
This citation charged a violation of 30 C.F.R.
56.12-34 because a portable extension cord with exposed
wires and a broken light bulb in its socket was plugged in
and lying on the floor. The cord Had just been used by an
employee and was left on the floor. The violation was
originally assessed at $136 and the parties proposed to
settle for $136. I approved the proposed settlement.
§

Citation No. 2089047
This citation charged a violation of 30 C.F.R.
56.14-7 because a guard on the V-belt drive was in bad
repair, exposing pinch points. The area was a restricted
walkway. ~he violation was originally assessed at $112 and
the parties proposed to settle for $112. I approved the
proposed settlement.
§

1945

Citation No. 2089048
This citation charged a violation of 30 C.F.R.
because of a defective ladder. Respondent
asserts that the ladder belonged to construction personnel
and had been left by them on the premises. The violation
was originally assessed at $20 and the parties proposed to
settle for $20. I accepted the proposed settlement.
§ 56.11-3

Citation No. 2089051
This citation charged a violation of 30 C.F.R.
because of stored material on a walkway. The
violation was originally assessed at $85 and the parties
proposed to settle for $85. I approved the proposed
settlement.
§ 56.11-1

Citation No. 2089081
This citation charged a violation. of 30 C.F.R.
because of failure to provide guarding for an
extension cord light close to a walkway. Only one employee
- the supervisor making an onshift examination - normally
uses the walkway. The violation was originally assessed at
$20 and the parties proposed to settle for $20. I approved
the proposed settlement.
§ 56.12-34

Citation No. 2089082
This citation charged a violation of 30 C.F.R.
because a power cable lacked a restraining clamp.
The cable was grounded and there was little likelihood 'of
any employee receiving an electrical shock or other injury.
The violation was originally assessed at $20 and the
parties proposed to settle for $20.' I approved the
proposed settlement.
§ 56.12-8

DOCKET NO. LAKE 83-76-M
Citation No. 2089083
This citation charged a violation of 30 C.F.R.
because of a buildup of cement on the stairway
and the walkway at the bottom of the transfer elevator.
The buildup.was of loose material and was not large. The
violation was originally assessed at $85 and the parties
proposed to settle for $85. I approved the proposed
settlement.
§ 56.11-1

1946

Citation No. 2089085
This citation charged a violation of 30 C.F.R.
56.11-12 because of the absence of a cover plate for a
fuel oil pump pit. This was not a travelway but was out in
a field and any employee travelling in the area would be
looking for the pit. The violation was originally assessed
at $20 and the parties proposed to settle for $20. I
approved the proposed settlement.
§

DOCKET NO. LAKE 83-77-M
Citation No. 2089071
This citation charged a violation of 30 C.F.R.
56.9-7 because the emergency stop cord on a conveyor was
not properly located. The discussion brought out that the
cord was within 12 inches of the pinch point and this
conforms to present MSHA District policy. I determined
that no violation was shown and vacated the citation.

§

Citation No. 2089072
This citation charged a violation of 30 C.F.R.
56.9-7 because an accessible stop cord was not present
along the entire length of the conveyor. Here the stop
cord was 21 inches from the pinch point. The violation was
originally assessed .at $20 and the parties proposed to
settle for $100. I approved the proposed settlement.

§

Citation No. 2089000
This citation charged a violation of 30 C.F.R.
56.9-7 because emergency stop devices on both sides of a
conveyor belt were 21 inches from the pinch points. The
violation was originally asessed at $26 and the parties
proposed to settle for $100. I approved the proposed
settlement.
§

Citation No. 2089041
This citation charged a violation of 30 C.F.R.
56.14-6 because the drive chain of an elevator was
unguarded. The guard had been removed for repairs. The
area had been roped off but was still accessible to
employees. The violation was originally assessed at $20 ·
and the parties proposed to settle for $20. I aproved the
proposed settlement.
§

19'47

·~

Citation No. 2089042
This citation charged a violation of 30 C.F.R.
56.9-11 because of a shattered windshield on a front-end
loader. The damaged had occurred on the same shift as the
inspection. The violation was 'originally assessed at $136
and the parties proposed to settle for $136. I approved
the proposed- settlement.

§

Citation No. 2089046
~

This citation charged a violation of 30 C.F.R.
§ 56.14-6 because of a missing guard on a rotary feed drive.
The violation was originally assessed at $112 and the
parties proposed to settle for $112. I approved the
proposed settlement.
Citation No. 2089049'
This citation charged a violation of 30 C.F.R.
56.11-12 because a section of a wall had fallen and was
not cleaned up. Employees did not travel in the area. The
violation was originally assessed at $20 and the parties
proposed to settle for $20. I approved the proposed
settlement.
§

Citation No. 2089050
This citation charged a violation of 30 C.F.R.
56.20-3Ca) because of material spilled on a walkway.
This was hardened material and had apparently been present
for some time. The violation was originally assessed at
$119 and the parties proposed to se~tle for $119. I
approved the proposed settlement.
§

Citation No. 2089080
This citation charged a violation of 30 C.F.R.
56.20-3Ca) because of equipment being present on walkways
presenting tripping hazards. The violation was originally
assessed at $85 and the parties proposed to settle for $85.
I approved the proposed settlement.
§

Citation No. 2089084
This citation charged a violation of 30 C.F.R.
§ 56.12-8 because power cables were out of restraining

clamps.

The cables were in good condition and were

1948

grounded. Employees do not travel the area. The violation
was originally assessed at $20 and the parties proposed to
settle for $20. I approved the proposed settlement.
Citation No. 2089086
This citation charged a violation of 30 C.F.R.
§ 56.9-7 because the emergency stop devices on a conveyor

belt were not operating. The violation was originally
assessed at $119 and the parties proposed to settle for
$119. I approved the proposed settlement.
DOCKET NO. LAKE 83-80-M
Citation No. 2089073
This citation charged a violation of 30 C.F.R.
§ 56.16-6 because of failure to cover the stems of com-

pressed gas cylinders in a truck. The violation was originally assessed at $39 and the parties proposed to settle
for $56. I approved the proposed settlement.
DOCKET NO. LAKE 83-81-M
Citation No. 2088997
This citation charged a violation of 30 C.F.R.
§ 56.14-1 because of the failure to provide guarding for

the counterweight wheel at the No. 2 shaker stream. This
was not a normal travelway and the only employees who would
go in the area would be a supervisor for onshift examinations and an employee to do greasing. The machine would be
deenergized for greasing. The violation was originally
assessed at l20 and the parties proposed to settle for $20.
I approved the proposed settlement.'
Citation No. 2089063
This citation charged a violation of 30 C.F.R.
§ 56.4-24Cd) because of failure to properly maintain and

service a fire extinguisher. The violation was originally
asessed at $39 and the parties proposed to settle for $100.
I approved the proposed settlement.
Citation No. 2089064
This citation charged a violation of 30 C.F.R.
§ 56.11-1 because of material spilled along the walkway at

the conveyor.

Clean up had begun of this area.

1949

The

violation was originally assessed at $39 and the parties
proposed to settle for $39. I approved the proposed
settlement.
ORDER
I have considered and approved the proposed settlements in the light of the criteria in section llOCi> of the
Act. Respondent is ORDERED to pay within 30 days of the
date of this decision the following civil penlties:
CITATION NO.

PENALTY

2088977
2088978
2088979
2088980
2088994
2088995
2088996
2089061
2089062
2089065
2089066
2088998
2088999
2089067
2089068
2089069
2089070
2089074
2089075
2089076
2089077
2089078
2089079
2089043
2089044
2089045
2089047
2089048
2089051
2089081
2089082
2089083
2089085
2089071
2089072

$

vacated

1950

20
50
100
50
20
68
50
39
20
50
50
30
112
54
100
20
20
68
85
68
85
112
20
112
68
136
112
20
85
20
20
85
20
0
100

2089000
2089041
2089042
2089046
2089049
2089050
2089080
2089084
208.9086
2089073·
2088997
2089069
2089064
Total

100
20
136
112
20
119
85
20
119
56
20
100
39
$3,015

Ji

~ dmd.1rt~

James A. Broderick
Administrative Law Judge

Distribution:

Rafael Alvarezi Esq., Office of the Solicitor, U.S~
Department of Labor, 230 South Dearborn Street, Chicago, IL
60604 (Certified Mail)
Ralph M. Richie, Director of Safety and Office Services,
Medusa Cement Company, Box 5668, Cleveland, OH 44101
(Certified Mail)

/f b

1951

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

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

v.
THOMAS E. JONES,
Respondent

.:
.
.

.
...

AUG 61984

CIVIL PENALTY PROCEEDING
Docket No. WEST 81-326-M
A.C. No. 48-00155-05076 A
Alchem Trona Mine

DECISION
Appearances:

J. Philip Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner~
John A. Snow, Esq. Vancott, Bagley, Cornwall &
McCarthy, Salt Lake City, Utah,
for Respondent.

Before:

Judge Vail

STATEMENT OF THE CASE
This a civil penalty proceeding under section llO(c) of the
Federal Mine Safety and Health Act of 1977, 30 C.F.R. § 801 et
seg. (the Act). 1/ The Secretary seeks a civil penalty against
respondent, Thomas E. Jones (Jones>, a mine maintenance foreman
at the Alchem Trona Mine operated by Allied Chemical Corporation
(Allied) near Green River, Wyoming.
Jones is charged with knowingly authorizing, ordering, or
carrying out as an agent, the corporate mine operator's violation
of the mandatory safety standard 30 C.F.R. § 57.21-12 which
provides as follows:
Immediately before and continuously during welding
or cutting with an arc or open flame or soldering
with an open flame, in other than fresh air, or in
places where methane is present, or may enter the
air current, a competent person shall test for methane
with a device approved by the Secretary for detecting
methane.

l/ Whenever a corporate operator violates a mandatory health or
safety standard ••• , any director, officer, or agent of such
corporation who knowingly authorized, ordered, or carried out
such violation ••• shall be subject to· the same civil penalties,
fines, •••. that may be imposed upon a person under subsections
<a) and (d).

1952

The corporate mine operator's violation was cited in a
104(d)(l) type Citation No. 576827 issued.on April 2, 1980, and
alleged as follows:
In Room No. 3 of JME Panel there was a person welding
with an arc on No. 3 miner head in the last open crosscut. There was no person testing for methane with a
methane detecting device. The content of methane in the
air at the miner head was .0%. Less than 20 feet away,
the methane content was from .2% to .5%. The readings
were taken with CSE Model 102 methane detector, the
charge was checked after the readings and was found to
be 3.8. The detector was last calibrated 0015 hours
4/2/80. The panel foreman was.aware that his men were
welding at this location.
Jones denied the allegation.
After notice to the parties, a hearing on the merits was
held in Green River, Wyoming. Post-hearing briefs have been
filed by both parties. Based on the evidence presented at the
hearing and the contentions of the parties, I make the following
decision. To the extent that the contentions of the parties are
not incorporated in this decision, they are rejected.
STIPULATIONS
At the hearing, the parties agreed to the following
stipulations which were accepted (Transcript at 5).
1. Federal Mine Safety and Health Review Commission
(Commission) has jurisdiction over the matter at issue here.
2.

Allied Chemical Corporation is, in fact, a corporation.

3. Thomas E. Jones is an agent of Allied Chemical
Corporation.
FINDINGS OF FACT
1. On April 1, 1980, Melvin R. Jacobson received a
telephone call from a Thomas c. Dean. Jacobson is the supervisor
in the Green River, Wyoming, Mine Safety and Health Administration CMSHA) field off ice. Dean is a miner and employee of
Allied Chemical Corporation at their Alchem Trena Mine. Dean
stated that during the graveyard shift on March 31, 1980, Tom
Jones, a supervisor, allowed a piece of schedule 24 equipment
(lube truck) to be parked and operated in and beyond the last
open cross-cut in the south area of the mine. Also, that welding

1953

was being performed during this time in and beyond the last open
cross-cut. Dean further stated that methane monitoring was not
being conducted during the welding operation (Tr. at 10 and
Exhibit P-1).
2. As a .result this complaint, Jacobson sent MSHA
inspectors William W. Potter and Robert Kinterknecht to the
Alchem Trana Mine to conduct an investigation.
3. On April 1, 1980, Dean had arrived at the No. 3 room of
J.M.E. panel of the Alchem Trana Mine at approximately 12:30 a.m.
to commence work on the graveyard shift. Dean's job was to use
an acetylene torch to cut out the bit holders on the cutting head
of the continuous miner. Thomas E. Jones, the foreman, had made
a methane check at 12:30 or 1:00 a.m. on the graveyard shift CTr.
at 24). No other methane test was conducted by Jones during the
graveyard shift at the location of the continuous miner where
Dean was working CTr. at 26).
4. During the lunch hour on the graveyard shift on April 1,
1980, Dean and Bernie Caldwell told Jones that they should not be
welding in the last open cross-cut. Jones didn't answer the
miners (Tr. at 32 and Exh. P-3).
5. On April 2, 1980, at approximately 1:00 a.m., Jones
again made a pre-shift examination for methane in the J.M.E.
panel (Tr. at 38). MSHA inspectors Potter and Kinterknecht
arrived at the mine at 1:45 a.m. on April 2, 1980, to investigate
Dean's complaint of welding in the last open cross-cut of the
J.M.E. panel. The two inspectors proceeded underground and met
with Jones at approximately 2:25 a.m. The group then proceeded
to the J.M.E. panel arriving at approximately 2:40 a.m. Potter
observed a miner welding in the last open cross-cut and saw no
one monitoring for methane CTr. at 89). Potter issued Citation
No. 576827 CExh. P-2).
6. At the time the citation was issued, the No. 3
continuous miner was parked in the last open cross-cut of the
J.M.E. panel with the head in the drift· or No. 3 room CExh. R-1
and Tr. at 91). Potter t~ok 10 methane readings in the area with
a methanometer. The first test was at the point were welding was
being performed and the reading was .0%. The next test was at a
location just inside 'the cross-cut towards the face. The reading
was .02%, and a few feet nearer the face, a reading was
registered at .05%. As Potter progressed towards the face of the
drift, the readings were from .04% to a .6% at the face CTr. at
93 and Exh. P-4>. The Alchem Trana Mine is considered a very
gassy mine and is subject to a MSHA five day inspection schedule
(Tr. at 95).

•
1954

7. Citation No. 576827 was terminated soon after it was
issued when Jones gave Caldwell his methanometer to check for
methane where the welding was being done (Tr. at 101).
ISSUES
The issues in this proceeding are:
1. Whether Jones, ·as an agent of the corporate operator,
knowingly authorized, ordered, or carried out a violation of 30
C.F.R. § 57.21-12?
2. If so, the appropriate civil penalty that should be
assessed against Jones for the said violation of the Act.

DISCUSSION
Jones admits in his testimony that on April 2, 1980, as
maintenance foreman, he was assigned the task of having certain
maintenance work performed in the J.M.E. panel of Allied's Alchem
Trona Mine. This included repairs to a continuous miner _located
in said panel. After Jones received his assignment, and firebossed the J.M.E. panel at 1:00 a.m., he assigned miners of his
crew to various jobs. Two miners were assigned specifically to
perform work which involved welding on the continuous miner (Tr.
at 171-173>.
·
Jones further admitted that the continuous miner had been
moved earlier to the last open cross-cut of the panel but could
not be taken further from the face area because of various
obstructions, so repairs were made while the miner was in the
last open cross-cut <Tr. at 177-183).
Jones further testified that the last open cross-cut in the
J.M.E. panel is not a return air corridor, as in other mines, but
contains fresh air (Tr. at 236). For ventilation purposes,
Allied uses a system of tubing designed to remove dirty air (air
that may contain methane) from the face. Jones also admits in
his brief, that although the continuous miner was in fresh air,
under Allied's safety practices, when welding is done in the last
open cross-cut, continuous monitoring for methane is required
(Resp's brief at p. 3). Jones further admits that he knew about
a memorandum issued by Allied on March 4, 1976 which stated such
a requirement. ( Exh. P-5 >.
On April 2, 1982, all of Allied's continuous methane
monitors were under repair and not available to Jones for use
during the work being performed on the continuous miner (Tr. at
172, 173). However, he contends that he had been instructed by
his supervisor that while the continuous methane monitors were
not working, he could monitor the methane conditions at the
location of the continuous miner by using a regular hand held

1955

methane monitor every 15 minutes (Tr. at 171-173 and Resp's brief
at p. 4). Jones contends that he specifically followed this
procedure on April 2, 1980. One methane reading was taken when
the miners were setting up their equipment to start welding and
the second reading approximately 15 minutes later. It was at
this time he was called to leave the area and met the MSHA
inspectors (Tr. 190-191).
Randy Dutton, safety engineer for Allied, testified that in
the later part of March, 1980, the maintenance mine superintendent inquired if work could be done in the last open cross-cut
using hand-held methane monitors as the continuous monitors were
not working. Dutton said he did not know and would find out. He
stated that he called the MSHA district off ice and told M.R.
Jacobson, the supervisor, that the continuous monitors were not
working and inquired whether it was permissible to do some
welding beyond the last open cross-cut using hand held monitors.
Dutton claims Jacobson said they could if they monitor and test
for methane every ten to fifteen minutes. This information was
passed on to the maintenance supervisor of the mine (Tr. at 224,
225).
Jacobson denied that he had a telephone c6nversation with
Dutton in March of 1980, and in fact, was not well acquainted
with him. Jacobson checked a telephone log which he maintains at
the MSHA off ice of all calls he receives and found no calls from
Dutton for the period of time involved here. Jacobson did find
in his log that on May 4, 1980, Dutton had called in to report an
accident (Tr. at 260, 261). However, Jacobson did receive a call
from Dutton, in the spring of 1981, after Dutton became Safety
Director, involving a proposed regulation to cover checking
methane in the last open cross-cut (Tr. at 262).
From the conflicting testimony regarding this issue, I find
that the testimony of Jacobson more persuasive than that of
Dutton. Jacobson was able to produce his telephone logs to
support his statements that the alleged conversation never took
place. There was no written evidence or corroboration by Dutton
that he had this conversation and received approval from Jacobson
for monitoring every 15 minutes as he alleged.
Even assuming, however, that Jones was told by a supervisor
that he could monitor every 15 minutes for methane in the last
open cross-cut when welding, his defense must fail. The credible
evidence in this regard clearly demonstrates that Jones took only

1958

the one test at the beginning of the graveyard shift on both
April 1, and April 2, 1980, and did not test after that. Dean
testified that he observed Jones make this one check each day
(Tr. at 23, 24 and 36, 37). However, both Dean and Caldwell
testified that they did not observe Jones make any further checks
for methane on either day. It was after a discussion in the
lunchroom on April 1, 1980, that welding in the last open crosscut without methane monitoring was dangerous and receiving no
apparent response from Jones, that Dean telephoned the MSHA
office and reported the matter. The seriousness of taking such
action by Dean gives credence to his concern about the practice
and supports his contention that no monitoring was going on. The
evidence does not show that Dean was a complainer or raised
safety complaints often. Also, _his testimony was corroborated by
the other miner Caldwell who was able to observe whether Jones
made such .methane checks as Jones claimed. There was testimony
on behalf of Jones that due to welding glasses and mask, the
miners could not observe the tests being made. I do not believe
this to be valid as both men should have seen one or more tests
performed during a whole shift, if they were being done as
claimed by Jones. Also, not one miner or witness of his whole
crew testified that the tests were conducted during the dates
involved.
Based upon the entire record in this case, I find that Jones
was aware of the requirement to check continuously for methane
when welding in the last open cross-cut. Also, that he ordered
Caldwell and Dean to perform welding work in this area on April
1 and 2, 1980, and did not monitor for methane but once during
the entire shift. I find this is a violation of Section
57.21-12.
It was also shown by the evidence that the corporate
operator, Allied was found to have violated§ 57.21-12 involving
the same citation No. 576827 and paid a penalty assessment of
$500.00. See Secretary of Labor v. Allied Chemical Corporation,
(1981) Docket No. WEST 80-478-M, 3 FMSHRC 2387 CALJ) and Exhibit
P-7.
PENALTY
I find the failure on the part of Jones to check for methane
or to not supply the miners with methane checking devices and
instruct them to make the necessary continuous test is gross
negligence. As a supervisor, he was aware of the company memorandum requiring such tests. Also, assuming arguendo that Jones

1957

was given instructions by his supervisor to do so every 15
minutes, tne credible evidence shows that no tests were made
after the initial one at the beginning of the shift.
As to gravity, I find that such failure to test by Jones to
be very serious. The Alchem Trona Mine is considered a very
gassy mine and should methane gas enter the area where welding
was being done, an explosion could occur causing serious injury
or death to the several miners working in the area. Although
this was a fresh air area, it was admitted that a roof fall could
occur which wo~ld allow methane to enter the area where the
miners were working.
In regards to Jones, he has no record or history of previous
violations under the Act. The violation was abated in good faith
by Jones giving one of the miners his methane monitor. There was
no evidence presented in this case as to Jones financial
condition or ability to pay a reasonable penalty if one is
assessed against him. I find based upon the above that $250 is a
reasonable penalty in this case.
ORDER
Based upon the above findings of fact and conclusions of
law, respondent Jones is ORDERED to pay the sum of $250 within· 40
days of the date of this decision for the violation found herein
to have occurred.
"". ~/

z;fe?ptf~

'l E. Vail
nistrative Law Judge
Distribution:
J. Philip Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203
(Certified Mail)
John A. Snow, Esq., Vancott, Bagley, Cornwall & McCarthy, 50 s.
Main, Suite 1600, Salt Lake City, Utah 84110-3400
(Certified Mail)
/blc

1958

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

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

v.

CIVIL PENALTY PROCEEDING

.
.

Docket No. WEST 84-.21"'."M
A.C. No. 05-03890-0~501
Mackey No. 444 Mine

ELK CREEK GOLD MINES CO.,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,.
for Petitioner1
Mr. Lowell E. Jarratt, President, Elk Creek Gold
Mines Co., Lakewood, Colorado, prose,
for Respondent.

Before:

Judge Carlson
GENERAL STATEMENT

This case arose out of the inspection of an underground
gold and silver mine near Black Hawk, Colorado, owned by Elk
Creek Gold Mines Co. (Elk Creek). A hearing on the merits was
held on May 23, 1984 in Denver, Colorado under provisions of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seg. (the Act). The Secretary seeks civil penalties for four
alleged violations of standards promulgated under the Act.
The parties waived the filing of post-hearing briefs.
ISSUES
The essential questions to be decided are:
Cl)

Whether respondent operator was r~sponsible
under the Act for any or all of the violations
alleged, or whether the liability, if any,
lay with an independent contractor.

<2>

To the extent that respondent may have been
responsible, whether the alleged violations
occurred, and, if so, what civil penalties are
appropriate.

195j

REVIEW AND DISCUSSION OF THE EVIDENCE
Background
On September 22 and 23, 1983, Inspector Arnold P. Kerber,
the Secretary's sole witness, visited the site of the Mackey
No. 444 Mine, where this case arose. The evidence shows that
a report from a State of Colorado mine inspector prompted the
Mackey's federal inspection. It further shows that at the time
of inspection the mine, closed for many years, was being reopened by Elk Creek Gold Mines Co., the respondent. This small
corporation had been formed to take over the Mackey and restore
production. Mr. Lowell E. Jarratt, respondent's only witness at
the hearing, is president of the company and general manager of
the mine.
On the date of Kerber's inspection, shaft driving was the
only activity at the site.
(The original shaft had collapsed
many years before.)
Kerber's four citations involved respondent's failure to
register the mine as required by the Secretary's standardsi
failure to post warning signs near the explosives magazinei
failure to post warnings near a fuel tank, and a failure to
provide a berm at the edge of a dump site.
The Contractor Defense
It is undisputed that Elk Creek had entered into a written
agreement with a Ted Anderson to drive the new 300 foot shaft
(respondent's exhibit 1). Signed on June 10, 1983, the contract
provided that Anderson would provide the miners, pay them, and
provide certain tools and personal equipment to be used by them.
No one disputes that the fuel tank and explosive magazine
were owned by Elk Creek, as was the small front-end loader used
to remove muck from the shaft.
On the two successive days of his inspection, Inspector
Kerber observed two miners blasting in the shaft and removing
muck with Elk Creek's front-end loader. These men told Kerber
that neither was in charge, but that both were working for Ted
Anderson. Kerber saw these men dumping muck over an embankment,
the edge of which was not protected by a berm.

1960

The other men were seen by the inspector at various times
attempting to start a scoop tram. Both identified themselves as
Elk Creek shareholders.
At the time of the inspection, Ted Anderson was not at the
mine site. Mr. Jarratt acknowledged at the hearing that Anderson
was in Florida during most of the shaft driving operation, and
that Elk Creek was greatly displeased with Anderson's performance
on the contract.
With respect to the magazine, fuel tank, and the berm
citations, Elk Creek contends that the full responsibility for
compliance lay with Anderson as an independent contractor. As
Mr. Jarratt put it:
"I wasn't watching those things because it
was his [Anderson's] responsibility, so I'm asking that these
charges be dismissed." (Transcript at 35.)
The relationship between Elk Creek and Anderson had the
earmarks of an agreement between an owner and an independent
contractor. The Act is enforceable against mine "operators."
By definition, independent contractors are "operators," 30 U.S.C.
§ 802(d).
The Secretary of Labor has promulgated a regulation
which provides guidelines to his inspectors as to when to cite
the owner-operator, when to cite an independent contractor, or
when to cite both. 30 C.F.R. § 45, Appendix A. The guidelines
are lengthy, but generally give weight to such matters as which
party contributed to the creation of a violation, whose employees
are exposed to the hazards flowing from a violative condition,
and who had control over the conditions that needed abatement.
In Phillips Uranium Corporation, 4 FMSHRC 549 (1982), the
Commission majority took the position that citations issued
against owners may be dismissed where the Secretary's decision
to proceed against the owner, rather than a contractor, was
not consistent with the purposes and policies of the Act. The
Act, according to the majority, mandates that contractors who
created violative conditions and who are in the best position to
eliminate the attendant hazards and to prevent their recurrence,
should be the subject of the Secretary's enforcement efforts.
In the present case it is clear that the duty to post
warning signs at the powder magazines was that of the owner,
Elk Creek. It owned the magazine and supplied the powder.
Moreover, the two shareholders working outside the portal were
plainly "miners" under the broad definitions of the Act, and
must be considered Elk Creek's employees since they were not
Anderson's. An explosion of the magazine would have endangered
them as well as Anderson's two miners at the site. For these
reasons, the citation was properly issued to Elk Creek.

1961

Liability for failure to post proper warning signs at the
fuel storage area would likewise fall upon Elk Creek, as owner of
the tank. A party to a venture who agrees to provide a facility
for use of a contractor must surely comply with any regulations
pertaining- to warning signs or placards required for safe use of
the facility.
Here, too, Elk Creek was the proper recipient of
the citation.
As to the berm citation, only shaft workers paid by Anderson
were apparently involved in dumping muck down the unprotected
embankment. The alleged violation was unrelated to the condition
of the machine or machines furnished by Elk Creek. Whether the
berm should be furnished by Elk Creek or its contractor is at
least arguable. In this case, however, the evidence showed that
Anderson, the contractor, had virtually abandoned his responsibility in managing or supervising the shaft operation. Rather
plainly, this included safety aspects of the project. Neither
of the two Anderson men had any supervisory authority, and the
blasting and mucking were proceeding willy-nilly, with no
apparent direction from anyone. Elk Creek knew of this unfortunate state of affairs, and although displeased, permitted it to
continue. The owner-operator has overall responsibility for
safety compliance, and may not divest itself of that responsibility by engaging a contractor who fails to exert any effort
toward safety. When it became clear, as it did before the
inspection, that Anderson was not at the site and that no one
else was exerting any true authority over shaft operations, the
full safety responsibility reverted to Elk Creek. No other
result is consistent with the intent of the Act. The berm
citation was properly issued to Elk Creek.
Violations
We now turn to a consideration of whether the violations
occurred.
Citation 2098576 - The Magazine
During his inspection, Mr. Kerber noted that Elk Creek's
magazine, which contained explosives, had no warning signs
indicating that it was a magazine. This testimony was not
disputed. He cited the company with a violation of the standard
published at 30 C.F.R. § 57.6-20(i), which provides that
magazines shall be:
[p]osted with suitable danger signs so
located that a bullet passing through
the face of the sign will not strike
the magazine.
The violation is established.

1962

Citation 2098578 - The Fuel Area
.
According to Inspector ~erber, a fuel storage area with a
large tank and several fuel barrels displayed no warning signs
against smoking or open flames. This area was used to refuel
vehicles at the mine, he testified. This evidence, too, was
undisputed by Elk Creek. The inspector cited the company for a
violation of 30 C.F.R. S 57.4-2. That standard provides:
Signs warning against smoking
and open flames shall be posted
so they can be readily seen in
areas or places where fire or
explosion hazards exist.
That motor fuels offer an explosion hazard is beyond cavil.
The violation is established.
Citation 2098579 - The Berm
Inspector Kerber watched as one of the miners driving the
new shaft steered a small, diesel powered front-end loader to the
brink of a steep bank to dump muck from the bucket. The drop, he
testified, was about 100 feet. No berm (protective ridge) or
other barrier had been built at the edge of the bank to protect
vehicles from slipping over. The bucket of the loader extended
past the edge during dumping. Should the vehicle go over the
edge, Kerber believed, the driver could suffer fatal injuries.
He therefore cited Elk Creek with a violation of 30 C.F.R. §
57.9-54. That standard provides:
Berms, bumper blocks, safety hooks,
or similar means shall be provided
to prevent overtravel and overturning
at dumping locations.
The truth of the inspector's testimony was uncontested.
violation is established.

The

Citation 2099781 - Notification of Legal Identity
The Secretary's regulation published at 30 C.F.R. § 41.11
requires that all mine operators file written notification of
their nlegal identityn with the district manager for the Mine
Safety and Health Administration in the district where the mine
is located. The notice must be filed within 30 days of the
opening of a new mine and, for a corporate operator, must provide
extensive information.

196J

The inspector found no record of a filing by Elk Creek, and
therefore issued a citation for a failure to register under the
regulation.
Elk Creek acknowledges that it failed to file a formal
notification. It defends, however, on the basis that Mr. Jarratt
personally visi.ted the MSHA district manager on or about June 10,
1983 to inquire about requirements under the Act. The manager
provided certain materials to him, but at no time mentioned the
notification requirement.
Although Mr. Jarratt's visit to the manager's office
demonstrated an admirable desire to comply with the government
rules, it cannot serve as the basis for an outright dismissal of
the citation. There is no evidence that the manager deliberately
misled Jarratt. The requirement of the notification rule is
absolute, and constitutes an essential element of the entire
enforcement scheme under the Act.
Additionally, the evidence indicates that more than 30 days
had elapsed since work at the mine site had begun. Arrangements
for the reopening had begun in June, and by the time of the
inspector's visit the shaft had progressed some 230 feet with
only a two-man crew working.
The violation is established. Elk Creek's manifest good
faith is a favorable factor to be weighed in assessing penalty.
Significant and Substantial Charge
The Secretary classified the violation involving the lack
of a berm at the edge of the dump area as "significant and substantial" under section 104(d) of the Act. In Cement Division,
National Gypsum Company, 3 FMSHRC 822 (1981), the Commission
defined such a violation as one where " ••• there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature."
The evidence presented in this case shows that the
Secretary's classification was correct. The absence of a
berm or similar barrier at the brink of the embankment created
a realistic possibility that a miscalculation or moment of inadvertance could cause a front-end loader to go over the edge
while dumping muck. Were that to happen, the equipment operator
could quite clearly suffer serious injury or even death, since
the unrebutted testimony showed that the bank was too steep for
brakes to hold the vehicle, and the fall could be as far as 100
feet. The violation described in citation 2098579 was "significant and substantial."

1964

Penalties
The Secretary seeks a civil penalty of $20.00 for each of
the violations in this case, except for the berm violation, for
which $54.00 is proposed. Section llO(i) of the Act requires the
Commission, in penalty assessments, to consider the operator's
size, its negligence, its good faith in seeking rapid compliance,
its history of prior violations, the effect of a monetary penalty
on its ability to continue in business, and the gravity of the
violation itself.
Virtually all these factors weigh heavily in Elk Creek's
favor. The operation is quite small. Management's belief that
its contractor bore the responsibility for most of the areas in
which the violations arose, though in error, was held in obvious
good faith. For that reason I consider the level of negligence
relatively low. The record showed that the company achieved
prompt abatement of all infractions. The mine had no history of
prior violations. Only the violation involving the lack of a
berm presents any appreciable degree of gravity.
I must note, though, that the Secretary obviously considered these mitigating factors since the penalties proposed
are conservative. Also, there is no evidence that the imposition
of these modest penalties would interfere with Elk Creek's
ability to continue in business.
Having weighed the evidence, I must hold that $20.00 is the
appropriate penalty for the failure to post warning signs at
the magazine (citation 2098576), and that $20.00 is likewise
appropriate for the lack of warning signs in the fueling area
(citation 2098578). Because of the greater gravity of the berm
violation, (citation 2098579), the proposed penalty of $54.00 is
appropriate.
Owing to the exemplary efforts made by Elk Creek to
learn of the government's requirements upon reopening a mine,
only the most minimal penalty is warranted for the failure to
file a formal notification. I conclude that a sum of $5.00 is
warranted.

196 u-

CONCLUSIONS OF LAW
Upon the entire record, and in conformity with the factual
findings embodied in the narrative portion of this decision, it
is concluded:
(1)

That the Commission has jurisdiction to decide
the matter.

(2)

That respondent Elk Creek was the proper recipient
of the citations issued by the Secretary.

(3)

That Elk Creek violated the standard published at ·
30 C.F.R. S 57.6-20(i) as charged in citation 2098576,
and that $20.00 is the appropriate penalty for the
violation.

(4)

That Elk Creek violated the standard published at
30 C.F.R. S 57.4-2 as charged in citation 2098578,
and that $20.00 is an appropriate penalty for the
violation.

(5)

That Elk Creek violated the standard published at
30 C.F.R. § 57.9-54 as charged in citation 20985791
that the violation was "significant and substantial"1
and that $54.00 is the appropriate penalty for the
violation.

(6)

That Elk Creek violated the rule published at
30 C.F.R. § 41.11 as charged in citation 2099781,
and that $5.00 is an appropriate penalty for the
violation.
ORDER

Accordingly, the four citations in this case are ORDERED
affirmed, and Elk Creek is ORDERED to pay a total civil penalty
of $99.00 within 30 days of the date of this decision.

John A. Carlson
Administrative Law Judge

1960

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)
Mr. Lowell E. Jarratt, Elk Creek Gold Mines Company, 815 Kendall
Street, Lakewood, Colorado 80214 <Certified Mail)

1967

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

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

"U"'

M 1U

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-111-M
A.C. No. 35-00540-05501

v.

Ross Island Plant

ROSS ISLAND SAND & GRAVEL
COMPANY,
Respondent
DECISION
Appearances:

Robert A. Friel, Esq., Office of the Solicitor, U.S.
Department of Labor, Seattle, Washington,
for Petitioner1
Mr. R.G. Tuttle, Corporate Director, Ross Island
Sand and Gravel, Portland, Oregon,
appearing Pro Se.

Before:

Judge Vail

STATEMENT OF THE CASE
In the above proceeding, the Secretary of Labor on behalf of
Mine Safety and Health Administration CMSHA), seeks civil
penalties against the respondent for two alleged violations of
mandatory safety standards. The violations were charged in two
citations issued on June 1, 1983, which violations were not
considered significant and substantial, and penalty assessment of
$20.00 each was proposed. The respondent initially contested the
citations.
On September 6, 1983, respondent wrote the Secretary proffering a check in the sum of $40.00 to settle the above matter.
On September 19, 1983, the Secretary submitted a Motion to
Approve Settlement to the Commission proposing that the $40.00 be
accepted in full settlement. The motion was denied and an order
was issued to the parties to submit additional information.
Additional information was submitted and again the settlement
proposal was denied. The case was then assigned to this writer
for hearing.
A further supplemental petition for settlement was submitted
?n May 10, 1984, which was denied by order dated May 10, 1984.

1968

The case was heard on the merits on June 22, 1984. Robert
W. Funk, MSHA inspector testified on behalf of petitioner. Paul
T. Godsil testified on behalf of respondent. Post hearing briefs
were waived.
FINDINGS OF FACT
AND CONCLUSIONS OF LAW
Respondent is a medium sized operator. It employes approximately 15 miners at its Ross Island Plant. Payment of a
reasonable penalty will not impair respondent's ability to
continue in business. Respondent demonstrated good faith in
correcting the two cited conditions (Transcript at 13, 14). In
the previous 24 months, respondent had no citations.
Respondent admits that the two violations cited on June 1,
1983, in citation Nos. 2225917 and 2225918 existed. However, it
contests the negligence and gravity of conditions involved in the
violations (Tr. at 14).
Citation No. 2225917
On June 1, 1983, a citation was issued to the respondent
alleging a violation of 30 C.F.R. § 56.11-1. Respondent was
cited for a work deck area behind the scalper screen being
littered with wood and other debris.
In respondent's mining process, material is dredged from a
lagoon, loaded on barges and clam-bucketed onto a hopper. The
scalper screen is at the top of a hopper and collects debris in
the material where it starts to be processed. A miner (stick
picker) stands on a platform and picks wood and debris from this
screen as it accumulates. The wood and debris is laid in a pile
on the platform where the stick picker works. The platform on
which the miner works is also a walkway approximately 8 feet wide.
Only one person, the stick picker, is on this platform and exposed to the danger of tripping and falling if debris or wood
accumulates. The inspector testified that from the size of the
pile, he estimated it to be an accumulation of two days work. An
injury from tripping could cause lost workdays or restricted
duty.
Respondent admitted the violation but contends that the pile
of wood and debris is usually cleaned up at a point half way
through the shift. It is argued that removing the debris in this
manner is preferred over throwing the material over the side of
the platform to the ground 40 to 50 feet below.

1969

I find, based on the facts, that there is only one employee
exposed to injury at this location at a given time and the injury
would be from tripping and falling and would in likelihood not be
serious or fatal. Based on a consideration of the criteria in
section llOCi) of the Act, I conclude that an appropriate penalty
for the violation is $20.00.
Citation No. 2225918
On June l~ 1983, Citation No. 2225918 was issued to
respondent alleging a violation of 30 C.F.R. § 56.16-5 due to an
acetylene bottle located in the welding bay not being secured.
Funk testified that he observed one acetylene bottle in respondent's welding bay area which was not in the rack supplied
for storing such bottles. The risk to such a condition is that
if the bottle were to fall over, acetone in the bottle can get
into the valve causing it to deteriorate leaking into the hose
and cause an explosion. Funk admitted that it was unlikely that
an accident would occur.
,
Respondent admitted the above facts but contends that the
bottle was empty. Also, that hoses attached to acetylene bottles
have flashback arresters to eliminate the danger of flashing back
and causing a fire. Based on a consideration of the criteria in
section llO(i) of the Act, I conclude that an appropriate penalty
for the violation is $20.00
CONCLUSION
My assessment of the penalties herein is as follows:
1.

Respondent is a medium sized operator.

2. Respondent was negligent in permitting each of the
violations to occur.
3. A penalty will have no effect on respondent's ability to
continue in business.
4.

Respondent had no prior citations in the past 24 months.

5.

The violations are not serious.

6. Respondent showed good faith in achieving rapid
compliance.

1970

ORDER
Based upon the above findings of fact and conclusions of
law, respondent is ORDERED to pay the total sum of $40.00 for the
two violations found herein to have occurred. I understand
respondent has previously submitted payment of the $40.00 in this
case in satisfaction thereof, and the above captioned matter is
DISMISSED.

~~du//~
Virgil • Vail
Admf strative Law Judge

Distribution:
Robert A. Friel, Esq. Office of the Solicitor, U.S. Department of
Labor, 8003 Federal Building, Seattle, Washington 98174
{Certified Mail)
Mr. R. G. Tuttle, Corporate Director, Ross Island Sand & Gravel
Company, 4315 S. E. McLoughlin Boulevard, P.O. Box 02219,
Portland, Oregon 97202 {Certified Mail)
/blc

1971

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

AUG 101984

333 W. COLFAX AVENUE, SUITE 400 ·
DENVER, COLORADO 80204

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

:

CIVIL PENALTY PROCEEDING

:

Docket No. CENT 81-58-M
A.C. No. 39-00055-05042 A

.
Homestake Mine
:
.
.

JAMES L. MERCHEN,
Respondent

DECISION
Appearances:

J. Philip Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner~
Robert A. Amundson, Esq., Amundson & Fuller,
Lead, South. Dakota,
for Respondent.

Before:

Judge Morris

The Secretary of Labor of the United States, the individual
charged with the statutory duty of enforcing the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seg. (the Act),
charges James L. Merchen with violating Section llO(c) of the
Act.
Section llO(c), now codified at 30 u.s.c.
provides, in part, as follows:

§

820(c),

Whenever a corporate operator violates a mandatory
health or safety standard ••• any director, officer,
or agent of such corporation who knowingly authorized,
ordered, or carried out such violation ••• shall be
subject to the same civil penalties, fine, and imprisonment that may be imposed upon a person under subsections Ca> and Cd).
After notice to the parties a hearing on the merits was held
in Lead, South Dakota on September 28, 1983.
The parties filed post trial briefs.

1972

Issues
The issues are whether respondent violated the Act, and, if
so, what penalty is appropriate.
Stipulations
The parties stipulated that Homestake Mining Company was
cited for violating 30 C.F.R. 57.6-107.1/ Further, Homestake
Mining Company did not contest the citation and paid the penalty.
In addition, it was agreed that this case arises from the same
incident (Transcript at page 48).
Summary of the Evidence
MSHA witnesses included William Donely, Rick Tinnell, Dallas
Tinnell, Wayne Lundstrom and Richard Fischer.
MSHA's evidence shows that Homestake Mining Company, a
corporation, mines gold that is shipped in interstate commerce
(Tr. 7, 8; Exhibit Pl).
On the day shift of January 24, 1980 miners had drilled 25
holes to a depth of 10 feet in a drift round. The following
shift included miners Rick Tinnell and his partner, Ward Sperry.
Tinnell and Sperry drilled 10 to 12 more holes and blasted the
round. When they inspected at the face they saw two misfired
holes (Tr. 15; P3}.
Rick Tinnell discussed the misfires with James Merchen, his
supervisor, who was serving as the acting boss of the night
shift. Merchen told them to fire the holes. At the end of the
shift Sperry didn't explode the misfires because he could not
locate any powder (Tr. 8, 116). Tinnell was unsuccessful in
reblasting and washing out the explosives (Tr. 41, 66-67). The
day shift was advised of the condition CTr. 16).
When the miners returned the next night they found the day
shift had drilled two holes, cut a "V", and blasted. But the
misfires remained (Tr. 16). Merchen suggested Tinnell and Sperry
bar out the misfires CTr. 16).
Merchen further told the miners to drill two holes parallel
to the misfired holes. He pointed to the area where he wanted
the holes drilled. The area was four to six inches from the
misfired holes CTr. 17, 38). Tinnell and Sperry both thought
1/

The standard provides:
57.6-107 Mandatory. Holes shall not be drilled where there
is danger of intersecting a charged or misfired hole.

1973

that drilling this close was unsafe. They discussed it with
Merchen. Tinnell suggested the use of a remote drill but Merchen
refused to use this procedure (Tr. 18, 39, 40).
Rick Tinnell had never been instructed to drill that close
to misfired holes. He felt it was dangerous because the steel
could wander and hit the cap (Tr. 75, 77).
Following -Merchen's instructions Tinnell drilled two holes
approximately 2 1/2 feet deep. The holes were loaded and shot.
This eliminated the misfired holes (Tr. 17, 18).
At the end of the shift Tinnell and Sperry filled out their
time slips for 4 hours at the contract rate and 4 hours at the
day's pay rate (Tr. 62). The miners refused Merchen's request to
change the time slips to 8 hours contract rate CTr. 62).
Dallas Tinnell, father of Rick Tinnell and the president of
the local union, expressed the view that drilling even 12 inches
from misfired holes can be dangerous. When collaring a hole the
new drill could jump and go into the previous hole CTr. 86, 87).
Homestake Mining Company's rules in its safety book suggest
precautions to be taken when miners drill into misfired holes
(Tr. 88-921 Exhibit P7).
Richard Fischer, MSHA's expert, stated it was a violation of
30 C.F.R. 57.6-107 to drill within 12 inches of two misfired
holes <Tr. 100-1071 P9). A definite danger of intersecting the

prior holes existed. Merchen should also have used a manifold
<Tr. 108, 111). A fatality could result if the one and a half
pounds of explosives were ignited (Tr. 112).
Respondent's witnesses were James Merchen, Audrey Merchen
and Joel Waterland.
On January 24, 1980 James Merchen was the relief shift boss
supervising 15 miners (Tr. 124).
Merchen saw the misfires in the center of the round (Tr.
He told Sperry to blast them but the following day the two
holes remained (Tr. 127). Unsuccessful efforts to remove the
misfires included plastering, blasting, and washing them. Also
the prior shift had cut a "V" in an effort to remove the
misfires.
126).

Merchen told Tinnell and Sperry to drill two holes 10 to 12
inches on either side of the misfires (Tr. 128, 129). The men
were instructed to drill parallel to the misfires. Merchen had
used this method before. Tinnell and Sperry suggested drilling

1974

the misfires from the manifold. Merchen denied there was any
discussion with Tinnell or Sperry to the effect that Merchen's
proposal was dangerous (Tr. 129-131, 138).
At the end of the shift a heated discussion took place
between Merchen, Tinnell and Sperry about the pay for the shift.
The miners refused to change their daily reports. A grievance
was later filed over this issue (Tr. 133, 134). The~e was no
discussion about blasting the misfires when the three men argued
over the daily reports (Tr. 134).
Merchen was aware of MSHA's regulations.
ly tell the miners to violate them (Tr. 137).

He didn't knowing-

Merchen, financially "poor", now earns approximately $10 per
hour from Homestake Mining Company. He has a partnership in the
farm but it is "in the red" (Tr. 135, 136, 146).
Audrey Merchen, respondent's sister-in-law, indicated that
at one time after this incident Ricky Tinnell said he "got at
Merchen• (Tr. 163, 165).
Joel waterland, an expert witness for respondent and a
Homestake employee, indicated that Merchen did all he could under
the circumstances. The wires had been checked and the cap was
found to be dead. The miners were unsuccessful in washing out
the misfire, in plaster blasting it, in "V" cutting it CTr. 147,
151-153, 158). In Waterland's opinion no violation of the
regulations occurred. If you drill straight into the face two
feet from a misfire the wall will not break when it is exploded
(Tr. 151-153, 156).
Discussion
The Commission has ruled that the proper legal inquiry for
the purpose of determining corporate agent liability under
Section llO(c) is whether the corporate agent "knew or had
reason to know" of the violative condition. Secretary v. Kenny
Richardson, 3 FMSHRC 8, 16 (January, 1981), aff'd, 689 F. 2d 623
(6th Cir. 1982), cert. denied, 77 L.Ed. 2d (1983). There the
Commission held: ~
If a person in a position to protect safety and
health fails to act on the basis of information that
gives him knowledge or reason to know of the existence
of a violative condition, he has acted knowingly and
in a manner contrary to the remedial nature of the
statute.

1975

For the reasons hereafter noted I credit the Secretary's
evidence on the credibility issues in the case.
The facts here establish that Merchen was the acting shift
boss. The two misfires were brought to his attention. He then
"directed" Tinnell and Sperry, relatively inexperienced miners,
to drill parallel to the misfires. By his own admission the
drilling was to be within 10 to 12 inches to each side of the
misfires (Tr. 128, 129).
The regulation, 30 C.F.R. § 57.6-107, prohibits drilling
where there is a "danger of intersecting a charged or misfired
hole." The danger is especially present here because of the
shattered area behind the face. Merchen relies on his instruction to the miners to drill parallel to the holes. But
since the previous shift had drilled 25 of the 35 or 37 holes
Merchen would have no way of knowing the angle of any of the
holes drilled by the previous shift.
Merchen knew of MSHA's regulation and there was a clear
danger that Tinnell and Sperry could intersect the misfired
holes.
A conflict exists in the testimony of MSHA's expert, Richard
Fischer, and respondent's witness Joel Waterland. I credit
Fischer's testimony. He has a greater degree of expertise than
Waterland (Tr. 102, Exhibit P9). In addition, Homestake's safety
rules support Fischer's testimony. The rules have the following
relevant directives concerning "Drilling":
1. Ground must be closely examined before drilling
to prevent drilling into a "misfired hole" Ca hole
with all or part of its explosive charge left in it)
which might explode and kill the driller and nearby
workmen.
A "missed hole" found in a working place should be
handled as follows:
Ca) If possible put in a new primer and blast the
hole before proceeding with any other work unless
it can be blasted at the end of the shift.
Cb) If this cannot be done, wash the explosive out
of the hole with a stream of water.
Cc) If neither of the above procedures is possible
nor practical, mark the hole plainly with chalk or
crayon and advise your boss of its location. Work
may then proceed under the following restrictions:
Ci) In stopes, do not drill within five feet of
the "missed hole."
Cii) In drifts, crosscuts, or raises, consult your
boss about how to handle the hole. If it is practical, he may tell you to blast out the hole by drill-

1976

ing and blasting another hole at an angle to it.
In
such a case, the collar of the ne~ hole should be at
least two feet from the collar of the "missed hole."
The hole should be collared manually, then drilled _
out by a drill with an automatic feed. Then the
driller will retire from the face and turn the drill
off from the airline valve located at the hose connection to the air pipeline, or from a valve still
further back in the airline if the pipeline end is
too close to the face.
Emphasis added, Exhibit P7, pages 71-72.
The most restrictive circumstances in Homestake's safety
rules require drilling at least two feet from the misfired holes.
Merchen directed the drilling, by his own admission, at a point
10 to 12 inches from the misfires (Tr. 128, 129).
In his post trial brief respondent raises several issues.
He initially asserts MSHA, with this inexplicit regulation, must
prove the holes were drilled in a location where there was a
danger of intersecting a charged or misfired hole.
The Secretary's expert witness establishes this evidence.
He indicated that drilling within 12 inches is hazardous (Tr.
107). It was hard to determine how much the drill might wander
but the danger is definite, in part, due to the underlying
fracture (Tr. 108).
Respondent's post trial brief further asserts that this case
is a classic example of a shotgun approach to "get even" with a
supervisor on the part of a miner and his father's union (Brief,
page 14). I am not persuaded by this argument. There is such a
paucity of evidence on the issue that it would be totally speculative to rest a decision on that facet of the case. Further, I
do not find there was such motivation on the part of Rick Tinnell
and Sperry. If there was such a motivation it would surely have
been mentioned when the three men had a "heated argument" about
the pay for the shift.
A good portion of respondent's brief must be denominated as
an assertion that 30 C.F.R. § 57.6-107 is unconstitutionally
vague.
I agree this standard is not detailed but the Commission has
previously observed, in a similar context, that "many standards
must be 'simple and brief in order to be broadly adaptable to
myriad circumstances.'" Alabama By-Products Corp., 4 FMSHRC
2128, at 2129 (1982). The Commission has measured similar
regulations against the standard of whether a reasonably prudent
person familiar with the factual circumstances surrounding the
allegedly hazardous condition, including any facts peculiar to

1977

//

the mining industry, wo~ld recognize a hazard warranting
corrective action within the purview of the applicable regulation.
See, e.g. Voegele Co., Inc. v. OSHRC, 625 F. 2d 1075, C3d Cir.
1980). By: applying this test to the facts of this case due
process problems stemming from the respondent's asserted lack of
notice are avoided. Cf, United States Steel Corporation, 5
FMSHRC 3, (1983).
For the above reasons the Secretary's petition alleging a
violation of Se~tion llOCc> of the Act should be affirmed.
CIVIL PENALTY
The Secretary proposes a civil penalty of $500 against
respondent for this violation. The Secretary's narrative
findings for a special assessment do not consider respondent's
history nor his financial status.
Considering the statutory criteria, 30 U.S.C. 820Ci), I
believe a civil penalty of $250 is appropriate for this
violation.
Based on the foregoing findings of fact and conclusions of
law stated herein I enter the following:
ORDER
1. Petitioner's petition for assessment of a civil penalty
against respondent James L. Merchen is affirmed.
2. A civil penalty of $250 is assessed for the foregoing
violation.

. tr--r{---

"'-· .

John J. Morris

)~'>~-

Administr~iive Law Judge

Distribution:
J. Philip Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203
(Certified Mail)
Robert A. Amundson, Esq., Amundson & Fuller, 215 West Main, P.O.
Box 875, Lead, South Dakota 57754 (Certified Mail)
/blc

1978

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

SECRETARY OF LABOR,
MINE SAFETY AND .HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
JOHN COOLEY,
Complainant

v.

AUG 151984

DISCRIMINATION PROCEEDING
Docket No. LAKE 81-163-DM
Michigan Division Quarry

.

OTTAWA SILICA COMPANY,
Respondent
.......

;

ORDER
.

On March 30, lg84, the Commission issued its decision in
this matter reaffirming my decision that the complainant
John Cooley was discriminated against in violation of section
105(c) of the Federal Mlrie Safety and Health Act of 1977.
However, the Commission vacated my findings concerning the
back pay and other benefits due the comptainant, and remanded
the case for a recomputation of the amount due the complainant.
In response to my Order of April 16, 1984, the parties have
now filed a stipulation concerning the amount due to the
complainant. Upon review and consideration of this stipulation,
I conclude and find that it complies with the Commission's
remand order, and a copy of the stipulation is attached hereto
and incorporated by reference. However, I take note of two
typographical errors in the materials attached as part of the
stipulation, and they are as follows:
Exhibit B - Back Pay 2nd Quarter 1980 - Should read
$2,168.08, rather than $21.68.08.
Exhibit B - Back Pay 3rd Quarter 1980 $3,542.98. The
amount shown as $3,542.98, rather than
$4,032.05, should be shown as the actual
multiplier for each of the computations
made for the periods reflected as the
interest due the complainant.
Having noted the aforesaid typographical errors, the
corrections noted are incorporated herein by reference, and
the stipulations, as corrected, are herein entered as my final

1979

order in this matter, and the respondent IS ORDERED to make
payment to Mr. Cooley in the amounts shown, and to reinstate
him as provided in my decision.

tf~-

g
• Kout~~
Administrative Law Judge
0

Attachment
Distribution:
David F. Wightman, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn St., 8th Floor, Chicago, IL
60604 (Certified Mail)
Frank x. Fortescue, Esq., Brown, McGlynn & Fortescue, 500 North
Woodward, Suite 320, Bloomfield Hills, MI 48013 (Certified
Mail)

/ejp

1980

-~="

.

UN,ITED STATES DEPARTMENT OF LABOR
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABGR, ;
MINE SAFETY AND HEALTH-7 ADMINISTRATION
(MSHA)
on behalf of John Cooley

~

Docket No.LAKE 81-163 DM

v.
OTTAWA SILICA COMPANY

STIPULATION OF PARTIES ON REMAND
Now comes the parties, by their respective attorneys and, in
response to the March 30, 1984 Decision of the Federal Mine Safety
and Health Review Commission remanding this matter to Administrative
Law Judge George Koutras for a reformulation of the remedial order,

.

enter into the following stipulations.
1.

Administrative Law Judge George Koutras' June 3, 1982

Decision ordered defendant to reinstate John Cooley with back pay
from May 5, 1980.
2.

John Cooley has not been reinstated.

3.

Had John Cooley been reinstated on May 5, 1980, he would

have been furloughed by defendant due to lack of work beginning
April 19, 1982.
4.

John Cooley's furlough would have continued through at

1981

least April 20, 1984.

Pursuant to the collective bargaining agree-

ment between the Michigan Division of .the Ottawa Silica Company
and Teamster's Local Uriion No. 283 (hereinafter Labor Agreement)~
a furlough of more than two years breaks the employee's seniority
and terminates his right to recall with defendant.

5.

For the perior~ay 5, 1980 through April 19, 1982, John

Cooley's wages as a laborer would have totaled $28,738.08.

.. .

6.

For the period May 5, 1980 through April 19, 198?, John

Cooley's vacation pay would have totaled $618.40.
7.

Pursuant tofue Labor Agreement, for the period May 5, 1980

through April 19, 1982, defendant shall make pension contributions
on behalf of John Cooley to the Central States Southeast and
Southwest Areas Pension Fund.

8.

For the period May 5, 1980 through April 19, 1982, the

total of John Cooley's back wages listed in paragraphs 5 throuth
7.herein is $29,356.48 and is broken down by calendar quarters in
the attached Exhibit A.
9.

Under the formula provided in Bailey v Arkansas-Carbona Co.

& Weller, 3 MSHC 1152 (Dec. 1983), interest on the $33,053.17 in
back wages through June 30, 1984 is $13,226.45.

The interest

computations are contained in the attached sheets labeled as Exhibit B.

10.

Interest will continue to accumulate under the Arkansas-

1982

Carbona formula until such time as the back wages and accumulated
interest are paid in full.

Respectfully submitted,
OTTAWA SILICA COMPANY
By:

-i_ _

L~.~ ,.~

FRANK X. FORTESCUE, ESQ.
Brown, McGlyna & Fprtescue
500 N. Woodward, Suit~ 320
Bloomfield Hills, MI. 48013

FRANCIS X. LILLY
Solicitor of Labor
JOHN H. SECARAS
R~ional'l Sol ~c1,t·or

/ ; . .j/.
I/ ~ />t ~
.!~~/'~,,/·

\.DAVID WIG~TMAN
Attorney

Attorneys for Raymond J. Donovan,
Secretary of Labor, United States
Department of Labor

1983

EXHIIHT A
Period

Wages

I

Vacation

Total
2,168.08

4/1/80-6/30/80

2,168.08
2,168.08

7/1/80-9/30/80

3.,490. 08

10/1/80-12/31/80

3,694.96
• 3,694.96

3,694.96

'l/1/81-3/31/81

3,742.72
•
3,801.20
3,801.20

3,742.72

4/1/81-6/30/81

8 hrs • x 6.61
. .$52. 88

3,542.96

3,801•.20

;

-16 hrs. x 7.31
$116.96

3,976.64

7/1/81-9/30/81

3,8se.68

10/1/81-12/31/81

4,072.48

4,072.48

1/1/82-3/31/82

3,075.84

3,075.84

4/1/82-6/30/82

833.04

56 hrs. x 8.01
$448.56

1,281.60

$28,738.08

$618.40

$29,356.48

TOTAL

1984

EXHIBIT B

1985

Back Pay 2nd Quarter 1980 $21.68 •. 08

3rd Quarter 80

2,168.08.x 91 days x .0003333

4th Quarter 80

2·;168. 08 x· 90 days x .0003333

1st Quarter 81
2nd Quarter 81

2,168.08 x 90 days x .0003333
2,168.08 x 90 days x .0003333

3rd Quarter 81

2,168.08 x 90 days x .0003333

4th Quarter 81

.

.-

-

2;,168.08 x 90 days x .0903333

.

1st Quarter 82

2,168-.08 x 90 days x .0005555

2nd Quarter 82

2,168.08 x 90 days x .0005555

3rd Quarter 82

2,168.08 x 90 days x .0005555

=
=
=

65.758516

=
=
=

65.035895

=
=
=

TOTAL

65.035895
65.035895

65.035895
65.035895
108.393159
108.393159
108.393159

716.12

Back Pay 3rd Quarter 1980 3542.96

4th Quarter 80
1st Quarter 81
2nd Quarter 81
3rd Quarter 81
4th Quarter 81
1st Quarter 82
2nd Quarter 82
3rd Quarter 82

=
4,0~2.05 x 90 days x .0003333
=
4,032.05 x 90 days x .0003333 =
. 4' 032. 05 x 90 days x. .0003333· =
4,032.05 x 90 days x .0003333 =
.
4,032.05 x 90 days x .0005555 =
4.;, 03.2. 05 x 90 days x .0005555 =
4,032.05 x 90 days x .0005555 =
4,032.05 x 91 days x .0003333

--

TOTAL

107.45903
106.27817
106.27817
106.27817
106.27817
1

177 .13 028
177.13028
177.13028

1063.96

1986

Back Pay 4th Quarter 1980 $3,694.9~ ·

1st Quarter 81

3,694.96 x 91 days x .0003333

=

112.06924

2nd Quarter 81

3 ,·694. 96 x 90 days x .0003333

•

. 110.83771

3rd Quarter 81

3,694.96 x 90 days x .0003333

•

110.83771

4th Quarter 81

• 3,694.96 x 90 days X. .0003333

•

110.83771

lst Quarter 82

3,694.96 x 9'0 days x .0005555

•

184.72952
.

2nd Quarter 82

3,694.96 x 90 days x .0005555

=

184.72952

3;,694. 96 x 90 days x .0005555

=

184.72952

3rd Quarter 82

.. .

•

....

:.

998.77

TOTAL

Back Pay 1st Quarter 1981 $3,742.72

2nd Quarter 81

3,742.72 x 91 days x .0003333 =·

113.51782

3rd Quarter 81

3,742.72 x 90 days x .0003333 =

112.27037

4th Quarter 81

3,742.72 x 90 days x .0003333 =

112.27037

1st Quarter 82

. 3,742.72 x 90 days x. .0005555 =

187.11728

2nd Quarter 82

3,742.72 x 90 days x .0005555 =

187 .11.728

~

I

3rd Quarter 82

TOTAL

3,742.72 x 90 days x .0005555 =

187.11728

Back. Pay 2nd Quarte~ 1981 $3801.20

3rd Quarter 81

3,801.20 x 91 day·s x .0003333 =

115.29153

4th Quarter 81

3., 801. 20 x. 90 day_s x .0003333 =

114.02459

1st Quarter 82

3,801.20 x 90 days x .0005555 =

190.04099

2nd Quarter 82

3,801.20 x 90 days x·· • 0005555 =

190.04099

3rd Quarter 82

3,S.01.20 x 90 days x .0005555 =

190.04099

TOTAL

799.44

Back Pay 3rd Quarter 1981 $3,976.64

4th Quarter 81

3,976.64 x 91 days x .0003333

=

120.61268

1st Quarter 82

~,976.64

x 90 days x .0005555

=

198.81211

2nd Quarter 82

3,976.64 x 90 days x .0005555

=

198.81211

3rd Quarter 82

3,976.64 x 90 days ~ .0005555

=

198.81211

TOTAL

717.05

Back Pay 4th Quarter 1981 $4,072.48

1st Quarter 82

4,0~2.48

x 91. days x .0005555

=

205.86590-

2nd Quarter 82

4,072.48 x 90 days x .0005555

=

203.60363

3rd Quarter 82

·4,072.48 x 90 days x .0'005555

=

203.60363

TOTAL

1988

613.07

Back Pay 1st Quarter 1982 $3~075.84

2nd Quarter 82

3,p75.84 x 91 days X .0005555

=

.155. 48524

3rd Quarter 82

a,075.84 x. 90 days x .0005555

=

153.77662

TOTAL

309.26

Back Pay_ 2nd Quarter 1982 $1,281.60

3rd Quarter 82

1,281.60 x 91 days x .0005555

=

64.78

Back Pay $29,356.48

4th Quarter 82

29,356.48 x 90 days x .0005555 =

1,467.6772

1st Quarter 83

• 29,356.48 x 90 days x .0004444 =

1,174.1417

2nd Quarter 83

29,356.48 x 90 days x .0004444 =

1,174.1417

3rd Quarter 83

29,356.48 x 90 days x .0003055 =

807.'1564

4th Quarter 83-

2-9,~56.48

x 90 days x .0003055 =

807.1564

1st Quarter 84

29,356.48 x 90 days x .• 0003055 =

807.1564

2nd Quarter 84

29;356.'48·x 90 days x .0003055 =

807.1564

.

·-

TOTAL

7,044.59

1989

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

AUG .t ~~: '1984
JERRY L.

BLACI<BU~,

v.

.•

Complainant

U.S. STEEL MINING CO.... , ;NC. ,
Respondent

DISCRIMINATION PROCEEDING
Docket No. WEVA 83-242-D
HOPE CD-83-18

•

UNITED MINE WORKERS OF
AMER:J:CA,
.l'.9tervenors
ORDER OF DISMISSAL
Before:

Judge Kennedy

For good cause shown, it is ORDEP.ED' that complainant's
motion to withdraw the captioned discrimination complaint
be, and hereby is, GRANTED and the case DISMISSED. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1153 (
4).

Distribution:
Mr. Jerry L. Blackburn, P.O. Box 10, Wolf Pen, WV
(C~rtif ied Mail)

24896

Louise Q. Symons, Esq., U.S. Steel Mining Co., Inc., 600 Grant
St., Pittsburgh, PA 15230 (Certified Mail)
Mary Lu Jordan, Esq., UMWA, 900 15th St., NW, Washington, DC
20005 (Certified Mail)

/e}p

1990

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
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),
Petitioner

Docket No. WEST 84-33-M
A.C. No. 42-00800-05504

v.

Moab Mill

ATLAS MINERALS,
Respondent
DECISION APPROVING SETTLEMENT
Appearances: James H. Barkley, Esq., Robert J. Lesnick, Esq., and
Peggy Miller, Esq., Office of the Solicitor, Q.S.
Department of Labor, Denver, Colorado,
for Petitioner;
James A. Holtkamp, Esq., and John A. Snow, Esq.,
Vancott, Bagley, Cornwall & McCarthy, Salt Lake
City, Utah,
.
for Respondent.
Before:

Judge Morris

This is a civil penalty proceeding initiated by the
petitioner against the respondent in accordance with Section
llO(a) of Fed~ral Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(a).
The civil penalty is for the alleged violation of a
-mandatory safety standard promulgated pursuant to the Act.
At a hearing in Moab, Utah on August 23, 1984, in related
cases the parties advised the judge that they had reached an
amicable settlement. The parties now seek approval of their
proposed settlement.
Citation 2008174 alleges a violation of 30 C.F.R.
The citation proposed an original penalty of $300.
The parties now seek to amend the citation by changing its
designation from "104-d-l" to "104-a." The parties agree the
original penalty should be assessed.

S 57.9-88(a).

Discussion
In support of the motion petitioner states he agrees with
and relies on the assessment made by his Off ice of Assessments in
evaluating the statutory criteria for assessing the penalty.

1991

I find the proposed settlement is reasonable and it should
be approved.
Accordingly, I

enter the following:
ORDER

1.

The settlement agreement is approved.

2. The citation is amended to change the designation from
"104-d-l" to "104-a."
3.

Citation 2008174 and the penalty of $300 are affirmed.

4. Respondent is ordered to pay the sum of $300 within 40
days of the date of this order.

< -:~

,>;.ivv~

John J. Morris
Administrative Law Judge
Distribution:
James H. Barkley, Esq., Robert J. Lesnick, Esq., and Peggy
Miller, Esq., Office of the Solicitor, U.S. Department of Labor,
U.S. Department of Labor, 1585 Federal Building, 1961 Stout
Street, Denver, Colorado 80294
(Certified Mail)
James A. Holtkamp, Esq., and John A. Snow, Esq., Vancott, Bagley,
Cornwall & McCarthy, 50 South Main, Suite 1600, Salt Lake City,
Utah 84144
(Certified Mail)
/blc

1992

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLQPR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 221:>41

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 84-10
A. C. No. 46-01283-03526

.,.

v.

Hampton No. 3 Mine

WESTMORELAND COAL COMPANY,
Respondent
DECISION
Appearances:

Kevi·n c. McCormick, Esq., Office of the Solicitor,
U.· S. Department of Labor, Arlington, Virginia,
for Petitioner;
F. Thomas Rubenstein, Esq., Big Stone Gap, Virginia,
for Respondent.

Before:

Judge Steffey

A hearing in the above~entitled proceeding was held on
June 12, 1984, in Beckley, West Virginia, pursuant to section
lOS(d), 30 U.S.<:;-·§ 815(d), of the Federal Mine Safety and
Health Act of 1977. At the conclusion of presentation of evidence by both parties, I rendered a bench decision ..
Before the transcript of the hearing had been received,
counsel for respondent filed on June 22, 1984, a motion for
reconsideration of the bench decision. A copy of the motion
for reconsideration was served on counsel for the Secretary of
Labor. The Secretary's counsel filed on August 8, 1984, a
letter in which he stated that he did not intend to submit a
reply to respondent's motion for reconsideration.
The substance of my bench decision is first set forth
below (Tr. 274-289). Thereafter, respondent's motion for reconsideration is denied for the reasons given.
This proceeding involves a petition for assessment of
civil penalty, alleging a violation of 30 C.F.R. § 75.200 by
Westmoreland Coal Company. The issues in a civil penalty case
are whether the violation occurred and, if so, what civil penalty should be assessed, based on the six criteria set forth
in section llO(i) of the Act.
Before I form a conclusion regarding the question of
whether a violation occurred, I shall make-some findings of
fact which will be set forth in enumerated paragraphs.

1993

1. I~spector Baisden went to the Hampton No. 3 Mine on
September 16, 1982. On his inspection"'he was accompanied by
the chairman of the safety committee, Charles Egnor. The mine
foreman was ~lso with the inspector and Egnor when they began
their inspection, but the mine foreman had to check into a malfunction of the tailpiece on the conveyor belt. Consequently,
the inspe.ctor apd Egnor went to the face area unaccompanied by
the mine foreman.
·
-2. When the inspector and Egnor were close to the face
of the No. 3 entry, the inspector noticed that there was no
curtain in the crosscut to the right of No. 3 entry. The inspector investig~ted the absence of the curtain and found that
there was a hole on the right side at the face of the crosscut,
and he concluded that that made the need for installation of a
curtain unneces~ary. But while he was examining that aspect
of the ventilation~ ·he noticed that the crosscut had been developed for a distance which appeared to be greater than could
have been cut with a continuous-mining machine without the
machine's operator having proceeded inby permanent supports.
3. 'The inspector determined that ··a measurement of the
area should be made in order for him to ascertain whether the
operator of the continuous-mining machine had proc~eded inby
permanent supports. Therefore, he tied a hammer to the cloth
tape measuring device that he carried with him and he tossed
the hammer througn the hole at the end of the crosscut and he
asked Egnor to go to the No. 4 entry, into which the hole· extended, and retrieve the hammer, and thereby enable the inspector to make an accurate measurement. Egnor was cautioned to
mate sure he did not go out from under permanent supports.
4. Egnor proceeded outby the No. 3 entry through the
crosscut outby the one in which the measurement was made and
proceeded into the No. 4 entry and came to the place where the
hole had been made near the face of the No. 4 entry. Egnor
held the tape and it was determined that the distance from the
last permanent support in the crosscut through the hole in the
end of the crosscut was 23 feet, but the inspector wanted to
get a measurement only to the most inby place in the crosscut
from which coal had been extracted by the continuous-mining
machine. Therefore, he withdrew the tape after Egnor had untied it from the hammer, and when the tape came out of the
hole and fell on the mine floor, the inspector made a determination that the distance from the face of the crosscut to the
second roof bolt from the right of the crosscut was 22 feet.
The inspector believed that the second bolt from the right rib
in the crosscut was in line with the other three bolts in that
same line of bolts and therefore did not take additional
measurements.

1994

5. Tl:l'e operator's roof-control plan provides, "Continuous miner runs are made on alterna~e siaes until the face has
been advanced a maximum distance which will permit the miner
operator to ~emain under bolted roof and not advance the controls of the miner .inby the last row of bolts." Therefore,
the inspector wrote Order No. 2037676, which is exhibit 2 in
this proceeding~ The condition _or practice stated in Order
No. 2037676 is as follows:
·
The last.open crosscut between No. 3 entry and No. 4
entry has been mined 22 feet deep. From cutter head
to the controls measures 19 1/2 feet, putting the
controls of the miner inby the last row of permanent
support. This crosscut was mined on 2nd shift,
9/15/82. The Onshift and Daily Report Book indicates -Roge~ McMicken as section foreman on said
shift. See page 19, line 1 of approved plan or
Drawing 1, page 17 of approved plan.
6. Raymond Watts was the operator of the continuousmining machine on the second shift, that is, 4:00 p.m. to midnight on September 15, 1982, when the condition described by
the inspector occurred. Watts had previously been working in
1979 when a roof fall occurred in the Hampton No. ~ Mine, at
which €ime two miners were killed and Watts narrowly escaped
being killed himself. The occurrence was so unsettling that
Watts was unable....t~ work for approximately 14 months. Therefore, he testified in this proceeding that it was not his·
practice or intention ever to do his job in a manner which
would expose him or anyone else to possible injury. · . He testifi~ that when he advanced the continuous-mining machine into
the crosscut here at issue, he found that it was off center
and that it was necessary for him to move his continuous-mining
machine at an angle to the right rib in order to straighten the
crosscut. He stated that it was his practice to look through a
screen at the front of the canopy under which he sits and that
when he saw the last roof bolt, or the roof bolt in the last
row of permanent supports come into view in that screen, that
he stopped running the continuous-mining machine because that
way he knew he would not go inby the last row of supports. He
testified that that was what he recalled having done on the
night of September 15. He did recall that when he finished
cleaning up the entry and backed his continuous-mining machine
out of the crosscut he did see a hole in the face of the crosscut.
7. When Watts came to work on the following day he learned
from the superintendent of the mine that a withdrawal order had
been written on the day shift because of his having advanced the
controls of the miner inby the last row of permanent supports.

1995

Watts was very much surprised at hearing he had been charged
with having done that and expressed- his--doubt that it was so.
The roof-control plan was read to him and it was explained that
the company was considerably upset about whether he had gone
inby the last row of permanent supports.
8.
Roger Bias_ was also working on the evening shift on
September 15 and on that particular evening he acted as the
helper for the operator of the continuous-mining machine. He
has no specific recollection of whether the mining machine went
inby the last row of permanent supports, but he said that one
of his duties was to help the operator of the continuous-mining
machine in order to see that he did not go inby the last row of
supports and, so far as he could recall, Watts did not go inby
the last row of permanent supports. He also recalls that there
was a hole ..at the face of the crosscut, but he did not see it
until after Watts had cleaned up the crosscut and had backed
out the continuous-mining machine.
9.
Roger McMicken was the section foreman on the evening
of September 15, 1982. He testified that he saw a hole at the
face of the crosscut when he was making' his last check of the
section, but he did not notice anything unusual other than that.
He was not aware that a charge had been made again9t Watts for
going 1nby the last row of permanent supports until he reported
for work the following day and also was advised by the mine
superintendent that the withdrawal order had been written. One
of the actions McMicken made was to go into the section and
measure the distance between the last row of bolts and the face
of the crosscut and his measurements showed that the .distance
wa~l9 feet from all of the bolts, except the first and second
bolts from the right rib. He found the distance from the second
bolt from the right rib to the face to be 22 feet, the same distance measured by the inspector, but he said that he did not
think that the second bolt was in line with the others and that
he believed it was outby the others by a considerable distance.
That misalignment, together with the hole at the face of the
crosscut, in McMicken's opinion, accounted.for the fact that
The distance from the
that particular measurement was 22 feet.
first bolt from the right rib to the face was measured by
McMicken as being 20 feet {Exh. B) •
10. Richard Sparks was the operator of a scoop on the day
shift on September 16, 1982. He testified that he was operating the scoop to clean up the No. 4 entry and that he was so
engaged at the time that Egnor came into the No. 4 entry and
went up to the face of the No. 4 entry in order to assist the
inspector in the measurement which the inspector made prior to
issuing his withdrawal order. Sparks claims that he saw Egnor
put his hand on the rib and reach clear through the hole in the
end of the crosscut in order to retrieve s01:nething, but he did

1998

-

not know exactly what Egnor was doing and did not see the hammer
in Egnor's.hand and did not know what had transpired until he
was later advised that Egnor had been at the face of the No. 4
entry in ordsr to· assist the inspector in the measurement.
Sparks also testified that Jake Henry was a continuous-miner
helper on the day shift and it is claimed that Henry was in the
crosscut when the inspector made his 22-foot measurement and
that Henry observed Egnor reach· ·through the hole in the end of
the crosscut. Sparks did not see Egnor walk past him in the
No. 4 entry and only observed him, he says, after he was already
situated at the hole on the left side of the No. 4 entry.
Sparks accounted. for his failure to see Egnor walk past him by
stating that he hp.s to move back and forth in the entry in his
process of cleaning with the scoop. Egnor testified on rebuttal
that no one was in the No. 4 entry when he went there to assist
the inspector a~d that he would have remembered it if anyone
had been running a .. scoop because he would have had to have
flagged down the scoop operator in order to go past him.
11. Jim Kiser is the manager of Westmoreland's health and
safety program and he, among other duties, conducts accident investigations of all serious violations which are alleged by any
of MSHA's inspectors. Kiser considered the withdrawal order
here issued to be a serious one because it was written under the
unwarrantable-failure provisions of the Act and is, therefore,
considered to be more serious than an ordinary citation might
be. His investi~ation of the matter took a couple of weeks to
complete and resulted in a conclusion by Kiser that Westmoreland' s personnel were not at fault in the occurrence and consequently did not recommend that any of the people involved be
di~ciplined, although it is Westmoreland's practice to discipline people who do violate the mandatory safety standards if
the investigation shows that violations occurred.
Counsel for the Secretary and Westmoreland m~de concluding
arguments and they both stressed the fact that there are credibility problems involved in the testimony.
The Secretary's counsel emphasized the fact that the inspector has no particular reason to cite a violation he has not
actually seen, that the chairman of the safety committee has no
reason to be biased against the company for which he works, and
that their testimony should be given greater weight than that of
Westmoreland's witnesses who were obviously aware of the fact
that they might receive some discipline if they were considered
to be at fault in the issuance of Order No. 2037676.
Westmoreland's counsel stressed the fact that Watts is an
individual who has an excellent reputation in the company and
the fact that the section foreman has not previously known him

199~,

-

to violate; 1 any provisions of the roof-control plan and that
Watts, having just nearly escaped deatlt himself in a roof fall,
would not be one who would have knowingly violated the roofcontrol plan~ Counsel for Westmoreland also stressed the fact
that Egnor, despite his position as chairman of the safety committee, still went to the face of the No. 4 entry and necessarily w·as inby th~ last permanent,. support in assisting the inspector to obtain his desired measurement·, and that the inspector set a very bad example by asking Egnor to participate in
such a fashion in making the measurement.
I agree with Westmoreland's counsel that the way the
measurement was made seems to have left something to be des.ired
in the way of safety and I hope that similar acts will not occur in the future so that one person is perhaps endangered
while proving tpat someone else was in a hazardous position.
Even Egnor admitted· in his testimony that once a hole is made
in a coal face, which is.only about a foot thick, that additional coal may slough off and that it's not a very safe place to
be. Of course, both Egnor and the inspector denied that Egnor
was at anytime in any danger.
One of the duties which a judge has is making credibility
determinations and one of the ways a judge does thpt is based
on the·· demeanor of the witnesses as well as the consistency of
their testimony. Based on the demeanor of the witnesses in
this case, I beli~ve that the inspector and Egnor have an edge
on credibility. I found a number of questions answered by Westmoreland' s witnesses with qualifications that they were not
sure of the facts and with the assertion that it has been almost 2 years since this matter occurred. Even the section foreman stated that he thinks that the crucial bolt from which
measurements were made was out of line.
I believe that the credible evidence requires me to find
that there was a distance of 22 feet from the face of the crosscut back to the last row of permanent supports. Since exhibit 5
in this proceeding shows that the distance from the head of the
continuous-mining machine back to the controls is 19-1/2 feet,
then necessarily the continuous-mining machine operator would
have had to go inby the .last row of bolts in order to have made
a cut of 22 feet.
I am taking into consideration the fact that it has been
alleged that the continuous-mining machine operator was trying
to straighten the crosscut by cutting at an angle, but I am
also taking into consideration the fact that Egnor has had over
11 years of experience as an operator of a continuous-mining
machine and I am relying upon his and the inspector's conclusions and certainty that there was no evidence to show that the
crosscut had been cut at an angle so as to ..confirm or corroborate Watts' testimony to that effect.

1998

Based,upon the above considerations~ I find that a violation of se6tion 75.200 did occur a~ alleged in Order No. 2037676.
Having f-0und-that a violation occurred, I am required to
consider the six· criteria in assessing a civil penalty. The
parties stipulated that Westmoreland is subject to the Act,
that it is a large operator, that payment of a penalty would not
cause it to discontinue i"n business, and that Westmoreland showed
a good-faith effort to achieve rapid compliance once the violation was cited. Those stipulations take care of three of the
six criteria.
The fourth 09e is the history of previous -violations.
Exhibit No. 7 is a computer printout which indicates that Westmoreland, at the Hampton No. 3 Mine here involved, has paid
penalties £or 29 violations of section 75.200 in the 24 months
preceding the occu~rence of the violation here involved. Counsel for Westmoreland pointed out that those violations were
relatively minor in that they were alleged in citations issued
under section 104(a) of the Act, except for one imminent-danger
order and one unwarrantable-failure order. He also said that a
check had been made of those 29 previous violations and that
none of them involved an allegation that anyone had proceeded
inby permanent roof support.
It appears to me that 29 previous violations in a 24-month
period is a large..)'J.umber of violations and one reason I am
troubled by that many is that when the Act was amended in-1977,
one of the things that concerned Congress in its discussions of
the need to modify the Act to make it stronger in its provisions.
waSj,..that in the Scotia mine the company had previously violated
the ventilation provisions and yet the company had not been
assessed increasingly large penalties based on those repeated
violations. Congress thought that the Act was not being properly administered, or each succeeding violation would have received a higher civil penalty than the one before it • .!f
I am inclined to temper my consideration in this instance
because normally a judge does not get any information at all
about the type of previous violations; he simply is presented
with a number and he has no way to get a perception of the kind
of violation involved. In this proceeding, however, there are
statements that a check has been made of the previous violations and that they do not seem to be serious, or at least
there is not a previous violation of having gone beyond permanent support. For that reason, I shall not make a severe increase in the penalty under the criterion of history of previous
1/ S. REP. NO. 95-181, 95th Cong. 1st Sess. 42-43 (1977),
reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND
HEALTH ACTOF 1977, at 630-631 (1978).

1999

violations/ but I do think that some indication should be made
that that is a rather large number-of pLevious violations.
Consequently, under that criterion I shall assess a penalty of
$200.
The fifth criterion to be considered. is negligence. Counsel for the Secretary has stressed the fact that the company
should have made certain.that i"ts personnel did not violate
the roof-control plan and that the company should be held to be
guilty of a hjgh degree of negligence for the fact that this
violation did occur at all. Westmoreland's counsel, on the
other hand, has taken the very same set of circumstances and
facts and argued that the company should not be held to be
guilty of a high degree of ne.gligence because it has made very
strenuous efforts to acquaint its personnel with the roofcontrol conditions and that i t has made every effort that it
can make to get-its miners to proceed in a safe and lawful
fashion.
There is a considerable body of testimony showing that
Watts was a person who was safety minded and I believe in this
instance that he did intend to mine in a safe manner and he
did intend to stop before going inby the last row of permanent
supports.
It is possible for anyone to make a mistake and I
believe· that Watts did inadvertently cut farther than he intended. For that reason, and the fact that there is a lot of
testimony showin~_that Westmoreland is trying to operate a
safe mine and to make its employees safety conscious, I find
that a very small degree of negligence should be attributed to
management in this case •

... I might point out that there are precedents for my find-

ing here as to negligence.
In Southern Ohio Coal Co., 4
FMSHRC 1459 (1982), the Commission held that the operator was
not liable for negligence for the acts of the rank and file
miner when it comes to assessing a civil penalty, but that
the operator is liable for the acts of the rank and file miner,
when it comes to the finding of a violation, because a company,
under the Act, is liable without fault for violations which
occur in its mine. u. s. Steel Corp., 1 FMSHRC 1306 (1979).
The testimony shows that Westmoreland has tried to instruct
its miners in proper safety procedures and all witnesses who
work for the company so testified. For the aforesaid reason
I am not assessing any portion of the penalty under the criterion of negligence.
The final criterion to be evaluated is gravity. There
is a great deal of testimony by the roof-control specialist,
Inspector Eddie White, and by the inspector who wrote the
order to the effect that a large number of fatalities each

2000

year resul~ from roof falls and from failure to comply with
roof-control plans. Respondent's witn~sses also testified
that going beyond permanent roof supports is a serious violation. Conse~uently, the preponderance of the evidence supports a findinq that this was a serious violation. It is true
that the operator of the continuous-mining machine was under a
canopy, and canopies undoubtedly do help protect operators
from death. But as the inspectors testified, a slate roof is
involved here and when such roofs fall, they are inclined to
break up so hhat portions of rock can fall in on the operator,
even though he is protected by a canopy because the canopies
do not have sides on them to prevent such encroachments. Also
the helper to the continuous-mining-machine operator testified
that he works close to the operator and that makes him vulnerable to injury, if a roof fall should occur, because the fall
will not necessprily terminate right at the canopy of the operator who is running the continuous-mining machine.
The discussion above shows that the violation must be
rated as being very serious under the criterion of gravity.
Based on that criterion, and the fact that a large operator is
involved, 'I believe that the gravity of the violation warrants
a penalty of $800. When the $200 portion of the penalty
assessed under the criterion of history of previo~s violations
is added, a total penalty of $1,000 will be assessed, as hereinafter ordered.

--·
THE MOTION FOR RECONSIDERATION
Occurrence of a Violation

....
As indicated on page 1 of this decision, counsel for Westmoreland filed on June 22, 1984, a motion for reconsideration
of the bench decision rendered at the conclusion of the hearing. A judge's bench decision is not a final decision until
it has been issued after receipt of the transcript and given a
date by the Commission's Executive Director in accordance with
29 C.F.R. § 2700.65. Therefore, Westmoreland's counsel is not
precluded under the Commission's procedural rules from filing
a motion for reconsideration of a bench decision. Additionally, in C.C.C.-Pompey Coal Co., Inc., 2 FMSHRC 1195 (1980), the
Commission held that a judge is obligated to reconsider any
holdings made in a bench decision if, during the interim between the rendering of the bench decision and its issuance in
final form, the Commission issues a decision establishing a
precedent which conflicts with the ruling made by the judge in
his bench decision. The ruling in the Pompey case is applicable in evaluating Westmoreland's motion for reconsideration
because the Commission issued a decision in United States Steel
Corp., 6 FMSHRC 1423 (1984), after I had rendered the bench
decision in this proceeding. In the u. S .. Steel decision, the

200-1

Cormnission:;majority reduced one of my penalties from $1,500
to $400 because my conclusions were not' supported by substantial evidence (6 FMSHRC at 1432). Therefore, I am obligated,
before issuiRg this decision, to show that my assessment of a
penalty of $1,0-00 is supported by the evidence.
Westmoreland's motion first requests that I reconsider
my finding that a violation occurred. The motion notes that
Westmoreland presented the only testimony by eyewitnesses to
the way the c.rosscut was mined and th~t their testimony showed
that the hole in the face of the crosscut was caused by the
"popping out" of coal as a result of the pressure exerted on
the small amount ~f coal left standing between the face of the
crosscut and the No. 4 entry (Exh. 4). Westmoreland agrees
that the distance from the last permanent support to the face
of the crosscut~was 22 feet, as measured by the inspector, but
Westmoreland claims·that the alleged distance of 2-1/2 feet by
which the operator of the continuous-mining machine proceeded
beyond permanent supports was accounted for by Westmoreland's
witnesses who said that the second roof bolt from the right
rib was out of line with the other roof bolts by about 2 feet
and that about 18 inches of coal had popped out of the face.
Exhibit 5 shows that if one measures obliquely from the
left side of the cutterhead on the continuous-mining machine
to the operator's controls located on the right side, the distance is 21 feet-LO inches, instead of the distance of 19 feet
6 inches obtained by the.inspector who measured directly from
the right cutterhead to the operator's controls which are on
the right side of the continuous-mining machine. Westmoreland
poi.nts out that the operator of the continuous-mining machine
testified that the entry was off center and that he was cutting
at an angle to bring the crosscut back into alignment. Westmoreland argues from the aforesaid facts that the operator of
the miner was 21 feet 10 .inches from the face because of the
angle at which the crosscut was mined. That contention supports a conclusion that the operator, at most, was only 2
inches inby the last permanent support (22'' minus 21'10" = 2").
Westmoreland then points out that the hole in the face
of the crosscut was caused by popping or crumbling of the coal.
The crumbling effect, according to Westmoreland, made an indentation in the face of 18 inches. That indentation, it is said,
should also be subtracted from the inspector's measurement of
22 feet because the head of the continuous-mining machine did
not cut that 118-inch indentation. If one subtracts the 18inch indentation from the 2-inch distance that 22 feet exceed
21 feet 10 inches, it will be readily seen that the operator
of the miner, instead of being 2 inches inby the second roof
bolt from the right rib, was actually 16 inches outby that
roof bolt.

200d

In my bench decision, I found th.at the testimony of MSHA's
witnesses was more credible than that of Westmoreland's witnesses. For that reason, I do not ·accept Westmoreland's claim
that the second roof bolt from the right rib was 2 feet outby
the other ro~f bolts in that last row of permanent supports.
The argument above, however, does not even include that portion
of Westmoreland's evidence to the effect that the second bolt
was 2 feet out of line with the other bolts because Westmoreland' s argument ·is based 'on the --21-foot 10-inch oblique measurement from the cutterhead to the controls and the 18-inch indentation in the.face of the crosscut. Westmoreland's argument as
to the cutting of the crosscut at an angle is controverted, however, by the testimony of the inspector and the chairman of the
safety committee vho stated unequivocally that cutting at the
drastic angle that would be necessary to bring the 21-foot 10inch measurement into play would have resulted in the cutting
of a large .plac~ shaped like a piece of pie in the right rib
and both of the witnesses testified unequivocally that the
right rib was smooth and free of any indications showing that
the crosscut had been cut at an angle (Tr. 26; 52-53; 72-73;
257) •
Exhibit 5 is a diagram of the continuous-mining machine.
That diagram shows that the continuous-mining machine is 10
feet 10 inches wide and 23 feet 4 inches long. It,was operating in a crosscut whose total width was 20 feet. An offset
had been cut in the face on the right side. It is impossible
for a machine 23 ..£.~et 4 inches long and almost 11 feet wide to
be turned in a 20-foot entry so as to bring the oblique measurement of 21 feet 10 inches into play because the rear of the
machine will come into contact with the left rib and prevent
the.,.machine from being turned at an acute angle. Additionally,
it must be recognized that the helper to the operator of the
continuous-mining machine testified that the ventilation curtain was in place both at the time they were mining and at the
time they were cleaning up the crosscut (Tr. 187; 193-194).
The ventilation curtain was 4 feet from the right rib (Tr. 193).
The curtain therefore reduced the maneuverability of the continuous-mining machine by reducing the width of the entry to 16
·feet. Moreover, exhibit 5 shows that the continuous-mining
machine has a loading attachment on its rear end which is 9
feet 6 inches long and the helper further testified that he was
involved in keeping the shuttlecars from becoming entangled in
the continuous-mining machine's cable. While the loading apparatus on the continuous-mining machine will swing to the right
and left to provide some flexibility in the way the continuousmining machine is used, the fact remains that the machine's
ability to turn at a dramatic angle was further reduced by the
fact that it was delivering coal into shuttlecars.

2003

It may:;easily be demonstrated why Westmoreland' s motion
for reconsideration dropped its content.ton that the second roof
bolt from the right was about 2 feet outby and out of line with
the other roo.f bol·ts in the last row of permanent supports.
If·
that contention-.:is added to Westmoreland' s other arguments about
an 18-inch indentation in the face and its contention that the
operator's controls were 21 feet 10 inches from the face when
the miner is being used at an arigle, the result would be that
the operator of the miner was 40 inches outby the last row of
permanent supports, as shown in the calculation below:
O"

= distance from second roof bolt from right

-21' 10"

= distance from left cutterhead to controls

22'

riq to face 9f crosscut (Exh. 4).

of machine (Exh. 5).

2!'

= dj..stance operator was inby second roof
bolt.from right rib.

18"

-

= indentation in the face caused by "popping

off" of coal (which further reduces the inspector's 22-foot measurement).
- 2" = distance which operator would have been inby
second roof bolt if he were 21' 10" from the
face.
,
••· 16 II = distance operator would have been outby the
second roof bolt if indentation accounted
fo.r_~l8 inches of inspector's 22-foot measurement.
+24" = distance second roof bolt was out of line
with other roof bolts in last row of permanent supports.
40" = distance operator would have been outby the
last row of permanent supports if all of
Westmoreland's contentions are applied to
reduce the inspector's 22-foot measurement.

The inspector testified that he went into the crosscut to
determine why no curtain had been erected in the crosscut. When
he saw the hole in the face, he recognized that air would travel
into the No. 4 entry, which was the return entry,· and obviate
the need to have a curtain installed, but then the inspector's
attention was attracted to the fact that the crosscut had been
mined beyond permanent support in violation of the roof-control
plan (Tr. 17). If the operator of the continuous-mining machine
had stopped cutting coal when the controls of the machine were
40 inches outby the last row of permanent supports, there is no
likelihood that the inspector's attention would have been directed to the depth of the last cut of coal which had been removed from the crosscut because the operator of the machine
could not have been close enough to the face for the controls of
the machine to have been nearer to the face .. than the 19-foot 6inch distance from the right cutterhead to the machine's controls (Exhs. 4 and 5).

2004

There.; are other aspects of Westmoreland' s evidence which
cast doubt on the validity of its arguments. The person who
made the measurements on which Westmoreland relies was Roger
McMicken whcr was ·the section foreman on the second shift when
the crosscut was mined. He testified that the first roof bolt
from the right rib was 20 feet from the face of the crosscut
(Tr. 204; Exh. B). McMicken did not claim that the measurement
from the first roof bolt' to the-face was made to an indentation
in the face.
There is no way for the operator of the continuousmining machine to have cut 20 feet inby the first roof bolt
from the right rib without going at least 6 inches inby that
roof bolt because the continuous-mining machine could not possibly have cut the extreme right side of the face to a depth of
20 feet without having the continuous-mining machine almost
squarely against the face as claimed by MSHA's witnesses (Tr.
53; 72).
..
Westmoreland's contentions about nonoccurrence of the violation are further flawed by the lack of certainty shown in
its witnesses' testimony. Raymond Watts was the operator of
the continuous-mining machine on the night of September 15,
1982. Watts is classified as the help~r to the operator of
the continuous-mining machine (Tr. 141), but on the night of
September 15, 1982, the regular operator did not r.eport for
work because of illness in his family (Tr. 157). Watts' helper
was Roger Bias who was not familiar with the Joy miner which
was being used a;t.~that time (Tr. 159). It is ordinary practice
for the regular operator to make the first cut of the shift and
for the helper to make the second cut. Then they generally
alternate in that fashion throughout the shift, but Bias' inexperience prevented that sort of switching in assignments with
the result that Watts made all of the cuts of coal which were
mined on the evening shift of September 15 (Tr. 157-159).
Watts' testimony will not support many findings because
he was not certain about his actions on September 15. He was
only able to say that he "thinksi• the bolts in the last row of
permanent supports.were out of line (Tr. 154). Watts agreed
that the right side of the crosscut was definitely cut more
deeply into the face than the left side, that he was the one
who made both cuts, and that he believed the right side was
cut from 10 inches to a foot deeper than the left side (Tr.
155). Watts also claimed that he was watching the curtain on
the roof bolt closest to the right rib and that he did not go
beyond that curtain (Tr. 145), but the section foreman found
that it was 20 feet from that bolt to the face of the crosscut
(Tr. 204). As indicated above, Watts could not have cut the
extreme right corner of the crosscut to a depth of 20 feet
without going inby that bolt by at least 6 inches. Despite
Watts' contention that he had not gone beyond the last row of
permanent supports, he did not bother to measure the distance
to the face after the crosscut had been bolted (Tr. 179).

2005

Watts•; helper, Bias, was very unsure about what he had
done when the crosscut was mined. -He fi.rst stated that he was
standing right beside Watts when Watts made the disputed cut,
but then he added· that he "believes" he was standing near Watts
(Tr. 185). Bias had worked as Watts' helper only about 10
times, but so far as he could recall, he had not seen Watts go
beyond permanent supports (Tr. 187). Bias said that the hole
in the face could have popped out from pressure, but could also
have been cut with the head of the continuous-mining machine
(Tr. 186; 19L). Bias did not recall which bolts he was watching when Watts made the cut on the ·right side, but he said that
he ought to have been watching the two bolts nearest to the
right rib (Tr. 19p). Bias also testified that they did not
take down the curtain before cleaning up the crosscut and that
the curtain was still up when he left the section between 11:15
and 11:30 p.m. !Tr. 193).
The measurements on which Westmoreland relies were made by
Roger McMicken, the section foreman who was on duty when the
disputed deep cut was mined. He testified that he saw the hole
in the crosscut when he made his last check of the face area on
September 15, 1982. He saw nothing otherwise unusual about the
way the crosscut had been mined (Tr. 199). His measurements
were made the next night after the crosscut had be~n fully
bolted; but he knew which bolt to use in his measurement because it had been marked (Tr. 201). Although he, like the inspector, obtained.~ 22-foot measurement from the second bolt
from the right rib to the face, he said that one of the reasons
the distance measured that much was that he had placed the end
of the tapeline into the 18-inch indentation caused·by the "pop-.
pill.9" out of the hole in the face (Tr. 201). Yet he could not
recall whether the hole was in line with the second bolt, or
how far off the right rib the hole was, or ·whether the hole was
on the left or right side of the cut (Tr. 203). After giving
the distances which he measured, he said that he "believed"
those were the measurements he obtained (Tr. 205). As to the
20-foot measurement from the first roof bolt from the right
rib to the face, he testified that it was ,"maybe twenty foot"
(Tr. 204). The aforesaid equivocations were made during his
direct testimony.
· ·
On cross-examination, McMicken stated that the curtain was
not up at 11 p.m. when he checked the crosscut (Tr. 208), but,
as noted above, Bias stated that the curtain was still up when
they cleaned up the crosscut. As to the offset in the face of
the crosscut, which Watts said existed, McMicken testified that
he could not recall whether the offset existed or not, but he
would not say that it did not exist or that he had failed to see
it (Tr. 211). Although McMicken believed that "more than likely
someone was holding the tapeline" (Tr. 212) when he made his
measurements, he could not recall who assisted him in making the

2006

measurements.

McMicken also could not recall whether the
machine had made-a sqbare cut into the face
on the right side (Tr. 213). Moreover, although McMicken
based his belief that the distance from the second roof bolt
from the right_r-ib to the face measured 22 feet on a "belief"
that the second bolt was out of line with the other bolts in
the row by "maybe a foot or two" (Tr. 203), he did not examine
the roof bolts sufficiently to be able to state what pattern
of bolting or condition in the roof caused the. misalignment,
if any, or what was done by the roof-bolting machine's operator
to compensate for having installed a roof bolt which was from
1 to 2 feet out of alignment (Tr. 217).
continuous~mining

Although I n~ted in finding No. 10 of my bench decision
that Egnor had gone to the face of the No. 4 entry where it
could have.been~dangerous for him to go in order to assist the
inspector in making his measurement, Westmoreland's claim that
Egnor reached into the hole in order to obtain the inspector's
hammer is based on the incredible testimony of Richard Sparks
who alleges that he was operating a scoop in the No. 4 entry
at the time Egnor came into the No. 4 entry. While Sparks
claims to have seen Egnor reach into the hole for the purpsoe
of getting something on the other side of the entry, Sparks'
testimony is filled with unexplained gaps and inco~sistencies.
He first said that Egnor placed his hand on the rib and reached
through the·hole, but thereafter he was unable to state for
sure which hand F;.g~or used to reach into the hole (Tr. 221;
225). He first said that he did not ask Egnor why he was.doing
such an unsafe act and then stated that he could not recall
whether he asked Egnor anything about the hazardous ··act he had
COI'Qlilitted (Tr. 221; 226). Although Sparks was busy piling up
coal at the very place where Egnor was said to have reached
through the hole, Sparks testified that he did not see Egnor
walk past him on his way to the face (Tr. 229-230). Although
Sparks had an obvious interest in what happened in the mine,
he professed not to be interested enough in what Egnor was doing to know what he obtained when he reached through the crosscut or to notice whether Egnor was carrying a hammer when he
walked past him after he had reached through the hole to get
something (Tr. 225; 230). Even though Sparks did not know why
Egnor had come to the face of the No. 4 entry at the time
Sparks claims to have seen him, Sparks claims that he asked
someone later in the shift to find out what was going on, but
cannot. remember who it was that he asked (Tr. 2 2 7) •
. Additionally, Sparks claimed that Jake Henry, the helper
to the continuous-mining machine operator on the day shift, was
in the crosscut at the time the inspector made his measurement
and Sparks stated that Henry told him it took the inspector two
or three throws to get the hammer through the hole in the face
of the crosscut (Tr. 223). Sparks then apparently realized
that if Henry had seen the hammer go through the hole, it would

2007

have been 'l,IIlnecessary for Egnor to reach through the hole to
obtain the.inspector's hammer as Sparks~had previously testified (Tr. 220). Therefore, Sparks stated that the hammer must
not have gons through the hole at all or he would not have been
able to see Egnor reach through the hole to get it (Tr. 223).
The unconvincing nature of Sparks' testimony is adequate
reason for me to reject it for lack of credibility. Sparks'
testimony was·rebutted by Egnor who stated that no one was
in the No. 4 entry when he went there to assist the inspector
in making his measurement. Egnor additionally stated that it
would have been necessary for him to have flagged Sparks down
so that he could proceed by him to the face of the entry (Tr.
259-260). Sparks stated that he did not see Egnor walk past
him while he was operating the scoop because he had to move
back and forth in the entry (Tr. 228). I find that Egnor's
statement that he would have remembered flagging down the
scoop's operator, if anyone had been operating a scoop, is
more convincing and more credible than Sparks' statement that
he was in the No. 4 entry and observed Egnor reach through
the hole to obtain an unknown object.
I believe that the discussion above shows beyond any doubt
that the inspector correctly concluded that the operator of the
continuous-mining machine proceeded inby permanent supports
when he mined the second cut on the right side of the crosscut
on September 15,...l,82. Having reexamined all of the evidence
in light of Westmoreland's motion for reconsideration, I conclude that my bench decision correctly found that a violation
of section 75.200 occurred as alleged in Order No. 2037676
da~d September 16, 1982.
Assessment of Penalty
Westmoreland's motion for reconsideration uses my finding
that the violation was associated with a low degree of negligence for the purpose of arguing that a penalty of $1,000 is
excessive in circumstances where management is found to have
made a sincere and concerted effort to teach its miners safe
mining practices. Westmoreland claims that no witness was able
to suggest anything that Westmoreland could have done to avoid
the instant violation. If there is any part of my bench decision which is incorrect, it is my conclusion that no portion of
the penalty should be assessed under the criterion of negligence. I shall hereinafter explain in detail why I did not
assess any portion of the penalty under negligence.
There is evidence in the record to support a finding of a
greater degree of negligence than I found in my bench decision
if I had thought it would be fair to Westmoreland to emphasize
such evidence. Inspector Baisden, for example, checked Item 20

2008

in his order of withdrawal to indicate that he believed that
the violation was associated with a high degree of negligence
(Exh. 2).
The inspector supported his checking of a high degree of negligence by testifying that a section foreman was on
duty on the segtion during the cutting of the crosscut and
that he should have made certain that the crosscut was not
mined to a depth of 22 feet (Tr. 27). _Before becoming an inspector, Baisden had been the operator of various types of underground mining equipment and had also worked as both a section foreman p.nd assistant mine foreman (Tr. 6-7). Therefore,
the inspector's belief that the section foreman should have
prevented the cutting of the crosscut 2-1/2 feet beyond permanent supports is entitled
to be given considerable weight.
,,.
Moreover, the section foreman, Roger McMicken, was clearly
negligent ~n th~ way he performed his job on September 15, 1982.
The operator of .the continuous-mining machine was not the regular operator and the helper of the substitute operator was an
inexperienced person in that capacity, at least insofar as cutting with a Joy continuous-mining machine is concerned (Tr. 156;
159). Therefore, McMicken should have been paying special attention to· the way the entries were being cut because they were
all cut on that shift by Watts who was classified as a helper
to the regular operator (Tr. 159). McMicken's own testimony
shows that he noticed the hole in the face of the crosscut, but
stated that he did not see anything else unusual about the
crosscut (Tr. 199). The inspector's attention had been directed
to the crosscut by~the absence of a curtain. When the inspector
saw the hole in the face of the crosscut, he concluded that ventilation was satisfactory, but then he noticed that .. the operator_
of the continuous-mining machine would have had to go beyond
permanent supports to mine an entry to the depth the inspector
observed (Tr. 13-19). The section foreman should have been able
to make an evaluation of the excessive depth of the crosscut and
should have left special instructions for the section foreman on
the next shift to see that the crosscut was bolted as soon as
possible so that the excessive area of unsupported roof could be
made safe without leaving the area unsuppo~ted any longer than
necessary.
·

-

.

.

The inspector discussed the order he had'written with both
the section foreman on the day shift and the mine foreman.
The
inspector offered to remeasure the crosscut in their presence
if they believed he had made an error, but they declined to have
him do so. According to the inspector, the mine foreman's conclusion, after seeing the crosscut, was that the miners who had
made the cut just "messed up" (Tr. 23-24). Westmoreland's last
witness was Jim Kiser who is Westmoreland's safety manager (Tr.
230). He testified that the mine foreman intended to discipline
the section foreman because the mine foreman believed that they
were at fault in having violated the roof-c9ntrol plan (Tr. 245).

2009

Kiser inve~tigated the violation cited by the inspector and
concluded that Westmoreland's persdnnel~were not at fault because he did not believe that a violation had occurred, based
on the arguments about measurements discussed in the preceding
section of this: decision. Since Kiser had concluded that no
violation occurred, he influenced the mine foreman sufficiently
to cause the mine foreman to reverse his decision to discipline
the personnel who had been on duty when the violation occurred
(Tr. 245) .
My decision not to assess any portion of the penalty under
the criterion of negligence is based largely on the fact that
Westmoreland's mine foreman would have disciplined the personnel involved had he not been influenced to do otherwise by Westmoreland' sown safety department. I also took into consideration that Watts, the miner who made the cut beyond permanent
supports, had nearly been killed in a roof fall himself and had
an excellent reputation for being safety oriented. I believed
that Watts was telling the truth when he stated that he did not
think he had gone beyond permanent supports and did not intend
to go beyond permanent supports. Additionally, I believed that
the section foreman could reasonably have relied upon Watts'
good reputation for safety in failing to keep a constant vigil
over him while he was operating the continuous-mining machine
on Sep;tember 15. Taking all of the aforesaid matters into consideration, I believed that it would be unfair to Westmoreland
to assess any poli:.t.j.on of the.penalty under the criterion 9f
negligence.
There is additional testimony in the record, however,
whi.ch shows that Westmoreland overstates its case when it
argues that no witness was able to suggest anything which Westmoreland could do to increase safety awareness above that which
it was already doing. The section foreman, for example, claimed
that he had daily contacts with the miners to instruct them in
safe mining practices (Tr. 197). On the other hand, Watts, the
operator of the continuous-mining machine who cut 2-1/2 feet
beyond permanent supports, testified that they had a weekly
safety talk or meeting and that they discussed the roof-control
plan "fairly often" (Tr. 146).
·
The discussion above shows that Westmoreland's management
was not so entirely free from fault in the occurrence of the
violation, that a penalty of $1,000 is completely unjustified
when considered in conjunction with the fact that I did not
assess any portion of the penalty under the criteiion of negligence. In Nacco Mining Co., 3 FMSHRC 848 (1981), the Commission affirmed a Judge's decision finding that the operator was
not negligent, but the Commission also affirmed the judge's
assessment of a penalty of $500 because of the seriousness of
the violation and the fact that the operator had an unfavorable
history of previous violations.

2010

In my bench decision, I emphasized the fact that ·congress
believed that the penalty provisions of . . the Federal Coal Mine
Health and Safety Act of 1969 were not being properly administered becau~e MESA was not proposing increasingly large penalties when there was evidence that an operator was repeatedly
violating the same mandatory health and safety standards. s.
REP. NO. 95-181, 95th Cong., 1st Sess. _43 (.1977), made the following comment about using the criterion of history of previous
violations in assessing penalties:
In evaluating the history of the operator's violations
in assessing penalties, it is the intent of the Committee that repeated violations of the same standard, particularly within a matter of a few inspections, should
result in the .substantial increase in the amount of
the pepalty_ to be assessed. Seven or eight violations
of the same·st~ndard within a period of only a few
months should result, under the statutory criteria, in
an assessment of a penalty several times greater than
the penalty assessed for the first such violation. 2/
Exhibit No. 7 shows 2 9 previous vio·lations of section
75.200 at the Hampton No. 3 Mine during the 24 months preceding
the occurrence of the violation cited in this proceeding. All
but two--of the violations were considered to be "si'gnificant
and substantial". 3/ Six of the violations occurred in August
and September 1982-and the violation here involved was.cited on
September 16, 1982:~ The fifth of those six violations was·
cited in an unwarrantable-failure order issued only 12 days before the instant violation occurred and MSHA proposed a penalty
of $305 for that violation which was paid in full by Westmorelana. Therefore, my penalty of $1,000 is within the guidelines
mentioned in the legislative history because it is three times
· the amount proposed by MSHA for one of the previous unwarrantable-failure violations of section 75.200.
Since the c.ommission has held in several prior cases and
most recently· in Sellersburg Stone Co., 5 F,MSHRC 287 (1983),
aff 'd Sellersburg Stone Co. v. FMSHRC,
F.2d
, 7th Circuit
No. 83-1630, issued June ll, 1984, that-ale CommiSSion and its
2/ Reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY
AND HEALTH ACT OF 1977, at 631 (1978).
3/ In Consolidation Coal Co., 6 FMSHRC 189 (1984), the Commission held that an inspector may properly designate a violation
cited pursuant to section 104(a) of the Act as being "significant and substantial" as that term is used in section 104(d) (1)
of the Act, that is, that the violation is of such nature that
it could significantly and substantially contribute to the cause
and effect of a mine safety and health hazar.d.

2011

judges are ;1iot bound by MSHA' s assessment formula, it has not
been my practice in the past to refer to MSHA's proposed penalties when I am assessing penalties on the basis of evidence
presented at a hearing. Nevertheless, since the Commission
majority in the.U. S. Steel case, hereinbefore cited, found
that·MSHA's proposed penalty of $400 was appropriate, whereas
my penalty of $1,500 was excessiye (6 F-MSHRC at 1432), it now
behooves me to show why I have assessed a penalty of $1,000 in
this case although MSHA has proposed a penalty of only $395.
The first obvious defect in MSHA's proposed penalty is that
MSHA assigned only six penalty points pursuant to 30 C.F.R.
§ 100.3(c) under the criterion of history of previous violations.
MSHA assigned a tqtal of 52 penalty points for the violation.
If six penalty points are subtracted from that total, the penalty would have been only $275 when the reduced points are
entered on ~he p~nalty conversion table in section 100.3(g) of
the assessment formula. In other words, MSHA assessed $120 of
the penalty under the criterion of history of previous violations. The violation here involved was the seventh violation
of section 75.200 to have occurred at the Hampton No. 3 Mine
within less than a period of 2 months. Consequently, it is
obvious that MSHA is still not using the criterion of history
of previous violations as Congress intended, or the proposed
penalty would have been several times greater than ,the previous
proposed penalties for violations of section 75.200.
0

Westmoreland!~ motion for reconsideration argues that my
penalty of $1,000 is excessive because I assessed $800 of ·it
under the criterion.of gravity despite the fact that I failed
to assess any portion of the penalty under the criterion of
negl.igence. It is a fact, however, that gravity is a separate
criterion and the Commission has not held in· any case of which
I am aware that a judge is precluded from assessing a penalty
under the criterion of gravity wholly apart from any amount
which he may think is appropriate under the criterion of negligence. It is certain that MSHA's assessment formula considers
the criterion of gravity as a separate matter in section 100.3
(e) of the formula from the criterion of negligence which is
considered in section 100.3.(d) of the formula. In this case,
MSHA assigned 16 penalty points under the criterion of gravity.
If 16 points are deducted from the total of 52 points assigned
under the formula, it can be seen by application of those points
to the conversion table in section 100.3(g) of the formula, that
MSHA attributed $255 of the proposed penalty of $395 to the criterion of gravity.

The inspector testified that the violation was very serious
(Tr. 30-36); the chairman of the safety committee testified that
the violation was very serious (Tr. 76-80); MSHA's roof-control
specialist testified that .the violation was very serious (Tr.
119-123); Westmoreland's section foreman teatified that the

2012

-

violation was very.serious (Tr. 198); Westmoreland's operator
of the continuous-mining machine testifi.ed that the violation
was very serious (Tr. 146; 182); and Westmoreland's safety
manager testified that the violation was very serious (Tr. 245)·.
While it is tru-e that all of Westmoreland's witnesses claimed
that the violation did not occur, the fact remains that they
all agreed that going beyond permanent. roof supports is a very
serious violation. I have already shown that there is no merit
to any of Westmoreland's arguments in which it has striven to
show that tha violation did not occur.
It is my function to consider the preponderance of the evidence in deciding,. cases. Failure to assess a substantial amount
under the criterion of gravity in this proceeding would require
me to ignore a vast amount of evidence to the effect that the
violation was very serious. My failure to assess any part of
the penalty under the criterion of negligence may be in error
because I probably should not have given as much weight as I did
to the ameliorating factors hereinbefore discussed, but my failure to assess a portion of the penalty under the criterion of
negligence is certainly no reason for me to assess only a token
penalty under the criterion of gravity when that criterion is
considered·in light of Westmoreland's very unfavorable history
of previous violations and the fact that Westmorelp.nd is a large
operator which has stipulated that payment of penalties will not
cause it to discontinue in business.
·~-

.

For the reasons given above, I conclude that my bench decision assessing $800 under the criterion of gravity and $200 under the criterion of history of previous violations" to derive a .
tot.al penalty of $1,000 should be affirmed.
WHEREFORE, it is ordered:
(A) Westmoreland's motion for reconsideration filed
June 22, 1984, is denied.
(B) Westmoreland Coal Company, within 30 days from the
date of this decision, shall pay a penalty of $1,000.00 for the
violation of section 75. 200 cited in Order No.-' 2037676 issued
September 16, 1982.

~C.<J/N/e

Richard c. Steffey~
Administrative Law Judge

2013

Distribution:
Kevin C. McCorllrl:ck, Esq., Office of the Solicitor, U. s.· Department of Labor, Room 1237A, 4015 Wilson Boulevard, Arlington, VA
22203 (Certifie~ Mail)
F. Thomas Rubenstein, Esq., P. O. Drawer A & B., Big Stone Gap,
VA 24219 (Ce.rtified Mail)

yh

2014

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

August 21, 1984
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
WEST VIRGINIA REBEL COAL
COMPANY, INC.,
Respondent

Docket No. KENT 83-209
A.C. No. 15-06365-03509

.

No. 1 Surface Mine

DISAPPROVAL OF SETTLEMENT
ORDER OF ASSIGNMENT
On March 27, 1984, the Solicitor filed his Response to
the Order to Submit Information issued in the above-captioned proceeding. At issue is one violation, the proposed
settlement of which is $20, the originally assessed amount.
Citation No. 2053339 was issued for a violation of 30
C.F.R. § 77.1605(b), because the foot and parking brakes on
a scraper were inoperative. The Solicitor asserts in his
motion the the Caterpiller 637 Scraper was operating on the
outside edge of the coal pit at the time that this citation
was issued and that there were no other miners on the ground
near this machine. The Solicitor represents that although
the machine was without service or footbrakes, it was operating on a very slight incline and was capable of being.
stopped by the use of its scraper blade or bowl. He also
argues that the machine was not working on rocky ground and
was therefore capable of exerting downward pressure with the
blade to enable it to stop.
In his original motion, the Solicitor represented that
'gravity and negligence were moderate.
I have consistently
held that a $20 penalty denotes lack of gravity. I am unable to approve a $20 settlement of a violation which the
Solicitor himself alleges is of moderate negligence and
gravity. Moreover, it may be that the gravity was even more
than moderate. Therefore, this case is hereby assigned to
Judge James A. Broderick.
All future communications regarding this case should be
addressed to Judge Broderick at the following address:

2015

Federal Mine Safety and Health
Review Commission
Off ice of Administrative Law Judges
Two Skyline Place, Suite 1000
5203 Leesburg Pike
Falls Church, VA 22041
Telephone No. 703-756-6200

c.-{~PJ
Paul Merlin
Chief Administrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203
(Certified Mail}
Mr. Carl A. Tibbetts, Gardner, Moss, Brown & Rocovich, Suite
900 First National Exchange Bank Building, 213 South Jefferson Street, P.O. Box 13606, Roanoke, VA 24035
(Certified Mail}
/nw

2016

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

80204

,~UG 2119~.

CIVIL PENALTY PROCEEDINGS

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

.:

v.
KENNECOTT MINERALS COMPANY,
UTAH COPPER DIVISION,
Respondent

.
.
.
.

Docket No. WEST 81-342-M
A.C. ~o. 42-00712-05020
Docket No. WEST 81-343-M
A.C. No. 42-007l2~05021
Arthur Concentrator

DECISION
Appearances:

James H. Barkley, Esq., Peggy Miller, Esq. , Of·f ic~
of the Solicitor, U.S. Department of Labor, Denver,
Colorado,
for Petitioner:
Kent W. Winterholler, Esq., Parsons, Behle &
Latimer, Salt Lake City, Utah,
for Respondent.

Before:

Judge Morris

These cases, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 ~ ~, (the
Act>, arose from an inspection of respondent's worksite. The
Secretary of Labor seeks to impose civil penalties because
respondent violated a safety regulation promulgated under the Act.
Respondent withdrew its notice of contest to the unde~lying
violations but contests the amount of the proposed penalties CTr.
2' 3).

After notice to the parties, a hearing on the merits was
held in Salt Lake City, Utah on September 20, 1983.
~espondent

filed a brief at the hearing.
Issues

What penalties are appropriate for these violations?
Stipulation
The parties stipulated that the imposition of a penalty of
$2,964 would not affect respondent's ability to continu~ in
business (Tr. 22, 23) •
'

2017

Citations
The two cases here involve 26 separate violations of Title
30, Code of Federal Regulations, Section 55.14-1.
For these violations the Secretary, in his proposed
assessment, seeks penalties in the total amount of $2,736. There
are two citations for the same defective conditions but for these
violations the Secretary seeks no penalties.
The regulation violated by respondent provides as follows:
Guards
55.14-1 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.
Summary of the Evidence
On December 12, 1980 MSHA Inspector William w. Wilson
inspected respondent's Arthur Concentrator (Tr. 6, 7). He issued
citations for the violation of 30 C.F.R. § 55.14-1 .when he found
26 unguarded ball mills (Tr. 7, 8, Pl-P4). A series of steel
balls in the machines grind ore inside a cylindrical drum. Ore
concentrate is the resulting product. The drum itself has a five
foot diameter and it is 2 1/2 feet above ground level (Tr. 9).
The wheel turns inside a stationary drum holder at 600
revolutions per minute (Tr. 9, 10).
On these primary ball mills there were numerous pinch points
between the drum holder and its supporting concrete frame. There
are additional pinch points between the drum and the rotor (Tr.
8, 10; Pl, P2).
A pinch point is that area located between two moving parts
or between a moving and a stationary point. An object or
material can become caught, pulled, torn, or entangled at a pinch
point <Tr. 7, 8)~
Photographs show a coke bottle, gloves, a rag and a grease
can on the bottom of the steel ball machine frame (Tr. 11; P3,
P4).
Workers maintain the machines by pouring grease into a cup
on the top. At that point the maintenance worker is six feet off
of the ground. He could slip and fall into the moving wheel CTr.
12). The operators of the machines also use the walkway located
to the left (Tr. 13, P4).

2018

The twenty six ball mills, a football field in length, are
adjacent to a walkway <Tr. 13>. A person on the walkway could
trip or fall into a moving wheel. In the winter a worker's heavy
clothing could be caught in the machines (Tr. 14).
On the day of the inspection almost all of the unguarded 26
ball mills were running (Tr. 16, 17). The inspector later
modified the citation as to two non-operating machines <Tr. 17,
18). But in the inspector's opinion all 26 violations existed.
The machines that were not running that day were still capable of
operating (Tr. 17, 18).
In the past the inspector had seen guards on similar
machines at other concentrators (Tr. 20).
The condition here could cause a serious injury or a
fatality. An accident would be likely to occur (Tr. 20).
Respondent has 5,000 workers. A computer printout at the Arthur
Concentrator shows an prior history of 26 violations of safety
regulations, excluding the violations in contest in the instant
cases.
An MSHA memorandum of October 3, 1979 deals with a situation
where the same violations exist in the same area of a mine. The
memorandum requires that one citation be issued (Tr. 26).
At the hearing the judge indicated he would take official
notice of the MSHA memorandum (Tr. 28).
Discussion
Respondent's brief filed at the hearing raises two issues.
Initially it is asserted that MSHA may not impose twenty four
separate penalties as the result of issuing a single citation.
As a secondary issue respondent claims that the penalties are
excessive and unfair.
The Act provides that civil penalties may be imposed for the
violation of mandatory safety standards. Further, "each
occurrence of a violation of a mandatory health or safety
standard may constitute a separate offense" 30 U.S.C. 820(a).
It appears on this record that there were 26 separate
offenses since all of the machines were unguarded. I find
nothing in the Act or in the legislative history that would
prohibit MSHA from issuing a single citation for these separate
violations.
Respondent's reliance on the MSHA policy memorandum is
misplaced. The memorandum states that where the same area of the
mine is involved any multiple violations.should be treated as one

2019

violation and one citation should be ·issued.
It does not
necessarily follow from the memorandum that only one penalty must
be proposed.
In any event the Commission is not bound by any method of
assessment used by MSHA. Co-op Mining Company, 2 FMSHRC 784
(1980); the Commission can make de novo assessments. Shamrock
Coal Company, 1 FMSHRC 469 (1979""):" The United States Court of
Appeals for the 7th Circuit recently concluded that the
Commission, as an independent adjudicative body, was required to
follow the six criteria in 30 U.S.C. § 820(i) in assessing a
civil penalty. Sellerburg Stone Company v. FMSHRC et al. No.
83-1630, 2 M&IIC 2010, 3 MSHC 1385, June 11, 1984.
Following the statutory criteria I find on this record that
the Arthur Concentrator has a history of 26 violations in the two
years prior to December 27, 1980 (Exhibit PS). This would not
appear to be an excessive number of violations considering the
large size of respondent's facilities.
I find the operator was
negligent in that the unguarded conditions were apparent. The
imposition of a penalty will not affect the operator's ability to
continue in business. The gravity, in my view, is somewhat less
than claimed by Inspector Wilson. The pinch points, apparently
located between the rotator and the assembly frame, do not appear
to be as readily accessible to miners in the immediate area as
the inspector claims. Accordingly, I do not find that an injury
is as likely as the inspector contends (Tr. 8; Pl). The operator
demonstrated good faith in installing guards after being notified
of the violation.
On balance, I consider a penalty of $50 to be appropriate
for each unguarded ball machine at the site.
I am further
assessing penalties for the two unguarded machines that were not
operating on the day of the inspection.
Respondent failed to offer any evidence that these
particular machines had been removed from service.
In sum, a
total civil penalty of $1,300 (26 x 50) should be assessed.
Based on the foregoing findings of fact and conclusions of
law I enter the following:
ORDER
1. In WEST 81-342-M and WEST 81-343-M respondent's motion
to withdraw its notice of contest as to the validity of the
citations is granted.

2020

2. The following citationE are aff irned and a penalty of
$50 is assessed for each such violation.
WEST 81-342-M
Citation
583705 A
583705 B
583705 c
583705 D
583705 E
583705 F
583705 G
583705 H
583705 I
583705 J
583705 K
583705 L
583705 M
583705 N
583705 0
583705 p
583705 Q
583705 R
583705 s
583705 T

$

Penalty
50.00
50.00
50.00
50.00
50.00
50.00
50.00
50.00
50.00
50.00
50.00
50.00
50.00
50.00
50.00
50.00
50.00
50. 00
50.00
50.00

3. The following citations are affirmed and a penalty of
$50 is assessed for each such violation.
WEST 81-343-M
Citation
583705 u
583705 v
583705 w
583705 x
583705 y
583705 z

$

Penalty
50.00
50.00
50. 00
50.00
50.00
50.00

4. Respondent is ordered to pay the sum of $1,300 within 40
days of the date of this decision.

,~;u-?,_

(;;.· /iz:-ni..< ..::

,;:t0hn J • Morris
,/_., Administlati ve Law Judge
/

2021

Distribution:
James a. Barkley, Esq., and Peggy Miller, Esq., Office of the
Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961
Stout Street, Denver, Colorado 80294 (Certified Mail)
Kent w. Winterholler, Esq., Parsons, Behle & Latimer, 185 South
State Street, Salt Lake City, Utah 84147 (Certified Mail)

' /blc

2022

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

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

v.

. CIVIL PENALTY PROCEEDINGS
:
:

KENNECOTT MINERALS COMPANY,
UTAH COPPER DIVISION,
Respondent

AUG 211984

Docket No. WEST 82-155-M
A.C. No. 42-00716-05015
Docket No. WEST 83-60-M
A.C. No. 42-00716-05503

. Magna Concentrator
DECISION

Appearances:

James H. Barkley, Esq., and Peggy Miller, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Petitioner:
Kent W. Winterholler, Esq., Parsons, Behle &
Latimer, Salt Lake City, Utah,
for Respondent.

Before:

Judge Morris

These cases, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg., Cthe
Act), arose as the result of an inspection of respondent's
tailings pond. The Secretary of Labor seeks to impose civil
penalties because respondent allegedly violated safety regulations promulgated under the Act.
Respondent denies any liability for these incidents.
After notice to the parties, a hearing on the merits was
held in Salt Lake City, Utah on September 20, 1983.
Respondent filed a post trial brief.
Issues
The issues on the contested citations are: whether the
doctrine of res judicata and collateral estoppel bar the
citations: whether the standard applies to respondent's tailings
pond: and whether the standard is mandatory or merely advisory.

2023

WEST 82-155-M
In the above case the parties proposed the following
settlement:
Citation No.
577649
577650
577651
579422
579423
579426
577707
579429

30 C.F.R.
Assessed
Proposed
Section Violated
Dis12osition
Penalt:i
55.20-8
$ 24.00
$ 24.00
55.12-25
40.00
40.00
55.12-32
40.00
20.00
55.20-3A
26.00
Vacated
55.20-3A
26.00
26.00
55.20-3A
26.00
26.00
55.11-1
72.00
72.00
55.16-5
52.00
52.00
(Transcript at pages 10-13 in
Docket No. WEST 83-5-M)

On the basis of the record I find that the proposed
settlements are reasonable and they should be approved.
Litigated Citations
WEST 82-155 and WEST 83-60-M each contain a citation
alleging a violation of 30 C.F.R. § 55.9-22. The standard cited
by the Secretary provides as follows:
Mandatory. Berms or guards shall be provided on
the outer bank of elevated roadways.
Summar:i of the evidence
The evidence, generally uncontroverted, focuses on the same
general area of respondent's tailings pond. This decision will
first consider the tailings pond area itself and then, in chronological order, the three citations involved in the evidence. The
first of the three citations was assigned to Commission Judge
George A. Koutras. The subsequent citations are contested in
each of the pending cases.
The tailings 12ond
A public highway intersects respondent's 4800 acre tailings
pond at its Magna and Arthur Concentrators (Tr. 11, 12, 128, 131).
The tailings pond assimilates each day some 85 tons of residue
derived from the crushing of ore. The deposits in the pond,
about 27 percent solid, causes a buildup in the sludge. From
time to time it is necessary to increase the height of the
discharge pipes (Tr. 12-14, 128-131).

202~1

The roadway cited by MSHA furnished access from one side of
the tailings pond area to the roads (Tr. 15, 19, 21; Exhibits Pl,
P2). Contractors, maintenance personnel, dikemen and supervisors
travel this road (Tr. 15). At various times respondent has
placed berms on the road located below the upper dike level. But
these berms, by trapping rainwater, have created unstable
conditions for vehicles on the road. Phreatic water and erosion
problems have also increased. Any dike failure could cause water
to flow into the Great Salt Lake <Tr. 140, 141, 153).
Citation 583706
In due course the above citation evolved into FMSHRC case
WEST 81-283-M.
The evidence in the instant case together with the
Commission file in WEST 81-283-M establish that on December 10,
1980 MSHA Inspector William W. Wilson issued Citation 583706 ~/
alleging a violation of 30 C.F.R. § 55.9-22 at respondent's
tailings pond (Tr. 54-59; R-1). After a meeting in January,
1981, the citation was modified to indicate that it applied to
inclined access roads at the tailings pond (Tr. 60; Exhibit R-1).
MSHA apparently considered that § 55.9-22 applied to inclined
access roads (Tr. 60).
Respondent contested the foregoing citation and the issues,
as previously stated, were docketed before the Federal Mine
Safety and Health Review Commission in Case No. WEST 81-283-M.
The case was assigned to Commission Judge George A. Koutras
(Exhibit J-1).
Prior to a hearing the parties discussed a settlement. A
letter, approved by the company, was forwarded to MSHA's counsel.
It stated, in part,
Kennecott will withdraw its Notice of Contest of the
citation and the proposed civil penalty in this action
if the Department of Labor will agree that the penalty
to be imposed for the alleged infraction of that
mandatory standard cited will be $235.00. The currently
proposed penalty assessment is $295.00. In addition,
this settlement agreement will specify an understanding
that the specific standard which Kennecott is alleged

l/ The Secretary strenuously objected to respondent's evidence
relating to this citation (Tr. 54, 61-62).

2025

to have violated in Citation number 0583706, i.e. that
mandatory standard found at 30 C.F.R. § 55.9~22 would
be considered to apply at Kennecott's Arthur Concentrator, specifically the tailings pond area, only
to inclined access roads, and not to the entire tailings
pond dike. This is our understanding of the agreement
or understanding reached between Kennecott and the
Federal Mine Safety and Health Administration in the
termination of the citation which is the subject of
this proceeding.
(Tr. 155; Exhibit J-1).
Subsequently MSHA's counsel filed a motion before Judge
Koutras seeking his approval of the settlement. Paragraph number
2 of the motion states as follows:
It is to be noted in this settlement that the
mandatory standard found at 30 C.F.R. § 55.9-22 is
to be applied at Kennecott's Arthur Concentrator,
specifically the tailings pond area, only to inclined
access roads and not to the entire tailings pond dike.
See respondent's attached agreement.
(Exhibit J-1).
There was no hearing and on October 19, 1981, Judge Koutras
entered a decision approving the settlement.
As a result of the foregoing agreement the company believed
it did not have to seek a variance. Respondent's witness Pinder
indicated the company believed it would only have to berm
inclined access roads (Tr. 155). Pinder further stated that the
road cited in the pending cases was flat (Tr. 167).
In 1982 and 1983 MSHA's counsel and MSHA's representatives
Hansen and Plimpton disputed the company's position relating to
inclined roads (Tr. 161, 162, 182-184; Exhibit P-6).
In the instant cases Inspector Wilson explained that he
modified the 1980 citation to show that the road was inclined.
He sought to thereby distinguish it from the term "elevated" (Tr.
186-189). MSHA's position, as stated at this hearing, is that a
berm is required on an elevated, inclined, declined, or level
road (Tr. 190). The inspector did not intend to forever limit
MSHA's authority to issue citations on access roadways at respondent's tailings pond (Tr. 189).
WEST 82-155-M - Citation 579431
On January 26, 1982 Inspector William Wilson issued Citation
579431 alleging a violation of 30 C.F.R. § 55.9-22. The citation
alleges there was no berm or guard on the road adjacent to the
Magna dike pump house.

2026

Inspector Wilson had observed during his inspection that the
road providing access on the south side of the tailings pond was
unbermed and unguarded for approximately 150 feet <Tr. 15, 20-21).
The road, adjacent to the dike house, furnished primary access to
the dike area, other pump houses and pipes (Tr. 15). The road
was elevated 8 to 12 feet above an adjacent overflow drainage
stream CTr. 19-221 Pl, P2). If a vehicle overtraveled the road a
serious or fatal injury could result (Tr. 22, 23).
Individuals using the roadway included contractors,
maintenance personnel, electricians, dikemen, and supervisory
personnel (Tr. 15, 24).
A company representative discussed with the inspector the
problem caused by the berm trapping the rainwater. The area has
a history of collecting water (Tr. 29>. This citation was
terminated when a berm was installed (Tr. 31).
WEST 83-60-M - Citation 2083505
A year later, in January 1983, in the same area Inspector
Wilson found only remnants of a berm on the roadway. The conditions remained the same as in 1982 (Tr. 31-34). There were no
berms or guards for a 150 foot length of the roadway. There were
no means available to prevent overtravel on this portion of the
road (Tr. 35, 36J P3, P4). Citation 2083505 was issued (Tr.
31-32).
The 1982 citation had been designated as one of a signif icant and substantial nature. The inspector testified the 1983
citation should likewise have been designated as an S & S
violation (Tr. 37).
The 1982 and 1983 citations, if unabated, would ultimately
result in an injury (Tr. 38).
The area of the roadway without berms was inclined.
incline was very gentle, like a camel's hump (Tr. 78).

The

Discussion
Respondent's initial contention is that the decision of
Judge George A. Koutras, approving the settlement of the parties,
has a res adjudicata effect on the two citations in contest here.
It argues that the decision applied § 55.9-22 to "inclined" roads.
Further, respondent argues that since the road here is flat the
citations cannot be sustained.

Respondent's contentions lack merit. Section 55.9-22 does
not require berms based on the inclination of a road.
It is
obvious on the record here that this portion of the roadway was
elevated 8 to 12 feet above the adjacent stream (Tr. 20, 21;
Exhibits Pl, P2, R2, R3, R4). Accordingly, berms are required.
Respondent further contends that the roadway was flat;
therefore, no berms were necessary. On this credibility issue I
credit Inspector Wilson's testimony which is supported by the
photographs. The evidence is rather clear that the road was
inclined. But in any event whether the road was inclined is not
relevant under the regulation.
In addition, the doctrine of res judicata cannot be invoked
because at no time did Judge Koutras adjudicate the issues of
whether respondent violated the berm standard on this stretch of
roadway. The citations were issued for conditions that occurred
in 1980, in 1982 and in 1983. Each violative condition was
abated. Accordingly, in his decision on October 19, 1981, Judge
Koutras could not adjudicate conditions that did not occur until
1982 and later again in 1983.
Respondent further claims that MSHA's citations are barred
by the doctrine of collateral estoppel.
Virtually all of the evidence on this issue arises from the
letter forwarded to MSHA's counsel from res~ondent's counsel.
Subsequently, MSHA's counsel incorporated the letter in his
motion filed with Judge Koutras seeking approval of the settlement (Exhibit J-1). Other than in the modification of the 1980
citation, I note that MSHA's officials took no affirmative action
concerning what respondent now considers to be its agreement with
the Secretary.
At the outset we can agree that equitable estoppel is a rule
of justice which, in its proper field, prevails over all other
rules. City of Chetopa v. Board of County Com'rs, 156 Kan 290,
133 P. 2d 174, 177 (1943). Generally four elements must be
present to establish the defense of estoppel. These are (1) the
party to be estoppel must know the facts; (2) he must intend that
his conduct shall be acted on or must so act that the party
asserting the estoppel has the right to believe it is so
intended; (3) the latter must be ignorant of the true facts; and
(4) he must rely on the former's conduct to his injury. United
States v. Georgia Pacific Company, 421 F. 2d 92, 96, (1970),
(9th Cir.). In this case elements (3) and (4) are not factually
present in this record.

2028
. _____ ,,.

...

_,..,,....., ,.,.,. _,..,._.-. - -- ..

.

But ev~n if the record establis~ed all of the factual
elements to support the doct~ine it would not be applied to
deprive miners of the protection of the Mine Safety Act because
of a public official's mistaken action. Maxwell Company v. NLRB,
414 F. 2d 477 (1969); Udall v. Oelschlaeger, 389 F. 2d 974 (1968).
For a discussion of the doctrine of collateral estoppel also see
the Commission decision of King Knob Coal Company, Inc., 3 FMSHRC
1417 (1981).
For the foregoing reasons respondent's pleas of res adjudicata and collateral estoppel are denied.
The second contention is that 30 C.F.R. § 55.9-22 does not
apply to respondent's tailings pond.
Initially respondent argues
that 30 C.F.R. § 55.9 speaks to those activities in metal and
non-metal open pit mines that are defined in the scope note of
the section as "Loading, Hauling and Dumping."
Respondent's contention lacks merit. The Commission has
previously rejected this exact argument and ruled that the term
"hauling" should be broadly construed. The term includes
conveying men, ore, supplies or materials along elevated roadways
where the roadways are used in the practice of normal mining.
Cleveland Cliffs Iron Co. Inc., 3 FMSHRC 291, (1981).
The facts in this case clearly fall within the Commission's
definition in tha cited case. The unbermed roadway furnished
access to the dike house, the pump house, the electrical substations and the pipeway (Tr. 78). All of the roads are
interconnected .. It is uncontroverted that the inspector observed
respondent's personnel and its vehicles using the road (Tr. 83,
85, 87).
Respondent further claims that neither this Act nor its
predecessor, the Federal Metal and Non-Metallic Safety Act of
1966, include within their definitions of a mine the term
"tailings pond." Since 30 C.F.R. 55.9-22 became a standard under
the present Act by virtue of 30 U~S.C. 96l(b)(l) it is asserted
that the Secretary must engage in rulernaking procedures to apply
30 C.F.R. 55.9-22 to its tailings pond. In support of its
position respondent relies on Usery v. Kennecott Copper
Corporation, 577 F. 2d 1113, (10th Cir., 1977). In the cited
case the Secretary of Labor under the OSHA 2/ Act adopted an ANSI
standard but in the transition the Secretary changed a word from
"should" to "shall" without following any rulemaking procedures.

£/

Occupational Safety and Health Act of 1970, 29

seg.

2029

u.s.c. 651 et

Respondent's contentions lack merit. Even if one assumes
that respondent's tailings pond was not within the coverage of
the 1966 Act, the present Act remedied any such defect when the
Congress enacted an expansive definition of what constitutes a
"mine." Congress further stated that the Act· "must be given the
'broadest possible interpretation'" with "doubts resolved fn
favor of inclusion." Cypress Industrial Minerals Corp., 3 FMSHRC
1, (1981); See also Marshall v. Stout's Ferry Preparation Co.,
602 F. 2~ 589, 592 (3rd Cir. 1979). cert. denied, 444 U.S. 1015
(1980).
Respondent's cited case is not factually controlling. In
this case, by· adopting the Act Congress eliminated the necessity
of the Secretary to follow any rule making procedures ..to apply
the berm standard to a tailings pond.
Respondent's final argument centers on the proposition that
30 C.F.R. § 55.9-22 is fatally flawed. The focus of the argument
centers on the proposition that the regulation as promulgated is
advisory and not mandatory.
I agree with respondent's position. In order to resolve
these contentions it is necessary to review the public records
pertaining to the development of the berm standard at 30 C.F.R.
§ 55.9-22.
The standard, when initially proposed in 1969, read as
follows:
§ 55.9-26 Mandatory - OPAC
Berms or guards shall be provided on the outer
banks of elevated roadways.
(Emphasis added).
34 Fed. Reg. 656, January 16, 1969

Prior to the promulgation of the Chapter 55 standards
comments were solicited and received. The berm standard was not
promulgated a~ a part of the initial 30 C.F.R. Part 55 issuance
on July 31, 1969. See 34 Fed. Reg. 12503, 12506 (July 31, 1969).
Subsequently, the Secretary of the Interior, the official
responsible at that time, promulgated the following standard:
§ 55.9-22 Mandatory.
Berms or guards should be provided on the outer bank of elevated roadways.
(Emphasis added)
35 Fed. Reg. 3663, February 25, 1970.

The Secretary of the Interior, in commenting about the changes
between the originally proposed standards and the finally

2030

promulgated standards, stated, in part, in his prefactory
comments at 35 Federal Register 3663 as follows: "In a few instances in which the language of a proposed mandatory standard
appeared to impose a requirement not within the intendment of the
standard, the standard has been rephrased." The Secretary then
cites some examples, but there are no references to the berm
standard in his published remarks.
The situation then is that the Secretary originally proposed
a standard in a mandatory form (shall), received comments, and
finally promulgated the standard in an advisory form (should).
Clearly supportive of the "should" language in the standard is
the BNA ~/ Reference File which publishes 30 C.F.R. § 55.9-22 as
follows:
Mandatory. Berms and guards should be provided
on the outer bank of elevated roadways.
The Commission has not ruled on this issue. Cleveland
Cliffs Iron Co., Inc., supra, does not address the point; hence,
it cannot be considered as precedent.
A situation much akin to these facts can be found in Jim
Walter Resources, Inc., 3 FMSHRC 2488, at 2490 (1981). In the
cited case the Commission dealt with the phrase "shall be used as
a guide". In ruling the standard unenforceable the Commission
noted the mandatory nature of the word "shall," 4/ but concluded
the term "guide" was something less than a mandatory requirement.
The term "shall" has almost universally been considered as
the word used in regulations to express what is mandatory.
Marshall v. Pittsburg Des Moines Company et al, 584 F. 2d 638,
643 (3rd Cir., 1978); Usery v. Kennecott Copper Corporation,
supra; C.J.S. Statutes§ 380(a); Webster's New Collegiat~
Dictionary, 1056, (1979).
In sum, the Secretary pr6posed the standard in mandatory
form and promulgated it in advisory form. The Secretary's

ll

Bureau of National Affairs, Inc., Mine Safety and Health
Reporter.

!/

3 FMSHRC at 2490.

203i

comments are, at best, unclear as to why t-he change occurred.
These factors, in connection with the BNA publication, cause me
to conclude that the Secretary's proposal to access a civil
penalty cannot be sustained.
Based on the foregoing findings of fact and conclusions of
law I enter the. following:
ORDER
WEST 82-155-M
1. The proposed settlement agreement is approved and the
following citations and penalties are affirmed:
Citation
577649
577650
577651
579423
579426
577707
579429

Penalty
$ 24.00
40.00
20.00
26.00
26.00
72.00
52. 00

2. The following citations and all proposed penalties
therefor are vacated:
Citation
Citation

579422
579431

WEST 83-60-M
3. Citation 2083505 and all proposed penalties therefor are
vacated.
.
/

.i -/.'_,.{_____

....\

--J • /

' _..._

)/-'

,/c.("")/~-

~ohn

J. Morris
Administrative Law Judge
I

Distribution:
James H. Barkley, Esq., Peggy Miller, Esq., Office of the
Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961
Stout Street, Denver, Colorado 80294 (Certified Mail)
Kent W. Winterholler, Esq., Parsons, Behle & Latimer, 185 South
State Street, Salt Lake City, Utah 84147
(Certified Mail)
/blc

2032-

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

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-5-M
A.C. No. 42-01660-05501

v.

:

Ore Haulage Plant

KENNECOTT MINERALS COMPANY,
UTAH COPPER DIVISION,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Peggy Miller, Esq., Office
of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Petitioner;
Kent w. Winterholler, Esq., Parsons, Behle &
Latimer, Salt Lake City, Utah,
for Respondent.

Before:

Judge Morris

This case, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg., (the
Act), arose from an inspection of respondent's ore haulage plant.
The Secretary of Labor seeks to impose a civil penalty because
respondent allegedly violated a provision of the Act.
Respondent denies that a violation occurred.
After notice to the parties, a bearing on the merits was
held in Salt Lake City, Utah on September 20, 1983.
The parties waived the right to file post trial briefs.
Issues
The issues are whether respondent violated the Act; if so,
what penalty is appropriate.
Citation 579438
This citation alleges respondent violated Section 109(a) of
the Act. The cited section provides as follows:
Posting of Orders and Decisions
Section 109(a). At each coal or other mine there
shall be maintained an off ice with a conspicuous sign

203J

designating it as the office of such mine. There
shall be a bulletin board at such off ice or located
at a conspicuous place near an entrance of such mine,
in such manner that orders, citations, notices and
decisions required by law or regulation to be posted,
may be posted thereon, and be easily visible to all
persons desiring to read them, and be protected against
damage by weather and against unauthorized removal. A
copy of any order, citation, notice or decision required
by this Act to be given to an operator shall be delivered
to the office of the affected mine, and a copy shall be
immediately posted on the bulletin board of such mine
by the operator or his agent.
Summary of the Evidence
MSHA's evidence: On April 29, 1982, as the result of an
accident investigation at the ore haulage plant, MSHA Inspector
William w. Wilson issued Citation 579438. The citation, issued
at 2 a.m. was given to respondent's representative Frank Klobchar.
The citation was not posted while Wilson was on respondent's
property (Tr. 14-16, Exhibit Pl).
The following morning Fred Peterson, a representative of the
miners on the Magna Safety Committee of the United Steel Workers,
(Local 392), called Wilson and advised him that the citation
could not be located·. Thirty minutes later Wilson told Peterson
to recheck. On the recheck he was to be accompanied by a
witness. Peterson reconfirmed to Wilson that he could not locate
the citation (Tr. 16, 17).
Wilson went to the plant, arriving there at 9:30 a.m. on
April 30, 1982 (Tr. 17). Wilson looked on the track office
bulletin board but he did not find the citation (Tr. 18). The
accident for which the citation had been issued involved
primarily personnel from the track repair and maintenance crews
(Tr. 18). The time cards for these workers are kept at the
track yard office (Tr. 18).
Exhibit P2 indicates that respondent's concentrator plant
and ore haulage plant are, in their totality, complex areas. The
area includes a "time office", a "track yard office", and a small
"time clock office" (Tr. 19-20, Exhibit Pl, P2).
On April 30th Inspector Wilson checked but could not locate
the citation in the yard off ice or change room for the track yard
(Tr. 21).
Assignments are made by supervisors at the yard off ice~ In
addition, the supervisors' offices are there. Personnel also

change clothes there. The area also has a small lunchroom CTr.
21). At this location the trackmen (the class of workers
involved in the accident) usually ha,ve lunch, change and receive
their instructions (Tr. 22).
In the near vicinity, across a number of railroad tracks, is
the building known as the ntime clock.n This building, which is
also for the track people, had not been checked by the inspector
(Tr. 22) •
In a conversation with the inspector on April 30th between
9:45 a.m. and 10:30 a.m., respondent's safety representatives
indicated the citation had not been posted (Tr. 22-23>.
Inspector Wilson opted that the citation should have been
posted in the "track yard office." But he had checked and it was
not at that location CTr. 24, 25).
Witness Fred Peterson confirmed that he complained to MSHA
that the citation had not been posted. After calling the MSHA
office Peterson checked for the citation at the "time office",
the "yardmaster office", the ntrackmen change room", and the
"time clock" areas (Tr. 30).
In Peterson's view the normal procedure at the site is to
place information on the bulletin board at the yardmaster's
office. But the best location to convey the information would be
to post it on a small bulletin board inside the trackman's change
room (Tr. 32). Trackmen would not look for any information
posted at the "time clock" office (Tr. 32). Posting in the time
clock building would be contrary to Peterson's experience at the
plant (Tr. 32, 33).
Witness Steven Pollock, a trackman in April 1982, was
familiar with the "time clockn building. He punches in and out
at that location on a daily basis (Tr. 39-40). Iri April 1982 the
"time clock" building did not have a bulletin board (Tr. 40). In
Pollack's view the proper places to post notices is on the
bulletin board in front of the old change room or on one of the
two bulletin boards in the new change room (Tr. 41). Pollack
would never go to the "time clock" building for information (Tr.
41). Prior to this litigation Pollard hadn't seen any
information posted in the "time clock" building (Tr. 43).
In December 1983 the. Union Safety Committee, in a letter to
the company, requested that a bulletin board be maintained at the
concentrator plant time office for the posting of citations, etc.
(Exhibit P3).
Respondent's safety and health engineer Frank Klobchar
testified for the respondent.

2035

After he received the citation Klobchar made copies and went
to a staff meeting. He posted the citation between 5:00 to 5:30
p.m. in the ore haulage track time office building used by the
track people (Tr. 47-49). Wilson, in a telephone call, told
Klobchar that he had not looked for the citation at that
particular location CTr. 49).
Photographs, taken the following week, showed where the
citation had been posted by Klobchar (Tr. SO, Exhibit Rl}.
The practice has been to post citations at the time clocks.
Klobchar had never previously posted anything at the location
where he posted the April 29 citation (Tr. 53, 54).
Discussion
The facts establish a violation of the Act.
The citation issued on April 29th was not posted
"immediately" as the Act requires. Further, it was not, even
under respondent's evidence, posted at a location where it would
be protected against unauthorized removal.
On the initial issue Inspector Wilson testified that he
issued the citation at 2 a.m. on April 29 (Tr. 15-16). However,
the citation itself indicates it was issued at 10:20, on a 24
hour time clock. Even if it was issued at the later time, a
delay of more than six hours occurred before it was posted.
Klobchar testified the citation was not posted until 5:00 to 5:30
p.m.
"Immediately", as defined in Section 109(a} of the Act,
means "without interval of time, without delay, straightway, or
without any delay and lapse of time", Black's Law Dictionary, 5th
Edition, 1979.
~Further, respondent's witness Klobchar agrees that at the
location where he posted the citation there was nothing that
would have prevented its unauthorized removal (Tr. 54). In this
respect the location chosen, accordingly, did not comply with
Section 109(a) of the Act.
Procedural Issues
At the conclusion of the hearing respondent moved the judge
adopt the findings of fact contained in the judge's order of
March 2, 1983. The order denied respondent's motion for summary
judgment.
The Secretary's objection was sustained on the grounds that
such a procedure would effectively deny the Secretary his right
of cross-examination. The right of cross-examination is mandated
under the Administrative Procedure Act, 5 U.S.C. § 556. Further,

203ti

since the function of the judge when resolving a surrunary judgment
motion is to determine if a genuine factual dispute exists,
affidavits may not be employed to resolve disputed factual issues.
They may be used only to determine whether any issues actually
are in dispute. U.S. ex rel Jones v. Rundle, 453 F. 2d 147, 150,
Third Circait, Cl97l>i Fed. R. Civ. P., Rule 56.
Accordingly, I

reaffirm my original ruling.
CIVIL PENALTY

in 30

The six criteria for assessing a civil penalty are set forth
u.s.c. § 820(i).

Considering the evidence offered at the hearing on cases
heard at the same time as the instant case (WEST 81-242-Mi WEST
81-243-M) I find that the operator has a history of 58 prior
violations. The minimal penalty will not affect the operator's
ability to continue in business and it is appropriate in relation
to the large size of the operator. The operator was negligent
but a posting violation of this type is of minimal gravity. The
file reflects that the operator rapidly abated the violation.
On balance, the proposed penalty of $20 is appropriate and
it should be affirmed.
Based on the foregoing findings of fact and conclusions of
law, I enter the following:
ORDER
Citation 579438 and the proposed penalty of $20 are
affirmed.

(..· )~ /

'>~,._,__

.:>-~
,<
/)'-......-----

.

<---'

.. John J. >Jorris

l ·· Administ-fative Law Judge
Distribution:
James H. Barkley, Esq., Peggy Miller, Esq., Office of the
Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961
Stout Street, Denver, Colorado 80294 (Certified Mail)
Mr. Richard D. Baker, President, United Steelworkers of America
AFL-CIO, District 38, Sub-District 5, P.O. Box 220, Magna, Utah
84044
(Certified Mail>
Kent Winterholler, Esq., Parsons, Behle & Latimer, 185 South
State Street, Salt Lake City, Utah 84147 (Certified Mail)
/blc

2037

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

AUG 2 3 1914

CONTEST PROCEEDING

CONSOLIDATION COAL COMPANY,
Contestant .

Docket No. WEVA 84-2-R
Citation No. 2001967; 9/12/83

v.

-Rowland No. 3 Mine

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

.
CIVIL PENALTY PROCEEDING

SECRETARY OF L~OR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) , .
Petitioner

Docket No. WEVA 84-62
A. C. No. 46-01986-03511

v.

Rowland No. 3 Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Robert M. Vukas, Esq., Pittsburgh, Pennsylvania,
for Contestant/Respondent;
Kevin c. McCormick, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner/Respondent.

Before:

Judge Steffey

A hearing·-in the above-entitled consolidated proceeding
was held on June 13, 1984, in Beckley, West Virginia, pursuant
to section 105(d), 30 u.s.c. § 815(d), of the Federal Mine
Safety and Health Act of 1977. At the conclusion of presentation of evidence by both parties, I rendered a bench decision,
the substance of which is set forth below (Tr. 216-235).
This proceeding involves a notice of contest filed on
October 12, 1983, in Docket No. WEVA 84-2-R by Consolidation
Coal Company, seeking vacation of Citation No. 2001967 issued
on September 12, 1983, pursuant to section 104(a) of the Federal Mine Safety and Health Act of 1977, alleging a violation
of 30 C.F.R. § 75.200. This proceeding also pertains to a
petition for assessment of civil penalty filed on January 11,
1984, in Docket No. WEVA 84-62 by the Secretary of Labor, seeking to have a civil penalty assessed for the violation of section 75.200 alleged in Citation No. 2001967.

2038

In the notice of contest case, the issues are whether a
valid citation was issued and whether it should be sustained
or modified.
In the civil penalty case, the. issues are whether a violation occurred and, if so, what civil penalty should
be assessed, based on the six criteria set forth in section
llO(i) of the Act.
Before I formulate a conclusion as to whether a violation
occurred, it is necessary that I make some findings of fact
which will be set forth in enumerated paragraphs.
1. On September 12, 1983, Inspector Rosiek went to the
Rowland No. 3 Mine of Consolidation Coal Company. At the mine
he met a State inspector by the name of Lonnie Christian.
Since Inspector Rosiek had come to the mine for the purpose of
checking the provis'ions of the roof-control plan to determine
whether they were appropriate for the mining conditions that
then prevailed, it was the practice for a West Virginia inspector and an MSHA inspector to make the determination jointly
because the roof-control plan filed by the operator with MSHA
is also the one which West Virginia recognizes. They were accompanied on the inspection by the mine foreman, Jerry Toney.
2. They proceeded to the No. 3-C Section of the mine
where the mining crew was engaged in pillaring operations,
specifically Pillar No. 6. A cut through the center of the
pillar had already been taken, and while the inspectors were
observing the mining crew, an additional amount of coal, or
lift as they call it, was taken from the right corner of the
left wing. The inspector, at that point, indicated to the
mine foreman that he believed a violation had occurred of the
provisions of Drawing No. 4, page 21, of the roof-control
plan then in effect (Exh. 3).
3. The inspector remained in the vicinity of the No. 6
pillar until the miners began taking lifts in the sequence
shown on Drawing No. 4, according to which lifts marked as
two, three, four, five, and the pushout at the most outby portion of the right wing are removed.
Then the continuousmining machine is moved up the left entry and used to take
lifts six, seven, eight, nine, and the final pushout at the
most outby portion of the left wing.
4. The inspector marked the block on the citation which
is labeled "significant and substantial" !./ because he believed
1/ In Consolidation Coal Co., 6 FMSHRC 189 (1984), the Commission held that an inspector may properly designate a violation cited pursuant to section 104(a) of the Act as being
"significant and substantial" as that term is used in section
104(d) (1) of the Act, that is, that the violation is of such
nature that it could significantly and substantially contribute
to the cause and effect of a mine safety or health hazard.

2039

that removal of the right corner of the left wing would weaken
the support provided by the left wing and cause a redistribution of weight. His reason for that belief was based on the
fact that the lift taken from the right corner was about 12
feet wide at its inmost point and left only about 3 feet of
coal standing at the extreme end of the left wing. He felt
that if he remained in the ~icinity of active mining operations
until lifts six and seven had been taken, the danger would be
eliminated.
5.
Testimony was also given in this proceeding by an inspector named Darlie F. Anderson. Both Inspector Anderson and
Inspector Rosiek are what is known as coal mine inspectors
specializing in roof control. The difference between Inspector Anderson and Inspector Rosiek lies in the fact that Inspector Anderson has had a lot more practical experience than Inspector Rosiek, and apparently another reason for Inspector
Anderson's testifying, in addition to giving his opinion based
on his practical experience, was that he had participated in a
revision or modification of the roof-control plan which occurred after Inspector Rosiek's Citation No. 2001967 was issued.
The inspector had stated in Citation No. 2001967 (Exh. 4):
The approved roof control plan Permit No. 4-RC-1270-1141-14 was not being complied with in the No. 6
pillar on the 3-C(008-0) Section in that a lift was
taken from the left rib after the split had holed
through prior to mining the right wing. The sec~
tion was supervised by Rodney Reed, section foreman.
The change that was made in the roof-control plan, and
this change was made under the supervision and investigation of
Inspector Anderson, related to a change in Drawing No. 4 which
is shown on page 21 of the roof-control plan introduced as exhibit 5 in this proceeding. That change allows Consolidation
Coal Company to remove the right corner from the left wing of
a pillar after the split has been taken from the middle, and
that portion is to be no wider than seven feet at the inmost
point of the left wing. An additional change in the modification is that instead of inserting eight breaker posts at point
"E" shown on Drawing No. 4 of exhibit 5, only four breaker
posts are set prior to the taking of the right corner of the
left wing. After the right corner has been removed, then the
four breaker posts on the left of the letter "E" are installed,
together with five additional breaker posts, before the lift
on the right wing is taken.
6. A great deal of opinion testimony was necessarily involved in the proceeding, and both inspectors agreed that roof
conditions in this particular instance were good. Of course,

2040

Inspector Anderson was not present on September 12, but he was
given the fact that the roof conditions were good, and it was
his opinion that removal of the right corner of the left wing
was not a particularly dangerous act of mining.
Inspector
Rosiek's opinion was, as I have previously indicated, that removal of the right corner o.f the left wing did subject the
miners to additional danger as compared with not removing the
right corner.
7.
Consolidation Coal Company presented several witnesses,
the first one being Basil Green, who was the operator of the
continuous-mining machine on the day that the inspector wrote
the citation. He testified that it had been a question in his
mind as to whether i t was permissible to remove the right corner
of the left wing in the situation that he encountered on September 12, but that he had been assured by management that it was
in compliance with the roof-control plan for him to do so.
Consequently, he had been taking the right corner of the left
wing if a situation prevailed which he felt required him to do
so. The condition which Green believed to be necessary before
he would remove the right corner of the left wing was that
there be some indication of an override of the breaker posts
which are placed at the inmost portion of the left entry beside
the left wing of the pillar that is being removed. On September 12 he had found that the first four of the eight breaker
posts which are shown at the letter "A" on Drawing No. 4 of
exhibit 3 had been broken, and therefore he installed four additional breaker posts outby the four remaining posts. As a
result of that change in the location of the breaker posts, he
said that it was not possible to get the continuous-mining
machine up the left entry to the left of the left wing and
still remove all of the pillar because his access to the inmost portion of the left wing would be blocked by the additional breaker posts which had been set. And he also had the ability, because of his experience, to evaluate the entire
mining situation that prevailed at that time, and he said that
there had not been enough of an override to cause a redistribution of weight, so that he did not encounter or see any evidence of a sloughing off of the coal on either the left or the
right wing, and that since he did not see or hear any signs of
a change in the weight distribution of the roof, he thought it
was entirely safe to remove the right corner of the left wing.
That is what he did on September 12, and he did so even though
the mine foreman, Jerry Toney, was present, and he believed
that he was proceeding in accordance with the roof-control
plan. He testified that he would not take the right corner
if he felt that there was a redistribution of weight as a result of the breaking and resetting of the breaker posts in the
left entry as described above.

2041

8. Jerry Toney, the mine foreman, also testified, and it
was his belief that he was proceeding in accordance with the
roof-control plan. He said that he would not have allowed the
continuous-mining machine to take the right corner of the left
wing in the presence of a Federal and a West Virginia inspector
if he had not believed that it was appropriate, safe, and in
compliance with the roof-control plan, and that he felt that
no hazard existed because of the way they proceeded in this
instance.
A~other witness who appeared on-behalf of Consolidation
Coal Company was the superintendent of the mine, Norman Blankenship. He testified that he believed that he was entirely
within compliance of the roof-control plan because of the
second paragraph on page five of the roof-control plan. That
provision appear~ in both exhibits 3 and 5 and provides as
follows:

Where second mining is being done, management shall
show on a mine map the sequence of recovering pillars. Pillaring methods shall maintain a uniform
pillar line that eliminates pillar points and pillars that project inby the breakline. When conditions dictate that changes be made in the sequence
of pillar recovery, such changes shall be authorized by the superintendent or designated mine foreman for the shift involved and shall include additional precautionary measures to be taken to compensate for the abnormal conditions encountered.
It was Blankenship's opinion that the abnormal condition which
warranted deviation at the time the citation was written was
the breaking of the posts, or the indication of some override,
and that it was necessary that the right corner of the left
wing be removed because if that were not done that it would be
difficult, if not impossible, to get the inmost portion of the
left wing removed without.having the continuous-mining machine
proceed inby permanent supports. Consequently, if they could
not remove the last portion of the left wing by using the sequence of mining shown on Drawing No. 4 of the roof-control
plan in effect on September 12, 1983, sufficient coal would be
left standing to interfere with the normal dropping of the roof
as retreat mining occurred. Blankenship's testimony regarding
the adverse effect of leaving coal is supported by Jerry
Toney's and the inspector's testimony. In fact, all witnesses
agreed that leaving coal in a pillaring section is as dangerous
a situation as taking too much coal at a given point. Blankenship also explained that he had made a request for a change
in the roof-control plan after Inspector Rosiek had written
Citation No. 2001967 because he had not previously been cited
for having removed, or for having allowed the removal of the

2042

right corner of the left wing, and as far as he was concerned,
he had been in compliance, but having been cited for something
which had been the practice at Rowland No. 3 Mine for anywhere
from 5 to 10 years, he then concluded that it was necessary to
request a modification of the roof-control plan.
9. The request for th~ modification probably can best be
summarized by referring to exhibit A in this proceeding which
is a letter showing the type of change that Blankenship thought
was essential. That particular exhibit also has the signature
of both the day-shift and the evening-shift miners who worked
on the 3-C Section, including the signatures of not only the
section foremen and the mine foreman, but also the rank and
file miners who ran the continuous-mining machine and the helpers of the operators of the continuous-mining machine. The
theory behind tne request for the modification of the roofcontrol plan lies in· the fact that all of the miners apparently
pref er to have all of the coal removed any time a pillar is removed so that there will not be a residue of coal left to interfere with the smooth falling of the gob area as the pillars
get pulled in the retreat-mining process.
Those findings summarize the testimony and exhibits which
have been presented in this proceeding. Counsel for the Secretary and for Consolidation made concluding arguments. The
Secretary's counsel asserts that there was a violation of the
roof-control plan and he argues that it was improper for the
mine superintendent to rely upon the second paragraph on page
five of the roof-control plan as a device for saying that a
different sequence could be used from that shown in the drawing in the roof-control plan in effect on September 12, 1983.
The provision on which the superintendent relied has been
quoted in finding No. 8 above, and it. appears to me that the
superintendent is not entitled to rely upon that provision for
the purpose of changing the sequence of the removal of the
lifts that are shown in the roof-control plan. The reason for
my ruling is based on the third sentence in that paragraph
which provides, "When conditions dictate that changes be made
in the sequence of pillar recovery, such changes shall be
authorized by the superintendent or designated mine foreman
for the shift involved and shall include additional precautionary measures to be taken to compensate for the abnormal conditions encountered."
I interpret the quoted sentence to mean that the changes
must be made because of some very unusual circumstance that
has arisen, because the sentence states that the changes shall
be made "for the shift involved and shall include additional
precautionary measures". I believe that the situation that

2043

brought about the removal of the right corner of the left wing
in pillaring was something that occurred so frequently that it
would not be the type of abnormal condition that is contemplated
by the third sentence of that paragraph on page five.
I think that when there is a condition which required a
routine deviation from a particular provision of the roof-control
plan, that the operator is required to get the change formalized
in. the way that was done after the citation was written. The
operator of the continuous-mining machine said that if he removed 10 pillars, he might feel that it was desirable to remove
the right corner of the left wing two times out of 10. I believe that that is such a common occurrence that "the abnormal
conditions" do not exist which would permit the superintendent
to rely on the second paragraph on page five of the roof-control
plan. Since on .September 12, 1983, there was not any outstanding provision in the plan which permitted the taking of the
right corner of the left wing, as was done at that time, I believe that there was a violation of the roof-control plan as
alleged by the inspector.
The other point made by both counsel is that there is a
question as to whether the inspector properly checked on exhibit 4, which is the citation itself, the provision "significant and substantial". Of course counsel for the Secretary
argues that Inspector Rosiek properly checked S&S, while counsel for consolidation argues that he should not have checked
S&S.
A decision as to whether a violation has been properly
designated as being significant and substantial must be made
in light of the Commission's rulings in that area. The term
"significant and substantial" was first defined by the Commission in National Gypsum Co., 3 FMSHRC 822 (1981) at page 825,
where the Commission stated:
We hold that a violation is of such a nature as
could significantly and substantially contribute to
the cause and effect of a mine safety and health
hazard if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result
in an injury or an illness of a reasonably serious
nature.
As indicated in footnote 1 above, the Commission recently held
in a Consolidation Co~l case that an inspector may check the
words "significant and substantial" on a citation issued under
section 104(a) despite the fact that that particular language
is actually taken from section 104(d) (1) of the Act. Therefore, it was legally permissible for the inspector to check
the words "significant and substantial" on the citation here
involved which was issued under section 104(a) of the Act.

2044

In both the Consolidation case I just mentioned and in
Mathies Coal Co., 6 FMSHRC 1 (1984), the Commission applied
the definition of significant and substantial in four steps.
The first step was whether a violation occurred, and I have
already dealt with that by finding that a violation of the
roof-control plan occurred. The second step in the definition
of significant and substant.ial is whether the violation contributed a measure of danger to a discrete safety hazard. In
this instance, there was an alleged discrete safety hazard in
that Inspector Rosiek, who wrote the citation, believed that
the miners had been subjected to an additional hazard because
a certain amount of support that would have been on the left
wing had been removed, thereby leaving less area to support
the roof on the left side of the pillar. So there was a discrete safety hazard.
The third step in applying the definition is whether
there is a reasonable likelihood that the hazard contributed
to will result in injury.
The testimony is equivocal on whether the removal of that right corner of the left wing really
did bring about a reasonable likelihood that the hazard contributed to would result in an injury, because it is a fact
that Consolidation Coal Company was using 4-foot resin bolts
in the split which had been taken up through the middle of the
pillar, although its roof-control plan provided for a minimum
use of only 30-inch conventional bolts. Consol had used the
secure 4-foot resin bolts because it wanted to provide maximum
safety in the pillar removal operation which is necessarily
hazardous work.
The inspector, despite the fact that he wrote a violation
for the taking of that right corner of the left wing, still
allowed the continuous-mining machine to proceed in the normal
course of removing the pillar going through lifts two through
10, as shown in the drawing in the roof-control plan, and the
inspector believed that by the time the lift at the most inby
portion of the left wing had been taken, the danger had been
so minimized, that there was no longer any hazard. At that
point he left the section.
I cannot find on a preponderance of the evidence in this
case that there was a reasonable likelihood that the hazard
contributed to would result in an injury, because the only act
which had been done here was the removal of the right corner
of the left wing of the pillar, and there had been additional
breaker posts set before the other lifts were removed.
I cannot distinguish the claimed likelihood of injury in this instance on September 12 from the fact that subsequently to the
occurrence of the instant violation, Consol was allowed to
modify the roof-control plan to insert a provision which allows
Consol, on a routine basis, to take the right corner of the
left wing in almost exactly the same way it was being done on

2045

September 12, but under the new and current modification of the
roof-control plan, Consol is permitted to omit the setting of
four of the eight breaker posts that had been set on the day
that the inspector wrote the citation. So there has been a modification of the roof-control plan to allow, on a routine basis,
almost exactly the same procedure that was used on September 12.
The only difference now is that it is currently permissible under the roof-control plan to take the right corner of the left
wing, but on September 12 it was not permissible to do so.
The fourth step in application-of the significant and substantial definition is whether there is a reasonable likelihood
that the injury. in question will be of a reasonably serious
nature. Here again, I have to evaluate the seriousness and the
likelihood of injury on the basis of the type of work being performed. I think.all witnesses agreed that removing pillars is
a hazardous mining procedure. The people who do it have to be
trained and exp~rienped to watch for all sorts of indicators of
what hazards exist. Green, who was the operator of the continuous-mining machine, testified that he did take into consideration the question of whether there had been a weight distribution, whether there was sloughing of coal from the remaining
wings on each side, and he made a determination that the No. 6
pillar could be removed by taking the right corner 0£ the left
wing without exposing him or the other men on the crew to any
reasonable likelihood of a roof fall which would cause an
injury.
Inspector Rosiek, who wrote the citation, allowed them to
finish the taking of the No. 6 pillar, and while he asserted
tnat he felt that there was a very serious exposure to injury,
he also conceded and acknowledged the fact that if coal were
left on the inby portion of the ieft wing, rather than allowing
the miners to go in and take the right corner of the left wing,
a safety hazard will occur from the standpoint of future removal
of other pillars because there might not be the necessary uniform dropping of the gob area as retreat mining continued.
There has to be in retreat mining an overall consideration
of so many different factors, that I cannot find that the removal of the right corner of the left wing was a matter which
had a reasonable likelihood of injuring anyone in the way that
this particular operator of the continuous-mining machine proceeded on September 12. Therefore, I find that the. inspector
improperly checked S&S on Citation No. 2001967, and I find that
Consolidation Coal Company's notice of contest should be granted
to the limited extent that the citation should not show a designation of "significant and substanti~l".
Having found a violation, however, it is necessary that
a civil penalty be assessed. In order to do that, I have to
consider the six criteria listed in section llO(i) of the Act.

2048

The parties have stipulated to certain facts which deal with
several of the six criteria.
It has been stipulated that the
Rowland No. 3 Mine is owned and operated by Consolidation Coal
Company and that Consol showed a good-faith effort to achieve
rapid compliance after the citation was written.
As for the criterion of. the size of the company, it was
stipulated that Consol 1 s annual production is about 45,000,000
tons and that the Rowland No. 3 Mine produces about 199,000
tons per year.
Those figures support a finding that Consol is
a large operator. There was no stipulation as to whether the
payment of a penalty would cause Consol to discontinue in business, but the Commission held in Sellersburg Stone Co., 5
FMSHRC 287 (1983), aff'd Sellersburg Stone Co. v. FMSHRC,
F.2d
, 7th Circuit No. 83-1630, issued June 11, 1984, that
when no financial evidence is presented in a given case, a
judge may presurri.e that a company is able to pay a penalty without causing it to discontinue in business. Therefore, I conclude that payment of a penalty will riot cause Consol to discontinue in business.
The fourth criterion to be considered is history of prev-.
ious violations. Exhibit 7 is a computer printout of the history of previous violations at the Rowland No. 3 Mine for the
24 months preceding the writing of the citation here involved.
That exhibit shows that Consol has been cited for three previous violations of section 75.200. All three violations were
alleged in citations written pursuant to section 104(a) of the
Act. All three violations were cited on March 12, 1982, and
MSHA proposed a penalty of $112 for each violation. Those
facts support a conclusion that Consol has not been cited for
a particularly serious previous violation of section 75.200 at
its Rowland No. 3 Mine. While the legislative history shows
that Congress intended for the criterion of history of previous
violations to be applied so as to increase the penalty progressively for each repeated violation of the same standard, 2/
Congress was concerned about repetitious violations which-had
occurred·within a few months of the violation under consideration at a given time. The evidence in this instance shows
that Consol has not violated section 75.200 at all during the
18 months preceding the occurrence of the violation here under
consideration.
In such circumstances, I find that Consol has
a favorable history of previous violations which supports a
conclusion that no portion of the penalty should be assessed
under the criterion of history of previous violations.
The fifth criterion is negligence. As to that criterion,
the inspector checked the word "moderate" in item 20 on Citation No. 2001967. The evidence shows that Consol's negligence
2/ LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH
ACT OF 1977, at 631 (1978).

204'7

is even less than the inspector indicated because Consol's
management believed that the company had a right under the
roof-control plan in effect when the citation was written to
extract pillars in the way the miners were operating on September 12, 1983. The argument made by Consol in support of
its having proceeded the way it did is logical and it is a
position which had some merit, particularly in view of the
fact that the taking of the·right corner of the left wing was
a practice which had been followed for from 5 to 10 years
prior to the writing of the citation involved in this case.
Consequently, I find that the degree of negligence associated
with the violation was very low, bordering on none. For the
aforesaid reasons, I conclude that no portion of the penalty
should be asses.sed under the criterion of negligence.
The sixth and final criterion to be considered is gravity.·
I have already i-ndicated above in my discussion of the term
"significant and substantial" that there was no reasonable
likelihood that anyone would be injured from the cut that was
taken off the right corner of the left wing.
In such circumstances, there is hardly any reason to assess a penalty apart
from the fact that assessment of a penalty is mandatory under
the Act once a violation is found to have occurred. Tazco, Inc.,
3 FMSHRC 1895 (1981).
In view of the fact that a large operator is involved, I believe that a minimal penalty of $25 should
be assessed for the violation of section 75.200 alleged in
Citation No. 2001967.
The Commission held in C.C.C.-Pompey Coal Co., Inc., 2
FMSHRC 1195 (1980), that a judge is obligated to reconsider any
rulings made in a bench decision if, during the interim between
the rendering of the bench decision and its issuance in final
form, the Corrunission issues a decision establishing a precedent
which conflicts with the rulings made by the judge in his bench
decision. The holding in the Pompey case applies to the bench
decision set forth above because the Commission issued a decision in United States Steel Corp., 6 FMSHRC 1423 (1984), after
I had rendered the bench decision in this proceeding, in which
the Corrunission majority reduced one of my civil penalties from
$1,500 to $400 and another penalty from $80 to $70.
I have
carefully reviewed the findings made in the bench decision
and I do not believe that they conflict in any way with the
holdings made by the Commission majority in the u. s. Steel
case.
Therefore, I do not think that the penalty of $25
assessed in the bench decision needs to be further reduced in
light of the Commission's U. s. Steel decision.
WHEREFORE, i t is ordered:
(A)
Consolidation Coal Company's notice of contest filed
in Docket No. WEVA 84~2-R is granted to the extent of modifying Citation No. 2001967 issued September 12, 1983, to delete

2048

the checking of the term "significant and substantial" initem
No. lla of the citation. The notice of contest is otherwise
denied and the citation is otherwise affirmed.
(B) Within 30 days after issuance of this decision, Consolidation Coal Company shall pay a civil penalty of $25.00
for the violation of section 75.200 alleged in Citation No.
2001967 issued.September 12, 1983.

~a.o.3~

Richard c. Steffei~
Administrative Law Judge

Distribution:
Robert M. Vukas, Esq., Consolidation Coal Company, 1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Kevin c. McCormick, Esq., Office of the Solicitor, u. s. Department of Labor, Room 1237A, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)

yh

. 2049

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

~UG 24 1984

CONTEST PROCEEDINGS

ENERGY COAL INCOME
PARTNERSHIP, 1981-1,
Contestant

Docket No. KENT 83-30-R
Citation No. 2053481; 11/4/82

v.
Docket No. KENT 83-31-R
Citation No. 2004021; 10/22/82

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

Docket No. KENT 83-32-R
Citation No. 2004022; 10/22/82
Docket No. KENT 83-33-R
Order No. 2004023; 10/22/82
Docket No. KENT 83-34-R
Citation No. 2053293; 10/22/82
Docket No. KENT 83-35-R
Citation No. 2053294; 10/22/82
Docket No. KENT 83-36-R
Citati~n No. 2053295; 10/22/82
Docket No. KENT 83-37-R
Citation No. 2053296; 10/22/82
No. 15 Surface Mine

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 83-153
A.C. No. 15-13382-03505

v.

Docket No. KENT 83-154
A.C. No. 15-13382-03504

ENERGY COAL INCOME
PARTNERSHIP, 1981-1,
Respondent

Docket No. KENT 83-169
A.C. No. 15-13382-03506
No. 15 Surface Mine

SETTLEMENT DECISION
Before:

Judge Melick

These consolidated cases are before me upon petitions
for assessment of civil penalty and contests filed under section

2050

lOS(d) of the Federal Mine Safety and Health Act of 1977 (the
Act). On October 20, 1983, the parties submitted a joint
proposal for settlement of the captioned civil penalty proceedings and a request for withdrawal of all associated
contest proceedings. On 'November 28, 1983, the undersigned
requested additional information deemed necessary for consideration of the settlement motion. Information was submitted
on December 2, 1983, December 5, 1983, May 3, 1984 and,
subsequent to teleconference hearings on the motion on
May 30, 1984, on June 26, 1984, July 5, 1984, and July 12,
1984. The motion for settlement was amended on July 5, 1984,
in that the mine operator indicated a willingness to pay the
full amount of penalties as originally proposed by the
Secretary .rather than the reduced amounts first suggested in
the motion for settlement.
·
These cases arise from the death of bulldozer operator
Bernard Farrar on October 20, 1982, at the No. 15 Surface
Mine of the Energy Coal Income Partnership in Davella,
Kentucky. His death occurred when the outer portion of the
bench-roadway over the highwall collapsed under the weight
of the bulldozer he was operating. The deceased was thrown
out and crushed by the bulldozer as it rolled over. The
investigation revealed that the bulldozer's seat belts had
previously been removed.
The evidence shows that earlier on the day of the
incident the day shift bulldozer operator had been .working
on the south side of the surf ace operation. At the completion
of his shift as he approached the highwall catch-bench
roadway from the south side to return to the portal he
observed that part of the highwall berm had collapsed. He
thereupon built a "barricade" of dirt with his bulldozer as
a warning to persons travelling south to north. The operator
then constructed a new roadway through the pit.
The day shift supervisor on the south side, Manuel
Ward, shortly thereafter travelled towards the catch bench
and saw the high wall errosion, the barricade, and the new
roadway. While he decided to drive through the pit over
the new road he took no action to barricade or close off the
other end of the road and did not report the dangerous
conditions. Shortly before 4 p.m. mine superintendent Mike
Cantrell and second shift foreman Jarvis Hackworth travelled
over the subject roadway. Cantrell saw the slip starting on
the outer edge of the roadway. He said that he told Hackworth
not to use the road but Cantrell nevertheless continued to
use the road himself and, indeed, drove right over the dirt
barrier that had been erected by the day shift bulldozer
operator at the south end. Hackworth also continued to use
the subject road and later transported the deceased and
another miner over the same road.

2051

There were no entries in the on-shift examination books
reflecting any unstable or hazardous conditions on the bench
roadway and, indeed, .the only entries indicate that the
road and highwall conditions were "good." The evidence also
shows that aside from the efforts of the day shift bulldozer
operator to erect a dirt barricade at one entrance to the
roadway the deteriorating high wall and roadway conditions
were not properly reported, corrected, nor barricaded.
Moreover, while it appears that the mine superintendent
expressed some concern about the continued use of the subject
roadway because of its deteriorating condition, he and his
foreman continued to use that roadway and indeed the victim
himself was transported across that roadway by the foreman
shortly before the fatal accident. The message reasonably
inf erred under the circumstances was that management was not
seriously concerned with the dangerous road condition and
there was no immediate need to stop using it.
Citation No. 2004021 alleges a violation of the standard
at 30 CFR § 77.1713 for failing to record or correct the
unstable condition of the catch-bench roadway and in failing
to properly barricade the roadway to prevent access. A civil
penalty of $10,000 was initially proposed by the Secretary and
a reduction to $5,000 was proposed in the initial motion for
settlement. The representations in that motion in support
of the penalty reduction are not however, supported by the
investigative report and statements of witnesses.
Indeed in
material respects the representations are in direct conflict
with the investigative report.
The report and the evidence
in support thereof were available at the time the penalty of
$10,000 was assessed and, according to Special MSHA Investigator John S. South, no new evidence has since been developed
concerning the violations.
Manuel Ward, the day shift foreman, admittedly had seen
the dangerous conditions of the highwall road toward the end
of his shift around 3:30 of the afternoon at issue and
observed the dirt barricade erected by the day shift bulldozer operator at the south end of the road. Ward nevertheless failed to report the unstable condition and failed to
see that the north end of the roadway was barricaded.
In
light of his clear knowledge that the road was unsafe to
travel, I find his failure to report and correct the road
condition to have been an omission of gross negligence.
According to the night shift foreman, Jarvis Hackworth,
at the beginning of his shift at 4 p.m., Mine Superintendent
Mike Cantrell told him "we're going to have to quit using
this road" referring to the subject catch-bench roadway.
Even assuming, arguendo, that such a statement had been made
it apparently was made with no intent of immediate enforcement since Hackworth immediately thereafter drove his pickup truck over that very same road with the deceased as one

2052

of his passengers. Hackworth conceded moreover that even
the barricade erected by the day shift bulldozer operator at
the south end of the road was not sufficient to block the
road and that he twice drove over the barricade with his
pick-up truck -- once with the deceased as his passenger.
The road had still not been properly barricaded nor reported
by 6:45 p.m. when the fatality occurred.
Mine Superintendent Mike Cantrell stated that during
the course of the day shift and between shifts he had travelled
over the subject roadway several times. Passing over the
road around 3:30 that afternoon he saw that the berm had
disappeared and he concluded at that point that the road was
hazardous. He thought he had told night shift foreman
Jarvis Hackworth that the road was "slipping off or breaking
off" but did not instruct Hackworth to barricade or close
the road off.
Within this framework of evidence it is clear that the
fatal accident that is the subject of this proceeding was the
result of gross negligence. Management personnel concede that
the condition was hazardous and the seriousness of the hazard
is evident from the accident that did in fact occur.
As further justification for the proposed penalty
reduction the mine operator presented information concerning
its financial condition incuding financial statements and
the history of the petition for reorganization und~r Chapter
11 of the Bankruptcy Act.
I have taken this information
into consideration.
In light of the high gravity and gross
negligence associated with this fatal accident and considering
the history of violations and size of the mine operator
involved, it is clear that a penalty of $10,000 would ordinarily
be warranted.
Considering however, the financial condition
of the operator and that the facts underlying this violation
are essentially the same as those supporting other violations
and penalties in these cases, I believe a penalty of $7,500
is appropriate.
Citations No. 2053293 and 2053294 allege violations of
standards at 30 C.F.R. § 77.170l(i) and 30 C.F.R. § 77.403
respectively, and primarily concern the failure of the mine
operator to have provided operative seat belts on the
subject bulldozer. The evidence shows that the buckle or
fastening device had been removed thus rendering the belts
inoperative.
The investigators concluded that had the
deceased been wearing a seat belt he would not have .been
killed. The mine operator has agreed to pay the in.i ti ally
proposed penalties in full and considering the cri~eria
under section llO(i) of the Act, I find the penalties to be
appropriate.

2053

· Citation No. 2053295 alleges a violation of the standard
at 30 C.F.R. § 77.1606(c) and charges more particularly that
the left brake on the subject bulldozer was defective causing
a sharp left turn upon application. The investigators could
not however, conclude that the cited defect either contributed
or did not contribute to the fatal accident. The mine
operator has agreed to pay the initially proposed penalty in
.full and considering the criteria under section llO(i) of
the Act I feel that the proposed penalty is justified.
Citation No •.2053296 alleges a violation of the standard
at 30 C.F. R •. S 77 .1001 and charges that loose hazardous
. material had not been stripped for a safe distance from the
top of the high wall and that loose and unconsolidated
material had not been sloped to an angle of repose. The
mine operator has agreed t.o pay the proposed penalty in
full. The underlying facts supporting this violation are
the same as those supporting the violation in Citation No.
2004021 and for which I have assessed a penalty of $7,500.
To the extent that the factual basis for the violations is
similar it would be inappropriate to assess another penalty
of the same magnitude. Under the circumstances I find that
the proposed penalty is appropriate.
ORDER
Energy Coal Income Partnership (1981-1) is hereby
ORDERED to pay the following civil penalties within 30 days
from the date of this decision: Citation No. 2004021 $7,500, Citation No. 2053293 - $227, Citation No. 2053294 $2,000, Citation No. 2053295 - $227, nd Citation No. 2053296 $227. The requests to withdraw Conte ,t Proceedings, Docket
Nos. KENT 83-30-R through KENT 83-37- 1 are granted and the

\~Q~

cases are dismissed.

Administrative Law Judge

Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department of
Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37230
(Certified Mail)
/ejp

2054

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

GARY GOFF,

AUG 2 4 1984

:

DISCRIMINATION PROCEEDING

:
:

Docket No. LAKE 84-86-D
MSHA Case No. VINC CD 84-03

:

Nelms No. 2 Mine

Complainant

v.
THE YOUGHIOGHENY AND OHIO
COAL COMPANY,
Respondent

DECISION GRANTING DISMISSAL
Before:

Judge Melick

In his complaint filed with this Commission on July 6,
1984, the Complainant, Mr. Goff, alleges that he was dis- ·
charged by Respondent in violation of section 105(c)(l) of
the Federal Mine Safety and Health Act of 1977, the "1977
Act" 1 because of an underlying medical condition,
pneumoconiosis.
In John Matala v. Consolidation Coal Company, 1 FMSHRC
1 (1979), the Commission held that review of discrimination
complaints of a miner based on allegations that the miner
1

Section lOSCc)(l) of the 1977 Act provides as follows:
"No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of th~
statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject
to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under
or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of
the miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine of an
alleged danger or safety or health violation in a coal or
other mine, or because such miner, representative of miners
or applicant for employment is the subject of medical evaluations and potential transfer under a standard published pursuant to section 101 or because such miner, representative
of miners or applicant for employment has instituted or
caused to be instituted any proceeding under or related to
this Act or has testified or is about to testify in any such
proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of
himself or others of any statutory right afforded by this
Act."

2055

suffers from pneumoconiosis should be resolved under the
specific statutory provisions set forth in section 428(b) of
the Black Lung Benefits Act 2 rather than under the
2 Section 428 of the Black Lung Benefits Act provides as
follows:
"(a) Mine operators. No operator shall discharge or
in any other way discriminate against any miner employed by
him by reason of the fact that such miner is suffering from
pneumoconiosis. No person shall cause or attempt to cause
an operator to violate this section. For the purposes of
this subsection the term "miner" shall not include any person who has been found to be totally disabled.
(b) Determination by Secretary1 procedure. Any miner
who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection
(a) of this section, or any representative of such miner
may, within ninety days after such violation occurs, apply
to the Secretary for a review of such alleged discharge or
discrimination. A copy of the application shall be sent to
such person who shall be the respondent. Upon receipt of
such application, the Secretary shall cause such investigation to be made as he deems appropriate. Such investigation
shall provide an opportunity for a public hearing at the
request of any party to enable the parties to present inf orma tion relating to such violation. The parties shall be
given written notice of the time and place of the hearing at
least five days prior to the hearing. Any such hearing
shall be of record and shall be subject to section 554 of
Title 5. Each administrative law judge presiding under this
section and under the provisions of subchapters I, II, and
III of this chapter shall receive compensation at a rate not
less than that prescribed for GS-16 under section section
5332 of Title 5. Upon receiving the report of such investigation, the Secretary shall make findings of fact. If he
finds that such violation did occur, he shall issue a decision, incorporating an order therein, requiring the person
committing such violation to take such affirmative action as
the Secretary deems appropriate, including, but not limited
to, the rehiring or reinstatement of the miner to his former
position with back pay. If he finds that there was no such
violation, he shall issue an order denying the application.
Such order shall incorporate the Secretary's findings
therein.
(c) Costs and penalties. Whenever an order is issued
under this subsection granting relief to a miner at the
request of such miner, a sum equal to the aggregate amount
of all costs and expenses (including the attorney's fees) as
determined by the Secretary to have been reasonably incurred
bu such miner for, or in connection with, the institution
and prosecution of such proceedings, shall be assessed
against the person committing the violation."

2058

general anti-discrimination provisions of section llO(b) of
the Federal Coal Mine Health and Safety Act of 1969, the
"1969 Act." That case was, therefore, in accordance with
section 428 of the Black Lung Benefits Act, transferred to
the Department of Labor for adjudication by one of its administrative law judges.
While the anti-discrimination provisions. of section
105(c)(l) of the 1977 Act replacing and enhancing the provisions of section llQ(b) of the 1969 Act are broader in
coverage than the comparable provisions of the 1969 Act, the
rationale for having discrimination complaints based on allegations that the miner suffers from pneumoconiosis resolved
under the specific statutory provisions set forth in the
Black Lung Benefits Act has continuing validity.
Accordingly, it is appropriate to dismiss further proceedings before this Commission in this case. If the
Complainant wishes to proceed with this matter, he should
apply to the Secretary of Labor in accordance with section
428 of the Black Lung Benefits Act. 3
ORDER
is

Case Docket No. LAKE

Administrative Law Judge
Distribution:
Jacobsburg, OH 43933

Mr. Gary Goff, 57
(Certified Mail> '

Gerald P. Du~f, Esq., Kinder, Kinder & Hanlon, 185 West Main
Street, St. Clairsville, OH 43950 (Certified Mail>

3 While Mr~ -Goff's complaint that he presumably filed with
the Secretary of Labor under section 105(c)(2) of the Act
has not been made a part of this record, it appears from
Respondent's pleadings that the specific complaint of
discrimination now raised before this Commission was not
previously brought to the attention of the Secretary.
/fb

2057

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

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

AUG 2 9 1984

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 83-70
A.C. No. 36-03425-03511

v.
Docket No. PENN 83-78
A.C. No. 36-03425-03512

U.S. STEEL MINING CO., INC.,
. Respondent

Maple Creek No. 2 Mine
UNITED MINE WORKERS OF
AMERICA, LOCAL 2300,
Intervenors

.....

Docket No. PENN 83-77
A.C. No. 36-04281-03505
Dilworth Mine
Docket No. PENN 83-94
A.C. No. 36-00970-03514
Maple Creek No. 1 Mine
Docket.No. PENN 83-74
A.C. No. 36-05018-03508
Docket No. PENN 83-75
A.C. No. 36-05018-035Q9
Docket No. PENN 83-76
A.C. No. 36-05018-03510
Cumberland Mine

DECISION
Appearances:

Howard K. Agran, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., U.S. Steel Mining Co.,
Inc., for Respondent.

Before:

Judge Kennedy

The notice of contest in each of the captioned penalty
proceedings admitted the fact of violation but challenged the
S&S findings.
After a lengthy consolidated hearing·in Morgantown,
West Virginia, the matters are before me on the oper-ator' s
exceptions to 17 of my 27 bench decisions.

2058'

The parties' stipulations with respect to the operator's
size, prior violations, ability to pay, and promptness in
abatement are set forth in the -record and were considered and
incorporated by reference in the bench decisions. As indicated,
the disputed issues focused on gravity, likelihood of contribution to another mine hazard, and negligence or culpability.
Decisions Accepted As Final ·
The operator filed no exceptions to the bench decisions
assessing penalties for the following ten violations:
Docket No.

Citation

PENN 83-70
PENN 83-76

2013726
2013047
2013052
2013056
1144515
2012080
2013734
2013737
9901321
2014016

PENN 83-77
PENN 83-78
PENN 83-94

Amount
$242
259
178
50
20
25
200
227
178
30
$1,409

Decisions Rejecting the $20 Minimal Penalty Limitation.
Eight of the bench decisions rejected the operator's
challenge to the trial judge's jurisdiction and authority-to
assess penalties of more than $20 for violations which he
found were not significant and substantial.
In May 1982, MSHA inaugurated an alternate dispute
resolution policy for contested violations. Under this program,
the District Managers were authorized to act as substitutes
for the neutral decisionmakers established under section 113
of the Act, 30 U.S.C. § 823, and to conduct off-the-record, ex
parte reviews of contested violations. Further, District
~
Managers were authorized to vacate or reduce to $20 the penalty
for any violation promptly abated which they found "was not
reasonably likely to result in a reasonably serious injury or
illness." 30 C.F.R. 100.4.
The purpose of the new procedure was to insure the success
of the administration's new non-adversary, cooperative enforcement policy. District Managers and their delegates do not, of
course, enjoy the decisional independence and security of tenure
of the Commission and its trial judges. Thus, when conscientious
mine inspectors failed to follow the lax enforcement policy a
mechanism was readily available to discipline the inspectorate
through wholesale application of the ex parte review procedure.

205J

---

An example of the policy in action was described in the Commission's decision in Bethlehem Mines, 6 FMSHRC 91, 96-101 (1964). 1/
In an effort to expand the "cooperative enforcement"
policy to the limits of its logic, U.S. Steel took the lead in
the move to persuade the Commission to require its trial judges
to defer to MSHA's no-fault .penalty policy by denying them
authority to make de novo determinations of the gravity, negligence and penaltieS-warranted for non-S&S violations. An
editorial in the Courier/Journal for July 11, 1984, copy
attached, noted that big bucks are involved in the "current
emphasis on leniency and cooperation." For example, in the
first full year under the $20 minimal penalty policy MSHA
succeeded in reducing operators' penalties by $9.7 million
dollars. Such a drastic reduction in penalties signals that
mine safety and health is no longer the first priority of
business with MSHA.
1/ A recent editorial in the Louisville Courtier/Journal headlined "Mine Safety Agency Bespatters Its Own Image," described
the effects of the new policy as follows:
Mine inspectors who hear more talk from the higherups
about "cooperation" with safety law violators than about
firmness are likely to feel that safety isn't the first
order of business. When their citations frequently are
thrown out or watered down--often without consultation
with those who issued them--suspicions seem confirmed.
According to an in depth investigative report published in the
same paper on Saturday July 7, 1984, the public perception is
that the District Managers' evaluation of 70% or more of their
inspectors' citations as insignificant and inconsequential has
undermined inspector morale and effective enforcement of the
Mine Safety Law. During the first year of operation under the
new policy the administration succeeded in .reducing the
industry's liability for civil penalties for safety violations
by over 60%. One of the principal justifications for the
no-fault violation policy was to reward operators for prompt
abatement of hazardous conditions.
Ironically, the effect
has been just the opposite because operators have learned that
the cost of noncompliance, $20, is cheaper than the cost of
voluntary compliance. Thus, instead of encouraging voluntary
compliance the new policy has provided a negative incentive
for voluntary abatement of identified hazards. Compare 47 F.R.
22291 (May 1982) with MSHA Documents quoted in Courier/Journal
Article, supra. See, also CNN Documentary "Mine Safety,
Death, and The Bureaucracy" alleging lax and corrupt enforcement of the Mine Safety Law.

2060

Recognizing the potential for almost total emasculation
of the Act's civil penalty provisions, the Commission's trial
judges stoutly resisted the U.S. Steel's insistance that the
Commission's mandate to act as an independent adjudicatory
agency (Article I Court) be subordinated to the operator's
interest in promoting the $20 no-fault penalty policy. The
first Commission ruling op the matter occurred on May 31,
1984, when, in a decision affirming an earlier ruling by
Judge Broderick, the Commission held that as a matter of law
its trial judges were not bound by MSHA's penalty proposals
and as a matter of policy should not be.
As the Commission observed:
The Mine Act divides penalty assessment authority
between the Secretary of Labor and the Commission. The
Secretary proposes penalties. The Commission assesses
penalties. The Secretary's penalty proposals are made
before hearing. In the event of a challenge to the
Secretary's proposal, the Commission affords the
opportunity for a hearing. Thereafter, the Commission
assesses penalties based on record information developed
in the course of the adjudicative proceeding • • .
In assessing a penalty the Commission and its judges
are required to consider the six statutory penalty
criteria set forth in section llO(i) of the Act (30
U.S.C. § 820(i)). Thus, the Commission's penalty
assessment is not based upon the penalty proposal made
by the Secretary, but rather on an independent consideration of the six statutory penalty criteria and the
evidence of record pertaining to those crite~ia • . •
The Act does not condition the penalty assessment
authority and duties of the Commission upon the manner
in which the Secretary of Labor has chosen to implement
his statutory responsibility for proposing penalties.
Therefore, it is irrelevant to the Commission for
penalty assessment purposes whether a penalty proposed
by the Secretary in a particular case was processed
under § 100.3, § 100.4, or § 100.5 of the Secretary's
regulations. The distinctions that U.S. Steel attempts
to draw in this proceeding between a § 100.3 or § 100.4
penalty proposal by the Secretary are without merit
and are rejected. Secretary v. United States Steel
Mining Co., Inc., 6 FMSHRC 1148, 1150 (1984).
The Commission also rejected the suggestion that "as a matter
of policy" it should require its judges to defer to MSHA's
no-fault violation policy. Noting that such a "policy" would
"unwisely restrict the wide discretion the Act affords the
Commission in assessing civil penalties" the Commission held

2061

that it, and its judges, must exercise an independent discretion to insure that the penalties assessed "are effective" and
"encourage operator compliance." ~/
On June 11, 1984, the United States Court of Appeals for
the Seventh Circuit confirmed that Part 100 is not binding on
the determination of penalties by either the Commission or its
trial judges. Sellersburg Stone Co. v. Secretary,
F.2d
No. 83-1630, 7th Cir. 1984.

---

As the court noted,
• • • we find no basis upon which to conclude that
these MSHA regulations also govern the Commission.
It cannot be disputed that the Commission and its

2/ A month later, however, the Commission reneged on its
holding that penalties must be assessed on the basis of the
record evidence by substituting for "reasons unknown or at
least unexplained" MSHA's proposed penalties for the carefully
crafted, neutrally oriented findings of its trial judge.
Secretary v. United States Steel Mining Co., Inc., 6 FMSHRC
1423 (1984), (dissenting opinion). As the dissenting
Commissioner noted, when the Commission "embarks on the
uncharted waters of independent penalty assessment" the
results are highly inconsistent and "furnish no guidance"
for either the parties or its trial judges. Compare
Sellersberg Stone Co., 5 FMSHRC 287 (1983) (Commission
unamimously upheld Judge's $2,000 penalty for interference
with MSHA's ability to investigate), with United States
Steel Mining, supra (majority arbitrarily reduced penalty for
interfering with inspector's ability to investigate from
$1,500 to $400).
The propensity of the Commission's operator oriented
majority to disregard adjudicated penalty findings and to
defer, without rational explanation, to the Labor Department's
extra-record penalty proposals for serious violations tends
to undermine confidence in the neutrality and fairness of the
Commission's decisions and to thwart the public interest in
effective enforcement of the Mine Safety Law. Compare
Southern Ohio Coal Co., 4 FMSHRC 1459 (dissenting opinion);
United States Steel Mining, supra (dissenting opinion). A
penalty assessment policy that substitutes whim and caprice
for principled decisionmaking or that places the welfare of
miners below that of stockholders or mine management violates
not only the spirit but the letter of the Mine Safety Law.

2062

ALJ's constitute an adjudicative body that is
independent of MSHA. Sen. Rep. No. 461, 95th Cong.,
1st Sess. 38 (1977). This body is governed by its
own regulations, which explicitly state that, in
assessing penalties, it need not adopt the proposed
penalties of the Secretary, 29 C.F.R. § 2700.29(b)
(1983)." Slip Op. 9-10.
For these reasons, I find the operator's challenge to
my independent assessment of penalties for the following
non-S&S violations is without merit. Accordingly, it is
ordered that the bench decisions be, and hereby are, AFFIRMED,
and the operator pay the penalties assessed.
Docket No.

Citation

Amount

PENN 83-74

2012781
2012784
2011622
2013730
2013731
2014005
2014016
2014013

$100
100
75
100
75
50
30
50
$580

PENN 83-75
PENN 83-78
PENN 83-94

Total

The Decisions Rejecting the Challenges to S&S Findings.
The Secretary takes exception to one decision that
rejected MSHA's S&S finding and the operator challenges
eight bench decisions that sustained such findings.
Based
on an independent evaluation and de novo review of the record
evidence my findings and conclusions with respect to these
nine violations is as follows:
3/
I.

Docket No. PENN 83-74 - Cumberland Mine
A.

·citation 2013043

On October 19, 1982, the operator was charged
with failing to provide a guard for a 7200 volt electrical
3/

The phrase "de novo determination" has an accepted meaning
It means an independent resolution of a controversy
that accords no-deference to any prior resolution-of the same
controversy. United StateE
First City 1'1ational Ba.nk_ of_ • _:_ -·
Houston, '38£ U.S. 361, 368 (1967).
-·

Tn the law.

v.

2063

cable in violation of 30 C.F.R. 75.807.
The standard required
that underground high voltage transmission cables "shall be
placed so as to afford protection against damage, [and] guarded
where men regularly pass under them unless they are 6-1/2 feet
or more above the floor . • • "
The inspector observed .an unguarded cable, 4 inches
in diameter, that was suspended only 5-1/2 feet above
the mine floor in an area where miners and mobile equipment
carrying supplies regularly passed under it.
The inspector
believed this created an electrical shock hazard that was
"reasonably likely 11 to result in a fatality or lost work days.
This, he testified, could occur if the cable were sliced,
smashed or damaged by a piece of mobile equipment or supplies
so as to pierce its insulated cover or if an individual miner
carrying a sharp tool such as a pick or slate bar were to
accidentally thrust the tool through the cable and thus penetrate
one of its energized leads. The inspector speculated that a
sharp tool such as a pick or digging bar could pierce the cable
bypassing the inner protective sheathing and contact an energized
7200 volt lead before the automatic circuit breaker was tripped
or activated.
He then contradicted himself by stating that the
MSHA District in which he works does not understand the requirement for a 11 guard" to mean what the dictionary says it means,
namely, a device to protect the cable from injury by preventing
its penetration by a sharp tool but merely a high visibility
plastic wrapping. Thus, the inspector said that the learning
of his MSHA District is that the intent of the requirement
for a "guard" is only a requirement for a "guard" that serves as
a warning or danger sign such as a sign reading 11 Danger--High
Voltage Cable."
Under this inexplicably narrow construction of the
standard, the inspector terminated the citation after the
operator installed a piece of yellow plastic PVC pipe of
indeterminate mechanical strength cut longitudinally around
the lower half of the cable. The totally unguarded condition,
which apparently existed for some time, was obvious and
should have been reported by the pre-shift examiner.
In rebuttal of the claimed seriousness of the hazard,
the operator's senior maintenance training engineer stated
that in his expert opinion the cable did not need to be
guarded because the inherent protective devices built into
the cable and the high voltage system of which it was a part
made the need for a guard or even a warning device unnecessary.
This expert's opinion was that the likelihood of any contact
resulting in a shock hazard of any consequence was too
remote to be realistic. Indeed, the record considered as a
whole is persuasive of the fact that the millisecond reaction
time of the protective devices of the SHD High Voltage

2064

Shielded Cable in question rendered unlikely the possibility
or probability that any sharp instrument piercing the cable
would become energized. As the operator's expert explained
the ground system in the cable is of lower ohmic value than
that of any piece of metal that might pierce the cable.
Therefore, "the current would flow back to the ground
conductors and make the vacuum breaker operate before it
would travel into a piece of machinery and electrocute a man"
(Tr. 664) •
I conclude, as I did at the hearing, that a high visibility
plastic warning device such as a piece of PVC plastic pipe added
nothing to the electrical and mechanical protection already provided by the automatic deenergizing devices installed in the
shielded cable. The absence of the alleged "guard" did not
therefore significantly and substantially contribute to an
electrical shock hazard.
In a series of recent decisions, the Commission has
made clear that one of the essential elements of an S&S
finding is that the underlying violation be of such a nature
as to create a "discrete," i.e., a recognizable safety
hazard that in the normal course of continued mining operations could contribute to an injury of a reasonably serious
nature. Mathies Coal Company, 6 FMSHRC 1 (1984); Consolidation
Coal Company, 6 FMSHRC 34 (1984); Consolidation Coal Company,
6 FMSHRC 189 (1984); United States Steel Corporation, 6 FMSHRC
1423 (1984); United States Steel Mining Co., Inc., 6 FMSHRC
('July 11, 1984). I find it beyond dispute that the absence
of the alleged "guard" in this instance did not create any
condition that could reasonably be expected to cause death
or serious physical harm before the condition could be
abated.
It did not therefore approach even the threshhold
of "significant and substantial."
But this is not to say that a violation even under the
attenuated standard did not occur. Having disposed of MSHA's
challenge to vacation of its S&S finding, therefore, I turn
to the operator's claim that the penalty assessed for its
knowing failure to provide a warning sign, $200, was excessive.
In my bench decision I found that while the failure to provide
a warning sign did not contribute to the likelihood of a
shock hazard it was nevertheless serious because of the "chance
in a million" that the absence of the "guard" would fail to
warn off a miner who due to some inexplicable combination of
unforeseen circumstances might be killed or injured.
Indeed,
in its post-hearing brief the operator concedes that it is
not arguing that it could not or should not comply with the
attenuated standard:

2065

USSM would not file a petition for modification
because that would be a useless act. Even if the
plastic pipe is not more than a warning sign, the
operator cannot establish that a wire :c-s·ic) without
a warning sign is as safe as one with a sign.
But, the operator argues, since MSHA had interpreted
the standard to require only a warning sign and not a protective guard, it was correct in assuming that MSHA did not
believe noncompliance presented a serious shock hazard.
Thus, it continues, the trial judge erred in finding there
was a culpable disregard for compliance that required more
than a minimal $20 penalty. 4/
It is true, of course, that while the risk of a serious
shock hazard was remote, its occurrence was not beyond the
realm of possibility and its consequences extremely grave-death or a disabling injury.
I also felt, and my de novo
review confirms that the record supports my finding-that
noncompliance stemmed from the operator's opinion that the
requirement, even in its attenuated form, was arbitrary and,
above all, unnecessary.
I am sure this was the view of its
expert witness. But if it was, as counsel concedes, the
remedy was to seek a waiver or variance and not to unilaterally disregard the standard. For these reasons, I concluded
the operator's decision to disregard the standard rather
than seek a variance, waiver or modification demonstrated a
lack of regard for compliance that should not be condoned by
assessment of a token penalty. On reflection, however, r·
believe a lesser penalty than tenatively assessed will suffice.
Accordingly, I reject both parties' exceptions to the
bench decision and assess a penalty of $100 for the violation
found.
B.

Citation 212365

On October 6, 1982, a 104(a), S&S citation issued for
a nonpermissible headlight on a Jeffrey Ramcar. The ramcar
was parked in a crosscut awaiting repair of a broken trunion
approximately 500 feet from the face.
The headlight on the
right, outby side had a damaged packing gland that permitted
the power cable to be moved freely by hand in and out of the

4/ The operator also claimed that in the absence of a valid
S&S finding, my jurisdiction was limited to assessing a penalty
that did not exc.eed $20. For reasons already expressed, I
declined to accept this contention.

2066

headlight indicating the seal around the power leads had been
broken. While the ramcar was out of service due to the broken
trunion, the operator was unaware of the existence of the
permissibility violation.
The undisputed facts showed the power wires entered the
headlights through a copper hipple or ferrule which had been
broken off and a rubber conduit hose that had been stripped
back so as to expose the power wires. As a result, the power
leads were not clamped in place which caused a strain on the
terminal connections inside the headlight. Because of the
damage to the seal around the power leads the flame-path protection against ignitions or explosions within the headlight
was inoperative. The operator challenges only my aff irmance
of the S&S finding.
The operator's expert testified that because the heat
generated by a headlight does not exceed 350 degrees farenheit
and the ignition point of methane is 1100 degrees the violation could not contribute to the cause and effect of a mine fire
or explosion. I considered this to be irrelevant since the
question was not whether the headlight could cause a fire or
explosion but whether a spark or arc from damaged power leads
could cause a fire or explosion. As to the latter there
seemed to be no dispute. The operator also argued that
because a light on the outby side of the ramcar would never
get within 40 feet of the face it would be unlikely to
encounter a 5 to 15% concentration of methane. It was also
argued that since nothing in an unbroken headlight could
cause an arc, something would have to fall on the headlight
to create a spark of sufficient intensity to cause an
ignition. Finally, the operator pointed out that the machine
was not energized, was not operating inby the last open
crosscut, and was out of service due to the broken trunion.
I considered all of these contentions irrelevant. It was
clear that since the ramcar was checked for permissibility
only once a week and the operator was unaware of the permissibility violation it could have been returned to service
without correction of the condition.
The Cumberland Mine is classified as a gassy mine that
releases 3.5 million cubic feet of methane a day. This gas
is emitted not only from the face and gobbed out areas but
also from bleeders in and along the ribs. Consequently, even
outby headlights were subject to operating in a gassy, dusty
atmosphere in the presence of much loose coal and coal dust.
It was not unusual for either inby or outby headlights to be
smashed by loose and falling coal or rock or by striking the
ribs. When and if this occurred it was likely that arcs and

2067

sparks could result in ignitions or explosions in the headlights. While damage to lights can cause arcs and sparks
even when the packing gland has not previously been damaged,
the failure to maintain the gland in a permissible condition
increases the risk or likelihood that a light with a damaged
flame-path will cause an ignition that may not be contained
within the light in the presence of an explosive concentration
of gas or float coal dust.
The inspector considered the violation "very serious."
He believed i t could contribute to an ignition that could in
turn cause a fire or explosion with resulting fatalities.
On
the other hand he considered the negligence slight because
the_ condition, he thought, had occurred since the last weekly
inspection and in the interim was not readily observable to
anyone not making a check for permissibility. But, he noted,
this could also result in the ramcar being put back into
service after the repairs to the trunion were accomplished
without correction of the permissibility violation.
In my bench decision (Tr. 728), I found that if there was
a malfunction or damage to the headlight that caused it to arc
or spark the absence of flame-path protection in this headlight could significantly and substantially contribute to the
cause and effect of a mine safety hazard and assessed a penalty
of $178.
Applying the Commission's analytical construct cited,
supra, including the deference to be given the experienced
opinion of the inspector who found it was "reasonably l.fkely"
that the broken seal on the headlight could provide a link in
the chain of causation from an ignition in the leads to a mine
fire or explosion, I conclude that the probability of such an
event was not so remote as to be unexpected or unforeseeable
in the normal course of mining operations.
I find, therefore,
that on the basis of the record considered as a whole the
evidence shows the underlying permissibility violation could
significantly and substantially add, both qualitatively and
quantitively, to a "discrete" safety hazard, namely a mine fire
or explosion, that could result in death or serious physical
injury.
For these reasons, the operator's exceptions to the bench
decision are denied and the penalty assessment of $178 affirmed.
II.

Docket No. PENN 83-75 - Cumberland Mine
A.

Citation 2012377

This citation charged the operator with failure
to provide guards for the tail and drive rollers on the Mains

2068

South Conveyor Belt. The absence of the guards was not
challenged. The operator contends only that the violation
was not significant and substantial.
The undisputed facts showed that at 12 different locations and at various heights ranging from 2 inches above the
mine floor to about 5 feet drive rollers up to 2 feet in
diameter were unguarded for 'distances of up to 20 feet along
the wide and tight side of the beltline. This exposed miners
using the parallel 5 foot wide travelway on the wide side to
accidental contact with the rollers as the miners performed
rock dusting or f ireboss duties or carried supplies from one
point to another using the travelway. On the tight side
exposure resulted when rock dust was spread while the belt was
in motion.
The absence of the expanded metal guards presented multiple
pinchpoint hazards which could result in hands, arm or legs
getting accidentally caught between the moving rollers and the
beltline. The unguarded condition could result in severed or
dismembered limbs, traumatic amputations, or a fatality.
The guards removed from the supporting vertical posts
were found in a crosscut about 50 feet away. The fact that
they were covered with mud, rock dust and coal dust indicated
they had been there for some time. Even so; there were not
enough expanded metal guards to provide protection for the
entire length of the unguarded rollers on the wide and tight
sides.
There was conflicting evidence over whether the walkway
was damp and slippery or dry. Since the tail roller was under
the walkway a miner would have to fall or slip from the walkway
to become entangled. While these circumstances may or may
not have attenuated the risk with respect to this roller, they
obviously did not eliminate it. The evidence also showed the
support posts for the missing guards were 4 to 5 feet apart and
18 inches from the edge of the walkway and drive rollers. These
dimensions did not provide a protection by location.
The operator claimed the absence of the guards could not
significantly and substantially contribute to the pinchpoint
hazard because the evidence does not support a finding that an
accident involving the pinchpoints "would be reasonably likely
to occur" before the condition was voluntarily abated. The
operator claims that to assume the condition would "never be
corrected significantly alters the test to be applied." The
Commission's test, namely, "reasonable likelihood that the
hazard contributed will result in a serious injury" requires,
the operator contends, a time continuum.
I agree.

2069

The appropriate time continuum in my judgment is whether
there is a reasonable likelihood that normal mining operations
can be expected to continue before the hazardous condition is
abated. Eastern Associated Coal Corp., 491. F.2d 277 {4th Cir.
1974); U.S. Steel Mining Co., Inc., 6 FMSHRC
(July 11,
1984). Here the evidence amply supports the conclusion that
the condition had existed for some time prior to issuance of
the citation and that absent issuance of the citation the
pinchpoint hazard would have continued to exist for a time
sufficient for an accident to occur before the condition would
have been "voluntarily" abated.
For these reasons, the operator's exceptions to the bench
decision are denied and the penalty assessed, $120, is affirmed.
B.

Citations 2012379, 2012380, 2011625.

These three citations involved the absence of
water sprays at dumping points. Citation 2012379 was occasioned
by the inspector's reading of the operator's preshift examination reports. They showed that on three consecutive working
days, Friday, November 5, Monday, November 8, and Tuesday,
November 9, 1982, the preshift examiner (fireboss) had reported
a hazardous condition on the Main Face South Conveyor Belt.
This consisted of an excessive accumulation of float coal dust
at numerous locations around the No. 2 conveyor drive for a
distance of approximately 100 feet. The dust had collected on
the belt structure, the electrical drive motors and the power
cables. The electrical power sources while protected with
short circuit devices were not permissible.
·
·- When the inspector arrived on the scene, he observed that
the belt was energized and running and that the atmosphere was
visibly dusty with large amounts of float coal dust deposited
on the ribs and roof. As a result of his observations, the
inspector issued a 75.316, 104(a), S&S, citation. 5/
It alleged a violation of the operator's Methane and Dust
Control Plan in that water sprays were not provided at the
belt transfer point. The operator admitted the violation but
contested the S&S finding.
Water sprays are required at belt transfer points to
precipitate float coal dust from the atmosphere thereby
reducing the concentration of respirable and explosive coal
dust. In this case, the presence of a visible concentration
of dry float coal dust created both a health (respirable dust)
5/ He also issued a 104 (a), S&S 75. 400 c·itation which was not
contested.

2070

and safety hazard. Miners working on the beltline and elsewhere were subjected to the hazard of a fire or explosion if
an ignition source were to ignite the float coal dust or a
methane bleeder. The inspector testified these hazardous
conditions existed in the presence of nonpermissible electric
motors and where hot rollers or friction from a misaligned
belt could occur at any time. As the preshift reports established, the condition was one about which the operator knew or
should have known.
The operator's assistant mine foreman claimed the accumulation of float coal dust could have occurred even if the
sprays had been installed and made operative because much
float coal dust comes from the bottom belts for which no
sprays are required or from other sources such as the ventilation system. From this counsel for the operator argued that
it could not be assumed that the absence of the water sprays
at the transfer point significantly and substantially contributed to the hazardous accumulation of float coal dust.
On rebuttal, the inspector testified that the accumulation of float coal dust observed could not be attributed
solely to dust from the bottom belt. He admitted the sprays
did not completely suppress or control the suspended float
coal dust but was certain that the absence of the required
sprays permitted much of the excessive accumulation that he
observed. He was also of the opinion that if an electrical
malfunction occurred it was "highly probable" that an ignition
would cause the float coal dust to ignite.
Citation 2012380 was issued for the absence of water
sprays at a belt transfer point inby the point cited in
Citation 2012379, supra. Twenty-four hours after this citation issued, the inspector issued a 75.400, 104(a), S&S
citation on the same area, the 128 West Conveyor Drive.
Counsel for the operator argued that because sprays were
installed by the end of the shift on November 9, 1982, and the
75.400 citation did not issue until the next day is proof that
the sprays were ineffective and inconsequential in preventing
the accumulation of float coal dust.
The accumulation cited, and not contested, was that float
coal dust on previously rock dusted surfaces was permitted to
accumulate on the mine floor from rib to rib in the belt entry
and crosscuts for a distance of 200 feet.
In addition, loose
dry coal and coal dust had been permitted to accumulate under
the drive and rollers on the drive motor in amounts up to
19 inches deep in an area 3 by 4 feet.
The inspector testified he did not issue the 75.400
citation on November 9 because he did not see the accumulation

207.1

he cited on the 10th. He conceded it was possible that he did
not see it because it was not there on the 9th.
I find that
in view of the large accumulation found under the drive and
rollers it was more probable than not that the accumulation
existed at the time the 75.316 citation issued on November 9
but that the inspector overlooked it.
The parties stipulated that the same two witnesses who
testified in support of and in oppositi9n to Citation 2012379
would give similar testimony with respect to the gravity,
negligence, and significant and substantial nature of the
violation.
Citation 2011625 was issued on November 12, 1982, for
failure to provide water sprays on the feeder located at the
52 Main East Section in violation of the same Methane and
Dust Control Plan that applied to Citations 2012379 and
2012380. The belt, which was energized but not running when
observed, had three water sprays mounted on a bar approximately
300 to 400 feet outby the face at the point where the shuttle
cars dumped on the feeder to the main conveyor belt. The
sprays were inoperative because no hose was attached to them
to supply water.
Coincident with his observation of the inoperative water
sprays the inspector saw a shuttle car dump a load of coal on
the feeder. When this failed to activate the water sprays
the inspector noted the absence of the water hose. Looking
further, the inspector observed and wrote a 104(a), S&S
citation for a 75.400 violation that disclosed an accumulation of loose, dry, coal dust to a depth of 21 inches in an
area around the sequence roller that measured 6 feet wide
by 6 feet long. He also noted an accumulation under the tail
roller that was 4 feet by 4 feet that was wet. The sequence
roller, however, was turning in loose, dr~ coal and coal dust.
This citation was not contested.
!
As in the case of the other two citations, the inspector
testified that it was reasonably forseeable that the absence
of the water sprays could contribute to the hazard of a fire
or explosion of to a respirable dust health hazard.
An aggravating circumstance alluded to was the fact
that the evidence showed the violation occurred on an intake
air split inby the return for the belt air which meant that
the respirable dust generated by the absence of the sprays
was being carried over the eight miners working at the face.

2072

Since the inspector observed only one load of coal being
dumped on the feeder and the belt was not running the operator
contended coal was not being produced and therefore no immediate
hazard either serious or nonserious was presented. The operator
also showed that, as the inspector admitted, the accumulation
of coal under the tail roller was wet but offered no evidence
to rebutt the inspector's showing that under the sequence
roller the loose coal and coal dust was dry.
In summing up counsel for the operator argued that because
each of the violations occurred in an area tha·t was well ventilated and rock dusted the absence of the water sprays was
insignificant and not likely to result in or contribute to a
hazard that would result in a reasonably serious injury. The
operator asserts that any contribution that the absent sprays
might make to a buildup in the dust concentration in each of
these areas was so minimal as to make the violations trivial
and certainly not of such a nature as to increase the risk of
any recognizable health or safety hazard.
I do not agree. I admit that quantifying the degree of
contribution each of these violations made either singly or
in the aggregate to a respirable dust, fire or explosion
hazard is impossible. Nevertheless the existence of the spray
requirement in the operator's own dust control plan is a plain
recognition of the fact that water sprays play a significant
role in the suppression of respirable and float coal dust.
Further, their absence particularly under the circumstances
that appear here, namely, the presence of excessive accumulations of loose, dry coal and float coal dust in working areas
rife with potential sources of ignition is persuasive of the
fact that the underlying violations were of such a nature as
to constitute a significant and substantial link in a chain
of causation that could result in death or serious physical
injury if normal mining operations continued with these
conditions unabated.
Accordingly, I find the absence of the sprays could and
did contribute to a significant and substantial increase in
the amount of loose, dry float coal dust and respirable dust
in suspension and to an increase in the accumulation of loose,
dry coal dust on previously rock dust surfaces; that such
accumulations did, in fact, occur; and that the presence of
such dust could contribute to the cause and effect of at least
three discrete hazards, namely a health (respirable dust)
hazard and a fire and/or explosion hazard. Applying the
Commission's analytical construct cited supra, and giving
deference to the testimony of the inspector and weight to the
uncontested 75.400 violations, I conclude the conditions
cited were significant and substantial violations.

2073

I

Upon review of the record considered as a whole, therefore, I am constrained to affirm the bench decisions and the
amounts of the penalties assessed for each of the first two
violations, $136 and $98 respectively. As to Citation 2011625,
I.find the aggravating circumstance warrants an increase in
the amount assessed from $100 to $200.
III.

Docket No. PENN 83-76 - Cumberland Mine.
A. Citation 2013051

On November 15, 1982, a 104(a), S&S citation
issued for a violation on an energized torkar shuttle car
parked without wheel chocks on a slight down grade in an
underground section of the Cumberland Mine. At the time the
citation issued miners were observed walking or standing in
front of the car on the downhill side. The citation charged
the condition was a violation of a notice to provide safeguard issued' September 8, 1981. The existence of the condition
was undisputed. The operator contested only the S&S finding.
The testimony of the inspector and the walkaround
showed that even where the mechanical parking brak.e on a
shuttle car is set the wear and tear on the teeth of the
rachet mechanism may permit the 20 ton vehicle to drift down
a hill with sufficient force to crush a miner against a rib.
The operator's senior maintenance engineer testified
that, while he had no personal knowledge of the condition-of
the car in question, he believed all the torkars purchased
by the operator had a dual braking system. The first system
was that described by the inspector and walkaround and is
similar to the parking brake mechanism found on an automobile.
The brake is engaged by pressing the brake pedal down and
then pulling back on a lever that locks the foot pedal down
and the car in place.
The second braking system on the torkar is called the
"failsafe" brake. This braking system is activated when the
car is unattended or shut off by hitting the panic bar. The
walkaround testified, and the operator's expert did not deny,
that the "failsafe" brake did not automatically prevent a
car from drifting.
The maintenance engineer said the "failsafe" brake is a
hydraulically activated spring brake that works as follows:
"If the torkar is in movement, and you activate the panic bar,
the panic bar deenergized the pump motor, and, at the same
time, the failsafe brake will lock to the rotor on the braking
mechanism" and bring the vehicle to a stop (Tr. 845). He
further testified that the failsafe brake requires considerable maintenance as its use in stopping a 20 ton vehicle in

10 feet tears up the rotor. Instead of taking such a vehicle
out of service, chocks will be used until the "failsafe"
brake is repaired. The maintenance engineer did not know of
his own knowledge whether the "failsafe" brake on the torkar in
question was operative on the day the citation issued. The walkaround testified that on the basis of his personal experience
with the vehicle the "failsafe" brake was not operative.
The operator's expert testified that "failsafe" is a
misnomer because no brake is "failsafe" if it is not properly
maintained. These particular "failsafe" brakes need a lot of
maintenance and repair because, he said, the "momentum of a
twenty ton piece of equipment traveling ten miles an hour
coming to a screeching halt within, maybe, ten feet • • •
tears up the rotor that the brakes grab on to" (Tr. 848).
After this occurs, the "failsafe" brake is no longer operative.
Counsel for the operator contended that MSHA '·had the
burden of showing the claimed "failsafe" braking system was
not on the vehicle in question, was not operative, and would
not have prevented the car from drifting. A miner who actually
operated the torkar in question, testified that he was never
told the vehicle had a failsafe brake or how to operate it
(Tr. 855-856). He further testified that the torkar drifted
after shutting the power off and before setting the mechanical
brake which led him to believe it had no failsafe brake or at
least not one that engaged automatically. I conclude, therefore, that MSHA carried its burden of showing tha-t: the violation charged did, in fact, occur and that it was reasonably
forseeable that the underlying violation, i.e., the absence of
the chocks would significantly and substantially increase the
risk of death or serious physical harm. ·
Once MSHA established the fact of the underlying violation,
the operator had the burden of going forward with evidence to
show that the violation was trivial because the shuttle car
had a fully operative "failsafe" backup braking system that
would prevent the car from drifting after the mechanical
brake was set. Not only did the operator fail to carry its
burden but, as we have seen, MSHA affirmatively proved that
in all probability the vehicle in question did not have an
operative "failsafe" braking system.
Applying the Commission's approved analysis we have,
therefore, (1) an underlying violation; (2) a discrete safety
hazard--that is, a measure of danger to safety--contributed

·2075

to by the violation; 6/ (3) a reasonable likelihood that the
hazard contributed will result in injury; 7/ and (4) a
reasonable likelihood that the injury in question will be of
a reasonably serious nature. 8/
For these reasons, the exceptions to the bench decisions
are denied and the $200 penalty affirmed.
IV.

Docket No. PENN 83-77 - Dilworth Mine
A.

Citation 2011736

The roof control plan for the Dilworth Mine in
effect at the time this citation issued required that when the
sum of the diagonal measurements of an intersection exceeded
60 feet, "pos~or jacks shall be installed to reduce the
longest span to 28' or less." On November 8, 1982, a 104{a),
S&S citation issued when measurements taken at the intersection of the number 14 {intake escapeway) entry and the
number 5 crosscut showed that each of the diagonals measured
32 feet and no posts or jacks had been installed. The
existence of the condition cited was admitted. The challenge
was to the S&S finding.
6/ Quantifying the increase in risk is, as I have noted,
Incapable of proof by mathematical certainty, since no one can
say whether the absence of the chocks would necessarily result
in a disabling injury or fatality. As Prosser states:
Proof of what we call the relation of cause and effect,
that of necessary antecedent and inevitable consequence,
can be nothing more than "the projection of our habit of
expecting certain consequence to follow certain antecedents merely because we had observed these consequences on previous occasions." {Citations omitted).
"If as a matter of ordinary experience a particular act
or omission might be expected, under the circumstances,
to produce a particular result, and that result in fact
has followed, the conclusion may be permissible that
the causal relation exists." Prosser on Torts, p. 243
{4th ed. 1971).
7/ It fs self- evident that no man is a match for a 20 ton
shuttle car.
8/ Experience as well as common sense teaches that the likelihood of a serious or disabling injury, dismemberment or death
as the result of a collision between a shuttle car and a
miner was reasonable.

207-6

At the time the citation issued, the operator was engaged
in retreat mining. Three intersections inby the crosscut in
question, at the number 8 crosscut between the 15th and 16th
entries and the 26th and 32d pillars approximately 2 feet of
the roof shale had oxidized and peeled or flaked away across
the entire 16 foot entry leaving the roof bolts exposed.
The inspector believed this condition, which was approximately 400 feet from the overwide intersection, had resulted
from override pressure on the roof due to the failure of the
operator to effect total caving of the roof in the gobbed or
pillared out areas. This explanation for the S&S finding is
lacking in evidentiary support and at odds with the inspector's
statement that he found no basis for concluding the operator
was, or had, engaged in improper pillar recovery methods. The
operator's general assistant mine foreman, who accompanied the
inspector and personally abated the violative condition by
setting three posts in the intersection, testified convincingly
that the roof condition in the number 8 crosscut between the
26th and 32d pillars was not the result of a roof fall.
Both witnesses agreed that the roof bolts in the area
in question were still firmly anchored in the sandstone rock
and that the black shale had fallen or peeled away from
between the bolts to a depth of about two feet.
The inspector
speculated that if all this had fallen at once he would
consider it a dangerous unintentional roof fall that might
have crushed a miner. The mine foreman, who testified from
personal observation of the condition, said the condition
did not result from a roof fall but one that occurred over
time "when the air hits it and so forth, it just peels off
around the pins. The pins are still anchored, hanging about
a foot and a half. They are anchored, but nothing massive
falling down, just the black shale falling down" (Tr. 360-361).
My de novo review of the record leads me to conclude the
inspector-erred in finding the condition in the number 8 crosscut was due to override pressure. His own diagram of the area
characterized the condition not as a roof fall but as "Broken
roof here, will need [to be] rebolted" (GX-6).
Indeed, the
inspector's initial testimony was that "The roof had pulled
away from the bolts. The bolts were hanging down. Everything
was broken" (Tr. 329). The inspector also said that because
he saw what he thought was a roof fall inby the area in question,
"You might as well say there was a roof fall there [in the
number 8 crosscut] too, but it wasn't above the anchorage line,
maybe a foot or two high, stuff had spalled out and came down
which means it had to be rebolted before" further retreat
mining could be accomplished (Tr. 329).

2077

The inspector then went on to claim he decided on the
S&S finding because the operator was not getting "clean
falls" of the roof during his pillar recovery. This turned
out to be incorrect because on close examination the inspector
admitted "No, there was no improper practice on mining the
pillar line" (Tr. 334-335) •
On the basis of the record considered as whole, I conclude
there was no factual basis or credible expert opinion to support
a finding that the broken roof condition observed in the number 8
crosscut contributed to the risk of a roof fall in the number 5
crosscut. Both witnesses agreed the roof in the number 5 intersection was good with no signs of stress. The mine foreman
readily admitted that someone had improperl.y removed the three
support posts that had been set in the intersection and that
this was a serious violation of safe mining practice. The
inspector found the negligence involved was "moderate."
For these reasons, I hereby vacate· the finding in my bench
decision and find the condition in the number 5 crosscut, while
serious, did not significantly and substantially contribute to
a different or discrete hazard that could result in death or
serious physical harm. I conclude; (1) the violation was
serious; (2) affirm my ruling rejecting the operator's offer
to prove that the sum of the diagonals requirement was obsolete
and contributed nothing to safety; and (3) reduce the penalty
from the $500 initially assessed to $150.
V.

Docket No. PENN 83-94 - .Maple Creek No. 1 Mine A.

Citation 2014066

On November 16, 1982, a 104(a), S&S citation
issued in the 8 Flat, 56 Room of the Maple Creek No. 1 Mine
when the inspector found the ground wire from the frame of a
Ricks Water Gathering Pump twisted together with the return
ground of the power conductor for the pump. Power was being
drawn by a fused nip cable from the 550 volt trolley wire.
The two grounds were in turn grounded to the mine track by a
ground clamp attached to the rail as shown in GX-12.
The violation, which was admitted, consisted in the fact
that the two ground wires were not attached to the mine track
or other grounded conductor by separate clamps. 30 C.F.R.
75.701-5. The operator challenged the S&S finding contending
the hazard contributed to -- shock or electrocution -- was too
remote and speculative t.o create a reasonable likelihood of
the event occuring.
The undisputed facts showed that if the ground clamp were
dislodged from the mine track through vibration, derailment or

2078

other accident and the twisted ground wires thereby lost their
ground to the track, they would continue to conduct the 550
volt current from the overhead trolley wire through the ground
frame wire to the frame of the water pump. With the circuit
thus completed the pump would continue to operate normally,
but with the frame energized with a voltage sufficient to
cause a lethal electrical shock.
A miner required to do maintenance on the pump or a miner
travelling the track entry on the tight side who had occasion
to contact the pump frame while standing in the water that
surrounded the pump could ground himself and receive the full
force of the 550 volts of power coming from the trolley wire.
The evidence showed the water pump was checked on each
shift to see if it was functioning properly and weekly for
electrical compliance. The record of the weekly check was
too vague to permit the inspector to determine whether this
particular pump had been inspected that week or, if it was,
whether the inspection included the ground clamp. Both MSHA
and the operator had recognized that "robbing" ground clamps
was a problem. A solution was found with respect to permanent
pumps by welding a roof bolt to the track to serve as a
permanent ground clamp.
State law required such clamps to be at least six inches
apart. Federal law merely required two clamps. But since
both laws had to be read together the requirement was for two
clamps at least six inches apart. The operator's maintenance
foreman said no permanent solution was possible for pumps that
were installed temporarily because they had to be detachable
to be moved.
A fair appraisal of the testimony of the operator's
maintenance foreman shows management was aware that miners
"infrequently" engaged in the practice of "robbing" ground
clamps and using one clamp to ground electrical equipment
where the law required two.
In fact, the parties' stipulated
the operator had a history of nine prior violations of this
standard in the 24 months preceding issuance of this citation.
While the foreman was reluctant to admit personal knowledge
of the practice, he did state that "once in a while," "not
frequently," but "once in a while," he had seen wires clamped
in a single ground clamp. He didn't take this lightly but
said it was difficult to pin point responsibility.
Even if the practice was·"infrequent," as counsel for the
operator would have it, it was frequent enough, as witness the
nine recent prior violations, to require management's attention.

2079

The foreman's ready admission of the same problem on the
permanent pumps when contrasted with his inability to recall
how frequent it was on the temporary pumps cautions against
ready ~cceptance of the view that the problem was hardly
worthy of management's attention.
I conclude that even if the practice was "infrequent"
management's awareness of the problem and its failure to take
effective steps to insure compliance made out a case of
aggravated negligence on its part. While control of the
problem may have presented difficulties with respect to the
temporary pumps, it was no excuse for tolerating the condition
or turning a purblind eye to it. The circumstances of this
violation are precisely those in which a civil penalty can be
most effective in encouraging voluntary compliance.
The inspector initially found the operator's negligence
was "moderate" because he felt it was a problem that was
difficult to control. But he did recognize, as did the other
witnesses, that the substitution of one clamp for two took a
knowing and deliberate act. This in turn reflects a deficiency
in the operator's safety training and enforcement program.
The evidence also showed that .the violation could result
in anything from a lost workday or restricted duty accident to a
fatality due to electrocution. The maintenance foreman felt
a fatality or other injury was unlikely because his experience
was that derailment would cut both wires and thus break the
circuit. He was not asked to address the problem of a d~slodg
ment due to vibration.
The operator's ventilation foreman, who
accompanied the inspector, thought the wires were not twisted
together and that if the clamp ·was dislodged the wires would
physically separate and thus break the circuit. The inspector
and the walkaround were sure the wires were twisted together.
The citation merely recites that the two ground wires
"was (sic) attached to the same clamp." The operator's
foreman candidly admitted that whether the wires were twisted
together was "immaterial" because the wires were "squeezed"
together in the clamp and unless the manner in which the
clamp broke released the "squeeze" the circuit would not
break. On rebuttal, the inspector demonstrated (see GX-12)
how one wire was twisted around the other before the washers
squeezed them together.
I conclude that whether the wires
were "twisted" or "squeezed" the hazard created was the
same.
With respect to the S&S question, I find a derailment or
vibration that could result in dislodging the ground clamp
from the mine track could result in energizing the pump frame
and that this was a forseeable intervening cause that could

2080

contribute to a discrete hazard, namely that of a shock or
electrocution.
I further find that the likelihood of dislodgment was probable and certainly not so remote as to be
inconsequential if normal mining operations continued.
Remoteness in time or space are undoubtedly important in
determining whether an underlying violation could significantly
and substantially contribute to a discrete and forseeable
hazard.
But where, as here, the chain of causation (vibration
or derailment) is direct and predictable and a hidden hazard
could exist for an indeterminate time before abatement or injury
there is no merit in the contention that uncertainty as to the
exact time of occurrence bars a finding of significant and
substantial contribution.
The same reasoning applies to the claim that a dislodgment
by derailment would almost surely sever the wires and break the
lethal connection.
In the inspector's contrary opinion, to
which I give deference, it was "very likely" that the wires
would remain twisted or squeezed and the circuit complete.
Viewed from the standpoint most favorable to safety, I find
that it was at least as probable as not that the circuit would
not be broken and therefore the hazard was real.
Because of
its hidden nature it was certainly a hazard likely to occur
before the operator would discover and voluntarily abate it.
This condition like the well known booby trap is most likely
to lurk until some unwary individual trips it.
As Prosser notes:
"The defendant who set a bomb which
explodes ten years later, or mails a box of poisoned chocolates
from California to Delaware, has caused the result, and should
obviously bear the consequences." Prosser on Torts, supra,
p. 253. Here, of course, we are trying to forecast the likelihood of an adverse consequence and are deniec the insight that
comes from hindsight after an actual injury has occurred.
Nevertheless common sense and unhappy experience show that
either view reinforces the picture of a stage set for disaster
for some unwary individual.
In my judgment, when an underlying violation sets the stage
and provides a contributing cause of a major hazard its remoteness in time or space is irrelevant and immaterial. Compare,
Consolidation Coal Company, supra, 6 FMSHRC 194 (Causative
chain of a danger in a mine may have many links). The purpose
of the law is to nip nascent hazards in the bud and not to
find excuses for condoning them by trivializing the penalty.
A significant and substantial cause need not be the only
cause, nor the last nor nearest cause.
It is sufficient if it

2081

can occur with some other cause acting at the same time, which
in combination with it results in a major mine safety hazard.
See, Hylin v. U.S.A., 3 MSHC 1020, 1028 (7th Cir. 1983),
(MSHA's negligence contributed significantly and substantially
to operator's negligence that resulted in a mine fatality due
to electrocution) •
Because of the gravity and negligence involved, I found,
that the amount of the penalty proposed, $119, was insufficient
to insure management's prompt attention to a condition and
practice that was resulting in a serious, hidden, potentially
lethal mine hazard. To deter a violation that can occur
only through a deliberate act of noncompliance with both
federal and state law, I assessed a penalty of $750. Any
lesser penalty, I believe, would result in paralyzing with
one hand what the Act seeks to promote with the other.
For these reasons, the exceptions to the bench decision
are denied and the decision and the penalty assessed therein,
$750, are affirmed.
ORDER
Accordingly, it is ORDERED that the operator pay the
penalties assessed, allocated as indicated, in the total amount
of $3,921 on or before Friday, SeP, ember 28, 1984, and that
subject to payment the captioned
tters are DISMISSED.

Attachment
Distribution:
Howard K. Agran, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market St., Philadelphia, PA 19104
(Certified Mail)
Louise Q. Symons, U.S. Steel Mining Co., Inc., 600 Grant St.,
Rm. 1580, Pittsburgh, PA 15230 (Certified Mail)
Mr. Arthur E. Guty, Sr., Chairman Safety and Health Local
Union 2300, 341 Derrick Ave., Uniontown, PA 15401
(Certified
Mail)
Michael Holland, Esq., UMWA, 900 15th St., NW, Washington, DC
20005
(Certified Mail)
/ejp

20,82

' ...

·...

.

....... .

.·lbe : {ll'oinier..-1.ountal
· BARRY BINGHAM JR.·· . : ,., : .:. ROBERT T. BARNARD
· ~ditor an~ hblishei;_,. -.· , . . .\.~~n~?~ Page Edita,. . .
.

.: ..

.·. ·:. · Als~i~ Editori ·:
BERT EMKE · JAMES: EDDLEMAN
THOMAS F. MAPP.· .•.
. ..

"

f

• •~

~..l

:· , . .

HUGH HAYNIE, Cartoonist ..
WED_NESDAY, JULY 11, 1984. FOUNDED 1826•.

'·....

Mine· safety-. agency hespa!terS its owii image
THE '.BEST EFFORTS· of! Coufie,._. ups about "cooperation" with safety District are classified as "significani
law violators than about firmness are and substantial," compared to 13 peragainst the U.S. Mine Safety and . likely to feel that 5afety isn't the first · cent in the BarbOurville district. It's
Health Administration turned up no order of business. When· their citations · doubtful that anyone believes that this
evidence to support claims that system- frequently are thrown out. or. watered ... and other such disparities represent the
atic corruption exists in .the agency. down - often without consultation real situation. .
But that's not overly consoling. The with those who issued them - suspi- .: Coal operators, on the whole, doubtverifiable facts show a situation that is cions seem confirmed. · ·
· ·,
less are· better satisfied with MSHA's
only marginally ~tter.
. ..•
..
And when enforcement practices current emphasis on leniency and co, The reports of writers Mike Brown vary widely from one district tO an- operation. In the fiscal year ending
'and · ~ G~ Durilop .. showed ari atmos-· other ~ and even from· office to office September 30, 1981, the industry was
phere iii· which charges and rumors of in the same district - either the effi- fined $16 million for health and safety
wrongdoing were bound . to· arise;· .ciency or the integrity of the whole violations. Under new procedures
whether true or ·not. Mine inspectors process is suspect. More th~n 53 per- adopted for the following year, penalwho hear more talk from the. higher- ·cent of citations in MSHA's Pittsburgh ties totaled only $6.3 million. ·
· :· "
Maybe the new-found spirit of cooperation has reduced the need for fines,
though many observers will be skepti.:
. cal on that point: But the erratic way·
..the. penalties -are levied ~ and the
attitude of MSHA toward its own inspectors - leave. little doubt that enforcement of mine ht:alth and safety
rules still needs much improvement.
Journal reporters to investigate charges

2083

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

(7 03) 7 56-6210

RICHARD E. BJES,
Complainant

,AUG 29 1984
DISCRIMINATION PROCEEDING

.

v.

.

Docket No. PENN 82-26-D
Laurel Mine

CONSOLIDATION COAL COMPANY,
Respondent
ORDER
On June 15, 1984, the Commission issued its decision in
this matter affirming my decision that the complainant
Richard E. Bjes was discriminated against by the respondent
in violation of section 105(c) of the Federal Mine Safety
and Health Act of 1977. The case was remanded to me for
the purpose of determining the appropriate relief due
Mr. Bjes.
In response to my orders of July 27 and August 13, 1984,
the parties have advised me that they have reached an agreement
as to the following compensation and awards due to Mr. Bjes:
Back Pay •••••••••••• $3451.10
Interest .••••••••••• 1497.88
Expenses •••••••••••• 172.93
$5121.91
Attorney Fees •••.••• $1375.00
In view of the foregoing, the respondent IS ORDERED
to immediately make payment to Mr. Bjes in the amounts shown
above, and to immediately disburse and pay to the attorneys
of record the agreed upon amounts as shown. Upon full payment
by the respondent in the amounts shown, these proceedings
are dismissed.

;~4~...,.,,,..Georg~/A. Koutras
Administrative Law Judge

2084

Distribution:
Karl Skrypak, Esq., Consolidation Coal Company, Consol Plaza,
Pittsburgh, PA 15241 (Certified Mail)
Carson Bruening, UMWA District II, 521 w. Homer St., Ebensburg,
PA 15931 (Certified Mail)
Mary Lu Jordan, Esq., UMWA, 900 15th St., NW, Washington, DC
20005 (Certified Mail)

/slk

'ifU.S. GOVERNME:N 1 PRINTING OFFICE:

1 9 8 It It 2 1

56 9

2085

1 3 6 O6