CCASE:

SOL (MSHA) V. CLINCHFIELD COAL

DDATE:

19790312

TTEXT:
~1

 Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)

 Office of Administrative Law Judges

SECRETARY OF LABOR, Civil Penalty Proceeding

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA), Docket No. NORT 78-417-P

 PETITIONER A/O No. 44-00280-02025

 v. Camp Branch No. 1 Mine

CLINCHFIELD COAL COMPANY,

 RESPONDENT

 DECISION

Appearances: Inga Watkins, Esq., Trial Attorney, Office of the

 Solicitor, Department of Labor, for Petitioner;

 Gary W. Callahan, Esq., Attorney for Respondent.

Before: Chief Administrative Law Judge Broderick

Statement of the Case

 This proceeding was commenced on September 25, 1978, by a

petition for the assessment of a civil penalty filed under

section 110(a) of the Federal Mine Safety and Health Act of 1977,

30 U.S.C. 820(a), seeking a penalty for an alleged violation of

the provisions of 30 CFR 77.207.

 Following discussions between counsel pursuant to a

prehearing order, the case was called for hearing on the merits

on January 25, 1979, in Abingdon, Virginia. Clarence A. Goode, a

Federal mine inspector, testified on behalf of Petitioner; George

W. Strong, superintendent of the subject mine, testified on

behalf of Respondent. Both parties have filed posthearing briefs.

All proposed findings and conclusions contained in the briefs not

adopted herein are rejected.

Regulation

 30 CFR 77.207 provides: "Illumination sufficient to provide

safe working conditions shall be provided in and on all surface

structures, paths, walkways, stairways, switch panels, loading

and dumping sites and working areas."
~2

Issues

 1. Whether there was any illumination in the areas covered

by the citation involved herein in addition to the cap lamps of

the miners and inspector.

 2. Whether the illumination in the areas covered by the

citation was sufficient to provide safe working conditions.

 3. If a violation has been established, what is the

appropriate penalty?

Findings of Fact

 1. At all times relevant to this proceeding, Respondent,

Clinchfield Coal Company, was the operator of a coal mine in

Dickenson County, Virginia, known as the Camp Branch No. 1 Mine.

 2. Respondent is a large operator and any penalty assessed

herein will not affect its ability to continue in business.

 3. On September 19, 1977, Federal Mine Inspector Goode made

an inspection of the subject mine, including both underground and

surface areas.

 4. Inspector Goode's inspection of the surface areas was

conducted between 9:30 and 11 p.m. on September 19. The night was

cloudy.

 5. Inspector Goode had previously inspected the mine on

September 16, 1977, during daylight hours and did not observe

light structures in the area of the head house and stacker belt.

He returned on September 19 at night to determine the

illumination in the area.

 6. On September 19, 1977, at approximately 11 p.m.,

Inspector Goode issued Notice of Violation No. 4 CAG, charging a

violation of 30 CFR 77.207.

 7. At the time the citation referred to in Finding No. 6 was

issued, there were no functioning outside lights at or near the

head house or the conveyors leading from the head house to the

stacker transfer point.

Discussion

 There is sharp and total disagreement between Mr. Goode and

Mr. Strong as to the existence of functioning lights at the time

and place referred to in the notice. I am accepting the testimony

of Mr. Goode, because he was present at the time in question, and
~3

Mr. Strong was not. Mr. Sam Murphy, mine foreman, who accompanied

Mr. Goode on his inspection, was not called as a witness by

Respondent. Mr. Goode's testimony is cooroborated by the notes

which he made at the time of his inspection. Mr. Goode is an

experienced mine inspector. There is no adequate reason shown in

this record to conclude that he was totally mistaken or was

fabricating as to the condition he stated that he observed.

 8. Because of the absence of functioning lights in the areas

described in Finding No. 7, illumination sufficient to provide

safe working conditions was not provided in those areas.

Discussion

 The only illumination in the areas in question was that

provided by the cap lamps of the miners and the inspector. The

area in question had supplies, railroad tracks, rocks and coal

spillage which constituted stumbling hazards. There were moving

conveyors and moving parts at the transfer point and the stacker

belt which could be hazardous to those working in and around

them, if insufficiently illuminated. The cap lamps did not

provide sufficient illumination to obviate these hazards since

the cap lamp provides only a directed beam of light and does not

provide diffuse illumination to allow a person to see to the

periphery of his vision. I reject the testimony of Mr. Strong

that "the cap light provides adequate illumination for a man

working along one of these conveyors" (Tr. 81).

 9. At the time the notice of violation was issued, there was

one miner working in the area in question. However, the area was

traveled by other miners to pick up supplies and to do

maintenance and cleanup work along the belt.

 10. The condition described in Finding No. 8 was moderately

serious.

 11. Respondent's history of previous violations does not

include any violations of 30 CFR 77.207. Any penalty assessed

herein will not be increased because of a history of previous

violations.

 12. The parties stipulated that Respondent demonstrated good

faith in attempting to effect rapid compliance after the notice

was issued.

 13. The absence of illumination in the areas in question was

discussed with Respondent's officials prior to the date the

notice was issued. Respondent knew or should have known of the

existence of the condition described in Finding No. 8. Respondent

was negligent.
~4

Conclusions of Law

 1. Respondent was subject to the provisions of the Coal Mine

Health and Safety Act of 1969, 30 U.S.C. 801 et seq., as of

September 19, 1977.

 2. The undersigned Administrative Law Judge has jurisdiction

over the parties and the subject matter of this proceeding.

 3. The condition described in Finding No. 8 constituted a

violation of the mandatory safety standard contained in 30 CFR

77.207.

 4. A violation of the safety standard in 30 CFR 77.207 can

be established without reference to specific illumination

measurements such as footcandles of light.

Penalty

 Considering the criteria in section 109(a) of the 1969 Act,

I conclude that a penalty of $150 is appropriate for the

violation.

 Therefore, it is ORDERED that Respondent shall pay a civil

penalty in the amount of $150 for the violation on September 19,

1977, of 30 CFR 77.207. The penalty shall be paid within 30 days

of the date of this decision.

 James A. Broderick

 Chief Administrative Law Judge